TRANSCRIPT: JUST CALL US ‘JUSTICE’
I remember so well the first meeting of the new Constitutional Court of South Africa. I flew up to Johannesburg. I was wearing a light, sort of summery suit that I’d bought in London with the arm cut short at the side for my short arm. Ismail Mahomed looks at me and he’s wearing a dark suit and a dark tie. There’s no colour in his life except in his head. ‘Albie,’ he says, ‘that’s not the kind of suit a judge ought to wear!’
We met in very temporary accommodation. We didn’t even have chairs. That’s not true – we had one chair. Because when, some years later, Arthur Chaskalson retired as Chief Justice, his secretary Dorothy Fouche described how terrifying it had been for her when she’s interviewed sitting on the one chair that the court had, with this tall figure going around firing questions at her. So we had one chair. And we borrowed ten other chairs.
I still remember that first day, and I’m wandering around with my new colleagues. I think I’d met all of them except Tholie Mdala, who was from the Transkei. I’d met John Didcott. I’d been at UCT with him, University of Cape Town, decades before. Laurie Ackermann I’d been at conferences, Johann Kriegler, Yvonne Mokgoro had been at the University of the Western Cape with me. Pius Langa, on the Constitutional Committee of the ANC. Ismail Mahomed I knew from Wits years back, I’d first met him.
And we’re sitting down and Arthur Chaskalson, who had stepped down from probably the busiest legal practice as a private advocate in Johannesburg to set up the Legal Resources Centre some years earlier – to take test cases under apartheid, with a view to the future and training people with different values. You can be a lawyer, not just getting a decent income and defending people who need defence but dedicating your life to social transformation and change. And he had learned the skills of delegation, of teamwork. And he asked Ismail Mahomed to do the rules of court. Laurie Ackermann to build up a library. We didn’t have one book. Everybody was given a task. Tholie Madala to get the gown. Kate O’Regan – a new thing then called computers, personal computers. And Yvonne Mokgoro and Albie Sachs were left, and he said, ‘Yvonne and Albie, can you look after décor?’
And we had to take decisions on that first day – it was simple things. What kind of car? Arthur Chaskalson was offered, ‘Do you want a BMW or Mercedes?’ He said, actually he’d like a Toyota Camry. They were kind of astonished. Head of the top court, not driving around in a BMW or Mercedes?! I asked for a red Honda, the car that blew me up was a red Honda. So, I had a kind of weird attachment to red Hondas. John Didcott – a Ford Prefect. And interestingly enough, those of us who came from privileged backgrounds, we wanted to turn our backs on privilege and the signs of having arrived. So, for us it was important not to have a Mercedes or a BMW. But people from the oppressed community – and they weren’t people who were show-offs at all, very modest in style – they felt they would get the BMWs and the Mercedes. Not a show-off. But somehow as an indication of: things have changed in this country. That black people now can be behind the wheel of a BMW/ Mercedes, not as a chauffeur but as a judge. Interesting little psychological decisions of that kind.
Justice, My Lord, they would call us, My Lord. Should we be called My Lord. We decided, no, we’re not lords and ladies. Just call us ‘Justice’. Should we wear gowns? I think a lot of us would have liked going without gowns. Just to be simple human beings upholding the Constitution. But in the end, we were persuaded that in terms of the cultures of all our communities in South Africa, to wear a gown is equalising and it’s a sign of respecting the office, not the individual.
We had to develop a style of work. And we decided early on, we don’t discuss our cases before we go into court. Should we have law clerks? And we decided to have a law clerk. A wonderful institution: a young person usually fresh out of university, full of idealism, and part of this project. Many of them have gone on now to become senior lawyers. They argue in court. The values of the Constitution are now being sustained by generations of former law clerks who’ve worked from the inside.
Chaskalson as a judge was extraordinary. After he died, I wrote that I think he might have been the greatest legal mind of the late 20<sup>th</sup> century. And I still believe that. But it wasn’t just that he was extraordinary. It was the moment; it was the nature our struggle took that gave him a role. And he was a very strong proponent of having a constitutional court with extensive powers, but based on a strong constitution, not just judges given their own way to do what’s best but a rich constitutional text. And he was astonishing as a leader on the court. Arthur would be the last to speak. There’re ten of us giving our views on a case. And we think we’ve covered all the ground. And Arthur would say, ‘Well, I see the issue a little bit differently.’ And we’d see he’s right. He’s captured it, he’s reconfigured the reasoning. And I remember Johann Kriegler saying one day, ‘Arthur when you grow up, you should definitely think about becoming a judge.’ It was his way of offering his slightly embarrassed tribute to him.
Ismail Mahomed was astonishing as a judge for almost a lyrical quality of expressing the law – in terms of empathy and passion and a rich language and expression. But sometimes he could be carried away by an idea and it wasn’t a good idea, but he would invest it with that same lyricism. And we would all kind of smile, you know, there Ismail goes. But he could go beyond any of us in terms of sheer expressivity of the constitutional vision.
I was very eager to prove myself as a real judge, to show that I could think like a real judge and fulfil my functions as a real judge. And maybe I almost tried too hard when I got on to the bench to prove that I was a real judge. I don’t know. Maybe I felt the need than I should have. At the same time, I wanted to reconfigure what a real judge is. And a real judge in the new democratic South Africa doesn’t have to be formal and pompous and aloof, not only in manner and style and the car that he or she drives, but in writing. So, from fairly early on… The traditional legal judgement would start: the applicant in this matter is a 53-year-old businessman who lives in Germiston or whatever it is. The defendant is or the respondent is – a description like that – the minister or whatever… On such and such a date this happened and that happened and the other happened… and you get to page three before you know what the issue is. And I thought, ‘Boring, boring, off-putting!’ These cases are so dramatic! They’re so interesting. Start off with what the issue is. Proclaim it. ‘Da, da, da, da!’ [sings]. That’s Beethoven. And not in purely technical language, but in a manner that grasps the attention of anybody reading – a journalist, a law professor, a law student, another judge in another court. So, from the beginning, whenever I wrote, I wrote in those terms. In a way it wasn’t even to make a point. That was how I saw the law.
So, the one opening statement was a concurring judgement I gave in the sodomy case, where we struck down the criminalisation of sodomy. Wonderful judgement, main judgement by Laurie Ackermann. But I felt I wanted to say something more. So it starts off with, ‘O_nly in the most technical sense is this case about who may penetrate whom, where._’ Now that wasn’t the traditional way of opening a South African judgement but that was the answer to the argument that it’s irrational that if a man is engaged in an act of sodomy with a woman, it’s not a criminal offence. If it’s with another man, it is a criminal offence. Therefore, we must strike down the law. And I felt, that’s not the reason we’re striking it down. We’re striking it down because there’s a tradition and a culture of repression in our society that denies the expression of homosexual love and affection. And that’s why we have the law and that’s what we’ve got to deal with and respond to. So, I began with that strong opening statement.
So, it was partly a form, a mode of expression. And sometimes people would say, ‘Okay Albie, we need an Albie paragraph here.’ The opening paragraph and often the concluding paragraph would be what we called ‘an Albie paragraph’. It’s a style of telling the story that would be more dramatic.
I would use sources that were strong for me. When it came to the Joe Slovo Settlement case – informal settlement case – the people living in shacks next to the N1 were being evicted. And one of the issues was, were they unlawful occupants? I think the majority opinion on the court was, well, they were. The Council allowed them to settle there but could tell them when to go and that was the end of the matter. And I felt, to understand whether they lawful occupants or not, you have to look at the duty on the Council to provide a place to live. And I quoted Sol Plaatje, 1912, in that beautiful book he wrote, Native Life in South Africa, about, ‘We woke up and we were pariahs in our own land.’ And he describes… it’s an exquisitely painful paragraph of a family on the road, there’s nowhere they can stop, and they can’t even bury their child. So, they wait ‘til nightfall, and they bury their child on a piece of land in the secrecy of darkness. He said, even the murderer dropping the six feet into the grave has a marked grave, and here they couldn’t bury their child. For me, that explained the landlessness in this country, and it was part of the story that had to be involved in how we interpreted phrases like ‘unlawful occupant’.
It was Ismail Mahomed who said, there’re some constitutions that simply consolidate the incremental advance of fundamental rights of the people and prevent any going back. The South African Constitution is different. It represents a rupture with the past. The past was cruel, the past was divisive, the past was uncaring. And it opens the way to a future of a caring and compassionate society in which the dignity of all is at the centre. And it was that notion, beautifully expressed by Ismail, that really captured what I think all of us on the court felt.
