TRANSCRIPT: BOUND BY THE CONSTITUTION
This was a very extraordinary time for me. I'd been a lawyer, I'd been a prisoner, I'd been a witness, I'd been a prosecutor even for one week. I'd never been a judge. And now I'm a judge sitting in my robes, with the extraordinary powers that we’re given, with brilliant colleagues, wonderful colleagues. And with a wonderful, wonderful Constitution. Whew! Being a judge was thrilling. It was exhilarating. It touched on emotions, vision, what it means to be a South African, rights for people, humanity. It was a marvellous period of my life. It was also very complicated and filled with decisions that you had to make.
One of the first cases we had involved a challenge to proclamations issued by Nelson Mandela, president of the country, in order to provide the structure for the first democratic local government elections. It was a manifestly progressive and good set of legal instruments, and we struck it down. We struck them down on the basis that Parliament had the duty to adopt legislation, and they couldn’t entrust that duty to the president. It was extremely inconvenient. They had to fly people down to get the legislation through in a hurry. And he said he’d adopted those proclamations on the basis of legal advice given to him. He now accepted that legal advice was wrong. And he said, I as president must be the first to show respect for the Constitution, as interpreted by the Constitutional Court. And for me, that day – I don’t know the exact date – was as important for South Africa, for the world if you like, as April the 27<sup>th</sup> when we all voted as equals for the first time. Because that was the day when the president of the country, with that enormous respect and prestige that Nelson Mandela had, declared that he was bound by the Constitution and that he willingly accepted the rulings of the Constitutional Court. That was the day we became a constitutional democracy, not just a democracy.
And when it came to ANC presidents, Thabo Mbeki was not happy, I’m sure, with our decision on Treatment Action Campaign in relation to Nevirapine to pregnant women about to give birth. But he accepted it. And from then onwards the programme rolled out. He was not happy with our decision that prisoners should have the right to vote. But he accepted it. So there might be a gracious acceptance, as in the case of Nelson Mandela and almost, I wouldn’t say a pleasure, but almost as if to say: ‘And you see what a marvellous country I’m the president of?’ It’s not a defeat. It’s a victory for the themes that he was struggling for and a welcoming of the Court playing the role that he wanted it to play when it was established. That set a very wonderful example for South Africa and for the world.
One of the hot issues we debated in drafting the interim constitution was to abolish or to authorise capital punishment. There were four hundred people on death row. South Africa used to execute a hundred people every year. It led the world in terms of judicial executions. They even had a gallows in Pretoria with six or seven nooses so that they could hang six or seven people at the same time. That was South Africa. The apartheid government just couldn't imagine a state that didn't execute its citizens. For them it was fundamental. It was part of the whole concept of kind of accountability and punishment. And the ANC was totally against capital punishment. Mandela had almost been hanged himself. And it just seemed unthinkable that in our new, democratic, caring society we could put a rope around the neck of somebody who’s not resisting and snuff out that person’s life. We couldn’t delay the elections because we couldn’t get agreement. And it’s one of those issues – you can’t say ‘Well, we’ll have a little bit of capital punishment, or not so much.’ It’s either yes or no. So, it was agreed by the negotiators that we would leave the issue to the Constitutional Court.
The very first case we had in fact dealt with the constitutionality of capital punishment. It was a powerful case. The court was packed. The journalists were there and people from all over the world interested in capital punishment were there. And the question was, was it permissible in the new democratic South Africa to continue to kill people because they’d killed others. It was a dramatic case. And ultimately all the judges decided for different reasons that capital punishment was completely out of sync with the whole value structure of our new Constitution, our Bill of Rights, that put human dignity at the centre of fundamental rights for people. And we decided: given the right to life, given the prohibition against inhuman and degrading punishments, and given the central role given to the protection of human dignity, our new constitutional order did not permit capital punishment. And it’s not only the dignity of the people being hanged that was manifestly being destroyed. The dignity of the whole society. A magnificent judgment by Arthur Chaskalson. It was absolutely magisterial. To this day it stands up. It’s being used all over the world as a primary example of how to deal with the balancing out of all the different interests that were involved.
And I was living up in Bellevue at that stage and shopping, getting my milk and newspapers and suddenly somebody’s pushing me down to the ground and I see their people with knives, and they take our wallets and everything else. Zak Yacoob was walking in the street with his wife one day and somebody held a knife to his throat… So, we weren’t immune to the problems of the country. But that didn’t make us twist our decisions, for example, on criminal law, in a way that defied the Constitution. But it also meant that we didn’t insist on purely formalistic defence of rights that would be unrealistic in practise.
So, when it came to bail, we accepted the arguments of the state that there were certain circumstances where the public, the community, were so enraged – a child killer being released on bail immediately – it threatened the whole community. They couldn’t accept that. In those circumstances the court could think twice about releasing… That automatic right to be released had to be related to the living circumstances, particularly in the poor areas where gangsters and thugs could dominate and terrify witnesses. And we had to give the courts power to take account of those circumstances when deciding to grant or not grant bail.
Minimum sentences, I don’t think any of us were enthusiastic about minimum sentences. But the public was very concerned about rampant crime, about corruption. And Parliament took a decision, a strong decision: fifteen years minimum for corruption, unless you can show special circumstances. And we upheld the validity of that. Fifteen years minimum for homicides, for murders. But we insisted there must be escape clauses. There has to be some scope for exceptional circumstances to be given appropriate weight. But maybe reluctantly we accepted minimum sentences.
And we had cases dealing with corporal punishment. South Africa used to order whipping for juveniles. When I was locked up in Wynberg Court Prison Cells, I used to hear the kids being whipped about 5 o’clock in the afternoon, screaming, screaming, screaming. I couldn’t bear it. One, two, three, four, five, six, the screaming would get louder. How can human beings do this? And I’d come out to do my half hour exercise and I’d see bits of broken cane on the floor and the warders drinking their coffee and reading Die Burger. Phew. We abolished corporal punishment as a judicial punishment. You don’t make people better by beating them, by inflicting pain.
I think also we were aware: this is the first democratic Parliament in South Africa. And as a court we didn’t want to be over-intrusive in terms of policy questions, gauging public mood. But when it came to fundamental rights – capital punishment, rights of gays and lesbians – there we took a decision. We felt the Constitution says you take account of public opinion, but you’re not dominated by it. Otherwise, they’re not fundamental rights. So, there’s that constant weighing up, weighing up, weighing up in the context of South Africa.
And there was a whole range of questions where we had to develop new law, new ways of thinking. I’ve just, as I’m speaking now, come back from a conference in Europe. I was invited by a judge – she’s on the European Court of Human Rights. And we had dinner one night with another judge on that court. She’s from Ukraine, the other judge was Croatia. And they were saying how much they look forward to getting the decisions of the Constitutional Court of South Africa because it’s so thoughtful. And it’s not formalistic, and it’s not technical. It’s dealing with the real lives of real people and that can help them in Europe deciding cases on similar issues there. You can imagine how proud, how proud I felt.
In October 1994, eleven Judges were appointed to the first Constitutional Court of South Africa. Initially, the term on the Court was ten years. It was extended to 12. And for those of us who hadn’t been judges, to 15. And I was so glad to have the extra years. My last case sitting as a Judge happened to be something very close to my heart. It dealt with the claim of very poor people living in shacks, wanting ventilated pit latrines. And the provincial government laid on concrete pit latrines. And they said they’re waiting, waiting, waiting for housing and they want ventilated, improved latrines. And people from the community, maybe 5 kilometres from the Court itself. had walked to save money on taxi fare, to hear their constitutional complaint heard by the top Judges in the land. And the advocate who was appearing for the provincial government opened with an apology. He said, I must apologise to the Judges. The province had promised housing and three years have passed; the housing hasn’t been provided. And Dikgang Moseneke, who was presiding in the court, said ‘Don't apologise to us, apologise to the residents.’ And it was Advocate Madlanga, who’s now one of the very senior Judges on the Court, turned and, speaking Xhosa, apologised to the people from the community, it was a beautiful moment.
In the end we decided not to make an order giving them ventilated improved latrines – because now the houses were going to come soon. It didn't make sense to invest money that could go in the meanwhile on street lighting, on extra houses. And I remember the counsel who appeared for the community people stormed out of the Court. She was furious she didn't win. But they’d won indirectly, their case had been heard, the issue had been raised and… and it sped up the process. And that was our last case.
And finally, it's the last day. People are there with their cameras, interviewing four Judges now. We were four of the original eleven Judges, all leaving at the same time. ‘Well, Justice Sachs, how does it feel on your last day on the Court?’ **‘**I don't want to go.’ ‘No, but how do you feel?’ ‘I don't want to go!’ How do you feel? I was like a child. And it wasn’t just ending at the Court, it seemed like the end of a whole journey from age of 17, sitting on a bench marked non-whites only. Following through the resistance, the work in exile, the writing, the campaigning, the new Constitution, being on the Court. There was a continuity – from being an outlaw to becoming the most legitimate of all the lawyers in the country. And it was like it was journey’s end.
