High Up On Constitution Hill
The Constitutional Court was born in the new South Africa. Unlike other courts, it carries no history of being complicit in enforcing apartheid laws and it is structured completely different to any other court in South Africa. It is the highest court in the land and is housed in a specially-constructed building in Braamfontein, Johannesburg.
“In 1991, we had a workshop organised by the Community Law Centre, now the Dullah Omar Law Centre, at UWC, together with the ANC Constitutional Committee, on what kind of judiciary we should have in a future South Africa,” said Albie Sachs, who was then on the ANC Constitutional Committee and who later became one of the first Constitutional Court judges. He was appointed by President Nelson Mandela in 1994 and served the court for 15 years until his retirement in 2009.
“At the workshop, one of the big issues was whether we should have a Constitutional Court, which was new in all the former British Commonwealth Empire countries.
“Our court was significant in two respects: one, it became the top court in the land, providing leadership in terms of the values of the Constitution to the whole judiciary; and, second, the Constitutional Court had to certify that the Constitution, passed by the Constitutional Assembly, complied with 34 principles agreed to in advance at Kempton Park. I remember sitting on the bench and seeing people who had been my comrades in the ANC sitting now in the well of the court.
“We declared the Constitution to be unconstitutional. I don’t think this has ever happened in history because, although overwhelmingly, it complied with the principles, in nine respects it failed to do so.
“Interestingly, one of the reasons why we sent it back related to the independence of the Public Protector. We said the independence had not sufficiently been guaranteed by the Constitution-making body, and we sent it back.”
Sachs said that there are 11 judges on the Constitutional Court, including the Chief Justice and his deputy, and decisions are taken by majority vote. The court does not sit with less than eight judges present.
“We have never had a four-four or five-five split, even though we came close at times. These relate to decisions on the outcomes of cases, the most important work of the court. With regards to decisions on whether to hear a matter, we do not require a majority. If there is any judge that feels very strongly that there is at least an arguable case, then we will hear it.”
Judges sometimes write minority opinions, but they also sometimes write opinions to add to a judgment with which they agree, said Sachs. “We felt it very important that each and every judge gives his or her opinion, and sometimes you sign onto what somebody else writes, but often we would write on our own.”
One of the first big cases that the Constitutional Court had to deal with related to capital punishment, said Sachs. “There could not have been a more dramatic case. There were more than 400 people on death row. Their lives were literally dependent on our decision and our Constitution could not agree on capital punishment. The ANC hated the idea, Mandela had been nearly hanged, and the old South African government could not imagine a State that did not hang citizens. The Constitution said nothing directly about capital punishment, whether it is permissible or whether it should be abolished.
“We decided unanimously that capital punishment violated the whole right to human dignity and respect for human life as enshrined in our Bill of Rights.”
One of the other cases dealt with corporal punishment, and the whipping of children, added Sachs.
“Thousands of young people used to be caned. When I was locked up in the Wynberg Magistrate’s Court’s police cells under the 90-day law, I used to hear the kids being beaten after court every day. We decided that the deliberate infliction of pain can’t be an effective method of instilling a sense of justice among people in the community.
“We had very important cases dealing with customary law, and the main principle with which we came up with was the notion of living customary law. That customary law is not a set of rules from the 18th or 19th century that remained unchanged and had to be applied now. Customary law changes as the lives of the people change. This meant challenging patriarchy and male domination in the family. Under customary law, girl children could not inherit, the eldest male relative would inherit. We declared that to be unconstitutional.
“Under customary law, the wife would be under the control of her husband, as far as property was concerned, and even after death, she could be under the control of her son or a male figure. And we declared that to be unconstitutional.
“We had a very interesting case from the Baloyi community. They wanted a woman to be their traditional leader, their Hosi. The royal family wanted that, the community wanted that, but the son of the previous Hosi challenged that and said that they could not choose or elect a traditional leader, a traditional leader is born in terms of the male lineage. We said that customary law evolves, and if the community wanted a woman to be their leader, then customary law takes that on board.
“What was very moving for me is that the court was packed with women who came down in two buses from the Baloyi community area. The one busload filled the court from 10 am to 11.15 am, and then they went out, and the other busload from 11.30 am to 1pm. At the end of the proceedings, Pius Langa, who was then Chief Justice, speaking English but through his law clerk who spoke Tsonga, thanked the women for the patient way in which they sat in the court, listening to the proceedings, not in their language, very technical, but he just thanked them for their dignity.
I feel very proud of a court that is so welcoming and so open.”
Sachs continues and says that the Constitutional Court has had important pioneering cases around enforcing socio and economic rights as fundamental constitutional rights.
“The best-known case is that of Mrs Grootboom, who had been evicted with a thousand other people, including many children, and finding themselves on an open sportsfield near Cape Town with the winter rains approaching. An attorney took the case to court and it eventually reached us. We knew this was a big one and we had to decide how do we give meaning to the right, under the Constitution, that everyone has access to adequate housing but, at the same time, not make the court intrude too much into the sphere of government and the legislature.
“We followed the text of the Constitution, saying that the State must take reasonable steps, progressively, to realise the rights within available resources. By then, the government had built hundreds of thousands of homes and given them free to people living in shacks, and by the national standards, was progressively realising the rights, but the government made no provision for people in extremely desperate circumstances, and to that extent the programme was unreasonable.
“In a later case, also dealing with evictions, we declared that, if people are evicted or threatened with eviction, the courts had to consider whether alternative accommodation is available for them. It reinterpreted land law completely in South Africa. The old attitude that, if you are the owner, you can push people off the land, No, that’s the role of the court.
“We came up with an order of what we called meaningful engagement, that the occupant and the council trying to get the eviction, have to engage meaningfully to try and find practical solutions that would basically ensure alternative accommodation.”
Sachs said that many of these cases have been studied and used all over the world.
“I remember well a case that dealt with the rights of children of prisoners, and the duty of the court to take account of the rights of a child when deciding whether or not to send the primary caregiver to jail. In that case, there was somebody who had been in persistent credit card fraud, and been given many chances, but she pointed out that her children were living in a very fragile area – she had three teenage boys – and she was the only one to look after them. It wasn’t for her sake, but for their sake, that we eventually ordered, by a majority, that she do community service in the spirit of restorative justice. That case has also been around the world.
“More recently, of course, the court has been making a number of findings against the President, but the precedent was set by us in 1995 already when we struck down measures adopted by President Nelson Mandela, to provide the structures for the first democratic local government elections. They were very good measures, which Parliament had asked him to adopt, and we said that it was an important matter of constitutional principle that the legislature itself passes legislation.
“We can’t entrust it to the President, even if it is the wonderful Mandela. It was extremely inconvenient for Parliament.
But Mandela accepted it with enormous grace and he said that he as President must be the first to show respect for the Constitution as interpreted by the Constitutional Court.
“For me, that day was as important as 27 April 1994, when we became a democratic state, because that was the date when, thanks to Mandela, we became a constitutional democracy, when the highest leader in the land accepted the primacy of the Constitution as interpreted by the court.
“Another very important case was the Treatment Action Campaign case, involving the provision of anti-retrovirals to women living with HIV about to give birth. The ARVs reduced the transmission of the virus then by up to 50 per cent, now it is up to about 90 per cent.
“It is well-known that the President at the time had serious doubts about the existence of the HIV virus and, implicitly, about the efficacy of anti-retrovirals.
Nevertheless, on the evidence before us in court, we said it was unreasonable for the government to restrict the provision of the ARVs to only two sites in the nine provinces. We declared that the government was under a duty to make it available throughout the country.”
Sachs said that there was no danger of judicial overreach as far as the Constitutional Court was concerned.
“The court is given a job to do under the Constitution, very expressly. It is not inventing its power. The powers are there in the Constitution. It has a duty to declare laws and conduct that is unconstitutional, to make a declaration to that effect.
“It really depends upon the behaviour of the legislature and the behaviour of the executive. What the court has done has been, in some cases, to rely on the Public Protector’s report. That is not overreach, it is enforcing the report. There is the very well-known Nkandla case, and it has criticised the President for not doing the job given to him by the Constitution.
“My sense was that there was acclamation throughout the country for the judgment very vigorously given by the Chief Justice who had been appointed by the President. Also, the court criticised Parliament for failing to demand accountability. Since then, Parliament has become more vigorous, more effective, doing its work with more vibrancy. So, far from the court’s intervention having the effect of diluting the powers of the legislature, squeezing the legislature, it had exactly the opposite effect, helping the legislature to fulfil its functions.
“There has been another series of cases dealing with employment by the executive or by certain public bodies where the executive has a big role, and the reason for the intervention has been evidence before the court that the appointments have been irrational. For example, if somebody has been declared to be a person who tells falsehoods under oath in a court, to make such a person occupy a senior position as a policeman who is supposed to investigate dishonesty, that is irrational. It is very hard to make out a case to say that is overreach.
“It is very hard for me to see that these would be examples of overreaching.”