Life and law.
This is a story about the bonds between an extraordinary man and an extraordinary country. The life journey of Albie Sachs mirrors the history of this country. It is about an indomitable spirit in a broken body that forgives and is resurrected to toil towards attaining a constitutional democracy. The episodes of the story are linked by selected judgments of the Constitutional Court. Those who hold office under the Constitution and who exercise power are reminded of the legacy that made the transition from the apartheid state to a constitutional democracy possible. Perhaps at some level it is a call to those in power to do better, to be wiser, and not betray the sacrifices of those who invested in the past so that we can have the present.
The early sections of the book brought to mind a story that I read when preparing the appeal tribunal's findings for the Human Rights Commission in the 'Kill the farmer, Kill the boer' case. (1) Robert Faurisson, a French academic, argued that the Gayssot Acts which make holocaust denialism an offence unjustifiably diminish freedom of expression. The UN Human Rights Committee dismissed the application on the basis that holocaust denial was the principal vehicle of anti-Semitism and so the limitations on freedom of expression were justified. (2) More powerful was the comment from a presiding officerjustifying his decision to recuse himself. (3) He wrote that he was a child prisoner in Auschwitz, had lost his father and other relatives and it was therefore proper that he recuse himself.
Sachs writes about his experience of being dumped into solitary confinement under the 90-day recurring-detention laws. He describes his detention as "the worst moment" of his life. (I recall Pravin Gordhan, Minister of Finance, being profoundly affected by detention.) I wonder what dictators, violators of human rights, and those carrying out their dictates would do if they knew that the child prisoner would rise one day to become a presiding officer in the Human Rights Committee and that the apartheid detainee would hold judicial office in the highest court of the land.
One of the central threads of Sachs' story deals with state terrorism, violence and reconciliation. He survived a car bomb, but with severe injuries. The Truth and Reconciliation Commission required the nation to confront its past: the nation was horrified by the stories of the victims. The process could never, on its own, have delivered reconciliation, but it did provide a fair measure of truth. No longer were the victims faceless; they were real human beings who told us what they had done for the nation. Sachs recounts the interaction between Tony Yengeni and his torturer, Sergeant Benzien, who had applied for amnesty. In response to questions, Benzien described his method of torture, which was to place bags and tyre tubes over the heads of victims to simulate drowning or suffocation. I watched the proceedings on television and recall the emotion of tortured and torturer. Benzien became emotional when he was asked to explain to the nation how one human being could do this to another. His actions were no longer buttressed by God and the law; he stood alone. This, I think, is what Justice Sachs refers to as soft vengeance.
In the AZAPO case, victims argued before the Court that their civil and criminal remedies against the violators and the right to have justiciable issues settled in a court of law were infringed by the amnesty granted to successful applicants. (4) The legal answer to the applicants was clear: the epilogue to the Interim Constitution expressly allowed for this. Justice Mohamed, however, recognised the sacrifices and the grievances of the applicants and explained the reason for the amnesty beyond its legal basis. The Constitutional Court held that the national imperative made the sacrifice of rights unavoidable and the victims accepted the explanation. The poignancy of one concurring Justice's being a victim was not lost on observers. It is tragic that history will now remember Tony Yengeni more for dipping his fingers into the molasses jar that was the arms deal than for his sacrifices, and for giving us one of the defining moments of the TRC process. I recall Sachs saying, somewhat prophetically, at a public lecture, "we need a Bill of Rights, because I do not trust myself with the power".
It is apparent that Sachs requires more from government than just desisting from doing ill. He endorses the sentiments of Justice Brandeis that "government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example". Government as a litigator must act in a manner consistent with the spirit, purport and objects of the Constitution and not simply act strategically to frustrate the other side by relying on technical points. In Mohammed, the Court demanded that government abide by its responsibilities even in extreme circumstances. (5) Mohammed was involved in the bombing of the US embassies in Tanzania and people were killed as a consequence. He was deported from South Africa at the request of the FBI without the SA government getting an undertaking from the US that, if convicted, he would not be sentenced to death. Despite the destruction of human life, the SA government was obliged to act in compliance with the values of the Constitution. The finding was that the failure to secure the undertaking meant that Mohammed's removal to the US was unlawful.
Sachs refers approvingly to the manner in which effective policing and competent prosecutions under the law ended the campaign of bombings and terror in the Western Cape in the late 1990s. Yet criticism that the Constitution is frustrating effective delivery of justice is being heard more and more. Powerholders must exercise power in accordance with the checks and balances contained in the Constitution. We must require a compelling case to be made before agreeing that they be allowed to exercise power more easily. To do otherwise could in the long term be damaging to order.
Sachs invites us into his intellectual sanctum to witness the making of his judgments and it is an intriguing process. He writes that the assurance of the written word belies the turbulence of debates and competing arguments that are considered. Pure reason and passion have to be balanced appropriately. He uses the tools of law together with his life experiences to deal with the issues at hand. In respect of the instances where he was ahead of the legal community's understanding of the law, he seeks to "woo the readers by the persuasiveness" of argument.
Sachs exercised uncharacteristic restraint in finding that it was the role of the legislator to determine how to respond to the commercial sex trade industry in Jordan. (6) Given that the options of criminalisation and regulation were buttressed by persuasive arguments, the court held that it was appropriate that the legislator make the decision. In his joint dissent with Justice O' Regan, however, Sachs found that the law unfairly discriminated on the basis of gender, as it imposed criminal liability on prostitutes only. This was a muted compromise, but better than the decision of the majority. Clearly this judgment was counter-intuitive and much restraint was exercised in reaching what he refers to as a disconcerting result. In Dikoko, however, we see less restraint, as Sachs made a judicial plea for restorative justice in defamation cases. (7) He argues that it is incongruous to vindicate reputation just by awarding monetary compensation. A retraction and apology would, according to Sachs, repair the harm. Thousands of South Africans have forgiven those who have harmed them. Should reputational injury not also be addressed by apology and retraction? My response would be that the remedy of apology may be grist to the mill of those who sully the reputations of others. I can almost hear Sachs saying that much of what was achieved in the negotiations was driven by idealism.
In the Port Elizabeth Municipality case, Sachs talks about addressing the three constitutional imperatives of homelessness, land hunger and the protection of property rights. (8) It is this fidelity to the visions and objectives of the Constitution that permeates most of his judgments. He holds that any approach that prioritises the protection of the rights of individual property owners may be at odds with the broader vision of our Constitution. The court held that it was unjust for poor black families to be evicted from white-owned land without mediation.
Given the centrality of the enforcement of socio-economic rights to the court's jurisprudence, I expected more from Sachs' chapter on this subject. The court must balance respect for the executive against protecting the rights of the marginalised. The jurisprudence of the court has demonstrated its determination to achieve this equilibrium. Sachs argues that when it comes to protecting the rights of the marginalised, it is an advantage that judges are not elected. In Grootboom, the court affirmed the impressiveness of the government's macro housing policies but found that the failure to make provision for those in desperate need was unconstitutional. (9) In TAC, the court found that it was unreasonable for government to restrict the supply of anti-retroviral drugs to two sites in each province: the failure to accommodate the most marginalised was decisive. (10)
The limitations on the capacity of the judiciary to order the realisation of socio-economic rights was revealed in the recent Constitutional Court judgment in Mazibuko. The court refrained from giving definitive content to the right of access to water. Had it done so, a prescribed quantity of water could have been claimed as a constitutional right by all. The court reaffirmed that the test is whether government policy and its implementation are reasonable. The vaguer standard appears aimed at addressing shortfalls and inadequacies in government policies rather than a full assault on policies already adopted. In Mazibuko, government had to define the problem, describe the options it had considered and justify its choices. Further, government policy evolved as the litigation progressed. Its indigent registration policy allowed the poor to receive more than the minimum water allocation provided to all. The court upheld the reasonableness and constitutionality of the policy, obliging government to provide six kilolitres of water per month to every household.
Sachs has been quoted with approval by Canadian, Indian, English and other courts. He refers to the various instances in which his thinking has 'travelled' and been received in otherjurisdictions. This announces that our system is contributing to legal knowledge throughout the world.
In Fourie, the court held that the failure of the law to allow same-sex couples to enjoy the status, entitlement and responsibilities of marriage was unconstitutional and in violation of the rights to equality and dignity. (11) The judgment required a balancing of the zones of the sacred and secular. The Constitution could not be interpreted through the prism of religious texts nor could it direct religious leaders to solemnize gay marriages. The decision resulted in a reluctant Parliament passing the Civil Unions Act, which recognised both same- and opposite-sex marriages.
Is it appropriate for a judge to write a book of this nature which reflects on judgments that he or she has written? Could this not become a reflective codicil on judgments delivered and thus detract from them? Sachs avoids revealing any discussions that could have informed positions taken in the judgments, but his extraction of constitutional principles from inaccessible judgments presents them in a readable fashion. Given the focus of the book, there is the danger that Sachs' contributions, extraordinary as they are, may inadvertently be magnified. He is conscious of this danger, and makes repeated references to the fact that the jurisprudence of the first fifteen years represents the combined effort of all the justices that staffed the court.
The book caused me to reminisce, think, argue, and learn, and will do the same for lawyers and non-lawyers alike. It holds invaluable lessons for those within and outside the judicial system on how to be just.
(1) Freedom Front v South African Human Rights Commission and Another 2003 (11) BCLR 1283.
(2) Robert Faurisson v France Communication No. 550/1995.
(3) See the statement by Mr Thomas Buergenthal.
(4) AZAPO v President of RSA and others 1996 (4) SA 672 CC.
(5) Mohamed and Another v President RSA 2001 (3) SA 893 (CC).
(6) S v Jordan and others 2002 (6)SA 642 (CC).
(7) Dikoko v Mokhatla 2006 (6) SA 235 (CC).
(8) Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC).
(9) Government of the RSA v Grootboom 2001 (1) SA 46 (CC).
(10) MECfor Health and others v Treatment Action Campaign and Others 2002 (5) SA717 (CC).
(11) Minister of Home Affairs v Fourie 2006 (1) SA 542 (CC).
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|Title Annotation:||'The Strange Alchemy of Life and Law'|
|Publication:||Current Writing: Text and Reception in Southern Africa|
|Article Type:||Book review|
|Date:||Jul 1, 2010|
|Previous Article:||Justifiable violence?|