ALBIE SACHS INTERVIEW: CONSTITUTIONAL COURT ORAL HISTORY PROJECT INDEX 1. THE FIRST MEETING OF THE JUDGES: NOVEMBER 1994 1 2. A MOMENT ON THE ROAD TO BECOMING A JUDGE 3 3. A SECOND MOMENT ON THE PATH TO BECOMING A JUDGE 4 4. A PAINFUL INTERVIEW 5 5. SETTING UP 10 6. THE CHIEF JUSTICE DELEGATES TASKS 12 7. THE LEADERSHIP OF ARTHUR CHASKALSON 14 8. WORKSHOPPING DECISIONS 15 9. HEARING ORAL ARGUMENT 16 10. LAW CLERKS AND FOREIGN LEGAL DECISIONS 17 11. SOME EARLY CASES: Capital punishment, Certification of the Constitution, Gay rights, Housing rights, the Rastafari matter, sex work and others 24 12. DIVERSITY OF THE JUDGES 30 13. ON LEAVING THE COURT 60 14. THE ISSUE OF RACISM 67 15. THE MEDIA 73 16. HUMANISING THE COURT 74 17. THE BUILDING 81 1 Albie Sachs Constitutional Court Oral History Project Interview One: 15th November 2011 Interview Two: 16th November 2011 Interview Three: 10th January 2012 Interview One: 15th November 2011 THE FIRST MEETING OF THE JUDGES: NOVEMBER [?] 1994 AS That first meeting, eleven very excited people…the word motley comes to mind…what a motley group we seemed to be. We didn’t look like eleven judges to me. And in my own case, the first time I heard a voice saying, Judge, I didn’t respond, but looked behind me. I wasn’t used to being called a judge. But we really came in different sizes and shapes. There were the deep booming voices of the guys who’d made it through the Bar, sharp elbows, hearty laughter. John Didcott, very forceful, very brilliant. Johann Kriegler, quiet until suddenly his voice came through, boom! Laurie Ackermann, waiting for his moment and then creating a space in front of him and coming through in a very authoritative way, a distinctive cadence in the bubble of silence he had created in a crowded room. Yvonne and Kate, quiet, listening, smiling, but not thrusting themselves into this kind of hearty conversation. Pius, very assured but also very, very thoughtful, very quiet. Tholie Madala, who’s the only one whom I’m now meeting for the first time, the word stately comes to mind. He just had a stately presence and style. Quite a rich voice. At that stage Sydney Kentridge was an acting judge, and Sydney would time his melodious interventions impeccably - somehow, when he started talking, others stopped talking. There was just something about the moments he chose, the mellow voice and the sense of enormous experience and sly humour always there. I have no idea how I sounded to the others. I know that at one stage Ismail Mahomed, perhaps the most striking figure and complex personality of the whole group; spark, who could lapse into deep silences, and suddenly burst outwith brilliant observations, berated me unceremoniously: Albie, he said frostily, that’s not the kind of suit a judge ought to be wearing! And this was, I think, in November, it was hot, and I had on a suit I’d bought, fairly stylish, in London, made of a summery poplin material. And I thought, what kind of suit ought a judge to be wearing? And in a way this was part of the theme that was going to preoccupy us. A new judge, newly appointed for a completely new court, in the new South Africa, with a totally new Constitution. What does it mean to be a judge? How do you conduct yourself? How do you appear? How do you work? If I remember correctly, it was at that very first meeting that we went through a long agenda of decisions that had to be taken, all revolving around what a judge should be like in the new democratic South Africa. Maybe we didn’t reach finality in relation to each one of them at that moment. They were all specific: how should we be addressed, that was one issue. It 2 seemed very simple, very banal. And yet there’s so much history laden onto that simple thing of, are you called, “My Lord”? And now, because we have women, it’s “My Lady”. And “Honourable”.All these were, to my mind, leaden, antique imported forms of purportedly honouring the judge, but I found actually dishonouring the person, as if to say, you can’t make it on your own without the title, somehow you’re not deserving of respect simply as yourself. And very quickly we decided we didn’t want to be called ”My Lord”, or be referred to as Honourable, it would interfere with our work, the new democracy, to have these honorific impediments to natural, open, and direct dialogue and conversation. Another question: How should one dress? Should we wear a gown or not? That was more difficult. And many of us were, I suppose, super democrats, and thinking, well, you know, the gown is a symbol of authority, it cuts you off from ordinary people. But I think intuitively we felt a gown would be appropriate. I suppose the usual arguments came up: that the gown shows that you’re not just a subjective person, you’re an incumbent of an office; it displays equality between all the people sitting up on the Bench, because you’re all wearing the same gown. And in the end, without much difficulty, as I recall, we decided we would wear gowns, that somehow it fitted in to a South African, African sense of acknowledging the role, the special role, kind of a status role if you like, of the incumbents, you would wear a gown. It’s not like…or perhaps in some ways it is,akin to the skin that the elders and the leaders of the community would wear. So we should have a gown. But then we decided we wouldn’t simply take over the gowns that were being used by the other South African judges, black for criminal matters and scarlet for civil matters. We were a new court. And we weren’t simply a branch of the existing judiciary. We were a court that was established specifically to ensure that the values, the principles of the new democratic era, would seep in to and infuse the total functioning of, not only the judiciary, but all exercises of public power. So it seemed appropriate to us to have a gown of a different appearance to signify the special role, function and status of the Constitutional Court. And we chose green, a kind of dark green, with black and red on the cuffs and a white bib. I might say, anticipating a little bit, it wasn’t super elegant! But at that stage the question of style and being spruce, wasn’t uppermost. And I think the green gowns became a distinctive feature, and sometimes our critics would speak about those people in the green gowns up on the hill in Braamfontein, in a slightly dismissive way. We had a whole series of other little foundational questions like that, and to the extent that they appeared to be banal, sometimes it’s these banal details that are more telling than the grand gestures, because they are everyday and ordinary and become distinctive. Well, that’s just like a little aperitif in a way of how we started. I’d like to deal with two themes before moving on. The one is the different roads we took getting to the Court. And the second is, how we started conversing amongst ourselves. 3 A MOMENT ON THE ROAD TO BECOMING A JUDGE So first of all our different roads of getting to the Court. I won’t repeat the long interview that I gave you as part of the oral history of the Legal Resources Centre. I don’t even remember what I said in it, but I’d like to focus on my personal journey to becoming a judge. The first moment that comes back to me was, I’m in exile, I’m completing my PhD at Sussex University, I’d tried to get out of law, been there, done that, at the Cape bar for almost ten years, it was exhilarating, testing, battling, exciting, horrible, marvellous work, and now I’d wanted to do something different. So I thought I’d do a PhD, that will give me time to find a completely new career. And the theme that pounded in my head was the contradictory schizophrenic nature of the courts where I’d worked. We’d used the words of justice, fairness and equity, there would often be very polite discourse with reason running right through everything we did. On the other hand, the law had been responsible for a hundred people being executed every year, thousands being flogged, beaten, in the name of the law;a million people prosecuted under the Pass Laws each year; hundreds of thousands going to jail;huge numbers evicted from their homes, all under the law, as being enforced by the courts. How could that same institution manage both? And so my PhD was entitled: Administration of Justice in a Racially Stratified Society, South Africa 1652-1970. 1970 was my last year at Sussex University. And the dissertation is complete and I have to write the closing the words, what should they be? My thoughts veered from the one hand to the other. (I still had two arms then!) This was not long after the student rebellions in Paris, and the powerful demonstrations in the United States against the Vietnam War, a time of critical, alternative studies in all sorts of different academic areas.