Adrian Friedman Constitutional Court Oral History Project 18th January 2012

Int This is an interview with Adrian Friedman and it’s the 18th of January, 2012. Adrian, thank you so much for agreeing to participate in the Constitutional Court Oral History Project.

AF My pleasure.

Int I wondered if you could talk about early childhood in terms of family and intellectual development, as well as a sense of key events that may have formulated your interest in the legal trajectory as well as issues around social justice?

AF Okay. I grew up in Johannesburg, I went to a government primary school, just near where we lived, and then a Jewish day school for high school. Then I took a year off after that and studied in Cape Town for a while and then I did my law degree in Johannesburg. I guess from a social justice…as far as your question about social justice is concerned, my father is a political analyst, and when I was growing up was a journalist, and he is very interested in, and has always had a strong sense of social justice which he passed onto all of his children. My mother is a trained attorney, who now acts in the human rights and public interest law sector. So she also has had a long history of being involved in the law and also in social justice issues. So I just think…I don’t think either of them went out of their way to indoctrinate me in that sense or to try and persuade me to go in one or other direction. I think it’s just more a case of both of them had a strong sense of social justice, and I think at least part of it rubbed off on me to an extent. I wouldn’t say that my mother’s being an attorney made me be keen to be a lawyer. It’s really one of those things where I just got sort of taken in that direction. It wasn’t like I grew up dying to be a lawyer. It really just…I just got almost dragged in that direction after school really, and then I developed a passion for it while I was studying.

Int I’m also curious, growing up in South Africa at the stage that you did, how much of sort of racial disparity and social injustice and an apartheid narrative were you privy to growing up?

AF Well…so my school was a government school, so it was all white, until standard five, now called grade seven, when there was actually a referendum of parents about opening the school. The majority voted yes, and then there were a few black children admitted when I was in standard five, but very few. So until then I had no access to black people…well, black children as peers. I was very…well, I was conscientised about apartheid to a great degree by my parents. My father in particular was very…it was a constant… theme that we just picked up on. He was very obviously politically active…I wouldn’t say

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active, because he was never an activist or an ANC member or any of that, but he was very active in political issues, which just rubbed off on us, so I myself had a great interest in politics as much as a child can, but because of him. And we were close and so I was very interested in those sort of issues. So knowledge of apartheid and its injustice was an on-going thing for me because of my parents.

Int And I’m also curious, in terms of the year that the school opened up, the referendum, was it towards the unbanning or was it previously?

AF Ja, so I was in standard five in ’91, so it was after Mandela was released and…but it was before the national referendum on whether to proceed with negotiations, which was in ’92, if I recall. So I’m not quite sure the exact legal basis for the referendum, but that’s just my weakness on history at the moment. But I mean, I’m sure…you know, it was part of the…it was certainly after Mandela was released.

Int And I also wondered, in terms of a legal trajectory, did that happen instantaneously or did you have to find your way before you came to study law?

AF Well, I was a little bit of a sort of lost soul in the sense of I didn’t really know what I wanted to do after school, and I was lucky, I suppose, in a way, to be surrounded by…to have a group of friends, one of whom in particular was very influential on me, who was very driven, and very motivated, just to succeed. In fact, in his case, financially. But, you know, he, for example, started his own business and then gave the business up in order to study a BCom and sort of made it his goal to get distinctions in every subject and things like that, and he and I just spoke a lot and he recommended to me to try law out. And at that stage I really didn’t have much of a passion for it or anything like that, I just wanted to do a degree which would be a serious professional degree. And then I started…and because of his approach, I too started with the intention of doing as well possibly academically as I could, and then as soon as I started doing that, when you’re applying yourself in that way to your subjects, you obviously…it’s very hard to do it unless you start developing an interest for it. And so it came in that way, the interest then came from that. And then as my degree progressed I developed a very strong interest in it, which then led to coming here…well, coming to clerk at the Court and then later on working in a human rights NGO. So it was really a flip…you know, it wasn’t like some people who start out with a passion for social justice issues and decide, well, the way to achieve it might be as a lawyer, or whatever. It was the other way around. I sort of started doing it and then developed the passion.

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Int I’m also curious… you mentioned that you had gone to Cape Town to study, was that at UCT (University of Cape Town)? Did you start your law degree there?

AF No…well, yes and no. It was yes, it was at UCT (University of Cape Town), but not a law degree. I took a year off completely after matric and worked for my friend’s business, and inconsequential jobs, bookstore and things like that, and then I decided to do a BA (Bachelor of Arts) at UCT. So I went and did the BA at UCT but I came back to Johannesburg to do the LLB. And in fact I didn’t even complete my BA at UCT. So after two years I abandoned the BA at UCT, came to Johannesburg, and because I was a bit older than a lot of people, I decided to do the straight four-year LLB (rather than doing another degree first) just to save time.

Int And you were at the University of the Witwatersrand?

AF Ja.

Int And I wondered whether you could talk about the legalistic bent at the university at the time in terms of the law school? Was there an element of human rights, constitutionalism, public interest law?

AF There was…there was some…there still are, to an extent, but much more then, some leading public law academics. So people like Cora Hoexter, who is a leader in administrative law, is still there and was there when I was there. Iain Currie, Jonathan Klaaren, so there were some big names from a constitutional law point of view. I wouldn’t say that constitutionalism and human rights issues was necessarily sort of deeply…you know, a huge focus or a noteworthy focus. There was, and still is, a Law Clinic, which was run and is run by a man called Peter Jordi, who is extremely effective and very, very, very committed to social justice issues. In his own way. He’s quite an eccentric guy, but…and so in final year when I was in the Law Clinic that came through very strongly. But before that it was more really a case of just, if you had an interest in it there were good people to teach you, but, you know, I wouldn’t say there was anything necessarily particularly overt to try and encourage people to move into that sphere. But if you were interested in it of your own accord there were certainly great people to encourage you and to help develop an interest in it.

Int I understand that you spent some time at the Legal Resources Centre, and I wondered whether that interest in the Legal Resources Centre and public interest law developed there at Wits, at the Law Clinic?

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AF No, I would say more through my time as a clerk at the Court actually. The Law Clinic was a good opportunity to see work which is not dissimilar to what the LRC (Legal Resources Centre) did; the method is different but the way one would consult, the way one would take instructions, etc, was very similar, but I wouldn’t say I went to the Law Clinic and then suddenly decided I wanted to go to the Legal Resources Centre. I would say more, I came to the Court, which was always something from almost the beginning of my law degree that I wanted to do, and then while I was here that’s where I started developing that kind of an interest.

Int I’m also curious at what point you developed an interest to be a law clerk at the Constitutional Court?

AF I would say very close to the beginning of the degree, because I went to Wits with a bit of a blank slate, as far as passion for law is concerned, as I said, and I started getting into it, but soon after I’d started I realised that the subjects that interested me the most were public law subjects, and particular constitutional law. There’s an introductory course in the first year, which interested me a lot. We had a lecturer called Marius Pieterse, who’s still at Wits, who’s fantastic, and he really…the way he taught the course made me really interested in it. And very soon after that, I think…you know, I came to university…to the law degree, and I was a little bit older than quite a few of the people in my class, but there were colleagues of mine, you know, people who I developed friendships with, who were a bit ahead of me in their degrees, who are friends to this day, and they…somehow through that, somebody told me that there is this programme. And then I started reading about American law, and realising that in America they have a similar thing and it’s actually a common thing around the world; as part of my studies, you know, you pick it up, and a combination of the two made me realise that it’s something that you can aspire to here, and you can apply for here. And then I just from then onwards was really keen to...

Int So you didn’t go the normal route of articles or pupillage early on…?

AF Absolutely, ja, exactly, so I applied to come and clerk at the Court straight from university and came straight from university.

Int And I wondered whether you could talk about the process of applying and interviewing here?

AF Sure. Well, I can’t remember exactly how I found out about deadlines and that kind of thing, but I think, if I recall, they advertised it on the website, and you know, I just was…again I benefitted from the fact that colleagues a year ahead of me had applied, so I knew what the process was like, I knew roughly what dates I should be looking out for. So I worked out when that was and I

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put in the application, and then…actually it was quite traumatic because I didn’t hear from the Court, and other people in my year started hearing from the Court, and you know, it sort of trickles out that, oh, this person heard that they’ve got an interview, and that kind of thing. And then I still didn’t hear, and I didn’t hear, and I basically became convinced that I just hadn’t been selected, because you knew from anecdotes that what would happen is if you had been given an interview you’d be probably notified a lot earlier than people who were declined, because they obviously set up the interviews first and then ultimately got down to just sending sort of, sorry, thanks for your interest, but no thanks letters. So I sort of was in no man’s land at that point, and had sort of written it off basically. And so then I decided to just pursue…I’d put in as security articles applications and so I started going to those interviews and just sort of moving on. I was very disappointed. And then out of the blue one day, during one of the university holidays, it was in July, I got a call from Judge (Yvonne) Mokgoro’s secretary, who ultimately is who I worked for, and she asked me to come for an interview. So the interviews were all held at the same time, so it wasn’t a case…it wasn’t so…it wasn’t that the other people had been interviewed and selected yet and I was sort of at the end. But because there’d been such a long time before I was notified it was just traumatic waiting for it. Then I went to the interviews which was really, everyone does it together, so you…we were at the old building then, so it was…you basically you all rocked up in the foyer, sat in the foyer and waited to be called. But before that happened, I asked the secretary who I was interviewing with, and so she told me Judge (Yvonne) Mokgoro. And that was it. But another thing I’d been told by other people who’d gone through it is that some people get interviews with eight judges for example, and some with one. And obviously statistically you assume that you’ve got a greater chance of being selected the more judges you see. So then I started panicking, well I’m only seeing one judge, what happens if she doesn’t like me, then nobody will take me. But it ultimately turned out that I was seeing Judge (Kate) O’Regan as well, and it turned out that Judge (Kate) O’Regan was interviewing for two judges who were not yet appointed, which was Judge (Tembile) Skweyiya, and maybe it was Judge van der (Johann) Westhuizen, I can’t remember the timing. So then I felt a bit better, because then it was really effectively four interviews. So then…ja, we went to the old building, I interviewed with both judges, (Yvonne) Mokgoro and (Kate) O’Regan, the interviews went really well, and then I was selected by Judge (Kate) Mokgoro, I can’t remember the time periods but about two or three weeks later I got notified.

Int And when you say old building, the Braampark?

AF Braampark, ja.

Int What was your interview like?

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AF Both of them were good actually, I recall. I recall Judge (Yvonne) Mokgoro, she was who she is, which is a very, very friendly and warm person. So she put me at ease straight away. Didn’t ask me particularly difficult questions, it really seemed like a case of trying to get to know me and just developing a rapport. I felt as though we did, I felt as though it was a very warm and friendly interview. Judge (Kate) O’Regan is slightly more intimidating but was also very friendly to me. And I also don’t recall her directly asking me substantive questions in the sense of testing me or anything. Like what is your view on this area or anything, but somehow it went in that direction. I seem to recall in Judge (Kate) O’Regan’s case, I ended up having a quite long discussion with her about section 39(2) of the Constitution for some reason. And in Judge…oh, not for some reason but because actually she’d written a judgment that I was very interested in on that topic, and I think I brought it in somehow. In Judge (Yvonne) Mokgoro’s case, I think we spoke about affirmative action quite a lot, but it wasn’t that they were sort of testing me. I didn’t feel that way. They just…it was a conversation, it was really was a warm conversation. And ja…and so it was…I enjoyed both of those interviews actually, I didn’t…I would have imagined getting to know Arthur (Chaskalson), as I now know him, I would have probably been very intimidated in an interview with him. And other stories leaked out about some of the judges and how their interviews were, and how they were…you know, Judge (Pius) Langa, for example, apparently a lot of people sweated through that interview. Now knowing him better, I realise that it’s probably because he’s got such a dry manner about him, and he probably was enjoying actually to an extent putting people in the hot seat. Because he’s got such a fantastic sense of humour. But at the time, you know, you’re a young student, I’m sure a lot of people were troubled by that. But not Judges (Kate) O’Regan and (Yvonne) Mokgoro, it was very relaxed.

Int And so you started in 2004?

AF Yes.

Int I wondered whether you could talk about your experience of clerking for Judge (Yvonne) Mokgoro and at what point you decided to move to Justice (Arthur) Chaskalson’s chambers?

AF Sure. Well, clerking for Judge (Yvonne) Mokgoro was fantastic. She really was a…such a warm down-to-earth person. She just treated us almost as equal. Well, in fact, as equals. If we weren’t…if we didn’t behave as equals it’s because of barriers we set up, not because of barriers she set up. For example, she encouraged us to call her by her first name. I never got into that habit actually, I felt as though it was…I just didn’t feel comfortable calling her by her first name, but she, at the very first meeting, was encouraging us to do that. At a substantive level she really made us feel as though she valued us completely. She just…my colleague was someone called Emma Lecheko, but

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then we had a clerk from overseas with us for a while, called Chris Rassi. But she just made us all feel completely like as though she really needed our help, she really relied on us heavily, she really benefitted from our memos and that kind of thing, so it was really…it really made me feel…it made me really feel valued. I’m now, five years later, and having been in practice for a while, realise how inexperienced we really were. I mean, I would love to in a way, be a clerk now with more experience as a practitioner. Because I’m sure we could have been much more effective with much more experience. So…but she made me feel, at the time, as though I was really valued and was adding value to her time as a judge.

Int I also wondered, Adrian, in terms of coming to work at the Constitutional Court and clerking, you’d obviously moved into a new building, and there may have been lots of difficulties with operating in a new building that wasn’t complete. Did you experience that?

AF Well, ja…we were very much part of that, it was in fact a…it was a defining feature really of our year…of 2004, because, you know, first there was the move itself, and that’s obviously huge, to try and move an entire building into another building like this. We had to help pack up our judges, move the boxes over, all of that kind of stuff, so that was a huge thing. Then moving into the building, I mean, when you say a building that was incomplete, it really was incomplete when we moved in. I remember, we wanted to…there was a lot of chaos at the very beginning, and we were most concerned with just getting our chambers up and running and just getting back to work, because obviously that was what we were there for, and I personally hate administrative tasks, and moving, and all of that kind of thing. It really was traumatic. So I just wanted to get it over with and…but, you know, there were hundreds of people to move and there was lots of infrastructure to move, etc. So for example, if we had waited for our computers and stuff to be moved, we may have waited a week, so a couple of us decided we’re going to take our computers in our car and just drive over and set them up ourselves. We drove over in my car and the parking lot was incomplete. So we drove into what is now the basement parking, and it was still being built, actually. I remember actually driving over semi-rubble. In fact, I shouldn’t have even taken my car in there, and it was dusty and it was muddy. So we went through all of that, but…there were difficulties, there was a lot of teething that had to happen. Some of the judges took it in their stride, others were stressed out by it. But, then we had the inauguration of the building and that was a fantastic huge event. And soon people started…once all of the small things and the dust diminished and the water started working, and all of that, people started really loving the building and really being much happier here. But it did take a lot of time. There were really a lot of teething problems and really a lot of…it really was a case of weeks with dust, days without water, days without computer network, things like that. There was a period like that. It seems short now, but I mean, at the time obviously it was significant.

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Int In terms of your experience of being in a Court where there are eleven judges, some very prominent counsel, what are your memories of those initial months?

AF Ja, I mean, you had an almost sense of…I had a sense of a…it was really like a dream come true in that sense because you suddenly have access to people that you’ve never come close…you know, it’s for the first in my life I really was interacting with people who I consider to be of high importance, of high talent, and that kind of thing. So it really was a sense of absolute passion for that, and just a sense of such, I suppose gratitude really to be in that position. I really did feel that. I was at the time, and I still am, a massive fan of the TV series, the West Wing, which focuses on the American executive, on the presidency. And that made it worse in a way, because it made you feel like in a small way like a similar sort of thing, you know, you come and see a Constitutional Court judge every day, in my second year a Chief Justice, you have access to all of these people. It really was a sort of feeling of awe, I suppose, in a way really. Now that I look back on it I almost feel as though it’s a bit exaggerated in a way, because it feels more…now that I interact with certainly the counsel so much I feel as though you shouldn’t have taken it so seriously at the time, but at the time I did. At the time I definitely did and I just felt lucky and just honoured and it was really a fantastic sense of honour really.

Int How was your chamber perceived amongst the other law clerks, and what was the dynamic within the group, given that it changes every year?

AF Ja, I think…well, we had a group…so we all most of us started together, I mean, of course it lags a bit because some of the people like Anshal (Bodasing) , who’s now my wife, started six months before me, but clerked at the same time as me. So there was some of an overlap, but a lot of the people who became my good friends started at the same time as me. The interaction was very, very friendly. There is a perception…I mean, there is always amongst clerks, an awareness…there will be judges that are perceived as…how to put it…some judges have a bigger reputation than others, let’s put it that way. And everyone studied law obviously, and no one would be there without some sort of passion for constitutional law, and so there will be some judges who are held in higher esteem than others by the clerks, if not from a respect point of view, just from a talent point of view. There will be so and so is known as an intellectual giant, etc. So that does play itself out to an extent amongst the clerks. So it’s difficult to describe how it plays itself out but there’s effectively an undercurrent that some people are in chambers of judges who are more serious, or perceived more seriously than others. But on an individual level, there was a great friendship across chambers. Obviously, in any organisation, there are people that you gravitate towards, and then there are people who annoy you, or you wouldn’t necessarily be friends with normally. So I wouldn’t suggest that each and every clerk was friends with

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each and every clerk. But I developed great cross-chambers relationships, and very close friendships, which are friendships to this day. And of course my wife is someone who I met here. So, there was space for very close relationships to be formed between chambers. And a lot of open discussion between chambers. Obviously, some people wanted to be very secretive about what went on in their internal discussions with their judges, and obviously that probably would have been the correct starting point for everyone. But if you develop close friendships with people in other chambers, they would often be very frank with you about what their judges were discussing, and you would be frank with them about what your judge was discussing.

Int So there was no confidentiality agreement?

AF There was a confidentiality agreement certainly in respect of the outside world, but…and there may have…I’m embarrassed to say I can’t exactly remember…there may…there certainly would have been…I don’t think there was an explicit confidentiality agreement within…between chambers. But I think we would have had a talk with our judge very close to the beginning just about being discrete. But I certainly don’t remember…I mean, I know I’ve read a lot about the American system, and there different chambers are different, but some judges there are very secretive and others are very open. But I don’t recall any person in a position of authority, either a judge or an administrator, ever saying to me, don’t talk to other chambers about what goes on in your chambers. I do explicitly remember discussions about don’t talk to journalists and the outside world about things which are confidential. That I remember. And that was…everyone was very clear about that. There may have been individuals who secretly leaked things, I don’t know of any though. I know that we took it very…the people I was friendly with were very, very keen to just be very discrete vis-à-vis the outside world. But within the Court there was really…I always felt our Court compared to perhaps the American court and other courts at the time, there wasn’t the sense of there being ideological blocks of judges, that you know, these judges being conservative, these judges being liberal, and that kind of thing, and therefore there being a sort of political tension between them. There really was a feeling that we were all…all the chambers were in it together, and therefore there was no real reason to tell clerks, don’t talk to the other clerks, because why? There wouldn’t be a reason to, you know, there wouldn’t be any political traction you would gain from being secretive or…

Int I’m also curious, at some point you stayed longer than normal; you said two years, and you also clerked for Justice (Arthur) Chaskalson. How did that come about?

AF Well, what happened really was that…so ja, as you say, the normal period…well, the normal period is a year, and I wanted to study overseas the

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following year, and there the term only starts in August/September, depending on where you’re studying. So I could see that there was going to be at least six months of time where I was going to be free, and I did actually ultimately also…I had lectured at Wits part-time while I worked for Judge (Yvonne) Mokgoro, and so I could have probably tried to do that again. But I really had always, since first year of university, wanted to clerk for Judge (Arthur) Chaskalson. Just because of some of his judgments that he wrote, and just, you know, for a range of reasons, and of course being Chief Justice, I knew from…I had a very close friend, still is a close friend of mine, who clerked for him while I was clerking for Judge (Yvonne) Mokgoro. And I came to realise that there were added responsibilities for the clerks who clerked for the Chief Justice, that seemed enjoyable and it just seemed like a great position to hold. So I really had two options, I could have asked Judge (Yvonne) Mokgoro to stay on in her chambers, which does happen from time to time, and in fact, my wife stayed on in Judge (Albie) Sachs' chambers for a long time after the one year. Or I could ask to move. And I just thought, let me be open and up front with her about it and see if there was a possibility. There’s obviously always going to be a sensitivity about that because you don’t want to be perceived as saying to the judge, who you developed such a close working relationship with, I want to go and move to another judge, and it makes it seem as though you’re not happy, or you don’t have the sufficient respect or whatever for that judge. But I kind of felt as though if I did it in the right way, Judge (Yvonne) Mokgoro is such an open, warm person, I could have a frank conversation with her about it and see. Of course there’s always the prospect that she was just totally magnanimous about it and that there was an extent to which she was hurt by it, but if that’s true she certainly didn’t convey that sense. She seemed to understand fully why I wanted to do it, and in fact was entirely supportive of it. Certainly to me. You never know what happens. I don’t know if she spoke to some colleagues and thought…took a bit of…was taken aback by it, but nobody ever conveyed that to me. From my close friend who clerked with Judge (Arthur) Chaskalson, while I was with (Yvonne) Mokgoro, I knew that he might need a clerk in the beginning of 2005. And there was always a feeling that because of our country’s history, most judges were reluctant to have two white clerks at any given time. It was never as explicit as that but that’s how it tended to be, and certainly Judge (Arthur) Chaskalson was someone like that, he wanted to promote previously disadvantaged people as much as possible. And certainly I…so I knew that much would depend on who would be clerking for him at that time, and it turned out that because he took long leave for six months in 2004, he hadn’t…at the beginning of 2004 when I was clerking for Judge (Yvonne) Mokgoro, he hadn’t made plans yet for 2005. And so I just saw a gap, I approached him, I approached Judge (Yvonne) Mokgoro, he then approached Judge (Yvonne) Mokgoro, and so it just sort of panned out that it was fine, it worked well.

Int And what was the difference in terms of additional duty for a Chief Justice?

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AF There wasn’t much actually other…well, there was, on days of hearings it was the most obvious example, because you would have to go downstairs and take counsel from the Court and bring them to meet the Chief Justice, which he does before every hearing. And so that was the main one. There was also a sheet, which was circulated to all chambers on the day of each hearing, basically with the heading of the case, the name of counsel, just for everyone’s information. You would have to draw that up. And, so those were the two really obvious ones. But then there were a lot of other ones which just came from the fact that he was the sort of head of the administration of the Court, so you…you know, so he had that role amongst the judges so the Chief Justice’s clerk had that role to an extent amongst the clerks. Just a co- ordinating role really. When judgments had to be handed down, you’re liaising with the judge’s chambers who wrote the judgment to make sure…you know, to keep things on track, that sort of thing. It just sort of happened as opposed to on day one, him sitting you down and saying, well, you must do this, this, this and this. It more just happened by the position that you were in.

Int In terms of the key judgments that had a profound effect on you during the time that you clerked for both Justice (Yvonne) Mokgoro and Justice (Arthur) Chaskalson, I wondered whether you could talk about a few of the key judgements?

AF Well, for Judge (Yvonne) Mokgoro, the one that stands out for me is the Jaftha (Jaftha v Schoeman and Others) decision, because she was the author of the decision, we worked very heavily on that judgment, so that’s one reason. But also at the time I was aware that it was changing the law quite a lot because it was to do with the eviction of people from their homes and it recognised their negative right to housing, which means a right not to be arbitrarily…well, not to be deprived of existing access to housing without good reason, basically. And it changed the way people are evicted when they can’t pay their debts within the jurisdiction of the magistrates’ Court in quite a big way. So at the time I was to an extent aware of its importance, but then when I went to the Legal Resources Centre and practised in that field I became aware of how important it actually was. And then as far as Judge (Arthur) Chaskalson is concerned, there were two massive judgments that we worked on while he was here and while I was with him, and the one was the Basson (S v Basson) judgment which was about Wouter Basson S v Basson), the State tried to prosecute for war crimes, for crimes against humanity and for domestic crimes, for his role as a chemical weapons person during apartheid. And that was huge, just because of the volume of the case. The record was very big, there was a lot of reading, a lot of time was devoted to it in Court. But also the political status of the case, you know, it was a very high profile case for that reason. So that was one. And then the other one was the New Clicks (Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others) judgment, which for similar reason was very big, huge record, lots of volume, the judgment itself ended up being about six hundred paragraphs, so it was very, very lengthy and a lot of work. But also at the time, I think in

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history, I think maybe in thirty years time, the Basson (S v Basson) judgment would have a much higher profile than the Clicks (Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others)one, but at the time the Clicks (Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others) judgment was very high profile, there was a lot of media interest, it was just very, you know, the talking point at the time. And also I always remember that judgment because Judge (Arthur) Chaskalson wrote a very important, in my view, judgment in that judgment.

Int Which one?

AF About whether making of regulations constitutes administrative action (Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others). And again, that’s why I say, in thirty years time I don’t know if it will necessarily be something which is remembered as much as the Basson (S v Basson) judgment, but for people who are interested in administrative law it was a very important one, and lots of judges took different positions in that judgment about that issue. It wasn’t a unanimous…that issue wasn’t finally and unanimously resolved by the Court in that judgment. But his judgment I will always see, in a way, as almost a sort of swansong judgment of his. It was the last massive judgment he wrote before he retired, and he never expressed it like this, and he would probably disagree with this interpretation of it if I put it to him, but I saw it as him sort of taking the opportunity to say something very important about administrative law, which was part of his legacy in a way almost. So I’ll always remember it for that reason.

Int And I’m also wondering, you also clerked for Justice (Arthur) Chaskalson, as he was ending his tenure as Chief Justice, I wondered on reflection whether that was a very sad time, or was it a time where it was a sort of sense that there was going to be this new Chief Justice, and time of rejuvenation as such?

AF Well, for me as an individual and my co clerk it was a very sad time because we obviously, you develop a massive respect for the judges you work with and obviously you didn’t even have to work with him to have this massive respect for him. I mean, he really is a giant in the world of constitutionalism, not just in this country. So I was personally very sad. We had some interesting and quite frank discussions, surprisingly frank discussions with him about it, because he called us in to talk to us about it, obviously as a courtesy to tell us because certainly for my colleague, she was supposed to be there the whole year so it was going to have implications for her from an employment point of view. But, we obviously were very disappointed about it at first, and he sort of almost talked us through the decision and made us feel better about it. I can’t speak for other chambers. I came to terms with the decision, especially because of the importance of Judge (Pius) Langa becoming Chief Justice, which was a passion of Judge (Arthur) Chaskalson, so it rubbed off on us. Now, in

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retrospect, I have such great affection and respect for Judge (Pius) Langa, that any sadness that I had at the time, I certainly now wouldn’t be sad about it because it was fantastic that he became the Chief Justice. But other chambers may have felt differently about it. To me the predominant feeling was a little bit of sadness about how it was going to be the end of an era. But once Judge (Pius) Langa came in, there was, for a while, a sort of sense of rejuvenation in an extent, but I then left, so I didn’t really experience that that much.

Int There’s been a sense that the eleven judges had such a sense of collegiality and respect amongst them, and I wondered whether you sensed that from early on?

AF Yes. Yes, I think that would be right. You sometimes pick up…you know, I can imagine, any group like that, who have been together for a long period of time, and who are working so closely on such important issues, I’m sure there’s tensions from time to time. I certainly…and you know, you do pick those up, but I think also clerks have the tendency to read more into some things and be…you know, you’re at an age and in a station where it just lends itself to gossip and speculation and that sort of thing. So what I’m saying is, if there were small tensions the clerks would have the tendency possibly in private discussions to overstate them rather than understate them, I would have thought. And other than that, I certainly got that sense…I got the sense that there was massive respect. You could tell that some judges were closer to each…you know, as in any group, friendships appeared to form amongst some. For example, our next-door neighbour was Judge (Kate) O’Regan when I clerked for Judge (Yvonne) Mokgoro, and I could see that they were close to each other. When I clerked for Judge (Arthur) Chaskalson, I could see that he was close to Judge (Sandile) Ngcobo. He used to come here from time to time, they used to visit each other, and was very close with Judge (Pius) Langa. So…but, there was a great sense of collegiality and you could sense that and you could pick it up.

Int Adrian, when Justice (Arthur) Chaskalson was about to leave, as I understand it you organised a farewell.

AF Yes.

Int I wondered whether you could talk about that, and your memories of that event?

AF Ja, that was a fantastic event. What I did was, me and my co clerk, we basically invited…what we wanted to do was have just an afternoon tea, in the Court, at what’s now the…it was either in the judges’ tea room itself or in the public part of that section down there, with all current and former clerks of his,

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and Dorothy (Fouche) his secretary, and that’s it. And most of them came, I mean, obviously some of them were clerks from the overseas programme, so they were back overseas, so they couldn’t come. And of course some of the South African clerks were either out in different parts of the country or overseas themselves. But we had a great turnout, and what the idea was, was that each one of them would write a small note, and we made a little booklet of it, just with photos and then interspersed with little tributes to him from the clerks. It was…I won’t say…I mean, it was semi-professionally put together. There was a printer down the road who did it for us. I wouldn’t say it was a magnificent piece of desktop publishing, but it was neat and it was nicely bound and even those clerks who weren’t going to attend the tea wrote little tributes and emailed them to us, or sent them as attachments to emails. So we managed to put together a booklet, which had almost all of his former clerks reflected in it, with little notes to him. And then a tea with fifty, sixty percent of his former clerks attending. And a lot of the more senior ones who were practitioners contributed with a bit of money just for the…it wasn’t an expensive event, but just for tea and that kind of thing. And they came, and we all had tea together, and a couple of them said a few words as tributes to him, and then he said a few words just off the cuff, just to say thank you, and his thoughts on retiring. And that was it. And it was enjoyable, I thought.

Int Great, sounds wonderful.

AF I’m not sure if he enjoyed it, but he seemed to, he seemed to…

Int Where did your legal trajectory take you after that year, 2005?

AF After that year I went to…straight after leaving here…we had a bit of time after…he retired officially on the 31st of May, but he stayed trying to finish his work, so I stayed with him until the end of July, and then I went straight to New York and I went to do a Masters at New York University. That took me to the middle of 2006, and I then came back and lectured at Wits for the rest of 2006, for about six months. And I then went to do pupillage at the Johannesburg Bar at 2007. And then after pupillage I went to straight to work at the Legal Resources Centre. They have a system there…you know, normally in our system, advocates have to be totally independent and practise out of chambers with other advocates and not be associated with law firms at all, but because the Legal Resources Centre and some other organisations similar to it, do public interest and human rights work, there’s an arrangement with the Bar Council that you can work for them as in-house counsel, either full-time or part-time, and practise as an advocate, but as an employee of that organisation, which would normally be prohibited. And in fact Arthur (Chaskalson), started that. When he formed the Legal Resources Centre, he negotiated that arrangement basically with the Bar Council. So, I did it on a part-time basis. I didn’t take chambers so I sat…my office was in the Legal Resources Centre, but in terms of my agreement with them I was allowed to

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take a certain amount of private work, just as a normal advocate in private practise, but the vast majority of my work was for them, and then it’s the same as a normal advocate except you take your instructions from colleagues who work at the LRC (Legal Resources Centre). And I worked there with that arrangement for two years and then I left and went just entirely into private practice, and that’s where I am still.

Int I was curious, you had mentioned earlier in your interview that you had decided to go to the Legal Resources Centre and it was influenced by your time here; I wondered what the impetus was for that decision?

AF I think that, obviously here at the Court, all one is focusing on is constitutional issues, and that was obviously, at that stage certainly, the almost exclusive passion of mine. So then when I went…after the Court, even when I went to NYU (New York University), the focus of my degree was on constitutional subjects, and it’s remained a passion. And then when I was coming towards the end of my pupillage, I started thinking about my practice, and I wondered whether I would ever be able to have as much exposure to constitutional law as I would at the Court, and I started thinking that working for an organisation like the Legal Resources Centre would be a very good way of keeping access…you know keeping up with…you know keeping exposure to constitutional law. You know, in the normal progression of an advocate one takes a long time to acquire a practice…you know, seniority is very important in the field of advocacy, so it takes a long time to develop a practice along the lines of one would necessarily want. And even then you don’t necessarily have control over it. You can start out saying, I want to do constitutional law, and all the work that comes your way is some other area, and then eventually you develop that area as your area of speciality, and then you forget constitutional law. On the other hand, if you work at the Legal Resources Centre it’s unavoidable that you do it. So I thought that there was that way of keeping me in touch with it in that way. And also at that time, I just considered it a double benefit of also doing a lot of human rights work, which was very interesting to me and important to me at the time. So I thought, you know, it’s a win-win situation, you keep up with your constitutional law, you keep involved in cases which are focused on constitutional law which you might otherwise not have exposure to in the private world, and you get to do work that’s of human rights value. Which was just at the time something that interested me and was important to me. I wouldn’t say necessarily…well…not so much from…well, I was going to say not so much from clerking at the Constitutional Court but it was really, because Judge (Yvonne) Mokgoro, particularly, approached her work very much from a perspective of uplifting people’s human rights. I would have thought there’s lots of ways for a judge to approach the job. And certainly Judge (Arthur) Chaskalson didn’t come…Judge (Arthur) Chaskalson always took the line that his…you always got the sense when you were with him that what you were doing was interpreting the Constitution and applying the Constitution, and that was what was important. He didn’t come with a particular ideological agenda, he didn’t

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say, we are here to uplift the poor, or we are here to protect…Judge (Yvonne) Mokgoro on the other hand really did. She said, the Constitution is there to change the past, uplift the poor, protect people, etc. And so that probably rubbed off on me. Maybe not explicitly but you couldn’t help being in her presence, become enthusiastic about that…about doing that.

Int In terms of being at the Constitutional Litigation Unit at the LRC, did you then come before the Court during that period?

AF No. I was mainly involved in cases, which resolved themselves at the High Court level. There was scope to come here as a practitioner in some cases where the LRC (Legal Resources Centre) did amicus interventions. And it was a bit of bugbear of mine that I wasn’t ever instructed to do it and it became a slight issue within the LRC (Legal Resources Centre) about who was being sent for that purpose. But I never did. I have ultimately appeared in this Court twice, but that was after I finished at the LRC (Legal Resources Centre), and…we had one opportunity while I was in my last year at the LRC (Legal Resources Centre), but it didn’t materialise. It was always the biggest regret of mine not to be able to appear before Judges (Kate) O’Regan and (Yvonne) Mokgoro, because for different reasons I really badly wanted to appear before them both, but they both retired before I did unfortunately. Obviously Judge (Arthur) Chaskalson, I was too late for that, I mean, that would have been the ultimate. But that I always realised couldn’t happen. But there was at least a possibility of appearing before Judges (Yvonne) Mokgoro and (Kate) O’Regan, but it just didn’t happen.

Int Adrian, I wondered, the two cases that you appeared before the Court, at what point did this happen, and if you could talk about those cases in particular?

AF Sure. They were both last year, I think…

Int 2010 or 11?

AF Was it eleven or ten…no, it must be 2011…it must have been last year. The one was a case where the Bar Council appointed counsel. The Court, from time to time, it’s much less common these days, but where a lay litigant brings the case themselves, or for some or other reason a person is unrepresented so then they need some sort of representation here. So I was appointed by the Bar Council, mainly because I worked quite closely with Gilbert Marcus at the time, who is one of the top constitutional advocates at the moment, and the Bar Council normally phones Gilbert when they need to know…a recommendation, and that’s how it came to me. In that case…and then the other one…well, let me start with that one. So in that case they appointed me and I took one look at the papers and I realised I can’t possibly do this by

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myself, so what I did was I phoned a colleague of mine who’s in, what’s known as SERI, it’s a Socio-Economic Rights Institute, it’s another NGO like the LRC (Legal Resources Centre). And I said to him…

Int And that’s Stuart Wilson?

AF Stuart Wilson, ja, and I said to Stuart (Wilson), won’t you be the attorney? And he was delighted to do it…well, he’s actually also done what I did, which is pupillage. He used to work basically in the role of an attorney for CALS (Centre for Applied Legal Studies), but he then did pupillage and actually is inside counsel for SERI (Socio-Economic Rights Institute) . But I said to him, can’t SERI (Socio-Economic Rights Institute) be the attorneys? He effectively became my junior then because we said well then we’ll just work on it as counsel together. But I mean, not my junior, I mean, we were co-counsel really. But they were fantastic and then SERI (Socio-Economic Rights Institute) acted as the attorneys, and then we fixed the papers up and then came and argued it here.

Int And it was a socio-economic rights case (Betlane v Shelly Court)?

AF Yes (Betlane v Shelly Court), it was really about a man who was evicted from his house but then had a whole series of orders, which were taken against him, which were made against him in the High Court, which effectively stopped him from proceeding…from approaching the High Court again without permission. So it was really about access to justice in the end. The eviction was a bit of a side issue. The main issue was, was it proper for the High Court to stop him from…did the High Court have the power to stop him from coming back? To a large extent the issues were settled almost by the time we got to Court. So it wasn’t a major case by any stretch of the imagination. It started being a quite important case in my view, but by the time we came to Court it wasn’t so much. But the Court ordered that and found that…made some findings, which were beneficial to the public interest sector, so in that sense it was of some value, I suppose. Then the other case (S v The State) was a criminal law case, which was a normal…it came to me as an instruction in the ordinary course. It was about a lady who was convicted of fraud, but who had two very young children. So our case was that she shouldn’t have been sentenced to prison because it would affect the rights of the children. And there’s another decision of the Constitutional Court, which was handed down about two years ago…no, two years before we went there, which recognised that principle, basically said…I’m very much simplifying it here, but depending on the facts of the case it may well be inappropriate to order a mother of vulnerable children to prison. So were trying to dovetail on that case and argue that our circumstances were the same and the same principles should be applied. We were unsuccessful though. But ja, so that was that one. And that was also, I think, argued last year or it may have been the year before. Time is becoming…

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Int What is the principle of the dissent in that particular judgment?

AF In that judgment (S v The State)…well, we lost, I think it was 9/1, I think Judge Khampepe was for us, and Judge Cameron who wrote the judgement for the rest of the judges, was against us. We lost because, obviously the Court accepted the principles of the original judgment, but Judge (Edwin) Cameron found that on the facts of this case there were distinguishing features, most notably that unlike in the previous case, in this case there was a father who could take care of the children. Our case had always been, there is a father but he’s not capable of taking care of the children. Judge (Edwin) Cameron found on the record that there was nothing to suggest he couldn’t look after them. So really in my opinion, effectively, and I’m really simplifying it, but it boiled down to the fact that there would be a primary caregiver on the scene for these children, whereas in the other case there really would have been no- one, it was going to be a case of foster care or going into an orphanage or something like that.

Int I’m also wondering, in terms of the arguments made by SERI (Socio- Economic Right Institute), when I say SERI, I mean Stuart Wilson and Jackie Dugard, that the Constitutional Court hasn’t quite effectively dealt with socio- economic rights and hasn’t satisfied those, what’s your sense of that argument?

AF Well, my sense is that it’s wrong. You know, I have a pretty good relationship with Jackie Dugard and Stuart (Wilson), so I wouldn’t want to name names…you know, focus on them as individuals…

Int No, no, in terms of them, as authors of published works…

AF …I’m qualifying what I’m going to say which is that, there is a tendency with respect to those people and others, of academics, to be overly critical of the Court, and more importantly not to appreciate what the Court is. And what I mean by that is, a lot of academics are insufficiently…don’t take sufficient account of the fact that the Court is confined by the record that’s presented to it and the arguments that are advanced to it. It’s not a super body that is at large to cure all the problems of society as and when it takes a liking to a particular issue. It’s not its role and it’s effectively an appellate court and so it would be improper for it…obviously there are exceptions but it would be improper for it to go on its own frolic whenever it suited it. So…and my problem is, or my concern is that academics often will read a judgment of the Court, you know, the four corners of the judgment and that’s it. They won’t read the record, they won’t pay attention to what was argued before the Court or anything like that, they’ll just read the reasoning of the judgment, and they will then take a position of policy and criticise the Court as being inconsistent

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with that position of policy. And the problem is that they may take insufficient account of what the Court had before it, and the Court…certainly I got the sense very strongly with Judge (Arthur) Chaskalson, and then of course I left after he left, so I can’t speak for the other Chief Justices, but I would certainly, having known Judge (Pius) Langa and Judge (Sandile) Ngcobo to an extent, would think that they would be exactly the same. Had the attitude that the Court must decide the cases presented to it and what the record accommodates is what the Court can decide, and so I think it’s not the Court’s function to do that. It’s the Court’s function to apply the Constitution properly, and of course there are provisions in the Constitution that are supposed to be pro poor, I mean, they were written for that purpose, but it’s only for the Court to apply them to the facts of a particular case. And normally criticism such as those of Jackie Dugard’s are really criticisms that amount to going a lot broader than what a record would accommodate, in my opinion, and really they amount to saying, well, let’s take the most liberal possible interpretation of a particular provision of the Constitution and if the Court doesn’t give effect to that interpretation on the facts of a particular case, then the Court is wrong. But of course that’s the wrong way of approaching it. The Court, what it has to do is say, well, what does the record say, what has been pleaded, what has been argued in the lower courts, what is the issue before us, what does this case raise or doesn’t it raise, and then apply the provision accordingly. And if you do it that way, sometimes you won’t come out with outcomes, which are expansive from a policy point of view. But that’s not really the Court’s job. That’s the legislature or the executive’s job. So…you know, I’m speaking at a level of generality here, because I’m not…you know, one would need to of course go through each criticism and meet it issue by issue, and if Jackie Dugard, for example, or any of those other critics were listening to me now they would say, I’m being much too general to meet specific criticisms of theirs. But I think to approach it as a whole that would be my general concern with a lot of the criticisms directed at the Court. In this country, in fairness, unlike for example in the States, where academia is…I mean, there’s a lot of reasons why this is so, so I don’t want to be simplistic about it, but in their country I get the sense that academia is taken extremely seriously and there’s a big overlap between academia and the profession, and practice. Here, there does often seem to be a big divide. There’s academics who stick to academia, and there’s practitioners who stick to a large extent to practice. And I often feel that the academics don’t understand the nuances of practice sufficiently, and then make criticisms, which are divorced from the practical reality of practice.

Int Right. Fair enough. I’m curious about non-legal considerations and how those come into play, particularly in a country like South Africa where one can’t really ignore the social conditions. So how do you then grapple with that issue?

AF Well, I think that…you’re right, you can’t ever escape it. And so...and also I’m not…you know, some judges and some people really take the line that all we

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do in every case is apply the strict letter of the law and come with an outcome and that’s all our task is as judges, for example. I, as an observer of some of the judges for a short period of time, I don’t believe that that’s true, and I do accept that realism comes into everything, and humanity comes into everything, and your own ideological outlook comes into everything. So I don’t think it’s possible for people in this context to switch that stuff off. I also think it depends on the individual. I think some judges are probably more conscientised and are more…take those issues…are more ideological than others, possibly. But all the judges I encountered have a long history of being very involved in the socio-economic and social justice problems of this country, and so it couldn’t but have affected them. So it really does form a part of who they are, I think. But I think some judges are…some judges have a more clinical approach than others. Some judges would go with the overt purpose of trying to do as much justice in a particular case as possible, and then they would be almost unashamedly influenced by those factors. And then other judges would probably have those factors in the background as part of their personality and psyche, etc, but at front and centre in their mind they would probably be trying simply to be as cold and calculated about it as possible. Look at the record, look at the provision, and try and apply it.

Int In terms of the independence of the judiciary, do you have concerns about the independence of the judiciary in this country?

AF Well…I think that the judiciary itself is still very independent. I think it certainly was up until the end of Judge (Pius) Langa and Judge (Sandile) Ngcobo’s times as Chief Justice it was. And I still think it is. What concerns me though is that there is a greater attempt by the executive to interfere with the judiciary, and there seems to be, as time passes, less of an appreciation of the importance of the separation of powers. You hear more in the public domain things about, well why should judges do this and why should judges do that, why should the democratically elected will of the people be interfered with? In a way which is slightly worrying given our history. Because you would never have heard those same pronouncements ten years ago, I don’t think. I know you hear it around the world, it’s not unique to South Africa. Even in the US and countries with long histories of constitutionalism, one always hears politicians bemoaning judges going further than they should have gone or whatever it is. But I do worry that…I do have rule of law concerns about the future. They’re just concerns at this point. I don’t think at this moment there is a full frontal attack on the judiciary. There are periods in our recent history where there have been. For example, when around the time when Jacob Zuma’s ascent to the presidency was so controversial, there were some unpalatable things said about the judiciary. And it does come up every now and again when it becomes contentious. At this very moment, right now, one is not left with a sense that there’s a full frontal attack on the judiciary. In two years time there might be if the political circumstances lend themselves to that. But as a general point I worry that there’s not necessarily enough appreciation of the importance of the separation of powers, and as soon as

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you don’t appreciate that then of course the independence of judiciary is threatened because then the branches of government with the real power don’t understand when to back off sufficiently.

Int I’m also curious in terms of fears and concerns you may have for the Constitution and the Constitutional Court?

AF I think they link to what I said, I think it’s the same sort of thing. My additional thing that I could add to what I said is that, there’s a much greater sense, certainly I get, of something which again in fairness happens all around the world, which is that the executive tries to appoint judges who are executive minded. Of course you see that very explicitly in the US where the identity of the president has a huge impact on appointments to the Supreme Court and other courts. But here one does get a large…one does get a feeling that there’s much less focus on the best person for the job and a lot more focus on judges in the mould of the executive. And my worry is future appointments to the Court will fall under that category and the Court could be weakened for that reason. And it’s not just the Constitutional Court; it’s all levels of the judiciary. I think I’m simplifying it to an extent because I sympathise with the Judicial Service Commission to an extent because they are limited when they appoint judges, certainly to the lower courts, to the calibre of people that apply, and they don’t always get the best people applying, certainly in the High Court. But when it comes to the Constitutional Court there have been people already, even in our recent history, who have been passed over who shouldn’t have been, and one does worry that in the future that will continue to happen and that the Executive will interfere with the functioning of the Constitutional Court by appointing judges who are perceived to be sympathetic to them. I have that worry, let’s put it that way.

Int Sure, fair enough. In terms of transition to democracy and the role of the Constitutional Court, what do you think are the challenges that remain?

AF Well, I think there are…I think…a lot has been written by some quite astute people about the very careful role that the Court carved out for itself in the early days. Because it’s obviously…it was such a new notion that the Court could set aside what the legislature and the executive had decided. The Court could have gone overboard, for example. It could have become the Court that perhaps people that you mentioned before, those academics would have liked it to have become, which is basically to make wide reaching decisions all the time, but it would have run the risk of undercutting itself, of losing its own currency, basically, by being too activist. And so it carved out under Judge (Arthur) Chaskalson and Judge (Pius) Langa, and Judge (Sandile) Ngcobo carried on with that, a very good role for itself, a very balanced role for itself. This is something I don’t think Judge Chaskalson, for example, would accept as an explicit agenda. I don’t think he would say, yes, that’s what we set out to do. But I think that is what they did do. And I don’t know if he necessarily sat

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in a room somewhere thinking, well, how do I best achieve this? But it certainly was what was achieved. And I think it’s as much of a challenge now because you asked me…it links to your question about the separation of powers really. I mean, there’s a lot of socio-economic challenges that remain unaddressed by the executive and the legislature, and the longer those remain unaddressed, the more risk…risk is the wrong word, the more…the potential there is for them to come before this Court, before the Constitutional Court. And when that happens, especially in a climate where there’s already hostility to the judiciary, it’s a big challenge for the Court to make sure that it doesn’t become…you don’t want a situation where the Court is so activist that it’s disregarded. It could, if it’s not sensitive enough to its political place, it could trigger an all-out confrontation with the executive and the legislature by being too activist. So it’s a very important time for the Court. On the one hand it has to protect the Constitution above all else, and it can’t start suddenly changing interpretation of the Constitution not to offend the executive and the legislature. But on the other hand, the more socio-economic conditions are not improved, the more it’s going to be challenged by the public to make decisions which the executive and the legislature don’t like. So it’s a difficult role for it…or it’s a difficult river to navigate through really for it, I think.

Int Adrian, thank you for that. If you had to reflect on your time at the Constitutional Court, where would you place it in terms of lessons learnt and in terms of productivity?

AF I think…it’s always difficult to tell because you can only judge the productivity by the…you know, you only have the insight that you do about the productivity at the time that you’re there. I have always had a feeling that the first four years after 1994…five years, the Mandela presidency, were really a sort of golden era of the country’s history. I mean, it’s really a sort of five year period where the country was in the best place I think it’s ever been. And I think the Court was no different. I think it was the sort of pinnacle of the Chaskalson Court; it was, looking backwards, a time when the Court was at its strongest. So I as an individual, and it’s a controversial comment, a lot of people would disagree and it’s offensive in a way to a lot of people, but I sort of feel as though the Court was at its pinnacle at that time, as the country was, and as time has passed, with the retirement of some judges, the replacement of them by others, as time has passed, the Court is maybe not quite at that zenith, let’s put it that way. If that is true, and it’s of course a controversial thing to say, but if that is true, then I was sort of, as it was beginning to wane, I was lucky enough to be there when it was still populated by some of the giants of our constitutional history. It was not populated by all of the. Some of the ones like Judge (Johann) Kriegler, Judge (John) Didcott, people like that had retired already or had passed away, but I was still lucky enough to be there when Judge (Arthur) Chaskalson was there, Judge (Kate) O’Regan was there, and Judge (Sandile) Ngcobo was there. And so it’s…I would see myself as being there at a time when it was on the wane but it was still a very productive time.

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Int You’ve pre-empted many of my questions, I’m wondering whether I’ve neglected to ask you something that you feel ought to be included in your oral history?

AF Nothing that really springs to mind. I can’t think of anything else…I can’t think of anything else.

Int Adrian, thank you so much.

AF Thank you.

23 Collection Number: AG3368

CONSTITUTIONAL COURT TRUST ORAL HISTORY PROJECT

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