1 Gilbert Marcus Constitutional Court Oral History Project 20Th December

Gilbert Marcus Constitutional Court Oral History Project 20th December 2011

Int This is an interview with Advocate Gilbert Marcus and it’s the 20th of December 2011. Gilbert, thank you so much for agreeing to participate in the Constitutional Court Oral History Project, we really appreciate it.

GM It’s a pleasure.

Int I’ve had the pleasure of interviewing you before for the Legal Resources Centre Project and during that interview we didn’t really get an extensive biography, and I wondered whether we could actually start at the very beginning today and talk a bit about your background in terms of what it was like growing up in South Africa during apartheid, and where your social and political conscientisation arose?

GM Well, I’m born and bred in South Africa. I’ve lived here all my life apart from one year when I studied in England. But I came from a political family, for want of a better description. Political in this sense: my mother was a refugee from the Nazis. In 1939 she fled from Czechoslovakia to escape Nazi persecution. Her immediate family were lucky enough to escape but many of her family were killed in the concentration camps. And my father was a World War Two veteran; he spent six years in the South African army, but also fighting Germany and the Nazi regime. So with both parents coming from backgrounds like that, I had an upbringing, which was at least acutely conscious of human rights issues, and I think that that certainly had a fairly profound influence on my life and my thinking. So I was brought up in a household in which respect for other people, tolerance of difference, tolerance of free expression and the like were really watch words of the way I was brought up. I then went to university, the University of the Witwatersrand, at a very turbulent time in our history. I was there from 1974 to 1979. During that period, of course, there was the Soweto Uprising, there was the invasion of the South Africa Defence Force into Angola, and I was involved in student politics, and that too sharpened my awareness of what was going on in South Africa. And then in 1980/81 I spent a year in England studying, and that distance I think really made it absolutely clear to me that I didn’t want to pursue a career in corporate law. I wanted to do something that was possible at that time in relation to human rights. And while I was at Cambridge I contacted John Dugard to talk to him about the possibility of joining the Centre for Applied Legal Studies when I’d finished studying. And that was set up. I came back, I finished my articles of clerkship, I did my pupillage with Denis Kuny, and then I went to the Centre for Applied Legal Studies for eight years until 1991.

Int Gilbert, I want to take you a little bit back. Growing up in South Africa, in terms of awareness…you’d mentioned your family background, but in terms of personal awareness of racial discrimination, I wondered when your first memories of…when those were?

GM That’s an interesting question. I remember a particular incident at our house. In fact, it was a pass raid. And it was conducted, believe it or not, by a lay preacher in the synagogue. And my father was absolutely incandescent with rage, on two levels. The fact that there was this extraordinary invasion of those working for us, the indignity of having to produce their pass books, and that it was carried out by a man who professed to be religious, and a man of piety and the like. I must have been six or seven at the time, but I remember that very, very clearly. And it was a shocking incident, and I suppose that was part of my awareness. But growing up in that kind of household in which political discussions were a daily occurrence. My father was involved in the formation of the Progressive Party, as it was in 1959, so there were politics going on all the time and I was exposed to it as a young boy. And I suppose by process of osmosis, more than anything else, my awareness grew.

Int Intellectually, in terms of intellectual development, I was wondering what your source of intellectual development, was it particular role models in your family or in school, or were there certain newspapers that you found very enlightening?

GM I suppose intellectually the development of significance probably took place at Wits. Certainly it was, as I suggested, a crucial time in our history, and because of the environment in which the university was operating there was an exposure to a great deal that simply was not generally available. There was an exposure, which I had to banned literature; there was an exposure to writings of people, which were just simply suppressed. The university environment, I should say, facilitated access to things, which were suppressed, and I think that was critical. And also being in a community, if you like, of people who were opposed to apartheid, and had a perspective which was simply not generally known in the country at the time.

Int You were also there involved in student politics through NUSAS (National Union of South African Studies), and I wondered whether you could talk a bit more about that, given that it was such a turbulent time and there were quite a lot of issues between the group by Steve Biko and NUSAS (National Union of South African Students), as well…

GM You’re absolutely right. There were a range of tensions that occurred at that time. There were certainly the tensions around NUSAS, the National Union of South Africa Students, and its attempts to have a voice at the various universities, which was vehemently opposed by right-wing elements, within all

the universities, including Wits as well. So that was one strain. There was a secondary strain, and that was the tension between NUSAS (National Union of South African Students) and the South African Students Organisation, SASO, and the birth of that movement, in which Steve Biko certainly played a critical role. And it was a time of trying to accommodate, if you like, the place of white politics, black politics, how it could be accommodated in a racially divisive society, and the universities were an important crucible for those kinds of debates. They were often difficult debates, they were often uncomfortable debates, but they were on-going debates if the truth be told.

Int I’m also wondering, in terms of the 1980s when you went to Cambridge, and looking at South Africa from afar, it sounds like that’s where your legal trajectory really got formulated?

GM I think that that’s right. I think that the distance from South Africa, and again, the exposure to writings, literature, news, if you like, which was just not available in South Africa, put things, for me at any rate, into a much sharper focus. I suppose when you see what’s going on from a distance and you’re not living within that particular society, things do assume a precision and a sharper focus than they would otherwise have. In South Africa life carries on, what you read in the papers, there was bad stuff that obviously was reported on but it was mixed in with everything else. Life carries on. When you see it from a distance, it’s not the same. And the focus was on the injustices of the apartheid regime. It was a time of the school’s boycotts around Johannesburg, which spread across the country, and, you know, we saw footage of things that people in South Africa were not allowed to see.

Int I’m also wondering about your eight years at CALS (Centre for Applied Legal Studies). CALS at that time was really regarded as being very radical and really kind of going against the tide, as such. I wondered whether you could talk about the mainstream of your work during your time at CALS?

GM Well, at the time that I went, there were really only two possibilities for somebody who wanted to work in public interest law. It was either the Centre for Applied Legal Studies or the Legal Resources Centre. And I certainly toyed with the idea of going to the Legal Resources Centre as well. What attracted me though to the Centre for Applied Legal Studies was that their work spanned really across a range of disciplines. It involved teaching, it involved research, and it involved litigation. I went to CALS as a litigator, that’s why I did my pupillage before I went to CALS because I wanted to be able to litigate in the areas in which CALS was operating. At that stage CALS was focusing on freedom of expression, labour law, and all the laws which affected or implemented racial discrimination, including the Pass Laws, forced removals, and the like. While I was at CALS, I was involved in two campaigns, which I do think serve as credit to the legal profession. They were campaigns against the Group Areas Act, and campaigns against the Pass Laws. And in both

instances we, at CALS, provided at least a rallying point for lawyers to defend every single case. We embarked upon a strategy, I stress, together with a range of other organisations, in relation to the Pass Laws, particularly with the Black Sash, in which we tried to organise legal defence for every single case. The idea being to basically clog up the system, to make it unworkable. And we did. We had a roster of lawyers; we involved people who would otherwise have never had any involvement in that kind of law at all. We produced memoranda, which we circulated to facilitate the kinds of arguments, which were advanced, and we did the same thing with the Group Areas Act in conjunction with an organisation called Actstop. So those were two very important campaigns during the eighties in which I was involved.

Int From 1991 onwards, what did you do? What did you get involved in before you got involved in taking cases before the Court?

GM I left CALS (Centre for Applied Legal Studies) in 1991; the process of transition had begun, it was probably irreversible even in 1991, even though, perhaps looking back one might doubt that, but I felt that I really wanted to pursue my career as an advocate and in order to do that I had to go to the Bar full-time. So that’s what I decided to do. It was during that process, of course, that the negotiations for the drafting of the new Constitution were taking place. I was involved in that process through the Bar in the sense of being on various committees of the Bar and assisting the Bar in making submissions to CODESA around a range of issues that had occurred. I was also involved at that stage, in co-authoring, I think it was the first textbook on constitutional law, together with colleagues like Dennis Davis and Fink Haysom and Halton Cheadle, and Azar Cachalia. And Penuell Maduna, funnily enough, who later became the Minister of Justice. So I was involved in that process as well, and for us it was a dream come true. And it happened very quickly, remarkably quickly. And so I’d always obviously had an interest in human rights law but now there was the prospect of a constitutional basis for it in South Africa, which only a few years prior to that seemed absolutely unthinkable. One has to remind oneself that from 1985 to 1990, South Africa was under permanent Emergency rule; that is a regime akin to martial law. It was probably one of the most repressive - probably the most repressive - time in our history. And within a very short space of time thereafter we had a constitutional democracy. So I still have to remind myself about it. It is unbelievable.

Int I’m also curious, in terms of the submissions, what was your experience of the process of the Constitution making?

GM You know, I wasn’t on any of the technical sub-committees, but certainly we, or I, kept a very sharp interest on what was going on, I knew people who were on those committees. I mean, this was the process of drafting a Constitution for all of us. And as I say, my involvement as such was only at the level of assisting the Bar from time to time in making submissions. But I’d worked very

closely as an advocate with Arthur Chaskalson; he and I had been part of the team in the so-called Delmas Treason Trial. I’d done a bunch of other cases with him. I had worked very closely with Ismail Mahomed who chaired various sessions in CODESA. I had worked very closely with George Bizos. So I knew the dramatis personae and felt that I had a link to what was going on, certainly a very, very keen interest in what was going on.

Int I’m also curious, in terms of the initial selection of the judges, the sitting judges, as well as the ones who were chosen later, what did you think of some of the choices that were made, and the composition?

GM Well, can I answer the question by going back a little?

Int Sure.

GM One of the curious things about our transition to democracy, is that on the 27th of April, 1994, there was effectively a complete change of the legislature, a complete change of the executive. But apart from the Constitutional Court, the entire judiciary remained unchanged. And that was inevitably going to be problematic, because the judiciary was certainly an instrument of apartheid, it had certainly been complicit in the enforcement, sometimes the brutal enforcement of the laws of apartheid, and although there were exceptions, and one has to candidly acknowledgment that there were exceptions, there’s no doubt that the legal system was integral to apartheid. So the problem was this: how does one effect a transition which is going to ensure both legal continuity, but also reverse a legacy of utter distrust in the courts, a legacy of judicial repression? And I think that’s not an unfair description. And the way in which that was done was to create an apex Court, a new Court, the Constitutional Court, which would be the highest Court in constitutional matters, which would be a newly constructed Court, hopefully composed of men and women who had the necessary credibility to restore the lost faith in the legal system. So the creation of a new Court was one mechanism. The equally critical component however was how the members of that Court were going to be chosen. And again, there was a compromise there, it involved four sitting judges, but it also involved a process, which we had never witnessed before. It involved a selection process before a Judicial Service Commission, which was quite unlike the way judicial appointments had previously been made. Previously, if the Minister of Justice liked you, then you got the nod and you either accepted or rejected. It was a closed secret process, which was completely unaccountable, which lacked transparency. This was completely different. It was an open process, there were many, many candidates, and inevitably there was controversy. There’s no doubt about that, but I think ultimately they put together a truly remarkable Court and one can have legitimate debates about who was excluded and whether it would have made a difference. I’m not sure that a great deal today turns on those debates. But it was a formidable Court, there’s no doubt about it. And under the leadership of

Arthur Chaskalson it was, I think, absolutely integral to the transitional process.

Int And there has been some talk about the fact that Ismail Mahomed may have been chosen as President of the Court, and was rather disappointed that he wasn’t, and I wondered whether you were privy to those debates?

GM I can tell you from personal knowledge that Ismail (Mahomed), who was a friend of mine, was bitterly disappointed. He felt that he wanted to be Chief Justice. I think - and I try and choose my words carefully - I think it would be not unfair to say that there was an element of resentment on his part that Arthur (Chaskalson) was the Chief Justice. It was then called the President of the Court, but for the sake of convenience, let’s call it Chief Justice. I think he resented the fact that Arthur (Chaskalson) was chosen. I know he blamed, amongst other people, George Bizos, because of George’s closeness to President (Nelson) Mandela. And it was a very unhappy situation for Ismail (Mahomed), and I suspect for Arthur (Chaskalson) as well. Ismail (Mahomed), of course, went on to become the Head of the Supreme Court of Appeal but he was very unhappy in Bloemfontein. I frequently saw him. I would always of course ask him how things were, and I remember one comment…I mean, Ismail was given to colourful expression, but when I asked him once I remember him very clearly saying, “how would you like to be the Chief Magistrate of Auschwitz?” Now of course that was an overstatement. But he was very unhappy in Bloemfontein and he was very unhappy at not being the head of the Constitutional Court. I know that. I know that from my discussions with him.

Int One of things we are trying to do in the Constitutional Court Oral History Project, is really to get people’s reflections about Ismail Mahomed, given that he’s not with us… And I wondered, given your friendship with him, in terms of his time on the Constitutional Court and his contribution, what you could say about that in particular?

GM Ismail (Mahomed) was an extraordinarily brilliant man. There’s just no doubt about that. Probably on the first Court he was, at the level of sheer knowledge, the strongest public lawyer of a very strong group of public lawyers. He was a brilliant man, he absolutely immersed himself in law and the study of law. He brought to bear a comparative perspective particularly across Commonwealth countries, including Canada, India, Pakistan, which infused really the way in which he acted as a judge. He had this extraordinary command of the law and he worked himself constantly on the law and on research. So he was an incredibly powerful constitutional lawyer on that Court. And as a practitioner that’s what he had been doing for many, many years. He was a mercurial man though. He had a short temper, which sometimes flared up in unpleasant ways. He was an extraordinarily hard taskmaster. I was part of his team in the Pietermaritzburg Treason Trial. I can

attest to his work methods from first-hand knowledge. And so he combined all these elements. It’s difficult for me to comment on what he was like to work with because obviously I wasn’t a member of the Court…to work with, I mean, as a judicial colleague. But I suspect it wasn’t easy. Because he did not change his mind easily. That’s not to suggest that he wasn’t open-minded. But he was difficult, there’s no doubt about that.

Int I’m curious, Gilbert, in terms of the choice of the sitting judges, Judge Didcott, Johann Kriegler, I wondered what you thought about the four sitting judges and the choices of that?

GM Well, I need to remind myself which were the four sitting judges and which were the other two that came on. I think that the sitting judges were Ackermann, Goldstone, Kriegler, and Madala wasn’t it? Or was he part of the…I think Didcott was interviewed. I don’t think Didcott was one of the four.

Int Yes, then it would have been Tholie Madala…

GM Yes. And there was Ismail Mahomed as well. So in fact, I think it was not Ackermann, I think it was (Ismail) Mahomed. So I think it was (Tholie) Madala, (Ismail) Mahomed, (Richard) Goldstone, (Johann) Kriegler. I think those were the four. And I think (John) Didcott and (Laurie)Ackermann, got in via, as it were, the interviewing process. Look all the judges who had been appointed prior to the Constitution, were judges with a human rights record. They were people who quite clearly were committed to the transition to democracy. There were not many of them around, to be perfectly honest. As I said to you earlier, the judiciary was not monolithic, but by and large the moments of light were few. But certainly those four plus the other two, were the ones who stood out. There’s absolutely no doubt about that, particularly, I need to stress, John Didcott. Ismail (Mahomed), of course, was a post 1990 appointment, but John Didcott had fought a lonely, lonely battle. He had been reversed over and over and over again by the Appellate Division, so I single him out. To a lesser extent was Richard Goldstone. Johann Kriegler as well obviously. Laurie Ackermann of course resigned in the eighties. To the best of my knowledge, and I stand to be corrected, but to the best of my knowledge, he never publicly gave the reason for his resignation, which I think is unfortunate, to be honest with you, because if his resignation was due to reasons of conscience, I think that the impact of it would have been much, much more powerful. So the curiosity is he has never, to the best of my knowledge, said that on record. Which means that no judge, during the apartheid era, ever resigned for reasons of conscience, which is an interesting and perhaps alarming statistic.

Int I’m also curious…did you closely observe the Judicial Service Commission interviews? Because some of them apparently were quite bruising encounters.

GM I certainly did pay close attention to the interviews, and it is true that some of them were bruising encounters. I think that one particular example is probably the interview of Albie Sachs. My colleague and friend, Wim Trengove, who was the representative, or one of the two representatives of the Bar on the Judicial Service Commission cross-examined Albie (Sachs), in a very tough manner I don’t suggest unfair at all, but it was a tough interview. But important. I think that that is really what separated the new from the old. It was the fact that we could interrogate the fitness for office of anybody who aspired to the highest judicial office. And I think that that’s very, very important.

Int There’s also been said to be much tension between the rest of the judiciary and the Court, in terms of the early inception of the Court, the lack of hierarchy the change of formality, the fact that the Court was, in some ways, restructuring a lot of the ways in which it worked…

GM Again, I think that’s true. And I think it continues to be true but to a lesser extent. I think that there is absolutely no doubt that there was resentment, jealousy, if you like, towards the Constitutional Court because it was so well- resourced, because its case load was very low, and it was viewed by many judges of the Appellate Division, as it then was, and many high court judge, as a luxurious Court. And it was viewed, quite unfairly I should add, by many of those judges, as something of a lesser Court. Because the attitude of, I’m afraid, too many of those judges, was that constitutional law was not real law, and that they were really doing the real work, and that this wasn’t proper law, and you know, what can you expect when you make appointments of judges who have had no judicial experience at all? Now, all of that was just crazy to be quite honest. Arthur Chaskalson, by the way, was appointed from the Bar to Chief Justice. He had never been a judge. In fact, I don’t think…again I stand open to correction, I don’t think Arthur (Chaskalson) even acted as a judge. And, nobody would question Arthur’s (Chaskalson’)credentials as a Chief Justice. We were extraordinarily lucky to get him as our first Chief Justice. But, you know, because of Arthur’s (Chaskalson’s) reputation as an advocate, there was a begrudging respect for him, but that was certainly not true of everybody else. And it was very, very unfair. You take somebody like Kate O’Regan, who in my book, turned out to be one of the finest judges who has ever been on the Constitutional Court. There were people who wrote her off. There were people who criticised her appointment. And there were others of course as well.

Int And then much has been said about the fact that the composition…the first Bench, was composed largely of people of the same ilk, and it was not representative of the country. And that particularly came to light during the first case, which is the death penalty case, which I’d like you to talk about next.

GM I’m not sure what is meant by that criticism, to be perfectly honest. Because there has been criticism of the Court, again I don’t buy it all, by RW Johnson for example, that this was an ANC Court. I think that while the Court might not have been mathematically representative, it certainly wasn’t mathematically representative, but it brought together a diversity of people who I think, in the main, I don’t want to suggest that this was a perfect Court, but it brought together a group of people who in the main did an absolutely extraordinary job. I’m not sure why people single out the death penalty ((S v Makwanyane and Another) case. If by that they mean that as a matter of personal conviction, the majority of the members of that Court, if not all of the members of that Court, were opposed to the death penalty, I’m not sure that that’s altogether surprising. But it’s also not altogether accurate. Because amongst the sitting judges who were appointed to that Court, I can tell you as a fact that Johann Kriegler either sentenced or confirmed death penalties. Laurie Ackermann did the same. John Didcott never sentenced anybody to death; that I know for sure. So there were people certainly on that Court who, in their prior judicial capacities, had either sentenced or had confirmed death sentences. So, I’m not sure what to read into that criticism. Obviously, it was a critically important case, but it was a case in which all eleven judges gave a judgment. That’s never happened since, and I suspect that might have been a deliberate choice on the part of the judges, for them each to make their own first contributions to the jurisprudence of this country.

Int I wondered, Gilbert, you were involved in the Makwanyane (S v Makwanyane and Another) case, I wondered if you could talk a bit more about that?

GM I can, and I can tell you an interesting anecdote as to how I got to be involved. The Interim Constitution was passed on the 27th of April, 1994. A friend of mine, who is a journalist, Carmel Rickard, made enquiries as to which was going to be the first death sentence appeal in Bloemfontein after the 27th of April 1994. And I think that the first case was cropping up on either the 2nd or the 3rd of May. She got hold of the advocate who was going to argue the matter in Bloemfontein and said to him, “are you going to raise the Constitution?” To which the reply apparently was, “What Constitution?” (laughter) She then phoned me and told me about this. I then had a word with Wim Trengove and we spoke to the Bar Council about it, and the Bar Council then appointed Wim (Trengove) and I as pro deo counsel together with the original advocate to do the appeal. And we, in turn, persuaded Geoff Budlender to act as the attorney for it. So that’s how I got involved in that case. That was the very first case, which was argued. Interestingly it was not their first judgment, it was the first case though. And it was a clean slate. Wim (Trengove)and I had never done anything like this before. We had this brand new Constitution, which was unique, but which had similarities to a bunch of other constitutions but was not identical to it, which had influences from German law, about which we knew absolutely nothing. And we had to put together this argument in circumstances where there was nothing to go by at all. Absolutely nothing. We did things in that case which probably one couldn’t

do today. We referred to articles, as if they were evidence. I was in contact with Amnesty International who had long campaigned against the death penalty and they had produced a book on the death penalty. We just handed the book up. As I say, it was the first case and everybody was feeling their way.

Int I’m also curious in terms of your memories of appearing before the Court and that particular Bench, what are your memories?

GM I have many memories but I suppose my overriding memory was, or is, just this extraordinary pride in this institution that one could go to this Court and raise constitutional arguments. As an advocate prior to the transition, when one raised an American case in the High Court, you were virtually laughed out of court. Arthur (Chaskalson) and I did a case under the Emergency, on behalf of Dullah Omar who had been detained under the Emergency. And I remember the Chief Justice then, Chief Justice Rabie…this was a case about access to a lawyer while you were in detention. And we advanced a range of arguments that this was a fundamental right. And the Chief Justice quite candidly said to Arthur (Chaskalson) at some point in the argument, why do you call a right fundamental? Now, that was in what? 1987. So in a very short space of time thereafter the whole legal discourse had changed. So that’s my overall view. Let me say this though, the first Court was a very, very tough Court. I’m not just talking about numbers. I mean, the mere fact that one is appearing in front of eleven judges is tough in itself. Each one of them had two research assistants. So, you know, one felt when you went into that Court it was like thirty-three against one with incredible research capacity and the like. But, the grilling which we sometimes got, from particularly Ismail Mahomed, John Didcott, Johann Kriegler, sometimes virtually at the same time, was sometimes very bruising. Look, that’s what we do as advocates. I say that not by way of complaint but merely to emphasise that it was a very, very tough Court. Look, as advocates, you know, we’re meant to be able to deal with it and we do deal with it. I think that it sometimes created a not terribly good impression for those in the gallery. Often for clients, I certainly had a number of cases in which clients felt they hadn’t been given a fair hearing. Now that’s a tough criticism to make, and one attributes it to perhaps a lack of familiarity with the kind of robustness that one sometimes encounters in Court. But I do think that sometimes the line was crossed, and I think it created an unfortunate impression. Let me stress that despite the robustness of the debate, we are talking about people with a genuinely open mind, people who are genuinely open to persuasion, and so, you know, one didn’t read anything in to what happened. I mean, I can tell you by way of anecdote that the one case that I chose to bring my mother to come and watch, which was in fact the AZAPO (Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others), case, in which there was a challenge to the constitutionality of the legislation setting up the Truth and Reconciliation Commission, the very important case, I was horrifically treated by John Didcott, and my mother was there (laughs) to see it. John

(Didcott) was quite oblivious to it. I mean, we spoke afterwards and he thought we had a wonderful debate (laughs). I’m very pleased he enjoyed it (laughs).

Int That was at some point, picked up by the media, quite early on, and at some point that did stop. I wondered whether you were involved in that at all or were you aware of the media engagement with that issue?

GM I was not consciously aware of it and I certainly never raised a complaint. I didn’t think it was appropriate…I had nothing to complain about, let me be honest with you. They were tough, sometimes bruising encounters, but I never regarded any of them as illegitimate. They could have been done in a different tone and in a different manner, but I never raised a complaint.

Int Gilbert, I’m wondering, the next case after Makwanyane (S v Makwanyane and Another), was that the AZAPO TRC Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others) case, or was there one before that?

GM That I was involved in? I think that there were actually quite a few before that. But I can’t actually remember the chronological order now.

Int I wondered whether, because you’ve appeared so frequently, besides Wim Trengove, I did a qualitative analysis, you and Wim Trengove have appeared the most in front of the Court, I wondered whether you could talk a bit about the cases that stand out for you, the judgments that have had a huge impact on the society, and that you are proud of?

GM I think that in one sense that’s easy. You might think I’m going to mention the death penalty (S v Makwanyane and Another) case, but I’m not. For me, the one that I’m most proud of, is the case involving the Treatment Action Campaign (Minister of Health and Other v Treatment Action Campaign and Others), and the struggle to get antiretroviral drugs. I single out that case for a number of reasons. Firstly, its importance. The Treatment Action Campaign, as its name suggests, was formed in order to campaign for antiretroviral treatment for everyone living with HIV. And they were an extraordinarily, and are an extraordinarily effective NGO (non-governmental organisation). And I was approached to do the first case. And there was a huge debate as to what the first case should be, bearing in mind that the ultimate aim was antiretroviral treatment for all. We appreciated…when I talk about the approach, I’m talking about, I think, around about 2000 thereabouts. The prospect of persuading the courts to provide antiretrovirals for everyone living with HIV, we thought was a bridge too far. There were estimated by the state at that stage, about five million people living with HIV, but the cost of treatment would have been absolutely prohibitive, and secondly the administration regime at that stage was extremely complex. It involved

monitoring of blood count levels, and a very careful and constantly monitored drug regimen. And we just felt that that was a battle at that stage, which we couldn’t win. There was a category, which was also considered, which was in one way perhaps an obvious candidate for the first case, and that was antiretroviral treatment for rape survivors. The equities of providing antiretrovirals for that class were overwhelming. The problem was that, for obvious reasons, there was no clinical trial. You could never conduct a clinical trial to test the effectiveness of ARVs in those circumstances. The other option was antiretrovirals to prevent transmission from mother to child. At the stage that we entered into discussions about this, there was a drug, which was the drug of choice to prevent mother to child transmission, but it was very expensive and its regime was very, very complicated. At the time that we consulted there were trials being conducted in Uganda around a new drug called Nevirapine. What separated Nevirapine from the rest of the antiretrovirals in relation to preventing mother to child transmission, was that a: it was extraordinarily cheap, and b: its administration was simple. All it required was one pill for the mother when she went into labour, and a certain number of drops for the newly born child within forty-eight hours of birth. It was as simple as that. The problem was that Nevirapine was not yet registered with the Medicines Control Council, which was the body, which regulated the availability of medicines in South Africa. So the dilemma we faced is, well, what do we do? Do we wait until Nevirapine is registered with the Medicines Control Council, knowing that in the interim deaths were resulting from mother to child transmission? Or do we try and persuade the Court to compel the state to administer Nevirapine in circumstances where it was not yet registered? So it was an agonising choice and we decided that we had to wait for Nevirapine to be registered. While all of this was going on, President (Thabo) Mbeki was having more than a flirtation with the denialist cause. And there was literally a war, which was a political war, which was taking place, which was being spearheaded by no less a person than the President and a very willing Minister of Health at the time. And that was the atmosphere that prevailed when we went into that case. It was an absolutely bitterly fought case. There were five appearances, three in the High Court, two in the Constitutional Court, within the space of six months. It was fought as bitterly as any case that I had been involved in during the apartheid era. It was a case, which certainly had involvement directly from the President’s Office. One couldn’t have had a more adverse political climate in which to fight a case of such importance. And that’s the case that I single out for me as the one of which I’m most proud, and one which was quite extraordinary given the time in which it occurred, and the political climate in which it occurred. And its impact has been huge. I was talking to two of the members of the Treatment Action Campaign just a while ago. At the time that we fought the case there was not a single person in the public sector on antiretroviral drugs. Today there are 1.5 million. At the time we fought the case, the percentage of transmission of HIV from mother to child was in the vicinity of thirty percent. Today, it’s one point five percent. So at the level of impact and significance, for me that’s the case.

Int Much has been made about the fact that the TAC (Minister of Health and Other v Treatment Action Campaign and Others) case was a case that the Court came very close to interfering with the Executive, and I wondered whether you could talk about that criticism?

GM Well, it’s funny, every time there is an important case, normally the media or some commentator says, well, this is the case, which is going to test. There have been lots of cases like that. And typically, in socio-economic rights litigation, the tension is between where the Court’s role begins and where the executive role ends. So it was not unusual in that respect, it is a typical feature of these kinds of cases. Our opponents in the case certainly punted that line and punted it very heavily. The refrain, which I heard many times, was, how intolerable it was that you could have judges prescribing medicines from the Bench. Now that was false. That was pernicious and it was false. The truth of the matter is that Nevirapine was the Department of Health’s drug of choice, there was no prescription whatsoever. The debate was around the availability of the drug, not about the prescription of the drug. So the medical choices were in no way interfered with. The manufacturer of the drug, which was Boehringer Ingelheim, had offered to make the drug available free of charge for five years. So there was no question of state expenditure involved, and even if they didn’t make it free of charge, the cost of the dose was ten rand. You’re talking about negligible amounts to save lives. So yes, it was portrayed by supporters of President (Thabo) Mbeki at the time, and the Ministry of Health, as being the case in which the line was crossed, I think that that is simply pernicious.

Int I’m also wondering, what the arguments, if any, were from the rest of the judiciary about that judgment in terms of whether it did in fact border on crossing that line?

GM I’m not aware of such criticism, maybe it simply passed me by. But the case was overwhelming. It’s always difficult in cases, which assume some level of controversy, for critics and the public to actually appreciate what it was about without reading the evidence. In that case the evidence ran to thousands of pages. The State was basically unable to refute the case we put up. And cases are decided on evidence. And so, I sometimes get irritated when there is uninformed criticism from people who simply haven’t taken the trouble to read the record. And sometimes it’s a lot of trouble. I can’t remember how big the record was in that case, but it was thousands of pages.

Int And in terms of the judgments…what was the judgments, in terms of people who wrote the judgment?

GM It was, I think, the first case…possibly the first one, I’m not entirely sure, but one of the very few cases in which the judgment was by the Court. So there is

no name that is attached to the judgment. It is a unanimous judgment by the Court. Again, I don’t know what went on behind the scenes but I would regard that as terribly important because it was a unanimous judgment, everybody was behind it, there were no dissents, and one doesn’t know who the author was.

Int Besides the TAC (Minister of Health and Other v Treatment Action Campaign and Others) case, you also mentioned the TRC (Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others) case, and I wondered whether there were other cases that really stand out for you?

GM You know, the truth of the matter is, is that there is almost, I stress almost, no such thing as an insignificant Constitutional Court case, because by definition they’ve got broader implications. But obviously there are some cases, which have greater significance than others. I did mention the TAC (Minister of Health and Other v Treatment Action Campaign and Others) case for this reason, that there was a challenge and you’ll appreciate the significance of it when I tell you from whom the challenge came. AZAPO was the first applicant, but the second applicants were the Biko family. And the third applicant were members of Griffiths Mxenge’s family ((Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others). And they were challenging the constitutionality of the legislation, which set up the Truth and Reconciliation Commission. Their argument was that it was unconstitutional to provide immunity from prosecution or civil liability for people who had committed the most horrendous crimes. And at a moral level it was an extraordinarily compelling argument. But at a political level it was, as has been suggested, the glue which held the Constitution together. Because in an eleventh hour amendment to the Interim Constitution, there was a postscript added…so when I say, eleventh hour, I really mean it…which provided for the granting of amnesty in relation to politically motivated crimes. And what occurred was this, that FW de Klerk was anxious to insulate the Security Forces from Nuremberg style prosecutions, and President (Nelson) Mandela did not…or couldn’t be sure of the loyalty of Security Forces. So it was a compromise. And the compromise was this formula of amnesty for truth. If you came forward and you told the truth, you had to confess basically…not basically, you had to confess, that you had committed a politically motivated crime, and if you told the whole truth, you would be able to get amnesty for it. And so it was hugely, hugely controversial. It’s a matter of controversy in international law as well, because there are highly respected academics and institutions like Amnesty International, many others, who disagree with the concept of amnesty. Who disagree with it at the level of fundamental principle. They argue it is far better to prosecute and then to pardon, but this notion of amnesty for truth was anathema to many, many people. However, as I suggest to you, it was an integral cog in the transition to democracy and for that reason I think it was a critically, critically important case.

Int And much has been made about the emphasis in this Court on socio- economic rights, and I wondered whether you could talk about the justiciability of socio-economic rights on the Court?

GM Sure. Again, it was a hugely controversial issue in the drafting of the Constitution. And it is a controversial issue in all-open and democratic societies: how does a particular democracy deal with socio-economic rights? Is it purely a political matter or is there a role for the courts as well. And there are different formulas which have been adopted but they are all attended by various degrees of difficulty and controversy. I think that given the unequal nature of our society in every sphere, it seemed to me that there would be a huge gap in our constitutional democracy were provision not made for some mechanism for the enforcement of socio-economic rights. It’s attended by a range of problems. The one is the one we’ve already been discussing, and that is the line that one draws between the executive, the legislature, and the judiciary. The other is a resource argument. We are dealing with a developing country in which there are massive demands for education, for health, for social security, for sanitation, for water, you name it. And how and where does one strike the balance in finding a formula? The drafters of the Constitution, I think, came up with a very clever formula. They built in the requirements of socio-economic rights and they imposed an obligation on the state to…and this is the formula…to progressively realise those rights. And there are two limitations on the way in which this is to be done. The state is obliged to take reasonable measures, and secondly, they are obliged to do so within available resources. So it’s an attempt to marry all these competing considerations and to come up with a formula. Of course ultimately it’s left to the Constitutional Court to interpret those rights and to lay down principles as to the application of what is reasonable, what is meant by available resources and the like. The cases in that sphere I suggest are inevitably controversial, because they raise these very, very difficult issues. There have been critics of the Court’s socio- economic rights jurisprudence, the main line of criticism is the refusal by the Court to identify a minimum core of these rights, which the Court declines to do from its very…well, not its very first case, from the Grootboom ((Government of the Republic of South Africa and Others v Grootboom and Others) case, and has consistently maintained that stance thereafter. Most of the criticism, I think, turns on line drawing, really. And I think those are matters around which one can have legitimate debates. But certainly if the State is told to do something, they are inevitably going to complain that this crosses the line. The victims who are denied access to electricity or water, or social security, or whatever the case may be, will criticise the Court for not going far enough. My own view is that the Court has done a good job in this very difficult sphere.

Int I’m curious, you mentioned the Grootboom (Government of the Republic of South Africa and Others v Grootboom and Others)case, and there’s been so much of discussion in the media and with judges and counsel about the

outcome of the case, that this was the judgment but Mrs Grootboom didn’t get her home. And I wonder what’s your take on that?

GM Well, at the level of fact, it’s true. Mrs Grootboom didn’t get a home. But I think that that’s an inappropriate test for measuring the significance of the case and its impact. I think things went wrong in that case. In fact things went horribly wrong in that case. that case started out as an eviction, plain and simple. The magistrate who was hearing the matter…or the judge who was hearing the matter, really saw it as a plain, old-fashioned eviction case. It was only at the time that the Legal Resources Centre became involved that the true significance of the case became apparent. And the Legal Resources Centre, really under Geoff Budlender, was the one who brought out the true issues involved. If one reads the judgment carefully, you will see at the end of the judgment that the Human Rights Commission was mandated to monitor what was happening in the case. I don’t want to be unfair to anybody but to the best of my knowledge nothing was done. So, had there been proper monitoring, had there been the kind of follow-up which I regard as essential to successful socio-economic rights litigation, it might well have been that Mrs Grootboom would have got her house. I can’t say for sure. So things went wrong in the very conception of the case. It was rescued by the Legal Resources Centre, there was meant to be monitoring, there wasn’t any to the best of my knowledge. But that’s not the sole measure of the significance of the case. The case (Government of the Republic of South Africa and Others v Grootboom and Others) gave rise to what are known as the housing codes, which are an annexure to the Housing Act, which contain a blueprint as a direct result of the judgment for the provision of housing and shelter at every level of government. Now there have been huge problems at the level of implementation, but you can’t take away the fact that the state has taken steps, albeit inadequate steps, to give effect to the judgment. I can tell you that in a number of cases in which I’ve been involved for the state, that there is a consciousness of their obligations, which flow from the Grootboom (Government of the Republic of South Africa and Others v Grootboom and Others)judgment. Again, I don’t want to overstate the level of consciousness; it varies. Some departments are better than others. But certainly, in my experience, there is an awareness that these are the principles the Constitutional Court has laid down, this is how we’ve got to go about addressing socio-economic needs within the country, and we have to do so guided by these principles. Now they sometimes get it right and they sometimes get it wrong. But I suppose the point I’m making is that the impact of the judgment is very often invisible.

Int I’m curious, Gilbert, in terms of concerns of society and its relevance to decision making within this Court, what is your understanding of that?

GM Look, I think it must be naïve to believe that a Court is immune from the society in which it lives. I just think that that takes a far too simplistic view of

human nature, I think it takes a far too simplistic view of judicial conduct. I think that it is extraordinarily difficult for any judge to pretend. I think it’s impossible for any judge to pretend that they don’t live in the real world. So cases take place in an environment, they take place in an atmosphere. It’s why I attach such significance to the Treatment Action Campaign case because it took place in an extremely hostile political environment, and the Court stood firm. Now, that’s why I think it’s a fundamentally important decision. If you’re asking me, is the Court utterly immune from external influences? And I don’t want to use the word influence to suggest improper influences – of course they’re not. Judges read newspapers, they know what’s going on in the world, they are aware of the attacks on the Court, and there have been many attacks on the Court and it seems to go in waves. We’re currently in a phase of an attack on the Court. And I think that it must have an impact. How it plays out is a different matter.

Int In terms of politics and decision making, in 2008 there was the Joe Slovo (Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others) case, and there’s been a sense that what was happening in terms of interference in the Court at that point may have impacted on the decision, the judgment that was handed down. What’s your sense of that?

GM I think that’s nonsense, to be perfectly honest. I mean, there have been in the last month, there have been four cases handed down by this Court, relating to housing and evictions and the like. There is a consistent pattern of jurisprudence. This Court has been very, very strong in relation to protecting the right to housing. And the Joe Slovo (Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others) case was a case, which involved a potential eviction of sixty thousand people. I mean, that is huge! So I don’t buy that for one moment at all.

Int I’m also curious in terms of interference in the Court, over time, you’ve said that it comes in waves, and I wondered if you had to analyse those waves what exactly the central issues are in terms of…is it the independence of the judiciary, is it a need for the Executive to control? What’s your sense of what’s going on?

GM Look, I don’t think South Africa is unique in these kinds of struggles. In the thirties there was an attempt, which came to nothing to pack the US Supreme Court. The issues which politicians have with the Court are inevitably political issues. Given that this is a Constitutional Court, the issues that it deals with are inevitably of a political nature. And so there is a temptation on the part of politicians to have their people on the Court. I think that what you have seen recently is an attempt to keep Justice Moseneke out as Chief Justice at all costs. And I think that it’s purely political. I think that Justice (Dikgang) Moseneke is perceived not to be a supporter of President (Jacob) Zuma. Whether that’s true or not, I don’t know. But that’s the perception. And I think

that what you are seeing, or what you have seen, is an attempt to ensure that he’s not Chief Justice come what may. It’s a silly thing because he’s still a member of the Court. His voice is as strong or as weak as it ever was.

Int In terms of the different Chief Justices, did you notice a fundamental shift in style of leadership and management from the time Arthur (Chaskalson) was until 2005, and then Pius Langa, and then Sandile Ngcobo?

GM There are palpable differences. I think if one was to generalise, and I think one can only really do so in these circumstances, I think that the Chaskalson Court was a Court, which did two things. I think that it was a Court which was consciously or sub-consciously intent on laying down a series of bedrock principles. And you see that particularly in Arthur’s (Chaskalson’s) judgments, and in the judgments of the Courts generally. General bedrock principles about constitutional law and the ones that stand out are the rule of law and judicial independence. I think that’s the hallmark of the Chaskalson Court. I think Pius (Langa) continued in the same tradition. An extraordinarily dignified and decent man, but I think he continued the tradition. He was the Chief Justice at the time of the (John) Hlophe saga, and he stood up to it. And that was a critical fight…still is…about judicial independence, and he was the one who was at the helm at the time and he was the one who will be remembered, I think, for standing up in that way. That was followed by Justice (Sandile) Ngcobo’s tenure. He’s an extraordinarily hardworking clever man. A man who had a powerful intellect on the Court. But went out, I believe, under a cloud. I think very unfortunately so. In accepting the extension of his office, I think he made a mistake. And although he withdrew his acceptance I think within two days of the judgment being delivered, I fear that that will be the cloud, as it were, that hangs over his Chief Justiceship.

Int And you’ve challenged his extension, I wondered whether you could talk about that?

GM Yes. Well, let me say, it’s a case, which in a perfect world, it’s a case I’d rather not have done. It’s a case which one…well certainly I, and my colleagues who were with me…Wim Trengove was with me, Vincent Maleka was with me…is not one which one approaches with any enthusiasm whatsoever. We were determined to depersonalise the issue. And we made that absolutely explicit in our papers and in our argument. But there was a crucial issue of principle at stake. And our clients whom we represented felt that this was of such fundamental importance that a challenge was necessary. And ultimately, and I do have to say this…ultimately it was a very…in the scheme of things…a very easy challenge. The Constitution wasn’t ambiguous on this issue. There were judgments of the Constitutional Court, which had addressed themselves to virtually the identical wording, which was at stake in this case. It wasn’t a difficult issue. And I think it’s regrettable that Justice (Sandile) Ngcobo

accepted his own extension. He was the author of one of the principle cases upon which we relied. But there you have it.

Int In terms of the issue of pragmatism and principle, and you’ve alluded to this earlier, I wondered whether you could talk about how you think judges have to grapple with that, the issue of pragmatism and principle?

GM You know, I think one of the hardest dilemmas, which faces any judge, is the contest between their head and their heart. And it’s not new. It faces all judges at some point in their careers. But it’s a tough contest which takes place, and it’s one which is easy to succumb to by giving way to your heart. But it’s very dangerous for the development of the law. Potentially very dangerous for the development of the law. Because when you tinker with principle, it has the nasty tendency of coming back to haunt one. Because you tinker with the principle in one case and you’re confronted with what you’ve done in another case a few years down the line. I think that the great judges are the ones who recognise that tension, and the ones who do what is legally right, as opposed to what is expedient. Often very difficult to discern that because judges are clever in camouflaging what they do, but to pretend that it doesn’t exist would be naïve. So I think equities play a huge role in judicial decisions. I think that at an instinctive level, if a Court is with a particular party on the equities of the matter, you’re halfway home. That’s of course when they come to grappling with the actual decision, and how they justify the decision, that the real work is done. So, I think that that’s an on-going difficulty. I’ll give you an example, it was a case in which I was involved, about the right to water (Mazibuko and Others v City of Johannesburg and Others) .

Int That was through CALS (Centre for Applied Legal Studies)? Is that correct?

GM No, I acted…it was a CALS case but I acted for the City and for Johannesburg Water. The applicants were five individuals who were demanding fifty litres per person per day, free of charge. Now, at the level of equities, you know, it was a very, very tough case because you’re talking about poor people, you’re talking about water, and its centrality to sustaining human life. And the pull of a case like that is huge. So again it was a case, which I didn’t embark upon with a great deal of relish, but when we started going into the case, a number of things emerged. The one was that the City of Johannesburg had one of the most progressive water policies in the world. The other thing that emerged was that there are within Johannesburg roughly three quarters of a million people without access to water at all. The applicants by contrast were people who did have access to water, they were people who lived in a suburb of Soweto called Phiri. And the fight was about the adequacy of the amount of water that they were given. A further thing that emerged in the course of preparing for this case was that we were unable to find any country in the

world in which there had been a judicial determination of fifty litres per person per day free of charge. And the approach that I adopted on behalf of the City and Johannesburg Water, was that we were going to tell the Court everything, warts and all. We were going to present to the Courts the challenges that were facing a city like Johannesburg in making adequate provision for all its residents. And we did so. And we were able to show to the Courts that this was a good faith endeavour to produce a plan, along all the Grootboom principles, to get back to what we were talking about earlier. To ensure that to the best of their ability, within available resources, that everybody benefitted, and that in the case of those whose needs were greatest, the city had put in place a special indigency policy so that where there was a demonstrable need poor people could get as much water as they needed. And the City won that case. Now it’s one of those cases, which has generated some controversy. Again, I hasten to add I’m not the right person to speak to about that case because I represented one of the parties. But again, it was a case, which I can tell you was on a record of over seven thousand pages. And you can’t do that judgment justice without knowing what’s in there.

Int Absolutely. There’s been some recent criticism that perhaps the Constitutional Court sees too few cases, or hands down too few judgments, and also that the judgments are extraordinarily long and that they’ve become over time more discursive. I wondered what’s your sense of that and if you have any criticisms?

GM I think that the trend has actually been reversed. I think that they have become less discursive, and I happen to think that that’s a very good thing. There are two parts to your question. The one is the number of cases and the second is the style of the judgments. Let me talk about the number of cases first. I think that in the early years the Court, perhaps rightly, I’m not sure, adopted the view that unless they took a very firm approach, about access to the Court, they’d be flooded. And so they adopted, what some people regard as a parsimonious approach to access to the Court, with the result that they heard relatively very few cases. I don’t know what the statistics are, but certainly the numbers are low. Work in that that sphere has been done. I think that there are two issues which you need to consider there. The one is whether it was legitimate to be so firm on regulating access to the Court. I think it’s a matter for debate, I think that perhaps they went a little bit too far. I think that there have been cases in which they have denied access where they should have. But I do recognise the necessity to keep their caseload under control, and also, given the nature of the work that they do, it’s not a good idea for them to be swamped with all sorts of cases. So I recognise an issue there. I think related to that is something which is not generally known, and that is what I call the hidden work of the Court. This Court faces huge numbers of applications for leave to appeal, which are adjudicated upon in chambers. Most of them are at any rate. And there are vast numbers and the public doesn’t see that. What the public sees are only the ones which are set down and which are heard. So I think that if one’s going to have a fair debate

around the Court’s caseload, I think one has to see both what they do and take into account what takes place hidden from the public view. At the level of a content of their judgments, I think that in the first few years there was a huge problem. I think that there were…many of their judgments, which resemble treatises, rather than judgments, I don’t think it was a good idea. I think this was the highest Court in constitutional matters. There was a necessity to lay down clear, crisp principles for the guidance of lower courts and I think to some extent the Court lost its way in that regard. It was far too intent on long scholarly thesis like judgments and I think that that…I think it engendered resentment because it created the appearance of this luxurious Court where judges had all this time in the world. And I think it was counterproductive. I think that that’s changed over time and I certainly think that the degree of that kind of dense thesis style of judgments has in essence passed. I think that the judgments sometimes tend to still err on the side of length, but you know, I think that again, one’s got to bear in mind this is a relatively young Court, it’s important that they say what they have to say, and it’s important that other courts absorb it. And I, for one, still believe in the necessity of the Constitutional Court remaining the apex Court in constitutional matters. It’s still a matter of actual concern, to me at any rate - how often the High Court and even the Supreme Court of Appeal don’t seem to take as their starting point section two of the Constitution which says, this Constitution is the supreme law. It’s a way of thinking, it required a reorientation in the whole approach to law from everybody. But I remain concerned sixteen years down the line how frequently High Courts and the Supreme Court of Appeal don’t seem to have absorbed those absolutely fundamental starting points.

Int Do you think some of that misconception, has been obviated by the idea of having the acting judges coming in from the High Court, from the Supreme Court of Appeal, to the Constitutional Court, to really gauge how the judges work here?

GM I’m sure that that has helped. And certainly in my personal discussions with those who have had acting appointments on the Constitutional Court, I do think that that has contributed to, I suppose, you know, clearing the air, for want of a better description. So I do think that that is very important. But that said, it still is a matter of some surprise to me…well, I am surprised at how often I read a judgment of the High Court, or I read a judgment of the Supreme Court of Appeal, and I think to myself, but for heavens sake, you know, the starting point is wrong here, or, why have you ignored this approach or that approach?

Int Some say that the tension between the Supreme Court of Appeal and the Constitutional Court is a necessary tension, but in terms of your understanding of the constitutional jurisdiction, how do you understand this tension?

GM I have quite a lot of difficulty in understanding why there should be a necessary tension. There is a hierarchy of courts, as there is in any country, and the Constitutional Court is the highest Court in constitutional matters. There shouldn’t be a debate about it. There shouldn’t be any second-guessing when it comes to a precedent of the Constitutional Court. That is what the Constitution prescribes. Yet there is. Sometimes it’s not obvious, but again…let me say, I think things have improved. These things are not static. You asked me earlier about the tension between Ismail Mahomed and Arthur Chaskalson. There was, without a shadow of a doubt, a period when the Supreme Court of Appeal under Ismail, was attempting to make its judgments appeal proof. So there was this conscious endeavour to decide questions on the strength of the common law in the belief that the Constitutional Court would shy away from taking on appeals simply because they were decided on the common law. Now look there are remnants of that still and…but I don’t see an argument which says that there is a necessary tension, I don’t buy that. I think it’s an unnecessary tension.

Int (laughs) Gilbert, I have a sense that we have so much more ground to cover, so I wondered whether, in the interest of not fatiguing you entirely, I wondered whether we could stop at this point and then continue at a later date?

GM Certainly.

22 Collection Number: AG3368

CONSTITUTIONAL COURT TRUST ORAL HISTORY PROJECT

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