Xolisani Holland Constitutional Court Oral History Project 7th December 2011

Int This is an interview with Xolisani Holland and it’s the 7th of December 2011. Xolisani, thank you so much for agreeing to participate in the Constitutional Court Oral History Project, we really appreciate it.

XH Thanks very much, I mean, it’s an honour for me to be part of the project.

Int Thank you. I wondered if we could start, if you could talk about early childhood memories in terms of where and when you were born, a bit about your family background, and what were your experiences growing up in South Africa under apartheid?

XH Ja, well, I’m a last-born of a family of ten…we are ten. It’s only one sister, and I have nine brothers. And really, you know, when I grew up, when I heard the story of the death of my father in 1978, when I was maybe in primary school or so, it really changed my life, and I took things differently, you know. As a result I joined politics at a very young age, I think I was in standard five when I joined the Pan Africanist Congress of Azania. And of course with the influence of my brother. They were not much in politics then and really there was a huge fight between me and them when they discovered that I was a member of the PAC. PAC was not really popular than the ANC in the late eighties. But then I grew up under the politics of the PAC. And then my father died in a very violent way, in fact, we didn’t even know where his grown was until recently. He was killed, apparently, by apartheid machinery and that thing, I mean, to me, gave me a lot of anger, and a cause for justice. I wanted really to know what happened to him. I think that was the reasons that I chose to be a lawyer. So indeed, I mean…life was a challenge, I mean, after the death of my father, obviously most of my siblings were very young, so for my mother it was a very challenge, and I really thank her for the spirit that they had to raise us and, I mean, I have a Masters degree in law today because of her, I mean, under the challenges that were there.

Int Xolisani, you mentioned that your father passed away under very difficult circumstances, I wondered if you could talk about…was he politically active, your dad?

XH Not really, not really. He was not really politically active. But of course, I mean, apparently he was housing the guerrillas but within the farm; he was working in this farm and also grew up on this farm, so apparently information was leaked that he was housing guerrillas from time to time that were entering our villages and training us. Because I was also trained by APLA forces, I mean, as, well, I mean, to protect the community. So my father was housing those

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people and giving them food and so on and so on. But then when it was discovered and then he was ambushed apparently. I mean, he was taken away and then apparently killed with a few of the guys.

Int I’m sorry to hear that…before your father’s death, what sort of childhood did you have…because you said you changed after his death?

XH Ja, I think that like many in our rural area, you grew up normally like any other child. I mean, at home there were a lot of cattle and, you know, sheep, goats, and so on, so we’d look after them and then from time to time we have our small football teams, and then we’ll play like any other children and I was a good football player as well at the time. Ja, you know, but then you went to primary school. Primary school, you know, I didn’t enjoy much about primary school, you know, because the beatings. The teachers were very aggressive, but most of the people are saying that the then students are better than now, because now there is no beating anymore. But I differ with that, because many of the guys didn’t go to school, I mean, they left school because they felt abused and so on and so on. But then we had just such a normal…I mean, we grew up normally, like any other childhood environment. But of course I was…after the death of my father, things changed as a family. I mean, sufferings and so on and so on, but I mean, my mother was always there for us. I cannot complain much, you know, because there are many people that didn’t have opportunities that I had. So I cannot complain much, but really life was a challenge when we were growing up, especially primary school and secondary school life.

Int When you say it was a challenge, was that because of finances or was it because of the type of education? What were some of the challenges?

XH Both, both, I mean, you know, financially we were not that good, obviously we relied from my mother, and besides that, I mean, of course my mother had this herd of cattle, from time to time she will sell and then provide for the family. But again, education, I mean, education for us was a struggle. I mean, I travelled seven kilometres to and from school every day.

Int Walking?

XH Walking, I mean, from my village, passing town, you know. You know, when we were passing the town, there is a school here, but only for white people. We have to go travel other kilometres. And besides that, I mean, obviously was no electricity. But again when we were coming from the village there’s no electricity. You pass town, there’s electricity again, you go to another village there’s no electricity. So that’s the things that really we had to go through. But again, I mean, in high school…in high school, besides the fact that we learnt a lot, besides the Bantu education that we were forced to learn. You know,

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teachers were really prepared to risk their lives by continuous political…they wanted us to understand what was it that was happening in the country, and what is it that we have to strive to achieve.

Int I was wondering, when you mentioned going through the town and seeing the electricity and the school, at what point did you start questioning why things were the way they were? Was it after your dad’s death or was it before that?

XH Obviously after my dad’s death. My father died when I was very young; I only head about stories when I grew up. I had developed a hatred for white people. I think that’s because…that was the reason that I joined the Pan Africanist Congress of Azania then. But then I was young, I mean, young people like me at that stage, could not make proper political judgments. Ja, but because the policy of the PAC was that aggressive than that of the ANC, so I’m sure that was one of the reasons that I chose at the time to join the PAC.

Int You also mentioned the argument you had with your brother…brothers? I wondered whether you could talk about what the difference in ideology was?

XH I remember that when I was, for instance, doing matric, I used to go to this library, regularly, so as a result the library staff there knew me very well, and I was young, and all of them were white. So my brother apparently went to the library there and when he was signing for the books they saw my surname, they asked, “no, that boy that’s studying in that school is it your brother?” He said, “Yes.” When he came back home, he said to me, “Look brother, you have to stop this thing of PAC, because you see, those white people in that library likes you”(laughs). I laughed at it but indeed I left PAC after some years and I joined the ANC.

Int Why was that? Why did you leave the PAC?

XH I left the PAC in 1994…in 1996. I think the reason for that, when I was young, as I said, I mean, young people cannot make proper political judgments. And in 1996, there were a lot of problems with the PAC, but besides that, I saw the ANC as a correct organisation to take the country forward. I began to question the policies of the PAC, and whether they are realistic or not. So I thought that I must leave it, yes…

Int I was wondering, you mentioned high school also being a challenge at what point did you…complete your studies and what did you do thereafter?

XH Well, okay, I passed my matric, I think in 1993, and I did virtually nothing from 1993 to 1998, when I started my first degree. Obviously I was trying to

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organise…at one stage I worked at the garage as a petrol attendant, and at one stage I worked at a certain firm…I was really trying to organise myself some funds to assist the fees…just to get the registration funds, then I told myself I would see what I will do thereafter. But indeed I managed to collect some funds and I registered at the University of Fort Hare in 1998 for an LLB degree.

Int I’m wondering, Xolisani, …you said that you did virtually nothing, but it sounds like you were actually having a lot of little jobs along the way, while you were trying to gather money together for your studies. I wondered whether you could talk about some of your experiences, because it was during the post- apartheid era that you were really struggling.

XH Yes. You see, one of the things that people from rural areas, or from historically African environment, we were not guided properly in terms of careers to take, how to access funds, and things like that. So…but one friend of mine said to me, look, what you must do, just try to get the money for registration. And indeed, I mean, I did a lot of piecework, I mean, for instance, as I told you, I worked at a petrol garage for a year and a half. And there I was fired because I organised some strike (laughs). But then I think by then, for instance, I think I organised around two thousand rands. My target was to get five thousand rands, but I think I managed and at one stage I came here in Gauteng to work somewhere in Midrand, one of the firms, and then I organised some money even then. But then it’s then that we heard about the student, what was called TEFSA, an institution that assists…a government institution that assists needy students financially. So indeed, a lot of my education was paid for by TEFSA, and I repaid it fully.

Int You mentioned that early on you knew you wanted to be a lawyer; why a lawyer?

XH I think what happened to my father was something…I mean, was the reason that I wanted to be a lawyer, and I remember at a very young age when I was still standard seven, I was already communicating with the Bar…

Int Really?

XH Asking questions about how to become an advocate, things like that. My brother was shocked, one of my brothers was shocked to see a pile of documents from the Johannesburg Bar to me. Then I was shocked as well. So it was then, I think…what was happening…what happened to me and what was happening in the community, I think that was the reason that I became…I mean, I wanted to be a lawyer.

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Int When you say, what was happening, what are you referring specifically to?

XH You will remember, during those times, I mean, in the eighties and early nineties, you know, the brutal killings of people. I mean, in our village, for instance, when I was arrested in 1989, we were going to school and there was this huge roadblock, I mean, many of us were just taken away. Such abuses, I mean, I’m sure that was the reason that I wanted…I thought I must be a lawyer.

Int So you were detained?

XH Yes, we were detained. I was not alone. We were detained…I couldn’t write the standard seven exam.

Int How long were you detained for?

XH We were detained from October to January 1989, I think.

Int And during the detention what was some of the treatment that was meted out to you?

XH (laughs) I was very young, I mean, obviously it was not nice. In fact we were many…we were many guys of my age, because remember we were going to school, travelling this seven kilometres that I’ll talk about. So during a previous weekend, on Saturday, four soldiers were killed in our village, belonged to obvious for South African Defence Force. So apparently there was that investigation that was going on. No, the torturing and beatings, was something, I mean, they wanted to know, pressing us to say what is it that you know about it? And obviously you know nothing because at the time I was young and I could not have been there. So yes, I mean, torturing, you know, not eating properly, you see, so such things.

Int And that must have been quite a strain on your family, and particularly your mother, not knowing exactly where you might have been?

XH Yes…apparently…they knew later that a number of students were arrested, but obviously for a mother to see that her last-born, I mean, is in prison, not one of my brothers had ever been in prison before. Obviously I got some talking when I went out. But she understood later what was happening.

Int So at what stage did you finish your matric?

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XH I finished my matric in 1993, as I said.

Int Right. And from ’94 to ’98, you were looking for a job?

XH Yes, I was doing these piece jobs somewhere, yes, between that period, but I registered at Fort Hare in 1998.

Int Okay. And can you talk about your experiences as a student in 1998?

XH Interestingly enough, just before I registered at Fort Hare in 1997, one of my brothers, who has a degree in Agriculture, you know, convinced me to register for Bachelor of Agriculture. And I was giving in to this idea, you know, for whatever reason. And at Fort Hare I registered for Bachelor of Agriculture. But I stayed only three days, and while I was at those classes it was not my environment. And I made an arrangement to go back to law. It was a very interesting, you know, arrangement, I mean, to go back to law. Fort Hare had this reputation of training many people in law that were famous at the time that still are even now. But as a young student I mean, I was obviously nervous but there were friends, older guys that were calming us down. But I mean, I was one of the best students that I can say, at Fort Hare. As a result, that’s why they gave me a scholarship to study Masters. So even for my first year I was just a hard worker at school.

Int And in terms of aspects of law, what aspects of law interested you when you were studying at Fort Hare?

XH You know, unfortunately because of our background, I will blame apartheid as well, when I first came at Fort Hare, I didn’t have interest in particular kind of study. Until, I think, my second year when I develop interest in constitutional law and human rights. And then yes, then I met some lecturers, I would discuss, and they had interest in human rights law. Since I was in, I think, second or third year.

Int So you went immediately on to do a Masters after you passed…?

XH Yes, I got…what happened is that Fort Hare had this arrangement with Stellenbosch that a top student will go and do Masters at Stellenbosch and that would be funded by Stellenbosch. So I had that luck of being a top student, and then I went straight to Masters. In fact, even after my Masters at Stellenbosch, I registered for my Doctorate. But I couldn’t finish my Doctorate, because financial situation at home, I thought it would be unfair for me to continue studying, while my brothers had kids that need assistance, I mean, financially. Because obviously when you are an LLD full-time student

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inaudible I mean, it’s not really inaudible so you can’t do much about it. It’s when that I came back to Fort Hare and then became a lecturer in 1994, I think…yes, 1994…

Int 2004?

XH Sorry, 2004, yes.

Int And then at what point did you decide to apply to the Constitutional Court? How did that happen?

XH I went to Fort Hare in 2004, early. It was in March of that year that a friend of mine who was already here in Jo’burg, inaudible that then advised me…in fact, said to me, look, there are now vacancies at the Constitutional Court for clerks, but it’s for next year, but you apply a year earlier. And Fort Hare was notorious of having computers but the Internet would always be down. So I couldn’t go to the website of the court. So I said to my friend, just email me those things and then I’ll apply. And indeed I applied. But in my application (laughs) I don’t know whether I didn’t read properly the instructions that you must include your academic record, but I didn’t have my academic record, it only had my degree certificate. But another interesting thing is that when I left Fort Hare in 2001, I couldn’t graduate because I was owing the institution…TEFSA took time to pay, and I had to go to Stellenbosch. And I missed the 2002 graduation. And then in 2002 I was doing my Masters and I graduated in December 2002. So I graduated my Masters before my LLB (laughs). So, and then I graduated in 2003. So I posted the applications to the court, and I received a call that I was shortlisted and that I should come for interview. I asked who shortlisted me and I was told that it’s Justice Yacoob. I immediately became nervous because, one, I know his judgments, but especially the Grootboom (Grootboom and Others v Government of the Republic of South Africa and Others) case, I’m sure he will talk about it when you are interviewing him. It was a landmark case at the time, so I did it in my Masters level, in my research, because I was dealing with housing and stuff. I was told that the guy is blind, he can’t see. And I never saw that, even on TV. But when I came for the interview, I was very shocked, you know. As I was trying to determine whether the guy is really partially blind or maybe completely blind, he was already in at the interview, asking me questions. So I was very happy to be part of the people that were selected for interviews. I mean, working at the Constitutional Court at the time, even now, I mean, it was the greatest thing that a student of law can think about. Justice Yacoob reminded me earlier that he asked me about what my interviews were when they employed me. Do you remember what you said in your interview, “when I asked you whether you will be able to do the work of the Constitutional Court?” And I said, “no, I don’t remember.” “You know, you said you don’t know. That was the reason that I appointed you, because you were

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honest.”(laughs). I was just…he was asking me whether I’ll be able to perform well for him. His chambers are notorious of working very hard.

Int Really?

XH You do everything for the judge, while other chambers you select what is it that you want to do or you divide the work. In the (Justice Zak) Yacoob chambers you do everything for the judge. If he expect a memorandum, he expect a memorandum from all of you; if it’s research, from all of you. So when I said, I don’t know, but I will try my best. So that’s why he…he’s an interesting guy to work with. I think that I learned a lot from him, you know. From few things about life, I mean, how you have to…because obviously they are father figures to us, so you listen to them. He would even invite us to his place and tell us stories and…he even told us how to approach a judgment; how to ask questions. Those little things that makes you a better person one day. So, I mean, I was quite privileged to be part of the Constitutional Court, to be part of his chambers.

Int I wondered, working with Justice Yacoob, in terms of judgments; I wondered what were some of the judgments that were during your time, and that really in some ways sparked your interest, and made you stay on at the Constitutional Court?

XH There were a number of interesting judgments: the election cases. Whenever in South Africa, when you are approaching elections, whether national or provincial, there will always be cases that will come to the Constitutional Court. The one that comes in mind is Matatiele (Matatiele Municipality and Others v President of the Republic of South Africa and Others (1) (2)) case, where people of Matatiele, some people in Matatiele wanted to fall under KwaZulu-Natal, and some wanted to fall under the province of the Eastern Cape. What is interesting about this, the kind of work that is involved in the inaudible these are urgent applications, there’s a very short time to prepare, very short time to write judgments, so the work that you do at a very short time. And then secondly, the understanding of the importance of the judiciary because without deciding…and the importance of the Constitutional Court in particular…without deciding those cases, I mean, timeously, the election can even be postponed. So it’s Matatiele (Matatiele Municipality and Others v President of the Republic of South Africa and Others (1) (2)) case. Of course the case of Wouter Basson (The State v Wouter Basson). And the other case that was dealing with medical…medicine pricing, that was the New Clicks (Minister of Heath and Another v New Clicks South Africa) case. So those were the kind of cases that were interesting, and they were engaging us in terms of the volumes of work that as clerks we had to do.

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Int Why do you think that in Zak Yacoob’s chambers, people worked harder? What were some of the reasons?

XH I think the guy is a workaholic. He always wants his judgments to be the best and he expects his clerk to do very well, I mean, in terms of, he doesn’t want mistakes. He wants his judgments to be just properly researched. And I don’t know why people will always say that those chambers…people of quality they used to say. But you come to that environment and you always want to do the best.

Int I also wondered in terms of your relationship with the judge in particular, what was your relationship with him like?

XH All of us, for instance, when I come in to report, I mean, for work, it was July of that year, as I was saying, hello Judge, he say, no, no, no, from now on you call me Zak. You must never call me judge again...it was just difficult at first. But with Zak (Yacoob), for instance, you don’t make appointments, you come to him at any time, you call him at any time if you have a problem. So, as I said, that more than being an employer, he was a father to me, and as I said, we learn a lot from him. Not only work related stuff, I mean, socially and so on and so on. He will invite us for drinks at his place, and then advise us how to approach things and stuff. So I really, really enjoyed working for him. Even today, even today, I still call him and I still go to his place when I want advice and things. So our relationship has been strong since then. And it’s not only myself, and even other clerks that worked for him.

Int I wondered, Xolisani… you were here for a year, from 2004 to 2005?

XH He appointed me from July…in fact, for a year and a half. But what happened, I was supposed to…my contract was supposed to end the following year, which was 2006. But that year he was approached by former Chief Justice Langa, that I must come and assist in the Office of the Chief Justice that was developing then. In fact, there was one clerk that was working for the Chief Justice that was leaving for Germany, I think. So I had to discuss with Zak (Yacoob) whether he will release me to go to work for the Office of the Chief Justice. I was interested to leave Zak (Yacoob), even though my contract had not expired then. Reason being, the salary that I was earning for Zak was going to be doubled when I was working in the Office of the Chief Justice. And also, I mean, the prospect of having permanent job was higher then because it was only contract for clerks. So that’s what happened.

Int So when you finished your clerkship and you started working at the OCJ (Office of the Chief Justice), what was your title? What were some of the duties you had to do?

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XH My titles, I had many titles (laughs), surprisingly. Because we would be called by the administration, Justice Department, as an administrative officer. But (Justice) Langa would call me a researcher. So I was a senior researcher since then, and I’m still even today.

Int And you continue to be in the Office of the Chief Justice?

XH I continued to be in the Office of the Chief Justice during (Justice) Langa’s stay. I was doing a number of jobs when I was with Justice Langa, I was not only doing research, I was assisting in the Office of the Chief Justice and organising heads of courts meetings. Remember that there are different heads of courts and they come from time to time, they have to meet, discuss with the Department, discuss with the Minister, discuss with the President. So I was facilitating all those and then I will prepare agenda and I’m expected to prepare reports around those. And also importantly I was dealing with complaints of the Office of the Chief Justice that are coming from the public, and particularly from prisoners. Because from time to time prisoners write to the Chief Justice hoping that they can be heard. So I was dealing with those. And I’m still dealing with those.

Int I also wondered, Xolisani, you worked with Chief Justice Langa until his retirement in 2008, I wondered whether you could talk about the experience of working with him?

XH Like (Justice) Yacoob, Chief Justice Langa, I mean, expected us to work hard. He expected us to make sure that everything is accurate. If we have to schedule flight for him, everything must go well. If I have to schedule meetings in Cape Town, everything go well. And also he was a father figure to us. So I enjoyed working with him, very, very well. It was quite an honour for me really to have worked with him. It was just a wonderful experience.

Int Xolisani…you had mentioned earlier in your interview that you had been very interested in going to the Bar. I wondered what had led you down this particular trajectory and the fact that you have stayed so long at the Court, what is it that actually makes you stay?

XH You know, I think that there are a number of reasons. When you go to the Bar, you don’t get paid for almost a year. I thought that, until recently, I thought that I will go to the Bar, and after I organise myself for money and so on, I will go and do my pupillage. But I abandoned that, I’ve registered for my LLD now, so I’m concentrating on my studies as well now. So to be at the Constitutional Court doing my Doctorate, I mean, we have a very big library, biggest in southern region, in the southern African region, so it is an advantage to me.

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Int I also wondered, in terms of the research that you’ve done, what are some of the issues that stand out particularly for you?

XH I was interested in socio-economic issues and Zak( Yacoob) will be…

Int Sorry, and…?

XH And Zak, that is Justice Yacoob, was always assigned with cases that dealt with socio-economic issues. And ja, I mean, forced removals and so on and so on. So I was really interested in those issues of housing in particular, I was really interested in those.

Int And currently what are some of the issues that you are dealing with in your post as senior researcher?

XH No, currently, I deal with the whole organisation of the Office of the Chief Justice issues administratively. But legally I deal with all the complaints that are coming to the Chief Justice from different people. I do consult with people that want to see the Chief Justice on different issues, I deal with that. It’s not really…its no longer challenging that much for me but because I’m also starting as well, I think it’s keeping me well.

Int You worked for Justice Pius Langa, and then you worked for (Justice) Sandile Ngcobo?

XH Yes. Unfortunately I don’t have good experience working with former Chief Justice Ngcobo. You see I think that for whatever reason he never really believed in people that worked for former Chief Justice Langa. Because some of the things that we were doing, he took them away from us, and I know for instance, one Chief Director (Theo) Sefuba was also stripped of his title and so on. So inaudible, and at first really working with him was not really nice. We even believed that he lacked people management skills because (of) the way he would approach people was not nice. But later we get to understand each other well and then we worked.

Int I also wanted to find out from you, you said earlier in your interview, that working at the Constitutional Court is a great achievement for any young lawyer and I wondered whether having worked at the Constitutional Court for long that’s something that you still hold very dear too, your experience of working here?

XH Oh, yes! Firstly, how judges interpret the Constitution. You know, whenever when we were at the university, we would always look like, I mean, Justice so

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and so, in a particular case, what he said and so on. But now you become to understand why he said that, the reason, the thinking behind the judges and so on. Then following different judgments of different judges you become to understand really what is it that informed the judgment. So I mean, really I think I’m still one of those privileged people to work at the Constitutional Court, I mean, to work closely with the judges, have that privilege of disagreeing with him when drafting judgments to say that, no, but I don’t think you were right, and then especially (Justice) Yacoob. (Justice) Yacoob was very open and saying that, no, criticise me if you want to, and then we’ll engage that. And he will change the judgment if he thinks that really after thinking about it. It’s not easy to convince him though, but he’s a person that you can convince. And I enjoy it, we enjoy it, because we were learning and then for him to come back to say, look, after a long time I think you were right. You become motivated as a young person and think that, one day I’ll also be a judge, yes.

Int Xolisani, I’ve asked you a range of questions, I wondered whether there’s something that you’d like to include, that I may not have asked, in your oral history?

XH Oh, not at all, I just thank you for the opportunity that you have given me, and Constitutional Court really is one of the most important and really the most effective post-apartheid institution. So to be in this environment for anyone, this is just a great honour that you can’t describe. I also thank for the opportunity that you have given me, I mean, to present to you my few experiences of the court.

Int Thank you so much, Xolisani, and I wish you everything of the best in your career.

XH Okay, thank you.

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CONSTITUTIONAL COURT TRUST ORAL HISTORY PROJECT

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