Vusi Pikoli Constitutional Court Oral History Project 26th January 2012

Int This is an interview with Advocate Vusi Pikoli, and it’s the 26th of January, 2012. Advocate Pikoli, thank you so much for agreeing to participate in the Constitutional Court Oral History Project, we really appreciate it.

VP Thank you, Roxsana, and I think this is quite exciting and very challenging in terms of recording our own history.

Int I wondered if you could start at the very beginning, if you could talk about early childhood memories, what it was like for you to grow up in South Africa under apartheid, what were some of the challenges, and where you think your sense of social justice really came into play?

VP Well, suppose like any other black boy growing up in a black township…actually I was born in Port Elizabeth, 1958. Well, growing up as a young black boy in South Africa, I started being conscious of the bigger problems we had then, when I was still doing standard four, when our standard four teacher, Mr Thube, told us about the friend that he had who was white and he’d invited them to go to the house, but they couldn’t sleep overnight. Do you understand why? He explained to us, told us about the Group Areas Act. That you were not supposed to be there after certain hours and all that, and then I started internalising all those things. But the biggest influence has been the arrest, prosecution and conviction of my uncle. He was the last born in my mother’s family. Uncle Zolisa Sipoyo, who was arrested in 1963 and sentenced to twenty years on Robben Island. I was still a child then. I would hear my mother and her sisters and brothers talking about Zolisa (Sipoyo), Zolisa (Sipoyo). I said, how come I’ve never seen this Zolisa (Sipoyo). And then I was told that actually he’s on Robben Island. What’s that? Then they explained to me. He was a member of APLA, the military wing of the PAC then. It was the time when they wanted to go and kill Kaiser Mtanzima, who has just accepted the self-governing territorial status for the Transkei Bantustan. And he was therefore regarded as a sell-out, as a traitor, he’d sold us out. And therefore had to be eliminated physically. So my uncle got involved, he was just fresh from school and my grandparents had bought equipment for him to use in his trade. And he used those equipment to actually assist APLA, and to design weapons that were going to be used. At the time my grandparents were in Cape Town, so that’s where he was. So they took a train from Cape Town, going to the Transkei. And apparently word had got out, somebody had betrayed them. When they got to Queenstown train station the police were already there on the platform. So there was a little bit of a fight, and my uncle had my grandfather’s revolver at the time, so he used it, and I think he got the heaviest sentence for them all. He got twenty years. So from then on my appetite for politics was wetted. And I felt like there

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was this injustice in this country and that one cannot just sit on the sides. One had to actively participate. Ja, and then ’75, but I must say that from ’73 when we started having the student uprisings and boycotts at Fort Hare, remember the time we had this sweeping tide of the revolution in southern Africa. MPLA was fighting in Angola, and FNLA and UNITA were fighting against Portuguese colonisers. Next door to us in Mozambique you had the Frelimo and the Frelimo rallies. Up north we had Zimbabwe, people fighting in Rhodesia against the Ian Smith regime. That time I was doing form three, in ’73, so those Frelimo rallies, and the subsequent independence of Mozambique, Angola.

Int So you would have been about fifteen?

VP Ja. And then of course in terms of my real active participation, like most of the young black people of the time, really started around ’76. That time I was doing my first year law studies at the University of Fort Hare, you know, when Soweto broke out. And then of course the students who participated there. I recall the president of the SRC, who was against us taking any form of action at the time. He said, you claim to be the replicas of the rioting masses in Soweto and yet you enjoy the luxuries and comforts of Fort Hare! For us as young students fresh from high school, we are amazed at those guys speaking big English and all those things. But anyway, that motivated us to really get involved.

Int Did you study law at Fort Hare?

VP Yes, I did.

Int And what made you decide to do law? Did you think at that time during apartheid, that law could in fact be used as an instrument of social justice?

VP Ja, well, you know, the people who influenced me to study law, it was inaudible, who’s a prominent lawyer in PE. The late former acting judge, Patrick Maqubela. Former Judge President Somyalo. Those were the township lawyers who were actively involved. So I used to have discussions with them. I used to mix with people who are older than me. Even at school in my class, I was the youngest at school, in every class that I went to. So I always liked interacting with people who are older than me. And therefore I would sit with them, then we’d talk and discuss lots of things, politics and all that. And then I found that law it could be used. Whilst it’s used as an instrument of oppression you can also use it as an instrument of liberation. So that was my early childhood and growing up.

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Int Did you get a sense though, were there any examples for you as a young person studying law, that in fact the law could in fact be used as an instrument of social justice, at that point?

VP Well, for me the issue that…look for instance, most legislation in South Africa at the time, you know, apartheid was legislated, and I felt that it also needed legal brains to cause the demise of apartheid. Looking for instance at the Group Areas Act, Mixed Marriages Act, the Land Acts, and all that. If law could be an instrument of oppression, therefore I think we can turn it around and make it an instrument of liberation, you see. Take for instance, a knife, an ordinary knife, it’s not necessarily on its own a dangerous instrument. We use a knife for eating and doing those things. But depending on its use, then you can define what you can do.

Int I wondered, Mr Pikoli …Vusi, I’ll call you if you don’t mind…

VP Sure, I like that.

Int I wondered whether you could tell me about where you think your political activism really came to the fore and how you actually then went into exile?

VP Ja, as I said, 1976 we didn’t write that year…1976. We were expelled. It was for involvement. Tried to burn down the university. We were on the road in 1977. Every year from 1976 until I left campus we were fighting. And somehow, by the time I left I was doing my fourth and final year of BProc. But in 1977 you remember it was when Steve Biko died in detention. As a student board we demanded that we wanted to hold a memorial service for him at the sports ground at Fort Hare. And De Wet who was director then at the time, refused us. And we said, well, we’ll defy you. So we had our memorial service but then police came in numbers in their vans and almost all of the male students who were there were arrested. We were distributed to various prisons around Alice. I was taken to Fort Glamorgan in East London. Others were in King William’s Town. Others in Fort Beaufort. We were scattered all over the Eastern Cape, as it was then, the border area basically. So again, you know, they always say that prison can be a school, can be a bad school, it can be a good school. So we turned it into a good school of politics. When we were there we discussed further strategies, how to go about it. And then…

Int Were you released?

VP We forced the university administration to provide us with buses to go to the funeral of Steve Biko, and they did, without paying. So we saw that as a victory. And of course we want to push the boundaries all the time. So you will recall that, you know, I think for me the decisive year was 1979, you see? If

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you recall, the ANC, the January 8th Statement of the ANC 1979, of course we’d be having access to radio freedom, you know. It was the Year of the Spear, and this was commemorating that great battle, the battle of Isandlwana, of 1879. So it was the hundredth anniversary. So the ANC, you know, then used its underground structures in South Africa to mobilise for support. You know that? And of course students with their energy and enthusiasm are always receptive to militant ideas in a way of changing life generally. So that year, 1979, was the Year of the Spear. 1980 was declared as the Year of the Freedom Charter. That’s when I left South Africa, in 1980, the Year of the Charter. And then formally joined the ANC. Actually I joined it even before I left the country. From inside the country. Spent some time in detention under Section 22 of the Act at the time.

Int So before you were in exile?

VP Ja. This was in June 1980…

Int What prompted that decision to leave at the time that you did?

VP Well, we had formed ourselves into a cell. We were six. So we were given tasks by the ANC, distributing pamphlets, recruiting for the ANC, you know. And then our cell was uncovered, and two of our members, Thembi Mbiyabo and Gumbi Ndzube were arrested, and we felt that, well, it’s time for us to then leave the country. Actually we were advised to do so. So we left the country in September, 1980. And then formally joined the ANC, outside of South Africa, 1980.

Int What were your experiences of being in exile?

VP Ja, good and bad (laughs).

Int Okay, tell me, what were some of the good things and some of the bad things?

VP Ja…you know, I told you that we were this cell of six people. I’ve mentioned Thembi (Mbiyabo) and Gumbi (Ndzube). The other three that I didn’t mention, Sizwe Kondile, Phakamile Ximiya, and Thozamile Majola. You know, the four of us then left the country. When we got to Lesotho, Comrade Chris Hani at the time and Comrade inaudible, became also a general in the army, inaudible they gave us then instructions to continue with underground work. They said that you can get into university and also get military training at the same time. And then also in between you go for military training in Angola. So that’s what I did. And then Sizwe Kondile, who’s part of the Truth and Reconciliation

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records, he disappeared in Lesotho. Because at the time we were involved in operations inside the country as early as 1980/81. So Sizwe (Kondile) disappeared in 1981. We didn’t know what happened to him, but we suspected that he might have been abducted. But there were all sorts of stories people were telling about Sizwe Kondile. Some of them said that he’s a traitor, he betrayed us, joined the enemy. Until you got to hear of the truth from Dirk Coetzee, only 1989 or so, when he left Vlakplaas, as he was the commander of Vlakplaas, that before Eugene de Kok. So the story came out then that he was actually abducted by the apartheid Security Branch and was taken back to PE, but was kept at Jeffrey’s Bay police station where he was detained, beaten up, they tried to recruit him. Dirk Coetzee had to deal with that matter because I think they’d beaten him so badly that he sort of suffered a brain haemorrhage. So he had to do another job to make sure that he disappears without trace. So that’s why they had to call Dirk Coetzee, from the Transvaal then, to go down to the Eastern Cape. So they drove with him to Komatipoort. That’s where he was actually then given poison, shot, his body was burnt, and they were drinking beer and having a braai at the time. And then his ashes were scattered in the Komati River. You see and this is the time of exile. 1982, the Lesotho raid, I was in Lesotho at the time, where forty people were killed. Ten local people, thirty ANC local comrades. Seeing those people who were shot by the SADF. At the time some of them burnt so badly, that you could see their brains oozing out long after they’d gone. You see? And the stench of death stayed with us for a long time. Because the mortuary there, the government mortuary in Maseru, was not functioning properly. It was in December, you recall, on the 9th of December, 1982, so it was hot and Lesotho can be hot when it’s hot, you see. So by the time they were buried and we had to line up, the guard of honour, the stench of death was so strong in our nostrils, and that stayed for some time. But those were the experience that we had. 1985 again, that raid, I was still in Lesotho at the time, when again we lost a number of our colleagues at the time. Ja, but anyway, what sustained us was our conviction that we are fighting a just war. That ultimately we’ll triumph. So that kept us going. And ja, we used to have our own parties. Tried to make life as normal as possible. And…but what was important at the time was political education. Political education. Being constantly reminded that the armed struggle is just an extension of the political struggle. It was when everything else failed, that the ANC had to resort to the establishment of Umkhonto we Sizwe. And in December we are celebrating fifty years of Umkhonto we Sizwe. This year marks the 100th anniversary just to show that the cause that we were fighting for, was and is a sustainable cause. The cause of democracy and justice.

Int I wondered, Vusi, in terms of your own political education, the discussions you may have had in exile, how in terms of what would happen when you came back into the country when apartheid ended, were there discussions around that?

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VP Yes, of course, I mean, in the military camps we used to have news briefings early hours of the morning. Being told of the developments in South Africa. And we analysed those developments. Like for instance, the first talks about talks. When ANC met some business people in Senegal, for instance. It made us also think that, are we really getting there? What is happening? So we’d discuss all those developments, you see. And then already that time Zimbabwe was already liberated. And we know that the Luthuli Detachment fought and some of them died in Zimbabwe…well, in Rhodesia at the time. When Umkhonto we Sizwe together with ZIPRA, opened fronts in Rhodesia, the Sipolilo front, and the Wankie front. That we knew that it was possible. That here were our comrades who fought in 1967/68. Some of whom are still alive. So that was a source of inspiration to us. So we’d discuss all those things, looking at the objective and subjective factors at a political level, you know, as to what we needed to do to be ready for such, and looking also…you recall that the ANC struggle was based on four pillars, one of them being the international, the fourth pillar. So also we had to analyse the global politics as to what is happening, the alignment of forces, you know, the balance of forces, and all that. And then of course we knew that, look, the operation was coming down. 1989, you know, we had that battle of Cuito Cuanavale, which changed again the balance of forces. Namibia got its independence. We were still in exile at the time, in 1989, and we had our own developments amongst ourselves. I recall in 1987 in the Youth Conference in Morogoro, the late president of the ANC, OR Tambo, telling us as the young people that we might be on the negotiation table sooner than we expect. This was in 1987. So obviously. And then also they insisted formulating the Constitutional Guidelines, you see. We were starting to have discussions about the Bill of Rights, that there must be a Bill of Rights that is capable of being legally enforced for the generations of human rights, first inaudible generation of human rights. What you mentioned earlier on, the importance of the social economic rights. And without jumping the gun, these are some of the issues that for instance this court has been grappling with. So you knew that the time is coming. So we had to prepare for ourselves. Then 1989 for instance, Harare Declaration, where Comrade OR Tambo travelled, all inaudible states, trying to sell this idea that this was the type of democracy that we want. And so we sit and talk of these things amongst ourselves. And then of course it was our task to also induct the new ones who are just joining the ANC, to show them the importance of political education, what it means. And then of course we’d say that we are the last to be liberated. Perhaps there’s a reason for that, perhaps it’s meant for us to be able to learn from them, as to what can go wrong. Where we should be emphasising on in terms of creating the type of vision that we have of a new society. Ja…and then we see also corruption, you know, in some of these newly liberated countries as well. And we’d discuss about whether it’s possible to have the gains of a revolution reversed. And we always believed that, you know, the gains of a revolution can never be reversed. Of course then something else happened in Nicaragua. When the Sandinista lost, the result of not actually making sure that you defend against violent revolution. You know, you defend the democratic values that you fought so much for. And we have all those things,

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you know, the question of dignity, the question of fairness, the question of equality before the law. All those things…accountability. They are currently enshrined in our Constitution. And we can’t take those things for granted, because there was a time when we didn’t have a Bill of Rights, in the second Constitution. It’s only this Constitution that has got the Bill of Rights.

Int I also wondered, Vusi, in terms of 1990 and the unbanning of the ANC, what are your memories of that time and at what point did you come back into the country?

VP Ja…I remember…actually we did have a little bit of whiff that things that are beginning to change. Because I recall in 1989, you know, we had some discussions with…actually the Department of Legal and Constitutional Affairs of the ANC had convened a meeting in Harare where we met with white lawyers, the majority being Afrikaans speaking lawyers. And I recall people like Dennis Davis, who was there. Edwin Cameron, Hugh Corder, Gerhard Erasmus, Gerhard Lubbe, Laurie Ackermann, Marinus Weichers, and a number of other people. Where we discussed now the new legal system that we want to put in place. And it was also around the time that I think Justice Ackermann, I think had just resigned from the Bench. Remember also there’s the era of the dilemma of the moral judge, where you had judges who were beginning to doubt the laws that went forth and apply and interpret. Particularly when it came to the death penalty and all that. So you had some progressive judges who were beginning to think that, look, you know, they seem to be applying apartheid laws and apartheid, in particular the crime against humanity, so it started to sit on their conscience. And they were forced, for instance, to impose death penalty where there were no extenuating circumstances. And some of them began to question the morality of apartheid. And Judge Laurie Ackermann, who also I think was one of the first judges of the Constitutional Court, was part of those discussions. As I say, yes, we did have a whiff that things are going to change. We recall around the time also it was when PW Botha had suffered a stroke and lots of talk who was going to take over? So, it’s not everybody in the ANC who knew all those things that were happening, but some few people did have a whiff that it was going to happen. But actually when it happened, you know, that day in February (2nd February 1990), it was as if we were all taken by surprise. It was like everybody’s birthday. You were so excited, we were so happy. I remember I was in Harare at the time when it happened.

Int I wonder, Vusi, in terms of your coming back, what was that like for you, the return to South Africa after a long period actually?

VP Ja. Well, I suppose it’s very difficult to describe the feeling, I mean, you know, having left your parents, having left your siblings, having left your friends, you know, going to a place that you’d never been before other than just hearing about what was happening there and all that. Of course we’d always have

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those apprehensions, little bit of fear as to how is it like, the life in exile, life in the camps, and all that. But of course, those were soon demystified anyway. And then, you see in exile there was a community. We didn’t have anything. ANC gave us everything, gave us food, housing and all that. So we were sort of dependent on the ANC, than the time when one has got a scholarship for instance, to continue with education. So coming back, being reunited with the family, but the most satisfying thing was that we were coming back, firstly we felt justified to have embarked on the struggle, at all levels, politically, militarily, and also economically. But then also we thought of those who didn’t make it back, like my friend, Sizwe Kondile, and many other comrades that I got used to, I got to know, and my comrades I trained with who never made it back. So mixed emotions. Happy to be back but also thinking that, look, some people died for this. And then also looking at the future as to now what is it, what’s the next phase?

Int Were you deployed during the period between 1990 and ’94 to any…you know…?

VP When I came back in…I came back December ’90, when we had the first consultative conference in NASREC, I think, just before the Durban conference. I worked for a private company, 1991. A company which actually I met in Lusaka, early 1990, when I was in the Department of Legal Affairs, and Constitutional Affairs of the ANC. We had a conference on the future economy of the country, we had Southern Life going there, and inaudible Insurance. And so inaudible, because at that time we were unbanned already. So uncertain future facing us, jokingly some of us said, we are not going home, I mean, are we going to get jobs? It was obvious we knew that we can’t all be dependent on the ANC on coming back. So we were encouraged to look for jobs. So I worked for inaudible Insurance company. And actually, you know, the ANC’s first offices were in inaudible Insurance, where I also worked on coming back; we were occupying that thing from the fifth floor, downwards. And then the ANC subsequently bought the whole building where Luthuli House is now. That’s where also where I used to work. But at the same time still I was working with the ANC’s legal department but not on a full-time basis, until ’94.

Int Right. And then in 1994, with the elections, you were actually appointed as a Special Advisor.

VP That is correct.

Int I wondered whether you could talk about that appointment and what your tasks entailed?

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VP Ja. Well, even before that appointment, you know, the ANC had asked me together with other comrades to go out and study various electoral systems and laws and parliamentary systems. So, we were sent to Zimbabwe and Canada to look at their systems and all the parliamentary systems of that. Then on coming back, and then I was appointed to be the Special Advisor.

Int To the Minister of Justice?

VP Ja, to the Minister of Justice, the late Comrade Dullah Omar. I was with him from ’94 to ’97 as a Special Advisor. Basically we had to look at the transformation of the entire legal system, the restructuring, you know, of the legal system. To look at the amalgamation of the eleven Departments of Justice. But remember it was South Africa and then we had the Bantustans, and you had the self-governing territories. So we had actually eleven Departments of Justice. So one of my tasks was to assist them in ensuring that there is a proper amalgamation, we look at the uniformity of systems, you know, that. And then also to start formulating new policies. Around that time also, for instance, Comrade Dullah asked me to go to Chile, for instance, you know, to study the Truth Commission of Chile. So that’s when the whole idea then of the Truth and Reconciliation Commission came up with…ja…so, but I was part of it. And then we had a number of consultative conferences on the legal system in South Africa. Including discussions around the establishment of the NPA for instance, to look at the legal aid system, the judicare system in South Africa. To look at the lay assessor system, for magistrates, you know, in the Magistrate’s Courts for instance, where you involve members of the community. So at that time it was the formative stage when we came to the policies, the new policies that the new government had to put in place. Including of course the establishment of the Constitutional Court itself.

Int I’m very curious about that in terms of your relationship with Dullah Omar, your close working relationship, I wondered whether you could talk about that period from ’94 to ’95 when a lot of the decisions were being made around the Court. Actually from ’93 onwards. I wondered whether you could talk about how you and Dullah Omar had envisaged how the Court would come into play and why you, in particular, thought there was a need for a Constitutional Court?

VP Ja…well, obviously, you know, if for instance we were to have a new Constitution, you know, what I mentioned earlier on, Chapter Two of that Constitution, that deals with the Bill of Rights and we want to make it a justiciable Constitution. It’s inaudible Constitution. But it never had a Constitutional Court, so it was to be the first of its kind. And also the idea of moving away from Parliamentary sovereignty or supremacy, to a constitutional supremacy, then necessarily, you know, had to lead to this establishment of a court of this nature. Without being long on it, it’s just reminded by the some of the things that happened in the past, when Parliament around 1954, around

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the Harris case, turned itself into the High Court of Parliament, because Parliament was regarded then as a sovereign body, can pass any laws, and all that and all that but then inaudible a number of their sympathisers into the…but funny enough, the SCA even then…well, the Appellate Division, as it was then, struck down the legislation, said inaudible but still no Parliament masquerading as a High Court of Parliament in order to be able to do things which were then consistent with Parliamentary sovereignty. Now obviously we had to have a radical system. And if then you look at the centrality of the Constitution, and you want to make the Constitution your supreme law, then the issue that, let us have a court. Which then, if you recall, when we started, it was more or less on the same level as the Appellate Division, except that, well, you had the Chief Justice, then you had the President of the Constitutional Court, before the President became the Chief Justice of the whole country. So they’re more or less on par. So the issue was to have a tribunal or a forum that will have the final say on constitutional matters, you see? If we had to go back to the Harris case, for instance, where Parliament tried all sorts of things to remove Coloureds out of the common voters roll, and you are saying, you were moving away from that system of Parliamentary sovereignty. You had to make sure then that you’ll have a forum, a tribunal court that will have the final say on constitutional matters. You see? So the debates were quite lovely at the time about the need to create then this Constitutional Court. So, for instance, even in the preamble of the Constitution itself, the supremacy of the Constitution is mentioned there. Therefore Section 2 in the Constitution, again it affirms the supremacy of the Constitution.

Int In terms of some of the decisions…key decisions had to be made with regard to the choice of judges and the President (of the Constitutional Court), what were some of the discussions that you were privy to with the Minister…Dullah Omar?

VP Well, I must say that, you know, I never intervened as to who is likely to be…not at any formal level. But the issue was now to be the criteria used for the appointment of judges, you see. Not only for the Constitutional Court at the time, it was we were looking at the entire judiciary, you see. That’s why for instance, in the earlier years, you know, it was just a fit and proper person, who were appointed as judge. Of course, with appropriate qualifications. Which meant that we were expanding the pool from which judges could be drawn. In the past you knew that they would come from the ranks of senior counsel and that status of senior counsel was conferred by Minister of Justice, who’s the one, you know, therefore it meant that people were more sympathetic perhaps to the apartheid policies at the time. Of course there are a few exceptions. Those who, when they got to the Bench, became fearlessly independent, you know, when they got there. But generally, to be made a judge during those days, one had to be seen to be sympathetic. Therefore it posed a challenge now when it came to the transformation of the judiciary. You see? So how do we make sure then that for a judiciary that is representative of all the racial groups in this country? How do we derive

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strength from what diversity? That’s why, for instance, we had a person like Justice Mokgoro, Yvonne, who was drawn from the academia. Where you had people who were not necessarily even practising attorneys…advocates for instance. So the pool was expanded to include law teachers, to include attorneys. So I was involved at that broader level of discussions as to perhaps who should be…I mean, our first new President, he was never a judge, Arthur Chaskalson.

Int Sure. In terms of the decision to appoint Arthur Chaskalson, what were the criteria used?

VP Well, I suppose…I don’t know the criteria, I must just say, but looking at the values enshrined in our Constitution, and wanting to transform, not just the judiciary but to transform society, we needed to have the type of Constitution that we have, which is transformative in nature. Therefore we need then to have people whose thinking, whose values are consistent with the values of the Constitution itself. So a person like, for instance, Arthur (Chaskalson), I mean, he’d proven himself to have been a very good lawyer. Having been part of the Legal Resources Centre and a number of other teams that defended people who…the political cases that he was involved in. You had the likes of Justice Pius Langa, for instance, who had proven credentials. Not just politically but in terms of the law, because they distinguished themselves in their understanding of the law. They had a sense of justice. So, it’s that broad criteria that one can talk about. And then of course, for the first time, we had an open process, where members inaudible can nominate judges. Unheard of in the past. And then you had a body like the JSC (Judicial Service Commission) being established to actually interview. So those are the values enshrined in the Constitution, an open society where there’s transparency. So, ja, this is…it is how things unfolded at the time.

Int There was some tension over the fact that Ismail Mahomed was under the understanding that Dullah Omar would have favoured him as the President. I wondered whether you could talk about some of those tensions and if you were privy to them?

VP No, I wouldn’t know about the tensions. But knowing Comrade Dullah, I mean, he was always a fair person, open-minded, and, you know, would not have regarded the colour of the person. It’s just a question of the best man for the job. I’m not saying that the late Ismail Mahomed wasn’t, but he was an excellent judge. I mean, his judgments for instance, I mean, that’s something quoted now. Then, also when he was the Chief Justice of Namibia. And if you look at the Certification of the Constitution itself, with regard to what he had said, or linking to other matters. So these were excellent scholars but unfortunately one person had to be, you know, one…so, the late Ismail Mahomed then was the Head of the Appellate Division, and then you had

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Arthur (Chaskalson), as the President. Of course, in our court, before then, he was changed to Chief Justice.

Int Did you observe the interviews that were held by the JSC (Judicial Services Commission)? And I wondered what you thought of some of the interviews?

VP Recently or…?

Int No, for the first Bench, in 1994.

VP The interviews, no, I didn’t sit in those meetings. But of course, again, given this open process, I mean, it was quite instructive to, firstly the line of questioning and the answers that people were giving. And some of the questions were quite probing, personally also, checking whether…what role a person played during the struggle, against apartheid and the role that people played. So, ja, it was this open process that, you know…

Int What did you think of the final selection of the eleven judges?

VP (laughs) Ja…I’m not sure that I remember all of them (laughs). But I think it was a good mix. Because I remember, I think Justice Madala was part of the first eleven, and you had Arthur (Chaskalson), you had Pius Langa, you had Yvonne Mokgoro, you had Kate (O’Regan)...Kate O’Regan. You had Albie (Sachs). Ja, you see, you had Laurie Ackermann…

Int And Johann Kriegler…

VP You see, and you had Johann Kriegler, you see. Well, for me it was a balanced mix. We tried to also look at the gender issues but then of course the numbers were still quite low. You look at the racial mix, you look at the diverse backgrounds, culturally. You had a person like Judge Kriegler and Ackermann, coming from the past, and all that, had themselves to be change agents as well in terms of whether they accepted the new Constitution, you see. And we had to look also the landmark judgments that were made during that time. You’d really see that our Constitution is a transformative one and we had judges, for instance, who understood perfectly their responsibilities in terms of the Constitution and the law. And I must say that they’re fearless. I mean, for instance, look at the Makwanyane (S v Makwanyane and Another) case, the abolition of the death penalty, it’s not compatible with the right to dignity, right to life, and all those things, which was something new in terms of interpreting it. I know that one thing that Comrade Dullah used to emphasise was, the restoration of our dignity, as a people who have been oppressed for so long.

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Int You worked as Special Advisor to the Minister of Justice from ’94 to ’97, and then at some point then you were appointed in ’97, you were appointed as Deputy Director-General…

VP Responsible for Human Resources, ja.

Int And you are also credited for offering enormous support to the Constitutional Court. I know this is a difficult question to ask you but, would you perhaps talk about some of the forms of support that were important at the time for the establishment of the Court and it’s functioning?

VP Firstly, as a Special Advisor, there were two of us as Special Advisors. Also there was Enver Daniels who was a Special Advisor.

Int Enver Daniels?

VP Ja, Enver Daniels, during that time. You see, the whole concept of Special Advisors, arose from the fact that with the new Ministers getting into perhaps then not so friendly administrations in terms of the old bureaucrats who were there in the system. So the Ministers also needed to have people around them whom they confided in, and can make sure that things are right. So firstly, we had the responsibility of ensuring that things are done properly and there’s no sabotage in terms of the new law policies, but also it meant that also we had to be close also to the administration to make sure that things are done properly, don’t have all the red tapes and all that. So that’s the role that we had to play. And then in ’97, as the DDG, Human Resources now, I was responsible then for ensuring that, for instance, the Court is staffed properly, the judges had clerks, looking at judges’ secretaries. And I remember it caused some commotion at the time because the judges’ secretaries were higher than your normal secretary in the public service. So we had to fight that battle first and then fortunately we were able to win some battles. To make sure that there was proper accommodation. Remember, they started in some other building, in Braamfontein…

Int Yes, the Braampark…

VP …which was the first Court that was used. So I had to make sure then that things were done properly at the time in terms of securing the right premises, the venue, compatible with the status of the Court. And the rentals, we had to make sure that there’s sufficient money in the budget to make sure that we get good premises. I remember also the time when there was talk now of actually building a new court. And still being militant at the time, and the plans which appeared to be so ambitious and elaborate and going to cost us

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millions of rands. I said, look…I must confess that at the time I was not very sympathetic to the judges’ ideas about this Court. Because I said, how can we spend so much money, and yet we’ve got so many courts in the rural areas and in the townships that are actually dilapidated. And you’re going to put in so much money into one court (laughs). I must say that we had those live debates and all that, you see. But I suppose with time I began to really the significance of having a Court of this nature and to have the status it has. And ja…and this place itself. Actually, because I was a bit resisting on the monies, then the City of Johannesburg also got involved in terms of ensuring that money is going to be pumped in and all that. Because I felt that given our budget at the time, this was not right.

Int I’m also wondering, in terms of the judges, whom did you work closely with?

VP Well, I worked closely with Arthur (Chaskalson), I mean, as the person who was the Head. And then worked closely with Pius (Langa) at the time. Worked with Kate (O’Regan), because we are (means he was at the time) both trustees of the Constitutional Trust, when it was set up. Ja…those were the judges then at the time that I really was close to…

Int And then when you became Director-General you continued this relationship with the Constitutional Court under the different Ministers of Justice, and I wondered whether you could talk about some of the challenges of working with different Ministers of Justice and the understanding of the independence of the Constitutional Court?

VP Ja. Well, I must say that Dullah Omar had a perfect understanding. He was a brilliant lawyer himself and was involved in UDF and an activist lawyer who had all these values. He was steeped in those values. He had the greatest admiration for the court and its independence and fought very hard to make sure that the Court is properly staffed and all that. After Comrade Dullah (Omar), I worked with Comrade (Penuell) Maduna. Also, he worked well with the Court. But also it was a period when also there were some challenges of some kind that were going through. Because I remember at some stage, but purely when it came to Allan Boesak’s pardon. I was the DG (Director- General) of Justice at the time, and there was this request for a pardon. And as these lawyers in the department and bureaucrats, we felt that Reverend (Allan) Boesak does not meet the requirements. In the sense that he was still protesting his innocence. Now you don’t pardon a person who believes that he’s innocent. He didn’t meet the…but of course at a political level it was desirable to have granted a pardon and all that. Remember when the matter came to us we discussed it and rejected it, we didn’t recommend his pardoning. Penuell (Maduna) was in trouble with Cabinet. You are the Minister of Justice, make sure that it happens. “You tell those bureaucrats. inaudible long discussions, inaudible to say that, look, Vusi, I don’t care what you guys say, the man must get pardoned.”

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Int That must have been quite hard for you because it sounds to me like you were trying to follow the legal letter of the law?

VP Well, of course. I had no other option. Given the responsibility that I had at the time. Ja…and then of course he (reference to Dr. Penuell Maduna) was supportive of the judges. I must say all three Ministers were supportive of the judges.

Int Brigitte Mabandla?

VP She was supportive but also perhaps her understanding might not be what is generally understood to be in terms perhaps of the relationship, particularly when it came to matters of the NPA, for instance, and the Constitution, you see. But also I remember, also there’s a time around the Rules Board as well, as to where the functioning should lie. I remember at the time, I think Johnny de Lange was the Deputy then and this Brigitte (Mabandla) felt that the department must be fully in charge and control the Rules Board. I must say that at the time I also did support that position, and I remember we had a big discussion with Arthur (Chaskalson) here, and former Chief Justice Sandile Ngcobo, about where this function should lie, should reside. And at the time both Arthur (Chaskalson) and Sandile (Ngcobo) felt very, very strongly that this is where it belonged.

Int Who won that battle?

VP (laughs) I don’t know because it was in the middle of that when…but anyway, finally, one of the things that for instance we kept on doing was to compare ourselves with other established jurisdictions. And as a DG (Director-General) of Justice I always had a problem with the budget. Firstly, it was small, given the enormity of the task that we had and our mandate, you see. And also secondly, I felt that there must be a budget for courts separate from the other functions of the department. As to how this was going to be done I couldn’t really say how, but in terms of the principle and then we can work out things later. Because I remember in Zambia, for instance, I mean, you have got a department responsible for court administration, as separate from, though you still have one Minister of Justice. But once Parliament appropriates funds for the courts, then those funds cannot be touched. But the problem then was that when we have got shortages here and there, as the DG (Director- General) of Justice I can take money from there and the Minister would approve of that. So…and then you had now problems now with the budget for the courts. I’m happy now, for instance, that things have changed, for instance. Where there’s an establishment now of a separate office.

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Int The OCJ (Office of the Chief Justice)…

VP Ja. Which I really think is…

Int The way to go…

VP A good development.

Int Right. There’s a wonderful video of you and Johann Kriegler, going on a tour of the Court. I know this Court building cost a lot, and I’m sure that at times you must have been overwhelmed (laughs).

VP (laughs) I know…

Int But when it was finally done, and you did a tour, what did you think?

VP Oh, it was beautiful. You know what I liked also is the simplicity. It has got the right décor…you know, it’s simple, it’s accessible. And the fact that it’s on a Constitutional Hill which is so historic in terms of our history in this country, next to the Women’s Jail, and part of it is connected to that, it’s a marvellous thing to have happened.

Int The move from Braampark to here…

VP And then also…

Int Sure, sorry.

VP …with Albie (Sachs) and his art, works of art, and he was very, very, very passionate about all the collections from all over the world. And it’s just beautiful. Also I didn’t forgotten about the tour, but (laughs)…but also the time when I felt that I want to say, you see, this is what you really wanted and now (laughs). Okay.

Int There’s a sense that the move from Braampark to here in 2004, how involved were you then?

VP By the way it was two thousand and…

Int Four..

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VP Was it not a little bit earlier? 2004.

Int Had you left?

VP 2004, I was still the DG (Director-General) of Justice. Ja, I was very much involved at the time. And I remember also I had to…we used to have one director, “Snor” (Danie) du Plessis, who retired.

Int Mr Danie du Plessis, yes.

VP “Snor”, (laughs) this moustache. And he had left this department but he was one of those hard working officials that was in the department. And I think he was the first Director of the Constitutional Court. And, ja, I was involved, it was an appointment, and he did a good job. He’s a hard working man, knew every corner. And then another person who played a critical role actually was also Mr Labuschagne.

Int Who was he?

VP He was the Head of ministerial services. From Dullah (Omar) to (Penuell) Maduna to Mrs Brigitte (Mabandla). I think Mrs Brigitte (Mabandla) then later took him (Mr. Labuschagne) out of office. But he’s late now. He was a hard worker. I would get into the office at times thinking that I’m early, I’ll get in about six, and he is there late at night, nine o’clock, ten o’clock, he’s still in the office. He was one of those hard working workers…

Int And what was his role in relation to the court?

VP He knew everything. (laughs) He had been there with (James Thomas – ‘Jimmy’) Kruger, all the former Ministers of Justice. And he was just a bureaucrat. And he was very good in terms of legal research. He knew almost all judges. We’d wake up ‘Lappies’ any time. You must ask Arthur (Chaskalson) or any of the judges about ‘Lappies’, Oom Lappies, they’d know him (laughs). So ja…

Int Vusi, when I hear about the early days of the Court, it sounds as if everything went smoothly and it sounds that people were all very supportive. But in your estimation, what were some of the difficulties and challenges then?

VP Even in so far as the work of the Court?

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Int The work of the Court, the setting up of the Court, the structure…budget was a huge issue for you…?

VP Ja, that was…I mean, again, as I say, the question of the Rules Board, where it should lie, the secretariat basically. The secretariat of the Rules Board. I mean, those did create some tensions, without doubt. Also the question of the role to be played by the Chief Justice. Whether it extended to, for instance, looking at the work of the Magistrate’s Court, what would be the role in terms of looking at the case backlogs, for instance. Also the concerns about the hours that the court sat, and the salaries, and all that, whether there was mutual agreement. I mean, those were basically political debates and the Ministers were involved in such discussions. But then also there was a forum which started during the time of Dullah (Omar), where we’d meet Heads of Courts. The JPs (Judge Presidents), the Chief Justice, at the time, to discuss issues affecting courts. Of course the question of the salaries had also been a burning question, you see. And the system that was used in the determination of salaries, of course judges felt that it’s embarrassing to be talking about salaries. Ja…but in terms of the actual work of the Court itself, I think the Court, as far as I’m concerned, you know, in those early years, was operating smoothly. As I said, with the support of Dullah (Omar), (Penuell) Maduna. And then we had started then having people being critical now when the Court passed judgments that went against the Executive. That’s when we started having those tensions now between the Executive and the Judiciary…

Int At what point did that start….? Which cases in particular?

VP I won’t be able…because I…well, I didn’t actually look at that before coming here. But for instance, you can even look at the question of HIV, for instance.

Int TAC (Minister of Health and Others v Treatment Action Campaign and Others) case…

VP Whether the Court was not being too activist in its judgments, to the extent of getting into policy making and all that. There were those concerns. Of course, you know, that landmark judgment, Grootboom (Government of the Republic of South Africa and Others v Grootboom and Others), on issues of housing. Recently perhaps one can look at the Glenister (Glenister v President of the Republic of South Africa and Others) judgment, for instance, when it comes to the Scorpions. So…but this I think came in later. Not in its formative stages, for instance. On the fifteen years that we are covering…

Int Till 2009?

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VP I’ll say more or less, if there were tensions they were necessary tensions between the Executive and the judiciary about the role of the Court. But again, with sufficient and correct understanding of the role of the Constitutional Court, and the supremacy of the Constitution, we shouldn’t be having those things, because I think, even when the Constitutional Court does seem to be more activist, it’s still cautious so that it does not cross the line. But then our Constitution itself requires it to be more activist a little bit in terms of ensuring that there is a realisation of all those rights that are enshrined in our Constitution. Given the fact that the Constitutional Court has got constitutional powers in terms of the Constitution to examine the conduct of the executive, from the President to any other administrator. Those are the powers that the Constitution gives to the court. So it would be wrong when it’s exercising those powers then people start saying that it’s trying to usurp the policy making powers of the executive. Some of the debates that are taking place, for instance, I mean, are disturbing, I must say. But again, the issue is that for as long as the Constitutional Court judges stick to the law and the Constitution, as they are wont to, there shouldn’t be any problem. But the issue is that it’s the final arbiter. You might not like some of the decisions but you’ve got to live with them. Because at the end of the day on all constitutional matters, the buck stops here. If a decision is taken here, whether it’s a split decision or not, but if that’s the majority decision, all organs of state are not only expected not to obstruct the workings of the Constitution but they’re actually enjoined to support the work of the court.

Int Vusi, in terms of your own situation, once you left in 2005, you went on to the NPA (National Prosecuting Authority), is that right?

VP Ja, that’s correct.

Int And then subsequently?

VP Well, I was with NPA (National Prosecuting Authority) until my suspension in 2007, and which matter was finalised in 2009 in an out of court settlement, and now I’m currently a Director of Forensics in SizweNtsalubaGobodo.

Int Right, I know, (laughs) long name. In your observations of the Court, what are some of your fears and concerns for the future of the Constitutional Court?

VP There are no obvious fears, I would say. Despite perhaps whatever tensions that might exist. I don’t think anybody should fear, but also must be vigilant to make sure that the rights in our Constitution are not eroded. And that once people…of course people have got a right to criticise whatever judgment, but it should not be done at the expense of the personal integrity of the judges as to who was making this decision, and all that. Legally, you know, people will have different interpretations of the law or how the law should be applied and

19

all that. But at the end of the day, you know…fortunately lower courts system has got its own self-correcting way. If you want to appeal a decision of the lower court you appeal to the Higher Court. But then somewhere the buck has to stop. And in this case, it stops with this Court.

Int I’m wondering, Vusi, in terms of what you think about the transition to democracy and the role of the Constitutional Court; what are the challenges that were then when the Court started and what are the challenges now? What are some of the challenges that remain?

VP Ja…you see, the mandate of this Court is to ensure that things are done within the four corners of our Constitution. Any conduct or law that is inconsistent with it, the court has got to intervene and make a ruling on those matters. And where it clearly in a matter, or conduct, or law is inconsistent, then it has to be ruled unconstitutional, therefore invalid, of no force and effect. That will always remain a challenge because then…people then will…politicians and other people, even unions, you know, always want a judgment in their favour all the time. When the court gives a judgment that’s against you, you can’t call it reactionary or counter-revolutionary, you see? When it makes a judgment in your favour all of a sudden it’s progressive. It can’t be like that. So I’m saying, those challenges were there at the beginning and will continue to be there. And it’s how we are able then as a matured and advanced society, are able to manage then those tensions. And each organ should be able then to carry out its mandate in accordance of the law. The Executive have got functions of making policy and executing that policy. Parliament to make laws and to make the Executive accountable as well. The courts, what did they do? They interpret and apply the law as they see it. If you are not happy, you appeal against the judgment. But then the buck stops with the Constitutional Court. And I must say that, I mean, we have had very good appointments to this Court. Except the last appointment had its own controversies. But generally we have had…ja, people have been happy.

Int Have you kept a close eye on the Court since you’ve left as DG (Director- General)?

VP Yes, yes, yes, yes, I’ve kept in touch with the people who work here. Some of them are the clerks for the various judges. Ja, I mean, there’s no way one cannot keep in touch with this important and critical institution of state.

Int I wondered, in terms of judgments, have you kept a close eye on judgments and some of the key issues that have been discussed in the past fifteen years?

VP Ja.

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Int What are some of the judgments that you feel have really had a huge social impact on South African society?

VP Ja, well, firstly, the Makwanyane ((S v Makwanyane and Another), which I’ve already mentioned, the death penalty. Your Grootboom (Government of the Republic of South Africa and Others v Grootboom and Others) [case. The Certification of the Constitution ((Certification of the Constitution of the Republic of South Africa) itself, I mean, that’s a very good judgment, which people must really read to have a proper understanding of where things stand. And then, you see, at the beginning, you recall that as part of our evolving new jurisprudence in this country, we had the establishment of the Asset Forfeiture Unit, following the Prevention of Organised Crime Act. There were some judgments there which are very instructive in terms of understanding of issues on onus, on the burden of proof, and all that. Which I felt actually contributed largely in the fight against crime. It’s not just only on the question of socio-economic rights. We’ve had judgments around schools on education, for instance, which are landmark judgments. On health issues, for instance. HIV, AIDS (reference here to Minister of Health and Others v Treatment Action Campaign and Others) matters. I mean, these are landmark judgments that have been made. And of course I know also it was a split decision on the Glenister (Glenister v President of the Republic of South Africa and Others) matter that found the Hawks not to be sufficiently independent, which I think it’s also a judgment that seeks to contribute in the fight against crime. Ja, so I think the Court has come up with a number of judgments that are worthy of mention.

Int In terms of socio-economic rights, do you think the Court has played sufficient attention to the needs of socio-economic rights in this country?

VP Ja, I suppose that’s where you always have a tension between government…between the Executive and the Court. Because the question of the access to these rights, right to education, health, to housing. And I think the court has been fair enough, again, consistent with the Constitution, that at least there must be a progressive realisation of these rights. And the Court has been fair to the executive because it will give them time to change laws, which might be seen to be inconsistent. It takes into account also the question of resources that we didn’t always have the resources. So when the Court makes those judgments, it gives government time to really change the laws, putting new laws in place, put certain programs in place, that are aimed at improving the lives of our people. Issues, for instance, of evictions, on the question of housing. We have had landmark judgments. Can’t just throw people into the streets without providing alternative accommodation. Some people might criticise that judgment, you know, as perhaps going too far, you see. But again, if we are to be a caring society, again, if you want to resort to what we have in our preamble of the Constitution, talking of a better life for all,

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and about the full potential of individuals, the dignity, and all those things, the Court has got to pronounce on those matters without any fear.

Int Vusi, in your estimation, what do you think have been the greatest achievements of the Court?

VP Its constitutionalism (laughs).

Int Indeed…

VP No, really to have it engrained in us. Progressive constitutionalism. I also belong to CASAC, the Council for the Advancement of the South African Constitution. And it’s in inaudible the fact that inaudible the Constitution. But people tend to say, but, you know, our Constitution gives more rights to criminals. I want anybody to show me where the Constitution gives criminals more rights.

Int When was CASAC formed?

VP CASAC was formed in 2010.

Int Right, so it’s fairly new.

VP Ja.

Int And the premise was to safeguard this Constitution?

VP Well, to safeguard would give an impression that we just wanted to defend it and make it static. We chose the name carefully, the Advancement of the South African Constitution, because we believe that if needs be it can be amended. But amending the Constitution should not be an easy matter. But then there are certain core values in our Constitution that, for instance, at least we would believe that should be there all the time. Like your right to life, right to dignity, some of those civil and political rights that we have there, and socio-economic rights. But of course we see it as a living document. We are not saying that it is untouchable, but it has to be a valid cause if there is to be an amendment to the Constitution, it should not be taken lightly. So obviously when we speak of a constitutional democracy, we have got to salute our Constitution and this Court, because it’s there to safeguard our constitutional democracy. So for me, this is what this Court is all about, human dignity and freedom.

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Int Vusi, I’ve asked you so many questions, I’m wondering whether there’s something I’ve neglected to ask you which you’d like included in your oral history?

VP Well, I don’t think so (laughs). I’ve really enjoyed talking to you.

Int Oh, good. I wondered if you’d end the interview, if you could say a few words about Dullah Omar.

VP He was a wonderful man. He was a hard worker. He had a deep sense of justice. He believed in human dignity for all people. He was a humble man. He would mix with anybody. I remember my first day at work, I got home at twelve midnight (laughter). And then we were working (laughs). He was a wonderful man. Yes, wonderful.

Int What do you think… I know you can’t speak for him, but what do you think working close to him, was his vision for the Constitutional Court?

VP I think he would have been happy, I mean, to still see the Court functioning as it does and seeing the quality of its judgments. I mean, this Court has contributed to international jurisprudence. I mean, its judgments are cited all over the world. People come here and learn, and our judges also, they go out to other jurisdictions and learn. So it’s the question of constant development and education and influencing global jurisprudence, in terms of the work of this court. And I think he’d be happy.

Int Vusi, it was a pleasure to meet you, and thank you so much.

VP Thank you very much, it’s been a pleasure.

23 Collection Number: AG3368

CONSTITUTIONAL COURT TRUST ORAL HISTORY PROJECT

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