2018 Making the road by walking: The evolution of the South African Constitution Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication. For more information on PULP, see www.pulp.up.ac.za Printed and bound by: BusinessPrint, Pretoria To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 86 610 6668 [email protected] www.pulp.up.ac.za Cover: Kirsten Cosser Yolanda Booyzen, Centre for Human Rights, University of Pretoria Photo credit: The Constitutional Court website – www.constitutionalcourt.org.za ISBN: 978-1-920538-75-0 © 2018 For Nelson Rolihlala Mandela, who walked long with us and whose walk has not yet ended TABLE OF CONTENTS Foreword ix Contributors xi Introduction 1 1 Introduction 1 1.1 Making the road by walking 1 1.2 The composition of the first Bench 3 1.3 The evolution of the South African Constitution 6 1.4 Social justice 8 1.5 Constitutional interpretation and amendment 11 1.6 The limits of constitutional transformation 14 1.7 Do we really need the Constitution? 16 2 Structure of the book 18 2.1 Lourens Ackermann 19 2.2 Richard Goldstone 20 2.3 Johann Kriegler 20 2.4 Yvonne Mokgoro 21 2.5 Kate O’Regan 22 2.6 Albie Sachs 23 2.7 Thembile Skweyiya 23 2.8 Zak Yacoob 24 3 Contributors to this volume 25 Bibliography 26 The constitutionalist concept of Justice L Ackermann: 2 Evolution by revolution 1 Introduction 27 2 The human rights rEvolution 29 3 The substantive legal rEvolution 35 4The comparative rEvolution 37 5Conclusion 40 Bibliography 42 A mensch on the Bench: The place of the sacred in the 3 secular jurisprudence of Justice Richard Goldstone 1 Introduction 44 2 Richard Goldstone: A selective biography 45 3 Justice Goldstone in the eyes of the world 47 3.1 Apartheid-era judge 47 3.2 International judge 52 3.3 Constitutional Court judge 57 4 Justice Goldstone’s view of his life and work 60 4.1 Apartheid-era judge 61 4.2 International judge 63 4.3 Constitutional Court judge 65 5 Social justice and Judaism 67 6Conclusion 69 Bibliography 70 v The advocate, peacemaker, judge and activist: 4 A chronicle on the contributions of Justice Johann Kriegler to South African constitutional jurisprudence 1Introduction 71 2 The advocate, peacemaker, judge and activist: A select biography 73 3 What others have said about Justice Kriegler 74 4 In Justice Kriegler’s own words 76 5 Select themes 78 5.1 The Constitution as a transformative document 78 5.2 Role of the courts in the transformation process 79 5.3 Demographic transformation and the judiciary 81 5.4 Separation of powers 84 5.5 Independence and accountability of the judiciary 87 5.6 Equality and dignity 88 5.7 Horizontal application of the Bill of Rights 92 5.8 Reconciliation of criminal procedure with the Bill of Rights 94 5.9 Use of comparative international and regional norms, jurisprudence and practice 96 6 Reflections on Kriegler’s interpretive approach and contribution to our understanding of the Constitution 99 7Conclusion 100 Bibliography 101 Breaking the chains of discrimination and forging 5 new bonds: The extraordinary journey of Justice Yvonne Mokgoro 1Introduction 102 2 Yvonne Mokgoro’s background and context: From childhood to judge 103 2.1 Activism 105 2.2 Impact of apartheid on Justice Mokgoro’s life 106 2.3 Customary law and gender 107 3 Ubuntu on the Bench 107 3.1 Makwanyane: Not in my name 109 3.2 Beyond Makwanyane: A narrative about reconciling care and justice 112 3.3 Some critical and cautionary notes 116 3.4 A legacy in the making: Mind the gap 119 4 Life after the Bench 120 4.1 A public voice in defence of the Constitution and its values 122 5 Concluding observations about the dignity of ubuntu 123 Bibliography 125 vi Justice O’Regan: Finding the aristotelian golden 6 ‘middle way’ 1 Introduction 126 2 A select biography 128 3 The 3Rs of the Constitution 129 3.1 Respect, responsibility and rights 129 3.2 Capacity and capabilities 132 3.3 Responsibility, reasonableness and deference 134 3.4 Responsibility and pragmatism 135 4 A ‘progressive jurisprudence’ of SERs and their ‘progressive realisation’ 136 4.1 Deprivation disables democracy 136 4.2 Principle, prudence, patience and pragmatism 138 4.3 Power and principles 140 5 Text and context 140 6Separation of powers 141 6.1 The first constraint: Legality and the rule of law 144 6.2 The second constraint: Rationality or the ‘some rhyme or reason’ rule 145 6.3 The third constraint: The Bill of Rights 146 7Conclusion 151 Bibliography 154 Infusing the Constitution with ‘an ethic of care’: 7 The humane jurisprudence of Justice Albie Sachs 1 Introduction 155 2 Background: The stories of Justice Albie Sachs 158 3 Understanding Sachs’s contribution to the evolution of the Constitution 162 3.1 In the beginning: Humanity and incertitude 162 3.2 The value of an individual life 165 3.3 Irene Grootboom and her struggle for shelter 167 4 Discussion and themes 171 4.1 Storytelling, ubuntu and care 171 4.2 Reconciliation and the restoration of balance 174 5 Persistent love of the Constitution 177 6Conclusion 180 Bibliography 182 The functional constitutionalism of Justice Thembile 8 Skweyiya 1 Introduction 184 2 Who was Justice Thembile Skweyiya? 186 3 Skweyiya’s jurisprudence and its thematic considerations 190 3.1 Child-related judgments illustrating Skweyiya’s constitutional commitment 194 4 The influence of African law on Skweyiya’s legal sensibilities 198 5Conclusion 203 Bibliography 205 vii Transformation as constitutional imperative: 9 Justice Zak Yacoob and the making of a civil practice 1Introduction 206 2 The biographical beginnings of Justice Zak Yacoob 209 3 The idea of the law and becoming constitutional 212 4 Views on the Constitution 215 5 Working in the Court and a humane approach 216 5.1 Subjectivity 217 5.2 Corruption, Nkandla and patriotic criticism 219 5.3 Strengths and failures of the Constitutional Court 220 5.4 Constitutional endings, civil society and retirement 220 6 Beyond a distributive paradigm: Yacoob’s jurisprudence and the limits of social justice 221 7Conclusions 224 Bibliography 227 viii FOREWORD When Reason seemed the most to assert her rights, When most intent on making of herself A prime Enchantress – … But in the very world, which is the world Of all of us, – the place where in the end We find our happiness, or not at all! William Wordsworth, ‘The French Revolution as it appeared to enthusiasts at its commencement’ I evoke the memory of William Wordsworth, often characterised as a poet of romance and love and beauty and of nature, in this one of his most political of poems. It is a poem that is as much a meditation and a reflection on the French Revolution as it was a political statement. Wordsworth had become an ardent advocate of the French Revolution (1789), and, notably in a letter to the Bishop of Llandaff, he took issue with the attack on the French Revolution. He makes the point that ‘Equality, without which liberty cannot exist, is to be met with in perfection in that state in which no distinctions are admitted but such as are evidently for their object the general good’ (Wordsworth’s Political Writings). Wordsworth’s youthful enthusiasm for the French Revolution must have been alarming to the establishment that had become accustomed to the soft revolution of the Magna Carta and its 1689 Bill of Rights. For Wordsworth and other emerging democrats the lure of France was irresistible, and the call to change the human condition was to affect the quality of life in the British Isles. In this timely study of our Constitution and its application, in law and through the stories of men and women whose minds form and shape its practical application, we have depicted for us just what Wordsworth referred to as the ‘Prime Enchantress’, one that gives confidence to South Africans, assures them about their rights, protects them against mis- governance and the arbitrary use of public power, and regulates relations between citizens. In 21 years since South Africa was established as a democratic constitutional state South Africans may be excused for having such a romantic relationship with their Constitution. That is so because to those to whom apartheid remains a living memory, the Constitution offered a lifetime of bliss, a relationship with the state characterized by checks and balances, and relations among citizens regulated by law and the Bill of Rights. Twenty-one long years on, however, South Africans are waking up to the perceived limitations of their Constitution and the shortcomings of their democracy. It has been a rude awakening from complacency and dependence on the righteousness and goodwill of those to whom citizens have outsourced their rights. Failure to question and revolt has meant that the instrument of rights has become blunted. But there is another challenge that we face. For some reason we have come to understand a merely ix transactional view of our Constitution. The Constitution is of value only if and to the extent that we get what we want from it, that it facilitates our demand for service delivery.