Justice Zak Yacoob is retiring from the court, but not the overarching democratic project. Niren Tolsi spoke to him.
There is an effortless charm to Constitutional Court Justice Zak Yacoob, a playfulness that, when the Mail & Guardian arrives at his chambers on Constitutional Hill in Johannesburg, quickly seduces.
This is in contrast to the no-nonsense, sometimes prickly, style that has characterised his 15 years spent on the Bench of the country's highest court, a position from which he will retire at the end of this month.
The compelling theatre that the Constitutional Court often is will be diminished without the sight of advocates bloodied by one of Yacoob's legal cuts or sharp rebukes, usually to a titter from the public gallery.
Yacoob is unapologetic, saying that, although young lawyers appearing in the court should be allowed leeway, "I do mind when experienced lawyers who have 15 to 20 years of experience, who are charging between R50 000 to R100 000 a-day, don't do their work."
Since joining the Constitutional Court in 1998, Yacoob said he had found the level of argument in that time "quite good" but sometimes "not good enough".
"I think we have to develop among advocates a culture of being honest, of being able to say so if they can't really support a submission," he said.
Intensive short-term memory
If Yacoob has exacting standards for the people appearing before him, it is because he expects the same of himself. In legal circles, he is known for his powerful recall, which, during his October 1997 interview for the Constitutional Court position, he described as "a strange kind of intensive short-term memory".
Blind from the age of 16 months as a result of meningitis, he completed a BA and then an LLB in 1972 at the blacks-only former University College on Salisbury Island in Durban before practising as an attorney and then as an advocate.
Before pulling on the green robes of the Constitutional Court, Yacoob was part of the United Democratic Front's (UDF) legal team during the Delmas treason trial from 1985 to 1988 and, among others, represented the Durban Six, made up of activists including late UDF president Archie Gumede and trade unionist Billy Nair, who had sought refuge in the British consulate in Durban in 1984.
Heavily involved in community activity, he was an executive member of the Durban Housing Action Committee and the Durban Committee of Ten. Describing the Committee of Ten, an innovative response to a government ban on gatherings of more than 10 people during a season of education boycotts and strikes in the 1980s, Yacoob said: "We had 10 people in a committee at the top, each of those people convened a committee of 10 so that you had a hundred people and each of those convened a committee of 10 so that you had a thousand and so on. We got to 100000 that year."
Contemporary South Africa is wracked by the extremes of almost daily protests on the one hand and a consumptive disengagement in terms of politics on the other. Does Yacoob believe that sort of activism and ingenuity exists today?
"I'll find out after I retire, no doubt," he said, adding that he felt that civil society had "weakened quite a lot", with activists moving into government and the judiciary.
"There is a kind of thinking that our Constitution brought about our democracy and therefore people feel they can take it easy ... My sense is that the Constitution simply created the conditions for bringing about our democracy and made it possible for us to work harder at it," said Yacoob.
Naive in the extreme
"We all have a duty to make the Constitution real … Because we have no equality at the moment, people don't have housing at the moment, there are problems of poverty, misery abounds like nothing on earth, our education system is in a mess. So to think that our Constitution has by itself brought about a true democracy, is to be naive in the extreme."
In retirement, the judge hopes to "deepen the constitutional project" by teaching constitutional law at universities including Wits, Pretoria and KwaZulu-Natal.
Yacoob is as intimate with the Constitution as longtime lovers are with each other's skin. He was part of the drafting process, serving as a member of the panel of independent experts of the Constitutional Assembly and the technical committee on the Bill of Rights as well as several other committees advising on finance, land security, administrative justice and the right to information.
This was a "different journey" from interpreting it on the Bench.
He does not believe in the idea of the intention of the makers of the Constitution. "The Constitution, once it was drafted, takes a life unto itself and, ultimately, we interpret the Constitution in the context and in the time we are in, and interpret the words in terms of what they mean today in our context."
Appointed to a Constitutional Court invigorated by the potential of a free, humane society with a progressive Constitution at its core, Yacoob, who turns 65 on March 3, inadvertently became a symbol of this fresh egalitarianism and of the possibility that accompanied it. He was black, blind, but a clever man with a conscience who had graduated to become one of the supreme arbiters of the country's values and aspirations.
Concept of reasonableness
He has sat on some of South Africa's seminal cases, including the Grootboom judgment, which enforced the state's obligation to respect socioeconomic rights. In an address at the inauguration of the Constitutional Court in 2004, Yacoob said the judgment's "exploration of the concept of reasonableness … will perhaps turn out to be a pillar upon which our future socioeconomic rights jurisprudence will rest".
For Yacoob, the Constitutional Court "has always been challenging" and the "the responsibility of writing [judgments] and the idea that every judge and every lawyer in the country is bound by what you write is a frightening one".
On being a Constitutional Court justice: "You need to be able to think, but you also need to be able to feel, to understand, to have sympathy for people … I think one needs to be a rounded human being."
The Constitutional Court has attracted controversy, including criticism by politicians for encroaching on the separation-of-powers principle when it has found against the executive or the legislature. There has also been concern about its gender representation.
On the latter, Yacoob said he was puzzled when well respected Supreme Court of Appeal Judge Mandisa Maya was overlooked by President Jacob Zuma for a Constitutional Court position in favour of Ray Zondo last year.
"I have nothing against Ray Zondo – let me make that absolutely clear – but in the context of the way things were and the need for women here, I find it impossible to comprehend why it happened, but that was a decision for the president to make."
On the criticism of the court's judgments that have included the barb "counter-revolutionaries", Yacoob said it was "quite understandable" but "as long as they obey court orders, it doesn't matter".
On a judgment he wrote last year that declared Zuma's appointment of former director of public prosecutions Menzi Simelane illegal, Yacoob noted the silence from the ANC and government. This was because "Simelane's prima facie dishonesty was so apparent that they couldn't [be critical]."
Yacoob is not nostalgic for what he is about to leave, saying he will miss "a little" the collegial atmosphere and challenges of court, from the intellectual to the human, but "I'm not the sort of guy who misses things. What is gone is gone."
Absence of women applicants raises questions
The Judicial Service Commission's shortlist of five men to be interviewed to find a replacement for outgoing Constitutional Court Justice Zak Yacoob has again raised questions about gender transformation and the perception that the process is secondary to a preordained outcome.
It is understood that one of the country's foremost female judges, the Supreme Court of Appeal's Mandisa Maya, declined nomination after being overlooked in favour of Justice Ray Zondo for a position in the court last year, despite the Constitution insisting on demographic representation in a court that currently has just two female judges out of 11 – Bess Nkabinde and Sisi Khampepe.
One legal source said that Maya's experience of last year's interview and her disillusionment with the process, which appeared to be a mere formality preceding Zondo's appointment, had dissuaded her from accepting nomination this time round.
Nokukhanya Jele of the National Association of Democratic Lawyers said that, rightly or wrongly, there was a perception within the legal fraternity that there was political manoeuvring surrounding Constitutional Court appointments.
"Sadly, there appears to be something about the interview process that appears to have dissuaded Maya. These perceptions around the JSC need to be tackled head on if they are having a direct impact on people deciding to throw their hats into the ring or not. There are several competent female judges out there and they should be availing themselves," Jele said.
Speculation that the commission might readvertise the position to encourage women to step forward was quelled this week when it announced it would be holding interviews on February 22.
The shortlisted candidates include judges Selby Baqwa, Lebotsang Bosielo and Brian Spilg and advocates Jeremy Gauntlett and Mbuyiseli Madlanga.