Skweyiya rests his case

Chantelle Benjamin

Instead of becoming a paediatrician, he chose to fight for human rights.

Judge Thembile Skweyiya boasts a career that spanned 50 years, the last 12 as a judge in the Constitutional Court, where he made key decisions around the rights of children, same sex couples and evictions, as well the media’s right to freedom of expression. 

Skweyiya, who retired in April, believes it’s the Constitution — which he assisted in drafting alongside others, like Zola Skweyiya, Albie Sachs, Kader Asmal and the first president of the Constitutional Court, Arthur Chaskalson — that holds the country together. 

“In the past we had a government that could pass any law it liked, and now we have a constitution and all the laws have to pass constitutional muster,” he said in an interview with the M&G.

He said the first people who were appointed as constitutional judges understood they had a responsibility to “build a set of jurisprudence for the country and to do it in an honest and considered way”. Of his time at the Constitutional Court he said that what he had enjoyed most was the “intellectual discussion” and the  fact that all views were considered and respected. 

“At the beginning it was very challenging, because obviously there was no guiding law, but the debates were very intensive and we all sat at a round table to show every-one was equal,” he said. 

“I can’t say there were ever any easy cases, even at the beginning. We were all aware that there was a burden on us to make sure we were true to the constitution, which I believe is essential to holding the country together.”

When the debates became particularly heated, there was always someone in the group who would come up with something amusing that would “break the ice”. 

Skweyiya believes, despite comments at his farewell by Chief Justice Mogoeng Mogoeng that a suitable candidate had yet to apply for his now-vacant position, that there are “many bright young people, hard working people, coming through the ranks”.

“I have faith in them and in our system and that we will get dedicated young people to fill vacancies in the Constitutional Court going forward.”

Asked if he considered his retirement as marking the end of an era, as has been suggested, he said:  “I suppose it is. We were the first batch of Constitutional Court judges. There was Arthur (Chaskalson) and others who I had worked with before. I had worked with him through the Legal Resources Centre, which Chaskalson had set up with Sydney (Kenridge, a leading human rights lawyer) and his wife Felicia.”

Among the first appointees were judges Chaskalson, Pius Langa, Tholie Mandala, Zak Yacoob, Albie Sachs and Tholie Mandala, all of whom have since retired. 

“It is a wonderful Constitution and one in which we are right to be extremely proud,” he said. “I am not sure, looking back, if we should have had more gradual implementation of one or two -contentious clauses, such as those that would have led to equalisation. The hard question of land and issues around land, perhaps those could have been done differently.” 

The issue of land rights remains controversial. The retired judge’s comments come as Rural Development and Land Reform minister Gugile Nkwinti published proposals that require farmers to make available half of their land for labourers who are currently working there. Affected parties have until next year April to respond. Skweyiya said in some cases “it’s only afterwards that one can see some technicalities”. 

“Perhaps provisions could have been made for some of the clauses to come into effect three or four years later,” he said. This is no reflection on the Constitution, which he said was “an excellent document, lauded world wide, and rightly so”. 

At 73, Skweyiya is looking forward to retirement: “I want to enjoy the well earned time with my family.  One has no time for your family when your home is outside Johannes-burg. As a Constitutional Court judge, unlike Cabinet, no official residences are provided for judges, which means long periods are spent living away from them.” 

It also did not help that for much of his earlier career as an advocate he had to travel all over the country to represent clients, which included being briefed by human rights -lawyer Griffiths Mxenge in the 1979 Bethal terrorism trial of the Pan Africanist Congress stalwart Zephaniah Mothopeng and others. 

As the first black African to obtain the status of “silk” (senior counsel) in 1989, he could have chosen to pursue a more lucrative career in commercial law, but opted instead to fight human rights cases and later to accept a permanent position in 2001 as a judge in the KwaZulu-Natal Division of the High Court. 

Skweyiya began practicing as an advocate in Durban after -graduating with a LLB in 1967 from the University of Natal, mainly in cases involving commercial and civil matters. 

He had already completed a Bachelor of Social Science degree in 1963, initially intending to become a doctor. By the 1980s, the bulk of his work was around human rights and cases involving civil liberties, acting as counsel in trials such as those of political activist Oscar Mpetha and Mxenge, a close friend. He also represented Sibusiso Zondo, who was tried and convicted for the 1986 bombing of the Amazimtoti shopping centre. “When human rights law came into play, there was no case that was too difficult for me, it seems. I was fortunate that people had faith in me and gave me briefs so I was always busy.”

He served as counsel in connection with a case involving Justice Minister Jeff Radebe, helping to have his Robben Island sentence shortened from 10 to 6 years. 

“It became very difficult for me personally during that period. I was all over the place,” he said. “Fortunately I had the support of my family. They understood because I came from a political family — my uncle was banned and my elder brother was banned and confined to the Western Cape. He eventually had to go to Cradock, where the family was from. I like to say that I became a lawyer and consequently a judge by default.” 

What he wanted to be was a -paediatrician, but a strong student movement at the University of Natal, and the non-white medical facility, familiarly known as Wentworth in particular, led him down another path. It was Mxenge who told the young Skweyiya: “Young man, do your LLB and then you can be a learned doctor.”

“For many years I was convinced that I would eventually return to medicine,” he said. Chief Justice Mogoeng said at Skweyiya’s farewell in April this year that he had been inspired by the outgoing judge to “soldier on, knowing that just as they made it, so will we”.

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