/ 14 October 2008

Judging the class of 1994

On October 14, 13 years ago in an office park across the road from the notorious Number 4 Prison in Braamfontein, a group of jurists gathered for the opening of South Africa’s first Constitutional Court.

The 11 pioneers, sporting fluttering green robes which they had designed themselves, watched as the country’s first post-apartheid president, Nelson Mandela, unveiled a plaque showing the new court’s logo symbolising the simple yet powerful African practice of ”justice under a tree” — the Kgotla.

The group had assembled for the first time in October 1994. Arthur Chaskalson, a prominent human rights lawyer, was the man charged with leading it.

Chaskalson, with his first colleagues, the high court judges Laurie Ackerman, Tholakele Madala, Richard Goldstone and Ismail Mahomed, drew up a four-page agenda that was to serve as the court’s DNA.

They were joined by others, including Kate O’Regan, who at 36 was the youngest of the new judges.

She remembers: ”I got a call from Judge Chaskalson and we had a meeting where we talked about the rules of court, the first cases, what our titles were going to be and what our robes would look like.”

The agenda included the new building’s design and décor, which were assigned to judges Yvonne Mokgoro and Albie Sachs to oversee.

Judge Madala was given the task of making sure the robes were designed in accordance with the spirit of the new institution. An institution that had been charged with steering the country away from its hideous past and pushing it towards a civil rights-driven jurisprudence.

Janina Masojada, Andrew Makin and Paul Wygers designed the new court building, which today stands as the architectural centrepiece and heart of the city precinct called Constitution Hill.

With the inclusion of Pius Langa, Johan Kriegler and John Didcott, the bench of 11 good men and women was complete.

The founding mothers and fathers rolled up their sleeves and set to work to realise the dreams captured by the new supreme laws of the land.

Collectively the judges did not disappoint or shy away from matching the spirit of the new democracy with the letter of the law. In their second judgement they declared that the death penalty — a sticking point for many at the time — had no place in the new South Africa envisaged by the Constitution.

The group went on to make other landmark rulings, recognising same-sex marriages and, in the Grootboom case, insisting that the government deliver on the right of all South Africans to have a roof over their heads.

At the heart of the new court’s philosophy stood the principle of transformative constitutionalism — using the power of the court to transform the lives of ordinary people.

Over the years some of the judges of this pioneering group completed their terms: judges Kriegler, Goldstone, Ackerman and former chief justice Chaskalson retired; judges Mahomed and Didcott died while serving.

In the biggest single shift in the composition of the court, the last of the founding judges are set to leave next year, starting with Judge Madala. This comes at a time when the judiciary faces its biggest political challenge, with some in its ranks being accused of misconduct and carrying out a ”counter-revolutionary” agenda.

In a series of articles in the coming months we will publish interviews with the class of 1994, covering some of the highs and lows of their careers at the court and the legacy they will leave South Africa when they depart.