Albie Sachs was fleetingly in Britain last week, mainly to tell the story behind his 2007 judgment not to send a woman to prison because it would infringe the human rights of her three children.
Even by the standards of a judge responsible for some daring legal decisions, including the ruling that it is unconstitutional to limit marriage to a man and a woman, the case of S versus M, now being cited in courts worldwide, is remarkable.
‘Judges are the storytellers of the 21st century,†said 74-year-old Sachs, who told an international audience of human rights lawyers in Edinburgh that the first mindset that needed to be changed in the historic case was his own.
Initially, he had intended to throw out an appeal on behalf of Mrs M, facing four years in jail for up to 40 counts of credit card fraud committed while she was under a suspended sentence.
‘I said: ‘This doesn’t raise a constitutional question. She simply wants to avoid going to jail. She doesn’t make out a case and her prospects of success are zero.’â€
It was a female colleague who insisted that the case be heard, arguing that the human rights of the accused woman’s children were not being looked at separately.
‘She said: ‘Mrs M has three teenage children. She lives in an area that we politely call fragile, an area of gangs, drug-peddling and a fair amount of violence. The indications are that she is a good mother, and the magistrate gave no attention to the children’s interests.’
‘I started to see [the children] … as three threatened, worrying, precarious, conflicted young boys who had a claim on the court.â€
Although three judges dissented from the majority verdict, the precedent was set in South Africa that — at least in borderline cases — primary caregivers of children should not be sent to jail. And if the court decided to jail a primary caregiver, it had to take some responsibility for what happens to the children.
A QC (Queen’s Counsel) at Sachs’s lecture — his first outside South Africa — said he had cited S versus M in an Edinburgh court, in a case of two children facing deportation after nine years because their mother, a Jamaican, was arrested for drug dealing.
Sachs subsequently discovered that similar ideas were being framed in Scotland in a report by the then children’s commissioner, Kathleen Marshall.
‘This was astonishing,†Sachs told the audience. ‘In a totally different legal system … a conclusion was being reached that is almost identical. It showed that the time has come for new ways of thinking.â€
Sachs said that South Africa’s courts are also taking a new approach to dealing with young offenders. ‘We use as much diversion as possible from the criminal justice system. We try to use the family and the community. We try to find ways of helping them to live together in the same neighbourhood, and we use apology and reparation and reconnection, rather than institutionalising and isolating the offender from the community and placing the offender with other offenders in a youth culture of marginalisation and anger.â€
For Sachs, forums such as the Constitutional Court are key to liberal democracy. ‘I see the role of judges in the world of diversity and conflict as striving for the protection of human dignity. The court is very, very important in terms of the basic norms, standards and values of the society, which continually evolve and develop.â€
Sachs — as ANC veteran who lost an arm and an eye to a South African car bomb in Maputo in 1988 — is frustrated by the negative perceptions of post-apartheid South Africa’s achievement. He hopes the 2010 World Cup, whose logo he helped to choose, will provide an opportunity for visitors to see a country that has ‘tremendous energy and enthusiasmâ€.
‘We still have huge problems associated with poverty, unemployment and inequality, related to the racist past, and we have pressure from the millions of refugees from problems in other African countries.
‘But our democracy is well entrenched. We have regular elections that are manifestly free and fair. We have a lively press and a strong civil society. Something like 10-million people have moved from shacks into brick houses at no cost to themselves. Electricity is becoming more accessible. We are confronting our problems and trying to find peaceful solutions.â€
Sachs will soon bang the gavel for the last time. He says he does not use ‘the R word†— retirement — but court ends for him at midnight on October 11.
After that, he wants to concentrate on giving ‘as much daddy as he can†to his two-year-old son Oliver — named after Oliver Tambo — by his second wife, architect Vanessa September, 30 years his junior. He also hopes to make a feature film.
He has just released The Strange Alchemy of Life and Law, the latest in a series of autobiographical books. In a chapter called ‘The Judge Who Criedâ€, Sachs reveals that he found himself in tears after ruling that South African Airways could not discriminate against an air steward with HIV.
‘It was not just because of the impact of HIV on our country,†he wrote. ‘The tears had come because of an overwhelming sense of pride at being a member of a court that protected fundamental rights and secured dignity for all.†—