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Dennis Davis: COMMENT
07 Dec 2012 11:11
Arthur Chaskalson defended human rights throughout his career and was a critical architect of the Constitution. (Delwyn Verasamy, M&G)
After his retirement as chief justice, Arthur Chaskalson would annually accept an invitation from Students for Law and Social Justice to participate in a conference held in Onrus in the Western Cape. Here, he would engage with his potential successors: progressive, committed and talented law students from all over South Africa, reflecting the full demographic pattern of the country.
One cold Western Cape night, the students had asked Chaskalson to participate in a discussion concerning the potential of law to effect social change.
The debate took place around a campfire.
Quietly, Chaskalson responded. He agreed with the student, almost 60 years his junior, that far too much still had to be done to realise the rights enjoyed by South Africans on paper, but unlike the pre-democratic era, she and he could now discuss these questions freely in public and strategise about how to effect substantive change.
As I watched, I wondered whether any chief justice in the world would have engaged with students in this way. The dignity and seriousness with which Chaskalson debated with that student personified an essence of the man.
Chaskalson was a person of fierce ambition, but not for himself; it was to build a country that implemented the vision of the Constitution that he had played so important a role in forming, first as a human rights lawyer and then in the drafting of the text of the interim constitution while an advisor to the Codesa negotiations. The event I witnessed at Onrus was but a single moment in his life's commitment.
In a life so filled with distinction, it is best, within the limited scope of an obituary, to pick a few key pointers to the character and achievements of the man.
Chaskalson was a builder of institutions. A great advocate, with a distinguished commercial practice, he did what very few of the mega-silks in South African history would have contemplated: he left that practice, although not the Bar, became the first director of the Legal Resources Centre and turned it into a mighty legal mechanism in the fight for justice. He attracted among the very best of the following generation to staff the centre and together they won a string of legal victories that had a lasting impact on the social and economic structure of the country.
It was Chaskalson's superb advocacy that persuaded a reluctant appellate division to make a major finding against the pass laws in the Komani case.
A few years later, in the case of Rikhoto, a second victory followed. Again, it was a product of Chaskalson's forensic brilliance, which rendered it almost impossible for the apartheid regime to continue with the implementation of influx control, a law with a devastating effect on millions of South Africans.
The second institution he built was the Constitutional Court. When it was brand-new, the court required a leader who understood the importance of legitimate and efficient institutions, in this case a critical one in the journey towards substantive constitutional democracy.
Chaskalson brought to this new project both his rigour and his jurisprudential precision as well as his knowledge of how to establish a new institution in a short time.
From his magisterial judgment in Makwanyane, which set the parameters for the new jurisprudence, to his leadership of 10 distinguished colleagues, Chaskalson proved a magnificent steward for the transformative legal project.
There has been criticism that the court may have been overly cautious in those key first years, especially in its early equality jurisprudence (which was too individualistic), its approach to floor-crossing and its lack of any development of socioeconomic rights after its seminal decision in Grootboom.
Yet, on balance, the court under Chaskalson performed remarkably; it rapidly became the poster court for constitutional scholars the world over.
To the extent that disagreement about the contours of the court's jurisprudence will be debated for years, there can be no dispute about the manner in which Chaskalson, after retirement, became the critical voice for the progressive role of the court and the corollary thereto: the defence of the court against political assault designed to cow it.
Again, Chaskalson's intellectual and moral stature, together with his almost unique ability to reason with such devastating clarity, proved vital in the ongoing defence of the courts against unbridled attacks from politicians and ill-considered legislation.
He is mourned not only for his record of distinguished bravery, principle and forensic achievement over almost 60 years, but also for the huge loss his death leaves among those who must continue to defend the best of the constitutional enterprise to which he devoted his life. –
It was under Arthur Chaskal-son's leadership that the first Constitutional Court implemented a programme in which judges would employ young lawyers as researchers, known as "clerks". The system enables each judge to employ two clerks at a time. This provides judges with research capacity and support in the exercise of their judicial functions.
The system was also designed to train and mentor young lawyers and expose them to constitutionalism. This far-sighted vision created and will keep on creating lawyers committed to a democratic society based on human dignity, equality and freedom. The Constitutional Court Clerks' Alumni Association has more than 350 members today.
The bond between clerks and judges is woven of many threads: it is a relationship between colleagues, researcher and judge, mentor and student and, for many of us, ultimately friendship. Arthur Chaskalson was there for us when he was able to be, whether it was a birthday, a wedding, a bereavement or a call for advice.
Chaskalson's bond with his clerks was strong. Perhaps because he valued all human beings in a most profound way, he generously offered his mentorship and personal guidance to those who sought it.
Those of us privileged to have served as his clerks benefited greatly from our association with his astonishing ability, unwavering integrity, his work ethic, his passion for our country's wellbeing and his moral persuasion.
Chaskalson was a demanding taskmaster. Law requires hard work. He expected us to work very hard, as he had done throughout his life. If we did, the rewards were great.
He regarded debate as necessary to find the right answers; he took seriously any view seriously expressed. And despite his brilliance, he knew that others always had something to offer.
This was a man who took the trouble to know personally the people he worked with, not only because that builds a strong team, but because people mattered to him.
Arthur Chaskalson not only shaped our country's future, he shaped young lives.
The man who we honour as a primary architect of our democracy, we also honour as a mentor and a friend. Chaskalson wanted to see young lawyers develop their abilities and capacities and play a role in shaping democracy. Our challenge now is to live up to what he embraced and stood for.
We honour Justice Chaskalson. We also thank his family and particularly Lorraine, Matthew and Jerome, who generously shared their loved one with our nation, for which we are most grateful. – Susannah Cowen and Michael Eastman, on behalf of the Constitutional Court Clerks' Alumni Association
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