The Hill is alive with young justice
David Modiba used to linger for a few minutes in the judges’ chamber of the Constitutional Court after delivering their tea, to listen to snippets of debate around the large round table where they discussed their cases.
Today he is completing his articles at law firm Bowman & Gilfillan, and has joined a select group of clerks fortunate enough to have been chosen to intern at Constitution Hill.
“I didn’t understand everything that was being said then, but I knew it was important. Coming from Limpopo, I understood that their decisions meant something for the layman – the ordinary people – this was not just something on paper.”
Modiba started out as a cleaner at the court, but was soon promoted to supervisor. “I was told that if I enrolled for a job at the court I would qualify for a bursary through the justice department, so I became assistant to Monica Makgoga, who was hired to make the tea.”
Modiba had access to the library and the judgments, which he would read. He also enrolled for his LLB at Unisa.
“I would work during the day and then go to the court library and study there until about seven o’clock at night …
“I remember one day I was coming from the library late when I met Deputy Chief Justice Dikgang Moseneke and he said to me: ‘Young man’ – he liked to call me young man – ‘What are you doing in this place so late?’ and I said, I’m studying with Unisa, I’m doing my LLB.
“And he said, ‘No man, you must pass. There is no way you cannot pass while you have us, you have all these resources, the library and everything. You need to pass. Remember, I got mine when I was in jail’.
“That inspired me a lot, and I told myself, this is very true, I’m privileged to have these resources. Some of the students out there, they are studying, [but] they don’t have the resources I have.”
Moseneke, Cameron as inspirations
Modiba credits Moseneke, to whom he was eventually assigned as a Constitutional Court clerk, and Justice Edwin Cameron, for inspiring him to achieve the distinctions he got when he eventually qualified for his LLB.
“Fortunately in 2009 when I started studying, it was the very same year that Justice Cameron started working at the Constitutional Court, and being the kind of person he is, he liked to speak to people. He asked me what I was doing. When I told him I was studying law, he took an interest in how I was doing and inspired me to keep working at my studies,” Modiba remembers.
“Justice Moseneke liked his clerks to discuss cases, not just the verdict, but the arguments placed before the court. He liked to discuss how the argument presented by counsel in court might have been made better.
“He made it clear that a lawyer’s job is not to try to fool the court, but to clarify issues for the court so that a judge is sufficiently informed to make a decision.”
Modiba worked as a clerk at the Constitutional Court from January to December last year. During that time, the case that really brought home to him just how much judgments there can affect the lives of ordinary people involved the Johannesburg Traders Forum and the City of Johannesburg.
On December 5 the Constitutional Court ruled that informal traders in the Johannesburg inner city be allowed to return to the areas where they had been operating legally – with the permission of the City of Johannesburg.
They were removed during “Operation Clean Sweep”, intended to remove illegal traders. Despite reapplying through a process put in place by the city, they had not been permitted to return to their trading spots.
“I think I was moved because so many of those traders were women, and my mother was a single mother of two boys,” says Modiba. “These women had no other way of supporting their families and they were clearly desperate to be allowed to trade.”
The joy on the faces of the traders sitting in the court when Moseneke repeated the judgment for them in Setswana also made an impression on Modiba’s fellow clerk, Yvonne van Niekerk, who remembers the moment vividly. “The traders all jumped, some were crying and others were ululating in court when Justice Moseneke explained the ruling to them. Some of them had not understood when it was first read out.”
Van Niekerk had come from the Supreme Court of Appeal, working first for Justice Chris Jafta and then for Justice Mbuyiseli Madlanga at the Constitutional Court. Her term from June 2012 to December 2013 was extended by six months.
“Every judge had a different approach. Some involved their clerks a lot in the discussion and details of the cases they were working on, but clerks were involved from application to the judgment, whether it was researching material or writing memorandums.”
She recalls how daunting it was to go through the interview process to become a clerk. “There you are sitting in the waiting room with these A-type personalities all hoping to be selected,” Van Niekerk said. “And just being in the court, in the office section, was intimidating enough.”
Another clerk recalls hearing an applicant pouring out his heart to an elderly gentleman who accompanied him in the lift, only to discover later he was the judge who had been assigned to interview him as his clerk. It is not clear whether the candidate was successful.
For Van Niekerk, working among her fellow clerks was one of the special benefits of having worked at the court. “The interactions between clerks were very special, from the seminars to the heated debates the clerks would have around law cases.”
There were 24 people assigned to the Constitutional Court – some from other countries. Generally a judge has a South African and a foreign clerk assigned to them.
“There I was working in this gorgeous building, with so much history behind it – the jail and the women’s prison – to remind us daily what we were working for, surrounded by people who were committed to upholding the values of the Constitution.
“And of course, there were the Friday afternoon drinks on the roof with fellow clerks ...”
Camaraderie between clerks
Stuart Scott, who came to the court as Justice Sisi Khampepe’s clerk after having completed his master of laws at Cambridge University, agrees that the camaraderie between law clerks was special: “The court is also a peculiar opportunity to interact and build a relationship with your particular judge. It’s strange to have such a prominent figure in the legal sphere take an interest in your career and development.”
Scott reckons that the judgments “in many instances also led to significant change” in South Africa. An example was the Fourie case, where the court ordered Parliament to enact legislation that afforded equality to same-sex marriages. It culminated in the Civil Union Act.
“And the Treatment Action Campaign case, which was undoubtedly a powerful catalyst in the South African government’s ultimate decision to create the largely publicly funded Aids treatment programme,” says Scott.
Clare-Alice Vertue remembers going for her interview straight out of the University of Pretoria. “I had planned to go into child law and heard there was an option to apply to be a Constitutional clerk. I had not even realised such a position existed, but I jumped at the chance.”
She was assigned to Justice Johann van der Westhuizen from July 2012 to June 2013.
One of the law clerks she was placed with was of American-Iranian descent. “It was interesting having discussions with Justice Van der Westhuizen about the American system and how an issue would be seen in that system.
“My experience was a combination of research and heated debate. The clerks and judges all brought their own unique experience.”
Vertue’s personal joy was taking people on tours of the building, which she has a special love for. “Everything in that building has special significance, right down to the cow hides [on the judges chairs].”
She remembers Cameron stepping over children lying on the floor at the entrance to the Constitutional courtroom, copying portraits of the judges. “He stopped to admire the drawings and to chat to the kids and I remember thinking it was incredible that I was actually working there.”
Good introduction to law
Ben Winks is currently at the law firm Webber Wentzel. He served as a judge’s clerk at the Constitutional Court in 2011. He had previously worked at the University of Johannesburg, after graduating in public international law at the University of Leiden in the Netherlands.
“I saw working as a clerk as a good introduction to human rights law, in which I had an interest, but what I did not expect was the fascinating historical learning I was exposed to. It was a remarkable experience I will treasure. Getting steeped in the law of a country and the role the court played in the development of the country, ” says Winks.
“Most memorable were conversations with the judges themselves. I was intrigued by what they had seen or been exposed to during the apartheid years.”
Justice Zak Yacoob, whom Winks describes as having a wry sense of humour, and Justice Thembile Skweyiya were among those he remembers as good storytellers.
For Winks, the structure of the building mirrored the intention of the court, that all judges were equal – from the round table where they discussed cases to the setting of the judges’ chambers.
These, spread over three floors, were set out in a structure that resembled a tree, with each of the chambers at the end of the corridors resembling branches, he says.
What struck Winks was the awareness of the importance of history and the decisions made.
Encouragement of personal interest
And clerks were also encouraged to work on areas of personal interest.
“Working there one always had a sense of optimism. It was an amazing opportunity to see great constitutional law in operation,” says Winks.
Adds Scott: “In addition to all I learnt in Justice Khampepe’s chambers, it was also instructive to hear her stories about what it was like when she sat as a commissioner of the Truth and Reconciliation Commission, and her time at Harvard in the early 1980s.”
Her stories about her time during apartheid also fascinated Scott. “She told us the story of when she was doing articles: she and her friend [later also to become a Constitutional Court justice] Kate O’Regan wanted to go out to lunch together but because of apartheid the two were not allow to go to the same place and would often end up having lunch in the car instead.”
Another former clerk, Avani Singh, formerly with Webber Wentzel, has joined the Legal Resources Centre to pursue her interest in human rights issues.
Assigned to Justice Skweyiya in 2010, Singh enjoyed the interactive nature of her experience at the court.
“Judges were very happy to get clerks involved and have discussions. It is an experience any young lawyer should have, even if constitutional law is not a direction that person is going in. Sitting in front, listening to brilliant counsel arguing on their feet, is something that cannot be described.
“It’s going to be interesting to see, now that the scope of the Constitutional Court has been widened, how it changes over the next three years and how the court will develop.”
And the law clerks will be involved, too, every step of the way.
Lawyers: A laugh unto themselves
Former clerk Stuart Scott recalls one particular counsel inadequately exemplifying a classic ‘it’s the vibe of the thing’ moment from the Australian legal firm movie The Castle. In answer to a judge’s question about the legal authority counsel relied on for a submission, all he could muster was “Well, it’s got to be in the law somewhere!”
And then there was a hearing in which advocate Seena Yacoob, daughter of Justice Zak Yacoob, appeared for the state in a case. A long debate ensued about whether the majority or minority decision was correct in Everfresh Market Virginia vs Shoprite.
The majority acknowledged the importance of infusing constitutional values into contract law, but said it was not in the interests of justice to entertain the appeal, whereas the minority judgment by Justice Yacoob held that the infusion of the values of the Bill of Rights into contract law was of such significance that the high court was obliged to develop the common law.
It was amusing to see Justice Yacoob grill advocate Yacoob about why the minority judgment must be correct. Justice Johan Froneman cheekily prefaced his next question by saying: “Look, I don’t want to get involved in a domestic dispute …”