/ 27 October 2021

How South Africa shaped a world-leading constitution

South African Minister Lamola Hosts A Student Dialogue On The 25th Anniversary Of The Constitution
Former Constitutional Court Judge Albie Sachs. (Photo by ER Lombard/Gallo Images via Getty Images)

As part of the 40th anniversary of the Canon Collins Trust, constitutional law expert Justice Mavedzenge spoke to former Constitutional Court Justice Albie Sachs about the legacy of apartheid-era legal activism for Southern Africa.

Apartheid South Africa used the trappings of Western democracy — a parliament, elections and the legal system — to prop up and legitimise its autocratic enforcement of apartheid. These trappings were opportunities for resistance. In his book White Lies: Canon Collins and the Secret War Against Apartheid Denis Herbstein tells how, beginning with the Treason Trial until the demise of apartheid, Canon John Collins and his successors funnelled money into South Africa to resist apartheid in the court of law. To do this he established the British (later International) Defence and Aid Fund.

“In its final years, from 1985, the Fund helped in 16 651 legal matters — political trials, appeals, detentions without trial, death row stays of execution, inquests, civil claims against the police and the State, group areas appeals, trade union cases, commissions of inquiry, help to communities driven off their land and to people being harassed,” Herbstein wrote.

This support allowed South African lawyers and judges to be creative in the way they could use the law to challenge apartheid. Says former Constitutional Court Justice Albie Sachs: “South Africa owes a debt of gratitude to the many lawyers black and white, like Dikgang Moseneke, Arthur Chaskalson and Ismail Mahomed, who, during the eighties, stood up against legal oppression in the courts. They created a culture of visionary legal activism which made it possible to start imagining a new legal system where the courts would be used not to oppress the people, but to defend their fundamental rights.”

Sachs: In developing South Africa’s constitution, we moved away from a purely technical, positivistic approach, with the judge seen as the disinterested applier of the letter of the law; into seeing the constitution as a document for transformation and change. It required a different cast of mind, much less technical, but based on the foundational values of human dignity, equality, and freedom. 

The need to develop a whole new framework of thinking arose in a very early case, in which the Constitutional Court was split down the middle. There was a provision in the transitional arrangements right at the back of the constitution that said that any cases that were in progress at the time the constitution came into force, would be dealt with as if the constitution had not come into force. It meant that if, in the early days of the new constitutional order there was still a racist statute from before, it could still apply. 

I remember the judges being asked to vote. Going around the table. It came to me. “Albie, what do you think?” I was tongue-tied. I just felt it’s impossible; this is a new dawn. This constitution represents a complete breakthrough. We can’t allow that little provision tucked away in transitional arrangements to allow capital punishment, racist statutes, and oppression of women to continue, not for one second, after the new dawn.

One by one other judges also came to that position. That’s when we developed the theory of the purposive interpretation of the constitution. From then onwards, the approach our court applied was to search for the purposes of the constitution, to look to the preamble, look to the whole spirit of the foundational principles and the Bill of Rights, and to set the issues in their historical context. 

This required a new depth of thought and agility on the part of the South African Constitutional Court judges. In our judgments we asked: what are the pains of the past that continue to obliterate and subdue the humanity of people in our country? What role can the law play in bringing about transformation and change? And we realised that it was not only the substantive law that had to be fair and just, the very way the law was applied had to be amended, it just had to be far more people-friendly.  

It became a source of enormous pride to discover the extent to which courts internationally cited the South African Constitutional Court. In India, our decision on same-sex marriages was relied upon. Our decision about prisoners’ right to vote was quoted in Canada. I’m told by justices of the European Court of Human Rights that they always look to the South African Constitutional Court decisions when developing their approach on how a modern, contemporary, thoughtful and sensitive court should deal with issues. 

The late US Supreme Court judge Ruth Bader Ginsburg some years ago commissioned a survey on the most cited top courts in the world. The survey found that the South African Constitutional Court was the second most cited court globally, with only the Canadian Supreme Court getting more mentions. Who would have thought that the land of apartheid would produce a court that has become a beacon of fairness, justice and hope? 

This outcome was not accidental. We had seen in South Africa how people had been dehumanised by the law. We had fought against that, using the legal system as much as we could in the apartheid era. We had created a swelling mentality in favour of change. A great number of the people elected to the Constitutional Assembly that had drafted our constitution, had themselves been imprisoned, many exiled, many tortured. They wanted to produce a constitution that would transform the swords of oppression into the ploughshares of hope.

Mavedzenge: This could not have been easy, because judges are wired to think in terms of precedents. Very few judges would want to start a journey into uncharted territories. This group was prepared to do just that, and it set South Africa onto a trajectory, which is completely different from the trajectory that other countries in the region have taken. 

Constitutional law expert Justice Mavedzenge

Sachs: When the time came for my generation of judges, who had all been active in the struggle for democracy, to step down from the bench, I was worried.  Would we be followed by a new generation of judges who would be super-technical in their approach and turn their backs on the thrust, the energy and the vision of the new constitutional order we had striven to create? 

I need not have been concerned. Our court has succeeded in establishing a style of thinking and an approach that is producing enormously positive results in South Africa at key moments. New judges added layer upon layer of fresh reasoning to respond to new issues as they arose. 

The resilience and integrity of the judiciary has only intensified since we started out.  Our courts have provided very strong jurisprudence made in the image of our constitution, their concern has been with protecting and securing the rights of ordinary citizens in the face of abusive use of state power by some leaders. 

Today, 27 years into democracy we can look at the strength of public interest litigation. It has helped create a culture of rights awareness that is deeply embedded in our society. Civil society organisations use the legal system to claim and protect rights. What this shows is the strength of public interest litigation in South Africa and the ability of the courts to protect rights without trespassing unduly into the terrain demarcated by the constitution for parliament and the executive to do their work.

Mavedzenge: The South African Constitutional Court’s jurisprudence has developed out of a courageous culture of judges. The region needs more of this especially in countries like Zimbabwe and Tanzania, where there is such a serious regression in terms of human rights protection. People are being detained without trial, or being denied bail for very flimsy reasons. You also see court orders being disobeyed. And when litigants approach the courts to seek their intervention in enforcing the court orders, you see court orders being reversed by the courts themselves.

Sachs: Kenya provided a fascinating example of how a judiciary can go badly wrong, and yet become transformed. Judges became totally implicated in corruption, taking bribes, brazenly defending the power of a very autocratic ruling elite.  After 500 people lost their lives to violence after the elections in 2007, it was felt to be such a calamity — there was no point in going to the court, because the judges were eating out of the hands of the governmental elite. 

Popular anger promoted the drafting of a new constitution that provided mechanisms to achieve a transformed judiciary. The judges were constitutionally mandated not to rely on legal technicalities, and to pay special attention to the needs of the marginalised, the dispossessed and the poor. Certainly the first generation of the new judges, led by Chief Justice Willy Mutunga [who had himself been unjustly imprisoned], produced some outstanding decisions that can serve as beacons for the whole continent. So that has been quite a bright moment in African history. 

Mavedzenge: South African lawyers like Tembeka Ngcukaitobi and Dumisa Ntsebeza are now also playing an important role in neighbouring countries. South African judges have sat on the Supreme Court in Namibia. Albie Sachs, you played a key role in engaging with the judiciary in Kenya. The wealth of knowledge that was developed in South Africa is now being shared in the region. 

We need more courage on the bench for democratic values that are espoused to be upheld. Without that courage, we are unlikely to see the development of a robust judicial culture. Without that judicial culture, it’s very difficult to have the rule of law or judges that are prepared to interpret the law in a way that speaks to the pains that society is suffering.

This interview was compiled by Catherine Sofianos, communications officer, writer, editor and creative projects director for the Canon Collins Educational and Legal Assistance Trust, which was developed as part of the blog project “Troubling Power: Stories and ideas for a more just and open Southern Africa”, which marks the 40th anniversary of the trust