The Lawyer Prince and Justice Under A Tree

The Constitutional Court At Thirty Years

By Koketso Mamabolo

“The belief in justice is only possible in a society that is founded on justice,” said Tembeka Ngcukaitobi SC, in a public lecture for the law students at the University of Johannesburg in 2018. “And perhaps the greatest lesson we can take from Mandela the lawyer is the abiding belief in the justice of the system.”

Ngcukaitobi, one of the brightest minds in South African law and author of The Land is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa, was sharing the story of Nelson Mandela’s legal career, an under-researched period in a life that has otherwise been thoroughly covered. The country’s most famous lawyer did not want to be a lawyer, explains Ngcukaitobi. He wanted to be an interpreter, to help his mother, but would eventually spend a decade practising as an attorney, obtaining his LLB two decades later while in prison, and eventually becoming one of the country’s great constitutionalists.

In October of 1994, months before the inauguration of the Constitutional Court envisioned in the interim Constitution, President Nelson wrote a letter for readers of the legal journal Consultus. In it he called on the legal fraternity to play their role in upholding the new constitutional order.

“Within this constitutional schema the courts are granted a prominent role,” wrote President Mandela. “Our courts and those who work in them now find themselves on the centre stage. They will also be important players in making the Constitution work.”

Speaking at the 30th anniversary celebrations of the Constitutional Court, the highest court in the land, Justice Mandisa Maya, the sixth to serve as Chief Justice since 1995, reflected on how the courts have made the Constitution work, ensuring that addressing socio-economic rights is a constitutional imperative.

“Thirty years on, South Africa has made real strides in respect of law, governance, and constitutional accountability. We have entrenched the rule of law and judicial independence, and abolished almost, if not all the unjust laws and replaced them with progressives ones that are intended to entrench human rights, protect vulnerable groups and ensure a just and equal society.”

Justice Maya was addressing guests who included President Cyril Ramaphosa, and former Presidents Thabo Mbeki and Kgalema Motlanthe, members of the legal fraternity, government ministers, MPs, diplomats and political leaders.

They were joined by the Chief Justices of Botswana, Zimbabwe, Canada, Nigeria, Namibia, and the Kingdom of Eswatini, along with the President of the Supreme Constitutional Court of Egypt, the President of Mozambique’s Constitutional Council and judges from the Supreme Courts of Kenya and India.

“These trailblazing justices boldly embraced the extraordinary challenge of building a court from scratch both physically and institutionally, and crafted a foundational framework for South Africa’s constitutional jurisprudence,” said Justice Maya, welcoming the four judges who were part of the court’s first eleven.

Former Constitutional Court Judge Albie Sachs touched on what it felt like in that period of transition to a constitutional democracy at an event on the eve of last year’s elections, hosted by the Nelson Mandela School of Public Governance at the University of Cape Town. “It’s almost like a three-act play. And you don’t know: Is it a tragedy? Is it an epic? Is it a comedy? In a way, it’s got all of that. But it’s a very noble story. And it’s a story not about one noble man, but about a people who found nobility, not only in the midst of horror and abuse, but in response to an abuse.

“It’s a beautiful story,” said Justice Sachs, who was one of the four who attended the anniversary celebrations, alongside Justices Kate O’Regan, Johann Kriegler and Richard Goldstone, who were appointed by President Nelson Mandela three decades ago.

The Great Constitutionalist

An example of Nelson Mandela’s respect for the Constitution was his response to the court deciding that proclamations he had made following decisions by parliament regarding the first democratic local elections were unconstitutional. “He [Mandela] had appointed us,” said Justice Sachs. “He’d become the symbol of the transformation and change and courage, and we struck down proclamations issued by him.” Shortly after Mandela appeared on live television and made a different kind of proclamation: He admitted he had been wrong.

The legal advice he had received had been wrong and told the nation that he accepted the court’s decision and doing so, importantly, as the president. Mandela, the constitutionalist and champion of justice. “Now, for me, that was a hallelujah moment,” continues Justice Sachs. “For me, equal to 27 April 1994, when we became a political democracy – our equivalent to independence – that day, and I don’t even know what the date [was], we became a constitutional democracy.

” This was just months after the President had inaugurated the court, in February of 1995. On that he had articulated his belief in constitutionalism which came from his belief in justice. Constitutionalism means that no office and no institution can be higher than the law. The highest and the most humble in the land all, without exception, owe allegiance to the same document, the same principles.”

That magnificently drafted document, and its notion of a ‘Bill of Rights’ in particular, traces its history back to the 1920s. The post-WWII Atlantic Charter influenced further development and the idea was taken even further with the drafting of the Freedom Charter, seventy years ago this year. A commitment was made following a conference in 1991 to the creation of a Constitutional Court. At the time, the Supreme Court and the Appellate Division were the highest courts in the land.

Three years later, President Nelson Mandela, after consulting the first GNU cabinet and apartheid’s last Chief Justice of the Appellate Division, Judge Michael Corbett, appointed Arthur Chaskalson, who had been a senior counsel and national director of the Legal Resource, as President of the Constitutional Court (which would later be joined with the role of Chief Justice).

President Mandela then chose four judges from the ranks of the Supreme Court: Judges Laurie Ackerman, Richard Goldstone, Tholie Madala and Ismail Mohamed. From there a list of one hundred other candidates was reduced to twenty five candidates who were interviewed in October of 1994 over a period of four days by the Judicial Services Commission (JSC).

The JSC whittled it down to ten candidates to present to President Mandela who made the final decision on the six to fill the remaining spots. Included in the four who weren’t appointed was Bernard Ngoepe, who would go on to become South Africa’s first Tax Ombudsman, Chancellor of UNISA, and briefly serve as a Constitutional Court judge on an acting basis. Also on the list was prominent public international law academic Professor John Dugard.

Ultimately, President Mandela chose Professors Yvonne Mokgoro, Kate O’Regan, and Albie Sachs; Justices John Didcott and Johann Kriegler, and Pius Langa SC. At their inauguration, President Mandela described the nature of the path which Justice Maya would allude to thirty years later:

“To Judge Arthur Chaskalson and other members of the Constitutional Court let me say the following: yours is the most noble task that could fall to any legal person. In the last resort, the guarantee of the fundamental rights and freedoms for which we have fought so hard, lies in your hands.

“We look to you to honour the Constitution and the people it represents. We expect from you, no, demand of you, the greatest use of your wisdom, honesty and good sense - no short cuts, no easy solutions. Your work is not only lofty, it is also lonely.

“In the end you have only the Constitution and your conscience on which you can rely. We look upon you to serve both without fear or favour.”

Those words, and the occasion, meant a great deal to the judges who took on the mantle.

“It was so meaningful for us as judges,” recalls Justice Sachs. “Not only that the president of the country had been there on that occasion [inauguration], but Nelson Mandela, who for the world and for our people had represented so much.”

He represented the people and, as he said, “The people speak through the Constitution.”

“The last time I appeared in court was to hear whether or not I was going to be sentenced to death,” said President Mandela at the inauguration. "Fortunately for myself and my colleagues we were not. Today I rise not as an accused but, on behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy.”

As noted by Justice Maya, and President Ramaphosa in his keynote address at the anniversary celebrations, the future of the country’s democracy still hinges on the court. It is indeed the tree that covers us all, its branches forever growing, protecting all of South Africa’s people. Mandela represented the people and, as he said, “The people speak through the Constitution.”

Source: Nelson Mandela Foundation | Consultus (October 1994) | SA Government | Constitutional Hill | Constitutional Court | University of Cape Town | We The People SA