The Presidential Years

Mandela’s respect for the Constitutional Court was in the first instance out of respect for the Constitution – but there was also a strong thread of respect for the law as such and for the profession of which he had been both a member – as a lawyer – and a beneficiary – as defendant and prisoner. Those lawyers who had kept the ideal of justice and rule of law alive even when it was perverted as an instrument of oppression earned his particular admiration.

As president, Mandela appointed judges to the Constitutional Court from a list provided by the Judicial Services Commission . In line with the new ethos, the procedure for appointing constitutional court judges was radically different from the past. The commission was one of the constitutional innovations. It is a multidisciplinary body whose members represented the executive, parliament, the legal profession and presidential appointments. It interviews candidates in open hearings and draws up a list of names from which the president would make his selection.

In making his choices he was guided by more than one consideration. His selection was explicitly informed by the constitution which stipulated ‘the need for the judiciary to reflect broadly the racial and gender composition of South Africa’. At the same time, most of those he appointed were not unknown to him, given his own history as lawyer, defendant, prisoner and student of law.

One lawyer whose distinguished legal record and juristic record would seem to have made him a candidate for the Constitutional Court, was not appointed by Mandela. George Bizos, a friend and close from their time at university, did not make himself available, so that he could continue helping to deal with Mandela’s personal legal advisory needs. He was, though, appointed to the Judicial Services Commission.

The inauguration of the Constitutional Court in February 1995 fulfilled the aspiration for constitutionalism.

The last time I appeared in court was to hear whether or not I was going to be sentenced to death. 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.

It is not just a building that we inaugurate, handsome though it is. It is not a body of wise men and women that we launch on their path, important though we regard their work. It is not just our blessings that we give to their work, confident as we are in their integrity and commitment to justice. It is an institution that we establish - South Africa’s first Constitutional Court.

People come and people go. Customs, fashions, and preferences change. Yet the web of fundamental rights and justice which a nation proclaims, must not be broken. It is the task of this court to ensure that the values of freedom and equality which underlie our interim constitution - and which will surely be embodied in our final constitution - are nurtured and protected so that they may endure.

We expect you to stand on guard not only against direct assault on the principles of the constitution, but against insidious corrosion. Attacks on the basic rights of the people are invariably couched in innocent language.

We do pledge that the new Government of National Unity will never be party to the subterfuges of the past which put a humane gloss over the most iniquitous denials of our rights. We are confident that the new parliament, imbued with openness of debate and honesty of purpose, will never attempt to pass laws which oppress and divide. We believe in the constitution and the processes it has established. We are convinced that multi-party democracy and freedom of opinion have taken firm root in our country. We have no doubt that the nation is committed irreversibly to acknowledging diversity and respecting the basic rights of everyone.

Yet experience everywhere teaches that in addition to all this, special institutions are required to ensure the continuity of right and justice.

We have fought hard for the basic principles enshrined in the interim constitution. The rights and freedoms it proclaims are not simply words taken from hallowed texts in other parts of the world. They represent our endeavours, and our dreams of a free and just society.

The interim constitution, and the principles it sets out for the Constitutional Assembly, are home-grown. They took root in the soil of our own harsh experiences. They grew upwards towards the light of our own highest aspirations. We must defend them, all of us.

Our constitution rests on three fundamental pillars: Parliament, the Government, and the Constitutional Court. Each has its specific role to play. Take away or undermine any, and you weaken the whole structure. That is why your independence is guaranteed in the constitution.

One of the things one discovers when coming into office is that there is no shortage of rubber stamps. South Africans did not establish this court to be another rubber stamp. We expect you to be creative and independent. We expect you to be true to the oath you have just sworn.

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. It does not matter whether you are black or white, male or female, young or old; whether you speak Tswana or Afrikaans; whether you are rich or poor or ride in a smart new car or walk barefoot; whether you wear a uniform or are locked up in a cell. We all have certain basic rights, and those fundamental rights are set out in the Constitution.

The authority of government comes from the people through the Constitution. Your tasks and responsibilities, as well as your power, come to you from the people through the Constitution. The people speak through the Constitution. The Constitution enables the multiple voices of the people to be heard in an organized, articulate, meaningful and principled manner. We trust that you will find the means through your judgments to speak directly to the people.

You are a new court in every way. The process whereby you were selected was new. When we look at you, we see for the first time the many dimensions of our rich and varied country. We see a multiplicity of backgrounds and life experiences. Your tasks are new. Your powers are new. We hope that, without abandoning the many sterling virtues of legal tradition, you will find a new way of expressing the great truths of your calling. You will be dealing with the rights of millions of ordinary people. The Constitution which you will be serving is the product of their sacrifice and belief. I am sure that I am speaking for all of them when I say that the basic reasons for your decisions should be spelt out in a language that all can understand.277

The leading jurists during Mandela’s presidency had, in different ways, earned respect as defenders of justice before the achievement of democracy.

Mandela’s path had first crossed that of Michael Corbett, the first chief justice of democratic South Africa, while a prisoner on Robben Island, as Mandela recounted at a state banquet marking Corbett’s retirement.

I first met Michael Corbett in unpromising circumstances some 25 years ago. I was a prisoner for life. He was a junior judge on a prison visit to Robben Island.

There was a particularly unpleasant conflict between warders and prisoners, arising from a brutal beating, and I was the prisoners' spokesman.

I had no particular expectations of being believed or even listened to. The Commanding Officer tried to intimidate me. But not only did this young judge and his colleagues listen carefully to what I had to say. In my presence Judge Corbett turned to the Commanding Officer and the Commissioner of Prisons, and protested sharply to the Commissioner over the behaviour of the Commanding Officer. Such courage and independence were rare.278

Arthur Chaskalson was appointed by Mandela in 1994 as the first president of the Constitutional Court (the post was renamed Chief Justice in when it was merged with that of Chief Justice. He was part of the defence team in the Rivonia trial. In 1979 he switched from a legal practice to establish the Legal Resources Centre, a public interest organisation defending and promoting human rights. He was also part of the ANC Constitutional Committee and negotiating team, and chaired the technical committee that drafted the bill of rights which became part of the Constitution.

Michael Corbett was succeeded as Chief Justice in 1996 by Judge Ismail Mahomed.

[O]ur new Chief Justice is indeed a man for all seasons. ...

As a member of the Johannesburg Bar he acquired an impeccable record as a defender of human rights and civil liberties of individuals. This he did though impediments were placed in his way by the Group Areas Act. Amongst other things this prevented him being allocated chambers for several years. His ability to put this past behind him is now reflected by his decision to work and live in Bloemfontein, a city in which, as an advocate appearing before the Appellate Division, he endured the bizarre indignities of apartheid.

In a career of some thirty-five years as an advocate, Ismail Mahomed appeared in numerous trials on behalf of some of the leading figures in the liberation struggle. …

Because of his reputation for impartiality and firmness, he was accepted as co-chairperson of the multi-party constitutional negotiations.

I can still recall the firmness with which he voiced his commitment to the supremacy of the Constitution, when at about midnight, he warned us politicians gathered at those Negotiations that, as judges, they would fearlessly uphold the Constitution.

This was no idle threat. That became clear when I was cited as First Respondent in the case arising out of a constitutional challenge to Proclamations I had issued under a section of the Local Government Transition Act.279