Judicial landmarks in our democratic evolution

Justice Albie Sachs (justice of the first bench of the Constitutional Court)

The Treatment Action Campaign case, based on the constitutional right of access to health care, which saved hundreds of thousands of lives, is frequently referred to as the most significant matter decided by the Constitutional Court. I literally wept with emotion as we left the court and I heard cheering from spectators wearing T-shirts saying HIV positive.

But there is another case, one hardly ever referred to these days, which I think was even more important. In the Executive Council of Western Cape Legislature v The President case, heard in 1995, Pieter Marais, the National Party premier of the Western Cape, challenged two proclamations President Mandela had issued after being requested to do so by parliament. They dealt with the structures for the first democratic local government elections in our country, and were manifestly progressive in content. By a large majority, however, the court held that the constitution conferred legislative authority on parliament; parliament could not transfer primary lawmaking authority to the president; the proclamations were therefore unconstitutional. 

How would Mandela react? He said he would issue a public statement. We judges sat around the TV screen in our meeting room. We watched as Mandela declared emphatically he had been wrong and that as president he should be the first to follow the requirements of the constitution as interpreted by the Constitutional Court. My heart sang with joy. If April 27 1994 had been the day when South Africa became a political democracy, this was the day on which our country became a constitutional democracy. Parliament was reassembled and the law properly passed.

And when president Thabo Mbeki received the decision of the court in the TAC case, even though it went against his publicly stated views, he not only accepted it but permitted South Africa to develop the largest antiretroviral programme in the world.

Geoff Budlender SC

In 2000, the department of health described the HIV/Aids pandemic as an "incomprehensible calamity" and "the most important challenge facing South Africa since the birth of our new democracy". But the government refused to make available nevirapine, an antiretroviral medicine that was safe and effective, and available for free, to prevent mother- to-child transmission of HIV.

The constitution says the state has an obligation to take reasonable measures to fulfil the right of access to health-care services. But how would the courts apply this in a highly politicised dispute?

We all know what happened. In the TAC case, the Constitutional Court unanimously ordered government to provide nevirapine. Government complied.

Hundreds of thousands of lives, maybe millions, were saved. The consequences went beyond that profound result.

First, the court put it beyond dispute that the social and economic rights in the constitution are enforceable. They are not only noble aspirations. Second, the case demonstrated the important of those rights in a country such as ours. Wealthy people do not require these rights. They can afford what they need. What they want from the constitution is the protection of their existing rights. Social and economic rights are poor people’s rights. The constitution protects existing rights and also seeks to ensure transformation so that the basic needs of all are met.

The case established that in a constitutional democracy, the exercise of all public power is accountable. The principle of the separation of powers does not place controversial matters beyond the courts. The exercise of all public power must conform with the constitution.

—  Geoff Budlender

Third, the case established that in a constitutional democracy, the exercise of all public power is accountable. The principle of the separation of powers does not place controversial matters beyond the courts. The exercise of all public power must conform with the constitution.

A fourth consequence was non-legal: this was a turning point in relations between government and civil society. The early days of democracy showed some quiescence on the part of civil society. We finally had a government we had chosen. Government adopted many of the policies for which civil society organisations had campaigned under apartheid.

But in time the new government came to behave like other governments. It made compromises. It failed to implement some programmes effectively. It made mistakes. Gradually, it became less open and less responsive to the views of those outside it. The dispute over the prevention of mother-to-child transmission of HIV was the first big confrontation between civil society and government.

Fifth, the case illustrated the role of social movements in enforcing the constitution. The TAC built an alliance with key pillars of civil society — trade unions, religious organisations and media. The judgment of the Constitutional Court was the culmination of a battle which the TAC had skilfully fought outside the courts, with the strategic use of the courts as part of a broader struggle. Democracy is not only about voting once every five years. It is also about the ability of ordinary people to influence their government, to ensure that it is responsive to their needs.

Finally, court orders need to be enforced. The court order placed obligations on each provincial government. The TAC monitored compliance through its activists and supporters around the country. Mpumalanga did not comply. An application to the high court for a contempt of court order quickly ended any foot-dragging. Civil society mobilisation again made the constitution real.

The lessons of the TAC case continue to speak loudly.

Peter Harris (partner, Harris Nupen Molebatsi Attorneys, technical adviser to the Constituent Assembly, 1994-1995)

In preparation for the first democratic local elections in November 1995, parliament adopted the Local Government Transition Act to restructure local government. The act gave to the president the power to do, through proclamation, what only parliament may do. The Western Cape legislature argued that parliament may not empower the president to make legislation and, to the extent that he had done so, this breached the principle of the separation of powers, intrinsic in the interim constitution.

The Constitutional Court, an infant in constitutional terms, ruled against president Mandela. I was not involved in the case but it was a key moment for South Africa. The country held its breath. This was the first real test of the new ANC government and its president, with the question being asked as to whether president Mandela would abide by the judgment of the court.

The judgment had barely been made public when president Mandela called a press conference and stated: “The court’s judgment does not create any crises whatsoever. I should emphasise that the judgment of the Constitutional Court confirms that our new democracy is taking firm root and that nobody is above the law.”

President Mandela, ever the virtuoso of political symbolism, exhibited a delicate touch to relieve the tension in the country when he publicly joked that he had hoped that “my former lawyer, Arthur Chaskalson, would say, ‘Man, this is my client, I must pass a judgment which will not humiliate him.’ But he passed judgment and he said, ‘the president had no right to issue these proclamations’ ... It’s very good that they gave judgment against the president of the country because that shows that all of us in South African law now are equal and I welcome that.”

President Mandela publicly underlined the supremacy of the constitution and that all arms of government were accountable to it. However, democracy is not static. It has peaks and troughs and requires constant nourishment and protection.

The fact that former president Zuma would 26 years later openly defy a ruling of the court exhibits the stark and dangerous difference in approach between Mandela and Zuma to the court, a trough indeed.

Justice Zak Yacoob (justice of the Constitutional Court, 1998-2013)

The Makwanyane judgment, the second written in the Constitutional Court, importantly determined that the law that authorised the death penalty for murder without extenuating circumstances, and other serious offences, was inconsistent with the constitution and invalid. 

The penalty was found to be a violation — an unjustifiable limitation — of the right to life, to dignity and the right not to be subjected to cruel, inhuman or degrading treatment or punishment.

The Makwanyane judgment, the second written in the Constitutional Court, importantly determined that the law that authorised the death penalty for murder without extenuating circumstances, and other serious offences, was inconsistent with the constitution and invalid

—  Zak Yacoob

In rejecting various arguments for why the death penalty should be kept, the court relied on research that showed that the death penalty did not have a preventive effect — it did not result in the reduced commission of the serious offences for which it could be imposed and [the court] saw no evidence to show that a very long term of imprisonment would not be effective and appropriate. Instead, the evidence before the court showed that the best way to prevent serious crimes was to investigate them promptly and efficiently so as to ensure punishment.

The argument that society demanded retribution was not a sufficient justification either. The state had to demonstrate by its own exemplary conduct that it upheld constitutional values, and the authorisation and infliction of the death penalty was by no means exemplary.

The judgment was also important in what it said about the role of public opinion when courts were determining questions of constitutionality. The court said public opinion in relation to the death penalty was relevant as a factor but not decisive. The court had to determine its own opinion, taking into account all the circumstances.

Marumo Moerane SC

There were the Clive Derby-Lewis and Janusz Walus cases, I was involved in all of them from 2009 up to 2022. There were several of them, from the Pretoria high court case where in 2009 a full court refused to release Derby-Lewis on parole because Chris Hani’s widow’s views had not been canvassed. Later in 2015, a judge of that court ordered Walus’s release within 14 days. The matter went to the Supreme Court of Appeal. The SCA threw it back to the high court because the representations by [Hani’s widow] Limpho had not been taken into account when the parole decision was made. (In the meantime, Derby-Lewis had been released on medical parole in 2015 and died in November 2016.)

The Walus case went through various iterations, eventually landing in the Constitutional Court, which finally ordered his release after 29 years of incarceration.

For me, those were difficult cases, particularly because Chris Hani is a person I knew personally. We were contemporaries, born in the same year, 1942. We got to Fort Hare in the same year 1959 and we both left Fort Hare at the end of 1961. Thereafter, I had occasion to meet him twice in Lusaka in 1989 when I was doing an inquest into the deaths of some eight ANC people who had been ambushed in Piet Retief in 1988. Needless to say, I attended his mammoth funeral in 1993.

Walus had been sentenced to death in 1993 and, on appeal to the appellate division, the court indicated that it agreed with that sentence. However, because the Makwanyane case was pending, his sentencing was postponed pending the decision of the Constitutional Court on the constitutionality of the death penalty. After the Makwanyane decision the SCA set aside the death sentence imposed on him and stated, inter alia, that his atrocious crime “demands the severest punishment which the law permits”.

The case itself was terrible because Walus and Derby-Lewis were plotting a civil interracial war that would be accompanied by widespread bloodshed. As found by the trial court and confirmed by the appellate division, that was their objective when they assassinated Chris Hani. So, there was that dimension about the Walus cases, on top of the legal principles that were set by the case.

I didn’t think ordering his release was the right thing to do. Compare that case to a person like Sirhan Sirhan who had assassinated Robert Kennedy, who at the time when these matters were argued was still incarcerated after more than 50 years and after being refused parole at least 15 times. Furthermore, James Earl Ray, who assassinated Martin Luther King, was sentenced to 99 years in prison in 1969, and he died in prison while still serving his sentence. I thought a person like Walus who commits such a heinous crime, which can be equated to treason, would have been required to serve a much longer period. That’s my personal view.

The reasons the Constitutional Court gave involved, to a large extent, their interpretation of what is meant by “sentencing remarks” in the government’s parole policy, in other words, the remarks made by the sentencing court. All along that had been interpreted to include the judgment itself and the remarks made at the time of sentencing.

However, the Constitutional Court, consisting of an overwhelming number of black justices, unanimously came up with a new interpretation of “sentencing remarks”. They interpreted that to mean remarks about the minimum period of imprisonment that a convicted person should serve before he or she can be considered for parole. In other words, they adopted a narrow interpretation of “sentencing remarks”. Among other considerations, that’s how Walus came to succeed in the appeal.

The tragic irony about this case is that a much respected and gallant freedom fighter is no more, and an immigrant who sought to derail the attainment of democracy in South Africa and plunge into civil war the country that had welcomed him, lives. His life was spared by the very constitutional dispensation that he sought to prevent from coming into being and has been freed by the judiciary of the democratic state that he sought to destroy!

However, Roma locuta, causa finita est. Or is it “Braamfontein locuta, causa finita est”?

Krish Govender (founding member National Democratic Lawyers Association and head of the KZN state attorney’s office, 1998-2015)

During the turbulent years immediately after 1994, tensions ran high as disgruntled elements within the minorities and broader society pushed back against progressive changes like the establishment of the Truth and Reconciliation Commission, the settling of the Constitutional Court and the implementation of new laws.

Even the racist dominant sports bodies fought tooth and nail for hegemony, especially in rugby. The die-hards wanted control over the Springboks and were not going to give up without causing upheaval. The old South African Rugby Football Union, Sarfu, was controlled by its then president, one very rich Afrikaner, Louis Luyt, who was intent on keeping the Springbok team as white as possible. In attempting to do so, he inevitably exceeded his financial and administrative powers and president Nelson Mandela, on September 22 1997, appointed a commission to investigate financial, administrative and related matters of Sarfu, much to the ire of Luyt and all his acolytes.

Numerous legal issues flowed from this, all of which are covered in the law reports and legal commentary until 2001, where many novel principles of law and procedure were settled in the Constitutional Court, in more than one judgment. 

But in all this, what stood out was the leadership, integrity and respect that Madiba displayed when Luyt and three other northern provincial rugby unions applied to court to set aside the presidential proclamation. They then demanded that Madiba present himself as a witness to disprove allegations of bias and prejudice against Sarfu and Luyt.

Against an outpouring of outrage from the widest range of public opinion and legal advisers, at this affrontery from Luyt, Madiba, a lawyer himself, set an example to the world by presenting himself to the high court, before a conservative Afrikaner apartheid-appointed judge, [William] de Villiers, to give evidence. He was unafraid to be vigorously cross-examined by conservative Afrikaner advocates. He stood proud and firm and testified with typical Madiba aplomb despite everything that was put to him to unsettle him.

Madiba’s humility before the law and his example to all in our country to respect the law and our constitution by respecting the subpoena to attend court and answer questions was of monumental importance to our young democracy. He honoured the fundamental principles of our largely untested Bill of Rights at that time, especially the principle of equality before the law.

Madiba embodied and lived these important values and set the basis for all of our presidents who followed thereafter, when they exercised their powers. However, as we see today, presidents, ex-presidents and the powerful and corrupt rich are fighting back against this legacy. Despite this fightback, our constitutional democracy will prevail. The alternative will be chaos.