A leading light
The recent passing of Justice Thembile Skweyiya deprives SA of one of the Constitution’s most ardent defenders, writes
On his retirement from the Constitutional Court bench in 2014, Justice Thembile Louis Skweyiya was lauded for his extraordinary career and contributions as a human rights activist and lawyer. It feels all too soon that we must pay our ultimate tribute to this humanitarian jurist and gentle giant of the liberation struggle.
Skweyiya was admitted as an advocate in 1970, and from the 1980s dedicated his Durban-based practice to defending political activists and combatants in the liberation struggle. Recognising the complicity of the courts in the architecture of apartheid, Skweyiya saw his role as “waging a different style of struggle”.
He explained that “working through this corrupt and unjust judicial system, we tried to secure some basic human rights for combatants and other political activists held in detention. We met with much failure but occasionally would come up with creative and innovative ways to make inroads into the repression of the apartheid regime”.
As counsel he represented, among others, Griffiths Mxenge, Oscar Mpetha, Sibusiso Zondo, Zephaniah Mothopeng and the now minister in the presidency, Jeff Radebe. His pupils (trainees) at the Bar included the late former Chief Justice Pius Langa.
In 1989, Skweyiya became the first black South African to be conferred silk in the country – a pitiful but nevertheless extraordinary accolade. In 1991, he headed the ANC’s internal commission of inquiry into complaints by former ANC prisoners and detainees in the ANC’s detention camps. The Skweyiya commission documented repeated violations of human rights, and premised its recommendations on the principles of redress, accountability and prevention.
The commission called for the compensation of all those who suffered maltreatment in detention, without distinction between those who were and were not South African agents. “We cannot countenance any distinction of this sort when it comes to the humane treatment of detainees,” it said.
After the democratic transition, Skweyiya became a judge “by default”, as he modestly put it. Justice Skweyiya never could resist the call of public service – a fact demonstrated by his post-retirement appointment in 2015 as the inspecting judge of prisons.
Skweyiya was appointed to the high court in KwaZulu- Natal in 2001 and began acting on the Constitutional Court bench that year. He was permanently appointed to the Constitutional Court in 2003 until his retirement in April last year. As a jurist, his writings show an overriding concern to promote “a caring constitutional democracy”.
At his interview with the Judicial Service Commission for appointment to the Constitutional Court, Skweyiya insisted: “You can have the best Constitution, but if you have someone with a hungry stomach, someone who has no home, and someone who can’t go to hospital and be attended to, it is a meaningless document.”
His empathy appears most strikingly from his judgments on children’s rights, on which he wrote extensively. His last judgment, J v National Director of Public Prosecutions, addressed the compulsory registration of child offenders for sex offences on the National Register for Sex Offenders. Writing for a unanimous court, Justice Skweyiya found that such a legislative requirement unjustifiably limited the child offender’s rights. He again underscored the nurturing and reformative aims of the law and society where children were concerned, and the importance of this approach for “the shared dignity of the broader community for years to come”.
He also wrote important judgments on administrative law, the rule of law and freedom of the media.
To name a few, his judgment in Joseph remains the leading authority on procedural fairness; his judgment in Print Media significantly affirmed that “the free flow of constitutionally protected expression is the rule and administrative prior classification should be the exception”; and his judgment in Khumalo v MEC for Education: KwaZulu-Natal addressed the rule of law obligations on the state to seek judicial review of unlawful decisions.
Notwithstanding his allegiance to the ANC, Skweyiya was a fierce defender of the courts. Speaking to students at the University of Fort Hare in 2012, Skweyiya said – in a statement that sadly could just as well have been made today, and which bears repeating: “In recent months, however, our constitutional scheme – and in particular the courts – has been the subject of alarming criticism and attack, overtly and impliedly from within. What justifies the cause for concern is that these comments smack of a fundamental misunderstanding of the kind of democratic model that we, as a nation, endorsed when agreeing upon the 34 Constitutional Principles on which our Final Constitution is based, and ultimately in adopting that document as the fundamental law on which our democracy stands. It is vital, therefore, that we disabuse ourselves thoroughly of any misconceptions, that we make clear and unmistakable the nature of our South African democracy, as our jurisprudence has done and will continue to do, and that we propagate this knowledge among all generations now and into the future, in order that all people may know the true fruits of their struggle, as embodied in their Constitution.” Advocate Bleazard was a Constitutional Court law clerk
to Justice Skweyiya between 2009 and 2010
GENTLE LEGAL GIANT Thembile Louis Skweyiya