A lead­ing light

The re­cent pass­ing of Jus­tice Them­bile Sk­weyiya de­prives SA of one of the Con­sti­tu­tion’s most ar­dent de­fend­ers, writes

CityPress - - Voices -

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

PHOTO: KHAYA NG­WENYA

GEN­TLE LE­GAL GI­ANT Them­bile Louis Sk­weyiya

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