Marinus Wiechers: Far-sighted doyen of constitutional law 1937-2018
Helped draft SA and Namibia’s founding principles, including that of judicial review
● Professor Marinus Wiechers, who has died in Pretoria at the age of 80, was a constitutional law expert who helped draft SA’s interim constitution and was one of the principal architects of the Namibian constitution.
Even more importantly, perhaps, he dug the foundations of South African administrative law, which paved the way for the judicial review of government actions post-1994.
This was anathema to the apartheid government when he wrote his ground-breaking book on administrative law in 1973, arguing that the courts needed more power over the administrative actions of the government.
Coming from anyone at that time, let alone an Afrikaner academic trained at the University of Pretoria (UP) and teaching at Unisa, the idea that the apartheid government should have to submit its actions to judicial review was incendiary stuff.
It put Wiechers on a collision course with the government, which reacted as if his concept of administrative law was akin to an attack on the state. His book was savaged by its lackeys in academia who questioned the very notion of administrative law.
Far from recanting, he published the book in English during the state of emergency in the mid-1980s when the government was trashing the rule of law like never before.
It might be said without much exaggeration that the battle for administrative law that he launched in 1973 has, almost half a century later, saved the country from Jacob Zuma and state capture.
Wiechers’s thinking on administrative law was influenced by a period he spent studying at the Sorbonne in Paris in the mid-’60s.
He was fluent in French and could converse in and read Spanish and German.
His contributions to the technical committee for constitutional affairs at Codesa in the early ’90s were informed by his time at the Sorbonne and his reading of German texts including a close study of the German constitution, which enshrined the protection of human dignity.
In addition to his direct input he inspired a generation of young constitutional law academics, many of whom found their way to Codesa, where they served on various technical committees, including the human rights committee, which was co-chaired by a former student.
Wiechers was born in Pretoria on October 14 1937, one of seven brothers whose father, a teacher, died when they were young. Their mother was left to get them through school and university.
Of the seven, two became law professors, one a chemistry professor, one a scientist, one a medical doctor and one a dentist.
After attending Afrikaans Hoër Seunskool he studied law at UP and joined Unisa as a lecturer in 1960.
In 1965 he was appointed to the chair of constitutional and public international law at Unisa, a position he held until the end of 1993. He headed the department of constitutional and international law for 21 years.
In the mid-’60s he joined the South African legal team that fought at the World Court at The Hague to keep then South West Africa under South African control.
His political views, hatched in the conservative atmosphere of UP, changed fundamentally as a result of his work on the government-appointed Theron commission, which in 1976 recommended the repeal of the Mixed Marriages Act and section 16 of the Immorality Act, and direct representation for coloured people at all levels of government.
The government angrily rejected its findings and prime minister John Vorster attacked Wiechers publicly for his contribution.
In the early ’80s Wiechers’s work on the Buthelezi commission, which recommended uniting the KwaZulu homeland and Natal under an integrated regional government, earned him the wrath of the PW Botha government.
He played a key role in the human rights provisions of the Bophuthatswana and Ciskei constitutions, and his work on the Namibian constitution ensured that basic human rights such as property rights could not be interfered with, even with a two-thirds majority in parliament.
Consequently, the Namibian constitution does not permit the kind of amendments being threatened by the ANC to allow expropriation of land without compensation.
Four days before his death, expropriation without compensation occupied his mind. He feared it would set a precedent for further changes to human rights provisions in the South African constitution.
Wiechers was a strong supporter of land reform, however, and was assessor to the land claims court, which, in 2007, instructed the state-owned diamond mining company Alexkor to hand back to the Richtersveld community ownership of diamond-rich land taken from them a century ago.
The claim was fiercely resisted by the state for almost 10 years.
Wiechers became vice-chancellor of Unisa in 1994 to oversee transformation.
A quietly spoken intellectual, he was perhaps too idealistic and naive to be an effective administrator in what was an unforgiving environment.
He was crushed between opposing forces and retired in 1997, physically, mentally and emotionally drained.
He became a prominent public intellectual whose views were much sought-after and freely given on radio and in print.
He also became an artist of some ability. He held a number of exhibitions of his paintings, etchings and drawings.
Wiechers died of multiple organ failure after suffering heart problems for 18 months.
He is survived by three children.