The laws that shaped our country

In celebrating our 30 years of democracy, FRANNY RABKIN asked some of the lawyers and judges who helped to build our constitutional democracy one question: if they had to single out a single moment, case or judgment in the process, what would it be?

● It is hard to select one judgment out of the approximately 970 the court has handed down over the last 30 years. There are many important cases, but a case that stands out for me is what has come to be known as the Certification case.

South Africa’s 1996 constitution was drafted in a two-stage process. Before the first democratic elections were held, an interim or temporary constitution was agreed between the liberation movements, National Party government and other political actors. The negotiations very nearly failed because there was deep disagreement as to whether what was being negotiated before the elections would become the final constitution. That impasse was finally resolved by an agreement that the interim onstitution would govern the transition to democracy, but that after the first democratic elections in April 1994, the members of parliament would also serve as members of a Constitutional

Assembly to draft a new constitution. It was also agreed that the Constitutional Assembly would ensure that the new constitution would comply with 34 Constitutional Principles that were annexed to the interim constitution and it was agreed that a newly established Constitutional Court would certify whether the new text did comply with those principles.

And so it was for that reason that the Constitutional Court heard argument over nine days in July 1996 from more than 30 different parties as to whether the newly drafted constitutional text should be certified. In a long and detailed judgment, the court held that in most respects the new text did comply, but it found nine areas where it held it did not, which included the powers of provinces, the framework for local government, the attempt to shield certain legislation from constitutional review and the independence of the Public Protector and Auditor General, and it referred these nine issues back to the Constitutional Assembly, which reconvened and amended the text.

The amended text was reviewed by the court in December 1996, which certified that it was now consistent with the Constitutional Principles and the 1996 constitution came into force on February 4 1997.

The certification decision is important, first, because it was an innovative procedure, a fine example of the vision, courage and inventiveness of those who worked to ensure that a transition to democracy would happen, something that was never certain.

Secondly, it is an important signifier of the important role of the Constitutional Court in our democracy. Finally, the process of certification brought many different political parties, organisations and individuals from all walks of South African life together to engage in a public discussion about key elements of our constitutional text, and thus should serve as a reminder, 30 years later, that the constitution, and our democracy, will only flourish when South Africans seek actively to foster its values and vision.

JUSTICE JOHANN KRIEGLER

Justice of the first bench of the Constitutional Court

● My most significant case in the new South Africa? Technically the most demanding — the Certification; most wrenching — Soobramoney; politically most charged — SARFU. But the most personally significant was the Nevirapine case, Minister of Health & others v Treatment Action Campaign & others in mid-2002 (about the use of a new drug to combat mother-to-child transmission of HIV). It was significant for many reasons, not all of them legal.

The first reason was because the lives of countless thousands of people were at stake

— and not merely people but newborn babies, largely in remote rural villages. The statistics produced in evidence were both numerically frightening and individually heart-rending. The numbers were staggering, the primary affected sector of society pitifully confused and vulnerable.

Secondly, the politico-constitutional context was fraught. President Mbeki was a self-taught Aids-denialist, minister of health Manto Tshabalala-Msimang (herself a qualified medical doctor, as was her like-minded predecessor) even more volubly in denial. Indeed, government’s rejection of received opinion on the nature, cause and treatment of HIV/Aids had been elevated to a matter of confidence.

Thirdly, although the scientific debate was somewhat one-sided, the weight of evidence increasingly irresistible, government wasn’t really denying the efficacy of Nevirapine. Its case was rather that the drug had not been proved safe and that by proceeding with due caution it was competently exercising its exclusive constitutional powers. This subtle line required painstaking formulation of the court’s reasoning for interfering in what on the face of it was a government responsibility.

But the impression of the case that ultimately remains most vivid in my mind’s eye is the ineffable dignity of the rank upon rank of disciplined demonstrators outside, silently backing their lawyers’ submissions. To me that case, even more than the snaking queues of 1994, demonstrated our emergence as a truly democratic society.

KGOMOTSO MOROKA SC

● I’ve done many cases at the Constitutional Court but the one case that stands out for me, when I think about it, was the Sylvia Mahlangu case.

It was the domestic workers’ case, extending rights to claim for compensation under the Compensation for Occupational Injuries and Diseases Act.

Because hitherto domestic workers were excluded from the definition of “employee” under the act. And four years ago, in 2020, we approached the Constitutional Court to extend that definition, to say domestic workers should also be covered.

For me, that’s the most important case of my life. My grandparents were domestic workers. They would never have been entitled to claim. And here we are, 27 years into our democracy, and they were still not covered. So for me, that case was seminal. To say to us if we are going to be a constitutional state, and affirm rights that are guaranteed in the constitution, if one group is not extended those rights – the most vulnerable group – then our democracy is not working.

And that is why I say, for me, that’s my case. Sometimes I even forget the cases I’ve been involved in. I was reading a judgment the other day and it sounded familiar until I got to the end, and I saw “Kgomotso Moroka for the respondents”.

I said: “Wow, ke nna kante (Oh, that’s me!”).

But I don’t think this case I’ll forget. There were lots of significant cases, but this one, it was an important milestone case. And I’m honoured to have contributed to that jurisprudence.

MOJANKU GUMBI

(Advocate and former special adviser to deputy president Thabo Mbeki and special adviser to President Thabo Mbeki)

● Madiba’s term was coming to an end in 1999 and the elections that year were going to be the first for President Mbeki’s anticipated term. Lindi Sisulu, who was Deputy Minister to Prince Mangosuthu Buthelezi, made it clear that the ANC government should not allow people, five years into democracy, to still have the blue ID, which was carried by white people. Many of them had that ID still, five years into democracy, when most South Africans had converted to green bar-coded IDs. They just did not want to change to a common identity document.

So the law was passed — that for the 1999 elections only the green bar-coded ID would be used. And this was less than a year before the elections, when it went through parliament. And, of course, the Democratic Party, in Pretoria, and the New National Party, in Cape Town, took the government to court — to say there was no way that the home affairs department would meet the deadline to issue the IDs in time for elections. And it was their constituency, because it was white people who just didn’t want to be on the same identity form as other South Africans.

So that case caused a lot of problems. First of all, people know who I am, so my team was all black lawyers. So a number of ministers went to Madiba, to say Mojanku is taking her black consciousness too far. This case is really the first test of our democracy, because the first elections after democracy may be postponed, may not meet the five-year deadline, because she’s got a young team, they’ve never appeared before the Constitutional Court, she should go for experience. Madiba called me in to say: ‘I know darling, you want to build. But let’s go for experience.’ But all the experience he was referring me to was white. So I said to him: ‘But Tata, in 1994 South Africa didn’t have a constitution. So we all have the same level of experience in terms of constitutional law.’ And we had a big fight. I asked him, I said: ‘Well, I can ask you whether when you assumed the presidency of the country, you had ever before served as such? If I may say so, you were sitting in jail all these years, but in 1994 South Africans appointed you president, because we knew you had the capacity’. He said ‘don’t be facetious’. And we had a big blow out, me and him. And when I left, he called my boss, he called Deputy President Mbeki, he said ‘you know Thabo, this is a first test for you and Mojanku is being difficult’. So Deputy President said ‘Ok, I’ll talk to her’. So he asked me, he said: ‘Mojanku, do you have confidence in your team?’

I said: ‘Absolutely. I have confidence in my team.’

He said: ‘Ok, I trust you. This is a big one for the country, it will be a scandal for the country if we were to postpone the very first election after the 1994 elections.’

So, I worked very hard, with the legal team — it was Ishmael Semenya and Vincent Maleka mainly. But I worked full time on those papers. And needless to say — the DP took us to Pretoria, the NNP to Cape Town, in the high courts, and finally to the Constitutional Court — we won the cases all the way. But also for me it was the principle: that we really need to become one South Africa. And the good thing was that the Constitutional Court, even Arthur [Chaskalson], said later: ‘Mojanku, you did very well, it was the first time we had black counsel leading and arguing an important case before the Constitutional Court.’

I also knew the challenges that home affairs had; and the doubt was there for all of us to see. And it was led by Umntwana waka-Phindangene, Prince Mangosuthu Buthelezi. We got along very well, Prince Mangosuthu Buthelezi was very fatherly, because he was friends with my father at Fort Hare, so I could really push him a little bit on that one. But it was a good thing that we won that case.

WIM TRENGOVE SC

● I think I would pick a case I did for the Richtersveld people, for the recovery of their land.

Because they were humble and downtrodden people in a god-forsaken part of the country where they had been shoved aside and ignored by successive governments.

First by the colonial government and then by the apartheid government and, frankly, also by the democratic government, which had done nothing to redress the wrongs done to them.

This was so particularly after the world’s richest alluvial diamond fields were discovered on their land.

They were driven away and reduced to a small portion of what used to be their land. And then came the constitution and they suddenly had rights.

And particularly the right of restitution of the land taken away from them by racially discriminatory laws of over a century.

We were vigorously opposed by the democratic government and lost the case hands down in the Land Claims Court, but then won in the Supreme Court of Appeal and won in the Constitutional Court.

And they got not only their land back, but also the mineral rights.

Why I thought it was such a wonderful case is that it was a case that recognised the humanity and the rights of the most humble and marginalised community and vindicated them, and particularly their rights to land, against successive governments, including the democratic government.