We, the People: Insights of an Activist Judge

In some ways, this was the easiest book that I wrote, because I didn't write it - I didn't write it as a book. I'd noticed books by some very famous people such as Edward Said’s book Orientalism, a collection of essays he'd written at different times and put it together in a book. And I thought there is quite a lot I've written along the way, lectures that I've given, occasions when I've been being asked to make comments on something that's happening: Inaugurating a new Supreme Court in Kenya, speaking to legal historians in South Africa about the future of customary law… all over the place... and maybe I could put it all together in a book. So, I did some research. I'd forgotten about quite a few of the pieces, and bit by bit, the book started to have a beginning, middle and end in terms of the timing and to some extent in terms of the content.

I approached the Wits University Press. I was very friendly with Corina van der Spoel who had run an exceptional bookshop in Johannesburg. It was a joy to go there Saturday mornings; you'd meet so many people; there'd be lovely debates and discussions; and literature from the world. She's now working for Wits University Press, so I approach her, and I ask whether they would be interested in a collection of work? And the overarching theme for me would be that I am a proud, self-proclaimed activist Judge. It's not an accusation, it's an appellation. Activist in furthering the principles of an activist Constitution. In fact, I'd once been invited for lunch at the American Supreme Court, and Chief Justice, John Roberts, very gracious host. Cuisine, well, I won't say anything about the cuisine, it was nothing: The conversation was marvelous. And the first question put to me was from Justice Alito, a well-known very conservative judge, Justice Sachs, would you say the South African Constitutional Court is an activist court? And I said, Yes, Justice Alito, and we have an activist Constitution. So, if you follow what the Americans were saying, conservative Americans, then we must look at the intent of the people who framed the Constitution, to interpret the Constitution today and not add our own gloss. Then, even from that very conservative approach towards constitutionalism, I'm doing the right thing by being activist, and our Constitution demands transformation and change and dealing with facing up to the inequities, and then the hardships, and the imposed disadvantages that people have in South Africa, dealing with them and finding gracious and implementable and principled responses. So, I like the idea of saying I'm an activist judge.

I discovered quite an interesting trove of things that I've produced over the years. I put them together. I cluster them, and each belongs to a different phase. One was the period of transition from apartheid. The other, through to democracy. And then a later period where we are now finding problems in the new society and are having to deal with them. Problems of restorative justice as opposed to punitive justice, dealing with that particular cluster. And customary law, always seen as a kind of thing out there for people who want it, yet so meaningful for the majority of the population. But how do you look at it properly? Traditional leadership? How to look at traditional leadership and trying to encourage traditional leaders now to embody the values of true leadership, being close to the people being able to give leadership, helping with modernisation, moving into a different kind of a society rather than retreating into patriarchy, retreating into a form of dominion that's totally out of sync with the democratic era and with the non-sexist kind of world that we want.

These are issues that I'm dealing with all the way through, and I'm reinforcing some themes at a time when there's quite a lot of disillusion in South Africa about the workings of democracy and also concerns about the failure to achieve the full equality that people were hoping would come with the democratic dispensation. At least we have equality of vote, equality of voice, equality of movement, but not equality of education in real life, not equality of actual access to health services, not equality of housing as a matter of reality, and certainly not equality in terms of land ownership and wealth accumulation. So, I wanted to deal with those themes and to get away from that notion that we were all idealists when we created the Constitution, that we thought everything would be hunky dory and if we just get the vote and everything will follow, and we have wonderful leaders. We weren't like that. What we were saying was dealing with a tension between perfectibility and corruptibility.

I'm reminding people of what we were saying in those days. And I'm also dealing with a theme saying that we support multiculturalism. We don't want a uniformity of society, we don't want a dominant language, a dominant culture, a dominant anything. South Africa, belongs to all, united in our diversity. Diversity is part and parcel of what we united, not steamrolled into unity, but united coming to it as we are, with our cultures, our beliefs, our cuisines, our preferences and so on. We bring it in, and we share it.

I'd been invited by the FW de Klerk Foundation – he was still alive then – to make a presentation at a conference on multiculturalism. I accepted the invitation with a mixture of some discomfort, because De Klerk didn't like Albie Sachs. When I met him publicly, he would be correct, but very, very cold. I heard from somebody who'd been in the Government of National Unity, that De Klerk had bitterly opposed Mandela's desire to appoint Albie Sachs to the Constitutional Court. And the person told me he didn't like De Klerk himself, but he felt sorry for the chap because Mandela was so rude, overriding him on that issue. But okay, I faced difficulties in other aspects of my life, I can face speaking for De Klerk. But I also want him to hear what I have to say because the De Klerk Foundation is very concerned about the future of Afrikaans culture fitting into democracy and not being marginalised, and rejected, and despised in any way. I think to his total surprise, I mentioned my contact with Afrikaners in my youth: The artist Gregoire Boonzaier, the painter, wonderful storyteller, very, very progressive. The poet Uys Krige. And then my dad was General Secretary of the Garment Workers Union, of mainly Afrikaans-speaking women, whose parents had been dispossessed by the British after the Anglo Boer War, their farms burnt down. They're poor people living in the towns and Solly Sachs is organising them. Johanna Scheepers, Johanna Cornelius, Esther Cornelius and others. I’d met them, they were great, they were cheerful and they looked after me as a child when visiting my dad. So, I saw Afrikaners as warm people with progressive ideas and very much part of the nation.

The problem in apartheid South Africa was that multiculturalism was used as the foundation of political rights. And it enabled people to become superior and others inferior, treated by law as such. What was needed then was to get a political system based on equality, and then within that system, multiculturalism will flourish quite spontaneously and naturally, as long as it was dislodged from political power. I think that was a whole new approach for the people in most of the people in the audience. And when I'm leaving, I see a detective is blocking my way, he speaks in Afrikaans, and he says that his father, Jan de Klerk, was a school principal in the then-Transvaal and the National Party took him away from the school to fight against the Garment Workers Union led by my father, and he said that De Klerk had become Minister of Labour and got legislation accepted that prevented black unions from being able to organise and go on strike; legislation which he, De Klerk, had repealed. He shook my hand and allowed me to go. It was actually a rather lovely moment, and I appreciated it because it was spontaneous from him. It had a personal dimension to it. And that became the opening salvo of this book.

One of the themes of South Africa now in the 21st century is a new way of looking at issues. It would have been a new way of looking at perennial issues of people with very diverse historical experiences, cultural backgrounds, way of living in the world, seeing the world, all in one country, and having been at each other's throats until quite recently. Now we're kind of living together, and what does that mean? And to actually see that unity becomes a fantastic foundation for diversity because you're not being treated differently, you're not losing out because of who you are, and your culture, and your language; and you're not gaining because of your culture and your language. You've got equal rights, and you can express yourself in any way that you choose, and language will play a very big role, and faith will play very big role, and culture, and there'll be lots of overlap, and fusion, and contradiction, and new things emerging. I saw that all this is very positive. So, it's in that sense a bit of a fruit salad book, but I like to feel with interesting ingredients.