Judicial Service Commission Interview with Prof. Albert Louis Sachs
Director: South African Constitution Studies Centre
University of the Western Cape
Tuesday, 4 October 1994
Judge Corbett: Prof Sachs I would like to just at the outset raise a matter that, it was a newspaper article that was drawn to our attention mainly because of the mention in it of certain allegations concerning another candidate who we will be hearing later, but it also involves yourself. I think you are familiar with the article, are you?
Prof. Sachs: I would say over familiar.
Judge Corbett: I am sure. I do not think I need to read out what was stated, I think you are familiar with the suggestion contained in the article or the innuendo contained in the article. Would you like to comment on it?
Prof. Sachs: Yes, well thank you Chief Justice, I am very glad you have given me the opportunity to do so. It is not the first time that a statement of that kind has been made in the press. It has caused me very great pain and I have not felt it was appropriate to reply through the press because we are not running for office and we have to be judged on our record, our personalities, who we are. And I feel that this was the appropriate occasion to deal with the matter. Basically it is suggested that on the basis of something that I wrote in an article in the Weekly Mail that some secret deal had been done in terms of which independently of any reasoning and any assessment which the members of this Commission might make I was going to be appointed to the Constitutional Court. I found that deeply wounding that I would be party to an arrangement of that kind and I also feel that it is rather insulting to the commission itself and to the members of the Commission to suggest that any of you would be party to a deal of that kind. I was even more surprised because it quoted unnamed members of the legal profession as having interpreted the article which I wrote and I took the liberty of going to the Weekly Mail yesterday and picking it up again because I read it about ten times and I can see why they prefer to remain unnamed because I just hope that they interpret the Constitution better than they interpret the article. I have brought the copy with me but ...(intervenes).
Judge Corbett: Is this the article of April is it, that is referred to ...(intervenes).
Prof. Sachs: Yes.
Judge Corbett: In ...(inaudible).
Prof. Sachs: The rather dramatic heading is confessions of a tired freedom fighter and it was really, I was explaining to the readers why it was I had taken my name off the list of candidates for Parliament. And it was quite an emotional moment for me. It was like 40 years of my life coming to an end and many people were asking me why I had done so and I wanted to indicate it was not based on a sense of disillusionment or anything. I really felt mission accomplished. We have got the vote for everybody, we have got a Constitution, now I can get on with my life. And I mentioned in a paragraph here and I will be happy to leave it with the Commission if anybody wants to check on it, the basis for that allegation that I had done some deal or been given an assurance was the statement I made when I went to my last political meeting and I said to the people there let us have one good amandla, this is my last amandla. And I said where I am going there will not be many amandla's and on the basis of that statement it has been alleged about ten times in the press that some deal has been arranged and I was given an assurance. Perhaps it was a rather silly joke to make, but I can say that I have not made any amandla's since April. I do not live in the world of amandla's any more and I am certainly not proposing to give an amandla on this particular occasion. I really do not think it was very, the kind of journalism that one expects in relation to what is I think a rather wonderful project, creating the first Constitutional Court for South Africa, and it has caused me as I say a lot of pain.
Adv. Gordon: Where did you think you were going?
Prof. Sachs: I did not know, I said I was in free-fall and I said it is very exiting being in free-fall and it is very nerve racking. That I was out of the political light and out of the political arena, I did not know where I would end up. My two interests are Constitutional Law and culture and I had hopes that I would get onto the Constitutional Court and I indicated to people that I would be a candidate for that.
Adv. Gordon: Yes, I think the, well let us ask the questions directly. Have you been given any assurance by anybody that you would get on this court?
Prof. Sachs: I have not been given any assurance, I have not sought any assurance and I would not accept any assurance. It would violate everything that we tried to achieve in creating the constitutional State.
Adv. Gordon: Do you remember a Bill of Rights discussion you gave in Durban to Shepston & Wiley and you got concerned where the senior partner of the firm was taking notes and you thought that he was from the press and you were concerned with finding out what he was doing. Do you remember why you were concerned about that?
Prof. Sachs: I think once the candidacy, candidature, candidacy for the Constitutional Court became a real thing I felt that it was inappropriate to appear to be running for office or to be quoted in the press. I felt anything I had to say I should say directly to the members of the Commission. There was also I suppose another reason. To make that session a worthwhile one, one wanted to speak very candidly and very freely and to skate on as much thin ice as possible. And it would have inhibited me if I had felt the press was there and might sensationalize anything that was said. But in general for the past few months whenever the press has been present, I have asked them not to report what I am saying. I feel it is inappropriate to be involved in a kind of a campaign that would be appropriate for running for office for Parliament when one is a candidate for the Constitutional Court.
Adv. Gordon: Would it be fair then to sum up what you have doing Professor as a fair assessment of that you made it known that you would like to be a Judge on the Constitutional Court, but you have not sought any assurances or promises for that from anyone?
Prof. Sachs: Thank you for that assessment, if I might say so by way of a joke I said I would give my right arm to get on to the court.
Judge Corbett: Right, I think that brings that to an end. In your CV or rather it appears from your CV that you spent quite a lot of your time in Mozambique. I forget exactly from what year onwards, I think it was 1979 was it, or somewhere around there?
Prof. Sachs: It was from 1976 to 1988.
Judge Corbett: Yes. Can you tell us a little bit more about that, what the conditions were like, how the university functioned and the law faculty particularly?
Prof. Sachs: Yes. I think the first adjective that comes to mind is turbulent. I was, if I can just start subjectively, very thrilled to be back in Africa and to be in a country that was poor, that was newly independent, that was constructing a new legal system and I had some very wonderful moments there particularly in the beginning. The law faculty itself reflected most of the stresses of the society and it was closed down by the President in a rather peremptory way in 1983 because he was not satisfied with the quality of the candidates who were coming out. And then I moved to the Ministry of Justice where interestingly enough I had much more freedom than I ever had in the law faculty. The material conditions were extremely difficult. The first years were years of great optimism, but a number of factors combined to really crush all the optimism and a lot of bad things were done, disappointing things were done. Corruption set in, there was authoritarianism and at the same time a lot of good things were done. I would say of my 23 years in exile these were certainly the most rich years of positive lessons and negative lessons.
Judge Corbett: Of those 23 years which would you regard as your most enjoyable, if I can put it in those terms?
Prof. Sachs: In terms of sharing enjoyment strangely enough the year recovering from the bomb.
Judge Corbett: Really?
Prof. Sachs: Yes. In terms of sheer joy of living and getting better and feeling confident about ideas and what life was about and so on. In terms of interest, intellectually England was very interesting, I did a Ph.D. there, I did a lot of broadcasting. I was very much involved in a sort of legal intellectual milieu, not at the centre of things, I was not at the Bar, I taught at Southampton University which I would say is a very typical middle quality English university, had good friendships there and I think I learnt quite a lot. That Law does not begin and end in a South African court. I had much more vitality when I went to the United States, it is probably the nature of the society. There I was first introduced to constitutionalism and I had the good fortune of staying with Prof Jack Greenberg and Debby Greenberg about 10 or 15 times. They arranged speaker's tours. I went to all the universities there. And ended up spending four months at Columbia University teaching. And that was a very exciting period, I enjoyed that very much. But I would say for sheer drama, interest, almost too much, Mozambique was the country of the most intense experience.
Judge Corbett: You obviously have indicated that you would like to see yourself appointed to the Constitutional Court. What in your assessment would you be able to bring to the Constitutional Court of value?
Prof. Sachs: I hope you are inviting me to blow my own trumpet?
Judge Corbett: It is exactly ...(intervenes).
Prof. Sachs: And not to sound immodest. I think I am a good lawyer. I belonged to what we might call the golden age of the Cape Bar. Judge Leonard Hoffman, Van Zyl Steyn whom I met in England, I will not mention anybody else that might be present, at that stage and I enjoyed my ten years at the Bar and I think I was a good advocate. But I do not think that is enough that was to be a good advocate. I think the life experiences that I have had could be fed into the jurisprudence. I do not mean the human experiences so much, the experiences of trying to establish a legal system in particular in Mozambique. And looking, I was external examiner in various African countries and looking at the problems of very uneven sources of Law, systems of Law, the problems of pluralism and the problems of relating Customary Law to the State Law, to Constitutional Law. I would say in the literature that I have seen in South Africa this has been grossly underplayed and the debates are very strongly about limitations and strict scrutiny test or this test or the other test proportionality and I do not think nearly enough has been done in terms of examining what do we mean by Common Law in South Africa, how can you have a Common Law that is a Law that has in terms of its sources and origins the historical experiences of a small section of the community. Where does this huge experience of African dispute resolution and great wisdom that has been reflected to a certain extent in the whole negotiation process, where does that fit in to the formal systems
of Law. I do not think much thought has been given to that. I worked very closely on developing a new Family Law system in Mozambique and we had to confront all these problems. How can you have equal rights for everybody and at the same time acknowledge the diversity of culture and customs? I think looking at the other candidates and I am not trying to compete with them, but I feel that my experience gives me a special advantage in that respect. Secondly because I have not been in practise or on the Bench here I have had a chance to travel and it is my good fortune, there is no reason why my good fortune should count against me in this respect. I spent a week as a guest of the ...(inaudible) the President of the French Constutionelle as his personal guest in the court and had some extremely interesting discussions with him. I was the guest of Judge Harry Blackman of the United States Supreme Court after having attended a two-week seminar of which he was the Moderator and he was kind enough to take me to the Supreme Court and we discussed all sorts of issues including of course Rowan Wade. It was the case for which he is
best known. I managed to visit the German Constitutional Court, Hungarian Constitutional Court, and I have got some I think fairly interesting ideas on the division between what one would call a norm-control and conduct-control and I would say it is the function of the Constitutional Court to be responsible for norm-control and for the Appellate Division and the ordinary courts for conduct-control. And if I can explain the difference, this is an idea that I picked up in Germany and Hungary. Norm- control is, they use the word control for controlling constitutionality, it is testing the constitutionality of Laws, administrative instructions, principles, rules of evidence, matters of that kind of general application. Conduct-control is testing the constitutionality of the behaviour of State officials in the context of those norms. Now I would say that if the Constitutional Court had to examine each case in which it is alleged that a police officer violated the constitutional rights of a householder it would absolutely flooded out with cases and would hardly be able to cope. On the other hand that is the function of the ordinary courts and the fact that
it has a constitutional dimension should not deprive the ordinary courts, I would say including the Appellate Division, of that kind of determination, concrete cases. But the outer limits of constitutionality, the principles that should be applied I think that is really the function of the Constitutional Court rather than the concrete facts of a particular case. It might be the concrete facts of a case enable you to test constitutionality of the principle in a real sort of a way. Well, I am just giving an idea of something that I picked up on my travels. The possibility of comparing practise in South Africa with the ethos atmosphere type of legal reasoning in England and in the United States and in Mozambique, well I lived in all those different countries and I was involved in teaching Law in all those different countries and I feel that I would be very happy to contribute that. Actually I have left out something that is possibly as important and it is very sensitive, but there is no reason why I should not mention it. The work I did together with Oliver Thambo in the legal department of the ANC for me was I would
say the most difficult of the tasks and responsibilities that I had and the most important in terms of teaching one what Law and justice and Human Rights is about under real pressure and in its essence.
Chaskalson J: Prof Sachs, you said that you really learnt about constitutionalism while you were in the United States, what year was that approximately?
Prof. Sachs: I first went there in 1974 and I met Jack Greenberg in 1976 or 1977 and it was really from 1978 onwards ...(intervenes).
Chaskalson J: 1978 onwards.
Prof. Sachs: Yes, that I stayed with him and accompanied ...
Chaskalson J: As a result of that experience did you give practical implementation in any way to what you had learnt, as you said your conversion to constitutionalism. We know you have written a great deal about it but could you talk about what you may have done as a result of becoming a convert to constitutionalism?
Prof. Sachs: The conversion was a long and a slow process. Going to the United States certainly opened my eyes to its virtues but also to some of its defects. I would not regard the American model as the ideal model. It is the great prototype. I think everybody has to study it. What worries me in the United States is that often the constitutionalism ends up paralysing society and when you end up with doctors being shot because of a Supreme Court decision on abortion whereas in Germany they have seemed to have found a proportionality approach that does not end up with war in the streets on that issue. I would say that one has to be quite eclectic in this respect. But many things were happening at the same time. The American experience certainly emphasised for me the importance of having a body of people up there outside of the political system being able to determine issues of very great importance for the, if you like, the public morality of a country that was not enough in itself. The negative experience of Mozambique was extremely important for me. We had a Constitution that promised all sorts of things to people which I believed in and I supported, but in practise if your husband or your neighbour was locked up, there was no concrete remedy and the Parliament could do what it wanted. And
it was seeing these failures of promises, failures to have concrete mechanisms to secure rights for people that I would say had more impact on me, the negative experience in Mozambique and I can repeat that in relation to other African countries I went to. Then when it came to the stage of envisaging a new Constitution for South Africa I could see how important constitutionalism would be to unite the South African nation because there would be the idea of these common values that would appeal to black and white and brown, rich and poor and so it was very important to avoid the fragmenting of Parliament. Instead of people's rights being protected through being represented by their race or their language in Parliament the project was we can protect people's rights through constitutionalism and a Constitutional Court. So it was a number of streams flowing in the same direction. I might say when I became a convert I think I became a pretty ardent convert and convinced myself and I hope convinced many other people that it has very, very great virtues and when I go to England now it gives me great pleasure to be a
little bit disdainful of the Westminster system and to encourage them to have a Bill of Rights and a Constitutional Court in the United Kingdom.
Chaskalson J: You were very active in ANC affairs and ...(inaudible) national executive. How do you see that in relation to holding office on the Constitutional Court?
Prof. Sachs: I am very happy about the work I did in the ANC, I worked primarily as a lawyer and I think I can say without any false modesty I fought for Human Rights all the time, in secret, I mean in confidential meetings, publicly and I am very happy that I was able to contribute to the culture inside the movement where I was. But that phase is over. We have got a Constitution now. I was elected to the National Executive Committee I am sure because I was a lawyer and we were entering the phase of negotiations and it was felt appropriate to have people who could explain to the members and to help develop policy in relation to constitutionalism. I might say that I do not think that it is a disadvantage to the court to have a member who has had political experience and I say this with the confidence I got having been to Germany. Prof Grimm who
was here recently mentioned to me that he thought he would never be appointed to the German Constitutional Court because he was not a member of any political party. All the Judges there have political backgrounds. That is accepted. The test is not whether or not you are being politically active and involved, the test is do you have the independence and the credibility as a thinker and as a person to work well. And the feeling there is that if you are going to have somebody who is going to act a brake on Parliament, a brake on the executive, it is better to have people, at least some of the Judges who know the mechanisms and the working and the thought processes to be able to be most effective in that respect. And if I can just mention again, make a little comment on the very, very helpful and I would say inspiring guidelines that we received, I feel the one aspect that was left out and I offer it for what it is worth, I am not here to judge the Commission, but I just throw it into the pot, is and I am going to drop another name now, Chief Justice Dickson to whom I spoke recently in Canada when I was part of a group looking at Federalism
there, he spoke about and Judge Bagwati the same thing, what he called judicial statecraft. It is not enough just to be honourable and clever, you are working in society and you are relating to other institutions of Government and a good Constitutional Court functions well within that context. And I think that from that point of view a little bit of experience in the world outside of the courts will not be at all damaging to the court and I will be happy to contribute that.
Adv. Bizos: Prof Sachs I do not know if it is as a result of modesty, but you have not told us or some of us on this Commission the important, what I consider to be the important role that you play in getting both the African National Congress and one hopes others, to a Human Rights culture and the adoption of a Bill of Rights and provisions of the Constitution to protect them. When did your initiative in relation to these matters within the ANC, when did you start, how much effort did you have to put into persuading the liberation movements to accept what we have as a Constitution as a final result. Would you like to tell the members of the
Commission about that please?
Prof. Sachs: Yes, it was in the mid 1980's, it is about 10 years ago the process started. And it assumed the form of papers and direct argument about 1986/1987. And I might say that there was very great resistance. A Bill of Rights was seen as what somebody called a Bill of Whites. It was seen as an instrument to protect the property, the privilege of a small section of the community. And I had to argue quite strongly against that. And I did so inside the ANC, I did so in published works and I gave three basic motivations which I think might be of interest and that was not for in public or for the press, this was in internal meetings. I said firstly in political terms it looks terrible if the ANC is against a Bill of Rights, but I said that is not a real reason for adopting a Bill of Rights, that is an extra factor. I said secondly in terms of the whole constitutional project it is really fundamental because the people opposing one person one vote is saying that if you have majority rule in South Africa the whites do not stand a chance and so a Bill of Rights is the answer, it is the answer to having racial blocks
in Parliament. It is saying we will build in mechanisms that will defend anybody against oppression and it was the actually the central constitutional conflict at that stage. And then if I might be as immodest now as I was modest earlier, but this took courage on my part, the third thing. I said to the people there but there is a third reason and that is many movements that have been liberation movements and they have got into office have ended up denying the rights of people and oppressing people. And it took courage for me to say that in Zambia in 1986/1987. And I am happy to say that the audience, I saw recognition and acknowledgement and it was very heart-warming for me to see that the people knew what I was saying and accepted what I was saying. And there was almost a sense of relief that somebody had said it because they had seen it from the countries they were living in and I might say that I said it then and I am happy to repeat it now. When I gave my inaugural lecture at the University of Cape Town the whole theme was, it was called perfectibility and corruptibility. We aim for perfection but we guard against corruption. And
there is a very bitter saying in Africa, the beautiful generation is not yet born. People are disappointed by independence and they see people who spend their lives fighting for freedom ending up looting the coffers, behaving in an authoritarian way and to me that would be the biggest betrayal of everything you stood for, everything we have ever done. And so the dignity of the Constitution and the maintenance of these fundamental values is more than just something good, I think it is precious in South Africa and needs to be guarded.
Mr. van Zyl: Prof Sachs you have suggested that it would be no bad thing to have Judges on the Constitutional Court who have had political experience and exposure to politics and that political awareness would be an essential ingredient so to speak of the court. Do you believe that the court should apart from being representatives of race and gender also reflect a political balance?
Prof. Sachs: In Germany they attempt something of that kind. So I would not say it is automatically bad. And the German Constitutional Court has enormous prestige and certainly impressed me very
much. I think in South Africa it is not appropriate at this stage to introduce factors of that kind. I think at this stage the main emphasis has to be on integrity and probity. But when it comes to the final development of the constitutional order and the Constitutional Court I think one has to explore all the different possibilities. At the moment the last word for the six nominees is with the Government. It is a Government of national unity which does give something of that spread, but one cannot assume that there will be a Government of national unity in perpetuity. So who is going to give that balance afterwards. In Germany it is done through Parliament and a very high majority being required and that is one way of getting a kind of a balance. They also balance for region, they balance for a number of different other factors as well.
Mr. van Zyl: Perhaps it should reflect the diversity of society.
Prof. Sachs: We are such a diverse society that I think eleven would not be enough to make sure one sector, one Judge.
Adv. Gordon: Professor, we have asked this of a number of our candidates, but you are
the candidate who has had the highest political profile. If selected to the Constitutional Court are you prepared to resign from your political party?
Prof. Sachs: I think it would be inappropriate to be a member of a political party.
Adv. Gordon: Inappropriate?
Prof. Sachs: It would be inappropriate and on the Bench.
Adv. Gordon: I take it as well Professor that you do appreciate for yourself personally that there would be a burden upon you to be able to display the independent qualities required of a Judge, particularly when you are sitting in a court which is going to come into conflict with a government of which many of your friends, associates, comrades ...(inaudible) and are you comfortable about that?
Prof. Sachs: I am more than comfortable about that, I think it is really our duty to maintain the integrity of this whole process that we negotiated. We all derive our functions from the same Constitution and we are all answerable to that Constitution. And Government, whatever hue it might be, is answerable to the Constitution. The ANC contributed towards achieving the
Constitution, the ANC cannot complain if the Constitution which it has helped to create is used to impede certain things it might want to do. But personally, subjectively, I think I can honestly say that I would, the two danger subjects that I face is I must not be over eager to prove my independence by striking down ANC supported measures just to prove to the world and to ingratiate myself with certain people to show that I am independent. I think that would be very, very wrong. And secondly I seem to be a bit puritan and a little bit harsh in my expectations of people and I think that, I do not think one can be, one needs a certain measure of listening to others and a certain breadth I think if one behaves as a Judge. But I feel that if I have weaknesses in that respect it would not be a tendency to favour any particular group.
Adv. Gordon: You do realise of course that you of all people will have the hardest job to persuade the general public that you in fact achieved that?
Prof. Sachs: Yes, although of course the general public is very general. A section of the general public I think might feel, and again I am blowing my own trumpet,
but might feel comfortable that if Albie Sachs who has suffered quite a lot to bring freedom to this country is party to striking down a Law it is not done on the basis that he is a privileged person, he does not know our suffering, he does not know our pain. I think it would give credibility in circumstances where otherwise there might be a tendency to say well it is easy for them, they do not know. This is just speculation on my part. But there is another section of the public and I can fully understand why, particularly in South Africa, we do not have a tradition of people moving from a political life into the legal sphere or where it has happened in recent memory, it often has not been very felicitous. So I can understand that there will be a certain suspicion and the spotlight will be on me. I hope I will behave in the same way as I would behave if the spotlight was not on me. I might mention I get some comfort in this respect from the fact that people like Judge Bagwati who took part in the freedom struggle in India proved to be a brilliant leader of the Supreme Court in India and Earl Warren who was the Republican Governor
in the United States turned out to be the head of probably the most influential Supreme Court in the United State. The present President of Germany was the President of the Constitutional Court and before that he was the premier of one of the Lander from the Christian Democratic Union. So if one looks at international experience it is certainly not unheard of that people have been active in politics and gone on to become very good Judges. I hope I am as good as some of the, if I should be appointed, as some of the people I have mentioned.
Adv. Gordon: As opposed to some Judges like Tielman Roos who were politicians and then became questionable Judges.
Prof. Sachs: Perhaps I have left the best till last. One of my, I do not like the idea of role-models, but somebody whom I admire very much is Sir James Rose-Innes, possibly the greatest perhaps that South Africa has produced and he was Attorney General in the Cape, very active in public Parliamentary life. He took stands on all sorts of issues and I think that all round he turned out to be the most, and he was also President of the Transvaal Court at a time of
reconstruction and development and he showed the creativity and the balance that I find quite admirable.
Prof. Mureinik: Prof Sachs, you have written so elegantly and so widely in this field that I do not know where to begin, but I hope you will bear with me if I traverse with you some old debates that we have had. Two years ago in your book Advancing Human Rights you said there is no justification for anything to be in the Bill of Rights which does not have a plain meaning immediately evident to any literate or listening person. Any person reading the Bill of Rights should be able to see at a glance what judicial review is all about. While we should have the fundamental right to go to our lawyer we should also enjoy the even more fundamental right to know what our basic rights are without having to go to a lawyer. This aspiration to simplicity is it realistic to expect all one's constitutional rights to be entirely self-evident to any literate or any listening person as you put it? Would it not impoverish our constitutional jurisprudence if everything had to be reducible to that level of simplicity?
Prof. Sachs: I think that the Declaration of Rights
that we have ended up with is in its fundamentals is accessible in that way. But the reason I think I wrote that particular passage was that there was a proposal simply to say a judicial review shall be constitutionally protected. Now we know what judicial review is, but somebody picking up a document will not know what judicial review is. So what I wanted was the essence of judicial review, the fact that administrative decisions should be subject to the scrutiny of the Judges and the criteria that should be used, that should be spelt out and that has been spelt out. I might say since writing that I helped to organise a conference on judicial review and I felt it was extremely rewarding in developing some of these ideas and some of the criteria. But what I was really arguing against and I still defend that, is the attempt to have an extremely erudite Bill of Rights that ordinary people cannot understand because a Bill of Rights is about the rights of ordinary people. That is so intricate and has a language that is so involved that you have to go to a lawyer to find out about the right to life, about the right not to be locked up
without a fair trial and so on. I think that is in essence what I was getting at. To say that you solve all legal problems simply by declaring the right to life clearly is not so. And just in conclusion the European Convention on Human Rights to my mind is a model of clarity and accessibility. It is not incapable of being understood by ordinary literate people.
Prof. Mureinik: You developed this line of thought by saying that obsession with doctrinal nuance may make all the different between winning and losing a case or passing and failing an exam or getting an article accepted or rejected. It is of barely marginal importance when we are planning a new Constitution. And you went further and you said the least important element in ensuring the success of judicial review will be getting the doctrinal details right. How important do you think constitutional doctrine is?
Prof. Sachs: Constitutional doctrine is fundamental, it is central. But the doctrinal details are the difference between legitimate expectations and the right, it is something that has to be worked on, but that is not the essence. And
what was worrying me was the debate at that stage was simply on the meaning of legitimate expectation. The debate was not on the broad central role and function of judicial review, its relationship to Parliament, its relationship to insuring decent, good Government in society and I wanted to open up the debate. If I can just mention after you, Prof Mureinik, pointed out to me that many law students were using that particular passage as an excuse not to study the doctrinal detail I actually amended it and unfortunately my revised article was not published in the book that appeared afterwards because I did not want that to be an excuse. I think we have to be experts on doctrinal detail, but doctrinal detail have to be located in the broad sweep of doctrine and not become an excuse for not reaching the central tenants of doctrine.
Prof. Mureinik: Prof Sachs in the same article you criticised the Law Commission's proposed Bill of Rights. They had suggested what you, I think correctly characterised as a right to take out health insurance and you favoured something much larger, a right to health. And I think you 6/10 correctly/...
correctly pointed out that the notion of including in the Bill of Rights just a mere right to take out health insurance was really a pathetically silly right to include in your Bill of Rights. If one was going to constitutionalise socio-economic rights you wanted to go the whole hog and develop a socio-economic rights jurisprudence here. But then you went on to say and this is the part I find a bit puzzling, you said if we do not have, if we follow the Law Commission's approach, if we do not have a full blown right to health, then that would put in constitutional jeopardy any effort by Parliament to bring forward a national health system. You said following the Law Commission's approach if we followed the Law Commission's approach then administrative steps to promote the concept of a national health service such as in England or Ontario could be reviewed right out of existence. The grounds would be that substantively it violated the Constitution, procedurally it conflicted with natural justice and metaphysically it went against the Laws of Creation. Why do you think that if you do not have a right to health in the Constitution
that makes a national health system constitutionally vulnerable?
Prof. Sachs: It could make it vulnerable depending on the other terms in the Bill of Rights. If you had freedom of economic activity as and enshrined right without qualification then any compulsory deductions from wages to finance that system could be seen as an interference with the Law of Contract and a violation of free economic activity and you could not have a national health service such as you have in England or you have in Ontario without a form of compulsory contributions from wages and from employers. Similarly doctors could be required to give a certain portion of their time to national health service, that could be seen as a violation of their right to choose their patients completely as they wished. I am not saying that that should be done, I am saying it should be an option, it should be open to Parliament. So it could be a violation in that sense.
Prof. Mureinik: I would have hoped that a national health system would be something so obviously necessary that unless it was brought forward on an irrational basis any respective or Constitutional Court
would uphold it and one would hope that it would not be challenged. Just a bit puzzled by the notion that you could attack the national health service if you did not have a right to health in the Bill of Rights on the ground ...(intervenes).
Prof. Sachs: Can I just qualify that by saying that I do not think one has to have a right to health in a Bill of Rights to protect the national health service.
Prof. Mureinik: To protect the national health service.
Prof. Sachs: It depends on the other clauses. At the moment in the interim Bill of Rights, declaration of rights the right to the health of the child I think if I remember correctly is protected. I am not quite sure how that becomes justiciable and operational but it was somehow felt to be so important and such a significant constitutional statement to make at this stage in the development of our society that it ought to go in. Then it is going to be our intellectual problem to make it meaningful.
Prof. Mureinik: Yes, that is of course a different reason for having it, I am just worried about why you need it to save the national health system from challenge. I understand now what you mean when you
say the ground would be that substantively it violated the Constitution. That is on the supposition that the Constitution entrenches a right to economic activity and a right to freedom of contract. What did you mean by saying that alternative grounds would be that procedurally it conflicted with natural justice and metaphysically it went against the Laws of Creation. Why would, procedurally, why would the national health system conflict with natural justice necessarily?
Prof. Sachs: No, if the regulations were done say on a sweeping basis that all doctors must contribute or all employers must do something it could be challenged on the basis that it is depriving individuals, I forget exactly what I had in mind when I said that. I remember the last one, the creator one, that was a response to a statement in the Law Commission report that it is nonsense to speak about a right to health, the Creator gives and takes away health and it is not something that belongs to the domain of rights. And that is why I suggested rather tongue in cheek that it be a metaphysical violation as well as a legal one.
Prof. Mureinik: If I could just turn to a different right now, the right to personal liberty. In 1990 you were a member of a four member commission of inquiry appointed by the ANC's national working committee to inquire into the death in detention, in ANC detention of the MK Commander, Thami Zulu. One of the questions you were asked to answer was was the length of the detention unreasonable. Thami Zulu was detained for 14 months, of that period eight weeks was in effect in solitary confinement as your report put it. In answering the question whether 14 months including eight weeks solitary was unreasonably long, you report said:
"Some of us felt that the time taken was too long and that the length of the detention was influenced by a certain unwillingness to let go and a determination to prove that security was right. Others felt that in all the circumstances if it had not been for the tragic outcome because of the factor of disease, (Thami Zulu was HIV positive), no one would have said that the length of the detention was unreasonable". Your answer to this dilemma was: "We
leave it at that. The crucial question is to have objective criteria, not after the event judgments such as we are being called upon to make".
In other words some of you on the commission felt that the detention was too long, others felt that it was not too long and the answer was: "We leave it at that". Was that a, do you think now with hindsight, that was a satisfactory way of answering the question?
Prof. Sachs: Just one or two little corrections, he did not die in detention, he died ...(intervenes).
Prof. Mureinik: Shortly after his release.
Prof Sachs: Shortly after coming out of detention. Well I was amongst those who believed it was far too long but I could not persuade the others, we were split two- two. But the important conclusion we drew from that was that there had to be time periods laid down in the ANC code of conduct, that was the most important thing, to ensure that it did not happen again to anybody else. I might say that this case was the first time I had ever sat "as a judge" and I entered it with a sense of indignation, I had know Thami Zulu and people do not just die after
detention. And I was eager to write a strongly critical report exposing security. But we heard the evidence and it came from five doctors. The fifth doctor was a personal friend of Thami Zulu and Thami had stayed with him immediately after detention and reported to him he is very, very distressed but made no allegations of physical ill-treatment at all. And then we examined the blood, the post mortem report. I had some experiences at the Bar in cases of that kind, and there were almost too many causes of death. It was HIV, it was poisoning, it was to add to everything else. It was TB that was HIV related and the pulmonary failure which was TB related. So we could not make the finding that I personally would have wished to have done at that stage in the sense to put security to terms and to ensure that these things did not happen. In terms of whether or not there was sufficient evidence to detain him, we felt there was sufficient evidence in the basis of there was reasonable suspicion. We spent most of our time questioning the security people to see on what foundation they kept him. We gave the conclusions about cause of
death that I have just mentioned, so the issue that remained was the length of the detention and maybe because I had been in detention nine days is a long time and it was nine months, I think, I do not think it was 14 months ...(intervenes).
Prof. Mureinik: 14 months according to a report.
Prof. Sachs: Was it 14 months. It was eight weeks, about eight weeks in solitary confinement.
Prof. Mureinik: Yes.
Prof. Sachs: Apart from the eight weeks he was in a flat most of the time, he had TV, his parents were able to visit him, so he was not like in jail, it was a form of house arrest. And the report goes on to say, I do not know if you have a copy there, but the big thing is you cannot just keep someone as a suspect, you have got to make up your mind, and if there is not sufficient evidence to hold someone, even in the midst of the total onslaught and the struggle against apartheid and people being bombed and killed and all the rest, you have got to make up your mind. If there is no evidence you release and our final conclusion was you cannot say he died with a question mark over his head. If
there was not sufficient evidence to say that he was an enemy agent, to use the terminology we were using then he must get a decent burial and it is not proved and that was really the approach that we adopted.
Prof. Mureinik: Prof Sachs you have just said you have got to make up your mind. The problem was in this case the commission was asked to say was the detention too long and it did not make up its mind, it said "We are divided and therefore we leave it at that". You say you were in the minority which felt the detention was too long. Why did you not file a minority report?
Prof. Sachs: I think the separate report I do not think would have made much difference. the separate opinions were already contained in the majority report. But I might mention as well that this was, the report came after 2 February 1990 and now it was a question of really closing down all the detention places. We were in a totally different phase already by then.
Prof. Mureinik: If the Constitutional Court had to decide whether a detention was too long, for example under the state of emergency provision, could it ever say "Some of us
feel that the detention was too long, some of us do not, we leave it at that?"
Prof. Sachs: I would hope not.
Prof. Mureinik: You have also raised the question of the initial, or the initial detention, was that satisfactory. If I could just link together two parts of the report. One question asked you to decide whether there were grounds to arraign Thami Zulu as an enemy agent and you said: "The test is to justify arraigning him as an enemy agent there has to be something tangible that directly implicates the person concerned". And your answer to this question was that there was not. There was not the kind of evidence which would justify arraigning him on the grounds of being an enemy agent.
Prof. Sachs: No, that is not a correct interpretation of the, I nearly said the judgment of the report.
Prof. Mureinik: I think you did say that he could have been arraigned on the grounds of negligence, that he had not conducted himself properly as a commander, but there were not sufficient grounds to arraign him as an enemy agent.
Prof. Sachs: Oh, okay. Sorry, I beg your pardon, you are correct and I am wrong on that. It is the word arraigned that threw me.
Prof. Mureinik: Yes, it is the word from your report.
Prof. Sachs: The first question was were there sufficient grounds to detain him and ...(intervenes).
Prof. Mureinik: Sorry, I have not completed my question. On the question of arraigning him as an enemy agent you said the test is there must be something tangible that directly implicates the person concerned and then you found that there were not grounds to arraign him as a suspected enemy agent.
Prof. Sachs: Yes, correct.
Prof. Mureinik: It is entailed in that, that there was not something tangible that directly implicated him. That being the case why was the initial detention justified? Surely for an initial detention you would also want something tangible that directly implicated the person concerned?
Prof. Sachs: No, for initial detention you need reasonable suspicion to use the test that we are familiar with in terms of criminal procedure. You do not need a prima facie case and to put it simply that was the difference as we understood it.
Prof. Mureinik: If I can just change tack and go back to your writings. You have written the following ...(intervenes).
Adv Trengove: Could I first pick up on the Thami Zulu point?
Judge Corbett: Yes.
Adv. Trengove: Professor could I ask you in this regard and what I would like to concentrate on is your approach to the acceptability of detention without trial. I am not suggesting for a moment that Thami Zulu was abused in detention. But you said in your report that he ended confinement as a large, well-built, slightly overweight person. He came out gaunt, frail and almost unrecognisable and he died a week later. He was detained for 14 months of which six or eight weeks was in solitary confinement. And you also reported that the panel investigating him concluded very early on, soon after his solitary confinement, that they did not have a case against him for being and enemy agent. Did those circumstances not call for a strong condemnation of his prolonged detention without a trial?
Prof. Sachs: Well I felt so.
Adv Trengove: Well you did not say so, you said merely if your view was the one reflected here as the one view, you said merely that it was too long. There is no condemnation at all, simply a view that it might have been too long.
Prof. Sachs: I think there are various passages if you look right through that indicate a condemnation, certainly of the period in solitary confinement and ...(intervenes).
Adv Trengove: No, I am talking about the length of detention without trial. Is the principle not quite unacceptable that people should be detained for 14 months without a trial?
Prof. Sachs: Yes, it is and I thought so.
Adv Trengove: Should you not have said so that it is unacceptable under any circumstances?
Prof. Sachs: You know what I did not want was a minority report.
Adv Trengove: Why not? Why not, is the principle not sufficiently important?
Prof. Sachs: No, because a minority report in that context would have been weaker than a majority, a consensus report that actually raised the issue.
Adv Trengove: A consensus report that comes to no result, it says there are some views this way and other views the other way and we therefore let it be. Was that a satisfactory outcome?
Prof. Sachs: I think a three to one minority would have been more propitious, more favourable to continuing that kind of a thing than the statement that we had. But just remember this was not a question of published judgments that people are going to look at and find the sense and all the rest, this was a report to the national executive committee.
Adv Trengove: Did your own independence and integrity not demand that you put an unequivocal condemnation on record?
Prof. Sachs: The issue was not my independence, the issue was to ensure and to prove that and to prove that I was an honest person.
Adv Trengove: Should the issue not have been your independence?
Prof. Sachs: No. The issue at that stage was to ensure that ill-treatment of people did not manifest itself, did not continue.
Adv Trengove: Is prolonged detention without trial acceptable under any circumstances?
Prof. Sachs: No.
Adv. Trengove: In any society?
Prof. Sachs: No. You know if I can just comment on that because it affected me very personally. We went to the place where he was detained and it was an extremely harsh moment for me because it took me back to my detention. And when I went back to the hotel that night I wept, literally I wept. When I came to Cape Town in 1990 after 23 years absence, the first public meeting I had was at the University of Cape Town. And I said there is something I want to tell you. It was a time of great euphoria. I said we in the ANC tortured people, I felt I had to account to all those people who were looking to me and who believed you know here was somebody returning, a wonderful story, back to my own university, and I actually said I visited one of the detention centres and afterwards I cried with the emotion because to me there is no such thing as their detention, our detention, their bombs, our bombs, detention is detention. It affected me very much.
Adv. Trengove: Does the report not suggest that you are prepared to be tolerant of prolonged detention without trial if the circumstances are dire?
Prof. Sachs: I think it is a fair reading of the report, it is certainly was not a fair reading of my state of mind at the time.
Adv. Trengove: Why does the report not fairly reflect your state of mind?
Prof. Sachs: Because the report was produced in a totally different way. I think you are imagining that we were a court sitting in a country with all the ordinary investigative and reporting procedures.
Adv. Trengove: No, I am not imagining that at all, you were a commission of inquiry, you produced and erudite piece of work obviously after a thorough investigation and came to a very feeble conclusion on something which I would have thought would have been fundamental to someone like you for whom Human Rights is an important principle.
Prof. Sachs: You know Adv Trengrove the issue there was not a bit of what I might call personal grandstanding. Our big concern or my concern subjectively was to ensure that the ANC which claimed to be a liberation organisation fighting for freedom had a code of conduct and had principles and norms and standards that would prevent abuses of that kind from taking place. That was my main concern.
Adv. Trengove: I understand that, but ...(intervenes).
Prof. Sachs: Whether I could have achieved that better by filing a minority report or not, I do not know. I would say knowing the ANC, knowing that this was going to be a report going to the national executive committee on the agenda with all sorts of other questions, I felt it was better to put it on that basis that
we could not agree. That was my subjective feeling at the time, that would protect people in future and ensure that the big gap in the code of conduct would be remedied far more than if they said oh well Albie Sachs, we know he is a lawyer, it is okay for him, he is soft and he is just influenced by these kinds of ideas. That was my subjective judgment as far as I can remember at the time.
Adv Gordon: Professor, with the greatest respect I regard that answer as appalling. I think what Mr Trengrove is asking you to do is to give us an explanation as to why, when this something which was close to you because you yourself had suffered even more grievously in the sense of your physical injury, why did you not at that stage as a lawyer, as someone who should by nature be against detention without trial, write clearly that this was wrong and it should not be allowed to happen again and you would not sell your soul for the sake of unanimity. Do you have any explanation to why you did not take that step?
Prof. Sachs: I did not sell my soul Adv Gordon, I think my soul is not for sale.
Adv. Gordon: Well all right, I used emotional words,
for the sake of getting a four nil decision rather than a three one?
Prof. Sachs: It was a judgment at that stage in terms of what would be most effective in ensuring that the code of conduct was revised in order to prevent that kind of thing from happening again.
Adv. Gordon: But do you not think by being a minority person and shouting it out from the rooftops that you would have achieved in a far more marked way that very result?
Prof. Sachs: No, there were no rooftops to shout it out from. We were giving a report to the national executive committee, I would not even be at the national executive committee to present it. The other issue there was also the relationship with the other members of the commission and they had a right to be heard and to present their opinions as well. I tried very hard to persuade them that this was far, far too long. I argued as strongly as I could. I could not persuade them. So instead of simply accepting the majority decision, I indicated to the extent, I insisted, that the text of the report would indicate that there was a division of opinion on that. But we were all agreed that in future there ought to be clear guidelines on that question.
Senator Radue: On a completely different subject.
Judge Corbett: Yes, does anyone want to pursue this?
Prof. Mureinik: Just one final question on this issue Prof Sachs. You said earlier when you were questioned about your independence and whether you would be perceived given your devotion to the party which, your life long devotion to the party which is now the leading partner in Government, whether you would be perceived to be independent. You said there are some sections of the community which would take this view when a Law of Parliament was struck down. Albie Sachs who has sacrificed himself in the struggle to free this country has gone along with striking down the Law so it is okay. Would that not have been the attitude if you had written a minority report here? It seems to me there is a certain sort of contradiction between you saying it is very important for you to be part of a court which strikes down a Law so that your own personal history gives legitimacy to the striking down of a democratically chosen Law. On the other hand when the choice you were confronted with was whether to write a minority report you did not think that the community would say well Albie Sachs has filed a minority report, he sacrificed himself for the struggle, we had better sit up and listen. You thought they were just dismissing you as a soft white lawyer. How do you reconcile those two positions?
Prof. Sachs: I thought there was a danger that the, I was surrounded if you like by Albie Sachs' people who had made all sorts of sacrifices. I was not any different from the other members of the commission in that respect. And it is so easy for people in security to get the word around that we are the ones, we are defending the struggle, and is easy for Albie, he has not suffered like we have suffered. He has not lived in a township and so on. And we are the ones in the front line and it is easy for him to say that.
Prof. Mureinik: One last question if I may. On a totally difference subject. You have written the following, I find white society whether in South Africa or elsewhere surprisingly brutal, unfined and unsubtle. In white society we honour people for their riches and power and the number of records they sell. We even honour paintings for the amount for which they are ensured as they lie in the vault of a Japanese bank. In Mozambique we honoured people for their warmth, kindness, skill and wisdom, for their wit, courage and human delicacy. Do you think that that affects your capacity to dispense justice impartially or to be perceived to be dispensing justice impartially?
Prof. Sachs: Really you know I think that the point I was making there is that whites are, often regarded themselves as civilised and having superior culture and blacks as being less civilised and we have to educate them and simulate them into our culture. And my whole experience in Mozambique and elsewhere was in terms of personal pact and dignity and respect for human beings and if you like human solidarity. I found a much greater richness and you have asked me the question, I am not making a speech here now, I am just responding to your question, a much greater richness at the human level in African society than I found in our highly competitive white society. But it was really to negate what I regard as a very false kind of a view. I am a white person, I live in white society. I do not repudiate my background or my past and we are all South Africans, we are looking for common values all the time, but I do not think we advance our achievement of common values by insisting that one group has to adopt the lifestyle and culture and ways of any other group. We have to respect people as they are.
Judge Corbett: There seems to be a bit of a contradiction between that statement and what you told us earlier about your experiences in Mozambique.
Prof. Sachs: These are the experiences at the ordinary human level in day to day contact. The other experiences related to Government and governmental behaviour. If I might say so Chief Justice, the worst problems are the problems caused by good people, not by bad people. When bad people do something wicked and evil you can see it and you fight against it. When good people do something with good intentions and good motives that ends up undermining society, reducing the respectful human beings it is much more difficult to cope with. And that was perhaps my hardest bitter lesson in Mozambique and for the best often of motives and intention I would see people, Shamora Marchelle, whom I admired very, very much and often find myself quoting him, became extremely authoritarian in the last years of his life for the best of motives and it was felt that you could solve all these problems simply by raising consciousness and getting people to be good. And it became very clear to me that the answer was not that, it was to have a 48 hour rule in terms of which people have to be brought before court, to have lawyers, to have independent Judges. In other words the institutional mechanisms became very necessary. But I would like to say also in terms of culture in Mozambique, I got very involved with the painting of murals, with the dance school, with photography, with theatre, it was a very rich and still is a very rich country in that respect, that actually has a lot to teach South Africa.
Senator Radue: Prof Sachs, you referred to the right of life and it is a matter of public record that you are in fact in favour of the abolition of the death sentence. Were such a question to come before the Constitutional Court and were you sitting on there could you be objective about it, what would be your attitude, how would you go about facing such a challenge?
Prof. Sachs: Yes, it is quite true, I think we have even debated the question ourselves and I have campaigned strongly and with conviction for the abolition of capital punishment. And that was my right as a lawyer, as a citizen and as a member of the ANC because it was ANC policy. The function on the court is of a completely different one. Does the Constitution looking at it as a whole, require the abolition of the death penalty, does the Constitution require that this is a matter to be left to Parliament, I do not know. It would be premature to offer an opinion on that. I think one would have to look at very much judgments in other parts of the world. In the United States they do not have a right to life, they have a cruel and unusual punishment.
Senator Radue: So you would have an open mind to the situation?
Prof. Sachs: Certainly. In Hungary the Court said the proportionality test cannot apply to the right of life because you cannot kill someone for ten minutes and so they struck down capital punishment in Hungary. I do not know if that is the correct answer or not.
Senator Radue: Thank you.
Senator Mchunu: Prof Sachs, since the dismantling of apartheid, there has been criticism of there was criticism even before that of Judges who operated within the apartheid milieu and some of the justifications that some of the Judges did give at that stage was that they operated within in the milieu, sometimes with the intent of mitigating some of the oppression that was visited upon the disadvantaged by the past structure at the time. Would you agree with the proposition that such Judges should have in fact given up their offices? The so-called ...(inaudible).
Prof. Sachs: I was frequently asked that question internationally and I said that I could never myself accept a judicial appointment if it involved applying laws that were racist. But on the other hand when I practised as an advocate I was very happy to see certain Judges on the Bench. It saved people's lives, it enabled us, it gave us the space to expose torture, it humanized society just that little bit. So my approach was not to support those who said the Judges ought to resign.
Senator Mchunu: But do you also agree that in terms of the Human Rights culture we are talking about many of the judgments that were given, whatever the motives might have been, were very feeble judgments?
Prof. Sachs: I think one of the judgments is the case of Rossouw v Sachs where I had the vanity when the judgment in the Cape Provincial Division came out to feel, that was a question of whether or not as a detainee I should be entitled to reading matter and writing materials, and the Law was completely open on the subject. What precedent there was favoured the granting of such materials and the judgment I liked very much by Judge Rose-Innes, the Cape Division ordered that I be granted reading matter and writing material and if it had not happened I probably would not be here today. So I was very happy. The case went on appeal, fortunately for me I was already out of prison when that happened and the Appeal Court took a completely different position in which, well I do not think I can be objective on the subject, so I will not qualify, but legal writers have criticized that as being one of the worst judgments on a Human Rights question to be produced by a South African court.
