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Albie Sachs, Judge
of the Supreme Court of South Africa stated as follows:
On the
14th February 1995 Nelson Mandela got to his feet
and spoke about the last time that he had stood up in Court
which contrasted starkly to his duties now in inaugurating the
South African First Constitutional Court.
The
Constitutional Court was appointed by Nelson Mandela as
President and he himself had been appointed by
Parliament. We had great affection for him and his
leadership however 6 months later we struck down 2
proclamations of his! It was at this stage that
constitutional democracy was clearly and irreversibly
established in South Africa.
Justice Sachs
then spoke of examples where the Constitutional Court had
considered challenges to it.
Mandela and the Elections
This challenge was
brought by the opposition and the Western Cape Provincial
Government. The key issue was whether Parliament, in the
exercise of authority pursuant to the Constitution, could
grant the President power to legislate for the holding of
elections. In particular, such power would enable him to
revoke old legislation from South Africa’s racist past
regarding elections. The South African Constitutional
Court held that Parliament did not have the authority to
entrust to the President its own legislative power.
Parliament could pass laws giving authority to administrative
officials regarding details to be carried out. However
the basic law itself must be adopted by Parliament
itself. This was the doctrine of “manner and
form”.
Two of the Judges
(including myself) took a slightly different line but reached
the same conclusion. The Court held that there were
basic features of the Constitutional Order that were so key to
that Constitution Order that Parliament could not exercise
legislative authority. The doctrine of “manner and form”
is now law in South Africa. The opponents of this were
surprised at the objectivity of the Court. What was
Mandela’s response? Within hours he went onto national
television to state that he had adopted the proclamations on
legal advice which he now realised had been wrong and that he
now respected the decision of the Constitutional Court.
We regarded this as a gracious and wholehearted acknowledgment
by him of the supremacy of the Constitution. By contrast
considering the UK I find it astonishing here the cavalier way
in which some people seem to deal with judgments made by the
judiciary. I regard this as showing no respect for the
rule of law. The outcome of our decision in South Africa
delayed the elections process but it was our constitutional
duty.
Mandela the Merciful
This case
referred to an Act issued by President Mandela. It was
issued in a new era of hopefulness, whereby he directed the
release of prisoners under a certain age, those certified as
disabled and the mothers of children under age 12 (unless
these individuals were guilty of certain acts).
A father of a
child under 12 years old brought a case claiming that this was
sexual discrimination against him in that the Act did not
refer to fathers of children under 12 years of age. The
case came to us in the Constitutional Court on appeal.
We had to consider whether we could intervene regarding the
President’s act of mercy? We looked to the case law of
other jurisdictions, in particular the USA and saw that this
was an area where the Courts are reluctant to intervene.
We held that the Bill of Rights operates regarding all conduct
by public officials and that the Court would refrain from
imposing its view as to the merits. However, if the
official acted in a way which was incompatible with the Bill
of Rights, the Constitutional Court would intervene. We
carried the trend of there being no areas outside the scope of
the Constitution to its logical conclusion and held that the
President was not exempt from scrutiny.
Our new building
The new building on
which our Constitutional Court stands is on the site of an old
prison. This has been deliberately chosen to manifest
the way in which negativity has been turned to positivity in
South Africa. In his address, Nelson Mandela joked that
he was unhappy to be on the site of an old prison and could
not wait to leave. He had spent long periods in places
like this and was not sure that the keys would not be
lost!
The case regarding
Mandela testifying against the Rugby Union (The Safu
Case)
In this case,
the President of the Rugby Union asserted bias before us in
the Constitutional Court especially as five members of the
Court had such a close relationship with President
Mandela. One of the members of the Constitutional Court
in particular had defended President Mandela in his
trials. This case raised the wider question as to
whether the link of resistance to apartheid should affect
whether the Constitutional Court was seen to be
impartial? It also raised the issue of whether one could
be a Judge in one’s own cause. We in the Court
considered the international precedents in this arena.
We felt that there was nothing on the facts of our case that
came close to bias and the Court therefore rejected the
application. The case involved judicial review of public
power and a new way of looking at judicial review. Under
apartheid, administrative law had given some Judges some scope
for interfering with outrageous conduct of the government
(usually on procedural grounds) therefore vigilance was an
important factor to counteract apartheid. However now,
under democracy we needed to be mindful of procedural and
substantive rights. We have a range of controls
established by the Constitution to prevent abuse including the
power of the Auditor General. In the Safu case, we held
that the President was not above the law but should not be
brought to Court. In other words, as regards him
testifying, the manner of calling for testimony must be
concomitant with the dignity of the office he held. In
other words, a subpoena for the President would be
inappropriate.
Mandela in Error
This case concerned
a pharmaceuticals law which had been passed, contrary to
opposition, to try to bring down the price of antiviral
drugs. The President had designated a date on which the
law was to come into force. He found out subsequently
that he had been in error in making this legislation since the
new apparatus had not yet been put into place and therefore
the law would have been inaccurate from its very outset.
The President approached the Constitutional Court seeking to
revoke his signature. He wished for the law to be
treated as not being a law. On the facts all the parties
wished this law to be revoked however the Constitution did not
allow it. The Constitutional Court considered the
doctrine of necessity as to whether this would entail us to
suspend the law. In my opinion public policy is a
wonderful steed, however necessity is a very dangerous
horse. In particular who is to determine what is
necessary? On the facts, therefore, the Constitutional
Court determined that the law was irrational. This must
be determined objectively. It is fundamental to
legislation that there is a minimum level of rationality
otherwise law is not a law but simply a piece of paper.
On the facts therefore we held that the law was null and void
because it was irrational.
Mandela in Doubt
This case concerned
the liquor bill. The South African breweries had
extensive control over the sale of liquor and the government
wished to open up trade especially to black
entrepreneurs. The Liquor Bill set out the principles
regarding the granting of licences and the government of the
Western Cape objected to the Bill. This was an area of
law over which there was significant provincial control.
President Mandela had doubts and felt that there was an undue
interference by virtue of the Liquor Bill, with the autonomy
of the Western Cape Province. He therefore refused to
sign the Bill. He referred the case to the
Constitutional Court.
The
Constitutional Court held he was right to have
reservations. We held that the Bill was unconstitutional
and over directive from a national government point of view as
regards the granting of licences in the Provinces. Our
Court has been established to interpret the
Constitution. I should state that our present President
is also impeccable as regards his respect for the
Constitutional Court.
By
conclusion, I wish to remind you all that our new building is
such a source of delight to us. Nothing could more
strongly underline the significance of public power than
placing the Court on the site of such a horrible prison.
It shows our wonderful traditions of resistance and the fact
of hope surviving.
I would like
to stress the importance of law in the minds of freedom
fighters. Our new Court building must convey this
ambience.
Our current
Chief Justice has previously left a lucrative practice to work
as a lawyer taking on civil rights cases.
Justice Sachs
answered numerous questions including regarding the Truth and
Reconciliation Commission. He commended the excellent
report of that Commission to the audience. He spoke
about the difference between logical truth, microscopic truth
and experiential truth.
Justice Sachs
also explained that he was in the process of dictating
chapters about his travels for a book.
Owen Davies QC
commended the website of the South African Constitutional
Court to members of ALBA and UCL.
The website is http://www.concourt.gov.za/ | 
