1 00:00:05,650 --> 00:00:07,870 Well, good evening, everyone, and thanks for that warm welcome. 2 00:00:07,870 --> 00:00:11,830 I'm going to see if my microphone on so I don't have to worry about sounding behind the desk. 3 00:00:11,830 --> 00:00:16,900 I was going to make a kind of caustic comment about the global north and the inability to manage technology. 4 00:00:16,900 --> 00:00:22,520 But. That has been removed for me, so I'm delighted that we've got pictures, 5 00:00:22,520 --> 00:00:27,650 largely because I think the pictures are lovely and I want to thank one of the 6 00:00:27,650 --> 00:00:31,700 one of my doctoral students who served as a law clerk at the court recently. 7 00:00:31,700 --> 00:00:37,580 For some of the photographs, including this rather beautiful one, I think the court at sunrise. 8 00:00:37,580 --> 00:00:42,200 So there is the Constitutional Court in Johannesburg on the hill. 9 00:00:42,200 --> 00:00:46,910 For those of you who know Johannesburg on the hill, which is immediately to the north of the city centre, 10 00:00:46,910 --> 00:00:54,110 and this site was selected for the court by the judges sort of around about the end of the 1990s. 11 00:00:54,110 --> 00:00:59,900 But so that's what let me work on this and I don't leave you behind. 12 00:00:59,900 --> 00:01:04,100 So in 20 minutes, it's a court that's now 25 years old, 13 00:01:04,100 --> 00:01:11,480 nearly it's it's quite a short time to try and reflect on the role of the Constitutional Court. 14 00:01:11,480 --> 00:01:21,350 And I wanted to start by saying that the role of any constitutional court of any senior court is determined by a range of different considerations. 15 00:01:21,350 --> 00:01:27,980 One of them, of course, is the constitutional text. Constitutional text set out what the role of the court is, 16 00:01:27,980 --> 00:01:36,860 but that constitutional text is structured and constrained by history, by constitutional and political practise. 17 00:01:36,860 --> 00:01:44,840 And so therefore text is never determinative. You can understand the role of a court wherever you're looking at it by simply looking at the text. 18 00:01:44,840 --> 00:01:49,430 And of course, here in the UK, it's confusing because it isn't a text. But nevertheless, there's history. 19 00:01:49,430 --> 00:01:59,990 There's constitutional and political practise, which really constitutes in significant ways the way in which the UK Supreme Court operates. 20 00:01:59,990 --> 00:02:10,130 And one of the key questions that faces every jurisdiction is how do you preserve an appropriate relationship between politics and law? 21 00:02:10,130 --> 00:02:17,930 What are the legitimate terrains of politics and law? And I want to start out by saying that although there are many judges and there 22 00:02:17,930 --> 00:02:23,120 are many people who think that somehow you can keep law out of politics, 23 00:02:23,120 --> 00:02:28,550 I think that's a flawed premise and that it doesn't matter where you are, what your system is, 24 00:02:28,550 --> 00:02:33,050 whether you have a system of parliamentary sovereignty, whether you have a system of a constitutional democracy. 25 00:02:33,050 --> 00:02:36,200 Politics and law into intermingled. 26 00:02:36,200 --> 00:02:44,150 And so this question about the proper role of the court is not something where you can say we'll just extract the court from politics. 27 00:02:44,150 --> 00:02:47,660 And certainly what's happened in South Africa is that there's no doubt and we 28 00:02:47,660 --> 00:02:52,610 accept and recognise that the court is going to work in the terrain of politics. 29 00:02:52,610 --> 00:02:56,870 And the interesting question is, how should the court understand that role? 30 00:02:56,870 --> 00:03:05,750 What is the appropriate role for the court in ways that do preserve the legitimate terrain of politics, but also protect the constitutional text? 31 00:03:05,750 --> 00:03:13,910 And the title of my talk, which is a forum for reason, is my shorthand way of answering that question. 32 00:03:13,910 --> 00:03:22,850 I think the primary role for a court very often is subjecting political decisions and the law to a framework of reason, 33 00:03:22,850 --> 00:03:26,960 people having to give explanations and then an assessment of those reasons. 34 00:03:26,960 --> 00:03:31,790 So it is a useful way of thinking about the role of the court. 35 00:03:31,790 --> 00:03:37,670 So if history is important, it's useful to start with a history and I'm going to give you a very potted history. 36 00:03:37,670 --> 00:03:44,180 But all of you will know that South Africa's history is deeply embedded in the process of colonial dispossession, 37 00:03:44,180 --> 00:03:47,000 of apartheid discrimination and exclusion, 38 00:03:47,000 --> 00:03:54,770 and that that history stalks the way in which our society is structured still and probably will continue to stoke it, 39 00:03:54,770 --> 00:04:00,200 certainly throughout our lives, lifetimes, the process of constitutional changes. 40 00:04:00,200 --> 00:04:10,490 We now know it really began in 1990, when on the second of February, unexpectedly, certainly to me, the then state president, F.W. declared, 41 00:04:10,490 --> 00:04:16,700 announced the unbanning of the liberation movements and his intention to release the political prisoners, 42 00:04:16,700 --> 00:04:21,440 which included hundreds of people, but of course, including also Nelson Mandela. 43 00:04:21,440 --> 00:04:26,450 I often wondered to myself, what did F.W. de Klerk have in his mind on that day? 44 00:04:26,450 --> 00:04:30,590 Did he really understand where these decisions were taking him to? 45 00:04:30,590 --> 00:04:40,610 And I suppose, like many of us, when we make fundamental decisions in our life, he probably didn't, but it certainly was a very iconic moment. 46 00:04:40,610 --> 00:04:43,070 A week later, on the 9th of February, 47 00:04:43,070 --> 00:04:54,230 when Nelson Mandela walked out of Victor Fister prison in in power and was met by a huge crowd of people on in front of the City Hall in Cape Town. 48 00:04:54,230 --> 00:04:59,750 But that began a long process of negotiation and discussion around the text of the Constitution, 49 00:04:59,750 --> 00:05:03,590 which I'm not going to go into, but happy to answer some questions on if people would like. 50 00:05:03,590 --> 00:05:10,250 And I'm not going to turn to just briefly tell you a little bit about the text of the Constitution and the establishment of the court. 51 00:05:10,250 --> 00:05:16,160 And then I'm going to if I have time to work a bit about the pause in the work of the court. But I think I'm probably going to run out of it. 52 00:05:16,160 --> 00:05:21,840 So I've talked about the same. Into February, when F.W. de Klerk, in his opening of parliament to Grace, 53 00:05:21,840 --> 00:05:28,050 announced that he was going to unban the liberation movements and release the political prisoners, 54 00:05:28,050 --> 00:05:35,220 the initial negotiations that took place between the apartheid government and the liberation movements very quickly broke into deadlock, 55 00:05:35,220 --> 00:05:41,850 and that deadlock was over the question whether those negotiations were going to produce a final text of a constitution 56 00:05:41,850 --> 00:05:47,760 for South Africa or whether they were going to really just produce a roadmap to the first democratic elections, 57 00:05:47,760 --> 00:05:53,790 after which the democratically elected parliament or a constitutional assembly would draught the Constitution. 58 00:05:53,790 --> 00:05:59,250 And for a while, it looked as if that was going to be a blockage that would be insuperable. 59 00:05:59,250 --> 00:06:07,680 The reason I'm telling you this story is because it was in the resolution to that deadlock that the genesis of the Constitutional Court lies, 60 00:06:07,680 --> 00:06:15,480 and the solution was that what would be agreed was that there'd be certain principles agreed in that pre-election period, 61 00:06:15,480 --> 00:06:20,940 which the constitution that would be draughted after the democratic elections should comply with. 62 00:06:20,940 --> 00:06:25,020 And then there was a decision that there needed to be a court that would determine 63 00:06:25,020 --> 00:06:30,090 whether there was compliance and there was no trust in the existing courts to do that. 64 00:06:30,090 --> 00:06:33,900 So the decision was made to create a constitutional court. 65 00:06:33,900 --> 00:06:46,050 So the court's genesis lay very much in that process of negotiation in the first, but prior to the first democratic elections. 66 00:06:46,050 --> 00:06:54,510 So what happened was as the interim constitution suggested, there were democratic elections on the 27th of April 1994 in and there, 67 00:06:54,510 --> 00:06:56,430 after a constitutional assembly, 68 00:06:56,430 --> 00:07:03,510 which was parliament sitting as a constitutional assembly was formed and there was a process, a constitutional draughting. 69 00:07:03,510 --> 00:07:09,960 It was a process that took quite some time and involved certainly by many constitutional draughting standards, 70 00:07:09,960 --> 00:07:14,640 quite extensive public participation meetings throughout the country, 71 00:07:14,640 --> 00:07:20,070 which were attended by more than 20000 participants in seven hundred and seventeen organisations. 72 00:07:20,070 --> 00:07:24,900 More than 1.7 million submissions were received by the Constitutional Assembly, 73 00:07:24,900 --> 00:07:32,580 and there was pretty lively debate about the content of the Constitution and the 74 00:07:32,580 --> 00:07:38,670 Constitutional Court then went on to certify the Constitution that was adopted in 1996. 75 00:07:38,670 --> 00:07:43,650 Certain issues were referred back to the Constitutional Assembly, but eventually it was finalised. 76 00:07:43,650 --> 00:07:52,620 And I want to turn now to the whole project of inventing a court which had actually happened after the first democratic elections back in late 1994. 77 00:07:52,620 --> 00:07:58,290 And I mean, talk about tabula rasa. Of course, one doesn't have an entire tabula rasa, but the court, 78 00:07:58,290 --> 00:08:07,590 the 11 members of the court realise that what what needed to be done was rethinking what we understood by the nature of a court and in some ways 79 00:08:07,590 --> 00:08:16,110 through the symbolism and practise and processes of the court to reflect that this was not a court similar to courts that had existed before. 80 00:08:16,110 --> 00:08:21,330 So a whole range of things had to be thought about modes of address previously in South Africa. 81 00:08:21,330 --> 00:08:24,330 Judges were referred to as his lordship. 82 00:08:24,330 --> 00:08:33,480 There were almost no her ladyship, Mr Justice So-and-so and the court said, We don't want these kind of colonial modes of address. 83 00:08:33,480 --> 00:08:38,070 We are going to just opt for justice or judge so-and-so. 84 00:08:38,070 --> 00:08:43,170 And that was sort of one of the first decisions the court made. The next one, which was seniority. 85 00:08:43,170 --> 00:08:46,830 Most Commonwealth courts operate a system of seniority. 86 00:08:46,830 --> 00:08:53,190 In other words, the judge who's been appointed first, is senior to the next coming judge and so on. 87 00:08:53,190 --> 00:08:56,700 Well, by and large, the 11 of us had all been appointed at the same time. 88 00:08:56,700 --> 00:09:01,320 But when this conversation came up, I knew that I had to keep very quiet because I'm pretty well. 89 00:09:01,320 --> 00:09:05,460 Every measure of seniority, even including alphabetical but certainly age, 90 00:09:05,460 --> 00:09:11,640 experience and everything else I was going to be right at the end of any seniority was announced. 91 00:09:11,640 --> 00:09:14,970 But actually, my colleagues agreed. We're not going to have seniority. 92 00:09:14,970 --> 00:09:19,770 We all recognise that the presiding judge on the court and a deputy, if we have one, 93 00:09:19,770 --> 00:09:27,300 will be accorded a kind of position of first amongst equals, but the rest of us are going to be at the same level. 94 00:09:27,300 --> 00:09:34,560 And I always felt it was an extraordinarily important decision actually, when I've talked to people who sit on other senior courts around the world. 95 00:09:34,560 --> 00:09:38,610 The idea that you don't have seniority on a court is very unusual, 96 00:09:38,610 --> 00:09:43,770 and I think it was good in terms of setting an institutional culture amongst the judges, 97 00:09:43,770 --> 00:09:52,650 and particularly because the judges initially were drawn from, certainly by South African standards at the time, a relatively diverse group of people. 98 00:09:52,650 --> 00:09:57,060 It destabilised existing patterns of hierarchy. 99 00:09:57,060 --> 00:10:04,980 When you had been appointed to the bar, when you had been a first appointed to the bench because six of the original 11 had previously been judges. 100 00:10:04,980 --> 00:10:11,490 And certainly for those of us that were certainly at the very end of the seniority line, which would include Justice Curro and I, 101 00:10:11,490 --> 00:10:17,960 who were the two women judges on the court and the youngest by a significant margin and we certainly wouldn't otherwise have. 102 00:10:17,960 --> 00:10:23,090 We would have definitely felt we were the sort of and the people at the end of the line, 103 00:10:23,090 --> 00:10:27,440 then the decisions about robes and decisions about with the court logo and decisions 104 00:10:27,440 --> 00:10:31,700 about procedures and styles of judgement writing and also about having a court building. 105 00:10:31,700 --> 00:10:38,570 And I'm not going to take you through all of those, but just to give you some idea of that, the court logo is this one. 106 00:10:38,570 --> 00:10:41,090 So what I want to just talk about briefly is nice picture. 107 00:10:41,090 --> 00:10:49,640 But again, historically in South Africa, courts had always used the image of the scales and we felt very strongly. 108 00:10:49,640 --> 00:10:57,230 We didn't want to use the image of the scales. We wanted to use an image that was more in sort of indigenous to South Africa. 109 00:10:57,230 --> 00:11:00,980 The idea of the way in which courts function in South Africa, historically, 110 00:11:00,980 --> 00:11:06,710 which was in the open, in public and very often in our hot climate under a tree. 111 00:11:06,710 --> 00:11:12,740 So the idea was to use the logo of the tree with the people sheltering under the tree as the idea of justice, 112 00:11:12,740 --> 00:11:17,120 and it's actually an image that has almost come to stand for our constitution. 113 00:11:17,120 --> 00:11:25,040 You see, it used a lot in South Africa, this logo, which is actually the court's seal and appears on the court building everywhere. 114 00:11:25,040 --> 00:11:29,840 But that is where the idea that was the sort of thinking behind it and you sort 115 00:11:29,840 --> 00:11:36,260 of slightly see a little bit of a sense of the South African flag in it as well. 116 00:11:36,260 --> 00:11:40,790 So then the next thing was we had to think about the building. So this took a couple of years. 117 00:11:40,790 --> 00:11:45,200 In fact, quite a lot more than a couple of years of building was finally opened in 2004, 118 00:11:45,200 --> 00:11:50,810 just 10 years after the transition from apartheid to democracy. 119 00:11:50,810 --> 00:11:55,070 And here you see a picture of the court in session quite a recent one. 120 00:11:55,070 --> 00:12:01,220 And the judges had to decide a brief because we had an international competition for the design of the court. 121 00:12:01,220 --> 00:12:06,140 And the brief was that judges would be on the same level as counsel. 122 00:12:06,140 --> 00:12:12,410 So you can sort of see that the judges sitting in council standing, you can see the person in the middle that they sort of eye to eye. 123 00:12:12,410 --> 00:12:21,260 And again, if you go into many colonial courts, the model of courts generally is teak lots of teak or whatever the local version of teak is. 124 00:12:21,260 --> 00:12:25,010 And it's up there and judges, especially judges, if they're not very tall, 125 00:12:25,010 --> 00:12:28,940 having to lean over the bench to be able to see counsel who way down on the bottom. 126 00:12:28,940 --> 00:12:30,620 And we didn't want that mode. 127 00:12:30,620 --> 00:12:38,270 And we also wanted the public to be either on the same level or above the judges to give us scenes that actually this is a public forum. 128 00:12:38,270 --> 00:12:42,470 And so you can't see it in this picture, but this is where counsel sit. 129 00:12:42,470 --> 00:12:50,060 And then behind it, just exactly as were sitting, is erect public gallery, where members of the public sit. 130 00:12:50,060 --> 00:12:56,810 And some of this might seem kind of strange to you, but I am a great believer in architecture, structures, 131 00:12:56,810 --> 00:13:03,940 institutions in ways in which we often don't know and establish this culture in ways which we don't know. 132 00:13:03,940 --> 00:13:09,230 And so the, you know, the thinking about through the court building was very important. 133 00:13:09,230 --> 00:13:15,440 Finally, you can see the huge flag at the back that's actually a beaded flag in traditional South African beading work, which was done by and again, 134 00:13:15,440 --> 00:13:20,840 the idea was in the court building to try and get a lot of South African work done by ordinary South Africans, 135 00:13:20,840 --> 00:13:29,120 which would remind judges of the fact that they are here, you know, being engaged, judging South Africans. 136 00:13:29,120 --> 00:13:37,820 Now I'm going to run out of time. We'll probably possibly already have. The text of the Constitution is very clear. 137 00:13:37,820 --> 00:13:42,080 And again, unlike I think, a lot of constitutions globally, 138 00:13:42,080 --> 00:13:48,410 it starts with a preamble which recognises that this constitution is a constitution about change. 139 00:13:48,410 --> 00:13:52,220 It's not about an assertion of the status quo. 140 00:13:52,220 --> 00:14:00,260 It acknowledges our history so you can see it talks about healing the divisions of the past and establishing a society based on democratic values, 141 00:14:00,260 --> 00:14:07,880 social justice and fundamental human rights. But it also talks about the foundations of a democratic society. 142 00:14:07,880 --> 00:14:13,970 It talks about improving the quality of life of all citizens and freeing the potential of each person, 143 00:14:13,970 --> 00:14:22,790 and finally building a united and democratic South Africa, able to take its rightful place as a sovereign state in the family of nations. 144 00:14:22,790 --> 00:14:27,020 This preamble talks very much to South Africa's history, and I haven't done a count, 145 00:14:27,020 --> 00:14:33,890 but it is extraordinary how often it is cited in judgements of the court because it is, as it were, 146 00:14:33,890 --> 00:14:41,150 a signpost about what the Constitution means and again and again, when there's a debate about the text of the Constitution, 147 00:14:41,150 --> 00:14:47,120 we go back to the preamble to say This is a transformative constitution. 148 00:14:47,120 --> 00:14:52,520 This is about change in our society. This is about freeing the potential of each person. 149 00:14:52,520 --> 00:15:00,080 It's about a democratic society and that helps us when the text is otherwise obscure or not clear or subject to debate. 150 00:15:00,080 --> 00:15:09,620 To remember that, however we interpret the text, it must remember this image or this project that is being established by the preamble. 151 00:15:09,620 --> 00:15:14,240 This is a very generous bill of rights in the Constitution, and I'm not going to talk about it long, 152 00:15:14,240 --> 00:15:18,610 but at length, but it's an important part of the jurisprudence of the court. 153 00:15:18,610 --> 00:15:22,780 Another picture that I thought you might like to see, this is the foyer of the court, 154 00:15:22,780 --> 00:15:30,340 which again was built in an attempt to create the sense of actually being almost outdoors under a tree. 155 00:15:30,340 --> 00:15:34,960 You'll notice that the the pillars or slightly off angles. 156 00:15:34,960 --> 00:15:43,690 And my colleague, Justice Lunga, who's chief justice at the time, was terribly anxious that this was now going to be a metaphor for our jurisprudence. 157 00:15:43,690 --> 00:15:49,870 The Constitutional Court can never get anything straight. It's always crooked. 158 00:15:49,870 --> 00:15:54,760 But actually, I have not yet seen that in print, but no doubt it'll arrive shortly. 159 00:15:54,760 --> 00:16:00,760 But it is a very nice space, and it is this idea of trying to create an open, 160 00:16:00,760 --> 00:16:07,210 welcoming space which people feel at ease and could talk to you about lots of other things. 161 00:16:07,210 --> 00:16:17,470 But I think what I want to do in closing is really to say that I think the role of the court has been extraordinarily 162 00:16:17,470 --> 00:16:26,740 important in creating a forum for debating some of the most intensely difficult issues that our society faces. 163 00:16:26,740 --> 00:16:32,110 But one of the things I often say to students is that we should never mistake 164 00:16:32,110 --> 00:16:36,730 the court for the project of democracy because a court can be very important 165 00:16:36,730 --> 00:16:47,380 and the Constitution can be very important in making sure that we have a democracy and contributing to that and creating a stable political space. 166 00:16:47,380 --> 00:16:52,720 But at the end of the day, if we want to build a society that our constitution contemplates, 167 00:16:52,720 --> 00:16:58,660 that is not the work of a court, it's actually the work of an engaged citizenry. 168 00:16:58,660 --> 00:17:02,410 And sometimes one of the things that can happen, I think, 169 00:17:02,410 --> 00:17:08,800 in South Africa is that people think we'll take our problems to the court and that'll solve the problems. 170 00:17:08,800 --> 00:17:12,190 Well, actually, that's not the role of a court. It can never be the role of the court. 171 00:17:12,190 --> 00:17:21,250 It can. The Constitutional Court can make sure that we preserve the space for political contestation for thinking about and the challenges we face. 172 00:17:21,250 --> 00:17:27,250 But the challenges we face are many. The answers to them are not clear. 173 00:17:27,250 --> 00:17:32,980 We need politics to be working and experimenting and thinking about how to do things. 174 00:17:32,980 --> 00:17:39,640 And if courts begin to think that they are indeed the solution and stop determining the way forward, 175 00:17:39,640 --> 00:17:45,430 we are probably going to find the court is going to play at some stage a pretty regressive role. 176 00:17:45,430 --> 00:17:49,450 So although I do think the court has been an important institution, 177 00:17:49,450 --> 00:17:55,930 it cannot be the institution actually that delivers the vision that our constitution holds out. 178 00:17:55,930 --> 00:18:00,042 Thank you very much.