Well, good evening, everyone, and thanks for that warm welcome.
I'm going to see if my microphone on so I don't have to worry about sounding behind the desk.
I was going to make a kind of caustic comment about the global north and the inability to manage technology.
But. That has been removed for me, so I'm delighted that we've got pictures,
largely because I think the pictures are lovely and I want to thank one of the
one of my doctoral students who served as a law clerk at the court recently.
For some of the photographs, including this rather beautiful one, I think the court at sunrise.
So there is the Constitutional Court in Johannesburg on the hill.
For those of you who know Johannesburg on the hill, which is immediately to the north of the city centre,
and this site was selected for the court by the judges sort of around about the end of the 1990s.
But so that's what let me work on this and I don't leave you behind.
So in 20 minutes, it's a court that's now 25 years old,
nearly it's it's quite a short time to try and reflect on the role of the Constitutional Court.
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.
One of them, of course, is the constitutional text. Constitutional text set out what the role of the court is,
but that constitutional text is structured and constrained by history, by constitutional and political practise.
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.
And of course, here in the UK, it's confusing because it isn't a text. But nevertheless, there's history.
There's constitutional and political practise, which really constitutes in significant ways the way in which the UK Supreme Court operates.
And one of the key questions that faces every jurisdiction is how do you preserve an appropriate relationship between politics and law?
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
are many people who think that somehow you can keep law out of politics,
I think that's a flawed premise and that it doesn't matter where you are, what your system is,
whether you have a system of parliamentary sovereignty, whether you have a system of a constitutional democracy.
Politics and law into intermingled.
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.
And certainly what's happened in South Africa is that there's no doubt and we
accept and recognise that the court is going to work in the terrain of politics.
And the interesting question is, how should the court understand that role?
What is the appropriate role for the court in ways that do preserve the legitimate terrain of politics, but also protect the constitutional text?
And the title of my talk, which is a forum for reason, is my shorthand way of answering that question.
I think the primary role for a court very often is subjecting political decisions and the law to a framework of reason,
people having to give explanations and then an assessment of those reasons.
So it is a useful way of thinking about the role of the court.
So if history is important, it's useful to start with a history and I'm going to give you a very potted history.
But all of you will know that South Africa's history is deeply embedded in the process of colonial dispossession,
of apartheid discrimination and exclusion,
and that that history stalks the way in which our society is structured still and probably will continue to stoke it,
certainly throughout our lives, lifetimes, the process of constitutional changes.
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,
announced the unbanning of the liberation movements and his intention to release the political prisoners,
which included hundreds of people, but of course, including also Nelson Mandela.
I often wondered to myself, what did F.W. de Klerk have in his mind on that day?
Did he really understand where these decisions were taking him to?
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.
A week later, on the 9th of February,
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.
But that began a long process of negotiation and discussion around the text of the Constitution,
which I'm not going to go into, but happy to answer some questions on if people would like.
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.
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.
So I've talked about the same. Into February, when F.W. de Klerk, in his opening of parliament to Grace,
announced that he was going to unban the liberation movements and release the political prisoners,
the initial negotiations that took place between the apartheid government and the liberation movements very quickly broke into deadlock,
and that deadlock was over the question whether those negotiations were going to produce a final text of a constitution
for South Africa or whether they were going to really just produce a roadmap to the first democratic elections,
after which the democratically elected parliament or a constitutional assembly would draught the Constitution.
And for a while, it looked as if that was going to be a blockage that would be insuperable.
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,
and the solution was that what would be agreed was that there'd be certain principles agreed in that pre-election period,
which the constitution that would be draughted after the democratic elections should comply with.
And then there was a decision that there needed to be a court that would determine
whether there was compliance and there was no trust in the existing courts to do that.
So the decision was made to create a constitutional court.
So the court's genesis lay very much in that process of negotiation in the first, but prior to the first democratic elections.
So what happened was as the interim constitution suggested, there were democratic elections on the 27th of April 1994 in and there,
after a constitutional assembly,
which was parliament sitting as a constitutional assembly was formed and there was a process, a constitutional draughting.
It was a process that took quite some time and involved certainly by many constitutional draughting standards,
quite extensive public participation meetings throughout the country,
which were attended by more than 20000 participants in seven hundred and seventeen organisations.
More than 1.7 million submissions were received by the Constitutional Assembly,
and there was pretty lively debate about the content of the Constitution and the
Constitutional Court then went on to certify the Constitution that was adopted in 1996.
Certain issues were referred back to the Constitutional Assembly, but eventually it was finalised.
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.
And I mean, talk about tabula rasa. Of course, one doesn't have an entire tabula rasa, but the court,
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
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.
So a whole range of things had to be thought about modes of address previously in South Africa.
Judges were referred to as his lordship.
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.
We are going to just opt for justice or judge so-and-so.
And that was sort of one of the first decisions the court made. The next one, which was seniority.
Most Commonwealth courts operate a system of seniority.
In other words, the judge who's been appointed first, is senior to the next coming judge and so on.
Well, by and large, the 11 of us had all been appointed at the same time.
But when this conversation came up, I knew that I had to keep very quiet because I'm pretty well.
Every measure of seniority, even including alphabetical but certainly age,
experience and everything else I was going to be right at the end of any seniority was announced.
But actually, my colleagues agreed. We're not going to have seniority.
We all recognise that the presiding judge on the court and a deputy, if we have one,
will be accorded a kind of position of first amongst equals, but the rest of us are going to be at the same level.
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.
The idea that you don't have seniority on a court is very unusual,
and I think it was good in terms of setting an institutional culture amongst the judges,
and particularly because the judges initially were drawn from, certainly by South African standards at the time, a relatively diverse group of people.
It destabilised existing patterns of hierarchy.
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.
And certainly for those of us that were certainly at the very end of the seniority line, which would include Justice Curro and I,
who were the two women judges on the court and the youngest by a significant margin and we certainly wouldn't otherwise have.
We would have definitely felt we were the sort of and the people at the end of the line,
then the decisions about robes and decisions about with the court logo and decisions
about procedures and styles of judgement writing and also about having a court building.
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.
So what I want to just talk about briefly is nice picture.
But again, historically in South Africa, courts had always used the image of the scales and we felt very strongly.
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.
The idea of the way in which courts function in South Africa, historically,
which was in the open, in public and very often in our hot climate under a tree.
So the idea was to use the logo of the tree with the people sheltering under the tree as the idea of justice,
and it's actually an image that has almost come to stand for our constitution.
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.
But that is where the idea that was the sort of thinking behind it and you sort
of slightly see a little bit of a sense of the South African flag in it as well.
So then the next thing was we had to think about the building. So this took a couple of years.
In fact, quite a lot more than a couple of years of building was finally opened in 2004,
just 10 years after the transition from apartheid to democracy.
And here you see a picture of the court in session quite a recent one.
And the judges had to decide a brief because we had an international competition for the design of the court.
And the brief was that judges would be on the same level as counsel.
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.
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.
And it's up there and judges, especially judges, if they're not very tall,
having to lean over the bench to be able to see counsel who way down on the bottom.
And we didn't want that mode.
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.
And so you can't see it in this picture, but this is where counsel sit.
And then behind it, just exactly as were sitting, is erect public gallery, where members of the public sit.
And some of this might seem kind of strange to you, but I am a great believer in architecture, structures,
institutions in ways in which we often don't know and establish this culture in ways which we don't know.
And so the, you know, the thinking about through the court building was very important.
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,
the idea was in the court building to try and get a lot of South African work done by ordinary South Africans,
which would remind judges of the fact that they are here, you know, being engaged, judging South Africans.
Now I'm going to run out of time. We'll probably possibly already have. The text of the Constitution is very clear.
And again, unlike I think, a lot of constitutions globally,
it starts with a preamble which recognises that this constitution is a constitution about change.
It's not about an assertion of the status quo.
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,
social justice and fundamental human rights. But it also talks about the foundations of a democratic society.
It talks about improving the quality of life of all citizens and freeing the potential of each person,
and finally building a united and democratic South Africa, able to take its rightful place as a sovereign state in the family of nations.
This preamble talks very much to South Africa's history, and I haven't done a count,
but it is extraordinary how often it is cited in judgements of the court because it is, as it were,
a signpost about what the Constitution means and again and again, when there's a debate about the text of the Constitution,
we go back to the preamble to say This is a transformative constitution.
This is about change in our society. This is about freeing the potential of each person.
It's about a democratic society and that helps us when the text is otherwise obscure or not clear or subject to debate.
To remember that, however we interpret the text, it must remember this image or this project that is being established by the preamble.
This is a very generous bill of rights in the Constitution, and I'm not going to talk about it long,
but at length, but it's an important part of the jurisprudence of the court.
Another picture that I thought you might like to see, this is the foyer of the court,
which again was built in an attempt to create the sense of actually being almost outdoors under a tree.
You'll notice that the the pillars or slightly off angles.
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.
The Constitutional Court can never get anything straight. It's always crooked.
But actually, I have not yet seen that in print, but no doubt it'll arrive shortly.
But it is a very nice space, and it is this idea of trying to create an open,
welcoming space which people feel at ease and could talk to you about lots of other things.
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
important in creating a forum for debating some of the most intensely difficult issues that our society faces.
But one of the things I often say to students is that we should never mistake
the court for the project of democracy because a court can be very important
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.
But at the end of the day, if we want to build a society that our constitution contemplates,
that is not the work of a court, it's actually the work of an engaged citizenry.
And sometimes one of the things that can happen, I think,
in South Africa is that people think we'll take our problems to the court and that'll solve the problems.
Well, actually, that's not the role of a court. It can never be the role of the court.
It can. The Constitutional Court can make sure that we preserve the space for political contestation for thinking about and the challenges we face.
But the challenges we face are many. The answers to them are not clear.
We need politics to be working and experimenting and thinking about how to do things.
And if courts begin to think that they are indeed the solution and stop determining the way forward,
we are probably going to find the court is going to play at some stage a pretty regressive role.
So although I do think the court has been an important institution,
it cannot be the institution actually that delivers the vision that our constitution holds out.
Thank you very much.