We, the People. Albie Sachs
Hani greets Cheryl Carolus as Albie ascends the platform of the University of Durban-Westville Sports Hall in July 1991 just after being elected to the National Executive Committee at the ANC’s first lawful conference on South African soil after more than thirty years of forced secrecy, imprisonment and exile.
Figure 14: The ANC delegation disperses after having a group photograph taken at the Convention for a Democratic South Africa (CODESA) negotiations, c. 1992.
Figure 15: President Nelson Mandela presided over the swearing-in ceremony of the judges he had appointed to the Constitutional Court. His opening words were: ‘The last time I appeared in court was to find out if I would be sentenced to death. Today I inaugurate a Court whose work will be central to our democracy.’ Six months later the Court struck down two important proclamations issued by President Mandela as being unconstitutional. He immediately went on television to say that he, as president, should be the first to accept interpretations of the Constitution as made by the Court.
Figure 16: Albie raises his right arm as he is sworn in as a justice of the Constitutional Court on 14 February 1995.
Figure 17: An off-guard moment for eight of the eleven judges after being sworn in at the Constitutional Court on 14 February 1995.
Figure 18: Albie being greeted by Raymond Mhlaba, a friend from early struggle days, at a reception after inauguration. Mhlaba was sentenced to life imprisonment during the Rivonia trial and, decades later, became premier of the Eastern Cape. Phineas Mojapelo, later deputy-president of the Gauteng High Court, looks on.
Figure 19: Constitutional Court judges during a workshop, c. 2000, clockwise from centre: Chief Justice Arthur Chaskalson, Albie, Yvonne Mokgoro, Richard Goldstone, Kate O’Regan, Zak Yacoob, Johann Kriegler, Tholie Madala, [indistinct], Deputy Chief Justice Pius Langa and acting-justice Edwin Cameron. They workshopped together after almost every case, going round and round the table several times to reach consensus where possible and to write separate judgements when necessary.
Figure 20: Albie on the stairway to the library in the new Constitutional Court building, with Judith Mason’s painting, The Blue Dress, in the background. The painting commemorated the last moments of Phila Ndwandwe, an MK guerrilla who was captured close to the Swaziland border and tortured and executed. As a result of the Truth and Reconciliation Commission, her body was found in a shallow grave, naked except for a piece of plastic covering her pubic area. The blue dress was the artist’s tribute to the woman she called her ‘sister’.
Introduction
To know the taste of an avocado pear you have to cut it in half. I’m reminded of this statement of Samora Machel’s as I turn these pages. Decades ago, when I arrived in newly independent Mozambique, Samora would say that only when you let all the contradictions come out will you resolve problems in an open and principled way. Three contradictions in this book stand out for me.
Contradiction number one is personal and amusing in an ‘Only in South Africa’ kind of a way. My relationship with former apartheid president FW de Klerk had always been distant. When I was told that, in the Government of National Unity, he had bitterly opposed Mandela selecting me as one of the justices on the Constitutional Court, I was not surprised. Yet, early this year when I was asked to speak at a conference on multi-culturalism in South Africa organised by the FW de Klerk Foundation, I accepted. Our Constitution belongs to everyone. And if I speak about it to trade unionists, community organisations, faith groups, schoolchildren, student activists and NGOs, so should I engage with the multiple foundations that South Africa has produced.
When I arrived at the venue I was greeted warmly and spontaneously by Elita de Klerk, but more restrainedly with a stiff handshake and correct smile by the former president. Maybe it was the challenge of addressing an audience invited by his foundation that caused me to speak with special emotion about the crucial but virtually unknown role played by Oliver Tambo in establishing the foundations of our Constitution. I went on to pay particular attention to how, in the ANC, we had dealt with the manner in which the Constitution should protect Afrikaans as one of eleven official languages, an issue of some controversy in schools and universities today. I mentioned that my contact as a child with Afrikaans speakers had been most positive. In Cape Town it had been with the poet Uys Krige and the artist Gregoire Boonzaier, both lively, progressive and full of fun. In Johannesburg it had been with people like Johanna and Hester Cornelius, both members of the Garment Workers Union of which my father, Solly Sachs, had been the general secretary, and both lively, progressive and full of fun.
After making my presentation [see Section 10, United in Diversity], I thought I would slip out quietly. But De Klerk suddenly placed himself in front of me, blocking my way, and began to speak to me in Afrikaans. In a serious voice he told me that his father, Jan de Klerk, had been a school principal in the Transvaal, and a successful one. But then he had been asked by the National Party to leave his job and work full time on something quite different. It was to destroy the leadership my father, Solly Sachs, was providing to the Garment Workers Union. Afterwards, De Klerk Snr had been made minister of labour, and was responsible for a number of the labour laws of the time, laws which, FW added, he had gone on to repeal. He smiled warmly for the first time, shook my hand and walked away. Only in South Africa, I thought, only in South Africa …
A second contradictory moment occurred after a far more poignant and astringent emotion flowed from re-reading the chapter on the contradictions between Free Spirits and Ravaged Souls, adapted from a keynote address I gave at the Time of the Writer festival in Durban in 2011 [see Section 6, Free Spirits and Ravaged Souls]. I think about how bitterly the tensions that lay at the core of this talk later manifested themselves in the terrible Charlie Hebdo episode in Paris. And also about what has happened in the intervening years to the two main protagonists of my presentation, the cartoonist Zapiro and the president, Jacob Zuma.
Zapiro, the brave, progressive and much-loved political cartoonist, had at the time insisted vociferously on his right to untrammelled free speech when depicting Zuma being urged by his political colleagues to open his fly and rape a prostrate Lady Justice. Yet, interestingly, since then Zapiro has modified his position. He has accepted, after a great deal of serious introspection, that he erred in not taking into account the injury his cartoons might cause [if quite unintentionally] through triggering painfully racialised stereotypes.
Meanwhile, for his part, President Jacob Zuma has since withdrawn his claim for huge amounts in damages from Zapiro. His popularity ratings have plunged dramatically in recent times. People I was close to during the struggle have expressed anguish at the thought that Zuma might succeed in doing something that Verwoerd, Vorster and Botha failed to do, and that is destroy the ANC. They are deeply concerned that he is providing a kind of leadership that could not only undermine the South African constitutional order through state capture, but could also rip out the heart of the ANC’s constitutional ethos by means of branch capture.
As a former judge I feel it would not be appropriate for me to take any public stand on these issues. What I can ask myself is, if I make the assumption that these fears are justified, does it change my concerns about the