A REFLECTION

Poetry in the air during Judge Edwin Cameron’s send-off

By Mark Heywood 22 August 2019

20 August 2019: The public gallery was packed for Justice Edwin Cameron's last day of work as a judge in South Africa's Constitutional Court. Picture: James Oatway

Where in the world could an esteemed judge, a proudly gay man who lives openly with HIV, end 25 years of service with a declaration of love to his partner? All of this on live television while seated beside a deeply Christian chief justice whose church abhors homosexuality, but sealed with a smile and a handshake? South Africa, of course.

See a photo essay here of Cameron’s last day, by James Oatway

Something strange and unusual happened in the Constitutional Court on Tuesday 20 August 2019. Edwin Cameron, one of the most respected judges in the world and one of the most senior judges in our land, ended a 25-year career on the bench. In purely legal terms, he left behind an opus of 389 reported judgments handed down from the High Court, the Supreme Court of Appeal and latterly the Constitutional Court; judgments which span vast areas of law and human rights and which, as a tribute delivered by the Minister of Justice and Constitutional Development Ronald Lamola pointed out, will “speak to generations to come”.

A judge makes a ruling even from the grave,” noted Lamola in a remarkably honest and fresh speech in which he readily admitted (almost with relish) that Cameron’s last judgment – handed down minutes before – was “a rebuke to us as government”, promising to personally deliver its message at a Cabinet meeting the next day.

This and other modern-day miracles of politics and rare humanity happened at the specially convened Constitutional Court sitting to honour Cameron’s life and work.

The morning started with customary judicial sobriety as the court rose and Cameron read out sections of Bhekindela Mwelase and Others v the Director-General for the Department of Rural Development and Land Reform, a profoundly important judgment in which he castigated the department for having:

“ …jeopardised not only the rights of land claimants, but the constitutional security and future of all. South Africans have been waiting for more than 25 years for equitable land reform. More accurately, they have been waiting for centuries before. The department’s failure …has profoundly exacerbated the intensity and bitterness of our national debate about land reform. It is not the Constitution, nor the courts, nor the laws of the country that are at fault in this. It is the institutional incapacity of the department to do what the statute and the Constitution require of it that lies at the heart of this colossal crisis”.

As the words flowed off the page, the silence in court was not because it was ordered, but because there was poetry and justice in what was being said. The best practitioners of law, and Cameron is one of them, are able to make poetry out of the disputes that come before courts. That may seem paradoxical, given law’s famous rigidity and the greyness of many of its disciples, but actually, it’s not surprising because law is so often about dignity and humanity.

Human rights law often has its locus in someone’s pain and anguish. As the words built the story, I could feel the anguish of the applicants, including old man Mwelase – born in 1931, deceased in November 2018 – who did not live to hear his claims vindicated. There is frequently love involved in law. All these are the ingredients of great poetry.

But there’s also poetry in social justice.

If we could find that poetry more often, we might also find ourselves a more humane, tolerant and forgiving society.

And poetry was what the day became about as people first paid tribute then listened to the story of a boy who had started his life outcast, poor, marginalised and orphaned, but grew up to become a man who embraced the penumbra in his quest to bring it back to the centre.

After the Mwelase judgment, things relaxed a little. There followed a range of unusual tributes. Unusual because they were genuinely heartfelt. Unusual because for the first time ever a Chief Justice allowed a foreign advocate to address the bench to pay the first tribute. Unusual because, as the speakers gave their homages, a toddler (Cameron’s great-niece) mewled and strutted her stuff in front of bemused clerks who were trying to keep straight faces. Unusual because there was a strange unity as black lawyers from Advocates for Transformation (AFT), the Black Lawyers Association (BLA) and others, even now involved in bitter and often personal struggles over transformation and racism at the Bar, stood up to celebrate Cameron’s whiteness. And I mean whiteness, because what came out was a recognition that white people can be nation builders and show empathy and solidarity with the poor. There were no dissenting voices, no snide remarks, no subtexts.

As I listened, I thought the best way to celebrate Cameron, especially by white people, is to use his values and actions as the basis of a checklist for your own. How many crosses do you have against his ticks? But what was most unusual was that, when it came time for Cameron to speak, almost all his thanks were made to the women in his life and the “granite love” they had provided: first his domestic worker, Sophie Kekana, then his personal assistant, Elizabeth Moloto, then his sister, Jeanie, and lastly to his lover and partner, Nhlanhla Mnisi. This was proof, if proof was needed, that Cameron had not succumbed to what an earlier speaker had called “judge-itus”: pompous, arrogant, opinionated and grand.

In fact, Chief Justice Mogoeng Mogoeng said it best. He joked about the Toyota that Cameron still drives – which he jokingly said “brings the judiciary into disrepute” – his inexpensive watch and clothes and then advised the nation that what Cameron taught us best is that “it’s service to humanity that must define you”.

Cameron’s service to humanity is incontestable and hard to quantify. I have had the privilege of working with him for exactly 25 years and in my responses to media questions about his contribution I described him as “the father of the human rights response to HIV in South Africa”.

In a dark, dangerous, deathly time, long before the Treatment Action Campaign, he set about building the institutional and legal architecture for the AIDS response. He formed the AIDS Consortium (1992) and the AIDS Law Project (1993) at the Centre for Applied Legal Studies (CALS); he inspired and wrote the Charter of Rights on HIV and AIDS, which was signed by politicians like Nelson Mandela, Chris Hani and Mangosuthu Buthelezi before our first democratic election in 1994; he risked judicial sanction by being one of the few people brave enough to denounce Thabo Mbeki’s deadly AIDS denialism. After going to the judiciary in 1994, behind the scenes he kept up his friendship with those who led the AIDS activist movement, but always maintained a proper and professional distance when it came to matters that might end up before court.

Millions of people owe their lives and dignity to this work.

So, for two hours on Tuesday 20 August 2019, the Constitutional Court was a festival of possibility, a reminder of the values our nation ought to embrace and that they still are possible. For everybody present, it felt like a refuelling, an antidote to the growing hate that some people and parties are spreading in our nation. And there was a serious message as well. Cameron reflected that his 11 years had been hard, that “deeply divisive issues” had tested the court – and thus the very heart of constitutionalism – and he warned that “tough times lie ahead for those committed to social justice and not the enrichment of an elite”.

These sentiments were echoed by former Deputy Chief Justice Dikgang Moseneke at a cocktail party later in the day when he warned young judges and lawyers “to prepare for the next despot. There’s another lurking somewhere.”

The last thought I had as I walked out through the great carved wooden doors of Albie Sach’s building was that if a bomb had gone off in the Constitutional Court that morning it would have destroyed many of the people who have held South Africa together in its recent past, still hold it together in our tormented and centripetal present and are needed for our uncertain future. Gathered in its auditorium was a diversity of actors rarely, if ever, seen in the same room at the same time.

I spotted former justices Moseneke, Kriegler, Sachs and Goldstone; all the current judges of the Constitutional Court; judge presidents of its various divisions; judges with human rights pedigrees like Dennis Davis and Jody Kollapen. There was the leadership and rank-and-file members of the TAC and other social justice movements; the Deputy Public Protector; Cheryl Carolus; silks of various stripes; the Minister of Justice and the Speaker of the National Assembly. And then there were students, clerks, employees and active citizens without title – ordinary people who need our Constitution to realise its promise of social justice, dignity and equality for all people.

Strangely and unusually for such a unique assemblage of very important people, there was no security, no passing through x-ray machines. It was a community of trust, the real investors in the new South Africa. To talk about a bomb is not just a comment made in bad taste. We live in a time where in many parts of the world bombs are in vogue again. They are easy ways to obliterate opponents and differences, instruments that angry people use when they reach the point of believing that political and religious disputes are no longer capable of resolution by dialogue or systems of human rights law and justice. There are many, many angry people in our country and there are hate-mongers wanting to exploit this anger, including by threatening a “return to the bush” and all that comes with that.

In this regard, perhaps the greatest testament to the generation of post-apartheid judges, of which Edwin Cameron would insist he is but one brick in the wall, is that for the most part, people in South Africa still seek to resolve our differences by lawfare rather than warfare. For a constitution that formed the core of a peace agreement intended to avoid a racial civil war, that is the greatest testament indeed.

Its future is up to us. DM

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