Opinionista Mark Heywood 5 December 2012

In honour of Arthur Chaskalson, 1931-2012

Former Chief Justice, Arthur Chaskalson died on World AIDS day 2012. And there is some symbolism in his death on this day, given that it was the tenth anniversary of the year in which he handed down a judgment on behalf of the Constitutional Court in Treatment Action Campaign (TAC) case. 

The judgment settled a dispute over whether the government had an obligation to implement a relatively simple health programme to reduce the risk of mother-to-child HIV transmission. It ruled that it did. In many ways the case, combined with TAC’s social mobilisation, broke the back of AIDS denialism. Today, 1,7 million people are receiving anti-retroviral (ARVs) medicines in SA, and owe their lives in no small part to Chaskalson’s court. Because of ARV drugs, vertical transmission of HIV has been reduced to approximately 2.5% from 25%. Because of the TAC case, babies have stopped dying of AIDS at Cotlands Baby sanctuary.

In 2002, the TAC case was proof of the power of the Constitution as the supreme law; it was proof of the court as the ultimate arbiter of political disputes, through its interpretation of the Constitution. We might say that the case was proof of the Constitutional concept. Although many cases had preceded the TAC case, it was the first post-Apartheid political trial, the first test of whether the government would submit itself to the Constitution and the order of its highest court – in the face of fiercely held political views of the President Mbeki and Health Minister Tshabalala-Msimang. Indeed, Geoff Budlender, the attorney in the case, said the political heat around the trial reminded him of what it felt like during the terrorism trials. 

But despite this, the government swallowed the bitter pill. It has done ever since. We can only hope it will continue to do so.

The Court has acquired a reputation as a court of justice, and in all of its guises, Chaskalson’s life appears to be an embodiment of a belief in the ordering and organising force of law as a foundation for social justice. His personal role as an advocate in the most difficult of times, his founding of the Legal Resources Centre (LRC), his role in the Constitution-making process, and the leadership he provided as Chief Justice. 

But what struck me personally about Chaskalson – something that may be one of the greatest things we must carry forward from his life – was his quiet humility and his recognition that it takes diverse actors to make a legal system just; the judiciary and the formal legal profession are but one part. 

It is rare that a person who has ascended to the Justinian heights he had will step down and place himself quietly alongside those just beginning a legal career, and egg them along into the direction of seeing the practice of law as a tool for justice. I was felt humbled when each September, for five years in a row, I saw Chaskalson participating in the annual seminar of Students for Law and Social Justice (SLSJ). Unassumingly he would take a seat alongside students a quarter of his age, participating as an equal in debates and discussions, few of them realising what a great man they sat beside. 

Chaskalson was a great jurist but not a narrow one. As he is reported to have pointed out at a lecture in Cambridge, 2007: 

“In a democracy, parliament and civil society are also defenders of the rule of law and it is essential that they should play their part in its protection; that the centre should hold, that the best should not lack all conviction; and that things should not fall apart.”

He therefore also stood for and quietly promoted an active civil society. In 1978, he founded the LRC to represent the victims of manifold injustice under Apartheid – and advance their status through law. But he also saw the LRC through the political transition to become a leading organisation that uses the law for justice, not for any political party (even those that claim to be still the sole representatives of justice). Just as the LRC knocked holes in the wall of the Apartheid fortress, through which the mass of people streamed, so too has it knocked holes in bad governance post-Apartheid, keeping hope of people’s power and accountable government alive.

In this respect, his interest and close involvement with the new social justice organisations that use the law, such as Equal Education, SLSJ and SECTION27 was no surprise. These organisations are currently under fierce attack by the old Stalinist guardians of a pre-Constitutional politics, people who seem not to understand that the Constitution does not only create rights to campaign for political parties, but also for “causes” [see section19 (1) (c) if you don’t believe me!]. 

Although many politicians will now claim him, Chaskalson’s exemplary life broke with that of many of his political peers. He proved that elder statesmen who are our heroes do not need to be accompanied through the remains of their lives by blue-lights, pomposity, arrogance, an expectation of slavishness and the trappings of conspicuous consumption. He showed that after public service at the highest level it is possible to return to the public. Nelson Mandela is the only other person like this. Perhaps this why Chaskalson and he had so much in common.

If this is Chaskalson’s personal legacy, his greatest professional legacy must be the manner in which the Constitution and its rules have become so central to our political and social life. As we have seen in recent months with the spate of political disputes, all roads seem to run back to the Constitution. 

Look for example at the importance of judgments of the last few years such as Glenister (ordering parliament to rewrite the law establishing the Hawks to guarantee proper independence), Simelane (finding that the appointment of Menzi Simelane was “constitutionally wanting” as he was indeed unfit to be National Director of Public Prosecutions) and more recently OUTA (finding for the government that the Gauteng North High Court had overstepped its powers and violated the boundaries that separate powers). 

But the sudden centrality of the courts would not have been what Chaskalson wanted. This is because the resort to the Courts reflects a failure of the other arms of government, Parliament especially. If the conduct of government was in the manner envisaged by the Constitution, if there was growing equality rather than growing corruption, openness and debate rather than threats of fratricide, the courts would have a far smaller role to play. And that would be fine too.

But unfortunately with a dearth of vision in large parts of the faction that currently leads the ANC, it seems this trend will continue for some time. Economic crisis and political bankruptcy places us on the cusp of a rocky period in the life of South Africa and the world. If our government cannot rise to protect and advance all our interests, and particularly those of the poor, then the Constitution will have to be enforced through the courts and the justice movements that are emerging. 

But if we are to really guard Chaskalson’s legacy, we must now be ready to protect the courts from political contempt. The shenanigans over the Zuma spy-tapes may be a harbinger of contempt of courts. Those who have been loud in praise of Arthur may at the same time be moving to unplug the cables that animate our Constitution. We must hope and appeal that they do not. 

If they do, we must resist them. DM


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