Interview with Justice John Mowbray Didcott
3 October 1994
Judge Corbett: Judge Didcott, I think that it is true to say that you have cherished the idea of a Bill of Rights for South Africa for many years. Is that correct?
Judge Didcott: Yes, Mr chairman.
Judge Corbett: When did you first become interested in this as a possible part of our legal system?
Judge Didcott: I suppose it was a result of American experiences which were over a number of years, but mainly in 1984 when I spent about six months there and had an opportunity to see quite a lot how that system worked. I think maybe, Mr Chairman, your own speech had something to do with it in Cape Town in 1979, and then there was that Pretoria conference in 1986 which I was also involved in. It was no sudden point but I would say from the late seventies/early eighties.
Judge Corbett: I think you have over the years up until now have been a strong protagonist of the Bill of Rights.
Judge Didcott: Yes.
Judge Corbett: We now have our Bill of Rights or chapter 3 of the interim Constitution. I presume you made yourself familiar with it.
Judge Didcott: I have, yes. I would not pretend to know every clause off by heart but certainly the general drift of it, yes.
Judge Corbett: How do you see the problems in applying it, interpreting it? Have you identified problems and have you thought about how one should approach those problems if one were a member of the court?
Judge Didcott: Clause 33 obviously is the problem area or the area that is going to cause a lot of debate no doubt and consideration, is what one does with Clause 33 particularly with regard to such areas of freedom of speech, the equality clause, the various clauses which in most systems are subject to some qualifications and exceptions, and all or just about all of our qualifications and exceptions are in the limitation clause. It probably would have been impossible to get an exhaustive or comprehensible satisfactory list in every individual earlier section.
Judge Corbett: The limitation clause of course speaks about what is justifiable in an open and democratic society, et cetera. How do you see that society? What do they mean by an open society do you think?
Judge Didcott: Open seems to be used in the context of what is also called transparency. That certainly is how most people seemed to be looking at it but it is not clear to me whether a constitutional court will share evidence on what goes on in other countries and particular with regard to their reputations for being open, democratic, et cetera, or whether one simply says that that is the sort of international norm to which a court ought to aspire without reference to particular examples. I do not know how much thought has been given to that particular aspect of the matter yet but it strikes me as one of the issues that is going to arise straight away the moment Clause 33(1) arises.
Judge Corbett: Do you think that there could be any implied limitations in the Bill of Rights? I had for example the extreme, or rather I had in mind the extreme example of a limitation upon the right of a former political party. Supposing a group wish to form a political party that espouses Nazism for example in all its ramifications…(intervenes).
Judge Didcott: Which will offend against other provisions of the Bill of Rights?
Judge Corbett: Yes.
Judge Didcott: Mr Chairman, my difficulty I have got with this is that apart entirely from the problem of these cases arising before a court, and any off-the-cuff expression of opinion perhaps being a little unwise, inevitably one is going to be strongly influenced if one is on that court by not only the arguments but by reference to such authorities, especially foreign ones because of their wide experience, would seem to be applicable but perhaps most important of the lot by the influences of the other ten members and discussion. I do not have easy answers to these questions. I do not know whether one will ever have easy answers to them but I certainly do not have easy answers to them without the benefit of a much more exacting process.
Judge Corbett: Yes, I think, as you have probably gathered from our guidelines, we feel it unfair and improper really to ask questions which would result in your being compelled to give an answer to a question which might in fact arise in practice but I took the extreme example of a Nazi party in the hopes that you would never be confronted with that actual situation.
Judge Didcott: I have often wondered whether the case would have gone the same way in Illinois if the Nazi Party of Illinois had any serious prospects of capturing the state government.
Judge Chaskalson: Could I follow on from this whole issue around the criteria of interpretation as expressed in the Constitution being the values which underlie an open and democratic society based on freedom and equality? Whose values?
Judge Didcott: Well, quite, yes.
Judge Chaskalson: Do you have, can we engage in some discourse around values and how they are to be determined? Does a Judge's own values come into this?
Judge Didcott: There are of course a lot of values that are set down for our guidance in the Constitution itself. Of course that is not a complete answer because one is considering to what extent those are subject to qualification. I suppose we will use the concept of natural justice and similar concepts over the years. There is a fair amount, there is a lot of literature on that. No doubt there is similar literature one would want to consult but what I am not clear about at all, except to the extent that of course obviously in any area like this it is impossible to keep out altogether the individual judge's subjective views on what is or is not democratic, fair, just and so forth. But it is not clear to me at all how one invokes this international spirit, and I should imagine that there is quite a wide divergence of opinion internationally about which countries do or do not fit within that framework.
Judge Chaskalson: Can you suggest any country which is an open and democratic society based on freedom and equality?
Judge Didcott: Well, not socially. I suppose one would say there are certain countries dedicated to that proposition. They would not achieve it in practice all the time.
Judge Chaskalson: Coming back to this question of values, it is sometimes said that if the judge's own values are going to come into the question, that those values are likely to reflect the upper middle class professional values from which most judges are drawn. Is that what this Constitution has in mind?
Judge Didcott: No.
Judge Chaskalson: Well, how do we then guard against that?
Judge Didcott: I think that one of the important ways one does is for those members who do come from that background to pay the most close attention to the views of members who do not come from that background but who have a wholly different background history and therefore a wholly different set of perceptions. One has got to try and put oneself, to the extent that that is possible, in their shoes too.
Judge Chaskalson: Is there anything in the Constitution which would enable the court to avoid this dilemma? Are there any values which one, objective values or objective standards one can extract from the Constitution, do you think, or is there somewhere a building towards that which would avoid this dilemma?
Judge Didcott: Well, this is the jurisprudence that has got to be built up by the process of argument and discussion amongst the members and study. We, of course, are not entirely inexperienced in that area. We have had quite a lot to do with it both in the interpretation of statutes and subordinate legislation and in the whole question of the validity or otherwise of subordinate legislation. Perhaps we have applied the standards of an upper middle class society but I have not heard anybody complain that the result was any the worst on that score.
Adv Bizos: You must be aware that fears have been expressed that an all powerful Constitutional Court may in its judgments frustrate the will of the majority of the people in South Africa which, I assume, we all accept to be something that we have to guard against.
Judge Didcott: Yes.
Adv Bizos: I want to refer you to one of your judgments if I may, and a particular passage in it in the Roffey case.
Judge Didcott: Which one, sorry?
Adv Bizos: It is called Roffey v Catterall, and I want to read the passage to you from your judgment which you probably know has been criticised by a number of people. I would like to ask you some questions about the criticisms and your view, and also whether the Bill of Rights and the Constitution might, I do not say it will be because the question may come up as a specific question to the court, have been different after the Constitution has been promulgated. You say in Roffey v Catterall 499E-H:
"Restraints on employees in contracts with their employers have usually been distinguished from all other restraints by the English courts and following their examples by ours too. By road, so it seems, the former have been approached more critically and condemned more readily than the latter. The explanation for this habit is the supposed bargaining inequality of employees which has long been taken for granted. No doubt that was their general condition once upon a time and even today it is no rarity but it is surely unrealistic nowadays, at any rate, to postulate such imbalance as a universal truism. Economic development, industrial legislation, trade unionism and other modern phenomena have so strengthened large categories of employees that their negotiating forces are often equivalent to superior to that of their employers. The same may be the result of a mere demand for services which exceeds the supply. Agreements between unequal parties are easily conceivable and frequently encountered on the other hand outside the field of employment. The distinction has therefore become archaic and artificial. Once it emerges that the covenater was the weaker party during negotiations, the Court will doubtless be aware of the possibility that his impotence was exploited, that he was induced to say in the contract what he did not really mean and that he was prevailed upon to accept publicly is fair that which he rejected privately as oppressive."
Judge Didcott: What was the date?
Adv Bizos: 1977, and I may I put it in context, some two or three years before the Wiehahn report in South Africa. The criticism that is levelled against this judgment is in the Industrial Law Journal and may I read just one paragraph? Do you want to hear before or after I read who wrote it?
Judge Didcott: I was not aware of this criticism.
Adv Bizos: It is Professor Dennis Davis, I have got it on my own by the way.
"To argue that economic development, industrial legislation, trade unionism and other modern phenomena have so strengthened large categories of employees as a negotiating force often equivalent or superior to that of employers is to reason that the general economic situation has been brought about such a radical change to the employer/employee situation that the old rule in respect of restraint clauses can be rejected. This type of reasoning, it is submitted, is unrealistic and not in accordance with the facts. Despite the changes in the work situation the employer/employee relationship is still asymmetrical as Kahn Fluend relates in a reference given points out typically the worker as an individual has to accept the conditions which the employer offers. The individual employer represents the accumulation of human and material resources and the relation between an employer and an isolated employee, the worker, is typically a relation between a bearer of power and one who is not the bearer of power. Even in England, despite the advent of trade unionism, very little change has been brought about with a pattern of equal distribution"
and reference is given,
"... and in South Africa where workers face a veritable battery of legislation aimed at weakening their organisational ability it is surely not unrealistic to postulate an imbalance between employer and employee as a general proposition. Other criticisms have been offered in…"
oddly enough, heads of argument, I know that they are not authoritative but I picked up in one or two of them, in one of them where Senior Counsel quotes authority and I have not checked its correctness, that in Germany these contracts are looked upon as immoral contracts, and I am not unmindful that the Appellate Division confirmed your approach in two subsequent cases.
But after that very long introduction the question is how did you come to this conclusion about the so largely improved position of employees in 1977? Was there any evidence put before you? Was it argued fully before you or is it a personal view of the matter formulated by what one reads in newspapers, what one discusses with one's friends? How did it come about?
Adv Gordon: Judge Didcott, before you answer, as the counsel who lost the case before you, I have nothing to do with this question. Especially the part with the result you have fully before you because it took all day.
Judge Didcott: I think the judgment has been, to the extent I remember it because I have not read it for a very, very long time but as reminded by the passage you have quoted, I think the judgment has been grossly misunderstood. What I was protesting against was the universal truism that employees by definition were in a weaker bargaining position, the case in question having been one where the employee was a pretty well yield estate agent who was able to look after himself. I protested against that as a universal truism. Nothing that I said suggested that I regard it as a universal truism that all employees, or even most employees, were on an equal bargaining footing with their employers, and to the extent that I have been involved in industrial cases which is not all that much but it has included the Aspen Zomezenzele case and others I do not think anybody could, reading those judgments, imagine for half a minute that I was reverting to mid-Victorian capitalism in my attitude towards labour relations. It may have been that because that was the target, the universal truism that employees were always in a weaker bargaining position, perhaps I did not put enough qualifications in the judgment as a protection against it being misunderstood but I do not think it really is open to misunderstanding if one reads it carefully.
Adv Gordon: Yes, I think, Judge Didcott, if I could just read to you the passage immediately before that which Mr Bizos read out to you. You mentioned a submission that I have made to you, saying:
"I thought that this counter contract description of the covenant as reasonable and to get past my client's agreement with that assessment when he signed it by attributing to him as the employee less bargaining power at that time than the respondent and consequently scant the influence over the terminology of clause 6."
So your recollection is absolutely correct. I was trying ...(intervenes).
Judge Didcott: Certainly I remember that he was a fat cat employee.
Adv Bizos: Judge Didcott, I have read the judgment as a whole, and with respect, no one could have quarrelled with the end result that obviously he was setting up in opposition in a very restricted neighbourhood, and an application of the law as it stood would have led to the same result. What I want to ask is this that is this not an example of going beyond what was necessary to decide the case in question and in expressing yourself in the manner in which you did to pass a subjective judgment over the, I would suggest, disputed power of working people in the country? This estate agent had nothing to do with trade unions. I do not think that they are and that they are unionised, and why did you find it necessary, with great respect to a great amount of trouble, in analysing the cases in England, the cases in South Africa in order to write this judgment? Let me come to the very point, on the Constitutional Court, now that we have a Constitution and a Constitutional Court, do you believe that this sort of reasoning that is evidenced in this judgment would meet the requirements of the Constitution in enforcing the Bill of Rights?
Judge Didcott: I am not trying to avoid your question, Adv Bizos. The difficulty arises with the wording "this kind of reasoning". If "this kind of reasoning" is that some employees by virtue of their powerful economic position, because they have got rare skills and there is a market for those skills, because they have got sophisticated legal advice available to them and so on, that some classes of employees are in an equal bargaining position with our employer, which may be a small business for example, I have got no problem with that kind of reasoning. I do not accept that the judgments conveyed or reflected any other kind of reasoning at all because it has certainly never been my view that a cleaner in a hospital or a worker in a factory has got equal bargaining power with South African Breweries or Anglo American who may happen to employ him because the proposition is too ridiculous for words and it has never been my view. Perhaps I erred and I was quite unaware of this criticism, so I have never thought of it, for 17 years I have been unaware of it. Perhaps I expressed myself insufficiently cautiously and should have put in many more ifs and buts but I did not think at the time that I was being misunderstood.
Prof Mureinik: This conversation makes me feel terribly nostalgic for my youth because I was, at the time this judgment was reported, a beginning lecturer at the Wits Law School. My seniors were telling me I needed to prove myself by way of publications. When I read your judgment for the first time I thought to myself this is it. It excited anger and dismay in me, and I thought here is an opportunity to prove how clever I am by rushing off and writing a dire tribe criticising your judgment which I duly did, produced a draft which I thought was very good, more or less along the line of Dennis Davis' article. There are some sentences which were perhaps in almost exactly the same terms and then I made a fatal mistake, I went back and I read your judgment again, and I realised that it had not said what I thought it said. It was much carefully framed and it was stating a much more careful and defensible proposition than the one that Dennis Davis and I were reading into it at that time. What you were saying was simply that when one deals with a case like this one should not allow one's judgment to be hampered by rigid rules. You should look at the individual circumstances of each case. You should not come into it with an assumption that every employment contract is the same, employment contracts vary one to another. You should come into it on the assumption that all commercial contracts are the same. It all
depends on the individual facts of the case. During the intervening 17 years I have noticed that that approach, the notion that you must look very carefully at the individual circumstances of the case, to be a great theme of your jurisprudence. I think it is from that theme that there flows your efforts to push back the frontiers of natural justice in many areas, particularly in the case of dismissal of an employee. You are saying let us force the employer to look at the individual circumstances of the case by granting the employer a hearing before dismissing. It is also part of the reason why you were so anxious to develop the rights to legal representation, make sure there is a proper trial where somebody runs a risk of a serious punishment in a criminal case. So I must say that I am, as I say, this conversation induces in me nostalgia and it is helpful to me because it enables me to see that there is this coherent thread of contribution running through your jurisprudence. Judge Didcott, I would like to change the subject, if I may move onto different topic. It has been said that the Constitutional Court is a political court in some sense in which the ordinary courts are not political. For example one of my colleagues published an article last year saying that the Constitutional Court would have to be, I think he meant this as a metaphor, but he said it literally would have to be the Third House of Parliament. Do you agree with that conception of a
Constitutional Court? If so, what does it mean? If not, why do you disagree?
Judge Didcott: I suppose the question turns on what we mean by political, in as much as it will deal with matters that have political implications and content, matters that would otherwise be and might still be within the area of political controversy, yes, I suppose so. But the process is surely entirely different, from the process, the normal political decision-making process. That is not to say that is something entirely different in a vacuum, obviously it cannot be.
Prof Mureinik: If I could just clarify the question. I take the force of the claim to be not that it will deal with matters which have political consequences because clearly it will do that. The force of the claim I think is that it does not adjudicate in the normal way, it adjudicates politically in a sense in which ordinary courts do not hence the metaphor it functions like the Third House of Parliament. Do you agree with that conception of a Constitutional Court?
Judge Didcott: Yes, I agree with it as long as one is giving the term "political" a very wide meaning. In our country, as no doubt in many others, issues of capital punishment for example are political in that there is political debate about them. In the United States certainly questions of affirmative action are political but the important thing is surely that the result is not achieved by the adherence to any political programme or party line but after arguments, reason to argument and most important of the lot in judgments that have to be persuasive and carry conviction because of lack of any court's power to do anything else except that. It have to be persuasive and have to carry conviction with all segments of the society but perhaps particularly with the legal profession in all its sections simply because a lot of the reasoning might be difficult for a lay person to understand or he might not have the judgment to understand. He may simply read an abbreviated report in the newspaper. So while there may be a large overlap, is not the methodology significantly different of how one deals with it?
Prof Mureinik: Let us develop that specifically. You are approached to statutory interpretation generally.
Judge Didcott: Yes.
Prof Mureinik: Is treated by many teachers of jurisprudence and the interpretation of statutes in our law schools as perhaps the model of how a judge ought to approach statutory interpretation. Do you think that your method of statutory interpretation is materially different from the method of interpreting a constitution? Is it a different kind of exercise and, if so, in what way?
Judge Didcott: I thought about that myself. I would say yes, it is different but perhaps the difference is not as great as is sometimes said to be the case when constitutional interpretation is contrasted with statutory interpretation, and the reason, the basic reason for that comparison and distinction which is drawn seems to be that the purpose of statutory interpretation is to ascertain the intention of Parliament from the words used and therefore a rather strictly linguistic construction of the words. Now that is of course an oversimplification. I have always thought that the intention of Parliament is simply legal shorthand for a more sophisticated concept because one knows perfectly well that a large number of people sitting in Parliament might never have applied their minds to a problem at all or had any thoughts on that particular aspect because it had not yet arisen and was not in their minds. Is the intention of Parliament not simply what the law calls the rules of our Common Law particularly with regard to natural justice which will be applied as a criterion for statutory interpretation unless Parliament makes it clear that is not what it intends by using language to the contrary? If it does not make it clear that that is not what it intends, then one says ah, well, that is what it did intend but it does not mean that it subjectively intended it. It means, if you like that, it is deemed to have
intended it because there has not been an exclusion of the Common Law principle. Now if that is right, I suppose it is controversial, there is not all that difference, although there is some. Certainly the Constitution enjoins a court, whether it is the Constitutional Court or any division of the Supreme Court dealing with the matter that does not involve the validity of an act of Parliament, to take account of the basic values in the Constitution. Therefore there is obviously far less emphasis on the strictly linguistic treatment, and more of an emphasis thrown onto the broad objects which, while it is different and will require not only Judges but advocates and attorneys too to change gear a little bit when it comes to the interpretation of the Constitution, I am not sure that it is all that different from what was going on in the 1980's during the states of emergency with regard to administrative law decisions particularly in the area of Emergency Regulations and detention without trial.
Prof Mureinik: So in other words what you are saying is that your approach to statutory interpretation gives great weight to values of a common law such as speech and equality and accountability and individuation to deal with the last question?
Judge Didcott: Yes.
Prof Mureinik: It extracts those as deep principles of Common Law and elevates them to the status of a sort of implicit Bill of Rights in the interpretation of statutes.
Judge Didcott: Yes.
Prof Mureinik: So there is not such a great gap between your approach to statutory interpretation and, in other words what you are saying is your approach to statutory interpretation foreshadows what we have now got in constitutional adjudication.
Judge Didcott: Yes, obviously it has got to be developed in a different direction and refined. I do not think, you say mine. I do not think this is peculiar to me, I mean Crimson Johnson way back laid down the rules for the so-called benevolent interpretation of by-laws and other subordinate legislation. It was not an idea that I invented, it has been around for a long time.
Prof Mureinik: Well, I hope I am not surprising you, Judge Didcott, if I say that in the law schools of this country you are regarded as the premier exponent of this approach.
Judge Didcott: Well…
Adv Bizos: Do not be modest, Judge Didcott. You are really the pioneer against sterile legalism and the interpretation of statutes in the application of our law. If you compare sterile legalism with what is required with constitutional interpretation there is a vast difference but then you have never been an advocate of sterile legalism.
Judge Didcott: Well, that is why the new Constitutional era is so exciting.
Mr Ernstzen: Judge Didcott, if I might follow up and maybe you have just alluded to the answer now, what made you decide to accept nomination as a candidate and change the route from where you are towards the Constitutional Court?
Judge Didcott: Because all my life I have lived under a different system altogether, certainly all my adult life. I will not pretend I noticed much about it when I was a child. I think this is the most, apart from being intellectually enormously exciting and stimulating, as I now get towards the last years of my professional life, I would like to have the opportunity to do something which really is a positive contribution. It is a matter of personal satisfaction. It would give me enormous personal satisfaction to be involved in shaping or helping to shape, assisting to shape the new thinking about this especially after lots of years of the shaping not having been very decisive.
Mr Ernstzen: Thank you.
Judge Chaskalson: Can I go back to something which you raised a little earlier, round about, when you were dealing with the question of the intention of the legislature in interpreting statutes? We know that in the United States of America in that huge debate around original intent, and without asking you to enter that debate or even a similar one here, do you think that the intention of the framers of this Constitution is a relevant factor in its interpretation?
Judge Didcott: Do you mean their intention as gathered from, when I say the wording I do not mean the narrow wording, as gathered from the overall drift or do you mean as revealed by whatever information may be available to us about what happened at Kempton Park?
Judge Chaskalson: Either.
Judge Didcott: Because they are very different.
Judge Chaskalson: Well, would you like to talk about that?
Judge Didcott: Having been brought up in a totally different school from the Americans I find it very difficult to tune into the wavelength of actual subjective intention. I mean you or I might as a Member of Parliament vote for a bill because we are satisfied that means the exact opposite of what the Minister introducing it tells Parliament it does mean. That admittedly may be a rather far-fetched argument or example but I suppose that, I think that one must clearly take account for the immediate and short-term future of the history of this country giving rise to the need for a Bill of Rights like this. Whether in a 100 years' time that would be an important factor, who knows? I mean the argument in America is ridiculous because it must surely mean, and that is sorry, with due apologies to Justice Bork. If the Americans had thought about it at the time they did not intend the equality clause to include women. They certainly did not intend capital punishment to be hit by the idea of cruel and unusual punishment and so one goes through the whole thing. In fact they did not intend the equality clause to relate to blacks either, and to take the mind set of people who lived 200 years ago, I would think is not a very helpful way to interpret a constitution but when one is close in time to the events that gave rise to it, surely one must take affirmative action. One has got to look at what has given rise to the demands and cries for affirmative action. In 100 years' time it may be irrelevant.
Judge Chaskalson: But do you think, when one is looking at the Bill of Rights, may not the same problem arise, that different people agree to a Bill of Rights or wanted a Bill of Rights for different reasons?
Judge Didcott: Yes.
Judge Chaskalson: So can one never work out what was the reason for the Bill of Rights other than to say that there are many reasons?
Judge Didcott: The property clause might be a good example of that. I am not quite sure what they had in mind in guaranteeing children the right of parental care but how that is going to be enforced can wait for the future. I do not know how an orphan enforces that right but that is by the way.
Senator Radue: I would just like to ask Judge Didcott, he seems to really accept that the American experience can be very valuable to us. Does he consider that there is in South Africa a place for fundamental obligations to be written in with the fundamental rights in the Constitution?
Judge Didcott: Does the question relate, senator, to the next Constitution and what I think should be in it?
Senator Radue: The next Constitution possibly.
Judge Didcott: I think one is still recovering from all the effort that went into the first Constitution. What sort of obligations do you have in mind because the problem may arise of enforceability.
Senator Radue: Yes, the obligation to pay tax, things like that because the Americans have got a set of 12.
Judge Didcott: There is an obligation to pay tax enforced by statutory penalties as matters stand. Unless somebody suggested that was unconstitutional there is surely no reason for the Constitution to get into that field. It is covered by the ordinary statute law of the country.
Senator Radue: Very well.
Senator Mchunu: Judge, may I just return perhaps a bit to the question of values? The question arose a few minutes ago, it was asked whose values. I do not quite understand what the Judge was saying. The Constitution is redolent with values, certainly. It talks about equality, it talks about reasonable, what-have-you. The question which arises in my mind is when you determine those issues, equality, reasonableness, whatever, what values are you going to use as the yard stick to determine the existence of such a factual condition? Frankly speaking, Judge, is a white, upper middle class judge in a position to apply the values which the squatter from Crossroads will apply in determining whether any action is reasonable, whether any factual situation is equal? Is that possible?
Judge Didcott: It can be very difficult. Obviously some of the, I should not say obviously, I am sorry, I would think that a large number of the values we are talking about are universal, and are generally accepted even by the countries that do not observe them very well but nonetheless pay lip-service to them. One does not require any great, perhaps imagination or insight to understand how disadvantaged a person is who is defending himself in a court where a foreign language is being spoken on criminal charges which he may not understand without any legal assistance at all. One can understand large areas of appalling and acute hardship. There may well be other areas which simply because they have neither flown through one's own personal experience or perhaps more significantly have not arisen in any litigation one has been involved in, either as a judge or as an advocate or as an attorney, where one needs help. That is why I set great store for those who are on the Constitutional Court about the opportunity they will have to benefit from the experience of others whose personal experiences, their experience of life and whose attitudes may be very, very different. They will be told things and understand things that have not occurred to them before. I think this may be particularly important in the very, very controversial affirmative action area where the average white middle class attitude is to say this is segregation in reverse. I do not believe that it is a breach of the equality clause
for somebody whose abilities may be the same as or greater than mine but who has not had the same experience which I had been fortunate enough to have and it is about time he was given an opportunity to gain that experience. I also think there is plenty of evidence to indicate that even people who may appear on the face of it to be somewhat inadequately qualified for a particular job, there is enormous capacity to grow into the job and to acquire the skills. One has seen this time and time again when one thinks of it in one's own sphere and in other's spheres. I think that it is very important that a court like this court should on that issue, which I have given as an example, and there are plenty of others, should have the input which will counteract any tendency not to question and to assume the eternal truth of white middle class values.
Senator Mchunu: Judge, you have talked about the criminal process, if I understand you correctly. Now Judge, the paradigm which has been used in the criminal process in our country has been crime repression for as long as we know, and as I understand the new Bill of Rights the personal rights model is being introduced but in America, obviously, there has been tension on the theoretical level between these two paradigms to the extent that the Warren court for instance was criticised for leaning too much towards the accused, and it was accused of actually putting the criminal process or the police in chains so that criminality was let loose in America. That is how for instance Richard Nixon got the presidency because he emphasised the crime repression model. Now in South Africa, as we are now, what do you think is the possibility of this tension arising and what do you think are the steps that can be taken proactively to ensure that this tension does not arise with the result that the whole judicial process is cured in favour of the state or the subject?
Judge Didcott: I think that a Constitutional court would have to be very careful not to get itself involved, if it can do consistently with its task, in a major showdown with public opinion because that could be very damaging to the future of constitutional government. That is not to say that it must strive always to give judgments that are popular with the public. It may have to give some, a very good example may be capital punishment. I am quite sure that a large, it is a guess on my part, I better not say, I am quite sure Mr Bizos will ask me where I get the statistic from. My guess is that probably quite a large majority of South Africans are in favour of capital punishment but in America the whole thing has got really so esoteric. I mean it has become, it is a whole area comparable only to mid-evil scholarship, mid-evil theological scholarship. I really cannot see us wanting to get in a situation where the argument has to be taken to the Constitutional Court as it has been saying to the Supreme Court that it is a violation of the constitutional bar to unlawful searches and seizures to raid somebody's trash bin to see what he has thrown away there or that it is a breach of the separation of state and church to have a Christmas … (inaudible) communis. I hope we will not get involved in that sort of nonsense, quite frankly, because we have got far more important matters to deal with than that, than those. But yes, I think that particularly in the area of criminal law we have got it already.
There are many people throughout the country, all levels, who think that we Judges are far too lenient on criminals. That complaint gets expressed time and time again, that tension exists already, and of course it exists because the public sees crime merely as a frightening statistic, and the public is not involved in the individualisation that takes place when the particular circumstances of a case has to be looked at. So I do not think one will ever resolve that tension but one must obviously try and keep it within manageable proportions.
Adv Bizos: Judge Didcott, the United States Supreme Court kicks for touch from time to time by saying that this is a matter for the legislature and not for us. On your reading of this Constitution, is there room for that sort of reasoning if it is a constitutional question? Would be an answer to say let Parliament decide as they apparently do with some of the very difficult questions in America?
Judge Didcott: I suppose, I am guessing because I have not gone into this, you would have to bring it within Clause 33 and say that a democratic country based on democracy and equality would leave that to the legislative process.
Adv Bizos: But the Constitution enjoins you.
Judge Didcott: The off the cuff answer is, and think that is the only way one could do it but I may be wrong.
Adv Bizos: But the Constitution enjoins you to have regard whether it is reasonable and whether it is permissible in a democratic society.
Judge Didcott: Ja, that may be the answer to it.
Adv Bizos: Is the cop-out possible in your view in terms of this Constitution? You do not have to bind yourself.
Judge Didcott: Well, of course there is a cop-out provision in that the Constitutional Court has the power and quite what policy it will devise in exercising it one cannot guess at the moment to refer matters back to Parliament in appropriate cases, and not to strike down the legislation in the meantime but to give Parliament another bite of the cherry. On second thoughts I think it would be that clause rather than Clause 33 where the question is more likely to arise.
Adv Bizos: But that would be limited to matters of legislation which is referred to.
Judge Didcott: Yes, it would.
Adv Moroka: Judge Didcott, can I ask you to step back or step down from the Bench and ask you a question that has nothing to do with you being a Judge. I will not ask you whether you are a member of a political party but you have been cited as being one of the pioneers in the push, to push the frontiers of natural justice. The question that I want to ask is have you ever done that outside the arena of being a Judge in your personal capacity or in any other capacity?
Judge Didcott: Well, I was a member of a political party in the decade from 1950's and into the early 1960's. In a small way I might have been involved in such activities but would have been part of a collective effort. It certainly was not anything where I individually or personally did anything that was worth mentioning but since that party folded up I have not belonged to any political party.
Adv Bizos: Well, do you not go a bit further back, Judge Didcott, in your student days?
Judge Didcott: Oh yes.
Adv Moroka: What I was trying to find out is other than making pronouncements on the Bench, what else, if anything, have you done to question the regime as it was then?
Judge Didcott: No, not since I became a Judge because my activities have been restricted to judicial activities. Mr Bizos reminds me of the days when he and I were involved in the battle to, the unsuccessful battle as it turned out to avert university apartheid. That is really going back to the beginning of the 1950's but again it was mainly, you know, it was debates and talk. It did not and it was unsuccessful. It did not amount to any great achievements. In fact the whole thing failed but we tried within the limits and methods of protest which seemed to be available in that era or were thought to be available in that era.
Adv Gordon: Judge Didcott, there are two questions that I would like to ask you because they have been raised before, and I think you should be given the opportunity of answering them. In the first instance, I think it is very clear that the Constitutional Court is going to have an enormous amount of work to do over a pretty concentrated period, and at the time when we were discussing the short list, the interviewees, I think you were in hospital or you were ill. Are you able to tell us anything about your health? Are you ...(intervenes).
Judge Didcott: Oh, it was an attack of pneumonia of viral pneumonia which the radiologist, with whom I dealt, said he had never seen anything like it in Natal before. This winter he had more cases of viral pneumonia than he had in his entire professional career. Generally speaking I would say that nothing much, my health is such that I can certainly do any job in so far as one can foresee. I mean obviously any of us could suffer a massive coronary tomorrow or the next day but I have no reason to believe that I am at risk in the short-term, anyhow.
Adv Gordon: Thanks. The other question I want to ask you is this, it is a delicate question, I want you to appreciate that I am endeavouring to put it as delicately as I can to you. You have been a judge in Natal for a long period of time. You have been a judge as well at a time when the law gave a judge in a murder trial, who found the accused guilty of murder without extenuating circumstances, no option but to pass the death sentence. Now you have never passed the death sentence. It may be suggested that there must have been occasions or were there occasions where on the one hand the law, I appreciate you have not now got to the point of extenuating circumstances, on the one hand the law would have required, if you had found the absence of extenuating circumstances with your assessors, for you to pass the death sentence and your own personal views of capital punishment, did they ever come into conflict?
Judge Didcott: No, they did not, and that was extraordinarily fortuitous. The position is that I have never had a case which has been so bad on the merits and has involved somebody of fuller age and reasonable mind, because I am not talking about cases where one has had a mentally defective accused person or somebody who has become a State President's patient. I have never had such a case. I have had certainly cases where some Judges in the country would have imposed a death sentence. I have never had a case which in my estimation I am the only one who would not have. In fact I will take that further. The worst case I have had has been one in which in my estimation at least half the judges in Natal alone would not have passed the death sentence. Further to that I would like to add this. I have invariably had, especially in serious cases always, assessors who are very experienced retired Regional Magistrates. We have never had a disagreement on whether there were extenuating circumstances or not. So it may sound an extraordinary state of affairs for me to describe it as fortuitous but I really do believe it is fortuitous that I have never faced that dilemma.
Adv Gordon: Thank you, Judge. I think I have just got one last question, and that is that if you are appointed to the Constitutional Court please could we have that judgment in the copyright case?
Judge Corbett: On that happy note, I thank you very much, Judge Didcott, for your attendance.
Judge Didcott: Thank you, Mr Chairman, and Members of the Commission.
The Constitutional Court has made reasonable effort to ensure this is a proper reflection of the candidate's interview with the Judicial Service Commission. However, the nature of the recording and transcription process means that accuracy cannot be guaranteed.