Judicial Service Commission Interview with Adv. Pius Nkonzo Langa
Thursday, 6 October 1994
Judge Corbett: I see from your CV that fairly recently, I think it was last year, you did a trip to Germany and to Hungary visiting court systems and in particular seeing something of Constitutional Court in those countries. Would you care to tell us a little bit more about the trip and what your impressions were and what information and so on you gained which might be useful in this country?
Adv. Langa: Yes, well firstly the trip to Germany, the intention was to look at the Constitutional Court there. We were a small group and we travelled around Germany, we went to a few centres. One of the things which impressed us with regard to that particular trip was the fact that a lot of people, the population of Germany, a lot of people would like to have access to the Constitutional Court, they would like their matters to be heard by the Constitutional Court, but fully 98% or thereabouts of requests for challenges do not get to the Constitutional Court itself. They get siphoned off and 2% actually take part or are heard by the Constitutional Court. Now that impressed me because I know how long and how badly people in this country have been waiting for a Constitutional Court and I started wondering what is going to happen if the Constitutional Court became overloaded and if many of those matters which people would like to be heard by the Constitutional Court do not actually reach it. But I think it is a reality that not everyone who wants to be heard can be heard and that is an example I got from Germany.
Judge Corbett: Did you gain the impression that there was dissatisfaction amongst the 98% who did not get their cases before the court?
Adv. Langa: The matters were handled in a different way. I did not get the impression that there was dissatisfaction because it is an arrangement which has been made. But then of course one did not get to speak to the people concerned. I would think it would be unrealistic for all the matters to be heard even in Germany by the Constitutional Court simply because of the volume which would have to come to the court. The sameness of matters also, it would be impractical to do that and I think that once there is that kind of understanding that the Constitutional Court can only rule on norms and rule on standards, make certain decisions which have to be followed, I think once there is that understanding this is obviated. But the other thing which I was impressed with was the composition of the court itself. In Germany the Judges of court operate in senates, in two sections and each Judge of course is assisted by learned assistants who do a lot, who assist in research. And I thought that is something one might recommend to the Constitutional Court here.
Judge Corbett: Would you be in favour of each Judge having his own law clerk as it were?
Adv. Langa: I would certainly be in favour of that, yes. I think it would be very helpful, very useful and it might also assist in dealing with the volume which the Constitutional Court will have to deal with.
Judge Corbett: Have you given any thought to a possibility of some sort of sifting process in this country as far as the Constitutional Court is concerned?
Adv. Langa: Yes, I think there would have to be a sifting process. I think for instance there would have to be a process which eliminates matters which have been decided before. There would be no point in hearing the same kind of complaint over and over again. But then of course the problem is with different facts. You are still going to have your backlog, I do not quite know how the sifting should be done, but a suggestion I would make is that maybe before matters get heard by the Constitutional Court fewer Judges maybe should go through the complaints. I would imagine that all the complaints possibly have to be seen by a Judge or a number of Judges, so there could be division of work in terms of what batches of complaints are heard by who and then those Judges have got to certify that this is a matter which should be heard by the Constitutional Court. Where there are clear precedents it might not be necessary for the matter to be heard at all.
Chaskalson J: Mr Langa, in the transitional Constitution provision is made for a Human Rights Commission whose task on the, apparently on the framework of the Constitution is to deal with constitutional complaints made by members of the public who are seeking some form of redress and who bring their complaints to the commission which will then process them, try to negotiate them or solve them administratively and if the commission thinks that they are appropriate for a court, then refers it to the court. Now as I understand your account of the German court, what the German court does is it really contains within one structure both the complaints receiving system and an adjudication system at a later stage. Do you think that the separation of functions, of a Human Rights, I have forgotten its exact term, whether it is a council or a commission, Human Rights Commission I think it is called, a Human Rights Commission separate from the court. Do you think that will be more or less appropriate than the German structure which has both the complaints receiving structure and an adjudication structure in one institution?
Adv. Langa: I think the existence of a Human Rights Commission and assigning functions of that nature to it might assist. I am not too sure though that that would be the complete answer. I think the Human Rights Commission itself although it will have a capacity of dealing with more complaints and actually examining more complaints because it will be a commission which is not based in one place, but it will have staff all over the country, maybe it might assist in filtering those cases which need to go further to the Constitutional Court. It would be an answer, but I am not sure that it will be the complete answer. I think there would still be a need for the court itself to devise some means within the court itself of looking at at least some of the complaints. There would be some very serious complaints. I am not sure that one should rely on the Human Rights Commission for instance to say this is a matter which has been decided, there is precedent on that and so on. There could very well be mistakes made and omissions of matters which really should be going to the Constitutional Court.
Chaskalson J: Of course some of the matters will have passed through other courts before they reach the Constitutional Court.
Adv. Langa: Yes.
Chaskalson J: Either the Supreme Court or the Magistrate's Court.
Adv. Langa: That is so.
Chaskalson J: Can I leave this topic altogether and go to something totally different. We see from your curriculum vitae that you really started your career in law as an interpreter?
Adv. Langa: The correct designation was interpreter/ messenger.
Chaskalson J: Yes. I would like to talk to you about the language clauses in the Constitution. First of all before we get there, as far as ordinary, the judicial process is concerned, the hearing of cases in the Magistrate's Court, do you think, and in the Supreme Court for that matter and all our courts, do you think the interposition of an interpreter between the accused person and the Judge presents any problems as far as the administration of justice is concerned?
Adv. Langa: Well I think in an ideal situation obviously there should be no interpretation. The witness should be able to communicate what he or she wants to communicate and the court should be able also to communicate in the same language. But obviously we do not have an ideal situation. Drawing from my experience as an interpreter and at the end of my career as an interpreter I put in about 17 years, I would say that the
interposition of an interpreter is both good and bad. It is good in the sense that it is indispensable in the administration of justice as we have it to have an interpreter. Many of the interpreters are very competent. They are able to communicate, but it also depends on the status which the interpreter has. One obviously needs an interpreter who has full confidence in himself, who is fully proficient in the languages in which he or she has to interpret in, and I would like to say that that has not always been the case, particularly in the lower courts. The language problem is indeed a problem in the courts. Interpreters of course are taken off the street, they come from school and they are taken into court. During my time that used to happen without any prior training and in my entire career I think we put in two separate months of training, what was called an interpreter's course. The first one I underwent after some three years in the civil service when I had tried to interpret as best I could simply by being guided by the Magistrate who did not understand the other language. But then of course the last
session, the last month's training was what was called a senior interpreter's course. And by that time obviously I had gained a lot of experience and we had Supreme Court interpreters with us. But that was after a period of some ten years. So at that time the courses themselves, or the get togethers, if one may call them that, were very few and far between. I would suggest that the whole system of using interpreters should be looked at again, because this is a source, potential source of miscarriage of justice. We have been in the habit of using English and Afrikaans as official languages. I know for a fact that some interpreters are not proficient, fully proficient in both languages. I felt during my career as an interpreter at times that I was compelled to interpret in Afrikaans when I was not too happy with the standard of my Afrikaans. But everyone gives you encouragement and because they give you encouragement you feel that you must exercise yourself and use the language. I am not too sure that that is the ideal thing in terms of the administration of justice. I think it might be dangerous, people must feel they are proficient.
In our travels in Germany and other places we were assisted by trained interpreters who actually go through a course for a number of years. I think in Germany we were told it is two years, an interpreter's course. These are people who are, who become very proficient in the art of interpreting and of course they improve their language and you are able to get by with their kind of interpreting. You have confidence in that and I think we should get to some sort of situation where we can improve our standard.
Chaskalson J: Do you think the language clause of the Constitution which makes provision for eleven languages, do you think that that is going to present any practical problems of implementation?
Adv. Langa: I think initially it will, but we need to put in a lot more resources. We need to actually consider what an interpreter is and who he is. We need to train people. I think with some training possibly after a short time we would be able to make up the leeway. I think it is necessary, I think we have just to come up to scratch.
Chaskalson J: In relation to the Constitution as a whole do you see any particular problems that the Court itself is going to face in the future in relation to the duties it is going to have to discharge. You have talked of the practical problem of managing the case load, but can you talk about any particular problems of substance that you can see which may have to confront the court?
Adv. Langa: I would say the main problem will be that of managing the case load. In terms of substantive problems I think issues of interpretations will be problematical, particularly where we have to deal with systems of law, such as Customary Law and so on. But those are substantive problems and I think that is the reason why the Constitutional Court has got to have to grapple with those.
Chaskalson J: What do you think the public perception might be if a Constitutional Court overrules the decisions of a democratically elected Legislatture, how is the public likely to receive that?
Adv. Langa: I think that depends on acceptance by the public of the Constitutional Court itself, of the way it is composed, of the mechanisms which gave rise to it. I think the principle of having a separation where the Court stands independent of the legislature and of the executive and is seen to be fiercely independent. I think it is a good system and I think that is what the people out there want. So I do not think there should be a crisis of confidence in the Constitutional Court provided it has the legitimacy which is expected of it.
Chaskalson J: Thank you.
Adv. Trengove: You had some involvement with the negotiation process at Kempton Park, is that correct?
Adv. Langa: That is correct.
Adv. Trengove: Could you just describe it to us?
Adv. Langa: I was in the technical team, technical committee which was dealing with identifying discriminatory and oppressive legislation.
Adv. Trengove: Oh, I see. So you were not involved in the process of creation of the Constitution itself?
Adv. Langa: No, no, I was not.
Adv. Trengove: I take it though that that exercise would have involved an interpretation of the Bill of Rights particularly in order to identify the unconstitutional legislation?
Adv. Langa: Well the task of the committee was actually to look at all the old legislation to identify what was obnoxious in that old legislation, what was repressive, what was discriminatory in term of race or gender.
Adv. Trengove: Has the Constitution come up in your practice at all since April?
Adv. Langa: No, it has not.
Adv. Trengove: Thank you.
Adv. Gordon: Mr Langa, we are as you know, the qualifications for a Judge of the Constitutional Court includes a requirement that the Judges be independent. We have interpreted that as including independent of a political party. Now you have been a person who has had a high profile with the legal matter that interested the African National Congress. We have asked each candidate this question and I must ask you the question. Are you a member of the African National Congress?
Adv. Langa: Yes, I am a member of the African National Congress.
Adv. Gordon: And if you are appointed to the Constitutional Court would you resign your membership?
Adv. Langa: Yes, I would resign, I think it is very important to be neutral and to give that perception of neutrality.
Adv. Gordon: And you do appreciate that many of the cases that will come before the Court would be cases involving a Government in which the senior partner is the African National Congress and that does not cause you any problem, or potential conflict or does it?
Adv. Langa: I am a lawyer, it causes me no problems at all.
Adv. Gordon: Thank you.
Judge Howard: If you are not appointed to the Constitutional Court Mr Langa, would you be interested at some stage in a seat on the provincial division of the Supreme Court?
Adv. Langa: I would have to consider the offer when it comes, but I have no objection in principle.
Adv. Bizos: Adv Langa, you spoke about learned assistance being appointed to members of the Constitutional Court. You are the chairperson of NADEL and in contact with many practitioners. Mindful of the fact that if we are going to have a representative judiciary in relation to gender and race, would the members of NADEL and other practitioners who have come from the disadvantaged group of our profession be interested in your view in accepting appointments as learned assistants to members of the Constitutional Court?
Adv. Langa: Yes, I have no doubt they would. We in NADEL believe that one of our missions is to bring about normality in legal practice, also we are committed also to doing whatever we can to see to it that the judiciary also becomes normal, and by normal I mean in terms of getting away from a system where lawyers were drawn from one section of the population to be Judges. Now we think it is very important speaking as NADEL that there should be training of lawyers in various fields, particularly in research and in those areas where they have not had access to it in the past. And I would think that getting people, lawyers, trained lawyers, to assist in the work of the Constitutional Court as law clerks or whatever position is created for them to assist Judges I would imagine that that would be very welcome. It is the sort of thing that we would want to see happening. We are mindful also of the fact that apart from the need to get representation in actual legal practice or even close to judicial work, getting representation from people of other colours, there is need also to balance the gender issue and we are always on the outlook for women who can also assist in making up the balance. There is a tremendous imbalance at the moment.
Adv. Bizos: One other question Adv Langa, although you were not a member of the technical committee that drafted the Constitution, were you a member of the ANC's legal and constitutional committee?
Adv. Langa: Yes, I was.
Adv. Bizos: Was the function of that committee to prepared drafts for the negotiators and also to critically assess the drafts of other political parties for the negotiators?
Adv. Langa: Yes, that was the function.
Adv. Bizos: Did you take an active part in the drafting of your party's proposals and critically analyzing the proposals of others?
Adv. Langa: I took an active part in that, yes.
Adv. Bizos: And that which you helped to draft did any substantial portion of it find itself in the Constitution and the Bill of Rights?
Adv. Langa: Yes, it did. I was as a member of the constitutional committee of the African National Congress instrumental though part of the group that came up with a draft Bill, an ANC draft Bill of Rights and I would say looking at the Chapter 3 of the Constitution that the substantial bit must have come out of that and the later additions of the draft.
Prof. Mureinik: Adv Langa, as one of the authors of the ANC's draft Bill of Rights, you would have been responsible for introducing the notion of an open and democratic society into the constitutional debate, the notion which has become so central to this Constitution. Against that background what is your attitude towards this open process, do you think that, this is a question we have asked a number of candidates, do you think that the commission was correct to engage in this series of public hearings to select nominees for the Constitutional Court?
Adv. Langa: Well, speaking as a person who is sitting on this seat now, I must say I would have preferred not to be interviewed at all, but I realise that the interviewing process is useful and I think it is essential and it is correct, and once there is agreement that the interviewing process is correct, I see no reason why it should not be open, and I am fully in support of having open hearings. I think it is important that the Judges of the Constitutional Court should be known by the people out there, and I think it is important that the people out there also should have faith in the people who are eventually selected. So I think it is a good system. I am fully in support of it.
Prof. Mureinik: Do you think that next time we undertake this exercise, if ever we do, we should extend public participation by allowing the electronic media, television and radio coverage?
Adv. Langa: Well I have two answers to that. I think television has possibly different effects on different people. I do not know how I would be feeling if there were TV cameras on here, but I daresay that I would have been able to ignore them. I think yes, it might be a good idea to do that. I would have no objection in principle to extending that, but possibly a number of issues have to be considered before there is a full extension. Could I just say also that I start from a premise that the members of the Judicial Services Commission have themselves been appointed through a process, and it is a process which has been sanctioned by our population through the Constitution and I expect that our community have full confidence or should have full confidence in the Judicial Services Commission. I think that is the ideal position. And then one moves another step further and looks at the reason for opening up the interviewing process. If the reason is for the public to be informed first hand, then I think extending that to television would make sense, it would be logical.
Prof. Mureinik: Do you think that is the reason?
Adv. Langa: I think it is one of the reasons, yes.
Judge Corbett: Supposing the television coverage was shall we say three to five minutes on eight o'clock news, picking little bits here, little bits there, how do you feel about that as opposed to shall we say a live broadcast of the proceedings from nine till five?
Adv. Langa: The process of course of selecting involves many people. I believe we were a short list of 25, and I believe that 10 will be selected. I think in a sense it might not be fair on those who are not selected to be exposed to that kind of play. I think it might be more useful for those who are eventually selected, to have access to the public, or to have the public have access to what they said during the interviewing process. I did say that one of the reasons was the involvement of the public for them to see firsthand what is happening, but with regard to more publicity and television certainly provides more publicity, possibly some sort of limitation might be useful. To respect the feelings maybe of those people who have given their evidence, and at the end of it all find that they are not selected. But I do not feel too strongly either way.
Prof. Mureinik: So advocate you are saying that if we could hope for actuality coverage, extensive coverage of the kind that the Chief Justice has envisaged, do you think that would be a healthy extension of the educative value of this process?
Adv. Langa: Yes.
Prof. Mureinik: Thank you.
Adv. Moerane: Mr Langa, to let the people out there as you describe them, maybe know you better in case you are appointed to the Constitutional Court I notice from your CV that you started your working life as a factory worker, a learner sorter.
Adv. Langa: Yes that is correct.
Adv. Moerane: Can you in a few words just tell us how you managed to overcome that rather humble background to be at the position where you are now, senior counsel, leading member of the Bar, the community?
Adv. Langa: Well I do not know if I can do it in a few words. I could say that in my life perhaps I should start earlier. In my life there had been a number of miracles, and I got interested in law and in human rights, simply because I did not want other people to be subjected to the sort of experiences I have been through. At age 14 I was told by my parents that that is the end of my schooling career, because they could not afford to pay my school fees, and I should say that at that stage there was nothing I could do except to pray for a miracle, and I did and somehow a miracle materialized, because I got a bursary to go to a secondary school where I did my junior certificate, but that miracle terminated there after my junior certificate because I actually had to get out and look for work. That is after spending a year unemployed, because of the permit system which operated then and because there was just
no work. I found that employment, which I do not call humble at all, as a learner sorter, it was a good job and I think I earned two pounds and eight pence a week. That was a lot of money then. Then I had always obviously wanted to study further. It was a big blow for me that I could not go to school for matriculation, and I studied privately. Studying privately was also very expensive and that accounts for the fact that I actually started my matric in 1960 and completed it that same year privately and then it took me another 10 years to start my legal studies simply because at that time I think the University of South Africa was very expensive. I can remember that we had to pay R15,00 per course and I simply could not afford that, but what I could say is that I persisted. Fortunately my study period was short. I finished my first degree and my second degree in a few years. At that time of course I was in the civil service and immediately I finished I resigned from the civil service and went to the Bar. That is the history, I do not know whether it encapsulates the struggle to get there, but it was something of the struggle.
Adv. Moerane: Yes, and do you think your experiences, your background, your life experiences in particular will be an asset to the court, if you were to be appointed?
Adv. Langa: Well I started off saying that at age 14 I was told that I would not be able to go to school. I think I was very distraught then, and I think it is important to be sensitive and I gained that sensitivity I think through personal experience. To be sensitive to deprivation of clients. I think there are thousands of people who actually dropped off at that stage, my contemporaries, because no one could afford to push them through school. I think it is important to bring that kind of experience into the Constitutional Court and there have been other experiences related to deprivation of rights, right through my career, but I would say that if the Constitutional Court does not have people of that kind of background, they would possibly rely on things they see and things they read. I do not know whether we do not need people who have that sensitivity through personal experience. I think we do need them.
Adv. Moerane: Thank you.
Judge Corbett: Yes.
Mr. Mojapelo: Mr Langa, your views in regard to introduction of legitimacy and popular acceptability of the court introduced through openness, processes such as these, would those views relate to appointments of members of the Supreme Court Bench as well or would you think that there are differences between the divisions of the Supreme Court and the Constitutional Court which justifies different approaches?
Adv. Langa: Well I think the Constitutional Court of course is unique, it is a new experience in the life of this country, and I think also it is important to bear in mind that it comes after many decades of violation of rights. We have come through a bad period, a period where even the courts did not have the legitimacy which courts should have, and the courts were looked upon by sections of the population as being foreign institutions in situations in which people have no confidence in. I think it was important for the Constitutional Court to start through a process, an open process like this; important to maintain its, to create and maintain its legitimacy. But I also think that in relation to the Supreme Court there should be openness also in the appointment procedures. We need to get away from procedures of the past where everything was hidden and the taxpayers, the population was simply confronted with people who have already been appointed not knowing where they come from and how they were selected. And I would go so far as to say possibly many of the Judges who are sitting in the Supreme Court today would welcome also that openness, because I am sure that they are confident of their positions, they are confident of being accepted because of their qualifications. I think it is a system which could very well benefit society by being extended to the Supreme Court as well.
