Judge Chaskalson: Judge Skweyiya welcome. You have been interviewed by the Commission on previous occasions so we do know a lot about your background and your concerns and there may not be any need to travel over all that background again but I do think that we need to just remind ourselves a little bit about who you are and what you have done. Your own legal career, you started many years ago.
Judge Skweyiya: Too many years.
Judge Chaskalson: You spent a bit of time in an attorney practice at one stage.
Judge Skweyiya: I did spend some time in an attorney's office which perhaps is useful thing for any practitioner who wants to go to the Bar and the Bench ultimately to start there. I did yes.
Judge Chaskalson: Then you took up practice at the Durban Bar.
Judge Skweyiya: That is correct, yes.
Judge Chaskalson: And your practice at one stage involved a good deal of commercial work but then you found yourself drawn into what one might call the political trials of the time.
Judge Skweyiya: Indeed, yes.
Judge Chaskalson: That would have involved defending people on political charges, involved with civil litigation relating to community affairs, inquests and matters such as that.
Judge Skweyiya: Commissions of enquiry.
Judge Chaskalson: So a good deal of your time would it have been between the 70's and the 80's that a lot of that sort of work was done?
Judge Skweyiya: No, at the beginning I was doing commercial and civil work up to the 80's. Thereafter it became almost exclusively political cases.
Judge Chaskalson: That would have been in the 80's would it?
Judge Skweyiya: Yes.
Judge Chaskalson: Right and then ....
Judge Skweyiya: And later I took silk and when I took silk it became commercial and civil.
Judge Chaskalson: Is it correct that you were the first African silk in the country?
Judge Skweyiya: Well that's what they say.
Judge Chaskalson: Well do you know of anyone else?
Judge Skweyiya: No I am not aware of anyone else. That is what they say, yes which is a pity in a way. It is not something which makes me happy, you know, to be regarded the first silk in the 70's when the first silk in this country was in the 40's or even earlier than that. If it was Snitcher I believe.
Judge Chaskalson: He was a Queens Council and he was the last of the QC's. I don't think he was the first. I think we had silks going back, you know, from the time of the British colonisation I think there were silks in this country.
Judge Skweyiya: I am just saying that it says something about us as a country if you only have an African silk after so many years.
Judge Chaskalson: Yes. That is in fact while you were in practise I would have thought .... When you went to the Bar were their other African practitioners at the Bar when you joined?
Judge Skweyiya: When I joined the Bar, yes there was. The first practitioner that I know is Duma Nokwe.
Judge Chaskalson: He was in Johannesburg.
Judge Skweyiya: In Johannesburg but in Durban there was Vuka Tshabalala. He was the first to take the plunge because not all of us were prepared to go there from the money point of view.
Judge Chaskalson: Yes. In fact there was just a tiny population of African practitioners in the country in those days.
Judge Skweyiya: That is correct, yes.
Judge Chaskalson: I think that is a legacy which haunts us today because of the problems which it has left in its wake.
Judge Skweyiya: Indeed. We should be having no problems in getting people to come to the Bench.
Judge Chaskalson: Yes. We can talk about that a little bit later on but you then I think in 1994 when the first Constitutional Court was being established you were one of the ten names that were short listed at that time.
Judge Skweyiya: Yes I was.
Judge Chaskalson: And then after that you weren't one of the few persons chosen for the first Constitutional Court and you got drawn into business and you spent several years predominantly in business.
Judge Skweyiya: No, thereafter I practised and then thereafter I was persuaded to take up an appointment as the Inspector General for Intelligence. That is history now. I left the Bar because I was supposed to take up an appointment on a particular date and after five months of leaving practise I had still not taken up that appointment. Rightly or wrongly but thereafter I decided that I should do other things. That is when I went into the corporate world.
Judge Chaskalson: You spent some years largely in the corporate world?
Judge Skweyiya: Indeed, yes.
Judge Chaskalson: And then you came back to practise and you made yourself available for the Bench in Natal?
Judge Skweyiya: That is correct, yes.
Judge Chaskalson: And you have spent a year acting as a judge on the Constitutional Court?
Judge Skweyiya: Yes.
Judge Chaskalson: Now can you tell us about your time at the Constitutional Court, how you found the work there and how, if you are appointed, you would see your future there?
Judge Skweyiya: What has influenced me to make myself available for these proposed positions now is because of the time I have spent in the Constitutional Court and comparing that to what I am presently doing is a vast difference from the point of view of resources, from the point of view of contact with colleagues and discussing and just from the point of view of intellectual satisfaction. Not many people realise that being a High Court judge in a busy division you are working as though you are on a conveyor belt frankly. I mean the divisions are busy. I am sure Judge Webber and anyone coming from a busy division will know that. You hardly have time to reflect properly on things and not having real time to develop the law in that sense because I think, frankly, the Natal Bench has fewer judges than what it should have. It should have more.
Judge Chaskalson: As far as the role of the court is concerned, how do you see the role of the Constitutional Court and what its part in the development of law in South Africa is?
Judge Skweyiya: Well I mean it is pivotal to the development of law in this country. I mean we are now a constitutional state and everything revolves around that and the Constitutional Court plus the other arms of government, the executive and the legislature are all important cogs in seeing that the values enshrined in that Constitution now are complied with.
Judge Chaskalson: Yes. I can't recollect but were you with us at the time of the decision in the Treatment Action Campaign case?
Judge Skweyiya: Yes I was. It was a difficult decision.
Judge Chaskalson: Yes. There has been some discussion about the role of judges in relation to socio-economic rights. Perhaps we should include you in that discussion since everybody else has been asked about it. What do you feel about that form of adjudication and what happened in that case and your participation as a judge in the court in the decision?
Judge Skweyiya: Well you can have the nicest of Constitutions on paper. If it doesn't relate to reality then there are difficulties. The Constitution requires of all of us to do certain things, to respect the dignity of South Africans and one can't speak of a persons dignity when that person is living in squalor and that person can't have access to facilities, medical facilities and it is for that reason I presume that we have in our Constitution, you know, socio-economic rights and I think there are difficulties also with the type of right which we had to consider in that case in a sense that we need resources for many things in the country and it is a question of where one employs resources and of course as a court we are obliged, you know, to compel the executive to comply with its obligations in terms of the Constitution and on the facts of that case there was no other conclusion to which the court could have come and I think we are all alive to the difficulties surrounding the issues in that case insofar the facts are concerned and all of us did a lot of work, you know, in that case. The division of the work, you now, with your leadership I mean we are all allotted certain aspects insofar as the facts are concerned. We had to do everything, frankly and the basis of course insofar as that type of right is concerned has long been laid down in the Grootboom case and the Soobramoney case and so on, so on the facts of that case, I have no reason to believe that we came to the wrong conclusion.
Judge Chaskalson: We won't ask Mr Moerane to agree with you.
Judge Skweyiya: Well you know an advocate is as good as his case is and at times you have to act on instructions.
Judge Chaskalson: I want to ask you a different question. There are a number of writers on jurisprudence who say that socio-economic rights ought not to be included in the Constitution. They take the view that that is not the job of a court and they argue vigorously that rights should be confined to negative rights, the so called civil and political rights. What is your view? As a judge you have got to uphold and enforce the Constitution but do you think that our Constitution should have included socio-economic rights?
Judge Skweyiya: Indeed. I mean given you know the deprivation in this country and where we come from I have no doubt in my mind that, look, it was the right thing to do. It is a question of whether we have the resources to be able to comply fully with those rights. It goes back to the first point which I made really you know that you can have the best Constitution but if you don't have ... you have someone with a hungry stomach, someone who has no home, and someone who can't go to hospital and be attended to, it is a meaningless document.
Judge Chaskalson: Judge Skweyiya can I just move away from that and ask you if you are appointed to the court what you think you will bring to the court and what the court will gain from your presence on it?
Judge Skweyiya: Well the experience, which when you started to ask me questions on, is relevant. I think I have seen both sides of the world as it were. I am more privileged than many people in the country in the sense that look I can have food at the end of the day, I can send my kids to school and so on but at the same time I am where I am now coming from the same disadvantaged background from which the majority of the people in this country have come from and I think any judge is influenced in his thinking by his background but our training of course helps us to decide dispassionately as it were when we have to decide but I believe I am in a better position than many people from the point of view of deciding on the practicalities and in particular you know the things related to socio-economic rights. I know precisely what it means because I come from there and at the same time I know the other world and also one brings with one the experience which one has had over many years as a practitioner because there are times when you have to take practical and realistic decisions, you know, at times and you can only do that with experience. Also I acted in the court for almost a year and I think the court comprises various persons with different qualities and I think I could put in my penny also in that.
Judge Chaskalson: You consider that diversity an important characteristic of the court?
Judge Skweyiya: Indeed it is and it must reflect also you know the demographics of the country. At the beginning frankly if you are speaking to someone in Africa and which is what has happened in the past, someone in Africa would say no this court of yours is not reflective of you know the South African society but we have moved on and fortunately the type of person we had, we may not have had in terms of race representation, which represents you know the demographics of this country but we had people who I would say, they may be white in colour but who acted as human beings and would understand things in the same way that any other black person would understand because of their experiences also.
Judge Chaskalson: With these two resignations there will only be two white men left on the court.
Judge Skweyiya: Well perhaps that will represent, you know, our society.
Judge Chaskalson: I am going to ask other members of the Commission now to ask you questions but there is just one thing that I want to do before I do that. You may recollect that about a year ago I think there was a complaint by a Mr Bangaar. You remember that incident?
Judge Skweyiya: I do.
Judge Chaskalson: And the matter wasn't dealt with because the matter was pending . ... there were pending proceedings in the High Court and then it resuscitated itself again some months ago and you wrote a letter repudiating the contentions which had been made.
Judge Skweyiya: Yes, I did.
Judge Chaskalson: I think I should inform you that the committee of this body that deals with those matters has considered that and has decided to dismiss Mr Bangaar' s complaint.
Judge Skweyiya: Let me say this, Chief Justice, that I would have been surprised if it was otherwise.
Judge Chaskalson: Yes and I thought you should know that that had happened. If anybody wishes to ask you any questions about it they are free to do so but your answer is on record and the decision now is that you should know.
Judge Skweyiya: That is a nice thing about the time in which we live today. It is a transparent society and whilst there may have been trials in the past which were held in camera very much against the will of many people who defended political trials, these days a trial in camera is an exception and fortunately also everything which occurs in court, the whole procedure is recorded and the record really speaks for itself.
Judge Chaskalson: Yes. Well Judge Skweyiya. I am now going to invite members who may wish to put questions to you to do so.
Mr Surty: We live in interesting times and we have an interesting Constitution and I do certainly appreciate your attachment to the socio-economic rights which we believe we support you in that view and the Chief Justice. They are very important and central to the evolution or the development of and the establishment of the affirmation of our dignity. Now you have more difficult issues that you would have to confront with as a judge. For example the right to freedom of expression. It binds everybody. The legislature, the judiciary and so forth. What would your view be with regard to criticism being levelled against the judges publicly?
Judge Skweyiya: Well judges are nor immune from criticism and they are also subject to the Constitution like anyone else and so I have no difficulty with that frankly and I think it is a good thing for a democracy. It puts us on our toes but what is painful is when false accusations are made and the media picks up on that accusation as being a fact and it just carries on and on and on and there is no way you can fire the press. That is the unfortunate part of it.
Mr Surty: So do you think that the media has too much of freedom?
Judge Skweyiya: No, I don't think so. I don't think so. I think it is the correct thing to do and the media must be free to express whatever but they must report correctly and accurately.
Mr Surty: I think we would all want the media to be responsible in the manner in which reports are done and they should be as much committed to reflecting the true position rather than rumour and anything else.
Judge Skweyiya: I think it is important that, you know, that when you report, you don't only report the bad all the time. There are many good things happening in this country frankly which ought to be reported also. I don't think we are getting enough of that.
Mr Surty: Do you detect a sense of imbalance in the manner in which the media tends to report things in that they overlook the good that has been achieved in our democracy and seem to be focusing more on the more sensational?
Judge Skweyiya: That's a question of emphasis. I am not saying they are over looking it. Perhaps the emphasis appears to be wrong at times and the emphasis leads to an imbalance or a perceived imbalance as a result. You see the press and the media also is a part of society. They are just as responsible for building up a country like anybody else.
Mr Surty: I share your view judge that the media should be responsible in the manner in which they report so I have no difference of opinion in so far as that is concerned. In relation to the freedom of expression we have that and the concern that I raise, I mean the context under which I want to raise it, we have that on the one hand and then you have the dignity and the decorum of the judiciary itself. I mean the independence of our judiciary. Do you believe that they do deserve some kind of protection?
Judge Skweyiya: No. If anyone is in the wrong he should get no protection from anyone. If something is wrong it is wrong, its wrong and its wrong. As long as the position is reflected and honestly and correctly.
Mr Surty: Judge with regard to the socio-economic rights would you agree that while it is necessary that we have the rights and in fact indeed we do have it, we fought for it, that it is a very complex area which is evolving and which we would grapple with for some time given the fact that there are competing interests. You talk about your right to housing, right to health, right to education. There are all competing interests which enhance the dignity of a person.
Judge Skweyiya: I agree.
Mr Surty: And it becomes a very complex and difficult arena within which to work.
Judge Skweyiya: It is for that reason that the court is in an invidious position when, you know, a difficult position when it has to consider, you know, that area because you are not only concerned with the legalities you are concerned also with reality and it is not an easy area.
Mr Surty: Thank you very much judge
Mr von Klemperer: Judge Skweyiya you and I have known each other for a long time.
Judge Skweyiya: Yes. I have had occasion to make money from your briefing.
Mr von Klemperer: You indicated that one of your reasons for wanting this position is the difference in working conditions at the Constitutional Court and the Natal Provincial Division and sorry, although it is not directly in keeping with context of your application to hear, I think it would help us because we are going to have to consider the Natal Provincial Division in due course as well. If you could tell us something about the problems and the working conditions in the Natal Provincial Division?
Judge Skweyiya: Well I have no chambers. I have been a judge now for over three years. I have no chambers for instance of my own. I don't and I have to squat literally. It may seem a joke but I have to squat and that creates problems because, you know, more often than not you have to carry files in the boot of your car. You know in a busy division where in that process some things are left behind in the sense of there may be a judgment which some more important matter comes up, you have taken the file home or your secretary has put it somewhere and you move from chamber from chamber because you have no chambers and things get lost along the way and that is just one of the, the physical conditions of working must be such that they are conducive to your producing your best. You can't be thinking about other things and be distracted by other things when you have to do your work and that is the only way you can do your work best and you come from that division, you know the backlog, you know. You will have a long list of matters set down and only a few of those are gone, not because of anything else but because I believe the number of judges is not sufficient. I don't know what the Judge President thinks, you know, but I am sure he can agree on that, you know. Last in August I was on civil duty in Pietermaritzburg on full bench appeals and the other colleagues doing civil work in Durban were complaining like anything. I think it is bad for us doing full bench appeals, you know the pressure and there are certain things which have to be there, you know, for one to produce one's best.
Mr von Klemperer: Thank you.
Mrs Camerer: I just wanted to ask Judge Skweyiya you were appointed permanently in February 2001.
Judge Skweyiya: That's it yes.
Mrs Camerer: And when you list your cases as the ones you regard as being most important you list one when you were an acting judge and then three Constitutional Court cases so there is an eighteen month's period when you were in the Natal Provincial division…
Judge Skweyiya: Well I have done many, many judgments.
Mrs Camerer: Yes, but you don't mention them…
Judge Skweyiya: Well in some judgments you write are reportable and it takes a year before it appears in the law reports or it is never reported. I could produce a big file of judgments I have written, some of which I have written reportable, some are the run of the mill sort of judgments which there is nothing new or special about them but I just picked up on those which I thought, you know, people could have access to immediately.
Judge Chaskalson: Judge Skweyiya thank you very much.
