Judge Mahomed: Thank you for responding to our invitation to come to this interview. We know you have had to specially fly from Durban and you have to get back. We hope not to detain you for too long. Mr Yacoob you attended the Arthur Blaxall School for the Blind during the period 1956-1966.
Adv Yacoob: That's right.
Judge Mahomed: And you studied for a BA degree at the University of Durban-Westville majoring in English and Private Law.
Adv Yacoob: That's right.
Judge Mahomed: Then you studied towards and completed the Bachelor of Laws degrees at the University of Durban-Westville from 1970 -1972.
Adv Yacoob: That's right.
Judge Mahomed: You are now forty nine years old. You were admitted as an advocate in Durban in 1973 and you have been an advocate for some twenty four years.
Adv Yacoob: That's right.
Judge Mahomed: You practised as a junior counsel and took silk some six years ago.
Adv Yacoob: That's right.
Judge Mahomed: You were active in community affairs. You were the chairperson of the Durban Committee of Ten during 1980 and that was a committee concerned with the plight of pupils at school. Can you tell us a little more about it?
Adv Yacoob: Yes. It was in1980 when a number of political leaders were detained at the time, community leaders were detained and we found ourselves in a situation where the children were protesting and participating in protests and so on and something had to be done. There was some law at the time which made all gatherings under ten illegal and I was asked to go to a Beach and I became the chairperson of the Committee of Ten which existed for a period of four or five months during 1980 when meetings were held when negotiations were facilitated between the powers that be at various levels and representatives of the community and so on in an effort to try to resolve the difficulties which existed at the time.
Judge Mahomed: You were also an executive member of the Durban Housing Action Committee in the '80's?
Adv Yacoob: That's right.
Judge Mahomed: You have been a member of the council of the University of Durban-Westville in 1989 -1993 and also 1995 to the present date.
Adv Yacoob: That's right.
Judge Mahomed: Now Mr Yacoob you have had quite a wide exposure of problems of constitutional law. You attended a number of workshops to consider South Africa's draft constitution, firstly in London in 1995 and you also attended a workshop and conference on the South African Constitution in Michigan in 1997. Is that correct?
Adv Yacoob: That's right.
Judge Mahomed: And then you were also a commissioner of the Independent Electoral Commission in 1993 -1994. That was the new Independent Electoral Commission
Adv Yacoob: That's right.
Judge Mahomed: Then you served as a member of the panel of independent experts of the Constitutional Assembly appointed in terms of the Interim Constitution.
Adv Yacoob: That's right.
Judge Mahomed: You advised political parties and you facilitated negotiations. Then you also had some exposure in advice you gave to local garment bodies in regard to the formation and the constitution of the South African Local Garment's Association.
Adv Yacoob: That's right.
Judge Mahomed: In addition to that you have been advising the National Land Committee on what response it should make to legislation aimed at ensuring land tenure security for tenants.
Adv Yacoob: That's right.
Judge Mahomed: And you also have been a member of a committee which was constituted by the Centre for Applied Legal Studies for the purpose of preparing legislation to give effect to rights concerned with administrative justice and the right of information in the constitution. And then also you have been a member of a technical committee convened by the Department of Finance to advise on legislation necessary to give effect to the chapter dealing with finance in the new South African Constitution.
Adv Yacoob: That's correct.
Judge Mahomed: So this is a fairly wide exposure to problems pertaining to constitutional interpretation and application.
But, notwithstanding your very wide experience in constitutional matters, I think it would be fair to say that you have had a very active practice at the bar.
Adv Yacoob: I have, yes.
Judge Mahomed: Firstly in some important criminal trials. You were one of the active counsel in the Delmas trial?
Adv Yacoob: That's right.
Judge Mahomed: I had the privilege of having you with me in several matters in Natal including the Treason Trial before Mr Justice Milne.
Adv Yacoob: That's right.
Judge Mahomed: And you have also had a considerable civil practice.
Adv Yacoob: That is so.
Judge Mahomed: So that you are a barrister in the true sense of the word with a wide, wide field of interest.
Adv Yacoob: Perhaps too wide, that's all I can say.
Judge Mahomed: Mr Yacoob coming to the Constitutional Court you would of course have to leave in an important sense what has been really your domicile which has been Durban and although you may commute from time to time it would involve a major change in your work habits.
Adv Yacoob: That is so.
Judge Mahomed: Do you find that a daunting prospect?
Adv Yacoob: It was one of the matters which I had to consider very seriously but I think that the challenges of the work which could be done there together with the fulfilment would perhaps more than compensate for that.
Judge Mahomed: Mr Yacoob among the many attributes you have it is also a phenomenal memory not so which hardly needs anything ever being repeated to you. I mean you remember it.
Adv Yacoob: It depends. It is a strange kind of intensive short term memory so that when one prepared intensively for something one remembers but beyond that the memory is only good for matters of principle rather than detail.
Judge Mahomed: And you have read extensively on constitutional law and you are familiar not only with the decisions of the Constitutional Court but constitutional trends in other countries by virtue of your various positions in the evolution of the Constitution.
Adv Yacoob: Reasonably.
Judge Mahomed: Yes. Is there any particular reason why you would prefer, if you had a choice, the work of the Constitutional Court over being a member of one of the common law courts?
Adv Yacoob: Two reasons. The first one is that it is a matter of some debate, as I understand it, amongst jurists in this country about whether a person who can't see can be effectively a member of an ordinary court, the thesis being that you need to be able to see witnesses' faces in order to make a proper credibility finding.
Judge Mahomed: That wouldn't apply on the appeal level would it?
Adv Yacoob: No it wouldn't. It wouldn't apply on the appeal level but again the Constitutional Court, I would prefer, simply because the constitutional aspect is very interesting and more exciting. I would have thought that one or two years experience as an ordinary judge might be an important prerequisite to going to the Appellate Division more so than I would have thought in the Constitutional Court.
Judge Mahomed: Mr Yacoob although you had very extensive experience in the evolution of the Constitution have you appeared in many constitutional cases?
Adv Yacoob: No, hardly any. I appeared in two of them and of course whether one appears in constitutional cases depends on whether one is briefed. I have had the unfortunate or maybe the fortunate experience where most cases where I have been asked my advice on constitutional matters, I have advised people not to proceed.
Judge Mahomed: There is another factor too is there not. You have been engaged in some long trials and you haven't always been available to take such matters not so?
Adv Yacoob: Well that's right. I have been in the Constitutional Assembly virtually all the time from the beginning of 1995 to October 1996 and I thought when we first got there that I would have the best of both worlds and that I would run a good practice and be at the Constitutional Assembly but of course as Murphy would have it whenever one is required in the Constitutional Assembly somebody offers you lots of work and when you are not the phone doesn't ring in Durban.
Judge Mahomed: Mr Yacoob have you written on aspects of constitutional law?
Adv Yacoob: No I haven't.
Judge Mahomed: But have you not attended and contributed to and led the various workshops and discussions?
Adv Yacoob: Yes, I have. I have delivered papers at workshops. I have written a paper for a journal about a year ago, delivered papers at numerous conferences but not beyond that. I haven't written really for the South Africa Law Journal and that sort of....
Judge Mahomed: You haven't written formal articles…
Adv Yacoob: No.
Judge Mahomed: ... but you have been very active in discussion surrounding the Constitution.
Adv Yacoob: That's right.
Judge Mahomed: And I suppose it would not be an exaggeration to say that you have one of the most intimate associations with the evolution of the Constitution in this country?
Adv Yacoob: I have been very privileged in that regard.
Judge Mahomed: Thank you Mr Yacoob. If you will just share with us some further perspectives and answer to any questions that any of my esteemed colleagues have.
Judge Chaskalson: Mr Yacoob, you are not a stranger to travelling away from home for long distances and long periods of time. I think you spent almost three years away from Durban on the Delmas trial.
Adv Yacoob: That's right.
Judge Chaskalson: And you spent almost a year in Kempton Park when you were a member of the technical committee on the Bill of Rights.
Adv Yacoob: That's right. And then two years in Cape Town with the Constitutional Assembly.
Judge Chaskalson: So a few months in Johannesburg should be no hardship.
Adv Yacoob: It may be the last straw.
Judge Chaskalson: You were at one stage of your career quite active in politics?
Adv Yacoob: Yes, I was.
Judge Chaskalson: 1994 you stopped. Was there any reason for that?
Adv Yacoob: I stopped really in 1990/1991.
Judge Chaskalson: 1991. Sorry.
Adv Yacoob: My involvement in politics, I am not really a politician. My involvement in politics was really involvement in the effort to achieve democracy in the country which was very close to me and once democracy was achieved the process of deepening democracy, the kinds of processes which I would have wanted to be involved in were not necessarily consistent with the kind of politics which is concerned principally with which political party is in power. That sort of politics has never really interested me and I suppose really although I was involved in political activity up until 1990/1991, it was political activity with a difference. It was involvement in activity to achieve an ideal and now it is no longer necessary for me to be involved in politics at that level in terms of the way I see my own life.
Judge Chaskalson: Thank you.
Adv Gordon: Mr Yacoob we have got to reveal association. You and I have known each other and have been friends for about twenty odd years.
Adv Yacoob: That's correct.
Adv Gordon: I don't really want to ask you a question but for the benefit of the members of the Commission I would like to put something on record because of one particular experience I have with you. One know that you have been involved in some very long trials which require some feats of memory but in a commercial case, if you recall, where you and I were representing two different defendants relating to the supply of stationery to the Natal Technicon there were hundred of invoices, many statements and a lot of correspondence and I would just like to record you were before Judge Wilson if you recall and against Harper. You will never forget that. Your memory of invoices by number and of the bundle of documents by page was the most astonishing feat and if you recall that I just wanted to put that on record in regard to the ability of Mr Yacoob not only perhaps remembering what witnesses said but the actual detail of something as boring as an invoice. Thank you.
Adv Yacoob: I remember very little about it now.
Adv Trengove: Mr Yacoob, I would just like to ask you to elaborate on two things. The first is your role as a member of the panel of experts advising the Constitutional Assembly and the drafting of the new Constitution. Could you just tell us a little bit more of what the panel did and how it went about its business?
Adv Yacoob: It did a number of things. The panel was available as a resource. We were seven. A lot of the time was spent in the panel trying itself to be unanimous about approaches to constitution and constitution making. Part of the difficulty of course was that the panel was rather sensitive about ensuring that it wasn't over involved in the process. It realised that the drafting of the Constitution and deciding what actually goes into it was not its function but rather the function of the Constitutional Assembly. The role of the panel was simply to advise. We did a number of things. We did a search and prepared memoranda at the request of the Constitutional Assembly. Advised the chairperson of the Constitutional Assembly in regard to various matters. Whenever we, as a panel, began to be agreed that one or other of the constitutional principles may or may not be complied with, if one or other clause was written into the Constitution in a particular way, that advice would be given. We did a fair amount of research in the process of advising the Constitutional Assembly. Then different of us were involved in different aspects of the work. I, for example, was more involved in the allocation of power, that area of allocation of power between the provinces and the nation. The chapter on co-operative government, the chapter on local government, the chapter on finance and to an extent also the chapter on fundamental rights. We attended meetings of the Constitutional Assembly, were privy to the negotiations and gave such advice as was necessary from time to time.
Adv Trengove: The other aspect that I don't think is fully dealt with in your C. V. that you have given us is the nature of your civil law and particularly commercial law practice over the years and more particularly in recent times. Can you tell us a bit more about it?
Adv Yacoob: Yes, well everybody has done divorces and running down cases and goods sold and delivered cases and cases involving contract, cases involving purchase and sale of property. Applications for interdict, liquidations, insolvencies. That would be about ... I think that I virtually did everything. The cases grew bigger as time went on. A large number of commercial cases as well.
Adv Trengove: Is there any area of private law on which you tended to drift towards rather than others?
Adv Yacoob: Not particularly, no.
Adv Trengove: And has your private and public law practice obviously included not merely motion work but a lot of trial work as well.
Adv Yacoob: A lot of trial work, yes.
Adv Trengove: Thank you.
Adv Bizos: Mr Yacoob, I want to ask you about your work for the Constitutional Assembly, some of which I came to witness during the period of debate amongst politicians as to what complied and what did not comply with the constitutional principles annexed with the interim Constitution. Was it necessary for you to inform yourself, together with the other members of the panel, of what were universally accepted or at any rate generally accepted democratic principles in the world?
Adv Yacoob: Well that was relevant only in relation to universally accepted fundamental rights but by and large as far as the other constitutional principles were concerned only one or two of them had something to do with the position in other parts of the world. The balance of power between the provinces and the Nation for example was an area which entailed a great deal of study of the situation in other countries, but apart from that many of the other areas didn't involve too much research into international law.
Adv Bizos: In those committees you appeared to be the senior of the team. People seemed to defer to you and I see quite a couple of the members of the committee here who don't have a voice to contradict me but I think that by their silence will agree.
Adv Yacoob: I just have the habit of talking too much Mr Bizos.
Adv Bizos: And you were able to answer questions in relation to the differences between draft eleven and draft fourteen in sub clause (a) (iii).
Adv Yacoob: Yes.
Adv Bizos: How did you manage all that without documents in front of you.
Adv Yacoob: I think a lawyer's brain is like a magicians hat. You get out of it what you put in. Basically it was necessary to work quite hard at it and that was about it.
Adv Bizos: Yes. Do you know who said that "if Zak Yacoob says I don't remember you must believe him?"
Adv Yacoob: I think the Chief Justice said that.
Adv Bizos: You and I, as Mr Gordon indicated, have to disclose our association. It wasn't only in the constitution making process that we came across but we spent over three years together in the Delmas trial. You didn't do anything that one would have expected of or rather didn't fail to do anything that anyone would have expected from a senior/junior that you then were in relation to a difficult trial on fact, law, played a very important part in the formulation of the argument. Is that so?
Adv Yacoob: I would hope so, yes.
Adv Bizos: Yes. I want to also deal with the question that you were asked by the Chief Justice a to why not the High Court and why so the Constitutional Court. You need a reader.
Adv Yacoob: Yes, I do.
Adv Bizos: And do you know that apparently the Constitutional Court judges enjoy the privilege of having two registrars or researchers to do work for them. Will that be of particular assistance to you.
Adv Yacoob: It would be of particular assistance but I want to say that it won't necessarily mean that a reader will not be necessary. If I am appointed one of the questions which one has to look at fairly carefully is ensure that I am able to do work in the Constitutional Court at an equal level with my other colleagues. That might mean that it may be a little more expensive for the State to ensure that I am placed in a position to perform equally with others.
Adv Bizos: Is this because you intend doing a lot of the reading after ordinary working hours and that sort of thing?
Adv Yacoob: I think so.
Adv Bizos: Thank you. Just one but literally important question Mr Yacoob. You did not tell this Commission that despite the fact that me and you share the same date of birth, month and year, we never exchanged any gifts before.
Senator Mushwana: Just one but literally important question Mr Yacoob. You did not tell this Commission that despite the fact that me and you share the same date of birth, month and year, we never exchanged any gifts before.
Judge Chaskalson: Mr Yacoob could I ask you one last question. Did the decision of the Constitutional Court not to certify the first draft of the Constitutional text come as a surprise to you?
Adv Yacoob: No not at all, except one aspect. It did come as a surprise to me that the section of local government was not certified. Apart from that nothing else at the time. Of course I was also surprised about the uncharacteristic crispness of the judgment and unanimity.
Mr Ngcuka: Can I follow up? Sorry Mr Yacoob. Is it correct that most occasions we accepted the advice of the panel of experts isn't it?
Adv Yacoob: Well, sometimes you did and sometimes you didn't. It was wonderful because when you agreed with one political party the other political party thought that you are now a traitor to the Constitutional Assembly and vice versa so Mr Ngcuka and I had some very interesting and maybe time together not always friendly.
Mr Ngcuka: But I just wanted to say the only time we disagreed and you misled us was on the chapter on Local Government.
Mr Radue: Thank you Chief Justice. Adv Yacoob you also had the privilege of being a commissioner with the Independent Electoral Commission for the first democratic election.
Adv Yacoob: That's right.
Mr Radue: What exactly was your role and how did you go about it? How did you find the experience?
Adv Yacoob: The experience was fascinating. As commissioners we worked as a team and did just about everything. You will recall that we were appointed, eleven of us, sometime toward the middle of December of 1993 for elections to be held in April. We did a lot of work from setting up the structures of the Commission, appointing people, ensuring a policy for the Commission, ensuring that most of the people in the country participated in the election. Ensuring that the elections were credible. Making sure that political parties felt at home with the Commission and they took part in the process of the Commission to the extent that it was possible for them to do. Really it was a fascinating experience and it was one which at the time certainly was not intellectually rewarding it was just a lot of hard work setting up structures, making sure that procedures were right and making sure that things were done. Always battling against tremendous odds as far as time was concerned but in retrospect it was a challenging and exciting experience. Certainly it didn't seem so at the time.
Judge Mahomed: Mr Yacoob I want, on behalf of the Commission to thank you for speaking to us so frankly and fully. Thank you very much.
Adv Yacoob: Thank you for giving me the opportunity.
