Chief Justice Langa on behalf of the Judiciary
Justice Chaskalson and Dr Lorraine Chaskalson and the whole Chaskalson family, esteemed members of the Judiciary present here, the Minister of Justice and other members of the ministry, representatives of the magistracy, distinguished members of the legal profession, distinguished guests friends, ladies and gentlemen:
We meet on an auspicious occasion today, which is in a sense the end of an era. Arthur Chaskalson was appointed by President Mandela as the first leader of the Constitutional Court when it was established in 1994. He held the position of President of this Court until November 2001 when he became Chief Justice of South Africa. He has been at the helm of this institution for the entire ten years of its existence. In a very real sense, he has been part of it in such a way that it is difficult to imagine it without him, and him without it.
Apart from Justice Chaskalson, Judges appointed to the Court at that time were Justices Ismail Mahomed, Ackermann, Didcott, Goldstone, Kriegler, Madala, Mokgoro, O’regan, Sachs and. Langa. We all felt we were part of an exciting and unfolding phase of the history of our country. Whilst it was, on its own, an intimidating prospect to serve on that Court, we all felt honoured to be its first members and we glowed with pride at being part of such a formidable team. Justice Mahomed, the first Deputy President of the Court, was later to succeed to the position of Chief Justice and moved to the Supreme Court of Appeal in Bloemfontein and much to my surprise, I was appointed to succeed him as the Deputy President of the Court. A few short years thereafter, Chief Justice Mahomed passed away and this country had lost one of its most brilliant jurists. Justice Didcott, after a distinguished career as a lawyer and a judge, also succumbed after a brave fight against illness. The current members of the Court are Justice Dikgang Moseneke, who is, as from yesterday, the Deputy Chief Justice of South Africa, Justices Zakeria Yacoob, Sandile Ngcobo, Thembile Skweyiya and Johann van der Westhuizen. Justices Richard Goldstone and Johann Kriegler, who are here with us today, and Justice Laurie Ackermann, have also since retired but they all maintain close links with Justice Chaskalson, who had since been appointed Chief Justice of South Africa, and this Court. All these Judges, colleagues and former colleagues, join in this tribute to an exceptionally gifted leader, colleague and friend.
Establishing a new Constitutional Court in the circumstances in which we found ourselves would have been, at best, a daunting prospect. But former President Mandela had made an inspired choice when he appointed Arthur Chaskalson to be its first head. We started from scratch, with nothing. But that was an opportunity for Arthur Chaskalson to demonstrate his innovative talents. By the time the Court was inaugurated on 14 February 1995, premises had been found and furnished, equipment shipped in, administrative staff employed and the rules of the Court had been composed. I do not for one moment suggest that he did all this alone. He was a shrewed captain of this vast ship and he had enthusiastic and gifted colleagues about him. Although he adopted a consultative style, always looking for maximum consensus where possible, no one can deny him the credit for meticulous planning and foresight in determining the direction the new Court was to follow. And once that direction had been planned, Arthur Chaskalson led by example.
In his leadership of the Court, his role has been a pivotal, particularly in shaping the jurisprudence of the Court and therefore also South Africa’s entire constitutional jurisprudence. Going through the judgments of the Court over the past 10 years, his footprints are clearly discernible and will form a permanent part of our jurisprudence. His persuasiveness, congeniality and friendly but firm approach has been an effective tool in shaping the jurisprudence of this Court.
It was accordingly not surprising that he wrote the main judgment in the death penalty case, the first case heard by the Constitutional Court. It was a monumental effort. I venture to say that every scholar in constitutional jurisprudence, in this country and in many other jurisdictions, is familiar with this Court’s judgment in S v Makwanyane. It was in that judgment that the Court laid the groundwork for its role in our new constitutional era. In particular, he highlighted the fact that the duty of the Court is to apply the Constitution first and foremost, and not to seek to curry favour with majorities and minorities. He said, (and I quote) (at para 88):
“The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us that all of us can be secure that our own rights will be protected.”
His work as Chief Justice transcended his chambers and the work of the Constitutional Court. Under his watch, the Heads of Courts constituted themselves into a structure to deal with collective issues affecting the judiciary. This is a structure that is proving its utility in dealing with issues such as racism and sexism within the judiciary. Structured meetings with the magistracy and the legal profession were established and a channel of communication was opened between the heads of the judiciary and the ministry and department of Justice. Also under his watch, we saw the establishment of a Commission of Southern African Chief Justices. This is a body which potentially, could exercise considerable influence in this region in dealing with problems affecting judiciaries in neighbouring jurisdictions. Justice Chaskalson is the first and current Chair of that Commission.
Before and after his appointment as Chief Justice in 2001, Justice Chaskalson played a leading and crucial role in the transformation of the judiciary. When he was appointed in 1994, there were only 3 black judges in the country and one woman. During his involvement with and under his leadership, the Judicial Service Commission has facilitated the appointment of many judges from diverse backgrounds and representivity in terms of race and gender has significantly improved. We still have a long way to go and the transformation of the judiciary remains a crucial task, but we have also come a long way in these last ten years.
But who is Arthur Chaskalson and why was he appointed to lead such a key institution - the Constitutional Court, and the South African judiciary as a whole - at such a critical point in our history?
He was born in Johannesburg in 1931, graduated from the University of the Witwatersrand with a B. Com and a cum laude in LLB. He is married to Dr Lorraine Chaskalson and they have two sons, who are both here today. He had a distinguished career at the Bar, to which he had been admitted in 1956. He took silk in 1971. He earned the respect of his peers at the Bar and was elected the Bar’s Chairperson in l976 and again in 1982. He held various other positions at the Bar.
He ran a successful and lucrative practice at the Bar and featured in major political trials - including the Delmas Trial and the Rivonia Treason Trial, which led to the conviction and imprisonment of former President Nelson Mandela and other leaders of the African National Congress – and in a number of major commercial disputes. He quite rightly acquired a reputation as a formidable jurist with great forensic skills and a proud record of defending human rights. He enjoyed enormous respect from his peers. In 1994, the General Council of the Bar of South Africa made him its joint honorary president.
His work has been recognized both in this country and beyond our borders.
He was elected an honorary member of the bar association of the City of New York in 1985, of the Boston Bar association in 1991 and of the Johannesburg Bar in 2002. He was a visiting professor at Columbia University in New York from 1987 to 1988 and again in 2004, was the vice-chairperson of the International Legal Aid Division of the International Bar Association from 1983 until 1993, is the President of the International Commission of Jurists and is a member of the Academy of Science of South Africa. He was selected to be one of South Africa’s four members of the permanent Court of Arbitration in 1999 and was appointed by the United Nations as an ad hoc judge of the Criminal Tribunal for the former Yugoslavia in 2001. He became a consultant to the Namibian Constituent Assembly in connection with the drafting of the Constitution of Namibia (in 1989 and 1990), was a consultant to the African National Congress on constitutional issues (1990 to 1994) and served as a member of the Technical Committee on constitutional issues - appointed by the Multiparty Negotiating Forum in May 1993 to give it advice and to draft the interim constitution.
His contribution to the birth of the New South Africa has deservedly earned him a place among the founding fathers and mothers of our constitutional order.
He participated in conferences and delivered lectures on constitutional issues, human rights and legal services in South Africa, Austria, Bosnia, Canada, Denmark, Eire, France, Germany, Hungary, India, Israel, Italy, Malawi, Mauritius, Namibia, the Netherlands, New Zealand, Poland, Sweden, Tanzania, Uganda, the United States, the United Kingdom, Zambia and Zimbabwe.
He was awarded the degrees of Doctor of Laws Honoris Causa by the University of Natal in 1986, the University of the Witwatersrand in 1990, Rhodes University in 1997, the University of Amsterdam in 2002, Port Elizabeth University in 2002 and the University of South Africa in 2004. He received the Premier Group Award for prestigious service by a member of the faculty of Law at the University of the Witwatersrand in 1983, the Claude Harris Leon Foundation award for community service and the Wits Alumni Honour Award for exceptional service to the community, both in 1984.
He was the joint recipient (with Dr S Mogoba) of the Human Rights award for the Foundation for Freedom and Human Rights in Switzerland in 1990. He has received awards for his work in the promotion of Human Rights from the General Council of the Bar of South Africa (the Sydney and Felicia Kentridge award in 2001), from the lawyers for Human Rights in South Africa and from the Jewish Board of Deputies. He is the joint recipient (with Justice Langa) of the 2004 Justice Prize of the Peter Gruber Foundation.
In December 2002 he received the award of Supreme Counsellor of the Baobab (gold), a national honour conferred by President Mbeki, for his service to the nation in constitutionalism, human rights and democracy.
All who have worked with him know him as a man of principle, who refuses to be seduced by fame and material rewards. In his estimation, these rank much lower than the cause he believes in. In November 1978 he gave up his chambers to help establish the Legal Resources Centre and was its director until September 1993. The path he had chosen did not have instant glamour and the material rewards were no where near comparable. It was a path, however, that would benefit the weak and the underprivileged and advance the struggle for a just and democratic society founded on human dignity, the achievement equality and promotion and respect for human rights. He was leading counsel in several cases in which the Legal Resources Centre (LRC) launched challenges against apartheid laws.
The point has been made elsewhere that leaving his lucrative practice and becoming part of the LRC was a step he did not need to take. He took it, nevertheless, in the interests of a greater cause.
Finally, it is a sobering thought that he takes his retirement at a time when he need not do so. He is in good health, he is energetic, he still enjoys his and has a great capacity for work. He could have stayed on until the November 2006. He however approached the President and asked to be released from active service because he felt that it was in the national interest for him to do so. Stepping down at this time involves material loss to him but he elected to face that eventuality. That is who Arthur Chaskalson is - he is that kind of man.
On a personal note: I have worked very closely with him in the last few years and am a witness to his great compassion for others, including for myself and my family, as well as his deep humanity. His retirement is indeed the passing of an era and, Arthur, I, on behalf of your colleagues, the staff and friends at this and other courts, salute you for your contribution and wish you many happy years in whatever you choose to do.
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