Guest Column

Edwin Cameron: The fight for our constitutional values is now urgent more than ever

2019-08-22 10:39
Justice Edwin Cameron.

Justice Edwin Cameron.

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Chief Justice, colleagues, guests – I thank you from my heart for your generosity in being here this morning and for your most generous words.

My overwhelming feeling here this morning is one of gratitude – gratitude to my family and loved ones, to my friends, my colleagues, my law clerks and everyone here at Court.

I know many have adjusted their schedules to be here. In particular I thank the Speaker of the National Assembly (former Chair of the National Council of Provinces), Ms Thandi Modise, and Minister of Justice and Correctional Services, Mr Ronald Lamola, for going out of their way to be here and for participating.

In addition, my heart-friend Sappho Dias Dutton, traveled overnight from London yesterday to ensure that she would be here to read the tribute prepared by her husband, Timothy Dutton QC, who is too severely ill to travel.

Your presence, Sappho, and Tim’s tribute, after more than 40 years of friendship, strike an irremovably deep place within my heart.

But, most important, I feel gratitude for the encompassing and unconditional love that my family has given me – my sister Jeanie Richter, my niece Marlise Richter and her spouse Marc Lewis and their baby Linda. As you heard in Sappho’s tribute, Jeanie helped make me the person that I am. Her family and their granite-solid love have been pillars of security and stability in my life.

I also thank and honour Sophie Kekana and her family for their warm love and support since 1983.

I am particularly glad that the Chief Justice has countenanced the presence of two babies in court – Leo Nkosi Cowen and Linda Richter-Lewis.

This, to my knowledge, is a first. But it is also right. I sometimes tell audiences of young people that our generation has had its chance – and that what we are fighting for now is not our own futures, but theirs. It pleases me to know that we are now fighting for the future of Linda and Leo and their children.

I also owe a special thank you to my partner, Nhlanhla Mnisi. For Nhlanhla I have a very private question and then a very public confession.

The private question is: where were you for the first 62 years? You have changed and enriched my life for the better so unimaginably that it is hard to conceive of how it was before you.

The public confession is this. I know you think that our relationship since April 2015 was spontaneous and autonomous. It was not. It was at the instance and under the instruction of perhaps the second most powerful person in this Court after the Chief Justice, namely my beloved sister Justice Sisi Khampepe.

Justice Khampepe regularly admonished me about the absence from my life of a loving partner of isiNguni-speaking. When I say “Nguni-speaking”, I am distorting Justice Khampepe’s proud heritage as a member of the Zulu royal family – she wanted a Zulu-speaking partner for me. I think she has fully reconciled herself to the fact that you are Swati-speaking and not 100% Zulu, since the amaSwati are neighbours, cousins and in many instances brothers and sisters of the Zulu nation.

Then, to my colleagues, in the High Court, the Supreme Court of Appeal and, finally, in this Court, I thank you from my heart.

It has not been easy, not for any of us. Since this Court sits en banc, with every judge involved in deciding every matter that comes to it, we are forced to deal with each other daily, often in mountains of emails and attachments.

Over these 10 years that I have been here, the workload of the Court has increased by between four- and six-fold. The pressures at times has become enormous.  

In addition, the issues have been pressing, at times divisive and often emotional.

When I started in this Court in 2009, I remarked to my colleagues who had seen it through its first 15 years that those had been the easy years – that the difficult years lay ahead. That I think has proved true.

Not only in workload, but in political pressure and in the difficulty of the problems this Court has had to grapple with, in all these aspects we have been challenged in fresh and unprecedented ways.

Over this past decade, the still-unresolved Hlophe saga has hung over the Court.

In addition, we confronted racially divisive issues, including affirmative action, language rights and culture. 

Landmark judgments in these years have ensured that public power remains subject to our constitutional values and the rule of law and that public accountability is sustained.

Yet through it all, we worked hard as colleagues at finding ways to fulfill our commitment to the Constitution while being truthful to our judicial oaths but also respectful of each other.

We did so I believe in a way that recognised the depth of the issues and the anger they, sometimes rightly, trigger, but, each time, returning, after division, to renew our pledge to uphold the Constitution and its values.

In this, I do not think that any one of us feels the slightest self-satisfaction or self-congratulation. Not at all. There is still too much to be done. And the perils confronting us remain too large.

If I predicted on joining the Court that the preceding years were the easy ones, I fear I can make the same prediction now – that tough times lie ahead for those committed to democracy and governance under law in our country.

Since 2011, we have had the remarkable leadership of Chief Justice Mogoeng Mogoeng. His headship has been strong-willed, insistent, clear-sighted and uncompromising: redoubtable in energy, determination, principled commitment and insistent in the clarity and purity of voice – for truthful leadership, against corruption and dissemblance and lies, and for constitutional accountability.

In other words, Chief Justice you are a tough guy. (One hell of a tough guy.) 

Our still-fragile democracy owes a considerable debt to you.

We note that your own tenure will be ending in just 26 months’ time. Rumour has it that President Cyril Ramaphosa had better be on the look-out then, for you will surely be seeking a fit role for your post-judicial life. (But if those rumours are true, what will former Deputy Chief Justice Dikgang Moseneke do?)

But before saying something about law clerks, may I express my profound appreciation to all the staff of this Court – the judges’ secretaries, Registry and library staff, the cleaners and the security personnel. You made working here a rich and companionable experience.

And, most centrally in all of this, is my dearly-treasured personal assistant (PA), Ms Elizabeth Metse Moloto. Elizabeth started working with me on 11 October 2009 when the last of the Mandela appointees (Justices Langa, Mokgoro, O’Regan and Sachs) left the Court. She changed my life. Elizabeth is an unexampled phenomenon of efficiency, lucidity, memory and sustained positive energy.

Chief Justice if you were not here, I would nominate Elizabeth to run the Court. I am most deeply in her debt not just for the work she does for me, but for what she has meant as a human being in my life and that of my family.

Having mentioned my colleagues and the court personnel, I now have the very happy task of mentioning my law clerks – at present Michelle Sithole, Sagwadi Mabunda and Rebecca Gore.And now, my law clerks.

When I came to this Court more than 10 years ago, I had never experienced close interaction with law clerks. The experience was entirely novel. It changed not just the way I work, but the way I think and the way I relate to people.

I can truly say that the 30 or 40 law clerks I have worked with, including foreign law clerk volunteers, have brought me almost unmitigated joy.

They bring to the Court not just their acuteness of intelligence and research capacity, but their ideas – ambitious, future-seeking and always optimistic.

However worrying the signals from our democracy and our economy, how can we be down-spirited when the young people who energise this Court remain so insistently upbeat?  It has been an inspiration. 

I started off by saying that my overwhelming feeling this morning was one of gratitude.

My greatest gratitude is, of course, in being here at all. I have survived an epidemic in which many millions of us in South Africa and on this continent have perished. I have survived because of my privilege of place and protection and position.  

And I recall with pride that it was brave, principled civil society activists, together with a vigilant honest, truth-telling media, plus the judges of this Court, under Chief Justice Chaskalson and Deputy Chief Justice Pius Langa, who ensured that antiretroviral therapy would be available to all.

After nearly eleven years here, what strikes me as most enduring about this Court is its commitment to the future – to our country’s future, to our people’s future.

The AIDS Treatment judgment was a decision about government policy, but in its ultimate effect it looked not backward, but to the decades ahead.  Like all this Court’s decisions, it was forward-looking, and affirmative of this country’s most vital energies and possibilities.

As public values have sometimes dimmed, in the grim tissue of lies, deception and double-dealing through which our country has had to struggle to survive in the past decade, this Court has continued to look forward and ahead.

I remember the words of my colleague Mbuyiseli Madlanga, during our confidential discussions of one of the controversial cases brought during the governance of former president Zuma:

I want our decision to be right, not just for this President, nor for the President of my children, but also for the President of my children’s children.

That, I believe has been the fundamental commitment of each of my colleagues, and it has been a privilege and a joy to share in service to it – in pursuit of the vision of the Constitution – one in which all our people would enjoy the basic necessities of a dignified life in an increasingly equal society, in which injustice, racism, gender-discrimination, homophobia and xenophobia would be receding.

The fight for our constitutional values is now urgent more than ever, and that future-directed, future-regarding commitment more vital than ever.

That we sometimes shake our heads at how far we are from achieving that reality does not mean that we should not continue to pursue it.

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