Justice Edwin Cameron in a tour de force
Justice Edwin Cameron of the Constitutional Court spent an hour or so delivering a memorable lecture to the law students involved or interested in their social justice movement at UCT recently. What the judge said to the raptly attentive gathering is deserving of a wider audience than the 300 or so privileged to attend.The subject of the talk was the work of the Constitutional Court in two of its more controversial decisions, handed down in March and the other in April this year. These were the McBride case in which the freedom of expression of the Citizen Newspaper was allowed to trump the rights to privacy and dignity of the Magoo's Bar bomber who applied to become a metro police chief, and the Glenister matter in which the legislation creating the Hawks priority crime fighting unit was struck down as unconstitutional. Both were subjected to incisive analysis with due regard to the minority views of the members of the Court who did not agree with the binding conclusions reached by their colleagues.
Casting aside the lectern and microphone, the tall and lean judge engaged directly with his audience, hardly referring to the miniscule note which he brought with him. He drew five conclusions from his analysis of the issues in the two cases as he paced up and down in his conservative suit and pink shirt.
Firstly, he noted, there is the legacy of our past with which the decisions both deal - McBride with the violent past of apartheid, and Glenister with how our state institutions are seeking to overcome the inequalities of apartheid, but are being hampered by corruption. The law of fair comment in the public interest has become, in the light of the rights guaranteed to all in the Bill of Rights, the law of protected comment in the public interest. The constitutional obligation to have an independent corruption fighting unit, both to protect the human rights of all and to comply with the international obligations of the country, trumps the legislated will of parliament and the executive, both of which were prepared to make do with the Hawks. The common feature is that the law gave the litigants access to the structures of power in our constitutional democracy. Laws and conduct are held up to scrutiny on the basis of their consistency with the values of the Constitution itself. Those that do not pass muster are struck down as invalid, as happened in Glenister by the narrowest of margins when the court divided 5/4. In McBride the virulent criticism of McBride was found, also by a majority, to be compliant with the Constitution and the case was won by the upholding of the freedom of expression of the Citizen newspaper. In that case truth to memory in our present required open discussion of the violent past under apartheid.
Secondly, the learned judge highlighted accountability as a feature of both cases and of the work of the court in general. Defining accountability as the duty to explain what is done and to take responsibility for it, the provisions of the founding values of the Constitution were highlighted. Exacting accountability from the powerful was achieved in both cases in different ways. Though the Citizen's comments were held protected, this was by the narrowest of margins - of the fourteen judges who considered the case, eight ruled for the Citizen, and six (the trial judge, four in the SCA, and one in the CC) for McBride. The Citizen's writers who expressed the views were held thoroughly to account in their cross-examination. The Constitution regards ensuring accountability, responsiveness and openness as foundational to the new order created in a system in which the Constitution and the rule of law are supreme. This is starkly different from the parliamentary sovereignty which it replaced. The need for social accountability in a society such as that in South Africa was emphasised by Justice Cameron. McBride was not allowed to escape responsibility for his past actions and the legislation in question in the Glenister matter did not pass muster.
Third, attention was drawn to the provisions of section 38 of the Bill of Rights which give anyone the right to access to the courts if they allege a threat to or infringement of a right guaranteed in the Bill of Rights. Describing this as a call to activism and legal agency, the judge pointed out that Glenister's entitlement to promote his maverick approach through legal challenge was not even put in issue, as he clearly had standing as acting in the public interest in litigating as he did; something which section 38 entitles him to do. The students were encouraged to be activists for the Constitution and to use their legal agency to bring social justice issues to the fore.
Next, the judge, without mentioning the President's recent speech at the opening of the Access to Justice Conference, warned that there are limits to what can be achieved using the law. Calling this point the "limits of the law" conclusion, he drew attention to the fact that it is not the function of the courts to create or even set policy. Other branches of government are tasked with these matters. It is challenges brought to the courts for adjudication that trigger the process in terms of which courts are required to test the constitutional compliance of laws or conduct under attack. Equally, Mr McBride had found that the law offered him no remedy for a deeply wounding personal attack on him. The CC found that the TRC did not offer moral absolution, but only a limited legal release. There is thus a need for lawyers to be strategic about picking their cases in the sure knowledge that not all social change or forms of remedy can be brought about through litigation.
Lastly, the judge spoke about law's role in South Africa's future. He remarked that South Africa places law in a unique role in our continent. By this he was indicating that the supremacy of the Constitution and the rule of law, as set out in section 1 ( c ) of the Constitution, precludes the abuse of power by preventing the powerful from doing as they please. Everyone, including those in positions of power, is constrained by the Constitution and everyone is liable to have their conduct scrutinized for its consistency with the values and principles laid down in the Constitution and by the rule of law. As under apartheid, law could be used for good or for evil - under the Constitution it was imperative for law to be used to create greater social justice, and this was up to imaginative, public-spirited lawyers.
Question time was also illuminating. Penetrating probes were not ducked and honest engagement ensued. Perhaps most memorable was the overwhelmed response of a young black female student who simply could not find the words to thank the judge for the benefit of his insights and for being who he is, so she expressed herself with tears of gratitude instead. When the next questioner pointedly cleared his throat, the judge asked him whether he would like to cry too. Given the state of the nation, there are many who may be inclined to accept the judge's invitation.
Paul Hoffman SC
22nd August, 2011
