This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

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01 May 1996: Sachs, Albie

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POM. Albie, let me first of all ask you a general kind of a question. Since you took up your position on the Constitutional Court how has your life changed?

AS. In terms of living the change has been enormous. For the first time since I left university, I would say, I can predict what I will be doing in a few months time, let alone a few years time. We have structured terms in which the court sits, I have a guaranteed income which by law, and even by the constitution can't be reduced, and we have an infrastructure for our work that's physical in the sense I've got an office called my chambers and I have a secretary and I have two research assistants, but I am working as part of a team that has a constitutionally institutionalised existence and there's a sense of serenity that I haven't had, as I say, since I left university.

. When I left university it was to go to the Bar. I took up chambers of a colleague of mine who had been arrested in the treason trial, the furniture was furniture he had bought, he hadn't spent very much because he felt he might be arrested at any time and in fact he was arrested. The prospect of being whipped off to jail was there all the time and in fact I used that furniture for another nine years. I was twice arrested in that time. And then when I went into exile it was always with a view to we didn't know where we would live or how I would earn my living or what I would do. I would be writing books and studying and then a PhD and then teaching a little bit and then going back to Africa after independence in Mozambique and always the thought of "We're going to go home, we're going to go home, we're going to go home", so that everything was impermanent. It had an impermanence built into the very nature of being in exile with a conviction and a certainty that we would return home.

. Then coming back to South Africa I came as a visitor. I had to get a permit to visit my own country. I've often said the only time I really felt back in South Africa was not when I got my passport back and my citizenship but when I put a cash card into a hole in the wall and I got money out, then I knew I was back. But, again, that immense sense of impermanence and uncertainty. We were now fighting for a kind of a bridgehead, a foothold, a return in the full sense of the word which was related to creating a new constitutional order, new constitutional dispensation and in technical terms my South Africa Constitutional Study Centre relocated from the Institute of Commonwealth Studies in London to the University of the Western Cape. I was also honorary professor at the University of Cape Town. I was dependent on grants which ran out and it was always a bit of a hassle just to keep afloat economically. It wasn't desperate but that insecurity was there all the time and most of my work overwhelmingly was related to the new constitution either directly working on negotiations on different texts or else establishing the fundamental ideas for the new constitution which I've spoken about at considerable length to you earlier on.

. And suddenly 1994 comes along, we have the elections, that moment I spent my whole life waiting for, what I wrote about the banality of a good, instead of being a euphoric, ecstatic moment, for me it was a moment, I wouldn't say of depression, but I felt that bureaucratic activity, standing in a line, putting a cross, being shoved along by the people behind me, was this what my whole life had been in preparation for? And so many of my friends and family who hadn't been politically actively involved said this was the greatest day in their life and for me it had a terribly flat kind of a quality. I was overexcited, I hadn't slept the night before, there was something exhausted inside me on that particular date. Then began the period of finding out what's going to happen to me in future and I think I've told you about the whole process of being nominated to the court? If I haven't, I think I have, it was very, very painful for me, very difficult. There was strong opposition from certain quarters to my being on the bench and very fierce support from other quarters. I think I can say I was the most controversial candidate by far.

. So suddenly I am a judge and I remember going up to the building in which the Constitutional Court functions and we spent a couple of months just getting ready for judging. I was appointed I think in mid-October and it was decided not to start hearing cases before February, and being escorted around by the President of the Court and everybody saying, "Good morning Judge", "Good afternoon Judge", and I would almost turn round to see who was being addressed and the President of the Court telling me, "Albie you'll just have to get used to that." I have never fully got used to that. I acknowledge that one needs a certain decorum and great seriousness of purpose in actually carrying out the function of judging. It's not a light matter, it's an enormous power that's conferred upon eleven individuals. There are eleven of us. We interact, so it's not a great individual power but within that context it's an immense power. We can strike down laws of parliament, we can tell the President that he's acted unconstitutionally and force him to do something all over again. More than that we're establishing norms and morality and a basic philosophy for our country so the sense of, I don't say the weight of it, I don't see it as a heavy responsibility, I see it as an intense responsibility and that has to be taken very, very seriously indeed. The trappings, the role, the function, the status of being a judge doesn't move me very much at all. On the contrary I find it a bit of an impediment to life. It came out in an amusing way when I was on a film set, I had been watching the rushes of a film and one of the actresses who played in the film, in fact the role of a shebeen queen ...

POM. The movie of?

AS. The working title was Babel, but that's not relevant to the story. The story is that after we'd watched a little bit everybody was very elated. We had seen some of the rushes of the film and this very attractive actress came up to me and she was rubbing her knee in a very affectionate way against my knee and it was fun and quite enjoyable and then she heard I was a judge and she leapt back and stopped rubbing my knee and I thought, well what is it that you can't be friendly to a judge just because he's called Judge. There's quite a lot of that. I don't think it's necessary. I don't think it goes with the job. I don't think the aloofness and the distance should be there in your ordinary daily conduct and behaviour.

. I think it is important that you cut your political ties not simply for the way the public and litigants and so on would see your objectivity but even in terms of your own head, the loyalties are different. If you belong to a political organisation it must be meaningful, otherwise why belong to it? And that means you're part of that collective. You can have your independence within it but to a certain extent you accept the sense and the consensus of that collective and you see certain aspects of the world through that prism. When you're fulfilling a public function, particularly a judicial one, then you don't forego the basic deep human philosophic moral values that have seen you through life. On the contrary they become, if anything, more important. But the shaping, the articulation, the vocabulary, the points of reference, the kind of people you consult, the people you listen to, that becomes different and now it's another mould and another mode. It's an artificial one in a way. It's shaped by the traditions and the culture and the styles not only of a certain legal grouping in your own country but internationally and I suddenly discovered that I'm part of a big international community of judges and lawyers and legal philosophers and law professors thinking about the ideas of fundamental rights, of constitutionalism, of how the judiciary is part of government and yet acts as a break on government.

POM. Let me ask you about that. That's one of the big debates in the United States for the last number of years, that the judiciary, particularly the Supreme Court has taken over the functions of the legislative branch simply because the legislative branch is either unprepared to make decisions or unwilling to bear the political cost of doing so, so that the judicial branch has in fact become the legislative branch to a considerable extent. If you had to compare and contrast the Constitutional Court here with the Supreme Court in the United States where do you see the similarities, where do you see the differences and do you see that kind of situation arising of where in time you will be compelled because of circumstance or the unwillingness of the legislative branch to confront difficult choices to make decisions that should be made by another branch of government?

AS. I don't know. It's still very, very early days here. What I do see is some of dilemmas we share with the US Supreme Court but the whole setting is very, very different. Our Constitutional Court came into existence at roughly the same time as the new parliament and the new constitution and we're all thrust up by the same, if you like, democratic, pluralistic and human rights oriented impulses. So the kinds of tensions that could exist in the United States based on different generations, people being appointed in a particular era, democratic elections taking place at this junction between the two, is less likely to be noted in our case. We've got a pristine constitution, some of us even participated in the elaboration of that constitutional text. The original intent which has been the source of such controversy in the United States doesn't apply in the same way here. We're not speaking about people interpreting a constitution written 200 or more years earlier. We're speaking about something written two years ago in which some of us participated. That's not to say that we simply give voice to what we felt at the time of the writing. They are also very different processes. The judicial function has its own internal logic and laws and constraints that are very different from constitution writing. The fact is that these disjunctures are far less. What we are being confronted with very much is a whole ancient legislative order, a mass of statutes produced in the pre-constitutional era, in the non-democratic era, now being subjected to constitutional scrutiny. So the tough choices of sitting in judgement over truly democratic legislatures representative of the people at large, functioning within the framework and conscious of a constitutional order, we've had very little of that. We might be getting that.

. Basically what we're doing in most cases is sitting in judgement over statutes passed ten, twenty, thirty, forty, fifty years ago by the racist parliaments of South Africa. So that makes that aspect a lot less complex and difficult. Nevertheless we have struck down post-independence, post-April 27th legislation. I'm sure we won't hesitate to do so if we feel that it is unconstitutional. And in the one very important case where we did that, and it involved invalidating two proclamations by President Mandela dealing with local government elections and proclamations issued in terms of a statute adopted by the new parliament clearly intended in its general terms to facilitate the holding of the first democratic local government elections, we struck down those proclamations by a majority of nine to two and the President accepted with very, very good grace. He said that he had acted on good legal advice which turned out not to be good enough in legal terms and he accepted the ruling of the court and he also indicated that this showed how deeply implanted democracy was in our country, so he saw the striking down of his proclamations almost as a victory for the society in which he was living. So far from that producing a sense of strain and conflict it almost cemented the presidency, but that had a lot to do with his way of looking at the emergence of the new democratic order.

. Can I just say that the one issue in which the Constitutional Court probably went against public opinion, not public opinion as expressed through the new democratically elected legislature but public opinion as understood in society at large, was when we abolished capital punishment. The statutes were old statutes, pre-democratic era statutes, and the Minister of Justice strongly urged us to strike down the statutes. Normally government defends legislation but here was the case of government encouraging us to strike down the legislation. The Attorney General acting on behalf of the state defended capital punishment and it was probably not, judging from newspaper editorials and so on, a popular decision but I think it was a respected decision and while we're giving this interview, the Constitutional Assembly is finally deciding whether or not to install or re-install capital punishment as a possibility or to go on the existing text of the constitution which means that text interpreted by our court effectively will mean the abolition of capital punishment.

. So again one can't say that this was a case of the court necessarily contradicting parliament but probably contradicting general public opinion, but the point was made in the judgement of the President of the Court that they are not all matters where a referendum or a plebiscite or counting of heads in the community results in the best constitutional solution. Particularly, I would add, this is my own gloss now, not as a judge but as a political thinker, in a country as diverse as ours with so many different interests having a stake in certain fundamental rules being maintained in society, you can't allow a simple head-counting to determine fundamental questions. Our country just won't hold together on that basis. There has to be a kind of a compact. There has to be certain foundational values or agreements that are not subject to simple, if you like, simple majoritarian fluctuation from day to day. I wouldn't say that capital punishment is necessarily one of those, our society I think could survive with or without it, but the anti-referendum idea, if you like, is quite an important one. It's particularly important ironically enough in this particular case for the people represented in the National Party who were the greatest proponents of the referendum, when it comes to their language rights and their property rights and their land rights and so on, they could very well be overwhelmed if they were subjected to referenda. So the referendum in a highly pluralistic society like South Africa with the majority having suffered great oppression and hurt in the past and living in conditions of great inequality in the present could be extremely destabilising and upsetting to the whole constitutional order.

. Now we in the Constitutional Court from that point of view have a pivotal role in defending these certain fundamental foundational values, compacts and agreements and I think it is an indication, although our work is not very widely understood in technical terms I might say, amusingly, not even by many of our colleagues in other branches of the judiciary and certainly not by many members of the legal profession and by many law professors, it's a new enterprise, it's not simply a continuation of the old judging, with its own dynamic and rhythms and vocabulary and internal logic that we are slowly learning, even working on a full time basis to function within. Nevertheless the idea of the Constitutional Court and its role in society as a whole I think has caught on and one finds in almost amusing ways if a husband and wife have a quarrel then he might say to her or she to him, "I'll take you to the Constitutional Court", as though this is the body that has the highest moral position and is the most objective and the most distant, that has the last word on all disputes.

POM. In that sense do you see the court as being a check on unchecked majoritarianism? It has always left me uncomfortable that the ANC say majority rule is democratic rule and have insisted on that with great emphasis whereas, for example, the starting point in Northern Ireland, just to give you a contrast is the very opposite. The starting point is that majority rule is not democratic rule. Do you worry about that when one party is so strong and so powerful and can express its political will in so many ways that it inhibits the kind of development of multiparty democracy that you need if democratic institutions are really to take root and take hold and to grow?

AS. I'm a strong supporter of institutionalised or protected multiparty democracy but I don't think that that's by any means the only guarantee of openness in society. I think a strong civil society is as important if not more important and we're very fortunate in South Africa, we've got a powerful trade union movement, we've got strong religious bodies and associations that speak out, that are used to speaking out, we've got the civics, we've got student bodies, we've got professional, cultural and social groups of every kind. The party system can in itself become a little bit corrupt and very much a kind of a charade, a jostling lot of newspaper coverage, jousting between leaders. I support all that. I think that's part of modern life but it can be a substitute for real democratic involvement and input and so on.

. Secondly, when the majority of people have suffered so much exclusion and disadvantage in the past and state organised depression and systematic deprivation and it continues to this day with inequalities, the defence of minority groups and minority interests and protection of minority rights can very easily become the protection of minority privilege and in South Africa it was really the majority that was the minority and the minority that was the majority. Some people have spoken about functional or sociological majorities as opposed to a numerical majority so the old set-up was based on the white minority being the functional or sociological or legal majority. So the challenge to minority protection, this has been based very much upon the importance of enabling the oppressed majority for the first time to fully participate in and benefit from the democratic order. Nevertheless it's being done in the context of a constitutional setting with extensive devolution of power, with a guaranteed Bill of Rights, proportional representation, encouraging the formation of political parties representing different self-constituted or self-seen interests and systems of government with procedures and rules constitutionally protected. That's been agreed to by representatives of the majority and is not being seen as inconsistent with majority rule.

. The only outstanding issue now is the question of the future of the government of national unity. Should that be institutionalised and guaranteed by the constitution as a permanent form of so-called power-sharing or should it be left to voluntary arrangements? I won't comment on that, that's an issue with the Constitutional Assembly at this stage and I can see the different positions can be felt on that. But just to say that at the time of the big debates before the interim constitution where the government of national unity idea, and I've told you about my particular role in relation to that and how it connected up with the Reconstruction & Development Programme, was finally accepted in the ranks of the ANC, it was always on the basis that this would be temporary. It was never a permanent commitment that's now being violated. It was always done on the basis that it would be transitional and that the sooner South Africa could become a so-called normal functioning democracy with all the ordinary checks and balances that are built in the better. So that remains an open kind of a question.

. It might be different in other countries where the minorities have been historically oppressed and marginalised and I was very struck when I was in Australia once and I met members of Aboriginal groups and to them democracy was the enemy. It was very poignant to me. We were fighting for democracy in South Africa. I said democracy is the friend of the indigenous people in South Africa. It might be the enemy in Australia, democracy in the purely political sense of counting the number of votes that a party gets at the time of an election and the Aboriginal people being 2% or 3% would constantly be outvoted and so had to find another source of legitimacy in terms of defence of their rights other than the ordinary democratic processes. Having said all that, and that's quite a lot, and I'm not speaking as a judge now, I do have a concern that the ANC could become like the institutionalised revolutionary party in Mexico. It has such powerful roots in the history of the people, strong allegiance, it reaches into every part of the country, that it's not easy to see a real alternative in the near future.

POM. An effective opposition?

AS. No effective opposition, effective opposition that could become an alternative government?

POM. Yes.

AS. You can have an effective opposition that does a lot to expose and criticise and so on and I think we need institutional guarantees and mechanisms for that. I didn't mention earlier the importance of open broadcasting, independent public broadcasting is fundamental. I'm not myself personally convinced that completely market dominated broadcasting gives the variety of opinions and views that a country needs. You can simply get other forms of hegemony and control of public information but to the extent that our constitution has provided a guarantee that public broadcasting will be independent and go for a variety of opinions, I think that's an extremely valuable check and we have a pretty independent press. I'm disappointed at the quality of the writing and the analyses and the criticism. I think there's a lot of very shoddy journalism and I think the things that are happening in our country are so extraordinary and interesting they deserve a better representation and a better debate than they are getting.

POM. Why do you think that is? Somebody called it, I think it was Pallo Jordan, called it 'the juniorisation of the media', which is a like a lot of college kids coming in with Masters degrees who became instant analysts without any background.

. I don't want to single out particular parties or groupings but the mind-set of the people in charge of the newspapers, particularly the English language press, was that of the grouping that ended up with about 2% of the national vote, and sometimes 2% of brilliant critics can say things and do things that 98% won't, but this was a 2% left behind by the process, not in advance of the process, not more critical, not more radical, not more perceptive, on the contrary, ten, twenty, thirty years out of date and a little bit partly enthusiastic about the process but partly feeling a little bit intellectually dislodged. They didn't quite know what was going on. Their commentaries were all wrong. The people they interviewed at the universities had made a very slender, if any, contribution at all to the process of institutionalising the changes.

. I am very, very disappointed and to this day I'm disappointed that the opposition that you get at the political level has very, very little intellectual content. It's looking for corruption, it's very important that's done. It points out mistakes of leadership, it's important that's done. It's not presenting hard, creative alternatives, it's not coming up with new ways of dealing with health, of dealing with education, of dealing with construction, of dealing with architecture, of dealing with culture. It's sitting on the sidelines and it's a parasitic and rather out of date intellectuality that we're dealing with. I am very disappointed.

POM. Is this part of the root of the acrimony between what I call white liberals and black intellectuals?

AS. There's a little bit of it there. I think that acrimony has a very artificial foundation on both sides. It's very strong from a certain set of the black intelligentsia, by and large not those that were deeply involved in struggle who have learnt over years how to get the best out of everybody, work with people, draw in people and build that broad South Africanism. It's a competitive rather than a cooperative intellectual approach and because it's people who have been on the sidelines and are still quite often on the sidelines, it has an artificial quality from that side. But it does pick up on the artificial hegemony, if you like, of sections, I don't like using the term, of 'white liberal' it's a very inclusive term not very well identifying a phenomenon or even people and it's painful in terms of the memory of people who are white and who were liberals some of whom, one I know who gave his life or was hanged for his role and others made rich contributions to what we have in South Africa and I'm particularly thinking on constitutionalism and fundamental rights. But I think what's being got at here is a certain sense of moral intellectual superiority of a certain class of people who are just awarding points, stars and minuses all the time and who see that everybody else has to change and all of the institutions have to change but they don't have to change because they've been anti-apartheid all these years and they are like the permanent critics who don't have to criticise themselves and I think a lot of introspection is required, not that awful biting your entrails kind of introspection, that's not very useful, but a kind of active, functional, ongoing, behavioural, if you like, introspection is needed. I think that's part of what I'm dealing with.

. I just see in so many areas there is such ferment in this country, there is such creativity, say in the cultural sphere, in dance, in music, in relation to the arts, the potential in terms of ideas, a new way of looking at education, at health, using the land, ecology, all these things, and there are very defensive postures from people who have been in charge of the criticism in the past, if you like, and instead of them being at the head of the transformation and intellectual turmoil and the clash of new ideas they are often worried about being dislodged and I think that's also very, very negative. There's a lot of carping in this country and there's a difference between carping and sharp, honest criticism. My deepest concern is the concern I expressed when I gave my inaugural lecture at UCT a couple of years ago. It was entitled 'Perfectibility and Corruptibility' and the basic idea was that all constitutions are based on the simultaneous possibilities of perfectibility, you aim for the highest, the most noble, the most ideal, and the possibilities of corruptibility, that everybody is subject to corruption and there is a kind of a tension between the two that's built into the very nature of the constitutional order and the written constitution. It expects the most, it gears itself for the most, it encourages striving for the most and it protects itself against the worst in relation to the very same people who are involved in government.

. So the biggest concern to me is that the ANC, being really the movement that by and large carried the process of transformation historically and in the recent period, that's by and large, not exclusively, carrying government now, if it becomes corrupt then the damage to this country can be terrible and I would see that as a very, an immense setback to my own belief and faith and personal philosophy. I wouldn't stop carrying on doing what I'm doing and it doesn't make me a defender, automatic defender of the ANC. On the contrary it makes me a critic, perhaps sharper and deeper than others. I expect more of freedom fighters than I do of others because the claims of freedom fighters are greater, the traditions are greater and the significance of what they're doing is greater for the country, for the people, for the members of that freedom fighting community.

. Now one of the protections against that is having a lively vocal active opposition. I also think it's very important that parties have to generally run for office, not just mobilise people every few years to get a fake kind of a mandate. They have to be in genuine fear of losing. They have to campaign on their policies, on their personnel. They have to run a little bit scared. If you don't run a little bit scared you become corrupt. So they have to strive to do better and that's another reason for needing a good opposition. I think the opposition is important not so much for the opposition or even for the people in general, the importance of the opposition is for the governing party, to keep it on its toes. But I would add to that the internal democracy in the ANC is fundamental and the importance of proper functioning parliamentary type institutions, I think these two are as important as having opposition parties. You can't create artificial opposition parties simply for the sake of saying we want an opposition party and then lament their failures afterwards and say, "Well then there's no democracy in the country". The democratic character South Africa, in other words, can't depend simply on the number of votes that opposition parties get. It depends on much more profound aspects including the role of civil society, the institutional mechanisms and protections given by the constitutional order itself, the culture of democracy in society and the internal democracy in the ANC. All these factors, the institutional mechanisms that provide brakes on and exposure for corruption and authoritarianism and abuse of power in office, it's a whole conjuncture of things of that kind. Then the question of the functioning of minority groups, cultural, religious, ethnic, political, whatever they might be, there one does need a culture of democracy that might be represented by political party opposition but I think it's something again more profound than that.

. I was very struck when a group of us visited Switzerland to try and discover, I wanted to find out what is this country Switzerland, and I came away I still couldn't work out what Switzerland was. It doesn't make sense. It makes sense as being a country of 'others'. It's not Germany, it's not France, it's not Austria, it's not Italy. It's remnants of those countries stuck up in the mountains there that have associated but it's not simply a negative country and what people explained to us was with their different languages, and I'm told even they play soccer differently in the German speaking areas from the French speaking areas, that there are quite profound cultural internal differences, but they explained to us that federalism is not simply a set of institutional mechanisms. And you look at the constitution and you don't actually see very much about federalism there. Federalism, they said, is there but it's a process, it's a process that's been built up over centuries involving massive consultation and consensus-seeking and accommodation and, they said, it's a culture, it's part and parcel of the character of public life. I think it's this that gives the Swiss nation it's character. It is that variegated, polyglot mixture that shouldn't work but it works because it shouldn't work and it works. But their pride is in the fact that being such a mixed group of people they found a way of accommodating and working together and establishing mechanisms that over the long run turn out to be in the common interest.

. Now I think that's what we're going to need in South Africa and it's done in Switzerland not simply by, I don't even know the names of the political parties there. I don't want to downgrade the importance of political parties but I don't think the key to democracy in South Africa is building up some kind of inflated, artificial opposition, working night and day to promote splits inside the ANC. People are entitled to do that, it's their democratic right to do that, but to me the measure of democracy isn't that. The measure has to be something more profound and more significant along the lines that I've been suggesting.

POM. In that regard do you think you're tapping on something that's emerged more in the last two years than it did previously and that is the overriding importance of culture as an aspect of self-identity and how that must be taken into consideration if the identities of different cultures are to be adequately protected, language being the most significant one in a way? Who would think that in Canada the country might split apart over English and French where it is essentially a bilingual country? In the United States the Spanish speaking community demand that their children be educated in Spanish. Here you have, I sense, that Afrikaners place far more emphasis on the language. I was saying that to Afrikaners their language or the threat to language is a much more important consideration than the idea of having a volkstaat which by and large they have forgotten about and that when language is under threat language becomes an integral part of identity, it means identity is under threat.

AS. Well I've written a lot on the language question. I was directly involved in the interim constitution, the formulation of the provisions on language and in a very big conference after that (this was before I became a judge) held in Pretoria where hundreds of language experts and interested parties were there and I was asked to give the keynote speech. Everything you've said corresponds to what I was saying at the time and in a recent judgment on the question of single medium schools and whether or not in terms of the text of our constitution and the spirit of our constitution the state had a duty to establish exclusive schools for Afrikaans speakers or on a religious basis for Catholics or Protestants or Zulu-speakers or whatever, the court unanimously decided that the text of our constitution did not impose such an obligation. It did impose an obligation to give instruction in schools in the language medium chosen by the parents where possible, so this was a guarantee of, for example, Afrikaans language being used in the schools and it did allow for communities privately using their own funds as a constitutional right to set up, say, an Afrikaans medium Christian school provided that race discrimination wasn't practised. It did not impose a duty on the state to establish Afrikaans medium only schools. As I said in my judgment part of the problem in South Africa was that the schools that were being defended by the petitioners in that case were very well endowed while there were hundreds of thousands, millions of black kids with no school places at all and language exclusion could be used to maintain a de facto white exclusion so that it wasn't simply a language question on its own. There are many Afrikaans speakers who would welcome dual medium schools provided that Afrikaans is taught, their children can study in Afrikaans and maybe in English as well if they want to. So I wouldn't say that there appears to be unanimous, by any means, Afrikaans opinion on this.

. In my judgment I also said that the 'never again' principle that is an important one in constitutional interpretation applies not only to 'never again will there be enforced segregation', but 'never again shall there be enforced assimilation'. In other words the attempts by the British at the turn of the century to force Afrikaans speaking kids to learn English, to study in English and as one writer said, "To become civilised by doing the long jump and forgetting their roots and who they were", is something that shouldn't be repeated. I studied international law on the question of individual rights and minority rights and in the League of Nations period it was clear that group rights were protected through treaties in international law but after the second world war the shift was totally to individual rights, non-discrimination and equality, but not group rights as such with a duty on the state to support groups. But in recent years there has been an opening up, a movement in the direction of acknowledging group rights. All of which is to say that these are issues which have been gone into in South Africa and I am far from firstly being insensitive to the importance of, even if the fears are at times irrational or unjustified they are real, they are there, people have them, and the fears of the group that exercised hegemony are no less meaningful and no less worthy of attention than the fears of groups that have been historically disempowered. Fears are fears and we don't have to wait for the moment when groups are suffering disadvantage before we take note of what legitimate rights are.

POM. Is part of the problem here that the debate is always coloured, I mean coloured by the fact that if the Afrikaners say "we're fearful for our rights", is that that's interpreted some way as being code words for "we want to find mechanisms to protect our privilege"?

AS. It's not just a code word. It's often a reality and some people feel safer arguing on the grounds of language and religion because they know that these are legitimate interests where there is protection but they want hegemony, they are pissed off as hell because they've lost their power to control and run the society and it's the loss of power that destabilises them and upsets them. So there is that element. There is also the element of great division of opinion. I think there are many Afrikaners who believe that the protection of their language comes from being a buoyant, lively, productive community that's self-sufficient, that's economically strong, that's well educated, that has a strong sense of self and is not reliant on state protections and constitutional protection so much, that has an integrated function in the South African social order and that is in some ways peculiarly located to act as a bridge between different communities in this country, partly because they are on the land many of them, partly because Afrikaans language is the language of many poor people of many communities in this country in a way that English isn't, it's a much more people's language in that sense, and they are putting the emphasis on those developmental aspects and internal autonomy aspects and far less on the aspect of 'we was robbed' which you get very much in the Afrikaans press and amongst some of the politicians.

. So I think anybody who speaks in the name of Afrikaners with conviction that 'I have a right to speak on behalf of the whole group', I think is being a little bit politically intellectually arrogant. None of which is to say, experience throughout the world suggests, and experience in this country, you can't be too sensitive to cultural and religious and group claims. I would rather lean over a bit in that direction than be cold towards it. But what many people speaking as Afrikaners do is they forget that Zulu speakers and Tswana speakers and speakers of less widely used African languages like Tsonga and Venda, have the same intense concerns. It is seen as a purely Afrikaans language phenomenon and the minute it's done like that it's already becoming exclusive and different although they claim 'we are trying to defend all languages' and frequently there isn't this accommodation, there isn't sitting round a table, there isn't an attempt to find ways and means of sharing. It's building up stockades, protections, laagers. It's a very defensive kind of mentality that I don't think is necessarily the most helpful one.

POM. I want to ask you two areas, and thank you for the time and when you're tired just tell me and I'm out of here because I know how valuable your private time must be to yourself. One is, from where you sit now on the court how have your concerns about the future and the future direction of the country and democratisation changed from when you were an activist or part of the struggle or even part of one of the negotiators of the interim constitution?

AS. I don't see any profound change in the sense that it was never politics. Politics was simply the means to achieve the end of it, for decent society to get rid of the pain of the oppression, the division, the injustices, to feel free and I couldn't feel free inside myself if my country wasn't free. So none of that has changed. The mode of functioning has changed completely. I am not part of an activist community, I'm not part of a group competing for office or trying to project itself as being worthy of being supported in future. I watch with great interest what's happening in parliament as a democratic institution and I'm at times amused to see how my old comrades in arms are functioning, assuming the new responsibilities of ministers and their little voice changes and body language changes, they become a little bit more important, they laugh in a slightly different way. But I'm particularly interested in the way the portfolio committees are functioning. That was something I pushed for for a long time and where we picked up in the States in fact the hearings, it's very much a feature of the U S Congressional set-up which we thought could be valuable here and I think they have been very valuable, have knocked the hell out of the MPs in terms that they are on so many committees they are rushing hither and thither. But the fact is it does bring civil society directly into the legislative process, it opens up parliament.

. All these things are very, very pleasing. But I see it from a distance. I don't have any influence on that. We are waiting for the final text of the new constitution to reach us. As judges we have to verify the 34 principles agreed on in advance have been complied with so I will have a direct function as a judge in relation to the working of parliament in its capacity as Constitutional Assembly. But again it's a very, how can I say, artificial, special kind of role that will be fulfilled. I don't see a massive change from that point of view for myself. Maybe I was always a little bit more philosophical and concerned with basic values. I didn't enjoy the election campaign all that much. I'm not good at the hustings. It's not to say I don't admire people who are. I think they are necessary and they are fun. I did a lot of house meetings where it would be quiet discussing and analysing and where I could criticise the party I belong to quite easily. You make concessions in that kind of setting, speak very freely with people. So it hasn't meant a huge change from that point of view. What is difficult for me is I can't express my opinions on a lot of current affairs. I would have loved to have been involved in working on the text of the final constitution. I think I often was quite good at finding formulae that would accommodate both sides. If I had special skills it might be in that area, and I just had to stand back completely tempting though it might have been to get involved on the property clause, on the language question, whatever, I had to stand back completely. But not being able to express my views on lots of current affairs that's quite hard, that's quite hard.

POM. Let's talk for a moment about the Truth & Reconciliation Commission. My problem, and let's maybe talk about it in a number of general contexts, in my mind I make a moral differentiation between violence used by people who are oppressed, who have exhausted every other remedy of change and violence used by the state to maintain oppression. Yet the Truth Commission becomes a neutraliser, or appears to become a neutraliser in fact. I see a difference between a bomb placed by, say, Robert McBride in a bar and a bomb placed, like was placed and blew your arm off and whatever. I see differences there, moral differences and it's those moral differences that must be made clear to people. That's one. Two, in terms of reconciliation I ask white people do they follow the proceedings, do they read the newspaper accounts, watch the television accounts and by and large the answer is they don't. It's as though it's a process for the victims and their families but that it's not reaching out there and producing a national, particularly in the white community, revulsion on what was done in their name. Mostly the excuse, as was used in Germany, is used, "We never knew what was going on." And this troubles me as to the lack of differentiation, accountability on the one hand and also the lack of it apparently fulfilling the function for which it was intended.

AS. But it's still very, very early days. I was directly involved in the establishment of the ideas that underlay the setting up of the TRC. I don't know if anybody has told you about how the concept first emerged and it might be worth recording this. In a slightly strange way we had a debate, the National Executive Committee of the ANC, it would have been in the year before the elections and I can get the date because it was I think after the report.

POM. Talking about how?

AS. OK, it's once upon a time which in my recent history means once upon a time at a National Executive Committee meeting where so many of these dramas were played out, the report of the second ANC Commission of Enquiry into the abuses at ANC camps had been filed and the question was, what shall we do about it and what shall we do about the recommendations? And the recommendations, as I recall, were to the effect that appropriate steps had to be taken against the camp officials who were responsible, some of whom were identified. It was in some ways a complicated situation because these were not full hearings with complete investigations and full cross examination of everybody concerned although within the possibilities counsel were made available, somebody was made available for those who wanted to defend themselves and for witnesses to be called and all the rest. They weren't in that sense enquiries that really went down following due process, identifying individuals beyond reasonable doubt as being guilty of certain culpable behaviour.

. I think the commission worked well in general terms. Within its terms of reference it played an important function and there were many of us on the NEC who spoke strongly in favour of following through with the recommendations of the commission. There was also opposition, some of it I'm sure was organised by members of security who were worried about what would happen to them and they did their lobbying. But there was a strong argument that was used that I think didn't come from those quarters and that argument was people would often in certain acute circumstances say, "What would my mother say?", as a kind of what would the ordinary non-politically sophisticated person, African person, in this situation, how would she or he react? And I seem to recall somebody saying, "What would my mother say?" seeing the ANC lacerating itself, suspending and penalising and criticising its own members who were guilty of these abuses and the real rascals in the old South African government are getting away scot-free, nothing's happening. They will say, "Are you mad, what kind of crazy organisation is this?" As far as I was concerned and the others who spoke, we weren't mad, it makes a lot of sense. A liberation organisation has higher values, it doesn't take its standards from what the enemy or opposition are doing and if abuses were committed in camps under our control and responsibility we had to take responsibility, all of us, for that and responsibility meant if you couldn't undo what had been done, acknowledging what had been done and following through on that basis. It was a very heated debate that took place, a good debate, an honest debate, intense, and it was very difficult to see a way out.

. I can still remember Pallo Jordan saying in that slightly high pitched voice that he has particularly when he's a bit emotional, saying, "I don't see any difference between ANC torture and torture by the security police. Torture is torture, there is no moral distinction between different forms of torture." And he was making a point that I felt very strongly about. If there is a difference it's even worse when it comes from a freedom fighting organisation. It's even less excusable. That's a completely different thing about using violence to overthrow a racist regime that doesn't allow any alternative mechanism and from that point of view the argument then isn't about whether to use violence or not but how the violence is used and there was a fairly strong move in the ANC and round about 1987/88 to go for civilian targets and it was rejected by the NEC after a full debate, but it wasn't cut and dried all the way through and I've written about it in my Soft Vengeance of the Freedom Fighter, how distressing it was to me and I am so glad that the movement held to its principle position because we would never have the South Africa we have now if there had been indiscriminate attacks on white civilian targets however powerful the compulsions, emotional compulsions might have been for people. It would have been strategically a disaster for the country.

. The conclusion was, and Kader Asmal played a very big role in this as he did in the whole concept of a Truth Commission all the way through, his inaugural lecture was based on that at the University of the Western Cape, he put the issue on the table for the first time in South Africa. He did research, he set the ball rolling and it was only afterwards that people like Alex Boraine and others picked it up and developed the whole thing. So Kader, if I recall correctly, proposed the setting up of a Truth Commission that would look into the abuses in the ANC camps but as part and parcel of an overall look at all the violations of human rights committed in South Africa by all sides. So it would be wrong to say that the violence used by the ANC was on a par with the violence used by the state because the state had all legitimate legal powers, even illegitimate, if you like, legal powers to do what they had to do and the assassinations, the bombs that they used were illegal even in terms of their own legality. The violence used by the ANC and particularly when it was restricted to military type targets was part and parcel of a broad popular movement to overthrow apartheid and so on, I think has to be morally, politically, legally, jurisprudentially classified in a different way.

. When it comes to the torture I don't make that distinction. One can say that in the ANC camps there were 19 year olds with no experience, having the camps was a completely new kind of thing, it was in war torn Angola under terrible conditions, but I still think that there was a certain philosophy that had been picked up, that a good revolutionary knows no mercy, shows no mercy to the enemy, a good revolutionary is not held back by so-called human rights ideas and all the rest. It was a pernicious philosophy that could have destroyed our movement. I don't mean destroyed it physically but destroyed it morally to the extent that other liberation movements haven't faced up and didn't face up to these matters. They paid dearly and are still paying dearly. What was important was that the issue was put on the agenda at the ANC conference in Kabwe in 1985, there was a clear repudiation of ill-treatment and abuse as a so-called legitimate technique of countering the enemy. There was a change in the personnel of the ANC security and we established new institutional mechanisms to prevent it from happening again. I wouldn't say that they were completely effective but there was a move strongly supported by Oliver Tambo and by the legal committee of the ANC to entrench the human rights ideals and practices within the liberation movement itself.

. I find looking back it's an extremely moving episode in our history, in the history of Africa, for the world if you like, a liberation movement laying down detailed rules to ensure that humane principles operate even while they are being bombed and threatened with assassination attack and as it turned out poisoning and all the rest, because this is what the movement is all about, not simply as a philosophy and declarations that are made, mechanisms with trial procedures and a code establishing, classifying different forms of offences, procedures that have to be followed, review powers that have to be exercised, defence counsel being applied, charges having to be established and all the rest, and it did make a very, very big difference. I'm not saying that it prevented abuses, there were abuses after 1985, on a very small scale relatively speaking, and they were not countenanced, they were not regarded as part of a policy. The leadership didn't turn a blind eye to them, the leadership tried to find ways of overcoming it.

. So nevertheless I think it's absolutely appropriate, the abuses in the ANC camps should be placed before the Truth Commission and appropriate findings should be made and the people who suffered the tortures in the camps should have their chance to say their piece. That's the place to do it. If it's not done in that way apart from anything else there's manoeuvring and manipulation in a way that isn't dignified, isn't honest. With regard to the bombs like the Church Square bomb, again I said before the elections on a number of occasions, there's no such thing as an ANC bomb and a security force bomb. A bomb is a bomb and if you're blown up and you lose an arm, you lose an arm. So from an existential, a human point of view, I don't make any distinction between the two and I think it is right that all the persons involved in the conflict on whatever side should have their chance to come and testify and be acknowledged and for the pain to come out. And people will respond in very different ways. There was this extraordinary chap from Amanzimtoti who said that, "My eight year old child", it was a white person, "died for freedom in South Africa." He said he understood the motivation, he met the family of the ANC guerrilla who placed the bomb, who had been executed, and they met at a human level and established quite an extraordinary, very beautiful, emotional contact. That's good for this country. There are others who are the survivors of these bomb attacks who are much more bitter and intransigent and who want justice as they see it, they want people to be prosecuted. They're not even speaking about forgiving.

. Well the whites have got a long, long way to go. In general white culture is not a generous culture, it's not a deeply humane culture, it's a selfish culture, it's a culture that's been fostered and developed by privilege and selfishness and the whites have to learn, and are learning slowly, we whites are learning to open up, to be more gracious, to pick up some of the spirit of Africa, of ubuntu it's sometimes being called. So I think the warmth, the generosity, the emotionalism of the proceedings is saying something for our society and to our society. I think it's very important to allow the unknown victims of these atrocities to have a chance to speak out. Overwhelmingly it will be black people who suffered from the apartheid state but that doesn't mean you have to exclude others who suffered in other ways and suffering is suffering. I think it's got to be across the board, then the findings can take account of historical circumstances and the factors. Interpretations that people place on what happened will also take account of the different background factors, but I think it's very important that the opening is there for everybody, appropriate forms of reparation are found that won't be essentially financial compensation, there just isn't the money to do that. I won't comment on the question of indemnity because that might come before the court.

POM. I was going to ask. Maybe you can comment on this aspect of it, or maybe you can't because I don't know what is legal or not strictly legal. My understanding is that if an act is adjudged to have been carried out on behalf of the political objectives of an organisation it can qualify for indemnity or for amnesty. Now my problem with that is that it takes the question of even-handedness too far. One could reasonably argue out of that that if I had been Eichmann I could have said, "Well the political objective of my party was to eliminate all the Jews and I carried out my act in conformity with the political objectives of my party, therefore I apply for amnesty."

AS. No I don't think that case would stand up at all. An element of proportionality is built into the criteria that are used and the principles, so it's not an automatic thing. What happened at the time of the constitution was an accommodation was made. The security forces, many of the personnel said that, "We will guarantee the elections, we will crack down on the right wing, on the AWB bombers and so on, but don't expect us to do that if we're going to land up in jail immediately afterwards." So this wasn't some kind of sordid horse-trading or deal just to get consensus or to satisfy political leaders. It was a hard, cold appraisal of the real situation, what would advance democracy the most, what would save human lives, what would create conditions for the very democracy and which enabled the Truth Commission to be set up at all. We wouldn't have had a Truth Commission with any options at all if we hadn't had elections. We wouldn't have had elections if we hadn't had guarantees of a certain measure of security. So you can't separate out those aspects.

. What was refused at the negotiations was a blanket amnesty simply wiping the slate clean. The compromise was in effect to say amnesty will be granted but on the basis of procedures to be laid down by parliament which left open the way to establishing a tribunal which would deal with cases on a case by case basis and enable a balance to be made between encouraging disclosure on the one hand and granting amnesty on the other. I personally supported that balance. I think the truth is more important than punishment, to get more truth. I was concerned when I supported the whole objective of the commission with if you have punishment and judicial process you've got to have due process. Due process takes years and even then you often don't get the main culprits. You are clogging up the courts and public attention and expending vast sums of money on prosecuting people without necessarily having just results in the sense of catching the real crooks. On the other hand, and you might get very little truth in that way, people will just zip up, they have no incentive to speak. On the other hand by relating indemnity to disclosure you're encouraging these villains to speak out and when they speak out I think it's quite important for themselves but more important for the country to get much more truth about what really happened.

POM. But if they speak out and are then denied indemnity how can they be fairly tried when they have already put themselves in a position of double jeopardy?

AS. I think there is a clause, I'm not quite sure about this, that prevents anything being said to the Truth Commission from being used in evidence and subsequent criminal proceedings. If there isn't they can try and get constitutional protections in that respect but I wouldn't like to speculate on that. The point is that an extraordinary process has been developed to deal with a very extraordinary situation and it was based on a lot of enquiry. We had people who came particularly from Chile and the South African Commission is very much modelled on the Chilean Commission, from Argentine, from El Salvador. We have done investigations into what happened in Eastern Europe and so it wasn't simply jumping into a quick-fix kind of a solution. There were extensive discussions and debates beforehand. The matter went to parliament, it was very, very extensively discussed in parliament. All sorts of arrangements were made to try and make the process as inclusive as possible. There was a very careful process of selection of the commissioners and now the proceedings have got under way.

. I have heard criticisms from many friends of mine that the tonality is too religious and that it would be better for the commission to be a little more objective, a little less interventionist, but now speaking not as a judge but just as a person, I think that Archbishop Tutu follows his emotions, his emotions are emotions tutored by life experience in this field, very sensitive in particular to African culture and Afrikaner culture that is deeply influenced by religious factors and he is giving full play to those factors and the two biggest cultural groups involved in this process are strongly represented in that sense by the way that he has been giving leadership to the process. So I don't think its inappropriate. It's not a court of law, it's not a quasi court of law. It's got a particular historic function at this particular juncture and I think that the sense of integrity, of even-handedness, of allowing everybody to speak is extremely important in establishing, if you like, a rainbow quality to pain and to the victims, for everybody to be able to speak out. When it comes to the indemnities it's going to be people, largely white Afrikaans speaking men, who are going to be involved but it may not be exclusively so, I don't know. And when it comes to the reparations group I don't know how they are going to function but again it's going to be reparations very much directed towards the intense moral feeling of people rather than simply trying to put a money value on terrible atrocities which would actually reduce the quality of the whole process.

. When you speak about the whites not responding I don't believe them always when they say that, I think there is a fascination with the process. I think a lot of the whites switch off in their heads because they can't take it all, they feel challenged. I think a lot of whites are acknowledging and noticing it. They are surprised at the across the board quality, they never believed it was possible, they saw it simply as a trick by the ANC to condemn the National Party. It's not panning out in that particular way, certainly at this stage that I'm giving this interview. They are surprised at the genuine humanity and human emotion of the story telling and the whole kind of process, they are surprised at the level of forgiveness that's being offered and at the detail and the humane quality of the presentations. These are not harangues. These are people speaking out from their hearts and crying and weeping and pure emotions that anybody can understand. But even if the whites didn't listen, watch and look, the black community have a right for their pain to be heard, acknowledged and understood and that would be enough justification. I think the whites are slowly being emancipated, slowly being liberated. This is just one part of a long, long, long process, a very important part. One can't expect it on its own to produce that sense of responsibility, introspection, humanity and opening up that one really wants. That's going to be a long, long process and maybe younger people will now start accepting a new normality, a normality that repudiates all these crimes and atrocities of the past, doesn't try to defend them or justify them and I think that will be a big gain.

POM. Do you find in your average dealings with people an element of, "Gee, we knew the police were brutal sometimes but we had no idea this level of violence was being committed in our name", or whatever, it's the excuse of, "We didn't know"?

AS. I do hear a little bit of that. To be candid, I was away when the Truth Commission started. I was away, I think I left the day before it started so I haven't been around very long while it's been functioning, I haven't been very much in touch in that way, but I have picked up a bit of this. I had picked up the same thing before in some of the very sensational trials where all these things have come out, have been quite widely reported even in the Afrikaans language press, the De Kock trial for example, that kind of a response I have found it. The good side of that sort of alibi as it were, "I didn't know, I wasn't there", is that it does involve a repudiation of the past, a distancing which in a way is good, people are not trying to justify and defend and that is an advance on the previous positions, a cynical position, "Well everybody did it, why shouldn't we? We were defending civilisation as we saw it." There are very few people who say that. There is a sense of shame involved even in the saying, "I didn't know", and I would see that as a step forward, but there's still a long, long way to go.

POM. I know comparisons are the worst thing one could make in a situation like this but I was reading some of the testimony given in The Hague and statements taken in the concentration camps there and I mean truly astonishing in terms of ...

AS. You're talking about Yugoslavia?

POM. Yes. Truly astonishing in the evilness and sheer inhumanity that leaves anything here almost pale by comparison in the same way that anything here leaves anything that happened in Northern Ireland almost pale by comparison. How does one, or can one put things in perspective?

AS. I don't think it's useful to even try, then you end up comparing everything say with the Nazi genocide and the holocaust and so on and if that paralyses you that's bad. These evil forms erupted or emerged in different situations and each has to be dealt with on its own merits in its own particular way and what's been important in South Africa is that we are establishing our own internal mechanisms, the victims and the perpetrators all being involved in trying to find processes. I think that has a much more profound effect than simply having outsiders coming in and passing judgement and establishing moral scales of culpability. But many situations don't permit of that.

. In the case of Northern Ireland I only see the solution coming about when in the end as we sat round a table, looked into each other's eyes and started accommodating and trying to find what one would call the commonalties and the knowledge that we have to live together in one country, that's our destiny. There are no other real long term solutions and we've got to try and find modalities and constitutional forms that will encompass that on a basis of principle and honesty. When that started we had terrible fights and bickering and breakdowns and so on but in the end we came through because we shared that need to have a country that's going to work, that's going to function, our intense inter-dependence was acknowledged in different ways. I see the process of truth and reconciliation being part of that process. It was so important that we didn't adopt a position of simply saying let the dead bury the dead, forgive and forget, let the past belong to the past. You try and do that and the past comes out and hits you when you least want it. It's manipulated in opportunistic ways by people. It's much better to manage the process and the process of managing the process itself has that, it's more than a cathartic effect, it's a healing, it's a binding effect. It establishes these processes of mutual participation in overcoming problems that is so important for our country and I suppose for all countries.

POM. Last question, and if this is a legal question just forget it, and it involves an aspect of the General Malan trial. I had asked a couple of the people I interview what if he's found innocent? They jumped back and looked at me and said, "Well he can't be found innocent, he's guilty, they are all guilty." These are highly intelligent people and the thought of his being found innocent simply never crossed their minds and they couldn't deal with it. Their answer was, continued to say, "Well he will be found guilty because he is guilty." Now I want to relate that in an odd way to the Rodney King trial in the United States where the video tape showed what happened, the jury came in and said the police officers were innocent and half of Los Angeles burned in the following week with black rage and anger coming out. If the generals are found innocent do you think there is a prospect that there will be an eruption in the black community here, that they will see the whole thing as having been a farce, another example of 'white' justice, white men administering the justice, as it being a show case farcical trial to get them all off the hook?

AS. First of all I think that the quality of the evidence is totally different from the Rodney King one. We're dealing with events that took place about eight years ago, the witnesses memories are often very confused. We're dealing with allegations of a broad conspiracy and a crucial problem for the prosecution will be to establish not only that the generals set up the hit squads but that they set up the hit squads in a way that inevitably led to the deaths that followed and there are lots of legal problems and the possibilities of acquittal are very, very real for some, if not all, of the persons concerned. I think there are many ways people might respond. They might say, "Well thank God we had the Truth Commission", because we have these trials and in the end, like after the long Goniwe Inquest, there wasn't a firm finding that could be made. In the end people might say, "Well we never really get to the bottom of it, we don't know fully who were involved." But I don't think it's likely to happen in South Africa in the way that you raised. I think we have a much more politically conscious, socially and civically conscious population, a press population in this country that sees change, that has means of achieving change other than through these riots. We have forms of leadership down to the grassroots that don't exist in other parts of the world and frequently not in North America which is a very individualised society, ethnicity being mobilised at certain moments in certain ways and I don't see that kind of result. I could see a sense of chagrin, feeling that we are still having people judged in terms of judges and courts structured under the old system. There might be resentment that a lot of the villains are getting away with it but I would say in KwaZulu-Natal what people want to see is that people responsible for the current murders are being brought to book. That's why it was so important to have this trial. Whether or not they're found guilty or innocent is less important than (a) the willingness to confront senior people with their alleged deeds and (b) getting rid of that sense of impunity that you can kill and know that the structures that are supposed to be there to apprehend you are going to connive at what you're doing and protect you. That's what's being overcome by these trials.

. And then lastly even if they're found not guilty there has been the evidence that they did set up clandestine groups. A lot of the political charges, and I'm not speaking about a particular government, but the establishment of third force activities, the encouragement of black on black violence, the state involvement in all that, all that is being established. Whether or not it gives rise to legally sustainable prosecution is another matter which will be for the court to decide. But I don't envisage such a response. There have been examples in the past where people have been acquitted. There was a terrible case of two white insurance agents who were charged with having taken out life insurance on a group of Africans and they were charged with having pushed the van over the cliff. This was about two years ago. The judge found the case not proved and they were acquitted. There was extreme indignation but there weren't riots of the kind that you're mentioning. I think the Insurance Company refused to pay out and other measures were taken by the insurers to at least morally acknowledge that something terrible had happened there. So, no, I don't envisage.

POM. This is my last question. You mentioned ubuntu and that spirit of humanity among Africans. I want you to take the question of where have blacks stored all their anger that must be there because of the years of oppression and degradation and take the crime level where the level of crime, of murder, of rape, of child abuse, of assault is not just higher here than in other countries in the world, but astronomically higher than in other countries in the world. How does the concept of ubuntu relate to this ferocious level of violent crime mostly perpetrated black against black?

AS. I'm not sure it's astronomically higher. I think there are many other countries, Brazil coming to mind and other countries in a similar stage of socio-economic development to South Africa with similar disparities, inequalities and so on with similar crime levels, the race question playing some role but not being the decisive element. I think what's happened now is a lot of the crime that impacted was contained in the black ghettos. To the extent that it now affects whites is being projected by the journalists who haven't always done a good job on this, international journalists are now feeling it and they live in the northern suburbs of Johannesburg and they pick up the anxiety and the paranoia and the real fears of the communities there and they have given it enormous projection. The fact that tourists are often involved in downtown Johannesburg and elsewhere also gives it an international kind of projection but this is not something new in South Africa. It was here before I went into exile, it was here when I came back. A question of how to deal with it is a very serious and a difficult one but I don't see it as simply being an expression of black anger. It's to do with unemployment, massively it's to do with lack of sporting, recreational and cultural facilities for young people, particularly young men. There are a whole lot of factors like that that could be injected in any society without the racial cleavage. It's to do with the police force, the corruption in the police force, its alienation from the community which also has to be dealt with.

. There's a lot of black anger, there's a lot of black pain. It's been there, it was there at the time of the elections. It didn't express itself in support for the most chauvinistic positions and parties, for candidates. In the local government elections the same support for the non-racial principles with the principle of non-racial development was there. I think the theme of nation building and the new patriotism can be overplayed but there has been a very big uptake and people like it, they delight in it. It's not simply for the sake of not rocking the boat. People feel more free like that. They enjoy almost the luxury of saying, "I am someone, I'm a South African, I'm part of this new nation that's emerging", and any excuse for a party, a celebration, a dance, it's very much in African culture and it comes out in all sorts of ways.

. If there is a group that articulates a particular form of black consciousness in an aggressive way it's sections of the new entrepreneurial class that are emerging, frequently those who didn't take part in the struggle and who want the state to be aggressively active in redistributing capital and access to capital on a racial basis. They are not the predominant group but they are a potentially powerful group. There is a need for rapid development of black business. We will never have a nation if the whites are managers and blacks are workers. I come from a trade union background, I've always been on the side of the workers. I've always attacked big business. But if you're going to have big business it's got to be non-racial and hopefully the active participation of blacks in the higher reaches of commerce and big business, higher reaches of commerce sounds much nicer than big business, will bring with it a sense of responsibility, social responsibility, will be based to some extent on the capital that the trade union movement will be injecting and will benefit from direct links with the townships and with the unions and with the poor communities. It will be actually financially advantageous to maintain those links rather than to establish a separated or elite class of black business. I see that as inevitable and by conjuncture in the world today maybe even positive as far as South Africa is concerned. But that's not to say that there won't be attempts by sections of that class to manipulate a pure black anger, if you like, for simple material advantage. I don't think it's going to be the dominant trend within that grouping.

POM. So two years since the election, almost to the day, what do you look at as being the biggest achievement of South Africa in those two years?

AS. I think what pleases me the most is seeing institutions of democracy being put in place because these are permanent, they don't depend upon this individual or that individual, and seeing the extent to which they are not simply there but they are functioning, on the whole functioning pretty well and getting a lot of public acceptance across the board. I see that as the biggest achievement.

POM. And your biggest concern?

AS. The biggest concern, it's a very personal one, it's a concern simply in the sense it would be so terrible if it happened, not that I see the signs there and that we have to guard against, is some kind of internal corruption of the liberation movement, of the people there. And I don't see having high office and earning good salaries as corruption. I don't equate the two at all. It's something much more profound than that. People have a right, we don't want people riding around on old bicycles with battered briefcases and looking poor. That's not the way a modern developed society functions. That's not the issue to me. It's a kind of manipulation, it's manipulation on the one hand, capitulation on the other that has happened all over the world, it's profound in countries like Japan and Korea. You find it in France, you find it frequently in the United States at all different levels. You find it in post-colonial Africa. It can happen, it's almost the norm. A certain measure of that I think is inevitable, it will happen, I won't feel in despair, but if it becomes deep and serious we will have lost something that's very, very precious to our country.

. I think the struggle was worth it even if we don't maintain the high level of probity. We've got rid of a very, very evil and cruel system. We've opened up the country, we've created new possibilities, so it's been absolutely worth it but it will be great if we can maintain those qualities in new conditions, not simply hankering after the close camaraderie of the past and forgetting the pain of the past and our own internal divisions and ambitions and all the rest. But it will be terrible if we catapult into a kind of a corruption. I don't see it happening. On the contrary, the signs are good, the signs are positive partly because the institutions are in place, partly because there is an overt attention being given to ethics and principles and morality, partly because of civil society being there watching all the time. I think often the political leaders have actually had a very raw deal and this term 'gravy train' has been terribly over-abused sometimes with certain racist connotations, sometimes with connotations of the cynical people in society who reckon anybody involved in politics, whether they are freedom fighters who spent 27 years in jail or whether they are people who have been running for office all their lives, they're all the same. There's a lot behind that. That doesn't touch me at all. I think by and large parliament is doing a pretty good job, the government's doing a pretty good job so I'm not alarmed or concerned.

POM. Thank you ever so much. I'll have this transcribed.

The O’Malley Archives

01 May 1996: Sachs, Albie