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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
30 Sep 1999: Kriegler, Johann
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POM. There are a couple of topics I would like to cover, Judge. The first is maybe your comments on the elections of 1999. After all the brouhaha last year over your resignation from the IEC, the issue of bar coding, the issue of registration, in the end how do you think it all worked out? Was it a free and fair election, was it more free than fair or more fair than free?
JK. That's a mouthful but I can deal with it in one short run I think. Obviously I'm reluctant to comment in any way that looks like carping from the sidelines and I have no intention of doing so and I have no need to do so. The electoral exercise was a substantial success. The administration was adequate, the execution was adequate, the result is reliable, it was certainly a fair reflection in the broad sense and I think it was a free election. I don't think there was any suggestion from anybody that there was a material impairment.
POM. Sure, I was just using free and fair as
JK. Excuse my being a pedant but sometimes I am. The voters' roll education exercise was not as good as it could and should have been. The percentage of the electorate registered was not as high as it could and should have been, but what was done was adequate, it was a creditable performance. I would have preferred it to have been done differently, I never made any bones about that. I think the opportunity for training, first for choosing, training, testing a body of people who could run elections in future was lost. I don't think that there has been a material transfer of skills in this exercise. I don't think that the country is very much richer in seasoned electoral administrators than it was before, which I had hoped to see happen.
. The dispute between myself and the government, I wouldn't call it brouhaha but it's a question of terminology or degree perhaps, the government won that battle and they have got themselves a system, I think now, they will have elections run with a major input by government in the form of staffing and a concomitantly less independent input from the Electoral Administrator. It's a matter of opinion. I've made my opinion clear on that and the government disagrees with me. I don't think it's made any material difference to the cost, I mean financial cost. Credibility cost I think it does make a difference, financially I think it's probably cheaper the way we had planned it than the way it was done last time round and will be done in future.
. The next electoral exercise will be a very difficult one. They will have to have a new system of voting for the municipal elections next year. They will need a hybrid of first past the post constituency and proportionality. The legislation has not yet been drafted. I don't think that there is clarity of thinking about the legislation as yet and we're heading for the end of 1999, it's less than a year to go and it's going to be another last minute rush exercise. I think that that's the fate of a young country that has got too many holes in too many dykes and not enough fingers to get into each of them. At this stage there's no reason to think that it's not going to be reasonably successful. It won't be as good as the last time because it won't be as simple as the last time. If you've got a mixed system you will have to do a great deal of explaining to an electorate that is not that sophisticated and that's not going to be easy.
POM. So in your view, if you had to pick one thing perhaps, it would have been the lack of transfer of skills, that the electoral process did not build a skills base.
JK. That's the one that I seem to be emphasising most. It is a very important one but what goes with it is you're transferring skills to people who formed the nucleus of a future electoral task force out there that operates outside the ambit of governmental control, the two go together. It's a transfer of skills to people who could thereafter form the backbone of a permanent electoral reservoir of skills, which we haven't got.
POM. Let me run through very quickly the ground I'm covering so you know how to allocate your own time in terms of responses. I'd like to talk (i) a bit about the judiciary itself, (ii) would be the minimum sentencing guidelines that have been set by the legislation that's up for review this April, (iii) the law and AIDS and I think I have a couple of other questions that relate to that. It has been said to me by many people when I gave them this question that what SA has is a too rights oriented constitution and some of the framers of the constitution, some of the well known names associated with negotiating the constitution now say with hindsight that they may have gone a bit too far in a rights direction and that perhaps they were looking for a perfect constitution for a very imperfect society that was just getting its feet wet in democracy.
JK. I couldn't disagree more, I couldn't disagree more. I don't believe that that is a responsible thought through point of view. To suggest that we cannot afford a society in which rights are respected I think is a disgraceful proposition. I don't think it is true. I think that coming from where we have come and going to where we hopefully will be going, we must have a constitution with a strong justiciable bill of rights. There are many things wrong in our society. I don't know of a single one that is ascribable to something in the constitution. Constitutions don't make societies, societies make constitutions. Societies make constitutions work. The American constitution has been a wonderful framework for a libertarian society to develop but that took a hell of a lot of hard work over 200 years. It's the people who made it into that, it's not the constitution that demanded that.
. The constitution that we have is, of course, in many ways an aspirational one, particularly to the extent that it speaks of socio-economic rights, it expressly doesn't do anything more than introduce parity of entitlement. It's a realistic document in that respect. The constitution is very detailed but that's not the criticism that you're talking about, the criticism that you're talking about is that we have got, for instance, a high rate of crime in the country because the constitution is soft on criminals. That's utter rubbish, it's total nonsense and it's malicious nonsense in the mind of many people who use it. In the case of others it is irresponsible because they speak from ignorance, but they speak with ostensible authority. The crime wave is totally expectable, it was predictable, it was predicted. There is at the moment the bitter aftertaste of the breaking up of an over-rigid, restrictive quasi-fascist society and post-colonial regime on the one hand and a libertarian revolutionary moving on the other that believed, and rightly, that it would achieve its objectives by making government illegitimate. It succeeded: government is illegitimate still in the eyes of many and rates and taxes are not paid and when you drive on the roads in SA nowadays you take your life in your hands because no rules apply to anybody. Me, I'm a victim, I'm even a perpetrator of some of it. It's not because of the constitution, it's because of the society that we are.
POM. I want to relate that maybe to the question of rape. It's being a more highly reported crime than the average but the figures that I have say that between 1996 and 1998 the rate of a conviction for rape is at 16%. (i) Leaving aside the fact of better reporting of rape, what is it in the society itself do you think ?
JK. Padraig, my friend, it's a very complex question and I think that anybody who purports to have a simple answer is a fool or a scoundrel, possibly both. There are many factors in it. Number one, the general spirit of lawlessness of which I have spoken which is a product of a break up of the broken shackles and the people who were busy breaking the shackles that are still out there. There's an enormous pool of unemployed, poor, visionless, hopeless people who don't have a perspective. There are many people out there who are highly frustrated and disappointed because the new Jerusalem has not arrived. We are six years into the new SA and they're still poor and they're still not housed and their children are still not fed and they still can't get proper education. We have a very deep and widespread social malaise, number one, that manifests itself in any number of forms of crime. I would suggest that you also look at the increase in crimes of violence generally with rape and I don't think that the ratio of increase of rapes is higher than in armed robberies or hijackings or other crimes of inter-personal violence. That's number one.
. Number two, we know, I don't think anybody challenges it any more, that rape generically generally is not a sexual crime, it's a crime of violence. Its motivation is not sexual gratification, it is subjugation, it is humiliation, it is exercising the ego, the macho. We do have a society both in terms of black historical, cultural perspectives, and white, of a male domination, of a sexist denial of the equality of women. We do have a tension in our society between traditional values and human rights aspirations of equality of gender. I think, this is largely speculative, but I do think that the frustration of men who are powerless does find itself vent on the weak, on the readily available female in their midst. I think that you cannot have a tradition of urban and peri-urban violence such as we had throughout the mid seventies to mid nineties without having two generations that are lost in the sense of not having known any social structures, any sinews, that family life went to hell for many generations. We wouldn't allow married people to live together and raise their children in a stable nuclear family environment. We had tens of thousands of men living in single hostels and tens of thousands of women living in single sex hostels. We have the bitter fruits of that today which is shown in the high incidence of rape but in the high incidence and rapid spread of AIDS, because sexual fidelity, something approximating a monogamous relationship, is largely discredited among sub-40s, urban black youngsters and many white urban youngsters. Sub-40s are not all youngsters but you know what I mean.
. Of course in the case of rape, as with other crime, it's not only the socio-economic and political situation that we're dealing with. You have a police force that for 30 years was directed towards maintaining a political structure rather than the legal structure, a police force in which every person of real talent was skimmed off into the Security Police. You had two generations of policemen growing up, detectives who didn't know any other way of investigating a crime and producing a document for putting before the prosecutor than getting somebody and giving them a couple of good clips on the ear until you got yourself a confession or sufficiently incriminating admissions that you could go and find the clues. The old school of real investigation, the system of informers, the system of going and checking out, looking for clues, looking for eye witnesses, looking for real evidence, that was lost in the sixties and seventies and eighties. The police force is under great strain. The weeding out of the politically conservative elements which predominated in the police force has left them with an enormous vacuum in the middle and senior ranks. They had to go and fetch poor old Manny Fivaz somewhere in a dark office in the back, he was the only acceptable face at commissioner's level that they could find. He wasn't a policeman's policeman. He was a nonentity, he doesn't have a team of men who have confidence in him and in whom he has confidence. As a force they are discredited and dispirited, ill-trained. What did we say this week, what percentage of them are functionally illiterate?
POM. 20%. One in four.
JK. I would think it's higher than that. I don't think that 50% of the constables in the country could write out a statement in their mother tongue, let alone in English. What percentage of policemen have got drivers' licences? Now they're under-funded, they're demoralised, crime does get out of hand, crime does get badly investigated. The courts are functioning very, very inefficiently. They are functioning inefficiently because the prosecution is dependent upon the investigation and the investigation is bad and the prosecution is frustrated and the prosecution is also inexperienced because you've got the same thing there, that people who have any skills have left and gone into private practice.
POM. Convictions in the last two years have dropped by 40%.
JK. I'm not sure that I accept those figures. I think it's probably worse than that. You know that there are different kinds of liars and statisticians are but one manifestation.
POM. I know it well.
JK. Right! The criminal justice system in its investigation, prosecution and correction, they're an integrated threesome, the system is under great stress at the moment and it's not coping and I don't think that the minister has gone about it the right way at the moment. I think he'll get around to it. At this stage he's band-standing and looking busy and looking good. I think kicking judges and magistrates in the teeth is not the best way of getting going and getting glib, facile statistical comparisons of horses and camels and ants and elephants doesn't advance the cause of it, but he'll get around to it. Why rape seems on the increase and why prosecutions are on the decrease? That's the picture as I see it.
POM. I think in most of the cases statistics indicate that in cases of rape the rape victim knows who the rapist is.
JK. Oh yes.
POM. And there was some shocking figure that I think in 1997 that for every woman who was raped once, she was raped three times, about one third.
JK. Yes, I couldn't argue with that.
POM. One third of the crime takes place in the home. Is this a reflection of the ?
JK. Of a breakdown in the moral and social fibre of community life? You wouldn't walk but you would drive through Hillbrow and Berea and Yeoville, not to talk of Alexandra or some of the rougher parts of Soweto. There's no community system there and there's no community spirit there and there's no system of - we've known one another and that's the school where we went to and Johnny the cop was at school with us and he knows us, so-and-so is the bad egg. None of that exists and it's a volatile, mobile and generally unemployed community which is very difficult to police. I think that the police are trying valiantly but failing and I don't think we're going to get it right in a hurry.
POM. How about sentencing?
JK. Let's go the other way round.
POM. When I look at sentencing here, and sometimes I must say I am truly amazed when I see somebody convicted of five murders, execution style, for a car and they are sentenced to 30 years in jail. That's kind of six years per murder. In the USA there would be life for rape, life for even second degree murder, first degree murder would be life without any possibility of parole. To compare the two sets of sentencing, their average, to give a sentence of five or six years for rape in the States would engender a public outcry of massive proportions.
JK. Why compare with the States? Why not compare with India or with Tanzania or Zimbabwe?
POM. I'm just familiar with the figures there, that's probably why.
JK. I think if you go to a highly disciplined organised structured society you will find the deviations from the norm are punished very much more severely. The USA, Canada, Britain, Germany, France, rape there is a horrible thought. Here it's a common practice. The further the deviation from the norm the higher the sanction imposed by society. That after all is why you sentence people. Ultimately it's for society to say we don't take that kind of conduct where we come from, people don't behave like that around here. But if the majority of people behave like that around here it's very difficult to be very severe in sentencing. But that's a simple quick answer. Let's give it in a little more depth.
. Padraig, I think you're asking the question from a different point of view, and I must clarify one thing. Severity of sentence is a factor in deterrence, but it's only a factor and it's a relatively unimportant factor. All other things being equal, severity of sentence is an important factor but the most important factor ordinarily in the criminal justice system is the reasonable certainty of being caught and punished. That's the strongest deterrent. The fact that one in 100,000 is going to be caught for speeding and is going to be sentenced to a very, very heavy fine, is no deterrent because society thinks that the sentence is out of proportion with the crime and it has a moral sympathy with the criminal. If you want to ensure that people stay within the speed limit you must make pretty damn certain that if they exceed the speed limit sooner rather than later they're going to get caught and they're going to be significantly penalised and that goes for all crime.
POM. Again to use statistics, I think if I were contemplating a crime of any description in this country, just using generic if I were to commit a crime, my chances of ending up in jail are five in a hundred.
JK. I think that that's unduly pessimistic as seen from the criminal's point of view. Where do you get that one from?
POM. That was from a publication called Unshackling Crime that was issued by the SAIRR.
JK. Well are you saying being convicted?
POM. If you commit a crime the chances of being caught, prosecuted, convicted, sentenced and actually going to jail is five in a hundred.
JK. I would have thought it was less than that but I accept that figure.
POM. You would have thought that was even lower?
JK. I would have thought it was even lower because of the inability of the system, the criminal justice system at the moment, to get through its work. What happens is time without number the case gets postponed and gets postponed and then it gets withdrawn and they lose interest if it's anything but the most serious case, and even if it's a serious one they don't find the guy again, he just disappears and the docket gathers dust and it goes away. Let's take it as a one in twenty chance of being caught, that's not a deterrent.
POM. Crime pays.
JK. Of course crime pays, and what's more, if you are the kind of person who is involved in crime you take much bigger risks than the one in twenty chance of being caught, you live a life of violence, you live a life of lawlessness, you live a life of cruelty and ruthlessness. In any event the chances of being caught by a cop and being put in prison, that's one of the better things that can happen to you if you live in that kind of society where dog eats dog and might is right. So the criminal sanction is relatively unimportant, not only because of its minuscule percentage but because of what it actually entails and the reality of life for those people. If you have lived in a slum all your life, so what does it mean so bad for you to go to prison?
POM. I was just going to ask you that. Are some people so poorly off that given the choice of having to try on a day to day basis to eke out a living under the most horrible circumstances, that it is a better and a more rational choice to commit a crime and get yourself into prison where you get three meals a day, a roof over your head at night?
JK. And a fair supply of dagga and even into sodomy, a ready supply of youngsters being brought into prison. It's a sordid way of looking at it but it's a realistic way. So you're not going to get the AIDS, you're not going to get the rape, you're not going to get the violent crime picture in order for a generation and it will require a great deal of political will to put money, to put talent, to put determination over time into getting the three components of the system working. And those are only the three immediate ones. The education system is obviously of great importance in this. You can't have a proper reformation effort with people who are ineducable. All you do by putting somebody in prison is you temporarily take him out of crime, he's going to go back to it when he comes out because he's got nothing else that he can do.
POM. Is this like a social system whose components are so inter-linked that unless you can address all the components simultaneously and uplift them simultaneously, that the problem will get bogged down at two of the components that you failed to address in the success of components and there's a backlog. It's like driving on a highway, when the traffic flows and then suddenly you've a bottleneck and you're stuck for three hours, here you're stuck for three generations.
JK. Yes and one person that drives irresponsibly drives into the back of somebody else and stops everybody, then other people have collisions, it's a self-multiplication. I always have the image of lobsters in a bucket, none of them can get over the top because they keep pulling one another down faster than they can get over the edge. Each of the problems prevents the other from each of the efforts prevents the others from succeeding but ultimately it's not that terrible. If you can get the place paying its way, if there's a living wage for an honest day's work that is commensurate with the effort that goes into it, that's an enormous step up for starters. If it's worth it, just, to go to work every day into your routine, dull, rut-like existence, but you will be able to educate your children and put a roof over their heads and they will be better off and if you work at this for 30 years you will be able to retire in decency and there's a reasonable certainty of this and you will be able to house them and clothe them and feed them and they will get reasonable medical treatment
POM. That kind of ethic doesn't, at least to my observation, doesn't exist.
JK. No, but it doesn't exist because of poverty. You know what made the US the successful melting pot was economic success. It was jobs for all, it's a chicken in every pot. Why is there the upward mobility? Not because it's such a fabulous constitution or such a great people, it's because there are jobs for everybody, it's because it's a very well endowed country. How did it work in the 19th century? Why did the Irish go there and then the Italians and the Germans and the Swedes? Because there was a living, there was a decent living, you worked your guts out, you could put your kids through law school. Maybe you worked in the garment industry, in a sweat shop, but your kid went to school and the next generation would be better.
POM. Do you think that part of the problem here, say for the example the Irish who went to the US and for the first 50 years of their existence there they lived in conditions of
JK. Abject squalor. But still it was better than they had had.
POM. They did invest in their families, getting your kid to school became that's how the kids made it. Do people here, what we would be talking about is do the majority of black people think in that way or is the family structure already so dysfunctional that there is not a prevalence of that kind of thinking? I won't say that it doesn't exist.
JK. The norm is still the 'good', the Christian church has a tremendous influence in this country, it really does. You have a crowd of total political frauds who get into parliament on one issue only and that is the cross. ACDP is a nothing, it has no political programme whatsoever, it only gets there on the magic of Christ and nothing else. By that I mean the perceived magic of Christ, not the real magic of Christ. I'm not that much of a heathen. If you go to Soweto, even in the very poor areas, even in Alexandra, the basic folks are decent folk, they want to work, they want to make a living, they want to feed and educate their kids and that's not just blind idealism. I got around a lot during the electoral time. Joe Soap and John and Joe Doe, even though they're poor they're the same, they want to be able to have dignity. And you don't have dignity in the current set up. The major source of prey for the criminal classes remains the black lower middle class. That's the flock on which they live. I don't know if you ever saw the movie called The Magnificent Seven? There was a lovely interlude in that between the good guy and the bad guy and the bad guy saying to the good guy, "You're upsetting the system that the Lord introduced, there are wolves and sheep", and these people are the sheep.
POM. I want you to relate what you said to AIDS. Everybody I've interviewed, I'm very interested in AIDS and a Public Policy Journal is part of my duties at the university and I became interested in AIDS in the mid-eighties and have published a couple of issues on AIDS in the US and I'm now devoting a special issue to AIDS in sub-Saharan Africa.
JK. I can't talk to you with any kind of claim to any kind of knowledge on it.
POM. I'm not looking for knowledge, I'm looking for it in regard to rights: should testing be made compulsory? This is not a disease, this is past the point of being an epidemic, this is a plague.
JK. Stop talking to me in first world terms. Making a law does not solve any problems. You've got to enforce the damn thing. Making testing compulsory, what do you do if people don't come to be tested? How do you go about enforcing this? Where do you find the money to do it? What do you do if you do find them positive? Where do you put them? How do you house them, how do you treat them? I think it's a more bottomless problem than at a policy level. It's an apocalyptic thing. I don't want to talk about it because I don't know of anything that you and I can devise that can scratch the surface of it. I do know that when my son was still working in KZN as a doctor the rate of sexually active women testing positive over a period of four years doubled each year in a remote rural area where you would think that the incidence would be lower than in the peri-urban areas, but their husbands came back every weekend from the metropolitan area around Durban, Maritzburg and they came back with everything that they had picked up from the whores during the week. I don't know what the incidence is today in this country and I don't think anybody knows.
POM. It's generally agreed that the rate of infection is increasing the fastest of any country in the world.
JK. Oh yes, no doubt, no doubt about it.
POM. It's generally agreed that if left unchecked
JK. And generally agreed that we're doing nothing about it.
POM. And if it not checked that the life expectancy will drop into the mid-40s by the year 2010, skew the entire demographic, social and economic base.
JK. It isn't as bad as that, it isn't as bad as all that. If you were to say this in Japan you would be looking at total disaster. I think we come from such a poor demographic profile anyway - it's very, very serious but it's not apocalyptic in the true sense of the word. We don't have a prospect in the year 2010 of a strong vibrant educated workforce maintaining an ever-increasing group of retirees. It's not SA, we haven't got that. What's the life expectancy of the average urban black today in this country? Sixty? Fifty-seven, sixty? It's not that terrible to come back to 40 from there, and who are we seeing as the fatalities? Are we talking about the professional classes, the skilled workers or are we talking about the helots? I don't know. I strongly suspect that the government isn't as agitated about this as I would have liked them to have been just as a humanist, because they've taken a realistic view that there's nothing they can do about it and it will just have to take its course.
POM. They make the gestures. I say this not trying to be cynical, but almost if I am a policy maker and I saw we've a 40% rate or whatever of unemployment, unemployed and under-employed, and there's no prospect on the horizon of the job base increasing, in fact it's diminishing every year, and the highest proportion of AIDS occurs among the poorer communities
JK. And in the lower age group.
POM. And in the lower age groups too.
JK. The job-seeker age group.
POM. Yes, so perhaps if an apocalyptic disease takes some of them out it might even help economic growth rather than hinder it.
JK. I've come to the conclusion that that must be the thinking, but I don't like saying it to anybody. But we're not doing anything.
POM. There was this theme that came out of the Lusaka Conference where 42 nations supposedly sent representatives but there were no heads of state. In fact, ironically and I will just tell the story because it's illustrative, because the strong message out of it was there is on this continent no strong, political leadership perhaps other than Uganda with Museveni who now has ordered the arrest of all gays and homosexuals, but that there was no political will. Chiluba was supposed to open the conference and he never turned up but on the day the conference opened he went to the airport to receive the remains of his Minister for Local Government and one of the people tipped to succeed him, a young man of 49, and when the coffin arrived he cancelled all the military ceremonies and had him whisked off to his home area to be buried in a quiet ceremony. It didn't take two and two to figure out that this person died of AIDS and when we came back to SA I enquired from a source in the Morningside Clinic where he had been and found out that indeed he had died of AIDS. Now Chiluba could have gone to that conference and opened it by saying one of my closest friends, a minister
JK. But the political will is not there. There is of course, you would pick this up better than I have, there is a tremendous groundswell of resistance against talking about AIDS.
POM. That's right.
JK. It's a white man's scare, it's a new gimmick, it's a disease that only black people and homosexuals get, those that society looks down upon and the power wielders regard as an underclass. I can't understand that thinking but a recent conference here in Johannesburg where the Department of Health had the school principals and school inspectors from Soweto school districts who walked out en masse because this was far too explicit and it was suggesting that normal intercourse was something bad or reprehensible.
POM. This is a sexual society, or sexually active society that doesn't want to talk about sex. It's dichotomy.
JK. Certainly.
POM. In Ireland you couldn't talk about sex but you couldn't have it either!
JK. So it made sense.
POM. There was a certain consistency to the damn thing.
JK. But it's part of the instant gratification or the best of both worlds, at the same time you want complete sexual freedom but you don't want to talk about the implications or the societal price or the personal price. I've talked and I've said what I want to say about AIDS. I get a black gloom about me that I don't want to talk about because it's irrational.
POM. The black gloom is out there with whoever I talk to, so you're part of the mainstream on this occasion.
JK. I don't know if that's a consolation.
POM. Looking at the court, when I came here just after Maduna began his criticisms of the judicial system in general or in particular of the Constitutional Court and its workload and people who had lots of time to take off and get seconded for a couple of years to go here and there when there was all this back-load of cases, do you think the underlying theme there was (i) you're an easy target, (ii) that it is another salvo that the Mbeki administration is committed to in accelerated rate of transformation and it doesn't see that accelerated rate of transformation taking place in the judicial system which is still composed of middle aged white men, and even transformation here in the Court itself?
JK. Let me give you a construct which I don't personally subscribe to but which is a highly arguable one. It's not white middle aged, it's the Constitutional Court as an institution whatever its composition and whatever the colour or gender of its incumbents. It is a counterweight to the executive power and for that reason is to be cut down at the knees, or certainly at least demoralised, degraded or made more vulnerable to future pressure.
POM. Or less dignified in the eyes of the public.
JK. Less resilient, less resistant, because after all the Constitutional Court is the one unique new institution that can act as a brake on government. That construct I have heard. I don't share it. I'm not an adherent of the conspiracy theory of history, a much stronger supporter of the cock-up theory. I don't think my friend Penuell has really thought this thing through yet. He's going at what he thinks are soft targets. He had talked to certain people in certain positions who were complaining about under-funding of other courts, he saw the budget for the Constitutional Court and he went off half-cocked, he just really didn't think about it and I don't think myself it will last long as a serious policy issue. I think it was a populist gesture to make.
. The suggestion that the workload of this court, that we're lazy, the fact of the matter is that there is not one single judgment of this court outstanding that does not come from this very last term of this court. There is no outstanding judgment waiting. If you want a date in this court on the ordinary routine you can get it within three months, that's the minimum it can be for the requisite pre-exchange of documents, written argument and the like. We could, if it weren't that counsel had to prepare the case and we had to study the record, we could put cases on the role in two months and during the first half of this year when the electoral cases had to be dealt with as a matter of urgency and had to be dealt with not only in terms of date but in terms of resolution, this court dealt with every single one of those cases chop, chop, chop. We're not behind, we're not slow. The input to this court has slowed down, and thank God it has, but it has slowed down because of the change from the interim constitution to the final constitution. The High Court and the Supreme Court of Appeal now have constitutional jurisdiction so cases which would have come to us directly are now still working their way through that system. They'll get here, it's just a temporary slowing down. There'll be a rapid acceleration in the near future and I don't know how this court's going to cope because I must tell you I have not worked harder in my life than I've worked here. It is hard work. We're starting a jurisprudence from scratch. Those cases, normal SA Law Reports cases, normal US, Canadian, British, Irish cases, we work on precedent. If you know your case law most of the work is done for you because these things have been digested in various forms in the past over centuries. All you need is to say, well it's a little different from that case and a little similar to that one and that's where it fits. It's a matter of taxonomy, identify the facts, identify the pigeonhole in which those facts fit and look at the label on that pigeonhole and there it is, that's your judgment.
. I've served in other courts, I've served in the Supreme Court of Appeal, I know what it's like, but here it's different because here there aren't precedents. You've got the Americans and the Canadians and the Germans and the Indians, all with constitutions and all with bills of rights all generally similar and here we've got to start from scratch because those societies are different, their laws are different, their traditions are different, their cultures are different, their constitutions are different. We've got to do a hell of a lot of enormously trying comparative research. You go and look at our library downstairs, it's unique in this country because we have all of the comparative materials from Western Europe, North America, India, Australasia, Constitutional Court stuff, human rights law, it's very difficult stuff, and Penuell comes up with a facile, rubbish proposition that we deal with X cases whereas another court deals with 20X. Cases aren't cases, it's what their content is. Fifty/fifty, rabbit and horse pie, one rabbit, one horse. It doesn't work that way.
. The one case we did this year that the minister knows about full well, the President and Louis Luyt, that case involved me working November, December, January solidly every single night to get on top of the facts of that case. Every single night, it was 8000 pages of material eventually. I've never worked harder on any single case in my life. I think we were in court for 13 days on that case with the two preliminary hearings included. The judgment in the court below alone was over 1100, close on 1200 pages, the judgment. I've never seen a judgment approximating that in any court anywhere in the world. Then Mr Maduna says we're idle.
. I take my first long leave in 16 years on the bench, I'm entitled to a sabbatical, I've never taken one before. I ran his effing elections the last time I was due for long leave and the previous time I had to go to the Supreme Court of Appeal. I haven't had any before. I'm on long leave, I go to East Timor to go and represent my country in an electoral thing instead of sitting on my bum doing nothing at home and he snipes at me behind my back. If I wasn't so amused about it I'd get angrier but we're sitting targets.
POM. While the court has been in existence, during the Mandela years, what have been the two or three most important landmark decisions it has taken that are establishing benchmarks?
JK. No doubt, easy to identify. The two certification judgments which eventually formed one composite in the extremely difficult, extremely responsible, extremely sensitive job to certify the constitution, where we had to stand and confront the electorate. We had to confront the legislature and say, no this can't be. It was very difficult jurisprudentially, it was very difficult politically, it was factually exceedingly difficult. It was a very difficult case, number one.
. Number two, the death penalty case which was the first highly emotive case we dealt with. It had a mountain of material that we had wade through, it was jurisprudentially very difficult. That was the second.
. The third was this one of Luyt and the President which has at least six distinct areas of constitutional law that are so complex that people can write dozens of LLD theses on the topic.
Ø. Number one - when can a court review the exercise by the President of a constitutional discretion? When, in what circumstances, on what criteria, in what manner? Volumes have been written on the topic.
Ø. Number two how do you deal with the exercise by the President of the power to appoint a Commission of Enquiry? Does it have to be into a matter of public concern or not and, if so, what is a matter of public concern and who decides whether a particular matter is or isn't? What is the court's power?
Ø. The issue of the court ordering the head of state to come to court to give evidence - or to give evidence, let alone coming to court. The issue of a court ordering the head of the executive, not the head of state, this is a different concept now, to give evidence. Now you get separation of powers issues.
Ø. To what extent is the court empowered to interfere to give orders to the executive with regard to the exercise of its respective powers? If you do decide that you have to interfere, how do you do it, subject to what constraints, in what circumstances, subject to what safeguards?
Ø. How do you recognise and acknowledge and protect the dignity of the office of the head of state notwithstanding the obligation that justice must be done and those who can contribute to its resolution are obliged to co-operate. You've got a tension between the interests of the judiciary and the interests of the Executive. How do you balance them?
Ø. In what circumstances are judges obliged to recuse themselves by virtue of perceived bias. What is the influence of former political association with the liability to be asked to recuse yourself in a case involving not a political issue but the state in which a political party is the majority party?
Ø. What is a constitutional issue and what isn't a constitutional issue within the framework of our constitution? Is the exercise by the President of his powers that are given to him by the constitution a constitutional issue or is it an ordinary legal issue?
. Each one of these is an issue of such complexity that the mind just boggles. I shudder to think that we would have to go through another case like that within the next year. Those are the three most difficult cases.
POM. Just finally, do you think democracy has been consolidated in the country now with the second successful election behind it, the institutions of government in place and the major legislative framework established, or do you think there are still danger signs of authoritarianism, that the government's desire to accelerate the rate of transformation is moving it slowly in the direction of tinkering with the outer edges of democracy especially in the absence of any effective, of really any opposition in parliament at all, but in a sense parliament is marginalised in this session? It has little to do since most of the major laws have been passed in the last (five years) all that has to be done is implement it.
JK. I can't give you a one or two dimensional answer to that. I don't think that democracy is ever safe in any society. I think that it's a cliché but it's true that the price of freedom is eternal vigilance. There will always be a tendency, homo sapiens being the animal that he and she is/are, for power to be concentrated in the hands of the few. I don't think that this country is any better than any other. I think that we come from a background of very limited experience of true representative democracy. We've got a long way to go, we've got a very steep learning curve. I do not believe that there is a consistent policy on the part of government to erode the constitution but that the temptation is always there. The constitution is largely a brake on government. The need for redistribution, the need for equality rather than liberty is a tension that we live with and we will live with for a long time. I think that the constitution is up to the job. I think this court is up to the job and I think the longer we go, every election we go through, every court case we have that is dealt with dispassionately, professionally and is accepted by the government and others, we grow, we develop muscle as we go, we develop democratic muscle, but we've got a long way to go and I don't believe that any politician, I don't believe that any human being given the opportunity to wield power, will ever be comfortable with restraints on that power and we will just have to live with them.
POM. Just finally, and this is my own observation, I've asked everyone to give me an interpretation of the results of the last election, why the ANC did so well and why other parties did so poorly and people have come up with a variety of explanations. But I've been struck by the fact that none of them have simply said one word, 'race', that if you cross correlate voting by race with the party, the correlation of ANC vote and Africans is almost perfect and if you correlate support for white parties with the white population the correlation, while not quite as high, is sufficiently high to say people just voted on race lines and that they will continue to do so for some time. Now to see an African who may be a little bit disillusioned or even very disillusioned with the ANC turn around and vote for the New National Party or the Democratic Party, parties they associate with having oppressed them for 50 years, they're just not going to do it. I'm looking for a comment I suppose on your part.
JK. You have said it. I think that there is a great deal of truth in it. I think it's an over-simplification. I do think that the basic voting pattern in this country is still ethno-centric, the basic pattern. I think that the basic knee jerk response of most South Africans is racial. I think that Mbeki's response to me when I said I don't like working for a boss who wants all of the power, he says, "You're a whitey. You don't understand because you're a whitey." It's a knee jerk response, the race card is the easy card to play and I think it's the instinctive card that one plays and I think it is more likely to be played by people with that sense of resentment and disentitlement that they grew up with, it's understandable. I think that there are substantial numbers of whites who do support the ANC, very many more percentagewise than there are Africans who support either of the two traditionally white parties. I think that the percentage of whites that voted ANC is higher than the other way round and I think that's understandable not only because they are necessarily ideologically committed to this redistribution philosophy but because it's nice to be part of the majority, it's not comfortable to be out there as the minority unless you get used to it and eventually, like myself, you're uncomfortable anywhere else.
POM. Yesterday I was talking with General Viljoen who admitted quite openly that his party had failed miserably, took full responsibility for it, but part of his explanation was that there were many Afrikaners who besides seeing that a volkstaat was not delivered, i.e. the party hadn't delivered
JK. Nor deliverable.
POM. Nor deliverable, perhaps on reflection said we would prefer to vote for a party that is a stronger party and can provide more opposition to the ANC than to be part of a party that is truly marginal and has no influence at all. So it's like if you're not going to vote for the winner you vote for the person who's going to be
JK. I don't necessarily agree with his analysis of the reasons for the failure of his party and I think you may get a materially different view from Dr Mulder.
POM. Dr Mulder, I would contact where?
JK. He's the deputy leader of the party. Corné?
POM. Oh yes, sure. What do you think? You can't, it's political?
JK. I would prefer not to express any view on that, quite apart from the fact that I think it's a tricky one. They're very small, they're very close, I think they ran a very bad campaign, I think they ran a very incompetent campaign, but I also think it's very difficult because they're all of them lost souls. They believed their own propaganda.
POM. But do you think that, I suppose part of what General Viljoen was saying is that throughout at least Mandela's presidency he always was able to see Mandela who was always very accommodating, the notion that certainly Afrikaner culture interests and the like, provision would be made for their protection and that the question of a volkstaat, if they put forward proposals, would be an autonomous part of SA, not an independent state or secessionist or anything like that, would receive consideration, but that it was really they were just being put off, the ANC had no intention of ever giving serious consideration to it.
JK. That's true.
POM. And that's true. Now my question would be, and this is not you as a judge, it's to you as an Afrikaner, would it be a mistake on the part of the ANC to interpret the election results and the diminution in support for the Freedom Front Party which did represent Afrikaner aspirations, to dismiss Afrikaner nationalism, to dismiss its deep roots, that it too sees it's roots ?
JK. Mistake in what sense? As a danger to it or as a potential resource?
POM. No, as a danger to the stability of the state, i.e. let's say East Timor had overwhelming
JK. I see it differently and I think Mandela saw it differently, I really do. I think that you're talking to me Mbeki-speak. I don't see it that way. I see the denigration and the loss of Afrikaner place in the sun as a loss to the country as a whole because I think my people have a very real contribution to make and have made a very real contribution, much of it bad but much of it good. I think to lose that life force would be a loss. I don't think it's a danger.
POM. Sorry, when I say it's a danger I mean would it be dangerous on the part of the ANC to say, given the resources
JK. I think it's dangerous to the country.
POM. - that we needn't really concern ourselves with the concerns of Afrikaners any longer.
JK. I think that they should concern themselves with the concerns of Afrikaners because everybody is impoverished if a very vibrant, creative minority group is suppressed, oppressed, ignored, denied. But not in the sense of having an armed insurrection or anything like that. That I don't see.
POM. No, I'm saying that the fact that Afrikaner nationalism takes its reference point as suppression by the British.
JK. Well it takes SA as its starting point. Afrikaner nationalism is African. Afrikaner culture is African. It's got a hell of a lot of European bullshit in it but it is basically grown, evolved and rooted here. It has no homeland elsewhere, it has no Israel, it's not a Diaspora, it's where it wants to be.
POM. It's like the Unionists in Northern Ireland, they've got no place, only been there for 400 years.
JK. Exactly. Bloody idiots.
POM. But now that it's been discovered that the Khoisan were the first real human beings, on the theory of who's there first they own everything. It's just a logical extrapolation.
JK. I had a fascinating time in East Timor with a fellow commissioner, a chap by the name of Bradley, Patrick Bradley, Chief Electoral Officer in Northern Ireland for the last 27 years, one very, very shrewd, capable electoral administrator who has been involved in just about every ugly election that the world has seen. We really eventually I think worked very well together although there were obviously tensions because we come from totally different backgrounds, had different agendas. I got on very well with Pat, developed a great deal of respect for him.
POM. I'm consultant to a group, or my university told me I have to go with a group of 50 businessmen, community leaders, academics, politicians who are paying a visit to Belfast at the end of October, so I'll be setting up the political end of the programme for them.
JK. I'll just see if I can give you his postal address.