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This resource is hosted by the Nelson Mandela Centre of Memory, 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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

29 Sep 1999: Sachs, Albie

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POM     Albie, I want to go backwards a bit first, just deal with something I've been trying to wriggle with, some conflicting information, and it's CODESA and the collapse in May 1992. The ANC insist that it was in the National Party's interest to engineer its collapse and the NP insist that it was in the ANC's best interest to engineer its collapse. What advantages would accrue to the NP having elections at a later stage in the process rather than at an earlier stage.

AS     Let me say at the beginning this is one of those issues where I have absolutely no doubt whatsoever the ANC wanted the negotiations to go on. I at one stage, actually after those events, suggested at a meeting of the National Executive that we're not getting anywhere and to go through the motions of negotiating when you're not advancing is worse than breaking off negotiations and restarting and I was rejected and I was seen as being the leader of the so-called Peace Group and people saying, well even Albie says we must break off, and I was using my experience as a lawyer: there are times when you negotiate, you get nowhere and you say see you in court, and then you actually settle. The majority of the leadership said, no, we've got to keep things going if at all possible, and that was certainly the subjective mood and it was the way things went. We even made concessions on the eve of the breakdown which involved a whole group of us visiting Mandela in his house, it was very, very inconvenient, to agree to raise him from two thirds majority up to 70% against the repeatedly expressed wish of the membership of the ANC in order to get a settlement and it was very embarrassing because the place was locked up and he was fast asleep. We had to throw stones against the window, I think I've mentioned that, and he came down in his dressing gown looking so superb, even at one in the morning having been woken up, and he said, "I thought my last moment had come." We were really desperately trying to find a way out in order to settle. There was no doubt about it. Then we involved the Patriotic Front and they agreed to that change and we were totally dismayed when we discovered, and we had been promised by the IFP who had just agreed to that settlement, they had told us, the IFP actually suggested, just make that little leap.

POM     Now my understanding of that as reported in Patti Waldmeir's book, she reports on that meeting with Mandela, stone-throwing at the windows and him thinking he was being broken into, and then his coming down and Cyril explaining the situation to him and that his response was, "Break off negotiations."

AS     No.

POM     She specifically says that.

AS     I don't know where she got it from.

POM     In fact I will just fax on to you the copy of the page.

AS     I don't know where she got that idea from.

POM     And then she says that it was left to Cyril to deal with and that what he did without the authority of the ANC Executive was first of all to put forward the proposal that they would accept a 70% threshold for decision making, but that that would be subject to a proviso, the proviso being that if there were not a constitution in place within six months then the constitution would be put to the people and 51% would decide, it would be a simple majority, in a referendum would decide on what constitution they wanted and that the NP perceived that as a trap, in other words that all the ANC had to do in a Constituent Assembly was do nothing for six months, reject everything and then they simply would go to the people and get the constitution they wanted.

AS     I don't know. I do remember at some stage that idea of a referendum as a kind of a leverage to force, speed up the pace of negotiations, what was there, but I don't remember it being a formal part of –

POM     No, this is spontaneous on Cyril's part, that she suggests that Mandela had said break off the negotiations, or not break them, stop them, and it was left to Cyril's imagination to figure out how to do it by saving face.

AS     No that is totally inappropriate and doesn't correspond to the understanding at the time. The difficulty for the ANC was that there had been a very firm mandate, because people were tired, we were always giving in. That's the way they saw it, conceding, conceding, conceding. They said 662/3%, thus far and no further. So it was put down as a very rigid thing and there were conference decisions to that effect, or NEC decisions to that effect. Now on the eve of the critical meeting the IFP said to Cyril that if you can (I say the IFP, it wasn't Buthelezi, the two people were Ngubane and they always call him Nkosi somebody, he's dropped out of the picture completely now) and they said to Cyril if only you can agree to raise it up to 70% we're sure the whole deal will go through and that was what prompted the heavy discussion going to Mandela. Mandela couldn't authorise the change, he didn't have authority as President, so it was a question of strategy and the strategy was to try and get the Patriotic Front which was meeting before the negotiations the next morning to see if they would accept it, and that was a broader body than the ANC and wasn't restricted in quite the same way by a specific resolution.

     Whether or not the question of the referendum and so on was put in as a bargaining point I don't know, I don't know what Cyril could have said, but to me it was very clear from the government's position - they didn't want a settlement then. I was completely disheartened by this because I had been pushing very hard for trying to find a solution. If it was a question of 21/3% that was the only gap between getting elections and getting democracy, and these are notional figures anyhow, two thirds, 70%, you're not looking to change the constitution already before you've even drafted it. Then it would be worth it and I felt totally dismayed and I felt betrayed by my eagerness and my enthusiasm and I have no doubt that two factors were responsible. One was strategic and the other was a kind of an internal confusion and impasse inside the NP. The impasse was that it was clear that a certain group were willing to go in for ordinary democracy with ordinary safeguards against abuse of powers and that would have been the group that afterwards emerged as Roelf Meyer and Leon Wessels and Dawie de Villiers, and another group who were insisting on the old Afrikanerbond picture of a consociational type upper house and cabinet and three presidents and so on, and there was no compromise really between the two.

POM     This is the rotating presidency?

AS     Rotating presidency and upper house that could negate the lower house, even although these were not constituted on purely racial or language terms the parties would effectively, as they saw it, have a general black party, a Zulu party and an Afrikaner nationalist party with white support and the three presidents would represent that. We in CODESA 2 had, and I've described this, really marshalled all our resources intellectually and we shot that plan out of the water and I think that left them completely adrift and in all the books that I've seen on this none of them have picked up on that. I was looking at Hassen Ebrahim's book which I think is a wonderful record, but because he just follows what the press was saying to a large extent, to get the dynamic, and then has these great documents at the back, to me that was what I called 'The Battle of Cuito Cuanavale', the crucial battle, the Stalingrad, you can use the Waterloo, you can use any image you like if you want a martial image, where we destroyed the whole scheme of the NP to have a form of consociationalism through parties that would give them eternal power even if it was just a blocking power.

POM     So in effect they had gone along with the idea at that point of an elected Constituent Assembly to write the constitution but they had added on the rider that there would be an upper house appointed, they would have a veto power, effectively a veto power over the constitution written by the majority.

AS     They hadn't even accepted the Constituent Assembly at that stage.

POM     An elected one?

AS     An elected one. The idea that they had was we negotiate the settlement and put it to a referendum afterwards for legitimation. So they were against the two stage process and the principles but we were beginning to now get closer to the idea of an Assembly with principles. I forget the exact phasing of all that, we got somewhere in the principles. But they were very insistent on this idea of basically it meant two things: the executive, a consociational executive based on the three leading parties, having to get consensus as a permanent feature, and an upper house representing what they called minority parties that would have equal power. So you would have majority rule but you would have minority rule as well. We really blasted that out of the water. We tore it to shreds, we humiliated the programme and we weren't sparing. I remember even a little note in the press with Delport being very upset by the comment that we made, that not even a first year law student would have accepted their programme. He was very upset by that so I replied and I said, "Well I withdraw what I said, even a first year student might have accepted that but you can't expect the negotiating party to do it." It wasn't, and it's not my style to be sarcastic, but that was really the critical battle of the whole negotiation process. Once they had given up on formal Lijphartian groups being represented, they were willing to do it through parties but they wanted a Lijphart kind of segmented, consociational –

POM     In a sense it's what I've come back to in my final, I use the word 'final', in my final round because to me two things have been the pivotal point from which everything else flowed.

AS     Padraig, can I just add, that was the crisis inside the NP at the time which we weren't fully aware of, we didn't know who the people were and so on but with hindsight it's quite clear and that's when people say that Roelf sold them out, it's because he persuaded them after Boipatong and so on to accept through the Record of Understanding, which is why we've got a constitution now and I think Afrikaners actually did very well out of it and got very solid protections. That's why we've got a good constitution because it really covers everybody. But I think there was another aspect I mentioned to it as well and it came through quite often in NP discussion material. They wanted to get away from what they called uhuru elections where the majority of people would vote on the basis of the ANC brought us freedom and so we vote loyally for them. And the feeling was the longer the gap between the deracialisation of SA and the holding of elections, the more politics would be normalised and the uhuru factor would diminish. I think it was based on a very shallow understanding, their own historical isolation, relying on Saatchi & Saatchi and these few kind of sloganised projections of elections.

POM     But still they had to have an election prior to 1995 when their mandate ran out. It was inconceivable –

AS     Well not really you see. Parliament could have extended their mandate.

POM     That would have created a virtual revolutionary situation.

AS     Not quite you see. If you say there's no point in having another white's only election, we can't, but we're on the verge of getting the negotiated settlement, they would have got international support for that. But the sinister part, and this is the part that really makes me angry, is that it was combined with third force dirty war tactics, the people being chucked off the trains. Some stuff that came out about the CCB afterwards which one could suspect and sense and feel, there were things that – we had lots of ugliness in SA but there were new forms erupting that just weren't authentic and somebody was orchestrating that. I'm not saying that top leadership knew about it and directed it, they certainly did nothing to stop it, they must take responsibility for it. I think, myself, it was part of a strategy and it came out in some documents afterwards that were captured from the CCB when the Goldstone group raided and saying that we must use, I even remember, in order to disrupt the ANC we must use gangsters and homosexuals.

POM     This is in a CCB report which was part of the documents that were seized by Judge Goldstone when he made his raid on the Directorate of Covert Collection. I love the name! What does that mean? I'm seeing him, today is my day of the judges, so I'm seeing him later on this afternoon and going through every reference that De Klerk makes in his autobiography to the Goldstone Commission it's more or less exonerating him from knowing what was going on, and saying it was not until 1994 after they made that raid at the CCB that they uncovered these materials that showed that indeed elements of the army and the security forces were involved but that in his interim report on Boipatong, for example, he had said he had found no evidence of police complicity. De Klerk was using this, saying, "I was acting on the best investigative knowledge available", and that was exonerating the police and exonerating a third force and things like that.

AS     I'm not very concerned about De Klerk's personal position. He can fight his own battles. I wish, I just wish he would secure an honoured position in our history by being more frank and less defensive and accepting at least a moral responsibility for what was happening then, but instead it's always been defensive and a rather legalistic response. I can't believe his only source was the Goldstone Commission. It might have been in relation to particular episodes, he could rely on that as an official investigation, but he must have had his own sources.

POM     He had a host of military intelligence agencies at his disposal.

AS     Of course, and he could say to them, who is throwing these people off the trains? Who are doing these thing? And if he doesn't get satisfactory answers then he can push for it. But I would say a second critical moment in this whole process was the raid by the Goldstone Commission on that office in terms of power and public perceptions. I think it was a critical, it wasn't directly related to negotiations, but –

POM     My corollary to that, if a delayed election worked to the advantage of – or the NP thought that the further on the process there was an election the more they could demystify the ANC and Mandela himself, at the same time you have this – a part out of a report that the then Secretary General, Alfred Nzo, had provided delegates to the first annual conference held in SA in 33 years of a confidential assessment of the shape the ANC was in and he says:

     "We lacked creativity, energy and initiative. We appear very happy to be pigeon-holed within the confines of populist rhetoric and cliché. Attendance at ANC rallies has plummeted. Preparations for rallies are incompetent. Rallies are poorly advertised. Organisation is shoddy and rallies frequently start hours after the time they are supposed to. Recruitment of new members is an ongoing problem. In the first year since it's unbanning the ANC has managed to sign up a mere 200,000 members. Among many veterans of the struggle there is a joke – it had been easier to join the movement when it was banned than when it was legal."

     Then he concluded with saying:

     "Clearly we have under-utilised our full potential to mobilise the millions of our people into effective action", and warned that the ANC itself was in danger of "being removed from the leadership pedestal it now occupies".

     So if the NEC accepted that assessment, it wouldn't say OK let's go for an election, wrap up negotiations and go for the quickest possible elections. This suggests that the ANC was anything but prepared at that point.

AS     Well I don't know what the source of this is, and I'm not going to ask you, but if it came from the other side it's typical of the kind of –

POM     It's Nzo's report.

AS     No, I know, but did you spot it yourself or did somebody give it to you to prove that the ANC didn't want elections?

POM     No I just got a copy of the report that was given to the NEC.

AS     I was at that conference and I think it's marvellous that we had reports like that. The alternative was that kind of bland statement which would have been the death of not only the ANC but of democracy and that was avoided and this was a kind of a wake up call and against complacency. But the ANC was so eager to get to elections, it's partly this was our whole life's dream, it was everything. Secondly, the more the elections were delayed the more disillusion there was amongst the rank and file. They say there you are negotiating with the boere, you're getting nowhere. There was nothing tangible and real and when Chris Hani was killed the only thing that saved the country was fixing a date for elections. That's another corroboration if you want. I remember insisting on that very, very strongly. Unless we had a definite date now, it wasn't being spun out any more, the country was going to disintegrate. Truly, Padraig, I've got no motive for hindsight propaganda or anything but on this it was everything for us and that's why when the elections came and everybody spoke about a miracle, we were so indignant. This wasn't a miracle, this was the product of years of suffering and endeavour and working and it was a fulfilment, it didn't come from nowhere.

POM     I'm going to move sideways because parallel with what I have been doing on this side is that I've been looking for other turning points and you mentioned one that I always thought was a critical turning point and that was the battle at Cuito Cuanavale. I have been talking to or trying to find out what it was about. I've talked with General Viljoen about it and he referred me to go to talk to General Geldenhuys.

AS     Oh you mean the original Cuanavale?

POM     Yes. Do you know anything about that battle? My understanding has been from the sources that I have talked to that it was an air battle and that the Cubans had the most up to date makes and the South Africans were stuck with French Mirages and their own product and they had no access because of the sanctions to replacement parts, so just technologically the Cubans were far superior, that the South Africans had to fly in from a base in Namibia, or South West Africa as it was then called, and they could only attack for six to eight minutes and then had to fly back to refuel. In a sense they lost that battle and it was the first thing they had lost and it led to a reassessment on the military side of what is the military strategy here because without air power, that air superiority, we're never going to be able to advance.

AS     It was a critical battle. I'm not a military person –

POM     But just what you know of it.

AS     I don't like it but I know the way it came through and in a way it's projected by all sides as a victory and maybe those are the best battles, that everybody wins. It seems that the SA troops were cut off at one stage and the most pro-Cuban, MPLA, ANC version is they could have destroyed them and killed thousands, or hundreds, but politically they decided it was better to teach them a lesson but not allow the battle to escalate because it could have resulted in lots of losses, the other side as well, and politically it could have been very bad. That was the time when de-linking was being established, the idea of having a separate strategy for SWA. The ANC was against it, de-linking. We said you can never have freedom in Namibia until you have freedom in SA, but against our position there was a separate freedom in Namibia which actually helped in SA. I think Pretoria's view was if you ended the war in Angola, you gave independence to Namibia, we can consolidate our position in SA and get the kind of constitution that we want, and I think they lost out there. But in terms of the ANC rank and file and so on, Cuito Cuanavale was seen as the first serious bloody nose to white SA troops, their first big defeat, and it was presented as that. I know Ronnie Kasrils went around mobilising people on that basis. If you can see him he can give you information. So when I used it, I used it purely in a symbolical sense.

POM     As a metaphor, yes, sure. Let me get back to the court. How much time do we have?

AS     Make it 20 minutes maximum. I have to be in Potchefstroom to give the Sol Plaatje Memorial Lecture at six o'clock.

POM     How much time do we have left?

AS     Let's try for 20 minutes.

POM     OK. I'll be here till Christmas, could I grab another - ?

AS     Let's try for 20 and I might forget and you can get a bit more than that. But I have an outer limit.

POM     Well as you say when we get there, we get there.

AS     Let's see how we go.

POM     Recently the Minister for Justice, Penuell Maduna, has been rather harsh in his criticisms of the judiciary with regard to both its workload, the number of cases processed, the fact that judges don't appear to work hard enough, that they take long recesses while there are these enormous backlogs, and that there has not been sufficient transformation in the judiciary itself. Two questions: (i) do you think that many of his criticisms are well placed and if so which ones, and (ii) he also made reference to the Constitutional Court and in particular to Judge Goldstone and Kriegler on taking long leaves of absence or being seconded to duty overseas, but aside from that what has the Constitutional Court itself done to become part of the transformation that is now supposed to be accelerated under Mbeki's administration?

AS     Well he could have said we spend too much time being interviewed by foreign social scientists when we should be doing our work, but in fact we can't separate our court from the country's history, from who we are, the meaning that the court has both internally and internationally. I think myself, and I'm not going to speak with any pretended modesty, I think we're a magnificent court. I see it from the inside, we work hard, some work exceptionally hard. There's a brilliance of intellect and a passion and a commitment that I have rarely encountered. It's almost a unique court. It's the court that's coming after apartheid. It's the court that has to implant these values in the country and in a concrete way in relation to laws and presidential action and so on and we're laying the foundations for decades, maybe centuries to come of jurisprudence in a very, very thoughtful, serious way. It's a life experience, it's a professional experience. We have law professors, we have a number of former judges, we have some brilliant advocates, people like myself, jailed, blown up, exiled, others who have been very much part of mainstream life and society, but with this thing in common of a total commitment to the values of the constitution and belief in the bill of rights and so on. In terms of the quantity of work we do, you can't simply identify by the number of cases. The famous US case of Marbury vs. Madison counts as one case. It was a landmark case, it established judicial review and the power of the US Supreme Court to strike down Acts of Congress, it made history. Now we have many cases of that significance and dimension and because they are the foundation stones of the whole new, not only jurisprudence in our country, but political and social order, we are very, very careful. One case where I wrote the judgement I looked at my computer for the last version, it was number 27. We work-shopped it, we discussed it, we revised it, we polished it to get the language and the structure just right. But no doubt we can take on extra work and we've made proposals to the minister about possibly enlarging our jurisdiction to take on further work.

POM     But there is something wrong with the judicial system itself, like the rate of convictions is going down, the number of people being prosecuted – just rape alone between 1996 and 1998 (dates unclear) the number of rapes increased by 160%.

AS     I think first of all we don't have a tradition of careful use of crime statistics, we don't have a good experience. They've always been subordinated to headlines and often they're not very scientifically arranged. What you can't tell is I'm sure there are more reports of rape than there were say ten years ago, many, many more.

POM     There were, yes.

AS     I don't have any doubts about that, but that could mean either that there are more rapes happening or people who before didn't tell, were too scared to tell, are now telling, they're breaking the silence and the figures don't reveal which is the case. I don't wish to comment on the judiciary in genera, I'm not close enough to it, but certainly anything that increases the efficiencies is to be welcomed.

POM     What I would like to talk about for a moment is: what do you think is the greatest challenge the Mbeki administration faces, or the country faces over the next ten years?

AS     To me the two big challenges, they're not fresh, new challenges, it's for the economy to pick up and there's only so much that the government can do. They keep saying rather plaintively, "We've got the fundamentals right, it could have been much worse", but that's not good enough. And everything is in a way being wagered on a kind of growth spurt in a couple of years time and if that happens it's going to carry so much with it, it's confidence, it's money for financing many other projects, for education, for employment and so on. Then clearly the whole crime picture and law enforcement in the broad sense, these two are very much connected, and I would say these are the two major challenges. I would say generally in terms of race relations we've done extraordinarily well, in terms of institution building very well. I'm not saying we've solved the problems but compared to where we were in terms of race relations it's astonishing the difference. As far as institutions are concerned I think we've done extraordinarily well and in terms of a decent society I think we've also done very, very well.

POM     Now I asked you that question because it was the lead up to this question, and that is why did you not say AIDS? 1500 new cases per day, projected death rates that are astronomical, reducing life expectancy by the year 2010 by 15 years. It will completely skew the demographic structure of society, it questions whether you should invest in young people, teaching them skills and educating them if 50% of them are going to be dead within a period of 15 years. Why does AIDS not occupy a – I mean it's a plague, it's not just a disease that's passing through, it's more than an epidemic and yet no-one I have talked to has said the problem is AIDS or else the basis on which our society is built is going to collapse.

AS     I would suspect that AIDS is seen first of all not as a South African problem as such, it's a world problem and it's an African problem so one doesn't, when you ask that question, identify it specifically and I suppose we're just used to answering questions in relation to systems. There has been a significant growth in AIDS awareness in this country, there's no doubt about it. There are little glimmers of optimism and hope in relation to vaccines and things of that kind but I suppose one would also say if we get the economy going, if we get a certain measure of social peace, then we can attend to epidemics like that with a certain measure of consistence.

POM     Let me ask it in terms of rights, that if the situation, and again it's a situation which in fact the country has very limited leeway to significantly control what happens, but it raises issues of privacy and disclosure, just your own views, have you any views on when testing for AIDS or HIV positive should be requested or required and in what circumstances? Should there be changes in the law that says if I'm your doctor and I find that you are HIV positive that I can't even disclose that information to your wife and you're under no obligation to disclose that information to your wife or to any sexual partner you may have? So is there a conflict between individual rights and the national security of the country which in a way AIDS, or the national interest of the country, the larger good, a way of clamping down on this disease? Might some rights have to be curtailed in the cause of a larger right, the right to life?

AS     I don't know. In a way I've deliberately refrained from speculating too much how I would respond as a judge because we might get cases on these things and I like to deal with those issues without my mind having been made up. One of my colleagues is living with AIDS, Edwin Cameron, and this is an issue that he would be very sensitive to. So I follow at a distance some of the public debate. I can see the relatively strong claims for notification for statistical purposes, a very powerful demand to do that. That doesn't identify an individual. And I can see the tension between the different values involved. All I would say is two things are fundamental. Whatever approach is adopted it's got to be a humane one, the humanity and dignity of everybody concerned has got to be your starting off point. Secondly, the community most affected must have a powerful voice in any discussion about all this. I would want to hear from the community living with AIDS their positions, their attitudes. I'm not sure always that certain spokespeople necessarily reflect what the whole community feels on that and I would want to have a proper dialogue, an honest dialogue on these questions. Often you find it's not an either/or situation, that you can achieve one goal, the social goal, by minimising the damage at the other end.

POM     I was at the AIDS conference in Lusaka and one of the factors that emerged, not as the cause, but one of the factors that accelerated the rate of HIV among young girls was female circumcision as part of a rite of passage and often the mutilation that went along with that. Should the state intervene and make laws that essentially say there may be some customs but some customs are leading to the death of the people involved and to the deaths of other people and have to be modified or abandoned. I mean done in consultation with traditional authorities?

AS     Yes, that particular one, I haven't really got much to offer on this. Female circumcision as far as I know hasn't been an issue in SA or hasn't been raised as a major issue. Male circumcision in often very unhygienic circumstances has been an issue. I haven't heard it raised specifically in the AIDS context and that's very much a question for the norms and standards of the community which come through in very different ways. If the state does get involved it should be as an absolute last resort, it should be very much a question of the conscience, the attitudes, the role that modern medicine plays. You've got black doctors from the same community insisting on hygienic conditions and so on. That's about all that I can say on that.

POM     Do you expect cases involving AIDS to come regarding the rights of privacy, disclosure?

AS     It's possible. The only case we've had so far that's had a constitutional dimension is the right of people in prison living with AIDS to get special medical care and that went off on a basis that in the absence of proof by the state and the prison authorities about how enormously expensive it would be, as prisoners they are under the care of the state, they have a right to costly treatment.

POM     To costly treatment?

AS     Even to costly treatment, yes. That's the only case, it hasn't reached our court.

POM     But it's in the pipeline?

AS     No, not as far as I know.

POM     Just talking about the prisons for a moment, 34% of people in jail are prisoners awaiting trial yet the constitution provides for the right to a speedy trial. On the other hand between now and the year 2001 there has only been provision made for 14,000 new prison beds, the prison population is already almost 50% above capacity and by 2001 it will be over 100% above capacity. Is overcrowding in prisons, do people have a right not to be imprisoned in circumstances where they are literally overcrowded?

AS     I wouldn't like to speculate on how the court might decide. What is clear is –

POM     But is it an issue?

AS     It hasn't been raised yet as an issue that I'm aware of. What is clear is there's massive overcrowding, all the reports make that out. Whether that gives rise to unconstitutionality I would rather leave open as far as I'm concerned.

     But can we move on? I don't think –

POM     Self-determination. I was talking to General Viljoen yesterday and he says that Section 185C of the constitution provides for the right of 'peoples' to self-determination. Does that include the right to territorial self-determination?

AS     As I understood it, I'm not giving a legal opinion now, the means would have to have been found, if it was a right to be effected, of giving meaningful territorial autonomy, not secession in the sense of a completely independent state, but a very high degree of autonomy with establishing some kind of relationship with the rest of SA which I think, if I understand the Freedom Front's position, that's what they're asking for, they're not asking for –

POM     They're not asking for a separate state?

AS     Right.

POM     That is provided for.

AS     It's provided for as a possibility, as a non-excluded possibility but it's subject to a number of conditions and the position as I understand it so far, and this was argued to us at the time of the certification – have you got our certification judgment?

POM     I don't, no.

AS     I wish you luck.

POM     Where can I get that?

AS     It's the first and the second certification case, it's on the web. It's Constitutional Court and certification of the national constitution. In those cases we had to deal with quite a few issues and it would be an interesting part of your documentation and one of them was a claim from, I think, the Conservative Party that there was an international law of right to self-determination of peoples and that our new constitution didn't allow for that, and then we referred to this particular clause and the meaning of the clause and what was implied in it. It's a very technical case but it's a strange part of our rich tapestry.

POM     But it's on the web?

AS     Yes.

POM     In your years here, if you had to pick one case that has been the hallmark, the single most important case that the court has had to make judgment on, what case would that be?

AS     Without doubt it was the first certification of the national constitution for its range, its historical significance, the complexity, the way we worked together as a team, our willingness to stand up to government if you like, and yet the balanced way in which it was done. It was also our longest case. I was in charge of the logistics. I had to deal with the paper flow. I hardly slept, it was very, very exhausting. The other case that had enormous impact and was emotionally very profound of course was the capital punishment case. It was our first case, it resonated. The third case that spontaneously comes to mind is the Rugby Football Union case.

POM     That's Louis Luyt.

AS     Louis Luyt, yes, and it's partly because of the Recusal Application but partly because we had to deal with very grand questions of reviewability of presidential powers and the President being called to give evidence. I would say these are the three that stand out the most in terms of their historical significance, their range and the power of the judgments.

POM     I know you're anxious, right? So I won't keep you any longer.

AS     You can come back to me. I've joked to you about the last time. I'm as involved in this project in a way as you are.

POM     I'll be here until the middle of December.

AS     Then it's a wonderful series of landmarks in my own life to have these transcripts.

POM     When I'm done I've said what I will do is give everybody an unedited copy of all the interviews they did over the years so they can use it to see how their own thoughts evolved, what their recollection of events was, what the reality was and hand them on as part of their heritage to their heirs.

AS     You're right. I'm sorry to cut it short.

POM     Not at all, I understand that everybody is supremely busy.

AS     Yes, despite what Maduna says.

This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. Return to the Nelson Mandela Centre of Memory site.