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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
30 Sep 1999: Goldstone, Richard
POM I wanted to start by asking you with your exposure here as the chairman of the Goldstone Commission and what you uncovered at that time, and then your experience as Chief Prosecutor at The Hague for Bosnia and then for Rwanda, and now you're involvement in Kosovo and learning about or experiencing at first hand what's been going on there, what continues to go on, are there common lessons to be drawn from all these things? What are the lessons of your common experiences regarding man's inhumanity to man and what man is capable of, what ordinary people are capable of doing to each other? What motivates them to that kind of inhumanity who otherwise are ordinary decent human beings?
RG I think there are a number of things. I think firstly there's usually a combination of hate, fear and dehumanising. Fear and hate I think are closely connected. In South Africa, in Bosnia, in Kosovo, in Rwanda, it was the fear of being overwhelmed, physically threatened by the opposition group. Where there's a history of hate and human rights violations as there is in the former Yugoslavia, going back centuries, I think it's become much easier for nationalist leaders bent on using that sort of faith, there's a much more fertile ground available to do that as Milosovic has indicated. I think Rwanda too is an example of hatred going back over certainly the last century, of hatred and fear between Hutu and Tutsi exacerbated by a Belgian colonial policy which used it for the purposes of divide and rule. In SA it was the fear of many whites of being overwhelmed by black hordes. In all of these cases it was coupled with a dehumanising element in the sense of the perpetrators, or the perpetrating class, regarding the victims as lesser people obviously with the bestiality and cruelty that we've seen in these areas and/or not fearing that their very physical safety was threatened by it. I think it's a combination of those things and given those things and given the right history and given the wrong leaders one thing I think that the last 50 or 60 years have taught us is that this sort of thing, as your question correctly suggests, it can happen anywhere.
POM What, for example, and I use Northern Ireland where
RG I've been there since we last met.
POM - the same kind of situation prevailed and still prevails, but that was a conflict that was fought within bounds; certain social mechanisms developed that kept the conflict within bounds, there were certain rules to it.
RG I was going to say one hasn't had that sort of bestiality in Northern Ireland. I'm not in any way defending murder but it's been of a different order, it's been political violence of that sort, it hasn't been the cutting off of limbs and raping of women.
POM No mass executions or anything like that.
RG It's been political violence of a different kind.
POM What is it in the nature of ?
RG It isn't that I've never thought about it, Padraig, but in a way it may support my thesis in the sense that in Ireland what is different is that there isn't that dehumanisation, not to the same extent. Presumably Catholics regard Protestants as being inferior and vice versa but not to that extent. They all would accept, I think, that there are decent people on both sides of the divide. Yet, you know it's an interesting thing, I'm not sure whether, I suppose it is relevant really, I was surprised in Belfast at how I was reminded of SA. I was a guest of Queens where I delivered the annual McDermott Lecture at the Law School and I gave two public lectures and I was approached by a leading young Catholic attorney in Belfast who is acting for the family of Rosemary Nelson and he sought my advice about the police investigation which was announced while I was there into her murder, and coincidentally the senior British police officer who was sent to investigate worked for me at The Hague for nearly two years, Colin Port, but the point of my story has got nothing to do with that or Rosemary Nelson: it was that when I asked the people that I was with, leaders in the community, not arrogant, not in any way I would have thought hostile to Catholics, but when I asked them if they knew this attorney they didn't know of him. I showed them his card and the response from two people was, "Oh he's in such-and-such a street", I've forgotten the name of the street, I've got his card somewhere here, "He's a Catholic attorney." And I said how do you know that? They said that's an area where Catholic attorneys would have their offices and I asked whereabouts it was and they told me what part of town it was but they said, "We don't go there." It really reminded me a little bit of whites in Johannesburg not having gone to Soweto and I was quite shocked at that sort of attitude.
POM The difference between apartheid and segregation in Northern Ireland is that the segregation in Northern Ireland is entirely voluntary.
RG Right, absolutely.
POM But just segregated and there are Catholic areas and Protestant areas.
RG Oh, well, I saw it and, as I say, this was from people who were not rabid nationalists.
POM There are housing estates and on one side of the street they are Catholic and the other side of the street they are Protestant and the children won't cross the street.
POM They stick to their side of the street, saying that if they went over there they would immediately be recognised as being from the other side so that that's one thing the, hopefully, political settlement hasn't dealt with are those kinds of fears. But the conflict has been fought within bounds whereas, say, in Rwanda, say, SA it was fought within different bounds, in the former Yugoslavia within different bounds, they're all getting more Rwanda bounds that went boundless. What is it in the nature, I'll go back to, in the nature what is the difference between a Catholic and Protestant or a white and a black here and Hutu and Tutsi?
RG It's all differences of degree. You're talking about the same disease but obviously circumstances from country to country or situation to situation have those differences. Some are nuanced maybe but they're very real differences. I'm not sure I can add to what I said.
POM OK, let me get to Mr de Klerk and his statements. He says that during 1991 he appointed you, passed the Prevention of Police and Public Violence and Intimidation Act of 1991, and that he appointed you as chairman of the Goldstone Commission. He says: -
"Richard Goldstone was a small dapper man with receding black hair and a lively intelligent expression. Although he was widely respected he also had his detractors. Some of his colleagues criticised him for being over-ambitious. Rumours that he even aspired one day to being appointed to the post of Secretary General of the United Nations, then Boutros Boutros Ghali had had some of his no doubt mischievous colleagues to refer to him behind his back as 'Richard Richard Goldstone'. Nevertheless, he has a well deserved reputation of being a fearless, tenacious and liberal judge. I liked him and developed a healthy respect for his fairness and thoroughness. During the rest of my presidency he played an invaluable role in relentlessly investigating violence and tracking down perpetrators. As a result of his work we were slowly able to escape from the miasma of unfounded allegations, accusations, disinformation, propaganda which had previously shrouded the question of violence. Slowly, piece by piece, the Goldstone Commission began to make sense of the masses of data that he and his investigators collected. He criticised any party or organisation whether it was the security forces, the ANC or the IFP, that he believed was responsible for violence and made useful recommendations regarding remedial actions. I did everything I could to support him in the execution of his difficult task. For me it was of the greatest importance to have a reliable and neutral organisation to whom I could refer the increasing avalanche of accusations and allegations from political parties and from the media regarding the origins of violence."
You would agree that he was completely supportive of your commission's work in every way, did nothing to impede its operations?
RG Subjectively I've got no doubt he believes that. I think objectively there were areas where I think we could have been given additional assistance, but I think there were political constraints. If one looks at his statement in the political context in which he was I've got no doubt, as I say, from a subjective point of view he did that. His government was not keen, for example, that we used foreign assistance and in the beginning that was a difficulty. I think he and his government changed as the transition continued and realised that foreign assistance was very valuable and it became easier and easier. I don't want to sound pettifogging or quibbling but at the time these were fairly important differences. Certainly there was very warm support and especially at the end when I needed additional funding for witness protection, I needed the assistance of the National Intelligence, and his assistance was immediate and very genuine.
Incidentally, it's quite amusing, the 'Richard Richard' story was an invention of the chap from the Mail & Guardian, David Beresford. He concocted that as a sort of humorous thing in one of his satirical columns. As far as I'm aware that's where it began and ended and it had a funny sequel because soon after it was printed he called me about something to do with the commission and I returned his call and he wasn't there and I left a message to say, "Please tell him that Richard Richard called." He so enjoyed that he referred to it in an article which appeared in The Guardian.
POM Of course he had the roots of his beginning as a journalist in Belfast.
This is talking about violence between the IFP and the ANC, or violence in general. He says: -
"The most accurate assessment of the situation is probably the findings of Judge Richard Goldstone. In its second interim report the commission wrote that it had, 'No doubt at all that both ANC and IFP members and supporters had been guilty of many incidents that had resulted in deaths and injuries to large numbers of people. Both organisations had been over-hasty in accusing the other of being the cause of such conduct: each had been tardy especially at the end of the top leadership in making effective and adequate steps to stop the violence by imposing discipline and accountability among its memberships'."
Then later he again quotes from your report on Boipatong where you said that you had not found any evidence of police complicity.
RG That Boipatong report was a provisional report. There was never a full report on Boipatong from the commission.
POM Let me just see what he says here, page 246.
RG What happened immediately after Boipatong, we had a very quick enquiry and then had a full enquiry and never delivered a report because of the criminal trial which was pending and the matter was sub judice.
POM People started being arrested in connection with the incident. He says it's when he says Ramaphosa and Mandela attacked him for being it's a defensive biography.
"Early the next month (that would be in July) the Goldstone Commission reported that no evidence had been submitted to the commission - "
RG That's the point.
POM " - which justified any allegations of direct complicity in or planning of the current violence by the state, any member of the cabinet or any highly placed officer of the SA Police Force."
RG That wasn't the Boipatong report, that was a general report at that time, and it wasn't a finding, it was a statement of fact that no evidence had been submitted.
POM He also says : -
"The international police expert, Dr Waddington of the United Kingdom, who assisted the commission with its investigation, could also find no evidence that the police had been involved in any way in the incident. He was, however, critical of their policing methods and general levels of competence."
Is that statement in general accurate? He's using you at this point to say that he or members of his cabinet or his security forces weren't involved in violence, that the real thrust of the violence was coming from the ANC.
RG No, that was never our report. The first quote you read from the second report is completely out of context. Let me tell you what that report said. It was that at that point we thought it appropriate to set out to the best of our ability, on the information we had at that time, the causes of violence in SA and we set them out, we said, in historical sequence. We started with a history of 350 years of racial discrimination, of racial oppression, of demeaning black people, of apartheid and how that exacerbated it, racial segregation, the use of the police to implement racist laws of apartheid, the education system leading up to the banning of the liberation organisations, the liberation organisations turning to violence, the arrest of leaders, states of emergency, the liberation organisations deciding to use methods of making SA, the black areas of SA, ungovernable, the growth of the UDF, the UDF was a surrogate ANC at that time, and a lot of the violence in the townships, 20,000 people were killed because of violence between IFP and UDF members in the eighties and early nineties. We dealt with that whole thing and what he's quoting is the last part of a litany of causes of violence and incidentally, and it's a story I tell in a book which is going to be published by Yale Press next year, I tell the story apropos of that report, that until then under the law our reports had to be handed to De Klerk and it was up to him in terms of the law whether to make our reports public and, if so, when, and what they used to do, and they have always done in SA, presidents had kept back these reports and either not released them or released them at a time most appropriate politically for releasing the report.
This happened with our second report, it was issued, as I recall, round about lunch time one day with a spin on it that is in his book, that we had found that the cause of violence was the antagonism between the IFP and the ANC, leaving out, as he does here, the other historical reasons which I've mentioned. Mandela came back from abroad that day and addressed a very important ANC meeting that night, I think it was COSATU or a provincial ANC meeting, and he castigated our report in very, very forthright terms. I was beside myself with frustration and anger because I knew he had relied on the spin that the government spin doctor had given on our report which was reported in all the newspapers. The next day Mandela, in his usual inimitable style, called me himself and he said he had called me for two reasons: firstly, he had just read that report and he agreed with almost all of it, he thought it was a very fair objective report, and he phoned to apologise for having relied on press reports and to tell me that he had called a press conference for two hours later that day and did he have my permission to say that he had apologised to me and that I had accepted his apology. Obviously I said yes and he duly held the press conference. So it's a misrepresentation by taking it out of context to say that that was our finding. Clearly that finding is correct, I think subsequent information has justified it, but I think it's very important that it should be seen in context.
POM He talks about the TRC and the Directorate of Covert Operations, that you uncovered documents that indicated that elements of the security forces were involved in illegal activities. He talks about the way, and he says he immediately ordered action to be taken for you to pursue your investigation and pursue it wherever -
RG No, no, he doesn't, he appointed Steyn.
POM He said not only did he do that, he appointed Steyn. He gives the impression that he appointed Steyn concurrently; not only did he rely on you, he also appointed Steyn.
RG No I don't think he says that. Clearly he wouldn't have us investigate the Military Intelligence. I read the passages, I glanced through the book and read the references to me when the book came out but I haven't read the whole book.
POM Do you think that the Steyn Commission was an adequate ?
RG I haven't the foggiest idea, I never knew what they did. I never had any report.
POM He says that the two of you worked in collaboration with each other.
RG No he didn't.
POM That you had no problem.
RG No, no, he didn't say that. You'd better find he appointed one of the members of my staff, Pretorius, to work with Steyn but I was never given any details. It was a bolt out of the blue when the A-team, the 23 senior officers were kicked out. I knew about it when it was made public.
POM "I was shocked and dismayed by Goldstone's statement in November 1992 which indicated that elements in the SA Defence Force might be contravening the direct undertaking that I had given after the Inkatha imbroglio that the security forces would no longer involve themselves in actions in favour of or against political parties. I also did not like the sensational manner in which Goldstone had publicised preliminary findings and untested findings. As the chairman of a Judicial Commission of Enquiry he was supposed to submit his reports to the State President after all the evidence had been properly tested and weighed and not make precipitate and sensational statements to the media. However, in this case he had done so and I had to deal with the situation in such a manner that it would not impact negatively on the legitimate intelligence activities of the SADF.
"The cabinet considered Goldstone's statement at its next meeting on 18 November 1992. It was clear to me that we would have to intervene more directly than ever before to get to the bottom of allegations regarding clandestine activities of the SA Defence Force. Even though Judge Goldstone would continue with his investigation, more was needed. I decided to appoint a trusted member of the SADF to carry out an in depth investigation into all the intelligence activities of the SADF. I chose Lt. Gen. Pierre Steyn, the Chief of Defence Staff. To facilitate his task I placed him in direct immediate command of all the intelligence functions of the SADF. I also ordered him in conjunction with a senior police General to ascertain whether any activities had taken place which might be in contravention of the law or government policy.
"Two days later Judge Goldstone came to see me at the Union Buildings to discuss the matter on which he had publicised his findings and his request for further resources. I told him that we would have to find some way of ensuring that his investigation did not harm the bona fide activities of the security forces. We also discussed the manner in which the commission would in future liase with General Steyn to ensure it received any information that might be relevant to its mandate and offered to make additional resources available as and when required. Judge Goldstone agreed that his commission already had sufficient powers to carry out his mandate."
RG That's correct.
POM But you had no interaction with the Steyn Commission?
RG No, and he doesn't suggest I did.
POM Well what do you call 'liase'?
RG That we would liase if necessary. There was never any liaison. I don't think he says there was. He's mixing up two things, whether we had enough resources had nothing to do with the Military Intelligence.
POM So then you issued a second report in March 1994 just before the elections which detailed or had more details of
RG About police.
POM About the operations of the police at Vlakplaas. Again he says he was shocked, couldn't believe that his orders were not being carried out, that his instructions were not being followed. This is a personal question: do you believe De Klerk in all these things, that when he insists, as he makes almost a book of insisting, that he did not know and members of his Cabinet did not know?
RG Let me say this, I don't know enough, but my own impression at the time was certainly that that was correct. His spontaneous reaction, especially at the end when I gave him the information that we had collected about the activities of the senior police officers, he immediately, without consulting anybody, gave me unlimited resources for witness protection, gave an instruction to National Intelligence that they were to give me every assistance that I needed and they did it. He didn't react in the way I would have thought somebody would have reacted had they known about it. So I accept. Whether he should have known about it is another matter, but my strong impression was that that's a true statement.
POM With regard to Bisho
RG And on the probabilities it must be correct, Padraig. I don't believe he would have been pursuing his policy on the one hand with knowledge that his own security forces were trying to undermine what he was doing every day, when it was against his own interests for those things to have been happening.
POM Why do you think the ANC have simply never accepted that, period? They are dogmatic in their insistence at every level that De Klerk knew.
RG Because I think there's a fiction, a universal fiction that leaders know what is happening whether they do or not. In fact I think some ANC leaders have been embarrassed because they are being asked why they didn't know that certain things were happening that were happening in their government. This is what happens in governments. I think the problems with the Nixons and the Clintons comes when things that they didn't know about embarrass them and they try and cover them up.
POM He makes a reference that Mandela could never understand why a State President with his access to all the resources of state didn't know everything that was going on.
RG Absolutely. I think that's a general belief of the man in the street.
POM When Operation Vula emerged he confronted Mandela with the facts and he said Mandela was completely taken aback and that he didn't know this had been going on so he gently reminded him that sometimes even when you're in charge you don't know what's going on.
RG That's right.
POM But he says, this is when he went before the TRC, he was furious: -
"Regardless of what the security forces were later believed to have done, I certainly did not interpret Botha's words that the State Security Council had issued instructions to security forces to commit atrocities on statements that President Botha had made during a discussion that, 'The third force must be mobile and must have a well trained ability to rout out terrorists, must be prepared to be unpopular and even to be feared and the security forces must co-operate in the establishment of a third force so that the subversive could be engaged by using their own methods'. Botha's words were robust as could be expected from a leader confronted with a bitter revolutionary struggle. However, they could not, in my opinion, in any way be interpreted as authorising security forces to assassinate or murder its opponents."
Would you agree that that statement?
RG About Botha?
POM What Botha said.
RG Really my understanding is that during the Botha period those orders were given, certainly to the knowledge of all the members of the National Security Council.
POM That they were given to?
RG That they were aware that criminal conduct was being conducted.
POM During the Botha years?
POM So anyone who was a member of the well De Klerk was a member of the NSC and he says that
RG That may be. Look, what De Klerk knew before he took over is another matter. I can't believe he didn't know that there was criminality going on in the security forces.
POM So when he says: -
"Archbishop Tutu, close to tears, said that he had been devastated by my failure to accept that the former NP government's policy had given the security forces (that would be his own government) licence to kill. Tutu said he himself had told me about allegations of security force involvement in the Boipatong massacre, forgetting for the moment that I had immediately instructed the Goldstone Commission to investigate such allegations and that it had not been able to find any evidence to support him and that the guilty were apprehended and charged and sentenced."
That's a fair statement?
RG That's correct. Absolutely.
POM On Bisho you found that the responsibility lay both with the ANC and the Ciskei officials but that there was no evidence, again, that the actions of the Ciskei officials, that the Ciskei security forces had been operating on the instructions of
RG There was no suggestion made. The ANC have never suggested that.
POM But again it's part of the pattern that they held them accountable for Bisho, the ANC held them accountable.
RG Well because of the system, not because any orders were given. And certainly we made no finding of equivalence. I was very critical of Kasrils having led innocent protestors into a line of fire that was obviously dangerous and shouldn't have been done. But clearly the report laid the blame very squarely at the feet of the Ciskei forces who opened fire.
POM This is just my last reference to this: -
"For more than a year the ANC and radical newspapers like the Weekly Mail had allegations that a sinister third force within the security forces was responsible for much of the violence that had been plaguing the country. Such accusations had become a refrain of Nelson Mandela in our meetings although when pressed neither he nor the ANC had been able to provide me with any evidence. In its second interim report that it had received no evidence which would suggest that 'there is a third force, i.e. a sinister and secretive organisation orchestrating political violence on a wide front'. They also found that there was no basis to many other allegations by radical newspapers and the ANC of government or security force complicity and violence."
RG What's the question?
POM Is he correct?
RG At the time of the second report obviously that was correct. We later found evidence. The commission ran for three years. When we issued reports after the first six or nine months saying we had no evidence, that's correct, that was the state of our knowledge at that time.
POM But by March 1994?
RG Then we found evidence of a third force, absolutely.
POM Would you call it an organised third force?
RG Absolutely. Vlakplaas was an organised third force. The CCB, part of this operation, was an organised third force.
POM So it didn't stop with De Kock and rogue elements in the security forces who had taken matters into their own hands?
RG It was at a high level, sure. We know that Vlok was party to some of it, the Commissioner of Police, the head of the army, were all involved.
POM And the third official would have been?
RG That had been disbanded some time before.
POM So in a way the higher echelons of the
RG Security forces were aware that these things were going on. I don't think they were directing them. I think they covered, they supported, they were happy but I just don't think
POM I'm trying to get to that fine line, I suppose, between 'I am aware of something going on, I approve of it but I don't direct it.'
RG Isn't that the story of virtually all oppressive dictatorships. It's all just done with nods and winks and need to know and don't tell me and if you get into trouble we'll look after you or we won't look after you, whatever the case may be.
POM So in your view, to make him aware of it, they came across all these
RG No question about it.
POM So De Klerk was being undermined from above or by the parallel power of the security forces?
RG Why parallel? They were inferior powers but they were very senior ones.
POM I mean parallel, I suppose using the term out of the old securocrat system, the National Management Security System which operated within the government and all those people, Van der Merwe and Kat Liebenberg would have been involved in the National Security Management structures.
RG Well, you know the best example, one of the best examples is Van der Merwe applying for amnesty for having given the orders to bomb Khotso House.
POM And getting them, he says, directly from PW Botha. Knowing the way of these bureaucratic systems, knowing how they operate, do you think that when De Klerk became State President and began to de-securitise, get rid of the securocrats, to move them out of the way and order the ?
RG He couldn't, he didn't try and move them out of the way. His version, and I don't believe there's any reason to doubt it, there's a lot of evidence to support it, he called in the 200, or was it the 200 senior police and military officers, and told them that whatever had been going on before it was to stop, that there were negotiations with the ANC, they were no longer the enemy and that all those things had to cease. It's an order that wasn't carried out.
POM That order was not carried out. Well when he says he ordered the dismantling of the National Management Security System he ordered it but there's no evidence that it was ever carried out either.
RG I really don't know and it's not something I've looked into.
POM But it could have existed in clandestine form?
POM It was a country made for clandestine activities at every level. Do you feel that De Klerk has been treated fairly by 'history' to this point?
RG My own view is that in the beginning of the negotiation period De Klerk was assumed to have turned his back on apartheid for moral reasons. I don't believe that ever was true. I think De Klerk decided to bring an end to apartheid and racial oppression because it wasn't working and he saw that this would be the end of the road for his people if it wasn't put a stop to. To an extent I think that De Klerk and Mandela and Tutu were talking at cross purposes and I think when De Klerk apologised for apartheid he was apologising for a policy that didn't work, not for a policy that was morally reprehensible. This is where a lot of the misunderstandings have their origin and I think that's true to this day. I've never heard De Klerk apologise for apartheid for any moral reason.
POM They still stick to separate development was noble in design and it went awry.
RG It didn't work. It was doomed to fail and didn't work. I would be surprised if there's any apology on the basis I'm suggesting in that book.
POM None. He says "I apologise for apartheid", but he doesn't say it was wrong or it was evil.
RG That's the basis on which history is going to judge him.
POM Again, just from what you said, when he decided to negotiate with Mandela do you think that he knew he was beginning to negotiate himself out of power or do you think that he thought he could control it?
RG I've got no doubt he thought he could control it for a hell of a lot longer than he did. I've no doubt that he thought that he would remain, be able to control a gradual process but I don't believe that I mean he's an intelligent man, he must have known that at some point he was going to negotiate himself out of power and this to me is the unusual if not unique feature of De Klerk, that (a) he was prepared to do it and when it became clearer and clearer that his time, his envelope of time wasn't as long as he initially thought it might have been, he didn't stop doing it, he went along. Unlike Gorbachev he didn't turn back when he saw where and how quickly it would lead him. In my book De Klerk is a wonderful example of the power of leadership. He took his people with him through a 180º turn and I wish there were other leaders in the world who would do the same thing.
POM He did it then, yet most Afrikaners now think that he sold them out.
RG That he led them up the garden path.
POM Is that an unfair verdict which a number of books have concluded?
RG No, one understands that. This is the incredible thing that he was able to lead them, he kept his majority, there was a referendum if he was able to share leadership powers and to take his people with him, and I don't believe he regrets it.
POM The ANC insist that De Klerk wanted CODESA to break down, negotiations to stop and the NP insist that the ANC wanted it.
RG I don't think either party wanted to break down in the negotiations. Either party had it easily within their power to have a breakdown. De Klerk could have put an end to the negotiations. He could have said, look, this is wrong, I'm going back on it and I'm going to take the consequences. I've got the armed forces on my side and I'll put it down by force. He could have done it and it would have led to a bloodbath.
POM To go back to what you said about he thought he would be in power, if CODESA 2 had succeeded and there would have been an election within a year or so and he would have been out of power. Was he trying to slow down the process?
RG I don't believe so. I think these things were happening. It was a very complex situation. I just don't believe that either Mandela or De Klerk could control what was happening on the ground. It was impossible, it wasn't within their power. They didn't have that sort of power.
POM So when you say 'on the ground' you mean among the mass of black people?
RG No, amongst different factions and sections. We know the PAC had its own agenda, AZAPO had its agenda, the security police had their agenda, the Military Intelligence had their agenda. I don't think all these things were co-ordinated, not at all. Thank God.
POM So even though he was giving orders they were being relayed and interpreted in different ways or simply being ignored?
RG Simply ignoring them.
POM Mandela had trouble accepting that.
POM On the ANC side
POM - would a delay in an election be more advantageous to them?
RG Why? I just don't accept that, I don't see that at all. I don't believe there was some Machiavellian plotting on either side.
POM The Mandela era, it's greatest accomplishments that stand as benchmarks?
RG What I think is the greatest accomplishment?
POM Yes, cases that had to be decided on.
RG I think the greatest accomplishment of the Mandela government
POM Not the Mandela government, of the Constitutional Court.
RG Oh of the court. I think the greatest accomplishment of the court has been the fact that it was able to build the credibility it has in the political context in which it operated in a comparatively short time and as a brand new court being put at the apex of the judicial system every word of every judgement has been analysed, every decision has been analysed, everybody, especially politicians, like to explain things in political terms but I think that people have not been able simply through the work, because of the manner in which the court has done its work, no reasonable person has been able to label it as an ANC court or an IFP court or an anybody court. I think there was a fair amount of luck incidentally. I think that the variety of the cases that came before the court put it in a position where its rulings went in so many different directions that it would be difficult to label it, as I say, with any rationality.
POM So what would be its landmark decisions, if you had to pick three?
RG I think its landmark decisions, there have been a few, certainly the death penalty case was fundamentally important. I think generally it's putting in the forefront of all the constitutional values, human dignity is a very important foundational approach to what is a brand new jurisprudence. I suppose the couple of cases in which it rules against the government, in cases where it caused political embarrassment to the government, was important in demonstrating its independence.
POM What cases were they?
RG One was dealing with the demarcation of the municipal boundaries in the first local government election where parliament had delegated the power to do that to the cabinet and the IFP complained that this was unconstitutional, that parliament had to do it. I was in The Hague at the time, I wasn't a party to the decision. This court ruled in the majority, in a fairly strong majority decision, that what parliament did was unconstitutional and the government with great embarrassment had to recall parliament during a recess at tremendous cost and inconvenience to do it. Mandela's attitude was, that's what the Constitution Court is there for, if we make a mistake then we must get it right and he announced the same day that parliament would have to reconvene and do it. I've forgotten, but there have been other cases too.
Mandela's greatness I think includes his deep understanding of what constitutional democracy is about and the place of the Constitutional Court in that. I think the best example I always like giving when I speak abroad, or here for that matter, is the day the death sentence judgment came out: De Klerk complained publicly and he said this was absolutely unacceptable, the majority of South Africans want the death sentence and we should have a referendum and if the majority want the death sentence we should amend the constitution and re-introduce it. The same day Mandela came on TV and he said he was surprised to hear Mr De Klerk, who was then Deputy President, suggest that we rule by referendum. He said, "I thought we had agreed unanimously that we would have a constitutional democracy but if we want to rule by referendum I don't mind particularly politically, but I would suggest in our first referendum the first question should be about the death penalty. I've got a second question, we should ask the majority of South Africans whether white people should be allowed to keep the property they've accumulated over the last 350 years." It was a very good lesson in what a constitutional democracy is about and there's a control on the majority.
If I can say in conclusion, I think an important aspect people often omit to recognise is why is it in SA you had both the NP, the majority white party, and the ANC agreeing throughout that we should have a constitution and a bill of rights? The reason is that the whites saw a bill of rights, correctly, as their protection from majority rule, that there would be thresholds, there would be inalienable rights that couldn't be transgressed even by parliament. Why did the ANC want it? They knew they were going to have a majority, why did they want to be constrained and restrained by a bill of rights? The reason is they had been involved in a national and international human rights movement for four to five decades and it's unique in Africa that you have the major liberation party part of a human rights movement. So human rights, bills of rights, were no strangers to Mandela and to the other ANC leaders, Kader Asmal and Dullah Omar, all of them. If one goes back decades, if you look at the Freedom Charter of 1956 it's modelled on the Universal Declaration of Human Rights. So they had always campaigned, they had always wanted it and we're very fortunate that this form of democratic government was agreed to by two groups that came at it for very different reasons and from opposite corners.
POM Just as a little addendum to that, I was talking to Willie Hofmeyr the other night and he said he was on the committee that criminals, whereas the NP was arguing for a stronger bill of rights, so you had positions reversed of the NP saying, "We want a really strong bill of rights", and the ANC said, "Well let's only go so far."
RG That's right isn't it. We're very fortunate that that happened.
POM Do you think democracy is now well on its way to being consolidated in SA or do you think that given the results of the last election with the overwhelming victory of the ANC, the marginalisation of opposition, that most of the major legislation involving reconstruction and transformation that was passed in the last parliament, that perhaps during this administration parliament might become an appendage, you will have more direct executive rule?
RG I'm fairly content and optimistic that things are going well. I think they're going remarkably well. I don't think we're out of the woods. I think democracy is costing a hell of a lot more money than people anticipated it would. It's a very expensive form of government and certainly I don't think there's another country on the continent that can afford it, which is not a pleasant thought. I think people are beginning to understand it, it's getting through. If you look at our newspapers, the whole system of being bound by a constitution, I think people are beginning to understand we are, after all, still a country of minorities. There's no group in this country that's got an absolute majority.
POM There's no group that's not an absolute?
RG There's no group in SA that has a majority. If you look at language groups, religious groups, we're a country of minorities and I think that's most probably a healthy thing.
POM So you're not talking racially, you're talking ethnically.
RG And linguistically, culturally.
POM I knew there was one last thing because I talked to General Viljoen yesterday, that is he referred to Section 185C of the constitution saying that it provides for a people, in the sense of seceding from the state, but autonomous powers, and that the constitutional framework for a volkstaat exists, it's simply that parliament hasn't addressed the question. Would you agree with that?
RG Let's have a look. I've never on language rights?
POM It must be. So where are you going to in Kosovo? Are you going to Kosovo itself?
RG No but I've got a hell of a trip. I got back from New York on Monday morning and we're back for ten days and then I'm going to New York, Honolulu. You can imagine I'm really
POM Can you work on a plane?
RG Oh yes, I work very well on aeroplanes.
POM Do you have your computer with you? I just want to know your kind of computer because mine the battery runs out.
RG I don't use my computer on the plane. I take it because I get through to my e-mail.