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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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

15 Oct 1999: Langa, Pius

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POM     Let me begin with an odd question and that is a lot of the judges who were appointed to the Constitutional Court were judges that had served various administrations in the apartheid regime. I would assume that as judges they adjudicated the law of the government at the time, a government that most blacks regarded as being an illegitimate government. What qualified them for consideration to sit on the highest court of the land in a new dispensation in the sense that if they were good judges they would have been upholding unjust laws rather using their position to try to strike down unjust laws?

PL     It's a difficult question and it's a difficult issue. Some years ago, particularly here in Natal, there was a debate between academics and some members of the judiciary. There is a Professor of Jurisprudence who was at Natal University who raised the issue and the thesis was whether in an unjust system such as we had the judges should resign, in other words good judges should resign. There were two views obviously, very strong views, very strong feelings that good judges were needed in any dispensation, in any system and the other view was that  people could not in good conscience agree to be judges in a system which is unjust, where they had to uphold or administer unjust laws. I must tell you that the judiciary at that time was all white, all the judges were white, largely, well white and male, so if one speaks of transformation in today's terms it was a far cry from the situation then. Now lines are not very clear cut. Many members of the black population who were lawyers, like myself and others, we debated the question then: what if the government of that day wants to appoint one of us as a judge? And we actually took a stand that we would not agree to be appointed because we could not see, I could not see myself administering discriminatory laws which discriminated against my people for one thing, but apart from being discriminatory they were oppressive. So many people took a stand. There are some white practitioners who took that stand also that they would not agree to be appointed, but then there were others who felt, and I am sure this was a genuine feeling, who felt that if they don't accept appointment or if they resign who is really going to stand between the harsh oppressive laws and the people who were actually suffering from them. We as practitioners, I was practising at the Bar, we made no secret of the fact that when you had a very bad case, when you had a case against the government or somebody was being hard done by by the government, you sought a judge, if you could arrange it, you sought a judge who was known to be progressive, who was known to be against oppression and against discrimination even though he was working in the system. So there is some good which emanated from that.

     Now I am just mentioning this as a prelude to the present judges who were selected to be in the Constitutional Court. Firstly, of course, I had no part in that selection, I was also a candidate for selection, but the constitution itself allowed, in fact required, that some of those judges should form part of the Constitutional Court Panel and the President was going to make the choice. In terms of the Interim Constitution four judges had to have been judges at the time when they were appointed. That would mean that they would have operated under that old system. The President must have had guidelines. Everyone expected very progressive judges. There were judges who were known to be very progressive. He would have picked those kinds of people, personalities who would fit in with the new constitutional values at the time of appointment. So I can't say anything, can't go further than that, that they had to be members of the judiciary in the panel of the Constitutional Court. That is what the constitution required. I think also one must remember that that constitution was a product of compromise. The logic would be that you do need some of the judicial experience which some of those judges had and they had to infuse that into the other members of the Constitutional Court.

     But apart from that our attitude to judges at the moment is that all the judges, all of them, must subscribe to the values of the constitution. So I think to adopt a view that old order judges are incorrigible might be self-defeating in itself because that is the culture we want to inculcate, culture of values of the new constitutional order in all the courts, in all the judges, in all the magistrates and so on.

POM     Do you yourself think, again thinking along the lines of one of the controversies that plagued the TRC, who was fighting a just war and who was fighting an unjust war, do you think it is possible for there to be a just judge who has the task of administering oppressive and discriminatory laws, that there's an inherent contradiction?

PL     I don't want to answer that at a philosophical level but I would prefer to look at it at a practical level and the practical level is that we had a complex society, there was justness and unjustness. In the apartheid regime you had those judges, but then there were some judges among those judges who spoke out and who preferred to be unpopular and merely administered the law and said so, that this is the law but it's not just. They said it, "I'm bound by the law but I am saying that this law is not just." They said so, some of them. It's difficult for me to adopt a judgment on their attitude particularly because the nature of the settlement here was not one where you had victors and vanquished. It had to be merging, a bringing together of people from diverse cultures and views, colours and philosophical perspectives as well.

POM     Turning to another question more generally related to the judiciary, recently you have had the Minister for Justice, Penuell Maduna, making some remarks about how many judges were under-worked and could actually handle a lot more cases than they did, then you had this controversy over minimum sentences that are laid down by legislation and some commissions' reports that in many instances judges are not following those minimum sentences but are giving sentences at their own discretion And then the more recent case, still ongoing, of Judge Foxcroft and the idea in the minds of some MPs that they could haul a judge before a parliamentary committee and make him answerable to or explain his actions to a portfolio committee. The latter might be the easier to dispose. Do you think they fundamentally didn't understand the constitution?

PL     That is part of a climate, I think. Firstly let me straighten out the position about the Constitutional Court and the minister's remarks. I don't know how much of what was reported he admits to. The minister, if you were to find him now, he would tell you that he was one of the people who advocated the creation of the Constitutional Court. Now that means it's a distinct constitutional creation and if the constitution creates the court, the constitution also gives it its jurisdiction, it's not just a random jurisdiction. The Constitutional Court was never intended to be just one more court or one more level of courts in the SA structure. There was no intention to abolish the existing structure of the courts, inferior courts, the high courts, with the apex court being the Supreme Court of Appeal. There was never an intention to destroy that so it was left as it was. Instead what was created was a new court to be the guardian of a new constitution, just to show that this whole change is being taken seriously. The constitutional dispensation has got to result in a just change in mindset in everything. So the Constitutional Court had to be created to deal specifically with the constitution and it was made the highest court with regard to constitutional interpretation and that ensured, of course, that the other courts would be able to deal with constitutional issues as well. They had to because that's part of the culture that was being introduced and they could hardly operate without bumping themselves against the constitution or constitutional questions, so they had to deal with those things. But appeals from those, the final Court of Appeal would be the Constitutional Court. That was its function. It was given other functions as well, like certifying the constitution to see that it complied with the requirements, it's the court that will, with disputes between organs of state and so on and so on, it will continue to certify provincial constitutions.

     Now, having that means its jurisdiction is circumscribed, it's got to do certain things in a certain way and we are doing that. If what the minister said suggested, if it is suggested that the Constitutional Court has a large backlog of cases, in other words it's lazy, it's inefficient, it's not getting through the amount of work it should, then that's factually wrong. We are up to date with our work. We do so many cases per year and that's another point of criticism that the cases we do are not as many as they could be. But that's all the cases we get and if we compare ourselves with the US Supreme Court or the German Constitutional Court, I think the correct point of comparison is when those courts actually started - and I think we would find we are probably doing far more than they were doing at a comparative stage.

POM     In a sense every case you deal with is a ground-breaking case. It's not something that there is a precedent for in SA jurisprudence. You have to interpret it in the light of a new constitution so each case is a landmark case so it takes a lot more debate and a lot more reflection.

PL     And that is one reason why, and the constitution itself says all the judges have got to sit together for every case. We don't break into panels. This, for instance, is the chambers of one judge here. This judge goes into court alone and hears a matter, does not have to involve colleagues and everybody. We get involved, all of us, in any case which comes to the Constitutional Court so that we can bring our collective minds to bear. It's a constitutional issue and what is said there will have implications for generations to come. That's important.

     That is one thing, but the other thing is that we are actually extremely busy. I was in court this morning, we handed down two judgments just today, just before taking my flight and coming over here. But before that there was a lot of consultation, a lot of drafting, a lot of debating, agreeing and disagreeing, fine-tuning, because we are dealing with the constitution really. This is, today is the 15th October, the court is supposed to be in recess from 1st October but there I was in Johannesburg at the court not being able to wrench myself away. And in fact the reason I had to come down today is because of the speaking engagement I have at this particular school, which is a public service which we do willingly and we think it's good to be in touch and to see how much we can influence people with regard to the new constitutional values. So that's as far as the minister's remarks are concerned.

     The perceptions around judges, judges are not accountable and so on, I think have got to be seen against the background of the past. Collectively, I have told you about my own perceptions of the judiciary at the time, before 1994, the overwhelming majority of people had nothing to do with the judiciary except when they were hauled before the courts, otherwise this was a breed which was alien to the majority of the people. So it would be surprising if by the stroke of the pen and by the entrance of a new constitution the psyche of everyone was wedded to the view, the fine distinctions which you get in the doctrine of separation of powers, for instance. Many people would not understand why we, being the majority and wanting the death penalty, why courts can't just hand down the death penalty.

POM     Sorry, I'm a little bit deaf, Judge.

PL     Yes, sorry, I say the majority, many people would not understand why, where they feel that the death penalty should be brought back, why judges don't simply give the death penalty. I mean, those are the wishes of the people you see. So the judicial function itself is something which is not possible. There are two things: maybe it's not well understood firstly, but secondly maybe some people just don't want to be trapped into understanding that because once you understand that you are limited in how far you can go in criticising what the courts do and what the courts don't do.

     If you ask me if I have any views about the judgment which Foxcroft gave, my answer has got to be that I don't have all the facts, but obviously it's open to the state to appeal, and I believe they are appealing, and the judges who are going to look at it are going to pronounce on that.

     Whether judges should be called to parliament, obviously this is against the separation of the powers, it's against the independence of the judiciary, it should never be allowed.

POM     In that sense, my question is do you think the MPs who called for that just simply didn't understand what are constitutional separation of powers, they don't understand their own constitution and what separation of powers means, or they were playing to populism get the judge, hate the judgments?

PL     I think it's a little of both, I think it's both. Some of them may not quite understand that you can't do that but those who really don't understand I will say it's short-sightedness, because if you simply think the thing through you would see that it's something which can't be done. I suspect that there was something of you know there was this overwhelming wave of sympathy and politicians easily fall into those things, after all they are politicians.

POM     In a way I want to bring you to one of the issues that has been preoccupying me for the last couple of years and that is the epidemic of rape, of child molestation, of the increasing gang rape. Looking at society as a whole, why do you think that rape has emerged in SA?  I know the reporting rates are up but even when you discount that you've reporting rates up, the number of cases going to court I think is down, and conviction rates are down. What is it in the society itself that lends itself to this kind of violent action against women and children especially in the home? I think one third of all violent crimes are committed in the home. It seems peculiar in its intensity to SA, or else other countries simply aren't reporting it to the same extent. One university recently put out a study that said a minimum one of every four women who are raped in SA were gang raped. It's not even talking about rape per se, you're talking about gang rape. What's the nature of the beast?

PL     The first thing I should say is I don't know and I am casting about, I am casting about also looking for answers. In casting about looking for answers I inevitably get to a point where I look at us as a generation. SA has been violent for too long a time and that violence followed or came at a time when there was this massive oppression and the separation. I think the big word in SA is 'separation'. Separation in SA took a number of forms but I think the most devastating form was the breaking down of family life. We speak here of, for instance, the lost generation. Now the lost generation are people who have nowhere to go, who have not been able to get an education or an adequate education. They are the biggest sufferers when unemployment is 40% or thereabouts. The biggest sufferers will be members of that lost generation. They actually have nowhere to go. Then what contributed to that is also the system, not just of education which gave an inferior kind of education, but also all sorts of things which are attendant to apartheid, the migratory labour system and so on, which meant that people did not have families, people don't grow up in organised domestic families like they used to. Life became impersonal, the children their parents had to go to work, all of them, they hardly ever saw their children and the children hardly ever saw their parents. I think if we look, if one makes a study of this generation one will find that quite a majority of people got unhinged, disconnected from their families and I think that could be a contributing factor. Then, of course, if people are in a situation where there is just no respect for human rights, for the rights of other people, that respect for authority is also broken down. Again that creates fertile ground for some of these sorts of things. There are social factors and so on. My answer is I don't know but against that background I think if one were to seek for an explanation one might look fruitfully.

POM     Would you see it as an act of sexual gratification or an act of explosive violence and control?

PL     I would not say it's an act of sexual gratification. I think that's unlikely.

POM     You think that's unlikely?

PL     Yes. I think it's a way of taking vengeance somehow on society. It's a 'couldn't care less' attitude about the other person, a total lack of respect for another person. If I were to analyse it that's how I would say it. Sexual gratification, I think that comes last, I don't think so. I think rape is a very wasteful thing. It's a very bad thing, you have to be very cruel to want to gratify yourself sexually that way. I think it's other things, it's other than sexual gratification.

POM     Is it the powerless, the lost generation, the youth that you talked about, is it them in some way finding a way to express their powerlessness? With no other way to feel empowered, is it the last resort of feeling some kind of empowerment, that I am in control, I am able to subject - ?

PL     For that minute I'm in control. It could be. But then that's just half the answer because you have widespread abuse of women at the domestic level and this is not the lost generation, it's people who come possibly from decent homes and whatever, they get married and they feel they are in a position of power and then they start abusing and so on. So other factors have got to be looked at as well. But certainly I would think that a sizeable proportion of the people who indulge in gang rape or rape, the motivation might simply be that, "Look, I am helpless otherwise but I can be mighty and I can exercise control here so let me exercise that control regardless."

POM     One thing I am struck by is that, I'm just using the States as a basis of comparison because I'm vaguely familiar with what goes on there, rape is a life sentence. Now I look at Ireland, it's ten years, sometimes less. I look at here and here seems far more in line with Ireland than with the USA, it's 10, 12, 15 years but in the States it's categorical: it's life without the possibility of if there's any threat used it's without possibility of parole. We come down to this question of sentencing and I may be hypocritical if I say I'm Irish, not American, that in the States there are many states that have minimum sentences for certain crimes that judges just have to impose, they don't have any other option, no discretion, and there seems to be a move on in this country to move in that direction. Now either judges aren't being harsh enough so that we will take away their discretion from them, we will say if a crime is classified in this category then it's automatically ten years and that's it. Do you think this is a bad thing, in a young democracy particularly where the independence of each branch of government needs to be seen to be operating as an effective check and balance on the other, for the legislative branch to be assuming to itself the right to lay down sentences for various categories of crimes and in that sense treading on

PL     On judicial discretion?

POM     Yes, they're treading on the line of it's not interference but it's close to interference?

PL     Well that is the sort of question in respect of which I must be very careful. One of the big things, one of the main concerns of any judge, certainly for us in the Constitutional Court, is that we should not usurp the role of the legislator. The legislature must do its work. As long as what they do is constitutional, it's not against the constitution, that's fine. If it seems to be violating the constitution we call upon the legislature, if the matter is challenged, we call upon the legislature to justify it. If there is proper justification we would have to scrutinise it. If we are satisfied with the justification then it should be allowed to stand. That's as far as we can go.

     Now at a philosophical level whether it's a good thing, for instance, for parliament to impose minimum sentences, that's actually a big debate, I don't know that one can simply put the knife in and say it's always a bad thing or it's always a good thing. I think there are times, depending on the degree, how much of that imposition is done. It depends really on the circumstances. You see, for instance, we have this phrase in our constitution comparing our constitution, or provisions of it, with other open and democratic societies. If some of the provisions may be acceptable in other open and democratic societies, depending on the need, the provision may very well be allowed to stand. But I can't comment on these minimum sentences because I can foresee that in not too long they may be coming to us.

POM     They will be challenged?

PL     They will be challenged, yes, and then I must have an open mind when these challenges come.

POM     I've one last question since I know you have to go.

PL     But I know that judges in general dislike minimum sentences. That's one thing. But the other thing is I think judges in general must have a realistic view of what is happening around them. Their task is to apply the law but we expect the judge also to be a transformed person, to know what's going on and then have the courage to do what he believes is the law.

POM     OK maybe I'll leave it, rather than getting into another subject which will cut you off mid-sentence. I will leave it there and we can take it up again tomorrow. I'll tell you some of the areas that are on my mind:-

     (i)     the whole apparatus of the administration of justice: is it simply falling apart without the resources, it just can't do its job?

     (ii)     the provisions in the constitution which give the right to a speedy trial and at the same time the average time between the issuance of a docket in a case and the final disposition of a case is 507 days.

     (iii)     That one third of the prisoners in jail are prisoners awaiting trial. How is this related to bail?

     (iv)     One of the issues that preoccupies me most, because I'm doing a lot of work on it, is the whole question of AIDS and whether there may be times when -

PL     There is a taxi waiting outside for me so I will be rushing off.

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.