Assented to 16 December 1996; date of commencement 4 February 1997. English text signed by the president.

As amended by the Constitution of the Republic of South Africa:

• Constitution of the Republic of South Africa, 1996
• Constitution First Amendment Act of 1997
• Constitution Second Amendment Act of 1998
• Constitution Third Amendment Act of 1998
• Constitution Fourth Amendment Act of 1999
• Constitution Fifth Amendment Act of 1999
• Constitution Sixth Amendment Act of 2001
• Constitution Seventh Amendment Act of 2001
• Constitution Eighth Amendment Act of 2002
• Constitution Ninth Amendment Act of 2002
• CConstitution Tenth Amendment Act of 2003
• Constitution Eleventh Amendment Act of 2003
• Constitution Twelfth Amendment Act of 20051
• Citation of Constitutional Laws Act 5 of 2005
• Constitution Thirteenth Amendment Act of 2007
• Constitution Fourteenth Amendment Act of 2008
• Constitution Fifteenth Amendment Act of 2008
• Constitution Sixteenth Amendment Act of 2009
• Constitution Seventeenth Amendment Act of 2012

 

Act

To introduce a new Constitution for the Republic of South Africa and to provide for matters incidental thereto.

Contents

Preamble

Chapter 1: 1-6 Founding Provisions
Chapter 2: 7-39 Bill of Rights
Chapter 3: 40-41 Co-operative Government
Chapter 4: 42-82 Parliament
Chapter 5: 83-102 The President and National Executive
Chapter 6: 103-150 Provinces
Chapter 7: 151-164 Local Government
Chapter 8: 165-180 Courts and Administration of Justice
Chapter 9: 181-194 State Institutions Supporting Constitutional Democracy
Chapter 10: 195-197 Public Administration
Chapter 11: 198-210 Security Services
Chapter 12: 211-212 Traditional Leaders
Chapter 13: 213-230A Finance
Chapter 14: 231-243 General Provisions

Schedules

Schedule 1: National Flag
Schedule 1A: Geographical Areas of Provinces
[Schedule 1A inserted by s. 4 of the Constitution Twelfth Amendment Act of 2005.]
Schedule 2: Oaths and Solemn Affirmations
Schedule 3: Election Procedures
Schedule 4: Functional Areas of Concurrent National and Provincial Legislative Competence
Schedule 5: Functional Areas of Exclusive Provincial Legislative Competence
Schedule 6: Transitional Arrangements
Schedule 6A:
[Schedule 6A inserted by s. 6 of the Constitution Tenth Amendment Act of 2003 and repealed by s. 6 of the Constitution Fourteenth Amendment Act of 2008.]
Schedule 6B:
[Schedule 6B, previously Schedule 6A, inserted by s. 2 of the Constitution Eighth Amendment Act of 2002, renumbered by s. 6 of the Constitution Tenth Amendment Act of 2003 and repealed by s. 5 of the Constitution Fifteenth Amendment Act of 2008.]
Schedule 7: Laws Repealed

Judicial Service Commission Interview with Prof. Edwin Cameron
Professor of Law
Centre For Applied Legal Studies
University of Witwatersrand
Monday, 3 October 1994

Judge Corbett:

Prof Cameron, reading your CV I notice you joining the Johannesburg Bar, what is it, 1983?

Prof Cameron:

Correct.

Judge Corbett:

Thereabouts. At a certain stage, I think it is about three or four years later, you joined the Wits staff, did you, in the Centre for Applied Legal Studies. Did you retain your membership of the Bar during that period?

Prof Cameron:

Yes, Mr Chairman, I was one of the first group to be given a special dispensation after the practitioners who were allowed to join the Legal Resources Centre. A further dispensation was made for members of the Bar who wanted to join public interest institutes like the Centre for Applied Legal Studies which were not totally dedicated to practise unlike the LRC's, and I was enabled to take up a semi-academic position while remaining a full and not merely an associate member of the Bar.

Judge Corbett:

Yes. From then onward was the bulk of your work with the Centre or was it Bar work?

Prof. Cameron:

It was a combination of litigation and academic work, and the greatest part of the litigation was public interest litigation but I did retain some ordinary commercial trusts and other litigation. So while I did not have the turnover or the bulk of a member of the Bar, I think I still retained some significant contact with practice throughout.

Judge Corbett:

Would you care to explain to the Commission why you took this decision to, as it were, withdraw partially from the Bar?

Prof. Cameron:

Yes, Mr Chairman, thank you. It seemed very important for me to try to combine both my academic interests and my commitment to practice and the job at the Centre of Applied Legal Studies seemed to enable me to do that. The other advantage of the job is that I think in a commercial practice at the Bar, and I think this is something that is very difficult for someone outside the Bar to understand, it is very difficult to regulate your turnover or to select your cases who has been based at a human rights' institution. It meant that I could be far more selective about the cases that I did do, and that to me was an enormous advantage, and it also gave me a chance to do some research and writing and policy-making.

Judge Corbett:

Prof Cameron, I think if my calculations are correct, you are now 41?

Prof Cameron:

Correct.

Judge Corbett:

The appointment to the Constitutional Court is at the present, under the present Constitution, a non-renewable period of seven years. If you were appointed it would mean that when you are 48 you would go off the Court. How do you feel about that?

Prof. Cameron:

May I ask does your question relate to the prospect of being unemployed and idle at the age of 48?

Judge Corbett:

More or less, yes.

Prof Cameron:

I am not scared of that prospect at all. I think there will be many, many things which the retiring Judges would be asked to do, either in academic practice or perhaps in other jobs on the Bench elsewhere were that to happen.

Judge Corbett:

I suppose it might be said that those who drew the Constitution, because of this limited period, had in mind someone of maturer years and riper experience. How do you react to that?

Prof Cameron:

I think the practice in England has generally been to appoint people in their middle to late fifties to the Bench for very much the reason that you have given, Mr Chairman. I think in South Africa that has not been the practice. I think that Judges of our Supreme Court have on the whole been far younger. I think clearly the different circumstances that obtain here would mean that there will be a greater range of people of different ages. But I do accept that perhaps one wanted more sobriety or more seniority on the whole in the Constitutional Court.

Judge Corbett:

May I pass onto something entirely different? You obviously have studied the section dealing with fundamental rights in the Constitution, chapter 3.

Prof. Cameron:

That is so, Mr Chairman.

Judge Corbett:

How do you see the problems confronting the Court when required to interpret and apply the Constitution? What do you think are the particular problems and how do you see yourself as a member of the Court setting about solving those problems? I know it is a very wide question but it gives you lots of scope.

Prof Cameron:

Thank you, Mr Chairman. I think that there are obviously various groups of problems, there are interpretive or semantic problems and then there are constitutional and political issues, and I think that as far as the Constitution itself is concerned it is a very broadly drawn document, it is a very ambitious document. It is a visionary document in many ways, and the requirements for interpreting it in fact emphasise those requirements that there should be an element of vision and idealism in it. As far as our political context is concerned I think that is going to be a very important issue for the Constitutional Court as well. We have a judiciary which has played a very paradoxical role in our country's history. On the one hand I think that apartheid more than any other criticised social system employed the law in all its refinement to enforce its provisions. Paradoxically, however, the very refinement of the law in South Africa meant that the law could be used to curb, to challenge, to delegitimate, to use a word. I think that that paradox is one which will carry forth into the Constitutional Court the very selection process and the constitutional criteria mean that the Constitutional Court will have greater legitimacy than the courts previously had. But in my view the tradition of judging which is what I have referred to will have a significant impact on the Constitutional Court. The criticism of the former judiciary was not just a matter of its personnel or the individuals or of iniquitous judgments which I think the critics of the judiciary sought to single out, I think it is also criticism of the whole model of judging, and I think that the requirement may well be that the Constitutional Court will have to apply a different model of judging.

Judge Corbett:

Can you elaborate on that? I am not quite sure what that means in practical terms.

Prof Cameron:

Thank you, Mr Chairman. In practical terms it is clear in my submission that the Constitutional Court will be required, as far as semantics and interpretation is concerned, to apply a much broader vision of a purpose of vision of the Constitution and in particular of chapter 3. But in my view it is more complicated than that even. The Constitutional Court will be at the epicentre of a crux of institutions dealing with the new dispensation. The Constitution opens with a preamble which says that there is a need to create a new order, and the Constitutional Court will be at the apex of that whole apparatus which consists of the legislature, the executive and various institutions like the Human Rights Commission, the Gender Commission and so on. So in answer to your question, Mr Chairman, there are not merely semantic or interpretive commitments required from the Constitutional Court, there is also going to be a political sensibility required. The requirement will be to create a vision of the Constitution and of chapter 3 in particular while retaining an enormous sensitivity to the role of the Court within that power structure. In other words to be deferent on occasion and to be completely without deference on other occasions. Again I am answering you with generalities, Mr Chairman, but I think that the point I am trying to make is that there will have to be a very acute conception of the political interplay within the forces which created the Constitutional Court.

Adv Trengove:

Prof Cameron, you have been very committed to the campaign for gay rights both professionally and personally. Is that correct?

Prof Cameron:

Correct.

Adv Trengove:

Could I ask you two questions arising from that fact? The first is whether you think that that might enable you to bring a perspective to the Constitutional Court which might be valuable perspective? But secondly, also, how would you respond if gay rights' issues were to come before the Court? Would you be able to approach those issues with the open-minded dispassion that will be required of a Judge of the Constitutional Court?

Prof Cameron:

Mr Chairman, if I may be semantic for a moment, I think that the concept of gay rights is a misnomer, it would be like speaking of black rights or Venda rights for the Bavenda. I think the more precise concept is non-discrimination in the case of gays and lesbians. I am not merely being semantic about that. It leads me into the answer I want to give which is that I believe that the most profound promise of the Constitution is a promise of non-discrimination in a society which has been very deeply afflicted by discrimination and constructed upon it. Within that context I do not think that the commitment in the equality clause to non-discrimination against gays and lesbians is a particularly singular one. It is historically singular because it is the first Constitution to mention it by name but within a context of a commitment to equality and to non-discrimination on all the fourteen grounds specified in Section A(ii), I do not think that it will be difficult for me to be dispassionate. Within the gay and lesbian community there area significant debates about the exact meaning of that promise of equality. To me it seems clear that criminalisation of certain acts in private would suffer severe constitutional challenge. There is already a judgment of the Cape Supreme Court from September last year which says that. Then there are many more difficult issues about how institutional the recognition of non-discrimination would have to be. Those issues are not resolved within the gay and lesbian community, and I think again, if I may return to my answer to the Chief Justice at the outset, I think that the meaning of the equality clause is itself evolving and evolves in relation to understanding of what happens in the political sphere. For example if there simply is not money, the Chief Justice's answer to Judge Chaskalson's argument in the Rudman case, one of the realities with which the Appellate Division coped in the case about legal representation was a lack of resources. That will not be different in the Constitutional Court. So my answer is that it is much broader commitment, and within that commitment the black people on the Court, the women on the Court, the bisexual or homosexual people on the Court, I think that there is a shared commitment to a much larger vision than one which would be encompassed by a notion of gay rights.

Adv Trengove:

Thank you.

Adv Gordon:

Professor, if I could continue on that subject and the purpose of this question is to ask you whether or not you are satisfied that in the light of your writings, in the light of the positions you hold in regard to non-discrimination against gays, lesbians and people who suffer from aids, if I can base something upon a Northern Ireland case which went before the European Rights Commission. I do not know whether I have got the facts right but let me just give you the example, whether it is right or wrong. There was a plebiscite in Northern Ireland in which the Irish there decided not to adopt the liberation laws towards the decriminalisation of homosexuality in England, Scotland and Wales and a Northern Irishman took the question to the European Human Rights Commission and a distinction was drawn between consenting homosexual acts between persons over the age of 21 as being the invasion of Chapter 8 of the European Commission to the rights of private life but what was upheld, and whether I am right or wrong, let us just assume that there is legislation which does uphold, the condemnation of homosexual activity between people under the age of 21. Now do you feel that if that kind of problem were to be presented to the Constitutional Court, and knowing your strong views in this regard, do you feel that you are really able to exercise an independent and impartial line as the Chief Justice put to you, what we really are looking for are people who notwithstanding their views on things still have got an open mind and would not allow their own personal views to carry the day. Are you comfortable with that, with that sort of problem?

Prof Cameron:

I think that our history in a way afflicts all the short listed candidates because in some measure we have all been committed to a conception of human rights which was at odds with the previous system and which is in keeping with the present system. Now I do not think it is a problem, Mr Gordon. I think you are referring to the Drudgen case, if I am correct in Northern Ireland. That is why the model of judging which the Constitutional Court will evolve and its vision of what chapter 3 as a whole means will be so important because within that model and within that vision I do not think it will be difficult for someone like myself or anyone else who suffered from discrimination who has strong views about issues like abortion or women's rights or the death penalty. I think it is will be possible to bring dispassion and integrity and firm commitment to an analysis of the issues. In a sense the issue you have raised is too easy because the age of consent issue is a discrimination issue which can be adjudged, I think, equally between people of all sexual orientations. But there are many more difficult issues which may arise, for example the question of partnership benefits which cost money. What if a State employee says people who contracted conventional civil religious marriages have benefits for their partners but you do not have it for homosexual partners? There will be more difficult issues which will have to be adjudged against the background of a broader commitment to equality.

Adv Gordon:

The adoption of children, do gays have the right to adopt children?

Prof Cameron:

Very much so. I think that in a way you are raising an important paradox for all the candidates, not just for me. You are raising the paradox whether a commitment to human rights, to non-discrimination, to justice, to those lofty and important ideals which may people have struggled and died for in this country, whether that commitment will itself disable one from participating dispassionately and properly and with integrity on the Constitutional Court. I do not believe it will. In fact I believe that that commitment as evidenced by one's professional life and one's adult life in whatever sphere, and I am not only a gay activist or someone who has fought for the rights of people with aids, I did many conscription cases on behalf of the Inconscription Campaign, I fought for cases with the UDF, with COSAS and I have done many union cases as well. So I do not sit here before the Commission as a gay activist. I sit here as someone whose gay activism stems, as Mr Trengove said from a personal aspect in my life but which is part of a much broader commitment to justice and equality, and against that background I think I can answer your question with certainty.

Adv Gordon:

Thank you, prof.

J. Chaskalson:

Prof Cameron, would you see any distinction in developing this issue between your own writings and position and for instance the question of gender discrimination in the selection of a woman Judge who may have written on that field as well?

Prof Cameron:

I do not, Judge Chaskalson. I think that it would be, I am not saying the questions are illegitimate. I think they would be as proper to ask to the black candidates who have suffered racial discrimination, to the women who have suffered gender discrimination to what extent will there be integrity and dispassion in deciding issues which fall within those fields. Have I understood your question correctly?

Chaskalson, J:

I think you have, yes. Possibly I could go a little bit further now that I am talking to you, and ask you this. If you were to identify underlying values in the Constitution, you talked about non-discrimination but are there any other values that if you were to be asked what are the principle values underlying this Constitution, what would your response be?

Prof Caameron:

Thank you very much. To me the most central value in the Constitution, I have coded it with the word discrimination until now but I think it is the value of equality. The compromise which was reached through the negotiations was to couple almost every reference to equality with freedom, and neither term is defined in the Constitution. They are concepts which will have to be given content by the Court, and it really is going to be a matter of enormous difficulty which is why also I have been insisting that the understanding of those terms is going to be evolving both interpretively and politically. The Constitution did not promise instant egalitarianism for all South Africans but I think it promised a commitment to some form of greater equality. Our society has been riven by very great divisions which have been reinforce by exclusion on the basis of irrational discrimination. The compromise was to refer to freedom and equality, a society based on freedom and equality, and that phrase occurs in many of the provisions with which the Commission will be familiar. The real question for the Constitutional Court is how will it weigh the alleged tension between those values? Now many writers have resolved that tension, in particular a very influential writer John Ralls who has written very beautifully about these issues, has resolved the issue by saying that all people must be equal and all people must be free but there is a distinction between what he calls liberty and the value of liberty. So to the person across the road in the park who is homeless, liberty has a different value from what it has for me or the Commission because we are professional people who are well dressed and mobile. I am not sure that the Constitution would permit the ease of that distinction. I think that the underlying commitment to equality is one which goes right through the Constitution and setting the Constitution in its historical context. I think it is a commitment which is more profound than to merely formal equality. I think there is some notion of substantive equality which informs all the ideas. The idea I am putting forward is not novel. The American legal philosopher Ronald Hawkins says that the notion of equal concern and respect underlies many other socially articulated principles and commitments but I do believe that there is evidence to find for that in our Constitution. Clearly the initiating agency in equalising our society more will have to be legislature. But I believe that in applying the limitation clause, Section 33, and in judging the constitutionality of the legislature's pronouncements, that underlying notion of equality and the vision of it, and the aspiration towards it, is central.

Judge Corbett:

I am sorry to interrupt for a moment. I am afraid we are operating under the same rules as a sitting of the Court. So I think you are preparing to televise us or video us, are you? I am afraid it is not on, sorry.

Adv Gordon:

What is your reaction to that?

Prof Cameron:

Are you asking me? Shall I answer that question?

Adv. Gordon:

Let us assume that before the Constitutional Court an issue arises, should the legal proceedings be televised?

Prof Cameron:

I think the Court had a difficult compromise to make. It could have erred on the side of caution which is only to allow note-books, it could have erred on the side perhaps of taking the risk of the intrusion of television cameras. Temperamentally and personally I would have erred on the side of permitting wider media coverage including television coverage of these proceedings. I think that the importance of these proceedings is high enough for it to have been made as open as possible. I realise that the Commission was dealing with a difficult compromise but I would have erred on the other side.

Judge Corbett:

You would not have found it intimidating to have the cameras focused on you?

Prof Cameron:

It could have been done discreetly, Mr Chairman.

Judge Corbett:

Is it normally?

Prof. Cameron:

At Wimbledon it is, they are behind clothes like this. It can be done.

Judge Corbett:

May I just ask the following? A question has been put to you about the fundamental values under the Constitution. In several clauses we have the sentence, more in a phrase: Something that is justifiable in open and democratic society based on freedom and equality which you have picked up those last two values. How do you interpret the earlier values of an open and democratic society? Let us take the open society first. How do you interpret that? Through Carl Popper wise or?

Prof Cameron:

I beg your pardon?

Judge Corbett:

Carl Popper wise or according to his philosophy or how do you interpret it?

Prof Cameron:

Carl Popper is a philosopher whom of the Judges already appointed to the Court greatly values and so I have only second-hand acquaintance with his main views. But in the sense in which he wrote about the open society which is a society not based on totalitarian structure, yes, I think the Constitution specifically mandates that, and also in the more, a sense which has become a clich1 about political life. The misnomer transparency idea that processes should be visible and democratic clearly, I think that that also is embodied throughout the Constitution. I do not know if I am being precise enough, Mr Chairman.

Chaskalson, J:

Could I ask you about that issue of democracy? You mentioned freedom and equality but I think it was Dean Healy who says that the great tension or the great dilemma as far as judicial review is concerned is that an unelected body of persons is telling the elected representatives of the people that they cannot govern as they would like to govern. Is that a dilemma?

Prof Cameron:

Yes, Mr Chairman, it is perhaps the profoundest dilemma of democracy and the judiciary. It is an unavoidable dilemma and Dean Belly himself has sought to resolve that dilemma by saying that the Constitutional Court or the American Supreme Court's role is only to keep the processors of democracy open. So if there is any impediment on voting rights, on freedom of speech, on publication expression the Constitutional Court must be inexorable about intervening. He has tried to make a distinction between process related rights and what he calls substantive values. It has been debated in America, and I think rightly. I do not believe that that distinction can be made. It is a distinction which can be made in argument in the American Constitution which is far more sketchy than our chapter 3. I think our chapter 3 will require the Constitutional Court inevitably to make substantive value choices as for example on abortion which the American conservative constitutional philosophers believe was not within the province of the court. I think our Court, which specifically mentions dignity, privacy and the right to life, unless the legislature pre-empts it, may have to make a substantive value choice. If I may return to the beginning of your question, that is a dilemma and one cannot resolve it simply by a pat answer like saying well, the negotiating parties agreed to give the Constitutional Court powers. Part of the answer is to be found, I think, in the guidelines which were articulated for this Commission which is that the Court ultimately will have to be accountable through reason Judges. The only defence of a court like the Constitutional Court is reason.

Chaskalson, J:

Would it have any application to the whole question of the interpretation of the limitations' clause?

Prof Cameron:

Yes, very clearly, Judge Chaskalson, Mr Chairman, very clearly indeed. The limitation clause broadly, apart from the generality requirements, sets the requirement of reasonableness and justifiability, and I think that those are distinguishable requirements and clearly a margin of appreciation or a margin of leeway will have to be given to the legislature where the Court will defer. That is appropriate but the mere notion commitment to deference is not going to enable the Court to evade making some very fundamental value choices in my submission.

Judge Corbett:

In the end will it not be largely a value judgment upon a particular situation, maybe even a set of facts, not even a piece of legislation?

Prof Cameron:

The risk of saying it is a value judgment on a particular situation is that it might hold an escape clause for people. I think that many of the judgments of a former Chief Justice, Judge Rumpff, introduced the notion of the boni mores of the reasonable man, person, and yes, it is true that ultimately there will have to be a value judgment but it will have to be a value judgment which is set against a theory of interpretation and a theory of political accountability which the Court will have to articulate. The Court will not be able to make major pronouncements on employee benefits, abortion, death penalty or provincial powers for example or the role of the Defence Force which is also circumscribed without having a coherent warrant and justification in its reasoning. That will have to be developed and it will have to, in my view, developed early and coherently by the Court.

PRESIDING OFFICER:

What do you feel about Judges introducing their own values into judging?

Prof Cameron:

That is an issue about which we fought very severely in the 1960's, Dugard and Matthews in the 1970's and then the later crop of judicial critics in South Africa. The realisation that the intrusion, and it goes back to the questions Mr Gordon and Mr Trengove asked me, of personal values is unavoidable but that it is not inevitable that there is a distinction between applying your own subjective values and trying to make value choices of the inner coherent framework of value accountability and I think that judging requires the latter.

Adv Bizos:

Prof Cameron, do you believe that there are of the 32 rights enumerated in chapter 3 on which the Court has to pass value judgment irrespective of clear evidence of the popular will? There are talks about referenda for instance in relation to (a) and (b). Are there any of those rights which you, as a Judge of the Constitutional Court, would seek to protect against the will of the majority and which would they be? You do not have to give an exhaustive list but if you thought of any.

Prof Cameron:

Mr Chairman, perhaps the two easiest but also the two most difficult examples are the question of a woman's choice in relation to terminating a pregnancy and the question of the death penalty. I think on both issues one could well do a survey, and I think that the ordinary South African here a kilometre away in the city centre of Johannesburg may well have views which might not be in keeping with what the Constitutional Court may eventually decide on either the death penalty or abortion. I think that the constitutional mechanisms are such that the Court will have to make those decisions, and I would certainly include the two examples I have given as issues which notwithstanding popular feeling would have to fall for proper decision by the Court in terms of the constitutional values.

Adv Bizos:

The other questions that I would like to ask relate to the judicial process because you are one of the candidates that has actually a foot on both the academic and the practising and I know that you have served on commissions. In the limitations' clause it says practices in democratic countries. How would you determine the practices of democratic countries if you were on Constitutional Court and what would you require the parties to put before you or would you pontificate ex cathedra about the nature of human beings?

Prof Cameron:

Mr Chairman, the Constitution in fact requires the Court to take account of comparative experience where appropriate, and there are various ways of doing that. The animicus curiae briefor a comparative resum1, I am told that the Court will have some research assistance. There are accredited ways of determining what occurs in other countries through comparative jurisprudence which the courts already apply. Many of the techniques of constitutionalism will not be novel, and I think that there would be easy or readily accessible ways of finding out what the position is in other countries.

Adv Bizos:

A question which suggested itself as a result of the question put by the Chief Justice in relation to your age. In the last couple of years have you considered making yourself available to the provincial division or divisions if you do not like the Transvaal?

Prof Cameron:

Yes, I have, Mr Chairman.

Adv. Bizos:

Yes and no?

Prof Cameron:

I said yes, I have.

Adv. Bizos:

Oh, you have, I am sorry. What is your attitude? Would you accept an appointment or would you have accepted an appointment before you were nominated to the provincial division?

Prof Cameron:

I will be very honoured if I were asked to serve on a provincial division.

Adv. Gordon:

Yes, in fact I think Prof Cameron, it is correct, is it not, that you have recently been given your Silk?

Prof Cameron:

Correct.

Judge Corbett:

I was not aware. Congratulations.

Prof. Cameron:

It came through on Wednesday.

Judge Corbett:

Oh, I am very pleased to hear that.

Prof. Cameron:

Thank you.

Adv. Bizos:

Prof Cameron, one of the issues that we have to adjudicate upon in relation to the candidates is independence. Have you shown any independence on the commissions that you have sat on? Have you disagreed with your senior colleagues? Have you been critical of your university?

Prof Cameron:

That is a prejudicial question, I ask you to assess it. I have sat on two commissions recently with members of the commission. I sat on a commission with Mr Bizos and Mr Schreiner in which I took a dissenting view which echoed the view on the disruption of campus meetings, it preceded it in fact but in tone it was comparable to the view by Judge Chaskalson to the horror of the editor of The Sunday Times. There was a disruption of a meeting by Angolan generals, UNITA generals at Wits and the Schreiner Commission, which Mr Bizos in fact chaired, was asked to investigate a whole range of issues on the Wits campus in late 1986, and I took a dissenting view on that and it has to do with the freedom of speech. It is a view which I have thought very carefully about since I took it. More recently Miss Moroka and I were asked to investigate the defalcations and the national co-ordinating committee for the return of South African exiles and we had a range of evidence from the constitutive bodies which were the liberation movements and the churches, and our report is controversial. We have criticised prominent leaders within the churches who were the leading trustees on the national executive committee of that co-ordinating committee, and there was a feeling amongst some people that we were not critical enough of the biggering amongst the liberation movements. We have subsequently received what I think is, it comes close to a letter of apology for that criticism. I think that the report dealt without favour or fear in my view. I am drawn into referring to ...(inaudible) issue with two of your Commissioners, Mr Chairman, which is why I said the question was prejudicial but I do think that both those reports indicate, at least a capacity, for not being swayed by senior colleagues.

Adv Bizos:

A final question arising out of a number of questions that were put to you. Would you consider a person who has been an active participant in the abolitionist cause a person who would be not sufficiently impartial to serve on a court?

Prof. Cameron:

Mr Chairman, that is a difficult question and it is one again which temperamentally Judges may differ on. If I may refer to an example from your own judicial history, you know, one of the first significant cases of trusts to become the Appellate Division in the 1980's you had written a chapter in a book dedicated to Judge Schreiner which express certain views on exactly the issue which arose, I think, in Brown and Bland and you did not sit in the Brown and Bland appeal. Perhaps where a member of the Court has written directly on the specifics of an issue which will arise in those terms for decision, it may be appropriate for recusal because the person in that case may not have sufficient dispassion or detachment from the issue. Again if I may go back to my earlier answer, I do not believe that a commitment to non-discrimination or the abolition of racial discrimination or the equality would disable one generally from taking part in decisions on those issues.

Adv. Bizos:

Thank you.

Prof Mureinik:

Prof Cameron, you have spoken about a need for a new model of judging in South Africa. One of the issues which will arise under that head will be how the Court manages internal disagreement amongst its own members, and there seem to be two models with an international constitutional jurisprudence from which to choose in answering that question. The model of the American Supreme Court by which the Judges write a separate judgment whenever they disagree with the main judgment, or even when they disagree with it only in part or only in respect of part of its reasoning. The other model is that of the German Constitutional Court in which the Judges are at great pains to workshop and agreement that is acceptable to all of them and they are discouraged from publishing separate dissenting or concurring judgments, and indeed I have been told that they would, even when they disagreed with the judgment given by the court, they would generally publish a dissenting judgment only if they considered it to be matter of conscience. Which of those two models do you think the Constitutional Court should follow and why?

Prof Cameron:

Again I think it is a matter of constitutional history. I think in the German Constitutional Court half the Judges are in fact selected by the legislature and it is a more directly politically accountable model. The only means of accountability in our judicial system is, as I have suggested earlier, through reason judgments, and I would therefore think that the model of multiple judgments, although not a multiplicity of judgments, but I would think that it would be useful to have dissenting judgments. Some of the great developments of the future have been built on dissents of the past in Common Law areas like enrichment for example, in areas like access to detainees Schrimbucke and Clint in America the dissents of Judge Holmes. I think also in the American coast dealing with the permissibility of criminalisation of sodomy, the dissents there were extremely strong, and I think that the will form a guide-line for the future. So I would, in answer to your question, certainly favour the model which allowed expression of judicial opinion subject to leadership, and I think it does depend on the leadership of the Court because again eleven judgments each time or nine judgments each time would actually be damaging for accountability and for reason.

Prof Mureinik:

Thank you. If I could just shift tack to a different subject? The Constitution says that it is binding on all three branches of government: The legislature, the executive and the judiciary but chapter 3, which is the Bill of Rights, says that it is binding only on the legislature and the executive and it leaves out the judiciary. What is the effect of that difference in wording?

Prof Cameron:

At least there is a range of views possible. There is a view which I think I have heard you expressed in lectures, Prof Mureinik, which suggests that Clause 7(2) and 33(4) for example actually mean that the Bill of Rights applies to all relationships. Clause 7(2) says that the Bill of Rights shall apply to all law enforced during the period of life of a constitution. I take a more conservative view on that. I think that the distinction between Clause 4(1) and Clause 7(1) clearly indicates that prima facie the Bill of Rights is not intended to be applicable to private relationships. However, the interpretive provisions and especially the provision at the end of Section 35(3) which says that the spirit purport and objects of the Constitution must be taken into account in all court proceedings, whatever the issue is, I think that, that will indicate a very significant influence will have to be exercised. The really difficult case for example I think is where there is no legal relationship between two parties. Where there has been a wrongful act alleged the Court must adjudicate between two parties who are in a certain bond as it is, and the Court will then be required to apply the Bill of Rights through the interpretive provision. But for example in pre-employment discrimination, if the insurance company say we are not going to employ anyone who is black or anyone who is a woman, I think it is much more difficult. That to me is the test case of the reach of chapter 3, and in my view chapter 3 will not assist the job applicant to eliminate discrimination in the private sector.

Adv. Gordon:

Prof Cameron, I also have another question for you and that is do you have any party political affiliations or are you a member of any political party?

Prof. Cameron:

Yes. Since June 1990 I have been a member of the ANC, and if I may say something together with that, I was also a member of an electoral tribunal for the Transvaal which gave two judgments, one of which is reported in August in which I have participated in the drafting. In one of the judgments the ANC was fined R50 000,00 and in the other an interdict was given against it. I am a member of the ANC. I do not believe that that will affect my judicial capacity against it were I ever to be appointed to a Bench.

Adv. Gordon:

Do you think Judges should be members of political parties?

Prof. Cameron:

No, I do not. I would resign were I ever to be offered an appointment to any Bench.

Adv Gordon:

One last question, some years ago, professor, you became somewhat controversial in your articles about the judiciary. Some people may say that this was your conscience pricking you and forcing you to speak out, others may say it was just a desire to draw attention to yourself because there is a value in controversy. You were a young man at that stage, you were embarking upon this career of taking up causes which other people have thus far not taken up. What was it that motivated you to become so controversial?

Prof. Cameron:

I am happy for what I wrote to be assessed on its own standing because I do not believe that it was an oblique desire for self-publicity which did that. In fact some of the publicity I think was quite harmful to my legal career. I think the most difficult issue for me was the Sharpeville 6 case where I wrote in the Journal of Criminal Justice about the Appeal Court's judgment refusing the appeal and refusing to intervene on the question of extenuation. I felt a great depth of passion about that case. I believe that the Appeal Court and the five Judges who constituted at the time made a grave error in their factual assessments of one of the cases and in their refusal to intervene on extenuation given their assumption in the judgment that there would be no cause or connection between the acts of the accused and the death of the victim. I think that my pronouncement stemmed from the depth of passion that I felt about it. Perhaps in some cases there was a floridity which I now might temper at the great age of 41 but I do not recant from anything I ever wrote, and I do not think it was motivated by self-publicity.

Adv. Bizos:

Could I just add a post-script to that? The only criticism that was really offered by the Minister of Justice was your age, if I remember correctly.

Prof. Cameron:

A junior member of the Court.

Adv. Bizos:

Yes, he had never heard that it is not a question of age but what is right and what is wrong.

Prof. Cameron:

Thank you.

Mr van Zyl:

Prof Cameron, do you believe that the Judges of the Constitutional Court should display a greater political awareness than that which has traditionally been seen to the role of Judges in the Supreme Court?

Prof. Cameron:

Mr Chairman, Mr Van Zyl, I would think so. Political in the sense of a model of political accountability. Obviously not in the sense in which Mr Gordon asked me of what will suit the ANC or what will suit the DP or the National Party but in the sense that this Constitution is going to require a very difficult balancing of roles between the arms of government, including the judiciary which is an arm of government, and also in terms of how those pronouncements, so my answer to your question is, yes, sir.

Sen. Radue:

Prof Cameron, I think in 1987 you researched human rights at Harvard.

Prof. Cameron:

Yes, that is correct.

Sen. Radue:

In the States. Can you tell us, did you research any specific aspect? Did you concentrate on any specific aspect of human rights as such or did you deal with it in general?

Prof. Cameron:

Yes. In fact I was at that stage dealing with aspects of the judiciary, and I gave a seminar at Harvard which I prepared. I was there for six weeks, which I prepared on the judiciary in South Africa. The Sharpeville 6 judgment had in fact been given I think on 10 December 1986 and I spent the first six weeks of the following year at Harvard. That was mostly aspects of the judicial performance, and some of my writing after that reflected the research which I had done at Harvard in early 1987. Mr. Ernstzen: One has been listening very intently to the answers you have given to some quite complexed questions, and from time to time you referred to other candidates having put the same question to them or the same question being put to them. What I would just like to try to solicit from you, given the diversity of the society from which we are emerging and the complexities that go along with it, and having regard to the fact that whether we like it or not we are being compartmentalised and locked up through education, through environment, through religion, through all aspects of our life we have been separated from one another. Now through the Constitution and you made reference to equality, non-discrimination in its broadest contextual form, apart from the other ten were you to be nominated successfully so, do you believe within you as a person you would be able to transcend those diversities and complexities and be able to sit as objectively as a human being could possibly do in coming to a judgment on very complexed issues? I ask this of you and I will ask it of others as well.

Prof. Cameron:

Mr Chairman, Mr Ernstzen uses quite terminology which a lawyer would classify perhaps as sentimental like transcendence, like human divisions but I believe it is appropriate, with respect, Mr Chairman. I think that the Constitution does require visionary application and idealism. It also is going to require tremendous practicality. I am not sure if any South African can actually say unequivocally that he or she will transcend the past. I think of myself as a white person because I grew up in a society which placed a very special value on my race. I think that we can only battle with our past and the Constitution offers us a framework, and I think the Constitutional Court should be a luminous example in the battle for transcendence, whether each of us individually will attain it in our lifetimes, I am sceptical but we certainly are called to that battle.

Chaskalson, J:

Prof Cameron, I am very sorry to come back to the question of age. The Constitution has been pointed out, it talks for a seven year appointment but it does say subject to what might otherwise be provided in, let us call it the definitive Constitution, for the want of a better word at the moment. Assume that definitive Constitution were to say that Judges of the Constitutional Court will have the same tenor as other Judges, that will be until age 70, there are a number of questions which arise out of that. First of all, what is your reaction to being a Judge of the Constitutional Court for 30 years? It is hypothetical I realise in a sense ...(intervenes).

Prof. Cameron:

Yes, I will try not to be flippant in my assessment. I would imagine that someone in my position who, if offered an appointment were then to terminate it after seven years, would hope to be asked by the Judicial Service Commission at that point to become a Judge in one of the other divisions of the Court at that point, and therefore the prospect either way, whether it is a seven years appointment to this Court or elsewhere, would be of indefinite lifetime judicial service, and that prospect does not dismay me at all.

Chaskalson, J:

You do not see it as in any sense, I do not want to call it a bad thing but inappropriate for someone to judge for as long as 30 years? I know there are many examples, I think Learned Hand in America judged for 50 years but do you see that duration of judging as a factor which may or may not be relevant?

Prof. Cameron:

I am not sure if I understand completely what you are asking, Judge Chaskalson. I do not in fact, I think that many of us on the Commission and many of the candidates in sitting on commissions, in being arbitrators we have commenced that process of adjudgment in a broader sense in any event. I think it is a temperamental issue, I think it is an issue of qualifications, it is a very personal issue. I recognise that in South Africa judicial appointments are often in the early forties rather than in the early fifties or mid-fifties. I do not personally see any problem with a long duration of judging. Whether or not it is good for the Constitutional Court is a good question which could be debated. I personally would favour shorter non-renewable terms of office but were it not, were it to be otherwise, I personally would approach it only with delight.

Adv. Bizos:

Apropos this, Prof Cameron, would you not go along with the German practice that once a person has served his term he should not be available for any government or public service appointment in the hope that his judgments, his or her judgments will not be affected in any way?

Prof. Cameron:

Unless it is a judicial office where there will be insulation from the promise. The reason would be to say you are not going to give a judgment which might, however, incipiently favour some arm of government to which you hope later to be appointed. If the appointment would only be to another branch of the judiciary, I do not see that that objection would obtain.

Sen. Ngcuka:

Thank you, Chairperson. Prof Cameron, in terms of the Constitution, the final Constitution must be certified by the Constitutional Court. In the light of that I would like to ask you two questions. The first question is what are your views on the inclusion of second and third generation rights in a bill of rights? The second question would be do you have any views on the right to self-determination?

Judge Corbett:

Sorry, could you just repeat the second question?

Sen. Ngcuka:

The second question: Do you have any views on the right to self-determination? You would of course realise this is a matter which has not yet been resolved.

Prof. Cameron:

Do you mean of racial minorities?

Sen Ngcuka:

That is so.

Prof. Cameron:

If I may take the first question first, the question of second generation rights. We already have in nascent form some second generation rights and third generation rights in the Constitution in the Bill of Rights. The right to the environment is a classic third generation rights and the right to a basic education, qualified as it is in the Bill of Rights, is nonetheless a second generation right. We already have it. I think there are significant difficulties with asking a judicial structure such as ours to implement second generation rights. I think there are problems. A colleague of mine, Geoff Budlender, has done an analysis of the various ways, he has isolated four of five ways in which second generation rights can usefully be employed in a constitutional document. The one could be as directional principles as in the case of India, the second could be as a guide to interpretation and there are various other distinctions which I think he has very usefully made in his speeches and in his writings about this. I would not exclude, I am giving you a somewhat fudged answer, Senator Ngcuka, because I am not entirely clear on this issue. I approach it with reserve but I have not got a closed mind to the inclusion of second generation rights. As far as the question of self-determination is concerned I have not given it a great deal of thought. I certainly support the constitutional commitment to one nation and to one country and one sovereign state. I have not given it a great deal of thought. I can pursue the question if you make it more precise but I do not have thoughts about it.

Judge Corbett:

Thank you very much, professor. We will take a short break.
The Constitutional Court has made reasonable effort to ensure this is a proper reflection of the candidate's interview with the Judicial Service Commission. However, the nature of the recording and transcription process means that accuracy cannot be guaranteed.

Interview with Justice BE Nkabinde
October 2005

Judge Langa:

The position you are going to be interviewed for is as a judge of the Constitutional Court. I will put a few questions to you. My colleagues will also put some questions to you but we appreciate your making yourself available and for being here. Let me just get a few background facts just to get us going. You are presently a judge in which court?

Judge Nkabinde:

Mr Chairperson I am presently acting in the Supreme Court of Appeal. I am appointed a judge of the High Court in Mafikeng.

Judge Langa:

Mafikeng?

Judge Nkabinde:

Yes.

Judge Langa:

When were you appointed?

Judge Nkabinde:

I was called to come and act in that court at the beginning of 1999. I continued to act until the end of that year, October 1999 and at the end of October 1999 I was before this Commission, interviewed for a permanent post in that division and I was accordingly appointed. I continued to dispense justice in that court until now as a permanent member of that court. I have also acted in other courts, in the Labour Courts and I am now in the Supreme Court of Appeal.

Judge Langa:

When did you start acting in the Supreme Court of Appeal?

Judge Nkabinde:

My appointment is with effect from the beginning of June until the end of November this year.

Judge Langa:

Is this the first time you are acting in the Supreme Court of Appeal?

Judge Nkabinde:

Yes, Sir.

Judge Langa:

Other than that, you say you have experience, you have acted in the Labour Court?

Judge Nkabinde:

Yes, I have acted two terms in the Labour Court and for three terms in the Labour Appeal Court before I was invited to act in the Supreme Court of Appeal.

Judge Langa:

What is your background before you were appointed a judge?

Judge Nkabinde:

Chairperson I worked in the Department of Justice as a State Law Advisor in 1984 until 1989 when I decided to join the Bar. In 1989 I started pupilage at the Johannesburg Bar. When I finished I started practising in Mafikeng. I joined the North West Bar Council from say the beginning of 1990. I practised in that division until 1999 when I was called to act as a judge.

Judge Langa:

The Constitutional Court, what can you tell us about your suitability for the Constitutional Court.

Judge Nkabinde:

Thank you Mr Chairperson. Let me say just before that when I took office as a judge in 1999 I took oath and committed myself to be faithful to my country, to uphold and protect the Constitution and to dispense justice to all person alike without fear, favour or prejudice. I have done that since I was appointed, since 1999 to date. I think some of the judgments that I have delivered speak for themselves. Besides that I believe Mr Chairperson that with that experience that I have alluded to I am qualified. I am a fit and proper person to be considered for this position. I must also say apart from the fact that I am South African, a woman, I think Commission is enjoined by the Constitution to ensure that the judiciary reflects the gender and racial composition of the society in which we live and as I say I believe that the majority of the illiterate in the country comprises of women and most probably black women so I would urge this Commission to consider my application favourably because of those qualifications that I have mentioned, my experience in all these courts and my skills. I believe also that my involvement also in institutions like the Rules Board, where one is dealing with matters that to a large extent, enhances the values in the Constitution in the manner of accessing justice. I think we know that one of the issues that we are grappling with in this country relates to access to justice. We have a system which is very complex right now, a bit flawed, expensive, fragmented and I think overly adversarial. So in some of the things that we do at the Rules Board is to try to achieve those objectives for the ordinary people of this country and I think that can also be my contribution in the Constitutional Court with that experience.

Judge Langa:

Are you currently chair of the Rules Board?

Judge Nkabinde:

Yes I am presently chairing the Rules Board.

Judge Langa:

I see that you have served on the committee dealing with racism and sexism. Can you tell us a little about that?

Judge Nkabinde:

Thank you Chairperson. You would remember Chairperson that I was co-opted onto that committee apparently by the Heads of Courts and I think I represented women on that committee after being co-opted. This as you know, the issues relating to racism and sexism in our country continues to be debated. I suppose it is something that we have to learn to accept that it does exist with the kind of history that we have but I suppose that if you are all committed and we start from the basis that we need to respect one another and accord one another the necessary dignity that will set as a starting point. There will always be some differences but I think the sense of tolerance amongst all of us, not only in the judiciary, but I think in the society, we will achieve the objectives that the Constitution refers to in section one that our democracy is founded among other things, on human dignity, equality and non racialism and sexist society. In our objectives on that committee was to try to look at measures and strategies as we were mandated by the High Courts to see how best we can advise the judiciary on how to deal with this issue. Mr Chairperson I wouldn’t have to divulge much because I think that the report of the committee is almost toward finality but I think we have achieved our objectives in that sub committee by looking at measures that can assist of us in the judiciary in working with one another, in harmony, with tolerance and respect and I think the problems will be surmountable.

Judge Langa:

How have you found your work at the Supreme Court of Appeal?

Judge Nkabinde:

Chairperson I am happy I have my President here, Judge Howie. I must actually thank him for having invited me to come to his court. It was a big challenge when he approached me but I accepted the invitation. I must say there is a lot of work in that court. I enjoy working with all of them. The collegiality that one receives in that court is astounding and I enjoy working there despite the heavy load of work that one has to deal with. There is a wealth of experience and knowledge around us especially the acting judges and we enjoy doing our work despite all the other challenges that face us and I must of course say to Judge Howie I am indebted to him for that. I enjoy my work.

Judge Langa:

Thank you Judge Nkabinde.

Mr Mahlangu:

Just a very short question. I have been interested by the fact you mentioned about the access to justice which is a problem in this country and one would be interested or to hear more from you as to what proposals could you perhaps have or some ideas once you are appointed on the Bench to accelerate this access to justice particularly to the most disadvantages people of this country?

Judge Nkabinde:

Thank you Sir. I must say with the experience that I have from the Rules Board now, you probably have also seen that I had an opportunity to be involved in the South Asian Judicial Colloquium where this aspect was the core of the discussion there. You will probably know that the South Asian community almost share the same experiences with us although I think South Africa is more advanced in terms of the way the Constitution deals with matters, what we are grappling with but I think they take courage and comfort in trying to learn from countries such as ourselves. As I said earlier on the issues relating to access to justice include among other things the fact that litigation has become very expensive in our country. A bit slow, somewhat adverse and it is fragmented. Section thirty four of the Constitution talks about access to the courts. I suppose one can read into that and say access to justice in a broader sense and I think when you think about the ideals of the Constitution we all look forward to encouraging our people to see not only the Constitutional Court of course, but all the courts to see the courts as being friendly, as places where they can go to, to get some sort of redress but as things are now the majority of the people in our country being so poor, courts are almost inaccessible, you know, in that context and if you simplify the rules what we are now grappling with I am sure ordinary people will find it easy to approach the court and seek relief. The expenses attendant to litigation do somewhat prevent people from litigating and I think if you are able to look into those issues ….of course we have Legal Aid but it doesn’t really solve the problem. I think if we can simplify the rules, look at the bigger picture of the whole justice system and try to harmonise the rules and the civil rules of procedure we will make a step towards achieving that objective in the Constitution.

Mr Mahlangu:

Thank you Chief Justice and thanks Judge.

Adv Moroka:

Thank you Chair. Judge we did pupilage together many moons ago. I read all the judgments that you annexed to your form and if I may comment and say they made for easy reading, they were interesting and they dealt with issues in a very direct way. I was just wondering why is it you were appointed in 1999 and you only mention one reported judgment.

Judge Nkabinde:

Yes.

Adv Moroka:

But I do see that some of your judgments are marked reportable. Do you know why you have appeared so little, so seldom in law reports?

Judge Nkabinde:

Thank you Madam. Yes, you are correct. I must actually say that when I completed the questionnaire it was just one day before the closing date, I might have omitted to mention the other judgments that were marked reportable that, to my knowledge, have not been reported. You realise in some of the judgments that I also attached like the Amahlubi Tribe judgment that actually deals with a number of constitutional imperatives has not been reported albeit marked reportable. Madam I think you will agree with me that the question on whether ones judgement is reported or not is outside one’s control and authority. As much as you sometimes want your judgments to be reported but it goes up to a certain stage, you simply mark it reportable and somebody else has to cause it to be reported. I learned now that some of my judgments that were marked reportable for instance in the Labour Court were caused to be sent to the Constitutional Court, I suppose by the directive of the Chief Justice but I was told so by the librarian in the Labour Court that all those judgments were asked to be forwarded to the Constitutional Court. That, notwithstanding, I must say that yes, most of my judgments have not been reported for reasons that are beyond my control but I have dispensed justice and I think some of those judgments speak for themselves.

Adv Bizos:

I asked myself the question that Adv Moroka asked you and looked through your judgments. There may well be a very simple explanation that most of them deal particularly with questions of fact which are difficult to decide and you spend a lot of time on it and you set out the facts and contentions on both sides and maybe the editors don’t think that that sort of judgment is for the law reports but I wouldn’t worry unduly about it. But what I do want to ask is this. Our Constitutional Court has been in existence for ten years. A considerable body of jurisprudence has been developed. What I would like to know from you is to what extent have you informed yourself of this jurisprudence and how much of it have you imbibed? Are you going to be a beginner if you are appointed or will you be acquainted with the main judgments and the principles that have been enunciated by the Constitutional Court hitherto?

Judge Nkabinde:

Thank you Mr Bizos. I must say that I do not think that I will be sitting, dispensing justice in those matters really as a beginner. I think, yes, I agree that the law has been developed and I believe that it is imperative for judges, not only in the Constitutional Court I suppose, but all of us to examine the principles of law as they stand now and reshape them in the image of the Constitution. We see progressive judgments particularly in the Constitutional Court. Grootboom, Soobramoney Modderdam and a number of them, which some of them have just slipped my mind but we see that the ideals of the Constitution is achieved in most of those judgments. You look at the most recent judgement, I think, by the Constitutional Court in the case of the Minister of Law and Order where vicarious liability, the way it was dealt with by the Supreme Court of Appeal has been dealt differently by the Constitutional Court in looking at the ideals in this Constitution. So you have the common law principles that you examine and reshape in line with the ideals of the Constitution and I suppose if my application is considered favourably this is basically that which I have to do. Look at those principles that exist in the common law, examine them, look at the Constitution and see how best one can reshape them in line with the constitutional imperatives. Well of course if you down load those values one has to also, in terms of the Constitution, develop not only the common law but customary law in line with those imperatives and yes, Mr Bizos, I think I am alive to the way the court has functioned and the principles that they are looking to, look at those vicarious liabilities, delictual matters, labour matters. For instance the way the Constitutional Court has dealt with the developments of our jurisprudence in labour, yes, I am alive to those.

Adv Bizos:

Thank you Chief Justice, thank you judge.

Mr von Klemperer:

Thank you Chief Justice. Judge Nkabinde could you perhaps clarify for me on your questionnaire, section eight on page three which are “Particulars of community and other organizations in which you are or have been a member for the past ten years” and you list five entities, one of which is the North West Parks Board but the others appear to be commercial enterprises. Dirapeng (Pty) Ltd, Golden Leopard Resorts, Invest North West and the International School. Are these commercial enterprises or are they community organizations? Can you perhaps clarify that?

Judge Nkabinde:

Thank you Sir. I must actually confess that I think I might actually not answered the questions very directly. I think only two, maybe one, the involvement as a governor of the International School could be the community institution. I should not have added those commercial institutions like those companies in which I was involved because they are not really community based so I might have just made a mistake when I rushed to answering that questionnaire. I apologise for that.

Mr von Klemperer:

You don’t have to apologise. I wanted you to clarify it. Have you have an involvement in any community organizations, broad based community organizations and if so could you perhaps tell us about them?

Judge Nkabinde:

Well I wouldn’t really say that I have been involved in community based organizations as such apart from just involvement in church matters where from time to time one would participate. I have not mentioned that in the questionnaire but I have been involved in matters involving the community where I have from time to time been asked to present papers to the community and to help them on legal issues that from time to time crops up. Like you know, the institution of the family advocate that deals with the community very closely from time to time and I have been involved to that extent but I do not have specific community institutions that I can really mention. I go from time to time, when I am asked, to present papers to the community, to a particular community on a particular legal issue.

Adv Nthai:

You know traditional leaders are born. They are not elected. In other words a king is born, a chief is born, we now call them senior traditional leaders and a head man as well is born. Do you think you would have taken a different view in that matter of Amahlubi?

Judge Nkabinde:

Yes. Thank you Adv Nthai. Yes of course I think had to take a different view because the issue there, if you fully remember, does not really relate to the question of succession to the Chieftain chief. It is with the statutory appointment of the Headman for that particular community which happened to have been part of the Amahlubi tribe. That community lived in a trust area which is not a tribal area but unfortunately by way of legislation that community was somewhat or the land in the community was somewhat statutorily made to be subject to Chief Zibi and the headmen were appointed by him from time to time. You will remember the Viviers commission in the then Bophuthatswana government which grappled with these issues because of the continuing problems between the communities in the trust areas and the tribe and I dealt with the issues in the judgment trying to ensure that the community there in the trust area were not necessarily members of the tribe and could not in terms of the Constitution, these subjected to the custom and practices of the Amathlubi tribe. So I dealt with that from that angle and it is not strictly speaking a question of succession to Chieftain Chief as such and I don’t believe in terms of the Constitution now as we look at it you can interpret the authority of the Chief to be meaning that those people must just be subjected to the customs and practices of the Amathlubi’s when you have you have such diverse communities, people from different communities in that very trust area. That is how I dealt with the judgment.

Adv Nthai:

But the issue was also about elections.

Judge Nkabinde:

Yes.

Adv Nthai:

I mean that fellow was elected and you know according to the evidence at the funeral it was announced that this fellow has now been elected. That is what I am dealing with.

Judge Nkabinde:

Yes.

Adv Nthai:

Do you think a headman can be elected in terms of tradition ….

Judge Nkabinde:

Well in terms of tradition of course you don’t have that. I think this is what the tribal authority was insisting upon and saying that the Chief had a prerogative to appoint and yet he had informed the people that there will be elections and after the Viviers commission people were given an opportunity to elect their headmen in those areas and I think, as I said, in light of our constitutional imperative it is proper for those people to elect their leader.

Judge Langa:

You seem to be re-arguing a case here. Are we through with that?

Judge Nthai:

Yes, thank you.

Judge Langa:

Very good.

Adv Seligson:

Thank you Chief Justice. Judge Nkabinde I have asked this question of some of the other candidates today and I would be interested to hear your views. As you are aware, when it comes to constitutional remedies the Constitutional Court can, in matters involving government inaction or action which infringes rights or is alleged to infringe rights under the Bill of Rights, can grant a declaratory order, declaring the rights of the individuals involved or in appropriate cases it can grant a structural or supervisory interdict. Have you got any views on the appropriateness of the Constitutional Court issuing an order like that which requires the government to report back to the court what has been done?

Judge Nkabinde:

Thank you Sir. I think there are a number of such judgments that the Constitutional Court has passed and I think correctly so. What comes to mind now I think, if I am correct is the recent pharmaceutical case, Clicks case which has just been passed by the Constitutional Court. I think also probably the Grootboom which deals with social-economic justice. Modderkuil judgment as well on the right to the squatters on the one hand and on the other hand the right to land owners or property rights. Yes, I think some of those judgments do echo that which you say.

Judge Seligson:

What is your view about the limits or how does one solve that tension between deference to the will of the Legislature and the need to enforce the Bill of Rights?

Judge Nkabinde:

I don’t see that as a problem because I think the starting point I think we should all appreciate is the Constitution is the supreme law of our country and the Constitutional Court is enjoined, not only the Constitutional Court I suppose, the High Courts, the Supreme Court of Appeal and all other courts to respect the supremacy of the Constitution and I think it is the duty of the courts and the Constitution in particular to direct the Legislature where those values in the Constitution have been infringed. I think the Constitutional Court can give a directive and a direction to the government with regard to those instances where the rights, the values in the Constitution, seem not to be protected.

Judge Seligson:

Yes, thank you Judge.

Judge Nkabinde:

Thank you Sir.

Adv Nthai:

Just a last question. You were a state law advisor. What were you doing there? Were you drafting legislation, what were you doing?

Judge Nkabinde:

Thank you Advocate. Yes, when I started working we drafted legislation, advice in different departments and my responsibility entailed drafting legislation, yes.

Adv Masutha:

Judge I am trying to get a sense of what is it that is different that you are bringing in case you are appointed to this position to the Court. I must say that it is quite fascinating to listen to the, I almost said interrogation from Adv Nthai on your judgment earlier on the customary law issue. Do you have …to what extent have you been involved or been exposed to customary law, be it as a practitioner or judge or in any of the other capacities in which you have interacted with the law. I just want you to elaborate more. Is that the only case that comes to mind or are there other cases you have had to apply customary law or interpret it?

Judge Nkabinde:

Adv Masutha I think we do from time to time get applications especially with regard to, you know, burial rights. They do crop up from time to time you know where you find a man who has married two or three women customarily, dies and you have those competing rights of the customary wives and maybe the civilly married wife and the question of burial comes in and time to time you do have those kind of applications coming to court as to who of those women have a right to bury the deceased. Also in terms of where should this deceased be buried if those people live in different locations. Those do crop up from time to time but I must say now with the development in terms of the fact that you don’t really find many people, especially in the community in which I live now, you don’t really find many people marrying two or three wives so we don’t have a lot of those. But we also do not really have a lot of customary issues coming to the High Court for determination. My background as you probably agree, obviously I know customary very clearly. I think with the knowledge of the customary law, the practises and customs, especially of the Tswanas, to some extent I do also know the Zulu traditions, customs and applications because I have studied the Zulu traditional law very closely. I think that will also bring some sort of a contribution to the Constitutional Court because you know the institution of traditional leaders in terms of the Constitution is recognised and obviously the issues relating to customary law. We have to uphold the customary law as long as it is in line with the values enshrined in the Constitution. So that knowledge is important because you will know what you are dealing with when you try to develop that law because it is not static like the common law. It changes from time to time so I think that knowledge, limited as it may be, will be of value to that court when we deal with such issues if they do crop up.

Adv Masutha:

The second and perhaps the last question. Obviously to get a balance I am also equally keen to hear more about your exposure to commercial work focussing on a specific aspect of it and that is linking it to the earlier issue of access to court given the fact that the majority of our people find it quite unaffordable to approach the courts because of the prohibitive legal costs and so on. Is there any intervention that the courts through their judgments can make to make the law more simple and more accessible especially to those that may not afford to hire expensive, you know, legal counsel and so on to assist them in litigation. I am raising this because I think that on the side of government the classical example is the recent National Credit Bill which seeks to try and bring some kind of protective measures for those who may be victims of, unwitting victims of some form of getting a raw deal from the commercial environment because of ignorance and so on. To what extent can the courts play a similar role to come to the avail to those who cannot afford legal costs?

Judge Skweyiya:

Let me say this, Chief Justice, that I would have been surprised if it was otherwise.

Adv Nkabinde:

I am not sure whether I will be able to answer the question in terms of the role of the court but you probably appreciate the fact that to some extent the courts are unstrung by the very rules that are applicable right now. We do now have some legislation. For instance in the Labour Court the way that court operates, ordinary people do have access to that court. There are a certain sort of prescribed forms. They are not really very helpful when they experience in that court because sometimes litigants don’t give detail in the forms but they do help ordinary people to go to the court, be assisted by the Registrar, completing that form and having their matter be brought up to the court. The pre-trial conference matters where the court intervenes from time to time and say let the litigant come, go to the office of the Registrar or sometimes the court asks one of the advocates appearing to assist the litigant and I have seen that happening when we request advocates and attorney in court to assist people who are not legally represented by giving them advice, by helping them to complete those forms and bringing matters to court so that the court can appreciate what the real issues before people are. At the moment you also have the Prevention of Illegal Evictions from Unlawful Occupation of Land (“PIE”) Procedures when in cases of evictions for instance the court does play a very important role there. Sometimes people don’t have resources to approach the court but I think from time to time the court makes sure that people have been warned, given an opportunity to respond and then to state their situation and I think you see from the recent judgments of the Constitutional Court in the Jaftha matter where Justice Mokgoro indicated that the provisions of Section 66 of the Administrative Court Act is invalid and it should be amended so as to include those requirements for consideration but the court should look into before people are being evicted from their properties I think in line with the PIE also the Promotion of Administrative Justice Act (“PAJA”) rules which are I think in the process of being put on the table of the Minister. I think those rules will definitely assist ordinary people to access the courts because they are certain notices and forms that are being prescribed to be followed.

Adv Masutha:

Finally I tried to collapse two questions into one, I think I will have to ask the third question. What can you tell us about your exposure to commercial work? What areas of commercial work have you, I have heard a lot on the labour side but other areas if you could tell us more?

Judge Nkabinde:

Well I think I have dealt with a number of matters. For instance you know matters involving companies, liquidations and you know, like for instance in motion court work you get a variety of commercial matters that you deal with you know from almost every week you deal with a lot of commercial matters in motion court. In the High Court where I am appointed you would understand it is a very small division of course. One cannot compare that with the kind of exposure that one would get in a busy High Court like Johannesburg where you have a vast number of commercial issues coming in front of the court but I think that through the Motion Court that one handles from time to time you get exposed to commercial matters.

Adv Masutha:

Thank you Chief Justice

Mrs Camerer:

Judge Nkabinde you seem to have had an extraordinary busy year. Since May you have been acting on the Supreme Court of Appeal and then I see that you took over the chairmanship of the Rules Board and also … which you indicated when you first responded to questions, you have more or less completed your work. There will be a report at last or some rules because there has been a lot of aggro about the delay going on. So you seem to have a huge capacity for work and you seem to get things done, judging by what you said there. Also you were co-opted to the Heads of Courts sub committee on racism and sexism within the Judiciary so you have been part of that as well. Perhaps you would like to say, … I mean there is no doubt you have got this enormous capacity for work but could you just indicate how is it you manage to get the Rules Board sorted in such a short time because I think you know the professions have been really waiting for something to happen and secondly do you have, just briefly, one or two ideas on how sexism and racism in the judiciary can be combated? Whatever you would like to say.

Judge Nkabinde:

Thank you mam. Let me start with the second question. I hope I remember the first one as I go along. Racism and sexism you know with the bigotry that we have from the past also appreciating the fact that we come from diverse backgrounds. We have been brought up differently. We look at things from different perspectives. Personally I think the starting point is to appreciate that we are different but we have to respect one another. I think respect is important because respect attracts respect. Disrespect attracts disrespect. I think if the starting point is to respect one another and to respect one another’s perspective, I think we will make a step towards that tolerance that we expect from all of us in the profession. My attitude is that we see things differently but of course if somebody says or does something to me that I don’t take kind to the first thing that one should consider doing is to approach your colleague or any individual and say I don’t really take kind to this kind of thing because sometimes we misunderstand people. You know we look at things in a manner that seem to say you are being insulted when that person did not really mean it so I think at a certain point you go to the person and say I don’t take kind to this and more often than not if you of course if you respect the person, because approach is important. Approach is very important. People do apologise immediately and I think that is what we, all of us have to learn to do. Communicating. Having a frank discussion, open discussion about how we feel about the way we are being approached and I think also in the judiciary with the issues that we are grappling up with in racism and sexism, if you sit together, close the doors and talk about this issue in an open manner, I think, yes we should be able to solve the differences amongst ourselves. In our committee we have made certain suggestions which I think I cannot divulge now. I don’t have permission from the Chief Justice to do that but I think the problems are surmountable. I think if we sit together as colleagues, look each other in the eyes and talk about these issues we will be able to resolve our problems. On the first issue mam, let me just remind myself what the question was.

Mrs Camerer:

I asked you about the Rules Board

Judge Nkabinde:

Yes, the Rules Board. It has not been easy. Actually when the Madam Minister approached me I was not sure whether I was going or coming and she actually almost invariably didn’t request me but told me that I should chair the Rules Board. I said to her I will give you a ring the following day. Most unfortunately the first thing in the morning Mr Labuschagne phoned me and said I am faxing you an appointment letter. I think he is here he can give credit to that. I was almost dumbfounded but I said well OK I will accept the fax and that is how I accepted the appointment. Of course not that one is running from challenge and responsibility. The point is you agree with me that the Labour Courts are very busy. One sits with a lot of work there and I was also preparing myself to finish my judgments in that court to prepare myself to face the challenge from the Supreme Court of Appeal. I had all these things in mind. We were busy at that point in time when the Minister phoned me deliberating on the racism and sexism issues. We were about to finalise or actually to prepare the report. I was not sure whether I was going to do justice to the Rules Board because I also had knowledge about the problems that I had been facing at the Rules Board because of my involvement in the co-ordinating committee in the Justice system. You might have seen that and I was not sure whether I would be up to doing that but because the Minister actually instructed me I accepted and well so far madam I think, I suppose with the grace of G-d I have managed to do that which I could do. I have been at the Supreme Court of Appeal now. As I said I enjoy my work. It is challenging and I try my best to grapple with all these things and to find time also to attend to matters of the Rules Board.

Judge Langa:

And also to read decisions of the Constitutional Court at the same time.

Judge Nkabinde:

And also to read the decisions of the Constitutional Court Chief Justice and the Supreme Court of Appeal of course as well.

Minister Mabandla:

It is just a comment following your answers to the questions relating to the Rules Board and to say that I really take this opportunity to thank you. I actually think that I actually was down on my knees and pleaded with you and I had had your profile and I knew that you would acquit yourself as well as you have done and thank you very much.

Judge Nkabinde:

Thank you mam

Judge Langa:

The Minister was down on her knees ordering you to do it.

Judge Ngoepe:

I hope you won’t mind but I just thought that I should contextualise some of the questions. In my view some of the answers that you gave because in my view you have been very very modest particularly you were asked … you were asked to comment about issues relating to customary law and the like and I thought perhaps I should mention something which will make people like Kgoŝi Mokoena quite happy to see a person like you there. You are a princess in your own right. You are born in royalty and you lived obviously in that tribe and being the daughter of a Chief or Chieftainess you know what is going on there and you understand the issues involved there.

Judge Nkabinde:

I do Sir.

Minister Hendricks:

Thank you Chief Justice. Judge Nkabinde you have got a lot of support for this position. I don’t know if you are aware of that? The National Forum of Advocates, the General Council of the Bar speaks highly of your capabilities, your experience. Of course the Judge President of the Labour Court nominated you. Even Judge Hendricks nominated you. Definitely highly respected by your own colleagues and you seem to have quite a lot of energy to do all the things that you are doing in terms of your form. That is just a comment from me. In paragraph eight of your questionnaire you state directorships that you still hold in some companies. Are these remunerated positions or what is the situation here?

Judge Nkabinde:

Thank you mam. No I mentioned that, earlier on I answered the question by the commissioner, I think it is Mr von Klemperer but as I indicated basically I used to be a director in those legal entities. I have ceased to be immediately after my appointment so since 1999 I ceased to be a director in those legal entities.

Minister Hendricks:

I guess you have responded to the part that says you have been a member of in the past ten years. That is why they are in this form.

Judge Nkabinde:

Yes.

Minister Hendricks:

I was asking myself why didn’t you mention it but I understand the question forces you to actually mention them. Chief Justice that is all that I wanted to raise. Thank you.

Judge Langa:

Judge Nkabinde thank you very much.

Judge Skweyiya:

Thank you Chief Justice.
The Constitutional Court has made reasonable effort to ensure this is a proper reflection of the candidate's interview with the Judicial Service Commission. However, the nature of the recording and transcription process means that accuracy cannot be guaranteed.