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.