1

Gcina Malindi Constitutional Court Oral History Project 20th December 2011 Int This is an interview with Advocate Gcina Malindi, and it’s 20th December,

2011. Gcina, thank you so much for agreeing to participate in the Constitutional Court Oral History Project, we really appreciate it.

GM It’s a pleasure, Roxsana. Int Given that this is an oral history and I’ve not had the opportunity to interview

you before, I wondered whether we could go right back, if you could talk about early childhood memories, in terms of growing up in South Africa under apartheid and where you think your sense of social justice really started?

GM Roxsana, I was born in the Free State, I grew up until the age of about seven,

staying with my grandparents who were farm tenants. And I think my sense of injustice under apartheid started as early as that. Because my grandfather would come home and complain about things that were happening on the farm between him and the farmer. And there was already talk about my uncles having to go to urban areas, like Johannesburg, and Vereeniging, Vanderbijlpark to start work, because that’s how things were, if they could be released by the farmer to go to work. So those things were beginning to imprint themselves in my mind as the injustices of the time. And then I moved over to the urban areas at the age of about seven, in order to start schooling, with my parents who were already in the Vaal area, Sebokeng, Vanderbijlpark area, Vereeniging. And my sense of how apartheid affected my life, the lives of my parents, started to be more clear to me at that stage.

Int I wondered in terms of the period that you were growing up in, what were the

key political events and how some of this legislation had affected your parents?

GM At the time that I joined my parents, which was about 1967, and then I started

school in 1968, here, in the Vaal Triangle, my parents were not regularised. At the time they required to be endorsed to live in urban areas, and they didn’t have the requisite Section 10 requirements for the Influx Control Act of the time. So that was the first impact that I felt coming to an urban area where my parents would either be arrested for not being regularised, not having the permits to live in an urban area. Or having to run away from the police on a regular basis, which was the life of many other black people in black urban areas. So that was the first law to me that had this impact that apartheid was unjust. But of course I also went to school under the Bantu education laws, and it did not take me long to realise that my schools that I went to were inferior compared to the schools of white children in the towns of Vereeniging

2

and Vanderbijlpark, which I had an opportunity to see, because my mother was a domestic worker. I would go along with her from time to time and saw the different lives, black and white.

Int I’m also curious in terms of pass regulations, what your memories are, if any,

of your parents having to carry a pass? GM They are all unpleasant because, as I say, when there’s a police raid, your

parents run away. The best thing was to run out of the house onto the streets, so that when the police get into the house they only find the children and we can say the parents are not here. Or if my father is accosted in the street by the police, and arrested, and then we get messages, he’s been arrested and my mother has to go to the police station to pay the fine or pay the bail, because then their appearances will be…usually the arrest will take place on a Friday, and then the court appearances will be on a Monday. So get to the police station in time on Friday, secure my father’s release for a court appearance on Monday. And I became aware of the endorsements in the passes, in the pass books that they carried, and after a few arrests without being regularised and then you are endorsed out of the urban areas. So that was the history, when people will tear out the page in which the endorsement is made to be out of the urban areas. That happened to my father several times. And of course the next time they inspect their pass book, they will realise that there was a page missing, and they would know automatically that it must have been the endorsement to leave the urban areas. So that was my experience, on a personal level, of my parents’ harassment and arrests. And of the fifty percent other people, black people, in the areas in which I lived, half of whom were not legally in the urban areas and that was their life as well.

Int In terms of having to make a transition as a young child from a rural area,

living with your grandparents, to an urban area, and also to live in a township as such, I wondered what your experiences and memories are of that period?

GM As I say, I was beginning to see things at the age of six/seven, when I left my

grandparents. In fact, I was beginning to be trained to offer labour on the farm, because that was the rule, you’re old enough, and you’re not at school, you must start labouring on the farm.

Int Is that a rule from the white farmer? GM From the white farmer. So in order to remain on the farm, you’ve got to offer

services to the farm owner, to the farmer, and I was beginning to do that at the age of six/seven, working the fields, etc. Then there was that transition, coming to a township and as a child I was excited, I was going to start schooling. And I started schooling about a year later than would be the norm, so I turned eight in the year that I started school. But also the harsh reality of

3

urban life struck me. Although on the farm my grandparents were farm tenants, the quality of life, maybe for a young person like me was better. We never went without food and there were no…poverty was not sort of in your face. And then I came into urban areas, and poverty was in my face, not only from a personal experience but from observing neighbours where although the unemployment rate was not as high but there were many people who were unemployed, and those who were unemployed it was mainly because they were not legally in the urban areas, so it was difficult for them to get work. And poverty was there. I mean, it was for the first time that I’d go to bed without having had a meal because my father would either not be working or having been fired because he had been arrested the Friday before, could not go to work on the Monday or the Tuesday until his release. And then the employer says, well, you lied to me and said you were regularised, you were legally in the urban areas, and I’m not permitted to employ illegal people. And then he’ll be fired. So he’ll be out of work, we will suffer as a result. That was how things were. And there were many people in worse positions as neighbours, as people in the community generally.

Int Gcina, I also wondered, in terms of political understanding, at what stage did

you become politically aware, perhaps about the banned ANC, etc., and did that come from your family or did that come from the community, or your peers?

GM It came initially from school when I was at primary school. I think when I was

in standard four, which would be grade six these days. I started learning about people like Mandela, teachers speaking to us in hushed tones, but saying, don’t repeat this to your parents because I’ll be arrested. And then I realised there was something like that and then 1975 I started reading newspapers, and then I realised that there was a political life out there and that Mandela was associated with the ANC. Although information about the ANC and other banned organisations was restricted. I could pick things from time to time in the newspapers. And then the community generally, those who were involved would speak openly, but were not involved anymore because of the repression in the Vaal, in particular, from 1960. Then I began to learn that there was the ANC and the broader political struggle. And then mainly into 1976 with the Soweto uprising and then I became politically conscious and started being politically involved.

Int I also wondered in terms of 1976, what was your understanding of it, and in

terms of solidarity how did that influence you?

GM It did because it was the language issue, it was Afrikaans as a medium of instruction. And we had also been told in 1975 at the end of the year, at the assembly, by the principal, that from next year you’ll be learning half your subjects in Afrikaans. There were grumbles and grumblings and the principal said, there’s nothing that can be done about it, I’m just informing you, be

4

ready, don’t buy books in the following subjects in English, rather come to school so that we can tell you what the prescribed books were. And the older boys were beginning to register their protest, but they were not an organised formation. And teachers were speaking because they themselves were going to have to now teach in Afrikaans, a language that even they were not proficient in. So they were also grumbling. So I picked up that Afrikaans was being imposed and it’s because the National Party wants this control over black people. So it was all rudimentary political introduction to politics in South Africa. And of course 1976 happened, and although the Vaal was not organised in terms of student bodies or even political organisations, the newspapers were freely reporting on what was happening. I was reading a lot of newspapers, and I started making trips to Soweto to attend funerals, commemoration services, etc.

Int And this was at Regina Mundi? GM This is at Regina Mundi, and funerals all over Soweto depending on where the

massacres had taken place or individual students had been killed generally. So that was my introduction to politics. And then in the Vaal we started forming organisations but being careful about not being associated with politics. And one of the first organisations that I belonged to was the Vaal Youth Crusade, led by a person who’s now a priest. So we could say, look, we are a religion based organisation, we are not a political organisation. But they quickly saw through that. And Mandla Sibeko, who was the leader, was detained for a few days and released, and they started observing us as well, but by that time, 1977/’78, even the Vaal was beginning to organise itself. There were more students who were organising themselves into political organisations. And the Azanian People’s Organisation, Azapo, was beginning to organise in the Vaal, so I would say, 1977/’78 political organisation started in the Vaal again and I became involved.

Int I’m also wondering in terms of political involvement, at what stage was your

first experience or brush with the Security Police in terms of detention? GM My first detention for a day was in 1976 around September, but it was

because I had written a letter to the editor of the world, about the continued massacre of students in Soweto, etc. But the letter did not get to the newspaper, it was intercepted because I’d asked a fellow student to post it, who had panned to have a brother-in-law who was a member of the Security Branch police. So the letter was intercepted, and then the next morning when I was about to go to school, the Security Branch police arrived and picked me up. So that was my first detention, and I was released in the afternoon of the same day. So that was 1976. And then from 1979, then I was then continuously detained for short periods, either because I and others had been involved in the organisation of the June 16th commemoration services, or March 21 Sharpeville Massacre. September 12th Steve Biko day, etc. So they

5

will either detain us before the day or after, and it wasn’t long spells. It was maybe for a few days or a week and then released. Usually they will detain us a few days before the commemoration and release us a few days after the commemoration, just to make sure that they disorganise the organisation of the commemoration service. ’79, ’80, ’81, and then ’82 I was detained and charged, so I stayed in detention for about three months, and then we were charged for sabotage and we got suspended sentences. And then 1984 was when I got detained and charged in the Delmas Trial, convicted and sentenced, but fortunately we won on appeal as Gilbert might have told you, and ja…so those were the two major spells of detention and arrest, 1982 and 1984.

Int I wonder whether you could talk more about the Delmas Trial. It’s a very

important trial in this country and I wondered how it played out for you? GM It was an important trial because it was not just about the twenty-two people

who were arrested. As you might know there were over nine hundred co-conspirators listed. And basically it was a UDF trial because if we had been…well, in our analysis their plan was, if we get convicted then it lays the basis to arrest and charge the other nine hundred co-conspirators. So that would have destroyed the UDF. And how the trial affected me personally? I don’t know, I wouldn’t say much, it was a difficult period obviously, I was detained in September 1984, so that’s about seven, eight months of solitary confinement.

Int Were you tortured besides solitary…? GM Ja, I was tortured and I had been badly injured on the spot, the day of my

detention, on the 23rd of September, and the injuries…I don’t know what the numbers are for the vision on my right eye but the vision is impaired because I was shot on the eye with a rubber bullet. So it was eight months of solitary confinement, and then in June 1985, I was served with the indictment with twenty-one others. So the trial started. I think I had personally political strength to know how to survive detention and the impending trial, but it helped a lot that there were senior UDF people who had been in and out of detention, and Terror had been to Robben Island already. And he brought the strength that we all needed in the circumstances. And the fact that we had an exceptional team of lawyers defending us was important because they had been involved in treason trials before and they associated with the cause for which we had been detained and charged, and it made a further difference in how we survived the three, three and a half year trial. And going beyond that, after we were sentenced, considering what we had expected and what our lawyers had expected we’d be sentenced to, it was a relief, so to speak. I was sentenced to only five years, and I thought five years was nothing, I’ll be out in a short period. And the highest sentence was twelve years, which was Terror Lekota, who was also relieved and excited actually, because he had expected

6

over twenty years and so on. So we all knew we’d still come back and have a life, so to speak. And at the time we were more or less confident that the struggle was taking a new face and that we might either come back, because freedom has been attained or that we’ll come back and it won’t be too long from then before freedom is attained. So as difficult as prison might be, we all survived. I survived, but it was a difficult period because the country was on fire, basically, and the methods employed by the apartheid regime at the time and other political organisations, specifically the IFP, was such that we were constantly worried about what will happen to family members out there. But we were pleased, none of us had any family member being killed while we were in detention or while in prison.

Int I’m also curious, when you started serving your sentence, did you serve it

immediately on Robben Island? GM Yes. I went immediately to Robben Island. We were convicted in November

1988, sentenced in December, I think around the 13th of December, and then we were taken to Robben Island in January the following year. We spent Christmas in Pretoria prison. And then December 1989, our appeal came through and we had succeeded. So we were back. And 1989…but by then the writing was on the wall, so basically when we left Robben Island, we could confidently say to the other comrades, we will see you in the new year because you’ll also be out. And then that’s what happened. Then came February 1990, and the year thereafter every Robben Island prisoner was released.

Int Just coming back to the Delmas Trial, you would have at that stage met

people like Arthur Chaskalson, Gilbert Marcus, I’m wondering whether that, in any way, motivated your study of law or whether that preceded that?

GM It had always…well, not always…at least when I started becoming politically

conscious, I wanted to study law because I thought a lot of people get detained, they need legal representation, I must study law in order to play that role. But of course having been arrested, having been on trial for over three years, and I was inspired more by seeing people like Arthur, George, Gilbert, Karel Tip, Zak Yacoob, defending us and the attorneys that were involved. So that did inspire me more to want to study law and so I started studying law on Robben Island. So when we arrived I registered for my first subjects through Unisa, and then when we got released the following year, then I registered full-time at Wits to continue my law studies.

Int And the time that you were interested in becoming a lawyer and I know that

you said you could represent people who were detained, but did you consider about the impact of serving in a society that was legally unjust, and how you would negotiate that?

7

GM No. Look, as I say, basically my focus was, I want to study law so that I can

represent political detainees and prisoners. So clearly my focus in law would have been directed mainly to that. And this occurred to me in and around 1978 when George Bizos was representing Khotso Seatlholo, whose trial was conducted in Vanderbijlpark. So I could see how the system works, how the justice system work and I could see George representing someone whose case was hopeless, but bringing hope to the whole process to ensure that he doesn’t get the maximum penalty, etc. So that inspired me and I knew that it would be difficult to practise law in an abnormal society like the apartheid society. But my focus was going to be on political trials, etc. I had not worked it out clearly what impact it would have on my practice, but I admired those lawyers who were always there to represent political detainees like myself. I wanted to do the same for others.

Int So in 1990 when change did happen, what are your memories of that period? GM There was a lot of excitement because ultimately what we had fought for was

happening or about to happen. But it was also a period of great uncertainty because anything could have happened. The biggest fear of course was that we could be plunged into a full-scale civil war. And the signs were there. by 1991, ’92, it was clear that those who wanted to plunge the country into a full-scale civil war, if they had the resources, it could have happened. So it was a period of anxiety. For me personally, it meant considering leaving the country. Is it the time to leave the country, although the ANC had come back? Because the signs were not clear as to whether it will be a successful transition, or whether the ANC would have to go back to armed struggle. And on a personal level it became a very difficult thing to negotiate because that possibility had not been ruled out by the ANC itself. And that is why Operation Vula was there. And then when I had discussions with comrades who were involved and they sought a role for me in Operation Vula, I never was involved, but I was part of the discussions of being ready in the even that the whole transition fails. So it was a difficult situation where I believed that the transition must be made to succeed and also be ready to leave the country if it fails. And of course personal things come into being. I mean, my parents were there, although in the struggle you teach yourself to disassociate yourself at a personal level, your parents, your wives, lovers, children, or whatever. It still has to be a decision to take, that if the time comes, I’ll have to leave. And when you’ve seen people suffer, not because of you but because of the situation in which apartheid had placed you, it’s difficult to easily say, sorry, parents, I’m going to disappear again now into exile. So that period was not an easy period. So when finally the date for the elections was announced, then that was the first clearest sign that the transition is happening, there is no going back. It was after Chris Hani had been killed, and that moment itself created the greatest uncertainty as to the transition. Although progress had been made up to then, that was the moment when things could have happened. I mean, that’s the moment when everyone was saying, is it the

8

time to go back into exile and re-launch an armed struggle? And fortunately that whole thing was averted and then with the agreement on 27th April, 1994 as the election date, then the anxiety sort of ebbed a bit.

Int I’m also curious, as someone who was on Robben Island, in terms of the

tensions between exiles and Robben Islanders, and to some extent as well the internal activists who had remained in the country, I wondered, in those early days, what were some of the tensions?

GM The tensions were manifested clearly at the ANC conferences in 1991 it was

the Consultative Conference in Durban, and anyone who was at that conference could see the clear divide between the exiles and the internal activists. And that divide was because of the different cultures of engaging. Although internally we had accepted and some of us had been doing things knowing that what we were doing was mainly dictated by the ANC, but it was a different culture of engagement in the UDF, in the various structures, and we had accepted that the ANC is the representatives of the people of South Africa, or the main representative of the people of South Africa. Because of that understanding between the exiles and the internal activists, the comrades from exile just assumed that only they can be the leaders when they came back. And it was made clear at the Consultative Conference and at the subsequent conferences, when there was an insistence that the ANC is not going to dictate who gets elected into ANC structures, but that it’s going to be an open process and that some comrades from exile, as much as we adored them, were not going to be the leaders to lead the transition into democracy, and we had to bring in the internal activists. And I think everyone within the ANC acknowledges that it was a difficult period when they thought they could just transfer the leadership from into the country and they will continue as the true leaders of the revolution.

Int Gcina, I also wondered in terms of your actual legal development, you’d

started studying law on Robben Island. Once you were released, I presume you continued immediately?

GM Yes, I did. Int And what point did you then decide you wanted to do pupillage and join the

Bar?

GM My final year at Wits was 1994, and I knew immediately that I would love to be at the Bar. The question was just whether I should be an attorney first, to gain that experience of being on the ground, dealing with clients directly, or whether I should go straight to the Bar. And then eventually I decided I will go straight to the Bar, and I think it’s for practical reasons, to be an article clerk at the age of thirty-four then, thirty-four/thirty-five, was not going to be easy for

9

me or for people who were going to be my principals. And I thought, no, let me spare myself and the people who’ve offered me articles, the difficulty of having to deal with an article clerk who runs off to ANC offices to do political work instead of consulting and making copies of documents and making sure that pleadings get out and so on. So it was an easy thing once I had decided I’m not going to do articles. I did pupillage and…

Int Who was your Master? GM My Master was Danny Berger, and I asked him because he’s one of the first

people that I interacted with about studying law, etc., when I came out of jail. Of course I’d spoken to people like George and Gilbert. They all said, no problem, just tell us where you want to do them, and we’ll organise it for you. And then when I decided I want to do pupillage, Danny Berger was recommended by people like Karel Tip, who was George Bizos’ protégée and Danny was a Karel Tip protégée and so that’s how I got to work with him. A wonderful teacher and a wonderful lawyer.

Int It must have been very interesting to be at the Bar in 1994. GM It was interesting. I started in ’95 because I did pupillage in January to June,

’95, and then in July I joined the Society. It was interesting because the Society, or the Bar itself was undergoing change. It could not be insulated from what was happening outside. And then in 1998 it was the first time that the Bar had a real internal push for transformation in itself, and usually the Bar structures are run, and if there’s going to be any change, that change will be driven by senior members of the Bar. It was the first time that junior members of the Bar were driving change. And I got onto the Bar structures by 1998, so I’d only been at the Bar for three/four years, so it was a sign of the times. And it was interesting and that struggle continues at the Bar, and it will be a while before we can say the Bar has changed completely.

Int I’m going to come back to the question of judicial transformation but I’m

curious about the types of law; was it predominantly corporate or did you do other types of work? What sort of work did you do when you started at the Bar?

GM Look, having come to the Bar with a bias for activism, I wanted to be involved

in the areas of law where my activist background will act itself out. So I naturally gravitated to doing labour law as the main bulk of the work that I do, even now as an advocate, because the labour movement had been the biggest and strongest component of civil society under apartheid, part of the mass democratic movement, Cosatu. So my bias naturally was to do labour law, and because of the political activism, the Constitution became important to me, to say, I want to do as much Constitutional law as I can. So those were

10

the main focuses of my practice. Commercial law, I’ve not done, even now. Well, I can say, very limited commercial law.

Int I’m also curious, at some point you became involved in appearing before the

TRC on behalf of the Boipatong residents, and I wondered you could talk about how that came about and what your experience was of appearing before the TRC?

GM That came about because a lot of the opposition to applications for amnesty

came from the ANC desk. So the TRC desk will monitor who has applied for amnesty, whether the ANC should play a direct role, and the Boipatong Massacre was one of those where the ANC gave instructions to attorneys to say, we want to play a role as the ANC and we would prefer it if you briefed the following advocates to be involved. And that’s how I came to be involved in the Boipatong Massacre hearings. And of course the applicants were IFP members for amnesty and having seen the role of the IFP, certainly after I came out of Robben Island, 1990 to 1994, in resisting the transition to democracy and allowing itself to be used in that manner. So I saw it more of a political involvement in that hearing. And I did learn a lot about the process itself, the TRC process. But also about how the truth of what happened in Boipatong had not come out during the various inquiries before then. And the TRC at least presented the most credible forum for exposing what had actually happened, not only in Boipatong but in other areas as well.

Int I’m also curious, in terms of your criticisms of the Goldstone Commission and

it’s handling of the Boipatong Massacre, I wondered what some of your criticisms are?

GM The Goldstone Commission had adopted a too legally technical approach to

the investigations that it conducted. And as a result it allowed the Goldstone Commission to frequently come out with reports that were both critical of the ANC and the IFP, or the apartheid security forces. And I don’t know if that was the brief, the terms of reference. It wasn’t. But I think that was one of the criticisms about the Goldstone Commission. Secondly, the Commission did not have the investigators that would be able to interact with victims in a manner in which the victims would trust them. If I remember well, the Goldstone Commission consisted mainly of the investigators that were drawn from the prosecution agencies, the Attorney-General’s Office, mainly of those investigators that were thought to be less biased, discriminatory and so on, but they were not equipped to deal with communities like Boipatong, with communities from the hostels. And I think they lost then in a lot in obtaining and extracting a lot of information that could have put the Goldstone Commission in a better position to understand exactly what had happened then. For example, one of the aspects of the Goldstone report that was relied upon was the expert evidence about what people can see or not see at night. And a lot of people confronted with that report were easily discredited

11

because of the expert reports. But I think the expert reports were not taking into account what people were actually observing. And it became clear during the TRC hearings that not only the IFP played a part in the attack but that they were supported by the police and the army. Which the Goldstone report could not confirm because of the nature in which it operated. And I think through the TRC more truth came out of it, and even if it’s not the truth that may sit in judgments or reports, just engaging with the community and knowing what they underwent and hearing their testimony, placed one in a position where I had a greater appreciation of what happened there than any of the investigators in the Goldstone Commission.

Int I’m also curious, you were a student of law at the time that the Constitution

making process was underway. At Wits did you study Constitutional Law, did you have access to professors who discussed the Constitution making process, and what were your observations of that period?

GM I did study Constitutional Law at Wits and did Administrative Law. So teachers

like Etienne Mureinik were the giants at Wits on administrative law at the time. And I had access to people like Edwin. Well, that was the advantage of going to an institution at my age, having interacted with people like Edwin and Gilbert, who was still at CALS but already doing private practice as well. And I could speak to people like John Dugard. I didn’t know him personally but once he learnt who I was he was happy to go the extra mile to assist me. And it was a wonderful period. And at the time the Constitution was being negotiated and I was going to a lot of ANC workshops about the Constitution and getting report back from comrades who were directly involved in the various technical committees, coming back to report. So being a student of law and sitting in the ANC meetings where there were these reports back and engagements, it was an enriching experience. And there will be reports back about some of the difficult areas of Constitution making, not on a technical basis but in terms of the contents of the Bill of Rights, and I mean, issues like sexual orientation were difficult for the ANC, and it was very useful to be in those meetings where there will be reports about this. Our comrades who would report back but would not show too much enthusiasm about the inclusion of sexual orientation, and see the response from ANC members whose engagement on the issue was mature and progressive. And I think again, in the exile internal division about what rights constitutes human rights was clear. I mean, there was the comrades from exile, a lot of them did not appreciate the Constitution making process. At first they were concerned, we’re the victors, and we had to dictate fully, that it should not have been negotiable that there was going to be a Constitution in our terms. And there were comrades who did not believe that certain human rights issues must be smuggled through the back door, as they said, in order to legitimise them. So sexual orientation was critical. And the internal comrades in these report back meetings were clear about those things. Gender issues in the ANC, although there was always the gender desk, the women’s wing, and that internally the ANC was instrumental in the formation and revival of women’s organisations, gender issues did not sit

12

comfortably with other comrades. They believed that, like in exile, gender issues must be subservient to the main framework. Like the women’s wing was subservient to the ANC so they didn’t see a reason why under a Constitution you could have gender rights entrenched separately from the main framework of democracy, political democracy, etc. And those engagements were exciting for me. And comrades who had fought for those rights, gender, sexual orientation, etc.

Int I’m also very curious, when the Court was started in ’94, ’95, what your

observations were of the first Bench and the choice of the particular judges, etc.?

GM By then I was involved in NADEL (National Association of Democratic

Lawyers), and so with the first lot of judges of the Constitutional Court and thereafter, NADEL (National Association of Democratic Lawyers) wanted to play a role and NADEL (National Association of Democratic Lawyers) did play a role in ensuring that the judges that are appointed as the first judges and subsequently, are judges that have fully embraced the Constitution, and that going forward the jurisprudence that must come out of this court is a jurisprudence that ensures the realisation of the rights that are set out in the Constitution. And so we made sure that at every available opportunity when asked to play a role, we played that role. NADEL (National Association of Democratic Lawyers) to this day, will support candidates that we believe that will as judges uphold the Constitution and advance the rights that are entrenched in the Constitution. So we were pleased for our role that we played in ensuring, with others, that the court from the outset was led by people who had always embraced constitutionalism. Arthur Chaskalson, Pius Langa, and the others, and lately people like Edwin…

Int Edwin Cameron? GM Edwin Cameron. And they were all people who were associated with NADEL

(National Association of Democratic Lawyers), either as leaders or as members, or involved directly in the activities of NADEL (National Association of Democratic Lawyers) at the time. And so from 1995 to date, NADEL sees the court as very important…and the High Courts, because the majority of the cases dealing with constitutional issues start in the High Court to ensure that the process is a legitimate process and that the best judges are appointed in terms of what the Constitution requires.

Int When you said in terms of the first Bench NADEL was very interested in

ensuring that the correct judges were appointed, I wondered whether you could talk a bit about that process and what that entailed?

13

GM NADEL, as part of the people who were advising the ANC was involved in all of these technical committees, and so when the first justices of the court were appointed, those NADEL people had played…or NADEL associated people, or the people that we had faith in as people who would advance the Constitution, were involved in a lot of those committees. I mean, Arthur was there. George was there, although he didn’t become a judge. Pius was there as well. And of the justices, who else was there? Certainly those two. and then in our observation of the existing judges who would be best equipped to be the first justices of the Constitutional Court, Didcott, Goldstone himself, and to a certain extent Ackermann, because he had given a lenient sentence just before we were sentenced, on some comrades who we expected to get lengthy sentences, and they got away with three and four years and so on, so we thought, oh, he’s one of the progressive judges. But in terms of those members of NADEL and NADEL associated lawyers and judges, NADEL could make its recommendations and inputs when called up on to say, you know, the first judges of this court, who are the possible candidates and who in your experience, especially the people who were internal activists, who are the judges that are not suitable. And the writings of people like Edwin Cameron were very informative on which one of the judges were executive minded, which ones had not embraced human rights and so on. And so our role was, unlike now, was really of having the ear of people who were going to take some of these decisions. Whereas now with comments we are more involved in writing comments about judges.

Int I’m curious what the relationship between NADEL and the Judicial Services

Commission is? GM The relationship is one set out in the Judicial Services Commission Act, which

is the composition of who can sit on the JSC and there is an allocation of two seats, from legal bodies, and the BLA and NADEL, in the five-year term we alternate. So we have one member therefore two and a half years, and BLA takes over. So that slot, that’s the extent of the relationship that we have with the JSC. But of course there are more people than, NADEL people, there are more people that we can identify with than our own one in the slot allocated to legal bodies. So there is no relationship in the sense that NADEL can have a direct say, but we have a representative, either a NADEL member there, or a BLA member there. And I think it’s been a good relationship and also because of the submissions that we make, and then that relationship of, I think, the JSC, trusts the submissions that we make. Sometimes they don’t agree with the submissions we make but they know that they are principled submissions, so NADEL submissions are taken seriously, that’s the relationship we have with the JSC.

Int As a member of NADEL, and also as a member of the Bar, you’ve been a

keen observer of the court, and I’m wondering in terms of what do you think

14

are some of the challenges of adjudicating cases for this court in a transitional South Africa?

GM The challenges are that it is a small court and it is the apex court, so a lot of

litigants seek direct access to this court. Lately, at least, they start in the High Court, and then instead of going to the SCA, they still seek direct access on appeal to this court. So, what that does, which is a challenge, is that in this transitional period when there are so many issues that require constitutional interpretation and validation, the court is a bit removed because it’s an apex court and it’s a small court, and thinking about it, I think that if the court was able to be able to function like the SCA, where of the eleven judges, instead of sitting together, a matter can be heard, let’s say, by five judges, like in the SCA, it will help to deal with the matters that are urgent for adjudication by this court, rather than the route of the High Court, and then the SCA, and then to this court. I think it is a challenge because even the decisions of the High Court and the SCA require confirmation by this court. So with this court, with its role increasing, the number of case that they have to hear increasing, it means matters that come to this court are smaller and litigants are discouraged to take up matters up to this court, because sometimes issues become irrelevant after a year or two…not irrelevant but their impact and the effect is not the same as if there was speedy access to the court for adjudication and knowing what the issue is. And so I think what must be considered is whether the composition of this court should not be doubled so that we maintain the structure of the maximum number of…it’s a number higher than the SCA number hearing a constitutional matter, or splitting the court in such a way that any matter may be heard by at least five, so that the output of the court may increase.

Int So there is a quorum of eight? GM Of eight, yes. Int In terms of the emphasis on socio-economic rights, I wondered whether you

could talk about particular cases that have really interested you, and judgments that have been passed that have really made an impact do you think on South African society?

GM It has been a difficult area for this court and litigants. I don’t think there’s been

enough litigation on socio-economic rights so far. The right to housing is the main case that has come here and is the right that even the High Courts recognise and have given judgments in order to ensure that the right to housing is not undermined by government policy. And it is one of those rights that were key in their struggle against apartheid when black people had no right to own houses in townships or urban areas, and so on. And it’s a right that was crucial for the dignity of people to own their own houses and not be

15

at the mercy of the administrative bodies to throw them out at any time. The other right, and that has not been properly litigated upon here, is the right to education. And so personally I look forward to a case coming to this court to deal with the right to education, because I regard it as very important. The only litigation that has happened here on the right to education has been limited, especially litigation by bodies that want to maintain certain privileges. There’s now a High Court judgment in Gauteng, which has said that the school governing bodies do not have a final say as to admissions policy, etc.

Int Is this the Model C debate? GM The Model C school debate. But that was also a limited area on the right to

education, to give the department a little bit more say in admissions policy and the teacher pupil ratio issues. It’s very limited, it has not gone to the extent that it should have been litigated. But the Grootboom decision has gone a long way in terms of the right to housing. And then the right to health as well. I mean, it’s also been limited because all the TAC cases have been about HIV/AIDS and the right to ensuring that people who are affected have access to ARVs, etc. So it’s still a limited area on health. So that’s another area where there must be a holistic litigation on the issue and maybe what Minister Motsoaledi envisages in terms of the National Health Insurance may actually propel the issue to be adjudicated by this court, because one can anticipate that there’ll be challenges to the constitutionality of the NHI, and how it’s going to be funded, etc. And maybe it’s a matter that should reach this court.

Int In terms of your observations of the Court, have you noticed a change in

management or leadership style from the time Arthur Chaskalson was Chief Justice to Pius Langa, and subsequent, until 2009?

GM There has been change in leadership styles and I suppose every Chief Justice

has their own style. But it has not been so significant as to say there has been a change in the approaches of the court. In terms of how the court adjudicates, I think there’s stability in there. But there are issues of governance where the various leaders have handled them differently and I think the Arthur, Pius era, had been one of maximum cooperation with the department and government; not that they did not maintain their independence and the independence of the judiciary. And whereas with Justice Ngcobo, there had been a more visible and proactive drive from his side to put in place mechanisms to ensure that the self-governance of the courts is realised. And I don’t know how Justice Mogoeng is going to deal with that situation. Because from the outset the attitude of government has been that you must not let the judiciary too loose because otherwise they will become an arm of government which is so independent that there will be no relationship between it and the other arms of government. And government has therefore been resisting any self regulation by the judiciary. And I think we’ve now gone a bit far in advancing that objective of self-governance, or

16

self-regulatory powers. And within, of course, the confines of separation of powers, and personally I think self-regulation, or self-administration as in other jurisdictions they call it, is what should happen and that the judiciary’s independence will be signified not only by how they adjudicate matters but also by how they govern themselves.

Int This Court has been known for having a very diverse group of judges,

particularly the first Bench and subsequently, including people with disabilities as well as with gender issues as well. I wondered, in terms of judicial transformation being more than just demographics, judicial transformation being more broader, what is your experience as a member of NADEL, and also being at the Bar?

GM Our observation as NADEL is that there has not been a proper appreciation of

what transformation entails. As significant as demographics is in the transformation of the judiciary, we cannot ignore the fact that, that transformation must itself be qualitative. And sometimes it surprises me, and within NADEL as well the ANC surprises us when the whole debate about transformation has always been to ensure that with the…you must not only achieve transformation in form but you must achieve it in content as well. And I believe that the emphasis must be on the content because that’s where it matters most for the people who have been oppressed for centuries and decades under the National Party, that in order to realise those rights we must ensure that the judiciary is composed of people who would advance then the rights within the Constitution regardless of the race or gender. And that goes to other forms of deployment in government that the emphasis must be to ensure that the changes will be realised rather than the demographics. Then of course that contradicts…it fact it doesn’t contradict, it must be seen in the same light as equally…of ensuring that we get the demographics right. And the two are not mutually exclusive. They must be pursued simultaneously. But qualitative transformation must not be compromised by the imperative to achieve demographic transformation as well. And then of course when we say that, we then expose ourselves as NADEL to criticism, and we’ve had it from other bodies even within the progressive forces, that we’re making ourselves guilty of perpetuating the notion that whites are superior to blacks, because admittedly if for the judiciary you look at who are the senior practitioners and who are the senior judges until recently, it’s always been white people. But I think in principle we remain correct that the two must be looked at, at the same time, and we must not be too simplistic about getting the demographics right, but not getting the purpose and objectives of the Constitution and realisation of the rights entrenched in it compromised. And we must make sure that even amongst the most experienced and suitable of whom the majority will be white, we are able to find the ones who will assist and pursue transformation. And it’s not an impossible task, and it’s not an impossible task as well to find black and women candidates for the judiciary, that will be suitable, not only in terms of satisfying demographics but in terms of satisfying the need and imperative for transformation.

17

Int I’m also curious what you think have been the greatest failings of the

Constitutional Court? GM I have not applied my mind to that, and I don’t think there’s anything for me

that is clearingly (clearly) a failing by this Court. Int In terms of the Court’s greatest achievement… what have been the greatest

achievements? GM The greatest achievement for me, of this court, is that the court has been

entrusted with a function of being the custodians of the Constitution, and interpreting it in the fairest and most progressive way that it can. And I think South African society’s faith in the Constitutional Court, as the court that will ensure the protection of our Constitution is not misplaced. I think society’s faith is correctly placed in this court and I think the justices of this court have been able to demonstrate that as one of the three arms of government who…that has been assigned the task of upholding the Constitution, I think the court has succeeded in being that. And the only caution that I always have for myself is then that the court should not see itself as…that it is the last refuge in a democracy where there are threats to constitutional rights and so on, but the court has to be cautious that it does not…it is not perceived as the substitute for the executive. And the Constitution prescribes very well what the role of this court is and the judgments that have come out of this court on the separation of powers, first with the certification judgment, and the judgment of Ngcobo, I think, in…which case…the case about medical doctors and so on…that judgment, and Pius Langa himself in the Glenister case, I think the whole issue has been set out in the most accessible way as to what the role of each arm of government is, and I think the Constitutional Court has therefore been able to distinguish itself as the custodian of the Constitution, and I think that’s what the majority of South Africans want at the moment, that we have this Constitution and that it continues to be the foundation of our society.

Int I’m curious, Gcina, as my last question, whether you have any concerns and

fears for the Constitution itself and for the Constitutional Court, for the future of the South African society?

GM I do not, Roxsana. The future of this court can never be anything other than

what the Constitution says it should be. And the process of appointing justices of this court is a stringent process under the JSC processes. And of course the JSC constitutes of individuals and individuals are not infallible. And as NADEL we have experienced unhappiness with some of the decisions that the JSC has come to, but we always have faith in the fact that as long as people are involved in that process, they know that they have to act with integrity.

18

And that members of the JSC themselves are professionals mainly…I don’t remember any accommodation for lay people in the JSC, no, it’s all people in the field, in the legal field mainly. Teachers of law, other judges, legal organisations, so people who are there, though they are individuals, and some of them although they come representing certain constituencies, they themselves know that they have to act with integrity because they are practitioners in law, or in teaching, where they themselves must be able to stand and keep their heads up and with pride for what role they play in the JSC. So although sometimes the JSC decisions disappoint us as NADEL, we have faith in the structure, that it’s self-correcting, and that sometimes people approach things in the way that we as NADEL would not agree, but that in future considerations of appointments, our submissions and submissions of other people would have come through, and that they will be dealt with in the manner in which the best possible result comes through. And then I don’t think that we should fear that the future of the Constitutional Court is under threat, because at the moment, everyone, even including from quarters where the decisions of the Constitutional Court have been criticised, it’s been from people, let’s say, within the ANC, which is the ruling party, that if they wanted to do anything to directly undermine the Constitutional Court, they will do it in the processes of the JSC, they could change that Act. I mean, at the moment it’s within the ANC to change the Act, it’s still within the ANC’s powers to change the Constitution because they are not far off from the two-thirds majority, and there have not been steps that I’m aware of to change the Constitution in order to deal with the judiciary, or to change the selection processes in terms of the JSC Act in order to influence those areas. And I think we are still on firm ground, despite the unfortunate statements that we have heard recently.

Int What do you think of the review of the Constitutional Court cases? GM I’ve heard about that, and then when it was first mentioned the Minister of

Justice was going to release a statement, clarifying that statement; it’s either he did not or I missed it. However I don’t see it as sinister because that’s what we did under apartheid. Edwin Cameron and other academics reviewed the decisions of the judges under apartheid to see which ones were pro the death sentence, which were not pro the liberty of the individual, which ones were anti-Constitution, which ones were executive minded. I think it’s an exercise that anyone may undertake. The ANC may undertake that process if they so wish. It depends on the objective for undertaking that process. In my view, and I hoped that that’s what the Minister would say, and I haven’t seen his statement, would be, we have a Constitution and the Constitutional is pro-transformation. There are socio-economic rights, which are entrenched, and the judgments in our review have demonstrated a lack of understanding in terms of what needs to be achieved in terms of ensuring that these rights are achieved. And therefore if we need to change any law or the Constitution to ensure that these rights are achieved, I think it will be a proper objective to say, the right to education, seventeen years down the line, or twenty years

19

down the line, we have not made adequate strides in ensuring that everyone has access to education. And there’s been little litigation on the issue or where there’s been litigation the outcomes have not been favourable to advancing these rights. And therefore we are going to make sure that the law is more direct in giving access to education, or giving right to land and so on. It will be a legitimate objective. But if the objective would be to say the following judges have delivered judgments that are anti-government, and therefore we must find a process of removing them, then that won’t be a legitimate objective. On the face of it I have no problem with any institution, any body, saying, let’s sit down and assess the judgments of the court. That’s what we do on a day-to-day basis when there’s a vacancy in the ConCourt, we say, who are the potential candidates? Where are their judgments? It’s through their judgments, then we can assess whether they are suitable or whether we’ll support them or not. It does cause a bit of nervousness if the ruling party says it wants to do it. And I don’t think it poses a threat. I think it’s something that anyone could undertake.

Int Gcina, I’ve asked you a range of questions, I wondered if I’ve neglected to ask

you something, which you think should be included in your oral history? GM Nothing really, because as I said at the beginning, I’m really here…if there’s a

NADEL perspective that I could bring, and I think we’ve dealt with that from NADEL’s engagement in the Constitution making process. Which started as far back as the Harare declaration and the ANC’s constitutional committee when it started meeting in Zimbabwe. NADEL was sending its delegates there to assist in those processes. Albie Sachs interacted a lot with NADEL in ensuring that those meetings NADEL attended. And our role as NADEL, as I said, is to assist in identifying the most suitable candidates for the court, and the judiciary in general, and our approach has been, and still is, a non-racial approach and our view of what transformation entails is both qualitative and quantitative. And that’s what the Constitution says, in seeking the suitably qualified candidates, must bear in mind the issues of race and gender, they complement each other, they are not mutually exclusive of the other or each other. And that as NADEL we are proud that we have continued to play a progressive role in the judiciary, and that we will continue to do so. And the candidates that we have supported have never felt under threat, that because they were supported by NADEL they have to appease us. They’ve known once they are appointed, they discharge their duty as judges, and that we will continue to play that supportive role to them if and when they require it, and that’s been our role.

Int Thank you so much, Gcina, to make this time and for lending your perspective

on NADEL in its relationship to the Constitutional Court. GM Thank you very much, Roxsana, I hope it was helpful.

20

Int Absolutely, thank you.

Collection Number: AG3368

CONSTITUTIONAL COURT TRUST ORAL HISTORY PROJECT

PUBLISHER: Publisher:- Historical Papers Research Archive

Location:- Johannesburg

©2014

LEGAL NOTICES:

Copyright Notice: All materials on the Historical Papers website are protected by South

African copyright law and may not be reproduced, distributed, transmitted, displayed, or otherwise published in any format, without the prior written permission of the copyright

owner.

Disclaimer and Terms of Use: Provided that you maintain all copyright and other notices

contained therein, you may download material (one machine readable copy and one print copy per page) for your personal and/or educational non-commercial use only.

People using these records relating to the archives of Historical Papers, The Library, University of the Witwatersrand, Johannesburg, are reminded that such records sometimes

contain material which is uncorroborated, inaccurate, distorted or untrue. While these digital records are true facsimiles of paper documents and the information contained herein

is obtained from sources believed to be accurate and reliable, Historical Papers, University

of the Witwatersrand has not independently verified their content. Consequently, the University is not responsible for any errors or omissions and excludes any and all liability for

any errors in or omissions from the information on the website or any related information on third party websites accessible from this website.

This document is part of the Constitutional Court Trust Oral History Project collection held at the Historical Papers at The University of the Witwatersrand, Johannesburg, South

Africa.