The Remainder of Week One
1 - 5 July 1996
Petition by Concerned South African Indian Citizens who were represented by Beema Naidoo in the Court. Constitutional Court Library
Religious rights
A common refrain in the Constitutional Assembly (CA) when the going got tough was, “Let the Court decide.” But the Court was firm about which objections could be debated further. Advocate George Bizos counsel for the CA believed he was ultimately successful in “persuading the judges that the Court could not be used as a forum for interest groups to lobby for amendments to the text on issues where the text already complied with the principles” as he believed many of the objectors were doing. When Kurt Worrall-Clare, representative of the African Christian Democratic Party (ACDP), declared that abortion on demand was contrary to the law of Abraham, President Chaskalson firmly rebutted:
At this stage, whether we agree with you or not is irrelevant. If you lost the battle in the CA, we do not have the power to re-consider these issues here.
Justice Arthur Chaskalson
then President of the Constitutional Court
The ACDP also objected to the fact that the preamble to the Interim Constitution began with the words “In humble submission to the Almighty God”, but the new constitutional text did not. Justice Didcott retorted:
Why should it discriminate against Christians just because it omits certain words? We are here concerned with temporal sovereignty. It is not purporting to be scripture. It governs secular sovereignty and nothing else.
Justice John Didcot
Language rights
Arguments on abortion and religious issues were followed directly by complaints related to language rights. For the second time that day, a layperson got up to speak. A lobby group called the Concerned South African Indians had raised the money for retired headmaster, Beema Naidoo, to represent them in the Court around the status of the Indian language groups in the Constitution. They were recognised in the Constitution, but he wanted them to have the same official status as the 11 official languages. Armed with a petition of thousands of signatures, a well thought out case, but with no legal training, Naidoo impressively argued that an injustice was being perpetuated by not giving South Africa’s five Indian languages equal status to the other 11 languages. In defending the text, the CA argued that limitations to the equality clause were sometimes necessary. But all sides believed that Naidoo’s appearance was one of the most affirming moments in the process.
Protecting the Bill of Rights
One of the most dramatic moments in the whole case unfolded with the arguments presented by the Congress of Traditional Leaders of South Africa (Contralesa). They contended that rights entrenched in the Bill of Rights would undermine traditional patriarchal systems that were central to the character of customary law. They also contended that there was no role for traditional leaders in local government. Two of Contralesa’s senior members, Inkosi (Chief) Mwelo Nonkonyana and Inkosi Sango Patekile Holomisa, who were also advocates, argued the case. While they arrived in Court in the morning of their appearance in suits and ties, they arrived back in the Court after the lunch break in their traditional ceremonial attire of animal skins, carrying shields and entering the chamber barefoot. The surprised audience wondered if they were in fact in contempt of court as it would have been in the past. The amakhosi (chiefs) later told the media that President Chaskalson had agreed for them to appear in this way because they were acting in their capacity as traditional leaders rather than as advocates.
During their presentation, Justice Mokgoro, one of the two women judges, entered into vigorous debate around interpretations of the custom of paying lobolo (bride wealth) and the centrality of patriarchy to traditional law.
Strategically, Advocate Marumo Moerane replied on behalf of the CA. While he acknowledged the complexities around the role of traditional leaders in the Constitution, he argued forcefully for the right to gender equality:
You cannot have a situation where certain people are placed beyond the protection of the Bill of Rights. Everyone is entitled to them.
Advocate Marumo Moerane
Administration of Courts and Labour
In an issue that was to become highly topical over the next years, Advocate Wim Trengove alerted the judges to the fact that the Judicial Services Commission (JSC) was likely to include a high proportion of politicians – 15 out of 23 commission members. Justice Mahomed retorted indignantly that, “The whole idea [of the JSC] was to get away from political control as in the past where judges were appointed by the Minister of Justice and the executive”.
The only issue we are concerned with is the Constitutional Principles. The Constitution Principles demand judicial independence. We say it is not necessarily an ingredient for judicial independence that there be no political input.
Advocate Wim Trengove
The focus moved to whether the Constitution adequately protected the independence of the Attorney General and other watchdog bodies like the Auditor General and the Public Protector as had been stipulated by the Constitutional Principles. The question raised was what confidence the public could have in these positions if a simple majority could fire the officials? Advocate Moerane dismissed the objection as the affair of only a single party, the DP. President Chaskalson, all too aware of how the judiciary lacked independence and protection in the past, and wanting to ensure that these bodies were adequately protected, insisted that the issue be given greater consideration:
If officials can always be removed from office by a simple majority and do not have security of tenure, they are not independent of the majority party.
Justice Arthur Chaskalson
then President of the Constitutional Court
The passionate debate that followed, cast further doubt for the CA team if their arguments had found favour with the Court. “The difficult questions that were put to members of our team … did not augur well for the position we were defending,” admitted Bizos at the end of this first week. They began to suspect that the Court might decide not to certify the Constitution first time round.
