Justice John
Didcott
"Parliament has the power to pass the statutes it likes, and there is nothing the courts can do about that. The result is law. But that is not always the same as justice. The only way that Parliament can ever make legislation just is by making just legislation."
Lawyer, judge, and one of the first justices appointed to the Constitutional Court, Justice John Mowbray Didcott was known for his support of human rights throughout his 23 years on the bench, both during and after apartheid.
Sunday Times and General Council of the Bar of South Africa
Early Life and Career
John Mowbray Didcott was born in Durban on 14 August 1931. He matriculated from Hilton College in 1948, and thereafter studied at the University of Cape Town, where he obtained a Bachelor of Arts in 1951 and Bachelor of Laws in 1953. Didcott was the secretary of the Students’ Representative Council from 1951 to 1952 and the President of the council from 1952 to 1954. He also served as President of the National Union of South African Students from 1954 to 1955.
In 1953, he was awarded an Abe Bailey Travel Bursary to the United Kingdom. He was a member of the team representing the International Student Conference, which visited universities in Southeast Asia for six months in 1955 and 1956.
Didcott was admitted to the Bar in Cape Town on 26 February 1954. He served as a Supreme Court reporter on the staff of the Cape Argus from 1954 to 1955, after which he practised at the Durban Bar from July 1956 to June 1975.
During the 1960 state of emergency, Didcott was tipped off that the security police intended detaining him, and he skipped the country to Southern Rhodesia (now Zimbabwe), where he spent some months as a prosecutor until he felt that it was safe to return. He was appointed senior counsel on 19 July 1967. From 1973 to 1975, he was the Chairperson of the Society of Advocates of Natal.
Didcott served as an acting judge of the Natal Provincial Division of the Supreme Court of South Africa during February 1971, and then in 1975. He was judge of the Natal Provincial Division of the Supreme Court of South Africa from 16 June 1975 to 12 October 1994. He was also a member of the Special Electoral Court for the 1994 general election.
It might be a fine protest [against apartheid], but it would soon dissipate, and the vacancies would be filled by people who had no qualms about injustice. If we argue that moral judges should resign, we can no longer pray when we go into court that we find a moral judge on the bench.
John Didcott
Justice of the first bench of the Constitutional Court
Appointment to the Constitutional Court
Didcott served on the Constitutional Court from his appointment in 1994 until his death on 20 October 1998.
Apart from this being intellectually enormously exciting and stimulating, as I now get towards the last years of my professional life, I would like to have the opportunity to do something which really is a positive contribution. It would give me enormous personal satisfaction to be involved in helping to shape the new thinking about this [the law], especially after lots of years of shaping not having been very decisive.
John Didcott
Justice of the first bench of the Constitutional Court
On his fellow justices on the Constitutional Court:
I set a great store for those who are on the Constitutional Court about the opportunity they will have to benefit from the experience of others whose personal experiences, their experience of life and whose attitudes may be very, very different. They will be told things and understand things that have not occurred to them before.
John Didcott
Justice of the first bench of the Constitutional Court
Judgments of Interest
Case and another v Minister of Safety and Security and Others (1996)
This case concerned a challenge to the constitutionality of section 2(1) of the Indecent or Obscene Photographic Matter Act, which prohibited the possession of indecent or obscene photographic matter. The applicants were found in possession of some 150 video cassettes containing sexually explicit matter which were seized by the police.
In a judgment delivered by Justice Didcott, the Constitutional Court held that section 2(1) constituted an infringement of the right to personal privacy guaranteed by section 13 of the Interim Constitution. The invasion of the right to privacy, the Court held, was aggravated by the very broad definition of indecent or obscene photographic matter contained in the Act. The Court held that the infringement of the right to privacy was neither reasonable nor justifiable in terms of section 33(1) (the limitation clause) of the Interim Constitution, and therefore section 2(1) was unconstitutional.
The Court did, however, note that an invasion of privacy may be permissible in terms of the limitation clause, where the material concerned was so pernicious that a ban on its possession could be said to serve a useful purpose.
What erotic material I may choose to keep within the privacy of my home, and only for my personal use there, is nobody’s business but mine. It is certainly not the business of society or the state. Any ban imposed on my possession of such material for that solitary purpose invades the personal privacy which section 13 of the Interim Constitution guarantees that I shall enjoy.
John Didcott
Justice of the first bench of the Constitutional Court, 9 May 1996
Didcott’s approach in cases such as these, though seen at the time as sharply divergent from the prevailing current of judicial opinion, is today the dominant one.
S v Makwanyane (1995)
In his separate and concurring judgment in S v Makwanyane – the case that dealt with abolishing the death penalty in South Africa, Justice Didcott had this to say:
South Africa has experienced too much savagery. The wanton killing must stop before it makes a mockery of the civilised, humane, and compassionate society to which the nation aspires, and has constitutionally pledged itself. And the state must set the example by demonstrating the priceless value it places on the lives of all its subjects – even the worst.
Justice John Didcott
the Makwanyane judgment, 6 June 1995
Family and Personal Life:
Didcott was married to Pam Didcott and they have two daughters and four grandchildren. Didcott died on 20 October 1998.
What it was like to know him
I came first to respect him as a student leader with a compelling charisma, then often to fear him as a very powerful adversary at the Bar with a commanding forensic presence in the courts. Later, I came to venerate him as a judge of rare brilliance and a man of deep commitment.
Ismail Mahomed
former Deputy Chief Justice of the Constitutional Court
He was a brilliant fellow, but in addition to being an incredible scholar, he was a magnificent speaker – quite superb as a demagogue. When he, Zach de Beer, and Sharkey King debated the government’s race policies, there would be standing room only in Jameson Hall. All three were strongly opposed to the official line, but also made it a principle to disagree with each other on everything.
Graham Cox
Durban attorney and long-time friend
John Didcott took an appointment on the bench some five or six years before I did and gave some wonderful judgments, ameliorating some of the worst of apartheid laws, and I think that model meant a great deal to me.
Richard Goldstone
former Justice of the Constitutional Court
He was a very interesting personality. I know among counsel in the division, some loved him intensely. Others feared him. They did not want to appear before him because he was capable of ripping them apart; such was his sharpness.
Pius Langa
former Chief Justice of the Constitutional Court
