Justice Albie
Sachs
“We wanted a Constitution that was smiling to the people – but it mustn’t be a sneer smile, or an insincere mask of a smile. The smile must come from inside, that people may believe in it, because it’s authentic. And the smile contains tears, and sadness, and a knowledge of imperfection.”
During the anti-apartheid struggle, Justice Albie Sachs worked as an advocate by day and in the underground by night. He spent days, weeks, and months in solitary confinement, with sleep deprivation thrown in. This was followed by 24 years in exile, seven as a stateless person, and being the victim of a car bomb, which resulted in the loss of his arm and sight in one eye.
Constitution Hill
Early Life and Career
Albert “Albie” Louis Sachs was born at Queen Victoria Hospital in Johannesburg, across the road from what is now the Constitutional Court. He matriculated at South African College School (SACS) and completed his BA LLB at the University of Cape Town in 1956 and his PhD at the University of Sussex in 1971. Sachs’ human rights activism started at the age of 17, when as a second year law student, he was a volunteer in the Defiance of Unjust Laws Campaign in 1952. Three years later he attended the Congress of the People in Kliptown where the Freedom Charter was adopted. Sachs recalls:
In 1955, there were about 3 000 of us in Kliptown, sitting in winter on a field with a makeshift structure. I was very excited because we’d been denouncing how terrible apartheid was but what about our dreams, our vision of the new South Africa? … We were certain that we’d destroy the system of apartheid. We were certain that we would get democracy in South Africa. We didn’t have all the details. But now we had drawn up a programme that was a road map to the reconstruction of South Africa. We had a vision of the kind of country we wanted, and its values.
Albie Sachs
Justice of the first bench of the Constitutional Court
Sachs started practicing as an advocate at the Cape Bar at the age of 21.The bulk of his work involved defending people charged under racist statutes and repressive security laws. Many faced the death sentence. Sachs himself was raided by the security police, subjected to banning orders restricting his movement, and eventually placed in solitary confinement without trial for two prolonged spells of detention.
In 1966, Sachs went into exile. In 1988, a bomb was placed in his car in Maputo by South African security agents. The blast caused him to lose an arm and the sight in his right eye. Sachs wrote extensively about his recovery in a book entitled The Soft Vengeance of a Freedom Fighter.
To wake up without an arm but to feel joyously alive, to learn to do everything – to sit up, to stand, to walk, to run, to write again. Every little detail became a moment of discovery and breakthrough. I had an absolute conviction that as I got better, my country got better.
Albie Sachs
Justice of the first bench of the Constitutional Court
During the 1980s, while working closely with Oliver Tambo, the then President of the African National Congress (ANC) in exile, Sachs helped to draft the organisation’s Code of Conduct, as well as its statutes. After recovering from the bomb, he devoted himself full-time to preparations for a new democratic Constitution for South Africa as a member of the ANC’s Constitutional Committee. He worked on a draft of the ANC’s first Bill of Rights for a democratic South Africa at Kader Asmal’s kitchen table in Dublin.
In 1990, he returned to South Africa and continued his work on the Constitutional Committee as well as on the National Executive Committee of the ANC. He took an active part in the negotiations at the World Trade Center between 1991 and 1994 which led to South Africa becoming a constitutional democracy.
Appointment to the Constitutional Court
After the first democratic election in 1994, President Nelson Mandela appointed Sachs to serve on the newly established Constitutional Court:
I was actually at the Thursday night symphony concert at the City Hall in Cape Town, when Gerald Friedman, who was the Judge President of the Bench in the Cape, leaned over from his row, and said, congratulations, Albie! And that was the first that I knew.
Albie Sachs
Justice of the first bench of the Constitutional Court
About his time at the Constitutional Court:
In other courts you go around the table, everyone speaks once and then it’s over. You declare your position. Our process was completely different. We debated and analysed different aspects and themes. We went around the table and it was often harsh, very vigorous, very sparky, and frequently brilliant. I would sit at the table amazed at the quality of the discussion, the debate. So very special and very, very rich.
Albie Sachs
Justice of the first bench of the Constitutional Court
Sachs’ philosophy and writing style helped influence the formatting and tenor of judgments at the Constitutional Court. Additionally, Sachs was also noteworthy for shaping the development and character of the Constitutional Court building and the creation of its renowned artworks collection.
Judgments of Interest
State v Makwanyane (1995)
In this first case heard by the Constitutional Court on the constitutionality of the death penalty, all justices on the bench wrote separate but concurring judgments. Sachs describes the issue as follows:
I think there were 400 people on death row. During negotiations, the ANC and the South African government couldn’t agree on the death penalty issue. The ANC was totally opposed to capital punishment; the South African government couldn’t imagine a society that didn’t execute its citizens. And it was agreed that the country’s first democratic elections shouldn’t be postponed just because a mutually acceptable arrangement had not been made on the issue. And you can’t have a little bit of capital punishment. You either have it, or you don’t. So the agreement was not to seek agreement, but to leave it to the new Constitutional Court to decide on its constitutionality.
Albie Sachs
Justice of the first bench of the Constitutional Court
Justice Sachs’ judgment focused on the Southern African experience. He pointed out that the constitutions of newly independent Mozambique and Namibia especially forbade the death penalty, and also referred to the fact that great traditional leaders such as Hintsa, Moshoeshoe, and Montshiwa opposed the death penalty on the principle that blood should not follow blood.
Minister of Home Affairs and Another v Fourie and Another (2005)
Under the Marriage Act 25 of 1961, same-sex couples were not allowed to get married. This landmark decision of the Constitutional Court found that same-sex couples have a constitutional right to marry. The judgment, authored by Justice Sachs and delivered on 1 December 2005, gave Parliament one year to pass the necessary legislation. As a result, the Civil Union Act came into force on 30 November 2006, making South Africa the first country in Africa and the fifth in the world to legalise same-sex marriages.
A democratic, universalistic, caring and aspirationally egalitarian society embraces everyone and accepts people for who they are. To penalise people for being who and what they are is profoundly disrespectful of the human personality, and a violation of equality.
It was hard for us to see how the institution of marriage could be undermined by broadening its meaning and scope. “ Denying people access to marriage … it’s denying them the status and dignity of being ordinary citizens in society.
Equality means equal concern and respect across difference … At the very least, it affirms that difference should not be the basis for exclusion, marginalisation and stigma. At best, it celebrates the vitality that difference brings to any society.
Justice Albie Sachs
the Fourie judgment, 1 December 2005
Life after the Constitutional Court
Sachs has published 10 books, including The Soft Vengeance of a Freedom Fighter and The Strange Alchemy of Life and Law, which both won the Alan Paton Award. His book, The Jail Diary of Albie Sachs, was dramatized for the Royal Shakespeare Company and broadcast by the BBC. Sachs is also a recipient of twenty-five honorary degrees at institutions across four continents. So it was no surprise that after his retirement from the Constitutional Court he wrote his latest book – We, the People.
Sachs also established the Albie Sachs Constitutionalism and Rule of Law Trust (ASCAROL) which he set up using the funds he received for research as the first recipient of the Tang Foundation Prize for the Rule of Law. The aim of ASCAROL is to record the making of the Constitution and the Constitutional Court, digitise the information and ensure this story is accessible to learners, citizens, scholars and the broad public. This is to be done at no cost to the public, not only online and in various books and films, but also ultimately through a museum of the Constitution, which will be established at Constitution Hill. .
Family and Personal Life
In 1966, Sachs married Stephanie Kemp, a member of the African Resistance Movement, ANC, and South African Communist Party, in London. They had two children: Alan (an artist), and Michael (a developmental economist). In 1980 they divorced and Stephanie remained in London until 1990, working as a paediatric physiotherapist.
In 2006, Sachs married architect and urbanist, Vanessa September, in a ceremony held inside the Constitutional Court. They have a son, Oliver Lukho-Uthando September Sachs. They live in Cape Town.
In the words of others
I treated Albie like a big brother and I could express my anger at him when I am angry at him, ‘No Albie, we are not going to do that.’ It sounds maybe like a cliché but we were sister and brother and two friends.
Yvonne Mokgoro
former Justice of the Constitutional Court
I was ecstatic to be Albie Sachs’ law clerk, you know, having read and studied his judgments. Albie is, I think … seen as a more eccentric judge. He’s not your usual run-of-the mill … That’s not meant as an insult to judges who are not eccentric, but, you know, Albie has an edge about him. Justice Albie Sachs makes it very easy in the sense that he puts you at ease. He lets you find your feet but, you know, there’s still work to be done, and you’ve got to put in the hard yards.
Anshal Bodasing
former law clerk to Justice Sachs
Albie and I had some wonderful occasions when he breathed spirit into me and I breathed order into him.
Johann Kriegler
former Justice of the Constitutional Court
