Justice Johann van der Westhuizen
“A sense of humour is very useful when one deals with the stress of human relationships and conflict.”
Advocate and professor, Justice Johann Vincent van der Westhuizen was the founding director of the University of Pretoria’s Centre for Human Rights and a passionate anti-apartheid proponent. He served as a justice on the Constitutional Court and was known for his sense of humour even under difficult and stressful times.
Early Life and Career
Johann van der Westhuizen was born in Windhoek, Namibia, on 26 May 1952. He received a BA Law (cum laude), LLB (cum laude), LLD, and LLD honoris causa from the University of Pretoria. During his studies, he spent time completing research projects in Germany, the United States, the Netherlands, and the United Kingdom.
From 1980 to 1994 Van der Westhuizen was the head of the Department of Legal History, Comparative Law, and Jurisprudence at the University of Pretoria’s Faculty of Law. He was also the founding director of the university’s Centre for Human Rights from 1986 to 1998. As an academic, Van der Westhuizen has taught widely in South Africa and abroad, including at Yale Law School in the United States as well as in Germany and Canada.
He was admitted as an advocate of the High Court of South Africa in 1976, and was an associate member of the Pretoria Bar from 1989 to 1998. He acted as counsel in many human rights matters, and served as a consultant and in-house advocate for the Legal Resources Centre and sat on the governing body of Lawyers for Human Rights.
During the drafting of South Africa’s Constitution, he served as a member of the Independent Panel of Recognised Constitutional Experts, which advised the Constitutional Assembly. He was also a member of the Technical Refinement Team as well that was responsible for the final drafting and editing of the Constitution.
In 1999, he was appointed by President Nelson Mandela as a judge in the Transvaal Provincial Division of the High Court (now the North Gauteng High Court) in Pretoria.
I learnt much from the vast experience of the white male judges, appointed before 1994, about the law; court procedure; and farming. I also learnt from a few of them, how people should not be treated and how justice should not be dispensed.
Johann van der Westhuizen
Justice of the Constitutional Court
Appointment to the Constitutional Court
Van der Westhuizen was appointed to the Constitutional Court of South Africa on 1 February 2004. Constitutional Court judgments written by Van der Westhuizen dealt with a vast array of matters including constitutional amendments, provincial boundaries and powers, fair trial issues, equality, the development of African customary law, the right of access to adequate housing and other socio-economic rights. He also penned judgments on asset forfeiture and search and seizure procedures, the right to privacy, and the contractual and delictual liability of private security companies, freedom of expression, and land claims. He retired from the Court in 2016.
But now, I think my legacy may well be, that through a few of my judgments and speeches, my legacy might be that I was the first judge to bring The Great Gatsby, President John F. Kennedy, Monty Python, Kris Kristofferson, and Bob Dylan into our constitutional jurisprudence. These will henceforth all be authorities to be quoted.
Johann van der Westhuizen
Justice of the Constitutional Court
Judgments of Interest
Shilubana and Others v Nwamitwa and Others (2007)
This case concerned a dispute between Tinyiko Shilubana and Sidwell Nwamitwa over the right to succeed Sidwell Nwamitwa’s father, Richard Nwamitwa, as Hosi (Chief) of the Valoyi traditional community in Limpopo.
In 1968 Shilubana’s father, Hosi Fofoza Nwamitwa, died without a male heir. Because customary law at the time did not permit a woman to become Hosi, Shilubana did not succeed him as Hosi although she was his eldest child. Hosi Fofoza was instead succeeded by his brother, Richard.
During 1996 and 1997 the traditional authorities of the Valoyi community passed resolutions deciding that Shilubana would succeed Hosi Richard, since in the new constitutional era women were equal to men. Her succession was approved by the provincial government. However, following the death of Hosi Richard, Shilubana’s succession was challenged by Hosi’s eldest son, Nwamitwa.
Justice Van der Westhuizen, writing for a unanimous Court, found that the succession to the leadership of the Valoyi had operated in the past according to the principle of male primogeniture. However, the traditional authorities had the authority to develop customary law. They did so in accordance with the constitutional right to equality.
However, customary law is living law and will in future inevitably be interpreted, applied and, when necessary, amended or developed by the community itself or by the courts. This will be done in view of existing customs and traditions, previous circumstances and practical needs, and of course the demands of the Constitution as the supreme law.
Justice Johann van der Westhuizen
the Shilubana judgment, 17 May 2007
Van der Burg and Another v National Director of Public Prosecutions (2012)
In this case, the applicants sought leave to appeal against a High Court decision to grant a forfeiture order against the applicants’ property, in terms of the Prevention of Organised Crime Act (POCA). The applicants were a married couple who had been running an illegal shebeen from their home for many years in contravention of the Liquor Act, despite numerous complaints and several police actions. The applicants argued that the forfeiture order was disproportionate because the offence of selling liquor without a licence is not subject to POCA’s forfeiture provisions, which target organised crime. In addition, the applicants lived with their four children and argued that the forfeiture order would render their family homeless and would not be in the best interests of the children.
In a unanimous judgment, penned by Justice Van der Westhuizen, the Court dismissed the appeal and upheld the forfeiture order. It found that POCA applied to the offence of the illegal sale of liquor and that forfeiture was not disproportionate in the circumstances.
The patent and ongoing harm caused by the unlawful conduct requires alternative measures, even if harsh, to bring the unlawful activity to an end. The property plays a major role in the ongoing commission of the offence.
Justice Johann van der Westhuizen
the van der Burg judgment, 12 June 2012
Life after the Constitutional Court
Van der Westhuizen is an Inspecting Judge of Correctional Services in South Africa. He is a professor in the Department of Jurisprudence, an extraordinary professor at the Centre for Human Rights of the Faculty of Law at the University of Pretoria, as well as an honorary professor at the University of Cape Town.
Family and Personal Life
Van der Westhuizen is married to Sarojini Persaud and they have three children: Alexander, Dassie and Vincent.
In the words of others
Here was a white academic, of an Afrikaans background, advocating for human rights – long before it became fashionable to do so. This unwavering commitment to human rights is something that would characterise his entire career.
John Jeffrey
former Deputy Minister of Justice and Constitutional Development
We would sit down and discuss the case, we would present memos to the judge in terms of what we found when we analysed the papers that had come in. Some of them were quite daunting. There were just volumes and volumes and volumes of papers, and I think occasionally that was intimidating. But he would bring us and focus us and help us in looking at what the law should be, what facts should we be looking at … making us feel less shy about contributing, especially on such occasionally intimidating cases.
Agnieszka Wlodarski
former law clerk to Justice van der Westhuizen
Justice Van der Westhuizen was professional, organised, a concise writer and preferred using simple language in judgments to enable it to be easily understood by the ordinary person. On a personal level, I found him to be a kind and warm human being who was very family oriented (despite his busy profession). Judge was always concerned about the well being and growth of his clerks. I recall when he hosted us in his house in the Western Cape during prison visits, he cooked for us.
Amanda Mfuphi
former law clerk to Justice van der Westhuizen
