Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
19 June 2013

Barney Pityana’s Bram Fisher memorial lecture on judicial transformation


 South Africa has been endowed with towering and inspirational figures in her history. In many respects many of these represent the conflicted race and economic colonial history of the country. One might therefore be excused for taking a circumscribed view of that history depending on one’s social and political orientation. For good or ill, for better or for worse, they have shaped the history of this land. Among such figures, surely, and with the benefit of hindsight and history, the name of Advocate Abram Louis Fischer, more commonly known as Bram Fischer, is writ large.

Bram Fischer was a lawyer. He came from a family deeply rooted in Afrikaner nationalism, as well as law and politics. It always strikes me as curious that lawyers are so regularly found among those who have championed generally unpopular causes, and have been so prominent in popular struggles. It is peculiar at one level, because the legal profession is very conservative. It is bounded by formality, decorum and tradition. It has certain ‘bottom lines’ that are hardly ever questioned, and by and large, it advances by a process of pragmatism and deference to authority. And yet, at another level, lawyers are trained in the art of argument, and logic and persuasion. They are also cultured to take a stand with their client, even where this may be unpopular or a hopeless case. To that extent, they get to understand the people or causes they represent, and in that often lengthy process, they identify with their clients and their causes (although some of us were trained to take an emotional distance from our clients as litigants).  History and experience have taught us the best lawyers are those who pay close attention to detail. One has to be good at what one does. It has been said that Bram Fischer was meticulous in reading his briefs, preparing his opinions, and managing his cases.

Bram Fischer was steeped in the social, political and intellectual climate of the Orange Free State. And yet he seems to have had the privilege of a liberal, albeit Afrikaner upbringing, including an education at Grey College and university, as well as Oxford University. He was already a successful lawyer at the Johannesburg Bar when he formally joined the Communist Party giving effect to his intellectual persuasion, honed throughout his time in Europe, which he indulged in upon his return in the non-racial liberal circles of Johannesburg, perhaps catapulted into active and open identification with the Communist Party by the international developments. Whatever the impetus, it would have taken a great deal of intellectual courage and independence of mind to become a Communist and contend with family and colleagues at the Bar, and by now at Wits where he had taken a teaching position, and with the unknown effect of such identification on his practice and social life.

Of course, for most of us, Bram Fischer came to our notice as the lead counsel in the Rivonia Trial. South Africans remember so well the courage and inspiration of Nelson Mandela’s statement from the dock, and the fact that the Rivonia Trialists were facing a death sentence. Not many of us, however, are aware that it would have taken enormous courage for Bram Fischer SC to defend his comrades knowing that he too may be cited by any number of state witnesses. I suggest, however, that it was more than mere courage or bravado. It was also a deeply transformative restructuring of the rules of the game, where counsel and client identified with, and were bound by a common cause. It became evident that this consummate defence counsel was set to challenge the veneer of justice that the South African legal system sought to present, and in so doing, expose what Nelson Mandela castigated as a “white man’s court” (1962).

A brief two years later Fischer, now the accused in his own trial was to estreat[2] bail and go underground before he was arrested some 9 months later. He had in fact honoured his undertaking to return to stand trial after being allowed to travel to London for a case before the Privy Council. It was for him a matter of honour and conviction. On this occasion, however, he informed the court through his counsel that he would not appear, and that this was not out of “disrespect” for the court. He vowed to continue his struggle against apartheid. He then stated that he felt duty bound to take a stand

as an Afrikaner, because it is largely the representatives of my fellow Afrikaners who have been responsible for the worst of these discriminatory laws. (1965)

Significantly, Fischer then advised the court:

I can no longer serve justice in the way I have attempted to do during the past thirty years. I can do it only in the way that I have now chosen.  (1965)

That, of course, is rather cryptic. How would life underground serve the cause of justice? I suggest that he meant that in two ways.  Firstly, by undermining the justice claims of the system he had been part of for so long and declaring that in fact it could not produce any real justice, he attacked its claims to legitimacy. Secondly, the apartheid system had to be overthrown because the justice system could not reform itself. He was therefore resolved to commit himself to the overthrowing of the apartheid system. At his own trial in 1966, Bram Fischer read a statement from the dock. In it he averred that he accepted the general principle that law should be obeyed, but at the same time he declared

But when the laws themselves become immoral, and require the citizen to take part in an organized system of oppression – if only by his silence and apathy – then I believe that a higher duty arises. This compels one to refuse to recognize such laws. (1966)

Of course, Fischer was referring here to a time-honoured moral principle; one that had been raised in Nazi Germany by conscientious objectors such as Dietrich Bonhoeffer and Pastor Martin Niemoller. But it is not a principle that is a defence in law.  Fischer realized that, therefore he did not plead nor take the witness stand.  He refused to compromise his principles by denying the validity of his actions and political convictions. In other words, he declined to participate in his own conviction. He went further than that, stating that he was acting out of duty: as an Afrikaner; as a member of the legal profession; and as a moral human being. This sense of duty must always guide the conscience of moral agents.

Out of that all-too-brief outline of the Bram Fischer chapter in our national life, I propose to discuss the transformation agenda for the justice system in South Africa, based on the convictions that Bram Fischer so boldly outlined and articulated, and for which he suffered and died. I have noted above the place of revolutionary principles, the legitimacy and credibility of the legal system and the mind of the lawyer. I do not wish to be understood as suggesting that the current situation is akin to that which obtained under apartheid. Nothing could be further from the truth. We now have a Constitution that is broadly acknowledged with pride by the great majority of South Africans. We now have a judiciary, especially the Constitutional Court that is the pride of our land. 

I am not one of those who accept too easily the mantra that the Constitution is a ‘compromise’ document. That is invariably a populist expedience aimed at de-legitimising aspects of our constitutionality and it cannot be justified. I believe that the Constitution is representative of the convictions of all who negotiated it, and that it reflects the essential interests of the people of South Africa. It is an ideal document in that it encapsulates the character of our society and is designed to be the fundamental law for all South Africans[3]. For some, any suggestion to the contrary proposes a constitution with no more legitimacy than that of the apartheid system.  The Constitution has avoided that. It has achieved, if you like, that “bridge” that Fischer referred to in his Statement from the Dock (1965), between black and white that legitimises “by negotiation, and not by force of arms” the destinies of us all.

Much has been made in recent times of the imperative for transformation in our judicial system. Granted, this has to do with the duty for judges to reflect the racial, gender, disability, geographic and class demographics of our country. Of course, this rarely gets expressed in the manner I have done. In fact the Constitution is very sparse in this regard, referring as it does only to race and gender, and revealing I suggest, the bias and proclivities of the negotiators and drafters of the Constitution (RSA, 1996: s.174(2)). The rationale for this should not be hard to understand. There should never again be a repeat of the ‘Mandela phenomenon’ in the courts system in our country, in terms of which clients, accused or litigants are alienated from the proceedings; presiding officers do not engender confidence or they create suspicion amongst the public; and there is no understanding of the experience of justice from the “other” side. This would invariably cause the legitimacy of the courts to be held suspect.

It is true that “transformation” can also be expressed in a self-serving manner, to advance particular or hegemonic interests or achieve a political expediency. Unfortunately, the manner in which the Judicial Service Commission (JSC) is structured lends itself to the view of the prevailing or dominant interests being subscribed to by the dominant political elite in our country. One would expect that, conscious of this, the manner in which the JSC is chaired should be engaging and inclusive, enabling those ostensibly minority opinions to be heard empathetically and with understanding. This does not just refer to the question of race, but also, and perhaps more pertinently, to women, people with disability, and to experiences of class.  In other words, transformation must begin with the judiciary itself in the manner in which it conducts its affairs.

The second consideration is that it is important to recall that “transformation” does not just mean a change from one state to another. It actually has a deeper meaning, implying a change in the nature of being, almost to the point of it being unrecognizable from the past. This tells me that one must drill below the surface, beyond the obvious and visible. For example, race is important and it is one category, but it is not, nor should it be, the dominant category forever. It is now nearly 20 years since the transformed judicial system was introduced, and yet there are cries about the lack of accommodation in our judicial system, of women, the disabled, and I add, people of different sexual orientations. 

One is always touched by the stories of some of our judges, such as the former Chief Justice Pius Langa, and indeed the current Chief Justice, who came from poor homes and struggled to make their way to university. One hardly ever hears about, or even considers, how class-consciousness, for example, translates in the manner in which judges are trained to listen, hear and judge. Precisely how does a court presided over by a woman make a difference to the texture of justice-seeking and application? Precisely how does class difference impact on the interpretation and application of justice? 

But there is a third consideration. Again, this is one which one hardly hears about, yet it is one with which I believe, Bram Fischer must have wrestled for a long time, namely, whether the system itself does not militate against effective justice. For him it was the difference between form and substance. The form was appropriate in address, decorum and respect. The substance was in the laws that were passed and which the court believed was its duty to reinforce. In line with the principles of stare decisis, the previous decisions of the courts must be upheld, and the decisions of the higher courts are binding on the lower courts. In many cases our courts are bound to apply the Constitution, taking into account their inherent powers to “develop the common law, taking into account the interests of justice” 1996: s.173). Furthermore, and to what extent is the South African legal system bonded by accretions of a legal system of Roman Dutch Law, English law, and common law that have been declared normative at the expense of more indigenous systems of expression of law? When judicial decisions are reviewed, in how many of those instances do our courts examine more indigenous systems of justice making? [4]

I am reminded that the Constitutional Court building in Braamfontein is a matter of great pride for Justice Albie Sachs, depicting as it does the dispensing of justice under the tree, and implying the centrality of justice in the consciousness of the community, as well as its openness and its invitational character. But is that indeed so? I do not mean that it should be applied to an uncritical extent, but rather, that it should be grow and develop the totality of the legal systems available to our rainbow nation.  My sense is that if one walked into any of our courts, one would be struck by how European and foreign our legal system still is, how alienating to many, and how inaccessible. I therefore suggest that transformation must examine the wider perspectives and insights that Bram Fischer arrived at towards the end of his active legal practice. For him, these may have been occasioned by the determination of his colleagues in the Johannesburg Bar to disbar him, and of the Justice Minister to regulate the admission of advocates, and exclude from admission communists and any convicted under the Suppression of Communism Act. Clearly he came to the reluctant conclusion consonant with the statement by Marx & Engels in The Communist Manifesto that “Your jurisprudence (addressing the bourgeoisie) is but the will of your class made into law for all, a will whose essential character and direction are determined by economic conditions of existence of your class” (Curzon: 2001; 211). Thus he was disabused of his lifelong belief in the transformative character of law, and experienced it for what it was, a brute and blunt instrument of social control. He had then resolved that he would rebel against what he regarded as anathema to law. Of course, the class character of apartheid was complicated by its racist essentials, but whatever it was Fischer did not belong to is and would resist it.

It is my contention that the quality of law in a country depends on the intellectual and political environment that obtains to enable aggressive, independent lawyers to defend the best interests of the people. This means that the lawyer must earn the trust of his or her clients, as if he or she has no other client to think about. Karin van Marle ponders this in her essay entitled Lives of Action, Thinking and Revolt: A Feminist Call for Politics Becoming in post Apartheid South Africa (2007: 34 – 58).   She suggests that there is a view of constitutionalism that lends itself to apathy and paralysis, as if the Constitution by itself solved all matters of contention by mere fiat. She asks the question pertinently, to what extent, if at all, transformation, in the sense of radical restructuring of not only the system but of subjects themselves, has been put in motion over the past decade?  She senses that what we may have lost, that was surely there in the struggle, is that anticipation and continuous working towards bringing into being something new.  In other words, in contrast to Christof Heyns’ paradigm of human rights as struggle, she posits Lourens du Plessis’ notion of the Constitution as a monument, memorial and promise. It suggests and reminds one to struggle continuously for justice, even if it is with the Constitution as armoury.

But for van Marle there is a more fundamental issue that can be derived from social scientists like Hannah Arendt in her book The Human Condition (1958) and its interpretation by Julia Kristeva. She takes the view from Arendt, of the centrality of life in the human condition, of life at the centre of thought and action. Life is fulfilled to the extent that “it never ceases to inquire into both meaning and action.” This search for fulfillment, the intertwining of thought and action, must result in revolt. Revolt is the freedom to call into question, to demand and take into account, and to lay out alternatives to appropriate action. When things that have become normal or atrophied are called into question, they have the possibility of revival and growth; but they may also face the prospect of dying for irrelevance, and so they should.  “Revolt” and “revolution” are therefore suggestive of an ongoing cycle of critical re-evaluation. She expresses this as follows:

“revolt refers to a state of permanent questioning, of transformation change, an endless probing of appearances (2007: 34 – 58).”

In summary, van Marle argues that democracy must guard against

“a complacent society where political action, thought, eternal questioning and contestation are absent and replaced by an understanding of freedom as mere commercial/economic freedom and of thought as calculated and instrumental (2007:34 -58).”

However, while it may be possible to regulate transformation by law at the bureaucratic level, it is nearly impossible to shift transformative thinking about law and the systems of justice at the level where substantial shifts in the nature of the law and how it operates are affected.

I submit that ironically, we may well be in the grip of the totalizing power of the state in South Africa today, where the power of the state is centralized in the party to the extent that there is no difference between state and party, and where there is a fusion between the public and the private realm. In such a context it makes sense for state resources to be utilized to make the private residence of the Head of State more lavish and comfortable at state expense; for citizens not to interrogate state decisions about war and peace, as in the case of the deployment of South African troops in foreign lands; and for the Head of State to pack independent state institutions with his own lackeys. Anthony Court in his study of Hannah Arendt (2008:263) expresses this anti-constitutional dilemma this way:

…rather than ‘politicising’ the totality of life forms, totalitarianism in fact effects a radical de-politicisation by way of isolating the individual, whose only connection to a common world is afforded by the totalitarian movement. Accordingly, the individual is cast into a state of intolerable ‘loneliness’. The immensity of power generated by totalitarian organization derives from the internalization of the principle of total domination and the reduction of human relations to acts of ideological compulsion.

I suggest that when public power fails to acknowledge citizens as bearers of rights, where power in a constitutional democracy is mediated by the people’s critical consciousness as a right and a duty, and where that fails the discourse and practice becomes counter-intuitive, to reflect only the power of the political elite. That is a danger, and a dangerous slide into totalitarianism.

The political discourse in our country in recent times has elevated the notion of ‘innocent until proven so’ in cases where senior politicians have been accused of corruption, and the Rule of Law has been cited in a self-serving and facetious manner. Well, it may be that this is a principle embedded in the Rule of Law, but besides the Rule of Law, there is the moral principle as to whether one can effectively exercise one’s functions at a time when doubt is expressed about one’s integrity. Is it not the case that the holders of public office should never lend themselves to a situation where trust, confidence and integrity is put under question?

The World Justice Project (2006), states the principles of the Rule of Law as follows:

1.      The government is held accountable under the law;

2.      The laws are clear, and open, accessible, applied evenly, and protect fundamental rights, including security of persons and property;

3.      The process by which laws are enacted, administered and enforced is accessible, fair and efficient;

4.      Justice is delivered timely by competent, ethical and independent representatives… and reflects the make-up of the community they serve.

These principles have been incorporated in our Bill of Rights and elaborated upon by the Constitutional Court and the Supreme Court of Appeal. Of course, these were principles on the basis of which it was easy to criticize the apartheid system. More recently it was held by the late Chief Justice Arthur Chaskalson, reiterating principles set out by the United Nations and International Commission of Jurists (ICJ), that the independence of the judiciary presupposes the independence of the legal profession from control by the state.

We owe to developments in India the concept of judicial activism. I shall not attempt here to delve deeply into this concept, which to many judicial purists is controversial. I suggest it here as a means of considering how the transformation of our jurisprudence, as well as the processes and procedures accompanying it can be opened up, made more accessible and accountable, and reflect more truly the community’s sense of justice, at whatever level the parties approach the court. Judicial activism has been thought to have as its downside the court’s intrusion into other spheres of government and as such suborn the democratic processes. In a preface to the book by Prof SP Sathe, entitled Judicial Activism in India (2002), Prof Upendra Baxi of Warwick University observes that judicial activism causes discomfort to lawyers because it brings about indeterminacy and fails to settle matters of law, the reason being that judicial activism has the freedom to judge each case not just by its legal merits but also in its social and political contexts. And yet Baxi argues that this may be its strength because “this inherent ‘undecidability’ constitutes the mode of the telling of stories, and the openness to definitions and redefinitions”. He goes on to say “If true, this ‘truth’ subverts the model of an either/or choice: narratives about judicial activism de-privilege any ‘right’ way of describing, let alone defining its basic features and processes” (2002: xii).  This enables what van Marle (2008:48) features in her analysis as acknowledgement and development of narratives of freedom and revolt that are told, experienced and shared.  It is those narratives that judicial activism privileges and does not suppress. In so doing the narratives of the under-side receive empowerment by being received and listened to. Therefore says Baxi, “judicial activism presents stories of both complicity with dominant power formations and ways of insurrection” (2001:xii).

I do not have space or time to outline more fully the applications or lack thereof, of judicial activism in the South African jurisprudence. What is critical to bear in mind though, is the conception that judicial activism is driven by the pursuit of substantive justice and values. Of course this is tricky because of the subjectivity this allows. It is tricky because in truth, every judicial officer is not necessarily unaware of some of the subjective biases that come into the judicial process, or of his or her ability to keep such in check in the interests of a just and fair adjudication.

Sathe, however, goes a step further. He argues that judicial activism is “counter majoritarian” in that it starts from the position of bias for the poor, under-privileged and marginalized. He argues that judicial activism in favour of the powerful is unnecessary because the powerful have the means to assert their hegemony in the social and political system in any event. He reckons that it is not just unnecessary but “counter-revolutionary and inimical to social change to allow the power of the dominant socio-political forces to determine judicial outcomes (2002:281). This is how he expresses it:

“If judicial activism is to be conceptualized as interpretation of the law or the Constitution from the perspective of not only law, but justice, any interpretation that tends to perpetuate the existing class domination is negative judicial activism and any interpretation that expands the rights of the disadvantaged sections as against the dominant sections or the individual against the State is positive judicial activism.”

While it may be argued that Sathe perhaps overstates the case, or that the circumstances in India are different from our own, the subtle point to be made is that the judiciary has to be freed to think laterally and at depth. Furthermore, the judiciary must be conscious of the social dynamics that underlie the matters that come before court, and the court must be freed from the constraints at times of precedent.  In any event, one should never assume that there is a suggestion here of unrestrained subjectivity and irrationality.  What is of value is that the court puts itself at the service of people by making the judicial process intelligible to the ordinary people, promoting access by removing the aura and veneer of respectability, and by addressing alienation in terms of class, race and gender.

Sathe explains that the Supreme Court of India has done much to restore confidence in the judiciary as the main educator on democracy and constitutionalism and the democratic culture, and it is considered to be more representative of the popular consensus in matters of values. As expressed by Dr BR Ambedkar, himself a Dalit and the main architect of the Indian Constitution, it addresses the contradiction prevalent in society between the old order and the difficult birth of the new.

I make this example only to say that in truth much has been done in our country to make the courts accessible and affordable. The works of the Legal Aid and Justice Centres, and the tradition of pro bono appearances by advocates remain a critical instrument in making justice accessible. Nonetheless it also remains true that our court system, and its rules and procedures are very complex and unintelligible to the ordinary persons, with the effect that justice is only likely to be accessed by those who have the privilege of legal representation. Even the amicus system is dominated by legal NGOs and activist organisations who themselves are professional lawyers. One would like to believe that there could be a system that facilitated a judicious hearing of concerned citizens. The Constitution has also made possible class action litigation that would assist litigants with a common cause of action to approach the court. There is more to access to justice than is often made of.

As I draw this to a close, I observe in passing that Bram Fischer does not appear to have a view of law as in Marxist Theory. He was, I note, a consummate lawyer. He moved easily, it would seem, among his bourgeois colleagues and earned the respect even of those who passionately distrusted communism. His article on threats to the legal profession, and indeed, his statement from the dock was devoid of the rhetoric of a Marxist ideologue. I have no idea of his ideas of the place of law in his conception of historical materialism, or the withering away of the state. He articulated that law was indeed a mechanism for the advancement of a view of society that he strongly resisted. Strange for a Marxist though, he appeared to be comfortable with the rule of law and human rights. He believed that such was necessary to mediate a society of difference. Unlike Marxist theory of law he held the belief that ultimately law would emerge out of a negotiated settlement, and thus a ‘consensus’ view of law held promise. Advocate Fischer was therefore a consummate lawyer with a critical approach to law, who did his best to extract from an unjust legal system the very best for his clients. By the end though, he had lost faith in the capacity of the law to overcome apartheid structures that were inherently unjust.

And yet he might have been the champion of Critical Legal Theory in one or another of its versions. For one thing the view articulated from India above reflects a version of Critical Race Theory.  Critical Legal Theory challenges the view that law is a system that is coherent and uniform.  In truth law in its social application must remain uncertain, ambiguous at times and expressing or re-presenting societal power relations.  To apply the Gramscian “hegemonic consciousness”, one wonders, indeed, whether and to what extent in South Africa we have such drivers that constitute a “common sense” approach to law. The critique of CLT is valid. It is that there has been a drift in the application of law and rules as agents of state control of all sectors of society, subordinating them to the will of the “class majority” leading to “the gradual approximation of state and society, of public and private spheres” (Curzon: 2001: 285). This encroachment undermines the capability of law to serve the interests of justice unencumbered by political and social pressures. The state and the law thus become merely an instrument of factional interests. Perhaps that is what the Constitutional Court, certainly under Arthur Chaskalson, appeared to be resisting, in asserting the independence of the judiciary and upholding the constitutional values.

In truth, judicial activism, Marxist theories of law and critical legal theory have their valid critics. The critics are essentially about de-valuing the essence of law, first, by generating distrust and cynicism about the purposes and operations of law. Where there is no trust in the legal system then there can be no reception of justice. Second, by undermining the very foundations of law, and its moral anchors, its rootedness in society, and its claims to be representative of societal consensus about justice, as if it is never possible for diverse societies to agree about a common understanding of justice. One of the critics of Unger, considered the father of CLT, Berman has written to decry the cynicism of law generated by CLT and says that “cynicism about the law and lawlessness will not be overcome by adhering to a so called realism which denies the autonomy, the integrity and the ongoingness of our legal tradition” (Curzon: 2001; 288). What surprises is that in a country with enormous gaps in equality, creating perhaps one of the least equal societies in the world, where divergences of culture and historical experiences abound, where there is so much criminality and lawlessness almost to the point of it being considered a normal part of existence in south Africa to be involved in crime and corruption or to become the victim thereof, the expectations of South Africans about law are not very high. Precisely because of that, experiments in judicial transformation, a radical judicial mentality that is prepared to think afresh, to experiment and fins solutions however hard and unpopular, is clearly missing. “ A court”, says Fuller, “is not an inert mirror reflecting current mores, but an active participant in the enterprise of articulating the implications of shared purposes …” (Curzon: 2001; 323). In its substantive, purposive interpretative function the court shapes opinion, and may even create law. The question therefore is, what legal function and purpose does the interpretative function of law serve?

I shall not spend too much time setting out how I believe that some of the law-making of our time seems hell-bent on undermining so many of the principles that would have promised a transformational system of law. The sneaky resurrection of the Key Points Act from the apartheid law book, or the recently passed Protection of State Information Bill, or the Traditional Courts Bill, and elements of the Legal Practice Bill now making its way through parliament, are all suggestive of a conservative, reactionary mode of law making that is incompatible, I suggest, with constitutional norms.  With it, there are also signs that police management and practice may well show signs of an unreformed securocratic system we thought we had buried with apartheid. I flag these matters without debating them extensively because they bear reflecting upon in terms of the view I take of the law in this paper.

And yet it will be hard to suppress totally the “argumentative” democracy ideals that Amartya Sen refers to. This refers to the idea that there can be no meta-narrative that is totalizing of the South African consciousness. Narratives of struggle and resistance and revolt will be hard to suppress forever as evidenced in the dogged resistance to apartheid that Bram Fischer so gloriously epitomized. Instead the South Africa identity post apartheid is under construction. There have been episodes, now sadly past, when we were confident that that common nationhood was a distinct possibility. Our patent lack of success in thus far, means that our common identity will become a product of continuous struggle; of ideas and dogged assertions, that have as their foundation, the Constitution.


N Barney Pityana GCOB

Rector: College of the Transfiguration Grahamstown.

Bloemfontein, 26 April 2013.



1.      Arendt, H. 1958. The Human Condition. Chicago: University of Chicago Press.

  1. 2.      Bram Fischer. 1966. Statement from the Dock. 28 March 1966.  Available at: http://www.sacp.org.za/main.php?ID=2368
  2. 3.      ‘Black man in a white court: Nelson Mandela’s First Court Statement – 1962. 28 October 1962. Accessed: http://www.anc.org.za/show.php?id=3763
  3. 4.      Court. A. Hannah Arendt’s Response to the Crisis of Her Times. 2008. SAVUSA Series. Pg 263.
  4. 5.      Curzon LB: Jurisprudence; 201. Cavendish, London.
  5. 6.      Letter sent by Bram Fischer to his Counsel in February 1965, when he went underground, and read to the court. Accessed at: www.sacp.org.za/main.php?ID=2350
  6. 7.      Roux W & van Marle K. 2007. Post Apartheid Fragments: Law Politics and Critique. Unisa Press. Pretoria. Pp 34-58.
  7. 8.      The Constitution of the Republic of South Africa, 1996.
  8. 9.      The World Justice Project. 2006. Accessed at: wjp@wjpnet.org  
  9. 10.  Sathe. S.P. 2002. Judicial Activism in India: Transgressing Borders and Enforcing Limits. New Dehli: Oxford University Press. 2002.

[1] The Inaugural Bram Fischer Memorial Lecture, University of the Free State, 26 April 2013. “Shadow” in the title here is used in the sense of African indigenous religions as drawing from the ancestors, or casting a shadow on, or someone with a “shade” isithunzi – that is a benevolent influence and shaper of events long after death, a kind of ‘memorialisation’ of personality. Of course, I must acknowledge WA Saayman: A MAN WITH A SHADOW: The Life and Times of ZK Matthews, 1996, Pretoria, unisa, that from where the idea of the titled originates

[2] This may be an unusual word which ordinary dictionaries, I find do not have: “to forfeit a recognizance, especially given by the surety of someone admitted to bail, or to enforce a fine”  (The Oxford Dictionary of Law).

[3] One may note the ANC Draft Bill of Rights that was produced by the ANC Constitutional Committee, May 1992 that formed the basis of the ANC’s contributions to the Constitutional negotiations. It was endorsed at the ANC Policy Conference later that year.

[4] It is conceded that these are mere broad strokes observations but there are some instances one could point to in some of the judgments, for example, of Justice Mokhoro in the Constitutional Court, and of Judge President Ngoepe in the North Gauteng High Court.

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