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South Africa
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Tuesday 6/5/2004
From Freedom Fighter to Judicial Powerhouse.
Meet the extraordinary - Albie Sachs - Judge with South Africa's Constitutional Court. Despite - the Apartheid system throwing everything it could at him - including imprisonment in solitary confinement and trying to blow him up with a car bomb - this eternal optimist has gone on to energetically contribute to building a new legal architecture for all his fellow citizens.
Damien Carrick: Albie Sachs has had an extraordinary life and as a judge, continues to make an important contribution to his country. He has, to say the least, a highly unusual resume for a Constitutional Court judge. As a human rights barrister and academic, he actively opposed South Africa’s apartheid regime. He stood up to institutionalised racism, and used the courts (themselves a compromised institution) to help the system’s victims, secure what meagre legal protection the system allowed them.
And for this, he paid a huge price. Albie Sachs endured arbitrary imprisonment, solitary confinement, torture, exile and an assassination attempt which left him with permanent injuries.
When freedom did come, he was a crucial participant in the process, which led to South Africa’s new Constitution and its Bill of Rights. And since the mid-1990s, he’s been a judge on the very court that interprets that Constitution.
Now you might think someone like Albie Sachs, whose parents were both activists, would be preordained to grow up into a freedom fighter. But in fact that’s not the case.
Albie Sachs: It’s a very odd thing growing up white in South Africa, being the automatic beneficiary of all the privileges that go with it, and you don’t even think it’s privileges, you think that’s the way the world is. But my family was different from most white families. My Mum was a typist and her boss was Moses Kitani, a very prominent African leader. So instead of growing up in a home where a white woman had a black man as a servant, my mother was working for a black man and he was somebody she would say, ‘Hurry up, hurry up, tidy up, Uncle Moses is coming.’ So from a very early age, I learnt to respect human beings as human beings, and then the world around me just seemed very, very odd, and very kind of out of sync. that people weren’t being treated as human beings.
So I grew up in a home that made me very sensitive to racism, to unfairness, to injustice. But I hated it when my parents assumed that I would follow their views. And it was only when I got to university, it was actually my first year, I wasn’t politically active at all. I belonged to the Mountain Club, I played some cricket, I used to go to the Stack Room and read Heinrich Heine and new poets I was discovering outside of English Lit. And then suddenly I met a young crowd who were very active, very anti-racist, and now it was my peers, my age group, and it was terrific. We used to climb the mountain and we used to have all-night parties and walk home discussing deep questions of philosophy and human existence, and then I felt totally at home with that group. And within a few months, I was joining in a campaign called The Defiance of Unjust Laws Campaign, led by thousands and thousands of black people who just sat on benches marked ‘Whites Only’, got into railway carriages marked ‘Whites Only’, walked over bridges marked ‘Whites Only’. And it sounds a little bit sad, but four of us in Capetown, whites, sat on a bench marked ‘Non Whites Only’.
Damien Carrick: So you parked your bum on a non-whites park bench; I believe you were hauled before the courts?
Albie Sachs: Yes, it was in a Post Office in fact, and we were very, very serious. I was the leader of the group and writing a telegram to the Prime Minister protesting, and they wouldn’t arrest us. It was quite irritating. And eventually blacks sat on a Whites Only bench, it just whipped off in no time. Eventually we were arrested and taken to court and then to my total shame and humiliation, the magistrate noticed I was only 17, which made me a juvenile, so my name was never mentioned at all, and he said, ‘Do you have a parent in court?’ and my brave mother stood up and said, ‘Yes, here I am’, and he sent me home to the care of my mother. So far from being the revolutionary leader engaging in a non-racial, anti-racist campaign with a name and identity, I was a juvenile sent home to my mother.
Damien Carrick: You went on to complete your studies in law and become a barrister; what kind of legal work did you do?
Albie Sachs: Well it was really kind of half-and-half, and the one half had almost nothing to do with the other half. The first half was what’s loosely known as civil rights work, defending people, mainly black people, charged with not having their documents in order, and under the racist laws, you had to have a pass to move around, you had to have a pass signed by your employer to work, you had to have a pass to be out on the streets after a certain hour at night, you just needed documents for everything and my phone was ringing non-stop, people were coming to me with those kinds of cases. So that was one half of my practice.
The other half was the practice that every young barrister loves to have: divorce cases, commercial work, contract, road accidents and so on. But I felt like split in two, because on the one side the law was being used for injustice, to promote injustice. The atmosphere in the courts by and large, it was white magistrates, white police, white judges, white registrars, whites in charge of the whole thing, black people being accused under laws that singled out blacks for discriminatory treatment. And if you wanted to defend them, you had to accept the validity of those laws, to do the best for them. And all the mental gymnastics how to call your client when the judge, who might be a kindly person, would call a woman in her 40s, 50s, ‘Rosie’, and to me she was Mrs Odanis, or Mrs Shaballah, but if I used the term ‘Mrs’ when the judge had called her ‘Rosie’, it’s like a little blow to the judge, and it can be damaging to my client. On the other hand, I can’t call her ‘Rosie’, I just feel it’s so disrespectful. And the terms that we use ‘Natives’, ‘Bantu’, and we would use the term ‘African’, it was affirmative and had dignity.
So it was very, very strenuous that side. The other side would be erudite judges, a long legal tradition. One could appeal to concepts of equity and justice and fairness. It was exhilarating to be in the highest court in the land, and yet the feeling all the time was injustice, injustice, injustice. In fact the very week when I did my first, I was only about 22 I think, 23, my first appeal in our, we used to call it the Appellate Division, the highest court in the country, the Attorney took me for lunch to his club, and he said, ‘You know, last week there was a brilliant young Indian person from Johannesburg who just had the court eating out of his hand; I couldn’t take him to lunch here in the club. He went to his car and he had sandwiches and coffee from a thermos flask’. Appearing in the highest court in the land, there was nowhere where he could get a sandwich and my exhilaration because a Chief Justice came over to my table and said, ‘Well done young man’, something like that, the total dream of a young barrister appearing in the highest court, to be praised in front of your solicitor by the Chief Justice, just punctured completely the knowledge that as it turned out Ishmail Mahomed, who went on to become Chief Justice of South Africa, was subject to that humiliation.
Well that was the way the law was in our country.
Damien Carrick: Your work as a human rights activist and lawyer, incurred the wrath of the authorities, and you were arrested I think under the 90 day Arrest Without Charge scheme that was in operation at the time.
Albie Sachs: Yes, we could be detained for 90 days incommunicado, without charge, simply on suspicion I suppose in current terminology, it would be suspicion of knowledge about terrorism. And of course in the South African context, terrorism was defined in a way that included all opposition to racism in the country, and it wasn’t based on any charge, any indictment, any provable evidence, it was simply suspicion in the mind of a senior police officer, and you never knew how long you would stay in.
Damien Carrick: Because 90 days could be followed by another 90 days?
Albie Sachs: Well on the 90th day I was given my tie back and the clothes I wore when I came in, and formally released, and I was rather suspicious; and before I could reach the pavement outside the charge office, I was re-detained. So they went through the forms of detaining me for 90 days, releasing me, and then for another 90 days. And in fact I had another, I think it was another 78 days.
Damien Carrick: So you were in detention I think for about 180-odd days.
Albie Sachs: It was 168 days, each one scratched on the wall, marked, and I actually wrote ‘Sufficient unto the day is the evil thereof’. The only way I could survive was just day-by-day, get through it. Day by day, don’t fight it.
Damien Carrick: Tell me, how did you cope?
Albie Sachs: Well, badly. I got through, but I used to think that if you were brave enough and your cause was just enough, all you had to do was grit your teeth and you would get through. And I suppose it was then I discovered that we all have a thing called the unconscious, a side of you that’s just dying to get out, ingratiate yourself with the guards, with the people interrogating you, and the pain of isolation, of not having human company, of not having association, the sense of total misery, it’s endless. And what was surprising to me was the slogans about freedom and justice disappeared within 48 hours. The political slogans in almost no time. And what kept me going was a simple sense of honour. ‘I’m not going to let these people, I don’t even know what’s going on, why I’m resisting, but I’m not going to let them overbear my mind, my dignity, my personality.’
Damien Carrick: It’s interesting, because even though you were locked up, you were stripped of all rights, as a white person you were a lot better off than the black prisoners. In your book, you talk about hearing the sounds of young black men being beaten with sticks.
Albie Sachs: It was a terrible shock for me as a lawyer, to actually be in a place run by the law in the name of the law, to hear the screaming, the banging on the cell doors, the people being beaten and then the very worst for me was hearing the youths, the juveniles, who were whipped. And I never saw them, I would just see the little pieces of broken cane lying on the floor when I had my solitary exercise afterwards, and hearing a human being screaming, screeching like an animal, completely out of control, it’s something that registered with me like forever. And when years later I’m on the Bench and we have to deal with the constitutionality of corporal punishment as traditional punishment, I didn’t consciously go back to it, and the court was unanimous, but if human dignity means anything, this is not the way to go, in the name of the law, absolutely terrible.
Damien Carrick: You’re referring there to a recent decision of the South African Constitutional Court which found that it was unconstitutional or contrary to the Bill of Rights, for there to be corporal punishment of juveniles.
Albie Sachs: Correct. As a judicial punishment.
Damien Carrick: After his release from jail, Albie Sachs continued his activism, and two years later he was re-arrested. This time the conditions were even harsher: he was subjected to sleep deprivation. After that, he went into exile, working first in the UK and then Mozambique.
It was in Maputo, that country’s capital, in 1988, that Albie Sachs faced perhaps his greatest challenge when the South African government planted a bomb in his car.
Albie Sachs: It was a public holiday. I was working doing research on Family Law for the Minister of Justice. I was going to the beach and boom! suddenly, total darkness. I didn’t know what was happening, and I heard a voice saying to me, ‘Your arm is in lamentable condition, you must face a future of a cabbage, this is Ivor Gorrida’, whom I knew as a surgeon. And I said, ‘What happened?’ and someone said, ‘A car bomb’. And I fainted. But I fainted into happiness, I knew I was safe. And I felt a sense of total exhilaration that I’d survived, because I think everybody in our struggle wondered, ‘The State’s going to try and get at us, they’re quite ruthless; will I survive, will I get through, will I have the courage?’ And to get through the most awful moments and to come through, it’s better to lose an arm clearly and the sight of an eye, but basically I survived, I knew I was intact. And I felt somehow that I was my country, my country was I, that if they could do their worst to me, and they couldn’t exterminate me, South Africa that was 1988, the late period of apartheid, we’re going to survive. And I had an enormous confidence, almost an irrational confidence afterwards, which turned out to be totally rational, based on my recovery.
Damien Carrick: Your recovery was a very long and slow one. I think you went to the UK to recover. You had to re-learn a lot of basic bodily skills. Tell me about that.
Albie Sachs: I remember when I was being (I didn’t even know what was happening to me) taken to the hospital, I would have moments of consciousness, unconsciousness and I wrote ‘I think, therefore I am’. But it was just the faintest sense of existence. And then I told myself a joke as I was recovering from the bomb. It was Hymie Cohen falls off a bus and I was recovering from the operation, I’m in total darkness, and he gets up and he gives what appears to be the sign of the cross, and his friend says, ‘Hymie, I didn’t know you were Catholic.’ He said, ‘What do you mean Catholic? Spectacles, testicles, wallet and watch.’ Well I told myself that joke, smiling inside to myself, and I started with the testicles, and all there, and wallet, my heart was OK, and spectacles, I tried it, my head was OK, and then my left arm slid down my right arm and I realised watch has gone. But that’s when I felt this tremendous elation, and I thought to myself ‘I joke, therefore I am’. And then afterwards it was simple bodily functions. ‘I shit, therefore I am’. Each time, as I recovered, ‘I can write, therefore I am’, there was a sense of reconstructing my personality, ‘I stand, therefore I am’.
Damien Carrick: How long did it take for you to make a physical recovery?
Albie Sachs: I would say it was three to four months to be able to move around and dress myself and write and so on. But kind of slowly. And then another three, four months before I was starting to run, ‘I run, therefore I am’, and running to me was a sign of somehow engaging with the earth, feeling your feet ‘boof, boof, boof’, and I would imagine I’m back on the beach near Capetown where I grew up representing a kind of freedom and returning to my country and with a sense of triumph and, well I did run on the beach eventually, I returned to my country with a sense of triumph. And I’m a great believer in imagination. You’ve got to imagine better things. And in a way that’s what a Constitution does, it’s a balance between the concept of perfectibility, imagining a beautiful world, restrained by the greatest scepticism, the fallibility of human beings. Even the most wonderful people, freedom fighters, can become oppressors afterwards. And there’s a tension between perfectibility and corruption that’s at the heart of constitutionality and the Rule of Law. And in a way, we’ve lived both of those things, literally in our bodies and now it comes out in the texts that we use to establish a constitution for the country, the values that we aspire to, and the caution that we have when you’re on the Bench, knowing how fallible people are.
Damien Carrick: And that Constitution now contains a Bill of Rights, which to Australian ears contain some (we don’t have a Bill of Rights) but the rights that you do have, have an unusual ring to them: the right to clean water, language rights, cultural rights.
Albie Sachs: Yes, each one corresponded to an urgent need expressed by people who participated in this process. And so many black people would walk miles and miles and miles to get water. The water would often be polluted and dirty and it affected women even more than men. It related to poverty, it related to dignity, it related to health, it was imperative in our country that that should be mentioned, the right of access to adequate health, to education. So social economic rights are there. The problem then is, how do you enforce them without turning the courts into the government? And that’s a problem that we’ve had to deal with on the Bench, and basically we’ve said when the denial or non-granting in practice of these rights to people reaches a stage where they plunge below the level of decent existence, it becomes such a human issue, it’s not just poverty, it’s desperation, then the court can say, ‘That is intolerable, given the resources in our country, you must have a program. How you deal with it, that’s up to you as a government. But we are saying you are in breach of your constitutional obligations.’ And we’ve done that with regard to housing, for people who were living on a sports field with nothing, just sheets to keep the winter rains off them. We didn’t say to the government, ‘You must house these individuals’, we said to government, ‘You must have a program in place to deal with the desperately needy, not just the poor people living in shacks, but those who’ve got absolutely nothing at all.’ And we did it also in relation to the provision of the drug Novaraprine, to pregnant women living with HIV-AIDS, or HIV. The drug cuts the transmission to the baby by between 30% and 50%, and the government wanted to restrict the provision in the public sector to 18 selected sites, and then spend two years reviewing the whole thing. ‘There was no danger involved, there were management problems’, we said, ‘but there are doctors in other sites who can manage it, who want to manage it. The drug is provided free by the manufacturers, it’s unreasonable not to make it available generally’. And the government has accepted our decision.
Damien Carrick: South Africa is still wracked by profound inequality, and that means AIDS and violent crime are rampant; my question is, Is the Rule of Law enough to produce on-the-ground, meaningful justice for people as they go about their everyday lives?
Albie Sachs: On its own, it’s not enough, but it’s one of the fundamental ingredients. It’s a guarantee of security for everybody, of fairness and justice. It established institutions for people who want to bring about changes, so it’s a very free and open society, they can demonstrate, they don’t have to resort to arms to bring about changes. It’s important for creating a climate in which people can invest, knowing that there are constitutional controls, requiring transformation of our country, it’s not a status quo constitution that simply freezes an unjust set-up, it requires change and transformation, but insists that the change be brought about through fair means. And that’s one of the functions of our court. We’re an independent body, we’re outside of the political struggle, whatever our past activities might have been, we operate in terms of the values of the constitution and the processes laid down, we hear argument, we try and get a collective, collegiate decision if we can, if not we have separate opinions. And we convert the sort of issues that could tear the country apart, sometimes even small issues of big symbolical significance, we convert them into juridical questions, dealt with in the framework of constitutional reasoning, in a very calm way, and up till now, everybody’s accepted. And that doesn’t give someone a house or a job, or a motor car or a cell phone, or the things that people want these days, in itself. But it helps create the structure in which one can confidently go about your life, knowing that you don’t have to be a robber or crook or gangster to get on.
Damien Carrick: Although one of the architects of South Africa’s peaceful transition to majority rule, Albie Sachs found achieving reconciliation on a personal level with the man who organised his car bomb, a big challenge.
Albie Sachs: He phoned me in my chambers before giving evidence to get amnesty from the Truth Commission. And it was quite an intense moment, as you can imagine, opening the security door in our building and being face to face looking into his eyes, ‘So this is the man who tried to kill me’, and I can see him looking at me, ‘So this is the man I tried to kill.’ And when we walked down to my chambers I remember he had a stiff military stride, and I put on my best judge’s ambulatory stroll, to be in command even of that situation. And we spoke for a long time, and eventually I stood up; and his name was Henry, and I said, ‘Normally when I say goodbye to somebody I shake their hand, but I can’t shake your hand. But your help the Truth Commission, help South Africa, give the information that you’ve got to give, maybe we’ll meet one day, who knows.’ And when we walked back down the corridor I noticed he was shuffling along, really like a defeated soldier on retreat. And I closed the security gate and he disappeared.
Months later, I was at a party and I hear a voice saying, ‘Albie, Albie’. My God, it’s Henry, I couldn’t believe it, that he should be, this is a party of journalists and radio people and film makers, and he was beaming, he was very excited. And I said, ‘What happened, what happened?’ we got into a corner to get away from all the dance music, and he said, ‘And I wrote to them and Sue and Bobby and Farouk came to see me.’ Sue, Bobby, Farouk, he’s using first-name terms, he’s calling me Albie, as though he’s kind of a mate of ours. And he said, ‘And I helped them as you said.’ And I said, ‘Henry, I’ve only got your face to say that you’re telling me the truth,’ and I put out my hand and I shook his hand. He went away absolutely elated, I almost fainted, I felt very heavy.
I discovered afterwards that in fact he went home and cried for two weeks. And that had more impact on me than if he’d been sent to jail. He was part of a generation, working in the way that they did, defending an evil system in an evil way. It wouldn’t make my arm grow to put him in jail, to be vindictive against him, but the thought that he had contributed the little bit he had to contribute which was information knowledge, that he was willing to make a step to acknowledge what he’d done, and that he had had that feeling of introspection that had caused him to re-examine his whole life and feel the total moral defeat of the things that he’d stood for, that was very powerful, and I felt stronger for it. I didn’t feel I’d been weak, I felt if anything, I’d grown a little bit. That I can live in the same country with that person. That somehow we inhabit the same moral territory, that if he sits down next to me in a bus I’m not going to feel there’s some hidden agent out there that tried to exterminate me, that’s still around in this country, that dreadful mystery has gone. And there’s a real person who’s come up, a person like me, back in that world, back in the country, and we can be citizens living under the same constitution.
Damien Carrick: The book that you write describing the bombing and your recovery is called ‘The Soft Vengeance of a Freedom Fighter’, what is that ‘soft vengeance’?
Albie Sachs: When I was lying in hospital in London, recovering, the Bobby, who Henry said came to see him –
Damien Carrick: The policeman?
Albie Sachs: Henry’s the policeman, he said, ‘Bobby, Farouk and Sue came to see me’, that’s Bobby came to see me in hospital and he said, ‘Don’t worry, comrade Albie, we will avenge you.’ I thought, What does he mean, that we’re going to cut off the arms of people all over the country, blind them in an eye, is that what we want? And when I was writing the book on the whole process of recovery, and the thoughts going through my mind, and imagining the new country, I said, ‘If the person who put the bomb in my car is found, and put on trial, and acquitted because the evidence isn’t sufficient, that will be my soft vengeance.’ To live in a country where due process of law operates, the presumption of innocence operates, to me is much more important than sending just one more villain to jail. And then I wrote, ‘If we get democracy and everybody can vote, that will be my soft vengeance, as free and equal people, that will be my soft vengeance.’ And as they say, so it came to pass. And that feeling of soft vengeance is with me all the time in that sense, when I’m on the bench, when I’m defending the values of the constitution, when I’m having debates and discussion with my colleagues about the best way, whether to strike down a law, whether to invalidate governmental conduct, now that’s living one’s soft vengeance, it’s the vengeance of democracy, of freedom, of breaking the cycle. Someone has to break the cycle. If you simply say, ‘Well they were in charge and they messed us up, and locked us up without trial, and blew us up and so on’, now it’s our turn. When does it end? So somebody has to intervene, somebody has to say, Enough, already. And if you like, that’s another message of constitutionalism, it’s saying Enough, already..
by Damien Carrick
Australian Broadcasting Corporation : The Law Report

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