Public Lecture by Deputy Minister of International Relations and Cooperation, H.E. Mr Ebrahim I Ebrahim: “The impact of former President Mandela’s legal background and the ideal of a new South Africa”, University of Cape Town, 29 July 2013

Dean of the Law Faculty of UCT
President and Members of the UCT Law Student’s Council
Students
Ladies and Gentlemen

It always gives me great pleasure to address students and to engage with young, bright minds, because you are the leaders of tomorrow. And what better place than the University of Cape Town to reflect on the leadership and the legacy of our former President, Nelson Mandela, who spent so much of his life incarcerated not too far from here. From here you can actually see the tiny island to which he was confined in a tiny cell, yet his influence was felt across the entire world.

Ladies and Gentlemen,

Our subject of discussion is therefore appropriate as the world celebrates Nelson Mandela Day on the 18th and devotes time during the month of July to celebrate the virtues of sacrifice and caring for each other.  We also mourn the recent loss of one of South Africa’s best legal minds, Pius Langa, a dedicated Human Rights jurist and veteran struggle activist who served with distinction as South Africa’s fourth post-apartheid chief justice. 

To properly understand the impact of Mandela’s legal background on South Africa, I think it is important that we pause to reflect on Mandela the man and his significance as a historical figure.

Who is Mandela?

In addition to being regarded as an icon and one of the giants of world history, Mandela is also seen as a revolutionary, a freedom fighter and an African Nationalist. In his blood flowed the Gandhian spirit of non-violent resistance. Above all, he was a peace-maker and reconciler, who made the bold choice of accommodation and forgiveness over hatred and vengeance. Mandela was one time commander of the liberation armed wing that signed the Geneva Convention on Armed Conflict. He is also known as a prisoner on Robben Island and he became a global symbol when the free Mandela campaign became a rallying point for the anti-apartheid movement internationally.

But what is the significance of Nelson Mandela?

There are two Mandela’s. Firstly, Mandela was a product of the anti-colonial and anti-imperialist struggle. The end of the second world war ushered in the national liberation struggles, firstly in Asia and snowballing into Africa. Mandela was in the same category as the anti-colonial leaders such as Nehru, Gandhi, Gamal Abdel Nasser, Kwame Nkrumah, Julius Nyerere, Ahmed Ben Bella, Mao Tse Tung and many others. Mandela was among his international peers an outstanding fighter against colonial and imperialist exploitation.

But Mandela was also a product of the South African liberation struggle. He combined the nationalist and religious leadership of the forefathers of the ANC and liberation struggle such as Dube, Mahabane and others. Among his peers were political giants such as Walter Sisulu, Chief Albert Luthuli and OR Tambo, who moulded and shaped him to be a leader of our liberation movement and a leader of our people. His peers also included communists such as Moses Kotane, JB Marx, Yusuf Dadoo, Bram Fischer, Joe Slovo and others. They also shaped his thinking and his mode of operation, as he shaped theirs. He understood the importance of mass organization and action. He, together with Walter Sisulu and OR Tambo, was responsible for the 1949 programme of action that would change the complexion of the ANC and its alliance partners. Madiba became the volunteer-in-chief during the defiance campaign and set the tone for mass struggle. Thus Mandela was the child of the anti-colonial struggle and a child of the mass liberation struggle in South Africa. As we celebrate our Madiba, our icon, we must also pay tribute to all those who went into the making of Madiba. He is much bigger than those who fight over his legacy.

From his humble beginnings in Mvezu to his youth in Qunu in the Eastern Cape, he established himself in Johannesburg in a small legal firm with another legendary leader, Oliver Tambo. We can only imagine what a dynamic legal team they must have been and we are not surprised that they mostly worked on Human Rights cases, often on a pro bono basis. He experienced first hand how difficult it was for the indigent to access justice that they could hardly afford.

Both Mandela and Tambo were committed to the creation of a non racial, non sexist and democratic society , but as lawyers they were faced with four realities: First, that the laws of the country were unjust and perpetuated oppression, separation and division; second,  justice was dispensed by white males - in other words the judiciary was drawn exclusively from the white minority who generally not only implemented unjust laws but whose judgments were generally coloured by the racial bias embedded in their world view which expressed itself either overtly or subliminally. Third, that it did not matter if you were a black legal professional at the time, your dignity as a black person continued to be violated even in a court of law which ideally is where justice would be dispensed. Fourth, it was hard for the black masses to access justice because of poverty. It is these contradictions he experienced very directly as a lawyer, political activist, detainee and accused person in the political trials, especially the treason trial and the Rivonia trial.

As a lawyer and as suspect and detained person, he encountered first hand how the justice system was flawed in that it allowed for detention incommunicado, that an accused could be detained for significant periods for political reasons without being charged, that detainees especially in political trials were tortured, that they were denied legal assistance and access even where the crimes were so serious that they could face the death penalty. These realties emboldened him, enhanced his spirit of resistance and intensified his resilience. The violation of human rights which he experienced as a lawyer and citizen shaped his vision of a constitutional dispensation which would be legitimate, credible and democratic; a constitution in which the Bill of rights is enshrined; a resolve to transform the judiciary into a legitimate, independent and representative organ that would protect and promote the constitution and the Bill of rights underpinned by the values of human dignity, equality and freedom.

President Mandela completed his LLB degree while imprisoned on Robben Island. At the opening of the new Constitutional Court building in Braamfontein, Johannesburg in 2004, he modestly joked that Law was “a profession in which [he] once dabbled without great distinction”.

Although he may not have spent much time as a practicing lawyer he would make a huge impact in the field of law. He is universally recognised as a symbol of the struggle against oppression, for his relentless pursuit of equality, freedom and human dignity. All these values and principles for which he was willing to make the ultimate sacrifice were in fact denied to him and his people by the Law of the day. Yes, it is easy to forget that Apartheid was not just an experiment in social engineering, pseudo-anthropology and a perversion of religious prescripts; it was also a legal construct. It was a judicial reality that was brutally enforced by the apparatus of the State.

Yet, Madiba remained steadfast in his belief in the rule of law. But laws that are just, that are humane and that above all, were grounded in universally accepted principles, values and norms. As a lawyer, he was therefore not against the law, but against unjust laws.  This belief found expression soon after his release in the public statements he had made.

In 1990, he told the European Parliament:

“…The human rights of all our citizens must be guaranteed under an entrenched and justiciable bill of rights, which should be enforced by an independent judiciary. The rights of every citizen to his or her language, culture and religion must also be guaranteed. These are some of the elements which have to be part of the new democratic constitutional framework.”

In 1991 he emphasised this point at the United Nations General Assembly, stating that:

We envision a South Africa which will, in all respects, belong to all who live in it, black and white. Its political life will be governed by a thoroughgoing democratic constitution, based on the principle of "one person, one vote", without any distinction on grounds of race, colour, gender or creed and without any element whatsoever of racial domination and discrimination. This will bring to its demise the present constitution of South Africa, which this Organization categorized as null and void.

We also want to see entrenched all the necessary provisions ensuring the fullest possible protection and advancement of the fundamental human rights of every South African citizen. As part of this, and to ensure the rule of law, there will have to be created an independent and non-racial judiciary, as visualized in earlier documents adopted by the General Assembly.

Today, thanks to that vision, South Africa is proud to have one of the most modern and progressive constitutions in the world. Under our new Constitution, South Africa is now:

  • a country that respects the Rule of Law

  • a country with an independent judiciary

  • a country where Human Rights are respected

  • a country where all people are equal before the law.

Both the interim and 1996 Constitution provided for a transformed judiciary based on ability and representivity. On becoming President of the South Africa he appointed the late Justice Ismail Mahomed as his first Chief Justice of South Africa. Ismail Mahomed was a gifted and brilliant lawyer who refused to accept an appointment to the bench in South Africa as this would lend legitimacy to a non-democratic dispensation. Quite incredibly there was a groundswell of resistance from judges in the then Appellate Division who literally wanted one of their own to lead the judiciary. It was also a paradox that the first chief justice who was appointed was an Indian from a racial group that was prohibited from staying or living in the Free State. These are among the many ironies of our judicial history. The legal fraternity is still grappling with the issues of transformation today both from a race and gender perspective.

The interim Constitution of 1993 and the Constitution of 1996 brought about significant of changes to the legal order in South Africa.  One of the changes that, in my opinion, has had the biggest impact on the day-to-day lives of South Africans was the introduction of a Constitutional Court in Chapter 8 of the Constitution.  This Court fast established a reputation for upholding the values of the Constitution through its well reasoned, high quality judgments.

From 1994 – 1999, the period during which Mr. Mandela served as President of our country, the Constitutional Court, amongst other judgments:

  • Outlawed the Death Penalty.

  • Ensured equal treatment under the law for gay and lesbian people by decriminalizing sodomy and ensuring equal treatment for foreign same-sexlife partners

  • Struck down presumption

Apartheid laws and security legislation had created many presumptions which shifted the burden of proof to the accused person. Mandela had first hand experience of the unfair impact of this reality. In political trials confessions were extracted through torture and militated strongly against the human rights notion of presumption of innocence. Presumptions were struck off as being unconstitutional

  • Declared corporal punishment for juveniles to be unconstitutional

It is interesting to note that, in coming to this conclusion, the Constitutional Court extensively reviewed international law and foreign law to inform its judgment on corporal punishment of juveniles.  This, as well, showed the new direction South African law took after the commencement of the new Constitutional era, in which our law has regard for international norms.  South Africa no longer exists in isolation but forms part of the international community and our law should, in as far as it is compatible with our Constitution, reflect that.

President Mandela, with reference to the Constitutional Court, told the story of how, when he was President of South Africa, the Court, under the Presidency of Judge Arthur Chaskalson, ruled against him in one of the first matters to be brought before the Court.  He said that was the moment when it was clear to him that South Africa was in safe hands with the Constitutional Court standing and operating at the apex of our democracy.

He was probably referring to the case of Executive Council, Western Cape Legislature and Others v President of the Republic of South Africa and Others in which Chaskalson authored the majority judgment.

President Mandela’s legal background and his strong belief in principles such as the rule of law and the importance of an independent judiciary resulted in him unreservedly accepting judicial decisions that were critical of government and even submitting himself to be a witness in court in his capacity as President of the Republic of South Africa – even though the Constitutional Court later found in President of the RSA and Others v South African Rugby Football Union and Others that the President, although subject to the Constitution, is not in the same position as other witnesses, and that the High Court order that compelled President Mandela to give evidence was flawed.

The commitments that South Africa undertook in our constitution also found expression in our international relations, with South Africa ratifying, during his Presidency, amongst others:

  • The Convention on the Prevention and Punishment of the Crime of Genocide;

  • The International Convention on the Elimination of All Forms of Racial Discrimination;

  • The International Covenant on Civil and Political Rights (ICCPR);

  • The African Charter on Human and Peoples' Rights; and

  • The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Because of the principles embodied in our Constitution, South Africa also made the necessary declarations under the African Charter on Human and Peoples’ Rights and under the ICCPR (The International Covenant on Civil and Political Rights) to allow individuals to lay complaints with the African Commission on Human and Peoples’ Rights and with the Human Rights Committee respectively, should they feel that their rights under these instruments have been violated.  To date, South Africa has not been found to be in violation of any rights under the African Charter (by the African Commission on Human and Peoples’ Rights) or under the ICCPR (by the Human Rights Commission).

Ladies and Gentlemen,

Madiba’s values and principles clearly impacted on the legal community of South Africa and continue to impact on every South African citizen and all other people who find themselves within our borders every day.  The basic principles which he subscribes to and which has found expression in our Constitution will continue to shape our society into a society that respects human rights, that recognizes the rule of law, that values the independence of the judiciary and that strives towards true equality for all.

Ladies and gentlemen, students of the Law,

What does Madiba’s great impact on our legal system mean for the future? We live in an increasingly litigious society and we cannot escape the fact that we are governed by the law, even before we are born to well after we die. I have no doubt that through your studies, you will become well versed with the letter of the law. My message to you today is to become equally versed with the spirit of the law, and to see the law as a pillar of a just society where we will continue to strive for a better life for all our people. In most countries it is still considered a novel idea to speak of socio-economic rights, whilst political and specifically civil rights reign supreme.

You will have to grapple with new challenges to the law as new technologies change our lives and our environment, where the global village brings various cultures, religions and values and principles into potential conflict. Your guiding light will have to be more than legal precedent. It must also be informed by our history as a country and as a people who have forged a national identity from a hard-won struggle that is grounded in our shared vision through a social compact called the constitution.

In 1964, during the Rivonia Trial, Nelson Mandela told the Pretoria Supreme Court:

“…I have cherished the ideal of a democratic and free society in which all persons will live together in harmony and with equal opportunities. It is an ideal for which I hope to live for and to see realised. But, My Lord, if it needs be, it is an ideal for which I am prepared to die.”

As future lawyers and as future leaders of our great country, honour Madiba’s legacy by never losing sight of that ideal.

For, in an ideal world, every day should be a Mandela Day!

I thank you.

 

 

 

 

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