Legal fraternity mourns legal legend

February 1st, 2013
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By Nomfundo Manyathi

Former Chief Justice Arthur Chaskalson was described as a legal legend, a towering intellect, as well as wise and highly principled during his memorial service at the Johannesburg City Hall on 5 December 2012. The service took place after Justice Chaskalson (81) died on 1 December. Speakers at the service included President Jacob Zuma; former Chief Justice Pius Langa; Deputy Chief Justice Dikgang Moseneke; lifelong friend, advocate George Bizos; speaker of the National Assembly Max Sisulu and President of both the Black Lawyers Association (BLA) and the Law Society of the Northern Provinces, Busani Mabunda, who spoke on behalf of the Law Society of South Africa (LSSA).

The service was also attended by members of the judiciary, Gauteng Premier Nomvula Mokonyane and members of the executive council.

Justice Chaskalson was appointed as the first President of the Constitutional Court in June 1994 and was Chief Justice from November 2001 until his retirement in 2005. On his retirement, then President Thabo Mbeki described him as a ‘giant among the architects of our democracy’. Justice Chaskalson obtained a BCom degree in 1952 and an LLB degree (cum laude) in 1954 from the University of the Witwatersrand. He was admitted to the Johannesburg Bar in 1956 and took silk in 1971. During this time he represented members of liberation movements in a number of major political trials between 1960 and 1994, including the Rivonia trial.

Justice Chaskalson was also one of the founders of non-profit organisation the Legal Resources Centre (LRC). He was the centre’s director from November 1978 until September 1993, during which time the LRC challenged the implementation of apartheid laws. Justice Chaskalson was also a member of the Judicial Service Commission from 1994 to 2005 and served as its chairperson from 2001 until his retirement on 31 May 2005.

Justice Chaskalson helped draft the Namibian and South African constitutions. He was the first chairperson of the Southern African Judges Commission and chaired the Eminent Jurists Panel appointed by the International Commission of Jurists to investigate the impact of terrorism and counter-terrorism on the rule of law, human rights law and international humanitarian law.

Following his passing, President Zuma declared his funeral a special official one and national flags were flown at halfmast across the country from 3 to 7 December.

In a press release, Justice Minister Jeff Radebe said: ‘South Africa has lost a profound jurist, a scholar and a lawyer of impeccable intellect. At the same time that we mourn his passing, it is befitting that we all celebrate his titanic legacy, which many had benefited from.’

At the memorial service many of the speakers shared similar sentiments about Justice Chaskalson.

President Zuma

In a speech at the service, President Zuma said: ‘Today we have the opportunity to acknowledge his impeccable and selfless contribution to the attainment of the free and democratic society we have all come to enjoy today. … . He believed in, and fought for, the ideals outlined in the Freedom Charter, that South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of all the people.’

President Zuma said that among the first decisions penned by the Constitutional Court under Justice Chaskalson’s reign was S v Makwanyane and Another 1995 (3) SA 391 (CC), in which the court ‘boldly’ found the death sentence unconstitutional.

President Zuma said that, in Justice Chaskalson’s memory, the executive committed to improving the implementation of programmes to improve people’s lives.

Justice Langa

Former Chief Justice Langa paid tribute on behalf of those with whom Justice Chaskalson served at the Constitutional Court. He said that Justice Chaskalson was wise and had high principles, adding that he was also generous and shared his skill and talent.

Justice Langa said that Justice Chaskalson worked hard to eradicate inequality, oppression and poverty, adding that he was a man of action. Justice Langa said that he always maintained his dignity and he had a great sense of humour. He added that those who worked with him were privileged to have done so. ‘He was a good listener and listened to all of us. He was a good supporter and supported all of us. The Constitutional Court is a shining exemplary to the world and he is to thank for this,’ he said.

Justice Moseneke

Deputy Chief Justice Moseneke spoke on behalf of Chief Justice Mogoeng Mogoeng, who was unable to attend the service. He said that Justice Chaskalson had lived a full life and it was a privilege to have served with him. He said: ‘We promise we will remain true and faithful to what he has built.’

Law Society of South Africa

Mr Mabunda said that the LSSA was deeply saddened by the death of Justice Chaskalson, whom he described as ‘one of the famous champions of human rights this country has ever given birth to’, adding that the role he played in representing former President Nelson Mandela and others in the Rivonia trial should not be forgotten.

Mr Mabunda said: ‘He stood up … while it was unfashionable for a white person to … stand and be counted amongst the few who were willing and ready to represent black people in the darker days of apartheid. In the process he waived his “rights” and “privileges” which were enjoyed by the majority of white people within the legal fraternity. In contrast, Arthur Chaskalson chose to be on the side of the disenfranchised, poor and downtrodden.’

He added: ‘When the time came, before his actual retirement age, he reportedly approached past President Thabo Mbeki to relieve him of his duties and argued that, in line with the Constitution as well as the constitutional imperatives, the time [had] come for a black person to assume the role of leading the Constitutional Court. This was aimed, amongst other reasons, to ensure that that particular court progressively works towards broadly reflecting the demographics of the country with respect to race.’

Mr Mabunda said that after his retirement Justice Chaskalson ‘continued to be a balanced thinker who embodied the essential characteristics of the judicious judge who aired his views without fear, favour or prejudice’.

Mr Mabunda said that South Africans had a duty to scrutinise Justice Chaskalson’s recent critique of the Legal Practice Bill (B20 of 2012), delivered three weeks before his passing.

‘It will, in his legacy and in remembrance of him, be pivotal to apply our minds and digest his views so as to craft the proper destiny of this country in line with the spirit, purport and objectives of our Constitution, having regard to those who genuinely and legitimately fought to relieve this country from the shackles of oppression,’ he said.

General Council of the Bar

Advocate Jeremy Gauntlett paid tribute to Justice Chaskalson on behalf of the General Council of the Bar. He said that the legal fraternity should celebrate Justice Chaskalson’s life, for he lived a full one.

Mr Gauntlett described the late justice as a ‘superb presiding officer and towering intellect who served his country well using the rule of law’. He said that when the advocates at the Bar were timid and doubtful, Justice Chaskalson gave them courage. He concluded by saying: ‘It is not often that a colleague is this loved, yet we knew him well and we still loved him.’

Advocate Bizos

Mr Bizos spoke about how he met Justice Chaskalson in 1952 when they were students at the same law faculty. He said that, unlike him, Justice Chaskalson was not involved in student politics but one event led to them becoming lifelong friends.

Mr Bizos said that the law faculty held an annual dinner that black law students were not allowed to attend. There were eight black students in their class and Mr Bizos suggested that the entire class boycott the dinner if the eight could not attend it. Some of the students were against the suggestion and called a meeting to vote on it. At the meeting Justice Chaskalson said that there was no question that Mr Bizo’s idea was fair and after that there were no further comments. The event was boycotted.

Legal Resources Centre

National director of the LRC, Janet Love, said that Justice Chaskalson’s nature was evident in his decision to leave ‘a flourishing private practice as an advocate at the Bar in order to help establish and work at the LRC, adding that he would be deeply missed. ‘The LRC, an organisation that he founded 33 years ago, lost its trustee and mentor, and all who worked with him know that we have been truly privileged to have done so,’ she said.

National Association of Democratic Lawyers

In a press release, the public secretary of the National Association of Democratic Lawyers (Nadel), Nokukhanya Jele, said that Justice Chaskalson served the country with excellence as a distinguished jurist and a fighter for democracy, human rights and the rule of law. She said that his commitment to democracy and constitutionalism was not ‘newly found post-1994’ as for many decades before 1994 he had used his legal skills to defend those who fought apartheid and to fight the cause of the poor and marginalised who were relegated to second-class citizens by apartheid laws.

She said that Justice Chaskalson ‘identified fully’ with the cause to destroy apartheid and his contribution to South African society as a human rights lawyer, President of the Constitutional Court and later Chief Justice was ‘beyond measure’. ‘After his retirement from active service on the Bench, Justice Chaskalson continued to make a contribution to matters relating to the transformation of the legal profession and to South Africa’s democracy,’ she said.

Black Lawyers Association

Of Justice Chaskalson, the BLA said: ‘His immense role and contribution to the drafting of the interim Constitution, which was aimed at ushering the new ethos for which he aspired and yearned for throughout his life as both a human being and a legal practitioner, will continuously be remembered.’

South African National Editors’ Forum

The South African National Editors’ Forum (Sanef) remembered Justice Chaskalson as ‘a great South African and an untiring champion of an open democratic society’.

In a press release, Sanef stated: ‘As the media fraternity, we will particularly remember Justice Chaskalson for striving to ensure that the courts were open and friendly to the public and the media. In this regard, he opened the Constitutional Court for live coverage of judgments and later for full hearings. He also arranged for summarised judgments to be available for the media, thus making it possible for journalists to transmit complex rulings to the public speedily and accurately.’

Sanef also commended Justice Chas­kalson’s commitment to the openness of the judicial system, which set an example for the other levels of courts, which now allow regular live coverage of hearings and judgments.

Nomfundo Manyathi, nomfundo@derebus.org.za

This article was first published in De Rebus in 2013 (Jan/Feb) DR 6.