Retirement ceremony of Justice Johann van der Westhuizen

February 24th, 2016
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By Kathleen Kriel

Chief Justice, Mogoeng Mogoeng (left) and Justice Johann van der Westhuizen delivering his last judgment in the Constitutional Court.

Chief Justice, Mogoeng Mogoeng (left) and Justice Johann van der Westhuizen delivering his last judgment in the Constitutional Court.

A special ceremonial session of the Constitutional Court was held on 29 January to mark the retirement of Justice Johann van der Westhuizen. The full Bench was present, including retired judges from the Constitutional Court, as well as a number of dignitaries and government officials.

Tributes

At the ceremony, which was open to the public, a number of professional bodies bid farewell to Justice van der Westhuizen, namely:

  • Chief Justice Mogoeng Mogoeng;
  • Chairman of the Advocates for Transformation, advocate Vuyani Ngalwana SC;
  • President of the Black Lawyers Association, Lutendo Sigogo;
  • Publicity Secretary of the National Association of Democratic Lawyers, advocate Gcina Malindi SC;
  • Co-chairperson of the Law Society of South Africa, Richard Scott;
  • Chairman of the General Council of the Bar, advocate Jeremy Muller SC;
  • Deputy Minister of Justice and Constitutional Development, John Jeffrey; and
  • Speaker of the National Assembly, Baleka Mbete.

Last judgment delivered

Justice van der Westhuizen delivered his last judgment before the retirement ceremony took place. In the unanimous judgment, the court had to decide on the constitutional validity of s 45 of the KwaZulu-Natal Planning and Development Act 6 of 2008 (the Act) in Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal and Others (CC) (unreported case no CCT 114/15, 29-1-2016) (Van der Westhuizen J).

The applicant, Tronox KZN Sands (Pty) Ltd (Tronox), is a large producer of titanium ore and titanium dioxide. In February 2014 its application for prospective land-use rights was approved by the fourth respondent, Umlalazi Municipality. Section 45 provides that any person who is aggrieved by a municipality’s planning decision may appeal to the first respondent, the KwaZulu-Natal Planning and Development Appeal Tribunal (the tribunal).

Before the tribunal could decide the two appeals, Tronox launched proceedings in the KwaZulu-Natal Division, Pietermaritzburg, challenging the constitutionality of s 45 of the Act.

The court held that s 45 was unconstitutional since the appeal process created by the province impermissibly interfered with the municipalities’ constitutionally-recognised power to manage municipal planning. The court declared the two appeals unlawful, subject to the declaration of invalidity being confirmed by the Constitutional Court.

Before the Constitutional Court, Tronox asked for confirmation of the High Court order. The confirmation application was opposed by the fifth respondent, the Member of the Executive Council for Co-operative Governance and Traditional Affairs (MEC). She contended that s 45 is constitutionally acceptable, as the tribunal is an independent and impartial body staffed by experts and not provincial officials.

The court confirmed the High Court order insofar as it declared s 45 of the Act is constitutionally invalid. It agreed with the High Court that s 45 of the Act interfered with municipalities’ exclusive constitutional power to make municipal planning decisions. The court held that neither a reading-down nor a reading-in was possible in this case. It also declined to suspend the declaration of invalidity. It held that appeals already finalised under s 45 were not to be affected. Appeals still pending in terms of the appeal process had to continue until finalised. However, in considering them, the tribunal was required to uphold the municipalities’ integrated development plans, if in existence. Accordingly, the MEC’s application for leave to appeal was dismissed and she was ordered to pay the legal costs of Tronox.

From left: Black Lawyers Association President, Lutendo Sigogo, and Law Society of South Africa Co-Chairperson, Richard Scott attended the retirement ceremony of Constitutional Court Justice, Johann van der Westhuizen (middle).

From left: Black Lawyers Association President, Lutendo Sigogo, and Law Society of South Africa Co-Chairperson, Richard Scott attended the retirement ceremony of Constitutional Court Justice, Johann van der Westhuizen (middle).

He will be remembered for his humour

Chief Justice Mogoeng said it was a unique and challenging task to pay tribute to Justice van der Westhuizen and expressed his appreciation to the University of Pretoria for producing, ‘a giant’ like Justice van der Westhuizen, and also continuing to demonstrate their confidence in him without hesitation by having him return to the university after his retirement from the court.

Chief Justice Mogoeng said Justice van der Westhuizen has a particular gift of being humorous regardless of where he found himself and quoted Justice van der Westhuizen’s doctorate speech where he said: ‘“A sense of humour is very useful when one deals with the stress of human relationships and conflict.” This is true indeed. Many people do not know how many times we go through very difficult moments as justices of the Constitutional Court at conference, when we deal with issues, particularly judgments.’

Chief Justice Mogoeng said that many South Africans do not have the resources to send their children to university and added that there were worries about the quality of the LLB degree, with suggestions that it should be a five-year degree and added that he was worried about the situation. The Chief Justice said that in Europe the equivalent of the LLB degree is three years and the quality was beyond reproach. Chief Justice Mogoeng asked: ‘What is it that is so fundamentally wrong about South Africa, that in circumstance where Europe has it for three years, we have it for four years and yet the quality seems to leave much to be desired?’ Chief Justice Moegoeng said that maybe Justice van der Westhuizen could offer some of his time and do some research in this regard and how the quality of the degree can be improved.

Protecting the human rights

Mr Jeffrey referred to a conference that he attended, where Professor van der Westhuizen, as he was known then, said ‘“The ideology of racism still poisons everything in South Africa. … The whole nature of the political system had to change.” In short, 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.’

Mr Jeffrey said that in the year of the 20th anniversary of the Constitution, the role of the Constitutional Court and its judgments in protecting people must be acknowledged. ‘If one considers many of the court’s judgments, and in particular, some of those written by Justice van der Westhuizen, it is evident how the court has gone about formulating and protecting the rights of the poor and the marginalised, guaranteeing their constitutional rights,’ he said.

Mr Jeffrey concluded by saying: ‘As we pay a fitting tribute to Justice van der Westhuizen we know that whoever has to fill his position will have big shoes to fill. The challenge for the Judicial Services Commission will be in finding candidates who can fill these big shoes and follow in his footsteps – incumbents who further contribute to the collective wisdom of this court.’

Constitutional Court Justice, Johann van der Westhuizen with his sons Alexander (left) and Vincent.

Constitutional Court Justice, Johann van der Westhuizen with his sons Alexander (left) and Vincent.

Personal history of Justice van der Westhuizen

Justice van der Westhuizen was born in Windhoek Namibia. His father was a civil servant who as the Justice said: ‘Wrote Apartheid propaganda by day and revolutionary Afrikaans poetry about the red flag of the resistance by night. Who pointed out the cruelty of human rights abusers to a confused toddler, and a mother, who thought that one must: One, save money; two, obey God; and three, obey the government.’

The Justice and his family moved to Pretoria after being effectively expelled from the then, South West Africa, ruled by Apartheid South Africa, because of a short story that was written by his father, in which he says his father ‘insulted important people’.

Academic life

Justice van der Westhuizen received degrees in BA Law (cum laude) LLB (cum laude), LLD and LLD honoris causa from the University of Pretoria. He spent time doing research in Germany as an Alexand von Humboldt-Fellow and also spent time in the United States of America, the Netherlands and the United Kingdom.

Justice van der Westhuizen recalled how the University of Pretoria was known as the Voortrekker University and was the largest Afrikaans University in the World and while he studied there, seminars were held entitled ‘Threats to the Afrikaner’. ‘When we invited black speakers to conferences, in the 1980s even, we had to fill in forms to state, amongst other things, whether the speakers would use the toilet facilities on the campus.’

Justice van der Westhuizen was a professor and the head of the department of legal history, comparative law and jurisprudence at the faculty of law. He said that the University gave him the opportunity to start a new course on legal philosophy and allowed him to start the Centre for Human Rights, which has since won numerous prizes for its work in Africa and elsewhere in the world. He said that while in Germany, he learnt that criminal procedure was based on and linked to human rights. He became involved in human rights activism and the constitutional negotiation. As an academic he has taught widely in South Africa and abroad and presented numerous papers at national and international conferences.

Life in law

Justice van der Westhuizen was admitted as an advocate of the High Court and was an associate member of the Pretoria Bar. He acted as counsel in many human-rights matters, and served as a consultant and in-house advocate for the Legal Resources Centre and on the governing body of Lawyers for Human Rights.

Justice van der Westhuizen said that the Constitution drafting process was an enormous experience. He worked with the likes of Baleka Mbete, Naledi Pandor, current deputy president Cyril Ramaphosa and others and he joked that he got his ‘photo opportunity’ with former president, Nelson Mandela.

In 1999, Justice van der Westhuizen was appointed by former President Mandela, as a Judge in the Transvaal Provincial Division of the High Court (now the Gauteng Division) in Pretoria. Justice van der Westhuizen said that he had learnt a great deal from his five year tenure at the 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,’ Justice van der Westhuizen said.

He said that former President, Thabo Mbeki, appointed him to the Constitutional Court on 1 February 2004, in spite of the protestations of the opposition leader at the time.

Chief Justice, Mogoeng Mogoeng and Justice Johann van der Westhuizen, at the special ceremonial session of the Constitutional Court held on 29 January.

Chief Justice, Mogoeng Mogoeng and Justice Johann van der Westhuizen, at the special ceremonial session of the Constitutional Court held on 29 January.

Legacy

Justice van der Westhuizen, said that a journalist once asked him what kind of legacy he would like to leave behind after leaving the Constitutional Court. Justice van der Westhuizen said that he told the journalist that he had not yet thought about it. At his farewell, he jokingly said: ‘But now, I think my legacy may well be, that through a few of my judgments and speeches, and the speech of the deputy minister, 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.’

He said that the 12 years in the Constitutional Court was a wonderful privilege and honour and that the founding father and mothers achieved a miracle. Out of nothing, they founded a court that is an international benchmark admired by the world. ‘The values of the Constitution live on and we remain bound by the precedents set by its decisions,’ he said. He added the court’s work and its environment have changed. ‘According to statistics … 27 applications were received in 1998 and 14 judgments delivered. … In 2004, when I was appointed, this court received 75 applications and gave 17 judgments. In 2014 we received 219 applications and delivered 35 judgments. And on the agenda of the judges conference [held on 25 January] … 72 new applications were, amongst other issues, also requiring attention,’ Justice van der Westhuizen told the court.

Justice van der Westhuizen thanked his colleagues in the court for the honour and privilege to work with them and also thanked his wife, Sarojini and his three children, Alexander, Dassie and Vincent, for all their support.

Seven wishes

In his conclusion, Justice van der Westhuizen concluded with a wish list for the future. He wished:

  1. For democracy to grow stronger and for all in South Africa to realise that humankind has not been able to think of a better alternative for democracy, in spite of all its flaws. He said democracy is something that needs to be worked on continuously.
  2. The Constitution be respected. He said that it might be a result of a compromise, but it did not mean that it represents ‘selling out’. ‘It was born from the aspirations, and the blood, and brains of our people. Before we blame it, before we amend it, let us study it closely and use it to its full potential.’
  3. That corruption in the public and private sectors be eradicated. Justice van der Weshuizen said ‘corruption eats up its own children’ and referred to a short story ‘Drie kaalkoppe eet tesame’ written by Afrikaans author Jan Rabie. ‘In this story it shows in gruesome graphic detail how the greed and gluttony of the greedy devour them and only their bloody, slimy, empty skulls remain around a restaurant table.’
  4. Poverty be eradicated and that all the people can receive a proper education and that people can be more equal. ‘It hurts and saddens an old judge, who has tried in a small way to work for a just society, to see children begging in rags in the blistering sun, 21 years in to our democracy.’
  5. ‘The trend among litigants and their lawyers, perhaps, especially in criminal matters, to use the rules aimed at ensuring a fair trial to play with technical loopholes in order to get postponements and avoid justice.’
  6. Judicial independence and integrity. The government, the non-government organisations and the business world must respect the independence of the judiciary. ‘The judiciary is one of three indispensable arms of the state. I wish that the judiciary would not be undermined by vulgar populist attacks by disobedience to court orders, by attacks on the integrity of judges. A judge in a leadership position once said at a conference, that the courts must earn their independence. How can they earn it? Should they first show their loyalty to politicians or business or some or other force? Independence is not to be earned, it is a constitutional imperative. … A court that is not independent is not a real court. … The responsibilities on judges in courts are huge. Independence is not only to be free from political control, it comes from within, and it is directly linked to integrity. We must be honest with ourselves and with all those around us. We must guard against all the temptations and petty grievances and aspirations for promotion or other advantages and desires for temporary joy that comes from the windmills of our minds and the dark corners of our psyche in judgments and otherwise. Judges are humans and human beings make mistakes, they stumble, hurt and get hurt. Judges must be in touch with their society but try to be independent at all times from undue temptation.’
  7. That South Africa can emerge from racism and accusations of racism. Justice van der Westhuizen said that he does agree that ‘racists should run’. ‘I wish that racist thoughts and conduct would stop. There is absolutely no place for it in our constitutional democracy, but I also wish that we would all pause when we accuse others of racism and ask why do we do it? To expose an evil? That is our duty. To paralyse others in order to gain power or material wealth? That is what Apartheid did. This is how Apartheid used race for a long time. I wish that all of us, before we solemnly declare “I am not a racist” would pause and look deep into our hearts and souls. The world is not just black and white. There are at least 50 shades of grey or perhaps brown in between.’

Kathleen Kriel  BTech (Journ) (TUT) is the production editor at De Rebus.

This article was first published in De Rebus in 2016 (March) DR 5.