Compiled by Barbara Whittle

Justice Thembile Skweyiya and his wife, Sayo Skweyiya, at his retirement ceremony at the Constitutional Court on 6 May 2014.

Expressing the condolences of the attorneys’ profession to the family and friends of retired Constitutional Court Justice, Thembile Skweyiya, who passed away on 1 September, Law Society of South Africa (LSSA) Co-chairpersons, Busani Mabunda and Richard Scott said Justice Skweyiya – who started his legal career as an attorney in 1968 – went on to serve the nation with great distinction as an anti-apartheid practitioner, advocate, judge of the High Court, as well as a Justice of the Constitutional Court.

They added: ‘Justice Skweyiya has been widely regarded as the first
African to obtain silk in South Africa. He practised as an advocate not only in the commercial sphere but increasingly in political, human rights and civil liberties matters, and represented South Africans across the ideological political spectrum who had been arrested and detained for opposing a racist and oppressive regime. Through his 13-year tenure (two as an Acting Judge) on the Constitutional Court Bench, Justice Skweyiya made an impact on the body of constitutional jurisprudence and indeed made significant and bold contributions to the development of our constitutional democracy.’

In fact, his 2009 judgment in Leon Joseph and Others v City of Johannesburg and Others 2010 (4) SA 55 (CC) was described as an exciting development in South African jurisprudence, which in effect broadened the scope of application of administrative law procedural fairness to apply to decisions related to the public law duty of the state to provide basic services effectively, efficiently and fairly and the concomitant public law right of people to receive those services in that manner. Some hailed this decision as signalling the re-emergence of the value of Ubuntu in the relationship between the government and its citizens.

The Co-chairpersons recalled Justice Skweyiya’s words to law students at the Fort Hare University, where he was Chancellor: ‘We should all be proud of the strength and independence of our judiciary. It is this independence which allows us all – judges, magistrates and lawyers – to uphold the rights of South Africans. He reminded us that the Constitution not only tells us what the law must be, it also tells us what kind of lawyers and jurists we must be:

“To be a lawyer in South Africa today you must act with integrity, and in doing so you will ensure that the judiciary remains independent and that the rule of law remains … To be a lawyer in South Africa today means that you are committed to this ideal – that you will play your part in creating a democratic society where every person can realize the rights protected in the Bill of Rights.”’

Mr Mabunda and Mr Scott noted that indeed, Justice Skweyiya had been such a lawyer and such a judge.

Mr Mabunda, in his capacity as President of the Black Lawyers Association (BLA), said history would remember Justice Skweyiya as a renowned human rights lawyer who fought the battles of oppressed South Africans in spite of serious life threats both to himself and his family. ‘He put lives and the plight of his fellow countrymen above his personal interests,’ he said.

Mr Mabunda added that the BLA was deeply troubled by the void left in our society due to the death of this legal icon. ‘The death of this legal giant came at the most crucial moment in the development of our legal jurisprudence post the Apartheid era.’ He added, however, that BLA was comforted and consoled by the fact that Justice Skweyiya had left behind his legal knowledge and expertise in the body of judgments handed down when he was on the Bench and in the rich legal jurisprudence he developed throughout his legal career as a selfless advocate of the oppressed.

KwaZulu-Natal Law Society president Manette Strauss said that, in his practise as an advocate – a first in the black community – and subsequently as a judge, Justice Skweyiya had manifested the qualities of integrity, impeccable honesty, a keen intellect and decorum, which underpinned the esteem, status and dignity of our courts. The modesty of his person and his abiding courtesy were his renowned attributes. She added: ‘He practised his craft at a level to which his colleagues aspired to. In addition, the attributes of fairness, independence and objectivity were particularly compelling in Judge Skweyiya as is evidenced in the high profile cases in which he appeared as counsel and other cases which he dealt with as a judge especially in respect of the constitutional prescriptions of socio-economic rights and accountability in governance.’

Ms Strauss added that Justice Skweyiya gave the law and, more broadly, the Constitution a liberal purpose of interpretation to enable the Constitution to play a creative and dynamic role in the expression and the achievement of the ideals and aspirations of our nation and in the articulation of its values.

Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2015 (Oct) DR 24.