By Kathleen Kriel
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:
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.
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.’
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.
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:
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.
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