TRANSCRIPT OF ADDRESS BY ADV JEREMY GAUNTLETT, SC TO THE FW DE KLERK FOUNDATION CONFERENCE ON UNITING BEHIND THE CONSTITUTION, PROTEA PRESIDENT HOTEL, CAPE TOWN, February 2 2013

UNITING BEHIND THE CONSTITUTION IN SUPPORT OF THE RULE OF LAW

Ladies and gentlemen, walking into this room today was for me quite a remarkable experience - to see so many people who I have known for different reasons for decades. So many people I admire.  And I want to say, it is an honour to be here. I have reached, I think, that stage in life where, in the words of Mamphela Ramphela when she phoned me and asked me if she could nominate me, unspoilt by failure, for a judicial position, she said immediately, being Mamphela, "You should know it will do you no good to be associated with me".  And that is what I have to say to the Foundation in inviting me to speak to you today.

It will be hard to work out who is, and I do not mean this in any unkind way, the oldest friend and person I know in this room. And I would be very remiss if I did not tell you who I think it is, and that is that 41 years ago, as a student at Stellenbosch, I conceived as the chairman of a debating society, Die Stellenbosch Aktuele Aangeleentheidskring, the idea of inviting a black speaker to speak. The vice-chancellor was a gynaecologist who had married well and belonged to organisations which saw a natural match between gynaecology and running a university.

He wanted to know from me who the person was because the name did not ring a bell. So I explained to him that he was a prince, he was, as I put it, "die hoofman van 5 miljoen Suid Afrikaners". He said, you mean Zulus? So I said, well, yes, since you put it that way. And I was successful. I got into terrible trouble afterwards because the person that spoke did not accord in any way with the gynaecologist notion of a true hoofman who would be a little more grateful for his appointment. He riveted an audience. It was a turning point in the life of that university that a person as compelling and articulate and clever as Prince Buthelezi could meet and speak to people whose life experience had, for the most part, been confined to people who put petrol in your car or work on their father's farm.

I will never forget how he brought the audience - which was uneasy at first - to a roar when he was asked by a very earnest apostle of separate development as to how he conceived a society could function other than one in terms of the then-policy. And he said, an answerable question, do you have Jewish and Greek lavatories? In that one moment the unsustainability, the moral untenability, was highlighted in that one telling remark. So, forgive me for acknowledging at some length an association which goes back such a long time. 

I have to from now on be much briefer. I had the great honour of attending three out of six 90th birthday parties for Sir Sydney Kentridge a month ago. At one of them it was recollected that he is marked  - certainly in England the best since Thomas Erskine - and described by so many judges as the best advocate in the world. The anecdote was told of how he once was prompted into doing the unthinkable, which is intervening in a colleague's argument. And he got up because he could not stand it any longer.

The colleague was going on and on and on about a point which he wanted to point out to the judge had long ceased to be relevant and was now moot in the litigation. And the judge was an equable soothing type and said, "Mr Kentridge, I do think we must allow Mr X some latitude". And Kentridge looked long and hard at the judge and said, "My Lord, it is not his latitude I am objecting to, it is his longitude." 

So I need to confine myself before the same problem arises. May I say to you that for me almost the only important thing about the Rule of Law is trying to understand what it is, because the term is used as a rhetorical flourish. It is a semantic version of motherhood and apple pie. It is a flag which governments and other people like to wrap themselves in, and it is used indiscriminately. Now, for me, the critical thing is to try and understand what does this nebulous thing mean? May I suggest that the answer lies in contrasting it with what it is not. It is not a reflection of a state of affairs where there is of course no rule. 

And I would ask you to bring to your minds for a moment the terrible situation which goes on in parts of Syria, in parts of Somalia and the Sudan. There is simply no rule. There are bands which go to and fro, they momentarily have control, but rule, we would know without reaching for a dictionary, is something more consolidated than simply the muzzle of an AK47. It may entail the muzzle of an AK47 and be sustained by it but it is not to be equated with momentary shifting power.  So when we are talking about a Rule of Law society we are not talking about Somalia or Mali or Beirut in the time of its terrible division and conflict. 

Nor are we talking, secondly, of a situation where there is the kalashnikov, where there is rule but no law. Jackboot, certainly, where authority is exerted, but actually it is not even done through law. The government of Zimbabwe has taken to announcing legal measures by interview through The Herald newspaper, a government owned organ in Harare, the listing of farms and the like. It does not even trouble often with gazetting.

That is an example of the second situation I am talking about, where there is effective rule, not actually by law, by binding legal precepts which people can find.  And I do stress that is a very important thing about the aspect about the Rule of Law, you have got to find it. Some of us have been in countries where law reports have not been published for years.  And you can fell an unwary opponent with some yellow copy of a judgement. And he may trump you with a slightly less yellow copy of another judgement, neither of you knowing of the existence of these judgements. 

The third situation, and here society starts to get more sophisticated, there is rule, and this time it is rule under law. Who would ever think that so much of human misery could turn on a preposition?  When we talk about this third category of societies where you have rule under law, the great totalitarian countries come to mind. 

You think about Soviet Russia, about Germany for the most part, and of bad times in this country when there was a scrupulous legalism. There was not simply the passing shift abandoned with an AK47, the no-rule situation, there was not simply the second category of rule but no actual law. There was a remorseless and exorable system of laws which would determine where you would live, with whom you could have sex and other matters of the most private kind. 

Now, a good, interesting highlight of that means was actually disclosed. Lord Steyn (Johan van Zyl Steyn, who was an advocate in Cape Town), who went on to much better and successful things, as Senior Law Lord, recalled what Ehud Barak, the Chief Justice of Israel told him once. And that is, in Germany, up to 1943, Jews who were serving prison sentences would serve out their time for housebreaking, burglary, anything you name.

When they were discharged, the legalities having been scrupulously observed, the Gestapo would wait at the gates and take them and they would then go and die. Not by any law, but by a society now shifting into the state because of course there was no legal regime for the Holocaust. There was the Wannsee Conference, held in great secrecy, because some of the worse things have to be contrived and conceived of in secrecy because one would only be ashamed, as one in this country would only have been ashamed if there had been a legislative, an executive set of orders which ordained Vlakplaas. And that is how we have the interesting highlighting of a society which obeys a scrupulous legalism. Right through the midst of a war the prisons would keep not only those who were housebreakers, but Jews whose destiny was death.  And there would have been a far simpler solution which could have saved the government some rations for some months - simply look up who is a Jew and take them all out of prisons. No, the legalities had to be observed. 

Now, the fourth and final example by contrary distinction then is obviously the Rule of Law, that vital different preposition. And you would all know that it is almost the first thing said in the Constitution.  It is there in section 1(b) of the Constitution. And the question arises, what does it entail? Not the categories I have talked about. It contemplates then clearly that there is rule, not anarchy or complete licentiousness.

It contemplates Rule by Law, true, but it does not contemplate rule under law. Now, what is the crucial difference? It is for me most graphically illustrated by what the American philosopher Dworkin has said. That is, the power is like the hole in the doughnut - only an American could think of an example like that - the hole in the doughnut, it only has meaning by the fact that it is circumscribed. It has got to have definition, it is not a black hole. And that is the critical aspect, and that is the limitation of power. 

And that then gives rise to the immediate propositions, of course, that all power under the Rule of Law is constrained by law and no power may be conferred in terms that have no limits. Quick example: Many of us will remember the emergency years when huge discretions were conferred inter alia on Spoorweg Polisie. Not just them, but all policemen. They could effectively arrest and detain for extended periods a person who, in their opinion, was a risk under the old 'Public Safety Act', as it was euphemistically termed.

Likewise as to who was a communist. We all know those powers. And the critical thing was that the courts struggled in those days to find a limit to the power, because there had to be. It happened incrementally, through some very able and brave judges, wrongly written off in a time when everything pre-1994 is seen not to be just antediluvian, but is seen to be irredeemable. It is as if there was no Roman law, no Greek law. It is as if all virtue began with the Constitution. No, virtue did not. And, as Milan Kundera, the Czech writer put it, the struggle of people against power is the struggle of memory against forgetting. It is an eternal difficulty. 

So it is not just definition which is entailed, but there has to be implicit or inherent Rule of Law.  There is the concept first made famous by Montague in his 'Spirit of the Laws', and that is the notion of division of powers as between executive legislature and judiciary. It is what makes a theocracy unsustainable in those countries where you will find a simultaneous pronouncement on what is interchangeably morality, executive choices, and of course the adjudication of rights. Or in the case of most women in those countries, none at all. The division of powers, this is the most important point for me, does not immunise any of the three branches of government from the operation, the Rule of Law. It creates a sense, not of stasis, but of polarised mobility. 

The three are constantly rotating in the air and held in a certain balance by attraction and repulsion.  Not of conflict, because in the end if there is outright conflict we all know what happens in societies like that, because sooner or later somebody just has more Kalashnikovs than somebody else. 

But this sense of the legislature, the executive and the judiciary rotating around each other and holding each other in check obviously gives rise to problems of boundary-setting. Because if I had to think in a phrase of the function of judges, it is for me to patrol the boundaries of power. 

Now, Lord Nolan, in a very interesting case called M versus Home Office (where a Zairian asylum-seeker, notwithstanding a court order, was bungled out of Britain because the Home Secretary had simply robustly said, "well, he has got to go"), said, "The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the court as to what its lawful province is." 

That sets up a very difficult tension which we see illustrated time and again. That is this, there is ultimately an inherent tiebreaker in that system, and the tiebreaker is the judges declaring what everybody else's province is, and inherently their own. And there is no way of truly resolving that unless you resort to the elevation of democracy over constitutional democracy by saying, well, let us vote on it. You can do that. And you can contrast it. We all know that if one turned off the lights in South African homes, and certainly in the National Assembly and held a vote, we would still have the death penalty. So you have to decide as a society whether you are going to subject yourself to what is that social contract and stay with it. And it ultimately involves the executive not reaching for the Kalashnikov. 

I will never forget the experience which comes often to those of us who practice law, losing cases.  This particular one was for President Mandela. And going to him to explain, and the implications -that was in the Constitutional Court - and his reaction, as one would expect from the person we respect, there was not even a flicker of irritation. It was a severe political setback but he accepted.  He said, no this is where we leave it, they had spoken. And that was the epitomisation of somebody leading a society under the Rule of Law. 

But there is a problem and the problem is this: it puts enormous ultimate tie-breaking trust in the judges because ultimately they are doing that which all of us find difficult. You become - the Latin saying translated for those who did not go to the University of Stellenbosch - a judge in your own cause. It is as simple as that. And if you are determining the extent of your powers, it is a very difficult exercise. 

You may remember 'Murder in the Cathedral', when Thomas Beckett in TS Elliot's play is dealing with the tempters. Suddenly, on the road to Canterbury, another spectral figure appears - the fourth tempter. And the fourth tempter is actually spiritual power, spiritual delight in his own exultation through his apprehended martyrdom. The difficulty is that with the judges you have a situation that enormous power is put in their hands to use or abuse and of course, not to use power in certain circumstances may be to abuse it. The same way as not to take a decision in life may be to take a decision. 

There was one case involving New Clicks Pharmacy appealing certain regulations by the then Minister of Health, Dr Tshabalala-Msimang, controlling exit prices on pharmaceutical products. And the full bench in the Cape split two-one. We asked for leave to appeal. Now, the test for leave to appeal for the non-lawyers, is very simple. It is whether there is a reasonable prospect that another court would come to a different conclusion.

The judge delayed hearing the matter. He thought he would obstruct us. So we then had to go straight to the Supreme Court of Appeal, to say very simply that not to say "yes" for an unreasonable period of time is tacitly to say "no". So actually, as judges, we are here with leave to appeal, having been refused. And it was a risk. We took it and we won there, and we won again 6 to 5 in the Constitutional Court. But that is an illustration of adjudication gone wrong. 

There are other ones. There has been a recent adjudication in the matter of closing of schools in the Western Cape. A particular judge announced at an early stage of the argument, in a fit of irritation, that he would never close a school. Well, counsel in that matter should then and there have said, "Well Judge, if you will never do that which I am asking you to do and you are telling me that in advance, that is court bias, and I must ask you to go". But that also puts a strain on practitioners who have children to feed and lives to live. And that is one of the difficulties. That is why that fourth tempter on the road is a very dangerous one. It is only as you get a little older and grizzled and you feel you have less to lose that you can take on peccant judges, judges who are effectively abusing their power. 

You may find it strange that I emphasise this point because normally when people talk about the Rule of Law it is a quick one-two of saying, well, you get to the situation where someone has got to be trusted. As Lord Denning put it, let it be the judges. The interesting thing is then that absolutely pivotal to the Rule of Law is how you control the judges, and they have to be controlled. But they have to be controlled through the most delicate constitutional mechanism.

That is first of all, the appointment of judges has to be a rigorous process untainted by considerations, which I am afraid do creep in because of the extent of the power wielded. You would know that in Germany. There is quite a gentlemanly ritual, that last time it was a Social Democrat candidate, now it is a Conservative candidate. There is a sort of a rotation. In America it seems the Supreme Court is both ghastly and brutal in the sense that in a Bush presidency you will get judges of a certain stripe and the moment Obama comes in there will be judges of another stripe. I think it was memorably said by Franklin Roosevelt of the appointment of Felix Frankfurter that, "He is a son of a bitch, but at least he is my son of a bitch". Which says it all. 

The difficulty is that the control of judges ultimately lies in themselves with certain important things like codes of conduct which never used to exist before. It does not stop certain judges - after the consumption of too much tea on a Friday evening, which is of course always when one drinks tea - driving a judicial Jaguar through a wall of a surprised householder in Hurlingham. There will always be problems. But then you act against those judges. You act swiftly. We do not see that. We see the can kicked down the road until retirement. And that is a very bad thing because everyone must know there is an outer ring to their doughnut. Everyone must know there is a limit to their power.  And although you may have ushers who treat you with medieval deference, and even junior practitioners who do that kind of thing, you must know that the power has its limits not to be abused. 

On a lighter note, the extent to which people can believe in the mystique of judges is wonderfully brought out in Jan. She was James Morris at the time writing the "Pax Britannica, History of the British Empire", who was one of the first people to undergo a successful sex change operation many, many years ago. She wrote of the discovery of a hill tribe in India, sacrificing a goat, to propitiate a distant but omnipotent deity: "We know nothing of him but that he is a good god, and that his name is the Judicial Committee of the Privy Counsel." So obviously he is some district commissioner that sought to bring home to them the prominence of the judiciary in Britain and the Empire, and that was the result. 

On the question, though, of judges and those limits - I will give you another example not too dissimilar to the Clicks one. These are taken, one from Zimbabwe and two recent ones from Namibia. I argued a case on 25 June 2009 in Zimbabwe. An activist called Justina Makoko had been abducted, tortured and beaten by agents of the army. It was admitted in an affidavit quite brazenly.  Mr Johannes Tomana, the attorney general of Zimbabwe admitted it. And we were successful in the Supreme Court in reversing an absurd order of the High Court which had been made dismissing her application. 

But you do appreciate that every judge in the Supreme Court of Zimbabwe, bar one who has just retired - and his name should be mentioned because he is a credit to all judges, Wilson Sandura - each one has accepted at least one confiscated farm. And because of the wear-and-tear on judicial Mercedes Benzes they then had the impertinence to lay a claim, which was immediately given because you must keep your judges happy if they are going to see things with the correct spectacles.  They have been given 4x4 vehicles. They go out to their farms on a Thursday, so you can never get a case on a Friday, and they will return, if you are fortunate, on Monday night.

Now, in this particular case the judges had to actually upturn the order because the one judge - tiny minority - out of four were there and they were going to find a way to bury this. But he put forward three or four very well-posed questions. He put them to the government counsel and when she gave a sort of a cave-in answer, he said a follow-up question, "So that is the end of your case, is it not?"  Which she embraced. The Chief Justice leant forward and said, "When you said it is the end of your case you just meant the end of your case on that point, did you not?"  And she said rather abjectly, no, she meant the end of the whole case. So he was furious because he had thrown her a lifebelt and hit her on the head with is, as it were. And that was the end of the case. 

The point of my story is, the order was made, the judgement which would reveal the operation of these effective death squads has not been handed down. It will not be handed down. And from a meeting I was at this morning of Freedom under Law, I know from our Zimbabwean colleague that the courts have taken to delivering oral judgements, oral orders that brief judgements. The law does not get made - this is the Supreme Court - it just does not get made anymore. That way it is quicker for the judges, you get to the farm faster, and you keep out of trouble with government.  Now, that illustrates the big problem for the fourth tempter, and that is giving in and conceding. 

Another couple of brief examples. In Namibia a judge in the Supreme Court, which is a full-time court, it actually convenes and sits in court 15 days a year. Nice full-time job. Nice work if you can get it. Clearly I can not! But 15 days a year would mean, on average, you write two or three judgements a year. And it is wonderful because for once one would not have brick bag thrown at him to the extent that it matters to those who remorselessly want to identify everybody according either to their dermatology or their genitalia. He is a white, male, Afrikaans judge. 

So, he with a sound professional background, he had to confirm as it happened, the damages award - it was not rocket size - for a young girl who had been raped by a teacher. He took four years and two months to confirm a damages award. How he could have slept, one wonders, because of somebody who needed the damages, actually to get to psychiatrists and physical operations. I think there should be a special international criminal court for some judges, and I do not mean to appoint them. 

Another example is the Chief Justice of Namibia, who as a High Court judge reserved a judgement on 18 March 2003. Now as Chief Justice he descended, as it were, physically and otherwise from the highest court to go to deliver that judgement on 4 October 2012, nine years. He held in his judgement, without any sense of irony, that a 90-day limit imposed on ordinary rural litigants to institute a claim against the government was constitutional because you must move. Do not sit around. You must get yourself a taxi and get yourself to a lawyer in far-off Windhoek and put your claim in. It took him nine years to say that 90 days is reasonable. He did not see what he was doing. 

The good news is that the legal profession, and this is another example of what can be done as regards the fourth tempter, the legal profession in Namibia with some prodding from one or two outsiders, has had enough and it has drawn up a Judicial Oversight Bill. It has got ministerial support for it. It imposes a limit of 60 days on judges in civil cases to give their judgements, or 90 days in civil cases and 60 days in any appeal. In some states in America they are simply more robust and that is, you can not go on leave if you have not delivered your judgement, which concentrates the mind wonderfully, as Dr Johnson might like to say. 

So, ultimately to conclude, for me the critical thing about the Rule of Law is distinguishing in it from those three other states by a simple shifting of words, a state where there is rule but it is rule under law. That you have to bear in mind that the division of powers is a cornerstone of achieving it. But, as has been said in earlier times, actually it is all about eternal vigilance. And the judges too, have to be held to account. They should be criticised, they should be criticised in the right way. They have to walk a line which is to know that there are no no-go areas in the law anymore, whether it is budgeting process. If it is found, for instance, that it is tainted by fraudulent acts, some extreme situation like that, the duty of the court would be be to intervene. The duty of the court would not be to reject the budgets. It is not the duty of the court to decide which kids go to which schools in the Western Cape. It is the duty of the executive to do that, legislature having made a law and the executive then in implanting it. The judges must patrol the boundaries of the power. They must not shrink obviously from blowing a whistle when they see that there is a transgression.

It is a very fine line because some bad judges sometimes, through an excess of well-meaningness, will want to interfere in what is a policy exercise. Yes, they must do so if the policy is one which is susceptible to constitutional challenge. Take the famous case involving anti-retrovirals, the TAC, Treatment Action Campaign litigation. There was a policy in place, reflected also in legislation, which would not discharge the government's constitutional duty. The Constitutional Court said, we know it is a question with budgetary implications but you can not do this. You simply can not do that. So it is that very difficult line, and perhaps in the discussion there will be some interesting illustrations of that. 

May I just then say finally that, really, there are two things which to my mind are the ultimate protectors of the Rule of Law. The one is what Van Wyk Louw wrote in Die Pluimsaad Waai Ver, and that is to a theory of Dr Verwoerd, who was very opposed to van Wyk Louw's migration from the person he was to the person he was starting to become. But he wrote very beautifully that as regards any exercise of power, rather like Milan Kudera, there should not be any generation that goes past without protest.

And Walter Bagehot, the Victorian constitutionalist, taught us the ultimate protection for the Rule of Law, and that highlights the fact that you can have a wonderful Constitution. And Zimbabwe's 1980 Constitution is not bad. It could be shorter. Thomas Wolf said that the American Constitution is one tenth the length of the owner's handbook for a Toyota Camry, and that only seats five. It could be briefer but it is a good Constitution. It is not the Constitution which is the problem. Now, Walter Bagehot said, ultimately, the life of a Constitution is in the minds and spirits of those who work it. Thank you. 

Issued by The FW de Klerk Foundation. To sign up for the Foundation's free online newsletter click here.

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