Symposium: Chief Justice Arthur Chaskalson as a Towering Judge: Shaping the law in democratic South Africa

Dennis Davis

Competition Appeal Court of South Africa,

University of the Western Cape, South Africa, and

University of the Witwatersrand, South Africa

“If a life could be mapped, that of the Honourable Arthur Chaskalson would surely appear as a straight line starting from a commitment to human rights, and leading, without deviation, to the bench of the Constitutional Court of South Africa and the position of chief justice. It is a long line, but an unwavering one.”

– Justification for the Grubwer Prize for Justice 2004

An appointment as the first head of a newly established Constitutional Court for a democratic South Africa may constitute a necessary but certainly is not a sufficient condition for classification as a towering judicial figure. By towering judicial figure, I mean a judge who dominates the legal field, who carves out a body of jurisprudence that shapes the law in the country for decades after his or her retirement while ensuring the institutional independence and integrity of the judiciary.

Following this definition, I argue that Arthur Chaskalson fulfills all the requirements for classification as a towering judicial figure. His role as the key judicial figure after democracy dawned in South Africa was the culmination of a life-long commitment to the values of equality, dignity and freedom which are the cornerstone of the democratic South Africa. His place in South Africa as a towering judicial figure was attributable to far more than being the first leader of a new apex court. In summary, his appointment as President of the new Constitutional Court by then President Nelson Mandela and later as Chief Justice of South Africa were a culmination of a long journey which started long before 1994. The choices he made in his practise of law were reflected in his later work as the new head of the Constitutional Court and showed his commitment to fighting for justice and democracy in South Africa. He directed his energies and talents to this cause with an extraordinary level of skill and determination.

He was a graduate of the University of the Witwatersrand where he obtained a BCom degree, in 1954, he was admitted to the Johannesburg Bar in 1956 and took silk in 1971. He appeared as counsel on behalf of members of the liberation movements in a number of major political trials, the best known of which is perhaps the Rivonia Trial in 1963/1964, at which eight leaders of the African National Congress, including Nelson Mandela, were convicted and sentenced to life imprisonment.

In 1978, at the height of his powers as a leading senior counsel, he became the first director of the Legal Resources Centre, a non-profit organisation dedicated to pursuing justice and human rights in South Africa using law. Under his leadership, the Centre launched a number of challenges against apartheid laws, such as the notorious pass and influx control laws, on behalf of the poor, the marginalised, the homeless and the disempowered. Under his consummate leadership, the Centre became a formidable instrument in the use of law to constrain the obscene racist system of governance which dominated the country for eons, thereby preserving a belief that law could play a significant role in the promotion of human rights and the promotion of democracy.

However, his greatest achievement came with his appointment to the Constitutional Court. This court was created at the birth of democracy because the legitimacy of the existing judicial system had been seriously eroded as a result of the judicial record under Apartheid. Eleven justices were appointed to be the compliment of the first Constitutional Court. Drawn from very different backgrounds, life and professional experience, the immediate need was to weld these appointees into a coherent institution which would fulfil its fundamental obligation of the transformation of the South African legal system into one which was fit for a non-racial and non-sexist democratic purpose.

The dominant role of Chaskalson was shown in the first case which was heard by the Constitutional Court in 1995, S v Makwanyane which dealt with the constitutionality of the death penalty which had been employed regularly by the Apartheid government until a moratorium was declared in 1990. Although all eleven justices penned judgments, it was Chaskalson who wrote the main judgment on behalf of a unanimous court. He noted that during the constitutional negotiations, a Solomonic’ solution had been adopted, by the negotiators, namely that, as the two main parties, the ANC and the National Party could not agree as to whether the death penalty should be expressly dealt with in the Constitution, it had been left to the Constitutional Court to make the decision. Chaskalson was clearly aware, as a preeminent human rights lawyer, that his own views about this topic would have been well known. For this reason, he penned a most unusual judicial passage dealing with whether the death penalty breached the constitutional prohibition against cruel inhuman and degrading punishment:

‘The question is not, however, whether the death sentence is a cruel, inhuman or degrading punishment in the ordinary meaning of these words but whether it is a cruel, inhuman or degrading punishment within the meaning of s 11(2) of our Constitution.’

It is clear from this passage that Chaskalson’s argument was that from a moral position the death penalty is inhumane and cruel. It is morally repugnant to any reasonable person. But that is not the question which the court is required to answer. The judges of the Court must eschew its own personal feelings about this matter and decide whether in terms of the law which it is enjoined to apply it can come to a similar or different conclusion. 

In his judgment he also noted:

‘…public opinion may have relevance to the enquiry, but, in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour.  If public opinion were to be decisive, there would be no need for constitutional adjudication.’

With this magisterial judgment, Chaskalson began the process of educating the legal and broader community about the meaning and implications of constitutionalism. However, in his judgments and extra curial speeches Chaskalson sought to balance the scope of constitutional review with the role of politics consistently reinforcing the point that constitutionalism alone, without politics, could not propel the change to substantive democracy. In one of his last speeches before his death he said:

‘We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.’ 

That this remains the prevailing approach of the Constitutional Court is testimony to Arthur Chaskalson’s enduring legacy.

Dennis Davis is Judge President of the Competition Appeal Court of South Africa and Honorary Professor of Law at the University of the Western Cape and the University of the Witwatersrand.

Suggested citation: Dennis Davis, ‘Chief Justice Arthur Chaskalson as a Towering Judge: Shaping the law in democratic South Africa’ IACL-AIDC Blog (29 March 2019) https://blog-iacl-aidc.org/towering-judges/2019/3/29/chief-justice-arthur-chaskalson-as-a-towering-judge-shaping-the-law-in-democratic-south-africa