Share it

Albie Sachs’ trajectory is an extraordinary one.  From advocate at the Cape Bar, to labelled being terrorist and two prolonged periods of detention, to decades in exile in the UK and then Mozambique where he was later seriously injured by a bomb placed in his car by South African security agents, to his return to South Africa in 1990 as a member of the Constitutional Committee and National Executive of the ANC and an integral part of the negotiations which led to South Africa’s emergence as a constitutional democracy, his experience is unique and a full story in itself.  But this return also led to the beginning of a new chapter in his life.  His subsequent path-breaking work from 1994 as a judge on South Africa’s newly established Constitutional Court is viewed from his perspective in a prism which unashamedly fuses the totality of his past personal experience, his relationship with state power, and his very considerable legal expertise.  [read more]

It is this candid narrative of his experience of judging which is wholly exceptional and which provides something of a rebuttal to the ‘critique of adjudication’ school which argues that in many cases the existing state of doctrine allows appellate judges to choose how to decide a case based on their ideologically conditioned attitudes toward the events or transactions before them.   Sachs’ point is that inevitably all judgments are subjective.  What is important is that the approach to constitutional rights is infused with the principle of human dignity.  He goes so far as to state ‘every judgment I write is lie’ (p. 47) and explains this further by reference to the orderly, clear, sequential form of the final judgment which belied the “inchoate – even chaotic – mental infirmament quite different from that suggested by their ultimate assured expression” and mixed in with the formal logic “an enormous amount of random intuitive searching and a surging element of unruly, free-floating sensibility” (pp. 47-48).

Sachs’ approach to his subject is thematic interspersed with extracts from significant judgments from the Constitutional Court.  The themes, which are each individually worthy of a book, are worn lightly despite the underlying gravity of the subject matter and throughout interweave personal experience with received logic and learning.  They span Sachs’ personal experiences in the chapter entitled ‘A Man Called Henri’, involving the meeting of the man who had been involved in the planning of the bomb which left him without an arm and sight in one eye, in the context of the Truth and Reconciliation Commission, to more academic themes such as ‘Reason and Passion’.  The result is a panoply of thoughts on various aspects of the issue of adjudication in the broadest sense which aims to provoke the reader into his or her own critical reasoning.

Some may not find the method of interlinking chapters with selected extracts from judgments entirely satisfactory.  It certainly has the effect of breaking up the seamless and fluent narrative of Sach’s story.  But this presumably is intended as a deliberate stylistic device and designed at the same time to illustrate by concrete example the daily conundrums thrown up by judging, the blank slate on which many of these judgments were written, and to serve as examples of the coherent, articulate product of complex and diffuse strands of thoughts. 

The dilemmas thrown up by balancing constitutional rights is well demonstrated by the discussion of the Grootboom case.  Grootboom concerned the obligation of the state to produce a programme to provide appropriate shelter for desperate people who had no roof over their heads because of eviction, fire or floods.  It concerned not just a few but many thousands, and the controversial area of enforcement of socio-economic rights through the courts.  Sachs traces his careful thinking on this area back to his days as a law professor in exile through to his experience of the reality of welfare provision in South Africa in balancing the arguments against unelected judges deciding social and economic questions and the need to restore dignity to all South Africans.  He provides in his discussion of each theme a bold and bare exposure of his thoughts.

The theme of ubuntu or ubuntu-botho (humaneness), part of the cultural heritage of South Africa, is ever present in this excellent book.  It is evoked by Sachs in his judgment on the Didoko case, which he describes as a judicial plea in a minority judgment for the remedy in defamation cases to move away from focusing on money awards towards encouraging apology (p. 99).  As he states in his judgment: “Historically it was foundational to the spirit of reconciliation and bridge-building that enabled our deeply traumatized society to overcome and transcend the divisions of the past.  In present-day terms it has an enduring and creative character, representing the element of human solidarity that binds together liberty and equality to create an affirmative and mutually supportive triad of central constitutional values.  It feeds pervasively into and enriches the fundamental rights enshrined in the Constitution.” (p. 100).  Thus although the book’s themes are in many respects universal, they are also undoubtedly rooted in a specific culture, time and place.

In summary, Sachs’ book will be of undoubted interest for the legal profession as a whole and anyone who is involved in justice and adjudication.  Its strong narrative style combined with its rare insight into the judicial mind expressed in a wholly accessible language belies the complexity of learning and thinking of its author.  As Lord Woolf states in his preface to this important book, Sachs “has a gift…of expressing complex issues with simplicity and clarity.  This does not mean, as he makes clear, that he does not have to struggle to set out his conclusions” (p. ix).  Go read.