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Justice involves a strange alchemy of life and lawAlbie Sachs, Justice of the Constitutional Court, is not a man to go out with a whimper. On 11 October at midnight his term at the court ended.
That is when he would have hung up his green judicial gown for good. The gown with its short right arm, hacked off to accommodate the amputated limb that a car bomb took from him along with the sight of an eye on 7 April 1988, in Maputo, Mozambique.
This would make a fitting footnote to his latest book, The Strange Alchemy of Life and Law (Oxford University Press), which describes the machinations of the judicial mind and the impact of real life on judicial decisions.
Sachs is no sober judge. Among the many identities he claims as activist, humanist, rationalist, law professor and writer, his artistic temperament has in the past revealed a flamboyant side of a passionate personality.
In solitary confinement under apartheid, he worried about why it was so difficult to be brave, and as a judge, why it was so difficult to write a logical judgment.
He is a strong person but apparently fragile, yet he says he sees no distinction between strength and fragility; he lives well within his contradictions. “I am very sensitive, yet Buddhist-like at times.”
I ask how tough he is, can he handle being called a drama queen?
His deep commitment to the values enshrined in our Constitution is indeed dramatic – he cries, in this book, at the sheer depth of democracy; in action he sweats before attending his first Gay Pride march.
He is an exuberant man, but his enthusiasm is not without substance.
He also appears able to imagine himself into the mind of the other: of women who sell their bodies for money and bear the stigma of prostitution, of which their male clients bear no burden.
Pierre de Vos, the Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town, says Sachs is unusual in his honesty, in his admission that while judges have some agency – and while they are constrained in many ways – they are, in fact, responsible for the outcome of a case.
Sachs explains that he wrote Alchemy with his judicial colleagues and students in mind, as well as a public fascinated with the workings of the law. For Sachs, the judge is in possession of a certain “mystique”, and this is one of the reasons he says his leave-taking is so difficult.
His own process seems mysterious to him and he says that it was not until he began to write about the creative process of judging that he understood the complexity of the battle between the logic of law and the passion in life. For him, judges – like the workers of the world – should unite; he presents the judge as “the storyteller of our time”.
The man in the green gown as modern-day griot is a sweet, romantic notion. I think of some of the stories that take us beyond the fight for “bread rights” alongside “freedom rights” –the rights of people living with HIV, same-sex marriage – that De Vos says take a less traditional view on how people should look at relationships and which make him an important progressive voice on the court.
I am thinking of the cutting-edge judgment about Mrs Irene Grootboom’s right to shelter. It compelled the Oostenberg Municipality to provide shelter once she had been evicted.
She died before she could move from shack to brick house.
Could the gap between the respect and the responsibility proposed suggest that we live in fairyland, rather than South Africa in some instances? Sachs says: “The law works at a practical level, but also on the level of the imagination of what is possible and what is right.
“The importance of the case of Mrs Grootboom was to place her at the centre of public preoccupation. And then it is up to the public authorities and the citizenry to take over. The irony is that she died before her house was allocated to her.
“The court is about promoting the deep values of the society,” he adds. The court promotes empathy, compassion and a deep respect for the law.
So, regardless of the intentions of the 60 mercenaries who went to Equatorial Guinea – nothing less than executing a military coup – that their rights not to be ill treated must
be respected.
Sachs wrote in his judgment that the government has an unambiguous duty to prevent South Africans abroad, however grave their offences, from being subject to torture, unfair trials and, if possible, capital punishment.
Similarly, in the case of “Mr Mohamed”, for whose arrest an international warrant had been issued for the bombing of the United States embassy in Tanzania: “We did not want him to be sent from South Africa to be exterminated,” says Sachs.
Mohamed entered South Africa on a false passport, and was apprehended by the South African immigration authorities in a joint operation with the Federal Bureau of Investigation (FBI).
He was to be taken to the US to be put on trial.
Sachs said it was evident that the death sentence would have been imposed on him if he had been convicted. Sachs says the law has to be compassionate, principled and disciplined, and it is more important that the deep virtues of the law be maintained than that a particular scoundrel goes to jail.
An intense man, who possibly sought to subvert the white supremacist regime from the cradle, it seemed inevitable that Sachs would engage with torture and terrorism, two themes on which he expands in the book.
With parents such as Solly Sachs, the secretary of the garment workers’ trade union; and Ray Sachs, the typist for Moses Kotane, the general-secretary of the South African Communist Party, his star was set. “I did not stand a chance.”
He was encouraged at the age of six to become a soldier in the liberation struggle. Sachs, who was tortured by means of sleep deprivation, writes for the first time about torture in the ANC’s camps.
Oliver Tambo’s repudiation of terrorism surely contained an inherent moral insurance: “How do you claim to be a freedom fighter when you kill indiscriminately?”
This morality was only sometimes explicit, writes Sachs, who was apparently shocked to learn from Tambo that: “We don’t have regulations governing how captives should be
dealt with.”
Reported direct speech makes the fact starker. “We use torture,” said Tambo bleakly.
At Tambo’s request, Sachs drafted a code of conduct, which he ranks among his best work.
It included three categories of misbehaviour, including a consideration of whether allowance should be made for “intensive methods of interrogation” called for in extremely grave circumstances.
This was debated and rejected by the ANC in exile and in the underground in South Africa.
“Looking at international law today, I do not see anything about a ticking bomb justifying evasion of the Torture Convention.”
For a between-the-lines reader, there is much unsaid, and he will be drawn no further in this interview on ANC history, but the essential conversation has been opened.
Terrorism was always a vital issue, and no less so in the 1980s. Sachs, who had been branded a terrorist, had come to it on the other side. This brings us back to the explosion of 1988 that ripped apart his life.
As a freedom fighter, he “saw through the moment”, he found laughter, humour, thought: “spectacles, testicles, wallet and watch”, according to an old Jewish joke. He checked whether his “good old cock” was still intact.
At 74, he is the father of two-and a-half-year-old Oliver, his third son, with his wife, Vanessa September. Oliver, named after Oliver Tambo, is one of his important projects. This will undoubtedly help bridge the gap that leads to the future outside the hallowed walls of the court.
This interview is part of his wrenching farewell process. Sachs needs to tell the world, repeatedly, about the non-political, deeply committed court in whose foundation he had a hand.
He understands that “a collegial court is more than the sum of its parts”. He describes the strong opinions, enthusiasm, the stubbornness, the positive value of dialogue and critique in such a court that is absolutely democratic.
In Alchemy, he writes: “We do not seek to escape from the precedential narcissism that lies at the self-referential heart of the judicial function. We glory in it… and in a self-conscious manner seek to expose ourselves to the world as people who live by provisioning reasons.”
Such reasons, as we have learned, are hard to come by and the point of the book has been to reveal the ways in which his life has bled into the law he practises.
The Constitution seeks to make amends for the ravages of apartheid, and the journey back to human dignity via the law is unpredictable, just as life is unpredictable. “I had not expected that I would end up as a judge, and that my life would take such a turn,” he says.
Twenty years ago, Sachs shocked the ANC’s artistic community with a paper, “Preparing Ourselves for Freedom; ANC Constitutional Guidelines”, urging South Africans to liberate themselves from apartheid-imposed mental ghettos and to summon “the cultural imagination to grasp freedom”. To this end, stodgy political loyalty would have to go.
He suggested a moratorium on the use of the phrase “culture as weapon” and called for “a revival of inspiration”.
Its impact was felt.
Later, when tasked with “decorating” the court, he approached artists for contributions, saying he was looking for art with high aesthetic value, not art that was triumphalist but art with dignity. Colour came flooding onto the dull site of the Old Fort Prison.
Sachs’ tie is decorated with Vermeer’s lady with a pearl earring; his language is dramatic. It is the language of emotion and gratitude.
He speaks of constitutionality with the expression of the freedom fighter’s “soft vengeance”, the term he coined when he assumed the right to heal: “I did it joyously, I received so much love and support. People thought I was dead, and they cried.”
Sachs tells the story in Alchemy of Henri, a man who had been a member of the security forces, who turned up at his office to tell him that he had helped to prepare for his death.
“I did not want to shake his hand, it would be too cheap. I wanted him to go to the Truth [and Reconciliation] Commission and be part of the new nation.”
It is obvious that Sachs must experience some pain, at least every day. He looks surprised by this observation. “My arm throbs sometimes.”
Does Sachs believe that fate has a hand in such matters? “I believe in luck in as much as it affected me. If you look at this shrapnel mark on my eye here, had it been a couple of millimetres to the left, I would have been dead. I would not be talking to you now.”
But he is doing that, determined to illustrate that judges are not old farts, not vehicles for the formal legalistic claptrap he says once created a schism between the world he inhabited as a lawyer with three degrees, including a doctorate, and the real world whose liberation he sought.
I suggest that Sachs become an elder. “And replace one mystique with another?”
It must have exploded with a mighty bang, the bomb that maimed Sachs, taking body parts, but the soul – evidence of its continued will – is everywhere in this court.
He says issues such as the growing drama of Cape Judge President John Hlophe, about which he cannot comment, are ephemeral. “We have laid a solid foundation.”
The bomb somehow liberated him, he says, to begin again, to become whole again, to learn to walk again, and later, to be one of the first 11 judges appointed to the Constitutional Court by Nelson Mandela in 1994. ?
Maureen Isaacson
