His Excellency President of the Republic, Mr Jacob Zuma,
Dr Lorraine Chaskalson, Matthew, Jerome and other family members,
Deputy Chief Justice of the Constitutional Court, Dikgang Moseneke,
Former Chief Justice Pius Langa,
Members of the Cabinet,
Honourable Members of Parliament and Provincial Legislatures,
Members of the Diplomatic Corps,
Ladies and gentlemen.
On behalf of the Parliament of the Republic of South Africa, I extend our sincere and deepest condolences to you Lorraine, Matthew, Jerome and your entire family.
The loss of a family member is always heart-breaking and painful, more so one who was as warm, caring and compassionate as Arthur. If we feel so bereft in the wake of this loss, we can imagine what it signifies for you and your family. We hold him dear in our hearts and remember him with immense pride and deep affection.
“What a voice his has been! Precise, learned, thoughtful, compassionate and highly persuasive.” This accolade by Margaret Marshall, Chief Justice of Massachusetts, on the occasion of Arthur’s retirement, signified how highly he was regarded by his peers in the legal fraternity the world over.
In a speech to the General Council of the Bar Arthur mentioned that he was fortunate to have had three careers in law – as an advocate at the Johannesburg Bar, as Director of the Legal Resource Centre and thirdly as a judge. True to his humble nature he did not dwell on the fact that he had reached the pinnacle in each of these domains, leaving an enduring legacy of immense value to South Africans of present and future generations.
Since the beginning of his career he represented members of the liberation movement, including at the historic Rivonia Trial, where Nelson Mandela and other leaders were sentenced to life imprisonment. My father, Walter Sisulu, had the highest regard for Arthur and the Sisulu family remembers him with the greatest respect and affection.
While every opportunity existed for Arthur to live a life of affluence, this cum laude graduate who was also gifted in commercial law, chose to serve and uplift the oppressed and marginalised in our society. In 1978 he left what is described as a flourishing private practice to establish the Legal Resources Centre. Arthur and his colleagues built the LRC on such a solid foundation that it survived the onslaught of the apartheid regime. Today, 34 years later, it continues to use the law to promote a human rights and developmental agenda.
As a leading member of the African National Congress’s (ANC) legal team, he played a major role in the drafting of our Constitution. Equally significant, as the first President of the Constitutional Court, Arthur played a fundamental role in establishing our constitutional jurisprudence and legitimising the role of the judiciary in post-apartheid South Africa. This was no small task, as during the apartheid era, under the doctrine of parliamentary sovereignty, aided by a complicit judiciary, the law was used as a sword to cut down the rights of our people.
At the time many people, myself included, lacked faith in the legal system and expressed serious reservations when, during the Constitution-making process, we debated empowering old order judges to invalidate laws enacted by a democratic Parliament.
However under the adept leadership of Arthur Chaskalson, the Constitutional Court developed a jurisprudence that emphasised that rights contained in the Bill of Rights must be understood both ‘generously’ as well as ‘purposively’ to give expression to the underlying values of the Constitution.
This was based on an understanding that the Constitution signalled a break from our oppressive and exploitative past and was predicated on achieving substantive, and not mere formal equality. Importantly, it was the jurisprudence of the Chaskalson Court that allayed our fears that an unelected judiciary would be used to thwart the goals of our hard fought struggle, for not only democracy, but also social justice.
As the leader of our judiciary a formidable task was placed upon Arthur’s shoulders to start transforming the judiciary. Given his history of being a ‘struggle lawyer’ concerns were raised that the Constitutional Court was biased. This was of course unfounded, as the Court clearly made its mark and asserted the independence of the judiciary and the supremacy of the Constitution. Former President Mandela said and I quote:
“I always recall how one of the first judgements in the Constitutional Court was around a matter in which I was involved as the President of the country, and the President of the Constitutional Court, regardless of the fact that he was once my lawyer, ruled against me. It was then clear to me that South Africa was in safe hands with that Court standing and operating at the apex of our democracy.”
Ladies and gentlemen,
A key principle of our Constitution is the separation of powers. Naturally there have been many times since 1994 when the Constitutional Court had to keep the Executive and indeed Parliament in check! This is proof that the seeds of independence were cemented by Arthur’s Court and this continues to be the case.
In my 2012 Budget Speech I stressed to members of Parliament that the laws we pass must be in keeping with both the letter and spirit of the Constitution. In so doing, we preserve not only the separation of powers but also the independence of the judiciary, as we do not force courts to intervene in our internal arrangements or because our conduct is lacking.
The Cape High Court recently emphasised that “Courts do not run the country, nor were they intended to govern the country”. Justice Davis warned members of Parliament against creating what he called a “juristocracy” and said that this risked the politicisation of the judiciary. He went on to say that such actions “can only result in jeopardy for our constitutional democracy”. This is something that the Constitutional Court under the leadership of Arthur Chaskalson worked hard to avoid and we must preserve this careful balance.
Ladies and gentlemen,
Arthur was also deservedly the recipient of a string of national and international awards, including the Order of the Boabab in Gold. He represented his country with distinction and he lived a life of service to the people, especially the most marginalised and downtrodden.
Speaking of the Constitution after 18 years of democracy in July 2012 he said:
“Much has changed since the new constitutional order came into force, and the country is now a far better place than it was under apartheid… One of the lessons of the South African experience is that whilst democracy and the rule of law may be preconditions for a more equitable society, they are not in themselves sufficient to achieve the goal of a peaceful and thriving community. Equally important is the need for development and an economy that provides work and hope for all who need it… Our Constitution provides a framework for us to do so. Although we have a long way to go to realise the aspirations we set for ourselves when we adopted our Constitution, I remain an optimist and believe in our country and its future.”
Yes, indeed, what a voice his has been. Precise, learned, thoughtful, compassionate, highly persuasive and always courteous and humble.
On behalf of Parliament, I once more express our condolences to you Lorraine and your family. Take solace in the knowledge that Arthur’s sterling contribution will remain a guiding light for our democracy. He occupies a cherished place in the annals of our history.
I thank you!
