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Address by the Deputy Minister of Justice and Constitutional Development,
the Hon JH Jeffery, MP, at the ceremonial session of the Constitutional Court to
mark the retirement of Justice Johann van der Westhuizen, Constitutional Court, 29 January 2016

Justice Van der Westhuizen
Chief Justice Mogoeng
The Speaker of the National Assembly
Deputy Chief Justice Moseneke
Justices of the Constitutional Court
Representatives from Advocates for Transformation, BLA and Nadel, the Law Society of South Africa and the General Council of the Bar
The Van der Westhuizen family
Ladies and gentlemen, friends
It gives me great pleasure to, on behalf of the executive, pay tribute to one of our country’s most astute legal minds and one of the architects of our Constitution, Justice Johann Van der Westhuizen.

We’ve heard this morning of the important role Justice Van der Westhuizen played in the drafting of our Constitution and his distinguished career in academia and on the bench.  

I was particularly struck by an article I read, called “Lawyers in an Unjust Society”, which documents a conference of the Legal Resources Centre, held at Wits in April 1989.

At the conference, Professor Van der Westhuizen – as he then was – asserted that “the ideology of racism still poisons everything in South Africa.” He argued that “the whole nature of the political system had to change.”

We must remember that this was the late 80s – a time of various states of emergency, banned organisations and massive repression by the state.
It was 1989 – the year that marked the end of the Cold War and fall of the Berlin Wall, and a year before FW de Klerk would announce the release of Nelson Mandela.

In short, here was a white academic, of an Afrikaans background, advocating for human rights – long before it became fashionable to do so.

This unwavering commitment to human rights is something that would characterize his entire career.

In his address, on the occasion of the acceptance of his LLD degree honoris causa from the University of Pretoria in December 2013, Justice Van der Westhuizen quoted a song, released in 1970 by Kris Kristofferson, called “The Law is for Protection of the People.”

The singer uses the song and its lyrics in an ironical or satirical way to highlight the fact that the law, sadly, often does not protect people.  As Justice Van der Westhuizen said in his address –

Whereas the law is supposed to protect all the people, it is often used as a tool to protect the privileged class (who label themselves as “decent”), to bully the weak and marginalised, to suppress free expression and criticism and to lull us into comfortably ignoring the plight of the majority of human kind and the ideal of justice for all.”

These are very pertinent questions that we must ask ourselves. Particularly, as we are celebrating the 20th anniversary of our 1996 Constitution this year - A Constitution which was adopted for the protection of the rights of all our people.

The questions we must ask ourselves are, to what degree have our courts succeeded in addressing the plight of the majority of human kind? Have our courts contributed to the ideal of justice for all?

Or is the law, more than two decades after democracy, still a tool which has the potential to bully the weak and marginalised?

In this regard, we must acknowledge the role of the Constitutional Court and its judgments in protecting the people – often the most vulnerable and marginalised in our society.

If one considers many of the Court’s judgments, and in particular, some of those written by Justice Van der Westhuizen, it is evident how the court has gone about formulating and protecting the rights of the poor and the marginalised, guaranteeing their constitutional rights.  

For example, the case of Shilubana v Nwamitwa dealt with a traditional community’s authority to develop their customs and traditions so as to promote gender equality in the succession of traditional leadership in accordance with the Constitution.  A woman was appointed to a chieftainship position for which she was previously disqualified by virtue of her gender.

In the judgment, Justice Van Der Westhuizen says – 

courts must be cognisant of the fact that customary law, like any other law, regulates the lives of people.  The need for flexibility and the imperative to facilitate development must be balanced against the value of legal certainty, respect for vested rights, and the protection of constitutional rights.”

In a unanimous judgment written by Justice Van der Westhuizen in the Blue Moonlight case the Court held that Blue Moonlight could evict unlawful occupiers from its property if this was just and equitable, but that the City of Johannesburg was obliged to provide temporary emergency accommodation to the occupiers.

The case of Jaipal v The State dealt with the constitutional right of an accused person to a fair trial.  Says Justice Van der Westhuizen –

Few countries in the world have unlimited or even sufficient resources to meet all their socio-political and economic needs. In view of South Africa’s history and present attempts at transformation and the eradication of poverty, inequality and other social evils, resources would obviously not always be adequate. However, as far as upholding fundamental rights and the other imperatives of the Constitution is concerned, we must guard against popularizing a lame acceptance that things do not work as they ought to, and that one should simply get used to it. …

To compromise the right to a fair trial may in principle be as dangerous as to cancel or postpone democratic elections because of a lack of facilities or resources.”

The case of Magajane v Chairperson, North West Gambling Board dealt with the constitutional right to privacy and whether legislation may authorise the warrantless inspections of unlicensed premises for the purpose of obtaining evidence for criminal prosecution.The court held that –

“Taking into account all relevant factors, the provisions in section 65 governing searches of unlicensed premises cannot be deemed reasonable and justifiable… The breadth of the provisions extends the scope of permissible searches beyond situations in which the expectation of privacy is low, potentially reaching to innocent activity in private homes.

Our courts have indeed built up an impressive body of constitutional jurisprudence, undertaking the always-delicate balancing exercise that constitutional adjudication requires.  

Our courts are the upper-most guardians of the Constitution. As organs of state, we – the executive, the legislature and the judiciary - have to ensure that the law is there for the protection of all our people.
You may have read about Advocate Nico du Plessis who was assaulted and beaten outside the Tonga Magistrate’s Court in Mpumalanga last week, because the crowd was angry with him for representing two men charged with the murder of a three-year-old girl. 
In a similar vein, Adv Dali Mpofu has been severely criticised for representing Gareth Cliff.
But one cannot attack the lawyer because one dislikes the client.
It doesn’t matter whether we like or dislike the people that the law must protect. It doesn’t matter whether it’s someone with whom we sympathise or someone we detest. The law is there for the protection of all people.

Ladies and gentlemen,

As we pay a fitting tribute to Justice Van der Westhuizen we know that whoever has to fill his position will have big shoes to fill.  The challenge for the Judicial Services Commission will be in finding candidates who can fill these big shoes and follow in his footsteps - incumbents who further contribute to the collective wisdom of this Court.

As Sir Isaac Newton once said “If I have seen further, it is because I have stood on the shoulders of giants.”  The new incumbent will stand on the shoulders of giants. Giants such as Justices Chaskalson, Ngcobo, Langa, Mahomed, Madala, O’Regan, Sachs, Mokgoro, Skweyiya, Didcott,  Goldstone, Yacoob, Kriegler, Ackermann and Van der Westhuizen.

To the family of Justice Van der Westhuizen, his wife Sarojini and their three children, thank you for letting your spouse and father be “public property”, as it were, and for supporting him in his endeavours. We hope that now, in his retirement, there will be more time for mountain biking together.

Justice Van der Westhuizen referred to the song by Kris Kristofferson, but in his address he also mentioned Bob Dylan.  So it would only be fitting to wish him all the very best for his retirement and to leave him with the words of Bob Dylan:

“May your hands always be busy
May your feet always be swift
May you have a strong foundation
When the winds of changes shift.
May your heart always be joyful
May your song always be sung
And may you stay, forever young.”

Thank you for your dedication and your unwavering commitment to our constitutional democracy. Our country is all the richer for it.  

I thank you.