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Introduction

To know the taste of an avocado pear you have to cut it in half. I’m reminded of this statement of Samora Machel’s as I turn these pages. Decades ago, when I arrived in newly independent Mozambique, Samora would say that only when you let all the contradictions come out will you resolve problems in an open and principled way. Three contradictions in this book stand out for me.

Contradiction number one is personal and amusing in an ‘Only in South Africa’ kind of a way. My relationship with former apartheid president FW de Klerk had always been distant. When I was told that, in the Government of National Unity, he had bitterly opposed Mandela selecting me as one of the justices on the Constitutional Court, I was not surprised. Yet, early this year when I was asked to speak at a conference on multi-culturalism in South Africa organised by the FW de Klerk Foundation, I accepted. Our Constitution belongs to everyone. And if I speak about it to trade unionists, community organisations, faith groups, schoolchildren, student activists and NGOs, so should I engage with the multiple foundations that South Africa has produced.

When I arrived at the venue I was greeted warmly and spontaneously by Elita de Klerk, but more restrainedly with a stiff handshake and correct smile by the former president. Maybe it was the challenge of addressing an audience invited by his foundation that caused me to speak with special emotion about the crucial but virtually unknown role played by Oliver Tambo in establishing the foundations of our Constitution. I went on to pay particular attention to how, in the ANC, we had dealt with the manner in which the Constitution should protect Afrikaans as one of eleven official languages, an issue of some controversy in schools and universities today. I mentioned that my contact as a child with Afrikaans speakers had been most positive. In Cape Town it had been with the poet Uys Krige and the artist Gregoire Boonzaier, both lively, progressive and full of fun. In Johannesburg it had been with people like Johanna and Hester Cornelius, both members of the Garment Workers Union of which my father, Solly Sachs, had been the general secretary, and both lively, progressive and full of fun.

After making my presentation [see Section 10, United in Diversity], I thought I would slip out quietly. But De Klerk suddenly placed himself in front of me, blocking my way, and began to speak to me in Afrikaans. In a serious voice he told me that his father, Jan de Klerk, had been a school principal in the Transvaal, and a successful one. But then he had been asked by the National Party to leave his job and work full time on something quite different. It was to destroy the leadership my father, Solly Sachs, was providing to the Garment Workers Union. Afterwards, De Klerk Snr had been made minister of labour, and was responsible for a number of the labour laws of the time, laws which, FW added, he had gone on to repeal. He smiled warmly for the first time, shook my hand and walked away. Only in South Africa, I thought, only in South Africa …

A second contradictory moment occurred after a far more poignant and astringent emotion flowed from re-reading the chapter on the contradictions between Free Spirits and Ravaged Souls, adapted from a keynote address I gave at the Time of the Writer festival in Durban in 2011 [see Section 6, Free Spirits and Ravaged Souls]. I think about how bitterly the tensions that lay at the core of this talk later manifested themselves in the terrible Charlie Hebdo episode in Paris. And also about what has happened in the intervening years to the two main protagonists of my presentation, the cartoonist Zapiro and the president, Jacob Zuma.

Zapiro, the brave, progressive and much-loved political cartoonist, had at the time insisted vociferously on his right to untrammelled free speech when depicting Zuma being urged by his political colleagues to open his fly and rape a prostrate Lady Justice. Yet, interestingly, since then Zapiro has modified his position. He has accepted, after a great deal of serious introspection, that he erred in not taking into account the injury his cartoons might cause [if quite unintentionally] through triggering painfully racialised stereotypes.

Meanwhile, for his part, President Jacob Zuma has since withdrawn his claim for huge amounts in damages from Zapiro. His popularity ratings have plunged dramatically in recent times. People I was close to during the struggle have expressed anguish at the thought that Zuma might succeed in doing something that Verwoerd, Vorster and Botha failed to do, and that is destroy the ANC. They are deeply concerned that he is providing a kind of leadership that could not only undermine the South African constitutional order through state capture, but could also rip out the heart of the ANC’s constitutional ethos by means of branch capture.

As a former judge I feel it would not be appropriate for me to take any public stand on these issues. What I can ask myself is, if I make the assumption that these fears are justified, does it change my concerns about the appropriateness of the original cartoon? And my answer continues to be ‘No’. The issue is not a purely legal one. Nor is it simply about the need to maintain civility and good political manners. Our Constitution might indeed permit the publishing of cartoons and artworks that are deeply offensive to large sections of the population. And there might be moments when controlled, focused and meaningful disruption of discourse can be justified. But here the basic question relates to the degree of cultural sensitivity required of artists in a country where many, many of its citizens have known (and still know) great pain simply because of who they were and who they are. Protection of human dignity lies at the heart of our Constitution. Artists should feel concern in their own souls if they become aware that their work is further ravaging the already ravaged souls of others.

This brings me to my third and final reflection, which relates to the central contradiction animating this book. It is the tension in any constitutional order between perfectibility and corruptibility, a tension that has been particularly pronounced in South Africa. My inaugural lecture at the University of Cape Town in 1991 was entitled ‘Perfectibility and Corruptibility’. We had seen this tension in many countries where we had lived in exile, where brave freedom fighters had ended up as authoritarian and self-serving heads of state. We had seen the tension inside our own organisation, where not all members lived up to the values of people like Oliver Tambo and Chris Hani and Joe Slovo and Ruth Mompati. I had recently returned from exile and was heavily engaged in the preparations for burying apartheid and achieving a new democratic and non-racial constitution. Now, a quarter of a century later, people of all ages from all parts of the country are asking me the question: ‘Is this the country you were fighting for?’ They point to the continuing racism, the massive inequalities still associated with race. They refer to the vast unemployment and the unacceptable level of crime. Above all, they express shock at failures of leadership and the degrees of corruption in which a number of political leaders at all levels of government are involved. Has corruptibility triumphed over perfectibility? Is this, they repeat, the country I was fighting for?

And my answer is ‘Yes, this is the country I was fighting for’. But ‘No, it is not the society I was fighting for’. So the answer to the question is not to allow the deficiencies of our society to destroy the country, but to use the country to deal with the fault lines and failures in our society. This is not just a lawyer’s play with words. When, in the days of oppression, we called for freedom in our lifetime and demanded universal franchise, we were told sneeringly to look at Africa; there would only be ‘one man, one vote’ once. We have in fact had four general elections. Our presidents step down after two terms, maximum. President Mandela voluntarily left office after one term and President Mbeki resigned before his second term had ended, not because of an army coup or huge demonstrations in the streets, but because a majority in his party had shown preference for another leader.

The institutions founded on the principles of mistrust and vigilance that we placed in our Constitution to protect ourselves from ourselves, have been working. The reports of the public protector in fulfilling her constitutional mandate have not only helped clarify issues of great public controversy, they have also given legitimacy to the whole constitutional project. Even more so, the creation of an independent, constitutionally minded judiciary has given the people clear points of reference in understanding how power should be exercised in our country. Protected by the Constitution she protects, and enjoying increasing public esteem, Lady Justice is far from cowed. And just as we have a new generation of judges upholding the central tenets of our country’s existence, so we have a lively new crop of journalists using their constitutionally guaranteed freedom to investigate the doings of the mightiest and the meanest in our nation.

Black majority rule has not failed in our land, even if our society continues to fail in many serious respects. Black leaders achieved something that generations of white rulers never succeeded in doing. They integrated the Bantustans into one united country. They amalgamated armed forces that for decades had been bitterly fighting each other. They unified systems of health and education that had been segregated for centuries. We can all move freely and speak our minds. There are no holy cows in South Africa. We all have the vote and our elections are taken very seriously. We can take our disputes to court, challenge the highest and defend the humblest. Our books are not banned, there is no detention without trial. This is our country, South Africa. We have won our freedom and we are not going to let it go. We have mechanisms to hold our leaders accountable, and the opportunities to make use of the rights we have won.

Our problems are huge. It is true that nearly a quarter of our population has moved from shelters to brick or cement homes with water, electricity and sewage; that ninety per cent of our people have gained access to water and electricity; that almost a third of the nation receives social grants; that we have a large and growing black middle class that is both driving the economy and changing the nature of political discourse. We can and should take considerable pride in these accomplishments. But none of them justifies Marikana; the inordinate expansion of wealth for those already extremely rich while the majority remain poor; the failures to accomplish meaningful land reform; the racism still rampant in our society; or the corrupt dealings in the state and inside political parties.

We need to engage seriously with issues placed on the agenda by a new generation of students who are calling bravely and boldly for decolonisation of hallowed institutions like our universities, and not simply their deracialisation. The burning of buildings and paintings by some in their ranks should not stop us from opening our minds to what they are saying and responding to their idealism and passion. When I spoke to two hundred fervent law students at the University of Cape Town recently I couldn’t help seeing myself as a young law student on that very campus sitting in their ranks. Our institutions are strong enough to contain and be strengthened by the turbulence that besets them. They are more likely to collapse from routinism, corporatisation and, in some cases, cronyism and corruption, than from having to find sustainable and meaningful responses to the tumult on their precincts.

And we have to listen to what the workers are saying. I was reminded of this when attending a conference recently to discuss twenty years of our Constitution. The hotel in which I was staying was filled with workers attending another conference. Speaking to one of their leaders at a lunch where we chatted more than we ate, I recalled the role that the unions had played in establishing democracy and non-racialism in our country. Long before trade union members had the vote they were electing their own leaders. Long before non-racialism and non-sexism were made foundational values of our Constitution they were breaking barriers of race, tribe, language and patriarchy in struggles on the shop floor.

I will end with another statement by Samora Machel: ‘Leaders may come and leaders may go but the people never die’. Samora Machel was killed when his plane was lured to a hillside by a false beacon. His people and his country were severely wounded but they never died. In South Africa we have a people who are as determined as they are diverse. We, the People, made our Constitution. There is nothing in it that prevents a second major transformation of our society. Unlike transition, transformation never ends; our society needs constant renewal. It is We, the People, who produced our Constitution, and it is We, the People, who must ensure that its full vision is achieved. In our lifetime.