Speech by Minister Jeff Radebe on the occasion of the memorial service of the late Chief Justice Langa, Durban City Hall, 1 August 2013
The Langa Family and Friends;
Our Host Mayor Mr James Nxumalo;
Honourable Chief Justice Mogoeng Mogoeng;
Honourable Deputy Justice Dikgang Moseneke;
Honourable Deputy Ministers;
Members of the Judiciary and magistracy;
Members of the legal fraternity; and
Ladies and Gentlemen.
I feel I have been given enormous responsibility to speak on the last day of former Chief Justice Langa’s journey. On the 4th of September 2009, I had the unenviable task of speaking at the funeral of Mam Thandekile, Mancwabe at a function of a similar nature in this city. Although I understood that Chief Justice Langa was bearing the pain of losing a loved one, he maintained composure and fortitude throughout the service.
We would like to thank the President for declaring the late former Chief Justice Langa’s funeral a special official funeral. It is a gesture befitting of a jurist who has contributed so much to our democratic transformation and our jurisprudential maturity.
I am standing before you today to bid farewell to the former Chief Justice. You will appreciate that to give comfort through a speech to the family is not an appropriate palliative to soother their pain. Just as the pain of the loss of their mother was hopefully beginning to heal, another one of the loss of their father and brother is again being visited on them.
Born the second of seven children, the late Former Chief Justice Langa was born into a family of moral fibre with his father being a member of the clergy. Pulling himself through an arduous journey of distance education, he climbed from the lowest ranks of the judiciary to the highest. Through what he referred to as the “miracles of scholarship aid” he did not only become the highest judge in the land, but also of the highest court in our judicial system. This is a major achievement for a man who fought his way through the ranks of the Judicial system. Thirty five years from shirt-maker to a court clerk-cum-messenger to the Chief Justice is the triumph of the human spirit over adversity.
Born in 1939 in Bushbuckridge when the clouds of war were gathering in Europe, Chief Justice Langa grew during those trying times of the biggest Black mineworkers strike in 1946; the ascension to power of the Apartheid Government in 1948; the Defiance Campaign in 1952; the Freedom Charter in 1955 the Women’s March to the Union Buildings in 1956, the Sharpeville Massacre in 1960, the Soweto Uprising in 1976 and many other events that shaped his life as a human rights activist and lawyer. In defining the methodology of our struggle, these episodes also defined the late Chief Justice Langa’s approach to his entire life.
When the Constitutional Court was established, Justice Langa was appointed with ten others as the first judges of the new Court. He became its Deputy President in August 1997 and in November 2001 assumed the position of Deputy Chief Justice of South Africa. He was appointed the country’s Chief Justice and Head of the Constitutional Court with effect from June 2005. He retired in October 2009.
As I bid farewell to this eminent jurist, I do so with the knowledge that his contributions will be emulated by many who worked with him and who saw the true dedication of a South African patriot. Many patriots are defined by how they make the enemy surrender in a theatre of war. Justice Langa did so in the theatre of the legal profession.
Until that sad day when he breathed his last breath, we had the comfort of knowing that in our mists walked not only an encyclopaedia of our legal system, but also a person who had experienced the suffering of the ordinary men and women. He understood the experiences of Apartheid as he was also a victim. In his seminal writings and opinions, the poor and the unrepresented were his major concerns. Most of the work he undertook for his clients was pro bono, working in close co-operation with other doyens of our legal profession such as the Mxenges.
He left this world a better place. Through his tireless contributions to the constitutional development of our country, we are proud to share with both long-established and new democracies our experience in constitution-making. Justice Langa assisted other States to fine-tune their own Constitutions, when he sat at the Constitutional Review Committee of Zimbabwe, in Rwanda, Tanzania and as Commonwealth Envoy to the democratization of the Island of Fiji, playing a role in the Lesotho elections for the Southern Africa Development Community (SADC), as a member of the police Board on the transformation of the police, as a member of the review of health legislation, and the list is endless.
Taking part in the negotiations process was both a risk and an opportunity. The two sides had not melted into a single purpose in both their views for the future and their suspicions of the past. When the talks about talks started, there was undeniable apprehension that the de Klerk Government would change its mind and re-incarcerate them. Justice Langa was amongst those who took the risk at the instruction of his organisation. It was with a sigh of relief that common ground was found, and a South Africa for all was carefully, but painstakingly negotiated at the “Talks about Talks,” the Groote Schuur and the Pretoria Minutes which paved the way for the first democratic elections.
In his seminal judgement when he ruled against capital punishment, Justice Langa equated the culture of rights as extending not only to the weakest amongst us but also the worst amongst us. Using the Constitution as the barometer for his assertions, he confirmed that our society’s own morality is guarded by this instructive document – the Constitution of the Republic of South Africa. He was part of those who drew on the Constitution and he was in my view, better placed to interpret it the way it had been intended because he was part of its drafting.
As Chair of the Judicial Service Commission, Chief Justice Langa highlighted the issue of the transformation of the judiciary to represent the demographics of the country. He did this with the full knowledge that both the Constitution and the law were on his side. The current JSC is continuing with this task even though we know that there are forces that seek to reverse the gains that have been made since the late Chief Justice’s time. His untimely passing away calls on all of us to make sure that his sterling work in this regard was not in vain.
The transformation of the judiciary should of necessity go together with the transformation of the legal system because these are the two sides of the same coin. Chief Justice Langa’s passing away calls on all those who value our Constitution, including the transformative agents and organs of civil society in the area of justice and law, to give space to transformation of both the judiciary and the legal profession.
My reference to the transformative agents is a deliberate one. Their voices are now stymied and as the new organs of civil society in the field of law multiply, those that were in the forefront of our liberation such as NADEL and the Black Lawyers Association, have recoiled. As to their relevance in today’s South Africa, I wish to state categorically that they are still needed to assist in this challenging transformative agenda as a counterpoise to those organisations that are mushrooming to reverse the gains that have been made since 1994.
The challenges and the environment are different, but the collective voice of reason from the progressive legal profession will be of great assistance to the transformation of the judiciary and the legal profession. I do not seek to underplay the ideological trajectory upon which these transformative agents are based. As the recidivist tendencies to the old order are taking place within the cloak of a democratic dispensation, and as such, are likely to be acceptable as normal democratic expression, the voices for these gallant fighters for democracy need to be heard. Democracy will always be work-in-progress and those who bravely started this long road need to be constantly vigilant against the new tendencies.
The late former Justice Langa was not known for fearing unchartered territory. In trying to bring customary law within the fold of the Constitution, he made a ground-breaking judgement in the Bhe and Others v Khayelisha Magistrate and others case. Citing the flexibility of our judicial system, he sought to bring customary law closer to the Constitution decrying, as he did, that the positive aspects of customary law had been neglected in our law. Even as he analysed customary law and cited its consensus-seeking nature and its ability to foster good community relations, he found fault with its patriarchal approach, particularly those issues which deal with intestate successions.
Intestate successions continue to cause family disharmonies. As society we need to embrace the practice of writing our last wills and testaments so that these matters should not be decided by the Courts. In order to allow our courts to deal with their backlogs, we as society have a duty to assist them by dealing with our personal and family history so that we will allow the judiciary to deal with issues that are of the highest contestation.
Langa studied his South African society very well. Being aware that the removal of formal discrimination from the statute book would not automatically alter the behaviour of man, he penned the Walker case judgement where he established that the municipal rates levied by the Pretoria City Council were of an indirect discriminatory nature. The import of this case law should be a reminder to the other municipalities in a similar situation because the respondent was not disputing payment of his rates, but that others were paying less for a similar service.
He was bold to locate legal practitioners as products of their own societies. In the past there was a denial that the personal, moral and intellectual preconceptions form our views. Justice Langa indicated that it is precisely for this reason that we should accept and appreciate the role that is played by our own beliefs, opinions, and ideas play in taking decisions.
As an outstanding former member of the African National Congress in his own right, he could have chosen to turn a blind eye to some of Government’s own mistakes. However, he chose to speak truth to power, giving his own party and government the responsibility to uphold the values of the Constitution by leading by example. For his ability to do so without fear or favour, he strengthened our Constitutional democracy. We, as a country, are richer for his incisive and objective assessment of our current state and the Constitution upon which it is based.
The maxim that the wheels of justice turn slowly has universal acceptance. However, under Chief Justice Langa’s tenure, we can also add a corollary of justice’s redeeming quality: that it also grinded rather finely. He was meticulous, given to detail, crossing the T’s and dotting the I’s. He made sure that the concept of justice – that no matter how long it took, the final outcome would have been thoroughly interrogated.
He was a humble man, and all the accolades that have come and will continue to come to were not canvassed or solicited. In his tribute to Justice Langa, another eminent jurist, Former Justice Albie Sachs, states that when all the judges thought he was the most suitable to succeed as Deputy Chief Justice, only one person thought he was not suitable for the position – it was Justice Langa himself.
Over and above his own educational qualifications, Justice Langa had a string of honorary accolades from across the length and bread of the academic institutions. After an honorary Professor at the University of Natal, a string of others accolades followed from Yale, Cape Town, Rhodes Western Cape, UNISA and the University of Ireland. There were many others which are numerous to mention.
Given so much power to be the arbiter of last resort, a Constitutional Court judge could easily be tempted to abuse his position. There is also a temptation by some in our society to approach the Highest Court to find relief on issues that could be dealt with by other courts. We are grateful that our courts have worked extremely hard to make sure that encroachment of one into the other’s territory, the Executive, the Legislative and the Judiciary, have been deftly avoided. Justice Langa was alive to this separation of powers and worked tirelessly to assert the independence of the Judiciary while allowing the others arms to exercise their responsibilities.
Humiliating as the compulsory strip-tease for African work-seekers in cities was, his cause for seething anger was that the elderly whom he naturally respected, were also subjected to the same treatment in his presence. He personally saw how the collective punishment of African people, irrespective of their age, was sanctioned and metered out with viciousness. That he did not allow this experience to wreak revenge is testament to the true nature of the forgiving spirit. He was adamant in his assertion, that we must live beyond our past.
Justice Langa had a rare gift of listening. On one occasion where he was invited to speak, his assessment was that the occasion would not be ideal for spechyfying but to listen. His prepared notes aside, he allowed the audience to raise their own questions about how the wheels of justice turn. This to him was fulfilling.
By this single action, he destroyed the perception that the law is about the rich and the famous. He also demonstrated that the law can also be a strategic weapon in eradicating poverty and engendering the empowerment of the poor. It is a law that should be at the forefront of addressing the socio-economic rights of shelter, healthcare, food water, social security education and housing, land and the environment.
He was also equally concerned that many South Africans had no clear understanding of how the law works. To many of the letters from the public that the Constitutional Court received, there was no likelihood that their issues would be addressed by the Court. To his credit, Justice Langa instructed his staff to respond to all letters regardless of their legal merit. Understandably, this might have irked his staff who had to attend to what might have been of irrelevance to their core responsibilities. Such was his concern for the ordinary man that he wanted all to find solace and satisfaction in an institution which many of our people fear.
He was instrumental in the formation of the Democratic Lawyers’ Association and through his contributions with other activist lawyers of the time, this structure graduated to the National Democratic Lawyers Association which he served as President from 1988 to 1994. I had the pleasure to be part of this structure as Projects Co-ordinator when I came out of jail in 1990. Justice Langa also served in the structures of the United Democratic Front. I have therefore all the right to refer to him as Comrade Pius.
The Constitution Hill has been hailed as an architectural wonder, transcending from its past as a house of incarceration to its current use as the highest Court in our land. Justice Langa’s appreciation of the architecture was more than the architecture but that the design was such that from the benches where they sat, they could see people walking up and down pursuing their daily lives. This to him made the Constitutional Court the court of the people and made the Justices closer to them, even if only symbolically.
The late Chief Justice Langa was among the jurists in the world who could apply the law in its social context in such a manner that it resonates with the man on the street. His concern for the law as an extension of society; his consideration for the plight of the poor and his sharp understanding of the suffering of the ordinary man, are all hallmarks of a jurist who is grounded in the peculiar conditions of a transformative South Africa.
To him the relevance of law was not in lofty debates, necessary as they sometimes are in the profession, but how the law salvages the situation of a hungry child, a shelterless family and a needy mother. That was his rational for the law.
Even after retirement, Chief Justice Pius Langa contributed to the development of a democratic State. His availability to positively assist in the intractable contestation over the media and its regulation, led to a compromise between the contesting parties. He had the respect of both sides and his conclusions and recommendations were easily acceptable to both sides of the contestation.
He drew parallels between the judiciary and the media, stating that the independence of both was crucial for our democracy to flourish. His contributions to society, even after retirement, make good on the adage that Good judges never retire.
The contributions today and on Saturday will highlight the achievements of this gallant fighter of our democratic Constitution. He had his own challenges but it is not the level of challenges that make a man, but how he rises above them. Justice Langa rode through these challenges with aplomb. As a Judge he could not have satisfied all views. And that is the nature of our legal system.
Pertaining to the empowerment of women in the bench in 2007 Justice Langa initiated a nine-month training programme for aspirant women judges. The objective of this was to deal with the serious shortage of women on the bench. Women were encouraged to make themselves available for the vacancies in the High Court. The Office of the Chief Justice is still seized with this issue and results are beginning to show.
As we bid the Chief Justice of the people farewell, we would like to assure him that the Constitutional democracy he fought so hard for is safe. We are not oblivious to the constant challenges that will be thrown at it because it is transformative in its nature and is therefore bound to be challenged all the time. Its strength lies in how many times its survives the constant challenges to it.
The town of Bushbuckridge was given that name in the 1880s because of the large herds of buck that were found there. I am sure that from today another defining character will be added: that it gave birth to the first African Chief Justice and the Head of Constitutional Court. It is an honour any town would be proud of.
Sad as the occasion of the passing away of such an outstanding South African should be, we should wipe our tears and find comfort that Chief Justice Langa will now be joining his equally outstanding wife, Thandekile Mamncwabe in eternal peace.
Mndeni nezihlobo zakwaLanga; the whole justice family, the legal profession and all South Africans, we have lost one of our greatest sons. Akwehlanga lungehlanga.
Hamba Kahle Sothole!