Johann Kriegler and Gareth Cliff
The South Africa Constitution
Judge Johann Kriegler and Gareth Cliff - The South Africa Constitution
- So I’ll just do a brief introduction for tonight, and then I may be moving the camera around like a cameraman as well. But we’ll try to get you the best possible clear audio and video this evening. I’m delighted to have someone who was absolutely instrumental in the formation of this new South Africa 30 years ago, not only in respect of being the man who headed up the IEC, the Independent Electoral Commission, the first one of its kind, the first to oversee a truly democratic election in a country where everyone in the world was watching, and I think, with bated breath trying to determine the freedom and the fairness of those elections. But he also ended up serving as our constitutional court judge, and I think Deputy Chief Justice for, no, right. Only constitutional court judge, as if that’s, you know, some kind of demotion, on the first Constitutional Court with Justice Chaskalson and Yacoob and so many others who are well known to us in South Africa. He is Judge Johann Kriegler. It is a great pleasure to have him here. I’m going to hand over to my co-host, PUU-MEE, and I will become something of a producer during the course of this as well as our host. So, PUUMS, over to you.
Welcome, welcome, everyone. Judge, thank you so much for indulging us with your time.
[Johann] Thank you for inviting me.
There’s so many questions that we can ask, and when we were putting this together, we are thinking, looking at the tears that we are at today, but we are still very lucky to have people with us today, like yourself who were there at the beginning.
Well, seeing myself on camera, I realised that I’m past my sell-by date. I shouldn’t still be available, but I happen to be, so I’m glad to be here.
Well, maybe if we start with you passing your mind back and taking us and painting a picture for us leading up to that historic, your experiences and what you were thinking about then and what you were worried about. Let’s start there.
If we had 40 days, I could do that fully. I’ll do it in two ticks. We did not know what the job entailed. None of the commissioners had ever run an election of any kind. Nobody in the country had ever run an election for the whole country. Large parts of the country had never had an election. Large parts of the electorate were illiterate. Large parts of the country had no electricity. Significant parts of the country were not approachable, traffic-able by road. The security situation was pretty bad. There were a number of political groupings that were boycotting and some sabotaging the election. It was an insurmountable obstacle. If we had known what we were doing, we would’ve said, we can’t do it. Sorry, we need two years. In fact, that’s what the experts from the United Nations told us. This is a mad project, but we did it. We did it not perfectly, not even imperfectly. We did it SPAH-ZAH shop style, Buddhist style. We did it South African style. It succeeded largely because the country as a whole was determined to go through this rite of passage that everybody realised that the election was a necessary step towards our entering the new South Africa. The IEC is due a lot of credit for spreading that message, but the real critical political leadership of the time who persuaded the broad mass of the people that this is a job that all of us have got to do and get through with it. And that’s what I was thinking at the time. We were told you have four months to produce the election. At our first meeting in January ‘94, the commissioners looked at one another and said, one thing is for sure, these elections are going to take place on the 27th of April, come hell or high water. We will not think of a postponement and we’ll make it known to everybody. We are determined. The country is determined. We will go to the polls, 27th of April, whatever you do, bombs, threats, MPs, nevermind.
MPs, I remember that, and remember those, you know, young as we were at the time, but I remember–
I’m sorry, but we had it all set up and then apparently something changed in the setting. So we’re just trying to figure out how we can stop that from happening. MacBook, yes. Speakers, there we are. This should sort it out.
[Person] Yes.
Now you won’t have a problem, am I right?
[Person] Yes, thank you so much.
Alright, very good. Thanks for letting me know. Sorry about that, everybody. All right, so we were in the middle of a question.
in the middle of the court, of rioting MPs in the middle of Johannesburg. There was, I mean, during the negotiation, there was the AWB coming into the World Trade Centre with the car trying to stop them. There were people saying they’re not coming to the election and you pulled it off and began to pull together a nation.
You say we pulled it off. Yes, we did. But ironically, with hindsight, we know that it had not been for the, it’d been threatening in downtown Johannesburg. If it hadn’t been for the shooting at Shell House–
[PUU-MEE] Shell house.
If it hadn’t been for the shooting in Bophuthatswana shown live on television, a number of people who were opposed to the election were taught a lesson. It was important that those things happened because in fact, it helped to facilitate the right atmosphere for the elections. Fate works in strange ways.
And here we are 30 years later at another historic junction in South Africa. We were talking about the number of young people that are eligible to vote this year, the number of parties that are on the ballot, which is almost probably twice the size of what it was in '94, I think, and a lot of turmoil in the country. What are your views on where we are, how far we’ve come, but also how far we haven’t moved from those 30 years ago?
Probably, let me answer the second one first. We’ve come an immeasurable distance. The country is unrecognisable as the country that we had before the breakthrough in 1994. It was a different country with a different society. We think differently. We look differently, we act differently. That does not mean that there aren’t a lot of people who are disappointed at, we have not done better than we have done. And at the same time, there are grounds for disappointment, for disillusionment. But once again, it’s the electorate’s opportunity to give a mandate to the political masters whom they trust, each one of its own choice. I want to make one point to you about the multitude of parties. There are very few political parties in the country that are truly there on a programme of principles. We have a number of political parties that are really no more than the manifestation of the leader of that party. They’re personal support groups. That is unfortunate. It leads to even more uncertainty as to what’s going to happen after the election. Everybody’s talking about coalition this way and coalition that way. But if you have people who are there in their own right as individuals who owe no loyalty to any support group, to any political party that has voted for that person or those individuals in order to carry out certain mandates on behalf of the electorate, the scene is a little cloudy.
And what are the lessons that you think we need to look back at that time and say, this is what we need to think about as an electorate going into this election that come from back then, what we got right and what we got wrong back then. What are the lessons for us?
What we got right was that everybody accepted that the IEC was doing the best it could. We established not our competence, but our integrity, that we were honest, that you could trust us. The mistakes we made would be mistakes in good faith. And I firmly believe that that is still the truth. I know the current commissioners, I know the senior staff at the IEC. The Electoral Commission of today has not got the advantages that we had. It doesn’t have charismatic leaders backing it and supporting it. The leadership today is not as shiny as it was in '94. It hasn’t got the excitement of the married, it’s a honeymoon. It’s a very, very sober occasion, a very sombre occasion, and it doesn’t have the excitement to carry us through. That requires that every political party, every person aspiring for support at the ballots on the 29th of May is under an obligation to support the unquestioned authority of the referee who is to run this very, very difficult operation. One thing that, two things, everybody thinks she or he is an electoral expert. Well, the second thing is elections are both in principle and legally and above all, administratively extremely tricky. Very, very difficult, unpredictable. There’s only one certainty in administering an election. And believe me, I know, I’ve done it in many places. One thing will go wrong, at least one, and it’ll go wrong at the most inconvenient time and place. And don’t shoot the ref. The ref has got an incredibly tricky job. And you know what? Scoring points off the ref scores nobody any points on the scoreboard. The true measure of success is shown by the number of votes you gain from the electorate, not by the number of smears or attacks or criticism you level at the electoral commission.
So the voting gets us through the gate. But on the other side is a founding document for our country, which is our constitution. And all over the world, it’s lauded as one of the most progressive constitutions and one that is an incredible feat. And you were one of the people that worked on this document.
I’d like to claim that credit. It would not be due. The constitution is the product of an evolution that started in the 1940s with the first ANC documents aimed at the future. It goes through the freedom charter. It goes through a lot of work that was done by Albie Sachs and Carter AHZ-MAHL in Ireland in the eighties. It goes through a lot of work that was done by the SA Law Commission under the old regime. Everybody was talking and thinking about the future constitution. It was then drafted by close expert negotiation over a period of many, many months, and what we in the constitutional court had to do was to see whether that which had been produced by the Constitutional Assembly that was elected in 1994, whether that document that they produced actually conformed to a blueprint that had been drafted at the negotiating table prior to the election. So our job essentially was to say, does this document that has now been produced comply with the essential requirements that had been drafted before? Does the building fit the blueprint that was provided?
And we came to the conclusion that overwhelmingly, yes, it did comply, but there were a number of, I think there were five instances that we found after two weeks in court and two months of very, very hard work, we said to the Constitutional Assembly, these five points, please go back to the drawing board, correct them. They did that, they not only did that, they corrected or improved some other things and gave us a second draught. So that what we have today as the Constitution that is so respected and admired and sometimes copied is the product of a long, careful, selective process wherein all the, not only experts but the public at large was involved. You will maybe recall, or maybe you’re too young, but the Constitutional Assembly held meetings all over the country, asking people right down to the village level, what do you see about this? Do you agree with this? This is why we are agreeing on that. So it is indeed truly a product of the will of the people of South Africa. And that’s why, inter alia, it has stood the test over the last 30 years.
Yeah. Well, judge, I’ve got my copy here of the Constitution, which we were given at the university and this was handed out to everyone in South Africa and everyone who wanted one could get one. It’s a very good idea to do this. It helped me through law school for much of the way. But it also is something that I think South Africans hold in high regard even to today. I saw trust in institutions. They brought out a piece of research not so long ago. People don’t really trust politicians. Surprise, surprise. They don’t really trust big business. They don’t really trust government ministers. They don’t necessarily trust the president. But one of the things that South Africans do trust is the Constitution, overwhelmingly. I mean, it’s to the tune of some 70%, 80% of the people who think even if they’re not entirely sure what’s in here, it must be good, which is an incredible achievement, I think.
But it’s also translated into all 11 official languages. You know, one of the things that this constitution, because for the first time, all South Africans were represented and thought about in the drafting of this foundational document of our country. And so putting it into all of these languages was also important so that the widest number of people could have access to it.
But my question then is we’re not really the only country in the world that has a constitution as the supreme law of the land. But in South Africa, there was such concern after '94 that, you know, it would be a bit of a free for all, you’d have all these contestations for power, that the Constitution gave us a blueprint as to how to behave going forward, which I think was quite new.
And not only how we are to perform, but how we hope to perform in the future. It’s a prescriptive and also an aspirational document. We are aiming at being a better place than we are at the moment. But technically the Constitution is a superb document. It does everything a constitution should do. It says who in this country is entitled to what? Who is responsible for what? Who is accountable to whom for what? What happens if you don’t do what you should be doing and what happens if you do do what you should be doing? It is a perfect document for the control of interpersonal relations from the highest level of the execution of state power down to the lowest level at the municipal level. But, and Gareth, this is crucial, a constitution, our constitution is a document. It’s a paper. It lives only to the extent that the people make it work. The Constitution is as strong as the political will of the people to make it work. We have been blessed over the last 30 years with legislators, executives, politicians, lawyers, businessmen, general public who accept the authority of the Constitution, and that’s why it is so strong. Madiba was the very first. In the first year of his rule, the constitutional court produced judgement setting aside a proclamation of his relating to the local government elections. It was a very, very unpopular decision. We took it with great, great reluctance, but we had to, but we did say in the judgement , President Mandela, you are wrong. You had no power to issue this proclamation. It meant that Parliament had to reconvene. It meant that there was a great deal of embarrassment in government circles. The president went on national radio and television at until 11 o'clock the morning that we issued that judgement in . And he said, The Constitutional Court ruled as follows this morning. If I were to say I agree with it, I would be lying. But that’s not relevant. What the Constitutional Court says is the Constitution is the Constitution. What it says is the law is the law. I and my government will obey every word of it. That set the tone for us to this day.
[Gareth] Were there any other events through the course of the last 30 years, which you might have watched even after you’d retired as a constitutional court judge, where you thought this Constitution is under some threat? Were there moments of concern?
There have been moments of concern, yes. But, by and large, a constitution such as ours recognises that there are different forces and different interests within a body politic in any jurisdiction. And there is a tension between people of different views, and what the Constitution tries to do is to regulate them. It is inevitable. It is inherent in a constitution such as ours, where there is a legislature and an executive, either parliament or the cabinet and then the judiciary, that there will be tension between them. And at times some politicians have expressed displeasure. Some politicians have in moments of extreme anger, I would say, expressed views about the validity of the constitution and the qualifications and integrity of some or other court. Those have been transient. They have not been the pattern. What distinguishes our country from the overwhelming majority of emergent democracies is that our constitution has held up during the most crucial first 30 years. Our respect for it, our general acceptance of its authority has been maintained. And that, of course is the most important thing of the last 30 years.
But we have had some changes going into this election. There was a challenge because we’ve got a proportional representation, and we, before this election, voted for a party and the party put forward who their president would be, and parliament would vote for the president. This time, for the first time we’ve got independents also standing in the ballot, and this was a constitutional change that was 'cause it was brought to the court. What do you think of this decision? And we’re not going to hold you to it, but we would love to know what your view is, because as you say, it was a very considered constitution. Putting it together was many, many years, many years and many different experts and looking around the world. And now there is this change.
I hold the constitutional court in great esteem. I have every respect for the colleagues and former colleagues of mine on that court. I do however disagree with their decision with regard to individuals, candidates standing for parliament. I believe that our constitution, as it says in the first section of the Constitution, is a multi-party representative democracy. It’s a part, a system that is built on the existence of political parties and the functioning of political parties that make it work. I don’t believe in the merit of having individuals elected who have no programme of principles, who are not accountable to a political disciplinary body, who are not accountable to execute any programme that they have promised and undertaken to perform. I do not wish to denigrate any of the individuals standing for election at the end of the month, some of them I know personally. I happen to be very fond of SAH-KEE AHZ-MAN. I do not believe that our system as it is at the moment, not because of proportional representation, but because it’s a party run parliament, I don’t think they can make a significant difference in Cape Town when first they walk into the building and they say, where’s the bathroom? Where’s the lavatory?
[PUU-MEE] Where’s my parking spot?
Who tells us where’s the agenda for tomorrow? I believe that our system has worked because it has eased its way in working through political parties. And let me make one point clear. The suggestion that the disenchantment with the politicians is due to proportional representation is nonsense. Go and look at the Brits, for instance, where there is strong agitation for abandonment of the First Past the Post system because they want proportional representation. There’s a strong suggestion that the Labour Party will try to introduce it next year in the UK, the home of First Past the Post individual constitutionally elected members. The point is, and ask me, I happen to know, lots of things I don’t know, but there are a few things I do know. Now I do know about elections. I also do know about the elections even in this country, in the days of the old South Africa, when you had first past the post elections, these individual constituencies that some people are agitating for again. If you put up the garden gate as the candidate in a NAT-owned seat, he or she would be elected. You got nominated by the party because of the party’s influence and your loyalty to the party. You were not ever elected because of the beauty of your blue eyes or your loyalty to the country, or any individual quality other than recognised by one of the major parties. It is like that in the United Kingdom. It is like that in the United States. It is like that in Australia, in Canada, wherever you have first past the post, it is still essentially run by political parties, and rightly so, because they are people who are professionals who dedicate themselves to qualify to run the country at all of its levels. It’s not a job that anybody can walk in to do on general knowhow. It is a skilled job to be a legislator. It is a skilled, responsible job to be a politician. The fact that we have lousy politicians is largely due to the fact of our history. We have a majority government, good or bad, for good historical reasons. That’s the way it’s been up to now. And the disenchantment has largely been frustration on the part of those who oppose the government, and the disenchantment has largely been frustration on the part of those who support the government, but don’t get into parliament.
And what about the land issues? You know, this is something that over the past couple of years has become such a kicking ball for a lot of the populist politicians, and that there is provision in section 25 around the land and expropriation. But there’s so much talk about changing the constitution because people are unhappy with the way the issue of land and disposition of land been dealt with to date.
One must understand that the issue of land since time immemorial has a profoundly rudimentary, elementary, gut importance for human beings. To have your own territory has been crucial to the survival of people throughout history. Land is emotional, it is incredibly influential in its political sense. But when you ask people, what do you mean by it, what does it mean? Listen to all of the debate about it. It is a deeply emotional, political, atavistic issue. It cannot be controlled by a piece of paper, whether you call it a constitution or not. The respect of people for land, the yearning for land will push aside any constitutional provision to the contrary It would, in my opinion, be a mistake. I do believe that recognition of respect for private property in all of its forms is fundamental to the survival of our democracy to our society. But when people start talking about land, land, they’re not, they don’t mean I want a plot of land on which I can do something. It means they are mightily angry because the whites replaced the blacks in large parts of the country, in control. It’s not so much the ownership as the political control of the country that it is about. Amending section 25 of the Constitution will not change that. It’ll remain an issue. It’ll remain a deeply emotional and divisive issue in the country. But it doesn’t mean that the debate is going to go away. We talk ostensibly the same language when we debate about the question of land. We actually talk past one another. We talk about, people talk with a sense of profound ethnic disposition of the place that they regarded, that the grandparents, their forefathers regarded as their place. Africanas in particular have the same commitment to soil, to land. It’s emotional, it’s not legal, it’s not intellectual. You don’t solve those by debate. You solve those by negotiation, discussion, and that adaptation, reconciliation, and understanding over time.
[PUU-MEE] I was fascinated when you walked in, that one of the first things that yourself and Gareth spoke about was family land, and that you acted for Gareth’s family.
Yes.
[Gareth] Yeah, I must be honest with you, I didn’t know this, so let me just help everybody understand. So a brief–
[Johann] Long before Gareth’s .
Yeah, long before I was even in the world, my grandparents were expropriated by the National Party government from their property because they wanted to build the Atomic Energy Corporation, the nuclear reactor, Pelindaba. And it was called Pelindaba, by the way, because when my great-grandfather did the deal with the local chief, he said Pelindaba at the end, because the negotiation was settled. So at least we were entitled to that according to the local authorities. But Judge Kriegler, then an advocate, was obviously representing our family against the then-government, a situation that so many black families find themselves in now trying to reclaim land which is ancestrally theirs. And so yes, this is a hugely emotive issue, and I’ve still got five generations of the family buried out there, including my grandfather who the judge knew. But I think that the land is part of a whole lot of questions that I wanted to ask you. And I don’t want us to run out of time, so PUU-MEE’s going to keep us honest.
[PUU-MEE] And I’m looking at the questions online.
Yeah, please.
[PUU-MEE] It’s open for anybody who’s watching who wants to send us questions, and we will put them to the judge
And judge, it would be remiss of me to not ask you about the state of the judiciary. And there’s so much of this constitution that has to do with the legislature, the executive, the judiciary, their roles and responsibilities. Having been a judge in the constitutional court, the highest court in the land, and having seen how the decisions made there then cascade down to the other courts, we’ve had a lot of questions in the past 30 years about South Africa’s, the health of our courts, health of the criminal justice system in particular. And we’ve had chief justices like Justice Mogoeng Mogoeng, who have been very outspoken about how important it is that that judiciary remains independent of interference from the other two branches of government. How do you think we’ve done over 30 years,
Gareth, I am technically still a judge. The theory is that once appointed, you remain a judge until you die. So I am under certain constraints when I comment on the judiciary. And you must understand that, and the viewers must please accept that. The Constitution had one brilliant idea and that was the Judicial Service Commission. It’s always been a problem in democracies all around the world where you have the separation of powers between the executive, the legislators and the judiciary. How do you create the judiciary and how do you keep it accountable if it’s to be independent of the other two? And we came up with the idea of the Judicial Service commission, a brilliant idea. It was copied in several jurisdictions where I’ve since worked. It’s been a mess. It has not worked as it should.
It has failed to do its job, not because the system is wrong, not because the idea is wrong, not because its composition is wrong, but because of the people who were in it from time to time. I believe they had a crucial road to ensure one thing only, and that was the integrity of the judicial process of this country, and they got bogged down in politics. They got bogged down in politics way back before the turn of the century already. It’s got worse since it is now often a mere platform for political band-standing, and that has had a deleterious effect on the composition and hence the competence of the judiciary. It is not as good as it could have been. It is doing the job well enough, it could have done the job better if the JSC had done its job, if it had stuck to its duty. The magistracy, which is not subject to the jurisdiction of the Judicial Service Commission, is unfortunately no better. The Magistrates Commission, which is really protected in the case of the lower courts, the Magistrates Commission has done no better than the Judicial Service Commission. Not for the same political reasons, but for bureaucratic bungling, red tape, slowness, you can find a magistrate on suspension for several years, four, five years. This is somebody drawing a full salary and sitting at home while under the deepest of black clouds that would unfit her or him to be a judicial officer once it was established. Those people should not be around for so long. They should get around to dealing with it much more quickly. The Judicial Service Commission, of course, was notorious in the way it failed to deal with a couple of important judicial failures over many, many years. So finally, yes, the judiciary is doing its job. It’s doing its job competently. I would’ve been happier if it was doing its job a little bit better.
[Gareth] And the constitutional court, I mean that’s an–
Constitutional court is is not exempted from that. I’m sure my colleagues there are as unhappy as I am at the fact that the turnover of cases is so long. The court over overloaded with work. It used to be only a constitutional court. It is now the final court in all respects. It still has only one court sitting with all of the members all the time. It is finding it extremely difficult to cope, and I would not be surprised if, in the not too distant future, there was a suggestion that there be some radical change. I’m not promoting it, but I wouldn’t be surprised if it were to come about.
Q&A and Comments:
Q - [PUU-MEE] So there’s a question here. Is it a question? No, I think it’s a statement from Michael BLAH-KEHR, but I’m going to turn it into a question, and it’s about Mr. Zuma and Mr. Ramaphosa and respecting the Constitution, that in the past, these are the last two presidents that we’ve had, and you told such a beautiful story about Nelson Mandela, that that they don’t respect the Constitution. And I’m not, don’t see themselves above it. I don’t agree with when he wouldn’t go to the Zuma Commission. And then now with all of the happenings with Mr. Ramaphosa with regard to money on his farm and what’s happening with that as it is now in apex court. So this, Michael BLAHK says, We’re being politically correct, those two have not respected the Constitution.
A - I’m sorry, I have never been politically correct in my life, and I’m not that now. I speak my mind as an expert knowing what I’m talking about. Whether Mr. Ramaphosa respects the Constitution as a holy institution is a different matter. The fact that he is kept to the constitution by the constitution, by the opposition, by the courts means that he stays within the four corners of the Constitution. That’s all that can be expected of him. For him to hold it in reverence to something else. And to say that the fact that he, that his staff hid a large sum of cash in the cushions in his game farm, therefore that shows his attitude towards the Constitution is simply a leap that I don’t think anybody can make in logic.
Q - [PUU-MEE] And Mr. Zuma?
A - [Johann] Mr. Zuma has publicly expressed his contempt for the conditional values and for, he has said so. I don’t have to comment on it. I presume that the particular either, instrumental with the electorate, number of things that the constitutional court’s ruled to be unconstitutional, inter alia, penalty. I’m not talking behind the man’s back. I have read what he has been reported to have said.
- [Gareth] Good questions.
Q - [PUU-MEE] Yeah, there’s one about unqualified actors, and as you were saying with the people that we now have sitting in our parliament. Denise Samuel is asking, Is it not within the constitution or is it within the purview of the Election Committee to include or not unqualified actors without a true following or registered party to be on the ballot box?
A - When we say qualified, we must be clear what we’re talking about. There are countries where you need a certain level of education to qualify for certain levels of a legislative representation, of none, and rightly so. The fact that you have a double doctorate in whatever doesn’t make you any wiser than Mandela who’s been around and has seen the world. Certainly, the double doctor would know more than Mandela about what is good for Mandela in his home. That’s democracy. The qualification in the sense that you are sufficiently backed, you have sufficient support is crucial to any system. We have one weakness in our constitution and that is that although it is right that we have proportional representation in which everybody’s voice will count, every vote counts eventually, unlike with the first past the post. But in fact, all jurisdictions that I know of, other than ours, have a threshold. You need a certain percentage of the electorate support before you actually qualify to be represented in Parliament. It’s 2% of the electorate, 4%. Some places it’s even 6%. And if we were to have a 2%, which means that if, unless you get 2% of the overall votes cast, you get no seats in parliament, and if we had that rule, we would have at the outset, four or five parties in parliament.
I think it’s, at the moment, it would be four. It does serve to sober one up. It does also serve, in my respectful view, democracy. You don’t go to parliament as an individual to go and do what you want to do. Democracy means I act in concert with my fellow citizens. We started like that when originally we thought if we want to be able to deal with a mastodon and kill enough of them for us to eat, we’ve got to work together. We’ve got to make a plan, all of us. And since those days, people have learn, you do things, you do important things in concert with one another. And if you run the country, you run the country by a good, by consultation, by debate, by putting down on paper, or write, We agree on that. We don’t do this, we do that. That means those are political parties, not just individuals who happen to have some low populous political parties, do need a minimum of public support, in my view, to be represented in the legislature at a different level in all of the legislatures, national, provincial, and local.
Q - [PUU-MEE] Amir has a very long statement here, but I think the gist of it is also around the protection of minorities in South Africa. We spoke about 11 languages and South Africa being such a broad spectrum of different types of people. What about the protections of the minorities in the Constitution?
A - I could guess the whole language of the person and I’m not sure that, I can’t even guess the individual person. Of course, of course democracy, representative democracy does not mean majoritarianism. It does not mean as then-President Zuma on one occasion said, We can do it, what we like, because we’re the majority. That’s not our country, that’s not our constitution, that’s not democracy. The Constitution recognises rights of my, in terms of respect for legislature and the executive are acting in obedience with those prescribed rules is a matter of heated political debate. Certainly, the Africana cultural community suggests that its rights are being denied by the state, that the respect for Afrikaans is being diminished. They say that the fact that there is now today no state supported university that recognises Afrikaans as the medium of instruction is wrong. They say that the amendments to the National School Education legislation means that the administrative majoritarian agencies, to determine the language of schools, to change the language of primary schools that teach Afrikaans, to teach otherwise. It’s a debate. There is a strong debate on the other side saying that the schools are being kept as islands of protection and isolation and neo-apartheid. I’m not going to say who’s right, who’s wrong, but it’s difficult.
Q - [PUU-MEE] There’s a question, we have four minutes, three minutes, so I think if you can, a short answer to this one, but it’s also looking abroad at other types of courts. A lot of talk over the past couple of months with what is happening in the Middle East and the ANC’S decision to go to the ICJ, and as we wait for feedback from that particular action, what is your view on not just the action of the ANC taking Israel to the ICJ, but also how bigger courts, international courts, play with different countries and the different aspirations of–
A - [Johann] For me, I’ve been to Palestine, I was part of the commission of inquiry there half a century ago, 25 years ago.
[PUU-MEE] That’s only a quarter of a century.
At the turn of the century. It is truly an intractable problem. Unlike South Africa with which Israel is often compared, they do not have two sets of society who are prepared to live with one another. We did, we live with one another. You and I can sit and debate about the Constitution because we’re all South Africans. There are no Israeli, Palestinians. You are either Israeli or you’re a Palestinian and you do not recognise the right of the other to exist in a state of its own. That our country decided as a matter of diplomacy to launch proceedings, I think, was commendable, that it gained us some, if I may use the, no, I won’t say use, because that would be inappropriate. It did gain us support in a large number of countries and respect, and rightfully so. That the issue is a little more tricky than just saying to the Israelis, stop shooting, without saying to Hamas, stop shooting, is also unfortunately true. The emotions once again override reality. I do not see peace in that part of the world in my lifetime, or for that matter, in yours.
[Gareth] Just a big thank you to everyone who’s joined us, and again, my apologies for any of the technical difficulties, the difficulties we experienced at the beginning. I hope that you’ve enjoyed speaking to Judge Kriegler as much as PUU-MEE and I have. It really is quite something to tap into the wisdom of someone who’s been such an absolutely integral part of the story of South Africa in 1994, before that and after, and the tremendous contribution that you’ve made to this country of our. I’ve just got to say thank you on behalf of the next generation, and I think even if they’re unwilling, the generations in the future will be grateful in the long run.
Thank you, Gareth. I think most of what you said is un-earned, but I feel warmer around the heart that you say–
[PUU-MEE] Also all that humility
[Gareth] Such, no, great man. Thank you sir. Thank you very much.
[PUU-MEE] Thank you for your time.
[Gareth] And thank you everybody at Lockdown University. The next episode I’ll make sure we have everything in order so that you don’t have to hear echoes or any other such nonsense. Thank you so much.