Albie Sachs is a former justice of the Constitutional Court of South Africa. He will deliver the Global Centre for Pluralism Annual Lecture in Toronto on May 19.
I was rushing to catch my plane in Cape Town when a burly, middle-aged black man flung his arms around me, held me in a tight grip, and kept saying: "Thank you, thank you, thank you."
His embrace could only have been in response to the recent decision of South Africa's Constitutional Court, where in no uncertain terms the Chief Justice ordered President Jacob Zuma to pay back money spent unconstitutionally on security upgrades to his private home; the Chief Justice also rebuked Parliament for not exercising sufficient oversight.
Despite the fact that I had served on the Constitutional Court for 15 years, the unknown man's gratitude was misplaced. "It wasn't me," I protested. "I've been off the court for several years." I had to pull myself away to reach the departure gate as it was closing.
Nevertheless, I shared his jubilation. Millions of South Africans had watched the proceedings on television and cellphones. Their spirits had been lifted. I felt immense pride for the painstaking effort we, the first justices on the court, had put into establishing a completely new institution to defend our pristine open democracy.
And now that I am visiting Toronto to give a lecture for the Canada-based Global Centre for Pluralism, I am reminded of the enormous assistance that we got from the Supreme Court of Canada in creating a completely new form of legal reasoning.
How do judges in different parts of the world influence each other? At the formal level, it is done through the enunciation of legal doctrine.
The South African Constitution expressly encourages us to apply the values of an open and democratic society and to look at foreign law in making our decisions. In 1994, the Canadian Charter of Rights and Freedoms could not have been timelier for us, providing a decade of thoughtful, value-laden and finely honed judgments for us to look at. In our early years we devoured, interpreted and reinterpreted the decisions of the Dickson-Wilson court.
But the influence went well beyond responding to the wisdom (or obduracy) contained in law reports.
We South African judges got to know Claire, Frank, Beverley, Rosie and Charles very well, and our counterparts in turn became friendly with Arthur, Ismail, Sandile, Kate, Pius and Albie – first-name friendships. We visited each other's courts, met at international colloquia, served on various bodies together. We unconsciously imbibed each other's styles and modes of comportment and expression.
Frank tells me about the "first-ness" of the First Amendment in the United States, that American courts see government as the foe, whereas in Canada government is the friend. Rosie talks about the clash between civil rights and human rights when it comes to prosecuting sexual violence. Claire, in her emphatic way, speaks about human dignity and not formal classifications as being at the heart of advancing equality. Charles reminds me of the role that fraternity should play in the triad with liberty and equality.
A throwaway notion lodges itself in one's mind, biding its time, incubating, until it ends up in a judgment at the other end of the Earth.
And at the other end of the Earth, we see that we are donors as well as recipients; judges in Canada take account of our approach to truth commissions, capital punishment, acknowledging living customary law in a way that produces gender equality, prisoners' right to vote, same-sex marriages, aboriginal title and more.
The eloquent and measured way in which our judiciary held President Zuma to account is evidence of South Africa's renewed confidence in constitutionalism – a constitutionalism that sprouts from many shared roots, including Canada's Charter.
Now I'm about to arrive at Toronto's airport. What adventures await me there?
Albie Sachs is a former justice of the Constitutional Court of South Africa. He will deliver the Global Centre for Pluralism Annual Lecture in Toronto tonight.