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Johannesburg, South Africa

Constitutional Court opens for business

Wednesday, February 4, 2004

 

 

 

The first sitting of the country's highest court, the Constitutional Court, in its brand-new building in Johannesburg, took place on a rainy February morning amid construction vehicles, muddy puddles and hardhatted workers.

 

The court and the judges' chambers in Braamfontein are in the final stages of completion - large paintings are being positioned on the walls, grey slate floor tiles are being cleaned, and the final security details are being put in place.

 

The new court building is stunning: a mix of textures, shapes, different floor heights with slanting pillars in earthy greys, creams, whites and blacks, the perfect backdrop for the large, colourful paintings being hung.

 

Inside the courtroom the theme continues. Respecting the heritage of the site, previously The Fort, a grim prison for most of the last century, incarcerating many of apartheid's supposed enemies, the south wall of the room consists of bricks saved from the demolished awaiting-trial building. They've been placed in rough lines, and look almost unplastered, a rich striking red wall. The north wall is almost all glass, flooding the room with light.

 

The site previously consisted of a number of unimaginative prison buildings, overlooked by the parapets of the Fort on the top of the hill, a forbidding looking building itself. The buildings, positioned down the hill, have mostly been demolished, to make way for the exciting new development.

 

The judges' half-moon raised podium runs around the east side of the room, with each name printed just below the rim of the surface for the courtroom to see. The podium front is decorated in a cow hide pattern, in browns with splashes of white. In front of the podium is another long half-moon desk, filled with young legal clerks.

 

In front of them, facing the judges, are the two rows of seats for the applicant's and the respondent's legal teams. There's a single podium between them, and when the advocate stands at the podium, he is at eye level with the row of judges, instead of having to look up at the judge. And of course there's no witness dock.

 

The public benches consist of brown metal benches, resting on a dark blue, grey and white carpet. The judges sit on black leather chairs.

 

When I walked into the court just before 10 o'clock I assumed the lights still had to be switched on. You could still see clearly but lights would have been welcome. The microphones were also not working.

 

The entry of the formal entourage of 11 judges into the room lifted the atmosphere, and the lights didn't feel such a loss. They were dressed in long dark green robes with little white lace bibs, and solemnly took their seats. Chief Justice Arthur Chaskalson announced that the electricity was down, so requested counsel members to raise their voices.

 

The courtroom was full but not uncomfortable. TV crews and cameramen jostled for spots down the sides of the room, their flashlights illuminating the dimness.

 

The court has been sitting almost since the beginning of the country's new democracy, in a building across the road from the new court. The judges moved into their new chambers in January.

 

First case

 

The first case to be heard was one which may cost the government R30-million. The Constitutional Court has to decide whether to uphold a Cape High Court ruling that the government discriminated unfairly against National Party MPs because it contributed more to the pension funds of new MPs in the first five years of democracy. The reason for this was that the new democratic MPs had had their entry to parliament blocked previously, largely because of their race and that they were members of banned organisations.

 

The case was brought by 167 former MPs led by Frik van Heerden against finance minister Trevor Manuel. When Manuel's team lost the case in the Cape High Court, he lodged an appeal with the Constitutional Court.

 

The advocate for the MPs, Eduard Fagan, rose and took the podium. He said that an additional R23-million would have to be found to settle the case.

 

The advocate for Manuel, Gilbert Marcus, proposed that the affidavits were inadmissible, and that the case be dismissed with costs. He said too there was "inherent confusion in the argument" being brought by the litigants.

 

And so the proceedings went on, the judges interjecting with questions. Deputy Chief Justice Pius Langa stopped the questions and answers for a moment, and asked the photographers to turn off their flashes, and desist from moving around the court, looking for better picture angles. He said it was too distracting. Some photographers grimaced.

 

Marcus continued presenting his case: "As we understand our learned friends' argument . . . it has to be compliant with section 219 of the final constitution paragraph 50, page 62 . . ."

 

Each judge has a box or two of papers on their desk. Justice Chaskalson pulls out a bundle from his box, finding the page being referred to.

Suddenly the microphones started working, and Justice Chaskalson smiles. There is a perceptible easing of shoulders as people sit back in their chairs, relaxing, now able to hear more clearly.

 

Justice Kate O'Regan asks: "What is legal power?"

 

Marcus replies: "We do not act for the president, and can never speak on behalf of the president."

 

Then the lights went on. They're long oblong white lampshades hanging from indentations in the grey concrete ceiling, and although they don't give a great deal of light, the room can now be fully appreciated. It's a triple volume ceiling with the warm red brick on one side contrasting with the large window opposite it. The old bars from the demolished prison cells have been used as sunshading devices for the chamber window. Just above the judges' heads is a thin window running around a third of the room, with workers visible through the window.

The judges make notes throughout the proceedings, occasionally looking up, concentrating on the the advocate at the podium.

 

Justice Albie Sachs: "Is this about an equality challenge?"

 

Marcus: "What he in fact said, in volume 1, page 41, paragraph 19 . . . because the pension fund was closed in 1994 . . . the creation of a new fund was a constitutional requirement . . ."

 

Marcus picks up a large file, and finds volume 5, page 381.

 

Tea break

 

At 11.15am Justice Chaskalson announces a 15-minute tea break. I left the court room and walked along the corridor from which the judges' chambers led off. It is a pleasing space, with a space between each set of chambers. Finished with grey concrete and contrasting wood slate walkways, looking down over ponds, cycads, coral trees and mondo grass. The ceilings are also wood slated. Each chamber has a tall steel door and a balcony overlooking the gardens. The lifts around the corner are all glass. In fact the whole building contains of lot of glass, letting in light from the north and west.

 

People mingle during the tea break in the foyer of the court.

 

The entrance foyer to the court is a large space, with large wire works suspended from the ceiling and pillars at angles, some of them covered in attractive mosaic patterns. In the south-east corner is one of the two-storey stairwells, with its chipped stair edges and old steel door. The stairwell, together with three others, is to be made into a tower, to act as a landmark for the court, providing views both of the city and the northern suburbs.

 

Court resumes

 

At 11.30am the court resumes. Justice Langa asks: "Is affirmative action part of this action?"

 

Marcus: "The group in the main involved people who were excluded from the political process."

 

Langa: "… on the grounds of race, political beliefs?"

 

Marcus: "On both, but also anyone whose political beliefs were outlawed."

 

Justice Zak Yacoob: "A category of people who were discriminated against … "

 

Marcus: "The argument is a matter of degree. The level of disparity is not such a gross disparity. This is not a case of affordability but the equitable use of available resources. The state has limited resources . . . this is about how it chooses to use those resources."

Workmen walk past the back of the judges' heads, visible through the narrow window.

 

Midday

 

It was midday and the case was a long way from being finalised. Questions from the judges flowed steadily. After the tea break half of the public benches were empty. It was time for me to go too.

 

I quietly walked up the concrete steps and pushed open the large wooden swing door. The foyer was almost empty. I walked down the steps, admiring the artworks - William Kentridge and Gerard Sekoto stood out. The rain had stopped. I went outside, continued walking down the hill, on to a stairway called the Great African Steps, a walkway which will act as an interface between the new and old buildings, some of which still stand on the site. Young indigenous trees have been planted, a striking contrast to what the site used to be and a welcome addition now.

 

Source: joburg.org.za

 

 

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