In celebration of its 80th anniversary, the University of the Free State’s Faculty of Law hosted the second annual Dean’s Prestige Lecture on 29 July 2025, in partnership with the Albie Sachs Constitutionalism and Rule of Law Trust (ASCAROL). Born from student enthusiasm following last year’s inaugural event, the collaboration was formalised as a five-year agreement to promote justice, memory, and constitutional integrity.

In his opening remarks, Dr Jacques Matthee, Vice-Dean: Learning, Teaching, Innovation, and Digitalisation, stated: “As we celebrate the 80th anniversary of the faculty, we host the second annual Albie Sachs Lecture. After last year’s inaugural lecture, students asked for more. With the collaboration, that proposal became a partnership, and together we have established a yearly Dean’s Prestige Lecture in support of our shared commitment to promoting justice and the rule of law.” 

‘No, You Can’t, Yes You Can, Mr President’ 

With wit, reflection, and piercing insight, Justice Albie Sachs, Emeritus Justice of the Constitutional Court, delivered a lecture titled ‘No, You Can’t, Yes You Can, Mr President: How the Constitutional Court Held the President Accountable’. 

The talk took the audience on a journey through some of South Africa’s most defining constitutional moments – presidential power versus constitutional principle – delivered through the lens of six landmark judgments.

Justice Sachs opened with 14 February 1995, recalling the inauguration of South Africa’s first Constitutional Court – the beginning of a new legal order for the 11 justices and for South Africa. “[President Nelson] Mandela was there,” Sachs recalled. “He epitomised the resolution, the vision, change, the heart, spirit, and intelligence that gave us the new Constitution.” 

He added that just six months later, the same court struck down two proclamations issued by Mandela himself. “That’s how we showed our gratitude,” Sachs joked. The case reaffirmed that law-making authority rests with Parliament, not with the President. Mandela accepted the ruling publicly and gracefully. “That is the day we moved from being a political democracy to a constitutional democracy.” The verdict? “Constitution: 1, Mandela: 0.”

In the Hugo case, Sachs recounted the story of Hugo, a prisoner in Durban who, upon hearing that Mandela had granted clemency to certain categories of offenders – including people with disabilities, those not convicted of violent crimes, and mothers of children under 12 – believed he had been discriminated against for being a man. Ultimately, while the Court upheld the clemency order, Sachs reflected on how the case touched on patriarchal stereotypes and their unintended effects. Still, the court ruled in Mandela’s favour. The score: “President: 1, Constitution: 1.” 

The third case was one that blurred politics, power, and sport: the South African Rugby Football Union (SARFU) case. Sachs described the tensions between Louis Luyt, then-president of the Rugby Union, and President Mandela, who had launched a commission of inquiry into the union’s management, citing issues of racism and misgovernance. The case reached the Constitutional Court, and controversy grew when five judges, including Sachs, were asked to recuse themselves due to perceived closeness to Mandela. Ultimately, the Court unanimously ruled in Mandela’s favour, holding that he had acted lawfully and within constitutional bounds in establishing the commission. Sachs recounted the unease, the weight of public scrutiny, and the importance of judicial independence. The score: “President: 2, Constitution: 1.”

In the Pharmaceutical Manufacturers case, a seemingly small error had large constitutional implications. Mandela had signed into law a new Medicines Amendment Act, legislation meant to regulate dangerous substances. Later, it was realised that the act had been signed prematurely, before the accompanying schedules had been finalised. The case made its way to the Constitutional Court, which struck down the President’s action for being irrational, reinforcing the principle that even good intentions must follow constitutional process. But, as Sachs explained, Mandela had come to the same conclusion and welcomed the ruling. So while technically the action was invalidated, the outcome aligned with the President’s later position. Score: “President: 2.5, Constitution: 2.”

Next, Sachs turned to the Liquor Bill judgment, involving legislation around the regulation, sale, and distribution of alcohol. The case concerned whether the national government had the power to pass legislation regulating liquor trade, a competency shared with provinces. The court found that the bill encroached on provincial powers and declared aspects of it invalid. The ruling affirmed that legislative powers must respect jurisdictional boundaries. Score: “President: 3.5, Constitution: 2.5.”

One of the most emotionally charged moments came when Sachs recounted the Treatment Action Campaign (TAC) case during President Thabo Mbeki’s administration. The case took on the government’s refusal to make antiretroviral (ARV) treatment available to pregnant women at public hospitals, citing the need for further testing. Sachs described the national heartbreak, the activism, and the urgency. The Constitutional Court ruled that the government had a constitutional obligation to provide healthcare, especially where lives were at risk. “As we stood up from the bench,” Sachs said, “I went into chambers and cried. I cried because I am a judge. We have a Constitution. We wrote that Constitution.” The score now: “President: 3.5, Constitution: 3.5.”

He concluded with one of South Africa’s most significant constitutional confrontations: the Nkandla judgment involving President Jacob Zuma and the powers of the Public Protector. The issue revolved around whether the Public Protector’s findings were binding. While a lower court had held that Parliament could choose whether or not to act on her findings, the Constitutional Court reversed that position. It ruled that the Public Protector’s remedial actions were indeed binding, unless reviewed and set aside by a court. Parliament, in turn, was obligated to act. This was a landmark moment for accountability in democratic South Africa. Sachs’ scoreboard: “Constitution: 4.5, President: 3.5.”

A living legacy of constitutionalism

By the end of the lecture, Sachs had done more than recount legal history; he had offered a personal, often humorous, and deeply profound meditation on the struggle between power and principle. His use of the “scoreboard” was not a gimmick but a reflection of democracy’s constant negotiation: a reminder that even leaders as revered as Mandela were subject to the law, and that the Constitution remains the ultimate referee in the game of governance.

Through each case, the audience was reminded of the vital role of the judiciary, the strength of constitutional democracy, and the human spirit behind the robes and judgments. Sachs’ stories were not merely tales of law but testimonies of conscience.

  Learn more about the Albie Sachs Collection.

 Watch the full livestream of the lecture.