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Drafting the South African constitution: an account by Justice Albie Sachs

06 November 2024 | Story Anthony Mthembu | Photo BORN2SHOOT

inaugural Albie Sachs Prestige Lecture 2024 — From the left (back row): Dean of the Faculty of Law, Prof Serges Kamga; Judge of the Supreme Court of Appeal, Justice Nolwazi Mabindla-Boqwana; Deputy Vice-Chancellor: Research and Internationalisation at the University of the Free State (UFS), Prof Vasu Reddy; Project Director of the Albie Collection and Chair of the Albie Sachs Trust (ASCAROL), Vanessa September; and acting Deputy Vice-Chancellor: Academic at the University of the Free State (UFS), Prof Philippe Burger. From the left (front row): Acting Vice-Chancellor of the University of the Free State (UFS), Prof Anthea Rhoda; Emeritus Constitutional Court Justice Albie Sachs; and Chief Justice of South Africa, Mandisa Maya.

The Faculty of Law at the University of the Free State (UFS) hosted the inaugural Albie Sachs Prestige Lecture on the UFS Bloemfontein Campus on 30 October 2024. The lecture – delivered by Emeritus Constitutional Court Justice Albie Sachs – was titled, ‘Who actually wrote the Constitution, and why they gave eleven unelected judges the power to strike down laws and actions of the democratically chosen parliament and president’?

In attendance at the lecture were Chief Justice of South Africa, Mandisa Maya; acting Vice-Chancellor of the UFS, Prof Anthea Rhoda; Judge of the Supreme Court of Appeal, Justice Nolwazi Mabindla-Boqwana; Senior State Advocate, Antoinette Ferreira; Project Director of the Albie Collection and Chair of the Albie Sachs Trust for Constitutionalism and the Rule of Law (ASCAROL), Vanessa September; as well as the Dean of the Faculty of Law, Prof Serges Kamga, among other high-profile guests.

In his opening address, Prof Kamga indicated that the lecture aimed to provide some responses to the core questions about the constitution and constitutionalism in South Africa. As such, Prof Rhoda echoed this sentiment, highlighting that, “when it comes to the events that preceded, surrounded, and followed the drafting and adoption of our country’s constitution, there are few commentators better placed than Judge Albie Sachs”.

The making of the constitution

As part of his lecture, Justice Sachs gave a detailed account of the making of the South African constitution. According to Justice Sachs, a total of 490 members of parliament came together to draft the constitution, which included members of the National Assembly and the Senate. These members had been mandated by 20 million South Africans who wanted a better future. As such, he described that moment as a “huge accomplishment on the part of the liberation movement”.

However, he highlighted that fulfilling this mandate was not an easy task, as it required an enormous amount of thought and mobilisation of legal technology to enable those in power at the time to surrender control of the army, police, and to some extent the economy and law-making, among other aspects. These negotiations resulted in a two-state process of constitution-making, which included the drafting of an interim constitution and the establishment of a parliament that would draft the final constitution.

Justice Sachs indicated that once the constitutional assembly sent the constitutional text to the constitutional court to ensure its compliance with agreed principles, it was found non-compliant in eleven respects, for which they had to find solutions in order for the constitution to be adopted.

As he concluded his address, Justice Sachs underscored his pride in having been involved in what he describes as a wonderfully rich story.

Forging a partnership

Subsequent to the address by Justice Sachs, the Faculty of Law and ASCAROL signed a Memorandum of Understanding (MoU), formalising the Albie Sachs Prestige Lecture as an annual event and allowing further collaboration. In fact, Prof Kamga highlighted that if Justice Sachs was not available to deliver a lecture, the trust would appoint someone in his place. To further solidify this partnership, the faculty was gifted with some of Justice Sachs’ works, including books and other materials, for its library.

Prof Rhoda expressed gratitude for this collaborative effort, saying, “We are grateful to have found such a partner in Justice Albie Sachs and the Albie Sachs Trust. May this relationship continue to blossom and bear fruit – to the benefit of our young leaders of tomorrow.”

News Archive

Faculty of Law establishes unique panel of advisors

2005-11-11

Photo: Stephen Collett

Some of the panel members who attended the Collegium Iurisprudentium of the Faculty of Law at the UFS were from the left His Honorable Judge of Appeal Lex Mpati (Vice-President of the Supreme Court of Appeal), His Honorable Judge of Appeal Joos Hefer (former Chief Justice of South Africa), His Honorable Judge of Appeal Frits Brand (Supreme Court of Appeal) and Mrs Alet Ellis (lecturer at the UFS Faculty of Law).

At the back from left were Prof Johan Henning (Dean: Faculty of Law at the UFS), His Honorable Judge Faan Hancke (High Court of the Free State and chairperson of the UFS Council) and Adv Jannie Lubbe Sc.

The Faculty of Law at the University of the Free State (UFS) has established a panel of advisors comprising of all the honorary and extraordinary professors of the faculty.

“The faculty has been known for its excellent practice-orientated training as well as the involvement of law practitioners in the training of LL B-students,” said Prof Johan Henning, Dean of the Faculty of Law at the UFS.

“The faculty was greatly dependent on the services of advocate lecturers, full-time members of the Bar and Side Bar who lectured on a part-time basis at the faculty. For this reason lecturing in the faculty was mainly done after-hours to part-time students,” said Prof Henning.

With the shift in emphasis to full-time lecturing and the appointment of full-time lecturers, especially because of the increasing student numbers, the full-time LL B-programme and the increasing pressure on students for quality research inputs, a greater need for meaningful contributions of judges and senior law practitioners to the faculty was experienced.

“To comply with this urgent need, three honorary professors and nine extraordinary professors were appointed. This group of experts deliver an indispensable contribution to the practice orientation of the faculty by means of formal lectures, public inaugural lectures and guest lectures, direct lectures to graduate and post-graduate students, participation in research projects and the constant evaluation of lecturers, modules and the content of modules and learning material. The international exposure of students and lecturers is also promoted by their contribution,” said Prof Henning.
“A need to have the involvement of this special class of professors structured in a more organised way was identified and a decision was made to establish an advisory panel called Collegium Iurisprudentium. It is a privilege to us that all the honorary and extraordinary professors accepted the invitation,” said Prof Henning.

The panel will provide the faculty with continuous, distinguished, practice- orientated capability and capacity as well as international expertise, not only for direct inputs to students but also to advise lecturers about the curriculum, the compilation of the content of the LL B and M module, learning material and others, as well as to strengthen the research capacity of the faculty.

“The panel will also deliver a decisive contribution to the faculty’s preparation for the constitutional audit of the Higher Education Quality Committee (HEQC) of the Council for Higher Education (CHE) that will take place in October 2006,” said Prof Henning.

The Collegium Iurisprudentium, which has been formally constituted, comprises of:

Appeal Court Judge J J F Hefer,
Appeal Court Judge L Mpati
Appeal Court Judge F D J Brand
Appeal Court Judge I G Farlam
Prof B A K Rider
Judge S P B Hancke
Judge A Kruger
Judge D H van Zyl
Adv S J Naudé
Adv J Lubbe Sc
Prof M M Katz
Prof R J Cook
Mr S van de Merwe
Mr W van der Westhuizen
Mr D C M Gihwala

Media release
Issued by:Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za
11 November 2005

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