Justice Arthur Chaskalson
“What each of you does with his or her life is important not only to yourselves but to the whole community. I urge you not to be afraid … To use your energy and skills to help create a new and better society.”
Justice Arthur Chaskalson was the first Chief Justice of the Constitutional Court. Over the course of his towering legal career, he was an advocate, co-founder of the Legal Resources Centre, and then a jurist. He is known for being a member of the legal defence team during the Rivonia Trial, and legally defending many prominent anti-apartheid activists. He was an expert advisor to the Namibian Constitutional Assembly and the South African Multi-Party Negotiation Process (MPNP). He served as the first Judge President of the new Constitutional Court between 1994 and 2001, before the title changed to Chief Justice. He retired from the bench in 2005 and went on to become the President of the International Commission of Jurists from 2004 to 2008.
Early Life and Career
Arthur Chaskalson was born on 24 November 1931 in Johannesburg. His parents were Lithuanian Jews who owned a successful mattress company. When he was four, his father died from a heart attack, and for most of his early childhood he was raised by a single mother.
He always knew that he wanted to be a lawyer, and enrolled at the University of the Witwatersrand in 1949 to study a BCom Law. He received his LLB with distinction. Throughout his schooling and university careers Chaskalson was an avid sportsman. He excelled in football, cricket, and tennis. His opponents and family knew him as a ‘notorious sledger’ on the tennis court. While studying, he befriended other students who would become anti-apartheid lawyers and life-long friends: George Bizos, Joel Joffe, and Denis Kuny. Although not a member of a political organisation, in 1953 Chaskalson spoke out regarding the prohibition on black students from attending the annual Bar dinner. It was during his university years that he cemented his view that there was a difference between law and justice, and that apartheid was using the law to oppress the majority of the country.
After studying, Chaskalson completed his legal articles at Deneys Reitz in Johannesburg focusing on insurance and contract law. After his articles, Chaskalson went immediately to the Bar to become an advocate in 1956. Chaskalson served as a leader at the Bar, acting as a member of the Bar Council between 1967 and 1971, after which he took silk and became a senior advocate. He served again on the Bar Council between 1973 and 1984.
The Johannesburg Bar, though part of the white establishment, was, however, never seen as a bastion of apartheid. It retained a concern for the rule of law, protested against some of the worst laws that were passed, supported members who defended those charged with political offences, and was viewed with suspicion by those who ruled the state.
Chaskalson participated in many political cases during his time as an advocate. Along with Bram Fischer, Joel Joffe, George Bizos, and Vernon Berrangé, Chaskalson was a member of the defence team for the Rivonia Trialists between 1963 and 1964. Chaskalson was involved with cases pertaining to censorship, defamation, and police torture.
In 1979, he co-founded the Legal Resources Centre with Felicia Kentridge, a non-profit social justice organisation established to challenge apartheid laws and defend justice and human rights. Chaskalson was the Centre’s director from 1979 to 1993, and successfully argued the Rikhoto and Komani cases which played an important part in bringing down the apartheid system of influx control or “pass laws”.
After the South African apartheid government was forced to give up control of Namibia in 1988, Chaskalson was asked to advise the Namibian Constituent Assembly regarding the drafting of the country’s new, democratic Constitution.
Between 1990 and 1994, Chaskalson consulted to the ANC on constitutional issues during negotiations, and served as a member of the Technical Committee on constitutional issues during the Multi-party Negotiation Process.
Apartheid cannot simply be brushed aside as an aberration of the past with no relevance to the present or the future. It was an ideology which institutionalised racism and impinged on all aspects of life in South Africa … The challenge facing us as a nation is to develop our country and its human and material resources to make the achievement of the goals [in the Interim Constitution] possible. We have started the process. But we have a long way to go.
Appointment to the Constitutional Court
You do not buy constitutions off the shelf on the basis that one size fits all. Constitutions freely adopted are shaped by history, by the struggles out of which the Constitution was born, and by the nation’s aspirations for the future. It has often been said that a Constitution is the soul of a nation.
In 1994, President Nelson Mandela appointed Chaskalson as the first President of the new Constitutional Court. He served as Judge President until 2001 when the title changed to Chief Justice, and served in that position until his retirement in 2005. As Judge President, Chaskalson swore in President Thabo Mbeki at his inauguration in 1999.
It is difficult to describe the reality of what has happened during the past few months. The atmosphere within the country is quite different. There is a new spirit abroad, a sense of renewal and a growing confidence that it will be possible to transform our society. The challenge for us is to capture the spirit of the time, and build upon it … There are obvious difficulties which lie ahead. We need to restore respect for law; we need to meet the basic needs of the people of the country; and we need to bring into the process those who have not yet accepted the change. The difficulties are real, but they are not beyond our reach.
Judgments of Interest
S v Makwanyane (1995)
The case dealt with the constitutional validity of the death penalty and whether it was compatible with the right to life clause. The Court found that the death penalty was not compatible with the right to life clause in the Constitution and was therefore unconstitutional. This was the first case heard by the Constitutional Court. In his judgment Chief Justice Chaskalson had this to say:
In the ordinary meaning of the words, the death sentence is undoubtedly a cruel punishment. Once sentenced, the prisoner waits on death row in the company of other prisoners under sentence of death … Throughout this period, those who remain on death row are uncertain of their fate, not knowing whether they will ultimately be reprieved or taken to the gallows. It is also an inhumane punishment for it involves, by its very nature, a denial of the executed person’s humanity, and it is degrading because it strips the convicted person of all dignity and treats him or her as an object to be eliminated by the state.
Life after the Constitutional Court
After his retirement, Chaskalson acted as President of the International Commission of Jurists between 2004 and 2008. Throughout his career as an advocate and judge, Chaskalson was a guest lecturer specialising in Human Rights and Constitutional Law at various universities.
Family and Personal Life
Chaskalson was married to Dr Lorraine Chaskalson (nee Ginsberg) for fifty-two years. They had two children, Matthew and Jerome, who are both now lawyers. Chaskalson has five grandchildren. Over the course of their life together, Arthur and Lorraine adopted more than thirty cats. Some stand-out cat names include Turnip, Purdy, Zazu, and Lettuce. He passed away on 1 December 2012.
What it was like to know him
I think Arthur was a unique first President and subsequently Chief Justice of the Court, given the time of his appointment. He was one of a really very small handful of very distinguished white lawyers who had the trust of all shades of the political spectrum. So therefore I think his credibility was enormous, and he built up consensus through discussion … And I think that he led by example in exploring openly and completely honestly the divergent view.
Long before assuming office of Chief Justice of South Africa, Chaskalson worked hard to lay the foundation for a South Africa that would truly belong to all who live in it, united in our diversity. He dedicated his professional life to the defence of those who were regarded as sub-human … He and his colleagues worked tirelessly, using the laws of the day, however deficient, to try to protect the rights of the poor and oppressed.
Chaskalson’s lifelong work is a testimony to his belief in the inherent dignity of all people … Because of his refusal to give up when some of the best among us lost hope in the promise of a better future, he served as one of the experts that assisted in drafting our Constitution … [He] worked with distinction to restore credibility of a judiciary that had been totally discredited in the eyes of the majority, during the apartheid years.
Chaskalson listened to all. He was not only a leader to his colleagues, he was a supporter as well, and was always available to lend a helping hand. Today, the Constitutional Court stands as a shining and exemplary achievement of this country. And for Chaskalson, it is indeed a shining and indelible memorial. He played a very central part in helping to develop constitutionalism in South Africa. He was praised for his role in developing the constitutional foundations of the new South Africa.
He is just utterly brilliant … What I most loved about it is he would come through and he’d be reading the case, preparing for a hearing and he’d come through and say, ‘well, isn’t this really just a form of process in aid?’ And I would now have to understand the question, give an answer, engage in the debate, and the next day I would see counsel struggling with exactly the same question that he’d put to me. And it was wonderful to have him test out those questions on me and test his theories and his views … He predictably was very hands-on in the writing of his own judgments, but we were always, not only welcomed, but required to comment in detail on his drafts.