Justice Zak Yacoob
“We thought that law was a dialectical weapon. It was a sort of weapon which could be used either way. It could be used by them, and it could be used by us.”
Justice Zakeria Mohammed Yacoob practiced as an advocate during apartheid, while clandestinely assisting the underground movement of the African National Congress (ANC). He was appointed to the Constitutional Court in 1998 and is known for his forthrightness and deep commitment to fairness and equality.
Early Life and Career
Zak Yacoob was born on 3 March 1948. At the age of 16 months he became blind as a result of meningitis. Yacoob attended Durban’s Arthur Blaxall School for the Blind, and from 1967 to 1968 he studied for a BA at the University College, Durban, majoring in English and private law. He completed his LLB degree at the University of Durban-Westville in 1972. Yacoob was involved with many clubs and societies at university and helped to organise activities and negotiations that culminated in the first elected Students Representative Council.
He served his pupillage in Durban and the Natal Provincial Division of the Supreme Court admitted him as an advocate on 12 March 1973. He practised as a junior counsel until 1991. In this time, he also ran a significant and diverse commercial and general legal practice. Yacoob served as a member of the Society of Advocates of Natal for several years and took silk in May 1991.
It was a difficult environment to operate in. What made it easier for me was that I soon received instructions from the ANC that for my activities in the underground to not be discovered, it was very important that I create the impression of being a regular good lawyer … My first bail application was made in respect of a guy who had committed murder … And when I went to court there was this prosecutor, his name was Blom. He whispered in my ear, ‘Shall we say forty rand?’ I got a shock. I said, ‘What? For such a serious offence!’ He says, ‘No, man, let these kaffirs kill each other in the townships.’ I wanted to hit him. I wanted to create a huge big scene. The instruction from the ANC came to mind. It took me two seconds, and I just nodded quietly, paid forty rand and went away.
Yacoob was a member of the United Democratic Front’s (UDF) Natal executive. He was very involved in its campaign against the Tricameral Parliament from 1983 to 1985, whilst he remained a member of the ANC’s underground structures.
The trouble really was, how a law, specifically designed for the purposes of exploitation and oppression, could firstly be challenged at every level, and secondly, how such a law could be turned around somehow to be used in our favour.
What I learnt from that whole process [of working with the UDF] is how ordinary people know what they want and how they can be empowered to fight for what they want. I suppose that the dirty lesson I learnt is that it is also possible for opportunists to manipulate ordinary people into getting them to not know exactly what they want.
During the writing of the 1996 Constitution, Yacoob was a member of the Technical Committee on Fundamental Rights in the Constitutional Assembly. He was also a member of the Panel of Independent Experts of the Constitutional Assembly. In 2011, he was awarded an honorary doctorate by the University of KwaZulu-Natal. He served on the Independent Electoral Commission from December 1993 to June 1994.
The only thing I can remember about the election is that it was a lot of hard work. We had to set up structures and get a whole election done in four months. We had to make the vote real for many people. Those were the days when we worked eighteen/nineteen hours a day, more sometimes. Saturdays, Sundays. But it was a phenomenal experience, and it was emotionally wonderfully satisfying to do it.
Yacoob has been heavily involved in disability activism including through activities of the Natal Indian Blind and Deaf Society, and the South African National Council for the Blind.
Appointment to the Constitutional Court
Yacoob was appointed to the Constitutional Court by President Nelson Mandela in February 1998 after the death of John Didcott. Yacoob served on the Constitutional Court until his retirement in 2013.
Yacoob’s handwriting inspired the official font of the Constitutional Court which can be seen throughout the Court building. Because he is blind, his handwriting has a unique quality that the designers of the Constitutional Court’s font were drawn to.
I must say that after the interview, I wasn’t sure whether I was going to get the job. I wasn’t surprised that I was interviewed, and the interview had gone well. And the two months between the interview and the date of the announcement were the longest two months of my life.
Yacoob reflects on his time at the Court:
The important thing that I remember about this Court is how we can differ phenomenally and fundamentally, and how we can have very good … Not pretending (to be) good, but genuinely good interpersonal relationships, and how we could genuinely continue to respect each other. So this element of collegiality, which started when I was there, was absolutely wonderful for me.
I think disability is an extremely important factor, and I wonder when next we’ll have a person with disability in this (Constitutional) Court? One of the historic things about this Court is that it had two people on it with disability, for a period of eleven years.
Judgments of Interest
The Government of the Republic of South Africa v Grootboom (2000)
In this landmark case, Irene Grootboom and her community claimed that the state’s inaction around the provision of housing constituted an infringement of their right of access to housing guaranteed in section 26 of the Constitution. Her request to the Constitutional Court was to order the government to provide adequate basic temporary shelter or housing to them and their children pending their obtaining permanent accommodation.
In a judgment written by Justice Yacoob, the Constitutional Court found in favour of Grootboom and her community. It held that the state was obliged to take action to meet the needs of those living in extreme conditions of poverty, homelessness, or intolerable housing.
The Constitution obliges the state to act positively to ameliorate these conditions. The obligation is to provide access to housing, health-care, sufficient food and water, and social security to those unable to support themselves and their dependants. The state must also foster conditions to enable citizens to gain access to land on an equitable basis.
Abahlali baseMjondolo Movement SA v Premier of the province of KwaZulu-Natal (2009)
This case was a challenge to the constitutionality of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act, 2007 (The Slums Act) which allowed the municipality to forcibly evict people from land, violating provisions in the Constitution and other relevant legislation. Abahlali baseMjondolo claimed that the whole provincial Slums Act was invalid because the KwaZuluNatal legislature had no provincial power to make the law because it dealt with land tenure which is in a law making category reserved for the national legislature.
Justice Yacoob, on behalf of the Constitutional Court on the issue of legislative competence, held that the Slums Act was within the power of the province to pass laws on housing. He pointed out that the Slums Act is not concerned with evictions alone but with the elimination of slum conditions by upgrading and relocation of occupiers. He also pointed out that the Act placed detailed responsibilities on municipalities as well as the Member of the Executive Council responsible for housing in the province. The Court therefore held that the provincial legislature had the power to pass the provincial Act.
In my view, the lack of specificity and clarity in the Act gave rise to serious fears and concerns on the part of the applicants who were justified in starting these proceedings … The adjudication of this case was in the interests not only of the KwaZulu-Natal provincial government, but also in the public interest.
Life after the Constitutional Court
Since his retirement, Yacoob has continued to be an outspoken public advocate for the protection of human rights and the rule of law. He has served as president of the KZN Blind and Deaf Society. He has also been a member of the board of directors for both SECTION27 and the Socio-Economic Rights Institute of South Africa (SERI). To date he is the Chairperson of the SERI board of directors.
In 2015, Yacoob led an international panel of judges who presided over the International People’s Tribunal on 1965 Crimes Against Humanity in Indonesia. He was also a panellist on the People’s Tribunal on Economic Crime in South Africa which assessed evidence of the complicity of state and corporate entities relating to economic crimes during apartheid; the 1999 arms deal; and contemporary state capture.
Family and Personal Life
Yacoob married Anu, his university sweetheart, in 1970. Their children, a daughter and a son, have lived in Durban for most of their lives. His daughter, Seena Yacoob is a senior counsel who has also acted as a judge of the Land Claims Court.
In the words of others
Zac was very sussed and very sensitive, also laid back. He’ll notice things, deal with them in his own way, his own time. He won’t make it central, he won’t let it deviate him from his work.
I must say I was overwhelmed by the opportunity of meeting Justice Zak Yacoob … It was a phenomenal thing. I’d heard a lot about him and everybody spoke wonderfully well about him as a lawyer and as a blind person, and his achievements. As the year progressed, of course it became quite apparent that he works incredibly hard and he has a fascinating keenness for detail. No matter how much you read and how much you think you understand the issues, there’s always something that he would throw at you at a meeting about a case, and you just go, wow, why didn’t I think of that?
When I came to report for work I said, ‘Hello Judge’. He says, ‘No, no, no! From now on you call me Zak. You must never call me judge again.’ It was just difficult at first. Also with Zak, you don’t make appointments. You come to him at any time and call him at any time if you have a problem. More than being an employer, he was a father to me and we learnt a lot from him – not only work-related stuff. He would invite us for drinks at his place and advise us how to approach things and stuff. So I really, really enjoyed working for him.
One of Zak’s most admirable qualities is his ability to acknowledge his weaknesses and accept when he is wrong. This is, in my experience, not common for people of his stature. I witnessed this repeatedly both in the judgment writing process and even after he had put his name to a judgment. He also uses every public opportunity to admit he has struggled with overcoming his own internalised sexism and sexist attitudes, rightly condemning both his own behaviour and that of men in South African society for our disregard of the full equality of women.