The Final Day
11 July 1996
The Court agreed to extend the hearings for a further day to ensure that everyone felt adequately heard. Several of the advocates who had appeared in previous days in this milestone case reiterated their objections to certification going ahead. They pointed to the many objections that had been lodged. The Constitutional Assembly (CA) legal team put forward their final arguments for why the draft text should not be sent back to the CA. They again offered a perspective on the philosophical questions around the ambiguities and difficulties of the Constitutional Principles. Each judge continued to engage individually with the issues in a manner that had created the lively and erudite style of debate throughout the entire case.
The state of emergency clause
The final stages of lengthy hearing ended in the words of Advocate Bizos, “with a mighty bang”. The emergency clause in the Constitution, which allowed a simple majority in Parliament to declare a state of emergency, was the last issue to be addressed. The judges felt the shadow of the past looming over the Court. There was no objector present and Advocate Bizos found himself in the unlikely position of having to defend the emergency clause. The irony of the situation was not lost on anyone, least of all Bizos himself. As a long-time human rights advocate, he had fought consistently for those persecuted under security and emergency legislation in the past. Bizos now had to face the indignation of the judges over issues such as inadmissible evidence, unfair trials and torture – all of which appeared possible under the emergency provision.
An animated argument ensued with Bizos “arguing a position that was the opposite of my instincts”. Justice Mohammed made a plea for caution: “We had it so often under apartheid; so many abuses. We must be particularly careful.” Justice Kriegler eventually tactfully suggested that the CA team put in a note on the issue so that the difficult matter could be brought to a close. With that magnanimous gesture, the case came to an end.
This is the end – or it ought to be – of a long and difficult process. There is a grave responsibility on this Court to see whether the front wheels of the plane are dead centre or whether, on landing, the fringes of the wings have gone over the limits.
The last words went to President Chaskalson. He thanked everyone who had participated and congratulated them for the great deal of thought that had gone into the preparation. “Now the Court has the very arduous task of discharging the mandate given to us under the Constitution,” he ended. After an exhausting eleven days of argument, the judges believed the hearing had gone extremely well. Justice Kriegler said:
Everyone who participated was manifestly deeply affected by this epoch-making event that we were participating in. People all rose to the occasion. The level of submissions was very high indeed. The quality of the contributions of the formerly invited spokespersons, NGOs, law professors were exceptional. Everyone was profoundly under the impression that we were doing something for the ages.
Because of how meticulously the President of the Court had planned the way we were going to carry out certification, how well Cyril had organised and controlled the whole constitution-making process. Once again, us South Africans disappointed the world by not cutting one another’s throats.