Justice Thembile Skweyiya
“Ultimately, my message is that we ought to be not only more attentive and receptive to the African voice when we conduct our comparative constitutional interpretation, but also more conscious of our responsibility to strengthen that voice in our judgments from which the rest of the continent and even the world may find assistance.”
Anti-apartheid activist, advocate, and judge of the High Court, Justice Thembile Lewis Skweyiya was often involved in human rights and civil liberties cases during his time as a law practitioner. He was appointed as a justice on the Constitutional Court in 2003, and contributed to key judgments around the rights of children, same-sex couples, evictions, and the media’s right to freedom of expression.
Early Life and Career
Thembile Skweyiya was born in Worcester in the Western Cape on 17 June 1939 and he matriculated at the historic Healdtown Comprehensive School in the Eastern Cape town of Fort Beaufort in 1959. He was awarded a Bachelor of Social Science degree by the University of Natal in 1963 and an LLB by the same university in 1967.
Skweyiya was admitted as an advocate of the Supreme Court of South Africa in 1970 and became a member of the Society of Advocates in Natal. From 1971 to 1996 he practised as an advocate in Durban where he dealt almost exclusively in commercial and civil matters. From the end of 1979, however, Skweyiya’s work became more varied and he began handling cases not only in Durban, but in all Supreme Court divisions in Southern Africa. Skweyiya was admitted as an advocate of the High Court of Lesotho in 1974.
From 1981, the bulk of his work involved human rights and civil liberties cases, including many political trials all over South Africa. His cases also involved the rights of detainees, workers and trade-union officials,and he conducted inquests into the deaths of people in detention.
Regardless of your chosen career path (be it in the corporate legal field or public interest law), each of us has an obligation to further the ideals of establishing a just, equitable society based on democratic values, social justice, and respect for fundamental human rights.
In 1989, he was the first black advocate to attain silk and was admitted to the Bar in various jurisdictions. In 1992, the High Court of Namibia admitted him as senior counsel. Between October 1995 and January 2001 Skweyiya acted as a High Court Judge in the Natal and Eastern Cape divisions for various periods, and took up a permanent appointment on 1 February 2001.
Appointment to the Constitutional Court
Skweyiya was appointed as a judge to the Constitutional Court in 2003. He served until his retirement in 2014.
To be a lawyer in South Africa today you must act with integrity, and in doing so you will ensure that the judiciary remains independent and that the rule of law remains … it means that you are committed to this ideal – that you will play your part in creating a democratic society where every person can realise the rights protected in the Bill of Rights.
Judgments of Interest
Joseph and Others v City of Johannesburg and Others (2009)
The applicants were all tenants in a block of flats in Johannesburg owned and let by Thomas Nel. The applicants paid their electricity bills to Nel as part of their rent accounts, and had kept up with their electricity payments at the time of the disconnection. Nel was contracted with the second respondent, City Power, for the supply of electricity to the building and had accumulated arrears of approximately R400 000. As a result, on 8 July 2008, the electricity supply to the block of flats was disconnected by City Power. The tenants received no prior notice of the disconnection. They had been living without electricity for some 12 months and continued to live in Ennerdale Mansions because they could not afford to leave.
Justice Skweyiya, writing for a unanimous Court, held that when City Power supplied electricity to Ennerdale Mansions, it did so in fulfilment of the constitutional and statutory duties of local government to provide basic municipal services to all persons living in the City. When the applicants received electricity, they did so by their corresponding public law right to receive this basic municipal service. Accordingly, in depriving them of a service that they were already receiving as a matter of right, City Power was obliged to afford them procedural fairness before taking a decision which would materially and adversely affect that right.
The central mandate of local government is to develop a service delivery capacity in order to meet the basic needs of all inhabitants of South Africa, irrespective of whether or not they have a contractual relationship with the relevant public service provider. Electricity is one of the most common and important basic municipal services and has become virtually indispensable, particularly in urban society.
Le Roux and others v Dey (2009)
The applicants, then schoolchildren, created an image in which the face of Dr. Dey, then a deputy principal of their school, was superimposed alongside that of the school principal on an image of two naked men sitting in a sexually suggestive posture. The school crests were superimposed over the genital areas of the two men.
Dr. Dey instituted action in the High Court against the students based on two claims – defamation and injury to his feelings. The High Court upheld both claims, and granted an award of R45 000 in damages. The matter went to the Supreme Court of Appeal which upheld the defamation claim but found that the claim based on affront to dignity was ill-founded and required no further consideration. The students appealed the matter to the Constitutional Court.
The majority of the Court affirmed the finding of the majority of the Supreme Court of Appeal that the image was defamatory of Dr. Dey. Justice Skweyiya wrote a separate judgment, dissenting from the majority, which was praised for its focus on protecting children.
Children are treated differently in our legal and social structures. In effect, we seek to create different ‘worlds’ for our children in an effort to protect them, to help them develop, and to give them a forum to make mistakes and then learn from these mistakes … We give children a measure of leeway, and in many instances hold them to a lower standard of account, as we accept that they lack the emotional maturity and wisdom to clearly distinguish right from wrong.
Although in appropriate cases children may be held criminally and civilly liable, in my view it is unnecessary in this case for the children to be subjected to litigious court proceedings as well. In addition to my concern about the potential treble-punishment that the learners will face, I also have grave doubts regarding the efficacy of monetary awards being made against children.
Life after the Constitutional Court
Skweyiya was appointed as Inspecting Judge for Correctional Services.
Family and Personal Life
Skweyiya was married to Sayo Nomakhosi and they had four children together. He died on 1 September 2015.
In The Words of Others
He put lives and the plight of his fellow countrymen above his personal interests.
He was one of the African pioneers in the legal profession and became the first African to be conferred with the silk status (Senior Counsel) in 1989 … As counsel specialising in commercial law, Justice Skweyiya could have settled for a more lucrative practice in commercial law. But his passion for justice and freedom resulted in the bulk of his practice being dedicated to cases associated with civil liberties and human rights … His enormous contribution to the development of our jurisprudence is known and appreciated worldwide.
As a young African law student who knew how difficult it was for a black person to acquire a law degree, I drew a lot of inspiration from the very fact that Bhuti (Skweyiya) was a lawyer, and especially that he appeared in the Supreme Court and was thus permitted to engage in serious intellectual wrestling matches with his white counterparts before the judges.
Throughout his life, he was a true embodiment of fairness, humility, integrity, dedication and professionalism. South Africa will be a better place if we, as citizens of this country and public office-bearers, can emulate these outstanding attributes and values that guided his life.
As a judge he manifested the qualities of integrity, impeccable honesty, a keen intellect and decorum which underpins the esteem, status and dignity of our Courts; the modesty of his person and his abiding courtesy were his renowned attributes. He practised his craft at a level to which his colleagues aspired to.