Strange Alchemy of Life and Law by Sachs Albie;

Author:Sachs, Albie;
Language: eng
Format: epub
Publisher: Oxford University Press
Published: 2009-04-13T04:00:00+00:00

SACHS J:

Fairness to an incumbent about to be relieved of a high profile position in public life presupposes the display of appropriate concern for the reputational consequences. People live not by bread alone; indeed in the case of career functionaries, reputation and bread are often inseparable. [And it] was not only the material benefits and the standing of the incumbent that had to be considered. The general public too had an interest. Constitutionally-created institutions need constantly to be nurtured if they are to function well. This requires that those who exercise public power should avoid wherever possible acting in a manner which may unduly disturb public confidence in the integrity of the incumbents of these institutions.

[F]air dealing and civility cannot be separated. Civility in a constitutional sense involves more than just courtesy or good manners. It is one of the binding elements of a constitutional democracy. It presupposes tolerance for those with whom one disagrees and respect for the dignity of those with whom one is in dispute. Civility, closely linked to ubuntubotho, is deeply rooted in traditional culture, and has been widely supported as a precondition for the good functioning of contemporary democratic societies. Indeed, it was civilized dialogue in extremely difficult conditions that was the foundation of our peaceful constitutional revolution. The Constitution that emerged therefore presupposes that public power will be exercised in a manner that is not arbitrary and not unduly disrespectful of the dignity of those adversely affected by the exercise.

The Lawrence Case

When deciding whether a ban on the sale of liquor on Sundays, Christmas and Good Friday violated the right to freedom of religion, four members of the Court felt that freedom of religion was not infringed. Three others held that it was violated because the religious holidays of Christianity alone were being respected. My mind was eventually made up in a most unusual way: by seeing a hurt look on the face of my law clerk, Fatima. When I asked her what the frown was about, she pointed out that what appeared to be trivial could be deeply injurious when it formed part of a wider pattern of exclusion. So I wrote a separate judgment, supported by a colleague, holding that the state was indeed limiting religious freedom by endorsing a particular religion, however trifling the endorsement might seem. On the facts of the case, however, I held that the limitation was justifiable for achieving the meritorious secular objective of cutting down on alcohol abuse on double days of rest.

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