Judge Ackermann and the Jurisprudence of Mourning

• Jurisdiction: South Africa
• Citation: 2008 Acta Juridica 219
• Published date: 15 August 2019
• Pages: 219-238
• Date: 15 August 2019

Judge Ackermann and the Jurisprudence

of Mourning

DENNIS M DAVIS*

Cape High Court

When the great Israel Baal Shem Tov saw misfortune threatening the Jews, it

was his custom to go into a certain part of the forest to meditate. There he

would light a f‌ire, say a special prayer, and the miracle would be accomplished

and the misfortune averted.

Later when his disciple, the celebrated Maggid of Mezeritch, had occasion,

for the same reason, to intercede with heaven, he would go to the same place

in the forest and say: ‘‘Master of the Universe, listen! I do not know how to

light the f‌ire, but I am still able to say the prayer.’’ And again the miracle

would be accomplished.

Still later, Moshe-Leib of Sassov, in order to save his people once more,

would go into the forest and say: ‘‘I do not know the prayer, but I know the

place and this must be suff‌icient.’’ It was suff‌icient and the miracle was

accomplished.

Then it fell to Israel of Rizhin to overcome misfortune. Sitting in his

armchair, his head in his hands, he spoke to God: ‘‘Iam unable to light the f‌ire

and I do not know the prayer; I cannot even f‌ind the place in the forest. All I

can do is tell the story, and this must be suff‌icient.’’And it was suff‌icient.

It no longer is. The proof is that the threat has not been averted. Perhaps we are no

longer able to tell the story. Could all of us be guilty? Even the survivors? Especially the

survivors?’

1

I INTRODUCTION

Gillian Rose uses the above midrash – which is derived from the work of

Martin Buber and Elie Wiesel – to address the challenges confronting

survivors. Rose contends that survivors would be guilty if they remained

‘self-def‌ined solely as survivors; guilty’ because they would be f‌ixed in ‘a

counter–identif‌ication’:

2

To survive – to live again – demands a new tale: a new prayer to be found, a

new polity to be founded. It demands a willingness to participate in power

and its legitimate violence for the sake of the good.

3

I wish to employ this use of midrash by Rose to interrogate the

concept of transformation of the South African legal system and the

* Judge of the High Court, Cape of Good Hope Provincial Division.

1

G Rose Mourning Becomes the Law (1996) at 99–100.

2

Ibid at 100.

3

Ibid.

219

2008 Acta Juridica 219

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manner in which the concept has been implemented in the early

jurisprudence of the Constitutional Court. It is in these early develop-

ments of constitutional jurisprudence that Judge Ackermann played a

critical role.

This paper focuses on the manner, in which the Constitutional Court,

in its early jurisprudence, set the foundations for the ‘transformative’

development of South African private law. The body of private law

which was inherited from apartheid eschewed any recourse to the

concepts adopted in public law. Private lawyers were generally con-

cerned with purity of concept rather than an interrogation of the power

relationships which were ref‌lected, reinforced and reproduced through

those arrangements underpinned by private law. The Constitution

4

promised an end to this insulation of private arrangements sanctioned by

law from judicial scrutiny.

5

These developments posed the possibility of a

public meaning for private law; hence, how did the Court answer this

question? Before engaging in this investigation, it is necessary to refer,

albeit brief‌ly, to the conceptual framework of adjudication which was

inherited by the post-apartheid judiciary when constitutional democracy

dawned in 1994.

The conventional narrative about the South African judiciary was that

a liberal bench dominated South African jurisprudence until the mid

1950’s. It was then replaced by a pro-executive judiciary which deferred

with great jurisprudential gusto to the policies developed by the National

Party after its 1948 electoral victory. Of course, the earlier ‘liberal’

tradition was not entirely obliterated. It lived on in the judgments of a

small group of exceptionally courageous and principled judges. But the

hegemony was enjoyed by the executive-minded, so carefully appointed

by the government.

Expressed in its most elegant form, this clash of approaches to

adjudication was constituted between common-law judges who sought

to preserve the liberal values which justif‌ied the nature of the common

law and plain-fact judges who gave as wide a latitude to the output of

Parliament as was legally possible.

6

For this latter group of judges, it was

the law as it exists in fact which was determinative of their task to apply

the law. The ultimate source of law-as-fact was Parliament. By contrast,

those judges, who throughout the apartheid era strove to protect civil

liberties and the rule of law against an arbitrary and capricious legal

system introduced by the National Party, viewed law as not merely a

4

Constitution of the Republic of South Africa, 1996.

5

In particular see ss 8 and 39(2) of the Constitution .

6

The most penetrating scholarship in this f‌ield is by D Dyzenhaus Hard Cases in Wicked

Legal Systems: South African Law in the Perspective of Legal Philosophy (1991). See also D

Dyzenhaus ‘The disappearance of law’ (1990)107 SALJ 227.

220 DIGNITY,FREEDOM AND THE POST-APARTHEID LEGAL ORDER

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