Of soft vengeance and laughter

• Author: Julian Jonker
• DOI: 10.10520/EJC153251
• Published date: 01 January 2010
• Date: 01 January 2010
• Pages: 137-151

*

LLB MPhil. Lecturer, Department of Private Law, University of Cape Town.

1

Sachs The strange alchemy of life and law (1990) 4.

2

Sachs The soft vengeance of a freedom fighter (2000).

3

Section 1(a) of the Constitution of the Republic of South Africa, 1996.

4

S v Makwanyane 1995 3 SA 391 (CC) paras 144, 328-329; Ferreira v Levin NO; Vryenhoek v

Powell NO 1996 1 SA 984 (CC) paras 47-49; Barnard-Naudé, Cornell and Du Bois (eds) Dignity,

freedom and the post-apartheid legal order (2009).

5

Sachs (n 1) 213.

6

Id 5, 125-139.

Of soft vengeance and laughter

Julian Jonker

*

We celebrate the judicial career of Justice Albie Sachs. However, we would do

well to remember his other careers – as lawyer, freedom fighter, writer, scholar

– and to understand how these experiences shape the identity that has left such

a unique imprint upon South African justice. Justice Sachs has himself taken note

of the existence of ‘a fascinating and not very obvious chemistry between [his]

non-judicial experiences and [his] decision-making as a judge’.

1

For example,

after losing his arm to a car bomb, Sachs spoke of the ‘soft vengeance’ he would

mete out on his oppressors: subjecting them to a regime of human rights for all.

2

Once he had reached the bench, his own experience of captivity and torture was

sublimated into support for the right to a fair trial, and respect for dignity as a

foundational value of the new South Africa.

Surprisingly, the strange alchemy that exists between the non-judicial

experiences and the judicial career of Justice Sachs gives a central role to

laughter. This is surprising because so often laughter seems to exist at the

expense of dignity, or at least to threaten it. Such a threat should not be taken

lightly, for dignity is indeed a founding value of the democratic South Africa

3

and

has been given a central role in our constitutional jurisprudence as both a right

and an underlying value.

4

Justice Sachs too, in his recent memoir of his judicial

career, refers to respect for dignity as ‘the unifying constitutional principle’ in a

society such as our own.

5

Yet in the same book Sachs also allocates a place for

laughter.

6

How is it possible for laughter to co-exist with the weightiness of

jurisprudence dealing with dignity, and the seriousness of the suffering which the

Constitutional Court is so often asked to alleviate?