3 September 2015 – On his retirement from the Constitutional Court bench in 2014, Justice Thembile Lewis Skweyiya was lauded for his extraordinary career and contributions as a human rights activist and lawyer. It feels all too soon that we must pay our ultimate tribute to this humanitarian jurist and gentle giant of the liberation struggle.
Skweyiya was admitted as an advocate in 1970, and from the 1980s dedicated his Durban-based practice to defending political activists and combatants in the liberation struggle. Recognising the complicity of the courts in the architecture of apartheid, Skweyiya saw his role as “waging a different style of struggle”. He explained that “working through this corrupt and unjust judicial system, we tried to secure some basic human rights for combatants and other political activists held in detention. We met with much failure but occasionally we would come up with creative and innovative ways to make inroads into the repression of the apartheid regime”. As counsel he represented, amongst others, Griffiths Mxenge, Oscar Mpetha, Sibusiso Zondo, Zephaniah Mothopeng, and the incumbent Minister in the Presidency, Jeff Radebe. His pupils (trainees) at the Bar included the former Chief Justice Pius Langa.
In 1989, Skweyiya became the first black South African to be conferred silk in the country – a pitiful but nevertheless extraordinary accolade. In 1991, Skweyiya headed the ANC’s internal Commission of Enquiry into Complaints by Former ANC Prisoners and Detainees in the ANC’s detention camps. The Skweyiya Commission documented repeated violations of human rights, and premised its recommendations on the principles of redress, accountability and prevention. The Commission insisted that –
“it is not only the families and friends of victims who are entitled to be told the truth. The violation of human rights is a matter of both national and international concern. The proper investigation and exposure of human rights violations is therefore an obligation which, in our view, cannot be evaded. This obligation applies to all, including the State. At a time when there are serious allegations of abuse perpetuated by high-ranking State officials, we believe that the ANC could set an example by initiating its own investigation into the allegations of disappearance and death. This could, in our view, signify a new direction for the protection of human rights in South Africa.”
The Skweyiya Commission called for the compensation of all those who suffered maltreatment in detention, without distinction between those who were and were not South African agents. “We cannot countenance any distinction of this sort when it comes to the humane treatment of detainees”, it said.
After the democratic transition, Skweyiya became a judge “by default”, as he modestly put it. Justice Skweyiya never could resist the call of public service – a fact demonstrated by his post-retirement appointment in 2015 as the Inspecting Judge of Prisons.
Skweyiya was appointed to the High Court in KwaZulu-Natal in 2001, and began acting on the Constitutional Court bench that same year. He was permanently appointed to the Constitutional Court in 2003 until his retirement in April 2014. As a jurist, Skweyiya’s writings show his overriding concern to promote “a caring constitutional democracy” (a phrase he used in C v Department of Health and Social Development, Gauteng).
At his interview with the Judicial Service Commission for appointment to the Constitutional Court, Skweyiya insisted: “you can have the best Constitution but if you have someone with a hungry stomach, someone who has no home, and someone who can’t go to hospital and be attended to, it is a meaningless document”.
Justice Skweyiya’s empathy appears most strikingly from his judgments on children’s rights, on which he wrote extensively and regarded of especial importance.
In C, Justice Skweyiya forcefully reasoned that the protection of children’s rights required the Children’s Court automatically to review any decisions by social workers or police officers to remove a child from home and place her in temporary safe care. Skweyiya stated emphatically that:
“ The coercive removal of a child from her or his home environment is undoubtedly a deeply invasive and disruptive measure. Uninvited intervention by the State into the private sphere of family life threatens to rupture the integrity and continuity of family relations, and even to disgrace the dignity of the family, both parents and children, in their own esteem as well as in the eyes of their community.
 Children’s rights, and the rights relating to family life, bear tremendous importance in a caring constitutional democracy. It is for this reason that —
‘section 28 requires the law to make best efforts to avoid, where possible, any breakdown of family life or parental care that may threaten to put children at increased risk. Similarly, in situations where rupture of the family becomes inevitable, the State is obliged to minimise the consequent negative effect on children as far as it can.’
In Le Roux v Dey, which concerned a civil claim for defamation against three school children, Justice Skweyiya wrote a separate dissenting judgment to express his concern over civil claims targeted directly at children, arising from a prank committed in the school environment. Skweyiya wrote:
 This is a case concerning children. In and amongst all the other considerations relevant to this matter, this is the inescapable and overarching fact of this case. … I do not intend to traverse the legal issues pertinent to claims of defamation or an infringement of dignity, as these have already been eloquently and comprehensively addressed in the other judgments. Instead, my remarks are limited to the relevance of the consideration that the challenged conduct was committed by children, and the emphasis that should be placed on this aspect.
 It is a well-recognised principle of our law that adjudication must occur within context. In my view, this is all the more important when there are children concerned. The applicants, to whom I refer as the learners, were all under the age of 18 years at the pertinent time. Their actions were directed at the principal and the deputy principal of the school, although only the deputy principal, Dr Dey, has opted to litigate against the learners.
 The principal and deputy principal represent the two most senior figures of authority at the school; to my mind, this is one of the most relevant considerations in this matter, and immediately changes the nature of the action to little more than a school prank. Regardless of whether we believe it to be right or wrong, one element that is often present in the school environment is rebellion against authority. That is how I would categorise this…
 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. One is not hard-pressed to find examples of ways in which we treat children differently, or offer them greater protection. 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 when there is a grey area. In my view, the facts of this case present such a grey area…
 I do not condone what the learners did, and I certainly would not suggest that the learners should not be punished for their actions. It is important that children are made to face the consequences of their actions — how else can we expect them to learn? — but this must be done in a manner that is commensurate with the alleged offence. A judicial officer would be remiss if consideration were not properly given to the effect of one’s decision on the rights of the child…
 A school environment is not just one of academic study; it is also a place for growth and development. We institutionalise the learning environment in an effort to guarantee that, regardless of social circumstances, every child has the opportunity to mature emotionally and intellectually. In our efforts to teach right from wrong, we also want to encourage freedom of speech amongst our children, and we certainly do not want to instil in them fear of the law or the legal process. Measures are put in place, within the learning environment, to ensure that when children transgress the rules they will be appropriately and commensurately dealt with. 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….”
Justice Skweyiya’s last judgment, J v National Director of Public Prosecutions, addressed the compulsory registration of child offenders for sex offences on the National Register for Sex Offenders. Writing for a unanimous Court, Justice Skweyiya found that such a legislative requirement unjustifiably limited the child offender’s rights. He again underscored the nurturing and reformative aims of the law and society where children are concerned, and the importance of this approach for “the shared dignity of the broader community for years to come”. Justice Skweyiya wrote:
“ The contemporary foundations of children’s rights and the best-interests principle encapsulate the idea that the child is a developing being, capable of change and in need of appropriate nurturing to enable her to determine herself to the fullest extent and to develop her moral compass. This Court has emphasised the developmental impetus of the best-interests principle in securing children’s right to “learn as they grow how they should conduct themselves and make choices in the wide and moral world of adulthood.” In the context of criminal justice, the Child Justice Act affirms the moral malleability or reformability of the child offender.”
 Child offenders who have served their sentences will remain tarred with the sanction of exclusion from areas of life and livelihood that may be formative of their personal dignity, family life, and abilities to pursue a living. An important factor in realising the reformative aims of child justice is for child offenders to be afforded an appropriate opportunity to be reintegrated into society. Furthermore, it is undoubted that there is a stigma attached to being listed on the Register even if the Sexual Offences Act closely guards the confidentiality of its contents. Given that a child’s moral landscape is still capable of being shaped, the compulsory registration of the child sex offender in all circumstances is an infringement of the best-interests principle.
“ The importance of the best-interests principle cannot be gainsaid, particularly when, as here, one is dealing with children exposed to the criminal justice system. How we treat and nurture our children today, including child offenders, impacts the shared dignity of the broader community for years to come….”
Justice Skweyiya also wrote important judgments for the Court on administrative law, the rule of law, and freedom of the media. To name a few, his judgment in Joseph remains leading authority on procedural fairness; his judgment in Print Media significantly affirmed that “the free flow of constitutionally protected expression is the rule and administrative prior classification should be the exception”; and his judgment in Khumalo v MEC for Education: KwaZulu Natal addressed the rule of law obligations on the State to seek judicial review of unlawful decisions.
Notwithstanding his allegiance to the ANC, Skweyiya was a fierce defender of the courts. Speaking to students at the University of Fort Hare in 2012, Skweyiya said – in a statement that sadly could just as well have been made today, and which bears repeating:
“In recent months, however, our constitutional scheme—and in particular the courts—has been the subject of alarming criticism and attack overtly and impliedly from within. What justifies the cause for concern is that these comments smack of a fundamental misunderstanding of the kind of democratic model that we, as a nation, endorsed when agreeing upon the 34 Constitutional Principles on which our Final Constitution is based, and ultimately in adopting that document as the fundamental law on which our democracy stands. It is vital, therefore, that we disabuse ourselves thoroughly of any misconceptions, that we make clear and unmistakable the nature of our South African democracy, as our jurisprudence has done and will continue to do, and that we propagate this knowledge among all generations now and into the future, in order that all people may know the true fruits of their struggle, as embodied in their Constitution”.
Adv. Janice Bleazard
Constitutional Court Law Clerk to Justice Skweyiya, 2009-2010
3 September 2015
Initially published by the Legal Resources Centre.
 T Skweyiya, Speech to the Constitutional Court of Columbia, 2011.
 C Benjamin, ‘Skweyiya rests his case’ Mail & Guardian, 25 August 2014.
 C and Others v Department of Health and Social Development, Gauteng and Others  ZACC 1; 2012 (2) SA 208 (CC); 2012 (4) BCLR 329 (CC) (concurring judgment).
 Le Roux and Others v Dey  ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC), paras 207-215.
 J v National Director of Public Prosecutions and Another  ZACC 13; 2014 (2) SACR 1 (CC); 2014 (7) BCLR 764 (CC).
 Joseph and Others v City of Johannesburg and Others  ZACC 30; 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC).
 Print Media South Africa and Another v Minister of Home Affairs and Another  ZACC 22; 2012 (6) SA 443 (CC); 2012 (12) BCLR 1346 (CC) para 52.
 Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal  ZACC 49; 2014 (3) BCLR 333 (CC); (2014) 35 ILJ 613 (CC); 2014 (5) SA 579 (CC).
 T Skweyiya, ‘The South African Constitution: A Redress of the Past’, University of Fort Hare, 16 April 2012.