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Those appointed to South Africa’s first Constitutional Court in October 1994 faced huge challenges. Among them was the need to persuade the new Cabinet and Parliament to take them and their orders seriously, as the ultimate interpreter and guardian of the Constitution; to overcome the prejudice harboured by some of the “old-order” judiciary, particularly in the Supreme Court of Appeal, now usurped from its role as highest court; and most importantly to win public confidence and legitimacy, without which the Court would have no authority. Critically, its members had to learn to work collegially, as a team.

It is in this last respect that Constitutional Justice Yvonne Mokgoro, who sadly died last week aged 73, played a vital role. It is no secret that the first bench of eleven constitutional justices had in its ranks some outstanding jurists with stellar careers both as advocates and judges before appointment. They were intellectually of the highest calibre, exceptionally hard working, highly individualistic, and used to the often brutally frank cut-and-thrust of curial questioning and debate.  Yet, the establishment of a collegial team-spirit gradually asserted itself too under the leadership of Arthur Chaskalson so that after about seven years the Court presented itself as a highly functional and effective governing body at the head of the judiciary, without sacrificing individual brilliance. 

Yvonne Mokgoro’s innate and abundant warmth, concern for others, strong sense of justice, and friendliness must have played a critical part in fostering such a collegial culture. She was for most of her tenure (she retired in 2009, along with Chief Justice Pius Langa, Kate O’Regan and Albie Sachs, when she reached the end of the mandatory period of fifteen years’ service) one of only two women on the Court, the second-youngest member and the first black woman ever to be appointed a judge in South Africa, and one of the few academics appointed, with no significant practical experience. For some of her colleagues and doubtless many of those who appeared before her as counsel, this may have been viewed as a disadvantage, but she met the challenges squarely and did not resort to defensiveness or sharp rebuke.

The importance of her role on the Court was no more evident than in the aftermath of (former) Judge Hlophe’s unwarranted intrusion into the work of the Court in early 2008. Justice Bess Nkabinde, the target of one of Judge Hlophe’s visits, sought counsel from Justices Mokgoro and O’Regan, who strongly supported her in reporting the matter to Chief Justice Langa. This in turn led to all the members of the Court laying a joint complaint to the Judicial Service Commission against Judge Hlophe.

Justice Mokgoro championed the notion of ubuntu in her first judgment (S v Makwanyane, 1995, which outlawed the death penalty) and frequently raised the relevance of African values in the development of South African Law. She was one of the most effective ambassadors for this new court, both nationally and abroad, and maintained her links with academic life throughout her tenure. She was centrally involved in setting up the Sol Plaatjie University in Kimberley in her very active retirement years, and was a staunch defender of the rule of law at all times.

Freedom under Law joins the many organisations and individuals who have noted their admiration and respect for the life and work of Justice Mokgoro: we are the poorer without her.

Issued by Justice Azar Cachalia, Chair of the Freedom Under Law board