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[ Silence ]
>> Welcome to the UCL Bloomsbury Theatre this evening
for a most special lecture.
It's my enormous pleasure to be able to introduce to you one
of the world's most renowned judges,
a judge renowned not just for judging,
for that is what judges do, but for a depth of humanity
and vision, this is unusual amongst the judiciary
of the 21st century.
I should like to add a personal note, I first knew Albie Sachs,
not as a judge but as a young law lecturer.
We met about 37 years ago.
I, in short trousers having arrived
from the British Colonies in New Zealand and Albie,
as a rather older and wiser man then as now, and somebody
who acted as a very significant mentor for those of us
who participated with him, I remember, in faculty boards
and examiners boards and Albie was the one
with the greatest patience.
The man who found it unnecessary to fail anybody or to think ill
of anybody, even of me, but somebody who brought
to our deliberations, even then,
a sense of fairness and of justice.
In the mid 1970's he was to leave us and to return
to Africa, not to the South Africa where, in the 1960's,
his enthusiasm for justice had been punished most severely.
He was confined to solitary confinement under the 90 day law
of the apartheid regime, released
and immediately re-confined for a further 90 days.
It was an experience that was relayed to the world in his book
and subsequently West End play, The Jail Diary of Albie Sachs.
But it was when he returned to Africa, on this occasion
to Mozambique, that the apartheid regime struck most
cruelly with a car bomb that maimed him severely.
Many will recall his account on Desert Island Discs
of recovering from that blast and realising
that he was still alive and that everything still was ahead
of him and that everything still was possible.
Fifteen years ago, in the new South Africa, he was appointed
to the constitutional court.
And those who have visited Johannesburg will see,
rising out of the ruins of the old prison,
this architectural triumph to justice
and to fairness in a new society.
He has just after 15 years of service finished his term
of office as a judge and he's joined us here tonight.
Ladies and gentlemen, please would you join me
in welcoming Albie Sachs.
>> The theme of the talk tonight is from refugee
to judge of refugee law.
And the first time I came as a refugee
to the United Kingdom I was smiling on the outside,
appeared to be buoyant, on top of the world, free, free at last
but inside destroyed in turmoil.
Anybody who'd seen me stepping onto the Union-Castle back
in Cape Town would have seen somebody writhed in smiles.
I don't think I threw streamers, which is what we used to do,
down to the people on the dock side.
Music was playing.
The ship went [noise] as it pulled out.
Everybody was cheerful and I appeared
to be cheerful along with everybody else.
And I did enjoy that trip.
I played tenniquoits and was actually run
around the Cape Town Castle, from Cape Town
to South Hampton in 1966, run around.
I played ping pong.
I played Bridge.
I took part in the fancy dress.
I sort of remember I was the spy who came
in from the cold blowing my nose.
[laughter] I was away from the security police,
away from the detention
but inside there was something damaged, broken,
deeply sore and troubled.
And I so recall when I got to London the thing I liked
to do most of all was just to go up to Hampstead Heath and lie
on the soft grass and look up and see the kites flying.
And just that sense of peace, of peace, of being able to go
to sleep at night and not feel, will they come?
[knocking] Will they come for me?
To be able to use the telephone
and not feel are they listening in?
To be able to open a letter and feel
that this was private correspondence.
To be able to walk down the street
and feel I'm not being followed,
to feel that my car has not been tampered with.
It was a sense of elation and a sense of happiness of being
in the United Kingdom, being in a free country
and being a free person.
And yet inside there was something deeply troubled,
I'd been detained, as Malcolm said, under the 90 day law
without charge, without a right to go to court, without access
to council, without access to my family.
Locked up in a concrete cube, like thousands
of other South Africans and like thousands and tens of thousands
and maybe hundreds of thousands of people throughout the world.
And I would stare at my toes and stare at the wall, at my toes,
the wall, my toes, my toes, the wall and try to invent things
to keep myself alive and active
and to feel I'm a real human being.
And I would invent activities.
I've tried to count the number of states, the United States
in America and I'd start with A and go through the A's, Alabama,
Arizona, Arkansas, I used to call it Arkansas then
and through the B's and the C's and I would get up to 40 and 41
but I didn't have a pencil,
I couldn't write any of the names down.
And I would sing songs.
I would start with Always, Because, Charmaine,
be quite an interesting profile of the popular hit tunes of 1964
and Always has become almost a theme song of mine.
Daisy, I had some problems with X so I would sing Deep
in the Heart of Texas.
That was the best I could do there.
[singing] I'll be living here always, year after year always,
in this little cell, that I know so well, I'll be living swell,
always, always and I'd waltz around on my own
and feel rather amused that Noel Coward, who wasn't known
as a great freedom fighter and supporter [background laughter]
of evolutionary causes was keeping up my spirits
in police fashion near Cape Town.
[singing] I'll be staying in always,
keeping up my chin always.
Not for but an hour, not for but a week,
not for 90 days but always.
And then I'd sort of waltz around
and feel sorry for myself.
And try and buoy myself up.
And again, as Malcolm said, after 90 days somebody comes
to my cell and says, gives me back my tie,
gives me back my watch, my shoelaces, put on my clothes
that I wore when I was entering my chambers
and detained initially.
Go down the stairs into the charge office station.
Commander says you're free to go and I'm looking at him very,
very, very suspiciously.
I don't believe anything they say.
But just hearing the words you're free to go and I get up
and I walk out and before I reach the street the main
interrogator comes up to me, big smile on his face,
he puts out his hand, I think that's nice.
He shakes my hand and says I'm placing you under arrest.
Something I think I learned from England you touch the body
of the person when you arrest the body.
He did it through a handshake.
I go back, give up my watch, my tie, my shoelaces,
go back into the cell again.
The law is being complied with.
You can be held for 90 days, released for a few minutes
and held for another 90 days.
I did hold out on that occasion and when I was released
as suddenly as I was detained, I feel absolutely joyous.
This was a real release this time and I put
on some tennis shoes that I've had and I ran from the centre
of Cape Town to the nearest beach,
which was about 10 miles away.
I'd never run a distance like that before
and flung myself clothed into the waves.
And the story went out, Albie Sachs runs to the sea
and people thought I was joyous and happy and part of me was
but part of me was severely damaged inside.
And being detained once doesn't give you immunity
against being detained again.
Two years later I'm locked up a second time
and this time it's a team of interrogators
down from Johannesburg with disdain
for the Cape Town interrogators
who hadn't broken me the first time and they worked
around the clock and they banged the table and they shout
and shout and shout for 15 minutes and then total silence.
And an hour passes and they bang on the table, shouting,
shouting, noise, noise, noise and then total silence.
And it goes on hour after hour, hour after hour
and eventually some food is brought to me and I see kind
of a smirk on their face
and I realise afterwards there's something in that food
that makes me even more tired.
And I go through the night and I'm holding out
and I'm thinking how long, how long can I carry on
and if I break, and as counsel so many of my clients had broken
and when they broke after two or three or four days
of non sleeping, they broke completely.
They had no resistance at all and I'm starting
to think am I going to break, am I going to break?
And eventually at about 5:00
in the morning I collapse onto the floor.
And I see these shoes, black shoes, brown shoes,
crowding around, muttering, talking, talking,
the moment they'd be waiting for, the moment I'd be waiting
and water is poured onto me and I'm lifted up
and my eyes are pried open and I sit
on the chair and I collapse again.
This happens three or four times and each time they lift me up
and they're in control of me and my body,
my fatigue is fighting my mind
and I'm feeling that I'm breaking.
To this day I've not got over that moment of expert loss
of dignity, of autonomy, of a person feeling myself be able
to determine, decide what I'm doing
because my body was fighting my mind
and they were fighting my body and I think there was something
in the food that even weakened my resistance.
And now I'm trying to control my breakdown,
not avoid of breakdown but to control, to control,
to manage what I'm going to say.
And I started, when I did speak, indicating the circumstances
in which I was making a statement, the collapsing
on the floor, the water beads, all written down,
all written down, all written down and if I see
that half smirk on the face of the lawyer,
Swanapool was his name, the person in charge.
And they're shuffling pages around and I'm signing pages
and I realise afterwards that he has just got rid of that page
in which I made that particular statement.
And I feel it's another humiliation
and they outsmarted me and they took advantage of my fatigue.
And so I travelled on the boat and I'm throwing the tenaquoit
and my body is exerting itself.
After my second release my colleagues wanted
to know am I running to the sea again
and I said no, take me home.
Take me home.
And I remember some years later I was a very keen mountain
climber and one day, those of you who know Cape Town,
there's Devil's Peak on the one side, there's Table Mountain
and Lion's Head the third.
And we came between Lion's Head and Table Mountain
and I said I'm going up Devil's Peak.
I climbed three mountains in one day,
totally exhausted at the end of it.
And my psychiatrist friend said it's a well known thing,
it's called in German [foreign language] syndrome.
That's men getting old start fearing for loss
of their virility and going to extreme forms of endeavour.
The only problem was I was 31.
And yet the [foreign language] fitted exactly,
that sense of humiliation and defeat and even
as to do something absolutely strenuous
to prove that I'm still real.
So I'm lying on Hampstead Heath and watching the kites and a lot
of this sense of hurt and damage of being a refugee
like myself running through me and I'm grateful
to the United Kingdom for receiving me.
It's not everywhere in the world I could go.
And yet I'm angry and I'm angry at the very people
who are being kind to me.
I'm angry at my dependence.
I'm angry at my old business.
And running through my head is if it wasn't for you,
the United Kingdom, colonising the world,
British people going everywhere, coming in not as refugees,
not getting permits, not being permitted,
just saying we have a right because we are superior,
we are more civilised.
We can go to Africa.
We can go to Australia.
We can go to India.
We can go to South America.
We can go where we want.
We can take slaves.
We can set up imperial rule and this is all going through me
and I'm feeling strange.
These people have been kind to me and yet I'm cross with them.
And then angry because the Vietnam War was on and I got
to know London marching
from Hyde Park Corner to Trafalgar square.
I knew that journey so well, so well.
I think there are people in this audience
who might remember those marches if you went on them.
And angry that Britain is taking such a soft stand
on the [inaudible] in Rhodesia and finding reasons
to collaborate with the partite
and then thinking what's the matter with me?
I'm being received into this country
and then I'd studied a bit of Freud
and I had some understanding of this displacement,
which I think most refugees in most parts of the world have.
The very support you're getting from particular countries,
the kindness that's been shown to you, because it's
on such unequal terms, gives rise to a projected rage
against the very people who are your benefactors.
And however much intellectually you tell yourself it's unjust,
it's unfair, that's just part of the existence.
I got so much living in this country,
The Jail Diary was published, my book.
My PhD I did at Sussex University.
It was published within South Africa.
The Stephanie On Trial,
the follow up to the Jail Diary published.
Just before I left
for Mozambique I'm told there's a play writer called David
Edgar, who wants to interview you before you go.
The Royal Shakespeare Company want to make a play
out of your two books and I distrusted him.
I told him as much as I could.
I went off to Mozambique feeling displaced, having felt displaced
and the minute I landed
in Mozambique I felt connected and at home.
The second time I came as a refugee
to the United Kingdom I appeared to be broken.
I'd lost an arm, the sight of an eye, I was covered in bandages.
I traveled first class on the airplane for the first time
in my life and I was unconscious from up here to London
but inside I was joyous.
It was the type of inverse of what had appeared
to be the situation when I first came as a refugee and CARA,
the body that looks after refugee academics
from different parts of the world,
I think I'm the only person twice on their books
and original each time.
[ Silence ]
In Mozambique, life was complicated, it was difficult
and yet I felt so connected to that country.
Its problems were the kind of problems of South Africa.
It wasn't just the lights, the air, the flowers, the rainfall,
things that you forget about that come through to you very,
very strongly when you return.
Even the night sky, the stars,
if you don't think about, they're different.
The vegetation is different.
It was the social problems.
Had to learn and I learned Portuguese, to express myself
or articulate in different ways.
And it made me think my years
in the United Kingdom, I wasn't an exile.
I was living in exile.
I was soaking up what I could to take back home
to South Africa one day, free democratic South Africa
and I was writing, I was giving.
And the more I submerge myself in British life,
the more I felt I'm getting things to take home
with me afterwards to South Africa.
I didn't have that conflict that many people who have immigrated
to another country have.
To what extent do I give up my emotional
and cultural patriotism of my youth, growing up,
to immerse myself in the new country?
The more I immersed myself the more I felt I could take
You have to remember I did family law.
I did criminal law.
I did contract law.
I did torte.
I did international law.
I put on a course in law and racial discrimination.
I think the first course
in gender discrimination of its kind.
I wrote the book Sexism of the Law.
It was a vital and active life that I lived
and somehow the word refugee just doesn't seem right.
I didn't feel a refugee.
I felt part of this hugely diverse country called the
United Kingdom, living in this amazingly diverse city called
London, commuting to Southampton or first
to Brighton and back again.
In Mozambique it was dangerous but the danger wasn't coming
to me from the Mozambique state, it was coming
from across the border.
And I felt a certain pride when I queued up with everybody else
for our rations of rice, meat maybe once a week,
eggs maybe once a week, bread every day.
And working in the new newly created faculty of law
and doing research afterwards.
And getting that feeling of coming to grips with the sort
of problems that began to have in South Africa that we have
to deal with, I would have to deal with one day and learning,
learning, learning all the time.
And they wanted me to register as a refugee and I didn't want
to register as a refugee.
That you being a refugee you kind of has connotation
of a rather helpless person who's washed up somewhere,
who has to be cared for and looked after.
That wasn't me.
I didn't feel in that sense I was a refugee.
I was a person.
I was Albie Sachs.
I was part of the ANC Freedom Struggle,
the antiapartheid freedom struggle
but they said being a refugee will give you a certain
protection, international law principles in relation
to refugees and it's for your own good.
And wanting to be a good guest
of the Mozambique government I signed on as a refugee.
It didn't protect me.
I was blown up, nevertheless.
And I sort of remember something terrible was happening,
just total darkness.
I didn't know what it was.
And I disappear into nothingness and I hear a voice
in darkness saying Albie, this is Eva Careedo you're
in the Maputo Central Hospital.
Your arm is in lamentable condition.
You have to face the future with courage.
And I say what happened?
And I hear a woman's voice saying it was a car bomb.
I faint again but this time into joy because I know I'm safe.
I'm not being kidnapped and taken to South Africa.
And time passes and I'm conscious
and I feel light, very light.
In the darkness I feel a sheet over me
and I tell myself a joke.
Some of you would have heard me telling the joke.
Others of you would have heard the joke anyhow.
But Himie Cohan falls off a bus.
He gets up and he does this and someone said Himie,
I didn't know you were Catholic.
And he says what do you mean Catholic?
Spectacles, testicles, wallet and watch.
And I'm lying on something and started
with testicles, feeling all in order.
And I've tried to be macho without much success all my life
but the word went round to the ANC camps,
the first thing Albie did was reach for his balls [laughter]
and I became a macho hero for 15 minutes.
I feel my heart, wallet, okay.
I feel my head.
There are bandages there but there're no craters.
I'm going to be okay.
And then my hand slides down and I remember what was said
about my arm in lamentable condition.
And I faint but faint into joy because I know I've survived.
That moment that every Freedom Fighter has,
will they come for me today?
Will they come for me tonight?
Will I get through the night?
Will I get through 24 hours?
And if they come for me, will I be brave?
And they've come for me and they've tried to kill me
and I'd got through and I'd only lost an arm.
And I felt joyous.
And that was in 1988, more than 20 years ago.
And I still feel joyous.
I felt somehow as I got through and as I recovered,
my country would get through, my country would recover,
it is a non rational but total conviction.
And I had to learn to do everything again,
even my simple body functions.
And eventually the bandages come off
and I see I've lost the sight of one eye.
I can see through the other eye.
And I had to learn to sit up and I had to learn to stand.
And by now I've been transferred to the London Hospital
where my brother, now sadly my late brother,
Johnny, was an immunologist.
And I have to learn to stand.
And I had a relationship with the nurses
who would take off my bandages, wash my body
with such tenderness and love and care and clean out.
I still remember saying one day as she pulled out a little bit
of shrapnel, let's get rid of this rubbish
and I said don't call it rubbish.
That's my car you're speaking about.
[laughter] And it gave me a totally different relationship
with this country.
No rage. This is organised love and care at a physical level,
kindness of people who didn't know me
but who were just looking after me professionally
and somebody who'd been victim of a burn out rage in that way.
And it's again a very beautiful bond that has remained with me
to this day and that I just appreciate enormously,
more powerful than being put on at the Del Mar Theatre,
marvellous though that was, more powerful than broadcasting,
even teaching at South Hampton, which I enjoyed so much.
There was just something in those hands and the courtesy
and the affection and the daily care.
There would be hard moments.
About 4:00 in the morning, it's still dark,
the pain killers are wearing off.
I'm lying alone in the bed.
There's no activity around me.
And I am feeling very alone.
And then again I would sing to myself, [singing] it's me,
it's me oh Lord, standing in the need of prayer.
It's me, it's me oh Lord, standing in the need of prayer.
It's not my brother, nor my sister but it's me oh Lord,
and so I would go through all the different relatives I could
imagine, just feeling a little sorry
for myself, consoling myself.
I'm not a religious person but the spiritual came to me.
I think I'd first heard it on a record
by Paul Robeson just consoling me in that moment
when I'm totally alone.
And then the day would brighten up and the nurses would be
around and caring for me and some visitors would come.
And the day comes where I have to put my feet over the edge
of the bed and the physiotherapist said Albie,
you're going to stand today and put your feet down and tuck
in your bum, I think she said your bum.
And I'm terrified.
My one heel was shattered.
Some weeks had passed, can I possibly stand?
I'm going to collapse.
And she says and stand up and I feel my body going up.
And I still remember there was a mirror in front
and I see this lean face with a shaven head and scars
and bandages looking so, so, so serious going up past the mirror
and then coming down again,
that same serious face past the mirror and back
onto the bed triumphant.
And for this moment I can stand.
Look, mommy, I can stand.
It was like the first time I stood as a child.
And such an appreciation,
especially for the physiotherapist,
who found the courage inside me, even more than the doctors
who were medicating and pushing things into me and testing me
and speaking about me and sometimes speaking with me.
And so I recovered.
I learned to stand.
I learned to walk.
I still remember the saying, which I offer
to anybody who's got leg problems, you don't know,
when you're going upstairs and downstairs,
which leg do you lead with.
And it's the good foot up to heaven
and the bad foot down to hell.
[laughter] And then I learned to run.
I had to learn to write with my left, to tie a shoelace,
to tie a tie but each time it was
like feeling I'm being reborn.
Naked you come into the world, naked I almost went out,
naked I came back into the world.
It's wonderful to have that second chance, almost to be
like reborn without some huge act of emotional faith.
It was just physically being reconstituted as a human being
and recovering my dignity and then the marvellous period
of preparing for a new constitution for South Africa.
The very first talk that I gave was at the LSE.
I wish I could say it was at UCL but it happened to be at LSE.
I still remember how drab that room was.
It Mozambique, even if it was just a janitor there would be
at least one flower, one plant.
And the difficulty of organising your mind,
lying in a hospital bed.
The only sport I could watch
when I was quite a lot better was snooker.
It was so quiet and all you would hear would be a click
and maybe a little bit of applause.
I couldn't watch the tennis, the energy, the tension.
And hearing a program about the society for the protection
of hedgehogs at the roadside and thinking it's amazing to be
in a country where you can have a society for the protection
of roadside hedgehogs.
[laughter] Talk about diversity, talk about being able
to do the things that's important to you.
There was another story about my, going back to South Africa,
voting for the first time as an equal, helping to write,
part of the huge team that wrote the first constitution,
being on the court.
That's another whole story.
But my second presentation that I gave after coming
out of hospital was to the Centre for Refugee Studies
at Oxford, which was fairly newly created.
And I was invited because I had been a refugee,
a double refugee.
But what was so valuable and important
to me was seeing a completely new vision
of how refugees should be regarded and treated
in the world, not helpless, pitiful people but the right
to be in tents, to be given food, to be given supper,
to have relief from persecution but as lively independent beings
who have something to contribute to the country
that they're going to and who has something to take back
when eventually they get home.
As active neo citizens and Barbara, not very diplomatic
but very powerful, very incisive,
training a whole new generation of people refugee studies,
creating a different vision of refugees
and how refugees should be treated.
And separating out refugee law from immigration law,
not to say that immigration law shall be cruel and inhuman
and so on but understanding refugees are kind
of minor citizens deprived of the right to citizenship
in their own countries, either through persecution or because
of a collapsed state that's unable to protect them
and tossed into some kind of international citizenship.
And seeing refugees, once you're admitted as a refugee,
who knows who might be refugees in future,
all that load was in my head.
I'm on the constitutional court.
And five, six, seven, eight years ago the case comes to us.
And now I'm a judge.
I'm sitting in my green robes.
And the question arises to what extent does my whole experience
of being a double refugee enter
into my decision making as a judge?
Judges are supposed to be dispassionate, independent,
without fear, favour or prejudice.
Does that mean that I have to discard everything
that I experienced, that I went through?
Is all irrelevant?
Or does it mean I simply come up with a subjective view.
I like refugees.
I've been a refugee.
I'm gonna do everything I damn well can on the bench to protect
and support the rights of refugees.
But I've taken an oath without fear, favour or prejudice.
What's the relevance of my subjective experience?
But the court divided.
The issue is more or less as follows, the refugees act,
South Africa has a very progressive refugees act,
the practice doesn't always measure up to the law
but the law is in keeping with international law
and the conventions for the world,
and there's a special African convention,
the rights of refugees.
And it says that refugees have a right to work in the country.
Once you're registered as a refugee you have a right
to work, that any international laws incorporated
into our statute.
There was a separate statute that deals with regulation
of the private security industry.
And one of the conditions for being registered as a worker
in the private security industry is
that you be a South African citizen or a permanent resident.
And refugees only become permanent residents
after five years.
It so happened that many of the refugees found jobs
as car guards, as people providing a very simple form
They didn't carry guns.
They didn't have uniforms.
But that was a job, an unpleasant job,
often in unpleasant weather but the refugees are so eager
to get any kind of work.
In quite large numbers, it was the biggest sector of employment
for refugees and the Ministry of Home Affairs
at first had been pretty liberal in allowing refugees to work
in that area but eventually a blanket ban was placed
on any refugees working in the private security industry.
And I came to court.
And an act eventually reached us on appeal and the court divided
into two groups, group A and I call it group B. And group A,
who happened to be in a minority, took the position
that this was unfair discrimination against refugees,
that there should be equated law to permanent residence
because they couldn't be expelled
but would become permanent residence.
They had a right to work in terms
of international refugees act and excluding them
from work was unfair discrimination.
The majority position was that if there was no possibility
of an exemption for refugees to work
in the security industry then it would have
But there was a sub-clause in the act
that gave the authorities the right to grant an exemption
and the majority said if the exemption was applied
in appropriate way then you have a right
to adjust administrative action, it's in our constitution.
And if you are unjustly prevented from working
in the security industry on a case by case basis,
you can get judicial review.
That coupled with the fact
that after five years you'd become a permanent residence,
coupled with the fact that you could work in any other industry
in other sector of life, meant it was not unfair.
Now the question was which way would Albie go?
With the minority, striking down as unconstitutional,
or with the majority saying
that the exemption appropriately applied could save the
constitutionality of that particular statute.
By now I'd been a judge for a decade
and I remember something what had been said to me
by Justice Izzy Fuego [phonetic] just before I became a judge.
He was a Danish Judge on the European Court of Human Rights
and he said it's a very interesting division
on European Court between judges
of northern Europe and southern Europe.
Judges in southern Europe feel that their job is to distinguish
between right and wrong, justice and injustice,
lawfulness and unlawfulness.
He said the judges in northern Europe have a
The problem is much more to distinguish
between right and right.
In a modern democratic society there are many competing claims
and you have to hold the balance between the different sectors
of society, fleeing the state, the individual,
different sectors of society, and provide,
usually using principles proportionality,
a proper balancing in terms of what the outcome should be.
I've never forgotten that.
And then meeting with Justice Peter Grim [phonetic]
from the German Constitutional Court,
who introduced me to proportionality.
And Malcolm mentioned Desert Island Discs,
I might say not everybody who becomes a refugee travels
on the Cape Town Castle, sadly.
Not everybody as a refugee gets onto Desert Island Discs,
which was the height of my cultural achievement,
[laughter] possibly in my life, certainly in the United Kingdom.
But if I had to go to a deserted island as a judge
with only two items, I would take human dignity
So now I'm sitting up on the bench and I have to decide
between these different visions.
And I'm thinking what is it that we do when we are judging?
And again I recall a discussion I had when I taught
at the University of Toronto
with Professor Jennifer Nedelsky.
So this was my recall of something that she had said.
She'd been taught by Hannah Arendt
and Hannah Arendt was dealing
with the philosophy of Immanuel Kant.
So it is my recall of what she had said about some courses
that she had had based on an interpretation
of an early 19th century Latin and German philosopher
but basically it was distinguishing between reason,
reasoning and judging.
Reasoning is impeccable.
It's a logic that doesn't permit of variations.
Judging has a completely different quality.
It can include elements of reasoning
but judging is not driven simply by an internal logic
and she gave the example of saying
that this picture is beautiful.
If you say this picture is beautiful you are saying
that in terms of criteria beauty for the community of people
who are involved in the judging decision or affected by it
and if these criteria are established over the course
of time it could be in relation to artwork,
it could be in relation to justice, fairness, equity,
right, wrong and you, as she said, quoting Hannah Arendt,
quoting Immanuel Kant, you woo your audience.
You try to persuade them.
It's all an impeccable logic that's right and wrong.
One and one makes two.
You don't woo.
You woo, you try to persuade and that just fit
in with what we are doing as judges.
There has to be a logical persuasiveness
but the problem arises when some colleagues have beautiful logic
to show that it's unfair and other colleagues also very,
very logical, very consistent, very coherent to show
that it's not unfair because exemptions can be granted.
And it also made me think
about Ronald Watkins [phonetic] concept
of this one right answer to any legal problem.
And we herculean judges must find that right answer matronly
and I feel that's not what I'm doing and I wouldn't
like to say I'm right and my colleagues are wrong.
I'd like to say I'm giving it my best shot.
There's an ongoing dialogue, an argument, a disputation,
sufficient at any moment to have a decision
that could be legally binding but I just see it
as inherently unstable in the sense of the dialogue continues,
myself with my colleagues, my court with other courts,
with judges elsewhere, with people arguing,
with academics criticising, to me that's built
into the very nature of judging.
And so now I have to choose between the two.
The obvious answer for me would have been
to say well I've been a refugee and it's better
to enable all refugees to be able to work.
Why shouldn't they work
in the security industry as anywhere else?
That's very important for so many of them.
Let them in.
And yet I thought that one has to conceptualise far more,
regarding meant to cause, there's no reason
at all why refugees shouldn't do that.
Doing so many of the humdrum but necessary tasks,
patrolling buildings and so on,
but there are some very important public
and private installations and individuals
where to allow somebody whom you don't know anything
about that come to your country, you can't check up on them,
you can't get police records.
They must wait for five years, contextualising that way,
distinguish between different forms of security jobs,
in those circumstances it would not be unfair and that's
where the exemption would come in.
And then what become important to all of us on the court,
we're very insistent on this, it's not enough just
to tell the refugees afterwards, you should have looked
at section 21.6 or whatever it is,
where you can get an exemption.
The officials, the bureaucrats have to explain,
have to explain your rights in a language,
through an interpreter if necessary.
Encourage people to apply for exemptions.
Explain what the criteria are.
The kind of circumstances maybe have regulations which lay
down the certain kinds of job
where an exemption will be automatic.
And so my judgment was not to support the striking down,
was not an automatic approval, though I admired the judgment
from my colleagues who wanted to strike down
and an judicial emotion behind it
but I felt a contextual approach would be too expand the nature
of the exemption and to say the fact
that you're a refugee already gives you a strong head start,
almost a presumption, that you should get the job unless the
particular security industry work
for which you're applying is so sensitive, it's so specific
that one needs that extra guarantee and you have
to wait for five years.
But then it wasn't just the outcome that was important.
The language you use in a judgment,
the points of reference, the setting,
emphasising that the officials are not distributing logics
to these poor, pitiful people who happen to end
up washed up onto your shores.
They're fulfilling an international duty
and a statutory duty in the country.
To remind south African officials
that our president had been a refugee.
That many people in government had been refugees,
that some of us in the court had been refugees,
that we were received in Africa.
The countries that received us were bombed, were attacked,
were sabotaged, they paid a very heavy price
so that we could get our democracy.
It was also a part of the obligation that we owed,
not necessarily to pay back in monetary terms the countries
that have suffered on our behalf but to pay back to humanity.
And most of the refugees, as it happened,
came from African countries.
Some have given us support, others that hadn't.
And they were set to strike a warning against xenophobia.
It's so easy for officials, consciously and unconsciously,
to see these refugees
as foreigners coming to take our jobs.
We went into other countries.
We fed and were fed in the countries that we went to
and we have to develop a similar kind of mentality.
And going through researching to African traditional culture,
I just knew there was something in traditional African society
that is very supportive of recognising the dignity
of people who find themselves in displace.
And there's a saying that the foot does not have a nose.
Now you say that in an African language to South Africa,
they know straight away what that means.
I had to have it explained to me.
The nose is where you end up.
You never know where you might end up.
It's a little stronger than saying there
but for the grace of God go I.
It's a sense of international respect for people
who find themselves in displace without a home, without a place,
in a society in another country.
And for me it was important to quote that in this judgment
to indicate this is not some kind of externally imposed set
of values that has nothing to do with South African reality.
It corresponds to the intense humanism that really is
at the foundation of our bill of rights in South Africa.
And so you will see set today why it's a separate judgment.
The mode of telling the story to me is often even more important
than the actual outcome.
The outcome can be a technical outcome.
The mode of telling the story,
and I end my book Strange Alchemy of Life and Law,
with a statement that I feel is valid,
that we judges are amongst the great storytellers
of the 21st century.
We tell our stories in a particular way,
a particular language but we tell them in our own voice,
that we judges are part of the reality that we are judging,
a strange part of the reality because we immerse
and detach ourselves at the same time,
which imposes immense strain on your writing style,
on your presentation, on the extent
to which you tell your story.
But nevertheless we do tell these stories