- On 9 June 1995, Mr Mandela delivered the first memorial lecture at the Market Theatre, Johannesburg.
- Chief Justice I Mahomed delivered the second memorial lecture on 3 February 1998 at the House of Assembly, Cape Town.
- Chief Justice Arthur Chaskalson delivered the third memorial lecture on 18 May 2000.
- See S Clingman Bram Fischer: Afrikaner Revolutionary (1998); G Budlender ‘Bram Fischer: The Man and the Lawyer’ (1995) 8 Consultus 161; S Ellmann ‘To Live Outside the Law You Must be Honest: Bram Fischer and the Meaning of Integrity’ (2001) 17 SAJHR 451.
- In 1909, Abraham Fischer represented the Free State in London on formation of the Union of SA in 1910. From 1910, he served as Minster of Interior and of Land in Botha's Union Government. As Minister of Land, Abraham did the preparatory work for the passage of the 1913 Land Acts. He died on 16 November 1913, before the passage of the Land Acts. Clingman (note 4 above) 27.
- Ibid 225.
- 16 December was commemorated annually by Afrikaner nationalists to mark Dingaan's Day, anniversary of the Battle of Blood River, 1836 when Voortrekkers defeated the Zulu army of King Dingaan.
- This part of the speech is reproduced in Clingman (note 4 above) 99.
- Dr Yusuf Dadoo was then Leader of the Transvaal Indian Congress and later Leader of the CPSA. Clingman (note 4 above) 148.
- By December 1945, he had been elected on to the Central Committee of the CPSA.
- I Mahomed ‘Bram Fischer Memorial Lecture’ (1998) 14 SAJHR 209.
- Budlender (note 4 above) 161.
- ‘Fischer's legal practice represented various aspects of Fischer the man. He was sought out by major industrial and mining companies for his learning and skills as an advocate and he was sought out by the leaders of resistance movements in South Africa who valued not only his learning skills but also his deep commitment to the cause of a non-racial and democratic South Africa’. Ibid.
- The team of advocates in the treason trial included Vernon Berrange, Sydney Kentridge and Charles Nicholas.
- The team was inclusive of Arthur Chaskalson and George Bizos. The instructing attorney was Joel Joffee. Ellmann (note 4 above) 459–61 draws attention to the ethical dichotomy of being at once counsel and co-conspirator of the accused. At first blush, this ethical and professional dilemma seems intractable until one gains insight into the exacting moral choices Bram Fischer had to contend with.
- Mahomed (note 11 above) 210.
- Society of Advocates of SA (Witwatersrand Division) v Fischer 1966 (1) SA 133 (T). The ratio of the decision of De Wet JP, with Hill and Boshoff JJ concurring, was that Bram had breached his solemn assurance that he would stand trial and that such a breach was dishonest conduct, sufficient to warrant his removal from the roll of advocates.
- Ibid 135H.
- I believe that a ministerial task team on the legal profession under the leadership of Geoff Budlender has produced a near final Legal Practice Bill: 2002 (dated 27 February 2002). As a major re-ordering of the legal profession is likely to occur, it would be most befitting for Bram Fischer to be reinstated posthumously, by a special statutory instrument, as a member of the Bar.
- Act 74 of 1964.
- A Chaskalson ‘The Third Bram Fischer Lecture: Human Dignity as a Foundational Value of Our Constitutional Order’ (2000) 16 SAJHR 193, 195.
- Constitution of the Republic of South Africa Act 108 of 1996 (‘the Constitution’).
- Sections 1; 7 and 10 of the Constitution.
- See ss 1(a); 7(1) and 9 of the Constitution. From Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 CC, there appears to have been no objections to the goal of ‘social justice’ in the preamble. In Fraser v Children's Court, Pretoria North 1997 (2) SA 261 (CC) para 20 Mahomed DP relied in part on the Preamble for interpretative purposes.
- Pharmaceutical Manufacturers of SA: In re Ex Parte President of the RSA 2000 (2) SA 674 (CC) para 44.
- Ibid para 49.
- C Albertyn & B Goldblatt ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 SAJHR 248, 249.
- S V Williams 1995 (3) SA 632 (CC) para 59 (per Langa J).
- Coetzee v Government of the RSA 1995 (4) SA 631 (CC) para 46 (per Sachs J).
- S v Makwanyane 1995 (3) SA 391 (CC) para 262 (per Mahomed DP).
- Pretoria City Council v Walker 1998 (2) SA 363 (CC) para 101.
- For a discussion of the countermajoritarian dilemma and an analysis of theories of constitutional interpretation see J Kentridge & D Spitz ‘Interpretation’ in M Chaskalson et al Constitutional Law of South Africa (1996; 5 rev 1999) 11–1 et seq.
- Albertyn & Goldblatt (note 27 above) 272.
- President of the RSA v Hugo 1997 (4) SA 1 (CC) para 74. Albertyn & Goldblatt (note 27 above) 272–73 argue that the Constitutional Court has shown a commitment to the transformative project and to the creation of an indigenous jurisprudence of transformation. However, in some of its judgements, the right to equality has been defined with reference to dignity, rather than as a constitutional value which goes beyond the individual or personal affront of the claimant. The right to equality, properly applied, is an antidote to material imbalances and other systematic disadvantages.
- Albertyn & Goldblatt (note 27 above) 250.
- Compare S Woolman & D Davis ‘The Last Laugh: Du Plessis v De Klerk, Classical Liberalism, Creole Liberalism and the Application of Fundamental Rights Under the Interim and Final Constitution’ (1996) 12 SAJHR 361.
- KE Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146, 149.
- S V Zuma 1995 (2) SA 642 (CC) para 17.
- Klare (note 37 above) 146.
- For a discussion of the universality, interdependence and indivisibility of human rights see KA Acheampong ‘Reforming the Substance of the African Charter of Human and Peoples' Rights: Civil and Political Rights and Socio-economic Rights' (2001) 1 African Human Rights LJ 185, 190. Also see E De Wet The Constitutional Enforceability of Economic and Social Rights (1996) chapter 5.
- Government of the RSA v Grootboom 2001 (1) SA 46 (CC) paras 23–25 (per Yacoob J).
- Albertyn & Goldblatt (note 27 above) 261.
- The temptation to set out my catalogue of cases ‘wrongly decided’ by the Constitutional Court is huge but completely unhelpful. Such a catalogue would prove practically ineffectual and is an unwarranted diversion from the purpose of this memorial lecture.
South African Journal on Human Rights
Volume 18, 2002 - Issue 3