Thursday, March 16, 2017
Alumnus Andrew Stobo Sniderman, President Nelson Mandela and Sara Prichard

Alumnus Andrew Stobo Sniderman, and his mother, Sarah Prichard with President Nelson Mandela

 

By Andrew Stobo Sniderman, JD 2014

When I was 15 years old, in 2000, I traveled with my mother to Johannesburg to have a cup of tea with Nelson Mandela in his living room. I owed this less to my being an especially virtuous young human, and more to having a wonderful mom who invited me to tag along.

We arrived early for our appointment, of course. When Mandela greeted us, he was smiling and tall and impossibly handsome. He shook my hand and said, “I am honoured to meet you.” I said—well, actually I didn’t say anything, because I lost my ability to speak, so instead I opted for a bewildered nod and my mom was gracious for us both. We sat and he poured the tea. We talked about what he learned in prison (“I had a long time to think”) and why reconciliation was possible (“The oppressed and the oppressors must be set free”).  He joked about his clumsy efforts to navigate the internet. Thirty minutes later, too soon, our time was up. But I promised myself I would find a way back to South Africa.

Andrew Stobo Sniderman (far left) at South Africa’s Constitutional Court
(L-R) Andrew Stobo Sniderman, Lubumba
Kamukwamba, Chandni Gopal, Yana van
Leeve, clerks of Justice Edwin Cameron (rear)

As it happened, my ticket back was the common law, Canada and South Africa’s shared inheritance from British imperialism. In 2015, I returned to Johannesburg to serve as a law clerk at South Africa’s Constitutional Court for Justice Edwin Cameron, a judge appointed by Nelson Mandela. Cameron, too, has become a moral icon—a human rights advocate, proudly gay, openly HIV-positive, and fearlessly outspoken about it all.   

I am not the first U of T law alumnus to clerk for this Court, and hopefully I will be far from the last. There is consistently a Canadian among the foreign lawyers South Africa recruits to work for its highest court, and in my six months there I joined colleagues from Kenya, Uganda, France, the United States, and Ireland—all of us united by a shared legal language and a passion for South Africa’s post-Apartheid transformation. The Court regularly draws on foreign law to inform its decisions. I quickly discovered that the Court’s massive library featured a satisfying number of stacks labeled “CANADA,” including books by my former U of T law professors Kent Roach and David Schneiderman.

Every day I left home at dawn to bike 10 kilometres to the center of Johannesburg, up “Constitution Hill.” Most people thought I was bonkers to brave the Hobbesian roads (a legitimate concern) and the chilly winter mornings (for a Canadian, not so much).

The Court was built on the grounds of a notorious prison that once jailed Mahatma Gandhi, for his early non-violent organizing against racism, and Nelson and Winnie Mandela, for their resistance to Apartheid. Half of the new courtroom’s walls use jagged bricks re-purposed from the old prison. Yes, the Court’s architects make it rather hard to ignore weighty metaphors: phoenixes nearly everywhere you look.

Many of the prison structures remain as a museum, and visitors are reminded of Mandela’s words: “A nation should not be judged by how it treats its highest citizens, but its lowest ones – and South Africa treated its imprisoned African citizens like animals."

South African's Constitutional Court

The aesthetic of the Constitutional Court is nearly the opposite of its austere Canadian counterpart. The entrance is emblazoned with large and colourful translations of “Constitutional Court” in South Africa’s eleven official languages. The terrifically heavy front door is made of wood and engraved with symbols for each of the rights in the Constitution’s Bill of Rights.

The first thing a visitor sees in the main hallway is an unapologetically garish neon-lit slogan affixed to a preserved corner of the old remand facility: “A LUTA CONTINUA” (the struggle continues, as was said in Portuguese by comrades in Mozambique). Immediately below lies “VIVA MK”, in graffiti, referring to the armed wing of the African National Congress that Mandela once led. The rule of law is never a happy accident, and South Africa paid as high a price as any.

The South African constitution, the soul of the Court, is a marvel, as elegant and inspiring as Apartheid was brutal. Its drafters drew on the Canadian Charter of Rights and Freedoms for inspiration—when it comes to justified limitations of rights, their section 36 is the new section 1—and then went far beyond. It enshrines the individual’s meta-right to dignity (s 10). It guarantees equal treatment regardless of sexual orientation (s 9). Rights can be enforced against more than just the state (s 8). It protects socio-economic rights to education, food, water, social security, housing and health, with the delicate and necessary proviso that “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights” (s 26, 27 and 29).    

To ensure that the Constitution’s inspired words would not be narrowly construed by judges who were appointed when Mandela was better known as a terrorist, a new highest Court—the “Constitutional Court”—was created to interpret and defend the new Constitution. And so it did, in a bold and transformative way, recognizing gay marriage, extending voting rights to the incarcerated, ending the death penalty, mandating anti-AIDS medication for pregnant mothers and more housing for the homeless.

signange: a luta continua

While I was a law clerk, the highest profile case was about a gay Methodist priest named Ecclesia de Lange who was dismissed when she announced to her congregants that she would be marrying a woman. Deciding whether this should be legal requires a careful weighing between the right of equality and the freedoms of religion and association. As it happens, the lawyers for the Church prominently featured a Canadian case from 1984 in their written and oral argument. In Caldwell, the Canadian Supreme Court decided that a Roman Catholic school was not wrong to dismiss a teacher who violated Church dogma by marrying a divorcee.

Caldwell came up again at the oral hearing, where it was said the Canadians had figured this kind of problem out. A skeptical judge asked whether a Church should be permitted to deny black people the opportunity to be priests. Didn’t the right to equality protect equally against decimation based on all immutable grounds, including gender, race, sexual orientation? The answer, from a canny lawyer who understood that constitutional interpretation has something to do with history: “Race is different.”   

As it happened, months later, the case was dismissed on a series of technicalities.

Xolile is a Xhosa name, which means when you read “X” a clicking sound is required in speech. This is an easy matter for those who spoke Mandela’s mother tongue, like some of my colleagues, but for some reason my peers thought it would be hilarious to ask the white Canadian to call the case with a Xhosa name. But I would not be deterred.

The job of a law clerk, as law clerks know and cannot share in any detail, is thrilling. The law must be built, case by case, with good facts and bad. Hard cases need answers. Incommensurables must be weighed. Find les mots justes, or else. The occasional sausage is indelicately made, but justly.

I was consistently wrong in my own predictions about how the Court would land. Another interpretation was possible, and I often missed it. This probably had something to do with my lack of depth in South African law, but also my inability to anticipate how history, context and a mandate for transformation dramatically affect interpretation. Race in South Africa, for example, is different.

I made other, more publicly humiliating, mistakes. Xolile David Kham. Nice looking name, right? In my second month as a clerk, I was assigned the task of announcing this name and a few others to a packed courtroom for a hearing before the 11 judges of the Constitutional Court. Every rookie gets assigned to “case calling” at least once. The task simple enough: precede the judges into the court room, ask the audience to get vertical, and then at the appropriate moment call out the names of the parties. 

Problem number one: Xolile is a Xhosa name, which means when you read “X” a clicking sound is required in speech. This is an easy matter for those who spoke Mandela’s mother tongue, like some of my colleagues, but for some reason my peers thought it would be hilarious to ask the white Canadian to call the case with a Xhosa name. But I would not be deterred. I practiced with a native speaker. A lot. “Xo” sounds like that clicking noise people make to get the attention of a horse, but at the same time you have to make an “Oh” sound. It turns out that learning to click is one thing, and doing it near the top of your lungs is another. To make matters worse, since the case was about election rigging, it was controversial enough that the room was full and buzzing and TV and radio stations were broadcasting the proceedings all across the country. Live. Ha ha, gulp.

I strode from the back of the courtroom and boomed: “Please rise for the Constitutional Court.” So far, so good. I was under strict instructions to wait until the judges sit to call the name of the case. I looked at the crowd and spontaneously forgot said instructions. While the judges were still standing and finding their seats, I prematurely erupted with a mangled click. XOLILE! On the upside, I projected well. Later, my Xhosa tutor said: “I’m not going to lie: it was ugly.” Then as now, I had more work to do to earn Mandela’s gracious words to me all those years ago. 

As for South Africa, its reality still mocks its Constitution, but that is a credit to its ambitions as much as a reminder of its challenges. Last year, in a landmark case on par with Canada's Roncarelli, the Constitutional Court unanimously ruled that the South African president had violated the Constitution and had to reimburse the state for improper expenses. The president apologized on national television and paid back the money—a concession that judges could speak reason to power, and win.