New podcast takes us behind the scenes of the Concourt

Johannesburg advocate Mark Oppenheimer is so passionate about the law and the Constitutional Court, he has created a podcast that allows listeners to go behind the scenes of the most important cases in South Africa. “Constitutional Landmarks” explores everything from the Truth and Reconciliation Commission (TRC) to the question of the death penalty, to Zuma’s legal battles, discussed in depth with the judges who made landmark findings and the advocates who stood before them.

“It’s a project I’ve been working on for a couple of years,” says Oppenheimer. “I wanted to interview judges and advocates who were involved in the biggest cases heard at the Constitutional Court [Concourt]. The idea is to have an eyewitness account to history. The public has become really invested in the Concourt and who sits on it, so this is to showcase the early days of the court and the big cases and figures in that court.”

Podcast episodes will be released every two weeks. “There are three prominent Jews involved [in the podcast]: Albie Sachs, Gilbert Marcus, and myself. So you get a sense of the role that Jews have played in developing our jurisprudence.”

Oppenheimer says this is especially relevant in light of the recent overlooking of Judge David Unterhalter for a position on the Constitutional Court. “Jews have played quite a prominent role in the Concourt and the development of our law, and it seems like there’s a move to stop that by denying them access. This is a reminder of the work that Jews have done.”

He says that when conducting these interviews, he learned “an enormous amount”. “Basically, as a lawyer you really only have access to the judgements, so you can see the outcome but you don’t know what happened behind the scenes. So, it was an incredible experience to speak to people who were there. You find out things that no one else could possibly know.

“In that sense, it was a delight for me to find out the personal stories and the reasons why certain things happened. It’s kind of like being able to be backstage at a play and see the goings-on and the technical moves made by the different parties. For listeners, it’s about being able to ‘pull back the curtain’, look at an institution, and find out what really happens behind the scenes, the personal stories of the judges, and how that has played a role in the kinds of judgements they made.”

It was also a meaningful experience for the interviewees. “They really enjoyed the process, especially for those who reflected on cases that occurred quite a long time ago, or who have been retired for a long time, thinking of that era of South African history and their role in it was really important. Yvonne Mokgoro burst into tears when we interviewed her. I think it was quite powerful for her to think about why she became a judge and what her time was like at the court. And then having us reflect on it as well. She wrote the first free-speech case of the court and had quite an interesting role to play there, so her reflection on that journey was quite important for her.”

The first episode is the Zuma litigation. “I look at the contempt case and rescission application and also the Nkandla judgement,” says Oppenheimer. “I have original footage from those cases, so you can hear the judges reading out extracts from their judgements. Then I interview two advocates involved in the Nkandla case – Gilbert Marcus and Wim Trengove. Gilbert acted for Thuli Madonsela who was the public protector at the time, and Wim acted for the EFF [Economic Freedom Fighters] who brought the case to hold Zuma to account for irregular expenditure at Nkandla. It’s really the first time that the Concourt had ever held a president accountable. I include an extract from [Chief Justice Mogoeng] Mogoeng who was the judge in that case. He has this interesting passage where he talks about ‘the sword of justice chopping off the rotten head of impunity’.”

The second episode looks at the controversial issue of the death penalty. “I interview Johann Kriegler and Yvonne Mokgoro, who both sat in that case, and we talk about the arguments for and against the death penalty. Johan imposed the death penalty when he was a high court judge, and he talks about why people deserved to die according to the law at that time, but then when the law changed, you could no longer have a death penalty because we had a right to life. I interview Wim and Gilbert again. They acted for those facing the death penalty.”

The third episode is on litigation surrounding the TRC. “The political party Azapo [Azanian People’s Organisation] tried to stop the TRC on the grounds that it was limiting people’s access to courts. By granting perpetrators immunity, it meant that victims couldn’t sue civilly the people that had wronged them, so they couldn’t get financial compensation, and they said that was unconstitutional. I interview Albie Sachs who was one of the judges who heard that case. Gilbert is again involved in that. And there are some extracts from Desmond Tutu.”

This week, he released the next episode in which he interviewed Salim Nakhjavani, who was a prosecutor in the case against the Khmer Rouge after the Cambodian genocide. “We look at that as an alternative to the TRC process – if we had had a criminal trial process, and how well it did in finding the truth of what has happened in genocide cases or in cases where states have done horrible things.”

Retired Justice Albie Sachs told the SA Jewish Report that he chose to be interviewed for the podcast because “the TRC was a very important phase in the life of South Africa. It had to happen, and it had to happen then to deal openly and honestly with terrible pain, acknowledge it, and move forward to changing the country. People had to come forward and talk about the terrible things they had done. It was very experiential, very emotional, and very meaningful. It didn’t solve the problems or the pain, but it made it easier to move the country forward.”

Sachs was essentially on both sides of the process, championing the TRC process even though he is a victim who suffered at the hands of the apartheid regime. “The person who organised placing the bomb that blew me up went to the TRC, and I didn’t oppose him getting amnesty. His name was Henri, and I’ve written a lot about my encounter with him and speak a lot about it. So, it’s not as though the TRC happened in 1996 and I forgot about it, it’s been a continuous part of my life.”

He believes that people should listen to the podcast and the TRC episode in particular because “the TRC was very controversial and rightly so, and there’s still a lot of unfinished business. The podcast will help people understand it better. There are many valuable different points of view. I was touched to hear my own voice at the end as part of multiple voices. The point of the TRC was to hear multiple voices, so it’s important that the podcast contains so many perspectives. The issues are deep, meaningful, and timeless.”

• The ‘Constitutional Landmarks’ podcast can be found at https://anchor.fm/constitutional-landmarks or youtube.com/c/ConstitutionalLandmarks