A gay couple exchange wedding vows in New York last year. The South African Constitutional Court's verdict on gay marriage shows that it sometimes fails to fully exercise its powers, the writer argues.

Eusebius McKaiser recounts his meeting with a retired lawyer who confessed to having made a mistake while in practice.

Johannesburg - Heard the one about an honest lawyer? Great things happen to some people after they’ve retired. They become more honest. They develop a moral backbone. They discover progressive values lurking in their closet.

Geez, if it’s not a former African president suddenly championing gay rights, it’s a local ANC politician worrying about the – how does the tired phrase go? – rot of corruption at the heart of the movement.

On Thursday morning I witnessed another of these post-retirement moments. I met an honest lawyer. Correction: I met a retired lawyer who confessed to having made a mistake while in practice.

I had the enviable luck of spending a few hours with retired Justice Zak Yacoob, who served our country outstandingly on our constitutional court bench for many years.

I was facilitating what turned out to be a brilliantly uncomfortable (and usefully so) self-examination of the state of public-interest litigation in South Africa, courtesy of the Ford Foundation. More about that next week though.

Justice Yacoob insisted it would help to facilitate an honest conversation if I dropped the title “Justice” and call him Zak; a refreshing attitude in a sector where formality can choke you like the stench of a dirty, smelly sock that hadn’t left a sports bag for weeks.

At breakfast, before the conference started, Zak and I talked about the value of constitutional supremacy.

He remarked that our jurisprudence is useful only if judgments are complied with, and the supremacy of the constitution is respected by other branches of government.

“Do you worry that Parliament and the executive don’t respect constitutional supremacy?”

“They do!” he responded, before chuckling, and then vaguely adding: “But sometimes Parliament thinks it can define the separation of powers! The constitution makes the boundaries clear.”

I then challenged him: “Zak, you guys sometimes make Parliament feel like it has greater constitutional authority than you when you don’t fully use your own powers as a Constitutional Court.

Take the same-sex marriage case several years ago. Why on earth did you say, on the one hand, that gay people should be allowed to get married, but then tell Parliament it has a year to re-word the existing laws?

Only Justice Kate O’Regan took equality and dignity seriously enough by arguing in a lonely minority report that gay people should be able to get married immediately by simply demanding that the state henceforth read into the marriage regime language that is gender neutral.

The rest of you deferred to Parliament. You played politics rather than entrenching constitutional supremacy. Why then be surprised if Parliament doesn’t always get constitutional supremacy?!”

Our host, who had asked me to facilitate the day’s programme, chuckled a little awkwardly.

I felt sorry for her and feared that she might regret having asked me not to be shy about pushing the envelope.

What happened next pleasantly shocked me. Zak responded instantly and with a completely unfazed tone (and granting me permission to quote him): “Funny enough, Eusebius, I re-read that judgment just three weeks ago. Kate’s minority position was dead right. I cannot for the life of me work out why I did not agree with her. I should have!”

This post-retirement confession matters for at least three reasons.

First, it shows that, despite being the final court on constitutional matters, judgments from the Constitutional Court are not immune to criticism and revision. Bad precedents can be set in apex courts that are difficult to reverse.

Second, there is a need to create social space for, on the one hand, yes, respecting judgments so that laws can be predictable for a functioning society, but, on the other hand, without us revering lawyers, including Constitutional Court judges, as infallible.

Third, as with the trade of journalism, administering law is not a wholly objective process.

As a judge’s life unfolds, so her values and experiences meander and inform her reading and interpretation of the law. This is not to confuse judging for arbitrary exercise of power. It is reason-bound and rule-based, with safeguards built into the process to maximise fairness and justice being served. So judges, if they do their jobs properly, have authority and not mere legal power.

But for too long have local jurists pretended they can divorce their personal lives from their work. Zak explicitly denied this to even be possible, in a speech later that morning.

And Justice Edwin Cameron’s new book, Justice, powerfully draws connections between personal biography and law-making without creating a legitimacy crisis for judges.

I now wait for the next constitutional confession: that sex work should have been decriminalised by now, and the use of marijuana be allowed. But let me not get ahead of my dope, liberal self.

* Eusebius McKaiser’s new book Could I Vote DA? A Voter’s Dilemma is available countrywide.

** The views expressed here are not necessarily those of Independent Newspapers.

The Star