November 30, 2017
Law School Dean David Meyer with Justice Johann van der Westhuizen and Tulane Law Professor Vernon Palmer.
Justice Johann van der Westhuizen, a former judge of the
Constitutional Court of South Africa, reflected on his native country’s
unfinished transition to a racially just society in this year’s Eason Weinmann Lecture
on International and Comparative Law.
The justice’s lecture, Can
a Constitution and Law Heal History? Comparative Reflections from Apartheid and
Slavery, dove into the complexities of how nations rebuilding from
apartheid, slavery, or other forms of entrenched injustice can use the law to
repair years of atrocities and disenfranchisement.
Van der Westhuizen played a prominent role in South Africa’s
post-apartheid transformation. As a law
professor and director of the University of Pretoria’s Center for Human Rights,
Van der Westhuizen fought against apartheid by litigating a series of landmark human
rights cases against the regime. After
the collapse of apartheid, he played a key role in drafting South Africa’s
constitution and was later appointed to the country’s Constitutional Court in
Van der Westhuizen said that remediating entrenched racial
injustice often required excrutiatingly hard choices in drafting and later
interpreting South Africa’s new constitution.
In order to uncover the truth about rampant killings and
atrocities during the apartheid era, Van der Westhuizen said, it required
amnesty to induce those responsible to come forward.
“It’s a very difficult thing to say that the person who
killed your family can go free, but it was often the only way to find truth.
One could argue we would never have known what happened to many of them had we
not offered amnesty,” Van der Westhuizen said. “And with compensation, there
simply wasn’t the money for it.”
Van der Westhuizen said that cases of amnesty for
politically motivated crimes, land restitution and affirmative action brought
resolutions through the new constitution in South Africa, which he called not
only the supreme law of the land but the “autobiography of a nation.” He said
he and others shaping the nation’s highest law feared that their failure would
result in disenfranchisement and make meaningless the struggles of Nelson
Mandela and the country’s majority black citizens.
“Failure was not an option, so in such cases we had to do
what would help bridge and unite the country,” Van der Westhuizen said. “Some
decisions were not easy ones.”
Van der Westhuizen was a member of the South Africa’ highest
court for 12 years until his non-renewable term expired in 2016. Before that,
he was appointed by President Mandela as a judge in the North Gauteng Division
of the High Court in 1999. He wrote judgments on a wide range of issues, from
constitutional matters like privacy, equality, free expression, tort and labor
laws, to the protection of women and children.
Since retiring from the Constitutional Court, Van der
Westhuizen has served as Judicial Inspector of South Africa’s prisons, where he
has aggressively pressed for reforms to ensure the lawful treatment of
inmates. During his three-week visit at
Tulane, Van der Westhuizen taught a course on Human Rights and
Constitutionalism and joined a visit by Professor Katherine Mattes and students
in her Criminal Law Clinic to Louisiana’s Angola Prison.
As he ended his lecture, Van der Westhuizen emphasized that
the most important issue to be resolved following class struggles like South
Africa is poverty and economic injustice.
“Without redistributing land, without solving the issue of
poverty there can be no real justice,” he said. “This is what people care most
about. How will they live, eat, educate their children? Those are the issues
that must be solved.”
Eason Weinmann Center for International and Comparative Law is named for
Virginia Eason Weinmann and Ambassador John Giffen Weinmann (L’52) one of
Tulane Law School’s most distinguished graduates whose name the law school
bears. Thanks to their generosity and continued support the center was created
in 1981 and has grown into an internationally recognized powerhouse for
foreign, comparative and international research and teaching.