Eason Weinmann Lecture: Rebuilding S.Africa Hinges on End to Poverty

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 2004.

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.”

The 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.