It is with great sadness that I heard the news of Laurie’s passing whilst attending a conference on constitutional justice in Bogotá, Colombia.
Laurie has had an enduring relationship with Stellenbosch University and its Law Faculty. He obtained his BA degree (cum laude) from Stellenbosch University. After obtaining his BA honours in jurisprudence as a Rhodes Scholar at Oxford University in 1954, he returned to Stellenbosch University to complete his LLB. With the first glimmerings of the transition to constitutional democracy in the late 1980’s, Laurie was instrumental in establishing the H. F. Oppenheimer Chair in Human Rights Law in the Stellenbosch University Law Faculty. At the time, he was a sitting judge on the old Transvaal Provincial Division of the Supreme Court. The establishment of the Chair was a visionary move, enabling the Law Faculty to contribute to human rights research, teaching and advocacy in the lead up to, and subsequent to the transition to constitutional democracy in 1994. In 1987, Laurie was invited to become the first incumbent of the H. F. Oppenheimer Chair in Human Rights Law. Then State President, P.W. Botha refused Laurie permission to retire from the Bench. He proceeded to resign from the bench to take up the Chair, forfeiting his pension and other judicial benefits. He occupied the Chair until the end of 1992 when he resumed his judicial career. During his period as Chair, he established human rights law as a field of research and teaching, as well as a focal point for constitutional law public impact initiatives within the Law Faculty. He was a visiting scholar at the Columbia University Law School in New York and at the Max Planck Institute for Comparative Public Law in Heidelberg. He also served as a judge on the Lesotho Court of Appeal and on the post-independence Namibian Supreme Court. During this period, he was also actively involved in research and deliberations on a future constitutional dispensation in South Africa. For example, in 1989, Laurie was part of a group of constitutional lawyers who participated in discussions with the then ANC-in-exile on a future South African Constitution.
In 1994, he was appointed by President Mandela to the first Constitutional Court of South Africa, retiring in 2004. During his period on the Court (headed by the late former Chief Justice Arthur Chaskalson), Laurie made a seminal contribution to laying the foundations of South Africa’s post-apartheid constitutional jurisprudence. For present purposes I will highlight two significant jurisprudential contributions. The first is a judgment co-authored with Justice Richard Goldstone in Carmichele v Minister of Safety and Security [2001] ZACC 22. This judgment held that the Constitution establishes an “objective normative value system” which requires all law, including the common law, to be interpreted and developed so as to be consonant with this value system. The judgment in Carmichele catalysed the development of South Africa’s law of delict to provide a remedy to survivors of gender-based violence where State authorities had failed in their duty to protect women’s rights to be free from all forms of violence. This values-based judicial reasoning also exemplified an approach to constitutional interpretation which was in stark contrast to the formalism and legal positivism which characterised the apartheid legal culture.
The second strand of Laurie’s jurisprudence I will highlight concerns the development of South Africa’s equality jurisprudence. In a landmark judgment penned by Justice Ackermann in 1998, National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15, the Court declared various statutory offences and the common law offence of sodomy as it pertained to sexual conduct between consenting adult men unconstitutional. The Court held that these laws infringed the rights to equality and non-discrimination on the grounds of sexual orientation as well as the right to privacy in the Bill of Rights. In this judgment, Ackermann J placed the value of human dignity at the centre of South Africa’s equality jurisprudence, holding that the criminalisation of the sexual expression of gay men represented a profound impairment of their dignity, personhood and identity.
Eleven months later, in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17, the Court declared unconstitutional a provision in immigration legislation that denied the benefits it afforded married couples to gay and lesbian couples in permanent same-sex life partnerships. In his judgment for a unanimous Court, Justice Ackermann held that the provision conveyed the message that gays and lesbians lacked the inherent humanity to have their family lives respected or protected and constituted a serious invasion of their dignity. As such it constituted unfair discrimination on the intersecting and overlapping grounds of sexual orientation and marital status.
These judgments were fundamental to the evolution of South Africa’s jurisprudence gradually extending equal rights to gay and lesbian relationships. They were also foundational to the broader equality jurisprudence of the Constitutional Court, and illustrate the centrality of human dignity as a value to Justice Ackermann’s jurisprudence.
After his retirement from the Court in 2004, Laurie founded the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) at the University of Johannesburg. In 2012, he authored the monograph Human Dignity: Lodestar for Equality in South Africa published by Juta & Co. In this significant work, he developed the philosophical and normative implications of human dignity as a central value in equality jurisprudence. He also illustrated the practical applications of human dignity to various areas of law, particularly the horizontal application of the Bill of Rights to private actors.
Laurie was awarded an honorary doctorate by Stellenbosch University in recognition of his monumental achievements as a judge, scholar, and contributor to constitutional democracy in South Africa. He was also elected an Honorary Fellow of Worcester College, Oxford University. He remained until his death an Extraordinary Professor in the Department of Public Law at the University of Stellenbosch.
On a personal level, Laurie was a generous friend and mentor to me when I became the third incumbent of the H.F. Oppenheimer Chair in Human Rights Law in 2004. He was an enthusiastic supporter of the Annual Human Rights Lecture series which I initiated and organised. He also participated actively in seminars and other events organised by the Department of Public Law and the Faculty.
Laurie’s towering intellect, his passion for constitutional democracy, his razor-sharp wit, and wicked sense of humour will be sorely missed by all of us in the Law Faculty. We extend our deepest condolences to his beloved wife, Denise, as well as his children and grandchildren.
Sandra Liebenberg
Distinguished Professor and H.F. Oppenheimer Chair in Human Rights Law
27 May 2024