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Release: Jan. 30, 2003

South African High Court Justice Discusses Post-Apartheid Law

In a post-apartheid South Africa, the University of Michigan’s affirmative action case now before the U.S. Supreme Court would be easy to decide, according to a justice on the nation’s Constitutional Court.

“Our constitution recognizes the grave inequalities in South African society in the past,” said Justice Zak Yacoob. “It has a provision that recognizes that measures designed to advance those persons who suffered past discrimination are legal. Michigan would easily win its case if a similar provision were in (the U.S.) Constitution.”

Yacoob spoke to a gathering of UI College of Law faculty in the Boyd Law Building Wednesday afternoon, the guest of law professor Adrien Wing. Yacoob, a South African of Indian descent who is also blind, is a former anti-apartheid lawyer and activist who was appointed to the South African Constitutional Court in 1998. The court, South Africa’s highest, is charged with interpreting the country’s first post-apartheid constitution, which was adopted in 1996.

Yacoob said the court has played a significant role in helping South Africa reconstruct a more equitable and just society from the rubble of the racist apartheid regime since it replaced the country’s old apartheid-era appeals court system in 1996. For instance, in one of the first cases it heard, the court struck down the country’s death penalty as incompatible with the new post-apartheid South Africa because it is opposed to the 1996 constitution that seeks to instill life, dignity and equality as the highest values of the new South Africa.

“The state had to demonstrate by example that peace and non-violence were an important value in the society we were building, and that could not be achieved with a death penalty,” Yacoob said.

Yacoob said the new court also has symbolic value in that it is the first major South African public institution that did not exist during the apartheid regimes.

“There was a concern the old court system would not achieve a sufficient break with the past, so the new Constitutional Court signals a decisive break with those days and the creation of a new order,” he said.

While visiting the College of Law, Yacoob also met with students and spoke to law classes.