John Didcott

John Mowbray Didcott (1931–1998) was a South African lawyer, judge and a Justice of the Constitutional Court of South Africa from the court's opening on 14 February 1995 until his death. Didcott was known for his firm support of human rights during 23 years on the bench in and after the apartheid era.

Didcott was born on 14 August 1931 in Durban. After matriculating at Hilton College, near Pietermaritzburg in 1948 he went to the University of Cape Town (UCT) where he obtained a BA in 1951 and an LLB in 1953. At university he involved himself in student politics and gained a reputation as a powerful public speaker. He was twice elected president of the UCT Students' representative council (SRC) and later became President of the National Union of South African Students (NUSAS). Didcott was a founder member of the Liberal Party of South Africa, which brought him to the attention of the security police.

In 1953 he was awarded an Abe Bailey Travel Bursary to the United Kingdom. He was also a member of the team representing the International Student Conference, which visited universities in Southeast Asia for six months in 1955 and 1956.

After graduating, Didcott was admitted to the Bar in Cape Town on 26 February 1954, but then joined the Cape Argus for a year as Supreme Court reporter. That experience alerted him to the difficulties and challenges faced by journalists and the media, and he was always an avid reader of newspapers, although often critical of their shortcomings.

In July 1956 Didcott moved to Durban to set up chambers. Shortly thereafter (during the 1960 State of Emergency he was tipped off that the security police planned to detain him for his political activities, and he fled the country to Southern Rhodesia, where he spent some months as a prosecutor until it was safe to return. He returned to the Durban Bar where he built up a successful legal practice. He took silk (appointed a Senior Counsel) on 19 July 1967 and was Chairman of the Bar from 1973 to 1975. He served as an acting judge of the Natal Provincial Division in 1971 and again in 1975. In June 1975, at the comparatively young age of 44, he was invited to take an appointment as a judge. For someone with strong liberal principles it involved careful thought. He had to balance the problem of administering apartheid legislation with the possibility of making a difference on the Bench and somehow helping to alleviate the impact of unjust laws. Convinced of the useful contribution he could make, he accepted. However, his decision and that of like-minded judges -was publicly challenged some years later when Natal University law professor Raymond Wacks urged that all 'moral judges' should resign. Judge Didcott had no time for this view.

It might be a fine protest, but it would soon dissipate, and the vacancies would be filled by people who had no qualms about injustice. If we argue that moral judges should resign, we can no longer pray when we go into court that we find a moral judge on the bench.

In 1994 he became a member of the Special Electoral Court for South Africa's first fully democratic general election in 1994 and later that year he was appointed to the Constitutional Court.

In April 1991, in recognition of his contribution to the University and of his attempts to promote justice in an unjust society, the University of Natal awarded the degree of Doctor of Laws, Honoris Causa to him. His contribution to law and society was also recognised by the University of Durban-Westville, which made him its Chancellor in 1989. He also received honorary degrees from the University of Cape Town and the University of the Witwatersrand.

Didcott was also appointed as an honorary professor in the Department of Procedural and Clinical Law at the University of Natal in 1989.

Judge Didcott served on the Constitutional Court from its inception in 1994 until his death in 1998. He died on 20 October 1998, after a battle with cancer.

Didcott was the one judge on the South African bench who never sentenced anybody to death. When asked how he could maintain that record, he said he always found a reason, questioned further on if he was not able to find a reason, he responded, 'Then I'd resign.'

Prof. Jack Greenberg of Columbia Law School, an authority on civil rights law, said

The fact that he was selected for the Constitutional Court having been a judge under apartheid, indicates that the African National Congress, which is now South Africa's ruling party, and Nelson Mandela, the post-apartheid President, recognized him as a beneficient (sic) and humane judge who did all he could do under the circumstances during apartheid.

In S v Khanyile and Another 1988 (3) SA 795 (N), Didcott J (sitting with Friedman J) considered the rights of an accused to legal representation and emphasised the role of the Bench in assessing the totality of circumstances to decide if gross unfairness would result if an accused is not represented. The judgment went as far as to say that if the judge concluded that a trial without representation would be grossly unfair, he should refer the case at once to those administering the legal aid scheme or similar organisation and should refuse to proceed with the trial until representation was procured.

In S v Mthwana 1989 (4) SA 361 (N) a full Bench (consisting of Howard JP, Booysen and JH Combrink JJ) of the division criticised and effectively overruled the decision in Khanyile, which had already been criticised in other divisions. The Appellate Division sided with Mthwana.

Perhaps ironically, Didcott J, sitting in the Constitutional Court in S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC), had the last word in holding that the controversy 'has been settled decisively by our new Constitution, the Constitution of the Republic of South Africa Act 200 of 1993, s 25(3)(e)' that essentially codified the principles advanced in Khanyile

Under the apartheid system the law had become a corrupt system. The legal system in South Africa had been in the great tradition, with its roots in Roman-Dutch law and the common law of England. But when the National Party (South Africa) won power in 1948, it quickly began to distort the system to formalise racial discrimination and entrench itself in power. A judgement by Didcott shows he was a man of compassion, with a true sense of justice.

You are an idle person if you happen to be what the law calls a Bantu and you have had no lawful employment for 122 days or more during the past year. True, there are some exceptions. Your employment is not held against you if you are younger than 15 or as old as 65. Otherwise it does not matter whether you actually need work and its rewards. An official who has reason to believe that you belong to the class of 'idle persons' may arrest you at any time and any place ... and bring you before a commissioner. He calls on you to give a good and satisfactory account of yourself. Unless you manage to do so, he formally declares you to be an idle person. Nobody is required to prove that you match the definition. You must prove you do not. Once you are officially 'idle', all sorts of things can be done to you. Your removal to a host of places and your detention in a variety of institutions, can be ordered. You can be banned from returning to the area where you were found although you may have lived there all your life. When the commissioner has finished with you, the papers in your case go to a judge of the Supreme Court. He is expected, if everything is in order, to certify that what happened to you was 'in accordance with justice.' The trouble is that it was not. Parliament has the power to pass the statutes it likes, and there is nothing the courts can do about that. The result is law. But that is not always the same as justice. Dube is 24. He is an epileptic who suffers from frequent fits. He needs constant medication. The question is whether Dube is capable of being employed. If not, he falls outside the section of the law. That in my opinion is indeed the case. The proceedings were therefore contrary not only to justice but to the Act as well, with the result that, on this occasion at least, it is possible to apply the Act and to do justice simultaneously. The declaration stamping Dube an 'idle person' is set aside.

• Installation address delivered on Friday, 12 May 1989. University of Durban-Westville. 1989. ISBN 978-0-947445-03-4. 
• Salvaging the Law. Johannesburg: Centre for Applied Legal Studies, University of the Witwatersrand. 1988. ISBN 978-1-86814-095-4. 
• O'Dowd, Michael C (1954). John M. Didcott, ed. The African in the Universities. (2 ed.). National Union of South African Students.