As I write it, I realise that I have chosen the title of this post deliberately, trite as it may be. In memory. Is that not where we are? And what we are in mourning? Memories. And, moreover, of justice. Those who know, tell us that mourning is the business of memory. In mourning we are in memory — in remembrance of the Other who is irretrievably and irreplaceably lost, who is, from now on, for us only to the extent that they are in us as memory? This is how Justice is done to the Other — in memory.


Wednesday. It is a cold and rainy Cape Town morning. I am walking down the corridor of my department at the faculty of law, in (my) mourning, I suppose, one might say; in memory, in any event. (Are we not always already in mourning, asks Derrida.) Last night, I dreamt that an important person had died. When I woke up I could not remember who it was that died in my dream. My colleague who is organising a conference on the judicial legacy of Pius Langa emerges from his office. We meet in the corridor. In the recent past, we have spoken often and at length about the upcoming conference. There is a pause before he asks me whether I have seen that Justice Langa died this morning at the age of 74. It was on the news.

When one is told about the death of a great spirit, of the death of one who one has admired, even revered, one does not want to believe. One does not want to believe that such greatness can depart from the world. And yet, this is the inescapable fate of all physical bodies that temporarily reside, as the Hegelians say, in the Spirit. So we must believe, which is to say, accept. I drift to the office of my colleague in another department. His phone is ringing off the hook. The press: a sound bite, if you please. We talk about what there is to say; about saying precisely when one does not know what to say. For the sake of memory. About being affected, about being in affect by this death, despite the fact that we did not know Pius Langa personally. On the way back to my office, I am reminded of Derrida’s problematisation: is mourning not precisely the grief one feels for the one that one does not know, for the unfamiliar stranger, for the unfamiliar in even the one most familiar to us?


I do not know how many times, including on this blog, I have written a variation of the following:

The South African transition has been hailed all over the world as an exemplar of peaceful transition from totalitarian to democratic rule. Given that the terms of the transition were directed, from the outset, through the prism of a constitution, United States scholar Karl Klare has termed South Africa’s transition “transformative constitutionalism”. Klare describes this process as in the first place, a long-term project committed to a future of “large scale, egalitarian social transformation” “through non-violent political processes grounded in law”. He envisages for South Africa a transformation “vast enough to be inadequately captured by the phrase ‘reform,’ but something short of or different from ‘revolution’ in any traditional sense of the word”. In an address entitled “Transformative Constitutionalism” delivered at the Stellenbosch law faculty in 2006, former chief justice Pius Langa located the origin of transformative constitutionalism in the postamble of the interim Constitution and plainly described what he understands transformative constitutionalism to be. Referring to the postamble, he stated: “This is a magnificent goal for a Constitution: to heal the wounds of the past and guide us to a better future. For me, this is the core idea of transformative constitutionalism: that we must change.” “Transformation is a permanent ideal, a way of looking at the world that creates a space in which dialogue and contestation is truly possible, in which new ways of being are constantly explored and created, accepted and rejected and in which change is unpredictable but the idea of change is constant. This is perhaps the ultimate vision of a transformative, rather than a transitional Constitution. This is a perspective that sees the Constitution as not transformative because of its peculiar historical position or its particular socio-economic goals but because it envisions a society that will always be open to change and contestation, a society that will always be defined by transformation.”

Langa went on to highlight the massive socio-economic transformations that still need to happen in South Africa, stating that “the levelling of the economic playing field” is “absolutely central to any concept of transformative constitutionalism”. He then described a direct link between transformation and reconciliation, stating: “Transformation is not something that occurs only in court rooms, parliaments and governmental departments. Social transformation is indispensable to our society. In South Africa — it is synonymous with reconciliation. If there is no reconciliation between the people and groups of South Africa we will simply have changed the material conditions and the legal culture of a society that remains fractured and divided by bitterness and hate.” Langa went on to say that “[t]here is no right way to deal with the immense violation that was apartheid. But, as a society, we must keep alive the hope that we can move beyond our past. That requires both a remembering and a forgetting. We must remember what it is that brought us here. But at the same time we must forget the hate and anger that fuelled some of our activities if we are to avoid returning to the same cycle of violence and oppression.”

Memory, then. And the memorial words of a man whose legacy, whose justice (expressed so powerfully in the words above) we cannot afford to forget. And Tennyson’s famous memory poem comes to mind:

Let knowledge grow from more to more,

But more of reverence in us dwell;

That mind and soul, according well,

May make one music as before


In memoriam: Justice Pius Langa (1939-2013)


  • Jaco Barnard-Naudé is Professor of Jurisprudence and Co-director of the Centre for Rhetoric Studies in the Department of Private Law at the University of Cape Town. In the United Kingdom, he is the British Academy's Newton Advanced Fellow in the School of Law at Westminster University and Honorary Research Fellow at the Birkbeck Institute for the Humanities, University of London. He is a board member of the Institute for Justice and Reconciliation (IJR) and of the Triangle Project, Cape Town.


Jaco Barnard-Naude

Jaco Barnard-Naudé is Professor of Jurisprudence and Co-director of the Centre for Rhetoric Studies in the Department of Private Law at the University of Cape Town. In the United Kingdom, he is the British...

Leave a comment