John Didcott

John Mowbray Didcott (14 August 1931 – 20 October 1998) was a South African judge who served in the Constitutional Court of South Africa from February 1995 until his death in October 1998.

Didcott was born on 14 August 1931 in Durban in what was then the Natal Province.

His father, John Leonard Didcott, a medical doctor and Rhodes Scholar, died in 1942 during his childhood.

He matriculated at Hilton College in 1948 and attended the University of Cape Town, where he completed a Bachelor of Arts in 1951 and a Bachelor of Laws in 1953.

During his last year as a student, he received the Abe Bailey Trust's Travel Bursary for travel to the United Kingdom.

As a student during the early apartheid period, Didcott was active in progressive student politics: elected to the student representative council in his first year in Cape Town, he served as its president from 1952 to 1954, and he was president of the National Union of South African Students from 1953 to 1954.

Chief Justice Ismail Mahomed, who was a student during the same period, described him as a charismatic politician, and he was known as a skilled public speaker; his debates against Zach de Beer and Sharkey King frequently packed the university's Jameson Hall.

In 1953, he was a founding member of the Liberal Party of South Africa.

He was admitted to the Bar in Cape Town on 26 February 1954, but did not enter practice; instead, he spent a year as a legal reporter for the Cape Argus, covering the Supreme Court of South Africa.

He left that position in 1955 to join a delegation of the International Student Conference on a tour of universities in southeast Asia.

He entered legal practice in 1956 as an advocate, leading a successful commercial law practice in Durban and taking silk in 1967.

In July 1956, Didcott returned to his hometown to establish chambers at the Durban Bar.

He practised there for the next two decades, with the exception of several months in 1960, when, during the state of emergency that followed the Sharpeville massacre, he fled briefly to Southern Rhodesia to avoid the attention of the security police.

He had a successful commercial law practice in Durban, and he took silk on 19 July 1967.

He was also chairperson of the Natal Bar from 1973 to 1975.

From 1973 to 1975, he was the chairperson of the Natal Bar, and he was twice as an acting judge of the Supreme Court's Natal Provincial Division: first in February 1971 and then from April to June 1975.

He joined the bench in 1975 as a judge of the Natal Provincial Division, where he was known for defending human rights during the apartheid era.

Born in Durban, Didcott became active in anti-apartheid politics at the University of Cape Town, where he was president of the National Union of South African Students.

Between June 1975 and October 1994, Didcott served as a judge of the Natal Division of the Supreme Court of South Africa, where he was particularly reputed for his progressive judgments in public and administrative law.

Eschewing textualist interpretation of apartheid legislation, he handed down various judgments in favour of individual rights and the political freedoms of the anti-apartheid movement.

He was a vocal opponent of capital punishment and famously never handed down a death sentence.

On 16 June 1975, at the comparatively young age of 43, Didcott joined the Natal bench permanently as a judge of the Supreme Court.

Unlike some other opponents of apartheid, he was not averse to serving in its judiciary.

In 1983, when legal scholar Raymond Wacks encouraged all "moral judges" to resign in protest, Didcott articulated his view on this subject in the Sunday Tribune, writing that: "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."During his 19 years in the Supreme Court, Didcott was reputed as "temperamental and irascible", or, by his admirers, as "intolerant of mediocrity".

Among the counsel who appeared before him in Natal, Chris Nicholson described him as "like a chess Grand Master, simultaneously playing a number of matches with counsel", and Pius Langa recalled that, "some loved him intensely. Others feared him. They did not want to appear before him because he was capable of ripping them apart; such was his sharpness."

Didcott wrote several significant judgments in civil cases, including Roffey v Catterall, on the onus of proof in restraint of trade disputes. However, he was best known for his judgments in public law and human rights law, particularly those involving apartheid legislation and the treatment of anti-apartheid activists.

From August to December 1984, Didcott was a visiting scholar at the Columbia Law School in New York, and that trip to the United States cemented his support for the development of a South African bill of rights akin to the American one.

In subsequent years, he advocated publicly for a bill of rights to be devised, though he also warned that a bill of rights should not "protect private property with such zeal that it entrenches privilege", nor "make the urgent task of social or economic reform impossible or difficult to undertake".

Among other things, he overturned a banning order against activist Fatima Meer, and in 1986 he handed down judgment in the earliest legal challenge to the nationwide state of emergency instituted by the government in the aftermath of the Vaal uprising.

In the later case, brought by the Metal and Allied Workers' Union, he upheld various emergency regulations but struck down several limitations on subversive speech and ruled that persons arrested under the state of emergency must be given access to a lawyer.

The following year, Didcott overturned a government ban on foreign donations to the United Democratic Front, then the country's foremost anti-apartheid organisation.

Didcott was also openly critical of the government of President P. W. Botha and his predecessors, especially on the grounds that they usurped judicial powers and undermined the rule of law; observers believed that these statements ruled him out of contention for elevation to the Supreme Court's Appellate Division.

Alongside a small number of other judges, such as John Milne and Michael Corbett, Didcott was regarded as maintaining "the minority position of ameliorist sensitivity to liberty wherever possible", despite the apartheid context.

One of his most notable judgments was S v Khanyile on the right of accused persons to legal representation; he held that, if a trial without representation would be grossly unfair, a presiding judge should go so far as to order that the accused receive legal aid.

Khanyile was overturned by the Appellate Division in S v Rudman; S v Mthwana.

Didcott was also a well-known opponent of capital punishment; he was an overt supporter of the Society for the Abolition of the Death Penalty.

Although prevailing legislation imposed the death penalty as a mandatory sentence in a broad range of circumstances, he – unusually among apartheid judges – never sentenced to a defendant to death, always ascertaining extenuating circumstances that justified a lighter penalty.

His friend Jack Greenberg later recalled that, "When I asked him how he could maintain that record, he said he always found a reason. I said, 'What if you weren't able to find a reason?' and he said, 'Then I'd resign.'''

After the first post-apartheid elections of 1994, and on the advice of the Judicial Service Commission, newly elected President Nelson Mandela appointed Didcott to the inaugural bench of the Constitutional Court of South Africa.

He served there for less than four years before his death from leukaemia in 1998.