John Mowbray 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. 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. He entered legal practice in 1956 as an advocate, leading a successful commercial law practice in Durban and taking silk in 1967. He was also chairperson of the Natal Bar from 1973 to 1975.

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.

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.

Early life and education 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. 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; 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. or, by his admirers, as "intolerant of mediocrity".

Jurisprudence

In his celebrated work on the judicial process, Ronald Dworkin illustrated the implications of legal theory by the use of a model judge, Hercules J Hercules, who is able to take legal precedent seriously, while developing the law in harmony with its proclaimed values and commitments, no matter how complex the case. In real life such a task is almost unattainable in every situation. But if ever South Africa had a Judge Hercules on the Bench during the past 20 years, including the worst of the apartheid era, it was John Didcott. His commitment to principle, intellect, integrity and courage over a sustained period of judicial office represented a beacon of hope when many questioned the role of law in the country. — Judge Dennis Davis on Didcott's jurisprudence on the onus of proof in restraint of trade disputes. 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. 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; 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,

From August to December 1984, Didcott was a visiting scholar at the Columbia Law School in New York,

Statutory interpretation

Because of his "innovative" interpretation of apartheid legislation, Didcott was sometimes subject to the criticism – as paraphrased by David Dyzenhaus – that he "was in dereliction of his duty because in order to establish his unblemished record, he had to lie about the law", trenching on parliamentary sovereignty. The In re Dube judgment was admired both by Justice Richard Goldstone and by Chief Justice Arthur Chaskalson; indeed, Goldstone later said that Didcott was his judicial "role model".

Post-apartheid transition Following the negotiations to end apartheid, Didcott was a member of the Special Electoral Court that handled disputes arising during South Africa's first post-apartheid elections on 26 April 1994. but he was shortlisted and interviewed by the Judicial Service Commission in October 1994. Thereafter, on the recommendation of the Judicial Service Commission, he was one of six additional judges appointed by Mandela, and he left the Supreme Court on 12 October 1994. During his brief tenure in the apex court, he wrote a large number of minority judgments, concurring with very few opinions written by other justices. He was also known for writing brief judgments: the Mail & Guardian reported complaints of the court that, "They can never get it right. You either get a two-page fiat from Judge Didcott or a 100-page treatise from Judge Ackermann".

Didcott wrote seven majority judgments on behalf of the Constitutional Court: S v Ntuli, Luitingh v Minister of Defence, Case v Minister of Safety and Security, Ynuico v Minister of Trade and Industry, Mohlomi v Minister of Defence, JT Publishing v Minister of Safety and Security, and S v Vermaas; S v Du Plessis. Notably, S v Vermaas restored the accused's right to legal representation, effectively redeeming Didcott's 1988 Supreme Court judgment in Khanyile.' He wrote:South Africa has experienced too such savagery. The wanton killing must stop before it makes a mockery of the civilised, humane and compassionate society to which the nation aspires, and has constitutionally pledged itself. And the state must set the example by demonstrating the priceless value it places on the lives of all its subjects – even the worst.

Death and personal life Seriously ill with leukaemia, Didcott was absent from court for most of 1998, and he died on 20 October 1998 at his home in Durban.

He was married to Pam Didcott and had two daughters.

Awards and honours

Didcott was made a Doctor of Law honoris causa'' by the University of Natal in April 1991, by the University of Cape Town in June 1991, and by the University of the Witwatersrand in April 1992. He was chancellor of the University of Durban–Westville from 1988 to 1993 and an honorary professor of procedural and clinical law at the University of Natal from 1989.

Selected publications