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Law Under Apartheid

I: A first encounter with the law

My first encounter with the law was at the funeral of my elder sister Laura, just before I turned eight. In the back row of the Avbob chapel in Rebecca Street, Pretoria, my father sat stiffly between two uniformed prison guards. They had slipped in discreetly late, after family and friends were already settled. My sister Jeanie and I, uncertain whether he would be allowed to come, squirmed round from our front-row seats alongside our mother to snatch a glimpse. He gave no signal in return. Despite the desperate reaches to which his alcoholism often took him, he carried himself with a natural dignity, and sat silently, motionless, between his captors.

Why he was in prison was not clear to us. There was so much else to deal with. Laura – the brilliant eldest child, about to enter high school, felled on a bicycle trip to the corner shop by a delivery van. It was Jeanie’s eleventh birthday, the twelfth of January, and Laura had set out to buy golden syrup to bake cookies for a treat. A hot January afternoon in Pretoria cracked, life-swervingly, by the news, breathlessly brought by a neighbour’s son, that she lay lifeless at the stop street below my aunt Lydia’s house. There followed a harrowing succession of callers at the house, some kindly leaving envelopes with small sums of money. The next week, Jeanie and I were due to return to the children’s home in Queenstown, where she and Laura and I had spent the last bleak year.

The events were enough to split off an internal part of my engagement with the world. In the days after Laura’s death, unlike my mother and Jeanie, who lay in the darkened back bedroom of my aunt’s house, sick from shock and grief, I felt no pain. Only numb denial. Over the next years, instead of mourning, I withdrew into what seemed like the safety of a crabbed inner space. I reinvented myself in the guise of a clever schoolboy who, despite family tragedy, managed to excel at school. That my father was in Zonderwater, and had arrived late for Laura’s funeral between two prisons guards, was a far distant detail.

I imagined that Zonderwater was a rehabilitation centre for alcoholics. That must be why he was there. My mother did not discourage this belief. Perhaps she encouraged it. Only much later did I realise that he was serving a jail term for car theft.

This first encounter with the law, as it held my father captive to exact accountability for a wrong he had committed against society, left in me a deep layering of thought and emotion. What was the law? In what lay its power? Was it only an instrument of rebuke and correction and subjection? Or could it be more? I did not know it then, but this vivid encounter imprinted and impelled my future life and career.

II: A second encounter with the law – and a first lesson in lawyering

My next encounter with the law was a decade later. The meeting was also dramatic, though much less personal. Jeanie and I spent the desolate years that followed Laura’s death in the children’s home. My mother eventually managed to get us out. As a boy child, in contrast to Jeanie, for whom a commercial school was deemed enough, lofty things were planned for me. My mother set her sights on nothing less than excellent schooling and, in my second year in high school, she succeeded. She got me into Pretoria Boys’ High. Then, as now, the school was a paragon of public-funded excellence. The teachers demanded concentration and hard work, and nurtured critical, open-minded thinking. They offered me a chance to change my life. With an eager hunger, I cast my entire self at it.

In January 1971, immediately after finishing high school, I was a 17-year-old conscript in apartheid’s army when the security police made a sensational arrest. The Very Reverend Gonville Aubie ffrench-Beytagh, an English immigrant who was the Dean of the Anglican Cathedral in Johannesburg, was apprehended under the Terrorism Act and locked up in solitary confinement without being charged. As his detention without trial continued, an international campaign pressed the apartheid authorities to charge him or release him. Cathedral bells throughout South Africa pealed out daily in protest. My year-long compulsory army service ground slowly by, month by month. With excited apprehension, I alleviated its tedium by following the drama of the Dean’s arrest and detention.

At last, in August, he was put on summary trial, accused of terrorist activities. The judge was an apartheid stalwart, Mr Justice Cillié, the Judge-President of the Transvaal. He presided over the tense contest in the Old Synagogue in Pretoria’s city centre. Converted to a courtroom after the Jewish community moved to the suburbs, its dark wooden dock had confined many famous political prisoners, including Nelson Mandela and those arraigned with him eight years earlier in the Rivonia Trial, and six years before that in the Treason Trial. As a young white teenager, I knew nothing about the Rivonia and Treason trials, and barely anything at all about Nelson Mandela.

The Dean’s trial during my army year was for me the start of a very slow, fitful and protracted coming to consciousness.

Defending the Dean was Sydney Kentridge, who later gained international fame for his withering cross-examination of the security policemen who bludgeoned Stephen Bantu Biko to death in September 1977. In the hot afternoons of Pretoria’s late winter, as temperatures rose before the spring rains started, I would slip away from my desk at the army’s monthly journal, Paratus, and walk the few blocks to the Old Synagogue. Conspicuous in my army fatigues, I sat in the public gallery, listening to Kentridge grilling the police witnesses.

Some had befriended the Dean, or worked their way into his confidence as his congregants; others attended meetings he addressed. Now they testified that he furthered the aims of the banned African National Congress by inciting violence and by distributing money to its supporters.

The Dean denied the charges. He virulently opposed apartheid, but insisted that his warnings that violence would inevitably result from its injustices did not amount to advocating bloodshed. One charge was that he had incited the women attending a meeting of the Black Sash, an organisation opposing apartheid, to commit violence. The meeting was at the home of its founder, Mrs Jean Sinclair, in the middle-class, white suburb of Parktown North, Johannesburg.

The charge seemed plain silly, but it was earnestly levelled. It revealed the security police’s apprehensions about the Dean’s anti-apartheid work, and that of other outspoken white critics. And history showed this concern was not misplaced. Apartheid was defeated by internal uprising, township defiance, international isolation and sanctions, a banking boycott, armed insurgency and the country’s increasing ungovernability. But its power was also sapped, crucially, by internal moral challenges to its legitimacy. Internal opponents, and the legal challenges that were part of their armoury, proved vitally important to this strand of opposition.

The Dean’s confrontation with the security police was a historic marker in that battle. And lawyers and the legal system played a central role in it.

A considerable part of the Dean’s trial was devoted to a visit that a wealthy Englishwoman, Alison Norman, paid to the Dean in 1970. She was the channel through which much-needed funds flowed for the Dean to distribute to the families of activists who were facing trial or who were already in prison – and the charge sheet named her as a co-conspirator with the Dean. The question was whether the funds she sent to the Dean were ANC funds. On an overnight train trip to Pietermaritzburg, a security policeman, Major Zwart, posing as the liberal ‘Mr Morley’, contrived an introduction to Ms Norman. The day after the train trip, according to him, after several beers and brandies in a Pietermaritzburg hotel, she tried to recruit him for the banned London-based Defence and Aid Fund, which gathered funds to help detained supporters of banned organisations and their families.

Kentridge’s cross-examination was meticulously detailed, but mesmerising. Trudge, trudge, trudge. Question by question. Seated in the stuffy upper gallery, reserved for women during orthodox religious observances, I learned my first lessons about good lawyering.

There are few flourishes and grandiose gestures. Much more grinding slog. And intense concentration on detail, amidst the high technical demands of legal form and process.

But something else also became clear as I followed Kentridge’s questions from upstairs, staring down at the inscrutable features of the Dean. If convicted, he faced a minimum of five years in jail. Kentridge’s commitment to avoiding that result, and his mastery of the minutiae of whether Ms Norman had or had not drunk brandy with Major Zwart, was propelled by an underlying, smouldering, incensed rage at the injustice of the system that was trying to imprison the clergyman.

Kentridge achieved renown as a lawyer not only because of his intellect and his mastery of the technical rules of procedure and hearsay. He made an impact because of his fervour in employing those skills against a system he abhorred. My 18-year-old self, gazing down through the upstairs railings, began to understand that effective lawyering lies in a combination of heart and mind and very hard work.

Despite Kentridge’s best efforts, Judge-President Cillié found the Dean guilty of terrorism. It was said of Judge Cillié that he had never been known to disbelieve a senior police officer. His judgment lived up to this expectation. When he sentenced the Dean to five years in prison, women in the courtroom gasped and sobbed. As he left the court, they began singing the stirring nineteenth-century English hymn ‘Onward, Christian Soldiers’. But their defiance was edged with fear. The Dean’s conviction sent a chilling warning to all outspoken internal anti-apartheid activists. Their work put them at risk of conviction for terrorism, plus a long time in jail.

III: The Dean takes his case to the appeal court

Judge Cillié did not have the last word, however. Kentridge took the case to the appeal court in Bloemfontein, then the highest court in the land. Pending the appeal, the Dean was allowed to remain out on bail.

The appeal court moved swiftly to put the Dean’s case on its roster. It came up for hearing a short while after sentence was imposed, in the very month when, freshly freed from my army service, I began my law studies in Stellenbosch, a famously beautiful university town in the winelands bordering Cape Town. I was able to attend university only because I had won an open scholarship sponsored by the mining corporation Anglo American. The scholarship covered my academic and residence fees, and gave me generous pocket money – and a first taste of material sufficiency. Between initiation procedures at my men’s residence and trying to find my feet in the lecture halls, I kept watching the newspapers for news of the Dean’s appeal.

On a hot morning in the last week of February 1972, the appeal of ffrench-Beytagh v The State was called. The hearing was in the main courtroom of the imposing 1920s appeal court building in President Brand Street, which stands opposite the Free State Republic’s beautiful nineteenth-century Raadsaal.

Chief Justice Ogilvie Thompson presided. All appeals in Bloemfontein are called with utmost attention to propriety. I learned this in the eight years, rich and experience packed, that I spent as a judge in that court from 2001 to 2008. When I arrived to take my appellate seat in January 2001, Judge Ogilvie Thompson’s reputation as a stickler for precise timekeeping and rigorous decorum still lingered in the corridors.

And, even now, the protocols instilled over decades are followed. First, the judges assigned to hear an appeal assemble in the gallery outside the courtroom. They do so five minutes before the case is to be heard, to make sure proceedings start precisely on time. At exactly 9:45, the court orderly enters the courtroom, and summons all to rise. Then with a swish he tugs the drawstring that opens a maroon velvet curtain screening the judges’ gallery from the public. The judges file in, in strict order of seniority, and take their places on the Bench – the senior judge in the middle, the next most senior to the right, and third most senior on the left, and so on.

The judges bow gravely to the lawyers and members of the public, and take their seats. The advocates, the attorneys and the public sit. The presiding judge’s registrar gets up and calls the case for hearing. After a moment of shuffling papers and pens and checking books, the presiding judge signals that counsel for the appellant may rise to address the court.

Even in Bloemfontein’s fiery Februaries, the high-vaulted main courtroom is comparatively cool. It has to be, for its severely elegant, stinkwood-panelled walls have witnessed many heated legal battles.

IV: A brave history – the 1950s appeal court confronts the apartheid government

In 1952, twenty years before the Dean’s appeal, the appeal court gave two of its most dramatic rulings. To the fury of the apartheid government, which came to power in 1948, the court under Chief Justice Centlivres declared invalid a law that stripped coloured voters in the Cape of their voting rights on the common voters’ roll. The coloured vote was the sole racially liberal remnant of the settlement that consolidated white supremacy under British authority in South Africa in 1910. Parliament had removed African voters in the Cape from the roll in 1936. Now in its quest for all-white racial purity, the apartheid government was determined to expunge even this last trace of racial commonality.

But the coloured vote was ‘entrenched’. A special parliamentary procedure had to be followed to abolish it. This demanded a two-thirds vote of both houses of Parliament, sitting together. The new government’s lawyers advised that these restrictions, which the British Parliament enacted when it passed the South Africa Act in 1909, were no longer binding on Parliament, since it was now a fully autonomous legislative body, no longer subject to the mother legislature in Westminster, England.

The logic was bad, however. The Cape Town Parliament, no matter how autonomous, could act only within the limits of the powers conferred on it at its creation. It could not invent new powers for itself, or ignore the procedural limitations by which it was constituted. Nor could it make itself into a ‘high court of Parliament’ – as it proclaimed itself after the appeal court’s first ruling against the coloured vote abolition – to reverse the judges’ decisions. That, too, flouted the foundational principles of parliamentary power. Twice, Chief Justice Centlivres’s court bravely called out the flawed logic, and threw out the bad statutes.

The rulings delayed the coloured vote debacle by four years, but the apartheid hardliners won in the end. They gerrymandered the Senate, or upper house of Parliament, by vastly expanding it, to secure the combined two-thirds majority they needed. The manoeuvre was rightly regarded as a fraud on coloured voters’ rights. In addition, they stacked the appeal court with five extra judges to ensure the court toed the line. The extra appointees weren’t necessary. In 1956 the court ruled that the Senate-packing legislation stood – and the vote was ten to one. Coloured voters disappeared from the common roll. It would be nearly forty years before a white and a coloured South African could once more stand in the same voting queue and vote alongside each other.

But the ruling in the Senate-packing case was not unanimous. One judge wrote a dissenting opinion, saying why he thought the majority was wrong. He was Oliver Schreiner, next most senior after Chief Justice Centlivres. He said that ordinarily Parliament could create any form or type of Senate it wanted using ordinary procedures. However, when it came to the protection guarding the coloured vote, which required the Senate to sit with the House of Assembly, the court had to look not at form, but at substance. In other words, the court’s job was to assess not how well the conjuror concealed the trick, but whether there was a trick. The Senate-packing legislation was a trick or fraud (Schreiner politely called it ‘a legislative plan’) designed to get round the protection afforded to coloured voters on the common roll. This was because government enlarged the Senate for the sole purpose of getting past the two-thirds majority requirement. The court should therefore strike the plan down as invalid.

Schreiner did not carry the day. His more conservative colleagues, even Chief Justice Centlivres and others sickened by the Senate shenanigan, concluded that the apartheid hardliners’ manoeuvre now passed legal muster. But, as with other powerful dissenting judgments, Schreiner’s reasoning ignited a flicker of light. His views in the Senate-packing case on substance versus form in legal devices eventually took flame, and have prevailed. To this day, they are cited in judgments. His views shape how South African lawyers approach contracts and tax havens and trusts and statutory bodies. Judges look first to see if there is a trick, not how well it is covered up.

More importantly, together with the bold earlier judgments, Schreiner’s stand left a moral and political legacy. It laid a paving stone that would eventually open a path to a constitutional future. The appeal court’s decisions striking down apartheid legislation, and the dissent in the Senate-packing case, showed what principled judges might achieve if they remain true to legal values. They can provide a bulwark for legal rights and civil liberties, even when powerful lawmakers try to undercut them.

V: The appeal court wavers in defending liberties

That brave legacy did not stand unblemished. In the decades after the coloured vote cases, the appeal court stumbled away from principle shamefully often. In one notorious case in 1964, it ruled that security police detainees, even though not yet convicted of any crime, could not, in contrast to awaiting-trial prisoners, enjoy access to books, pens and paper. Parliament did not intend, the court ruled, that security police arrestees should be allowed ‘to relieve the tedium of their detention with reading matter or writing materials’. To the contrary, the court said, the object of the legislation was to get the detainee to talk. Reading and writing went against this. So the ban was valid under the powers the statute conferred.

The detainee who went to court to claim his right to read and write was an advocate in Cape Town, Albie Sachs. A soft-spoken intellectual with a passionate commitment to a just legal system, Sachs nearly lost his life in 1988 while in exile in Mozambique, when the security police detonated a bomb under his car. But Sachs survived, and just six years after the car bomb, and thirty years after the appeal court ruled against his rights in detention, President Mandela appointed Sachs a judge in democratic South Africa’s new Constitutional Court.

The judge who wrote the ruling denying him books, pens and paper was none other than Justice Ogilvie Thompson – who, after becoming Chief Justice, now, in 1972, presided over the Dean’s appeal.

Opponents of apartheid, in South Africa and abroad, responded with furious dismay to the ruling in Rossouw v Sachs. Judge Ogilvie Thompson was condemned for bending over to please the executive at a time of ‘white fright’, when he should have stood firm in defence of vulnerable detainees. Critics pointed out that, until his ruling, South African law provided plainly that unsentenced detainees had the right to reading and writing materials. The only poser was one of legal classification: how to slot in the new category of security police detainee between the two existing categories – an awaiting-trial detainee, on the one hand, and a convicted criminal, on the other.

Apartheid critics thought the answer was obvious. Despite being a detainee in the hands of the security police, the prisoner had not yet been convicted of any crime so the awaiting-trial category should apply – therefore affording all pre-conviction rights. And indeed, when the case was first heard in Cape Town, two judges were faithful to this principled logic. They ruled that the security police had to allow Sachs to read and write while in detention.

But the police appealed against this finding. And, led by Ogilvie Thompson, five judges in Bloemfontein reversed the decision. The appeal court found in favour of the police. It said the purpose of security police detention – unlike pre-trial detention – was to extract information. This made security police detainees different from ordinary awaiting-trial prisoners. Hence ordinary rights did not apply.

Worse, Ogilvie Thompson’s judgment made a general statement. He said that in deciding cases of this sort, judges shouldn’t bend over backwards either to favour government or to protect liberties. They should take Parliament’s will, as they find it in the words of the legislation, and enforce it.

This abdicated the courts’ long-standing role as defenders of the weak and the vulnerable. And it rough-shouldered legal tradition out of the way to help the security police squeeze detainees to talk. The highest court in the land gave its blessing to the coercive power of solitary confinement and detention without trial. The judgment gave the security police wide leeway in dealing with anti-apartheid activists they arrested. It signalled to them that once they had a detainee in their grasp, the courts would be loath to supervise what they did.

In effect, the court washed its hands of those who were in security police hands. It is not far-fetched to see the results of the ruling in the dismal list of more than seventy brutal detainee deaths that took place from the mid-1960s to 1990, including many deaths the police claimed were suicides.

VI: The appeal court decides the Dean’s appeal

Now Ogilvie Thompson was Chief Justice. His imposingly tall frame rightfully occupied the high-backed, throne-like stinkwood centre seat in the main courtroom in Bloemfontein. The Dean’s fate was in his and his fellow judges’ hands. What would they decide?

The Terrorism Act was extremely wide. The statute was passed in 1967, just months after apartheid’s chief conceptual planner, Hendrik Frensch Verwoerd, was assassinated on the government front bench in Parliament. The new statute gave the security police fearsome powers against opponents of apartheid. Under the law, you participated in terroristic activities if you did anything ‘with intent to endanger the maintenance of law and order’. But, more widely even, you also committed the crime of terrorism if you took any action that ‘aided’ or ‘encouraged’ someone else to commit an act with that intent. These provisions were so wide that the threat of being prosecuted for ‘terrorism’ might shut down internal activist opposition to apartheid. A judge even vaguely inclined to help government in its war against apartheid opponents, as in Advocate Sachs’s case, could give these terms their wide ordinary meaning – and the effect would be to smother internal anti-apartheid work.

The Dean’s case was the first chance the appeal court had to pronounce on the statute’s provisions. The appeal was a marathon. Chief Justice Ogilvie Thompson and his panel heard argument from Kentridge and the prosecution lawyers over ten full court days. The lawyers pressed their contesting positions on every fact, each legal angle, every statutory nuance. Then the judges reserved their judgment. When the appeal court adjourns after hearing argument, it almost never says when its ruling will be handed down. The parties leave Bloemfontein in suspense. When judgment is ready to be delivered, the court’s registrar contacts the parties’ local attorney. Everyone waits anxiously for the phone call from Bloemfontein.

In the Dean’s case, it was five long weeks before word came. On 14 April 1972, ten days after Easter, the verdict was announced – as always, in the morning at 9:45 sharp. The judges must have laboured over the Easter weekend to finalise their judgment. The outcome was as dramatic as the Dean’s arrest, detention, trial, verdict and sentence over the previous sixteen months. Kentridge had won. The Dean was acquitted. The appeal court set aside his criminal convictions and sentence. The appellate judges disbelieved the security police witnesses whom Judge Cillié had credited.

I heard the sensational news reports of the Dean’s acquittal in Pretoria during the Easter break from my first-year law studies at Stellenbosch. I was spending the April vacation with my sister Jeanie, who was now a lodger in the home of my aunt Lydia. After a few years in the Pretoria flatland suburb of Sunnyside, we no longer had a home of our own. This was after my mother remarried, eighteen months before I finished high school, and moved to a faraway town. My bond with Jeanie, already intensely powerful after our years together in the children’s home, became more intense even. This was because, as I sat hunched over my books for my crucial school-leaving examination, Jeanie had cooked my suppers and prepared my lunches, every single day, until I left school and entered the army.

But even after I left high school, she continued to provide a home for me. When she moved into my aunt Lydia’s home, she paid board and lodging to make sure that I had somewhere to go during the university vacations. It was there that I heard the dramatic news that the Dean would no longer go to prison. He was a free man.

Later, in the law library back in Stellenbosch, I read the appeal court verdict. Chief Justice Ogilvie Thompson’s judgment was meticulously detailed and carefully reasoned. It was written in the thick judicial style of the time, when judges didn’t show much appreciation that their most important audience members are not the lawyers before them, nor even the litigants in the case – but the wider public beyond.

Wrestling with the judgment, and others even more opaque, I used to wonder why judges couldn’t write clearly and understandably. The most important job of a judgment is to be clear. The public whom it affects must be able to understand it. This lesson has, I hope, stayed with me during my own twenty years as a judge – I have tried to remember that judges write for people, not for lawyers. Any literate person should be able to follow a judgment, even if it demands effort and concentration. A lawyer’s skills should not be needed to be able to understand a judgment.

But the Chief Justice’s ruling in the Dean’s case was entirely unswayed by considerations of popular accessibility. Dense and long sentenced, it gave no glimmering of the human drama of the Dean’s arrest, the Black Sash meeting in Parktown North, and Ms Alison Norman’s eventful train trip to Pietermaritzburg. If within it were buried any delights, it did not easily yield them up.

Instead, what emerged very plainly was that, as with all judges, Chief Justice Ogilvie Thompson’s personal history and social class played a part in how he assessed the witnesses who took the stand against the Dean. Ogilvie Thompson attended an elite private school in Grahamstown, and made his career as an advocate and a judge while living in the affluent English-speaking suburbs of Cape Town.

This personal history now hindered the prosecution and helped the Dean. On the credibility of Major Zwart versus Ms Norman, he made it plain that Ms Norman’s upper-class social standing carried clout with him. ‘She comes from a wealthy English family and is in her own right financially well off,’ he noted, adding approvingly that she had taken ‘a first-class degree in history at the University of Oxford’.

Would a woman of such quality have blown her cover drinking beers and brandies with an Afrikaner security policeman posing as a liberal? Chief Justice Ogilvie Thompson could not bring himself to think so. ‘It is difficult to credit,’ he said, ‘that a woman such as the evidence indicates Miss Norman to be, would, in the middle of a hot day, consume not only three beers but two double brandies as well.’ The latter, he said, noting a typically rigorous detail, ‘being pre-metrication tots’.

Ms Norman later revealed that in fact she had drunk those brandies with Major Zwart. But her high-class credentials helped her earn credibility where it mattered – with the Chief Justice and his colleagues who decided the Dean’s appeal.

But Ogilvie Thompson was an impressive lawyer, with a penetrating legal mind and some liberal sentiments. And, though he betrayed those in the Sachs appeal, he knew full well what he was doing in the Dean’s case. Perhaps stung by the scathing criticism directed at Rossouw v Sachs, he now came out ringingly on the right side. Apart from freeing the Dean from the threat of long years in jail, his judgment significantly cut down the extraordinarily wide scope and application of the Terrorism Act.

It was plain, even to a fresher law student, that his judgment was a major setback for the apartheid Parliament’s efforts to create a police state in South Africa.

VII: Civil liberty, anti-apartheid activism and the Dean’s judgment

Chief Justice Ogilvie Thompson’s judgment drily pointed out that the prosecution had led ‘no evidence to show that any member of the ANC, or any other political offender, terrorist or saboteur, entered upon, or continued to engage in, the activities of that body because of any assistance obtained, either by himself or by his family’ from the funds the Dean administered. The Judge was saying that for the prosecution to succeed, it had to bring proof that the unlawful deeds of an anti-apartheid combatant resulted from the help the non-combatant gave.

For the prosecution to present evidence of this sort was almost impossible. Which anti-apartheid operative, even one who had turned to give evidence for the police, as some did, would say in court that money for studies, or food for the family, or legal fees, had boosted revolutionary anti-apartheid operational activities? The truth was that the Chief Justice was setting an extremely high bar – one the prosecution would rarely be able to surmount.

And that provided an answer to the crucial legal question in the case. Did doing what the Dean did – helping people who were on trial or in prison for opposing apartheid, and their families – ‘aid’ or ‘encourage’ terroristic activities within the words of the statute? The answer might well have been Yes. The statutory wording was wide enough to mean that anyone providing support to anti-apartheid causes was participating in terrorist activities. If that was what the appeal court had decided, the result would have been the police state that many feared Verwoerd’s hardline successor as Prime Minister, Balthazar Johannes (John) Vorster, was seeking to establish.

But Ogilvie Thompson’s deft ruling put an end to that. With an elegant sweep of his judicial pen, he brushed away the prosecution’s insistence that supporting ANC trialists and prisoners amounted to supporting the ANC: ‘Knowledge that his family is receiving some assistance while he is serving a prison sentence (or while he is outside the Republic’s borders engaged in terroristic activities) is no doubt some solace to the individual concerned; but that can hardly be regarded as an intended boosting of morale in such a degree as to qualify as promotion of the activities of the ANC.’ So providing ‘some solace’ to revolutionary operatives was not in itself unlawful. The Dean was in the clear.

The practical impact of these rulings was momentous. They sliced through the potentially unlimited scope of the Terrorism Act. And since it was almost impossible for prosecutors to provide evidence of the kind the Chief Justice required, his ruling blasted a torpedo through the hull of some of the statute’s most menacing provisions. In doing so, it opened a life-sustaining space outside the whites-only Parliament inside which opponents of apartheid could continue to breathe and work inside the country.

Little did I appreciate, as I pored over Ogilvie Thompson’s dense words in the whites-only students’ law library at Stellenbosch, that his judgment would pave the way for my own legal practice and activism ten years later, when, after a byway into Latin and classical culture, and three privileged years at Oxford as a Rhodes Scholar, I eventually embarked on my career as a practising lawyer at the end of 1982.

Still less did I appreciate that, with the brave decisions on coloured voters, and Oliver Schreiner’s dissent, the ruling in the Dean’s case tremulously lit a pathway towards a future constitutional state for our country.

Ogilvie Thompson’s judgment setting the Dean free meant that lawyers and philanthropists and activists could support ANC- or PAC-aligned causes as long as they steered clear of advocating violence and of direct links to the organisations themselves. Over the following two decades, the activities of countless internal activist organisations like the United Democratic Front, the Release Mandela Campaign, the Soweto Parents’ Crisis Committee, the Detainees’ Parents Support Committee, the black trade union movement from 1979, and independent white-led organisations like the End Conscription Campaign and the Black Sash itself, remained possible because of the lifeline Ogilvie Thompson’s judgment threw them. My own work with many of these organisations in the 1980s was possible because of the Dean’s judgment.

VIII: White judges, the Defiance Campaign and attorney Mr Mandela

All that lay in the future. For now, spending long hours browsing through the books in the university library – often reading anything but the cases our lecturers said we must read – I came across a decision that immediately soared to the top of my list of all-time most favourite judicial decisions. It was the first judicial ruling involving Nelson Mandela – and it cast vivid light on President Mandela’s subsequent personal stand on judges and the rule of law, and on what judges can mean to a democracy. Delivered in April 1954, just over a year after I was born, it was called Law Society v Mandela. It concerned the Defiance Campaign – and the role in it of a tall, ruggedly built, charismatic and impressively talented 35-year-old attorney, Nelson Rolihlahla Mandela.

The white supremacist National Party’s hardline racial policies after 1948 caused the ANC to rethink its strategies. It decided on a radical shift. For forty fruitless years it had tried the gentle-handed route of petitions, deputations, meetings and polite persuasion. Now, roused by its imposing Youth League leader, Nelson Mandela, it embraced a new tough line: militant nationalism, mass action, boycotts, strikes and civil disobedience. The aim? To scrap all laws differentiating between white and black, to obtain full and equal voting rights for all, with direct repre­sentation in Parliament, and to abolish the pass laws and other unjust statutes.

The main tactical vehicle for the new strategy was the Defiance Campaign. It was the biggest organised programme of non-­violent resistance South Africa had ever seen – and the first political operation pursued jointly by blacks, whites, coloureds and Indians.

The apartheid hardliners did not sit quietly by. In response to the ANC’s change of tack, Parliament passed a tough new law in 1950. It became a crime for anyone to advocate or encourage, or even defend, any ‘scheme’ aiming to bring about change in South Africa ‘by unlawful acts or omissions’. Breaching the law carried a possible ten-year jail sentence.

This only spurred the ANC and its allies on. In July 1951, at a joint conference they resolved ‘to declare war on Pass Laws’ and on segregation, and to embark on a mass campaign to repeal ‘oppressive laws’. The strategy? ‘Defiance based on non-cooperation’.

Civil disobedience involves breaking the law for moral reasons. The Defiance Campaign was in its very conception a scheme to bring about change in the country by unlawful acts. So by definition it flouted the new law.

At the forefront of the Campaign was the young attorney Mandela. He was a leading figure at the ANC’s 35th annual conference in Bloemfontein in December 1951, which endorsed and adopted the Defiance Campaign, and he played a key role in taking the idea from conception to the streets.

In May 1952 Mandela addressed a crowd of 500 black people. As always, security police moles were present, taking notes. Mandela, they reported, called on black people to resist implementation of objectionable laws ‘over our dead bodies’. He asked his audience to bear in mind that ‘you must do this in a peaceful manner – the greatest discipline is required of you’. But there was steel inside his glove: ‘We shall not rest,’ he told his audience, ‘until the gaols are filled.’

As the Defiance Campaign reached an uncertain peak, Mandela, the firebrand leader, doubled as Mandela, the practising attorney. Amidst his crowded political programme, he had to make arrangements for an effective professional life. In August 1952 he formed a law partnership with his fellow ANC leader, Oliver Reginald Tambo. They set up practice under the style and title of ‘Mandela and Tambo’ in Chancellor House, near the magistrates’ courts in downtown Johannesburg.

But a question mark hung over the new law firm. The meeting Mandela addressed under the watchful eyes of police informers endangered the future of Mandela the lawyer.

The apartheid authorities quickly arrested Mandela and other Defiance Campaign leaders. They charged them with breaking the tough new 1950 law by advocating change through ‘unlawful acts’. The Campaign leaders were brought to trial in Pretoria before Judge Frans Rumpff, whom the apartheid government had freshly appointed to the Bench in 1952. Defending the accused was a distinguished King’s Counsel at the Johannesburg Bar, Bram Fischer. A courageous man of singular principles, Fischer came from an elite Afrikaner background. His father was Judge-President of the Free State, and before him his grandfather had been Prime Minister of the pre-Union Orange River Colony. Eschewing elite family connections, Fischer joined the SA Communist Party to dedicate himself to the cause of non-racial democracy and social justice.

In his autobiography Mandela describes Rumpff as ‘an able man’ who was ‘better informed than the average white South African’. He also said he was ‘fair-minded and reasonable’. But Mandela’s statements at the May 1952 meeting provided crucial evidence against him. He denied nothing he had said or done. Judge Rumpff convicted Mandela and the other Campaign leaders of breaching the statute. Mandela recounts that although Rumpff found that the accused had instigated acts that ranged from ‘open noncompliance of laws to something that equals high treason’, he accepted that they had consistently advised their members ‘to follow a peaceful course of action and to avoid violence in any shape or form’.

Despite convicting the accused, Judge Rumpff showed unexpected leniency. From time to time in his later judicial life, he would surprise detractors by coming up with pro-liberty rulings. Instead of the ten-year maximum sentence, the accused were each sentenced to only nine months’ imprisonment. And even more strikingly, the judge suspended the sentences entirely. No one would go to jail immediately. The condition was that the accused should not be found guilty of the same contravention within two years. Mandela’s work as a politician and also as a lawyer could continue.

But the Law Society, a statutory body representing the country’s attorneys, thought differently. Mandela’s criminal conviction raised pressing questions about his status as a practising lawyer. How could an attorney, who is an officer of the court, urge organised resistance to the law? How can a guardian of the law advocate that it be undermined? Lawyers must uphold the law. They can surely not be allowed to subvert it.

On this line of argument, the Law Society moved to take action against Mandela. The criminal conviction – Mandela’s first run-in with the law – gave them the trigger. They applied for the court to strike him off the roll of attorneys. The society argued that respect for the law was demanded of all advocates and attorneys. They were officers of the court. They had to encourage obedience to the laws that Parliament enacted, even laws they considered unjust. Mandela’s deliberate defiance of the law made him unfit to continue to practise as an attorney. The court should disbar him from practising.

The Law Society’s case was heard in Pretoria in March 1954. As always, because of the importance of a case concerning an officer of the court, two judges instead of only one were assigned. On the Bench were two English speakers, William Henry Ramsbottom and Edwin Ridgill Roper. Both were appointed before the National Party takeover in 1948, Ramsbottom in 1938, Roper in 1945. Judge Ramsbottom was a beloved and highly respected liberal judge, whom the apartheid government grudgingly appointed to the appeal court only very belatedly, when he was already ill: he died after serving less than two years on the appeal court.

Two experienced senior advocates appeared before the two judges to press the Law Society’s argument that Mandela should be disbarred. But Mandela himself came to court with powerful legal backing. He put his faith in a team of distinguished liberal advocates from the Johannesburg Bar – Walter Pollak, who wrote a famous textbook on jurisdiction (the power of a court to hear a case and grant judgment), and Blen Franklin, who later became a judge in the Johannesburg High Court.

As the two opposing teams of lawyers filed into the spacious, light-filled courtroom of Pretoria’s elegant nineteenth-century Palace of Justice on Church Square, what was at stake between them was much more than only Mandela’s fitness to practise as a lawyer. What was on trial was the moral standing of the Defiance Campaign, with Mandela at its forefront, and, beyond that, the profound ethical questions its challenge to apartheid’s oppressive laws posed.

How would the court respond? Would the judges react with crusty snootiness, like Winston Churchill, Britain’s Prime Min­ister at the time? Churchill denounced the Campaign as counterproductive and ‘very stupid’. Would their reaction be similar? Or would their judicial vision be sensitive to the longer, deeper moral issues of racial injustice and oppression?

After hearing argument, Judges Ramsbottom and Roper reserved their judgment for five weeks. At last, in April, they handed down their finding. It was a stunning reverse for the Law Society. The application to strike Mandela’s name from the roll of attorneys was refused. Mandela had triumphed. He would remain a practising lawyer.

In a stirring judgment, Judge Ramsbottom reasoned that ‘the mere fact that an attorney has deliberately disobeyed the law does not necessarily disqualify him from practising his profession or justify the court in removing his name from the roll’. He pointed out that though Mandela had engaged in misconduct – inciting disobedience to the law – the misconduct had not been committed in his professional capacity. On the contrary, the offence of which he had been convicted ‘had nothing to do with his practice as an attorney’.

Hence, the question wasn’t simply whether Mandela had been convicted of a crime. It was whether that crime showed that he was ‘of such a character that he is not worthy to remain in the ranks of an honourable profession’. And on that question, Judge Ramsbottom was unequivocal. There can, he said, be ‘only one answer’. ‘Nothing has been put before us which suggests in the slightest degree that [Mandela] has been guilty of conduct of a dishonest, disgraceful, or dishonourable kind.’ Nothing he had done, the judge said, driving the point home, ‘reflects upon his character or shows him to be unworthy’ to continue practising as an attorney.

On the contrary, Judge Ramsbottom said, using the racial terminology of nearly fifty years ago, Mandela’s motives were pure: in advocating defiance, he ‘was obviously motivated by a desire to serve his fellow non-Europeans’. The intention was ‘to bring about the repeal of certain laws which [he] regarded as unjust’. The method of producing that result was unlawful, ‘but his offence was not of a personally disgraceful character’. Hence there was nothing that rendered him unfit to practise as an attorney.

What about the fact that Mandela was unrepentant? He denied nothing. On the contrary, he remained defiant. He embraced his leadership of the Campaign, and refused to disavow anything he had said or done. The Law Society urged the court to take disciplinary action because despite being convicted of a crime he had ‘not expressed regret’.

This point was a potential winner for the Law Society. Most practitioners carpeted for wrongdoing ooze humility and repentance. Not Mandela. He remained unbowed in the face of possible professional ruin. But Judge Ramsbottom also dismissed this attack. He did so in a rousing codicil to his judgment. He said that if Mandela’s actions did not justify the court disciplining him, he could not be required to express regret: ‘If what he did was not dishonourable, his failure to express regret cannot make it so.’

It was an extraordinary judgment. In effect, it was a ringing endorsement of Mandela’s character and the motives behind his political work. Urging disobedience of apartheid laws was ‘not dishonourable’. On the contrary: it was ‘obviously motivated’ by a desire to serve. This came as close as two white judges of the courts of apartheid South Africa could come to saying that Mandela’s motives were noble, and that his support for the Defiance Campaign was righteous.

Mandela was deeply affected by the judges’ decision. He cited it later, when, after being released from prison, he addressed the very Law Society that forty years earlier had moved to disbar him. ‘Here I am,’ he proudly exclaimed, ‘with my name still on the roll.’

IX: Justice and the courts under apartheid – the Treason Trial

The apartheid authorities, though dismayed by the judgment, did not sit still. They acted forcefully to hobble Mandela’s mobility and to mute his public voice. The police tried to punch him down with successive banning orders. These restricted his movements, forbade him from holding office in any organisation, and muzzled his public speaking. But government had to do this through ministerial diktat and security police action. Until his conviction of conspiracy, in effect treason, ten years later, the courts and the law did not disown Nelson Mandela. And he remained a lawyer and an officer of the court.

Most importantly, the decision showed that, even in a wicked legal system, judges committed to justice and fairness may do more good than harm.

The judges in the Law Society case were appointed before the apartheid hardliners came to power. After 1948, government vigo­rously set about appointing Afrikaners, many of them apartheid supporters, to the Bench but, to the surprise of many, quite a number of the new judges also showed an aptitude for independence, a commitment to the rule of law, and a readiness to respect fundamental legal principles.

The Afrikaner nationalists were proud of the Roman and Roman-Dutch legal heritage the white colonists brought to South Africa in 1652. They saw themselves on a mission of civilisation in Africa, and they considered their legal heritage an important part of their calling. The effect of this was that, even though the legal system was grotesquely disfigured because it enforced apartheid, occasionally some justice could prevail. I was an Afrikaans speaker myself – my mother was an Afrikaner Schoeman, whose forefather came to the Cape in 1724. Though my primary language has long been English, before Pretoria Boys’ High I went to Afrikaans schools. In literal terms both my first language and my mother tongue were Afrikaans. Hence my upbringing gave me a first-hand sense of the Afrikaners’ sense of mission: both its racial condescension, and its claim to elevation.

Afrikaner pride in ‘their’ legal system helps to explain why Judge Rumpff, against expectation, let the Defiance Campaign leaders escape jail. And it explains the reaction of Judge Quartus de Wet, who later determined Mandela’s fate in the Rivonia Trial, when a troublesome magistrate questioned Mandela’s status as a lawyer, demanding to see his certificate to practise, and addressed him disrespectfully (‘Hey, you’). Mandela brought a petition to remove the magistrate from the case. His motion succeeded. De Wet was outraged: ‘This is the sort of thing that brings the administration of justice into disrepute in our country,’ he said. He removed the magistrate, and ordered the case to start afresh before a new, presumably more respectful, presiding officer.

But Mandela’s confrontation with the apartheid legal order was only beginning. On 25 and 26 June 1955, barely a year after Judges Ramsbottom and Roper affirmed his status as a practising lawyer, a 3000-strong ‘Congress of the People’ at Kliptown in Soweto adopted the Freedom Charter. In defiance of his ban, Mandela covertly attended.

The Charter proclaimed that South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of the people. It demanded democratic government by the people, equality and human rights for all, and a share for all in the country’s wealth. It proclaimed that the land shall be shared amongst those who work it.

It concluded in rousing terms. ‘Let all who love their people and their country now say, as we say here: “These freedoms we will fight for, side by side, throughout our lives, until we have won our liberty.”’

To the apartheid authorities, determined to perpetuate white dominance, this was intolerable provocation. Heavily armed policemen disrupted the second day of the Kliptown meeting. They said they were investigating high treason, and were searching for subversive documents. Their quest culminated within a few short months. Before the end of the following year, at dawn on 5 December 1956, only a few months after the rigged Parliament voted to cut coloured voters from the common franchise, the police swept through the country, arresting 140 people. Sixteen more followed shortly after. Among the very first seized was Nelson Mandela.

All those arrested were brought to the Old Fort prison in Johannesburg, which stands on the high knoll between Braamfontein and Hillbrow, commanding both the northern and the southern approaches to the city. Its northern ramparts now shelter the Constitutional Court from the icy southerly winds that sweep through downtown Johannesburg in wintertime. The Fort was built on the instruction of President Paul Kruger at the end of the nineteenth-century to defend the Transvaal Republic against British gold-seeking imperialists.

Now, a half-century later, it held captive the most prominent extra-parliamentary opponents of apartheid. They were a distinguished array of churchmen, lawyers, writers, trade unionists, teachers, manual workers, businessmen, academics and community activists. They included blacks, coloureds and Indians, and also 23 whites.

The arrests signalled the start of the biggest trial in South African history. Two weeks later, those arrested were brought to face the charges. They appeared before a magistrate in a makeshift courtroom set up in downtown Johannesburg’s Drill Hall – because no court was big enough to accommodate them. All were charged with the offence of high treason under the Roman-Dutch common law. The charge, if proven, carried the death penalty.

The trial was in two stages. First there was a preparatory examination to see if there was enough evidence to formally try the accused in a superior court. For those against whom enough preliminary evidence was presented, a full trial then followed. (This two-stage process, though not abolished, fell into disuse when the current criminal procedure statute came into force in 1977.)

But if the apartheid authorities thought that arrest, arraignment and treason charges would silence the accused, they were badly mistaken. The accused and their legal team sprang a surprise. Far from adopting a defensive posture, they came out fighting from the very start. Instead of allowing the proceedings to focus on the technical question of whether the accused had engaged in acts that made them guilty of subverting the state, their defence turned the spotlight on the high ethical issue of how apartheid laws oppressed South Africans.

Under scrutiny were not so much the actions of those struggling for freedom and equality, but government’s intransigent and oppressive racial policies. The accused and their lawyers used the court proceedings to put apartheid on trial. This was to be a pattern over the next forty years. Apartheid hardliners sought to enforce their policies of racial domination by using the law against their opponents, and by using criminal trials, and the prospect of jail, to smother their work. In response, anti-apartheid activists and their lawyers used every public appearance, every procedural loophole, every legal opening and every conceptual ambiguity the law and its processes offered to thwart apartheid.

As the preparatory examination started in the Drill Hall, the silver-tongued advocate leading the defence, Vernon Berrangé, audaciously took the battle onto apartheid’s territory. He announced that ‘what is on trial here are not just one hundred and fifty six individuals, but the ideas which they and thousands of others in our land have openly espoused and expressed’. He went on: ‘A battle of ideas has indeed been started in our country, a battle in which on one side are poised those ideas which seek equal opportunities for all, and freedom of thought and expression by all persons of all races and creeds; and, on the other side, those which deny to all but a few the riches of life, both material and spiritual, which the accused aver should be common to all.’

His words rang out in media reports in South Africa and across the world. Those accused of treason were putting apartheid in the dock, and shaming it. I read Berrangé’s words years after I became a lawyer. They stirred my pride in what my profession could achieve. Far from being just grey-suited factotums, lawyers could help shape history – on the side of justice and fairness.

Twenty years after the start of the Treason Trial, public interest lawyers continued to embrace these very strategies to counter apartheid. At Wits University, John Dugard in 1978 established the pioneering Centre for Applied Legal Studies (CALS), which created an academic base for practitioners to attack apartheid while seeking to pave the way for a more just legal system. And Felicia Kentridge and Arthur Chaskalson were amongst those who soon after, in 1979, founded the Legal Resources Centre (LRC), a pioneering firm of public interest lawyers, which gained and has sustained enduring international admiration for its work. After three years in commercial and general practice at the Johannesburg Bar, Professor Dugard invited me in 1986 to move my practice to a base at CALS. I was excited to accept. My idea that the law could be more than only a rebuke, a restraint – as it had been to my father – and more than an instrument of oppression and injustice – as it was to millions of black South Africans – was confronted with an exciting challenge. CALS invited me to come and help put my lofty aspirations of legal challenge and reform into practice.

When as lawyers from the LRC and CALS we engaged in courtroom confrontations, we aimed to set the same battle lines as the lawyers in the Treason Trial had set. Time and again, we adopted tactics and brought forward witnesses and testimony that shifted the courtroom contest from focusing on the strict legal issues to the moral repugnance of the apartheid laws the authorities were seeking to enforce.

From the Treason Trial on, public court hearings under apartheid became a contest of right and wrong – but not right and wrong according to apartheid law. One set of norms, those of the apartheid legal system, determined that breaking the law was illegal, and that those guilty of it were criminals. Another set – the moral values that showed that racial subordination was abhorrent, and that any system premised on it was indefensible – determined that apartheid’s opponents were fighting a just cause, in a necessary struggle, and were guilty of no moral wrong in breaking its laws.

The legal system under apartheid, employed to perpetuate racial supremacy, became one of the instruments for its subversion.

However, as I was to discover in my own years in legal practice, using the law against apartheid was often a tedious and long-winded business. It demanded much patience.

The preparatory examination in the Treason Trial dragged on for over a year, but in January 1958, 61 of the accused, including Chief Albert Luthuli and Mandela’s law partner, Oliver Tambo, were discharged for lack of evidence. They walked free. For the 95 accused who remained, Mandela amongst them, the daily burden of trial attendance and preparation continued.

The trial proper started on 3 August 1958. A special court of three judges was put together to try the accused. Presiding was the same Judge Rumpff who had previously convicted Mandela and the other leaders guilty of breaking the law, but had given them wholly suspended sentences. Together with him sat Judge Kennedy, and Judge Ludorf – all had been appointed to the Bench by the apartheid government. In his autobiography Mandela bleakly describes the panel, with its links to government and apartheid-supporting organisations, as ‘not promising’. (Ludorf later, after the accused successfully challenged his impartiality, was replaced by Judge Bekker.)

To many it must have seemed inevitable that this panel would render guilty verdicts and long sentences.

The daily slog that a long-running trial demands continued for the accused even, as outside the courtroom, tense events were shaping our country’s momentous and sometimes horrifying history. Robert Mangaliso Sobukwe and others, objecting to the Freedom Charter as too conciliatory, broke away from the ANC in April 1959 to form the Pan Africanist Congress (PAC). Mrs Helen Suzman and eleven other parliamentarians split from the main white opposition to form the Progressive Party. In Cape Town and Johannesburg, the newly formed PAC pre-empted the ANC by leading mass protests against the pass laws. On 21 March 1960, to the aghast horror of South Africa and the world, police shot dead 69 unarmed protestors at the Sharpeville police station. Eighteen days later Parliament passed a special law banning both the ANC and the PAC. South African whites voted just months later, in October 1960, to become a Republic, which Prime Minister Hendrik Verwoerd soon took outside the Commonwealth.

The grim thirty-year end-phase to apartheid, which was to see decades of isolation and oppression, had begun.

Amidst these momentous events, the leaders who remained on trial had to travel to Pretoria every day, where the trial proceeded in the Old Synagogue, and sit through the long, dense hours of court process. The trial absorbed the energies and time of all, taking them away from their work, their families and their political activity. But the proceedings – and especially the belligerent defence – also soaked up the resources of the apartheid state, its prosecutors and police and officials. At least some of that energy would have been spent enforcing the increasingly rigorous racial separation the hardliners demanded, uprooting families and communities from ‘black spots’, and victimising black people without passes in urban areas. Because of the combative tactics of anti-apartheid lawyers, time, money and resources had to be diverted from enforcing apartheid into the courtroom battle.

The legal fight was surely worth it.

And most importantly and practically, the protracted Treason Trial ended in a sensational acquittal of all the accused. After Mandela and other accused had testified in their own defence, and the state and defence had closed their cases, Judge Rumpff told the defence the court did not need to hear further argument. He said that the panel of judges had reached a unanimous verdict. This cut the proceedings dramatically short. It was an outcome that freed all the accused. For the prosecution, this meant the trial had proved a catastrophe.

In his judgment on 29 March 1961, Rumpff explained that although the ANC was intent on replacing the government, and had used illegal means of protest during the Defiance Campaign, the prosecution had failed to show the organisation was using violence to overthrow the state. Hence the prosecution had failed to show that the accused acted with revolutionary intent.

The last 30 accused were all pronounced not guilty and discharged.

Mandela recounts that when Judge Rumpff finished delivering the court’s verdict, ‘The spectators’ gallery erupted in cheers. We stood and hugged each other, and waved to the happy courtroom. All of us then paraded into the courtyard, smiling, laughing, crying. The crowd yelled and chanted as we emerged.’

The most massive legal contest in South African history had ended in disaster for the prosecution. The accused and their lawyers had torn the state’s accusations to shreds. The attempt to use treason charges to stifle extra-parliamentary anti-apartheid opposition had been calamitously thrown out of court. As Mandela recounted, ‘After more than four years in court and dozens of prosecutors, thousands of documents and tens of thousands of pages of testimony, the state had failed in its mission. The verdict was an embarrassment to the government, both at home and abroad.’ Yet, he reflected, ‘the result only embittered the state against us even further. The lesson they took away was not that we had legitimate grievances but that they needed to be far more ruthless.’

And Mandela did not regard the verdict as a vindication of the legal system – or as evidence that a black man could get a fair trial in a white man’s court. His own assessment was much more constrained. ‘It was,’ he said, ‘the right verdict and a just one, but it was largely as a result of a superior defence team and the fair-mindedness of the panel of these particular judges.’

X: Law and armed resistance to apartheid – the Rivonia Trial

Mandela was correct when he had predicted that enforcement of apartheid would take a ruthless turn after the Treason Trial acquittals. Government pushed even tougher statutes through Parliament to make it easier for prosecutors to secure convictions against extra-parliamentary apartheid opponents.

Without a bill of rights, the courts had no power to question what the legislature enacted. Parliament was supreme, and courts had to enforce its will – or that, at least, was the doctrine most white judges accepted under apartheid.

A brave minority on the Bench thought differently. They fought to find ways to uphold long-standing Roman and Roman-Dutch legal precepts. These included equal treatment, unless a statute expressly commanded otherwise, and elementary procedural fairness. They fought for these to prevail, even in the face of rancid apartheid legislation. And, indeed, occasionally the laws Parliament enacted did leave enough room for determined lawyers, and fair-minded judges, to try to secure just outcomes. In addition, fair procedures could generally still be demanded in the courtrooms of apartheid.

Only months after the treason acquittals, events occurred that would put those courtroom processes to further test. On 16 December 1961 Mandela and other leaders founded the ANC’s armed wing. They called it uMkhonto weSizwe (MK), the ‘Spear of the Nation’.

The armed struggle had begun.

But on a wintry day just a year and half later, on 11 July 1963, most of the high command of the ANC leadership was arrested in a dramatic police raid on a secret hideout at Rivonia, north of Johannesburg. During the raid, the police arrested seven people. They also seized a crucial six-page document headed Operation Mayibuye (‘Let Africa come back’). The document had been drafted by the ANC high command, excluding Mandela, who had previously been arrested. He was already in the Old Fort prison in Johannesburg, serving a sentence of five years’ imprisonment. This was for incitement and for leaving the country illegally, when he received military training in March 1962 from the Algerian National Liberation Front.

When those arrested at Rivonia fifteen months later were put on trial, Mandela joined them in the dock. Others on trial included Govan Mbeki, Raymond Mhlaba, Walter Sisulu, Ahmed Kathrada, Elias Motsoaledi, Denis Goldberg, Lionel Rusty Bernstein and Andrew Mlangeni.

But the prosecutors had learnt from the Treason Trial fiasco. This time, they were careful to avoid the pitfalls of bringing charges under the common law. Instead, they adopted a much safer ploy. They used the newly enacted 1962 Sabotage Act against the accused. The charge sheet confronted the accused with charges of statutory sabotage and conspiracy. The statutory charges were no less grave than those under the common law. They too carried the death penalty. The crucial difference was that the statute made the prosecution’s task easier, by providing important procedural help in proving vital elements of the charges against the accused.

As in the Defiance Campaign prosecution twelve years before, the lead counsel for the accused was Bram Fischer. By now, alongside a busy commercial practice, representing corporate giants like the Anglo American gold-mining corporation, Fischer was also an underground leader of the Communist Party. And he was still deeply involved in anti-apartheid work. It was by simple happenstance that he had not been at the Rivonia hideout when the security police arrested the ANC leadership there.

For Bram Fischer, defending the Rivonia accused entailed taking extraordinary risks. While defending them as an advocate, he was also engaged in a high-stakes double game. He was an officer of the court, with a duty to it and to his clients, but he was also an underground leader in the anti-apartheid opposition, with a commitment to securing a just society. During the trial, Fischer the advocate obtained crucial documents from the state. Fischer the underground activist then made these documents available to fellow underground activists to use in their struggle.

Presiding over the Rivonia accused was Quartus de Wet, now Judge-President of the Transvaal. He was the judge who ten years earlier had rebuked a magistrate for disrespecting Mandela. Of him, Joel Joffe, the attorney for Mandela and the other accused in the Rivonia Trial, said he ‘did not have the reputation of being a puppet of the Nationalist Government who would take orders directly from politicians’. While the accused and their lawyers felt that they could have done much better, ‘we could also have done much worse’.

Before the trial started, the defence lawyers went on the attack. They applied for the dismissal of the indictment on the grounds that it did not set out clearly enough the precise charges the state was levelling against the accused. Their strategy succeeded. Judge-President De Wet handed the defence a symbolic victory – he quashed the indictment. This was a slap in the face for the prosecution. It meant it had to go back to the drawing board to reformulate the charges. It had to set them out with more precision and clarity. The victory was short-lived. The prosecution fixed its sloppy work, and was allowed to proceed. But the judge’s ruling was important. It showed that he was not prepared to give the prosecutors a free ride. Procedural justice, by his lights, would prevail in his court.

Operation Mayibuye detailed ambitious plans for military insurrection. In his autobiography, Nelson Mandela describes the document as ‘the keystone of the state’s case’ against the Rivonia accused. It sketched out in general form, he explained, ‘the plan for a possible commencement of guerrilla operations, and how it might spark a mass armed uprising’ against the apartheid government.

The state argued that the ANC executive, including Mandela, had endorsed and approved Operation Mayibuye, and that MK had adopted it as the operating model for armed revolution. As Joel Joffe, the Rivonia accused’s attorney, explained, this meant that ‘the lives of the accused were at stake. The state’s case alleged that they had already embarked on the organisation of armed insurrection and guerrilla warfare’, involving foreign military intervention and general mayhem. If the court accepted this, ‘the peril to the lives of the accused was real and grave’.

The accused denied that Operation Mayibuye was already operational. They contended the high command had never formally adopted it. It was, they said, still being considered as a possible plan of action.

The accused made it plain to their legal team, which included Arthur Chaskalson, that they would never deny membership of the ANC or the SA Communist Party. Nor would they disavow the ideals and aims of the organisations. Through skilful cross-­examination of the police witnesses, and adroit testimony by the accused who took the witness stand, the accused’s version prevailed. The trial judge accepted that Operation Mayibuye had never become operational.

The trial offered the accused an important opportunity. Most of them had, like Mandela, long been banned from public speaking and from being quoted in the media. Now the courtroom confrontation gave them a platform from which to voice their principled opposition to apartheid. And the newspapers were entitled to report on courtroom proceedings.

In particular, Nelson Mandela’s statement from the dock rang across the world. It became a classic enunciation of a people’s claim to dignity and freedom. He explained his commitment to non-racial principles. He emphasised his support for independent institutions and the rule of law. And he detailed the ravages apartheid’s unjust racial laws inflicted on black South Africans.

He ended by explaining that the struggle of the African people was a national struggle, ‘inspired by their own suffering and their own experience’. It was, he said, ‘a struggle for the right to live’.

‘During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.’

Judge-President De Wet eventually convicted eight accused in the Rivonia Trial of statutory sabotage – the equivalent of treason. They were, in the order in which the judge announced his verdict, Mandela, Sisulu, Goldberg, Mbeki, Kathrada, Mhlaba, Mla­ngeni and Motsoaledi. Only Bernstein was acquitted.

Mandela was prepared to face death for opposing apartheid, but that price was not exacted of him. Instead of the death sentences many expected, the trial judge on 12 June 1964 imposed imprisonment: life sentences. This was imprisonment for life – but, it was for life. The accused all left prison, years later, living. All eight lived to see democracy established in South Africa. One of them became democratic South Africa’s first President.

XI: Law and the struggle for justice under apartheid – the legacy for democracy

Soon after the Rivonia Trial ended, Bram Fischer, who had led the defence, was himself arrested. Released on bail, he obtained the court’s permission to go abroad to argue an appeal for a mining corporation before the Privy Council in London. He returned. But then, on 25 January 1965, defying his bail conditions, he went underground, eluding the courtroom, to continue his anti-apartheid work.

Fischer was eventually re-arrested and he was put on trial. He was convicted of conspiring to commit sabotage. He, too, received a sentence of life imprisonment but, unlike the Rivonia trialists, he did not outlive the system that imprisoned him. He died in 1974. When he was already severely stricken by cancer, and close to death, the prison authorities released him. He died a few weeks later in the home of his brother in Bloemfontein.

Bram Fischer’s life as a practising lawyer illuminates the complexity of the apartheid legal system. He thought it worth sustaining the struggle for justice through the law, and treasured his position as legal counsel. When he estreated his bail, the Bar Council, which he himself had previously chaired, hastily brought proceedings to strike his name from the roll of advocates. Fischer knew that more was required to attain a just system than only legal work. Unlike many other lawyers, including me, he sacrificed his legal practice, his home and his comforts to devote his life unconditionally to the struggle for justice.

But Fischer felt acute anguish at his colleagues’ actions. He felt they were precipitate. It pained him that they did not accept that his motives were always in pursuit of justice.

Throughout his struggle against apartheid, Mandela, too, thought it worth fighting to keep his status as a lawyer inside the South African legal system. This was even though the law was the chief instrument through which racial privilege, the pass laws and segregation were enforced. Why did he fight to remain a lawyer in such a pernicious system? Mandela explained that, as a young law student, it was one of his ambitions ‘to try to use my professional training to help tilt the balance just a wee bit in favour of the citizen’. Later, as President, he explained that under apartheid, ‘The law was used not as an instrument to afford the citizen protection, but rather as the chief means of his subjection.’

But even in the harshest period of apartheid law enforcement, Mandela recognised that there was a balance that lawyers and judges could try to tilt in favour of justice – even if only ‘a wee bit’. In its very nature, the legal process afforded lawyers that chance.

Mandela’s biographer Anthony Sampson records that Mandela was occasionally surprised by the fairness of judges, but at the same time he knew apartheid laws severely limited the courts as the guardians of civil liberties. As Mandela wrote in jail, ‘In our country where there are racial laws, and where all the judges and magistrates are white and reeking the stale odour of racial prejudice, the operation of such principles is very limited.’

The apartheid legal system was evil. It enforced a system that sought to degrade, subordinate and dehumanise the majority of South Africa’s people because of their race. But, though limited in their operation, the principles Mandela spoke of were never obliterated. For most of apartheid, the candle of hope for justice under law flickered low and the space within which its light shone was often stiflingly small. Apartheid law was the instrument through which ‘a stubborn, race-blinded white oligarchy’, as Mandela called it, enforced its will.

Even so, the law continued to provide a means through which creative lawyers and principled judges could oppose apartheid, or at least try to ameliorate its harsh effects. This was what propelled my own choice of law as a career. I became a human rights lawyer in the early 1980s. Human rights practice in these years was sometimes dark and difficult, but it could also be hopeful and exciting.

By the end of the 1970s government realised it could no longer suppress black worker organisations. In 1979 it changed the law to allow black people to join and form trade unions. As a result, unions flourished. When I started practising from CALS in 1986, I formed part of a group of activist lawyers who were committed to thwarting apartheid’s effects through legal strategies. Led by labour organiser Halton Cheadle, we fought cases on unfair dismissal, trade union rights and worker security and safety. Unions used the new fair labour practice protections aggressively to give workers job security and to secure better pay and benefits for them.

The apartheid government thought that by drawing workers into the labour relations structures it created, it could contain them. It was wrong. It had let the genie of mass activism out of the bottle. By working within the new system of labour protections, the unions did far more than only secure legal rights. Strengthened by repeated court victories under the new law, they became joint leaders of the mass internal activist alliance that swept the country from the mid-1980s. They and other activist organisations were at the forefront of insisting on equal rights for all in a democratic South Africa.

We also fought cases in which we resisted forced removals from land, and defended ANC fighters charged with treason, and white conscripts refusing to serve in apartheid’s army. And legal victories in many cases meant that, in effect, lawyers were working in tandem with internal activists opposing apartheid. Arthur Chaskalson, who later became Chief Justice of democratic South Africa, with his team of LRC lawyers, a team that included Geoff Budlender, successfully fought pivotal cases against the pass laws and forced removals and suppression of anti-apartheid organisations. Their litigation helped thwart apartheid’s grand design.

Two cases put a virtual end to enforcement of the notorious pass laws – the very laws that, thirty years before, formed the centrepiece of the Defiance Campaign.

The first case involved Mrs Nonceba Komani. She moved from the Eastern Cape in May 1974 to Gugulethu, to join her husband, Mr Willie Komani. He had been working in Cape Town since July 1960. The pass law authorities initially allowed her to stay but then, as part of the crackdown on ‘urban blacks’, in January 1975 they instructed her to go back to the Eastern Cape.

She refused to leave. The pass regulations required that, as the wife or customary union partner of a long-term resident, she had to have what was quaintly called a ‘lodger’s permit’. The Cape Town court enforced this requirement. Chaskalson appealed the verdict to Bloemfontein. He argued that the lodger’s permit requirement was inconsistent with the statute under which the regulations were promulgated. He said the lodger’s permit regulation was invalid.

The appeal court upheld his argument. The judgment was written by Judge Rumpff – the judge who in 1952 sentenced Mandela to a suspended jail term for his part in the Defiance Campaign, and who in 1961 acquitted him in the Treason Trial.

Now it was August 1980, and Rumpff was Chief Justice. He found for Mr and Mrs Komani. He wrote a judgment scrapping the iniquitous system of ‘lodger’s permits’. Mrs Komani’s case established that, as Mr Komani’s spouse, she did not need a separate permit to live with her husband.

Less than three years later, Mr Tom Rikhoto, again with Chas­kalson’s advocacy, struck what was to prove a probably fatal blow at the pass laws. To become entitled to live permanently in the urban areas, a black person who was born in the ‘homelands’, and not in a city, had to have ‘worked continuously’ in an urban area for ten years.

Since August 1970, Mr Rikhoto had been working for the same employer, and living in Germiston, an industrial and gold-mining city close to Johannesburg. The regulations enforcing the pass laws required him to leave every year, and to return to his ‘homeland’. So he did. For a few weeks each year, he returned to his rural home in Gazankulu, in the remote northeast of the country.

Every year, early in the new year, he returned to Germiston, knowing that his employer needed him, and that his employer would give him back his job for another year. And when he returned in January each year, this is indeed what happened. For over ten years, year by year, like clockwork, his employer re-­employed him.

Did this mean that Mr Rikhoto had ‘worked continuously’ in Germiston for more than ten years? If the answer was Yes, he was entitled to stay permanently in the urban areas. He would have security of tenure as a city dweller. But the pass law authorities said No, and they refused Mr Rikhoto and others in his position the right to live permanently in the cities.

The LRC took Mr Rikhoto’s case to court. Government argued strenuously in support of the pass law officials. It pointed out that Mr Rikhoto took leave every year. And his contract was renewed from year to year. It was not ‘continuous’. Hence, government argued, Mr Rikhoto had not worked continuously. For all those years, he had been employed only for separate one-year fragments. This meant that he had no right to live permanently in the urban areas.

The LRC lawyers contested this. The courts’ answer was crucial to enforcement of the pass laws, since there were millions in Mr Rikhoto’s position.

The tight legal question was what constituted ‘continuous’ residence and employment. But behind the legal issue was the human question of residential security for a significant segment of urbanised South Africa. And behind that social question lay a blunt political question. This was whether it was still practical for apartheid ideologues to dream of enforcing ‘grand apartheid’. To be practicable, grand apartheid wanted to make black South Africans identify with their ‘homelands’. It wanted them to plan their lives and future in their own areas and to accept that their time in the ‘white’ cities was just a temporary sojourn.

The Rikhoto case put this cruel and absurd logic to a legal test. The courts failed this logic. Both the Pretoria court and the appeal court in Bloemfontein, following on its humane ruling in Mrs Komani’s case, ruled in Mr Rikhoto’s favour. Even though Mr Rikhoto went back home every year, and even though his job contract was renewed year by year, he had in fact lived and worked ‘continuously’ in the urban areas. He was entitled to stay permanently.

This decision meant not only that a huge group of black people gained legally secure status in the urban areas, but that it became practically impossible to enforce the pass laws. Further legal activism nailed the lid on the pass law coffin. In addition to the Komani and Rikhoto victories, in the early 1980s Lawyers for Human Rights and CALS provided mass defences for city dwellers prosecuted for contravening the residential segregation laws. Then they launched a campaign to provide free legal represen­tation in pass courts. Once pass law accused had lawyers to represent them, the pass courts simply could not work. What had previously been a quick two-minute hearing now took a day.

The lawyers’ interventions eventually forced the apartheid government to see the folly of its ways. On 23 July 1986 the apartheid government gave up on the pass laws. The pass law statute was repealed. The lawyers’ work and the courts’ decisions had rendered a pivotal piece of the grand apartheid design unenforceable.

Amidst the brutality and turmoil of the 1980s, my CALS colleagues and I sometimes even managed to turn apartheid’s logic against itself. In two cases, we managed to thwart government’s plans to split off pockets of the rural areas, under oppressive pro-apartheid traditional leaders, to set up further ‘independent’ Bantustans. We did so with legal arguments that gleefully turned the grand theory of apartheid against the evil system itself.

Government tried to incorporate the relatively prosperous Moutse area, northeast of Pretoria, into the impoverished Ndebele-speaking homeland KwaNdebele, to make it viable for ‘independence’. John Dugard, head of CALS, devised a clever argument. Surely this offended apartheid’s own legislative principles of ethnic purity, he argued. After all, the population of Moutse was not Ndebele. It was predominantly Pedi speaking. By apartheid’s own logic, Moutse’s Pedi speakers could not be dragooned into an alien-cultured homeland.

I helped Dugard formulate the court papers and the evidence, and acted as his junior counsel in the high court and the appeal court. We lost in the Pretoria High Court, but the appeal court reversed the high court judgment. It upheld Dugard’s argument. It found that government could not use a statute based on distinct ethnicities to create a single homeland by forcing other ethnicities into it. The court set aside Moutse’s incorporation into KwaNdebele. As a result, ‘independence’ was put on hold.

But the apartheid planners persisted. Even though Moutse could not be tagged onto KwaNdebele, they proceeded with ‘independence’ plans. So, in another case, Geoff Budlender from the LRC briefed me to challenge the State President’s official proclamation announcing pre-independence elections. The proclamation allowed only Ndebele-speaking men to vote. Women were barred. This, surely, was not acceptable! Or so we protested in court papers on behalf of Ndebele-speaking women objecting to their exclusion.

Of course the women we represented did not want to vote in an ‘independent’ homeland. They wanted freedom in their own country. But our argument used principles of Roman and Roman-­Dutch law to thwart the grand design of apartheid. The common law, much prized by Afrikaner judges, forbade unequal treatment and discrimination, unless legislation in express terms authorised it.

And the legislation said nothing that empowered the State President to bar women from the vote. So we urged that the elections were illegal. Without express legislative sanction, women had to be allowed to vote. The court agreed. It upheld our argument. The effect was that the KwaNdebele elections were trash-canned – and, as a result, KwaNdebele independence never happened.

These legal ploys were possible because, in its essence, apartheid was a project that used the law as its instrument. For most of its history, most of those enforcing it saw themselves as subject to the law and its constraints. This changed radically in the 1980s, when ‘dirty tricks’ campaigns were sprung, and murderous ‘third forces’ were unleashed.

Until then, security policemen, bureaucrats, politicians and lawyers, including apartheid-minded judges, thought of themselves as operating within the values of an ethically sound and respected legal system. They knew apartheid was criticised around the world, and that most black South Africans rejected it vehemently, but they told themselves that there was a logic and justice to it.

Because of this, the legal system offered space to thwart apartheid’s plans and grand designs. And hence the legal system often did operate as a brake. On occasion, the courts were a real constraint on what the apartheid apparatus was able to achieve. Apartheid bureaucrats found that implementation of their orders was sometimes slowed down. They found the courts served as a check on government and police action.

And it was the very legal trappings of apartheid, despite the evil they engendered, that laid the foundations for the constitutional system that followed.

To say this is not uncontroversial. The role of judges and the courts under apartheid inspired impassioned debate. Some argued that the legal system provided a cloak that legitimated apartheid – enabling it to be enforced for longer under a guise of respectability. Others urged that the legal system offered important opportunities to ameliorate and sometimes halt, or even reverse, abusive injustice.

Both sides were right, for without the law, apartheid may not have been as efficient as it was for so long. But without the law, it would undoubtedly have been an even harsher, more vicious, destructive and degrading system. Anti-apartheid legal activism played an important role both in slowing its implementation and in alleviating its injustices. More importantly, together with the honest and principled judges who refused pro-apartheid rulings whenever they could, legal activism opened a way to a better legal system – one where the law seeks to secure justice and equality, and not their opposite.

XII: The apartheid judiciary and the Truth and Reconciliation Commission

In 1997 the Truth and Reconciliation Commission (TRC), chaired by Archbishop Desmond Tutu, called for submissions and evidence from judges and the legal profession on their role under apartheid. The country’s five top judges put in a joint submission. They were Justice Chaskalson, the new President of the Constitutional Court, his deputy, Justice Pius Langa, and the two senior judges in the appeal court in Bloemfontein, Judge Ismail Mahomed and his deputy, Judge Hennie van Heerden. Recently retired Chief Justice Corbett, whom the new democratic government had asked to stay on in 1994, joined them.

The five judges pointed out that law was the primary tool used to give effect to apartheid. From 1948, when apartheid became the chief focus of government policy, there were in effect two legal systems – one for whites and the other for blacks. Throughout the apartheid era, laws violated a host of human rights. These were introduced with muted protest from only a few judges and lawyers.

The five noted that the legal system generally treated whites benevolently but that the system for black South Africans did not meet the standards of the rule of law and respect for individual rights. In the magistrates’ courts, and in pass law courts, they came into daily contact with the brutal side of apartheid law.

The judges pointed out that few of these cases came before the higher courts. But they noted a shameful thing about apartheid law. When confronted with these cases that came up from the lower courts, judges treated apartheid provisions as ‘normal law’. It was very rare, they said, to find a judicial officer remarking on the racist and unacceptable character of apartheid law. The judges pointed out how the courts also failed to protect detainees held without trial. Courts should have been vigilant to provide protection against abuse, but they were not.

The submission noted that lawyers’ challenges did reduce apartheid human rights violations and provide some protections. People charged with political offences pleaded not guilty and mounted careful defences. Sometimes they succeeded, and avoided conviction. ‘For all the deep injustices perpetuated by law,’ the five judges argued, ‘there remained a real sense in which the techniques and procedures of law remained independent from the gross manipulation of the executive and in which justice was sometimes seen to be done. No account of these years would be accurate if it were not accepted that justice was done and seen to be done in some cases.’

To this, Justice Langa added a deeply personal submission. His words were humble, direct and powerful. He described how he had risen from being a court interpreter to qualifying as a public prosecutor and then becoming a magistrate, and later an advocate, a senior counsel and eventually a judge of the Constitutional Court.

He had seen the system at its worst. He described his ‘frustration, indignity and humiliation’ of being subjected to the pass laws, which included degrading medical examinations. To watch how pass law officials, both black and white, enforced the law was ‘soul-destroying’. ‘No one,’ he said, ‘can ever forget the experience.’ And the role of the judicial system in this, Justice Langa pointed out, ‘was to put the stamp of legality’ on a framework designed to perpetuate disadvantage and inequality.

I also made a personal submission to the TRC. In it, I pointed out how all of us who participated in the apartheid system were responsible for its injustices. In a passage the TRC included in its final report, I said that all lawyers and judges, whatever their personal beliefs and whatever the extent of their participation, were in some way complicit in apartheid. But this did not mean, I said, that there were no degrees of complicity or moral blame.

The TRC found that the legal system and all its members – judges, magistrates, prosecutors, advocates, attorneys and law teachers – were deeply complicit in apartheid. This was because, as it rightly noted, the apartheid leaders ‘craved the aura of legitimacy that “the law” bestowed on their harsh injustice’ – therefore, superficially, they adhered to the rule of law. The consequence was longer and harsher apartheid law.

Yet, for all this, the TRC noted that there were always a few lawyers who were prepared to break with the norm. These lawyers used every opportunity to speak out publicly against laws sanctioning arbitrary conduct and injustice. They explored the limits in defending those on trial for anti-apartheid offences. They worked ceaselessly to defend those whom apartheid targeted, often under difficult circumstances and for little reward.

The TRC also recognised those judges who found in favour of justice and liberty wherever proper and possible.

Importantly, the TRC remembered not only lawyers operating in the courts, but also those operating outside the courts. It mentioned lay activists and community advisors, serving the rural poor and workers through advice offices and religious bodies. It also mentioned legal academics, who challenged their students to understand how law was related to justice, and to work to attain their ideals.

On this evidence, the TRC was able to reach an overall conclusion. It said that to practise as an anti-apartheid lawyer under apartheid was justified. It found that what anti-apartheid lawyers had done to diminish suffering ‘substantially outweighed the admitted harm done by their participation in the system’.

XIII: Apartheid law and the constitutional transition

It was the legal clothing apartheid wore that made it possible for some judges of honour to remain on the Bench, and for lawyers opposing apartheid – including Nelson Mandela and Sydney Kentridge and Arthur Chaskalson and George Bizos and Pius Langa – to challenge it through the very legal processes that were designed to enforce it. This is because law can provide a cloak of legitimacy to the exercise of power only for so long as it really does curb power. If it does not, there is no longer law. There is only brute force.

So it was under apartheid. Though apartheid’s brutality was enforced through the law, the law also inhibited some of its excesses. And it was the work of anti-apartheid lawyers, and some honourable judges, that made it possible for those who negotiated the end of apartheid after 1990 to enshrine our country’s future aspirations in the form of legal principles and values.

Many of those leading the negotiations to end apartheid and create a constitutional democracy were lawyers. Mandela and De Klerk both were. Mandela’s long memory of fragments of honourable justice meted out in the apartheid courts played a part. Joe Slovo, Cyril Ramaphosa and Roelf Meyer were also lawyers. The negotiators found a tattered, partly discredited, but still-functioning and partially credible legal system.

They took it and salvaged it for better service under democracy. The constitution they crafted took the best from what preceded, and placed it at the service of a new, larger and more hopeful legal order.

This act of salvage was for a public who understood that the law in South Africa was, at least occasionally, a potential mechanism of right rather than exclusively an instrument of oppression. Under apartheid, the law was a ‘site of struggle’. As a result, a wide array of trade unions, community organisations, guerrilla fighters, detainees, politicians and ordinary people believed, from their own experience, that the law could be used to protect and to afford dignity.

The new Constitution was designed to foster the best in that tradition.

XIV: Law as a reparative project

Our new legal order offered our country an opportunity to engage in the greatest reparative project of all – to repair the injury of apartheid.

When I started as a human rights lawyer in the early 1980s, it was twenty long years after my father had appeared between two prison guards at the funeral of my sister Laura. My personal quest was to make the law more than only an instrument of confinement, more than only an implement of reproof, rebuke and correction. The law’s role, as I saw it, was also to repair.

The law could be confining, and oppressive and unjust. But it could also afford a means of healing, and restoration. In the law, while working with the often grimy realities of injustice, I found also a means of channelling my life’s aspirations, for social justice and for healing, into my daily work.

It was a long way from Laura’s funeral.