Читать книгу And Justice For All - Stephen Ellmann - Страница 11

CHAPTER ONE

Family

Arthur Chaskalson was born at home on 24 November 1931, in a house on St John’s Road in Houghton, Johannesburg. He was born into comfort, a child of well-off Jewish parents. He seemed marked for success: he would grow up to be tall, athletic, smart, prosperous. In a two-page autobiography he wrote after his retirement from the Constitutional Court in 2005, he remarked: ‘By accident of birth I was privileged, and entitled to all the benefits that whites enjoyed in South Africa at that time – a good home, a good education, and opportunities to prosper in my chosen profession, the law.’¹ It is easy to imagine him growing up to lead a life of privilege, not without conscience but fundamentally disengaged from the grotesque injustices of apartheid South Africa. Perhaps, like some of his friends, he might even have decided to emigrate. But he became someone quite different: an advocate for the dispossessed, the leader of South Africa’s pre-eminent public interest and anti-apartheid law firm, the first head of the post-apartheid nation’s Constitutional Court. The story of his life is the story of his own transformation, a transformation that was not just the product of choice and will exclusively, but also of something more delicate, an evolution, not even completely understood by Arthur himself, towards what he became. To understand that evolution requires a sense of Arthur’s own personal development, but also a recognition of how distant, and how disturbing, the world into which Arthur was born is from the South Africa that emerged over the coming decades.

Arthur was born into privilege, not only as a white child in South Africa, but as the child of prosperous parents. His father Harry had made a considerable success in the family mattress business, the Transvaal Mattress Company, which Arthur’s grandfather Bernard had founded after the Anglo-Boer War. As Arthur wrote – he did not produce an autobiography, but as he approached the age of 80 he penned a seventeen-page beginning of a memoir, at times matter-of-fact, at times sad and at times self-deprecatingly funny: ‘my father had left school without matriculating when he was young in order to help his father in a mattress business. Over time he proved to be a successful businessman and the mattress factory flourished. It was floated as a public company on the Johannesburg Stock Exchange and also on the London [Stock Exchange].’² The Chaskalsons were wealthy enough that in 1934 the whole family, including the children’s nanny, Janet Thorogood, sailed to Europe; his older brother Sydney recalled that ‘the crew were very fond of Arthur … and with a mop of thick curly hair, they called him “Carina”’.³

This business success had not come without effort. Sydney writes, no doubt from family lore, that ‘my aunts sat around work tables sewing mattress covers, and fixing leather tufts to mattresses. Our father, then aged 12, rode a bicycle around the dusty streets of Johannesburg, selling mattresses to nascent furniture dealers.’⁴ The Transvaal Mattress Company competed with other mattress companies, but ‘in the 1920s business got tough (as usual), and three mattress companies amalgamated – under the name Transvaal Mattress and Furnishing Co. (Pty) Ltd’.⁵ This company, in turn, must have been the one that went public.

Success had also not come without legal difficulties. In Rex v. Chaskalson and Others, decided in late 1919, a prosecution had been brought against ‘the accused Chaskalson [Bernard] and four others who were the directors, secretary and manager of the Transvaal Mattress Company’. In the magistrate’s court they were convicted of wage and hour violations, including ‘allowing some of their employees to work continuously for more than five hours without an interval of at least one hour’. They successfully appealed, however, on the ground that the statute under which they were prosecuted only made the ‘occupier’ liable, and not ‘an impersonal thing like a company’ or its directors and officials.⁶

It is not surprising that the Chaskalsons were in the mattress business; as Richard Mendelsohn and Milton Shain, chroniclers of the life of Jews in South Africa, observe, in the late 1920s ‘the emergent furniture and garment industries had a strong Jewish presence’.⁷ In subsequent generations these furniture makers turned to the professions in increasing numbers, and it appears that two of the other families involved with the company, the Friedmans and Unterhalters, would over time produce lawyers. The grandson of Benjamin Friedman, Basil Wunsh, would later serve as a judge and at Arthur’s request would become a founding member of the board of trustees of the Legal Resources Centre.

The listing on the London Stock Exchange was an achievement; Sydney writes that it was ‘one of the very first South African companies with a London listing’. Not long afterwards it was listed on the Johannesburg Stock Exchange as well. This achievement reflected not only Bernard and Harry’s business success, but also it seems Harry’s close friendship with George Mackenzie, at the time the chairman of various companies and a leading member of Johannesburg’s social elite. Mackenzie was not a Jew, but he ‘offered to put our father (the Jewish Govt. schoolboy) up for membership of that holy of holies, the Rand Club. Our father thanked him, but refused, saying that he did not want to be a token Jew.’ They did, however, join the Johannesburg Country Club, ‘a similar iconic establishment’. Meanwhile Mackenzie, not put off, became the first chairman of the newly listed company, with Bernard as the managing director. Sydney writes that the listing was accomplished ‘through the good auspices’ of Mackenzie and ‘his London colleague Sir Nutcombe Hume’.⁸

Arthur was Jewish, and his family came from Lithuania, the source of the second wave of Jewish immigration to South Africa (the first had been through England). Arthur’s paternal grandfather, Bernard Chaskalson, reached South Africa by about 1895. (Bernard was also known as Benhard or Benhardt; and the family name, Chaskalson, came to be spelled differently by different branches of the family, for example as Chaskelson or Chatzkelson.) One of Bernard’s brothers, Charles, also emigrated to South Africa; other members of the extended family would leave Lithuania for the United States and make their lives there. Bernard had married Dora Schapiro in Lithuania, and they would have seven children. Among them was Harry, Arthur’s father, who was born in 1896, probably in Memel in East Prussia (now part of Lithuania), and then brought to South Africa.

The family story was that Bernard Chaskalson came to South Africa after having first moved to Germany where he owned a mattress factory in Frankfurt. But the historian Richard Mendelsohn told the family about evidence he had discovered that seems to indicate otherwise. It turns out that Bernard Chaskalson filed a compensation claim after the Boer War for damages to his property. According to the material in the compensation file, Bernard emigrated from what was then Russia to the United States in 1880, when he was 23, and became a naturalised American citizen in 1887. Then he emigrated to South Africa in 1896, presumably hoping to benefit from the rush of prosperity resulting from the discovery of gold there. He became a dairy farmer and mattress maker in the Johannesburg area, and then fled to Cape Town in 1899 to avoid the perils of the Boer War, during which he reported he lost £181 worth of mattress-making property. In his letter to Arthur, Professor Mendelsohn wrote that his grandfather’s ‘trajectory is not all that unusual’.⁹

Harry Chaskalson in 1927 married Mary Oshry, who was born in 1904 or 1905, probably in Cape Town. (There was a family dispute over the location of her birth: her older sister Minnie contended Mary had been born in Lithuania, but Mary had a South African birth certificate to back up her insistence that she was born in South Africa.) Her father Raphael Oshry and her mother Musha Herring also emigrated from Lithuania to South Africa; other Herrings also made this passage. Sydney Chaskalson recalls ‘a no doubt apocryphal story that the inn [that the Herring family owned, in the city of Poniewicz], was one day raided by the local revenue authorities, accused of illegal brewing. Musha was told that if she showed the inspector the still, she would be let off lightly. She agreed, pointed him to the steps leading to the cellar, and when he had gone down a few steps, pushed him down, locked the access door, and emigrated to South Africa.’ True or not, the story reflects that many of the ‘Litvaks’ who left their home for South Africa were fleeing a harsh life. In South Africa, Sydney recalls, Raphael ‘although a highly educated man, was never able to make a decent living, and worked as a watchmaker – Musha scrimped and saved and her main object in life was to educate her sons.’¹⁰ But their daughter Mary and her husband Harry Chaskalson were prosperous, and would have their first child, Sydney, in 1928, and their second, Arthur, three years later in 1931.

The family’s heritage in Judaism was deep. Arthur’s paternal grandfather, Bernard, helped found the Beth Hamedrash Hagadol synagogue in Doornfontein, a suburb of Johannesburg then popular with well-to-do Jewish families. Arthur’s brother Sydney writes that Bernard ‘seems to have been either the chairman or treasurer of virtually every Jewish organisation in 1929 Johannesburg’.¹¹ Sydney also recalls being told by their mother that their maternal grandfather, Raphael Oshry, was brought up by his uncle, a much-esteemed rabbi. Their mother also said that Raphael was a cousin (perhaps separated by some degrees) of Abraham Issac Kook, who in 1921 would become the Ashkenazi Chief Rabbi of Palestine. (Another Oshry from Lithuania, Ephraim, would survive the concentration camps and later publish four volumes of his spiritual instruction to Jews struggling to live by rabbinic law while under the Nazis.¹²) Sydney writes that another cousin, David Wolffsohn, was a leading early Zionist, and ‘partly responsible for the original design of the Israeli flag’.¹³

All of these connections formed a part of the family’s sense of its own history. Arthur wrote that ‘in our roots there was a lot of religion. But this was not really followed through in our house.’ Arthur’s mother would later be a South African Zionist leader, who visited Israel annually, and entertained a prominent visiting Israeli, Yigal Allon, in their home. But Arthur would recall that she kept a kosher house not out of conviction but so that others who kept kosher would be able to eat there – while she was quite willing to eat freely in restaurants away from home.¹⁴ This too seems to have been quite typical of South African Jews of that era.¹⁵

Arthur’s own Jewish practice seems to have been limited. Immediately after their father’s death, his brother Sydney taught Arthur how to say Kaddish, the mourners’ prayer, and they would recite it when they went with their paternal grandfather to the synagogue which he had helped found.¹⁶ Arthur would write, around the age of 80, that ‘the prayer has remained fixed in my memory and I can still recite it off by heart when I am in a synagogue and the occasion to do so arises’.¹⁷ Some years later, he would have a bar mitzvah, but not long after that he went to a Christian boarding school, where presumably his opportunities for Jewish religious observance were limited. As an adult, Arthur would fast on Yom Kippur, but he would prepare for his cases at the same time.

Anti-Semitism was certainly part of the South African scene. Many Afrikaner nationalists harboured significant hostility towards Jews, and while Jews responded by strongly identifying with English-speaking white South Africans, many English speakers manifested anti-Semitic views as well. The country had virtually cut off Jewish immigration by the time World War II began.¹⁸ After 1948, with the accession to power of the Afrikaner National Party, South African Jews would largely accommodate themselves to apartheid, very much to the dismay of critics such as Arthur.¹⁹

But in the meantime, as Arthur was growing up, he himself did not seem to be much affected by the anti-Semitism around him. Though he was one of only a few Jewish students at his primary and secondary schools, in each he seems to have encountered little if any anti-Semitism. He would write of his experience at his primary school that being Jewish ‘did not prove to be a major obstacle for me, as I was reasonably clever and quite good at sport. That enabled me to get along relatively unmolested.’ At his secondary school, where his older brother Sydney apparently faced bullying from an anti-Semitic clique of boys, Arthur himself recalled his Jewishness as having been useful, and the cause of envy from the other boys. Being Jewish allowed him to finish his homework while the other students attended mandatory chapel, and enabled him to avoid eating pork whose ‘rind had hairs protruding out of the skin’ – though he was in fact fond of bacon.²⁰

For many young Jews in South Africa in these years, the drama of the building of the state of Israel became a passion, but Arthur did not join any of the Zionist youth groups. It may well be that members of the Chaskalson family who remained in the old country died in the Holocaust – Sydney recalls their father desperately trying to persuade a relative named Leo Schapiro, visiting South Africa in 1933, not to return to Germany. But Arthur was not yet eight when World War II began, not yet fourteen when it ended. He was aware of the war, of course, but the memory he brought with him from his primary school was of one of the children there, ‘older than me and as I remember him, overweight – [who] came from a German family. He became a victim. To make matters worse his father was apparently interned as an enemy alien, and that led to his leaving the school. I often thought about him, thinking how unfair it had been, and wondering what had happened to him. I never knew.’²¹ His sense of justice was already coming to the fore, and it was a universalist one.

While all South African Jews would learn of the horrors of the Nazi era, it was Sydney who was gripped by photos of the Holocaust, put up in the display windows of a Jewish-owned department store in Johannesburg. (Sydney thinks Arthur never saw this photo display because he was away at boarding school.) Perhaps in part for this reason, Sydney did military training to join the Israeli war of independence – but peace broke out before he could travel there. Years later, Sydney would emigrate with his wife and children to Israel. Arthur, however, didn’t try to join the war (he would have been 17 when the fighting stopped in 1949), and his brother recalled that he was never interested in emigrating to Israel. He would later write, ‘Had I been born in Germany my privileged childhood would have been very different. I would have been a victim of the Nazi laws, forced into a ghetto or children’s concentration camp, and denied the opportunity to practise law or engage in any other fulfilling occupation.’ But the conclusion he drew was about injustice in general and not Jews in particular: ‘As I grew older I gradually came to understand the full implications of this, and also to understand how different my life would have been if, born in South Africa, my parents had been black and not white.’²²

As much as Arthur’s actual early life was a life of comfort and privilege, it was also shaped by early loss. His father and mother travelled to England in 1936, when Arthur was four, leaving Arthur and his older brother Sydney to be taken care of in their absence. The ill-fated trip was meant to launch the family’s mattress business on the London Stock Exchange. But Arthur’s father apparently had heart trouble, and he died on that trip, from some combination of heart failure and pneumonia, at the age of 40. Arthur’s mother returned alone to South Africa.

Many years later, Arthur would write about this return:

The day my mother was coming home I was taken for a haircut. After cutting my hair the barber sprayed my hair with scented water and combed it. Later my mother was home. She was sitting in the lounge on a couch with adults around her. She was wearing dark glasses. I assume now that was to hide her tears. I asked her to smell my hair. She did and I told her that my father used to like the smell of my hair after it had been cut. My aunt called me aside. ‘Don’t talk about your father’, she said, ‘it will make your mother unhappy’. I never talked about my father after that.²³

His brother also remembers the return. ‘Relatives had been babysitting the two boys, but no one wanted to break the sad news to us. The lot eventually fell to our nurse Janet Thorogood. I still remember crying my eyes out, but Arthur, aged four and a half, could not quite comprehend it.’²⁴

At the age of four, Arthur had lost his father. His only memory of his father turned out to be ‘of him at breakfast one day, eating a soft boiled egg’. That day, Arthur’s older brother Sydney was in the hospital recovering from a tonsillectomy, and Arthur remembered asking his father ‘if I could go to the hospital to visit my brother’. He recalled the question, but not the answer.²⁵ His father was gone, lost not only to death but to the injunction from his aunt never to speak of him again, and to Arthur’s faithful compliance with that harsh rule.

The loss remained with him. ‘When I was more or less grown up,’ he recalled, ‘my mother gave me a gold Elgin pocket watch which had belonged to my father, and which she had kept for me so that I could have something of his. I had it for many years, winding it up regularly to keep it going, looking at it with pleasure from time to time, but seldom “wearing” it’ – until it was stolen.²⁶ Arthur’s older brother recalls Arthur having one more memory, of their father buying their mother a cutlery canteen and saying that it is nice to buy people things. Arthur remembered sorting cutlery into this canteen, and when their mother died, Sydney made sure Arthur inherited it.²⁷

While his mother would later remarry, in adulthood Arthur told his older brother that he felt he never had a father. Arthur recalled that one suitor took offence when Arthur’s mother ‘coyly’ told him over dinner, in Arthur’s presence, that Arthur ‘had asked whether “Mark” was coming to dinner. He responded saying, “that was very rude of him”. I was mortified. I did not like him and was very glad that not long after he ceased to visit.’ He was pleased at first with his mother’s subsequent choice of Joe Adler, ‘a dentist, who was then in the army medical corps … He was in uniform, had been a fine sportsman in his youth (a double blue at Wits) and I think my mother thought [the new husband, Joe Adler] would be a good substitute father for her two children; as matters turned out she was wrong.’ He recalled that ‘it soon became clear that the marriage was not going to be a happy one. My mother had a much stronger personality than he did, and there were frequent quarrels; despite this, they remained together for over forty years until Joe, then 87, died of cancer. They seemed to have made their peace with one another as they grew older, and their latter years together were better than the earlier years.’ Sydney seems to have felt closer to Joe Adler than Arthur did, and Joe himself, Sydney learned from others, regarded the two boys as his own children, but in some fundamental way the relationship between him and Arthur did not gel. Arthur also recalled that he was not close to any of his maternal aunts and uncles, and did not have much contact with his father’s siblings, though in later life he was close to his mother’s youngest brother, Alec, and hosted the 90th birthday party for Alec’s wife Helen.²⁸

If Joe was too retiring to be a good match for Arthur’s mother, it’s also clear that Arthur was the son of a very strong mother – but with her too Arthur may have experienced distance rather than closeness. The family recalls that when faced with the need to obtain essentially unobtainable permits for her black servants – including Malawians, to whom the state was especially intent on not giving permits – she descended on the government office with such force that she could not be denied. On another occasion, she managed to get the Pick n Pay grocery store near her to take her phone order for groceries and deliver them to her home – precisely what Pick n Pay ordinarily did not do – in part by invoking the name of Raymond Ackerman, a family friend who was the founder of the Pick n Pay chain.²⁹

But while Arthur’s mother Mary was a force of nature, she may not have been a very available mother. The boys had a Scottish nurse, Janet Thorogood. Sydney recalls that ‘Mrs Thorogood had a love of English Literature, had a book collection, of Walter Scott, Dickens, and English Poetry which she shared with Arthur and me’. During the war, ‘there was a world map in her bedroom where the positions of the Allied and Axis armies were marked by coloured pins, which we moved after each news broadcast’. It was Janet who told the boys of their father’s death, and Sydney felt that she actually did much of the rearing of the two boys. Sydney later wrote that ‘After our father died [our mother] went back to study at University, joined the Union of Jewish Women, became national chairlady, worked endlessly during the war years for the executive committee of the Governor General’s War Fund, worked for the Red Cross, and was awarded a medal by them, joined WIZO [the Women’s International Zionist Organisation], became National President, and subsequently honorary Life Vice President of World WIZO. All this time Janet Thorogood was there to care for Arthur and me whilst Mary was busy with the war and communal work.’³⁰

Sydney remembers a time when their mother was going to take them to a movie, and the two boys waited on the street for her but she arrived very late – and this was one of the rare occasions, he said, when she did something with them at all. She would also take them to fancy restaurants a few times a year when they were home from boarding school, and teach them about wine. Years later Arthur would be slow to leave the comforts of home and the domain of his mother as he entered the world of law practice. Arthur’s cousin Aubrey Lunz, who lived with the Chaskalsons as a young man after the death of his parents, recalls Arthur’s mother thinking of Arthur as ‘her blue-eyed boy’ and the ‘cherry on the cake’. But he also says that she would ‘eulogise’ Arthur over the dinner table – to Arthur’s discomfort, for he was never one to sing his own praises.³¹ Arthur would eventually leave his mother’s home, and would grow to be a man who would say of his mother that she ‘was inclined to exaggerate and was not always a reliable witness of events’.³²

After his father’s death, the family moved from their ‘large house’ (as Arthur recalled) at 47 Eighth Street in what is now Melrose Estate in the northern suburbs of Johannesburg to a smaller house ‘around the corner’ at 22 Glenhove Road. The house no doubt was smaller, and Arthur recalled it as being ‘in a different and then less affluent suburb’. The reason seems to be that Arthur’s father had not left all of his estate to his widow: ‘My father had left the house and its contents to my mother and divided the balance of his estate into three parts. One part to my brother, one part to me, (the income from which could be used for our education and other needs) and the third part to my brother and me subject to a usufruct [a right to use and benefit from the brothers’ property] in favour of my mother. My mother was wrongly thought to be a wealthy widow. In fact she had only a comparatively small income and tended to live beyond her means.’ Sydney recalls that he had to stop his horse-riding lessons. Even so, the house had a back garden which would, by the time Arthur was a student at the University of the Witwatersrand, be turned into a tennis court, and was also big enough for cricket games. Arthur’s mother was also able to send both Sydney and then Arthur to a leading private boarding school (then for white children only), Hilton College in Natal. She told her sons that ‘my father had always wanted us to have the best education possible – something that had been denied him’. Their father, an anglophile, would have had them educated in England if he had lived – and this alone would have put Arthur on a different life course. As it was, he and Sydney remained in South Africa but their mother Mary insisted on sending them to Hilton despite the objections of Harry’s brother Jack, who considered it absurd.³³

The family were also well enough off to have three black servants. Sydney recalls being asked by one of their servants, while he was still learning to write, to write a pass so he could travel elsewhere in town. The servant, a grown man, addressed him as ‘Master Sydney’. Sydney recalls being struck, even at the time, by the wrongness of this. He also remembers, at the age of two or two and a half, going to the door around Christmas-time and hearing a black man say, ‘I’m the pepper boy’ – which Sydney, after many repetitions, realised meant that this was the man who delivered the newspapers, and who had come to the door to receive his customary Christmas present.³⁴ Other South Africans who were children in this era also remember the extraordinary power they wielded. Arthur’s friend Denis Kuny said that you could buy a pre-printed book of these passes or permits in a stationery shop. (He also recalled that his family had both a ‘boy’ and a ‘girl’ as servants, and that an aunt of his employed only black men as servants, required them to dress in short white pants, and addressed them all as ‘Jim’.³⁵) Jules Browde, like Denis Kuny a longtime friend and anti-apartheid lawyer colleague of Arthur’s, similarly speaks of being asked by his father to write a pass for their servant Solomon: ‘I would write, “Please pass boy Solomon,” and not think much about it, and Solomon would thank me for writing it … and the police would let him go because he was in possession of a note written by a twelve-year-old boy.’³⁶ Arthur no doubt shared his older brother’s reactions. At the same time, the Chaskalson boys seem to have lived in a world that except for servants was almost all-white. Arthur apparently did not have the experience of his mentor Bram Fischer, of being friends with black children and then seeing in himself as an adult the taint of irrational prejudice.³⁷ His own recollection in a 2007 interview was that ‘I grew up as a little white boy in a middle class home in an area where I met other little white boys and girls, and that’s how I grew up’.³⁸

But what sort of child was Arthur himself? By his own account, he was shy – and his shyness remained with him all his life. ‘I was a shy child,’ he wrote, and in the years ‘after the death of my father I tended to tag on to my brother and his friends.’ A memory that he had from kindergarten, he wrote, ‘is of being too shy to put up my hand in “class”, which was required if you needed to go to the lavatory. That led to various accidents, but did not cure my shyness.’ If he was frightened, he was also vigilant: on the bus home from kindergarten, ‘I was always anxious that I might lose my ticket and be caught without one. I would sit with the ticket clutched tightly in my hand throughout the ride.’ His brother says that Arthur was always very dutiful.³⁹

But he was not irredeemably so. He always sat upstairs on that bus because ‘that was more exciting and you could look out from there’. On visits to his grandmother’s flat, he remembered, ‘my brother and I would go on to the balcony to play. We would take grapes from a bowl of fruit or whatever else was suitable and drop it on the passers-by, ducking down immediately we had dropped the grape to hide.’ At home, the boys played by a river or stream at the bottom of the hill on their street.⁴⁰

Similarly, the boys would spend holidays at the farm home of their cousins the Lunzes, in the area of Leslie, east of Johannesburg, which was then the site of a Jewish farming community. (The two Lunz boys, like the Chaskalsons, may have been at the farm only for vacations, because they had moved to Johannesburg to live with their grandparents.) Sydney recalls that ‘It was a great place for young boys to holiday, we each had a horse to ride, there were acres and acres of farmland, fruit orchards, and an irrigation dam – there were pellet guns as well and we, I am afraid, shot lots of birds which we passed on to the farm labourers for food. I remember one day, climbing through a barbed wire fence, nearly stepping on a snake – which the four of us (the two Lunzes and the two Chaskalsons) dispatched with stones.’⁴¹ As Sydney’s reference to ‘the farm labourers’ reflects, there were black families living on the Lunzes’ farm. Aubrey Lunz, Arthur’s first cousin, remembers that they became friends with some of the black children on the farm and with some of their families; he also remembers that, although the Lunzes treated their farm labourers more humanely than some farmers did, there was a lot that people overlooked in those days.⁴² But it seems that these contacts with black children were only fleeting moments in Arthur’s young life.

At the age of nine or ten, Arthur was once riding his bicycle home from school, ‘racing ahead of my brother. I rode into an uncontrolled intersection and collided with a car that was driving in the cross road and also had not stopped. I was thrown up into the air and landed on the ground near to a post box. I got up and dusted myself down … I picked up my bicycle which, like me, had miraculously survived the collision, and continued home on foot with my brother in close attendance. When I got home and reported what had happened, I said that my brakes had failed which was the best excuse I could think of.’ Though a local bicycle shop found nothing wrong with the brakes, Arthur thought that his mother ‘was so pleased that I had survived the accident unscathed that she was probably willing to let things be with no more than a rebuke and a warning to be careful in the future’.⁴³ So we know that Arthur was capable of mischief and high-spirited play and even recklessness, and that he might concoct an excuse when he was caught – and that his mother, distant or not, loved him.

He did not lose his capacity for mischief as he grew older. At the age of 14 or 15, he and a friend were on the train that took students to several schools in Natal. This train had separate sections for boys and girls. Arthur’s friend asked him to go with him as they sneaked into the girls’ section to visit a girl he knew. ‘We got off the train at one of the stations at which the train had stopped and ran round to the girls’ side, found our way to the correct compartment and stayed together for some time. While we were still there we heard the noise of the conductor approaching. Fortunately the train stopped and we were able to get out of the girls’ compartment and run round to [the] other side of the train and our compartment without being caught by the conductor. But we had been spotted and the conductor had seen the compartment from which we had run.’ An investigation led to Arthur’s being told to call on his headmaster. ‘I did that with some trepidation. The headmaster wanted to know what we had done. I told him that we had talked. Had we kissed or touched the girls? I said no – truthfully, in fact. He seemed uncertain, and said that he would think about the matter and may have to ask us to leave the school. Despite that dire threat, nothing happened.’⁴⁴ We might infer from this episode that while Arthur was capable of mischief, he was shy with girls.

He was athletic too. In fact, he was an outstanding athlete, even though he ‘was not a very big guy’ until a growth spurt in his last year of secondary school and first year of university. (He would become a tall man, 6 feet 2 inches.) On one occasion when he and his brother were at the same school, they played on the same side in football; his brother recalls, ‘Arthur dribbled the ball down the field, passing to me at the goal mouth, and I then scored. This happened nine times, and after the game the games master said, “That’s the last time I let you two play together.”’ Later Arthur would be chosen for the combined South African Universities team, as a goalkeeper. He was equally good at cricket, and the backyard cricket players at their house every day included a set of boys who would grow up to play for provinces or for the country. His brother remembers ‘Alan Melville, the [South African] cricket captain, visiting our house and telling my mother if she let him coach Arthur he would play for South Africa. For some reason she would not agree.’ Nevertheless she repeated the story ‘ad nauseam’.⁴⁵ And Arthur became an excellent tennis player. His only weakness seems to have been his eyesight, which was poor enough to affect his performance. In secondary school, it seems, he never wore glasses while playing. At university, Arthur wore them for cricket but not for football, or so he maintained; according to Adrian Friedman, George Bizos remembers Arthur wearing glasses to play football, but Arthur ‘emphatically denies it’.⁴⁶

When I asked Arthur’s brother if Arthur was happy as a child, he answered that he was ‘very serious’. Arthur’s memoir does not speak to whether he was happy, but his recollections – with the stunning exception of his father’s death – do not seem sad. He rarely lost his temper, and in adult life too he would be known as someone who almost never became irritated. Sydney recalled only two occasions when Arthur lost his temper as a child. One took place when Arthur was playing cricket in their yard, and was called out; he responded by throwing the wickets about, because he felt he’d been wrongly dismissed. Perhaps this was the first dramatic demonstration of Arthur’s passion for justice.

The other incident which Arthur also recalled and wrote about was his initial entry into preparatory school. The school, a ‘small private school’ called Pridwin, was ‘not too far from our house’, as Arthur wrote. But on the first day, ‘I refused to get out of the car, and could not be persuaded to do so … One of the teachers … came to the car, picked me up, and took me kicking and screaming into the school grounds … The rest of the school children were already lining up to go into the school for classes, and I was taken … to a porch in front of the headmaster’s house which was adjacent to the school building, and kept there until I had calmed down and could be taken to the classroom where I was to begin my school career.’⁴⁷ Was this distressing moment another sign of his uncertainty about the security of his home, from which his father had been taken? What we do know is that this moment did not haunt Arthur at the school. Instead things seem to have gone quite smoothly.

At Pridwin, Arthur recalls, ‘the pupils were assigned to four houses named after the Knights of the Round Table – Bedevere, Galahad, Lancelot and Tristram. I was assigned to Bedevere, which was the house to which my brother belonged. I was proud of the fact that Bedevere had been chosen as the knight to take custody of the great sword when King Arthur was dying, but concerned that he did not initially carry out the instructions to throw the sword back into the lake. That troubled me and I saw it as a blemish on our house.’ Was this an early moment of attachment to a grand ideal? In any case, Arthur writes, this blemish ‘was more than made up for by the fact that my name was Arthur, which to my mind gave me an undoubted status’. He left Pridwin, as he writes, ‘as head boy of Bedevere, with colours in cricket and soccer, and poor eyesight’. His eye troubles – diagnosed as shortsightedness and astigmatism – were discovered when he was about ten, and required him to wear glasses in class, despite the fact that he ‘associated glasses with weakness and was ashamed to wear them’.⁴⁸

From Pridwin he went at the age of 14 to Hilton College, an elite boarding school in KwaZulu-Natal. His brother had also gone there, but they did not overlap; his mother postponed his departure to boarding school for a year because she felt that Sydney had gone too young. (Sydney, as I’ve mentioned, faced bullying from an anti-Semitic clique while he was a student there, and his fondest memories were not of being at school but of being required, every Sunday, to spend the day outdoors in the school grounds.) Because his mother broke the pattern of their schooling, Sydney recalls, ‘Arthur and I, after being close at Pridwin, never saw each other at school again.’ By the time Arthur got to Hilton College, Sydney was enrolled at the University of the Witwatersrand, and their time together was further limited because their school vacations were on different schedules. So it seems that Arthur, a boy without a father and with a rather unavailable mother, now also lost much of his interaction with his only sibling.

Nevertheless, Arthur recalled that when he went, ‘I was going to a strange school as a boarder without any friends. I was still a shy child, and the prospect did not appeal to me. But unlike my introduction to primary school, I did not protest and accepted that I had to go.’ He had become quite pragmatic, by the age of 14. He told Adrian Friedman that he ‘didn’t really enjoy [Hilton] but didn’t really suffer; just kept out of trouble and saw it as something to get through. No real pleasure from school and no real pain.’⁴⁹ According to his brother, he graduated in the top three of his class, but Arthur’s own recollection was that he was ‘reasonably good academically’.⁵⁰ His matric certificate (giving the results from his final high-school exams at the end of 1948) indicates that at least on these exams he did not distinguish himself: he gained four Bs, two Cs and a D, though that added up to a ‘first class’ pass. Many years later, when he was the head of South Africa’s Constitutional Court, Hilton College wanted to celebrate his appointment – but Arthur declined.

He finished Hilton College and matriculated in 1948, and the following year he entered the University of the Witwatersrand in Johannesburg. Even before he left Hilton he knew that he wanted to be a lawyer. He told an interviewer in 2007:

I always knew that I wanted to be a lawyer. When I say ‘I always knew’, when I was at school I had decided that I wanted to be a lawyer. I’m not sure why I decided that, it wasn’t as if there was any individual in my family who had influenced me in any way, my father died when I was young, I had a couple of uncles who were in the law [Willie Oshry, an advocate at the Johannesburg Bar, and Alec Oshry, an attorney in Johannesburg] but I wasn’t close to them and I certainly had no discussions with them about my future. I think I must have decided to become a lawyer from reading and I probably had a romantic idea about what lawyers could or couldn’t do and it was something I wanted to do. And it was strange that I knew very clearly already when I was in my Matric year, I knew that that’s what I was going to do and I knew I also wanted to be an advocate and not an attorney. So how all of that came about is not entirely clear to me, other than that I didn’t vacillate at all. Even when I went to university, I had to do an undergraduate degree merely as a stepping stone, not as anything which would carry with it anything of moment, whereas in fact it was quite useful but I didn’t go into it thinking that it would be of any importance, it was merely something I had to do before I could do law.⁵¹

This is a remarkable passage. Arthur knew where his future lay by the time he reached his matric year, and he never wavered from that course. His story reflects will and determination, and indeed Arthur told Adrian Friedman that he was a difficult child, in the sense that you couldn’t tell him to do something he didn’t want to do.⁵² This story also tells us that something about the law spoke to him very deeply, even though Arthur in 2007 was no longer sure exactly what it was. What Arthur says, however, is still illuminating: ‘I think I must have decided to become a lawyer from reading,’ he tells us.⁵³ Elsewhere he mentioned the Perry Mason books of Erle Stanley Gardner.⁵⁴ (This was of course not a unique pathway: Cyril Ramaphosa, with whom Arthur would work decades later, may have been attracted to law in part by Hollywood movies and in part by detective novels.⁵⁵) From these he could indeed have got ‘a romantic idea about what lawyers could or couldn’t do’.⁵⁶

It is striking that Arthur looked to reading rather than to the people around him to fire his imagination; it is striking too that what drove his choice was a ‘romantic idea’ rather than a more sober assessment of his life prospects. But if Erle Stanley Gardner stories caught his interest, he certainly could have done worse: Perry Mason, the protector of the unjustly accused, using his forensic skills for justice is perhaps a bit like Sir Bedevere, whose service to King Arthur so concerned him as a schoolboy. Arthur, the shy young man blessed with tremendous talents, had found from books a path to live an idealistic life.

His brother Sydney wanted to be a lawyer too, but in a family meeting in 1947 Sydney was asked, perhaps pushed, to give up this plan and go into the family business. With regret, he agreed. Years later, he felt that the choice had been the right one; the family business needed to be saved and built up for the benefit of the whole family, and this Sydney was able to do. Eventually, Sydney recalled, the shares of the company would be bought by South African Breweries (SAB), at a price five times what they were worth when he took over. This family wealth provided Arthur with a cushion against potential hard times, though he would go on to become a successful and well-paid advocate in his own right. He would tell his friend Denis Kuny that he had inherited enough money so that he didn’t have to work, but that he’d never touched these funds.⁵⁷ Many years later, while in the Constitutional Court, Arthur would recuse himself from hearing a case involving SAB because he still owned a substantial amount of its shares.⁵⁸ Yet Arthur was never asked to give up his career plans, perhaps because the family knew he would never agree. He told Adrian Friedman that it never crossed his mind to go into the business.⁵⁹ Sydney, who as a small child was pleased to hear the news of his brother’s birth, never held it against him.