Resistance is futile
30 July 2014 04:50 (South Africa)
South Africa

Death of a lion of the law, Arthur Chaskalson

  • Rebecca Davis
  • South Africa
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Former Chief Justice Arthur Chaskalson died on Saturday from leukaemia. There are few individuals who have played so significant and honourable a role in South Africa’s legal sphere. The loss of his incisive mind and steady reasoning is enormous, and obituaries will inevitably tend towards hagiography – for once, it could be argued, justified. By REBECCA DAVIS. 

“If a life could be mapped, that of the Honourable Arthur Chaskalson would surely appear as a straight line starting from a commitment to human rights, and leading, without deviation, to the bench of the Constitutional Court of South Africa and the position of chief justice. It is a long line, but an unwavering one.” 

So ran the justification for the decision to award Chaskalson the prestigious Gruber Prize for Justice in 2004. It is often said that it’s a pity we can’t attend our own funerals, in order to hear the praise we hope those left behind would lavish on us. In Arthur Chaskalson’s case, one consolation is that there was no shortage of tributes to him in his lifetime. He was wreathed with local and international awards and in constant demand as a speaker, continuing to give hard-hitting public addresses even in the last month of his life.

Born in Johannesburg in 1931, Chaskalson finished school in 1948, the year in which a Nationalist Party coalition took power and would proceed to usher in the system of Apartheid. At Wits, where he took a B Comm and then an LLB, Chaskalson was known for his sporting ability as well as his intellect: in 1952 he was selected for the Combined South African Universities football team. The characteristics that would mark his life in the law – the commitment to human rights cited by the Gruber Prize, and the willingness to ask questions which penetrated directly to the heart of the matter – were already in evidence during Chaskalson’s time at the Wits School of Law.

An illuminating story in this regard was told by his friend George Bizos, a contemporary of Chaskalson’s, during the symposium to mark Chaskalson’s retirement from the position of South Africa’s chief justice. At Wits, Bizos said, “I was under attack as a member of the Students’ Representative Council because of my radical views in relation to the treatment of black students.” A motion of no confidence had been brought against Bizos, and was aired publically. One first-year law student, Bizos said, stood up and suggested that everyone was asking the wrong question. “Surely the question is not what the university policy is, what it has been, and what it ought to be. The question is actually a simple one. Let us just ask what is right and what is wrong,” this student said. Bizos explained: “Throughout our friendship this has been the one question that Arthur Chaskalson always asked.”

Chaskalson was admitted to the Johannesburg Bar in 1956. From the beginning of his professional career, Joel Joffe writes in The State vs. Nelson Mandela, Chaskalson “had felt it his duty as a lawyer to undertake the defence of people who would otherwise have gone undefended.” In 1963 this principle was put to the ultimate test when Joffe asked Chaskalson to join a team of advocates to mount the defence for the Rivonia Trial: Nelson Mandela and nine other leaders of the ANC, versus the Apartheid state. 

Speaking to EyeWitness News after word of Chaskalson’s death, Rivonia Trialist Ahmed Kathrada remembered the first time he met Chaskalson: “When we were arrested for the Rivonia Trial and the first day we wet him, our senior advocate Bram Fischer said this young man will be the biggest advocate in the country.” When George Bizos gave the Bram Fischer Lecture in Oxford in 2011, he explained that it was partly Chaskalson who had convinced Fischer that his status as an Afrikaner made him the best possible candidate to lead the defence team, despite Fischer’s initial reticence (due to his secret involvement in the South African Communist Party, they later discovered). “Arthur Chaskalson said that no one else at the Bar could tell the judge and the world at large that the people in the dock did nothing different than what the Afrikaners did and more particularly what General CR de Wet, the hero of the Boer forces during the Anglo-Boer war, had done in 1914,” Bizos said. Fischer was duly persuaded to lead the defence.

The team had an uphill job: they were not told when the case would begin, or even exactly what charges the accused would face, and were given inadequate time to prepare the case. It was, however, expected that the dependants would likely be sentenced to death. Chaskalson played a key role in managing to ensure that the trialists received the lesser sentence of life imprisonment. In his book on the case, Joel Joffe explains that Chaskalson was the first to give final arguments. “Suddenly the Court was no longer a forum for third-rate amateur theatrics, but became a court of law,” he wrote. Chaskalson’s argument put paid to a substantial portion of the State’s case.

Almost half a century later, writer RW Johnson suggested in a 2007 article for the London Review of Books that Nelson Mandela’s famous speech from the dock was actually written by Bram Fischer. Chaskalson was sufficiently angered by the idea to write to the publication to correct it. “I was junior counsel in the defence team,” he wrote. “One of my responsibilities was to gather research material that Mandela requested while preparing his speech. He spent many hours working on it, on occasion editing it in the light of the comments of his colleagues and lawyers, and right up to the day it was delivered, made changes to the wording. The architecture, tone and thrust of the speech were his and his alone. The demeaning suggestion that he may not have been the author is simply untrue.”

Bram Fischer would be struck off the advocate’s roll in 1965, despite being defended in absentia by Chaskalson, Harold Hanson and Sydney Kentridge, and subsequently sentenced to life imprisonment. During Fischer’s incarceration in Pretoria Central Prison, Chaskalson looked after all Fischer’s books. His daughters later told how Chaskalson continued to subscribe to law journals in Fischer’s name and would dutifully inscribe them with his name up until the year Fischer died. Chaskalson gave the oration at Fischer’s funeral, despite knowing that it would earn him the suspicion of the security forces.

In 1978, Chaskalson founded the Legal Resources Centre, a human rights organisation specialising in public interest law, along with attorneys Geoff Budlender and Felicia Kentridge. Throughout his life Chaskalson was a passionate advocate for the extension of legal services to everyone in need. In an address to the Cape Law Society only a few weeks before he died, Chaskalson said: “Legal aid is crucial to ensure that the constitutional rights to a fair trial and access to courts are rights in substance and not merely rights on paper that are beyond the reach of those who need their protection. It is also important that organs of civil society should cooperate with the legal profession to facilitate the provision of legal services.”

Within four years, the staff of the centre had grown to number 13, and won one of a number of extremely important cases against the Apartheid government. During Apartheid, a black man employed continuously for 10 years at the same urban location could claim that place as his permanent residence and thereby win the right to have his family join him. But the fiendish Apartheid work-around for this was that workers were given annual contracts for employment, so the government ruled that 10 successive contracts at the same location did not constitute continuous employment and did not entitle the worker’s family to join him.

The Legal Resources Centre’s victory in the Rikhoto judgement held that 10 annual contracts did indeed constitute 10 years of continuous employment. This meant that thousands of workers’ families were able to be reunited, and a blow was struck against the plan of wider racial segregation. By the time Chaskalson stepped down as the head of the Legal Resources Centre in 1993, it had 63 advocates and attorneys and was “one of the best public interest law firms in the world”, according to University of Maryland law professor Clinton Bamberger. Chaskalson had also created unprecedented opportunities for black female law graduates (who at that time would particularly have struggled to find work) through the establishment of a fellowship programme at the centre in 1980.    

Chaskalson was bound for even more important work: leading the group of jurists who would make up South Africa’s first Constitutional Court, meeting for the first time in October 1994 to draw up the principles which would provide the court’s skeleton. The day after the Constitutional Court was formally opened on 14 February 1995, the 11 green-robed judges heard their first case. Their first ruling was on the unconstitutionality of the death penalty, and they would go on to rule on a host of other vital issues, including the recognition of same-sex marriages and the right of all South Africans to a roof over their head. 

Opening the new Constitutional Court building in 2004, Chaskalson pointed out that the legacy of the South African judicial system had been tainted by Apartheid: “Law enforcement provided the means by which dissent was curtailed and discrimination kept in place, and this drew judicial officers into the process of enforcing Apartheid”. The Constitution, he said, did not simply dismantle the old Apartheid laws. “It does much more than that. It demands that our society be transformed from the closed, repressive, racial oligarchy of the past, to an open society based on the founding values of democracy, human dignity, equality and freedom – values which must now inform all aspects of our legal order.”

To many, Chaskalson was the embodiment of the values of the Constitution. “What a voice his has been,” wrote Margaret Marshall, Chief Justice of Massachusetts, when he retired: “Precise, learned, thoughtful, compassionate and highly persuasive”. Chaskalson, who weighted the principle of human dignity particularly heavily, knew that the Constitution and the government might not always be cosy bedfellows: “Governments are not the natural protectors of rights,” he said in 2011. 

He repeatedly argued in defence of both the Constitution and the judiciary. In February of this year, he took on the argument that the judiciary was an obstacle to transformation, and comprehensively demolished it. Among his points was the fact that the ruling party largely controls the Judicial Services Commission, responsible for appointing judges, so any complaints about the pace of transformation should properly be laid with the party. He expressed his own tempered satisfaction with the pace of transforming the judiciary, though said that he believed the number of women should be increased.

Even after retirement, Chaskalson kept a hawkish eye on proposed legislation in the country. He was latterly concerned about both the Protection of Informational Bill and the Legal Practice Bill, which aims to “provide a legislative framework for the transforming and restructuring of the legal profession into a unified profession”. Above all, he said, the independence of the judiciary and the legal profession should be maintained. “We cannot foresee the future,” he said in his last address to the Cape Law Society. “It is important that we should protect the checks and balances we have, so that they are there should they be needed in the future to protect our democracy”.

In his own life, Chaskalson lived the principle of autonomy by never being afraid to issue critiques or correctives, even to the highest echelons of power. In 2008 Chaskalson and Bizos penned a joint memorandum of concern about the “tone of the debate” around the Zuma trial. “The question of whether Mr Zuma is guilty or innocent must be decided by the courts and not by his detractors or his supporters,” they wrote. “Putting pressure on the courts by making serious allegations of partiality, uttering threats of massive demonstrations, and expressing opinions in intemperate language are harmful to the judicial process, to our constitutional democracy, and to our country’s reputation.”

Chaskalson was also one of a number of high-profile South African Jews unafraid to criticise Israel when he saw the country’s actions as indefensible: in 2009 he signed a declaration describing Israel’s most recent attack on Gaza as “inhumane and disproportionate”. He also wrote a lengthy response to the Jerusalem Post defending the character of South African Justice Richard Goldstone, following attacks on Goldstone after the publication of his controversial UN report on Gaza.

But even when faced with differences of opinion, Chaskalson is described by those who knew him well as unfailingly courteous. In 2005, Geoff Budlender wrote of him: “I have to admit that sometimes the young lawyers at the Legal Resources Centre found [his courtesy] a bit excessive, particularly before he loosened up somewhat. I recall a time when we were discussing someone who was widely regarded as a rogue and a scoundrel. Each of us in turn said something rude and damning about him. Finally, we turned to Arthur Chaskalson. ‘Yes,’ said Chaskalson, ‘he is a rather unsatisfactory person.’”

Arthur Chaskalson’s was a life devoted to the law, and its ability to transform and uplift people’s lives. But he knew that the justice system alone was not sufficient. “Courts cannot be expected to carry the full burden of what may be required,” he said in 2007, giving the Sir David Williams lecture at Cambridge. “In a democracy parliament and civil society are also defenders of the rule of law and it is essential that they should play their part in its protection; that the centre should hold, that the best should not lack all conviction; and that things should not fall apart.” DM 

Read more:

  • Chaskalson remembered as jurist, scholar and lawyer, in BDLive

Photo: South African President Thabo Mbeki (R) is sworn in by Chief Justice Arthur Chaskalson (L) at the Union Building in Pretoria April 27,2004. REUTERS/Juda Ngwenya

  • Rebecca Davis
  • South Africa


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