Opinionista Lwando Xaso 18 July 2019

Mandela the lawyer putting white supremacy on trial

Having learnt all I have about the life and times of Mandela I can say with no shame but with all respect that I could not have walked even one mile in his shoes. Most people that denigrate his life today do not truly know him and unfortunately do not even have an ounce of the dignity and bravery that this man had.

It’s 1962 – Nelson Mandela is back in court again. At this moment in his life, he is a 44-year-old married man with children and a wife of equal stature.

Mandela is also a lawyer seemingly always at the mercy of the very instrument of his profession and oppression – law. A lawyer who both believed in and doubted the virtue of law. A lawyer who understood the anguish of seeking justice within a hostile environment – an anguish many lawyers can relate to even today. The dilemma of both being black and a lawyer can sometimes seem irreconcilable especially at a time when one could neither legally nor morally be bound to obey laws made by a Parliament in which they had no representation. At a time when most people in the justice system were white – except the accused.

By 1962 Mandela was fresh out of a gruelling five-year trial which saw 156 accused charged with high treason for the audacity of uniting across racial lines to articulate, as they did in the Freedom Charter, a noble and generous vision for this country. At that time the apartheid state was passing laws to regulate every aspect of the African’s life, from where they could exist, who they could marry, what ambitions they could pursue, what they could be taught and what assets they could own and who they were in relation to the “coloured”, the “Asian” and the “white”. The fact that the Congress of the People came together in an inclusive and transparent manner on a hilltop in Kliptown to imagine the best of what this country could be, refusing to believe in the worst of themselves despite all they had seen signalled the eventual defeat of apartheid. The Freedom Charter was a declaration that the people were never going to accept the lie that one race was better than the other.

The outcome of the treason trial showed that the abusive master could sometimes surprise with unexpected kindness proving that there was an opportunity in law that black lawyers could exploit because there were judges, no matter how much prejudice they harboured in their hearts, their legal minds had fidelity to justice. In studying the complexities of law, you will soon realise that justice and injustice are indivisible and that injustice will soon destroy the hand that inflicts it.

This betrayal of the biased heart by the rational legal mind is the outcome of the treason trial where the judge found that “on all the evidence presented to this court and on our findings of fact, it is impossible for this court to come to the conclusion that the African National Congress has acquired or adopted a policy to overthrow the state by violence, that is, in the sense that the masses had to be prepared or conditioned to commit direct acts of violence against the state”.

Undeterred by the five-year trial, Mandela did not recede, but was rather propelled more than before to risk it all for freedom. Shortly after the state’s disproportional response to unarmed protesters in Sharpeville in 1960 it had banned liberation movements forcing many leaders underground. Mandela recognising the futility of speaking peace and non-violence to a government that did nothing but respond with violence left the country to learn how to be the commander in chief of Umkhonto weSizwe. Many forget that for Mandela non-violence was a tactic, not a principle. If non-violence would yield results Mandela would have stuck to it but it did not so it was abandoned. He was arrested upon his return into the country finding himself back in the now-familiar battleground- the courtroom.

Shortly after moving to Johannesburg, Mandela obtained his BA degree which would allow him to practice as a lawyer. However, he knew what so many law graduates know today that the degree was neither a talisman nor a passport to easy success. Mandela joined the firm Witkin Sidelsky& Eidelman earning £2 a week as an articled clerk which he spent on candles so that he could study at night. Sidelsky warned Mandela about the dangers of politics – imploring him to just stick to law. As a white man, Sidelsky could not have understood that for a black person especially at that time the luxury of separating law from politics was impossible. Even if you chose not to participate in politics you were always participating – there was no opting out. Law itself was politics.

In 1943 Mandela had enrolled at Wits for a law degree. He writes that being the only black at Wits made him feel like an interloper – like he was a curiosity which was not a congenial experience. This is an alienation that young black people whether in South Africa’s premier universities or workplaces can relate to today.

At Wits Mandela was subjected to the racism of Prof Hahlo who told his class that Africans and women are not disciplined enough to be lawyers. And indeed Mandela fulfilled Hahlo’s prophecy by failing miserably at Wits. Many young black students of today who are attempting to trail blaze know what it is like to succumb to such prejudicial stereotypes. I have previously written about the stereotype stress threat, a term that was first used in 1995 by Steele and Aronson who showed in several experiments that black university students performed more poorly on standardised tests than white students when their race was emphasised. I would not be surprised if Mandela failed because of that affliction – the burden of the stereotype unashamedly expressed by Hahlo.

Mandela failed also because of other familiar circumstances that many Black students still face today. When pleading with Wits to give him another chance – Mandela detailed his personal circumstances like the fact that he worked during the day and by the time he got home at night he was tired and hungry but despite his hunger he had to somehow take care of his family and study.

One day while working at the firm Mandela had an interesting encounter with the Basotho queen. Mandela couldn’t speak Sesotho and the queen asked him what kind of lawyer or leader would he be if he could not speak the language of his people. Mandela then realised his parochialism. What this exchange is about to me is more than the idea of language as a system of communicative words but language as a feeling, the feeling of empathy and relatability which is a language we can all speak because it comes from the heart. Much of the discontent in South Africa today is due to out of touch leaders and all that is lost in translation between them and the people

In 1962 Mandela was back in the same courtroom where the treason trial had unfolded. He was now facing two charges. The first was that in 1961 he had incited workers to stay away from work illegally as a means of protest and the second charge was that he had left the country without a valid passport for his visit to other African countries.

Bob Hepple writes that Mandela decided to conduct his own defence because, as he told the court, “this is a case of the aspirations of the African people”. Mandela had strategically decided that the trial would be conducted on a political basis, therefore it was obvious that such a defence could not be put forward by lawyers.

Quite symbolically and boldly, on the day that Mandela was to present an argument for the presiding magistrate to recuse himself, Mandela appeared in court dressed in his traditional clothing, a kaross, rather than the expected suit and tie. In his autobiography, Mandela explained, “that day I felt myself to be the embodiment of African nationalism…the kaross was also a sign of contempt for white justice”. In a legal system intent on diminishing his identity, Mandela would reinforce his African identity against the stark white background of apartheid’s court.

To me, this is also an example of Mandela speaking the people’s language through the vernacular of clothing – building bridges between himself and other Africans using clothing. Those who may not understand the politics and legalese of the courtroom would no doubt understand the message he was sending through his traditional clothing. In this way he was rising up to the challenge posed by the Basotho queen – he was being the leader that spoke the people’s language.

Mandela had available to him strong legal reasons to ask the Magistrate to recuse himself such as the fact that he had seen the Magistrate fraternising with the members of the security police, but this was not to be a legal trial. As Mandela put it – white supremacy was on trial and he, therefore, needed to make a political argument against the justice system. Mandela understood that apartheid was not about law but about politics. He saw this trial an opportunity to address inequality and injustice from inside the white man’s court.

This trial presented an opportunity for Mandela to carry on the struggle within the white man’s fortress. Mandela spoke of not feeling at ease in this white courtroom, asking “why is it that in this courtroom I face a white magistrate, am confronted by a white prosecutor, and escorted into the dock by a white orderly? Can anyone honestly and seriously suggest that in this type of atmosphere the scales of justice are evenly balanced?”

Mandela said he should feel at ease in the courtroom with the assurance that he is being tried by a fellow South African who does not regard him as an inferior. He expressed his hatred for the set up of the courtroom as it made him feel black in a white man’s court. Unfortunately, Mandela was unsuccessful in his defence and was sentenced to five years in prison but would not come out for another 27 years because shortly thereafter he was back in court again for the Rivonia trial. Having learnt all I have about the life and times of Mandela I can say with no shame but with all respect that I could not have walked even one mile in his shoes. Most people that denigrate his life today do not truly know him and unfortunately, do not even have an ounce of the dignity and bravery that this man had.

The speech that Mandela made in court still resonates more than five decades later where there are still pockets of white supremacy that need to be challenged. Where black students do not feel at ease in white universities and white corporates. It resonates when one walks into the Constitutional Court of South Africa, a court that is distinctively African in its aesthetic and in its representation on the bench. We have built the kind of court which like Mandela’s kaross bears the pride of African identity as a court conceived by African minds and built by African hands.

However, in so many aspects we have failed at transformation. In so many aspects nothing much has changed for many young black people who might as well be a Mandela in Hahlo’s class or a Mandela in a white man’s world. DM

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