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