Justice. Edwin Cameron

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.