It was plain, even to a fresher law student, that his judgment was a major setback for the apartheid Parliament’s efforts to create a police state in South Africa.
VII: Civil liberty, anti-apartheid activism and the Dean’s judgment
Chief Justice Ogilvie Thompson’s judgment drily pointed out that the prosecution had led ‘no evidence to show that any member of the ANC, or any other political offender, terrorist or saboteur, entered upon, or continued to engage in, the activities of that body because of any assistance obtained, either by himself or by his family’ from the funds the Dean administered. The Judge was saying that for the prosecution to succeed, it had to bring proof that the unlawful deeds of an anti-apartheid combatant resulted from the help the non-combatant gave.
For the prosecution to present evidence of this sort was almost impossible. Which anti-apartheid operative, even one who had turned to give evidence for the police, as some did, would say in court that money for studies, or food for the family, or legal fees, had boosted revolutionary anti-apartheid operational activities? The truth was that the Chief Justice was setting an extremely high bar – one the prosecution would rarely be able to surmount.
And that provided an answer to the crucial legal question in the case. Did doing what the Dean did – helping people who were on trial or in prison for opposing apartheid, and their families – ‘aid’ or ‘encourage’ terroristic activities within the words of the statute? The answer might well have been Yes. The statutory wording was wide enough to mean that anyone providing support to anti-apartheid causes was participating in terrorist activities. If that was what the appeal court had decided, the result would have been the police state that many feared Verwoerd’s hardline successor as Prime Minister, Balthazar Johannes (John) Vorster, was seeking to establish.
But Ogilvie Thompson’s deft ruling put an end to that. With an elegant sweep of his judicial pen, he brushed away the prosecution’s insistence that supporting ANC trialists and prisoners amounted to supporting the ANC: ‘Knowledge that his family is receiving some assistance while he is serving a prison sentence (or while he is outside the Republic’s borders engaged in terroristic activities) is no doubt some solace to the individual concerned; but that can hardly be regarded as an intended boosting of morale in such a degree as to qualify as promotion of the activities of the ANC.’ So providing ‘some solace’ to revolutionary operatives was not in itself unlawful. The Dean was in the clear.
The practical impact of these rulings was momentous. They sliced through the potentially unlimited scope of the Terrorism Act. And since it was almost impossible for prosecutors to provide evidence of the kind the Chief Justice required, his ruling blasted a torpedo through the hull of some of the statute’s most menacing provisions. In doing so, it opened a life-sustaining space outside the whites-only Parliament inside which opponents of apartheid could continue to breathe and work inside the country.
Little did I appreciate, as I pored over Ogilvie Thompson’s dense words in the whites-only students’ law library at Stellenbosch, that his judgment would pave the way for my own legal practice and activism ten years later, when, after a byway into Latin and classical culture, and three privileged years at Oxford as a Rhodes Scholar, I eventually embarked on my career as a practising lawyer at the end of 1982.
Still less did I appreciate that, with the brave decisions on coloured voters, and Oliver Schreiner’s dissent, the ruling in the Dean’s case tremulously lit a pathway towards a future constitutional state for our country.
Ogilvie Thompson’s judgment setting the Dean free meant that lawyers and philanthropists and activists could support ANC- or PAC-aligned causes as long as they steered clear of advocating violence and of direct links to the organisations themselves. Over the following two decades, the activities of countless internal activist organisations like the United Democratic Front, the Release Mandela Campaign, the Soweto Parents’ Crisis Committee, the Detainees’ Parents Support Committee, the black trade union movement from 1979, and independent white-led organisations like the End Conscription Campaign and the Black Sash itself, remained possible because of the lifeline Ogilvie Thompson’s judgment threw them. My own work with many of these organisations in the 1980s was possible because of the Dean’s judgment.
VIII: White judges, the Defiance Campaign and attorney Mr Mandela
All that lay in the future. For now, spending long hours browsing through the books in the university library – often reading anything but the cases our lecturers said we must read – I came across a decision that immediately soared to the top of my list of all-time most favourite judicial decisions. It was the first judicial ruling involving Nelson Mandela – and it cast vivid light on President Mandela’s subsequent personal stand on judges and the rule of law, and on what judges can mean to a democracy. Delivered in April 1954, just over a year after I was born, it was called Law Society v Mandela. It concerned the Defiance Campaign – and the role in it of a tall, ruggedly built, charismatic and impressively talented 35-year-old attorney, Nelson Rolihlahla Mandela.
The white supremacist National Party’s hardline racial policies after 1948 caused the ANC to rethink its strategies. It decided on a radical shift. For forty fruitless years it had tried the gentle-handed route of petitions, deputations, meetings and polite persuasion. Now, roused by its imposing Youth League leader, Nelson Mandela, it embraced a new tough line: militant nationalism, mass action, boycotts, strikes and civil disobedience. The aim? To scrap all laws differentiating between white and black, to obtain full and equal voting rights for all, with direct representation in Parliament, and to abolish the pass laws and other unjust statutes.
The main tactical vehicle for the new strategy was the Defiance Campaign. It was the biggest organised programme of non-violent resistance South Africa had ever seen – and the first political operation pursued jointly by blacks, whites, coloureds and Indians.
The apartheid hardliners did not sit quietly by. In response to the ANC’s change of tack, Parliament passed a tough new law in 1950. It became a crime for anyone to advocate or encourage, or even defend, any ‘scheme’ aiming to bring about change in South Africa ‘by unlawful acts or omissions’. Breaching the law carried a possible ten-year jail sentence.
This only spurred the ANC and its allies on. In July 1951, at a joint conference they resolved ‘to declare war on Pass Laws’ and on segregation, and to embark on a mass campaign to repeal ‘oppressive laws’. The strategy? ‘Defiance based on non-cooperation’.
Civil disobedience involves breaking the law for moral reasons. The Defiance Campaign was in its very conception a scheme to bring about change in the country by unlawful acts. So by definition it flouted the new law.
At the forefront of the Campaign was the young attorney Mandela. He was a leading figure at the ANC’s 35th annual conference in Bloemfontein in December 1951, which endorsed and adopted the Defiance Campaign, and he played a key role in taking the idea from conception to the streets.
In May 1952 Mandela addressed a crowd of 500 black people. As always, security police moles were present, taking notes. Mandela, they reported, called on black people to resist implementation of objectionable laws ‘over our dead bodies’. He asked his audience to bear in mind that ‘you must do this in a peaceful manner – the greatest discipline is required of you’. But there was steel inside his glove: ‘We shall not rest,’ he told his audience, ‘until the gaols are filled.’
As the Defiance Campaign reached an uncertain peak, Mandela, the firebrand leader, doubled as Mandela, the practising attorney. Amidst his crowded political programme, he had to make arrangements for an effective professional life. In August 1952 he formed a law partnership with his fellow ANC leader, Oliver Reginald Tambo. They set up practice under the style and title of ‘Mandela and Tambo’ in Chancellor House, near the magistrates’ courts in downtown Johannesburg.
But a question mark hung over the new law firm. The meeting Mandela addressed under the watchful eyes of police informers endangered the future of Mandela the lawyer.
The