In his autobiography Mandela describes Rumpff as ‘an able man’ who was ‘better informed than the average white South African’. He also said he was ‘fair-minded and reasonable’. But Mandela’s statements at the May 1952 meeting provided crucial evidence against him. He denied nothing he had said or done. Judge Rumpff convicted Mandela and the other Campaign leaders of breaching the statute. Mandela recounts that although Rumpff found that the accused had instigated acts that ranged from ‘open noncompliance of laws to something that equals high treason’, he accepted that they had consistently advised their members ‘to follow a peaceful course of action and to avoid violence in any shape or form’.
Despite convicting the accused, Judge Rumpff showed unexpected leniency. From time to time in his later judicial life, he would surprise detractors by coming up with pro-liberty rulings. Instead of the ten-year maximum sentence, the accused were each sentenced to only nine months’ imprisonment. And even more strikingly, the judge suspended the sentences entirely. No one would go to jail immediately. The condition was that the accused should not be found guilty of the same contravention within two years. Mandela’s work as a politician and also as a lawyer could continue.
But the Law Society, a statutory body representing the country’s attorneys, thought differently. Mandela’s criminal conviction raised pressing questions about his status as a practising lawyer. How could an attorney, who is an officer of the court, urge organised resistance to the law? How can a guardian of the law advocate that it be undermined? Lawyers must uphold the law. They can surely not be allowed to subvert it.
On this line of argument, the Law Society moved to take action against Mandela. The criminal conviction – Mandela’s first run-in with the law – gave them the trigger. They applied for the court to strike him off the roll of attorneys. The society argued that respect for the law was demanded of all advocates and attorneys. They were officers of the court. They had to encourage obedience to the laws that Parliament enacted, even laws they considered unjust. Mandela’s deliberate defiance of the law made him unfit to continue to practise as an attorney. The court should disbar him from practising.
The Law Society’s case was heard in Pretoria in March 1954. As always, because of the importance of a case concerning an officer of the court, two judges instead of only one were assigned. On the Bench were two English speakers, William Henry Ramsbottom and Edwin Ridgill Roper. Both were appointed before the National Party takeover in 1948, Ramsbottom in 1938, Roper in 1945. Judge Ramsbottom was a beloved and highly respected liberal judge, whom the apartheid government grudgingly appointed to the appeal court only very belatedly, when he was already ill: he died after serving less than two years on the appeal court.
Two experienced senior advocates appeared before the two judges to press the Law Society’s argument that Mandela should be disbarred. But Mandela himself came to court with powerful legal backing. He put his faith in a team of distinguished liberal advocates from the Johannesburg Bar – Walter Pollak, who wrote a famous textbook on jurisdiction (the power of a court to hear a case and grant judgment), and Blen Franklin, who later became a judge in the Johannesburg High Court.
As the two opposing teams of lawyers filed into the spacious, light-filled courtroom of Pretoria’s elegant nineteenth-century Palace of Justice on Church Square, what was at stake between them was much more than only Mandela’s fitness to practise as a lawyer. What was on trial was the moral standing of the Defiance Campaign, with Mandela at its forefront, and, beyond that, the profound ethical questions its challenge to apartheid’s oppressive laws posed.
How would the court respond? Would the judges react with crusty snootiness, like Winston Churchill, Britain’s Prime Minister at the time? Churchill denounced the Campaign as counterproductive and ‘very stupid’. Would their reaction be similar? Or would their judicial vision be sensitive to the longer, deeper moral issues of racial injustice and oppression?
After hearing argument, Judges Ramsbottom and Roper reserved their judgment for five weeks. At last, in April, they handed down their finding. It was a stunning reverse for the Law Society. The application to strike Mandela’s name from the roll of attorneys was refused. Mandela had triumphed. He would remain a practising lawyer.
In a stirring judgment, Judge Ramsbottom reasoned that ‘the mere fact that an attorney has deliberately disobeyed the law does not necessarily disqualify him from practising his profession or justify the court in removing his name from the roll’. He pointed out that though Mandela had engaged in misconduct – inciting disobedience to the law – the misconduct had not been committed in his professional capacity. On the contrary, the offence of which he had been convicted ‘had nothing to do with his practice as an attorney’.
Hence, the question wasn’t simply whether Mandela had been convicted of a crime. It was whether that crime showed that he was ‘of such a character that he is not worthy to remain in the ranks of an honourable profession’. And on that question, Judge Ramsbottom was unequivocal. There can, he said, be ‘only one answer’. ‘Nothing has been put before us which suggests in the slightest degree that [Mandela] has been guilty of conduct of a dishonest, disgraceful, or dishonourable kind.’ Nothing he had done, the judge said, driving the point home, ‘reflects upon his character or shows him to be unworthy’ to continue practising as an attorney.
On the contrary, Judge Ramsbottom said, using the racial terminology of nearly fifty years ago, Mandela’s motives were pure: in advocating defiance, he ‘was obviously motivated by a desire to serve his fellow non-Europeans’. The intention was ‘to bring about the repeal of certain laws which [he] regarded as unjust’. The method of producing that result was unlawful, ‘but his offence was not of a personally disgraceful character’. Hence there was nothing that rendered him unfit to practise as an attorney.
What about the fact that Mandela was unrepentant? He denied nothing. On the contrary, he remained defiant. He embraced his leadership of the Campaign, and refused to disavow anything he had said or done. The Law Society urged the court to take disciplinary action because despite being convicted of a crime he had ‘not expressed regret’.
This point was a potential winner for the Law Society. Most practitioners carpeted for wrongdoing ooze humility and repentance. Not Mandela. He remained unbowed in the face of possible professional ruin. But Judge Ramsbottom also dismissed this attack. He did so in a rousing codicil to his judgment. He said that if Mandela’s actions did not justify the court disciplining him, he could not be required to express regret: ‘If what he did was not dishonourable, his failure to express regret cannot make it so.’
It was an extraordinary judgment. In effect, it was a ringing endorsement of Mandela’s character and the motives behind his political work. Urging disobedience of apartheid laws was ‘not dishonourable’. On the contrary: it was ‘obviously motivated’ by a desire to serve. This came as close as two white judges of the courts of apartheid South Africa could come to saying that Mandela’s motives were noble, and that his support for the Defiance Campaign was righteous.
Mandela was deeply affected by the judges’ decision. He cited it later, when, after being released from prison, he addressed the very Law Society that forty years earlier had moved to disbar him. ‘Here I am,’ he proudly exclaimed, ‘with my name still on the roll.’
IX: Justice and the courts under apartheid – the Treason Trial
The apartheid authorities, though dismayed by the judgment, did not sit still. They acted forcefully to hobble Mandela’s mobility and to mute his public voice. The police tried to punch him down with successive banning orders. These restricted his movements, forbade him