Most importantly, the decision showed that, even in a wicked legal system, judges committed to justice and fairness may do more good than harm.
The judges in the Law Society case were appointed before the apartheid hardliners came to power. After 1948, government vigorously set about appointing Afrikaners, many of them apartheid supporters, to the Bench but, to the surprise of many, quite a number of the new judges also showed an aptitude for independence, a commitment to the rule of law, and a readiness to respect fundamental legal principles.
The Afrikaner nationalists were proud of the Roman and Roman-Dutch legal heritage the white colonists brought to South Africa in 1652. They saw themselves on a mission of civilisation in Africa, and they considered their legal heritage an important part of their calling. The effect of this was that, even though the legal system was grotesquely disfigured because it enforced apartheid, occasionally some justice could prevail. I was an Afrikaans speaker myself – my mother was an Afrikaner Schoeman, whose forefather came to the Cape in 1724. Though my primary language has long been English, before Pretoria Boys’ High I went to Afrikaans schools. In literal terms both my first language and my mother tongue were Afrikaans. Hence my upbringing gave me a first-hand sense of the Afrikaners’ sense of mission: both its racial condescension, and its claim to elevation.
Afrikaner pride in ‘their’ legal system helps to explain why Judge Rumpff, against expectation, let the Defiance Campaign leaders escape jail. And it explains the reaction of Judge Quartus de Wet, who later determined Mandela’s fate in the Rivonia Trial, when a troublesome magistrate questioned Mandela’s status as a lawyer, demanding to see his certificate to practise, and addressed him disrespectfully (‘Hey, you’). Mandela brought a petition to remove the magistrate from the case. His motion succeeded. De Wet was outraged: ‘This is the sort of thing that brings the administration of justice into disrepute in our country,’ he said. He removed the magistrate, and ordered the case to start afresh before a new, presumably more respectful, presiding officer.
But Mandela’s confrontation with the apartheid legal order was only beginning. On 25 and 26 June 1955, barely a year after Judges Ramsbottom and Roper affirmed his status as a practising lawyer, a 3000-strong ‘Congress of the People’ at Kliptown in Soweto adopted the Freedom Charter. In defiance of his ban, Mandela covertly attended.
The Charter proclaimed that South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of the people. It demanded democratic government by the people, equality and human rights for all, and a share for all in the country’s wealth. It proclaimed that the land shall be shared amongst those who work it.
It concluded in rousing terms. ‘Let all who love their people and their country now say, as we say here: “These freedoms we will fight for, side by side, throughout our lives, until we have won our liberty.”’
To the apartheid authorities, determined to perpetuate white dominance, this was intolerable provocation. Heavily armed policemen disrupted the second day of the Kliptown meeting. They said they were investigating high treason, and were searching for subversive documents. Their quest culminated within a few short months. Before the end of the following year, at dawn on 5 December 1956, only a few months after the rigged Parliament voted to cut coloured voters from the common franchise, the police swept through the country, arresting 140 people. Sixteen more followed shortly after. Among the very first seized was Nelson Mandela.
All those arrested were brought to the Old Fort prison in Johannesburg, which stands on the high knoll between Braamfontein and Hillbrow, commanding both the northern and the southern approaches to the city. Its northern ramparts now shelter the Constitutional Court from the icy southerly winds that sweep through downtown Johannesburg in wintertime. The Fort was built on the instruction of President Paul Kruger at the end of the nineteenth-century to defend the Transvaal Republic against British gold-seeking imperialists.
Now, a half-century later, it held captive the most prominent extra-parliamentary opponents of apartheid. They were a distinguished array of churchmen, lawyers, writers, trade unionists, teachers, manual workers, businessmen, academics and community activists. They included blacks, coloureds and Indians, and also 23 whites.
The arrests signalled the start of the biggest trial in South African history. Two weeks later, those arrested were brought to face the charges. They appeared before a magistrate in a makeshift courtroom set up in downtown Johannesburg’s Drill Hall – because no court was big enough to accommodate them. All were charged with the offence of high treason under the Roman-Dutch common law. The charge, if proven, carried the death penalty.
The trial was in two stages. First there was a preparatory examination to see if there was enough evidence to formally try the accused in a superior court. For those against whom enough preliminary evidence was presented, a full trial then followed. (This two-stage process, though not abolished, fell into disuse when the current criminal procedure statute came into force in 1977.)
But if the apartheid authorities thought that arrest, arraignment and treason charges would silence the accused, they were badly mistaken. The accused and their legal team sprang a surprise. Far from adopting a defensive posture, they came out fighting from the very start. Instead of allowing the proceedings to focus on the technical question of whether the accused had engaged in acts that made them guilty of subverting the state, their defence turned the spotlight on the high ethical issue of how apartheid laws oppressed South Africans.
Under scrutiny were not so much the actions of those struggling for freedom and equality, but government’s intransigent and oppressive racial policies. The accused and their lawyers used the court proceedings to put apartheid on trial. This was to be a pattern over the next forty years. Apartheid hardliners sought to enforce their policies of racial domination by using the law against their opponents, and by using criminal trials, and the prospect of jail, to smother their work. In response, anti-apartheid activists and their lawyers used every public appearance, every procedural loophole, every legal opening and every conceptual ambiguity the law and its processes offered to thwart apartheid.
As the preparatory examination started in the Drill Hall, the silver-tongued advocate leading the defence, Vernon Berrangé, audaciously took the battle onto apartheid’s territory. He announced that ‘what is on trial here are not just one hundred and fifty six individuals, but the ideas which they and thousands of others in our land have openly espoused and expressed’. He went on: ‘A battle of ideas has indeed been started in our country, a battle in which on one side are poised those ideas which seek equal opportunities for all, and freedom of thought and expression by all persons of all races and creeds; and, on the other side, those which deny to all but a few the riches of life, both material and spiritual, which the accused aver should be common to all.’
His words rang out in media reports in South Africa and across the world. Those accused of treason were putting apartheid in the dock, and shaming it. I read Berrangé’s words years after I became a lawyer. They stirred my pride in what my profession could achieve. Far from being just grey-suited factotums, lawyers could help shape history – on the side of justice and fairness.
Twenty years after the start of the Treason Trial, public interest lawyers continued to embrace these very strategies to counter apartheid. At Wits University, John Dugard in 1978 established the pioneering Centre for Applied Legal Studies (CALS), which created an academic base for practitioners to attack apartheid while seeking to pave the way for a more just legal system. And Felicia Kentridge and Arthur Chaskalson were amongst those who soon after, in 1979, founded the Legal Resources Centre (LRC), a pioneering firm of public interest lawyers, which gained and has sustained enduring international admiration for its work. After three years in commercial and general practice at the Johannesburg Bar, Professor Dugard invited me in 1986 to move my practice to a base at CALS. I was excited to accept. My idea that the law could be more than only a rebuke, a restraint – as it had been to my father – and more than an instrument of oppression and injustice – as