Justice. Edwin Cameron

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СКАЧАТЬ version prevailed. The trial judge accepted that Operation Mayibuye had never become operational.

      The trial offered the accused an important opportunity. Most of them had, like Mandela, long been banned from public speaking and from being quoted in the media. Now the courtroom confrontation gave them a platform from which to voice their principled opposition to apartheid. And the newspapers were entitled to report on courtroom proceedings.

      In particular, Nelson Mandela’s statement from the dock rang across the world. It became a classic enunciation of a people’s claim to dignity and freedom. He explained his commitment to non-racial principles. He emphasised his support for independent institutions and the rule of law. And he detailed the ravages apartheid’s unjust racial laws inflicted on black South Africans.

      He ended by explaining that the struggle of the African people was a national struggle, ‘inspired by their own suffering and their own experience’. It was, he said, ‘a struggle for the right to live’.

      ‘During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.’

      Judge-President De Wet eventually convicted eight accused in the Rivonia Trial of statutory sabotage – the equivalent of treason. They were, in the order in which the judge announced his verdict, Mandela, Sisulu, Goldberg, Mbeki, Kathrada, Mhlaba, Mla­ngeni and Motsoaledi. Only Bernstein was acquitted.

      Mandela was prepared to face death for opposing apartheid, but that price was not exacted of him. Instead of the death sentences many expected, the trial judge on 12 June 1964 imposed imprisonment: life sentences. This was imprisonment for life – but, it was for life. The accused all left prison, years later, living. All eight lived to see democracy established in South Africa. One of them became democratic South Africa’s first President.

      XI: Law and the struggle for justice under apartheid – the legacy for democracy

      Soon after the Rivonia Trial ended, Bram Fischer, who had led the defence, was himself arrested. Released on bail, he obtained the court’s permission to go abroad to argue an appeal for a mining corporation before the Privy Council in London. He returned. But then, on 25 January 1965, defying his bail conditions, he went underground, eluding the courtroom, to continue his anti-apartheid work.

      Fischer was eventually re-arrested and he was put on trial. He was convicted of conspiring to commit sabotage. He, too, received a sentence of life imprisonment but, unlike the Rivonia trialists, he did not outlive the system that imprisoned him. He died in 1974. When he was already severely stricken by cancer, and close to death, the prison authorities released him. He died a few weeks later in the home of his brother in Bloemfontein.

      Bram Fischer’s life as a practising lawyer illuminates the complexity of the apartheid legal system. He thought it worth sustaining the struggle for justice through the law, and treasured his position as legal counsel. When he estreated his bail, the Bar Council, which he himself had previously chaired, hastily brought proceedings to strike his name from the roll of advocates. Fischer knew that more was required to attain a just system than only legal work. Unlike many other lawyers, including me, he sacrificed his legal practice, his home and his comforts to devote his life unconditionally to the struggle for justice.

      But Fischer felt acute anguish at his colleagues’ actions. He felt they were precipitate. It pained him that they did not accept that his motives were always in pursuit of justice.

      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 СКАЧАТЬ