Justice. Edwin Cameron

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СКАЧАТЬ 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 apartheid authorities quickly arrested Mandela and other Defiance Campaign leaders. They charged them with breaking the tough new 1950 law by advocating change through ‘unlawful acts’. The Campaign leaders were brought to trial in Pretoria before Judge Frans Rumpff, whom the apartheid government had freshly appointed to the Bench in 1952. Defending the accused was a distinguished King’s Counsel at the Johannesburg Bar, Bram Fischer. A courageous man of singular principles, Fischer came from an elite Afrikaner background. His father was Judge-President of the Free State, and before him his grandfather had been Prime Minister of the pre-Union Orange River Colony. Eschewing elite family connections, Fischer joined the SA Communist Party to dedicate himself to the cause of non-racial democracy and social justice.

      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 СКАЧАТЬ