And Justice For All. Stephen Ellmann
of just 27 people reminds us of just how small a legal world Arthur was part of. This was not a world of impersonal distance but of overlapping acquaintance – more like a village than a cosmopolis.
Arthur graduated with a very good degree, as he himself acknowledged in an interview with Adrian Friedman. Yet among the many strong students who graduated that year, Arthur’s very good friend Joel Joffe, later Lord Joffe, firmly declared that Arthur was not the best.6 A group of very talented Jewish young men – overlapping with the group of social friends we have already encountered – seems to have led the class. Among these men Arthur came in fourth, behind Mark Weinberg, Sydney Lipschitz and Claude Franks. All four, as well as another Jewish student named Douglas Ettlinger, graduated with distinction, no small achievement. Of the others besides Arthur, Mark Weinberg was later knighted in England where, in Ellison Kahn’s words, ‘with innovative brilliance [he] revolutionized the life-insurance industry of Britain’;7 Sydney Lipschitz, now Lipworth, was also later knighted in England and served as chairman of the UK’s Monopolies and Mergers Commission; Douglas Ettlinger had a successful career at the Bar; and Claude Franks died young in a motor car accident.
What made this group of young South African Jews as high-achieving as they were? Jewish observance does not seem to have been what drove them; Arthur, for example, as we’ve already seen, was not particularly observant. Nor does anti-Semitism seem to have been an acute part of their early experience. Perhaps some part was their shared sense of guilt for having escaped both the Holocaust (because of being in South Africa) and service in World War II (because of their youth), as Arthur’s good friend Sydney Lipworth suggested to me. Perhaps they wanted to demonstrate their true abilities because they sensed how unfairly apartheid South Africa tipped the scales in their favour, as Sydney Lipworth also suggested. And, as he said, they certainly competed with each other, in class and in their tennis group.8
Arthur’s outstanding performance in the Wits LLB programme helped him to launch his career as an advocate. But what kind of experience was it for him? Were there transformative educational moments that shaped his future perspective on law and on apartheid? Perhaps. Joel Joffe does not recall Arthur being enthralled by any of the law school subjects, but Sydney Lipworth remembers that Arthur as a student loved the law, and that the two of them would study together in the library and argue points of doctrine. Arthur had decided he wanted to be a lawyer without knowing much about the profession; now, perhaps, he was finding that he was fascinated by the tools of the lawyer’s trade.
Whether the Wits faculty taught Arthur lessons about apartheid and the duties of lawyers in unjust legal systems is much less evident. The teachers of that era do not seem to have made it their business to critique the law that they taught. Adam Sitze has commented, ‘Academic jurisprudence in apartheid South Africa was composed of ostensibly opposed traditions, English common law and Roman-Dutch law, which together provided the state with the vocabulary for its self-justification and allowed it to insist on its adherence to the “rule of law”.’9 Wits in those days had four full-time faculty members in law. These included H.R. Hahlo, the Dean, whom Nelson Mandela recalls as ‘a strict, cerebral sort, who did not tolerate much independence on the part of his students. He held a curious view of the law when it came to women and Africans: neither group, he said, was meant to be lawyers.’10 Another faculty member was Ellison Kahn. George Bizos recalls that ‘Ellison Kahn, our professor of constitutional law, believed that Parliament had the power to deprive the coloured people of their vote with a mere simple majority’ – thus taking the pro-government position on a crucial issue of the day, the National Party’s attempt to deprive ‘Coloured’ South Africans of their franchise, despite its having been entrenched in the founding Act of the South African state. But it must be said that the government’s efforts provoked sharp legal and political controversy in South Africa, and Bizos and his first-year classmates ‘seized on a contrary article by Professor DV Cowen that argued against [Kahn’s] notion’.11
It may be that there was some room for independent, and anti-apartheid, thought within the boundaries of the Wits classrooms – or that the faculty’s doctrinaire approach encouraged independence as a matter of sheer reaction. Sitze suggests that South Africa’s ‘fine radical lawyers … typically arrived at their sense of political responsibility despite their training in jurisprudence, not because of it’.12 But this may not be right; perhaps there was simply pleasure and value for students like Arthur in learning how to reason within the complex coils of the law, and law school neither accelerated nor retarded their later decisions to use their deft legal reasoning skills to challenge the overall oppression that the law was working. Sydney Lipworth recalled their being particularly engaged by the class of a third faculty member, J.E. Scholtens, the professor of jurisprudence.
Whatever the impact of the classroom, the external world could hardly be ignored. Arthur’s years at Wits were the years when the National Party, elected to power in 1948, began its ruthless work of systematising South Africa’s already pervasive racial discrimination into the structure of apartheid. There is no indication that Arthur became friends with the few black students who were at Wits when he was, such as Nelson Mandela and Duma Nokwe (later a leader of the African National Congress (ANC) in exile for many years) – in contrast to George Bizos, who encountered Mandela and became friends with Nokwe during his student days. But Arthur had formed, or came quickly to form, his views on apartheid; he would tell Adrian Friedman that by the time he came to the Bar he knew that apartheid was awful, and that he was more than willing to represent people in political cases involving apartheid.13 His friend Rusty Rostowsky recalls that their group were ‘all anti-government’.14 Perhaps, as was the case for his friend Denis Kuny (who went on to a distinguished career as an anti-apartheid advocate), there was no ‘dividing line’ in Arthur’s growing political awareness, but rather a gradual process of growing into an understanding of how unjust apartheid was.15 Perhaps, as Joel Joffe suggests, Arthur’s sense of justice was simply innate, and clear.16
One moment of Arthur’s engagement in law school politics does stand out. In 1953, George Bizos – then in the last year of his own Wits LLB degree – was a candidate for re-election to the Student Representative Council. By then Bizos was a veteran of student politics, and a sharp opponent of apartheid. In fact, two years earlier, in his first year, he had been involved in a clash with the Dean, H.R. Hahlo, over whether black students would be permitted to attend the Bar’s annual dinner, held at a hotel where liquor was served (and from which blacks were therefore barred). Bizos and his allies had prevailed on that occasion, but now, in 1953, at a candidates’ meeting in the Law Faculty, the issue came up again. Bizos recalled the event in his autobiography, when Arthur spoke out and asked, ‘What is right and what is wrong?’17
Arthur’s words convey a judgement not only about apartheid, but also about life. The question is not what is traditional – or what is politic or deferential. The question is, ‘What is right and what is wrong?’ George Bizos and Arthur Chaskalson would go on to become lifelong friends, though that bond did not form until they became part of the legal team defending Nelson Mandela and the other accused in the Rivonia trial in 1963–4. And Arthur would ask more than once ‘what is right and what is wrong’ as he shaped the commitments that governed his life. Indeed, George Bizos once said ‘throughout our friendship this has been the one question that Arthur Chaskalson always asked’.18
But most of what Arthur did in his law school years does not seem to have been political. While he studied, he apprenticed as an articled clerk, the way of entry to practice as an attorney. (South Africa, like Britain, had a divided legal profession: in South Africa the courtroom lawyers, barristers in Britain, were called ‘advocates’ and members of the Bar, while the non-courtroom lawyers, solicitors in Britain, were called ‘attorneys’ and members of the Side Bar.) He did not intend to become an attorney, and in one respect this seems to have showed: he was late registering for his articles, and in fact only got the registration accomplished after his supervisor, an attorney named Charlie Johnson, became very agitated and told Arthur he had to take care of this. (After completing his articles, Arthur would take the attorney admission exam, but he was never admitted to practice as an attorney in South Africa.) But Arthur nevertheless had an outstanding placement for his articles, at the firm of Deneys Reitz.