And Justice For All. Stephen Ellmann
moments, would write of Fischer that ‘as an Afrikaner whose conscience forced him to reject his own heritage and be ostracized by his own people, he showed a level of courage and sacrifice that was in a class by itself’.22
On 9 July Fischer was detained by the security police – but oddly he was released less than three days later. Perhaps the police were trying to scare him into leaving the country, but he didn’t. Instead, on 23 September, he was arrested again, and now he was charged under the Suppression of Communism Act. He faced ‘an inevitable jail sentence’, which – to judge from the sentences his co-accused subsequently received – quite likely would not have exceeded five years.23
Bizarrely, however, the government had issued Bram with a passport two days before his 23 September arrest, after having previously refused to do so. Bram explained to the American scholar Tom Karis that it was ‘practically unknown to get bail’ in Suppression of Communism Act cases. But the passport, issued to enable Bram to argue a commercial case in London before the Privy Council, changed the calculus. ‘It was therefore on this rather extraordinary ground,’ he wrote, ‘namely that a passport had been issued to enable me to go to the Privy Council, that I was given bail in order to leave the country.’ In court, Bram declared, ‘I am an Afrikaner. My home is South Africa. I will not leave South Africa because my political beliefs conflict with those of the Government ruling the country.’ Perhaps the magistrate who granted bail was also impressed by the testimony of the attorney Rissik, who would ultimately post Bram’s bail money. He said of Bram that ‘I have absolute faith in his integrity. I would accept his word unhesitatingly, confident that he would carry it out’.24
Bram made the trip to London. He argued his appeal and won it. Then, despite being urged not to return to South Africa, where he faced the likelihood of conviction and imprisonment, he chose to return. Perhaps he did so out of political calculation, or perhaps out of moral obligation. Joe Slovo, a leading Communist who tried to get Bram not to return, spoke ‘of Bram’s “rather touching fidelity” as a revolutionary prepared on one level to sacrifice his life, but on another committed to personal honour and the importance of carrying out a political undertaking’. And then, having returned, he faced trial, which began on 16 November 1964. The evidence accumulated, though it included a prosecution witness, a longtime Communist comrade of Bram’s, agreeing with Bram’s lawyer that he was ‘a man who carries something of an aura of a saint-like quality’.25
Then, on Monday, 25 January 1965, Bram estreated his bail. Harold Hanson read out a letter to the court from Fischer, a letter Hanson claimed to have received that morning, but that in fact he had picked up from the Fischers’ home over the weekend. George Bizos also had a sense of Bram’s plans:
One Friday we walked back and forth in the long passage outside his office while he told me that he had come to say goodbye. For my own protection he would give no further details. He was worried that his actions might place his children in danger and asked me to help them if they were detained. We embraced. And he hurried off.26
Citing the accumulation of oppressive laws and the necessity for radical change to avoid a future of ‘appalling bloodshed and civil war’, Fischer wrote:
To try to avoid this becomes a supreme duty, particularly for an Afrikaner, because it is largely the representatives of my fellow Afrikaners who have been responsible for the worst of these discriminatory laws.
These are my reasons for absenting myself from Court. If by my fight I can encourage even some people to think about, to understand and to abandon the policies they now so blindly follow, I shall not regret any punishment I may incur.
I can no longer serve justice in the way I have attempted to do during the past thirty years. I can do it only in the way I have now chosen.27
He remained underground for 294 days. Along the way Rissik, who had posted Bram’s bail, was reimbursed. In one sense, Bram accomplished little politically – he made little progress in reconstructing the underground Communist Party, in particular. It also seems fair to say that he was a man in personal distress during these months, and understandably so. At the same time, what he did had symbolic significance: ‘On Robben Island Nelson Mandela and his colleagues came to hear that Bram was underground: though it reflected the kind of commitment they expected from him, they were elated, and it lifted their spirits … [His daughter] Ilse Fischer, meeting Africans of all descriptions, was told time and again how much her father was revered.’28
Almost as soon as Bram went underground, the Johannesburg Bar moved quickly to have Fischer struck from the roll. ‘Justice Minister Vorster publicly challenged the legal profession to condemn Fischer and take appropriate action against him if it were sincere in claiming the role of guardian of the rule of law,’ and the Bar responded within a matter of days. Arthur ‘wrote to the [Bar] council asking for reasons’ for its decision. ‘They replied that they don’t give reasons for their decisions.’ Sydney Kentridge and Arthur Chaskalson represented him, Sydney (the more senior of the two) taking the leading role. (George Bizos writes that both Sydney and Arthur ‘were livid at the Bar Council’s actions at striking Bram from the roll’.)29 Bram’s daughter Ilse thinks that perhaps Bram reached out to Arthur, whom he knew much better than Sydney did, to ask them to represent him.30 Fischer had himself been a leader of the organised Bar for many years, and he was deeply distressed by the rejection by his Bar colleagues. He tried to explain his actions in a letter to another lawyer:
When an advocate does what I have done … it requires an act of will to overcome his deeply rooted respect of legality, and he takes the step only when he feels that, whatever the consequences to himself, his political conscience no longer permits him to do otherwise. He does it not because of a desire to be immoral, but because to act otherwise would, for him, be immoral.31
In court, in hearings in late October and early November 1965, Sydney Kentridge would argue that ‘It was doubtful … if there were any member of the Bar that had known Bram who would be prepared to stand up and say, “He is a less honourable man than I am.”’ But his legal challenge was unsuccessful, and he was struck from the roll, in a judgment by the same judge, De Wet, who had presided over the Rivonia trial. George Bizos felt that ‘nothing hurt Bram … more than this case and this decision, for he had acted from the highest of principles, and yet had been considered unworthy and dishonourable by his colleagues’.32
When Bram was arrested, on 12 November 1965, George Bizos recalls that he ‘spotted Arthur Chaskalson alone in a corner at the back of the [main criminal court in Johannesburg, where Bizos was already engaged in a trial], and we were able to talk briefly about Bram’s arrest’. ‘He urged me to continue with the case and to control my sadness and despondency. Along with senior members of the Bar, he believed that Bram would be detained incommunicado and tortured. The security police would want to know his underground contacts. Arthur had been briefed by [attorney] William Aronsohn to visit Bram at Ilse’s request.’33
Arthur and others feared for the worst, but they reacted by mustering the resources they had to try to protect Bram. As it turned out, Bram was not being held for interrogation but rather for trial. Although General Hendrik van den Bergh ‘was curious how Arthur knew that Bram wanted to see him, he sanctioned the visit. Bram was as well as could be expected.’34 Arthur recalled that that day, the day after Bram’s arrest, ‘his attitude … was one of self-reproach at having allowed himself to be captured’.35
One other, chilling note was struck in this period. Roman Eisenstein recalls that General Van den Bergh called Arthur after Bram’s arrest and said, ‘Mr Chaskalson, I’ve got your friend.’36 The unspoken message, it seems, was that the security police believed that Arthur and Bram were in league, and wanted Arthur to know that he was in their sights too.
The result of Bram’s period underground was that the charges against him were now multiplied. George Bizos and Sydney Kentridge represented him; Arthur was involved in another political trial, which he offered to drop, ‘but Bram felt it important that he continue’. Even so Arthur was able to assist and even attend the trial when the other case was not in session.37