And Justice For All. Stephen Ellmann
Bram Fischer’s memory through the years. In the 1980s Arthur and Joel would persuade Stephen Clingman to write Fischer’s biography. In the 1990s, after the end of apartheid, the Legal Resources Centre would establish a Bram Fischer Memorial Lecture. In 1995 Nelson Mandela gave the first of these lectures; Arthur Chaskalson gave the third, in 2000. Other Fischer lectures have been established as well, including a series now hosted by Rhodes House and another at the University of the Free State. Much earlier – probably when criminal charges were filed against him, since at this point he would have known his office would have to be closed55 – Bram had given Arthur his lawyer’s silk robe (though it was too small for Arthur, who was much taller than Fischer), his law library and his desk. The law library would find a lasting home at the LRC, and Arthur would take Fischer’s desk with him to his chambers as the first President of South Africa’s new, post-apartheid Constitutional Court. (The undersize robe was stored by the Chaskalsons in a playroom with a leaky roof, and after Arthur’s death Matthew found that it had been ‘completely destroyed’ as a result of storm damage.56)
In the 1990s efforts were also made to have Fischer restored to the roll of advocates. Initially those efforts were blocked on the ground that ‘only practising advocates may appear on the roll; someone who is no longer alive can no longer practise; therefore Bram could not be reinstated’.57 But the last were now first in South Africa, and Parliament was prevailed on to pass legislation to remove this barrier, the Reinstatement of Enrolment of Certain Deceased Legal Practitioners Act 32 of 2002. George Bizos would rely on this Act in successfully petitioning the High Court, on behalf of Fischer’s daughters, to reinstate him, in the 2004 case of The Application for the Reinstatement of Abram Fischer on the Roll of Advocates.
The High Court was fully sensitive to the historical implications of its decision. In 1965, as he approved the striking of Fischer’s name from the roll, Judge De Wet had quoted from a 1905 decision growing out of the Anglo-Boer War, Ex parte Krause, in which a leading judge of that day had spoken in favour of ‘as much as possible drawing a veil over the acts which were committed during the course of the war’. De Wet went on: ‘If the respondent were to apply for readmission at some future time, similar considerations may apply. It is impossible for this Court to foresee what will happen in the future. We are concerned with the laws in force at the present time and with the structure of the society as it exists in this country at the present time.’58 Now the High Court, sitting as a racially diverse three-judge panel, wrote:
It was, in our view, therefore appropriate that the application for his reinstatement also served before a Full Bench; but even more appropriately, before a court as representative of the diversity of our society as possible. This is the kind of society that Fischer fought for. The future time to which reference is made in the judgment for his striking off has now arrived.59
As all of these interconnections reflect, the bond between Bram and Arthur was strong and deep. It is tempting to think that perhaps Bram, close as he was to Arthur, might have offered Arthur advice about how he could best negotiate the years to come. He might have suggested to Arthur that he too should join the Communist Party, in which Bram had lived his life – or rather that Arthur should avoid joining any political party and instead should pursue a career that was emphatically lawyerly, as R.W. Johnson has suggested.60 But those who knew Bram respond that it simply was not Bram’s way to offer advice like this. George Bizos himself told me that Bram had not advised him and Arthur to be non-political.61 Joel Joffe emphasised Bram’s disposition not to offer such advice, and added that if Bram had advised people to join the Communist Party, half the Johannesburg Bar would have done so because Bram was so persuasive.62 Ilse Fischer Wilson also doubted that Bram had advised Arthur about how to handle the years ahead.63 Bram’s biographer, Stephen Clingman, wrote to me that he
never got the impression in talking with [Bram’s] colleagues – Chaskalson, Bizos, Joffe – that Bram ever expected them to follow him into illegality of any kind. He had a profound respect for individual choice, refusing to influence them in this respect – and in this respect (another paradox) he influenced them profoundly: a different kind of politics.64
Whether Bram gave Arthur advice about how to negotiate the years to come must remain uncertain. Bram was not a man to press his views on others, but that might not have been what happened at all. Arthur, who as we’ve seen had been profoundly affected by the trial – growing, as Denis Goldberg recalled, close to the accused in a way he had not been initially – might have felt that he wanted Bram’s advice and sought it out. Or he might not, and in the end whether he asked for advice is less important than what Arthur concluded about the situation he faced.
It is worth pausing for a moment on one point: whether Arthur, because of Fischer’s example or for any other reason, became a member of the Communist Party. Arthur was dogged by this charge during his lifetime. It appears that members of the security police may have imagined that Arthur took over the leadership of the Communist Party from Bram; thus Matthew Chaskalson, when he was working in 1991 for a commission investigating the city of Johannesburg’s intelligence bureau, encountered an ‘organogram’ which showed the Politburo at the top and, far down, the Legal Resources Centre.65 But no one has reported finding actual evidence to support these notions. On at least one occasion, moreover, Arthur successfully insisted on the insertion of an erratum notice in a book, The Awkward Embrace, which had asserted that he was a Communist Party member.66 Ken Owen, a prominent newspaper editor, went so far as to send someone to research the files at the Kremlin to look for evidence, but to no avail.67 After Arthur’s death, the now-legal South African Communist Party issued a statement claiming him as a member – but it subsequently withdrew the claim in the face of sharp rebuttals by Arthur’s surviving colleagues and friends.68 Among them was George Bizos, who declared: ‘Arthur was a democrat. There were no secrets between Arthur and myself. I know that Arthur was not a member of any political party. He would not join any organization that would place any impediment to his absolute independence.’69
Paul Trewhela, who spent some time in jail with Bram and fell out with the Communist Party, finds sufficient reason to believe Arthur was a Communist in the statement by Jeremy Cronin of the SACP that Arthur ‘was an SACP delegate to the CODESA (Convention for a Democratic South Africa) negotiations back in 1991’ – and in Arthur’s failure to deny this assertion.70 In fact Arthur had denied the assertion that he was a Communist, in insisting on the erratum page just mentioned, and Cronin himself, for his part, said that the Party ‘fully accept[ed]’ that its claim of Chaskalson’s membership was mistaken.71 But there was in any case no reason for Arthur to deny this assertion; representing a party is not the same as joining one, as advocate Paul Hoffman pointed out.72 In fact, well before CODESA, in 1990, Arthur had already joined the Constitutional Committee of the ANC. Undoubtedly Arthur was committed to the ANC’s cause in the negotiations, but he did not join the ANC.
To me, the comment by Arthur’s close friend and colleague Geoff Budlender, responding to a newspaper article by Tony Leon (former head of the Democratic Party), is compelling (and it’s worth adding that Leon himself, when I spoke with him, implied that he had misunderstood the circumstances when he wrote):73
It is matter of public record that Chaskalson was never a member of the SACP. The question of his political affiliations arose in the Sarfu case, when Louis Luyt applied for him and several other members of the Constitutional Court to recuse themselves. Dr Luyt’s attorney wrote to Chaskalson calling on him to respond to a series of questions relating to the recusal application. In his reply, Chaskalson stated: ‘For a brief period while I was a student I was a member of the Liberal Party. Apart from that I am not and have never been a member of any political party.’
So if Mr Leon asserts that Chaskalson was a member of the SACP, he is asserting that Chaskalson, acting in his capacity as president of the Constitutional Court, deliberately lied to a litigant before the court on an issue that was central to an application for his own recusal.74
It is true that admirable men, such as Walter Sisulu and perhaps Nelson Mandela himself, did conceal their Party membership – but the world in which