And Justice For All. Stephen Ellmann
believe that Arthur would have taken such a step.
But what were the lessons that Bram’s life imparted to those, like Arthur, who would make their life in the law over the coming decades? Undoubtedly there were many. Fischer gave much and took little, and his example of humility and commitment must have been tremendously inspiring. I want to focus here, however, on the issue that the final months of Fischer’s freedom so vividly posed: when is it morally right for a lawyer to violate the law? We’ve already seen Fischer’s answer, as he formulated it in his statement from the dock during his trial: ‘when the laws themselves become immoral, and require the citizen to take part in an organised system of oppression – if only by his silence and apathy – then I believe that a higher duty arises. This compels one to refuse to recognise such laws.’75
We can also understand Fischer’s answer in a different way – by taking account of what laws he in fact did violate. His colleagues in the Rivonia case understood that Fischer might well be guilty of crimes under the Suppression of Communism Act and the Sabotage Act, and they knew, of course, that he had estreated his bail. They also knew that he had undertaken the defence of the accused in the Rivonia case despite being himself involved in some way in the events taking place at Rivonia; they hadn’t known this before the case began but it had become evident during the trial. Thus they knew that Bram had departed at least to some extent from ordinary legal ethics, for a lawyer himself implicated in the acts for which his clients are on trial must face a potential conflict of interest between his own legal fate and that of his clients. When they realised this – at the moment that they saw a piece of paper with Bram’s handwriting on it being presented in court – their reaction, Joel Joffe said, was admiration of Bram’s bravery.76
But it seems unlikely that Arthur and his colleagues were fully aware of how far Bram had departed from the law. His biographer reveals that Bram had followed his commitment to his clients’ political cause very far indeed, and memoirs published since then have added additional details.
Outside the trial itself, Bram helped two Rivonia prisoners, Goldreich and Wolpe, to flee the country; he may also have given prior approval to their escape from jail. He also urged one of his Rivonia clients, Denis Goldberg, to try to escape (which turned out to be impossible).77 He encouraged Bob Hepple, who had been arrested at Rivonia but now was being called by the state as a witness for the prosecution, to flee the country, and provided him with ‘the detailed plans for the escape’. Hepple, himself an advocate, writes that he met secretly with Fischer to discuss his options. ‘This is a highly dangerous undertaking for us both. According to the rules of professional conduct, he should not be talking to a potential state witness. But I know that Fischer places his moral obligations to his “family” of political comrades above the rules he would strictly observe in an ordinary case.’78 Fischer also disposed of a car that had been used by Denis Goldberg, to avoid its being found at a cottage that was being used as a ‘safe haven’.79
Fischer’s law-breaking also extended to the trial itself. Since he had himself been involved in the debates over Operation Mayibuye, he must have known the truth about Govan Mbeki’s view that this proposal had been adopted, and so he must have known that the accused were testifying falsely to obscure this. Since it was Fischer who settled on the legal strategy of denying that Operation Mayibuye had been adopted, it seems very probable that he encouraged the accused to testify as they did. Perhaps most remarkably, at trial he took documents offered in evidence by the state that suggested potential targets for sabotage and passed on the information to his underground Communist Party colleagues, along with similar suggestions from some of the accused.80 In other words, he used his position as a defence lawyer to assist in the commission of further crimes. Denis Goldberg, not a lawyer, saw the choice Bram had made clearly: ‘Clearly there was a conflict: Bram was senior counsel for the defence, therefore part of the state machinery, while being a valued comrade. He resolved these conflicts in the only way consistent with his belief in freedom: he acted as a revolutionary – and it is in action, ultimately, that these moral conflicts are solved.’81
Nearly twenty years ago I wrote an article about Bram Fischer’s law-breaking, under the title ‘To Live outside the Law You Must Be Honest: Bram Fischer and the Meaning of Integrity’. I argued that Fischer’s choices may not have been the best ones, but that they were ‘the morally justified choices of a remarkable man’.
Though he violated many of his obligations under the law, he did so out of obligation rather than out of indifference to it. In countless ways, he honoured the bonds between people, and the obligations of humanity; his rigorous understanding of those ties led him to his fate. In this important sense, he always remained honest – faced with excruciating choices, he was prepared to take steps that were illegal and covert but only in the service of principle, in a lifelong effort to be, in his own qualified but determined words, ‘as honest as it’s possible for a human being to be’.82
I also asked, however, what the impact of Fischer’s choices might have been on other lawyers, and ultimately on the rule of law in a post-apartheid South Africa. Did his example, however impressive in and of itself, potentially teach others to disregard the bounds of law for more selfish reasons? This is a question that cannot be definitively answered – and even a rough answer to it may only emerge over the years, as post-apartheid South Africa pursues its own destiny. But I did argue, and with Arthur very much in my mind:
Many anti-apartheid lawyers, even in the midst of apartheid’s rule, remained deeply convinced of the moral significance and value of law. For these lawyers, Fischer’s life surely did not teach the lesson that law could be casually dispensed with in order someday to restore law. I suspect that, just as his gentle, self-effacing style of lawyering may have helped shape a generation of South African anti-apartheid lawyers’ courtroom tactics, so his decisions to violate the law out of principle contributed to many principled lawyers’ determination, not to disregard the obligations of legal ethics, but to fight relentlessly and courageously to overturn the world of apartheid. Whether or not lawyers like this ever felt themselves obliged to depart from the law – not widely and habitually but only, as Fischer did himself, in circumstances of surpassing moral crisis – the lesson they brought to the new South Africa would not have been disrespect for legal order. Rather they would have sought, and did seek, a Bill of Rights, as Albie Sachs writes in his remarkable memoir, to eliminate the horrors that ‘compelled the most honest amongst us to become the biggest dissemblers.’83
Did this appraisal capture Fischer’s impact on Arthur correctly? I asked Joel Joffe about the issue of Bram’s breaking the law for moral reasons, and he responded by asking if I had read Bram’s speech from the dock about this, which I have already quoted. He went on to say that he and Arthur saw this issue as Bram had, without their really having had to say much about it to come to this understanding.84
Arthur also wrote to me about Bram in May 2001, after I sent him a draft of this article. He spoke first about lawyers and law-breaking:
I am sure that many if not most lawyers have broken the law at some stage of their careers. Parking in a no parking area, breaking the speed limit while driving, buying liquor from an unlicensed restaurant, and a range of other transgressions which might be regarded as minor or possibly as the contravention of laws that were not binding on the conscience of the particular lawyer. No doubt gay lawyers and judges broke the law when same sex relationships were criminalised. And many South African lawyers would have broken apartheid laws concerned with residence, provision of liquor to black friends when that was prohibited, employing black workers without a permit to do so, hiding people from the police or helping them to escape, etc. etc. One can multiply the examples.85
The sense that this passage conveys is that Arthur took it for granted that ‘many South African lawyers’ would have broken apartheid laws, ranging from laws that created the routine injustices of apartheid, to those that in decent societies would be entirely appropriate but that in South Africa functioned to support apartheid’s oppression. Arthur and Lorraine themselves had sheltered a fugitive, and Arthur had helped Nelson Mandela move around while underground – so it seems fair to read Arthur here as speaking about himself as well as other lawyers. What justified