Law, Justice and Morality in South Africa – The Past and the Present

22 April 2013

A speech by George Bizos SC at the Plato Week in South Africa for the School of Practical Philosophy

Introduction

Professors, academics, philosophers, students and interested guests:

  • It is my honour to have been asked to speak at Plato Week in South Africa by the School of Practical Philosophy. I would like to thank Stephen Meintjies and David Horan for making this week possible. For those of you who may not know me, I am of Greek origin and accordingly it has brought me endless joy to conduct some of my research in preparation for this speech.
  • Tonight I will traverse the topic of Law, Justice and Morality in South Africa: the Past and the Present and although I am neither the first nor the last person that will canvass this issue and the questions that arise therefrom, I hope only to add to the debate drawing from my experiences in both the pre and post democratic South Africa.
  • South Africa, viewed from the lens of law, justice and morality, is a society that for a long time was at odds with itself. A great tension existed, and in many aspects still exists today, between these three notions and how they can be reconciled – if in fact the attainment of harmony between these three notions is at all possible. Colonial South Africa, apartheid South Africa and now our democratic South Africa has always grappled with these notions to greater and lesser degrees and fluidly applied their principles or derogated from their core ideologies. Most notably, during apartheid, sophists supporting the regime would rely on what is termed Plato’s “useful falsehood”. In The Republic,[i] Plato argues that human beings (like the metals gold, silver, and iron and bronze) ‘possess different natures that fit each of them to a particular function within the operation of the society as a whole.’[ii] It is my view that Plato was incorrect when he chose this particular metaphor. Human beings have minds, feelings; they yearn for dignity, equality and freedom – the value that each human being can make to a society cannot, and should not, be pre-determined. All human beings excluding slaves were an integral part of Athenian democracy as they are today throughout the world.
  • I will quote a passage by Pericles from Thucydides’ History of the Peloponnesian War quoted by Professors A.S. Mathews and R.C. Albino in an article published in the South African Law Journal in 1966 at page 43:

‘Indeed it is true that in these acts of revenge on others men take it upon themselves to begin the process of repealing these general laws of humanity which are here to give a hope of salvation to all who are in distress, instead of leaving those laws in existence, remembering that there may come a time when they, too, will be in danger and will need their protection.’

  • Within the course of the next half-an-hour, I will, through reliance on published texts and law reports, question the notion of justice in both just and unjust societies; examine the notion of a just law and who decides that such a law is just; and propose that dialogue, or dialectic, is the best possible mean to achieving the most favourable balance between law, justice and morality in a given society – should the correct institutions be installed. I am of the firm view that not only is there potential for dialectic in public life in South Africa but that dialectic, between the state and the citizenry and between the citizens themselves, is fast becoming customary within our institutions.
  • In examining these questions and forwarding my proposition, I intend to rely, as a foundation, on the notions of law, justice and morality as found in the writing of Plato. Thereafter, I intend to apply these notions to the conduct of our society both before and after the initiation of our democratic dispensation.

The Notions of Law, Justice and Morality

  • Within the writings of Plato’s Republic, Socrates makes the argument that a state must possess four cardinal virtues or qualities – wisdom, character, discipline and justice.[iii]  His principle of justice is the idea of “one man one job, of ‘minding one’s own business’, in the sense of doing the job for which one is naturally fitted and not interfering with other people.”[iv] This sentiment resonates clearly in The Republic whereby Socrates, in dialogue with Glaucon, states:

‘At any rate, wisdom, discipline, courage, and the ability to mind one’s own business are all rivals in this respect. And we can regard justice as making a contribution to the excellence of our city that rivals that of the rest.’

‘Yes, certainly.’

‘Look at it again this way. I assume that you will make it the duty of our rulers to administer justice?’

‘Of course.’

‘And won’t they try to follow the principle that men should not take other people’s belongings or be deprived of their own?’

‘Yes, they’re bound to.’

‘Their reason presumably being that it is just.’

‘Yes.’

‘So we reach again by another route the conclusion that justice is keeping what is properly one’s own and doing one’s own job.’[v]

  • Plato, in laying his foundation for his notion of justice in The Republic, makes reference to the notion of justice and introduces his notion of law in Crito, or the Duty of a Citizen. It appears that through this dialogue, Plato’s intention is not to portray Socrates as a philosopher, as he would later do in The Republic, but “simply as a good citizen, who having been unjustly condemned is willing to give up his life in obedience of the laws of the state.”[vi] Through both The Apology and Crito, Plato portrays Socrates as a man who does not fear death.
  • As Socrates days draw near their end, he is approached by Crito who has planned for Socrates’s escape before he is finally condemned. However, Socrates will not flee and resolves to be put to death in accordance with the laws of the state which he sees as just – for him; it would be unjust and dishonourable to flee from his persecutors as for Socrates, “justice and institutions and laws are the best things amongst men.”[vii] Socrates engages with Crito and states:

“Then consider the matter in this way:—Imagine that I am about to play truant (you may call the proceeding by any name which you like), and the laws and the government come and interrogate me: ‘Tell us, Socrates,’ they say; ‘what are you about? are you not going by an act of yours to overturn us—the laws, and the whole state, as far as in you lies? Do you imagine that a state can subsist and not be overthrown, in which the decisions of law have no power, but are set aside and trampled upon by individuals?’ What will be our answer, Crito, to these and the like words? Anyone, and especially a rhetorician, will have a good deal to say on behalf of the law which requires a sentence to be carried out. He will argue that this law should not be set aside; and shall we reply, ‘Yes; but the state has injured us and given an unjust sentence.’ Suppose I say that?”[viii]

  • Socrates states further:

“Then will they not say: ‘You, Socrates, are breaking the covenants and agreements which you made with us at your leisure, not in any haste or under any compulsion or deception, but after you have had seventy years to think of them, during which time you were at liberty to leave the city, if we were not to your mind, or if our covenants appeared to you to be unfair. You had your choice, and might have gone either to Lacedaemon or Crete, both which states are often praised by you for their good government, or to some other Hellenic or foreign state. Whereas you, above all other Athenians, seemed to be so fond of the state, or, in other words, of us, her laws (and who would care about a state which has no laws?), that you never stirred out of her; the halt, the blind, the maimed were not more stationary in her than you were. And now you run away and forsake your agreements. Not so, Socrates, if you will take our advice; do not make yourself ridiculous by escaping out of the city.”[ix]

  • It thus becomes clear, through his dialogues, that Plato’s notion of law and justice carry both individual and collective traits. Individually, justice resides in the individual through an individual’s ability to find harmony and balance; to mind one’s business and to do one’s job; and to bind oneself to the laws of the state – which, in a democracy, are assumed to be just. Collectively, justice in the state dictates that citizens must respect what is not theirs and fulfil their individual duties to ensure harmony within the state. Therefore, for Plato, just laws are the product of a just society with democratic institutions. Arguably, morality does not need to reconcile itself with law and justice if democratic institutions have been installed. For it is these democratic institutions that determine just laws which should be morally unassailable. However, in our past, two leading figures in the struggle against apartheid had to fight against an undemocratic system without the benefit of democratic institutions. Both Nelson Mandela and Bram Fischer, without the benefit of democratic institutions, had to try, themselves, to reconcile the conflicting notions of law, justice and morality.

Morality at Conflict with Law and Justice

  • With the formalisation of apartheid in 1948 and the laws that flowed therefrom, the immorality of the suppressive colonial system became intensified by unjust laws favouring a small minority of persons in the society. Good men had to stand up and the system had to try to keep them down if it was to continue in its attempt to meet its end.
  • In 1954, the Incorporated Law Society of the Transvaal brought an application against Nelson Mandela who was, at that time, an admitted attorney of the High Court of South Africa.[x]  The Law Society, due to Mandela’s conviction for contravening section 11 (b) of the Suppression of Communism Act,[xi] sought to have his name removed from the roll of attorneys thus preventing him from practicing law anywhere in South Africa. Mandela opposed the application. In terms of section 11 (b) of the Suppression of Communism Act:

“any person who advocates, advises, defends or encourages the achievement of any such object (i.e. one of the objects of communism) or any act or omission which is calculated to further the achievement of any such object shall be guilty of an offence.”[xii]

  • Within the evidence led before the court, Mandela was convicted of the offence due to his involvement in the establishment of what is now termed the defiance campaign. Amongst other resolutions, in July 1951, the joint conference of the African National Congress and the South Indian African Congress resolved that:

“[d]efiance of unjust laws should take the form of committing breaches of certain selected laws and regulations which are undemocratic, unjust, racially discriminatory and repugnant to the natural rights of men. Rather than submit to the unjust laws we should defy them deliberately and in an organised manner and be prepared to bear the penalties thereof.”[xiii]

  • In essence, the court tasked with determining whether or not Mandela should be removed from the attorneys roll had to decide whether his misconduct, or refusal to be bound by an unjust law, impacted his professional capacity as an attorney. If so, he would have to be removed from the roll.
  • In ultimately finding that Mandela’s misconduct was not professional in nature and therefore dismissing the application. Ramsbottom J stated:

“While I think that in certain circumstances an attorney who is privileged to practise in the Courts may be expected to observe the laws more strictly than other persons, the 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. We are not concerned in this case with misconduct committed by an attorney in his professional capacity; the offence committed by the respondent [Mandela] had nothing to do with his practise as an attorney. It is clear, however, that the Court will in a proper case remove an attorney from the roll where he has been convicted of a crime which was not committed in his professional capacity,”[xiv]

  • There was no moral turpitude in the commission of his offence.
  • Anecdotally, whilst incarcerated on Robben Island some ten years later, the Law Society once again filed an application to have his name removed from the roll. Mandela responded that he would need two weeks in the Pretoria Court library to adequately respond to their application. The Law Society quickly withdrew the application.
  • Twelve years after Mandela successfully responded to the Law Society, the Society of Advocates of South Africa launched an application against Bram Fischer to have his name struck from the roll of advocates.[xv] Unlike Mandela, Fischer did not receive a favourable interpretation of the law. The facts briefly stated: On 25 January 1965, whilst on trial, together with 13 others, for contraventions of the Suppression of Communism Act, Fischer failed to appear before court after satisfying the court that he should be granted bail to attend to professional duties in London. He did not attend at that hearing again as he had gone underground. The Society of Advocates sought to have his name struck from the roll as, in their view and the view of the Court, his misconduct in absconding was professional in nature. The Society of Advocates was successful with their application.
  • For the purposes of this evening, I wish to recall two, now famous, letters that were directly related to the trial and the subsequent application. They are germain to our dialogue today.
  • On 25 January 1965, the day on which Fischer failed to appear before court, his counsel informed the Court that he had received a letter from Fischer dated 22 January 1965. Fischers counsel, Sydney Kentridge QC assisted by the late Arthur Chaskalson, read the letter to the court, it stated:

“By the time this reaches you I shall be a long way from Johannesburg and shall absent myself from the remainder of the trial. But I shall still be in the country to which I said I would return when I was granted bail. I wish you to inform the Court that my absence, though deliberate, is not intended in any way to be disrespectful. Nor is it prompted by any fear of the punishment which might be inflicted on me. Indeed I realise that my eventual punishment may be increased by my present conduct… My decision was made only because I believe that it is the duty of every true opponent of this Government to remain in this country and to oppose its monstrous policy of apartheid with every means in its power. That is what I shall do for as long as I can…

…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.”[xvi]

  • A further letter from Fischer dated 4 February 1965 was also made available to the Court, the relevant portions thereof stated:

“I have been following the Press and have seen the reports of a decision in terms of which it is said that the Johannesburg Bar council intends applying to Court in order to have my name struck off the roll of advocates.

I assume that the sole reason for the decision is that I deliberately absented myself from my trial and estreated my bail.

When an advocate does what I have done, his conduct is not determined by any disrespect for the law nor because he hoped to benefit personally by any ‘offence’ he may commit. On the contrary, 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.

Though there have always been persons who have been prepared, by way of protest, to accept such punishment in respect of political crimes as might be imposed by an independent judiciary, this is not what we face in South Africa to-day. However independent and fair the Bench in my case, I was facing, if convicted, an ‘indeterminate’ sentence which would be imposed at the sole and unfettered discretion of the Minister of Justice. We have already seen how this type of sentence has been imposed upon Mr. Sobukwe and we have already seen how European public opinion in this country, to its lasting disgrace, has failed to register any protest against this arbitrary, indefinite incarceration and has complacently accepted this total abolition of the rule of law…”[xvii]

  • In finding for the applicants and accordingly ordering that Fischer’s name be struck from the roll of advocates, De Wet JP made reference to the earlier application involving Mandela, upon which Fischer’s counsel had relied, and stated:

“…[t]he case is in any event distinguishable, inasmuch as the Court was apparently of the view that the respondent [Mandela] had been punished for his unlawful activity, which had ceased and was not likely to recur (a wrong view, as it turned out). But I would also say, with respect, that the Court appears to have overlooked the fact that it is the duty of an attorney to further the administration of justice in accordance with the laws of the country and not frustrate it.”[xviii]

  • The number of executive minded judges increased during the apartheid rule.[xix]
  • De Wet JP therefore clearly did not differentiate between the conflicting notions, at that time, of law and justice on the one hand and morality on the other. He bound himself strictly to the notions of law and justice in what was arguably an immoral system. However, Fischer, unlike Socrates in his discussion with Crito, derogated from his adherence to the law because he could not reconcile law, justice and morality within the apartheid system – he did not believe in the institutions that were supposed to create and uphold just laws. Fischer believed that the apartheid laws were manifestly unjust as they were not the product of democratic dialogue but rather enacted for the benefit of a few – they were, for him, immoral. Fischer too could not, in good conscious, work within a justice system of laws that were applied, in his mind, by illegitimate institutions. Therefore, in stark contradiction to the Athenian dispensation where just laws were deliberated upon by democratic institutions, under apartheid, just laws could not exist because they were not decided upon by a majority of citizens and therefore morality far from reconciling itself with law and justice was used to fight for democratic institutions. Three decades after Fischer and Mandela’s moral dilemmas, the democratic institutions that could reconcile the competing notions of law, justice and morality were finally installed in South Africa.
  • Coincidentally, in 2003, Fischer, who Mandela referred to as one of the “bravest and staunchest friends of the freedom struggle that I have ever known”, became the first South African to be posthumously reinstated to the Bar. A full bench comprising Ngoepe JP, Snyder and Ponan JJ in reinstating Fischer stated:

“It is not insignificant that the court, in the application to strike Advocate Fischer off the roll, noted that insofar as a future application for readmission was concerned, it was impossible for the court to foresee what would happen but that the court was concerned with the laws in force at that time and with the structure of society as it then existed in this country. That future time is now, a time when the Society of Advocates recognises that Abram Fischer QC was a fit and proper person to continue to practise and that a grave injustice was done to him.[xx]

The Respondent fully supports the application for the readmission of Abram

Fischer QC to the roll of advocates.”

Dialogue and Our Democracy

  • With the installation of democracy in 1994 and the drafting of first an interim and then a final Constitution which took effect in 1996, the people of South Africa sought to right the wrongs of the apartheid regime. Central to this task was drafting a Bill of Rights and the creation of the institution of a Constitutional Court which would stand as beacon of justice where people could rely on eleven Justices to ensure that the state and other citizens did not transgress constitutionally protected rights. Like Socrates in his dialogue with Crito, the Constitution and the institution of the Constitutional Court needed to be just as it needed to become the best thing amongst South Africans if the tension that existed between law, justice and morality that existed during apartheid was to be reconciled in the new South African democratic dispensation.
  • Central to the task of establishing a democratic order and conscious of the need to define a conception of democracy unique to the dictates of the people of South Africa, the first bench of the Constitutional Court, under the leadership of the late Chief Justice Arthur Chaskalson, who incidentally had been involved in Fischer’s trial, decided the early cases of Constitutional Court with the notion of dialogue firmly in mind because for the Justices dialogue was a notion most central to democracy and a practice that could heal the divisions created by the past. It was through dialogue that law, justice and morality could be reconciled. According to Justice Sachs:

‘The right to speak and be listened to is part of the right to be a citizen in the full sense of the word. In a constitutional democracy dialogue the right to have a voice on public affairs is constitutive of dignity. Indeed, in a society like ours where the majority were for centuries denied the right to influence those who ruled over them, the right “to be present” when laws are being made has deep significance.’[xxi]

  • The thinking of the Court, it could be argued, was influenced, to some extent, on the manner in which the Freedom Charter had been drafted some 50 years earlier:

“On the eve of the Congress it was reported that ‘for months now the demands have been flooding in to COP (Congress of the People) headquarters, in sheets torn from school exercise books, on little dog-eared scraps of paper, on slips torn from COP leaflets.’[xxii]

  • By relying on dialogue and the conception of participatory democracy where the demands of the citizenry are not only heard but acted upon, the Constitutional Court sought to enhance human dignity, a constitutionally protected right, in an attempt to align morality with law and justice. It would be a mammoth task, a task that is continuing. But the democratic project is well underway, by creating democratic institutions such as the Constitutional Court, law, justice and morality can be reconciled. Harmony may be able to be attained. The task for us now is to ensure, like Socrates, that the people of South Africa bind themselves to our laws because it must be our hope that they are not only just but that they are also perceived to be just. In the words of the late Chief Justice Ismael Mohammed, a colleague who I had the honour of working with, “whatever be the eventual content of laws, its object must always be consistent with justice.”[xxiii]

Conclusion

  • We, as South Africans, stand at a cross-road. The one road, line with securocrats, the plundering of the public purse and the attack on our democratic institutions, if taken, will create imbalance where law and justice cannot be reconciled with morality as our institutions and the very laws themselves will be perceived to be illegitimate. The other road is harder to follow, it requires all of us to work together with a common purpose, to do our job, and to ensure both individually and collectively that we bind ourselves to our just laws and act against those who break them. As great trees continue to fall within our forests and where the old-guard of moral authority wains, it is the youth who must work to build our country and ensure that morality can be reconciled with law and justice. To do so we must talk to one another and we must strengthen our institutions to ensure that our differences can be settled. In doing so, and in the words of the late Chief Albert Luthuli, we must always “give a charitable interpretation to each man’s conduct until such interpretation has been proved to be unsound,”[xxiv] but if the conduct of our countrymen is proved to be unsound, we must act to defend our laws, we must act to defend our institutions, and we must act to ensure the legitimacy of our democratic project for to do otherwise would be unjust. In this regard, the primary duty rests with the courts. We cannot, within our democracy, continue to defy the laws of our state. Despite some criticisms, in the main, we are governed by democratically elected representatives and have an independent judiciary but this does not mean that these institutions should not be constantly regulated by the citizenry.
  • This would be an appropriate time to read a quote by Benjamin Franklin, when the American society was at odds with itself, which acts as a stark reminder of the conflict between morality and law and how much harder the second of our two roads will be,  it reads:

“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”[xxv]

  • I would like to conclude with a quote by Thucydides from the funeral oration of Pericles:

For our government is not copied from those of our neighbors; we are an example to them rather than they to us. Our constitution is named a democracy because it is in the hands not of the few but of the many. But our laws secure equal justice for all in their private disputes, and our public opinion welcomes and honors talent in every branch of achievement, not for any sectional reason but on grounds of excellence alone. And as we give free play to all in our public life, so we carry the same spirit into our daily relations with one another. . . .We are lovers of beauty without extravagance, and lovers of wisdom without unmanliness. Wealth to us is not mere material for vainglory but an opportunity for achievement; and poverty we think it no disgrace to acknowledge but a real degradation to make no effort to overcome. Our citizens attend both to public and private duties, and do not allow absorption in their own various affairs to interfere with their knowledge of the city’s. We differ from other states in regarding the man who holds aloof from public life not as ‘quiet’ but as useless; we decide or debate, carefully and in person, all matters of policy, holding not that words and deeds go ill together but that acts are foredoomed to failure when undertaken undiscussed. For we are noted for being at once adventurous in action and most reflective beforehand. Other men are bold in ignorance, while reflection will stop their onset. But the bravest are surely those who have the clearest vision of what is before them, glory and danger alike, and yet notwithstanding go out to meet it. . . . In a word I claim that our city as a whole is an education to Greece, and that her members yield to none, man by man, for independence of spirit, many-sidedness of attainment, and complete self-reliance in limbs and brain. xxv

  • We will do well to have regard to Plato, Pericles and Thucydides.
  • I would like to thank Michael Power, a colleague at the Legal Resources Centre, who unfortunately could not be here this evening, for his assistance with research in relation to this speech, and I would like to thank the School of Practical Philosophy for allowing me to present this speech this evening.

 

George Bizos SC

Legal Resources Centre

22 April 2012

16th Floor Bram Fischer Towers

Marshaltown

Johannesburg

                        2001

Tel: 011 836 9831

E-mail: counsel@lrc.org.za

Endnotes


[i] Plato, The Republic, Penguin Classics, Translated by Desmond Lee (1955).

[ii] Ibid at page 116 (415a).

[iii] Ibid at page 130 (426).

[iv] Ibid.

[v] Ibid at page 138 (433d to 434a).

[vi] Plato, Crito, Gutenberg, Translated by Benjamin Jowett (1999).

[vii] Ibid.

[viii] Ibid.

[ix] Ibid.

[x] Incorporated Law Society, Transvaal v Mandela 1954 (3) SA 102 (T).

[xi] Act 44 of 1950.

[xii] Op cit note 9 above at page 104C.

[xiii] Ibid at page 105 to 106.

[xiv] Ibid at page 107C.

[xv] Society of Advocates of South Africa (Witwatersrand Division) v Fischer 1966 (1) SA 133 (T).

[xvi] Ibid at page 135C.

[xvii] Ibid at pages 135 to 136.

[xviii] Ibid at page 137E.

[xix] See Dugard Human Rights and the South African Legal Order – Princeton, Chapters 9 & 10, pages 279 – 365.

[xx] Rice and Another 2004 [5] SA 537.

[xxi] Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC) (New Clicks) at paragraph 627.

[xxii] Gilbert Marcus ‘The Freedom Charter: A Blueprint for a Democratic South Africa’ Centre for Applied Legal Studies, Occasional Paper 9, June 1985, 11.

[xxiii] Chief Justice Ismael Mohamed, The Second Bram Fischer Memorial Lecture, May 1998.

[xxiv] Chief Albert Luthuli, Let My People Go.

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The Legal Resources Centre is a public interest law clinic established in South Africa in 1979

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