Nadine Gordimer – Student, writer and activist

By George Bizos SC, assisted by Samantha Brener, both at the Legal Resources Centre.  Delivered in the Great Hall of the University of the Witwatersrand on 18 May 2017

Nadine Gordimer was a world-renowned writer. She has been richly praised by many of the world’s most respected voices.

The independent Newspaper in London published the following – “Gordimer has undoubtedly become one of the World’s Great Writers . . .  Her rootedness in a political time, place and faith has never dimmed her complex gifts as an artist; her partisanship has not compromised her artistic distance.  Great writers can retain political faith; they can believe and create.  This is an important message for all aspirant writers of the next century.

Cecil Abrahams of the Chicago Tribune commenting on “My Son’s Story”, Nadine’s ninth novel, wrote “The novel abounds with the fine turn of phrase, the ironical twist that opens up thought to further exploration, the uncanny ability to enter the varied recesses of the human mind . . .MY SON’S STORY proves that in a changing society such as South Africa, Nadine Gordimer is well placed to portray “the fullness of life”.

The Star-Telegram wrote: “Only very lucky readers are familiar with 1991 Nobel Laureate Gordimer’s work. Join them.”

Margaret Atwood, herself a literary giant, wrote in an obituary for Gordimer “Despite her minute size, she was a huge presence – a voice of rectitude that spoke above the political din, addressing itself to our common humanity…. It’s difficult to imagine the history of the South African novel, indeed of the 20th-century political novel without her”.

Stephen Clingman, says about her “Nadine Gordimer is a most extraordinary observer of her society”.

I am very grateful to Clingman, whose work “The Essential Gesture” provided substantial assistance to me in writing this speech.

Nadine was born in 1923, to immigrant parents in a new place, and her formative years were spent in the mining town of Springs on the East Rand. Her first piece of fiction was published when she was thirteen. Between the time of that first piece and her death, Nadine wrote 15 novels, and a number of short story and essay collections. Her work was translated into at least twenty languages.

During her life, she received the Booker Prize, the Commonwealth Writer’s prize for the Best Book in Africa and, of course, the Nobel Prize for Literature. She was one of only four Wits alumni to have received a Nobel Prize, and of the four, she was the only woman. Karen Lazar wrote about her receipt of the Nobel Prize: “Instead of complying with the custom of being walked down the carpet to receive her award in Stockholm by a member of her government, she chose instead to be accompanied by a literary comrade from her “government-in-waiting”, the ANC’S … Mongane Wally Serote, this being 1991 and transition underway.”

Nadine Gordimer: The Student

Nadine’s time at the University of the Witwatersrand lasted one year only. She registered as an occasional student in English Literature and English Language in 1946. When asked, much later in her life, whether she ever considered doing an undergraduate degree, she dismissed the idea, saying that at 20 years of age, she had already read much more than was on the degree reading list. Although she was a student for only a short period of time, she maintained connections with universities in South Africa, and was closely associated with the National Union of South African Students, a national student body well-known for its opposition to apartheid.

I started my university career in 1948. The vast majority of the students were white, with very few Africans, Indians, Coloureds, Chinese South Africans and a very small number of Africans from neighbouring states. A substantive number had postponed their tertiary education to join the South African Army during the Second World War between 1940 and 1945. We were led to believe it was a war to end all wars. Then the National Party took power in the 1948 general election. The win for the National Party was a huge disappointment for a number of students, including those that had experienced the war, and hated the prejudice that Nazi Germany stood for. There was protest at Wits against the apartheid government. These students were calling for fundamental change.

During a sitting of parliament, Prime Minister Malan was asked about the situation at the university of the Witwatersrand: why black and white students were sitting in the same lecture hall; why white women and black men were walking around campus arm-in-arm? This was contrary to policy! His response was that he had been told by the University that those doing such things were “a small group of leftists”, and that they would be dealt with.

The next day there was a protest meeting at the Great Hall, at Wits University. I was in the front row. I raised my hand and stated unequivocally that if demanding equal treatment with our black fellow students made me a leftist, I was proud to be one. The next day the front page of the Transvaaler read “Linksgesind, en trots daarop. So het George Bizos gese”. This made me popular with most of the students. Nadine congratulated me on the speech.

I was elected four times to the Students Representative Council of the University of the Witwatersrand and represented Wits at the student assembly of the National Union of South African Students in 1953. At the organisation’s congress that same year, NUSAS’s affiliation to the International Union of Students became a controversial issue. Notice had been given that NUSAS should disaffiliate from the international organisation. More than enough votes had been secured that the motion would pass. We were encouraged to support the motion on the basis that the International Union of Students was an instrument of the Soviet Union (among other reasons) and were told that it would be preferable to join a democratic organisation, such as the International Student Conference. I argued that we should not assist those who wanted to create division in the world – between East and West, capitalist and socialist, rich and poor, that we should remain non-aligned and that the International Student Conference was a creation of the CIA. At the time I had no hard evidence to support this. Years later John Didcott, who was by then a judge, told me that it had been exposed in Time magazine that the CIA had formed and financed the International Student Conference. Didcott was appointed a judge of the Natal Provincial Division in 1975 and in 1994 he joined the Constitutional Court bench.

From 1948 onward, there remained anti-government feeling amongst the students. Although I was elected four times to the SRC, I was never an office bearer. The position of head of the SRC was, at the time, taken up by great names such as Philip Tobias, Sydney Brenner, Harold Wolpe, Godfrey Getz and Richard Goldstone.

I remained at Wits for my second degree, and thereafter became a member of the convocation committee. I have always considered myself a Witsie.

Although Nadine remained at Wits for only one year, she regularly attended protest meetings. She and I were friendly through my years of serving on the SRC. We discussed various issues, and she often gave suggestions about how she felt things ought to be done. In later years, she moved into a house that was just walking distance from Wits.

I have wondered to myself whether the treatment of women at Wits at the time may have contributed to Nadine’s estrangement from the University. I recall an incident where a Professor Scholtens told the first year class of law students that, out of a first year class of 45, only a third would be promoted to second year. There were three women in the class. Scholten’s words were “…and if they are women, they might as well give up”. Of the three women, two failed, and the one that passed became a teacher instead of practicing law. Of course, Nadine was not registered for the law class, but it is this kind of approach that she would not have tolerated.

In a similarly interesting story, during my time at law school, we reached that time of year when the law dinner was to be held. The law school did not allow black students to come to the dinner. The usual practice was for the student body to contribute 100 pounds for the guests. This year, 1952, the SRC, of which I was a member, passed a resolution in protest, that the usual 100 pounds would not be given, and that students would be asked not to attend the dinner. We won the round! The black students were allowed to attend, and 8 of them arrived at the dinner. The senior judge was Judge Ramsbottom. Far from being embarrassed by their presence, he had conversations with practically all of them.

There was a law passed in the early 60s, providing that Universities were prohibited from receiving black students unless applicants could prove that they wanted to study something that was not being taught by the newly-established black universities. Students became rather adept at choosing first year subjects that were not taught at these newly-established universities.

Through all of this, Nadine was on the fringe of things. But she nevertheless spent much time discussing what ought to be done in order that equality could be introduced.

Despite never having completed an undergraduate degree, by the time of her death, Nadine Gordimer had accumulated honorary degrees from Yale, Harvard, Columbia, the University of York, the University of Cambridge, University of Leuven in Belgium, and the University of Cape Town, amongst others. She received an honorary doctorate from this university hosting us this evening, the University of the Witwatersrand, in 1984.

Nadine Gordimer: The Writer

Gordimer’s first book was launched in a small bookshop in Pritchard Street. It was on sale for 9 shillings. I could not afford to purchase the book at the time, but I was present at the launch. And she was praised.

One of Nadine’s most important commitments in her life was to the creation of a common community of writers. From early in her career, she befriended the best black writers of the 1950s, most of them based in Sophiatown, writing for periodicals such as Drum. They included Nat Nakasa, Ezekiel Mphahlele, and Can Themba. She was the founder of COSAW – the Congress of South African Writers – a non-racial organisation of anti-apartheid writers.

Often, when these budding young writers found themselves in trouble with the apartheid laws, Nadine sent them to me for their legal defence. I worked on a pro-bono basis defending them. They were often charged with ridiculous things.

I remember one such referral in particular. A young poet had written a sonnet for his lover. In it, he’d said two things. The first ten or twelve lines were a recitation of the terrible things that apartheid had brought to his life. The last two lines – the end of the poem – were an expression of his love for his girlfriend. The poem was found in her home and the poet was arrested. The allegations were bizarre. The man was charged with a criminal offence under the Terrorism Act. The offence carried a 5 year prison sentence. Nadine Gordimer sent the case to me, requesting that I defend the poet in court. I did so, and managed to convince the magistrate that it could not possibly be a criminal offence for a poet to express love for his partner. He had not said anything destructive. The poem was simply an expression of his feelings. As wide as the Terrorism Act was, he surely could not punish a poet for expressing his love? The magistrate acquitted the man, with Nadine sitting at the back of the court room, watching the case.

Nadine’s work as a writer has led to our paths crossing in strange, unexpected ways. One ordinary day Nadine phoned me up. She said “George, I have a guest from the US. She is doing a film of one of Andre Brink’s books.” The book was “A Dry White Season”. The producer had wanted Marlon Brando to play the role of a well-known lawyer defending a young black man charged with a political offence. However Brando had refused to play the role – he had found the script flat, and decided the piece was not for him. The producer came to South Africa, looking for input on improving the part of the lawyer defending political cases, so that she might convince Brando to play the part. Nadine arranged for her to see me, to give input into how a political lawyer might behave. I spent some time answering her questions. Nadine gave much input because she had spent a great deal of time watching me argue in court. We described a specific account to the producer. A young man had made a confession and given evidence against his best friend. Members of his family had told me that the young man had been beaten by the police, and forced to give evidence. While asking the young man questions on the stand, I asked him to turn his back to the audience, and to lift his shirt. His back was covered in half-healed parallel welts. He admitted that the investigating officer had done this damage to his body, as an act of coercion.

This very scene found its way into the film adaptation of “A Dry White Season”. And Marlon Brando accepted the role of the lead lawyer.

Nadine Gordimer: The Activist

The relationship between her writing and her social responsibility was one of the central questions of Nadine’s life. Her involvement in the struggle against apartheid took a number of forms, some of which intertwine with my own story. She often attended political trials. She sat with the public at the back of the court house, watching proceedings unfold. She would discuss the cases with me during breaks. She was making notes, thinking of and remembering things she would later make use of in her written work.

She often assisted me, playing the role of behind-the-scenes editor of crucial pieces of writing and speech during the struggle against apartheid.

In 1963, the ANC leadership were arrested at their headquarters – Lilliesleaf Farm in Rivonia. Walter Sisulu, Govan Mbeki, Ahmed Kathrada, Raymond Mhlaba, Dennis Goldberg, Rusty Bernstein and Bob Hepple were taken into custody by police. Thus began the work of Bram Fisher, Vernon Berrange, Joel Joffe, with Arthur Chaskalson and myself on the defending the Rivonia trialists. In the lead up to the trial, the UN General Assembly had passed a resolution, by one hundred and six votes to one, demanding the abandonment of the Rivonia trial. We decided it was necessary to publicise the resolution both locally and internationally. Similarly, at the time of the trial, we decided it was necessary to promote the international campaign for the release of the detainees by providing personal detail to local and foreign journalists. We had each accused write up autobiographical notes about themselves, about their families, their political beliefs, and their underground work. Nadine Gordimer, by then an established authoress, reviewed and edited these autographical statements. She did a marvellous job. These statements were duplicated and distributed, in the hope that they would assist in dispelling negative perceptions about the accused that had been created by the apartheid-sympathetic press.

Later on in the trial, Nelson Mandela showed us, for the first time, the statement that he intended to make from the dock. His closing words stated that he was ready to die for what he had done. After some discussion between Nelson and the legal team, I proposed that Nelson change the final lines to state that he hoped to live and achieve his ideals, but if needs be was prepared to die. We agreed. Nelson then gave me permission to take a copy of his statement to Nadine Gordimer. At the time, Anthony Sampson, editor of Drum in the 1950s and good friend of Nadine’s, was staying with her. Sampson also knew Nelson well. I asked Sampson to review the statement. He withdrew to Nadine’s study. After an hour and half, he returned, having re-ordered the contents of the statement. He noted that, in order to have maximum impact, it was necessary to move many of the impactful paragraphs to the start, since busy journalists were likely to read the first few pages, and then skip straight to the end of the statement. We took his advice. Both Sampson and Gordimer were most impressed by the statement.

During the 1960s, Nadine Gordimer’s political consciousness was being fully explored in her fiction. She was particularly fascinated by the story of Bram (a shortening of “Abram”) Fischer. When he was brought to trial, she attended proceedings. She wrote two non- fiction pieces about Fischer, and her interest in him persisted and resulted in her seventh novel, Burger’s Daughter. This novel is an excellent example of how personal knowledge can be translated into fiction. The book’s jacket describes Burger’s Daughter as “a brilliantly realised work [in which] Nadine Gordimer unfolds the story of a young woman’s evolving identity in the turbulent political environment that has culminated in present-day South Africa. Her father’s death in prison leaves Rosa Burger alone to explore the intricacies of what it actually means to be Burger’s Daughter…. Nadine Gordimer’s subtle, fastidiously crafted prose sweeps this engrossing narrative to a triumphant conclusion”.

During the latter half of the Rivonia trial, it became clear that the security police had evidence the Bram Fischer was one of the senior leaders of the Communist party, and was actively involved in the underground movement. They did not arrest him at the time. However, on 23 September 1964, Bram Fisher was arrested and charged under the Suppression of Communism Act. I was one of Bram Fischer’s legal counsel in his trial. Following Nelson Mandela’s example in the Rivonia Trial, Fischer chose to make a statement from the dock. We worked on the statement very carefully and in great detail, and included a very important explanation as to why Bram was making a statement from the dock rather than from the witness box. As I had done with crucially important documents before, I asked Nadine Gordimer to review his statement, and she helped contribute to its final form.

My most difficult and unpleasant case was the Delmas trial. In total, the matter ran for more than four years, from August 1985 to November 1989 – we spent four hundred and twenty days in court (excluding time spent arguing appeals of the judgement). Twenty two men had been charged with treason, terrorism and furthering the objectives of unlawful organisations. Ultimately, and with bitter disappointment on our part, five of our clients were convicted. We then had the task of arguing in mitigation of their sentences. One of the people we asked to give evidence in mitigation was, upon my insistence, was Nadine Gordimer. She faced vigorous cross-examination about her political beliefs, but she did not waver. She did not apologise for being a supporter of the policies of the ANC and its armed wing, Umkhonto we Sizwe, as well as of the use of force. She supported economic and other sanctions. She was an active supporter of the United Democratic Front. This testimony showed her absolute fearlessness. On their way home that evening, her then husband, Rienhold Cassirer remarked that it was perhaps wise that she stay at a friend for the night, for fear that the security police would be looking to pick her up. She ignored this advice, and she was not picked up by the security police. It was already the 1980s, the writing was on the wall for the apartheid government, and they were likely concerned about the worldwide protests that would inevitably follow.

When the Nobel Peace Prize was awarded jointly to Nelson Mandela and FW de Klerk, and Nelson decided to accept the shared prize, both Nadine and I were invited to accompany him to Oslo for the award ceremony. Nelson’s daughter, Zenani, was also part of the delegation. Relations between the Mandela delegation and the de Klerk delegation were not at all times absolutely genial. When asked by journalist to comment on the award of the prize to both, Zenani said “my father deserved it”. Things got worse. Nelson had expected that in his acceptance speech, President de Klerk would acknowledge the evils of Apartheid. Instead he said that both sides had made mistakes, which infuriated Mandela. At the Prime Minister’s dinner that evening, Nelson made a scathing attack in response. Later, Pik Botha came up to me and said “please tell your president that from now on my President will speak last. He wants an opportunity to answer the things that your President has said”.

Through her life, Gordimer’s identity and politics were challenged, and shifted as a result. Clingman describes how she struggled with “alienation and belonging in the 1950s, her politicisation in the 1960s, the radical challenge to her identity from the Black Consciousness movement in the 1970s, and a process of reconstruction in the 1980s whereby a new set of inner definition comes to match vastly changed external circumstances”. But, he says, “underlying all Gordimer’s changes, the flexibility of a mind growing stronger and more radical as it [grew] older, [was] the firmness of conviction”.

In 1963, Gordimer initiated her long-standing campaign against censorship, opposing the Publications and Entertainments Act of 1963, which empowered the Publications Control Board to deal with films, plays, objects, magazines and books. In a non-fiction essay on the matter, she speaks angrily about the “principle of mutilation of books through censorship”. She wrote with incredulity of the 102 people who, in terms of the Publications and Entertainments Act, were forbidden from making any communication whatsoever with the public, either through speech or written word.

After the 1963 Act, came the Publications Act of 1974. It was in terms of the piece of legislation that her novel Burger’s Daughter was banned. In June 1979, the novel had been published in England. By the end of June it had been embargoed in South Africa. By 11 July it had been banned by the Censorship committee. After an internal appeal by the Director of Publications, the novel was “unbanned” or “reinstated”. In April 1980, Nadine Gordimer was awarded the CNA Prize (a top literary award) for Burger’s Daughter. Her acceptance speech made her feelings clear. She says, revealing her seething anger at the treatment of her novel, others like it, and the work of apartheid regime more generally:

Censorship is the weapon of information-control, thought-control, idea-control, above all, the control of healthy doubt and questioning, and as such as much a part of the arsenal of apartheid as the hippos [armoured cars] that went through the streets of Soweto in ’76 … Censorship is necessary for the daily maintenance of racism – and the laws of our country are still racist, whatever fancy names we give them; the very changes that are being made to ease the chafing of those laws around the necks of the masses still reflect racist differentiation in the assessment of people’s needs and self-respect, from the comparative amounts spent on black schools and white schools and pensions to the special arrangements that have to be made, on occasions such as this dinner, to have blacks as guests in a white club”.

And later in the speech, she says, with admirable fearlessness:

A cultural counter-establishment is on the move beyond the government’s control, no matter how many writers’ telephones they tap, how many manuscripts are taken away in police raids on black writers’ houses, no matter how many books they ban. The cage is empty. The keepers are beginning to notice; God knows what they will do next. But the writers are singing in the words of Pablo Neruda: This is the song of what is happening and of what will be”

She was not one for mincing words. She hated censorship because her writing was her struggle against racism and injustice. Even less than a year before her death, Gordimer railed against censorship. She wrote publically and critically about the Protection of State Information Bill.

Her old friend, Anthony Sampson wrote of her, just before his death in 2004 “Nadine Gordimer was small and neat, with a bird-like vivacity and intensity. She talked as precisely as she wrote, telling stories dramatically, with acute observation and curiosity. But her sharp intelligence concealed a warmth and involvement that enriched her friends and gave her writing a deep compassion”.

My friendship with Nadine and her husband and children lasted a long time. After the release of Nelson Mandela, Nadine and I visited Nelson together from time to time. We both had things to discuss with Nelson about the future. Later, we visited one another, both at her home and at mine. She and her husband owned a farm, where we would spend Sundays together occasionally.

Nadine Gordimer was concerned about the acknowledgement of the humanity of people, irrespective of whether they were black, white, Jews, Greeks, or any other race, religion or grouping. This was a philosophy that both she and I understood and lived by. We shared this. In her novels, she almost invariably dealt with love affairs crossing colour lines. She wanted her readers to understand the normalcy of this love. This kind of statement was part of her protest against oppression.

The equally legendary South African writer, JM Coetzee said of her:

As a writer and as a human being, Nadine Gordimer responded with exemplary courage and creative energy to the great challenge of her times, the system of apartheid unjustly and heartlessly imposed on the South African people

Gillian Slovo, herself a well-known writer, and daughter of the late Joe Slovo and Ruth First said:

Politics, both large and small-scale, was Nadine’s subject. Speaking the truth was her passion. She wrote about injustices not only in the bad old days, but in the new. She was a model of what an engaged writer can achieve, and that’s what makes her my hero”

 She was a remarkable, courageous role model, and I am honoured to have met, worked with, and befriended Nadine Gordimer.

 Recently there has been a small group of commentators, saying that nothing has changed since the Apartheid years. I was at a graduation ceremony a few months ago. The majority of the graduates were black and the majority of that majority were women. I would like to turn to you Mr Vice Chancellor and ask you, when you hear someone saying that nothing in South Africa has changed, please invite them to the next graduation.

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LRC submissions to 60th Ordinary Session of the African Commission

The Legal Resources Centre (LRC) attended the 60th Ordinary Session of the African Commission on Human and Peoples’ Rights (African Commission), held from 8 May 2017 in Niger, as well as the NGO Forum that took place over the preceding weekend.

During the NGO Forum, the LRC and the Kenya Human Rights Commission, on behalf of the International Network of Civil Liberties Organizations (INCLO), hosted a panel on “Surveillance as a threat to privacy rights and doorstep to further violations: A discussion on Africa’s unfolding experiences”. The purpose of the panel was to raise awareness of the case studies and recommendations contained in the report prepared by INCLO members titled “Surveillance and democracy: Chilling tales from around the world”.  A copy of the INCLO report is accessible here (PDF).

While surveillance has a clear and direct impact on the right to privacy, it is well-established that such violations of the right to privacy also impact the enjoyment of other rights, including the rights to freedom of expression, association and assembly, and hinder the work being done by civil society organisations and the media.  Surveillance is therefore a matter of importance that affects all organisations, regardless of the specific focus area of work.

The LRC also delivered a statement (see below) to the African Commission, focusing on specific issues raised by the African Commission in its concluding observations and recommendations following the 2016 review of South Africa’s second periodic report under the African Charter on Human and Peoples’ Rights (African Charter). The concluding observations and recommendations were adopted by the African Commission in June 2016, and a copy is accessible Concluding Observations and Recommendations (PDF).

Building on these concluding observations and recommendations, our statement to the African Commission during the current session dealt with the following three key issues: (i) information rights, in particular the rights to freedom of expression and privacy; (ii) the extractives industry and the environment, as well as corporate accountability more broadly; and (iii) the need for effective remedies for victims of torture.

The South African government also delivered a statement to the African Commission, in which the following issues were highlighted: (i) the right to education; (ii) the plight of women; and (iii) the challenge of migration and the attacks against foreign nationals.

During this statement, Ambassador Ntshinga, delivering the statement, stated that “[h]uman rights remains embedded in our foreign policy”, and that South Africa will “continue to work towards the entrenchment of democracy and the respect for human rights on the African continent through continental and regional bodies”.  Regarding the violent attacks against foreign nationals, Ambassador Ntshinga stated to the African Commission that “[w]e condemn the violence in the strongest possible terms and sincerely apologise to those who were affected”. A copy of the South African Government statement 60th session African Commission is accessible.

Lastly, this session marked the launch of two important legal documents by the African Commission, both of which are important contributions to the work being done on these issues in both regional and domestic contexts:

For more information about the work of the African Commission, visit www.achpr.org.  The next session of the African Commission, scheduled to be held in October/November this year in The Gambia, will celebrate the 30th anniversary of the African Commission coming into existence.

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STATEMENT OF THE LEGAL RESOURCES CENTRE

AT THE 60TH ORDINARY SESSION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS, HELD IN NIGER

9 MAY 2017 | OBSERVER STATUS NUMBER 376

Honourable Chair, Honourable Commissioners, state representatives, national human rights institutions and fellow NGOs:

Last year, South Africa came before the African Commission on Human and Peoples’ Rights (African Commission) for its review of compliance with its obligations in terms of the African Charter on Human and Peoples’ Rights.  The Legal Resources Centre (LRC) urges the South African government to pay due regard to the concluding observations adopted by the African Commission at its 20th Extraordinary Session during June 2016, to recognise their binding nature and to take concrete steps to implement these recommendations.  In this statement, we wish to highlight three broad areas that arose within these concluding observations: (i) freedom of expression; (ii) the extractives industry and the environment, as well as corporate accountability more broadly; and (iii) the need for effective remedies for victims of torture.

As a point of departure, we recall that one of the concluding observations was to expedite the establishment of the Information Regulator in terms of the Protection of Personal Information Act, 2013.  We note that, since the publication of the concluding observations, the five members of the Information Regulator have now been appointed, and in this regard we wish to extend our sincere congratulations to the Honourable Chairperson, Advocate Tlakula, on her appointment as the head of the Information Regulator in South Africa.  We urge the South African government to provide the Office of the Information Regulator with all necessary support and resources to ensure that it is able to fully establish and operate without delay, and to ensure that it enjoys complete structural and functional independence to be able to undertake its mandate effectively.

Notwithstanding this development, we remain deeply concerned about ongoing surveillance in the country.  There are a number of documented allegations of members of civil society and the media have been placed under surveillance.  This is not only a violation of the right to privacy, but also directly affects the right to freedom of expression, the right to freedom of assembly and the right to freedom of association.  As a matter of first-hand experience, the LRC received a ruling from the Investigatory Powers Tribunal in the United Kingdom in 2015, revealing that an email address associated with the LRC had been subject to unlawful surveillance by the British Government Communications Headquarters.  Surveillance activities such as this will undoubtedly hinder the work of members of civil society and the media, and should be strongly condemned.  We further urge the South African government to fulfil its undertaking to reform the current surveillance framework to ensure that it is constitutionally-compliant.

We are further concerned by the proliferation of draft laws that, if passed into law, would likely have a deeply harmful impact on the right to freedom of expression.  We note, in this regard, the concerns expressed by the African Commission in its concluding observations regarding the Protection of State Information Bill and the Cybercrimes and Cybersecurity Bill, noting in particular the provision permitting journalists and members of the public to be prosecuted for possessing or disclosing state information.  We echo the call made by the African Commission in its concluding observations for the Protection of State Information Bill and the Cybercrimes and Cybersecurity Bill to be brought in line with regional and international standards and best practices.  In a similar vein, as noted by the African Commission in its concluding observations, we remind the government of its undertakings to decriminalise the common law crime of defamation, and urge the government to take steps in fulfilment of these undertakings.

We also take this opportunity to commend the 2017 Joint Declaration by Special Rapporteurs on Fake News, which was a well-timed and important contribution to the discourse, and was of significant value for civil society organisations in seeking to curb efforts by governments to use the so-called fake news rhetoric to unduly restrict the right to freedom of expression.  Across the continent, we see governments clamping down on the right to freedom of expression – particularly freedom of expression online – which affects all members of the public.  We urge the African Commission to continue its important work focusing on freedom of expression online specifically, including the impact that digital surveillance has on the enjoyment of this right.

With regard to the extractives industry and the environment, we note that mining and resource governance remains of serious concern to the LRC and the communities that we assist.  We remind the South African government of the African Commission’s 2012 resolution that emphasised “the disproportionate impact of human rights abuses upon the rural communities in Africa that continue to struggle to assert their customary rights of access and control of various resources”.  We urge the South African government to act with haste in considering and implementing the detailed recommendations contained in the African Commission’s concluding observations in relation to the extractives industry and the environment.

In particular, as we still wait for justice for those Lonmin mineworkers who were tragically killed at the Marikana massacre in 2012, we note the call from the African Commission for the South African government to report on the steps taken to implement the recommendations of the Marikana Commission of Inquiry and to address the underlying factors that precipitated the massacre.  Scant information is known about the efforts being undertaken to fulfil the recommendations of the Marikana Commission of Inquiry, and we urge the South African government to report comprehensively about the investigations undertaken and the consequences thereof.

This raises a broader question of corporate accountability.  In this regard, we note the ongoing work of the Inter-Governmental Working Group of the United Nations to develop a binding treaty for transnational corporations for violations of human rights.  The resolution establishing this working group was co-sponsored by South Africa, and provides an important opportunity for local communities to participate in their own development by ensuring community participation in the drafting of the treaty.  Given the direct impact that this has on Africa, it is imperative that African organisations play an active role in this process, and urge all organisations present to make sure that your voices are heard in this process.

The third issue relates to the lack of measures to provide reparations for victims of torture, which the African Commission urged the South African government to take measures to provide for.  The LRC currently represents a number of persons who allege having been tortured whilst incarcerated at the Mangaung Correctional Centre, a private prison operated by G4S Correction Services.  Our clients allege having suffered an array of violations, including having been electro-shocked, assaulted, forcibly injected and held in solitary confinement for extensive periods of time.  In our pleadings, we contend on behalf of our clients inter alia that this is a violation of their fundamental rights to human dignity, life, freedom and security of the person and of every detained person to conditions of detention consistent with human dignity.  It is self-evidently of significant importance to ensure that victims of acts of torture are able to access appropriate remedies for the violations that they have suffered.  In this regard, we welcome the adoption of the General Comment No. 4 on the Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment, and commend all those involved, as General Comment No. 4 provides uniquely useful guidance on this matter.

Moreover, the LRC and our partner organisations in the International Network of Civil Liberties Organizations (INCLO) welcome the adoption and publication of the Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa.  The LRC notes in particular the forward-looking nature of the Guidelines, and commends the African Commission, the African Policing Civilian Oversight Forum and the Danish Institute for Human Rights for the various participatory processes which led to the finalisation of these Guidelines.  Particularly, we welcome the progressive guidance given to law enforcement officials on the use of force and firearms, including the proper use of less-lethal weapons.

Finally, as a general note, we call on the African Commission to urge the South African government to respect the rule of law, and to respect both the authority and the independence of those institutions mandated to protect the rule of law in South Africa.  The ability of such institutions to function independently is critical to the maintenance of democracy and rule of law in South Africa, and must be fiercely guarded.

[Ends]

 

 

 

Acceptance of the University Gold Medal

On acceptance of the University Gold Award for the Legal Resources Centre, presented by the University of the Witwatersrand, 23 March 2017

  • Speech by Janet Love, National Director

On behalf of the Legal Resources Centre, I would like to convey our appreciation to the Council of Wits University for the honour and distinction bestowed upon us through this Award.

Wits is the alma mater not only of Arthur Chaskalson and Felicia Kentridge – two of the founders of the LRC – but also of many others who have made the organisation what it is today – including stalwarts of our struggle like George Bizos, the LRC’s internal Senior Counsel, and Thandi Orleyn, the Chairperson of our Board of Trustees, who are here with us tonight. Wits is also the trusted custodian of some of the LRC’s archives and papers. In addition, our work has been enhanced through the partnerships and working relations we have forged with many components of the University including the Centre for Applied Legal Studies, the Wits Law Clinic, the former Wages Commission with its links to the Industrial Aid Society which served as one of the first Advice Offices supported by the LRC, the Sociology of Work Programme (SWOP), the Joburg Centre for Software Engineering (JCSE) and the Students for Law and Social Justice – to name just a few. So this Award and the recognition it embodies has special significance for us.

Thank you also for affording me this opportunity to make a few remarks at this graduation ceremony. Firstly, congratulations to the students! Whatever your individual or collective views are, or whatever the extent of your activism while on campus: you will look back at this period and know that you were part of the turbulence – a turbulence that may develop into the winds of change. Engagements with and within the #FeesMustFall movement have seen the emergence of the so-called ‘flat-line’ leadership structures rather than the channelling of discussion through traditional structures that were used when I was a student. In this different ‘flat-line’ formation may lie the seeds of much innovation in terms of engagement and organisation, and some of this may be enabled by innovations in the social media space.

However, currently there are multiple processes (the Fees Commission, the Higher Education Ministerial Task Team, the Mandela Foundation’s Higher Education National Convention) and I wonder how much students have been able to engage thus far amongst themselves about these issues or within all or any of these processes. The linkages from one campus to the next seem tenuous at best. These are the challenges of organisation: so although current organisation may be innovative and responsive to the current mood, it may simultaneously make the development of alternatives and finding the pathways forward additionally difficult. Discussions around decolonisation and critical race theory which also do not, in themselves, resolve the debate about free education for all versus free education for the poor and the related discussion about what thresholds or mechanisms could or should be used to determine poverty. And there are many other critical issues affecting students ranging from access to bandwidth and data to student living conditions.

Much as I believe that the values of our Constitution are a guide to action and include a clear imperative for fundamental transformation of our society, exactly what this transformation actually looks like – and how we get there – are issues that require organisation and leadership at all levels and in all spaces. It is our individual and our collective responsibility. There is no script. There is no single answer. There is no one path to bring about the Constitutional promise and to ensure that inequality is not exacerbated by the options we choose. This is as true for the right to water as it is for the right to education.

The travesty against justice that was colonialism and the crime against humanity that was apartheid are with us today in many ways. We can point to change and progress but this cannot disguise our failures. For example, we have failed to effect the land restitution and land reform programme. We cannot deny that we have failed to hold accountable those who treated the Truth and Reconciliation Commission with disdain – they have not been brought to justice and reparations have not been made. Inequality has grown and exclusion is something that is not openly, actively and constantly reckoned with as it needs to be.

The LRC seeks to advance inclusion and equality; to secure dignity and development for all; and to enable our democracy: through using the law to make our Constitutional framework deliver on its promise to all in South Africa. To this end, we provide free legal services for vulnerable people including: those who suffer discrimination by reason of race, class, gender, disability or through historical, social and economic circumstances; and those who stand up against abuse of power and corruption. To these ends, we use a range of strategies to bring about creative and effective solutions. The law and our use of it, is only one part of the picture. What we do cannot happen without the organisation of and the leadership and mobilisation by the clients we represent. And we too need to do more to transform. This includes the demographics within our own organisation and making more consistent progress towards transforming the legal sector including ensuring that there is a greater consciousness with regard to who from the members of the Bar are briefed in our matters. And it also involves being more creative about the way we engage in the broader public space.

The rule of law cannot exist in a media bubble; it needs the argument surrounding a case to be built in the public mind; it needs the solutions to be sought and articulated; it needs a dominant narrative to be developed in order to make the processes of the law and objectives of any particular case to be clearly understood and to have a real prospect of being meaningful in improving the day to day lives of ordinary people. The law needs to secure this influence to enable it to be a real check and balance on those with political and economic power. Yet, who dominates the narrative? Is there adequate transparency and information? Is there conscious effort to engage, persuade and convince? These issues and questions are as relevant to each and every one of our cases as they are to the debates around higher education.

We need to be conscious of the fact that all institutions are fragile. While we see political parties – and particularly those in power – cannibalise their own support, we watch as some seek to unravel the social compact we achieved at the dawn of our democracy without laying any ground for alternative ways to take forward people’s aspirations.

As there is repeated failure to hold those in authority accountable, we know that this is compounded by corruption, the manipulation of public institutions and the hollowing out of critical areas of governance. And in this way, the peoples’ trust in institutions – all institutions – begins to break down. And once broken, this trust is difficult to restore – regardless of who is in office.

We are not unique. There is a loss of credibility the world over in the ability of the State to deliver. This has led to the politics of negation, disruption and often to fragmentation. It is an unknown that stands before us as we let institutions break down without visualising what comes instead and this makes it both scary and dangerous: scary because building is a more painstaking process than destruction; and dangerous because into a vacuum can come the rhetorical noise of an empty drum which promises all but does not offer alternatives or deliver anything.

It is into this vortex that those who have just completed your studies are stepping. Impatience is not enough. Leadership, facts and figuring out how something can be achieved – these are vital.

“Facts matter,” said the former US Vice-President, Joe Biden. Yet without taking hold of the narrative and without doing more than confining our engagement to 144-character twittering exchanges, facts will continue to elude us and the public consciousness.

How do we locate the law in the context of fact? This is important for our work and for ensuring that the promise of our democracy is realised. For example, the Constitution is unambiguous about the need for land reform and land restitution and explicitly provides for the option of expropriation. The Constitution takes the view that any consideration of compensation – it does not say that compensation is a requirement – must reflect “an equitable balance between the public interest and the interests of [all] those affected” – including those who had their land forcibly removed and those who have occupied it in the period since. It requires all relevant circumstances to be taken into account, including the history of the acquisition, the use of the property over time and the extent of direct state investment and subsidy.

So what has gone wrong? Why has there been so little progress? Why has this, ‘the Property Clause’, been used to enrich a few at the expense of many? Why has it excluded rather than included? We should all ask. But there is simply no factual basis for blaming the Constitution and the wording of the clause itself. By doing so, we miss the point. We allow the real reasons that relate to the failures in implementation and often to corruption to be obscured thereby delaying the urgently needed correction.

The Constitutional structures and principles are there to serve people, and in particular poor people. We need to remember that the judiciary, too, is a fragile institution and cannot and should not bear the burden of failures of other organs of State; nor should it have to grapple with the failures of those who approach the Court without having given adequate thought to the practical challenges of implementation; to the challenges of oversight; to challenges that accompany the processes for enforcement – all these need to be crafted as options to be addressed as part of proposed remedy. Not just in Court but in our society and in debates and matters beyond.

Judicial independence needs independent lawyers who recognise that the legal profession is under an obligation to serve the public interest. Lawyers and all graduates and professionals cannot serve only the elite in our society and services have to be available to all who need them. This is part of what needs to become embedded in all of our missions and imaginings.

We have a Constitution which limits the power of the State from interfering with the rights of the individual and which also addresses the regulation of private power. In this, we really lead in the world. It is a Constitution which expressly empowers the state to address and redress the consequences of centuries of dispossession and discrimination. It requires inclusion. It is a Constitution which provides the basis and the imperative to make this our individual and collective responsibility. So let us get on with it – let us all move ahead with the business of using our Constitution to the fullest extent possible in everything we do.

Thank you.

Arthur Chaskalson fellowship launched

In a recent low-key event, the Legal Resources Centre launched the prestigious Arthur Chaskalson Pupillage Fellowship which will provide financial support and training to one or more young candidates, coming from historically disadvantaged backgrounds, who have been admitted for pupillage.

The LRC’s counsel or associates will provide the requisite training for one year, after which the pupil will take up a position as junior counsel in the LRC’s Constitutional Litigation Unit, subject to the availability of a position and funds, for a period of at least two years.

The Fellowship honours the late Arthur Chaskalson, who was one of the founding members of the LRC and later became the first Chief Justice of the Constitutional Court.

During the event, friends and family of the late Chief Justice, as well as LRC staff and supporters, were introduced to the first two fellows, Phumzile Mdakane and Yanela Ntloko. Phumzile will be based in the Cape Town office under Adv. Michael Bishop. Yanela will be in Johannesburg under the Constitutional Litigation Unit and CLU associate, Advo. Tembeka Ngcukaitobi.

janet-love-and-yanela-ntloko
Legal Resources Centre Director, Janet Love, with one of the first Arthur Chaskalson fellows, Yanela Ntloko

LRC Director, Janet Love, gave a warm welcome to the new fellows and gave a brief history of their respective (academic and personal?) backgrounds. Advocate Lunga Siyo, on behalf of the CLU, also welcomed the fellows, offering the support of the organisation as a whole.

Craig Watt-Pringle from the General Council of the Bar spoke of the progress and challenges related to transformation in the advocates profession. While the Bar is seeing an increase in black and female membership, challenges remain.

The high number of white men as senior counsel, and skewed briefing patterns for commercial matters, indicate that more needs to be done to enable transformation at the Bar.*

“Clearly the Bar cannot afford to simply wait for briefing patterns and the composition of the bar to change through the effluxion of time.”

Advocate Watt-Pringle also quoted the late Chief Justice’s own feelings on and commitment to transformation.

Matthew Chaskalson, the son of the late Chief Justice, gave a very moving speech where he indicated that his father would have been proud to support a project between two of the three most important places for him – the LRC and the Bar (the Constitutional Court being the third). He noted that it was the fourth anniversary of his father’s passing. He wished the fellows all the best and also offered his support to them, should they need it.

janet-love-and-phumzile-mdakane
Janet Love with Phumzile Mdakane, the second fellow

Those attending the event were then invited to a screening of Shepherds and Butchers, a 2016 South African drama directed by Oliver Schmitz and produced by Anant Singh. The film is based on a book by Chris Marnewick, which is in turn based on real events that took place in 1980s South Africa during the time when the country still had the death penalty.

The LRC would like to thank everyone who attended the launch, the Chaskalson family, LRC supporters, as well as Anant Singh and Sterkinekor.

_________________________________________________________________

*Remarks by Advocate Watt-Pringle

1. Good evening ladies and gentlemen. Thank you Janet Love and the LRC for this invitation and congratulations on the launch of the Arthur Chaskalson Pupillage Fellowship Programme; a worthwhile initiative.

2. Unfortunately, the GCB chairman, Vuyani Ngalwana SC is unable to attend and he has requested me to do so in his stead.

3. My topic is transformation of the legal profession in general and the bar in particular.

4. This is an enormous topic and so I will not begin to do justice to it in the time allowed. I will focus on placing some of the current challenges in historical perspective and then deal briefly with current transformation initiatives.

5. As a member of the bar who only spent one year as an articled clerk in the mid-80s, I’m really not qualified to speak about transformation in the attorneys’ profession and so forgive me if I alter my brief slightly by confining my remarks to transformation at the bar, with particular reference to the Johannesburg Bar.

6.  I hope to add interest to this challenging topic by reference to some statistics. These statistics also provide some insight into the nature and extent of the overwhelming need for transformation.

7. The Johannesburg bar is – by some distance – the largest bar and currently comprises 1096 members, more than one third of the total GCB membership of 2826. The next biggest bar is Pretoria with 652, Cape Town with 478 and KwaZulu Natal with 311. The other bars make up the balance and are very small by comparison.

8. The increasingly urgent demand and need for transformation must be understood in historical perspective.

9. In his foreword to the book published in 2002 by the Johannesburg bar to celebrate its hundred years of existence, the late Chief Justice Arthur Chaskalson wrote the following:

With few exceptions, for they were few exceptions, the story of the people of the Johannesburg bar for most of the past 100 years is a story of white advocates; for the same reason it is also, with few exceptions, the story of white men – a group of highly skilled professionals including many great advocates who had an important influence on the way law is practiced in South Africa and the high professional standards to which the bar aspires. They were, as we all are, people of their times, influenced by the social and political order in which they lived.

Some of the stories, though shameful, should therefore come as no surprise. The internal quarrels of the admission of black advocates, the initial exclusion from the common room of those black advocates who are admitted as members, the striking off of Bram Fischer and, in general, the passive acceptance by most of the members of the bar of the way our society was structured and privilege dispensed, are part of the history of, and reflect the attitudes common within, the institutions of the legal profession in colonial times and underreported.

10. Elsewhere in the book it is recorded that in 1983 only five of the 278 members of the Johannesburg bar were members of colour. They comprised less than 2% of the bar.

11. Nearly two decades later, in 2002, that figure had risen to 148 out of 604, which is 24.5%. In the same period the percentage of woman doubled from 6% to 15%, whereas the increase in the membership of members of colour had increased 13.6 times.

12. Since then, the picture has altered markedly. In Johannesburg, of the 1096 members less than half are white males. As an indication of the rapidly changing demographic of the bar, of the 259 members of less than five years seniority, only 65 are white men. That tells us that by effluxion of time the bar will, at least as far as its demographic composition is concerned, transform across the board.

13. Women too have become far more prominent at the bar than they were in 2002. In Johannesburg there are now 334 women out of the total of 1096, just less than one third. More than a third of all members under 5 years’ seniority are women; that is 94 out of 259.

14. Perhaps more startling, however, are the statistics relating to senior counsel, which are largely attributable to the virtual exclusion of black and women members until relatively recently.

15. Of a total of 198 silks at the Johannesburg bar, 149 or approximately 75% are white and male. Only 63 are black and 30 are woman. So black silks comprise approximately 30% and women approximately 15% of silks in Johannesburg.

16. This tells us that while the overall demographic of the Johannesburg bar is increasingly black and female, that statistic is largely accounted for by the relatively recent influx of black and female juniors to the bar.

17. At the national level approximately half of the bar is white and male and white males make up 414 of 527 silks, a figure in excess of 80%. However, less than a third of all members of the bar under five years’ seniority are white men.

18. So much for statistics.

19. The author of the book which has been turned into the movie which we will see this evening is Chris Marnewick SC. More than a decade ago he compiled a detailed training manual for pupils and he was to a significant degree responsible for the vast improvement in the quality and extent of training received by pupils, when pupillage was increased from less than six months to the current 12 month programme. Effective training is, of course, an essential component of transformation.

20. White men now deliberately form a small percentage of the yearly pupillage intake at the Johannesburg Bar, but this may not be the case nationally, to the same extent.

21. A more selective approach to admission to pupillage and the one year pupillage program have resulted in a much lower failure rate and a very low attrition rate amongst junior entrants to the bar. That is the reason why black and woman entrants to the bar have so radically impacted on the overall demographic from what it was 20 or 30 years ago.

22. However, the fact that so many silks and senior juniors of experience are white and male, particularly in commercial matters, accounts for briefing patterns which tend to exclude black and women advocates from the bigger commercial matters.

23. Senior attorneys, who themselves are usually white men, and who deal with commercial matters of substance have grown up in the profession with their white male counterparts at the bar. That is amongst the reasons given why briefing patterns are so difficult to change.

24. From the bar’s perspective, the emphasis is on training, including advocacy training which continues after the pupillage program, mentorship within the group structure and the inclusion of junior black and women members in matters with seniors, with the aim of providing them with the necessary experience and exposure to briefing attorneys, so that they can show what they’re capable of and hopefully be briefed alone in the future.

25. Many of the bar’s transformation initiatives are conducted at a group or Chambers level where, for example, there is cross subsidisation of overhead costs incurred by junior members regardless of race or gender and junior funds to which senior members contribute and which can be used to involve junior members in matters at no cost to the client, again with the intention of giving them experience and exposure.

26. Turning to the governance of the bar, the GCB has been in a 50-50 partnership with Advocates for Transformation, AFT. Although AFT is a non-racial organisation, it is generally acknowledged as the body which represents the interests and aspirations of previously disadvantaged members of the bar.

27. This means that 50% of the GCB’s Exco comprises nominees of AFT and the chairmanship of the GCB alternates between an AFT and a non-AFT member every two years.

28. Thus transformation of the legal profession is currently a combination of:

28.1 evolutionary change as more and more black and women law graduates enter the legal profession –  to some extent engineered through the pupillage intake; and

28.2 more proactive measures which have, to be frank, enjoyed limited success.

29. Clearly the Bar cannot afford to simply wait for briefing patterns and the composition of the bar to change through the effluxion of time.

30. There does, however, appear to be new impetus on the part of government to look at briefing patterns by state departments and state owned enterprises. And from time to time, various law firms have initiatives to brief greater numbers of women and black members.

31. An issue like transformation can best be tackled when the nature and extent of the problem, or challenge, is well understood. The Judge President of North and South Gauteng High Court is gathering statistics on briefing patterns in the High Court. This is a very welcome initiative.

32. I thank you.

CE WATT-PRINGLE SC

Johannesburg

1 December 2016