Lawyering whilst Black

(featured photo of Lunga Siyo, LRC, and Mandisa Shandu, Ndifuna Ukwazi)

I am black-African, young and female, and working in the public interest sector. This is what it means to me:

It means that some of us are first generation graduates; we work with the added pressure of making money in order to financially support our families.

It means that sometimes we do not earn enough to sustain ourselves and our families and so many young, black-African lawyers end up leaving the public interest sector for jobs that they do not necessarily love, but that will make sure that they fulfil their obligations each month.

It means that we work in a sector that is not transformed enough: we see black-African lawyers within our organisations but they are not occupying senior positions.

It means that there has to be policies put in place, such as briefing policies, in order to hold organisations “accountable” for who they brief, or their failure to brief black counsel.

It means forming institutions such as the Black Workers Forum to “police” organisations when it comes to transformation….. 33 years after Democracy.

It means that there is a belief that young black lawyers are incapable of competently handling complicated matters or matters seen as falling within specialised areas of law.

It means that other black-African lawyers are afraid of putting their jobs on the line by briefing other black-African counsel because black-African counsel are “inexperienced and can’t take on matters probono”.

And on the burden of being both black-African and female: it means that your male counterparts are taken more seriously than you and that some clients will be more comfortable with their matters being handled by your male colleague.

But let us not forget the beauty of being a black-African lawyer:

As public interest organisations, the majority of our clients are black-Africans. This means that the majority of the work that we do is for our own people and for the betterment of our own people.

We are multi-lingual; we are able to communicate with our clients in a language that is their own. We understand the cultures and traditions of our clients.

We are a point of reference for clients. I have lost count of how many times I have been at court – going about my duties as a Candidate Attorney – and have been approached by members of the public, querying how to find a particular section of the court or how to fill in a domestic violence form. Our black skin means that we will understand better.

As a black-African child, we are taught that every elder is your mother/father or grandparent. For me this has meant that at every workshop or community consultations, I run to the aid of elderly people, making sure that they can get around with ease. My work as a black lawyer comes with a personal touch.

Lawyering whilst black…means that we have challenges; but we do our work anyway and we can understand the plight of our clients in a way that connects us to them.

Sindisiwe Mfeka – 2017 Bertha Fellow

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Fellows here: http://berthafoundation.org/ 

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Bertha Convening: A Synergy for Change

Transfixed in my seat, feeling the energy of a collective striving for change and human rights – this is how I felt at the 2017 Bertha Convening, where I sat amongst peers championing for human rights.

In reflection, the Convening truly provided a rare opportunity for legal peers and community representatives from different platforms around the country to come together, shed light on, and interrogate current and deeply entrenched issues plaguing the vulnerable and marginalised in our country.  Some of the issues that were raised were of violence against transgender persons, and of mining companies overriding the consent of rural communities by mining on their land. We listened to the plight of farm workers who continue to live on farms where they experience oppression not dissimilar to the Apartheid regime.

Bertha convening 2017

Community representatives reminded us young lawyers that we do not need to be lawyers to fight against injustice, as the very essence of a human rights violation is that it encroaches upon one’s humanity. However, they also reminded us of the importance of our role as lawyers in hacking at the chains that still bind so many to oppression of some form. Further, how valuable it is for lawyers and communities to partner if we want to create the change we envision.

Bertha convening 2017_Marikana

The law remains a fundamental tool to challenge the status quo, and help realise the promises made in the Constitution. Lawyers cannot do this without truly getting the perspective of the communities we represent, and whose lives ultimately will be improved by the cases we pursue. The Convening created a supportive space to nurture such a collaboration, and to gain from and learn the different perspectives on these challenging issues.

I will end off by saying that this was my first Bertha Convening and I cannot wait for the next one.

Naushina Rahim – 2017 Bertha Fellow

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Fellows here: http://berthafoundation.org/ 

Bertha convening 2017_Group

LRC submissions: #BindingTreaty at IGWG 2017

STOP THE PLUNDER: AFRICA IS NOT FOR SALE

The Legal Resources Centre, as part of the Global Campaign to Dismantle Corporate Power and, separately, the Treaty Alliance, was in Geneva during the final week of October 2017 for the third session of the open-ended intergovernmental working group (IGWG) on the elaboration of a binding treaty on transnational corporations and other business enterprises with respect to human rights.

The Global Campaign and Treaty Alliance are working collectively to advocate for a strong Binding Treaty to Stop Corporate Abuse and to prevent and remedy human rights abuses by transnational corporations and other companies.

The Binding Treaty process has been going on for many years. This was the crucial third session of the Inter-Governmental Working Group, where the draft elements of the Treaty were submitted by Ecuador, as the chair, for discussion. The submissions made during this session are on those elements.

The EU and others tried to force an end to this process by arguing that the resolution that constituted the Working Group provided for 3 sessions only and a new resolution must be sought to continue the work. The Treaty Alliance and allies worked hard on lobbying against this backlash and supporting South Africa, who is pushing for the process to continue. The outcome of the meeting, after tense negotiations on Friday last week, was that the chair must informally consult on how to take the process forward.

The Alliance and allies are pushing for a draft zero of the Binding Treaty to be presented and discussed at the 4th IGWG meeting at the end of next year.

The LRC made the following submissions during the sessions: 

Oral Submission – Subject 1: General framework

Thank you Chairperson and congratulations on your appointment. My name is Lucien Limacher. I am from the Legal Resources Centre from the Johannesburg office in South Africa.

I am viewing the draft elements document from a viewpoint of respecting, protecting and promoting the core environmental and sustainability principles widely accepted and fundamental to the survival and development of vulnerable communities who face, often unwanted, development projects imposed by TNCs, OBEs and states.

At Preamble: In terms of the preamble, there are two core international environmental laws or policies that are currently not mentioned within the draft elements document, which play a critical role on the impact TNCs and OBEs have on human right violations. The first pertains to the lack of reference to the various international treaties on climate change; we cannot ignore the anthropocentric impact of TNCs and OBEs have on climate change and of course then on human rights. The second international environmental issue relates to the failure to acknowledge the Development Sustainable Goals that were agreed upon in terms of the 2030 Agenda for Sustainable Development read with the Rio Declaration and the Johannesburg Declaration on Sustainable Development. It is critical that TNCs and OBEs follow a sustainable development pattern that does not impact the livelihood of communities. As such the treaty should reflect in the preamble the above two aspects.

At Principles: Taking the above context into consideration, the same problem can be expanded on under the principles section wherein the draft elements document failed to take cognisance of the following critical environmental principles that impact the human rights discourse:

  • The first principle that must be included is the Cradle-to-Grave principle;
  • The second principle that must be included is Prior Environmental Impact Assessment Principle (this must go along with the human rights impact assessment mention in the draft element document);
  • The third principle that must be included is the Public Trust Principle;
  • The fourth principle that must be included is the Polluter Pays Principle; and
  • Lastly, the fifth principle that must be included is the Sustainable Use and Equity Principle.

Lastly, at Purpose: Within this section, it was mention that adequate remediation is to be used as an effective remedying tool. It is this submission that remediation must include rehabilitation of the environment if the environment has been degraded by an activity of a TNC or an OBE.

Thank you.

Oral Submission – Subject 2: Scope of Application

Thank you Mr Chairperson Rapporteur

The Legal Resources Centre is a public interest law firm based in South Africa. We represent individuals and communities in protecting their rights against the impact of often unwanted and imposed development projects in the extractives and other sectors.

We endorse the principle of the primary responsibility of States to protect and promote the human rights of its citizens against all transnational corporations and other businesses enterprises who abuse these. We cannot afford another narrow instrument that creates yet more loopholes for impunity to thrive. But we also cannot pretend that States do not operate in the context of the corporate capture of their law and policy making processes and its implementation. This is pervasive on the African continent, a continent regarded as the new frontier for extractivism and large scale agri-business.

While we strongly endorse explicit measures to be included in the treaty to guard against corporate capture suggested by colleagues earlier, we fear that these may not be sufficient to break the stronghold of corporate capture over the States mandated to protect and promote the human rights of their citizens. In order to make meaningful progress, this process must acknowledge the importance of placing relative power in the hands of the peoples, communities and individuals whose rights are affected by the actions of TNCs and OBEs.

They must be central to the decision-making processes that authorize projects and their implementation. The inclusion in decision-making of affected individuals provides a further safeguard against corporate capture. The principle of Free, Prior and Informed Consent, already entrenched in international law and increasingly recognized as imperative to the success of international voluntary standards, must be included in the treaty as a step towards not only providing remedies to human rights abuses, but indeed preventing those abuses from occurring. There is growing consensus in this room that prevention of abuse is indeed what we are collectively pursuing.

FPIC creates a meaningful seat at the table for those directly affected by the actions of TNCs and OBEs and at the same time strengthens the hands of States to act decisively in the interest of their people in the face of corporate interests. Even better, it ensures that rural women, who continue to bear the brunt of the impacts of TNCs and OBEs, are recognized as actors in their own development paths, rather than mere victims.

We thank you.

Lucien Limacher at the UN BindingTreaty negotiations

Oral Submission – Subject 4: Preventive Measures

Good afternoon Chairman Rapporteur. My name is Lucien Limacher from the Legal Resources Centre, South Africa.

One of the Legal Resources Centre’s missions is to seek cre­ative and effec­tive solu­tions by using a range of strate­gies. These, amongst others, include impact lit­i­ga­tion, law reform, par­tic­i­pa­tion in part­ner­ships and devel­op­ment processes, edu­ca­tion, and net­work­ing within South Africa, the African con­ti­nent and at the inter­na­tional level.

In capturing this spirit above, this section, Preventive measures, under the draft elements document can be the start of a creative and effective tool to stop the corporate impunity currently impacting affected communities and the environment.

Taking my colleague’s statement made yesterday that, “we cannot pretend that States do not operate in the context of the corporate capture of their law- and policy-making processes and their implementation,” it is fitting at this juncture that the following three points are made relating to the section on preventive measure:

The first point relates to the phrase, “all concerned TNCs and OBEs shall adopt a vigilance plan consisting of due diligence procedures to prevent human rights violation abuses.” Although a binding vigilance plan is welcomed it does not go far enough in preventing human and peoples’ rights including community rights that revolve around environmental pollution, degradation and even destruction of livelihoods. It is therefore proposed that the draft elements document incorporates, over and above a binding vigilance plan, an article or clause that allows for a procedure for public comment, consultation and, where relevant, consent or agreement with the plan at this early stage of a human rights risk assessment exercise or vigilance plan.

This brings me to the second point namely elaboration in the draft elements document to incorporate unequivocally the right to free prior informed consent (“FPIC”). The words “states shall promote adequate consultation” must, in the case of directly affected communities, include, “free prior informed consent to be obtained from affected communities.” Failing to recognise FPIC will leave affected communities by the wayside and allow the status quo to continue and over shadow universal human rights and to degrade the environment. FPIC and the right to development is recognised in the African Charter on Human and Peoples’ Rights, it is emphasised in the UN resolution A/HRC/RES/26/9 and in the Declaration on the Right to Development, adopted by the General Assembly through its resolution 41/128 on 4 December 1986.

Lastly, the third point refers to the human rights impact assessment. As mentioned in the Legal Resources Centre submission under general frameworks, it is critical than when a human rights impact assessment is undertaken that a similar impact assessment is carried out regarding the environment.

I thank you.

Oral Submission – Subject 9: Mechanisms for Promotion, Implementation and Monitoring

The Legal Resources Centre firstly responds to a comment made by a panelist on the topic of Jurisdiction this morning that corporate violations happen only in countries with “fragile democracies”. We strongly reject that suggestion. Evidence suggests that there is hardly a country in the world that is not the location of human rights violations by corporates. Perhaps our disagreement lies in what the panelist regards as human rights abuses. The purpose of this legally binding treaty is not only to end the grossest of human rights violation, but also those violations that, through corporate capture, have become normalized and even legalized in several countries. For examples, look no further than the land and resource grabbing and environmental degradation pervasive on the African continent.

The LRC notes that civil society and even states from across the world have persistently raised the principle and right of Free, Prior and Informed Consent (or FPIC) to be included in this treaty in this forum. As we move towards negotiating a draft text in 2018, we wish to elaborate on how FPIC should act as a mechanism for the promotion, implementation and monitoring of the human rights of affected communities. FPIC refers both to a substantive right under international-, regional – and indigenous customary law as well as a process designed to ensure satisfactory development outcomes.

To realise this right, the affected community’s decision whether to allow development that will affect their rights, should be made free from any obligation, duty, force or coercion. Secondly, the community has the right to make the development choice prior to any similar decisions made by government, finance institutions or investors. In the words of the African Commission on Human and Peoples’ Rights, the community’s right to FPIC is not realised if they are presented with a project as a fait accompli. Thirdly, the community must be able to make an informed decision. That means that they should be provided sufficient information to understand the nature and scope of the project, including its projected environmental, social, cultural and economic impacts. Such information should be objective and based on a principle of full disclosure. The community should be afforded enough time to digest and debate the information.

Finally, consent means that the community’s decision may be to reject the proposed development. Consent is not mere consultation. The community can say no. Because the right to say no places the community in a position to negotiate, it is also a process. FPIC is not designed only to stop undesirable projects, but also to provide communities with better bargaining positions when they do consider allowing proposed developments on their land or resources.

FPIC should not be relegated to a risk-management exercise. Rather, FPIC should be the basis upon which the relationship between the affected community and the company is built. The role of the State in enforcing this right is crucial, but not a prerequisite for building more equitable negotiating and bargaining positions between the affected communities and the developers.

Thank you.

Oral Submission: Subject 10: Victims

The Legal Resources Centre is a 4 decades old public interest law firm based in South Africa.

My colleagues and I are community lawyers who have represented communities against corporates and mining companies for 4 decades between us. We base our arguments on our experience, community instructions and numerous court cases.

We are adopting this slightly pompous introduction in reply to the expert corporate lawyer on the panel yesterday who introduced himself and rooted his knowledge and experience in taking instructions from corporate TNCs for a decade.

Communities in the south know themselves far better than TNCs, they know their histories and they will take responsibility for their destinies and that of their children.  Our communities have knowledge and they have agency.  They are not victims. Faceless TNCs in the capitals, their directors and their shareholders, their legal and financial advisors and financiers may never know what it means to be cared for in a community context.

We have time for just one story, but please know that there are many. This is the story of the Xolobeni community.

Ms Nonhle Mbuthuma Forslund is one of the great women leaders of the Xolobeni community, Pondoland South Africa, a community that has held out for more than a decade against an Australian mining company TEM … a titanium mine that would destroy the community and the livelihoods of the families on their ancestral land.  The struggle against a mine that has also lead to the callous murder of the community leader Bazooka Radebe 18 months ago.  The murder remains unresolved.  Nonhle cannot be here today because a bureaucrat in the Swiss Consulate in South Africa rejected her visa application three times over… partly because her village does not have street numbers and electricity bills.  But in fact she has much more …. She belongs.  She belongs to her community and the community’s land.  They know their history, they have an indigenous legal system and they remain committed to choosing their own development path in terms of pace and scale. Nonhle’s community went to court saying that law from below gives them the right to say no and we should support her with a binding instrument at the level of international law.

Yesterday, the Southern African Permanent Peoples’ Tribunal[1] Jurors’ report, was released. The Xolobeni and Marikana communities together with 17 other communities gave evidence before a jury consisting of peoples’ jurors. They have respect for law from below. The expert corporate lawyers should take note of what the report says (and we can provide them with copies), for example:

  1. With economic gain as the prime motivation, anything that hinders that objective is treated by states and TNCs as an obstacle that must be subdued or eliminated. The pursuit of gains and profits for the TNCs and as revenue for governments place the communities and the environment at great risks.
  2. The constant refrain “NOT without our consent,” demonstrates a peoples-rooted development.
  3. It is important to explore legal mechanisms making the national governments and the TNCs accountable at domestic, regional and national level. It is vital for States to recognise progressive and participatory indigenous customary law.  We must engage in the discussion of treaty law and state domestic law that can be self-executing and monitored by communities as principal actors, in co-operation with civil society.  The evidence presented to the peoples’ tribunal shows that state and corporate law continues to mistreat the poor.

Chair Rapporteur, whoever tries to stop or delay this process today, and those who have not even showed up, shall have that reality on their conscience.

We thank you.


For more on the Binding Treaty: https://www.escr-net.org/corporateaccountability/hrbusinesstreaty

Twitter: Follow Treaty Alliance @treatyalliance and the hashtags #BindingTreaty #StopCorporateAbuse

 

 

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.