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.

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.

The Road to Freedom – George Bizos

Freedom Month Lecture Series, University of the Witwatersrand

Speech by: Advocate George Bizos SC

(Counsel, Legal Resources Centre)

assisted by Byron Jaffe, Monika Juengst-Miechzkowska and Avani Singh (Legal Resources Centre)

presented at the University of the Witwaterstrand, hosted by the Department of Arts and Culture

21 April 2016

Introduction

The progress towards democracy in South Africa can only be described as one of triumph.  We have broken from the shackles of the apartheid era, and have the Constitution of the Republic of South Africa, 1996 as the high water mark of our constitutional dispensation.  At the outset, I must state that I refuse to accept the proposition of those who say that nothing has changed.  A simple example of this can be seen at my office everyday, where all of us, of varied races and backgrounds, eat lunch together in the kitchen; this is a far cry from my early days at the Bar, where I had to fight to be allowed simply to share chambers with Advocate Duma Nokwe because of the difference in the colour of our skin.  Indeed, this evening, at the kind invitation of the Department of Arts and Culture for which I am grateful, I have the opportunity to share with all of you from so many walks of life my reflections about our road to freedom, something that would have been impossible a few decades ago.

In refuting the view that nothing has changed, I must also hasten to add that we of course have a long way still to go in achieving our constitutional ideals.  We have perhaps never before in our post-1994 democracy been confronted as starkly with the realities of inequality as we were with the recent student protests.  South Africa remains one of the most unequal societies in the world, and the struggle to remedy that continues.

The meaning of freedom for me still finds its point of departure in the opening paragraphs of the Freedom Charter of 1955.  It stated powerfully that:

We, the People of South Africa, declare for all our country and the world to know:

that South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of all the people;

that our people have been robbed of their birthright to land, liberty and peace by a form of government founded on injustice and inequality;

that our country will never be prosperous or free until all our people live in brotherhood, enjoying equal rights and opportunities;

that only a democratic state, based on the will of all the people, can secure to all their birthright without distinction of colour, race, sex or belief;

And therefore, we, the people of South Africa, black and white together equals, countrymen and brothers adopt this Freedom Charter;

And we pledge ourselves to strive together, sparing neither strength nor courage, until the democratic changes here set out have been won.

Have the changes set out in the Freedom Charter yet been won?  Certainly, we have the frameworks in place to make this possible, but the difficult questions arise when we look at the lived experiences of the majority of our people.  And, if this change has not yet been fully realised, are we again prepared to re-commit to sparing neither strength nor courage until it has been won?

We were beautifully naïve when we began on this road to freedom, cautiously optimistic but almost too afraid to truly imagine the potential that a democratic South Africa could hold.  The end goals of our efforts were wide spread, spanning the nation of South Africa and its diverse people.  My reflections tonight come from the experience of one who lived through the early days of freedom, but who continues through my work to at the Legal Resources Centre to grapple with the ongoing struggles.  I think of the birth and growth of freedom in South Africa as being not unlike the way one might reminisce about a beloved child: they did not always run, but they crawled, fell, and even cried; however, because they were their kin by blood, ultimately rose up tall.

A history of scars and tragedies

Ask any South African about historical heroes, and you would receive a plethora of names who served as our guiding lights into the democratic era; in their wisdom, they saw the start of the fall of colonialism as a turning point in the realisation of the ideals of freedom and equality for all.  For many, these were ideals pursued not knowing whether the realisation would materialise in their lifetimes, but with a certainty that they were worth pursuing nonetheless.

We saw a world where the territorial gains by colonialists were being dissolved; where the right to self-determination, free of want and fear, was being realised; trade barriers were being lowered; and aggressor nations were being disarmed.  In this way, one began to see a version of South Africa that had not truly been imagined before.

But the fall of apartheid was a complicated beast.  There was no overt aggressor state, but rather than aggressive controller.  In the face of this consistent oppression, the anti-apartheid movements – diverse as they may have been, from political parties such as the ANC to workers movements, women’s movements and youth movements – found common cause in the concerted ideal of freedom for all in South Africa.

The cost and the losses that came in realising this freedom cannot be gainsaid.  From the Treason Trial, the student uprisings, the death of activists like Steve Biko and Ahmed Timol in police detention, the hazardous activities undertaken by the military wings – suffice it to say that the suffering was immense.  It is difficult to comprehend the extent and depth of the personal suffering that was experienced.  When I think, for example, of the death of Steve Biko in custody and the fear that more members would suffer the same fate, I remain awe-struck by the continued and concerted efforts of so many people across the country who overcame their fears to pursue the cause.  I must add, though, that in recalling the student uprisings, and reading the recent comparisons with the student movements that we have seen over the last year, I can only pray that we never again see innocent blood being spilled of those pursuing their right to receive a decent education.

Many people continue to carry with them the pain and scars of those days.  When freedom ultimately came, it was not a victory for a particular movement; it was for the people as a whole.  By 1985, we could almost taste freedom, but there was still a long and difficult part ahead before it could be achieved.  The tide may have turned slowly, but it ultimately did turn.

Amidst the pain of those dark days, though, were moments of unparalleled joy.  The release of former President Nelson Mandela, for instance, comes to mind.  The memory of him standing before the world, a free man smiling with his arms raised high – nothing can compare to that moment.  On the one hand, I relived some of the darkest times of South Africa’s history in that moment then and there; but on the other, I realised too that many of the struggles, the violence and the heartache were behind us, and what lay ahead was for us to get down to the business of running a free and democratic country.  The challenge was daunting, but thrilling.

A Constitution for all

The Constitution and I have had a long friendship. As some of you may know, I participated in the negotiation and drafting of the Constitution, and was a member of the team of lawyers who argued for its certification before the Constitutional Court. For many years, I have been involved in constitutional litigation, and today still work in the Constitutional Litigation Unit of the Legal Resources Centre. As with all good friendships, I have defended it; I have challenged it; and I have tested its limits and bounds. However, to this day, I continue to stand by it and believe in the potential that it holds.

The Constitution was approved in May 1996 by the National Assembly by an overwhelming majority: 421 of the 435 members voted in favour of it; only 2 opposed; and the other 12 abstained. This, however, was only the first hurdle. It still needed to be certified by the Constitutional Court as being in line with the 34 constitutional principles contained in the Interim Constitution.[1] This was a novel approach, and we were uncertain of what to expect.

The five of us representing the Constitutional Assembly – a team which included Advocate Trengrove SC and Advocate Moerane SC – drafted more than 250 pages of argument and schedules that we hoped would show conclusively that the proposed constitution complied with these principles. The debate in the courtroom was heated and robust, and I remember reading the placards of a leading Johannesburg newspaper after the hearing which said “Bizos clashes with judges”. I found the characterisation jarring, preferring to think of it as a necessary consequence of the job. But regardless, this so-called clash was a critical process to test the strength and resilience of what was to become our Constitution.

When it came to certification, the Constitutional Court was by no means unaware of the gravity of the task before it. As the Court stated in its judgment, “we were mindful, during both the previous deliberations and again now, that the finality of certification demanded and demands we make assurance doubly sure”.[2] At the hearing, Justice Goldstone commented that a future Constitutional Court “sitting in ten or three hundred years’ time, would have to refer to the constitutional principles. They do not disappear. They would be a primary source of interpretation” – to which I responded, “[e]ven in a deep freeze, they would be there forever”.

We weren’t successful in our first attempt at certification, but the Court was satisfied following the second hearing that the 34 constitutional principles had been met, and certified the amended text which was signed by President Mandela a few days later on 4 December 1996.[3]

While it is my hope that the principles and values underpinning the Constitution are never allowed to wane, the Constitution itself is not necessarily cast in stone. It should, and must, be given the space to evolve naturally in line with society’s evolution. This is clear from the Constitution itself, which allows for its own amendment, a matter which I will return to again shortly. In my biography, Odyssey to Freedom, I began the chapter on the Constitution with a quote from former President Nelson Mandela, in which he says in reference to the Constitution that:[4]

[It] is a living document. Our understanding of its requirements will and must adapt over time. But the fundamental principles are and must be unchanging. Full understanding of how and why those principles were adopted will help us to ensure that we remain true to the solemn undertakings which we have made to each other and to those who will follow us.

I have said many times that we must respect, but not blame, the Constitution.  It is for us to give life to it, and ensure that it achieves what it sets out to do.

Reconciling with history, truthfully

The Epilogue to the Interim Constitution states that:

The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles and a legacy of hatred, fear, guilt and revenge.

These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for Ubuntu but not for victimization.

Many ask whether the Truth and Reconciliation Commission did – or ever could have – truly achieved reconciliation in the face of all the struggles that the people of South Africa had endured.  Of course, this is exacerbated by the fact that there are many who still do not have land and resources, and continue to be frustrated in the realisation of their rights.  As former President Thabo Mbeki has explained:[5]

Within the ANC the cry was ‘to catch the bastards and hang them’.  But we realised that you could not simultaneously prepare for a peaceful transition.  If we had not taken this route I don’t know where the country would have been today.

And so, we made peace.  We acknowledged that truth telling and a process of realising rights was better than a punitive one.  Looking at you today, I have a profound sense of pride at what we as a country were able to achieve.  The road to reconciliation was cobbled together with aspirations, compromises, and an inevitable balancing of tensions between the idealists and the skeptics; for those of us intimately involved in the process, what kept us on this road was the belief that the future of our democratic South Africa depended on it.

So who were these people who I am so nostalgic for, which I should say can severely alter whatever can be understood in the present?  They weren’t all exceptions to their background, skin colour or privilege.  If we see them by the current categories we hold for ourselves, we fail to see what they went through as individuals, even collectives. In order to understand the past, to hold onto hope for the future, we have to delve into the idea of universal sufferage.  I relate this to my time on the TRC primarily because, to my knowledge, it was the first commission of its kind that was empowered to grant individual amnesty.  In fulfillment of its truth-seeking mandate, it was given powers of subpoena and search and seizure.  Of critical importance, it was made open to the public and the media to ensure transparency and that it was accountable to all South Africans.

There is a reason why we call it a rainbow state; we see colours on our skin, red, white, tan, black, high above the ground, directly on the ground, even as a similar group, each has been burnt under the same sun.  In this same way, just as the sun has revolved around South Africa many a time, the best way to understand the present through wholly understanding and acknowledging the past in an effort to move forward.  The individual’s historical suffering reveals the most in this way, which will lead us to how we can maintain hope and deliverance from the painful truths we find each day.

The present, as described by the scars from the past

It is easy to say that from our democratic experiment that has remained fairly stable since 1994, this has brought us closer towards fully evolving from apartheid.  But as I said before, the full history of the toddler learning to walk depicts its tumbles and crawls.  If we are to understand ourselves fully, to distance ourselves from the criticisms we bring upon ourselves and our government, and to better ourselves in the most natural way possible, we must note our pitfalls.

The most obvious might be the fact that there still are remnants of apartness, largely driven by economic disparity.  According to an Economist report in 1994, the unemployment rate was 13%, at the time considered to be the worst; this, sadly, has increased further over the intervening twenty years, and remains one of the most significant challenges facing South Africa today.  According to reports, half of South Africans under the age of 24 looking for a job are unable to find one; and of those who have jobs, a third earns less than $2 a day.  We still see economic disparity drawn directly along racial lines, with 62% of black people living below the poverty line.

This must change if we are to give effect to the fundamental values contained in our Constitution, most importantly that of ubuntu. As our Constitutional Court stated in Dikoko v Mokhatla:[6]

In our constitutional democracy the basic constitutional value of human dignity relates closely to ubuntu or botho, an idea based on deep respect for the humanity of another. Traditional law and culture have long considered one of the principal objectives of the law to be the restoration of harmonious human and social relationships where they have been ruptured by an infraction of community norms.”

If we accept the values of ubuntu, and the fact that each of our humanity is wrapped up in that of others, then we cannot truly live a dignified life until this is enjoyed by all in our country.

The inclusion of justiciable socio-economic rights in the Constitution was a significant milestone, subject to the qualification of progressive realisation and availability of resources.  The goal requires the state to improve the enjoyment of socio-economic rights to the maximum extent possible, even in the face of resource constraints.[7]  But how does one reconcile the understanding of available resources in the face of the rampant corruption that we have seen to take place?  We are entitled, as we were promised, to demand openness, transparency and accountability from all, even those in the highest echelons of government, if we are to enjoy the ideals that were so hard won.

Look back on the path you have taken, but don’t only use your eyes to see

I understand what it means to be young and restless.  I understand the enthusiasm, the need for quick change and the want to leave behind a legacy.  We have, I hope, shared aspirations to see our beautiful country flourish.  I remember when I was at university, a lecturer told my class to look to the left and look to the right, and know that of the three, only one person would remain by the end of the course – and that if you were a woman, you shouldn’t even bother.  We know, thank goodness, that it is no longer the case, and again I remind you of how far we have come on this path to freedom.

The path to freedom may lead in many different directions, but we must not falter as we continue this march.  As I have already said, we must demand accountability and transparency.  We must insist that all levels of government perform its duties to the people of South Africa, from abiding by court orders, effectively rolling out social assistance, and implementing recommendations of commissions of inquiry such as that of the TRC and Marikana.  We must ensure that civil society organisations and activists are fiercely protected, and we must share a mutual outrage at instances such as the killing of the anti-mining activist, Bazooka Radebe, in the Xolobeni community in the Eastern Cape.

Yesterday, I was deeply honoured to receive the Freedom of the City award from the City of Johannesburg.  I am pleased to tell you that I am now what is known as a “Freeman”.  But in having this honour bestowed on me, I realise that this is trite, for I – together with all of you – have enjoyed two decades of freedom.  During the TRC, in reliving some of the darkest moment in South Africa’s history, we remained convinced that it was through this truth-telling and a full understanding of the past, no matter what the circumstances, that we as South Africans undoubtedly have hope for the future.  I still believe this to be true.

Almost exactly a year ago, at a similar university gathering, I issued a challenge to the audience, which I issue to you too today.  The challenge is this: I want you to think of one way in which you can advance the values of our Constitution in your community. Keep track of it; record your progress; and whenever you believe you have achieved what you set out to do, challenge yourself to do something more. Do that in the name of our Constitution and the aims and values that underpin it, and be unrelenting in your pursuit of this.

I am reminded of the words of Vaclav Havel, the former President of the Czech and Slovak Federal Republic, who said:[8]

I am not an optimist because I am not sure that everything ends well, nor am I a pessimist because I am not sure that everything ends badly.  I just carry hope in my heart.  Hope is not a feeling of certainty that everything ends well.  Hope is just a feeling that life and work have a meaning.  It is not an estimate of the state of the world.  It is something that you either have or you don’t, regardless of the state of the world that surrounds you.  It is a dimension of human existence.

Come what may, let us never lose sight of the road we have travelled to enjoy this freedom, and the hope that we continue for the full realisation of our constitutional ideals.

Thank you.

[1] Interim Constitution Act 200 of 1993.

[2] Certification of the Amended Text of the Constitution of the Republic of South Africa1997 (2) SA 97 (CC).

[3] Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC); Certification of the Amended Text of the Constitution of the Republic of South Africa (as above).

[4] G Bizos Odyssey to freedom (2007) at p 541.

[5] Quoted in Boraine “A country unmasked” (2000) at p 13.

[6] 2006 (6) SA 235 (CC) at para 68.

[7] Chenwi, Lillian; “Unpacking “progressive realization”, its relation to resources, minimum core and reasonableness, and some methodological considerations for assessing compliance”; De Jure 46 Volume 3, 2013, pp 742

[8] Quoted in Boraine “A country unmasked” (2000) at p 2.

Remembering Mandela: a friend to George Bizos

I have been interning at the Legal Resources Centre this week and was asked if I would like to speak to George Bizos about his thoughts on the anniversary of Mandela’s death.

In the elevator I read over the insights that I have scribbled down to guide my conversation with George Bizos – “Mandela” (great start), “Leader”, “Icon”, “Freedom”- when it dawns on me that, while Mandela undoubtedly represents all of these things, to the man with whom I am about to speak, Mandela was much, much more. To George Bizos, Mandela was a friend.

I begin to think about what it would be like, what it would feel like, to lose a friend. I think about what I would remember. Perhaps how we had first met, how we had come to be friends, what parts of that person would still feel so immediate even after they had gone.

And so, in his office, I ask the great advocate how he and Mandela came to be friends. He begins by telling me that the two men met at university at a student rally.  At the time the government had criticized certain “leftist” students for their political activities. Apparently it was the belief that these students would soon temper their wild ways under the good influence of the other students who were of “sound sensibilities”. However, in his speech at a student rally Bizos, then in his first year, stated emphatically that,

“If wanting blacks at university to be treated equally irrespective of colour makes me a leftist, then I am proud to be one”.

After the rally Mandela approached Bizos and introduced himself. The two spoke about their political convictions and found common ground, having both grown up in rural areas (Mandela in the Eastern Cape and Bizos in rural Greece).

My concern however, was not with when they had become friends, but with how. How had two men separated by stringent laws prohibiting their interaction come to share a friendship that would span almost 65 years? The answer, it would seem, was simple.

“You know, friendships grow sometimes because of the things you can’t do together”, he said offering his hand to me with raised eyebrows, in the way that older men seem to do when something is apparently fairly obvious.

In George Bizos' office is this photo of him and Nelson Mandela
This photo of George Bizos and Nelson Mandela sits proudly in Bizos’ office

Bizos tells me about when he and Mandela would work on cases together, long before the days of the Rivonia trial, when the two men were young legal practitioners at the very start of their respective careers. They could not eat lunch on the same bench or in the courthouse together. Instead, Bizos would be sent to buy fish and chips, as it was understood that as a white man he would receive better, faster service and at the end of the day they were hungry. He tells me this with the grin of a young man reveling in the memories of his defiance. He and Mandela would then eat their lunch in his small weather-beaten Morris Minor, speaking about the concept of liberty, their futures and South Africa, as the smell of vinegar and battered fish engulfed the two friends.

Hanging on George Bizos' wall is this picture of the Treason Trial
Hanging on George Bizos’ wall is this picture of the Treason Trial

He told me a story about when he went to visit Mandela in prison. Bizos was waiting in the visiting room when Mandela was brought in by eight wardens. The two men embraced and Mandela turned to Bizos and said, “I have not been here very long but it seems I have already forgotten my manners, I have not yet introduced you to my royal guard”. Mandela proceeded to introduce George Bizos to every one of the guards, in Afrikaans.

When I asked Bizos what he missed the most about Mandela, Bizos said “his sense of humour”, but mostly because Mandela never thought himself a funny man. Bizos ended off our conversation by saying that people would often tell him that his advice to Mandela during the Rivonia trial saved Mandela’s life. But what Bizos believes saved his life was his popularity, his steadfastness and the fact that he was viewed by young people as a leader that could be trusted.

To the world, today marks the loss of an icon, a leader of men, the father of our country. But to George Bizos, today marks the loss of something far greater – the loss of a friend.

I believe that when we celebrate today to honour the life of Nelson Mandela, we celebrate not only the life of an icon but also that of a man; a great man whose life was punctuated by a friendship that meant so much to two people.

By Caitlin Bruce

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