A tribute to Arthur Chaskalson

Geoff Budlender
Opinion
This is a tribute by Advocate Geoff Budlender to the late Chief Justice Arthur Chaskalson at a memorial service in Johannesburg City Hall on 5 December.

Arthur Chaskalson was an extraordinary human being, who had four remarkable careers.

His first career was as an advocate at the Johannesburg Bar. He had a stellar commercial practice – and some very uncommercial clients. The Rivonia trial is well known. He represented activists from all parts of the struggle for liberation. He was inspired by his clients. He was inspired by their courage and commitment to freedom.

He was an advocate of extraordinary skill. He did not engage in rhetoric or sound bites. His weapon was precise and remorseless logic. He was, quite simply, the best arguer of a case that I have ever heard. I remember the Komani case in the Appellate Division, in 1980. Mr and Mrs Komani had a simple yet profound desire. They wanted to live together. The pass laws forbade it. The law was plain, and it was against them. Arthur constructed a brilliant and novel argument which was so persuasive that Chief Justice Rumpff – hostile from the outset – became frustrated: “I think you are leading us down the garden path”, he said to Arthur. But he could not find the flaw in the argument, because there was none. Ultimately, the Appellate Division unanimously decided in favour of Mr and Mrs Komani. It was the finest advocacy I have ever heard.

Arthur believed in the importance of robust and durable institutions in creating the space for democracy. One of those, he believed, could be the legal profession. Under apartheid, much of the legal profession was cowed by those who held power, and was subservient to them. It was, frankly, a degrading spectacle. Much of the profession abandoned those of its members who were harassed, detained, banned or assassinated. The profession served mainly power and wealth. Arthur worked to build the institution of an independent and fearless profession, which served the people and which served justice. He saw this as a foundation of the rule of law.

He returned to this theme in his last major public speech, just three weeks ago, on 9 November. He spoke to the Cape Law Society on “The rule of law: the importance of independent courts and legal professions”. He pointed out that the profession is under an obligation to serve the public interest, that it does not do so if it serves only the elite in our society, and that legal services have to be available to all who need them. And he said that an independent legal profession is now an imperative of the Constitution. He quoted the Chief Justice of New Zealand:

“Effective judicial process cannot be obtained from independent judges without independent lawyers.”

He then undertook a typically careful analysis of the present version of the Legal Practice Bill. His conclusion was devastating because it was so typically unembellished:

“The legal profession has a duty to itself and to the people of our country to do all that it can to protect its independence …. by explaining to the general public the role of an independent legal profession in protecting democracy, and by raising its voice against measures calculated to erode that independence. The Legal Practice Bill in its present form is such a measure.”

It would be a suitable tribute to Arthur if we ensured that the Bill, when adopted, protects the independence of the profession, while ensuring that the profession serves the public interest and not just private interests. We can do better.

Arthur’s second career was at the Legal Resources Centre. He was its inspiration, its leader, and the key to its success. He saw the need for a durable institution committed to ensuring that those who most need it, receive the protection of the law. He built it patiently, skillfully, carefully. The result of that careful work is that the LRC stands 33 years later, still committed to the work which it started in 1979. It is the same work, for the same people, now in a very different legal and political context.

Again, he drew inspiration from the people whom he and the LRC represented. I remember the cases around bus fare increases - in Johannesburg, the principal client was Nthato Motlana; in Cape Town, it was a young community organizer named Trevor Manuel, whose local lawyer was Dullah Omar. I remember Tom Rikhoto and the pass laws; the case for the dependents of Saul Mkhize, who was killed by a policeman when he led the Driefontein community’s resistance to forced removal; the Marievale litigation for Cyril Ramaphosa and the NUM. Arthur relished being able to contribute through this work to the struggle for freedom. He then became involved in institution-building on a grander scale: he started his third career, his constitutional work. While we were still in the throes of apartheid, he was an adviser to the Namibian Constitutional Assembly. Not long ago I was in Namibia, in the company of Hage Geingob, the former Chair of the Namibian Constitutional Assembly and Prime Minister. He spoke about their constitution-making process – and then, quite unexpectedly, started talking about Arthur – with awe and affection. Arthur’s role in Namibia was clearly much greater than any of us knew. Because of his modesty, we did not learn about it from him.

Then came his massive work in our own constitution-writing process. His hand is clearly visible in the interim Constitution: his fingerprints are all over the document. You see them in the care, precision, and attention to detail; and you see them in the Constitution’s recognition that we need to go beyond a typical liberal constitution, which aims to limit the power of the state. Arthur understood that we needed a constitution which not only limits the power of the state to interfere with the rights of the individual, but which also regulates the exercise of private power; and even more fundamentally, a constitution which recognizes the need to empower the state to address and redress the consequences of centuries of dispossession and discrimination. We needed a constitution which would provide a framework for the democratic social transformation which was yet to come. The interim Constitution, and its successor the final Constitution, are among Arthur Chaskalson’s most enduring memorials.

And then came his masterpiece – the Constitutional Court. The first Constitutional Court consisted of a remarkable group of people. I do not exaggerate if I say that I am not aware of any other apex court, anywhere in the world, which has had such a rich and diverse array of talent and experience. It included some very large personalities - some with egos to match. Arthur’s job was to weld them together, to lead them, and to build institutional structures and procedures which would be durable. And what a success he made of it.

The Constitutional Court has been an outstanding success. Few would dispute that a very large part of the credit for this has to go to Arthur Chaskalson. The respect and affection in which his colleagues held him was palpable. It is not just a matter of the penetrating and profound judgments which he wrote. Perhaps even more importantly, he understood how to build this institution, how to make it work, how to make it durable, and how to lead it.

It is an extraordinary story of achievements. Each one of them, standing on its own, was remarkable. Two themes run through all four of these careers.

First, there was the transparent integrity in everything he did. You could trust Arthur Chaskalson. He was a person of rock-solid integrity and morality. The result was that even those who disagreed with him, very seldom questioned his motives. Even his opponents respected him and trusted him. He won trust, and that trust enabled him to achieve amazing results. He was a touch-stone as to what is right and what is just. Second, there was the way he engaged with people. It was respect and concern for people, not doctrinal philosophies, that lay at the heart of his life and his belief in democracy. His core belief was that it is human beings that are really important in life - and therefore also in the law.   He put people at the centre of everything which he did. That, he believed, was the purpose of the struggle for freedom, and the purpose of our transformative Constitution.

I remember the famous Grootboom case in the Constitutional Court. It was a difficult case about the right to housing. Counsel for the government started his argument. He talked about the structure of the Constitution and the bill of rights, separation of powers, and so on. After about five minutes Arthur interrupted him. He leaned forward and said “Mr X, leave aside for a moment these questions of constitutional theory. Just tell me this: where does the government suggest these people should sleep tonight?” Possibly for the first time in his career, Mr X was lost for words – he had no answer, for there was none. Arthur had put his finger on the issue. These elaborate constitutional structures and principles were there for a reason – they were supposed to serve people, and in particular poor people. Arthur was not asking a rhetorical question. He was saying “If your theories can’t answer that question, then they can’t be right, because our Constitution is a Constitution for people, and particularly for those who are marginalised or vulnerable.”

It was also people who caused Arthur the most pain. It caused him deep pain when we failed to live up to the promise we made each other in our Constitution, that we will build a society in which all can live in freedom with dignity. Greed caused him pain, corruption caused him pain, and lies in our public life caused him pain. There was much around us at the moment that caused him pain, as he made clear in his speech to the Cape Law Society. But through that pain, he retained hope and confidence in the people of the country which he loved. He believed that we would yet put this behind us, because he believed in people. Many judges are respected and admired. Arthur, notwithstanding his reserved manner, was loved by many. That was because of the respect, concern and equality with which he treated everyone.

We mourn our loss of Arthur Chaskalson, but we also celebrate a good life filled with achievement and fulfilment. One of the most important reasons for that success, is that it was a life which was personally blessed: Arthur Chaskalson and his beloved wife Lorraine had a 50-year love affair, a 50-year partnership. They supported each other in everything which they did. They took care of each other when they were in trouble, they gave each other advice when they did not know what to do, they acted together, in unison. They were a team. Arthur loved Lorraine very deeply, she was the core of his life.

Just a couple of months ago, Arthur organised and orchestrated an amazing birthday celebration for Lorraine. It took place over an extended period in at least three venues, in different parts of the country, with the people whom Lorraine loves. It was a wonderful demonstration of his love for her. It is almost as though he knew, intuitively, that this was his last opportunity to do this. It was a wonderful and happy and timely celebration.

Arthur was blessed by Lorraine, and she by him. Our hearts go out to her, to Matthew and Susie, to Jerome and Jackie, and to their grandchildren.