Fidelity and betrayal under the law

Edwin Cameron
Bram Fischer. Photo from SA History Online.
Edwin Cameron

Constitutional Court judge Edwin Cameron delivered the Bram Fischer Memorial Lecture at Oxford University on 16 June. While much longer than pieces we normally carry, the speech is relevant to vital current issues and we present it here in full.

I thank my law clerk Yana van Leeve for hard creative work in helping construct the ideas and content of this lecture, and Tess Peacock for significant help in finalising it.

1. It is a pleasure to be invited to celebrate the life of a remarkable man. I want to thank Lord Joel Joffe, the animating force behind the lecture and my presence here tonight, as well as the chair of the organising committee, Dr Nic Cheeseman, and Julie Knight, of Rhodes House, for all they have done, as well as the Warden, whom I thank for his kind introduction. I thank the Vice-Chancellor, Professor Andrew Hamilton, for his attendance, but I acknowledge him only after two more important people - my law clerk, Yana, who helped me with preparing the lecture, and my godson, Sizwe Mpofu-Walsh.

2. We must call ourselves to a proper understanding of the complexity of our history. For if we abandon our history’s intricacy, we forfeit our chance of understanding our present and of taking constructive action against injustice. That, to me, is why the Bram Fischer lecture is important. I am honoured to try to evoke his legacy tonight in pursuit of this.

3. I do so particularly as someone who, like Bram, had an Afrikaner heritage: my mother was a Schoeman, whose forebears came to the Cape in 1704. Though my primary language has long been English, my first language and my mother tongue, quite literally, were Afrikaans. There is some significance, and some comfort, in reflecting on Bram’s Afrikaner origins.

4. My lecture reflects on three poignant features of Bram Fischer’s life that signal to us today:

  • A hero of contradictions and compromise: Bram Fischer was a hero, but his heroism sprang from deeply compromised moral positioning. We must not overlook the cost of compromise - but perhaps also its necessity - in celebrating his life.
  • Struggle for justice under law in conditions of imperfection: Despite his life’s compromises, Bram Fischer’s life displayed a remarkable integrity. For him, there was no separation between the personal and the political, between the practice of law and the pursuit of justice. His life was integrated with his political convictions. As a lawyer, he committed acts that constituted legal treason against the system of laws within which he practised. But he did so because of his abiding faith in the capacity of the law to yield justice. That is the call his life makes to us - to continue the struggle, in conditions of imperfection, to make just laws, and to make law just.
  • Dissent and challenge from within: Bram Fischer’s courage entailed a radical challenge to his own heritage, to his family’s history and connections, and to the establishment of his time. We admire him. But too easily we forget that most of us are members of a different, evolved, even new establishment. His life calls on those of us in the new South African elite to shed comfort: on what should we be speaking out? What should we be challenging? And from what should we be dissenting?

5. Bram Fischer’s was an intricate life, one of steadfastness and principle. But it was also a broken life, one of deep compromise -a rich, fulfilled life of achievement and joy, but also of tragedy and seeming defeat.

6. The eventual triumph of some of the ideas he fought for - the ideals of democracy, social equality and non-racialism - should not obscure the complexity and pain of his life and the choices it evidences.

7. Tonight I want to reflect on the shadows and complexities of Bram’s life - his breach of the law while showing a fidelity to justice; his rejection of Afrikaner nationalism and capitalism; his unwavering commitment to Communism, which remained steadfast through the degradation and the millions of deaths Joseph Stalin inflicted upon the Soviet Union; but his even more unwavering pursuit of non-racial social justice in the country of his birth.

8. Like Mandela, Bram is celebrated with a saint-like quality. Yet he lived in brutal times. His hands were grimed with the tactics he thought the cause demanded; his conscience led him to act in spite of the law, as his political convictions themselves were outlawed.

9. Under these circumstances, my law clerk Yana van Leeve found a luminous passage from the poet Stephen Spender, Bram’s near-contemporary at Oxford. [1] He says -

“there is no historic correctness [that] achieves good independently and in spite of the moral qualities of those who support the cause. Unless the cause is maintained by … those who are as scrupulous in their personal behaviours, judged by personal standards of loyalty and honesty and affection, as by their outer devotion to it, violence, hatred and lies which are too easily justified by an external cause, become the personal attributes of its supporters.”[2]

10. These words suggest the resonance of Bram Fischer’s life for our own times. For he was “scrupulous in his personal behaviours”; if judged by “personal standards of loyalty and honesty and affection”, he would earn surpassing human ratings. It was in his grander moral choices - of ideological system and affiliation - that questions arise about his moral resolution. We must not overlook these questions in appreciating his life.

Bram Fischer, hero but man of compromise

11. Bram Fischer’s was a life of profound moral complexity and compromise. His affiliations and choices show massive, indeed, extreme, contradictions.

12. The contradictions start early, when he accepted the Rhodes Scholarship.[3] This was in 1930, scarcely three decades after Rhodes’s death in 1902, and the end of the Anglo-Boer War, in which tens of thousands of Afrikaner women and children died in British concentration camps.

13. Not only did Bram accept the Scholarship - but he carefully planned how to get it. He calculatingly cut short his studies at UCT to enrol instead at Grey University College in Bloemfontein, to give himself a better chance than he would have in Cape Town: as his biographer, Stephen Clingman, notes, “the competition from the Free State would be much weaker”.[4]

14. At the time, accepting the Scholarship was an astonishing decision, especially, as Clingman notes, “for someone whose instincts were so avowedly anti-imperialist”.[5]

15. But Bram seems to have felt the draw of elite entitlement to the Scholarship. He was a product of the Afrikaner aristocracy, and married into it (his spouse Molly was Jan Smuts’s niece). Clingman notes that the Scholarship would give Bram an opportunity to travel “like his father and grandfather” and would confer on him “inestimable prestige”.[6]

16. Rhodes and his legacy were as toxic to Afrikaners then as they are to RhodesMustFall protestors today. Yet Fischer accepted his money and embraced Rhodes’s name. Perhaps he took the Scholarship from good, productive cynicism.[7] Some Rhodes Scholars here today may feel the same.

17. At the very least, Bram’s Rhodes Scholarship showed a moral pliability in the best tradition of Cecil John Rhodes himself.

18. Then, Bram was a member of the SACP, which was dedicated to the revolutionary overthrow of the South African government and its legal system. But he was also an admitted advocate, a Queen’s Counsel, and chairman of the Johannesburg Bar.

19. His navigation across worlds at opposite extremes of social, economic and political mores is remarkable.

20. He seemed to have lived a completely open and free life, commingling growing professional success, deepening political awareness, criticism of the government policies, elite associations and acting for mining oligarchs.

21. But all this social dexterity did not fit comfortably with Molly; and Bram felt the contradictions too. [8] They were noticeable in his personal life: the family was supported by domestic staff - even on holiday they took two or three “servants” with them.[9]

22. In this sense, the Fischers’ revolutionary work depended on a steady supply of African labour in the home.

23. As a communist, he was sworn to destroy the institutions of capitalism - yet as an advocate he accepted the Anglo-American brief on retainer. To accept a retainer at the Bar means that you are paid simply to be semi-permanently available to your client. So Bram was on perpetual standby to be the mining giant’s chief hired gun and cause-pleader, to defend its mining interests, to protect its capital accumulations and corporate profits. [10]

24. On being admitted as an advocate, he swore an oath[11] to uphold the laws of the Union of South Africa - yet, in his capacity as an advocate and an officer of the court, while defending the Rivonia trialists, he made common cause with the accused, stealing court documents and making them available to the ANC’s armed wing, uMkhonto we Sizwe (MK). He might have rationalised that once they were exhibits produced in court, they became public documents. But that is conjecture, for in effect, he became a co-conspirator in treason with those he was seeking to defend against charges of statutory treason.

25. He regarded himself as an honourable man of principle - yet he broke the solemn promise he had made to the magistrate who granted him bail. That promise he invested with his personal stature and moral authority, as an officer of the court and a Queen’s Counsel, to return to stand his trial. Instead, in the dark months after Molly’s death, he estreated his bail, and went underground. [12]

26. That decision had powerful moral justification, but that it entailed a compromise in Bram Fischer’s life is incontestable. [13]

27. So this is here where complexity intrudes.[14] Could Bram the acclaimed lawyer continue to distinguish his actions from those of Bram the committed communist revolutionary? And was there a distinction to be drawn?

28. The lines were increasingly blurred. As lead defence council in one of South Africa’s most vexed trials of the 20th century his handwriting was on documents handed up during the Rivonia Trial, which had been found at Lilliesleaf farm that housed the leadership and headquarters of the ANC’s armed wing, Umkhonto we Sizwe (Spear of the Nation).

29. He may well have been aware of the purchase of Lilliesleaf and its true purpose because the property was purchased with the knowledge of the South African Communist Party (SACP).[15]

30. After the arrest of the MK leaders, he helped to reconstitute MK, and conceal the car of one of the trialists which no doubt would have been admitted to evidence if it was ever found.[16]

31. Bram’s political consciousness no longer permitted him to do otherwise. “No prosecution which depends upon the evidence extracted from persons who have been in solitary confinement can be considered fair by any standards”.[17]

32. Bram recognised that apartheid’s laws “were enacted … for the purpose of silencing the opposition of the large majority of our citizens to a Government intent upon depriving them, solely on account of their colour, of the most elementary human rights: of the right to freedom and happiness, the right to live together with their families wherever they might choose, to earn their livelihoods to the best of their abilities, to rear and educate their children in a civilised fashion, to take part in the administration of their country and obtain a fair share of the wealth they produce; in short to live as human beings.”[18]

33. Here we see the grey area in between rationalisation and justification; to fit his acts in mere right or wrong invites oversimplification. There are no clear paths.

34. What does this say for us?

35. First, we must humble ourselves before the complexity of our history, and the nuances of its lessons to us. One of those is the cost of compromise. We must not seek our heroes only in those whose feet are not of clay. To fail to recognise this is to over-simplify our history and the cost the struggle for justice exacted. And it is to disrespect the complexity of the life Bram Fischer led.

36. Second, none of us live lives of moral perfection, and we should not ask moral perfection of ourselves. Our task is to seek justice and improvement in the world not because we are perfect, but despite our failure to meet that unattainable standard.

37. So there are few easy lessons, either personal or political, from Bram Fischer’s life. Bram Fischer’s moral hands were marked with the soil of the compromises of his life and his political associations.

38. He struggled in conditions of imperfection, both personal and public, and his own contribution to that struggle was imperfect.

39. The struggle for justice in South Africa continues in conditions of imperfection.

40. But, despite the manifold imperfections, Bram Fischer sustained his integrity. His was not a monumental, easy, granite-like integrity - it was integrity hard-won, and hard-practised, every day, amidst agonising moral challenge.

41. Even though this entailed enormous contradiction and compromise, there was, for him, no separation between the practice of law and the pursuit of justice. His life had a unity of purpose, and a unity of action, which was shown in his devotion to the interests of the poor, in his commitment towards non-racialism, both politically and personally expressed, in the fact that though he lived comfortably, he eschewed excessive wealth accumulation.

42. It is from these lodes of virtue that we must mine Bram Fischer’s greatness.

Seeking justice through law in conditions of imperfection

43. What was it like to practise law in apartheid South Africa? Bram Fischer did so for thirty years, rising to the very top of his profession. He contributed to a distinguished tradition of public interest lawyering, in which the apartheid courts were used to challenge apartheid laws and their enforcement.

44. A brave recent book by a brave and distinguished author, Jacob Dlamini, explores the nature of the apartheid legal system, and of betrayal and fidelity under it. The book is called, Askari,[19] a term for guerrillas who were captured by the South African army and “turned” or converted into spies or soldiers for the apartheid regime.

45. The book is pertinent to Bram’s life. It propounds the view that under apartheid the legal system was a “charade”[20] and a fiction. [21] That view has a bearing also on the present legal order in South Africa, and our lives under it.

46. The author challenges the “belief that apartheid South Africa was a nation of laws”. He denounces it as mistaken. [22] Instead, he advances a very different “truth”. This is that “apartheid operated without contradiction both within and without its own ‘legal’ bounds”. [23]

47. “Despite claims to the contrary”, he asserts, “the rule of law under apartheid was a fiction”. “Sure”, he concedes, “the fiction had real material effects, and occasionally resulted in anomalies. But it was still a fiction.”[24] To underscore his point that apartheid law was a fiction, he refers elsewhere to the “law”, in quotation marks, and similarly to a detainee’s “rights”. [25]

48. Askari even has a chapter titled “The Show Trial”.[26] The author suggests that under apartheid political trials were farcical charades. They were show trials like those in Soviet Russia and Eastern Europe, where the accused was a compliant though subordinated but central member of the cast, and the judge and prosecutor and defence counsel knowingly enacted a charade - one that often culminated in the accused’s summary execution.

49. Was the rule of law under apartheid a fiction? Was it not? These are not simple questions with simple answers and we may not be able to find right answers. Bram’s life illustrates this.

50. Dlamini’s analysis does not capture the nuances. The apartheid system manipulated people’s dedication and devotion to the rule of law. And it forced lawyers and lawyerly activists, trained in believing that the law is there to protect people against power,to confront that premise.

51. What Askari fails to capture, but what Bram’s life vividly portrays, is how elusive the pursuit of justice in the starkness of oppression can be.

52. How impossible it is to separate villains from saints, and how distracting the attempt to do so can be. For we are all complicit in the conditions of our time, where there is no moral purity but only the grubbiness of real material life.

53. Bram Fischer for a long time did not believe that the law in apartheid South Africa was a fiction or a charade. On the contrary, he believed passionately in his role within the legal system, and in the importance of reforming the law, to change it away from the deformities apartheid inflicted on it, so that it could afford justice and dignity to all South Africa’s peoples.

54. In December 1942, as a young practitioner, Bram was elected for the first time to the Johannesburg Bar Council, the most influential professional body overseeing advocacy in the country’s busiest courts. He went on to be elected for the next ten years - despite his openness about his politics and convictions. Shortly before he was listed as a communist in 1951, he was elected to the Council for the ninth consecutive year.

55. During his 21 years as an advocate he served on the Council for all except two years. This was not only a remarkable collegial affirmation: it was an extraordinary manifestation of his belief in the importance of law and of guiding practice under it.

56. Bram showed a profundity of commitment to that legal system for, while betraying that same legal system, he was also devastated when, after he went underground, his colleagues at the Bar moved for him to be struck from the roll of advocates.

57. The speed with which they took this decision shocked and deeply pained him.

58. It was reported that the Johannesburg Bar Council considered that Bram’s jumping bail made him “guilty of a deplorable breach of faith.” [27] He was called “a fugitive from justice”. And, though it could more properly be said that justice had become a fugitive from the law, Bram’s anguish at his colleagues’ move to strike him from the roll shows how much he still yearned for their affirmation, and for his role as an honourable member of the profession.

59. He denounced the conduct of the Bar Council as scurrilous and irresponsible. [28] But his mortification in his public shaming by his colleagues, in particular by the professional body upon which he served for so long with loyalty and integrity, was immense.

60. Bram’s letter of 22 January 1965 to the court, explaining why he refused to return to stand trial, concluded thus:

“I can no longer serve justice in the way I have attempted to do during the past thirty years. I can do it only in the way I have now chosen.”

61. In his statement from the dock at his trial, Bram said that he accepted “the general rule that for the protection of a society laws should be obeyed”:

“But when the laws themselves become immoral, and require the citizen to take part in an organised system of oppression - if only by his silence and apathy - then I believe that a higher duty arises. This compels me to refuse to recognise such laws.” [29]

62. Notice the painstaking subjectivity of his declaration. For Bram Fischer never suggested that this applied to everyone, or to all lawyers. On the contrary, his protégés and colleagues continued to practise law under apartheid. He himself invoked their assistance to defend him at his trial before Judge Boshoff in March 1966.[30] Sydney Kentridge, Arthur Chaskalson, George Bizos appeared in court as his defence counsel. They did so robustly and cleverly, advising him on which witnesses should be cross-examined, and on his statement from the dock.

63. The tradition of providing vigorous defence to those charged with treason and other offences against apartheid, continued until apartheid ended.

64. Godfrey Pitje, Priscilla Jana, Shun Chetty, Geoff Budlender, Dikgang Moseneke, Halton Cheadle and other lawyers continued to fight in the belief that the law and the courts should dispense justice, and that their role was to limit the impact of apartheid’s laws.

65. It was John Dugard, a fierce critic of apartheid and its judges, who founded the Centre for Applied Legal Studies at Wits in 1978, in the years after Bram’s death on 12 May 1975, to foster lawyers doing anti-apartheid work.

66. Felicia Kentridge and Arthur Chaskalson shortly thereafter founded the Legal Resources Centre, to provide effective representation to those needing it to oppose apartheid. It continues to represent the oppressed, the poor, the dispossessed and the marginalised.

67. And when the apartheid government changed the law to enable black workers legally to join and form trade unions from 1979, the newly-burgeoning worker movement carefully decided to use the apparatus of the apartheid courts to fight for improved employment conditions and safety and wages, and for organisational rights.

68. And they did so with spectacular success - their growth and strength enabled them to join the United Democratic Front in the mid-1980s and so subvert apartheid.

69. It was because of these choices that the anti-apartheid work of township and community organisations flourished in the growing dissent of the 1980s, even as the heel upon their necks stomped harder.

70. Other organisations, too, like the Black Sash, the End Conscription Campaign and various rural action committees (which opposed forced removals), plus detainees’ support committees, took recourse to the apartheid courts. There they won signal victories over apartheid ideology and practice.

71. No organisation in exile ever suggested that just judges should resign under apartheid.

72. And when Professor Raymond Wacks proposed in the 1980s that all respectable judges should resign from the apartheid courts, he was met with a howl of derision, from almost every side of the progressive political spectrum.[31]

73. Was Bram Fischer foolish or naive or mistaken for working within the legal system for thirty years? Were his successors, those for whom he had lighted the path of public interest law under apartheid, all foolish, naive or mistaken? Were they but characters in a fiction, play actors in a charade?

74. No. None of them thought that apartheid law was a charade. And they were right. The truth was harsher, and more complex. To negate it would diminish the choices those who dispossessed, banished and silenced made to fight on, using the law.

75. Apartheid law was vicious in its efficacy, cruel in its detail, and degrading and subordinating in its effect.

76. But it remained a system of laws, administered by people who continued for the most part to give the idea of law at least some credence. And, most significantly, the system continued to leave enough room for its opponents to fight against it in the courts.

77. In a personal submission to the Truth and Reconciliation Commission, I pointed out that all of us who participated in the apartheid system were responsible for its injustices - a strong thematic resonance with Jacob Dlamini’s powerful book.

78. In a passage the TRC included in its final report, I pointed out that all lawyers and judges, whatever their personal beliefs and the extent of their participation, were in some way complicit in apartheid - but that this did not mean that there were no degrees of complicity in the legal enforcement of apartheid, or the moral blame that should attach to different actors.

79. The TRC found that the legal system and all its members - judges, magistrates, prosecutors, advocates, attorneys and law teachers - were deeply complicit in apartheid. This is because, as it noted, apartheid’s leaders “craved the aura of legitimacy that ‘the law’ bestowed on their harsh injustice” - and thus, superficially, adhered to the rule of law. The consequence was longer and harsher apartheid law.

80. Yet, for all this, the TRC noted that there were always lawyers, like Bram Fischer and his intellectual and moral progeny, who were prepared to break with the norm. They used every opportunity to speak out publicly against laws that sanctioned arbitrary conduct and injustice. They explored the limits of their forensic skills in defending those on trial for anti-apartheid offences. They worked ceaselessly to defend those targeted by the state, often under difficult circumstances and for little reward. It recognised judges, who exercised their judicial discretion in favour of justice and liberty wherever proper and possible.

81. Importantly, the TRC remembered not only lawyers operating in the courts, but also those operating outside. It mentioned lay activists and advisors who helped communities most vulnerable to official excesses, such as the rural poor and workers, through advice offices and religious bodies. It also mentioned legal academics, who challenged their students to understand how law was related to justice, and to work to attain their ideals.

82. Consequently, the TRC concluded that what these people did to diminish suffering “substantially outweighed the admitted harm done by their participation in the system”.

83. Apartheid law was not hoax. It was a steely system of norms and rules that legitimised and enforced an iniquitous system of racial subordination and oppression. Although its typology is a matter of degree, it never ceased being “law”.

84. Precisely because of that, apartheid law offered enough room for lawyers like Bram Fischer to operate - lawyers who believed in the idea of justice, not oppression, under law; in dignity, not degradation, under law; and in material fulfilment, not deprivation, under law.

85. It was that idea that lawyers like Bram Fischer, Nelson Mandela, Oliver Tambo, George Bizos and Arthur Chaskalson nurtured and preserved, even in times of greatest oppression and despair.

86. The importance of this debate today is not only about memory. It is about the present. For to understand how Bram Fischer worked in conditions of imperfection, we need to understand our history. How he cleaved to the prospect of truth and justice and dignity and material re-ordering even when those seemed impossibly implausible.

87. Bram Fischer’s continuing work, in almost impossible conditions, is a rebuke to despair, a reprimand to cynicism, and a reproach to inaction.

88. For our society, despite the powerful liberation of democracy and a legitimate government, remains unjust and unequal. Even under the world’s most progressive Constitution, our legal system still operates in ways unsettlingly similar to under apartheid.

89. Access to justice and legal services remains beyond the grasp of the poor. The legal profession itself is still relatively poorly transformed.

90. Mass arrests of undocumented migrants, many of them asylum-seekers, are legally and technically different from pass law arrests, for a host of obvious reasons.

91. But how are they morally different? More alarmingly, we have seen xenophobic violence, resulting in extreme suffering, injury and displacement.

92. And do we call our present legal system a charade or a fiction because of these injustices? No, we do not. The point is not that our present system of law is, like apartheid law, illegitimate - but that even a legitimate system of law, grounded in popular will, like ours, can continue to license injustice.

93. To caricature the past risks giving us an unearned free pass into this present.

94. To appreciate how law can be brutal, and license brutality, is to understand how even under democracy, it can be suggested there has been no significant decline in the extent of police criminality, and how, in our constitutional state, “extensive police involvement in perpetrating serious and violent crimes continues”.[32]

95. Yet it is no option to dismiss the imperfect present. We have to engage with it, struggling, like Fischer, in conditions that are better, infinitely better, but that remain imperfect, to attain greater justice.

96. Bram Fischer believed in the utility of law to attaining social justice. He remained a devout believer in justice under law, even when conditions were bleak for its attainment.

97. And it was precisely Fischer’s and others’ commitment to the law, while dissenting from its application, that created the conditions for our present constitutional dispensation.

98. It was the tradition of brave dissent, combined with the belief in the virtue of law when not subordinated to the vicious ideology of apartheid, that left the legacy on which our constitutional principles are founded.

99. One of the legacies of Bram Fischer’s life is the continuing phenomenon of dissent within South African society - its brave, principled activists; and an alert, sceptical, uncowed citizenry. Its fertile off-spring are social movements, which hold the Constitution as key to a demand for a better life, through the law, and through hard fought-for political spaces.

100. And perhaps the most important legacy is that lawyers, now, can have recourse to courts that truly can attempt to dispense justice. That they do so imperfectly is not to license dismissing them - it is to call on us all to make them function better.

101. To misunderstand the role of the legal system under apartheid is to misunderstand not only our history - but our opportunities for growth and reform under the legal system today, so much more propitious than then.

102. Without Fischer, Mandela, Tambo, Chaskalson, Bizos and other public interest lawyers, there would have been no shred of virtue to save from the pernicious edifice of apartheid law. And without the popular resistance to injustice under apartheid, we would have no present guarantee against governmental tyranny.

103. That history deserves a respectful understanding, for in understanding it we are called to greater action in the present.

Bram Fischer - dissentient from within

104. Finally, Bram Fischer’s life illustrates the cost and importance of dissent - especially dissent from within. While his life had emblematic contradictions, and while he remained in important respects within the establishment, the principal feature of his life was his radical opposition to that establishment.

105. Nelson Mandela describes Bram Fischer as “a courageous man who followed the most difficult course any person could choose to follow. He challenged his own people because he felt that what they were doing was morally wrong. As an Afrikaner whose conscience forced him to reject his own heritage and be ostracised by his own people, he showed a level of courage and sacrifice that was in a class by itself.”

106. Many were convinced that Bram, had he chosen the path of Afrikaner nationalism, could have been Prime Minister or Chief Justice. [33]

107. Against this background, it is little less than astonishing that Bram Fischer rejected Afrikaner nationalism and renounced white supremacy, and that he threw himself into the struggle for a non-racial, democratic South Africa.

108. It is extraordinary that he embraced communism and the cause of African nationalism.

109. It is even more extraordinary that he did so while practising as a senior commercial lawyer, and continuing his daily life, raising a family with his beloved wife Molly, and spending time with his adored three children, Ruth and Ilse and Paul, in the heart of affluent Johannesburg.

110. For him, the rupture with Afrikaner orthodoxy and the break from the Afrikaner and legal establishment were not easy - they represented a hard-wrought, life-long feat of conscience and conviction.

111. Unlike millions of other Afrikaners, unlike most whites, unlike thousands of other lawyers, Bram Fischer forwent the bonds of race and tribe and loyalty and upbringing and association. Instead, he cast his lot with the oppressed and the dispossessed, and took up the struggle on their behalf. For that, he paid a grievous price; but it was a price he considered necessary.

112. We look back and admire Bram’s prescience and courage. Well, we should, shouldn’t we? His vision of non-racialism and democracy has been vindicated. The vindication of his courageous life should make us feel warm and good - not so?

113. No. It is too comfortable. Bram Fischer’s life shouldn’t comfort us. It challenges us. Specifically, it asks: what do his acts of courage suggest about our lives, and about our capacity for action?

114. There are two related questions. Most immediately: where are the dissenters from the present political establishment? Who are the scions of the new elite, of the political aristocracy? I do not recall a single member of the new political aristocracy speaking out on AIDS during the terrible years of denialism. That was left to brave journalists, to principled activists, to the Congress of South African Trade Unions, and the SA Council of Churches.

115. May we look to at least some of them to forgo the material interests and privilege of their class, and the temptations of power, for a principled stands on wealth accumulation, on corruption, on the break-down of independent institutions, on the disintegration of state-owned enterprises, on the lack of service delivery to many impoverished communities?

116. But, more broadly, we must ask those questions a second time: this time, we must, each of us, ask them of ourselves.

117. The advent of democracy has not cured our country’s ills. It has merely started a process that should, if properly managed and implemented, begin to cure them.

118. Today, South Africa manifests rampant inequality, dispossession, injustice and exclusion. The inequality is accentuated by the accession into the hugely affluent white elites of a growing affluent new black elite.

119. What is different is that we have a legitimate government, a legitimate legal system, and a legitimate Constitution.

120. But, just as under apartheid, state power and police violence are being used against poor people, protesting against their material conditions of life. Deaths in police custody may be up, not down, since the end of apartheid. Just as under apartheid, police vehicle roam the streets of Johannesburg, arresting black people for not being in possession of documentation.

121. Where are those from the inner halls of power, from the families of the famous, from the hierarchy of the elite, who speak out about violations of justice? Where are we?

122. Despite our momentous transition to legitimate power and legitimate law, in some significant respects our issues are not dissimilar from those Bram Fischer confronted - they concern the use and abuse of state power in defence of privilege.

123. Bram Fischer would have been deeply troubled by fracture in our society, by the dispossession, the accumulation of elite privileges, the fraying of democratic institutions.

124. So his life calls us to ask ourselves: have we exhausted our moral outrage? And have we employed our full array of constructive responses? Do we have figures of integrity and stature who employ enough principled, courageous, strategic dissent against injustice? [34]

125. Bram Fischer’s courageous life invites each of us to ask ourselves: what is the ambit and the power of my challenge to injustice? What is the issue of my dissent?

126. It is not good enough to look back in comfort. That backward glance, at Bram Fischer’s courageous stand for justice, should induce in us deep discomfort.

Conclusion

127. We must remember the circumstances in which Fischer fought for justice. It is possible for South Africans today to portray a bleak picture of our constitutional state. Institutions are in disarray, under attack, disintegration and decay and disorder.

128. But Fischer fought for justice under far worse conditions.

129. With a legitmate government and a fine legal system and Constitution, we have far more to believe in, and so much more within reach, than he did.

130. We, too, are all soiled by moral compromise, every one of us; our hands are grubby from our own indecision and greed and lack of purposeful commitment.

131. Yet that does not disable us from action. On the contrary, we have much to fight for, and far too much to lose. [35]

132. South Africa has the world’s most enlightened Constitution - one whose principles are practicable, whose vision is attainable. We have a functioning democracy, rooted in popular will, a credible judiciary.

133. Fischer’s life calls us to continue the tradition of purposeful commitment to social justice, through conscientious dissent under law.

134. We have the conditions for continuing our just transformation, for taking it far further. And we have the social restiveness, the constitutional apparatus, the principles and values to achieve it.

135. Bram Fischer’s legacy demands that we persist until we have done so.



[1] Mentioned at pages 71 and 86 of Clingman’s biography, though no acquaintance is suggested. Spender left Oxford in 1929, without taking a degree, just as Bram was awarded the Rhodes Scholarship.

[2] Stephen Spender, ‘World within World’ (St Martin’s Press, New York, 1994)

[3] Orange Free State and New College, 1931.

[4] Above n 2 at 46.

[5] Id at 49.

[6] Ibid.

[7] A Nigerian Rhodes Scholar who now lives in South Africa says that, despite revulsion at Rhodes, he accepted the Scholarship “to get a good education at a world-class institution. If an infamous robber baron’s money was paying for it, then at least a slice of the stolen treasure was returning to Africa.” See Mail & Guardian 26 July 2006, available at http://mg.co.za/article/2006-07-26-a-most-unsavoury-rehabilitation (accessed 18 May 2015).

[8] Above n 2 at 149: “Some of these associations made Molly feel rather uncomfortable (Bram’s rationalisation, she advised Percy and Ella, was that he would charge a lot), but he too was aware of the ironies: “[There is s]omething wrong about a communist making money like this”, he wrote to Ella in July 1940.”

[9] Id, 156.

[10] The most awkward and perhaps touching moment at the Wits Colloquium was when the chairman asked Fischer’s daughters, Ruth and Ilse, how he “married” his SACP membership with the Anglo retainer. Both seemed to search for an answer but had to confess to not having one.

[11] See para 21 above.

[12] In trying to oppose his striking off, he relied on the established principle in South African law that political offences, committed because of a belief in the overriding moral validity of a political principle do not of themselves justify disbarring a person from practising. See Bram Fischer’s letter to Harold Hanson, 4 February 1965. This is because the offences have no bearing on the integrity of the person in his or her professional capacity. It was indeed that principle that two brave judges of the Transvaal Supreme Court applied just nine years earlier, when they refused to grant the Law Society’s request that Nelson Mandela be struck off the roll of attorneys (Incorporated Law Society v Mandela 1954 (3) SA 102 (T)). They reasoned that his incitement of defiance to the law during the Defiance Campaign was for noble motives. Judge-President de Wet, sitting with two colleagues on a full bench, did not extend the same mercy to Fischer ( Society of Advocates of SA (Witwatersrand Division) v Fischer 1966 (1) SA 133 (T)). They found that Bram “made full use of his status as a senior counsel in inducing the magistrate to grant bail”, and that his “breach of his solemn assurance” to stand trial should be “stigmatised as dishonest conduct” (Page 136G-H, per De Wet JP, Hill and Boshoff JJ concurring).

[13] Bram’s decision is put in luminous perspective by Gilbert Marcus and Janet Kentridge, of the Johannesburg Bar, who later applied successfully for his posthumous restoration to the roll of advocates. See G Marcus and J Kentridge “The Striking Off of Abram Fischer QC” in GTS Eiselen and others, The Johannesburg Bar - 100 Years in Pursuit of Excellence (2***), pages *-**.

[14] See Joel Joffe, The State v. Nelson Mandela: The Trial That Changed South Africa.

[15] See Padraig O Malley, Shades of Difference: Mac Maharaj and the Struggle for South Africa, (Penguin, London, 2008 139. Arthur Goldreich and lawyer Harold Wolpe bought Liliesleaf Farm in Rivonia, Johannesburg, in 1961 as headquarters for the South African Communist Party which was forced underground by the apartheid state. See also ‘Arthur Goldreich’s profile on South African History Online Available at http://www.sahistory.org.za/people/arthur-goldreich. Accessed 12 June 2014.

[16] Above n 2 at 293.

[17] 4 February 1965, Bram’ Fischer’s letter to Harold Hanson.

[18] Bram Fischer’s Statement from the Dock of the Supreme Court, 28 March 1966

[19] Jacob Dlamini Askari- A Story of Collaboration and Betrayal in the Anti-Apartheid Struggle (Jacana Media, 2014) 14-15.

[20] Id 15.

[21] Id 79

[22] Id 14.

[23] Id 15.

[24] Id 79

[25] Id 86.

[26] Id at Chapter 9, 171-188.

[27] Founding Affidavit, Society of Advocates of SA v Fischer [1996] 1 All SA 346 (T).

[28] Bram Fischer’s letter to Harold Hanson, 4 February 1965.

[29] Above n 2 at 373.

[30] Clingman page 369ff.

[31] 1985/6 SALJ Raymond Wacks, Etienne Mureinik and John Dugard debate.

[32] See Broken Blue Line 2 - the involvement of the South African Police Service in serious and violent crime in South Africa (2015), available at http://irr.org.za/reports-and-publications/occasional-reports/files/broken-blue-line-2-february-2015.pdf (last accessed 13 June 2015). The report compares current levels of police criminality with its predecessor report in 2011 - I have in the text generalized the conclusion, which seems justified.

[33] Abraham Fischer, Bram’s grandfather, was a leader of the Afrikaner cause. At the time of the Anglo-Boer war he travelled across the United States and Europe to rally international support for the Boer combatants (Clingman, page 19). He returned, in 1904, shortly before the defeated Afrikaners got self-government. For when Britain’s Liberal Party came to power in a landslide victory in 1906, it granted autonomy to the two former Republics, and elections ensued for the white inhabitants. Grandfather Fischer, along with Generals Jan Smuts and Louis Botha, campaigned on a ticket of Afrikaner nationalism and reconciliation, and won. Just a few months before Bram’s birth, he became the first (and only) Prime Minister of the Orange River Colony (id). The United Kingdom Parliament in 1909 passed the South Africa Act. This created a Union of South Africa. The new country was built on white supremacy and racial domination (the poignant exception was the qualified franchise for black and coloured voters in the Cape, repealed, for black voters, in 1936, and for coloureds in 1956). In this new order, Bram’s grandfather became the Minister of Lands. In this capacity he helped enact one of the bedrock features of apartheid, the 1913 Land Act. This statute, Sol Plaatje said, meant that, with the stroke of the Governor-General’s pen, on 19 June 1913, “the black man woke up as a pariah in the land of his own birth” (S Molema, Lover of his people: Biography of Sol Plaatje (Jacana, Johannesburg, 2013); the quote is “On the 19th June 1913 the black man woke up as a pariah in the land of his own birth”).

The Fischer family thus played a profound part in the dispossession of Africans from the land, and in the destruction of their safety and security and prospective prosperity. The Fischers and the Afrikaners had overcome conquest of their lands by the British - only to become history’s perpetrators themselves. The legacy of Afrikaner nationalism found intensified expression in the career of Bram’s father, Percy Fischer, who was a prominent advocate. He supported Afrikaners who at the onset of World War 1 refused to take up arms with their British foes against the Germans in South West Africa. As a defence lawyer, he represented those arrested in the ill-fated rebellion. This caused his practice to suffer as his legal colleagues distanced themselves from him (Clingman, page 29).

Bram saw his father ostracised for solidarity with the Afrikaner rebels. He learned early that standing up for one’s principles and political beliefs in the face of the majority was necessary, but could be costly. Percy Fischer lost many briefs and experienced financial difficulty. His father’s dissenting courage resonated throughout Bram’s life.

Bram enrolled at the University of Cape Town. His life was charmed. He disported himself in the bosom of the elite. He frequented the house of former President Steyn of the Orange Free State, and spent weekends at the home of the Prime Minister, JBM Hertzog. That residence, Groote Schuur, Cecil John Rhodes left presciently to the leaders of a future united South Africa (Groote Schuur was the residence of South Africa’s Prime Ministers and then Presidents, but since 1994 Genadendal has been the official residence of the President when in office at Tuynhuys, Cape Town; see http://www.thepresidency.gov.za/pebble.asp?relid=199 (accessed 9 June 2015).)

Like his grandfather and father before him, “Bram was being nurtured in the bosom of the Afrikaner family in power, absorbing its inner most gestures and myths, with the expectation that he would in time reproduce them” (Clingman, page 48). After Oxford, while his career gathered momentum, his association with the elite continued as he took to professional collegiality. He enjoyed a life of rare and privileged social connections, sharing meals with Molly’s uncle, General Smuts, drinks with Oliver Schreiner, the renowned judge, tennis and golf at the Country Club (Clingman, page 100).

[34] At the Wits Colloquium on Fischer in May 2015, I was sitting next to Mr Max Sisulu, former Speaker of the House of Assembly - I pointed to him as someone who had taken a principled stand for truthfulness and fair process, and who according to some reports was in consequence removed as Speaker.

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