Legal History of South Africa - Part 3

The stories worth telling…

In Part II we spoke about Sir Sydney Kentridge, an accomplished lawyer who has been recognised around the world for his contributions to human rights and equality. He valiantly stood against apartheid and started the Legal Resource Centre. His contributions have continued to be felt many, many years later. And that is putting it all mildly. The legal profession is richer for having him as a member. 

We remembered the legendary George Bizos with the famous lines “if needs be.” Sending shivers down our collective spines. A master, a giant of law. How can we truly express our admiration for a man of his kind? The world is so much richer for having had him in it. 

Our journey continues and sadly ends as we look at Justice Arthur Chaskalson, Justice Edwin Cameron, Mandela, Israel ‘Isie” Maisel, Ruth Hayman and former Chief Justice Pious Langa. 

For the last time, this article is certainly not a short read – we admit – but we promise you it will be a worthwhile one.

Because these are the stories worth telling…. 

Justice Arthur Chaskalson

Justice Chaskalson was born to an orthodox Jewish family on 24 November 1931 in Johannesburg. Chaskalson came from a very modest background – his father who was a Lithuanian immigrant, died when he was only 5. But despite this as well as his family’s unfortunate financial troubles, his mother who believed in the value of a proper education, managed to send him to two elite private schools – Pridwin and Hilton.

Justice Chaskalson went on to graduate from Wits in 1952 with a B. Com and later a LLB cum laude in 1954. He was later admitted to the Johannesburg Bar (in May 1956) and took silk in July 1971 (making him a senior counsel). During his career at the Bar he appeared as counsel on behalf of members of the liberation movements in several major political trials between 1960 and 1994, including the Rivonia Trial together with Bram Fischer and George Bizos.  

During 1975 to 1983, he was the leading counsel in the Komani and Rikhotso cases. Those cases successfully challenged the legality of a type of “influx control” legislation, which forced South Africa’s black citizens to carry passes and to live in artificial, rural areas called Bantustans, the so-called “Bantu Urban Areas Act”. The Komani and Rikhotso cases were instrumental in crippling the government’s ability to enforce these controls.

In 1978 together with Sir Sydney Kentridge, Justice Chaskalson helped establish the Legal Resources Centre. He served as director for the LRC from November 1978 until September 1993. During that time, he was leading counsel in several cases in which successful challenges were launched by the LRC against the implementation of apartheid laws.

Justice Chaskalson was recognized as an expert in constitutional law, standing as a consultant to the Namibian Constituent Assembly. He was a member of the Technical Committee on Constitutional Issues in South Africa, and a consultant to the Multiparty Negotiating Forum. He was a consultant to the ANC during the constitutional negotiations, and a member of the Multiparty Negotiating Forum’s Technical Committee on Constitutional Issues. In that capacity he participated in drafting an interim Constitution.

Justice Chaskalson was appointed by President Nelson Mandela in June 1994 to be the first President of South Africa’s new Constitutional Court and was Chief Justice of South Africa from November 2001 until his retirement in 2005. On his retirement he was described by President Mbeki as a 

“Giant among the architects of our democracy.”

Justice Chaskalson was also a member of the Board of the Faculty of Law of Wits from 1979 to 1999, an Honorary Professor of Law at Wits from 1981 to 1995, a member of its board for the Centre for Applied Legal Studies (CALS) from 1979 to 1994, a member of the National Council of Lawyers for Human Rights from 1980 to 1991, Vice Chairman of the International Legal Aid Division of the International Bar Association from 1983 to 1993 and Chairman of the Rhodes Scholarship Selection Committee for South Africa from 1988 to 1993.

In 1990 he received the Human Rights Award of the Foundation for Freedom and Human Rights in Berne, Switzerland. He also received awards for his human rights work from the South African Jewish Board of Deputies and the General Council of the Bar of South Africa.

To top all of that off, Justice Chaskalson was also a member of the Judicial Service Commission from 1994 until 2005, and its chairperson from 21 November 2001 until his retirement on 31 May 2005. He was elected as an honorary member of the Bar Association of the City of New York in 1985, of the Boston Bar Association in 1991, and of the Johannesburg Bar in 2002. He was a visiting professor at Columbia University in New York from 1987 to 1988, and again in 2004, and was a Distinguished Global Fellow at the New York University School of Law.

He was the President of the International Commission of Jurists from 2004 to 2008, was the Chairperson of a committee of senior judges appointed by the United Nations Environmental Programme to promote and develop judicial education on environmental law in all parts of the world, was the first chairperson of the Southern African Judges Commission, an association of the Chief Justices of Southern Africa, and chaired the Eminent Jurists Panel appointed by the International Commission of Jurists to enquire into the impact of terrorism and counter-terrorism on the rule of law, human rights law, and where relevant, international humanitarian law.

In December 2002, Justice Chaskalson received the award of Supreme Counsellor of the Order of the Baobab Gold (for excellent service), a national honour, for his service to the nation in respect of constitutionalism, human rights and democracy.

Justice Chaskalson’s incredible career came to an end when he passed away on 1 December 2012 after a struggle with leukaemia. He was 81.

“A life dedicated to justice for all” – Stephen Ellman on Justice Arthur Chaskalson.

(Sources used and to whom we owe thanks: Constitutional Court of South Africa; The Presidency; South African History Online; African American Registry; Ground Up; The General Bar Council of South Africa).

Justice Edwin Cameron

From growing up in an orphanage to being a recognised fighter for human rights – one of South Africa’s “new heroes”

Edwin Cameron was born on 15 February 1953 in Pretoria. 

In the first chapter of his memoir Justice: A Personal Account, he sets out how his father, an alcoholic, was convicted of car theft and sent to Zonderwater prison. Cameron was 8 at the time. To add to his early year’s predicament, his mother – down on her luck – did not have the financial means to support him and his two sisters, Laura and Jeanie. As a sad consequence, Cameron spent most of his childhood in an orphanage in Queenstown.

Seemingly, Cameron’s early years were thwart with tragedy. And this sentiment is solidified in the fact that in 1962 when he was only 9, his sister Laura was knocked over by a delivery van in Pretoria and killed – a senseless, devastating accident. His father attended the funeral (accompanied by 2 prison guards). It was at the funeral when Cameron spoke to his father who had expressed confusion as to why he had been incarcerated that Cameron had his first encounter with the law. As set out by New Frame

“That first encounter with the law, as it held my father captive to exact accountability for a wrong he had committed against society, left in me a deep layering of thought and emotion. What was the law? In what lay its power? Was it only an instrument of rebuke and correction and subjection? Or could it be more?”  

Cameron was already showing an aptitude for independent thought and an inclination into how the legal system operated. And he wanted to aid in its betterment.

It therefore comes as no surprise that despite living in poverty, he completed his schooling at Pretoria High School (by means of financial assistance) and went on to attend Stellenbosch University with the help of the Anglo-American Open Scholarship Award where he acquired a BA Law degree, and an Honours degree in Latin – both cum laude.

Cameron lectured in Latin and Classical Studies at Stellenbosch University before he left for Oxford in 1976, on a coveted Rhodes scholarship (much like Bram Fischer). At Oxford, he obtained a BA in Jurisprudence and a Bachelor of Civil Law degree (earning first class honours) and the Vinerian Scholarship (the most prestigious law scholarship issued by Oxford University). Cameron later graduated with an LLB degree cum laude from the University of South Africa (Unisa) in 1978. He earned the Johannes Voet Medal for Best Law Graduate for his incredible efforts. 

Cameron practised at the Johannesburg Bar from 1983 to 1994. Simultaneously from 1986 he was a human rights lawyer based at the Wits Centre for Applied Legal Studies (CALS), where he was awarded a professorship in law (in 1989). 

Cameron’s practice was mainly concerned with labour and employment law, and therefore Cameron defended ANC activists who had been charged with treason. He also took on cases of conscientious and religious objection, land tenure and forced removals. One of Cameron’s most notable legal pursuits is in gay and lesbian equality as well as his work on legal insight into HIV/AIDS. 

From 1988 he advised the National Union of Mineworkers on HIV/AIDS and helped to draft and negotiate the first comprehensive AIDS agreement with the Chamber of Mines.

While at CALS, he drafted the Charter of Rights on HIV/AIDS and co-founded the AIDS Consortium (a human rights organisation committed to openness about HIV/AIDS and non-discrimination on the basis of HIV/AIDS). He chaired this association for the first 3 years of its existence and became the first director of the AIDS Law Project.

Cameron was also instrumental in the gay and lesbian movement’s submissions to the Kempton Park negotiating process, during the course of which he gave his inaugural lecture at Wits, entitled “Sexual Orientation and the Constitution: A Test Case for Human Rights”. This lecture, along with other work, was influential in securing the inclusion of sexual orientation in the South African Constitution.

His influence in this respect is huge and undoubtedly paved the way for the LGBTQIA+ community within South Africa, which has one of the most inclusive and democratic laws in this respect in the world.

In September 1994, he was awarded silk (senior counsel status). In October 1994, he was appointed Acting judge of the High Court and chair of a Commission to investigate illegal arms transactions by Mandela. In 1999/2000 he served for a year as an Acting Justice at the Constitutional Court. In 2000 he was appointed a Judge of Appeal in the Supreme Court of Appeal. In 2008 he was appointed as a Justice of the Constitutional Court.

On an international scale, Cameron has been a keynote speaker at the XII International Conference on HIV/AIDS in Durban, and was invited to deliver an inaugural lecture for the British Academy in the United Kingdom.

He made headlines in 1999 when he announced he had been living with HIV for 12 years as one of the first high-profile people to publicly disclose his status. Because of this – as an HIV/AIDS and gay rights activist – Cameron was an outspoken critic of then-President Thabo Mbeki’s Aids-denialist policies. 

As result and in 2005, Cameron wrote a prize-winning memoir, Witness to AIDS, about his own experience of surviving AIDS, which won the prestigious Sunday Times Alan Paton Award.

His second book – a memoir (mentioned in the opening paragraph) – Justice: A Personal Account, was published in 2014 and went on to win the 2015 South African Literary Award (SALA) for creative non-fiction.

Cameron was the first, and remains the only, senior official in Africa to state publicly that he is living with HIV/AIDS, for which Mandela once referred to him as 

“One of South Africa’s new heroes.”

Cameron has received numerous honours for his legal and human rights work, including a special award by the Bar of England and Wales in 2002 for his “contribution to international jurisprudence and the protection of human rights.” He is an honorary fellow of the Society for Advanced Legal Studies, London, and of Keble College (in 2003). In 2008, Cameron also received an honourary bencher of the Honourable Society of the Middle Temple. He holds honourary doctorates in law from King’s College London (2008), Wits (2009), Oxford University (2011), the University of St. Andrews (2012), Stellenbosch (2015), and Sussex (2016).

In 2019, while recently retired, Cameron was appointed by President Ramaphosa as the new inspecting judge of the Judicial Inspectorate for Correctional Services – which is the Chapter 9 institution tasked with protecting prisoners’ rights.  The term was set for 3 years. 

Stellenbosch University has this to say about Cameron – 

“Justice Edwin Cameron is widely recognised for his brilliance and his commitment to human rights and social justice and is considered one of South Africa’s most prominent and distinguished judicial figures”.

(Sources used and to whom we owe thanks: United Nations; the Constitutional Court of South Africa, the Pozen Family Centre for Human Rights, The Daily Maverick and New Frame).

Nelson Mandela

We would be remis if we did not include Mandela in this illustrious list of South Africa’s very own legal heroes. After all, Mandela did have legal degrees amongst his many other accomplishments (that seems like a ‘downplay‘of his importance, but how do we really express our admiration for the father of our democracy?). 

Mandela began his studies at the University College of Fort Hare where he sought to attain a Bachelor of Arts degree. However, he was unable to complete this degree as he was expelled for joining in a student protest.

In 1941, while working as a mine security officer and after meeting Walter Sisulu, Mandela was introduced to Lazer Sidelsky – a white-Jewish South African lawyer and activist. He was invited to do his articles through Sidelsky’s firm of attorneys – Witkin, Eidelman and Sidelsky – a firm of attorneys that “pioneered the employment of black people, enabling them to be articled and qualify as attorneys, in defiance of practice at the time”.

He completed his BA through UNISA and went back to Fort Hare for his graduation in 1943.

Meanwhile, he began studying for an LLB at Wits where he met the likes of Bizos and Chaskalson. By his own admission he was a poor student and left the university in 1952 without graduating. He only started studying again through the University of London after his imprisonment in 1962. Unfortunately, he was not able to complete that degree either.

In 1989, while in the last months of his imprisonment, he obtained an LLB degree through UNISA, graduating in absentia at a ceremony in Cape Town. Finally fulfilling a lifelong ambition and dream. 

It would seem that Tambo and Mandela only realised their desire for freedom, human rights, and equality 40 years after incorporating Mandela & Tambo all those years ago.

We could write pages and pages of admiration and rhetoric on the late great Mandela. But we fear we just wouldn’t do this icon justice. The entire nation – nay the world – knows of his brilliance, his humanity, his wisdom. 

We all have him to thank – ultimately – for our rainbow nation, for peace, for equality – something the world is still working on today, always learning from his example and his teachings. And it is to him, many of us will always be indebted. 

(Sources we used and to whom we owe thanks: the Nelson Mandela Foundation).

We cannot end our journey here, for there are still some instrumental lawyers that deserve recognition. They include – 

Advocate Israel “Isie” Aaron Maisels (1905 – 1994) “was a judge of the High Court of Rhodesia and the Judge President of Botswana, Lesotho, and Swaziland. He practised law in South Africa from 1928 until his retirement in 1992 and was widely regarded as “pre-eminent among his generation of advocates” and “one of the country’s most formidable legal minds.” In addition to a legal practice, he is best known for his defence of those prosecuted for their political beliefs and “as a man whose life and interests reflected a deep concern for human rights and civil liberty.” He was the leader of the defence team in the famous South African Treason Trial of 1956 to 1961 in which the accused, were all acquitted as well as numerous other cases in which he represented individuals adversely affected by the apartheid government’s oppressive legislation. He served on the bench of the High Court of Southern Rhodesia from May 1961 to June 1963.”

Ruth Hayman Lazar (1913 – 1981) was a lawyer and anti-apartheid campaigner. She was one of the first women in South Africa to qualify as an attorney. Through the Black Sash organisation, Hayman offered free legal advice to many people, usually women, who had approached the Black Sash Advice Centre in Johannesburg, and often appeared herself in court to represent them. She also defended the anti-apartheid activists Walter and Adelaine Hain, parents of the British Cabinet Minister Peter Hain (Wikipedia). 

And last but certainly not least – 

Former Chief Justice Pius Langa ( 1938 – 2013) – “When the Constitutional Court of South Africa was established with the advent of a post-apartheid constitutional and democratic era in 1994, Justice Langa was appointed together with ten others as the first judges of the new Court. He became its Deputy President in August 1997 and in November 2001 assumed the position of Deputy Chief Justice of South Africa. He was appointed the country’s Chief Justice and head of the Constitutional Court with effect from June 2005 and served until his retirement in October 2009. As Chief Justice he chaired the Judicial Service Commission and the Southern African Judges Commission, a forum of regional chief justices. He was also a member of the Permanent Court of Arbitration.”

Mention must also be made of some of the – then clandestine – movements like The Black Sash which fought in parallel to these legal giants. Something this writer is extremely proud of, considering her grandmother (and many of her friends) were fervent members of. We thank these brave women for their continued efforts, even today. 

Looking back on this series, it brings a tear to our eyes and a lump in our throat. While we only serve the legal profession, we can say hand on heart and with absolute certainty that there is just so much to be proud of where the legal profession in South Africa is concerned. And yes – there is so much to be thankful and grateful for. 

We have a rich legal history whose members fought on the right side of law, human rights and history. 

May their work and their lifetime achievements remain as beacons for all of those within the legal profession – especially during dark days – let these stalwarts, these legends, these icons be your light. 

AJS wants to express our utmost gratitude to all the lawyers, the advocates and the legal professionals in South Africa – thank you from the bottom of our blue hearts – for all you do!

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