George Bizos says late former Chief Justice would never have been a secret member of a political party

Speech by George Bizos SC, Constitutional Litigation Unit, Legal Resources Centre, in honour of former Chief Justice Arthur Chaskalson, Johannesburg City Hall, December 5 2012

Arthur Chaskalson and I met in 1952.  We were students in the Law Faculty.  Unlike me he was not involved in student politics.  He was a brilliant student, a keen cricket player and an agile goalkeeper of the Wits Soccer Team.  I was serving my third term as a member of the SRC elected by the students of the Law Faculty.  We hardly knew one another.  An event occurred which made us lifelong friends.

The late forties and early fifties were turbulent times in the "open universities" particularly Wits, Cape Town, Natal, Fort Hare, and Roma in the then Basutoland.

The election victory of the National Party led to threats to close the doors of the "open universities" to non-white students.  The student leaders, some of whom had fought against the Germans and their allies, mobilised the non-racial student body to protest against the government and the university authorities' policy of "academic integration" and "social and sporting separation".

The Law Faculty held an Annual Dinner to which Judges, the Attorney General and Leaders of the Legal Profession were invited.  The SRC provided one hundred pounds to the Law Student Council for the dinner.

There were eight black students in the Faculty.  No black student had ever attended the dinner.  A number of us in the Faculty requested them to put their names down on the list.  The Dean of the Law Faculty, Professor Hahlo, decreed that they could not attend; it was to be held at a Hillbrow Hotel, their presence would be unlawful and the invited guests would be embarrassed.

I informed the Deans messenger that I would oppose the hundred pound grant and that my friends and supporters would not attend the Dinner.

Not all students agreed.  They called a meeting to vote for a motion of no confidence in me.  I said at the meeting that there was no provision for such a motion but if it was passed I would resign the day after the SRC resolved not to hand over the money.

Shortly before a vote was to be taken, Arthur Chaskalson put up his hand.  He said that we were posing the wrong question.  What was the policy of the government and the university authorities and how they were to be applied was not the issue.  He emphatically stated that the issue was "what is right and what is wrong."  It became his trade mark whenever difficult professional or moral issues arose. "Our fellow students had a right.  They should not be deprived of it". The motion was defeated.  The Dean reluctantly retreated.

Acting Judge President of the Transvaal Ramsbottom, far from being embarrassed, warmly greeted all of us and asked those whom the Dean would have excluded questions about themselves and their families.

At the Bar, Arthur became a member of the group in which there were a number of leading lawyers including Oscar Rathouse, Harold Hanson, George Coleman, Sydney Kentridge, Rex Welsh and, of course, Bram Fischer.  Arthur was a member of the Bar Council and eventually its Chairperson.

Bram regarded Arthur as a genius and prophesized that he was going to follow in the footsteps of Isie Maisels, the giant of the legal profession that was then the leader of the defence team in the Treason Trial, in which President Mandela was one of the accused.  Bram's view was well founded. 

Bram asked Arthur and me to join the team that he was going to lead when the leaders of the struggle were arrested in July 1963 at Rivonia.  My activism as a student led to my having been briefed in numerous political trials and I was known to the accused including, President Mandela who, together with Oliver Tambo, habitually briefed me.

My friendship with Arthur during the Rivonia Trial became a close one.  Together with Vernon Berange and Joel Joffe we admired the courage of all those in the dock for their love of freedom, their dedication to the struggle, and their declaration that they were prepared, if needs be, to die for the fulfilment of democracy.

The campaign of the apartheid regime to discredit them by calling those in the dock and some of us who defended them terrorists and communists did not deter us from defending them and many others after them.  We were not apologetic for the acts of our clients nor their objectives.   We did not necessarily agree with their objectives nor the methods used to achieve them.

For professional reasons, Arthur and I did not join any political organisations.  Arthur was always anxious not be in breach of any professional rule.  His was mindful of the Bar Rule that one should not represent in court an organisation or member of an organisation of which you are also a member.  He and I were founding members of Lawyers for Human Rights and the Centre for Applied Legal Studies.  He persuaded me to join him in the Legal Resources Centre in 1990.

Arthur was a democrat.    There were no secrets between Arthur and me.  I know that Arthur was not a member of any political party.  He would not join any organisation that would place any impediment to his absolute independence. 

Today as we pay tribute to him, organisations that wish to recognise the valuable role he played in relation to their work, cannot lay claim to things that Arthur is no longer in a position to refute.  Arthur represented activists from the PAC, BCM, ARM, ANC and the SACP, as well as those from the UDF and NUSAS who held any one of a range of views - often without clear affiliation.  He had high regard for the courage and principle that underpinned such involvement in the struggle against oppression. 

However, save for a brief period more than 50 years ago when he was a member of the Liberal Party, Arthur himself did not join any political party as he believed it would not be in the interests of the professional support that he could offer.  It is not only incorrect to suggest that Arthur was secretly a member of a political party; it is also quite unacceptable  to impugn his integrity by suggesting that he would be willing to keep any affiliation of his own hidden and not open to public scrutiny.

The issue is that Arthur was meticulous about fact - it is not a question of ideology but one of setting the record straight.  The time is not appropriate to debate the controversy that has been raised.

In 1990, Cyril Ramaphosa told me that the ANC National Executive had confirmed Arthur's and my membership of the Constitutional Committee of the ANC.  I asked him if that meant we would get an ANC Card.  He said that they did not need our R12.  I asked what would we have to do? He said "Everything" "Everything" I asked.  "I will try to get you an exemption from toyi-toying" said Cyril.  We never toyi-toyed.

President Nelson Mandela held Arthur Chaskalson in high esteem.  He wanted Arthur Chaskalson to become the President of the Constitutional Court.  In terms of the Constitution, he had to consult the leaders of the parties in Parliament on whom to appoint.  He asked Vice President De Klerk of the Unity Government in his capacity as leader of the National Party for his view.  De Klerk said that he would have to consult his party, particularly the lawyers.  He came back and said to the President: "Although Chaskalson comes from your stable no one has any objection to your proposal".

It was important for the unity of the Judiciary that the President of the Constitutional Court should be respected not only by all the Judges appointed prior to 1994 but also by the Constitutional Court Justices that would be appointed.  The co-operation of Chief Justice Michael Corbert (whose term was extended by President Mandela) and President of the Constitutional Court Arthur Chaskalson enabled the successful transition to take place.

Arthur was Vice Chairman and later Chairman of the Judicial Service Commission, on which I served for 15 years.  He played an important role in the transformation of the judiciary.

Others have spoken and, will continue to do so, about his legacy.  We thank President Zuma and his government for honouring the memory of our friend, Arthur Chaskalson.

Issued by the LRC, December 5 2012