Interview with Rupert Taylor and Aubrey Lekwane
Legal Resources Centre, Johannesburg
16 February 1998, 9.30am-12.15pm
Bizos: I see you’ve got Steve’s book there (Taylor has a copy of Ellman’s book In a Time of Trouble).
Taylor: Yeah, and also this one... (Clingman’s biography on Bram Fischer).
Bizos: Bram Fischer. Have you read it?
Taylor: I’ve dipped into it, I haven’t had time to read it - I only picked it up on Thursday. I was also going to bring Rick Abel’s book (Politics by Other Means), but I couldn’t carry it… What we are really trying to do is to look at the contribution and the impact of a whole range of anti-apartheid non-governmental organizations, who have been active in South Africa, particularly since 1976. And we’re quite keen to draw this out, because we feel that really there’s an untold story of the transition, you know you pick up a journalistic account, you pick up a kind of popular book on South Africa, and it’s either ‘the miracle’ or elite pacting and there’s no sense of what really happened on the ground, there’s no real sense of the forces for progressive change within the country, and in particular within the kind of organizational network that we’ve identified. We feel that there is an important story to tell here, because it actually only makes understandable how one moves from a racially divided society to a non-racial society. So we are very interested in drawing out the impact and the role of various NGO’s; LRC (Legal Resources Center) being one of them. So that is the broader context of our study.
Our interview schedule which we have been using with quite a few people now, is quite general. It asks, it begins by asking questions about what you see or what you saw the conflict as being, how you saw the notion of peace, and then asking you some questions around the impact of these organizations; how they contributed to change, what ways you feel they made an impact, did they influence certain events, and how crucial a role did they play? What would have happened if they hadn’t been there, for example?
So those are some of the questions. And Aubrey and I will kind of go back and forward. And our first question is really quite a broad one, and it is: who in your view was the conflict between in South Africa between 1976 and 1990, how did you view the conflict, did you see it in terms of race or class, or how would you characterize the conflict?
Bizos: I find it difficult to place labels on activities or individuals. There was obviously overlapping, because, the - I don’t think you can separate race and class in South Africa as easily as you might be able to do in other places because, blacks generally speaking hardly had any upward mobility. Except, I have to speak within the parameters of 1976 to date, that there was an attempt to co-opt people into the system, in the bantustans with the idea of parallel development. And people sprung up as councilors and owners of liquor stores and supermarkets and bus companies, within their own areas.
But as a whole, and I think quite unwittingly, the Nationalists may have assisted in the struggle, by pushing everyone, or practically everyone into the same, this camp of disadvantage, and you actually had quite a cohesive force of unlettered, starting with unlettered peasants, who academics if they were black they tended to be on the same side, seeking liberation, sometimes by different means, but with the same objective in mind.
Taylor: So you would argue that it was more than simply a racial conflict?
Bizos: Yes, I do believe, I do believe that in South Africa it was not a racial conflict, because there were - all be it a small number of people - which straddled across race, both black and white. There were.
Bizos: I do not believe that black consciousness was placed on the map in 1976. I think that the small group that went to Whitehall in 1909, to prevent the adoption of the South African Act, was an expression of black consciousness. I think that Sol Plaatjie was a wonderful example of black consciousness. I think that the Govan Mbeki’s of the 30’s was an expression of black consciousness, and the youth league has an importance in the early 50s.
Taylor: So where do you see the influence for non-racialism coming from? Do you see that as being a later development, or do you see that as gaining ground in the 1980s perhaps, or..?
Bizos: Non-racialism, non-racialism was, I think, at a very low level. I remember Govan Mbeki telling me, whilst he was a student at Fort Hare, it was such a novel situation that Eddie Roux came and pitched his tent in the veldt, outside the university grounds. And they as students were amazed at this was happening, and they started visiting him in the tent.
Bizos: And there was a realization that there was at least one white who actually spoke to them on equal terms, and eat there with them, the humble dish of food that was prepared. The exposure, of course, to white missionaries and the missionary work of the churches, although there may be a tendency to be suspicious of missionaries motives, I don’t believe that they should be written off, as having contributed to non-racialism. The Communists and the liberals, I think, played an important role.
Taylor: How conscious have you been in your political trial work, how conscious have you been of the theme of non-racialism, the reality of non-racialism? Or has it really taken second place to African Nationalism?
Bizos: Most of the people that I have defended were in the ANC camp, and they were strongly of the view - well they took the opening words of the Freedom Charter both literally and to heart. And they almost, well they were rude, because of the late-50s ANC/Pan-Africanist debate, they were quite aggressive in, the ANC people were quite aggressive in advocating non-racialism, and of course, it goes back earlier to the 40s with the miners strike, where whites were involved with Bram Fischer of course; you would have read about this, his part. And I think that the turning-point, in retrospect, must be seen as the conversion of the radical youth leaguers of the late 40s and early 50s to non-racialism.
Lekwane: You referred to attempts at co-option, by the apartheid system, do you see the existence of, or proliferation of NGO’s, again between 1976 to current era, as attempts at co-option? or do you see these organizations coming in, really at that time, to fight and to help promote human rights? Or it was really a system’s broad approach at co-option and therefore tolerating the existence of this kind of…
Bizos: Well I can’t speak of, I can’t speak of all in relation to all NGO’s. I can speak about Lawyers for Human Rights, for which I was on the founding, a founder member and on the council. I would have been surprised if anyone seriously suggested that that was an attempt at co-option. And I think that it would be a positive insult for anyone to suggest that the Legal Resources Centre, started by Arthur Chaskalson, Geoff Budlender, Sydney and Felicia Kentridge, were attempts at co-option. There may have been other NGO’s, but I am not familiar with their work and so on. I don’t know whether, for instance, the NGO’s such as the Black Sash, here would be, anyone can seriously suggest that there was a possibility of doing their work for the purposes of co-option.
Taylor: Mind you - when they - We interviewed Sheena Duncan the other week, and she made the point that when the Advice Offices were established in the 50s, the Liberal Party objected on the grounds that it would be doing the National Party’s government work too much for them, it would be working too much with, with government, with the system. There was that objection by the Liberal Party at the time, but I agree with you that, your general sentiment is I think is true. But it’s interesting to note that at that time there was opposition to, well there was this criticism of the Black Sash from within the Liberal Party, again involved in that kind of work.
Bizos: Well, I don’t know who was in charge of formulating the policy of the Liberal Party on a practical level at that time - and it may have been a view held by one or two individuals, because, you see I think that the fundamental difference is, whether whites were striving for the liberation of the African majority, or whether they were merely trying to alleviate temporary disabilities without attacking the system as a whole. To take the LRC; it’s work is well documented, its attack on the urban areas legislation was not directed at perpetuating apartheid, but rather at breaking it down.
Taylor: What do you see as the major contributions of LRC and other legal orientated, law orientated NGO’s being? I mean you mentioned on urban… on the pass laws…
Taylor: On the Rikhoto case.
Taylor: Are there other cases that you would highlight?
Bizos: I would highlight for instance, subsequent to that (phone-call interruption) …You know the LRC cases were meant, the - some of the work done by the Lawyers for Human Rights was very significant, I believe - but if you take an organization like Actstop, that really made it impossible for the apartheid state to prosecute people under the…
Lekwane: Group Areas.
Bizos: …Group Areas Act. I mean my name was on a list to defend people after the Goldstone judgement in the Govender case. I never got into court, because when the attorney announced that I would be appearing for the accused, the case was withdrawn. But there were numerous other cases, which were put down, and other people that actually appeared as a result of the concerted effort, to which the Legal Resources Centre at the time was hardly a menace at the bar.
Taylor: So it makes sense to see the Legal Resources Centre really as part of an anti-apartheid NGO network.
Taylor: And as part of that network, that’s really where it had an impact.
Bizos: An impact - yes. Because I think that the LRC had something like 80 advice offices throughout the country, who could turn to the LRC for advice and this is how the cases originated, we didn’t go out looking for the cases, people throughout the country, through NGO’s over which we had no control, we did not finance them, we did not, we did not take part in their organizational structures, but they knew that if they had a problem that they could turn to us for advice.
Taylor: Like the Rikhoto case - wasn’t it the Black Sash that brought it to you?
Bizos: Yes, you see they would recognize the problem, they would recognize the case and they would come to Geoff Budlender, I wasn’t here at the time. Geoff Budlender, Arthur Chaskalson and they would choose the case, they would be guided, and then the law would take its course.
Taylor: And what would have happened if the LRC hadn’t been there?
Bizos: Well unhappily I don’t think that, although there were a number of legal practitioners whose heart was in the right place, I do not think that they had the facilities, nor the legal expertise in order to do important test cases. Arthur Chaskalson is probably, if not the top one, one of the three top lawyers of our generation, and to have him putting up a case - and very often, you see, not choosing your case correctly and not presenting it correctly can put you back, in years. But to choose the right case, to argue it properly, I think really played an important role.
By saying this I don’t want to, I don’t want it suggested that the lawyers played a prominent role in the liberation struggle; but I do believe that in matters of urban areas and in matters of group areas and similar matters, they did play a significant role.
Taylor: How many lawyers are we talking about here? would you say.
Bizos: What years are we talking about?
Taylor: If we look 76 to 1990.
Bizos: I think that throughout the country, you would be hard put to go above three figures (i.e. less than a hundred).
Taylor: Wow. But would you argue that over time the numbers increased? in the 80s..?
Bizos: Yes, the numbers increased, the numbers increased particularly in relation to political trials, because from the years, from the early 80s to the 90s quite a lot of money was made available to, for political trial work - and the number increased.
Taylor: And what would you say the overriding motive of these lawyers has been? Has it...
Bizos: I would say that the overriding, with very rare exceptions, the overriding motive was that they wanted to identify themselves with the application of the rule of law, with democracy and the liberation of the people of South Africa.
Taylor: But would you argue that they were activists or not?
Bizos: It depends how you define ‘activists’. If you define an activist as a person who involves himself in political activity, it’s again how do you define ‘political activity’, because sometimes in this situation that we had in 1976, in Soweto, when Ismail Mohamed and I went in to defend 159 people that marched into Johannesburg, in order to prove that if you marched in Johannesburg you were not gassed and you were not shot at, but if you marched to Soweto you got a good dose of both. Now here were 159 people charged in a court in Protea, with Colonel Swanepoel and a few hundred sten-gun, who would have been, policemen… a barrier around the courtroom, not allowing, not allowing the principle - the parents or relatives of the people to see their sons, and I remember wanting to break the police cordon to go into the, into the throng of about 1,500 people in the courtyard and being told that I was going into this yard at my own risk and strongly advised not to go.
Bizos: And my telling him, my telling him ‘Thank you, but I have nothing to fear’. And I actually went and I spoke to somebody who was, who appeared to be adopting a leadership role, for him to translate, to translate to the people that had come there what we as lawyers were trying to do; that we were going to make an application for bail, and they must be patient, and we’ll see how do they… Now that, by the police would be regarded as, as, they wouldn’t call it activist, they would call it communist behaviour.
Bizos: But, you know, from within my terms of reference, within my terms of reference I was not doing anything more than a lawyer would under those circumstances be obliged to do in order to properly communicate the…
Taylor: Yeah. Now I see in this book here (Bram Fischer) that you refer to yourself as a ‘democrat’.
Bizos: Oh, is that what I say?
Taylor: Umm, here we are, here we are, it’s Clingman saying ‘you’ve taken on more political trials than virtually anyone else, and his reason for doing so, he indicated later, was simply that he was a democrat’.
Taylor: But you also accept the label liberal, or not?
Bizos: You know whenever I have trouble with words, I go to the Greek. Liberal in Greek is Philolefterous, a lover of liberty, and within that definition, yes I am a liberal - a lover of liberty, this is what a liberal means, a lover of liberty.
Taylor: Yes, that’s very good, but in the context of South African definitions?
Bizos: In the context of a South African definition, if by a liberal it means a small group of people that formed the Liberal Party, who have a checkered history, I would not have called myself a liberal in the 1940s or 1950s, because they believed in a qualified…
Taylor: …franchise. Mmm.
Bizos: …franchise. I couldn’t do that. The liberal opposition to the sanctions campaign, I would not identify with, but that doesn’t mean that I am not a liberal in the true sense of the word as a lover of liberty. I mean I refuse to allow people to appropriate the word ‘liberal’ to the policies of a small group of South Africans.
Taylor: And your view of Communism?
Bizos: I have an ambivalent view in relation to Communism; I am against any form of dictatorship, including the dictatorship of the proletariat. Dictatorship is dictatorship. I certainly, I am against, always been against the Soviet-type of Communism, because I think they too have appropriated the, have appropriated the word, the words as an exclusive thing for themselves. But if I were to put a label on myself, I would call myself a social democrat without any, without any, without much difficulty. But I have a problem with that as well. I strongly believe that any adjective added to the word democracy, generally speaking, insults it. Just democracy, you know, with all its difficulties, that’s what I...
Lekwane: George, how would you define the nature of the conflict in South Africa, would you call it a war, for example?
Bizos: Again it’s a matter of definition. In the 50s, the book The Savage War of Peace in relation to Algeria…
Taylor: Algeria, yeah.
Bizos: …certainly I think influenced me and other read people, thinking like myself, that was a war. That was a war. I believe that we - Umkhonto we Sizwe limitation to the use of violence, firstly that it should be directed politically by the broad, the policies of the broad liberation movement, lets say the ANC at the time, for practical reasons, the attacking of symbols of apartheid and not attacking the civilian population, and regretting the inevitable injury to the softer targets, and taking steps when their cadres attacked the soft targets, to stop them. I think that, that it was not war in the Algerian sense, and certainly it was not a racial war.
It would have been so easy for indiscriminate violence to be used in South Africa, but it wasn’t, and that’s why we have avoided a race war, I think. If you define war in another way, in a commitment to bring about fundamental change and using selective violence then in that sense it was a war.
Lekwane: I mean the SADF were there, I mean, you know and one actually wonders how they conceived of their role; because you know they launched military attacks, especially in Angola, I mean in all of the Frontline States, I mean…
Bizos: Yes, well you see, significantly, significantly the anti-conscription campaign case, you’ve got that case in the Cape Provincial division, the Soleckovitz (sp.?) judgement, they, and also the documents produced in the Goniwe inquest, relying on the McCuen booklet there and other military authorities.
The war and the total onslaught was their chosen terminology. But the ANC and PAC, let me confine myself to the dominant, the ANC spoke of war, but they meant something else. And I think that the judgment of Soleckovitz really makes the difference. Yes, there was war on the Angolan border by, on the generally accepted definition of the word, but this didn’t entitle you, this didn’t entitle you to behave as if there was a war on in Cape Town. And I think that that is the, those are the parameters in which we have to look at the situation.
The government would have preferred a sort of war psychosis to be accepted, because they had their arms and they had the facilities, and they thought that they would actually win that. I had an example of it, a young lawyer in Bloemfontein, who came to the airport to give me a, to take me into town because his firm was involved in an appeal - nothing to do with politics, a civil case - and inevitably we started talking in the car, and his view was that the aspirations of the black people could not be accommodated by the white people, and the sooner we had a war - and he had fought on the Angolan border - he said, ‘As soon as we have a war, and then one side must win and then the other side must shut up’. Those were his words - huh - they actually felt confident that they could win that war. What I believe they would have won is, that they would have won a major battle, but would have ruined the country forever thereafter, but that’s another matter.
But I don’t think that the ANC, the UDF, wanted that sort of war, and they conducted the struggle which they knew that the apartheid regime could not win.
Taylor: Mmm. You just used the word the struggle, do you see that as a better label than war?
Bizos: I thi(nk)- Struggle, yes. No, no, no, that is, that is I think a word which were more, accurately describes. Of course MK cadres spoke ‘We are at war’, huh, you know and they saw that, but, and I can imagine that their commanders would have spoken about it, because this is how you talk to people with guns in their hands, whom you sent into a country where the probability was that they would either be captured or killed. But I don’t know whether, you know, whether that was not sloganeering, there was a certain amount of sloganeering on both sides.
Lekwane: I mean people died. I mean there were a lot of activists who must have felt they are responding to a war situation; that it is better for them even to die, and that’s how they went into exile, not knowing… a situation that they’ve confronted. But if it was a struggle, I mean would you see that as being a struggle for peace, or a struggle for justice, a struggle for freedom?
Bizos: Well, I would like to believe that it was a struggle for all those things. But again to come to the question as to whether it was a struggle or a war, yes, from the point of view - as I’ve said - from the point of view of the young man who abandoned his schooling in Soweto, who went out of the country and underwent military training in the camps, in one or more countries, he would have thought that he was going to take part or was taking part in a war, but the low intensity of that activity, I think, it may be a misnomer to call it a war.
In a particular case, things are not - you know you can’t decide these things with surgical, with surgical precision because there was a case where the soldiers had surrounded a group of MK soldiers in the veldt near the Botswana border; sorry they were not soldiers, they were police, policemen - but it’s not… During the course of the trial of one of them that survived, it became apparent that there was indiscriminate shooting onto the group in the open veldt, huh, there weren’t even stones for them to hide behind, they were surrounded. And the police claimed, I mean in cross-examination, that they really acted in self-defense in shooting, and the judge - they were hard-pressed to answer questions of one of the lawyers and the judge actually gave him the line, ‘Well did you see this as a police action or as a war situation action’, and the policemen grabbed the line and said, ‘No we were at war’. Neither the judge, nor the policeman, and unfortunately neither counsel, said well you know that in war where you have people in that sort of situation, you would probably be tried for a war crime, for failing to take the people as prisoners. So, here both sides actually saw themselves at war, but if we are to speak - I don’t think that the participants in these actions should be the final arbiters of the determination of the correct terminology to analyze what was happening. Obviously we must draw attention to what both sides thought, but I would really say that it was a struggle.
Taylor: Moving from the notion of war to the notion of peace, how did you define peace in the context of apartheid South Africa? Because clearly it must have meant, or it should have meant, more than simply the absence of war. What did peace mean in the context of apartheid South Africa? How closely would you want to tie it, for example, to the notion of justice?
Bizos: Well, there was neither justice nor peace during the, during the…
Taylor: …apartheid years.
Bizos: …during the apartheid years. You know, I don’t want to enter into the philosophical discussion as to what is justice and...
Bizos: But, justice, the administration of justice and peace are interrelated in all sorts of ways. I don’t think that there is justice, that you can do justice, or you could have done justice in KwaZulu-Natal when people killed one another, I mean initiated violence or reacting to violence, so that you could not separate.
My unlettered peasant mother lost a piece of property which was during the German occupation (of Greece). When I asked her ‘But Mum how could you allow this to happen?’, and she said ‘Very simply, it was during the time that there was no justice’. Now I don’t know what she meant, you know, that the courts did not operate or the… But she in her simple way described it as a period within which there was no justice.
So that when we had Malindi, one of the accused in the trial, the Delmas trial, giving evidence that the reason why he was politicized wasn’t because of any lessons that he had learnt from the Communist Party or the ANC, nor was he doing the bidding of either when he called for a march or, well at the age of 22 he called for a march in Sebokeng, that’s where he started, the ungovernability process in September 1998, he said what really started him off was that when he was 9 years old and they came to Evaton to arrest his father for not having permission to be there, they were living in a shack in somebody’s backyard. His mother appealed to the inspectors not to arrest that man because it was not her husband which - he was not living there, he was a visitor, who was going to go away, if you remember that there was an exemption for 72 hours. So, the inspector, being a well-trained man and believing that the innocence of an eight or a nine year old would get him the truth asked Jim Malindi, ‘Who is there?’ Malindi said ‘I don’t know him’.
Whilst relating it to the witness-box, I am sure it would’ve happened publicly as he probably knows who would have been there, tears run down his eyes. He had been on trial for about three and a half years by then. There was no justice in this. What justice is their for a nine year old boy to deny his father? his parenthood? So, again an aphorism, that there can be no justice in an unjust society. And by all means we had an unjust society in South Africa.
Taylor: But the rationality of the LRC and other progressive lawyers was in a sense paradoxical, in the sense that you thought maybe that you could win justice through the law, through the apartheid courts.
Bizos: Yes, because, you see, the South African situation in many respects is unique, in this respect, that for - it was an oligarchy, and for the few, there was a semblance of democracy, and a semblance of justice, and the machinery for the proper administration of justice. The oligarchy had made those structures available for itself.
When it was developing, for the country as a whole, they never thought that this was there for people other than themselves. They would have preferred that these structures that tended, to administer justice and apply the rule of law would have been the exclusive use of whites.
From early on, the courts would not exclude - I don’t want to put it positively, that they wanted to do justice for all, but would find it difficult in given cases to exclude the oppressed from their functioning. And this why we were able to have some limited success; for example in inquests, when the passed the 1916 Act they said that for every unnatural death there would have to be a public hearing (end of tape)…
…Argentina, or I remember in Brazil, or in a mountain crevice in Chile, or buried somewhere in one of the supposedly independent republics of the Soviet Union. Here, they had to have an inquest. And there are lawyers there who would expose them. Of course, what has become apparent, is that in order to avoid inquests the security police started behaving like their spiritual brothers in other countries - eventually killing people and disposing of their bodies, because, in their own words, they could not afford another Biko or another Agett. So that, what we had in South Africa, you actually had an opportunity to use what was intended for the members of the white group, for whom laws and the common law reigned supreme, to a limited extent for people not so well placed.
The, of course, the judiciary was manned by people who had drunk deeply into racist and apartheid practices. And it was difficult. Sometimes I said that those acting, a small group of lawyers acting for the oppressed, with the assistance of foreigners - particularly those who provided the funding, were in some instances better than those who fight for, denying people justice and the application of the rule of law. It may be one of the reasons why lawyers acting for the oppressed had to be a little better, because it was made so much more difficult for them to really do their work. For example, I’m accused of making trials last a long time - I don’t apologize for it. If you called one or two witnesses in an ordinary case you would have won it; in order to win it you would have to call 35 witnesses, so that the judge who was mentally attuned against the ideas that your clients had expressed, would find it more and more difficult to disbelieve…
Bizos: …the great number of witnesses that you were able to produce.
And, yes, lawyers did try to do some justice in an unjust society. I don’t want to overemphasize their function but I think that they did contribute. Incidentally, you know, I have been challenged, from time to time, to say was I doing nothing more than lending respectability to an unjust system. My answer was a simple one: I will stop acting people in political cases when they don’t ask me to act for them anymore. And I don’t think that it was for lawyers, or practicing lawyers or academics or highly articulate philosophers, to try and rationalize as to whether or not a lawyer should or should not act within the political system; it should really be left to those people who, I think Aubrey knows the origin of ‘holding the knife of the cutting edge’.
Lekwane: George, you know, I know in Nelson Mandela’s autobiography, his reference to the role that you played, with talks about talks becoming a possibility, and you have an insight obviously to Nelson Mandela as your client, you seemed to have played a very crucial role at that time, I mean did you, would you see that as part of your sort of legal brief or activist role?
Bizos: Aubrey, I didn’t ask why, myself to categorize my actions. Generally speaking I asked myself ‘Is this the right thing to do, or the wrong thing to do?’ without seeking to put labels. In relation to what you mentioned, yes I was Mr. Mandela’s lawyer at the Rivonia trial, one of four, but by chance also became the lawyer that was often sought in counsel, I think that, that Ismail Ayob saw him probably more often, because he had to deal with financial and day-to-day matters, but in relation to all the matters I did enjoy the confidence of the, of the President.
When the preliminary talks started, they really started when Coetzee visited Mandela in the hospital. And he called to see me, because he was afraid that the story may go out that he was negotiating without the knowledge of Oliver Tambo, whom he acknowledged as the leader of the African National Congress. And he sent me off to Lusaka in order to brief Oliver, and also to assure him, assure Oliver, and through him the movement as well, that Nelson was in control.
You know, the nationalists really underestimated both the intelligence and the ability and the commitment of black people, because they were accustomed to dealing with people whose price was cheap, and they actually thought that they could, they could isolate Mandela from the African National Congress. And this is why, in his first public statement, on release, was that ‘I am a loyal and disciplined member of the African National Congress’, just to dispel any, any…
I don’t think that the lawyer is there only for the purposes of giving legal advice, but to represent his client and what he stands for, she stands for. I became angry with some lawyers who said that ‘I have no sympathy for my client’s cause, but I’m doing my duty’ - I’ve never said that, never apologized, for acting for anyone - including people I’ve not only, I’ve defended people from the ANC and PAC: I did the PAC trial in Pretoria, with the PAC here for - Txsolo, you know the journalist that… I never apologized, and I didn’t have to tell the magistrate that there were elements of the PAC policy of which I did not - it wasn’t his business, huh. My business was to further the cause of, of - within the limits of legality. And then, I never took the step that Bram Fischer took; history must judge me, if it really is interested in me, as to why I didn’t take that step.
Taylor: Did you ever consider it?
Bizos: Well, you know, I don’t want to really, go to the confessional about that.
Taylor: But no, need you?
Bizos: But… somebody did mention once that you need a lawyer with a clean hands. Anyway, I’ll say no more about it. Sorry, you were going to ask…
Taylor: No, I mean one thing that’s come out very clearly is how in your work you promoted and upheld justice…
Bizos: Tried to.
Taylor: Tried to. What about the argument that Steve Ellman makes here in his book (In a Time of Trouble) that legal works helped to sustain and protect a political effort, the organizational and political effort; you actually created the space for political organizations to work and advance the struggle. Do you see that as an important argument, or an important fact?
Bizos: Yes, well I think that Steve is right and I want to illustrate it by a way of example. Thirty-six people were brought from Namibia to Pretoria in the late 60s, to be tried by, on charges of terrorism, and within the terrorism there was something like 14 headless murders, of killings, under did by the people who came over the Angolan border into Namibia.
The first question that these people - who would have been in detention, incommunicado, no relatives visits, no lawyers, nothing. Dressed in the rags that they, well the clothes that they were wearing had become rags by the time, because no change of clothing, nothing. And we went to Pretoria to see them, they were a little suspicious of us at the beginning, because they didn’t really know us, but we had ways of communicating with them that we could be trusted.
And the first question that they articulated was, ‘We are Namibians, what are we doing in Pretoria?’ They didn’t recognize South Africa’s authority to administer their, their, their country. Now, they had no defense, in terms of the law and, from the facts.
We could have behaved like fairly ordinary South African lawyers who would say ‘Well, you know, South Africa is in control, there’s nothing you can say about it, there’s nothing we can do, and there’s nothing we can say about it’. I became the Communist agitator in the eyes of the presiding judge, because he although there were four counsel, I think for reasons best known to himself, he regarded me as the most troublesome, political counsel in the group, because we came up with a motion to quash the charge, the indictment, because, so we contended, Resolution Number so and so of the United Nations had by clear implication revoked South Africa’s mandate by the League of Nations to administer South West Africa. The leader of the group, named Phillips, a conservative lawyer, thought that I had gone mad.
And he said that he was not prepared to be associated with that application. He had actually been chosen because of the man that he was, a straightforward lawyer, we wanted to save for us death sentences. Now my reason, was that the accused were going to say that they did not recognize the authority of South Africa to try them. If we did not take the point that I suggested we should, the judge would have been able to more readily ignore this. And I made no bones about it with the team, that if we took this point there was going to be a massive plea in mitigation with evidences of what South Africa had done in Namibia and its people, despite the promises in 1918 when they published a Blue Book condemning how the Germans had behaved and what wonderful opportunities they would have under South Africa, South Africa’s ignominy.
We sought the assistance of John Dugard, because many of us didn’t know much about public international law. And then the, Phillips said ‘No I’m not going to take it’, and as a desperation of the, oh he said ‘If it’s a majority decision I will argue it, but I will say so’, and I said ‘No, nobody does anything against -it’s your responsibility, if you don’t want to take it, then the point is not going to - you’re the leader of the group, that’s it. We all have our say, but eventually the leader decides’. He accepted me, he said he would let us know the next morning.
I went in particularly early and I said ‘There is one other factor that I want you to consider maybe’, he said ‘Yes, what’s that?’ I said ‘If we don’t take this point and these people are sentenced to death the next week, some academic lawyer is going to say what sort of lawyers were these accused defended by who didn’t take this obvious point?’. And he said, ‘Agh, you’re talking bloody nonsense, who would say a thing like that?’. I said ‘Well John Dugard might’, and then we waited for nine o’clock, with John and the other members of the team to come, and the first question that he asked was…
Bizos: ‘John would you put your name into that article?’. And I swear I hadn’t spoken to John. John said ‘Yes, certainly, namely I would’. Well that left him with no option, you know, he was prepared to dismiss my political activism if you like, legal-political activism, but he couldn’t, he couldn’t override John’s…
Now, here is I think an example, here I think is an example of… an awareness I think, that in matters (Bizos pauses to turn down the air conditioning), in matters - that it’s very difficult to draw the dividing line. I believe that it was a proper thing for any lawyer to do.
Bizos: And I wouldn’t put it down as my role as an activist, but others might say ‘Well you know this was…’ - and we were accused of a political stunt, because we knew that we couldn’t, in a South African court, win that point. But that wasn’t the point, I wasn’t interested as to whether we were going to win or loose.
Taylor: Do you think this kind of work was one of the most effective ways of challenging apartheid from within the country?
Bizos: No. I think that, I think that - I was asked about this in Sweden, and I’ll repeat my answer, I think that what really, the death blow of, the death blow of… was as a result of the 76 situation being followed through by the United Democratic Front, and the actual catalyst was February 1985, when Chase Manhattan said we won’t roll over the bank, the bank credits.
Taylor: So you would accept the argument that the most effective means of promoting social change in apartheid South Africa was basically sanctions?
Bizos: Ah, I would say…
Taylor: With the support of the UDF? Mobilization?
Bizos: Sanctions, sanctions and mobilization. And you see the complaint of the Nationalists is that we lawyers helped the mobilization. You’ll recall that one of the charges against the Dean of Johannesburg (ffrench-Beytagh) was that he made money available for political trials, or called, he had funds political - and made money available, and that people would not take part in the struggle if they did not know that they would be defended and if they did not know that their families would be looked after.
Taylor: So without this support, where would we be today? Without the support of groups like LRC, other NGO’s - Black Sash, Race Relations, Idasa - where, would things have been different?
Bizos: I don’t want… You know, you know it’s like asking, it’s like asking…
Bizos: You know, that a task has got to be done, where millions of people have to pull on a rope in order to move a very heavy object out of a, out of a crevice. You can’t really say what might have happened…
Bizos: What you can say is that if millions of people were not involved, it wouldn’t have happened. What a couple of people, having specialized skills, being involved as well in performing acts which took courage in this vast number of people. Yes it helped, but I would be, I would be loath to accord a primary or an important prize to lawyers in their ends. That it helped, yes. To what extent it helped? I don’t know. What it may, however, have helped with, is, because there were lawyers in the ANC in-exile, the Harare Declaration for instance played an important part in the sort of society that we are trying to put together, put together.
But also I think, that in the negotiations process, lawyers played an important role in actually advising the negotiators on the sort of structures that may be established in order to resolve the difficulties that they could never agree on during the negotiations process.
For instance on the question of amnesty, the Nationalists started off with general amnesty for everything in relation to the security forces. Something that particularly the ANC and the other smaller parties would not countenance. The fact that, you know, this is a, this is something that even the Irish are looking at now, what, what structure can you really put together in order to resolve the very difficult questions that arise so that they can move forward.
Taylor: What would you make of the argument that, well we’ve developed in the context of our work here, that in many ways the work of these organizations, was that they, many of them acted and believed and practiced that they were living a non-racial democratic South Africa there and then, and in fact by living the future there and then, they helped to create that future that much quicker.
Bizos: Well, yes, I think that, that is an important factor and again arguing by analogy, I don’t think that democracy has much of a chance in the Democratic Republic of the Congo at the moment, because there was no - there is hardly anyone there who has had any practical experience of democracy. And I think, here, it’s not only the NGO’s. I think that the trade union movement with its democratic, with its democratic practices on the shop-floor. You know, during the negotiations process, I was on the ANC constitutional and legal committee, and politicians actually let us explain some of the things that…
Bizos: …that they would find difficult to explain to the constituency. And people from the trade union movement, they were actually very very sharp, very very sharp - and also some of the people who were in church groups. You see if you’re denied democracy, in the political arena, you become more and more… well you become a lover of democracy and its practices, in other structures, and there was much evidence of this in South Africa. So that we had this benefit.
Lekwane: Participation in the bench by some leading figures, in the leadership, appeared to me like, they were not positive in… I know Jules Browde I think, is one, he’s talked to that issue from time to time.
Bizos: I have a complicated view of that. Because particularly from the late 70s and early 80s when - in the beginning the Nationalists were not prepared to appoint anyone, I think that they did not believe was politically and mentally attuned to their interests. When they started believing that they were secure, they didn’t really mind appointing people who were not members of the Nationalist Party and were even critical of their, of their policies, but provided they spoke Afrikaans, huh, and provided they were not people like Sydney Kentridge, Arthur Chaskalson or Schreiner, and Rex Welsh and others, who were really, in their career, identified themselves with the liberation movements by regularly appearing for them.
If you were a sort of decent white South African, they were prepared to consider you for appointment, and the more, the more concerned people were about the rights or wrongs of accepting the appointment, the more they hesitated and the more they sought advice as to how would we, how would the movement of people close to it - the legal profession - react to appointments, to the acceptance of appointments, they were very unsure.
The more I liked the person, and the more I felt that he would try and do justice, within the ambit of the legal framework in which he had to operate, the more I encouraged them to accept appointments.
I mean, if you take people like Johan Kriegler and Laurie Ackerman, Friedman in the Cape, John Milne in Natal, and many others - they did not find it an easy decision to make, but the difference between having John Milne in Durban and van Wyk Horst in, in the Transvaal, was that the treason trial of the UDF leadership trial in Natal resulted - was acquitted within a few months, whereas with Eleanor Krickle in the Transvaal it took five and a half years, with people in custody and without bail and…
Now, one may argue on the philosophical basis, whether or not one accepts office from an undemocratic regime, is a matter of degree. Speaking for myself, I would never have done it. I would ask people to respect my decision, and…
Taylor: Laugh (at the idea of Bizos actually being asked).
Bizos: Well, I wasn’t put to the test because it was then taken for granted anyway, except in an informal basis in the early 90s. You know, I said no thank you, I’m too involved in the negotiations process, and I had to be at the Legal Resources Centre, and I said that this was more important than the other...
But I think, that many of the people that took positions with the bench should not be judged on a theoretical basis, but - I think that within the limits they helped. Goldstone in his Govender judgment, that you can’t - what about coffee now or something?
Taylor: That would be nice, thank you. (Break to arrange coffee)
Bizos: Take Goldstone for instance.
Bizos: Mrs. Derby-Lewis, in… in the Hani matter his name appears on what we’d described as a death list: Goldstone’s name is on it.
Bizos: Because she says that he is the one that really broke the Group Areas system and ruined South Africa as a result. Now we mustn’t make decisions on the wrath, the judgment of Mrs. Derby-Lewis, but it’s significant as to how the other side actually did - and there is an element of truth because, you know, they just couldn’t do it because the Actstop NGO and the lawyers that they put on their, on their panel, would go along and say ‘Well where is the argument for accommodation?’ And when they tried to, when they tried to overcome it by saying - oh, or offered him a house, number so and so in, in Vortrese - say, ‘Oh, could you please bring the list and tell as how he jumped from 3,443 to number 1?’
Bizos: You know, and that this was merely a stratagem, and you know they wouldn’t get very far.
But of course the NGO’s also played another important role, which you must not forget.
Bizos: And that is that the rural areas - there were none lawyers at all, no lawyers at all. And you’d find it very difficult to find a correspondent to enter an appearance, who’d defend some of the villages in the north of Natal and in the hinterland of the northern Cape and places like that. And you know, the school teacher, and the minister or priest, or the shop-steward in the factory built up there in order to avoid regulation in white South Africa so to speak, they had contacts with these NGO’s. And it was not the Black Sash and the church group.
Bizos: TRAC, TRAC was a very important, in relation to land. Or even a minister you see, who could phone the, the Council of Churches and they would take it up either through - because there was an overlapping, you know the Black Sash and TRAC, and there was almost an incestuous relationship amongst them in relation to this. And all of a sudden, out of the blue, you know some young lawyer would turn up and cross-examine the policeman and that sort of thing.
This is what the ANC branch did in the 50s. This is why I found myself covering practically the whole of South Africa in my little Morris Minor, huh. I mean getting up in three o’clock in the morning to start off at four, to go to Skoonnoorde, huh, up in the mountains of Sekhukhuneland or in Bethlehem in the Free State, or Christiana one day and Carolina the other day, etcetera, the other way around. Because the local guy would phone Mandela, Tambo, Shulof Muller, Jack Leviton, Harry Bloom, Ruth Heyman, and a few others and you know the matter would be covered.
I spent over a year in Zeerust, during the women’s anti-pass campaign. You must find a women called Gertrude Mphekwa, Gertrude Mphekwa - it’s a reported case, she burned six and a half thousand passes in one weekend.
Bizos: Who was acquitted at the end, on appeal. She was really handsome, you know she would give some lessons to the 76 people - in their fifties who still want - black consciousness was. Chuckles.
Taylor: I mean one thing that’s very interesting to ask, is that when we look at these organizations they came onto the scene relatively late if you like, there was a kind of mushrooming in the 1980s. If you look at LRC, I think it was set up - what 78?
Taylor: 77. Could it have been around earlier? Could there have been more done earlier?
Bizos: Yes it could have been, but it required - the LRC really is a brainchild of Arthur Chaskalson, based on the experience of the legal fund of the NAACP in the United States, as a result of the personal contact between Arthur and Jack Greenberg who was in, he was an assistant to Thurgood Marshall in the Brown versus Topeka (Board of Education). And then became director himself.
Bizos: And then an academic at Columbia University (New York).
But it required the tolerance of what is called the organized legal profession; you couldn’t have advocates and attorneys practicing together. The LRC couldn’t do without an exception from that. You couldn’t have done it without allowing funding to be given to the Centre, because an attorney has to charge fees and we don’t charge fees, and there were all sort of professional rules which had to be, from which it had to be exemptioned.
But only a person of the moral and intellectual capacity of Arthur Chaskalson, who could have, would have been the leader of the profession without any difficulty - prepared to give up that for the purposes of…
Taylor: Would you agree, international funding was a big issue, I mean it primarily, it would have been primarily at that time internationally funded?
Bizos: Yes it was, and it required persons - Arthur Kentridge’s reputation, Arthur’s reputation, Geoff Budlender’s devotion to work - which really made his, really made his - he was a student activist, Arthur and Geoff met when Arthur, Denis Kuny and I defended the Nusas leadership in 74-75.
Bizos: But um, but yes it could have been. Previous efforts were, previous efforts were spasmodic, it was easier to act in the cases as an advocate because you’re a little removed from the client, and you don’t have to find the money - the attorney has to find the money, and the attorney has to actually more easily dealt with, because they did not have the support of the Law Society, whereas we, as members of the Bar, actually were protected. I mean, because of the Bar’s support Noduma Nokwe - who was the first African advocate - and my preparedness to share chambers with him, despite the provisions of the Urban Areas Act, then the Group Areas Act, but I knew that if they tried to charge me for allowing Nokwe to occupy part of my Chambers, I would have the support of the Bar, which was a powerful body, I was almost certain even the judiciary, or portions of the judiciary, but the attorneys, I mean you know, Mandela and Tambo in Chancellor House were accused of being, of being in an unlawful location, the Law Society thought that there was nothing wrong in their being prosecuted. It was left to Jules Browde to try and make the presentations.
I, I had a personal problem, I was without citizenship or a passport for 32 years. It was not considered in the public interest for me to, to be made a South African citizen, to enjoy any of the... Until - and I wasn’t prepared to beg for it - Jules Browde mentioned it to one of the judges, Judge Geldner (?), and he without asking me actually took the initiative, he phoned Pock Postner (?) and said ‘Look you can’t do this to him, if you’ve got evidence against him charge him, let him get disbarred, but you can’t treat him, doing the work that he’s doing, as if he’s a subversive’, and his intervention bore fruit, huh, after 33 years I got a travel document.
Taylor: Yeah. Were there any other ways in which you felt maybe harassed or intimidated or..?
Bizos: Who, me?
Bizos: Yeah - but, you know, sort of compared to other people - not of any importance. You know, dirty tricks - I knew that my office was being bugged and it’s come out that this was so. But Arthur Chaskalson says it didn’t really matter, because I never keep to any text.
Bizos: Um, they would phone and it would be tremendously worrying about… my, my wife, because they would phone and say, ‘Oh, your son he has been arrested’ and is in such and such a police station. We had three sons who were at Wits, one of them was vice-president of the SRC, the other two were involved but not in a formal sort of way, and that would be very worrying. But they were quite stupid actually because very often you’d had to go no further than the bedroom (laugh), to find out that - or you know that they would not know the name, that they purport to be a friend, they would purport to be a friend, so…
Bizos: They later became a little more sophisticated. And I mean in General Coetzee, who was, when he was head of the security police would see me around and he would say ‘Ah, good morning Mr. Bizos, how are the boys getting on?’ You know.
Taylor: How do you think the security police interacted, or dealt with CALS, LRC..?
Bizos: Well they wanted, you know that they wanted, the government to ban the LRC…
Bizos: You know the story, it’s been documented; that Kriegler in particular was going to resign, if they were going to - it would have been embarrassing for them to ban an organization on which four or five judges were on the Board of Trustees.
Taylor: Yeah, yeah.
Bizos: But you know that they, they bugged the room in which the annual general meeting of the LRC was taking place at the, we stopped using the hotel - what is it called now? Mount Grace, Mount Grace - and they were very apologetic but Arthur said not only would the LRC never use their office again - their premises again, but we would make it known throughout that no decent, no decent organization should do it. But despite that I think the Center for Applied Legal Studies and a couple of others did use it on the basis that there was no other accommodation.
But the Mount Grace conference became an important annual conference of judges throughout the world, that came to it.
Taylor: What impact did that have, that… (end of tape)
Bizos: …made it possible for some of us to speak to judges, man-to-man and I mean it literally, because there were hardly any women, behind closed doors, and say some harsh things to those judges who came, the only problem is that in the main only judges who didn’t require to hear the things that we were saying came, the ones that really required to hear kept away, you know, because they dismissed this as the work of the devil or the Communists of South Africa.
Lekwane: We have this list of organizations that we wrote down, and I don’t know what’s your view of the selection of these organizations? And whether you think, are those which you’d consider as being most effective?
Taylor: You’ve mentioned Black Sash, TRAC…
Lekwane: Or maybe there are key organizations you think do not feature?
Bizos: Well, you know, I think that mainly I’m going to say - you know I don’t know some of them. Center for Applied Legal Studies I was a - I know very little about the Center for Policy Studies. The Christian Institute, I would most certainly say. I know nothing about the (Consultative) Business Movement. What did the Five Freedoms Forum do? I know very little about them?
Taylor: That was an initiative of Black Sash, Nusas, David Webster was a key activist in the Five Freedoms Forum, Beyers Naudé...
Bizos: Oh, okay - yes, although I didn’t - alright. Human Rights Commission? which Human Rights Commission?
Taylor: The former Human Rights - now the Human Rights Committee.
Bizos: Oh the ones that gave the - that Max…
Taylor: Mmm, Coleman.
Bizos: Max Coleman was involved in, yes, I think that they did good work because they gave us documentation and information. Lawyers for Human Rights, most certainly. The Legal Resources Centre, the National Education Crisis Committee, National Medical and Dental Association - I know very little about them, you know I don’t exclude them, but it’s just lack of knowledge. The National Union of South African students I have a lot of respect for, because…
Taylor: You think they played an important…
Bizos: I think that it played an important role, but above all, it produced some outstanding people, who really had their…
Taylor: …who went into other organizations.
Bizos: …their, other organizations; they got their baptism in Nusas. But then, but of course I myself was the leader of the Wits delegation in my last year of study, at Cape Town.
Taylor: Did they have the leadership schools when you were in Nusas? or was that later?
Bizos: No, no, we just had to rely on our own.
Taylor: On your own.
Bizos: …on our own. I couldn’t play a leading role in the executive because I was a part-time student, I was working during the day... I know nothing about Oasssa, the Organization for Appropriate Social Services for South Africa, I don’t know about. Sached, I think they played an important role. Council of Churches, most certainly, and TRAC of course.
Taylor: And the ones, sorry, the ten (at the top of the list) - these are ten that we’ve also identified?
Bizos: Oh yes. The Center for Intergroup Studies.
Taylor: Now the Center for Conflict Resolution, that’s in Cape Town. H.W. van der Merwe was the director for a long time.
Bizos: Oh yes, yes, H.W., he played an important role himself.
Taylor: In what way?
Bizos: At one stage he acted as my contact man with the prisons people. You know when, when any form of, any knowledge of any sort of contact may have derailed the process of the initial negotiations he was used as a go-between.
Bizos: So I think on that ground…
Taylor: Yeah, I know that before, I mean even before Idasa came on the scene he was…
Taylor: …instrumental in setting-up contacts between the National Party and the ANC.
Bizos: Center for the Study of Violence and Reconciliation, is that Varney..?
Taylor: Graeme Simpson and Lloyd Vogelman and…
Bizos: Yeah. End Conscription Campaign I think. I think Charles Nupen really, he was one of the Nusas people that we defended. The Institute for Democracy in South Africa, Idasa - they are fairly new, aren’t they?
Taylor: 86, I mean I guess their main impact was the Dakar conference.
Bizos: Yes, of course, this is…
Bizos: This is, what’s the academics, politicians name?
Taylor: van Zyl Slabbert.
Bizos: Slabbert, yes, yes… I have a hell of a lot of respect for the Quakers because during the blackest, sorry for the expression, huh, the worst possible period in the middle 60s, they were practically the only ones that, that really - a lot of respect. I think that the South African Institute of Race Relations died with, what was the women’s name… I really think that it lost its way.
Taylor: Yeah, a lot of people say it changed direction when Kane-Berman became director.
Bizos: But even before that…
Taylor: Even before that?
Bizos: Yes, even before that, but it...
Taylor: Why? Why did that happen, I mean potentially, historically it had a…
Bizos: …an important function. I think that Berman lost his way, I that he was the only supporter that Buthelezi really had, and that alienated a lot of people, and then Dulugeneur (?) is the president, and as far as I’m concerned, although he was a theoretical critic of apartheid for years, he’s now become an apologist of…
Taylor: Yeah, I mean his articles in the Cape Times were really...
Bizos: It’s - I looked forward, you know there was a period during which Rapport was a pleasure to read, when, when De Klerk, the brother, was editor he would give - you know it was a pleasure to read. A fellow like van der Ross, de Louve, and others, at least the questioned the moral authority of this and it softened up… I actually remember having a chat to, shortly after 76, because that’s what really, I think 76 also, had an immense effect on a number of Afrikaners who started questioning the leadership and I remember, I remember talking to Pakendorf and I think he was rather flattered, because I said listen, you and your kind are the patricians of Afrikanerdom, you can’t allow Afrikanerdom to fall into the hands of…. you must do something about it. So there was this…
Taylor: So would you argue that intellectuals had played, on balance, that intellectuals - particularly Afrikaner intellectuals - they played a positive or a negative role?
Bizos: Both, both.
Taylor: A kind of Janus face.
Bizos: Well yes, because you would call, you would call Viljoen, the rector of ...
Bizos: RAU, but on the other hand, a man, what was the man’s name that was in education, education - the man that succeeded Viljoen as rector of RAU, I can’t think of his name at the moment, he - De Lange.
Taylor: De Lange, of the Broederbond.
Bizos: Yeah. He actually started questioning the validity of whether Afrikanerdom was the… and, you know when, when important people like that, and the reason for their, the reason for their change of tune, very often, was the meaning- was when for the first time they had some meaningful contact with black people.
He, De Lange, held the education, the education commission, and we were actually able to use parts of it in the Delmas trial, because the Delmas trial was the political trial par excellence, for me. This was, you know, it was, it’s really the Socratic defence - ‘you’re charging me with a crime, I committed no crime, I am the patriot and I did my patriotic duty’, and you know Socrates said ‘You mustn’t punish me, you must give me free meals at city hall’, huh. And this was, this was the way the defence, the defence was conducted.
Bizos: And he actually came to some conclusions, and I’ll never forget what he said, that I wish some lesson would become a little broader, he said you know ‘My people’, the Afrikaners, ‘will soon have their maths and science taught by Indian teachers’, because he identified as the Indian community as the one that really treated it’s teachers with consideration and respect above all others. Which was an interesting, um (coffee served)…
So, you know, for him, up to then I suppose the Indians were just dirty shop keepers and grabbers and, you know.
Did you see how Bram’s, Bram’s grandfather referred to Indians?
Bizos: In the book (Clingman), his grandfather - but now we’re talking about earlier this century… ‘trackless and stinking Coolies’, but that’s how people spoke at that time, for some. That’s the language of sons and grandsons, but not in the Fischer family.
Taylor: I mean talking of generations, do you think that we can identify generations of struggle? Like if you look at it, if you look at it through the people who were active in the 50s, and others the 60s, the others who came through Nusas, others came through...
Taylor: Would it make sense to kind of have a generational perspective on the struggle?
Bizos: Yes I think so… Yes, I think that, of course, generations played an important part. You know the African demands of, in the mid-40s, that led to the youth league, to put them down was inspired by the Atlantic Charter. Ten thousand copies of the Atlantic Charter rendered in basic English were distributed on expensive Indian rice paper in South Africa, not for its principles, priparily, but in order to show that it was quite easy to render important documents in basic English.
And this group that drafted the African demands, when they got a copy, I said, ‘Hey, this means us?’
Bizos: You know, that there will be no…
Bizos: …that at the end of the war. So I think the principles which were held out, not always necessarily as to why the war was fought, certainly had an influence on my generation, because we were I think too young to fight, I was twelve when the war was declared. But old enough during our schooling to take it rather seriously - the things that they were saying about the war. And my own personal… I found that I came here as a refugee, there was a demonstration outside the station, by Ossewa Brandwagers, saying that Smuts was bringing the ‘valebode’ trash of Europe to South Africa. My father’s shop was directly opposite the Vaderland, and on the cantilever stair, I remember the 1948 election when my first year at university where they were talking about ‘Stem dames en Here, Stem vir ‘n blanke Suid Afrika, Stem Nationaal.’ Don’t you understand Afrikaans?
Taylor: Not very well, no.
Bizos: ‘Come vote ladies and gentlemen, come vote for a white South Africa, vote national’. And it led, to what I’d call friendships; Mandela and thereafter Duma Nokwa and others, and Nusas, and the ex-servicemen - because the majority on the student body were senior students, were all, the majority were people who had fought in the war - a much more mature group, there studies were interrupted by the war. And so you know that’s one generation.
Bizos: The defiance campaign, Nusas, treason trial, Freedom Charter generation. Then, I think that the generation that matured in the 60s, really had the toughest, the toughest of all, because the repression really was tremendous.
Taylor: But what about the impact of worldwide of event like 68? And the impact of ideas like, well the impact of Marxism and the rise of Marxism within the South African academia in the 60s, in a sense it’s again, was a sense in which the 60s generation had an international kind of reference point or they could look at what was happening in Paris or in America or…
Bizos: Yes, I think that Marxism played its role, because many of the, many of the people seeking fundamental change in the country I think came to Marxism as a result of the deep feelings of injustice.
Bizos: And if they did not have another framework… I think that I had an anti-Fascism - being a refugee from Nazism and Fascism, I left Greece a few weeks after the German occupation. My father took allied soldiers out of German occupied, German and Italian occupied Greece. And the fact that my father was prepared to risk his life for the allied cause obviously was a matter which didn’t pass unnoticed in my own, it pre-ignited a need in me, in a special…
And incidentally the most, a terrible thing that struck me when I arrived in Durban was that people in rags were drawing rickshaws - you know what a rickshaw is?
Bizos: Yeah. No, not the sort of people that you get, to take a photograph on them. In those days they were a means of transport, you know - transport goods on their rickshaws, fruit or vegetables and things like that. The idea of a draft animal which I was accustomed to, this work being done by human beings to me was…
And anyway, you know, this is not an interview about my development, but what I think, what I think really happened, that the National, the Nationalist Party victory in 1948 was an affront to many people. And once they looked around, you know, where do we find a political home, theoretically Marxism was attractive I think as a counter, and also I think that the cold war years, in which the United States in particular lent unqualified support to the South African regime for negative reasons, they were anti-Communism; the American ambassador which urged them into Robben Island together with the Minister of Railways and Harbors because he was in control of the ferry, that would, you know.
Taylor: Mmm. I mean if I can read a quote here from the book on Fischer, it’s Fisher talking at his trial, he made the point that ‘the sole question for the future, for the future of everyone, was not whether change will come, but whether it can be brought about peacefully, without bloodshed’. Now when you heard that at the time, did you believe that…
Bizos: Well, when it was being written, because I was… chuckles…
Taylor: When it was being written!
Bizos: Because I was, I was you know, I think the book says that I assisted in…
Taylor: Yeah, in the… I mean at that time, how did you see the future, did you believe that we could be were we are now? or did you see a future of bloodshed?
Bizos: I am an eternal optimist. I actually, I actually yearned, I actually yearned for what we have now. I am responsible for two important words in Nelson Mandela’s final paragraph where he said that he’s prepared to die for a democratic South Africa, without the domination of either black or white. I insisted that he should put in ‘If needs be’.
Bizos: You know, I thought it was to challenge him, it was to challenge him to say that, you know, ‘so don’t you want to live and see it accomplished?’ But…
Taylor: And do you think maybe one of the reasons why bloodshed was avoided was because there were a number of people who had the kind of yearning that you had, was very important? A yearning to avoid…
Bizos: Yes, I think that that, I think that that played an important role and you may have seen in the book how angry Bram was with me…
Taylor: Oh yes. Yes.
Bizos: Because I went and asked him whether he thought it was worthwhile. And we were sufficiently close for him to speak, to speak plainly and angrily, because I think friends can become angry with one another as well as that - he said he wanted to know from me whether I asked Nelson the same question and I said no, and he said well he had a practice, he had a family, he valued his freedom, why didn’t you ask him whether his sacrifice was worthwhile? And do you ask me? Well, there was no answer to that, of course. But, yes I think that the symbolism of Bram Fisher’s act was very important, he wasn’t alone of course.
I met the descendents of - a young women came up to me and said my name is somebody-Thompson, in the context gave me a, I said ‘Oh are you the Spring’s priest’s, Thompson’s grand daughter?’. ‘Yeah’ she said, I said ‘Well I knew your grandfather’ and that sort of - Now here is a simple priest you see, who was prepared to undergo whatever trials and tribulations were imposed on black people. Beyers Naudé, Joe Slovo, you name them, they were prepared to go the whole hog.
And, you know when you go overseas, and they used to see this funerals and protest meetings and there was a sprinkling of white people there, and they’d say ‘Hey, what are the whites doing there?’ They all believed that this was a black/white struggle.
Taylor: But without that presence, do you think the conflict could have taken more of a dimension of a racial war?
Bizos: I think that the primary motive for Bram Fischer’s conversion to Communism in the 30s, was because he as an Afrikaner Nationalist, because that’s what he was, feared a racial war, and he through his person and example did what he did in order to avoid it, accept that he was not alone, there were other people, prompted either by Marxism or religious conviction or intellectual conviction of the dignity of man, were prepared to identify themselves with the struggle.
Bizos: You know, sorry to use the personal example. If the three of us (Bizos, Lekwane and Taylor) walk up from here to Innes Chambers, I will not be greeted by a single white person, but I will be greeted by five or six black people. It does occasionally happen that I’m greeted by a white person, but…
Taylor: Mmm. Do you think it was a major struggle, I mean some of these other organizations - whereas you were concerned to work through legal cases etcetera, some of these organizations were concerned to try and change white attitudes.
Bizos: Yes, yes. The other thing you see, why, why, the reason why the LRC may appear to be pre-eminent among NGO’s, Lawyer for Human Rights although they didn’t do so much litigations as we did, that, the drama of the adversary nature of litigation, gets much more publicity.
Bizos: I mean, someone doing the job for TRAC in the country, there may be an in-depth article on TRAC once every six months by some sympathetic journalist, whereas if you bring cases - whether it was for passes or occupation of land or even for squatters or for, for suing someone for making a racist remark in - I must take you downstairs where we actually have our placards of all of our cases - or because you win a case preventing a municipality from closing a swimming pool because blacks now have the right to go and swim there, All this brings to the fore the work of the LRC. I mean getting an affidavit from Nofomela did for Lawyer for Human Rights no amount, you know, you could have published a million pamphlets, huh, you wouldn’t have got the publicity you got as a result of - what was the man’s name, that died?
Lekwane: Chucksie Makete (?).
Taylor: All that publicity what effect do you think it had on white attitudes?
Bizos: Well, I think that in the main, it didn’t have any effect at all, for the disciples of apartheid it had a completely negative effect, you know, ‘what are these bastards doing to us’. But I think that there was an important, it was of some importance, of people who are looking for guidance, for a new experience or - I mean the re-detention in the Ndowe (?) case in the early 70s. I don’t know if you remember the, she was charged with 22 others, with 21 others, and David Soggot and I were defending her. They didn’t like the way the trial was going and they didn’t like the judge and they didn’t like the progress that we made, they withdrew the charges and they were acquitted, but they were immediately re-detained and charged with terrorism. They made the mistake, they thought, the law says that if you’re charged with terrorism and you don’t prove terrorism, it doesn’t mean that you can’t be charged with a lesser offense, for instance, its terrorism to block the traffic, they charge you with terrorism, you’re acquitted and you prove that you did block the traffic but it was engine failure and not an intention to stop the cars from going home and to start a riot, so they would charge you with obstructing the road. They read it the other way around. That they charge you with furthering the objects of an unlawful organization, and you’re acquitted of that, but would be charged with terrorism. And the common law is, that it doesn’t matter what you call the crime, it’s the conduct which…
Taylor: …is important.
Bizos: …which is important. So we took the point and eventually succeeded that it was the same conduct and therefore double jeopardy applied and they were acquitted. They didn’t have any other defense by the way, huh. But you know, even if we tried to mesmerize our opposition to make a mess of the case, we wouldn’t have done better. But be that as it may, the re-detention, when, you know, I - this in 71 I think - the re-detention radicalized most of the young people that I defended afterwards, because you know you usually ask, you know, ‘What made you take this road?’, especially when you say I did what I did not because of any incitement by the ANC or the Communist Party, but because of my innermost feelings of injustice being done and being able to do something about it. ‘Well’, they say, you know, the 22 they were in number, ‘the re-detention of the twenty-two’. So there was, there was among the white community, we’re talking about, where there was a receptive audience, it acted as the spark, in order to radicalize people.
Lekwane: It is actually quite interesting that, you know we talk of the non-racial or racial aspect to the conflict, and the sort of international influences in the 60s, and you haven’t mentioned the word, the colonial aspect to the conflict. How South Africans, I think even now, have not really seen the conflict as an anti-colonial struggle from the black African majority, which you know throughout the 60s was a very popular sort of motive that influenced many countries, on our borders as well, mobilizing people to action, and in South Africa it wasn’t, and yet…
Bizos: Except that you know Aubrey that there is, a book was written where Gwendolyn Carter and Tom Karis called Transkei: An Experiment in Domestic Colonialism, and although the classical situation of, you know because supposedly we’ve ceased being a colony in nineteen-hundred and ten… the colonialism in the economic field and other fields, obviously from the point of view of analysis maybe important, of importance to the intellectuals, but I think that to the vast majority of the population here it was Afrikaner whites, it may well be it just occurs to me, that because English-speakers were to some extent perceived to be against apartheid, even though some of them were worst racists than any Afrikaner, it may be that it has, that it helped to avert a black/white conflict situation.
So I don’t know that the vast majority of the population saw this as a colonial and subject people situation. Because, I don’t want to discuss it on an intellectual level, but I think that from the point of view of the average black and the average white it wasn’t seen as a metropole to the colonial, situation. You know there was an obvious distinction between Angola and Mozambique and the Portuguese metropolitan area situation, let’s get rid of the Portuguese out of Mozambique and thereafter in Angola.
That wasn’t there, because the practical situation is that I think that, the PAC slogan calling whites settlers, wasn’t based on fact, they picked up the slogan from Kenya and Zimbabwe, to a lesser extent Zambia. They couldn’t call, I don’t think that they could call the Portuguese settlers because I think even the whites that lived in those areas, they had no real say, everything was decided in Portugal. And it didn’t matter how good you were as a, as a Mozambican; like they need an architect to put the cathedral in Maputo. And they came, they had to leave Mozambique and become professor of architecture at Wits, he was a fellow student of mine, actually we took part in the first demonstration at the university when Modlane was expelled.
One of the first acts of the nationalists, vis a vis the university was at the request of Peeder (?) that we get rid of Modlane as a student at Wits. So they didn’t even consider them settlers, you know they may have been white, but they were still colonials as far as Queenborough (?) university was concerned. Even the school terms, the school terms in Mozambique corresponded with the school terms in Portugal, so that when you needed a vacation during the hot summer, because it was school-going time in, huh, in Portugal it was school-going time in - You know, because when I was there, I was there six months before Cape Town, no four months before Cape Town, and I was just curious you know to find out how this place was being run, when were their school terms and - you know, and this was it.
So I think that, and this is a factor that ought not to be overlooked I think, black/white situation, that to call whites settlers is a myth really, and to say well it doesn’t matter on your colour, provided you embrace African values in itself was, if taken seriously, a contribution to the non-racial solution, you see.
Taylor: Do you think we actually have adequate intellectual or conceptual tools of analysis to understand what has actually happened in this country? I mean if we look back, if we look the kind of, if you look at liberal ideas, Marxist ideas, if you look at the kind of colonialism approaches, none of them seemed to be able to, or even if you read books today - analyses of what happened - there’s a sense I think that theoretically our understanding of what has happened falls behind the practice. What you agree with that? or..?
Bizos: Well let me, let me say something.
Bizos: That as a trial lawyer and I’d like to think as a practical man, I think that it is a futile exercise to try and find yardsticks in political theory or literature in order to fit a given situation.
Bizos: So, that’s my non-helpful (chuckle), my non-helpful contribution to your question.
Taylor: Yeah, well in that case, I mean in a sense, one would then be very critical of the arguments that were being put forward in the 70s and 80s by liberals and Marxists because they generally would look to these European Eurocentric models of Marxism or liberalism, and try and to apply them to South Africa, was that a mistake?
Bizos: Well I think that it’s, that it actually impedes the finding out the truth rather than helping it.
Taylor: And how do you find out the truth? Is it a kind of pragmatic… facts or..?
Bizos: Yeah, well what you do is you describe what happened and you describe the circumstances, and you know history does not have to, history does not have to…
Bizos: …to conform to pre-conceived political, political ideas. I know that sociologists and historians are very anxious to pigeonhole things, but…
Taylor: But if you look backwards though, can’t we identify key, key…
Bizos: Some elements, yes, some elements.
Bizos: Some elements - for instance you can possibly explain, you can possibly explain that, you know I myself very often, analyze a situation and, when I am speaking particularly to overseas audiences, I say that Afrikaners regarded non-Afrikaner whites as their guests, South Africa belonged to the Afrikaners, they regarded white South Africans or South African residents as their guests, the coloreds as the helots and the Africans as their slaves. Now, (chuckles) for me this is a very expressive, there was this very expressive way of getting an idea across.
Bizos: Now whether this fits into Marxist theory of history or (chuckle) or whether, or whether its… some pigeonhole somewhere in liberal philosophy to which - I don’t care, I got my point across.
Bizos: But there can be very little doubt, that those ideas were propagated, and I do not reject, I don’t consider Marxism as a swear word. I think I got up to page 18 of Das Kapital and found it very boring (chuckle) after that, but…
Taylor: Do you think a lot of strategic advantages were lost because of the kind of antagonism that often did exist between Marxists and Liberals?
Bizos: Yes I think that there was a lot of futile debate. I saw innumerable exhibits found in the possession of one or other of my clients starting off on, or with a heading ‘Some thoughts on…’
Bizos: …with sterile debate, attacking or defending Marxism and/or Liberalism and/or accusing the one side of non-, non-, -scientific they called it…
Taylor: Right, yeah.
Bizos: …analysis of the situation. You know from the Unity Movement, that you know that the population was not ready, we were ready and it must be led to the, into the jaws of the enemy, because of lack of proper analysis, to accusations of trying to fit something into Marxist philosophy, or trying to fit the disasters into non-compliance with a free market philosophy. I find that sterile, and not very helpful, but then as I said, you’re asking the wrong person about theoretical matters - I consider myself a practical man.
Taylor: In your own mind did you work with a kind of incrementalist view of bringing about change through challenging the law? I mean that’s one of the themes that Steve Ellman talks about, the incrementalist process of chipping away at the law until…
Bizos: Yes, I think that that was, I think that that is, because I was involved in it obviously (end of tape)… without having any idea at all about these philosophies, when Boas Lekwae in Ndakane among the Mafabose in the Western Transvaal, when they banished this chief they took this man with the biblical name Boas, who was unlettered, but he was born into the chief’s family, he was the chief’s uncle, and they took him to the school, into the school hall - the tribal area in Ndakane, to appoint him as chief. He was an old man, about 70 at the time, and he said ‘I have seen many chief installed in my life, never one in the school hall, the Kgotla is out there, take me there and call my people, and they applaud me as their chief, I will accept your appointment’, you know, Marxism, Liberalism, Aristotle, go to hell - this man knew what democracy was.
Taylor: Ahh, but there we have it - the guiding theme is democracy.
Bizos: Yeah. And that’s what impressed me. You know.
Bizos: Actually one of the men that I will never forget in my life, is Boas Lekwae, because this was a dignified man, in fact, there is a book on him called Brief Authority. I asked the author to keep my name out of it because I’m the counsel in it, Bahoopa, because I was afraid that if my name went into the book, firstly members of my profession would object to my seeking the publicity, and the authorities may - even though they knew who I was. But you see there is Boas Lekwae, you know.
Taylor: What you saying really is that the key guiding force is a commitment to democracy?
Bizos: Yes. Yes, and whatever criticisms there may be about Communism and the Communist Parties of the world and that sort of thing, the South Africans, the South Africa Communist Party, even though it may have found it opportune not to criticize the Soviet Union, as did not the ANC, because you don’t criticize your friends - by the looks of things. And I can understand that. There isn’t anybody in South Africa that can point a finger at the Communist Party in South Africa and say that ‘you did wrong’.
Taylor: Yeah, I mean both the Communist Party and the Liberal Party, until it was banned as well, I mean you would argue that the commonality is there concern with liberty and freedom…
Taylor: …although they have different…
Bizos: Except that, you see, you see we’re not talking about liberalism, but we’re talking about the Liberal Party.
Bizos: You see, I think that the Liberal Party played an unfortunate role, and I think in my youth I used even stronger language, in actually encouraging the split in the ANC. Duncan and others, because of their cold war mentality, because the ANC had associated itself with the Communist Party and the Indian Congresses - particularly the Indian Congress in the Transvaal was identified with the Communist Party because of Yusef Dadoo’s prominence. They actually encouraged, they supported and encouraged the breakaway movement from the ANC which was I thought an unfortunate division.
Taylor: Mmm. I mean it’s interesting now, I mean there does seem to be some kind of convergence, if you look at the Communist Party now, if you talk to someone like Jeremy Cronin, moving toward the notion of social democracy. We interviewed, well Jackie Cock and I interviewed Sheena Duncan the other weekend, and I asked her well how do you see yourself, and exactly the same as you, ‘social democrat’. She’d reject the liberal label, for some of the reasons that you have as well. But I mean I guess what one is saying is that if we’re looking for a common theme in the struggle against apartheid, a commitment to social democracy is what everyone had in common.
Bizos: Yes, yes.
Taylor: That may be a guiding thread that we…
Bizos: Yes, a guiding thread. And also, I think, some of the members of the Liberal and the Progressive parties would reject socialism almost as a swear word like elements, the majority of the people in the United States that say ‘that’s a socialistic…’. I don’t consider it a swear word. And I think that there were two things that you had to accept, which I accept, and that is the idea that politically we should be equal and that attempts should be made to uproot poverty. Now you may say that this is something that Pericles said in the funeral oration, reported by Thuycidices, that there is no shame in poverty, but the shame really is not taking practical steps to put an end to it. Yes, long before Marx. And also you see, I am also on record as having said that Aristotle said that inequality in goods and honors leads to seditions. Marx wrote a very long footnote to that simple statement.
Bizos: So I don’t have to read Marx. Inequalities in goods and honors leads to seditions; it’s enough for me.
Taylor: Aristotle also talked about the need for, well in terms of defining politics, of a kind of civic republicanism - where you encourage civil society, where you encourage people to take an active involvement in politics…
Bizos: Well, in exactly the same paragraph, ‘And we say unto those who say that the business of the polis or the city state is not their business, that they have no business to be here’.
Bizos: I don’t need Marx for that either (chuckle).
Taylor: And isn’t part of the role of these organizations that they…
Bizos: Well, absolutely…
Taylor: …contributed to a vibrant civil society?
Bizos: Absolutely. ‘And we say unto those who say that the business of the state is not their business, that they have no business to be here’.
Lekwane: Let me bring in here a completely separate issue. At Lawyers for Human Rights, in which I was one of the people who started in the full-time office of the organization, I know when the organization was established I was associated with the South African Communist Party, and there was a discussion to look into that matter, and I know there was a possibility of me having to decide or continue association with the organization. I mean for an organization with really highly reputable key people, I mean, that sort of thing happened, you know? You know, at one stage when most of these organizations were unbanned, I mean, how would you define the character of these organizations? I mean talking about liberal, and so on.
Bizos: You know Aubrey I don’t have to answer that question on a theoretical basis, I was on the national council (interruption) … When one person saw you on the platform representing the Communist Party, in Alexandra, when the matter was brought to the council, it’s a matter of record, I’m not blowing my own horn, I said ‘Why was this matter ever raised?’ Mr. Tony Leon is a high profile member of a political party. Why didn’t you bring his Mr. - his brother, and I gave a few other examples. ‘Why is this matter being brought here? Is it because he’s said to have been a member of the Communist Party?’ Well, there was absolute silence. Then I posed the next question: I said ‘If he did anything wrong, let us inquire whether he had permission to take the day off as a full-time employee, in order to attend this conference’. And nobody had any facts in relation to that. And I said ‘Well, if anybody has any complaint it must be confined to that issue, to that issue only’. And that was the end of the matter. You didn’t suffer any consequence. But because we had, there is no reason why - it was public - it was Mrs. Owen, the wife of Mr. Ken Owen, the editor of the Sunday Times, a great liberal (laugh), you see, who raised it, and I considered it completely undemocratic, completely undemocratic.
And you know I may also tell you, that a lot of people came to me that we must sue because they’ve called me a Communist. And I had some reservations about this, even during the days of illegality, because I traveled in the same plane in 1975, from Cyprus to Athens, one of those slow planes, with two propellers made in Japan, sitting next to a women who had abandoned the Communist Party of Greece, which was accused of being a Stalinist Party by the others and they formed a Euro-Communism party. And an elderly gentlemen passed by, and this woman said ‘Hello Comrade’. And he just said ‘Hello’, huh. My conversation with her had actually developed quite a lot by then, during the conference. And then a tear went down her eyes, she said ‘That man, we were comrades for so many years, we fought together against the Germans, we fought on the same side during the civil war, he will no longer do me the honor of calling me a comrade, and he will deny me the right to call myself a Communist’.
Bizos: You see, you see those lessons for me were more important in my life than the name calling of, you know the name thing.
Taylor: My final question, I guess, is, do you think that if you had kind of followed the kind of path of Bram Fischer, you would have made any greater impact than you have?
Bizos: I don’t’ know, I don’t know if I did. I certainly can say that I had neither the commitment nor the courage of Bram Fischer. And let, and let the people of South Africa judge me for that lack of courage, or lack of commitment.
Taylor: Thank you.
Lekwane: Thank you very much for your time.
At the end of the interview Bizos pointed out that the name of the old African woman involved in the pass-burning episode was different to the name stated and requires correction. Bizos took Taylor and Lekwane down to the LRC boardroom, so as to see the posters on the wall - all of newspaper placards from The Star, Sowetan, and Argus on important decisions/cases that the LRC were influential in. Seeing a poster on the Delmas trial, Taylor asked Bizos if the Delmas trial was the most important trial he had been involved in, and Bizos said ‘Yes, even more important than the Rivonia trial…’ Bizos also made the important point that in court one had the space/platform to say what one could not say elsewhere and that this was important, having unconstrained dialogue…