Nelson Mandela’s contribution to the rule of law

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JUNE 11 – 14, 2014



By: Advocate George Bizos SC
Legal Resources Centre
16th Floor
Bram Fischer Towers
20 Albert Street
Republic of South Africa
Email: counsel@lrc.org.za
Tel: (2711) 836-9831
Fax No: (2711) 834-4273

5 December 2013 a great man lay down and closed his eyes for the last time. It was the end of a full life, well lived. Nelson Rolihlahla Mandela, whose life began at the end of the First Great War, passed away at the age of 95. Mr Mandela was a statesman, a peace-maker, a president, a nation-builder, a revolutionary, a freedom fighter, a convict, a husband, a father, and a friend. He is a global icon who has become a legend. But before he was any of these things, Mr Mandela was a lawyer. His life was guided by optimism and is best captured in one of his most famous quotes:

“I am fundamentally an optimist. Whether that comes from nature or nurture, I cannot say. Part of being optimistic is keeping one’s head pointed toward the sun, one’s feet moving forward. There were many dark moments when my faith in humanity was sorely tested, but I would not and could not give myself up to despair. That way lays defeat and death.”

Lawyers are supposed to obey the law. Nelson Mandela was a lawyer. He disobeyed the law a number of times because he believed that he did not have to obey laws which were enacted by an illegitimate regime and which were unjust.

The jurisprudential issue is as old as Plato wrote in his Republic the debate between Socrates and Thrasymachus (was it his real name or the selftopinateone?) . Let us remind ourselves what was said:

“Thrasymachus affirms that the just is nothing else than the advantage of the stronger, whether the governed is headed by a tyrant, aristocrat or even a democrat, the laws are enacted for the benefit of those who govern. They punish those who disagree for the benefit of both the strong and the weak. Socrates poses the question to which Thrasymachus has no answer: ‘What if the strong choose to do what is to the disadvantage of both the strong and the weak? Would that be unjust for both of them’. The debate goes on to this day.”

Soon after Mandela was admitted as an attorney in the early 50’s he was appointed Volunteer in Chief of the Defiance Campaign based on Ghandi’s example in South Africa and later in India. Protestors of non-racial groups demonstrated by disobeying apartheid laws, inviting arrest, refusing to pay fines, being jailed until the jails were filled and declaring that they would do it again until the discriminatory laws were repealed.

Mandela together with a few other leaders of the Campaign was convicted by the High Court and sentenced to a term of imprisonment suspended provided they did not repeat the offence. He soon received court papers from the Law Society to show cause why he should not be struck off the Roll of Attorneys for his criminal conduct.

Leading advocates Walter Pollak QC and Blen Franklin represented him to oppose the Law Society’s application. Judge Ramsbottom accepted their arguments relying on South African case law confirming that Afrikaner rebels against the Government in 1914 were allowed to practice both as advocates and attorneys. He declared in his judgment:

“The sole question that the court has to decide is whether the facts which have been put before us and on which the respondent was convicted show him to be of such character that he is not worthy to remain in the ranks of an honourable profession. To that question there can, in my opinion, be only one answer. Nothing has been put before us which suggests in the slightest degree that the respondent has been guilty of conduct of a dishonest, disgraceful, or dishonourable kind; nothing that he has done reflects upon his character or shows him to be unworthy to remain in the ranks of an honourable profession. In advocating the plan of action, the respondent was obviously motivated by a desire to serve his follow non-Europeans. The intention was to bring about the repeal of certain laws which the respondent regarded as unjust.”

Judge Roper concurred. Shortly after his release from prison in 1990 the Law Society invited Mandela to be guest speaker at its annual general meeting.

He thanked them for the invitation and reminded them that his previous two “invitations” were to show cause why he should not be struck off the roll `had been delivered by the sheriff. Whilst incarcerated on Robben Island some ten years later, the Law Society once again filed an application to have his name removed from the roll. Mandela responded that he would need two weeks in the Pretoria Court library to adequately respond to their application. The Law Society quickly withdrew the application.

After his release he repeatedly emphasised his belief in the rule of law and an independent judiciary: “Bloemfontein is the judicial capital of the country. I wish to reiterate here the ANC’s total commitment to the rule of law . . . [W]e praise those judges and magistrates whose have defended the integrity and independence of the courts and whose enlightened judgments are beacons of hope for the future.” “We shall leave it to the judiciary to determine which rights are enforceable at the instance of individuals.

We shall be surprised if such rights as the right to clean water, to minimum nutrition and to adult education cannot be enforced by the courts. The condition prevailing on the morrow of democracy pose a challenge to the legislatures, to public and state authorities to adopt policies which will give priority to the rights of the poor and marginalised in our society. A denial of such claims would be to accept the dehumanising effects of deprivation and mass poverty as the lot of the majority of the people.” Later that year in an address to the Law Society that had once tried to have his name removed from the roll he stated:

“Courts will have to give substance to their content. They will have the right to pronounce upon the validity of the legislation passed by the various levels of government and decide whether the challenges to its validity is justified. The decisions are not made by a judiciary which had the confidence of the vast majority of South Africa, problems are likely to arise.” Mandela’s belief in human rights was however not limited to our jurisdiction. Writing in the November 1993 edition of Foreign Affairs, Mr Mandela wrote that “South Africa’s foreign policy will be based on our belief that human rights should be the core concern of international relations, and we are ready to play a role in fostering peace and prosperity in the world we share with the community of nations.

He added: “The time has come for South Africa to take up its rightful and responsible place in the community of nations. Though the delays in this process, forced upon us by apartheid, make it all the more difficult for us, we believe that we have the resources and the commitment that will allow us to begin to make our own positive contribution to peace, prosperity and goodwill in the world in the very near future.” As a president, Mandela kept true to his word to allow for an independent judiciary and he took active steps to ensure that his earlier statements about human rights were actualised.

The most impressive example of his stated intent occurred in the High Court hearing of what has become known as the SARFU case. In this instance, President Mandela became the first serving president to appear as a witness, give extensive oral evidence and subject himself to the rigours of cross-examination despite the advice of his lawyers that he could claim privilege. The case dealt with his power to appoint a commission of inquiry. President Mandela participated in the hearing in a respectful and meaningful manner, often discussing factual points with counsel questioning him. His commitment to the rule of law had its roots in his time in practice as a lawyer.

During the fifties his partnership with Oliver Tambo developed a substantive practice with particularly African clients charged with political offences and played an important role in the African National Congress under the leadership of Chief Albert Luthuli who was later awarded the Nobel Peace Prize. They played an important role in formulating the Freedom Charter adopted in 1955 which declared:

“We, the People of South Africa, declare for all our country and the world to know:

That South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of all the people; That our people have been robbed of their birthright to land, liberty and peace by a form of government on injustice and inequality; That our country will never be prosperous or free until all our people live in brotherhood, enjoying equal rights and opportunities; That only a democratic state, based on the will of all the people, can secure to all their birthright without distinction of colour, race, sex or belief; And therefore, we, the people of South Africa, black and white together – equals, countrymen and brothers – adopt this Freedom Charter. And we pledge ourselves to strive together, sparing neither strength nor courage, until the democratic changes here set out have been won”… Let all who love their people and their country now say, as we say here: “THESE FREEDOMS WE WILL FIGHT FOR, SIDE BY SIDE, THROUGHOUT OUR LIVES, UNTIL WE HAVE WON OUR LIBERTY.”

Nelson Mandela together with 155 other leaders of the African National Congress, the Coloured Peoples Congress, the Indian Peoples Congress and the Congress of Democrats were arrested on a charge of treason primarily because those who organised the Congress of the People had adopted the Freedom Charter.

A mass meeting had been held in Kliptown, a township primarily occupied by “Coloured” people to which all had access unlike the city which was only for Whites and Soweto which was only for Black Africans and Lenasia which was only for Indians. The reason for the four separate but allied congresses was the difficulty of meeting.

The hall at the military barracks in Johannesburg was converted into a court room to hold the preparatory examination of the large group of imprisoned accused.

Harold Hanson QC, the doyen of the Johannesburg Bar, led a number of others representing all the accused enclosed in what Hanson called a “wire cage” and threatened that if it was not removed, the legal team would withdraw. It was quickly removed.
The preparatory examination went on for over a year. The best cross examiner at the Bar was Vernon Berangé.

He exposed the falsehoods deposed by the prosecution’s witnesses in his application for the discharge of all accused on the ground that there was no evidence on which they could be charged with treason but “kite flying” by the Apartheid Regime to destroy the Liberation Movement. The Chief Magistrate in a most laconic judgment found that there was sufficient evidence against all the accused to be charged with treason, a capital offence.

They were all arraigned before three High Court Judges in Pretoria in an abandoned synagogue converted into a court room.
Amongst the accused were Nelson Mandela, Oliver Tambo, Duma Nokwe, the first African advocate to be admitted and Joe Slovo who formed a committee to assist Isie Maisels QC, Bram Fischer QC, Rex welsh QC, Sydney Kentridge (later Sir Sydney Kentridge a member of the English Bar) and others to act as researchers.

Exceptions to the Indictment were upheld which compelled the prosecution to separate the accused.

Eventually thirty two were indicted and the charges against the others were provisionally and indefinitely postponed. Nelson Mandela was one of the main witnesses led by Sydney Kentridge. His evidence was lengthy. He stood by the principles set out in the Freedom Charter. He was cross-examined by the prosecutor who asserted that it was a “communist inspired document” which Mandela denied.

The Presiding Judge Rumpff was consistent in his patriarchal and apartheid views in questioning Mandela. He put to him that giving the vote to uneducated people (the Blacks) is like giving the vote to children “isn’t it on much the same basis, if you have children who know nothing and people who know nothing?”.

Anthony Sampson who wrote Mandela’s biography says “Mandela was quietly furious, all the more so since his own father and two elderly men among the accused had never been to school”. Judge Bekker frequently showed that he did not share Judge Rumpff’s views. He wanted to know from Mandela whether he thought that a compromise could be reached between Black and White. Mandela’s answer was that “yes, there could be but the White Government had over fifty years not put anything on the table”.

Towards the end of the trial in 1960, at Sharpeville the police killed over sixty and seriously wounded over two hundred protestors against the Pass Laws. The reaction of the majority of the people in South Africa and the world at large was overwhelming.
A state of emergency was declared. The African National Congress was declared an unlawful organisation. The leaders of the Liberation Movement including the Treason Trial accused were detained. Their lawyers withdrew from the case. The court refused an application to postpone the case until the emergency was repealed.

Nelson Mandela and the other lawyers amongst the accused took over. Oliver Tambo and some other leaders fled the country.
The ANC refused to disband itself and went underground. It was decided that despite the peaceful policy for over fifty years, the time had come to meet violence with violence. Umkhonto we Sizwe (The Spear of the Nation) was formed to engage in sabotage against symbols of apartheid but not against human beings.

Nelson Mandela was Umkhonto’s Commander in Chief. He operated in underground activities. He earned the title “The Black Pimpernel”. He toured the African countries and the United Kingdom to seek support for the Liberation Movement. He returned and was arrested and tried on charges of leaving the country unlawfully, incitement and disobeyed his banning order. The lawyer was again an accused.

He decided to conduct his own defence. He appeared in a Xhosa Leopard Skin Karros which he described as “literally carrying on my back the history, culture and heritage of my people.” For good measure his wife Winnie led a group of women in Pondo dresses.
Mandela did not dispute the facts but spoke from the dock of the discriminatory laws that he and the majority of the people of South Africa suffered. He asked the magistrate to recuse himself because he could not face a fair trial before “a White magistrate confined by a White prosecutor and escorted by White orderlies”.

The trial was held in the same converted synagogue in Pretoria and attracted many supporters to sing his praises as well as local and foreign journalists. These journalists documented it, so as to tell the world of the plight of the people of South Africa.

He described the democratic, peaceful life of the tribal society which he had been told of as a child, with “no classes, no rich or poor and no exploitation of man by man”. This is the history which, even today, inspires me and my colleagues in our political struggle.

He went on to say “Prosperity will pronounce that was that the criminals who should have been brought before the court were the members of Government”.

The Afrikaner prosecutor P J Bosch who visited Mandela in his cell told him “For the first time in my career I despise what I am doing. It hurts me that I should be asking the court to send you to prison”.

The Prime Minister John Vorster had warned the media not to publish what accused persons told the court. Most censored what Mandela had said.

He was sentenced to five years imprisonment and sent to Robben Island, the Makronisos of South Africa. A year later he was brought to Pretoria in his prison uniform as accused number one in what has been described as the Trial of the Century or the Rivonia Trial. Walter Sisulu, Govan Mbeki and seven others arrested were charged with sabotage punishable by death.
He had lived at the house on Liliesleaf Farm where the others had met in which numerous documents were found implicating him as the leader of the underground.

The arrests were hailed by the regime and its leaders predicted that the death sentence would inevitably be imposed and executed.
When asked to plead to the charges they said that the Government should be in the dock and not them.

Nelson Mandela chose to make a statement from the dock. The final paragraph became world famous: “During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony with equal opportunities.: He paused and looked at the Judge: “It is an ideal which I hope to live for and achieve.” Then dropping his voice, he concluded: “But if needs be, it is an ideal for which I am prepared to die”.

The speech was published throughout the world. The Rand Daily Mail published the whole of it in defiance if the Government’s warnings that it should not.

Walter Sisulu entered the witness box, led by Bram Fischer and cross-examined by Deputy Attorney General Percy Yutar. He was followed by Govan Mbeki and others. They confirmed that they participated in the struggle for freedom. James Kantor and Rusty Bernstein were acquitted, the others were convicted. They expected to be sentenced to death.

The celebrated author Alan Paton, the leader of the Liberal Party, was called as a witness in mitigation of sentence. He said that he knew Mandela, Sisulu and other leaders of the Liberation Movement. They were the legitimate leaders of the oppressed people in South Africa. The day would come when the Whites would have to negotiate with them. If they were sentenced to death and were executed, the Whites would have no one to negotiate with. Yutar accused Paton of being a communist or at least a fellow traveller but did not challenge his views.

Bram Fischer asked Harold Hanson QC to deliver the plea in mitigation.

The night before judgment was to be delivered Nelson Mandela noted what he was going to say when he was called upon to say anything before the sentence of death was imposed. He said that he was prepared for death. He had in mind the words from Shakespeare “Measure for Measure”:

“Be absolute for death; either death or life shall thereby be the sweeter”
“1. Statement from the dock;
2. I meant everything I said;
3. The blood of many patriots in this country has been shed for demanding treatment in conformity with civilised standards;
4. *illegible;
5. If I must die, let me declare for all to know that I will meet my fate like a man”

He and others were sentenced to life imprisonment. It was not necessary for Mandela to read them. There was speculation as to why they were not sentenced to death. Judge Quarles de Wet was not a “hanging judge”. The Governments of the United States and the United Kingdom probably warned the South African Government that it would be difficult for them to do business if the death sentence was imposed.

The United Nations had passed a resolution calling for their release as had the Non-Aligned Movement. The world at large and more particularly its youth regularly protested against the policies and actions of the Apartheid Regime.

The apartheid government probably sent a message to the Judge not to impose it, despite its calls for it in the past.

Even as a prisoner for twenty seven years he remained a steadfast supporter of the “Rule of Law”. He was confident that in is lifetime there would be fundamental change.

After his release he was elected as the first President of the Republic, he refused a second term in order to set an example for other states, particularly in Africa where multi term leaders would not relinquish their power.

He was a revolutionary leader, a man of peace, but also he avoided a bloody civil war in bringing about fundamental change.
Revolutions are often led by violent fanatics. They are self-opinionated, fuelled by dogma, race, religion, self-interest and intolerance.
Nelson Mandela a different sort of revolutionary who managed to persuade the majority of the 40 million people speaking more than eleven official languages, members of as many faiths, racial origins, both rich and poor to strive for a common future and reconcile ourselves despite our ugly past.

He believed that the majority of the people of the world yearn for peace, freedom, equality and dignity for all.

He knew that a minority of fanatics sometimes win. They claim to be patriots but detest those whose skin is different to theirs, insisting that their faith is superior and that they are the saviours of the nation to rule forever. They are contemptuous of democratic theory and government. They also promise to make fundamental changes, to put an end to poverty, criminality, redistribute wealth, improve the education system to soon hold free and fair elections, stop the inflow of refugees and protests on the streets and squares and bring both law and order.

Fanatics in the name of their religion commit mass murder, condemned by their fellow religionists and the world at large. Some movements use the atrocities as a reason to deprive the perpetrators and even suspects of the universal Human Rights guaranteed to all in the United Nations Declaration, the Charters of a number of continents even their own constitutions and the provisions of their criminal justice systems.

Nations must be built by people. Nations stand and fall by the conduct of the people that lead them. Great leaders limit their power before they take it and great leaders step aside, even if their work has not finished. For great leaders, like Mr Mandela, know that they are only human and susceptible to all of the flaws of the human condition. Great leaders do not put themselves in a position where they can corrupt.

Perhaps we should be guided by the words of the chorus in Sophocles Antigone:

“The reasonable actions are best in the world and the wise man remembers to be reasonable and respect the gods.”
Nelson Mandela played the role of Creon whilst a prisoner. A good lesson as to how to avoid tragic consequences by being dictatorial.

It is my honour to be able to say that I lived in the time of Nelson Mandela and was his colleague and friend for over sixty years.

Thank you.

– By