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Africa 90 (1) 2019: 1–25 doi:10.1017/S0001972019001050 1 2 Apartheid South Africa’s segregated legal field: 3 black lawyers and the Bantustans 4 5 6 Timothy Gibbs Q1 7 8 9 Introduction: Kaiser Matanzima’s proposition 10 11 In 1943, while Nelson Mandela was studying law at the University of the 12 Witwatersrand, he was urged by his kinsman and then close friend Kaiser 13 Matanzima to return to the Transkeian Territories, where both men had been 14 born, brought up and schooled. Matanzima suggested that the cousins should open a law practice in Transkei’s main town, Mthatha. ‘But Mandela demurred: 15 ’ ’ 16 his place was in Johannesburg (Lodge 2006: 23). In the coming years, the cousins 17 paths diverged. Mandela made his name as a Johannesburg lawyer, forming a 18 prominent law partnership with Oliver Tambo, their busy legal practice one of the centres of nationalist politics in the city. In these accounts, ‘struggle 19 ’ 20 lawyers such as Nelson Mandela typify broader patterns of anti-colonial 21 nationalism and legal activism forged within the circuits and urban centres of 22 the colonial/settler state (cf. Dezalay and Garth 2010). By contrast, Matanzima abandoned law for traditional leadership, and then 23 ’ 24 drove Transkei s chieftaincies towards tribal, Bantustan self-government in 1963 – a cornerstone of apartheid’s project of separate development. Yet Matanzima’s 25 ’ 26 proposition to Mandela was not just a whimsical counterfactual. South Africa s patterns of settler colonialism – both the concentrated patterns of ownership in 27 – 28 the industrial economy, and an acute history of racial discrimination persistently 29 excluded African lawyers from the prosperous circuits of commercial and legal 30 practice across the twentieth century. Consequently, the majority of African 31 lawyers were educated and trained, and many made moderately prosperous ‘ ’ 1 32 careers, in the Native Reserves . Indeed, Transkei was the hub of the black legal 33 profession. In 1970, Mthatha had as many African lawyers as Durban and Johannesburg combined – a direct consequence of the rapid growth of its bureau- 34 ‘ ’ 35 cracy and the commercial opportunities offered by Bantustan independence ruth- 36 lessly, brutally and corruptly pursued by Matanzima (Gibbs 2014: 36; Uys 1970). Such legal legacies carry into the post-apartheid era. Two-thirds of the African 37 – 38 justices who have sat on the bench of the post-apartheid Constitutional Court – 2 39 the acme of the profession practised or trained in the Bantustans. 40 41 42 Timothy Gibbs is a lecturer in African history at University College London and a research asso- 43 ciate of the National Research Foundation Chair in Local Histories, University of the 44 Witwatersrand. Email: [email protected] 45 1This pattern can be traced to the turn of the twentieth century: George Montsioa (born in 46 1885), one of the founders of the African National Congress in 1912, was the most professionally successful of the first generation of African lawyers, drawing his clients from landed, Christian, 47 chiefly lineages (Moguerane 2016). 48 2Namely, Chris Jafta, Pius Langa, Mbuyiseli Madlanga, Tholakele Madlala, Mogoeng 49 Mogoeng, Yvonne Mokgoro, Sandile Ngcobo, Bess Nkabinde and Thembile Lewis Skweyiya. © International African Institute 2019 2 Timothy Gibbs 50 The purpose of this essay is thus to trace the ambiguous role played by the 51 Native Reserves/Bantustans in shaping the African legal profession in South 52 Africa.3 How did African lawyers, persistently marginalized by century-long pat- 53 terns of exclusion, nevertheless construct an elite profession within the confines of 54 segregation and apartheid? How might we link the histories of lawyers inside the 55 Native Reserves and Bantustans with the better-known nationalist historiography 56 that emphasizes the role of activist ‘struggle lawyers’ in the cities? And what are 57 the implications of South Africa’s segregated history for debates about the ‘decol- 58 onization’ of the legal profession in the post-apartheid era? In short, what was the 59 relationship between lawyers and liberation? 60 61 62 63 Debates: elites, class formation and the professions 64 65 Often, the narrative about South African lawyers focuses on politics: it tells of the 66 struggles for political emancipation and to defend rights (Abel 1995; see also 67 Halliday et al. 2012). More broadly, Sarah Dezalay (2015: 10) argues that ‘ 68 lawyers across the African continent have [either] been idealised as protectors … ’ 69 of liberty or condemned as handmaidens of corruption . This article, by con- ‘ 70 trast, looks to contribute to an emerging historiography that studies the prosop- ’ ‘ 71 ography of the colonial legal spaces in order to understand how law relates to the fi ’ 72 eld of state power (Dezalay 2015: 12; see also Dezalay and Garth 2002: 4). 73 In engaging with these debates, I intervene in three broader historiographies. 74 One set of arguments emphasized the close connections between black lawyers fi 75 and anti-colonial nationalism. Peter Walshe (1970: 36) was the rst to note that 76 African lawyers played a leading role in the early African National Congress ‘ … 77 (ANC), arguing that they represented the ideals of the new African elites striv- ’ 78 ing for personal [and professional] as well as national advancement (see also ‘ 79 Odendaal 2012). Many more South African legal histories and struggle ’ 80 memoirs have recounted the interwoven biographies of a tight-knit coterie of – – 81 Johannesburg lawyers most notably Nelson Mandela whose professional fi 4 82 and political lives were rst spun together in the 1940s and 1950s. Much of this 83 writing on nationalist lawyers, both in South Africa and elsewhere on the contin- 84 ent, idealizes the values of activist lawyers (Abel 1995; Broun 2012; Ngcukaitobi ’ 85 2018; Sachs 1973). One account of Nigeria s lawyers, for instance, describes them ‘ fi ’ 86 as the ghting brigade of the people (Pue 2016: 480). 87 At the other end of the spectrum, a second strand of research takes a far more 88 sceptical view of the entanglement of African elites in the workings of state power. 89 These arguments became important inside apartheid South Africa as radical, 90 class-based analyses focused on the corrupted black elites co-opted into the apart- ’ 91 heid system. Kaiser Matanzima s Bantustan project was seen to exemplify these 92 processes of co-option and class formation. Investigative journalists exposed the 93 94 3 – 95 Karekwaivanane (2016:5960) and Luckham (1978) discuss how structures of segregation shaped the legal professions in Southern Africa (Zimbabwe) and West Africa (Ghana). 96 4On Johannesburg’s lawyers, see Basner (1993), Bizos (2007), Broun (2012), Callinicos (2004), 97 Klingman (1998) and Ngqulunga (2017). Kuper (1964: 234–8) writes on Durban’s mid-century 98 lawyers. Lawyers and liberation in South Africa 3 99 role of crooked businessmen and commercial lawyers in the Bantustans (Streek 100 and Wicksteed 1981). Roger Southall’s landmark South Africa’s Transkei (1982: 101 125) argued that a burgeoning African bourgeoisie – government officials, 102 teachers, traders – was formed because of access to the expanding Bantustan 103 state. (The same could be said of Bantustan lawyers.) Looking more widely 104 across the continent, there is a wider body of literature that portrays lawyers in 105 other regions of Africa as emissaries of empire and ‘mercenaries of neo-colonial 106 interests’ (Shafari 2007: 1061; see also Luckham 1978, Ncube 1997).5 107 My article seeks to nuance these approaches, taking impetus from a new seam 108 of research that has sought to provide a more subtle account of how elites have 109 shaped processes of politics and state formation (Adebanwi 2014; Booth 2009; 110 Werbner 2004).