Azhar Cachalia LRC Oral History Project 30Th November 2007

Azhar Cachalia LRC Oral History Project 30th November 2007

Int Azhar, thank you very much for doing this interview on behalf of SALS. It’s an Oral History Project of the LRC. I was wondering whether we could start this interview by talking about your formative influences, growing up in South Africa,...what were your experiences, and how that may have had some influence on your career path in terms of becoming a lawyer.

AC I was born into what one would call a middle class Indian family - a very politicised family. I had a great grand uncle who was a very close associate of Mahatma Gandhi. In his book, ‘Satyagraha in South Africa’, (Mahatma) Gandhi refers specifically to him. His name was Ahmed Cachalia. And he was involved in various campaigns at the beginning of the previous century against the British in South Africa. Recording continues…

Int So Azhar, you were mentioning your grandfather, Ahmed Cachalia.

AC Yes, he was, well actually he’s sort of not a grandfather but a great grand uncle. He had two sons Maulvi Cachalia and Yusuf Cachalia. Both became very active in the Congress movement in the 1950’s and during the Defiance Campaign of 1952, which was, as you may know, a campaign against various racially discriminatory laws that the National Party government was then trying to introduce and which in fact was introduced subsequently. Maulvi Cachalia was forced to leave the country in the early 1960s and became the ANC’s representative in India. And Yusuf Cachalia was banned from around 1961/62 until well into the 1970s, he was banned and house arrested. So I grew up against that background. My father and his brother Essop (Cachalia) also spent a brief period in jail during the Defiance Campaign. They spent a lot of time teaching us as it were, oral history about the family and the family’s association with people like (Nelson) Mandela and (Walter) Sisulu and others. Also, I think growing up in an Indian community and an Indian Group Area, fairly closeted, one could, where one could then begin to observe the stark differences between how people lived, what the effect of apartheid was. I think you know what helps is when your parents give you the initial explanation and interpretation, then you’re able to look and see for yourself. I think all of that had quite a…created a very strong impression on me. And then towards…in the late 1970s, that was when…in my late teens, the 1976 uprising happened …I suppose all the oral history and then what happened during and after 1976 drove me and my younger brother Firoz into political activism.

Int Was your father politically active?

AC My father was a medical practitioner and he became politically active also in the post-’76 period when we revived the Transvaal Indian Congress, and participated in campaigns to oppose what was then the government’s reform policies aimed at co- opting Indians into the Tri-Cameral Parliament. And my father then became involved 2

again. But yes, that’s when he became involved once again. He left the country to study medicine in Edinburgh in 1955, and I was born in Scotland a year later, 1956. He left really also at that stage at Wits University which was ostensibly meant to be a liberal institution, but he was…you know, there was a quota for the number of students who were not white. This was government policy. Wits wouldn’t take him for medicine. He did a BSC and they still wouldn’t take him, and so yes, he left the country. And that’s how I was born in Scotland, with my two younger brothers.

Int Right. And so, how old…did you live in Scotland for a while before you came…?

AC I lived there for the first five years of my life. We came back to the country in about 1961, ’60, when South Africa was declared a Republic.

Int I know this might be tricky, but I was wondering whether those early years spent in Scotland, did you have a sense of your surroundings, and coming to South Africa, was that starkly different? Or you don’t have memories of that time?

AC I don’t have memories of the politics. I have, I think memories would put it strongly, I have images. And those images would have been reinforced by my parents over the years, that: Well, when you were in the snow you did this. And then they’d show me a photograph. So sometimes you’re not quite sure whether the images are memories or whether you’ve constructed something after the years. But yes, I think I have memories of Scotland…I think I was very happy.

Int So you got back to South Africa, you grew up in a, you know, a typically sort of segregated area as such, and then you…in 1976 were you still in high school or had you started university by then?

AC No, in 1976 in fact, there was a bit of an interlude in my life; because In 1975 where I did BSc at the University of Durban-Westville. I didn’t (do) too well. End of 1975 I decided to leave and I came back home for a year. I spent about half the year (1976) teaching at a local…half the year doing nothing and half the year teaching at a local primary school. And yes, that’s when 1976 happened. And then the following year I went to Wits University.

Int Right. And what did you study?

AC Initially continued doing BSc for a year. It shows you I’ve sort of…three years utterly confused, young soul…and then I switched in 1978 to a BA Law. I think doing BSc was largely because of my mother’s prompting: Why don’t you do medicine like your father? Those were not the days when you had sort of proper career counselling guidance and ja, I guess that’s why I sort of took the wrong path for a while… 3

Int It happens to all of us. (Laughs) I was just wondering, in 1976 you mentioned how you became…politically conscientized as such. I’m wondering you, what were the particular events that led to that conscientization?

AC I’m not sure, I mean, I think I was politically conscious for a long time before that, so I mean, I can recall for example, in 1971, during the tenth anniversary of South Africa as a Republic. There were government sponsored celebrations at our schools. We had to sing the national anthem, and I can recall agitating among a few of my classmates not to sing the national anthem. This wasn’t our anthem, so that would have been my early high school years. So I think there was always a consciousness. What 1976 did was in a sense give it a concrete expression to what the very real consequences of apartheid were: young kids taking to the streets; and the police acting in their characteristic brutality; so I think it propelled me really into another, into a whole sort of other area of activism. I then thought and felt, well, I too have to do something about this, it’s not just about personal acts of solidarity, you needed to do something to change things, and in 1976, I was twenty, so I suppose I was ready, (laughs) ready to cause trouble.

Int So you said that you started BA Law. Did you have any involvement in student politics?

AC Yes, in 1977 I joined the student movement in my area. In fact, not joined, I was really one of the sort of founding members of the student movement, all the students in the area who were responding to the events of 1976 and we formed the Benoni Student Movement. And in 1977 in fact, yes, ’77, that’s right, that’s when we formed the student movement. In 1978(10 June) I was arrested for the first time for distributing leaflets at a school. I was detained for a week and was treated badly by the security police. I was put in a boot of a car and taken to a mine dump. They threatened and assaulted me. It was a very, very frightening experience. It was sometime around 10 p.m. if I say being sort of disturbed from your middle-class calmness and sort of taken into a boot of a car.

Int …at Wits, did you…?

AC And then, at Wits…as I say, that was in the community where I lived in, in Benoni, and then when I went to Wits University, I joined the Black Students Society in 1980 became its vice president. So that was, yes, so I think there were a few things happening. We were, in fact, we were being active both in communities and at university. So in the community, there was a student movement and together with that, we began doing community work. We setting up a bursary scheme for disadvantaged students from other areas and we began to organise the community around bread and butter issues: poor living conditions such as high rent and electricity. What we were really doing was linking the people’s living conditions to their, their political emasculation, and we were drawing the connections that these adverse living conditions could change only through struggle. Whether people were protesting against high rentals, or students were demonstrating against inferior education we were drawing those connections between students and the community. 4

And yes, so, so there was, as I said, we were working in the community and at university. And then also, we were working, began working at an overtly political level so we became members, many of us started up in fact, organisations like the Transvaal Indian Congress. And then from there, I moved on in the 1980’s, whilst being a Congress member I was elected national treasurer of the United Democratic Front in 1985 and I remained an office bearer in that capacity until its demise in 1991, three years before our first democratic election.

Int I just want to take you back a little bit. You mentioned this rather traumatic incident of being detained. How long was that for and what was the reaction of your family in relation to that?

AC Well, my first detention was, as I said, in 1978, It lasted a week. It was very traumatic. I suppose more traumatic for the family. I was a bit scared. The police first searched our home and then arrested me and drove of with me in their car. As I said earlier it was about 10p.m. Some distance from my home they made me get out of the car and told me to lie down in the boot of a car. And I wasn’t afraid, and it’s not because I of any misguided sense of bravery, but I can recall being more concerned was…you know, you’re obsessed by…your mind becomes very focused and what information they were going to try to elicit from me than whether they were going to harm me physically. When the car reached the mine dump I was still lying in the boot in total darkness. I could hear voices outside, and then I started wondering where the hell we were? When they opened the boot, and I looked around, it was completely dark, nine o’ clock in the evening. The police then marched me to the top of this mine dump, perhaps 20 meters from the ground. They first placed a hood over my head. Something equivalent to water boarding. They put a smelly wet bag over my head and then choked me. While subjecting me to this treatment they hit in the solar plexus. Their purpose was more, I think, to engage in a kind of psychological warfare rather than inflict pain on me. It was, I shouldn’t say it wasn’t painful because they, you know, they choke you and you have this sensation that you’re beginning to see stars, because you’re losing consciousness and then they release the pressure around your throat. What they really wanted to know was who was responsible for distributing leaflets in the area.. We, i.e. members of the student movement, had printed leaflets, which we thought were fairly benign. The leaflets reminded the reader that many people had died or been detained since 1976 and that there was a need to express solidarity with the victims of Apartheid. After being subjected to this treatment for a few minutes I admitted to being responsible for the production and distribution of these leaflets. I thought that was over, it’s fine for them. It’s hardly illegal. But then a few of them started having this conversation and then they came back to me and they then put the bag over my head again and they wanted to know about, some other leaflet that had also been distributed. I didn’t have the foggiest idea what they were talking about. And I think that was the first time that evening that I panicked, because, as I said, I didn’t know what they were talking about. Now usually if you think you have information, then you have your own, you think you have your own pain levels or when you will talk, but when you don’t know what they’re doing, then, then you in fact feel you have very little control over that situation. So they did it again and as they then said to me I must talk, and I said I don’t know what they’re talking about, and as they again tried to pull the bag over my head I managed to break loose and grabbed one of the policemen’s hands and I said: Look, you know, I’ve admitted to something, I’ll admit to anything else but I just, I really don’t know what you’re 5

talking about. And maybe because there were others who they had also arrested that evening they decided to stop subjecting me to this treatment. They then took my brother, Firoz (Cachalia), who was also arrested, and gave him similar treatment, to corroborate what I had told them. It transpired of course, that on the same evening, that we had distributed these leaflets, some other group also distributed some very inflammatory leaflets.

Int So they got that mixed up?

AC And the cops got it all mixed up.

Int Right. They were very effective clearly. I was just wondering, it’s interesting, when you got to Wits, you became involved in SASO. Was NUSAS quite involved…?

AC It wasn’t SASO, because SASO was banned. SASO was banned with…in 1977, the October 19 crackdown…

Int Sure, with Steve Biko’s death…

AC Yes. So I got involved in an organisation called the Black Students Society and then we formed what was then the replacement for SASO, was an organisation called AZASO, which was the Azanian Students Organisation. That was the umbrella body for…for basically black student organisations on various campuses.

Int I’m just wondering, you know, NUSAS, how…what was the relationship between AZASO and NUSAS and ideologically, how different were the two organisations?

AC I think, that under our leadership, we moved the two organisations very closely. In fact, we created a very strong non-racial ethos. I think we understood that we were working with, in different racially defined constituencies. So we maintained different identities and we accepted that, that to reach out to a white student constituency, you’d probably need different strategies and tactics. But I think we became, we worked very closely together. So for example, when I was Vice President of the Black Students Society, I was banned at the same time that the then President of NUSAS was Andrew Boraine, was banned and also, the president of the Wits SRC Sammy Adelman was banned. So we worked closely together. It’s something I think that the in this country has regressed in the last few years because we had a very strong sense of non-racial solidarity, which moved us away from the period of the 1970s, with the more assertive black consciousness tradition which was, which emphasized the need for separateness and self reliance. I think we considered ourselves, I mean we then moved beyond that, we were more explicitly Congress (ANC) in our orientation as opposed to black consciousness of the PAC and Azapo. . 6

Int Ok. So you were doing BA Law and at what point did you finish and were there subsequent detentions during that period as well?

AC Yes in 1981 I was arrested again. That was in my third and final year of BA. I was arrested whilst in the middle of preparations for my June exams. There was always a problem around June, June the 16th, , that we were either running away or the police were going to detain us to pre-empt any activity. So yes I was detained again in 1981 together with my brother. We were kept for about, just over three weeks. And then, then we were banned under the Internal Security Act. Effectively what that meant was that we were prohibited from participating in any, any organisations. We could not be in the presence of more than two people at any one time. We could not communicate with any other person who was banned. My brother and I were given special permission to communicate with each other. We lived in the same house. That of course just I think made us sort of perhaps then, more careful and more dangerous for the State. Because I think before then you’re still young and there’s a bit of bravado and so on. I think when the stakes became much bigger, I don’t…I mean we weren’t scared off; we became perhaps more disciplined in the way we worked politically. No high profile activity but political organisation out of the public eye. I completed most of LLB in ’81 and ’82. And in 1983 went to the Legal Resources Centre where I had been offered a fellowship. That year, while working at the LRC I completed one or two courses that were still outstanding for my LLB.

Int How did you…what was the trajectory that led you to the Legal Resources Centre; in terms of how did you get to know about them?

AC I applied for the fellowship because I wanted to do public interest law. Coming from my background you could understand that that was completely natural. And so yes, I applied for and was offered the fellowship. And yes, that’s how I ended up at the LRC.

Int So you got to know about the LRC because it was well known, in the legal fraternity…studying as a law student?

AC Yes, I would have heard of the work that the LRC did, public interest law.

Int Tell me about that year and what that was like at the LRC?

AC Well, I was still banned…in 1983. And I think for me, what was very...very refreshing and enlightening and encouraging about the LRC was that I think they did the sort of, they did public interest work but they did it very professionally and with a great sense of commitment. So I think I learnt a strong work ethic there.. I learnt…my first bit of letter writing…you know, uh, my first encounter with the law practically, and encountering, you know, the way very, very ordinary people, simple people, poor people had to confront the law, how poor people struggled when they had their furniture dispossessed, and could not make payments, that’s a branch of consumer 7

law, did they have any rights, what protections…and I think you know, to be able to write a really good lawyer’s letter for a very ordinary human being who can afford nothing, but to do it, I think to do it well, was something that in a sense, that for me, you know, the law could be made accessible to very ordinary people. And I think they did that, and we did that. I was a mere fellow, a student. I worked with some very good lawyers. I worked with Arthur Chaskalson and Geoff Budlender was my supervisor. He was a wonderful person to work with and we subsequently worked in the government as Director General thereafter, when we both took a brief respite from the law. I received exposure to some very interesting cases. It was encouraging to see that you would actually win victories against unscrupulous businesses and also against the government.

Int I’m trying to place the time you were there. I was wondering whether given that the LRC utilised the test case approach, I’m wondering whether you were there subsequent to the Rikhoto case?

AC I was there at the time of the Rikhoto case.

Int I’m wondering whether you could talk a little bit about that?

AC You know, I don’t remember it too well, because I in fact wasn’t involved in the case myself. But just the…the immense excitement, you know, of it, because in its impact was dramatic. I mean, there were just large, large numbers of people who had…who overnight had rights, you know, and it created a great problem, it created a great problem for the government, because they then had to decide, the government had to decide whether they could of course, just remove those rights but it would have created certain political problems. One of the problems, you know, they were creating, they were trying to find a way at that time, of giving black people who lived in urban areas, a greater stake in the political system. So to divide, let’s call it urban blacks from rural blacks they said we would have, exercise their political rights in the homelands. And that somehow creates some sort of vested interest, short of political rights for black people in the urban areas. So of course they didn’t like what had happened with that decision but they were…they were then confronted with the horns of a dilemma. And so yes, I think that became a, that was a very important victory, so I think that that’s the only impression that I have. You know, I mean, the possibility that you could win an important victory like that.

Int I’m wondering whether given that you were also part of the Fellows program, and my understanding of what the LRC was trying to do was to encourage young black lawyers to undertake public interest law, and you were one of those young black lawyers. I’m wondering whether you were there at the same time as Mohamed Navsa, whom I’m due to interview next week?

AC Yes, Mohamed (Navsa)…in fact, we work together now in Appeal Court as judges. But Mohamed (Navsa)…I think when…we worked together but when I was a Fellow, he had already started working there, so I think he had been admitted as an advocate 8

and I think it was his first or second year at the LRC. He may have been a Fellow, I think he was a Fellow, and then, but in the year that I was there, I was one of a few Fellows and he had moved, yes, as I said, he was then working full time.

Int I’m wondering whether at the time you were there, race was an issue in terms of a dynamic within the organisation, given that there were black Fellows and a lot of the actual key staff were white?

AC Look, there were not, remember that there were… interruption Recording continues AC When you say it was to give black Fellows a chance, there were, there were white students who also became Fellows because they also and still do contribute positively to this society. There were, however, more black fellows than there were whites. You know, whether it was an issue; I can tell you this, that I was not aware of any issue at the time that I was there. Sometimes these things are about how individuals feel about things and how you perceive somebody else’s reaction. Perhaps because I had worked so closely with white students and quite frankly many white activists who became close comrades, I never looked at things through a racial prism, ever. I cannot ever say that I had any impression of racial tension at the Legal Resources Centre or if there was I either don’t remember or was not aware of it. I think I was quite happy at the LRC and got along with everyone.

Int Good for you. (Laughs) I’m just wondering, in that year that you were there, in terms of public interest law work, do you feel a sense of, that you really came to grips with what that was, through the LRC, and what impact did it have on you in terms of your subsequent career?

AC Yes, I did come to grips with it. Well, when you say come to grips with it, I think I understood it. I understood its importance. And I’m actually saddened that major law firms place very little emphasis public interest work.

Int What about the universities? Has there been a component of public interest law work?

AC Well, yes, I think they do, and they do some very good work, like the Centre for Applied Legal Studies. That’s where it gets its name from, that it applied it, and some of the, I think, lawyers who were associates of the LRC and the university in fact did public interest and labour litigation through the Centre for Applied Legal Studies, but it’s the university that in a sense shoulders or carries that burden and in fact, I think that they’re able to raise, they do raise funding elsewhere, but ja, I…I think it is something I would like to see, sort of more of it happening. I mean, for example, I think there’s a great pressure now transform the legal profession. When it comes to law firms, they mean that there needs to be more black people employed. Now that is self evident, that must happen, but I think that for me, transforming an institution means, among other things, making the institution more receptive to, to really what the society is about and the problems of the society. It’s not about, quite frankly, 9

transferring tranches of capital from white lawyers to black lawyers. And so I think we’re missing a few things. I think that at some levels there is only what I would call a skin deep transformation going it’s not fundamental, it’s not substantive.

Int I’ll come back to that. I’m wondering, you worked… at the LRC during the eighties, this was a particularly turbulent time, and I’m just wondering, after that year, what happened and where you went from there?

AC Well, after that I then joined the, I got articles at a law firm: Ismail Ayob & Partners in 1984. He was Nelson Mandela’s lawyer. I have a very strong recollection of the fact that despite the fact that I had letters of recommendation from Arthur Chaskalson, I could not get in to any of the mainstream establishment firms.

Int Why do you think that was?

AC Why? Well, I’m not quite sure whether they were ready for, I mean, they would hardly employ, at that time, hardly employ blacks. I was also at the time when I was applying, I was banned, so here’s a very dangerous political activist applying. So in fact, I mean, mainstream, liberal or not, mainstream law firms were not going to be receptive. To be fair, I had never had, part because of a lot of political activism; I had never had the chance really, quite consciously, to sort of spend a lot of time getting the greatest grades. Whether some of them thought that my grades were not good enough, I don’t know..

Int I’m curious that the LRC employed you, took you on as a Fellow, given that you hadn’t finished your LLB and also that you had been banned. I know that they were quite careful not to attract undue attention from the security police. Do you have any sense of what that was about?

AC I’m not quite sure. I applied, I was called in for an interview, and I was employed. I had no idea that…there certainly were no strings being pulled, not that I was conscious of, certainly. Nobody put in a good word for me from outside…

Int The reason I say that is it seems to me that that didn’t seem to be an issue for the LRC, the fact that you were banned.

AC Well, I think that the one thing that was made clear to me, I’m not sure whether it was the interview or whatever, but, look, while you are here, you’re a lawyer and so it was…I think I was acutely conscious of the fact that this place was not simply going to be a cover for my political activities, so in a sense that my politics was going to be separate, and it was. I, it did not; well I tried not to let it interfere with my work. It was difficult because I mean, I would have been under surveillance, there were those 10

sorts of issues, but nonetheless, I sort of, I did my work. I tried to hold my end up as an aspiring young lawyer.

Int So your time at Ismail Ayob, what was that like?

AC I think I was lucky there. It was a black law firm. Ismail Ayob had a very strong sense that, that…he would do things properly, so this was not a firm that didn’t run professionally or efficiently. It ran very professionally, very efficiently. And so I think I was grateful for that experience. What was a bit of an eye opener is that he taught me how to write fees, he drummed it into us that time was money. So every time one answered a ‘phone call you were required to record this in your fee book. But beyond fees, I think I learnt about hoe to administer a practice. Whether you were a good lawyer or not, really depended on how much you did yourself.

Int Did you learn good lawyering at the LRC?

AC Well, I mean I think I was exposed to really good lawyers and so I observed, I learnt, I think what I did realize was that there was a standard. What I saw that there was a standard of thoroughness of work, of a professional work ethic. To say I learnt, well maybe in later years, but I think as a formative learning experience, I certainly had a sense of what was a standard, what was good, and what was rubbish and I was grateful for that experience.

Int So – Ismail Ayob- how long were you there and what happened thereafter?

AC There, I was there between 1984 to 1988, four years four years. I completed my articles there. I was admitted as a partner and I then left to join the last law firm that I was at, which was Cheadle, Thompson & Haysom.

Int That’s quite an impressive law firm.

AC Mmm. Some of my best years were at Cheadle, Thompson & Haysom.

Int If you could tell me a little bit about that? How did you come…did you just apply?

AC Well, what had happened was we, there was a bit of a fall out at between Ismail Ayob and what I’d call the younger partners. And I’d prefer not to go into the detail of what happened.

Int Sure. 11

AC But at the time I was involved in a very, very difficult, controversial political trial up in Messina. It was called the Messina land mine case, where I defended two ANC guerrillas who were charged with various counts of murder and terrorism. They had had planted land mines on the border as part of the ANC’s armed struggle. Some of those land mines detonated and killed some people including civilians…terrible cost to human beings. The campaign devastated some families there. I was the instructing attorney in this highly charged and conservative border area. A very conservative judge JPO Devilliers was appointed to hear the case. He was neither sympathetic to my clients or to me. I had heard that he considered me to be a terrorist just like my clients.

Int I take it that referred to you?

AC That referred to me. So that was the sort of, that was the kind of atmosphere in which… interruption Recording continues

AC …detail on that trial unless you’re interested…

Int Of course.

AC Yes, so what happened was while the trial was running, this dispute occurred and this partnership just couldn’t continue and I needed a place to house this trial and to carry on. I mean, I had to defend these people to the end, and I approached Cheadle, Thompson & Haysom and um, it was in 1988, and that’s when I sort of completed the trial there and I stayed on. I was offered a partnership.

Int Did you continue to take on primarily political cases while you were there, at CTH?

AC Yes, uh, ja. In fact, that was…’88, I remember when I joined them…we were still in the middle of a State of Emergency and you know, when I wasn’t in detention myself, then I was defending detainees, and I suppose, the country was in turmoil, there were lots of trials going on and so, it’s almost not even a question of choice, it just happened, that that is what I did.

Int So you were detained right through the eighties?

AC Well, on and off. It was a strange thing because you see during the eighties, well, when I say it’s a strange thing, I’m not sure why I didn’t spend the whole time in jail. 12

I was…you know, I think in part because I was a lawyer I had quite a few international contacts at the time, both through my political and my legal work. Maybe the Security Police thought that it’s, that I’m not too dangerous or maybe there was…I know whenever I was in detention they were under constant pressure from the law societies and from various groups of people, to let me go. So I spent short stints in detention, I spent quite a bit of that time being banned. Not banned under the Internal Security Act like I initially was, but I had two different bannings under the Emergency regulations, which effectively prohibited me from participating in the activities of the UDF and allied organisations.

Int Were you ever charged for anything?

AC No.

Int Right. And did the LRC ever have to put pressure to bear on…for you to be released?

AC No, in fact, in the year that I was at the LRC, I was not detained in that year. I was detained when I was at Ismail Ayob. Well, hang on, let me just think. Oh yes I was, I was detained during the declaration of the second State of Emergency in 1986. And uh, ja.

Int So you said earlier that working at Cheadle, Thompson & Haysom, were some of the best years of your life, and I’m just wondering what you attribute that to?

AC Well it’s wonderful to have a professional life, which is meaningful. My income as a lawyer in those years was very modest but earning a living was the least of my problems. I saw my professional and personal life as being integrated: my personal life, my professional life and my political life. In a sense, there was a kind of harmony. The great dilemma was how I allocated time, you know, between sort of family and profession and play and…those were the dilemmas, but as far as, as I say, my political and professional work was concerned, it was the same thing. And so that made it interesting and I think made me happy.

Int So you were at Cheadle, Thompson & Haysom for how long?

AC I was there from 1988 until 1992. In 1992 I spent a year at Yale - that was after the unbanning of the ANC. I think the 1980’s had taken its toll on me, so I needed a bit of time out, a bit of sabbatical. So I was at Yale in 1992. Then I returned and worked at Cheadle, Thompson & Haysom between 1993 and 1996, where I again was involved in all sorts of things, acting as a resource lawyer to the Constitutional Assembly, helping to draft the new Police Act, the first new Police Act of the democratic era. My colleagues and I were involved in a lot of policy related work preparing for the transition to democracy.. I had at that time quite consciously decided to, well, take a 13

more back seat politically. I don’t think I had the sort of stomach for the kind of political fights that some were engaged in to secure positions of power. So I thought, you know what, there are enough people in this country who will now want to be involved in Parliament and politics, and there’s going to be no shortage, but there will be a shortage of sort of hard skills, and so that’s what I, that’s what I did, I decided to ply my trade as a lawyer.

Int So, and up to ’96, when did you get appointed as a judge?

AC Well, what happened in ’96 was that I joined the government. After drafting the Police Act, they said: Well, why don’t you come and implement what you’ve drafted. So I said fine, and between 1996 and 1999, it was an exhilarating time, it was during the first years of the Mandela government, and I joined the government in a senior position as Secretary for Safety and Security. And my job was really to act as the sort of civilian oversight over the police. Traditionally there was a Minister of Law and Order, and the Commissioner was the Director General, reporting directly to the police, sorry, directly to the Minister. We thought that that model, and I still think that that model was a dangerous model because there was no civilian input into policy formulation The model I favoured and sought to duplicate with some differences was the Home Office in England where the police act independently of political control, but policy formulation and monitoring lies in the Home Office, and not with the constabulary. So that was the sort of model that I was, that I tried to create, on Safety and Security. So I worked there between 1996 and 1999. And in 1999, moved back to practice.

Int Again at Cheadle Thompson?

AC Back at Cheadle Thompson. There at the end of 1999 to the end of 2000, I worked at Cheadle Thompson & Haysom. Then at the beginning of 2001 I acted as a judge, for a few months and then I decided, well, I seemed to like the work, and I found it quite challenging and interesting, and uh, I then decided to take a permanent appointment.

Int So you are in the Appeals Court?

AC Well, I took a permanent appointment to the Johannesburg High Court, and that’s where I stayed for four years. And after that, I was invited to act in the Appeals Court, which I did, in 2005 when I acted, and then in October of last year, that is 2006, I was a permanent appointed at the Appeal Court

Int Ok. I just want to go back a bit….following the outline of your trajectory. During the 1980s, it seems to me that fighting apartheid from a legal standpoint, the lines and demarcations seemed rather clear. You had this ogre, the apartheid state, and then you were fighting it …rule of law and under apartheid, and I’m just wondering, juxtaposed to that, the post-apartheid years, transitional years, it seems to me that lawyers in particular, and here I’m talking about LRC as well as lawyers, such as at 14

Cheadle, Thompson, Haysom, you’ve had to take on cases that now are aimed at the government, and the government now is the ANC, whereas before within the LRC you actually had a position that dovetailed quite closely with the ANC’s position. I’m wondering how one reconciles that?

AC You know, I must…I may be a bit unusual in this, because I don’t think I have too many emotional traumas about that. And the reason for that was that I began to see very early on, that people in the ANC were ordinary human beings who were fallible, and some of them were quite dangerous.

Int Did you realize this in the 1980s?

AC Well, not in the early ‘80s, but even before the ANC was unbanned and you sort of, you know I’d had confrontations in…for example, the late 1980s, there was a thing between some of us in the United Democratic Front and Winnie (Madikizela) Mandela (Madikizela) Mandela, a story you probably have a vague idea of. I mean, Winnie (Madikizela) Mandela was subsequently prosecuted, and…

Int Is this the Stompie Sepai?

AC The Stompie Sepai matter. But I was one of the people who publicly came out against her, and then a few years later testified before the Truth and Reconciliation Commission.

Int Against Winnie (Madikizela) Mandela (Madikizela)Mandela?

AC Against her.

Int Right, interesting. What was your connection in the Stompie Sepai case?

AC I wasn’t involved in Stompie Sepai. But as an activist, it became very clear to me and to others, that Winnie (Madikizela) Mandela had become virtually a law unto her self. She…I mean she had surrounded herself with really, a bunch of hoodlums, and she was beyond any political discipline, from any organisations and so on, and then Stompie was abducted and he was murdered. And Winnie (Madikizela) Mandela was deeply implicated in this whole thing, and that, I think there were a lot of people who were wanting to, who were trying to protect her, let me give it a benevolent interpretation, that because it was the President’s wife, it would undermine the struggle terribly if, if we did anything against her because we would then be doing the enemy’s work, and the enemy had, and this was true, that the police had also infiltrated Winnie (Madikizela) Mandela’s operation, and were taking advantage, but it seemed to me that what she had done, was had crossed a line, and so I was very 15

determined that, in a sense, if all…if human rights was really at the centre of our political program, the ANC and the UDF’s political program, we could not be quiet when the abuse was coming from one of our own. And maybe it was because of my acute involvement with human rights work, I think, had I just been a political activist, without having had my legal experience, I can quite easily have seen myself as acquiescing in her, in her misdeeds. But I think, ja, I think that’s what brought it together. So I think, you know, to come back to your question about how difficult was it subsequently, for me what I find difficult is not doing it myself, what I find difficult is to see how many of my closest comrades have lapsed, in a sense, who don’t seem to have any moral compass. I think that, for me, many of the principles I learnt then, were not, they were not instruments for gaining political power, I think they had an influence on me as a person, they became integrated part of this…so you know, I mean, I could see activists, for example, being…people I know now, who were opposed to detention without trial, but who were very quick to suggest just before the election in 1994, there were a few bomb blasts in Johannesburg, with the right wing trying to disrupt the election, and the Security Police suggested to the ANC that they extend, just for the period until the election, they extend the detention without trial laws. And I remember being the only person in a meeting saying no. And whether my views were decisive or not, well I won’t be taking any credit for that, but in the event, the ANC decided it would be…it’s going to be too dangerous for them to extend the detention laws because they would be implicated in it. But I’m saying, it came fairly naturally and easily to some of these guys to say, well, you know, let’s deal with this pressure in this way. Ja, so to come back to the point, I think I find it difficult to see that, so when I see how many people have lapsed, and continue to, that they, I don’t think they have, they are driven by the kinds of things that perhaps drove them in the first instance. But I think that’s happened in all post-liberation societies, or many.

Int Yes, indeed. But do you think that your value for the rule of law as a lawyer, and particularly one interested in public interest law and human rights work, do you think that in some way has had an impact on the way you seem to perceive the situation now in the post-apartheid era?

AC Well, when you say impact,…?

Int Well, in the sense that it doesn’t really matter who is in charge now…

AC Oh, I see. Oh, absolutely. I have no doubt of that…I mean the point of the matter is that I think…well, let me put it this way: all governments are broad, they’re wide, and I think even the most benevolent have people and officials who transgress the law. With benevolent governments, those who transgress do so without the support of senior members of the government. That is to put it at its best. With less benevolent governments, they turn a blind eye, because they think, well, crime is a big problem and so if you torture a few people, but you sort of crack the syndicate, that’s fine. To the most outrageous government such as (Pervez) Musharraf in Pakistan, those sorts of people, where in a sense the unlawfulness starts from the top. What I do feel very strongly about, is that if you don’t deal with the transgressions, the minor ones, or you don’t deal with them in its early days, then that becomes a pattern of behaviour. And I think that we’re now at a stage in this country, where there’s all sorts of suggestions 16

of abuse of power by those who wield power, in very high office and instruments of the state and so on, and I think that that, that these things have to be dealt with strongly and firmly, because if they aren’t, then I think that many of the gains, many of the hopes that we, and quite frankly, many in the world put South Africa up as some sort of, kind of beacon of a successful transition, I think we have been a successful transition, but I think we are in very serious danger of all of that unravelling. I think we are, I don’t want to be melodramatic, but I think we are…if we’re not at the crossroads, we’re very close to it.

Int Really? Do you think that the Constitution in any way protects people or institutions in South Africa, from that kind of danger?

AC You know, I think that, that…Constitutions are pieces of paper, and so it depends on the extent to which the society is able to embrace its values and understand what it is. The society includes those who wield political power, politicians, and so on. I think that the, I think whatever people may say about our Constitution, it’s a great document and so on and so forth, I think because it’s a mere document, that our Constitution is as strong or weak as the people. I mean, one just has to look at the United States, it has a Constitution going back for more than two hundred years, and while the Constitution has proved resilient, it has had very, very serious lapses throughout its history and it’s now going through perhaps one of its most serious lapses ever, in the War on Terror. And…but I think there is something about the way that society, given the fact that it’s a Constitution of many years, somehow is able to, it regresses, it corrects, but it, you know, I think it’s going to take a very long time before it corrects properly this time. but nonetheless, I mean I use that as an example of, of how a Constitution in itself is no protection to a rampant abuse of power. Now given the fact that we’re a young democracy, a new Constitution, institutions, which have been set up to buttress the Constitution, remain weak and fragile. And that, I think the rule of law is, is…again I don’t want to use words that I…I mean, I’m not saying that the rule of law is under threat, but it’s certainly under pressure.

Int If we have time, we’ll come back to that, but I’m curious, in terms of apartheid and rule of law, working within the LRC and then working at Cheadle Haysom & Thompson, even Ismail Ayob, I was just wondering, the actual institutions, the LRC and those firms, they were never really under threat of closure and certainly the LRC victories, like the Rikhoto case was never overturned, even though Parliament was supreme. I’m wondering what you attribute that to?

AC Look, there’s a strange thing about…you know, I think the fascists, you wonder why you can find years later, Nazi Germany, long lists of people they sent to the gas chambers…

Int Yes, even in Brazil amongst the Junta …

AC And in fact, that happens because somehow, there’s some, well firstly, a kind of a perverse belief in your own system, and second, that nobody will really hold us 17

accountable. I think that, that what happened under apartheid was that I think there was an idea that they were, many of them felt that they were actually quite superior, superior beings, superior to other people, systems, they were God’s chosen people, and that they did things lawfully. So that there was this, in a sense, schizophrenic approach to the law, that they wanted to uphold their law and the fact that many were unhappy with their laws was not their concern. In the United States, that while there’s a debate that goes on about the role of international law in the United States, and there are those like Justice (Antonin Gregory) Scalia who think(s) international law and foreign is a lot of rubbish and others who think, well, that international law is important. But the US administration will always somehow or the other try and justify what they’re doing in terms of international law. Ergo, South Africa. I mean, I think that they will always try and say that they were doing things lawfully. Now, what that did is that it therefore created a kind of legal space that we would say to them, well, we don’t respect your laws but now that you say this is the law, we will hold you to your own law, your own standard, and they, when we did that, there too, they failed. Because in fact it was never the substance of the law that they were upholding, it was the pretence and the form. So I think that that was part of, of, I think, the fascination and the sort of legal games one played.

Int The other thing is that, during the 1980s, certainly a place like the Legal Resources Centre had enormous sources of funding, the LRC when you were there, had sources of funding from the United States, with Felicia etc. and since apartheid ended, South Africa is no longer the darling of the funding world as such, and so institutions, particularly public interest law organisations, like the LRC, are now subject to the crunch as such, in terms of funding. I’m just wondering, about your sense of public interest law work in South Africa and whether that’s suffering through…lack of funding? And whether that funding can actually be gained internally rather than securing it externally?

AC Well…you know, I think it was (Mahatma) Gandhi, in one of the books on South Africa, I think it’s in ‘Satyagraha South Africa’, if I’m not mistaken, but I think the point is made that, that no struggle is worth fighting if the people themselves are not prepared to pay for it. I think that there’s something that’s happened to this society, we are too used to others funding us and supporting us. I think that in the way we are trying to transform the society, there’s a bit of a, there’s sort of victim culture that you find in third world countries, it’s about, it’s about, victimology is: I want things from people, and so affirmative action for example can genuinely be a vehicle for empowerment, but it can also be a vehicle for paralysis and disempowerment, if it’s part of the ‘give me’ culture. And so I, I think for me a transformative thing in this society would be that people in this country must find, must see the value, they must see it in their own interest to support for example, public interest litigation. Why? Because if you give law and access to law, to the most disadvantaged members of the society, it’s ultimately in your own interests. We don’t have, I don’t think, we are far off from having, well, look, few societies have the kind of, the philanthropic impulses that societies like the United States would have, I suppose few societies have the kind of wealth, but still, I think that there, I think there are enough people with a lot of money in this country and there are many, enough people who’ve made a lot of money without working too hard for it either. They may think they’re entitled to all of it, but that’s a separate point. But I do think that we have to find ways of reaching out internally. There has to be a strategy to fundraise internally for these things. 18

Int And certainly, that…is something that’s consistently been said about the LRC, that corporations and the legal fraternity needs to support the LRC more. I’m wondering, you know, in my interviews in America certainly, it’s consistently said that the LRC is the greatest public interest law organisation in the world. I’m wondering whether, in South Africa, you have a sense that the LRC’s been given that kind of recognition, within the legal fraternity?

AC Ja, when you say that sort of recognition, that’s a bit…a bit hyperbolic. Uh, no, but I think that there’s, I think there’s a recognition that the LRC does good work. I don’t think that the establishment looks at it with starry eyes any longer. But good for the LRC.

Int Why do you think that is?

AC Well, you know, I don’t think that this government, like any other government, likes to be challenged. You know, I mean I’ll give you the example, you haven’t spoken to Geoff Budlender yet, have you?

Int No, in two weeks time.

AC Well, you know, I think one of the great, my great sadnesses and it’s one of the great ironies of the society is that, you know, in a sense Geoff (Budlender) was my supervisor. I came to the Bench before Geoff (Budlender) did. A year or two after I did, Geoff (Budlender) was nominated and he was not appointed. My first exposure to the law was from Geoff (Budlender), a wonderful man, a modest person, highly intelligent, and the story was that, that Geoff (Budlender) was not appointed really, because one of the questions in fact that he was asked from the JSC by one or two members from the ruling party was that, why do you always seem to take cases against the government?

Int Within the LRC, was it?

AC I, I’m not sure if Geoff was at the LRC. I think he’d actually returned and was working in the LRC. I may be mistaken, you can check, check with him when you speak to him. I think he had done some, he was doing a bit of work for the LRC but it wasn’t, whether he was based at the LRC or not, it was the fact that here was a lawyer who was taking on the government and that seemed to count against him. Uh, if it is true, not that, that they asked those questions, but if it is true that at the end, because we don’t know what the deliberations, subsequent in the JSC, but if that was an important factor for why the governing party had swung its vote against Geoff, then I think that tells you something about, about how, uh, in their moments of anger as opposed to their moments of calmness, how typically a ruling party would behave. 19

Int In terms of reflecting back on your time at the LRC, do you think that it has held you in a particular stead in your work now, in any way?

AC I think that would be to put it too strongly. What I can say is that I was there for a very brief period, for a year. Uh, I think it put me on a trajectory. It made me… it made me receptive to public interest law, to using law as an instrument for the upliftment of people. To come back to the point, the question you asked me about sort of tensions and non-racialism. You know it was the first proper job that I had and it was in non-racial environment. So I count myself very, very lucky that I, it was, I think I worked in a very strong non-racial environment, which meant that, that I didn’t, I don’t think I was, had the chance to walk around with too many chips on my shoulder. And secondly, I uh…I worked in a professional environment, which in a sense, I think made sense for the way I’ve lived my life and the way I would want to live my life, and uh, so if it wasn’t there strongly before I reached the LRC, then it helped me

Int You mentioned, before the interview started, that even though you have left the LRC a long time ago and you were there briefly, you still have close association with people and I’m just wondering if you could talk a little bit about the particular people that you continue to work with.

AC Well, look, I mean I still work with Mohamed (Navsa)…and we work closely together now because he’s in the Appeal Court. I see Geoff Budlender from time to time, Karel Tip, Charlie Nupen, Arthur Chaskalson…I think I’ve had, I have worked with them or run into them or, in a sense, there’s part of a social network, who we all consider ourselves sort of, a part of. We’re able to, in a sense, meet after two years, and start where we left off. I think there’s a genuine sense of collegiality and memory. Paul Pretorius is another one. And then there’s other wonderful people who are not lawyers, like Cecilie Palmer, Vesta Smith. I mean, Vesta (Smith)’s a wonderful, powerful woman. So I think when you work in an environment where, those are not lawyers but they have a very, very strong sense of themselves as people and…you know, I mean, they recruited some really wonderful people.

Int I’m wondering Azhar, whether there are particular stories and memories, stories really, that remain to be told, or stories that you can share about…the LRC and people associated with the LRC.

AC I don’t know. I think that there were…let me start with Arthur (Chaskalson). I think one thing that struck me about Arthur (Chaskalson) was…two things: that I thought he was quite conservative, not in his politics but in his being. He was…conservative is the wrong word. Very, very cautious, and I can actually understand that here’s somebody who’s set up the LRC, in the very, very early years, was determined to set this on a path where it would be professionally strong but, but uh, he would want to protect it from attack from the National Party and the government. So I think that made, what I think is a naturally cautious person even more cautious. I remember sort 20

of asking his advice once. Some newspaper wanted to interview me about something, can’t remember what it was, no doubt something to do with my political activism or something. And his response was: Well, why do they want to interview you, what are you going to gain from it? They have their own agenda and you will get nothing from it. And so I didn’t give the interview, but I think that it was sort of, a naturally very cautious response. Uh…I think it was probably the right thing for the LRC at the time. I think that they could quite easily have been given to bouts of bravado and, had they done, the organisation may not have sort of, may not have survived. So I think that that was a good thing. And then, I mean, when I said he was cautious, but you know, I mean the one case I was involved in, lucky to be involved in, it was a case involving the…the police had, during the school boycotts in 1981, had gone into a school in Riverlea, a coloured township, and had charged the kids in the classroom, and beaten the living daylights out of some of them. Nothing too serious, I mean, you know, but with sjamboks and…and uh, the parents sued the police. I’m interested to know, what were the considerations, why the LRC took the case, because that was, that was a directly political case in that sense, I mean, and I suppose others could have done it. But anyway, it came to the LRC and they did it. And I think the police version was that they had, they were throwing stones, it was an unruly crowd and so on, they had merely retaliated. But I’ll never forget Arthur Chaskalson’s preparation. As I say, it was no big case, or complicated, but there was just a level of thoroughness in the way, in the way every witness was interviewed and there was also not, there was integrity in the process, because it wasn’t as if, the approach wasn’t, we need to nail the cops at all costs, which meant of course, as an activist lawyer, could mean should we adjust the facts to support our case. In the way he probed, we were able to pull the case together and get a version, which in fact was the truth, and was in fact the more probable version for that reason. Your case was not going to be discredited. But I think it was what I recall was just, just the thoroughness of the preparation. Geoff (Budlender) was the instructing attorney and uh, and ja, I was the student running around taking the statements and so on, feeling very important. Ja, those two stories…

Int … I’ve asked you a range of questions. I’m wondering whether I’ve neglected to ask something that you feel is important and should be included in the Oral History of the LRC?

AC Not that I can think of offhand.

Int Ok. Azhar, thank you very much for your time and for sharing your memories. 21

Azhar Cachalia–Name Index

Ayob, Ismail, 9 Biko, Steve, 5 Boraine, Andrew, 5 Budlender, Geoff, 7, 17, 18, 19, 20 Cachalia, Ahmed, 1 Cachalia, Essop. 1 Cachalia, Firoz, 5 Cachalia, Maulvi, 1 Cachalia, Yusuf, 1 Chaskalson, Arthur, 7, 9, 19 Devilliers, JPO, 10 Gandhi, Mahatma, 1, 17 Madikizela-Mandela, Winnie, 14, 15 Mandela, Nelson, 1, 9, 12 Musharraf, Pervez, 15 Navsa, Mahomed, 7, 19 Nupen, Charles, 19 Palmer, Cecilie, 19 Pretorius, Paul, 19 Scalia, Antonin Gregory, (Justice), 16 Sepai, Stompie, 14 Sisulu, Walter, 1 Smith, Vesta, 19 Tip, Karel, 19

Cases: Rikhoto, 7, 16 Riverlea school police assault, 19 22

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DOCUMENT DETAILS:

Document ID:- AG3298-1-019 Document Title:- Azhar Cachalia Interview Author:- Legal Resources Centre Trust South Africa (LRC) Document Date:- 2007