GCB NEWS

My path in the pursuit ofjustice who had previously employed me as a non-articled clerk. I was briefed by Mandela and Tambo, and the clerks Speech by se on being presented with Godfrey Pitje, Douglas Lukela and honorary lifetime membership of the Bar Mandy Msimang, Harry Bloom, for on 9 October 2004. whom Duma Nokwe was working, and about half a dozen others, to take owe much to the Johannesburg what Nicholas thought would hap­ matters in the Native Commissioners' Bar, not only for this dinner but pen. He said that it would depend on and magistrates' courts for the mini­ l for what it has done for me during who the judges would be. They were mum fee of £6.5 and, occasionally, the last fifty years. Due to my refugee Lukas Steyn and Frans Rumpff (both £8.15, for their white clients. Within a status, in many ways I was the benefi­ of whom were later appointed Chief couple of months it became apparent ciary of affirmative action at school, Justice). Nicholas said we should that Arethe, with her art, and I could at Wits University, and in my early have no difficulty, having regard to earn about £100.00 a month. Having years at the Bar. In competition with their strong Afrikaner backgrounds known one another for over five years, over twenty others, I was admitted to - they had taken an oath of allegiance we were married in August 1954. the prestigious group of Issy Maisels, even though they might have crossed Without her support I doubt whether and allowed to occupy the chambers their fingers. Before Nicholas could I could have achieved even a small of WaIter Pollak for over six months open any of the books in front of fraction of what I have during my without charge. My group fee was him, Judge Steyn asked whether the professional life. £5.00 a month; my typing cost me a applicant was in court, and if he was, Ethics was not a subject taught at shilling a page. let him come forward to take the my university. I was asked to sign oath. At last I knew that my six years The Bar made it possible for thou­ a certificate of urgency and go to of study might enable me to make a sands of men and women from all to move an application living. walks of life to come across my path for an interdict without notice to in pursuit of justice. Their courage, I freely and voluntarily admit that the respondent. I was taken by the integrity, values and optimism have I have been exculpated by the Bar registrar on the Saturday morning had an enormous influence on my Council on four occasions. In respect to Judge JM Murray. He said, 'Sit life, more than any dogma or politi­ of one of these, Chris Plewman, down son'. I introduced myself. He cal theory. When asked if I suffered the honorary secretary at the time, wanted to know how long I had been any disadvantage because I espoused informed me that there was a letter of at the Bar, where had I come from, unpopular causes, I readily respond complaint from the Attorney-General. what school and what university I that I know of no such cause that I It appeared in a docket placed before had gone to - in a most friendly have ever espoused. him that I had contravened the section manner. He wanted to know why I The Johannesburg Bar and some of of the 1913 Prisons Act, which pro­ had signed a certificate of urgency. its leading members helped me to be hibited the introduction into a prison I told him because the attorney had admitted as an advocate despite the of narcotic drugs, dagga and tobacco, asked me to. He patiently explained fact that I was not a South African in that I had given my packet of to me that the matter was obviously citizen. I asked Joe Slovo to move cigarettes to prisoners with whom not urgent and that I should come my application for admission, but I had consulted in the yard of the back on Tuesday morning after notice he thought that for a Lithuanian Jew Lichtenburg Police Station. He had had been given. He cautioned me and a communist to be nogal tell­ decided not to charge me, but request­ about the duty of an advocate to ing Anglo-Saxon judges that a Greek ed the Bar Council to inform all be independent. An advocate should could take an oath of allegiance to members that it was a serious offence not allow the attorney, the client Her Majesty, the Queen, was not a which would not be ignored in the or anyone else to direct him what good option. So he spoke to Bram future. I asked Chris what I should do. to do. To the disappointment of a Fischer, who in turn asked Rex Welsh He told me that, as the members of number of attorneys, I took Judge to appear on my behalf. the Bar Council had laughed when he Murray's advice seriously. Briefs Rex told me that he was cautiously read out the letter, I should ignore it. from a leading firm of attorneys optimistic about the matter, but in Having looked at the section, it stated stopped because I insisted on calling the event he was unable to appear that mens rea was an element of the an accused to give evidence that because the matter he was in lasted offence. Thereafter, I absent-mindedly would keep him out of jail, despite longer than expected. He handed the left my cigarettes behind. the wishes of the attorneys and the brief and notes on the relevant author­ Within days of my admission in insurance company that were paying ities to HC Nicholas (who became a March 1954, I walked into the motion my fee. His evidence would make judge of the Appeal Court). On the court with no less than four briefs kept the widow's claim unanswerable but way to court, I was anxious to hear back for me by Ruben Kahanovitz, would show that he was not reckless.

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Not all judges were as kind as Judge Murray. I remember my first pro deo in March 1954 before Judge AC Malan in the main criminal court in Johannesburg. He told me that, should he have the misfortune of my appearing before him again, I must write down my questions so that I did not jump around like a cat on hot bricks! The spectators laughed. I became tongue-tied. The judge tapped his fingers on the bench whilst I pondered what to do. I sat down. I went to WaIter Pollak (the leader of the prestigious Group 836 and a senior member of the Bar Council) to complain, hoping for some sympathy. I asked him whether it was worth­ , ... absent-mindedly left my cigarettes behind ... ' while staying at the Bar. He asked me whether the judge had prevented fee of £6.5 per day and sometimes Duma Nokwe was the first African me from putting my case. I could not without a fee in political cases. advocate to be admitted. Duma's say that it was so. Pollak advised me My first political trial was acting for admission seriously threatened the that if I managed to put my case to so Eli Weinberg, a banned trade unionist unity of the Bar. Had it not been for hostile a judge, there was some hope charged with attending a gathering at the leadership of Issy Maisels, WaIter for me. For the rest, he said, the judge Freedom Square in Sophiatown. His Pollak, Bram Fischer, Harold Hanson, was probably right - hardly a reassur­ defence was that he was on the roof of Gee Kotze, George Coleman and oth­ ing remark! a shack at the edge of the square to take ers in countering the attempts of Dr On my next appearance before the photographs at the request ofRuth First, Verwoerd and his colleagues (aided same judge, when I referred to an the editor of the Lett's Newspaper. We and abetted by some of their friends African witness by her surname, I was feared that the police would probably at the Bar), the Bar would have been told that in his court she was 'Martha'. testify that he was at the square as part split on ethnic, linguistic and political I ignored his injunction. Some time of the audience. I got cold feet, and lines. A separate Bar would be formed later, when I said that I would deal Vemon Berrange, arguably the best for whites only to whom John Vorster with one of his queries after the short cross-examiner of his generation, was had promised that they would be the morning adjournment, he asked what brought in to lead me. He told me that sole recipients of government work. made me think that the matter would cases were won on the preparation Bram Fischer, Gee Kotze and other not have been completed by then. He done in our offices rather than in court. , believing in the impor­ was not pleased when it went on for He told me how to take a statement tance of a united Bar, made sure that the whole day. The client was acquit­ from Eli in relation to every frame the proposal was abandoned. ted. By then I felt that if I could stand on the spool in order to show that no There were threats that the owner of up to Judge Malan, I could deal with pictures were taken from ground level the building, the Bar Council, Duma less difficult judges. but from the roof. He also asked me to Nokwe and I (sharing chambers with I am sure that all our present judges find cases on the meaning of 'attend'. him) would be prosecuted, particularly are patient, friendly, polite, helpful He liked the conclusion at the end of if Duma insisted on setting foot in the and understanding, and if any are not, the memorandum, 'Mr Weinberg did Bar common room. It was a bitter pill I am sure that our young colleagues not attend the meeting. On the contrary, for Duma to swallow. He had been would not be deterred from putting he was conspicuously absent from it.' a member of the Youth League and their case. The trial ended, to my disappointment, he was the acting secretary of the Probably as a result of my having been after the security policeman told the ANC after WaIter Sisulu was banned. a troublesome student and my close truth. He unequivocally stated that the He sought the advice of his political association with , accused was on the roof of the shack colleagues who all thought that the Duma Nokwe, Thanto Mothlana and taking pictures. Regional Magistrate presence of the first African at the other black students, I was briefed O'Brian was bemused with the phrase, Bar was much more important than a almost daily for poor clients in the 'conspicuously absent', which he common room. They set aside a small Native Commissioners' and magis­ incorporated in his judgment acquitting room at the Palace ofJustice in Pretoria trates' courts, often at the minimum the accused. for him to use as a robing room, but he

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structures. The unity of the Bar and the reputation and integrity of the judiciary are inextricably interwoven. Alex de Tocqueville wrote: 'It is a strange thing what authority the opin­ ion of mankind generally grants to the intervention of courts. It clings even to the mere appearance of justice long after the substance has evaporated; it lends bodily form to the shadow of the law.' Transformation is not advanced by some judges, despite their oath of office, who blame the Constitution or the highest court of the land for the abolition of the death penalty. Others equate the common law with oppression, ignoring that many of its principles enabled us to declare apartheid subordinate leg­ islation invalid, review executive and administrative decisions, and even rely f ••• conspicuously absent... ' on it so that harsh punishments should not be imposed in political cases con­ never used it. *Duma and his comrades cess. It is all the more difficult in trary to its equitable principles. may be criticised for giving in to the because of the injus­ threat by the racists. Their decision tices of the past. Race and gender are not the only fac­ made it possible for other blacks to 2 While we seek ways and means to tors to be taken into consideration join the Bar including a future Chief accelerate transformation because in appointing or promoting judges. Justice Ismail Mahomed. it is correct to do so, we also Chief Justice Ismail Mahomed listed The tensions of the 1950s within realise the difficulty of welding the qualifications as being integrity, the Bar cannot be said to have been people from diverse backgrounds energy, motivation, competence, capac­ resolved. Transformation of the Bar into sharing common priorities and ity to give expression to values of the and the judiciary has a long and uphill pursuing common goals. Constitution, experience, particularly path to follow. However, it is unfair 3 In our context, the transformation in regard to the values and needs of to say, as some do, that nothing has of the judiciary and of the legal the community, potential, and the sym­ changed during the ten years of our profession is a non-negotiable pri­ bolic meaning of the appointment. constitutional democracy. It diminishes ority. This goes hand-in-hand with It is a multi-faceted decision that the efforts of many men and women ensuring that the administration of has to be made. It is not helpful for of goodwill. Look around us in this justice is strengthened and made the profession, pressure groups, the very room and try to remember how more effective. media and members of the public to different it was ten years ago. Go to the 4 Honest and open discourse is espe­ oversimplify, to suspect the motives first pages of the recent law reports and cially important when disagree­ of those who make the decisions, and compare it to what it looked like ten ments are at their strongest. Our to create divisions amongst us. years ago in relation to race, ethnicity best objectives will be hampered I am mindful of the difficulties that the and gender. Yes, there are differences if we operate in an atmosphere Bar is facing in transforming itself. May of opinion as to whether transformation riddled with suspicion about one I remind you of former State President has been too fast, or, like me and others another's motivations, particularly Nelson Mandela's appeal for discourse who say that it is not fast enough. I can in respect of race. Tensions must be and unity of the Bar at the opening of do no better than quote Justice Pius resolved with integrity and through Maisels Chambers. It was obviously Langa, our Acting Chief Justice: earnest discourse. We owe this to heeded. I admire and trust the leaders '1 Transformation of any institution, the society we serve. These con­ of the Bar, black and white, who have however, is a painful and slow pro­ versations are most likely to be been talking, arguing, compromising constructive if held regularly and * He was arrested on a charge oftreason within and finding albeit temporary solutions less than two years ofjoining the Bar. The Bar directed at bringing us together to secure the unity and integrity of Council allowed us to hold unopposed briefs rather than exacerbating divisions.' the Bar. To quote again Acting Chief on his behalf as they had done for those who had joined the army during the war. See also A united legal profession is essential Justice Pius Langa: 'We owe this to the page 28 of this issue. to support the judiciary and related society we serve!' III

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