IN PARTNERSHIP WITH

NATIONAL LIFE STORIES

Legal Lives

Sydney Kentridge

Interviewed by Paula Thompson

C736/09

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IMPORTANT

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SIR SYDNEY KENTRIDGE QC

BRITISH LIBRARY LIFE STORIES COLLECTION LEGAL LIVES PROJECT

This is the transcript of four interviews undertaken in March and April 2008. The interviews took place in Brick Court Chambers on 11th, 17th and 26th March and 1st April 2008. The interviews on 11th and 26th March are in two parts so there are six separate tracks in total. Timings have been included in square brackets. The interviews were conducted by Paula Thompson on behalf of the British Library Life Stories Collection as part of its Legal Lives Project.

The transcript has been prepared in honour of Sir Sydney’s 90th birthday on 5th November 2012.

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INTERVIEW 1 – 11TH MARCH 2008

TRACK 1 – [51:34]

[00:00] This is Paula Thompson on the 11th of March with Sir Sydney Kentridge in his Chambers at Brick Court in London. Sir Sydney, could you introduce yourself?

[00:14] Well you’ve got it right, my name is Sydney Kentridge, and I’m a barrister, I’m a Queen’s Counsel, and we’re in my Chambers. They’re called Brick Court Chambers because originally these Chambers were in Brick Court in the Temple, but as the Chambers grew bigger we outgrew Brick Court... the Brick Court rooms in the Temple, and so we now have this building just outside the Middle Temple which we call Brick Court Chambers, which is confusing for people who know Brick Court itself.

[00:47] And could you tell us when and where you were born?

[00:52] I was born in Johannesburg on the 5th of November 1922. So if you can do the simple arithmetic it means I’m now 85 years old, or I might say I’m 85 and a quarter.

[01:10] And still very much in practice. And your parents’ names?

[01:18] Well my father was Maurice Kentridge. He was a Member of Parliament in South Africa and a very prominent one, and my mother’s name was May.

[01:29] And how... Were you one of many siblings?

[01:33] I was one of three, the eldest of three.

[01:36] The eldest of three. Can you remember your first house and describe it to us?

[01:43] No, I don’t, I’ve no recollection of the house where I was born. It was in a suburb called Kensington. I know where it is, I’ve seen it from the outside, but the first house I remember was my maternal grandparents’ house, because, when I was very small, my parents stayed there. That was in a rather obscure Johannesburg suburb called Forest Hill where my grandfather had this house and he also owned a few cottages. Throughout the growth of Johannesburg, I would say Forest Hill was one of the very few suburbs that never came up in the world, it was always, I would say it was undistinguished, the houses were, the house, I remember it of course as I was there when I was three, four, maybe five years old, I thought of it as having a huge garden, being a huge house, but it was probably a small house with a small garden.

[02:55] And your grandparents – their names and..?

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[03:00] Well my grandfather was Wolf Kentridge and I don’t remember my paternal grandmother’s name. My maternal grandparents were Leon Shaffner and Rose Shaffner. He was a locksmith.

[03:24] Your maternal grandfather.

[03:26] Yes I never knew my paternal grandfather you see, he died in the flu epidemic of 1918 before I was born, but, although I was so young, and although I think my maternal grandfather died when I was either just five or even four, I have strong memories of him because I was very close to him: he used to make toys for me – he was a good carpenter also, and the very first time I went to a cinema, or as we called it in South Africa, a bioscope, I was taken by him to a Charlie Chaplin film at the local cinema; I was either three or four. But I remember him quite well.

[04:22] And then the house that you remember growing up in. Can you describe that, whereabouts that was?

[04:30] Well... the family house which my parents bought – it was in 1931, I was eight years old. And I really stayed in that house apart from absences overseas, I really stayed in that house until I got married, more or less. So that was a period of about twenty, twenty one years or twenty years. That was in a middle class suburb called Yeoville. I’d say the other suburb I mentioned, Forest Hill, was a white working class suburb, Yeoville was very much a middle class suburb, and the houses were small, but they were nice houses, well-built houses, not much garden, but decent houses, and pleasant enough streets, and close to my school, and, as I say, that was where I grew up, and so did my brothers.

[05:45] And your parents, you said your father was a member of parliament. Had he always been active in politics, and can you tell us a little about him?

[05:57] Yes, he was an attorney, that’s like a solicitor in South Africa, in Natal, and he went into politics for the Labour Party, of course it was a white Labour Party, all of politics was white. As far back as 1908 I think he got into the Natal Legislature, and then I know that in 1914 he got into Parliament, I think at a by-election. In 1915 he lost his seat in Parliament but he remained in politics. He moved up to Johannesburg, where he was very active in the Johannesburg City Council – he was Chairman of the Finance Committee of the Johannesburg City Council – and he went back into parliamentary politics in 1920 where he won a seat in Parliament, again for the Labour Party. And again he lost his seat the following year, but in 1924 he was elected to one of the Johannesburg constituencies, and he remained a Member there from 1924 to 1958 when he retired. He was what they called the Father of the House; he was the oldest sitting MP. But he left the Labour Party in I think it was 1932 when he joined General Smuts’ South African Party; as I say, he remained in parliament all these years, so there was a lot of politics in our household.

[07:39] Did you ever go and see him in Parliament as a child?

[07:42] Yes. Oh yes. See, we used to take holi- Parliament sat in Cape Town and we used to take our annual holidays in Cape Town, so I did see him there, yes. And, when I was a boy, I also sometimes went to political meetings, election meetings where he spoke,

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and so on. And politics was much more his life than law. Although he was in practise as an attorney, politics was really his life.

[08:17] So he kept up his practice simultaneously as being a Member of Parliament.

[08:22] Yes, yes.

[08:24] And whose idea would it have been to go to the meetings – yours or his?

[08:29] Oh I wanted to go, I wanted to go.

[08:34] And did your other brothers have an interest in politics as well?

[08:38] Less than I did, less than I did.

[08:45] And you said about there being politics in the house – was your mother politically active in her own right?

[08:53] Well she was active as his helper, I mean, at election time, she was the organiser of the election campaign. She organised the canvassers and the workers and the Election Day transport, and she ran a, helped to run a Women’s Branch in his constituency. So she was very active as his helper. I don’t know that she had very strong political views of her own.

[09:00] And in your, growing up then, in your house, can you describe the members of the household – did your mother have help, or, what was the setup in the 1930s in South Africa?

[09:42] Well, in the 1920s, 30s, 40s, 50s, really, right up to the 80s or 90s, there were very very few white families who didn’t have a black servant, usually living in, in a room in the backyard, and we usually had two; a man, who did the heavy, heavier cleaning, and a woman who did the cooking, and sometimes we had a white nanny. But that was no sign of riches, because my parents were middle class; I mean, we lived in comfort, but they were not well-off, they had no, well because I said, my father, because of politics, didn’t have a very big practise, but it was just... there were servants, and all the time that I lived at home, I never made my own bed and really one can say, apart from times when I was abroad, I think that was true of my whole adult life in South Africa.

[11:11] Yes I had been going to ask, had you any household chores as a boy, in taking a Life History that’s a question one often asks, but clearly not.

[11:20] No, no. That’s a point, not. My mother, as it happened, although there was a black woman there to do cooking, my mother was an outstandingly good cook, and baker, and needlewoman, because she’d been brought up in her mother’s house, she’d been brought up to do those things, and, she was a very very competent woman in anything she did – she did leatherwork and needlework and weaving, and... She was the first woman in Johannesburg to get a driving licence, which was, as she’d said in 1918, and, so she always drove. My father never drove a car, he couldn’t drive. My mother did all the driving, but I can’t see that that is a matter of great importance to the British Library.

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[12:31] Well, it’s a matter of significance, in a way – you had a very go-ahead mother. So she was driving him round at the elections, then.

[12:38] Oh yes. And then, you know, during the war, there was an organisation of women, of women volunteers, who did things like driving army lorries, and...

[12:54] In the First War..?

[12:56] No the Second War.

[12:57] Oh the Second War, oh right.

[12:59] Yes. No, by which time she’d have been, no, going on about 40 or thereabouts when she, this was started. No, they were women in uniform, they had an organisation, it was semi-official, and she was an officer in it, and an organiser, and she did a lot of driving of army lorries. As I... she was very, very, as I say, very active, and very competent.

[13:26] Dynamic.

[13:27] Yes.

[13:29] And had she been born and brought up in South Africa?

[13:34] She was born in London and came to South Africa as a small girl. But, I mean, I think, you know, because it was, that, the way things were in South Africa, once she was married, she didn’t work. I mean, she never got a job. Before she was married, she had a job, she worked. Her mother ran a cafe in Johannesburg and she worked in the cafe, but as I say, they were not well-off people, but it was the style then that people who were in or aspired to be middle class, the women who were married didn’t go out to work, they looked after the house and the children.

[14:27] Sounds as if she had a semi-professional career as a chauffeur driving your father round electioneering [?].

[14:32] Well she had, she, as I say, she was the driver: she did the practical things at home.

[14:39] And at home, did religion play a part in family life?

[14:45] Well, it played a part, but not an important part. You see, my father, both my parents were Orthodox Jews; Orthodox in the sense that they embraced Orthodoxy, not that they were particularly observant. My father went to the synagogue on what were called the High Festivals – the Jewish New Year, the Day of Atonement and so on. And we were brought up to learn about it and to do the same, but, I mean we didn’t observe Sabbaths or anything of that sort, so... it played, religion played a part in that we always knew that we were of the Jewish religion and never thought of being anything else, but I don’t think that religious belief played any real part in my father’s or mother’s life, nor in ours. You know, there were traditions we observed because they were traditions, but we never spoke about God, for example.

[16:00] No. So would you have gone along to the synagogue on the High, on the Festival Days with your father?

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[16:08] Well, yes, I would say up to the time I was about fifteen or sixteen, yes.

[16:15] And you mother didn’t?

[16:17] Oh yes she did, yes, yes, also on those occasions, and, they had a Jewish marriage, and Jewish burials, and my marriage is a Jewish marriage, and, I mean my children were brought up in the Jewish faith also. But again, I don’t think it’s meant a great deal in, in their lives in the sense again that, they know where they belong, and they also went to synagogue on occasions, but, I must say in my family too, we would perhaps, you know, we would perhaps discuss religion in a general sense, but I don’t think we spoke about God. What was that, that chap, that of, Tony Blair said to Alastair Campbell...

[17:18] ...”We don’t do God”...

[17:19] ...”We don’t do God”.

[17:22] So that’s the Kentridge household’s [??]

[17:25] Not that we, not that we avoided, but I mean we would sometimes discuss religion in an abstract way, and you know the question of observance, and why some people observe things much more closely than we did. But it was... that’s, that’s the way it was. I mean I’d say, looking back on it, my household was a Jewish household in the sense that, without having any strong religious sense for example, my fam- we, we never had ham or bacon in our house, never had such a thing as a pork chop. In fact, I never ate bacon ‘til I was in the army, and even then, it was because there was nothing else to eat on some occasions.

[18:19] Yes. And, was there a strong Jewish community then?

[18:23] In South Africa, in Johannesburg?

[18:25] Your [...??...]

[18:30] Oh yes, I should have, I should’ve mentioned; apart from his, you know, participation in South African politics, my father was very very active in Jewish affairs. You know, there was something called the Board of Deputies of South African Jews and he was the Vice President of that, so, and my mother was very active in Jewish charities as well as in South African politics, so there was, certainly public service was one of the things we sort of took for granted. You know that my father, apart from his political meetings, he spent a lot of time at Jewish communal meetings and my mother also was active in these charities, you know, as an organiser of events and so on.

[19:24] Did she involve you as children in these things?

[19:28] Well we were involved in that we, we knew about them and we sometimes went to, fundraising events, we’d go there, but we weren’t involved in, in any other way.

[19:41] And what sort of fundraising events would there have been?

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[19:45] Well my mother for example would organise concerts for fundraising, or sales of cakes and that sort of thing, you know, really like, I suppose, all charities work upon that basis.

[20:02] And would these have been classical concerts or..?

[20:04] Oh no, popular, you know, popular, popular singers or comedians, that sort of thing.

[20:13] And, just trying to build up this picture, of, your father, the Parliament is in Cape Town, and how far is that from Johannesburg; does that mean that he’s away for quite a bit?

[20:25] Oh many months of the year, yes... yes. And, but of course he would, not every weekend but every two or three weekends, he’d come up on the fast train. Later, of course, much later, when there were aeroplanes after the Second World War he could come up by aircraft, but that was something we took for granted, that there were some months of the year... You see, Parliament only sat for, I think it was about five months a year, not like Parliament here now, so, but we knew there was a period of, it would start in January and we would mostly be down in Cape Town on holiday before going back to school, but we just accepted throughout our childhood that there was a period of about four months or so when my father was away in Cape Town, and we’d see him at a few weekends during that period, or there might be an Easter Break, you see, and then he would come up then for a week, so, but that was something that was part of our lives.

[21:43] And so, were most family holidays spent in Cape Town?

[21:46] Oh yes, yes.

[21:47] Anywhere else on your holidays?

[21:48] In my childhood, I can remember one childhood holiday in Durban, but otherwise, always in Cape Town.

[21:59] And just the family, or meeting up with friends or relatives? How would -

[22:03] Well because of his, you know the parliamentary work, my, my parents had many very good friends in Cape Town, so it was, the holiday was just the family, we would go down, but there we would meet many friends.

[22:24] And are you staying in friends’ houses or hotels, or has your father got an apartment there?

[22:28] No it would always be in what would be called a “residential hotel”, which was a sort of half hotel, half boarding house, you know, the sort of place where my father could stay for say four or five months, and they’d look after him, and he’d have all his meals there, unless he was out having dinner with friends, so, that’s how it worked.

[22:56] And back in Johannesburg, was it a busy house then? Was the house full of politicians and charity workers or was it a house where it was- How did it operate?

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[23:13] No I don’t remember it as a house full of people; the politics mainly meant that my parents were out, not that people came to the house for political- Some did, I mean, you know, occasionally I remember people coming there, but I don’t remember it as a house full of people.

[23:34] And small things like pocket money. You don’t do any chores – do you remember having things like pocket money as a young child?

[23:42] Oh yes, yes.

[23:45] And what did you spend it on?

[23:51] Well, at the Tuck Shop at school... I don’t quite remember. I think I got... I think I got a sixpence a week, and then when I was in the sort of within the, you know, towards the end of High School, in High School I got a shilling a week, and I think in my last couple of years at school I got half a crown a week. Do you know what sixpence is and what half a crown is?

[24:27] Quite a difference.

[24:29] Yes. And then when I went to university I got ten shillings a week, which was riches for me.

[24:38] Absolutely. Well, we’ll go back and think about school if we may. Can you tell us about your first school.

[24:48] Well, I’ve got a, I’ve got some recollection of the school I went to in Johannesburg, when I, I went to school when I was five, and I, I think five or six. And then for some reason, between the ages, for about two years, from when I turned six to when I turned eight, my parents were actually living in Cape Town, can’t remember why but we lived in Cape Town, and I went to a school in Cape Town. I mean, at my first school when I was five or six I remember learning to read, and by the time I was at school in Cape Town when I was six I could, I read a lot. I read books, on my own and I started reading a lot, and, you know I could read things like Winnie-the-Pooh for myself... And, of my first school, in that first year, what was called Grade I, what I mostly remember was our teacher, I even remember her name, her name was Mrs Cranko, like John Cranko of the ballet, possibly even of the same family, and I remember her for her cruelty. You see she had a cane, and, right, you would do sums. Now, if you got one sum wrong, you got one stroke of the cane on your hand; if you got two sums wrong, you got two, and if you were speaking in class, you would get the cane on your hand; but her peculiar cruelty which I remember was this: she would say to a child, you know, “Right”, she said, “You’ve been talking in class. I’m going to cane you tomorrow.” and I didn’t know whether all teachers were like that, but, I mean, it was absolutely fearsome, so, no teacher after that was bad.

[27:22] And that’s your f-

[27:23] But my, then I was at the school in Cape Town, which was called the South African College School, or SACS, which was, which was much nicer, I mean, the teachers were nice and so on, but I haven’t got much actual recollection of it. My schooling really started when we came to Johannesburg, where, I was then in the middle of the

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year, 1931, and I started school at a school called King Edward VII Preparatory School, and I was then eight and a half and, for some reason, I remember that my father took me down to the school and I started there on Tuesday the 9th of June of 1931.

[28:16] That’s very precise memory.

[28:19] We had moved into the house, that house that I stayed in, on Friday the 5th of June, 1931, and I don’t know why, I think my father, my father had arranged about the school, I don’t know why I didn’t go on the Monday, but I went on the morning of Tuesday the 9th. And that was King Edward Preparatory school which went up to - I was in Standard III, went up to Standard V, and after that was the High School, King Edward VII High School from Form I-V, and I stayed in that school for the whole of my time at school, and so did my two younger brothers, and so did my two sons. They had their whole schooling.

[29:12] Quite a continuity then. And did you have to take an exam to go from the Preparatory School to the Senior School?

[29:20] Yes, it was, yes, everyone did, at the end of Standard V, you had to pass the exam, the examination. I think it was an internal school examination, I don’t think it was a public examination, but yes, it was a sort of big thing, you had to pass it to get into High School. I don’t know that it was particularly demanding, but you had to do it.

[29:51] And, early on, you seem to have developed a love of reading. Did that teacher put you off maths, or did you like subjects across the board?

[30:03] Well, english and history were always, and later classics, were the subjects I liked; I mean I could do maths, but I wasn’t particularly good at it, and we did geography. Now, one of the things about South African education, for boys at any rate, was that, the only, the second language that you had to do was Afrikaans; that was compulsory, right through school. And then there was a science subject; I think in the preparatory school it was biology, and in High School it was general science, but I had a particularly nice teacher in Standard III, and she sort of took us right through to Standard V. The classes were fairly large; a minimum of 30, going up to, say, 35. It was a state school.

[31:09] Not a private school.

[31:11] No, no.

[31:13] And was that the norm, to be at a state school?

[31:16] Oh yes. It was a very unusual thing for people, I think, who had much more wealth than my parents had, to go to a private school. But the state schools, including particularly the one I was at, was in every way a very good school. And, I certainly don’t think we missed out on anything. And as I say, it was, there was never any thought of going, I mean the school I mentioned, I was in at Cape Town, that was a state school. But these state schools had, you know, Boards of Governors, and they somehow from the parents would collect, school funds, and they were very well- equipped. Anyway, I had the teacher from Standard III to Standard V whom I liked

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very much, and then, there was nothing particular about, you know about school days that I partic- I’m not sure the extent to which I enjoyed school; I mean, I didn’t hate school. You know, English autobiographies of people who were at public schools are all full of horror stories about the terrible things that happened at school. I’ve got no story like that, nothing terrible happened to me.

[33:01] And did you make friends at school?

[33:03] Not easily. I mean, I had friends, but not particularly easily, and no particular friends. In fact, after I left school, I can’t recall that any of my school friends remained friends. I don’t really think that there were, no, I, you know I hadn’t really thought much about that, but in fact I can’t recall any who even at university remained friends.

[33:46] So would you say it was at university that you met friends?

[33:49] Yes. Yes. Oh yes, very much so.

[33:54] So, if we just step back a little bit, in school, how are you doing academically then at school?

[34:02] Well, I would say, well, but not brilliantly; I was never top of the class. We used to get marks, you know, every week or fortnight, I’m not sure which, and, I think I would be in the first ten. But I was never first in preparatory school, or second or third, and, you know, I would come anything say 5th or 6th would be unusual, more likely 7th or 8th. So, I didn’t find schoolwork difficult, but, I wasn’t, I don’t think I was a star.

[34:56] And clubs and societies – did you join anything outside school?

[35:07] At the preparatory- are you still talking at the preparatory school?

[35:11] Yes.

[35:13] I don’t know that there were any; I can’t remember any. I mean, we had Games after school, we had cricket and soccer, and there was a swimming pool at the school, but I was never very keen on swimming – I found the water too cold.

[35:37] And when you’re talking about being academically sort of round the 7th or 8th, were you talking about your preparatory school or..?

[35:45] Preparatory school.

[35:46] And did you find a change when you moved up and started doing a more diverse spread of subjects?

[35:55] Yes, I think when I got to High School, not in the First Form, but in the Second Form we started Latin, and I found I was good at latin and was probably 1st or 2nd in the class at latin, and quite good, in english I also did well; reasonably well in history; science I wasn’t much, much good at; Afrikaans, I wasn’t much good at. And then in the Third Form, you were able to, I mean, up to the First Form, everything was compulsory including geography and art, but, and also into the Second Form. After

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the Second Form you had a certain choice, so I dropped art and geography, and the other subjects were compulsory. There were six compulsory subjects; english, afrikaans and latin, and then, what were the others? History, and mathematics, and general science. Now I found I was not at all good at science for some reason, but we had a very very good latin master, a chap who’d come out from England, and he was a classicist, and he offered to teach me greek, and the school allowed me to drop science and to do greek with him, and I did. I was good at that.

[37:59] And can you... What was it about latin that appealed to you?

[38:07] Well I don’t, it’s very hard to say. Partly the logic of the language, and of course, to some extent, Roman Civilisation, and Greek Civilisation, and, well those were the subjects I did right until the final public examination, which was called matriculation, and that was the qualification for going to university. And again, I would say at High School, I don’t say that I loved school, but I, you know, there was nothing bad about it for me, and again, no horror stories. But I, as I say, you know, school was okay. Some of the things I enjoyed, some of the masters were very good. I think looking at my school time, my years in High School, I think, I can think of four of the masters, not all in the same year, who really inspired a love of their subject, and looking back on it, to have four schoolmasters like that isn’t bad, not everyone had as many as that I would say.

[39:49] That’s a, that’s a good haul. So, Latin...

[39:54] Yes, both the latin masters, I had two different latin masters, both of whom were like that. I had two english masters, one of whom was a Scot, with a great love of english literature, and I learnt a lot from him. And then the other english master we had, not in my matric. years but in the years before that, was a man who had a life outside school. In later years, well, he gave up being a schoolmaster to become an actor, a professional actor, and also, he was in, he was very political. In fact, he was, he became a leading member of the Communist member of the Communist Party in South Africa. And-

[41:03] What was his n-

[41:05] I sort of mean, many years later, I mean I, he was my teacher I suppose in 1935 and 1936.

[41:12] His name?

[41:14] Cecil Williams. And if you go forward thirty years, you might know that there was a time when Nelson Mandela was underground in South Africa evading the police, and he was driving, he’d been at a secret meeting in Durban and he was driving to Johannesburg, and as a disguise, he was sitting in the front of the car, wearing a chauffeur’s cap, and his white master sitting at the back of the car was Cecil Williams, and that was the position when they were stopped by the police, and Nelson Mandela was arrested. Now, the point about it going back to school, is that apart from english, where he was also a very inspirational master, Cecil Williams was always talking about politics, and particularly, this was particularly in 1935 and 1936 when Italy had invaded Ethiopia and there was the question of what the League of Nations would do about it, and about sanctions and so on in Italy, so he didn’t discuss South

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African politics with us, perhaps by that time he hadn’t got into it, but, but certainly it was a kind of introduction to international politics. So. I’m afraid there’s no particular incident of any interest.

[42:51] No, that’s, that’s very interesting. I’m just going to pause the tape now.

[TAPE PAUSED]

[43:02] So we were just speaking about Cecil Williams, your master, who used his acting skills to be in the back of the car with Nelson Mandela. Just one thing I wanted to go back and ask you about – when you were speaking about having to learn Afrikaans. At home the language was English, just thinking, what language did you speak with the servants and the people in the house?

[43:28] Oh just English. We never knew any of the black languages. You know, we might have had half a dozen words.

[43:41] And did you hear them speaking the African languages?

[43:44] Oh yes. And always wondered what they were saying, but, but no, we never learnt that. Neither at home nor at school.

[44:01] And... Back at King Edward’s School, what was the normal age of matriculation? You were talking about taking your last exam.

[44:14] Oh it would be seventeen, seventeen and a half. I was just sixteenwhen I took it. I was much younger than most people, really than anyone else in my class, because I’d started school early, I don’t know why it was, but you know the school year there was January-December, and I turned 16 in November, which was the month in which I wrote my matriculation examinations. So when I went to university I was only 16, which was young.

[44:53] So it wasn’t that you had jumped ahead by a school year, but simply started early.

[44:59] I have an idea that, no I know that when I was in school in Cape Town I was jumped ahead.

[45:11] Do you think that’s because you were doing well at that stage, or-

[45:14] I think it must have been, yes. But, it must have been, but I also think that these things, I wasn’t the only one I remember who was jumped ahead, and I think it possibly had something to do with school organisation, you know, teachers available, classes available. Anyway , at school I coped, in that way, but, I mean I, I don’t think it was a good idea, being so young going to university.

[45:49] Can you say more about that?

[45:57] Well, I, you know I, not just looking back on it, but I think at the time I felt, going to university my whole life had changed in every way. I mean, the freedom from school, discipline was strong at school. It wasn’t, you know, looking back on it, it wasn’t oppressive. If in some way you’d misbehaved, this was at High School, let’s say you’d been late too often, or you hadn’t done your homework, you’d get a detention,

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which meant staying in a classroom for an hour after school. And, you know there was assembly every, in hall every morning, and, I still remember one incident from when I was at school. It’s very funny now, but it was very solemn at the time. As I said, we had this assembly every morning in school, at which the headmaster would make announcements and there would be prayers, then we would all go to our classrooms and, one morning the headmaster came in – I still remember him, he wasn’t, he was not a very inspiring man but he was a very dignified man – he came in, obviously something had happened: he was looking particularly stern, and he called out one of the prefects by name; I still remember the fellow and his name. He called him out, and he said “Fewster, leave the hall,” and this prefect got up, and I could see that he was blushing furiously and he left the hall. And the headmaster said “I have deprived Fewster of his prefectship. Yesterday, he was caught smoking in the bicycle sheds.” So, you know, but we thought, I mean to be, for a prefect to be smoking, I mean what else could the headmaster do but deprive him of his prefectship? At least he wasn’t expelled from the school. So, you know, it was school and it was disciplined, and you had to do your homework, and you had to be at school on time and so on, and university was absolutely unheard-of freedom. I mean, it’s not the sort of freedom you would have today; you were expected to go to lectures although nothing terrible would happen to you if you missed, and, but the whole atmosphere, the whole atmosphere was different, and of course I could choose subjects that I wanted to do, with, with only two exceptions. You had to do a course in, I did a BA, you had to do a course in English, at least one course, and at least one course in Afrikaans.

[49:52] Yes. Well I’d like to ask you more about your time at university but, a few supplementary questions about school. You were expected to do your homework, and that’s expected by the school; were there high expectations at home, of schooling being very important or..?

[50:10] Oh yes, oh yes. There was a time, I can’t quite remember what, where it was, where I somehow dropped behind a lot in schoolwork. I was getting, instead of being in the first ten, I was coming in the twenties in class and my parents were very upset, and, apart from being ticked off about it, I remember I was offered some, my parents said I would get some sort of prize, I don’t know what it was, if I came within the first ten, the next fortnightly... Well, I didn’t do it immediately, but eventually I did; once I came 10th, and I, I don’t know what I got, I don’t know whether it was a pound, or whether it was a fountain pen, something like that. And eventually I was, you know, I was always in the first ten, and sometimes in the first five.

[51:22] And was this at grammar school, at King Edward’s-

[51:30] Does that mean you’re at the end of a reel?

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INTERVIEW 1 – 11TH MARCH 2008

TRACK 2 - [51:08]

[00:00] So, Sir Sydney, you’d just been saying, before we had some technical difficulties with the machine, that you’d matriculated with distinction in your Greek and Latin.

{00:15] Yes.

[00:16] Work hadn’t... the love of hard work is not what had inspired you at school.

[00:22] No. And one of the problems about being sixteen when I started was that I found so much to enjoy that I didn’t really work as much as I should have. You know, looking back on it, one thinks “Gosh this was the time when one could have read so much and, you know really had time to sit down and read everything that should have been read”. Well, I didn’t, because I took a lot of interest in university politics and university societies and so on. I did latin and greek. The BA there was three years. What I was saying to you was that at some South African universities you could do some law subjects in your bachelor’s degree, but not – I was at the University of the Witwatersrand in Johannesburg – and there law was a separate postgraduate degree; I had to do a three years BA or some other bachelor’s degree, and then it would be three years of law. So I did no law at all at that university. I did latin and greek, and the way it worked you did five subjects in your first year, four in your second, and two in your third. Well, I found that I kept on with the greek. I found the latin less interesting, and by the time I was in my third year, my major subjects were greek and political philosophy, which had become my main interest, and I did reasonably well in, at university; again, I wasn’t the best student by any means, but I got distinctions in some of the subjects in some of the years. I recall that in my second year, I got four Firsts in all four, and my reward for that from my parents was a radiogram – you don’t know what a radiogram is, probably.

[02:55] No. I’m imagining an enormous wireless, but I can’t-

[02:58] Well it is with an wireless with a record player – played 78rpm records – on top. We’d never had one before, so that was my reward.

[03:14] So were you living at home while at university?

[03:16] Yes, you see, of course there were residences at the university but those were mainly for people who were from out of Johannesburg. And most people who lived in Johannesburg just lived at home and went there during the day, or the evening, but that’s why I, yes, lived at, lived at home. I mean, it was the same at school incidentally, I mean, there were boarding houses at the school, but they were entirely for people whose parents weren’t in, weren’t living in Johannesburg, and, there was always a distinction at school between the day boys and the boarders, the boarders being the out-of-town-ers, who lived in the school and whose life was the school.

[04:11] And was that less of a distinction at university between those resident in Johannesburg and those from outside?

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[04:20] Well it was a distinction only in the sense that you knew that so-and-so was at a residence, but it didn’t make any other sort of difference, you know – one didn’t, one’s friends didn’t come from one group or the other.

[04:38] And going back to university, you were talking about getting interested in politics and things there, at school noticeably there aren’t clubs and societies which you could join...

[04:53] Well I did, I did join the Debating Society at school, yes.

[04:58] Can you tell us about that.

[05:01] Well it wasn’t a very active society, it had a few debates a year, and, they were on the sort of subjects that... I can’t even remember what they were, the sort of subjects that were debated at school debating societies. Nothing too overtly political. I can’t really remember what they were.

[05:38] But you enjoyed, it wasn’t compulsory, it was something you volunteered to do.

[05:41] No. Yes, I liked, I liked debating. But, you know, there was a debating society at university but I took a lot of interest in student politics, and also there was a student newspaper, a student weekly newspaper, and I got to work on that.

[06:06] Can you remember what it was called?

[06:11] Yes it was called WU’s Views – “W U” for Witwatersrand University ‘s Views. And, and I used to, well I worked on it, I think, for at least two years when I was at university and it meant going down to the printers’, and seeing how the printers did it and so on, and I was, I was very interested then in journalism, I thought I might become a journalist, and – when was it? – I think it was in my second year at university, I got a part-time job on Saturdays working for the Johannesburg Sunday Times with the, with the news editor. I would be the University Correspondent, which didn’t mean much, because there wasn’t much news; but he would sometimes give me something to do, to write a piece on this or that, or go and interview somebody.

[07:24] And how did that job come about?

[07:36] I think I just went to see the news editor to ask if I could do it. And if I wrote something that was published in the newspaper I would get a small fee for it, maybe ten shillings, or fifteen shillings.

[07:51] So, was yours a house full of newspapers then?

[07:55] No, well there was a, there was a morning paper in Johannesburg, one, and an evening paper, one, and a Sunday paper, one. And later on there were two Sunday papers.

[08:08] But it was your idea, not something from your parents, that perhaps journalism...

[08:13] No, no. No.

[08:17] And did you enjoy that writing?

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[08:18] Oh yes. Well, I enjoyed the, not so much the writing part, but just the journalism, going out to find, to interview somebody, or sometimes go out with one of the staff, one of the people on the paper, go out with him, if he was doing an interview.

[08:39] So this is when you were aged eighteen, possibly nineteen?

[08:43] No, seventeen.

[08:44] Seventeen?

[08:45] I’d say, yes. You see, I finished my, when I did my final exams for my BA, let’s see, I was nineteen then, at the end of my third year, I’d just turned nineteen. But there were, you see there were politics at the university because, I started university in 1939, and that year the war broke out, and in South Africa, what South Africa was going to do divided the country. In parliament, there was a division between those who followed General Smuts, which would have included, really, all the English- speaking members, and some of the Afrikaans-speaking people, members, and those who followed General Herzog, who had been Prime Minister, who were Afrikaaner nationals, basically. War was declared on the Sunday, and Parliament in South Africa convened I think the following day, and in the course of that week, there was the big debate in Parliament on what South Africa should do, and the vote in South Africa was in favour of following Britain by declaring war on Germany, but there was a majority of I think three or four votes, so there was a very strong division in the country, and that was reflected at universities. Wits was almost entirely but not entirely English-speaking, there was an Afrikaaner element, which was against the war, and other universities, Afrikaans universities which were basically Afrikaans- language universities, they were very hostile to the war effort. And it was at that time, simultaneously with that, that the colour question really arose at universities. When I was at university at that time, there was no law against blacks or Asians coming to the university, but there were only a handful, I mean, doing a BA – in the whole BA course there might have been half a dozen, and similarly at Medical School there were probably half a dozen. And the question arose of whether these, the black students should be segregated. And I was on the Student Representative Council, eventually, and there we voted that there should be no race segregation in university matters. That meant that black students, and, as I say, there were only a handful of them, that they should be permitted to take part in sport, and come to university functions, including sporting functions. And, the Pretoria University, in view of that, refused to have any, you know, refused to come to rugby matches because there might be blacks who were watching, let alone playing. So that was a very, that was a matter, even at our university, there were many people in the English-speaking students who felt that it was more important to have relationships with Afrikaans universities in sports than to have blacks; in other words, they were in favour of segregation. This caused a great deal of debate and division in our university as well as in other universities, and that, in my third year, was the major aspect of university politics. So, it was, you know, it was about something.

[13:41] And that’s 194- Is that 1941 is your third year at university?

[13:45] Yes, yes.

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[13:50] So, that’s quite a significant political time then, because World War Two’s going on, and you’ve got this political struggle at the university. Just because you were discussing earlier about the split in the country with the war, would that have been something you’d have discussed at home with your father?

[14:09] Oh yes. Because, I mean he was with Smuts, and of course, I mean those in parliament and out of it who were against the war effort, well, they were against it, they were pro-German in fact. They weren’t, I wouldn’t say they were Nazis, and certainly, I mean there were some who committed treason, but that was a small minority who were actually, were sabotaging. But, certainly I would say those on the Nationalist Party side were hoping for a German victory, and were very cock-a-hoop when the Germans were winning. So, I mean the, Smuts’ government had a difficult time because they had a split country, and they somehow had to run the war effort, and so they did. But for that reason, because the country was so split, there was never conscription in South Africa.

[15:24] Just couldn’t be imposed.

[15:26] Couldn’t be imposed, no, no.

[15:29] And, would you have been discussing this with your fellow students?

[15:36] Oh yes, all the time.

[15:40] And, at that time, amongst your friends, who were the kind of people you were making friends with at university?

[15:50] Well, they were, I suppose most of them were people like me who were doing a BA; some medical students; I think mostly those who were engaged in student politics or student journalism; I think for the most part, that’s where my friends were. In the middle of 1940, when the, you know which was the critical period in the war, and Italy came into the war, and from its Ethiopian base was threatening Kenya and places to the south, that’s when a great many people joined the South African forces, and some of my friends who were older than I was, they left university in the middle of the year in order to join the South African forces.

[17:11] I’d been going to ask you about that, yes.

[17:14] And so some of my friends did that, and, of course the debate in the university went on, and then, at the end of the year, when I’d got my BA, I joined the South Af- I volunteered at the end of that year.

[17:42] And had you had that in your mind as something you would do, or, how did that come about? Or was it seeing your friends, or discussions with your father’s... can you just..?

[17:52] Oh, well it was just, well, you know, I was on the side that was for the war effort, and for Britain against Germany, and, you know that was what I believed in, and it was just for me automatic that I should go into the, that I would volunteer, when I had finished my degree. The, the age for going into the forces then was eighteen, so I could have gone earlier, but my father felt that I should certainly finish my degree,

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and I wasn’t all that old, so I finished, when I was nineteen, so I was nineteen when I volunteered.

[18:43] And can you tell us about who you volunteered with and can you remember the day that you volunteered?

[18:58] No what I can remember is that I took a holiday first. I took a holiday really, finished at university at the end of December, and took the rest of December and part of January as a holiday, and some time in the middle of January, I volunteered and went for a medical examination or so on, and then I waited to be called up, which came within weeks, and I joined the, what was called Air Intelligence Liaison. It was part of the South African Air Force, but my first, the first call-up was to the main military camps then, and air force camps, were outside Pretoria, so that’s where I went.

[20:04] And was that your choice, of which you joined?

[20:06] Yes, yes.

[20:08] And why did you join that?

[20:11] Well I, there was an older friend of our family who had joined the air force – he was an engineer by profession but he’d joined the air force as an engineer, and he was stationed in Pretoria. His home was in Cape Town, but he was in the air force as an engineer in Pretoria and he used to come and spend weekends at our house in Johannesburg and he said to me that the air force was the best thing to join. And I suppose that’s, that’s why. But it’s like many things, when you’re young, you go into them without really, it’s not as though you’d explored all the avenues; you did it. So I went in at the age of just over nineteen, in January 1942, and I was eventually demobbed in February 1946, so I had four years of that.

[21:37] It must have been quite a change, having gained the freedom of university –

[21:43] Oh yes.

[21:44] - to have a short holiday before going into the army –

[21:47] Yes.

[21:48] Can you – the Air Force, I beg your pardon – can you..?

[21:50] Well it was a, it was a complete change in two ways; first, you know, coming from freedom to discipline, but the second was going away from home: it was the first time I’d lived away from home; I was nineteen. I mean, I’d occasionally been on a holiday on my own, but this was the first time I had lived away from home, and that would have been true of, I would say, very likely everyone who’d come from a university like Johannesburg or Cape Town where most of the people lived at home, so that was, so there were many firsts, because I spent about four months in training in Pretoria, doing drill and things like that, and then I was –

[23:00] Had you been physically active at school, enjoyed sports or...

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[23:04] Not particularly, I mean, I liked cricket, but I wasn’t any good at it. No, I wasn’t a sportsman, but I was in good health, and reasonably fit, and, so it was just sort of general training and marching and that sort of thing, and then, after four months, I was put into a unit, an Air Force unit, which was going to East Africa, and, I think it was then in May, was at the end of May, we went by sea in a troop ship, from Durban up to Mombasa in Kenya, and that was my first experience of a sea voyage, and I was dreadfully seasick. It was also my first experience of any danger, because our troop ship was escorted by a British destroyer, because at that time in the Indian Ocean there were Japanese submarines, and I remember one evening, as dusk was falling, the destroyer came alongside our trip, and, over a loudhailer, told the captain that, fifty miles or so away, a Greek tanker had been sunk by a submarine and the destroyer was going out to see what it could do, and so “Goodbye”, and so, well, we wondered if there were submarines about, and we didn’t have a destroyer near us, so, it, so, well of course there was, I suppose, there wasn’t any submarine that attacked us, but that was the first feeling that there was actually a war on, because otherwise it had been very distant from South Africa?

[25:25] And about how many men would have been on board ship?

[25:29] You mean...

[25:30] The troop carrier.

[25:33] Oh I suppose there must have been about three hundred.

[25:38] But when you joined the Air Force, are you joining as a Private, or as an Officer...

[25:46] Yes, as a Private. But then after I went up there to East Africa, I was made a Corporal, and, and I was, I was stationed at this place on the coast of East, of Kenya, on the Kenya coast, north of Mombasa, for, I think it was about a year. And I was, I was in a unit which was doing coastal reconnaissance, and, I knew that I would never be a pilot, I just knew that I couldn’t ever do that, but I thought I would like to be an observer, so I, I said I’d like to fly on some of these trips that they did, and I was chronically airsick. I couldn’t, I couldn’t go up in an aeroplane without being airsick, so that was the end of that thought. So I just remained, it was a sort of jumped-up office job, I suppose, but it was conveying intelligence from headquarters to our unit, and vice versa, and making reports of operations, and of course there was never anything to report in that year – they were on the lookout for Japanese submarines, but none were ever sighted. At that time, you see, there was a big naval presence in Mombasa, because when the Japanese attacked, after they sank the Prince of Wales and the Repulse, the Japanese fleet then moved to places like Rangoon and into the Indian Ocean. The Indian Ocean, the British Indian Ocean fleet had been at Colombo, but because of the Japanese advance, they withdrew to Mombasa, so there was a big fleet presence there, and, I was really, doing very little for a year, and I became a Sergeant, and then at the end of that year, we went up in another troop ship to Egypt, and I went to another unit, I went through the Western Desert, but by that time, the Germans had been defeated, so there was nothing going on in the Western desert, - the Germans had been defeated, and the Italians, so the whole of North Africa was in British and American hands, and I went to a camp, on the Libya-Tunisian border, and, after just waiting there for a short time, I was put with another South African Air Force unit, and we went across to Malta, and this unit was stationed in Malta, and it

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was really, it was waiting for the invasion of, of Sicily, and the Germans were in Sicily with their Air Force and they used to bomb Malta, regularly, but after, I suppose it must have been about six weeks in Malta, we crossed the sea to Sicily, for the invasion of Sicily And Malta and Sicily were the first time I’d ever been out of Africa, and so, I don’t know whether Malta is Europe, but Sicily was Europe, and that was my first step into Europe, and we went through the campaign in Sicily; again, as far as I was concerned, the only things that happened were that the, the airfields where we were camped were bombed by German dive bombers, and there was an occasional sniper in the hills, but I wasn’t in the front line apart from that. And then from Sicily, we went across into Europe proper – we crossed the Straits of Messina into the toe of Italy and went up into the toe of Italy, and up into Italy. And I was there, so I suppose the invasion of Sicily was in July, and I think by the end of July we’d crossed into Italy, and some time, I think it was in about February, I was recalled to South Africa, and had to work at headquarters in South Africa for nearly a year, which wasn’t very interesting.

[31:46] Was that disappointing, having finally made it to Europe, to be- Or was it pleasing to be back home?

[31:42] Well, it was both, it was both. I mean, it was, you know, one wanted to stay on in Italy, but, I mean it was very pleasant to be back in South Africa and to be home for a time, and to be in relative comfort in Pretoria. And then I was, at the beginning of 1945 I was commissioned, as a 2nd Lieutenant, and sent back to Italy, and of course we had no idea how long the war was going to last, but, in fact it lasted in Europe until the 8th of May, and I was, when the war ended, I was in a very romantic place, I was half way between Mantua and Verona. And then, I stayed on in, I stayed on in Italy until the January or February of the next year, of 1946. Again, there wasn’t much to do but the point is that, when people were being repatriated at the end of the war, priority was very naturally given to people who were married, had families to go back to and support, or people who had jobs and had had to give up their jobs, had responsibilities, or simply who were older. So I stayed on in Italy, then on the way back I think I spent a month or so at Headquarters in Cairo, which was very enjoyable, and then I got back to, got back to South Africa, and I think it must have been in about January of 1946, and at the end of February, I was demobbed.

[34:03] Now, so-

[34:04] So that was that, and by that time, by the end of 1945, what would I have been? I’d have turned 23. Now, that of course was the other thing. When you were in the army, your every move was under someone’s control. You know, if you were told, “Right, now you’re going to Egypt.” you didn’t have to go and book a ticket, it was all done. Where were you going to stay? It was all arranged for you. Where were you going to get your meals? It was all done. And then you come out of the forces, and you find you’ve got to do things for yourself, you’ve got to go and buy your own clothes, and you’ve got to choose what you’re going to wear. And the South African government had a scheme for, you know, bringing people from the Forces back into civilian life. And one of the things about it was that every ex-serviceman was entitled to go to university, on the basis that, for going to university, he would get a grant of £750 and an interest-free loan of £500. So that was a total of £1250, and I think that, I think that to get it in present day terms, you’d have to multiply it by about 40, so it was something like £50,000.

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[36:06] It was very generous, even at the time.

[36:07] It was. Now, one of the ambitions I’d always had was to go to Oxford, and I had applied, at that time, just when I was still in uniform, but about to be demobbed, and I’d applied for a scholarship which I didn’t get, quite rightly, I had no real, no real reason why I should’ve won a scholarship, but anyway, I found out two things: I found out that as far as the government was concerned, they didn’t mind where you went to university, and there was someone who had been the Vice Principal of Witwatersrand University who came round when we were still in Italy, where the South African forces were, to encourage people to go to university. And he said there was no reason why, if I wanted to do it at Oxford, I couldn’t take this for Oxford, but that’s all the money there was, and, furthermore the Principal at the University at Johannesburg, who had been the Principal when I was there, and whom I’d got to know reasonably well through student politics, he had been the Sub-Rector of Exeter College, Oxford, and on his say so, they would take anyone whom he recommended, and so I applied, and was there and was accepted. So I was going to have this money, this £1250, and I’d saved up money, some money from my pay when I was in the army, because in Italy, or in East Africa there was really nothing to spend it on, so there were, I suppose, two or three hundred pounds saved up, and my father paid for the fare on the ship to go to England, and the other thing I found out was that Oxford, ex-servicemen could get a degree in two years, so I read Law at Oxford for two years, and got an Oxford degree, and on the £1250, you know, well, bearing in mind I’d brought all my clothes with me really, on £1250 I could live, not lavishly but reasonably comfortably, including foreign travel in Europe.

[39:09] Sir Sydney, there’s such a lot that you’ve covered in that period, and clearly the decision to go to Oxford and study Law, Jurisprudence, is a very important one, but could I just bring you back to the army for a little while, because that’s five years... Is that right?

[39:28] Four years.

[39:29] Four years. When you go into the, I’m sorry, I say the army, I mean the Air Force of course, when you join the Air Force, is that the first time you’re meeting people of a diverse nature?

[39:43] Yes. Yes.

[39:45] Could you tell us a little about that, because you’ve been in a middle class family, your father’s a politician and suddenly you’re in the army as a Private, away from home.

[39:55] Yes, there were people in my unit who had been at university also, and many of them had been through high school, but some of them were pretty raw, and the other thing was that, it was the first time I’d really met Afrikaans-speaking people, because there were a lot of Afrikaans-speaking people, and I remember sharing a tent with a couple of Afrikaans-speaking people who were, well one of them came, I think they’d come off a farm, they’d really been farm boys, and very very nice, very decent, but it was quite a revelation, and of course there were all sorts. At at one time I shared a tent, I mean, I’d become a Sergeant, with another Sergeant who was the Medical Orderly of the unit, and he was a very pleasant fellow to talk to, very amusing, but he was a

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drunkard, I mean an alcoholic, and in those days I didn’t drink at all, maybe an occasional beer, but, because I wasn’t a drinker, I was put in charge of the bar in the Sergeants’ Mess, and this chap was always the last out of the bar; he was a brandy drinker. And he made me always promise something, and that was when I closed the bar, I would bring down half a tumbler of neat brandy in a glass, and put it next to his bed, so that when he woke up first thing in the morning, he could drink it and so function during the day. And, well, I hadn’t met anyone like that before, and his wife, he had a wife at home, and, by correspondence, I know he used to tell me all about it, he used to carry on a furious row with his wife by correspondence, and he used to accuse her of unfaithfulness and so on. Now, when you were abroad in the South African forces, well, you were abroad, you couldn’t just go back to South Africa, but there was, sometimes there was a possibility of getting what was called “compassionate leave”; supposing a family member was dying, or was very ill or something, people would apply for compassionate leave, and sometimes the commanding officer, if it was really a very fraught situation, would allow it. So this chap, who shared my tent, he went off , he’d got a letter from his wife, and he’d had his morning glass of brandy, he went into the Commanding Officer’s room where every morning the Commanding Officer would hear people who were on a charge, or wanted to apply for something, so he went in, and he saluted smartly and he said “Sir,” to the commanding officer, he said “Sir, I want to apply for compassionate leave to go home to South Africa,” and the commanding officer said “Why?” and he said “Sir, I want to go home and shoot my wife.” And then there was another man in our unit who, he was a store man, he was a very well-educated man, but he had not only become an alcoholic but he drank methylated spirits. So it was a very, it was a very, it was a very mixed bunch; as I say, there were some very well-educated people, not only among the officers but among the people I was with, and...

[44:16] And this, you know, portraying a picture of yourself as someone who loved to read books and, was there any time for that in the Air Force?

[44:26] Well, you know there was, because when you weren’t actually on duty, we were, I think fifty miles from Mombassa on a very bad road; occasionally one would go into Mombassa to the shops and perhaps to have a meal but, I mean, when you weren’t actually on duty there was very little to do. Actually there we were on the coast, there was the sea to swim in, but, no, there was lots of time for reading. And there were lots of people there who read, I mean, I wasn’t the only who read.

[45:02] And that’s, trying to get a picture of daily life then, you were in disparate places – Mombasa, Libya, Tunisia – in Mombasa, are you in tents or buildings? What’s the daily routine like?

[45:19] Oh when I was in Kenya, yes, we had tents, yes, we slept in tents, and we ate in a mess, and, of course, it being Africa, in those days, there were mess servants, I mean there were local blacks who worked in the mess as waiters and cleaners and that sort of thing.

[45:43] And no black members of the armed forces?

[45:47] No, there were black units who were, only did, they were called Pioneer Battalions; they did digging, helping to dig roads and things like that, but the officers had black batmen. But one of the, one of the, in South African life and politics on every side,

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really, right through until the 1980s, there were three axioms: “No black man should have liquor, or a gun, or the vote.”

[DOOR KNOCKS] Yes, come in, it’s all right.

So, so in the South African forces, there were blacks, but none of them in any combatant capacity.

[46:55] So that was very definite then.

[46:58] But you know right up to the time there was this changeover in South Africa, white policemen carried revolvers but no black policeman carried a revolver; he could have a baton, but no revolver. It was an axiom of South African life. And so in the South African forces, it wasn’t that different. But of course when we went to Egypt or Italy, we saw for the first time, you know, there were actually black soldiers on our side, you know, from India, West Africa.

[47:35] And do you remember – was that a shock to you, or was it a surprise..?

[47:42] Well, it wasn’t a shock, I mean, we knew about it, but it wouldn’t even be a surprise, but it was a new phenomenon. It was a new part of life we were seeing, and of course, I mean Italy, Italy was the first part of Europe I’d ever seen, and from that time on, I mean, I loved Italy – it was one of the important things in my life.

[48:17] That exposure to-

[48:19] -to Italy.

[48:20] Having studied the Classics?

[48:22] But to Italian civilization, you know, to the art and the architecture, and the cities.

[48:32] So did you have experience of that then, whilst in the Air Force?

[48:36] When I was in Italy? Yes. The first Italian city I was in was Bari and, I mean it wasn’t a great city, but it did have an opera house, and whenever the Allies took Italian cities they tried to get civil life back, and that included the opera house. And then, the next city I saw was Naples, and that was a really big city, and a really beautiful city, although as dirty then as it is now. And, actually, when I was first in Bari they hadn’t yet started the opera house. The first opera house I ever went to in Europe was the San Carlo in Naples. Have you been to Naples?

[49:39] I haven’t.

[49:40] Oh then you don’t know the San Carlo, one of the great Italian opera houses. And, I always felt I wanted to go back to the San Carlo opera house, and I achieved it in 194- in 200- let me see, when was it, 2005, I achieved it sixty years later.

[50:04] Fabulous, what did you see?

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[50:06] Well, when I was first there, I saw “La Traviata”, and I went back because my son, who’s an artist and a director was the director and designer of “The Magic Flute”, which was on at the San Carlo in Naples, so I went there for that.

[50:28] How interesting.

[50:30] And of course then, above all, I went to Rome, which has always been my favourite capital of the world, and then going up Italy, Florence, and eventually after the war, Milan, Verona and Venice, so one saw it, and it all, it all stuck.

[50:52] And had you enjoyed opera before this trip to Italy?

[50:59] Yes, but mostly on gramophone records; there wasn’t much opera in Johannesburg, or in –

[51:08]

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INTERVIEW 2 – 17TH MARCH 2008

TRACK 3 – [1:17:21]

[00:04] It’s the 17th of March, second session with Sir Sydney Kentridge in his Chambers. Sir Sydney, I just wanted to ask you a couple of questions.

[00:13] Now, have you got a microphone?

[00:16] Yes it’s here.

[00:17] And is that all right, it picks up your voice?

[00:19] Yes.

[00:20] And mine?

[00:21] Yes, well yours will be -

[00:22] Ah. Yes. Very well, good morning.

[00:29] Good morning. In the last session you’d talked about your involvement in student politics, and that you’d been elected onto a Student Representative Council, and I’d just wondered could you could remember, or tell us about the election, why you’d decided to get involved in that council?

[00:49] Well I think I told you that when I first came to the university I somehow got involved in the student newspaper, for which I wrote articles and so on, and I was a debater – I can’t remember whether there were other societies I belonged to – but I think it was because of my work on the university newspaper that I became – no, I mean, I was elected by the arts students, there were constituencies according to faculty, and I was one of the arts students’ representatives; that’s all I can say about how I got on.

[01:30] So, you stood for election, did you?

[01:33] Oh yes, yes, I stood for election, and that’s how it went. I mean, it wasn’t a very big deal, I suppose, politically. It didn’t change the course of history, or even university history, I think.

[01:53] Thank you. The other question I wanted to ask you was, when you were in the army, and went in as a private, and were promoted to corporal, and then sergeant, and then second lieutenant, did you apply for promotions, or was it handed down?

[02:09] Oh. No, it was just handed, you know, you were just told. It was gazetted and you were simply told. No, I can’t recall ever applying for it – one hoped for it, but never applied.

[02:27] Thank you. And, then, the other topic, which I hope we’ll go into in a little more detail today: it was clearly an important decision of yours to go to Oxford-

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[02:39] Yes.

[02:40] - and in the last session you said that you’d always had the ambition to go to Oxford, and I wondered if you could explain a little more about that – where it came from or ...

[02:56] No, it’s very difficult to explain; you know, in, in my childhood, and, I suppose, my adolescence in South Africa, everything we had really in the way of English language culture came from England, or Great Britain anyway. The children’s books we read... the school stories were all about English schools, The Magnet and The Gem and so on, and so one simply grew up with the knowledge that the premier universities in the world were Oxford and Cambridge, and particularly Oxford. I’ll tell you why I think there was a, an awareness of Oxford, and that was because of the Rhodes Scholarships, which originated, after all, in South Africa. And one always heard of people who, of South Africans who had gone to Oxford on Rhodes Scholarships, and that was the ultimate accolade for a student to have been awarded a Rhodes Scholarship, so that made Oxford something we were aware of, and if one had any sort of academic pretensions, it was either Oxford or Cambridge one wanted to go to. I mean, people went elsewhere; many people, South Africans went to a London University of course, but I always thought of Oxford as the place that one wanted to achieve.

[04:45] Thank you. And then you were talking about these untold riches of £750 -

[04:52] And plus £500 loan, yes.

[04:54] So, you discussed how Exeter College came about because the Head had been a sub- rector -

[05:03] Yes.

[05:04] - at Exeter. Could we just look in a little more detail about your time at Oxford, or the decision to study Jurisprudence? You talked, at the end of your B.A., the two subjects that had really caught your interest were Greek and Political -

[05:22] Philosophy.

[05:23] - Philosophy.

[05:24] Yes.

[05:25] So the decision to study Law? Or did you call it Jurisprudence?

[05:30] Well, law. I mean, at Oxford they called it jurisprudence. Well, well, it’s quite hard. Well you see my father was an attorney, so the law as a career had always been possibility, although I knew, I didn’t ever study it, while I was at university in Johannesburg. Well, I, I realised, you know, after I came out of the forces, I would have to earn a living, I suppose, because , by the time I left the forces – when was it, early 46? – I was, I was twenty three and had no qualification for earning a living, and it seemed to me that law was something that I could go into. But I suppose if there was one thing which tipped me into becoming a, an advocate, a member of the Bar, was an experience I had when I was still in the forces , before I left Italy – it would be

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probably right at the beginning of 1946, or maybe even at the end of 1945. I think I’d told you that, after the war had ended, the, the procedure and principle on which members of the South African forces were repatriated to South Africa was on the basis that married people with a family, or older people, or perhaps people who had, had joined the forces early, got preference. So I was at South African Air Force headquarters in Bari, and, as with other forces of the units, there was a Legal Officer, and he was in charge of legal matters, a Major, including running court martials. And he came to me out of the blue one day, and said to me “You’ve got a university degree, haven’t you?” I said “Yes.” He said “Well, we’ve got two court martials coming up. All my legal officers have gone back to South Africa. Would you like to do the prosecution in these court martials?” So I said, well I didn’t have a degree in Law, and I know nothing about court, criminal laws, or court martials; he said “Don’t worry about that,” he said, “I’ll tell you what the procedure is, and I’ll give you a little book I’ve got on Criminal Law.” And he did. And so the two court martials came up, a court martial of two people, it was. I think one of them was for dangerous driving, and running over a civilian and killing him; I think the other might have been for theft. Anyway, I did these two prosecutions, and it was proper criminal procedure, and the Legal Officer, who was, who was a qualified South African lawyer, was the Judge-Advocate who sat on the court martial, the other members were just three officers, and I remember I, I did the prosecution, and I thought this was a very exciting sort of thing to do, to lead your witnesses’ evidence, and to cross-examine, and address a court, and it occurred to me that this was what I could do for a living, so that’s what just tipped me, definitely, into... I mean, when people say “Why did you become a lawyer?” one of the reasons is that I couldn’t really think of anything else that I would have been competent to do; as I say, I wasn’t a scientist, I would have shuddered at the thought of becoming a doctor, I had no artistic ability, I couldn’t become an architect, and in those days, you know, if you were going in for a profession it was law or medicine or architecture or accounting – I had no interest in figures – and that was really it. As I think I said, I had at one time been very interested in journalism, and the only other profession where I think I could have done well would have been journalism, and, because I think I could have become a good investigative journalist, I could have become, I think, quite a good leader writer. But you know, in those days, although journalists were respected, it was somehow not regarded as a regular profession – people somehow went into journalism, I mean some of the journalists I knew had been barristers for a short time and then dropped out and had gone into journalism, so that was it. And so, when I had the opportunity of going to, I mean I definitely had to go back to university after I’d got out of the army, whether it was in South Africa or elsewhere, and what I would have done was law, wherever I was, and so when this opportunity of going to Oxford arose, it was certainly to do the school of, what they called the Honours School of Jurisprudence.

[11:19] That’s very [clear?], thank you. And when you get to Oxford, can you tell us about that?

[11:31] Well it was of course, a completely different sort of university from the university in South Africa. Firstly, it was collegiate, you didn’t get in to Oxford University, you got into a college. And of course all the practices and customs and traditions of the college and the university were so new; first looked at from the point of view of living, I mean, the idea was that in the college you had your own room, was remarkable, you know because in the residences in South Africa people used to share

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rooms, I think and it was pretty austere. Well, when I came up it was in 1946, in October 1946, so the war wasn’t very far away and the whole country was very austere. There was still food rationing and we had ration books, and the food at the college wasn’t great, but nonetheless, it was dinner in Hall, in the evening where you wore a gown, and there was the High Table with the Rector and the Dons up there, and candlelight and beautiful silver tankards. So it was a different, different experience. Then of course there was the beauty of Oxford. I mean, Exeter is not a spectacular college, but it has some wonderful 17th Century buildings, and beautiful Fellows’ Garden at the back. It had a chapel, a Victorian Gothic chapel which was quite out of place in an 18th Century, 17th, 18th Century quadrangle, and in those days, which were really the pre-Betjeman days, we all despised Victorian Gothic, but nonetheless, I mean it was a remarkable. It was remarkable to be in buildings of that sort. And then the teaching was so different, because the basic teaching was done at a tutorial, which certainly in those days was a one to one tutorial; I met my tutor once a week, and he would set me an essay to do, and tell me what to read, and then of course I would read my essay to him, and he would criticise it with absolute frankness, and discuss it with me and discuss the subject, and that of course was the basic teaching. So a term, there were three terms a year of eight weeks each, and so it means that every term you wrote eight short essays, so your learning work was in a way done on your own with the guidance of your tutor. I also went to lectures, but started by going to quite a number but then dropped most of them. There were about, I can’t remember, two or three, at the most, lecturers that I went to listen to regularly, and that was because they were so good, and interesting. And, so I got a lot out of that method of teaching, and I found that I was really interested in law. Of course it was mostly English law, but in those days, in Oxford, you could do a course in what was called Roman-Dutch Law, which of course was the Common Law of South Africa, and of course I did that, with one of the great exponents of it, a Professor Leigh, who had written the great textbooks on the subject, and, of course there were only a handful of people in Oxford, even in those years, doing Roman-Dutch Law, perhaps half a dozen, certainly half a dozen in the first year, and so Professor Leigh’s lectures were really more like tutorials or seminars. And there were a few other people, one or two other lecturers, who were very very good, of whom I liked going to lectures, but basically, you had to do your own work and make sure you learnt what you wanted to learn by your own efforts, and I found that very stimulating. And of course there was always so much going on in Oxford, in the way of music, outside lectures, theatre, there was good theatre in Oxford. And so it was an enormous experience for me. Of course, you realise that when I went up to Oxford, it was the first time I’d ever been in England, so when I arrived, I saw London for the first time too, and that, you know, that was remarkable.

[17:24] So your first experience of Europe was Sicily and Italy -

[17:28] Yes.

[17:29] - and then London -

[17:30] Yes.

[17:31] How did that strike you?

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[17:34] Well, you see, once again because all the literature we read was English literature, we knew all the names; I mean, I knew of Baker Street, where Sherlock Holmes was, and The Strand, and Piccadilly, and Pall Mall, and Hyde Park, and here they actually were. Oh and of course, in South Africa, when from the time I was a boy, we played Monopoly, but the game of Monopoly we had had all the London streets, so you know, we knew that Mayfair was a very expensive place, and the Old Kent Road was a very cheap place, and so, it was. The amazing thing was that I was coming to what had been magical places, and here one was actually in them And so, as I told you I’d been keen on opera through gramophone recordings when I was a boy in South Africa, went to a few operas – there were occasionally local companies, but of course we knew that the great place for opera was Covent Garden, and one of the first things I did when I got to London, I had two or three weeks in London before I went up to Oxford, and one of the first things I did was to go and have a look at Covent Garden. The opera house had not reopened after the war, but there it was, at least from the outside, so that was all very exciting. Of course, the other things was, that, and this may seem strange, and I was, you know, absolutely appalled and shocked at the bomb damage in London because it was all still there, you know, empty sites, the ruins of buildings, hadn’t, had just about started clearing it up. And, although of course one had seen war devastation in Italy, it had not applied in the main cities I went to; like Naples, apart from its outskirts and rail yards and so on had not been severely bombed; Rome had been an open city – there was no bombing of Rome, and there’d been no bombing of the centre of Florence itself. So this was the first time I’d seen a big city which had been so devastated by the war – one saw what it was. And of course, as I said, the rationing was then still very strict, you know, one egg a week; you had coupons for, I don’t know what it was, one or two loaves of bread a week; chocolates were very strictly rationed, and, you know, even in college one felt that – there would be meat on the menu or fish on the menu, but not very large portions, and everything was made up with potatoes and brussel sprouts. And, I mean, of course, everyone else in England just took this for granted, but this was quite a shock, and it was a sort of practical lesson in what the war had meant in this country. And of course among the other places in London, I knew about the National Gallery, but it was amazing to go into it, so was the Westminster Abbey, St. Pauls’, so I was a tourist as well as a student.

[21:53] So did you do these things before going up to Oxford, or did you come down in the holidays?

[21:59] Oh well in the vacations I came down to London sometimes, yes. And, I didn’t see, much else of England; I never went up to Scotland. I did go to, I visited friends in Cambridge of course. One of the cities I went to was Bath. I remember Bath was a most beautiful place. I think I went down to Brighton, I can’t remember if it was then or later that I went to Brighton. Stratford, of course, I went to; I went to see plays at Stratford during one vacation, saw that part of the country.

[22:48] And in the last session you mentioned that because you were relatively well off, you took the opportunity to travel abroad?

[22:57] Well, relatively, because I remember in my first vacation, that was in December 1946, a friend of mine, a South African friend of mine who was at Cambridge, we met up and we decided, he had also been in Italy during the war – we’d spent some time together there; and that was a most dreadful winter, especially for a South African,

31 because among other things there was a fuel shortage. There were times when the central heating was just cut off – not the central heating, I mean the gas – it was simply cut off, and the electricity was rationed too. So we just had a longing to go to Rome. So we went across first to Paris – I’d never seen Paris either – but the idea was that from Paris we would go to Rome. Well there was only one way for us to go to Rome, and that was by train, because we found that the trains were already running through Europe, and we got a third class return ticket from Paris to Rome, and because the franc and lire and things like that were so depreciated, our return ticket, in English money, was three pounds. Of course it was very uncomfortable travelling, but we stopped off on the same ticket in Switzerland, because the Swiss, in order to try and resuscitate their British tourist trade, which had disappeared during the war, had a special rate of exchange for English tourists. The pound was worth seventeen Swiss Francs, so even Switzerland was, was cheap. And we had another advantage. There was very strict exchange control in England – for travel abroad, English people were allowed £50 per year. But as our money came from South Africa, it wasn’t subject to that £50. So, although we were going very very cheaply, we weren’t limited by that £50. So we saw Switzerland for the first time, and then across the border into Italy. Well, Rome, I mean Italy was very very poor then; the people in Rome were very very poor, but similarly with our English money, changing it into lire we could eat at very good restaurants for very little money. So that’s what I did in my first vacation, and took the train back through Paris, came back to England, where, I mean there were restaurants of course in England, but of the sort we could afford in England, they weren’t very good. There was something, I don’t know if you, did you ever hear of British Restaurants? They were run by the local authorities, and you could get a meal there for, I can’t remember whether it was a shilling or one and thruppence; a three course meal, but bread always counted, as at any restaurant, bread counted as one course – you couldn’t have more than three courses in any restaurant, but bread was one course. And there might be soup, and some sort of middle, some sort of main course which was mainly potatoes and a tiny bit of meat or fish perhaps, or one could have dessert, which was usually some sort of soggy pudding; so it was a completely new life for me in every way. But, I’d say it was a very influential part of my life, because, although the law I learnt in England was not directly applicable to South Africa, I learnt about legal reasoning, and legal research, and principles. So I do think that it affected and influenced my whole legal life after that, although I was only there for two years, because, as I said, ex-service people could get a degree. It was rather odd, because there were, you know, there were two classes of people at Oxford; there were the ex-service people, who got this sort of preference, and preference in getting in to colleges, and there were the people who’d come straight out of school. And although there was no actual divide, I mean we went to the same lectures, also doing law, we sat in the same hall and so on, there was a sort of divide of feeling, you know. I mean we, those of us who’d been in the forces were four or five, or even six years older, and we’d had different experiences. Anyway, it was a great time. Of course, the other great thing for me was the English theatre. The London theatre was a revelation. I remember one of the first things I did was, one of the first places, things I was able to do in London, the Old Vic, as it then was before it was the National Theatre, was at the new theatre in St Martin’s Lane, and I saw King Lear there with Laurence Olivier, standing room at the back, and that was quite remarkable. And also there I saw Alec Guinness and Ralph Richardson in Richard II, and the same two were doing Cyrano de Bergerac, and you know, this was a quality of theatre I’d never dreamed could have existed.

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[30:01] And did you, would you have gone to the theatre in Johannesburg?

[30:06] Yes, I did, you know, the theatre there was only semi-professional; it was, there were professionals, and occasionally a fully professional company, but many of them were semi-, amateur or semi-amateur. And then of course in London, although Covent Garden wasn’t open, there was opera – it was beginning to open up, and you know, here again was opera of a sort I’d, I’d never seen, really, except for that one or two opera experiences in Italy. Then Covent Garden did open, although not for its own company; the San Carlo Opera came to perform at Covent Garden, and there were other companies, with famous singers in them, so...

[31:07] And would you come down from Oxford specially to see something, or would you do it in the vacations?

[31:10] Really, I’d do it mainly in the vacation. Occasionally, if there was something special, I might be able to come down, but it was, you know, it was, I mean, mainly during term time one was in Oxford. But I remember I had standing room at Covent Garden also to hear Kirsten Flagstad in The Valkyrie and Tristan and Isolde, so, I somehow, those days I could stand through a Wagner opera, now I can not always even sit through it. But, no, it was, although it was only two years, I think of it as a formative time of my life.

[32:00] And when you’re doing these things, did you do them alone, or had you made friends at Oxford?

[32:06] No I had friends. Some of the things I did alone. I mean, my friends wouldn’t necessarily want to go to listen to a Wagner opera. And of course in Oxford as I said, there was quite good theatre and very good music in Oxford, so, no, it was very enjoyable.

[32:39] And the type of people you’re meeting and mixing with. You said there was a segregation between those who had been in the forces and those who hadn’t. Did your friends mostly come from ex-service people?

[32:51] Oh yes, yes. Yes. That’s how it was. I mean, it’s not that one didn’t know or talk to others, but I think quite naturally that’s how it tended to be. A serviceman necessarily wanted to take this two year option – some of them might have preferred the three year option. But... The way it worked then was that the only examinations you wrote were at the very end of your two years, and then you wrote the examinations. And again by the Oxford system, all the examinations were in one week, or eight days, anyway. Morning and afternoon, you wrote three hour examinations. And of course the extraordinary thing for me again was that you dressed up for the examinations. You had to wear a gown, and a white shirt with a white bow tie, and a mortarboard, for examination, writing the examinations.

[34:03] And how did that strike you?

[34:06] Well, it struck me as partly ridiculous, and partly very delightful, you know, that you knew, this is what they’d been doing for two hundred years or so, and that’s just what you did, and, it wasn’t as though you queried it or revolted against it, it was just one of the things about Oxford.

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[34:37] And how did the exams go for you?

[34:43] Well I’d, rather to my surprise I got a First.

[34:51] Why were you surprised?

[34:58] Well, I’d worked hard at Oxford, you know, at my law, and I’d worked hard before the examinations, but I didn’t work madly, you know, there were people who worked twelve hours a day; I was never one of those. But I mean I did, I did work. I found the time that was a good time for me for working, was between five o’clock and eight o’clock, to be in a library and that was a good quiet time for me, but, I mean I never got up, I was never an early worker, as I say I didn’t go to all that many lectures, so, as I say, I wasn’t an obsessive worker, so I was a bit surprised.

[35:52] Was it rather like the Latin and Greek? You explained that when you first discovered them, you discovered you were good at them and could do them, the same with law, you were talking about the reasoning. Did that appeal to you, intellectually?

[36:08] Oh yes, yes. And the whole subject matter appealed to me. All very... So, I did read it. When, I read, I read with great interest. It wasn’t simply, nothing but a chore. And I really, I devised for myself a method of preparing for the examinations, which, I suppose many people didn’t. I suppose mostly preparing for an examination, you go over all your notes and essays and all the textbooks you’ve read. Well, I decided that that had to be leavened, by, in every subject, while I was preparing, reading something new, something I’d never read before. A new textbook, or a new journal article, or some reports of cases that I’d never read before. So that somehow kept me fresh. But anyway, I did somehow get a First, which was, well it was a great thing for me and a great thing for my parents, that my time hadn’t been wasted.

[37:28] Your father having paid for the fare was well repaid!

[37:31] Yes. Well, my fare was paid, and the other thing – I suppose I should have said – was that when I went to England, I went with a full outfit of clothes; I had all the clothes I needed, I didn’t have to buy many in England, which was also a good thing because clothes were also rationed in these days.

[37:53] Including your academic gowns, or did you- ?

[37:57] Oh no, no, that- But you know, those you got handed down, and then when you left you sold it, or you gave it as a tip to one of the porters, who then would then sell it to someone who came up. So that worked perfectly well.

[38:23] And so, two years, the exams are in, May, June?

[38:28] I think the final exams were over by early June, but then I had to come back for a viva. You had to have a viva.

[38:46] So, did you go back to South Africa after -

[38:49] No, no, I you know it wasn’t easy to go back then. No, I went again to the continent, particularly to Italy. Spent time in Italy, and I think, possibly some in Switzerland. So, yes, that’s, but then I, the viva, I can’t remember. The viva wasn’t immediately after

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the examinations because you only got the viva when the examiners had marked your papers and got all your results, because the viva was mainly for people who, who might be getting a second or a first, they might be on a borderline. There was no such thing as a 2:1 or a 2:2; it was first, second or third, and, and in my case, I came for the viva, and, and I only remember the man who presided. The viva was before a panel of examiners, but I only remember ..it was presided over by a Professor Waldeck, who was the Professor of International Law. And I’d never really, met him before. Anyway, my viva was a formality. Because. I still remember what he asked me. He said “Did you see in this morning’s Times what Mr Churchill had to say about Capital Punishment?” so I replied “No, I’m afraid I didn’t.” So he said “Well, we haven’t any other questions for you.” So that was my viva.

[40:56] How extraordinary.

[40:57] And then the results came out and I got a First.

[41:02] Had you been preparing for the viva?

[41:06] No, no. Just assumed it would be on matters that had arisen in the examinations, or on general law, so you couldn’t prepare for it. But it was an ord-, you know, one was worried about it; one was expecting an ordeal.

[41:27] Somewhat comic then, or, with relief that you left the room.

[41:29] Yes, yes.

[41:31] Very pleasing indeed. So when did you return to South Africa, after Oxford?

[41:42] Well my recollection is, I stayed in England, now that it comes back up, I think I stayed in England for the viva, and then I went to travel in Italy, and I went back, I would say, probably by, by August of 1948 it was. Because, my final exams were in May or June 1948. So by about August ’48 I was back in South Africa.

[42:26] Then, considering your routes to becoming a professional lawyer, while at Oxford, I don’t know, perhaps colleagues are joining Inns of Court, or- in your mind at Oxford, have you retained that idea of going to the Bar, and what steps do you take?

[42:48] Oh yes, definitely. But I didn’t think of staying in England, or being called to the English Bar. Some South Africans, who had studied at Oxford or Cambridge, did get called to the English Bar, which in those days would have meant an extra year. But I didn’t ever seriously thing of doing that. Because by that stage I was twenty five, nearly twenty six, and I thought it was time I started getting around to earning a living. My father had supported me when necessary over the years, and I just thought I’d better get back, certainly, and go to the Bar in South Africa. One of the odd things about it, and this was a relic of Empire, South Africa had its own Bar. In South Africa you had to have the main qualification for the Bar was a South African Law Degree, which I didn’t have, but by this strange hang over from the days of Empire, an Oxford or Cambridge or London Degree in Law was a qualification for the South African Bar. All you needed in addition was to write one examination in certain South African statute law, like Criminal Procedure Statute, the South African Constitution, South African Insolvency Act; I think half a dozen statutes, but you just

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had to mug up on them. Oh, if you hadn’t done Roman-Dutch Law at an English university, you had to do an examination in Roman-Dutch Law, but I had done Roman-Dutch Law, so I had to do one examination. And that examination in Statute Law needed some preparation, because some of the statutes were very long and complicated. So, I had to spend time working on that, and-

[45:29] Were you taught, or just entirely self-taught?

[45:31] Oh no, just self-taught. What I was able to get, you were able to get papers from previous examinations to get an idea of what it was about, you got some textbooks, and copies of the Statutes, you were self-taught. But while I was doing that, a member of the Johannesburg Bar allowed me to sit with him in his Chambers. There was no system of pupillage, as there was in the English Bar, but he allowed me to sit with him in his Chambers as a sort of quasi-pupil, so I could go to Court with him and see what the procedure was and so on. And then the examination I had to write early the following year, so I had about, what was it, really about 6 months or... Well, I mean, when I came back to South Africa I took a holiday, of course, needless to say. So, I think I wrote that Statute Law examination in February of 1949, and waited for the results, and then to join the Bar, you had to give notice that you were called to the Bar by the Court, and, so in fact I was called to the South African Bar in Pretoria, on the 17th April 1949 – that’s one of the dates I remember.

[47:06] So that’s... almost fifty-nine years in practice.

[47:12] Yes, yes. I mean, it’s a terrible figure, isn’t it? Well all these things work like that: I’ve been married fifty-five years; fifty-nine in, in practice; yes, that’s right, it’s in less than a month it’ll be fifty-nine years. I noted the dates after I’d been fifty years in practice, but then I stopped counting.

[47:40] Ah well. Any excuse for a celebration’s quite good, Sir Sydney.

[47:43] Yes.

[47:45] Did your father ever try and dissuade you from the Bar or-

[47:51] No no, he encouraged it throughout. He encouraged it. He thought it was a very good profession, especially for me.

[48:01] As opposed to being an attorney, which is what he-

[48:03] Oh yes, yes. I mean, he was an attorney, but, as I think I told you, his main interest was politics. And he didn’t particularly enjoy being an attorney, and he would have thought it terribly if I’d wanted to become an attorney.

[48:23] So. The Bar then. He could see that was going to suit your particular character and skills.

[48:30] Yes. Yes. And so that’s what I did, and I started at the Bar. I mean, I was called on the 7th, and I started actually in my practice, of April, on that same day.

[48:48] And how did it work? To establish yourself in practice. You talked about a quasi- pupillage, in another set of-

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[48:56] Well, the thing is, I was at the Johannesburg Bar. In those days the Johannesburg Bar was probably under a hundred people – it grew even in my time there to several hundred – but, we were all in one building, and we were divided up into sets, like sets of Chambers here, except, we didn’t have clerks, there were no barristers’ clerks, but as a set, we jointly would employ a telephonist and typists and a messenger. But, as here, we were all individual practitioners – no partnerships – but there was no clerk to help one get briefs. This, you see, although Johannesburg was a relatively big city, it tended to come by word of mouth, and, I had a, for example, a first cousin of mine, with whom I was always on very good terms – an older first cousin, was an attorney, and he sent me my first brief – some small case. And by that time, I think my father had given up practice, but his former partner sent me a very small case. In those days, there was no legal aid in South Africa – in fact, there never really was until the changeover. But, when anyone was on a Capital charge, then and then only was he required to be represented by an advocate. And the state would provide, the state would pay an advocate five guineas to defend the man on a charge of murder. And the way it worked in practise was the that Secretary of the Bar Council would be asked to get some new member of the Bar to do the defence. I mean people here think it extraordinary: the very first cases you did at the Johannesburg Bar was to defend someone on a charge of murder. My very first case of my own in court was to defend someone on a murder charge. And I did many of those, and of course it- Well the idea was that it was better than nothing, if it weren’t for that, the people wouldn’t be defended at all. And then, you know, sometimes a colleague, a more senior colleague in your own set of chambers would have a brief, but he couldn’t do it because he had a clash of appointments in court, and he would say “There’s a new chap down the passage; give it to him.”, and so gradually, one did little bits of work.

[52:13] And, that extraordinary start, defending people on charges of murder, how did you feel about that level of responsibility?

[52:23] Well, I suppose I worked harder preparing those cases than I ever did again for any sort of case, probably; I mean it was a terrible responsibility . But one did one’s best. And of course there, not only was the death penalty on the statute book, as it was in England in those days, but people were hanged. There were some were reprieved, but people did get hanged for murder, and, I remember in a couple of my cases, people were sentenced to death, and, you know, there was that awful procedure of the judge putting on a black cap and saying that you’d been sentenced “to be taken from here to a place of execution and there be hanged by the neck until you are dead” – it was rather, it was pretty horrible.

[53:21] And going to see them, afterwards. Did you have to go and see the clients afterwards?

[53:30] No. No. I didn’t. But of course the death penalty continued in South Africa right up to the end of the 1980s. And South Africa had, had the unpleasant record of, right up into the 1980s, of being, if you left aside countries like Russia and China where they didn’t have a proper legal process, in countries where they had a legal process, South Africa for many years had the world record for the number of executions, of people sentenced to death – it was running at one hundred and twenty a year. So, it was always a factor in criminal cases. Though then, one did any sort of case, criminal case, civil case, whatever it was about.

[54:36] And your clients, those who were up on the capital offences, mixed race, or--?

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[54:45] Always black people. And you always needed an interpreter, to, both to interview them and in court – they always needed an interpreter.

[54:59] So that made the job doubly difficult working through an interpreter.

[55:01] Oh yes, and there was no solicitor. The advocate had to do it all on his own. So, so one was thrown in at the deep end in that way. And of course, as I said, we did civil and criminal work, and I gradually got to do more and more civil work, but right through my time in South Africa I always did some sort of criminal work.

[55:29] And in, when you come back from Oxford, and you’re studying for the Statutes, are you living at home?

[55:35] Yes, I was living at home. Yes.

[55:39] And, how was that after having the freedom of, well, you’d been in the army, and then Oxford?

[55:48] Well, you know, I had told you about how my father was in parliament and had spent time in Cape Town. Well of course once we’d left school, my mother spent time in Cape Town with him, so for half the year he wasn’t there anyway. And then, because by that time, you know, after the war, my parents also travelled, they went overseas occasionally, so, you know it, it’s not as though it was oppressive being there. In fact, looked at the other way, after the austerity of England, to be back there with someone to do the cooking and make the beds and polish my shoes, it was very comfortable.

[56:47] And just, thinking about Oxford, you’ve been in this incredibly male environment with an all boys school, and then the army and then at Oxford – did you meet girls at Oxford or-?

[57:07] No, I met some girls in England, but oddly enough, I had no particular girl whom I knew at Oxford.

[57:15] And then, at the Bar, were there any women at the Bar in South Africa?

[57:19] In those days, I think there were, when I was practising in Johannesburg, I think there were three, and they mostly did matrimonial work, and found things very difficult.

[57:40] And matrimonial, not an area of law that you-

[57:43] Oh no, we all did that. Yes, divorce work was always one of the things on which you cut your teeth.

[57:53] Thank you.

[Coughs, tape paused]

[57:55] I don’t think, I don’t think that that’s right, really, because, as I think we said last time, it enabled me to meet the sort of people I’d never met at university or when I was at school, to know something of, you know, to meet people who were much older

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than I was, who’d had all sorts of life experiences – I mean, I told you some of the types of people I met. So no, I think that was very important. It was very important to me because it took me out of South Africa to new countries, to new places, no, I would say that not only during the war but for many many years after, there was this sort of somehow, a gap, really a metaphorical gap, between those who had served in the war, and those who hadn’t. There was always that difference – if you’d been in the forces in the war, and if you hadn’t. No that was also very formative.

[59:16] And how did that manifest itself, that gap. Can you say more about that?

[59.23] Well even when I came to be at the bar in Johannesburg my friends not entirely but for the most part were friends that had served in the war. Not only because of the age but because somehow it was some sort of bond.

[59.46] A shared experience. So your start in practice at the bar, what are the cases in your early days that stand out?

[1:00:00] Well apart from these capital cases which remain in my mind as a group of cases. I’ve got no real recollection of any of the individuals whom I represented nor for the most part the facts of the cases. A couple of them I do. You know most of them were cases of drunken stabbing or sometimes cases of a robbery where a person had been robbed and killed in the case of a robbery. They were all very sordid. But i will tell you the cases that I really remember from my first year and theses were cases which to a large extent brought about the direction in which my work and interests as an advocate took. Really from then until my present life and that was this: My father had always had a particular interest as a politician in labour matters and he knew a lot of leading trade unionists in South Africa. They were all white of course because all trade unions were white. To some extent what were called coloured people had trade unions but blacks didn’t have or couldn’t. Among the white trade unionists whom my father knew was a most remarkable trade unionist who had really started and become the General Secretary of the Women’s Garment Workers Union on the Witwatersrand and he was a very powerful trade unionist and he knew my father and my father knew him . Solly Sachs S A C H S. I don’t know if it’s a name you’ve ever heard, but anyway my father told him I was coming to the bar and his union was often in litigation particularly as by that time the nationalist government had come into power. They had come into power in May 1948 when General Smuts was defeated and the nationalists became the government and they were very down on any trade union which they thought was very left wing and Solly Sachs was certainly left wing and his trade union therefore was engaged in litigation with the government and he himself had been engaged in a number of libel actions because the pro nationalist newspapers had defamed in in many ways. Well the point was that during that first year he had instructed his attorney to brief me in some small matter regarding a trade union and both to well not so much to give advice but to appear before some tribunal which was investigating. He had become dissatisfied with the counsel who had been appearing. He thought he had become , he overcharged, well anyway he got me into that. And later that year, he had a South African Passport and the government simply took his passport away and he had brought a case to say it was illegal and that he should get it back

[1:04:27] He had lost that case in the courts but he was appealing to the Appeal Court of South Africa which sat in Blomfontein and again, I think he wasn’t very satisfied with

39 his advocates and he briefed me to do an opinion on whether there was a prerogative power to take someone’s passport away and I went into the prerogative both in England and in South Africa and I gave him advice that there was no such prerogative so when the case came to the Appeal Court which was at the end of 1949 he briefed a QC from Cape Town and he briefed me as junior counsel so that was the first time that I appeared in the Appeal Court of course I didn’t speak. But a lot of the argument was based on my opinion and that case was won by Solly Sachs in the Appeal Court. It was held that there was no prerogative power to remove his passport and that was a cause celebre and a leading case. Of course later on it was its practice – the government used its power in parliament to reverse cases and they passed a law which gave the government complete power over issuing and withdrawing passports. And after that I got other cases, not only for Solly Sachs but for other trade unions. And I did a lot of trade union cases and did cases for trade unionists who under the powers which the new government took, gave them powers to ban people to order that they could no longer be trade unionists and they couldn’t address meetings or attend gatherings and in that way I came to do what you might call political cases against the government the apartheid government and that was the direction in which my practice in what today I suppose you would call human rights work constitutional, in part human rights in part administrative law in part and that was the direction in which it has remained and I did many of those cases including cases for the press because the government was very hostile to the English language press and there were prosecutions of editors and matters of that sort. So many of my cases over the years that I practiced in South Africa were cases of that sort. I mean in the course of my practice in South Africa, here it might not have been the same I also became a commercial lawyer. I did a lot of company law work and commercial work but at the same time I did this what you call political or human rights works and so in the course of my practice in South Africa I must have acted for at least half a dozen editors of leading newspapers which would have been in this country the equivalent of The Sunday Times or The News of The World or The Daily Telegraph or The Guardian, cases which were not merely libel actions. I did a lot of libel cases but cases where the editors of the newspapers were actually charged with criminal offences. You see there was legislation which made it an offence to publish false information about what was going on in prisons. But newspapers none the press continued to print reports that people had made to them about conditions in prison and so the editors would be criminally prosecuted or they would for example be a government embargo on information of certain sorts and they would none the less publish. And they would be criminally prosecuted. Also professors of law. I have acted for professors of law whose publications were regarded as subversive so I had that practice throughout all my years at the Johannesburg bar. Similarly in criminal cases I acted for clergymen. I acted for the Dean of Johannesburg when he was charged with terrorism. I mean the Anglican Dean Of Johannesburg. After the shooting of a lot of people by the police in Sharpeville where there was an enquiry, I was briefed by the bishop of Johannesburg to act at the commission of enquiry for the families of those who had been shot. So I had that sort of practice and at the same time a trade union practice. At the same time I was cases including criminal cases for people like members of the African National Congress who were charged with treason. So it was a sort of practice which I would never have really had if I had come to the English bar. A practice which combined commercial work for mining companies and other companies with political work for enemies of the government.

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[1.11.21] Was there any conflict? Were you a less attractive advocate to a big mining company on account of your political cases?

[1:11:33] Well you see that was something very different from England. In England I don’t think people could have done that at the bar. But no...it didn’t at all. I did a lot of cases for large insurance companies and after I had taken silk and become a senior counsel and was doing that political work, I also had a general retainer for the Anglo American Corporation and De Beers. And so it was an interesting thing about South Africa. People somehow realized that an advocate who appeared in these cases was doing his professional duty. I mean I never, I didn’t have cases for the government. The government wouldn’t have briefed me. No even there, there are a couple of exceptions. When I was a silk and had become a fairly senior silk I was on two or three occasions briefed by the government on income tax appeals. So I mean they would never have briefed me in any case which had any sort of political overtones or undertones but they briefed me as I say on two or three occasions on income tax evasions for them

[1.13.14] Do you think that was one of your strengths then as a political advocate that you were respected in the commercial world as well? That it added to your status?

[1.13.23] Well, I think it might have. I’d have found it...I don’t know if I could have stood it if all I ever did was political cases. I suppose it did in a way. I suppose it also gave me a certain objectivity. But it made for an interesting professional life. And there again you see on the political side, people I would never have met before I mean like African political activists and other political activists I’d have probably never even met if it hadn’t been for those cases .

[1.14.35] Well that is quite a large span from your starting at the South African Bar to your coming to the English bar and becoming a QC so it would be quite good to spend a little more time on the early days. Putting your early life in the bar in South Africa in context what is going on politically at that time.

[1.15.08] Oh that’s quite a long one

[1.15.15] Personally

[1.15.20] Well I was never a political activist. You see I saw my father’s life in politics. He had been a member of parliament for all those years but at the end it was a life of disappointment. Because at the end all the principles he’d stood for by 1948 when the nationalists came into power had been completely overturned. And of course, he had never had political office. He had never been put in the cabinet and then again, he had a political flair and he liked addressing public meetings. He even liked canvassing in elections. He like speaking to people and meeting them and trying to persuade him to vote for him. That is something that I would never ever [1:16:15], I would have died rather than go to someone and ask for their vote. But I did have political interests apart from my profession and I was a member of a political party while it existed. I was a member of The Liberal Party of which the leader was Alan Paton the writer. But then the continued existence of that party was made impossible by the government legislation. But I never stood for any sort of political office. I never tried to get into local authority or parliament, so to the extent that I had any political

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contribution to make it was through my professional work I think. Well perhaps next time you’ like to talk about that some more?

[1.17.19] I would very much like to Sir Sydney.

INTERVIEW 3 – 26TH MARCH 2008

TRACK 4 - [1:20:59]

[0.16] Well, as I think I’ve already told you, I got briefed by trade union people, that is, say, officials of white trade unions, mostly, and various sorts of cases for them, cases about industrial negotiations, cases of deformation, cases and suchlike, but perhaps I should tell you about some of the cases which illustrate what I said earlier, namely that through some of the cases I did, I did get to know political leaders, particularly black ones, whom I would otherwise have had no contact with. And, I can really remember how that started. The most radical opponents of the government, who were not represented in parliament, were black organisations, like the African National Congress and its allies in the Cape coloured community and in the South African Indian community, they each had separate congresses but they co-operated in what they called the Congress Movement. And there was also a white organisation called the Congress of Democrats, which was really, by democrats they really meant congress of communists, but they were all radically opposed to the government and had no representation in parliament. In the 1950s there was a very large and successful tobacco company, run by Afrikaners, and the head of it was a very remarkable industrialist and businessman called Anton Rupert who later became internationally known. Anyway, one of their advertising slogans was that they claimed that in the making of their cigarettes only white hands were used. The Congress Movement decided to organise a boycott of the products of that company and, of course, it was directed largely, I suppose, to black people who were a big market for cigarette smoking. Anyway, the consequence was that the Rupert organisation brought an action for an injunction or an interdict, as it’s called in South Africa, to stop the boycott and I was one of a number of counsel then briefed by the Congress Movement to oppose that. Well, eventually, the case was settled but I think that was the first time I had any professional contact with those movements.

[4.01] At the end of the 1950s, there was a great treason trial in South Africa, the leaders of all these movements were charged with High Treason and there was a long preparatory examination in which I played no part, but then in, I think, it was August 1958, the trial proper started in a court in Pretoria. Of course, none of the existing courts could accommodate a dock with 90 accused people all at the same time, and a large, but disused, synagogue, in Pretoria was converted into a courtroom. It was called The Old Synagogue and it became a courtroom and it remained a courtroom for big trials for many years. Now there, I was one of the junior counsel – there was a big team of counsel with some very distinguished senior counsel, leading counsel at the Johannesburg Bar, and I was one of the juniors, and the accused included, as I say, most of the principal leaders of these movements, although for various technical reasons, the prosecution didn’t charge all of them at that stage. Now, we fought that case, the basis of the prosecution case was that these movements were conspiring to overthrow the state by violence. The defence, in short, was, yes, they wanted to get rid of the apartheid state and white domination, but they were going to do it by non-

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violent means, by industrial action, propaganda, boycotts of government institutions and so on.

[6.28] The evidence against them consisted of literally hundreds of speeches made by, over the past few years, by members or leaders of these organisations, and also literally hundreds, probably thousands of articles they had written, journals they published and going back for years and the prosecution case was that this showed that they were prepared to use violence, that was the big issue. This case ran from August 1958 with some breaks, until March 1961, when they were eventually acquitted, all 90 were acquitted. But among those accused there were some very, very, interesting people. The way we did it, we had a team of I think it was about 8 counsel and we were all appearing for all of them, but so that more than one counsel would be enable to cross examine the state witnesses, each one of us also appeared for some individual and I appeared for someone whose name I knew but whom I’d never before met who was one of the rising young leaders of the African National Congress, namely Nelson Mandela and because he was my particular client, it meant that before he gave evidence I had to have many consultations with him to discuss what his evidence would be, and when the time came for him to go into the witness box, I was the one who examined him, so firstly I got to know him well and secondly, of course, through this, I got a insight into the thinking and philosophy and the history of that whole movement which dated back to 1912. And, also because, you know, in order to do what I had to do in the case apart from examining Nelson Mandela, I had to learn a lot about the history and objects of the movement and for that reason I had to have meetings with other leaders, one of them was Oliver Tambo, who later, who went into exile and became the leader of the African National Congress, its President, and also the other remarkable man I met was Chief Albert Luthuli. He was the President then of the African National Congress. He had originally been charged but by the time they fixed on the 90 to charge, they left him out a bit and that was for, I think, a very good reason because he was certainly not a communist and he was certainly committed to non-violence. You see, part of the state case there was to put in all the speeches and writings of those members of the Congress Alliance who were communists, and there were many of them, and the state case was that all these congresses were really communist fronts and that they were out for a communist revolution, and there was expert opinion, which the state led expert witnesses on communism who were had to cross examine, well anyway, Chief Luthuli, we called him as a witness, although he wasn’t an accused, and he was really one of the very great men of South Africa – a lot of people, I suppose, have either forgotten about him or never heard about him, but he was a wonderful character and he was an educated man but not a highly educated man. I think he’d had a full school education and I think some training as a teacher, but he’d never studied philosophy or political science or anything like that, and the remarkable thing about him is that when he was under cross examination and really very strenuous cross examination, he would be asked questions about things which he had never written or spoken about or possibly thought about such as what would your view be if you ever came into power about immigration into South Africa, and the amazing thing was that simply on the basis of his strongly held beliefs and principles he was able always to give a principled answer, very impressive.

[12.13] Another very impressive man I met was also one of our defence witnesses, one of the very top men in the African National Congress, a man called Professor Z K Matthews.

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Now he was a professor at the black university college in the Eastern Cape and he had degrees from London University and I think from somewhere in the United States, and he was a really sophisticated and he merely understood politics and he was certainly no communist and I spent a lot of time with him and he was also remarkably impressive. And, apart from the interests of the case itself, it taught me something about the character and calibre of some of these leaders – their principles and I would say their moral strength. Of course, they weren’t all like that, there were some who were really, I thought, pretty violent. At all events as I told you, they were all acquitted at the end because the court found that it had not been proved that their policy was a policy of violence. It was just at the end of that case that all these organisations were banned and became unlawful organisations, so they could no longer operate openly and lawfully, and it was at that stage, at the end of the case that people, some of the leaders, went abroad, they went into exile to work from exile. Others went underground in South Africa, and, of course, they changed their policy after that trial. They did decide that they would have to use methods of sabotage and military methods in order to achieve their objectives, and when they went into exile they founded a military wing and they were in exile and unlawful from that time at the end of the treason trial in early 1961 until 1990 when Nelson Mandela came out of prison. He was imprisoned I think from 1963, but that was for something else, he had remained in South Africa, he’d gone underground, but he was caught.

[15.14] And, what were the conditions like for you as an advocate that length of trial, did you have access to the defendants?

[15.26] Oh yes, it was most extraordinary. This was a trial for High Treason. But because of the length, the fact that these people had been arrested so long ago, and they were, many of them, there were people of standing in their own communities, and this was one of the extraordinary things about the legal system under apartheid, they were all out on bail! Many of them just on their own recognisances, and the majority of those who were accused and standing trial in Pretoria, actually lived in Johannesburg or the townships outside Johannesburg, and it meant the trial in Pretoria was fixed in Pretoria over the objection of the defence, and the extraordinary thing was that somehow the accused people had to get from their homes in and around Johannesburg to Pretoria every morning. So, the government supplied a bus to take them to and back, to and fro, every day, I mean, most extraordinary in that way. There was a time when they were imprisoned in, I think it was, March 1960, there was a big black protest in a township about 30 miles from Johannesburg called Sharpeville, and large numbers of these protesters gathered at the police station in Sharpeville, and there was a big concentration of police there, and the protesters were peaceful, they had stood there for most of the day, and then someone on their side of the fence, there was a fence around the police station, I think threw a stone or two or a few stones, and the long line of policemen with revolvers and submachine guns, without any order, opened fire on the crowd and over 80 of them were killed, mostly shot in the back as they were running away, and something like 140 or 150 were wounded, had bullet wounds, and there was a great international outcry about it and very strong feelings in the black community and the government declared a state of emergency, and during that state of emergency all the accused were imprisoned in Pretoria, and that shooting at Sharpeville resulted in a judicial commission of enquiry and the then Bishop of Johannesburg, the then Anglican bishop, his name was Ambrose Reeves, set up a fund for the victims of this shooting, and he also considered that before this judicial

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commission, this judge, the inhabitants generally of Sharpeville should have legal representation and I was briefed to appear for them before this commission, so I spent about two months doing that.

[19:23] How did it come about, that brief, did an attorney brief you?

[19:31] Oh yes. Now both in the treason trial and in Sharpeville, the briefing attorney was a man called Michael Parkington, a most remarkable man. He was originally from England and he had been a top legal scholar at Cambridge. That came – he met and married a South African girl and came to be an attorney in South Africa, and his work had mainly been in insurance, but he came in to the, what I call the political trial picture, during that cigarette boycott which I mentioned, and he was a brilliant chap and he was asked to be the attorney for the accused at the treason trial and he was really the organiser. Of course, with 90 accused and 8 counsel, you’ve got to have a lot of witnesses, needs a lot of organisation, and he did it. And similarly at Sharpeville, by that time, he had become very well known and the Bishop of Johannesburg asked him to be the attorney and, I mean, I think that at that commission of enquiry the action of the police was pretty well exposed. It was one of those remarkable things that happened, there was a newspaper magazine photographer who was there, now I have forgotten his name in my regret to say, although I could find it out in some book or other, but he was out in the fields outside the police station and he was looking on from there and he heard shots, bullets flying and he threw himself to the ground but he had his camera and he took a series of photographs of the police firing on people who were running away from them. So the fact that the police were firing at a fleeing crowd was made absolutely obvious. Anyway, …

[21:56] Did you have access to that and use those photographs and evidence?

[22:01] Yes, and we called that photographer as a witness. And, of course, the police had no answer to that. But it wasn’t a case where the officer in charge of the police had ordered them to open fire, when stones started to fly they got scared, someone shot and then it went right down the line. And, they just went on firing until their ammunition was finished.

[22:27] Another very interesting thing then about, in those days, about, legal system, there was this sort of feeling of legality, there was a strict rule in the police that of course, all fire arms issued to any policeman had to go down in a register and at the end of every day if a policeman had used any bullets he had to come and sign the register, so they knew where all the bullets had gone and they would count them. Well this happened after that day at Sharpeville, so the police had records of how many bullets each policeman had fired and apart from the photographs the evidence we had was that we got the judge to order the police to bring these records. Now these sten guns which they had, had a magazine of about I think, 24 bullets, and then they had to take the magazine out and put in another magazine, and these records showed that some of these policemen had used three magazines! So in other words, although the people were running away, there was no suggestion of an attack on them, they just got trigger happy and they put in one magazine after another and that’s why there were so many killed and wounded.

[23:57] Anyway, those were quite fraught days. After that, of course, there were still political trials because many of the people in congress mood had just illegally carried on what

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they had been doing. And it was in those days also that the government introduced house arrests, that is without any trial, they could order people to be house arrested and sometimes because the order was technically wrong or something like that, I would have cases for them which came into court to try and get these orders set aside, occasionally one won, such occasions. And that’s why I did, right until the time I left South Africa, I did cases of this sort and during the treason trial, of course, I could do hardly any other work, but after that I continued with my ordinary practice, which was a general commercial practice and …

[25:23] Could I just ask, for example, the treason trial you have mentioned, 8 counsel, 90 defendants, how were you paid and how was the attorney paid?

[25:37] Well, when all these people were arrested, a fund was set up, it was the brain child of the then Archbishop of Cape Town, the Anglican Archbishop, his name was Joost de Blank, and a treason trial defence fund was set up and it collected money in South Africa and it had charity auctions, art and that sort of thing, but the main funding came from England. There was a defence fund set up by Cannon John Collins, a Cannon of St Paul’s, and large amounts of money were collected here in England and also from I think some of the Scandinavian countries. Now, I mean, we were all paid but of course we all did it for very reduced fees, but nonetheless that’s what we had to live on for three years, so we were paid and we were paid through this treason trial defence fund but as I say I think most of the money coming from the Cannon Collins’ defence fund in London, and that was a fund which continued right until the end of the days of apartheid. A fund to support, to give legal defence and also to provide some sort of subsistence for the families of people who were imprisoned on political grants.

[27:36] And that effect, you’d have thought that there was international support for the work you were doing and the defendants you were representing.

[27:49] Yes. Oh well, we felt that we did have that international support. When the trial started in Pretoria in August 1958 there were observers who came, both from England and from the United States. The observers who came from England were sent out, I think, by the International Commission of Jurists and they were someone who was then a QC in England called Fred Lawton, he later became Lord Justice Lawton, and with him was Louis Blom -Cooper who was a well known junior counsel who later became a well known QC in England, and from the United States there came Erwin Griswald who was Dean of the Harvard Law School, and he somehow became a friend of all of us who were counsel there and kept in touch and helped with various things, getting people to do research for us, and so on. But that’s how that happened.

[29:06] And it was actually really through Dean Griswald that a few years after the treason trial I took a sabbatical and my wife and two younger children and I spent a semester at Harvard Law School, I was a visiting scholar there, so I took six months off from practice in Johannesburg. My wife always had a theory that one should do something different every twenty years or so, well it wasn’t twenty years but I took a sabbatical and in fact immediately after the treason trial we took a sabbatical in London for four months, just believed in taking these long breaks when one could get them.

[30:06] No difficulty about you leaving the country after the treason trial?

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[30:11] No, it was a very strange thing, as I said, it was odd, the government somehow recognised that advocates that appeared in these cases were doing their professional duty. There was, I should qualify that, that was true of white advocates. There were a few black advocates, not in the treason trial, but a few black advocates in practice, and they had a very hard time from the government. But I didn’t. I was not briefed by the government, but by then they had powers to withdraw passports and to prevent people leaving the country, house arrests, but I was never subject to that.

[31:08] And, you talked about the treason trial and Sharpeville inquest, very intense times – the eight counsel, had you known the other counsel before the trial and what was the working relationship like?

[31:26] Oh yes, we were all at the Johannesburg Bar.

[31:32] Not Cape Town?

[31:37] [Laughter] No, no – we all came from Johannesburg. We all knew each other well. But got to know each other better, obviously, though our leader was a most brilliant advocate, possibly the most brilliant advocate I’ve ever known called Issy Maisels – and he was a wonderful cross examiner and a very powerful arguer and the one of the other leaders was a man called Bram Fisher. He was an advocate at the Johannesburg Bar. He was a QC by then, and his big practice was in insurance work and also mining. He was an expert on mining law and he acted as an advocate for big mining companies, although it was known always, because he never made a secret of it, that he was a leading communist, but he nonetheless was briefed by mining companies and insurance companies. He was the most wonderful man as well as being a very good advocate. And so he was the second leader in the case. He had a very sad ending to his life, which I was concerned, many years later. The Communist Party had been in illegal form right from the 1950s but he continued to be the leader, the underground leader, of that party, and eventually in the 1960s he was arrested and charged with having carried on these illegal activities. Now his is such an extraordinary story, at the time he was arrested he was about to go over to London to appear in the Privy Council in an appeal from what was then Rhodesia in, I think it was a patent case, patent action. And his clients who were large companies and his instructing attorneys who were very well known in Johannesburg, applied for bail on his behalf and gave undertakings, and he gave an undertaking, that he would come back from England, and that’s what he did, he went to England and he appeared in the Privy Council while he was awaiting trial, and then he came back to Johannesburg and he went on trial. But during that trial he decided that, it looked as though he would probably go to prison, he felt his first duty was to carry on his underground political activities, so at that stage he, well in the middle of the trial, he skipped bail and he disappeared. And he went underground, I mean as we learned later he changed his appearance in a most remarkable way, different sort, had his hair cropped very short, he grew a beard, changed the sort of glasses he wore, but anyway, for several months he was underground. Now, he was a member of the Johannesburg Bar and the Johannesburg Bar acting under pressure from the government brought proceedings to have his disbarred on the basis that, being on bail he had, which means that you undertake you’ll appear in court, he had skipped bail, and a well known attorney in Johannesburg got a letter from him asking him to appear for him to oppose this striking off and asking him to brief me, I was by then a silk, a leading counsel, asking him to brief me and a junior counsel, to appear for him, which I did. And it

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was heard by a court in Pretoria and with some reluctance, I think, the court decided that he had to be struck off the role of advocates, which happened and then a few months later he was caught. In the course of his political activity he had seen various other people who were underground communists, and one or two of them were caught, and under very great pressure, put in solitary confinement and so on. And they gave something away, I think, an address they’d been at and something like that, so the police caught Bram Fisher and he was charged with plotting sabotage, running an illegal organisation and so on and then he asked me to appear for him at his criminal trial which I did, and the evidence against him was very, very strong. He made a statement from the dock explaining why he had done what he did, and he was sentenced to life imprisonment and he became very ill in prison. Now, he was absolutely hated by the government because he was an Afrikaner and from a well known Afrikaner family. His father had been Judge President of the Orange Free State. His grandfather had, just after the Boar War, been Prime Minister of the Orange Free State, so they regarded him as a traitor to Afrikanerdom and he had a very ill son, who died when he was in prison and he was not allowed to go to the funeral, and eventually when he was dying they allowed him to go into the custody of his brother, who was a doctor, but no-one was allowed to visit him there and he died there, and it was a very sad ending to his life, he had been a great man, and although his politics were – I mean he was a classic card carrying communist, but he was a remarkable person to have known and …… he had an amazing warmth about him.

[40:00] Just before he had gone underground, my wife and I had our fourth baby and Bram Fisher had come up to see us and he saw the baby. Now, when I saw him for the first time months later, the first time I saw him again was at court, I came to court to see him where he was just being charged, and he came up from the dock and we said hello to each other and the first thing he said to me is, “Is the baby crawling yet?” He was on trial actually for his life because the crimes for which he was charged carried a death penalty and, I mean, he was always able to think of other people and he was very philosophical about it. But he was one of the great men I knew at the Johannesburg bar.

[41:24] Anyway, there were other cases of a different kind. For some reason or other I developed what you might call, an ecclesiastical practice because, I can’t think when it was, oh yes, it was in the early 1970s, 1971, I think it was, when the then Anglican Dean of Johannesburg, whose name, strangely enough, was Gonville Aubie ffrench- Beytagh, and he had, while he was Anglican Dean of Johannesburg, he had, was running a fund which was to look after the families of political prisoners who were on Robin Island and pay for their train fare for their times, I think, twice a year, I think, they were allowed to visit their husbands or fathers, and the government had the theory that he was receiving the monies which were sent to him from Canon Collins’ organisation, The Canon Collins’ Defence Fund, because they passed a law in South Africa that made that fund unlawful in South Africa, and made it an offence for anyone to receive money from it, so wherever his money came from it came through a woman who we knew in London, through her accounts, she was a woman of some means, but the government though that he was getting it from an unlawful source and secondly that he was using it not for its stated object but in order to fund the unlawful African National Congresses activities in South Africa. That at least I think was untrue. Where he got his money from or why, to this day, I don’t really know. At any rate, he was charged with terrorism on the basis that he was supporting

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organisations which were terrorist organisations, because they were prepared at that stage to use violence, they occasionally placed bombs on pylons and things of that sort, so he was tried by a judge, also as it happens in that old synagogue in Pretoria, and his solicitor asked me to act for him and I was a bit doubtful at first. I thought at first that perhaps the Anglican Dean of Johannesburg should have defence counsel from his own religious community. But, anyway, they wanted me to do it, so did it with a couple of very good juniors, and that was a long case, it lasted, I think, two or three months, and he was found guilty of terrorism by the judge. The judge didn’t believe his evidence what he was doing. It was a very, very political judge. A very pro-government judge.

[45:37] Anyway, he was under the Terrorism Act the minimum sentence was five years imprisonment and so he was sentenced to five years, which meant five years because political prisoners got no remission and they got no parole. However, we took that case on appeal to the appellant division of the court in Bloemfontein, a three judge court, presided over by the then Chief Justice Ogilvy Thompson, and he was acquitted on every count on appeal. They felt that the judge had taken a completely wrong tack. He hadn’t evaluated the evidence properly and that he had no basis for disbelieving the Dean of Johannesburg. So that was one of the cases that I did, but the Dean of Johannesburg was a very strange man actually. In his young days he’d been in New Zealand, he’d gone from England to New Zealand, where he was a sort of tramp. He really just wandered around, he did nothing and then he came to South African where he was really doing more or less the same sort of thing when he met Alan Paton the novelist, who was also a very devout Christian. He became the leader of the Liberal Party which I became a member, and somehow Alan Paton spoke to him and he changed his life and he became an ordained Anglican priest and when I met him he was the Dean of Johannesburg and a very active dean too, but he used to preach sermons which were very anti-apartheid and he was a thorn in the flesh of the government.

[47:58] Could I just ask you a little about, in the last session we had, towards the end, you mentioned that you’d been a member of the Liberal Party and that it had been funded by Alan Paton, and you have been talking now about Bram Fisher and his forthright communist views, could you just explore a little bit, you joining the Liberal Party, how that came about.

[48:30] Well, the government party was the apartheid party. The main opposition in parliament was what was called the United Party, and they were against the government on many particular pieces of legislation. But they still believed fully in segregation and they didn’t believe in votes for blacks and the Liberal Party was a party which the essence of it was that it was against racial discrimination of any sort and it’s policy was universal adult suffrage, black and white, with equally, and of course that was not popular with the white electorate and they used to hold the … put up candidates at parliamentary or local government elections but none of them ever got in. But one of the other tenants of the Liberal Party was that its membership should also be open to everyone. Now shortly after the Liberal Party was founded, there was a break away from the united party and it became the Progressive Party, but for many years that party also didn’t do well at elections, they, for many years, they had only one member that was Helen Suzman, a remarkable woman, a remarkable member of parliament, but they believed in having blacks on the voters role but on the

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basis of a qualified franchise, must have a minimum education or proper qualification and the membership was whites only. Well the reason why the Liberal Party packed up was that the government passed an act saying that no political party could have both white and black members and making any such party unlawful, so rather than, say, well, we are going to change our constitution to have white members only, the Liberal Party just dissolved itself.

[51:20] Which is a very good exposition of the Liberal Party but not necessarily about why you came to join it.

[51:27] Well, it was the only party with the policy which I could approve of. I actually had very little time for the Congress and Democrats which I thought was, in spite of being allied to the African National Congress which had wider object, it was simply the communist party under another name and it was when I say a Communist Party, it wasn’t a theoretical communist party, it believed in the common turn and the Soviet Union and it just followed the common turn party line, the international communist party line. So the Liberal Party was the only party which I felt I could really belong to with any enthusiasm. So I canvassed for it and I tried to collect a bit of money for it, it was very little success. But that was the party I belonged to. A very small party.

[52:32] And how long did it last?

[52:40] I think probably, hard for me to say, making a guess, I think probably about five years.

[52:48] Thank you very much.

[53:08] I wanted to tell you a story about ffrench-Beytagh which happened actually before I met him but it’s just such an illumination of the attitude of the South African Security Police. When they arrested him, they kept him in solitary confinement and as they were allowed to do under the law then, they had the right to keep him incommunicado, no lawyer could come and see him, no family member, no doctor of his own choice, no member of his congregation or bishop, no-one was allowed to see him. Often, very often you see, a person would be kept in that situation, sometimes for weeks months before he was brought to trial, on the basis that during that period they would get a confession out of him by threats, by assault, by torture. Now, although ffrench-Beytagh was the Dean of Johannesburg…

[54:27] … he still remained a United Kingdom citizen – he’d never become a South African citizen. And so, the one person who was then was trying to get access to him was the British Consul, there was a marvellous British Consul in Johannesburg who wouldn’t take no for an answer from the authorities. And the police knew that very soon under diplomatic pressure they would have to let the consul in. And so they couldn’t beat him up, they would beat people up and wait for the wounds to heal before anyone could see, but they couldn’t do that with him. But they wanted desperately to get some sort of confession out of him. So they did what they do, they said, “Here is a pad and a pencil and you must just write.” Well, he didn’t want to write. So what did they do? They did not permit him to wash and they did not permit him any change of clothes, and when they gave him his meals they didn’t give him any utensils, no knife or fork or spoon, he had to eat with his fingers and was not allowed to wash, and he

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told me that he felt so filthy and so degraded that he would have told them anything just to get a wash and a change of clothes, and after about six days the British Consul gave in, was allowed in, and this consul told me afterwards that the Dean actually stank and this was, you see, there was no limit to the ingenuity of torturers and they found a way. And in fact he did write out a statement, but I mean, he had nothing to confess. He just wrote out a statement of what he had done, how he had come to do it, but that was the way they treated him. They were very ruthless but they were also very clever, security police, they weren’t fools, they knew their man, they knew what would get him, and that was this degrading treatment.

[57:29] Anyway, I was saying, that I had developed a sort of ecclesiastical practice. I acted for another bishop who was involved in a defamation case because of something it said in a sermon or something like that. But I also came to know and to act for Bishop Tutu, before he became Archbishop, and he had been Dean in Johannesburg, then he became Bishop on Lesotho, Anglican, and then he left that Bishopbrigg to become the Head of the Christian Institute and this was an institution which the objective was to I think to, apart from propagating Christianity, one of its objects was to show that the irreconcilability of Christianity and apartheid as practiced in South Africa, and so it had a political element to it undoubtedly. But it was put on a Christian basis and not on any other political basis, certainly not on a socialist basis or anything like that, and the government were doing its best to get at him. And they way they got at him was through the finances of the organisation because the finances had been horribly mishandled by the treasurers and the accountants. The Christian Institute because it was run on money collected from other churches and from charity and so on, felt that everyone there, including the, Desmond Tutu had to take the lowest possible salary, and that included their bookkeeper and accountant, so they were pretty hopeless and there’s no doubt at all that money was just wasted. The sort of things they did was to use their monies to buy tractors for black farmers but they didn’t get people who taught them how to use it, so there was a lot of that, tractors rusting in fields somewhere, but what the government did was then to set up a commission of enquiry, presided over by a judge in order to investigate the Christian Institute and what they were trying to show was two things, first that the money had been used for political purposes and secondly, that the Christianity of the Christian Institute was no more than a cover for political anti-government political activities. Well that’s what they tried to do. They couldn’t show that the funds at the Christian Institute had been to support political organisations. It simply hadn’t.

[1:01:33] But they attacked Desmond Tutu very, very strongly on his theology, I think they said, this liberation theology is really communism under another name. Anyway, I was briefed to act for Tutu and the Christian Institute and he was of course the main witness. And he went into the witness box and I just asked him a few introductory questions about who he was and his history, and then I asked him to explain his theology and his policy in South Africa and why he espoused it and why he was anti- apartheid and he took no papers into the witness box with him, all he took was his bible, and he just spoke for more than hour just explaining his theology by reference to the bible, starting in the Book of Genesis going right through the old and the new testament. And he silenced the prosecutor who was supposed to cross examine him and the commission just by the force of his personality and his clear exposition of his theology. And they really had no basis for closing down the organisation which they

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wanted to do, which they didn’t, and that’s how I got to know Desmond Tutu, known ever since.

[1:03:32] And had you any indication that that’s what he was going to do?

[1:03:37] Oh yes, …. He was going to explain it from the bible. But I just let him do it, I didn’t ask him leading questions, he just did it.

[1.04.04] There’s one thing I can say, that I have done at the Bar, which I would take a bet, no other advocate in any other country, I would say, could match. And that is, I have appeared as Counsel for three winners of the Nobel Peace Prize, Chief Albert Luthuli, Nelson Mandela and Desmond Tutu – they have all been my clients, actually, in the box, you know. And I don’t think that there’s anyone else who’d had, I don’t know whether you’d call it, a bit of luck or privilege or it just happened. All of them became Nobel Peace Prize winners. I had actually, another contact with a fourth Nobel Peace Prize winner, it was after Sharpville when there was a state of emergency, and many people, political people, including even some members of the Liberal Party, were in detention without trial, and Sean MacBride was sent by the International Commission of Jurists to see what he could do for these people who were imprisoned. Now Sean MacBride, do you know who Sean MacBride was?

[1:05:48] Do explain ……

[1:05:50] Well, Sean MacBride was an Irish barrister and as we were in South Africa he was an SC, that’s Senior Counsel, after they became a republic and he had at one time when there was a coalition government in Ireland, he was the leader of a small fairly left wing party and he became a cabinet minister in Ireland, he was their Minister for Foreign Affairs. As such he’d been at the United Nations where he had met the South African minister for foreign affairs. And he got on well with him because Sean MacBride’s father was Major MacBride who during the Boer War raised an Irish Brigade to fight for the Boers against the British and so the name of MacBride was well known in Afrikaner nationalist circles and of course he was a famous man, his mother as Maud MacBride, and do you know Yates’ Easter 1916? Well MacBride, the older MacBride, was one of those who was shot in 1916, so anyway, Sean MacBride, the son, came to South Africa and somehow he was sent to someone, someone had said he should talk to me and, apart from just being, meeting and having a meal and so on, he wanted to know from my wife and myself something about the legal set up and the position of these people who were in detention and under what laws and so son, so I gave him some advice and in his later life he became United Nations Commissioner for Refugees and he won a Nobel Peace Prize, so you can say it’s almost three and a half!

[1:08:13] Three and a half. It’s a matter of great pride for you clearly to have represented, because it seems to be a different matter, meeting than actually representing people.

[1:08:27] Yes, but I mean, they weren’t Nobel Peace Prize winners of course when I acted for them, that’s what they, but they somehow all became that. Anyway, I did continue really for a very long, well really until I stopped practice in South Africa from time to time, to do a political case, after the ffrench-Beytagh case I suppose the next case I did of note, was the inquest into the death of a black activist called Steve Biko. He died in police custody and there was an inquest and I acted for him there, and well I, it

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was a well known inquest. And there Steve Biko, as a black leader, was much better known in England and American and in Europe than he was among whites in South Africa, and after he died the South African government was absolutely astounded at the international uproar about his death and that’s why they decided they had to have a public inquest and I acted for Biko’s widow and there it was a public inquest and the police officers concerned were all called, cross examined and the police doctors and I called specialist doctors, and we showed pretty well that he must have been assaulted in custody and because he was in a coma in his last days in custody but of course the magistrate who presided was not prepared to make findings against the police and he just said that he’d died of unknown causes, no-one to blame and that of course, that inquest made Biko’s name generally known. He would have been a great leader, I never met him in his lifetime, but he was obviously a very remarkable young man.

[1:11:04] Had you been aware of him?

[1:11:10] I’d heard his name, didn’t know his standing or status or what sort of person he was, I knew little about him, but he was obviously a very considerable personality and particularly in the Eastern Cape black community. Now that inquest was widely reported in England and also in the United States and the inquest was made into a play here in England the first I heard about the play was that I think for to raise money for some South African causes it was done as a play reading here in London and my part in it, which was the main part really, because the play was simply based, taken from the transcript of the proceedings. Every word in the play was something uttered in court, although it was cut down of course. My role was played by Ian Mckellan and it was played, put on in New York and other places in the United States and sometime in the mid-1980s it was produced in London at The Riverside by Albert Finney and my part was played by Albert Finney, and it was also made into a television film, and it was very, very odd to hear my actual words, uttered by Albert Finney and to have him standing on the stage when the magistrate on the stage called him Mr Kentridge, it was very odd indeed. So that inquest was in many ways quite an important one as revealing again to the world what things were happening in South Africa, and, what else did I do?

[1:13:43] Yes, really one of the last cases I did in South Africa before I gave up practice there was for something called the End Conscriptions Campaign, that was a group of young white men who were campaigning against conscription because they said the South African army was conscripted to fight in Namibia against Namibians who simply wanted their country to be liberated. And they were the victims of dirty, various dirty tricks, by the South African Army and I appears for them to get an injunction to stop the South African Army doing this and so we actually succeeded.

[1:14:50] Then – I don’t know whether you ever heard of the Sharpeville Six, this was in the late 1980s, there had been, I wouldn’t call it quite an uprising but some sort of riots in the Sharpeville, the same township where the shooting had taken place, nearly thirty years before, and six people were charged and in the course, one of the black officials there was murdered and six people were tried and it was not suggested that any of the six people who included a woman had actually killed a man physically, but they’d been part of the crowd and egging on the killers. It was very nasty killing, a man was set fire to – at any rate in the crowd there were these people and it was said that these people were shouting things like “kill him” which may have been true of some of them. Anyway, all six of these, although they hadn’t actually physically taken part in

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the killing, were all found guilty of murder and sentenced to death and they took it on appeal and their appeal failed. I didn’t have any part in that, but shortly before they were due to be executed some further evidence came to light and so, what the families wanted was that a further appeal to the appeal court in Bloemfontein to try and get them to re-open the matter. There was no president for such a thing in South Africa. Anyway, we were going to that court and at that stage the date for the execution of all these six had been fixed, but when the appeal court said, yes they would hear it, the lower court granted a stay of execution.

[1:17:24] And so I went to visit all those six in prison in the high security prison in what was called death row which is where people who had been sentenced to death were kept and I met them all there, and as I said, their date of execution had actually already been fixed and it’s fixed at about five day’s notice and they told me that after it had been fixed they had been, all of them in their cells had been visited by the Sheriff of Pretoria and what he had come to do, what he did, was to measure their necks and similarly with the one woman who was kept separately, and while I and the attorney were there in death row interviewing them there came a sudden, I wouldn’t call it an uproar, but the officer in charge came rushing into the room where I was interviewing the men and said, please, “You must leave, everyone must leave. These men must each go back into his own cell,” and said, “You can wait somewhere else in the prison and you can come back later”, and that’s what happened. And I was told the reason for it. The Sheriff was coming to tell one of the prisoners that his application for clemency had been rejected and that he would be hanged in five day’s time and I was told that whenever that happens there is a tremendous out roar, yelling and screaming and wailing from all the other prisoners who are themselves on death row. So, I’ve always thought that if, if anyone had any feeling that the death penalty should be reinstituted, they should go and spend an hour on death row. Anyway, I took that case to Bloemfontein but it was unsuccessful. The appeal was unsuccessful. But there was very, very strong pressure, particularly I know from the British government, through Sir Robin Renwick who was then the ambassador, and also from the German ambassador and I think from the United States ambassador, so none of those people actually hanged in due course, they were released from prison, and so there it was, and I came to practice in England in the early 1980s, 1979 or 1980, but I kept up my Johannesburg practice until 1987 when I did my last case and closed my chambers there. And I probably left some of it out, but I think that’s enough of my South African practice.

[1:20:55]

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INTERVIEW 3 – 26TH MARCH 2008

TRACK 5 - [1:25:33]

[00:08] So you have been speaking about a lot of the cases you’ve been involved in and your ecclesiastical practice. In the last session you’d also mentioned newspaper editors you’d acted for many of those. Are there any of those cases that come to mind?

[00:27] Oh yes, well I did quite a lot of libel work for newspapers. But I also acted for newspaper editors who got into trouble with the government. The editor probably the largest daily in South Africa was once charged under the Official Secrets’ Act, because he had published something about South African warships being made and built in Portugal, so I acted for him in that case.

[01:09] What was the name of the newspaper?

[01:12] The Star. Then I acted for the editor of a newspaper in Durban who was charged because he had advertised a meeting which had been banned by a government fiat under the laws and he had put in this advertisement, after the ban was gazetted but before he actually knew about it, but he was nonetheless prosecuted, that was a case I did.

[01:51] Then I did a very, very big case, a long case, for a newspaper called the The Rand Daily Mail. That was under the Prisons’ Act, there was an act which said that it was a criminal offence to publish any information about what happened in a prison and that was untrue unless the newspaper could show that it had taken all reasonable steps to verify it. And The Rand Daily Mail which was, I suppose, the leading and most outspoken of the anti-government papers, published a whole series of articles on conditions in South African prisons, and they were prosecuted for that. The editor, sub-editor, were prosecuted. That case ran for, I think, two or three months. I did that sort of case for newspapers. I think I also mentioned that among my clients, I had at least two cases for professors of law. One of them had organised and presided at and spoken at a public lecture at the university and, it was an offence to quote people who were banned by the government, and he’d done something like that. And then there was another professor of law, who’d written an article about the death penalty in South Africa, and he had collected statistics which had shown that black people were more likely to be sentenced to death than white people, and he was charged with contempt of court.

[03:56] Both of those people were acquitted in the end, but there were many cases of that sort, where newspaper editors, papers which in this country would be equivalent to The Times or The Telegraph or The Daily Mirror, The Sun, they found themselves in court. There was one case I did for the editor of a Sunday paper, it was The Sunday Express, and there was an article in this paper which suggested, stated really, that people who were charged with serious offences including capital offences didn’t get proper legal representation, because there was no legal aid in South Africa, and that was transmuted into a serious prosecution for contempt of court, saying people weren’t

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getting fair trials. Well there again, the editor was acquitted, but again, after, a serious case, put up against him.

[05:15] Earlier, as a student, you’d worked for a newspaper, did these newspaper cases, did you feel a particular interest in those or the law professor cases?

[05:32] Well yes, I did feel a particular interest. Partly because of my interest in newspapers, partly because the English language press was one of the few sources of real oppositions to the government and so the government was out to get them if it could, so there was somehow always a bit more of something behind the prosecution.

[06:04] And just, if we could look in a little bit of detail about the context in which you’re living and practicing, at the Bar, when you’re doing the treason trial that you mentioned, August 1958, you’ve been in practice for about nine years, what stage were you at in your own life, because you’ve mentioned children, and a wife...

[06:32] Well, I got married on the 15th January 1952. My wife was then still a student at the university, a law student at the university, and we had our first child in October 1953. So by that time she had qualified as an advocate but had not practised.

[07:02] And where had you met?

[07:05] In Johannesburg. She had been at Cape Town University, but her family were in Johannesburg. And, so, the treason trial, I started working on it at the end of 1957, it came into court in August 1958. By that time I had two children, my second one was born on the 28th April 1955, their birthdays I still remember.

[07:46] And where were you living?

[07:50] In Johannesburg.

[07:51] Can you describe, we had a description in the first session of your parent’s house, could you describe your house at that time?

[07:56] Well, it was like my parents’ house and like most houses in Johannesburg, it was a single storey house. It had a nice big garden. It was on what was called the Houghton Ridge, and like most Johannesburg houses it had a veranda facing the street. I suppose it was a five roomed house, apart from the kitchen, and it was a very, very pleasant house. By Johannesburg standards, an old house, probably dating from about 1906 or thereabouts, so by Johannesburg standards that was an old house. It had been my wife’s parents’ house and she had lived in that house as a child. And we were still living there when our third child was born, which was in 1962,and then when number four was on the way, we realised the house was much too small and at the end of 1963 we moved into the house which is still in a sense the family house. Well all the children lived there, and we lived there and I can’t remember the date, but some time in the 1980s, when we were living here, but spending a lot of time still in South Africa, at that stage our eldest son took the house over from us and it became his house.

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[09:46] That’s still the position, it’s still his house, so when we go back to South Africa, that’s where we stay. And that house, also by Johannesburg standards, was fairly old, in that it was, I think, first built in about 1926, and that was a very large house, a double storey house, with probably about eight rooms in it, and that was really the house where the children grew up, went to school, went to university, and so that had a really very large garden, that’s where my son now, in the garden, he built a very big studio, which really left the garden in tact, just as big as it was. It was on the side of a hill, and the hill, the ground went right up the hill, but the path up the hill was just rough, it was just bushes and trees. And the boys went to school, at a school I’d been to, they just had to walk up that hill to go to school, and the girls went to the Johannesburg Roedean School, not directly connected with Roedean in Brighton but it was started by, I think it was, the Misses Lawrence started Roedean after the Boer War they started one in Johannesburg, really for the daughters of the British officials who came out, but it still continues, a good girls’ school, that’s where my girls went. Quite near our house also. And that’s where we lived, very comfortably. And it’s still a very comfortable house and there’s always room there for us when we go out there.

[11:52] And what level of help did you have in the house?

[11:56] Well, there were two, by the time we had four children, we had originally had a house maid and cook, and a man who worked in the garden and that developed into when we had more children, more to do in the house, one of the women really looked after the children, the other did cooking and cleaning and so on. And we always had a man who worked in the garden, so we had three full-time.

[12:31] And, your wife, who’d qualified as a …

[12:37] She’d qualified as an advocate, the equivalent to a barrister, but she was called to the Bar only after our second child was born because she had worked with, one of the few South African equivalents, what you call those officers here, advice centres?

[13:05] Citizens’ Advice Bureau?

[13:08] Yes, there was one of them like that in Johannesburg and she worked there. And then with children, as the second coming quite soon after the first, she didn’t work again until the middle of 1956 when Matthew, I suppose, was about eighteen months old, then she came to the Bar and she worked at the Bar. When our second family came, which was six or seven years after that, she stopped again for a while, and then her life really changed in, I suppose it was the mid-seventies. She and the two younger children, had come with us to Harvard when I was a visiting scholar there, and we were very interested in the law teaching at Harvard, particularly in what was called then clinical law, and we had somehow or other become friends with the man who had started clinical law, not at Harvard but at one of the other, at a university in New York, and clinical law was law for law students, but practical law. They would work with lawyers, they would go to court, they would give advice in what they called a law clinic. And students who’d had a couple of years of law were

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also allowed, under supervision, to appear in the lower courts for clients, and so it became practical and it was taught at the universities, and it was taught for credit at the universities. And in some universities it was becoming even a compulsory course and so when we got back to South Africa, Felicia started the first clinical programme in South Africa at the university in Johannesburg. And she ran it and it was practical in the sense that the students, for example, in the clinic there would be, people would come, at first it was employees of the university, then it became wider, they would be able to come on certain times to get legal advice and members of the law faculty and practising lawyers would come and spend an evening or an afternoon there and the students in due course would be able to give advice themselves. And she also did practical exercises for them, not just mooting, which of course there’d always been, but, say, giving them a couple of pages in which the facts of a case were set out, and one student would represent, let’s say it was a husband and wife case, the wife one the husband, and the exercise would be to interview and take a statement from your client, which of course students had never ever done before, and then the exercise would be to negotiate a settlement. All done under supervision, and they would go to court and again in, in you know, when we did moots, both at Oxford and at the university in Johannesburg, there would be some difficult question of law which hadn’t yet been decided by the highest court.

[17:24] And you know, students would argue that case. Well, what Felicia did was to get from someone who was at the Bar or from a solicitor, a record of a magistrate’s court case which had gone to the court of appeal. And, she would, that would be given to two of the students, and they would have to argue the actual case, which was the sort of case they were likely to get when they first came to the Bar. It would be years before they saw one of these difficult law cases, and so she started that, and then it spread to other South African universities, and she ran that clinic for some time, started a branch at one of the townships. And of course, the students all wanted to do that course and she couldn’t take them all because there, law was a post graduate degree and so you had people who had been at university for, say, five years, and they were in their second year of law, and they hadn’t seen much, some of them had never seen a summons, for example, or a pleading, and eventually it became a course, an optional course for credit, and later on, all students were required to do at least a half year of that course, so that’s what she introduced.

[19:15] And did you have any advisory capacity in this, or involvement?

[19:22] I would sometimes sit as a judge in one of the cases. I didn’t have any involvement with that. 00: 19:15 Then, the other thing she did which was in a sense a spin off, and also in part influenced by some of the American lawyers we’d met, she’d got, at that stage there was no real legal aid in South Africa. There had been something called a Legal Aid Bureau which was a charitable organisation rather like an advice office. And it always operated on a shoe string, and if it got any case to go to court it would get some very young member of the bar, or very young attorney to go and do it for nothing, and it never developed into anything. And Felicia got the idea of setting up a legal aid organisation of a completely different kind, which they never had in South Africa, they still don’t have in England as far as I know, and there

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were one or two, were some American organisations which were a bit like it, but the basis of it was two-fold

[21:00] First, it had to be organised in such a way that it would attract really top advocates to leave the bar and work full-time, which meant that they had to have a living salary. And the second part about it, was that instead of, like an advice office or the existing Legal Aid Bureau simply taking any case off the street, a small criminal case or a divorce case, it would concentrate on cases which were in some sense a “test” case and it would do it for people who couldn’t afford it which meant in the South African context, largely for blacks, because Felicia had realised that even under the apartheid laws, blacks had many common law rights and even statutory rights which they couldn’t enforce because they didn’t know about it. They didn’t know lawyers or couldn’t pay for lawyers, so this is what Felicia’s idea was. And to start it off she managed to persuade the Carnegie Corporation, the Ford Foundation, and The Rockefeller Foundation to provide the initial finance, and she got Harry Oppenheimer’s Foundation in South Africa to do it also and eventually she also got the, what’s the one, the chocolate people?

[23:04] Cadbury’s?

[23:05] What was the other?

[23:07] Rowntree?

[23:08] Rowntree, the Rowntree Foundation, and she got this funding. She collected a group of people to be the trustees, I was one of them, and she persuaded one of I suppose the half dozen leading silks at the Johannesburg Bar to come and be the full-time director, because the idea was that the people who worked there would be lawyers who would actually do the cases in court. And she left the Bar to work for them. This man who came, Arthur Chaskalson, was the director, but she was there as an advocate and also as an administrator and, well of course, the fund raising was continuous, and one of the other things you see they were able to do, was this. It was very, very difficult for young blacks who wanted to go to into law to get articles from decent firms of attorneys.

[24:28] But there were attorneys as well as advocates in this organisation and the attorneys were allowed to take up articled clerks, and then there were students who, just finished their degree who came in as, I think they called them, interns, and the other thing that Felicia did was to persuade the Bar Council and the Law Society that advocates and attorneys could work in the same firm. And then what they did was, they also got a very senior attorney to come and work, but what they started to do was to look for the test cases and once it was known that there was such an organisation, people came to them. [0:25:34]And they didn’t charge, no fees were charged. And it worked in so many interesting ways. I’ve told you that really virtually every white family had at least one black servant. Now under the common law, these were usually employed on a monthly basis with a place, living in, in a room in the backyard, plus meals. Under the common law, they were entitled to a month’s notice of dismissal. But white employers just disregarded it. They’d say at the end of the month, you are sacked, go now, many did. Most I hope didn’t. But 59

many did. Now one of those cases, somehow someone heard that this maid had been sacked in this way and some sympathetic person who’d heard of this organisation brought the maid along and so the legal resources centre took a case against the employer for a month’s wages and the value of food and lodging for a month. Very small amount. But the white employer was absolutely shocked and horrified that a black servant could sue her. Well, of course, they paid up. And then it became known and they took a few more cases, and then somehow the word got round that these people have got rights, so there was no legal problem, all their rights were there, and similarly with pensions. Blacks were entitled to old age pensions, very small ones, but thousands of them just didn’t know about it, and so the Legal Resources Centre simply started taking cases for these people, cases to which there was no answer, and the government department had to start paying out. And very soon whenever someone hadn’t got his pension the Legal Resources Centre simply had to telephone the office and they would pay up. It worked that way also with hire purchase of cars and furniture. There was quite a good hire purchase law which gave hire purchasers a lot of rights, entitled to notices, but the hire purchase people who dealt with blacks would firstly charge them usurious interest, they gave them contracts which virtually gave them no rights at all, and it was an absolute scandal and there were many, many hire purchase dealers who did this sort of them. Well the Legal Resources Centre again, when some blacks heard there was such a place, they came up with their cases and the Legal Resources Centre started bringing actions for these people against these hire purchase sharks, who were also absolutely shocked at the idea that any of these people could sue them, and at first they would fight it. But then they always lost and gradually they were put out of business by the Legal Resources Centre.

[29:30] But then in addition to that there were many much more important cases. I’d give you an example of one case, blacks in general had no right of abode in an urban area. They had to get a permit to live there, but as the law stood even under apartheid, if a black had lived in the urban area for ten years and worked for the same employer for ten years, then he could have permanent residence in the urban area. Well, of course, this provision was not really for the benefit of blacks, it was for the benefit of employers, because it made it so difficult for a black man to change his employer because he would lose his rights if he did it within the ten years. But the government had an even cleverer trick, they had a regulation which said that, in the last month of every year of service the black concerned had to leave the urban area, go back to some tribal area and apply there for the renewal of his permit to be in Johannesburg, which had to be renewed annually.

[31:18] And the way, the government interpreted that was that no black ever qualified for the ten continuous years. Well the Legal Resources Centre thought that was wrong, simply as a matter of law, and for one man, I remember his name, his name was Ricoto, had been in that position and he got to the Legal Resources Centre and they decided that was the test case to take. And, they argued that to go home on your month’s holiday outside Johannesburg didn’t break the continuity of your employment. And, they won. The government took it on appeal to the appellate division and the government lost again and the Legal Resources Centre won. Now the point about that, was that, Mr Ricoto won, but the rights which were established 60

applied to literally hundreds of thousands of blacks in South Africa, possibly something, might even have been, in the millions. So that was the sort of case they looked for.

[32:49] They had another case, Felicia was in both of these cases and the director, Arthur Chaskalson, argued them. There was another case, under one of these regulations, blacks who lived in urban areas had to have, if they lived in a township, they had to have a permit where they could live with their family. But there was a regulation which had been made which said that when one of their children turned eighteen, they no longer had the right to live in that house in the urban area, so they took that case to court. And they lost it in first instance but again the appeal court, the chief justice who was a very political pro-government chap, but who had a sense of justice, he was absolutely shocked to learn that when the son of the family turned eighteen he had to leave the family house. And they found that that regulation was ultra vires. And that did literally affect people perhaps, a million young people, or a million or more families and that’s the sort of case they took.

[34:09] And that organisation is still in existence today and Felicia became chairman of the trustees, which position she held even when we came over here, she would go back several times a year. And the other thing that was started here was an English charity, which was founded here to support the Legal Resources Centre, called the Legal Assistance Trust, still exists here and she was chairman of that. And, people wondered whether this organisation would still be necessary after the change over in South Africa, and of course it is and it’s still busier than ever, it started in Johannesburg but then it developed offices in Cape Town, Durban, Port Elizabeth and of course it’s still needed, still going on because people still have problems, and the governments don’t do what they have to do. There are still people who just didn’t get their pensions paid, they do a lot of work with land redistribution, acting for communities which have been exiled and wanted to get their land back, so that’s what she did which was much more important than anything I ever did in South Africa.

[35:44] And, when she’s got the funding together from Rowntree’s and Oppenheimer, is this 1960s or 1970s?

[35:53] No, no, that was late 1970s, 1978/79. And of course a lot of other South African companies then started to give some support and then they also, nothing like this had been seen in South Africa before, and they got a lot of support from Scandinavian governments, from Germany, Switzerland and they grew bigger and bigger, and as I said, the approach was, you look for the best lawyers and you pay them decent salaries, you don’t run it like an advice office, but people do work it for charity, you’ve got to have the continuity and you’ve got to have advocates who are as good as anyone who is going to be put against those.

[36:47] And did you ever feel, how was it for you, pressure to join them or were you resisting?

[36:56] No, I didn’t feel any pressure to join them, it wasn’t my thing, it was Felicia’s, but some times you know, if they didn’t have the resource in their own offices they

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had a case in court, then they would ask an outside advocate to act for them, well I sometimes did that. And there again, I mean, if I did, say, an application for them or an appeal, I wouldn’t charge and nor would other people, but sometimes if they had a long case where the lawyers had to go out of town, then obviously, if, say, a junior lawyer, particularly, they’d have to pay. One of the problems was that as they were acting for nothing, even though they won most of their civil cases and really all their cases were civil cases, they didn’t do the criminal work, they couldn’t get costs from the losing side. Because of the indemnity principle, the client hadn’t incurred any costs and it was really only after the changeover in South Africa that they got the Law Society to change its rules, and I think there was a statute also which provided that they could get costs, which made a big different to their financing of course.

[38:29] Huge.

[38:31] Yes, so that’s another aspect of South African law. And I know, an American who ran, probably the most successful organisation of that sort, the National Association for the Advancement of Coloured People, their legal fund, they were the people who ran cases like Brown and Board of Education – he said, that he thought the Legal Resources Centre of South Africa was the best public interest law firm in the world. And I think that might have be true. Of course, many of the young black lawyers and young white lawyers for that, who came to work there because they wanted to do something idealistic as well as being lawyers, the first director, Arthur Chaskalson was the first president of the new constitutional court of South Africa. And there are many people on the bench now who started law as interns in the Legal Resources Centre.

[39:47] And so, were you socialising with these lawyers then, you and your wife.

[39:53] Oh yes, certainly. There were social occasions, they would sometimes, say, have a monthly lunch for all the people working there, all the staff as well as all the secretarial staff and the messengers as well as the lawyers, they’d have a lunch there, and they would invite people who were supporters of the Centre. And then again every year there was a conference, and I was a trustee, so every year there was a conference somewhere and the trustees would come to the conference and, the other thing that they managed to do was that they managed to get sitting judges some of them to become trustees, which was a great protection, because the government naturally didn’t like the Legal Resources Centre very much.

[40:57] Could I just ask you about, when you were talking about the first case that you got in your own right of a political nature, the case of Solly Sacks and his passport, and you won that case on appeal, you were brought in at the stage when it went to appeal, and then you explained that as was the government’s wont they simply, there was no constitutional right or precedent to give them a right to take away the passport, but of course by statute the government just changed it and gave themselves those rights, so what was it like working as a lawyer within the law, when all the time one’s aware that the government might change the law for any victory which you’ve gained?

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[41:55] Well it was odd, you see, you had to look for a point to argue on the law as it stood. And you used to try and win it and sometimes you did as in that case, and it actually took about four years before the government actually changed the law. In those two tests, particular test cases I told you about that the Legal Resources Centre did, there was a fear that the government would regard those as loopholes and would close them up, but strange to say they didn’t. They didn’t close them up. So those rights existed.

[42:53] But time and again, when a court made a ruling against the government, there’d be a very rapid new statute which would alter things but nonetheless you just had to do the best you could, and sometimes it wasn’t all that easy for the government to work out a law that would close the loophole or might have left another loophole, the loophole was what they called it, we would have called it that, and there was an existing right which hadn’t been removed, they would call it a loophole. But you had to simply do your job and do the best you could, and as I think I’ve indicated, although particularly when there were more and more political appointments to the bench, it was very, very uphill, but in so many cases one felt one did have a chance of winning and you know, quite often one did win.

[44:08] And, what was it that gave you the feeling of a chance of winning, the configuration of the bench or the adherence of…

[44:17] Well, you know, even the people who were political appointments to the bench, they’d all come from the Bar and so they had something of the ethos of the independent Bar, and although they were very pro-government, they had that view. They still had some feeling for justice and law and many of the very political appointments still had a strong sense of justice and you felt if you could have a good argument even on the statutes or regulations, that you could win, I mentioned this judge who in this case about the eighteen year old, when he was chief justice, he upheld the Legal Resources Centre’s argument, in that treason trial I appeared in, he was the presiding judge.

[45:17] His name?

[45:18] Rumpff. And he was one of the most political of the judges.

[45:27] But that treason trial, I should have told you, was, there were no jury trials in South Africa, but under the statute for a trial for treason it could be tried by a special court of three high court judges, nominated by the minister for justice, and he was nominated together with two other judges, nominated by the minister. And throughout the case, this presiding judge was very, very hostile to the accused. He cross examined them when they gave evidence. At one stage we asked him to recuse himself which he refused to do. We said he’d shown such bias in his cross examination. But in the end the court unanimously acquitted them all.

[46:21] Were you surprised by that?

[46:24] Well, if you’d asked me at the beginning of the trial if it would happen, you know, I’d have said, well, very, very unlikely they are all going to be acquitted, but as 63

the trial developed, by the time we got to the stage of argument, yes, we thought there was a very good chance.

[46:43] And, that treason trial, to go back to it, occupied such a long time at a cruc...

[46:50] Well it did, my older children sort of, you know, grew up, it was a feature of their childhood. Many, many years later, in fact only a few years ago, my son, who at the time it started was about three years old and about six when it finished, he said he was brought up in his childhood, he knew that daddy was going to Pretoria called the “trees and trial”. [Laughter] He didn’t know what it was, and of course, there were breaks in it and intervals and gaps, but month after month, I would go to Pretoria every morning. One or other of the counsel would, usually at least two cars were needed, so there would be this daily drive, but when sometimes we got pretty exhausted by the daily drive, and sometimes we would spend one night in the middle of the week at a hotel in Pretoria, a hotel near the court.

[48:11] So it was a very intense time then. Eight counsel together for such a long time.

[48:17] Yes, it was.

[48:18] And during that trial, the Sharpeville massacre took place, and the state of emergency was declared. Did that have an effect on the running of that trial?

[48:34] Oh yes, you see, because that was at a stage when we were calling our witnesses, and our clients said that, under this emergency, and they were imprisoned under the emergency, if they were cross examined about their organisations and who was in it and that sort of thing as they were, but these people would be picked up and put into prison cells, they wanted the trial to stop. The court wouldn’t stop it. So they said, well, in that case, we are going to dismiss all our counsel, as long as there is the stage of emergency we don’t think we can be properly tried so we are going to dismiss all our counsel. We are going to represent ourselves. They thought that would induce the court to stop the trial. They said that the black people amongst them spoke various languages and they would want interpreters into Zulu and Sutu and they thought that seeing they didn’t have counsel, so they thought that would stop the trial, but the judges wouldn’t stop the trial. The judge presiding, Mr Justice Rumpff within days had organised a first simultaneous arrangement ever seen in South Africa and the state of emergency lasted about two months and for about two months the accused ran it themselves. There were two or three or four lawyers amongst them and while that was on I and one of the other junior counsel and the solicitor were running, were in the Sharpeville enquiry. And then when the state of emergency ended the accused asked us to come back to court.

[50:34] And can I just explore that a little bit, was it the accused’s idea to dismiss counsel?

[50:42] Oh yes

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[50:43] Or was that a defence strategy?

[50:45] No we were very, very worried about what might happen to them, with no counsel to defend them, and our worries were genuine because when we read the record of what had happened, you know, a lot of the cross examination, not only by the prosecutors but by the judges were really very unfair and we would certainly have objected and argued against that line of cross examination. We were terrified that there would be some, very damaging admissions made while we were away.

[51:24] So were you following the course of it through transcripts?

[51:30] Well, the transcripts were available. My own recollection is that we only really read through them carefully just when we were coming back to see what had happened.

[51:47] So it’s an extraordinary time where you were involved in this trial of ninety people for treason, and because of the state of emergency you’re dismissed by your clients to be instructed by the Dean of Johannesburg, who instructed you?

[52:09] The Bishop.

[52:10] The Bishop of Johannesburg instructing you in Sharpeville on behalf of the residents. So could you just explain how you took instructions, where you took instructions for that.

[52:23] Well, the way we were taking instructions was that, this enquiry was held in a little town just near Sharpeville, and after the day at the enquiry, we would meet some of the residents and the attorney would take statements from them. We would interview them about the evidence which they could give and what they could tell us about what happened. We interviewed people who had been wounded about what they were doing, people who’d been at the police station. The photographer and so on. In South Africa there was no rule about interviewing, about counsel consulting with witnesses. You were allowed to consult with witnesses, of course, once they were in the witness box, you couldn’t then speak to them, but up to that time you could consult with witnesses as well as clients. So that’s what we did, that’s how we got the instructions.

[53:41] And were they speaking English or were you using interpreters?

[53:45] Oh, some of them, usually the younger ones, spoke English, but older ones, we’d have an interpreter, yes.

[53:52] And you were saying that it was after the treason trial and the intensity of Sharpville, that you took the four month sabbatical in Harvard.

[54:08] No, no, I then took four month sabbatical in London.

[54:13] In London, I beg your pardon.

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[54:17] It was only in about 1972 or 3 I can’t remember which, that we went to Harvard.

[54:23] If we look at London, then, was that, how did that come about? Was it a reaction against the intensity of …

[54:30] Yes, I wanted a really big break. Actually, we thought that we would have our first two months in London, and I was very interested in company law then, so I was a sort of unofficial pupil in company law chambers in Lincoln’s Inn, during that time, the two children were left at home with a woman who looked after them and grandparents who looked after them while we were in London. I didn’t work all that hard as a pupil, but I went in and I learned quite a lot of company law. It was in the late Phillip Sykes’ chambers.

[55:16] The late Richard Sykes’ chambers. And I found Lincoln’s Inn and these company law chambers so extraordinary. I sat with a man called Maurice Smith and he was I suppose a senior junior, he was probably of over twenty years call, and all he did was company law, never anything else at all. I remember I devilled an opinion for him and it was about a directors’ liability and the last question in the instructions was about whether these directors had incurred any criminal liability for fraud. Well I devilled the opinion for him and he accepted quite a lot of it on directors’ liability and he changed quite a lot, but when it came to the last bit about criminal liability for fraud he simply crossed it out and he put in as the ending of his opinion “the criminal law aspects are beyond my purview”. Nothing! He used to do things apart from advising, I think the whole time, the two months I was with him, he went to court about once, and apart from advising he did things like drawing up articles of association for companies. That was all he did. But of course he knew all the cases in company law but that was his life. And that of course taught me a lot about specialisation at the Bar, it had very great advantages but it made I thought for a very dull life to spend your time doing that.

[57:21] Because that, you mentioned in the last session, that seems to be a feature of your practice, these highly political cases alongside retainers for De Beers and Anglo American …

[57:32] And of course I did all sorts of ordinary criminal cases also in my time. And every sort of civil case I did a lot of matrimonial cases at one stage, I did a lot of libel, I started doing some patent law there, company law was regarded as part of commercial law so I did a lot of company work, contested takeovers, directors’ liability.

[58:04] So when you say that you were interested at that time, in company law, was that to balance these political cases or where did the interest come from?

[58:20] Well, in the ordinary civil and commercial law cases I did company law, there came into it, and I just felt I didn’t know enough about company law, and I wanted to know more. And I did learn quite a lot of company law when I was here and then we actually took a two month holiday in Italy with the two children, came over, one of

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their grandmother’s brought them to Rome and we met them there and we had a long holiday in Italy.

[58:59] And, was there ever a question in your mind at that stage about leaving the South African Bar for the English Bar?

[59:11] No, no, not at all. That really only became an issue in the late 1970s. You know, my wife had always said that every twenty or twenty five years you should change your occupation. Well, I was called to the bar in 1949, and by 1977, then I’d been at the Bar, what, twenty eight years, well I knew I couldn’t really do anything other than be a barrister but I thought I would try it out in England as a change. And I did it very gingerly, I got called at Lincoln’s Inn, I managed to get into Brick Court Chambers and I kept my chambers in Johannesburg and did most of my work in Johannesburg but during the South African long vacation I’d come over here and I’d get the odd case and gradually I got more and more cases here, and spent more and more time here and found the travelling to and from South Africa and London too difficult. We’d bought a house in about 1981 I think, we bought a house in Bloomsbury and so as I said, I changed my occupation only in that sense but I kept my Johannesburg chambers until 1987 doing fewer and fewer cases, and in 1987 I think I did four cases and then I closed my chambers.

[1:01:17] And this date of 1977, it’s twenty eight years after you’ve been called to the Bar, is there any connection with having done the Steve Biko?

[1:01:27] No, I was called to the Bar at the beginning of July 1977 and the Biko inquest was in, I think it was November 1977, so I was already a member of these chambers. I don’t think I’d done a case, but I was what’s called a door tenant, you must know what that is, you know, my name was there and meant whenever I came to London they’d look after me here but I wasn’t a tenant, I didn’t have a room of my own, but from the following year I started to do the occasional case here and gradually more and more.

[1:02:23] And so was the decision, trying to understand the decision, it’s simply about change and not being worn out with the political system …

[1:02:36] Well no, I think there was a lot of being worn out appearing time after time before judges who were political appointments. Then I said it was always – you could win but it was always very uphill, I got tired of that, although, you know, I went on doing it, as I’ve said, right until 1987, right up to the end, I did some of my cases were political.

[1:03:03] But I think I had got tired of fighting those cases and also I did have the feeling, really, I’d been at the Johannesburg Bar all that time, there was no possibility at all of my being appointed to the bench by the government in South Africa and in fact I wouldn’t have wanted to be a judge there because I wouldn’t have wanted to administer the laws which were on the statute book. So that was really why and it was an experiment, but it was made easy for me here, I think I mentioned to you, so far, I think it’s not on the record yet, that I came to Lincoln’s Inn because I knew two

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people at the English Bar, one was Michael Carr who was a judge. I’d known him when he was a barrister before he became a judge. And one was George Newsome QC, a chancery silk, whom my wife had met once on holiday in Austria, a winter holiday, and they were Lincoln’s Inn benchers, and so when I thought of coming here I naturally got in touch with them. They told me how to apply, naturally, to Lincoln’s Inn and I applied to Lincoln’s Inn and I had some recommendations from them and from people, judges in South Africa. And Lincoln’s Inn exempted me from all examination and furthermore they exempted me from all pupillage, but in case you think I’ve no qualifications for the English Bar, I was not exempted from eating dinners, (laughter)so that’s my qualification for the English Bar.

[1:05:12] But even there, they did something which was not unprecedented, but which was very unusual, they let me do what’s called double dining. I was in London for the week before I was called and I had to have seven dinners including Sunday lunch, so I had seven meals, and it was very pleasant because my first dinner was on the Saturday night, and that night there were only two benchers dining I was told, and someone had told them about me, my status was as a student at Lincoln’s Inn, waiting to be called, but they nonetheless invited me to dine with them at the benchers’ table, which was very nice indeed. There was another mature student dining that night. He was a colonial judge from Zambia who wanted to be called to the Bar in England. He was an Englishman and they also invited him to dine. The second day was a Sunday when if you come to lunch after chapel on a Sunday, everyone dines together at the benchers’ table. On the Monday my sponsor, a very nice chancery barrister, chancery junior, called Jim Sunnucks, he invited me to dine with him at the barristers’ table and that was also very, very good. The final four nights I dined at the students’ table and I realised that there was no damn nonsense about equality at the English Bar. So that was my qualification for the English Bar and I was called at the end of that week by Lord Widgery who was then Chief Justice.

[1:07:20] In 1981?

[1:07:22] ‘77.

[1:07:24] And what do you mean by there was no damn nonsense about equality at the English Bar?

[1:07:28] I was thinking of the difference between the dinners at the high table, benchers’ table, barristers’ table and the students’ table.

[1:07:38] So, were you pleased not to dine at the table throughout then?

[1:07:46] Well I mean I would have done it, I was a bit out of place at the students’ table, by that time, in 77, I was nearly 55, so it was a bit odd to be there, they were pleasant enough, of course, but I couldn’t really talk about how the exams had gone and things like that.

[Laughter]

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[1:08:12] And, so, at this stage you’ve become senior counsel, in South Africa, which is the equivalent to Queen’s Counsel.

[1:08:21] I became senior counsel in South Africa. In November 1965. By that time I’d been at the Bar sixteen years, which in South African terms was fairly soon.

[1:08:37] And could you just explain about that process?

[1:08:41] It was similar but different process. Queen’s Counsel were appointed nominally by the governor general or the later when we became a republic by the state president.

[1:08:55] But it was on the recommendation of the minister of justice position, not the lord chancellor, the minister of justice, but in order to apply you first had to apply to the chairman of your Bar Council. Each centre of the … Johannesburg, Cape Town, Pretoria, Durban, Bloemfontaine, each had a Bar Council, and you had to apply to the chairman of your Bar Council and if he was prepared to recommend you, you would take his recommendation to the judge president of the division where you practised. In my case I was in the Transvaal, a Natal division, Cape division and so on. And then if the judge president was prepared to recommend you, then the recommendation went to the minister of justice but it was almost unknown, not quite unknown, but almost unknown for the minister of justice to turn down anyone who’d been recommended by the judge president. And it would be very, very unusual for a judge president to turn down anyone nominated by the chairman of the Bar. So it wasn’t competitive as it is here. There was no limit on numbers. What made it competitive was the compulsory junior rule which existed in South Africa long after it had been abolished here and the two-thirds rule continued in South Africa, long after it had been abolished in England.

[1:10:41] Could you just explain what those rules were?

[1:10:43] You know, don’t you? Well, the compulsory junior rule was that a silk could not appear in court on his own, he had to have a junior with him, which meant it was more expensive to brief a silk. Secondly the junior had to be paid two-thirds of the silk’s fee. It meant that if you became a silk you were only likely to be briefed in a case which was important enough and where there was enough money involved to warrant that expense. That meant that there was a risk in taking silk, because you might have had a good practice as a junior but as a silk you might have priced yourself out of your particular market. But apart from that it was not directly competitive as it is in England. So I became an SC, a senior counsel then. By the way, people who had become Queen’s Counsel before South Africa became a republic were entitled to keep the title Queen’s Counsel. And I think the last one of them is still in practice in Durban.

[1:11:58] And do you think there’s any possibility that the minister of justice would have had pause for thought when your name, who had been so active in the political cases, came before him?

[1:12:13] I don’t know. But anyway, he didn’t pause for thought. 69

[1:12:16] I only know one case myself where someone was turned down for political reasons, it was rare for people to be turned down, this person was an outstanding man, he hadn’t been at the Bar all that long but he’d been an attorney with an enormous criminal practice in the courts. But he had been much more political than I had, he didn’t simply appear in political cases. I think at one time he’d been in the communist party and so that’s how it went. But, so, by the time I came to London I’d been a silk in South Africa for nearly twelve years but I came to the English Bar of course as a junior.

[1:13:12] But just thinking about the experience you had in seeing Bram Fisher, who’d been openly political.

[1:13:22] Yes, he got silk.

[1:13:24] He got silk?

[1:13:26] Yes.

[1:13:29] Had you ever queried your involvement in the liberal party as to whether that would jeopardise your ability as an advocate or …

[1:13:36] I never even thought in those terms.

[1:13:38] Yes, but anyway, that’s why I started in England as a junior, but very soon my clerk, who was an outstanding, one of the great clerks of chambers, his name was Ron Burley, many members of the Bar who weren’t in these chambers know about him. He started selling me as a leader and he had, I think, had to overcome a lot of scepticism on the part of solicitors and I soon learned because I sometimes overheard him, I soon learned that the misrepresentation act had not applied to barristers’ clerks. And in fact really quite soon, I started getting briefs as a leader, and I started doing trial work and longer cases and bigger cases, and then in the one case I was in, it was quite a long, pre-insurance case, it ran before Mr Justice Parker for about six weeks before it was settled. Anyway, I was in the embarrassing position that in the middle of this case my junior took silk, so he had to move to the front in bench of me while I ran the case and that was Jonathan Mance, now Lord Mance. So that’s when I first knew him. And it was about that time that I think someone suggested that I should apply for silk here and I had not even thought of it because I understood that ten years was the minimum that people could be called before they would think of applying for silk, but anyway, it turned out there was no actual time limit. So I did apply, and I got a couple of, there were a couple of judges whom I’d appeared before, who supported my application and I got a couple of ex- law lords who knew me for various reasons to support me also. And knew of my work in South Africa. And that was in 1983. I think I’d only been at the Bar, mid-77, so it was in my sixth year at the Bar, so I had to apply … Anyway, Hailsham was chancellor and his permanent secretary, was a very, very nice man, what was his name, that will come back to me, a very, very nice man, he asked me to come down and see him. And he said to me that there was a difficulty.

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[1:17:35] He said that under the act of settlement of 1707, only British born subjects could take an office of profit under the Crown, and I was a South African citizen and Lord Hailsham thought that that disqualified me. It was his view that this was an office under the Crown. So I didn’t get silk. And then I thought that was that but then I was encouraged to apply again and I did a bit of research but I don’t know if you want to hear about it?

[1:18:34] Certainly.

[1:18:39] I don’t know if in your time at the Bar you ever knew of a text book called Benjamin on Sale?

[1:18:42] I have heard of it.

[1:18:44] Well, that was a text book dating from Victorian times from the 1860s or 70s and it was written by Juda Phillip Benjamin QC. Now Juda Phillip Benjamin was, had been an American lawyer from Louisiana from New Orleans in the southern states and he had become a leading in lawyer, he had become a United States senator. When the war broke out he was on the confederates side and he had become foreign minister and then minister of war for the southern states. And when the South lost the North were looking for him to try him and he escaped to England.

[1:19:48]And he came to the Bar in England. He joined the Bar, he got qualified and he built up the most enormous practice. He was one of the great advocates, appeal advocates, if you look through some of the House of Lords and Privy Council law reports, for during the mid to late ‘70s you will see that he appeared in more than half the cases. Anyway, how did he become a QC? This American? And the answer was, that he had been born in a small Caribbean island at a time when it was a British colony. At the end of the Napoleonic wars by which time he was about two years old, there had been some treaty under which it was given to Denmark. But he had been British born in a British island and therefore he was able to become a QC. Now when I was born, South Africa was a British colony. So I wrote a memorandum to the Lord Chancellor explaining and suggesting on the basis of Benjamin that I had been British born. The act spoke about British born, that’s all it required. Of course, under modern legislation the Nationalities Act provide that if you’re naturalised you’ve got all the privileges of a British born person, but I wasn’t naturalised, but I put in my application, again on the basis that I was British born, and that time round I got it. I was seven years call then. And I suppose I’d been actively practising for about five of those seven years, but I got silk from Lord Hailsham and I was very happy about that. Many years afterwards I learned indirectly how I had got it. Hailsham never thought I should get silk. But I learned this years afterwards. At that time the attorney general was Michael Havers and I learned this from one of his successors, after he had died. Nicholas Lyell who was a member of these chambers, was attorney general, and he told me that there was a convention that every year the attorney general can virtually nominate one of the applicants for silk to take silk, and Michael Havers had nominated me. Michael Havers had never told me, he’d never said a word about it, I’d never even met him. But I don’t know who had

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spoken to him, but I was made a silk on his nomination. And Hailsham, Hailsham would never have given it to me in my opinion.

[1:23:47] And did you ever appear in front of Hailsham?

[1:23:52] No, I never appeared but I did something even worse. In about 1986 when I was a silk the Bar had a case against Hailsham, a judicial review of his decision on legal aid fees. They said he’d breached the Bar’s legitimate expectation. And the Bar briefed me to act against Hailsham. It was before the Lord Chief Justice Lord Lane in the full court of two other judges and we thrashed the Lord Chancellor hands down. In fact he had to throw in his hand before the end of the argument. And I first met Lord Hailsham when I became a bencher of Lincoln’s Inn, he was also a bencher, and I became a bencher later that very year, later in 1986, I was elected a bencher of Lincoln’s Inn. And I met him then, and he was always very cold towards me.

[1:25:06] A rarity, I would imagine.

[1:25:10] Well, I mean, a rarity for Lincoln’s Inn, for a bencher of benchers of Lincoln’s Inn, they were in general a very, very friendly lot. In fact, the whole Bar, I’ve always found very friendly, they didn’t look on me as someone who was an interloper. They could have, perhaps should have, but I never felt that from anyone at the Bar.

[1:25:33]

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INTERVIEW 4 – 1ST APRIL 2008

TRACK 6 – [2:25:24]

[00:04] Today is April Fool’s Day 2008, so that in the course of the interview I will say something which is outrageously untrue in order to see whether you spot it!

[00:17] I hope not! It’s the fourth session recording with Sir Sydney Kentridge in his chambers. During the last session Sir Sydney, you’d come to England and you’d briefly dealt with being made a QC and your application for QC. After this session had ended we were talking off-tape about the changes in practice and your hours of working. Could you just, for the purposes of the recording, explain the changes you found when you came to practice in the way of working and your hours?

[01:05] The big difference between practice at the Johannesburg Bar and practice in London is that in Johannesburg we didn’t have barristers’ clerks and here in London the clerk, the senior clerk, was at the heart of the system. What that meant in South Africa were two things, firstly it meant that we had to fix our own diaries and secondly, of course, we had to fix our own fees. And it was an extraordinary luxury to have a clerk and a good clerk who would do those things. And particularly, one of the things in a barrister’s life, as you probably know, which produces a lot of strain, is when you have a case that is running on much longer than you thought it would and you have another case looming on the horizon and you’ve got to decide when it is that you have got to tell the solicitor in the second case that you may not be available. Well that’s never a pleasant or easy thing to do and I found here the clerk would do it and he would do it also on the basis that if necessary he would find another barrister for the second solicitor. And I found that having a clerk relieved a lot of the strain which used to be part of my practice in Johannesburg. And then, of course, there’s no doubt that the clerks do, to an extent, drum up work for people in their chambers.

[02:57] But my clerk, Mr Burley, was remarkable. I don’t say he was unique, I couldn’t say that, but he was remarkable in this way. I always thought of him in a way as a trainer who had a stable of race horses and he was always very careful about whom he would recommend to a solicitor. As I put it, he wouldn’t put a two year old in a three year old race. And, of course, one could see, apart from the integrity of it, one could see the value of it. It meant that his recommendations were respected. And what I know happened sometimes, a solicitor wanted counsel from these chambers for a particular case and Mr Burley, looking at who was available, although there were people in chambers who were available, didn’t think there was right persons for the case, and he would tell the solicitor this and say that he would find him someone from another set of chambers, if necessary. Or would recommend someone. And, of course, the value of that was enormous in that he was so trusted by everyone. Anyway, I found that one of the biggest differences. Then of course, there were other differences. I’ve never been an early morning worker. But in Johannesburg I used to try and get home reasonably early to leave chambers by 5 or shortly after 5 and do my work after dinner, take work home to do after dinner. I didn’t do that here, partly perhaps when I came over here we didn’t have children with us, and I found it suited me well that I would not take work home, I’d rather work here in chambers till 8 o clock and then go home, have dinner with my wife or go out somewhere. And it was a different way of working.

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[05:19] And of course, there was a different, certainly at first, in the type of case I took. As I told you, in Johannesburg I did a lot of commercial work, but these chambers, Brick Court Chambers, were then and still are primarily commercial chambers. And so, the work which I mostly did when I came was commercial work, including insurance work and I did some very large insurance cases. I had done them in Johannesburg, but here it became the crux of my work. And it was only after a few years that I found that I was also being asked to do public law work, the occasional judicial review. And of course, I had also in Johannesburg done patent and copyright work and I found here that I got some of that work also. I think mainly from solicitors who knew me because it wasn’t really part of the work of these chambers. I had what might have been a disadvantage, it might have been advantage, namely that at the South African Bar unlike the English Bar, we didn’t specialise, you didn’t have a criminal bar, a civil bar, a commercial bar, a chancery bar, a public law bar. We did everything and in my time in Johannesburg I did every sort of case. Criminal cases of every sort, from murder to company fraud. I did family law, divorce and custody cases. I did patent and copyright law, and what here would be called public law, in other words, reviews of what the government did. And also, of course, my criminal practice there included what you might call political criminal cases. So in a way, here, I felt it was something of an advantage to have done every sort of case. I haven’t done many criminal cases in England, but I did do two very large criminal trials which people in these chambers on the whole didn’t do. And I also did a few criminal appeals. And as I say, when I was, for many years, in these chambers, I did some patent work and copyright work. Again, not the bread and butter of these chambers. But of course, as I came to do more public law here, so did chambers. These chambers also became leading chambers in European Law. That’s not a branch of the law I’ve ever gone in for. I don’t know any European Law. But also these chambers have also become well known for public law work, judicial review, and that sort of thing.

[08:56] And I found I did get some interesting and even important cases of that sort. Of my two criminal cases, the one I had in the Old Bailey which ran for many, many weeks before the prosecution withdrew, was for P&O, the case of manslaughter following the sinking of the Herald of Free Enterprise. I acted for the ship owners. And then the other case I did which was a case for a Doctor Cox who was charged with attempted murder. He was a specialist rheumatologist and he had a dying patient who was in the most terrible pain and by some quirk of nature, this does happen, her pain could not be relieved my morphia or heroin. And the fact is that he gave her an injection which killed her and he was charged with attempted murder and it was attempted murder because this woman was so close to death anyway that the Crown didn’t undertake to prove that her death was actually hastened but I ran that case at the Winchester Assizes and Doctor Cox was convicted but he didn’t go to prison and he wasn’t struck off the medical register, because in fact, he’d been a wonderful doctor to this woman and her family were very upset that he was prosecuted. But those were my two criminal cases, both of which I remember well, of course they were unusual cases. When it came to public law, constitutional law cases, or cases with an international aspect, I’ve had a few of those which I thought were certainly very interesting and possibly even important.

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[11:36] One which I had was called M against the Home Secretary. That was a case of an asylum seeker from the Congo, just known as M, and he was going to be deported and counsel for M, not me, went to a single judge and got an injunction to stop his deportation pending a further hearing. And, the government was confidently advised that this injunction would be discharged, this temporary injunction at a further hearing and so they could safely put him on an aeroplane back to the Congo. In other words, they disobeyed the order of the court. Well, that went up through first instance and the court of appeal where counsel for M brought proceedings to commit the home secretary for contempt of court. And they won 2-1 in the court of appeal and the government appealed, the home secretary appealed, and the case had been run for M by Stephen Sedley but he went on the bench at that time and I was asked to do it in the House of Lords. And the big issue in the case was whether you could get an injunction against a minister for the Crown and whether a minister of the Crown was subject when acting in his ministerial capacity, to proceedings for contempt of court. And the late Sir William Wade said it was the most important constitutional case for 300 years. Anyway, we were in the House of Lords and we won 5-0 there. And it established that a minister of the Crown had no privilege which exempted him from obeying orders of court and if he disobeyed it was contempt of court. And, that was the judgment and as Lord Templeman said, that if the Crown’s arguments were correct, it would have reversed the effect of the English revolution of 1648. So that was a satisfying sort of case to have. Then, just shortly there afterwards, I recall, I had another case, because, it was a case which I felt would tell one a lot about the English judicial system and the value of an independent Bar in England. It was about three weeks after that case that I was in court for the then secretary of state for foreign affairs, Douglas Hurd, for the government, arising out the Maastricht Treaty, there was a litigant who was arguing that it was beyond the powers of the government or the Queen to have entered into the Maastricht Treaty for various reasons.

[15:46] And, that went before a divisional court of three judges and I was then acting for the government in that case and there the court held that the government did have the Queen’s prerogative power did entitle her to enter into the Maastricht Treaty and her decision to do so wasn’t reviewable by the court. And I just found the juxtaposition of two cases really quite a significant illustration of how the Bar in England works and incidentally the litigant on the other side was William Rees Mogg, the former editor of The Times. And he was someone, that was the other thing about, he was someone I knew well, we were friendly, and I’d come across him in rather unusual circumstances and that was in South Africa. I was acting for the editor and the senior journalist on the Rand Daily Mail who had been charged, I think I’d mentioned it to you under the Prisons’ Act, and the question was whether the editor had taken reasonable steps to verify his story. So one of the questions in that case in South Africa was what were reasonable steps. Well such was the atmosphere in South Africa that editors of other newspapers were very reluctant to come forward and to give evidence in that case, but I can’t remember how it came about, but somehow it came about that William Rees Mogg who was then editor of The Times came out and he was one of my witnesses. He gave evidence on what steps you could expect an editor to take to verify the correct controversial story. So that’s where I first met him.

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[17:59] And I kept in touch with him after that. Then, other interesting cases, there was something called the International Tin Council which controlled purchases and sales of tin throughout the world. To keep the market steady. Well they kept it so steady that they went insolvent, because they would deal on the metal exchange. They went insolvent and people who had dealt with them simply lost their money and a number of metal traders, some of whom I represented, brought an action for damages against the International Tin Council, simply for breach of contract. And the issue in that case was whether the International Tin Council which represented, which in effect was consisted of the representatives of, I think at least 30 governments throughout the world, including the British government, the question was whether they had immunity from suit. In other words whether they had the same sort of immunity that a foreign sovereign would have. And, that case went right up to the House of Lords. We lost all along the line. But it was a case of some importance and I must say, to me, it always seemed extraordinary that people, that this counsel representing sovereign states, England, United States, Australia, all tin producing countries and tin dealing countries, could have just gone insolvent and walked away from its obligations. Anyway, that’s just an indication of the sort of cases which I came to have in these chambers, and then I’ve done other constitutional cases. I acted for the Countryside Alliance in trying to have the Hunting Act declared invalid, on the basis that the Parliament Act was wrongly invoked to put it through and I told you about a record which I thought I had in South Africa of acting for three winners of the Nobel Peace Prize. Well, I achieved another record in the Hunting Act case.

[21:09] it went through three courts. I had two judges, in the divisional court, then three judges in the court of appeal and then nine judges sat in the House of Lords because it was such an important constitutional case. So that was fourteen judges and I lost by 14-0 so that must also be a record for counsel to have lost before fourteen judges.

[21:42] And, you were talking earlier about the case with the Maastricht Treaty following hot on the heels you were instructed by the foreign secretary, so who instructed you on these cases and have you always made yourself available, who instructs you?

[22:09] Well that’s the cab rank rule, yes, indeed. If you’ve got no good reason not to take a case, let’s say, if you were available and if someone is prepared to pay you a reasonable fee, you must take the case unless you have a conflict of interest and in this country, the fact that you may appear against a party, does not preclude you from acting for him in another case and visa versa. And that of course was the case in South Africa too, but in South Africa I think there were people who were reluctant to act against the government, that’s not something you find here. No one really cares one way or the other nor does the government care. The government briefs people who act against it, people who act for it, but the – in that Maastricht case the treasury solicitor briefed me.

[23:27] And there it was. Not that I’ve done very much government work. Done a bit of work for the treasury solicitor but not a great deal. I have acted for the government in some criminal appeals, really ones which involve questions of law. But on the whole I’ve had a very varied sort of practice here. The other thing which I’ve done some of here, not much, but again, which in England is regarded as specialist

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territory, is libel. I’ve done a few libel cases and for the most part libel is regarded here as specialist territory. But so it goes. Then the case that I’m in at the moment which is also a very interesting constitutional case, in a case for the inhabitants or rather the former inhabitants of the Chagos Archipelago who were excluded, expelled from their islands when they became an American base, the main island being Diego Garcia. And these expulsions took place in the 1970s but nonetheless the people who had lived on the islands and, maybe for two or three generations, had been just sent to Mauritius but they retained their desire to be regarded as British subjects and people who belonged to those islands and in 2000 they brought a judicial review here in London of an ordinance promulgated in those islands which, an ordinance which provided that nobody, not even citizens, had any right of abode in those islands. And the Divisional Court upheld that, they held that that was invalid, and four year’s later there was an Order in Council, the Queen in Counsel, for the island which in effect reversed that judgment and said that there was no, they had no right of abode, and we took that on review also and succeeded in the divisional court and the government appealed to the Court of Appeal and they lost there too and there of course, the big issue was whether the Queen in the exercise of her colonial prerogatives was subject to judicial review.

[26:57] And that’s still ongoing because the Crown appealed and got leave to appeal and that appeal will be heard in the House of Lords at the beginning of July. So these things just go on and on.

[27:14] Have you been involved in it since 2000?

[27:18] Yes, I did all the cases in that one.

[27:22] Makes your treason trial of 1958 brief by comparison.

[27:27] Well, except, that this was a series of short hearings. It’s gone in the sense that the dispute has continued. But these cases that would last in court for three or four days. So it doesn’t meant that I’m always working on it.

[27:58] So there’s a great variety of cases here. Constitutional, criminal, commercial, which, are there ones that you particularly enjoy doing or have your interest? You’ve explained the cab rank where you are obliged to take things, but where does your personal interest, what are the things about cases which interest you?

[28:31] Well, there are various things, sometimes you can have a purely commercial case, say an insurance or reinsurance case [0:28:42] where there is a really interesting question of law or of interpretation of a policy, the rights of insurers, duties of insurers, and they may be very technical points but it’s intellectually very satisfying to go into them and argue them and I’ve enjoyed cases, purely commercial cases of that sort. There’s some really interesting and sometimes even important question of law, by important I mean that it’s going to affect a lot of other cases also, and I enjoy that sort of intellectual challenge, what I’d call pure law. I think as the years have gone by I’ve been less and less interested in cases which involve disputes of fact. And indeed for many years I haven’t taken trials. The reason I haven’t taken trials is that they tend to run on too long and I’ve no longer got the stamina to have a very long case in court with examination and cross examination, day after day. The

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other sort of case that interests me is the sort of case which does involve a really interesting and even important constitutional issue.[0:30:29]Like the hunting case, or the case of the Chagos Islanders, or M and the Home Office. I think I suppose, the ideal sort of case to have is the case which has got interesting questions of law with something of more than individual personal interest as the background, like the Chagos Islanders or M and the Home Office. There are important questions of law but one is also taken up with the plight of the particular people who are concerned. And I suppose that’s the most interesting sort of case because you feel in a case of that sort that you may possibly be doing something worthwhile. I’ll give you an example of a case, the other way. Which I used to enjoy for a different reason.

[31:58] i did a number of them in South Africa, but I think only a couple of them in England, and that is contested company takeovers. And I always found those enjoyable because they were completely devoid of any social interest. It was not going to make any difference to anyone other than the executives of the company who won or lost. It was all a matter of vanity of the executives and directors on both sides. Shareholders, as far as they were concerned, in spite of all the material that was put out saying that it would or would not be for the benefit of shareholders, the shareholders interests really counted for very little. These were vanity fights between different opposing boards of directors. And those were rather entertaining because you knew that it didn’t, sometimes there was a point of law in it, usually there was, not uninteresting, but you knew that this was just a game. No one was going to be hurt in the end.

[33:20] Straightforward scrap!

[33:24] There was just a scrap but it wasn’t the sort of fight, no one was going to go to prison, no one was going to be bankrupt. Some executives might then get, say, a bigger bonus than other executives but it had completely bereft of any redeeming social value and that was the cheerful sort of case to have.

[33:51] Providing light relief!

[33:55] Yes, yes.

[33:56] Which was, you had said that was part of the purpose of coming to England, was out of the intensity of all those political cases and …

[34:06] Yes, I think that’s so, but even in South Africa it was also a relief to have cases like that.

[34:16] And, then, some exploration of your personal methods of preparing cases. You talked earlier about when it was time to revise for your finals at Oxford you got your own system together, which was to read something to keep you fresh. What would be your system of preparing cases. There are sometimes rooms full of documents …

[34:50] Well, one of the awful things about the practice of the law now is the huge bundles of documents that you get in cases, because it’s so easy to copy documents. And I try, as far as possible, avoid cases which involve huge masses of documents. I

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was never very good at preparing that sort of case and I tended to be very reliant on juniors to pick out the important documents for me to read.

[35:34] And, of course, those you had to read, even in the most interesting of cases you can’t avoid a certain amount of drudgery and sometimes there were a lot of boring documents to be read. There is no shortcut. You can, as I say, you can get help in someone eliminating the rubbish, but eventually you’ve got to read the relevant documents and to know them. And you’ve got to know the relevant cases. I’ve always liked doing legal research. But I’ve got no particular method, I don’t know if anyone has a particular method.

[36:10] You’ve just got to learn about the facts including the documents and the law as best you can. And similarly, sometimes I’m asked to talk about advocacy. I’m completely unable to talk about advocacy and how you do it and what method, what are good methods or bad methods. You sometimes see books on advocacy or lectures on advocacy where the lecturer says that what you have got to do is concentrate on the relevant issues and put them clearly and succinctly as though if you weren’t told that, a young advocate would think that it was all right to deal with irrelevant matters and not to put them clearly, put them vaguely, and not to be succinct but to ramble. I do think that there are aspects of advocacy which can be taught, like methods of cross examination. Some basics. You can’t teach a person to cross examine. But you can teach a person to avoid certain pitfalls. There are hints of that sort. When it comes to addressing a court, you can tell people, for example, that the thing to try and do, if you’ve got an appeal, is to interest the court in it. But then the question is, how you interest them in it? Well, there’s no specific way you can do it. One would say you shouldn’t bore the court by reading long passages from the record, at least to start off with. But I don’t know of any rules for it.

[38:33] Do you think you were influenced, were there influences on your advocacy from your early days at the Johannesburg Bar?

[38:40] Well I certainly saw great advocates doing it well. Addressing a court cross examining, I saw them doing it well. But I don’t know if you can pick it up. There are a few tricks, perhaps, which could be picked up, but I think people have their own way of doing it. If you go to court in any, a case, say where it’s a post application or an appeal, and there are two good counsel, each one of them will do it differently. You can’t say one is better than the other, you do it your own way.

[39:32] So there’s no one particular person that you modelled your style on, it was always Sydney Kentridge’s style?

[39:41] No, some of the advocates I most admired, one of the things I could tell was that I could not imitate their style. It was not my style.

[39:54] Could you explain a little more?

[39:57] Well, some of those who were really great advocates were flamboyant, I don’t think I’m flamboyant as an advocate. I didn’t try to be, didn’t try to follow them in that way. On the other hand, you know, I wouldn’t say to anyone, you must deliberately start out and be low key, because if you are too low key you’ll be boring.

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So, I don’t think that there’s any way of teaching. There is, as you know, a lot of advocate training going on now, did you ever have advocate training?

[40:40] I think I was the first year that they introduced it.

[40:47] Well I’ve seen some of it and it can be done, it’s very useful. You get someone to put up an argument and you can criticise it in a helpful way, or there’s a mock cross examination you can say this wasn’t a sensible question to ask, and you can give hints of that sort. But the real education comes in getting the student to do it. But you can’t teach style. You can’t say, you must use a different style. So I can’t say that I picked up anything specifically from anyone. And of course all the stories you hear of the great advocates and what they said to the judge and how they scored off the judge or scored off someone on the other side, they are all good stories, but they don’t teach you. They don’t teach you what to do.

[42:00] I’ve been thinking of, you’d mentioned it, Maizels, so had he a style which was very different?

[42:12] Oh he was a very flamboyant advocate, but it came naturally to him, he was that sort of personality. It’s not as though he’d ever sat down and said, well, I think I’m going to be a flamboyant advocate, (laughter) it was just his personality. And it worked for him. If other people had tried to imitate it, it wouldn’t have necessarily have come off, it would probably have been dreadful.

[42:39] And the different courts that you’ve appeared in front of, do you ever adopt or change your style depending on which court you are appearing?

[43:00] No I wouldn’t say there’s such a thing as changing style. But I can think of some judges, very, very quick on the uptake, and there one goes fast, one only has to say something once and you could also, lets say if it was a judge with a particular background or experience, you could assume that he knew something, a certain principle, you go fast. Another judge, you can see goes more slowly. He likes things to be underlined. He likes to test your propositions as you go along and you’ve got to give him time for that. But that’s just something which, a matter of knowing the judge and knowing what’s, and very often he’ll just let you know if you’re going too fast, he will tell you to go slower. But there are all sorts of stories of barristers getting that sort of thing wrong. There’s the story of the barrister in the House of Lords who was going through a line of cases with their lordships and one of their lordships said “Mr so and so, can’t you take it that we’re well acquainted with all these authorities?” and he said, “That was my mistake in the court of appeal”. (Laughter). So you know, sometimes you get it right, sometimes you get it wrong. I think one of the things that comes with time, what should come with time, I suppose is that you have to try and distinguish between the good points and the bad points and not simply put up every point. There’s a story which may be apocryphal of someone putting his head in to the Court of Appeal where counsel was arguing and heard counsel saying, “And my Lords, nineteenthly, [Laughter] …”

[45:46] And the, are there different atmospheres, depending on which court you are in? One of these things that I’ve heard and I wanted to hear your opinion on. That

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the higher up the courts you go the more politely arguments are received, or is that a myth?

[46:07] Well, it’s certainly not a myth. Today, I think it’s correct. I think the Law Lords are the most courteous of tribunals, but it wasn’t always like that. My experience in the House of Lords and the Privy Council, it doesn’t go back all that many years naturally, but some of the people in the House of Lords were terrors. I mean Sydney Templeman was, could be absolutely vicious to counsel, so to at times could Lord Bridge and Lord Brandon, Lord Diblock was very off hand with counsel. But certainly, what I would say that the present House of Lords and I think it’s been like that certainly for at least ten years or more. You don’t find any, they are not rude, they are not impatient, they are very courteous, but my experiences of all levels is that rudeness from judges to counsel is very, very rare. There are, I can remember, there are some judges who have been more impatient than others. In South Africa the judges, there were some dreadful judges, some who were really dreadful to counsel. Even if you were on the other side you’d cringe at the way they treated your opponent. But it doesn’t, I’ve not come across it here.

[48:25] Did you suffer ever at the hands of Lords Bridge or Templeman or Diplock?

[48:33] Well, never at the hands of Lord Bridge for some reason or other my arguments seemed to appeal to Lord Bridge. And to Lord Brandon, who both could be terribly hard on counsel. Templeman, I usually got on quite well with but I also got some very snide remarks from him when I was arguing before him. There’s nothing personal in it, nothing personal at all, but other judges, I can’t recall any unpleasant experiences. Apart from the fact that losing is unpleasant, I’ve never found any of them unpleasant in court.

[49:35] And, in the last session you were saying, it simply would never have been an option for you to go to the bench in South Africa, and even had it have been an option you’d had no desire to implement, administer the laws which were on the statute books. What about in England?

[49:58] Well I would have liked to have been a judge in England I think. I think being put on the High Court bench is a proper culmination of a good career at the Bar. But it wasn’t on for me here. When I was called to the Bar in England in 1977, I was about 55, when I took silk I was 61 or 62 and you had to be appointed to the High Court Bench you had to have been a barrister for at least ten years, that would have taken me to 1987 by which time I was in my 65th year, and that’s too old to be appointed to the bench, at a retiring age of 70. And at any rate by that time I never thought of it. I don’t know if I’ve mentioned yet, that I’ve sat on various courts.

[51:30] When I was in South Africa there were three territories, either on the border or in one case, right in the middle of South Africa which were British territories which remained British. One was Swaziland and one was Lusutuland and one was Botswana which was Betchuanaland and they are independent countries but they are small countries and it’s always been their practice to have as an appeal court, judges from South Africa or other countries, and those appeal courts are very much part time, they might have four sessions a year of a week or two each, and I sat on the appeal court of Botswana for some years. 81

[52:46] And how did that come about?

[52:51] Well, the then chief justice of Botswana asked me if I would do it. And so I said yes, a week or so, two or three times a year, and I continued to do that for a time even after I came to England.

[53:08] Sorry, that’s right, so that happened while you were still in practice before 1987 then.

[53:16] Yes, yes, it did. Then I gave it up, it was too time consuming to go out for that. Then when I was here in, when would it have been, it would have been in the late 1980s, I was appointed a judge of the courts of appeal in Jersey and Guernsey. Those courts also are manned by English or Scottish silks. Also, very part time. There’s a panel and you would sit in each place perhaps twice a year for a week at each time.

[54:05] And I sat on those courts for about, I suppose, five or six years, because then I automatically retired at the age of 70. And I enjoyed that.

[54:18] And the experience of judging, as opposed to being an advocate, how did you find that on a daily basis, the change in the discipline, the change the way of working, could you explore that?

[54:33] Well, I liked doing it, I found I was able to do it. I liked doing it. I liked sitting on an appeal court with colleagues. But I was happy to do it on that part time basis. By that time of my life, I think I would have missed that independence of being a self-employed barrister, if I just had to do it day after day, month after month, year after year. In 1995 I was asked to be a judge of the Constitutional Court of South Africa and I said I would do it on an acting basis in place of one of the judges who was on secondment somewhere else to the International Criminal Court of the Hague, and I did that, that’s why I was sat as a judge there for a number of sessions. In 1995 and 1996. The court sessions tended to be sessions of a month or five weeks and I didn’t do every session during those years. So I sat, I suppose, for four or five sessions of the court and that was absolutely fascinating because it was a constitutional court with a new constitution. The constitutional jurisprudence had to be built up from scratch. With a lot of reference to comparative law, Canadian constitutional cases, American ones, European Court of Human Rights, and I thought that was an important thing to be doing.

[56:40] And how did it come about that you were asked to do this?

[56:46] Well under the new dispensation, the new South African minister of justice, who had been an attorney in Cape Town, not someone I knew well, someone I had met, I got a letter from him asking if I would be a judge of the court.

[57:09] And did you have any hesitations before accepting?

[57:14] I had no hesitation in saying that I couldn’t be and wouldn’t be a permanent judge. But I said I would be glad to be an acting judge, I was told there was a temporary vacancy, I said I’d be glad to fill that. And that was enormously important

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work on that court. It was very, very important to really to get South Africa on the right lines as a constitutional state. The cases that came up were of immense interest and importance. I think I probably mentioned much earlier on that the first case we heard was on the constitutionality of the death penalty.

[58:12] No. 1995, this is the first time you have been speaking of it.

[58:13] Did I not? Well that’s what it was. That was the first case that the court heard.

[58:26] It was a court of eleven judges and the rule of that court is that all eleven sit for every case, no panels. There is a quorum of I think eight, but that’s in case people are ill or for some reason can’t sit, but everyone sits. So there was a court of eleven, and it was a marvellous court. Court of a sort, you’d not only not seen before in South Africa but I don’t think seen anywhere in the world. Of the eleven judges, I think five were white, six were black, there were two women on the bench, a number of them, both from the black and the white sections, had been high court judges. Either two or three of them, three came straight from academic life. One of them, Albie Sachs, had been in his time an advocate, an academic and of course a political activist. That certainly proved to me the value of diversity on a court. Because there were so many backgrounds. The man Pius Langer who is now chief justice was then a member of the court. He had come from a poor, rural family in Zululand. He had become a court interpreter in the magistrates courts. He had put himself through university part time. He then, when things began to change, he went to the Bar and then he went to the Bar in Durban. And then he went on to the Constitutional Court. And when in cases, there was always a background of fact, he had an insight into what the real position was of the people who were subject to the laws. And, it wasn’t a case of the people being representative, the women on the court didn’t represent women. But there were certain cases in which they somehow just had a slightly different approach and it was, I think it gave the discussions and the judgments a sort of richness which you’d not previously found in them. So I’m a great believer in diversity. I don’t believe in representativeness. But I think diversity is, in an appeal court and I suppose in any court system, it’s a great advantage.

[1:02:19] People have different views of where the law bites and how it bites, and similarly, the fact that those who had had previous experience had had it at different levels in different courts in different parts of the country, that, in other words, they weren’t all pale, male and stale! So I found that was a great experience. I did that until the man whom I was replacing came back. I must have had about five sessions of the court, it may have been four, five probably.

[1:03:08] How does the quality of discussion, if you’ve got an eleven person panel sitting? Is there much discussion before, is there one judgment given, or eleven judgements? How did it work and what was your role in these discussions. You must have enjoyed the make up of that panel.

[1:03:34] Well, there would not be much discussion before the hearing, that was thought to be wrong to express even privately views beforehand. After the hearing, all eleven would meet. And the case would be discussed and each member of the court would be asked for a prima facie view, a first view, and that would be discussed and

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occasionally there would be a relatively straightforward case, not much dispute, and then someone would be allocated to write the judgment. But even in those cases there would, even if there’s no division in the court, there’d often be a concurring judgment written. And sometimes, of course, the court was divided and there were very lengthy discussions, and sometimes there would be many meetings of the judges together. Sometimes in very important cases there’d be a multiplicity of judgments.[1:05:06]In that death penalty case, the court was unanimous that the death penalty was unconstitutional under the new constitution and there were eleven judgments, everyone thought it, and they put it in different ways. The general way the court operated was, that, it didn’t have the sort of strict timetable that they have in American appeal courts. But in general each appeal was expected to finish in a day, the oral hearing, and of course very extensive briefs were put in, more than skeleton arguments, briefs were put in, and each judge had two clerks who were either very junior practitioners or people who had just graduated from law schools. And that worked well. Sometimes if there was a very short point in case on a very short record, the council would be told in advance that the case was expected to finish in the morning or something of that sort, and that worked very well. And of course with eleven judges sitting it was often a very talkative court. Sometimes, I thought, too talkative. But it was a fascinating experience. Did I not tell you about, I know I’ve told a number of people about the opening of the Constitutional Court?

[1:07:00] Well, the new constitution came into operation in I think it was, April 1994, but to set up the court took some time. The first session was, I think, in May 1995. There was an official opening of the court, and it was opened by the President, Nelson Mandela. And I still remember his exact words when he stood up to make his speech, to declare the court open, he said, and this was with absolute factual accuracy, he said, “The last time I came into a court of law it was to find out whether or not I was going to be sentenced to death.” and that was factually absolutely right.

[1:08:20] It’s hard to say that it didn’t influence the hearing on the death penalty. It was the unspoken thing that if there’d been a death penalty, he wouldn’t have been there. He wouldn’t have been reprieved by the government of those years. But I think my time there, you see by that time, I was 72 or 73, I was certainly then, much as I enjoyed sitting there and important though the work was, it showed me quite clearly that at that stage of my life I certainly couldn’t be a full time judge. The idea of coming in every morning, to sit in court at 10 o clock, to go there every day, in spite of the fact that the session, as with the House of Lords, you sat four days week and had long vacations. But I certainly at that stage, the idea of a regular job, coming in daily, one judgment after another, that wasn’t for me.

[1:10:04] But do you think it was just that stage earlier on, you described that after an intense period of work you always liked a long break. Do you think just the independent nature of being a sole practitioner has been suited to you?

[1:10:20] Oh yes. I could never have been a partner in a firm of solicitors. I could never have administered an office of solicitors. However, fortunately, the bench does suit people. I think I’d have been a competent judge. Of course, one of the advantages of

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not being a judge is that if I’d been a judge I’d have retired years ago. I don’t know what I’d have done with myself.

[1:11:13] Yes, I was going to look at that later, but perhaps do it now. The reasons why you are still in practice?

[1:11:19] Well, I’m in reasonably good health. There’s nothing else I particularly wanted to do. I don’t want to write a book or I don’t want to be a professor. I’ve got interests, but my interests are passive interests. I know some people after retirement work seriously at carpentry, and things of that sort. I haven’t got anything like that. And I think if I’d retired I’d probably have stayed in bed till midday every day. So I just feel that I’m very lucky to be able to go on working and I do a limited range of work now. I only take cases where I feel it’s something, I know something about. I try and keep only to short cases, no trials, and even for appeals I don’t take an appeal if there is a huge record and the appeal is going to require mastering huge amounts of fact. So most of the cases I do are short cases, one or two or three days. Four days would be long. I feel I can do that. As long as people want to brief someone of my age, well it’s on their own heads I think. (Laughter). And you know, I have worried about it from time to time. Because certainly in South Africa, I saw some of those great men of the Bar go on too long. And continue to practice when they were really, I thought, past it. It showed in their work in court. And, that’s something that has worried me.

[1:13:55] Of course, there is a two-fold protection for clients, one is the solicitor and the solicitor should be able to tell if you can do the work or not. And the other of course is the clerks. If the clerks think that you’re not going to be able to do a case, you won’t get it because there’s the reputation of chambers at stake. So I hope that it’s all right. I certainly find it more tiring than I used to. At the end of a day on my feet I now feel very tired, which I never used to do. So it is partly a matter of stamina. My memory isn’t as good as it was and I’m more reliant on notes than I used to be. In days gone by I would argue on very brief notes. But now I tend to write out more than I used to. Not that I necessarily refer to those notes but I’ve got them there. There it is.

[1:15:12] So that’s one of your, when we were discussing earlier, your methods of work. That had been one of your hall marks to have very brief notes from which you spoke?

[1:15:23] Yes I always did have some notes. Well you asked about my method of preparing, even when I had brief notes, my method of preparing was to write things down. I never went to court with everything just in my head.

[1:15:44] Is it possible to, are there people who do?

[1:15:48] I don’t know. I think it is – yes, I – well, if a case is of any elaboration, I don’t know that it’s – oh it must be possible, there are people with really fantastic memories and fantastic concentration.

[1:16:20] Shall we draw to a pause there?

[1:16:21] All right.

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[Break for lunch]

[1:16:22] The interrogation is resumed without the presence of a solicitor [laughter].

[1:16:32] You’re well protected, Sir Sydney against my questioning. Thinking about your time in the Constitutional Court, 1995, if we could just go back, in 1990, when Mandela was released, you were in practice in England. So what was that like watching developments in South Africa?

[1:16:59] Oh well it was amazing. Although one wasn’t right there, you see all this time that I’d been in England we still maintained strong contact with South Africa. I used to go there at least once a year, often more than once a year, certainly while there was some practice going there, and even afterwards I was there at least once a year and my wife, Felicia, because of her work for the Legal Resources Trust, would go out two or three times a year. And then, our eldest son lived in South Africa, as he still does. So we kept very close touch and it was a day of tremendous excitement for us as for all other South Africans when Mandela came out of prison and we were glued to the television because it was televised “live” and, everything that happened from then, from the release of Mandela right through to the new Constitution, new South Africa, being a matter of such excitement. It was a miraculous thing. I knew there’d be a changeover sometime. And I thought it could be a peaceful one, but I hadn’t foreseen it coming as soon as it did.

[1:18:28]I’d have thought it would come in the new century. That was remarkable. Then, when there was the actual changeover, first there was an election in South Africa, and we went out there to be there for the election because we had the right to vote. And that in itself was miraculous because you saw at every polling station including the one we went to, huge queues going right down for two or three or more blocks and round the block, just patiently waiting to vote, and most of the people in those queues were black, and the thing is it was the first time they had ever voted in an election. And you felt, here were people who really valued democracy, they valued the vote. There’s no business about, is there going to be a 30 or 40% turnout of voters, it was just huge. And that was a very exciting day. And then, I think it may have been, was it a few weeks, I can’t remember, after that, after the election results for the new parliament, the parliament met and Mandela was elected to be the new President. Well he was officially inaugurated and sworn in as President at the Union Building’s in Pretoria. The Union Buildings had, from the time of union, in just after 1910, been the seat of the executive government in South Africa. A wonderful building, it was designed by Sir Herbert Baker. And it has as part of it in the grounds, a wonderful open amphitheatre. And we were lucky enough to be among those invited, amongst many hundreds if not thousands, invited to the opening ceremony. And there again it was something unheard of, there were all black and white sitting together, and there was people from all over the world, heads of state, and there was Nelson Mandela being sworn in as President. And, there was a flyover of South African Air Force planes. Now to blacks, up to that time, the security forces had been the enemy.

[1:21:27] And I still remember a black family sitting near us, and when this flyover came leaping to their feet and saying, “That’s our Air Force!” – Most amazing time. And it

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was really miraculous. Of course, after a time, one had to realise it was just another country with a state with all the difficulties of running a state, particularly running a state which after nearly, over 40 years of apartheid, which meant a time of deliberately inferior education for blacks, so it was going to be hard and so it was. But Mandela himself was a, well he is not a saint and he always hated being portrayed as a saint. He’s a very human person. But he was the man who was able to do it. And was able to get most of the population to unify behind him, even political opponents, they saw him as someone to be trusted. When I was in the treason trial I think I told you, he was my particular client, and in the days before he gave evidence when we had to get ready for his evidence, instead of his going on the bus to Pretoria, I would drive him over in my car and we would have long talks. Now at that time he was one of the younger leaders of the African National Congress. And my own belief is that his full stature as a leader was brought out in that treason trial. I mean I didn’t know a lot about him at that time, I’d known him, he had been an attorney with Oliver Tambo and I’d had one or two minor briefs in small criminal cases from them, but I didn’t really know him. And during those drives to Pretoria I got to know him reasonably well and had many discussions with him about his politics and his background and what he hoped for. And there’s no doubt at all that he had a natural quality of leadership. Quiet, never a demagogue. His speeches were quiet. He was quiet in the witness box but he spoke always with immense authority and I believe it was during that trial that he really stamped his authority on the African National Congress, because he wasn’t the president and he wasn’t the chief executive, he had come up as a leader of the African National Congress Youth League.

[1:24:30] But he was always a most likeable man. Absolutely firm, he never said things in the hope that he’d be liked for it. Even in the witness box, he knew there were things that the judges didn’t want to hear, but he spoke them out. He explained why blacks wanted to change the system. And he was tremendously impressive. And the other thing is that after the treason trial he went abroad and he went underground and I think, someone had said he’d gone in for cloak and dagger activities. And someone said that it’s a pity there wasn’t more cloak and less dagger because he wasn’t very good at keeping hidden. I think it was within eighteen months the police had picked him up. Because one of the things he felt he had to do was go and meet and address secret meetings of African National Congress people, the movement was riddled with police, so they got him. Once when he was in prison, I made an application to visit him in prison. Those applications all went to the security police and they refused to allow me to visit him. They only allowed lawyers to visit him if it was on legal business, for example, his family business. Or if he wanted to make some legal complaint. But they didn’t just let someone who wanted to see him, come and see him. But he was always very, very extraordinarily warm hearted sort of man, in a genuine way. I don’t know if you ever watched the world cup rugby in South Africa. There he was on the field, wearing a Springbok jersey. Now if you try and imagine any other politician in any country doing that, you would simply laugh at it, you would say, well, this is just a ploy for the camera, it’s a photo opportunity.

[1:27:03]But with Nelson Mandela it seemed such a natural thing to do. It’s very difficult to explain. After he came out of prison, and he went up to Johannesburg where he lived and now still lives and he went into the Johannesburg general hospital for a few days to have a general check up, and when he came out there were large numbers of nurses and doctors at the hospital just waiting to see him come out. Among them was

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my daughter in law who was a doctor at the hospital. And when he came out she plucked up her courage and she went up to him and she said that she was my daughter in law and she’d like to shake his hand. And he said to her, “We don’t shake hands.” And he gave her a great bear hug. And it was a perfectly natural thing to do. And he’s a very humorous chap. When would it have been, I think in 2005, was the tenth anniversary of the Constitutional Court and there was apart from others, there was a legal conference there and so on, my wife and I went to, and then there was a banquet given by the mayor of Johannesburg in the city hall at which the guest of honour was Nelson Mandela. And of course I’d seen him on other occasions since, from time to time. But when he came down from the platform to go to his table we were sitting at the next table, and as he went to his table he saw me and he came up to me and he looked at me and said, Sydney, do you remember me?

[Laughter].

[1:29:26] Priceless!

[1:29:28] A marvellous man. ..Anyway.

[1:29:31] It must have been his experience to have so many people asking him that question! So what was your first occasion of meeting again after he was released from Robben Island? Was it to do with the court?

[1:29:44] Oh when he came to open the court, yes. That was the first time I saw him. Well not that I saw him, I saw him when he was inaugurated as president, but I didn’t speak to him then. No it was when he was inaugurated in the court. Before and after the actual ceremony there was time to talk to him.

[1:30:12] Very extraordinary times for you to be missing in England. Is there anything else you’d like to say about that?

[1:30:25] No, you know, we’ve always kept in close touch with South Africa, we’ve been at least once a year and I’ve sometimes been more often, I’ve been asked to give a talk or a lecture or attend a conference there, which I’ve always been glad to do. And South Africa’s got a great many difficulties, but on the whole I’m optimistic about it. I really don’t think it will ever go the way of Zimbabwe. There are too many good people and it’s a more heterogeneous country than Zimbabwe. There’s no one there who’s going to be in the position of Mugabe and they don’t have the tribal set up you have in Zimbabwe. And, I think it will pull through, they still have enormous problems and we’re not very happy with Mr Zuma who may well be the next president. But you know I think when people become, take that position, they know they have to run the country and I don’t think that he will do the sort of things which would reflect the sort of things he’s been saying more recently. However, that remains to be seen and I doubt whether I will see it.

[1:31:53] So you’ve been in England 30 years, called to the Bar in 1977.

[1:31:59] Yes, I could say I’ve been here 30 years.

[1:32:03] But always a South African in England, but how was it coming to live here? Starting new, friends, social circles.

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[1:32:13] Well as I think I told you, I really started by dipping my toe in the water, I’d come for a short time and go back to South Africa, gradually coming here. Well, we had English friends, I have a brother who’d lived in England for over 20 years. We’d paid many visits to England, but it was strange in many ways. We made new friends. Of course, there are a number of South Africans still are in London, some of whom were old friends of ours. Some of whom we continued to see. And as I think I told you, I found the Bar very friendly, made friends at the Bar and others not at the Bar.

[1:33:10] I think on the whole I’ve had a happy time in England.

[1:33:20] And did you socialise mostly with lawyers, barristers or solicitors?

[1:33:31] I don’t know how you’d put it in percentage. A lot of the friends were members of the Bar, sometimes solicitors, some former South Africans, others not. I don’t know that I particularly made a point of socialising mostly with lawyers, but I think it came out that way. It’s inevitable. But certainly not solely with lawyers.

[1:34:02] And would you say friendships with lawyers influenced some of your work or did the work come really through reputation and the clerks or were there solicitors, you mentioned?

[1:34:16] Well I did become friendly with one or two solicitors. Not many. I don’t think the work came that way. In Johannesburg it was more likely to have come that way. Yes. You know Johannesburg is a much smaller city, the legal profession was much smaller, one got to know people quite well, including some solicitors. It worked both ways, some people who briefed me professionally became friends and some friends who happened to be solicitors came to brief me. I suppose it’s the same for everyone, isn’t it?

[1:35:09]And, in the last session, you talked extensively about your wife’s work in setting up the Legal Resources Centre, and you mentioned that she set up a fund in England and became chairman of the trustees. When you moved your practice and then your life over here, did she who had been a lawyer in practice, practice in England?

[1:35:38] No, never. No she continued, apart from the english charity, she continued on the board of the South African Trust and became chairman there after a time. That’s why she would travel to South Africa at least two or three times a year, sometimes four times.

[1:35:58] And having a wife who was also a lawyer, how did that play out in family life, did you discuss cases with her or did she keep life and work distinct?

[1:36:07] No, very much so because even when she stopped practice herself and worked at the Legal Resources Centre, if I had an interesting or important case, she’d often come to court to listen. During the treason trial she spent many days in Pretoria and she was very much part of all that. Something like the Biko inquest, I think she’d be there every day. Yes, we certainly discussed cases and personalities in the cases.

[1:36:50] Did she ever come and sit in your cases in London?

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[1:36:53]Oh yes, yes, some of the more interesting and important ones she’d come. The House of Lords or the Privy Council or other places. Did I tell you that the first time I appeared in the Privy Council was before I was called to the English Bar? It was the case on UDI in what was then Rhodesia, was called the Madzimbamuto case, which students of constitutional law here know. It was an appeal, after Smith declared UDI, and there was a case in Southern Rhodesia itself on the constitutionality in Southern Rhodesia of UDI. And I was in it in the two Rhodesian courts where we lost. And then the first time I ever appeared in England was in the Privy Council where I came as a member of the Southern Rhodesian Bar, which I was. I was admitted there. That was the first time I appeared in England. And that, of course, we won, but the Smith regime didn’t obey the orders of the Privy Council. But there, I appeared before the presiding judge in the Privy Council was certainly one of the greatest judges I’ve ever appeared before, that was Lord Reid, Scottish judge and a most remarkable judge.

[1:38:34] What was it about him that you found remarkable and noteworthy?

[1:38:42] Well, he was not silent. Not over talkative, but every comment he made or every question was so much to the point, and then the other thing was this, you know, in this case apart from British constitutional law, it also concerned the Rhodesian constitution and the Rhodesian system of law like South Africa’s was Roman Dutch law. [1:39:12] And therefore he had to deal with masses of law and legal authority of a sort which had probably never come before him in spite of all his experience. And, the speed with which he picked it up was quite astonishing. He would say, well, now here’s a Rhodesian constitutional statute, he’d never seen it before, he would page through it and he would put his finger on the relevant section. And he was immensely – of course, I knew him very well by reputation by then. But it was amazing to see him actually in action and of course a very, very pleasant presider in the Privy Council. And there for the first time I saw some of the other English law lords again, whose names I knew simply from the law reports. People like, I can remember who was sitting on that Privy Council with Lord Reid. There was Lord Morris, Lord Pearson, Lord Pearce and Lord Wilberforce, the first time I had ever seen any of them. Of course, Wilberforce I saw quite often afterwards in various contexts. That was many years before I was called to the English Bar.

[1:40:56] So when you were called to the Bar, then, it wasn’t quite as daunting because you had had that practice of appearing at the highest court, the Privy Council?

[1:41:05] Yes, and in fact, before I was called to the Bar, I had another appeal in the Privy Council from Lesothu. On a question, relating to the technical legal question was whether Lesothu, when it became independent, had succeeded to rights and obligations under a treaty about asylum seekers, Geneva Convention on asylum seekers, and that went to the Privy Council and I was briefed to do that appeal.

[1:41:47] Now on that appeal, for some reason or other, I don’t have the same memory of the court. It was presided over by Lord Morris and I know Lord Donovan was sitting and Lord Guest, and the other two I just don’t remember. So I had appeared twice in the Privy Council before I came to England.

[1:42:21] So these kind of cases meant you were well placed when it came to make that written submission on your own behalf to Lord Hailsham, about being a British subject [Laughter]. But in that, when you were talking about that, you were

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mentioning about having looked up about this American who’d become a QC in the 19th century and how his name often came up in cases of the seventies, and I presume that was in the eighteen seventies, so I was thinking about that, wondering did you come across him and his name due to cases you were researching or did you always have an interest in legal history?

[1:43:10] Well actually I can give you a specific answer. That man, his name was Juda Phillip Benjamin, was the author of what was, of The Law of Sale. And when he came to England and didn’t have much work, he wrote that book and it went through many, many editions. In the library, the Bar library, in Johannesburg, there was Benjamin on Sale. I don’t know who the latest editor was but it was a book that was published well into the 20th century. I know that I occasionally looked at it on questions of the law of sale. But there was a preface to Benjamin on Sale, quite a long preface, which gave Benjamin’s history and that’s how I first knew about Juda Phillip Benjamin and then I looked him up in other places, in the DNB and Dictionary and National Biography and other books, that’s how I knew about him.

[1:44:25] So, is legal history something you are interested in?

[1:44:30] Well, not interested in the sense that I’ve never been a legal historian, but, yes, I have had an interest in it in the sense I’ve liked to read biographies of lawyers of the past, and things like Heuston’s book, Lives of the Lord Chancellors, things of legal history of that sort, yes.

[1:45:00] Although you did mention, you thought, many legal biographies weren’t that interesting.

[1:45:06] No. Legal memoirs are often not interesting. Legal biographies, by good people, can be very interesting. It’s the memoirs, where I said, that they only remember the cases they won, yes.

[1:45:22] Well, you’ve dealt with a lot of cases, won and lost, in these interviews. You became a bencher in 1985, mid 80s.

[1:45:36] 1986, yes.

[1:45:41] Is that something that you were invited to do? Or did you apply?

[1:45:50] No you don’t apply. Well each Inn, the governing body of each Inn, the Benchers, and it is a self perpetuating body. The Benchers themselves elect people to the Bench, and I had no idea that this was going to happen because mostly people only became Benchers after they’ve been members of the inn and barristers for a very long time, but I think my name was put up by Lord Oliver; who was then a senior bencher, and it was a great thing, I love Lincoln’s Inn and it was a wonderful thing for me to become a Bencher. And I’ve enjoyed it very much.

[1:46:43] And what is it that you love about Lincoln’s Inn?

[1:46:50] Well I like its history. I like its buildings. And I have found that the Bench, the fellow Benchers, were very convivial and very welcoming. I know sometimes, South African visitors have been quite shocked by what they regard as the hierarchy in Lincoln’s Inn, that the Benchers dine on a special table and they get special food and 91

wine at dinner, and so on, but actually it’s very pleasant. You know, as Benchers we dine there at least once a term you are expected to dine, sometimes more often, and they are always very pleasant occasions. And it’s a very pleasant place to take guests. Take guests for dinner.

[1:47:43] And a wonderful library. I must say, I suppose I’m allowed to say it on this archive which won’t be listened to by anyone for 75 years, if at all, but a few years ago Lincoln’s Inn commissioned a portrait of me to hang in the Inn, which I was very gratified by. So I feel very warmly towards Lincoln’s Inn.

[1:48:26] And, I know that you’re not going to like me asking this, but I have to just describe, that you are sitting in an armchair, and on the floor, not hung on the walls, but leaning against the wall are several honorary memberships and fellowships to Harvard …

[1:48:46] No, no, not Harvard, one of them is, I’m an honorary member of the Association of the Bar of the City of New York.

[1:49:00] And the other one is the …

[1:49:03] The other one is, I’m an honorary fellow of the American College of Trial Lawyers.

[1:49:09] And there are lists of honorary doctorates and universities that you’ve been …

[1:49:17] Yes, I’ve had some honorary doctorates.

[1:49:24] And, what do they mean to you, or can you describe about them, it’s very noticeable that these things are on the floor and you don’t hang them up.

[1:49:31] No, well, I suppose, it’s... it would be quite false to pretend that one isn’t gratified by being asked to accept an honorary doctorate. That was certainly so in respect of the universities in South Africa, three of those have given me an honorary degree. Really for my work that I did in South Africa, and then so have three English universities, much more to my surprise I think I should say. The first honorary, I got English ones before I think my first South African one, not quite sure, but the thing is that, you know, it was very pleasant. You go along, and someone makes a complimentary speech about you, and you stand there looking suitably modest, and I was glad and so was my family. It was I suppose a sort of recognition of my professional work.

[1:50:54] Yes. It’s just quite interesting that your wife’s work, you were able to talk about that in such detail in saying that she did the really important cases, but do they help you realise the level of impact that you had …

[1:51:17] Well, I always feel a bit of an imposter when that happens. I don’t really feel myself that it was of such importance. But as I say, it’s very gratifying when people say. Incidentally, my wife has got what I think is the real honorary degree and I don’t know if you’ve heard of Haverford College in Pennsylvania, one of the great liberal arts colleges of the United States. One of the very old ones. Well they gave her an honorary doctorate some years ago for her work. Which was very gratifying to her whole family. 92

[1:52:08] And does she hang her’s on the wall Sir Sydney?

[1:52:11] No.

[1:52:12] You’re well matched then in your honorary doctorates. And you received a knighthood or were awarded a knighthood I should say. When did that come about?

[1:52:21] I think it was in 2000. It was a KCMG.

[1:52:28] And is there a citation with that?

[1:52:31] I think they just said for contributions to international law and justice. I suppose they couldn’t think of anything else to say. Anyway, they did.[1:52:47]And there again, mine not to reason why. [Laughter] Mine just to accept it.

[1:52:35] And is it something that has brought you pleasure?

[1:52:58] Yes, it has. Again it’s nice to have your work recognised.

[1:53:07] Absolutely.

[1:53:11] People used to say that it helps you to get good tables in restaurants and so on, it’s never helped me to do that I’m afraid. [Laughter]

[1:53:19] Maybe you’ve never had any problems.

[1:53:24] But it’s a pleasant thing to have and my family were quite chuffed about it.

[1:53:31] And thinking about, in a way it’s such a long career, now.

[1:53:37] I’m afraid so.

[1:53:38]59 years! And it’s shifted between two countries, but the essential work of being a lawyer, what are the changes that you have seen during your time in practice, if any?

[1:53:53] Well, I think with regard to the Bar in both countries, the professional rules have relaxed. When I started in South Africa the Bar had very strict rules, which followed English rules, such as a QC had to have a junior who had two-thirds of the fee. Then there were very, very strict rules against touting in both countries. There were strict rules about your relationship with solicitors. It was frowned upon if you went out of your way to entertain solicitors. Well, of course, that’s as you know all changed. Now, barristers’ chambers advertise. In particular ways, in limited ways, but they advertise. In the old days that would be called touting you could be dis-barred for that. I myself don’t like that very much, I don’t think that advertising is necessary, I don’t think it’s professionally proper, but it happens and everyone does it. Chambers have got websites and on a website the chambers set out the cases their members have been involved in. Usually without giving the result of the case I might say, but that’s what you find. Then there’s the idea that you have bruted about that we are a service industry. We’re not an industry, we’re a profession and I think there’s a difference and I think the difference is in your attitude to your clients. Your clients aren’t customers, you have a relationship and a duty to your clients which Tesco doesn’t have to its customers.[1:56:03]On the other hand, I think the relaxation of the

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relationships between barristers and solicitors is all to the good. I think the relationship is now easier. Many years ago, after I came to the English Bar, there was I think a green paper on opening up rights of audience in the High Court to solicitors. Well, there was an extraordinary reaction from the Bar here, that this was going to be the end of the Bar with solicitors could appear in the High Court and I must say, that was my view also at the time. But of course nothing of the sort has happened. It hasn’t ruined the Bar. Occasionally solicitors do appear in the High Court and it does no harm. You find that if it’s a case of any importance they still brief barristers but there are various things that they can do. I see nothing wrong with that. What I do see, of course, to my mind it’s become harder and harder for junior barristers to make a go of it. I think the profession did become somewhat overcrowded. It was very dependent on legal aid work and the drying up to a large extent of legal aid I think has been a disaster which hasn’t hit people in chambers like this, but certainly has hit the junior criminal Bar. And I think that that is a very serious thing. Because I’ve always believed that the rule of law doesn’t depend on great constitutional cases in the House of Lords, [1:58:07]it depends on the fact that there is a barrister who will go into court for anyone charged with any criminal offence of any seriousness and will do the case with competence. And to undermine that section of the Bar, that’s the real attack on the rule of law. So I think that is unfortunate. In many ways, I feel that I’m glad in a way that I’m not a young barrister starting out now. For some, who get into chambers like this, it’s great.

[1:58:42] But you know, there are not all that many of those, here we’re just a set of chambers now of over 60. We only take four pupils a year and of those we very seldom take more than two as tenants in these chambers, there just isn’t room to go on expanding chambers. And what this means is that there are many very, very able young people who qualify for the Bar and who either can’t get pupillage or can’t get the pupillages they want or get pupillage and can’t get a decent tenancy or any tenancy. And that’s a very sad thing. Of course, those who do make it are better off perhaps than people in their position would have been 30 or 40 years ago because pupillages are now paid to some extent and also if you get into a decent set of chambers you don’t hear the stories that you used to hear of people waiting for five or seven years before they got any decent briefs. But on the whole I think things are harder for newcomers. Taken as a whole.

[2:00:03] Can I just ask you to say a little more about what you think the difference between lawyers having customers, not having customers rather, and having clients, that a lawyer has rights and duties towards a client, which you would say, Tesco didn’t.

[2:00:24] Yes, as a barrister, when you have a client you’ve got very important duties towards the client. One which goes without saying, is that the duty of confidentiality. Then in doing your work, you have got to give primary regard to the interests of the client. You’ve got to advise him to the best of your ability.

[2:01:01]You can’t make yourself popular with him by giving him advice he’d be glad to hear, you may have to give him very unpalatable advice. And similarly, if in court, of course, you’re bound by a professional rule, you’ve got a duty to the court as well and you can’t mislead the court, but your duty otherwise is to your client. It might make you very unpopular and this was certainly true in South Africa, it might make you unpopular with government or with trade unions or even with your friends, but you’ve got to do it. And that’s something that the people who, the like the Office of Fair

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Trading, who regard the rules of the Bar as being simply anti-competitive, and not in the interests of the public, well they are absolutely wrong, our rules, our basic rules are in the interests of the public. Take the rule about not having partnerships. The reason we don’t have partnerships is that we each have this individual relationship with the client. If you’re in a firm of solicitors, a big firm of solicitors, you can’t have a cab rank rule, because then you’ve got to look to the interests of your partners, someone comes along with a case, oh, you may not be able to take the case because some of the clients of other partners would not like it. They wouldn’t like it very much. Or they say, well, as a firm of solicitors, we are doing quite a lot of government work and we don’t want to take cases against the government. Or we’ve got insurance companies as clients. This is a case, not against any of our clients but against another insurance company, but our insurance company clients won’t like us taking - you see, so solicitors can’t have a cab rank rule. It’s not that they are not as moral as we are, but it’s a different set up. Here, the fact that each of us as individual means, you take case for a particular client, whether the other members of your chambers like it or not is absolutely irrelevant.

[2:03:40] And if you mess up the case well you’ve messed it up but you don’t have to worry about your partners are going to think about it. And I think that is most important and I also believe that this independence you have at the Bar, is a reason why the best judges are people who have been members of the Bar because they have over the years had inculcated into them this idea of independence. And also the fact that you aren’t appearing simply for one client or sets of clients, that’s why it’s important so many of the people who have been judges, say criminal judges, they’ve prosecuted and defended, and I feel about that very strongly because of the difference in South Africa under apartheid where you had innumerable political appointments to the bench and here in my time at the Bar I’ve not heard the slightest hint of a political appointment, nor have I heard of anyone not being appointed to the bench because of his political views, whereas in South Africa it constantly happened. So I take things like the cab rank rule and the independence of the Bar very seriously. Because I’ve seen what happens when they start to be undermined.

[2:05:16] And from what you said a little earlier, do you feel there’s diminution in the independence of some of the barristers, or are they getting too close to clients in that they’re beginning to tell them things they want to hear?

[2:05:35] No, in this country?

[2:05:37] Yes.

[2:05:38] I’ve never come across that. If it happens I don’t know. I’ve not heard it suggested by anyone. I tell you something which I watch out for, I don’t think it’s happened. One of the results of this relaxation of professional rules, is that you find if you look, there’s some major case that’s been on in court, when the case has finished the television cameras are outside the court, the solicitor makes a statement. He says, this judgment is wrong and we’re going on appeal, and so on, in other words the solicitors are acting as PR people for their clients. I think that’s most unprofessional. And so far no barrister has done it that I’ve seen and I don’t think we’re entitled to do it. And I hope, if any barrister did try that, the Bar Council would be down on him by a ton of bricks, because one of our strengths is that we have this slight distance from our clients. It doesn’t mean that you can’t be friendly with your clients, sometimes a

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client is a friend or becomes a friend, but you mustn’t be the spokesman for your client out of court. Anyway, that may be an old fashioned view.

[2:07:14] Well it’s very clearly put. Your experience of judges in South Africa and judges here, you were talking about you hadn’t come across any political appointments or interference, the debates surrounding the law lords and their new Supreme Court, and law lords voting in the House of Lords, do you have any views on that?

[2:07:50] Well mostly the law lords didn’t vote on anything in the House of Lords that had any political, certainly, implications. Not inevitable, for example, I know that when the Hunting Act came to the House of Lords, Lord Hoffman voted against it, and that disqualified him from sitting in the case on the Hunting Act.

[2:08:12] So I think there was a convention that they didn’t speak or vote on anything that was political, but you know, in the United States Supreme Court, on a constitutional matter of any importance, you pretty well know how each judge is going to go, that’s just not so in the House of Lords, you don’t know. They are not there for political reasons and you can’t even divide them into liberal and conservative really. Those terms have very little meaning.

[2:08:55] And is that a strength as far as you’re concerned?

[2:08:59] Oh yes, it’s a very great strength. And it also means their appointments are kept out of the political arena. You know if you talk to Americans, say, about a Supreme Court judge, they will know which president of which party appointed that judge, and not only in the Supreme Court, in lower federal courts too. Here, I don’t know, and I doubt whether anyone remembers, who it was, who appointed this or that judge. I mean take Bingham, when he was first appointed to the bench, was it by a labour or a conservative Lord Chancellor – I don’t know.

[2:09:40] And do you think that will hold good even in the light of things like the decision in Belmarsh where the …

[2:09:47] Oh well, yes, you know, since Belmarsh there have been appointments to the House of Lords. Not the slightest hint of anything political in them. I mean if anything, I would say the last two appointments were appointments of people who I would guess, in general, would have very liberal views. That is Lord Mance and Lord Neuberger. I have just not seen it at all, and what’s more, I’ve never heard any member of the Bar say, “Oh, so and so was just a political appointment,” or “So and so didn’t get on to the bench because of his politics. Take someone like Stephen Sedley, I think he would be classed as a leftwinger but it didn’t stop him, a) getting to the bench, and, b) getting to the Court of Appeal. Many, many of his judgments at first instance were against the government of the day, it didn’t stop him getting on the Court Appeal and that’s a wonderful thing in this country.

[2:11:00] It’s rather a general question, is there any, you’ve been talking about young lawyers, is there any advice you’d give young lawyers starting out today?

[2:11:09] What sort of young lawyers, do you mean young barristers?

[2:11:11] Barristers, sorry, lawyer’s too general a term.

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[2:11:21] Well, the advice I’d like to give which is not all that easy in the set up of the Bar in England, I would say, don’t specialise at too early a stage, do every sort of case you can. But of course, I mean, if you’re in chambers like this, very few criminal cases … [2:11:38] … come along. They do sometimes, someone wants someone to appear in a magistrates court. The other thing I say is that it’s very nice to be the second junior in a big civil case and you’re well paid and what you’ve got to do is look through all those fifty box files of documents, but I say, that the best experience you can get is a case on your own, even if it’s a small case in the county court or magistrates court case or before a tribunal, appear on your own, that’s the real thing that teaches you your profession.

[2:12:23] And, you’ve described there are different styles, there are as many different styles of being an advocate as there are different styles of personality, but what qualities do you think equip someone for being a good barrister? A good constitution perhaps, but …

[2:12:50] Well, firstly, I think it stands to reason you must be someone who’s prepared to stand up and talk. That’s one of the good reasons for a division between the Bar and a solicitor. There are many brilliant lawyers who just don’t want to stand up and talk. They are not happy standing up and talking. So firstly, you mustn’t be afraid of the sound of your own voice. You have got to be prepared to get up and talk and in fact to get some satisfaction out of speaking. That I would think is the main thing, if you haven’t got that, there’s no point in being at the Bar at all. If you just hate the thought of standing up and talking then you mustn’t be a barrister. Apart from that, well, I don’t know, you see, now by the time people come to be barristers, they are so well qualified. They’ve got good degrees, they’ve usually had one or two gap years where they’ve got experience, they’ve gone through the Bar Vocational Course. Usually by the time they come here they know what they want to do, and what I say to them doesn’t really matter.

[2:14:18] But what are the qualities needed. Well, I think one of the qualities you need is resilience. Because the things that can happen to you in court when you are a junior can really be frightening. I remember in one of the early cases I had in Johannesburg was a civil application for an injunction. And I was briefed on the basis that this was an urgent application. And they had a system there that if you had an urgent application to take priority to be dealt with at once by a judge, counsel had to sign a certificate that in his opinion it was urgent. And I did that, the first time I’d done it and came before a rather tough judge and I’d signed the certificate and the judge had looked at the papers and he said to me, Mr Kentridge, I don’t think this is urgent, it should just go on the ordinary role, and I thought, my God, what have I done, will I have to resign from the Bar. What a terrible thing. And I remember, I actually went round to see that judge and I said that I was very sorry that I genuinely thought it was urgent. And he just laughed and said, it’s happened to everyone, don’t worry about it. And then, you know, you’re young, and you come in front of one of these impatient judges or a judge who isn’t one of the courteous judges, and the judge is unpleasant to you, you’ve just got to be able to take it. You can’t be over sensitive in that way.

[2:16:24] Or the judge can sometimes, more or less, tell you that you’re talking nonsense and there’s your client sitting behind you. And that’s what I call resilience. You’ve got to be able to take knocks. You’ve also got to be able to stand up to a hostile judge. And I think it is a hard working profession. You’ve got to be prepared to work very long

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hours at times. And be prepared to work at night and weekends if necessary. Now there’s one piece of advice which I’ve always, not always, certainly since I was a senior counsel, given to young advocates, and that is, if you’ve got to choose between neglecting your work and neglecting your family, then you must neglect your work. But it’s a very, very difficult piece of advice for young barristers to take. But there must be a balance, it’s not easy to achieve and I think in my early years at the Bar I didn’t achieve it. But then I began to achieve it. One of the things you’ve got to learn is that you can’t take every case that’s offered to you. So that advice won’t make a book or even an article, but there it is.

[2:18:07] It comes from 59 years of experience in practice …

[2:18:12] You see my wife had the contrary piece of advice, or maybe supplementary piece of advice. She said, no woman should marry a busy barrister. [Laughter] Fortunately it came too late for her to apply it to herself. But that’s what she said. What do you think about that?

[2:18:41] I will tell you afterwards, not my life history on tape. [Laughter] Just thinking about the recording, who have you told about making the recording, and have you got any thoughts about this process?

[2:18:59] Well, I’ve told my family and one or two or my colleagues, I’ve told them what I’m doing, when I’m closeted here with you. I suppose I might have mentioned it to friends. But I haven’t put an announcement in the paper.

[2:19:19] We’ve come along way from the – cinemascope – Charles Chaplin with your grandfather in South Africa.

[2:19:33] Oh yes, bioscope.

[2:19:37] Bioscope. To you currently practising in the House of Lords. Is there anything else that you would like to add? Or any area that you’d like to add, something that we haven’t mentioned?

[2:19:51] Well, there are probably many things that we haven’t mentioned. Some of them negative, such as I’ve never been a writer. I haven’t written any books. I’ve written very few articles.

[2:20:16] Is that a cause of regret?

[2:20:18] No, it’s just how it is. I’ve never wanted to write a book. I have given a number of public lectures and speeches, which I’ve done either at universities or to legal bodies. But as I think I said, I’ve never wanted to write my memoirs, my family and others have pressed me to do so, and perhaps in some way this will be a substitute for it.

[2:20:53] Given how hard, you’ve explained, that there are periods when you have to work very hard, as a barrister, what have been the things which have balanced that, the interests?

[2:21:08] Well, I’ve always been a reader. And no matter how late I’ve gone to bed, before going to sleep I’ve always read something else, and I’ve never been an obsessional

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worker, I think I said at an early stage that I’d rather be reading a novel and I read novels and history and biography and then music has been a great thing in my life. I’ve never been a performer but as a listener.

[2:21:47]I’ve always had a great interest here in opera. And in the theatre. So that’s why I said my interests have been passive, listening, watching, reading, not writing or gardening or carpentry. Unfortunately, I haven’t ever been a painter or artist, that was a great thing in my wife’s life when she realised that she wanted to paint and could paint which came only when our son, who is an artist, I think probably when he was 19 or 20 or thereabouts, he suggested she should try it, so she really inherited her talent from her son. But I’ve not had any talent of that sort.

[2:22:49] And, despite this weight of reading professionally, I think you mentioned a figure of 50 box files, that hasn’t put you off reading for pleasure?

[2:23:02] Oh no, the contrast is so enormous. Yes.

[2:23:12] And, retirement doesn’t beckon after 57 years, so no plans to take up any new pursuits?

[2:23:24] No, recently, this year in fact, these chambers commissioned a portrait of me. And when I went to the first sitting with the artist he said to me, is this portrait to mark your retirement, so I said, no, but now that you mention it, I said, it may be a hint from chambers that the time had come to retire, well if so, they haven’t been pushing it. Well I can see pleasures in retirement, really the pleasures of laziness. But as I say, I don’t know what I would do if I retired. I enjoy still being a member of chambers, I quite like the feeling that every morning I come into work with millions of other people in London. And I do very few cases in court in any year, and I do a bit of consulting and writing opinions. And I still like doing that. I’ve asked people to, not to hesitate to tell me when they think I’m past it, and so far either they haven’t noticed it or they’ve been too nervous to mention it, but so it goes on, and I suppose one day it’ll dry up and then I’ll stop. But I’m quite content to do a few cases a year of the sort that interest me.

[2:24:59] Thank you very much indeed.

[2:25:05] Oh thank you for being so patient, and I’ve no doubt that in the early hours of tomorrow morning I’ll think of a dozen things I should have mentioned.

[2:25:12] The record does not stay closed Sir Sydney, any time you’d like I’m very happy to come and we can put it on tape.

[2:25:20] But I think this is it, right? Well thank you very much.

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