Gilbert Marcus Constitutional Court Oral History Project 20th December 2011 Int This is an interview with Advocate Gilbert Marcus and it’s the 20th of December 2011. Gilbert, thank you so much for agreeing to participate in the Constitutional Court Oral History Project, we really appreciate it. GM It’s a pleasure. Int I’ve had the pleasure of interviewing you before for the Legal Resources Centre Project and during that interview we didn’t really get an extensive biography, and I wondered whether we could actually start at the very beginning today and talk a bit about your background in terms of what it was like growing up in South Africa during apartheid, and where your social and political conscientisation arose? GM Well, I’m born and bred in South Africa. I’ve lived here all my life apart from one year when I studied in England. But I came from a political family, for want of a better description. Political in this sense: my mother was a refugee from the Nazis. In 1939 she fled from Czechoslovakia to escape Nazi persecution. Her immediate family were lucky enough to escape but many of her family were killed in the concentration camps. And my father was a World War Two veteran; he spent six years in the South African army, but also fighting Germany and the Nazi regime. So with both parents coming from backgrounds like that, I had an upbringing, which was at least acutely conscious of human rights issues, and I think that that certainly had a fairly profound influence on my life and my thinking. So I was brought up in a household in which respect for other people, tolerance of difference, tolerance of free expression and the like were really watch words of the way I was brought up. I then went to university, the University of the Witwatersrand, at a very turbulent time in our history. I was there from 1974 to 1979. During that period, of course, there was the Soweto Uprising, there was the invasion of the South Africa Defence Force into Angola, and I was involved in student politics, and that too sharpened my awareness of what was going on in South Africa. And then in 1980/81 I spent a year in England studying, and that distance I think really made it absolutely clear to me that I didn’t want to pursue a career in corporate law. I wanted to do something that was possible at that time in relation to human rights. And while I was at Cambridge I contacted John Dugard to talk to him about the possibility of joining the Centre for Applied Legal Studies when I’d finished studying. And that was set up. I came back, I finished my articles of clerkship, I did my pupillage with Denis Kuny, and then I went to the Centre for Applied Legal Studies for eight years until 1991. 1 Int Gilbert, I want to take you a little bit back. Growing up in South Africa, in terms of awareness…you’d mentioned your family background, but in terms of personal awareness of racial discrimination, I wondered when your first memories of…when those were? GM That’s an interesting question. I remember a particular incident at our house. In fact, it was a pass raid. And it was conducted, believe it or not, by a lay preacher in the synagogue. And my father was absolutely incandescent with rage, on two levels. The fact that there was this extraordinary invasion of those working for us, the indignity of having to produce their pass books, and that it was carried out by a man who professed to be religious, and a man of piety and the like. I must have been six or seven at the time, but I remember that very, very clearly. And it was a shocking incident, and I suppose that was part of my awareness. But growing up in that kind of household in which political discussions were a daily occurrence. My father was involved in the formation of the Progressive Party, as it was in 1959, so there were politics going on all the time and I was exposed to it as a young boy. And I suppose by process of osmosis, more than anything else, my awareness grew. Int Intellectually, in terms of intellectual development, I was wondering what your source of intellectual development, was it particular role models in your family or in school, or were there certain newspapers that you found very enlightening? GM I suppose intellectually the development of significance probably took place at Wits. Certainly it was, as I suggested, a crucial time in our history, and because of the environment in which the university was operating there was an exposure to a great deal that simply was not generally available. There was an exposure, which I had to banned literature; there was an exposure to writings of people, which were just simply suppressed. The university environment, I should say, facilitated access to things, which were suppressed, and I think that was critical. And also being in a community, if you like, of people who were opposed to apartheid, and had a perspective which was simply not generally known in the country at the time. Int You were also there involved in student politics through NUSAS (National Union of South African Studies), and I wondered whether you could talk a bit more about that, given that it was such a turbulent time and there were quite a lot of issues between the group by Steve Biko and NUSAS (National Union of South African Students), as well… GM You’re absolutely right. There were a range of tensions that occurred at that time. There were certainly the tensions around NUSAS, the National Union of South Africa Students, and its attempts to have a voice at the various universities, which was vehemently opposed by right-wing elements, within all 2 the universities, including Wits as well. So that was one strain. There was a secondary strain, and that was the tension between NUSAS (National Union of South African Students) and the South African Students Organisation, SASO, and the birth of that movement, in which Steve Biko certainly played a critical role. And it was a time of trying to accommodate, if you like, the place of white politics, black politics, how it could be accommodated in a racially divisive society, and the universities were an important crucible for those kinds of debates. They were often difficult debates, they were often uncomfortable debates, but they were on-going debates if the truth be told. Int I’m also wondering, in terms of the 1980s when you went to Cambridge, and looking at South Africa from afar, it sounds like that’s where your legal trajectory really got formulated? GM I think that that’s right. I think that the distance from South Africa, and again, the exposure to writings, literature, news, if you like, which was just not available in South Africa, put things, for me at any rate, into a much sharper focus. I suppose when you see what’s going on from a distance and you’re not living within that particular society, things do assume a precision and a sharper focus than they would otherwise have. In South Africa life carries on, what you read in the papers, there was bad stuff that obviously was reported on but it was mixed in with everything else. Life carries on. When you see it from a distance, it’s not the same. And the focus was on the injustices of the apartheid regime. It was a time of the school’s boycotts around Johannesburg, which spread across the country, and, you know, we saw footage of things that people in South Africa were not allowed to see. Int I’m also wondering about your eight years at CALS (Centre for Applied Legal Studies). CALS at that time was really regarded as being very radical and really kind of going against the tide, as such. I wondered whether you could talk about the mainstream of your work during your time at CALS? GM Well, at the time that I went, there were really only two possibilities for somebody who wanted to work in public interest law. It was either the Centre for Applied Legal Studies or the Legal Resources Centre. And I certainly toyed with the idea of going to the Legal Resources Centre as well. What attracted me though to the Centre for Applied Legal Studies was that their work spanned really across a range of disciplines. It involved teaching, it involved research, and it involved litigation. I went to CALS as a litigator, that’s why I did my pupillage before I went to CALS because I wanted to be able to litigate in the areas in which CALS was operating. At that stage CALS was focusing on freedom of expression, labour law, and all the laws which affected or implemented racial discrimination, including the Pass Laws, forced removals, and the like. While I was at CALS, I was involved in two campaigns, which I do think serve as credit to the legal profession. They were campaigns against the Group Areas Act, and campaigns against the Pass Laws. And in both 3 instances we, at CALS, provided at least a rallying point for lawyers to defend every single case. We embarked upon a strategy, I stress, together with a range of other organisations, in relation to the Pass Laws, particularly with the Black Sash, in which we tried to organise legal defence for every single case.