And Justice For All

Stephen Ellmann

Description

And Justice For All: Arthur Chaskalson and the Struggle for Equality in South Africa is a biography of a remarkable life lived in service both to law and to the struggle for social change and justice. The social change it describes is the victory over apartheid, which was won on several fronts and through the efforts of people in many nations, but an important one of those fronts lay in the courts of South Africa itself. In exploring Chaskalsons life and career, we appreciate more clearly the roles lawyers can play in social change and the achievement of a just social order, and at the same time we gain insight into the combination of upbringing, experience, and character that shapes a man first into a cause lawyer and then into a path-breaking and foundation-laying judge.

Sujets

• Droit et juridique
• Republic of South Africa
• África
• South Africa
• History of Africa
• Activism
• Africa
• Afrique du Sud

Informations

• Publié par: University of Georgia Press
• Date de parution: 30 juillet 2020
• Nombre de lectures: 0
• EAN13: 9781588384362
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

IN MEMORY OF
A RTHUR C HASKALSON
24 NOVEMBER 1931 TO 1 DECEMBER 2012
AND
S TEPHEN E LLMANN
20 JUNE 1951 TO 8 MARCH 2019
Your battles inspired me - not the obvious material battles but those that were fought and won behind your forehead.
JAMES JOYCE , The Selected Letters of James Joyce
My dear Steve,
I promised to shepherd your manuscript to publication and, thanks to the support of the editorial teams with Pan Macmillan South Africa and NewSouth Books in Montgomery, Alabama, readers around the world will have an opportunity to learn about Arthur and the power of using the law to do what is right.
The son of English professors, your parents inspired you to use the power of language to fight for justice, which you did with clarity and humility throughout your life. This project sustained you during your battle with cholangiocarcinoma, reminding us that life is a precious gift not be squandered. Thank you for showing us how to live each day to the fullest. Your memory is a blessing and your love, friendship, resilience and commitment to justice for all will continue to inspire us. Thank you for sharing with us Arthur s story and for the love you both had for all South Africans.
With all my love
Teresa
And Justice for All
For my dear Teresa, with my love

NewSouth Books
105 S. Court Street
Montgomery, AL 36104
www.newsouthbooks.com
2020 Stephen J. Ellmann and Teresa M. Delcorso-Ellmann
All rights reserved under International and Pan-American Copyright Conventions. Published in the United States by NewSouth Books, Montgomery, Alabama. No part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form, or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of the publisher.
Publisher s Notice: Because of its subject matter, this work was rightfully first published in South Africa, in 2019, by Picador Africa, an imprint of Pan Macmillan South Africa. The British-style South African conventions of spelling and punctuation have been retained in this U.S. edition.
P UBLISHER C ATALOGING - IN -P UBLICATION D ATA
Ellmann, Stephen.
And justice for all: Arthur Chaskalson and the struggle for equality in South Africa.
p. cm.
Includes index.
ISBN 978-1-58838-428-7 (hardcover)
1. Africa. History-South Africa. 2. Biography-Lawyers Judges. I. Title.
Library of Congress Control Number:
Printed in the United States of America by Maple Press
A T N EW S OUTH B OOKS :
Suzanne La Rosa, publisher; Randall Williams, editor-in-chief; Lisa Emerson, accounting manager; Lisa Harrison, publicist; Matthew Byrne, production manager; Beth Marino, senior publicity/marketing manager; Laura Murray, cover designer.
A T P ICADOR A FRICA :
Editing by Russell Martin; Proofreading by Catherine Munro; Indexing by Christopher Merrett; Design and typesetting by Triple M Design
Cover photograph of Arthur Chaskalson and Nelson Mandela in conversation at the Soccer City rally, on 16 December 1990, courtesy of the European Pressphoto Agency
Contents
PREFACE
ACKNOWLEDGEMENTS
C HAPTER O NE : Family
C HAPTER T WO : Preparing for Practice
C HAPTER T HREE : Finding his Course
C HAPTER F OUR : Early Political Cases
C HAPTER F IVE : Romance
C HAPTER S IX : Rivonia: The Defence Team and its Work
C HAPTER S EVEN : The Rivonia Accused Make their Case
C HAPTER E IGHT : Rivonia s Aftermath
C HAPTER N INE : After Rivonia: Arthur s Practice
C HAPTER T EN : At Home
C HAPTER E LEVEN : Founding and Leading the Legal Resources Centre
C HAPTER T WELVE : The Work of the Legal Resources Centre
C HAPTER T HIRTEEN : Lawyering beyond the LRC - and the Delmas Treason Trial
P HOTO S ECTION
C HAPTER F OURTEEN : In (and near) Academia
C HAPTER F IFTEEN : Negotiations Begin
C HAPTER S IXTEEN : Shaping South Africa s Constitution
C HAPTER S EVENTEEN : Forming the Constitutional Court
C HAPTER E IGHTEEN : Leading the Constitutional Court and the Judiciary
C HAPTER N INETEEN : Jurisprudence: Establishing the Court s Constitutional Authority
C HAPTER T WENTY : Jurisprudence: Regulating Power
C HAPTER T WENTY -O NE : Jurisprudence: The Protection of Rights
C HAPTER T WENTY -T WO : Jurisprudence: The Process of Transformation - and Saying Goodbye
C HAPTER T WENTY -T HREE : After Retirement
C HAPTER T WENTY -F OUR : At Home Again
C HAPTER T WENTY -F IVE : Departure
NOTES
INDEX
Preface
And Justice For All: Arthur Chaskalson and the Struggle for Equality in South Africa is a story of the role of law in epochal social change, and of a remarkable life lived in fidelity both to law and to the struggle for social justice. The social change it describes is the victory over apartheid, which captured the imaginations of people all over the world. That victory was won on many fronts and through the efforts of people in many nations, but one of those fronts, and an important one at that, lay in the courts of South Africa itself. Arthur Chaskalson s story embodies the story of law in the struggle against apartheid. At the same time, his story is not only emblematic but individual, the story of the shaping of the moral intelligence of a lawyer and a judge, not through long inculcation in the values of a stable society but through the fires of a lifetime s opposition to a society s injustice. In understanding Arthur Chaskalson, we understand better the roles lawyers can play in social change and the achievement of a just social order, while we see more clearly the interplay of upbringing, experience and character that shapes a person first into a cause lawyer and then into a path-breaking, and foundation-laying, judge.
In telling this story, I am telling the story of a man who was a friend and a mentor to me - and someone whom I admired very much. Readers will find that I appear in this book from time to time, I hope in ways that help to present Arthur s story rather than diverting attention from it. We met in late 1987, the fall semester in the United States, when we co-taught a seminar on Legal Responses to Apartheid at Columbia Law School. This was the second time I had co-taught the course; the first time was also a special opportunity for me, as I worked with Dikgang Moseneke and Sydney and Felicia Kentridge. Teaching with Arthur was exciting and challenging, and so was the trip I made to South Africa at Arthur s invitation in mid-1988 (Columbia s summer vacation, South Africa s mid-winter). Then and on later trips, with Arthur s help, I got to know some of the outstanding people, many of them lawyers, who were, like Arthur, working within South Africa to challenge the system of apartheid. I had done somewhat similar work as a public interest lawyer at the Southern Poverty Law Center in Alabama - but in Alabama we had a constitution on our side, and did not face the implacable opposition of a reactionary government s security apparatus. So I understood, broadly, what Arthur and his colleagues were doing, and how hard it was to do, and how important. Those connections long ago, before the end of apartheid, led me to a lifelong scholarly interest in South African law, to lasting ties with a number of South Africans (who also make appearances in this book), and to a friendship with Arthur that continued until he passed away in 2012. I am grateful that his family invited me to tell his story.
This is a South African story, and an important one. The victory of the South African people over apartheid is now receding into memory, or oblivion, as an entire generation of South Africans has been born since the end of that evil regime. What happened in that struggle needs to be remembered. That South African law was part of apartheid is undeniable - and Arthur Chaskalson would have been the last to deny it. That some South African lawyers, Arthur prominent among them, and some South African judges managed to use South African law as a weapon with which to undercut apartheid and to protect clients and litigants in great need is equally important, and gives us a sense - one we should not be quick to surrender - of the potentials of law. Lawyers have been active on behalf of human rights in many unsympathetic settings, and Arthur s experience offers a striking reminder that these struggles may not be quixotic; instead they may contribute to victory, in the form of short-term courtroom success and long-term national revival.
Certainly these efforts by lawyers were far from a substitute for political challenge or the development of a liberation movement, but there was no contradiction between protecting human rights and assisting the anti-apartheid struggle. Many of Arthur s cases, including his representation of Nelson Mandela in the Rivonia trial of 1963-4, were fought on behalf of leaders of those struggles. Others, notably cases Arthur brought for the Legal Resources Centre, the premier public interest law firm he co-founded in 1978-9 and then led for many years, managed to undercut important legal pillars of apartheid, such as the exclusion of blacks from metropolitan areas through influx control and the forced removal of black communities from supposedly white areas. At the same time these legal efforts helped keep alive for South Africans living under apartheid the idea of a just rule of law, protecting human rights, an ideal that had never altogether disappeared from view and that might one day prevail. This foundation became the basis for the post-apartheid nation that would - to the world s surprise - become a reality in 1994. Both constitutional negotiators (among whom Arthur played a prominent role) and then constitutional judges (led by Arthur, as the first President, then the Chief Justice, of the newly created Constitutional Court) devoted themselves to building on it as apartheid ended and democracy began. Despite their efforts, South Africa, having emerged from the long ordeal of apar