Justice in South Africa

I've often wondered why, from an intellectual point of view, I got so much pleasure out of working on my PhD, ending up with the book Justice in South Africa. And I think the answer was given indirectly by Jean Paul Sartre, who was taken to watch a football game. He'd never been to one in his life, and he said, ‘It's lovely, you kick a ball around, but there's only one problem with soccer, you've got an opposition.’ And I think I loved working on my PhD, because it's almost the only time when I wasn't striving against an opposition. I didn't have to pass any exams, all I had to do was defend, and it was just carving out sectors of knowledge, making discoveries, and putting it all together in interesting and accessible ways, with a bit of fun and a bit of surprise. At that stage in my life, as far as law was concerned, I had two major guiding criteria: One, I wanted to get out of law, and two, I didn't want to write another exam in my life, have all that stress of the exam, the worry, Will I get a decent mark? Will I pass the exam? So, the PhD gave me time to deal with living in England, getting some support, producing something useful out of that, and I can discover what else I can be in life.

You don't have to be just one thing in life, and I wouldn't have to write an exam; Sussex University, in a way, was perfect for me. And the people recruited there were people with fresh thinking, dynamic and new, not steeped in heavy tradition, not scholars removed from anything that has anything to do with ordinary life, but people who immerse themselves in ordinary life, in politics, in depth psychology, in the stresses of public life and the internal stresses that human beings have had as individuals. And in the turmoil in my head and my heart and my mind, and the solitary confinement, and the sleep deprivation, and the struggle, and people dying and being killed, it was wonderful to have an area of relative calm where I'm working with sources to be found mainly in libraries, where I can accumulate information in a fairly random way that all had a bearing on this strange creature–the South African judiciary–this creature that I'd lived with and worked with, and been involved with, and written on top of, and been written by.

What were its origins? How did it develop the culture–that strange, mixed, totally, utterly contradictory culture that it had; being responsible for a hundred people being hanged every year; tens of thousands being whipped by judicial order; tens of thousands of juveniles being caned by judicial order; people forcibly removed from their homes in response to a state order, upheld by the judiciary, however arbitrary, unjust and inhuman it was. And at the same time, you could argue cases, you could get acquittals, you could expose torture sometimes, and you could get degrees of kindliness and humanity on the bench that you couldn't get almost anywhere else in official South African society. It was a real puzzle; the mixed origins and contradictory character of the courts as an instrument of colonial domination and colonial legitimation, on the one hand, but also an instrument that people could use to at least soften the impact of colonial, racist, apartheid domination. So, it was an interesting challenge, an intellectually interesting project, and something that could be useful for the struggle. Everything had to be for the struggle.

It was very clear from the beginning; I was on my own. I had to have supervisors. The one supervisor at Sussex was Colonel GIAD Draper, who'd been a prosecutor at Nuremberg, part of the British military–and they didn't have a law school then–but I think he dealt with questions of international law. He said, ‘Mr Sachs, I offer you only one piece of advice: A good book makes a bad thesis, and a good thesis makes a bad book. Please remember that.’ And I said, ‘I will remember that, thank you for the advice, Colonel Draper.’ And I defied him from the beginning. I couldn't see why a good thesis should be unreadable and boring, and I couldn't see why a good book shouldn't be scientific and evidence based. So, I pretended to go along with him, and I brought him chapter, by chapter, by chapter. They remained unread on his desk. The pile got higher, and higher, and higher. He told me most wonderful, extraordinary stories about his time at Nuremberg. I wish I'd recorded them. I wish I could even remember them. I just remember his voice, and that piece of advice that he gave me–the only piece of advice he gave me–advice which I ignored totally, utterly, 100%.

My second supervisor was Professor Norman Cohn, and he'd been in the British Army as well. He'd become very involved in the world of psychoanalysis, and his puzzle was to understand: How could millions of German speaking people blindly follow Hitler? What's going on there? So, the book he wrote was called Pursuit of the Millennium and became quite famous for a number of years. And at a time when the catastrophe of the war, the madness and the unimaginable cruelty of the genocide left people wondering how ordinary social science can't provide explanations of what's going on, we have to look at something in the psyches of people. He had set up a center for the study of persecution at Sussex University. And he said the South African experience didn't fit very neatly, but it does deal with organised persecution, and the motivation of it. And he said, ‘*Albie, you know what you want to do. You go ahead and do it.’ *

I loved going to seminars. English seminars in those days, maybe even today, were something of a kind. The worst physical arrangements you could imagine in terms of comfort and beauty, but the discussions were open-ended and, I took a decision very early on that I lay my cards on the table. At that stage, many people would make discoveries and hide their sources. I’d found something special, and it was going to get me my PhD. And I'm glad I took that decision as one consequence was people would offer me materials that they picked up in their research that were useful for me, but the most important thing was it enabled me to write down my ideas in a chapter dealing with a particular theme, and then get ten, twelve, fifteen people, none of them necessarily interested in South Africa or the judiciary in South Africa, but all smart intellectuals doing their PhDs and masters saying ‘I don't get the logic of it’ or, ‘This looks a bit far-fetched’ or, ‘That's unclear’ or, ‘Why don't you go to the library there, you'll find something else.’

It was a collective way of working where we all contributed to each other, and it fitted in, strangely enough, very well with our struggle ethos, our comradeship of sharing on the basis of equality; not that we all have the same knowledge, and the same information, and the same education experience, but we all had the same right to offer an opinion, and you wanted the work to be as interesting to an outsider as it would be to an insider. It wasn't just for people like you interested in that particular topic. And I would imagine that certainly all the historical chapters in my book would have gone to seminars of that kind, and it also brought me to different universities, meeting different people.

Now the sources; it wasn't like scientifically worked out or planned. I would go to a library. I would discover the Cape Law Journal. This is now in the 1960s, and I would just go from page one to the end, looking for anything that touched on the judiciary and race. I ended up with maybe ten, twelve files with different materials in them that I could use. And I was particularly interested in quotable, piquant, spicy statements that were made in different times and that carried a bit of energy with them; flavour interesting to the reader but also telling you a bit about the time. And I felt if they could write like that, then I can also put in a little bit of pepper and salt, a little bit of sparkle. Why should a thesis be boring and difficult to read?

And I did research that lawyers just didn't do in South Africa then – nothing on capital punishment in South Africa, the patterns of it, the numbers involved, the rationale given; nothing on the use of the law for forced removals, the pass laws; no statistics about how the law was being used to chain people up to prevent their movements, to dominate, to beat them; not even mentioned. So now I'm filling in material about the 1910s, I'm getting annual reports from Parliament, from the Ministry of Justice, shocking information, and seeing patterns all the way through. And then the theme on African attitudes to the law; very ambivalent. They could sometimes get some support, some defence, some voice in the courts that they couldn't get anywhere else in public life. And there were a few lawyers who sided with the African people and people of colour; who stood out as individuals. And then there were Gandhi, and Mandela, and Tambo. And I discovered Alfred Mangena and other professors, like ZK Matthews, and their stories needed to be part of the record.

So, I'm putting all of that in, none of which I had anticipated. And then a very interesting thing I noticed when I was sent to the Royal Commonwealth Society which had been the Royal Colonial Society and had a library that went deep into the ground. I would go down, and I'd open a book that I felt hadn't been opened for sixty, seventy years, and I would have this kind of fantasy that nobody would know I was there because they’re five stories up, and they'd lock me up and I wouldn't be discovered for another fifty years, where somebody would come and see my bones lying there at an open page dealing with something from the 1870s. And one of the things I noticed was that the attitude towards black African people in the 1870s in the Royal Colonial Society was far more paternalistic, but protective, than it was round about the 1890s. What's going on here? You'd think there'd be more enlightenment rather than less. And of course, it is the discovery of gold and diamonds. Industrialisation and race relations got worse with industrialisation. Capitalism developed the migrant labour system. Cheap labour and a dehumanisation of African people much greater than had been present before. And I was able to track that through the statements made in the annual reports of the Royal Colonial Society. So, it became a source of great, rich discoveries for me.

And interesting following through to the current day, and right at the end, I had to decide, now what's my last word? And I'm thinking: Is the judicial system so embedded in apartheid oppression, so complicit that all it does is legitimise something inherently evil that you’ve got to denounce it systemically and totally acknowledge the one or two decent judges as a matter of fact? Or should it be seen as part and parcel of South African society, where there are some individuals of conscience who could play an important role? And I decided to go for the latter.

And I wasn’t so much looking to the future. I was thinking now there's somebody like Michael Corbett, who had fought against Hitler in World War II, who had sentenced my comrade in the underground; Fred Carneson, charged with treason and sabotage act, to five years imprisonment, when others would have given him fifteen, and who I think had stopped the intensive interrogation to which I'd been subjected; and there were other people like him. Let them feel they're not totally lost, they're not totally abandoned, that maybe they can save a few lives even now, and they can, in a way, make a contribution. So, my last statement was: Not only must justice be seen to be done, it must be done, full stop, the end.