Obituary: Arthur Chaskalson; South African lawyer who defended Mandela and opposed injustice until his final days

With the death of Arthur Chaskalson after a long battle against leukaemia, South Africa has lost one of its most important guardians of human rights and one of the last members of the ageing generation closely associated with Nelson Mandela and his struggle against race discrimination.

Chaskalson, born into a middle-class Johannesburg Jewish family, is most renowned for his role as a young lawyer in the defence of Mandela against the apartheid state at the 1963 Rivonia Trial. Mandela and nine other leaders of the outlawed African National Congress were charged with 221 instances of sabotage designed to overthrow the apartheid system. The prosecution called for death by hanging.

Chaskalson was later one of the architects of the country’s liberal post-apartheid constitution and the first president of the all-important Constitutional Court before becoming Chief Justice and later a judge at the International Criminal Tribunal for the former Yugoslavia.

But one of his most important contributions to the defence of human rights in South Africa may have been made in his final speech before his death in which he attacked a raft of proposed laws by President Jacob Zuma which Chaskalson said would undermine human rights and the rule of law.

Speaking to a packed audience of the Cape Law Society in Kimberley on 9 November, he said the content of proposed ANC government bills, including the Legal Practice Bill, opens the door “to important aspects being controlled by the executive” and that this was not only in conflict with international legal standards but was “inconsistent with an independent legal profession”.

He added: “We cannot foresee the future. It is important that we should protect the checks and balances we have, so that they are there should they be needed in the future to protect our democracy.”

Chaskalson’s other recent public speeches were, according to South Africa’s leading legal affairs commentator Carmel Rickard, “also pointedly directed at the government’s controversial draft laws and policies that he worried could erode the hard-won protections embodied in the Constitution and the Bill of Rights”. Rickard continued: “We will have only ourselves to blame when the fears he so clearly articulated are proved true, and the powerful political elite tramples on the rights of the people that Chaskalson struggled so long and so hard to protect.”

Chaskalson left school aged only 17 and graduated with two degrees at the age of 23 from Johannesburg’s University of the Witwatersrand, in 1954. He was an outstanding footballer, playing for his university and the combined South African universities team. He was called to the Johannesburg bar in May 1956 and quickly built up an outstandingly successful legal practice.

However, he also felt it his duty as a rich lawyer to undertake the defence of people who would otherwise have gone undefended. He had been particularly struck by a passage in Albert Camus’s Notebooks, which read: “For thousands of years the world has been like those Italian paintings of the Renaissance where, on cold flagstones, men are tortured while other men look away in the most perfect unconcern. The number of the ‘uninterested’ was immense compared to the interested. What characterised history was the number of people who were not interested in other people’s misfortunes.”

In 1963, his principles were put to a severe test when he was asked to join a team of advocates to mount the defence at the Rivonia Trial. Chaskalson convinced senior advocate, Braam Fischer, that his status as an Afrikaner made him the best possible candidate to lead the defence team, despite Fischer’s initial reticence because of his secret involvement in the banned South African Communist Party. Chaskalson said that no one else at the bar could tell Judge Qercus de Wet, Fischer’s fellow Afrikaner, and the world at large, that Mandela and others in the dock had done nothing different than what the Afrikaners did during the 1899-1902 Boer War against the British. Fischer was duly persuaded to lead the defence.

Fischer’s membership of the Communist Party was later discovered and he was jailed for life for furthering the aims of communism and conspiracy to overthrow the government.

In prison, Fischer contracted cancer and died in 1975. Chaskalson defended Fischer at his 1965 trial. Ironically, Chaskalson himself was a member of the underground South African Communist Party, and if this had been known at the time of either the Rivonia Trial or Fischer’s trial, he also would have been in the dock and not on the defence lawyers’ benches.

During Fischer’s incarceration in Pretoria Central Prison, Chaskalson looked after all Fischer’s books. His daughters later told how Chaskalson continued to subscribe to law journals in Fischer’s name and would dutifully inscribe them with their father’s name up until the year Fischer died.

Chaskalson gave the oration at Fischer’s funeral, despite knowing that it would earn him the suspicion of the security forces. Asked recently why he had joined the Communist Party, he said: “Under the apartheid system, it showed I was on the right side.”

As Mandela and his fellow defendants prepared themselves in 1963 for execution, Chaskalson played a key role in ensuring that they received the lesser sentence of life imprisonment. In his book on the case, The State v. Nelson Mandela: The Trial That Changed South Africa, Joel Joffe, another young defence team lawyer, explains that Chaskalson was the first to give final arguments. “Suddenly the Court was no longer a forum for third-rate amateur theatrics, but became a court of law,” he wrote. Chaskalson’s arguments put paid to a substantial portion of the state’s case.

In 1978 Chaskalson gave up his lucrative legal practice to take up the modestly salaried post of director of the Legal  Resources Centre, dedicated to the defence of the poor, the marginalised and victims of apartheid, inevitably most of them black. By the time Chaskalson stepped down from the Centre in 1993, it had 63 advocates and attorneys and was widely regarded as one of the world’s best public interest law organisations.

Chaskalson, self-effacing and very private, was bound for even more important work: leading the group of jurists who made up South Africa’s first Constitutional Court meeting in October 1994.

The day after the Court was formally opened, the 11 green-robed judges heard their first case. Their first ruling was on the unconstitutionality of the death penalty, and they went on to rule on a host of other vital  issues, including the recognition of same-sex marriages and the right – still many decades away from fulfilment – of all South  Africans to a roof over their head.

From 2001 to 2005, Chaskalson served as chief justice before joining the International Criminal Tribunal for the former Yugoslavia. He received many honours and continued to speak out against Zuma’s plans to curb the media and undermine the supreme authority of the Constitutional Court. He also spoke out forcefully against Israel’s  actions towards the Palestinians, describing them as “inhumane and disproportionate”.

He is survived by his wife, Dr Lorraine Chaskalson, and their two sons, Matthew and Jerome.

FRED BRIDGLAND