Adv. P Mtshaulana, Chairperson of the General Council of the Bar;
Mr Justice D Moseneke, Deputy Chief Justice;
Mr Justice L Mpati, President of the Supreme Court of Appeal;
Mr Justice A Chaskalson, former Chief Justice;
Mr Justice J Lyons, Maseru High Court;
Judges President and all judges present;
Councillors and members of the profession present;
Ms Ruth Rice and Ilse Wilson and Adv. George Bizos;
Ladies and gentlemen;
Comrades and friends;
Programme Director, I would like to start on a personal note by saying that I find it very difficult fully to describe the depth of the honour I feel at being asked to speak at an event in honour of Bram Fischer and, vicariously so, also Sydney Kentridge.
When, as a first year law student at the University of Pretoria, in the mid-nineteen eighties, during the state of emergency, I was asked by a fellow student why I had chosen to study law, I replied citing Bram Fischer and Sydney Kentridge as role models for the kind of lawyer I wanted to be - lawyers dedicated not only to excellence in the practice of law but also to commitment in the practice of justice.
In this, I am sure that I speak, not only for myself, but for many of my generation, and also subsequent generations of lawyers, some of whom are part of this gathering tonight.
I am immensely humbled by the honour to speak about Bram Fischer after, and in the presence of, giants such as former Chief Justice Arthur Chaskalson, who walked the difficult path of struggle with Bram Fischer; and also to do so in the presence of his daughters, Ilse and Ruth, courageous fighters for democracy and social justice in their own right.
I would like to convey the best wishes of the Minister of Justice and Constitutional Development, Min. Jeff Radebe. He has asked me to convey his warm greetings, his apologies but also his assurance that t is in furtherance of the ideals that Bram Fischer stood for that he cannot not be here tonight.
The life and struggle of Bram Fischer brings to mind the words used by the Nobel Laureate Nadine Gordimer to describe her best friend, Bettie du Toit, also a close comrade of Bram Fischer. She describes her as, "[o]ne of those ... who surmounted the prejudices of their frontier background and entered the kingdom of a broad humanity."
In his upbringing, Bram Fischer considered himself an Afrikaner and pursued Afrikaner Nationalism, until his personal experiences changed the course of his life into a communist and a champion for a non-racial democratic dispensation. Indeed, many have good reason to believe Bram Fischer had a potentially bright political career, had he kept to the tracks of typical Afrikaner ascendancy to power, more so considering his family background.
For many young white activists, Afrikaners in particular, who were involved in the struggle for democracy there was no better example than Bram Fischer to challenge us to oppose apartheid and, having taken the decision to do so, to give us courage and to reinforce us in our conviction that we had taken the correct decision.
The reasons why Bram Fischer broke so decisively with white privilege, and the easy road to power that he could have enjoyed, were both complex and simple: Complex in his scholarly and meticulous argumentation of why apartheid legislation was legally flawed, and yet so simple in the basic principles of an unwavering commitment to equality and justice that informed all his thinking and way of life.
Once he committed himself to these principles it was the measure of the man that he could do nothing other than to oppose apartheid. He did so at great cost to himself and his family, but he always – even in the darkest days of his imprisonment – kept his faith that a better and more just future will dawn.
After having been given a draconian life sentence which, in the hateful words of Jimmy Kruger, was to be enforced, ‘until his last breath’, Bram Fischer was never a broken prisoner of apartheid, no, he remained throughout a triumphant prisoner of hope.
It was in the manner that he lived his life outside, as well as inside prison, that also teaches and continues to challenge all of us today.
Former President Nelson Mandela outlined some of these challenges at the launch of the Bram Fischer Memorial Trust at Grey College, in Bloemfontein on 28 November 1997, at the dawn of our democracy, when he said:
"Now that we have won the freedom and the democracy for which Bram Fischer gave so much, South Africans are no longer confronted by such deeply painful and costly decisions.
"We have a constitution, as the fundamental law of our land, which entrenches our people's democratic ideals, and we have institutions to ensure that our legal system does not deviate from the principles of justice.
"All of us are now free to think of ourselves as South Africans and members of a particular community without any tension or conflict; part of a nation that is strong and united in its diversity.
"And yet it would be wrong to think that there will no longer be difficult choices to make, though thankfully they will not be painful or dangerous. The road to a just, prosperous and equitable society will take many years to travel. Democracy has brought us the chance to address the legacy of our unjust and divided past.
"Great progress has been made in reconciling those who were once in conflict, and the Free State has set a shining example in this regard. The basic amenities of life are beginning to become accessible to the majority to whom they were denied.
"But we have only made a start. Our hard-won rights will remain empty shells, and our democracy fragile, if they do not bring real improvements in the daily lives of all our people.
"Oor die afgelope drie jaar het ons die grondslae gele vir daardie verbetering in lewensgehalte; om nou suksesvol daarop voort te bou, sal 'n volgehoue poging van - en vennootskap tussen - die sektore van ons samelewing vereis. En dit sal oor baie jare volgehou moet word."
["Over the past three years we have laid the foundation for that improvement in the quality of life, to continue successfully on this path, will require a sustained effort from - and partnership - between all sectors of our society. And it will have to be sustained over many years. "]
It will also require a concerted effort to transform our legal system. We are all mindful that Duma Nokwe, Griffiths and Victoria Mxenge, Oliver Tambo, among others, had to overcome barriers and endured the hardships perpetuated by the policies of the Government of the day to practice a profession which at the time was out of reach for the disenfranchised majority. For many the pursuit of social justice was the only motivation for entering the profession.
This is a legacy that Government seeks to nurture. Access to justice must not be the preserve of the rich and elite. We must ensure equal protection and benefit of the law for all our citizens. The legislative and other programmes of Government aim to achieve these objectives. The Constitution Amendment Bill, the Superior Courts Bill and the Legal Practice Bill currently in the making, are intended to improve the efficiency of the administration of justice and enhance access to justice. We are grateful for the invaluable inputs and contribution by the profession on both Bills and look forward to the finalisation of these vital pieces of legislation in the not too distant future.
I would not be doing justice if I omit to mention the Small Claims Courts which are an important vehicle through which the profession can perform pro bono work. We express our profound gratitude to those practitioners who serve as Commissioners of Small Claims Courts on a voluntary basis without remuneration. I would like to encourage Council to appeal to more of its members to follow in Bram Fischer’s selflessness and patriotic steps.
I would imagine that the expectation of many in the profession is that the allocation of government legal work or briefing patterns as it were must receive the same prominence as the call for increased pro bono work. We can assure the profession that we have started to make inroads in this area through an equitable legal work distribution of 65% work to previously disadvantaged sectors of the profession as was announced by Minister Radebe in May this year. We are in a process of developing a tool to monitor the impact of this intervention on a national basis to ensure that our interventions yield the intended outcomes.
Nelson Mandela also said in tribute to Bram and Molly Fischer on the occasion of the First Bram Fischer Memorial Lecture convened by the Legal Resources Centre in 1996, that:
“Bram's commitment to the struggle helped to change many of us in the ANC from being Africanists to believers in a non-racial democracy. The declaration in the Freedom Charter of 1955 that South Africa belongs to all, both black and white, was inspired by many people of all races who had identified themselves with our struggle. Amongst them none were held in higher esteem than Bram and Molly Fischer.”
We therefore welcome the decision of the General Council of the Bar to recognise this stalwart of our struggle with the Sydney and Felicia Kentridge Award. This represents another step in healing the wounds and righting the injustices of the past.
It is shameful that, despite the fact that, before his arrest, Bram Fischer had been the longest serving member of the Johannesburg Bar Council, and had served a term as its Chairperson, his colleagues applied for him to be struck off the roll of advocates in 1965 for conduct, "unbefitting a member of the Bar and the Society" after he skipped bail during his trial on charges of contravening the Suppression of Communism Act.
This application was opposed on his behalf by Advocates Sydney Kentridge and Arthur Chaskalson. It is fitting then that tonight, an award bearing the name of Sir Sydney Kentridge is handed over to his family by former Chief Justice Arthur Chaskalson.
At the time, Bram Fischer argued that, "When an advocate does what I have done, his conduct is not determined by any disrespect for the law nor because he hopes to benefit personally by any 'offence' he may commit. On the contrary, it requires an act of will to overcome his deeply rooted respect of legality, and he takes the step only when he feels that, whatever the consequences to himself, his political conscience no longer permits him to do otherwise. He does it not because of a desire to be immoral, but because to act otherwise would, for him, be immoral."
In 2003 Bram Fischer became the first South African ever to be posthumously reinstated to the Bar in terms of the Reinstatement of Enrolment of Deceased Legal Practitioners Act.
His reinstatement represented a victory for justice and a tribute to a South African patriot who sacrificed so much in the struggle for democracy. The ruling reversed one of the many shameful episodes in the history of South Africa's legal fraternity, an episode that demonstrated how far the practice of law was removed from the practice of justice.
As we celebrate the lives of stalwarts such as the colossus Bram Fischer, we do so hoping that doing so will lead us, and others, in which ever sector of society we find ourselves, to emulate their stewardship of the virtues of truth, sacrifice, justice and selfless service to their fellow human beings.
Sydney Kentridge, a member Order of the Baobab in Gold, has been celebrated as one of the most brilliant advocates of all generations at the Bar. He went from being a soldier in the Second World War to being a fighter at the Johannesburg Bar in 1949 where his early victory on behalf of the trade unionist Solly Sachs laid the path for work on behalf of many anti-apartheid activists.
He was a member of the team headed by Issie Maisels and Bram Fischer to defend the leaders of the Congress Alliance in the Treason Trial where he led Madiba's evidence in the trial.
In his biography of Nelson Mandela, Anthony Sampson wrote: 'Kentridge's unassuming style concealed a relentless rationality; it would take him to the top of his profession in both South Africa and Britain, and he would become famous when he extracted the full horrors of Steve Biko's torture and death from police witnesses at the inquest.'
His influence on the law and justice in South Africa went much further including through his involvement in the structures of the organised profession.
While acknowledged as a giant, the significance of his partnership with Felicia Kentridge has always loomed even larger for all who know them. He married Felicia in 1952. She recognised the paradox that confronted the judicial system: namely that, for the most part, the apartheid courts asserted that they did not heed instructions from the government and took the common law framework seriously.
Her passion for justice, her creativity and unflagging energy led her to propose the establishment of the first public interest law centre, the Legal Resources Centre - which opened its doors in 1979.
The results were far beyond what the founders had expected. The LRC undertook highly successful and path-breaking litigation dealing with pass laws, forced removals and evictions, detention without trial, police brutality, fair labour practices, amongst others.
As one of the two “moving spirits” in the Centre (the other being the former Chief Justice, Arthur Chaskalson), Felicia Kentridge made a huge contribution to the promotion of access to justice for people from poor and marginalized communities and helped to establish the LRC as a driving force for human rights protection and in defending the independence of the courts and the legal process from executive power. In seeking to use the law strategically and fight cases whose consequences affect the lives of thousands of people, Felicia promoted use of the law as an instrument for transformation.
In the early 1990s, when Felicia was still closely involved, the LRC also contributed significantly to the establishment of the legal framework for a democratic South Africa and in the drafting of the new Constitution and Bill of Rights.
In is deeply moving then, that tonight, the ties of solidarity and struggle that connected the lives of Sydney and Felicia Kentridge with those of Bram and Molly Fischer, bring them together again - this time in defiance of the unjust laws of nature that divide the living and the dead.
Bram Fischer would undoubtedly have been proud to receive this award, bearing the names of his friends and comrades in the struggle for justice and human dignity, acknowledging as it does the partnership, friendship and unity of purpose of three great and committed lawyers and human beings.
Bram Fischer would also, no doubt, have regarded the bestowing of this award as incomplete without a concomitant commitment on the part of those conferring it, to do everything in their power to promote access to justice for all, to realise the vision of our Constitution of justice and human dignity, to be part of the, "volgehoue poging van - en vennootskap tussen - die sektore van ons samelewing", that Nelson Mandela spoke of in his tribute to Bram Fischer. In short, he would have wanted a commitment from all of us join hands in the struggle to create a society in which all may enter the kingdom of a broad and common humanity.
I thank you!
Speech by Mr Andries Nel, MP, Deputy Minister of Justice and Constitutional Development, on the occasion of the Awarding of the Sydney and Felicia Kentridge Award to the late Bram Fischer, at a formal dinner convened by the General Council of the Bar, Blo
