TRANSCRIPT: WHAT HAPPENED TO YOU?
I’m still a student. I’m in my first year of the LLB at the University of Cape Town in ‘55 and I go to the Congress of the People. And later that year I’m banned; I get my first banning order. And in the way things are done in South Africa, the newspaper headline is, ‘First White Student To Receive Banning Order’. They even classified the people who got banning orders according to race, you know, in the Cape Times.
I was called in by T.B Davie, the principal of the University of Cape Town. I’m quite nervous, what’s he going to do? He said, ‘I was just curious to see who the student was. Any support I can give you, we will do everything we can to enable you to carry on with your classes to write the exams.’ More or less saying, good luck to you, you know. It was a good moment for me. Not all the University of Cape Town principals were as principled as he was. It meant I couldn’t attend gatherings. So, I couldn’t carry on with my Modern Youth Society activities anymore. But the Communist Party was underground anyhow, and it cut out a huge amount of meetings but it didn’t stop my political activities.
In 1956 I graduate. I’d been what was called a brilliant student in my first year. I got the medal for English. It was unheard of for a law student to get the medal for English. That went to the English Honours students. But I loved it. My second year I passed, and the English teacher said, ‘What happened to you?’ And I couldn’t say what happened to me was the struggle. But my passion just went elsewhere. But I got through without repeating any exams.
I was looking for chambers. It was very difficult for advocates to find chambers – an office – near the court. But Lionel Forman was one of those arrested, flown up to Joburg as part of the Treason Trial. We arranged very quickly that I would take over his chambers until he could come back. And I took over his old office furniture. He knew he was going to be arrested so he had really crappy old furniture. And he had a very bad heart so he’d have a bed that he could lie on – a couch. But the couch was very useful when we had a big crowd coming from the townships. Like ten people could sit on that couch. People would call it ‘an Albie Sachs consultation’. But the people were so eager to understand, to listen, to have the law explained to them. It was also very much part of my education, discovering how deep in African society the idea of legal reasoning was from a completely different sort of culture to the culture I’d grown up in. And how attentive people were. And half my practise was devoted to defending people charged under racist statutes, for trade union activity, for breaking banning orders. And the other half would be everything from divorce, commercial, crime. I think I had about 35 cases with potential capital punishment.
And you know I loved being an advocate. Walking down the corridor of the Supreme Court, it was called Cape of Good Hope Division, gown flying behind, thinking, strategising, cross examining, arguing, appeals, the law, being intelligent, persuading, exposing police witnesses who were lying and manufacturing stuff, breaking them down. And part of me loathed it. The courts were so racist. Even if you had a dignified, decent judge sitting on the bench, and we had one or two judges, Herbstein was one. He hated capital punishment. He hated apartheid, he never sentenced anybody to death. If you could give him a reason for overturning regulations that were discriminatory, he would find good justification for it. But the court was racist. The judge now is speaking, two witnesses, white woman, ‘Mrs Smith, would you mind telling us what you saw?’ And then an African woman, ‘Rosie, what did you see?’ Now if I call her Rosie, I can’t call her Rosie, she’s old enough to be my mother. But if I call her Mrs Tshabalala and the judge has called her Rosie, it’s like I’m taking issue with him. My client might suffer. You’re doing mental gymnastics all the time to retain something of your dignity and the dignity of the witnesses and the accused.
It was not just the pretence of rule of law. In many respects, there was the rule of law. But it was rule by law. Not rule of law. Rule by law. And the law went in for massive oppression. I spent a lot of my time going to what was called the Native Administration Court in Langa. More people I think passed through that court than all the other courts together – for not having their passes in order, for trading without a licence. I was the only advocate at the bar in Cape Town that even knew where that court was. And it was a sausage machine.
And all that was happening a few miles away from another court where you could get a good hearing, sometimes from a decent judge, sometimes even from a racist, reactionary judge, but a polite hearing, legitimising the apartheid system, enforcing the apartheid system in many ways and yet giving you instruments for sometimes undermining and blocking the apartheid system.
The worst case I had was in Queenstown, where the people had pleaded with me to come up there. Eleven African men were being threatened with the death sentence. They had protested against the local headman, corrupt. They’d go away, he would interfere with their wives. They protested to the magistrate; they went five times to the magistrate. He refused to do anything. The sixth time they went, they told his family to get out, they killed him, they burned the house. And eleven were identified, by the wife who had fled because they’d saved her life. And they’re all now threatened with the death sentence. And I’m asked by the people who are migrant workers in Cape Town to go up there. And I said, ‘it’s better you have a local person who knows the judges, who can speak. But I’ll go at least at the beginning’. In the end only three of them were sentenced to death. That was like a victory. And I felt if ever there was injustice that was a terrible, terrible, terrible example of injustice. And that was painful and there was nothing conflictual about it. It was just plain awful and terrible.
I had one case…You’re supposed to take any case that comes to you and there were some attorneys brought me work. They were looking for work for me. They knew my politics. And they said, it’s a guy involved in a fight - two guys, young people involved in a fight. And it turned out two young white guys had bumped into an African guy in a subway near Observatory Station, they’d beaten him up. I’ve agreed to take the case. So, I spoke to them and their parents, and I said, ‘It seems you did what you’re accused of, the evidence is strong. Acknowledge what you did. I will do my best to save you from being sent to jail and from being given corporal punishment. And it will help if you can make a payment, not as a bribe but acknowledging that what you did was incorrect.’ The complainant comes to court, he’s expecting to be torn to bits. He can’t believe it. They’re acknowledging. That’s what he wanted. He wanted their acknowledgement that they beat him up and the court orders that he receives some kind of compensation for it. He was absolutely delighted. And I felt relieved that I was able, even in that terrible case, to find a way forward that wasn’t incompatible with my values.
In all my years as an advocate, I was very correct to obey all the bar rules. I never told my clients manufactured stories. I never interfered with witnesses. The only law that I broke the rule was ‘thou shalt accept a fee for all cases’. And I’d asked Lionel Forman, what discount did he give for political cases. He said, ‘Albie, I don’t take any money for political cases. The people are being charged for resisting apartheid; I’m contributing what I can.’ And in all political cases I refused to accept any money. And a good half of my work was work that I didn’t take any money for. And it included defending literally hundreds of Pan African Congress people in the Cape – a bit ironical. Their own PAC lawyers wouldn’t defend them unless they were paid upfront. And I would be defending them without receiving any payment. But I was defending them not because they were attacking the ANC but because they were challenging apartheid. They were patriots, and it was awful to see them being sent off to jail literally in their hundreds.
The law was for me imposed, overwhelmingly hateful. But with themes that could be used to defend people’s rights. And we had to use them. And some people said the decent judges should resign. And we said ‘No, we want them there, it can save lives! We can expose torture. We got to fight on every front possible.’
