And Justice For All: Arthur Chaskalson and the Struggle for Equality in South Africa

By Stephen Ellmann

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 Chaskalson’s 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.

• Language: English
• Publisher: NewSouth Books
• Release date: Jul 15, 2020
• ISBN: 9781588384362

Stephen Ellmann

An award-winning author on legal ethics and an expert in clinical legal education, constitutional law, and South African law, STEPHEN ELLMANN (1951-2019) also pursued his deep interest in legal education through his work as New York Law Schools' Director of Clinical and Experiential Learning. As a staff attorney at the Southern Poverty Law Center in Montgomery, Alabama from 1977–1983, his practice included institutional reform litigation for mentally disabled people and prison inmates, voting rights cases, anti-Ku Klux Klan suits, and defense work in capital murder trials. While in Montgomery, Professor Ellmann began a long career in legal education by teaching courses on constitutional law and federal courts.

Book preview

IN MEMORY OF

ARTHUR CHASKALSON

24 NOVEMBER 1931 TO 1 DECEMBER 2012

AND

STEPHEN ELLMANN

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.

PUBLISHER CATALOGING-IN-PUBLICATION DATA

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

AT NEWSOUTH BOOKS:

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.

AT PICADOR AFRICA:

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

CHAPTER ONE: Family

CHAPTER TWO: Preparing for Practice

CHAPTER THREE: Finding his Course

CHAPTER FOUR: Early Political Cases

CHAPTER FIVE: Romance

CHAPTER SIX: Rivonia: The Defence Team and its Work

CHAPTER SEVEN: The Rivonia Accused Make their Case

CHAPTER EIGHT: Rivonia’s Aftermath

CHAPTER NINE: After Rivonia: Arthur’s Practice

CHAPTER TEN: At Home

CHAPTER ELEVEN: Founding and Leading the Legal Resources Centre

CHAPTER TWELVE: The Work of the Legal Resources Centre

CHAPTER THIRTEEN: Lawyering beyond the LRC – and the Delmas Treason Trial

PHOTO SECTION

CHAPTER FOURTEEN: In (and near) Academia

CHAPTER FIFTEEN: Negotiations Begin

CHAPTER SIXTEEN: Shaping South Africa’s Constitution

CHAPTER SEVENTEEN: Forming the Constitutional Court

CHAPTER EIGHTEEN: Leading the Constitutional Court and the Judiciary

CHAPTER NINETEEN: Jurisprudence: Establishing the Court’s Constitutional Authority

CHAPTER TWENTY: Jurisprudence: Regulating Power

CHAPTER TWENTY-ONE: Jurisprudence: The Protection of Rights

CHAPTER TWENTY-TWO: Jurisprudence: The Process of Transformation – and Saying Goodbye

CHAPTER TWENTY-THREE: After ‘Retirement’

CHAPTER TWENTY-FOUR: At Home Again

CHAPTER TWENTY-FIVE: 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 apartheid, has found itself infected by a new blight of corruption – but the rule of law, and the institutions protecting it, have been a crucial if incomplete bulwark against this new peril.

This is not only a South African story. In fact, it is part of at least two stories that have echoes around the world. One is the story of the transition from authoritarian rule to democracy in many different nations, and the role that law can play in such transitions. The other is the story of what happens when the happy picture of democratic progress becomes marred. What might have seemed just a few years ago to be a strong and stable democratic consensus in the nations of the West – and a swelling tide of democratisation in other parts of the world as well – does not look so reassuring today. Arthur Chaskalson died in 2012, but before he died he had expanded his focus from South African law to the protection of rights around the world. As the leader of the Eminent Jurists Panel of the International Commission of Jurists, he studied the world’s counterterrorism programmes and found in them frightening evidence of the breakdown of human rights principles in many countries, and in particular in my own country, the United States.

His warnings now seem all too prescient. In the United States, a President with little commitment to many of the rights guarantees that have guided American life for decades is also using his power over judicial appointments to reshape the underlying contours of American law. The United States will not adopt apartheid – that is, a system in which a small racial minority holds almost unlimited sway over a voteless racial majority – but it may well adopt many discriminatory measures, and the country may remain bitterly polarised for decades to come. South African history offers many lessons for Americans and others around the world who are dismayed by such developments, and Arthur’s story in particular offers lessons about the feasibility and the value of legal struggle to protect human rights, struggle that may well take a generation or more to prevail, and then only after many, many disappointments and much suffering.

Arthur’s story speaks to South Africans and to citizens of many other nations, but it is also a powerful human story, telling us about ourselves regardless of nationality or political affiliation. What is it that makes a great judge? That question has two different meanings, and Arthur’s life helps answer it in both those senses. One version of the question is: what are the characteristics of a great judge? Judges often seem inherently conservative, establishment figures, and in countries where law’s work is largely in the ongoing protection of long-recognised values and rules, that appearance may be appropriate and real. But the work of the law can be much more dramatic than that. In South Africa, the post-apartheid judges’ task has been to contribute to the transformation of their country, not a conservative assignment at all. The same can be true in countries whose law seems more settled – as Brown v. Board of Education and many other cases of the modern United States Supreme Court attest. For these decisions, the judges we need must still be judicious; they must even be dispassionate; yet they must be passionately committed to the building of a new world. Arthur was such a judge.

The other version of the question is: what causes a person to develop these characteristics? Or we might put the question more broadly: what causes someone to devote his or her life to seeking the transformation of an unjust society, first as a lawyer and then as a judge – as Arthur did? In another world, I think, Arthur Chaskalson might have become a comfortable member of a legal establishment – but that was not the life he came to lead, and one of the most important tasks of the book will be to trace the roots of his character. Born in 1931, he entered law study as a very smart, quite privileged, white and Jewish young man. He opposed apartheid already, but had not made that position the theme of his life. When Arthur became a co-recipient of the Gruber Justice Prize in 2004, the award said of him that if a life could be mapped, his ‘would surely appear as a straight line starting from a commitment to human rights, and leading, without deviation, to the bench of the Constitutional Court of South Africa and the position of Chief Justice. It is a long line, but an unwavering one.’¹ I do not think Arthur ‘wavered’, but I also do not think his life moved along a simple straight line as this image would have it.

As he grew into adulthood, his focus on the injustice around him sharpened. His own father had died when Arthur was a small child; now he became very close to a senior lawyer, Bram Fischer, whose commitment to the fight against apartheid was absolute and self-sacrificing. In 1961, at the age of 30, he married a fiery, 19-year-old woman whom he loved for the rest of his long life. Lorraine Chaskalson was a charismatic English professor, a poet, a lover of art and beauty, mother to the Chaskalsons’ two sons, and Arthur’s moral compass, part of every decision he made as he shaped his life in the years to come. The state grew harsher; Chaskalson bravely resisted, joining his older mentor in representing Nelson Mandela. After Mandela’s trial, he might have chosen to join a political party, above ground or underground, or he might have chosen to leave the country. He did none of these. Instead he remained, practising law, earning a reputation on all sides for formidable integrity. What that meant and what it cost him – how this man of integrity shaped a life in the law when law and justice were so rarely aligned – will also be a central concern of the book.

There is more to be said on all these questions. This book is a biography, rather than a work of social science. I do not propose grand theories of the law, or of human development; instead, I will tell Arthur’s own story in detail and seek to draw from the moments of his life more nuanced, though more individual, answers than broader accounts can generate. Along the way I will also be telling some of South Africa’s story. For readers not familiar with modern South African history, I will try to provide the context that will illuminate the particular moments in Arthur’s life.

But even those who know South African history well may not know the aspects of it that were most salient for Arthur, and so to write this biography I must also be to some extent a historian. The book will look closely at the dramatic events of the Rivonia trial, in which Nelson Mandela was sentenced to life imprisonment; this trial is well known but I believe that a focus on it from the perspective of the decisions that the accused, including Mandela, and their lawyers, including Arthur, made will still shed new light. Fifteen years later Arthur began building the Legal Resources Centre (LRC), which became in the years before the end of apartheid the leading public interest law group in South Africa; understanding Arthur’s work at the LRC is important in itself but also important for an understanding of this significant institution. Arthur’s next role was in the negotiation of the first post-apartheid Constitution; here, too, much has already been written, but a focus on the particular contribution Arthur made will illuminate what that negotiation process actually was. Perhaps most strikingly, looking at Arthur’s role in the creation and first decade of the Constitutional Court will tell us a lot about the court itself as well as about Arthur. Finally, Arthur’s efforts to publicise and criticise the world’s counter-terrorism programmes, in the years after he left the Constitutional Court in 2005, are an important element of Arthur’s own career, but they turn out to have potentially chilling relevance to the state of world liberty today. The product of all these stories, I hope, will be a picture of the role of law in South Africa’s victory over apartheid, and in the world’s struggles against injustice, and a picture of an extraordinary lawyer, judge and man, Arthur Chaskalson.

Acknowledgements

I am grateful, first of all, to the Chaskalson family, and to the informal advisory committee that helped in the process, for inviting me to write this biography. Arthur’s widow Lorraine was the person who emailed me to make the invitation; at a time when she did not find daily life easy, she welcomed my wife Teresa and me to stay with her on our research trips to South Africa, and spoke readily and in detail about the events of Arthur’s life and her own. All of the Chaskalsons have supported my work on this book, talking with me at length about Arthur and their family, and helping me to connect with others who knew him and to get access to vital documents. And at the same time they have been careful to support my writing the book that feels right to me.

The invitation to write Arthur’s biography meant a lot to me personally, because I had valued my friendship with Arthur very much. But it had an additional meaning for me, one that went back much further in my life. My father, Richard Ellmann, was a biographer; he wrote two volumes on the poet William Butler Yeats, a definitive biography of James Joyce, and at the end of his life a widely (and rightly) admired biography of Oscar Wilde. He and my mother, one of the first feminist literary critics, inhabited a world of literature and humanities that I loved but that I left in order to first practise and then teach law. I don’t regret that choice, but the chance to write a biography of Arthur was for me a chance to square the circle, by becoming – in my mid-sixties – a biographer after all.

In a classic irony of life, at almost the same moment that the Chaskalsons’ invitation arrived, I was diagnosed with cholangiocarcinoma, a rare cancer arising from the bile duct that can be particularly insidious and lethal. The Chaskalsons might have chosen to withdraw their invitation, but they did not. Instead, when my oncologist told me that I could make a two-year work commitment, I told the Chaskalsons that I would write the book that I could write in that time, and they accepted this plan and have been sensitive to my health throughout the process of writing. I’m very happy to say also that so far I have been one of the lucky ones medically; I received my diagnosis in November 2015 and am still, in early 2019, going strong. For that I’m very grateful to the dedicated physicians and staff at Memorial Sloan Kettering Cancer Center, and to the sustaining community that has arisen within the Cholangiocarcinoma Foundation. And in another surprising twist, my illness meant that I largely stopped teaching but I still had the strength to continue reading, interviewing and writing this book. It became my main professional focus, and with the help of many others whom I want to thank here, I have been able to immerse myself in Arthur’s life and to write this biography.

This book would have been impossible to research and write without the grant support that I have received for it. For their generous grants I am grateful to the Ford Foundation, its president, Darren Walker, and the staff there with whom I’ve worked; and to the Atlantic Foundations, their president, Christopher Oechsli, and the Atlantic staff with whom I’ve worked. I’m also grateful to Harvey Dale, a good friend of Arthur’s who has more than once helped open doors for me for funding of my South Africa work. Joel Joffe, one of Arthur’s oldest friends, who sadly died while my research was under way, also generously supported this work through his foundation, the Joffe Charitable Trust, and I’m grateful to Joel, his wife Vanetta and the trust’s staff.

A number of trusted friends and advisers provided guidance and assistance to lay the groundwork for the bi-national publication of this book, including Alida Brill, Edwin Cameron, Joe McElroy, Suzanne La Rosa, Joe Spieler and Randall Williams.

New York Law School, my academic home since 1992, also generously aided this work. I’m very grateful to Dean Anthony Crowell for his unstinting personal support for this project, and similarly to Associate Dean William LaPiana. Concretely, New York Law School generously assisted this work with summer research stipends and payment for student research assistance. Stuart Klein and Susan Redler helped with financial arrangements to enable me to receive outside grant assistance; Jody Pariante and Jennifer Khuu helped in many ways with the adjustments, financial and otherwise, that I had to make as a result of my illness. Elise Stone helped with printing the manuscript and sending to me crucial research materials. In addition to the support provided by New York Law School throughout this project, their celebration of the completion of this manuscript on 20 February 2019 allowed me the privilege of sharing and cherishing this accomplishment with my colleagues, friends and family here in New York and abroad, for which I will be eternally grateful.

The librarians of the New York Law School Mendik Law Library, including Camille Broussard, Carolyn Hasselmann and Michael McCarthy, were – as always – quick and efficient in dealing with my many research requests. Jennifer Kuhn, an NYLS student, provided valuable research assistance. Abroad, Gabriele Mohale of the Historical Papers Research Archive at the University of the Witwatersrand’s Cullen Library provided a warm welcome and ready assistance during several days of intense research that my wife and I did there – and also connected me with her sister-in-law Pauline Mohale, a former client of Arthur’s whom I had the pleasure of interviewing. Ruksana Patel-Sussewell, who has her own extensive experience as an interviewer in South African oral history, has worked with great care on the transcription of the interviews I’ve done for this book, a particularly important aspect of the project since I plan to deposit these interviews in research collections for the use of future scholars. She also arranged for the translation of an Afrikaans court decision into English; I’m grateful to her and to the translator for that additional assistance, and to Marco Masotti for suggesting that I work with her.

The Moody-Fessenden family have offered friendship and support throughout the project. The numerous conversations with Drew, LoriJeane, Miles and Susan have helped me to explicate and clarify ideas. Additionally, Drew’s assistance with organising my research notes has been invaluable.

One of the great pleasures of working on this book has been the opportunity to interview many of Arthur’s family members, friends, colleagues and clients. As informative as these interviews were, I still regret that despite my efforts there were a number of people I was unable to reach and speak with; but I was able to interview approximately 120 people in all, from each of the major phases of Arthur’s life. The process of transcribing these interviews is still under way; readers will see that I sometimes cite the transcripts but more often I do not. Where I don’t, I am relying on my own notes, generally made during the interviews themselves.

Many of the interviews are listed in the endnotes and I’m grateful to all of them for their generosity and candour, and for the opportunity to interact, even if only via Skype, with such impressive people. I must especially thank those who spoke with me not once but sometimes many times, and those who helped guide me to other people with whom I should speak. These include Lorraine Chaskalson, Arthur’s widow who herself sadly passed away in 2017; Matthew Chaskalson, Arthur and Lorraine’s older son, and his wife Susie Levy; Jerome Chaskalson, Arthur and Lorraine’s younger son, and his wife Jackie Chaskalson; Sydney Chaskalson, Arthur’s older brother; and a number of Arthur’s friends and colleagues: Penny Andrews, George Bizos, Geoff Budlender, Steven Budlender, Edwin Cameron, Aninka Claassens, Harvey Dale, Dennis Davis, Roman Eisenstein, Adrian Friedman, Joel Joffe, Johann Kriegler, Denis Kuny, Gcina Malindi, Gilbert Marcus, Roelf Meyer, Dikgang Moseneke, Benjamin Pogrund, Kate O’Regan, Richard Rosenthal, Anne Sassoon, Toni Shimoni, David Smuts, and David Unterhalter. Albie Sachs was not only very generous with his time in talking with me about Arthur, but also extremely helpful in making sure that my book and another one in the works, a collection of essays edited by Susannah Cowen, could both proceed without difficulty.

I had the opportunity to present draft chapters of this book to my colleagues at a New York Law School Tuesday faculty scholarship lunch, and I appreciate the helpful comments I received that day. Sheldon Bach offered advice and encouragement at every point. Several other people have read all or most of the entire book in draft and given me very helpful comments on it; these include Matthew Chaskalson, Jerome Chaskalson and Geoff Budlender, and my sister Lucy Ellmann, who took time to read and comment while on vacation and about to edit a book of her own. Over dinner and on walks, I’ve had the pleasure of discussing various aspects of the book with my family, including Lucy’s husband Todd McEwen; my other sister, Maud Ellmann, and her husband John Wilkinson; my son Brian Ellmann and his wife Karen; my younger son David Ellmann and his wife Nivi Rajan; and my daughter Nora Ellmann.

But till now I’ve said little about my wife Teresa Delcorso-Ellmann. Teresa has been involved in every aspect of the creation of this book. She has been an integral part of the research itself, sitting in on and sometimes adding questions during interviews (and remembering answers that I have missed from important and unrecorded conversations), mulling over what we have learned and what it means, managing the technology for the audio and video recordings we’ve been making, reading and commenting on the manuscript, and suggesting ways for me to press forward with the work. At the Wits Cullen Library, she wielded her iPad to take some 4500 photos of documents from Arthur’s files; here in New Jersey she shaped the process of turning my individual chapter files into consistent parts of a single complete manuscript. On the side of all this she’s kept a careful eye on my health. Without her I could not have written this book. I’m grateful for all that assistance, and even more for her sustaining love.

Stephen Ellmann*

February 2019

*Stephen Ellmann died from complications from cholangiocarcinoma shortly after writing these Acknowledgements, on 8 March 2019.

CHAPTER ONE

Family

Arthur Chaskalson was born at home on 24 November 1931, in a house on St John’s Road in Houghton, Johannesburg. He was born into comfort, a child of well-off Jewish parents. He seemed marked for success: he would grow up to be tall, athletic, smart, prosperous. In a two-page autobiography he wrote after his retirement from the Constitutional Court in 2005, he remarked: ‘By accident of birth I was privileged, and entitled to all the benefits that whites enjoyed in South Africa at that time – a good home, a good education, and opportunities to prosper in my chosen profession, the law.’¹ It is easy to imagine him growing up to lead a life of privilege, not without conscience but fundamentally disengaged from the grotesque injustices of apartheid South Africa. Perhaps, like some of his friends, he might even have decided to emigrate. But he became someone quite different: an advocate for the dispossessed, the leader of South Africa’s pre-eminent public interest and anti-apartheid law firm, the first head of the post-apartheid nation’s Constitutional Court. The story of his life is the story of his own transformation, a transformation that was not just the product of choice and will exclusively, but also of something more delicate, an evolution, not even completely understood by Arthur himself, towards what he became. To understand that evolution requires a sense of Arthur’s own personal development, but also a recognition of how distant, and how disturbing, the world into which Arthur was born is from the South Africa that emerged over the coming decades.

Arthur was born into privilege, not only as a white child in South Africa, but as the child of prosperous parents. His father Harry had made a considerable success in the family mattress business, the Transvaal Mattress Company, which Arthur’s grandfather Bernard had founded after the Anglo-Boer War. As Arthur wrote – he did not produce an autobiography, but as he approached the age of 80 he penned a seventeen-page beginning of a memoir, at times matter-of-fact, at times sad and at times self-deprecatingly funny: ‘my father had left school without matriculating when he was young in order to help his father in a mattress business. Over time he proved to be a successful businessman and the mattress factory flourished. It was floated as a public company on the Johannesburg Stock Exchange and also on the London [Stock Exchange].’² The Chaskalsons were wealthy enough that in 1934 the whole family, including the children’s nanny, Janet Thorogood, sailed to Europe; his older brother Sydney recalled that ‘the crew were very fond of Arthur … and with a mop of thick curly hair, they called him Carina’.³

This business success had not come without effort. Sydney writes, no doubt from family lore, that ‘my aunts sat around work tables sewing mattress covers, and fixing leather tufts to mattresses. Our father, then aged 12, rode a bicycle around the dusty streets of Johannesburg, selling mattresses to nascent furniture dealers.’⁴ The Transvaal Mattress Company competed with other mattress companies, but ‘in the 1920s business got tough (as usual), and three mattress companies amalgamated – under the name Transvaal Mattress and Furnishing Co. (Pty) Ltd’.⁵ This company, in turn, must have been the one that went public.

Success had also not come without legal difficulties. In Rex v. Chaskalson and Others, decided in late 1919, a prosecution had been brought against ‘the accused Chaskalson [Bernard] and four others who were the directors, secretary and manager of the Transvaal Mattress Company’. In the magistrate’s court they were convicted of wage and hour violations, including ‘allowing some of their employees to work continuously for more than five hours without an interval of at least one hour’. They successfully appealed, however, on the ground that the statute under which they were prosecuted only made the ‘occupier’ liable, and not ‘an impersonal thing like a company’ or its directors and officials.⁶

It is not surprising that the Chaskalsons were in the mattress business; as Richard Mendelsohn and Milton Shain, chroniclers of the life of Jews in South Africa, observe, in the late 1920s ‘the emergent furniture and garment industries had a strong Jewish presence’.⁷ In subsequent generations these furniture makers turned to the professions in increasing numbers, and it appears that two of the other families involved with the company, the Friedmans and Unterhalters, would over time produce lawyers. The grandson of Benjamin Friedman, Basil Wunsh, would later serve as a judge and at Arthur’s request would become a founding member of the board of trustees of the Legal Resources Centre.

The listing on the London Stock Exchange was an achievement; Sydney writes that it was ‘one of the very first South African companies with a London listing’. Not long afterwards it was listed on the Johannesburg Stock Exchange as well. This achievement reflected not only Bernard and Harry’s business success, but also it seems Harry’s close friendship with George Mackenzie, at the time the chairman of various companies and a leading member of Johannesburg’s social elite. Mackenzie was not a Jew, but he ‘offered to put our father (the Jewish Govt. schoolboy) up for membership of that holy of holies, the Rand Club. Our father thanked him, but refused, saying that he did not want to be a token Jew.’ They did, however, join the Johannesburg Country Club, ‘a similar iconic establishment’. Meanwhile Mackenzie, not put off, became the first chairman of the newly listed company, with Bernard as the managing director. Sydney writes that the listing was accomplished ‘through the good auspices’ of Mackenzie and ‘his London colleague Sir Nutcombe Hume’.⁸

Arthur was Jewish, and his family came from Lithuania, the source of the second wave of Jewish immigration to South Africa (the first had been through England). Arthur’s paternal grandfather, Bernard Chaskalson, reached South Africa by about 1895. (Bernard was also known as Benhard or Benhardt; and the family name, Chaskalson, came to be spelled differently by different branches of the family, for example as Chaskelson or Chatzkelson.) One of Bernard’s brothers, Charles, also emigrated to South Africa; other members of the extended family would leave Lithuania for the United States and make their lives there. Bernard had married Dora Schapiro in Lithuania, and they would have seven children. Among them was Harry, Arthur’s father, who was born in 1896, probably in Memel in East Prussia (now part of Lithuania), and then brought to South Africa.

The family story was that Bernard Chaskalson came to South Africa after having first moved to Germany where he owned a mattress factory in Frankfurt. But the historian Richard Mendelsohn told the family about evidence he had discovered that seems to indicate otherwise. It turns out that Bernard Chaskalson filed a compensation claim after the Boer War for damages to his property. According to the material in the compensation file, Bernard emigrated from what was then Russia to the United States in 1880, when he was 23, and became a naturalised American citizen in 1887. Then he emigrated to South Africa in 1896, presumably hoping to benefit from the rush of prosperity resulting from the discovery of gold there. He became a dairy farmer and mattress maker in the Johannesburg area, and then fled to Cape Town in 1899 to avoid the perils of the Boer War, during which he reported he lost £181 worth of mattress-making property. In his letter to Arthur, Professor Mendelsohn wrote that his grandfather’s ‘trajectory is not all that unusual’.⁹

Harry Chaskalson in 1927 married Mary Oshry, who was born in 1904 or 1905, probably in Cape Town. (There was a family dispute over the location of her birth: her older sister Minnie contended Mary had been born in Lithuania, but Mary had a South African birth certificate to back up her insistence that she was born in South Africa.) Her father Raphael Oshry and her mother Musha Herring also emigrated from Lithuania to South Africa; other Herrings also made this passage. Sydney Chaskalson recalls ‘a no doubt apocryphal story that the inn [that the Herring family owned, in the city of Poniewicz], was one day raided by the local revenue authorities, accused of illegal brewing. Musha was told that if she showed the inspector the still, she would be let off lightly. She agreed, pointed him to the steps leading to the cellar, and when he had gone down a few steps, pushed him down, locked the access door, and emigrated to South Africa.’ True or not, the story reflects that many of the ‘Litvaks’ who left their home for South Africa were fleeing a harsh life. In South Africa, Sydney recalls, Raphael ‘although a highly educated man, was never able to make a decent living, and worked as a watchmaker – Musha scrimped and saved and her main object in life was to educate her sons.’¹⁰ But their daughter Mary and her husband Harry Chaskalson were prosperous, and would have their first child, Sydney, in 1928, and their second, Arthur, three years later in 1931.

The family’s heritage in Judaism was deep. Arthur’s paternal grandfather, Bernard, helped found the Beth Hamedrash Hagadol synagogue in Doornfontein, a suburb of Johannesburg then popular with well-to-do Jewish families. Arthur’s brother Sydney writes that Bernard ‘seems to have been either the chairman or treasurer of virtually every Jewish organisation in 1929 Johannesburg’.¹¹ Sydney also recalls being told by their mother that their maternal grandfather, Raphael Oshry, was brought up by his uncle, a much-esteemed rabbi. Their mother also said that Raphael was a cousin (perhaps separated by some degrees) of Abraham Issac Kook, who in 1921 would become the Ashkenazi Chief Rabbi of Palestine. (Another Oshry from Lithuania, Ephraim, would survive the concentration camps and later publish four volumes of his spiritual instruction to Jews struggling to live by rabbinic law while under the Nazis.¹²) Sydney writes that another cousin, David Wolffsohn, was a leading early Zionist, and ‘partly responsible for the original design of the Israeli flag’.¹³

All of these connections formed a part of the family’s sense of its own history. Arthur wrote that ‘in our roots there was a lot of religion. But this was not really followed through in our house.’ Arthur’s mother would later be a South African Zionist leader, who visited Israel annually, and entertained a prominent visiting Israeli, Yigal Allon, in their home. But Arthur would recall that she kept a kosher house not out of conviction but so that others who kept kosher would be able to eat there – while she was quite willing to eat freely in restaurants away from home.¹⁴ This too seems to have been quite typical of South African Jews of that era.¹⁵

Arthur’s own Jewish practice seems to have been limited. Immediately after their father’s death, his brother Sydney taught Arthur how to say Kaddish, the mourners’ prayer, and they would recite it when they went with their paternal grandfather to the synagogue which he had helped found.¹⁶ Arthur would write, around the age of 80, that ‘the prayer has remained fixed in my memory and I can still recite it off by heart when I am in a synagogue and the occasion to do so arises’.¹⁷ Some years later, he would have a bar mitzvah, but not long after that he went to a Christian boarding school, where presumably his opportunities for Jewish religious observance were limited. As an adult, Arthur would fast on Yom Kippur, but he would prepare for his cases at the same time.

Anti-Semitism was certainly part of the South African scene. Many Afrikaner nationalists harboured significant hostility towards Jews, and while Jews responded by strongly identifying with English-speaking white South Africans, many English speakers manifested anti-Semitic views as well. The country had virtually cut off Jewish immigration by the time World War II began.¹⁸ After 1948, with the accession to power of the Afrikaner National Party, South African Jews would largely accommodate themselves to apartheid, very much to the dismay of critics such as Arthur.¹⁹

But in the meantime, as Arthur was growing up, he himself did not seem to be much affected by the anti-Semitism around him. Though he was one of only a few Jewish students at his primary and secondary schools, in each he seems to have encountered little if any anti-Semitism. He would write of his experience at his primary school that being Jewish ‘did not prove to be a major obstacle for me, as I was reasonably clever and quite good at sport. That enabled me to get along relatively unmolested.’ At his secondary school, where his older brother Sydney apparently faced bullying from an anti-Semitic clique of boys, Arthur himself recalled his Jewishness as having been useful, and the cause of envy from the other boys. Being Jewish allowed him to finish his homework while the other students attended mandatory chapel, and enabled him to avoid eating pork whose ‘rind had hairs protruding out of the skin’ – though he was in fact fond of bacon.²⁰

For many young Jews in South Africa in these years, the drama of the building of the state of Israel became a passion, but Arthur did not join any of the Zionist youth groups. It may well be that members of the Chaskalson family who remained in the old country died in the Holocaust – Sydney recalls their father desperately trying to persuade a relative named Leo Schapiro, visiting South Africa in 1933, not to return to Germany. But Arthur was not yet eight when World War II began, not yet fourteen when it ended. He was aware of the war, of course, but the memory he brought with him from his primary school was of one of the children there, ‘older than me and as I remember him, overweight – [who] came from a German family. He became a victim. To make matters worse his father was apparently interned as an enemy alien, and that led to his leaving the school. I often thought about him, thinking how unfair it had been, and wondering what had happened to him. I never knew.’²¹ His sense of justice was already coming to the fore, and it was a universalist one.

While all South African Jews would learn of the horrors of the Nazi era, it was Sydney who was gripped by photos of the Holocaust, put up in the display windows of a Jewish-owned department store in Johannesburg. (Sydney thinks Arthur never saw this photo display because he was away at boarding school.) Perhaps in part for this reason, Sydney did military training to join the Israeli war of independence – but peace broke out before he could travel there. Years later, Sydney would emigrate with his wife and children to Israel. Arthur, however, didn’t try to join the war (he would have been 17 when the fighting stopped in 1949), and his brother recalled that he was never interested in emigrating to Israel. He would later write, ‘Had I been born in Germany my privileged childhood would have been very different. I would have been a victim of the Nazi laws, forced into a ghetto or children’s concentration camp, and denied the opportunity to practise law or engage in any other fulfilling occupation.’ But the conclusion he drew was about injustice in general and not Jews in particular: ‘As I grew older I gradually came to understand the full implications of this, and also to understand how different my life would have been if, born in South Africa, my parents had been black and not white.’²²

As much as Arthur’s actual early life was a life of comfort and privilege, it was also shaped by early loss. His father and mother travelled to England in 1936, when Arthur was four, leaving Arthur and his older brother Sydney to be taken care of in their absence. The ill-fated trip was meant to launch the family’s mattress business on the London Stock Exchange. But Arthur’s father apparently had heart trouble, and he died on that trip, from some combination of heart failure and pneumonia, at the age of 40. Arthur’s mother returned alone to South Africa.

Many years later, Arthur would write about this return:

The day my mother was coming home I was taken for a haircut. After cutting my hair the barber sprayed my hair with scented water and combed it. Later my mother was home. She was sitting in the lounge on a couch with adults around her. She was wearing dark glasses. I assume now that was to hide her tears. I asked her to smell my hair. She did and I told her that my father used to like the smell of my hair after it had been cut. My aunt called me aside. ‘Don’t talk about your father’, she said, ‘it will make your mother unhappy’. I never talked about my father after that.²³

His brother also remembers the return. ‘Relatives had been babysitting the two boys, but no one wanted to break the sad news to us. The lot eventually fell to our nurse Janet Thorogood. I still remember crying my eyes out, but Arthur, aged four and a half, could not quite comprehend it.’²⁴

At the age of four, Arthur had lost his father. His only memory of his father turned out to be ‘of him at breakfast one day, eating a soft boiled egg’. That day, Arthur’s older brother Sydney was in the hospital recovering from a tonsillectomy, and Arthur remembered asking his father ‘if I could go to the hospital to visit my brother’. He recalled the question, but not the answer.²⁵ His father was gone, lost not only to death but to the injunction from his aunt never to speak of him again, and to Arthur’s faithful compliance with that harsh rule.

The loss remained with him. ‘When I was more or less grown up,’ he recalled, ‘my mother gave me a gold Elgin pocket watch which had belonged to my father, and which she had kept for me so that I could have something of his. I had it for many years, winding it up regularly to keep it going, looking at it with pleasure from time to time, but seldom wearing it’ – until it was stolen.²⁶ Arthur’s older brother recalls Arthur having one more memory, of their father buying their mother a cutlery canteen and saying that it is nice to buy people things. Arthur remembered sorting cutlery into this canteen, and when their mother died, Sydney made sure Arthur inherited it.²⁷

While his mother would later remarry, in adulthood Arthur told his older brother that he felt he never had a father. Arthur recalled that one suitor took offence when Arthur’s mother ‘coyly’ told him over dinner, in Arthur’s presence, that Arthur ‘had asked whether Mark was coming to dinner. He responded saying, that was very rude of him. I was mortified. I did not like him and was very glad that not long after he ceased to visit.’ He was pleased at first with his mother’s subsequent choice of Joe Adler, ‘a dentist, who was then in the army medical corps … He was in uniform, had been a fine sportsman in his youth (a double blue at Wits) and I think my mother thought [the new husband, Joe Adler] would be a good substitute father for her two children; as matters turned out she was wrong.’ He recalled that ‘it soon became clear that the marriage was not going to be a happy one. My mother had a much stronger personality than he did, and there were frequent quarrels; despite this, they remained together for over forty years until Joe, then 87, died of cancer. They seemed to have made their peace with one another as they grew older, and their latter years together were better than the earlier years.’ Sydney seems to have felt closer to Joe Adler than Arthur did, and Joe himself, Sydney learned from others, regarded the two boys as his own children, but in some fundamental way the relationship between him and Arthur did not gel. Arthur also recalled that he was not close to any of his maternal aunts and uncles, and did not have much contact with his father’s siblings, though in later life he was close to his mother’s youngest brother, Alec, and hosted the 90th birthday party for Alec’s wife Helen.²⁸

If Joe was too retiring to be a good match for Arthur’s mother, it’s also clear that Arthur was the son of a very strong mother – but with her too Arthur may have experienced distance rather than closeness. The family recalls that when faced with the need to obtain essentially unobtainable permits for her black servants – including Malawians, to whom the state was especially intent on not giving permits – she descended on the government office with such force that she could not be denied. On another occasion, she managed to get the Pick n Pay grocery store near her to take her phone order for groceries and deliver them to her home – precisely what Pick n Pay ordinarily did not do – in part by invoking the name of Raymond Ackerman, a family friend who was the founder of the Pick n Pay chain.²⁹

But while Arthur’s mother Mary was a force of nature, she may not have been a very available mother. The boys had a Scottish nurse, Janet Thorogood. Sydney recalls that ‘Mrs Thorogood had a love of English Literature, had a book collection, of Walter Scott, Dickens, and English Poetry which she shared with Arthur and me’. During the war, ‘there was a world map in her bedroom where the positions of the Allied and Axis armies were marked by coloured pins, which we moved after each news broadcast’. It was Janet who told the boys of their father’s death, and Sydney felt that she actually did much of the rearing of the two boys. Sydney later wrote that ‘After our father died [our mother] went back to study at University, joined the Union of Jewish Women, became national chairlady, worked endlessly during the war years for the executive committee of the Governor General’s War Fund, worked for the Red Cross, and was awarded a medal by them, joined WIZO [the Women’s International Zionist Organisation], became National President, and subsequently honorary Life Vice President of World WIZO. All this time Janet Thorogood was there to care for Arthur and me whilst Mary was busy with the war and communal work.’³⁰

Sydney remembers a time when their mother was going to take them to a movie, and the two boys waited on the street for her but she arrived very late – and this was one of the rare occasions, he said, when she did something with them at all. She would also take them to fancy restaurants a few times a year when they were home from boarding school, and teach them about wine. Years later Arthur would be slow to leave the comforts of home and the domain of his mother as he entered the world of law practice. Arthur’s cousin Aubrey Lunz, who lived with the Chaskalsons as a young man after the death of his parents, recalls Arthur’s mother thinking of Arthur as ‘her blue-eyed boy’ and the ‘cherry on the cake’. But he also says that she would ‘eulogise’ Arthur over the dinner table – to Arthur’s discomfort, for he was never one to sing his own praises.³¹ Arthur would eventually leave his mother’s home, and would grow to be a man who would say of his mother that she ‘was inclined to exaggerate and was not always a reliable witness of events’.³²

After his father’s death, the family moved from their ‘large house’ (as Arthur recalled) at 47 Eighth Street in what is now Melrose Estate in the northern suburbs of Johannesburg to a smaller house ‘around the corner’ at 22 Glenhove Road. The house no doubt was smaller, and Arthur recalled it as being ‘in a different and then less affluent suburb’. The reason seems to be that Arthur’s father had not left all of his estate to his widow: ‘My father had left the house and its contents to my mother and divided the balance of his estate into three parts. One part to my brother, one part to me, (the income from which could be used for our education and other needs) and the third part to my brother and me subject to a usufruct [a right to use and benefit from the brothers’ property] in favour of my mother. My mother was wrongly thought to be a wealthy widow. In fact she had only a comparatively small income and tended to live beyond her means.’ Sydney recalls that he had to stop his horse-riding lessons. Even so, the house had a back garden which would, by the time Arthur was a student at the University of the Witwatersrand, be turned into a tennis court, and was also big enough for cricket games. Arthur’s mother was also able to send both Sydney and then Arthur to a leading private boarding school (then for white children only), Hilton College in Natal. She told her sons that ‘my father had always wanted us to have the best education possible – something that had been denied him’. Their father, an anglophile, would have had them educated in England if he had lived – and this alone would have put Arthur on a different life course. As it was, he and Sydney remained in South Africa but their mother Mary insisted on sending them to Hilton despite the objections of Harry’s brother Jack, who considered it absurd.³³

The family were also well enough off to have three black servants. Sydney recalls being asked by one of their servants, while he was still learning to write, to write a pass so he could travel elsewhere in town. The servant, a grown man, addressed him as ‘Master Sydney’. Sydney recalls being struck, even at the time, by the wrongness of this. He also remembers, at the age of two or two and a half, going to the door around Christmas-time and hearing a black man say, ‘I’m the pepper boy’ – which Sydney, after many repetitions, realised meant that this was the man who delivered the newspapers, and who had come to the door to receive his customary Christmas present.³⁴ Other South Africans who were children in this era also remember the extraordinary power they wielded. Arthur’s friend Denis Kuny said that you could buy a pre-printed book of these passes or permits in a stationery shop. (He also recalled that his family had both a ‘boy’ and a ‘girl’ as servants, and that an aunt of his employed only black men as servants, required them to dress in short white pants, and addressed them all as ‘Jim’.³⁵) Jules Browde, like Denis Kuny a longtime friend and anti-apartheid lawyer colleague of Arthur’s, similarly speaks of being asked by his father to write a pass for their servant Solomon: ‘I would write, Please pass boy Solomon, and not think much about it, and Solomon would thank me for writing it … and the police would let him go because he was in possession of a note written by a twelve-year-old boy.’³⁶ Arthur no doubt shared his older brother’s reactions. At the same time, the Chaskalson boys seem to have lived in a world that except for servants was almost all-white. Arthur apparently did not have the experience of his mentor Bram Fischer, of being friends with black children and then seeing in himself as an adult the taint of irrational prejudice.³⁷ His own recollection in a 2007 interview was that ‘I grew up as a little white boy in a middle class home in an area where I met other little white boys and girls, and that’s how I grew up’.³⁸

But what sort of child was Arthur himself? By his own account, he was shy – and his shyness remained with him all his life. ‘I was a shy child,’ he wrote, and in the years ‘after the death of my father I tended to tag on to my brother and his friends.’ A memory that he had from kindergarten, he wrote, ‘is of being too shy to put up my hand in class, which was required if you needed to go to the lavatory. That led to various accidents, but did not cure my shyness.’ If he was frightened, he was also vigilant: on the bus home from kindergarten, ‘I was always anxious that I might lose my ticket and be caught without one. I would sit with the ticket clutched tightly in my hand throughout the ride.’ His brother says that Arthur was always very dutiful.³⁹

But he was not irredeemably so. He always sat upstairs on that bus because ‘that was more exciting and you could look out from there’. On visits to his grandmother’s flat, he remembered, ‘my brother and I would go on to the balcony to play. We would take grapes from a bowl of fruit or whatever else was suitable and drop it on the passers-by, ducking down immediately we had dropped the grape to hide.’ At home, the boys played by a river or stream at the bottom of the hill on their street.⁴⁰

Similarly, the boys would spend holidays at the farm home of their cousins the Lunzes, in the area of Leslie, east of Johannesburg, which was then the site of a Jewish farming community. (The two Lunz boys, like the Chaskalsons, may have been at the farm only for vacations, because they had moved to Johannesburg to live with their grandparents.) Sydney recalls that ‘It was a great place for young boys to holiday, we each had a horse to ride, there were acres and acres of farmland, fruit orchards, and an irrigation dam – there were pellet guns as well and we, I am afraid, shot lots of birds which we passed on to the farm labourers for food. I remember one day, climbing through a barbed wire fence, nearly stepping on a snake – which the four of us (the two Lunzes and the two Chaskalsons) dispatched with stones.’⁴¹ As Sydney’s reference to ‘the farm labourers’ reflects, there were black families living on the Lunzes’ farm. Aubrey Lunz, Arthur’s first cousin, remembers that they became friends with some of the black children on the farm and with some of their families; he also remembers that, although the Lunzes treated their farm labourers more humanely than some farmers did, there was a lot that people overlooked in those days.⁴² But it seems that these contacts with black children were only fleeting moments in Arthur’s young life.

At the age of nine or ten, Arthur was once riding his bicycle home from school, ‘racing ahead of my brother. I rode into an uncontrolled intersection and collided with a car that was driving in the cross road and also had not stopped. I was thrown up into the air and landed on the ground near to a post box. I got up and dusted myself down … I picked up my bicycle which, like me, had miraculously survived the collision, and continued home on foot with my brother in close attendance. When I got home and reported what had happened, I said that my brakes had failed which was the best excuse I could