Professors,
academics, philosophers, students and interested guests:
1.
It is my honour to have been asked to speak at Plato Week in
South Africa by the School of Practical Philosophy. I would like to
thank Stephen Meintjies and David Horan for
making this week possible. For those of you who may not know me, I am
of Greek origin and accordingly it has brought me endless joy to
conduct some of my research in preparation for this speech.
2.
Tonight I will traverse the topic of Law, Justice and
Morality in South Africa: the Past and the Presentand although I
am neither the first nor the last person that will canvass this issue
and the questions that arise therefrom, I hope only to add to the
debate drawing from my experiences in both the pre and post
democratic South Africa.
3.
South Africa, viewed from the lens of law, justice and
morality, is a society that for a long time was at odds with itself.
A great tension existed, and in many aspects still exists today,
between these three notions and how they can be reconciled - if in
fact the attainment of harmony between these three notions is at all
possible. Colonial South Africa, apartheid South Africa and now our
democratic South Africa has always grappled with these notions to
greater and lesser degrees and fluidly applied their principles or
derogated from their core ideologies. Most notably, during apartheid,
sophists supporting the regime would rely on what is termed Plato's
"useful falsehood".
In The
Republic,[i] Plato
argues that human beings (like the metals gold, silver, and iron and
bronze) ‘possess different natures that fit each of them to a
particular function within the operation of the society as a
whole.'[ii] It
is my view that Plato was incorrect when he chose this particular
metaphor. Human beings have minds, feelings; they yearn for dignity,
equality and freedom - the value that each human being can make to a
society cannot, and should not, be pre-determined. All human beings
excluding slaves were an integral part of Athenian democracy as they
are today throughout the world.
4.
I will quote a passage by Pericles from Thucydides' History of
the Peloponnesian War quoted by Professors A.S. Mathews and R.C.
Albino in an article published in the South African Law Journal in
1966 at page 43:
‘Indeed
it is true that in these acts of revenge on others men take it upon
themselves to begin the process of repealing these general laws of
humanity which are here to give a hope of salvation to all who are in
distress, instead of leaving those laws in existence, remembering
that there may come a time when they, too, will be in danger and will
need their protection.'
5.
Within the course of the next half-an-hour, I will, through
reliance on published texts and law reports, question the notion of
justice in both just and unjust societies; examine the notion of a
just law and who decides that such a law is just; and propose that
dialogue, or dialectic, is the best possible mean to achieving the
most favourable balance between law, justice and morality in a given
society - should the correct institutions be installed. I am of the
firm view that not only is there potential for dialectic in public
life in South Africa but that dialectic, between the state and the
citizenry and between the citizens themselves, is fast becoming
customary within our institutions.
6.
In examining these questions and forwarding my proposition, I
intend to rely, as a foundation, on the notions of law, justice and
morality as found in the writing of Plato. Thereafter, I intend to
apply these notions to the conduct of our society both before and
after the initiation of our democratic dispensation.
The
Notions of Law, Justice and Morality
7.
Within the writings of Plato's Republic, Socrates
makes the argument that a state must possess four cardinal virtues or
qualities - wisdom, character, discipline and justice.[iii] His
principle of justice is the idea of "one man one job, of
‘minding one's own business', in the sense of doing the job for
which one is naturally fitted and not interfering with other
people."[iv] This
sentiment resonates clearly in The
Republic whereby
Socrates, in dialogue with Glaucon, states:
‘At
any rate, wisdom, discipline, courage, and the ability to mind one's
own business are all rivals in this respect. And we can regard
justice as making a contribution to the excellence of our city that
rivals that of the rest.'
‘Yes,
certainly.'
‘Look
at it again this way. I assume that you will make it the duty of our
rulers to administer justice?'
‘Of
course.'
‘And
won't they try to follow the principle that men should not take other
people's belongings or be deprived of their own?'
‘Yes,
they're bound to.'
‘Their
reason presumably being that it is just.'
‘Yes.'
‘So
we reach again by another route the conclusion that justice is
keeping what is properly one's own and doing one's own job.'[v]
8.
Plato, in laying his foundation for his notion of justice
in The
Republic,
makes reference to the notion of justice and introduces his notion of
law in Crito,
or the Duty of a Citizen. It appears that through this dialogue,
Plato's intention is not to portray Socrates as a philosopher, as he
would later do in The
Republic,
but "simply as a good citizen, who having been unjustly
condemned is willing to give up his life in obedience of the laws of
the state."[vi] Through
both The
Apologyand Crito,
Plato portrays Socrates as a man who does not fear death.
9.
As Socrates days draw near their end, he is approached by Crito
who has planned for Socrates's escape before he is finally condemned.
However, Socrates will not flee and resolves to be put to death in
accordance with the laws of the state which he sees as just - for
him; it would be unjust and dishonourable to flee from his
persecutors as for Socrates, "justice and institutions and laws
are the best things amongst men."[vii] Socrates
engages with Crito and states:
"Then
consider the matter in this way:-Imagine that I am about to play
truant (you may call the proceeding by any name which you like), and
the laws and the government come and interrogate me: ‘Tell us,
Socrates,' they say; ‘what are you about? are you not going by an
act of yours to overturn us-the laws, and the whole state, as far as
in you lies? Do you imagine that a state can subsist and not be
overthrown, in which the decisions of law have no power, but are set
aside and trampled upon by individuals?' What will be our answer,
Crito, to these and the like words? Anyone, and especially a
rhetorician, will have a good deal to say on behalf of the law which
requires a sentence to be carried out. He will argue that this law
should not be set aside; and shall we reply, ‘Yes; but the state
has injured us and given an unjust sentence.' Suppose I say
that?"[viii]
10.
Socrates states further:
"Then
will they not say: ‘You, Socrates, are breaking the covenants and
agreements which you made with us at your leisure, not in any haste
or under any compulsion or deception, but after you have had seventy
years to think of them, during which time you were at liberty to
leave the city, if we were not to your mind, or if our covenants
appeared to you to be unfair. You had your choice, and might have
gone either to Lacedaemon or Crete, both which states are often
praised by you for their good government, or to some other Hellenic
or foreign state. Whereas you, above all other Athenians, seemed to
be so fond of the state, or, in other words, of us, her laws (and who
would care about a state which has no laws?), that you never stirred
out of her; the halt, the blind, the maimed were not more stationary
in her than you were. And now you run away and forsake your
agreements. Not so, Socrates, if you will take our advice; do not
make yourself ridiculous by escaping out of the city."[ix]
11.
It thus becomes clear, through his dialogues, that Plato's notion of
law and justice carry both individual and collective traits.
Individually, justice resides in the individual through an
individual's ability to find harmony and balance; to mind one's
business and to do one's job; and to bind oneself to the laws of the
state - which, in a democracy, are assumed to be just. Collectively,
justice in the state dictates that citizens must respect what is not
theirs and fulfil their individual duties to ensure harmony within
the state.
Therefore,
for Plato, just laws are the product of a just society with
democratic institutions. Arguably, morality does not need to
reconcile itself with law and justice if democratic institutions have
been installed. For it is these democratic institutions that
determine just laws which should be morally unassailable. However, in
our past, two leading figures in the struggle against apartheid had
to fight against an undemocratic system without the benefit of
democratic institutions. Both Nelson Mandela and Bram Fischer,
without the benefit of democratic institutions, had to try,
themselves, to reconcile the conflicting notions of law, justice and
morality.
Morality
at Conflict with Law and Justice
12.
With the formalisation of apartheid in 1948 and the laws that flowed
therefrom, the immorality of the suppressive colonial system became
intensified by unjust laws favouring a small minority of persons in
the society. Good men had to stand up and the system had to try to
keep them down if it was to continue in its attempt to meet its end.
13.
In 1954, the Incorporated Law Society of the Transvaal brought an
application against Nelson Mandela who was, at that time, an admitted
attorney of the High Court of South Africa.[x] The
Law Society, due to Mandela's conviction for contravening section 11
(b) of the Suppression of Communism Act,[xi]sought
to have his name removed from the roll of attorneys thus preventing
him from practicing law anywhere in South Africa. Mandela opposed the
application. In terms of section 11 (b) of the Suppression of
Communism Act:
"any
person who advocates, advises, defends or encourages the achievement
of any such object (i.e. one of the objects of communism) or any act
or omission which is calculated to further the achievement of any
such object shall be guilty of an offence."[xii]
14.
Within the evidence led before the court, Mandela was convicted of
the offence due to his involvement in the establishment of what is
now termed the defiance campaign. Amongst other
resolutions, in July 1951, the joint conference of the African
National Congress and the South Indian African Congress resolved
that:
"[d]efiance
of unjust laws should take the form of committing breaches of certain
selected laws and regulations which are undemocratic, unjust,
racially discriminatory and repugnant to the natural rights of men.
Rather than submit to the unjust laws we should defy them
deliberately and in an organised manner and be prepared to bear the
penalties thereof."[xiii]
15.
In essence, the court tasked with determining whether or not Mandela
should be removed from the attorneys roll had to decide whether his
misconduct, or refusal to be bound by an unjust law, impacted his
professional capacity as an attorney. If so, he would have to be
removed from the roll.
16.
In ultimately finding that Mandela's misconduct was not professional
in nature and therefore dismissing the application. Ramsbottom J
stated:
"While
I think that in certain circumstances an attorney who is privileged
to practise in the Courts may be expected to observe the laws more
strictly than other persons, the fact that an attorney has
deliberately disobeyed the law does not necessarily disqualify him
from practising his profession or justify the Court in removing his
name from the roll. We are not concerned in this case with misconduct
committed by an attorney in his professional capacity; the offence
committed by the respondent [Mandela] had nothing to do with his
practise as an attorney. It is clear, however, that the Court will in
a proper case remove an attorney from the roll where he has been
convicted of a crime which was not committed in his professional
capacity,"[xiv]
17.
There was no moral turpitude in the commission of his offence.
18.
Anecdotally, whilst incarcerated on Robben Island some ten years
later, the Law Society once again filed an application to have his
name removed from the roll. Mandela responded that he would need two
weeks in the Pretoria Court library to adequately respond to their
application. The Law Society quickly withdrew the application.
19.
Twelve years after Mandela successfully responded to the Law Society,
the Society of Advocates of South Africa launched an application
against Bram Fischer to have his name struck from the roll of
advocates.[xv]Unlike
Mandela, Fischer did not receive a favourable interpretation of the
law. The facts briefly stated: On 25 January 1965, whilst on trial,
together with 13 others, for contraventions of the Suppression of
Communism Act, Fischer failed to appear before court after satisfying
the court that he should be granted bail to attend to professional
duties in London. He did not attend at that hearing again as he had
gone underground. The Society of Advocates sought to have his name
struck from the roll as, in their view and the view of the Court, his
misconduct in absconding was professional in nature. The Society of
Advocates was successful with their application.
20.
For the purposes of this evening, I wish to recall two, now famous,
letters that were directly related to the trial and the subsequent
application. They are germain to our dialogue today.
21.
On 25 January 1965, the day on which Fischer failed to appear before
court, his counsel informed the Court that he had received a letter
from Fischer dated 22 January 1965. Fischers counsel, Sydney
Kentridge QC assisted by the late Arthur Chaskalson, read the letter
to the court, it stated:
"By
the time this reaches you I shall be a long way from Johannesburg and
shall absent myself from the remainder of the trial. But I shall
still be in the country to which I said I would return when I was
granted bail. I wish you to inform the Court that my absence, though
deliberate, is not intended in any way to be disrespectful. Nor is it
prompted by any fear of the punishment which might be inflicted on
me. Indeed I realise that my eventual punishment may be increased by
my present conduct... My decision was made only because I believe
that it is the duty of every true opponent of this Government to
remain in this country and to oppose its monstrous policy of
apartheid with every means in its power. That is what I shall do for
as long as I can...
...I
can no longer serve justice in the way I have attempted to do during
the past thirty years. I can do it only in the way I have now
chosen."[xvi]
22.
A further letter from Fischer dated 4 February 1965 was also made
available to the Court, the relevant portions thereof stated:
"I
have been following the Press and have seen the reports of a decision
in terms of which it is said that the Johannesburg Bar council
intends applying to Court in order to have my name struck off the
roll of advocates.
I
assume that the sole reason for the decision is that I deliberately
absented myself from my trial and estreated my bail.
When
an advocate does what I have done, his conduct is not determined by
any disrespect for the law nor because he hoped 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.
Though
there have always been persons who have been prepared, by way of
protest, to accept such punishment in respect of political crimes as
might be imposed by an independent judiciary, this is not what we
face in South Africa to-day. However independent and fair the Bench
in my case, I was facing, if convicted, an ‘indeterminate' sentence
which would be imposed at the sole and unfettered discretion of the
Minister of Justice. We have already seen how this type of sentence
has been imposed upon Mr. Sobukwe and we have already seen how
European public opinion in this country, to its lasting disgrace, has
failed to register any protest against this arbitrary, indefinite
incarceration and has complacently accepted this total abolition of
the rule of law..."[xvii]
23.
In finding for the applicants and accordingly ordering that Fischer's
name be struck from the roll of advocates, De Wet JP made reference
to the earlier application involving Mandela, upon which Fischer's
counsel had relied, and stated:
"...[t]he
case is in any event distinguishable, inasmuch as the Court was
apparently of the view that the respondent [Mandela] had been
punished for his unlawful activity, which had ceased and was not
likely to recur (a wrong view, as it turned out). But I would also
say, with respect, that the Court appears to have overlooked the fact
that it is the duty of an attorney to further the administration of
justice in accordance with the laws of the country and not frustrate
it."[xviii]
24.
The number of executive minded judges increased during the apartheid
rule.[xix]
25.
De Wet JP therefore clearly did not differentiate between the
conflicting notions, at that time, of law and justice on the one hand
and morality on the other. He bound himself strictly to the notions
of law and justice in what was arguably an immoral system. However,
Fischer, unlike Socrates in his discussion with Crito, derogated from
his adherence to the law because he could not reconcile law, justice
and morality within the apartheid system - he did not believe in the
institutions that were supposed to create and uphold just laws.
Fischer
believed that the apartheid laws were manifestly unjust as they were
not the product of democratic dialogue but rather enacted for the
benefit of a few - they were, for him, immoral. Fischer too could
not, in good conscious, work within a justice system of laws that
were applied, in his mind, by illegitimate institutions.
Therefore,
in stark contradiction to the Athenian dispensation where just laws
were deliberated upon by democratic institutions, under apartheid,
just laws could not exist because they were not decided upon by a
majority of citizens and therefore morality far from reconciling
itself with law and justice was used to fight for democratic
institutions. Three decades after Fischer and Mandela's moral
dilemmas, the democratic institutions that could reconcile the
competing notions of law, justice and morality were finally installed
in South Africa.
26.
Coincidentally, in 2003, Fischer, who Mandela referred to as one of
the "bravest and staunchest friends of the freedom struggle that
I have ever known", became the first South African to be
posthumously reinstated to the Bar. A full bench comprising Ngoepe
JP, Snyder and Ponan JJ in reinstating Fischer stated:
"It
is not insignificant that the court, in the application to strike
Advocate Fischer off the roll, noted that insofar as a future
application for readmission was concerned, it was impossible for the
court to foresee what would happen but that the court was concerned
with the laws in force at that time and with the structure of society
as it then existed in this country. That future time is now, a time
when the Society of Advocates recognises that Abram Fischer QC was a
fit and proper person to continue to practise and that a grave
injustice was done to him.[xx] The
Respondent fully supports the application for the readmission of
Abram Fischer QC to the roll of advocates."
Dialogue
and Our Democracy
27.
With the installation of democracy in 1994 and the drafting of first
an interim and then a final Constitution which took effect in 1996,
the people of South Africa sought to right the wrongs of the
apartheid regime. Central to this task was drafting a Bill of Rights
and the creation of the institution of a Constitutional Court which
would stand as beacon of justice where people could rely on eleven
Justices to ensure that the state and other citizens did not
transgress constitutionally protected rights. Like Socrates in his
dialogue with Crito, the Constitution and the institution of the
Constitutional Court needed to be just as it needed to become the
best thing amongst South Africans if the tension that existed between
law, justice and morality that existed during apartheid was to be
reconciled in the new South African democratic dispensation.
28.
Central to the task of establishing a democratic order and conscious
of the need to define a conception of democracy unique to the
dictates of the people of South Africa, the first bench of the
Constitutional Court, under the leadership of the late Chief Justice
Arthur Chaskalson, who incidentally had been involved in Fischer's
trial, decided the early cases of Constitutional Court with the
notion of dialogue firmly in mind because for the Justices dialogue
was a notion most central to democracy and a practice that could heal
the divisions created by the past. It was through dialogue that law,
justice and morality could be reconciled. According to Justice Sachs:
‘The
right to speak and be listened to is part of the right to be a
citizen in the full sense of the word. In a constitutional democracy
dialogue the right to have a voice on public affairs is constitutive
of dignity. Indeed, in a society like ours where the majority were
for centuries denied the right to influence those who ruled over
them, the right "to be present" when laws are being made
has deep significance.'[xxi]
29.
The thinking of the Court, it could be argued, was influenced, to
some extent, on the manner in which the Freedom Charter had been
drafted some 50 years earlier:
"On
the eve of the Congress it was reported that ‘for months now the
demands have been flooding in to COP (Congress of the People)
headquarters, in sheets torn from school exercise books, on little
dog-eared scraps of paper, on slips torn from COP leaflets.'[xxii]
30.
By relying on dialogue and the conception of participatory democracy
where the demands of the citizenry are not only heard but acted upon,
the Constitutional Court sought to enhance human dignity, a
constitutionally protected right, in an attempt to align morality
with law and justice. It would be a mammoth task, a task that is
continuing.
But
the democratic project is well underway, by creating democratic
institutions such as the Constitutional Court, law, justice and
morality can be reconciled. Harmony may be able to be attained. The
task for us now is to ensure, like Socrates, that the people of South
Africa bind themselves to our laws because it must be our hope that
they are not only just but that they are also perceived to be just.
In the words of the late Chief Justice Ismael Mohammed, a colleague
who I had the honour of working with, "whatever be the eventual
content of laws, its object must always be consistent with
justice."[xxiii]
Conclusion
31.
We, as South Africans, stand at a cross-road. The one road, lined
with securocrats, the plundering of the public purse and the attack
on our democratic institutions, if taken, will create an imbalance
where law and justice cannot be reconciled with morality as our
institutions and the very laws themselves will be perceived to be
illegitimate. The other road is harder to follow, it requires all of
us to work together with a common purpose, to do our job, and to
ensure both individually and collectively that we bind ourselves to
our just laws and act against those who break them.
As
great trees continue to fall within our forests and where the
old-guard of moral authority wains, it is the youth who must work to
build our country and ensure that morality can be reconciled with law
and justice. To do so we must talk to one another and we must
strengthen our institutions to ensure that our differences can be
settled. In doing so, and in the words of the late Chief Albert
Luthuli, we must always "give a charitable interpretation to
each man's conduct until such interpretation has been proved to be
unsound,"[xxiv] but
if the conduct of our countrymen is proved to be unsound, we must act
to defend our laws, we must act to defend our institutions, and we
must act to ensure the legitimacy of our democratic project for to do
otherwise would be unjust.
In
this regard, the primary duty rests with the courts. We cannot,
within our democracy, continue to defy the laws of our state. Despite
some criticisms, in the main, we are governed by democratically
elected representatives and have an independent judiciary but this
does not mean that these institutions should not be constantly
regulated by the citizenry.
32.
This would be an appropriate time to read a quote by Benjamin
Franklin, when the American society was at odds with itself, which
acts as a stark reminder of the conflict between morality and law and
how much harder the second of our two roads will be, it reads:
"They
that can give up essential liberty to obtain a little temporary
safety deserve neither liberty nor safety."[xxv]
33.
I would like to conclude with a quote by Thucydides from the funeral
oration of Pericles:
For
our government is not copied from those of our neighbors; we are an
example to them rather than they to us. Our constitution is named a
democracy because it is in the hands not of the few but of the many.
But our laws secure equal justice for all in their private disputes,
and our public opinion welcomes and honors talent in every branch of
achievement, not for any sectional reason but on grounds of
excellence alone. And as we give free play to all in our public life,
so we carry the same spirit into our daily relations with one
another. . . .We are lovers of beauty without extravagance, and
lovers of wisdom without unmanliness. Wealth to us is not mere
material for vainglory but an opportunity for achievement;
and poverty we think it no disgrace to acknowledge but a
real degradationto make no effort to overcome. Our citizens
attend both to public and private duties, and do not
allow absorption in their own various affairs to interfere
with their knowledge of the city's. We differ from other
states in regarding the man who holds aloof from public
life not as ‘quiet' but as useless; we decide or debate,
carefully and in person, all matters of policy, holding not that
words and deeds go ill together but that acts are foredoomed to
failure when undertaken undiscussed. For we are noted for being at
once adventurous in action and most reflective beforehand. Other men
are bold in ignorance, while reflection will stop their onset. But
the bravest are surely those who have the clearest vision of what is
before them, glory and danger alike, and yet notwithstanding go
out to meet it. . . . In a word I claim that our city as a whole is
an education to Greece, and that her members yield to none, man by
man, for independence of spirit, many-sidedness of attainment,
and complete self-reliance in limbs and brain. [xxv].
34.
We will do well to have regard to Plato, Pericles and Thucydides.
35.
I would like to thank Michael Power, a colleague at the Legal
Resources Centre, who unfortunately could not be here this evening,
for his assistance with research in relation to this speech, and I
would like to thank the School of Practical Philosophy for allowing
me to present this speech this evening.
George
Bizos SC
Legal
Resources Centre
22
April 2012
Endnotes
[ii] Ibid
at page 116 (415a).
[iii] Ibid
at page 130 (426).
[iv] Ibid.
[v] Ibid
at page 138 (433d to 434a).
[vii] Ibid.
[viii] Ibid.
[ix] Ibid.
[xi] Act
44 of 1950.
[xii] Op
cit note 9 above at page 104C.
[xiii] Ibid
at page 105 to 106.
[xiv] Ibid
at page 107C.
[xvi] Ibid
at page 135C.
[xvii] Ibid
at pages 135 to 136.
[xviii] Ibid
at page 137E.
[xix] See
Dugard Human
Rights and the South African Legal Order -
Princeton, Chapters 9 & 10, pages 279 - 365.
[xxi] Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and
Others 2006
(2) SA 311 (CC) (New
Clicks)
at paragraph 627.
[xxii] Gilbert
Marcus ‘The Freedom Charter: A Blueprint for a Democratic South
Africa' Centre for Applied Legal Studies, Occasional Paper 9, June
1985, 11.
[xxiii] Chief
Justice Ismael Mohamed, The Second Bram Fischer Memorial Lecture, May
1998.
xxv Translated
by Honors World History, available here.
Accessed on 22 April 2013.
