how to negotiate the years to come must remain uncertain. Bram was not a man to press his views on others, but that might not have been what happened at all. Arthur, who as we’ve seen had been profoundly affected by the trial – growing, as Denis Goldberg recalled, close to the accused in a way he had not been initially – might have felt that he wanted Bram’s advice and sought it out. Or he might not, and in the end whether he asked for advice is less important than what Arthur concluded about the situation he faced.
It is worth pausing for a moment on one point: whether Arthur, because of Fischer’s example or for any other reason, became a member of the Communist Party. Arthur was dogged by this charge during his lifetime. It appears that members of the security police may have imagined that Arthur took over the leadership of the Communist Party from Bram; thus Matthew Chaskalson, when he was working in 1991 for a commission investigating the city of Johannesburg’s intelligence bureau, encountered an ‘organogram’ which showed the Politburo at the top and, far down, the Legal Resources Centre.65 But no one has reported finding actual evidence to support these notions. On at least one occasion, moreover, Arthur successfully insisted on the insertion of an erratum notice in a book, The Awkward Embrace, which had asserted that he was a Communist Party member.66 Ken Owen, a prominent newspaper editor, went so far as to send someone to research the files at the Kremlin to look for evidence, but to no avail.67 After Arthur’s death, the now-legal South African Communist Party issued a statement claiming him as a member – but it subsequently withdrew the claim in the face of sharp rebuttals by Arthur’s surviving colleagues and friends.68 Among them was George Bizos, who declared: ‘Arthur was a democrat. There were no secrets between Arthur and myself. I know that Arthur was not a member of any political party. He would not join any organization that would place any impediment to his absolute independence.’69
Paul Trewhela, who spent some time in jail with Bram and fell out with the Communist Party, finds sufficient reason to believe Arthur was a Communist in the statement by Jeremy Cronin of the SACP that Arthur ‘was an SACP delegate to the CODESA (Convention for a Democratic South Africa) negotiations back in 1991’ – and in Arthur’s failure to deny this assertion.70 In fact Arthur had denied the assertion that he was a Communist, in insisting on the erratum page just mentioned, and Cronin himself, for his part, said that the Party ‘fully accept[ed]’ that its claim of Chaskalson’s membership was mistaken.71 But there was in any case no reason for Arthur to deny this assertion; representing a party is not the same as joining one, as advocate Paul Hoffman pointed out.72 In fact, well before CODESA, in 1990, Arthur had already joined the Constitutional Committee of the ANC. Undoubtedly Arthur was committed to the ANC’s cause in the negotiations, but he did not join the ANC.
To me, the comment by Arthur’s close friend and colleague Geoff Budlender, responding to a newspaper article by Tony Leon (former head of the Democratic Party), is compelling (and it’s worth adding that Leon himself, when I spoke with him, implied that he had misunderstood the circumstances when he wrote):73
It is matter of public record that Chaskalson was never a member of the SACP. The question of his political affiliations arose in the Sarfu case, when Louis Luyt applied for him and several other members of the Constitutional Court to recuse themselves. Dr Luyt’s attorney wrote to Chaskalson calling on him to respond to a series of questions relating to the recusal application. In his reply, Chaskalson stated: ‘For a brief period while I was a student I was a member of the Liberal Party. Apart from that I am not and have never been a member of any political party.’
So if Mr Leon asserts that Chaskalson was a member of the SACP, he is asserting that Chaskalson, acting in his capacity as president of the Constitutional Court, deliberately lied to a litigant before the court on an issue that was central to an application for his own recusal.74
It is true that admirable men, such as Walter Sisulu and perhaps Nelson Mandela himself, did conceal their Party membership – but the world in which they made their choices, the world of revolutionary politics, was not Arthur’s world. Like Budlender, I cannot believe that Arthur would have taken such a step.
But what were the lessons that Bram’s life imparted to those, like Arthur, who would make their life in the law over the coming decades? Undoubtedly there were many. Fischer gave much and took little, and his example of humility and commitment must have been tremendously inspiring. I want to focus here, however, on the issue that the final months of Fischer’s freedom so vividly posed: when is it morally right for a lawyer to violate the law? We’ve already seen Fischer’s answer, as he formulated it in his statement from the dock during his trial: ‘when the laws themselves become immoral, and require the citizen to take part in an organised system of oppression – if only by his silence and apathy – then I believe that a higher duty arises. This compels one to refuse to recognise such laws.’75
We can also understand Fischer’s answer in a different way – by taking account of what laws he in fact did violate. His colleagues in the Rivonia case understood that Fischer might well be guilty of crimes under the Suppression of Communism Act and the Sabotage Act, and they knew, of course, that he had estreated his bail. They also knew that he had undertaken the defence of the accused in the Rivonia case despite being himself involved in some way in the events taking place at Rivonia; they hadn’t known this before the case began but it had become evident during the trial. Thus they knew that Bram had departed at least to some extent from ordinary legal ethics, for a lawyer himself implicated in the acts for which his clients are on trial must face a potential conflict of interest between his own legal fate and that of his clients. When they realised this – at the moment that they saw a piece of paper with Bram’s handwriting on it being presented in court – their reaction, Joel Joffe said, was admiration of Bram’s bravery.76
But it seems unlikely that Arthur and his colleagues were fully aware of how far Bram had departed from the law. His biographer reveals that Bram had followed his commitment to his clients’ political cause very far indeed, and memoirs published since then have added additional details.
Outside the trial itself, Bram helped two Rivonia prisoners, Goldreich and Wolpe, to flee the country; he may also have given prior approval to their escape from jail. He also urged one of his Rivonia clients, Denis Goldberg, to try to escape (which turned out to be impossible).77 He encouraged Bob Hepple, who had been arrested at Rivonia but now was being called by the state as a witness for the prosecution, to flee the country, and provided him with ‘the detailed plans for the escape’. Hepple, himself an advocate, writes that he met secretly with Fischer to discuss his options. ‘This is a highly dangerous undertaking for us both. According to the rules of professional conduct, he should not be talking to a potential state witness. But I know that Fischer places his moral obligations to his “family” of political comrades above the rules he would strictly observe in an ordinary case.’78 Fischer also disposed of a car that had been used by Denis Goldberg, to avoid its being found at a cottage that was being used as a ‘safe haven’.79
Fischer’s law-breaking also extended to the trial itself. Since he had himself been involved in the debates over Operation Mayibuye, he must have known the truth about Govan Mbeki’s view that this proposal had been adopted, and so he must have known that the accused were testifying falsely to obscure this. Since it was Fischer who settled on the legal strategy of denying that Operation Mayibuye had been adopted, it seems very probable that he encouraged the accused to testify as they did. Perhaps most remarkably, at trial he took documents offered in evidence by the state that suggested potential targets for sabotage and passed on the information to his underground Communist Party colleagues, along with similar suggestions from some of the accused.80 In other words, he used his position as a defence lawyer to assist in the commission of further crimes. Denis Goldberg, not a lawyer, saw the choice Bram had made clearly: ‘Clearly there was a conflict: Bram was senior counsel for the defence, therefore part of the state machinery, while being a valued comrade. He resolved these conflicts in the only way consistent with
