Nearly twenty years ago I wrote an article about Bram Fischer’s law-breaking, under the title ‘To Live outside the Law You Must Be Honest: Bram Fischer and the Meaning of Integrity’. I argued that Fischer’s choices may not have been the best ones, but that they were ‘the morally justified choices of a remarkable man’.
Though he violated many of his obligations under the law, he did so out of obligation rather than out of indifference to it. In countless ways, he honoured the bonds between people, and the obligations of humanity; his rigorous understanding of those ties led him to his fate. In this important sense, he always remained honest – faced with excruciating choices, he was prepared to take steps that were illegal and covert but only in the service of principle, in a lifelong effort to be, in his own qualified but determined words, ‘as honest as it’s possible for a human being to be’.82
I also asked, however, what the impact of Fischer’s choices might have been on other lawyers, and ultimately on the rule of law in a post-apartheid South Africa. Did his example, however impressive in and of itself, potentially teach others to disregard the bounds of law for more selfish reasons? This is a question that cannot be definitively answered – and even a rough answer to it may only emerge over the years, as post-apartheid South Africa pursues its own destiny. But I did argue, and with Arthur very much in my mind:
Many anti-apartheid lawyers, even in the midst of apartheid’s rule, remained deeply convinced of the moral significance and value of law. For these lawyers, Fischer’s life surely did not teach the lesson that law could be casually dispensed with in order someday to restore law. I suspect that, just as his gentle, self-effacing style of lawyering may have helped shape a generation of South African anti-apartheid lawyers’ courtroom tactics, so his decisions to violate the law out of principle contributed to many principled lawyers’ determination, not to disregard the obligations of legal ethics, but to fight relentlessly and courageously to overturn the world of apartheid. Whether or not lawyers like this ever felt themselves obliged to depart from the law – not widely and habitually but only, as Fischer did himself, in circumstances of surpassing moral crisis – the lesson they brought to the new South Africa would not have been disrespect for legal order. Rather they would have sought, and did seek, a Bill of Rights, as Albie Sachs writes in his remarkable memoir, to eliminate the horrors that ‘compelled the most honest amongst us to become the biggest dissemblers.’83
Did this appraisal capture Fischer’s impact on Arthur correctly? I asked Joel Joffe about the issue of Bram’s breaking the law for moral reasons, and he responded by asking if I had read Bram’s speech from the dock about this, which I have already quoted. He went on to say that he and Arthur saw this issue as Bram had, without their really having had to say much about it to come to this understanding.84
Arthur also wrote to me about Bram in May 2001, after I sent him a draft of this article. He spoke first about lawyers and law-breaking:
I am sure that many if not most lawyers have broken the law at some stage of their careers. Parking in a no parking area, breaking the speed limit while driving, buying liquor from an unlicensed restaurant, and a range of other transgressions which might be regarded as minor or possibly as the contravention of laws that were not binding on the conscience of the particular lawyer. No doubt gay lawyers and judges broke the law when same sex relationships were criminalised. And many South African lawyers would have broken apartheid laws concerned with residence, provision of liquor to black friends when that was prohibited, employing black workers without a permit to do so, hiding people from the police or helping them to escape, etc. etc. One can multiply the examples.85
The sense that this passage conveys is that Arthur took it for granted that ‘many South African lawyers’ would have broken apartheid laws, ranging from laws that created the routine injustices of apartheid, to those that in decent societies would be entirely appropriate but that in South Africa functioned to support apartheid’s oppression. Arthur and Lorraine themselves had sheltered a fugitive, and Arthur had helped Nelson Mandela move around while underground – so it seems fair to read Arthur here as speaking about himself as well as other lawyers. What justified such conduct? Arthur answered:
The point is, I think, that there is a distinction between criminal conduct that reflects dishonesty, and conduct that does not. In Bram’s case, there was no question of dishonesty. Everything he did was from a principled position. Whether you agree with him or not, it is difficult not to admire the consistency in his conduct, and the integrity which led him to place principle above personal security and well-being.86
Arthur’s point in focusing on dishonesty here, I believe, is that Bram acted out of principle rather than from some lesser motivation. I don’t think he meant to say that any act involving false statements, for example, was unjustifiable, because later in his email he suggested a comparison of Fischer’s actions with ‘members of the resistance against the Nazis who committed any number of “crimes” in the execution of their resistance. Apart from the acts of sabotage, they created false documents, stole property [from] the Germans, lied about their activities etc. There may even have been lawyers amongst them.’87 Surely it is, indeed, inconceivable that someone who created false documents to save Jews from extermination thereby demonstrated ‘dishonesty’.
That Arthur recognised circumstances in which even the creation of false documents or the telling of lies – acts normally taken to reflect dishonesty – could be morally justified is hardly extraordinary. It is also worth noting that Arthur did not include these actions in the list of the acts of law-breaking that ‘many South African lawyers’ would have committed. A person who violates the law out of principle cannot violate all laws; he or she must assess whether principle justifies the violation of each particular law that comes into question. If legal work can be fruitfully done without lying, then lying is not justified – even if other acts, perhaps at first blush graver than lying, such as shielding fugitives from the police, are quite legitimate. Arthur’s email does not suggest that he or those who shared his convictions considered their preparedness to act falsely as anything but a very last resort.
That still leaves considerable room for manoeuvre. Rules might be obeyed in form but not in substance – as in the Rivonia advocates’ selection of their attorney, who in turn formally selected them. Clients whose testimony might not have been true could still be represented as long as the lawyer did not know that their testimony was false – and even if the lawyer, by advising the client about the legal situation that he faced, might have educated the client about what falsehoods could be to his advantage. For Arthur, though not for Bram, that may have been the understanding he had of the Rivonia clients’ testimony on Operation Mayibuye. And in years to come, Arthur and the other lawyers who handled political cases in South Africa all seem to have tacitly concurred in accepting the financial support of the International Defence and Aid Fund, which for many years delivered its support – by then illegal under South African law – in the guise of donations from individuals of good will.
Arthur’s friend and Legal Resources Centre colleague Geoff Budlender similarly reflected on the Defence and Aid funding. In the NUSAS trial (which we will look at in Chapter Nine),
a letter arrived from [a] … solicitor in London, who said I have a client in Geneva, … who’s a professor … who’s very concerned about academic freedom … and … and he wants to support academic freedom in South Africa. I believe you have some clients and … er … what’s the case gonna cost? What everybody knew then was that it wasn’t from the professor from Geneva … it was obviously from the [Defence and Aid] fund.88
Budlender, who was an articled clerk at the time, commented: ‘I don’t think anyone thought too hard about it. Well, I didn’t. I was a baby in the game … Arthur must have thought about it. He must
