by Andre Brink
What were those circumstances? The mob wanted Jesus dead; their leaders wanted him dead; He himself wanted to die in order to fulfil the prophecies. Pilate, knowing very well that the man was innocent, tried his best to save him. First he discussed the matter with the crowd; then he called in the accused, who told him that He had been born “to witness unto the truth”. But when Pilate pressed Him to define what He meant by “truth”, he received no answer.
So he came to a very sensible decision. He made it unequivocally clear to all concerned that he believed the man to be innocent. But because the circumstances demanded it, and because the crowd made it possible for him to comply by taking the blood upon themselves, he washed his hands calmly and fearlessly and gave the prisoner up to them.
To my mind it is the action of a reasonable man who has a clear view of the demands of his time and who refuses to be influenced by irrational considerations. Let us reflect for a moment on what would have happened if, as a matter of principle, Pilate had decided to protect Jesus. In all probability it would have meant his own downfall. Moreover, he would neither have saved anyone in the process nor done anyone a favour – because Jesus himself wanted to be convicted. He made a clear decision: one can have no doubt about the fact that he both despised the mob and believed in the innocence of Jesus. But at the same time he was sensible enough, having spoken out against the situation, not to be broken by it. I even find a measure of greatness in such a mind.
However, I want to make it quite clear that at that particular stage, during my studies abroad and for a considerable period after my return, I harboured no doubts about the system as such, the grand concept, the philosophy of apartheid. I still regarded the flaws as the unfortunate result of questionable implementation or excessive bureaucracy.
The gradual process of change within me was influenced by numerous factors and individual incidents and although I have no intention of providing the full catalogue I must beg the Court’s indulgence for at least a summary of it and an indication of some of the more important moments from it, as I regard it as an indispensable part of my motivation.
Even on the boat on my way back to South Africa I encountered problematic situations. In this respect I must refer particularly to two friends I made during the voyage. The first was a young Indian doctor on his way back to Durban with his family after specialising in Edinburgh for several years. His name was Mewa Patel, and he was one of the most civilised people I have ever had the privilege to know. He is, of course, no stranger to this Court. On the voyage we spent much time together. Most of our discussions had to do with music in which we were both passionately interested; often we also talked about our country, which we loved in equal measure. What upset me about our relationship was a very mundane, even sentimental, consideration. The fact that, upon our arrival in Cape Town, good friends as we were, we would not be allowed to have a meal or a cup of tea together in any hotel or restaurant. What was more, if I ever had a son and if he were to fall in love with Mewa’s daughter (one of the prettiest and most delightful little children I had ever seen), he would be jailed for it. Such are the small personal, subjective experiences which may prompt a change in one’s entire view of life.
The second person I referred to was a young historian, Dennis Hunt, on his way to take up an academic appointment in Cape Town after receiving his D.Litt. at Oxford. In spite of an English background he was a fervent Nationalist: he even reproached me at times for not feeling strongly enough about certain issues. Shortly after our return I saw him again, a broken man, shattered by the realities of apartheid. Abroad he’d been able to rationalise it, but back in South Africa no evasion was possible any longer. Still, he loved the country too much to consider leaving it. Over a period of two years I saw him decline to the brink of a nervous breakdown. One day he came to me and revealed in the strictest confidence that he’d been approached to join an underground organisation; but opposed as he was to all forms of violence he’d refused. However, that had made him feel that he’d betrayed both Black and White, and he was bowed down by guilt and frustration.
Presumably because of his association with “undesirable” elements he was placed under banning orders soon after, and his passport was confiscated. I tried to encourage him, but found him much too depressed to listen to any reason. And a few months later he fled to Lesotho, then still the colony of Basutoland, where his nervous condition deteriorated. One day a trivial incident brought about the final collapse: he broke his glasses, without which he could barely see enough to find his way. There were no opticians in Maseru. He lacked the money to fly to London; and he couldn’t travel to Bloem fontein for fear of being arrested when he crossed the border. As soon as I learned of his condition I wired him money for an air ticket to London. But it came too late. That very morning he’d committed suicide by jumping from a cliff. He’d always suffered from an acute fear of heights.
There were numerous other incidents which contributed to my change of heart. Especially since I’d started practising as an advocate in Cape Town I had an opportunity of acquainting myself with the innermost forces at work in our society, in a way which appalled me. During my years of doubt the one certainty I’d been able to cling to had been, through the very nature of my work, my faith in the independence and the impartiality of our judiciary. I do not intend it as any reflection on this Court if I confess today that the erosion of this faith was one of the most shattering experiences of my life. It was not restricted to isolated incidents: what was brought home to me over several years was, quite simply, the fact that, through the nature of our framework of laws, the judiciary in this country did not function primarily as an instrument of justice any more but only as an extension of power. It was no longer merely the practice of apartheid I found dubious and, in fact, abhorrent, but the entire system itself and the very principles on which it is based.
I can remember some of the cases Bernard must have had in mind when he wrote that, and his reaction to them. The fact that they were mostly ordinary criminal cases – involving straight decisions of right or wrong, guilty or not guilty, on the basis of factual evidence, far removed from the dangerous grey area of political persuasion or attitude or interpretation – made it all the more agonising and obvious to him. And I must place it on record that in many respects I shared, and still do, his sense of outrage. The difference between us lies in the consequences we allowed our indignation. In his case the trials involved became, as he pointed out in court, factors contributing to his final decision in favour of active resistance. Whereas I, on the other hand, continue to believe that there are other channels for action available to one, aimed at a peaceful evolution from the inside of the system, as opposed to dramatic confrontation which can only lead to dangerous polarisation and destructive conflict.
There were, for example, cases of rape and immorality, a few of which I may summarise here, chosen at random from several he discussed with me over the years. Right in the beginning of his career he acted pro Deo for a Coloured who’d attacked a young White couple while they were making love in a car on Signal Hill one night. I believe he knocked the man unconscious with a length of lead piping or something, then dragged the girl into the bushes where he raped her repeatedly. Bernard produced psychiatric and social welfare evidence to explain the wretched circumstances in which the accused had found himself; in addition, if I remember correctly, he revealed a motive of vengeance, showing that the girl’s father had sacked him and given him a severe beating the previous week. In spite of this the man was sentenced to death.
A year or so later Bernard was asked to defend a White man, a wine farmer from Paarl, who’d summoned a ten-year-old Coloured girl to his house one Sunday morning when his wife had been away, and raped her. When she started screaming he broke her jaw. The case was postponed several times because the child had to spend months in hospital. When it finally came to court the farmer was given a suspended jail sentence and a fine of a few hundred pounds.
“A
ll it proves is that you’ve become a much better advocate in the meantime,” I told Bernard. “You know all the loopholes by now.”
“How do you explain the fact that no White man has ever been hanged for raping a Black woman while the opposite happens all the time?”
“You must bear in mind the cultural and social differences at work in each case,” I reminded him. “For a Black it means nothing to sit in jail for a year. For him it’s a holiday with free food and lodging. In the case of a White even a few weeks can be traumatic.”
“I’m talking about life and death!” he said. “And if you insist on social factors, fine. The other day I defended two people on an Immorality charge: not one of the disgusting run-of-the-mill little cases of a quickie in a garage or somewhere in the bush. This was a Coloured teacher who’d had a relationship with a White secretary for over a year. If the law had allowed it, they would have got married.”
“Why didn’t they leave the country?” I asked.
“They did consider it for some time. In the end they realised they couldn’t make a living anywhere else. They were too deeply attached to the only country they’d known from birth.”
“In that case they went into it with their eyes open. So they had no reason to complain.”
“They didn’t complain. And they weren’t ashamed to admit in court that they were in love. But when it came to the sentence, he got six months while hers was suspended. The judge found that she’d been punished enough already by the mere fact of becoming known to the public as a person who’d sunk so low as to sleep with a Coloured.” It took him a while to recompose himself before he added quietly: “When he came out of jail six months later they both committed suicide by gassing themselves in a car.”
“You can’t blame the court for that!”
“I only mentioned it as a piquant afterthought,” he said. “Shall I tell you more?”
“Rather not.”
“Hear no evil, see no evil!”
Much later, there was another trial in Johannesburg which upset him deeply. I must say, the whole thing struck me as an unfortunate and unnecessary mistake. (But surely not sufficient motivation for plunging the country into the chaos of revolution!) It had to do with a foreigner, an Italian if I’m not mistaken, who’d emigrated to the Transvaal shortly after the Anglo-Boer War, and married a Black woman a year or so after the Union had been formed in 1910. At the time such marriages were, of course, perfectly legal. Like other couples in the same position they settled in Sophiatown, where he stayed on after the death of his wife. When the suburb was declared White and the inhabitants were removed, he went to live with one of his daughters in another township; Albertsville, I believe. By that time the old man was already an invalid. A few years later, it must have been about ’62, Albertsville was also proclaimed as a White area and the daughter, classified as a “Coloured”, was evicted from her home. The Resettlement Board, however, stipulated that the old man, then in his eighties and confined to bed, couldn’t accompany her as he was White.
Bernard came to Johannesburg to handle the application for a court injunction. But before the end of the court hearing the old man died.
“So all your efforts have been useless,” I told Bernard afterwards.
“My God, Martin! They knew he was old and sick. Couldn’t they have waited just for a few months to let him die in peace?”
“I agree that the whole thing has been totally unnecessary and sordid. But you can’t expect them to make a law covering every exception.”
“How many hundreds and thousands of ‘exceptions’ do you think there are?” he asked angrily. “Whole societies uprooted and resettled. In this particular case we had the co-operation of the Afrikaans press, because it so happened the old man was White. But haven’t you noticed the deafening silence about all the others who, unfortunately, are Black, which means they can’t be measured in column-inches?”
At the time I thought of it only in terms of a difference of opinion in conversations, discussions, heated arguments. Only much later, the day he landed in court himself, did I discover, in retrospect, something of a consistently developing pattern, something “inevitable” – that is, seen from his point of view. Personally, I still feel convinced that it could have taken a different and more positive course, perhaps if he’d allowed himself to settle down and come to terms with himself and the world, relinquishing the unnecessary crusades; if, for instance, he’d submitted to the stability and discipline imposed by married life.
All right, I know he did get married in the end. But he was divorced after less than a year. In fact, it coincided with the case of the old Italian. But a marriage lasting only a few months is a far cry from getting settled. A pity. Because, in drawing up his balance sheet, the only finding one can come to now is of a tragic loss and an unnecessary waste.
There was another case I should perhaps refer to, one of the most sensational of his career. It involved a Cabinet Minister’s son, accused of “salting” a newly opened mine in South-West Africa. I’d heard about it long before the news became public, because at one stage I’d also been interested in the mine in question. So I knew about the tremendous pressure exerted behind the screens to keep the case out of the courts. But after nearly a year of intense under-cover activity the bombshell exploded (which confirms, doesn’t it, the independence of our judiciary which Bernard so unfairly tried to implicate in his statement). When it became clear that nothing would keep the matter from being made public, Bernard was approached to defend the Minister’s son. His first reaction was a point-blank refusal. I pride myself with contributing something to his final change of mind.
“The bastard is as guilty as hell,” he said when the matter came up during one of his visits to us, late one night after Elise and the children had gone to bed.
“You’ve defended guilty bastards before now.”
“Usually with good reason.”
“Including that wine-farming rapist?”
“That was in the days when I had to gain as much experience as possible: and there’s nothing quite as stimulating as a hopeless case. Perhaps there was the added challenge of trying to find at least something good in a man appearing so thoroughly evil. A question of morality.”
“What’s morality or immorality got to do with the law? Your duty as an advocate is to make a success, juridically speaking, of any case that comes your way. It’s an intellectual exercise, like chess.”
“Even so it remains my good right to choose whether I want to accept a brief or not.”
“Suppose you manage to get your guilty bastard off the hook in such a way that it may later either help innocent victims or else make it possible for existing laws to be amended to eliminate present flaws? Don’t you think that in itself may be a commendable achievement?”
Whatever his real reasons may have been, he finally accepted the brief and became responsible for one of the most brilliant performances in our judicial history. It seemed absolutely impossible to do something for the accused. Bernard did more than just that “something”: in a dazzling display of juridical gymnastics he succeeded in getting the man acquitted – admittedly only on a series of esoteric technical points, but that was all that was required.
However, when I saw him a month after the trial, just after he’d been elevated to Senior Counsel (no doubt in recompense for his performance in that particular case), much to my surprise I found him in a deep depression.
“What’s the matter?” I asked. “I expected to find you up in the clouds.”
“Now you find me under a cloud.” For a moment I recognised the old impish flickering in his eyes. Then he shook his head. “No, Martin. I’m afraid I’ve dirtied my hands with this sordid business. I feel a traitor.”
“But you were brilliant!”
“If it had anything to do with brilliance it just confirmed what you said before: that the law is no more than a game of chess. And I’m sorry, that sort of academic exercise is not for me.” He was
too perturbed to sit down. After walking up and down for a while he turned back to me. “The worst of it all,” he said, “is the sneaking suspicion that even if I’d fucked up the defence he would still have got off.”
“But you didn’t fuck it up.”
“That’s exactly why they’d hired me. They bargained on the fact that I’d be able to find some technical loopholes which could be used as an honourable excuse for an acquittal. And by accepting the brief I allowed myself to be prostituted.” He stopped behind a chair opposite mine and leaned forward, clutching the back with his hands, his eyes burning into mine. “But I swear to God it won’t ever happen again.”
“Since when are you a God-fearing citizen again?”
For a moment he was off balance. With a brief flash of his boyish smile he corrected himself: “All right, then I swear to whomever may be present that every single brief I accept from now on will help me to strike a blow to the roots of their whole infernal system.”
“‘Their’ system?”
“Yes, ‘theirs’. I can no longer talk of ‘ours’. I refuse to be associated any more with a nation that could devise a system like that with the simple, sordid aim of clinging to absolute power.”
“So you’re washing your hands of it all?”
“Certainly not.” Once again he smiled. “On the contrary, I’m putting on my knuckle-dusters.”
Sharpeville and its immediate consequences also had a profound influence on my attitudes. My first reaction to the eruption of violence was emotional: a regime which depended for its survival on the massacre of peaceful demonstrators, including women and children, I thought, had no right to exist. By that time I was already firmly convinced that neither the Afrikaner nor any other group in the world could claim survival as a “right” on the basis of the simple argument that they existed. Survival had to be earned through the content and the quality of that existence.