Friends have queried whether the South African Communist Party was accurate (and/or truthful) when it stated on the same day, after his death, that former Chief Justice Arthur Chaskalson had been "a member of the underground SACP in the difficult years of the 1960's", and had "represented the SACP at the CODESA negotiations in the early 1990's."
A fine and independent fellow jurist, Advocate Paul Hoffman, Senior Counsel, of the Institute for Accountability in Southern Africa, has taken issue with my article as well.
Under these conditions, I should give sufficient reason for having written my article "The secret life of Arthur Chaskalson" in the way I did (Politicsweb, 3 December), or else apologise to his family and the public. My article crucially reproduced the official SACP statement of 1 December at its face value.
Four days after his death, a great deal remains unknown. I am not aware of any public statement so far on the matter of his reported membership of the SACP by a member of Judge Chaskalson's grieving family.
The crucial factor is not, however, the statement by the SACP made after his death, which Mr Chaskalson could not confirm or deny.
The crucial factor at this stage is rather a public statement issued ten months ago by Jeremy Cronin, the deputy secretary-general of the SACP, published on the party's website, Umsebenzi Online, when former Chief Justice Chaskalson was alive.
In an article headed "The mines, the media, the judiciary... an epidemic of misguided debates" published on Umsebenzi Online on 9 February this year - ten months before Mr Chaskalson died - Cronin wrote: "The former chief justice, Arthur Chaskalson recently made a very important intervention into this general debate [concerning the future of the mining industry in South Africa - PT]. Chaskalson (who, by the way, was an SACP delegate to the CODESA constitutional negotiations back in 1991) was speaking at a UCT law workshop in late January."
The full paragraph reads:
"The former chief justice, Arthur Chaskalson recently made a very important intervention into this general debate. Chaskalson (who, by the way, was an SACP delegate to the CODESA constitutional negotiations back in 1991) was speaking at a UCT law workshop in late January. Quoting extensively from the preamble to the Constitution and from landmark Constitutional Court judgments, Chaskalson lucidly debunks the notion that the Constitution is somehow an impediment to radical transformation. He correctly traces its origins to the traditions of the liberation struggle itself, including the 1955 Freedom Charter and the 1989 Harare Declaration.
"Chaskalson goes on to argue that the Constitution, far from simply limiting the state, places an obligation on the executive to actively transform our society. The Constitution, he says 'calls for positive action to confront the apartheid legacy of poverty and disempowerment, and for building a truly non-racial society committed to social justice. Transformation contemplates an improvement in the lives of people, households and communities, achieved over time by institutionalising policies, programmes and projects to that end.'"
Cronin states that the law workshop at UCT took place "in late January." This leaves at most three weeks between Chaskalson's address and the publication of Cronin's article last February.
Published on the official SACP website while Chaskalson was alive, and within weeks of his having addressed the law workshop at the University of Cape Town "lucidly debunking" an alternative viewpoint, this statement in my view gives sufficient ground for assuming that his membership of the SACP was the case, unless this can be proven otherwise.
The official statement of condolence issued on the day of his death (Saturday 1 December) by Jeff Radebe, Minister of Justice, further refers specifically toChaskalson having died after a "short illness".
My assumption is that if Chaskalson was well enough to address the law workshop "in late January", he was well enough in February to have taken issue with Cronin's statement concerning his membership of the SACP, if that was false.
Directly appointed president of the new Constitutional Court by President Nelson Mandela in June 1994, Chaskalson was a very major public figure, with wide access to information, especially in the nature of a statement concerning himself made by another public figure.
Jeremy Cronin is also deputy minister of Public Works, in addition to his post as deputy secretary-general of the SACP. This gave his article on Umsebenzi Online a semi-governmental status.
No jurist has had greater eminence in the state since 1994 than former Justice Chaskalson, and no judge was closer to Emeritus President Mandela. If a jurist of his eminence cannot be informed about a published statement of this nature relating to himself made by a government minister who is deputy secretary-general of the SACP, and does not refute that statement if it is false, then the country is in a worse state than one had thought.
He had the opportunity to correct a significant error of fact concerning himself and his place in South African political and juridical history - if that was in fact the case - but did not take it.
We are asked to believe that non-response was the appropriate behaviour for a senior advocate. I do not believe it, having had the good fortune to spend seven months on remand and on trial in 1964/65 represented by very able counsel, and having later shared a cell with my co-accused, Advocate Bram Fischer QC, in 1966/67.
Non-response by a practised advocate to such a significant statement made in public concerning himself, such as Cronin's remark, if it were false, does not strike me as credible. Correction of error could have been made in the gentlest of phrases. Yet no denial was made - so far as we are aware.
On balance, I take Jeremy Cronin's remark of 9 February 2012 and the official SACP statement of 1 December 2012 as factual.
There is also this to be said. As a former member of the SACP (1963-67) and a lifelong student of its history and practice, I have never heard before now of the SACP claiming a deceased person to have been a member, when that person was not.
On the other hand, secret membership of the SACP in the 1960s of a person active in a non-Communist and even anti-Communist organisation was a settled practice.
The most secure factual proof of this relates to Stephanie Kemp, the former wife of Judge Albie Sachs.
In November 2008 Ms Kemp published a resignation letter from the ANC (she resigned also from the SACP), stating that she had been "recruited into the South African Communist Party in Cape Town in 1962."
At her trial in 1964, however, the former president of the National Union of South African Students (Nusas), Adrian Leftwich - very active in the Liberal Party and a senior figure in a distinctly non-Communist sabotage organisation, the National Committee for Liberation/African Resistance Movement (ARM) - said he had recruited her to the ARM "in March, 1963." (Miles Brokensha and Robert Knowles, The Fourth of July Raids, Simondium, Cape Town, 1965. p.130)
Ms Kemp did not reveal her membership of the SACP to Leftwich. Nor did she reveal her membership of the SACP to six women members of the SACP who were co-defendants in the same trial as myself, even when she served a sentence with them as a fellow prisoner at Barberton Women's Prison in 1965/66.
There is not a single reference either to Stephanie's SACP membership in Albie Sachs's book, Stephanie on Trial (Harvill Press, London, 1968), published after they had married in Britain.
Hiding CP membership has been normal. The bedrock to the puzzle surrounding Chaskalson is the ingrained secrecy of the SACP.
One need only look to the pinnacle of South African history of the past half century.
It took until September last year, with a paper, "The genesis of the ANC's armed struggle in South Africa, 1948-1961", by Professor Stephen Ellis, delivered at the "ANC at 100" conference at Wits, to establish conclusively from multiple independent sources that Emeritus President Mandela had been a founder member of Umkhonto we Sizwe as a member of the SACP in 1960/61.
The evidence is accessible in Professor Ellis's subsequent history, External Mission: The ANC in Exile 1960-1990 (Jonathan Ball, 2012). It took more than 50 years for this to be proven beyond doubt.
The fact is, that as an organisation which prides itself on being a corps d'elite, the CP has never - before now - made a habit of claiming non-members as members, as if it were a group of gossipy wannabe celebs.
It is principally not a question of trusting whether or not Jeremy Cronin has been "economical with the vérité." On the basis of the information available so far, the most secure method of approach is the historical practice of the political organisation he represents.
There does need to be further research as to whether or not Arthur Chaskalson attended the Codesa talks in 1991 as a member of the SACP, and whether he was or was not a member of the party in the grim years of the 1960s.
The onus, however, was on Mr Chaskalson (or his family) to take issue with this matter over the past several months, if they disputed Cronin's statement. I am not aware of any evidence that this was done.
As with so much in South Africa, there is an issue of accountability here.
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