Arthur Chaskalson's last public address was just weeks ago.  It expressed two qualities he valued so highly in others. The first is a relentless rationality. The second is that law is nothing if it is not underpinned by the moral commitment of those who work it.

Speaking to a packed audience of the Cape Law Society in Kimberley, he spoke out on the Legal Practice Bill. He did so in the tradition that judicial reticence on public issues ends when it comes to the rule of law itself. He said that the structure the Bill proposes opens the door ‘to important aspects being controlled by the executive' and that this was not only in conflict with international legal standards but was ‘inconsistent with an independent legal profession'.

The challenge he issued to all South African lawyers was twofold.  Firstly, he called upon the legal profession to do what he called its duty, no less, ‘by raising its voice against measures calculated to erode' its independence. In its present form, on his meticulous analysis, the Bill does exactly that. But he also challenged the profession in another respect. It ‘would have no right to assert the public interest if it were to serve only the elite'. To the last he stood with those who think it law's duty to afflict the comfortable and to comfort the afflicted.

Chaskalson graduated B Com LLB cum laude from the University of the Witwatersrand in 1954. He was also an outstanding footballer, playing not only for Wits but for the combined South African universities team. Called to the Johannesburg Bar in May 1956, he took silk in July 1971.

In 1978, in the words of Sydney Kentridge, Chaskalson ‘stepped out of a brilliant practice' to take up the modestly-salaried position of national director of the Legal Resources Centre. In June 1994 he was appointed the first President of the newly-established Constitutional Court, and following the death of Ismail Mahomed in 2001, Chief Justice. He retired from active duty in 2005, but continued to deliver lectures and to advise international institutions concerned with justice both in South Africa and across the world.

Chaskalson's professional life was marked by three stages. First he was the most cerebral of advocates. His manner was formal, even cold - a devastating cross-examiner, clear but soft-spoken in argument. His manner may have dissuaded an easy camaraderie, but he was a natural leader at the Bar. Twice chairman of the Johannesburg Bar, and for five years Vice-Chairman of the General Council of the Bar, he led South Africa's advocates in innumerable confrontations with the Vorster then Botha governments over legislative and executive measures striking at human rights and an independent administration of justice.

As a young junior, he offered his services in the Rivonia Trial. His calibre was immediately apparent. Cool and analytical as he was at all times, he had, it progressively became apparent, a deep-seated loathing for injustice and cant.

It was these qualities which made it inevitable that he would move to a life beyond a lucrative practice. Diffident and private, always embarrassed when he was made the focus of attention regarding human rights work, he was reluctant to explain quite why he took that path. A clue is a passage in Albert Camus' Notebooks, which he marked up:

‘For thousands of years the world has been like those Italian paintings of the Renaissance where, on cold flagstones, men are tortured while other men look away in the most perfect unconcern. The number of the "uninterested" was immense compared to the interested. What characterised history were the number of people who were not interested in other people's misfortunes.'

He wanted to live his life differently. Thus began its second phase.

His successor as Chief Justice, Pius Langa, said he never knew anyone who worked harder. This was not only true in his founding leadership of the Constitutional Court, but was particularly true of his years leading the LRC. He was at the forefront of the challenge to influx control, successfully arguing the challenges to the Bantu Urban Areas Act, first in Komani, then in Rikhoto. The nature of his work at the time is best summed up by the comment of a bewildered rural client of the LRC about government officials: ‘the trouble is, they don't work with law.'

Chaskalson led a new generation of lawyers who, through the courts, forced spaces between the flat stones of oppressive legislation. It was a time of great legal creativity; he inspired many by his courage and example.

This phase of his life developed into the third. Earlier than most, he saw the need for an entrenched Bill of Rights against which both executive action and laws passed by Parliament could be tested. For him the simple essence of the rule of law is that all power is constrained by limits set for it and that it is the task of the courts to patrol its boundaries. He became, with Professor Marinus Wiechers and Ismail Mahomed, a drafter of the Namibian constitution following the Turnhalle talks. He was a natural leader in South Africa's constitution-making process, and an early advocate of a separate, new constitutional court.

There was thus little surprise when Chaskalson was made its first President. Early sneers about the Court being ‘the Marx Brothers' - a reference to its perceived left-leaning composition - were soon disproved. Both a legislative and an executive act of President Mandela were swiftly set aside as not compliant with the Constitution.

The Court contained mercurial personalities as well as great talent. Chaskalson managed all this in his quiet reflective way. His ascendency, without assumption, was clear at every hearing. Rex Gibson, editor, vividly described him as a ‘serene secretary bird, head inclined, mild eyes rimmed by heavy spectacles, arms folded like wings, long legs crossed in front of him'.

Chaskalson's deep professional experience across all fields of commercial and public law gave him the ability as well as the confidence to write or contribute to the Court's leading judgments. Ultimately, their theme was a passage he liked to quote from Judge Louis Brandeis:

‘In the government of laws existence of the government will be imperilled if it fails to observe the law scrupulously...for good or ill, it teaches the whole people by its example. If the government becomes a law-breaker, it breeds contempt for law. It invites every man to become law unto himself.'

Chaskalson is survived by his wife, Dr Lorraine Chaskalson, sons Matthew and Jerome, and grandchildren.

Jeremy Gauntlett SC

(Gauntlett is a past President of the Cape Bar and Chairman of the South African Bar)

This article first appeared in Business Day.

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