The piece by Paul Trewala carried in politicsweb on 4 December attracted a fair amount of commentary, not all of which bears any relationship to the facts. I do not know whether our dear departed Chief Justice was a communist or not, and I don't care if he was either. Rather than attach pejorative labels, the commentariat ought to concentrate on the facts and judge the man on his track record instead by applying some or other label to his undoubted contribution to the achievement of constitutional democracy under the rule of law in SA.
I first met Arthur Chaskalson in the early seventies. He was a newly promoted silk at the Johannesburg Bar and I was a lowly articled clerk in a big firm of attorneys in that city. We worked together on commercial matters. I found him rather austere and even a little shy, given his status as a well respected advocate at the time. He was a member of the legal team during the Rivonia trial, in which Braam Fischer QC was a leading light. Fischer was a leader of the SACP and went to jail for his "communistic activities".
Whether Fischer was an influence in the thinking and leanings of Chaskalson is hard to say with any certitude; the former was incarcerated by the time I met the latter and the cut and thrust of commercial law did not lend itself to philosophical or even political discussion. Chaskalson was good at what he did, he enjoyed the confidence of his peers sufficiently to be elected to leadership positions at the Bar, and it came as a surprise and even disappointment to many when he turned his back on the topics of greed, anger and stupidity which take up the professional time of senior counsel in favour of setting up the Legal Resources Centre at the end of 1978.
By doing so, he proved that he was not venal; his stipend at the LRC was a fraction of the fees he could command at the Bar. Some may interpret this as evidence of communist leanings, but others have idealistically made the same mid career moves without any such inference being drawn against them.
It is certainly not correct to characterise Chaskalson as a communist for representing the SACP at Codesa. Advocates do not have to believe in the ideas of their clients, nor do they have any choice in the matter of whom they may represent. This is called the cab rank rule and it is a salutary one. An advocate who represents the interests of rail commuters is no more a rail commuter than one who represents the communists is a communist.
The contribution of Chaskalson to the new constitutional order in SA is a matter of record. Not only is he a founder of the new dispensation, he led one of its major new institutions, the Constitutional Court, with distinction until his retirement in 2005. He has been internationally recognised for his contribution to the promotion of the rule of law, a concept unknown and unheralded in communist regimes.
Only last year in Barcelona, Chaskalson was honoured by the World Justice Project, at its forum held there, for his role as a leading light in the world for his contribution to the work involved in promoting the rule of law. The WJP is funded in part by the Gates Foundation and by its American lawyer, Bill Neukom, both unlikely sponsors of a dyed in the wool communist. The decision to honour Chaskalson was clearly based on his pro constitutionalism track record. Constitutionalism, with its checks and balances on the exercise of power, its reliance upon an independent judiciary and its embrace of the doctrine of the separation of powers, is the antithesis of communism.
None of these features are present in communist states. The hegemony of the party and control of all the levers of power by the party is how communism operates, and it has failed to produce any success stories world wide. The fact that the people living in communist states flee to escape their lot at home speaks volumes.
It is also not without significance that after his retirement Chaskalson continued to take an active interest in the new order he had helped create by delivering papers, making sharp comments regarding anything subversive of the rule of law and attending conferences large and small to spread the word regarding constitutionalism.
Earlier this year at the Students for Law and Social Justice conference in Hermanus he described our home grown constitution as one which is based on the notions of what he called "social democracy". When it was politely suggested to him in January this year that the problem in the politics of the country is that the values of the National Democratic Revolution (pursued by many in the ANC who still buy communist dogma) are inconsistent with constitutional principles of the product of SA's national accord, he smiled enigmatically and answered "but I thought the values of the NDR are included in the Constitution".
Clearly hegemonic control of all levers of power is not what the constitutional order envisages. Chaskalson was deftly avoiding a straight answer to a politically loaded question. Such was his stature that nobody present at the UCT administrative law conference took him up on his answer.
On his track record there is little to suggest that Chaskalson was a member of some secret club within a club. He was, to the last, fiercely defending the independence of the bench and legal professions. These are anathema in communist regimes. Unless the theory is that he was in some form of deep cover doing this, it seems unlikely that any youthful dalliance he may have had with communist theory lasted into his maturity.
He is accurately described as a worthy champion of human dignity, the achievement of equality and the enjoyment of the freedoms guaranteed in our Bill of Rights. This would include the freedom to associate with communists and to espouse communist ideas, whether or not he agreed with them.
Click here to sign up to receive our free daily headline email newsletter
