Canadian Lawyer

16 M A Y 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m Two institutions helped this troubled country emerge into freedom and avoid complete political chaos and collapse. One is a courageous and vibrant free press, essential to any democracy. The other is an independent legal profession. But the record of the South Africa legal profession has been mixed, particularly during the apartheid years (1948-1990). Some lawyers during that time behaved admirably, fighting for equality and jus- tice, often at great personal cost. Many did not, regarding themselves as impar- tial technicians and immersing them- selves in legal details while ignoring the evil nature of the regime they served. Queen's University Belfast and Ulster University, in a series of country studies (Tunisia, Palestine, Israel, Chile, Colom- bia and South Africa), have explored the role of lawyers in transitions from violence or authoritarianism to some- thing better (see lawyersconflictandtran- sition.org). They published their report on South Africa in December 2016. It describes how, during the apartheid years, many lawyers worked unthink- ingly within a highly formal and legal- istic regime, often described as a wicked legal system, revelling in a dense system of intricate rules. Others — sometimes called "struggle lawyers" — were dissi- dents as well as lawyers. Struggle lawyers challenged the vicious apartheid regime in the courts and sought to protect those who suffered detention without trial and torture. The great Albie Sachs, who after apartheid became a judge of the Con- stitutional Court, South Africa's highest court, has said, "For much of my life, I lived simultaneously as lawyer and as outlaw." The 1998 report of the Truth and Reconciliation Commission of South Africa contained powerful criticism of apartheid-era lawyers. Arthur Chaskal- son, chief justice of South Africa from 2001 to 2005, wrote in 2003 that the TRC condemned the legal profession "for its silence in the face of unjust laws . . . for its failure to make justice available to those who could not afford it, and for its acceptance of the legality of unjust laws." But the TRC also praised some lawyers who "used every opportunity to speak out publicly and within the profession against the adoption and execution of rules of law that sanctioned arbitrary official conduct and injustice." Chaskal- son himself was one of these lawyers. During the so-called Transition Peri- od (1990-94), lawyers had a major role in the drafting of the new South African Constitution (formally adopted in 1996), which includes a bill of rights draw- ing heavily on the Canadian Charter of Rights and Freedoms. The constitu- tion also bestows a variety of socio- economic rights, requiring the state to act to achieve the progressive realization of access to housing, health care, food, outh Africa's peaceful transition from apartheid, a system of legalized racial discrimination, to freedom and democracy (albeit flawed) was one of the great political achievements of the 20th century. The process culminated in 1994 with the election of Nelson Mandela as South Africa's president. But when Mandela left office in 1999, the country's government and the African National Congress, the dominant political party and for many years an engine of freedom, sunk into autocracy and corruption, reaching a low point during the presidency of the incompetent and venal Jacob Zuma, who took office in 2009 and resigned in disgrace this past February. O P I N I O N @philipslayton SCOTT PAGE South Africa's legal architects After apartheid, South African lawyers moved from being immoral technicians to champions of equality By Philip Slayton S T R O U B L E D W O R L D

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