Relentlessly Rational

Ask​ a British lawyer which case they particularly associate with Sydney Kentridge and they are likely to say the Steve Biko inquest. Biko was the young leader of the Black Consciousness movement who in 1977 was tortured and beaten to death over a period of days by members of the South African security police who then, with the connivance of police doctors, lied their way through the inquest conducted by the chief magistrate of Pretoria, Marthinus Prins. What people remember is not Prins’s supine and credulous verdict, finding (in barely a hundred words) that Biko’s fatal head injuries had been sustained ‘in a scuffle with members of the Security Branch’, but the exposure by Kentridge’s relentless questioning of the mendacity of police officers who were accustomed to beating detainees, sometimes fatally, without repercussion and then lying about it without challenge. ‘Steve Biko was not the first man to have died while in the custody of the Security Branch,’ Kentridge said many years later in a commemorative lecture. ‘He was, as far as these things were known, the forty-fourth.’

By the time of the Biko case, however, Kentridge was well established as South Africa’s pre-eminent trial advocate, having fought a succession of landmark cases against the apartheid regime with sometimes unexpected success. Born in 1922, he had signed up in 1942 to serve in the South African air force. After demobilisation, he secured a place at Oxford and a generous ex-service grant. He graduated with a first in law but no particular career in view. On his return to South Africa, the bar seemed to him, as it did to many male graduates of his generation, an easy option. In Britain, you didn’t even need a degree. So long as you had some connection with the profession – in Kentridge’s case a barrister friend of his father who was willing to have him as a pupil – and could scrape through the not very demanding professional exams, you could be called to the local bar and become an advocate.

In many of these respects South Africa mirrored England. It did so too in its formal adherence to due process and legality. But in 1948 the mainly white electorate gave the National Party a sweeping mandate to institutionalise and enforce apartheid. As the descendant of Lithuanian Jewish immigrants (Kantrovitch morphing comfortably into Kentridge), Sydney was one of the considerable number of white liberals who, finding themselves on the privileged side of the colour bar, and to that extent beyond the reach of the apartheid laws, became involved in challenging the Afrikaner ascendancy. Most were targeted by the security police, some were killed and a number jailed; but because it remained important to the apartheid regime to maintain the form and appearance of legality, the courts continued to function with a degree of independence. Pragmatically, too, commercial enterprises continued to need high-grade legal advice and representation, and if that meant employing some of their political foes, business was business. As a result, the outstanding Afrikaner QC Bram Fischer, a well-known member of the South African Communist Party, was still able to earn a substantial living.

In this ambivalent situation, two things began to distinguish Kentridge from his contemporaries. One was a principled liberalism, shorn of party allegiance, from which he never strayed. The other was a talent for advocacy – something that is not as mundane as it sounds and has little to do with oratory. There are plenty of competent barristers, but Kentridge was more than this: he was from the start one of those advocates who sense exactly where to pitch anything from a lethal monosyllabic comment to a day-long submission of law. Of the many, often hyperbolic, appreciations of Kentridge’s style cited by Thomas Grant, two seem to me to hit the mark. The future Justice Edwin Cameron, watching Kentridge’s defence in the trial of the dean of Johannesburg under the Terrorism Act, witnessed a cross-examination that was ‘meticulously detailed, but mesmerising’ – a combination far more difficult to achieve than it sounds. Many years later, Nelson Mandela, always precise in his choice of words, described Kentridge’s courtroom manner as ‘understated, controlled and relentlessly rational’.

Having made an early mark as junior counsel for the trade union leader Solly Sachs (Albie Sachs’s father) in a successful challenge to the state’s power to confiscate his passport, Kentridge spent the 1950s building up a mixed practice, ranging from commercial disputes to criminal defences in capital cases. But in 1956 he was swept into the mainstream of apartheid law when 156 of the signatories of the African National Congress’s Freedom Charter were arrested and charged with the capital crime of treason. Kentridge was briefed initially for Joe Slovo, whose efforts to defend himself before the examining magistrate had earned a sentence for contempt of court. Kentridge managed to get this set aside, and the mass prosecution lumbered on. Then in 1957, out of the blue, the prosecutor dropped the case against 61 of the accused, among them Oliver Tambo, Albert Luthuli and Slovo. The magistrate sent the remaining 95 for trial, and Kentridge found himself briefed for the defence alongside QCs of the calibre of Bram Fischer and Israel Maisels. His client was Nelson Mandela.

When the trial, now with 91 accused in the dock, had been running for many weeks, the prosecutor, faced with an order made by the three-judge panel to provide full particulars of his case, abandoned the entire indictment. In its place a fresh indictment was laid against thirty of the original defendants, who were accused of conspiring to establish a communist state by violence. In what was to become known as the Treason Trial, the Crown (prosecutions were still brought in its name) set out to establish that the ANC, whose meetings used to begin with Christian prayers, was a Marxist-Leninist organisation committed to the violent overthrow of the state. The indictment, which ran to more than four hundred pages, sought to establish a conspiratorial web linking a number of individuals, many of whom had never met. The prosecutor, Oswald Pirow, a former justice minister and admirer of Hitler, died unexpectedly one weekend, propelling his junior, Jacob de Vos, into the leading role.

De Vos’s star witness was a professor of philosophy, Andrew Murray. Murray was intended to confer an air of objectivity on the state’s case by explaining to the three judges the insurrectionary ideology lurking in the ANC’s reformist prose. He spent three catastrophic weeks under cross-examination by lawyers as politically literate as he was and a good deal more savvy. Here is Maisels, regarded by Kentridge as the most brilliant of his contemporaries at the bar:

‘Do you not think that the African may well regard himself as oppressed and exploited by the white man?’
        ‘Yes, in certain spheres of life.’
        ‘And this is so whether he is a communist or non-communist?’
        ‘Yes.’
        ‘The black man might well regard the government as reactionary?’
        ‘He could.’
        ‘Nazi?’
        ‘Yes.’
        ‘Fascist?’
        ‘Yes.’
        ‘ … He might be tempted to describe South Africa as a police state without being a communist?’
        ‘There might be justification.’
        ‘So words like oppression, reactionary, exploitation, fascist, undemocratic, which you have so far stamped as communist, can equally in the eyes of the African non-communist be considered as applicable.’
        ‘Possibly.’

On it went. Kentridge had spent months reading up political philosophy.

‘The philosophy of materialism, of course, is not an invention of Marx?’
        ‘No. The dialectical form, the special form, is Engels, of course, but materialism generally is not.’
        ‘The idea of the dialectic was derived from Hegel?’
        ‘Yes, but dialectical materialism is Marx-Engels of course.’
        ‘The labour theory of value, for instance, was derived from Ricardo probably?’
        ‘Yes. I think Marx gave some twists to it.’

‘Let’s take another idea that you’ve mentioned, the idea that those who hold economic power in society are the effective rulers of it. That didn’t originate with Marx, did it?’
        ‘Yes, that is not Marx.’
        ‘One can take that back to Harrington’s Oceana?’
        ‘Yes, in the 17th century.’

De Vos, who had produced this political cornucopia, was powerless to halt the use now being made of it. By the time Kentridge had got Murray to accept that one was unlikely to find a Marxist-Leninist invoking Christian principles, his credibility as a witness, Grant considers, had been destroyed. I don’t think that is quite right. True, Murray had fallen into a series of elephant traps by identifying passages which turned out to be the work of Milton, Pitt, Voltaire and Lincoln, and in one instance of Murray himself, as communistic. But by treating him as an intellectual equal and exploiting his learning, Kentridge and his fellow counsel had made Murray an asset for the defence. While Kentridge would no doubt point out that it was de Vos who had unwittingly dealt him this hand, it required an advocate of Kentridge’s skill to avoid both underplaying and overplaying it.

In March 1960, as the Treason Trial ground on, the Sharpeville massacre took place: 69 members of a noisy but peaceful crowd were shot dead, most of them in the back, and 187 wounded. The mass arrests which followed included eighteen of the accused in the Treason Trial, and the bail of all thirty was revoked. When Mandela’s turn came to testify, he spent six days in the witness box explaining that African nationalism did not necessarily involve violence and that, although violence had never been ANC policy, its 1949 Programme of Action had envisaged pressure, typically through strikes, as a means of negotiation. (‘What,’ the presiding judge asked, ‘is the value of participation in the government of a state of people who know nothing?’) But the court became increasingly impatient with the prosecution’s fantasy that the ANC’s concealed policy was one of ‘contingent retaliation’ – provoking the kindly and peaceable South African state into violent reprisal. As the prosecutor put it to one of the accused, ‘if it had not been for the restraint and tact of the police you would have succeeded long ago in involving the whole country in bloodshed.’

By March 1961, Kentridge was well into his closing submissions on the legal meaning of treason when he was stopped by the court. The judges had heard enough and were going to acquit all the accused. This they did when they reconvened the following week:

It is impossible for the court to come to the conclusion that the ANC acquired or adopted a policy to overthrow the state by violence … While the prosecution has succeeded in showing that the Programme of Action contemplated the use of illegal methods (e.g. strikes, boycotts etc) … for the achievement of a fundamentally different state from the present, it has failed to show that the ANC as a matter of policy intended to achieve this new state by violent means.

From the Treason Trial Kentridge was plunged into the judicial inquiry into the Sharpeville massacre, set up by the government largely to mollify international opinion. Although formally led by three QCs, Kentridge took on the principal burden of questioning the succession of police witnesses who claimed that the police station had been besieged by a hostile mob, goaded – Major van Zyl swore – by ‘half-naked women dancing frenziedly’ in front of them. Justice Wessels’s report was a sad essay in equivocation. He declined to draw any inference from the fact that many of the dead and wounded had been found lying a hundred yards or more from the fence from behind which the police had fired Sten-guns and in all probability dumdum bullets.

Twenty-four years later, six young Sharpeville residents were found guilty of the murder of the deputy mayor of the township, Kuzwayo Jacob Dlamini, by burning him to death in his car. Although none of them was directly implicated, they were all convicted by virtue of the ‘common purpose’ doctrine and sentenced to hang. Kentridge, now a QC, argued the appeals on the ground that the judge had wrongly refused to admit fresh and material evidence. Conscious of the massively prejudicial impact of the killing itself, Kentridge did not wait for the prosecutor to paint the picture: taking the initiative, he opened the appeal with his own graphic description of the murder, then set about sowing the seeds of doubt as to his clients’ individual complicity. Although the convictions were upheld, the accused were reprieved and not long afterwards released.

In July 1963 a police raid on a farmhouse at Rivonia, near Johannesburg, resulted in the arrest of most of the leaders of the ANC’s armed wing, uMkhonto we Sizwe. Mandela had already been arrested a few months earlier. They were charged under the Sabotage Act with crimes carrying the death penalty. Fischer, who had not been there when the raid took place and so had remained at liberty, came in with Kentridge as defence counsel, though constantly anxious that a witness might recognise him. Over the eight months of the trial, the counts on the indictment were reduced from almost two hundred to twelve, but guilty verdicts were inevitable and damage limitation was the main objective. There seemed slim hope of avoiding death sentences. In this situation it was decided that Mandela would give his evidence as an unsworn statement from the dock. Everyone knows how it concluded: ‘I have cherished the ideal of a democratic and free society in which all persons will live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to see realised. But, my lord, if it needs be, it is an ideal for which I am prepared to die.’ What has more recently become known is that Fischer was opposed to the inclusion of the final sentence, fearing that the judge would take it as a challenge. In the event Mandela’s instinct proved right, and Justice de Wet’s decision not to impose death sentences changed the course of history.

With​ the other leaders incarcerated on Robben Island, Fischer became the state’s principal target. Not long after the Rivonia trial he was betrayed to the police and charged with a series of crimes under the Suppression of Communism Act. Given bail to enable him to travel to London to argue a case in the Privy Council, and in spite of massive pressure from family and colleagues to stay in Britain, he refused to break his word and returned to South Africa to stand trial, then jumped bail and went into hiding. When proceedings to disbar him began, he asked Kentridge, his former junior, to represent him. Contending that political activity was not a ground for disbarment, Kentridge cited the case of Fritz Krause, a Boer War veteran who had been jailed and disbarred in England but was readmitted to the Johannesburg bar and went on to become judge president of the Orange Free State. Despite this, Fischer was disbarred in his absence and, after the better part of a year of clandestine activity, recaptured and, in 1966, put on trial. Refusing to recognise apartheid law as valid, he pleaded not guilty and made a day-long statement from the dock. In what Kentridge told Grant was one of the most shocking moments of his career, the prosecutor asked for the death penalty. Sentenced instead to life imprisonment, Fischer developed cancer and was released in 1975 to die in his brother’s house, where Kentridge was forbidden to visit him.

Meanwhile, with Nelson Mandela in prison, the state turned its attention to his wife, Winnie. Although subsequent events have destroyed her reputation, she was in the years of his incarceration a principled and courageous campaigner, repeatedly subjected to banning orders and, in 1969, the first person to be arrested under the Terrorism Act. She withstood weeks of torture at the hands of the sadistic Major Theunis Swanepoel before being charged with 21 others with crimes under the Suppression of Communism Act. By another of those paradoxes that still characterised justice in South Africa, the trial judge, Justice Bekker, was one of those who had acquitted the accused in the Treason Trial. Bekker refused to halt the cross-examination of prosecution witnesses about the pressure put on them to testify. Finally, when the defence gave notice that it was going to apply for a subpoena to enable it to call Nelson Mandela as a witness, the Transvaal attorney general intervened and withdrew the entire indictment.

As the accused left the dock, the police locked the courtroom doors and rearrested them under the Terrorism Act. The Act allowed the police to hold them incommunicado, and it seemed inevitable that they would be tortured. The two defence counsel, George Bizos and David Soggot, brought in Kentridge and an urgent application, based on the evidence elicited from the prosecution witnesses, was made for injunctions forbidding the police to ill-treat them. The judge refused to treat the application as urgent, with the result that it went to the back of an already long queue. But, possibly because the eyes of the world were now watching, the accused, though held in isolation, were not beaten or tortured.

When the trial began in August 1970 Kentridge, brought in as leading counsel, took the preliminary point that the new indictment was so similar in detail to the one on which the accused had been acquitted that this amounted to an illicit retrial. To his and everybody else’s surprise, the judge (Justice Viljoen, an individual with no liberal credentials) accepted the submission – still known in Law French as ‘autrefois acquit’ – and stopped the trial. The work by Kentridge and his team, matching each detail of the second indictment with the first, had been colossal, but the submission it yielded was unanswerable.

In addition to the fruits of hard work, every advocate is entitled to one piece of dumb luck. In Kentridge’s case this came when, following the Biko verdict and the announcement that no police officers were to be prosecuted, an informal gathering was held at his home in Cape Town to discuss the possibility of bringing a civil lawsuit for damages on behalf of Biko’s family. By mistake an invitation was sent to the state pathologist, Johan Loubser, who had testified at the inquest that prompt medical attention would not have saved Biko’s life. Loubser turned up at the meeting, and Kentridge, instead of getting rid of him, invited him to start the discussion. Loubser, unprompted, said he now thought Biko might have survived if given early medical attention, and the state eventually settled the family’s claim for a realistic sum. You can call it luck, but how many lawyers would have simply asked Loubser to leave?

The Biko inquest was more nearly a terminus in Kentridge’s career than a springboard, for he was demoralised by its outcome, and his practice shifted increasingly to London. He was called to the English and Welsh bar in 1977 and became a QC in 1984. Grant’s tally of the major cases he was briefed in between then and his retirement, at ninety, in 2013 would in itself amount to a distinguished career.

Although Grant illuminates his solemn-looking subject with anecdotal flashes of anger and moments of jubilation, he stresses that this is not a biography. If it were, it would include not only Kentridge’s magisterial career at the English bar but a family in its own way as remarkable as himself. It’s sufficient for the time being to record that on 5 November Sir Sydney Kentridge will reach the age of 100.