Arthur Chaskalson, Constitutional Court chief justice, dedicated his life to the struggle for social change and was key to the negotiation process during South Africa's transition.
This is a lightly edited excerpt from Stephen Ellmann's Arthur Chaskalson: A Life Dedicated to Justice for All (Picador Africa, 2019)
Although the best-known phase of South Africa's negotiated transition took place in the early 1990s, in fact both the process of negotiation and Arthur's involvement in it had begun a good deal earlier. We will begin, therefore, with the early, tentative contacts between ANC figures and potential interlocutors from South Africa, and follow the gradual acceleration of the negotiating process from the writing of the Namibian constitution to the climax in the formal structures of the Convention for a Democratic South Africa and the Multi-Party Negotiating Process. In all of these, as we will see, Arthur played a part. Initially, his role - at least his visible role - was modest, but beginning in 1990 the transition became his central professional responsibility.
Between 1983 and 1990 there were, according to one chronology, 167 meetings between the African National Congress and South Africans "from home" who travelled elsewhere in the world for meetings with the long-exiled ANC. Patti Waldmeir describes these encounters as a whole as "the great seduction". One of the most important of the early meetings took place in 1985, when Anglo American executives joined ANC leaders in an encounter in Zambia. Not long afterwards, Thabo Mbeki (who would become post-apartheid South Africa's second President) and others met a group of parliamentarians led by Frederik van Zyl Slabbert in Lusaka. In 1986 ANC figures including Mbeki and a group of white South Africans including the chairman of the Broederbond, Pieter de Lange, met at the Ford Foundation in New York. In 1987, Mbeki met with negotiations begin a group of Afrikaners led by Van Zyl Slabbert in Dakar. A series of meetings, beginning in 1987 and held mostly at Mells Park House, a stately home near Bath in western England, brought together a group of ANC figures led by Mbeki and a white South African delegation.
There were many other meetings as well. Arthur took part in one of these sessions, organised by the distinguished legal philosopher Ronald Dworkin of Oxford University, in Nuneham Park, Oxfordshire, in July 1989. At the time, Lorraine [Chaskalson, Arthur's wife] was ill, perhaps with the loss of energy that plagued her later years, and their friend Richard Rosenthal, who met with Arthur on 18 June, wrote that he "seemed far too much distracted by Lorraine's illness to contribute much to the discussion, and was also worrying about his planned departure for" the Oxford conference. "Although Lorraine was still urging him to go, he felt that it would be unwise" - but ultimately he did attend.
This was a carefully structured event, and Klug characterises it as "now famous"; it was the first that "brought South African judges together with some ANC lawyers". The first part included a number of South African judges, and focused on the future South African constitution, while a second part, held at a separate venue, did not include the judges and evidently had a broader focus, with Thabo Mbeki and Oliver Tambo joining the discussions. Savage explains that "the meeting was so structured to enable the SA judges to indicate that they had attended the first part alone as it was a purely legal meeting". Edwin Cameron has written that it was Arthur who "led a handful of us to a special meeting ... at the nearby country home of liberal philanthropist David Astor". It seems plausible to infer that Arthur played some behind-the-scenes role in the planning of this event - using his particular sensitivity to the role of judges, and his strategic resourcefulness, to structure the two-part schedule. It's also clear that he would have met Mbeki, the leader of the ANC's "seduction efforts", in Nuneham Park, and that he would also have met with Oliver Tambo (whom he most likely knew from Tambo's pre-exile law practice days in Johannesburg). Richard Rosenthal confirms that Arthur met with both Mbeki and Tambo at the conference.
While the ANC was building its credibility among white South Africans with these early meetings, something more significant was happening at the same time. Initial negotiations were already getting under way through multiple channels. The most important of these, what Waldmeir calls the "greatest seduction of all", was the series of meetings that Nelson Mandela, still a prisoner, began to have with members of the National Party government. These included tea with PW Botha on 5 July 1989 - but many more substantive meetings with government ministers had preceded this one.
Before these meetings, however, Mandela had had to make clear both to the government and to his supporters that he would not make a deal for his personal convenience. As Mandela writes in his autobiography:
"On January 31, 1985, in a debate in Parliament, the state president [PW Botha] publicly offered me my freedom if I 'unconditionally rejected violence as a political instrument'. This offer was extended to all political prisoners. Then, as if he were staking me to a public challenge, he added, 'It is therefore not the South Africa government which now stands in the way of Mr Mandela's freedom. It is he himself.'"
This was, on Mandela's count, "the sixth conditional offer the government had made for my release in the past 10 years".
Mandela prepared a response and gave it to his wife Winnie and his attorney Ismail Ayob. Bizos writes that Mandela "instructed [Winnie] to consult Arthur and me as to the form and manner in which his statement should be released". As a prisoner, he of course could not deliver this response in public, and his wife Winnie was herself under a banning order which legally prevented her from doing so. Winnie was in the process of unbanning herself - that is, simply refusing to comply with her ban conditions and defying the state to take action against her - but Bizos and Arthur advised her against pressing the banning order's limits on this score. Winnie proposed that Zindzi Mandela, their 16-year-old daughter, should present her father's message at a forthcoming UDF rally on 10 February 1985. Arthur's involvement did not end there. The lawyers reviewed Mandela's draft statement, and Arthur added two stirring and important points: the first was the proposition that "Only free men can negotiate. Prisoners cannot enter into contracts" and the second was Mandela's closing commitment to his people: "I will return."
Nine months later, in November 1985, Nelson Mandela, still a prisoner, was hospitalised in Cape Town for surgery to treat an enlarged prostate. While he was there, the Minister of Justice, Kobie Coetsee, came unannounced to see him. Mandela in his autobiography writes that their conversation consisted mostly of "pleasantries", but apparently they had also "discussed the release of political prisoners", including Mandela himself, and "broached the subject of a settlement of the conflict between the liberation movement and the government". Not surprisingly, Mandela saw the visit as "an olive branch", and he followed up a few weeks later with a letter to Coetsee proposing "talks about talks". Apparently, however, Mandela took one other step even more quickly: while he was still in hospital, he asked George Bizos to go "to Lusaka to speak to Oliver [Tambo] on his behalf". Mandela "knew that the movement in the country and in exile - concerned about his health and isolation [since he had been moved off Robben Island] - feared that he might compromise himself and them".
That very day Bizos discussed the trip with Coetsee when they found themselves on the same flight back to Johannesburg, and Bizos made the trip to Lusaka in February 1986. He and Tambo were reunited for the first time in 26 years, and during their meeting Tambo told Bizos "to assure Nelson that the ANC in exile had full confidence in him and that he had Oliver [Tambo]'s full support". (This was the same meeting in which Bizos, then in the midst of the Delmas trial, "was also able to report to Oliver what I knew of their [the accused's] attitude".) Bizos met again with Coetsee on his return. "The minister's sanction of my visit to the president of the ANC in exile emboldened me. After that, I served as a messenger and courier for Nelson. On his behalf, I travelled to London and Athens to see Oliver, Chris Hani, Albie Sachs and other members of the ANC national executive, as well as various international leaders." Arthur was not part of these meetings, but George Bizos says that there were no secrets between the two of them, and that Arthur therefore would have known - unlike most South Africans - what was under way.
Meanwhile, Mandela's meetings with the government went on. After several more meetings between Mandela and Coetsee, the government created a fourman committee to continue these encounters. This committee included not only Coetsee but also "General Willemse, the commissioner of prisons; Fanie van der Merwe, the director general of the Prisons Department [and later an important government representative in the constitutional negotiations]; and" - perhaps most significantly - "Dr Niël Barnard, a former academic who was then head of the National Intelligence Service". Apparently "hundreds of hours of talks ... took place" - and while he was nurturing this process, Mandela shared very little information about this initiative with his comrades in prison or outside the country. At the same time, and separately, the National Intelligence Service made contact with the ANC in exile through the Stellenbosch philosophy professor Willie Esterhuyse.
Because very little of this activity was public, it would have been easy to think that a crisis was looming and that no one was talking about resolving it peacefully. Feeling this, Arthur's friend Richard Rosenthal launched an effort which he would later call "Mission Improbable" in the book of that title that he published in 1998. Rosenthal's aim was to personally open up a channel between the government and the ANC, and he pursued this goal on his own initiative after first writing to State President Botha in September 1987. His quest might indeed seem improbable, and he was not ultimately successful, but it turned out his efforts were by no means in vain. He won the financial and policy support of the Swiss government. Beginning in November 1987, he met at least 22 times with Stoffel van der Merwe, then Deputy Minister of Information and of Constitutional Planning and as of March 1988 the Minister of Information, who was trying - as it turned out, with limited success - to win government support for opening a channel for talks. On the ANC side, he met with Thabo Mbeki in Frankfurt and then on three occasions in Lusaka, between May 1988 and March 1989.
Rosenthal also met with the National Intelligence Service and with the NIS's ally, Willie Esterhuyse (though Esterhuyse did not reveal his NIS connection to Rosenthal). He did not succeed in meeting with the NIS head, Niël Barnard, whose opposition to Rosenthal's involvement may well have doomed his initiative. Barnard, who as we have seen was himself deeply involved in talks with Mandela, at one point wrote a blunt letter to Rosenthal assuring him that he was not acting out of "any personal malevolence towards you" - a letter that Rosenthal read as "indicat[ing] a degree of menace". (Barnard remains annoyed with Rosenthal, whose efforts Barnard clearly saw as getting in the way of his own.)
Arthur was not part of Rosenthal's discussions with the government or the ANC. But he was very much involved in Rosenthal's effort. They were old friends; Rosenthal had helped found the Cape Town LRC office, and the Chaskalsons several times vacationed in the Rosenthals' Cape Town home. Rosenthal consulted with Arthur about how he should proceed, beginning at the time of Arthur's end-of-year break from Columbia Law School in 1987-1988 and continuing on other occasions. "Without his seeking or accepting this thankless role," Rosenthal would write, "Arthur became 'my brother and my father confessor'." They discussed how negotiations might be structured, and how to build confidence between the potential negotiating parties. Arthur's first reaction to all this was amazement at Rosenthal's initial success, and he later described what Rosenthal had accomplished as "very exciting". It seems clear that Arthur was ready to play a role in this new way of addressing South Africa's situation.
Arthur also took very seriously the question of how Rosenthal could minimise the real risk they both saw that he would wind up arrested and detained without trial for his troubles. One source of this worry was an odd burglary that took place at the Rosenthals' Cape Town home while the Chaskalsons were vacationing there in late December 1988 or early January 1989. This incident seems to have involved an underground agent of the ANC, and generated - after the Chaskalsons' departure - intense police attention. When Arthur heard this and other news, he "was as calm and unflappable as ever, though conceding that the situation was quite alarming".
In the course of his second meeting with Mbeki, in July 1988 in Lusaka, Rosenthal raised the concern he had that he should not be proceeding alone but instead should have "a reference group to work alongside". Mbeki responded "that he saw no problem in my liaising with people like Arthur Chaskalson, and at a later stage he might suggest a few other names". Rosenthal in turn told Arthur later that month that "his possible involvement as my confidant had been discussed with the ANC and approved by them. Arthur confirmed his willingness to play this role, though he admitted that it would be uncharted territory for both of us."
One issue that Rosenthal's idea of a "reference group" indirectly encompassed was the question of whether in an effort of this sort he should be in consultation with black lawyers. Perhaps it was also in July 1988 that Rosenthal asked Mbeki if the latter would advise him to reach out to black lawyers to connect them with his effort. Mbeki answered that "whilst there were certainly some excellent black lawyers ... there was nobody, no ... black lawyer who is of equal quality to Arthur Chaskalson and [in] whom we have great confidence".
What kind of relationship between Arthur and the ANC did this comment by Mbeki imply? Mbeki evidently did not elaborate, and what he had in mind must remain uncertain. The most straightforward reading is probably correct: that Mbeki was saying that Rosenthal was already in touch with the right lawyer to be consulting with, not that he (Mbeki) was also somehow in touch with him. I also asked George Bizos about Mbeki's remark, and he saw it as reflecting that Arthur was privy to everything he (Bizos) was involved in. No doubt Bizos would have conveyed to Mandela himself, and very possibly to the ANC in exile, that he and Arthur were consulting closely, and so Mbeki would have been aware of Arthur's role. This explanation makes sense, and there is no indication of Arthur's being involved in any other way.
In any event it seems quite clear that when Arthur met Mbeki at Nuneham Park in mid-1989, Mbeki already valued Arthur's role. He also valued Rosenthal's efforts:
"Thabo of his own initiative had raised the matter of my [Rosenthal's] initiative. Arthur said, 'He spoke very warmly of you. We discussed briefly your initiative, and agreed that you were really in an impossible situation.' Arthur asked whether there was any message which Thabo wished to convey back to me. He had taken Arthur's telephone number, and had said that he would ring him if he felt there was anything to be conveyed. In the result they had not spoken again."
While this conversation confirms that Mbeki was well aware of Arthur's connection with Rosenthal, it does not seem to reflect any broader link then existing between the two men. Whether their interaction in Nuneham Park provided an opportunity for Mbeki and Arthur to begin building a closer connection, I do not know.