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Asgar, Naazli; Steinwall, Ray --- "Black Lawyers, White Courts: The Soul of South African Law by Kenneth S Broun" [2001] AltLawJl 78; (2001) 26(4) Alternative Law Journal 206


Black Lawyers, White Courts
The Soul of South African Law

by Kenneth S. Broun; Ohio University Press, 2000; 286pp; £17.00.

But for apartheid, how many more black men and women would have risen to careers in the law or other professions? This is the question posed by Nelson Mandela in the foreword to this book. Nelson Mandela is now a household name. His leadership of the African National Congress, imprisonment on Robben Island, and rise to the presidency of the new democratic South Africa have left the most indelible mark on the 20th century. The other lawyers mentioned in the book faced similar discrimination and oppression by the systems and institutions that was apartheid. They describe in this book the insurmountable struggles they faced on a daily basis.

To a lawyer in a western country it is impossible to comprehend the extent of the racist and often brutal practices that aspiring black lawyers endured under apartheid. In each case their struggle followed a familiar pattern. That pattern is reflected in the individual chapters in the book. Each chapter commences with a short introduction by the author and is followed by each lawyer's story, told in his or her own words. In reality the work is a series of truncated autobiographies, linked by a common theme and presented in chapters that follow a logical sequence of life events. Starting from the earliest beginnings, the school years, university and finally the lives of the black lawyers in practice.

The format suffers a little as the chapters are arranged in a sequence of events, rather than dealing with the entirety of each lawyer's experiences in a single chapter. However this is a minor glitch in what is otherwise a compelling work. The power of the book lies in the frank accounts of each lawyer, in their strength and courage, in their overwhelming determination to succeed despite the instances of persistent discrimination and the daily indignities they endured in the course of practising law.

Take for example Godfrey Pitje to whom the first chapter is devoted. Born in the Northern Province in 1917 to barely literate parents, he was one of eight children familiar with poverty. After completing primary school he was fortunate enough to train for and qualify as a teacher. Very few black men and women would have hoped for more. He was one of a handful who went to university, at a time when few universities admitted black students, regardless of ability. His meeting with Nelson Mandela and Oliver Tambo (then practising under the firm, Mandela & Tambo in Johannesburg) had a profound effect on his thinking and his decision to practise law. He commenced with Mandela & Tambo as an articled clerk and later graduated in law from the University of South Africa.

Those who followed Pitje also faced the Bantu Education Act 1953. It was designed to limit the achievements of black South Africans and to ensure that they did not, in the words of the government, rise 'above the level of certain forms of labour'.

Each aspiring lawyer shared a similar pedigree. Often born into poverty with little hope of breaking the cycle of hopelessness. Those who could, obtained the best education they could manage. Often walking many miles and with little in the way of books. School was usually outdoors or in a dilapidated building totally unsuitable for its purpose. Family circumstances forced many to cut short what little education they received. Those who managed to continue their education had to find ways to support themselves.

A black student wishing to study law had few alternatives. In the 1950s, 1960s and 1970s few universities admitted black students. In the 1950s, for example, Witwatersrand University in Johannesburg was virtually all white. Lecturers and white students alike resented the presence of black students.

They received no support and even less encouragement. Ismail Mahomed, officially classified under apartheid's racial classification as an Indian, describes in the book how he knew that he had to study twice as hard as the white students simply to be accepted by the teachers and students. He went to the library while the white students socialised.

For those black students who graduated from university, theobstacles were far from over. To be admitted as a solicitor, a graduate had to be articled. No white firms would take on a black graduate and there were few black law firms. Those entering the bar fared little better. Dikgand Moseneke explained that he sought admission in Johannesburg because it was easier than Pretoria. The bar in Pretoria had never admitted a black lawyer. Indeed their constitution forbade black lawyers from joining the bar.

Black lawyers who completed their articles had little option but to open their own practice. The Group Areas Act prohibited blacks from occupying white only areas. Some black lawyers defied the authorities, often receiving prison sentences.

In addition to these hurdles, they faced discrimination by the very legal institutions of which they were now members. Pitje describes how he and Mandela refused to occupy the 'blacks only' benches in the registry. At court itself there were separate entrances for whites and blacks and a segregated bar table. Prosecutors wanted little to do with black lawyers and regularly sought postponement of their matters. The matters were predominantly charges against blacks for violation of the numerous racist laws for which many were serving prison terms.

A number of black lawyers were also under banning orders which severely curtailed their movements and their ability to properly represent their clients. Even more were in prison. Dullah Omar represented many of his colleagues serving terms on Robben Island. On the boat trips to Robben Island to meet with his clients it was prohibited for him to sit in those areas reserved for whites which would have protected him from the harsh Western Cape weather. His clothes and brief­ case were soaked after each trip to and from Robben Island.

Dullah Omar reflects that the legal profession as a whole remained a bastion of apartheid. Omar states that 'to­ day they claim otherwise, but both the bar and side-bar in our country have a history of collusion with the apartheid system'. Certainly there was a handful of white South African lawyers who actively opposed the apartheid system. However, their opposition was conducted in circumstances of easy access and membership of the almost exclusively white legal fraternity. It is the black lawyers who tell their stories in this book, who endured the brutality of the apartheid system. They are the true human rights lawyers.

The author is to be congratulated for his work in making the voices of this minority heard so simply, clearly and powerfully.



Ray Steinwa/1 is a Sydney lawyer and Adjunct Lecturer, Faculty of Law, University of NSW.

Naazli Asgar is a legal researcher in Sydney.

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