TEMBEKA NGCUKAITOBI: Travels with George Bizos on the road to Marikana

On October 1 2012 the scene was set for the judicial commission of inquiry to commence its hearings into the massacre at Marikana. A total of 44 people were killed, 34 of them by police, in August that year.

The night before, I had been with George Bizos, Jason Brickhill, Miriam Wheeldon, Bongumusa Sibiya, Avani Singh and Michael Power — all lawyers at the Legal Resources Centre (LRC). Bizos, Brickhill and I were the counsel team, while Wheeldon, Sibiya and Singh were the attorneys.

Bizos asked for a lift from Johannesburg to Rustenburg where the hearings would be held. I volunteered. In that three-hour drive, he would regale me with stories about past inquiries flowing from harrowing brutality of the apartheid police: Sharpeville, Soweto, the Harms Commission, the Goldstone Commission and the Boipatong massacre. Inquests into murders of activists in police custody: Looksmart Ngudle, Steve Biko, Ahmed Timol and the Cradock Four.

Bizos had lived and practised law through all of these — from 1960 to 1994. He thought he would never witness similar inquiries again. He was wrong. And bitterly disappointed. He would recall the familiar excuses of the police: they were under attack; it was self-defence; the protesters were a dangerous and armed mob; the prisoner jumped through the window of a 20-storey building; and so on — a litany of excuses but never responsibility.

Judges of the past inquiries had excused the conduct of the police. And so too did the magistrates. Faced with incontrovertible evidence of torture, like in the case of Looksmart Ngudle — one of the first political activists to die in police detention under apartheid — the magistrate would exculpate the police.

They did the same at the Steve Biko inquest, despite the medical evidence pointing to a gruesome assault before his murder.

The laughable excuse for the murder of Ahmed Timol — that he committed suicide by jumping off a building — found favour with the magistrate.

At Sharpeville, the evidence was that most of those killed by the police had been shot from the back. But the official police line was that they had acted in self-defence, despite the most probable version being that they had been shot while trying to run away from the police.

Bizos recalled that the apartheid police were also notorious for planting weapons at the scene of the crime. They had done so in Sharpeville. And in many other incidents which followed it. These barbarous acts, he had hoped, would be a thing of the past.

Bizos would tell of the familiar judicial rulings in the inquests of the apartheid state — not that the police were innocent, or that those killed by the police were responsible for their own deaths. Instead, they tended to accept the versions of a “scuffle” with the police, a “struggle ensued”, a “confrontation occurred”, someone had “slipped” on a soap bar during a shower and died — and many other inventive excuses.

In these seemingly neutral terms, the apartheid judges and magistrates could introduce judicial palatability to the murderous conduct of the police. The refrain was there was “no-one to blame”. This had been the astonished reaction of Nontsikelelo Biko, widow of Steve Biko, upon hearing of the verdict of the magistrate in the inquest: “What? No-one to blame!”

If anything, the apartheid judicial frame left Bizos sceptical of power. Judicial power included. Power and its tendency to corrupt, is to be distrusted, was his belief.

At the Truth and Reconciliation Commission (TRC) — in which Bizos would oppose the insincere applications for amnesty by the police — some truth was revealed. But mostly no truth was told. The lies of the past were often repeated. Amplified even. Mostly, however, there was dead silence. No-one came forward at all. Those who did, blamed their superiors. Particularly if they had since died.

“My superiors told me to do it, Mr Bizos.” “You know Mr Bizos, there was a war.” “No, Mr Bizos, I cannot recall.” These were standard police responses at the TRC.

The TRC depended much on the co-operation of the apartheid killers. While it was shunned by many, some evidence had been uncovered that tended to expose the systematic nature of apartheid killings: the death squads; the torture camps; the falsehoods in an effort to defeat the ends of justice; the manufacturing of evidence; the burning of corpses; the infiltration of the ANC. Yet, above all this some judges and magistrates exonerated them.

The apartheid judiciary in this sense was not made up of some hostile beings, but constituted an intrinsic part of a hostile establishment, as Sydney Kentridge would later recall. This was part of the disappointment with the killings by the police at Marikana. At the time it appeared that many of the dead had been shot in the back, fleeing from the police. Official accounts of the police, even at that stage, were that they acted in self-defence; that the mineworkers were armed and dangerous — a stance that was eerily familiar to Bizos.  

A unique feature of the TRC was its focus on the footsoldiers. Craig Williamson appeared. He blamed the dead men of apartheid. Eugene de Kock did not appear. But he was convicted for his role in the murders of Vlakplaas. He would be sentenced a staggering 200 years in prison. It seemed that all the sins of apartheid would be washed clean by his incarceration. Yet, the masterminds, the creators of the system did not appear. They did not account.

Those who kept the tanks of the military trucks fuelled, the big oil companies — Mobil, Shell, British Petroleum — did not show up. Nor did those who financed the system — the big banks. They did not show up. Nor did they own up.

These gaps in our memories of the past haunt the present.    

As we got closer to Rustenburg, Bizos changed the subject. Now we had to talk about what to say when the proceedings began. This was despite the fact that a carefully worded opening statement to which every member of the team had contributed had been prepared the previous evening.

Parsimonious view

We had left the meeting room satisfied that it touched upon the likely evidence to be led, the causal links and the law to be argued in due course. All facets of a decent opening statement. But for Bizos this was fine as far as a “legal textbook” goes. What he wanted was the “real” opening statement. A statement that would speak to the heart of the judge presiding over the commission, not to his judicial brain. People had died. Someone had lost a son, a father, a husband. The judge knows this. But does he feel it? Can he empathise with the widows?       

There is profundity in this. SA legal education has tended to emphasise the separation of the judge from the case. This has its advantages, for it enables the judge to have an aerial, objective view of the law unclouded by the emotions of the facts. The separation strikes one as artificial. It was this parsimonious view of the law that enabled apartheid judges to feel nothing for the victims of torture, widows of activists killed in detention. Then, law was whatever the political process had produced. Just or unjust. Judges were expected to enforce the law, even if they held it as morally indefensible.  

The “expectation” has not been without its controversy, even when it was in vogue. Liberal academics in the apartheid era such as John Dugard had already exposed the facade of legal positivism. They could show that while the law — in a positivist sense — comprises a system of rules given by a political system, such rules were necessarily imprecise, leaving room for interpretation and discretion. Their critique of the apartheid adjudication lay in its failure to fill in the interpretative void in favour of liberty. The same still applies.

Our constitution, imprecisely framed by reference to the text, can be construed in pursuit of its transformative impulses, or against them. The duty to construe the constitution in pursuit of socioeconomic transformation remains as urgent now as it was then.           

Back in the car with Bizos, he wondered aloud what would be the impactful thing to say to the commission. Who are we acting for again, he wanted to know. Well, that was a bit of a complex question, for the LRC had lost many of its original clients and remained with just one, John Ledingoane.

Bizos paused for a moment. He would begin another tale. This time about the first black judge of the US supreme court, Thurgood Marshall. As counsel, Marshall appeared before the supreme court in a case that turned on the standing of his clients, a human rights organisation, to pursue a particular point. When pressed to explain the basis for his standing, Marshall would reply that he “represents the constitution of the US of America”.

My reaction to this tale was mild indifference — until Bizos stood up to make his opening address before the commission. “We are asked who our clients are, Mr Chairman,” he announced, “and unashamedly I say that we consider our primary client [is] the constitution.” At this point, most could not contain their laughter, including judge Ian Farlam, chair of the commission.

Mr Bizos, you might be gone, but our primary client is still the constitution of the Republic of SA.

• Ngcukaitobi is a senior advocate of the Johannesburg Bar, and a former colleague of George Bizos at the Legal Resources Centre.