1 Paul Pretorius LRC Oral History Project 6th December 2007 Thank you very much for agreeing to be part of LRC Oral History Project. Pleasure. I was wondering whether we could start the interview by talking about your early experiences growing up under apartheid in South Africa and any formative influences that may have actually led you into the legal profession? Well, being led into the legal profession is easy. My father was a lawyer, an advocate, practising in Durban and he gave his male children two choices. And we weren t independent enough to choose otherwise, engineering or law, and I chose law. But in retrospect it was probably the correct choice for me. And that s quite different of course from my public interest bent, which I m not sure came from my parents. I m wondering whether you could start a bit earlier in terms of your experiences of apartheid, growing up in South Africa? Well, I grew up in, obviously, a white family, in a white suburb; in a school that was white in name it was a Marist Brothers School in Durban run by a religious order, a Catholic order of Marist Brothers. And if I look back at my school photographs, it wasn t really all white. There were no Africans in there but so called Indians and coloureds attended the school. And I suspect that in a way, not consciously, I was politically influenced by the practices and principles of the religious order there. And in fact there was more than one student politician that emerged from my time at the school. And I then went to University of Natal. But before I go there I mean before I went to university I lived a life that most young white people would live. There was no social contact across the colour bar. My parents followed the social norms in Durban which were largely English, although my parents were Afrikaans. So any liberal influence would have come from my schooling. I recall sort of antigovernment sentiments, although I m not quite sure where they came from. At school I remember, verbally attacking a child for expressing sentiments in support of the apartheid government. My father was never a Nationalist. He was a what was called the United Party. Not much difference between them in principle but and there was a bit of a rebel in him too I suppose. But my first political exposure came at the University of Natal in Durban. I got involved in a number of committees, and through personal influences and through sort of public interest influences I became involved in student politics. I was recruited by a very ambitious young politician at Natal University who was seeking to become SRC president there to support him and bring my rugby playing lobby with me, because I was a rugby player and I was rugby connected. And I did that and was on his Executive and the next year I became SRC President myself and at the time there was a growing well, it s been there for a long time but for me it was growing, because it was my second or third year growing protests against passport removals and bannings and generally NUSAS Union of South African Students influenced protests. So I became increasingly involved in
2 protests there. At the time the Black Consciousness Movement, SASO, was being born just a few kilometres away, at the University of Natal Medical School, which was a black medical school. And I and some others came into contact with Steve Biko and other student leaders and got to know them and had discussions with them. We had some social and sporting, not really overtly political, but interactions. From there I became SRC president and of course that involved meeting up with students from black universities, teacher training colleges, from the, I thought, far more sophisticated universities, such as Wits and UCT where the real intellectuals came from. And then eventually was elected at a national conference onto the Executive of NUSAS. Is this the mid seventies? This is late sixties. Early seventies. And after being Deputy President I became president at NUSAS. Largely because at the time, not that I was a great intellectual radical, but that they needed a leader who would hold the campuses together in the face of what everybody predicted was a pending attack on the universities and the university organisations by the government. And that happened of course. And so in my third year, full time in NUSAS, second year as President, I and several others were banned. And banning order gave me time to firm up on my political education, ironically. And I then completed my law degree by the time I joined NUSAS I broke my law degree to go work full time for NUSAS as deputy president and then president. I studied part-time. Completed my LLB degree and then part-time I wasn t allowed on a campus. I had to do it by correspondence. And came back to Durban and started practice as an advocate in Durban. At the time there was a growing trade union movement. It was really in its formative years. A lot of the intellectual leadership, organisational leadership of the trade union movement, not workers themselves, came from Natal, and were based in Durban. And so, by this time of course, when I wanted to practise law, I wanted to practise relevant law. And so for me practise would not have been satisfactory unless it had some sort of political meaning. And that was different from public interest law. It was working in law for the trade unions. They had chosen a strategy to try and advance their organisational strength by working within the legal system and using legal tools to try and advance their organisational interests. And so they used lawyers, and I was one of them, to try and further that. And it was in my fourth year of practice in Durban in about 1981, that I was invited to join the LRC in Johannesburg, which involved a move to Johannesburg in 1981. So I moved in September 1981, I moved to join the Legal Resources Centre in Johannesburg. The practice of law for the LRC in public interest law was different. It wasn t in fact people like Alec Irwin who was also working for the trade union movement in Durban when I left expressed surprise that I would, with a political and social conscience, move from the type of law that I was practising in Durban, to public interest law. The essential difference in the type of law practice was that practising law for the trade union movement was practising as an adjunct to an organised mass movement. Whereas practising public interest law would not necessarily have that link. Although later on it was a little controversial in the LRC, the Legal Resources Centre, we did start increasingly working for trade unions but that was not always something that one could take for granted in the LRC. But anyway, that was the fundamental shift. I of course saw it as a positive move because I would be then full-time involved in public interest work and it was an opportunity
3 for me to begin in Johannesburg. I d always been in awe of the people in Johannesburg, from the distance of Natal. In retrospect I think it was a little silly but anyway that was so. And to be able to work with (Arthur) Chaskalson and (Sydney) Kentridge and those people. Had you come across them before? I m wondering what the nature of your association with Arthur (Chaskalson) and George (Bizos) and Sydney (Kentridge) would have been prior to you joining the LRC? Very, very little contact. Obviously as a NUSAS president I had toured the country and had a political profile. And had been to places like the Johannesburg Bar to raise money for NUSAS legal action to defend NUSAS. There was a commission of inquiry that the Nationalist government set up as a result of which a number of individuals and organisations were attacked under the law, in inverted commas, of the day. My contact really was with people like Charles Nupen and Geoff Budlender and the connection I think came from them. Because they were also involved with student politics at the same time. In fact Geoff (Budlender), when I was banned, Geoff (Budlender) stepped in as acting NUSAS president and Charles (Nupen) was NUSAS president after me. In fact, you know, Charles (Nupen) followed me from Natal SRC to Natal University SRC to NUSAS president as well. So we were all of a kind. And we d all had the same or similar political experiences, albeit at different times. So Karel Tip, myself, Geoff Budlender, Charles Nupen, all went through more or less similar experiences in getting to the LRC, although I was the last of that crowd to join. Karel Tip also joined. He (was) also (at) Natal University NUSAS and LRC. So that s how I came to the LRC. I just want to take you back a little bit in the sense that you mentioned that you d become involved in student politics, and I m wondering what really was the impetus? Was there a really fervent politicisation going on at the University of Natal? What was the nature of the debates at the time? Well, from the inside, I m not really sure what the influences were. It all seemed rather obvious. If someone s passport was taken away that was wrong. If the government interfered in what was going on, on campuses that was wrong. It was a rather brutal and clumsy government and obviously we were reflecting the existence of an ethic that existed at the universities that was fed by the lecturers and the traditions of academic freedom and the regular commitments to academic freedom. There was a presence of values on the campuses that wasn t always overt and expressed. It was just there and it seemed logical and correct. And so inevitably for many of us, it was just the thing to do. I suspect that at the time we were also influenced by what was happening internationally with the student movement in the late sixties and the early seventies. In the United States? Yes, there was a general atmosphere I look back now and I think of my father who against his family s wishes fought in the Second World War, and from his perspective
4 it must have been a terrible experience. In fact, I know it was a terrible experience. And then they secure an existence after that and then these students come along and seem to upset it all. But it was just part of what was happening at the time. I never really sat down and thought: well, should I go on this protest? Or should I object? And I found myself arguing positions. I mean, if someone said to me: well, they had to take the SRC president s passport away this was the SRC president before me because he ll be influenced by Communists at Cambridge. And I thought, well, if so, so what? I mean, it just seemed to me so ridiculous. But I was always I always had leadership ambitions as well, so and I had a sort of public interest; I d be on committees, wanted to be a prefect at school, and that sort of thing, so maybe it was a combination of personal ambition and simply following ones conscience I suppose. I suppose I shouldn t denigrate it so much, I mean, there were principled choices made by many of us. I suppose in a sense it s not accurate to downplay it too much. But to think it was a great wrestling of the conscience to go on a march or, you know, these things just happened, and then someone asks you to sit on a committee and you agree, and then someone asks you to stand for the SRC and you agree. You do what s necessary and then someone then there s a protest and an incident and it just grows from there. And someone asks you to stand actually my father was very upset that I broke my studies but I think he was very supportive as well, ultimately. And the next thing you re heading up a student organisation, which was basically a protest organisation. And so when the request came to join the LRC, it wasn t a difficult it was just a continuation of a momentum, that in South Africa at the time there were those of us who just simply couldn t settle down. Quite where it began and what gave it impetus, I m not sure. You also mentioned that you had sort of contact with Steve Biko Yes. And I m wondering the common discourse is that ideologically NUSAS and the BC Movement, particularly the student movements like SASO for example, were ideologically different. Do you think that s an accurate depiction of those? They were. Look, Steve Biko practised his politics in a way different from those that followed particularly Harry Nengwekhulu, who pushed a much harder line than that which Steve (Biko) pushed. Let me tell you a story: I wasn t particularly schooled in the liberal ethic that the University of the Witwatersrand and University of Cape Town practised. Ours was based far more in the growth of the worker s movement. And for me I certainly didn t have the benefit of intellectual liberal parents. So when our discussions with (Steve) Biko took place, we were not inhibited by a liberal stance from understanding the need for a Black Consciousness Movement and the logic behind that Black Consciousness Movement. And this played itself out, I mean, if you want me to tell the story it illustrates exactly what you re talking about. Sure
5 There was a conference in Natal in the late sixties at which Steve Biko came to NUSAS to announce his departure from NUSAS and the formation of SASO, South African Students Organisation, the Black Consciousness Movement. Now we had had discussions with Steve (Biko) and others and we knew about it, understood it and understood the need and the logic behind it, and didn t see it as an anti it wasn t an anti-white thing, it wasn t anti-nusas thing, and there was no tension. Except what happened was, that when Steve Biko made his announcement and I proposed a resolution at the conference, seconded by Clive Schmidt, who s in Cape Town at the moment, that NUSAS recognised that SASO was the organisation best able to represent the interest of black students and that we wished them well and we would give them whatever support we could. Proposed that resolution, immediately Wits SRC stood up and Cape Town SRC stood up and threatened to walk out if the resolution was even tabled. Resolution was withdrawn and there was lobbying throughout the night. And when the conference resumed the next morning the resolution was watered down by highly articulate liberal students from I mean, we were no match for them to SASO being an organisation well able and, you know, that was the liberal compromise. Now I wouldn t have classed myself as a radical then by any means. I mean, my eyes sort of stood on stalks when even Vietnam was discussed at the early conferences I went to. It just seemed logical and correct the stance that Steve Biko took. So the answer to your question is, that because I wasn t stuck in the liberal ethic it seemed to me perfectly acceptable and ok for (Steve) Biko to say and enunciate the principles that he did enunciate, that look, you know, it s useless for black leadership to hang around white liberal organisations, where they re in a huge minority and struggle for a strong voice, that Black Consciousness was necessary at the time in order to promote black leadership. And all the other things that went with it. I don t pretend to be an expert on Black Consciousness, but I immediately understood it and had an affinity for it. And so for me there was no difficulty at all in accepting it. For the principled liberals who felt that any organisation that reflected a divide on racial basis was completely unacceptable as a matter of principle, it was much more difficult to accept. But I then spent the next year or so going around campuses trying to explain what had happened. What happened then was that and I think (Steve) Biko ultimately envisaged that Black Consciousness, once it had served its purpose, would not result in a racially divided society. That there would be a socialist or social democratic coming together on the basis of other political values and principles, once Black Consciousness had served its purpose. It wasn t seen as a way to achieve dominance and maintain dominance in a multi-cultural society. But the successors took a harder line. And there were some tensions that developed between NUSAS and SASO, but they weren t at all serious. In fact when Steve Biko left the conference, after the resolution had been passed, he gave me a note and he said: thank you, Paul for your support. And then they walked out. (laughs) I hope you ve kept that note. I haven t kept that note, I mean, I didn t realise that it would have been valuable to keep (laughs). But other than that we got on personally well we in fact had the bright idea of organising a rugby match Steve (Biko) came from the Eastern Cape where there was a strong rugby tradition, and so we organised the rugby match between the campus up on the hill and the campus down in the valley and
6 This is the Medical School, you re talking about? Yes, the Medical School. And we held the rugby match. The police and the politicians were very interested in it, and we were criticised and condemned so there were good and solid relationships. Good understanding. Certainly, when I interviewed Charles Nupen and Karel Tip, there is that sense that (Steve) Biko s politics really differed quite substantially from what was to emerge later on in the BC movement. I m wondering also I interviewed Peter Harris this morning and he said that you were an incredible influence on him politically, and in fact probably that was the reason he in fact joined the LRC. Really? I m flattered to hear that. Well, I m wondering at what point, was that during.as NUSAS President that you met Peter Harris? No, I met Peter (Harris) later when I was practising law in Natal. And we met socially really. And I and our social contact continued after I joined the LRC and I just spoke to him I suppose, you know, Peter is a very enthusiastic and committed person. A lot of public interest energy in there. And he just needed a place for it to go. So all I did was sort of suggest a route for the energy to flow. I mean, I can t be blamed for the creation of the energy (laughter), so I think he must take credit for what he decided. All I did was offer him an option. Also in the mid seventies there was this NUSAS trial that Arthur Chaskalson was involved in with Karel Tip and Charles Nupen. Were you involved in that at all? No, I was banned at the time. I was banned until 1977 when my banning order expired and a year earlier I had applied to go to Natal. I was confined to Cape Town. Because my father was very ill and I went to look after him and start practice as an advocate there. I wasn t involved in the trial. That was happening in Johannesburg at the time that I was banned. So I was trying to make a living and study at the same time. And, you know, rightly or wrongly, I felt that when I was banned that it was important for the organisation that the new leadership be given free reign, so I didn t try and influence the organisation at all from the banned state. You know, it s the nature of student organisations that people move through them very quickly and it was important for me to maintain that, so I just concentrated on educating myself, getting a degree. I did a lot of reading. Ironically I read my first real left wing literature when I was banned. The banning order gave me an opportunity to read all the traditional literature that students at the time, left wing students were reading. That s where I really got my education. And it was after that that I understood that it was important to support the Workers Movement, which I did both in Natal, practising as a lawyer in Durban, and later at the LRC.
7 Coming to the LRC, I m wondering Paul, the early years, when you started, that really was the time the LRC started in 1979. 1980 the first fellows started to enter and then 1981 was when you joined? Yes. Were you involved in the Rikhoto case or the Komani case? I wasn t. I came just after those had started. And I was involved as an advocate, which was a little frustrating because of the way our legal profession is organised, and I suppose for those that read this in the United States, we have a divided Bar such as that in the United Kingdom, so I was an advocate or barrister. And Charles (Nupen) and Geoff (Budlender) and others were attorneys. And they were the ones that actually took on the cases and they treated us like advocates. They would actually brief us. And we continued to be members of our Bar Associations. So I would receive work I found that a little frustrating because I was always then really coming in at the end of the case with basically the court room presentation and expertise in a range of cases that were actually taken on by the attorneys. And there was a momentum, so I came in at the momentum. I wasn t really involved in the planning and creation of the organisation. But nevertheless, it was greatly formative for me and I did what I was told and stayed for four years, then decided to leave after that and go back to the Bar. And when you say, go back to the Bar, was it the Johannesburg Bar? It was the Johannesburg Bar, so I was a member of the Johannesburg Bar all the time the Johannesburg Bar was quite supportive of the LRC and they allowed us to practise as an advocate without losing seniority. So I was just practising as an advocate at the Johannesburg Bar but seconded full-time on a salary to the LRC. And increasingly concentrated on labour cases and became involved, interestingly and significantly for me personally, in the development of alternate forms of dispute resolution in the labour field, particularly mediation and later arbitration. And I was instrumental in introducing arbitration through an organisation that emerged at the time. Arthur Chaskalson was invited to become part of a working group to establish a mediation practice to assist labour management resolve disputes. And Arthur (Chaskalson) said that I should go along, and you know, of course mediation and the tensions of what politics were at the time was not really a popular option. I trained as a mediator, the same group as Cyril Ramaphosa, and I really think that that that the adoption by the Union Movement of mediation as a tool of negotiation, resolving disputes and gaining advantage in disputes was really instrumental in creating a culture of negotiation and creative thinking around negotiation, which formed the skills and attitudes of people like (Cyril) Ramaphosa later. During transition?
8 Yes. So I think that was another important participation in something that was happening at the time. Charles (Nupen) actually also followed there in fact I took Charles (Nupen) to his first mediation and I became Chairman of the Board of the Independent Mediation Services of South Africa, he became amongst the first Directors. Is that IMSSA? IMSSA, yes. Which was an other important NGO I think at the time. I think its importance is largely underestimated. By anyway soon after leaving the LRC This was mid eighties? 1986 by that time? Yeah, I then got briefed by the Cape Town LRC to get involved in a horrific three year trial in Cape Town. This was the KTC trial. KTC was an informal settlement that was occupied in part by young ANC members. And government got very impatient and the police got very impatient, so they just wiped out this squatter camp. In their terms. They just made that decision, that s what they will do. And of course they did it. by recruiting more conservative black informal settlement dwellers, the so-called witdoeke, and it was portrayed very cleverly as black on black violence. It was nothing of the sort. And the police actually orchestrated and led the so-called black on black violence and wiped out a whole squatter community. So that was a three year trial, it was in fact, ironically after my LRC days one of the most tension filled and difficult three years of litigation that I ever experienced. It was really tough, it was very tense. It was very important for the police to maintain their cover and not to be exposed for what they had really done, and this trial threatened to do it. And there were a number of incidents that happened during that time that made me really feel personally threatened for my personal security. I wonder whether you could talk a little bit about the fact that when you were at the LRC there was discussions about how to use the law in terms of test case approaches, and I wondered what discussions you were privy to at the time? As I say, by the time I joined I think the policy had really been formulated. But it was clearly a a decision not to be seen to be allied with and in fact not to ally within any particular organisation. Whether that be the trade union movement, any political organisation, it was an absolute rule in the LRC. So we couldn t be seen to be associated, for example, with the ANC or any other movement. It was important for Arthur Chaskalson, I think, in order to maintain the viability of the organisation, its funding sources and in order to be able to be free to do what it wanted well, free is the wrong word, but to create the space for what it wanted to do, to deal only with issues rather than organisations. And so, when a plaintiff was found for the Rikhotso (aka Rikhoto) case for example, that had no overt organisation, certainly that I was aware of. The test case policy was really finely tuned by Arthur (Chaskalson). He had a great skill, which he d evolved on people such as Geoff (Budlender), particularly Geoff (Budlender) great skill in being able to analyse a law, see how the law could be attached to a principled stance and then to choose the correct case to test that. He
9 wouldn t just and he d wait for the correct facts to come along because he understood that many judges, despite being apartheid appointed judges, would be influenced by the particular facts of a particular case. So for him it was very important to understand the particular issue involved, understand the principle link the law to the principle, and then to find a case with the correct facts. And he would wait for the correct facts. He was brilliant at doing so. And that s why there was so much success in those particular trials. But those were the high profile trials. You know, there was a lot of work being done in a number of fields at the LRC, for example, on the educational front, the Fellows, the work at legal skills at the University of the Witwatersrand, and the law clinics. It was really the introduction of a public interest culture that influenced many, many people over the years that came through its ranks. And I think the lasting contribution that the LRC made is not in the high profile cases, it s in that basic hard work that people did in introducing the culture of service through law. That public interest service through law. That wasn t your sort of radical or socialist or didn t have any of those affiliations, was simply public interest law. You know, that for me is the success of the LRC and that in fact is the need for the continuation of the LRC. Because it s very easy to become supine when there s still poor people out there and they still need services. And I think, you know, that ethic and that culture and that organisation and that impetus is needed just as much now as it was then. Because, you know, the LRC didn t bring about social change. It obviously played its part. That was the momentum by the organisations on the political events of the day and the political trends that were happening internationally and locally. But now there s still poor people, and there s still a need, and it s just a little sad for me that the LRC flourished in the political climate of the day and it s much more difficult for it now to survive. But the need is great, you know, it s a tribute to the LRC that it continued on the basis of principle even in a liberated South Africa. I m wondering whether granted you ve said that the test case approach is important but there s other work that was done. I m wondering whether you could talk a bit more about those other cases? Were you involved in the Hoek Street Clinic at all with Morris Zimmerman? Yes, yes. I did my duty at the Hoek Street Clinic. In fact got mugged, or attempted mugging in the Hoek Street Clinic. But no, it was in the Hoek Street Clinic that we took on case after case after case, where people knew that they had some relief against bureaucracy, and we recruited a lot of young lawyers, young black lawyer students, I mean, people who are now quite high up in the legal profession, all went through the Hoek Street Clinic. I think there s hardly a progressive lawyer in Johannesburg who didn t have some or other connection with a clinic such as that. So that work was done, and it allowed the LRC to spread its influence and its ethic amongst a wider circle of lawyers than just and that was important than just those that were privileged enough to be employed by the LRC. So it meant that people would come to the clinic and would work in the clinic. Students and young lawyers. And they d benefit by being trained by more senior people, and we d nitpick and correct their grammar, and the likes of they had a formal basic education as well as a public interest education and they were doing some public service at the same time, so it was a very useful tool for just basic education and for public interest and public interest service. And the as I say, the big advantage was that the ability of the clinic to
10 spread the public interest ethic amongst a wider constituency than simply just the people who worked at the LRC. And it provided a service. And it I think it empowered people too. And who knows what influence that had. By all accounts it seems that Morris Zimmerman was quite a different character. I m wondering what your memories are of working with him? Yes, Morris (Zimmerman) there were no frills to Morris (Zimmerman). He was just a good guy who did a good job. He had no pretensions to high intellectual or legal status. He was just a good man who did a good day s work, and he did it with a lot of energy and good humour. Completely uninvolved in any ambition you know, there were tensions in the LRC you can imagine putting a whole lot of ambitious young people in one organisation, inevitably there were tensions arising. Tensions did arise. They were never strong enough to disrupt the LRC. But Morris (Zimmerman) was completely outside of anything like that. He was a humble man and he saw a need to do a job and he was happy to do his job and he did it with energy, good humour and he was an inspiring sort of character because you were always comfortable with him. There was never any sense that you had to defer to him or you had to watch what you said, he was just a good chap. I m wondering whether you could talk a bit about those tensions, certainly there were some really able lawyers and it sets up competition, and I m wondering what those tensions were around? Well, obviously I think it had to do partly with the type of personality that the apartheid society created in the student movement prior to even the LRC s formation and the people who came through as student leaders just take (Geoff) Budlender, (Charles) Nupen and myself I suppose wouldn t have got there if they weren t firstly ambitious, secondly had political skills and thirdly were prepared to sort of elbow their way into positions of influence and leadership. I d like to exclude myself from that category but I suppose that would be naïve. And that carried through into the LRC. Arthur (Chaskalson) had a particular vision and a particular style of leadership, which I wouldn t describe as over-democratic. He led the organisation in a way that he wanted to lead the organisation. And so you played your role and you accepted the course that you were on. And, you know, those I, for example, personally at that stage didn t have the finesse, energy to try and lobby for any leadership position in the LRC. I was at a disadvantage in the sense that I was an advocate, so I wasn t the attorney at the coal face. And I expressed that dissatisfaction to Arthur (Chaskalson) when I left, I said: you know, clearly, it seemed that Geoff (Budlender) was going to become the leader and I accepted that and I thought that, you know, it was time for me to move on. Of course I stayed on for another three years in that Cape Town trial. But you know, then I continued doing labour work and stuff at the Bar but I needed some independence there. I d found that if there was any for me personally, I don t say it was the same for anyone else, but for me personally if there was any downside to the experience is that there wasn t that much room for creative creativity for me personally. Now that could have been just personally where I was at the time. There may be a number of reasons for it, which are not related to the LRC at all, but that s how I experienced it.
11 Is it because you didn t have enough litigation to do, or was it because the types of cases you were getting that didn t really enable you to set precedence? Well, partly that. I mean, much of our work was routine and repetitive type of work. I think I found expression for my own instincts once more in the alternative dispute resolution movement that grew later, and that s in IMSSA, and then after that I started an organisation which called the Community Dispute Resolution Trust, which tried to provide dispute resolution facilities in areas which had really been completely disrupted by apartheid. You know, the social fabric had been torn apart. What we saw as a need, having learned the dispute resolution ethic is for people in communities to be given skills to be able to deal with dispute where they had no access to justice other than that, to train mediators and arbitrators and the like. I became a fellow of the Ashoka I don t know if you know the organisation of the Ashoka I became a Fellow of the Ashoka through that and got involved in that, but at the same time keeping up my practice, or trying to keep up my practice as an advocate. This is in Johannesburg? Yes. So for that type of initiative, once in IMSSA and mediation, I saw the need for arbitration as well in the labour field and was instrumental in bring(ing) out the first trainers for the arbitration. So there again I was ahead of the game. I felt that in the LRC I was following the game, and, you know, rightly or wrongly I prefer to be in the head of the game than following the game. Fair enough (laughter). So the Community Dispute Resolution Trust, how was that different from the CCMA? Um the CCMA, the Commission for Conciliation, Mediation and Arbitration. The CCMA is a state run and state financed body, which is there to resolve largely individual disputes around dismissal and unfair labour practices in terms of the Labour Relations Act. The Community Dispute Resolution Trust was conceived outside of a legal framework and had no state backing. It was entirely funded by foreign donors. And of course when USAID then pulled the plug on funding of NGOs, something which I feel quite strongly about I must tell you. I think it s quite a negative step. This is 1994? Yeah, well, I mean, that s the USAID policy is they support governments when the government is capable of being supported, for America s own political reasons. And I must tell you, it s such a short-sighted policy and it makes me so angry that the goal is not genuinely to give substance and growth to a civil society, which is so important, rather than to the government of the day. Ok, it s important to have a good government and a principled government, and a constitutionally based government, that s vital. Democratically elected government, and it should have all the support it
12 can get. But to ignore the interests of society is too strangle democracy. And that s what South Africa so desperately needs is a strong civil society. But be that as it may, that s off the point. But that was much the motivation for the Community Dispute Resolution Trust; it was to try and meet the need for the growth of civil society in apartheid. There was the ANC and there were the union movements and the UDF and they were doing their job, but there was no I just saw that outside of that it was probably a good idea to make some contribution. So you started it in 1994? Uh no it was the early nineties, I think. Late eighties, early nineties. And how long did that run for? It ran for a few you know, I used my Ashoka stipend to employ and mentor David Story, who also came through our sort of community as it were. He s now working with Peter Harris. And so my involvement was formative and as a resource and organisation of support, I never really got involved full-time in the organisation. It lasted about well, it lasted until funding failed. And as part of my own commitment to transformation, I ensured that the leadership was handed over. In fact, I resigned as Chairman of the board and handed over to Lavery Modise, who had come through the clinic. At the LRC? Yes and he led the organisation for a while and then they called me back actually, which was quite nice, and we struggled on for a while decreasing funding. And I m sure it would have lasted longer had it had the formative energies in it, but it lasted about eight (to) ten years. So Paul, after you left the LRC, you were at the Bar, you started this organisation and then what? Well, I became a specialist in labour and administrative law. I was still representing trade unions largely. And it was only after 1995/1996 that I began representing management and my practice then became a more general practice still influenced by my former practice. But I still try to involve myself in transformation initiatives at the Bar. I m a member of the Duma Nokwe group, which is a black group at the Bar; they invited me to join them to assist with the development of young black advocates. And so politics never leaves you. Public interest never leaves you. But largely concentrated now on my practice and you know, waiting for one or other opportunity, (laughs) with changes are decreasing all the time. You know, because unless you re a real party member I never carried a party card because it s not my nature. I can t subject myself to a discipline imposed by others. I always feel very restless when and so you know I never got into the political mainstream after 1995.
13 I want to go back to the 1980s because one of the things is that under apartheid Parliament was supreme, and I m wondering why the legal victories that the LRC obtained weren t overturned by the apartheid government? Well I mean that goes to that problem or issue that s been the subject of many debates, is the nature of the apartheid state. Now it seems to me that for firstly the apartheid government believed I don t think ever believed it was evil, you know. And so when ethically or equity based decisions were made by judges, who were nominally independent, not always we faced some tough judges tough apartheid judges but anyway, apart from that that could keep me going for three hours, just the judge in this Cape Town KTC trial, horrible man. But, you know, I think it was part of their ethic to accept it. But I think the true secret is expressed if you just switch it off for a moment, I ll find the quote (Recorder turned off and the recorded interview resumes after a short while) You know, the problem that you ve raised in that question is the benign face of the apartheid government. Why it wasn t always cruel and why it wasn t always oppressive? And I think (J.M.) Coetzee captures that in Waiting for the Barbarians, where he pictures the benign magistrate, and later the military man comes in a performs all the acts of cruelty. But both are part of the oppressive state, and he sums it up brilliantly, he says, the benign magistrate, he is a civil servant, he himself speaks of the shame of office that will not go away. He understands perfectly that his own apparent decency and the brutal methods of the colonel who has come to wage war on the local barbarians are instruments of the same regime. And this is the quote that is so brilliant: I was the lie that the empire tells itself when times are easy, he, the truth that the empire tells when harsh winds blow. (Two sides of imperial rule, Penguin, p. 133). So that s the answer to your question. Thank you piggybacking on that question, what do you think is the reason for the LRC not being banned faced with threats of closure during the 1980s, which really was a horrific decade in terms of resistance and repression? Well, you see that was part of the trick of the apartheid government, was to have the benign appearance, the lie. So in a sense we all contributed to that lie. But exploited it. you see, and that was the tension between, you know the apartheid government wanting to give a show of the benign state, and people like those that started the trade union movement, wanting to exploit that for their own ends. And it s the unintended consequence, again, the consequence of the apartheid lie and allowing organisations like the LRC and others to exist and the trade union movement to exist to perpetuate the lie. Was exploited by the organisations who saw a gap and could exploit it. Now there s lots of all the French intellectuals, you know those guys like (Nicos) Poulantzas who you can not understand one paragraph of what they say. I mean, they express that in intellectual and political terms, but it s exploiting the contradiction and the cracks in such a society. And there was a tension in that. Apart from that, I mean, the LRC was never really a threat, because at the time you had all the international
14 boycotts, the ANC in exile, the pressure of the UDF locally, and the trade union movement, Umkhonto we Sizwe, you had, I mean, certainly the government had enough on its hands and here you had a respected advocate from the legal profession and I don t mean to be disparaging about ourselves as white lawyers largely white lawyers at the time. I mean, we were part of that façade, although we sought to exploit it and trump it. But the LRC was handled in a very strict and disciplined way by Arthur (Chaskalson) to ensure that it did its job and no more than its job. So our job was to exploit the space that the LRC gave us and no more. So we weren t parading down the streets with banners and placards, and Arthur (Chaskalson) was quite nervous about our links with trade unions, although we forced the issue eventually. But those were issues that were debated in the LRC: should we act for trade unions? And the argument was: well, they re not really penniless and poor, they ve got their own resources, they don t need us, and we re serving the penniless and poor. And, you know, that was an issue that (Charles) Nupen and I and others forced through. But essentially Arthur (Chaskalson) sought support in established institutions, the support of the law societies for the attorneys and the Bar Councils. He lobbied, he had a very strict control and discipline. He had international support, and he was very careful in how the organisation was profiled. And that it wouldn t have served the government s interest to ban us. I mean, it was more concerned with the Neil Aggetts and the trade union movement, and really those were far more serious threats. I don t for one moment pretend my time at the LRC was hugely significant in historical terms. There were other more important, from a well, let me qualify that. For the purposes of overthrowing the apartheid government I don t think the LRC can rank itself amongst the front runners. For the purposes of changing society, the ethics and values of a society, I think you can really put the LRC up front. I was going to ask you about the Rikhoto case and the Komani, because both overturned fundamental aspects of the apartheid legislation Yes. But didn t I don t think weakened the apartheid state. There were economic and other organisational influences internationally and locally that were having that effect. There was nothing like the so-called Soweto riots or things that the LRC played a part in. Although but we were supportive. We did give support to the individuals within the movements and the life. So whilst those were significant decisions that was a scenario played out in a legal field. I don t think it really caused any great cracks in the regime. In terms being there when the LRC was also having Fellows from different backgrounds coming in, I m wondering, were there tensions the fact that a lot of the lawyers, attorneys and advocates, had come from a NUSAS aligned background, so that almost gives you a sense of commonality, even if there is competition there s a sense of commonality. And then you have Fellows who perhaps black Fellows, or even white Fellows, but who haven t come through that same trajectory perhaps, do you think it then set up this kind of tension? It might have but of course being on the inside track one wouldn t have necessarily noticed it, so now that you raise it look I think there was a more significant intention that existed at the time, and that was that the young black lawyers that came through
15 didn t really express their frustrations and anxieties as much as they would have liked, you know. They might have amongst themselves I suspect if you talk to Edwin Molahleli and Lavery Modise they would have said: that Paul Pretorius telling us to correct our grammar, you know, is really beyond the pale. So there might have been those sorts of unexpressed tensions that the various groups would have discussed amongst themselves. But I don t think they really caused any serious detriment to the organisation as a whole. I mean, I know that that the LRC didn t bring in black leadership as much as it would have wanted to. What do you think was the reason for that? Well, it was there was only room for so many people. And so many ambitious and talented people. Ambition and talent doesn t create much space for anybody else. And I don t think although there was a consciousness of the need to transform the character of the LRC from a racial point of view, and I think it was still at the time I think the liberal ethic was pervasive, that it was ok to have we were non-racial, and so long as we were doing the work didn t matter, the colour of the people who did it wasn t paramount so it wasn t in the front of the agenda. You know, transformation, people are still grappling with that issue, and the Bar is still grappling with it, and it s causing huge problems at the Bar and that s 2007, not 1986. In terms of I ve had the pleasure of interviewing some SALSLEP members at the time it was called SALSLEP and a lot of them remember, particularly the 1982 trip that was with Reuben Clark senior, Reuben Clark, his son, the Third, and Jamie Kilbreth. And they do name you as one of the people that they remember in addition to Karel Tip, and I m wondering whether you have memories around that visit from the SALSLEP s American lawyers? Look, not that visit in particular because we used American expertise organisational capacity and money quite extensively in everything we did. IMSSA, LRC, CDRT, all those organisations were quite dependent on the training and the expertise that we got. That not withstanding a political tension with America that leads me down another path of stories, but so we always had close relations and very cordial relations and very friendly and energetic relationships with the progressive Americans who sought to help. For example, Bill Drayton, I mean, I really love that man, he s a great fellow and I m sorry that I don t keep more contact with him. That s of Ashoka. And the people you have just mentioned, we would see them in America and when we had occasion to travel, which was not very often, and see them when they were here. And I suppose they warmed to our enthusiasm and they were we gave them a space to express their public interest, and there was a synergy in the relationship which I suppose and, I mean, after all, I think we are nice guys, so they (laughter). So generally I think there was an affinity and a synergy that gave energy and warmth to the relationship. Were there parallels public interest law has a long tradition in history in America, through the NAACP, etc, I m wondering whether the LRC sort of in any way was influenced by public interest law in America?
16 Yes, I have no doubt that it was. Firstly, the public interest ethic in America would have inspired a lot of support. I mean, we got a huge support from Ford Foundation and others, without which we couldn t have existed. And so that tradition which filtered through the funding organisations back to us. Then the expertise. I know that Arthur (Chaskalson) relied heavily on his relationships with people in America, (Jack) Greenberg and others, to give intellectual content to what he was trying to create here in South Africa. So both at the level of individual expertise, tradition and logistical and financial support, I think there are very clear links. And now that you ve raised the issue, I remember being very conscious of learning about the civil rights movement and meeting the people and being very pleased to meet the people who were involved. Yeah, those were tough times in America. And every time I get a chance to watch on the history channel what those lawyers did in the South and what they suffered actually, it s quite serious stuff. You ve mentioned the funding, and Felicia Kentridge was really instrumental in getting core funding for the LRC early on, which was Ford, Rockefeller, Carnegie. And of course, as so often happens in transitional countries, South Africa, it s no longer fashionable in a way to fund here, and the LRC is now faced with this funding crisis as such. Argument then arises that perhaps in fact, the LRC ought to be garnering funding internally, whether it s within the legal fraternity or the corporate world. What s your sense of that? Phew. I mean, you re raising a number of difficult and quite sensitive issues. The public interest ethic is not a widespread phenomena in South Africa, and I presume in other countries as well. It was exploited by the political movements and I don t use that term negatively it was used by the political movements in order to get political and logistical support for the apartheid struggle. But that didn t mean that there was any public interest alliance between the ANC and the American public interest ethic for example. And essentially the do-gooder ethic is a liberal ethic. And liberalism is not a hell of a popular ethic in this country, as Tony Leon will tell you. So it s of the nature of transition and of the society that we are now, unfortunately very materialist, and I think the American ethic that has triumphed in South Africa is the Nike ethic, and I use that to represent a material well being and success, you know. It s a materialist ethic unfortunately, and that characterises our society. And the political ethic of the party as it were. Those are the dominant political forces. Not much room there for sort of public interest. What s public interest, you know? The government is there to do the job, that is the sort of argument. I mean, I don t buy that argument at all, and I think it s very sad that the party of the day seeks to control the NGO movement, for example, instead of letting it, setting it free to grow a vibrant society. So look there are exceptions of course. There have been wonderful NGO movements in the AIDS field for example. I mean, that s been a remarkable public interest movement. The issues have changed, you know. The issues now are issues such as AIDS, service delivery that doesn t have an NGO link it seems to me. So the need for a public interest law firm is not perceived and perhaps nor is it a priority for the NGO movement. AIDS of course is and there s a remarkably successful NGO movement there.