ARTHUR Chaskalson’s last public address was just weeks ago. It expressed two qualities he valued highly in others. The first is a relentless rationality. The second is that law is nothing if it is not underpinned by the moral commitment of those who work it.
Speaking to a packed audience of the Cape Law Society in Kimberley, he spoke out on the Legal Practice Bill. He did so in the tradition that judicial reticence on public issues ends when it comes to the rule of law itself. He said the structure the bill proposes opens the door "to important aspects being controlled by the executive" and that this was not only in conflict with international legal standards but was "inconsistent with an independent legal profession".
The challenge he issued to lawyers was twofold. First , he called on the legal profession to do what he called its duty, no less, "by raising its voice against measures calculated to erode" its independence. In its present form, on his meticulous analysis, the bill does exactly that. But he also challenged the profession in another respect. It "would have no right to assert the public interest if it were to serve only the elite". To the last he stood with those who think it law’s duty to comfort the afflicted and afflict the comfortable.
Chaskalson graduated BCom LLB cum laude from the University of the Witwatersrand in 1954. He was an outstanding footballer, playing for Wits and the combined South African universities team. Called to the Johannesburg bar in May 1956, he took silk in July 1971.
In 1978, in the words of Sydney Kentridge, Chaskalson "stepped out of a brilliant practice" to take up the modestly salaried post of director of the Legal Resources Centre. In June 1994 he was appointed the first president of the newly established Constitutional Court, and after Ismail Mahomed died in 2001, chief justice. He retired from active duty in 2005, but continued to deliver lectures and to advise international institutions concerned with justice in South Africa and across the world.
Chaskalson’s professional life was marked by three stages. First he was the most cerebral of advocates. His manner was formal, even cold. A devastating cross-examiner, he was clear but soft-spoken in argument. His manner may have dissuaded an easy camaraderie, but he was a natural leader at the bar. Twice chairman of the Johannesburg bar and for five years vice-chairman of the General Council of the Bar, he led South Africa’s advocates in innumerable confrontations with the John Vorster and PW Botha governments over legislative and executive measures that were striking at human rights and an independent administration of justice.
As a young junior, he offered his services in the Rivonia Trial. His calibre was immediately apparent. Cool and analytical as he was at all times, he loathed injustice and cant.
It was these qualities which made it inevitable that he would move to a life beyond a lucrative practice. Diffident and private, always embarrassed when he was made the focus of attention regarding human rights work, he was reluctant to explain quite why he took that path. A clue is a passage in Albert Camus’s Notebooks, which he marked: "For thousands of years the world has been like those Italian paintings of the Renaissance where, on cold flagstones, men are tortured while other men look away in the most perfect unconcern. The number of the ‘uninterested’ was immense compared to the interested. What characterised history was the number of people who were not interested in other people’s misfortunes."
He wanted to live his life differently. Thus began its second phase.
His successor as chief justice, Pius Langa, said he never knew anyone who worked harder. This was true in his founding leadership of the Constitutional Court and particularly true of his years leading the Legal Resources Centre. He was at the forefront of the challenge to influx control, successfully arguing the challenges to the Bantu Urban Areas Act, first in the Komani case, then in Rikhoto. The nature of his work at the time is best summed up by the comment of a bewildered rural client of the Legal Resources Centre about government officials: "The trouble is, they don’t work with law."
Chaskalson led a new generation of lawyers who, through the courts, forced spaces between the flagstones of oppressive legislation. In a time of great legal creativity, he inspired many by his courage and example.
This phase of his life developed into the third. Earlier than most, he saw the need for an entrenched Bill of Rights against which both executive action and acts of Parliament could be tested. For him the essence of the rule of law is that all power is constrained by limits, and that it is the task of the courts to patrol its boundaries.
He became, with Marinus Wiechers and Ismail Mahomed, a drafter of the Namibian constitution after the Turnhalle talks. He was a natural leader in South Africa’s constitution-making process, and an early advocate of a separate constitutional court. There was little surprise when Chaskalson was made its first president.
Early sneers about the court being "the Marx Brothers" — a reference to its supposed left-leaning composition — were soon disproved. A legislative and an executive act of president Nelson Mandela were set aside as not constitution compliant.
The court contained mercurial personalities as well as great talent. Chaskalson managed all this in his quiet reflective way. His ascendancy, without assumption, was clear at every hearing. Rex Gibson, editor, vividly described him as a "serene secretary bird, head inclined, mild eyes rimmed by heavy spectacles, arms folded like wings, long legs crossed in front of him".
Chaskalson’s deep experience across all fields of commercial and public law gave him the ability to write or contribute to the court’s leading judgments. Their theme was a passage he liked to quote from Louis Brandeis: "In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously … for good or ill, it teaches the whole people by its example. If the government becomes a lawbreaker, it breeds contempt for law. It invites every man to become a law unto himself."
Chaskalson is survived by his wife, Dr Lorraine Chaskalson, sons Matthew and Jerome, and grandchildren.
• Gauntlett is a past president of the Cape Bar and chairman of the South African bar.