Socrates, Mandela and dignity
The philosopher and the revolutionary held values that have stood true for two millennia
Adecade after the death of Nelson Rolihlahla Mandela South Africa is far from a paradise. However, it is further from the apartheid state in which the vast majority of its people were second-class citizens, if citizens at all.
Behind the obvious problems of poverty, inequality, corruption and other crime rages the ongoing struggle for decolonisation. This sometimes chaotic yet necessary debate happens in several fields, but especially in academic and legal circles.
Young academics from critical race theory and Africanist circles call themselves “constitutional abolitionists”. The Constitution protects white privilege, it is said. Vulgar opportunism, or ignorance, causes public figures such as former minister Lindiwe Sisulu to accuse black judges of being enslaved by their colonised minds.
The shamefully low levels of former president Jacob Zuma and advocate Dali Mpofu’s court tactics have shocked South Africans and embarrassed our legal profession among our African neighbours.
In debates about the transformation of the legal curriculum the dominance of European law over, for example, African customary law is often central. “Epistemological diversity” is needed in the sciences. We cannot continue to learn mainly from the work of generations of dead white men, from Plato to Einstein. (Karl Marx often looks like the only saviour of the reputation of dead white thinkers.)
Perhaps the conduct of Mandela — accused by some of having “sold out” — can shed some light on the above. As a lawyer and an accused he was no stranger to Western courts.
After addressing a crowd of 500 in 1952, Mandela was convicted and sentenced to nine months’ imprisonment, wholly suspended. In his autobiography he described the judge as “an able man”, who was “fairminded and reasonable”.
Based on his conviction, the Law Society applied to court to have him struck off the roll of attorneys. He opposed the application, denied nothing, remained defiant and expressed no regret.
The judge found that he was motivated by a desire to serve and worked for the repeal of laws he considered to be unjust. He could not be expected to express regret. His conduct did not justify disciplinary action against him. This judgment made a deep and positive impression on Mandela.
In his famous 1962 “Black Man in a White Court” speech he applied for the recusal of the white magistrate. He described how he felt as a black man in a court where everyone, from the presiding officer to the court orderly, was white. He feared that he would not be given a fair trial and did not consider himself bound to obey laws made by a parliament in which he had no representation.
However, he made it perfectly clear that his remarks were “not addressed to Your Worship in his personal capacity, nor are they intended to reflect on the integrity of the court”.
“I hold Your Worship in high esteem and do not for one single moment doubt your sense of fairness and justice …”
The lengthy treason trial of Mandela and others followed on the adoption of the Freedom Charter by the Congress of the People at Kliptown in 1955. The state’s argument was that the democratic society envisaged in the Freedom Charter was only achievable through unlawful violence. It was treasonous to pursue a democratic South Africa.
Mandela gave detailed evidence, was cross-examined by the prosecution and questioned by the bench and continuously addressed the three judges as “My Lord”. After three years, all the accused were acquitted.
In numerous speeches after his release from prison in 1990, Mandela promoted a democracy based on the rule of law and a written Constitution with a bill of rights, enforced by an independent judiciary. In 1990 he stated in Bloemfontein: “[We] praise those judges and magistrates who have defended the integrity and independence of the courts and whose enlightened judgments are beacons of hope for the future.”
Often — such as when he opened a conference organised by the ANC Legal and Constitutional Committee on a constitutional court for South Africa in 1991 — he joked about the respect he had learnt to have for judges.
As president, Mandela accepted the judgment of the constitutional court when it set aside his decision to bring an Act of Parliament into force, in the Pharmaceutical Manufacturers Association case. He furthermore willingly gave evidence and subjected himself to cross-examination in the South African Rugby Football Union
matter on the appointment of a commission into the affairs of rugby.
Before looking at Mandela’s bestknown court experience, spare a moment to remember another fearless fighter for the freedom of all, almost two and a half thousand years earlier, on a distant continent.
Socrates, the founder of Western philosophy, roamed the streets of Athens in ancient Greece, encouraging people to think, by asking questions. When the Oracle of Delphi told him that he was the wisest man on earth, he could not believe it, because he realised how ignorant he was. Thus he travelled the world of his time and debated with politicians, poets and craftsmen. Then he conceded: he was indeed the wisest, because — unlike others — he knew that he knew nothing.
At an advanced age, Socrates was charged before a people’s court with, among other things, corrupting the youth of Athens and questioning all things in heaven and earth. Addressing the court, he made it clear that he was not a lawyer but an ordinary old man. He would not rely on litigation tactics, clever arguments and technicalities. The people knew him. What he did and said was there for all to see and hear.
If, in the opinion of the court, his conduct called for the death penalty, so be it. The problem was theirs, not his. He left the court with little choice. After being sentenced to death, he declined an opportunity to escape, asked someone to pay an outstanding debt (a rooster), voluntarily drank the contents of the poisoned cup and kept philosophising with friends until he had to sit and then lie down to die.
During the Rivonia trial, Mandela — in one of the most famous speeches ever made — and now engraved in granite in a hallowed space in the constitutional court building — publicly told the court of his life-long struggle for the African people, against both white and black domination, and for the ideal of a democratic and free society in which all persons live together in harmony, with equal opportunities.
Those around him feared that his ringing concluding words might attract the death penalty, which was a real possibility: “It is an ideal which I hope to live for and to achieve. But, if needs be, it is an ideal for which I am prepared to die.”
Some would argue that, before Pontius Pilate, Jesus of Nazareth also did not lie, or deny what he had said and done, and left his fate to the erratic governor and bloodthirsty crowd. However, according to the narrative of the gospel, he knew that he was going to rise from the grave and assume much higher office, three days later. Socrates and Mandela had no such assurances.
They did not see the court as a circus and justice as a game. Rather than lying about their actions, they explained them. They did not remain silent in order first to find out whether witnesses recognised them. They did not request a postponement of proceedings, based on the alleged ill health or lack of funding for their high-priced lawyers. They did not lay charges against their prosecutors or journalists.
Mandela made it clear that he challenged a system and did not attack the personal integrity of a judicial officer trying to do his job.
When the verdict went against them, they did not concoct a bizarre rescission application, as was done before a clumsy-looking constitutional court in the Zuma matter. That the charges against them resulted from a political conspiracy by the powerful was obvious but not their defence.
Do we need epistemological diversity to determine how to deal with criminal charges emanating from an unfair system or injustice or, simply, to determine how to behave with dignity in a court of law or other public space? Then, let us not be fascinated by the cynical, often ridiculous, antics of leaders hell-bent on self-preservation and their profitable posse of lawyers. Rather look at the examples of the warrior from Mvezo on the banks of the Mbashe River in the Eastern Cape and the troublemaker of ancient Athens.
‘Let us not be fascinated by the cynical, often ridiculous, antics of leaders hell-bent on self-preservation and their profitable posse of lawyers’