SA Constitutional Court Judge
interview with Rupert Taylor and Aubrey Lekwane
Johannesburg, Constitutional Court, 24 March 1998
Taylor: The first question is a very general one indeed, it is who in your view was the conflict between in South Africa between 1976 and 1990, I read from your book (Protecting Human Rights in a New South Africa, 1990) that you reject a kind of either or interpretation of the conflict, here in the conclusion of your book on…
Sachs: Well I certainly don’t accept that is was a conflict between black and white.
Sachs: It’s a conflict that had a very powerful racial component to the extent that race was used as an element of state policy, the laws revolved around race, constitutional arrangements were based on race, people were classified, and it became the foundation of political life. And the arguments for the defence of the status quo and resistance to the status quo were always presented in terms of race. But one found that in terms of who were lined up on the different sides, that didn’t correspond simply to race. And I am not simply referring to people like myself - sort of maverick whites - in fact there were quite important sections of the white community who opposed the system as it operated, to a greater or lesser extent, and there were strong elements of the black community who were incorporated into the structures of apartheid - benefited from it and defended it. And… so that as a matter of practical politics it wasn’t simply black versus white, white versus black. But perhaps more important than that in terms of conception, in terms of the philosophy involved, it was regarded very important on the side that I was, that’s the ANC side in those days, to emphasize that the struggle was against a system and not against a race, against a nation. I can still remember in 1960, I mean you go back to 76 and to me that’s recent stuff, you know.
Sachs: In 1960 I defended a number of people from the Pan-Africanist Congress in Cape Town who’d marched on Parliament, and they were charged with the incitement to racial hostility, and one of the statements they used to make was ‘How can you hate the whip and not the man who wields the whip?’ So they were saying you can’t simply hate the system, you’ve got to hate the people who function within the system. But nevertheless this difference turned out to be of fundamental importance. And my experience in Mozambique was very strong in the same direction. Samora Machel, Frelimo, their line was constantly that our struggle is not against a race, it’s not against a nation, it’s not against a people, it’s against the system of colonialism. And they won very important allies from the Portuguese community, and also had very important opponents from the indigenous Mozambican community. And they found in practice that often the people who inside their own ranks beat the racist drum very powerfully and objected to Edwardo Mondlane because he was married to a white woman. It turned out to the people who ended up collaborating with Portuguese colonialism and they were using racism for self advancement, for ambition, rather than to transform their country. So I am just steeped in that whole - the non-racial philosophy, if you like.
Taylor: What about the class dimension though? the class dimension?
Sachs: The class dimension certainly came into it, and again for me, I come from there… my dad was a trade unionist, my mum was active in those circles, and… (cell phone interruption) And their used to be intensive debates in the ranks of the ANC at one stage about the role of the white working class, and in the paper that I gave on culture that created quite a stir, and I asked the question, you know, ‘Why is there nothing about love in the literature and culture and drama of the ANC? Does it happen that when ANC people go to bed at night they discuss the role of the white working class?’
Sachs: You know, use that as an example of that kind of, kind of, kind of issue.
Sachs: And it turned out in fact they went to bed that night discussing my paper.
Sachs: That sort of faded a little bit as time went by, but there was intense discussion about the role of the African bourgeoisie, a discussion that hasn’t ended, it’s reviving to this day. And I can remember Pallo Jordan playing a very important role intellectually in that regard, in the late 70s it started, but really in the middle 80s, and rejecting the line that simply said the African bourgeois class, middle class, were the allies of apartheid, that they, their class interest separated them from the African masses, the most exploited section of the population, and that they were part of the enemy or very close to the enemy. And he said you turn them into the enemy if you treat them in that way. And he said if you look at the whole way white supremacy is, functions in South Africa, they in fact destroyed the African middle class. There were more independent African newspapers at the beginning of the century than there were in the 1980s. Property rights were taken away and no significant African entrepreneurial class was established. And that in fact the national liberation of the African people presupposed an active role for the middle class, the only question was would they, their interest totally dominate, or would they be in such a strong alliance with the working people that they wouldn’t be able to dominate the proceedings, but nevertheless they would be an active part of the nation. He persuaded me, Oliver Tambo was thinking in very similar directions. To try and, to some extent Oliver Tambo’s approach was a strategic one, it extended to the chiefs as well - the traditional leaders. That if you treat them as the enemy and you attack them and try to kill them, then they have no option but to join the ranks of apartheid and see their future in bantustans and protection by Pretoria. If you treat them as patriots who suffer the same indignities as the rest of the nation, but who might be tempted to collaborate in certain aspects… then you can draw them into the broad process of change and transformation. And, and looking back now, I personally feel that they were quite correct, provided that you have a strong trade union movement to defend the interests of the workers as workers, that you have strong NGOs there to see to it that all of the different marginalized groups and groups that are not all that powerful in themselves aren’t in society where market and money increasingly becomes predominant aren’t left out. But it’s not to say there’s an irreconcilable war between the two, and these irreconcilables usually end up with the poor losing out. Sometimes less is more and more is less, and you up your demands and you categorize people, and you establish these extreme contradictions, and you end up losing everything.
Taylor: Do you think that the ANC gave enough attention, or maybe left it rather late in the day, to engage in underground political work in terms of engaging with the trade union movement, in terms of engaging with progressive NGOs within South Africa?
Sachs: Well, I can’t say to much about that, I was working on legal questions.
Sachs: I was not in touch with underground work and mass work at all, so I wouldn’t know exactly what was done. But the sense that I got was that it wasn’t left till late in the day, that a lot of these bodies were established at the initiative of the ANC, there was a lot of double membership, and that in a way it was some of the good that came out of bad, in the sense that you couldn’t have a legal ANC, it encouraged the formation of grassroots organizations close to the communities, with dispersed character. I think that was very very helpful in South Africa, it gave an input, it prevented the undue bureaucratic domination and control that you might have got otherwise, particularly dangerous in circumstances of legality, where you have to have centralized command and tight discipline, it could also give rise to a lack of spontaneity. So there was that rather extraordinary combination of the closed structures that underground resistance required -and there has to be a lot of discipline - on the one hand, and the great degree of spontaneity and organic development on the other. You pay a price for that, and the two don’t always harmonize easily. But I think that’s the kind of tension that’s very appropriate, if the one dominates completely, at the price of the other, in other words you only have underground structures and discipline, you can end up with a very authoritarian approach or very remote, very centralized; if you only have spontaneity you end up without a coherent philosophy, and people going off on their different tangents, not pulling in the same direction, lots of power-plays by local leaders, no sense of a coherent philosophy or discipline, or sense of loyalty. I think in the end it worked out reasonably well, maybe, I mean I’ve always been called an optimist in relation to the future, maybe I am being a bit of an optimist in relation to the past, forgetting the struggles and the clamors and the complaints and so on.
Sachs: But to the extent that subsequent developments to some extent throw light on what happened earlier, I would say that there was a great degree of congruence. And the congruence came out, not only out of sensible intelligent leadership but out of the situation itself, the demands of the situation.
Lekwane: When tensions arose within the ANC, particularly the underground, and I’m referring specifically to Mozambique where you must have been involved with underground operations, where you able to intervene when..?
Sachs: No, you know, I was in Mozambique I was there as a law professor, and then directing research at the Ministry of Justice, and I was never involved in underground work - I was in South Africa before I left, before I went into exile. You know, I was just an ordinary person having a double life; a public life as a lawyer and politically active until I was banned. And then when I was banned carrying on clandestinely. So I wasn’t involved in any of that. Where I was involved was in relation to the violations of human rights of ANC members, of people captive of the ANC in the camps in Angola, and Oliver Tambo brought me in - it would’ve been probably about 84 - to help draft the code of conduct to deal with those questions. And I think of all the legal work I’ve done in my life that was possibly the most difficult and the most significant. It was really drafting a code of criminal law and criminal procedure for a liberation movement that only had embryonic organs of government and control and security, that was nevertheless trying to get rid of, what I regarded and Oliver Tambo certainly regarded as terrible abuses that were taking place in the name of the organization.
Lekwane: Some of the people who we have interviewed see the nature of the conflict as a war. What would you say?
Sachs: It had elements of a war, in the sense that there was no constitutional framework for resolving the positions, and the positions were profound, they weren’t just over details; they were over the very nature of this society and human relationships, concepts of citizenship. So from that point of view it couldn’t be done through parliamentary means, and after Sharpeville in 1960, the banning of the organizations, the destruction of the call for a National Convention in 1961, armed struggle started. And it was an important component part, but I wouldn’t say it was a war with a civil component, I would say it was a popular political struggle with a military component. It was always understood as that, sometimes the imagery of war was used, but I think it was important that it was never seen simply as war. You know, there’s a statement all is fair in love and war, and it’s not true even at international law, that there are certain principles governing what can be done in the conduct in war, but they’re very very limited, and as far as the liberation movement is concerned, the war or the liberation war in which people were engaged, had very very extensive… had a framework of extensive controls, and even right at the end when the question of civilian targets and soft targets and so on cropped up, it was simply to articulate a softening of the very rigid controls that had been established since 1961. In 1961 it was only physical targets, no loss of life at all. After that it included loss of life, but loss of life of the military and security forces, and then in the 80s when there was a lot of pressure from operatives and so on, to say we can’t function; we can’t lay down mines, because mines might kill innocent civilians, we can’t plant bombs in certain places even in police stations because it might kill others. The decision was taken that provided the principle target was military, the fact that it might involve the possibility, the risk of killing civilians, it’s a factor to be taken into account, but it wouldn’t be decisive, whereas it would have been decisive, and there was a clear rejection of going for civilian targets. Now I’m not sure what’s permissible in war; in war you don’t bomb civilians as such, but you do bomb economic targets, knowing that you’re killing millions of people, you’re blowing-up factories, you terrorize and you destroy the enemy - it was never war like that. And it was never understood that the battle would be won primarily through superior physical force, which is what a war is based on. You break the back of the enemy forces through being able to concentrate superior striking force at them at a particular moment, and you destroy their will and their capacity to continue. It was expressed in different ways, so there were different pillars of the struggle and the elements of the struggle and so on. Where the armed struggle was extremely important, was it established limits of courage, of sacrifice, of commitment, it extended those, and it said that, you know, we are willing to die for the freedom of the people. That was part of the message, it was a symbolical message, that we would do all that’s necessary to get rid of the regime. But within the principles, humane principles, of our movement. It also had a big effect in terms of raising morale of resistance inside the country, setting levels of competivity, that it encouraged other people to do things in the street, go on strike, mobilize, to march, confront the enemy. And then it was a reaction to those actions that gave rise to the highly televised conflicts, which also had an impact on the international opinion and paved the way for sanctions. So these were not separate things, there was a lot of overlap between them, and in the end it was the failure of the old South African government to get any significant black partnership that was responsible for the collapse of their apartheid ideals. And had no credibility at all and international pressure intensified, and that was brought about through a whole lot of factors.
Lekwane: It is interesting, I mean, at the time, you know at the time, you know, I was, I think I was conscious, quite conscious about 78, I think of the name Albie Sachs, Joe Slovo, Ronnie Kasrils - I wouldn’t really make a distinction…
Lekwane: …in terms of the activities that were, the work you were predominantly charged with. But did you get a sense that the apartheid government of the time had sufficient information to be able to make that kind of distinction, and whether that created any opportunities.
Sachs: Well funnily enough that sometimes I get stopped in the street and someone comes up to me and says ‘Hello Mr. Kasrils’.
Sachs: And then they’ll say ‘Yes I read about your wife in the newspaper the other day’, meaning Helena Dolny, Mrs. Slovo. So I am quite used to that, it became like a generalized enemy. And I suppose the fact that we were white, that we were male, that we had Jewish surnames, you know made us into a sort of many headed single monster. In fact, we had very different temperaments, and were involved in very different activities, totally different activities. And… I was never full-time with the organization, I was earning my living, write books and all the rest, but I was available for general political support - and on the legal side - my main work was on the legal side, helping to establish the legal department of the ANC. And that was small potatoes in terms of the hierarchy if you like of the greats of the important people in the struggle. Joe played an enormously important role in Umkhonto we Sizwe, extremely popular, stories about him like abounded. And just talking, we were talking earlier about the question of who the enemy was, the Soweto generation ending up in Angola in the late 70s, are learning not to express everything in terms of black consciousness, whites and so on, and so one of the guys there was explaining to one of his colleagues that ‘You know they’re not all bad, they’re some’, how did he put it, that’s right, ‘some of the racists are good, like Joe Slovo is a good racist’.
Sachs: And that became one of the jokes of the movement you know, that they’d got so used to not using the word ‘white’ and using the word ‘the racists’ - ‘the racist’, ‘the racists’ - they spoke about ‘good racists’ and ‘bad racists’, and Joe Slovo was an example of a ‘good racist’. Yeah, and then Ronnie was also very very popular, and by all accounts very brave, he must have gone in and out of the country many times, there was a… the irony is though, is that, you know I think there was a big reward out for both of them, ‘armed and dangerous’, and I was the one who got blown up, and I was just doing legal stuff. You know, that was the irony. I think in my case they must have known, if they had any information at all, you know, I was working quite openly, functioning quite openly. They would have known that I was simply functioning as a lawyer and a political supporter.
Taylor: Mmm. And as the reform process unfolded, to what extent did you yourself see it as an opportunity, I mean I know there was a big debate within the ANC ‘was it an opportunity or was it a trap’, where did you, where did you come down in this debate?
Sachs: From the middle 80s, 85-86, Oliver Tambo set up the constitutional committee of the ANC under Jack Simons, and I was one of the founder members, and there were about ten of us. And our work was cut out simply to start preparing for the constitutional transformation, we believed in it. And that’s when I got very involved in the Bill of Rights, it became like my particular area, and I did some research on that. And started to think about what the Bill of Rights means for South Africa, and how could we conceive of one as being a document that empowered the poor, the marginalized, rather than as a document that simply protected the interests of the possessed. And so as far as I was concerned it was getting ready for the day. But I must say, purely in terms of the loss of free temperament and all the rest, I strongly favored any possibility for a negotiated solution.
I felt very attuned to Oliver Tambo, possibly he had more influence on me than any other person, ever. And how you can be a patriot and you can support the armed struggle, and yet at the same time detest killing and detest the armed struggle. I heard him speak in 196- 67 in London, it happened to be at Peace House in Euston, and he was announcing the launching of the armed struggle, so it wasn’t a very well chosen place. And someone stood up at the back and he said ‘Units went into action…’, it was Chris Hani’s Luthuli Brigade, ‘and we killed five of the enemy’ and so on and so forth. And people cheered. And someone at the back stood up and said, ‘That’s murder!’ And OR stopped for a moment and he said, ‘Yes, that’s murder, and that’s what we’ve been driven to, that’s what we’ve been driven to. We wanted a peaceful solution’. But he didn’t say it’s not murder, you know. That was always his feeling, that killing is a very crude way of solving human problems, and there are times when, so many on your side are being killed and there is no chance of dialogue, that you have to fight back. And you’d fight back fiercely, but you always try and keep open the possibilities of dialogue. So I was personally very strongly on that side.
When the actual negotiations started, I once got into trouble, I remember it was at a workshop at Fort Hare, this would have been about 91, maybe early 92, when I said we can divide the negotiators on the ANC side into two; the ‘trappists’ and the - what was the other term I used - anyway those who see every proposal as a trap and those who see every proposal as an opportunity. The ‘break-throughists’ and the ‘trappists’. And I would have been on the break-throughers side, in the sense that one had to try and create and to find ways of breaking-through, moving forward, finding solutions. Others would be instinctively saying, ‘That’s a trap, that’s a trap. Don’t accept it’. And I was kind of rebuked a little bit to even suggest that there could be different wings in the negotiating group. So when I spoke up again afterwards I said every question has to be looked at from two points of view: from the break-through possibilities and from the trap possibilities. And of course that is the answer, that you have to be aware of both.
Taylor: Even though it was to some extent a war situation, although it would probably be better, to be fair to talk about it as being a struggle, how in that context do you define or how did you define the notion of ‘peace’. I mean I was reading, the other day I was reading the interview you had with Julie Frederickse - back a week ago now I guess - where you talk about going into the township in the 50s, and where the word ‘peace’ was not really accepted, that ‘peace’, the position of ‘peace’ was seen to be too much orientated towards the status quo. Is that a position that one could argue continued right up until 1994?
Sachs: Well, there was ambiguity about it.
Sachs: The desire for peace in my experience has always been very strong amongst what are called the ‘masses’. Because the main victims of conflict and violence are ordinary poor people; they can’t opt out of it. So that would be on the one side. But if peace means submission and a kind of passive acceptance of the status quo then there was opposition. In terms of South Africa there was a lot of pressure in the 80s, from the 80s onwards. I can recall that at the time of the Eminent Persons Group visit to South Africa there were jokes in ANC ranks about Tambo and Botha would be holding hands and… would be walking hand-in-hand in the Union Buildings. And these kind of jokes were ways of, one day someone can do a thesis on humor in the ANC, just on the very special role that humor played in transmitting messages, and dealing with problems and situations, and so on, and I took that joke as being a kind of ironical way of saying ‘Hey guys prepare yourself’, you know, ‘things might go quickly now, there might be a peaceful resolution’. And when it didn’t happen, and then afterwards with the PW Botha Rubicon speech, the feeling was, well you know; we’re willing, the general feeling was we’re willing but they don’t want it, you know the war continues. But I must say it was never a militarist organization, with a strong militarist ethos and… One always felt, I always felt it was a civilian organization, that some of the people put on uniforms, some of them loved guns, I know some friends of mine; ‘We were excited’, they’d come to me, and ‘Ah yeah a bomb went off in the post office’. I always felt slightly sick to be honest. But they just saw it, you know, as resistance. And I think there would be elation at the resistance, but there isn’t a strong military type culture, you know from parents to children and so on, in the ranks where I was.
Taylor: So, I mean, really what you’re saying is that the notion of peace in South Africa had to be linked to the notion of justice?
Sachs: That’s too metaphysical.
Taylor: Too metaphysical?
Sachs: That’s both the peace and the justice. People didn’t like war because they thought war was ennobling, war was grand, war was a great way of solving problems - they didn’t like it. They employed war because there was no other way, it was very painful, life in MK was extremely difficult, the soldiers couldn’t get back into the country, and when they did they were often betrayed, the casualties were exceptionally high, and although people spoke about our glorious people’s army, there wasn’t much glory - there wasn’t much glory. So the idea of solving problems in other ways was very attractive, and the notion that we want to inherit a country - a viable functioning country - not a set of ruins, was also, was also very, very attractive. So peace was a value in itself. It wasn’t simply an outgrowth of justice, but at the same time there couldn’t be peace until there was a just settlement or a process for the achieving of justice. And then, when it came to the actual negotiations, there was great suspicion. I was enthusiastic from the beginning, I felt the very pressures and forces that led to negotiations would see it through. I was confident that we would have a powerful team in terms of negotiating. That we had an elementary case, that we wouldn’t have to go in for Mickey Mouse stuff - that was the other side, to do that. That we would get a lot of international support, that we would have huge majority support in the country. And all those things turned out to be true. So I was very confident about what would be achieved through negotiations. I underestimated the extent of third force type activities. And the damage that that could cause. And at one stage when we were deadlocked in negotiations at Codesa 2, I actually argued for breaking-off negotiations at the National Executive Committee level, and I did that from a basis of my experience as a lawyer; if you’re getting nowhere, it’s better to say see you in court, than to just carry on talking, talking, talking and nothing’s moving. And what I said then, was that our conditions for returning to negotiations should be very clear, identified and easily achievable, as signs of goodwill: one, two, three. And, the hawks on the NEC were thrilled that Albie a known dove...
Sachs: …was saying what they’d been thinking right from the beginning, this was like ‘even Albie says that…’, you know? And in the end there was division of opinion, and President Mandela said well he’s noted what was said, and when the Boipatong massacre came a couple of months later, the format of breaking-off negotiations, for suspending them but on conditions that could be easily met, very concrete conditions, as a sign of good faith, that was already, we’d already established that. And I can also remember very strongly the people in MK didn’t want to hand over their arms, and one could see a very simple psychology at work, if you ask the MK to hand over their arms as condition for negotiations, then they distrust the whole process, they see negotiations as being designed simply to disarm them, and then if you loose out, you’ve got to start right from the beginning again. So, in fact, you increase the prospects of successful negotiations by allowing the military to keep their arms. And then it was done in stages, with the caching of arms, and that word ‘cache’, c-a-c-h-e, entered into ANC vocabulary, and people didn’t quite know how to pronounce it: cacha, cakke, catcha, couche… you know ‘We have to catch-e our arms’…
Sachs: …under control of the military commanders, and then it would be under joint control and finally would be handed over. And when I spoke in Northern Ireland, I explained that process to people there, at a time when the British government was insisting on the IRA disarming, and I was hinting that our South African experience suggested that’s the way to frustrate negotiations, not to facilitate them.
Lekwane: Well, ‘we hand in guns’, perhaps would deal with it, that the pronunciation was difficult.
Sachs: Oh, laugh.
Lekwane: ‘Dead letter box’ - I don’t know if you’re familiar with that concept? But in you view, I mean while you’re still in-exile how aware were you about the initiative of NGOs, particularly from around the 80s; where you aware, were there any linkages you may have felt, with these organizations…
Lekwane: …or some key personalities?
Sachs: No, certainly, certainly. We were all absolute slaves to news reports and some brilliant work that Jill Marcus did in London, with a team, was to go through the South African newspapers, and cull items of information of interest and we were all up to-date, but like ten days late. We knew what had happened ten days ago in South Africa, and of course the South African newspapers carried a lot of information. Maybe, submerged in the July handicap results, and who was wearing what, and all the trivia, she would pick out all this kind of stuff and one saw there that there were a whole range of organizations functioning. And that made us feel very proud. I certainly felt very proud. Some of them I’d had contact with before I left. I used to work with the Black Sash in Cape Town, with advocate Donald Molteno, we would give them legal advice on giving legal advice on changes to the pass laws and so on. And I have great admiration for the people doing that work, it was solid work, on the ground and done in a dignified way. So I’m certainly familiar with their work. There weren’t…
Taylor: The Institute of Race Relations?
Sachs: The Institute of Race Relations was an extremely important source, and particularly the annual survey. And it was something that, in our years of exile, we used very very extensively. And I must say it’s a matter of great regret to me, that the Institute hasn’t retained the across the board reputation, prestige, that it had. You know one of it’s great strengths was that it was very pluralistic, eclectic, on the anti-apartheid side, and one never felt it was partisan. From that point of view a marvelous source of information and it just kept something alive and going, all the time.
Taylor: In the 1980s it really took a non-activist role, many people have argued that under the current director it really changed direction; all the branches around the country shut down, it came to identify too much with corporate interests…
Sachs: You know it lost its pluralistic character, its non-partisan character, and it really was the first source, if one wanted to check-up in exile, if one wanted to check-up, to get some hard factual information for an article, for a speech, you went to the annual surveys.
Taylor: You came into contact with, I take it, Idasa meetings?
Sachs: Funnily enough I missed the first one at Dakar. Pallo Jordan contacted me and said there’s a meeting being organized in West Africa, would I be available. And I’d been to meetings in West Africa and all over the world, and I had to ration my visits away from Mozambique, I had a full time job, and he kept such strict security he didn’t tell me, ‘Albie don’t miss this meeting’ you know, and to my horror afterwards I’d discovered what I’d missed. But I did meet with a group of lawyers who came to Harare in January 89, and for me that was extremely important.
Taylor: Was that around the constitutional guidelines and the role of law in the new South Africa?
Sachs: Yes. Yeah, but is wasn’t even on the substantive thing, you know, it was the human interaction; hearing Afrikaans spoken in that simple way of ‘Pass me the salt’. And, you know, in a normal way, by normal people, whom one liked. And, very good friendships emerged from that, that have continued to this day. But even more powerful was the meeting with many Afrikaans language writers and that was in, I think that was in, that would have been in July, anyway it was later in 89, at the Victoria Falls. And that was such an emotional meeting, where the warmth, the passion of the encounter, the tears, and both these meetings gave me that total confidence we’re going to make it in South Africa. It had nothing to do with the agreements on substantive questions and so on, there wasn’t much agreement with either… it was the human interaction and the sense of need, mutual need, and willingness to embrace each other.
Taylor: Is the Dakar meeting a very crucial event? or..?
Sachs: I think it was, it didn’t create everything, it gave an impetus, it materialized, it symbolized, not quite a catalyst - it was more than a catalyst in that sense. You know, it was long overdue, and the willingness on the ANC side had been there all along.
Sachs: Oh yes, from the 50s. It’s part of the ANC tradition. No, that was nothing new. And you find it going back with Luthuli writing letters to Dr Malan, to Strydom, and Strydom chucked it into his waste paper basket. It’s part of African culture if you like, that...
Taylor: There was no real debate within the ANC that you were aware of about whether or not there should be contact with people like van Zyl Slabbert and Alex Boraine who were…
Taylor: …they’d just, at that time, left Parliament?
Sachs: I’m not aware of their being any problems in that regard. I think there was a debate that if we put all our eggs in the negotiation basket, we’re going to negotiate badly, because we’re not going to have the thrust and the power to win. And people often said you can’t win on the negotiations table if you haven’t won on the battlefield. You can only loose at negotiations what you’ve won on the battlefield - that kind of language was used. But… and there was a time when Thabo was seen as the strong negotiator and Chris Hani as the strong popular mobilizer, but each one accepted, Thabo accepted popular mobilization as needed, but he was focusing very much on negotiations. And Chris accepted that negotiations was needed, but he was focusing very much on the mass struggle. So the emphasis would be quite different. But it wasn’t as though they were two factions pulling in different directions, trying to win over popular, I mean majority support; it was two thrusts if you like of a similar, single strategy.
Lekwane: This is a list of organizations here… I wonder if you want to maybe, if it’s possible a moment if you…
Taylor: I mean if you have any comments on the impact or contribution feel…
Taylor: You mentioned a couple of these…
Sachs: Right… I’m looking through these different groups here. The Black Sash was quite warmly accepted, not as a major component of resistance, but also not as some kind of body trying to divert opposition, and to the extent that people like Molly Blackburn and others got involved it actually achieved a very high prestige. The… (end of tape) (CCR)…played a certain role that I’m aware of in the Western Cape, in bringing ANC people and people who ended up in the Freedom… Constant Viljoen’s party, they actually arranged meetings, and I had something to do with those meetings, they went off very well, in a funny way. I remember the one person that we met at some farm near Paarl and he was so enthusiastic about the ANC, and he was saying ‘You can hit the NP with democracy’, you know he really hated the National Party and he saw democracy as a good weapon to hit the NP. That’s the way he saw it. But again there was a very great, great kind of warmth there. But I’m not sure that these conflict resolution groups played a major role, in terms of the actual settlement. I think Idasa played a very very important role in terms of getting greater acceptance, I don’t think they played a strategic role in terms of the actual pioneering the main contacts and so on. I think that was done at other levels. But in terms of getting rank and file ANC people to feel comfortable with negotiations they played a very very positive role, but not the idea of negotiations, it was just more the actual comfort, you know that that was on track. And to the extent that van Zyl and Alex were breaking the isolation, they were very warmly accepted. I never encountered any problems or difficulties. The only concern that was expressed was if all your eggs go into that basket, you know, this is… water follows the path of least resistance. It was much easier to organize a conference like that, than it was to send underground operatives into the country, and so the tendency is to is to, you know, do the easier thing.
Sachs: And that concern was raised, but it was never to the extent of saying ‘We don’t want these contacts’. The End Conscription Campaign was certainly very highly, highly regarded as playing an important role and a very direct role, politically and in putting the whole total strategy on the defensive as it were.
Taylor: It had the support of the ANC? Did it have the support of the ANC?
Sachs: I’m sure it did, I’m sure it did - in principle, and I’m sure in other ways, in necessary and practical terms. IMSSA, the Independent Mediation Service, I only really got to know at the first ANC elections in 1991, where they played a very very useful role. It was the first time, there were 3,000 of us, it was the first time we were voting. I mean I’d refused to vote in South Africa, and the practice of democracy, and there were fierce arguments and debates and different positions and personality clashes inside the ANC. And one saw democracy was the answer, a fair way of resolving that. And to the extent that it solved internal ANC problems, it was the proof to everybody there, this is what the country needs. Idasa achieved growing prestige because of the meetings, which were very enjoyed. Apart from anything else, they were fun. I can remember Xolie Zwewe (?) saying that they’d met with the Catholic Bishops, and he said ‘You know we didn’t know what to do; how to dress, how to speak to them’. And Oliver Tambo said, you put on a suit, you’re not people from the bush, we are people who want to play a leading part in re-building the country. And he said ‘We didn’t know how to address the Archbishop’, and then Oliver Tambo, right at the beginning, said ‘Your Grace, we think it would be useful if you opened the meeting with a prayer’. And Xolie said, you know, it was just so perfect, it was so right, and it said everything that needed to be said. Koinonia I read about, but I didn’t hear too much. The Quaker Peace Center I personally have a great respect for Quakers, and they were quite, Quakers were quite helpful to me in England with a scholarship and so on. But, again that would be quiet - the left hand not knowing what the right hand is doing, so we didn’t hear too much about it. Institute of Race Relations I’ve commented on, the annual survey was an extremely precious document, and the work that they did, and their kind of impartiality and the feeling that they wouldn’t reject people as research workers there if they had ANC connections, or Communist Party connections, or trade union connections, or PAC connections, or Black Consciousness connections; that was seen as a very great strength. And to the extent that they towards the end began to be associated with a certain tendency and lost that eclectic quality, they lost their prestige.
Taylor: Mmm. They were involved in that debate about the third force as well, weren’t they?
Sachs: Yes, yes. Yes, well that, now I’m speaking about after we’ve returned and so on.
Taylor: Yes, this was the 1990s.
Sachs: But there’s been a collapse in the prestige of the institute.
Taylor: There has.
Sachs: It was really a very highly regarded body, and now it’s not even look to as a source, you know, as a reference anymore. The Bishops Conference, that gave I think a lot of satisfaction. In the earlier years the Catholic community, to use that term, was seen as actually very very conservative. I was friendly at the University of Cape Town with some young Catholics who were furious with the hierarchy, because it never took a stand on political questions and was simply trying to save souls. But by the 80s, I would say the Bishops Conference was seen as pre-eminent. And the Justice and Peace Commissions, I was familiar with through their work in Zimbabwe rather than in South Africa. CALS, the Center for Applied Legal Studies, its work was admired. I, of course, would have known about it, you know being a lawyer.
Taylor: What is your, what was your view of the role of challenging apartheid through the courts? I mean I read this thing here that John Dugard wrote on ‘The Quest for a Liberal Democracy in South Africa’; where here he writes ‘now the Left has undermined the value of civil rights as an instrument of change by claiming that national liberation will not to be brought about through the extension of civil rights’. And then he quotes a paper that you wrote in the Lesotho Law Journal as being an example of the Left’s critique of that position.
Taylor: You wouldn’t agree with…?
Taylor: Here’s the quote here, that Dugard has made.
Sachs: Yes, I see, where… well in fact, I’m not sure when he wrote this…
Taylor: It was - it’s got the date on it - it’s 88.
Sachs: Yes, well what the argument was then, was that… it was combating a position that came very much from the States - that you didn’t need a national liberation struggle in South Africa, because people could get the vote, they could get their civil rights simply through civil rights struggle, like in the States.
Taylor: Like the States. Mmm.
Sachs: And we resisted that very much, because it meant accepting the constitutional framework…
Sachs: …and struggling for rights within that. And that’s what we were against. But, in a paper that I did, a fuller one, I said that the struggle had found some kind of formula, it was more or less to the effect that, it’s about self-determination and it takes the form of national liberation and its objective is civil rights.
Taylor: Yes, here (reads from Sachs’s book), would this be it; ‘The process of destroying apartheid and reconstructing South Africa is properly in terms of a national liberation struggle in which democracy, reform and human rights result’ (Protecting Human Rights in a New South Africa, 1990).
Sachs: Absolutely. And I often said that you fight for human rights as part and parcel of national liberation, and the two can’t be separated. But to reduce the national liberation struggle simply to civil rights struggle - that’s what it was about. Now the article that was published in Lesotho was a very contracted, a selection of bits and pieces of the speech that I made. And so you mightn’t be incorrect in citing it there, but it was certainly never my position. And I always supported the work that John Dugard did, against many critics from the left.
Taylor: What impact do you think they had? I mean do you think they were, they pushed the government back, I mean they pushed the government back on a number of issues; the Group Areas, the pass law..?
Sachs: I don’t think that was the important thing.
Taylor: Creating political space through…
Sachs: It was keeping up the challenge, it was...
Taylor: …keeping a proper notion of the law alive..?
Sachs: It was more than just the law; it was resistance.
Sachs: And resistance not simply in terms of physical space, it was moral opposition and showing the injustice of apartheid; and these were the symptoms of an unjust society.
Taylor: Sorry, in your earlier work in Cape Town you operated with a similar view? No?
Sachs: You mean as an advocate?
Taylor: Yes. Using the courts to, as a kind of shield.
Sachs: Sure, I mean you were fighting, there was no problem there. You were fighting to save people’s lives to keep them out of jail, to expose torture to cross-examine. And from that point of view, if you had a decent judge on the bench you were delighted. It was different for black people going onto the bench, that would legitimize the institution, but for whites, we actually were happy when a progressive person, a decent person took an appointment, because it could save lives. And whatever little space there was in the court system we had to use it, and there wasn’t an acceptance of this idea that by fighting in courts you’re legitimizing the whole system. It was a very abstract kind of emotion and very unreal, and people engaged in real struggle I don’t think ever went to court.
Lekwane: Do you think funding played any role in the emergence of these kind of organizations?
Sachs: Funding played a very big. Funding was clearly extremely important in providing legal defense, and huge sums of money came into the country from Scandinavian countries, from North America, from the US, to provide the defence, and the importance of the defense wasn’t simply getting people off, it was training-up lawyers in alternative kind of practice, it was giving courage to people who’d came out of torture and solitary confinement, to feel they were respected as human beings, it was carrying the attack in court against the injustices. I think of the Delmas trial, although the accused were sent to jail they emerged thoroughly triumphant and though that hasn’t been forgotten. And there are many other examples of that. And that’s part of our tradition, a tradition I’m very proud to be in, a participant in, in South Africa, fighting in the courts for dignity for people’s rights, both as a defensive thing, for their dignity at the moment, and presaging the future. I am sure funding of all sorts of other organizations also played a very important role. There is a price for it; you become dependent on outside sources, and you don’t have to raise the funds internally, although often raising funds internally meant going to wealthy people and that could create an even worse dependence, but the basic grassroots fundraising, of people who’re committed, and every rand and cent that they give is part and parcel of their dedication to the struggle, that’s the most powerful form. And I can tell a little story there: in about 61, Govan Mbeki came secretly to Cape Town, and I met him somewhere. And I kind of found a way of telling him that, you know, he knew I was very very busy in court, but I never took a penny for any of the cases; that be at least half of my work. And I expected him to pat me on the back, and I would kind of shrug it off and say ‘Well compared to what the accused are suffering, it’s nothing’. And he gave me hell. I was taken aback.
Sachs: And he said, ‘Albie, you know, in Port Elizabeth the only way we can get to the people is to raise funds to pay the lawyers, and if you don’t take any money, we can’t even do that’. Laugh… But he was extraordinary, he was extraordinary in that respect. No, I think it was a very important life-line for all sorts of bodies that did quite significant work.
Lekwane: I know you have touched on this issue, but I mean in your view what would you say was the most effective way to fight apartheid?
Sachs: The most effective way, was to combine all the different ways; that was the art of the struggle. It wasn’t the one form as against the other, it was… and at times the one form would surge ahead, and others would drop behind. I mean I can remember how important the boycott of the tricameral elections was; but that affected certain sections of the community, but it did an enormous amount to delegitimize the regime and their proposals and their plans and so on. The armed struggle symbolically was extremely important. People who say it was a failure are measuring it simply in terms of the number of enemy killed and territory occupied, and from that point of view it wasn’t a success. But in terms of raising the spirit and setting a high water mark of commitment, it was extremely important. The trade union movement played a very very powerful role, as workers but also as part and parcel of opposition to apartheid. The moral sniping away by the churches and the newspapers and legal groups was very very valuable. The international boycott I think was extremely significant. And in the end I think the decisive piece was the sanctions in the United States Congress which made the then government of South Africa feel we’ve had it now; even our one true and trusted friend Ronald Reagan can’t prevent it. I think Pik Botha said the hole was too big. And that was when the writing was really on the wall, but it was a combination of all these different factors, and each interacted on the other. One can see the role that the sorts of bodies mentioned in this list here, of anti-apartheid network, played with foreign journalists coming to the country and meeting people like that and getting a counter to the official propaganda. Because a lot of these organizations were very, made up of pretty respectable white people, middle-class people, educated people, and if they were opposing the system, and doing so with strong compelling stories and so on, it would have quite an influence. Then the question is what happens afterwards. Well, I’ll leave that one open. But, I think to some extent it has been unfortunate that many of the people who were formerly in those areas are actively engaged in government now, they don’t see the visiting journalists and others are still sitting in their homes in the northern suburbs and elsewhere, and they’ve picked-up the panic and the fear, and the anxieties - which is a real part of our situation - but they give it a significance that’s not quite the same as the significance of exposing what the pass laws meant, and the tortures in detention and so on. But I think these are relatively ephemeral things.
Taylor: What do you think of the argument that these organizations played an important role by living the future in the heart of apartheid South Africa? In that, even if we take the legal (bodies)… they operated as if they were operating with an understanding of the law as it should be applied in a new South Africa? And the same with the medical, education bodies; they were operating with a non-racial democratic practice there and then, and in that sense perhaps made that reality that much more likely.
Sachs: I think that was extremely important, and it wasn’t simply the reality, it was the personal friendships, it was the learning to get on, it was people from privileged backgrounds meeting people from oppressed communities, and meeting privileged people from oppressed communities, and underprivileged people from oppressed communities. Getting to work with, I was very struck when I came back, one of the strengths of the transformation process in South Africa was the number of people produced in the struggles of the 70s and 80s; struggles at the universities, mass democratic movement, often white people, but also people of other minority groups, with technical skills, but who also knew how to work with community organizations, how to take decisions, how to consult, how to get consensus. And that’s rare in the world. There are many parts in the world where you will find people from privileged backgrounds have a lot of idealism and a willingness and an eagerness to serve the interest of the broad majority of people. But they don’t know how to do it. They don’t know how to work with people from working-class communities and from other communities, because they haven’t been compelled to do it - and so the ideas remain academic and isolated. To me this was a source of very great strength, and certainly the negotiations on many issues; questions of finance, of development, policies on a range of questions, it was very valuable having not only people from the oppressed communities who become now the technicians and the experts and so on - because of apartheid, relatively reduced in number. A certain number of people were trained abroad coming back, but also having individuals willing to join in, and not on the basis that they must be the leaders, that they must be in charge of everything, but simply contributing their knowledge and skills. So that’s in addition to living out as it were the new. I think the most important embryo of the new society was in the resistance and the underground, when people actually shared danger together. And, learnt a form of human solidarity - it was very very powerful. You know, destroyed the racial myths completely. That was the, and that was one reason I might say why those of us in the ANC had total conviction that non-racial society could be developed in South Africa; because we had lived it.
Taylor: Mmm. But would you except that on the margins of the underground there was an overlap with these organizations?
Sachs: Very much so, and more than the margins. I mean it extended to cover a wide area and it meant that the, instead of having a small elite of highly trained as it were professional revolutionaries suddenly emerging into a world of ongoing, world of legality and so on, there was a spectrum, a continuum really, that reached far out, far out - and was extremely important. Yeah.
Taylor: I don’t know if you have comments on any of the other organizations? We got as far as…
Sachs: Well I know that Center for Policy Studies, I only heard of when I came back. The Christian Institute of course because of Beyers Naudé. The Consultative Business Movement played a very useful role in the early phase of negotiations.
Sachs: And it helped to narrow the gap, you know this categorical thinking: business - bad, and workers - good. And I know Thabo Mbeki was very strong on that, the importance of detaching business from the defense of apartheid. And looking very much to the future, so much so that he got a reputation for being too pro-business. Now he’s getting a reputation for being too hostile to business, so… The Five Freedom Forum, again only after we got back, very active, in a quite an important period right at the beginning.
Taylor: Mainly directed to white attitudes?
Sachs: Yes, yes. The Human Rights Commission in terms of the exposé work, very very highly respected. LRC played such an important role, you know, over the years. The NECC also had very high reputation, as did Namda. My brother was, is a doctor and he was involved in the ANC Health Committee. And then Nusas got an increasingly favorable estimation as it got more and more involved in public activity instead of being seen…
Taylor: It affiliated with the UDF.
Sachs: Yes, yes, and then it kind of faded afterwards. Oasssa, social services. I think I spoke at a conference of social workers late 1990 in Johannesburg, and I was kind of amazed because when I left South Africa in 66 I think there were four progressive social workers, I knew them all!
Sachs: And now they could fill a hall, and still, you know, people couldn’t come. But I hadn’t heard of them until then. Sached was quite, quite well known, it had a reputation for being a little bit respectable, you know, operating in terms of bursaries rather than in terms of struggle, but respected for that. Council of Churches was highly respected and the TRAC, the rural action committee was very highly respected for the work that they did.
Taylor: And do you, would you go along with the argument that it constitutes a network?
Sachs: Oh, I would assume it was a network; that there was a lot of overlap, that the ANC felt warm towards all of them, very warm towards some, and you know quite warm towards others, that they were helping prepare the way for change in South Africa, that they represented an alternative to the other official type institutions.
Taylor: And what do you think would have happened if these organizations hadn’t been around? Would we be where we are today?
Sachs: Well, if I look specifically at the Constitutional Court, I think the Legal Resources Center, the Center for Applied Legal Studies played a very significant role in preparing the country, in preparing judges, the legal profession, for the changes that were necessary, and helping actual individuals to prepare themselves - I don’t want to identify any of my colleagues - in terms of the general mass movement, also to the extent that the LRC had fought so clearly for fundamental rights and that there were well known advocates like Arthur Chaskalson and George Bizos, and Judges like John Didcott, meant that you weren’t dealing with the impossibles afterwards. They were immensely popular amongst the masses. Just the other day I heard Blade Nzimande saying that they only day in court he enjoyed was hearing John Didcott tearing the Emergency Regulations to pieces, and he was like licking his lips, and Blade ideologically, you know, is not a supporter of bourgeois justice, but there he saw a principled person, a strong legal technician, taking on an abomination of power. And that prestige to the idea of good judges, in other words as an institution the judiciary wasn’t inevitably bad. So the work bodies like that did was very important. I think it’s unfortunate that Namda didn’t survive actively longer to play a bigger role in helping to support the transformations that were necessary, that had become very much government driven, and it might have made the task of government much easier if there had been a powerful organized movement amongst health professionals, demanding and pushing for change, and it would be seen as less coming from the ministerial level, and more the minister responding to sort of internal clamor. I’ve, in terms of the churches, in my writings in the early 90s supported the right and the duty of the churches to bear witness, and I think it’s very healthy for democracy. And it was a kind of a moral-political role if you like, it was played in the past, to a certain extent, and needs to be played in a continuing way, and it establishes a good dialogue with government and legal agencies and so on.
Taylor: Would you accept the argument that the role of these organizations has not been adequately recognized to date? or not?
Sachs: I don’t know, by whom..?
Taylor: In general accounts of the transition, I mean certainly at the media level it’s seen as a kind of, it’s seen as a miracle, or de Klerk/Mandela elite driven…
Sachs: Yes. Oh, well I mean the accounts are ludicrous from that point of view. And it’s interesting to get a blow-by-blow account of the personalities involved and the chemistry, and that chemistry, but that functions within a context. And… I haven’t read all the accounts - I was too busy participating in the process…
Sachs: …to read about what others were saying about it. And then in a funny way too bored by it afterwards. You know, wanting to leave it for a white: enough. Getting on with new tasks. I don’t think that they… you know if one wants to say that conflict resolution bodies had a vital role to play, I’m sorry to say I don’t agree with that. I think they have a useful contributory role to play, I think the critical thing, the real problems were not technical. And I’ve spoken at length about how I saw the negotiations, and what the crucial moments were and so on, and I didn’t spontaneously include any of these bodies. But in term of establishing a climate and establishing confidence and building-up a network of supporters for democracy and transformation and change, they were invaluable.
Taylor: You began the interview today very much by emphasizing how non-racialism was a very important step for you to arrive at, but also in terms of forming your understanding of South Africa. One could perhaps argue that for many white South Africans these organizations played a role in facilitating and encouraging that, and only if you understand the presence and the meaning of non-racialism that you can begin to counter this kind of miraculous view of the transition. Because, after all, if you view it as a miracle, you are trapped in a racial mentality; because if you’re saying it’s a miracle how is it that black/white… you’re trapped in that racial... The point that has to be made is to embrace a non-racial understanding, one could argue that yes in terms of creating that climate instilling a non-racial outlook was crucial, and that maybe - well I don’t know the extent to which you would want to give credit to these organizations as being part of that, but it struck me in working on this study that it has been an important factor. That these organizations provided space on the ground for building non-racialism, particularly in the 1980s, and that without that the conflict may have taken a more racial dimension internally.
Sachs: I think that’s possible. I think that it, it detached groups that might have been allies of apartheid from the late South African government. I don’t think any of these groups had much direct impact on the South African government, and the security forces. But it isolated, it helped to isolate them, and isolated them morally, made them feel cold and alone, and to the extent that there were the international pressures, they couldn’t get any significant local black partners, it made them irritable that they would have to sue for peace as it were. And then they tried to manage the process of change, and succeeded to a certain extent; it wasn’t a debacle or a calamity. And from what I’ve read of the, some of the books that have been written, I think it’s true that the ANC negotiating team was far more powerful, intellectually far more experienced, far more flexible and far more consultative in its character involving the organization to a greater degree. But I think it’s wrong to say that it was simply a case of the NP negotiators throwing in the towel and collapsing. They got a lot, and the ones who got the most were in fact the people like Davie de Villiers and Roelf Meyer and Leon Wessels. They actually got the most. And the ones who were the hard-liners amongst the Nats and would often come with very extreme demands and all the rest ended up with nothing. They lost completely, and they had all sorts of funny strange proposals - and they got nothing out of it. Whereas the people who have now been stigmatized as the surrenderors where the ones who actually gained a lot, the Government of National Unity. A lot of the things they gained were consistent with ANC policy anyhow, and the Bill of Rights and so on… cultural and religious rights, but there were other features where they actually got a lot, because they negotiated in a very skillful way. And one felt if, you know if you wanted to move forward then one had to concede anything that was reasonable from the other side, but if the demand was from the more extreme people on the other side, and it wasn’t reasonable, then we just dug in our heels. But now I don’t think that people like that were influenced by the NGOs.
Sachs: How would I characterize their role? They weren’t principle players as it were, they didn’t have a decisive role, but they had an extremely significant role. In terms of the actual mechanics of the transformation, the role of Idasa was particularly important. In terms of working out policies that would hold in the new South Africa, the legal bodies played a very important role, Namda played an important role, that I know of. In terms of establishing the networks of people who promoted change, but change within the context of democracy, not simply change for the sake of rationalizing apartheid, they were an important intermediate sector; influential in white society, influential with the press and professional organizations, influential with the foreign media, and their role was perhaps disproportionately important in those sectors. They helped to give democracy a soft landing. I wouldn’t say that they paved the way directly for democracy, or were spearheads of democracy, but they enabled democracy to come in, as I say with a soft landing, rather than in a very confrontational, abrupt sort of way. They created a core of scores and scores and scores of people willing to work with the new government, using their skills, to promote democracy enthusiastically, they established links between the new institutions and community organizations, that turned out to be very valuable, they established styles of work, modes of consultation, forms of decision-making, that also turned out to be very valuable. I would see the contribution in those sorts of areas, but not in saying that they brought about the peace or the negotiations.
Taylor: Great. Thank you.
Lekwane: Thank you so much for your time.