Raymond Tucker: Attorney interview with Rupert Taylor 26 January 2000, 32 St John Road, Houghton, Johannesburg

Raymond Tucker
Attorney
interview with Rupert Taylor
26 January 2000, 32 St John Road, Houghton, Johannesburg, 4.30-6.00pm

Taylor: Maybe I should begin by telling you a bit more about the project.

Tucker: Please.

Taylor: I’ve been doing it now for, I’ve been doing this project for two-and-a-half years and its involved a number of people at Wits and it’s also an international project, that’s been working in Israel, Palestine and Northern Ireland. But for my sabbatical which begins next month, I’m going to be sitting down to write-up part of the project - particularly the South African element. And what we’ve been looking at and what I’ve been focussing on in a lot of the interviews that I’ve done is the role of a range of anti-apartheid organizations, that is a very wide range of NGO’s like Idasa, Institute of Race Relations, it includes the LRC, Legal Resources Centre, it includes the Black Sash, it includes Nusas, it includes Imssa, and it looks at, the idea is to look at the contribution and the impact of these organizations - particularly in the 1980s - to see how they worked for change and indeed how they helped to bring about the transition.

Tucker: And is a similar programme being investigated elsewhere as to how NGO’s facilitate that process?

Taylor: Yeah, yeah. And what is interesting is that South Africa is way ahead of Northern Ireland, Israel, Palestine. Which in one sense maybe one could argue helps explain why South Africa is further along the road to peace than the other societies. But that’s one interesting dimension: that within South Africa there was a much more dynamic and active NGO sector operating in the 1980s to try and bring about change, as opposed to, well within the North of Ireland there are very few NGO’s that really had much impact in advancing reconciliation and peace.

Tucker: But the irony of course is that in South Africa, after the change of regime, so much was done to destroy those organizations.

Taylor: Yeah, but on the other hand...

Tucker: Deliberately - I mean…

Taylor: Yeah.

Tucker: …as seen from not only by inaction, but by deliberately diverting funding to them, from them I should say.   

Taylor: Mmm, it’s also interesting though to see how the leading figures in a lot of these organizations are now in government.

Tucker: Yes.

Taylor: And how they’re in, responsible for policy and there’s that interesting dynamic as well. I don’t know, I mean, some people have talked about how these NGO’s interacted to form a kind of almost like a government-in-waiting; that when you had the transition a lot of leadership figures moved out into politics or into public administration or into policy work that was directly related to…

Tucker: Well of course quite an important reason for that, is that the ANC didn’t have trained people to move into many of those positions, and many of the people who ran NGO’s were highly-skilled and honorable.

Taylor: Yes. And what has happened is that it’s led to a leadership-gap in a lot of these organizations. I mean…

Tucker: But it has also led to quite a number of those people, who moved into government now having been supplanted.

Taylor: Yeah, yeah.

Tucker: So there’s an additional dynamic, attachment to it.

Taylor: Yeah. I mean this is interesting that, you know, like the project initially was focussing on the 1980s but the more one looks at it the more interesting it is to look at what has happened in the transition years 1990 to 94 and after 1994… there’s very interesting dynamics in terms of leadership, in terms of funding. So those are the kind of issues that the project has looked at. Um, I don’t know, I’ve got a list here of people we’ve interviewed - I’ve done maybe over half of them - we’ve done about a 103, 104 people now.

Tucker: Good heavens, I’m flattered to be on the list.

Taylor: Laughs. Well, in a way one could go on forever interviewing people, but I’ve now got to the stage where I think right I’m going to do about maybe 10-15 more, and then sit down and write it up, because really there’s a sense in which one would end up with so much material to put together.

Tucker: Sure, of course there’s so much duplicated material as well; I mean you can’t have a 104 different opinions.

Taylor: True (laugh). It’s been very interesting because interviews I think have been very, very very helpful because - I mean one of the aims of the project in terms of the South African study is to take issue with a lot of the mainstream books that we have, like Patti Waldmeir’s book, Anatomy of a Miracle, or Allister Sparks’s book, Tomorrow is Another Country. I mean those books in attempting to explain the transition they focus on political elites, they look on Mandela and de Klerk, and they look at the international factors; but they don’t look at what was really happening within these organizations, within civil society I suppose. And so what I’m trying to do is present a deeper story, and one of the issues that I endeavour to look at in the study and in the interviews is how these organizations helped to build non-racialism. Because without that I don’t think one would have, we wouldn’t be where we are now, the National Party would not have been willing to negotiate - I don’t think - if there hadn’t been a transition away from a black/white to a non-racial vision. And one of the things that has come out very well in a lot of the interviewing, in a lot of the research that I’ve done, is how these organizations helped advance non-racialism. And also how they all interacted with each other to help build a non-racial democratic South Africa. I mean part of the argument, which I would be interested to hear your views on, is that a lot of these organizations not only looked to a non-racial democratic South Africa, but in their day-to-day practice behaved and acted as if they were living - to the extent that they could - in a non-racial society.

Tucker: Well I’ve been involved in at least a couple of those organizations.

Taylor: Mmm. And most of the interviews that I’ve done are also structured very much in terms of, although there are some common issues I much prefer people to tell me how, where they’ve been involved and where they think the organizations that they’ve been associated with have made an impact or, or otherwise. And, I mean that’s the kind of way that I would like to - you mentioned that you’ve been involved with two, I mean I know you’ve been involved with LRC…

Tucker: Well several, but…

Taylor: Two primarily?

Tucker: …but two primarily that I can think of. I’d say the prime one is the Market Theatre…

Taylor: Ohh.

Tucker: Because the Market Theatre, where which I was involved with before it even started I formed the Market Theatre Foundation and from the outset it determined that it was going to be on a non-racial basis: it would not apply for permits; it, people would be admitted, we would not keep statistics of races; none of our positions would be on a race basis; and, that if we were to be prosecuted we would be prosecuted. We did have investigations from the Group Areas police, and we were just about to be prosecuted with, and there was a sudden change in the law which dealt with occupation, I think to create a sort of business area, and we fell within that; we did get opinions on the question of whether we did or didn’t fall under the Group Areas Act and the opinion we got ultimately was that only Indians could come to the Market Theatre, because it was formally occupied by, in the Indian Fruit and Vegetable Market.

Taylor: Oh yeah, mmm.

Tucker: This is what, and we had some crisis decisions in the, at the Board of Trustees and then - they’re referred to, my wife wrote a book on the story of the Market Theatre, it’s called The Vested Company - and she deals quite extensively with that period.

Taylor: What period would this..?

Tucker: It started in 1976, we opened when Soweto was burning, and the irony was that our first play was ‘The Marestade’, which dealt with the revolution in France, it was a magnificent production, and so that is, tells you quite a lot about that, and it’s a consistent decision that we have taken. The Board of Trustees has been overwhelmingly white, but frankly we’ve had a great deal of difficulty in persuading black members to come on the Board; we have a couple, Motlana is one of them, and there have been from time to time, but ultimately we had to reduce size and to people who would contribute something, and a couple who were there faded away and died and so on. But no, the Market was a crucial one. And there was always a very interesting question of why we weren’t prosecuted.

Taylor: Mmm.

Tucker: Because we were, I think, unquestionably in contravention of the Act, and we decided that, our integrity, the… let me go a little bit further back, Barney Simon and Manny Maniom started the company, they were quite determined that they were going to have a non-racial theatre, in fact their pre-Market theatrical activities almost entirely involved non-racial theatre, so there was never any question from the point of view of the founders that that would be the case. And in fact when we established our memorandum and articles of the Foundation, the company, it specifically provided that no activity which involved any form of racial classification - something to that effect - would ever be permitted, and when we entered into leases with people, for example for the restaurant we made it a condition that they were not to accept any conditions relating to racial segregation and that if they were then the lease would come to an end. And we were very adamant about that until quite a long time for many years the founder trustees - there were seven of us - refused to give-up our position, our veto rights, as founder trustees until we were completely satisfied that the additional trustees, and we had to bring in, were completely committed to the non-racial concept.

Taylor: Mmm.

Tucker: And then this was the place where the most amazing controversial theatre was put on.

Taylor: Mmm.

Tucker: The Island, one after the other.

Taylor: Yeah.

Tucker: And the police would come and the security police would be there and the Censor Board would be there and the rest of it, and we just went on. So that was a serious body that I was involved with. Another one that I can think of is Wilgeispruit Fellowship Centre.

Taylor: Oh yeah.

Tucker: Have you spoken to Dale White or anybody from Wilgeispruit?

Taylor: Um, not directly, I want to talk to…

Tucker: Priest?

Taylor: The name escapes me, but I am planning to.

Tucker: Well I think it’s important to do so, because they represented again a threat to the area, they were threatened with prosecution, and they used all sorts of devices for example, that they had more buildings on it than were permitted in a farm and they were going to be declared an illegal township - with all sorts of consequences. Now they were unquestionably totally non-racial, so they were a haven, they were an island in the midst of a very racist area, and they were again a thorn in the side, and I think at times an embarrassment to the Anglican Church, Council of Churches as well. Now that’s another body. I’ve been involved with the Institute of Race Relations, which again, I’ve been their honorary legal advisor for about twenty years now; everything seems to go back about twenty years. Now they in turn always adopted a totally non-racial policy, the question of race didn’t come into it, there was a lot of opposition to them because of the fact that they engaged in research which was unpopular, because it looked at another point of view like what is the effect of violence on the families of policeman.

Taylor: Mmm.

Tucker: And they weren’t just lackeys of the ANC. They also moved in their direction from sort of membership-based organization to a top-heavy…

Taylor: Corporate?

Tucker: …corporate type thing. With their focus on research for the corporate sector. During this process they gave-up all their welfare work, which is probably right because it was always an unclear relationship, it started-off the Legal Aid Bureau, the original Legal Aid Bureau, then there were employment agencies, then there was the open school, there were a whole, Operation Hunger; and the only one they retained was the bursary fund which they handle extremely well, and which is quite an important source of revenue for them as well, and it’s also part of their image building. Um, then, well you’ve obviously spoken mentally to Imssa, which I was also involved in, the Trust Deed. Um, and the LRC. I was also involved with CALS.

Taylor: Mmm.

Tucker: Now CALS, CALS and LRC were materially different in some respects. CALS in a way adopted an American philosophy, I’m not sure who the, the group or the lawyer was, but it was the philosophy of the losing case: you’ll take on cases you’ll probably get to loose but in the process you gain, you make movement. Arthur Chaskalson was a senior counsel of great eminence, counsel don’t appear at losing cases, so they were much more conservative in a way, in the sort of cases that they would take - because they were going to be much more sure of winning it. 

Taylor: Mmm.

Tucker: And certainly in the earlier stage. Now I’ll give you an example of the philosophy of the losing case. I acted for the white political prisoners in Pretoria Prison, and during the period in which they were all denied access to news, news reports, you know of that, that era?

Taylor: Mmm, mmm (yes).

Tucker: And I acted for them in bringing an application to set aside the restrictions composed by the Commissioner for Prisoners, and one of the little side-lines was they weren’t allowed to give me any notes, but I took in a tape-recorder - there was no restriction on that. The warder didn’t know what he was doing, well they soon imposed a restriction on that. Um, but what was significant is, we knew we would loose, we thought it was important to do so. We lost, I think we partially lost because of the intellectual limitations of Sydney Kentridge, our senior counsel, who couldn’t understand the concept that people, the most highly educated group of prisoners in this country, were living in a time warp and at this vacuum, and that this constituted mental cruelty of a kind - now he couldn’t understand that. And he argued it essentially on the interpretation of the regulations; and I said to him ‘You know that’s no good because even if you win, they’ll change the regulations’, but he wouldn’t, couldn’t argue it. We threw it in, but he wouldn’t pursue it. When we got to the Appellate Division, counsel for the police said ‘If Mr. Kentridge had argued that this was mental cruelty, I would have had a great deal of difficulty countering it’.

Taylor: Wow.

Tucker: And then Corbett gave a minority judgement in which he upheld our case on the basis of mental cruelty. But, why call it the philosophy of the losing case, is that the day after we lost in the Appellate Division they put into place - obviously they’d worked on a whole system whereby people could now get news, news broadcasts, radios, they could talk about politics and things at interviews with families, and that’s the sort of case which Arthur wouldn’t take on, when we, I took it on myself as the lawyer, but CALS would have; because I’d consulted Arthur on the question of whether or not he thought we had a case, and he also only thought in terms of the regulations. He didn’t see how exposing this could ever benefit. And the judges - even those which were totally hostile to us - said we actually don’t understand this restriction, why there should be a restriction on something from Farmers Weekly and Ian Smith and his wife walking around their garden because they’re political figures, and that was the most bizarre thing.

Taylor: Yeah.

Tucker: So, as I say, CALS again something I was involved with in it’s initiations, at the beginning, and they were both entering into areas where there had never ever been opposition. I myself when LRC started never realized the enormous scope of what they would be able to do, on a principle basis - and I don’t mean individual hardship like recovering pension monies and stuff like that, and in, due to of course what they did achieve was an unbelievable degree of respect from the Establishment; from the Law Society, from the Bar Council, there was quite a lot of hostility towards them by a number of eminent law firms, including liberal law firms, because… particularly liberal law firms because they said ‘You’re taking this work away from us’.

Taylor: Oh, yeah.

Tucker: I think it’s a direct result of that concern that the LRC could never get orders for costs, they never asked for orders for costs - which would have made a lot of difference to their finances, and would also have made a, would have made the opposition a little bit more cautious in opposing - if they knew that they had to pay costs as well.

Taylor: Would it be true to say that the LRC strategy then was - whereas CALS had the strategy of a kind of the losing case you were talking about - the LRC would look for the kind of watertight case; I remember talking to Charles Nupen and he told me the background to the Rikhoto case, where he had to get his documentation perfect, they had to find the right, the right documentation, the right person, to bring this to court, and they were out to win it. I mean…

Tucker: Well that’s exactly what it is; they were determined, they anticipate every possible argument and they didn’t take anything to chance. Now, I am not suggesting that it anything to chance taken by CALS, but for example when they had that appalling case when the community was in the process of being evicted up in the Northern Transvaal.

Taylor: Oh yeah, Magopa.

Tucker: Magopa. Now there he was going to fight this case whether he won it or lost - I mean he obviously would have wanted to win it - but he wasn’t going to say ‘It’s a loser’.

Taylor: I mean that’s interesting, I mean that raises the other issue. One of the things that George Bizos emphasized was how a court case would generate its own publicity, it would provide space in and of itself, regardless of whether you won or lost it. Like the Delmas trial was maybe a good example of that. That it constantly brought to public national and international opinion an alternative story of what was happening in this country.

Tucker: In many ways this was the only way that many of these things could appear in the press, apart from anything else it’s the only place where a number of banned people could be quoted.

Taylor: Mmm, yeah.

Tucker: So, I’m not saying that that was CALS attitude, that they were going to be an expectation of losing… but what I’m saying is that CALS was perhaps in some ways more robust than LRC.

Taylor: Mmm. Do you think yourself that there was a lot of space for using the law to challenge and change apartheid?

Tucker: Not essentially to challenge apartheid, but - as a broad concept - but that the law could be used and was used, the Rikhoto case is a perfect example, the case involving Group Areas - Richard Goldstone’s judgement on the alternative accommodation has got to be found, um, yes in many instances it was a question of getting the officials to do their job, in the early days of Black Sash, when people lost their reference books they had to go back, they were made to go back to their rural areas to get duplicates, and I brought an application for the Black Sash - incidentally I was also working on a Rikhoto type matter when LRC did one, um, but I wouldn’t have done it with that efficiency I can honestly say now - but I brought an application to compel the local commissioner to grant, to issue a duplicate reference book. Now, some might say you’re reinforcing the system - but I want to tell you if you’re a person here, a black person, without a reference book… And it took some months and then the State Attorney phoned me one day and said ‘We’ve decided to withdraw our opposition, this will effect 100,000 people a year in Johannesburg alone, who will now be able to get their reference books here and won’t have to start all over in the rural areas’. Now, you know, that little thing. The, quite a number of court cases brought for the Black Sash on individuals; the rights to be in Johannesburg under Section Ten. Individuals who were being denied their rights, wasn’t changing apartheid but implicit in all those Group Areas and in the hostels, that certain people had rights and those people had to have those rights accorded to them and accorded… and that I saw as also part of the system. The, the core of apartheid itself in the sense of denying people the vote I don’t believe was ever challengable as a legal issue, but um, well I mean there are quite a lot of examples all over; the work that Black Sash - let’s take the LRC again and the question of land expropriation, I did a lot of land expropriation cases in Alexandra township and simply because we were forced to the authorities to apply, to apply proper methods of compensation, the monies recovered were very considerably greater than what people were paid, I couldn’t stop the expropriations, um… I think each of the instances that one is talking about were all part of a process, maybe it’s too grand to put them all together and say all of us contributed in that way. But each of which tended to have the result that the State was not inviolable and inviolate, it always thought that it could do what it liked, there were no constraints, I think what the Black Sash, what LRC, what all of them did, were indications that the State wasn’t all powerful.

Taylor: And in your view, in the cases that you, that you’ve been involved in, would you say that in general the judges have uphold a position of impartiality and objectivity, neutrality? Or..?

Tucker: They vary. Um, I know of situations where the judges could have, without any difficulty, have come to another conclusion; favoring the individual as against the State. I’ll give you an example of one case, Robert Sobukwe and a woman Shanti Naidoo were both limited, restricted, Robert Sobukwe was limited to the magisterial district of Kimberly which incorporated the airport, Shanti was limited to the municipal area of Johannesburg which obviously didn’t include Kempton Park, neither could leave without the consent of the Minister of Justice, both had obtained exit permits because the law was that if you could satisfy the Secretary for the Interior that you intended to leave the country permanently then he was obliged to give you an exit permit. Sobukwe had an offer from a lecturer in the United States and Shanti could get into England. So they both had exit permits, but the Minister of Justice refused. And we brought an application and we lost. We went on appeal to the Appellate Division and we lost. Now, either court could have found for us on the basis that the law relating to - oh, just by deciding which was the over-riding law, and they could just as easily have found for them as individuals.

Taylor: Mmm, interesting.

Tucker: But didn’t. Um, I found two cases in the Appellate Division that I think of; one concerned banned people - of whether a banned person could mix with one other person, Sheila Weinberg’s case, and the Appellate Division found that the wording of the - it got round the problem, by deciding that the wording of the order, namely ‘You cannot mix with more than one person’, enabled the person to at least mix with one other person, but the courts wouldn’t challenge, wouldn’t set aside the banning order generally on the grounds of vagueness as to what is a social gathering. There was another case there, almost at the same time, Arthur actually did it, involving the Publications Act and the presumption of guilt, when a banned publication, when a publication was declared undesirable - sorry, again an easy case. Um, the AD (Appellate Division), now there was a case where the AD could find without really impinging on or reflecting too much on the government. The prisons case was an absolute case of bias, I mean Clerlewis’s attitude of the lower court was the prison is not a five-star hotel, with such contempt. Um, the… I acted in the case of the Anglican Dean of Johannesburg, Gonville ffrench-Breteygh…

Taylor: Oh right, yes.

Tucker: Now Piet Cillier was just, just a hopeless, I mean his bias, his arrogance, his contempt was overwhelming. When we got to the Appellate Division we had a very different hearing. Now it may well be, and I don’t deny this possibility, that they were aware here was a priest of the Anglican Church, the Dean of Johannesburg, but when you read their judgement none of that really comes out, but I’ll tell you let’s take Renfrew Christie’s case, do you know Renfrew?

Taylor: I don’t know him, but I know of the case.

Tucker: Now Renfrew’s case was, um, a classic case where the bias of the judge came through absolutely. And his judgement was bad. And the Appellate Division put an interpretation on his judgement which would uphold it - when it shouldn’t have been upheld, on a pure principle of law. I am not saying he wasn’t guilty, that’s another matter.

Taylor: Yeah.

Tucker: But on the basis of what he found it was indefensible. Um, my limited experience in relation to the emergency-type regulations, I only really acted in one, it was to determine in relation to a funeral - it said you can’t have more than 200 people, but that was too vague and how do you determine that: do you count them, then say anymore can’t come? The papers were prepared too rapidly I think; we didn’t make the most of it ourselves. I think there were judges that did try, there were some judges who were there was just no chance whatsoever, Steyn in the Free State for example. Richard (Goldstone) was a bit disappointing at times, as well; I mean there’s no doubt about where his liberal sentiments lie.

Taylor: Mmm.

Tucker: But I think that in a couple of the emergency regulations cases, I think that he, it wasn’t necessary for him to go along with the majority.

Taylor: Were there cases where maybe the judgements surprised you for being a liberal or a judgement that you would not have expected knowing the political background of the judge?

Tucker: There was a case involving Wits students who were demonstrating, this was a case when Craig Williamson assisted as one of the…

Taylor: This was the Glenn Moss trial or..?

Tucker: Yeah, yeah. Now there the judge, the magistrate was totally against us, I mean this combination of that particular judge and the particular prosecutor was notorious. And the last possible moment counsel held hands and stood-up, just when he was about to give his judgement, and said I want to hand in this judgement, it’s come to us from the Cape Provincial Division that says there has to be three warnings and there wasn’t three warnings in this case, and the magistrate was furious, he was embarrassed in court and he had to adjourned, and then he had to acquit the people. But that was a situation where… No, that wasn’t Glenn Moss’s case, Glenn Moss - that was the Nusas trial with Charles Nupen and the others.

Taylor: Yes.

Tucker: Um, you know in a way we had one of the better regional court magistrates in that main court, and he did find for us on a very very narrow basis because I think that - again during the course of the trial some of his conduct was atrocious, like… it was something involved Mandela; our going down to see Mandela, because Mandela wouldn’t get permission to come up here, in fact he wouldn’t come up, and when George then said ‘Well we’re not going on with the trial’, and then he started phoning and using his influence and in the end he found for us on a narrow basis; namely, that this is what the indictment said and technically this was not proven. He never found us not guilty, it was the American ‘not proven’ almost. That was the one situation… I can’t…

Taylor: In terms of the cases that you’ve been involved in, which one or which ones would you highlight as being maybe the most significant?

Tucker: The Tokyo Sexwale’s case…

Taylor: Oh, the Pretoria 12.

Tucker: The Pretoria 12. In the second trial, what we were truly surprised at, was that the particular judge on that occasion found a number of people not guilty; and the first judge was clearly going to find them guilty, no question of that, and he accepted our arguments which again the first judge would never, he also was much more lenient in his sentences than the first judge would have been. I remember Tokyo Sexwale turning around towards me in court and when he got 18 years, and he removed the noose from his head (Tucker mimics the action), and then smiled. We were thinking that if they didn’t get Death, they could get 25 years. And that was a true surprise because the judge, was it traditional Afrikaan… I think it was Human if I’m not mistaken. The other one where I was surprised, the President had made an offer - former President - to political prisoners who would renounce violence, they would be released, and Renfrew Christie did so, and they didn’t release him and we brought an application, and in the course of the argument the judge turned round to counsel for the State and said ‘But he’s served ten years or something, why shouldn’t he get out now?’ And really took the line, and indeed we then settled the matter and they did release him. But we used exactly the same arguments for… I think, he was the Commodore of the Navy in Simonstown and his wife was involved with espionage, I can’t think for the moment. It came before Richard (Goldstone), and Richard just threw it out on the most simplistic of grounds absolutely; it was really a very disappointing decision on his part.

Taylor: Mmm.

Tucker: You know it was a clear undertaking that if people renounce violence that they would then be released. So, okay.

Taylor: The most important cases that you, in your opinion, or significant in terms of - that you’ve been involved in - in terms of their political importance… I guess the Pretoria 12 was a big case.

Tucker: The Pretoria 12 was an important case; the Anglican Dean.

Taylor: Mmm.

Tucker: Although they may have you know just faded into history, at the time they had an impact on peoples lives; there was Sheila Weinberg’s case dealing with banned people mixing with others; there was - it doesn’t come into yours - but it was my first really significant case, we went to the Privy Council, it was a matter of Joe Molefe in Lesotho, and in those days Lesotho’s claimed the right of appeal to the Privy Council, and they wanted to expel him from Lesotho and we tried to rely on the International Convention of Refugees which Britain had adopted before Lesotho became independent, and we went to London, the House of Lords held that he, Lesotho had succeeded to the Convention on Refugees but he didn’t fall in its definition as it then stood before the protocol was signed some years later. But it did effect potentially refugees from South Africa and they have had quite an impact, on them returning to South Africa and being forced out. Um, I think the Nusas Five was very important because what had happened was, the Dean’s case was really a trial of ideas, it was an attack on the Church, he was small fry in the whole thing.

Taylor: Mmm.

Tucker: The Nusas trial was a trial on, of academia, on lecturers, students, of the student opposition and it certainly I am sure it had a great effect on many students as well. Those were two very significant cases. Um…

Taylor: And the Nusas trial set a pattern in terms of the State trying to link everything to an ANC conspiracy in the realm of ideas and…

Tucker: Well that’s what they tried to do. I’m not sure that they made much progress with that after that, I can’t think of the… I’m not thinking for example of the Saso people - that was different.

Taylor: Mmm.

Tucker: I wasn’t involved there. I think that… I just want to have a look at something (requests tape be turned off whilst searches files for list of cases he has been involved in)… 

Taylor: Which case?

Tucker: That’s the Goldberg vs. Administration of Prisons.

Taylor: Oh yeah.

Tucker: That really was… it effected, you know there’s all the talk that the people down on the Island were achieved, in the sense of white political prisoners.

Taylor: Mmm.

Tucker: …the Government of Lesotho, there’s ffrench-Bretygh’s case, there’s Sebokwe vs. Minister of Justice, there’s Goldberg and the others vs. Minister of Prisons, there’s Weinberg’s case, oh the other one was Moronae involving the publication, the production of what subsequently became an undesirable publication. Then I was involved in a matter, quite an important matter, of - with the LRC jointly - this is Tohoe vs. Digmela City Council which dealt with the housing regulations, and although the housing regulations were abolished the council was still applying them and if people got divorced the houses became forfeited to the council and we challenged this, and Mabernevse argued it, and we were successful and that affected vast numbers of people. And then there was a case of Moghali, he was severely tortured by the police, and the matter went to the Appellate Division and we had the most evil of judges below, I mean really one of the worst, and we came before the Appellate Division and the Appellate Division found that as a matter of fact that he had been tortured, his tooth pulled out, things like that, hideous; that’s a reported judgement, and after the report it was analyzed in a 1982 SALJ (South African Legal Journal). And then I was involved in a case which also more of interest to the individuals; we reviewed an expulsion order from the Garankura Department of Education because two people were making statements supporting the ANC and they were just summarily dismissed, and we had the expulsion orders set aside. Um, those were the most, I think, the most significant (looking over list)… yeah.

Taylor: Did you have a set of principles - I’m wondering how selected cases in terms of which you got involved, were, I mean were there cases that you, important cases that you declined, or were there - did you have, I mean how did you come to do the cases that you did in terms of, did you say that this was an important case that I should take or, I’m just wondering how, how attorneys, lawyers…

Tucker: Oh no, I had no principles (laugh).

Taylor: Really (laughs).

Tucker: Um, George Bizos always saying yes he’s got no principles, he only does it for the money. Which I would have said that for these cases (laughs).

Taylor: I wouldn’t believe that for one minute (laughs).

Tucker: No. It was basically, what matters either came directly to me because I was one of the very few attorneys who would do, who would do that sort of work…

Taylor: Mmm.

Tucker: …or I was asked to do it. For example, I might have a Church case, the Church might have brought it to me, or Black Sash might have, or somebody I knew who was active in some way or another. No, I never - sometimes it was counsel; um, I acted for Winnie Mandela in her, in an appeal of hers, I was asked by George (Bizos) if I would act because Joel Carlson had skipped the country and hadn’t left anybody to handle her case. So that’s the sort of thing which sometimes happened.

Taylor: But how would you explain your willingness to get involved in these cases when many other people would have shied away from them. I mean…

Tucker: That’s… that’s not quite easy to answer in a simple way.

Taylor: Mmm.

Tucker: I really started getting involved in, in human rights type matters when I joined the Liberal Party in 1973 when I first started to do my LL.B. and one of the things we used to do in the Liberal Party was we had our own little internal advice centre for people, for members who were concerned with Pass Laws and passes, permits and so on. And I started doing their work, it was all on a pro amica basis. I would go down and try and sort it out. Later on, when Ruth Hayman left and she’d been one of the great names of South African human rights activity, I succeeded to quite a bit of her work, the Black Sash then came to me, so slowly I was getting it. Jack Untenhalter came to see me to ask if I would take the Molefe matter - first in the Lesotho High Court and then to the Privy Council - because the attorney there couldn’t get a passport and couldn’t raise the money, and I was asked to raise the money. And then later on there was a long long treason trial in Lesotho, and I was asked to be the attorney, I didn’t go down there for that purpose but I briefed counsel in the matter (phone call interruption). I suppose it really was an extension of my belief in the injustice of the society, I am sure that it was a conscious thing. I was involved… at one point it was a conscious decision, um, I mean I was articled to a firm and the people in fairness - a very ordinary little, run-of-the-road people, did not object to my taking on political work, there wasn’t much. Because most of the, us frankly abdicated in favour of Ruth Hayman, but I was already doing some work - I was doing the Privy Council case, I was doing various other odd things - and my partnership was dissolving, there were two brothers and myself, I was due to continue and practice with the one brother, and then we negotiated with another firm to amalgamate with them, Denis Kuny and I were asked to go down to Lesotho at short notice by Jack Untenhalter because his passport had expired and he didn’t have a new one, to bring a habeas corpus application on behalf of Mokethesle, the leader of the opposition, who had been detained after the coup. And we rushed down at midnight, and we got to the border, and we got there, and they’d closed the courts, and the Judge Jakobs who’d been seconded there refused to hear our application and we went to see the puny Judge and he said his pension is more important than Mr. Motsu Mokethesle’s freedom, good bye, and we went back and there was a long report in the paper, admittedly we gave the story as to how this drama about changing the, the change rooms, at the hotel and so on, and then the new firm imposed the condition that if I were to join them I had to give an undertaking not to handle any political cases. Which I refused to do. So that was the really conscious decision and I went on my own. That was the time when we were planning to go to London for Joe Molefe’s matter, and then later on ffrench-Bretygh was detained and arrested. And that just happened. You know, when you get somebody who is prepared to do it, I suppose there’s a flood. Same with Sean Chetty because...

Taylor: Yes. But to what extent did you, did you get criticism from your colleagues within the legal profession?

Tucker: Oh I was like a pariah.

Taylor: Really.

Tucker: I really was. Nobody really was interested in any association with me, I remember at an annual meeting of the Law Society I stood up and criticized the chairman, the President of the Law Society, for having given his whole report without having mentioned that something like several hundred of our fellow citizens were detained without trial that year, was there nothing which concerned them? And I was howled down. The only people who wanted to sit with me at lunchtime were black lawyers who said we supported you completely, so I said ‘Why can’t you stand-up and say so?’ Um, and I’d hear people say how inappropriate to arrange it at this sort of gathering. Oh no, I… I really was not a, I was sort of seen as an ‘obstrucker’.

Taylor: But it would be true to say that whilst in your early years you were one of few people, in the, from the seventies, late-70s, eighties onward with the rise of the LRC there were more people moving into this area? giving it maybe a greater sense of… or not?

Tucker: At a time when money started becoming available, during the eighties, more and more people started coming into this field - particularly black lawyers.

Taylor: And the money - I mean I guess the IDAF was the main…

Tucker: Exactly. It’s IDAF, it’s IDAF money.

Taylor: And I don’t know what you, I mean how would you, in terms of the IDAF how would you assess it’s importance? I mean I guess a lot of these cases would not have happened without this financial support.

Tucker: There is no way that one can over-estimate the importance of the IDAF, it’s of crucial importance. I never ever had problems getting counsel to act, but if they had to take on trials for nothing or long trials for nothing, you know that couldn’t happen. No, it was part of the strategy they tried to impose restrictions on monies coming into the country, and one had to devise stratagems…

Taylor: Yeah, I mean this article that came in the British Law Society (Gazette), this is very interesting; it highlights the various ways that trust funds were set-up and the money was channeled through to famous people and…

Tucker: And prominent firms of lawyers. Yeah (looks at article), Montagu… Oh yes, there were a number of firms, there was a firm in Oxford - Rosemary, she was married to Ken Pollock, I can’t remember her surname, I think she kept her maiden name, and there were firms in London. And they changed firms from time to time, and some monies would purport to come from Lord Astor and in the case of the Dean, it’s purpose was to come through the Bishop of London, you know one always knew that there was this device, but it is was IDAF essentially.

Taylor: And people knew that a lot of this was ANC money as well, or not?

Tucker: Well I don’t know if it was ANC money, because ANC didn’t really have money but it was the Swedish government…

Taylor: Yes.

Tucker: The Norwegian government, I think.

Taylor: Mmm.

Tucker: So I don’t know if it was necessarily ANC money, but it was primarily directed, intended for the ANC, but I think reluctantly they had to use it for other purposes.

Taylor: I know the, I mean there were great attempts to stop that money wasn’t there, by the National Party? But they could never penetrate the way the money was coming through.

Tucker: Yes, I think they would like to have done, so they imposed some conditions which I think made it a little bit awkward. I must tell you when the Council of Churches had their own fund here, I did work for the, John Reece - who was the former general-secretary, I was his attorney as well…

Taylor: Oh, Race Relations… yeah.

Tucker: Well originally Race Relations and then he was Council of Churches, and then he was charged with fraud and theft, and I acted for him as well. Richard (Goldstone) was the judge in that matter. He gave the most amazingly humane judgement. But they too tended unquestionably to favour ANC people, and I had one hell of a row with them once because I was acting for some Azapo people and they wouldn’t give any money, it would’ve been for bail and I was just outraged. There was unquestionable bias towards the ANC.

Taylor: Mmm. What was your role in the emergence of the LRC? I mean, you were, were you involved in the initial discussions around that or..?

Tucker: Not really. Geoff (Budlender) of course was my articled clerk.

Taylor: Right.

Tucker: And when I wanted him to stay on, to work for me, Arthur had already taken him on and pursued him. But Geoff was much more at home there than elsewhere. No, I… I’m not sure that I, I don’t think I really played any role, in fact Arthur I think almost deliberately excluded me from that. I did the notarial deed, although they say I did the original trust deed - I didn’t, I signed it as notary, but I didn’t sign… although their memories are faded, and why I say that I didn’t do it is that I was not impressed with it. And that was done by one of the big establishment firms. I really wasn’t enthusiastic, the whole ordinary, the whole introduction was inappropriate, but thereafter from time to time Arthur would do amendments and I would register them and so on. I always looked to myself and they looked to me as the attorney to the LRC, but I really never participated in those discussions.

Taylor: Again they were made possible, well, very much from foreign funding as well. I mean the Ford Foundation I think has been a major…

Tucker: Oh they couldn’t have got going without the foreign funding. They, I think they got it from Carnegie and Rockefeller. Carnegie I think was an important donor, if I’m not mistaken. They did get some monies from local companies, but very little.

Taylor: Yeah.

Tucker: Certainly not enough to enable them to survive.

Taylor: In your role as attorney to the LRC, were there any really, were there major problems that they encountered for which they needed…

Tucker: No, it was more the nitty-gritty sort of thing which I called upon to do.

Taylor: I was interested, I don’t know, do you know, I was reading this book (Mission Improbable) over the vacation, by Richard Rosenthal…

Tucker: I’ve got it next to my bed, one of many.

Taylor: Were you aware of what he was doing?

Tucker: No, no. Very few people was.

Taylor: Very interesting book, very interesting book. The other, I see you’re mentioned also in here (Mamphela Ramphele’s autobiography)…

Tucker: Yes, right. I acted for her. Steve Biko phoned me and asked me if I would go up to see her, and I did. It was so funny because I went there - I was very nervous - and over-awed really, I went to this place where she was staying and she showed me this - her banning order and I said, giving her a long compus talk, what she could and couldn’t do, as by way as a banned person, and she said ‘By the way they’ve spelt my name wrong, they’ve put the ‘e’ where at the end where it should have been an ‘a’, and an ‘a’ when it should have been…’, and I said ‘Oh, that’s interesting’, and she said ‘And by the way they’ve got the wrong ID number’, so I said ‘But they’ve banished the wrong person. I don’t suggest that you challenge, go to court to challenge this, but if you were to leave here I would be very happy to defend you’.

Taylor: Laughs.

Tucker: And I said ‘Are you going to leave the country?’ And she said ‘What do you mean leave the country, I am going back to Kingwilliamstown’ (laughs). And she phoned somebody she knows, Cedric Mayson, and he flew her down.

Taylor: Mmm.

Tucker: And that was it. Yes, then and thereafter I had various other things. But then she moved down to Cape Town.

Taylor: Mmm.

Tucker: Then I referred her to Michael Richmond… attorneys.

Taylor: Mmm, it’s a very interesting story there, yes… challenging the banishment order, yeah. And…

Tucker: I don’t know if you’ve read, um, I’ve got it somewhere, Gonville ffrench-Bretygh’s written a book…

Taylor: Encountering Darkness, yes I’ve read that it’s very… I mean my impression, I mean there I guess from an early day you could see the State’s interest in getting a hold on or dealing with the Defence and Aid kind of funding for…

Tucker: That’s exactly what it was. That’s what they wanted to hit. They wanted to hit two things: the Church expressing opposition and people receiving money.

Taylor: Mmm, yeah.

Tucker: One of the extraordinary bits of luck we had, was that his secretary when they did a raid on his offices found and kept a letter from Alison Norman - the niece of Lord Norman of the Bank of England - when she was Dean of Salisbury, in which she wrote saying that she had more money than she needs, she belongs to this particular order which believes that you must give away everything you don’t need and she’d like to give him money; she was the ostensible donor.

Taylor: Mmm.

Tucker: They wanted a Commission in London for her to give evidence and she gave evidence, but the twit of an Attorney-General, a man called Liebenburg I think it was, was so over-awed by this English counsel’s chambers, dark timber, wonderful books, and the rest of it, that he was unbelievably incompetent in his cross-examination and he didn’t see that on her bank statements every day, every-time there was so many thousands of pounds transferred to ffrench-Beytagh, there was a corresponding entry the day before, but he didn’t…

Taylor: Laugh.

Tucker: …but he didn’t see this.

Taylor: Incredible, incredible.

Tucker: Urr, sorry I got somewhat side-tracked now.

Taylor: No, it’s an interesting… So the outcome of that case was that he, I mean what happened to him after he was…

Tucker: He left the country immediately; on the night that he left, that he was acquitted in the Appellate Division. The Church had made it clear that there was no place for him here, they didn’t want him back, he was an embarrassment to them. They distanced themselves in the most atrocious way, when he was arrested the Bishop of Johannesburg issued a statement which rather than refer to… he’s absolutely sure that this is nothing to do with his religion, and one got the impression that he was cornering little children in the cathedral - you know that’s the sort of impression that was created. And also we were really concerned for him, he was a very nervous man, he wasn’t well, he would consider staying on his own, something about hepatitis, so you know don’t talk (in whisper)…

Taylor: Mmm. Were you, turning to the Institute of Race Relations, you’ve acted for them for a, I mean were you… the Schlebusch Commission, were you…

Tucker: I took them to the Schlebusch Commission.

Taylor: And what was… I’d be interested to hear your view on the position of the Institute of Race Relations took in the Commission, because I mean there was a different strategy wasn’t there to that of the Christian Institute?

Tucker: Oh, quite different. Their attitude was we don’t even know why you bothered to bring us here, we’ve answered it. And there was only one very small area in which I had occasion even to object, to this question which seemed to imply some illegal conduct on their part. But it was a…

Taylor: Why do you think the State choose, included them in the…

Tucker: It was part, I think, of the tactic; if you just look at the range of bodies - again it was an attempt to silence them. Intimidation was a major part of what they, of their politics.

Taylor: Mmm, mmm. Because I mean you know, the Institute… it would seem that the Institute really was on a different politics to the Christian Institute, to Nusas…

Tucker: They were much more conservative.

Taylor: …to United Christian Movement.

Tucker: Much more conservative. It was much more either research or welfare orientated.

Taylor: Yeah, yeah.

Tucker: But it did adopt a strong political line - a liberal line.

Taylor: Mmm, mmm. I mean one of the things that I’m interested in just getting your views on as well is that… I don’t know what you’re reaction will be to this diagram (hands diagram), but it’s kind of, in the process of working on this project I’ve tried to kind of construct a kind of network; of showing how these organizations interacted. So for example, we have LRC that was close to the Black Sash, to Imssa, acting for End Conscription Campaign, having some ties with Idasa. Oh, what I’m interested in is how, the extent to which at the time one saw a kind of anti-apartheid NGO network in which people were interacting in different ways. I mean talking to you now it’s interesting to see how indeed you actually have attachments in various ways to a number of these organizations and also how, for example, the work of the Sash would feed into the legal work of CALS or the LRC. Um, I just wonder if you…

Tucker: This is fascinating. What’s PSV?

Taylor: Oh, that’s the Project for the Study of Violence which is now the Centre for the Study of Violence and Reconciliation.

Tucker: And CIS?

Taylor: Centre for Intergroup Studies, now Centre for Conflict Resolution at the University of Cape Town.

Tucker: QPC?

Taylor: Quaker Peace Centre, at Cape Town. Race Relations, Koinonia, Justice and Peace of the Catholic Conference, Imssa, Black Sash. These are organizations that in this project we’ve studied in some detail. We’ve chosen these primarily because they were concerned with peace and conflict resolution, in other words they tried to maintain a kind of position of neutrality and impartiality, whereas some of these other organizations like SACC and Nusas were more politically aligned.

Tucker: I’ve been involved with a number of these other ones there; I’ve been involved with Lawyers for Human Rights, I was one of the founder members of that, I was local chairman here for a while, then it, I allowed my membership to lapse…

Taylor: The Human Rights Committee, Commission? with Max Coleman…

Tucker: No, I was actually very hostile to the Human Rights - I was very much, I was very hostile to them, because I just saw them as, just as a front for the ANC.

Taylor: Mmm, mmm.

Tucker: TRAC I was involved in, but that’s very much Black Sash…

Taylor: Yes, it’s an off-shoot…

Tucker: …I did work, I did odd things for TRAC as part of Black Sash, TRAC. Nusas, I did work for them up here, after Ruth Hayman left the country, when she was banned, but their basic work was down in Cape Town, their legal work - so I did some work for them. Um…

Taylor: Five Freedoms Forum?

Tucker: No, I wasn’t involved there. But Sached I was the attorney for, for many years. Um, and Institute of Race Relations. Yes, I don’t think Sached had any other dealings there. This looks an extraordinary (diagram)…

Taylor: But I mean it would be fair to say, although you may have had some differences with some of these organizations, there was a kind of common, there was a common intent if you like in terms of building a non-racial democratic South Africa, however there may have been differences on how you do that, and differences in terms of…

Tucker: …the ultimate goal. In terms of the detail of the ultimate goal - oh absolutely. They were all involved in that. Sached was extremely important because it was providing education. Though you must realize that Sached was essentially an educational body, it really is a different area of enquiry of the NGO’s which were working in areas not acceptable to the government, but which were without an immediate political objective. Sached was one, Market Theatre I can think of another, Church bodies, other educational trusts of one kind or another, the Alexandra Health Clinic working in Alexandra township providing those… always on the fringe of government action of one kind, devised a scheme whereby monies would be sent through other resources in case they were closed down. So it really is another area. That’s the only one. Because I think you are right in including Imssa, because - although Imssa was focussing in a particular area - that is dispute resolution in labour and particularly following on the Labour Relations Act, but I don’t think it had as overt, in fact I know it didn’t have it, as overt a political objective as Sash, Idasa, Institute of Race Relations, Lawyers for Human Rights, SACC… I see you haven’t got the Christian Institute here…

Taylor: No, it’s because it was banned, what in seventy-…

Tucker: Oh earlier, right.

Taylor: We’re certainly looking at it in the earlier phase.

Tucker: I think you may find, you probably haven’t got time in any event after all of this, to look at all those others and the role that they played.

Taylor: Mmm, I would like to, I mean also there are some that aren’t, I mean when I show this to some people they say ‘Oh well, there are other organizations…’, well like Jodac, or - CASE, or… that should be here but aren’t here.

Tucker: But CASE is research.

Taylor: Yeah.

Tucker: Wasn’t it?

Taylor: Yes, it was really primarily research, yes. But I mean a lot of people would argue that that is what the Institute of Race Relations has become, with their Survey, in the eighties…

Tucker: Except that the Institute periodically issues very relevant statements based on research and…

Taylor: … and lobbying.

Tucker: And lobbying.

Taylor: Yes, that’s true, it’s more engaged.

Tucker: So it is a political lobbying group.

Taylor: Yeah. I mean, to what extent, I mean looking at this now one can see how it worked, but to what extent do you think at the time, in the seventies and eighties in which you were involved with these organizations did you conceptualize it as a network, or were it simply that these organizations were there (interruption for phone call)… The question about the extent to which you saw it as a network or…

Tucker: Yeah, I didn’t really see that, because during the eighties particularly - I was very conscious that organizations were going in different streams - there’s the mass-based movement on the one hand, excluding white liberals, and I think in broad terms, the liberals in turn were flirting in some cases with the ANC, some wanted to be seen as if they were close to the ANC, but I think there was that broad division so I can’t say that there was any sense overall, but I think there was certainly an awareness, at conferences and meetings and things like that, of people with a common ideology.

Taylor: If I can just ask one final question?

Tucker: Of course.

Taylor: Um, in Stephen Ellman’s book, I guess you know his book on, I don’t know if you know this book, In a Time of Trouble, which looks at emergency law (shows book)…

Tucker: Has this come out here?

Taylor: It’s several years old now.

Tucker: Oh no, then I haven’t, no.

Taylor: But in the end here he raises the point which I’d just like your comments on; I’ll just find this piece. He raises the point here that ‘conscientious anti-apartheid lawyers are not obliged to see themselves as activists’, and I just wonder how you would relate to that, the extent to which... Clearly you were involved in a lot of anti-apartheid cases, but I guess you wouldn’t see yourself as an activist, but you would argue that you don’t need to be an activist to challenge…

Tucker: I think that, that is right. One thing I made a decision at a fairly early stage in my career, of course this sort of work was only part of my work and I needed to keep alive by handling commercial work and conveyencing and company formations etcetera, and I was never going to be actively involved in politics so as to create perhaps an embarrassment for my clients, as it is I know that people didn’t give me work because of what I was doing, that is a fact. But those who did, I didn’t want to chase away; so I never joined the Democratic Party which was the closest - I had my own problems with the Democratic Party, but I wouldn’t join that, I didn’t, couldn’t identify with any, I didn’t identify with any one particular grouping, the result was that I could act for PAC people and I could act for ANC people and Black Consciousness people, when they would come to me.

Taylor: You had a notion of kind of objectivity, a notion of objectivity tied to the law as it should be.

Tucker: Right, right. But to say that I didn’t have an empathy with the people…

Taylor: That would be wrong, yeah.

Tucker: That’s out of the question because I mean I just…

Taylor: Otherwise you wouldn’t have done it.

Tucker: …wouldn’t have been involved in that, yes. No, I agree, in fact I think it’s highly undesirable that the lawyers involved in those sort of matters should have been activist lawyers - outside of activism within the law, I mean I was an activist in the Law Society meetings and argued within its chambers in that sense, within its gatherings, but not publicly; occasionally I would write a letter to the press when I got really very angry and they’d invariably publish it, which was very nice. But um, again it was as, never a party political line, but never the line of any organization, it was essentially a line of principle. But no, I certainly agree with that.

Taylor: Okay. Well thank you.