Nelson Mandela and the Canadian legal and judicial profession

The South African ‘Sunday Times’ of 9 February 2014 carried an article entitled, ‘Five facts about Nelson Mandela that you did not know’. Two of those facts caught my personal as well as lawyer’s attention. The first was that it took Mandela 50 years to qualify as a formal lawyer in the context of South African legal education. In his book, ‘The Long Walk to Freedom’, Mandela states that after finishing his law articles in 1951, but before he became a ‘fully fledged lawyer’, he and Oliver Tambo opened the first Black law firm in South Africa in 1952. Mandela had failed his Bachelor of Laws examinations in 1948 due to a confluence of circumstances beyond the purview of this speech. He needed to qualify by alternative means. But he never did until 50 years later in 1989. According to the article in the afore-mentioned newspaper Mandela and Tambo had nevertheless established some kind of law practice in South Africa in 1939, before Mandela was formally qualified to practice law. He eventually was qualified to practice law in Magistrate’s courts but could not accept briefs for higher courts. He handed over those briefs to senior lawyers who were always invariably white lawyers. Only 50 years later and while serving time in a South African jail was Mandela qualified as a senior lawyer. He did his law studies through correspondence.

The relevance of this piece of information for you and I is simply this: If Mandela could take 50 years to achieve his goal under very difficult circumstances which included active political engagement, treason trials, family life and imprisonment for life, you too can set and achieve your goals perhaps in a relatively shorter time. Imprisonment should be no bar to your future. You are not facing life imprisonment.

I have been asked to speak about how Mandela’s life and example influenced my own life. I first encountered Mandela in 1974 when I read his book, ‘No Easy Walk to Freedom’. That book sustained me when I myself was detained for political agitation in Zambia in 1976. I recount Mandela’s influence on me in my 1992 book entitled, ‘Thoughts Are Free: Prison Experience and Reflections on Law and Politics in General’.

I have learnt a lot from Mandela’s single-minded pursuit of education (that unknown fact that you now know). Due to a certain combination of circumstances, I also took some time to be awarded my PhD designation as Dr. Munyonzwe Hamalengwa. I am one if not the only person who has completed three verifiable doctoral dissertations under three different supervisory committees and have lived to tell about it. All my former professors are still alive and can be interviewed if one needs to verify my story. I tell one of my stories involving my first PhD dissertation in a chapter in my book, ‘Thoughts Are Free: Prison Experience and reflections on Law and Politics in General’. I relay the full story of the other two dissertations in a profile in the Zambia The Post of November 2nd, 2013. To achieve a doctorate in most fields is a herculean task. A good and perhaps one of the very few books that has tackled the hazards of PhD education is Wilfred Cude’s ‘The PhD Trap’. But with a Mandelan effort, I managed to eventually get my PhD. The lesson is that you too can finish your education and perhaps get to where you want to go with effort. Mandela emphasized the value of education throughout his life. He believed that it is the only avenue open to everybody that leads to an improved life, a life that can elevate anyone to transcend the circumstances of their births. I too believe in that.

The second fact mentioned in the afore-mentioned newspaper article which really is the centre piece of my presentation today states that only a handful of universities in the world honored Mandela with an Honorary Doctorate while he was in prison and one of these universities was York University in Toronto, Canada. I can relate to this because I was initially solely and verifiably responsible for Mandela getting the Honorary Doctor of Laws at York University in 1989. Mandela picked up the Degree at a ceremony at Toronto’s Queen’s Park in 1990 after his release from prison. I fully document how this happened in my book, Thoughts Are Free. This story is also reproduced in my publication, ‘Giants of Justice: The Nelson Mandela International Award in the Pursuit of Justice’, an initiative that I started in 2005 to try to create an international award, akin to the Noble Prize, but in Mandela’s honour and awarded annually to an individual who personifies the struggle for justice anywhere in the world.

The Honorary Doctorate degree in Law given to Mandela by York University in 1989, the year I myself graduated from Osgoode Hall Law School of York University was because I had founded the Nelson Mandela Law Society at Osgoode Hall Law School in 1986, in my first year of Law School. I used that vehicle to get Mandela the award. After I entered Law School, I researched as to whether there were any African, Black or Minority Law School -based organizations anywhere in Canada, that spoke to the interests, concerns and experiences of Black law students. To my utter shock and surprise, there were no Law School-based organizations that catered to the interests, concerns or experiences of Black Law School students anywhere in Canada. So I created the Nelson Mandela Law Society. The genesis of the Nelson Mandela Law Society and its activities from 1986 to 1989 when I graduated from Law School are described in my book ‘Thoughts are Free’ and the documents that propelled it are reproduced in the publication, ‘Giants of Justice’. ‘The Nelson Mandela Law Society is part of the world-wide movement against the apartheid system of government in South Africa. It seeks to contribute to the struggle against apartheid by mobilizing legal, moral and political opinion within the Osgoode and York community as well as beyond through the organization of conferences, symposia, guest speakers and publications’, read the main reason for establishing this organization. Over the three years while I was in Law School, this organization helped get Mandela honoured by York University, it brought Albie Sachs (later to be a Justice of the Constitutional Court of South Africa) to speak at Osgoode Hall Law School, it brought David Lewis the General Secretary of the General Workers Union of South Africa to speak at Osgoode, organized a conference on the Final Days of Apartheid, as well as a conference on the Death Penalty at which apartheid was condemned and many other initiatives which are fully documented in the above-noted publications.

It is, however, the cascading and osmotic influence or almost invisible albeit very powerful influences that Mandela engendered into the Legal and Judicial profession in Canada that is worthy celebrating. I want to take credit that Mandela’s invisible influence on the Canadian legal and judicial profession was channeled through me, verifiably. Some of the original members of the Nelson Mandela Law Society went on to become judges and prominent lawyers in their own right and I hope that the Mandela influence is still with them. I want to single out a few individuals from the 1986-1989 period of the Nelson Mandela Law Society when I was its founding President. The Dean of Osgoode Hall Law School, Dean James MacPherson who approved the awarding of the Honorary Doctor of Laws to Nelson Mandela, is a prominent Justice of the Ontario Court of Appeal where I hope his decisions are imbued and infused with a sense of the Mandelan sense of justice. Michael Tulloch, a fellow student from 1986 to 1989 and a member of the Nelson Mandela Law Society sits with Justice MacPherson at the Ontario Court of Appeal, being the first Black Judge to ever be appointed to the Ontario Court of Appeal in the history of Canada. Justice Tulloch was elevated from the Superior Court of Justice. Another member of the Nelson Mandela Law Society is Justice Kofi Barnes who sits at the Superior Court of Justice after having been elevated from the Ontario Court of Justice. He is the first African-born Justice to be appointed in the history of Canada. Another member is Lance Carey Talbot who is a prominent lawyer in Toronto and who began to write on the history of blacks in the law in Canada.

Beyond these personalities and others whom I have not mentioned are the legal infrastructures the Nelson Mandela Law Society spurned. Two years after I graduated from law school, the name of the Society was changed to the Black Law Students Association of Canada(BLSAC) with branches throughout Canadian law schools. The students in these branches then created the Canadian Association of Black Lawyers (CABL). All black students in Canada now belong to BLSC and most black lawyers are members of CABL. The origins of these organizations go back to the Nelson Mandela law Society. Michael Tulloch once headed CABL before he became a Judge. Some members of CABL are very prominent lawyers in big law firms and it is hoped that they continue to be influenced by the Mandela sense of justice and they in their own way and capacity struggle for justice for the oppressed and the deserving. Some of these lawyers and judges will continue to make just contributions to Canada’s legal and judicial systems. BLSAC and CABL hold annual and other conferences which continue to enrich the Canadian legal and judicial professions. These organizations continue to advocate on behalf of Black causes and legal reforms.

After law school, I went on to found or be a founding member of several institutions and organizations that have tried to impact positively the Canadian quotient of justice. I founded the Nelson Mandela Academy of Applied Studies in 1996, a paralegal studies program which produced a number of paralegals whom it is hoped are making waves in the legal system. ( See Juliet Young, “Nelson Mandela Academy Set to Produce Legal Entrepreneurs” Pride July 18-24, 1996, P. 4 and reproduced in Giants of Justice, p. 54. See also “Paralegal Students Graduate” Pride April 23-28, 1998). The Board of Governors of the School and the professors at the school included a number of law professors, prominent lawyers and others who continue to impact the law in its various multi-facets. For many years as well, I sponsored the “Law Award” given to a prominent person in the legal and allied professions annually by the African Canadian Achievement Awards presented by the Pride newspaper.

I was also one of the founding members of the African Canadian Legal Clinic (ACLC) whose aim was to engage in systematic litigation to abolish systemic discrimination in Canada, including principally in its legal and judicial systems. I was also one of the founding members of the Lawyers Against Apartheid, whose aim was to engage in litigation against apartheid criminals. I eventually wrote a PhD dissertation on the prosecution of apartheid criminals in Canada and the Dissertation was dedicated to Nelson Mandela.

In a submission to court, Mandela once stated, ‘Why is it that in this courtroom I face a white magistrate, am confronted by a white prosecutor, and escorted into the dock by a white orderly? Can anyone honestly and seriously suggest that in this type of atmosphere the scales of justice are evenly balanced?.... I detest most violently the set up that surrounds me here. It makes me feel that I am a black man in a white man’s court. This should not be…’. It is such statements that influenced me to start advocating for the ideal and practice of judicial diversity from my very first year of law school culminating in my 589-page book entitled, ‘The Politics of Judicial Diversity and Transformation: Canada, USA;UK; Australia; South Africa; Israel; Colonial and Post-Colonial World and International Tribunals’. I would like to believe that my writings on this subject in Canada, including my letters to various Prime Ministers and Ministers of Justice influenced the increasing diversity of the Canadian judiciary. I also ran for Mayor of Toronto in 1997 to order to contribute to the diversity of Canada’s decision-making powers and centres. The point is to contribute wherever you are located, be it in society or prison.

I now turn to Mandela’s own contribution to the law since his contribution to politics is already well-known. What I sketched out above is Mandela’s influence on me and how that influence helped me to influence other people and situations that I encountered. You too can do the same. Mandela’s use of the law greatly changed South Africa and the world. He has influenced Canada. He has also touched you. The proof is my presence here today to celebrate Nelson Mandela with you.

A lot has been written about Nelson Mandela, except his profession as a lawyer. If allowed to practice law without the strictures of apartheid, Mandela would have been one of the greatest lawyers South Africa would ever have seen. We see glimpses of that in the movie that was released on Christmas Day 2013 in North America: Nelson Mandela: The Long Walk to Freedom. Not much has been written about Mandela as a lawyer. Anthony Sampson in his biography of Mandela reports that Mandela had an imposing and feared presence in the courtroom.

Before he became the feared black pimpernel, the world’s most famous political prisoner and an acclaimed international statesman, Nelson Mandela, was an ordinary lawyer doing his thing in apartheid South Africa in the 1950s; he was subject to racial humiliation on a constant basis. Mandela doesn’t talk much about this humiliation in his international best seller, The Long Walk to Freedom.

Mandela took the humiliation in stride, using the courtroom as a theater of struggle just like it was a theater of political struggle outside the courtroom. Martin Meredith recounts some of the humiliations Mandela suffered and the counterattacks Mandela engaged in, in his book, Nelson Mandela, A Biography. Mandela’s life as a lawyer in Apartheid South Africa could constitute an important book on law under oppressive conditions and the role of lawyers in the struggle for justice and freedom. Even in his brief practice of law, Mandela secured seminal victories that many lawyers who would have been practising for even fifty years have not managed. One of these is getting a judge kicked off a case. Many lawyers fear bringing recusal motions against judges before whom they appear. Many lawyers have not managed to prevent disbarment by insisting on representing themselves on disciplinary proceedings against themselves. Apart from Clarence Darrow, which other lawyer has dared the systems as Mandela did during the dark days of apartheid when he told the court that he was prepared to die for the cause of African liberation. This article is a synopsis of Mandela’s imprint on the law in his brief practice as a lawyer.

One time Mandela appeared before magistrate Willem Dormehl. This is the exchange that took place:

MANDELA: I appear for the accused, Your Worship.
MAGISTRATE: And who are you?
MANDELA: My name is Nelson Mandela, Your Worship. I appear for the accused.
MAGISTRATE: How can you appear for the accused? Are you an attorney?
MANDELA: Yes, of course,Your Worship.
MAGISTRATE: Where is your certificate?
MANDELA: I don’t usually walk around with my certificate, Your Worship.
MAGISTRATE: How then am I supposed to know that you are an attorney?
MANDELA: I suggest you telephone the registrar of the court in Johannesburg or Pretoria and ask him whether or not my name is still on the roll of attorneys. . .
MAGISTRATE: I am not prepared to do that. This case will be postponed and you can come again with your Certificate of Admission as an attorney.
MANDELA: May I suggest that we proceed with the case? The accused faces a number of charges. The case will not finish today. I can produce my certificate on the subsequent day on which the hearing of the case will be resumed.
MAGISTRATE: It will be quite irregular to do it that way. The case will be postponed. Mr. Prosecutor, what date do you suggest?
PROSECUTOR: The 22nd, Your Worship.
MANDELA: (in an aside to the prosecutor, but within earshot of the magistrate) I am not available on the 22nd. Can you make it either the 21st or the 23rd?
PROSECUTOR: I would suggest the 23rd, Your Worship.
MAGISTRATE: Mr. Prosecutor, you have already suggested the 22nd. I have written it down. I am not going to scratch it out or amend my record. You don’t have to agree to a date suggested by a person who has not satisfied me that he is entitled to appear in my court. The case will be postponed to the 22nd.
MANDELA: But. . .!
MAGISTRATE: I have already postponed the matter. I will not hear another word that you have to say in my court. Call the next case, Mr. Prosecutor.

On the next sitting, Mandela presented his certificate and the case proceeded. But magistrate Dormehl wasn’t finished with Mandela:

MAGISTRATE: You cannot ask that. The question is not clear to me. The witness doesn’t have to answer that question.
MANDELA: Would you Worship record my question and your ruling that it is not admissible?
MAGISTRATE: You are not here to tell me how to run my court. I will record that which I consider relevant.
MANDELA: The record must be a fair reflection of what transpires in court. If you disallow questions, you are supposed to note the question and the fact that you disallowed it.
MAGISTRATE: I am warning you that you are not here to teach me my job. Ask your next question.

After some fifteen minutes of interruptions, Mandela’s patience was wearing thin.

MANDELA: Your Worship makes it very difficult for me. . .
MAGISTRATE: Just one moment. I want to write something down. (Having done so, Dormehl turned to the accused). Your attorney has withdrawn from these proceedings. You have the right to continue. . .
MANDELA: Your Worship. . .
MAGISTRATE: You sit down and keep quiet. (To the accused) You have the right to conduct your own defence as a result of your attorney’s withdrawal. . .
MANDELA: Your Worship. . .
MAGISTRATE: Sit down or I will commit you for contempt. (To the accused) Or you may ask for a postponement in order to get a new attorney to represent you.
MANDELA: I have not withdrawn from this case. I want it recorded that I have not withdrawn. I want it recorded that I merely said that you are making it difficult for me to continue my cross-examination.
MAGISTRATE: I have told you to sit down and keep quiet. You no longer have locus standi in my court.
MANDELA: I protest. I am still appearing for the accused.
MAGISTRATE: I will count to three and if you have not sat down by then, I will commit you for contempt and ask the court orderly to take you to the cells. I order you to sit down.

Mandela remained standing while Dormehl counted slowly to three. The magistrate then ordered Mandela to be removed from court. The court orderly, a young constable, moved in his direction. “You had better not touch me if you don’t want any trouble.” Mandela warned. The constable hesitated. Mandela picked up his files and walked out of court with the words “I’ll be back.”

After consulting other attorneys, Mandela came back in a big way. That magistrate was removed and a Superior court Judge chastised him. “This is the sort of thing that brings the administration of justice in disrepute in our country...Tell your client that the quicker he recuses himself, the better for all concerned”. The Superior Court Judge told the Magistrate’s lawyer.

Another time, a white judge decided to embarrass Mandela. Mandela had just won his first case and was feeling very good when the Judge looked up and told him, “Mr. Mandela, I have found your client not guilty, not because of you, but in spite of you.” Judges wanted to take away Black lawyers’ dignity by this kind of humiliation.

The decision for Mandela to represent himself at his Rivonia trial in 1963/64 by giving a Statement from the Dock instead of the traditional evidence-in-chief and cross-examination, was a high stakes legal brinkmanship. The group involving Mandela was facing the death penalty. Instead of pleading not guilty, Mandela convinced his comrades to instead indict the White system of oppression in order to leave a historical trail of indictment by which Apartheid would forever be identified and judged. It was feared that Mandela`s self-representation Statement would be seen as a mockery of and cheekiness against the system. The revenge would be a certain conviction and execution. It was generally believed that the treason defendants would be executed if convicted.

Mandela capped his legal brinkmanship at the trial by declaring that he would fight oppression and “if need be, he was prepared to die” fighting the oppression of Apartheid. People warned Mandela that by challenging Apartheid to kill him, he was pushing his legal brinkmanship too far. Mandela refused to remove the challenge of death in his address.

George Bizos, a young lawyer on the treason trial has recounted how this episode unfolded in his book, ‘Odyssey to Freedom.’

It has now been recognised that had Mandela not represented himself and had he and his comrades not indicted Apartheid and had Mandela not dared the system to kill him, the Rivonia defendants would have been executed. Legal brinkmanship paid off. It could however, have severely backfired. [1]

Mandela continued to push his legal brinksmanship game in prison at Robben Island. When he was delivered there, a guard wanted Mandela and his friends to jog across a field for no apparent reason. Mandela realised that he had to assert his authority at once or forever be damned. He turned around to face the guard and in no uncertain terms told the guard: ‘If you so much as lay a hand on me, I will take you to the highest court in the land, and when I am finished with you, you will be as poor as a church mouse.’ The guard backed off, never to confront Mandela again. Mandela had just been convicted; the guard could easily have slammed Mandela to the ground and gotten away with it. Legal brinkmanship can cut both ways. Mandela`s resolve prevailed.

Several years later, Mandela was again at his legal brinkmanship game. The Transvaal Law Society wanted to strip him of his license to practice law because of the treason conviction. The Law Society expected Mandela to retain a lawyer to represent him in Johannesburg. Instead Mandela opted to represent himself. This would have meant that Mandela would have to be brought to Johannesburg where the national and international media would be present to report everything he said and take pictures of him at the time when the system wanted him to disappear from public view forever. The Transvaal Law Society backed down. Mandela was to secure political and legal victories by the use of legal brinkmanship throughout his life.

Mandela was an ordinary man who did extraordinary things. It is within your reach to emulate him, no matter where you are located, you can impact your local environment and circumstances.

*Munyonzwe Hamalengwa, Ph.D a Toronto criminal and constitutional lawyer is the Founder and Principal of the Nelson Mandela Academy of Applied Legal Studies in Toronto. This is an excerpt of a book the author is writing on Mandela as a lawyer. Dr. Hamalengwa is the Author of the Politics of Judicial Diversity.

END NOTE
[1] On the Treason Trial is Joel Joffe`s book, The State vs. Mandela: The Trial that Changed South Africa (Oxford: One World, 2007, originally written in 1965)

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