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Chief Justice Pius Langa

I WOULD like to begin with a story which you may know well. It is the story of the emperor who had a particular affinity for fine clothing. He wore the most expensive and rare garments on earth. One day, he was approached by a mysterious tailor who claimed he could make him the most beautiful and extraordinary garment. The emperor fell for this, particularly the promise that the beautiful garment would be visible to only the most intelligent people.

When the “robes” were ready, the emperor organised a grand parade to show off his new clothes. The emperor’s advisers were full of praise since none of them wanted to be thought of as less than intelligent.

So, on the great day, with his subjects lining the streets to see the emperor in his new clothes, he marched down the street to much applause and apparent admiration. When a little boy shouted the truth that the emperor had no clothes on, he was arrested, put in jail and later died there.

What does this fairytale have to do with Bram Fischer? The tale has relevance at two levels. The first is the leadership level. How much more damning of a leader can one be than to say that the emperor has no clothes. It implies that the leader is vain and listens only to the advice he/she wants to hear and, as a result, is on a downward slide.

These are leaders who become adept at listening to themselves and turning a blind eye or a deaf ear to those who tell them bad news. They become equally impervious to the suffering of their subjects because pain is bad news and imposes obligations these leaders would prefer to ignore. What they want to hear is praise, adoration and endless flattery.

In that euphoric, unreal atmosphere, the observations of a little boy would go unnoticed. To loosely appropriate the words of a former apartheid cabinet minister, the plight of those who are desperate and who struggle to survive leaves them cold.

The second level of relevance relates to the rest of us. It speaks of a susceptibility to conform, to submit to peer pressure, to populism, to political correctness and to a reluctance to think for one’s self. I am referring to the lack of courage to say or do the unpopular thing, to follow the dictates of our conscience. The favoured choice is the safer route to do nothing. But to keep hoping that others will do for us what we fear to do ourselves, we accordingly wait for the little boy to emerge from the shadows and point out the obvious – that the emperor has no clothes.

There is no doubt that the world, and this country in particular, are in dire need of men and women of courage who follow the dictates of their conscience. South Africa is a young country on the democratic road and can only benefit from having all constructive views not being withheld, but being freely expressed.

We started well when we adopted a Bill of Rights 13 years ago which, among others, promotes and protects freedom of expression and thought. These are freedoms which the sons and daughters of this land made enormous sacrifices for.

We should therefore ensure that those who have something to say, albeit differently and contrary to what the majority espouse, have the space to express themselves.

Fischer lived a life of courage and had an instinctive will to do what he believed in. That is what set him apart from many in his generation. His refusal to conform because of his convictions pitted him against his Afrikaner heritage and his profession as a lawyer. He chose to speak his mind and to follow his conscience, regardless of the cost to himself. Today, we are able to say that his life and activities were central in the creation of the democracy we cherish.

Fischer dared to be different. The son of a judge president of the Free State and the grandson of a former prime minister of the Orange River Colony, he was destined to join the ranks of the Afrikaner nationalist elite. His forebears were fervent Afrikaner nationalists, but Fischer’s family, like his life, was not that simple. Although they became part of the establishment, his father and grandfather were rebels in their own right.

His grandfather fought against the British in the South African War. His father, at the time an advocate, represented the Afrikaner rebels who refused to fight for the British in the First World War. Despite the efforts of Fischer’s father, the rebels were convicted of treason and sent to jail.

The episode caused the Fischer family great financial and social hardship but his father never relented in his support for the rebels and regularly took his young son to visit them in prison. With the coming to power of Afrikaner nationalism, the need for rebellion seemed a thing of the past.

For much of his early life, Fischer was headed down the road of privilege and status. Early in his university career he believed in segregation and found it difficult to touch the hand of a black man.

He recounted an important moment in his life when he gave a lift to an old ANC leader. Fischer argued with the man that segregation was the only means to prevent friction between different races. The man disagreed and told Fischer that if you place the races of one country in two camps and cut off contact between them, those in each camp will begin to forget that those in the other are ordinary human beings, that each lives and laughs the same way, that each experiences joy or sorrow, pride or humiliation for the same reasons. Thereby each becomes suspicious of the other and eventually fears the other, which is the basis of racism.

This encounter, his studies at Oxford and his Soviet Union travels convinced him that apartheid was indefensible. He then became involved in the struggle. On many occasions, he acted for struggle activists including those at the Treason Trial and the Rivonia Trial.

But his involvement with the struggle went deeper than mere representation. He was part of the struggle, he was present at the Rivonia meetings and was part of the group that took the decision to resort to armed struggle. He was very reluctant to be part of the defence team at the Rivonia Trial because of his intimate knowledge of, and involvement with, the alleged treason. Yet his dedication to the cause outweighed his reservations. He always felt there was an additional duty on him because he was an Afrikaner and believed that “at least one Afrikaner should publicly identify himself with the plight of the people”.

He rebelled against the dictates of the legal profession. Always a believer in the rule of law, Fischer questioned adherence to that rule when the results were so obviously unjust. He defied the rule of law in several ways. During the Rivonia Trial he used his access to the evidence to inform the remaining Umkhonto weSizwe members of possible targets. He appeared in the Rivonia Trial despite a clear conflict of interest.

But Fischer’s most flagrant breach of the law came at his trial when he jumped bail and went underground to continue the struggle. In a letter explaining his decision to the court, he said: “When an advocate does what I have done, his conduct is not determined by any disrespect for the law nor because he hopes to benefit personally by any ‘offence’ he may commit.

“On the contrary, it requires an act of will to overcome his deeply rooted respect of legality and he takes the step only when he feels that, whatever the consequences to himself, his political conscience no longer permits him to do otherwise. He does it not out of a desire to be immoral, but because to act otherwise would, for him, be immoral.”

History boasts many famous dissenters. They made their names by rejecting the norms of their time. Many moved mountains through disagreement and suffered for their cause. In the last century, Mahatma Gandhi, Nelson Mandela, Oliver Tambo, Steve Biko, Robert Sobukwe, Martin Luther King and many others chose the lonely road of dissent and were punished for it.

Gandhi, Mandela and Sobukwe were jailed for long periods, Tambo spent years in exile, Biko and King were killed. It is not easy to tell the emperor he is in his birthday suit. But through the power of their ideas and their refusal to be cowed or intimidated, these heroes won the admiration of many and changed the face of the world we live in.

In more recent times, there is the tragic story of Ken Saro-Wiwa, who stood up for his people against the state. He wrote strongly about the exploitation of the Ogoni people by the Nigerian government and foreign oil companies. At his trial by a military tribunal, Saro-Wiwa told his accusers and their judicial associates: “I have devoted my intellectual and material resources, my very life, to a cause in which I have total belief and from which I cannot be blackmailed or intimidated. I have no doubt at all about the ultimate success of my cause, no matter the trials and tribulations which I, and those who believe with me, may encounter on our journey. Neither imprisonment nor death can stop our ultimate victory.”

He was convicted and hanged. But, as often happens with martyrs, his death drew international condemnation of the Nigerian government and the country was temporarily suspended from the Commonwealth. The widespread condemnation was partly responsible for the overthrow of its military dictatorship.

However, not all dissents involve massive projects. Sometimes the simplest act can change the course of history. On December 1 1955, Rosa Parks refused to move from her seat on a bus so that a white man could sit. In so doing, she defied an order by the bus conductor. That relatively small act of rebellion set off a chain reaction that inspired thousands to boycott buses. It also played a pivotal role in the American civil rights movement.

What I hope these stories show is the power of dissent and its cost. Sometimes the dissenter is the lone voice of reason in the dark.

There will be some who privately agree with a dissenter. The value and courage of dissent comes in standing up and pronouncing the difficult view in public and taking the consequences. It is easy to believe in something, it is much more difficult to speak out.

There are studies in modern psychology which demonstrate that people tend to follow and be influenced by the general beliefs of a group.

What these experiments underscore is a need for independence of thought and action – a need to make space for people who refuse to accept the norm, despite overwhelming opposition to their opinions. Without expressions of disagreement, the group is the poorer because it acts without all the knowledge that could be at its disposal and therefore often comes to the wrong decision. There is no doubt that dissenting views are important in all spheres of life, not least of all in the practice of law. They lead to healthy debate and a testing of generally accepted views, thus enriching the quality of the decisions taken.

In his book, Why Societies Need Dissent, Professor Cass Sunstein argues – through an evaluation of human behavioural patterns – that people sometimes contradict their own opinions and ignore the evidence of their eyes to conform to a group.

He refers to an important experiment conducted by social psychologist Solomon Asch to determine the extent to which people conform to social pressures.

The experiment was performed in the wake of the Second World War partly to try and understand how so many Germans, presumably no different to other people in all nations in terms of being rational caring individuals, could have accepted the Nazi regime so easily.

The subjects were shown two lines of different lengths and, in the face of group pressure, most subjects were willing to conclude that the lines were identical. The experiments led Asch to come to the disturbing conclusion that many people were unwilling to trust their beliefs or ideas on even the simplest of questions in the face of group pressures.

He concluded that: “The tendency to conformity in our society is so strong that reasonably intelligent and well-meaning young people are willing to call white, black.”

The reality is even more disturbing. Asch was never entirely sure “whether people capitulate to the group despite knowing that the group is wrong or whether they conform because the group has altered its perception”.

Could it be true, as the Asch experiment shows, that some people actually believe that white is black? That is a scary thought. And if it affects us when we answer the simplest questions, how will it affect us when answering difficult questions of law, politics or morality?

We do know, though, that many people do express their opinions in public regardless of group pressures.

Firstly, there is some reason to question the conclusions Asch drew from his experiments. While people might be willing to give in to the group when nothing is on the line, no matter how simple the question, studies show that they are less likely to conform if something of value, money, their career, their reputation, is at stake.

Asch’s American survey on decision-making by judges indicated that while they were flexible on some issues, the opinions of other judges seldom swayed them on questions of abortion or capital punishment when life was on the line. Asch also showed that if there was at least one other “voice of reason”, one Confederate who gave the correct answer, the percentage of volunteers who gave the incorrect answer dropped dramatically.

Only a quarter of the people who originally agreed with the group continued to agree if there was at least one other person who differed from the majority view. The point of this discussion is that if people speak up, the group is more likely to reach the correct outcome.

There is unquestionably a problem when people do not disclose their own contrary opinion or release information they have that contradicts the group view.

Dissent has the advantage of enabling others to speak their minds and gives them the opportunity to think for themselves. Society needs people who will act against their own interest, if needs be, for the greater good. The need for dissent applies not only to everyday questions of practicality, fashion or law, but also and perhaps most importantly, to the deepest convictions of society.

In delivering the second Bram Fischer lecture, the late Chief Justice Ismail Mahomed described, better than I can, the importance of dissent for any society to have legitimacy:

“The orthodoxy of yesterday often becomes the heresy of tomorrow. It is therefore necessary that even in the case of very deeply-held and common convictions about what is moral or immoral, just or unjust, the voice of the dissident, the unorthodox and even the apparent maverick must not be suppressed.”

The importance of dissent can be seen in many areas of society. In government, it is vital that there should be people who are willing to speak their mind against what appears to be public opinion and sometimes against the party line.

In the business world, it is important for the corporation and society that people blow the whistle on corrupt or unjust corporate practices. In civil society, it is vital that no voice is silenced because it appears politically incorrect.

Dissenters are not always right. Often they will be wrong and sometimes even cause harm. When dissent is based on a mass of emotions and not on reason, it can easily become a tool of violence, disruption and scorn rather than a means to promote and encourage deliberation and understanding.

My concern is not the content of dissent, the whole point of my address is that all views must be heard, it is the form that disagreement or rebellion can take.