Charles Nupen, ace labour mediator, in The Mark Gevisser Profile
When Lili Nupen, a Standard Six pupil at Roedean, had to do a research project into her relatives, she chose two lawyers. The first was her great-uncle, Buster Nupen, a Springbok cricket captain in the 1930s and an illustrious attorney. The second was her father, Charles Nupen — National Union of South African Students president and terrorism trialist, activist lawyer, ace mediator, and kingpin-apparent in the new labour relations dispensation.
Lili’s task was not to compare relatives, generations or political contexts. Neither was it to track the passage of time and consciousness through a Natal English family. If, however, she were doing a family ethnography, she might have written a thesis about how her dad, an affable and gangly beach-boy, might well, in his own words, “have had a simpler life, as a conservative Durban lawyer in a conservative Durban firm, had I not landed up in student politics at the University of Natal in the early 1970s”.
Now, almost exactly 20 years after he spent a year in the dock as an accused in the Nusas trial, Nupen has just successfully mediated a four-province municipal-workers’ strike. It’s a balmy spring Sunday morning, and although the strike has been settled, there’s still a pile of trash outside the Nupen home which, at the end of a panhandle off a busy road in Parktown North, is upwardly-mobile with a whimsical edge. It feels sheltered; a good place to be a kid.
Charlie and his wife Dren gather their kids and the dog Toto together for a family portrait. In Buster’s generation, Nupens probably said “Cheese!” or “D- day!” to show off their perfect teeth; when Charles and Dren were students, they probably said “Sex!” or “Freedom!” Now, all together, the Nupen family shouts as the camera clicks: “Ar-Dee-Pee!”
Nupen is one of that generation who — if they still have it — have managed to keep their hair over the collar; whose hairstyles have moved from Sixties hippyish insouciance to Nineties pre-Raphaelite dash in exact tandem with their careers, without ever conceding to short backs and sides (except, perhaps, when they were in prison).
Many of them came from Durban, where they gathered around Rick Turner: Nupen, Paul Pretorius, Karel Tip, Fink Haysom, Halton Cheadle. With the exception of Cheadle — who helped found the Wages Commission and rose through the union movement– they were elected to the Students’ Representative Council and became Nusas presidents.
They then went into law, either working for Arthur Chaskalson at the ground- breaking Legal Resources Centre or at the progressive firm they started, Cheadle Thompson and Haysom.
They are still great friends. They hang out in Melville rather than Yeoville; they are leftysomething rather than ageing strugglista, laid-back rather than intense. They are boys’ boys who have become New Men: in their 40s, they can get rather rowdy on a night out with the guys, but they also can talk about their feelings.
Nupen arrived at the Durban campus “a beachboy who liked fun.” He left, deeply engaged in anti-apartheid politics; his charm, say his friends and comrades, is that he never stopped being a beachboy who likes fun.
Perhaps they were yappies (young activist professionals) rather than yuppies: while they paid the price for activism (bannings, detentions, trials), they saw — quite correctly — that they could help change society with their professional skills.
For Nupen, the revelation came during the Nusas trial, “sitting in the dock for 12 months and watching Chaskalson [the accused’s senior counsel] operate; seeing how you could use intellectual ability and technical expertise and unbelievably meticulous preparation to achieve an objective, and how you could look for loopholes and contradictions in the law to develop arguments and precedents.”
Nupen himself, as a lawyer at the LRC, struck the first blow against influx control by winning the Rekhoto case in 1983. Like his contemporaries, he remains, he says, completely committed to “the Chaskalson tradition” — activism through your profession.
While Tip and Pretorius are at the bar (where much of their caseload is union- work), Haysom is Nelson Mandela’s legal advisor: he will be at the president’s side when, later this month, he signs the groundbreaking Labour Relations Act, which was drafted largely by Cheadle, and the cornerstone of which is a statutory body, called the Commission of Conciliation, Mediation and Arbitration (CCMA), to be headed by — you guessed it — Charles Nupen.
The CCMA should be up and running by May next year. It will be an immensely powerful organisation, providing an enormous range of dispute- resolution services across the country to anyone who needs them. With a staff of around 200, it could cost as much as R100-million a year to run. It will, however, ultimately replace a range of state services that probably add up to close to that anyway, and if it rationalises this country’s fragmented labour relations system and resolves disputes before srikes happen, it could save the country 10 times that.
The CCMA’s proactive and informal model of mediation and conciliation was pioneered, in this country, by the Independent Mediation Service of South Africa (Imssa), the body Nupen founded in the mid-Eighties and ran until last year. Imssa’s success rate in dispute resolution is 80 percent, as opposed to the 20 percent of the Department of Labour’s conciliation boards.
Nupen’s challenge will be to set in place an institution that fulfills its mission and does not become yet another self-perpetuating bureaucracy. He has not yet been appointed to head the CCMA (the body is to be governed by Nedlac-like coalition of state, business and labour), but he is a shoo-in: he has become, in this country, synonymous with mediation.
His speedy brokerage of the municipal strike is just the crowning moment of a career that has included a resolution of the transport strike in 1990 (in which there was damage to hundreds of millions of rands’ worth of property), and the 1987 OK Bazaars strike, where he managed to get both sides talking even after unionists planted a bomb in a shop and management got the police to detain strike leaders under State of Emergency regulations.
All the more remarkable when you consider his close affiliation with the labour movement. Piet Roots, chief negotiator for the municipalities in last week’s strike, has nothing but praise for Nupen. He went in skeptical: because of Nupen’s background, and because statutory mediation had been ordered by Labour Minister Tito Mboweni at the behest of the union. “But as soon as he opened the proceedings, my misgivings went away,” recalls Roots. “His personality is of such a nature that you trust him immediately.”
Nupen is the first to admit that he does not handle conflict well at all: “Perhaps,” he says, “that’s why I became a mediator.” His response to conflict is to be irrepressibly affable; unfailingly eliciting. During the Nusas trial, when the magistrate did a summing up of the accused, he called Nupen — on trial for terrorism, remember — a “cheerful witness”.
Two years earlier, when he was Nusas president in 1974, he developed the reputation, at a time when a hard left was developing and student attitudes were polarising, of perpetual pacification. One delightful example: in the 1974 General Election, Nusas urged students to “consider carefully” whether or not to vote. Helen Suzman responded, publicly, with characteristic ire. Nupen tried to patch things up by going over and presenting her with a bunch of flowers.
I can easily picture the man, loping and diffident, hang-doggish at Suzman’s doorstep. If she didn’t melt, she’s a tougher nut than Piet Roots — or a profile writer looking for a hard angle. If he doesn’t like a question, Nupen grimaces and looks down for a moment — and then engages you with a smile and tries to answer it anyway.
One of those Nusas lefties plotting revolution at Wits campus in the early 1970s remembers that “even though his politics weren’t particularly substantial and he came across as an ineffectual gangly guy, he was a genial candidate [in the presidential election]. Everybody liked Charlie.”
At the LRC, he had a difficult time. “He worried immensely about his clients,” remembers the centre’s Geoff Budlender. Although Nupen doesn’t talk about it, his decision to leave the practice of law and move into mediation was probably because mediation requires you to keep your distance, to maintain dispassion. Law, on the other hand, is all about advocacy; about identifying, in Budlender’s words, “heart and soul” with the client. “I went into mediation,” remembers Budlender, “and I was bloody useless. I decided in a moment who was the right guy. It astonishes me how guys like Charlie can keep their distance.”
And so Nupen — who played a central role in the peace accords of the early Nineties and who served on the Independent Electoral Commission — found the perfect profession in mediation: it made a virtue of his affability, his reserve and his optimism. What better peacebroker than one who believes, intrinsically, that things are going to work out?
He is chairman of the parents’ committee of Auckland Park Primary School: “The headmistress told me that the number of parents who have emigrated in the past year has risen sharply — because people simply cannot maintain the levels of anxiety as a result of crime.”
It has affected him too: at the moment, for example, he is cadging lifts all over town because his car was stolen from outside Paul Pretorius’ place. But although he finds himself “inevitably driven to a harder line about crime”, he feels “more secure in this society relative to how I ever did under apartheid. But then I suppose I’m not typical of a regular white middle-class professional.”
Like all white parents of his class and generation, he is aware of the challenges that will face his kids. He states them, though, without resentment: “Their challenges will be finding jobs, and looking to create as normal a life as possible in a developing society.”
He, on the other hand, “never once thought about the possibility that I would not be employed, that I would not have an interesting and fulfilling life”. It is a statement of magnificent empowerment. He knows that “the fact that we have affirmative action at this point in time means that if you’re white and male, you’re not as marketable. That’s quite tough for people who committed themselves to the struggle against apartheid — to get over the hump, move into a new society, and accept that your whiteness and your maleness is an impediment.”
He was personally confronted with the issue at Imssa, “an organisation dominated by white males … Issues are often raised, and maybe you think it’s unfair, but you learn to live with it.”
The New South Africa, he says, “is not a world for delicate people.” Charlie Nupen does not strike me as having a rhino hide, but there’s nothing that even smacks of extinction in his white masculinity.