Was I ready to be a judge with HIV?
Towards the end of September 1997, nearly 11 years after my doctor had called to tell me I had HIV, and three years after our country became a democracy, I fell ill with Aids. The illness hit me hard. Both my lungs were debilitated by pneumocystis pneumonia. Its cause is a fungus that is in the lungs of many people with normal immune responses. It does no harm there. But in people with a weakened immune system, the fungus opportunistically seizes control. It inflicts severe respiratory problems, and unless treated with strong antibiotics can be fatal.
This fungus was stifling my breath. I lay awake at night, trying to inhale. My lungs felt inefficient, distended, like balloons full of water. But what felt worse was another opportunistic ailment, gastrointestinal thrush. This thickly coated my mouth, tongue, throat and stomach. I lost my energy and my appetite. And, when I did manage to take in food, my stomach couldn't digest it. I was losing my weight as fast as my strength, and beginning to get the gaunt "Aids look". I could not help thinking that fungus grows on decaying bodies. My body was dying.
I had hoped never to reach this pitch of decline and fear. A tiny fraction of people with HIV – less than one-fifth of one percent – manage to elude Aids. Medical scientists don't fully understand why. But if you have HIV it is on this group you pin your hopes. You yearn to be among the lucky who will never fall ill. My closest family and friends ardently shared these hopes. After three years of utter solitude, remaining silent while feelings of shame and fear churned inside, in 1990 I had managed to start speaking with my closest relatives, friends and colleagues about my HIV.
By now I was a judge. Becoming a judge had been a lifelong ideal. Now we had started on the road to democracy, with a Constitution that included all South Africans equally in the rights it promised. To become a judge would be a fulfilment indeed. But something troubled me deeply when I was interviewed by the Judicial Service Commission (JSC) for the job. Should I publicly state my HIV status?
The question caused me much anguish. I was a vigorous campaigner for rationality and justice in the epidemic, but only a handful of family and close friends knew that I was campaigning for more than just the public issue. I was campaigning also for myself. Were the public, the JSC and [then] president Nelson Mandela not entitled to know that I was living with HIV?
But, if they were, was I ready to deal with the intense public scrutiny that seemed inevitable? In this perplexity, I turned to an important mentor, Arthur Chaskalson. He was the country's most distinguished public-interest lawyer. He had been among the defence lawyers in the Rivonia Trial and from 1979 headed the Legal Resources Centre (LRC). It was the country's first public-interest law firm. It offered free (pro bono) legal services to people oppressed by unjust laws.
Arthur's focus on work was intense, and his commitment to principle profound. These qualities made him a formidably impressive, even severe, man. But he also had a tender side. Those who worked closest with him sometimes saw it. The first time I engaged with it was when I considered confiding in him that I had HIV.
I had to argue the appeal in the Barry McGeary case [he had sued his doctor for revealing his HIV status and had lost the case]. It was hard to fight a trial for a dying client on an unpopular issue before a hostile judge. And I was fighting a cause whose "agent" was coursing through my own bloodstream.
Often, during the tense courtroom confrontations, I wondered how my own HIV was affecting my tactical decisions. Was I unduly sensitive, overfraught?
These reflections took on new intensity after the judge granted us leave to appeal. The stress of the trial, and Barry's death just before final argument, combined with my anguish about my own condition, forced me to think carefully about how to proceed. Did I not need a powerful, experienced senior lawyer to lead me in arguing the case?
I turned to Arthur. He asked for the transcript of the trial and the written legal argument of the appeal. Then Arthur called me in. It was early 1993. Arthur welcomed me into his sparsely yet elegantly furnished office. He invited me to sit at the plain wood table. Then he gave me his answer. He was quite matter of fact, even dismissive. He would not do the appeal.
"Your written argument is fine, Edwin," he said. "You have this in hand … Do it yourself."
I felt severely disappointed, but Arthur was right. My fears did not stem from legal principles or the facts. The law was on our side. My fears stemmed from the virus I was carrying in my blood, and from the dread secret I was carrying in my head. I feared it would spill out in the courtroom in Bloemfontein, as I often feared it might spill out in the wrenching battles of the trial court.
Looking back, I have often wondered why I did not tell Arthur, then, my real reason for wanting to bring him in. Why did I not confide in him? Tell him that I needed his strength and succour and stature not only because he was a brilliant and respected senior lawyer, but [also] because I was scared that, like the plaintiff, I was going to die myself.
I could have told him. For my own ease of mind, I should have told him, and in fact I came close to doing so. I sat at the pale-wooded conference table in his office, with him sitting next to me, earnest and businesslike, and swallowed back the impulse. The internalised stigma that is often the greatest burden of HIV stopped my words.
Arthur was right that we would manage in Bloemfontein. The outcome [in which the appeal was won] confirmed Arthur's assessment. But, 18 months later, when the Bar Society nominated me to become a judge, I knew the time had come. I had to turn to Arthur, not only to confide in him, but [also] to seek his advice.
This is an edited extract from Justice: A Personal Account by Edwin Cameron published by Tafelberg.