“We were not welcomed by the police, but I must give the doctors [for the state] some credit; they told the police that the family representatives had a right to an independent evaluation and that the forensic experts provided by counsel should stay,” says George Bizos, who has been a human rights lawyer for nearly 60 years.
The incident, told in Bizos’s neat office in the Legal Resource Centre, bears the hallmarks of the countless tales told by veteran lawyers of their battles during the apartheid era to gain access to the autopsies of their clients to determine the cause of death.
Except that it refers to an incident just two and a half years ago when, on August 16 2012, the police shot into a crowd of protesting miners at Marikana outside Rustenberg, killing 34 and injuring 78.
Film footage, which ran in a seemingly never-ending loop on local and international TV channels that day and the next, showed miners falling on the now famed koppie. Later it would emerge that others were shot out of sight of the media.
“The day after the incident I called my son Damon, a professor of surgery at Donald Gordon medical school, and said: ‘Son, do you have a Gluckman for me, I need a Gluckman’,” says Bizos.
Dr Jonathan Gluckman made a name as a pathologist during the apartheid years for carrying out his work without fear or favour. Among the autopsies he performed was that of Steve Biko who, it was eventually determined, died of a brain haemorrhage while in custody.
“As soon as we got the report, from the pathologists we had sent, on those killed at Marikana, it confirmed our worst fears. There were a significant number of miners shot in the back or the side and a significant number had more than one bullet wound,” says Bizos. “With no less than five people working with me at the Legal Resources Centre, we engaged with a crowd management expert.”
At the Marikana hearing, Bizos — who had long since expressed concern about the growing militarisation of the police after Nelson Mandela stepped down as president — read from a statement made by then safety and security minister Steve Tshwete in 1999: “We are now going to deal with criminals the same way a dog deals with a bone.”
“The South African police and government had convinced him that the police needed to be remilitarised,” says Bizos.
“To get to the end of it, the police asked Judge Ian Farlam, the chairman of the Marikana commission of inquiry, to exonerate the police service.
“After two and half years of evidence and over 5 000 pages of record of evidence given, and the videos and radio messages which clearly showed [police wrongdoing], evidence leaders Geoff Budlender and Matthew Chaskalson uncovered evidence that was hidden — that there was a meeting before Marikana where the police discussed what they planned to do the next day.”
Bizos, deep in contemplation about what he had seen and heard, reaches for his book No One to Blame? In pursuit of justice in South Africa published in 1989, which deals with deaths in detention and the erosion of justice during the apartheid years.
He taps the cover silently for a moment: “The police want us to believe that no one is to blame. Sure, I am sad. There is no basis for this in the country’s future.”
The commission has until March 30 to write up a report and hand it to President Jacob Zuma.
The shootings are just one in a long line of challenges to the principles of the Constitution and the Bill of Rights.
For Bizos (87) a man instrumental in overseeing the drawing up of the interim Constitution, it’s a sadness that the legacy, hailed all over the world, could be under threat.
Leaning forward in his seat to make his point, he says: “I am concerned and consider to be threats to the Constitution those who are asking that there be expropriation of land without compensation, or those who have not taken sufficient steps to bring about the fundamental changes that the Constitution requires them to bring, such as better education for all, equality and the absence of poverty … the fanatics want to bring about changes from both the far left and the far right without regard to the Constitution.”
Speaking at the Farlam commission, he said his client at the hearing was “the South African Constitution”, a point later commented on by Farlam.
Displaying the wry humour that has become his trademark, Bizos says: “This reminds me of a popular Greek joke. A politician looking for votes says: ‘Vote for me and I will give you a house, vote for me and I will build you roads … vote for me and I will build bridges over your rivers.’ Someone in the audience puts up his hand and says: ‘But we have no rivers’, to which the politician says: ‘Vote for me and I will bring you rivers.’ ”
Bizos’s office is covered with pictures of old friends, including founders of the Legal Resources Centre and Constitutional Court Chief Justice Arthur Chaskalson — the father of Matthew Chaskalson — and Nelson Mandela. On a shelf is a picture of his granddaughter AnaSofia, who was a student at the Greek school, Saheti, and is now a university student, he says proudly.
Looking at the picture of Chaskalson as if recalling his words, Bizos recounts the former chief justice’s spirited defence of judicial independence, in response to views expressed by the government that the judiciary was being abused by other factions and was making decisions that impacted on the executive’s role.
“He warned that without a strong judiciary there could not be democracy,” says Bizos.
“I want to say that I am proud of the heads of our courts. Not every judge is perfect all of the time — that would be inhuman — but on the whole I think our judiciary is doing a good job.
“During the apartheid regime there were a small number of judges who would not cower to the will of government, and that number has increased in leaps and bounds since 1994,” he says.
He was encouraged, too, by the number of young lawyers entering the profession who are interested in constitutional law. “I hear gifted young lawyers are asking the large law firms where they have been retained where the constitutional unit is,” he says with pride.
As one of the administrators of Mandela’s will along with Deputy Chief Justice Dikgang Moseneke and Judge President Themba Sangoni, Bizos has found himself unwittingly embroiled in a family dispute about the inheritance of Mandela’s estate and a fight for control. Mandela died on December 5 2013 at the age of 95.
Bizos, clearly distressed by the matter, declines to comment. “Mandela was one of my closest friends and I cannot talk about family matters,” he says.
Bizos has gained a reputation as a moving orator, possibly the result of his birth in Greece, where a good story is always valued, and his love of the poetry and plays from his country of birth.
Asked whether he was aware of any techniques or mannerisms he adopted in court, he recounts a story about a speech made by Archbishop Emeritus Desmond Tutu at his 80th birthday celebrations.
“He said I should have been an actor, and maybe I should have,” he says with a smile. “He said I always turned after I had made an important point to look at the audience behind me. I never took it as a criticism, he loves to joke.
“But what can I do when representing a client but to turn to his family and see if they approve of the point I made.”
Asked what the highlight of his eventful life has been, Bizos says without hesitation that it was being found at 14 by schoolteacher Cecilia Feinstein behind a counter at a Johannesburg café.
She recognised him from a story she had heard recounted about George and his father being rescued from a boat floating off the Greek coast during the Nazi occupation of that country.
They were rescued by a war ship and brought to Durban before making their way to Johannesburg.
“She gave them hell: ‘Why is this boy not in school. I am coming on Monday to fetch him and I want him dressed in his best.’
“I had been out of school for over a year and I could not speak English or Afrikaans but for some reason she believed in me.”
He was enrolled at Athlone High School and eventually completed his law degree at Wits in 1953. But it was not the medical degree his father had wanted.
“When I got my first doctorate at Natal University they asked me if there was anyone I wanted to invite and I said yes, Cecelia Feinstein. She came to the ceremony with her two daughters and in my speech I thanked her publicly for all she had done.
“I said if it was not for her I would now be a wealthy café owner,” he said with a smile.
Bizos admits he has never taken to technology. He does not have a cellphone or a computer, choosing to dictate his autobiography Odyssey to Freedom.
He recounts how Chaskalson convinced him to join the centre in 1990 where he served as counsel to 40 lawyers, making it clear that he was joining as a lawyer.
“I told him that I would come if I did not have to do admin or fund- raising. That job is left to the young man, not yet 40, in the office opposite mine.”
Asked about the long hours he still puts in at the centre and whether he will consider slowing down, he says: “At a funeral today someone asked me when I planned to retire. I said I may retire after Marikana.”