Remembering the Mxenges, who devoted their lives to justice

2014-04-15 00:00

I AM not going to dwell on the tragedy that robbed us of Victoria and Griffiths Mxenge. It is something that is documented in the annals of history. Thanks to the decision of the Constitutional Court in the Citizen 1978 (Pty) Ltd and others vs McBride Case CCT 23/10 [2011] ZACC 11, we are not denied the right to call these henchmen, murderers. We will not be at risk of having to pay damages for defamation, simply because they were granted amnesty by the Truth and Reconciliation Commission.

What I wish to focus on are the ideals for which these struggle icons lived, and for which they were prepared to pay the ultimate price. They lived for justice and freedom, and devoted their lives to achieving a better life for the people they served. To them, justice and freedom were inseparable. We are indebted to them for laying the foundation for the freedom we are enjoying today. They were pioneers in the struggle for freedom, at a time when very few people were prepared to put up their hands and be counted because of the risks involved. It is sad that the couple did not live long enough to see the fruits of their efforts.

I first met Griffiths in the early seventies, when I was seeking placement as an articled clerk. He played a major role in getting me articled to a firm of attorneys. I subsequently met and got to know his wife, Victoria. I got to know the couple closely. It is difficult to speak of the Mxenges and their quest for justice, in the service of the people, without being anecdotal. I remember him walking into my office one afternoon, a big smile on his face, to break the news that Victoria had been admitted to practise as an attorney. In his booming voice, he exclaimed: “KK [referring to me], I will now go all out in the struggle for freedom for my people, now that my wife has qualified, even if they kill me.” The “they” was a reference to the Security Police.

What was clear from those words was his single-minded objective of freeing his people from the shackles of apartheid, even if it meant losing his life. The joy of Victoria qualifying as an attorney and the financial rewards that this would bring to the family were secondary to the opportunity of using the law as an instrument to achieve justice for his people. What was paramount was fighting for freedom.

If we thought that Victoria was any less committed to the struggle, we were mistaken. When Griffiths was killed, Victoria made it known that she was going to continue where her husband left off. She had shown her true mettle even before her husband’s death. When Griffiths was detained for 103 days in the early eighties, it was the most difficult time for her and her family, and his close friends and colleagues. What was of great concern was that people were dying in detention. Victoria kept her family and her husband’s practice together during that difficult time. She was not afraid to take on the state, if need be. I recall that during Griffiths’ detention she suspected or received information that he was being assaulted. The terrorism legislation under which he was held at the time made access to him impossible. I was looking after Griffiths’ practice in his absence, but Victoria was in effect running the office. At her behest, we brought an urgent application in the then Supreme Court in Durban for an order for a mandatory interdict directing a local magistrate to visit Griffiths in detention, examine him for any injuries, and report back to the court. The then advocate, Thembile Skweyiya SC, now a justice of the Constitutional Court, was briefed as counsel in the matter and I was his instructing attorney together with Victoria, who was not qualified at that stage. When we got to court, it was a case of fortune favouring the brave because we were allocated a most sympathetic judge, John Didcott, who later became one of the first group of justices of the Constitutional Court. Didcott was reputed to have a listening ear and sympathy for the underdog. He had no hesitation in granting the order in our favour, despite stiff opposition from the state. The appointed magistrate reported back that Griffiths was in good health and had no injuries. We had made our point.

There were two key positives that came out of this exercise. First, the proceedings made it clear to the Security Police to keep their hands off Griffiths and that we would not hesitate to use every avenue open to us in law to fight them off. Second, the litigation showed Victoria to be a woman of courage.

Women face unique challenges in gaining access to justice. The difficulties that women experience in accessing the law are compounded by “cultural practices that undermine the status of women … all of which make women vulnerable” (Access to Justice in Africa and Beyond – Penal Reform International et al). I have no doubt that if Victoria were alive today, she would be taking a stand against such issues and especially violence against women, which is an evil that has bedevilled our society.

In their fight for justice and freedom, the Mxenges were ahead of their time. They laid the foundations for the freedom we enjoy today. It is due to them that we have a Constitution that entrenches the right of anyone to have access to the courts and to have his or her dispute resolved in a court of law or tribunal.

Griffiths and Victoria saw it as their duty to ensure that our people had unimpeded access to the courts. This they did on occasion without asking for a fee from their clients. Their practice was primarily concerned with public-interest cases such a political cases, cases involving eviction of people from their homes, and labour cases involving dismissals from employment.

Political cases formed the core of Griffiths’ practice, during which he represented political activists. These were not ordinary criminals. They were decent individuals who found themselves on the wrong side of the law of the time. Their only sin in the eyes of the oppressor was that they sought freedom and justice. Most of them were avowed members of the ANC, which was banned at the time. Their uniqueness lay in the fact they did not deny the acts they were alleged to have committed, but justified them in the name of the struggle for the liberation of their people. For them, loyalty to the cause was above all else. You could not advance a defence that showed any sign of betraying the struggle. They were proud to go to jail, if need be, for what they believed to be right. Griffiths and Victoria were suitably qualified to represent them because they were birds of a feather.

Victoria and Griffiths gave their all in the struggle for the liberation of the people of the country. Their drive, toughness, tenacity and indomitable spirit for the struggle for freedom is indicative of their greatness and the esteem in which they are held postmortem. It has been said: “It is not what you take, but what you leave behind that defines greatness.” We define Victoria and Griffiths in terms of what they left behind for us to reflect on and we will forever be grateful for what they left for us and what we shared with them. There are some notable jurists who were trained by them as articled clerks and candidate attorneys. Among these are Bulelani Ngcuka, who later became the first national director of public prosecutions; the late Patrick Maqubela, who died while an acting judge of Western Cape High Court; and Ray Zondo, who distinguished himself as a labour lawyer, now a justice of the Constitutional Court. Let me not forget the late Lillian Gugu Baqwa, who was articled to Griffiths and later worked for the firm as a professional assistant. Engaging her was a bold step at a time when attorneys shied away from choosing women to do articles with them. Such was the contribution made by the Mxenges in empowering people. We are richer for it.

• Khayelihle Kenneth Mthiyane is the deputy president of the Supreme Court of Appeal. This is an edited version of the speech Access to Justice: Reflections on the Contribution made by Victoria and Griffiths Mxenge to the Promotion of Access to Justice, which he gave at the 12th Victoria and Griffiths Mxenge Memorial Lecture at the University of KZN on April 10.

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