LEGAL HERO: Geoff Budlender, a raconteur and mensch whose work in human rights ‘is bigger than Mount Kilimanjaro’

LEGAL HERO: Geoff Budlender, a raconteur and mensch whose work in human rights ‘is bigger than Mount Kilimanjaro’

2021-12-02 11:37:00 PM

LEGAL HERO: Geoff Budlender, a raconteur and mensch whose work in human rights ‘is bigger than Mount Kilimanjaro’

The famed lawyer’s cases range from the abolishment of the death penalty in South Africa to the countrywide roll-out of antiretroviral medication.

“I mean, it was a nine- to ten-hour trip,” says Budlender. “A wonderful way to get to know somebody. So Steve had a big influence on my life. He made me understand how different the black experience was from the white experience. His Black Consciousness philosophy was completely persuasive. He opened my mind to a different view of the world.”

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Budlender is speaking toMaverick Citizeninside his office at the Huguenot Chambers, the Cape Bar’s central city hub. Last month, he was awarded the prestigiousInternational Bar Association’s pro bono award for 2021– a mantle which he wears gratefully, but lightly. He deflects congratulations with a smile.

While discussing significant moments and landmark cases from his past – these include the abolishment of the death penalty in South Africa and the countrywide roll-out of antiretroviral medication – Budlender, in typical fashion, shuns the limelight.Colleagues describe Budlender as a raconteur and a mensch, and as a humble man, a humility probably well captured in his comment: “We always toned down our rhetoric, and were never shrill.”

This was him elaborating on South Africa’s Legal Resources Centre (LRC), which he co-founded in 1979, and its dealings with a perplexed apartheid regime. The LRC represented vulnerable people for free, often in high-impact cases against the government. It continues this work today.

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At 72, Budlender’s current pro bono work includes cases on arms being exported from South Africa to the Middle East, and the government’s failure to provide meals to schoolchildren during the Covid-19 epidemic.The chairperson of the South African Human Rights Commission, Professor Bongani Majola’s voice is heartfelt as he pays tribute to Budlender.

“I’m worried about underselling Geoff,” says Majola. “Geoff is a consummate human rights defender. He is very passionate about human rights. You know, with Geoff, when there was a problem, he saw more of a solution than a challenge. And nothing would deter or discourage him from going on; fighting on, giving it everything that he had. His work in human rights, it’s bigger than Mount Kilimanjaro.”

Budlender recruited Majola to work at the LRC in 1996. Majola adds that Budlender has been a mentor to scores of young human rights lawyers in South Africa.In Budlender’s office, a large window looks on to Table Mountain. “How lucky are we to work here?” he says. Up ahead, sunlight glints off Parliament’s iconic 120 Plein Street high-rise building.

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Budlender pauses, his eyes shining, too.“Let me tell you a story about Steve Biko,” he says. “So, Steve and I, we were on this long road trip, during which I was at pains to explain to him how radical I was. How I wasn’t like other white people. Of course, I was putting my best foot forward.

“Then, as we approached Port Elizabeth, I said to him, ‘Where would you like me to drop you off?’ And he said to drop him off at Barney Pityana’s mother’s house, in New Brighton, the oldest African township in Port Elizabeth. I said, ‘fine’. So we drove on for a couple of minutes.

“Then Steve started laughing. I said to him: ‘What are you laughing about?’ And he said that he’s laughing, because I didn’t know how to get to New Brighton, and I didn’t know how to tell him that. And he was absolutely right.”Relating the anecdote, Budlender chuckles. “Indeed, I had no idea. I was over 20, had spent most of my life in Port Elizabeth, but I didn’t know where New Brighton was. And that just goes to show what life had been like. Steve had a marvellous sense of humour, though. He was very entertained by this and we both laughed. And he said, ‘Well, don’t worry, I’ll show you how to get there’.”

Budlender grew up in a comfortable middle-class home in the suburb of Mill Park, where he matriculated at Grey High School.During his first year at the University of Cape Town in 1968, he was among 600 students who occupied the university’s Bremner Building for nine days, following the termination of anthropologist Archie Mafeje’s teaching contract due to pressure from the apartheid government. At the time, he joined the anti-apartheid National Union of South African Students, better known as Nusas.

In 1972, Budlender, originally enrolled to study medicine, changed to a degree in law. “We had a lot of student protests and relied very heavily on lawyers to defend us. And I saw what lawyers could actually do to help people exercise their rights. It grabbed my imagination. It looked like dealing with issues that I cared about. And that’s why I decided to become a lawyer.”

After finishing studying in 1975, Budlender articled at a Johannesburg firm specialising in political defence, working, among others, on the trial of ANC veteran Tokyo Sexwale, who had been charged under the Terrorism Act. In 1978, a trip to the US revealed to him that the law could do more than defend – that it could bring about change.

He recollects: “In America, I saw public interest lawyers fighting for human rights in various kinds of ways, actively engaging with issues and trying to change the law. That seemed to me a really useful thing. And so back in South Africa, a small group of us came together…”

In 1979 Budlender, and fellow prominent lawyers Arthur Chaskalson and Felicia Kentridge founded the LRC.He recalls: “Government was completely perplexed, because here were people working inside the law, with the law, but challenging them through the law, and they didn’t quite know what to do about it.”

Most of the centre’s funding was from outside South Africa. “The funders were fantastic. The first big funder was the Ford Foundation from New York. Then we got money from the Carnegie Corporation in New York, also the Rockefeller Brothers Fund. We got some money from Anglo American, from Harry Oppenheimer.”

Advocate Geoff Budlenderwas awarded the prestigious International Bar Association’s pro bono award for 2021. (Photo: David Harrison)In 1995, the LRC represented two men sentenced to death, in what would become a landmark Constitutional Court judgment. “[Themba] Makwanyane and his co-accused were sentenced to death,” remembers Budlender. “I think they had been in a bank robbery, where people were murdered.

“Wim Trengove was the senior advocate and I was one of the attorneys. It was a tremendous case, a resounding victory. A very important case right at the outset of democracy. Because the Constitution had not directly addressed the question of whether or not there should be a death penalty.”

How did the victory make him feel?“It felt fantastic,” says Budlender. “I had hated the death penalty since I was young, the notion of the state deciding to kill someone. And so it was amazing to be a part of this.”Inside Budlender’s office, a big placard commemorates another landmark case: the 2002 Constitutional Court judgment decreeing that the antiretroviral drug, nevirapine, be made available to HIV-positive pregnant women, following a bitter dispute between activist organisation the Treatment Action Campaign (TAC) and then-president Thabo Mbeki’s Aids-denialist government. Effectively, the case broke Aids denialism’s back, paving the way for antiretrovirals to be widely rolled out across South Africa, ensuring the lives of millions of people were prolonged.

Maverick Citizeneditor and TAC co-founder Mark Heywood recalls himself and fellow TAC founding member Zackie Achmat approaching Budlender to represent them at the time.“Not only was Geoff the best constitutional lawyer in town, he was also a person with the necessary temperament and humility, the sort of quiet passion and commitment to take the case on.”

Majola also reflects on the case: “Geoff did so much work, he even approached the makers of nevirapine, a German manufacturer, who then offered to give the drug to South Africa for free. But there was so much hostility towards the litigation team.“Peter Mokaba, who was then, I think, a deputy minister, even bought a newspaper full spread where he said: ‘This is poison that the Legal Resources Centre wants to give to our people.’ So the case went to court; the High Court in Pretoria. And the court found against government, which then promptly appealed directly to the Constitutional Court.”

Heywood adds: “Look, I still think it’s probably the most important case that the Constitutional Court has ever dealt with. It’s certainly the most important case if you measure its impact on lives saved. Today we have 5½ million people who are on antiretroviral treatment and who remain well and alive as a consequence.”

Heywood points out Budlender’s manner of stepping back, providing a platform for his clients to fight for their own cause.Budlender responds: “There’s a tendency for lawyers to push themselves as if it’s their case. And I think that’s wrong, in principle. I also think it’s destructive because people have to fight for their own rights. They shouldn’t be disempowered by lawyers taking over. For example, in the TAC case, the clients were in charge, they were dictating the strategy. And they knew much more than the lawyers did about what had to be done, because this was their daily lives. We were just lawyers.”

Budlender lives in Claremont, Cape Town, with his wife, sociologist Dr Aninka Claassens, of UCT’s law faculty. He has four children, and four grandchildren.With humour, he recalls courting Claassens in the rural village of Driefontein: “It was in the former Eastern Transvaal, there was this community called Driefontein that had been threatened with forced removal. I was the lawyer representing them, and she had started work for the Black Sash, which took her there. So I ended up pursuing her around the village of Driefontein…”

Does he envision an ideal society where public interest law would no longer be necessary?“I think not,” says Budlender. “I’m not aware of any place in the world where it’s not necessary, where the political system is so perfect that everybody has what they need.

“Fundamentally, it’s about people’s basic needs. Because everywhere, governments interfere with people’s rights, corporations interfere with people’s rights. And they need protection.”

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