Henry Brown: Fairness, Justice & Humanity (Part II) October 2008

Henry BrownIn late 1970 Henry Brown, then 32, found himself in familiar territory: the security police headquarters in Cape Town. Locked behind bars, he sat down with three security policemen to arrange bail for a client arrested for breaching a banning order which barred him from meeting more than one person at once. ‘As I sat, the three of them were walking round and round,’ Brown recalls, ‘and it was incredibly intimidating.’

‘I’d been in lots of intimidating circumstances before,’ he recalls, ‘but somehow this was different.’ He’d reached a tipping point. He had children aged seven, five and two, and the time had come to get out of South Africa. ‘I thought things would get worse. I thought we were in for an uprising, a revolution. I also felt a bit burned out,’ he says.

Personally and professionally Brown had shouldered weighty responsibilities from an early age, and was vaguely aware that he couldn’t carry on doing so. Aged 17 he joined the law firm of Frank, Bernadt & Joffe, and three years later graduated with the best final examination results in the Cape Province. By that time, and mostly as a result of the civil rights cases he handled, his politics crystallised from being broadly anti-government to sharply and actively radical.

Brown had to grow up fast: aged 18 he was handed a qualified solicitor’s caseload, and by the age of 20 he was representing clients in court. Though the firm handled commercial and family matters, it was his principal – and subsequently partner – Himie Bernadt’s civil rights cases which inspired and motivated Brown.

His arrival at the firm coincided with Apartheid entering a new phase of barbarism. In March 1960 there were mass demonstrations against the Pass Laws which imposed demeaning restrictions on freedom of movement for Africans. Across most of the country the demonstrations went off peacefully. In Sharpville in the Transvaal , 69 Africans were shot dead and another 180 were injured when the police opened fire. Three were killed in a separate incident in Cape Town.

Under this kind of regime, practising law was more than simply an occupation. ‘Those three years [since joining the firm] were a steep learning curve,’ Brown recalls. ‘I had this growing awareness that you could use the law quite powerfully politically. And that’s what we did.’ Brown’s cases over these years had a broader resonance for him: ‘I saw the law as an instrument of redress, a way of helping individuals, and a way of introducing accountability in a system where officials would send people off to bantustans [areas set aside exclusively for blacks] without having to deal with the individuals whose lives were affected. If you only got the occasional remedy,’ he says, ‘some official had to take responsibility for what he or she was doing to some other human being.’ And for nearly 15 years, Brown gave everything to the cause.

It was dangerous yet compelling work, and winning cases was positively intoxicating. Brown still wasn’t qualified when he had what he describes as his ‘first big hit’, the first indication that he, through the law, could force the government to act less contemptuously of its people. In March 1961, during the lead up to the first anniversary of Sharpville, the government declared a nationwide ban on meetings and gatherings of any kind. No more than two people could gather anywhere in the country if they had a common purpose. ‘Going for a drink is a common purpose,’ Brown points out, ‘almost everything is.’ Alongside fellow articled clerk, Neville Rubin, who subsequently became Deputy Director of the International Labour Organisation at the UN in New York, Brown argued that the national ban was illegal and that they should challenge it. It was an ambitious plan: two students seemed an unlikely bet faced with the might of the national government. Eventually though, Brown and Rubin came across a claimant: an MP named Zach de Beer who later became leader of the Progressive Party. They rushed the case to trial, but on the morning the hearing was meant to begin, the government withdrew the ban. Although they had forced a climb-down, Brown and Rubin felt robbed. But the battle wasn’t quite over: when the government refused to pay their costs, Brown and Rubin pursued these and won. It was Brown’s first documented victory over the government. ‘I was all of 21,’ he says, ‘And from that time on, although we weren’t big or powerful we realised that you can use the law as an instrument of change.’

Though young, Brown had become a foot soldier in an ideological conflict from which there was no escape and no respite. Despite the mounting pressure, his practice did bring him into contact with many of the leading figures agitating for change in the country. None, though, made an impression on him like Nelson Mandela. ‘I’m not saying this with hindsight,’ Brown says, ‘when I first met him I remember going home and saying to Elsa [his wife] I’ve met the most extraordinary man.’ Brown continues, ‘You knew even as he sat wearing shorts in prison that he was something special.’ For the second half of the 1960s, while Mandela was jailed in Robben Island, Brown was his prison lawyer. Among Brown’s memorabilia is a letter from Mandela, written from prison in 1966, requesting Brown’s services for a disciplinary hearing. Brown recalls the case clearly: Mandela had been charged with ‘failing to obey a lawful command or laziness.’ Following a tough hearing as to the lawfulness of the command given, they lost the case. Mandela, the authorities concluded, had unreasonably refused to load rocks onto a lorry when commanded to do so. Though Brown thought there were good grounds for appeal they decided against it. The first hearing had been before the prison’s second-in-command who didn’t have the authority to impose a whipping; an appeal would have been before higher authorities, and the consequences of losing again could have resulted in the sentence being increased from six days’ spare diet to a whipping.

Brown took on hundreds of cases -big and small- and became more and more troubled by what he saw. Dealing with victims of the regime day after day set Brown apart from some of his contemporaries whom he says didn’t and couldn’t see what was going on. For one assignment Brown had to fly to a desolate black township in the Eastern Cape to investigate housing conditions. He discovered that one of the major activities there was digging graves for children: ‘How could other people understand the impact of this?’ he asks. By 1971 he was ‘despondent’, and something about the incident at the security police headquarters tipped him over the edge. He had to move somewhere safe, somewhere where he didn’t feel responsible for righting the wrongs of Apartheid South Africa.

Brown imagined he’d, ‘go to London and get a job in a nice little suburban parade and just do conveyancing.’ Almost inevitably, it wasn’t to be. He kept his head down while he re-qualified as an English lawyer with Courts & Co in the West End. But at the same time the firm offered him partnership, Arnold Simanowitz, an old friend from South Africa called him with a tempting proposition.

Shortly afterwards the firm of Simanowitz & Brown opened its doors above a butcher’s shop in Waterloo. Over five years, their small, ‘slightly radical’ firm grew to 17 people, and even opened an office in The Strand. ‘We had some great times and some great people,’ Brown recalls. The firm had a policy of acting for individuals rather than companies, and represented a number of law centres and women’s refuges. But it also acted for a range of interests in South Africa and South West Africa (now Namibia).

Though he can’t sure, Brown thinks it was in the context of acting for the South West Africa People’s Organisation (SWAPO) that his offices were broken into by South African security police. Other clients took Brown directly into the world he thought he’d left behind in South Africa. One client, the Geneva-based International University Exchange Fund (IUEF) raised money to fund student study and legal cases, and was a proscribed organisation in South Africa. Brown used to meet regularly with them in Geneva and work out legal ways to get money into the country. He was always met at Geneva airport by former student radical Craig Williamson who had been out of South Africa for about ten years. Williamson became Brown’s ‘link man.’

In 1980, Brown was shocked to read in the newspaper that Williamson was in fact a major in the security police and had been exposed as a spy. Subsequently, Williamson has been linked to a series of state-sponsored overseas bombings, burglaries, kidnappings, assassinations and propaganda. It is also alleged that he was syphoning off IUEF funds to establish a dirty tricks operation in Pretoria known as ‘Long Reach’. ‘For years I never went back to SA; I went back once in 17 years’, says Brown. ‘I was really nervous, even though I hadn’t done anything illegal. I just had this vision of Craig Williamson waiting for me at the terminal.’

Shortly afterwards, for different reasons, Arnold Simanowitz wanted to move on, and the firm desperately needed to find a merger partner. Brown seized the challenge, and, he recalls, had a merger arranged within an hour and half of talking to Simanowitz. In short order he and some colleagues joined Birkbeck Montagu’s, where partners Martin Bayer and Bill Frankel were a major force in South African legal politics. The firm’s clients included the likes of the South African Defence and Aid Fund. Post-merger, though Brown maintained links with some South African clients, his work was becoming increasingly mainstream. He was however unusual in the respect that he practised both family law as well as more general civil and commercial law. ‘I had at least four or five 40% items in my practice,’ he says.

From this vantage point he began looking critically at the system and concluded that there must be something better.

Henry BrownBrown was most troubled by what he saw in family law. ‘At that time, conciliation was only marginally used. Lawyers dealt with money and in a relatively small number of cases children’s issues were dealt with in conciliation by counsellors. My thinking in 1984 was why don’t we have a system where we have a family lawyer who trains as a mediator, and a counsellor, or therapist, who trains as a mediator and work together as a team on all separation and divorce issues? Between them they could handle everything.’

To his surprise, Brown met with reservations from all sides. Some social workers and counsellors initially felt that lawyers were trying to ‘get in on everything’, and some family lawyers took the view that ‘this is very interesting, but we should only monitor what conciliators do with children, not conciliate ourselves.’ Unperturbed, Brown and his colleague Jack Bleiman went to New York and trained with mediation maestro John Haynes in New York. With these ideas in mind, Brown and prominent family mediator Lisa Parkinson, alongside Diana Parker (recently chairman of leading family firm Withers LLP), John Cornwell (founder of the Solicitors Family Law Association), Felicity White and Jack Bleiman, co-founded the Family Mediators Association (FMA). A co-mediation model was adopted which still survives. ’23 years on, that dual model still survives and I’m rather proud of that,’ says Brown.

From then on, Brown threw himself into trying to win over the sceptics. Although the Law Society was initally concerned about law mediators ‘acting for both sides’, they realised that this wasn’t in fact a problem, and were supportive of the FMA, providing £5,000 in initial grant funding.

Some years later, Brown and Felicity White set up the mediation training and practice programme for the Solicitors Family Law Association (now called Resolution).

Brown also began using mediation techniques in the commercial sphere and in 1989, with Arthur Marriott (who was later to become the first solicitor QC) attempted to set up a mediation/arbitration institute. They needed the support of 20 big firms, but simply couldn’t get it and were forced to abandon the idea.

By this time, though, others were thinking the same way, and enthusiasm for commercial mediation picked up some 18 months later when Eileen Carroll set up CEDR and brought Karl Mackie onboard. Brown, with Eileen, Karl, David Miles, and Nicholas Pryor set up CEDR’s first faculty. Brown began to get the feeling that mediation would ‘catch like wildfire.’ Some twenty-odd years later, Brown, the civil rights firebrand turned conciliator is philosophical about mediation’s slow ascent. Like many involved with mediation in the 1980s, he’s gratified with its successes and frustrated with it on a number of fronts. The slow pace of its acceptance, is a particular frustration, as is what he calls ‘process inflexibility’ evident ‘particularly but not exclusively in the family field,’ he says.

In 2006, Brown formally retired, and no longer seeks mediation appointments. Nevertheless, he can’t quite let it go and handles a few disputes a year. His commitment to the cause, however, remains undimmed and his energies at present are devoted to writing. A revised edition of Brown and Marriott’s ADR Principles and Practice is underway, and with Lawrence Kershen QC he plans a book exploring the psychology of professional relationships.

Brown’s journey from pugnacious civil rights champion to ADR evangelical might appear an incongruous one. It’s not something that troubles Brown, however. ‘If it’s inconsistent, so be it,’ he says, ‘If it’s anomalous, well, life is complex.’ Brown sees a single, clear path through all of his career: ‘I don’t feel there’s a inconsistency between helping people find solutions to difficult concepts of all kinds, and having a deeply held sense of fairness, justice and humanity.’