The case that stopped the tour: How a group of lawyers stopped the All Blacks from playing in apartheid South Africa
Wednesday, 6 October 2021
The flour bombs and pitch invasions of the 1981 Springbok tour saw hundreds of protestors arrested and brought before the courts. Four years later, it was the Rugby Union’s turn to face the rule of law, when a group of lawyers challenged a decision to send the All Blacks to apartheid South Africa. Edward Gay reports.
A crowd of hundreds braved the Wellington winter, to find out if a group of lawyers had managed to stop the All Blacks touring apartheid South Africa.
Sir Ted Thomas QC was still dressed in his court butterfly bow-tie when he walked out onto the High Court steps on July 13, 1985.
“The cheer was mighty,” says Thomas.
Against a backdrop of protests, civil unrest and political pressure, he and his colleagues had just succeeded in stopping the 1985 All Blacks tour of apartheid South Africa.
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Thomas acknowledges that public opposition had set the stage. “We were indebted to the protesters.”
The team assembles
Four years on from the trauma of the 1981 Springbok tour, the New Zealand Rugby Football Union announced the All Blacks would tour apartheid South Africa.
Despite unanimous opposition from Parliament, and widespread protest action, the union was adamant the tour would go ahead.
Thomas, who went on to become a Justice of the Court of Appeal, held meetings of lawyers, determined to find some way of mounting a legal challenge to stop the tour.
Rodney Hansen QC was one of those who attended the meetings. A partner at law firm Simpson Grierson, Hansen would go on to become a High Court judge.
Like Thomas, Hansen had taken part in anti-tour marches in 1981. Hansen had also been part of a group of lawyers who had worked for free representing some of the 1500 protestors who were charged as a result of the civil unrest.
Hansen agreed to be the instructing solicitor. None of his fellow partners stood in the way, despite one being a senior rugby administrator.
Like others up and down the motu (country), Hansen’s stance on the tour caused deep divisions in his personal life. His father-in-law had been an All Black in 1937-1938 and was friends with union administrators.
“I suppose in a sense it was embarrassing for him, that his son-in-law should have done this,” reflects Hansen. “That created divisions that took some time to repair.”
The legal team assembled was formidable.
Thomas was senior counsel. Later at trial his juniors would be Sian Elias (the future Dame and Chief Justice), John Marshall QC, and Thomas’ son Simon, the “dogsbody” who later went into sports management, holding such positions as chief financial officer for football’s governing body FIFA. Everyone worked for free.
It was not the first time the courts had been used to challenge sporting contact with South Africa.
An attempt to stop the 1970 All Blacks tour used a legal writ dating back to the English Renaissance . The writ, called ‘ne exeat regno’, was used by the English monarch to stop a person from leaving the realm in times of an emergency. It proved unsuccessful in 20th century New Zealand.
Then, in 1981, Bishop Brian Ashby brought a case seeking judicial review of the decision to grant visas to the Springboks. The case was dismissed by the Court of Appeal.
‘It just seemed so wrong’
Initially the 1985 case was prepared on technical grounds, arguing the decision to tour should have been made at a general union meeting, as opposed to by the union’s council.
Then another idea filtered through. Why not challenge the union’s decision based on its own constitution?
The suggestion came from Kevin Hague of the protest group, Halt All Racist Tours. Hague went on to become a Green Party MP, but in 1985 he had not long been out of student politics.
He says while serving as president of the Auckland University Students Association several “irksome members” had challenged association decisions using its own founding document.
Hague suggested a similar strategy could be used against the Rugby Union by targeting its constitutional objectives to “promote, foster and develop” the game and to act in “the interests of rugby”.
Hansen and Thomas went with it.
They argued that rather than enhance rugby, the tour would tarnish the national game that was still recovering from 1981, when parents took their children out of rugby and some teachers refused to coach the game at school level.
“For at least two or three weeks the proceedings sat on the corner of my desk,” recalls Thomas. “We were scouring for plaintiffs.”
Thomas and Hansen needed someone who was prepared to put their name to the legal action.
They approached provincial unions, then rugby clubs, before looking for individual players. And not just any player; they wanted a player who was a lawyer and aware of the potential risks.
“The challenge was then to find a lawyer, who was a member of a rugby club, who was sympathetic and who was prepared to stick their neck out,” says Hansen.
Owners of two such necks stepped forward.
Lawyer Paddy Finnigan was coaching a University of Auckland rugby team at the time.
“It just seemed so wrong for the tour to be taking place,” says Finnigan. “I thought how selfish it was for a small group to hold the nation to ransom politically when it was so obvious around the world that the apartheid regime was horrible.”
Lawyer Phil Recordon, now a District Court judge, was the other to add his name to the case.
He had only just returned from playing club rugby in France and Tahiti with his French wife, and was playing social rugby for Eastern Bays in Auckland.
“As soon as we filed our proceedings, and there was publicity, about half the guys said they wouldn’t play if I was playing,” recalls Recordon. “They thought that I was anti-rugby; they couldn’t see that you could love rugby and hate what was going on over there and that this could be a way of helping.”
Rather than “disrupt the team”, Recordon moved to another club.
Not a case of ‘busybodies, cranks or other mischief-makers’.
The union was successful in its bid to have the case struck out at the High Court in Auckland.
It argued that its council had the right to decide who the All Blacks should play and where.
The High Court ruled that while clubs could have brought the case, Finnegan and Recordon were not themselves affiliated with the union.
The ruling was taken to the Court of Appeal, which overturned the decision in part. While the court agreed the union’s council had the right to make the decision, it ruled Finnigan and Recordon could bring their case and said the players were linked to the union by a “chain of contracts”.
It found there was a case to answer on the question of whether the union had adhered to its responsibilities of promoting and fostering the game.
The Court of Appeal observed many New Zealanders believed touring South Africa could seriously affect the country’s international relations and that Finnigan and Recordon should not “be dismissed as mere busybodies, cranks or other mischief-makers”.
In framing its decision, the Court of Appeal harked back to the 1981 tour when many protesters, “normally law-abiding citizens”, had been subjected to the rule of law.
“It is now no less appropriate that the lawfulness of the union’s decision under its own constitution to arrange the proposed tour should be open to test in the courts.”
The Court of Appeal sent the case back to the High Court. The trial would go ahead.
Thomas recalls hearing protest leader John Minto being interviewed on the radio, saying “it was now up to the lawyers” to stop the tour.
Stresses at home
The trial at the High Court in Wellington began on July 8, just nine days before the All Blacks were due to fly to South Africa.
It attracted wall-to-wall media coverage.
On the first day Recordon was tapped on the shoulder by Elias and told his wife had given birth in Auckland.
His new baby daughter required surgery and Recordon flew home most nights to be with his family.
There were other pressures also. The Recordon family had been getting death threats and even faeces in the post.
Things got worse when two days into the hearing, agents of the French Government bombed the Rainbow Warrior in Auckland.
Hospital authorities moved Recordon’s French wife into the basement of National Women’s Hospital as a safety precaution.
“It was intense. I just kept on going, I kept on working,” says Recordon, who decided not to burden Thomas with what was going on in Auckland.
Thomas had no idea. He says most nights a war counsel would be held at his Wellington home to discuss tactics for the following day. Recordon was frequently absent.
“I wasn’t p….. off, but I thought: ’damn it all, Phil, you’ve given your name to it, you may as well give your weight as well’.”
‘Apartheid in tracksuits’
Time was running out. Of the 30 witnesses to be called for Finnigan and Recordon’s side, Justice Maurice Casey only ended up hearing evidence from three – Finnigan, Recordon and Reverend Makhenkesi Arnold Stofile.
The South African Presbyterian minister; anti-Apartheid activist; and rugby administrator, told the court it would be immoral for free people to visit South Africa while the country operated under “a system that stifles freedom for the majority of its citizens.”
“Spare us more bloodshed of our people,” he said.
Stofile said the All Blacks tour was announced just a month after nine protesters were shot dead by South African authorities on the 25th anniversary of the Sharpeville massacre.
“This seemed a blatant insensitivity to our efforts to bring equality and justice to our country.”
Thomas says Stofile’s evidence was compelling. He recalls warning him he could be a “marked man” when he returns home. “He said: ‘Yes I know but what has to be done, has to be done’.”
Stofile paid a heavy price for giving evidence.
On his return to South Africa he faced what civil rights groups called a “show trial” on terrorism charges and was sentenced to 11 years in prison.
Following the end of apartheid Stofile served as sport minister in Nelson Mandela’s government and was later South Africa’s ambassador to Germany.
Speaking of his time as an activist Stofile said: “We always defined sport as apartheid in tracksuits”.
He died in 2012.
‘Re-opening the scars of 1981’
Three days into the trial, it was apparent proceedings would not finish before the All Blacks were due to fly out.
Just six days before the All Blacks were due to depart, Thomas got to his feet and asked for an interim injunction to stop the team departing before the case was decided
His argument hinged on key documents included in boxes of paper from the union, including meeting minutes and letters from rugby fans.
“The documents… showed their prime concern was to beat the protestors,” says Thomas. He says the names of protesters John Minto and Trevor Richards were constantly mentioned in union meeting minutes. “It became an obsession with them.”
Some police officers had also written to the union to say they couldn’t wait to “get their baton onto the heads of the protestors”.
“It wasn’t too difficult to show they were so obsessed in beating the protestors, that they had lost sight of the interests of rugby”.
Speaking to a packed courtroom, Justice Casey said the documents showed an arguable case that the union’s council “shut their eyes” to the potential social damage that could be caused by the tour.
“The 1981 Springbok tour of this country was a disaster both for rugby football and for the community,” he said.
Justice Casey said there was clear public concern that the tour would lead to “re-opening the scars of 1981”.
He granted the interim injunction, grounding the All Blacks until the case had been decided.
Elias recalls looking to the packed public gallery and seeing veteran protester Trevor Richards shouting in victory.
In the following days, the union announced it would not be appealing the decision or proceeding with the tour.
In November the Court of Appeal rejected the union’s last-ditch effort to take the case to the Privy Council in London.
The Court of Appeal said taking the case further would be academic as there was no way the 1985 tour could now go ahead.
It was the last time the Rugby Union would attempt to mount a sanctioned tour of apartheid South Africa.
Protests created climate for legal victory
Everyone on the legal team spoken to by Stuff paid homage to the anti-apartheid protesters.
“If there’d been no protests, we wouldn’t have succeeded,” Thomas says. “They built up the atmosphere for a legal case to succeed. They created the climate.”
Elias says the courts had seen the damage done during the 1981 Springbok Tour.
“They saw the strain that it put on the whole legal system and the respect for the law.”
Looking back, Finnigan suggests some of those who supported the tour were able to stomach the cancellation because the courts had delivered it.
Recordon agrees, but says while some accepted it, others believed the lawyers had “pulled the wool” over the judge’s eyes.
“It made me realise that New Zealanders are basically good people, but equally, a lot of people would do well in Trumpland.”
Recordon lost friends over the case. One well-known former All Black still refuses to play golf with him, despite 35 years passing.
Hansen says the case showed the courts could be effective in bringing social change, and helped restore public confidence.
“The institutions of democracy worked.”