By Craig Stephen
Opinion - The bloody street battles, the flour bombs on the pitch, and the invading protesters had the desired effect: to upset and disrupt the infamous 1981 Springboks tour, and to highlight the racism of apartheid.
Springbok tour protesters in Hamilton, 1981. Photo: National Library
But the tour was completed and some might say that was an even greater victory.
Four years after that infamous tour, with the apartheid system in South Africa remaining belligerent, a follow-up tour between the All Blacks and their fiercest rivals was scheduled to begin in July in defiance of the international sporting boycott of South Africa. It wouldn't go ahead, but it wasn't stopped on the streets or on the pitch, but in lawyers' meeting rooms and the courthouse.
It may have lacked the romance and drama of the street fighters battling injustice in 1981, but it was effective.
On 17 April 1985, the New Zealand Rugby Union announced that a tour of South Africa would go ahead "in the interests of rugby" with the disclaimer that it was not in any way an endorsement of apartheid.
That was disputed by tour opponents. But as Kevin Hague, then the Halt All Racist Tours (HART) education officer, noted it was difficult to organise protests against the tour when the 'enemy' wasn't going to be in town.
"Even in '81 prior to the Springboks arriving it was quite hard (to mobilise). In late 1980 after the Union issued the invitation to South Africa to send a team we probably mustered about 20 people. So to get from there to the thousands of people on the streets at the end of the tour it actually needed them to be in the country to provide that focus. But in 1985 we didn't have that."
Soon after, in the offices of the Auckland District Law Society, Ted Thomas QC - an anti-tour protester in 1981 - chaired a meeting of about 30 practitioners. The legal professionals agreed to form a working group to look at ways of challenging the Union's decision.
It wouldn't be easy - lawyers had failed to stop the 1970 All Blacks tour of South Africa so Thomas and co needed a different strategy.
Initial scouring of the NZRU's own constitution found nothing they could argue against, but then Rodney Hansen QC suggested that one part of the constitution left the Union open.
"He had read the Rugby Union's constitution and read out the provision that they have to act in accordance with the best interests of rugby in New Zealand. He said we could allege that they had failed to do that. At that time I thought the ground was hopeless kite-flying stuff, but it was included in the statement of claim," Thomas said.
The move was supported by anti-tour campaigners but it also had the support of some in the media such as veteran rugby reporter Phil Gifford.
"I agree 100 percent with them, it would've been damaging for rugby. The other thing that would've happened would be that if they toured in '85 I guarantee that images of '81 would be back on television. There would've been protest marches and the anti-tour organisations would have been far better organised. It would have revived the whole festering mess of the '81 tour," he said.
Having found an achilles heel, the working group then had to find a way to take the case to court, but without anyone directly affected by the potential tour they'd hit an early stumbling block. They needed to find someone who was. But none of the provincial unions were willing to take the case on and the All Blacks were due to jet out in just two months.
Eventually, they found Paddy Finnigan, an Auckland lawyer and former player at university level, and crucially a member of the Auckland University Rugby Club, where he was a coach. Tenuous as it was, the link would have to suffice.
Finnigan put his doubts about being the public face of anti-tour campaign aside. As insurance the working group sought another lawyer and Philip Recordon, who had played several years in France and defended some of the protesters arrested in 1981, had no hesitation in being the second plaintiff.
The pair lodged the claim in the Wellington High Court on 20 May 1985, and the case became Finnigan and New Zealand Rugby Football Union.
It was heard in the court on 6 June and Chief Justice Sir Ronald Davison sided with the Union in finding Finnigan and Recordon had no genuine contract with the body.
The case had floundered already, but there's a repechage system in the form of the Court of Appeal. And there, the five judges, headed by Justice Robin Cooke, were unanimous in overturning Justice Davison's decision, saying that the plaintiffs did have a contract with the Union through their membership of clubs affiliated to the Auckland Rugby Union, which was part of the national body. But the judges went further, stating that the decision was important to the future of rugby as the national sport. Justice Cooke noted that the decision affected New Zealand as a whole and not just the New Zealand Rugby Union.
The case had one final twist. The High Court would now hear the case in July, just weeks before the All Blacks were due to fly out.
The Union's court documents were delivered to Ted Thomas and working group member Sian Elias in a restaurant in Wellington.
"I can recollect reading the documents - and I said 'Sian, I think we've got them'," said Thomas. He had realised that the Union had fallen into what he regarded as a siege mentality.
"Their main concern was fighting John Minto and the protest movement, they weren't going to lose. They never once asked about rugby, what will be the impact of a tour have on rugby, what will happen in South Africa, how will that affect the people back here."
It was apparent that a decision might not be made before the team flew out, so Thomas lodged an interim injunction to stop the tour until the case could be resolved.
On a Saturday morning, Justice Maurice Casey told a packed court that there was a strong case to say that the tour would not be good for the game in New Zealand and accordingly contrary to the Rugby Union's constitution. The interim injunction was granted to a "mighty roar" as Thomas described it from those waiting outside the court.
The decision stopped everything. While the Court of Appeal would have been able to hear it the following week the Rugby Union felt the tour couldn't go ahead "for practical reasons".
In legal terms the Finnigan case has been rated as one of three landmark New Zealand cases and is a staple of law schools.
But in sport terms it has had wider significance, ending New Zealand rugby contacts with South Africa until apartheid was dismantled.
* With thanks to US-based New Zealand lawyer Sam Bookman for his assistance. To hear the interviews in full go to the Law Foundation's YouTube page and go to Episode 1.
