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CHAPTER FOUR

Early Political Cases

As Arthur prepared for and began his legal practice, South Africa was caught up in immense and painful political changes. We have touched on some of these already, but it is time to make the political context in which Arthur found himself more plain. The story is elaborate but its basic outlines are straightforward. With its electoral victory in 1948, the Afrikaner-based National Party took over government power, and it set about turning South Africa’s long-standing policies and practices of racial discrimination into systematic and absolute impositions of white supremacy. Black South Africans, like some of their white counterparts, had long sought to block such moves in the courts, but now their response was to turn to increasingly militant protest. Nelson Mandela and others led the ANC’s non-violent defiance campaign in 1952, to which the government responded with new legislation sharply increasing the penalties for even non-violent protest. Then, in 1955, the ANC convened the Congress of the People, which adopted the Freedom Charter, a document that became the touchstone of the ANC’s programme for South Africa.

The government’s response this time was the Treason Trial, which began in 1956 with, originally, 156 people facing trial for their lives. The trial ultimately ended in March 1961 after the dismissal of most of the accused, and the acquittal of the few remaining ones – a triumph of defence lawyering and an instance of the capacity of South African courts under apartheid to do justice, although at the same time a tremendous interference with the lives and political work of those who endured this prolonged trial. But by that time at least 69 Africans demonstrating against the requirement that they carry passbooks had been killed by security forces in the Sharpeville massacre of 21 March 1960; the government had declared a state of emergency and, a month later, the ANC and the breakaway Pan Africanist Congress (PAC) had been banned; and both these groups (and others) were turning away from non-violence towards sabotage and guerrilla activity.

Meanwhile Arthur began to take political cases. So far as is known, he did not take part in the Treason Trial defence, though his friend Denis Kuny notes that many people assisted in this case behind the scenes, and Arthur may have been one of them.¹ He himself recalled that he had reached a firm decision, right at the start of his practice, that he would make himself available for such cases. That was important; even though in theory advocates were obliged to take any paying case that was offered to them and for which they had available time, in practice attorneys seeking advocates for political trials surely looked for those who had made clear their willingness to handle such matters.

Nevertheless it is one thing to be willing to take political cases, and another to actually take them. Here, as in so much of Arthur’s life, personal ties seem to have made a difference. Arthur was very good friends with Denis Kuny, who was more bluntly political than Arthur, and with Denis Kuny’s then wife Hillary, who was the local secretary of the Defence and Aid Fund. This body looked for counsel for the accused in political cases, and also channelled funds into the country to cover those counsel’s fees. Both tasks were challenging, the latter especially so when the government had banned the use of foreign funds for this purpose. Hillary looked for advocates to press into service. Her recollection is that young lawyers like Arthur and his good friend Joel Joffe were at this stage not very politically engaged at all – and it was her job to make them so.

It is difficult to draw firm conclusions about the shape of Arthur’s political practice, since we cannot easily determine which cases he took that never made their way to trial or to the full formality of a reported judicial judgment. Even so, the cases we do know about shed a lot of light on the role Arthur was carving out for himself. They reflect that he took a hand in trying to block the National Party’s relentless segregation of South African life, and that, as African protest turned to violent action, he did not hesitate to take up their cause as well – though he insisted on his status as a lawyer rather than a politician in the efforts that he made. The cases reveal Arthur strategising in a test case, while devising a powerful evidentiary strategy in another conflict that would become one of his touchstones in later legal work. They show him prepared to fight, sometimes courteously, sometimes more bluntly. Interestingly, they also point to Arthur’s limitations. These cases mark the beginning, though far from the end, of Arthur’s involvement in politically charged cases as an advocate.

*

R v. Chan King, decided in late 1960, is Arthur’s first reported public interest case. It arose under the Group Areas Act, a dreadful statute under which South Africa’s apartheid rulers sought to impose physical residential segregation on the basis of race on a massive scale. Chan King, referred to in the case as the ‘first accused’, was a man of Chinese descent, who apparently ran a fish and chips shop in a white area. The ‘second accused’, who was the director, or at least ‘a director’ of the company to which the shop was leased, was a white man. The court reports, ‘It is clear on the evidence, the first accused having been kept under observation by a police officer, that the first accused during the greater part of the day was engaged single-handed in serving customers in this shop, the clientele being principally natives. The second accused would merely put in an appearance in the evenings after he had finished work at the railway premises where he was employed in a whole time capacity.’²

The magistrate who first decided the case felt that this arrangement was simply a subterfuge for the Chinese accused to occupy the store – presumably his, under the table – illegally. That decision was appealed to the Transvaal Provincial Division, and the judges there did not adopt the subterfuge theory. Instead they proceeded on more doctrinally modest ground. As to the Chinese accused, the court wrote, ‘It is correctly conceded by Mr Chaskalson for the first accused that there is an onus [a burden of proof] on the first accused to establish his exemption [from the statute] on a balance of probabilities. If the matter is left in dubio [in doubt] it follows that the defence fails.’³

Exemptions were possible, but they were not possible for any ‘charge-hands, executive, professional, technical or administrative employee, manager or supervisor’. Arthur argues that the first accused cannot be a supervisor, because ‘supervising in its primary meaning and ordinary meaning connoted the presence of other persons working under the authority of the one who supervised as supervisor or an overseer, that he had to have somebody to oversee before he could supervise or be a supervisor’. The court agrees that ‘there is much to be said for that argument’, but then dismisses it from consideration on the ground that even if the first accused wasn’t a supervisor, the police evidence is at least sufficient to create doubt as to whether he was a manager – and that doubt is enough to defeat his claim. One suspects that the court’s doubt was enhanced by its observation ‘that the second accused gave evidence to the effect that the first accused really had no responsibility in the business and certainly was not a supervisor but the magistrate found the second accused a very unsatisfactory witness who was not worthy of credence and on the record I have no difficulty in understanding why the magistrate came to that conclusion’.⁴

What about the second accused? The statute made it a crime both for people of the wrong race to occupy an area and for other people to allow them to do so. In this case, given the conviction of the first accused, it was clear that the company to which the fish and chips store was leased had allowed illegal occupation. That was enough to ensnare the second accused, because another section of the statute makes any director of a corporate body that has violated the statute personally guilty as well. ‘In the light of that provision,’ the court writes, ‘Mr Chaskalson found himself unable to pursue the appeal of the second accused on the merits.’⁵

It seems fair to say that this case was very difficult to win. The law was against Arthur’s clients, and the testimony of one of them had made matters worse. The hints, or more than hints, of subterfuge hurt too. How did Arthur come to be in this situation? The last line of the case report suggests an answer. There, as is customary in South African case reports, the last line of the case lists the appellants’ attorney: A. Oshry. This would have been Arthur’s uncle Alec, an attorney in Johannesburg. For a young advocate to have an attorney in the family who sent him cases was no doubt an advantage – and yet I wonder whether it was Arthur who did his uncle a favour in taking this difficult case. I wonder, also, whether Arthur was brought into the case after it had been tried, so unsuccessfully, in the magistrate’s court; Matthew Chaskalson suspects so on the ground that at that stage Alec Oshry would have run cases in the magistrates’ court through his own attorneys’ firm.⁶ That would explain how Arthur came to be saddled with so problematic a case. The case also features an unsuccessful effort by Arthur to obtain an amendment of the grounds of appeal: this too might suggest that Arthur came in not only after the loss in the trial court but after the framing of the grounds for appeal. Yet it is also possible that Arthur took the case, right from the start, with all its problems, because he rightly viewed the entire case, complete with its police surveillance of the mundane operations of a fish and chips shop, as so egregiously unjust.

Certainly Arthur’s next Group Areas Act case had a very different character – though no better an outcome. This was State v. Mosoeu, decided in the Transvaal Supreme Court, on appeal from a conviction before a magistrate, in 1961. Mosoeu’s case, like Chan King’s, arose under the Group Areas Act. Between Mosoeu and Chan King, however, the law had become even worse, because the Appellate Division, then South Africa’s highest court, had given its judicial imprimatur to the enforcement of this statute in Minister of the Interior v. Lockhat and Others. Lockhat answered the question ‘whether the Act empowers the Governor-General-in-Council to discriminate to the extent of partial and unequal treatment to a substantial degree between members of the different [racial] groups’. The court’s answer was in the affirmative, even though the statute did not spell out that it granted such power: ‘The Group Areas Act represents a colossal social experiment and a long term policy. It necessarily involves the movement out of Group Areas of numbers of people throughout the country. Parliament must have envisaged that compulsory population shifts of persons occupying certain areas would inevitably cause disruption and, within the foreseeable future, substantial inequalities.’⁷

Mosoeu came after the profound defeat represented by Lockhat. But it did not arise by accident, out of the impulsive desire of someone subject to the Act to assert his human rights and enter a restaurant reserved for whites. Nor, I think, did the case come to Arthur only after it had already been botched by others. Instead, Mosoeu appears to have been tried on undisputed facts, and those facts were quite carefully choreographed. As the court wrote: ‘It is clear that the police were advised in advance of the intention to enter the restaurant, and it is equally clear that the incident occasioned no alarm or unpleasantness in the restaurant. This was a case brought by the appellant in order to test the law and to ascertain what the law was and not to defy it.’⁸ This finding was important to Mosoeu personally, because it gave the court the power to correct the magistrate’s misjudgment that Mosoeu had engaged in ‘wilful defiance’, and so enabled the court to reduce the sentence from a R60 fine or 60 days’ imprisonment to a R10 fine or 7 days’ imprisonment. This was the only point that Arthur won, but it was an important one.

But for us what is most interesting is the question of who planned this event. Nothing in the court’s opinion directly answers this question, but it is possible to infer the answer nonetheless. The argument Mosoeu made was that the Group Areas Act, despite its seemingly expansive language, did not authorise the making of regulations that would bar Mosoeu’s presence in the restaurant in question. But this was not just any restaurant. Instead, this was a restaurant in a Johannesburg department store. As the court elaborated:

The persons who prepare the food in the kitchens are members of the coloured group as are the waiters. Members of the native and coloured groups form a substantial percentage of the shopping public in the different departments of the store where they intermingle freely with members of the white group. The store employs a number of native servants who are provided with meals in a special canteen on the fourth floor of the premises … The evidence also revealed that although in the larger urban cities in the country it was possible for a member of the native group [such as Mosoeu] to obtain a meal at places provided legally for that purpose (though not without difficulty), it was not possible for him to obtain such a meal in the many smaller towns and villages throughout the country.⁹

Using these facts, Arthur tried to argue that this exercise of the broad powers of the Group Areas Act was too broad, so broad as to be unreasonable and unlawful. The argument didn’t prevail, though the court did pause to say that his ‘argument on behalf of the appellant … was a pleasure to hear’ (and then obviously felt obliged to add ‘as was the argument of Mr Moodie on behalf of the State’).¹⁰ Despite this praise for Arthur’s eloquence, the court was satisfied that the unfairness imposed by the government’s action was simply the ‘kind of discrimination … envisaged in the Act in regard to the different controlled and group areas throughout the country’.¹¹ It’s not surprising that Arthur lost; really, after the Appellate Division’s decision in Lockhat, that had to be the likely result. But not every restaurant features the same set of characteristics as this one, and not every effort to test the law is carried out with the same precision as this one. Mosoeu’s case featured these elements, I think, because a lawyer – surely Arthur – had been consulted at the planning stage. This case seems to be Arthur’s first test case, designed and carried out twenty years before he would go into the test case business with the founding of the Legal Resources Centre.

*

Arthur was involved in a much more dramatically political case in 1963. This case, his first extended political trial – which also became the first political case that he argued before the country’s highest court, the Appellate Division – was State v. Napoleon Letsoko and Four Others. It was tried in Johannesburg, in the Witwatersrand Local Division of the Supreme Court of South Africa, beginning in June 1963, and generated a 1600-page transcript and record. Arthur led the defence, with his friend Joel Joffe as his junior. The five accused were charged with sabotage for conspiring, as part of the Pan Africanist Congress (PAC), to burn buildings in downtown Johannesburg, though they were apprehended before they (or whoever was truly behind these events) could cause severe damage. In the end, all five of the accused were convicted at trial; since they did not testify or offer other evidence on the substance of the charges, the case turned primarily on a ‘trial within the trial’ addressing the issue of whether the confessions four of the accused had given were voluntary. As part of this trial within the trial, Arthur would proffer the testimony of twenty to thirty other people who had also, he submitted, been arrested, held in a single group cell along with the five who were ultimately charged, and individually taken out to be questioned and beaten. It appears that Arthur and Joel’s first accomplishment was to get access to these others and stop the torture with which the police were building their case.¹²

But Arthur took the case on appeal, and there he succeeded in having two of the five convictions overturned. That in itself was a major achievement, but the implications of the case went well beyond the fate of these five men. In Letsoko Arthur was able to establish on appeal the proposition that evidence of a routine method of abusive interrogation used against others involved in a particular investigation was relevant and hence admissible to show that that method had in fact been used against specific individuals who were swept up in the same investigation.

In the trial court, Arthur had sought to lead evidence from ‘20 to 30 other Bantu, who had been arrested on this charge, to testify to their treatment and assaults at the hands of the sabotage squad’. When Arthur first made this proffer, the counsel for the state responded, ‘My lord, I don’t like these political statements,’ and then repeated that he didn’t like ‘the political savour’. Arthur responded quite passionately, and in terms that seem to sum up the work he would do over more than three decades of challenging apartheid’s injustices in court:

My lord, I don’t like that – it is not political and my learned friend must not say so. It is not a political assertion; it’s got nothing to do with politics and I advised my learned friend beforehand of the nature of the Defence in case he didn’t want it to be aired in Court, and he should know in advance. My learned friend is quite wrong to say it is a political assertion. My function here, my lord, is not that of a politician, my function here is to defend these Accused to the best of my ability.¹³

This was not the only moment in the trial when Arthur felt he needed to defend his own position in the case. Later in the trial within the trial, a senior officer named Van Wyk asserted that the other men who had been arrested and interrogated had been making statements until Arthur became their advocate. Arthur was outraged, and pressed to cross-examine Van Wyk further on what Arthur took to be an implication of impropriety. He said to the court: ‘I would have thought that your lordship and my learned friend [the prosecutor] would have taken very seriously a statement by a policeman that I, as counsel, had influenced people, as a result of which he could not continue with the prosecution. I would have thought I would be entitled to pursue that, if for no other reason.’¹⁴

The trial judge clearly felt that this was a side issue, and one on which further cross-examination of this particular witness could not be conclusive, but Arthur was still incensed. He said, explicitly:

Does your lordship rule that I may not put the question?

BY THE COURT: Put the question!

CROSS-EXAMINATION BY MR CHASKALSON (CONTINUED): I put it to you that the reason why the case was withdrawn against the other 32 persons was that without the police statements of the arrested persons there was no evidence against them?

BY THE COURT: I rule that question out of order.¹⁵

Clearly Arthur cared deeply about his professional reputation, and reacted when he thought it was at stake. But the intensity of Arthur’s reaction, testing the trial judge’s patience quite acutely, perhaps suggests something more as well – that in this trial Arthur (and Joel Joffe) felt, in the back of their minds, that they themselves were at any moment potentially under scrutiny themselves. The witness might turn in a flash into the accuser.

In any case the trial court rejected Arthur’s proffered witnesses. But the Appellate Division concluded that the trial court had erred, and also concluded that it was possible that if the excluded testimony had been heard and taken into account, the confessions by the accused would have been excluded as involuntary. (The court commented that the accused ‘were unimpressive witnesses in their testimony of assaults’, but also observed that ‘certain trenchant criticisms can also be levelled against some of the police officers as witnesses, as [the state’s counsel] was constrained to agree.’¹⁶) That in turn meant that now the confessions had to be excluded from consideration in the case against the accused. The result was that one of the five accused was acquitted, on the ground that without his confession the evidence against him was insufficient. Meanwhile, another accused, who had never confessed, was also acquitted, the Appellate Division revisiting the evidence against him and finding it also to be legally insufficient.

To be sure, this was not a complete victory. The remaining three accused had been sentenced to 17, 20 and 20 years of imprisonment respectively, and now their convictions had been upheld. Arthur also appealed against these sentences, and the court here too was impressed by Arthur’s argument. (The court also mentioned the trial judge’s statement that the lawyers ‘had left no stone unturned’ on their clients’ behalf.¹⁷) Appeal Judge Neville Holmes wrote that ‘In the present case one is deeply conscious of Mr Chaskalson’s submissions to the effect that these are young men who apparently fell prey to inflammatory speeches of discontent and criminal design; that, as it transpired, no great damage was done; and that, if the sentences stand, they will be paying a grievously heavy price for their brief incursion into the field of sabotage.’ It is worth saying that this is hardly a political defence – and that it stands in sharp contrast to the defence that Arthur and his fellow counsel would help the ANC leaders present in the Rivonia trial then only some months in the future. Perhaps Arthur had not yet thought through the implications of representing committed revolutionaries in court; or perhaps his clients – who seem to have been more followers than leaders – did not seek a political defence but instead hoped merely for any viable defence that could be made on their behalf. In any event, Arthur’s point did not prevail. ‘All this is unhappily true;’ Judge Holmes continued, ‘but it is not the whole picture. The conspiracy was an evil one; they put their minds or hands to deeds of pitiless wickedness, reckless of the property or lives of others; and it is no thanks to them that the kindled fire did not become a raging conflagration in the centre of Johannesburg.’¹⁸

It is clear from the court’s ultimate resolution of the case that its decision in favour of the accused on the relevancy to their case of the evidence of abusive interrogation methods, used on people who weren’t ultimately put on trial, was not motivated by any kind of easy sympathy for the accused. Moreover, the relevancy issue was an important point for more than just this one case – important enough that Arthur would say, many years later, that his Legal Resources Centre colleague Geoff Budlender believed that Arthur’s entire practice at the LRC was based on two cases, of which this was one. Letsoko offered a way to prove damaging facts about the course of apartheid justice, despite the absence of direct proof; it affirmed that the context – what had happened, demonstrably, to others in parallel circumstances – could be probative as well.

This was certainly a victory for Arthur as a crafter of persuasive legal argument, but it was not only that. The force of Arthur’s legal position surely was enhanced by the evidence he was able to bring to bear that police coercion had in fact taken place: that made the court’s ruling less a matter of abstract theory than of painful and compelling fact. The evidence Arthur brought to bear consisted in part of the testimony of the accused in the case. But that evidence was bound to be – and it was – contradicted by the police, and so Arthur’s victory on the facts was also a victory for him as a cross-examiner. Judge Holmes, on behalf of the Appellate Division, described the ‘concerted investigational modus operandi’ that the defence argued had been used – featuring incommunicado detention, violations of the ‘Judges’ Rules’, and the accused and the other suspects being ‘individually taken out of the cell, by day and sometimes by night, to another room where they were rigorously interrogated and were assaulted’. As Holmes put it, ‘Reading the testimony of those appellants who had confessed, with the evidence elicited from certain of the police witnesses in cross-examination, it can be said that there were not insubstantial indications that the foregoing was the modus operandi, save that the appellants’ accounts of assaults were disbelieved by the trial Court and the police denials were accepted.’¹⁹ Or, to put the point more bluntly, Arthur did not convince the trial judge, but he did (partially) persuade the Appellate Division. Because of that, it is worth looking in some detail at the transcript of the case, for the picture it gives us of Arthur, as a young lawyer, taking on the witnesses for the state.

Let us begin with a point that has little directly to do with the content of Arthur’s questioning. This point is that while the police witnesses all testified in Afrikaans, Arthur almost always cross-examined them in English. Each witness’s cross-examination would begin with Arthur’s asking the witness if he would be comfortable proceeding this way, and with Arthur’s reminding the witness that if he wanted an interpreter, one would be provided. Arthur’s reason was straightforward: his Afrikaans wasn’t good enough for him to put his questions as he wished to in the language the police preferred to use. Some of them, it’s clear, were quite comfortable in English, but no doubt insisted on testifying in Afrikaans in part as an expression of Afrikaner authority and identity and in part to add to Arthur’s burdens. Arthur seems never to have been comfortable in Afrikaans, though he may have grown more fluent over time: twenty-five years later, he would tell me that when he had an Afrikaans-speaking witness coming up in court the next day, he always brushed up on his Afrikaans.

Why didn’t Arthur speak better Afrikaans? One possibility is that he made a conscious decision to use Afrikaans as little as possible, precisely in order to challenge the expression of Afrikaner authority implied by its use. Another is a matter of culture, somewhat less dramatic than the first explanation, though it may ultimately stem from much the same impulse: my impression over the years is that English-speaking white South Africans were less likely to be fluent in Afrikaans than Afrikaans-speaking white South Africans were to be fluent in English. The cultural and political gap between these two groups of white South Africans in the apartheid years was deeply rooted, and English speakers had both a limited need and a limited opportunity to use Afrikaans in their daily lives.

In any event, Arthur set out to cross-examine (with his friend Joel Joffe, who was junior to Arthur in the case, occasionally handling a witness). My impression from scanning much of the transcript is that as a general matter counsel for the accused had very little to go on – they had received few documents in pre-trial discovery, and the case on the confessions essentially came down to which set of claims, those of the accused or those of their interrogators, the trial judge believed. Nor did they have much time. Arthur was instructed to appear for the accused, effective 4 June 1963, and despite Joel Joffe’s motion, made the day before Arthur formally joined the case, for a three-week postponement, the trial judge granted only three days; trial began on 6 June 1963. When he encountered surprise testimony from one witness, he had to struggle to persuade the judge to give him an hour and a half over the lunch break in which to consult with his clients, before beginning his cross-examination. So the task they faced was to find, and find very quickly, ways to demonstrate that the testimony of the police was simply unbelievable.

The case may also have been a blunt introduction for Arthur and Joel to the injustices of the apartheid system. These, of course, they knew as a general matter already; they were in the case because of their willingness to handle political matters. But it is possible that the frenzied response of the police to this attempted arson attack on downtown Johannesburg took the police to new levels of brutality, and in due course to new levels of perjury as they sought to cover up what they had done. At times Arthur seems simply amazed at what the police say. At one point, for example, Arthur is cross-examining a warrant officer named Weyers, who acknowledges that he was in court at an earlier bail hearing during which allegations were made that the people seeking bail had been assaulted.²⁰ Arthur asks:

What did you think when you heard about that allegation? – Weyers: I didn’t do anything.²¹

That is what I find so difficult to understand. It is such a serious charge, why didn’t you do anything to investigate? – Weyers: If they had any complaints of assault they would have reported this at [the police station at] Marshall Square.

Arthur then asks, five more times, why Weyers chose to wait for a complaint rather than to initiate an investigation, but Weyers is unshaken. Finally Arthur says:

I still find it difficult but I leave your answer because there is a possible explanation, and perhaps I should ask you to deal with it, and that is that you knew there had been assaults? – Weyers: I deny this.²²

Similarly, though in a less obviously fraught context, when Detective Constable Els claims to have spent several days questioning arrested suspects but to have reported absolutely nothing about his results to his colleagues, Arthur says: ‘It seems such an extraordinary procedure to me, Mr Els, surely you must have at least made some report to somebody about what you were doing during this period?’²³ But Els responds, ‘I did not, Your Honour.’

One more example may be the most egregious. Arthur, reacting to the supposed success in interrogation of Lieutenant Theunis Jacobus Swanepoel, who acknowledged having been the target of multiple assault complaints in the past, puts a sceptical question to him: ‘Alright, now you have remarkable success with prisoners don’t you Lt Swanepoel?’ Swanepoel parries, ‘I don’t know what you mean by “remarkable”.’ Arthur makes his point more explicit: ‘Everybody seems to take one look at you and start giving you information?’ Swanepoel treats the question as the set-up line for a joke, and answers: ‘I don’t know, perhaps they like my face!’²⁴

This was relatively early in Swanepoel’s notorious career. A few years later, in a trial of 37 Namibians charged with terrorism for their resistance to South Africa’s rule over what was then called South West Africa, the attorney for the accused, Joel Carlson, described Swanepoel’s testimony as demonstrating the ‘defence team’s impotence in the face of police power … With tremendous arrogance, he dispensed with the formalities, swore himself in, dismissed the role of the judge’s registrar, and proceeded with his evidence. He made it clear that he was in control of the proceedings.’ Then Swanepoel did something reminiscent of his joking response to Arthur’s cross-examination, but more flagrant:

After beginning his testimony, he suddenly turned to the judge and asked to be permitted to have a private word with the prosecutor. This was highly irregular. ‘It is a matter of state security,’ said he half-smiling. The judge consented helplessly although he clearly resented this man who toyed with the court’s authority. Swanepoel left the witness box, had a word in the prosecutor’s ear, both men smiled, and then he returned to the witness box.²⁵

Perhaps his sense of omnipotence had grown over the intervening years.

One other striking moment from Swanepoel’s career took place even before the Letsoko case was over. Arthur cross-examined Swanepoel on 20 June 1963. On 11 August 1963 Swanepoel was brought in to try to force the truth out of AnnMarie Wolpe, whom the police (correctly) suspected of having assisted her husband Harold and others to escape from jail. The police had just raided the farmhouse at Rivonia, and were in the process of tearing apart much of the ANC’s underground network. Wolpe and three others, however, succeeded in bribing a jail guard and escaping. That left AnnMarie Wolpe exposed to arrest, which followed quickly, as did interrogation. Glenn Frankel describes Swanepoel’s role:

[AnnMarie] could see the thick swelling of veins in his forehead and saliva forming in the corners of his mouth. He fired off jagged bursts of obscenities. Then he took the arms of her chair and shook it as he talked. His partner, who looked like a junior version of him, ringed his hands around AnnMarie’s throat and left them poised within inches of her skin. But they did not touch her. The old rules – no violence to white women – still applied.

Then as suddenly as they had arrived, they stormed out of the room. Swanepoel had one last parting shot for her. ‘I’m going to get them. I’m going to fucking kill them.’²⁶

In Letsoko, some disturbing things took place even in the courtroom. At one point family members were barred from using empty seating, until Arthur brought the situation to the attention of the judge in open court. Near the very end of the trial, Michael Maimane, the second accused – a man whose emotional difficulties were such that his counsel had successfully moved for him to be evaluated at a mental health facility – is described by the transcript as ‘refus[ing] to have the handcuffs removed from his hands’ when he arrived in court. After an adjournment to permit Arthur to consult with his client, Arthur reported back that ‘apparently, my lord, the difficulty was a physical one and the handcuffs couldn’t be removed but during the period a locksmith was found who was able to undo the lock – the handcuffs have now been removed and the accused is in Court. They were very tightly fixed on his arm and I think that was probably the difficulty.’²⁷

A remarkable thing happens, however, as witness follows witness. Together with Joel Joffe, Arthur seems to have approached his problem with the basic idea that if he forced the police to tell him the details of what they had done with the witnesses, they would inevitably wind up in embarrassment. (‘What a tangled web we weave …’) The theory was a good one, though it had a flaw which the trial court exploited – it was possible, at least in principle, that the police witnesses’ confusion was not a result of evasion. The police, as the trial court emphasises, were new to sabotage investigations, and their inexperience could have led to disorganisation.²⁸ The Appellate Division evidently took a less sympathetic view, but the trial judge was prepared to forgive a lot without inferring any improper motive on the part of the police witnesses. Whatever the judge’s response, however, it appears that the police, for their part, began to realise that any detail of their activity they let slip might lead them into trouble. And so officers under cross-examination began denying so much activity that their denials themselves became incredible. Arthur told Lieutenant Van Wyk that a subordinate officer, Sergeant Ferreira, ‘said that he did not know whether the persons that he had questioned had been questioned by others’. Van Wyk replied that ‘This is ridiculous.’²⁹ Detective Constable Els spends several days in the midst of a high-pressure investigation interrogating suspects but reporting nothing of his activities to his colleagues. Arthur asks:

You just carried on independently all by yourself without getting any information of value and without reporting to anybody? – Els: This is correct.

But then the persons whom you questioned could quite easily be questioned again the next day by somebody else? – Els: This could have been so, Your Honour.

And you could be questioning people who had been questioned by other persons? – Els: This is completely correct.³⁰

Another police witness, Constable Trijtsmann, denied that he had taken statements from the suspects. Then it turned out, unmistakably – his name was on the papers – that he had taken at least one. This led Arthur to ask why he had been so reluctant to acknowledge having done so. Trijtsmann answers that this was his first time working on such a case, and taking statements in a case like this is very complicated. A few pages later, Arthur asks why Trijtsmann was taking statements in the first place. Trijtsmann says this wasn’t part of his ordinary work, but also says it wasn’t ‘by accident’. Perhaps he was asked to help? He can’t recall. Arthur continues: ‘Will you take a statement without being asked to take a statement?’ Trijtsmann replied: ‘Well, for my own interest I will, Your Honour.’³¹ Confusion reigns.

Still another, Constable Vermeulen, was said by the first accused, Napoleon Letsoko, to have escorted him to the magistrate, before whom Letsoko was to make a statement. Statements made before a magistrate had more legal weight than those attested to only by interrogating officers, but the process posed a challenge to the security police, because the witness, while speaking with the magistrate, was temporarily beyond the control of the police. One way to deal with this problem was to remind the accused of the danger he faced once he was back in police hands, and Letsoko said that Vermeulen had in fact threatened him in this way as they made their way from the cells to the magistrate’s office.³² Trying to head off this charge, Vermeulen at one point denies speaking with Letsoko at all while taking him to the magistrate. Then he acknowledges talking with him, but insists he didn’t discuss the trip to the magistrate. In fact he denies even giving Letsoko directions as they walked. Arthur is incredulous:

And when you got there didn’t you tell him we must go in here … this is where the Magistrate is? – Vermeulen: No, I took him directly to Room 401 … I mean you didn’t drag him along the street behind you did you? – Vermeulen: No, I didn’t.

He had to walk alongside you? – Vermeulen: That’s right.

And he had to know where you were going? – Vermeulen: Well, I took him, this isn’t for him …

Yes but you had to tell him where to go didn’t you – Vermeulen: No, I was with him, Your Honour, it wasn’t necessary for me to tell him where he must go.

How did he know where to turn to the left? – Vermeulen: I walked with him.

And when you turned to the left he had to follow? – Vermeulen: Yes.

And you didn’t say to him: We are turning left here? – Vermeulen: No, I didn’t.³³

I have the impression that Arthur becomes blunter as the trial goes on. For example, when Officer Els admits that he could have had contact with other witnesses – despite having earlier asserted on direct examination that he did not – Arthur asks him for an explanation. Els says that he thought the prosecutor was only asking him whether he had contact with other witnesses at the same time that he was taking one witness’s statement. Arthur responds:

And that is why you gave the answer which you did? – Els: It is.

Are you being serious, Mr Els – are you being serious when you give that as your explanation? – Els: This is correct, Your Honour.

Because I shall have to argue to His Lordship that that is quite a ridiculous explanation and that it shows that you are an unreliable witness – is there any other explanation you can give? – Els: This is all that I can say.³⁴

That’s pretty blunt, and it may reflect that Arthur had grown weary of the officers’ lies.

Since Arthur was clearly capable of bluntness, we might ask why he was not always so blunt. The clearest example of his not adopting a confrontational tone may be in his approach to ‘putting’ an accusation to a witness. South African rules of cross-examination require that the lawyer seeking to prove an assertion must at some point explicitly ‘put’ that assertion to the witness and give the witness the opportunity to deny and refute it directly. One can imagine moments of great forensic drama, as an advocate righteously proclaims, ‘I put it to you, sir, that you beat my client and forced him to sign a false confession.’ Arthur does not do this, though there were many moments when he could have. Instead, he tends to put points to witnesses much more gently, as in this passage where he is probing Warrant Officer Weyers’s explanation of the reasons why Napoleon Letsoko was so helpful to the police when they didn’t have much evidence with which to pressure him into cooperating:

So although there was at that stage no direct evidence against him, he became helpful – that is so isn’t it? – [Weyers]: This is correct.

And you can’t give any explanation as to why this happened? – [Weyers]: No, Your Honour.

You see accused No. 1 says that the reason why he pointed out people and gave statements was because he had been assaulted? – [Weyers]: I deny any assault on him.

Are you speaking of yourself only? – [Weyers]: Yes, I did not assault him. You didn’t assault him. Because he says that you did assault him? – [Weyers]: I deny this.³⁵

Perhaps Arthur’s seeming reluctance to say flatly, or to proclaim aggressively, the points he is putting to Weyers is an expression of his personal desire to treat each person with courtesy, a disposition that only prolonged police evasions could defeat. But it is also possible that his hesitation was always strategic. As Arthur gently put assertions on his clients’ behalf to the police, perhaps he hoped that they would not be as wary of his questions as logic said they should be – and that this would leave room for his devastating logic to sweep the ground from underneath them.

In all of this, Arthur fought, and fought hard, for his clients. No one watching the trial could have doubted Arthur’s commitment to his clients’ defence. It is striking, though, that in the course of the trial lawyers for both sides, and the judge, address African witnesses by their first names. For example, in his judgment in the case, the trial judge refers at one point to ‘Samson’ (Samson Radebe, an African) and then two lines later to ‘Middleton’ (Leonard Middleton, a white).³⁶ When Joel questions Napoleon Letsoko on direct examination, his first question begins, ‘Napoleon, you are accused No. 1 in this case …?’ Similarly, in the course of his cross-examination of a state witness named Samson Radebe, Arthur at one point says, ‘All right. Tell me, Samson, did the police say what would happen if you gave evidence here?’ Perhaps this was strategic – Arthur and Joel Joffe may have felt that using these witnesses’ first names in one way or another was more likely to elicit their cooperation than referring to them as ‘Mr Letsoko’ or ‘Mr Radebe’. (At another point Arthur, questioning a white witness who has used the word ‘boy’ to refer to blacks, refers to ‘these two boys’; presumably his reason for doing so was to avoid a tangential clash with the witness.) But I think it is more likely inadvertent – that is, this is the behaviour of young white men still emerging from an upbringing in which addressing African adults by their first names would have been taken for granted. Arthur and his friend Joel Joffe were still relatively new to the practice of law; perhaps in a sense they were even newer, long ago in 1963, to the practice of egalitarianism.³⁷

It is also important to place these moments in the context of the trial and the behaviour of the prosecuting counsel. The original prosecutor, Masters, says to the second accused, Michael Maimane, who has forgotten the name of the movie that he says he saw at a theatre on the crucial evening for the case, ‘You must be more stupid than I put to you in the beginning …’³⁸ When Masters withdrew from the trial, advocate Krog took over the prosecution. Krog cross-examined the first accused, Napoleon Letsoko, and often quite aggressively. At one point they clash over which language Letsoko speaks better, English or Afrikaans:

Krog: Yes, and your Afrikaans is very equivalent to your English? – Letsoko: I cannot say.

Krog: Well which of the two languages do you speak better? – Letsoko: Well in the office where I worked mostly in English and there only English was used.

Krog: Napoleon, once again, please don’t waste the Court’s time, I didn’t ask you what language you speak in the office, I asked you whether your Afrikaans was up to the same standard as your English? – Letsoko: I think I am better in English, my lord.

Krog: But you have a good knowledge of Afrikaans? – Letsoko: I have. Krog: You see it has taken me 3, 4 questions to get one answer out of you.³⁹

Even Arthur, the most polite of courtroom lawyers, is capable of sharp impatience directed against a witness. But it is hard not to read the hostile personal tone of this particular passage as being, fundamentally, about race.

Because of an illness among the police witnesses, and because of the sheer bulk of this case, it ran for quite a long time. Proceedings began on 3 June 1963; after conviction, the accused were granted leave to appeal on 7 November 1963. Well before this trial ended, Arthur would join the Rivonia defence team; the police raid on Rivonia took place on 11 July 1963, and the lawyers who would represent the accused had assembled by late September of that year.⁴⁰ That case would be tried to judgment, and much in Arthur’s life would change, before he would argue the Letsoko appeal in September 1964.