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CHAPTER NINE

After Rivonia: Arthur’s Practice

For almost a year, in 1963–4, Arthur worked constantly on the Rivonia defence. When that case came to an end, the world in which Arthur now lived was one in which the state had transmuted the law ever more thoroughly into a source of oppression – supplemented, all too often, with brutality and torture as well. The political movements opposed to apartheid were in the process of being beaten into what appeared, at least, to be submission. And so the question faced Arthur: what would he do?

He and Lorraine might have chosen to leave the country. Many people did, including Joel and Vanetta Joffe as well as others, less political, such as Arthur’s university friends Sydney Lipworth and Mark Weinberg. Arthur would say, years later, that he did not disapprove of others leaving, and that he felt that it wasn’t possible to impose political strictures on life choices of this sort. But Arthur and Lorraine did not leave. They would consider leaving, when Lorraine grew very worried about their two sons facing conscription into apartheid’s army. Arthur, always practical, responded that he did not want to leave, but that if she felt they must, they would, but he said that their departure would have to be planned, so that he could move his practice from South Africa to Britain. And once the matter was put on this plane of practicality, Lorraine’s anxiety eased.

He and Lorraine might also have chosen that he should step back from taking political cases. It would not have been strange if Arthur had found the intensity of the Rivonia trial so draining that in its aftermath he would move away from this kind of work. Certainly life in South Africa would have been simpler had he done so. But again this was not the course he followed. While he did not embrace political cases as the sum and substance of his practice – as his close friend George Bizos did – he made himself a part of many of the most important and politically charged legal controversies of his day. No one I have spoken with describes him as having pulled back; rather, it seems more accurate to say that, having found a new level of political commitment through the Rivonia trial, he now pressed forward with such work. Indeed, Arthur’s own political engagement may have been deepening in these years, as some of the matters in which he became involved suggest.

The decision to stay in South Africa was not, of course, just a decision about work. It was also a decision about life. Arthur and Lorraine would soon have two sons; Matthew was born in 1963, shortly before the Rivonia trial, as we’ve seen, and his younger brother Jerome would arrive in 1967. Arthur and Lorraine would make a home for themselves and their sons and seek to lead happy and rewarding lives, in the midst of apartheid.

In these years Arthur took on a wide range of political cases, which meant that he represented many, perhaps most, of the various groups still seeking to challenge apartheid in South Africa. As we look at these cases, we will be examining Arthur’s history, but also in some measure the history of the country. At the same time, it is important to keep in mind that these political cases were by no means all of Arthur’s work in these years, nor even all of the work of political significance that he undertook. We will look at both his surprisingly political Bar activity and at the commercial, non-political side of his practice in the latter part of this chapter.

The cases we are about to examine, political and non-political, make up a disparate group. That surely reflects Arthur’s tremendous ability to master the facts and law of one case after another. Each, undoubtedly, was significant – at least for its clients, and sometimes more broadly – and probably most also presented lawyering challenges that were interesting and challenging. They were all worth doing. They were also hard-fought; in one case, an attorney’s house was fire-bombed; in another, Arthur clashed sharply with Percy Yutar, his Rivonia antagonist.

But it is fair to say, as well, that during these years Arthur’s work had no one substantive focus. I think he himself felt that, and that this recognition was part of what led him to the next step in his career, the founding of the Legal Resources Centre (LRC) – where it would be possible for Arthur to shape not only his own work but an entire institution towards a focus on challenging the injustices of apartheid. That day would not come until 1979, however, and to understand what Arthur came to achieve we first need to see what he did in the difficult years between the end of the Rivonia trial in 1964 and the founding of the LRC fifteen years later. Let us turn first to the cases in which he represented clients whose offences were non-violent, then to those in which his clients were part of the resistance to the state, and then to Arthur’s decidedly political work as a member of the Bar Council. Then we will see that Arthur’s political work shifted from a part to something closer to the whole of his litigation; and finally we will be in a position to ask why Arthur, initially not focused on any single area of courtroom work, came to concentrate over two full years on handling just two political cases.

*

Arthur undertook several reported cases representing clients charged with non-violent offences. (There may well have been others that Arthur handled, but that weren’t reported in the law books.) Perhaps what stands out most about them – together with the cases in which he represented people who were guerrillas, plain and simple – is that Arthur became involved in a wide range of the political struggles that persisted during the years after Rivonia. The fight to use law against itself had not ended, and Arthur was one of the small number of lawyers who continued it.

*

In S v. Beyleveld and Others, a case that he argued in November 1963 – during the Rivonia trial – Arthur represented three members of the Congress of Democrats (COD) on their appeal to the Supreme Court from the lower, magistrate’s court. The COD was the white organisation of the Congress Alliance; the alliance, led by the African National Congress, which also included Indian and Coloured organisations. Many white Communists joined the Congress of Democrats, and in fact two of the accused in this case, Piet Beyleveld and Ben Turok, were certainly Communists as well as, respectively, president and national secretary of the COD; the third, Eve Hall, was the secretary or regional secretary of the COD.

Their ‘offence’ was to bluntly advocate, and seek to persuade their Johannesburg City Council representatives, that the National Party State President of South Africa, C.R. Swart, was unfit to receive the honour of being voted the freedom of the city. That led to their being charged with committing acts ‘calculated to violate the dignity or injure the reputation of the State President’.¹ Despite deft arguments by Arthur that this statutory language should be interpreted narrowly – arguments the appeal judges congratulated, saying Arthur as counsel had ‘argued the case very ably’² – the court declined to narrow the statute and instead concluded that the word ‘calculated’ did not mean ‘intended’ but merely ‘likely’. Once that decision was made, the case against the accused was hard to refute, and the appeal failed. For their acts, all three were sentenced to fines of R350 or 175 days in prison, and the appeal judges, noting that the maximum sentence provided by the statute was R5,000 or five years in prison, declined to disturb this sentence.

In taking this case, Arthur was representing three very dedicated activists. Eve Hall had already been convicted in 1962 for the offence of writing slogans or pasting posters on public walls, for which she was sentenced to six months’ imprisonment. In 1964 she and her husband were banned and had to leave the country. Ben Turok, who had been one of the accused in the Treason Trial of the late 1950s, was already in prison at the time of S v. Beyleveld, since he had been sentenced to three years’ imprisonment for violation of the Explosives Act in 1962.³ Placed under house arrest after his release from prison, he would flee the country in 1966, but after the end of apartheid he became a member of Parliament as a member of the ANC. Meanwhile, Piet Beyleveld’s fate would be quite different: he folded under interrogation and agreed to become a witness against Bram Fischer in the latter’s criminal trial. Fischer, communicating with Beyleveld through notes smuggled into jail with his laundry, tried to persuade him not to testify, but without success. Sadly, Beyleveld would agree at trial that Fischer had ‘a saint-like quality’, even as he testified against him. Later he would testify for the state in other trials as well.⁴ His online biography says that after the Fischer trial, ‘Beyleveld encountered total ostracism and condemnation. He went to work in his wife’s office services business and faded into obscurity.’⁵

*

Arthur at least twice undertook appeals against censorship cases brought by the state, and in both he was able to persuade the court to adopt interpretations of the sweeping statutes at issue that limited their reach. These cases typified the surprising resilience of common law principles of statutory limitation that operated to constrain the oppressive intentions of legislators – a resilience that was ultimately the basis for the practice of anti-apartheid law. Ironically, Arthur also took, and won, a case limiting free speech on common law grounds; here the law operated, unusually, to protect the speech of an opponent of apartheid. But the most intensively litigated of these cases, in which the record extended over thousands of pages, again dealt with the suppression of speech, and led to the imprisonment of a speaker who had testified about conditions in the prison where he was a warder.

In the first case, SA Magazine Co. (Pty) Ltd v. Publications Control Board, which was reported in 1966, Arthur represented the publisher of a series of magazines said to ‘deprave or corrupt a substantial number of the average readers, and more particularly of the average teenage readers’.⁶ Here Arthur defended a number of publications, including several ‘made up of pages of pictures of female figures’ who were ‘scantily clad’ and whose pictures were ‘calculated to draw attention to their breasts and/or private parts and buttocks’. The trial judge had to decide whether these pictures ‘might have a tendency to deprave or corrupt a substantial number’ of the teenage boys and young men who were their likely viewers. The judge observed

that anything which has a sexual affinity will contribute towards the sexual inquisitiveness of young people and in that way might be said to cause an awakening of the sexual urges in them. I agree, however, with Mr Chaskalson, that such a reaction in normal young readers must be appreciable and in contra-distinction to the normal awakening or development of sexual urges in them.⁷

This decision to recognise that the normal awakening of sexual urges is not depraved or corrupt was not enough, however, to defend the publication of four magazines for which Arthur decided to abandon the appeal – nor a fifth, in which an article suggesting that men could easily hypnotise women and have sex with them was held to be ‘indecent and obscene, and … offensive and harmful to public morals’.⁸

SA Magazine Co. was an anti-apartheid case only in the sense that each assertion of liberty was a challenge to the social power of the state. More than a decade later Arthur would handle a second censorship case, S v. Moroney, which was more directly political. The items in question here were two issues of the Wits Student, publications of the Student Representative Council of the university – and presumably more concerned with politics than with sex. We do not know for certain, however, because of the terms of the statute under which the Wits Student editor was prosecuted. This statute, the Publications Act 42 of 1974, forbade anyone to ‘produce an undesirable publication’ and specified that ‘A notice published in the [Government] Gazette stating that a publication … is in terms of a decision of a committee [appointed from time to time by the Directorate of Publications] undesirable, shall for the purposes of this Act be sufficient proof of the undesirability of that publication or object’.⁹ Based on its reading of this statute, the state contended that the decision of the committee that these two issues of the Wits Student were undesirable was essentially conclusive.

Arthur argued this case in May 1978, when (as we will see) he was also busy with a major terrorism trial. The statutory language seemed forbidding, but Arthur argued that if it meant all that it seemed to say, it would be ‘in conflict … with the fundamental principles of justice as administered by our Courts’. He invoked principles of statutory interpretation, among them the rule that ‘a court will … presume that Parliament does not intend an unreasonable or unjust result’. ¹⁰ The court responded, posing the question whether the statute was ‘intended, as appellant’s counsel [Arthur] argues, as an aid to the State in proof of the fact that an accused had produced an undesirable publication or was it intended to render the committee’s decision conclusive proof of such fact?’ ¹¹ The court accepted Arthur’s view, saying that ‘sufficient proof’ meant prima facie proof, but not ‘conclusive’, irrebuttable proof. Along the way the court had to deal with the fact that the Afrikaans text of the statute – the one signed by the State President and therefore authoritative – seemed closer to declaring the committee’s decision ‘conclusive’.¹² The court decided that it could harmonise the two texts by taking their lowest common denominator: since both agreed that the committee decision amounted at least to prima facie proof, that would be the statute’s meaning. And since the magistrate in the original trial had treated the committee’s decision as conclusive rather than just prima facie evidence, Moroney’s conviction and sentence were set aside.

*

In Wentzel v. SA Yster en Staalbedryfsvereniging; Wentzel v. Blanke Motorwerkersvereniging, Arthur assisted Sydney Kentridge, who by then had taken silk, in representing the prominent liberal advocate Ernie Wentzel, a close friend of Arthur’s who was a leading member of the small group of anti-apartheid lawyers of which both Arthur and Sydney were also part.¹³ Wentzel himself was, like many members of the Liberal Party, a radical opponent of apartheid. He was detained by the government during the 1960 state of emergency following the Sharpeville killings, may have played some part in the re-evaluation of non-violence that the government’s repression triggered, and in 1963 urged the Liberal Party to rename itself as the Socialist Party of South Africa, to reflect its ‘social democratic character’. In 1964, in addition to bringing this defamation case, he was detained again, and this time was interrogated by the security policeman Swanepoel – whom we have encountered before – and suffered a heart attack while in detention.¹⁴

For his efforts Wentzel ‘was subjected to the abuse and vilification that was the lot of the liberal’.¹⁵ But he sought and received damages (R3,200 plus costs – a significant sum) based on a 1963 article in a publication called The SA Worker which, he contended, linked him to Poqo, a militant revolutionary group connected to the Pan Africanist Congress, and portrayed him as someone who approved of murder and violence. The case was argued on 30 November and 2 December 1964 but not decided until 13 March 1967, more than two years after it had been argued. The judgment, which engaged with the complex South African defamation doctrine of animus injuriandi, essentially declared that even if the defendants had no intention to unlawfully defame Wentzel – because their objective was merely the ‘lawful’ one of ‘in large part stopping racial equality in trade unions’ – they had gone well beyond the bounds of legitimate advocacy for this purpose and so they were indeed guilty of defamation.

*

After Bram Fischer was captured, he was convicted in a trial that began in March 1966. Arthur was engaged in another political case, and so could not play a full part in Fischer’s defence; that trial was the case of Johannes Andreas Theron, in which Arthur appeared as a junior counsel, led by a more senior advocate, J.F. Coaker.¹⁶ It’s a measure of the extent of Arthur’s involvement in political cases after Rivonia that this was at least the second time in less than two years that Arthur was engaged in two political trials at the same time.

Theron was a senior warder at the Cinderella prison in Boksburg, and he had done something that outraged the National Party government: he had provided the Rand Daily Mail, the liberal, English-language Johannesburg newspaper, with information about brutal mistreatment of prison inmates, and the paper had published a series of articles based on his testimony. In retaliation, the government launched prosecutions of all the sources for the paper’s prison stories, and of the editor, Laurence Gandar, and the reporter most responsible, Benjamin Pogrund.¹⁷ The trial of Theron was a dramatic affair, full of charges and counter-charges. In his cross-examination of state witnesses, Arthur put to at least two of them that their entire testimony was false.¹⁸

In final arguments at the trial, Arthur clashed with Percy Yutar, the lead prosecutor in the Rivonia case who was prosecuting this action as well. Arthur complained that Yutar was interrupting his argument inappropriately, and at one point commented, ‘I’m afraid my learned friend [Yutar] is again wrong.’ At another moment, Arthur addressed a particular piece of evidence and said, ‘Well, I don’t understand it. Either it didn’t happen or the evidence is deliberately perjured.’¹⁹ But Theron was convicted in the magistrate’s court on nine counts and sentenced to 52 months in prison.

The argument of the appeal in the Supreme Court took seventeen court days. Percy Yutar presented most of the argument for the state. At one point he argued that some of the evidence cited in the defence heads of argument didn’t in fact support the defence position. He disclaimed any intent to say that these mistakes were intentional. ‘On the contrary,’ he was reported to say, ‘he was amazed by the amount of hard work the defence had done, and he was certain that no client could have expected more of counsel.’²⁰ Compliments to the defence from the prosecutor should not necessarily be taken at face value, but Yutar was not wrong about the extent of the effort the defence had made in preparation.

The work of Theron’s counsel can be seen in the 181-page draft of the heads of argument on appeal that they prepared. This document, which was part of Arthur’s papers and which is extensively marked up in his hand, was probably primarily Arthur’s work; junior counsel were typically responsible for working through the details of a case, though few could have worked through them as thoroughly as Arthur did here. The draft parses the record, thousands of pages in length, in great detail. It bluntly and extensively attacks the credibility of the state’s witnesses. It also reflects a striking confidence in the integrity and discipline of the Supreme Court judges who would hear the appeal: quite often the heads of argument state a particular argument and then cite passages from the record without any further explication of what those passages say. It seems that Arthur and his co-counsel were confident that the judges would read and see what the defence counsel saw in these pages. Perhaps they also hoped that as the judges worked through the citations they would make the defence arguments their own in a way that they might not have if more had been spelled out for them.

Nevertheless, the result of these efforts was mixed. On appeal in the Supreme Court five of the nine counts on which Theron had been convicted were overturned, and his sentence reduced from 52 months to 24 (and in effect to 16, because two sentences were concurrent). Not long after this decision, in early December 1967, Theron decided to drop his potential appeal to the Appellate Division and went to prison.²¹

*

Legal struggle also continued on behalf of those who sought to use armed force, and the cases brought again illustrated both the range of efforts by those prepared to fight the state and the intensity of the government’s legal attack on these persistent opponents.

*

The ANC was not the only group to turn to armed struggle in the early 1960s, nor the only group whose members Arthur represented as a result. In addition to the Letsoko case involving the Pan Africanist Congress (see Chapter Four), and the Rivonia trial about the ANC, Arthur also joined the defence team in the case of S v. Hirson and Others, which dealt with the sabotage campaign conducted by the African Resistance Movement (ARM). Many of the ARM’s adherents had been members of the Liberal Party, the last effort by liberals, including whites, to sustain non-racial politics in the face of the National Party government’s repression. As we have seen, Arthur had been a member of the Liberal Party for a short period during his student days, and Arthur and Lorraine were part of the liberal social world, and they knew Baruch Hirson and his family socially. But there is no indication of any kind that Arthur was himself involved with the ARM except as counsel in this case.

Arthur joined his friend David Soggot and another anti-apartheid advocate, Fred Zwarenstein, in this case. Each of them represented a different accused: Soggot represented Baruch Hirson, a Trotskyist; Zwarenstein represented Arthur and Lorraine’s friend Roman Eisenstein; and Arthur represented Hugh Lewin, a Liberal.²² (A fourth accused, Fred Prager, was acquitted.) The trial began in late 1964 and was over by 1 December of that year, almost two months before Bram Fischer would estreat his bail and go underground. The case became notorious because an ARM member, Adrian Leftwich, quickly broken by the state’s interrogation, testified against his friends and colleagues, sealing their fate. Leftwich’s testimony was so damning that after it the accused changed their plea to guilty, in the hope of winning lesser sentences as a result. Baruch Hirson remembered Leftwich as ‘unswerving, mixing lies (where necessary) with truth’.²³

The case in fact was scandalous in another way as well. As Hirson writes:

The defence team was called to the judge’s chambers and asked whether they knew that members of the Special Branch were discussing the case with men who were to be called as witnesses. This had not been observed by our lawyers, and it was a valuable piece of information. At our advocates’ request, witnesses and members of the Special Branch were called to give evidence on whether they had consulted together. Each one denied the imputation, and the case resumed. The one person who knew that they were lying was Judge Bekker.²⁴

This intervention by the Special Branch, and its discovery and revelation by the trial judge, were a blunt – though not unique – departure from the rule of law.

Presumably balancing the impact of Leftwich’s testimony with the revelation by the judge, the lawyers counselled their clients to make statements to the court seeking mitigation – rather than ‘proclaim[ing] a revolutionary message’.²⁵ Roman Eisenstein remains outraged by his lawyer’s blocking him from speaking as he wished.²⁶ But the sentences, which could have been very long, were relatively short – five years for Eisenstein, seven for Lewin, and nine for Hirson. Not surprisingly, Hirson recalls being appalled by a sentence of ‘more than 3000 days, an unimaginable period’, but he remarks that ‘Our lawyers were jubilant, and in retrospect, I see they had cause to be pleased’.²⁷

Hirson’s book also offers an intriguing insight – albeit from a client’s point of view – into the lawyers’ approach to the facts. He writes:

One rule was clear. Both sides would bend and twist the facts to favour their clients. It was not the ‘truth’ that would decide the case but the argument that could stand up to scrutiny in court. It sounded strange, but it was no stranger than the laws that governed the country and, from our vantage point, no more peculiar than the falsehoods we were to hear from the Special Branch. From our point of view as much blame as possible was laid at the door of Rhoda [Prager], long since dead, and of [Denis] Higgs, who had been returned to Zambia as the result of an international outcry over his having been kidnapped.²⁸

He adds that the accused followed the same approach in their post-conviction statements in mitigation.

No doubt this did sound strange, but it does not on the face of it reflect any departure at all from the norms of ethical legal practice. If it is possible to argue that the evidence before the court shows that someone other than the accused is the true wrongdoer, the lawyer for the accused is free – even obliged – to make that argument. Even with a confession from a client, South African rules of ethics provide that counsel ‘may appropriately argue that the evidence offered by the prosecution is insufficient to support a conviction’, though he or she ‘may not … set up an affirmative case which he knows to be inconsistent with the confession’.²⁹ Assuming that the accused here confessed (which Hirson does not directly assert), then if counsel had ‘known’ that some claim they were making amounted to ‘an affirmative case … inconsistent with the confession’, that would have raised ethical questions – but it is unlikely that they ever reached that point.

*

In the mid-1960s, Arthur represented an ANC guerrilla, Joe Gqabi, and others charged similarly with leaving the country to seek military training. Joe Gqabi was a journalist, activist and an ANC guerrilla. In April 1963 he was tried in Pretoria Magistrate’s court on a charge of leaving the country without a permit. Gqabi represented himself at trial, and cross-examined with some passion a police witness who contended that he was a member of the ANC. But that point, however inflammatory, was ultimately irrelevant to whether Gqabi had left the country without a permit, and this he admitted he had done, arguing in an unsworn statement that he left the country in the hope of getting work as a journalist and that he did so without a passport because he ‘believed that the police would not give me a passport’ – a very plausible supposition on his part.³⁰ For this offence Gqabi was sentenced to two years’ imprisonment, the maximum possible; he appealed, was re-sentenced (this time to two years minus time already served), appealed again and lost, despite the assistance of Ernie Wentzel.

Two years later, in May and June 1965 – while Bram Fischer was still underground – Gqabi was tried again in the Transvaal Supreme Court – this time not for leaving the country but for having ‘consented, or attempted, or taken steps to undergo military training which could have been of use in furthering the achievement of the objects of the African National Congress (or the Umkonto we Sizwe)’.³¹ For the state to have divided up its prosecutions in this way was oppressive, but apparently could not be successfully objected to. Gqabi was charged along with three others who had also allegedly been part of the same effort, Henry Makgothi, Samson Padana and Michael Mahlangu. George Bizos and Arthur Chaskalson represented all four of the accused, but the trial court ordered Gqabi’s case separated from that against the other three. Trial against these three went forward, while the state ‘elected … to try Joe Gquabi [sic] on wider allegations at a later stage’.³²

George and Arthur divided the labour of the case: George did the cross-examination of all or almost all the witnesses, while Arthur mastered the law and the facts so as to give the closing argument on behalf of the accused. The trial judge referred to that argument as ‘his able address’,³³ but it did not prevail, and these three accused were all convicted and sentenced to five or six years of imprisonment with hard labour. It seems reasonable to infer that Arthur also drafted the 35-page ‘Application for Special Leave to Appeal and the Making of a Special Entry’, submitted in July 1965 to the Appellate Division after the trial judge had denied similar requests.³⁴ This application laid out a detailed argument to demonstrate the failings of the state’s case.

Meanwhile, Joe Gqabi would go on to be tried not only for seeking military training but for sabotage, and would serve ten years on Robben Island. News coverage confirms that George and Arthur represented Gqabi in this trial.³⁵ They did not prevail, but somewhere in the course of his legal journey, Gqabi came to appreciate Arthur’s legal skill and, as we will see, he would insist on Arthur’s representation the next time he came before the courts, beginning in 1977, in the Pretoria Twelve case, discussed later. Arthur for his part developed ‘the highest regard’ for Gqabi, who would ultimately be shot dead by apartheid security forces while in exile in Zimbabwe in 1981; Arthur ruefully recognised that if he had not secured Gqabi’s acquittal in the Pretoria Twelve trial, Gqabi would have been ‘safe’ in prison.³⁶

*

In the Rivonia trial, Arthur had represented Nelson Mandela and come to greatly admire him. Now Nelson was in prison on Robben Island, but his wife Winnie was blazing her own trail as an outspoken, though sometimes erratic, activist force. Arthur represented her in at least three separate cases.

The first was the most dramatic. The case would be known as S v. Ndou; Samson Ndou was one of Winnie Mandela’s co-accused, and Joel Carlson, their attorney, writes that Ndou ‘had only been chosen as the first defendant so that the name Mandela, which had so often appeared in court, would not now again appear on the court records’.³⁷ Winnie Mandela and 21 others were detained without trial in 1969 – ‘her first major period of detention’. She was brutally interrogated and, according to her biographer Emma Gilbey, she broke.³⁸ That was hardly extraordinary, for the police broke almost everyone.

Meanwhile, something else that was quite extraordinary happened while she was in detention: the state developed a scheme to separate her from Joel Carlson, the dedicated anti-apartheid attorney who had represented her in the past. Instead, an attorney named Mendel Levin, a flawed figure with a background of fraud, secured a power of attorney from her. Carlson reports that she went as far as to write to supporters in England saying that he (Carlson) was ‘not to be trusted’ and that Levin was now the attorney for the accused in the case. Mandela, however, recovered her footing, and when she finally appeared in open court she swiftly dispatched Levin and retained Carlson once again as her attorney. Carlson suspects that the state hoped to use Levin to induce Mandela and her co-accused to accept convictions in return for light sentences – but Mandela was determined to fight the case. Carlson briefed David Soggot, George Bizos and Arthur Chaskalson – whom he described as ‘one of the most brilliant advocates at the Bar’ – for the defence.³⁹ George Bizos recalls that the fact ‘that Arthur Chaskalson and David Soggot were on the case further eased [Nelson] Mandela’s anxieties’; George knew this because he had gone to visit Nelson to discuss the case.⁴⁰

Trial began; the case became known as the ‘Trial of the 22’.⁴¹ With the very first witness, the defence faced a choice: should they try to bring out in cross-examination the torture that the state’s witnesses had been subjected to? Such a step might backfire, if the witnesses – terrified of what might happen to them when they returned to the cells – denied having been tortured. But they decided to try, and were able to extract from a British witness, so terrified that he could scarcely be heard in the courtroom, that he had been forced to stand for 48 hours non-stop while he was interrogated, and had been assaulted by the police as well. Once they had opened the door, defence counsel were able to continue on this course, and they elicited additional testimony about state torture from the state’s own witnesses.⁴²

Late in the year the court adjourned till mid-February. Bizos writes that ‘as our clients remained in custody, Arthur Chaskalson, David Soggot and I visited them regularly to prepare their defence’. But when the case resumed, suddenly and without warning the state moved to withdraw the charges, the trial judge accordingly ordered the accused acquitted – and then the security police returned the accused to detention without trial.⁴³ Their continued detention ‘became quite a major cause célèbre’ and prompted student demonstrations including a march on John Vorster Square, the police headquarters. During these protests Glenn Moss was arrested for the first time; a few years later he would become a client of Arthur’s too.⁴⁴

Over three months later, new charges were filed against almost all of the accused, and against one other person who had no direct connection with the accused or the case against them whatsoever. The state’s hope was that the new indictment would be the basis for restarting the trial, despite the earlier acquittal. By now Arthur was no longer in the case, but his friend and colleague Sydney Kentridge succeeded in demonstrating to the trial judge, through a three-day argument, that principles of double jeopardy (in South African terms, autrefois acquit) required the acquittal of all the original accused.⁴⁵ And then, within a few days, Winnie Mandela and her co-accused were served with banning orders, which broadly speaking ‘meant they could not make any formal plans to meet one or more persons, anywhere at any time, during the next five years’.⁴⁶

Meanwhile, during the trial, there had been one other important development: the home of the attorney, Joel Carlson, was attacked one night with a Molotov cocktail, while his carport and car were shot at. The house did not burn down, but that did not seem to be due to any restraint on the attackers’ part: the Molotov cocktail ‘had been thrown at the study window’ – the study being full of papers – ‘but had hit the stone wall underneath and exploded against it’. Carlson did not realise what had happened till the next morning; then he called George and Arthur and they were soon on the scene. Carlson did not dare to state to the authorities what he was sure was the truth, that the police themselves were behind the attack – because he feared being taken in for questioning by the security police himself. If there was any doubt in the lawyers’ minds about the potential risks they were running, this attack made their situation clear – and fortunately did not result in any injury or loss of life. Carlson’s office would soon be shot up too, and an explosive device sent to him in the mail. Carlson would leave South Africa in 1970, followed soon by his family, and not expecting to return until apartheid ended.⁴⁷ The effort by the Ndou police or prosecution to trick Winnie Mandela into accepting representation by someone who amounted to an impostor, Mendel Levin, was of course a clear breach of the rules of legal practice – but a fire-bombing was even worse.

After the Ndou case, Arthur continued to take cases on Winnie Mandela’s behalf, with George Bizos. She was now banned. Bizos writes that her ‘acquittal only made the authorities more determined to get her behind bars’, and observes that ‘it was virtually impossible for any banned person to live and work without falling foul of the banning order’s many and ambiguous restrictions’.⁴⁸ As one case explained, the ban meant that she could not receive any visitor at her house. But she was arrested after a relative came to her house to pick up a grocery list so that he could shop for her. In S v. Mandela (1972), Arthur succeeded in persuading the Appellate Division that this relative, arriving at the house for this narrow purpose, did not amount to a ‘visitor’, one who would have social intercourse with the people at home. The court – clearly not enamoured of the banning statute – also ruled that another potential ‘visitor’, found hiding in the bedroom, might just as well have been a visitor to Mandela’s sister, with whom she lived, as to Mandela herself, and reached a similar conclusion as to a third person who was also in the house. George Bizos would write that he and Arthur had ‘indulged in a combination of Talmudic and Byzantine hairsplitting’ to establish Mandela’s defence.⁴⁹

The state did not give up, and in 1974 Arthur was back in court, again with George Bizos, on Mandela’s behalf. This time the case grew out of Mandela’s efforts to see her ‘two young daughters’, who were ‘at boarding school in Swaziland’ but came back during the holidays to Johannesburg.⁵⁰ Seeing her daughters was permitted; meeting with someone else was not. The Appellate Division concluded, on the evidence, that she had actually got into the van carrying her daughters, and spent 45 minutes there with not only her daughters but also the driver of the van, the famous photographer Peter Magubane – thus violating her banning order. But it rejected a separate charge, which rested on the notion that the daughters had served as indirect communicators or intermediaries between the driver and Mandela on two other days – that is, they had carried their mother’s message. As Arthur had argued, the court concluded that the charge had rested on direct communication, rather than indirect, and that therefore the conviction could not stand. The court also pointed out: ‘if the matter had been fully investigated upon a proper charge alleging communication between the appellants with the children as intermediaries, it is quite conceivable that it could have transpired that they were acting as principals on their own behalf in requesting Magubane to convey them to various places in town to meet their mother’.⁵¹ Both Mandela and Magubane had been sentenced to a year in prison for this ‘offence’; the Appellate Division concluded that the one conviction it upheld still justified a sentence of six months, which Mandela served.⁵²

Arthur remained involved in Mandela’s legal travails as a trusted adviser to George Bizos. When Mandela came out of prison ‘in April 1975 her banning order had expired and for the first time in thirteen years she was comparatively free’. But during the Soweto uprising – the massive demonstrations starting in June 1976 that marked the return of mass resistance to apartheid in South Africa – Mandela was detained again without trial for more than four months. Then the government, fearing her continued presence in the Johannesburg area, banished her in mid-1977 to Brandfort, a dreary town in the Orange Free State, far from Johannesburg. George Bizos went to see her, and consulted Arthur about whether anything could be done, but ultimately had to tell Nelson Mandela that the answer was no. Winnie would be charged and convicted again for violating her ban, and would ultimately return to Johannesburg in 1985 after her house in Brandfort was petrol-bombed and gutted. She would resist the authorities so adamantly that they gave up their efforts to expel her; Bizos writes that she was ‘effectively unbanning herself’.⁵³

Meanwhile, the State President, P.W. Botha, in 1985 offered to release her husband Nelson Mandela from prison if he agreed not to plan ‘any acts of violence for the furtherance of political objectives’. Winnie Mandela visited Nelson and was now ready to deliver his response – which, Bizos writes, ‘was studied by Arthur Chaskalson and me to ascertain the legal implications’. But for Winnie to deliver her husband’s response might violate her banning order. Bizos recalls Winnie Mandela’s ‘inspired decision to have Nelson’s answer read to thousands of people by his daughter’. He also recalls that ‘from this high point, her lack of judgment progressively diminished her stature and sullied her reputation. For Nelson, her family, the movement and the nation it was a serious embarrassment. For Winnie, it was nothing less than a tragedy.’⁵⁴

For Arthur, though, these moments marked a melding of his responsibilities. To help Winnie Mandela to decide on the strategy by which Nelson would communicate with his people, Arthur needed to give advice that was not just legal but political as well. Arthur had assisted Nelson Mandela in his Rivonia defence, including Nelson’s shaping of his historic speech from the dock, and it is possible that he had similarly aligned himself with his clients’ political aspirations in other cases over the years too. But Arthur may also have been undertaking a level of political engagement here that he had not attained in the intervening years: he himself may have been evolving. His son Matthew believes that Arthur’s politics did not remain fixed, and that instead he developed from someone with a broad liberal disposition against apartheid into someone firmly committed to a social democratic transformation of South Africa. While dating the time of this change is not possible, this moment of advising Winnie Mandela reflects the changes that were under way.

*

In the years following the Rivonia trial, with the ANC’s underground structures inside South Africa largely in disarray, the organisation’s exiled leaders in London began recruiting volunteers there to carry out missions in South Africa. These missions ranged from setting off ‘leaflet bombs’ – which used a very small explosive charge to lift a mass of leaflets up high enough in the air to disperse and distribute them in the area – to more military steps such as the scouting of landing sites for ANC guerrillas arriving by sea. For some years these volunteers escaped detection, but that period came to an end with the arrest of Sean Hosey and Alex and Marie-José Moumbaris in 1972. Hosey recounts that he walked into a trap in South Africa; after that he endured months of brutal interrogation by the security police. He was tried, along with Alex Moumbaris (Marie-José Moumbaris, who performed her undercover work while pregnant, was released after four months’ detention in response to political pressure from France, of which she was a citizen) and four Africans who evidently were among those being infiltrated into South Africa.⁵⁵ Hosey was convicted and sentenced to five years’ imprisonment. He writes that his lawyer, George Bizos, ‘thought it was worth an appeal, but I never held out much hope, and so it proved’.⁵⁶

Arthur, with George Bizos, handled this appeal, S v. Hosey, which was argued and decided in November 1973. The appeal was brought only on Hosey’s behalf, perhaps because the case against the others was even more clear-cut. It was, indeed, a difficult appeal, and despite Arthur’s best efforts it failed. The court’s attitude was foreshadowed by its comments on a charge of which Hosey had actually been acquitted. This was that he had ‘distributed subversive propaganda pamphlets’ in Cape Town in August 1971.⁵⁷ He denied – falsely⁵⁸ – that he had been involved in the leaflet distribution, and the judge who wrote for the Appellate Division commented that his testimony in this regard was ‘most unconvincing’.⁵⁹ Bizos recalls that another member of the court said during the argument of the appeal that Hosey had been lucky to get off on this count.⁶⁰

As to the charge on which Hosey had been convicted, which was that he had attempted to deliver to a terrorist money and falsified documents, it was impossible for Hosey to deny having done so – this was precisely the trap into which he had fallen. Hosey testified, however, that he had not done so with the purpose alleged in the indictment, namely ‘to make war against, and to incite violent revolution in the Republic’. He claimed that he had been told that what he was carrying would go to trade union activists, and there was no evidence that he knew the people he was trying to reach were terrorists. But the court said that the facts made clear that he knew he was acting with an unlawful purpose, and therefore invoked the statutory presumption in the Terrorism Act that ‘the intent underlying his said deliberate act was to endanger the maintenance of law and order in the Republic’. The court also said there was ‘no merit whatsoever’ to Arthur’s argument that Hosey’s actions could not have caused any of the harms identified in the statute – as was required for conviction – because the person to whom he gave the materials was in fact a police agent; as the court said, what Hosey attempted to do was to give the materials to someone who was not an agent at all.⁶¹

Hosey was sentenced to five years’ imprisonment – in Alex Moumbaris’s words, ‘the minimum, what some comrades called a parking ticket’.⁶² The stakes in these cases remained high. Moumbaris, for his part, had received twelve years, but he would not serve his full term, because he and two others succeeded in escaping from prison after seven and a half years of his term.

*

In 1964 the Rivonia trial ended, and Arthur’s full-time engagement in political litigation – though not his part-time and even intense involvement – came to an end as well. Arthur could hardly have been more completely involved in a case than he was in Rivonia, and it seems possible that in the years that followed part of what he did was to restore his energy. His commitment to the political struggle was as strong as ever, but the sheer tasks of handling one case and then another may have been demanding. If they were, then over time he came to meet these responsibilities; by 1975 Arthur was involved in full-time litigation that would underline the political engagement he was now embracing, and that would lead soon to an even more complete involvement, in the creation of the Legal Resources Centre. There were two of these cases, one not involving violence, the other emphatically and undeniably featuring it.

*

In 1975 and 1976 Arthur led the defence team for the ‘NUSAS Five’, five leaders of the National Union of South African Students who were placed on trial for a conspiracy ‘to further the aims and objects of communism, the ANC and SACP’. More specifically, the charges ‘related to calling for the release of political prisoners, encouraging black workers to form trade unions and aspiring to change South Africa into an egalitarian society’.⁶³ The students’ efforts reflected the rise of white student activism directed against apartheid, a development opening another front in the swelling range of opposition to the government. The trial was in progress when the mass demonstrations in Soweto on 16 June 1976 made it clear that the African population of the country had not been subdued. Bizos writes that ‘we soon realized the significance of the trial. If the State made the charges stick, it would close down much political activity that was still permitted. Anyone, for example, urging that political prisoners be released was at risk of being successfully prosecuted just because the ANC had made a similar call.’⁶⁴ Arthur would say in court that ‘if they are going to be found guilty then heaven help this country, because I think it will mean that nobody could say anything at all’.⁶⁵

The NUSAS trial lasted for a year, ‘from date of first court appearance to conclusion on 2 December 1976’.⁶⁶ It was Arthur’s most intensive commitment to a political case since Rivonia and also appears to have marked his return to political cases after some time away from them; the Hosey case had ended two years before this one began. Geoff Budlender, who was then doing his articles of clerkship with the attorney in this case, Raymond Tucker, thinks that Tucker was the person who brought Arthur back to political casework.⁶⁷ Representing five influential figures in the student movement of the day – Glenn Moss, Charles Nupen, Eddie Webster (actually a lecturer rather than a student), Cedric de Beer and Karel Tip – Arthur and his colleagues, George Bizos and Denis Kuny, fought successfully to win acquittals of all of them.

Several points about the trial are important to discuss here. One was the lawyers’ relationship with their clients. It was not inevitable that Arthur would represent the NUSAS accused. Glenn Moss recalls that the accused considered two or three other senior counsel to lead their defence but had objections of one sort or another to them. When Raymond Tucker, the attorney on the case, proposed Arthur’s name, the lawyer who had represented Moss’s family for many years said, ‘He’s just a tax lawyer.’ But George Bizos recommended Arthur, and Tucker spoke very positively about him, and he was briefed.⁶⁸

What Tip felt was that when they met Arthur, he made a tremendous impression – he was calm, confident, reassuring and very empathetic with their cause.⁶⁹ Moss recalled that Arthur approached his clients with a certain reserve – he was their lawyer but not their confidant, and didn’t want to know anything about them that was not part of the trial. At the same time, he remembers Arthur as having a concern and involvement with people, and emotional integrity.⁷⁰ This perception fits with Karel Tip’s recollection that in the trial Arthur was always very supportive at a personal level, and very sensitive to occasions when the clients were troubled, such as the testimony of an undercover police spy who had appeared to be their colleague. He was always there to help the accused stay calm. Over time, Charles Nupen recalled, the accused came to feel, and happily, that their future was in Arthur’s hands.⁷¹ The connections Arthur made with his clients, in this case and others, were not simply expressions of personal interest – it could matter to the case’s progress what the accused were feeling as they testified, for example. But these connections do also seem to reflect the kindness and warmth that many people saw in Arthur at home, now expanded to reach clients as well. James Joyce once said, ‘I never met a bore,’ and Arthur in truth shared a Joycean interest in others as well.⁷²

When it began, the government intended to make the NUSAS Five trial a very visible challenge to the rising student activism. The case was first brought in the Supreme Court – but then, early on, it was transferred to the Regional Magistrate’s Court, a lower court. The top prosecutor, the Deputy Attorney General of the Transvaal, was also replaced by P.B. ‘Flip’ Jacobs, ‘a senior prosecutor with little experience in political matters’. (Jacobs would also take part in the Delmas trial, discussed later; there, late in the case, he and Arthur would speak harshly about each other’s ethics.⁷³) Moreover, the magistrate designated to hear the case, Gert Steyn, ‘was not one of the magistrates usually selected to hear political matters’. Why were these changes made? Michael Lobban suggests that the reason was that the state’s original plan was to call Craig Williamson as a witness. Williamson was a police spy who had infiltrated the ranks of anti-apartheid students. He would go on to play this role for several more years – and apparently the government decided it was not worth blowing his cover at that stage to have his testimony in this case.⁷⁴

Nevertheless, the case of course remained important to the accused, not only because of the potential sentences of imprisonment they faced but also because of their political commitments. The five faced a delicate problem: acquittal was a real possibility, but the more they trumpeted their radical views, the greater the risk that they would be convicted. As Moss writes, ‘This dictated a defence strategy to “soften” some of the politics, although without necessarily compromising the credibility or integrity of the accused and their actions.’ He continues: ‘The experience of [the legal] team guided us, ensuring that we would not compromise our political commitment in search of acquittal, but also undermining the state’s case where possible through careful and incisive cross-examination of the parade of witnesses brought to testify.’⁷⁵

The defence team was respectful of their clients. This was evident, for example, in their response to Geoff Budlender. Budlender was not one of the accused, but he had been named in the indictment, and not surprisingly, since he had been acting president of NUSAS during part of the same time period when the others were active. But could Geoff play a part in this trial, given that he was himself implicated by the state’s indictment? George Bizos recalls that Arthur, ‘steeped … in the theory and practice of legal ethics … sanctioned Geoff’s participation in the defence. He accepted Geoff’s assurance that he knew of no conspiracy and that he had done nothing unlawful. In Arthur’s opinion, we should not waive Geoff’s right (and those of the accused) to be presumed innocent.’ Geoff, sometimes jokingly referred to as ‘Accused Number 6’, continued on the case.⁷⁶

Geoff remembers a telling moment in Arthur’s work on the case. Arthur joined the other lawyers after they had already come together – perhaps because he had another case – and when he did so he said at a meeting, ‘I don’t understand this indictment.’ So Geoff, at that point a vastly less experienced lawyer than Arthur, undertook to explain it to him. Arthur listened politely and thanked Geoff, and Geoff only gradually realised that when Arthur said he didn’t understand the indictment, he did not mean that he was confused by it – but rather that it had no merit.⁷⁷ From this awkward beginning, the long friendship between Arthur and Geoff grew.

The lawyers were also respectful of their clients’ political commitments, their right to make, or at least be fully consulted about, the choices that affected their defence. There is an important difference here between consultation and simple deference. Arthur was attentive to his clients, but as in the case of his assistance to Winnie Mandela in speaking to the nation for her husband, so here – for Mandela himself, and in other respects – Arthur was prepared to conclude that either law or politics required particular trial choices to be made. He did not make those choices over his clients’ objection, a step which might have raised acute issues of legal ethics. Rather, it seems more accurate to say that he was prepared to impose his will when he felt that was called for, and that he commanded such authority that his clients were persuaded by his urging.

Why did the lawyers defer as much as they did to their clients’ choices on political issues? Glenn Moss explained that Arthur ran the case on all the strictly legal elements, such as the interpretation of the statute under which they were charged. But with respect to judgement calls involving politics, Arthur told them that if they were convicted, they would end up serving time with political people; if the other prisoners felt they had over-compromised, their relationship in prison might start on a bad footing. And so political calls were for the clients to make unless there was a compelling legal reason for a particular decision. In short, Moss felt, Arthur understood the process of political trial. But this wasn’t all. While the exact nature of Arthur’s political beliefs was never clear to Moss, his co-accused Karel Tip emphasised that Arthur immediately came across as someone who clearly felt aligned with the NUSAS cause and campaigns.⁷⁸ The accused accepted their lawyers’ judgements because they trusted the lawyers, and they did so because they were not simply legal technicians but instead had joined the accused in their cause.

So when one witness for the state, Bartholomew Hlapane, testified about the adoption of the Freedom Charter and related events – events that had taken place when the accused in this trial were small children – the defence asserted their right to call witnesses such as Nelson Mandela to refute this testimony. The state resisted, but the trial magistrate insisted that the defence could consult with Mandela on Robben Island, and so George Bizos flew to Cape Town. Mandela for his part was both supportive of the student activism that the accused represented, and quite willing to testify. The defence team concluded that bringing him to court would change the atmosphere of the trial – the state would have turned the courtroom into a high-security area, and ‘rioting and clashes with armed police’ were likely – and so advised the accused not to call him.

What happened next is not clear, because the clients’ recollections differ. Glenn Moss recalls that the lawyers left the decision to the accused; they debated the point, and although Glenn and another wanted to call Mandela, by a three–two majority the group chose otherwise and so he was not called.⁷⁹ But Charles Nupen has a different and vivid recollection, which is that three of the five accused were in favour of calling Mandela, and argued that doing so would both give Mandela a chance to get off Robben Island and would add publicity to one of the causes for which the NUSAS efforts had been made, namely the release of political prisoners. But, Nupen recalls, Arthur after listening to them then said that he was running the case, and that the final decisions on strategy in the case rested with him; he did not think it would be fair to Mandela or helpful to the accused, and so the decision would be ‘no’. And that, Nupen said, ended the discussion.⁸⁰

At another point in the trial, the defence considered calling André du Toit, a noted Stellenbosch University professor of political philosophy. Du Toit was prepared to testify that the accused’s various writings were not Marxist, though he hesitated on this score about Moss’s work. But the accused felt that ‘one of the political themes of the early 1970s had been the critique and rejection of liberalism, and all of the accused were loath to retreat from this as part of a defence strategy. We agreed that Du Toit’s well-intentioned agreement to testify in our defence, which might have negative personal and career consequences for him at Stellenbosch University, should be declined.’⁸¹ Here too it seems that counsel were guided, at least in part, by the political commitments of their clients.

A second issue of importance in the trial involved the cross-examination of the witnesses for the state. In this case and the Pretoria Twelve case that followed it, we can see Arthur at the height of his powers as a cross-examiner. There is some debate among his friends about just how good a cross-examiner he was. Joel Joffe described Arthur to an interviewer as a ‘very competent though not brilliant cross-examiner’.⁸² Denis Kuny told me that he never thought Arthur was particularly good at cross-examination, and mentioned that Arthur was almost apologetic with his cross-examination questions.⁸³ On the other hand, Karel Tip, on trial in the NUSAS case, remembers Arthur’s meticulous preparation and attention, and his extremely accomplished cross-examination (and equally impressive leading – direct examination, in American terms – of witnesses for the defence).⁸⁴ Charles Nupen said that Arthur would progressively corner a witness, and that while he was not flamboyant, reading the record at the end would reveal his precision and artistry.⁸⁵ Geoff Budlender offered a nuanced appraisal: he said that Arthur didn’t have the feel for a lay witness’s vulnerabilities that George Bizos did – but, as we will see, Arthur could nevertheless master a body of information and wield it to powerful effect against such a witness. And as to experts, who seek to operate in the world of logic, Arthur’s logic was, to Geoff’s mind, simply superior and his cross-examination of such witnesses especially powerful.⁸⁶

Here in the NUSAS Five case, although the state had downgraded this trial, it still chose to bring to court two witnesses who had each appeared in important cases in the past. Arthur, who would also present the bulk of the argument on behalf of the accused, cross-examined both of them. One, already mentioned, was Bartholomew Hlapane. Hlapane, an ANC turncoat, had been a central witness in Bram Fischer’s trial. Now, as Glenn Moss recounts, Arthur was able to demonstrate that ‘there were serious discrepancies between his new evidence and what he had said previously’. Moss writes that ‘Chaskalson’s cross-examination of Hlapane was devastating, and we believed that the state would no longer be able to rely on him as a witness in future trials’.⁸⁷ (In fact, however, Hlapane would testify once more, in a trial in 1976.⁸⁸) But the purpose of this cross-examination was not simply to undercut Hlapane’s testimony against the accused. As Moss saw it, ‘Although [Hlapane’s] evidence was not of great relevance to our trial, George and Arthur were trying to ensure that he would never again be called as a witness. There was also a sense that they were settling accounts with Hlapane’ for his role in convicting Bram Fischer.⁸⁹ No doubt the accused were happy to contribute to these objectives, as Moss confirmed.⁹⁰ But it is striking that Arthur and his co-counsel seem to have been playing both a short game, defending these clients, and a longer one, strategic, political and perhaps a bit personal, seeking to affect the course of other cases yet to come.

Arthur cross-examined one other prominent witness in this trial, the University of Cape Town professor of philosophy, Andrew Murray. Murray had been a witness in the Treason Trial of the 1950s too, and his assertions that the ANC’s activities were Communistic had been compellingly cross-examined. Yet here he was again, to assert that a new generation’s activities were also Communist. As Geoff Budlender tells the story, he prepared an extensive file documenting all the ways that Murray’s testimony could be challenged. Arthur thanked him, but said he wasn’t going to go that way; instead, he was going to turn Murray into a witness for the defence. This he proceeded to do. He softened Murray up by presenting him with a series of statements and asking if he agreed with them; when Murray said he did not, Arthur showed him that he had himself made those statements, with which he then expressed agreement. After enough of this Murray realised that if he didn’t take the view Arthur wished, he faced imminent contradiction, and so he began agreeing to whatever Arthur put to him. Murray left the stand feeling he had testified well, but it was only the defence who cited what he had said in closing argument – and he was never used as a prosecution witness again. Here too we may guess that the defence counsel were playing both a short and a long game.⁹¹

Arthur also cross-examined a police witness, Derek Brune, who while a police officer had become a vice president of the Wits Student Representative Council at the time that Glenn Moss was president. Brune, whose fellow students had felt he so lacked political conviction that they had assigned him the role of ‘internal vice president’, with responsibilities for various administrative matters – a role he had performed well – attempted to show that NUSAS was in the hands of a radical left ‘clique’, by implication a conspiracy. Moss felt that Arthur’s ‘cross-examination of Brune was masterful. Slowly, he undermined the picture Brune had painted. Brune was forced to admit that he was skilled at lying and deception and, by inference, that his evidence should not always be believed.’⁹² Bizos similarly reports that ‘under cross-examination by Arthur Chaskalson, gentle persuasion would inevitably lead [Brune] to the desired concession … It was clear from his evidence that he knew of no conspiracy to commit any crime.’⁹³

A third issue of importance that the trial raised was the preparation of the testimony of the accused. Four of the accused testified; the fifth, Karel Tip, wanted to testify but accepted his lawyers’ ‘view that it was not necessary’.⁹⁴ The lawyers agreed, however, that Moss ‘was the accused most in danger of being convicted’, and so his testimony was ‘critical’. Bizos took on the task of preparing Moss to testify. According to Moss, ‘George Bizos has a way of protecting clients from rash political assessments and statements without compromising fundamental principles.’⁹⁵ The preparation was intense: ‘Over a period of six weeks, we met many nights at his home after long and sometimes tedious days in court.’ This intense preparation raised yet again the issue of ethics, and specifically the scope of legitimate witness preparation. In the course of their work together, George decided to

play the role of prosecutor, asking me questions, cross-examining me on my responses. If he felt that my response was problematic, he would look at me severely: ‘That cannot be right,’ he would say. ‘Why not?’ I would counter, ready for an argument. ‘Because you have pleaded not guilty, and your answer puts that plea in question.’ Then I would understand that I needed to polish my answer to a finer finish.⁹⁶

George confirmed to me that Moss had caught the flavour of his witness preparation in this account.⁹⁷

But there were limits to the refinement Moss would undertake. He and George clashed over whether his views could be said to fall ‘within the ambit of liberalism or at least radical liberalism’. Moss insisted that his position was ‘informed by democratic socialism’; George responded that he was then a social democrat of the sort seen in Europe.

No, I explained, there is a world of difference between social democracy and democratic socialism. Yes, said George, that might be the difference between you being acquitted and being found guilty and taking your co-accused down with you.

We could not resolve this, and George finally advised me to deal with the issue as best as I could, bearing in mind my responsibility to both myself and the others.⁹⁸

And fortunately the matter never came up in court.

This was vigorous witness preparation, to be sure. Arthur’s own witness preparation seems to have focused less on helping each witness prepare his testimony, but instead on the importance of the stories’ fit with the overall strategy of the case; ‘you must formulate your position,’ he might say. Neither of them, we may say, was in the business of embarrassing their clients.⁹⁹ But Moss emphasised that neither George nor Arthur was like a few advocates Moss would encounter in later years, ‘who were prepared’, as he put it, ‘to “bend the stick” to assist their clients’. These lawyers, usually junior ones, evidently believed that in doing so ‘they were trying to level the very uneven playing fields [on which these cases were contested] a bit’. That is an understandable argument, but Arthur and George, and most of the more senior lawyers Moss engaged with, ‘ultimately placed so much value and emphasis on the importance of a legal system of integrity that they would not undermine it in this way, even when they knew that the system as it existed was distorted and damaged’.¹⁰⁰

After the evidence was in, Arthur presented most of the argument for the defence. But before he did so, a remarkable event took place in the privacy of Arthur’s home, where the lawyers worked with their clients on many evenings after court. (Moss recalled that Lorraine’s influence at home had helped build the relationship between Arthur and his clients, as she took up a maternal role for some of them, and invited them to dinner before the consultations, with good food and wine.) One evening Arthur was looking at the heads of argument led by the prosecutor. They were a travesty, Moss recalls, because they raised a host of matters that had never been addressed in the trial evidence. Arthur threw the prosecution’s heads of argument against a wall and said something like ‘I can’t believe I have to put up with this shit’. This was perhaps the only time Moss ever saw Arthur lose his self-control – and a rare moment in Arthur’s life.¹⁰¹

Why did Arthur lose his temper, and so dramatically? Certainly one reason would have been that as the end of this long trial approached, he was tired. But it is striking that Arthur was not upset in this way by the sheer fact of the trial, in which young activists faced the potential of long prison terms. That was part of the system, and he could fight it within the system’s rules. What distinguished this moment was that the prosecutor had filed papers that lacked legal and ethical integrity. At this moment and throughout his career, Arthur expected better from the law.

In court, George Bizos recalls that the magistrate asked no questions during the argument, which might have been a sign that he was persuaded – but the defence worried that ‘the Soweto uprising, the banning of trade union advisors and the frequent threats by the prime minister and his cabinet ministers to end the activities of white agitators might unduly influence the magistrate’s decision’.¹⁰² The magistrate adjourned court for more than a month to prepare his judgment. Meanwhile, Moss realised that if he was convicted and then jailed at once, he would be unable to write the dissertation that he had to submit early the next year to complete his honours degree – which he had been able to pursue because the accused had been out on bail during the trial. The attorney Ray Tucker advised Moss ‘to pack a small case with toiletries and a few other essentials’, and Arthur promised to have a bail application ‘with him in court, and [to] be ready to argue immediately should that be necessary’.¹⁰³ The lawyers’ attention to their clients’ well-being is evident in these steps, but, as it turned out, they were unnecessary. The magistrate took two days to read his judgment, and in the end acquitted all five of the accused.

*

The last political case in which Arthur was involved before establishing the Legal Resources Centre was S v. Sexwale, the case of the ‘Pretoria Twelve’, which began in 1977. He appeared with his old friend Denis Kuny, and with another advocate, L.G. Bowman; this was also the second case in which he worked with Geoff Budlender, who was still with the attorney Raymond Tucker. It was not inevitable that Arthur would appear in this case, for in fact a number of the accused – young men influenced by black consciousness thinking – wanted to be represented by black lawyers. But Joe Gqabi, whom Arthur had represented in the mid-sixties, insisted on getting Arthur. Gqabi, a veteran of ten years on Robben Island who had returned to the armed struggle after his release, must have been someone whose views were taken seriously – Sexwale said that the debate wasn’t a contentious one – and Arthur became the lead counsel in the case.¹⁰⁴ Over time, as his client Pauline Mohale, the only woman among the twelve accused, would recall, ‘we felt so safe in his hands’.¹⁰⁵

This was a case of unusual procedural turns and extraordinary facts. To begin with the procedural turns: the accused were indicted in March 1977 and trial began in June 1977, and continued till September of that year. Then the case was adjourned till November, evidently to give the defence time to prepare, but shortly before the case was to resume, the trial judge, Davidson, died. That meant, as both the state and the defence agreed, that the trial had to start over, so that the new judge could hear the evidence himself – though the testimony from the first run of the case could be used in cross-examination.¹⁰⁶ Meanwhile, a new and potentially applicable criminal statute had been enacted, and the state had prepared a new indictment, almost identical to the original but not quite, because it added one new charge. Arthur argued that the case had to proceed under the original statute and the original indictment, and the new judge agreed with him.¹⁰⁷

But even before Davidson died, another procedural issue, one with profound ramifications, had arisen. This was the question of whether the court would permit a witness for the state to testify in camera – that is, without the public present (the news media would have been allowed to be present and to report the facts testified to, but not the witness’s identity). The witness, who was not named in the court’s decision, had stated in an affidavit that after testifying in previous trials ‘he was subjected to threats against himself and his family and there was an attempt to burn down his house. He says – and I do not for a moment disbelieve him,’ wrote the judge, ‘that he fears there may be similar reprisals if he gives evidence publicly in the present case.’ The judge went on to say, ‘I cannot overlook the possibility that this harm may be done to him despite the fact that all civilized people would condemn such reprisals as being a horrifying way of facing the facts deposed to by a witness whether they be correctly deposed to or not.’¹⁰⁸

This witness’s fears were neither unique nor irrational. Dikgang Moseneke, who represented many activists beginning in the late 1970s, has written that ‘witnesses regarding what each accused person was supposed to have done were hard to come by. No one – neither the accused nor innocent bystanders – dared testify against activists in an open court.’¹⁰⁹ It may well have been partly for this reason that conviction rates in political cases appear to have been well below 50 per cent in most of the period from 1986 to 1989, when state efforts at repression were likely intense.¹¹⁰ For a state witness to testify in public – a traditional guarantee of a fair trial – might mean death. This was a crucial issue, and Arthur opposed the request for in camera testimony. Judge Davidson agreed. He reasoned that public hearings offer the public a chance to learn of false testimony and contradict it. But his main point seemed to be that it was in fact impossible to ensure the witness’s safety even if he testified in camera; there were too many ways that news of what he had said could make its way out of the courtroom.¹¹¹

Fear of violence was not the only emotion that a witness for the state might feel in testifying in public. Apparently, when Judge Davidson decided that the trial would be open, another witness was already testifying, and had given extensive, damaging and, the accused told the defence counsel, accurate evidence. As Geoff Budlender recounts the story, Arthur did a couple of hours of cross-examination that same day, but to no important effect. The next day Arthur asked a few more questions and suddenly the witness said, ‘You’ve caught me. I can no longer go on lying.’ Then the witness declared that everything he had previously testified to was false, and Arthur took him through his prior assertions, getting him to confirm their falsity point by point. Geoff describes this as Arthur seizing an opportunity in a masterly way and then maximising it – and the reason that it worked was that among the members of the public who were present for the second day of this witness’s testimony was his sister. He preferred to be returned to imprisonment rather than be seen by her to be betraying the struggle.¹¹² On the basis of Glenn Moss’s summary account of the trial proceedings, it seems this witness was Ian Deway ‘Inch’ Rwaxa; unfortunately for the accused, when Rwaxa was re-called to testify in the second trial, he recanted yet again, and provided testimony for the state. Throughout both trials, he was held in detention.¹¹³

The reluctance of witnesses to testify presented another issue in this case as well. Between the first run of the trial and the second, six witnesses from the first trial apparently made themselves scarce. ‘One witness was beyond the jurisdiction of this court,’ wrote Judge Myburgh, ‘and five could not be traced.’ All of them had testified, and all but one had been cross-examined at length (and Arthur and Denis Kuny had informed the court that they had no questions for this one). South African law gave the court discretion in these circumstances to allow the first-trial testimony to be used in the second trial, or not to do so. Judge Myburgh explained that ‘the question then arose whether I should exercise my discretion without reading the evidence but on the general principles and what counsel would tell me of the contents thereof’. Arthur argued for this approach. He lost this battle but seemed to win the war, as Judge Myburgh carefully analysed the testimony of each of the missing six witnesses and decided to admit the testimony of just three in which he saw no possibility of prejudice to the defence.¹¹⁴

All of this, however, leaves out perhaps the most striking feature of trials of this era – that the state was using torture to extract testimony. This was a moment when lawyers inevitably found themselves fighting, tacitly but still plainly, over the physical well-being of the witnesses before them, with the stakes being the outcome of the trial. We have already seen that a witness permitted to testify in camera could escape public scrutiny and with it the test of truth that such scrutiny generates. At the same, for a state witness to testify in camera meant that the witness had no protection from the possibility, or rather the likelihood, of torture. Lee Bozalek, then in private practice in Cape Town, recalls reading press coverage of a state witness who testified that he had been tortured, and expected to be tortured again when he was returned to the cells (presumably because he had said things the police did not want to have spoken). Arthur was cross-examining this witness and said to him, ‘Everyone here in the courtroom knows what happened to you, and hopefully that will offer you some protection.’ Bozalek felt that this was an example of Arthur saying precisely the right thing at the right time.¹¹⁵ But really there was nothing Arthur could say that would fully protect the witness from the fate that might await him in the cells.

As always, Arthur was very much concerned with how his clients were faring as individuals under the brunt of state power. He was, Sexwale felt, a person with the spirit of humanity or ubuntu. Sexwale recalled that Arthur would even bring Lorraine to visit from time to time; indeed, Arthur was sharing his whole family with the accused, and Arthur himself was very, very kind. Arthur would want to know how you were doing, how you slept. Sexwale, whose girlfriend was pregnant, wanted to get married in jail, and Arthur engineered this. Sexwale’s only objection was that behind his back, Arthur discussed with the other accused the likelihood that he would be the one to hang. As a result his colleagues began treating him with kid gloves, and this Sexwale objected to – it was as if he were already a dead man. He raised his objection with Arthur, who laughed and said, ‘You know we understand, we’re praying for you,’ and – a mark of Arthur’s deep understanding of the situation his clients were in – that he knew Sexwale was a soldier.¹¹⁶

Among the accused, Pauline Mohale may have suffered most of all, because even after the accused were formally charged – and therefore became ‘awaiting trial’ prisoners, a much more protected status than that of detainees – she remained in solitary confinement in the women’s prison, unable to benefit from the support of her male co-accused, all detained in another facility. She told me she was tortured in detention, including with electric shocks, and on the third day after this torture she collapsed and lost consciousness. In December 1978, as the first judge was preparing to recess the trial until December, Arthur moved for her release, in part on the grounds of the suffering she was enduring; the judge denied the motion, and she broke down and wept in court. Arthur too was very sad; Mohale remembered that he didn’t know what to say to her, but he did say, ‘You must keep strong.’ Arthur and Raymond Tucker had also guided Mohale in enduring her ordeal: they advised her not to care about who might be listening, but to think aloud, sing and scream as she wanted – and she took their advice. She considered Arthur ‘a father, a mentor, a priest’, and while the trial slowly progressed, over the lonely weekends she looked forward to court on Monday because she wanted to see and talk with her lawyers. Eventually Mohale was acquitted, and in later years Arthur would invite her to events such as a reception at the Rivonia farm, but she feels she emerged from confinement a different person than she went in.¹¹⁷ It is easy to understand how acute Mohale’s suffering must have been; less obvious, perhaps, but also important to understand is how disturbing it would have been for her lawyers to be unable to prevent her suffering over the long stretch of this trial.

All of these events, of course, bore on how the facts of the case would emerge. Michael Lobban discusses this trial in some detail and explains that the state’s case had two central themes. The first was that the accused had planned and carried out military attacks on the state; the second, that the ANC was in league with the student activists of Soweto. On the issue of military activity, Lobban says, ‘the state had the advantage of clear evidence against a number of the defendants that could hardly be disputed’.¹¹⁸ The most dramatic evidence may have been the story of the arrest of Tokyo Sexwale – who would, after the end of apartheid, go on to become the Premier of Gauteng Province and a leading businessman. Back in 1976 Sexwale and three other guerrillas were captured, but they were not carefully searched, and so, as they were being transported by Land Rover after their capture, Sexwale threw a grenade into the front of the car, injuring the police who were transporting them. Sexwale and his comrade got away, but would subsequently be recaptured.

The upshot of the trial was that six of the accused were convicted, but six were acquitted. Among the latter was Joe Gqabi – who would flee the country two months later and rejoin the ANC abroad. Judge Myburgh found that the six he convicted were part of ‘the ANC’s conspiracy of violence’,¹¹⁹ but he did not accept the alleged link between the ANC and the students, and he acquitted six of the twelve accused based on what Lobban calls ‘a careful weighing of the evidence and a precise examination of the charges’.¹²⁰

He also imposed relatively light sentences – Sexwale received the heaviest, 18 years, for what was clearly an attempt to kill his police captors. As Sexwale recognised, other accused in their cases got more time for doing less.¹²¹ In another recent trial, for example, five of those convicted had received life imprisonment. Lobban sees these results as reflecting Judge Myburgh’s ‘analy[sing] the evidence against each of the accused in a precise and careful way, in order to establish which parts of the case had been made out and which had not’,¹²² and no doubt that is correct. But that precise analysis is also a hallmark of Arthur’s lawyering, and it is hard not to think that the judge’s decisions also reflected the tremendous care that Arthur and his colleagues brought to the defence.

Sexwale, like a number of Arthur’s professional colleagues over the years, was struck by Arthur’s sheer tactical skill. Sexwale made a statement from the dock, as Nelson Mandela had before him – and from the same spot in which Mandela had sat during the Rivonia trial. Arthur knew that the statement included no request for mercy and no expression of remorse; but when the prosecutor objected on that ground, Arthur came up with a precedent involving Afrikaner revolutionaries who had taken another stance – and the court agreed that mercy was an element of justice and so did not need to be asked for. Nevertheless Arthur, showing as in NUSAS that he was prepared to make a firm decision about a case when that was called for, apparently insisted that Sexwale include Mandela’s language about accepting the death penalty if that was the price he had to pay, and Sexwale did so, though in his own words:

I was and I am willing to make those sacrifices. I am married and have one child, and would like nothing more than to have more children, and to live with my wife and children with all the people in this country. One day that may be possible, if not for me, then at least for my brothers.

I appreciate the seriousness of my actions and accept whatever sentence may be imposed on me.¹²³

*

Clearly Arthur remained actively involved in handling political cases though not full-time. During these years he pursued two other forms of legal work. One was his active involvement in the Bar Council; the other was his representation of private clients in commercial, rather than political, cases. Both of these were important parts of Arthur’s career.

Arthur was a very active member of the Johannesburg Bar Council. As his curriculum vitae recounts, he was a member of the Johannesburg Bar Council from 1967 to 1971 and from 1973 to 1984, the chairman of the Johannesburg Bar in 1976 and again in 1982, a member and later convenor of the National Bar Examination Board (1979–91), and the vice chairman of the General Council of the Bar of South Africa (1982–7). Why did Arthur devote so much time to the Bar Council? One reason, surely, is that he loved the Bar, as was clear from the start of his career as an advocate. To serve on the Bar Council was to help maintain the profession for which he had so much affection. Fanie Cilliers, a friend and colleague of Arthur’s for many years despite their substantial political differences, recalled that in those days the leaders of the Bar, as recognised by those around them, naturally undertook positions of formal Bar leadership.¹²⁴ Johann Kriegler similarly says that Arthur became involved in Bar leadership because he was public-spirited, and not just running a practice, and he mentioned that Arthur also gave time to Legal Aid (as did Kriegler).¹²⁵ A second reason, perhaps, was to build his career; Bar leadership surely contributed to the strength of his relationships with other advocates and to his visibility to the attorneys who brought the advocates their cases. But a third reason was politics.

Johann Kriegler recalled how political in nature Bar work was – but perhaps nothing illustrates this more strikingly than Kriegler’s own history at the Bar. He and Arthur knew each other from the ordinary routines of the Bar, and their mutual respect had been cemented when they were opposing each other in a very difficult personal injury case, and each, independently, provided an opinion about the amount of damages – and arrived at figures that were very close to each other. But Kriegler said that their connection grew stronger when he made it public that he himself would not attend a Bar dinner with the new Minister of Justice (because of opposition to the minister’s policies). Kriegler’s decision was especially notable because he in fact had organised this dinner, in his capacity as Bar Council secretary. Until then, Kriegler recalled, he had been suspect in the eyes of lawyers on the left as a presumed supporter of apartheid. There was strong anti-Afrikaner sentiment at the Johannesburg Bar in those days, even though Kriegler himself had come to Johannesburg precisely to turn his back on the Afrikaner establishment. Kriegler was also a critic of the ANC, which he viewed as Communist-controlled; no doubt this distanced him from others, such as Arthur, who while not Communists were equally firmly not anti-Communist. But in any event this step by Kriegler connected him with lawyers of the left such as Arthur.¹²⁶

There was a lot of work for people like Kriegler and Arthur to do within Bar circles. As Kriegler recalled in our interview, in the sixties, seventies and even more in the eighties, party politics for people opposed to apartheid were almost irrelevant – since the electoral system was a system for whites, and there was no substantial white opposition party to resist apartheid. But the Bar did become a site of struggle. Arthur and Kriegler worked together in mobilising Bar opposition to the new security legislation being adopted by the National Party, such as the 90-day and 180-day detention laws and the sabotage and terrorism laws.

To get the Bar to take a strong stance on these issues was a delicate political task, as the more liberal Johannesburg Bar faced resistance from conservative Bars elsewhere in the country, particularly Pretoria and Bloemfontein. Moreover, the Bar had its own professional concerns, specifically to maintain solidarity so as to avoid encroachment by attorneys. And at the same time the government tried to play the different groups of lawyers against each other. Arthur in response, as Kriegler recalled, was very cool and very measured, walking a tightrope politically and professionally.¹²⁷ He helped achieve unanimity in 1988 on a General Council of the Bar motion ‘expressing deepest concern at the reimposition of the state of emergency’ – almost, though not quite, a direct condemnation of this oppressive system.¹²⁸ He would write the following year later, in 1989, that ‘leaders of the profession have helped to create space for and given their support to these forms of [human rights and public interest] practice and have thereby helped to make them possible’.¹²⁹

One example of Arthur’s Bar work on security issues took place in May 1976. In response to the government’s determination to proceed in Parliament with consideration of the Promotion of State Security Bill on short notice, the Johannesburg Bar Council issued a unanimously adopted statement criticising the bill.¹³⁰ The Minister of Justice, Jimmy Kruger, responded in Parliament. Kruger’s political career would end after he declared, a year later, that Stephen Biko’s death in detention ‘leaves me cold’. In 1976, he argued that the Bar had involved itself in politics and that he had ‘warned them that if they wanted to come and fight here, we would fight’. He proceeded to aver that the Council should have held a general meeting of the members of the Johannesburg Bar – which the Council had not done, because the government’s decision to move forward with the bill so quickly made it unfeasible.¹³¹ He also singled out Arthur, then chairman of the Johannesburg Bar, for sharp attack. While professing to accept Arthur’s bona fides, he said that Arthur ‘openly went – I admire him for that – to the funeral of Bram Fischer’, as indeed Arthur had, and even noted that Arthur ‘read the speech prepared for him by Andre P. Brink, the Afrikaans writer’. In the light of this, said Kruger, ‘the ordinary public is entitled to ask whether that is not the same man who was at a communist funeral’. He reiterated the point a moment later: ‘he [Arthur] placed himself in a position where the public becomes entitled to query the fact that a few months ago, or a year ago, he attended the funeral of a well-known communist’.¹³²

This remarkable attack in Parliament led the Johannesburg Bar Council to issue another statement, this one signed by the vice chairman, Sydney Kentridge, to make clear that Arthur had no part in it. This statement reflected the Bar’s anger, and also the protection that his position in the Bar gave Arthur. Referring to Kruger’s ‘unworthy insinuations’ against Arthur, it concluded:

These insinuations are not only unjustified, but gratuitous and irrelevant, as the statement was that of the Johannesburg Bar Council and not that of Mr Chaskalson personally. As this Bar has absolute confidence in the integrity and good faith of Mr Chaskalson, the Minister’s insinuations bring discredit on no one but the Minister himself.

However, as Mr Kruger happens to be a member of the Bar and as he is by reason of his office the nominal head of the legal profession in this country, his personal attack on Mr Chaskalson must be a matter of shame to all members of that profession.¹³³

It is a sign of Arthur’s attachment to the Bar that he was personally furious about Kruger’s behaviour. Arthur’s son Matthew recalls Arthur ‘describing Kruger at the time as “that shit, Jimmy Kruger”, which was probably the only time I ever heard him swear about a person. He also kept all of the documents from that period’ – unusually, since Arthur generally disposed of documents once he had finished with them. ‘When Jerome and I were cleaning out the house, we found all the correspondence between him and the Bar Council, press cuttings, etc.’¹³⁴

In other circumstances, Arthur was able to build connections within the Bar across seemingly substantial political divides. That was apparent in his work in the sixties against a bill Verwoerd’s Minister of Justice tabled in March 1967, imposing harsher penalties for a wider range of homosexual acts. This was an issue Arthur would have cared about; when Lorraine’s friend Tony Coghan came out to him – at the time Arthur told Coghan he wanted to marry Lorraine – Arthur was warm and supportive. As Arthur told his interviewer Adrian Friedman, the gay community decided to make representations to Parliament in opposition to this bill; this was, according to Edwin Cameron, the first collective act of LGBTI resistance in South Africa. They assembled a team that included a number of influential Afrikaner lawyers. (No doubt it also helped that Arthur’s former roommate Julian Block was the attorney for the team.) They prepared carefully for a parliamentary hearing and in the end succeeded in getting all but one of the harsh provisions taken out of the bill. This was arguably a real legislative victory, though the one harsh provision that remained was a new and broadly defined crime targeting ‘any act’ by two men at a party that was ‘calculated to stimulate sexual passion or to give sexual gratification’, with ‘party’ meaning ‘any occasion where more than two persons are present’.¹³⁵ Penalties for such acts could include a fine and imprisonment for up to two years. This odd provision evidently stemmed from a police raid on a party in Forest Town, Johannesburg, in January 1966 which gained much public attention at the time.¹³⁶

It is worth pausing here to revisit the question of just what Arthur’s politics were. He was not a Communist, as I’ve already argued. And apart from a short stint in the Liberal Party in his student days, he had not been a member of any political party. But what was he? Johann Kriegler felt strongly that Arthur was a human rights supporter to his fingertips, rather than a political partisan.¹³⁷ Arthur’s longtime friend Denis Kuny agreed; he felt Arthur had no particular ideology, and that what concerned him was human rights.¹³⁸ Roman Eisenstein, one of the clients in the ARM trial, similarly recalled Arthur as having no ideology or organisational affiliation, but simply a good conscience, going back to John Locke.¹³⁹

All of this, I think, is correct but, for reasons we have already looked at, not entirely complete. Arthur certainly did have political views. Joseph Lelyveld of the New York Times remembers Arthur speaking sharply against America’s role in the Vietnam War in the 1960s.¹⁴⁰ Glenn Moss, for his part, felt he never could figure out Arthur’s political views. At times he saw Arthur as having a constitutional democratic, highly principled liberal view – roughly what Kriegler, Kuny and Eisenstein perceived. But at times Moss felt that Arthur had some closeness to some of the ideals of the Communist Party. During the NUSAS trial, Moss was studying Marxism at Wits, and he remembers that Arthur was happy to engage on this subject, and knew many of the people they were studying.

Moss also remembered an incident from somewhat later, after the 1983 founding of the United Democratic Front (UDF, a leading anti-apartheid organisation of the 1980s, closely aligned with the then-exiled African National Congress). Moss was organising a public meeting, and invited advocate Ernie Wentzel to speak. Wentzel, who had been an active member of the Liberal Party, asked if there would be any mention at this meeting of a ‘people’s republic’. Moss said yes – evidently talk of a people’s republic was a standard feature of UDF gatherings in those days – and Wentzel declined. But when Moss asked Arthur to speak, and explained that there would be mention of a people’s republic, Arthur was unconcerned and agreed to talk.

I do not think that this at all disproves his friends’ perception of Arthur as fundamentally committed to human rights. But it does reflect two things, both of which will become important in later stages of Arthur’s life. The first is that while he was committed to rights, he was not committed only to classic rights of liberal political freedom; he was deeply sensitive, always, to the critical importance of inequality (of course a central concern of Marxism). And the second is that while he was not a Communist, he was also not anti-Communist. This, after all, should not be surprising; he admired no one more intensely than Bram Fischer, and Fischer was a committed Communist. Arthur was committed to rights, but he gave that commitment a more inclusive, a more left, meaning than traditional liberals might have.

Just as important, Arthur’s politics very likely did not remain fixed over time. Moss’s description does not focus on change but on understanding Arthur at a particular moment, but Arthur’s son Matthew emphasises his development over time. Arthur’s commitment to rights, in particular, did not disappear but it did get reshaped, as he came to see the balance of rights as more complicated than he had in his earlier years. Arthur’s colleague on the Constitutional Court from 1994 to 2005, Kate O’Regan, viewed Arthur as ‘a man of the left’.¹⁴¹ Matthew feels that Arthur evolved from a ‘fairly orthodox liberal’ to a ‘social democrat and then a socialist with a strong commitment to humanism’. And, though Matthew considered it ‘ludicrous to think that [Arthur] was a member of the Communist Party, it’s particularly ludicrous to think that he would have been a member of the Communist Party in the ’60s when his politics were much more mainstream liberal than they ended up’.¹⁴²

*

July 1971 marked another step in Arthur’s progress at the Bar: he took silk. In other words, he became – shortly before his 40th birthday – a Senior Counsel, a recognition of his status as an experienced, capable and honourable member of the Bar, and with that recognition came the right to wear a silk robe to court. To become a Senior Counsel, Arthur had to apply; in other words, this was an honour that he had to seek. In addition, as a formal matter, designation as Senior Counsel was an honour conferred by the State President;¹⁴³ it rested, therefore, on Arthur’s having a reputation among his colleagues at the Bar that even the National Party government had to acknowledge. It also created a potential personal problem for Arthur, because his close friend George Bizos, two years senior to Arthur at the Bar, had not yet taken silk. Evidently Arthur one day met with George, and after some period of ‘awkward small talk … suddenly blurted out that he was going to apply for silk’.¹⁴⁴ But despite his discomfort at stepping forward before his friend, Arthur did so.

Meanwhile, Arthur continued his commercial practice.¹⁴⁵ His fee ledgers for the years before 1978 unfortunately have not survived. A ledger does exist, however, for the period March 1978 to June 1994. For the year beginning in March 1978 and running through February 1979, the ledger reports fees of approximately R108,894.¹⁴⁶ Taking into account inflation, the 2017 dollar value of these fees would be $469,416.77. There is no way to be certain whether Arthur’s income for this year was typical, but some reason to believe it might have been atypically low, because in 1978 Arthur was part of the legal team in the Pretoria Twelve trial – for which his ledger records only R7,500 in fees – and so might have had less time than usual for commercial clients.¹⁴⁷

Arthur was earning the fees of elite members of the Bar. No doubt the work was also intrinsically interesting to someone who cared about the law as Arthur did; as his reputation rose, and as he became a silk, he would have received progressively more complicated briefs. Between 1964 and 1979, he appeared in at least 44 cases that resulted in reported judgments. It is clear that he was, as Sydney Kentridge would later say, a ‘very, very formidable opponent’.¹⁴⁸ Based on a scan of these cases, Arthur appears to have been on the winning side in 33 or 34 of them – but that statistic understates his success, because it includes cases in which he was, as a junior lawyer, assisting a senior counsel, and in those eight cases he and his leader won only five. By himself, or as the leader for a more junior lawyer, Arthur won at least 28 of 36 cases. Between August 1969 and August 1977 he won all, or all but one, of the 21 cases he led or handled on his own. Two of his rare losses were in cases where Isie Maisels, by then a venerable master at the Bar, was on the other side.

These cases covered a broad swathe of private law. Ten or eleven of the 44 involved motor accidents or other insurance issues – and so reflect Arthur’s early expertise in this field. In fact, four of the first five reported judgments in this period fall in this category. But only one at most of the last twelve cases can be placed in this group. The reason is that Arthur broadened his fields of work dramatically. Over these years he would handle cases in contract law, corporate law, liquidation, insolvency and related matters, a range of administrative law cases, tax cases, white collar criminal defence, and others. He was a lawyer who knew the law so well, or could assimilate a new legal field so quickly, that he was sought out for cases in areas he had handled and in areas he had not.

In one 1968 case, S v. Visser, Arthur represented the government, the ‘State’. Since state prosecutions were handled in-house rather than by briefing of private counsel,¹⁴⁹ this representation of the state was a nominal representation only, and the actual client was the municipality of Johannesburg – though in at least two other cases Arthur’s client was explicitly the Johannesburg City Council. Even so, it is startling to find Arthur undertaking any sort of representation of the South African government. It is true, of course, that advocates under the ‘cab rank’ rule are obliged to accept any client if they have time and capacity to represent them. But it was not unheard of for advocates who wanted to avoid representing a particular client to find that their schedule did not permit them to take the client’s case. Evidently Arthur decided not to employ that kind of stratagem. Perhaps he would never have avoided a case, precisely as the cab-rank rule directs; or perhaps he decided he would demonstrate his fidelity to the rule, once, by taking this particular case. He may also have felt disposed to accept this brief because it came to him from a firm of attorneys, Moodie and Robertson, which briefed him repeatedly in this period.

In any event, he could not have picked a case in which the government’s position was more sympathetic. Visser had been convicted of ‘unlawfully smok[ing] in the auditorium’ of a movie theatre, and had been ‘cautioned and discharged’. The defendant faced no substantial consequences, in other words, while the legal issue was whether the City of Johannesburg had the authority, in the name of the ‘comfort and convenience of the public’, to prohibit smoking in theatres. Arthur prevailed.¹⁵⁰

One other non-political case stood out in Arthur’s mind as an instance in which he had achieved justice. In Santam Insurance Co. Ltd v. Vorster, which Arthur argued in August 1973 and the Appellate Division decided the following month, Arthur persuaded the appeal court that his client, who had been a willing passenger in a clearly illegal auto race on a public road, nevertheless had not assumed the risk that the drivers in the race would drive so dangerously as to compound the danger that the race itself entailed. Arthur felt he had achieved justice in this case, in which apparently no one else thought he had a chance, and that he had done so by successfully convincing the court to accept a counter-intuitive limitation on his client’s legal consent to the risk of harm caused by the race. He was not without pride in his achievements.¹⁵¹

Another case was important to Arthur for a different reason. This was Oakland Nominees (Pty) Ltd v. Gelria Mining & Investment Co (Pty) Ltd, which Arthur argued over two days in September 1975 and the Appellate Division decided in November of that year. The case turned on the application of the English law principle of estoppel. Under this doctrine, as pressed by the distinguished advocate Rex Welsh QC for Oakland Nominees, an owner of stock shares that permitted its shares to be held by a nominee, a very common practice at the time, might be estopped from contesting the nominee’s theft and sale of the shares, because the nominee on paper had authority to enter into transactions involving the shares. Although Arthur knew, when taking on the case, that under English law the owner’s position was hopeless, he believed he could attract the attention of the Afrikaner nationalist judges on the bench, who were concerned about ‘purifying’ South African law from its English law influences, by appealing to a Roman-Dutch principle requiring proof of negligence. The court agreed and found no such proof in the case, and so decided in favour of Gelria, Arthur’s client. Here was an instance where the legal-political project of the judges coincided with the interests of his client. It gave Arthur much pleasure to use the tenets of a Roman-Dutch doctrine in his client’s favour.¹⁵²

It’s worth noting that Arthur also handled three cases that led to reported judgments in Rhodesia (now Zimbabwe). All of these cases were heard in 1974 or later – after Rhodesia’s unilateral declaration of independence, an effort to preserve white rule over the country, in 1965. There is no reason to be surprised by Arthur’s decision to handle Rhodesian cases; he was, after all, engaged on a daily basis in handling cases in South Africa, a country no less unjust than Rhodesia. But it is still worth emphasising that Arthur did not undertake a one-man boycott of the Rhodesian courts. He was not one for vain gestures.

Arthur’s court cases (some of which very likely were not reported, since the South African Law Reports only sought to report decisions of legal interest) would not have been all of his practice. As his remaining fee ledger reflects, his practice also included ‘advice’ and ‘opinions’ and consultations (abbreviated as ‘Cons’ in his ledger). He also continued to write the article on insurance for the Annual Survey of South African Law up to its 1971 volume; Judge Dennis Davis, whose interests include insurance law, described these articles as ‘thoughtful’.¹⁵³

*

It is important to emphasise that Arthur was engaged in the active practice of elite commercial law. Why did he choose to do so much non-political work? The answer is not that he was politically indifferent; it’s clear that his experience in the Rivonia trial deepened the commitments he had already been forming even before that trial. Nor is the answer that there simply weren’t many cases to be done in these grim years; it is true that the government had largely (though temporarily) smashed the opposition in the years immediately following Rivonia, but that very fact indicated that there were significant numbers of prosecutions still being brought. Other lawyers such as George Bizos, Denis Kuny and David Soggot, all friends of Arthur’s, probably handled more of these cases. So if Arthur intended to pursue justice under apartheid through law, why did he not do so full-time?

Much of the answer may have been that his caseload was not under his control. There were undoubtedly more political cases to be done than Arthur in fact did, but advocates can only handle the cases that attorneys bring them. Attorneys may have felt that Arthur’s special skills – his relentless logic, his unremitting analysis and synthesis of complex facts – were needed most in large cases with multiple accused, such as the NUSAS and Pretoria Twelve cases. In smaller cases, on the other hand, what might have been most needed was the ability to cross-examine intuitively and fiercely, and while Arthur was a careful cross-examiner, he was not at his strongest in dealing with individual, non-expert witnesses. Meanwhile, attorneys would have brought Arthur complex commercial cases, and all the more so after he took silk in 1971.¹⁵⁴

But these answers seem incomplete, perhaps most importantly because they imply that Arthur’s work was the product of forces beyond his control. It is quite true that he did not have complete control over the cases that came to him, but it is hard to imagine Arthur – who proposed himself to Bram Fischer as part of the Rivonia team – unable to obtain more political work if he had been determined to do so. If we instead assume that Arthur was, broadly speaking, engaged in the work he sought to do, then we can ask why he sought this particular mix of cases.

One answer might be that Arthur himself chose to handle only a limited set of cases – appeals rather than trials. This was what Arthur told Glenn Moss, one of his NUSAS clients, when Moss asked him why he had taken their case. Arthur might have arrived at this mode of practice out of an assessment of his own skills. Perhaps, however, more was involved: perhaps Arthur’s deep involvement with Bram Fischer and Nelson Mandela through the Rivonia trial had exhausted him emotionally. We have already considered this possibility, and Glenn Moss raised it, mentioning that Arthur seemed very conscious of Bram Fischer’s memory both inside and outside the courtroom during the NUSAS trial.¹⁵⁵ But I haven’t encountered anyone who described Arthur as emotionally exhausted in these years, and in fact his answer to Moss, as Moss recalls it, wasn’t entirely accurate. He had taken part in two substantial political trials since Rivonia, the Theron defence and the first Winnie Mandela case. Arthur’s answer to Moss also didn’t explain why he had now undertaken the NUSAS case, which was itself a trial case rather than an appeal. Nor would it explain why he then proceeded to take on the ‘Pretoria Twelve’ trial shortly after the end of the NUSAS case.

A better answer, I think, is that during most of this period Arthur was following a path to prominence at the Bar that had been well marked out by others before him. Among these, Bram Fischer would have been perhaps the most powerful model, because he and Arthur became so close – and Fischer, Communist though he was, had the same sort of mixed practice as Arthur developed, in which he mixed political cases with holding retainers from major mining companies. Arthur wanted to seek justice, but he also wanted to make a name for himself. He was, as Dennis Davis perceptively told me, a ‘super-silk’, reaching to the heights of his profession at a relatively young age.¹⁵⁶ He was competitive – he would later tell his daughter-in-law Susie Levy that there was nothing wrong with competition¹⁵⁷ – and he was competing, and very successfully.

It seems fair to add that he must have welcomed the income that his successful commercial practice generated. Arthur had enough wealth already that he would later say he never had to work, but when he left commercial practice to found the Legal Resources Centre he also warned his son Matthew that the family’s lifestyle might become more constrained.¹⁵⁸ In the years before the LRC, he was earning the fees that an advocate in demand could earn. Those fees surely helped make the raising of Arthur and Lorraine’s two sons easier. They also enabled Arthur and Lorraine to enjoy what money could buy; as Lorraine told me, in those years Arthur was happy to see her fill their home with beauty in the form of art, from paintings to pottery to clothing and special items for their children – and all of this would have cost money.¹⁵⁹

There is another possibility as well. Lawyers representing disadvantaged people sometimes burn out, and one reason for that burnout is the sense that the work they are doing changes nothing systemically, even if it can make a real – even dramatic – difference in individual clients’ lives. The political cases Arthur did handle were all worth taking, but in the 1960s and 1970s they did little to dislodge the system of apartheid.

Why then would Arthur have wanted to be involved in the NUSAS and Pretoria Twelve trials at the end of this period? Glenn Moss believes that Arthur took the NUSAS case because it would make a difference. The logic of the state’s case threatened to close down the limited space still available in South Africa for above-ground political opposition to apartheid, and protecting that space mattered. Moss also recalls that even early in the trial, Arthur and others were talking about the possibility of a broader legal approach, a practice that would go beyond the case-by-case defence of apartheid’s victims to shape a practice of public interest law.¹⁶⁰ That was what the Legal Resources Centre would do; it was designed precisely to find and press cases that might make a systemic difference, and Arthur’s decision to join the LRC surely reflected the sense of possibility that this approach opened up.

Moss also suspects that Arthur began to see political possibilities that he hadn’t noticed before. In 1976, in the middle of the NUSAS trial, Soweto exploded in opposition to the government’s attempts to impose Afrikaans education on black students – and all of a sudden it was clear that Africans were not going to acquiesce in the continued rule of apartheid. Meanwhile, something else was happening in the NUSAS trial itself: just as the NUSAS leaders were encountering a master of using law to seek justice – an experience which would lead three of them to work at the Legal Resources Centre – so Arthur was encountering the new student leaders and their resourcefulness and hope.¹⁶¹ In all these ways, Arthur’s decision to take the NUSAS case, and his experience in the case, seem to have reflected and contributed to a change in his feelings.

But even as new political energies and legal options emerged, the frustration inherent in the political cases of the 1960s and 1970s remained just that: inherent. To fight against apartheid in its courts meant to take cases that would at most have incremental, if not invisible, effects on the system as a whole. Even in the late 1980s, as the end of apartheid neared, Arthur – and probably most of his friends and colleagues – had no expectation that the system was about to end.¹⁶² So why press on in the face of such profound resistance? Rather than asking why Arthur didn’t do more, perhaps the question to be asked is why he did as much as he did. Why did he stay in the country at all?

Perhaps surprisingly, the three books Arthur lent Lorraine on the evening that they first met turn out to offer some suggestions of answers to these questions. While these books were not the result of comprehensive reading on Arthur’s part, and certainly do not offer definitive answers for us, they were still striking choices which shed a good deal of light on who Arthur was. One was Kafka’s The Castle. Kafka stands out biographically as an insurance lawyer who hated his work though he did it well. Arthur too was an insurance lawyer, especially at the beginning of his career. Like Kafka, Arthur was also Jewish; not ardently so, and with less of an interest in Judaism than Kafka developed during his lifetime, but nevertheless self-consciously a Jew.¹⁶³ Arthur was also an English-speaking white South African; that meant he was not an Afrikaner. He was a man of multiple identities and yet stood outside the mainstream of each of them.

In 1985, when Arthur came to New York City to receive a distinguished prize from the Association of the Bar of the City of New York, he said in a speech, ‘I think it is probably easier for someone who has grown up outside the [Afrikaner] establishment to look upon the structure which the [Afrikaners] have erected to gain power and protect their position far more critically than they would do themselves.’¹⁶⁴ This sentiment was not entirely dispassionate; as his pride in the result in the Gelria case indicates, Arthur was acutely conscious of the injustice of the spread of Afrikaner power, in law as elsewhere, and pleased to oppose it. He also clearly had mixed feelings about the identity he could most easily have embraced, as a trial lawyer; he was dismayed by the prospect of a life marked only by forensic successes or failures.¹⁶⁵ By the time he spoke in 1985, he had resolved this dilemma at least to his own satisfaction by turning from the individual practice of law as an advocate to the co-founding, and leadership, of the Legal Resources Centre.

But this professional resolution did not resolve everything, and perhaps the second of the two books he offered to Lorraine sheds further light on who Arthur was becoming. This was a book by Thomas Mann, apparently Death in Venice. The book did not grab Lorraine’s interest though she told Arthur she was determined to try The Magic Mountain. Death in Venice is a complex story, in which the hero, Gustav von Aschenbach, finds the clash between the unremitting discipline of his craft as a writer and his desire for passion and love difficult, really impossible, to resolve satisfactorily. Perhaps for Arthur this deep conflict in part reflected his desire for a religiously framed place in the world, a place that Arthur could not actually find. In a eulogy for his mentor Bram Fischer’s son Paul, who died in 1971 at the age of 23, Arthur would speak to this task, saying, ‘There is a contradiction in all of our lives, for we are born to die, and none of us knows with certainty why this is so.’¹⁶⁶ Arthur ‘appreciate[d] that [belief in God] is very important to some people, and provides them with a tremendous strength. I don’t have that.’¹⁶⁷

Or perhaps Arthur was searching for a balance between two modes of living, one warm and connected, the other reserved and on occasion even cold – a contrast that may help explain the disparity in the views that others had of what sort of person Arthur really was. It is difficult to come to grips with this division in Arthur’s character, and we will return to it again. Certainly he was known for his exceptional politeness to all; that might be a mannered choice but he was also notably generous, to such people as his brother Sydney, Joel Joffe, Anne Sassoon and Toni Shimoni. These moments appear to be genuine and giving acts of support for others.

It may be that Arthur truly felt no impulse of politeness toward those, such as Derek Brune or the brutal security officer Swanepoel, who had thrown themselves without ambivalence into the struggle to preserve apartheid. But I am inclined to think that Arthur retained this impulse even with the adversaries he found most disturbing. Perhaps, like Mann’s von Aschenbach, Arthur sincerely felt not only politeness but also stern disapproval towards those who supported apartheid, like Brune and Swanepoel.

That ambivalence is understandable – but Lorraine may not have been afflicted by this same internal division. Though she was deeply empathetic, she also had sharp, even fierce, moral views. She perhaps was fundamentally not polite, and it may be that von Aschenbach’s profound internal conflicts simply did not speak to her.¹⁶⁸ The Arthur she would come to love was perhaps a man who embraced her convictions rather than her hesitations, and this was the man who would undertake a practice of law founded on protecting the rule of law and human rights in South Africa.

Matthew Chaskalson says that the third, and for Arthur perhaps the most important, of the three books he lent Lorraine was Camus’s The Plague, though Lorraine did not actually take it with her because she had already read it. Years later, when their son Matthew was 14 – so in 1977 or 1978 – Arthur gave him this book too.¹⁶⁹ Probably a decade after that, perhaps on my first visit to South Africa, he gave me a copy of The Plague as well. Something about Camus was important, it seems, to Arthur’s understanding of his life and his responsibilities in his life.

The Plague is, as its title suggests, the story of a plague epidemic, set in a fictional North African (and French colonial) town. It is in part the story of duty, and a metaphor for the fight against the Nazis that had ended just two years before its publication in 1947. The central figure is a doctor named Rieux, who throws himself into the town’s struggle against the plague. He sees himself as ‘on the right road – in fighting against creation as he found it’. ‘Creation as he found it’ is a phrase that fits well with Arthur’s experience in South Africa, where he found creation – apartheid – in place and chose to confront it. Why confront it, when an easier life might take a different path? Camus does not say that those who fight are heroic. Rather, he writes, ‘the question is that of knowing whether two and two do make four’. If they do, it is time to act. This is the perspective of the man who, as a first-year student at Wits, declared that the question the students should be discussing was not tradition but, simply, what is right. This question, moreover, would always be pertinent, and the story of the town’s fight against the plague

could not be one of a final victory. It could be only the record of what had had to be done, and what assuredly would have to be done again in the never ending fight against terror and its relentless onslaughts, despite their personal afflictions, by all who, while unable to be saints but refusing to bow down to pestilences, strive their utmost to be healers.¹⁷⁰

Arthur’s older brother, as we have already seen, says that Arthur was always very dutiful. Yet the duty to struggle is not a duty to forsake everything but struggle. Stephen Clingman, who knew Arthur and Lorraine from the 1970s, has pointed out to me that there is pleasure in the life that an existentialist undertakes.¹⁷¹ For Camus, too, duty is not all. In The Plague, the character Rambert wants to slip out of the plague-infested city, in defiance of the quarantine rules, to rejoin his lover – and when Rambert wonders if he is ‘all wrong in putting love first’, Dr Rieux answers: ‘“No,” he said vehemently, “you are not wrong.”’¹⁷²

Rieux’s words to Rambert seem to echo Arthur’s in a 1995 interview. There Arthur expresses his own uncertainty: ‘You know, not everybody is a freedom fighter. Some people take up arms, others don’t. You find different ways of identifying yourself with a cause.’ A moment later he says that he always opposed apartheid and that

I think, in fact, that I possibly achieved more against apartheid in my professional career than I could have done in any other field. Whether I consciously settled down and said, ‘Should I do this or should I do that?’ I don’t know. For me to say that the reason that I didn’t join a resistance movement was that I thought I could do more this way would be a bit of a rationalisation.¹⁷³

And there was, indeed, a life to be lived as well as a struggle to be pressed. Later in The Plague Rieux agrees with another character, Taurou, who proposes that they go for a swim in the midst of the plague. Taurou says, and Rieux concurs, that ‘Of course, a man should fight for the victims, but if he ceases caring for anything outside that, what’s the use of his fighting?’¹⁷⁴ So in these years Arthur did struggle against injustice, but he did not cease caring for anything outside that; he enjoyed the life he had shaped even as he resisted the injustice that surrounded him. The fight, moreover, had its own value: what Arthur certainly did not do was to embrace the disease around him; that was the response of von Aschenbach in Death in Venice, and represents a lack of balance that Arthur’s determination to fight against suffering helped him to resolve. Arthur was with Rieux in the end, and not with von Aschenbach.

Arthur found inspiration in at least one other of Camus’s works.¹⁷⁵ In an obituary of Arthur written three days after Arthur’s death, Jeremy Gauntlett found ‘a clue’ in ‘a passage in Albert Camus’ Notebooks, which he (Arthur) marked up: “For thousands of years the world has been like those Italian paintings of the Renaissance where, on cold flagstones, men are tortured while other men look away in the most perfect unconcern. The number of the ‘uninterested’ was immense compared to the interested. What characterised history were the number of people who were not interested in other people’s misfortunes.”’¹⁷⁶ Arthur could not look away. He praised Bram Fischer for refusing to do so, and made this a principle of his own life as well.¹⁷⁷