And Justice For All. Stephen Ellmann
juniors, younger juniors and older juniors and it was truly a great place – people would talk, meet and discuss and anybody who had done anything wrong would be up for conversation – your reputation was very public at that time.4
Many advocates shared Arthur’s view of the Bar. Jules Browde SC, another of the leading anti-apartheid lawyers of the day, would write:
That we [advocates] are able to survive the stresses and strains of practice is in large measure attributable to the friendship and fellowship of our colleagues. At the Johannesburg Bar there is a long-standing tradition that any member of the Bar will readily come to the assistance of a colleague who has a problem or difficulty, often setting aside his own urgent concerns to do so. Apart from this, life at the Johannesburg Bar has through the years been made pleasurable by the kindness and cordiality of colleagues.5
Moreover, this fellowship largely transcended politics. Arthur recalled his friend Fanie Cilliers saying to him one day, ‘You are a very dangerous person who should either be the Minister of Justice or in jail!’ When I asked him about this, Cilliers didn’t remember it, but he felt it reflected that politics didn’t much matter within the Bar, which was a truly meritocratic institution where talent was recognised. More than one person has called the Johannesburg Bar of this era, or its common room, the best club in the country – though that compliment, as we will see in a moment, implies a serious critique as well.
The positive view of the Bar was not universally held. Dikgang Moseneke would later write in his autobiography that the Bar in the 1980s ‘was a little more racially tolerable and yet at its core it was an old boys’ club. The cream of the crop was white, male and well pedigreed … They were well heeled financially, they owned their world and they were, by and large, arrogant.’6 Arthur was not arrogant, but he was white, male and well pedigreed, and well heeled financially. He enjoyed the fellowship of the Bar. Many years later, Albie Sachs, in interviews with me, would emphasise that advocates, though colleagues, were capable of playing tricks on each other – within the rules, to be sure – for tactical advantage, and he would recall Arthur, on the Constitutional Court, every so often coming out with a strong laugh in response to some witticism of the competitive-advocate style. Arthur was much more than a comfortable member of the Bar, but he was that as well.
If the fellowship of the Bar to some extent transcended politics, nevertheless the Bar encountered politics. Arthur would recall that ‘The Johannesburg Bar, though part of the white establishment, was, however, never seen as a bastion of apartheid. It retained a concern for the rule of law, protested against some of the worst laws that were passed, supported members who defended those charged with political offences, and was viewed with suspicion by those who ruled the state.’7 Browde and Selvan note that ‘a number of statements were made by the Johannesburg Bar from the year 1951 condemning legislation which it regarded as inimical to the values that the Bar supported’.8 No doubt Arthur, already firm in his opposition to apartheid, supported these efforts. As he began to take political cases, he surely also benefited from the Bar’s commitment to supporting its members when they did such work. He would go on to become a recognised leader of the Bar, serving as a member of the Johannesburg Bar Council from 1967 to 1971 and from 1973 to 1984. He would also, as we will see, rely on the Bar’s support to authorise the departure from conventional rules of practice (specifically, the separation of advocates and attorneys) entailed in the creation of the Legal Resources Centre.
At the same time, it seems fair to say that Arthur’s own engagement in anti-apartheid efforts did not emerge, full-blown, at the moment he was called to the Bar. In 1956, as Arthur was beginning his own practice, so too Duma Nokwe, the first black member of the Bar, was beginning his. Nokwe faced a special problem – it was illegal for him to occupy chambers in the advocates’ building, because that building was in an area restricted to whites. As Browde and Selwan write, George Bizos, a friend of Nokwe’s from law school,
volunteered to share his room with Nokwe and they continued to share chambers from 1956 up to the year 1962. By so doing all concerned including the Bar Council risked prosecution. It is to their credit that the leaders of the Bar and of the eighth floor group [of which Bizos was a part] … were prepared on a question of principle to take that risk. In the event the government avoided a confrontation.9
In fact Bizos and Isie Maisels QC had planned to head off potential opposition from some members of the Bar by having Bizos make his offer to share his chambers with Nokwe when he was actually already doing so. Bizos remained distressed that Nokwe did not also gain access to the Bar’s common room (nor did Ismail Mahomed, when he joined the Bar in 1957).10 But Bizos, who had formed ties with black law students while at Wits, was by now already launched on a career focused on opposing the government. Arthur, it seems, had not yet reached this point.
It would be a mistake, however, to see Arthur as unaffected by the political struggles of this time. We have already encountered Arthur’s participation in Torch Commando events that entailed physical battle against right-wing stone-throwers. It was also in the 1950s, evidently, that Arthur joined a political party for the only time in his life, the Liberal Party. (Though Arthur was also pursued later by rumours that he had at some point become a member of the South African Communist Party, I believe these were unfounded, as I will discuss later.) Since Arthur was a university student in the early and mid-1950s, he would have been a member of the Liberal Party then. Founded in 1953, the Liberal Party was not initially a voice for unqualified racial equality, though in the context of the times Arthur’s joining was certainly an expression of his anti-apartheid views. Over time, the party came to stand for a universal, non-racial franchise, and attempted to build membership among blacks as well as whites, a major step in those days, when no blacks had the right to vote for Parliament, their (qualified) franchise having been taken from them in 1936.
Arthur’s formal membership must have lapsed quite soon after he joined, and long before the Liberal Party disbanded in 1968 – after the National Party government made multiracial political parties unlawful, in a statute egregiously titled the Prohibition of Improper Interference Act 51 of 1968. But his affiliation with the sentiments of the Liberal Party was longer lasting. Arthur’s friend Benjamin Pogrund remembered seeing Arthur and Lorraine at parties of the white liberal social set; Pogrund placed these in the late 1950s, but Arthur and Lorraine did not meet until a little later than that, and so these parties presumably took place in the early 1960s. It seems that, as with tennis – where there was a Marxist tennis group and another, less radical, of which Arthur was a part – so with parties, both social and political: there were, Pogrund recalls, two distinct groups of white leftists, those linked to the Liberal Party and those linked to the Communists.11 Apparently there was ‘fierce antipathy’ between some of these people, despite (or because of) their shared opposition to apartheid.12 Beryl Unterhalter, who was a member of the Liberal Party at the time (and whose husband Jack was vice chairman), similarly remembered Arthur and Lorraine in the 1960s as supporters, but not as active members who would have, for instance, served on committees.13
One other political act of Arthur’s stands out from this period. In the early 1960s, after the Sharpeville massacre – a defining moment in South Africa’s history – Nelson Mandela went underground. To get from place to place, he often relied on whites who could lend him their car. Mandela would drive the vehicle, masquerading as a chauffeur ‘driving my master’s car’ to achieve invisibility,14 sometimes or always with the white ‘master’ along. On one occasion, Joe Slovo – who ‘often arranged for drivers and safe places to stay’ for Mandela15 – asked Denis Kuny if he would drive Mandela to a meeting in Ladysmith in Natal. Kuny unhesitatingly agreed. But there was one problem: Kuny’s car wasn’t very reliable. So Kuny went to Arthur and asked if he could borrow his car (a reliable Humber) to transport Nelson Mandela. Arthur unhesitatingly agreed too. Kuny drove Mandela through the night to Ladysmith, dropped him off there, and drove back.
This decision was seriously risky. It was not long after this, in August 1962, that Mandela was apprehended by security forces while engaged in just this sort of drive.16 Denis Kuny told me that if they’d been caught he wouldn’t have disclosed that it was Arthur’s car, but even if he had successfully resisted the