And Justice For All. Stephen Ellmann
the car’s owner more prosaically, by tracing its licence plates. Perhaps Arthur could then have persuaded the police that he lent the car without knowing that Mandela was to be driving it, but to do so would have required Arthur to give a false account of events to the police – and he might not have succeeded anyway.
The impression these events give is that Arthur had not yet fully thought through the implications of his commitment against apartheid. He could have joined the Congress of Democrats, a white group aligned with the ‘Congress Alliance’ which the African National Congress led, but he did not. Yet Arthur was willing to fight, in the Torch Commando events, and was willing to risk arrest, in lending his car to Nelson Mandela. His opposition to apartheid and his courage stand out; but he does not yet seem to have evolved a strategy for living a life opposed to apartheid within South Africa. It may also be fair to say that he is still acting in good measure on the basis of personal ties – to his longtime friend Denis Kuny (who for a time shared Arthur’s chambers), or to his brother Sydney, who invited him to the Torch Commando events – rather than on strategic judgement. Perhaps he was even excited by the drama both of participating in the Torch Commando confrontations and of assisting Mandela, the ‘Black Pimpernel’, as he slipped from place to place underground.
But to say that Arthur was still acting out of youth rather than maturity may be quite wrong, because there are additional such moments of which we need to take account. One is an instance in which Arthur and his wife Lorraine sheltered a fugitive in their home. Lorraine told me about this, but she was not sure of the name of the person they had sheltered, and on reflection she pointed out that she may never have known who he was.17 It’s worth emphasising, as well, that this act of sheltering, though clearly covert, may not have been criminal; it is not clear that the fugitive was at the time the subject of any arrest warrant. But it was surely risky. Lorraine acknowledged the risk, but told me that she wasn’t nervous about it; the man needed us, she felt, and so we should help him.
Though Lorraine could not identify the person the Chaskalsons sheltered, it now seems possible to say who this fugitive likely was. As it happens, Roman Eisenstein, a friend of the Chaskalsons from early on (he had got to know Lorraine in her first year at university), recalled visiting the Chaskalsons and met there a man who was never introduced to him. Some months later, Eisenstein encountered the same man in London. He turned out to be Vivian Ezra.18 Lorraine’s tentative recollection that the Chaskalsons might have been asked to shelter this person by Bram Fischer thus seems likely to be correct. Stephen Clingman, Fischer’s biographer, records that after the arrests that led to the Rivonia trial took place in 1963, Fischer realised that Ezra held crucial information that would be jeopardised if he was arrested, and that ‘they had to get Ezra out of the country with all possible speed’.19 It appears that Fischer first asked the Chaskalsons to hide Ezra. Lorraine did not recall where he went next, or how, but Clingman indicates that he made his way secretly out of South Africa.
The second episode of which we need to take account is another story told by Eisenstein, who became a member of the African Resistance Movement (ARM), a group of young white radicals who embarked on a sabotage campaign in the early 1960s. Ultimately he would be sent to prison after a trial in which Arthur appeared on behalf of one or two of Eisenstein’s fellow accused, in 1965. In 1962, another member of ARM, the journalist Yusuf Omar, was caught with a suitcase of explosives. The case against him looked open-andshut. But Omar was out on bail, and Eisenstein arranged for Arthur to come and talk with them. Arthur questioned Omar in what Eisenstein considered the English style – that is, he asked Omar a number of questions but notably did not ask him, ‘Did you do it?’ Then Arthur and the two of them invented a defence for Omar, and Omar told this story to his advocate, George Lowen, who defended the case on this basis. Omar was sentenced to only a year and a half in prison. Subsequently, Eisenstein says, other advocates ‘ragged’ Lowen about Omar’s defence in the advocates’ common room, and Lowen got mad and insisted that the defence was absolutely true.20 As with the harbouring of a fugitive, so in this instance Arthur may not have violated any law; he seems to have carefully avoided knowing, unambiguously and unqualifiedly, that the story he helped Omar devise was false. Still, as in sheltering a fugitive, so here Arthur clearly departed from conventional lawyerly conduct – one does not, ordinarily, assist another lawyer’s client in shaping a defence. Perhaps it was simply the case that when Arthur and Lorraine were asked, they felt obliged to help.
The third episode is a non-political story. Once Arthur was dining in a restaurant in Johannesburg, apparently with another lawyer, when the diners witnessed a homeless man on the street outside the restaurant attack someone with a knife. Arthur jumped up and hurried out of the restaurant and yelled ‘Drop that knife’ at the armed man – who did, in fact, do as he was bid.21 Arthur was brave and determined; and if these three events sound rash from the perspective of four or five decades after the fact, perhaps that is not Arthur’s miscalculation but ours. He and Lorraine would negotiate a delicate course in staying inside South Africa and using South African law against itself over many years, but it may be that he was never entirely strategic and circumspect. When his heart stirred him, at least on several occasions, he acted.
What did he expect the future would bring at this point? One hint is provided by a story told by Arthur’s friend Rusty Rostowsky, who became an attorney in Johannesburg as Arthur was starting out as an advocate. One day in the early 1960s a two- or three-car caravan of lawyers departed on the several hours’ drive from Johannesburg to Swaziland, with Arthur driving one of the cars. The trip had been planned; they were on their way to the Swaziland court, to seek admission to the Swazi legal profession as attorneys. Holding this Swazi credential, they thought, could make it easier for them to emigrate to England, for instance, or Australia than if they could only present themselves as South African lawyers trying to get out of South Africa. (Swaziland became independent in 1968, as Arthur’s son Matthew pointed out to me when I told him this story, so it seems likely that in seeking a Swazi legal credential Arthur and his friends were seeking a British credential as well.) Unfortunately the trip did not go well. For some reason – whether machination or mistake – their motion was not listed on the court’s roll for the day. Arthur stood up and asked the court to hear the motion anyway, but the judge abruptly rejected his request. Nevertheless, the young men did not give up; they drove back to Swaziland a couple of months later and succeeded in getting admitted as attorneys. When Rusty Rostowsky told me this story, I responded that I hadn’t thought that Arthur considered emigration seriously, and Rusty said that that was right – but he did give it enough thought to want to hedge his bets this way. Arthur would never leave South Africa, but at this early moment it seems the thought crossed his mind. Meanwhile, he had already begun the anti-apartheid litigation that would play so large a part in his life over the decades to come.
As Arthur prepared for and began his legal practice, South Africa was caught up in immense and painful political changes. We have touched on some of these already, but it is time to make the political context in which Arthur found himself more plain. The story is elaborate but its basic outlines are straightforward. With its electoral victory in 1948, the Afrikaner-based National Party took over government power, and it set about turning South Africa’s long-standing policies and practices of racial discrimination into systematic and absolute impositions of white supremacy. Black South Africans, like some of their white counterparts, had long sought to block such moves in the courts, but now their response was to turn to increasingly militant protest. Nelson Mandela and others led the ANC’s non-violent defiance campaign in 1952, to which the government responded with new legislation sharply increasing the penalties for even non-violent protest. Then, in 1955, the ANC convened the Congress of the People, which adopted the Freedom Charter, a document that became the touchstone of the ANC’s programme for South Africa.
The government’s response this time was the Treason Trial, which began in 1956 with,