And Justice For All. Stephen Ellmann
dismissal of most of the accused, and the acquittal of the few remaining ones – a triumph of defence lawyering and an instance of the capacity of South African courts under apartheid to do justice, although at the same time a tremendous interference with the lives and political work of those who endured this prolonged trial. But by that time at least 69 Africans demonstrating against the requirement that they carry passbooks had been killed by security forces in the Sharpeville massacre of 21 March 1960; the government had declared a state of emergency and, a month later, the ANC and the breakaway Pan Africanist Congress (PAC) had been banned; and both these groups (and others) were turning away from non-violence towards sabotage and guerrilla activity.
Meanwhile Arthur began to take political cases. So far as is known, he did not take part in the Treason Trial defence, though his friend Denis Kuny notes that many people assisted in this case behind the scenes, and Arthur may have been one of them.1 He himself recalled that he had reached a firm decision, right at the start of his practice, that he would make himself available for such cases. That was important; even though in theory advocates were obliged to take any paying case that was offered to them and for which they had available time, in practice attorneys seeking advocates for political trials surely looked for those who had made clear their willingness to handle such matters.
Nevertheless it is one thing to be willing to take political cases, and another to actually take them. Here, as in so much of Arthur’s life, personal ties seem to have made a difference. Arthur was very good friends with Denis Kuny, who was more bluntly political than Arthur, and with Denis Kuny’s then wife Hillary, who was the local secretary of the Defence and Aid Fund. This body looked for counsel for the accused in political cases, and also channelled funds into the country to cover those counsel’s fees. Both tasks were challenging, the latter especially so when the government had banned the use of foreign funds for this purpose. Hillary looked for advocates to press into service. Her recollection is that young lawyers like Arthur and his good friend Joel Joffe were at this stage not very politically engaged at all – and it was her job to make them so.
It is difficult to draw firm conclusions about the shape of Arthur’s political practice, since we cannot easily determine which cases he took that never made their way to trial or to the full formality of a reported judicial judgment. Even so, the cases we do know about shed a lot of light on the role Arthur was carving out for himself. They reflect that he took a hand in trying to block the National Party’s relentless segregation of South African life, and that, as African protest turned to violent action, he did not hesitate to take up their cause as well – though he insisted on his status as a lawyer rather than a politician in the efforts that he made. The cases reveal Arthur strategising in a test case, while devising a powerful evidentiary strategy in another conflict that would become one of his touchstones in later legal work. They show him prepared to fight, sometimes courteously, sometimes more bluntly. Interestingly, they also point to Arthur’s limitations. These cases mark the beginning, though far from the end, of Arthur’s involvement in politically charged cases as an advocate.
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R v. Chan King, decided in late 1960, is Arthur’s first reported public interest case. It arose under the Group Areas Act, a dreadful statute under which South Africa’s apartheid rulers sought to impose physical residential segregation on the basis of race on a massive scale. Chan King, referred to in the case as the ‘first accused’, was a man of Chinese descent, who apparently ran a fish and chips shop in a white area. The ‘second accused’, who was the director, or at least ‘a director’ of the company to which the shop was leased, was a white man. The court reports, ‘It is clear on the evidence, the first accused having been kept under observation by a police officer, that the first accused during the greater part of the day was engaged single-handed in serving customers in this shop, the clientele being principally natives. The second accused would merely put in an appearance in the evenings after he had finished work at the railway premises where he was employed in a whole time capacity.’2
The magistrate who first decided the case felt that this arrangement was simply a subterfuge for the Chinese accused to occupy the store – presumably his, under the table – illegally. That decision was appealed to the Transvaal Provincial Division, and the judges there did not adopt the subterfuge theory. Instead they proceeded on more doctrinally modest ground. As to the Chinese accused, the court wrote, ‘It is correctly conceded by Mr Chaskalson for the first accused that there is an onus [a burden of proof] on the first accused to establish his exemption [from the statute] on a balance of probabilities. If the matter is left in dubio [in doubt] it follows that the defence fails.’3
Exemptions were possible, but they were not possible for any ‘charge-hands, executive, professional, technical or administrative employee, manager or supervisor’. Arthur argues that the first accused cannot be a supervisor, because ‘supervising in its primary meaning and ordinary meaning connoted the presence of other persons working under the authority of the one who supervised as supervisor or an overseer, that he had to have somebody to oversee before he could supervise or be a supervisor’. The court agrees that ‘there is much to be said for that argument’, but then dismisses it from consideration on the ground that even if the first accused wasn’t a supervisor, the police evidence is at least sufficient to create doubt as to whether he was a manager – and that doubt is enough to defeat his claim. One suspects that the court’s doubt was enhanced by its observation ‘that the second accused gave evidence to the effect that the first accused really had no responsibility in the business and certainly was not a supervisor but the magistrate found the second accused a very unsatisfactory witness who was not worthy of credence and on the record I have no difficulty in understanding why the magistrate came to that conclusion’.4
What about the second accused? The statute made it a crime both for people of the wrong race to occupy an area and for other people to allow them to do so. In this case, given the conviction of the first accused, it was clear that the company to which the fish and chips store was leased had allowed illegal occupation. That was enough to ensnare the second accused, because another section of the statute makes any director of a corporate body that has violated the statute personally guilty as well. ‘In the light of that provision,’ the court writes, ‘Mr Chaskalson found himself unable to pursue the appeal of the second accused on the merits.’5
It seems fair to say that this case was very difficult to win. The law was against Arthur’s clients, and the testimony of one of them had made matters worse. The hints, or more than hints, of subterfuge hurt too. How did Arthur come to be in this situation? The last line of the case report suggests an answer. There, as is customary in South African case reports, the last line of the case lists the appellants’ attorney: A. Oshry. This would have been Arthur’s uncle Alec, an attorney in Johannesburg. For a young advocate to have an attorney in the family who sent him cases was no doubt an advantage – and yet I wonder whether it was Arthur who did his uncle a favour in taking this difficult case. I wonder, also, whether Arthur was brought into the case after it had been tried, so unsuccessfully, in the magistrate’s court; Matthew Chaskalson suspects so on the ground that at that stage Alec Oshry would have run cases in the magistrates’ court through his own attorneys’ firm.6 That would explain how Arthur came to be saddled with so problematic a case. The case also features an unsuccessful effort by Arthur to obtain an amendment of the grounds of appeal: this too might suggest that Arthur came in not only after the loss in the trial court but after the framing of the grounds for appeal. Yet it is also possible that Arthur took the case, right from the start, with all its problems, because he rightly viewed the entire case, complete with its police surveillance of the mundane operations of a fish and chips shop, as so egregiously unjust.
Certainly Arthur’s next Group Areas Act case had a very different character – though no better an outcome. This was State v. Mosoeu, decided in the Transvaal Supreme Court, on appeal from a conviction before a magistrate, in 1961. Mosoeu’s case, like Chan King’s, arose under the Group Areas Act. Between Mosoeu and Chan King, however, the law had become even worse, because the Appellate Division, then South Africa’s highest court, had given its judicial imprimatur to the enforcement of this statute in Minister of the Interior v. Lockhat and Others. Lockhat