And Justice For All. Stephen Ellmann
it was at stake. But the intensity of Arthur’s reaction, testing the trial judge’s patience quite acutely, perhaps suggests something more as well – that in this trial Arthur (and Joel Joffe) felt, in the back of their minds, that they themselves were at any moment potentially under scrutiny themselves. The witness might turn in a flash into the accuser.
In any case the trial court rejected Arthur’s proffered witnesses. But the Appellate Division concluded that the trial court had erred, and also concluded that it was possible that if the excluded testimony had been heard and taken into account, the confessions by the accused would have been excluded as involuntary. (The court commented that the accused ‘were unimpressive witnesses in their testimony of assaults’, but also observed that ‘certain trenchant criticisms can also be levelled against some of the police officers as witnesses, as [the state’s counsel] was constrained to agree.’16) That in turn meant that now the confessions had to be excluded from consideration in the case against the accused. The result was that one of the five accused was acquitted, on the ground that without his confession the evidence against him was insufficient. Meanwhile, another accused, who had never confessed, was also acquitted, the Appellate Division revisiting the evidence against him and finding it also to be legally insufficient.
To be sure, this was not a complete victory. The remaining three accused had been sentenced to 17, 20 and 20 years of imprisonment respectively, and now their convictions had been upheld. Arthur also appealed against these sentences, and the court here too was impressed by Arthur’s argument. (The court also mentioned the trial judge’s statement that the lawyers ‘had left no stone unturned’ on their clients’ behalf.17) Appeal Judge Neville Holmes wrote that ‘In the present case one is deeply conscious of Mr Chaskalson’s submissions to the effect that these are young men who apparently fell prey to inflammatory speeches of discontent and criminal design; that, as it transpired, no great damage was done; and that, if the sentences stand, they will be paying a grievously heavy price for their brief incursion into the field of sabotage.’ It is worth saying that this is hardly a political defence – and that it stands in sharp contrast to the defence that Arthur and his fellow counsel would help the ANC leaders present in the Rivonia trial then only some months in the future. Perhaps Arthur had not yet thought through the implications of representing committed revolutionaries in court; or perhaps his clients – who seem to have been more followers than leaders – did not seek a political defence but instead hoped merely for any viable defence that could be made on their behalf. In any event, Arthur’s point did not prevail. ‘All this is unhappily true;’ Judge Holmes continued, ‘but it is not the whole picture. The conspiracy was an evil one; they put their minds or hands to deeds of pitiless wickedness, reckless of the property or lives of others; and it is no thanks to them that the kindled fire did not become a raging conflagration in the centre of Johannesburg.’18
It is clear from the court’s ultimate resolution of the case that its decision in favour of the accused on the relevancy to their case of the evidence of abusive interrogation methods, used on people who weren’t ultimately put on trial, was not motivated by any kind of easy sympathy for the accused. Moreover, the relevancy issue was an important point for more than just this one case – important enough that Arthur would say, many years later, that his Legal Resources Centre colleague Geoff Budlender believed that Arthur’s entire practice at the LRC was based on two cases, of which this was one. Letsoko offered a way to prove damaging facts about the course of apartheid justice, despite the absence of direct proof; it affirmed that the context – what had happened, demonstrably, to others in parallel circumstances – could be probative as well.
This was certainly a victory for Arthur as a crafter of persuasive legal argument, but it was not only that. The force of Arthur’s legal position surely was enhanced by the evidence he was able to bring to bear that police coercion had in fact taken place: that made the court’s ruling less a matter of abstract theory than of painful and compelling fact. The evidence Arthur brought to bear consisted in part of the testimony of the accused in the case. But that evidence was bound to be – and it was – contradicted by the police, and so Arthur’s victory on the facts was also a victory for him as a cross-examiner. Judge Holmes, on behalf of the Appellate Division, described the ‘concerted investigational modus operandi’ that the defence argued had been used – featuring incommunicado detention, violations of the ‘Judges’ Rules’, and the accused and the other suspects being ‘individually taken out of the cell, by day and sometimes by night, to another room where they were rigorously interrogated and were assaulted’. As Holmes put it, ‘Reading the testimony of those appellants who had confessed, with the evidence elicited from certain of the police witnesses in cross-examination, it can be said that there were not insubstantial indications that the foregoing was the modus operandi, save that the appellants’ accounts of assaults were disbelieved by the trial Court and the police denials were accepted.’19 Or, to put the point more bluntly, Arthur did not convince the trial judge, but he did (partially) persuade the Appellate Division. Because of that, it is worth looking in some detail at the transcript of the case, for the picture it gives us of Arthur, as a young lawyer, taking on the witnesses for the state.
Let us begin with a point that has little directly to do with the content of Arthur’s questioning. This point is that while the police witnesses all testified in Afrikaans, Arthur almost always cross-examined them in English. Each witness’s cross-examination would begin with Arthur’s asking the witness if he would be comfortable proceeding this way, and with Arthur’s reminding the witness that if he wanted an interpreter, one would be provided. Arthur’s reason was straightforward: his Afrikaans wasn’t good enough for him to put his questions as he wished to in the language the police preferred to use. Some of them, it’s clear, were quite comfortable in English, but no doubt insisted on testifying in Afrikaans in part as an expression of Afrikaner authority and identity and in part to add to Arthur’s burdens. Arthur seems never to have been comfortable in Afrikaans, though he may have grown more fluent over time: twenty-five years later, he would tell me that when he had an Afrikaans-speaking witness coming up in court the next day, he always brushed up on his Afrikaans.
Why didn’t Arthur speak better Afrikaans? One possibility is that he made a conscious decision to use Afrikaans as little as possible, precisely in order to challenge the expression of Afrikaner authority implied by its use. Another is a matter of culture, somewhat less dramatic than the first explanation, though it may ultimately stem from much the same impulse: my impression over the years is that English-speaking white South Africans were less likely to be fluent in Afrikaans than Afrikaans-speaking white South Africans were to be fluent in English. The cultural and political gap between these two groups of white South Africans in the apartheid years was deeply rooted, and English speakers had both a limited need and a limited opportunity to use Afrikaans in their daily lives.
In any event, Arthur set out to cross-examine (with his friend Joel Joffe, who was junior to Arthur in the case, occasionally handling a witness). My impression from scanning much of the transcript is that as a general matter counsel for the accused had very little to go on – they had received few documents in pre-trial discovery, and the case on the confessions essentially came down to which set of claims, those of the accused or those of their interrogators, the trial judge believed. Nor did they have much time. Arthur was instructed to appear for the accused, effective 4 June 1963, and despite Joel Joffe’s motion, made the day before Arthur formally joined the case, for a three-week postponement, the trial judge granted only three days; trial began on 6 June 1963. When he encountered surprise testimony from one witness, he had to struggle to persuade the judge to give him an hour and a half over the lunch break in which to consult with his clients, before beginning his cross-examination. So the task they faced was to find, and find very quickly, ways to demonstrate that the testimony of the police was simply unbelievable.
The case may also have been a blunt introduction for Arthur and Joel to the injustices of the apartheid system. These, of course, they knew as a general matter already; they were in the case because of their willingness to handle political matters. But it is possible that the frenzied response of the police to this attempted arson attack on downtown Johannesburg took the police to new levels of brutality, and in due course to new levels of perjury as they sought to cover up what they had done. At times Arthur seems simply