And Justice For All. Stephen Ellmann
was back in police hands, and Letsoko said that Vermeulen had in fact threatened him in this way as they made their way from the cells to the magistrate’s office.32 Trying to head off this charge, Vermeulen at one point denies speaking with Letsoko at all while taking him to the magistrate. Then he acknowledges talking with him, but insists he didn’t discuss the trip to the magistrate. In fact he denies even giving Letsoko directions as they walked. Arthur is incredulous:
And when you got there didn’t you tell him we must go in here … this is where the Magistrate is? – Vermeulen: No, I took him directly to Room 401 … I mean you didn’t drag him along the street behind you did you? – Vermeulen: No, I didn’t.
He had to walk alongside you? – Vermeulen: That’s right.
And he had to know where you were going? – Vermeulen: Well, I took him, this isn’t for him …
Yes but you had to tell him where to go didn’t you – Vermeulen: No, I was with him, Your Honour, it wasn’t necessary for me to tell him where he must go.
How did he know where to turn to the left? – Vermeulen: I walked with him.
And when you turned to the left he had to follow? – Vermeulen: Yes.
And you didn’t say to him: We are turning left here? – Vermeulen: No, I didn’t.33
I have the impression that Arthur becomes blunter as the trial goes on. For example, when Officer Els admits that he could have had contact with other witnesses – despite having earlier asserted on direct examination that he did not – Arthur asks him for an explanation. Els says that he thought the prosecutor was only asking him whether he had contact with other witnesses at the same time that he was taking one witness’s statement. Arthur responds:
And that is why you gave the answer which you did? – Els: It is.
Are you being serious, Mr Els – are you being serious when you give that as your explanation? – Els: This is correct, Your Honour.
Because I shall have to argue to His Lordship that that is quite a ridiculous explanation and that it shows that you are an unreliable witness – is there any other explanation you can give? – Els: This is all that I can say.34
That’s pretty blunt, and it may reflect that Arthur had grown weary of the officers’ lies.
Since Arthur was clearly capable of bluntness, we might ask why he was not always so blunt. The clearest example of his not adopting a confrontational tone may be in his approach to ‘putting’ an accusation to a witness. South African rules of cross-examination require that the lawyer seeking to prove an assertion must at some point explicitly ‘put’ that assertion to the witness and give the witness the opportunity to deny and refute it directly. One can imagine moments of great forensic drama, as an advocate righteously proclaims, ‘I put it to you, sir, that you beat my client and forced him to sign a false confession.’ Arthur does not do this, though there were many moments when he could have. Instead, he tends to put points to witnesses much more gently, as in this passage where he is probing Warrant Officer Weyers’s explanation of the reasons why Napoleon Letsoko was so helpful to the police when they didn’t have much evidence with which to pressure him into cooperating:
So although there was at that stage no direct evidence against him, he became helpful – that is so isn’t it? – [Weyers]: This is correct.
And you can’t give any explanation as to why this happened? – [Weyers]: No, Your Honour.
You see accused No. 1 says that the reason why he pointed out people and gave statements was because he had been assaulted? – [Weyers]: I deny any assault on him.
Are you speaking of yourself only? – [Weyers]: Yes, I did not assault him. You didn’t assault him. Because he says that you did assault him? – [Weyers]: I deny this.35
Perhaps Arthur’s seeming reluctance to say flatly, or to proclaim aggressively, the points he is putting to Weyers is an expression of his personal desire to treat each person with courtesy, a disposition that only prolonged police evasions could defeat. But it is also possible that his hesitation was always strategic. As Arthur gently put assertions on his clients’ behalf to the police, perhaps he hoped that they would not be as wary of his questions as logic said they should be – and that this would leave room for his devastating logic to sweep the ground from underneath them.
In all of this, Arthur fought, and fought hard, for his clients. No one watching the trial could have doubted Arthur’s commitment to his clients’ defence. It is striking, though, that in the course of the trial lawyers for both sides, and the judge, address African witnesses by their first names. For example, in his judgment in the case, the trial judge refers at one point to ‘Samson’ (Samson Radebe, an African) and then two lines later to ‘Middleton’ (Leonard Middleton, a white).36 When Joel questions Napoleon Letsoko on direct examination, his first question begins, ‘Napoleon, you are accused No. 1 in this case …?’ Similarly, in the course of his cross-examination of a state witness named Samson Radebe, Arthur at one point says, ‘All right. Tell me, Samson, did the police say what would happen if you gave evidence here?’ Perhaps this was strategic – Arthur and Joel Joffe may have felt that using these witnesses’ first names in one way or another was more likely to elicit their cooperation than referring to them as ‘Mr Letsoko’ or ‘Mr Radebe’. (At another point Arthur, questioning a white witness who has used the word ‘boy’ to refer to blacks, refers to ‘these two boys’; presumably his reason for doing so was to avoid a tangential clash with the witness.) But I think it is more likely inadvertent – that is, this is the behaviour of young white men still emerging from an upbringing in which addressing African adults by their first names would have been taken for granted. Arthur and his friend Joel Joffe were still relatively new to the practice of law; perhaps in a sense they were even newer, long ago in 1963, to the practice of egalitarianism.37
It is also important to place these moments in the context of the trial and the behaviour of the prosecuting counsel. The original prosecutor, Masters, says to the second accused, Michael Maimane, who has forgotten the name of the movie that he says he saw at a theatre on the crucial evening for the case, ‘You must be more stupid than I put to you in the beginning …’38 When Masters withdrew from the trial, advocate Krog took over the prosecution. Krog cross-examined the first accused, Napoleon Letsoko, and often quite aggressively. At one point they clash over which language Letsoko speaks better, English or Afrikaans:
Krog: Yes, and your Afrikaans is very equivalent to your English? – Letsoko: I cannot say.
Krog: Well which of the two languages do you speak better? – Letsoko: Well in the office where I worked mostly in English and there only English was used.
Krog: Napoleon, once again, please don’t waste the Court’s time, I didn’t ask you what language you speak in the office, I asked you whether your Afrikaans was up to the same standard as your English? – Letsoko: I think I am better in English, my lord.
Krog: But you have a good knowledge of Afrikaans? – Letsoko: I have. Krog: You see it has taken me 3, 4 questions to get one answer out of you.39
Even Arthur, the most polite of courtroom lawyers, is capable of sharp impatience directed against a witness. But it is hard not to read the hostile personal tone of this particular passage as being, fundamentally, about race.
Because of an illness among the police witnesses, and because of the sheer bulk of this case, it ran for quite a long time. Proceedings began on 3 June 1963; after conviction, the accused were granted leave to appeal on 7 November 1963. Well before this trial ended, Arthur would join the Rivonia defence team; the police raid on Rivonia took place on 11 July 1963, and the lawyers who would represent the accused had assembled by late September of that year.40 That case would be tried to judgment, and much in Arthur’s life would change, before he would argue the Letsoko appeal in September 1964.