And Justice For All. Stephen Ellmann
distinction between criminal conduct that reflects dishonesty, and conduct that does not. In Bram’s case, there was no question of dishonesty. Everything he did was from a principled position. Whether you agree with him or not, it is difficult not to admire the consistency in his conduct, and the integrity which led him to place principle above personal security and well-being.86
Arthur’s point in focusing on dishonesty here, I believe, is that Bram acted out of principle rather than from some lesser motivation. I don’t think he meant to say that any act involving false statements, for example, was unjustifiable, because later in his email he suggested a comparison of Fischer’s actions with ‘members of the resistance against the Nazis who committed any number of “crimes” in the execution of their resistance. Apart from the acts of sabotage, they created false documents, stole property [from] the Germans, lied about their activities etc. There may even have been lawyers amongst them.’87 Surely it is, indeed, inconceivable that someone who created false documents to save Jews from extermination thereby demonstrated ‘dishonesty’.
That Arthur recognised circumstances in which even the creation of false documents or the telling of lies – acts normally taken to reflect dishonesty – could be morally justified is hardly extraordinary. It is also worth noting that Arthur did not include these actions in the list of the acts of law-breaking that ‘many South African lawyers’ would have committed. A person who violates the law out of principle cannot violate all laws; he or she must assess whether principle justifies the violation of each particular law that comes into question. If legal work can be fruitfully done without lying, then lying is not justified – even if other acts, perhaps at first blush graver than lying, such as shielding fugitives from the police, are quite legitimate. Arthur’s email does not suggest that he or those who shared his convictions considered their preparedness to act falsely as anything but a very last resort.
That still leaves considerable room for manoeuvre. Rules might be obeyed in form but not in substance – as in the Rivonia advocates’ selection of their attorney, who in turn formally selected them. Clients whose testimony might not have been true could still be represented as long as the lawyer did not know that their testimony was false – and even if the lawyer, by advising the client about the legal situation that he faced, might have educated the client about what falsehoods could be to his advantage. For Arthur, though not for Bram, that may have been the understanding he had of the Rivonia clients’ testimony on Operation Mayibuye. And in years to come, Arthur and the other lawyers who handled political cases in South Africa all seem to have tacitly concurred in accepting the financial support of the International Defence and Aid Fund, which for many years delivered its support – by then illegal under South African law – in the guise of donations from individuals of good will.
Arthur’s friend and Legal Resources Centre colleague Geoff Budlender similarly reflected on the Defence and Aid funding. In the NUSAS trial (which we will look at in Chapter Nine),
a letter arrived from [a] … solicitor in London, who said I have a client in Geneva, … who’s a professor … who’s very concerned about academic freedom … and … and he wants to support academic freedom in South Africa. I believe you have some clients and … er … what’s the case gonna cost? What everybody knew then was that it wasn’t from the professor from Geneva … it was obviously from the [Defence and Aid] fund.88
Budlender, who was an articled clerk at the time, commented: ‘I don’t think anyone thought too hard about it. Well, I didn’t. I was a baby in the game … Arthur must have thought about it. He must have figured it out.’ And looking back, Budlender said they had been ‘sailing close to the wind … It didn’t feel like that at the time.’89
But if Arthur in principle accepted that ethical lawyers might sometimes break the law for the sake of justice, as Bram Fischer had, he surely did not conclude that he should follow Bram’s path of defiance of the law. In the years to come, he would earn a reputation for exceptionally scrupulous law practice, and for similarly law-minded behaviour in his private life. The moments when he dramatically crossed or almost crossed clear legal lines all belonged to the period before Rivonia. After Rivonia, he charted a different course, one that made him an advocate of standing and influence, able to employ South African law in new and powerful ways against South African injustice. The course he chose safeguarded that powerful position by very carefully ensuring that the law could not become a weapon against him. He was still capable of reading the law to permit obedience in form but not in substance, as he seems to have done in accepting funding from a ‘Geneva professor’ in the NUSAS case, but he did not simply depart from the law. No doubt his real and deeply felt commitment to the law was in itself reason for others to respect the lines he drew between what the law prohibited and what it (perhaps just barely) permitted. Whether Bram Fischer urged Arthur to follow this course we will never know; but in the chapters to come we will see that Arthur indeed did proceed on this path. We will see, moreover, that doing so involved considerable delicacy in drawing lines between what could and what could not be done; it required, in short, a lawyer of Arthur’s skill.
There is one more point to consider from Arthur’s email to me. This is his objection to a comparison I drew between Bram Fischer and Oscar Wilde. With my father Richard Ellmann’s sympathetic understanding of Wilde in mind, I wrote (in the published version, which may have differed somewhat from the draft Arthur read): ‘The sense that Wilde stood for principle even as he violated the law … resonates with the life that Fischer led, and each became an avatar of a liberation he would not live to see. Moreover, Wilde, who was a socialist as well as an artist, may in his own way have had a moral rigour quite comparable to Fischer’s.’90 Arthur responded:
The problem I have with the comparison with Oscar Wilde is that he led a life of great personal indulgence; Bram did not …
I also think that the comparison you draw may be misunderstood here, and hurtful to many people. Many will see Wilde as he is often depicted as self-indulgent, pleasure seeking, and concerned primarily with his own interests, and may understand the last part of your article as trivializing Bram’s commitment.
Whether Arthur (or I) was right or wrong in this debate is not my concern now. Rather, what seems most important about what he said is that it reflects how deeply attached to Bram Arthur remained, a quarter-century after Bram’s death, and that it is clear how much Arthur weighed in his moral calculus the issue of whether someone was acting out of duty or self-indulgence. What Arthur admired in Bram he would insist on in himself. He would always try to act out of duty.
After Rivonia: Arthur’s Practice
For almost a year, in 1963–4, Arthur worked constantly on the Rivonia defence. When that case came to an end, the world in which Arthur now lived was one in which the state had transmuted the law ever more thoroughly into a source of oppression – supplemented, all too often, with brutality and torture as well. The political movements opposed to apartheid were in the process of being beaten into what appeared, at least, to be submission. And so the question faced Arthur: what would he do?
He and Lorraine might have chosen to leave the country. Many people did, including Joel and Vanetta Joffe as well as others, less political, such as Arthur’s university friends Sydney Lipworth and Mark Weinberg. Arthur would say, years later, that he did not disapprove of others leaving, and that he felt that it wasn’t possible to impose political strictures on life choices of this sort. But Arthur and Lorraine did not leave. They would consider leaving, when Lorraine grew very worried about their two sons facing conscription into apartheid’s army. Arthur, always practical, responded that he did not want to leave, but that if she felt they must, they would, but he said that their departure would have to be planned, so that he could move his practice from South Africa to Britain. And once the