And Justice For All. Stephen Ellmann
and Lorraine might also have chosen that he should step back from taking political cases. It would not have been strange if Arthur had found the intensity of the Rivonia trial so draining that in its aftermath he would move away from this kind of work. Certainly life in South Africa would have been simpler had he done so. But again this was not the course he followed. While he did not embrace political cases as the sum and substance of his practice – as his close friend George Bizos did – he made himself a part of many of the most important and politically charged legal controversies of his day. No one I have spoken with describes him as having pulled back; rather, it seems more accurate to say that, having found a new level of political commitment through the Rivonia trial, he now pressed forward with such work. Indeed, Arthur’s own political engagement may have been deepening in these years, as some of the matters in which he became involved suggest.
The decision to stay in South Africa was not, of course, just a decision about work. It was also a decision about life. Arthur and Lorraine would soon have two sons; Matthew was born in 1963, shortly before the Rivonia trial, as we’ve seen, and his younger brother Jerome would arrive in 1967. Arthur and Lorraine would make a home for themselves and their sons and seek to lead happy and rewarding lives, in the midst of apartheid.
In these years Arthur took on a wide range of political cases, which meant that he represented many, perhaps most, of the various groups still seeking to challenge apartheid in South Africa. As we look at these cases, we will be examining Arthur’s history, but also in some measure the history of the country. At the same time, it is important to keep in mind that these political cases were by no means all of Arthur’s work in these years, nor even all of the work of political significance that he undertook. We will look at both his surprisingly political Bar activity and at the commercial, non-political side of his practice in the latter part of this chapter.
The cases we are about to examine, political and non-political, make up a disparate group. That surely reflects Arthur’s tremendous ability to master the facts and law of one case after another. Each, undoubtedly, was significant – at least for its clients, and sometimes more broadly – and probably most also presented lawyering challenges that were interesting and challenging. They were all worth doing. They were also hard-fought; in one case, an attorney’s house was fire-bombed; in another, Arthur clashed sharply with Percy Yutar, his Rivonia antagonist.
But it is fair to say, as well, that during these years Arthur’s work had no one substantive focus. I think he himself felt that, and that this recognition was part of what led him to the next step in his career, the founding of the Legal Resources Centre (LRC) – where it would be possible for Arthur to shape not only his own work but an entire institution towards a focus on challenging the injustices of apartheid. That day would not come until 1979, however, and to understand what Arthur came to achieve we first need to see what he did in the difficult years between the end of the Rivonia trial in 1964 and the founding of the LRC fifteen years later. Let us turn first to the cases in which he represented clients whose offences were non-violent, then to those in which his clients were part of the resistance to the state, and then to Arthur’s decidedly political work as a member of the Bar Council. Then we will see that Arthur’s political work shifted from a part to something closer to the whole of his litigation; and finally we will be in a position to ask why Arthur, initially not focused on any single area of courtroom work, came to concentrate over two full years on handling just two political cases.
*
Arthur undertook several reported cases representing clients charged with non-violent offences. (There may well have been others that Arthur handled, but that weren’t reported in the law books.) Perhaps what stands out most about them – together with the cases in which he represented people who were guerrillas, plain and simple – is that Arthur became involved in a wide range of the political struggles that persisted during the years after Rivonia. The fight to use law against itself had not ended, and Arthur was one of the small number of lawyers who continued it.
*
In S v. Beyleveld and Others, a case that he argued in November 1963 – during the Rivonia trial – Arthur represented three members of the Congress of Democrats (COD) on their appeal to the Supreme Court from the lower, magistrate’s court. The COD was the white organisation of the Congress Alliance; the alliance, led by the African National Congress, which also included Indian and Coloured organisations. Many white Communists joined the Congress of Democrats, and in fact two of the accused in this case, Piet Beyleveld and Ben Turok, were certainly Communists as well as, respectively, president and national secretary of the COD; the third, Eve Hall, was the secretary or regional secretary of the COD.
Their ‘offence’ was to bluntly advocate, and seek to persuade their Johannesburg City Council representatives, that the National Party State President of South Africa, C.R. Swart, was unfit to receive the honour of being voted the freedom of the city. That led to their being charged with committing acts ‘calculated to violate the dignity or injure the reputation of the State President’.1 Despite deft arguments by Arthur that this statutory language should be interpreted narrowly – arguments the appeal judges congratulated, saying Arthur as counsel had ‘argued the case very ably’2 – the court declined to narrow the statute and instead concluded that the word ‘calculated’ did not mean ‘intended’ but merely ‘likely’. Once that decision was made, the case against the accused was hard to refute, and the appeal failed. For their acts, all three were sentenced to fines of R350 or 175 days in prison, and the appeal judges, noting that the maximum sentence provided by the statute was R5,000 or five years in prison, declined to disturb this sentence.
In taking this case, Arthur was representing three very dedicated activists. Eve Hall had already been convicted in 1962 for the offence of writing slogans or pasting posters on public walls, for which she was sentenced to six months’ imprisonment. In 1964 she and her husband were banned and had to leave the country. Ben Turok, who had been one of the accused in the Treason Trial of the late 1950s, was already in prison at the time of S v. Beyleveld, since he had been sentenced to three years’ imprisonment for violation of the Explosives Act in 1962.3 Placed under house arrest after his release from prison, he would flee the country in 1966, but after the end of apartheid he became a member of Parliament as a member of the ANC. Meanwhile, Piet Beyleveld’s fate would be quite different: he folded under interrogation and agreed to become a witness against Bram Fischer in the latter’s criminal trial. Fischer, communicating with Beyleveld through notes smuggled into jail with his laundry, tried to persuade him not to testify, but without success. Sadly, Beyleveld would agree at trial that Fischer had ‘a saint-like quality’, even as he testified against him. Later he would testify for the state in other trials as well.4 His online biography says that after the Fischer trial, ‘Beyleveld encountered total ostracism and condemnation. He went to work in his wife’s office services business and faded into obscurity.’5
*
Arthur at least twice undertook appeals against censorship cases brought by the state, and in both he was able to persuade the court to adopt interpretations of the sweeping statutes at issue that limited their reach. These cases typified the surprising resilience of common law principles of statutory limitation that operated to constrain the oppressive intentions of legislators – a resilience that was ultimately the basis for the practice of anti-apartheid law. Ironically, Arthur also took, and won, a case limiting free speech on common law grounds; here the law operated, unusually, to protect the speech of an opponent of apartheid. But the most intensively litigated of these cases, in which the record extended over thousands of pages, again dealt with the suppression of speech, and led to the imprisonment of a speaker who had testified about conditions in the prison where he was a warder.
In the first case, SA Magazine Co. (Pty) Ltd v. Publications Control Board, which was reported in 1966, Arthur represented the publisher of a series of magazines said to ‘deprave or corrupt a substantial number of the average readers, and more particularly of the average teenage readers’.6 Here Arthur defended a number of publications, including several ‘made up of pages of pictures of female figures’ who were ‘scantily clad’ and whose pictures were ‘calculated to draw attention to their breasts and/or private parts and