And Justice For All. Stephen Ellmann
teenage boys and young men who were their likely viewers. The judge observed
that anything which has a sexual affinity will contribute towards the sexual inquisitiveness of young people and in that way might be said to cause an awakening of the sexual urges in them. I agree, however, with Mr Chaskalson, that such a reaction in normal young readers must be appreciable and in contra-distinction to the normal awakening or development of sexual urges in them.7
This decision to recognise that the normal awakening of sexual urges is not depraved or corrupt was not enough, however, to defend the publication of four magazines for which Arthur decided to abandon the appeal – nor a fifth, in which an article suggesting that men could easily hypnotise women and have sex with them was held to be ‘indecent and obscene, and … offensive and harmful to public morals’.8
SA Magazine Co. was an anti-apartheid case only in the sense that each assertion of liberty was a challenge to the social power of the state. More than a decade later Arthur would handle a second censorship case, S v. Moroney, which was more directly political. The items in question here were two issues of the Wits Student, publications of the Student Representative Council of the university – and presumably more concerned with politics than with sex. We do not know for certain, however, because of the terms of the statute under which the Wits Student editor was prosecuted. This statute, the Publications Act 42 of 1974, forbade anyone to ‘produce an undesirable publication’ and specified that ‘A notice published in the [Government] Gazette stating that a publication … is in terms of a decision of a committee [appointed from time to time by the Directorate of Publications] undesirable, shall for the purposes of this Act be sufficient proof of the undesirability of that publication or object’.9 Based on its reading of this statute, the state contended that the decision of the committee that these two issues of the Wits Student were undesirable was essentially conclusive.
Arthur argued this case in May 1978, when (as we will see) he was also busy with a major terrorism trial. The statutory language seemed forbidding, but Arthur argued that if it meant all that it seemed to say, it would be ‘in conflict … with the fundamental principles of justice as administered by our Courts’. He invoked principles of statutory interpretation, among them the rule that ‘a court will … presume that Parliament does not intend an unreasonable or unjust result’. 10 The court responded, posing the question whether the statute was ‘intended, as appellant’s counsel [Arthur] argues, as an aid to the State in proof of the fact that an accused had produced an undesirable publication or was it intended to render the committee’s decision conclusive proof of such fact?’ 11 The court accepted Arthur’s view, saying that ‘sufficient proof’ meant prima facie proof, but not ‘conclusive’, irrebuttable proof. Along the way the court had to deal with the fact that the Afrikaans text of the statute – the one signed by the State President and therefore authoritative – seemed closer to declaring the committee’s decision ‘conclusive’.12 The court decided that it could harmonise the two texts by taking their lowest common denominator: since both agreed that the committee decision amounted at least to prima facie proof, that would be the statute’s meaning. And since the magistrate in the original trial had treated the committee’s decision as conclusive rather than just prima facie evidence, Moroney’s conviction and sentence were set aside.
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In Wentzel v. SA Yster en Staalbedryfsvereniging; Wentzel v. Blanke Motorwerkersvereniging, Arthur assisted Sydney Kentridge, who by then had taken silk, in representing the prominent liberal advocate Ernie Wentzel, a close friend of Arthur’s who was a leading member of the small group of anti-apartheid lawyers of which both Arthur and Sydney were also part.13 Wentzel himself was, like many members of the Liberal Party, a radical opponent of apartheid. He was detained by the government during the 1960 state of emergency following the Sharpeville killings, may have played some part in the re-evaluation of non-violence that the government’s repression triggered, and in 1963 urged the Liberal Party to rename itself as the Socialist Party of South Africa, to reflect its ‘social democratic character’. In 1964, in addition to bringing this defamation case, he was detained again, and this time was interrogated by the security policeman Swanepoel – whom we have encountered before – and suffered a heart attack while in detention.14
For his efforts Wentzel ‘was subjected to the abuse and vilification that was the lot of the liberal’.15 But he sought and received damages (R3,200 plus costs – a significant sum) based on a 1963 article in a publication called The SA Worker which, he contended, linked him to Poqo, a militant revolutionary group connected to the Pan Africanist Congress, and portrayed him as someone who approved of murder and violence. The case was argued on 30 November and 2 December 1964 but not decided until 13 March 1967, more than two years after it had been argued. The judgment, which engaged with the complex South African defamation doctrine of animus injuriandi, essentially declared that even if the defendants had no intention to unlawfully defame Wentzel – because their objective was merely the ‘lawful’ one of ‘in large part stopping racial equality in trade unions’ – they had gone well beyond the bounds of legitimate advocacy for this purpose and so they were indeed guilty of defamation.
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After Bram Fischer was captured, he was convicted in a trial that began in March 1966. Arthur was engaged in another political case, and so could not play a full part in Fischer’s defence; that trial was the case of Johannes Andreas Theron, in which Arthur appeared as a junior counsel, led by a more senior advocate, J.F. Coaker.16 It’s a measure of the extent of Arthur’s involvement in political cases after Rivonia that this was at least the second time in less than two years that Arthur was engaged in two political trials at the same time.
Theron was a senior warder at the Cinderella prison in Boksburg, and he had done something that outraged the National Party government: he had provided the Rand Daily Mail, the liberal, English-language Johannesburg newspaper, with information about brutal mistreatment of prison inmates, and the paper had published a series of articles based on his testimony. In retaliation, the government launched prosecutions of all the sources for the paper’s prison stories, and of the editor, Laurence Gandar, and the reporter most responsible, Benjamin Pogrund.17 The trial of Theron was a dramatic affair, full of charges and counter-charges. In his cross-examination of state witnesses, Arthur put to at least two of them that their entire testimony was false.18
In final arguments at the trial, Arthur clashed with Percy Yutar, the lead prosecutor in the Rivonia case who was prosecuting this action as well. Arthur complained that Yutar was interrupting his argument inappropriately, and at one point commented, ‘I’m afraid my learned friend [Yutar] is again wrong.’ At another moment, Arthur addressed a particular piece of evidence and said, ‘Well, I don’t understand it. Either it didn’t happen or the evidence is deliberately perjured.’19 But Theron was convicted in the magistrate’s court on nine counts and sentenced to 52 months in prison.
The argument of the appeal in the Supreme Court took seventeen court days. Percy Yutar presented most of the argument for the state. At one point he argued that some of the evidence cited in the defence heads of argument didn’t in fact support the defence position. He disclaimed any intent to say that these mistakes were intentional. ‘On the contrary,’ he was reported to say, ‘he was amazed by the amount of hard work the defence had done, and he was certain that no client could have expected more of counsel.’20 Compliments to the defence from the prosecutor should not necessarily be taken at face value, but Yutar was not wrong about the extent of the effort the defence had made in preparation.
The work of Theron’s counsel can be seen in the 181-page draft of the heads of argument on appeal that they prepared. This document, which was part of Arthur’s papers and which is extensively marked up in his hand, was probably primarily Arthur’s work; junior counsel were typically responsible for working through the details of a case, though few could have worked through them as thoroughly as Arthur did here. The draft parses the record, thousands of pages in length, in great detail. It bluntly and extensively attacks the credibility of the state’s witnesses. It also reflects a striking