And Justice For All. Stephen Ellmann
heads of argument state a particular argument and then cite passages from the record without any further explication of what those passages say. It seems that Arthur and his co-counsel were confident that the judges would read and see what the defence counsel saw in these pages. Perhaps they also hoped that as the judges worked through the citations they would make the defence arguments their own in a way that they might not have if more had been spelled out for them.
Nevertheless, the result of these efforts was mixed. On appeal in the Supreme Court five of the nine counts on which Theron had been convicted were overturned, and his sentence reduced from 52 months to 24 (and in effect to 16, because two sentences were concurrent). Not long after this decision, in early December 1967, Theron decided to drop his potential appeal to the Appellate Division and went to prison.21
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Legal struggle also continued on behalf of those who sought to use armed force, and the cases brought again illustrated both the range of efforts by those prepared to fight the state and the intensity of the government’s legal attack on these persistent opponents.
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The ANC was not the only group to turn to armed struggle in the early 1960s, nor the only group whose members Arthur represented as a result. In addition to the Letsoko case involving the Pan Africanist Congress (see Chapter Four), and the Rivonia trial about the ANC, Arthur also joined the defence team in the case of S v. Hirson and Others, which dealt with the sabotage campaign conducted by the African Resistance Movement (ARM). Many of the ARM’s adherents had been members of the Liberal Party, the last effort by liberals, including whites, to sustain non-racial politics in the face of the National Party government’s repression. As we have seen, Arthur had been a member of the Liberal Party for a short period during his student days, and Arthur and Lorraine were part of the liberal social world, and they knew Baruch Hirson and his family socially. But there is no indication of any kind that Arthur was himself involved with the ARM except as counsel in this case.
Arthur joined his friend David Soggot and another anti-apartheid advocate, Fred Zwarenstein, in this case. Each of them represented a different accused: Soggot represented Baruch Hirson, a Trotskyist; Zwarenstein represented Arthur and Lorraine’s friend Roman Eisenstein; and Arthur represented Hugh Lewin, a Liberal.22 (A fourth accused, Fred Prager, was acquitted.) The trial began in late 1964 and was over by 1 December of that year, almost two months before Bram Fischer would estreat his bail and go underground. The case became notorious because an ARM member, Adrian Leftwich, quickly broken by the state’s interrogation, testified against his friends and colleagues, sealing their fate. Leftwich’s testimony was so damning that after it the accused changed their plea to guilty, in the hope of winning lesser sentences as a result. Baruch Hirson remembered Leftwich as ‘unswerving, mixing lies (where necessary) with truth’.23
The case in fact was scandalous in another way as well. As Hirson writes:
The defence team was called to the judge’s chambers and asked whether they knew that members of the Special Branch were discussing the case with men who were to be called as witnesses. This had not been observed by our lawyers, and it was a valuable piece of information. At our advocates’ request, witnesses and members of the Special Branch were called to give evidence on whether they had consulted together. Each one denied the imputation, and the case resumed. The one person who knew that they were lying was Judge Bekker.24
This intervention by the Special Branch, and its discovery and revelation by the trial judge, were a blunt – though not unique – departure from the rule of law.
Presumably balancing the impact of Leftwich’s testimony with the revelation by the judge, the lawyers counselled their clients to make statements to the court seeking mitigation – rather than ‘proclaim[ing] a revolutionary message’.25 Roman Eisenstein remains outraged by his lawyer’s blocking him from speaking as he wished.26 But the sentences, which could have been very long, were relatively short – five years for Eisenstein, seven for Lewin, and nine for Hirson. Not surprisingly, Hirson recalls being appalled by a sentence of ‘more than 3000 days, an unimaginable period’, but he remarks that ‘Our lawyers were jubilant, and in retrospect, I see they had cause to be pleased’.27
Hirson’s book also offers an intriguing insight – albeit from a client’s point of view – into the lawyers’ approach to the facts. He writes:
One rule was clear. Both sides would bend and twist the facts to favour their clients. It was not the ‘truth’ that would decide the case but the argument that could stand up to scrutiny in court. It sounded strange, but it was no stranger than the laws that governed the country and, from our vantage point, no more peculiar than the falsehoods we were to hear from the Special Branch. From our point of view as much blame as possible was laid at the door of Rhoda [Prager], long since dead, and of [Denis] Higgs, who had been returned to Zambia as the result of an international outcry over his having been kidnapped.28
He adds that the accused followed the same approach in their post-conviction statements in mitigation.
No doubt this did sound strange, but it does not on the face of it reflect any departure at all from the norms of ethical legal practice. If it is possible to argue that the evidence before the court shows that someone other than the accused is the true wrongdoer, the lawyer for the accused is free – even obliged – to make that argument. Even with a confession from a client, South African rules of ethics provide that counsel ‘may appropriately argue that the evidence offered by the prosecution is insufficient to support a conviction’, though he or she ‘may not … set up an affirmative case which he knows to be inconsistent with the confession’.29 Assuming that the accused here confessed (which Hirson does not directly assert), then if counsel had ‘known’ that some claim they were making amounted to ‘an affirmative case … inconsistent with the confession’, that would have raised ethical questions – but it is unlikely that they ever reached that point.
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In the mid-1960s, Arthur represented an ANC guerrilla, Joe Gqabi, and others charged similarly with leaving the country to seek military training. Joe Gqabi was a journalist, activist and an ANC guerrilla. In April 1963 he was tried in Pretoria Magistrate’s court on a charge of leaving the country without a permit. Gqabi represented himself at trial, and cross-examined with some passion a police witness who contended that he was a member of the ANC. But that point, however inflammatory, was ultimately irrelevant to whether Gqabi had left the country without a permit, and this he admitted he had done, arguing in an unsworn statement that he left the country in the hope of getting work as a journalist and that he did so without a passport because he ‘believed that the police would not give me a passport’ – a very plausible supposition on his part.30 For this offence Gqabi was sentenced to two years’ imprisonment, the maximum possible; he appealed, was re-sentenced (this time to two years minus time already served), appealed again and lost, despite the assistance of Ernie Wentzel.
Two years later, in May and June 1965 – while Bram Fischer was still underground – Gqabi was tried again in the Transvaal Supreme Court – this time not for leaving the country but for having ‘consented, or attempted, or taken steps to undergo military training which could have been of use in furthering the achievement of the objects of the African National Congress (or the Umkonto we Sizwe)’.31 For the state to have divided up its prosecutions in this way was oppressive, but apparently could not be successfully objected to. Gqabi was charged along with three others who had also allegedly been part of the same effort, Henry Makgothi, Samson Padana and Michael Mahlangu. George Bizos and Arthur Chaskalson represented all four of the accused, but the trial court ordered Gqabi’s case separated from that against the other three. Trial against these three went forward, while the state ‘elected … to try Joe Gquabi [sic] on wider allegations at a later stage’.32
George and Arthur divided the labour of the case: George did the cross-examination of all or almost all the witnesses, while Arthur mastered the law and the facts so as to give the closing argument on behalf of the accused. The trial judge referred