And Justice For All. Stephen Ellmann
years of imprisonment with hard labour. It seems reasonable to infer that Arthur also drafted the 35-page ‘Application for Special Leave to Appeal and the Making of a Special Entry’, submitted in July 1965 to the Appellate Division after the trial judge had denied similar requests.34 This application laid out a detailed argument to demonstrate the failings of the state’s case.
Meanwhile, Joe Gqabi would go on to be tried not only for seeking military training but for sabotage, and would serve ten years on Robben Island. News coverage confirms that George and Arthur represented Gqabi in this trial.35 They did not prevail, but somewhere in the course of his legal journey, Gqabi came to appreciate Arthur’s legal skill and, as we will see, he would insist on Arthur’s representation the next time he came before the courts, beginning in 1977, in the Pretoria Twelve case, discussed later. Arthur for his part developed ‘the highest regard’ for Gqabi, who would ultimately be shot dead by apartheid security forces while in exile in Zimbabwe in 1981; Arthur ruefully recognised that if he had not secured Gqabi’s acquittal in the Pretoria Twelve trial, Gqabi would have been ‘safe’ in prison.36
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In the Rivonia trial, Arthur had represented Nelson Mandela and come to greatly admire him. Now Nelson was in prison on Robben Island, but his wife Winnie was blazing her own trail as an outspoken, though sometimes erratic, activist force. Arthur represented her in at least three separate cases.
The first was the most dramatic. The case would be known as S v. Ndou; Samson Ndou was one of Winnie Mandela’s co-accused, and Joel Carlson, their attorney, writes that Ndou ‘had only been chosen as the first defendant so that the name Mandela, which had so often appeared in court, would not now again appear on the court records’.37 Winnie Mandela and 21 others were detained without trial in 1969 – ‘her first major period of detention’. She was brutally interrogated and, according to her biographer Emma Gilbey, she broke.38 That was hardly extraordinary, for the police broke almost everyone.
Meanwhile, something else that was quite extraordinary happened while she was in detention: the state developed a scheme to separate her from Joel Carlson, the dedicated anti-apartheid attorney who had represented her in the past. Instead, an attorney named Mendel Levin, a flawed figure with a background of fraud, secured a power of attorney from her. Carlson reports that she went as far as to write to supporters in England saying that he (Carlson) was ‘not to be trusted’ and that Levin was now the attorney for the accused in the case. Mandela, however, recovered her footing, and when she finally appeared in open court she swiftly dispatched Levin and retained Carlson once again as her attorney. Carlson suspects that the state hoped to use Levin to induce Mandela and her co-accused to accept convictions in return for light sentences – but Mandela was determined to fight the case. Carlson briefed David Soggot, George Bizos and Arthur Chaskalson – whom he described as ‘one of the most brilliant advocates at the Bar’ – for the defence.39 George Bizos recalls that the fact ‘that Arthur Chaskalson and David Soggot were on the case further eased [Nelson] Mandela’s anxieties’; George knew this because he had gone to visit Nelson to discuss the case.40
Trial began; the case became known as the ‘Trial of the 22’.41 With the very first witness, the defence faced a choice: should they try to bring out in cross-examination the torture that the state’s witnesses had been subjected to? Such a step might backfire, if the witnesses – terrified of what might happen to them when they returned to the cells – denied having been tortured. But they decided to try, and were able to extract from a British witness, so terrified that he could scarcely be heard in the courtroom, that he had been forced to stand for 48 hours non-stop while he was interrogated, and had been assaulted by the police as well. Once they had opened the door, defence counsel were able to continue on this course, and they elicited additional testimony about state torture from the state’s own witnesses.42
Late in the year the court adjourned till mid-February. Bizos writes that ‘as our clients remained in custody, Arthur Chaskalson, David Soggot and I visited them regularly to prepare their defence’. But when the case resumed, suddenly and without warning the state moved to withdraw the charges, the trial judge accordingly ordered the accused acquitted – and then the security police returned the accused to detention without trial.43 Their continued detention ‘became quite a major cause célèbre’ and prompted student demonstrations including a march on John Vorster Square, the police headquarters. During these protests Glenn Moss was arrested for the first time; a few years later he would become a client of Arthur’s too.44
Over three months later, new charges were filed against almost all of the accused, and against one other person who had no direct connection with the accused or the case against them whatsoever. The state’s hope was that the new indictment would be the basis for restarting the trial, despite the earlier acquittal. By now Arthur was no longer in the case, but his friend and colleague Sydney Kentridge succeeded in demonstrating to the trial judge, through a three-day argument, that principles of double jeopardy (in South African terms, autrefois acquit) required the acquittal of all the original accused.45 And then, within a few days, Winnie Mandela and her co-accused were served with banning orders, which broadly speaking ‘meant they could not make any formal plans to meet one or more persons, anywhere at any time, during the next five years’.46
Meanwhile, during the trial, there had been one other important development: the home of the attorney, Joel Carlson, was attacked one night with a Molotov cocktail, while his carport and car were shot at. The house did not burn down, but that did not seem to be due to any restraint on the attackers’ part: the Molotov cocktail ‘had been thrown at the study window’ – the study being full of papers – ‘but had hit the stone wall underneath and exploded against it’. Carlson did not realise what had happened till the next morning; then he called George and Arthur and they were soon on the scene. Carlson did not dare to state to the authorities what he was sure was the truth, that the police themselves were behind the attack – because he feared being taken in for questioning by the security police himself. If there was any doubt in the lawyers’ minds about the potential risks they were running, this attack made their situation clear – and fortunately did not result in any injury or loss of life. Carlson’s office would soon be shot up too, and an explosive device sent to him in the mail. Carlson would leave South Africa in 1970, followed soon by his family, and not expecting to return until apartheid ended.47 The effort by the Ndou police or prosecution to trick Winnie Mandela into accepting representation by someone who amounted to an impostor, Mendel Levin, was of course a clear breach of the rules of legal practice – but a fire-bombing was even worse.
After the Ndou case, Arthur continued to take cases on Winnie Mandela’s behalf, with George Bizos. She was now banned. Bizos writes that her ‘acquittal only made the authorities more determined to get her behind bars’, and observes that ‘it was virtually impossible for any banned person to live and work without falling foul of the banning order’s many and ambiguous restrictions’.48 As one case explained, the ban meant that she could not receive any visitor at her house. But she was arrested after a relative came to her house to pick up a grocery list so that he could shop for her. In S v. Mandela (1972), Arthur succeeded in persuading the Appellate Division that this relative, arriving at the house for this narrow purpose, did not amount to a ‘visitor’, one who would have social intercourse with the people at home. The court – clearly not enamoured of the banning statute – also ruled that another potential ‘visitor’, found hiding in the bedroom, might just as well have been a visitor to Mandela’s sister, with whom she lived, as to Mandela herself, and reached a similar conclusion as to a third person who was also in the house. George Bizos would write that he and Arthur had ‘indulged in a combination of Talmudic and Byzantine hairsplitting’ to establish Mandela’s defence.49
The state did not give up, and in 1974 Arthur was back in court, again with George Bizos, on Mandela’s behalf. This time the case grew out of Mandela’s efforts to see her ‘two young daughters’, who were ‘at boarding school in Swaziland’ but came back during the holidays to Johannesburg.50 Seeing her daughters was permitted; meeting with someone else was not. The Appellate Division concluded, on