And Justice For All. Stephen Ellmann
the driver of the van, the famous photographer Peter Magubane – thus violating her banning order. But it rejected a separate charge, which rested on the notion that the daughters had served as indirect communicators or intermediaries between the driver and Mandela on two other days – that is, they had carried their mother’s message. As Arthur had argued, the court concluded that the charge had rested on direct communication, rather than indirect, and that therefore the conviction could not stand. The court also pointed out: ‘if the matter had been fully investigated upon a proper charge alleging communication between the appellants with the children as intermediaries, it is quite conceivable that it could have transpired that they were acting as principals on their own behalf in requesting Magubane to convey them to various places in town to meet their mother’.51 Both Mandela and Magubane had been sentenced to a year in prison for this ‘offence’; the Appellate Division concluded that the one conviction it upheld still justified a sentence of six months, which Mandela served.52
Arthur remained involved in Mandela’s legal travails as a trusted adviser to George Bizos. When Mandela came out of prison ‘in April 1975 her banning order had expired and for the first time in thirteen years she was comparatively free’. But during the Soweto uprising – the massive demonstrations starting in June 1976 that marked the return of mass resistance to apartheid in South Africa – Mandela was detained again without trial for more than four months. Then the government, fearing her continued presence in the Johannesburg area, banished her in mid-1977 to Brandfort, a dreary town in the Orange Free State, far from Johannesburg. George Bizos went to see her, and consulted Arthur about whether anything could be done, but ultimately had to tell Nelson Mandela that the answer was no. Winnie would be charged and convicted again for violating her ban, and would ultimately return to Johannesburg in 1985 after her house in Brandfort was petrol-bombed and gutted. She would resist the authorities so adamantly that they gave up their efforts to expel her; Bizos writes that she was ‘effectively unbanning herself’.53
Meanwhile, the State President, P.W. Botha, in 1985 offered to release her husband Nelson Mandela from prison if he agreed not to plan ‘any acts of violence for the furtherance of political objectives’. Winnie Mandela visited Nelson and was now ready to deliver his response – which, Bizos writes, ‘was studied by Arthur Chaskalson and me to ascertain the legal implications’. But for Winnie to deliver her husband’s response might violate her banning order. Bizos recalls Winnie Mandela’s ‘inspired decision to have Nelson’s answer read to thousands of people by his daughter’. He also recalls that ‘from this high point, her lack of judgment progressively diminished her stature and sullied her reputation. For Nelson, her family, the movement and the nation it was a serious embarrassment. For Winnie, it was nothing less than a tragedy.’54
For Arthur, though, these moments marked a melding of his responsibilities. To help Winnie Mandela to decide on the strategy by which Nelson would communicate with his people, Arthur needed to give advice that was not just legal but political as well. Arthur had assisted Nelson Mandela in his Rivonia defence, including Nelson’s shaping of his historic speech from the dock, and it is possible that he had similarly aligned himself with his clients’ political aspirations in other cases over the years too. But Arthur may also have been undertaking a level of political engagement here that he had not attained in the intervening years: he himself may have been evolving. His son Matthew believes that Arthur’s politics did not remain fixed, and that instead he developed from someone with a broad liberal disposition against apartheid into someone firmly committed to a social democratic transformation of South Africa. While dating the time of this change is not possible, this moment of advising Winnie Mandela reflects the changes that were under way.
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In the years following the Rivonia trial, with the ANC’s underground structures inside South Africa largely in disarray, the organisation’s exiled leaders in London began recruiting volunteers there to carry out missions in South Africa. These missions ranged from setting off ‘leaflet bombs’ – which used a very small explosive charge to lift a mass of leaflets up high enough in the air to disperse and distribute them in the area – to more military steps such as the scouting of landing sites for ANC guerrillas arriving by sea. For some years these volunteers escaped detection, but that period came to an end with the arrest of Sean Hosey and Alex and Marie-José Moumbaris in 1972. Hosey recounts that he walked into a trap in South Africa; after that he endured months of brutal interrogation by the security police. He was tried, along with Alex Moumbaris (Marie-José Moumbaris, who performed her undercover work while pregnant, was released after four months’ detention in response to political pressure from France, of which she was a citizen) and four Africans who evidently were among those being infiltrated into South Africa.55 Hosey was convicted and sentenced to five years’ imprisonment. He writes that his lawyer, George Bizos, ‘thought it was worth an appeal, but I never held out much hope, and so it proved’.56
Arthur, with George Bizos, handled this appeal, S v. Hosey, which was argued and decided in November 1973. The appeal was brought only on Hosey’s behalf, perhaps because the case against the others was even more clear-cut. It was, indeed, a difficult appeal, and despite Arthur’s best efforts it failed. The court’s attitude was foreshadowed by its comments on a charge of which Hosey had actually been acquitted. This was that he had ‘distributed subversive propaganda pamphlets’ in Cape Town in August 1971.57 He denied – falsely58 – that he had been involved in the leaflet distribution, and the judge who wrote for the Appellate Division commented that his testimony in this regard was ‘most unconvincing’.59 Bizos recalls that another member of the court said during the argument of the appeal that Hosey had been lucky to get off on this count.60
As to the charge on which Hosey had been convicted, which was that he had attempted to deliver to a terrorist money and falsified documents, it was impossible for Hosey to deny having done so – this was precisely the trap into which he had fallen. Hosey testified, however, that he had not done so with the purpose alleged in the indictment, namely ‘to make war against, and to incite violent revolution in the Republic’. He claimed that he had been told that what he was carrying would go to trade union activists, and there was no evidence that he knew the people he was trying to reach were terrorists. But the court said that the facts made clear that he knew he was acting with an unlawful purpose, and therefore invoked the statutory presumption in the Terrorism Act that ‘the intent underlying his said deliberate act was to endanger the maintenance of law and order in the Republic’. The court also said there was ‘no merit whatsoever’ to Arthur’s argument that Hosey’s actions could not have caused any of the harms identified in the statute – as was required for conviction – because the person to whom he gave the materials was in fact a police agent; as the court said, what Hosey attempted to do was to give the materials to someone who was not an agent at all.61
Hosey was sentenced to five years’ imprisonment – in Alex Moumbaris’s words, ‘the minimum, what some comrades called a parking ticket’.62 The stakes in these cases remained high. Moumbaris, for his part, had received twelve years, but he would not serve his full term, because he and two others succeeded in escaping from prison after seven and a half years of his term.
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In 1964 the Rivonia trial ended, and Arthur’s full-time engagement in political litigation – though not his part-time and even intense involvement – came to an end as well. Arthur could hardly have been more completely involved in a case than he was in Rivonia, and it seems possible that in the years that followed part of what he did was to restore his energy. His commitment to the political struggle was as strong as ever, but the sheer tasks of handling one case and then another may have been demanding. If they were, then over time he came to meet these responsibilities; by 1975 Arthur was involved in full-time litigation that would underline the political engagement he was now embracing, and that would lead soon to an even more complete involvement, in the creation of the Legal Resources Centre. There were two of these cases, one not involving violence, the other emphatically and undeniably featuring it.
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In 1975 and 1976 Arthur led the defence team for the ‘NUSAS Five’, five leaders of the National Union of South African Students