And Justice For All. Stephen Ellmann
‘related to calling for the release of political prisoners, encouraging black workers to form trade unions and aspiring to change South Africa into an egalitarian society’.63 The students’ efforts reflected the rise of white student activism directed against apartheid, a development opening another front in the swelling range of opposition to the government. The trial was in progress when the mass demonstrations in Soweto on 16 June 1976 made it clear that the African population of the country had not been subdued. Bizos writes that ‘we soon realized the significance of the trial. If the State made the charges stick, it would close down much political activity that was still permitted. Anyone, for example, urging that political prisoners be released was at risk of being successfully prosecuted just because the ANC had made a similar call.’64 Arthur would say in court that ‘if they are going to be found guilty then heaven help this country, because I think it will mean that nobody could say anything at all’.65
The NUSAS trial lasted for a year, ‘from date of first court appearance to conclusion on 2 December 1976’.66 It was Arthur’s most intensive commitment to a political case since Rivonia and also appears to have marked his return to political cases after some time away from them; the Hosey case had ended two years before this one began. Geoff Budlender, who was then doing his articles of clerkship with the attorney in this case, Raymond Tucker, thinks that Tucker was the person who brought Arthur back to political casework.67 Representing five influential figures in the student movement of the day – Glenn Moss, Charles Nupen, Eddie Webster (actually a lecturer rather than a student), Cedric de Beer and Karel Tip – Arthur and his colleagues, George Bizos and Denis Kuny, fought successfully to win acquittals of all of them.
Several points about the trial are important to discuss here. One was the lawyers’ relationship with their clients. It was not inevitable that Arthur would represent the NUSAS accused. Glenn Moss recalls that the accused considered two or three other senior counsel to lead their defence but had objections of one sort or another to them. When Raymond Tucker, the attorney on the case, proposed Arthur’s name, the lawyer who had represented Moss’s family for many years said, ‘He’s just a tax lawyer.’ But George Bizos recommended Arthur, and Tucker spoke very positively about him, and he was briefed.68
What Tip felt was that when they met Arthur, he made a tremendous impression – he was calm, confident, reassuring and very empathetic with their cause.69 Moss recalled that Arthur approached his clients with a certain reserve – he was their lawyer but not their confidant, and didn’t want to know anything about them that was not part of the trial. At the same time, he remembers Arthur as having a concern and involvement with people, and emotional integrity.70 This perception fits with Karel Tip’s recollection that in the trial Arthur was always very supportive at a personal level, and very sensitive to occasions when the clients were troubled, such as the testimony of an undercover police spy who had appeared to be their colleague. He was always there to help the accused stay calm. Over time, Charles Nupen recalled, the accused came to feel, and happily, that their future was in Arthur’s hands.71 The connections Arthur made with his clients, in this case and others, were not simply expressions of personal interest – it could matter to the case’s progress what the accused were feeling as they testified, for example. But these connections do also seem to reflect the kindness and warmth that many people saw in Arthur at home, now expanded to reach clients as well. James Joyce once said, ‘I never met a bore,’ and Arthur in truth shared a Joycean interest in others as well.72
When it began, the government intended to make the NUSAS Five trial a very visible challenge to the rising student activism. The case was first brought in the Supreme Court – but then, early on, it was transferred to the Regional Magistrate’s Court, a lower court. The top prosecutor, the Deputy Attorney General of the Transvaal, was also replaced by P.B. ‘Flip’ Jacobs, ‘a senior prosecutor with little experience in political matters’. (Jacobs would also take part in the Delmas trial, discussed later; there, late in the case, he and Arthur would speak harshly about each other’s ethics.73) Moreover, the magistrate designated to hear the case, Gert Steyn, ‘was not one of the magistrates usually selected to hear political matters’. Why were these changes made? Michael Lobban suggests that the reason was that the state’s original plan was to call Craig Williamson as a witness. Williamson was a police spy who had infiltrated the ranks of anti-apartheid students. He would go on to play this role for several more years – and apparently the government decided it was not worth blowing his cover at that stage to have his testimony in this case.74
Nevertheless, the case of course remained important to the accused, not only because of the potential sentences of imprisonment they faced but also because of their political commitments. The five faced a delicate problem: acquittal was a real possibility, but the more they trumpeted their radical views, the greater the risk that they would be convicted. As Moss writes, ‘This dictated a defence strategy to “soften” some of the politics, although without necessarily compromising the credibility or integrity of the accused and their actions.’ He continues: ‘The experience of [the legal] team guided us, ensuring that we would not compromise our political commitment in search of acquittal, but also undermining the state’s case where possible through careful and incisive cross-examination of the parade of witnesses brought to testify.’75
The defence team was respectful of their clients. This was evident, for example, in their response to Geoff Budlender. Budlender was not one of the accused, but he had been named in the indictment, and not surprisingly, since he had been acting president of NUSAS during part of the same time period when the others were active. But could Geoff play a part in this trial, given that he was himself implicated by the state’s indictment? George Bizos recalls that Arthur, ‘steeped … in the theory and practice of legal ethics … sanctioned Geoff’s participation in the defence. He accepted Geoff’s assurance that he knew of no conspiracy and that he had done nothing unlawful. In Arthur’s opinion, we should not waive Geoff’s right (and those of the accused) to be presumed innocent.’ Geoff, sometimes jokingly referred to as ‘Accused Number 6’, continued on the case.76
Geoff remembers a telling moment in Arthur’s work on the case. Arthur joined the other lawyers after they had already come together – perhaps because he had another case – and when he did so he said at a meeting, ‘I don’t understand this indictment.’ So Geoff, at that point a vastly less experienced lawyer than Arthur, undertook to explain it to him. Arthur listened politely and thanked Geoff, and Geoff only gradually realised that when Arthur said he didn’t understand the indictment, he did not mean that he was confused by it – but rather that it had no merit.77 From this awkward beginning, the long friendship between Arthur and Geoff grew.
The lawyers were also respectful of their clients’ political commitments, their right to make, or at least be fully consulted about, the choices that affected their defence. There is an important difference here between consultation and simple deference. Arthur was attentive to his clients, but as in the case of his assistance to Winnie Mandela in speaking to the nation for her husband, so here – for Mandela himself, and in other respects – Arthur was prepared to conclude that either law or politics required particular trial choices to be made. He did not make those choices over his clients’ objection, a step which might have raised acute issues of legal ethics. Rather, it seems more accurate to say that he was prepared to impose his will when he felt that was called for, and that he commanded such authority that his clients were persuaded by his urging.
Why did the lawyers defer as much as they did to their clients’ choices on political issues? Glenn Moss explained that Arthur ran the case on all the strictly legal elements, such as the interpretation of the statute under which they were charged. But with respect to judgement calls involving politics, Arthur told them that if they were convicted, they would end up serving time with political people; if the other prisoners felt they had over-compromised, their relationship in prison might start on a bad footing. And so political calls were for the clients to make unless there was a compelling legal reason for a particular decision. In short, Moss felt, Arthur understood the process of political trial. But this wasn’t all. While the exact nature of Arthur’s political beliefs was never clear to Moss, his co-accused Karel Tip emphasised that Arthur immediately came