Arthur clearly departed from conventional lawyerly conduct – one does not, ordinarily, assist another lawyer’s client in shaping a defence. Perhaps it was simply the case that when Arthur and Lorraine were asked, they felt obliged to help.
The third episode is a non-political story. Once Arthur was dining in a restaurant in Johannesburg, apparently with another lawyer, when the diners witnessed a homeless man on the street outside the restaurant attack someone with a knife. Arthur jumped up and hurried out of the restaurant and yelled ‘Drop that knife’ at the armed man – who did, in fact, do as he was bid.21 Arthur was brave and determined; and if these three events sound rash from the perspective of four or five decades after the fact, perhaps that is not Arthur’s miscalculation but ours. He and Lorraine would negotiate a delicate course in staying inside South Africa and using South African law against itself over many years, but it may be that he was never entirely strategic and circumspect. When his heart stirred him, at least on several occasions, he acted.
What did he expect the future would bring at this point? One hint is provided by a story told by Arthur’s friend Rusty Rostowsky, who became an attorney in Johannesburg as Arthur was starting out as an advocate. One day in the early 1960s a two- or three-car caravan of lawyers departed on the several hours’ drive from Johannesburg to Swaziland, with Arthur driving one of the cars. The trip had been planned; they were on their way to the Swaziland court, to seek admission to the Swazi legal profession as attorneys. Holding this Swazi credential, they thought, could make it easier for them to emigrate to England, for instance, or Australia than if they could only present themselves as South African lawyers trying to get out of South Africa. (Swaziland became independent in 1968, as Arthur’s son Matthew pointed out to me when I told him this story, so it seems likely that in seeking a Swazi legal credential Arthur and his friends were seeking a British credential as well.) Unfortunately the trip did not go well. For some reason – whether machination or mistake – their motion was not listed on the court’s roll for the day. Arthur stood up and asked the court to hear the motion anyway, but the judge abruptly rejected his request. Nevertheless, the young men did not give up; they drove back to Swaziland a couple of months later and succeeded in getting admitted as attorneys. When Rusty Rostowsky told me this story, I responded that I hadn’t thought that Arthur considered emigration seriously, and Rusty said that that was right – but he did give it enough thought to want to hedge his bets this way. Arthur would never leave South Africa, but at this early moment it seems the thought crossed his mind. Meanwhile, he had already begun the anti-apartheid litigation that would play so large a part in his life over the decades to come.
As Arthur prepared for and began his legal practice, South Africa was caught up in immense and painful political changes. We have touched on some of these already, but it is time to make the political context in which Arthur found himself more plain. The story is elaborate but its basic outlines are straightforward. With its electoral victory in 1948, the Afrikaner-based National Party took over government power, and it set about turning South Africa’s long-standing policies and practices of racial discrimination into systematic and absolute impositions of white supremacy. Black South Africans, like some of their white counterparts, had long sought to block such moves in the courts, but now their response was to turn to increasingly militant protest. Nelson Mandela and others led the ANC’s non-violent defiance campaign in 1952, to which the government responded with new legislation sharply increasing the penalties for even non-violent protest. Then, in 1955, the ANC convened the Congress of the People, which adopted the Freedom Charter, a document that became the touchstone of the ANC’s programme for South Africa.
The government’s response this time was the Treason Trial, which began in 1956 with, originally, 156 people facing trial for their lives. The trial ultimately ended in March 1961 after the dismissal of most of the accused, and the acquittal of the few remaining ones – a triumph of defence lawyering and an instance of the capacity of South African courts under apartheid to do justice, although at the same time a tremendous interference with the lives and political work of those who endured this prolonged trial. But by that time at least 69 Africans demonstrating against the requirement that they carry passbooks had been killed by security forces in the Sharpeville massacre of 21 March 1960; the government had declared a state of emergency and, a month later, the ANC and the breakaway Pan Africanist Congress (PAC) had been banned; and both these groups (and others) were turning away from non-violence towards sabotage and guerrilla activity.
Meanwhile Arthur began to take political cases. So far as is known, he did not take part in the Treason Trial defence, though his friend Denis Kuny notes that many people assisted in this case behind the scenes, and Arthur may have been one of them.1 He himself recalled that he had reached a firm decision, right at the start of his practice, that he would make himself available for such cases. That was important; even though in theory advocates were obliged to take any paying case that was offered to them and for which they had available time, in practice attorneys seeking advocates for political trials surely looked for those who had made clear their willingness to handle such matters.
Nevertheless it is one thing to be willing to take political cases, and another to actually take them. Here, as in so much of Arthur’s life, personal ties seem to have made a difference. Arthur was very good friends with Denis Kuny, who was more bluntly political than Arthur, and with Denis Kuny’s then wife Hillary, who was the local secretary of the Defence and Aid Fund. This body looked for counsel for the accused in political cases, and also channelled funds into the country to cover those counsel’s fees. Both tasks were challenging, the latter especially so when the government had banned the use of foreign funds for this purpose. Hillary looked for advocates to press into service. Her recollection is that young lawyers like Arthur and his good friend Joel Joffe were at this stage not very politically engaged at all – and it was her job to make them so.
It is difficult to draw firm conclusions about the shape of Arthur’s political practice, since we cannot easily determine which cases he took that never made their way to trial or to the full formality of a reported judicial judgment. Even so, the cases we do know about shed a lot of light on the role Arthur was carving out for himself. They reflect that he took a hand in trying to block the National Party’s relentless segregation of South African life, and that, as African protest turned to violent action, he did not hesitate to take up their cause as well – though he insisted on his status as a lawyer rather than a politician in the efforts that he made. The cases reveal Arthur strategising in a test case, while devising a powerful evidentiary strategy in another conflict that would become one of his touchstones in later legal work. They show him prepared to fight, sometimes courteously, sometimes more bluntly. Interestingly, they also point to Arthur’s limitations. These cases mark the beginning, though far from the end, of Arthur’s involvement in politically charged cases as an advocate.
*
R v. Chan King, decided in late 1960, is Arthur’s first reported public interest case. It arose under the Group Areas Act, a dreadful statute under which South Africa’s apartheid rulers sought to impose physical residential segregation on the basis of race on a massive scale. Chan King, referred to in the case as the ‘first accused’, was a man of Chinese descent, who apparently ran a fish and chips shop in a white area. The ‘second accused’, who was the director, or at least ‘a director’ of the company to which the shop was leased, was a white man. The court reports, ‘It is clear on the evidence, the first accused having been kept under observation by a police officer, that the first accused during the greater part of the day was engaged single-handed in serving customers in this shop, the clientele being principally natives. The second accused would merely put in an appearance in the evenings
