The magistrate who first decided the case felt that this arrangement was simply a subterfuge for the Chinese accused to occupy the store – presumably his, under the table – illegally. That decision was appealed to the Transvaal Provincial Division, and the judges there did not adopt the subterfuge theory. Instead they proceeded on more doctrinally modest ground. As to the Chinese accused, the court wrote, ‘It is correctly conceded by Mr Chaskalson for the first accused that there is an onus [a burden of proof] on the first accused to establish his exemption [from the statute] on a balance of probabilities. If the matter is left in dubio [in doubt] it follows that the defence fails.’3
Exemptions were possible, but they were not possible for any ‘charge-hands, executive, professional, technical or administrative employee, manager or supervisor’. Arthur argues that the first accused cannot be a supervisor, because ‘supervising in its primary meaning and ordinary meaning connoted the presence of other persons working under the authority of the one who supervised as supervisor or an overseer, that he had to have somebody to oversee before he could supervise or be a supervisor’. The court agrees that ‘there is much to be said for that argument’, but then dismisses it from consideration on the ground that even if the first accused wasn’t a supervisor, the police evidence is at least sufficient to create doubt as to whether he was a manager – and that doubt is enough to defeat his claim. One suspects that the court’s doubt was enhanced by its observation ‘that the second accused gave evidence to the effect that the first accused really had no responsibility in the business and certainly was not a supervisor but the magistrate found the second accused a very unsatisfactory witness who was not worthy of credence and on the record I have no difficulty in understanding why the magistrate came to that conclusion’.4
What about the second accused? The statute made it a crime both for people of the wrong race to occupy an area and for other people to allow them to do so. In this case, given the conviction of the first accused, it was clear that the company to which the fish and chips store was leased had allowed illegal occupation. That was enough to ensnare the second accused, because another section of the statute makes any director of a corporate body that has violated the statute personally guilty as well. ‘In the light of that provision,’ the court writes, ‘Mr Chaskalson found himself unable to pursue the appeal of the second accused on the merits.’5
It seems fair to say that this case was very difficult to win. The law was against Arthur’s clients, and the testimony of one of them had made matters worse. The hints, or more than hints, of subterfuge hurt too. How did Arthur come to be in this situation? The last line of the case report suggests an answer. There, as is customary in South African case reports, the last line of the case lists the appellants’ attorney: A. Oshry. This would have been Arthur’s uncle Alec, an attorney in Johannesburg. For a young advocate to have an attorney in the family who sent him cases was no doubt an advantage – and yet I wonder whether it was Arthur who did his uncle a favour in taking this difficult case. I wonder, also, whether Arthur was brought into the case after it had been tried, so unsuccessfully, in the magistrate’s court; Matthew Chaskalson suspects so on the ground that at that stage Alec Oshry would have run cases in the magistrates’ court through his own attorneys’ firm.6 That would explain how Arthur came to be saddled with so problematic a case. The case also features an unsuccessful effort by Arthur to obtain an amendment of the grounds of appeal: this too might suggest that Arthur came in not only after the loss in the trial court but after the framing of the grounds for appeal. Yet it is also possible that Arthur took the case, right from the start, with all its problems, because he rightly viewed the entire case, complete with its police surveillance of the mundane operations of a fish and chips shop, as so egregiously unjust.
Certainly Arthur’s next Group Areas Act case had a very different character – though no better an outcome. This was State v. Mosoeu, decided in the Transvaal Supreme Court, on appeal from a conviction before a magistrate, in 1961. Mosoeu’s case, like Chan King’s, arose under the Group Areas Act. Between Mosoeu and Chan King, however, the law had become even worse, because the Appellate Division, then South Africa’s highest court, had given its judicial imprimatur to the enforcement of this statute in Minister of the Interior v. Lockhat and Others. Lockhat answered the question ‘whether the Act empowers the Governor-General-in-Council to discriminate to the extent of partial and unequal treatment to a substantial degree between members of the different [racial] groups’. The court’s answer was in the affirmative, even though the statute did not spell out that it granted such power: ‘The Group Areas Act represents a colossal social experiment and a long term policy. It necessarily involves the movement out of Group Areas of numbers of people throughout the country. Parliament must have envisaged that compulsory population shifts of persons occupying certain areas would inevitably cause disruption and, within the foreseeable future, substantial inequalities.’7
Mosoeu came after the profound defeat represented by Lockhat. But it did not arise by accident, out of the impulsive desire of someone subject to the Act to assert his human rights and enter a restaurant reserved for whites. Nor, I think, did the case come to Arthur only after it had already been botched by others. Instead, Mosoeu appears to have been tried on undisputed facts, and those facts were quite carefully choreographed. As the court wrote: ‘It is clear that the police were advised in advance of the intention to enter the restaurant, and it is equally clear that the incident occasioned no alarm or unpleasantness in the restaurant. This was a case brought by the appellant in order to test the law and to ascertain what the law was and not to defy it.’8 This finding was important to Mosoeu personally, because it gave the court the power to correct the magistrate’s misjudgment that Mosoeu had engaged in ‘wilful defiance’, and so enabled the court to reduce the sentence from a R60 fine or 60 days’ imprisonment to a R10 fine or 7 days’ imprisonment. This was the only point that Arthur won, but it was an important one.
But for us what is most interesting is the question of who planned this event. Nothing in the court’s opinion directly answers this question, but it is possible to infer the answer nonetheless. The argument Mosoeu made was that the Group Areas Act, despite its seemingly expansive language, did not authorise the making of regulations that would bar Mosoeu’s presence in the restaurant in question. But this was not just any restaurant. Instead, this was a restaurant in a Johannesburg department store. As the court elaborated:
The persons who prepare the food in the kitchens are members of the coloured group as are the waiters. Members of the native and coloured groups form a substantial percentage of the shopping public in the different departments of the store where they intermingle freely with members of the white group. The store employs a number of native servants who are provided with meals in a special canteen on the fourth floor of the premises … The evidence also revealed that although in the larger urban cities in the country it was possible for a member of the native group [such as Mosoeu] to obtain a meal at places provided legally for that purpose (though not without difficulty), it was not possible for him to obtain such a meal in the many smaller towns and villages throughout the country.9
Using these facts, Arthur tried to argue that this exercise of the broad powers of the Group Areas Act was too broad, so broad as to be unreasonable and unlawful. The argument didn’t prevail, though the court did pause to say that his ‘argument on behalf of the appellant … was a pleasure to hear’ (and then obviously felt obliged to add ‘as was the argument of Mr Moodie on behalf of the State’).10 Despite this praise for Arthur’s eloquence, the court was satisfied that the unfairness imposed by the government’s action was simply the ‘kind of discrimination … envisaged in the Act in regard to the different controlled and group areas throughout the country’.11 It’s not surprising that Arthur lost; really, after the Appellate Division’s decision in Lockhat, that had to be the likely result. But not every restaurant features the same set of characteristics as this one, and not every effort to test the law is carried out with the same precision as this one. Mosoeu’s case featured these
