case seems to be Arthur’s first test case, designed and carried out twenty years before he would go into the test case business with the founding of the Legal Resources Centre.
*
Arthur was involved in a much more dramatically political case in 1963. This case, his first extended political trial – which also became the first political case that he argued before the country’s highest court, the Appellate Division – was State v. Napoleon Letsoko and Four Others. It was tried in Johannesburg, in the Witwatersrand Local Division of the Supreme Court of South Africa, beginning in June 1963, and generated a 1600-page transcript and record. Arthur led the defence, with his friend Joel Joffe as his junior. The five accused were charged with sabotage for conspiring, as part of the Pan Africanist Congress (PAC), to burn buildings in downtown Johannesburg, though they were apprehended before they (or whoever was truly behind these events) could cause severe damage. In the end, all five of the accused were convicted at trial; since they did not testify or offer other evidence on the substance of the charges, the case turned primarily on a ‘trial within the trial’ addressing the issue of whether the confessions four of the accused had given were voluntary. As part of this trial within the trial, Arthur would proffer the testimony of twenty to thirty other people who had also, he submitted, been arrested, held in a single group cell along with the five who were ultimately charged, and individually taken out to be questioned and beaten. It appears that Arthur and Joel’s first accomplishment was to get access to these others and stop the torture with which the police were building their case.12
But Arthur took the case on appeal, and there he succeeded in having two of the five convictions overturned. That in itself was a major achievement, but the implications of the case went well beyond the fate of these five men. In Letsoko Arthur was able to establish on appeal the proposition that evidence of a routine method of abusive interrogation used against others involved in a particular investigation was relevant and hence admissible to show that that method had in fact been used against specific individuals who were swept up in the same investigation.
In the trial court, Arthur had sought to lead evidence from ‘20 to 30 other Bantu, who had been arrested on this charge, to testify to their treatment and assaults at the hands of the sabotage squad’. When Arthur first made this proffer, the counsel for the state responded, ‘My lord, I don’t like these political statements,’ and then repeated that he didn’t like ‘the political savour’. Arthur responded quite passionately, and in terms that seem to sum up the work he would do over more than three decades of challenging apartheid’s injustices in court:
My lord, I don’t like that – it is not political and my learned friend must not say so. It is not a political assertion; it’s got nothing to do with politics and I advised my learned friend beforehand of the nature of the Defence in case he didn’t want it to be aired in Court, and he should know in advance. My learned friend is quite wrong to say it is a political assertion. My function here, my lord, is not that of a politician, my function here is to defend these Accused to the best of my ability.13
This was not the only moment in the trial when Arthur felt he needed to defend his own position in the case. Later in the trial within the trial, a senior officer named Van Wyk asserted that the other men who had been arrested and interrogated had been making statements until Arthur became their advocate. Arthur was outraged, and pressed to cross-examine Van Wyk further on what Arthur took to be an implication of impropriety. He said to the court: ‘I would have thought that your lordship and my learned friend [the prosecutor] would have taken very seriously a statement by a policeman that I, as counsel, had influenced people, as a result of which he could not continue with the prosecution. I would have thought I would be entitled to pursue that, if for no other reason.’14
The trial judge clearly felt that this was a side issue, and one on which further cross-examination of this particular witness could not be conclusive, but Arthur was still incensed. He said, explicitly:
Does your lordship rule that I may not put the question?
BY THE COURT: Put the question!
CROSS-EXAMINATION BY MR CHASKALSON (CONTINUED): I put it to you that the reason why the case was withdrawn against the other 32 persons was that without the police statements of the arrested persons there was no evidence against them?
BY THE COURT: I rule that question out of order.15
Clearly Arthur cared deeply about his professional reputation, and reacted when he thought it was at stake. But the intensity of Arthur’s reaction, testing the trial judge’s patience quite acutely, perhaps suggests something more as well – that in this trial Arthur (and Joel Joffe) felt, in the back of their minds, that they themselves were at any moment potentially under scrutiny themselves. The witness might turn in a flash into the accuser.
In any case the trial court rejected Arthur’s proffered witnesses. But the Appellate Division concluded that the trial court had erred, and also concluded that it was possible that if the excluded testimony had been heard and taken into account, the confessions by the accused would have been excluded as involuntary. (The court commented that the accused ‘were unimpressive witnesses in their testimony of assaults’, but also observed that ‘certain trenchant criticisms can also be levelled against some of the police officers as witnesses, as [the state’s counsel] was constrained to agree.’16) That in turn meant that now the confessions had to be excluded from consideration in the case against the accused. The result was that one of the five accused was acquitted, on the ground that without his confession the evidence against him was insufficient. Meanwhile, another accused, who had never confessed, was also acquitted, the Appellate Division revisiting the evidence against him and finding it also to be legally insufficient.
To be sure, this was not a complete victory. The remaining three accused had been sentenced to 17, 20 and 20 years of imprisonment respectively, and now their convictions had been upheld. Arthur also appealed against these sentences, and the court here too was impressed by Arthur’s argument. (The court also mentioned the trial judge’s statement that the lawyers ‘had left no stone unturned’ on their clients’ behalf.17) Appeal Judge Neville Holmes wrote that ‘In the present case one is deeply conscious of Mr Chaskalson’s submissions to the effect that these are young men who apparently fell prey to inflammatory speeches of discontent and criminal design; that, as it transpired, no great damage was done; and that, if the sentences stand, they will be paying a grievously heavy price for their brief incursion into the field of sabotage.’ It is worth saying that this is hardly a political defence – and that it stands in sharp contrast to the defence that Arthur and his fellow counsel would help the ANC leaders present in the Rivonia trial then only some months in the future. Perhaps Arthur had not yet thought through the implications of representing committed revolutionaries in court; or perhaps his clients – who seem to have been more followers than leaders – did not seek a political defence but instead hoped merely for any viable defence that could be made on their behalf. In any event, Arthur’s point did not prevail. ‘All this is unhappily true;’ Judge Holmes continued, ‘but it is not the whole picture. The conspiracy was an evil one; they put their minds or hands to deeds of pitiless wickedness, reckless of the property or lives of others; and it is no thanks to them that the kindled fire did not become a raging conflagration in the centre of Johannesburg.’18
It is clear from the court’s ultimate resolution of the case that its decision in favour of the accused on the relevancy to their case of the evidence of abusive interrogation methods, used on people who weren’t ultimately put on trial, was not motivated by any kind of easy sympathy for the accused. Moreover, the relevancy issue was an important point for more than just this one case – important enough that Arthur would say, many years later, that his Legal Resources Centre colleague Geoff Budlender believed that Arthur’s entire practice at the LRC was based on two cases, of which this was one. Letsoko offered
