– what had happened, demonstrably, to others in parallel circumstances – could be probative as well.
This was certainly a victory for Arthur as a crafter of persuasive legal argument, but it was not only that. The force of Arthur’s legal position surely was enhanced by the evidence he was able to bring to bear that police coercion had in fact taken place: that made the court’s ruling less a matter of abstract theory than of painful and compelling fact. The evidence Arthur brought to bear consisted in part of the testimony of the accused in the case. But that evidence was bound to be – and it was – contradicted by the police, and so Arthur’s victory on the facts was also a victory for him as a cross-examiner. Judge Holmes, on behalf of the Appellate Division, described the ‘concerted investigational modus operandi’ that the defence argued had been used – featuring incommunicado detention, violations of the ‘Judges’ Rules’, and the accused and the other suspects being ‘individually taken out of the cell, by day and sometimes by night, to another room where they were rigorously interrogated and were assaulted’. As Holmes put it, ‘Reading the testimony of those appellants who had confessed, with the evidence elicited from certain of the police witnesses in cross-examination, it can be said that there were not insubstantial indications that the foregoing was the modus operandi, save that the appellants’ accounts of assaults were disbelieved by the trial Court and the police denials were accepted.’19 Or, to put the point more bluntly, Arthur did not convince the trial judge, but he did (partially) persuade the Appellate Division. Because of that, it is worth looking in some detail at the transcript of the case, for the picture it gives us of Arthur, as a young lawyer, taking on the witnesses for the state.
Let us begin with a point that has little directly to do with the content of Arthur’s questioning. This point is that while the police witnesses all testified in Afrikaans, Arthur almost always cross-examined them in English. Each witness’s cross-examination would begin with Arthur’s asking the witness if he would be comfortable proceeding this way, and with Arthur’s reminding the witness that if he wanted an interpreter, one would be provided. Arthur’s reason was straightforward: his Afrikaans wasn’t good enough for him to put his questions as he wished to in the language the police preferred to use. Some of them, it’s clear, were quite comfortable in English, but no doubt insisted on testifying in Afrikaans in part as an expression of Afrikaner authority and identity and in part to add to Arthur’s burdens. Arthur seems never to have been comfortable in Afrikaans, though he may have grown more fluent over time: twenty-five years later, he would tell me that when he had an Afrikaans-speaking witness coming up in court the next day, he always brushed up on his Afrikaans.
Why didn’t Arthur speak better Afrikaans? One possibility is that he made a conscious decision to use Afrikaans as little as possible, precisely in order to challenge the expression of Afrikaner authority implied by its use. Another is a matter of culture, somewhat less dramatic than the first explanation, though it may ultimately stem from much the same impulse: my impression over the years is that English-speaking white South Africans were less likely to be fluent in Afrikaans than Afrikaans-speaking white South Africans were to be fluent in English. The cultural and political gap between these two groups of white South Africans in the apartheid years was deeply rooted, and English speakers had both a limited need and a limited opportunity to use Afrikaans in their daily lives.
In any event, Arthur set out to cross-examine (with his friend Joel Joffe, who was junior to Arthur in the case, occasionally handling a witness). My impression from scanning much of the transcript is that as a general matter counsel for the accused had very little to go on – they had received few documents in pre-trial discovery, and the case on the confessions essentially came down to which set of claims, those of the accused or those of their interrogators, the trial judge believed. Nor did they have much time. Arthur was instructed to appear for the accused, effective 4 June 1963, and despite Joel Joffe’s motion, made the day before Arthur formally joined the case, for a three-week postponement, the trial judge granted only three days; trial began on 6 June 1963. When he encountered surprise testimony from one witness, he had to struggle to persuade the judge to give him an hour and a half over the lunch break in which to consult with his clients, before beginning his cross-examination. So the task they faced was to find, and find very quickly, ways to demonstrate that the testimony of the police was simply unbelievable.
The case may also have been a blunt introduction for Arthur and Joel to the injustices of the apartheid system. These, of course, they knew as a general matter already; they were in the case because of their willingness to handle political matters. But it is possible that the frenzied response of the police to this attempted arson attack on downtown Johannesburg took the police to new levels of brutality, and in due course to new levels of perjury as they sought to cover up what they had done. At times Arthur seems simply amazed at what the police say. At one point, for example, Arthur is cross-examining a warrant officer named Weyers, who acknowledges that he was in court at an earlier bail hearing during which allegations were made that the people seeking bail had been assaulted.20 Arthur asks:
What did you think when you heard about that allegation? – Weyers: I didn’t do anything.21
That is what I find so difficult to understand. It is such a serious charge, why didn’t you do anything to investigate? – Weyers: If they had any complaints of assault they would have reported this at [the police station at] Marshall Square.
Arthur then asks, five more times, why Weyers chose to wait for a complaint rather than to initiate an investigation, but Weyers is unshaken. Finally Arthur says:
I still find it difficult but I leave your answer because there is a possible explanation, and perhaps I should ask you to deal with it, and that is that you knew there had been assaults? – Weyers: I deny this.22
Similarly, though in a less obviously fraught context, when Detective Constable Els claims to have spent several days questioning arrested suspects but to have reported absolutely nothing about his results to his colleagues, Arthur says: ‘It seems such an extraordinary procedure to me, Mr Els, surely you must have at least made some report to somebody about what you were doing during this period?’23 But Els responds, ‘I did not, Your Honour.’
One more example may be the most egregious. Arthur, reacting to the supposed success in interrogation of Lieutenant Theunis Jacobus Swanepoel, who acknowledged having been the target of multiple assault complaints in the past, puts a sceptical question to him: ‘Alright, now you have remarkable success with prisoners don’t you Lt Swanepoel?’ Swanepoel parries, ‘I don’t know what you mean by “remarkable”.’ Arthur makes his point more explicit: ‘Everybody seems to take one look at you and start giving you information?’ Swanepoel treats the question as the set-up line for a joke, and answers: ‘I don’t know, perhaps they like my face!’24
This was relatively early in Swanepoel’s notorious career. A few years later, in a trial of 37 Namibians charged with terrorism for their resistance to South Africa’s rule over what was then called South West Africa, the attorney for the accused, Joel Carlson, described Swanepoel’s testimony as demonstrating the ‘defence team’s impotence in the face of police power … With tremendous arrogance, he dispensed with the formalities, swore himself in, dismissed the role of the judge’s registrar, and proceeded with his evidence. He made it clear that he was in control of the proceedings.’ Then Swanepoel did something reminiscent of his joking response to Arthur’s cross-examination, but more flagrant:
After beginning his testimony, he suddenly turned to the judge and asked to be permitted to have a private word with the prosecutor. This was highly irregular. ‘It is a matter of state security,’ said he half-smiling. The judge consented helplessly although he clearly resented this man who toyed with the court’s authority. Swanepoel left the witness box, had a word in the prosecutor’s ear, both men smiled, and then he returned to the witness box.25
Perhaps
