close to the wind … It didn’t feel like that at the time.’89
But if Arthur in principle accepted that ethical lawyers might sometimes break the law for the sake of justice, as Bram Fischer had, he surely did not conclude that he should follow Bram’s path of defiance of the law. In the years to come, he would earn a reputation for exceptionally scrupulous law practice, and for similarly law-minded behaviour in his private life. The moments when he dramatically crossed or almost crossed clear legal lines all belonged to the period before Rivonia. After Rivonia, he charted a different course, one that made him an advocate of standing and influence, able to employ South African law in new and powerful ways against South African injustice. The course he chose safeguarded that powerful position by very carefully ensuring that the law could not become a weapon against him. He was still capable of reading the law to permit obedience in form but not in substance, as he seems to have done in accepting funding from a ‘Geneva professor’ in the NUSAS case, but he did not simply depart from the law. No doubt his real and deeply felt commitment to the law was in itself reason for others to respect the lines he drew between what the law prohibited and what it (perhaps just barely) permitted. Whether Bram Fischer urged Arthur to follow this course we will never know; but in the chapters to come we will see that Arthur indeed did proceed on this path. We will see, moreover, that doing so involved considerable delicacy in drawing lines between what could and what could not be done; it required, in short, a lawyer of Arthur’s skill.
There is one more point to consider from Arthur’s email to me. This is his objection to a comparison I drew between Bram Fischer and Oscar Wilde. With my father Richard Ellmann’s sympathetic understanding of Wilde in mind, I wrote (in the published version, which may have differed somewhat from the draft Arthur read): ‘The sense that Wilde stood for principle even as he violated the law … resonates with the life that Fischer led, and each became an avatar of a liberation he would not live to see. Moreover, Wilde, who was a socialist as well as an artist, may in his own way have had a moral rigour quite comparable to Fischer’s.’90 Arthur responded:
The problem I have with the comparison with Oscar Wilde is that he led a life of great personal indulgence; Bram did not …
I also think that the comparison you draw may be misunderstood here, and hurtful to many people. Many will see Wilde as he is often depicted as self-indulgent, pleasure seeking, and concerned primarily with his own interests, and may understand the last part of your article as trivializing Bram’s commitment.
Whether Arthur (or I) was right or wrong in this debate is not my concern now. Rather, what seems most important about what he said is that it reflects how deeply attached to Bram Arthur remained, a quarter-century after Bram’s death, and that it is clear how much Arthur weighed in his moral calculus the issue of whether someone was acting out of duty or self-indulgence. What Arthur admired in Bram he would insist on in himself. He would always try to act out of duty.
After Rivonia: Arthur’s Practice
For almost a year, in 1963–4, Arthur worked constantly on the Rivonia defence. When that case came to an end, the world in which Arthur now lived was one in which the state had transmuted the law ever more thoroughly into a source of oppression – supplemented, all too often, with brutality and torture as well. The political movements opposed to apartheid were in the process of being beaten into what appeared, at least, to be submission. And so the question faced Arthur: what would he do?
He and Lorraine might have chosen to leave the country. Many people did, including Joel and Vanetta Joffe as well as others, less political, such as Arthur’s university friends Sydney Lipworth and Mark Weinberg. Arthur would say, years later, that he did not disapprove of others leaving, and that he felt that it wasn’t possible to impose political strictures on life choices of this sort. But Arthur and Lorraine did not leave. They would consider leaving, when Lorraine grew very worried about their two sons facing conscription into apartheid’s army. Arthur, always practical, responded that he did not want to leave, but that if she felt they must, they would, but he said that their departure would have to be planned, so that he could move his practice from South Africa to Britain. And once the matter was put on this plane of practicality, Lorraine’s anxiety eased.
He and Lorraine might also have chosen that he should step back from taking political cases. It would not have been strange if Arthur had found the intensity of the Rivonia trial so draining that in its aftermath he would move away from this kind of work. Certainly life in South Africa would have been simpler had he done so. But again this was not the course he followed. While he did not embrace political cases as the sum and substance of his practice – as his close friend George Bizos did – he made himself a part of many of the most important and politically charged legal controversies of his day. No one I have spoken with describes him as having pulled back; rather, it seems more accurate to say that, having found a new level of political commitment through the Rivonia trial, he now pressed forward with such work. Indeed, Arthur’s own political engagement may have been deepening in these years, as some of the matters in which he became involved suggest.
The decision to stay in South Africa was not, of course, just a decision about work. It was also a decision about life. Arthur and Lorraine would soon have two sons; Matthew was born in 1963, shortly before the Rivonia trial, as we’ve seen, and his younger brother Jerome would arrive in 1967. Arthur and Lorraine would make a home for themselves and their sons and seek to lead happy and rewarding lives, in the midst of apartheid.
In these years Arthur took on a wide range of political cases, which meant that he represented many, perhaps most, of the various groups still seeking to challenge apartheid in South Africa. As we look at these cases, we will be examining Arthur’s history, but also in some measure the history of the country. At the same time, it is important to keep in mind that these political cases were by no means all of Arthur’s work in these years, nor even all of the work of political significance that he undertook. We will look at both his surprisingly political Bar activity and at the commercial, non-political side of his practice in the latter part of this chapter.
The cases we are about to examine, political and non-political, make up a disparate group. That surely reflects Arthur’s tremendous ability to master the facts and law of one case after another. Each, undoubtedly, was significant – at least for its clients, and sometimes more broadly – and probably most also presented lawyering challenges that were interesting and challenging. They were all worth doing. They were also hard-fought; in one case, an attorney’s house was fire-bombed; in another, Arthur clashed sharply with Percy Yutar, his Rivonia antagonist.
But it is fair to say, as well, that during these years Arthur’s work had no one substantive focus. I think he himself felt that, and that this recognition was part of what led him to the next step in his career, the founding of the Legal Resources Centre (LRC) – where it would be possible for Arthur to shape not only his own work but an entire institution towards a focus on challenging the injustices of apartheid. That day would not come until 1979, however, and to understand what Arthur came to achieve we first need to see what he did in the difficult years between the end of the Rivonia trial in 1964 and the founding of the LRC fifteen years later. Let us turn first to the cases in which he represented clients whose offences were non-violent, then to those in which his clients were part of the resistance to the state, and then to Arthur’s decidedly political work as a member of the Bar Council. Then we will see that Arthur’s political work shifted from a part to something closer to the whole of his litigation; and finally we will be in a position to ask why Arthur, initially not focused on any single area of courtroom work, came to concentrate
