style="font-size:15px;"> Arthur undertook several reported cases representing clients charged with non-violent offences. (There may well have been others that Arthur handled, but that weren’t reported in the law books.) Perhaps what stands out most about them – together with the cases in which he represented people who were guerrillas, plain and simple – is that Arthur became involved in a wide range of the political struggles that persisted during the years after Rivonia. The fight to use law against itself had not ended, and Arthur was one of the small number of lawyers who continued it.
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In S v. Beyleveld and Others, a case that he argued in November 1963 – during the Rivonia trial – Arthur represented three members of the Congress of Democrats (COD) on their appeal to the Supreme Court from the lower, magistrate’s court. The COD was the white organisation of the Congress Alliance; the alliance, led by the African National Congress, which also included Indian and Coloured organisations. Many white Communists joined the Congress of Democrats, and in fact two of the accused in this case, Piet Beyleveld and Ben Turok, were certainly Communists as well as, respectively, president and national secretary of the COD; the third, Eve Hall, was the secretary or regional secretary of the COD.
Their ‘offence’ was to bluntly advocate, and seek to persuade their Johannesburg City Council representatives, that the National Party State President of South Africa, C.R. Swart, was unfit to receive the honour of being voted the freedom of the city. That led to their being charged with committing acts ‘calculated to violate the dignity or injure the reputation of the State President’.1 Despite deft arguments by Arthur that this statutory language should be interpreted narrowly – arguments the appeal judges congratulated, saying Arthur as counsel had ‘argued the case very ably’2 – the court declined to narrow the statute and instead concluded that the word ‘calculated’ did not mean ‘intended’ but merely ‘likely’. Once that decision was made, the case against the accused was hard to refute, and the appeal failed. For their acts, all three were sentenced to fines of R350 or 175 days in prison, and the appeal judges, noting that the maximum sentence provided by the statute was R5,000 or five years in prison, declined to disturb this sentence.
In taking this case, Arthur was representing three very dedicated activists. Eve Hall had already been convicted in 1962 for the offence of writing slogans or pasting posters on public walls, for which she was sentenced to six months’ imprisonment. In 1964 she and her husband were banned and had to leave the country. Ben Turok, who had been one of the accused in the Treason Trial of the late 1950s, was already in prison at the time of S v. Beyleveld, since he had been sentenced to three years’ imprisonment for violation of the Explosives Act in 1962.3 Placed under house arrest after his release from prison, he would flee the country in 1966, but after the end of apartheid he became a member of Parliament as a member of the ANC. Meanwhile, Piet Beyleveld’s fate would be quite different: he folded under interrogation and agreed to become a witness against Bram Fischer in the latter’s criminal trial. Fischer, communicating with Beyleveld through notes smuggled into jail with his laundry, tried to persuade him not to testify, but without success. Sadly, Beyleveld would agree at trial that Fischer had ‘a saint-like quality’, even as he testified against him. Later he would testify for the state in other trials as well.4 His online biography says that after the Fischer trial, ‘Beyleveld encountered total ostracism and condemnation. He went to work in his wife’s office services business and faded into obscurity.’5
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Arthur at least twice undertook appeals against censorship cases brought by the state, and in both he was able to persuade the court to adopt interpretations of the sweeping statutes at issue that limited their reach. These cases typified the surprising resilience of common law principles of statutory limitation that operated to constrain the oppressive intentions of legislators – a resilience that was ultimately the basis for the practice of anti-apartheid law. Ironically, Arthur also took, and won, a case limiting free speech on common law grounds; here the law operated, unusually, to protect the speech of an opponent of apartheid. But the most intensively litigated of these cases, in which the record extended over thousands of pages, again dealt with the suppression of speech, and led to the imprisonment of a speaker who had testified about conditions in the prison where he was a warder.
In the first case, SA Magazine Co. (Pty) Ltd v. Publications Control Board, which was reported in 1966, Arthur represented the publisher of a series of magazines said to ‘deprave or corrupt a substantial number of the average readers, and more particularly of the average teenage readers’.6 Here Arthur defended a number of publications, including several ‘made up of pages of pictures of female figures’ who were ‘scantily clad’ and whose pictures were ‘calculated to draw attention to their breasts and/or private parts and buttocks’. The trial judge had to decide whether these pictures ‘might have a tendency to deprave or corrupt a substantial number’ of the teenage boys and young men who were their likely viewers. The judge observed
that anything which has a sexual affinity will contribute towards the sexual inquisitiveness of young people and in that way might be said to cause an awakening of the sexual urges in them. I agree, however, with Mr Chaskalson, that such a reaction in normal young readers must be appreciable and in contra-distinction to the normal awakening or development of sexual urges in them.7
This decision to recognise that the normal awakening of sexual urges is not depraved or corrupt was not enough, however, to defend the publication of four magazines for which Arthur decided to abandon the appeal – nor a fifth, in which an article suggesting that men could easily hypnotise women and have sex with them was held to be ‘indecent and obscene, and … offensive and harmful to public morals’.8
SA Magazine Co. was an anti-apartheid case only in the sense that each assertion of liberty was a challenge to the social power of the state. More than a decade later Arthur would handle a second censorship case, S v. Moroney, which was more directly political. The items in question here were two issues of the Wits Student, publications of the Student Representative Council of the university – and presumably more concerned with politics than with sex. We do not know for certain, however, because of the terms of the statute under which the Wits Student editor was prosecuted. This statute, the Publications Act 42 of 1974, forbade anyone to ‘produce an undesirable publication’ and specified that ‘A notice published in the [Government] Gazette stating that a publication … is in terms of a decision of a committee [appointed from time to time by the Directorate of Publications] undesirable, shall for the purposes of this Act be sufficient proof of the undesirability of that publication or object’.9 Based on its reading of this statute, the state contended that the decision of the committee that these two issues of the Wits Student were undesirable was essentially conclusive.
Arthur argued this case in May 1978, when (as we will see) he was also busy with a major terrorism trial. The statutory language seemed forbidding, but Arthur argued that if it meant all that it seemed to say, it would be ‘in conflict … with the fundamental principles of justice as administered by our Courts’. He invoked principles of statutory interpretation, among them the rule that ‘a court will … presume that Parliament does not intend an unreasonable or unjust result’. 10 The court responded, posing the question whether the statute was ‘intended, as appellant’s counsel [Arthur] argues, as an aid to the State in proof of the fact that an accused had produced an undesirable publication or was it intended to render the committee’s decision conclusive proof of such fact?’ 11 The court accepted Arthur’s view, saying that ‘sufficient proof’ meant prima facie proof, but not ‘conclusive’, irrebuttable proof. Along the way the court had to deal with the fact that the Afrikaans text of the statute – the one signed by the State President and therefore authoritative – seemed closer to declaring the committee’s decision ‘conclusive’.12 The court decided that it could harmonise the two texts by taking their lowest common denominator:
