that would be the statute’s meaning. And since the magistrate in the original trial had treated the committee’s decision as conclusive rather than just prima facie evidence, Moroney’s conviction and sentence were set aside.
*
In Wentzel v. SA Yster en Staalbedryfsvereniging; Wentzel v. Blanke Motorwerkersvereniging, Arthur assisted Sydney Kentridge, who by then had taken silk, in representing the prominent liberal advocate Ernie Wentzel, a close friend of Arthur’s who was a leading member of the small group of anti-apartheid lawyers of which both Arthur and Sydney were also part.13 Wentzel himself was, like many members of the Liberal Party, a radical opponent of apartheid. He was detained by the government during the 1960 state of emergency following the Sharpeville killings, may have played some part in the re-evaluation of non-violence that the government’s repression triggered, and in 1963 urged the Liberal Party to rename itself as the Socialist Party of South Africa, to reflect its ‘social democratic character’. In 1964, in addition to bringing this defamation case, he was detained again, and this time was interrogated by the security policeman Swanepoel – whom we have encountered before – and suffered a heart attack while in detention.14
For his efforts Wentzel ‘was subjected to the abuse and vilification that was the lot of the liberal’.15 But he sought and received damages (R3,200 plus costs – a significant sum) based on a 1963 article in a publication called The SA Worker which, he contended, linked him to Poqo, a militant revolutionary group connected to the Pan Africanist Congress, and portrayed him as someone who approved of murder and violence. The case was argued on 30 November and 2 December 1964 but not decided until 13 March 1967, more than two years after it had been argued. The judgment, which engaged with the complex South African defamation doctrine of animus injuriandi, essentially declared that even if the defendants had no intention to unlawfully defame Wentzel – because their objective was merely the ‘lawful’ one of ‘in large part stopping racial equality in trade unions’ – they had gone well beyond the bounds of legitimate advocacy for this purpose and so they were indeed guilty of defamation.
*
After Bram Fischer was captured, he was convicted in a trial that began in March 1966. Arthur was engaged in another political case, and so could not play a full part in Fischer’s defence; that trial was the case of Johannes Andreas Theron, in which Arthur appeared as a junior counsel, led by a more senior advocate, J.F. Coaker.16 It’s a measure of the extent of Arthur’s involvement in political cases after Rivonia that this was at least the second time in less than two years that Arthur was engaged in two political trials at the same time.
Theron was a senior warder at the Cinderella prison in Boksburg, and he had done something that outraged the National Party government: he had provided the Rand Daily Mail, the liberal, English-language Johannesburg newspaper, with information about brutal mistreatment of prison inmates, and the paper had published a series of articles based on his testimony. In retaliation, the government launched prosecutions of all the sources for the paper’s prison stories, and of the editor, Laurence Gandar, and the reporter most responsible, Benjamin Pogrund.17 The trial of Theron was a dramatic affair, full of charges and counter-charges. In his cross-examination of state witnesses, Arthur put to at least two of them that their entire testimony was false.18
In final arguments at the trial, Arthur clashed with Percy Yutar, the lead prosecutor in the Rivonia case who was prosecuting this action as well. Arthur complained that Yutar was interrupting his argument inappropriately, and at one point commented, ‘I’m afraid my learned friend [Yutar] is again wrong.’ At another moment, Arthur addressed a particular piece of evidence and said, ‘Well, I don’t understand it. Either it didn’t happen or the evidence is deliberately perjured.’19 But Theron was convicted in the magistrate’s court on nine counts and sentenced to 52 months in prison.
The argument of the appeal in the Supreme Court took seventeen court days. Percy Yutar presented most of the argument for the state. At one point he argued that some of the evidence cited in the defence heads of argument didn’t in fact support the defence position. He disclaimed any intent to say that these mistakes were intentional. ‘On the contrary,’ he was reported to say, ‘he was amazed by the amount of hard work the defence had done, and he was certain that no client could have expected more of counsel.’20 Compliments to the defence from the prosecutor should not necessarily be taken at face value, but Yutar was not wrong about the extent of the effort the defence had made in preparation.
The work of Theron’s counsel can be seen in the 181-page draft of the heads of argument on appeal that they prepared. This document, which was part of Arthur’s papers and which is extensively marked up in his hand, was probably primarily Arthur’s work; junior counsel were typically responsible for working through the details of a case, though few could have worked through them as thoroughly as Arthur did here. The draft parses the record, thousands of pages in length, in great detail. It bluntly and extensively attacks the credibility of the state’s witnesses. It also reflects a striking confidence in the integrity and discipline of the Supreme Court judges who would hear the appeal: quite often the heads of argument state a particular argument and then cite passages from the record without any further explication of what those passages say. It seems that Arthur and his co-counsel were confident that the judges would read and see what the defence counsel saw in these pages. Perhaps they also hoped that as the judges worked through the citations they would make the defence arguments their own in a way that they might not have if more had been spelled out for them.
Nevertheless, the result of these efforts was mixed. On appeal in the Supreme Court five of the nine counts on which Theron had been convicted were overturned, and his sentence reduced from 52 months to 24 (and in effect to 16, because two sentences were concurrent). Not long after this decision, in early December 1967, Theron decided to drop his potential appeal to the Appellate Division and went to prison.21
*
Legal struggle also continued on behalf of those who sought to use armed force, and the cases brought again illustrated both the range of efforts by those prepared to fight the state and the intensity of the government’s legal attack on these persistent opponents.
*
The ANC was not the only group to turn to armed struggle in the early 1960s, nor the only group whose members Arthur represented as a result. In addition to the Letsoko case involving the Pan Africanist Congress (see Chapter Four), and the Rivonia trial about the ANC, Arthur also joined the defence team in the case of S v. Hirson and Others, which dealt with the sabotage campaign conducted by the African Resistance Movement (ARM). Many of the ARM’s adherents had been members of the Liberal Party, the last effort by liberals, including whites, to sustain non-racial politics in the face of the National Party government’s repression. As we have seen, Arthur had been a member of the Liberal Party for a short period during his student days, and Arthur and Lorraine were part of the liberal social world, and they knew Baruch Hirson and his family socially. But there is no indication of any kind that Arthur was himself involved with the ARM except as counsel in this case.
Arthur joined his friend David Soggot and another anti-apartheid advocate, Fred Zwarenstein, in this case. Each of them represented a different accused: Soggot represented Baruch Hirson, a Trotskyist; Zwarenstein represented Arthur and Lorraine’s friend Roman Eisenstein; and Arthur represented Hugh Lewin, a Liberal.22 (A fourth accused, Fred Prager, was acquitted.) The trial began in late 1964 and was over by 1 December of that year, almost two months before Bram Fischer would estreat his bail and go underground. The case became notorious because an ARM member, Adrian Leftwich, quickly broken by the state’s interrogation, testified against his friends and colleagues, sealing their fate. Leftwich’s testimony was so damning that after it the accused changed their plea to guilty, in the
