The case in fact was scandalous in another way as well. As Hirson writes:
The defence team was called to the judge’s chambers and asked whether they knew that members of the Special Branch were discussing the case with men who were to be called as witnesses. This had not been observed by our lawyers, and it was a valuable piece of information. At our advocates’ request, witnesses and members of the Special Branch were called to give evidence on whether they had consulted together. Each one denied the imputation, and the case resumed. The one person who knew that they were lying was Judge Bekker.24
This intervention by the Special Branch, and its discovery and revelation by the trial judge, were a blunt – though not unique – departure from the rule of law.
Presumably balancing the impact of Leftwich’s testimony with the revelation by the judge, the lawyers counselled their clients to make statements to the court seeking mitigation – rather than ‘proclaim[ing] a revolutionary message’.25 Roman Eisenstein remains outraged by his lawyer’s blocking him from speaking as he wished.26 But the sentences, which could have been very long, were relatively short – five years for Eisenstein, seven for Lewin, and nine for Hirson. Not surprisingly, Hirson recalls being appalled by a sentence of ‘more than 3000 days, an unimaginable period’, but he remarks that ‘Our lawyers were jubilant, and in retrospect, I see they had cause to be pleased’.27
Hirson’s book also offers an intriguing insight – albeit from a client’s point of view – into the lawyers’ approach to the facts. He writes:
One rule was clear. Both sides would bend and twist the facts to favour their clients. It was not the ‘truth’ that would decide the case but the argument that could stand up to scrutiny in court. It sounded strange, but it was no stranger than the laws that governed the country and, from our vantage point, no more peculiar than the falsehoods we were to hear from the Special Branch. From our point of view as much blame as possible was laid at the door of Rhoda [Prager], long since dead, and of [Denis] Higgs, who had been returned to Zambia as the result of an international outcry over his having been kidnapped.28
He adds that the accused followed the same approach in their post-conviction statements in mitigation.
No doubt this did sound strange, but it does not on the face of it reflect any departure at all from the norms of ethical legal practice. If it is possible to argue that the evidence before the court shows that someone other than the accused is the true wrongdoer, the lawyer for the accused is free – even obliged – to make that argument. Even with a confession from a client, South African rules of ethics provide that counsel ‘may appropriately argue that the evidence offered by the prosecution is insufficient to support a conviction’, though he or she ‘may not … set up an affirmative case which he knows to be inconsistent with the confession’.29 Assuming that the accused here confessed (which Hirson does not directly assert), then if counsel had ‘known’ that some claim they were making amounted to ‘an affirmative case … inconsistent with the confession’, that would have raised ethical questions – but it is unlikely that they ever reached that point.
*
In the mid-1960s, Arthur represented an ANC guerrilla, Joe Gqabi, and others charged similarly with leaving the country to seek military training. Joe Gqabi was a journalist, activist and an ANC guerrilla. In April 1963 he was tried in Pretoria Magistrate’s court on a charge of leaving the country without a permit. Gqabi represented himself at trial, and cross-examined with some passion a police witness who contended that he was a member of the ANC. But that point, however inflammatory, was ultimately irrelevant to whether Gqabi had left the country without a permit, and this he admitted he had done, arguing in an unsworn statement that he left the country in the hope of getting work as a journalist and that he did so without a passport because he ‘believed that the police would not give me a passport’ – a very plausible supposition on his part.30 For this offence Gqabi was sentenced to two years’ imprisonment, the maximum possible; he appealed, was re-sentenced (this time to two years minus time already served), appealed again and lost, despite the assistance of Ernie Wentzel.
Two years later, in May and June 1965 – while Bram Fischer was still underground – Gqabi was tried again in the Transvaal Supreme Court – this time not for leaving the country but for having ‘consented, or attempted, or taken steps to undergo military training which could have been of use in furthering the achievement of the objects of the African National Congress (or the Umkonto we Sizwe)’.31 For the state to have divided up its prosecutions in this way was oppressive, but apparently could not be successfully objected to. Gqabi was charged along with three others who had also allegedly been part of the same effort, Henry Makgothi, Samson Padana and Michael Mahlangu. George Bizos and Arthur Chaskalson represented all four of the accused, but the trial court ordered Gqabi’s case separated from that against the other three. Trial against these three went forward, while the state ‘elected … to try Joe Gquabi [sic] on wider allegations at a later stage’.32
George and Arthur divided the labour of the case: George did the cross-examination of all or almost all the witnesses, while Arthur mastered the law and the facts so as to give the closing argument on behalf of the accused. The trial judge referred to that argument as ‘his able address’,33 but it did not prevail, and these three accused were all convicted and sentenced to five or six years of imprisonment with hard labour. It seems reasonable to infer that Arthur also drafted the 35-page ‘Application for Special Leave to Appeal and the Making of a Special Entry’, submitted in July 1965 to the Appellate Division after the trial judge had denied similar requests.34 This application laid out a detailed argument to demonstrate the failings of the state’s case.
Meanwhile, Joe Gqabi would go on to be tried not only for seeking military training but for sabotage, and would serve ten years on Robben Island. News coverage confirms that George and Arthur represented Gqabi in this trial.35 They did not prevail, but somewhere in the course of his legal journey, Gqabi came to appreciate Arthur’s legal skill and, as we will see, he would insist on Arthur’s representation the next time he came before the courts, beginning in 1977, in the Pretoria Twelve case, discussed later. Arthur for his part developed ‘the highest regard’ for Gqabi, who would ultimately be shot dead by apartheid security forces while in exile in Zimbabwe in 1981; Arthur ruefully recognised that if he had not secured Gqabi’s acquittal in the Pretoria Twelve trial, Gqabi would have been ‘safe’ in prison.36
*
In the Rivonia trial, Arthur had represented Nelson Mandela and come to greatly admire him. Now Nelson was in prison on Robben Island, but his wife Winnie was blazing her own trail as an outspoken, though sometimes erratic, activist force. Arthur represented her in at least three separate cases.
The first was the most dramatic. The case would be known as S v. Ndou; Samson Ndou was one of Winnie Mandela’s co-accused, and Joel Carlson, their attorney, writes that Ndou ‘had only been chosen as the first defendant so that the name Mandela, which had so often appeared in court, would not now again appear on the court records’.37 Winnie Mandela and 21 others were detained without trial in 1969 – ‘her first major period of detention’. She was brutally interrogated and, according to her biographer Emma Gilbey, she broke.38 That was hardly extraordinary, for the police broke almost everyone.
Meanwhile, something else that was quite extraordinary happened while she was in detention: the state developed a scheme to separate her from Joel Carlson, the dedicated anti-apartheid attorney who had represented her in the past. Instead, an attorney named Mendel Levin, a flawed figure with a background of fraud, secured a power of attorney from her. Carlson reports that she went as far as to write to supporters in England saying that he (Carlson) was ‘not to
