open court she swiftly dispatched Levin and retained Carlson once again as her attorney. Carlson suspects that the state hoped to use Levin to induce Mandela and her co-accused to accept convictions in return for light sentences – but Mandela was determined to fight the case. Carlson briefed David Soggot, George Bizos and Arthur Chaskalson – whom he described as ‘one of the most brilliant advocates at the Bar’ – for the defence.39 George Bizos recalls that the fact ‘that Arthur Chaskalson and David Soggot were on the case further eased [Nelson] Mandela’s anxieties’; George knew this because he had gone to visit Nelson to discuss the case.40
Trial began; the case became known as the ‘Trial of the 22’.41 With the very first witness, the defence faced a choice: should they try to bring out in cross-examination the torture that the state’s witnesses had been subjected to? Such a step might backfire, if the witnesses – terrified of what might happen to them when they returned to the cells – denied having been tortured. But they decided to try, and were able to extract from a British witness, so terrified that he could scarcely be heard in the courtroom, that he had been forced to stand for 48 hours non-stop while he was interrogated, and had been assaulted by the police as well. Once they had opened the door, defence counsel were able to continue on this course, and they elicited additional testimony about state torture from the state’s own witnesses.42
Late in the year the court adjourned till mid-February. Bizos writes that ‘as our clients remained in custody, Arthur Chaskalson, David Soggot and I visited them regularly to prepare their defence’. But when the case resumed, suddenly and without warning the state moved to withdraw the charges, the trial judge accordingly ordered the accused acquitted – and then the security police returned the accused to detention without trial.43 Their continued detention ‘became quite a major cause célèbre’ and prompted student demonstrations including a march on John Vorster Square, the police headquarters. During these protests Glenn Moss was arrested for the first time; a few years later he would become a client of Arthur’s too.44
Over three months later, new charges were filed against almost all of the accused, and against one other person who had no direct connection with the accused or the case against them whatsoever. The state’s hope was that the new indictment would be the basis for restarting the trial, despite the earlier acquittal. By now Arthur was no longer in the case, but his friend and colleague Sydney Kentridge succeeded in demonstrating to the trial judge, through a three-day argument, that principles of double jeopardy (in South African terms, autrefois acquit) required the acquittal of all the original accused.45 And then, within a few days, Winnie Mandela and her co-accused were served with banning orders, which broadly speaking ‘meant they could not make any formal plans to meet one or more persons, anywhere at any time, during the next five years’.46
Meanwhile, during the trial, there had been one other important development: the home of the attorney, Joel Carlson, was attacked one night with a Molotov cocktail, while his carport and car were shot at. The house did not burn down, but that did not seem to be due to any restraint on the attackers’ part: the Molotov cocktail ‘had been thrown at the study window’ – the study being full of papers – ‘but had hit the stone wall underneath and exploded against it’. Carlson did not realise what had happened till the next morning; then he called George and Arthur and they were soon on the scene. Carlson did not dare to state to the authorities what he was sure was the truth, that the police themselves were behind the attack – because he feared being taken in for questioning by the security police himself. If there was any doubt in the lawyers’ minds about the potential risks they were running, this attack made their situation clear – and fortunately did not result in any injury or loss of life. Carlson’s office would soon be shot up too, and an explosive device sent to him in the mail. Carlson would leave South Africa in 1970, followed soon by his family, and not expecting to return until apartheid ended.47 The effort by the Ndou police or prosecution to trick Winnie Mandela into accepting representation by someone who amounted to an impostor, Mendel Levin, was of course a clear breach of the rules of legal practice – but a fire-bombing was even worse.
After the Ndou case, Arthur continued to take cases on Winnie Mandela’s behalf, with George Bizos. She was now banned. Bizos writes that her ‘acquittal only made the authorities more determined to get her behind bars’, and observes that ‘it was virtually impossible for any banned person to live and work without falling foul of the banning order’s many and ambiguous restrictions’.48 As one case explained, the ban meant that she could not receive any visitor at her house. But she was arrested after a relative came to her house to pick up a grocery list so that he could shop for her. In S v. Mandela (1972), Arthur succeeded in persuading the Appellate Division that this relative, arriving at the house for this narrow purpose, did not amount to a ‘visitor’, one who would have social intercourse with the people at home. The court – clearly not enamoured of the banning statute – also ruled that another potential ‘visitor’, found hiding in the bedroom, might just as well have been a visitor to Mandela’s sister, with whom she lived, as to Mandela herself, and reached a similar conclusion as to a third person who was also in the house. George Bizos would write that he and Arthur had ‘indulged in a combination of Talmudic and Byzantine hairsplitting’ to establish Mandela’s defence.49
The state did not give up, and in 1974 Arthur was back in court, again with George Bizos, on Mandela’s behalf. This time the case grew out of Mandela’s efforts to see her ‘two young daughters’, who were ‘at boarding school in Swaziland’ but came back during the holidays to Johannesburg.50 Seeing her daughters was permitted; meeting with someone else was not. The Appellate Division concluded, on the evidence, that she had actually got into the van carrying her daughters, and spent 45 minutes there with not only her daughters but also the driver of the van, the famous photographer Peter Magubane – thus violating her banning order. But it rejected a separate charge, which rested on the notion that the daughters had served as indirect communicators or intermediaries between the driver and Mandela on two other days – that is, they had carried their mother’s message. As Arthur had argued, the court concluded that the charge had rested on direct communication, rather than indirect, and that therefore the conviction could not stand. The court also pointed out: ‘if the matter had been fully investigated upon a proper charge alleging communication between the appellants with the children as intermediaries, it is quite conceivable that it could have transpired that they were acting as principals on their own behalf in requesting Magubane to convey them to various places in town to meet their mother’.51 Both Mandela and Magubane had been sentenced to a year in prison for this ‘offence’; the Appellate Division concluded that the one conviction it upheld still justified a sentence of six months, which Mandela served.52
Arthur remained involved in Mandela’s legal travails as a trusted adviser to George Bizos. When Mandela came out of prison ‘in April 1975 her banning order had expired and for the first time in thirteen years she was comparatively free’. But during the Soweto uprising – the massive demonstrations starting in June 1976 that marked the return of mass resistance to apartheid in South Africa – Mandela was detained again without trial for more than four months. Then the government, fearing her continued presence in the Johannesburg area, banished her in mid-1977 to Brandfort, a dreary town in the Orange Free State, far from Johannesburg. George Bizos went to see her, and consulted Arthur about whether anything could be done, but ultimately had to tell Nelson Mandela that the answer was no. Winnie would be charged and convicted again for violating her ban, and would ultimately return to Johannesburg in 1985 after her house in Brandfort was petrol-bombed and gutted. She would resist the authorities so adamantly that they gave up their efforts to expel her; Bizos writes that she was ‘effectively unbanning herself’.53
Meanwhile, the State President, P.W. Botha, in 1985 offered to release her husband Nelson Mandela from prison if he agreed not to plan ‘any acts of violence for the furtherance of political objectives’. Winnie Mandela visited Nelson and was now ready to deliver his response – which, Bizos writes, ‘was studied by Arthur Chaskalson and me
