Winnie Mandela’s ‘inspired decision to have Nelson’s answer read to thousands of people by his daughter’. He also recalls that ‘from this high point, her lack of judgment progressively diminished her stature and sullied her reputation. For Nelson, her family, the movement and the nation it was a serious embarrassment. For Winnie, it was nothing less than a tragedy.’54
For Arthur, though, these moments marked a melding of his responsibilities. To help Winnie Mandela to decide on the strategy by which Nelson would communicate with his people, Arthur needed to give advice that was not just legal but political as well. Arthur had assisted Nelson Mandela in his Rivonia defence, including Nelson’s shaping of his historic speech from the dock, and it is possible that he had similarly aligned himself with his clients’ political aspirations in other cases over the years too. But Arthur may also have been undertaking a level of political engagement here that he had not attained in the intervening years: he himself may have been evolving. His son Matthew believes that Arthur’s politics did not remain fixed, and that instead he developed from someone with a broad liberal disposition against apartheid into someone firmly committed to a social democratic transformation of South Africa. While dating the time of this change is not possible, this moment of advising Winnie Mandela reflects the changes that were under way.
*
In the years following the Rivonia trial, with the ANC’s underground structures inside South Africa largely in disarray, the organisation’s exiled leaders in London began recruiting volunteers there to carry out missions in South Africa. These missions ranged from setting off ‘leaflet bombs’ – which used a very small explosive charge to lift a mass of leaflets up high enough in the air to disperse and distribute them in the area – to more military steps such as the scouting of landing sites for ANC guerrillas arriving by sea. For some years these volunteers escaped detection, but that period came to an end with the arrest of Sean Hosey and Alex and Marie-José Moumbaris in 1972. Hosey recounts that he walked into a trap in South Africa; after that he endured months of brutal interrogation by the security police. He was tried, along with Alex Moumbaris (Marie-José Moumbaris, who performed her undercover work while pregnant, was released after four months’ detention in response to political pressure from France, of which she was a citizen) and four Africans who evidently were among those being infiltrated into South Africa.55 Hosey was convicted and sentenced to five years’ imprisonment. He writes that his lawyer, George Bizos, ‘thought it was worth an appeal, but I never held out much hope, and so it proved’.56
Arthur, with George Bizos, handled this appeal, S v. Hosey, which was argued and decided in November 1973. The appeal was brought only on Hosey’s behalf, perhaps because the case against the others was even more clear-cut. It was, indeed, a difficult appeal, and despite Arthur’s best efforts it failed. The court’s attitude was foreshadowed by its comments on a charge of which Hosey had actually been acquitted. This was that he had ‘distributed subversive propaganda pamphlets’ in Cape Town in August 1971.57 He denied – falsely58 – that he had been involved in the leaflet distribution, and the judge who wrote for the Appellate Division commented that his testimony in this regard was ‘most unconvincing’.59 Bizos recalls that another member of the court said during the argument of the appeal that Hosey had been lucky to get off on this count.60
As to the charge on which Hosey had been convicted, which was that he had attempted to deliver to a terrorist money and falsified documents, it was impossible for Hosey to deny having done so – this was precisely the trap into which he had fallen. Hosey testified, however, that he had not done so with the purpose alleged in the indictment, namely ‘to make war against, and to incite violent revolution in the Republic’. He claimed that he had been told that what he was carrying would go to trade union activists, and there was no evidence that he knew the people he was trying to reach were terrorists. But the court said that the facts made clear that he knew he was acting with an unlawful purpose, and therefore invoked the statutory presumption in the Terrorism Act that ‘the intent underlying his said deliberate act was to endanger the maintenance of law and order in the Republic’. The court also said there was ‘no merit whatsoever’ to Arthur’s argument that Hosey’s actions could not have caused any of the harms identified in the statute – as was required for conviction – because the person to whom he gave the materials was in fact a police agent; as the court said, what Hosey attempted to do was to give the materials to someone who was not an agent at all.61
Hosey was sentenced to five years’ imprisonment – in Alex Moumbaris’s words, ‘the minimum, what some comrades called a parking ticket’.62 The stakes in these cases remained high. Moumbaris, for his part, had received twelve years, but he would not serve his full term, because he and two others succeeded in escaping from prison after seven and a half years of his term.
*
In 1964 the Rivonia trial ended, and Arthur’s full-time engagement in political litigation – though not his part-time and even intense involvement – came to an end as well. Arthur could hardly have been more completely involved in a case than he was in Rivonia, and it seems possible that in the years that followed part of what he did was to restore his energy. His commitment to the political struggle was as strong as ever, but the sheer tasks of handling one case and then another may have been demanding. If they were, then over time he came to meet these responsibilities; by 1975 Arthur was involved in full-time litigation that would underline the political engagement he was now embracing, and that would lead soon to an even more complete involvement, in the creation of the Legal Resources Centre. There were two of these cases, one not involving violence, the other emphatically and undeniably featuring it.
*
In 1975 and 1976 Arthur led the defence team for the ‘NUSAS Five’, five leaders of the National Union of South African Students who were placed on trial for a conspiracy ‘to further the aims and objects of communism, the ANC and SACP’. More specifically, the charges ‘related to calling for the release of political prisoners, encouraging black workers to form trade unions and aspiring to change South Africa into an egalitarian society’.63 The students’ efforts reflected the rise of white student activism directed against apartheid, a development opening another front in the swelling range of opposition to the government. The trial was in progress when the mass demonstrations in Soweto on 16 June 1976 made it clear that the African population of the country had not been subdued. Bizos writes that ‘we soon realized the significance of the trial. If the State made the charges stick, it would close down much political activity that was still permitted. Anyone, for example, urging that political prisoners be released was at risk of being successfully prosecuted just because the ANC had made a similar call.’64 Arthur would say in court that ‘if they are going to be found guilty then heaven help this country, because I think it will mean that nobody could say anything at all’.65
The NUSAS trial lasted for a year, ‘from date of first court appearance to conclusion on 2 December 1976’.66 It was Arthur’s most intensive commitment to a political case since Rivonia and also appears to have marked his return to political cases after some time away from them; the Hosey case had ended two years before this one began. Geoff Budlender, who was then doing his articles of clerkship with the attorney in this case, Raymond Tucker, thinks that Tucker was the person who brought Arthur back to political casework.67 Representing five influential figures in the student movement of the day – Glenn Moss, Charles Nupen, Eddie Webster (actually a lecturer rather than a student), Cedric de Beer and Karel Tip – Arthur and his colleagues, George Bizos and Denis Kuny, fought successfully to win acquittals of all of them.
Several points about the trial are important to discuss here. One was the lawyers’ relationship with their clients. It was not inevitable that Arthur would represent the NUSAS accused. Glenn Moss recalls that the accused considered two or three other senior counsel to lead their defence but had objections of one sort or another to them. When Raymond Tucker, the attorney on the case, proposed
