recommended Arthur, and Tucker spoke very positively about him, and he was briefed.68
What Tip felt was that when they met Arthur, he made a tremendous impression – he was calm, confident, reassuring and very empathetic with their cause.69 Moss recalled that Arthur approached his clients with a certain reserve – he was their lawyer but not their confidant, and didn’t want to know anything about them that was not part of the trial. At the same time, he remembers Arthur as having a concern and involvement with people, and emotional integrity.70 This perception fits with Karel Tip’s recollection that in the trial Arthur was always very supportive at a personal level, and very sensitive to occasions when the clients were troubled, such as the testimony of an undercover police spy who had appeared to be their colleague. He was always there to help the accused stay calm. Over time, Charles Nupen recalled, the accused came to feel, and happily, that their future was in Arthur’s hands.71 The connections Arthur made with his clients, in this case and others, were not simply expressions of personal interest – it could matter to the case’s progress what the accused were feeling as they testified, for example. But these connections do also seem to reflect the kindness and warmth that many people saw in Arthur at home, now expanded to reach clients as well. James Joyce once said, ‘I never met a bore,’ and Arthur in truth shared a Joycean interest in others as well.72
When it began, the government intended to make the NUSAS Five trial a very visible challenge to the rising student activism. The case was first brought in the Supreme Court – but then, early on, it was transferred to the Regional Magistrate’s Court, a lower court. The top prosecutor, the Deputy Attorney General of the Transvaal, was also replaced by P.B. ‘Flip’ Jacobs, ‘a senior prosecutor with little experience in political matters’. (Jacobs would also take part in the Delmas trial, discussed later; there, late in the case, he and Arthur would speak harshly about each other’s ethics.73) Moreover, the magistrate designated to hear the case, Gert Steyn, ‘was not one of the magistrates usually selected to hear political matters’. Why were these changes made? Michael Lobban suggests that the reason was that the state’s original plan was to call Craig Williamson as a witness. Williamson was a police spy who had infiltrated the ranks of anti-apartheid students. He would go on to play this role for several more years – and apparently the government decided it was not worth blowing his cover at that stage to have his testimony in this case.74
Nevertheless, the case of course remained important to the accused, not only because of the potential sentences of imprisonment they faced but also because of their political commitments. The five faced a delicate problem: acquittal was a real possibility, but the more they trumpeted their radical views, the greater the risk that they would be convicted. As Moss writes, ‘This dictated a defence strategy to “soften” some of the politics, although without necessarily compromising the credibility or integrity of the accused and their actions.’ He continues: ‘The experience of [the legal] team guided us, ensuring that we would not compromise our political commitment in search of acquittal, but also undermining the state’s case where possible through careful and incisive cross-examination of the parade of witnesses brought to testify.’75
The defence team was respectful of their clients. This was evident, for example, in their response to Geoff Budlender. Budlender was not one of the accused, but he had been named in the indictment, and not surprisingly, since he had been acting president of NUSAS during part of the same time period when the others were active. But could Geoff play a part in this trial, given that he was himself implicated by the state’s indictment? George Bizos recalls that Arthur, ‘steeped … in the theory and practice of legal ethics … sanctioned Geoff’s participation in the defence. He accepted Geoff’s assurance that he knew of no conspiracy and that he had done nothing unlawful. In Arthur’s opinion, we should not waive Geoff’s right (and those of the accused) to be presumed innocent.’ Geoff, sometimes jokingly referred to as ‘Accused Number 6’, continued on the case.76
Geoff remembers a telling moment in Arthur’s work on the case. Arthur joined the other lawyers after they had already come together – perhaps because he had another case – and when he did so he said at a meeting, ‘I don’t understand this indictment.’ So Geoff, at that point a vastly less experienced lawyer than Arthur, undertook to explain it to him. Arthur listened politely and thanked Geoff, and Geoff only gradually realised that when Arthur said he didn’t understand the indictment, he did not mean that he was confused by it – but rather that it had no merit.77 From this awkward beginning, the long friendship between Arthur and Geoff grew.
The lawyers were also respectful of their clients’ political commitments, their right to make, or at least be fully consulted about, the choices that affected their defence. There is an important difference here between consultation and simple deference. Arthur was attentive to his clients, but as in the case of his assistance to Winnie Mandela in speaking to the nation for her husband, so here – for Mandela himself, and in other respects – Arthur was prepared to conclude that either law or politics required particular trial choices to be made. He did not make those choices over his clients’ objection, a step which might have raised acute issues of legal ethics. Rather, it seems more accurate to say that he was prepared to impose his will when he felt that was called for, and that he commanded such authority that his clients were persuaded by his urging.
Why did the lawyers defer as much as they did to their clients’ choices on political issues? Glenn Moss explained that Arthur ran the case on all the strictly legal elements, such as the interpretation of the statute under which they were charged. But with respect to judgement calls involving politics, Arthur told them that if they were convicted, they would end up serving time with political people; if the other prisoners felt they had over-compromised, their relationship in prison might start on a bad footing. And so political calls were for the clients to make unless there was a compelling legal reason for a particular decision. In short, Moss felt, Arthur understood the process of political trial. But this wasn’t all. While the exact nature of Arthur’s political beliefs was never clear to Moss, his co-accused Karel Tip emphasised that Arthur immediately came across as someone who clearly felt aligned with the NUSAS cause and campaigns.78 The accused accepted their lawyers’ judgements because they trusted the lawyers, and they did so because they were not simply legal technicians but instead had joined the accused in their cause.
So when one witness for the state, Bartholomew Hlapane, testified about the adoption of the Freedom Charter and related events – events that had taken place when the accused in this trial were small children – the defence asserted their right to call witnesses such as Nelson Mandela to refute this testimony. The state resisted, but the trial magistrate insisted that the defence could consult with Mandela on Robben Island, and so George Bizos flew to Cape Town. Mandela for his part was both supportive of the student activism that the accused represented, and quite willing to testify. The defence team concluded that bringing him to court would change the atmosphere of the trial – the state would have turned the courtroom into a high-security area, and ‘rioting and clashes with armed police’ were likely – and so advised the accused not to call him.
What happened next is not clear, because the clients’ recollections differ. Glenn Moss recalls that the lawyers left the decision to the accused; they debated the point, and although Glenn and another wanted to call Mandela, by a three–two majority the group chose otherwise and so he was not called.79 But Charles Nupen has a different and vivid recollection, which is that three of the five accused were in favour of calling Mandela, and argued that doing so would both give Mandela a chance to get off Robben Island and would add publicity to one of the causes for which the NUSAS efforts had been made, namely the release of political prisoners. But, Nupen recalls, Arthur after listening to them then said that he was running the case, and that the final decisions on strategy in the case rested with him; he did not think it would be fair to Mandela or helpful to the accused, and so the decision would be ‘no’. And that, Nupen said, ended the discussion.80
At another point in the trial, the defence
