the accused’s various writings were not Marxist, though he hesitated on this score about Moss’s work. But the accused felt that ‘one of the political themes of the early 1970s had been the critique and rejection of liberalism, and all of the accused were loath to retreat from this as part of a defence strategy. We agreed that Du Toit’s well-intentioned agreement to testify in our defence, which might have negative personal and career consequences for him at Stellenbosch University, should be declined.’81 Here too it seems that counsel were guided, at least in part, by the political commitments of their clients.
A second issue of importance in the trial involved the cross-examination of the witnesses for the state. In this case and the Pretoria Twelve case that followed it, we can see Arthur at the height of his powers as a cross-examiner. There is some debate among his friends about just how good a cross-examiner he was. Joel Joffe described Arthur to an interviewer as a ‘very competent though not brilliant cross-examiner’.82 Denis Kuny told me that he never thought Arthur was particularly good at cross-examination, and mentioned that Arthur was almost apologetic with his cross-examination questions.83 On the other hand, Karel Tip, on trial in the NUSAS case, remembers Arthur’s meticulous preparation and attention, and his extremely accomplished cross-examination (and equally impressive leading – direct examination, in American terms – of witnesses for the defence).84 Charles Nupen said that Arthur would progressively corner a witness, and that while he was not flamboyant, reading the record at the end would reveal his precision and artistry.85 Geoff Budlender offered a nuanced appraisal: he said that Arthur didn’t have the feel for a lay witness’s vulnerabilities that George Bizos did – but, as we will see, Arthur could nevertheless master a body of information and wield it to powerful effect against such a witness. And as to experts, who seek to operate in the world of logic, Arthur’s logic was, to Geoff’s mind, simply superior and his cross-examination of such witnesses especially powerful.86
Here in the NUSAS Five case, although the state had downgraded this trial, it still chose to bring to court two witnesses who had each appeared in important cases in the past. Arthur, who would also present the bulk of the argument on behalf of the accused, cross-examined both of them. One, already mentioned, was Bartholomew Hlapane. Hlapane, an ANC turncoat, had been a central witness in Bram Fischer’s trial. Now, as Glenn Moss recounts, Arthur was able to demonstrate that ‘there were serious discrepancies between his new evidence and what he had said previously’. Moss writes that ‘Chaskalson’s cross-examination of Hlapane was devastating, and we believed that the state would no longer be able to rely on him as a witness in future trials’.87 (In fact, however, Hlapane would testify once more, in a trial in 1976.88) But the purpose of this cross-examination was not simply to undercut Hlapane’s testimony against the accused. As Moss saw it, ‘Although [Hlapane’s] evidence was not of great relevance to our trial, George and Arthur were trying to ensure that he would never again be called as a witness. There was also a sense that they were settling accounts with Hlapane’ for his role in convicting Bram Fischer.89 No doubt the accused were happy to contribute to these objectives, as Moss confirmed.90 But it is striking that Arthur and his co-counsel seem to have been playing both a short game, defending these clients, and a longer one, strategic, political and perhaps a bit personal, seeking to affect the course of other cases yet to come.
Arthur cross-examined one other prominent witness in this trial, the University of Cape Town professor of philosophy, Andrew Murray. Murray had been a witness in the Treason Trial of the 1950s too, and his assertions that the ANC’s activities were Communistic had been compellingly cross-examined. Yet here he was again, to assert that a new generation’s activities were also Communist. As Geoff Budlender tells the story, he prepared an extensive file documenting all the ways that Murray’s testimony could be challenged. Arthur thanked him, but said he wasn’t going to go that way; instead, he was going to turn Murray into a witness for the defence. This he proceeded to do. He softened Murray up by presenting him with a series of statements and asking if he agreed with them; when Murray said he did not, Arthur showed him that he had himself made those statements, with which he then expressed agreement. After enough of this Murray realised that if he didn’t take the view Arthur wished, he faced imminent contradiction, and so he began agreeing to whatever Arthur put to him. Murray left the stand feeling he had testified well, but it was only the defence who cited what he had said in closing argument – and he was never used as a prosecution witness again. Here too we may guess that the defence counsel were playing both a short and a long game.91
Arthur also cross-examined a police witness, Derek Brune, who while a police officer had become a vice president of the Wits Student Representative Council at the time that Glenn Moss was president. Brune, whose fellow students had felt he so lacked political conviction that they had assigned him the role of ‘internal vice president’, with responsibilities for various administrative matters – a role he had performed well – attempted to show that NUSAS was in the hands of a radical left ‘clique’, by implication a conspiracy. Moss felt that Arthur’s ‘cross-examination of Brune was masterful. Slowly, he undermined the picture Brune had painted. Brune was forced to admit that he was skilled at lying and deception and, by inference, that his evidence should not always be believed.’92 Bizos similarly reports that ‘under cross-examination by Arthur Chaskalson, gentle persuasion would inevitably lead [Brune] to the desired concession … It was clear from his evidence that he knew of no conspiracy to commit any crime.’93
A third issue of importance that the trial raised was the preparation of the testimony of the accused. Four of the accused testified; the fifth, Karel Tip, wanted to testify but accepted his lawyers’ ‘view that it was not necessary’.94 The lawyers agreed, however, that Moss ‘was the accused most in danger of being convicted’, and so his testimony was ‘critical’. Bizos took on the task of preparing Moss to testify. According to Moss, ‘George Bizos has a way of protecting clients from rash political assessments and statements without compromising fundamental principles.’95 The preparation was intense: ‘Over a period of six weeks, we met many nights at his home after long and sometimes tedious days in court.’ This intense preparation raised yet again the issue of ethics, and specifically the scope of legitimate witness preparation. In the course of their work together, George decided to
play the role of prosecutor, asking me questions, cross-examining me on my responses. If he felt that my response was problematic, he would look at me severely: ‘That cannot be right,’ he would say. ‘Why not?’ I would counter, ready for an argument. ‘Because you have pleaded not guilty, and your answer puts that plea in question.’ Then I would understand that I needed to polish my answer to a finer finish.96
George confirmed to me that Moss had caught the flavour of his witness preparation in this account.97
But there were limits to the refinement Moss would undertake. He and George clashed over whether his views could be said to fall ‘within the ambit of liberalism or at least radical liberalism’. Moss insisted that his position was ‘informed by democratic socialism’; George responded that he was then a social democrat of the sort seen in Europe.
No, I explained, there is a world of difference between social democracy and democratic socialism. Yes, said George, that might be the difference between you being acquitted and being found guilty and taking your co-accused down with you.
We could not resolve this, and George finally advised me to deal with the issue as best as I could, bearing in mind my responsibility to both myself and the others.98
And fortunately the matter never came up in court.
This was vigorous witness preparation, to be sure. Arthur’s own witness preparation seems to have focused less on helping each witness prepare his testimony, but instead on the importance of the stories’ fit with the overall strategy of the case; ‘you must formulate your position,’ he might say. Neither of them, we may say, was in the business of embarrassing
