years, ‘who were prepared’, as he put it, ‘to “bend the stick” to assist their clients’. These lawyers, usually junior ones, evidently believed that in doing so ‘they were trying to level the very uneven playing fields [on which these cases were contested] a bit’. That is an understandable argument, but Arthur and George, and most of the more senior lawyers Moss engaged with, ‘ultimately placed so much value and emphasis on the importance of a legal system of integrity that they would not undermine it in this way, even when they knew that the system as it existed was distorted and damaged’.100
After the evidence was in, Arthur presented most of the argument for the defence. But before he did so, a remarkable event took place in the privacy of Arthur’s home, where the lawyers worked with their clients on many evenings after court. (Moss recalled that Lorraine’s influence at home had helped build the relationship between Arthur and his clients, as she took up a maternal role for some of them, and invited them to dinner before the consultations, with good food and wine.) One evening Arthur was looking at the heads of argument led by the prosecutor. They were a travesty, Moss recalls, because they raised a host of matters that had never been addressed in the trial evidence. Arthur threw the prosecution’s heads of argument against a wall and said something like ‘I can’t believe I have to put up with this shit’. This was perhaps the only time Moss ever saw Arthur lose his self-control – and a rare moment in Arthur’s life.101
Why did Arthur lose his temper, and so dramatically? Certainly one reason would have been that as the end of this long trial approached, he was tired. But it is striking that Arthur was not upset in this way by the sheer fact of the trial, in which young activists faced the potential of long prison terms. That was part of the system, and he could fight it within the system’s rules. What distinguished this moment was that the prosecutor had filed papers that lacked legal and ethical integrity. At this moment and throughout his career, Arthur expected better from the law.
In court, George Bizos recalls that the magistrate asked no questions during the argument, which might have been a sign that he was persuaded – but the defence worried that ‘the Soweto uprising, the banning of trade union advisors and the frequent threats by the prime minister and his cabinet ministers to end the activities of white agitators might unduly influence the magistrate’s decision’.102 The magistrate adjourned court for more than a month to prepare his judgment. Meanwhile, Moss realised that if he was convicted and then jailed at once, he would be unable to write the dissertation that he had to submit early the next year to complete his honours degree – which he had been able to pursue because the accused had been out on bail during the trial. The attorney Ray Tucker advised Moss ‘to pack a small case with toiletries and a few other essentials’, and Arthur promised to have a bail application ‘with him in court, and [to] be ready to argue immediately should that be necessary’.103 The lawyers’ attention to their clients’ well-being is evident in these steps, but, as it turned out, they were unnecessary. The magistrate took two days to read his judgment, and in the end acquitted all five of the accused.
*
The last political case in which Arthur was involved before establishing the Legal Resources Centre was S v. Sexwale, the case of the ‘Pretoria Twelve’, which began in 1977. He appeared with his old friend Denis Kuny, and with another advocate, L.G. Bowman; this was also the second case in which he worked with Geoff Budlender, who was still with the attorney Raymond Tucker. It was not inevitable that Arthur would appear in this case, for in fact a number of the accused – young men influenced by black consciousness thinking – wanted to be represented by black lawyers. But Joe Gqabi, whom Arthur had represented in the mid-sixties, insisted on getting Arthur. Gqabi, a veteran of ten years on Robben Island who had returned to the armed struggle after his release, must have been someone whose views were taken seriously – Sexwale said that the debate wasn’t a contentious one – and Arthur became the lead counsel in the case.104 Over time, as his client Pauline Mohale, the only woman among the twelve accused, would recall, ‘we felt so safe in his hands’.105
This was a case of unusual procedural turns and extraordinary facts. To begin with the procedural turns: the accused were indicted in March 1977 and trial began in June 1977, and continued till September of that year. Then the case was adjourned till November, evidently to give the defence time to prepare, but shortly before the case was to resume, the trial judge, Davidson, died. That meant, as both the state and the defence agreed, that the trial had to start over, so that the new judge could hear the evidence himself – though the testimony from the first run of the case could be used in cross-examination.106 Meanwhile, a new and potentially applicable criminal statute had been enacted, and the state had prepared a new indictment, almost identical to the original but not quite, because it added one new charge. Arthur argued that the case had to proceed under the original statute and the original indictment, and the new judge agreed with him.107
But even before Davidson died, another procedural issue, one with profound ramifications, had arisen. This was the question of whether the court would permit a witness for the state to testify in camera – that is, without the public present (the news media would have been allowed to be present and to report the facts testified to, but not the witness’s identity). The witness, who was not named in the court’s decision, had stated in an affidavit that after testifying in previous trials ‘he was subjected to threats against himself and his family and there was an attempt to burn down his house. He says – and I do not for a moment disbelieve him,’ wrote the judge, ‘that he fears there may be similar reprisals if he gives evidence publicly in the present case.’ The judge went on to say, ‘I cannot overlook the possibility that this harm may be done to him despite the fact that all civilized people would condemn such reprisals as being a horrifying way of facing the facts deposed to by a witness whether they be correctly deposed to or not.’108
This witness’s fears were neither unique nor irrational. Dikgang Moseneke, who represented many activists beginning in the late 1970s, has written that ‘witnesses regarding what each accused person was supposed to have done were hard to come by. No one – neither the accused nor innocent bystanders – dared testify against activists in an open court.’109 It may well have been partly for this reason that conviction rates in political cases appear to have been well below 50 per cent in most of the period from 1986 to 1989, when state efforts at repression were likely intense.110 For a state witness to testify in public – a traditional guarantee of a fair trial – might mean death. This was a crucial issue, and Arthur opposed the request for in camera testimony. Judge Davidson agreed. He reasoned that public hearings offer the public a chance to learn of false testimony and contradict it. But his main point seemed to be that it was in fact impossible to ensure the witness’s safety even if he testified in camera; there were too many ways that news of what he had said could make its way out of the courtroom.111
Fear of violence was not the only emotion that a witness for the state might feel in testifying in public. Apparently, when Judge Davidson decided that the trial would be open, another witness was already testifying, and had given extensive, damaging and, the accused told the defence counsel, accurate evidence. As Geoff Budlender recounts the story, Arthur did a couple of hours of cross-examination that same day, but to no important effect. The next day Arthur asked a few more questions and suddenly the witness said, ‘You’ve caught me. I can no longer go on lying.’ Then the witness declared that everything he had previously testified to was false, and Arthur took him through his prior assertions, getting him to confirm their falsity point by point. Geoff describes this as Arthur seizing an opportunity in a masterly way and then maximising it – and the reason that it worked was that among the members of the public who were present for the second day of this witness’s testimony was his sister. He preferred to be returned to imprisonment rather than be seen by her to be betraying the struggle.112 On the basis of Glenn Moss’s summary account of the trial proceedings, it seems this witness was Ian Deway ‘Inch’ Rwaxa; unfortunately for the accused, when Rwaxa was re-called to testify in the second trial, he recanted yet again, and provided testimony for the state.
