reluctance of witnesses to testify presented another issue in this case as well. Between the first run of the trial and the second, six witnesses from the first trial apparently made themselves scarce. ‘One witness was beyond the jurisdiction of this court,’ wrote Judge Myburgh, ‘and five could not be traced.’ All of them had testified, and all but one had been cross-examined at length (and Arthur and Denis Kuny had informed the court that they had no questions for this one). South African law gave the court discretion in these circumstances to allow the first-trial testimony to be used in the second trial, or not to do so. Judge Myburgh explained that ‘the question then arose whether I should exercise my discretion without reading the evidence but on the general principles and what counsel would tell me of the contents thereof’. Arthur argued for this approach. He lost this battle but seemed to win the war, as Judge Myburgh carefully analysed the testimony of each of the missing six witnesses and decided to admit the testimony of just three in which he saw no possibility of prejudice to the defence.114
All of this, however, leaves out perhaps the most striking feature of trials of this era – that the state was using torture to extract testimony. This was a moment when lawyers inevitably found themselves fighting, tacitly but still plainly, over the physical well-being of the witnesses before them, with the stakes being the outcome of the trial. We have already seen that a witness permitted to testify in camera could escape public scrutiny and with it the test of truth that such scrutiny generates. At the same, for a state witness to testify in camera meant that the witness had no protection from the possibility, or rather the likelihood, of torture. Lee Bozalek, then in private practice in Cape Town, recalls reading press coverage of a state witness who testified that he had been tortured, and expected to be tortured again when he was returned to the cells (presumably because he had said things the police did not want to have spoken). Arthur was cross-examining this witness and said to him, ‘Everyone here in the courtroom knows what happened to you, and hopefully that will offer you some protection.’ Bozalek felt that this was an example of Arthur saying precisely the right thing at the right time.115 But really there was nothing Arthur could say that would fully protect the witness from the fate that might await him in the cells.
As always, Arthur was very much concerned with how his clients were faring as individuals under the brunt of state power. He was, Sexwale felt, a person with the spirit of humanity or ubuntu. Sexwale recalled that Arthur would even bring Lorraine to visit from time to time; indeed, Arthur was sharing his whole family with the accused, and Arthur himself was very, very kind. Arthur would want to know how you were doing, how you slept. Sexwale, whose girlfriend was pregnant, wanted to get married in jail, and Arthur engineered this. Sexwale’s only objection was that behind his back, Arthur discussed with the other accused the likelihood that he would be the one to hang. As a result his colleagues began treating him with kid gloves, and this Sexwale objected to – it was as if he were already a dead man. He raised his objection with Arthur, who laughed and said, ‘You know we understand, we’re praying for you,’ and – a mark of Arthur’s deep understanding of the situation his clients were in – that he knew Sexwale was a soldier.116
Among the accused, Pauline Mohale may have suffered most of all, because even after the accused were formally charged – and therefore became ‘awaiting trial’ prisoners, a much more protected status than that of detainees – she remained in solitary confinement in the women’s prison, unable to benefit from the support of her male co-accused, all detained in another facility. She told me she was tortured in detention, including with electric shocks, and on the third day after this torture she collapsed and lost consciousness. In December 1978, as the first judge was preparing to recess the trial until December, Arthur moved for her release, in part on the grounds of the suffering she was enduring; the judge denied the motion, and she broke down and wept in court. Arthur too was very sad; Mohale remembered that he didn’t know what to say to her, but he did say, ‘You must keep strong.’ Arthur and Raymond Tucker had also guided Mohale in enduring her ordeal: they advised her not to care about who might be listening, but to think aloud, sing and scream as she wanted – and she took their advice. She considered Arthur ‘a father, a mentor, a priest’, and while the trial slowly progressed, over the lonely weekends she looked forward to court on Monday because she wanted to see and talk with her lawyers. Eventually Mohale was acquitted, and in later years Arthur would invite her to events such as a reception at the Rivonia farm, but she feels she emerged from confinement a different person than she went in.117 It is easy to understand how acute Mohale’s suffering must have been; less obvious, perhaps, but also important to understand is how disturbing it would have been for her lawyers to be unable to prevent her suffering over the long stretch of this trial.
All of these events, of course, bore on how the facts of the case would emerge. Michael Lobban discusses this trial in some detail and explains that the state’s case had two central themes. The first was that the accused had planned and carried out military attacks on the state; the second, that the ANC was in league with the student activists of Soweto. On the issue of military activity, Lobban says, ‘the state had the advantage of clear evidence against a number of the defendants that could hardly be disputed’.118 The most dramatic evidence may have been the story of the arrest of Tokyo Sexwale – who would, after the end of apartheid, go on to become the Premier of Gauteng Province and a leading businessman. Back in 1976 Sexwale and three other guerrillas were captured, but they were not carefully searched, and so, as they were being transported by Land Rover after their capture, Sexwale threw a grenade into the front of the car, injuring the police who were transporting them. Sexwale and his comrade got away, but would subsequently be recaptured.
The upshot of the trial was that six of the accused were convicted, but six were acquitted. Among the latter was Joe Gqabi – who would flee the country two months later and rejoin the ANC abroad. Judge Myburgh found that the six he convicted were part of ‘the ANC’s conspiracy of violence’,119 but he did not accept the alleged link between the ANC and the students, and he acquitted six of the twelve accused based on what Lobban calls ‘a careful weighing of the evidence and a precise examination of the charges’.120
He also imposed relatively light sentences – Sexwale received the heaviest, 18 years, for what was clearly an attempt to kill his police captors. As Sexwale recognised, other accused in their cases got more time for doing less.121 In another recent trial, for example, five of those convicted had received life imprisonment. Lobban sees these results as reflecting Judge Myburgh’s ‘analy[sing] the evidence against each of the accused in a precise and careful way, in order to establish which parts of the case had been made out and which had not’,122 and no doubt that is correct. But that precise analysis is also a hallmark of Arthur’s lawyering, and it is hard not to think that the judge’s decisions also reflected the tremendous care that Arthur and his colleagues brought to the defence.
Sexwale, like a number of Arthur’s professional colleagues over the years, was struck by Arthur’s sheer tactical skill. Sexwale made a statement from the dock, as Nelson Mandela had before him – and from the same spot in which Mandela had sat during the Rivonia trial. Arthur knew that the statement included no request for mercy and no expression of remorse; but when the prosecutor objected on that ground, Arthur came up with a precedent involving Afrikaner revolutionaries who had taken another stance – and the court agreed that mercy was an element of justice and so did not need to be asked for. Nevertheless Arthur, showing as in NUSAS that he was prepared to make a firm decision about a case when that was called for, apparently insisted that Sexwale include Mandela’s language about accepting the death penalty if that was the price he had to pay, and Sexwale did so, though in his own words:
I was and I am willing to make those sacrifices. I am married and have one child, and would like nothing more than to have more children, and to live with my wife and children with all the people in this country. One day that may be possible, if not for me, then at least for my brothers.
I appreciate the seriousness of my actions and accept whatever sentence may be imposed on me.123
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