the end succeeded in getting all but one of the harsh provisions taken out of the bill. This was arguably a real legislative victory, though the one harsh provision that remained was a new and broadly defined crime targeting ‘any act’ by two men at a party that was ‘calculated to stimulate sexual passion or to give sexual gratification’, with ‘party’ meaning ‘any occasion where more than two persons are present’.135 Penalties for such acts could include a fine and imprisonment for up to two years. This odd provision evidently stemmed from a police raid on a party in Forest Town, Johannesburg, in January 1966 which gained much public attention at the time.136
It is worth pausing here to revisit the question of just what Arthur’s politics were. He was not a Communist, as I’ve already argued. And apart from a short stint in the Liberal Party in his student days, he had not been a member of any political party. But what was he? Johann Kriegler felt strongly that Arthur was a human rights supporter to his fingertips, rather than a political partisan.137 Arthur’s longtime friend Denis Kuny agreed; he felt Arthur had no particular ideology, and that what concerned him was human rights.138 Roman Eisenstein, one of the clients in the ARM trial, similarly recalled Arthur as having no ideology or organisational affiliation, but simply a good conscience, going back to John Locke.139
All of this, I think, is correct but, for reasons we have already looked at, not entirely complete. Arthur certainly did have political views. Joseph Lelyveld of the New York Times remembers Arthur speaking sharply against America’s role in the Vietnam War in the 1960s.140 Glenn Moss, for his part, felt he never could figure out Arthur’s political views. At times he saw Arthur as having a constitutional democratic, highly principled liberal view – roughly what Kriegler, Kuny and Eisenstein perceived. But at times Moss felt that Arthur had some closeness to some of the ideals of the Communist Party. During the NUSAS trial, Moss was studying Marxism at Wits, and he remembers that Arthur was happy to engage on this subject, and knew many of the people they were studying.
Moss also remembered an incident from somewhat later, after the 1983 founding of the United Democratic Front (UDF, a leading anti-apartheid organisation of the 1980s, closely aligned with the then-exiled African National Congress). Moss was organising a public meeting, and invited advocate Ernie Wentzel to speak. Wentzel, who had been an active member of the Liberal Party, asked if there would be any mention at this meeting of a ‘people’s republic’. Moss said yes – evidently talk of a people’s republic was a standard feature of UDF gatherings in those days – and Wentzel declined. But when Moss asked Arthur to speak, and explained that there would be mention of a people’s republic, Arthur was unconcerned and agreed to talk.
I do not think that this at all disproves his friends’ perception of Arthur as fundamentally committed to human rights. But it does reflect two things, both of which will become important in later stages of Arthur’s life. The first is that while he was committed to rights, he was not committed only to classic rights of liberal political freedom; he was deeply sensitive, always, to the critical importance of inequality (of course a central concern of Marxism). And the second is that while he was not a Communist, he was also not anti-Communist. This, after all, should not be surprising; he admired no one more intensely than Bram Fischer, and Fischer was a committed Communist. Arthur was committed to rights, but he gave that commitment a more inclusive, a more left, meaning than traditional liberals might have.
Just as important, Arthur’s politics very likely did not remain fixed over time. Moss’s description does not focus on change but on understanding Arthur at a particular moment, but Arthur’s son Matthew emphasises his development over time. Arthur’s commitment to rights, in particular, did not disappear but it did get reshaped, as he came to see the balance of rights as more complicated than he had in his earlier years. Arthur’s colleague on the Constitutional Court from 1994 to 2005, Kate O’Regan, viewed Arthur as ‘a man of the left’.141 Matthew feels that Arthur evolved from a ‘fairly orthodox liberal’ to a ‘social democrat and then a socialist with a strong commitment to humanism’. And, though Matthew considered it ‘ludicrous to think that [Arthur] was a member of the Communist Party, it’s particularly ludicrous to think that he would have been a member of the Communist Party in the ’60s when his politics were much more mainstream liberal than they ended up’.142
*
July 1971 marked another step in Arthur’s progress at the Bar: he took silk. In other words, he became – shortly before his 40th birthday – a Senior Counsel, a recognition of his status as an experienced, capable and honourable member of the Bar, and with that recognition came the right to wear a silk robe to court. To become a Senior Counsel, Arthur had to apply; in other words, this was an honour that he had to seek. In addition, as a formal matter, designation as Senior Counsel was an honour conferred by the State President;143 it rested, therefore, on Arthur’s having a reputation among his colleagues at the Bar that even the National Party government had to acknowledge. It also created a potential personal problem for Arthur, because his close friend George Bizos, two years senior to Arthur at the Bar, had not yet taken silk. Evidently Arthur one day met with George, and after some period of ‘awkward small talk … suddenly blurted out that he was going to apply for silk’.144 But despite his discomfort at stepping forward before his friend, Arthur did so.
Meanwhile, Arthur continued his commercial practice.145 His fee ledgers for the years before 1978 unfortunately have not survived. A ledger does exist, however, for the period March 1978 to June 1994. For the year beginning in March 1978 and running through February 1979, the ledger reports fees of approximately R108,894.146 Taking into account inflation, the 2017 dollar value of these fees would be $469,416.77. There is no way to be certain whether Arthur’s income for this year was typical, but some reason to believe it might have been atypically low, because in 1978 Arthur was part of the legal team in the Pretoria Twelve trial – for which his ledger records only R7,500 in fees – and so might have had less time than usual for commercial clients.147
Arthur was earning the fees of elite members of the Bar. No doubt the work was also intrinsically interesting to someone who cared about the law as Arthur did; as his reputation rose, and as he became a silk, he would have received progressively more complicated briefs. Between 1964 and 1979, he appeared in at least 44 cases that resulted in reported judgments. It is clear that he was, as Sydney Kentridge would later say, a ‘very, very formidable opponent’.148 Based on a scan of these cases, Arthur appears to have been on the winning side in 33 or 34 of them – but that statistic understates his success, because it includes cases in which he was, as a junior lawyer, assisting a senior counsel, and in those eight cases he and his leader won only five. By himself, or as the leader for a more junior lawyer, Arthur won at least 28 of 36 cases. Between August 1969 and August 1977 he won all, or all but one, of the 21 cases he led or handled on his own. Two of his rare losses were in cases where Isie Maisels, by then a venerable master at the Bar, was on the other side.
These cases covered a broad swathe of private law. Ten or eleven of the 44 involved motor accidents or other insurance issues – and so reflect Arthur’s early expertise in this field. In fact, four of the first five reported judgments in this period fall in this category. But only one at most of the last twelve cases can be placed in this group. The reason is that Arthur broadened his fields of work dramatically. Over these years he would handle cases in contract law, corporate law, liquidation, insolvency and related matters, a range of administrative law cases, tax cases, white collar criminal defence, and others. He was a lawyer who knew the law so well, or could assimilate a new legal field so quickly, that he was sought out for cases in areas he had handled and in areas he had not.
In one 1968 case, S v. Visser, Arthur represented the government, the ‘State’. Since state prosecutions were handled in-house rather than by briefing of private counsel,149 this representation of the state was a nominal representation only, and the actual client was the municipality of Johannesburg – though in at least two other cases Arthur’s client was explicitly
