of the South African government. It is true, of course, that advocates under the ‘cab rank’ rule are obliged to accept any client if they have time and capacity to represent them. But it was not unheard of for advocates who wanted to avoid representing a particular client to find that their schedule did not permit them to take the client’s case. Evidently Arthur decided not to employ that kind of stratagem. Perhaps he would never have avoided a case, precisely as the cab-rank rule directs; or perhaps he decided he would demonstrate his fidelity to the rule, once, by taking this particular case. He may also have felt disposed to accept this brief because it came to him from a firm of attorneys, Moodie and Robertson, which briefed him repeatedly in this period.
In any event, he could not have picked a case in which the government’s position was more sympathetic. Visser had been convicted of ‘unlawfully smok[ing] in the auditorium’ of a movie theatre, and had been ‘cautioned and discharged’. The defendant faced no substantial consequences, in other words, while the legal issue was whether the City of Johannesburg had the authority, in the name of the ‘comfort and convenience of the public’, to prohibit smoking in theatres. Arthur prevailed.150
One other non-political case stood out in Arthur’s mind as an instance in which he had achieved justice. In Santam Insurance Co. Ltd v. Vorster, which Arthur argued in August 1973 and the Appellate Division decided the following month, Arthur persuaded the appeal court that his client, who had been a willing passenger in a clearly illegal auto race on a public road, nevertheless had not assumed the risk that the drivers in the race would drive so dangerously as to compound the danger that the race itself entailed. Arthur felt he had achieved justice in this case, in which apparently no one else thought he had a chance, and that he had done so by successfully convincing the court to accept a counter-intuitive limitation on his client’s legal consent to the risk of harm caused by the race. He was not without pride in his achievements.151
Another case was important to Arthur for a different reason. This was Oakland Nominees (Pty) Ltd v. Gelria Mining & Investment Co (Pty) Ltd, which Arthur argued over two days in September 1975 and the Appellate Division decided in November of that year. The case turned on the application of the English law principle of estoppel. Under this doctrine, as pressed by the distinguished advocate Rex Welsh QC for Oakland Nominees, an owner of stock shares that permitted its shares to be held by a nominee, a very common practice at the time, might be estopped from contesting the nominee’s theft and sale of the shares, because the nominee on paper had authority to enter into transactions involving the shares. Although Arthur knew, when taking on the case, that under English law the owner’s position was hopeless, he believed he could attract the attention of the Afrikaner nationalist judges on the bench, who were concerned about ‘purifying’ South African law from its English law influences, by appealing to a Roman-Dutch principle requiring proof of negligence. The court agreed and found no such proof in the case, and so decided in favour of Gelria, Arthur’s client. Here was an instance where the legal-political project of the judges coincided with the interests of his client. It gave Arthur much pleasure to use the tenets of a Roman-Dutch doctrine in his client’s favour.152
It’s worth noting that Arthur also handled three cases that led to reported judgments in Rhodesia (now Zimbabwe). All of these cases were heard in 1974 or later – after Rhodesia’s unilateral declaration of independence, an effort to preserve white rule over the country, in 1965. There is no reason to be surprised by Arthur’s decision to handle Rhodesian cases; he was, after all, engaged on a daily basis in handling cases in South Africa, a country no less unjust than Rhodesia. But it is still worth emphasising that Arthur did not undertake a one-man boycott of the Rhodesian courts. He was not one for vain gestures.
Arthur’s court cases (some of which very likely were not reported, since the South African Law Reports only sought to report decisions of legal interest) would not have been all of his practice. As his remaining fee ledger reflects, his practice also included ‘advice’ and ‘opinions’ and consultations (abbreviated as ‘Cons’ in his ledger). He also continued to write the article on insurance for the Annual Survey of South African Law up to its 1971 volume; Judge Dennis Davis, whose interests include insurance law, described these articles as ‘thoughtful’.153
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It is important to emphasise that Arthur was engaged in the active practice of elite commercial law. Why did he choose to do so much non-political work? The answer is not that he was politically indifferent; it’s clear that his experience in the Rivonia trial deepened the commitments he had already been forming even before that trial. Nor is the answer that there simply weren’t many cases to be done in these grim years; it is true that the government had largely (though temporarily) smashed the opposition in the years immediately following Rivonia, but that very fact indicated that there were significant numbers of prosecutions still being brought. Other lawyers such as George Bizos, Denis Kuny and David Soggot, all friends of Arthur’s, probably handled more of these cases. So if Arthur intended to pursue justice under apartheid through law, why did he not do so full-time?
Much of the answer may have been that his caseload was not under his control. There were undoubtedly more political cases to be done than Arthur in fact did, but advocates can only handle the cases that attorneys bring them. Attorneys may have felt that Arthur’s special skills – his relentless logic, his unremitting analysis and synthesis of complex facts – were needed most in large cases with multiple accused, such as the NUSAS and Pretoria Twelve cases. In smaller cases, on the other hand, what might have been most needed was the ability to cross-examine intuitively and fiercely, and while Arthur was a careful cross-examiner, he was not at his strongest in dealing with individual, non-expert witnesses. Meanwhile, attorneys would have brought Arthur complex commercial cases, and all the more so after he took silk in 1971.154
But these answers seem incomplete, perhaps most importantly because they imply that Arthur’s work was the product of forces beyond his control. It is quite true that he did not have complete control over the cases that came to him, but it is hard to imagine Arthur – who proposed himself to Bram Fischer as part of the Rivonia team – unable to obtain more political work if he had been determined to do so. If we instead assume that Arthur was, broadly speaking, engaged in the work he sought to do, then we can ask why he sought this particular mix of cases.
One answer might be that Arthur himself chose to handle only a limited set of cases – appeals rather than trials. This was what Arthur told Glenn Moss, one of his NUSAS clients, when Moss asked him why he had taken their case. Arthur might have arrived at this mode of practice out of an assessment of his own skills. Perhaps, however, more was involved: perhaps Arthur’s deep involvement with Bram Fischer and Nelson Mandela through the Rivonia trial had exhausted him emotionally. We have already considered this possibility, and Glenn Moss raised it, mentioning that Arthur seemed very conscious of Bram Fischer’s memory both inside and outside the courtroom during the NUSAS trial.155 But I haven’t encountered anyone who described Arthur as emotionally exhausted in these years, and in fact his answer to Moss, as Moss recalls it, wasn’t entirely accurate. He had taken part in two substantial political trials since Rivonia, the Theron defence and the first Winnie Mandela case. Arthur’s answer to Moss also didn’t explain why he had now undertaken the NUSAS case, which was itself a trial case rather than an appeal. Nor would it explain why he then proceeded to take on the ‘Pretoria Twelve’ trial shortly after the end of the NUSAS case.
A better answer, I think, is that during most of this period Arthur was following a path to prominence at the Bar that had been well marked out by others before him. Among these, Bram Fischer would have been perhaps the most powerful model, because he and Arthur became so close – and Fischer, Communist though he was, had the same sort of mixed practice as Arthur developed, in which he mixed political cases with holding retainers from major mining companies. Arthur wanted to seek justice, but he also wanted to make a name for himself. He was, as Dennis Davis perceptively told me, a ‘super-silk’, reaching to the heights of his profession at a relatively young
