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The Rivonia Trial Attorney Remembers

Lord Joel Joffe

September 2016

The Foreword to the first edition of Rusty’s book was written by the eminent author Anthony Sampson and ended:

‘It is the honesty and credibility of his narrative, without any posturing or self-advertisement, which makes it both a gripping story and a crucial historical document. He poignantly takes his title from Milan Kundera: “The struggle of man against power is the struggle of a memory against forgetting”. But his own memory is unusually reliable and important, in its insistence on truthfulness and uncomfortable facts. His story is not just the record of a heroic movement, told from the inside, important though that is: it is an account of a warm individual and his family, caught up in a challenge they could not ignore, who still retained an individual scepticism and humour as they looked back on the events which turned their lives upside down.’

I cannot match this masterful writing but am able to add to it as one of the lawyers who defended Rusty Bernstein, on trial for his life, accused of sabotage in the Rivonia Trial alongside Nelson Mandela, and eight other leaders of the liberation movement, as well as James Kantor, a non-political but brave and principled lawyer, framed by the police and discharged at the end of the state case because there was no credible evidence against him.

Rusty’s role in the liberation movement was mainly as its scribe – the articulator who put in writing the ideas and opinions of the other leaders and the movement – and also as a brilliant educator in political theory. It was Rusty who was tasked by the Working Committee of the South African Congress Alliance (comprising the African National Congress and its allies the Indian Congress, the Coloured People’s Congress and the white Congress of Democrats) to draft its vision of a new South Africa. The committee published a nationwide ‘Call’, crafted by Rusty, which crystalised its essence as ‘Let Us Speak of Freedom’, asking people everywhere to collaborate in setting the terms of the Freedom Charter. This provided the agenda for thousands of meetings up and down the country. After the responses were received Rusty drafted the Freedom Charter (the brainchild of Professor ZK Matthews, the ANC veteran), which was a statement of core principles characterised by its opening demand ‘The People Shall Govern’. It was officially adopted on 26 June 1955 at a Congress of the People in Kliptown and was subsequently incorporated by the ANC into its programme. In due course the Constitution of the free South Africa was largely based on it.

It is largely forgotten today that Rusty played such a key part in the compilation of the Freedom Charter, probably because he was a white communist.

In the seventh month of the Rivonia Trial Rusty took the stand in the witness box and was cross-examined by the sycophantic and histrionic state prosecutor, Dr Percy Yutar, who would stoop to anything to get a conviction. Rusty proved to be an ideal witness, one of the best I have come across in the course of my legal career, only equalled by Walter Sisulu in that trial. His answers were clear, concise and to the point. He was at all times extremely polite and unruffled, but would not concede anything which could implicate his co-accused. After a futile cross-examination in which Yutar could not establish any evidence linking Rusty with the charges, his cross-examination took a strange turn. Relying on a letter Rusty had written to his sister in Britain describing Yutar’s despicable conduct of the prosecution case, which letter was photocopied by the prison authorities and passed on to the police, Yutar thundered ‘Have you ever accused The State of coaching the witnesses. That is a reflection on the state prosecutor?’. Rusty’s calm reply was, ‘I am afraid so, sir’. Yutar was so unsettled by Rusty’s responses that to our astonishment he abruptly sat down without asking the key questions which could have caused Rusty a great deal of difficulty.

The end result was that Rusty was acquitted, but all the other accused were sentenced to life imprisonment. On acquittal, as he left the dock Rusty was immediately re-arrested and charged with the crime of being a member of the Communist Party, which he had always admitted. Granted bail, he, with his multi-talented and dynamic wife, Hilda, who was about to be arrested herself, managed a dangerous escape and came to England. Rusty ends the book on a high note as he and Hilda stand on the terrace of the Union Buildings, Pretoria, on the day of Nelson Mandela’s inauguration. He sees it as a triumph for ‘one of the longest and most testing journeys in history’.

In the twenty-two years since that day in 1994 South Africa has changed, but not in the ways anticipated by those who led the struggle to defeat apartheid. The optimism of the early years of hope has largely given way to a sense of hopelessness caused by the ANC government’s betrayal of its principles. Rusty was not unaware of the problems of power and was not afraid to criticise the many things within the ANC that concerned him. In an article that he wrote in 1991 called ‘Corridors to Corruption’, Rusty warned presciently of the dangers of corruption in the new South Africa. He wrote: ‘The subtle process by which the foretaste of power corrupts seems to be creeping up on us unnoticed. We ignore the warning signals at our peril.’

It is important that the struggle and sacrifices of many South Africans, both black and white, should not be squandered on the greed and corruption that has followed the liberation from apartheid. Rusty had always hoped that a new South Africa would be governed on the principles of democracy and freedom modelled on the conduct and integrity of Nelson Mandela, Walter Sisulu, Govan Mbeki and their followers. He would be delighted to have known that a new generation of young South Africans is now showing encouraging signs of commitment to this model and that hopefully they will build South Africa into the Rainbow Nation which Nelson Mandela and Archbishop Desmond Tutu envisaged, with justice for all.