Читать книгу And Justice For All - Stephen Ellmann - Страница 17
ОглавлениеThe Rivonia Accused Make their Case
Two crucial decisions had to be taken as the accused prepared to make their case: what their defence would be and how it would be communicated. To be sure, the defence had not been invisible, or inaudible, during the state’s presentation of its case.
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To understand the play of the evidence in the case, it is essential to look with care at who said what. The decisions made by the defence about what testimony to present grew in part out of a point-by-point analysis of the case against them, an analysis not designed to show the innocence of the accused – which could not be demonstrated – but to show that the decisions the accused had made when they undertook acts of sabotage were both decent and understandable. In addition, and perhaps more fundamentally, the defence choices emerged from the understanding the accused and their counsel had arrived at concerning the capacity of the accused to speak effectively for themselves against the state. The case became, in effect, an assertion of black political decency and personal self-respect, in the face of the arrogance of the state. The accused were right to see their defence in 1963 and 1964 as part of a challenge to white authority that might last a very long time; it did, and the decisions that went into their defence were important to the political struggle that would occupy so many years to come.
It had taken months since the trial began on 3 December 1963 for the state to lay out its evidence, months in which the prosecution presented many witnesses and several hundred documents, ‘many of them lengthy, involved, political treatises’.1 Arthur would undertake ‘the incredibly tortuous job of analysing all the documentary evidence’, a task that meant that all the documents ‘had to be considered in detail, analysed, interpreted and fitted into the right place in the overall story in a way which the prosecution had scarcely ever attempted to do, and when it had, had done wrongly’.2 Judge De Wet, in what Joffe considered ‘one of his most remarkable judgments’, had effectively encouraged Yutar to present even irrelevant testimony, on the ground that he was quite capable of sorting the relevant from the irrelevant and would address any relevancy objections at the end of the trial. Moreover, many of the state’s witnesses, some of them ‘accomplices’ but others with no real connection to the accused at all, had been held in 90-day solitary detention without trial. Joffe wrote about the effects:
The other accomplices [with a single exception, Bruno Mtolo] were all unwilling. They had all been held for long periods in solitary confinement. They had all made statements to the police which the police did not find satisfactory, and they had stuck to those statements despite months of browbeating and threats, until finally they agreed to amend their statements to satisfy the police and thus provide a possible route to their own freedom. The duress was naked and shameless. And in addition, most of those forced testimonies were to facts which, on the face of it, were not themselves credible.3
Between false evidence and true, by the end of its case the state had laid out proof that the ANC had been engaged in a military campaign of sabotage against the South African state, and that six of the accused, including the three prominent leaders Nelson Mandela, Walter Sisulu and Govan Mbeki, as well as Denis Goldberg, Andrew Mlangeni and Elias Motsoaledi, were demonstrably guilty. (On the other hand, the defence lawyers believed that the state had offered ‘virtually no evidence of complicity in the alleged conspiracy’ as to Rusty Bernstein, Raymond Mhlaba and Ahmed Kathrada.) And along the way, ‘by way of aggravation of sentence, the State had led much evidence of cases of murder, and of sabotage where murder could be said to have been attempted’.4
Moreover, the defence had implicitly tipped its hand, by not cross-examining on many points. As Joffe wrote, speaking of the earliest witnesses for the state:
Had he [Yutar] been a more astute student of psychology, and devoted more time to trying to understand the accused and less to the publicity angles of this case, he would have seen from our cross-examination of the farm servants, that we were not denying any of the story of what had been going on at Rivonia. We were not disputing that the accused had visited and some of them had lived there. We were not disputing that some had been there in disguise or under pseudonyms. We were not disputing that they had used the place both for duplicating documents and for operating a radio transmitter. We were not disputing that the place had been bought specifically for these purposes and that the accused were … at least in some control of the property and its administration.5
Other points had been conceded this way as the prosecution continued its work – for example, because of the self-imposed limits the defence adhered to in cross-examining an important state witness, Bruno Mtolo, a turncoat whose first statement as a witness was to affirm that he was indeed ‘a saboteur’. These limits – driven partly by the clients’ determination to tell the ANC’s story to the world through this trial, and partly by their equal determination not to incriminate any of their comrades in the process – in this case meant, among other things, ‘an implicit admission that [Mandela] had belonged to Umkhonto and had held a senior position in it, and that he had canvassed and obtained the aid of foreign countries to train military personnel for the struggle against the South African government’. None of this meant that the defence had simply given up; on the contrary, as Joffe makes it clear, their surgical cross-examiner, Vernon Berrangé, had fiercely pursued falsehoods where he could. Still, the task of the defence now, the life-or-death task, was to find a way to speak to the judge in spite of all this, and to convince him not to sentence them to death, a peril the defence viewed as ‘real and grave’.6
Bram Fischer set out the defence theory of the case in a statement to the court on 20 April 1964. He explained that the defence would, first, correct the record as to which of the accused were members of which organisations, Umkhonto we Sizwe and the African National Congress. In addition:
Second, my lord, in issue will be the allegation by the state that Umkhonto was a section of the African National Congress, to use the phrase so frequently used by the State, ‘the military wing’ of the African National Congress. The defence will seek to show that the leaders both of Umkhonto and of the African National Congress, for sound and valid reasons which will be explained to Your Lordship, endeavoured to keep these two organisations entirely distinct. They did not always succeed in this for reasons which will also be explained, but we will suggest that the object of keeping the two organisations separate was always kept in mind and every effort was made to achieve that object.
Thirdly, my lord, it will be put in issue that the African National Congress was a ‘tool’ of the Communist Party, and that the aims and objects of the African National Congress were the aims and objects of the Communist Party … The defence will deny this emphatically, my lord. It will show that the ANC is a broad national movement, embracing all classes of Africans within its ranks, and having the aim of achieving equal political rights for all South Africans … The evidence will show how Umkhonto we Sizwe was formed, and that it was formed in order to undertake sabotage only when it was considered that no other method remained for the achievement of political rights …
All this will be relevant particularly to the fourth point, and that is this – the fourth issue – that Umkhonto had adopted a military plan called Operation Mayibuye and intended to embark upon guerrilla warfare during 1963 or had decided to embark upon guerrilla warfare.
This point caught Justice De Wet’s interest, and he said, ‘Will that be denied?’ Fischer answered:
That will be denied. Here the evidence will show that while preparations for guerrilla warfare were being made from as early as 1962, no plan was ever adopted, and the evidence will show why it was hoped throughout that such a step could be avoided … and that they [the men in charge of MK and its operations] are to be believed when they say that Operation Mayibuye had not been adopted, and that they would not have adopted it while there was some chance, however remote, of having their objectives achieved by the combination of mass political struggle and sabotage.7
These points were deftly designed, and no doubt represented the fusion of the commitments of the accused and the strategic judgements of their counsel. Their net effect, if they were believed, would be to turn the accused from rampaging, self-interested murderers into sober, and honest, representatives of the African people. The accused would be seen as what in truth (as the world learned in the 1990s) they were: restrained, thoughtful, scrupulous advocates for those whose rights had been so long denied. Though the white judge could not be expected to make their cause his, he might come to see how their cause could be seen as just – and that might save their lives.
Fischer was a tremendously admired advocate, and his articulation of these positions itself carried weight. But the judge had to find some reason to save the clients, not their counsel. For a time the lawyers, while recognising that Bernstein, Mhlaba and Kathrada would need to testify to refute the particular charges against them, were inclined not to have the others testify. As Joffe recalled: ‘We argued that they [the clients] could say little that would prove that guerrilla warfare had not been decided upon or initiated – nothing that could not be as well or better deduced by counsel, from documents. Under cross-examination they might make statements or admissions which could damage the chances of argument on their behalf being believed.’8 Fortunately, they changed their minds.
It was George Bizos, whose strategic judgement – and whose feel for the personalities involved – became integral to the defence team’s decisions, who made the point that the better Judge De Wet knew the accused, the more difficulty he would have in sentencing them to death. To that end, Bizos argued for the accused to give extensive testimony to gain a better sense of their lived experience.9 In his memoirs Bizos adds that ‘the views I expressed at that crucial meeting’ – called by Joel Joffe and held ‘in the Fischers’ shady garden’ to avoid surveillance devices indoors – ‘were not mine alone. They were also the opinions of Walter Sisulu and Govan Mbeki and the other accused.’10
Bizos also had another crucial insight: he predicted that Yutar would be unable to resist the temptation to cross-examine the accused about politics. The courtroom is an arena set up to favour the cross-examiner, but not when the lawyer strays into fields he or she does not understand. Yutar, the defence had seen, had no political insight. Most of the defence lawyers believed that Yutar would stick with the facts that proved his indictment – but Bizos believed otherwise, and was right. Meanwhile, ‘whether the accused agreed with George or not, they insisted that they go into the witness box to nail what they regarded as slanders and distortions made against them by the prosecution’. The lawyers reluctantly accepted the clients’ decision.11
If the accused were to speak, the next question would be who would speak and how. Nelson Mandela was the natural first witness, but it soon became clear that Mandela would not be able to tell the story of the accused effectively in the question-and-answer format of direct examination.12 In addition, he faced a problem: in his 1962 trial for ‘inciting African workers to strike and leaving the country without valid travel documents’, he had taken the position that he did not recognise the legitimacy of the court, because it enforced laws in whose formation he had no voice at all. As he said to the magistrate before whom he was tried, he found himself a ‘black man in a white man’s court’. He had said then that ‘there comes a time, as it came in my life, when a man is denied the right to live a normal life, when he can only live the life of an outlaw because the government has so decreed to use the law to impose a state of outlawry upon him’. And he had observed, presciently, that ‘Other people will be driven in the same way in this country, by this very same force of police persecution and of administrative action by the government, to follow my course, of that I am certain’. If he were now to testify, it might imply that he accepted the legitimacy of the white state’s courts after all.13
And so it was concluded that Mandela would speak first, but not as a witness. Instead, he would make an unsworn statement from the dock. The defence lawyers were pleased to see that this tactic took Yutar completely by surprise. When he sprang to his feet to ask the court to warn Mandela that unsworn statements from the dock carry less weight than sworn testimony, Judge De Wet responded, ‘I think, Mr Yutar, that counsel for the defence have sufficient experience to be able to advise their clients without your assistance.’14
Mandela’s statement became famous. ‘Many a carefully folded printed copy of it,’ Bizos would write, ‘was found by the security police hidden between the pages of textbooks belonging to students arrested for taking part in the 1976 uprisings.’ And many accused in cases yet to come would tell their lawyers that their defence would be ‘the Nelson Mandela Defence’.15 Mandela spoke for more than four hours. He described his political evolution, from his early days in the ANC Youth League to his ultimate leadership of MK. He ‘laid particular emphasis on our resolve to cause no harm to human life’, by employing sabotage rather than more violent means. He ‘told the court of the dividing line between the ANC and MK, and how we made good-faith attempts to keep the two separate’ – one of the central points Bram had advanced on behalf of the accused. He denied ‘that the aims and objects of the ANC and the Communist Party were one and the same’, and emphasised that the ANC was seeking to rectify ‘the terrible disparities between black and white life in South Africa’ – another of Bram’s central points. He did not speak about Bram’s final point, the status of Operation Mayibuye, because he had already been in prison when that document was drafted. But he had one more thing to say:
I had been reading my speech, and at this point I placed my papers on the defence table, and turned to face the judge. The courtroom became extremely quiet. I did not take my eyes off Justice De Wet as I spoke from memory the final words.
During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.16
The defence lawyers had been very anxious about that final sentence, which they viewed as perhaps daring the judge to impose the death penalty. Bram had shown the draft to another senior lawyer, Harold Hanson, and Hanson’s response was that ‘If Mandela reads this in court they will take him out in back of the courthouse and string him up’.17 As Frankel writes: ‘Both Bram Fischer and Joel Joffe argued that such a statement could only antagonize the judge, who might be overly tempted to grant Mandela his wish. When they typed up his handwritten draft, they deleted the sentence. But Mandela would not budge. In the end, at his insistence, the lawyers had to put it back in.’18 The biographer Anthony Sampson says that Mandela conceded one point: he added the words ‘if needs be’.19
Denis Goldberg, another of the accused, felt the power of Mandela’s words in a special way:
His words were a clear challenge to the judge and apartheid South Africa, to hang him if they dared to. At that moment I realized he was also challenging them to hang all of us. I could feel only pride at sharing this wonderful moment. Being on trial for your life is not something you choose. You do not go to prison. You get taken! But what a moment in my life that was. I can truly say that we have looked death in the face and come through the experience as better, stronger people.20
It is worth pausing for a moment to ask one more question: who wrote Mandela’s speech? R.W. Johnson maintained that Bram Fischer wrote it, rather than Mandela.21 But Arthur himself refuted Johnson’s supposition:
The suggestion is completely unfounded. I was junior counsel in the defence team. One of my responsibilities was to gather research material that Mandela requested while preparing his speech. He spent many hours working on it, on occasion editing it in the light of the comments of his colleagues and lawyers, and right up to the day it was delivered, made changes to the wording. The architecture, tone and thrust of the speech were his and his alone. The demeaning suggestion that he may not have been the author is simply untrue.22
Of course, other members of the team, and even sympathisers outside the team, made suggestions, as Arthur’s letter reflects.23 It would be strange if what may be the most important speech made in South Africa – at least before Mandela’s release from prison – had been written without advice. Joel thinks that Arthur in particular may have contributed more than research assistance.24
But the speech was Mandela’s. Perhaps the clearest confirmation of this comes from a recollection of Denis Goldberg’s, not included in his book. Denis remembers that at one point Arthur said that he would have liked to write Nelson Mandela’s speech. As Denis understood this, Arthur was saying that he wished he had had the life that would have been the foundation for such a speech. Now, having gone through the trial with the accused, Arthur had become almost one of them, after initially being engaged more as a professional. Arthur’s words are a mark of how profoundly the trial had affected him, and a sign of the long-term impact this speech, and the trial as a whole, would have on him – but they also underline why it was Mandela, rather than Arthur, who was the author of the speech.
At the end of Mandela’s speech from the dock, Judge De Wet ‘looked at Bram and said – almost gently, Joffe recalls – “You may call your next witness.”’25 That witness was Walter Sisulu, whom the defence considered ‘the key defence witness. If his evidence was believed, the court must find in our favour that Umkhonto and the African National Congress were separate organisations with individual identities and that Operation Mayibuye had not been adopted by Umkhonto as a policy, although Umkhonto had always envisaged that it would have to prepare for guerrilla warfare at some date in the future.’26
These were two of the central points Fischer had presented in his opening statement, and the second – concerning Operation Mayibuye – was the only one that Mandela had been unable to address in his speech from the dock. The defence lawyers were uneasy. ‘It was not that we doubted his [Walter’s] staunchness, but some of us at least doubted his ability to cope with the formidable cross-examination which would be unleashed against him since Mandela had not been in the witness box.’27 Sisulu ‘had left school at Standard Six’ (Grade Eight). Yutar, who would cross-examine him, was a veteran prosecutor, and the first person in many years to be awarded a doctorate of laws by the University of Cape Town.28 But within the ANC no one’s judgement was valued more highly than Walter’s. Joffe recalls that the lawyers ‘put these doubts to the accused’ – a striking illustration of the candid communication that had evolved between lawyer and client in this case. Joffe continues: ‘They knew Walter better than we did. They had little doubt that, on this issue, he was perhaps the most expert of them all. He was the one who knew more than any of them of the inner workings of the African National Congress and of Umkhonto we Sizwe. On these issues they had no doubt whatsoever that he would more than prove a match for Dr Yutar.’29
They were right. Yutar could not resist the temptation to cross-examine Sisulu on political matters, and the result was that he lost his focus on those ‘matters in which the prosecutor was the expert – the detailed wording and meaning of documents, the precise places where they had been found, the significance of the documents to the overall conspiracy, and the implications which the prosecution was going to draw from the documentary evidence’. On a Friday afternoon, at the end of five days of cross-examination, Yutar announced that he would try to finish on Monday; the defence team were startled because they felt he had not yet dealt with the crux of the case – ‘the meeting at Rivonia on 11 July at which they had all been arrested’. But on Monday, Yutar announced that he planned to conclude even more quickly, and in fact ‘a few minor questions of no particular significance, and Yutar’s attempt to shake Sisulu was over and done with’. The defence ‘felt that Walter in the witness box had been a triumph’.30
Each of the remaining members of the accused testified (or, in the case of Elias Motsoaledi and Andrew Mlangeni, made unsworn statements from the dock, as Mandela had). Joffe felt that only one, Raymond Mhlaba, ‘made a rather unfortunate impression in the box’; ‘for some strange reason his sincerity, his honesty and his simplicity did not come across from the witness box’.31 Writing years later, Frankel felt that Yutar had also ‘managed to make [Ahmed Kathrada] appear argumentative and sarcastic on the witness stand’. That was important, because the evidence against Kathrada ‘was no stronger than that against Rusty [Bernstein]’.32
Bernstein, however, may have won his acquittal through his testimony. Joffe considered him ‘in many ways … an ideal witness, one of the best I have come across in the course of my legal career … He was at all times polite and unruffled, and yet he would not concede anything which he did not want to concede, no matter how he was bludgeoned by Dr Yutar.’33 Bernstein, an architect and a skilled writer who was the actual drafter of the Freedom Charter, was hardly an ideological soulmate of the judge. Much of the cross-examination, moreover, essentially consisted of Yutar’s asking Bernstein to describe his radical convictions. Yet in the course of Bernstein’s testimony, Judge De Wet seemed to develop a surprising affinity with this Communist witness before him. At one point Yutar asked Bernstein if he was still a member of the illegal Communist Party, and Bernstein chose not to answer. The judge then informed him that he could be sentenced to eight days’ imprisonment for contempt (and this process could be repeated).
At that moment the thought must have crossed Justice De Wet’s mind that Bernstein had already been in prison for over nine months. A smile crossed his face, as he added: ‘I don’t [suppose] that will make much difference to you under present circumstances.’
Bernstein replied: ‘No, sir. I am afraid not.’ And that was where the matter ended.34
Meanwhile, Yutar once again ‘lost sight of his case’ and at the end of his cross-examination ‘none of the evidence against Bernstein had been so much as mentioned’.35
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There is one more element to this story, however. Joel Joffe writes that ‘whatever else happened, it was essential that our witnesses should be believed’.36 But it did not follow that it was crucial for the accused to tell the truth in every detail. If they could lie and get away with it, then their credibility and their cause would not be harmed – and the scope of their proven guilt might be reduced. If this seems shocking to readers in the twenty-first century, it should not. The accused were a noble group of men, who paid dearly for their principles. Moreover, as a group they did not shrink from taking responsibility for the ANC’s campaign of sabotage; instead, they used the trial to tell South Africa why their acts were justified. They admitted a great deal. But they were not playing cricket. They were, and very consciously were, revolutionaries. Revolutionaries violate many laws; if the cause requires violating the law against perjury, they may well feel that is not too great a price to pay. In fact, of the nine ANC accused, it appears that at least six, and possibly all nine, gave false testimony. (Not all of this false testimony was perjury, since three of the accused made unsworn statements from the dock, but even unsworn statements can be false.)
Given the impact of his testimony, it seems appropriate to begin with Rusty Bernstein. Here is Glenn Frankel’s account of the moments where Bernstein departed from the truth:
On three … matters, Rusty was not truthful. He flatly denied knowing that Rivonia was being used for work in connection with Umkhonto. ‘No, sir, I never knew until I heard the evidence in this case.’
Nor, he said, did he participate at any stage in the sabotage campaign. ‘My lord, I never had anything to do, either directly or indirectly, with acts of sabotage.’
Finally, he told the court he had never heard of Operation Mayibuye before his arrest. ‘I did not know of the existence of such a document,’ he said. Which was, of course, a lie.37
Frankel tells the true story of Bernstein’s involvement in Rivonia’s Children, but Bernstein himself made the relevant facts clear in his memoir, Memory against Forgetting. Bernstein had in fact himself participated in an Umkhonto bombing. Though he was not a member of Umkhonto himself, he ‘was meeting Mandela and other members of the High Command constantly at Rivonia and elsewhere, and we discussed things together freely. I probably knew as much as anyone outside the High Command of what it was doing and planning, and from time to time lent a hand in some small way.’ Bernstein himself was a member of the Communist Party Central Committee, and was deeply involved in the debate over Operation Mayibuye, which he strongly opposed. And he was at Rivonia on the day of the arrests precisely because it had been decided – over his objection – that Lilliesleaf farm would be the site of one last meeting to discuss Operation Mayibuye.38
No less a source than Nelson Mandela attests to perjury by a second of the accused, Raymond Mhlaba. Mandela writes in his autobiography: ‘Raymond Mhlaba was one of the leading ANC and MK figures in the eastern Cape, but because the state did not have much evidence against him, he denied he was a member of MK and that he knew anything about sabotage.’39
Mandela also discusses the two other accused (besides himself) who gave unsworn statements from the dock. This discussion appears in the unpublished version of his autobiography, which is quite different from the published book. In the unpublished version, Mandela gives a brief biography of Elias Motsoaledi, accused number 9, pointing out that despite his difficult health, he successfully endured being beaten up and tortured while in 90-day detention. Mandela also mentions that all of the accused prepared biographical sketches which Nadine Gordimer reviewed for them, and notes that ‘in spite of his humble educational background’, Gordimer considered Motsoaledi’s writing the best among them all.40 As to what he said in court, Mandela writes in terms that imply that Motsoaledi had deliberately left out critical facts (which, in the context of an unsworn statement from the dock, might fairly be described as a form of falsity):
In his unsworn statement to the court he [Motsoaledi] admitted he was a member of MK, that he served on the Technical Committee of the Johannesburg region of that organisation, that he knew about the acts of sabotage committed by the MK units and assisted in accommodating recruits in transit. In fact he was a full time employee of MK and a key figure in its activities in the Transvaal. Almost every recruit who left the country passed through his hands and he also gave instructions on sabotage operations.41
Mandela’s comments about Andrew Mlangeni, who also gave an unsworn statement, are somewhat more ambiguous. After mentioning that Mlangeni worked closely in MK with Motsoaledi and others, and accompanied Raymond Mhlaba for military training in China, Mandela writes:
He [Mlangeni] also made an unsworn statement in which he admitted that he carried messages and instructions for MK, assisted Bruno Mtolo, a State witness, to contact Joe Modise, another key figure in the Transvaal Regional Command and that he disguised himself as a priest to facilitate his travels. But he denied that he made arrangements for the transport of trainees.42
Mlangeni’s statement very likely was incomplete – I have not found a copy of the full text, but he did say in it that he was not testifying because ‘I do not want to be cross-examined about people I have worked with and places I have visited in case I might give these people away’.43 Incomplete is not the same as false, though, and Mandela seems not to come as close to saying that Mlangeni deliberately omitted important facts as he did in his summary of Motsoaledi’s statement. Mandela does report, however, that Mlangeni denied arranging for the transport of trainees, an activity he would seemingly have been likely to take part in as someone working closely with Motsoaledi, since ‘almost every recruit who left the country passed through [Motsoaledi’s] hands’. It is worth adding that a state witness named English Mashiloane had testified that Motsoaledi and Mlangeni ‘supervised these operations’ involving recruits, and while Joffe makes it clear that much of this witness’s testimony was false, he doesn’t suggest that this point was.44
Ahmed Kathrada discusses his testimony in his own Memoirs. After explaining that ‘Advocate Ismail Mahomed, a friend since the early 1950s and someone I trusted without reservation, had been asked by our defence team to help me prepare my evidence’, he writes:
Within the parameters of our defence strategy, I had to grapple with the question: Exactly how much do I disclose to him [Mahomed]? Knowing what scant evidence the state had against me, the omission of certain incriminating information could be not only personally advantageous, but crucial to the outcome of my case. My colleagues knew my position vis-à-vis MK and agreed that I should abide by the group strategy, namely not to volunteer any information that the state did not already have. But I still had to decide whether this non-disclosure should extend to my own advocate or not. Was this an ethical or a political problem, or both? And which consideration should take precedence?45
Though Kathrada affirms in his Memoirs that he in fact was not a member of MK – so that his denial of membership was truthful – he also confirms that ‘I cannot claim that everything I said in my evidence was true’.46
Denis Goldberg, like Kathrada, worried about this issue, but he too decided not to tell the truth in certain respects. The defence team had been anxious that as a witness Goldberg might do himself more harm than good. They feared that Yutar was especially intent on impugning him, in part because Goldberg – like Yutar – was Jewish. They also feared that Goldberg’s ‘tendency to wise-crack’ meant ‘that in the witness box he could well annoy the judge [and] bring down some heavy retribution on his own head’.47
We put all these fears to Denis, but he was quite adamant. If he was going to be hanged he wanted to have his say first. He made only one proviso – that there should be no danger that his testimony might affect the others adversely. We felt, after thinking about it carefully, that in fact there was no such danger, and … we called him to the witness stand.
As it turned out, in Joffe’s eyes Goldberg was ‘an outstanding witness, articulate and clear’.48
The case against Goldberg was that he had been investigating the technical and logistical requirements for producing munitions for the ANC. Joffe commented:
as it was not a legitimate enterprise, he left behind him a trail so wide, so fully documented, so completely covered in every detail by both his own and other people’s written records, including his own pocket book found on him at the time of his arrest that I must say that in my view his skill as an engineer was not matched by his ability as a conspirator. The evidence was overwhelming, and we had a great deal of difficulty in deciding whether Denis should give evidence or not.49
But Goldberg explains in his memoir that he had a possible defence, based on a case George Bizos had found – a case involving Nazi supporters in World War II – which established that ‘preparation was not an offence or not a serious offence, unless a decision had been taken to go ahead with an armed uprising’.
My task, I said in evidence, was to investigate as an engineer the possibilities of producing our own weapons ‘if they should be needed’. A decision to go ahead would be influenced by whether we could produce the arms we needed. Therefore my activity was merely that of a technical adviser to responsible political leaders who needed facts on which to base their decisions. That was my role and I did not feel it necessary to inform the court that the Logistics Committee of our High Command had decided that, even if Operation Mayibuye was not adopted, weapons would be required for ongoing sabotage, and we would make them. I also did not feel it necessary to inform the court that I was a member of the MK Western Cape Regional Command. Nor did I feel it necessary to admit that the camp at Mamre in December 1962 [a focus of the prosecution’s attention] was indeed the first MK training camp inside South Africa. They inferred the nature of the camp but I would not concede the point. They could not prove these things and I did not think the judge needed me to confirm their inferences. My conscience has troubled me ever since. But only a little.50
Many years after the trial, in a speech at the opening of Lilliesleaf Museum in 2008, Goldberg repeated the list of points he had not admitted at trial, and said: ‘I have to apologise to our lawyers who are here tonight, Arthur Chaskalson, George Bizos and Joel Joffe, that I kept this information from them. It might have troubled them to know these facts!’51
Two other members of the group, Walter Sisulu and Nelson Mandela, both denied that they were, or had been, members of the Communist Party.52 (Mandela’s denial came in his statement from the dock, and so was not under oath.) It now appears to be settled that Walter Sisulu was in fact a secret member of the Communist Party; his membership is affirmed in his biography, written by his daughter-in-law Elinor.53
As to Nelson Mandela, the question whether he was ever a Communist was controversial during his lifetime and perhaps still is. George Bizos, who knew Mandela well, is convinced that he was not a Communist and believes Mandela would not have lied to him about this. He also emphasises that Mandela had a lot of respect for Albert Luthuli, the ANC President from 1952 to 1967, a Nobel Peace Prize laureate and a devout Christian, and for other ANC leaders. To have joined the Communist Party, Bizos believes, would have been an insult to these leaders. It would also have been inconsistent with Mandela’s pride in his Xhosa background and the history of his ancestors.54
On the other hand, the evidence that Mandela was a Communist, probably just for a brief period of time, is quite substantial. It is clear that Mandela was capable of disagreeing with people he respected, such as Luthuli – he was, in particular, more ready to adopt violent tactics than Luthuli55 – and so the ties formed in Mandela’s earlier life can’t be assumed to have put Communist Party membership absolutely off limits for him. Both the ANC and the South African Communist Party (SACP), in statements after Mandela’s death, affirmed that he had been a Communist and a member of the Party’s Central Committee. The historian Stephen Ellis points to a range of evidence of Mandela’s ‘brief’ membership, including the statements of eight ‘prominent members of the SACP’, as well as denials of membership by Mandela that seem deliberately elusive, including his assertion in 1966 that he was not a member of the ‘CPSA’, the earlier incarnation of the Communist Party that dissolved itself in 1950.56 The commentator James Myburgh has pointed out, in addition, that the accounts Mandela and Sisulu gave of their political affiliation ‘both laid emphasis on the attainment of political rights for black Africans (and underplayed any socialist objectives); and both said they would try and borrow the “best of both” from the political systems of East and West.’57 This similarity, as Myburgh indicates, suggests that Mandela and Sisulu were acting together, and that in turn suggests that the picture both painted was drawn precisely so as to further the aims of these two brave political leaders. This is not the place to try to resolve this complex debate, but in the end it is only tangential to the question of whether Mandela was committed to telling the truth in this trial, for, as we will see shortly, he himself made it clear that truth was not the touchstone of his and his colleagues’ defence.
In short, the revolutionaries who were before the court in the Rivonia trial acted as revolutionaries do – they did not feel bound by the laws of the unjust state that they confronted, and in certain respects they chose not to be bound by the laws of perjury in particular. Whether the points they obscured or denied made a difference to their ultimate sentence cannot be known. Whether these false statements made a difference to their being found guilty or innocent can be known – all of them except Bernstein were convicted.
As to whether their lawyers knew that their clients were committing perjury, there are very good reasons to believe that, except for Bram Fischer, they did not know. Two of the accused specifically state that they did not tell their lawyers. Joel Joffe, in his detailed account of the case, makes it clear that the lawyers were uneasy at times about whether their clients were telling them the truth (a condition in which lawyers often find themselves), and also that their response to this anxiety was to investigate as fully as possible. Joffe’s account confirms as well that the accused held meetings to which the lawyers were not party, and then communicated the results – their collective decisions – to their lawyers.
Bram Fischer is a different matter. Fischer was himself a member of the Communist Party Central Committee; in fact, while Rivonia was being used by the ANC as its safe house, he was ‘acting chairman of the central committee’.58 He was himself part of the debate over whether or not to implement Operation Mayibuye. He undoubtedly knew, from his own recollection, that Rusty Bernstein was fully familiar with the Operation Mayibuye document, and he may similarly have known when the other witnesses were testifying falsely. He may even have communicated advice to his political comrades about what to say in some clandestine or implicit manner.
But it seems very unlikely that Fischer told the others. They did not know of the extent of his own involvement and he could hardly have addressed details about the testimony of the accused without involving himself in a much more personal act of self-disclosure. Joffe’s book indicates more than once that the lawyers as a team were uneasy about whether they were being told the complete truth by their clients, and that they responded to that anxiety by investigating the facts on their own.59 It was, in the end, not in the interest of the accused, or of Fischer, to inform Arthur or his colleagues about the points where the accused testified falsely. In all the occasions we have reviewed so far, it seems likely that those who had decided to depart from the law simply did so, taking their own counsel as they did.
*
But one aspect of the testimony poses more intricate problems. This is the testimony of Govan Mbeki, on the question of whether Operation Mayibuye had been adopted as a plan of action, or was instead merely a discussion document. This was a key element in the defence that the accused and their lawyers mounted. Operation Mayibuye, if taken seriously, would have chilled whites who read it, including the white judge. It declared, in part:
The following plan envisages a process which will place in the field, at a date fixed now, simultaneously in pre-selected areas armed and trained guerella [sic] bands who will find ready to join them local guerella bands with arms and equipment at their disposal. It will further coincide with a massive propaganda campaign both inside and outside South Africa and a general call for unprecedented mass struggle throughout the land, both violent and non-violent …
We are convinced that this plan is capable of fulfilment … The time for small thinking is over because history leaves us no choice.60
Joel Joffe wrote that whether Operation Mayibuye had been adopted was ‘the crux’ of the question of what sentence the accused would receive, and that if the judge found it had been adopted, ‘then the picture was very black indeed’.61
Nelson Mandela briefly discusses Mbeki’s testimony in his published autobiography, mainly to make the point that Mbeki admitted a great deal:
The prosecutor asked Govan why, if he admitted many of the actions in the four counts against him, he did not simply plead guilty to the four counts? ‘First,’ Govan said, ‘I felt I should come and explain under oath some of the reasons that led me to join these organisations. There was a sense of moral duty attached to it. Secondly, for the simple reason that to plead guilty would to my mind indicate a sense of moral guilt. I do not accept there is moral guilt attached to my answers.’62
Mandela makes no mention in this volume of Mbeki’s testimony, or his views, on Operation Mayibuye. But in his unpublished autobiography, he has much more to say on this subject. Here Mandela writes: ‘Govan Mbeki, a member of the High Command … when he was banned in 1962 argued that the document had been approved not only by the High Command but also by the ANC. He insisted that it now formed the basis for all the activities of MK and felt that it would be wrong to argue that it was still under consideration when we were arrested.’63 Later Mandela noted that Mbeki and Joe Slovo had drafted Operation Mayibuye.64
In contrast, Walter Sisulu ‘admitted that the document was drawn up by the High Command [of MK] and approved in principle by the Working Committee of the ANC but he challenged the statement that it had the approval of the ANC’. All of the other accused agreed with Sisulu. Mandela (who had been in prison at the time of these events, and so could not attest to the facts either way) emphasises in the unpublished autobiography that ‘to claim that the document had been formally adopted by the ANC simply because it was approved in principle by the Working Committee at the time of only 4 persons – Walter Sisulu, Govan Mbeki, J.B. Marks and Dan Tloome – was contrary to the whole procedure we had adopted even as an illegal organisation’. The upshot, according to Mandela’s account here, was that ‘Accordingly we decided to contest the State allegation that the document was a blueprint of our plans and Walter Sisulu and all the other accused were now to put forward this line’.65
It appears that Mbeki did just that. According to Frankel, Mbeki was a co-author of the plan, which ‘used some of the data and concepts Arthur Goldreich had gathered during his secret trips to the East Bloc’.66 Several other sources confirm Mbeki’s support for the plan, though not his authorship. Rusty Bernstein, who was directly involved in the debates over the document, makes it clear that Mbeki was a wholehearted proponent of Operation Mayibuye.67 Anthony Sampson, Mandela’s authorised biographer, describes Mbeki as one of its three ‘main proponents in the MK high command’.68 Bob Hepple, who after his arrest was freed by the state with the expectation that he would testify against the others – but fled the country instead – was new to these meetings, having joined the secretariat of the Communist Party Central Committee in April, 1963, just three months before the Rivonia arrests. But he attended one meeting a week before the Rivonia arrests, at which he reports that Mbeki was an ‘enthusiastic’ supporter of the plan.69 Similarly, Denis Goldberg writes that Mbeki, Mhlaba and Wilton Mkwayi had all ‘insisted’ that Operation Mayibuye ‘had been agreed upon’.70
Mbeki, however, acknowledged neither authorship nor support for Operation Mayibuye in court. In his testimony he appeared to attribute authorship to Arthur Goldreich – one of the men who had escaped from prison and fled the country. Asked whether this document had become the basis for action, Mbeki repeatedly explained that it had not, and indeed could not have, attained this status. He declared:
My attitude was in the first place that I hardly knew about the subject of guerrilla warfare, but I felt that since we had plans for mass action underway, rather than think of bringing forward new plans, new ideas which would divert the attention of the movement, we should suspend even the discussion of this Plan which Mr Goldreich was bringing forward until this campaign … until we are through with the campaign.71
Mbeki elaborated on a history of deliberations that clearly does not fit with Mandela’s description of Mbeki’s actual view. Mandela’s biographer writes that Mbeki ‘was undeniably at the heart of the conspiracy, but did not defend Operation Mayibuye in court, and gave nothing away that was not already in evidence’.72 He agreed with a question put to him by Fischer, ‘that what was clearly understood [as of May 1963] was that no recommendation could possibly be put before the National Liberation movement until some plans had been concretely presented and decided upon’. To that end, a logistics committee was established, with Goldreich chairing it, to investigate the feasibility of Operation Mayibuye, including costs and time required. At the beginning of July 1963, Goldreich presented a report at a meeting of the High Command of MK, but ‘the National High Command said that the report was very inaccurate, and that the National High Command could not go only by that report to arrive at a decision on Operation Mayibuye’. Goldreich’s revised report was to have been discussed on 11 July, the day of the Rivonia arrests. Mbeki concurred with Fischer that the plan ‘was never reported upon in any detail, and it was in fact never presented even to the [ANC National] Secretariat’. And, putting the matter more generally, Mbeki declared, ‘I don’t think at the time there would have been any justification for the leadership of the African National Congress to change over to guerrilla warfare.’ Goldreich, Mbeki said, ‘did not convince. It is incorrect to say so, that he convinced either M.K. or the A.N.C.’73
Walter Sisulu backed up Mbeki’s version in his testimony. He emphasised that there was a division of views among those who evaluated Operation Mayibuye; underlined the long lead time required for a change of policy such as this; repeatedly pointed to the lack of sufficient detail from Operation Mayibuye’s advocates to support a decision to go forward; gave no indication that Mbeki might have been a drafter of the report; and testified:
Mr. Mbeki argued that he could not, he was a new man, he could not make up his mind one way or another [about Operation Mayibuye], but he, however, felt that a plan of this nature must be laid with our political activities, and that it should not cloud the issue which the African National Congress considered to be the main issue in 1963, namely the anti-pass campaign, and the strike which was being contemplated.74
Raymond Mhlaba also confirmed Mbeki’s account, testifying that Mbeki ‘was not in favour of it [Operation Mayibuye]. He found certain difficulties confronting the implementation of the introduction of guerrilla warfare in the country.’75
All of this is in stark contrast with Rusty Bernstein’s statement of the approach the accused took to the trial: ‘We decide that we will not say anything about anyone still in the country. We will name no names. We will set out as clearly as we can the strategy and aims of the movement. We will make no denial of any true facts, and no apologies.’76 But it is in accord with the rather different account of the approach of the accused that Mandela gives, not in his published autobiography, but in the unpublished version:
We defended ourselves on the basis of what the enemy knew, on what was unknown to the enemy and on the basis of the political situation in the country as we assessed it. We readily admitted what was known by the enemy to be true but we refused to give away any information we considered dangerous to our case or that might implicate others.77
What Mandela says here is that the accused were prepared to conceal damaging information if the state – ‘the enemy’ – did not already possess it. The state knew a lot about Operation Mayibuye, but it had no testimony from inside these high-level meetings, and so the accused took advantage of this gap in the case against them, putting forward the line that they considered most helpful to their cause. (How they coordinated their testimony isn’t clear, since they knew they were under surveillance. Denis Goldberg thinks that they must simply have pursued a shared sense of self-preservation,78 but it is possible that Goldberg had less opportunity to consult his comrades than did the African members of the accused – who were, naturally, separately confined by race.)
All of this placed the lawyers for the accused, or at least Fischer personally, in a particularly acute ethical dilemma. If anything, the issues they confronted here were more acute than those involving the establishment of the defence team. Did the lawyers know that Mbeki was lying? Surely Fischer did; he was himself a part of the debates over Operation Mayibuye and would in all likelihood have been in more than one meeting in which Mbeki expressed his views. He himself was sharply opposed to the plan and firmly believed that it had not been adopted as a basis for action.79 As to the others, it is more difficult to say. Joel Joffe writes, without elaboration, that ‘the accused, in their brief to us, told us that Operation Mayibuye was not adopted but was under discussion’, and goes on to repeat Walter Sisulu’s testimony ‘that, at the time of arrest, no decision had been taken’.80 George Bizos specifies the uncertainty somewhat further, but comes to the same ultimate conclusion as Joffe. He writes that ‘Govan Mbeki, who was privy to the discussion in MK, was unclear about its ratification within the liberation movement … Consequently, our clients believed that the plan had not been adopted and our defence was conducted on that basis.’81
But Stephen Clingman, Fischer’s biographer, gives a different account:
In this the tactical strength of George Bizos came to the fore. He argued that it was imperative to give the judge a reason not to impose death sentences, and that the way to do it was to prove that ‘Operation Mayibuye’ had been discussed but never adopted. Given the dispute on the matter [among the accused] there were at least grounds for such a contention, and Bram decided to make it the centre point of the defence.82
Can this account be squared with Joffe’s recollection that the accused instructed their counsel to adopt this strategy? Yes, and quite straightforwardly. It is certainly plausible to conclude that this issue was not decided by either the accused or their counsel unilaterally. Rather, they made the judgement through a consultative process. That consultative process could have featured advice given by Bram Fischer – who did know what was going on – followed by a separate meeting among the accused that generated a response in the form of a direction to their counsel. This instruction in turn would not have contradicted anything that the other lawyers knew; they had discussed the situation with their clients and now their clients informed them of the stance they wished to take. Whether Mbeki’s decision to testify as he did reflected that he had been convinced by the others that in fact Operation Mayibuye had not been fully adopted, or whether he simply chose to ‘put forward this line’ – Mandela’s telling phrase – in accord with the others, might have remained obscure. Lawyers frequently wonder if their clients are telling the truth, but doubt is not the same as conviction, and there is no ethical bar to presenting testimony that the lawyer merely doubts.
But suppose the contrary were true – that the lawyers were fully aware that the clients had decided collectively to put forward this line despite its falsity. That would certainly take the lawyers outside the bounds of conventional legal ethics. But it would not take them out of the realm of ethics and honour. On the contrary, it would reflect a belief that in the circumstances of this case, the imperative to save their clients from hanging for unjust reasons justified departing from normal legal ethics. What Arthur might have thought about this ethical assessment will be a subject of Chapter Eight.
*
At last the long trial was over. Both sides prepared their closing arguments – but Judge De Wet soon made it clear that he had already decided several crucial issues. As Percy Yutar reached new heights, or depths, of rhetoric – asserting, repeatedly and without evidence, that the accused had set the date for the start of guerrilla warfare, and that this was 26 May 1963, though the accused were not arrested until six weeks later and clearly had not begun guerrilla warfare by the time of their arrests – the judge interrupted: ‘Dr Yutar,’ he said, ‘you do concede that you failed to prove guerrilla warfare was ever decided upon, do you not?’ A quick dialogue between the prosecutor and the judge ended with Yutar seeming to yield the point (‘As Your Lordship pleases’) but then continuing on nonetheless.83
The defence found the prosecutor’s argument so contentless – ‘there had not been an argument, only a summary and a lot of rhetoric’ – that ‘we decided we would not deal with Yutar’s argument at all, nor would we follow a similar rhetorical approach. We would argue the case on the issues which had been formulated right at the beginning in Bram Fischer’s opening address.’84 It would soon become clear that counsel for the accused had won the debates over legal technicalities – important legal technicalities, involving exactly what the accused had done. The admissions by the accused meant that they could not make out a case for acquittal, but it had been apparent since early in the trial that the case was fundamentally not about guilt or innocence but rather about sentences of life or death. The precision of the lawyers for the accused was not likely the basis on which the judge would ultimately make his sentencing decisions, but it did provide the judge with a legal basis on which to ground his sentiments about sentence – if he had any.
Arthur was first up. That Bram Fischer had asked him to argue reflects the confidence that Bram and his other colleagues had in Arthur. His job, as Joffe explains, ‘was to analyse the evidence, all given by police officers, about the 193 acts of sabotage alleged’. George Bizos writes:
His manner was the very antithesis of Yutar’s. Arthur’s height, his demeanour, use of language and logical analysis made him a formidable presence. Vernon [Berrangé] and I would not have resisted the temptation to launch an attack on Yutar for his misrepresentation of the evidence and for gratuitously insulting our clients. Arthur for all practical purposes ignored him.85
‘In his serious, clear, unemotional way’, as Joffe characterises his argument, Arthur acknowledged that ‘Umkhonto members committed acts of sabotage’, but denied ‘that they committed all the acts of sabotage with which they are charged’. Again the judge intervened, but this time to accept Arthur’s argument: ‘Mr Chaskalson,’ he said, ‘there is no need to pursue your argument on this aspect. I accept that there were other organisations committing sabotage at the same time, and choosing the same targets.’ This was very important – in Joffe’s words, ‘in one stroke, a substantial part of the State case fell away’ – because the defence needed to show that the accused had adhered to their policy of choosing targets whose destruction would not endanger human life. Arthur went on to argue that the accused, having adhered to this policy, could not be held responsible for any acts of sabotage, even if committed by members of Umkhonto, that violated this policy. And then he analysed each of the 193 acts of sabotage. ‘By the time it was finished it seemed that, of the 193 acts of sabotage which the State had proved to have happened, only about a dozen had been proved legally against Umkhonto we Sizwe and its High Command. Of these dozen acts, not one involved any danger whatsoever to human life.’86 Arthur deserved his colleagues’ confidence.
Then Bram took over – but not for long. Again Judge De Wet quickly cut in, and again his interventions, though surprising, were welcomed by the defence. Bram began to argue a fundamental point for the accused, that Operation Mayibuye had not been adopted as a plan for action, but De Wet interrupted: ‘I thought I made my attitude clear. I accept no decision or date was fixed upon for guerrilla warfare.’ To the accused and their lawyers, this ‘was the hairline around which the prospect of a death sentence revolved’.87
Bram passed to his second point, that the ANC and Umkhonto we Sizwe were two separate organisations. This point was important, as Joffe explains, ‘for the future of every member of the African National Congress who might ever be charged by the police’ – because if the two organisations were one, then every ANC member was by definition guilty of participation in MK’s campaign of sabotage.88
For the defence, all that was left was argument by Berrangé on behalf of the three accused who seemed to have some chance of acquittal, Bernstein, Kathrada and Mhlaba, and then ‘a few legal arguments by Arthur, Bram and George’. Yutar, in rebuttal, committed further excesses – announcing, contrary to his earlier statement in court, that he ‘now proposed to rely upon certain proclamations’ by the government, which declared the ANC and MK to be one and the same, and ‘retrospective to the beginning of the period covered by the indictment in our case’. But ‘by this stage, it seemed that Mr Justice De Wet had finally had enough. He almost browbeat Yutar into a retreat, and Yutar announced that in view of De Wet’s attitude, he was now “abandoning presumption!”’89
Court was adjourned for three tense weeks while De Wet considered his verdict. Bizos writes: ‘We anticipated that after so lengthy a trial, judgment would take the better part of a day. Judge De Wet dispensed with it in two minutes.’90 De Wet spoke so quietly that many in the courtroom could not hear him, and so briefly that ‘it was all over before most of the people in the court even knew what had happened’.91 He said, in toto:
I have very good reasons for the conclusions to which I have come. I don’t propose to read these reasons. The verdict will be: Nelson Mandela is found guilty on all four counts; Walter Sisulu is found guilty on all four counts; Denis Goldberg is found guilty on all four counts; Govan Mbeki is found guilty on all four counts; Ahmed Kathrada is found guilty on count two and not guilty on counts one, three and four. Lionel Bernstein is found not guilty. He will be discharged. Raymond Mhlaba is found guilty on all four counts; Andrew Mlangeni is found guilty on all four counts; Elias Motsoaledi is found guilty on all four counts. I do not propose to deal with the question of sentence today. My reasons will be made available in a statement. The defence will be given an opportunity to study these reasons and if so required, to address me on the question of sentence. I will deal with the question of sentence tomorrow morning at 10 o’clock.
Now, and abruptly, the case turned to sentencing. Between verdict and sentencing the defence team met with the accused, who remained as adamant in their political approach to the trial as ever. Their intention to press the case on behalf of African politics and humanity remained, and they had made clear that ‘they were not prepared to have any apologies made on their behalf for what they had done, or any suggestion that they would behave themselves better in future’.92 They continued to expect the death penalty, as they had from the beginning. Nelson Mandela, though he had spent part of the three-week adjournment taking exams for his LLB at London University – exams he passed – recalled:
I was prepared for the death penalty. To be truly prepared for something, one must actually expect it. One cannot be prepared for something while secretly believing it will not happen. We were all prepared, not because we were brave but because we were realistic. I thought of the line from Shakespeare: ‘Be absolute for death; for either death or life shall be the sweeter.’93
Meeting with their lawyers, the accused wanted to know what the procedure would be if the judge sentenced them to death, and the lawyers explained that the judge would ask Mandela, as the first accused, ‘“Have you any reason to advance why the death sentence should not be passed?” Nelson decided that he would have a lot to say’, on the lines that ‘if they thought by sentencing him to death they would oust the liberation movement, they were wrong.’ His lawyers warned him that a speech like that ‘was hardly designed to facilitate an appeal’, and he explained that he, Walter Sisulu and Govan Mbeki had already decided that they would not appeal a death sentence, because doing so would undercut their effort to inspire the movement against apartheid. George Bizos concluded that the accused were preparing ‘pleas in aggravation of sentence!’94
The defence team decided to present one witness in mitigation – Alan Paton, the distinguished author of Cry, the Beloved Country and a resolute opponent of apartheid as a leader of the Liberal Party. Cross-examination of mitigation witnesses was rare, but Yutar, as we’ve seen, chose to launch a harsh attack on Paton on cross-examination. Joffe thought that De Wet ‘appeared to be enjoying Paton’s discomfiture’, though Bizos remembers him as simply indifferent.95 Then advocate Harold Hanson, whom the defence team had brought in to argue the case for mitigation – apparently at least in part because Bram was so distressed by the prospect of death sentences for ‘the leaders of the African people, his comrades and friends’96 – made his presentation. Joffe describes the scene:
Mr Justice de Wet scarcely appeared to be listening. It seemed likely that he had made up his mind on sentence, and that all Hanson’s eloquence was merely delaying his opportunity to state his mind. As Hanson finished, Yutar rose to his feet to give his ego its last little puff before his hour of glory ended. He would not address the court on sentence, he said, but he had to affirm publicly his faith in the fairness of the court.97
Denis Goldberg watched De Wet during Hanson’s speech, and saw him ‘lean back, the breathing chest under the robes and the white-fronted dicky arcing up and down in accentuated impatience’.98 As it turned out, however, De Wet was not impatient to impose death; something in the case had indeed affected him and his feelings about the proper sentence.
Then De Wet spoke. After expressing briefly his scepticism ‘that the motives of the accused were as altruistic as they wish the court to believe’, he said:
The function of this court, as is the function of the court in any other country, is to enforce law and order, and to enforce the laws of the State within which it functions. The crime of which the accused have been convicted, that is the main crime, the crime of conspiracy, is in essence one of High Treason. The State has decided not to charge the crime in this form.
Bearing this in mind and giving the matter very serious consideration, I have decided not to impose the supreme penalty, which in a case like this would usually be the proper penalty for the crime, but consistent with my duty that is the only leniency I can show. The sentence in the case of all the accused will be one of life imprisonment. In the case of the accused who have been convicted on more than one count, these counts will be taken together for the purpose of sentence.99
The acoustics in the courtroom were so poor that many in the audience had not heard all of what De Wet said. On one account, Denis Goldberg’s mother asked what the sentence was, and Denis answered: ‘Life! Isn’t life wonderful?’100 Nelson Mandela remembered Goldberg’s words slightly differently: ‘“Life!” he yelled back, grinning. “Life! To live!”’101 The accused were ecstatic in that moment. ‘Life imprisonment seemed almost like an acquittal. Somehow, they felt, they had won.’102 Their lawyers were more sombre, as Joffe recalls: ‘We looked at each other. There was nothing more to say. We had managed to save their lives, which I suppose is the most that we could have hoped to achieve. But there was nothing to cheer us in the fact that, though our friends were going to live, they would live out their lives in a South African jail.’103 The bond between the accused and their lawyers had now become profound.
Yet this is not quite the full story. It turns out that in the days preceding De Wet’s decision, hints of what it would be – and more than hints – had been communicated to the defence team. George Bizos received one, from Leslie Minford, the British Consul General. According to Fischer’s biographer: ‘[George Bizos] was at a party the week before the verdict, and there had seen Minford, the British consul-general. Minford had said to him, “George, there won’t be a death sentence, and Rusty Bernstein will be acquitted.” Bizos told Bram, who asked him how he knew. Bizos said, “Minford was drunk, and swore me to secrecy.”’104 But Bizos himself, in his autobiography (published after Clingman’s biography of Fischer), tells this story somewhat differently:
Shortly before my meeting with Paton I visited the Minfords. As I was leaving Leslie put his arm around my shoulder and said, ‘George, there won’t be a death sentence.’ I did not ask him how he knew. For one thing, he had downed a number of whiskies. Certainly I felt I could not rely on the information, nor could I tell the team or our anxious clients. With the publication of Anthony Sampson’s biography of Nelson Mandela in 1999, I read that Minford was thought to have had intelligence links and may have had reliable information about the case.105
In any case, this was not the only indication. Another was much more clear-cut. As Clingman reports it, Harold Hanson, the advocate who was brought on to argue mitigation, went to see Justice De Wet before the argument.
When he returned he said to Arthur Chaskalson, ‘He’s not going to impose the death sentence.’ Chaskalson asked, ‘How do you know?’ Hanson swore him to secrecy, and then said, ‘I asked him.’ Hanson had enquired whether De Wet was considering the death penalty, because if he was it might affect the nature of his argument. And De Wet had simply said, ‘No.’106
The Hanson story is unequivocal. De Wet had made up his mind before the sentencing hearing, and was prepared to convey that to a lawyer for the accused. It seems remarkable that De Wet did so – judges do not normally announce their decisions in private conversation with a lawyer for just one side – and Joel recalls that Arthur felt that integrity barred him from passing the story on to Joel at the time.107 Again the demands of legal ethics had arisen, and it seems clear that in this most fraught of trials even the judge had departed to some extent from what normal ethics would have required. For his part Arthur continued to navigate the ethical shoals of the case, this time avoiding participation in the ethical compromise that the judge himself had undertaken.
But this story does not tell us how De Wet came to make his decision – whether it was the result of the testimony of the accused and the advocacy of their counsel, or of some external force. If the motivation was counsel’s skilful advocacy, this suggests the continuing force of legal rules and reasoning even in the midst of a political trial in apartheid South Africa. If, on the other hand, the source of the decision was some external force, whether from the South African government or from other countries, this suggests that the decision was indeed a breach of legal integrity, as much as it was a welcome choice on the true merits.
Or both factors – legal and political – may have been at work. Mac Maharaj, himself an important ANC leader, writes in his preface to Joffe’s book that ‘Joffe may be right that Mr Justice De Wet was not the kind of person who would countenance “direct … or even indirect political intervention in his domain”. But that does not exclude the likelihood that he may have licked his finger and held it up to determine whether there was a breeze and its direction.’108 In an interview after the book’s publication, Joffe speculated that De Wet might have been of two minds as a result of seeing the accused, whose self-interest he criticised in his brief sentencing statement, and that the government might have let him know that it was under a lot of pressure.109 Maharaj in his foreword goes on to suggest, similarly, that the British and American governments may have offered ‘gentle allusions against the death penalty’ that ‘tipped the balance in favour of the court’s decision’.110 Perhaps De Wet, despite his sensitivity to intrusion, was not immune to this sort of ‘gentle allusion’; he was, after all, willing to tell Harold Hanson explicitly that he was not considering the death penalty, and perhaps he was willing to have other conversations on the subject as well.
If outside influence was involved, it is not simple to determine whose outside influence it was or how it was transmitted. R.W. Johnson, reviewing Joffe’s book, asserts:
It is … most unlikely that the domineering Minister of Justice, John Vorster, would have left such a key decision to De Wet … It seems far more likely that Vorster, probably after discussion with Hendrik Verwoerd, the prime minister, decided it would not be politic to behead African nationalism of its entire leadership … Vorster had doubtless told Van den Bergh [the head of police intelligence] he didn’t want any death sentences, and this would have been passed on to Yutar and so to De Wet.111
It is indeed striking that Yutar did not ask for the death penalty, but Yutar also did not ask for life; he chose not to make any sentencing request at all. And even if Vorster did not want to leave such a key decision to De Wet, it was De Wet to whom the law gave the power to make the choice.
Why didn’t Yutar ask for the death penalty? R.W. Johnson attributes Yutar’s action to instructions from Van den Bergh, but there appears to be no direct evidence to confirm this inference. Anthony Sampson writes that in 1964 ‘the British Embassy in Pretoria reported to London that … van den Bergh … did not expect death sentences, and that Yutar would not ask for them’.112 While Van den Bergh may well have determined how Yutar would conduct the case, Yutar himself came to believe, or assert,
that while he had carried out his professional duty by prosecuting the defendants, he was also responsible for saving their lives by insisting they be charged with sabotage rather than treason. Both charges carried the possibility of the death penalty, but Percy insisted he knew by instinct and long practice that the presiding judge would not condemn the accused to hang for the former charge, only for the latter. And indeed, in sentencing Mandela, Sisulu and the others to life imprisonment, Justice Quartus de Wet mentioned the charge and stated that he was ‘bearing this in mind’.113
But Yutar’s conduct of the trial as a whole makes it hard to credit these professions of benign intent, and indeed Frankel found ‘much evidence’ that Yutar was not motivated by mercy in making this decision.114
Mandela himself hardly seemed to believe that Yutar was seeking to preserve his life at the time the trial was running. He writes in his unpublished autobiography that ‘The State had told defence lawyers that they would ask for the death sentence’,115 and Anthony Sampson in his authorised biography of Mandela says that ‘Fischer warned him that the prosecution would ask for death sentences’116 – though I have not seen this assertion made by any of the other defence lawyers. Even at the sentencing hearing itself, Mandela thought he was about to hear his death sentence pronounced.117 He also writes that the Minister of Justice, B.J. Vorster,
had told Bob Hepple’s father that General Smuts, the Prime Minister during the Second World War, had made the mistake of not hanging him and others who committed a similar offence as ours during the Second World War, and that the Nat[ional Party] government would not make such a mistake. He bluntly told Alex Hepple even before the proceedings started (?) that they would hang us. Why did they change their minds? (check).118
Though Mandela’s account – in which the ‘(?)’ and ‘(check)’ appear – is obviously somewhat uncertain, Bob Hepple (the son of Alex Hepple) confirms it in his own memoir of those days. Hepple writes that Yutar, trying earlier in the trial to force him to become a witness for the state, warned him: ‘All of you can expect to be sentenced to death.’ Meanwhile, according to Hepple, B.J. Vorster told his father ‘that the prosecution would be asking for the death penalty for those found guilty’.119 All of which makes the question Mandela poses – ‘Why did they change their minds?’ – a key one.
Certainly the defence welcomed the signs of worldwide pressure. Stephen Clingman recounts a visit by Bram Fischer to George Bizos’s house
early one morning in October 1963 … George, also an early riser, was watering his renowned vegetable garden at dawn. Bram had a copy of the Rand Daily Mail in his hand, the headline of which announced that the Security Council of the United Nations had called for the release of the Rivonia trialists. Bram knew George was going over to see the accused later that day: ‘Take this to Pretoria,’ he told George. ‘They daren’t hang them after this’ – and then, with even deeper passion – ‘they daren’t hang them!’120
Maharaj also mentions ‘the protests within South Africa and the condemnations and representations made by the outside world including governments and the United Nations’.121 But in the end no one could have counted on international pressure, public or (diplomatically) private, or even South African government signalling, to guide the judge’s decision if the advocacy by the defence counsel, and the testimony by the accused, had not shaped the judge’s understanding of every aspect of the case. ‘At the heart of the “the battle to prevent the death sentence”’, as Maharaj writes, ‘was the strategy of the accused, the dignity and forthright way in which they gave their evidence, withstood cross-examination and championed the cause of freedom and democracy from within the courtroom and the magnificent performance of the defence team led by Bram Fischer’.122
