- The State v. Nelson Mandela: The Trial That Changed South Africa by Joel Joffe
Oneworld, 288 pp, £16.99, July 2007, ISBN 978 1 85168 500 4
The political climate in South Africa when the Rivonia trial began in November 1963 was so poisonous that Joel Joffe, then a young lawyer, took the case on only because he had already decided to emigrate. Two years later, he wrote up his lively insider’s view of the trial and allowed Lionel Bernstein, the only defendant to get off, to rewrite it to the point of virtual co-authorship. It was published somewhat obscurely in 1990 and is now reissued for the wider audience it deserves. Rivonia was the moment at which the African National Congress, having opted for armed revolt (a foolish decision, though one with which, as a young South African, I was wholly in sympathy), collided head-on with an Afrikaner nationalism still at its muscular zenith. The result was that Nelson Mandela and seven of his co-defendants were sent to jail for life – between 22 and 27 years, as it turned out.
Much about the trial was grossly unfair. It was held in Pretoria, the citadel of virulently anti-black nationalism, to make sure that ANC sympathisers at the trial would be few, and frightened. The Sabotage Act, under which the accused were tried, was a monstrous piece of legislation, putting much of the onus on the defence and removing the need for corroborating evidence. The defence team were kept in the dark: they didn’t even know when the trial would begin, let alone the evidence to be called, and were given inadequate time to prepare their case. Witnesses were held in solitary confinement – some were tortured – and told that they would be released only if they gave evidence ‘satisfactory to the state’. There was almost open coaching of witnesses by the prosecution, while the press and radio ignored the sub judice rule and campaigned hysterically against the accused. As if to show what a bad idea it was to annoy the state, the wholly apolitical James Kantor was held in detention as an act of revenge for his (highly political) brother-in-law’s escape from jail.
Above all there was Percy Yutar, the deputy attorney-general of the Transvaal and the state prosecutor. Yutar, the regime’s Vishinsky, shrieked theatrically, played to the press and continually forsook legal niceties to please the political gallery. Aware that most of the ANC’s white supporters were Jews, as were a number of their legal defence team, including Joffe, he was determined to show the regime that he was a ‘good Jew’, resolved as they were to crack down on the blacks and the bad Jews. As soon as he met Joffe he began praising the police, saying that he hadn’t heard one anti-semitic remark from them in three weeks. Knowing – as they both did – that the police would have stifled their prejudices only because Yutar was on their side, Joffe protested that this was no special cause for praise. Yutar disagreed strongly: wouldn’t it make anyone anti-semitic ‘to have people like Bernstein and Goldberg going around stirring up the Bantu’? Yutar, like many white South Africans of the time, saw blacks as perfectly happy with their lot unless got at by agitators.
The accused were kept in conditions that made it nearly impossible for their defence team to consult with them. Yutar obtained evidence from prison staff who’d spied on them, and bugged their privileged conversations with lawyers. He used against Bernstein a letter he’d written to his sister that the state had intercepted. In today’s South Africa the Jewish community boasts of the many Jews who opposed apartheid, but the fact is that many supported it. In Durban the synagogue was used by the police to spy on a radical Jewish lawyer, clearly with the consent of the synagogue authorities. But the Afrikaner National Party had for many years forbidden Jews to join it, so for most, collaboration had its limits. For Yutar there were no limits. Comparing him to Vishinsky perhaps conceals the extent to which he wanted to embrace the cause; to show that a small man, an intellectual with a doctorate and a high-pitched voice, might be received as a hero by huge rugby-playing Afrikaners and become their greatest propagandist. A better comparison might be with the weedy, club-footed intellectual (with a high-pitched voice) who became the stormtroopers’ greatest propagandist, Joseph Goebbels.
[*] 19 August 1999.
[†] Shades of Difference. Mac Maharaj and the Struggle for South Africa (Viking, 648 pp., £19.99, March, 978 0 670 085233 8).
Vol. 29 No. 18 · 20 September 2007
R.W. Johnson suggests that Nelson Mandela’s speech at the Rivonia trial may have been written by the leader of the defence team, Bram Fischer (LRB, 16 August). 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.
Sandton, South Africa
R.W. Johnson says that ‘in both Mandela’s trials he opted to avoid cross-examination (and thus taking an oath) and decided instead to make a moving political speech.’ But that is not true. My father was a junior prosecutor in the treason trial in the 1950s, and has told me that Mandela chose to give evidence under oath and submit to cross-examination although he was not obliged to do so. He was cross-examined for some days and impressed even the prosecution by his open and forthright manner.
Johnson goes on to say that, when Mandela was cross-examined in the Luyt trial in 1998, ‘it was a disaster,’ and that the court made credibility findings against him. This isn’t true either. I was lead counsel for Mandela in that case. Counsel for Luyt aggressively cross-examined Mandela but did not impugn his honesty in any way: he made that clear in his closing address by stating that ‘we do not question the president’s integrity or honesty.’ Despite this concession, the trial judge made adverse findings about Mandela’s evidence. Mandela was, however, vindicated on appeal by the unanimous finding of the Constitutional Court that there was no basis on which it could be suggested that his evidence had been anything but honest and true.
Sandton, South Africa
R.W. Johnson writes: No one doubts that Mandela spent a lot of time on his speech. However, I have found that among those close to the main actors there is a pervasive impression that he received considerable assistance with it. Bram Fischer, Lionel Bernstein and many of the others were able men in that regard and Bernstein’s role in drafting the Freedom Charter is well known, although ANC mythology still has it that this was somehow put together by ‘the people’. It was quite common for better educated whites to ‘ghost’ speeches for blacks in that era: indeed, I wrote such speeches myself. The ANC politician whose speeches I helped with was a brave man – he had to give those speeches, not me.
When I spoke of ‘both Mandela’s trials’ I was referring to Rivonia and Mandela’s earlier trial for incitement, when he claimed to have no obligation to obey the law (since he couldn’t vote), insisted he could not receive a fair trial and attempted to have the judge recused. He appeared throughout in traditional African dress and used his statement to great effect, turning the trial into a political event, like Rivonia. I didn’t refer to the treason trial since Mandela was only one of 156 accused and it would be odd to refer to that as ‘Mandela’s trial’. I am surprised that Wim Trengove is keen to acknowledge his father’s prosecution role in that disgraceful, trumped up trial.
In the Luyt trial Mandela had to appear after one of his ministers and a chief civil servant had been forced to admit to the court that they had lied under oath, claiming that there was ‘nothing wrong in lying to protect the president’. Justice De Villiers questioned the credibility of Mandela’s evidence, suggesting it might ‘be due to a lack of veracity, or unreliability, or a combination of these factors’, adding that ‘the president’s overall performance on the witness stand was less than satisfactory. His overall demeanour is, to my mind, subject to material criticism.’ (Mandela had refused to address the judge as ‘Your Lordship’.) For a president to receive such a public dressing-down was indeed disastrous.
Luyt objected, not unreasonably, to the case being appealed to the Constitutional Court. As Justice Van Schalkwyk put it in his book, One Miracle Is Not Enough, ‘the perception remains that the Constitutional Court under the leadership of its president’ – Arthur Chaskalson – ‘is an ANC or ANC-sympathetic institution.’ Luyt went further, pointing out, truthfully enough, that all the judges on that court were personal friends of Mandela. When the court behaved as he had predicted it would Luyt remarked that ‘it was about as surprising as hearing that the All Blacks had beaten Japan.’