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The State v. Nelson Mandela: The Trial That Changed South Africa 
by Joel Joffe.
Oneworld, 288 pp., £16.99, July 2007, 978 1 85168 500 4
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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.

Yet the trial was not completely unfair. Justice Quartus De Wet, who heard the case, had all the normal white South African prejudices, but Joffe believes he was his own man and not a politicians’ puppet. Certainly, De Wet saw right through Yutar and dismissed many of his gambits with contempt. It’s true the UN voted 106-1 for the release of the accused, but this was clearly preposterous. They all admitted to attempting the violent overthrow of the government. In any state in the world they would have gone to jail for that, and in many cases would have been executed. They knew that and so did their supporters. What they didn’t admit is that most of them were Communists willing to justify the Moscow show trials of the 1930s. Moreover, it’s clear there were many subplots within the main plot of which the youthful Joffe was unaware.

Joffe’s book is dedicated to the senior lawyer on the defence team, Bram Fischer, ‘who saved the lives of Nelson Mandela and his co-accused’. This seems wrong on two counts. First, as Joffe himself shows, all Fischer’s months of preparation were wasted when De Wet announced that he accepted it as an established fact that Umkhonto we Sizwe (MK, the sabotage organisation) and the ANC were two separate if overlapping organisations, and that the ANC had taken no decision to launch full-scale guerrilla warfare, let alone set a date for it. These were the two greatest hurdles to clear: Yutar, who had tried to equate MK with the ANC and to claim that a guerrilla war was about to be launched, was left gasping, and Fischer was able to sit down without making any argument. But the book also has a thoughtful introduction by the MK leader and former ANC cabinet minister, Mac Maharaj, in which he shows that both the British and US governments had interceded to argue that Mandela and his co-accused should not be given the death penalty. As a result, long before the final verdicts were announced, even officials as junior as the British consul-general knew not only that there would be no death sentences, but that Bernstein would be freed and that Yutar would not even ask for the death penalty in his closing address – which can only mean that the police boss, Major General Van den Bergh, did not want him to.

Maharaj suggests that De Wet, while making up his mind, had sniffed the political wind and on that basis decided against asking for the death penalty. This seems unlikely: the political wind was, after all, full of demands for it. But it is also most unlikely that the domineering minister of justice, John Vorster, would have left such a key decision to De Wet. Vorster was Van den Bergh’s boss and the two men were close. 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 been imprisoned during the Second World War for being a member of the pro-Nazi Ossewabrandwag: Smuts could have executed him for treason but knew that political executions lead to lasting bitterness – a lesson Vorster had had every reason to learn. Vorster had doubtless told Van den Bergh he didn’t want any death sentences, and this would have been passed on to Yutar and so to De Wet. What seems certain is that nothing Fischer said had anything to do with the decision. Whether or not to execute the ANC leadership was a major state decision, not something to be left to lawyers’ arguments – particularly not when the lawyer in question was a known Communist.

In fact, as Joffe can’t have known, Fischer had recently taken over as chairman of the underground South African Communist Party (SACP). What this meant was that he was in a position of political authority over most – and probably all – of the accused. But they were Communists under discipline, and while some were quite open about it (Kathrada and Bernstein, for example), others had sworn to keep their membership secret. Even Walter Sisulu, one of the most senior SACP members, made no mention of it during the five days that he spent under cross-examination. Although far more was made of Mandela’s five-hour speech, Sisulu’s performance was more remarkable. Held in isolation, unable to consult his comrades or his lawyers, surrounded by intimidating policemen and warders, hectored and pilloried at every turn by the melodramatic Yutar, Sisulu never lost his calm or dignity, and answered without lapse or hesitation and entirely without notes. And while Mandela was visibly the group’s leader, nobody – certainly not Mandela – took any decision without consulting Sisulu first.

When I reviewed Anthony Sampson’s biography of Mandela in the LRB,* I raised the problem of Mandela’s own probable SACP membership. This was strongly contested by Sampson, and the notion is upsetting to many of the great man’s admirers because it might mean he’d lied in his speech from the dock, in which he denied membership. But it is important to remember 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. (This was a wise choice for more than one reason. When Mandela underwent cross-examination in the Louis Luyt trial of 1998, it was a disaster. His regal temperament is ill-suited to cross-examination: the judge found him guilty of bluster, disrespect for the court, refusing to answer straight questions and a lack of either reliability or veracity.) It is also possible that he was not lying, that he was, at the time of the Rivonia trial, no longer an SACP member. This would have been known to all the other accused and to Fischer, but they were all under Party discipline and it is not surprising that Fischer didn’t share his knowledge with the non-Communists (including Joffe) on the defence team. In a sense, the accused were Fischer’s political as well as his legal charges. He is also credited by many as having written much of Mandela’s speech.

Many points in Joffe’s book gave me pause. Sergeant Card of the security police, a man of encyclopedic memory, was a devastating and superior witness for the prosecution. This was the same Donald Card who, many years later, befriended Donald Woods and tipped him off about many of the security police machinations against him and Steve Biko. (Card was a professional policeman who became sickened by the behaviour of his colleagues as they began operating death squads and doing whatever else they felt like.) Worse still so far as the defence was concerned was Bruno Mtolo, the only unforced witness: cool, smooth and absolutely deadly as he betrayed all his old MK comrades. The funny thing is, I can remember Ronnie Kasrils, the MK leader in Durban, telling me with pride how he’d recruited this new activist, Mtolo. I steered clear of him, which turned out to be lucky. I also hadn’t known until now that Ahmed Kathrada went under the alias Pedro. In Durban we occasionally heard of a Pedro, an important man in the movement, apparently, but we didn’t know who he was. When my great friend Barry Higgs was detained, the police wanted to know about Pedro and what his second name was. Barry suggested ‘Gonzales’ but spoiled it by laughing. So they tortured him. (He died in his forties, in exile in Devon.) When his main tormentor committed suicide, Barry would say only that he wasn’t surprised that a man who did the things he did couldn’t live with it for long.

Joffe has left his book as it was in 1965, though an ANC exile in East Germany, Edelgard Nkobi-Goldberg, later added a postscript telling us what happened to the dramatis personae. The defence called many people to plead in mitigation but almost all of them found better things to do. Only Alan Paton, who disagreed fundamentally with the use of violence, testified for the accused, brushing aside Yutar’s hysterical attempts to ‘unmask’ him (this despite the fact that it was virtually unheard of for a prosecutor to attack a witness in mitigation). Joffe says that Paton ‘was one of a breed that was in danger of becoming extinct in South Africa: the liberal of principle and courage, who is not afraid to raise his voice against the stream.’ In today’s South Africa ‘liberalism’ is a dirty word, reviled by government propagandists as being synonymous with racism, and those few liberals who dare to speak out are accused of ‘abusing press freedom’. Paton himself has been airbrushed out of history.

It is sad to read of Mandela defending democracy against white fears of racial domination:

This fear cannot be allowed to stand in the way of the only solution which will guarantee racial harmony and freedom for all. It is not true that the enfranchisement of all will result in racial domination. Political division, based on colour, is entirely artificial and, when it disappears, so will the domination of one colour group by another. The ANC has spent half a century fighting against racialism. When it triumphs it will not change that policy.

Or of Sisulu telling De Wet that ‘the mere fact that the Africans are in the majority would not mean black domination’:

DE WET: No, but black control! Won’t it mean black control?

SISULU: Only in the sense that the majority of rulers will be black.

DE WET: That necessarily involves control, not so?

SISULU: Well it might be that control can be exercised by both races together.

The facts have borne De Wet out and made Mandela and Sisulu look, at best, naive. ‘At best’ because the SACP was then a Stalinist party – no Eurocommunist nonsense there – and Sisulu, Fischer and, at least for some time, Mandela, would all have believed in an iron-clad proletarian dictatorship and one-party state. (Later, in jail, Fischer asked at least one comrade gaining his freedom for one last favour: never to criticise the USSR.) But South Africa’s Communists were past masters at dressing their demands up in liberal clothes in order to appeal to the bien pensant international gallery. If Fischer did write Mandela’s speech, then it involved wholesale dissembling, and Sisulu was certainly dissembling too. In a way it makes their performance even more remarkable.

If you take Mandela and Sisulu at face value, it makes you sadder still. Recently, South Africa’s main Sunday newspaper and the main opposition party have both publicised the phenomenon of white doctors applying for jobs, being turned down because they were white, emigrating and leaving the vacancies unfilled. Thabo Mbeki reacted furiously, denouncing the story as false. The newspaper reinvestigated it, found it to be true all over again and reprinted it. There are tens of thousands of vacancies in government service for skilled people, yet whites are almost never appointed and the jobs stay vacant, even though many local communities are now rioting over the calamitous lack of public services. Worse still, there is mounting evidence that many within the ANC were convinced by the effectiveness of apartheid and now want apartheid in reverse. The ANC Youth League openly demands the formation of a ‘Black Broederbond’, and there is an insistent demand for racially segregated business and voluntary associations for blacks only. Mandela tried hard to be more inclusive but he has long since been drowned out by Mbeki’s racial nationalism.

Under apartheid, the University of KwaZulu-Natal, where I was a student, fought hard against racial segregation. Today, its vice-chancellor, Malegaparu William Makgoba, compares white males to superannuated apes, creatures who have for ever lost their place in the evolutionary tree. The only salvation for them, he says, is to learn to sing, dance, eat, dress and in every other way behave as Africans; only then might they – perhaps – be forgiven for being white males. This is the head of the country’s second largest university talking about the group that constitutes the largest single proportion of its academics. In an earlier dispute Makgoba revealed that he rubbed himself all over with lion fat every morning, the better to confront his enemies. When he wrote an autobiography full of equally bizarre material, Mbeki contributed a laudatory foreword. UKZN, now in vertiginous decline, is trying to make Zulu a key language of administration and instruction, though few academics can speak it, and there is almost no Zulu-language literature in any subject. Gallingly, this is exactly the kind of thing old-style racists like Justice De Wet would have foretold.

Being South African and living in South Africa, we have to take all this on board. Nothing is as bad as in the Rivonia days. We can all feel proud of Mandela and Sisulu, of Fischer and, yes, of Joffe. He may be Lord Joffe these days but he played his part. What none of us can feel happy about is that Mandela invited Percy Yutar to his presidential inauguration and later went out of his way to visit him and shake his hand. Mandela explained such gestures by the general need for racial reconciliation, but it doesn’t wash. Yutar had no constituency: South African Jews were trying hard to forget he was a Jew. One has to conclude that Mandela, like Desmond Tutu, had a personal taste for such theatrical acts of forgiveness, enjoyed them for their own sake. Yutar, for his part, was only too happy to suck up to the new man of power. The only consolation I have is that immediately after Rivonia my sister, shortly before leaving South Africa, confided to a Durban friend that while Vorster and Verwoerd were monsters, the one man she’d really like to see bumped off was Yutar. We later learned that her flat was bugged and that a badly frightened Yutar had demanded, and got, a doubling of his bodyguard.

Mac Maharaj, though once singled out by Mandela as a man of presidential stature, fell out with Mbeki. A fine new book by Padraig O’Malley shows what happened next. Although he was one of the ablest ANC ministers and had an impeccable record, Maharaj soon found himself in grave difficulty. Rumours emanating from the public prosecutor’s office that he was being investigated for corruption caused his employers to ask him to resign, though he was never charged with any wrongdoing. Then he was hauled before a special commission set up by Mbeki with a remit so narrow that it was impossible to argue with: Maharaj was publicly humiliated. Now unemployed, he found that friends, though willing to help him, were scared to do so: no one was willing to trust the telephones and even when people wanted to help him with money, it had to be cash because a cheque might be traceable.

He discovered the climate of fear that now surrounds anyone who falls out of favour with the government, and saw the reason in the huge centralisation of power under Mbeki. Press leaks continue to vilify Maharaj, suggesting, for example, that he and his wife have illegal Swiss bank accounts, though no one stands up and charges him with anything. Forced into exile again, he teaches young Americans about the South African revolution in which he played a leading part, but he can’t talk to young South Africans about it. Our revolution is now consuming not only liberals but also its own, and these are dangerous times even for a man whom Mandela counted as among his closest comrades. Mandela has, indeed, contributed a foreword to O’Malley’s book, which, in the present climate, is a defiant gesture. Although we are freer than we were at the time of Rivonia, there is no guarantee that things will stay that way.

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Letters

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.

Arthur Chaskalson
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.

Wim Trengove
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.’

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