legal and political world of the 1950s in South Africa was dominated by two battles. One was the struggle over the National Party’s effort to deprive ‘Coloured’ South Africans of their right to representation in Parliament; it took the backing of the South Africa’s highest court to finally decide that issue in the government’s favour. The other was the Treason Trial, a marathon proceeding that lasted five years and tied up much of the ANC in legal defence, even though it rather marvellously ended in a verdict of not guilty.
After these controversies comes the Rivonia trial, the most important South African trial of the 1960s and probably the most important of the last three decades of apartheid, from 1960 to 1993. It sent many of the senior leaders of the ANC, including Nelson Mandela, to prison under sentences of life imprisonment. That was a tremendous defeat. But it did not result in their execution, as it certainly could have. That was a profound victory, one that even the National Party, the party of apartheid, would come to recognise, because without this victory Nelson Mandela would not have lived to negotiate the end of apartheid and become post-apartheid South Africa’s first President.
The Rivonia trial is a tremendously significant case. But precisely because it is so integral to South African legal and political history, it has been the subject of many thoughtful works already. I will not trace the progress of the case witness by witness; Arthur’s friend Joel Joffe wrote that book, The State vs. Nelson Mandela. Nor will I trace all the ramifications of this case among the people whom it affected or ensnared; many of these are illuminated in works such as Glenn Frankel’s Rivonia’s Children and Hilda Bernstein’s The World That Was Ours. Instead, while telling the central story of the case, I will focus on the role Arthur played in it and the impact it had on him – above all, the choices the case required Arthur to make at the line between morality and legality, and the connections it enabled him to establish in relationships that were central to the rest of his life.
In telling the Rivonia story, I am certainly telling Arthur’s story. The lawyers for the Rivonia accused understood that the case marked a critical moment in South African life; that the stakes were extremely high; and that they themselves would be tested at every moment and their performance in that test remembered for the rest of their lives. Arthur was an integral member of the defence team, and of the larger team made up of the lawyers and their clients, the Rivonia accused. The decisions the team made, he was part of and contributed to.
Arthur also made vital individual contributions in the division of labour that the lawyers evolved; in this division, Arthur’s role was not primarily to examine witnesses (though he did some of that) but rather to master the law and the voluminous details of the facts, both to offer argument himself and to guide his colleagues in their work with witnesses. (One of the accused, Denis Goldberg, described Arthur as accomplishing, ‘in the days before computer spreadsheets, the setting out of the comments or the remarks of each witness in relation to each of the accused and each of the allegations against us, as if in a spreadsheet’ – and also mentioned that Arthur ‘grabbed’ Denis’s notes to use as well. All this was essential in part because the defence counsel could not afford to purchase a running transcript of the events in court.1) This work of analysis went on all the time, and culminated for Arthur personally in a prominent role in the team’s closing arguments to the judge. But Arthur will not always stand out in the story. We must understand him as living these extraordinary, even epochal moments, and to understand what he lived I must provide the broad outlines of the Rivonia story as it involved all of these lawyers and clients – and many more besides.
*
To begin at the beginning: Joel Joffe, Arthur’s lifelong friend from their days at Wits, was the attorney for the defence in the Rivonia case. As Joel describes his appointment, Hilda Bernstein, whose husband Rusty had been arrested at the Lilliesleaf farm, in the Rivonia area near Johannesburg, along with Nelson Mandela and others, came to his office first. Her husband and the others had not yet been charged, but instead were being held under 90-day detention, one of the ferocious powers South Africa had recently conferred on its security forces. Since she did not know what would happen to him, she asked Joel to take the case if he was charged. Then, over the following weeks, three more clients came to him. One was Albertina Sisulu, on behalf of her husband Walter, Nelson Mandela’s mentor and a core leader of the ANC, also arrested at Rivonia and in 90-day detention. A second was Annie Goldberg, ‘the frail mother of Denis Goldberg’; Goldberg, an engineer, had also been arrested at Rivonia and placed in detention. The third was Winnie Mandela. Nelson Mandela by this time had already been convicted and imprisoned on Robben Island, but it now appeared he would be charged along with those who had been arrested at Rivonia.2
Notwithstanding Joel Joffe’s account of his appointment, what actually took place was this: the advocates who would appear in the trial in fact chose him as their attorney, and one of them instructed Hilda Bernstein to close the circle by formally retaining Joel. Who were the advocates? Arthur was one, though the first advocate involved in the case would have been Bram Fischer. As Stephen Clingman, Fischer’s biographer, writes, ‘in the lead-up to the Rivonia Trial [Arthur] was once again with Bram in chambers, and offered him any assistance should he need it’.3 Certainly Arthur would have understood, as soon as the arrests at Rivonia took place, that another trial was coming, as momentous as the Treason Trial of the 1950s. He would have assumed, too, that Bram Fischer would very likely become counsel to the accused. Fischer, an eminent lawyer, had been part of the Treason Trial defence team; perhaps more important, he made no effort to hide his left-wing politics and so it was natural to assume that the people facing charges would want his aid.
So Arthur volunteered his services to Bram. Bram and Arthur already respected each other deeply – Bram had told his daughter Ilse in 1960, when they all found themselves in an elevator at chambers together, that Arthur was one of the most brilliant young advocates.4 He would tell one of the Rivonia accused that Arthur was the next Isie Maisels – high praise indeed, for Maisels was a tremendously respected advocate who had also played a central part in the successful Treason Trial defence.5 Arthur’s wife Lorraine recalls that Bram was very fond of Arthur even before the Rivonia trial,6 but Ilse’s sense was that they didn’t know each other that well up to this point. If so, Arthur’s choice to volunteer, and his simultaneous decision to press Bram to take on the case, both suggest that he was acting for much the same reasons as he had expressed years earlier when he was a student at Wits: the question was not what was politic, but what was right. To join this case was also an act of courage, as Bob Hepple (an advocate, and for a time one of the accused) would write, for ‘there is already a large amount of hostile comment against the accused in the media. They [the defence lawyers] will be ostracized by many in the white community, and can expect to be targeted by the police.’7
Bram meanwhile may have chosen George Bizos, whom Arthur had known since their days at Wits. George had had a much more political practice than Arthur since their graduation and on that score was a natural recruit for the case. The fourth advocate on the team was Vernon Berrangé, an ex-Communist, the pre-eminent cross-examiner of his day, and a man who fully expected that taking this case would end his legal career in South Africa.8 So the team consisted of two senior, even eminent, counsel, Fischer and Berrangé, and two much younger lawyers, Arthur and George. Bizos would write later that ‘Arthur and I were comparatively junior members of the Bar, and both of us were anxious about what we and our clients would face’.
As for Joel, it was Arthur who had recommended him to Bram. Bram’s initial response was to say he’d need to think about it, because he didn’t really know Joel, but then Bram came back and said he’d like to meet him. So Arthur arranged a lunch with Joel and Bram, and either at this lunch or afterwards Bram said yes, and they asked Joel if he would serve as the attorney, and Joel said he would if the accused wanted him.9 Or rather, Joel said, they first picked another attorney, Michael Parkington, who had worked in the Treason Trial, but he declined and so they turned to Joel. Joel said that Arthur and his colleagues never told him that he was their second choice,
