Joel agreed to serve, Bram then sent Hilda Bernstein to Joel, and the circle was closed.11
Why didn’t Joel tell the story this way in his book? Joel explained to his interviewer Adrian Friedman that he didn’t want to embarrass Arthur.12 Arthur confirmed this, telling the same interviewer that when Joel wrote his book he didn’t deal with this matter at all; in order to protect Arthur and perhaps others, he left out lots of things.13 There certainly could have been embarrassment, because the advocates had essentially begun their work by undercutting at least the spirit of the rules separating the Bar and the Side Bar. Whether their arrangements directly violated those rules may be debatable, but this too seems likely, because today – when the rigidity of the division between advocates and attorneys has been eased – there remains a rule declaring that ‘Save in exceptional circumstances, it is improper for counsel to recommend a particular attorney or firm of attorneys to lay clients’.14
In this and many other respects too, the lawyers for the accused in the Rivonia trial would find themselves pressed to the limit of their ethical obligations. To lawyers as committed to ethical boundaries as Arthur, these choices were no small matter. They took courage. They required financial sacrifice. They called for trust, between the lawyers and between the lawyers and clients, that no one would disclose the delicate moral choices being made, and so these decisions were part of the creation of deep solidarity among the lawyers and the accused. They also demanded a willingness to parse the rules of ethics and their interaction with what might be called the rules of justice – a combination of close legal reasoning and of weighing strictly legal obligations against more broadly moral duties.
It’s worth pausing for a moment to understand how Joel came to be available to play a role in the Rivonia trial at all. Joel was, when we last saw him, an advocate, joining Arthur in the defence of the Letsoko accused. But he had meanwhile decided to leave South Africa, whose future he had come to despair of. As he was preparing to move to Australia, the law firm of Kantor and Wolpe, where Joel had worked as an attorney at an earlier stage of his career, had fallen into crisis: Harold Wolpe, arrested shortly after the Rivonia raid, had escaped from jail and fled the country, and his partner and brother-in-law Jimmy Kantor, a man with little or no political involvement, had then been arrested too. The firm needed someone to bring its affairs to an end, and Joel agreed to move from the Bar to the Side Bar – in other words, to cease practice as an advocate and instead become an attorney – for this purpose. Arthur, describing this decision, said that Joel had ‘saintly qualities’ – an echo of what had once been said about Bram Fischer by a witness against him when Bram, after the Rivonia case, became a criminal accused himself.15 And Arthur facilitated the transition, which might have required a six-month cleansing period, by finding a precedent in special circumstances after the Anglo-Boer War when the six-month rule hadn’t been enforced, and so Joel was able to make this transition. In fact, as late as August 1963, Joel was still serving as an advocate alongside Arthur in the Letsoko case. Hilda Bernstein would come to his office in September to retain him as the attorney for the Rivonia trial.16
Bram Fischer himself did not agree at once to do the case. He may have hoped to pass that cup to Berrangé.17 But Arthur argued quite strongly that Bram should be involved.18 Why was Bram reluctant? Because he was himself implicated, deeply, in the underground conspiracy that had operated out of the farm in Rivonia. At the time, however, his colleagues didn’t know that. Arthur told his interviewer that none of them knew Bram was as deeply involved as he was, or at any rate Arthur himself didn’t and he was pretty sure George and Joel didn’t – though they knew Fischer was involved and assumed he had some contact with the accused as his political associates. George Bizos writes, similarly, that when the lawyers came together, ‘none of us knew the extent of Bram’s involvement in the underground movement or that this was the cause of his hesitation’.19
Arthur and his colleagues would gradually learn more of how deeply Bram was involved. Arthur recalled that midway through the trial they were working through the documentary evidence in the case, and came across one or two quite incriminating documents in Bram’s handwriting. Adrian Friedman asked Arthur what he did then; Arthur answered that he kept reading. Meanwhile he told Bram. How did Bram react? Apparently he didn’t say much, but Arthur said, ‘I told him what was there. So at that stage I knew that.’ Earlier, when the lawyers and clients had got together for the first time – most of the clients had been in 90-day detention without trial, out of their lawyers’ reach, while Nelson Mandela was already in prison on Robben Island for an earlier conviction – Arthur recalled that Rusty Bernstein, who had a good sense of Bram’s actual involvement, said that Bram ‘should get the Victoria Cross’. Arthur acknowledged that he didn’t realise the full implications of what Bernstein was saying at the time, but he understood that Bram was very vulnerable as a general matter.20
During the trial the noose was slowly tightened, though never to the point of actually arresting Bram – that would come later. The trial began with the testimony of several African witnesses who had been employed at the Rivonia site; any of them could potentially have identified Bram himself as one of the people they had seen there. With this in mind, Bram chose to be absent during the first week of trial – leaving the cross-examination to the youngest members of the team, George and Arthur. George recalls that one focus of their cross-examination was the fact that these witnesses had been held in detention without trial.21 Arthur’s cross-examination of one of these witnesses, a man named Joseph Mashifane, revealed a number of problems in Mashifane’s identification of Rusty Bernstein as having participated in setting up a radio antenna for a clandestine ANC broadcast – and the undercutting of this claim quite likely played a part in Bernstein’s ultimate acquittal.22 It is worth adding that Arthur begins his cross-examination of Mashifane by addressing him as ‘Joseph’. Perhaps that was a tactical choice, but it indicates at least that even for dedicated anti-apartheid lawyers in 1963, it was acceptable to address an African witness by his or her first name. Over time, the Rivonia lawyers would develop a profound respect for their clients – but at least at the beginning this respect was shaded by the condescending traditions of South African race relations.
How well did Arthur understand the situation Bram faced? Arthur recalled that he never spoke to Bram about the problem posed by these early witnesses, but he pointed out years later that the defence had actually sought a postponement that would have enabled Bram to return in time for these witnesses. Moreover, the defence rarely knew when any given witness would be called, so Bram could not avoid facing the risk of encountering a witness who would identify him (though none ever did).23
The tension did not abate. Later in the trial, the prosecution presented a particular document which a handwriting expert testified was written by Wolpe. The prosecutor passed this document to Bram, who looked at it without reaction and passed it to George Bizos, who looked at it and passed it to Joel – who saw that the handwriting was in fact Bram’s. Joel says that Arthur too must have been there for this moment.24 At another point, the prosecutor seemed to go far out of his way ‘to implicate Bram and associate him with the Communist Party’. As George Bizos recalls, the prosecutor presented in court an article in which Rusty Bernstein, one of the accused, had praised Bram ten years previously. The article had no relevance to the charges the accused faced.
Yet suddenly, and apropos of nothing in particular, Yutar [the prosecutor] pounced:
YUTAR: Who was the secretary general of the Communist Party?
BERNSTEIN: I am not prepared to answer that question.
YUTAR: Well, since you are unable to answer that question, perhaps we may conclude that it was the gentleman referred to in the exhibit before you. Will you please hand it to the judge?25
This was playing dirty, presumably to send a message to Bram.26 For now, as his biographer writes, Bram was relatively safe – the government apparently did not want to face the negative publicity
