But after the Rivonia trial ended, Bram would in due course be arrested, tried, and sent to prison, and he would die as a prisoner.
Only one step remained to put the defence team in place: a way to pay the lawyers’ fees. None of the lawyers charged their full fee; Joel recalled that they worked for a tenth or a quarter of their normal charges, presumably depending on their personal circumstances.28 Arthur remembered exactly what he charged: R2,000, or approximately $2,800 for the work of close to a year. His interviewer, Adrian Friedman, asked him how this compared with what he would have charged for regular cases, and Arthur made it clear there was simply no comparison at all, but that he ‘had enough money to manage’.29 But even so, the money was a problem. ‘There was only one person to turn to for funds and that was Canon John Collins of St Paul’s Cathedral, London’, who had created the International Defence and Aid Fund during the Treason Trial at the instigation of the Bishop of Johannesburg.30 Collins supplied some £19,500, on which the entire case was run. Interestingly, he seems to have raised even more – organising an art auction at Christie’s that netted £36,000.31 Perhaps some of what remained was used to cover the living expenses of the families of the accused; Defence and Aid sought to support both trials and families of the trialists.
But even with the advocates working for heavily discounted fees, the budget was still not enough for the lawyers to purchase a full trial transcript. George Bizos similarly recalls that the funding they had was not enough to cover their travel expenses.32 Fischer’s biographer indicates that Bram himself, ‘besides leading the defence, was also arranging for its funding, writing innumerable letters overseas: this was a small team for such a big trial, though they were being paid the lawyer’s equivalent of a pittance’.33 Evidently there was particular concern not to run foul of a rule of legal ethics. Joel Joffe recalled: ‘There was a Bar rule that Counsel must be paid within three months, and if they weren’t, the attorney could not brief another advocate. The Bar was tougher than a trade union. At one point, with money running out, we had to ask Bram to move quickly. It arrived just in time.’34 It seems possible, however, that as with the formation of the legal team (advocates first, attorney second, in contravention of the normal approach), so here the team’s adherence to the rules may have been more a matter of form than of spirit. It is even conceivable that a letter invoking this Bar rule might have been helpful in extracting the promised funds from Defence and Aid, which faced many demands on its resources.
*
The Rivonia accused were on trial for their lives. The charge was sabotage, a charge that didn’t quite carry the ring of treason but still carried the death penalty and was, moreover, in a number of ways easier for the prosecution to prove. And the nine accused – Rusty Bernstein, Denis Goldberg, Ahmed Kathrada, Nelson Mandela, Govan Mbeki, Raymond Mhlaba, Andrew Mlangeni, Elias Motsoaledi and Walter Sisulu, plus Jimmy Kantor, the lawyer who had been swept up in the case after his law partner, Harold Wolpe, escaped from jail and fled the country35 – included some of the most senior ANC figures.36 The lives of the movement’s leaders were literally at stake.
Obviously this posed a profound tactical problem. But it was not simply a problem of surviving the trial. Instead, the Rivonia accused and their lawyers also faced at least two other legal challenges. The accused (or at any rate the most senior of them) were guilty as charged, and they faced a prosecution newly energised to pursue its case against them not just with determination but with disregard for the rules that had long bound South African prosecutors. At the same time the accused imposed their own limitations: they would not defend themselves legally at the cost of harm to their political cause; and they needed to shape their strategy through consultation with lawyers to whom they were positively disposed, but with whom they were not actually well acquainted. Each of these aspects of the development of the defence strategy will emerge more fully in the following account.
As for the more strictly legal challenges, on the issue of their own guilt the ANC had decided that non-violence no longer could sustain their struggle against apartheid, and Rivonia had become the base for Umkhonto we Sizwe (MK, the ‘Spear of the Nation’), the ANC’s military wing. Mandela himself had been the head of MK until his earlier arrest and conviction.
Moreover, the accused faced a further problem, which was that the state had put its full force, or almost its full force – matters would grow even worse in the years to come – into building the case against them. Ordinary witnesses were held in 90-day detention without trial though they were accused of no crime, and the coercive force of this kind of solitary confinement was now becoming apparent. While much of the testimony the security police elicited was more or less accurate, the police did not hesitate to press witnesses further and to manufacture evidence when it suited their interests. This was a new era of dirty tactics. As Hilda Bernstein wrote, ‘The State is revealing for the first time the extent to which it will go, that it will stop at nothing, neither in forcing testimony from witnesses under duress, in the suborning of false evidence, nor in the coaching of witnesses.’37 Her husband Rusty agrees: ‘The Rivonia Trial seems to mark the point of transition from the law as it was to the law as apartheid has deformed it’ – though he maintains that the judge, Quartus de Wet, tried, despite ‘all the inbuilt white South African prejudices and certainties about blacks’, to ‘hang on to the traditional South African legal style in a society where justice has already been sacrificed on the altar of “security”’.38 In any event, those tactics were effective.
How could these problems be solved? Perhaps the most important part of answering that question was answering another: who would be doing the problem-solving? Much traditional lawyering takes for granted that the lawyer will decide most aspects of the course of action to be pursued on the client’s behalf, but that was not what happened in the Rivonia case. Joel Joffe’s account makes it clear that the lawyers gradually came to understand the broad strategy that the clients had developed, and then followed those instructions.
But the first step was for the lawyers and clients to meet. Some of them knew each other very well. Bram, a leader of the underground Communist Party, was a political comrade of the accused. Berrangé would have known at least some of the accused from his work in the Treason Trial. George Bizos, with his heavy political caseload, knew most of them. But Arthur and Joel did not.
Denis Goldberg, one of the accused, remembered that George also helped facilitate their meetings, ‘adding a note of splendid gentility to consultations in an office in the prison’ by bringing ‘packets of Vienna sausages, gherkins and sweetmeats’.39 George’s recollection is that he and Joel brought ‘home-grown salad, fruit, cheese, cold cuts and loaves of French bread’.40
This first day was also a day when what the accused had already endured, in prison or in 90-day detention in jail, became evident. Joffe wrote of Nelson Mandela that ‘his face, formerly well filled out and a rounded, deep-glistening brown, was now hollow-cheeked, a sickly pale, yellowish colour. The skin hung in bags under his eyes. His manner, however, was the same: friendly, easy going, jovial, confident.’ Among the others, Joffe wrote that ‘On the first day [Rusty Bernstein] struck me as the one most obviously affected by his detention. He seemed depressed, listless and nervous.’ At least two of the others, Elias Motsoaledi and Andrew Mlangeni, had been assaulted or tortured while in detention, as they would later declare in open court.41
Lawyers and clients needed to get to know each other. At this first meeting, in fact, the lawyers did not even know who would be brought to them as their clients.42 Mandela in particular was a surprise; after all, he was already in prison when the police raided Rivonia. Unfortunately, his comrades had held onto many incriminating documents – apparently for the sake of history. (Arthur drew from this the lesson that documents should be destroyed whenever possible, a practice he followed in his own life.) Arthur remembered Mandela’s arrival, wearing, in midwinter, the shorts and sandals that were the South African prison uniform for black prisoners. All of the clients, Arthur saw, regarded Mandela as their leader. Everything
