had to be communicated to the lawyers, Mandela would do it.43
Undoubtedly Arthur and Joel, lawyers with relatively little grounding in South African black politics and relatively little personal experience in close relationships with black people, were deeply impressed by the ANC leaders they were now meeting. Glenn Frankel, based on an interview with Joel, writes:
Joffe had never had black friends growing up. Despite his attempt to treat Africans as equals, he had always harboured the sense that they were somehow inferior. It was something bred into him since childhood. To be among blacks who were truly great men – wise, considerate, caring – was a great revelation. Yet in some ways it increased his burden. These men were more than clients, more even than friends, Joffe felt. They were a national treasure he had been entrusted to protect and defend.44
Joel himself illustrates the transformation he experienced. Telling the story of Hilda Bernstein’s first visit to his office, he mentions that he warned her that
‘public opinion is so heavily against your husband and the others that in the end this is likely to count heavily.’ She looked at me in amazement. ‘Public opinion,’ she said. ‘Public opinion, against the Rivonia prisoners?’ I looked at her, surprised. Was it possible that anyone intelligent, adult, literate and living in South Africa could doubt that the stream of public opinion was running heavily against the Rivonia accused? She looked at me again and said, ‘Mr Joffe, I think we speak a different language. You’re talking of white public opinion. I am talking of majority public opinion, which is not against, but for the Rivonia accused.’
Joel writes: ‘It is so easy to go astray in South Africa.’45 Arthur and Joel were not identical, of course, but they came from a similar background, and it is not hard to infer that Arthur too felt this kind of illumination as he came to know the Rivonia clients.
For their part, their clients – as Arthur recalls – accepted that these young lawyers were there and would do their best for them. But it’s possible to discern the uneasiness the clients must have felt in the words of Hilda Bernstein, who wrote that ‘Arthur Chaskalson was also a young man. He had made a reputation for himself at the Johannesburg Bar by his brilliant mind, attractive personality and easy manner’ – generous praise, but noting Arthur’s youth and tacitly acknowledging his relatively non-political approach to his work up till then.46 Her husband Rusty, one of the accused, similarly wrote of Arthur, ‘whom most of us are meeting for the first time’, that ‘Bram recommends him as a brilliant young barrister who is prepared to risk a lucrative career in commercial and insurance law to take a case against the tide of public opinion. It proves to be an inspired choice,’ and Joel ‘an equally inspired’ one.47
Lawyers and clients began to meet. Of course they met inside the prison, and they took for granted that their meetings were under surveillance. To counter this, they devised ways of communicating discreetly, for example by writing down, but never speaking, the name of someone they are discussing, and then burning the revealing pieces of paper before leaving the meeting. (Fortunately, they were allowed to smoke.) On one occasion, the police officer Swanepoel, who as we have seen had already crossed Arthur’s path, was vigilantly observing a meeting of the accused. One of them, Govan Mbeki, carefully wrote a note and passed it to Mandela, who judiciously read it and passed it along. Swanepoel couldn’t resist any longer, and burst into the room to confiscate this revealing piece of paper before it was burned. Mandela recalled that its message read, in block capitals, ‘ISN’T SWANEPOEL A FINE-LOOKING CHAP?’ But memories have faded and it is possible Mbeki wrote, instead, ‘“It’s so nice to have Lieutenant Swanepoel with us again,” (deliberately downgrading the captain’s rank).’48
More seriously, they confronted the question of how to defend the case. The lawyers had warned the accused from the start that they faced potential death penalties – although, for reasons that remain obscure, the state never explicitly asked for this sentence. The accused, for their part, believed that death sentences were likely; Nelson Mandela writes that ‘from the start, we considered it [the death penalty] the most likely outcome of the trial’.49 But there were nine people accused; inevitably the evidence against some was stronger than that against others. ‘On the other hand,’ Joffe writes, ‘there was the overall consideration – which to the accused seemed to be the most important – that of establishing the true facts of the movements in which they had been engaged and their true aims as distinct from the gross distortions presented by the prosecution’.50 As Joffe elaborates:
None of [the accused] were prepared to deny associations with the bodies to which they had belonged; those who had been associated with the African National Congress would under no circumstances deny the fact, nor would those who had been associated with the Communist Party, or Umkhonto we Sizwe. In their eyes, they made clear, this was less a trial in law than a confrontation in politics … They would be speaking in court as … almost the gladiators of their cause. And they intended to speak as they would expect representatives of such a cause to speak when they appeared in public outside a court – proudly in support of their ideals, defiant in the face of their enemies. This was their intention from the start, and the spirit of their general instruction to us.51
Joffe’s reference to ‘general instruction[s]’ is important. The Rivonia accused trusted their lawyers, but they did not necessarily take their advice. And they thought for themselves. Speaking specifically of the question whether the accused should plead guilty or not guilty, Joffe writes that ‘we lawyers participated in some of the sessions in which this question was debated. There were others held in private. Finally we were told that they would all enter a plea of not guilty.’ Similarly, when the lawyers pointed out that some of the accused were in different situations from others, so that they might need separate representation by counsel, ‘they rejected the suggestion out of hand’.52
So, too, at a later stage when lawyers and clients debated whether to leave some aspects of the testimony of a prosecution witness, Mtolo, unchallenged – thereby in effect conceding their truth. Joffe writes:
Nelson was a lawyer. He understood fully the implication of what he was saying. Nevertheless, we felt it necessary to warn him of it, and even tried to argue him out of his position … We pointed out that in doing this, he might well be signing his death warrant, for there could not thereafter be any possible denials of guilt or attempts to evade conviction because the full proof of the offence had not been given in court.
Nelson was unmoved. This much, he said, he had understood ever since he had taken a position of responsibility in the political movement … On this occasion the responsibility on him was to explain to the country and the world where Umkhonto we Sizwe stood, and why, and to clarify its aims and policy, to reveal the true facts from the half-truths and distortions of the State case. If in doing this his life should be at stake, so be it … Walter [Sisulu] and Govan [Mbeki] … took the same attitude.53
Perhaps the most unconventional of the decisions the accused made was that while they would testify, and acknowledge their own acts and responsibility, they would simply refuse to answer questions that would require them to implicate others. ‘They had laid down for themselves a very clear basic principle: they would state the facts as fully as possible, but they would not under any circumstances reveal any information whatsoever about their organisations, or about people involved in the movement, where such information could in any way endanger their liberty.’54
The problem with this position was that it had no basis in law. ‘We explained to them that once in the witness box, they were obliged to answer all questions put. They insisted, quite simply, that they would refuse to answer any questions which they thought might implicate their colleagues or their organisations. We told them that in doing so they might well antagonize the judge and make their case worse, not better. They were unimpressed.’ But the accused
