made actually set a precedent, which the accused in many future political trials adhered to.55
At least once, moreover, the accused chose to surprise their lawyers. They had decided to plead not guilty. But exactly how would they make these pleas? Usually, this question isn’t a question: to plead ‘not guilty’ one says ‘Not guilty’. But when Nelson Mandela was asked by the registrar of the court to enter his plea, he responded, ‘The government should be in the dock, not me. I plead not guilty.’ Then Walter Sisulu entered his plea: ‘It is the government which is guilty, not me.’ At this point, as Joffe recounts, Judge De Wet intervened:
He said sternly: ‘I don’t want any political speeches here. You may plead guilty, or not guilty. But nothing else.’
Walter went on calmly, unmoved by the judge’s remarks. ‘It is the government which is responsible for what is happening in this country,’ he said. ‘I plead not guilty.’56
And all the other ANC accused proceeded similarly.
This was not the only time that the accused disrupted courtroom convention. When they were first brought to court at the beginning of the proceedings, Nelson Mandela was the first to climb the stairs from the holding area beneath the courtroom. Joffe describes the scene: ‘There was a ripple of excitement amongst the public. He [Mandela] turned to face the public, and gave the thumbs up salute of the African National Congress, with his right fist clenched. His deep voice boomed out the African National Congress battle-cry “Amandla” (Power). A large part of the audience, the African audience, replied immediately in chorus “Ngawethu” (It shall be ours).’
And each of his fellow ANC accused did the same. They continued to do so until someone – Joffe never learned who – decided that henceforth the judge would enter the courtroom before the accused.57 That apparently meant that when the accused entered, they were coming into a court already in session, and subject to the constraints on behaviour in the presence of a judge. These clients, it is clear, had a lot to teach their lawyers – and it is no wonder that the lawyers were deeply impressed.
Meanwhile, the lawyers and clients continued to work together, despite a host of absurd restrictions imposed by the commander of the jail where the clients were held. One important restriction was the rule that the lawyers must leave during lunch; this rule served the twin purposes of preventing Mandela and Sisulu (both by then already convicted prisoners) from eating ‘outside food’ and of enabling the jailers ‘to go off duty and have their lunch’. ‘The hours could NOT be changed for any reason at all. And so we worked like that, preparing our case – three hours in the morning, a two-hour break fiddling around in restaurants in Pretoria [where the jail was located], two hours in the afternoon – and then, for the lawyers, back to Johannesburg to work through into the early hours of the morning, usually at Bram Fischer’s house.’ This was an ordeal, but it was probably also an important part of the process by which the lawyers became increasingly close to each other. ‘It was [also] during this period,’ Joel Joffe writes, ‘that I, and I think all the counsel, began really to know the men for whose lives we were fighting.’58
*
As they grew to know each other, counsel and clients developed the elements of their courtroom strategy. Not all of it was unconventional. Before the accused pleaded not guilty, their lawyers had challenged the indictment. Joel recalled that Arthur was very much in the fore in preparation of all arguments for the defence team,59 and George Bizos recalled that Arthur played a central role here: ‘While we consulted with our clients, Arthur analysed the indictment, drawing attention to ambiguities and inconsistencies. He predicted that the indictment might be excipiable and suggested that a comprehensive application for further particulars should be served so that each of our clients would know what specific acts he performed to make him guilty.’60 This move might seem legalistic, and out of place in the political defence the accused and their lawyers were shaping. But in fact the lawyers meant to be legalistic: ‘We were quite determined that, guilty or not, our clients would get a trial in full accordance with the law. They would not be railroaded.’61
The response of the state was in the hands of Dr Percy Yutar, the Deputy Attorney General of the Transvaal. He had already behaved shabbily in not letting the defence lawyers know when their clients would be brought to court for the first time. Now, in response to the application for further particulars, he reacted in a way that was ‘wilder and more ludicrous than we could ever have expected’. In response to the defence’s requests for clarification of exactly what was charged and against whom:
The replies were curt and repetitive. The almost invariable answer was either ‘These facts are known’, or ‘These facts are peculiarly within the knowledge of the accused’. Occasionally facts were – more emphatically – ‘blatant and peculiarly within the knowledge of the accused’. The prosecution was clearly following a simple precept: ‘You are guilty. Therefore you know what you did. Therefore we don’t have to tell you.’62
This response, so inconsistent with the fundamental premise of the presumption of innocence, did not play well in court. Faced with the imminent dismissal of the indictment, Yutar then offered to hand the defence his opening statement; he claimed that this would be the test of whether the defence was really sincere in asking for further particulars. But an opening statement is no more than advocacy. Judge De Wet was unimpressed; the indictment was quashed. This was gratifying. But unfortunately, when the state in due course produced a new indictment, which the defence counsel viewed as having the same flaws as the first one, the judge showed no interest in the defence arguments and dismissed their renewed motion to quash. Then he rejected a defence motion for a postponement, and directed that the trial begin the following day.63
Yutar’s actions at this stage were typical of his behaviour throughout the case. Obsessed with media publicity, he was underhanded and unethical in his dealings with the defence. Arthur, who was known for his intense reluctance to speak ill of others, described him to Adrian Friedman as a ‘very nasty, self-absorbed and I think not entirely honest man’.64 George Bizos recalled that he was the only one of the Rivonia lawyers who stayed on speaking terms with Yutar.65 Yutar had made a fundamental compromise with the security state: ‘He had no political views and was indifferent to apartheid. Still, he became one of Special Branch’s favourite prosecutors. Policemen like Swanepoel would sit behind the prosecution table to smirk and enjoy the show while Yutar demolished defence witnesses.’66
In the Rivonia trial itself, Yutar’s behaviour outraged the defence team. He at least acquiesced in blatant coaching of witnesses, including two whose memory remarkably improved from a Friday afternoon to the following Monday.67 He was gratuitously cruel, perhaps most clearly when he cross-examined Alan Paton (author of Cry, the Beloved Country), who testified in mitigation of sentence; years later Arthur still found it inexplicable that the judge failed to stop Yutar’s assault on Paton.68 His closing argument, in which – to no apparent purpose – he imagined which Cabinet offices each of the accused might fill in a future government, caused Vernon Berrangé to say in his closing that Yutar’s conduct was ‘not in the best traditions in which prosecutions are conducted in this country’ – a criticism not only of Yutar but of Judge De Wet for permitting it.69
As the case went on, Arthur stopped speaking with Yutar at all; he didn’t explicitly refuse to speak with him, but would just go into court and sit down.70 When, after the end of apartheid, Nelson Mandela had lunch with Yutar as a gesture of reconciliation, Joel recalled that none of the lawyers was pleased – but Mandela said that he ‘could not afford the luxury of revenge’.71 The only compensation for Yutar’s behaviour was that his arrogance led him into disastrous trial mistakes, of which the accused were the beneficiaries.
For Arthur as a Jew it may have been
