be as loyal to the system of apartheid as anyone.72 Rivonia put the role of Jews squarely before the public, much as organised Jewry in South Africa sought to escape this. As Frankel observes: ‘All six of the whites arrested at Rivonia came from Jewish backgrounds, as did … many other prominent leftists. The four white defendants at the trial – Bernstein, Goldberg, Hepple and Kantor – were all considered Jews, even those who were resolutely atheistic or of mixed origin.’73 Of course, two of the five lawyers for the defence – Arthur and Joel – were Jewish too.
And what of Judge De Wet, who had granted one motion to quash the indictment and then rejected another that seemed similarly well-founded? Rusty Bernstein – sitting with the other accused on trial – did not think that De Wet had abandoned his fidelity to the principles of South African law. Nor did Joel Joffe. He felt that De Wet was pretty appalling, but that there could have been someone much worse. This was a time when no one knew how far the government might go; Joel recalls that there was a question about whether there would even be a trial, or whether the accused would be summarily executed.
As a person, De Wet struck Joel as ‘obstinate and self-willed’, the awkward result of his pride in his position and his ancestry (his father had been ‘a noted South African judge before him’), combined with his awareness ‘that, as a lawyer, he was unable to measure up to the very high standards of many of the counsel who appeared before him’. That arrogance meant that he would not take instructions from the government. But instructions were not needed, because de Wet was, after all, ‘unquestionably sensitive to the needs of the white society which he believed in and upheld, and also of the government which was its foremost protagonist. He acted out their role, I think, unconsciously, in the firm conviction of his own judicial impartiality, and without any need for a direct word or intervention from any source whatsoever.’74
But Joffe’s account of the trial suggests that De Wet remained in a strange way unpredictable. At one moment he might ask a question that struck the defence as revealing ‘crass prejudice’; and at another he would acquiesce in the accused’s refusal to answer questions that would reveal information about their colleagues – an admirable stand, but one with no support in law at all.75 He would continue to surprise the defence right to the end of the trial.
The Rivonia Accused Make their Case
Two crucial decisions had to be taken as the accused prepared to make their case: what their defence would be and how it would be communicated. To be sure, the defence had not been invisible, or inaudible, during the state’s presentation of its case.
*
To understand the play of the evidence in the case, it is essential to look with care at who said what. The decisions made by the defence about what testimony to present grew in part out of a point-by-point analysis of the case against them, an analysis not designed to show the innocence of the accused – which could not be demonstrated – but to show that the decisions the accused had made when they undertook acts of sabotage were both decent and understandable. In addition, and perhaps more fundamentally, the defence choices emerged from the understanding the accused and their counsel had arrived at concerning the capacity of the accused to speak effectively for themselves against the state. The case became, in effect, an assertion of black political decency and personal self-respect, in the face of the arrogance of the state. The accused were right to see their defence in 1963 and 1964 as part of a challenge to white authority that might last a very long time; it did, and the decisions that went into their defence were important to the political struggle that would occupy so many years to come.
It had taken months since the trial began on 3 December 1963 for the state to lay out its evidence, months in which the prosecution presented many witnesses and several hundred documents, ‘many of them lengthy, involved, political treatises’.1 Arthur would undertake ‘the incredibly tortuous job of analysing all the documentary evidence’, a task that meant that all the documents ‘had to be considered in detail, analysed, interpreted and fitted into the right place in the overall story in a way which the prosecution had scarcely ever attempted to do, and when it had, had done wrongly’.2 Judge De Wet, in what Joffe considered ‘one of his most remarkable judgments’, had effectively encouraged Yutar to present even irrelevant testimony, on the ground that he was quite capable of sorting the relevant from the irrelevant and would address any relevancy objections at the end of the trial. Moreover, many of the state’s witnesses, some of them ‘accomplices’ but others with no real connection to the accused at all, had been held in 90-day solitary detention without trial. Joffe wrote about the effects:
The other accomplices [with a single exception, Bruno Mtolo] were all unwilling. They had all been held for long periods in solitary confinement. They had all made statements to the police which the police did not find satisfactory, and they had stuck to those statements despite months of browbeating and threats, until finally they agreed to amend their statements to satisfy the police and thus provide a possible route to their own freedom. The duress was naked and shameless. And in addition, most of those forced testimonies were to facts which, on the face of it, were not themselves credible.3
Between false evidence and true, by the end of its case the state had laid out proof that the ANC had been engaged in a military campaign of sabotage against the South African state, and that six of the accused, including the three prominent leaders Nelson Mandela, Walter Sisulu and Govan Mbeki, as well as Denis Goldberg, Andrew Mlangeni and Elias Motsoaledi, were demonstrably guilty. (On the other hand, the defence lawyers believed that the state had offered ‘virtually no evidence of complicity in the alleged conspiracy’ as to Rusty Bernstein, Raymond Mhlaba and Ahmed Kathrada.) And along the way, ‘by way of aggravation of sentence, the State had led much evidence of cases of murder, and of sabotage where murder could be said to have been attempted’.4
Moreover, the defence had implicitly tipped its hand, by not cross-examining on many points. As Joffe wrote, speaking of the earliest witnesses for the state:
Had he [Yutar] been a more astute student of psychology, and devoted more time to trying to understand the accused and less to the publicity angles of this case, he would have seen from our cross-examination of the farm servants, that we were not denying any of the story of what had been going on at Rivonia. We were not disputing that the accused had visited and some of them had lived there. We were not disputing that some had been there in disguise or under pseudonyms. We were not disputing that they had used the place both for duplicating documents and for operating a radio transmitter. We were not disputing that the place had been bought specifically for these purposes and that the accused were … at least in some control of the property and its administration.5
Other points had been conceded this way as the prosecution continued its work – for example, because of the self-imposed limits the defence adhered to in cross-examining an important state witness, Bruno Mtolo, a turncoat whose first statement as a witness was to affirm that he was indeed ‘a saboteur’. These limits – driven partly by the clients’ determination to tell the ANC’s story to the world through this trial, and partly by their equal determination not to incriminate any of their comrades in the process – in this case meant, among other things, ‘an implicit admission that [Mandela] had belonged to Umkhonto and had held a senior position in it, and that he had canvassed and obtained the aid of foreign countries to train military personnel for the struggle against the South African government’. None of this meant that the defence had simply given up; on the contrary, as Joffe makes it clear, their surgical cross-examiner, Vernon Berrangé, had fiercely pursued falsehoods
