this, and to convince him not to sentence them to death, a peril the defence viewed as ‘real and grave’.6
Bram Fischer set out the defence theory of the case in a statement to the court on 20 April 1964. He explained that the defence would, first, correct the record as to which of the accused were members of which organisations, Umkhonto we Sizwe and the African National Congress. In addition:
Second, my lord, in issue will be the allegation by the state that Umkhonto was a section of the African National Congress, to use the phrase so frequently used by the State, ‘the military wing’ of the African National Congress. The defence will seek to show that the leaders both of Umkhonto and of the African National Congress, for sound and valid reasons which will be explained to Your Lordship, endeavoured to keep these two organisations entirely distinct. They did not always succeed in this for reasons which will also be explained, but we will suggest that the object of keeping the two organisations separate was always kept in mind and every effort was made to achieve that object.
Thirdly, my lord, it will be put in issue that the African National Congress was a ‘tool’ of the Communist Party, and that the aims and objects of the African National Congress were the aims and objects of the Communist Party … The defence will deny this emphatically, my lord. It will show that the ANC is a broad national movement, embracing all classes of Africans within its ranks, and having the aim of achieving equal political rights for all South Africans … The evidence will show how Umkhonto we Sizwe was formed, and that it was formed in order to undertake sabotage only when it was considered that no other method remained for the achievement of political rights …
All this will be relevant particularly to the fourth point, and that is this – the fourth issue – that Umkhonto had adopted a military plan called Operation Mayibuye and intended to embark upon guerrilla warfare during 1963 or had decided to embark upon guerrilla warfare.
This point caught Justice De Wet’s interest, and he said, ‘Will that be denied?’ Fischer answered:
That will be denied. Here the evidence will show that while preparations for guerrilla warfare were being made from as early as 1962, no plan was ever adopted, and the evidence will show why it was hoped throughout that such a step could be avoided … and that they [the men in charge of MK and its operations] are to be believed when they say that Operation Mayibuye had not been adopted, and that they would not have adopted it while there was some chance, however remote, of having their objectives achieved by the combination of mass political struggle and sabotage.7
These points were deftly designed, and no doubt represented the fusion of the commitments of the accused and the strategic judgements of their counsel. Their net effect, if they were believed, would be to turn the accused from rampaging, self-interested murderers into sober, and honest, representatives of the African people. The accused would be seen as what in truth (as the world learned in the 1990s) they were: restrained, thoughtful, scrupulous advocates for those whose rights had been so long denied. Though the white judge could not be expected to make their cause his, he might come to see how their cause could be seen as just – and that might save their lives.
Fischer was a tremendously admired advocate, and his articulation of these positions itself carried weight. But the judge had to find some reason to save the clients, not their counsel. For a time the lawyers, while recognising that Bernstein, Mhlaba and Kathrada would need to testify to refute the particular charges against them, were inclined not to have the others testify. As Joffe recalled: ‘We argued that they [the clients] could say little that would prove that guerrilla warfare had not been decided upon or initiated – nothing that could not be as well or better deduced by counsel, from documents. Under cross-examination they might make statements or admissions which could damage the chances of argument on their behalf being believed.’8 Fortunately, they changed their minds.
It was George Bizos, whose strategic judgement – and whose feel for the personalities involved – became integral to the defence team’s decisions, who made the point that the better Judge De Wet knew the accused, the more difficulty he would have in sentencing them to death. To that end, Bizos argued for the accused to give extensive testimony to gain a better sense of their lived experience.9 In his memoirs Bizos adds that ‘the views I expressed at that crucial meeting’ – called by Joel Joffe and held ‘in the Fischers’ shady garden’ to avoid surveillance devices indoors – ‘were not mine alone. They were also the opinions of Walter Sisulu and Govan Mbeki and the other accused.’10
Bizos also had another crucial insight: he predicted that Yutar would be unable to resist the temptation to cross-examine the accused about politics. The courtroom is an arena set up to favour the cross-examiner, but not when the lawyer strays into fields he or she does not understand. Yutar, the defence had seen, had no political insight. Most of the defence lawyers believed that Yutar would stick with the facts that proved his indictment – but Bizos believed otherwise, and was right. Meanwhile, ‘whether the accused agreed with George or not, they insisted that they go into the witness box to nail what they regarded as slanders and distortions made against them by the prosecution’. The lawyers reluctantly accepted the clients’ decision.11
If the accused were to speak, the next question would be who would speak and how. Nelson Mandela was the natural first witness, but it soon became clear that Mandela would not be able to tell the story of the accused effectively in the question-and-answer format of direct examination.12 In addition, he faced a problem: in his 1962 trial for ‘inciting African workers to strike and leaving the country without valid travel documents’, he had taken the position that he did not recognise the legitimacy of the court, because it enforced laws in whose formation he had no voice at all. As he said to the magistrate before whom he was tried, he found himself a ‘black man in a white man’s court’. He had said then that ‘there comes a time, as it came in my life, when a man is denied the right to live a normal life, when he can only live the life of an outlaw because the government has so decreed to use the law to impose a state of outlawry upon him’. And he had observed, presciently, that ‘Other people will be driven in the same way in this country, by this very same force of police persecution and of administrative action by the government, to follow my course, of that I am certain’. If he were now to testify, it might imply that he accepted the legitimacy of the white state’s courts after all.13
And so it was concluded that Mandela would speak first, but not as a witness. Instead, he would make an unsworn statement from the dock. The defence lawyers were pleased to see that this tactic took Yutar completely by surprise. When he sprang to his feet to ask the court to warn Mandela that unsworn statements from the dock carry less weight than sworn testimony, Judge De Wet responded, ‘I think, Mr Yutar, that counsel for the defence have sufficient experience to be able to advise their clients without your assistance.’14
Mandela’s statement became famous. ‘Many a carefully folded printed copy of it,’ Bizos would write, ‘was found by the security police hidden between the pages of textbooks belonging to students arrested for taking part in the 1976 uprisings.’ And many accused in cases yet to come would tell their lawyers that their defence would be ‘the Nelson Mandela Defence’.15 Mandela spoke for more than four hours. He described his political evolution, from his early days in the ANC Youth League to his ultimate leadership of MK. He ‘laid particular emphasis on our resolve to cause no harm to human life’, by employing sabotage rather than more violent means. He ‘told the court of the dividing line between the ANC and MK, and how we made good-faith attempts to keep the two separate’ – one of the central points Bram had advanced on behalf of the accused. He denied ‘that the aims and objects of the ANC and the Communist Party were one and the same’, and emphasised that the ANC was seeking to rectify ‘the terrible disparities between black and white life in South Africa’ – another of Bram’s central points. He did not speak about Bram’s final point, the status of Operation Mayibuye, because he had already been in prison when that
