I had been reading my speech, and at this point I placed my papers on the defence table, and turned to face the judge. The courtroom became extremely quiet. I did not take my eyes off Justice De Wet as I spoke from memory the final words.
During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.16
The defence lawyers had been very anxious about that final sentence, which they viewed as perhaps daring the judge to impose the death penalty. Bram had shown the draft to another senior lawyer, Harold Hanson, and Hanson’s response was that ‘If Mandela reads this in court they will take him out in back of the courthouse and string him up’.17 As Frankel writes: ‘Both Bram Fischer and Joel Joffe argued that such a statement could only antagonize the judge, who might be overly tempted to grant Mandela his wish. When they typed up his handwritten draft, they deleted the sentence. But Mandela would not budge. In the end, at his insistence, the lawyers had to put it back in.’18 The biographer Anthony Sampson says that Mandela conceded one point: he added the words ‘if needs be’.19
Denis Goldberg, another of the accused, felt the power of Mandela’s words in a special way:
His words were a clear challenge to the judge and apartheid South Africa, to hang him if they dared to. At that moment I realized he was also challenging them to hang all of us. I could feel only pride at sharing this wonderful moment. Being on trial for your life is not something you choose. You do not go to prison. You get taken! But what a moment in my life that was. I can truly say that we have looked death in the face and come through the experience as better, stronger people.20
It is worth pausing for a moment to ask one more question: who wrote Mandela’s speech? R.W. Johnson maintained that Bram Fischer wrote it, rather than Mandela.21 But Arthur himself refuted Johnson’s supposition:
The suggestion is completely unfounded. I was junior counsel in the defence team. One of my responsibilities was to gather research material that Mandela requested while preparing his speech. He spent many hours working on it, on occasion editing it in the light of the comments of his colleagues and lawyers, and right up to the day it was delivered, made changes to the wording. The architecture, tone and thrust of the speech were his and his alone. The demeaning suggestion that he may not have been the author is simply untrue.22
Of course, other members of the team, and even sympathisers outside the team, made suggestions, as Arthur’s letter reflects.23 It would be strange if what may be the most important speech made in South Africa – at least before Mandela’s release from prison – had been written without advice. Joel thinks that Arthur in particular may have contributed more than research assistance.24
But the speech was Mandela’s. Perhaps the clearest confirmation of this comes from a recollection of Denis Goldberg’s, not included in his book. Denis remembers that at one point Arthur said that he would have liked to write Nelson Mandela’s speech. As Denis understood this, Arthur was saying that he wished he had had the life that would have been the foundation for such a speech. Now, having gone through the trial with the accused, Arthur had become almost one of them, after initially being engaged more as a professional. Arthur’s words are a mark of how profoundly the trial had affected him, and a sign of the long-term impact this speech, and the trial as a whole, would have on him – but they also underline why it was Mandela, rather than Arthur, who was the author of the speech.
At the end of Mandela’s speech from the dock, Judge De Wet ‘looked at Bram and said – almost gently, Joffe recalls – “You may call your next witness.”’25 That witness was Walter Sisulu, whom the defence considered ‘the key defence witness. If his evidence was believed, the court must find in our favour that Umkhonto and the African National Congress were separate organisations with individual identities and that Operation Mayibuye had not been adopted by Umkhonto as a policy, although Umkhonto had always envisaged that it would have to prepare for guerrilla warfare at some date in the future.’26
These were two of the central points Fischer had presented in his opening statement, and the second – concerning Operation Mayibuye – was the only one that Mandela had been unable to address in his speech from the dock. The defence lawyers were uneasy. ‘It was not that we doubted his [Walter’s] staunchness, but some of us at least doubted his ability to cope with the formidable cross-examination which would be unleashed against him since Mandela had not been in the witness box.’27 Sisulu ‘had left school at Standard Six’ (Grade Eight). Yutar, who would cross-examine him, was a veteran prosecutor, and the first person in many years to be awarded a doctorate of laws by the University of Cape Town.28 But within the ANC no one’s judgement was valued more highly than Walter’s. Joffe recalls that the lawyers ‘put these doubts to the accused’ – a striking illustration of the candid communication that had evolved between lawyer and client in this case. Joffe continues: ‘They knew Walter better than we did. They had little doubt that, on this issue, he was perhaps the most expert of them all. He was the one who knew more than any of them of the inner workings of the African National Congress and of Umkhonto we Sizwe. On these issues they had no doubt whatsoever that he would more than prove a match for Dr Yutar.’29
They were right. Yutar could not resist the temptation to cross-examine Sisulu on political matters, and the result was that he lost his focus on those ‘matters in which the prosecutor was the expert – the detailed wording and meaning of documents, the precise places where they had been found, the significance of the documents to the overall conspiracy, and the implications which the prosecution was going to draw from the documentary evidence’. On a Friday afternoon, at the end of five days of cross-examination, Yutar announced that he would try to finish on Monday; the defence team were startled because they felt he had not yet dealt with the crux of the case – ‘the meeting at Rivonia on 11 July at which they had all been arrested’. But on Monday, Yutar announced that he planned to conclude even more quickly, and in fact ‘a few minor questions of no particular significance, and Yutar’s attempt to shake Sisulu was over and done with’. The defence ‘felt that Walter in the witness box had been a triumph’.30
Each of the remaining members of the accused testified (or, in the case of Elias Motsoaledi and Andrew Mlangeni, made unsworn statements from the dock, as Mandela had). Joffe felt that only one, Raymond Mhlaba, ‘made a rather unfortunate impression in the box’; ‘for some strange reason his sincerity, his honesty and his simplicity did not come across from the witness box’.31 Writing years later, Frankel felt that Yutar had also ‘managed to make [Ahmed Kathrada] appear argumentative and sarcastic on the witness stand’. That was important, because the evidence against Kathrada ‘was no stronger than that against Rusty [Bernstein]’.32
Bernstein, however, may have won his acquittal through his testimony. Joffe considered him ‘in many ways … an ideal witness, one of the best I have come across in the course of my legal career … He was at all times polite and unruffled, and yet he would not concede anything which he did not want to concede, no matter how he was bludgeoned by Dr Yutar.’33 Bernstein, an architect and a skilled writer who was the actual drafter of the Freedom Charter, was hardly an ideological soulmate of the judge. Much of the cross-examination, moreover, essentially consisted of Yutar’s asking Bernstein to describe his radical convictions. Yet in the course of Bernstein’s testimony, Judge De Wet seemed to develop a surprising affinity with this Communist witness before him. At one point Yutar asked Bernstein if he was still a member of the illegal Communist Party, and Bernstein chose not to answer. The judge then informed him that he could be sentenced to eight days’ imprisonment for contempt (and this process could be repeated).
