trial: ‘We decide that we will not say anything about anyone still in the country. We will name no names. We will set out as clearly as we can the strategy and aims of the movement. We will make no denial of any true facts, and no apologies.’76 But it is in accord with the rather different account of the approach of the accused that Mandela gives, not in his published autobiography, but in the unpublished version:
We defended ourselves on the basis of what the enemy knew, on what was unknown to the enemy and on the basis of the political situation in the country as we assessed it. We readily admitted what was known by the enemy to be true but we refused to give away any information we considered dangerous to our case or that might implicate others.77
What Mandela says here is that the accused were prepared to conceal damaging information if the state – ‘the enemy’ – did not already possess it. The state knew a lot about Operation Mayibuye, but it had no testimony from inside these high-level meetings, and so the accused took advantage of this gap in the case against them, putting forward the line that they considered most helpful to their cause. (How they coordinated their testimony isn’t clear, since they knew they were under surveillance. Denis Goldberg thinks that they must simply have pursued a shared sense of self-preservation,78 but it is possible that Goldberg had less opportunity to consult his comrades than did the African members of the accused – who were, naturally, separately confined by race.)
All of this placed the lawyers for the accused, or at least Fischer personally, in a particularly acute ethical dilemma. If anything, the issues they confronted here were more acute than those involving the establishment of the defence team. Did the lawyers know that Mbeki was lying? Surely Fischer did; he was himself a part of the debates over Operation Mayibuye and would in all likelihood have been in more than one meeting in which Mbeki expressed his views. He himself was sharply opposed to the plan and firmly believed that it had not been adopted as a basis for action.79 As to the others, it is more difficult to say. Joel Joffe writes, without elaboration, that ‘the accused, in their brief to us, told us that Operation Mayibuye was not adopted but was under discussion’, and goes on to repeat Walter Sisulu’s testimony ‘that, at the time of arrest, no decision had been taken’.80 George Bizos specifies the uncertainty somewhat further, but comes to the same ultimate conclusion as Joffe. He writes that ‘Govan Mbeki, who was privy to the discussion in MK, was unclear about its ratification within the liberation movement … Consequently, our clients believed that the plan had not been adopted and our defence was conducted on that basis.’81
But Stephen Clingman, Fischer’s biographer, gives a different account:
In this the tactical strength of George Bizos came to the fore. He argued that it was imperative to give the judge a reason not to impose death sentences, and that the way to do it was to prove that ‘Operation Mayibuye’ had been discussed but never adopted. Given the dispute on the matter [among the accused] there were at least grounds for such a contention, and Bram decided to make it the centre point of the defence.82
Can this account be squared with Joffe’s recollection that the accused instructed their counsel to adopt this strategy? Yes, and quite straightforwardly. It is certainly plausible to conclude that this issue was not decided by either the accused or their counsel unilaterally. Rather, they made the judgement through a consultative process. That consultative process could have featured advice given by Bram Fischer – who did know what was going on – followed by a separate meeting among the accused that generated a response in the form of a direction to their counsel. This instruction in turn would not have contradicted anything that the other lawyers knew; they had discussed the situation with their clients and now their clients informed them of the stance they wished to take. Whether Mbeki’s decision to testify as he did reflected that he had been convinced by the others that in fact Operation Mayibuye had not been fully adopted, or whether he simply chose to ‘put forward this line’ – Mandela’s telling phrase – in accord with the others, might have remained obscure. Lawyers frequently wonder if their clients are telling the truth, but doubt is not the same as conviction, and there is no ethical bar to presenting testimony that the lawyer merely doubts.
But suppose the contrary were true – that the lawyers were fully aware that the clients had decided collectively to put forward this line despite its falsity. That would certainly take the lawyers outside the bounds of conventional legal ethics. But it would not take them out of the realm of ethics and honour. On the contrary, it would reflect a belief that in the circumstances of this case, the imperative to save their clients from hanging for unjust reasons justified departing from normal legal ethics. What Arthur might have thought about this ethical assessment will be a subject of Chapter Eight.
*
At last the long trial was over. Both sides prepared their closing arguments – but Judge De Wet soon made it clear that he had already decided several crucial issues. As Percy Yutar reached new heights, or depths, of rhetoric – asserting, repeatedly and without evidence, that the accused had set the date for the start of guerrilla warfare, and that this was 26 May 1963, though the accused were not arrested until six weeks later and clearly had not begun guerrilla warfare by the time of their arrests – the judge interrupted: ‘Dr Yutar,’ he said, ‘you do concede that you failed to prove guerrilla warfare was ever decided upon, do you not?’ A quick dialogue between the prosecutor and the judge ended with Yutar seeming to yield the point (‘As Your Lordship pleases’) but then continuing on nonetheless.83
The defence found the prosecutor’s argument so contentless – ‘there had not been an argument, only a summary and a lot of rhetoric’ – that ‘we decided we would not deal with Yutar’s argument at all, nor would we follow a similar rhetorical approach. We would argue the case on the issues which had been formulated right at the beginning in Bram Fischer’s opening address.’84 It would soon become clear that counsel for the accused had won the debates over legal technicalities – important legal technicalities, involving exactly what the accused had done. The admissions by the accused meant that they could not make out a case for acquittal, but it had been apparent since early in the trial that the case was fundamentally not about guilt or innocence but rather about sentences of life or death. The precision of the lawyers for the accused was not likely the basis on which the judge would ultimately make his sentencing decisions, but it did provide the judge with a legal basis on which to ground his sentiments about sentence – if he had any.
Arthur was first up. That Bram Fischer had asked him to argue reflects the confidence that Bram and his other colleagues had in Arthur. His job, as Joffe explains, ‘was to analyse the evidence, all given by police officers, about the 193 acts of sabotage alleged’. George Bizos writes:
His manner was the very antithesis of Yutar’s. Arthur’s height, his demeanour, use of language and logical analysis made him a formidable presence. Vernon [Berrangé] and I would not have resisted the temptation to launch an attack on Yutar for his misrepresentation of the evidence and for gratuitously insulting our clients. Arthur for all practical purposes ignored him.85
‘In his serious, clear, unemotional way’, as Joffe characterises his argument, Arthur acknowledged that ‘Umkhonto members committed acts of sabotage’, but denied ‘that they committed all the acts of sabotage with which they are charged’. Again the judge intervened, but this time to accept Arthur’s argument: ‘Mr Chaskalson,’ he said, ‘there is no need to pursue your argument on this aspect. I accept that there were other organisations committing sabotage at the same time, and choosing the same targets.’ This was very important – in Joffe’s words, ‘in one stroke, a substantial part of the State case fell away’ – because the defence needed to show that the accused had adhered to their policy of choosing targets whose destruction would not endanger human life. Arthur went on to argue that the accused, having adhered to this policy, could not be held responsible for any acts of
