was finished it seemed that, of the 193 acts of sabotage which the State had proved to have happened, only about a dozen had been proved legally against Umkhonto we Sizwe and its High Command. Of these dozen acts, not one involved any danger whatsoever to human life.’86 Arthur deserved his colleagues’ confidence.
Then Bram took over – but not for long. Again Judge De Wet quickly cut in, and again his interventions, though surprising, were welcomed by the defence. Bram began to argue a fundamental point for the accused, that Operation Mayibuye had not been adopted as a plan for action, but De Wet interrupted: ‘I thought I made my attitude clear. I accept no decision or date was fixed upon for guerrilla warfare.’ To the accused and their lawyers, this ‘was the hairline around which the prospect of a death sentence revolved’.87
Bram passed to his second point, that the ANC and Umkhonto we Sizwe were two separate organisations. This point was important, as Joffe explains, ‘for the future of every member of the African National Congress who might ever be charged by the police’ – because if the two organisations were one, then every ANC member was by definition guilty of participation in MK’s campaign of sabotage.88
For the defence, all that was left was argument by Berrangé on behalf of the three accused who seemed to have some chance of acquittal, Bernstein, Kathrada and Mhlaba, and then ‘a few legal arguments by Arthur, Bram and George’. Yutar, in rebuttal, committed further excesses – announcing, contrary to his earlier statement in court, that he ‘now proposed to rely upon certain proclamations’ by the government, which declared the ANC and MK to be one and the same, and ‘retrospective to the beginning of the period covered by the indictment in our case’. But ‘by this stage, it seemed that Mr Justice De Wet had finally had enough. He almost browbeat Yutar into a retreat, and Yutar announced that in view of De Wet’s attitude, he was now “abandoning presumption!”’89
Court was adjourned for three tense weeks while De Wet considered his verdict. Bizos writes: ‘We anticipated that after so lengthy a trial, judgment would take the better part of a day. Judge De Wet dispensed with it in two minutes.’90 De Wet spoke so quietly that many in the courtroom could not hear him, and so briefly that ‘it was all over before most of the people in the court even knew what had happened’.91 He said, in toto:
I have very good reasons for the conclusions to which I have come. I don’t propose to read these reasons. The verdict will be: Nelson Mandela is found guilty on all four counts; Walter Sisulu is found guilty on all four counts; Denis Goldberg is found guilty on all four counts; Govan Mbeki is found guilty on all four counts; Ahmed Kathrada is found guilty on count two and not guilty on counts one, three and four. Lionel Bernstein is found not guilty. He will be discharged. Raymond Mhlaba is found guilty on all four counts; Andrew Mlangeni is found guilty on all four counts; Elias Motsoaledi is found guilty on all four counts. I do not propose to deal with the question of sentence today. My reasons will be made available in a statement. The defence will be given an opportunity to study these reasons and if so required, to address me on the question of sentence. I will deal with the question of sentence tomorrow morning at 10 o’clock.
Now, and abruptly, the case turned to sentencing. Between verdict and sentencing the defence team met with the accused, who remained as adamant in their political approach to the trial as ever. Their intention to press the case on behalf of African politics and humanity remained, and they had made clear that ‘they were not prepared to have any apologies made on their behalf for what they had done, or any suggestion that they would behave themselves better in future’.92 They continued to expect the death penalty, as they had from the beginning. Nelson Mandela, though he had spent part of the three-week adjournment taking exams for his LLB at London University – exams he passed – recalled:
I was prepared for the death penalty. To be truly prepared for something, one must actually expect it. One cannot be prepared for something while secretly believing it will not happen. We were all prepared, not because we were brave but because we were realistic. I thought of the line from Shakespeare: ‘Be absolute for death; for either death or life shall be the sweeter.’93
Meeting with their lawyers, the accused wanted to know what the procedure would be if the judge sentenced them to death, and the lawyers explained that the judge would ask Mandela, as the first accused, ‘“Have you any reason to advance why the death sentence should not be passed?” Nelson decided that he would have a lot to say’, on the lines that ‘if they thought by sentencing him to death they would oust the liberation movement, they were wrong.’ His lawyers warned him that a speech like that ‘was hardly designed to facilitate an appeal’, and he explained that he, Walter Sisulu and Govan Mbeki had already decided that they would not appeal a death sentence, because doing so would undercut their effort to inspire the movement against apartheid. George Bizos concluded that the accused were preparing ‘pleas in aggravation of sentence!’94
The defence team decided to present one witness in mitigation – Alan Paton, the distinguished author of Cry, the Beloved Country and a resolute opponent of apartheid as a leader of the Liberal Party. Cross-examination of mitigation witnesses was rare, but Yutar, as we’ve seen, chose to launch a harsh attack on Paton on cross-examination. Joffe thought that De Wet ‘appeared to be enjoying Paton’s discomfiture’, though Bizos remembers him as simply indifferent.95 Then advocate Harold Hanson, whom the defence team had brought in to argue the case for mitigation – apparently at least in part because Bram was so distressed by the prospect of death sentences for ‘the leaders of the African people, his comrades and friends’96 – made his presentation. Joffe describes the scene:
Mr Justice de Wet scarcely appeared to be listening. It seemed likely that he had made up his mind on sentence, and that all Hanson’s eloquence was merely delaying his opportunity to state his mind. As Hanson finished, Yutar rose to his feet to give his ego its last little puff before his hour of glory ended. He would not address the court on sentence, he said, but he had to affirm publicly his faith in the fairness of the court.97
Denis Goldberg watched De Wet during Hanson’s speech, and saw him ‘lean back, the breathing chest under the robes and the white-fronted dicky arcing up and down in accentuated impatience’.98 As it turned out, however, De Wet was not impatient to impose death; something in the case had indeed affected him and his feelings about the proper sentence.
Then De Wet spoke. After expressing briefly his scepticism ‘that the motives of the accused were as altruistic as they wish the court to believe’, he said:
The function of this court, as is the function of the court in any other country, is to enforce law and order, and to enforce the laws of the State within which it functions. The crime of which the accused have been convicted, that is the main crime, the crime of conspiracy, is in essence one of High Treason. The State has decided not to charge the crime in this form.
Bearing this in mind and giving the matter very serious consideration, I have decided not to impose the supreme penalty, which in a case like this would usually be the proper penalty for the crime, but consistent with my duty that is the only leniency I can show. The sentence in the case of all the accused will be one of life imprisonment. In the case of the accused who have been convicted on more than one count, these counts will be taken together for the purpose of sentence.99
The acoustics in the courtroom were so poor that many in the audience had not heard all of what De Wet said. On one account, Denis Goldberg’s mother asked what the sentence was, and Denis answered: ‘Life! Isn’t life wonderful?’100 Nelson Mandela remembered Goldberg’s words slightly differently: ‘“Life!” he yelled back, grinning. “Life! To live!”’101 The accused were ecstatic in that moment. ‘Life imprisonment seemed almost like an acquittal. Somehow, they felt, they had won.’102 Their lawyers were more sombre,
