have hoped to achieve. But there was nothing to cheer us in the fact that, though our friends were going to live, they would live out their lives in a South African jail.’103 The bond between the accused and their lawyers had now become profound.
Yet this is not quite the full story. It turns out that in the days preceding De Wet’s decision, hints of what it would be – and more than hints – had been communicated to the defence team. George Bizos received one, from Leslie Minford, the British Consul General. According to Fischer’s biographer: ‘[George Bizos] was at a party the week before the verdict, and there had seen Minford, the British consul-general. Minford had said to him, “George, there won’t be a death sentence, and Rusty Bernstein will be acquitted.” Bizos told Bram, who asked him how he knew. Bizos said, “Minford was drunk, and swore me to secrecy.”’104 But Bizos himself, in his autobiography (published after Clingman’s biography of Fischer), tells this story somewhat differently:
Shortly before my meeting with Paton I visited the Minfords. As I was leaving Leslie put his arm around my shoulder and said, ‘George, there won’t be a death sentence.’ I did not ask him how he knew. For one thing, he had downed a number of whiskies. Certainly I felt I could not rely on the information, nor could I tell the team or our anxious clients. With the publication of Anthony Sampson’s biography of Nelson Mandela in 1999, I read that Minford was thought to have had intelligence links and may have had reliable information about the case.105
In any case, this was not the only indication. Another was much more clear-cut. As Clingman reports it, Harold Hanson, the advocate who was brought on to argue mitigation, went to see Justice De Wet before the argument.
When he returned he said to Arthur Chaskalson, ‘He’s not going to impose the death sentence.’ Chaskalson asked, ‘How do you know?’ Hanson swore him to secrecy, and then said, ‘I asked him.’ Hanson had enquired whether De Wet was considering the death penalty, because if he was it might affect the nature of his argument. And De Wet had simply said, ‘No.’106
The Hanson story is unequivocal. De Wet had made up his mind before the sentencing hearing, and was prepared to convey that to a lawyer for the accused. It seems remarkable that De Wet did so – judges do not normally announce their decisions in private conversation with a lawyer for just one side – and Joel recalls that Arthur felt that integrity barred him from passing the story on to Joel at the time.107 Again the demands of legal ethics had arisen, and it seems clear that in this most fraught of trials even the judge had departed to some extent from what normal ethics would have required. For his part Arthur continued to navigate the ethical shoals of the case, this time avoiding participation in the ethical compromise that the judge himself had undertaken.
But this story does not tell us how De Wet came to make his decision – whether it was the result of the testimony of the accused and the advocacy of their counsel, or of some external force. If the motivation was counsel’s skilful advocacy, this suggests the continuing force of legal rules and reasoning even in the midst of a political trial in apartheid South Africa. If, on the other hand, the source of the decision was some external force, whether from the South African government or from other countries, this suggests that the decision was indeed a breach of legal integrity, as much as it was a welcome choice on the true merits.
Or both factors – legal and political – may have been at work. Mac Maharaj, himself an important ANC leader, writes in his preface to Joffe’s book that ‘Joffe may be right that Mr Justice De Wet was not the kind of person who would countenance “direct … or even indirect political intervention in his domain”. But that does not exclude the likelihood that he may have licked his finger and held it up to determine whether there was a breeze and its direction.’108 In an interview after the book’s publication, Joffe speculated that De Wet might have been of two minds as a result of seeing the accused, whose self-interest he criticised in his brief sentencing statement, and that the government might have let him know that it was under a lot of pressure.109 Maharaj in his foreword goes on to suggest, similarly, that the British and American governments may have offered ‘gentle allusions against the death penalty’ that ‘tipped the balance in favour of the court’s decision’.110 Perhaps De Wet, despite his sensitivity to intrusion, was not immune to this sort of ‘gentle allusion’; he was, after all, willing to tell Harold Hanson explicitly that he was not considering the death penalty, and perhaps he was willing to have other conversations on the subject as well.
If outside influence was involved, it is not simple to determine whose outside influence it was or how it was transmitted. R.W. Johnson, reviewing Joffe’s book, asserts:
It is … most unlikely that the domineering Minister of Justice, John Vorster, would have left such a key decision to De Wet … It seems far more likely that Vorster, probably after discussion with Hendrik Verwoerd, the prime minister, decided it would not be politic to behead African nationalism of its entire leadership … Vorster had doubtless told Van den Bergh [the head of police intelligence] he didn’t want any death sentences, and this would have been passed on to Yutar and so to De Wet.111
It is indeed striking that Yutar did not ask for the death penalty, but Yutar also did not ask for life; he chose not to make any sentencing request at all. And even if Vorster did not want to leave such a key decision to De Wet, it was De Wet to whom the law gave the power to make the choice.
Why didn’t Yutar ask for the death penalty? R.W. Johnson attributes Yutar’s action to instructions from Van den Bergh, but there appears to be no direct evidence to confirm this inference. Anthony Sampson writes that in 1964 ‘the British Embassy in Pretoria reported to London that … van den Bergh … did not expect death sentences, and that Yutar would not ask for them’.112 While Van den Bergh may well have determined how Yutar would conduct the case, Yutar himself came to believe, or assert,
that while he had carried out his professional duty by prosecuting the defendants, he was also responsible for saving their lives by insisting they be charged with sabotage rather than treason. Both charges carried the possibility of the death penalty, but Percy insisted he knew by instinct and long practice that the presiding judge would not condemn the accused to hang for the former charge, only for the latter. And indeed, in sentencing Mandela, Sisulu and the others to life imprisonment, Justice Quartus de Wet mentioned the charge and stated that he was ‘bearing this in mind’.113
But Yutar’s conduct of the trial as a whole makes it hard to credit these professions of benign intent, and indeed Frankel found ‘much evidence’ that Yutar was not motivated by mercy in making this decision.114
Mandela himself hardly seemed to believe that Yutar was seeking to preserve his life at the time the trial was running. He writes in his unpublished autobiography that ‘The State had told defence lawyers that they would ask for the death sentence’,115 and Anthony Sampson in his authorised biography of Mandela says that ‘Fischer warned him that the prosecution would ask for death sentences’116 – though I have not seen this assertion made by any of the other defence lawyers. Even at the sentencing hearing itself, Mandela thought he was about to hear his death sentence pronounced.117 He also writes that the Minister of Justice, B.J. Vorster,
had told Bob Hepple’s father that General Smuts, the Prime Minister during the Second World War, had made the mistake of not hanging him and others who committed a similar offence as ours during the Second World War, and that the Nat[ional Party] government would not make such a mistake. He bluntly told Alex Hepple even before the proceedings started (?) that they would hang us. Why did they change their minds? (check).118
Though Mandela’s account – in which the ‘(?)’ and ‘(check)’ appear – is obviously somewhat uncertain, Bob Hepple (the son of Alex Hepple) confirms it in his own memoir of those
