him: ‘All of you can expect to be sentenced to death.’ Meanwhile, according to Hepple, B.J. Vorster told his father ‘that the prosecution would be asking for the death penalty for those found guilty’.119 All of which makes the question Mandela poses – ‘Why did they change their minds?’ – a key one.
Certainly the defence welcomed the signs of worldwide pressure. Stephen Clingman recounts a visit by Bram Fischer to George Bizos’s house
early one morning in October 1963 … George, also an early riser, was watering his renowned vegetable garden at dawn. Bram had a copy of the Rand Daily Mail in his hand, the headline of which announced that the Security Council of the United Nations had called for the release of the Rivonia trialists. Bram knew George was going over to see the accused later that day: ‘Take this to Pretoria,’ he told George. ‘They daren’t hang them after this’ – and then, with even deeper passion – ‘they daren’t hang them!’120
Maharaj also mentions ‘the protests within South Africa and the condemnations and representations made by the outside world including governments and the United Nations’.121 But in the end no one could have counted on international pressure, public or (diplomatically) private, or even South African government signalling, to guide the judge’s decision if the advocacy by the defence counsel, and the testimony by the accused, had not shaped the judge’s understanding of every aspect of the case. ‘At the heart of the “the battle to prevent the death sentence”’, as Maharaj writes, ‘was the strategy of the accused, the dignity and forthright way in which they gave their evidence, withstood cross-examination and championed the cause of freedom and democracy from within the courtroom and the magnificent performance of the defence team led by Bram Fischer’.122
The ramifications of the Rivonia trial would echo through the decades to come. In part, that was so because the trial did not, as the state had hoped, remove the accused from the political scene. Most strikingly, the importance of the accused would grow over the years until the state would find itself dependent on Mandela and his comrades to guide the country to a peaceful transition from apartheid – a transition in which Arthur would play a prominent role. Arthur would remain connected with the accused, assisting them in litigation and in politics and then, after the National Party abandoned its defence of apartheid in 1990, playing an active part in the constitutional negotiations and ultimately taking on, at Nelson Mandela’s request, the leadership of the new Constitutional Court.
At the same time, the trial cemented the personal relations between the lawyers, relations that became an important part of their lives. Arthur and Vernon Berrangé became close friends. So too did Arthur and George Bizos, and Arthur’s ties to Joel Joffe, already profound, no doubt grew deeper – and since George and Joel were young men, these bonds would last the rest of Arthur’s life. Arthur’s relationship to Bram Fischer would not last so long, for Fischer too would end up in prison and not live long, but this relationship, and the relationship with Fischer’s family as well, became a critical foundation for the life Arthur and Lorraine would live in the coming years.
Moreover, for Arthur in particular the Rivonia trial very likely played a role in shaping the legal practice that he pursued over the next decades. This had been a case in which ethical issues played a large role throughout, and it seems probable that the balancing of strict legal rules against broader moral principles remained a concern of Arthur’s over the years. The judgements Arthur reached about this balance in the Rivonia case, and in the litigation about Fischer himself that followed, became a part of Arthur’s ongoing reflection on these issues, and thus a part of his development of a practice that would influence South African public interest law as a whole in the years to come.
*
Let us begin with the accused. As the old joke has it, the lawyers went home, and the convicted men went to prison. Even Rusty Bernstein, acquitted of sabotage, was immediately rearrested in the courtroom, and enmeshed in new legal proceedings. Though he was granted bail, and so was free for the first time since being arrested at Lilliesleaf farm, he was pessimistic:
Whatever the details of the case against me, I can see no chance that I will not be convicted. The evidence from Rivonia alone can convict me of communicating with other banned and listed people; of attending a gathering; of taking part in the activities of banned organisations; and possibly of leaving the Johannesburg Magisterial District – no one knows for sure where the boundary is or whether Lilliesleaf is inside or outside. Each offence can carry a ten-year sentence.1
He did not stay for his trial, nor did his wife Hilda stay for the state to prosecute her. They slipped illegally across the South African border into Bechuanaland (now Botswana) and, after further harrowing travel, arrived in London. They would not return to South Africa until the first post-apartheid elections in 1994, when they joined the other Rivonia accused (except Elias Motsoaledi, who ‘survived twenty-seven years on Robben Island and died of heart disease only days before this moment of achievement’) in Pretoria to see Nelson Mandela sworn in as South Africa’s President.2
Of those who were convicted, one of the loneliest in prison may have been Denis Goldberg. Ironically, this was because he was white. Apartheid applied even to convicted prisoners, and so Denis was held in Pretoria Central, along with other white political prisoners, but far from his black comrades on Robben Island. Denis’s wife Esmé was barred from visiting him during most of his years in prison; his children were not allowed to visit at all for the first eight years, and then were allowed to come ‘every second year’. Fortunately, and surprisingly, Arthur’s friend Hillary Kuny was permitted to become a regular visitor, and those visits sustained him. In 1982, she would draft a memorandum to the authorities that requested his release, and he would be freed in 1985, based on a promise to abstain from further violence against the state. Denis, as convinced an opponent of apartheid then as before, felt he could make this promise because there would be other ways to fight apartheid, and indeed he became an active part of the European anti-apartheid movement.3 He returned to live in South Africa after the end of apartheid, worked for some years as an adviser to the Ministry of Water Affairs and Forestry (he was, after all, an engineer), and in 2009 received the National Order of Luthuli (Silver) in recognition of his role in the liberation struggle.
The other accused, six Africans and one Indian, were imprisoned on Robben Island. Their incarceration there was meant to be harsh, and for some years it was. But the Rivonia accused and the other political prisoners who joined them ‘on the Island’ decided that their struggle continued even in prison. ‘We would fight inside as we had fought outside,’ Mandela wrote. Over the years they largely defeated their captors’ rule. They were not free, but Nelson Mandela would write that ‘in early 1977, the authorities announced the end of manual labour. Instead, we could spend our days in our section. They arranged some type of work for us to do in the courtyard, but it was merely a fig leaf to hide their capitulation.’4
Over the years, new generations of political prisoners would arrive on the Island, reflecting the resurgent struggle against apartheid. Old and new encountered each other. For some, such as Dikgang Moseneke – who was sent to the Island at the age of 14, and who would later become the Deputy Chief Justice of South Africa – their years on Robben Island would be among the most significant of their lives.
Meanwhile, the state became, increasingly, the prisoner of the accused. Mandela has described the gradual initiation of negotiations between himself and his captors in
