guilty and discharged.
Mandela recounts that when Judge Rumpff finished delivering the court’s verdict, ‘The spectators’ gallery erupted in cheers. We stood and hugged each other, and waved to the happy courtroom. All of us then paraded into the courtyard, smiling, laughing, crying. The crowd yelled and chanted as we emerged.’
The most massive legal contest in South African history had ended in disaster for the prosecution. The accused and their lawyers had torn the state’s accusations to shreds. The attempt to use treason charges to stifle extra-parliamentary anti-apartheid opposition had been calamitously thrown out of court. As Mandela recounted, ‘After more than four years in court and dozens of prosecutors, thousands of documents and tens of thousands of pages of testimony, the state had failed in its mission. The verdict was an embarrassment to the government, both at home and abroad.’ Yet, he reflected, ‘the result only embittered the state against us even further. The lesson they took away was not that we had legitimate grievances but that they needed to be far more ruthless.’
And Mandela did not regard the verdict as a vindication of the legal system – or as evidence that a black man could get a fair trial in a white man’s court. His own assessment was much more constrained. ‘It was,’ he said, ‘the right verdict and a just one, but it was largely as a result of a superior defence team and the fair-mindedness of the panel of these particular judges.’
X: Law and armed resistance to apartheid – the Rivonia Trial
Mandela was correct when he had predicted that enforcement of apartheid would take a ruthless turn after the Treason Trial acquittals. Government pushed even tougher statutes through Parliament to make it easier for prosecutors to secure convictions against extra-parliamentary apartheid opponents.
Without a bill of rights, the courts had no power to question what the legislature enacted. Parliament was supreme, and courts had to enforce its will – or that, at least, was the doctrine most white judges accepted under apartheid.
A brave minority on the Bench thought differently. They fought to find ways to uphold long-standing Roman and Roman-Dutch legal precepts. These included equal treatment, unless a statute expressly commanded otherwise, and elementary procedural fairness. They fought for these to prevail, even in the face of rancid apartheid legislation. And, indeed, occasionally the laws Parliament enacted did leave enough room for determined lawyers, and fair-minded judges, to try to secure just outcomes. In addition, fair procedures could generally still be demanded in the courtrooms of apartheid.
Only months after the treason acquittals, events occurred that would put those courtroom processes to further test. On 16 December 1961 Mandela and other leaders founded the ANC’s armed wing. They called it uMkhonto weSizwe (MK), the ‘Spear of the Nation’.
The armed struggle had begun.
But on a wintry day just a year and half later, on 11 July 1963, most of the high command of the ANC leadership was arrested in a dramatic police raid on a secret hideout at Rivonia, north of Johannesburg. During the raid, the police arrested seven people. They also seized a crucial six-page document headed Operation Mayibuye (‘Let Africa come back’). The document had been drafted by the ANC high command, excluding Mandela, who had previously been arrested. He was already in the Old Fort prison in Johannesburg, serving a sentence of five years’ imprisonment. This was for incitement and for leaving the country illegally, when he received military training in March 1962 from the Algerian National Liberation Front.
When those arrested at Rivonia fifteen months later were put on trial, Mandela joined them in the dock. Others on trial included Govan Mbeki, Raymond Mhlaba, Walter Sisulu, Ahmed Kathrada, Elias Motsoaledi, Denis Goldberg, Lionel Rusty Bernstein and Andrew Mlangeni.
But the prosecutors had learnt from the Treason Trial fiasco. This time, they were careful to avoid the pitfalls of bringing charges under the common law. Instead, they adopted a much safer ploy. They used the newly enacted 1962 Sabotage Act against the accused. The charge sheet confronted the accused with charges of statutory sabotage and conspiracy. The statutory charges were no less grave than those under the common law. They too carried the death penalty. The crucial difference was that the statute made the prosecution’s task easier, by providing important procedural help in proving vital elements of the charges against the accused.
As in the Defiance Campaign prosecution twelve years before, the lead counsel for the accused was Bram Fischer. By now, alongside a busy commercial practice, representing corporate giants like the Anglo American gold-mining corporation, Fischer was also an underground leader of the Communist Party. And he was still deeply involved in anti-apartheid work. It was by simple happenstance that he had not been at the Rivonia hideout when the security police arrested the ANC leadership there.
For Bram Fischer, defending the Rivonia accused entailed taking extraordinary risks. While defending them as an advocate, he was also engaged in a high-stakes double game. He was an officer of the court, with a duty to it and to his clients, but he was also an underground leader in the anti-apartheid opposition, with a commitment to securing a just society. During the trial, Fischer the advocate obtained crucial documents from the state. Fischer the underground activist then made these documents available to fellow underground activists to use in their struggle.
Presiding over the Rivonia accused was Quartus de Wet, now Judge-President of the Transvaal. He was the judge who ten years earlier had rebuked a magistrate for disrespecting Mandela. Of him, Joel Joffe, the attorney for Mandela and the other accused in the Rivonia Trial, said he ‘did not have the reputation of being a puppet of the Nationalist Government who would take orders directly from politicians’. While the accused and their lawyers felt that they could have done much better, ‘we could also have done much worse’.
Before the trial started, the defence lawyers went on the attack. They applied for the dismissal of the indictment on the grounds that it did not set out clearly enough the precise charges the state was levelling against the accused. Their strategy succeeded. Judge-President De Wet handed the defence a symbolic victory – he quashed the indictment. This was a slap in the face for the prosecution. It meant it had to go back to the drawing board to reformulate the charges. It had to set them out with more precision and clarity. The victory was short-lived. The prosecution fixed its sloppy work, and was allowed to proceed. But the judge’s ruling was important. It showed that he was not prepared to give the prosecutors a free ride. Procedural justice, by his lights, would prevail in his court.
Operation Mayibuye detailed ambitious plans for military insurrection. In his autobiography, Nelson Mandela describes the document as ‘the keystone of the state’s case’ against the Rivonia accused. It sketched out in general form, he explained, ‘the plan for a possible commencement of guerrilla operations, and how it might spark a mass armed uprising’ against the apartheid government.
The state argued that the ANC executive, including Mandela, had endorsed and approved Operation Mayibuye, and that MK had adopted it as the operating model for armed revolution. As Joel Joffe, the Rivonia accused’s attorney, explained, this meant that ‘the lives of the accused were at stake. The state’s case alleged that they had already embarked on the organisation of armed insurrection and guerrilla warfare’, involving foreign military intervention and general mayhem. If the court accepted this, ‘the peril to the lives of the accused was real and grave’.
The accused denied that Operation Mayibuye was already operational. They contended the high command had never formally adopted it. It was, they said, still being considered as a possible plan of action.
The accused made it plain to their legal team, which included Arthur Chaskalson, that they would never deny membership of the ANC or the SA Communist Party. Nor would they disavow the ideals and aims of the organisations. Through skilful cross-examination of the police witnesses, and
