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 sabotage, even if committed by members of Umkhonto, that violated this policy. And then he analysed each of the 193 acts of sabotage. ‘By the time it 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
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