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 adroit testimony by the accused who took the witness stand, the accused’s version prevailed. The trial judge accepted that Operation Mayibuye had never become operational.
The trial offered the accused an important opportunity. Most of them had, like Mandela, long been banned from public speaking and from being quoted in the media. Now the courtroom confrontation gave them a platform from which to voice their principled opposition to apartheid. And the newspapers were entitled to report on courtroom proceedings.
In particular, Nelson Mandela’s statement from the dock rang across the world. It became a classic enunciation of a people’s claim to dignity and freedom. He explained his commitment to non-racial principles. He emphasised his support for independent institutions and the rule of law. And he detailed the ravages apartheid’s unjust racial laws inflicted on black South Africans.
He ended by explaining that the struggle of the African people was a national struggle, ‘inspired by their own suffering and their own experience’. It was, he said, ‘a struggle for the right to live’.
‘During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.’
Judge-President De Wet eventually convicted eight accused in the Rivonia Trial of statutory sabotage – the equivalent of treason. They were, in the order in which the judge announced his verdict, Mandela, Sisulu, Goldberg, Mbeki, Kathrada, Mhlaba, Mlangeni and Motsoaledi. Only Bernstein was acquitted.
Mandela was prepared to face death for opposing apartheid, but that price was not exacted of him. Instead of the death sentences many expected, the trial judge on 12 June 1964 imposed imprisonment: life sentences. This was imprisonment for life – but, it was for life. The accused all left prison, years later, living. All eight lived to see democracy established in South Africa. One of them became democratic South Africa’s first President.
XI: Law and the struggle for justice under apartheid – the legacy for democracy
Soon after the Rivonia Trial ended, Bram Fischer, who had led the defence, was himself arrested. Released on bail, he obtained the court’s permission to go abroad to argue an appeal for a mining corporation before the Privy Council in London. He returned. But then, on 25 January 1965, defying his bail conditions, he went underground, eluding the courtroom, to continue his anti-apartheid work.
Fischer was eventually re-arrested and he was put on trial. He was convicted of conspiring to commit sabotage. He, too, received a sentence of life imprisonment but, unlike the Rivonia trialists, he did not outlive the system that imprisoned him. He died in 1974. When he was already severely stricken by cancer, and close to death, the prison authorities released him. He died a few weeks later in the home of his brother in Bloemfontein.
Bram Fischer’s life as a practising lawyer illuminates the complexity of the apartheid legal system. He thought it worth sustaining the struggle for justice through the law, and treasured his position as legal counsel. When he estreated his bail, the Bar Council, which he himself had previously chaired, hastily brought proceedings to strike his name from the roll of advocates. Fischer knew that more was required to attain a just system than only legal work. Unlike many other lawyers, including me, he sacrificed his legal practice, his home and his comforts to devote his life unconditionally to the struggle