The Rivonia Trial: How Did Mandela Escape Hanging?
On July 11, 1963, the South African Security Police conducted a raid on Liliesleaf Farm, in the Johannesburg suburbs, in order to capture the high command of Umkhonto we Sizwe, the military branch of the Apartheid resistance movement. What they discovered was Operation Mayibuye, a plan on the possibilities of carrying out guerrilla war against the South African state. The men arrested there, including Walter Sisulu, Govan Mbeki, Ahmed Kathrada, Denis Goldberg, Raymond Mhlaba, and Leonard Bernstein, later joined by James Kantor, who was eventually released, and also Elias Motsoaledi, Andrew Mlangeni, and Nelson Mandela, who were already imprisoned at the time, would become the defendants in what would become one of the most important and pivotal trials in South African history. The official name of this trial was the State v. Nelson Mandela and Others, but it became known by the simple name of the location of Liliesleaf: Rivonia.
By all accounts, the trial should have been a simple affair. The state had large amounts of evidence, a biased legal system, and the primary leaders of their main enemy in custody. They could very realistically have been quickly tried for treason and hanged, but that did not happen. Why?
The Political Standing of the Accused in the Country; and the choice of the Defence Team
The state policy of Apartheid had always been inherently unfair, but, in the years leading up to the trial, this unfairness escalated dramatically. In 1962 and 1963, the government passed a multitude of laws intended to suppress, restrict, and quash all antigovernment resistance. Some of these laws included the 90-Day Detention Law, which allowed ‘detainments’ to be made without a given cause, and for prisoners to be held for up to 90 days, again without a stated cause. At the end of the period, the police could simply re-arrest the individual, so the law in effect allowed for indefinite jailing and, often, torture of political prisoners without cause.[i] This would come into play in significant fashion later on, during the trial. Two other important laws to the same end were the Suppression of Communism Act and the Sabotage Act, both of which had language that was so incredibly vague as to make it possible to arrest someone for sabotage if they threw a rock with political motives. With this legislation buttressing their efforts, the police had quite an advantage over the Rivonia men. All of them were politically active members of the African National Congress, the Communist Party, or both, which were also legally banned organizations. Mandela, Sisulu, and Mbeki, in particular, were a part of the ANC’s inner leadership, as well as Umkhonto. With this in hand, as well as documentation of Operation Mayibuye, each of the accused were at a serious handicap. In order to perhaps tip the scales in their favor, a defense team made up of some of the brightest minds South African liberalism had to offer was created. The first lawyer on the case was Joel Joffe, who was approached by Bernstein’s wife and, indeed, the wives of many of the accused. He was joined by Abram ‘Bram’ Fischer, a self-avowed Communist and the same man who led the defense of the historic Treason Trial of the late 1950s. Fischer was to become the head of the defense. There was also Arthur Chaskalson, an extremely professional and duty-bound lawyer, George Bizos, who, according to Joffe, “had handled more political cases than, I think, any other lawyer in Johannesburg,”[ii] and, finally, Vernon Berrange, who had also been present at the Treason Trial and was a very careful and capable cross-examiner.
It is one thing to attempt to mount a defense with very low odds of success. It is another thing entirely to attempt to mount a defense when the state actively conspires against one’s efforts, but that is indeed what occurred in this case. The defense attorneys had extreme difficulty meeting with their clients. Part of this stemmed from the fact that some, such as Goldberg and Bernstein, were white, whereas the rest were African or, in Kathrada’s case, Indian. Thus, the state was extremely hesitant to allow them all to be in the same room together, to which Joffe claimed that “it would be impossible for us to defend them if we had to see them separately.”[iii] Secondly, when the attorneys were able to see all of their clients, it was within the jail itself, which was crawling with guards sympathetic to the state, not to mention the fact that it was bugged. Finally, the prosecution did not disclose the indictment to the defense until the day the trial began, which brings us to the leader of the prosecution team, Dr. Percy Yutar.
The Charges and the Case Made by the Prosecution, Including the Reliability of State Witnesses
Yutar was not a large man, in stature or conscience. His flair for the theatrical, ideological bigotry, and personal ambition would turn the proceedings into an unorthodox affair. This was evidenced by his attempt to broadcast the trial live on national television,[iv] which was not only unorthodox, but also petty. His initial indictment in the case was so full of vagueness and rhetoric that it was actually thrown out by the judge, Quartus de Wet, in a move of fairness to the defense. Over the course of the case, de Wet would prove to be an enigmatic figure, sometimes siding with the defense, and at other times allowing Yutar carte blanche to say whatever he wanted. When the court reconvened several weeks later, the official indictment and charges became known. The accused were charged with counts of sabotage and conspiracy, with the key points that they were accused of recruitment for the purposes of violent revolution and soliciting outside aid to that end, and the principle evidence tying it all together being the draft of Operation Mayibuye found on the scene. The interesting aspect to this is that they were not charged with treason, as might be expected. While the consequences of this decision would not become clear until the end of the trial, Joffe and Mandela, among others, agree that the reasoning at the time was simple. Treason, a charge of the utmost severity, had different requirements for conviction than sabotage, mainly that each instance of the act required two witnesses, whereas one was usually enough in other situations. In a treason trial, the prosecution also tends to be under the most pressure to prove guilt, so, in charging the Rivonia trialists with sabotage, the state put the onus squarely on them to prove innocence. Perhaps most importantly, a treason trial required an extended preparatory examination, which would only serve to aid the defense.[v]
In response to these charges, each of the accused made a move that was very telling of their character and motivations. When asked to plead, Mandela stated “My lord, it is not I, but the government that should be in the dock. I plead not guilty.” Sisulu followed this pattern by claiming that “The government is responsible for what has happened in this country. I plead not guilty.”[vi] This exemplified the attitude of all of the accused. They would not be defending their actions so much as their ideals. Had Yutar been able to pick up on this, he could have perhaps led a more effective case. However, he never took the time to understand the accused, which became evident as the case began in earnest.
In order to prove his claims that the accused were fomenting a revolution, Yutar planned to call many witnesses, 173 of them, with the ‘star’ being Bruno Mtolo, an expert saboteur and formerly a member of Umkhonto. While Mtolo was clearly cooperating with the police in a bid for personal gain, many of the witnesses called were not, and many of them were being held in 90-day detention at the time, isolated and abused. Such conditions are hardly conducive to accurate testimony and some, like Thomas Mashifane, who worked at Liliesleaf, were viciously beaten while in custody. This testimony actually may have helped the defense as, during his time in the stand, Mashifane asked “I just want to know why I should be assaulted like that when I was not committing any offence…a man speaks better when he has not been hit.”[vii] When the defense complained about the state of the witnesses, Yutar claimed that they were not being detained but were under police protection, which is as bold of a euphemism as has ever been stated in a court of law. Of the witnesses that cooperated with the state, many were rather blatantly being coached as their stories were full of holes and, sometimes, outright lies. For example, in his statement, Mtolo claimed that Mandela had instructed the members of the Natal branch of Umkhonto on being “good communists,” in a bid meant to “link me (Mandela) and MK to the Communist Party.”[viii]
Mandela’s Statement from the Dock
In February of 1964, when the defense got the chance to plead their case, Yutar, judging by the mountain of papers in front of him, was very eager to cross-examine the first of the accused, Mr. Nelson R. Mandela. He would be disappointed, however, as Mandela chose not to testify in the stand. There were two reasons for this. A witness is only able to respond to the questions given to him, which the defense felt would stunt Mandela’s considerable effectiveness as an orator. Secondly, it was the intent of the defendants from the beginning to use the case as a platform for their grievances. What better way to do that than using a statement from the dock? The speech would not be able to be used to much legal effect, but Mandela had conceded that, after he said what he had to say, he would undoubtedly be found guilty anyway, so he felt no hesitation.
As expected, Yutar was absolutely beside himself. In what Joffe refers to as his “crisis call,” a distinctive falsetto, he voiced his protest: “My lord, a statement from the dock does not carry the same weight as evidence under oath.” Justice de Wet was not impressed, stating that “I think, Dr. Yutar, that counsel for the defense have sufficient experience to advise their clients without your assistance.”[ix] Fischer then called accused No.1, Nelson Mandela, to read a statement.
He started slowly and deliberately, pausing strategically to let his audience absorb the gravity of his words. In the speech, Mandela aimed to explain three things: first, the true nature and goals of his struggle, second, the ANC’s relationship with communism, and third, the grievances of his people. When he opened, the first thing he did was to basically admit that he was guilty. He told the court that he himself had created Umkhonto, and that they were responsible for sabotage. This is important because, in admitting all of this, he took all of the teeth out of the prosecution’s case. The main goal of the prosecutor was to prove that Mandela committed and lied about sabotage, but, by admitting it openly, Mandela made sure that the information came out because he wanted it to, not because Yutar had pried it out of him. Mandela proceeded to explain his childhood and motivations for entering the ANC, and that his goal was not to destroy the state, but simply to achieve “freedom and fulfillment for African people in their own land.” He proceeded to tackle the issue of communism. If there was one type of person that the average Afrikaner hated, it was a communist. To that effect, the state had attempted time and again to prove that the ANC was run by communists and pointed to influential members of both ideologies such as Joe Slovo. Mandela concisely dismantled this fallacy. He claimed that he never espoused an economic ideology, that he had no issue with capitalism, and that he thought that British capitalism was perhaps the best system in the world. In essence, he stated that communism is an economic ideal. Mandela, however, preached for political ideals and for equal representation under the law. Simply put, communism is concerned with economic identity, while the ANC is concerned with political identity. That being said, the ANC often worked with members of the Communist Party simply because they were the only ones who would help.
From this, he moved on to his main argument, that of South Africa’s unequal system. After backing up this claim with statistics on education, income, wages, and more, he concluded this line of thought by stating that “above all we want equal political rights, because without them our disabilities will be permanent.” After this, he turned, stared the judge directly in the eyes and told him that he had struggled all his life against both white and black domination, and that his ideal was a nonracial society predicated on democracy and freedom. “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.”[x] De Wet never looked him in the eye again. This is a speech that has been quoted time and again, and for good reason. In saying it, Mandela is admitting that he did everything that the state said he did, and further, in his last sentence, he essentially invites the death penalty, daring the state to hang him and see what happens. The speech took four hours and, after it was over, de Wet hurriedly tried to call up the next defendant: Walter Sisulu.
The Evidence and Cross-Examination of Goldberg, Sisulu, and Kathrada
The defense, in their case, had four main goals. They aimed to explain that the ANC and Umkhonto were separate organizations, that the ANC did not take orders from the communists, that several of the accused were not members of Umkhonto, and that Mayibuye had not been adopted. To do this, they brought Sisulu to the stand. If there is any case to prove that education is not everything, then Walter Sisulu is that case. Having served as the Secretary General of the ANC, he knew the organization inside and out and his meager six years of schooling belied his vast intelligence. He was also opposed to Operation Mayibuye, so any commentary on that would not be useful to the prosecution. Thus, when Yutar, holder of a doctorate in law, began a cross examination that was intended for Nelson Mandela, he was in for a rather rude awakening. Yutar made the mistake of challenging Sisulu on politics, trying to get him to admit that Umkhonto had caused several deaths, and even going so far as to attempt to extract information about other members of the organization. Walter deflected every attack, answering straightly and succinctly, explaining that the leadership of Umkhonto took many precautions to not harm civilians and to maintain independence from the ANC, only losing his temper when asked about his own personal experience. “They arrested my wife; they arrested my son…I have been persecuted by the police…In 1962 I was arrested six times…I wish you were in the position of an African.”[xi] Walter’s ability to remain honest without revealing any incriminating information wound up turning the tables quite severely on Yutar, who had not been able to get anything of use from him after five days of cross-examination.
Next it was Ahmed ‘Kathy’ Kathrada’s turn to be a witness. Kathrada had been a key player in both the Indian civil rights movement and the ANC, but his relationship to the Rivonia sabotage evidence was scant at best. The main reason that he was at the trial at all was simply because he had been present at the farm. There was a realistic chance that he would actually be acquitted. As such, a great deal of Yutar’s cross-examination was targeted at the disclosure of information about Umkhonto for the benefit of the police. However, in a move of solidarity that was discovered with every defendant, Kathrada, when confronted with the question, answered: “If I knew anything about the Umkhonto I would not tell you. If the fact of it was to implicate anybody, I would not tell you.”[xii] After achieving freedom, Kathrada would later admit that he was a part of Umkhonto from the start, but he was not about to tell the prosecutor that.
Denis Goldberg was somewhat of a different case than the others. He was from Cape Town, not Johannesburg, he was white, and he was not involved in the leadership of the ANC. He was, however, an engineer who was working for Umkhonto to make weapons. As such, the state probably had more physical evidence on him than any of the others. His cross-examination was more of a smear campaign than anything else and little of use was gained from it, as the state had all that they needed to convict him anyway and, in the words of the defense, “most of the evidence was completely factual and most of it had gone unchallenged by us.”[xiii] Mbeki, Mhlaba, and Bernstein were also cross-examined, while Mlangeni and Motsoaledi gave statements from the dock. The common thread among all of them was that they all refused to implicate anyone outside of themselves.
The Closing Arguments and the Judgement
In his closing argument, Yutar, true to form, passed out intricate, leather-bound copies of his address, specifically to the press, and proceeded to claim that the prosecution succeeded in everything it set out to do. However, an unexpected interjection from Justice de Wet indicated otherwise: “Mr. Yutar, you do concede that you failed to prove that guerrilla warfare was ever decided upon, do you not?”[xiv] This flabbergasted the prosecutor, who proceeded to accuse the defendants of treason and murder, neither of which were even on the table. In the defense statement, Chaskalson made sure to point this out, and also caused the judge to admit that not only were the ANC and Umkhonto separate organizations, but also that guerrilla war was never adopted as a plan. This gave the trialists a newfound sense of hope.
When the time came for the formal verdict, de Wet quickly and quietly announced a guilty verdict for all of the accused except for Bernstein, who was acquitted. This, however, was somewhat expected. The real question was sentence, which was decided the next day, on Friday, June 12, 1964. After hearing two pleas in mitigation from the defense, de Wet made his statement that the case was “in essence one of high treason.” However, as the charge was sabotage, not treason, he “decided not to impose the supreme penalty which in a normal case like this would usually be the proper penalty for the crime, but consistent with my duty that is the only leniency which I can show.”[xv] He proceeded to sentence all of the accused to life in prison.
People can and have postulated in depth as to why the death penalty was not imposed. Like most complicated issues, causality in this case has a multitude of facets, but two in particular jump out. Firstly, the whole world was watching the trial. As such, there was tremendous international pressure. While the whole of the South African government was against the trialists, the rest of the global community was very much in support. There were worldwide protests, including among members of the British Parliament and American Congress. President Verwoerd received letters from men like American U.N. ambassador Adlai Stevenson and Soviet Premier Leonid Brezhnev. The United Nations had passed a nearly unanimous resolution condemning the trial. Sanctions were being applied. Trade unions were up in arms. In light of this tremendous pressure, it may very well have been in the best interests of the state not to pursue the death penalty. The second reason has to do more with domestic pressure. No matter how much Dr. Yutar tried to deny it during the trial, there was tremendous popular support for Mandela and the ANC. The several-thousand strong crowd outside in Marshall Square could attest to that. To hang Nelson Mandela would have incensed the African population. There was already violence against the state, but whereas before there were protests, there would now be riots that, in the eyes of the rest of the world, would be justified.
The goal of the state in the Rivonia trial was primarily to end once and for all the resistance against Apartheid. Many, such as Yutar and probably de Wet, believed that men such as Mandela were agitators who caused problems among the otherwise “good natives.”[xvi] It was their hope that to remove these agitators would validate Apartheid and solidify their hold on the country. If the stories of Steven Biko, Archbishop Tutu, and millions of others tell us anything, it is that, in assuming that the trial would work, they were wrong.
 Mary Benson, Nelson Mandela: The Man and the Movement (New York: W.W. Norton and Company, 1986), 133.
2 Joel Joffe, The State vs. Nelson Mandela: The Trial that Changed South Africa, 2nd ed. (London: Oneworld Publications, 2014), 18.
3 Ibid., 23.
4 Ahmed Kathrada, No Bread for Mandela: Memoirs of Ahmed Kathrada, Prisoner No. 468/64 (Lexington: The University Press of Kentucky, 2011), 169.
5 Nelson Mandela, Long Walk to Freedom: The Autobiography of Nelson Mandela (New York: Little, Brown and Company, 2013), 353.
6 Ibid., 355.
7 Kathrada, No Bread for Mandela, 170.
8 Mandela, Long Walk to Freedom, 357.
9 Joffe, The State vs. Nelson Mandela, 157.
10 Nelson Mandela, No Easy Walk to Freedom: Articles, Speeches and Trial Addresses, ed. Ruth First (New York: Basic Books, Inc., 1965), 162-189.
11 Kathrada, No Bread for Mandela, 177-178.
12 Joffe, The State vs. Nelson Mandela, 184.
13 Ibid., 215.
14 Mandela, Long Walk to Freedom, 371.
15 Benson, Nelson Mandela, 163.
16 Joffe, The State vs. Nelson Mandela, 218.