The Rivonia trial was the most important South African trial of the 1960s and probably the most important of the last three decades of apartheid, from 1960 to 1993. It sent many of the senior leaders of the ANC, including Nelson Mandela, to prison under sentences of life imprisonment. That was a tremendous defeat. But it did not result in their execution, as it certainly could have. That was a profound victory, one that even the National Party, the party of apartheid, would come to recognise, because without this victory Nelson Mandela would not have lived to negotiate the end of apartheid and become post-apartheid South Africa's first President.
The lawyers for the Rivonia accused understood that the case marked a critical moment in South African life; that the stakes were extremely high; and that they themselves would be tested at every moment and their performance in that test remembered for the rest of their lives. Arthur was an integral member of the defence team, and of the larger team made up of the lawyers and their clients, the Rivonia accused. The decisions the team made, he was part of and contributed to.
Arthur also made vital individual contributions in the division of labour that the lawyers evolved; in this division, Arthur's role was not primarily to examine witnesses (though he did some of that) but rather to master the law and the voluminous details of the facts, both to offer argument himself and to guide his colleagues in their work with witnesses. (One of the accused, Denis Goldberg, described Arthur as accomplishing, 'in the days before computer spreadsheets, the setting out of the comments or the remarks of each witness in relation to each of the accused and each of the allegations against us, as if in a spreadsheet' – and also mentioned that Arthur 'grabbed' Denis's notes to use as well. All this was essential in part because the defence counsel could not afford to purchase a running transcript of the events in court.) This work of analysis went on all the time, and culminated for Arthur personally in a prominent role in the team's closing arguments to the judge.
Mandela spoke for more than four hours in presenting his unsworn statement from the dock. It was a statement that became rightly famous, not only for its closing paragraph:
'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.'
There has been some discussion around who wrote Mandela's speech. R.W. Johnson maintained that Bram Fischer wrote it, rather than Mandela. But Arthur himself refuted Johnson's supposition:
'The suggestion is completely unfounded. I was junior counsel in the defence team. One of my responsibilities was to gather research material that Mandela requested while preparing his speech. He spent many hours working on it, on occasion editing it in the light of the comments of his colleagues and lawyers, and right up to the day it was delivered, made changes to the wording. The architecture, tone and thrust of the speech were his and his alone. The demeaning suggestion that he may not have been the author is simply untrue.'
Of course, other members of the team, and even sympathisers outside the team, made suggestions, as Arthur's letter reflects. It would be strange if what may be the most important speech made in South Africa – at least before Mandela's release from prison – had been written without advice. Joel thinks that Arthur in particular may have contributed more than research assistance.
But the speech was Mandela's. Perhaps the clearest confirmation of this comes from a recollection of Denis Goldberg's, not included in his book. Denis remembers that at one point Arthur said that he would have liked to write Nelson Mandela's speech. As Denis understood this, Arthur was saying that he wished he had had the life that would have been the foundation for such a speech. Now, having gone through the trial with the accused, Arthur had become almost one of them, after initially being engaged more as a professional. Arthur's words are a mark of how profoundly the trial had affected him, and a sign of the long-term impact this speech, and the trial as a whole, would have on him – but they also underline why it was Mandela, rather than Arthur, who was the author of the speech.
When at last the long trial was over, both sides prepared their closing arguments. 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.'
'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.'
* This is an extract from Arthur Chaskalson: A Life Dedicated to Justice for All by Stephen Ellmann, published by Pan Macmillan, available now in leading book stores.