RW Johnson writes on how and why the accused avoided the death penalty
Musing over Biko’s death in 1977 I realised that this had presented the ANC with a major opportunity. While Biko was alive, black politics was a three person game involving Black Consciousness, the ANC and Buthelezi. Naturally, the ANC had courted Buthelezi for in any three person game, two against one wins. But once Biko was removed from the scene the ANC, which naturally sought a power monopoly, was free to move against Buthelezi – which it did decisively in 1979-80. Ultimately it tried to assassinate Buthelezi.
Reflecting on this, I realised that South African politics were just as complex and as given to realpolitik as anything I had studied in France. The problem was that all the main actors were off stage – the ANC leaders in exile were shadowy figures in London, Mandela, Sisulu and Co were on Robben Island and even the National Party leadership lived in a little world of its own, so one never got any inside gossip about their real motives or private thinking.
Moreover, there was no formal communication at all between these various groups so there was no proper public debate. What this meant was that South African politics were discussed in the most unreal way, in a story of symbolic images and pure principles. But if one began to reason on the assumption that politics in South Africa worked in much the same way as it did elsewhere, one could begin to pierce through the mythology and symbolism.
A classic case was the Rivonia Trial which had sent Mandela and his co-accused to life sentences on Robben Island and thus became, in its way, the epicentre of South Africa’s 20th century history. The trial itself had become myth-laden. Even when Anthony Sampson wrote it up many years later in his biography of Mandela, most of the myths were intact. Yet it is worth examining it afresh just to see behind those myths.
Sampson records that there was substantial support for Mandela and the Rivonia accused in Britain, even in the Conservative Party, let alone the other two parties, and that Sir Alec Douglas-Home, the Foreign Secretary, offered to send a private message to Verwoerd about the trial. But Home tried to discourage any more open expressions of support for Mandela, saying that British pressure could be counter-productive.
But it was quite clear that the trial was fixed and the verdict known in advance. Major-General Van den Bergh, later head of BOSS (the Bureau for State Security), told the British Embassy in Pretoria that there would not be death sentences and that the prosecutor, Percy Yutar, would not ask for them. A week before the verdict was given the defence lawyer George Bizos was told by the British Consul-General, Leslie Minford, “who was thought to have intelligence links”, “George, there won't be a death sentence.” 
The realpolitik behind that was that the UK and USA were still protecting South Africa from the worst that the United Nations General Assembly would have done on its own, refusing sanctions and boycotts, continuing to trade and invest in South Africa, to co-operate militarily and in intelligence matters – while all the time pleading for more time for South Africa to reform and pressing South Africa to do so.
This protection was immensely valuable to the Pretoria government so it is unsurprising that Verwoerd would listen when they made it plain that the Rivonia accused must not be hanged. Quite apart from long-term considerations such as the possibility of negotiations being necessary some day with the ANC leadership, there was the far more immediate fact that the execution of black leaders would create grave problems for the Democrat administration in Washington which depended on black votes. The British, for their part, had nearly seen the Commonwealth tear itself apart over the South African issue in 1961 and knew that the execution of Mandela would enrage not only Ghana and Nigeria but Canada, India, the West Indies and others.
Mandela, meanwhile, was desperately insisting at the trial that he was not a Communist – for that alone would bring automatic and heavy penalties down on him and his comrades. The most embarrassing piece of evidence against Mandela was his own essay on “How to be a Good Communist”, which included such statements as “Under a CP government South Africa will become a land of milk and honey….There will be no unemployment, starvation and disease”.
This damning evidence was supported, moreover, by evidence from Bruno Mtolo, who not only told the court how Mandela had preached guerrilla warfare but that he had also told his audience in Durban that the Communists – who dominated the ANC – should conceal their own beliefs which were often unpopular in South Africa. (In fact this was a perhaps deliberate mistake: Mandela had been shocked by the hostility he had encountered on his tour of Africa (not South Africa) on the subject of the ANC’s alliance with white Communists.)
Even such favourable listeners as the defence attorney Joel Joffe thought that after such evidence Mandela and Sisulu were at best 50-50 for a death sentence. Then, however, Mandela won the court over by a long and eloquent speech in which he likened his relationship with the Communists to that of Churchill and Stalin during the war, and spoke in praise of the British and American political systems.
The presiding judge, Justice Quartus de Wet, seemed extremely nervous as he came to give his verdict: although he found the accused guilty, he had decided not to impose the death penalty. There was a great gasp of relief in the court room where almost all those present – and the accused themselves – had expected the death penalty. Mandela smiled while several of the prisoners said happily “We got life !”. Mandela himself was fully expecting a death sentence. According to the happy mythology of the trial, Mandela had proved that he was not a Communist and the worst had been avoided through his own dramatic speech and by the heroic efforts of his lawyers, particularly Bram Fischer.
In fact it is not difficult to deconstruct the situation. Mandela, as we now know, was not only a Communist at that time, but was on the Party's central committee. Even the SACP itself boasted of this after Mandela's death. Which is to say, of course, that Mandela was lying throughout about his beliefs in the way that any Communist at the time would have been expected to do.
Secondly, Mandela’s speech was certainly not entirely his own – he himself acknowledged this. There is little doubt that Bram Fischer and, through him, other SACP intellectuals such as Rusty Bernstein, made extensive contributions to that speech. For, of course, Fischer was a pre-eminent leader of the SACP and had been heavily involved in the Rivonia circle himself. His co-advocate, Arthur Chaskalson, had wanted to join the SACP but had been dissuaded by Fischer who felt he would be more useful as a secret sympathiser. Thus Mandela's defence was largely in SACP hands.
Mandela was not normally a particularly eloquent speaker and it is most unlikely that he would, on his own, have been able to come up with analogies to Churchill and Stalin, or that he knew much about the British and American political systems. Similarly, references in Mandela's speeches to Magna Carta, the Petition of Right and the recent sentencing of Bertrand Russell in England for his anti-nuclear activities all suggest other speechwriters' work.
Doubtless such points were inserted in order to impress liberal opinion in Anglo-America. But the key point is that the notion that it was Mandela’s dramatic speech which made all the difference is clearly untrue. What turned the tide was British and American diplomatic pressure.
And the fact that the British and Americans knew the trial’s outcome in advance could only have been because they had been given assurances which would have to have come ultimately from Verwoerd himself. Which in turn means that both Percy Yutar and Justice de Wet were effectively under political control and were doing what they were told. (De Wet, who had been appointed a judge under the Smuts government and was not regarded as politically pliant, would probably have preferred a less drastic sentence than death anyway.)
On his own Yutar would doubtless have taken the most aggressive tack possible and would have demanded the death sentence. And no wonder De Wet showed signs of nervousness as he handed down a verdict which he may have feared would leave him exposed to political criticism.
This fact of political control enables one to understand a whole series of steps in the case – all of them favourable to the accused. Thus De Wet interrupted Yutar and demanded to know if he accepted that he had failed to prove that guerrilla warfare was ever decided on by the accused?
Yutar, utterly flummoxed, said that preparations for guerrilla warfare had been made. De Wet again, to the delight of the defence, replied rather testily that he knew that but that the defence had said they had, at the time of their arrest, taken no actual decision to engage in guerrilla warfare. (In itself this was an extremely dubious assertion.) So did Yutar have any evidence to disprove that? No. So, in effect, De Wet ruled that the defence argument must be accepted as the truth, an extraordinary concession.
Then Fischer rose to tackle the two cardinal points made by the prosecution, that guerrilla warfare had been undertaken and that effectively MK (Umkhonto) and the ANC were the same thing. To Mandela's delight and astonishment, De Wet interrupted Fischer before he had begun his argument in order to flatly concede both points. Mandela comments, “Bram, who was usually prepared for anything, was hardly prepared for De Wet's response. He then sat down; the judge had accepted his arguments even before he had made them.”
Even more significant, when De Wet rose to hand down his sentences he said “The crime of which the accused have been convicted, that is the main crime, the crime of conspiracy, is in essence one of high treason. The state has decided not to charge the crime in this form. Bearing this in mind and giving the matter very serious consideration, I have decided not to impose the supreme penalty which in a 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. The sentence in the case of all the accused will be one of life imprisonment.”
This begs the question of why the state deliberately pulled its punches and did not press charges in a form which would more or less have mandated the death penalty.
Finally, the security police had deeply penetrated both the ANC and SACP – and they were not fools. They must have known perfectly well about Mandela's Communist Party membership – and the evidence in court was anyway pretty obvious. The accused were being perfectly realistic in expecting death sentences. And yet the court accepted Mandela's plea that he was not a Communist.
On the left this was cheered as proof of the legal brilliance of Mandela's defence team in knocking holes in the case of the Red-baiting prosecution. But this seems extremely unlikely – even someone as sympathetic to the accused as Joel Joffe thought that the evidence against Mandela was damning. However, if we factor in the fact that the judge and the prosecution were both clearly under Verwoerd's control, it is easier to surmise what was going on.
For Verwoerd knew only too well how provoking to both the National Party parliamentary caucus and the NP electorate at large was the sight of black revolutionaries plotting the violent overthrow of the white regime.
If, in addition, it was proved that their leaders were Communists this would completely vindicate the bogeyman constantly held out by Verwoerd. In which case a death sentence would be unavoidable. It therefore suited him if they were not found to be Communists – for then it would be very difficult to explain to an angry National Party caucus and electorate why they had not been hanged. Thus once he had agreed with the Anglo-Americans that the prisoners would not be hanged, it was in his interests to soft-pedal the prosecution a bit.
As may be seen, if even the sacred myth of Rivonia could be so easily deconstructed, then what else was possible? So much of South African politics is always obstructed by a fog of naivete and parochialism but it was so much more interesting to take a realist approach.
RW Johnson is the author of the recently released book “Foreign Native: An African Journey”, Jonathan Ball Publishers, from which this article is derived.
 N. Mandela, A Long Walk to Freedom. London, Little Brown and Company, 1994, p.360.
 This emerged from an extensive correspondence in the pages of Business Day after Chaskalson’s death in December 2012. Ken Owen, a former editor, claimed that Chaskalson had been an actual SACP member, while his defenders made the point above.