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“The South African Trial of the Century: The Rivonia Story” by Joel Joffe Mayibuye Books (available through www.exclusivebooks.com) 230 pages, $6.82 Lawyers and civil libertarians who are concerned with the U.S. government’s increasing use of detention of material witnesses, abrogation of the attorney-client privilege, secret proceedings and its obstruction of the right to counsel by such means as designating detainees as “enemy combatants,” might be interested in reading in “The South African Trial of the Century: The Rivonia Story” about another country’s historical use of such techniques. This book, by participating defense lawyer Joel Joffe, is an absolutely riveting tale of prosecutorial machinations, daring escapes, wholesale violation of the attorney-client privilege and brilliant lawyering techniques used in support of men with strong political principles — the very men who, 30 years later, were vindicated and who are now leading the new democratic South Africa. Joffe is an excellent, careful lawyer who is not prone to exaggeration or innuendo. He includes us in some of the small humorous respites from an otherwise overwhelmingly grave task, since all of the defendants faced the death penalty. Among the defendants arrested at a farmhouse in Rivonia on July 11, 1963, were Walter Sisulu and Govan Mbeki, the father of current South African President Thabo Mbeki. Along with Nelson Mandela, who was already serving time for incitement, all were charged under the brand-new Sabotage Act of 1963 as being members of the National High Command of the ANC’s military wing, “Spear of the Nation (MK).” The defendants were all held incommunicado for 86 days prior to making their first appearance in court under a law that permitted detention without charge for 90 days. Most of the defendants entered a not guilty plea, saying, “It’s the Government that should be in the dock, not me.” Mandela gave his very famous speech from the dock, ending with, “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.” Eight of the 10 defendants were convicted of sabotage and sentenced to life in prison. The brilliant lawyering, particularly by attorney Bram Fischer, a scion of the South African bar, was credited with saving the defendants’ lives. The indictment read “State v. Nelson Mandela and others,” and alleged the commission of 235 acts of sabotage. MK did perpetrate some destructive acts against the state, such as bombing an electric substation outside Port Elizabeth on Dec. 16, 1961, the day the military triumph of the white Voortrekkers over the Zulu armies is celebrated. But some of the alleged acts of sabotage had been committed before the 1963 law they were charged under had become law. The indictment also included 156 acts of sabotage allegedly committed by Mandela while he was behind bars. The defense request for a bill of particulars was answered by the prosecution stating “these facts are peculiarly within the knowledge of the accused.” The defense claimed a Pyrrhic victory when its first motion for dismissal of the indictment was granted. However, all of the accused were immediately rearrested on the same charges before they could even embrace their families. The law had changed since the historic Treason Trial of 1956-1961, which resulted in acquittals of all 156 persons charged. The 1963 Sabotage Act required only one witness to each act rather than two and, significantly, permitted a defendant to be retried on the same charges after acquittal. The second indictment, though containing few more specifics, was upheld as sufficient. Justice Quartus de Wet, the judge president of the Transvaal, permitted prosecutor Percy Yutar to read from documents not introduced into evidence, to lead witnesses, to coach them and to introduce staggering amounts of irrelevant testimony, ruling simply that the defense lawyers could object at the end of the prosecution’s case. The prosecution mounted 173 witnesses as the trial dragged on for exactly 11 months before verdict. While the trial was proceeding, the World Peace Council awarded the defendants a medal for meritorious service to the cause of peace, and the United Nations passed a unanimous (except for South Africa) resolution calling for the immediate release of all the Rivonia defendants. The 10th defendant, ultimately acquitted, was an attorney named James Kantor, whose only connection to the case was that he shared a law practice with an ANC member who had escaped pretrial detention and fled to Botswana. After the arrest, Kantor’s law office had been searched and hundreds of dockets and files taken, including statements given in reliance on the attorney-client privilege. The police told attorney Joffe that they would avert their eyes when they came across privileged statements in the seized files. In typical Joffe prose, he writes, “I might be forgiven for being cynical about this.” Ultimately, he says some of Kantor’s clients were prosecuted. Joffe’s complaints to The Law Society about the threat to the principle of attorney-client confidentiality went unheeded. Although the defendants admitted they were all either leaders or followers of the ANC or MK, they said Operation Mayibuye, the cornerstone of the prosecution’s case, was only a document drafted for discussion purposes and that they had not yet agreed to undertake armed struggle. This strategy of testifying forthrightly not only was consistent with their political principles, but it boosted their credibility before Justice de Wet. He ultimately concluded that the prosecution had failed to prove Operation Mayibuye had ever proceeded beyond the discussion phase. The fact that the prosecution had at its disposal the statute permitting 90-day detention without charge was apparently not enough for Percy Yutar. He held witnesses in what he deemed “protective custody,” though no such concept existed in South African law. In fact, witnesses were being held as long as five months until they gave testimony “to the satisfaction of the state.” The most revealing statement during the trial came from Police Captain Swanepoel, who, when questioned about interrogation methods, stated simply, “We tell him what we know and wait for him to confirm it.” The sole witness who implicated James Kantor later testified that he was twice given electroshock and made to sign a blank piece of paper, as in Stalin’s “show trials.” The excitement of Joffe’s book is that he successfully puts us in the moment, making the trial decisions with them day by day, under relentless obstacles, including limited prison hours for consultation of their clients and eavesdropping by the prison authorities. The counsel for the accused at Rivonia showed an extremely sophisticated and nuanced understanding of psychology and politics, especially compared to their adversary, who couldn’t comprehend that the defendants could admit their membership in banned organizations but deny they were terrorists. As in the Red Scare prosecutions in the United States, the defense concluded that they must avoid implicating other members of the ANC, lest they be rounded up and tried. As a strategy, it failed to impress Justice de Wet, who found that the defendants were motivated by personal ambition and convicted them, but it kept the remaining underground structures of the ANC and MK from being further damaged. For any lawyer who may be feeling disenchanted with his or her profession, this book is not only an exciting read, but a reminder of the historic role that can only be played by a member of the bar. Ann M. Schneider is a member of the National Lawyers Guild who recently traveled to South Africa to see the new Constitutional Court.

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