For weeks he had worked on his closing address to the court. Now, on the morning of May 20, 1964, in Court Three of the baroque Palace of Justice in Pretoria, Percy Yutar would do his best to put Nelson Mandela away for good, or hang him. "Although the state has charged the accused with Sabotage, this is nevertheless a case of High Treason par excellence," the state prosecutor began with characteristic hyperbole. "It is a classic case of the intended overthrow of the government by force and violence with military and other assistance of foreign countries."
It was the crowning moment in the South African state's case against Mandela and nine of his comrades--on trial for conducting a sabotage campaign against white-minority rule and the oppression of apartheid--and Yutar wasted no time launching a vitriolic attack on the defendants. "The deceit of the accused is amazing," he declared, his voice rising in anger. "Although they represented scarcely more than 1 percent of the Bantu population, they took it upon themselves to tell the world that the Africans in South Africa are suppressed, oppressed and depressed. It is tragic to think that the accused, who between themselves did not have the courage to commit a single act of sabotage, should nevertheless have incited their followers to acts of sabotage and guerrilla warfare, armed insurrection and open rebellion and ultimately civil war.
"Because of the people who have lost their lives and suffered injury as a result of the activities of the accused, it is apparent that this case is now one of murder and attempted murder as well," he solemnly declared.
As it happened, Yutar got almost everything he wanted. Two of the accused, Lionel "Rusty" Bernstein and James Kantor, were acquitted, but the other eight--including Mandela and Govan Mbeki, father of the man who is now the new president of South Africa--were found guilty and sentenced to life. Mandela had thought he would be hanged and later recalled feeling relieved, even jubilant, at hearing the sentence. Still, he and his comrades were packed off to solitary Robben Island, where he began 26 more years of confinement. More than anyone else, it was Percy Yutar who sent him there.
An Awkward Reconciliation
Three decades later, an animated little man leads the way from the front hallway to the study. Percy Yutar is pale, thin and elderly, with a prominent nose and ears and thin wisps of hair rising haphazardly from a wrinkled pate. He wears leather slippers, an ascot and a shiny burgundy robe that might be silk. He apologizes for his elaborately casual dress, saying he has been laid low with flu for several days, and even now is emerging from his sickbed only to entertain a guest from abroad. Still, at 86 one cannot expect perfect health; he is, he insists, loath to complain.
It is a lawyer's study, ostentatiously so, even in the dim light of dusk. The bookshelves are filled with the complete works of the Earl of Birkenhead, the dean of British legal reform, and several rows are devoted to famous trials, including books on the Lindbergh kidnapping, one of the many subjects upon which Yutar humbly fancies himself an expert. On the walls are framed pen-and-ink caricatures of well-known British barristers in full courtroom regalia. And Yutar conducts himself as if he, too, were performing in a court of law. His manner is friendly but formal, and he speaks in a dramatic semi-falsetto that might have filled a cavernous courtroom but seems an octave too overwrought for the narrow confines of the study.
It is July 1997, and I have come to visit during a season of revelation and atonement in South Africa. The Truth and Reconciliation Commission, established by President Mandela, is concluding public hearings at which some of the most brutal perpetrators of apartheid and their victims are recounting the injustices of that era. I am researching a book about the early years of racial tyranny in South Africa, focusing on 1963, the year the country finally emerged as a full-service police state. It was the year that the security police crushed the anti-apartheid resistance movement, raided the movement's secret headquarters in nearby Rivonia, a suburb of Johannesburg, and placed Mandela and nine of his closest comrades on trial for their lives.
Yutar, then 52, was deputy attorney general for the Transvaal province. He worked closely with the security police in directing the prosecution of what became known as the Rivonia trial, using evidence from witnesses who had been held in "administrative detention," a particularly brutal form of solitary confinement, until they broke down and agreed to testify for the state. He used a newly formulated law that perverted Western legal tradition by effectively putting the burden of proof on the accused.
At first, Yutar reaped great rewards for his successful prosecution. He was named attorney general, first of the Orange Free State and later of the Transvaal, the first Jew ever to receive the post. He retired 12 years later to ringing praise from the justice minister, fellow lawyers and leaders of South Africa's small but influential Jewish community. But history has not proved so kind.
The end of white rule brought forth accusers who characterized Yutar as a faithful cog in the apartheid machine. His triumphs turned to ashes. In 1996 Mandela, as part of a carefully calibrated campaign of racial reconciliation, invited Yutar to lunch at the president's mansion. Mandela hadn't wanted to do so, aides later explained, but felt compelled as an act of symbolism. The president, grimacing as if he were suffering from terminal indigestion, dutifully declared that Yutar had properly done his job 30 years earlier in dispatching him to prison. Yutar, looking up at the 6-foot-2 president with the expression of a grateful spaniel, averred, "I played only a minor role only because I was doing my duty." And he drew noxious comparisons between the suffering of the Jewish people down through the ages and that of blacks under apartheid, as if he personally had suffered as much as black South Africans.
All, seemingly, was forgiven. The next day, however, Walter Sisulu and Ahmed Kathrada, two of the most venerable of the comrades who had served their sentences alongside Mandela, denounced Yutar as a singularly aggressive and deceitful agent in the cause of injustice. Sisulu, normally the most amiable of men, was particularly harsh. "Yutar wanted to show the Nationalist government [that] he as a Jew was even more vicious than anyone else," Sisulu said in a television interview.
Yutar was denounced again a year later when it was revealed that he had sold to a private collection, for an undisclosed sum, his copy of the complete Rivonia trial transcript, a rare archival treasure. The man who had prosecuted Mandela was now said to be profiting from the deed.
When I began my research into the Rivonia era, I assumed Yutar had long since died, and I was surprised to see his birdlike visage glancing up at Mandela in a wire service photo from the conciliatory luncheon. Over the phone, Yutar told me that he never granted interviews. But he agreed to allow me to visit, provided our meeting was off the record.
I have come to his home not to condemn Percy Yutar but to study him. I want to know what kind of man could serve such an unjust state with so much loyalty. I am calculating that for a book written by an outsider with no personal stake in South Africa's endless wars of memory and forgetting, Yutar might relent and agree to tell his story.
In the end there is no reluctance. Yutar is eager to justify himself to me and explain why all of the criticism and condemnation is unwarranted and unfair. It is all, he says, a terrible mistake and a grave injustice. For he, Percy Yutar, had actually saved Nelson Mandela's life.
A Brutal Crackdown
The Rivonia trial was a milestone in the conflict between white and black in the southern tip of Africa. After the Sharpeville Massacre in 1960 when 69 African protesters were mowed down by police, the government outlawed Mandela's African National Congress and a splinter group, the Pan Africanist Congress, ending the days of nonviolent protest. Mandela and his comrades formed an underground movement, Umkhonto we Sizwe, or Spear of the Nation. On Dec. 16, 1961, they launched the sabotage campaign, blowing up electricity pylons, deserted government buildings and other inanimate objects. The only person killed that first night was an Umkhonto activist whose bomb went off in his hand. The care taken not to kill was intentional. Umkhonto's first leaflet, a manifesto breathtaking for its idealism and its naivete, eschewed killing and proclaimed that its goal was "to bring the government to its senses before it is too late."
But it was already too late. Apartheid was not some temporary lapse of sanity but an ideology of racial domination that gripped the Afrikaner ruling elite as tightly as Nazism had once captured Germany. The government responded to the sabotage campaign not with entreaties for talks but with a brutal crackdown.
Hundreds were detained under the harsh new laws of the police state. The courts were not scrapped and defense lawyers were still allowed to do their work--but defendants were not allowed legal defense until they had already confessed.
To carry off this charade of maintaining the outward form of justice while deleting the content, the state needed the active cooperation of those within the system itself--judges and prosecutors.
Which is to say, it needed Percy Yutar.
Religion & Ambition
At the time of the Rivonia trial, Yutar was one of South Africa's most prominent and experienced prosecutors. He had a tough, logical mind, a flair for the dramatic and an unquenchable thirst for headlines. The press, which was not inclined to delve too deeply into the personalities of those behind the levers of the state's legal machine, was fawning. One Sunday newspaper article, headlined "The Yutar Legend," called him "far and away the most qualified legal brain this country has ever possessed." It added in a sub-headline, presumably to correct any wrong impression, "Ruthless avenger is also gentle."
He was many things, but perhaps the most fundamental fact about Percy Yutar's identity was his Jewishness. He was born in Cape Town of parents who had come to South Africa, like most Jewish immigrants to the country, from the ghettos of Lithuania. Percy was one of eight children and money was scarce. As a young man he was expected to work in his father's butcher shop. Even though the Yutars were a religious family, his father would violate Jewish law and open the shop on Saturday morning to service the weekend trade. One Saturday, Percy was jamming slick cuts of raw beef through the electric mincing machine when his left hand slipped and plunged into the blades. The fingers were mangled beyond repair, leaving Percy with raw stumps at the end of his hand, a constant reminder of the price he had paid for violating the Sabbath.
Yutar attended the University of Cape Town on a scholarship and eventually was awarded a doctorate in law. Still, even with the highest of degrees, Jews were not welcome in the cozy, inbred offices of the South African civil service. He was given a lowly position as an "outdoor officer" in the office of the telephone manager in Johannesburg, tracking down illegal phone hookups and delinquent subscribers through the dusty summer heat and the winter chill. After five years he finally received an appointment as a junior law clerk in the accounts department of the Ministry of Justice. He worked in Room 66 at the Palace of Justice in Pretoria, one floor above the courtroom where he would later prosecute Mandela. The antisemitism among Yutar's co-workers was intense; there were nights, he told me, when he would return home to his lodgings in Pretoria, close the door and cry himself to sleep. But he hung on. He finally was promoted to junior prosecutor and assigned back to Johannesburg in 1940.
This was the job Yutar had been waiting for. As a prosecutor, he finally felt in control of his own fate. He could write the script for a trial, direct the drama and play the principal role. He completed his apprenticeship and became an expert in criminal fraud. Soon he was prosecuting a much wider range of crimes--murders, jewel thefts, public corruption. He was respected by his colleagues and feared or despised by the criminal bar. No one worked harder, or seemed to enjoy his power more. Eventually he became deputy attorney general for the Transvaal province. But his ambition to rise even higher remained profoundly transparent. "The office of the attorney general is a laurel I would much like to pluck," he told the South African Jewish Times in 1958. No one doubted it.
As he rose in the legal bureaucracy, Yutar came to prosecute not just criminal defendants but political ones as well. He himself seemed indifferent to apartheid. It was clear from speaking with him, that like many whites, he benefited from white domination but was not a true believer. Still, he became one of the security police's favorite prosecutors, their agent and willing tool. In return, they brought him big cases, which helped promote his career. When the 90-day detention law came to pass, some prosecutors might have had qualms about building a case on tainted testimony from witnesses so thoroughly at the mercy of the worst kind of policemen. Percy Yutar was not so fastidious. He would take the new prosecutorial weapons and use them to their utmost. It was, as he often solemnly said, his duty.
One thing he never compromised was his religion. Even as a junior clerk in the antisemitic Afrikaner bureaucracy, he proudly wore a signet ring in the shape of the Star of David. Every Saturday morning he would attend shul. For more than a decade he served as president of Johannesburg's largest Orthodox synagogue. Judaism became his justification. He could do nothing immoral, he would piously claim, for his faith would not allow it.
The Rivonia trial was itself a test of faith. Yutar had hungered for it because of his ambitions. What better steppingstone to the state's top prosecutorial post than to successfully dispatch the state's most dangerous enemies to the gallows or life in prison? But the Jewish question was also an important motivation. Jews were a small but prominent part of the white minority. Many had found a comfortable niche in the white elite; others were liberals, and a handful radicals. All six of the whites arrested at Rivonia came from Jewish backgrounds, as did many other prominent leftists close to Mandela. The three white defendants at the trial--Bernstein, Kantor and Denis Goldberg--were all of Jewish origin.
Where some Jews saw the radicals' Jewish background as an embarrassment, Percy Yutar saw an opportunity. Who better to prosecute Jewish traitors than a loyal Jew? Who better than he to put things right and prove that not all Jews were radicals hellbent upon overthrowing the government?
The Case of a Career
One of the first decisions Yutar faced was what charges to lodge against the accused. Both treason and sabotage carried the death penalty. But treason required a lengthy and arduous preliminary hearing at which the state would be compelled to divulge much of its evidence, and two witnesses to corroborate each charge.
Yutar opted instead for sabotage, which had been legislated as a capital offense the previous year. As a "new" offense, it had certain police-state conveniences. No preliminary hearing was required, and only one witness need testify to each alleged act. Better still, from the prosecution's point of view, once a destructive criminal act had been shown to have occurred, the burden shifted to the defendant to prove that the particular deed was not meant as an act of sabotage.
Weighing against the expediency was the fact that treason was the classic charge, one the public held in far more awe than sabotage. And, in the minds of the officials filing the charges, treason was what the Rivonia men ultimately had committed. To charge them with anything less suggested the state did not have total confidence in its case. Yutar's boss, Transvaal Attorney General Rudolf Rein, implied as much when he learned that his deputy was proposing sabotage rather than treason. "Percy," he asked, "are you afraid to prosecute this case? If so, we'll be prepared to replace you."
But Yutar had no intention of surrendering the reins of the biggest case of his career. "Rudy, I'm not afraid to do my duty," he replied. The attorney general demurred. Sabotage it was.
The case started badly for the prosecution. After holding the defendants for 88 days in solitary, Yutar finally filed a dramatic four-page indictment that filled the front pages of the local press. But the charges were a mess. At a preliminary hearing, Bram Fischer, leader of the defense team, dissected every paragraph, sentence by sentence and clause by clause. The indictment did not disclose who had carried out each of the alleged acts of sabotage, nor their connection to the defendants, he noted. How could the accused defend themselves if they did not know with whom they had allegedly conspired? And if the state did not know, how could it allege that the defendants had been involved? Some of the alleged acts had occurred before the Sabotage Act had been enacted. Nelson Mandela was charged with conspiring to commit 156 acts of sabotage that had taken place while he was in jail.
Like a captain on a sinking ship, Yutar tried to salvage his leaky indictment. Rather than argue the law or rebut the specifics of Fischer's argument, he accused the defense of attempting "to harass and embarrass the state."
The presiding judge, Quartus de Wet, wasn't buying. Yutar's criticism of the liberation movement was irrelevant, he said. "This is not a political meeting, this is a legal argument and this is a court of law, Mr. Yutar."
Yutar was bereft. His voice rose an octave and he seemed close to tears. He begged and implored de Wet not to throw out the indictment. But the judge had heard enough. He announced he was dismissing the charges, rose and left the court. Yutar slumped in his chair like a rag doll.
But any defendant who thought he could walk out of the courtroom a free man was greatly mistaken. Even before the judge's door swung shut, T.J. Swanepoel, the notorious bull-necked police interrogator whom dozens of detainees accused of brutality, was up and vaulting over the small railing of the dock. He thumped Mandela and the other defendants on the shoulder. "I am arresting you on a charge of sabotage," he said to each as he moved down the row. And with that, the police herded the prisoners back downstairs to their holding cells.
The game was rigged. Trial procedure was still in accordance with Western standards; everything else was by police-state rules.
How much was Yutar calling the shots? He insisted that he and he alone had decided on the charge. But at the time he often invoked the limits of his own authority. After Rusty Bernstein's request for bail was formally denied, Bernstein's wife, Hilda, decided to approach Yutar herself. On three occasions, she recalls, she climbed the stairs to Yutar's second-floor office in the Palace of Justice. A large contingent of security policemen was always camped out in the room. Yutar never refused her request outright, and Hilda concluded that this was because he had a powerful need to be respected by everyone, even a hated communist like herself.
The third time, when Hilda was ushered into the office only Yutar and a senior Special Branch officer were present. "Colonel," Yutar told him, "Mrs. Bernstein wants us to let her husband have bail."
The colonel was looking out a window with his back to the room. He swiveled his head, eyed Hilda briefly and said "No." Then he returned to scrutinizing the view.
"You see how it is," Yutar told Hilda Bernstein. "I would very much like to help you, I would indeed. It's not in my power, really. I'm sorry, it can't be done."
Life in Prison
When Nelson Mandela first came to court, he was dressed in shabby prison garb and looked haggard. But a few weeks of better food and a decent suit made a world of difference. By the time the defense began, he looked hearty and in command. And he bravely addressed the court, affirming his guilt while presenting a ringing defense of his deeds. After his four-hour address, silence dominated the courtroom.
Mandela and his comrades fully expected to hang. Though Yutar never explicitly demanded the death penalty, his flagrant exaggeration of the heinousness of the crimes left little room to doubt his desire.
In the end, Judge de Wet, a judicial nominee from the pre-apartheid era, chose to stay the hangman. "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," he ruled. "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 I can show. The sentence in the case of all the accused will be one of life imprisonment."
It was over. The judge stood up swiftly and marched out. Nelson Mandela and his comrades were taken away, while South Africa plunged into an era of darkness and repression. They never dreamed it would take 26 years for him to emerge and take his rightful place as leader of his nation.
'No Personal Feelings'
"You say was I eager? Eager to take it because it was an important case? No, no, no, I don't think that motivated me. Was I reluctant to take it because of the dangers involved? Also not. But what moved me was--and I speak as a legal man, a prosecutor, true to my calling--as a prosecutor I had a certain duty to perform."
We are alone, Percy and I, sitting at a small table in a guest bedroom. The tape recorder is running. I have already held two lengthy off-the-record sessions with him, including dinner with him and his wife, Cecilia ("Chippie"), at his favorite Italian restaurant. I have also met his son David, a Cape Town journalist. Percy finally has agreed to an interview on the record, provided I submit written questions in advance.
When I arrive, he greets me with a written set of answers. He will be happy to elaborate on them orally, he says. But when the interview begins, he reads them almost verbatim.
I begin with an unthreatening, open-ended question designed to draw him out: What were his feelings about being assigned to prosecute the biggest political case in South African history?
He rambles on about doing his solemn duty, concluding, "And so I had no personal feelings."
I shut off the tape recorder.
"Percy, I'm sorry," I tell him, "but for us to continue, you have to be more open with me. It's impossible for anyone not to have had feelings on this. And if you can't answer this easy question in an honest way, how can I trust your answers when we come to the hard ones?"
All right, he says. He understands. He will try again.
Still, a pattern is established: I ask, Percy ducks. His answers are full of self-justification and self-aggrandizement. "You may find it strange, but please believe me, I never regarded it as a steppingstone. I never did. And another thing, too, at the conclusion of the case I wasn't rewarded in any way."
As for his sense of obligation as a Jew, "It's not correct to say that I was representing the Jewish community, because race, creed or color but never, but never entered my mind. Please believe me."
His Hebrew name, Percy tells me, is Pinchas--"a great man who was filled with unsparing hatred of evil and burning indignation against a deed that was a monstrous profanation of God's holy name."
Still, he tells me he felt it would have been unfair to charge the defendants with high treason; he choose to prosecute them for sabotage not as a matter of strategy, but out of a sense of justice. Their political organizations, after all, had been banned. They had no recourse to civil action. "So although I was outraged by what they had done and what they intended to do, I still acted fairly. . . . My conscience was clear."
Though both sabotage and treason carried the possibility of the death penalty, Percy insists he knew by instinct and long practice that the judge would not condemn the accused to hang for the former charge, only for the latter. But Percy says he never told his superiors what he was up to. "I must tell you this, the reason for my decision I kept to myself because if I would have divulged that reason they would have taken strong action."
And what about his willingness to use witnesses who had been held indefinitely by the police until they agreed to testify? "I questioned them, in effect cross-examined them, and if I was satisfied that they were telling the truth and if I have the documents to support it, then it makes no difference if they were under 90-day detention. I'm aware of the fact that sometimes police go a little bit too far, you know, but I was satisfied that the witnesses they produced to me were telling the truth."
But what about Percy? Is he telling the truth?
To be fair to him, I attempted to substantiate his claim that he used legal sleight-of-hand to subvert the wishes of his superiors and keep Mandela from hanging.
With Percy's help, I found Police Lt. W.P.J. van Wyk, who led the Rivonia raid and was chief investigative officer for the case. Van Wyk has fond memories of Percy, but does not buy Percy's claim that he had set out to save Mandela by avoiding the charge of treason. The real reason, van Wyk said, was that sabotage was easier to prove. Besides, van Wyk assured me, Percy had not decided the charge on his own. "Now he's telling the world that he begged and he begged, and that's untrue. Although he's a nice man--we worked very close together. But he's changed his story."
And he conveniently omitted the fact that during the sentencing phase of the trial, when Alan Paton--South Africa's best-known novelist--made a dramatic plea to spare Mandela's life, Percy ripped into him McCarthy-style, attempting to discredit Paton as a communist dupe.
So what does Percy Yutar really believe? The mind is a wondrous thing. It's possible that after all this time he has truly convinced himself that he played a noble role and saved Mandela for posterity. Better, perhaps, than the alternative of admitting he helped lock away a great man and subjected his country to 26 unnecessary years of strife and repression. There is guilt in Percy, but it has nothing to do with his role as perpetrator of the old regime. Instead it's over the embarrassment his wife and son have been subjected to. It is, I suspect, a rather self-pitying guilt: not I'm sorry for what I did; but rather I'm sorry for what it's done to me and my family.
He has asked for my help in finding a publisher in New York or London who might be willing to print his memoirs, which he says will refute the various calumnies he believes have been perpetrated against him over the years. Nelson Mandela has publicly forgiven him. But Percy Yutar wants history's forgiveness as well. For now, he'll settle for mine.
When it all winds to an end, he turns to me. "Now that you've heard my story, you do believe me, don't you, that I saved their lives?"
Adapted from "Rivonia's Children: Three Families and the Cost of Conscience in White South Africa" by Glenn Frankel, published this month by Farrar, Straus & Giroux.