Apartheid critics thought the answer was obvious. Despite being a detainee in the hands of the security police, the prisoner had not yet been convicted of any crime so the awaiting-trial category should apply – therefore affording all pre-conviction rights. And indeed, when the case was first heard in Cape Town, two judges were faithful to this principled logic. They ruled that the security police had to allow Sachs to read and write while in detention.
But the police appealed against this finding. And, led by Ogilvie Thompson, five judges in Bloemfontein reversed the decision. The appeal court found in favour of the police. It said the purpose of security police detention – unlike pre-trial detention – was to extract information. This made security police detainees different from ordinary awaiting-trial prisoners. Hence ordinary rights did not apply.
Worse, Ogilvie Thompson’s judgment made a general statement. He said that in deciding cases of this sort, judges shouldn’t bend over backwards either to favour government or to protect liberties. They should take Parliament’s will, as they find it in the words of the legislation, and enforce it.
This abdicated the courts’ long-standing role as defenders of the weak and the vulnerable. And it rough-shouldered legal tradition out of the way to help the security police squeeze detainees to talk. The highest court in the land gave its blessing to the coercive power of solitary confinement and detention without trial. The judgment gave the security police wide leeway in dealing with anti-apartheid activists they arrested. It signalled to them that once they had a detainee in their grasp, the courts would be loath to supervise what they did.
In effect, the court washed its hands of those who were in security police hands. It is not far-fetched to see the results of the ruling in the dismal list of more than seventy brutal detainee deaths that took place from the mid-1960s to 1990, including many deaths the police claimed were suicides.
VI: The appeal court decides the Dean’s appeal
Now Ogilvie Thompson was Chief Justice. His imposingly tall frame rightfully occupied the high-backed, throne-like stinkwood centre seat in the main courtroom in Bloemfontein. The Dean’s fate was in his and his fellow judges’ hands. What would they decide?
The Terrorism Act was extremely wide. The statute was passed in 1967, just months after apartheid’s chief conceptual planner, Hendrik Frensch Verwoerd, was assassinated on the government front bench in Parliament. The new statute gave the security police fearsome powers against opponents of apartheid. Under the law, you participated in terroristic activities if you did anything ‘with intent to endanger the maintenance of law and order’. But, more widely even, you also committed the crime of terrorism if you took any action that ‘aided’ or ‘encouraged’ someone else to commit an act with that intent. These provisions were so wide that the threat of being prosecuted for ‘terrorism’ might shut down internal activist opposition to apartheid. A judge even vaguely inclined to help government in its war against apartheid opponents, as in Advocate Sachs’s case, could give these terms their wide ordinary meaning – and the effect would be to smother internal anti-apartheid work.
The Dean’s case was the first chance the appeal court had to pronounce on the statute’s provisions. The appeal was a marathon. Chief Justice Ogilvie Thompson and his panel heard argument from Kentridge and the prosecution lawyers over ten full court days. The lawyers pressed their contesting positions on every fact, each legal angle, every statutory nuance. Then the judges reserved their judgment. When the appeal court adjourns after hearing argument, it almost never says when its ruling will be handed down. The parties leave Bloemfontein in suspense. When judgment is ready to be delivered, the court’s registrar contacts the parties’ local attorney. Everyone waits anxiously for the phone call from Bloemfontein.
In the Dean’s case, it was five long weeks before word came. On 14 April 1972, ten days after Easter, the verdict was announced – as always, in the morning at 9:45 sharp. The judges must have laboured over the Easter weekend to finalise their judgment. The outcome was as dramatic as the Dean’s arrest, detention, trial, verdict and sentence over the previous sixteen months. Kentridge had won. The Dean was acquitted. The appeal court set aside his criminal convictions and sentence. The appellate judges disbelieved the security police witnesses whom Judge Cillié had credited.
I heard the sensational news reports of the Dean’s acquittal in Pretoria during the Easter break from my first-year law studies at Stellenbosch. I was spending the April vacation with my sister Jeanie, who was now a lodger in the home of my aunt Lydia. After a few years in the Pretoria flatland suburb of Sunnyside, we no longer had a home of our own. This was after my mother remarried, eighteen months before I finished high school, and moved to a faraway town. My bond with Jeanie, already intensely powerful after our years together in the children’s home, became more intense even. This was because, as I sat hunched over my books for my crucial school-leaving examination, Jeanie had cooked my suppers and prepared my lunches, every single day, until I left school and entered the army.
But even after I left high school, she continued to provide a home for me. When she moved into my aunt Lydia’s home, she paid board and lodging to make sure that I had somewhere to go during the university vacations. It was there that I heard the dramatic news that the Dean would no longer go to prison. He was a free man.
Later, in the law library back in Stellenbosch, I read the appeal court verdict. Chief Justice Ogilvie Thompson’s judgment was meticulously detailed and carefully reasoned. It was written in the thick judicial style of the time, when judges didn’t show much appreciation that their most important audience members are not the lawyers before them, nor even the litigants in the case – but the wider public beyond.
Wrestling with the judgment, and others even more opaque, I used to wonder why judges couldn’t write clearly and understandably. The most important job of a judgment is to be clear. The public whom it affects must be able to understand it. This lesson has, I hope, stayed with me during my own twenty years as a judge – I have tried to remember that judges write for people, not for lawyers. Any literate person should be able to follow a judgment, even if it demands effort and concentration. A lawyer’s skills should not be needed to be able to understand a judgment.
But the Chief Justice’s ruling in the Dean’s case was entirely unswayed by considerations of popular accessibility. Dense and long sentenced, it gave no glimmering of the human drama of the Dean’s arrest, the Black Sash meeting in Parktown North, and Ms Alison Norman’s eventful train trip to Pietermaritzburg. If within it were buried any delights, it did not easily yield them up.
Instead, what emerged very plainly was that, as with all judges, Chief Justice Ogilvie Thompson’s personal history and social class played a part in how he assessed the witnesses who took the stand against the Dean. Ogilvie Thompson attended an elite private school in Grahamstown, and made his career as an advocate and a judge while living in the affluent English-speaking suburbs of Cape Town.
This personal history now hindered the prosecution and helped the Dean. On the credibility of Major Zwart versus Ms Norman, he made it plain that Ms Norman’s upper-class social standing carried clout with him. ‘She comes from a wealthy English family and is in her own right financially well off,’ he noted, adding approvingly that she had taken ‘a first-class degree in history at the University of Oxford’.
Would a woman of such quality have blown her cover drinking beers and brandies with an Afrikaner security policeman posing as a liberal? Chief Justice Ogilvie Thompson could not bring himself to think so. ‘It is difficult to credit,’ he said, ‘that a woman such as the evidence indicates Miss Norman to be, would, in the middle of a hot day, consume not only three beers but two double brandies as well.’ The latter, he said, noting a typically rigorous detail, ‘being pre-metrication tots’.
Ms Norman later revealed that in fact she had drunk those brandies with Major Zwart. But her high-class credentials helped her earn credibility where it mattered – with the Chief Justice and his colleagues who decided the Dean’s appeal.
But Ogilvie Thompson was an impressive lawyer, with a penetrating legal mind and some liberal sentiments. And, though he betrayed those in the Sachs appeal, he knew full well what he was doing