When as lawyers from the LRC and CALS we engaged in courtroom confrontations, we aimed to set the same battle lines as the lawyers in the Treason Trial had set. Time and again, we adopted tactics and brought forward witnesses and testimony that shifted the courtroom contest from focusing on the strict legal issues to the moral repugnance of the apartheid laws the authorities were seeking to enforce.
From the Treason Trial on, public court hearings under apartheid became a contest of right and wrong – but not right and wrong according to apartheid law. One set of norms, those of the apartheid legal system, determined that breaking the law was illegal, and that those guilty of it were criminals. Another set – the moral values that showed that racial subordination was abhorrent, and that any system premised on it was indefensible – determined that apartheid’s opponents were fighting a just cause, in a necessary struggle, and were guilty of no moral wrong in breaking its laws.
The legal system under apartheid, employed to perpetuate racial supremacy, became one of the instruments for its subversion.
However, as I was to discover in my own years in legal practice, using the law against apartheid was often a tedious and long-winded business. It demanded much patience.
The preparatory examination in the Treason Trial dragged on for over a year, but in January 1958, 61 of the accused, including Chief Albert Luthuli and Mandela’s law partner, Oliver Tambo, were discharged for lack of evidence. They walked free. For the 95 accused who remained, Mandela amongst them, the daily burden of trial attendance and preparation continued.
The trial proper started on 3 August 1958. A special court of three judges was put together to try the accused. Presiding was the same Judge Rumpff who had previously convicted Mandela and the other leaders guilty of breaking the law, but had given them wholly suspended sentences. Together with him sat Judge Kennedy, and Judge Ludorf – all had been appointed to the Bench by the apartheid government. In his autobiography Mandela bleakly describes the panel, with its links to government and apartheid-supporting organisations, as ‘not promising’. (Ludorf later, after the accused successfully challenged his impartiality, was replaced by Judge Bekker.)
To many it must have seemed inevitable that this panel would render guilty verdicts and long sentences.
The daily slog that a long-running trial demands continued for the accused even, as outside the courtroom, tense events were shaping our country’s momentous and sometimes horrifying history. Robert Mangaliso Sobukwe and others, objecting to the Freedom Charter as too conciliatory, broke away from the ANC in April 1959 to form the Pan Africanist Congress (PAC). Mrs Helen Suzman and eleven other parliamentarians split from the main white opposition to form the Progressive Party. In Cape Town and Johannesburg, the newly formed PAC pre-empted the ANC by leading mass protests against the pass laws. On 21 March 1960, to the aghast horror of South Africa and the world, police shot dead 69 unarmed protestors at the Sharpeville police station. Eighteen days later Parliament passed a special law banning both the ANC and the PAC. South African whites voted just months later, in October 1960, to become a Republic, which Prime Minister Hendrik Verwoerd soon took outside the Commonwealth.
The grim thirty-year end-phase to apartheid, which was to see decades of isolation and oppression, had begun.
Amidst these momentous events, the leaders who remained on trial had to travel to Pretoria every day, where the trial proceeded in the Old Synagogue, and sit through the long, dense hours of court process. The trial absorbed the energies and time of all, taking them away from their work, their families and their political activity. But the proceedings – and especially the belligerent defence – also soaked up the resources of the apartheid state, its prosecutors and police and officials. At least some of that energy would have been spent enforcing the increasingly rigorous racial separation the hardliners demanded, uprooting families and communities from ‘black spots’, and victimising black people without passes in urban areas. Because of the combative tactics of anti-apartheid lawyers, time, money and resources had to be diverted from enforcing apartheid into the courtroom battle.
The legal fight was surely worth it.
And most importantly and practically, the protracted Treason Trial ended in a sensational acquittal of all the accused. After Mandela and other accused had testified in their own defence, and the state and defence had closed their cases, Judge Rumpff told the defence the court did not need to hear further argument. He said that the panel of judges had reached a unanimous verdict. This cut the proceedings dramatically short. It was an outcome that freed all the accused. For the prosecution, this meant the trial had proved a catastrophe.
In his judgment on 29 March 1961, Rumpff explained that although the ANC was intent on replacing the government, and had used illegal means of protest during the Defiance Campaign, the prosecution had failed to show the organisation was using violence to overthrow the state. Hence the prosecution had failed to show that the accused acted with revolutionary intent.
The last 30 accused were all pronounced not guilty and discharged.
Mandela recounts that when Judge Rumpff finished delivering the court’s verdict, ‘The spectators’ gallery erupted in cheers. We stood and hugged each other, and waved to the happy courtroom. All of us then paraded into the courtyard, smiling, laughing, crying. The crowd yelled and chanted as we emerged.’
The most massive legal contest in South African history had ended in disaster for the prosecution. The accused and their lawyers had torn the state’s accusations to shreds. The attempt to use treason charges to stifle extra-parliamentary anti-apartheid opposition had been calamitously thrown out of court. As Mandela recounted, ‘After more than four years in court and dozens of prosecutors, thousands of documents and tens of thousands of pages of testimony, the state had failed in its mission. The verdict was an embarrassment to the government, both at home and abroad.’ Yet, he reflected, ‘the result only embittered the state against us even further. The lesson they took away was not that we had legitimate grievances but that they needed to be far more ruthless.’
And Mandela did not regard the verdict as a vindication of the legal system – or as evidence that a black man could get a fair trial in a white man’s court. His own assessment was much more constrained. ‘It was,’ he said, ‘the right verdict and a just one, but it was largely as a result of a superior defence team and the fair-mindedness of the panel of these particular judges.’
X: Law and armed resistance to apartheid – the Rivonia Trial
Mandela was correct when he had predicted that enforcement of apartheid would take a ruthless turn after the Treason Trial acquittals. Government pushed even tougher statutes through Parliament to make it easier for prosecutors to secure convictions against extra-parliamentary apartheid opponents.
Without a bill of rights, the courts had no power to question what the legislature enacted. Parliament was supreme, and courts had to enforce its will – or that, at least, was the doctrine most white judges accepted under apartheid.
A brave minority on the Bench thought differently. They fought to find ways to uphold long-standing Roman and Roman-Dutch legal precepts. These included equal treatment, unless a statute expressly commanded otherwise, and elementary procedural fairness. They fought for these to prevail, even in the face of rancid apartheid legislation. And, indeed, occasionally the laws Parliament enacted did leave enough room for determined lawyers, and fair-minded judges, to try to secure just outcomes. In addition, fair procedures could generally still be demanded in the courtrooms of apartheid.
Only months after the treason acquittals, events occurred that would put those courtroom processes to further test. On 16 December 1961 Mandela and other leaders founded the ANC’s armed wing. They called it uMkhonto weSizwe (MK), the ‘Spear of the Nation’.
The armed struggle had begun.
But on a wintry day just a year and half later, on 11 July 1963, most of the high command of the ANC leadership was arrested in a dramatic police raid on a secret hideout at Rivonia, north of Johannesburg. During the raid, the police arrested seven people. They also seized