I look from one man to the next. They gaze back, earnest, solemn. ‘Well, let me deal with your first question about the implications of your not going into the witness box to give evidence. In a criminal trial, if the accused plead not guilty and then are not prepared to give evidence in their own defence, which means going into the box and denying their actions and being subjected to cross-examination, the court will draw what is known as an “adverse inference”. At the end of the trial when the judge is weighing up all the evidence, this factor will count against the accused.’
They nod understandingly.
‘You see,’ says Jabu, softening the tough stand taken by Ting Ting, ‘it is not just that they have all the evidence against us from the confessions and when we pointed out the places where the acts took place and described them, it is also that we will not deny these things from a political point of view.’
We look at one other, the implications and the consequences writ large.
Ting Ting continues, ‘We have had long and hard discussions about all the options you presented to us. We have taken each one, worked it through and in each case we have rejected the possibility of using that type of defence. We cannot plead not guilty. Firstly, because we will not allow them to place us on trial according to their rules for fighting to liberate this country. They have no right to do that. Secondly, we did the acts alleged, mostly on the instructions of the ANC and we will not back away from that.
‘At the same time, we cannot plead guilty. Although we are, in fact, guilty, our acts cannot be seen in purely criminal terms, just as those who killed the enemy in the fight against fascism in the Second World War were not tried for murder. The acts we committed were carried out against an enemy that has made us victims in our own country and taken any rights that we had away from us. Our rights to land, to move freely, to work in a fair manner, to be educated, and a range of others. This government is murdering our youth and has our leadership in prison. The people we killed were at the forefront of the apartheid regime’s attack on black people and they deserved what happened to them. While we have killed and each of us has to deal with that inside ourselves, we are not murderers. We are not normal criminals.’
We all smile at the ‘normal criminals’ bit.
‘Do you follow me, that this is a war in which they hold most of the cards and we cannot simply play their game when we have had no part in forming the rules?’ asks Ting Ting.
‘I follow you very well,’ I say, ‘and I appreciate your position.’ I know where this is going, but it cannot come from me.
‘Look, let’s also be honest here,’ says Ting Ting, ‘we know that we probably cannot avoid the death sentence. We have to face that fact, so we need to conduct our trial and go our way in a manner which does not compromise our beliefs and the reputation of the ANC. That is why we like the last option that you presented to us. It may be radical and not the norm in ANC trials, but it is the one we would like to follow. By doing this, we get to the same conclusion as the other defence options, but in a way of our choosing and which will also highlight what we are doing and the nature of the conflict we are involved in.’
They are talking of the prisoner-of-war option. This was the last option I had presented to them. I had done this knowing it was an extreme course of action, but that at least it deserved consideration, given their desperate situation.
In this option, they are acting as soldiers under orders from the ANC and are involved in a ‘just war’ against an illegal and illegitimate minority government. This government, by implementing the system of apartheid, declared an international crime against humanity, and has oppressed and caused the deaths of many of its citizens. The court represents this illegal government and therefore has no authority to try the accused. On this basis, they do not recognise the jurisdiction of the court and refuse to participate in the proceedings. They insist on being accorded prisoner-of-war status in terms of the Geneva Convention.
Heavy stuff. Quite so, but I knew the system and I knew that the accused would, in all likelihood, have difficulty denying the charges against them. There would be a ‘trial within a trial’ but afterwards the proceedings would follow a predictable path. The judge would admit the confession and the State would be home and dry. But I also knew that choosing this ‘soldier option’ would send them down an avenue from which there was no return.
By rejecting the jurisdiction of the court, the four would not be able to participate in their own trial and mount a defence. In the light of this refusal, the judge would be compelled to enter a plea of ‘not guilty’ on their behalf. The trial would then proceed as if they had entered the not-guilty plea. However, the evidence of the State, in the form of documents or witnesses, would be unchallenged and admissible. There would be no cross-examination of witnesses and no challenging of the confessions. Barring a miracle, not a frequent occurrence in our courts, they would be found guilty on all counts.
I explain to my clients that after being found guilty of murder, an accused is entitled to mount an extenuation case. The sentence for murder is death. Only if the court finds extenuating circumstances, can a lesser sentence be passed.
My clients listen intently.
‘A wife who murders her drunken husband in self-defence when he’s coming at her with a knife after she’s proved that he has violently abused her and her children for ten years, will have an excellent extenuation case,’ I explain. ‘The problem for you is that if you do not participate, you will not be able to mount an extenuation case and therefore the death sentence is a certainty.’
Their guard drops. There is silence. We look at each other and I see confusion and loneliness in their eyes. Vulnerability. Caught in the headlights and blinded, they nevertheless choose not to run.
‘But, Peter, are we not finished anyway?’ says Neo Potsane. ‘Whatever we do, we are dead men.’
The words ‘dead men’ ring in my ears. And this is what goes through my mind: if they choose the prisoner-of-war option, it will be a grand and brave gesture. But when they are dead and buried, their mothers will look at me and believe I failed them, that I should have saved their sons. That I should have stopped them making heroic but fatal stands and kept them alive at whatever cost. I also know that once the death sentence has been passed, the accused will be quickly hanged if there is no appeal.
The State will do this to avoid the lengthy and very public campaign that would almost certainly be mounted for their reprieve and release. It is a fact that if they do not participate in the trial, they could be hanged within three months of sentence.
‘Look,’ I say, ‘the State has a strong case against you and you have a major problem if you don’t plead. If you enter a not-guilty plea we may be able to spin out the trial for a long time. With postponements and appeals, we could even stretch it for a few years. At the same time, we can get an international campaign started that may place sufficient pressure on the government to ensure that you are given a reprieve even if you do get the death sentence.’
They are silent, watching me.
‘Things can happen in the trial that may assist us. We may get lucky and be able to prove torture and get your confessions thrown out. The judge may make a mistake or behave so badly and show so much bias that we could take him on review. Hell, the judge may even die and we would then have to start the trial all over again and that would take a few more years and who knows what might happen then.
‘Some of the judges they allocate to these trials are so old that it’s difficult knowing if they’re alive in the first place.’
They smile.
‘What I’m saying is there are things we can do to keep you alive and I have an obligation to do that. But if you do not participate, these doors are all closed to you. The trial will proceed very quickly and you stand every chance of going down. Maybe I am wrong. I’m a firm believer that something will turn up. I am an optimist.’ Thinking to myself that you bloody well have to be an optimist to do this work.