The South African Treason Trial
One of the undaunted liberal voices in South Africa, ALAN PATON was born of English settlers in Pietermaritzburg on January 11, 1903. His father was a civil servant, his mother a teacher, and after his graduation from the University of Natal, he himself began teaching in a Zulu school. In 1935 Mr. Paton went to Johannesburg to become principal of Diepkloof Reformatory, where he took over the task of re-educating the 650 young African inmates. Out of his wide experience and deep feeling came his profoundly moving novel CRY, THE BELOVED COUNTRY. And the same impulses prompted him to serve as a trustee of the Treason Trial Defence Fund.
THE Treason Trial is now a byword in South Africa. It is three years old; its preparatory examination lasted fourteen months; it has been broken into several trials. It adjourns for months to enable the prosecution or the defense to reply to the latest attack from the other; it resumes only to adjourn again. Originally one hundred and fifty-six persons were charged; now thirty are left. All these persons — but, in particular, those who are left — have suffered great hardships; many have lost their employment, and even many of those against whom the charges have been dropped have found it difficult to get work again.
No one knows what the trial has cost. The Treason Trial Defence Fund has so far collected a sum of over $260,000, and of this a sum of $170,000 has been spent on legal defense alone. The prosecution may easily have spent a comparable amount, but in addition to that, a tremendous sum must have been spent on judges, stenographers, policemen, witnesses, and documents. The state has not contributed at all toward the maintenance of the accused persons, and this charge has had to be borne by the Defence Fund. Over and above that are the incomputable losses suffered by the accused persons themselves, and it is already apparent that some of them will never again be fully rehabilitated, no matter what verdict will be given against them.
It is my purpose in this article to recapitulate briefly the history of the trial and to bring the reader up to date. I am no lawyer, but I shall do my best to deal with that side of the trial in simple but, I hope, not misleading terms. I cannot, however, write absolutely freely. The offense of contempt of court is a serious one in South Africa. A writer like myself must therefore confine himself to a reporting of facts about the trial and may not scoff at it or insinuate that the government’s real purpose is to cripple some of its stoutest opponents; he may not discuss the guilt or innocence of the accused or reflect on the integrity of the court.
He may, however, report that, among the leaders and supporters of the Nationalist Government, there are many who regard opposition to apartheid — the policy of rigid racial separation — as treasonable. Our late Prime Minister, Mr. J. G. Strijdom, said so unequivocally, and I have no reason to suppose that our present Prime Minister, Dr. Hendrik F. Verwoerd, thinks any differently. The policy of apartheid has become increasingly identified with the state, and to oppose it is to oppose the state itself. It is in this atmosphere that the trial is being held.
It was three years ago, on December 5, 1956, an hour before dawn, that the police arrested most of the one hundred and fifty-six persons who were to be charged with high treason. Among the accused were many of the national leaders of the bodies called the congresses — the African National Congress (the ANC), the Indian Congress, the white Congress of Democrats, the Congress of Trade Unions, and the Coloured Peoples Organisation. One hundred and four of them were Africans, twenty-three were white, twenty-one Indian, and eight colored people — that is, of mixed descent.
One of the most notable of the accused was exC-hief Albert Luthuli, President-General of the ANC. In 1952 the Nationalist Government ordered him to choose between the ANC and the chieftainship; when he chose the ANC, the government deposed him, but everyone still calls him Chief. The Chief is a teetotaler and nonsmoker about sixty years old, benign in manner but severe in judgment. He has a strong character and personality and in any non-color-bar country would have been in a position of high authority. He once visited the United States on behalf of the Christian Council of South Africa and could, I think, be described as a man of peace — but not peace at any price.
One of his important ANC colleagues, Professor Z. K. Matthews, acting principal of Fort Hare University College, was also arrested. He, too, is known in the United States, having been a postgraduate student at Yale and in 1952 the Luce visiting Professor of Theology at the Union Theological Seminary in New York.
The Reverend Douglas Thompson, a Methodist minister, was also arrested. He was a devoted worker for peace and would work with any person for that end. Such catholic willingness can be dangerous, as Americans well know. Whatever his fellow churchmen thought of his wisdom, they had no doubt of his intentions and were generous in their support of him.
Another prominent person accused was Dr. G. M. Naicker, President of the Indian Congress, a disciple of Gandhi; he had played a prominent part in the passive resistance movement against apartheid and in 1947 toured the riot areas in India with the Mahatma.
The preparatory examination of the hundred and fifty-six accused was held in Johannesburg and lasted fourteen months. The charge against them was serious. The prosecution alleged that the accused were active in the so-called Liberation movement, that they had a joint organization, that they “propagated and preached the MarxistLeninist account of society and State,” that they called a Congress of the People at Kliptown and drew up a Freedom Charter, which was a step toward the establishment of a Communist state.
The opening of the trial coincided with the factory holidays. Thousands of nonwhite workers crowded around the Drill Hall, the venue of the trial, demonstrating their sympathy with the accused. Tension mounted, and the police opened fire, wounding fourteen people. It was an anxious time.
What did the Freedom Charter say? The Charter said:
We, the people of South Africa, declare for all the country and the world to know —
that South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of all the people;
that our people have been robbed of their birthright to land, liberty, and peace by a form of government founded on injustice and inequality;
that our country will never be prosperous or free until all our people live in brotherhood, and enjoy equal rights and opportunities.
The Charter promised: universal suffrage; abolition of apartheid; the transfer to the “ownership of the people” of mineral wealth, banks, and monopoly industry; redivision of the land “amongst those who work it”; freedom of speech, organization, religion, movement; better working conditions; the opening of all doors of learning; national independence, with respect for that of others.
The defense repudiated the charge of Communism. It would endeavor to show, it said, that “what is on trial here are not just one hundred and fifty-six individuals but the ideas which they and thousands of others in our land have openly espoused and expressed.” On the one side were “those ideas which seek equal opportunities for, and freedom of thought and expression by, all persons of all races and creeds, and, on the other side, those which deny to all but a few the riches of life, both material and spiritual, which the accused aver should be common to all.”
This preparatory examination would have lasted many years. There were 12,000 documents, and it was the apparent intention of the prosecution to present and read them all, though many had no apparent relevance. One of the most fascinating parts of the evidence was that of Professor Arthur H. Murray, University of Cape Town, on Communism. He applied four tests to the documents:
Did they preach direct Communism by quotation from the Communist masters?
Did they do so by paraphrasing the masters?
Did they exemplify “non-deviation”? For example, did they support Soviet foreign policy?
Did they exemplify “aesopism”? That is, was the superficial meaning intended to convey more?
The cross-examination was dramatic. The professor agreed that certain statements presented to him were the “sorts of statements that Communists make.” The defense revealed that all the statements except one had been made by persons such as Franklin D. Roosevelt, Pitt, Heine, Luther, Milton, and Jefferson.
The preparatory examination was adjourned in September, 1957, and resumed in January, 1958. In the interim, it was announced that the charges had been dropped against sixty-one of the accused, among them Chief Luthuli, the head of the ANC, but not his lieutenant, Professor Z. K. Matthews. Among the sixty-one was also one unfortunate who had heard neither his name nor any activity of his mentioned during the entire examination.
The prosecution was then taken over by Mr. Oswald Pirow, Minister of Justice under General Hertzog and onetime admirer of Hitler. He asked for the committal for trial of the remaining ninety-five. The magistrate, Mr. F. C. A. Wessel, who had presided over the preparatory examination and who had earned a reputation for fair dealing, agreed, saying “there is sufficient reason for putting all the accused on trial on the main charge of High Treason.”
NINETY-TWO persons — three more having been discharged — appeared in August, 1958, before Justices F. L. H. Rumpff, J. F. Ludorf, and A. Kennedy. Dean Erwin N. Griswold of the Harvard Law School and Dr. Edward Hambro, former Registrar of the International Court of Justice, were observers. One more accused was discharged because of illness, leaving ninety-one. The trial was held in Pretoria, owing to the fear of public disturbances in Johannesburg.
Advocate Isaac Maisels immediately made an application for Justices Rumpff and Ludorf to disqualify themselves. Mr. Justice Ludorf was replaced by Mr. Justice Bekker; Mr. Justice Rumpff, however, declined to withdraw on the grounds that the defense was misinformed when it believed that the Minister of Justice had consulted him in regard to the appointment of the second and third judges.
The defense then attacked the indictment, partly on the grounds that the facts did not support the allegation of “common purpose,” partly because the joinder of all the accused was irregular. It further pointed out that there were so many “and/or’s” in the indictment that an actuary called in by the defense had estimated that, for one page of the indictment, each accused could face any one of 498,015 charges.
What is the nature of treason? That was the argument. Does it lie in hostile intention? Or does it lie in overt acts? And must these overt acts have been committed in conspiracy?
Advocate Pirow for the prosecution created a sensation by stating, “If we fail to prove conspiracy, all the accused go free.”
Advocate Maisels argued that the defense could not rely on Mr. Pirow’s interpretation. The indictment was still defective.
The court adjourned to allow the prosecution to amend the indictment, which they did by eliminating all the “and/or’s,” rejecting documents as being in themselves acts of treason, and withdrawing all but twenty of the speeches.
Advocate Maisels again attacked the indictment, still on the grounds that there was a misjoinder of the accused and that specific acts, not a course of action, were now clearly alleged. Advocate Pirow then created the greatest sensation of the trial by withdrawing the indictment altogether.
The accused were, after two years, back where they had started. But a tremendous legal and moral victory had been won by the defense. Throughout the country there was a demand — though not from government supporters — for the dropping of the whole business. But on November 14, 1958, the government announced that the ninety-one accused would be reindicted in two separate groups: one of thirty, whose trial would commence on January 19, 1959; the other of sixty-one, whose trial would begin on April 20.
The new indictment, to a layman, appeared much the same as before, except that there were now apparently to be two “conspiracies.” The indictment alleged that speeches were made, documents published, and that a Congress of the People was summoned, all “in pursuance of the conspiracy.”
After another adjournment, the defense again applied for a quashing of the indictment on much the same grounds as before; it asked for fuller particulars in regard to the allegation that the accused planned to use violence, and it also attacked the allegation that the words “freedom in our lifetime” meant “freedom in five years.”
There was still another adjournment to enable the prosecution to consider these arguments. It dropped the “five years” interpretation and was ordered by the court to supply fuller particulars, but no other change was made. The court then rejected the defense plea for the quashing of the indictment.
Thereupon the trial took a unique turn. While it was still in process, the court allowed an appeal to the Appellate Court in Bloemfontein, the highest tribunal in the country. In the interests of all concerned, the Appellate Court was asked to reply to two questions of law before the trial proceeded any further:
Since treason involves violence to overthrow the government, are words, alleged by the indictment to have been used, capable in law of constituting violence?
Since not more than a handful of the accused can be linked with each particular meeting or speech, can they all be joined together in one indictment?
The Trial was again adjourned and resumed on August 3.
The trial of the second group of sixty-one accused began on April 20, 1959. The special court quashed the indictment on the grounds that the prosecution still did not say how the accused entered the alleged conspiracy and that therefore the accused were unable to prepare their defense.
The layman no longer pretends to understand the Treason Trial. He does not know how many trials there are, or whether they stand adjourned, and, if so, when they will be resumed. Least of all does he know what the legal arguments are. But one thing he does know — that the prosecution has had to contend with one of the most brilliant defense teams in South African history and has had to struggle every inch of the way.
One fear has been laid to rest, and that was that the prosecution would have its own way, and an easy way, too. People feared that, if that happened, treason would become too easily identifiable with democratic opposition.
That, in fact, was the great issue at stake. That was why many who could never have identified themselves with all the views of the accused, people who had never been members of the congresses and who had never subscribed to the Freedom Charter, rallied to the defense.
It was a remarkable thing that so many citizens of South Africa, having studied coolly the allegations of the prosecution, chose to defend the right of the accused persons to be considered innocent until proved guilty. It was a remarkable thing that they chose to do so soon after the arrests, when people were asking, “Are so many plotting treason?” or perhaps “Who will be next?”
CHOSEN as the trustees of the Treason Trial Dffence Fund were the Anglican Bishop of Johannesburg, ex-Judge Frank Lucas, who has since died and who was known for his courage and integrity; Dr. Ellen Hellman, past president of the famous political but anti-apartheid Institute of Race Relations; and myself. Of the §260,000 so far collected, approximately half came from South Africa, and of the overseas collections, by far the greater part came from Christian Action in England. One trembles to think what would have happened if it had not been for this magnificent help from overseas, in large measure inspired by Canon John Collins of St. Paul’s Cathedral in London.
In the United States, Bishop James A. Pike and John Gunther are co-chairmen of the South Africa Defense Fund of the American Committee on Africa, which has raised §50,000.
Although the Defence Fund is an officially registered welfare fund, it would require considerable moral courage to collect for it in many of the towns and villages of South Africa, Many people who give to it, especially businessmen, do not wish to receive even an anonymous receipt. Fear of giving to the fund is to be found in all racial groups of the nation among those who are nervous of the great power of the Nationalist Government and who fear a possible revenge; many of these work for the central or local governments.
How, then, one must admire, for example, the generous help given by the Indian teachers of Natal They do this not because they have any sympathy for Communism or revolution. In fact, most of them are temperamentally unable to sympathize with violence. They are supporting the fund because they are defending the democratic right to protest against injustice and to work for its removal and because they have a humanitarian concern for the families of those who are involved in this never-ending trial. No other group in the entire South African community has a clearer grasp of the issues involved or acts with less fuss and heroics on the basis of its convictions.
Those of us who support the fund do not see the trial as a struggle between authority and Communism or between order and revolution. The real issues at stake are whether the democratic right to protest is to be defended and whether the door is to be kept open for betterment and change. If it is not, then apartheid will one day be destroyed in a welter of blood and violence.