On the contrary, Judge Ramsbottom said, using the racial terminology of nearly fifty years ago, Mandela’s motives were pure: in advocating defiance, he ‘was obviously motivated by a desire to serve his fellow non-Europeans’. The intention was ‘to bring about the repeal of certain laws which [he] regarded as unjust’. The method of producing that result was unlawful, ‘but his offence was not of a personally disgraceful character’. Hence there was nothing that rendered him unfit to practise as an attorney.
What about the fact that Mandela was unrepentant? He denied nothing. On the contrary, he remained defiant. He embraced his leadership of the Campaign, and refused to disavow anything he had said or done. The Law Society urged the court to take disciplinary action because despite being convicted of a crime he had ‘not expressed regret’.
This point was a potential winner for the Law Society. Most practitioners carpeted for wrongdoing ooze humility and repentance. Not Mandela. He remained unbowed in the face of possible professional ruin. But Judge Ramsbottom also dismissed this attack. He did so in a rousing codicil to his judgment. He said that if Mandela’s actions did not justify the court disciplining him, he could not be required to express regret: ‘If what he did was not dishonourable, his failure to express regret cannot make it so.’
It was an extraordinary judgment. In effect, it was a ringing endorsement of Mandela’s character and the motives behind his political work. Urging disobedience of apartheid laws was ‘not dishonourable’. On the contrary: it was ‘obviously motivated’ by a desire to serve. This came as close as two white judges of the courts of apartheid South Africa could come to saying that Mandela’s motives were noble, and that his support for the Defiance Campaign was righteous.
Mandela was deeply affected by the judges’ decision. He cited it later, when, after being released from prison, he addressed the very Law Society that forty years earlier had moved to disbar him. ‘Here I am,’ he proudly exclaimed, ‘with my name still on the roll.’
IX: Justice and the courts under apartheid – the Treason Trial
The apartheid authorities, though dismayed by the judgment, did not sit still. They acted forcefully to hobble Mandela’s mobility and to mute his public voice. The police tried to punch him down with successive banning orders. These restricted his movements, forbade him from holding office in any organisation, and muzzled his public speaking. But government had to do this through ministerial diktat and security police action. Until his conviction of conspiracy, in effect treason, ten years later, the courts and the law did not disown Nelson Mandela. And he remained a lawyer and an officer of the court.
Most importantly, the decision showed that, even in a wicked legal system, judges committed to justice and fairness may do more good than harm.
The judges in the Law Society case were appointed before the apartheid hardliners came to power. After 1948, government vigorously set about appointing Afrikaners, many of them apartheid supporters, to the Bench but, to the surprise of many, quite a number of the new judges also showed an aptitude for independence, a commitment to the rule of law, and a readiness to respect fundamental legal principles.
The Afrikaner nationalists were proud of the Roman and Roman-Dutch legal heritage the white colonists brought to South Africa in 1652. They saw themselves on a mission of civilisation in Africa, and they considered their legal heritage an important part of their calling. The effect of this was that, even though the legal system was grotesquely disfigured because it enforced apartheid, occasionally some justice could prevail. I was an Afrikaans speaker myself – my mother was an Afrikaner Schoeman, whose forefather came to the Cape in 1724. Though my primary language has long been English, before Pretoria Boys’ High I went to Afrikaans schools. In literal terms both my first language and my mother tongue were Afrikaans. Hence my upbringing gave me a first-hand sense of the Afrikaners’ sense of mission: both its racial condescension, and its claim to elevation.
Afrikaner pride in ‘their’ legal system helps to explain why Judge Rumpff, against expectation, let the Defiance Campaign leaders escape jail. And it explains the reaction of Judge Quartus de Wet, who later determined Mandela’s fate in the Rivonia Trial, when a troublesome magistrate questioned Mandela’s status as a lawyer, demanding to see his certificate to practise, and addressed him disrespectfully (‘Hey, you’). Mandela brought a petition to remove the magistrate from the case. His motion succeeded. De Wet was outraged: ‘This is the sort of thing that brings the administration of justice into disrepute in our country,’ he said. He removed the magistrate, and ordered the case to start afresh before a new, presumably more respectful, presiding officer.
But Mandela’s confrontation with the apartheid legal order was only beginning. On 25 and 26 June 1955, barely a year after Judges Ramsbottom and Roper affirmed his status as a practising lawyer, a 3000-strong ‘Congress of the People’ at Kliptown in Soweto adopted the Freedom Charter. In defiance of his ban, Mandela covertly attended.
The Charter proclaimed 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 the people. It demanded democratic government by the people, equality and human rights for all, and a share for all in the country’s wealth. It proclaimed that the land shall be shared amongst those who work it.
It concluded in rousing terms. ‘Let all who love their people and their country now say, as we say here: “These freedoms we will fight for, side by side, throughout our lives, until we have won our liberty.”’
To the apartheid authorities, determined to perpetuate white dominance, this was intolerable provocation. Heavily armed policemen disrupted the second day of the Kliptown meeting. They said they were investigating high treason, and were searching for subversive documents. Their quest culminated within a few short months. Before the end of the following year, at dawn on 5 December 1956, only a few months after the rigged Parliament voted to cut coloured voters from the common franchise, the police swept through the country, arresting 140 people. Sixteen more followed shortly after. Among the very first seized was Nelson Mandela.
All those arrested were brought to the Old Fort prison in Johannesburg, which stands on the high knoll between Braamfontein and Hillbrow, commanding both the northern and the southern approaches to the city. Its northern ramparts now shelter the Constitutional Court from the icy southerly winds that sweep through downtown Johannesburg in wintertime. The Fort was built on the instruction of President Paul Kruger at the end of the nineteenth-century to defend the Transvaal Republic against British gold-seeking imperialists.
Now, a half-century later, it held captive the most prominent extra-parliamentary opponents of apartheid. They were a distinguished array of churchmen, lawyers, writers, trade unionists, teachers, manual workers, businessmen, academics and community activists. They included blacks, coloureds and Indians, and also 23 whites.
The arrests signalled the start of the biggest trial in South African history. Two weeks later, those arrested were brought to face the charges. They appeared before a magistrate in a makeshift courtroom set up in downtown Johannesburg’s Drill Hall – because no court was big enough to accommodate them. All were charged with the offence of high treason under the Roman-Dutch common law. The charge, if proven, carried the death penalty.
The trial was in two stages. First there was a preparatory examination to see if there was enough evidence to formally try the accused in a superior court. For those against whom enough preliminary evidence was presented, a full trial then followed. (This two-stage process, though not abolished, fell into disuse when the current criminal procedure statute came into force in 1977.)
But if the apartheid authorities thought that arrest, arraignment and treason charges would silence the accused, they were badly mistaken. The accused and their legal team sprang a surprise. Far
