from the very start. Instead of allowing the proceedings to focus on the technical question of whether the accused had engaged in acts that made them guilty of subverting the state, their defence turned the spotlight on the high ethical issue of how apartheid laws oppressed South Africans.
Under scrutiny were not so much the actions of those struggling for freedom and equality, but government’s intransigent and oppressive racial policies. The accused and their lawyers used the court proceedings to put apartheid on trial. This was to be a pattern over the next forty years. Apartheid hardliners sought to enforce their policies of racial domination by using the law against their opponents, and by using criminal trials, and the prospect of jail, to smother their work. In response, anti-apartheid activists and their lawyers used every public appearance, every procedural loophole, every legal opening and every conceptual ambiguity the law and its processes offered to thwart apartheid.
As the preparatory examination started in the Drill Hall, the silver-tongued advocate leading the defence, Vernon Berrangé, audaciously took the battle onto apartheid’s territory. He announced 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’. He went on: ‘A battle of ideas has indeed been started in our country, a battle in which on one side are poised those ideas which seek equal opportunities for all, 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.’
His words rang out in media reports in South Africa and across the world. Those accused of treason were putting apartheid in the dock, and shaming it. I read Berrangé’s words years after I became a lawyer. They stirred my pride in what my profession could achieve. Far from being just grey-suited factotums, lawyers could help shape history – on the side of justice and fairness.
Twenty years after the start of the Treason Trial, public interest lawyers continued to embrace these very strategies to counter apartheid. At Wits University, John Dugard in 1978 established the pioneering Centre for Applied Legal Studies (CALS), which created an academic base for practitioners to attack apartheid while seeking to pave the way for a more just legal system. And Felicia Kentridge and Arthur Chaskalson were amongst those who soon after, in 1979, founded the Legal Resources Centre (LRC), a pioneering firm of public interest lawyers, which gained and has sustained enduring international admiration for its work. After three years in commercial and general practice at the Johannesburg Bar, Professor Dugard invited me in 1986 to move my practice to a base at CALS. I was excited to accept. My idea that the law could be more than only a rebuke, a restraint – as it had been to my father – and more than an instrument of oppression and injustice – as it was to millions of black South Africans – was confronted with an exciting challenge. CALS invited me to come and help put my lofty aspirations of legal challenge and reform into practice.
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
