THE TREASON TRIAL —FOREVER?

THE TREASON TRIAL —FOREVER?

FREDA T R O U P

IT is now m o r e than t w o and a half years since 1^6 p e o p l e from all over South Africa w e r e dramatically arrested at dawn and sent by military aircraft and police vehicles to d e t e n t i o n in Johannesburg, t h e r e to lace a tediously sensational trial on charges of high treason.

In that t i m e t h e r e have been starts and stops and starts to proceedings in confusing p r o l i f e r a t i o n ; t h e r e have b e e n adjourn- m e n t s , discharges, quashings, recusal, a t t e m p t s at a p p e a l ; t h e r e have been volumes of evidence, m o n t h s of legal a r g u m e n t , four i n d i c t m e n t s , u n c o u n t e d a m e n d m e n t s , an i n t e r w o v e n refrain of demands for further p a r t i c u l a r s ; and still, at t h e t i m e of w r i t -

ing, t h e trial has n o t yet b e g u n — i n t h e sense that any of t h e accused has yet pleaded.

It w o u l d not be surprising if only the accused and t h e lawyers in t h e case managed to keep any track at all of w h a t is going o n ; in fact, it would be a w o n d e r if many of t h e accused w e r e to k n o w what is happening to t h e m , simple folk as some of t h e m are, living in r e m o t e areas and w i t h o u t t h e p r i c e of a daily n e w s p a p e r to help t h e m follow d e v e l o p m e n t s . It is certainly n o t surprising that t h e reaction of t h e general public swings b e t w e e n :

" T r e a s o n t r i a l ! Is that still o n ? " and t h e fatalistic acceptance that treason trials, like the p o o r , are n o w always w i t h us.

T h e m a n a g e m e n t of the treason trial has been heavily criticised both in South Africa and abroad. T h e correctness of judicial proceedings, of course, has, it is widely agreed, been above question. It is the shifting vagueness of the C r o w n that has c o m e u n d e r fire: the gargantuan mass of undigested material, d o c u m e n t s , speeches, witnesses' evidence w h i c h was b r o u g h t — h o p e , apparently, springing eternal in t h e P r o s e c u t i o n that t h e slow mills of judicial proceedings w o u l d grind all into a valid, acceptable case; t h e dragging in, very obvious in t h e course of the p r e p a r a t o r y examination, of all sorts of afterthoughts—

'Cheesa-Cheesa' l e t t e r s , Mau-Mau, and t h e Evaton bus b o y c o t t — w h i c h w e r e n o t m e n t i o n e d in t h e earlier stages; t h r e e bits of n e w legislation w h i c h palpably affect t h e trial and m a k e t h e defence task m o r e difficult. In t h e event, h o w e v e r , t h e mills of t h e C o u r t have g r o u n d so small that t h e mass of C r o w n material has b e e n w h i t t l e d to a fraction of its original volume (though it remains large enough in all c o n s c i e n c e ) , while all four m u c h -

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a m e n d e d i n d i c t m e n t s (framed with t h e i n d i r e c t assistance of Defence and C o u r t ) have r e m a i n e d w i t h o u t the particulars necessary to m a k e t h e m acceptable. Both of t h e original alter- native charges u n d e r t h e Suppression of C o m m u n i s m Act have had to be j e t t i s o n e d .

T h e Defence has deliberately concentrated on this aspect of t h e case, giving perhaps t h e impression that t h e actual trial is being indefinitely p o s t p o n e d : b u t this is n o t from any lawyer's passion to w i n victory by scoring technical points, b u t because in t h e formless w e l t e r of allegations against the accused, it w o u l d have b e e n impossible to defend t h e m ; o r , if defence had b e e n a t t e m p t e d , t h e case w o u l d have g o n e on forever. N o w t h e C r o w n is c o m p e l l e d to s o m e p r e c i s i o n ; it m u s t tell t h e accused precisely w i t h w h a t each is charged. W h e n the accused c o m e to plead, as a result of these long p r e l i m i n a r y m o n t h s of tussle, they will k n o w exactly w h a t evidence t h e C r o w n relies u p o n in the case against each o n e of t h e m , and they can p r e p a r e to defend themselves accordingly.

T h a t t h e case should have taken this course could hardly have o c c u r r e d to t h e instigators of t h e mass arrests. T h e dawn a c t i o n , t h e secrecy, t h e a t m o s p h e r e of urgency, incarceration,

t h e early a t t e m p t s in t h e F o r t , in Johannesburg, to isolate t h e prisoners from friends, the initial refusal of bail, m i g h t have been e x p e c t e d to create a climate of drama, suspense, danger, in w h i c h , presumably, a shocked and frightened public was ex- p e c t e d to thank a strong, alert g o v e r n m e n t for a timely averting of incipient b l o o d y r e v o l u t i o n .

But t h e day t h e news of t h e arrests b r o k e , c o u n t e r - a c t i o n began. T h e authorities w e r e n o t to foresee that a distinguished, albeit small, g r o u p of bishops, r e t i r e d judges, trade unionists, experts in race-relations, all w e l l - k n o w n at h o m e and abroad, basing t h e i r action on t h e p r i n c i p l e t h a t a p e r s o n is i n n o c e n t until he L proved guilty, w o u l d mobilise South African and overseas public opinion in sufficient strength to form a Fund for t h e defence of t h e accused and t h e assistance of t h e i r families.

W i t h i n t w o w e e k s , all 1^6 accused w e r e released on bail of surprisingly small sums for so dire a c r i m e as high treason, t h o u g h w i t h o n e r o u s limitations o n m o v e m e n t and participation in m e e t i n g s ; while t h e case m a d e w o r l d head-lines ( w h i c h it continues to do with increasingly hostile c o m m e n t ) and t h e unimpeachable names of t h e sponsors of t h e Fund ensured a steady flow of money from all over South Africa and from far

beyond its b o r d e r s .

T h e accused w e r e arrested after t w o o r t h r e e years of intense Special Branch (political p o l i c e ) activity, widespread and indiscriminate raids on offices and h o m e s , industrious n o t e - taking at m e e t i n g s , and dark ministerial forebodings repeatedly expressed in Parliament. T h e y appeared in a preparatory examination before a magistrate, in a specially furnished c o u r t - r o o m in t h e Drill Hall in Johannesburg.

T h e Drill Hall p r o c e e d i n g s , w e r e it n o t that treason is a capital offence, w o u l d have possessed a s t r o n g e l e m e n t of farce.

T h e r e was t h e fantastic cage w h i c h enclosed t h e accused on t h e first day and w h i c h was p r o m p t l y r e m o v e d after angry protests from t h e Defence. This was succeeded by a clubby cosiness:

deck-chairs, c o r r e s p o n d e n c e course l e c t u r e s , cross-words, and k n i t t i n g t h r o u g h t h e sessions; and in a d j o u r n m e n t s , darts, fraternising across c o u r t - r o o m and c o l o u r bar, choir p r a c t i c e and p o k e r .

T h e e x t r a o r d i n a r y m o u n t a i n of evidence accumulated in t h e course of raids included, it will b e r e m e m b e r e d , such n e w s - w o r t h y items as a d r a g o n - e m b r o i d e r e d dressing-gown, a b o o k of Russian recipes, labels (appropriated at meetings) reading

" s o u p - w i t h - m e a t " and " s o u p - w i t h o u t - m e a t " , a schoolboy's essay o n c ' T h e Congress of Vienna, 181 s". Statistics gleaned by zealous r e p o r t e r s s h o w e d t h e C r o w n evidence totalled 2-J million w o r d s and that 10,000 d o c u m e n t s w e r e s u b m i t t e d in s u p p o r t of its case; w r i t t e n evidence and a r g u m e n t filled 8,000 pages, o r as m u c h as w o u l d b e r e q u i r e d by 33 novels. An enthusiast even c o m p u t e d that to listen to t h e r e c o r d e d evidence w o u l d take 3 c h o u r s — t h e equivalent of ig full-length films.

Be that all as it may, a m o t l e y battalion of detectives gave evidence, many from illiterate n o t e s . O n e , alleging an accused m a n had u r g e d , " W e m u s t s h o o t M a l a n " , agreed u n d e r cross- e x a m i n a t i o n that t h e w o r d h e had actually n o t e d , SHEK, was m o r e likely to stand for check than shoot. A m o n g t h e m o r e sensational witnesses w e r e a w h i t e e x p e r t on Mau-Mau and C o m m u n i s m from Kenya, w h o could n o t n a m e a single book w h i c h an aspirant Marxist m i g h t s t u d y ; an African, Magubasi,

1'. . . self-confessed liar and c h e a t ' ' w h o m t h e police b r o u g h t to give evidence from K i m b e r l e y w h e r e , it transpired, h e awaited trial o n charges of fraud; Professor M u r r a y , C r o w n e x p e r t o n C o m m u n i s m , w h o a d m i t t e d w o r d s of his o w n took a place, on t h e tests he applied, beside those of Lincoln, Heine and Shelley as

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' communistic'. There was the sensation of the Cheesa- Cheesa letters, instigation to arson, which the Prosecution attempted to link with the typewriter of one ol the accused in what Mr. V. C. Berrange, lor the Defence, described as "as foul a conspiracy as ever disgraced our courts." These took up days and days of argument and cross-examination, but it is significant that all of this was dropped with much else by the Prosecution and now has no part in the trial.

Mr. O. Pirow, Q.C., appearing for the first time to conclude this stage of the Crown case, maintained that there was a dangerous Communist conspiracy to overthrow the State and replace it by a Communist Peoples' Republic. The Crown case, he said, was based on the Freedom Charter,f which was no theory for the future but something to be translated into "actual, practical politics in our t i m e " , and he asserted that in speeches of the accused their ostensible—or rather, ostentatious—reference to non-violence tended, in fact, to incite violence.

Mr. Berrange, for the Defence, maintained that the extra- parliamentary and non-constitutional methods advocated by the accused had not been proved unlawful; indeed, Crown witnesses stressed that speakers at Congress meetings repudiated race hatred. Referring to the Congress of the People, at which the Freedom Charter was adopted, Mr. Berrange, putting what is probably the crux of the case, said, "Never before in the history of civilized states has it been treated as treason to draw up or adopt in a peaceful gathering a statement of this nature . . . If every concrete proposition in the Freedom Charter were adopted, it would do no more than bring the state of the Con- stitution and the law into line with most Western European countries . . . If its adoption is held to constitute treason it will mean that the most rigid thought control in the world will have been enshrined in our l a w . "

The Drill Hall inquiry, with adjournments, took just over a year, and at the end of it 6^ of the accused were discharged with no case against them (and no compensation for the 13 months' disruption of their lives). The remaining 91 were committed for trial on a charge of high treason, with two alternative charges under the Suppression of Communism Act.

Months of preparation followed. A team of eight counsel was briefed for the Defence, headed by Mr. I. Maisels, Q.C., an advocate with a considerable reputation both within and outside

f See 'Africa South', Vol. J, No. 3.

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South Africa.

T h e trial began on i August, 19/^S, before a Special C o u r t of t h r e e judges appointed by t h e Minister of Justice (who had to authorise this p r o c e d u r e by r e t r o s p e c t i v e legislation), in P r e t o r i a ' s " O l d S y n a g o g u e " , c o n v e r t e d into a C o u r t for t h e p u r p o s e . It o p e n e d dramatically w i t h t h e Defence attacking t h e c o m p o s i t i o n of t h e C o u r t and asking t w o of t h e t h r e e judges to recuse t h e m s e l v e s : M r . j u s t i c e Rumpff (presiding) because t h e Minister of Justice had said in Parliament that h e had consulted Rumpff in t h e a p p o i n t m e n t of his colleagues; and M r . Justice Ludorf because he had, in 19^4, w h i l e still an advocate, acted for t h e Minister in a case in w h i c h some of t h e treason trial evidence was used. These factors had c r e a t e d a reasonable fear in the minds of t h e accused that they w o u l d n o t get a fair trial.

M r . j u s t i c e Ludorf w i t h d r e w from t h e case and was replaced by Judge Bekker, w h i l e M r . Justice Rumpff, denying that h e had in fact been consulted in t h e a p p o i n t m e n t s , declined to w i t h d r a w . O n c e m o r e t h e case o p e n e d , again w i t h surprise tactics.

M r . Maisels, in a 9-^ h o u r attack o n t h e i n d i c t m e n t , applied for it to b e q u a s h e d — o n t h e grounds that t h e charge did n o t disclose any offence, that n o t enough detail was given to enable t h e accused to k n o w w h a t case they w o u l d have to m e e t , and that t h e 91 accused w e r e w r o n g l y j o i n e d t o g e t h e r in o n e trial.

H e said t h e C r o w n ' s a t t i t u d e appeared to have b e e n , " l e t ' s t h r o w in everything t h e police have b e e n able to find and see w h a t comes o u t at t h e e n d . " T h e accused s e e m e d e x p e c t e d to read t h e w h o l e p r e p a r a t o r y examination r e c o r d (40 volumes of 8,000 pages) and all t h e exhibits (nearly 1,000 d o c u m e n t s ) . He p o i n t e d o u t that t h e p h o t o s t a t copies, piled u p , reached a height of 17-Jjr feet. T h e e x u b e r a n t use of t h e w o r d s " a n d / o r "

in t h e i n d i c t m e n t m e a n t , o n an actuarial calculation h e had had d o n e , that each accused faced 4 9 8 , 0 1 £ charges in all. O n t h e basis of t h e C r o w n ' s i n d i c t m e n t , t h e case could go on for years.

Mr. A. Fischer, Q . C . , m a d e a similar attack o n t h e alternative charges u n d e r t h e Suppression of C o m m u n i s m Act. A r g u m e n t altogether lasted for 10 days. T h e C o u r t quashed o n e of t h e t w o alternative charges and o r d e r e d t h e C r o w n to supply t h e Defence w i t h a large n u m b e r of further particulars.

After the m o n t h allowed to t h e C r o w n in w h i c h to supply t h e particulars o r d e r e d , the P r o s e c u t i o n w i t h d r e w t h e second alternative charge and Mr. Pi row announced that they w o u l d rely only on " c o n s p i r a c y " in the remaining charge of treason.

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"If the Crown fails to prove a conspiracy then all the accused go free.'

^,

The Defence maintained that the indictment was still inadequate and that there was still misjoinder. Mr.

Trengrove, for the Crown, had barely begun a defence of the offending indictment, when Mr. Pi row, on behalf of the Attorney-General, abruptly withdrew the entire indictment.

The Court adjourned. These events lasted, with lengthy adjournments, from i August to 13 October, 19^8.

After a month of uncertainty and rumour, the accused were reindicted in two separate groups. The trial of the first group of 30 began before the same Court in Pretoria on 19 January,

1959- This new indictment was in general similar to what was

left of the earlier one after quashing, withdrawal and amend- ments; though the number of the accused was reduced, as.

were the number of documents and the number of meetings, very considerably, and the period shortened from 19^2—-^4 to 19^4—^6. Apparently accepting the Defence contention that violence is an essential element of treason, the Crown put more stress than previously on the element of violence in the case.

There were no alternative charges.

The Defence again opened with an attack—this time on the venue, applying for the trial to be conducted in Johannesburg where all the accused (as well as all defence counsel) lived or lodged. It was argued that the 6 hours, at least, spent in daily travel was a very great hardship, still further reducing the hours of employment open to the accused and making consultations most difficult to arrange. The accused were in consequence prejudiced. Mr. Pirow, citing disturbances which occurred in Johannesburg in the early days of the preparatory examination, opposed the application, arguing that the large cities "are nothing short of dynamite", a view accepted by the judges who did not allow the change.

The Defence made their now routine attack on the indictment and on the Crown's obstinate reluctance to reveal its case. The arguments were similar to earlier contentions—that the indict- ment was inadequate, that there was insufficient particularity, and that there was nothing to support the allegations of violence.

"If there is no case which the Crown can present to the accused

and to the Court in an intelligible form, then there is no case at

all . . . It is vital for the Defence to know from where or what the

Crown infers violence. The task cannot be evaded even if it

can be postponed, and in fairness to the accused it should not be

postponed."

The Court, alter 10 days of argument, refused to quash this second indictment, but again ordered the Crown to supply still further particulars, especially those relating to allegations that the policy of various organisations was violence against the State. The Defence was allowed to refer certain questions of law to the Appeal Court; in particular, whether words can constitute an overt act of treason (is it treason to wage war against the State internally by means of meetings, speeches and writing?), and whether the accused are correctly joined in the indictment. Argument began in the Appeal Court, in Bloem- fontein, on i£ June. The Appeal Judges accepted the Crown argument that the Court could not hear an appeal before the end of the trial and the matter was struck off the Roll.

In the meantime, the remaining 61 accused had been further divided into two groups of 30 and 31 and separately charged in two new indictments (the third and fourth) which differed from each other and the previous one mainly in the dates which they covered. All appeared before the same Special Court on 20 April.

The Crown, on this occasion, clearly expected an immediate postponement until after the hearing of the appeal in the first case, and had provided mere skeleton indictments without the particulars which the Court had previously and repeatedly ordered. The Defence made the strongest possible objection, arguing as before that the indictments were so defective that it was not possible for the accused to prepare their case and that by now the Crown should have realised what details were essential to the charge. The Court, agreeing that they should not have been served in that form, quashed both indictments.

The legal position of the accused at the present time is that the first case against the 30 is adjourned until 3 August, while the 61 are in the position they were in at the end of the preparatory examination 18 months ago, awaiting yet other indictments or formal discharge.

As for their personal situations: there can be nothing but

admiration for the resilience, the solidarity and the courage of

these people on trial for their lives, in the struggle to retain

their jobs, maintain their families and surmount the increasing

obstacles and frustrations that come their way as the trial drags on

and as legislation makes life generally more restricted. Meanwhile,

the public is becoming increasingly aware of the intentions and

implications of these long drawn-out proceedings.