The "Treason" Trials at and Delmas

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Alternative title Notes and Documents - United Nations Centre Against ApartheidNo. 23/86 Author/Creator United Nations Centre against ; MacEntee, Patrick Publisher United Nations, New York Date 1986-10-00 Resource type Reports Language English Subject Coverage (spatial) Coverage (temporal) 1986 Source Northwestern University Libraries Description Mr. MacEntee is Chairman of the General Council of the Bar of Ireland. He observed the "treason" trials at Pietermaritzburg and Delmas, South Africa, from 21 February to 9 March 1986, on behalf of the International Commission of Jurists. The views expressed in this paper are those of the author. Format extent 20 page(s) (length/size)

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http://www.aluka.org UNITED NATIONS

UNITED NATIONS _ CENTRE AGAINST APARTHEID NOTES AND DOCUMENTS* 23/86 October 1986 JAN " THE "TREASON" TRIALS AT PIETERMARITZBURG AND DELMAS Report by Patrick MacEntee, S.C., Q.C. [Note: - MacEntee is Chairman of the General Council of the Bar of Ireland. He observed the "treason" trials at Pietermaritzburg and Delmas, South Africa, from 21 February to 9 March 1986, on behalf of the International Commission of Jurists. The views expressed in this paper are those of the author.] 86-28468 *All material in these Notes and Documents may be freely reprinted. Acknowledgement, together with a copy of the publication containing the reprint, would be appreciated. United Nations, New York 10017

- 2 - PIETERMARITZBURG TRIAL Introduction I arrived at Jan Smuts Airport, , on the morning of 22 February 1986 and immediately departed for . The Pietermaritzburg trial, I was informed, was being conducted in camera and it was thought unlikely that I would be admitted to court. However, I decided to go in any event. On arrival at Pietermaritzburg I made myself known to the two advocates acting for the defence, Mr. Marumo Moerani and Mr. Clifford Mailer. I was duly introduced to the Registrar of the Court and sent my ordre de mission to the presiding judge, Justice John Milne, Judge President of the Natal Division of the Supreme Court, who received me in his chambers and introduced me to the two assessors who were sitting with him. Unusually, Justice Milne was sitting with an Indian and an African, Mr. Amin and Mr. Mishali, respectively a magistrate and an attorney. I explained my difficulties arising from the court being in camera to Justice Milne, who informed that whilst the court was indeed sitting in camera, he had made an order permitting the press to be present provided they did not report anything that might lead to the witness, who was then giving evidence, being identified. Justice Milne further explained to me that he had conducted an inquiry and had heard evidence from which he was satisfied that the witness was in danger of being assassinated should his identity become known. I told the judge that I was perfectly happy to be bound by the same degree of discretion as the lawyers acting in the case for the defence, and Justice Milne said that he would discuss the matter with counsel acting on both sides of the case and that unless any of them objected to my being present, he was disposed to facilitate my attendance. Justice Milne, I understand, called counsel into court, explained my position to them, and asked them if they had any objections to my being present. Neither party had any objection and accordingly he made an order allowing me to attend. Before seeing Justice Milne I was introduced to prosecuting counsel, Mr. J. A. Oberholster and to Mr. Chris Meiring. Mr. Ishmael Mohammed, S.C., appeared in the case as a consultant, that is to say, he attended for crucial cross-examinations and submissions, leaving the routine running of the case to Mr. Moerani and Mr. Mailer. Background to the trial in Pietermaritzburg At the beginning of this trial there were 16 accused. The accused were all members of one of the most important opposition groups in South Africa

-3 - - the United Democratic Front (UDF). UDF was organized in 1983 to spearhead and co-ordinate opposition to the proposed new "constitution". The new system of government by the ruling Nationalist Party gave limited participation rights to South Africa's Indian and Coloured population whilst continuing to exclude from participation the 73 per cent black majority. The tricameral parliament was established guaranteeing the white monopoly of power. The elections for the said new "constitution" were held on 22 and 28 August 1984. UDF is essentially an umbrella organization with a very large number of constituent organizations ranging from trade unions through vocational groups to comparatively small local organizations of a sports and cultural nature. The tactics employed by UDF in opposition to the new "constitution" were peaceful and legal. Nonetheless, throughout the campaign they attracted constant police harassment: activists were assaulted, pamphlets and petition forms were confiscated and canvassers were arrested. UDF support meetings were banned and election meetings dispersed. On the election days themselves police used teargas and batons against both the demonstrators and the journalists covering the event. On 21 August 1984, the eve of the elections, South African security police arrested leading members of UDF together with individuals from other organizations that had actively opposed the new "constitution". Amongst those arrested were Mawalal Ramgobin, Chanderdeo Sewpershad, M. J. Naidoo, Essop Essack Jassat, Dundubela Aubreay Mokoena, Archibald Jacob Gumede and Ephraim Curtis Nkondo. They were detained initially under section 50 of the Internal Security Act, No. 74 of 1982 (which permits a police officer to arrest without warrant anyone whose actions he believes are contributing towards "the continuance of a state of public disturbance, disorder, riot or public violence"). A person so arrested can be held incommunicado for 48 hours, following which he or she must be released or detained under a warrant in terms of section 50, subsection 1B, of the Internal Security Act, which provides for such detention where "the detention of a particular person will contribute towards the prevention of the resumption at the same place or at any other place in the Republic of such a state of public disturbance, disorder, riot, or public violence". Within 24 hours of their detention the above-mentioned accused were served with six-month preventive detention orders under the provisions of Section 28 of the Internal Security Act. Section 28 permits the Minister of Law and Order to detain a person he suspects is likely to commit an act endangering the maintenance of law and order, or is likely to promote such acts. The Minister's order, delivered to each of the detained UDF leaders, stated simply that the person was detained pursuant to section 28 (1) of the Internal Security Act because the Minister believed "that the said person engages in activities which endanger the maintenance of law and order". In each case the Minister alleged that "by acts and utterances the said person did himself and in collaboration with other persons attempt to create a revolutionary climate in the Republic of South Africa thereby causing a situation endangering the maintenance of law and order". The detention orders were challenged successfully in the courts and were set aside on 7 September 1984 for lack of specificity. New detention orders were immediately issued in remarkably similar terms. These new orders were in turn challenged, but (this time) unsuccessfully.

-4 - In December 1984 the preventive detention orders were withdrawn by the Minister for Law and Order, but the detainees were immediately charged with high treason and were remanded in custody for trial. Other prominent members of UDF were swept up in police raids on 19 February 1985. On that date, the homes and offices of UDF members and affiliates were raided and searched and documents and records were confiscated. Other arrests were carried out later in February and eight other UDF and union leaders were charged with treason. In respect of both the eight persons charged with treason in December 1984 and those arrested and charged in February 1985, the Attorney General issued certificates under the authority of section 30 of the Internal Security Act ordering the court to deny bail. These certificates were overturned by the Supreme Court of South Africa, Natal Provincial Division, and all 16 defendants were admitted to bail in the amount of R 170,000. The defendants were required to report twice daily at specified police stations; to refrain from leaving their specified magisterial district without the permission in writing of the Attorney-General; to surrender any passports or travel documents; and to refrain from leaving his or her place of residence between the hours of 9 p.m. and 6 a.m. In addition, each of the defendants was prohibited from attending or addressing any gathering of any organization mentioned in the indictment or that of any affiliated organization. Indictment The indictment was delivered on 25 April 1985. It consisted of 587 pages and was in three volumes. In it, the State alleged that the defendants had, over the period of the previous four years, acted to further the aims of a number of banned organizations to "overthrow the State" and were accordingly guilty of high treason. As alternative to the main count of common law treason, the defendants were charged with a number of statutory offences. Count 1 charged all 16 with terrorism; count 2 charged several accused with participation in terrorist activities; count 3 charged all with committing acts calculated to further the objectives of the African National Congress of South Africa (ANC) and the South African Communist Party, both unlawful organizations; count 4 charged a number of the accused with the performance of acts calculated to achieve communism; and count 5 charged several accused with the performance of acts calculated to achieve the objectives of ANC. The offence of treason carries a possible death penalty. The treason count charged an alleged conspiracy between the defendants and a number of banned organizations, that is to say, the South African Allied Workers' Union (SAAWU), the (NIC), the Transvaal Indian Congress (TIC) and the Release Mandela Committee (RMC). The indictment alleged that the objective of the conspiracy was to further the aims of an alleged organization termed the "Revolutionary Alliance", said to have been formed between the banned ANC and the banned South African Communist Party, together with the South African Congress of Trade Unions (SACTU). The indictment contended that ANC, the South African Communist Party and SACTU had aligned themselves in a revolutionary alliance (hereinafter referred to as the "Revolutionary Alliance") in order to further the aims of overthrowing the Government. Specifically, SACTU was allegedly endeavouring

-5 - to overthrow the Government: "To create a trade union consciousness amongst the workers, to raise that consciousness to the level of political and class consciousness, with the ultimate aim of creating a revolutionary consciousness; "To organize unemployed workers in the Republic in an Unemployed Workers Union in order to strengthen the trade union movement by preventing the unemployed from taking over the jobs of striking workers, thereby creating a political instrument to promote the unity of the working class in order to cripple, prejudice or interrupt industries or undertakings generally in the Republic; "To organize all trade unions into industrial unions in order to facilitate the co-ordination of nationwide strike and boycott actions within the same industry, in order to cripple, prejudice or interrupt industries and undertakings generally in the Republic." In substance, the indictment alleged that: "The Revolutionary Alliance has used and is using the National Executive Committee of UDF and/or other leaders of UDF to carry out its tactical programme (specifically points ... listed above); "The South African Allied Workers' Union (SAAWU) had implemented and propagated the constitution and Declaration of Principles of SACTU, and sought to further the aims and objectives of SACTU; "The Natal Indian Congress (NIC) and Transvaal Indian Congress (TIC), as former affiliates of the South African Indian Congress (SAIC) whicn, together with ANC and other organizations, had formed the Congress Alliance and were co-signatories with them of the Freedom Charter, were committed to the objectives of the Congress Alliance as laid down in the Freedom Charter. Through their identification with the Congress Alliance, which shared the same violent objectives of the Revolutionary Alliance, the NIC and TIC were committed to the tactical programme of the latter (specifically points ...); and finally, "The Release Mandela Committee (RMC), in calling for the unconditional release of all political prisoners, the end of the banning and detention systems, the return of all exiles, and the holding of a national convention for the creation of a 'so-called true, non-racial, democratic society', has identified and associated itself with the Revolutionary Alliance, in particular with ANC. By popularizing the symbols of the Alliance and its programme (the Freedom Charter), RMC has aimed to create a favourable climate for the Alliance and so further its aims and objectives.

-6 - "Each of the accused is alleged to have, by actions or omissions or both, conspired with the Revolutionary Alliance, its members and/or supporters, with the other accused, with a number of specified individuals, with speakers, organizers and/or participants in various meetings, for the purpose of furthering the aims of the Revolutionary Alliance and those unlawfully and with hostile intent to overthrow the State or coerce or endanger the Government of the Republic." The indictment listed a variety of public meetings attended or addressed by the several accused and details of what they were alleged to have said or approved of being said at those meetings as the other acts evidencing the treasonable conspiracy. The State also relied on statements made by others, as well as on signs, slogans and gestures made or shouted at meetings. The lists also contained details of the publications that the accused were alleged to have produced. There were no allegations of specific acts of violence nor of membership of ANC or the South African Communist Party by any of the accused. Particulars of the accused The following are the particulars of the original 16 accused: 1. Mawalal Ramgobin 2. Chanderdeo Sewpersadh 3. M. J. Naidoo 4. Essop Essack Jassat 5. Dundubela Aubreay Mokoena 6. Ephraim Curtis Nkondo 7. Archibald Jacob Gumede Vice-President of NIC, National Treasurer of UDF and member of RMC Member of the Executive Committee of RMC Natal, President of NIC and Vice- President of UDF Vice-President of NIC, Chairman of the Anti-South African Indian Council Committee (Natal), member of the Executive Committee of RMC and member of the Yusuf Dadoo Memorial Committee Executive member of the National Medical and Dental Association, President of the Transvaal Indian Congress in 1983 and patron of UDF Secretary of the Transvaal Branch of RMC and a member of the National Executive Committee of UDF Vice-President of UDF, Transvaal, and Chairman of RMC, Transvaal Chairman of the Natal branch of RMC and a member of its co-ordinating committee, President of UDF and member of the Executive Committee of NIC

-7- 8. Devadas Paul David 9. Albertina Montsikelelo Sisulu 10. Frank Chikane 11. Ebrahim Ahmed Saloojee 12. Ismael Jacobus Mohamed 13. Thozamile Gqweta 14. Sisa Njikelana 15. Samuel Bhekuyise Kikine 16. Duze Isaac Ngcobo Secretary of RMC, Natal, member of the Executive Committee of NIC and member of the Yusuf Dadoo Memorial Committee President of UDF and an active member of RMC Vice-President of UDF, Transvaal Vice-President of TIC and National Treasurer of UDF Member of the Co-ordinating Committee of RMC, member of the Executive Committee of TIC, Chairman of the Anti-P.C. Council and member of the Executive Committee of UDF, Transvaal National President of SAAWU Former Vice-President and the current General-Secretary of SAAWU Former Vice-President and current General-Secretary of SAAWU, Durban Branch At all relevant times was Treasurer of SAAWU The four men still on trial are Thozamile Gqweta, Duze Isaac Ngcobo, Samuel Bhekuyise Kikine and Sisa Njikelana, and I set out hereunder more detailed particulars of them. Thozamile Gqweta He works full-time for SAAWU and is a member of the UDF National Executive Committee. Since 1980 he has suffered a string of detentions and torture at the hands of the security police for his trade-union work. He has been instrumental in building SAAWU into one of the fastest growing non-registered black trade unions in South Africa. He was detained by the Ciskei police in April 1980 and released without charge after a month. Detained again in August 1980 by the South African police, the charges were again dropped. In November of the same year, he was detained for a further period by the Ciskei police. In June 1982, he was detained for three months and detained again after being released for two weeks. During the further period, his girlfriend, the mother of his child, was shot dead by the Ciskei authorities, and his mother and grandfather were burned to death in a mysterious fire at their home. He was also admitted to hospital during the period for psychiatric care. In May 1982, he was detained once more and again for a two-week period in March 1983 by the Ciskei authorities. After this he went into hiding.

-8- He was arrested by the Ciskei police in February 1985 and then handed over to the South African police to stand trial for "high treason". Duze Isaac Ngcobo He is married with five children between 2 and 16 years of age. He worked in the Durban branch of SAAWU, and suffered two periods of detention, in January 1982 and in August 1984, as a result of his trade-union activities. On 19 February 1985, he was arrested and charged with treason, to join 15 other people then to stand trial on those charges. Samuel Bhekuyise Kikine He is married with two children and was formerly the General-Secretary of the Natal branch of SAAWU. He has been detained several times in the last 10 years. In , he was detained under section 6 of the Terrorism Act and brought to court eight months later. The charges were dropped after a 30-minute court appearance. He required psychiatric help as a result of the treatment he suffered during his prolonged detention. On leaving court, he was immediately redetained and the charges were dropped a month later. He was detained again on 21 August 1984 in the nationwide arrest of UDF activists and after his release in September 1984 he went into hiding to avoid redetention. He was arrested again on 19 February 1985 and charged with high treason. Sisa Njikelana He joined SAAWU in 1979 and has worked in many capacities, sometimes as a full-time official, since 1980. He was elected General-Secretary of the union in 1984. SAAWU work has brought him at least seven major periods of detention since 1980, four times by the South African police and three times by the Ciskei authorities. In 1982, on the eve of the "independence" of the Ciskei, he was arrested and charged with high treason although the charges were later dropped. He has suffered ill-treatment at the hands of both police forces and was held in solitary confinement from December 1981 to May 1982. He was arrested in the wave of arrests on 19 February 1985 and charged with high treason. Tribunal The tribunal consisted of Justice Milne, sitting with two assessors. The assessors in this case were Mr. Amin, a magistrate of Indian origin, and Mr. Mishali, a black African attorney. The choice of assessors lay with the presiding judge. Juries have been abolished in South Africa, but in cases where there is a possible death penalty two assessors are required and must be legally qualified. Their power is the same as the judge's in matters of fact, but they have no function in respect of questions of law. I was told that it is unusual, if not unique, to find such a racially mixed tribunal. Prosecution and defence advocates Whilst originally the 16 accused were represented by a large number of attorneys and advocates, the 4 remaining accused were represented by Mr.

-9- Moerani of the Durban Bar and Mr. Mailer of the Johannesburg Bar, instructed by Ms. Priscilla Jana and a representative of the firm previously headed by the late Mrs. Victoria Mxenge. Mrs. Mxenge was assassinated at an early stage of the trial, and her assassins have not been brought to justice. Mr. Ishmael Mohammed, S.C., of the Durban Bar, remained in the case as a consultant advocate. However, Mr. Moerani and Mr. Mailer were looking after the day-to-day conduct of the case. The prosecution was represented by Mr. J. A. Oberholster and Mr. Chris Meiring, both experienced members of the Outer Bar. Trial The trial opened in October 1985, and the first witness was Mr. Izak Daniel de Vries. Mr. de Vries held himself out as being a student of revolution, and as far as I have been able to ascertain the prosecution sought through Mr. de Vries to establish the existence of the "Revolutionary Alliance" referred to in the indictment. He claimed to have academic expertise in interpreting revolutionary "symbols" and sought to convince the court that by a study of material derived from various meetings, publications, songs and gestures of the organizations of which the accused were members, he could arrive at a firm conclusion as to the existence of the treasonable conspiracy contended for in the indictment and participation of each of the accused therein. Lengthy, painstaking and penetrating cross-examination by Mr. Mohammed resulted in Mr. de Vries accepting that his theory of revolution was seriously faulty, and that the theoretical basis of his conclusions was not sustainable. He appeared to have been so completely discredited by Mr. Mohammed's cross- examination that the Attorney-General decided even before the cross-examination was completed to discontinue the prosecution against the first 12 accused and to continue only against the last 4. Mr. Gqweta, Mr. Ngcobo, Mr. Kikine and Mr. Njikelana are all important members of SAAWU. They were amongst the last people to be joined in the present indictment and the case being made against them rested, as far as could be ascertained, on the evidence of police informers and persons who have been in detention for very considerable periods of time. Portion of the trial actually observed The portion of the trial that I actually attended consisted of the examination and cross-examination of the witness "S". Before this witness was called to the witness box to give evidence and after hearing evidence and argument, Justice Milne ruled as follows: "(a) While the witness S testifies, no member of the public will be admitted to be present, save for representatives of the press; "(b) The identity of S may not be revealed at any time nor any facts which may reveal the identity of S. This includes, but is not limited by, the name, sex, appearance and any identifying features of S;

- 10 - "(c) If at any stage whilst S is testifying counsel indicates that the content of S's evidence may reveal the identity of S, then such evidence may not be published in any manner until the court has expressly and specifically authorized the publication thereof." In making this ruling Justice Milne said: "I am always reluctant to hold any court proceedings in camera, as I believe justice must be an open process. Like all general rules, however, there are exceptions to this principle. An obvious example of such an exception is when the security of the nation would be in jeopardy by evidence given in open court, like the Jebhart spy case, which was heard not long ago by the Judge President of the Cape, and the Cyprus spy trial in the United Kingdom, most of which, it is said, was heard in camera." Early in the cross-examination by Mr. Mailer the witness said that she/he had an agreement with the South African authorities to give her/him indemnity from prosecution and to employ her/him as a police officer in the area of external intelligence! A written agreement to that effect was subpoenaed by the defence, but was not produced whilst I was in attendance. The evidence of this witness concerned people whom she/he had met and incidents that had occurred during a brief period that she/he spent at a place abroad. The witness claimed to have encountered there certain of the accused and to have seen documents indicating that the accused's presence there was treasonous. Close cross-examination by Mr. Mailer revealed not only that the witness had been an accomplice and had done a deal with the authorities in return for immunity, but that her/his evidence was internally contradictory and inaccurate. For example, it emerged that in another trial, where the witness had previously given evidence, she/he had said she/he was in the place abroad for a much shorter time than she/he was now maintaining. Moreover, in the other trial, she/he had maintained that she/he left the place abroad on a date well before that on which she/he now maintained that she/he had seen one of the accused there. In the course of her/his cross-examination the witness complained that counsel for the defence (Mr. Mailer) was using information for the purpose of character assassination, and maintained that the nature of the evidence indicated that counsel could only have that information if he had revealed to ANC the identity of the witness and the fact that she/he was giving evidence. A legal argument ensued, during the course of which the witness was excluded from court. During an adjournment in the course of the legal argument, I and one of the solicitors for the defence saw the witness in earnest conversation with prosecuting counsel and Special Branch policemen in a room used exclusively by the prosecution. The defence complained to the judge about prosecuting counsel speaking to the witness whilst she/he was being cross-examined, and prosecuting counsel maintained that they had not discussed the substance of her/his evidence with her/him. On the question of counsel's right to pursue cross-examination, the judge ruled that he did not understand his order as precluding the defence from finding out about the witness, provided such inquiries did not reveal the actual identity of the witness and the fact that she/he was giving evidence.

- 11 - The witness also gave evidence of the chanting of slogans and the singing of freedom songs by the accused in the company of other persons at the place abroad. Mr. Moerani cross-examined the witness on the content of those songs and slogans and established the traditional nature of antiphonal singing in African culture. Both Mr. Mailer and Mr. Moerani cross-examined with considerable acumen and to great effect, and succeeded in casting grave doubts on the credibility and reliability, as well as accuracy, of the witness. Mr. Moerani's cross-examination was continuing when I was compelled by my schedule to leave Pietermaritzburg. Conduct of the trial The portion of the trial that I witnessed and those portions of the transcript that I read indicate a trial conducted with both sensitivity and fairness by Justice Milne. The evidence was presented in an orderly fashion, cross- examination was searching and to the point, and judge and assessors treated counsel and witnesses with great courtesy and consideration. The standard of legal argument was impressive. It was obvious from the attitude of the judge and the assessors that they were receiving the evidence with open minds. Nonetheless, one could not overlook the fact that the legislative framework within which the trial was taking place, and particularly the provisions of the Internal Security Act (No. 72 of 1982), were heavily weighted against the accused and struck at the very heart of the concept of fair trial. Neither can one overlook the fact that the great bulk of the accusations brought against the accused related to matters that would, in a less repressive State, be protected under constitutional or legal provisions securing free speech and the right to organize democratic opposition to the party in power. One must also be uneasy about the protracted nature of the proceedings. Some of the arrests occurred in December 1984. The indictment was delivered on 25 April 1985. A preliminary hearing on the adequacy of the indictment was held and judgement on this issue was delivered in September 1984. The trial proper began in October 1985 and was discontinued as against 12 of the accused on 8 December 1985. It was resumed as against the remaining four at the beginning of Hilary Term, and when I left was set to continue for a very considerable length of time. Whilst the accused in this case were on bail, there was very grave inconvenience in their having to be present at Pietermaritzburg daily. It is obvious that this criminal process effectively prevented them from taking part in any opposition politics, and one cannot help suspecting that the scope of the trial was not unrelated to a desire to immobilize political opponents and particularly political opponents with strong trade-union bases. I wish to acknowledge the courtesy with which I was received by Justice Milne and his assessors, and the very real assistance given to me by the judge.

- 12 - DELMAS TRIAL Introduction On Friday, 28 February 1986, I flew from Durban to Johannesburg where I was met at the airport and driven to my hotel. The indictment in the Delmas trial awaited me. On Monday morning I was driven to Delmas for the trial of 22 persons for treason, terrorism, subversion and murder. Background to the Delmas trial The launching of UDF had profound effects on both black and white communities within South Africa. In the area of the Transvaal known as the Vaal Triangle residents of black townships set up a Civic Association affiliated to UDF and joined a campaign against the black local authorities who were then being introduced. In the local elections of November 1983 only 2 per cent of the residents of Vaal voted for the town council. The boycott of local elections was widespread. Rent increases were the most pressing civic issue in Vaal at that period. Local government candidates had promised to keep rent increases at a low level. However, between the elections and June 1984 there were two significant increases, and in August 1984 the town council announced a R 5.90 increase with effect from 1 September 1984. This proposed increase gave rise to widespread dissatisfaction. The Vaal Civic Association called a series of community meetings to seek the community's mandate on the issue of the proposed rent increase. At the meetings it was decided to march on the offices of the Orange/Vaal Administration Board on 3 September and protest against the R 5.90 increase. On Monday, 3 September 1984, Vaal residents did not go to work but instead, after gathering at the local Roman Catholic church, proceeded to march on the administration offices. They carried placards stating Oasinamali" (i.e. "We do not have money"). The march was intercepted by a riot squad. A disturbance ensued and the properties of certain councillors were attached, government property was damaged and five people were killed, four of them councillors. Widespread arrest and detention of Vaal Civic Association leaders followed and to their number were added some UDF leaders before the trial began. Charges On 11 June 1985, 22 people were charged in the Magistrates' Court with high treason, terrorism, subversion and five counts of murder. In November 1985 the State added a further charge of furthering the aims of ANC, a proscribed organization. All the defendants, despite repeated attempts, had been refused bail and were held in Pretoria prison. The trial opened in Delmas on 20 January 1986.

- 13 - Venue Delmas is a small, isolated town in the Eastern Transvaal, some 80 miles north- east of Johannesburg. The venue seems to have been chosen because of its remoteness, so as to prevent any show of community support for the defendants. The earlier proposal to hold the trial at an even more remote venue, Bethel, was abandoned. Particulars on the accused Mosiuoa Patrick "Terror" Lekota, 38, is the Publicity Secretary of UDF. He is a member of RMC and a former member of the South African Students' Organization (SASO), which was banned in 1977. He had been previously detained from August 1974 to February 1975 and was imprisoned on Robben Island from 1976 to 1982 following his conviction for "endangering the maintenance of law and order". He is married, with two children and was detained in April 1985 and then charged with the other 21 in June. Popo Simon Molefe, 33, is the General Secretary of UDF and a member of the Civic Association. He is also a former member of SASO and the General and Allied Workers' Union. Married, with three children, he was detained in April 1985 and then charged in June. He had been previously detained for over two months in 1976 and again in 1984. Reverend Tebego Jeff Moselane, 39, is a senior Anglican priest in the Church of the Province of South Africa and Rector of Sharpeville. He is married, with three children and had been detained previously, for three months in 1977 and 1978. He was detained in October 1984 and charged in June 1985. Moses Mabokela Chikane, 37, is a former official of UDF and presently a member of RMC and Mamelodi Action Committee, both of which are affiliated to UDF. He is a former member of SASO. Previously detained on four occasions in 1976, 1977, 1980 and 1984, he is employed as a field worker by the Community and Resources Centre. He is married, with one child and is a member of the Catholic Church. He was detained in April 1985. Thomas Madiikkle Manthata, 45, is a field worker with the South African Council of Churches and a member of the Soweto Civic Association (a UDF affiliate). He was previously a member of SASO and the Black Peoples' Convention. Married with three children, he had been detained on three previous occasions, in 1974/75, 1976/77, and 1977/78. Mkhambi Amos Malindi, 25, is Secretary to the UDF-affiliated Vaal Youth Congress and a former member of the Congress of South African Students (COSAS). He was employed as a time-keeper in a power station and is married, with one young child. He was detained in September 1984 and not charged until the following June, with the other defendants. Sekoati John Mokoena, 34, one of a family of 10, is the Secretary of the Boipatong Residents' Committee. A member of the Anglican Church, he was detained from January to April in 1977 and charged with arson but not sentenced.

- 14 - Jerry Pelamotse Tlhopane, 26, was an organizer of COSAS. He was previously detained from October 1981 to October 1982. He was detained in September 1984 and charged the following June. Tseko Simon Nkoli, 26, is a co-ordinator in Gay Association of South Africa (GASA) and a member of the UDF-affiliated Detainees Support Committee. He was formerly a member of the Young Christian Workers and General Secretary of the Vaal branch of COSAS. Previously detained for five months, he was acquitted of a charge of "public violence". His father died just prior to his detention in September 1984. Mohapi Lazarus More, 25, is currently a member of the Sharpeville Pirates Football Club and a former member of the Engineering and Allied Workers' Union of South Africa. He is married, with one child and has suffered since September 1984 from the continuing presence of a bullet at the back of his spine. He was employed as a co-ordinator with Learn and Teach in Johannesburg and Sebokeng before being detained and then charged in June 1985. He is a member of the Apostolic Church. Ephraim Ramagola, 35, is currently Vice Treasurer of the UDF-affiliated Vaal Civic Association and a member of the St. Paul Apostolic Church. He is married, with four children and is an electrician by trade. David T. Mphuthi, 48, is a member of the Vaal Civic Association and of the Roman Catholic Church. At the time of his detention in November 1984 he was looking after his mother and a 12-year-old sister and was out of work. He was charged with the other 21 in June 1985. Hlabeng Sam Matlole, 61, is a member of the Vaal Civic Association and was employed by Apex Dry Cleaners in Westdene. He is married, with five children and has suffered for some years from blood pressure, kidney and bladder problems, for which he is not receiving adequate treatment. Serame Jacob Hlanyane, 37, is an official of Zone 3 Committee of the Vaal Civic Association and is an electrician by trade. He is married, with two children and has a dependant relative. John Oupa Hlomuka, 32, is Branch Chairman of the Azanian Peoples' Organization and was employed by the African Life Assurance Company. He is married, with two children and is a member of the Methodist Church. Bavumile Herbert Vilikazi, 30, is the Assistant Secretary of Vaal Civic Association and is a member of the African Methodist Church. He is employed as an educator with the Urban Training Project. Married with one young child, he was detained on 12 December 1984 and not charged until June 1985. He is believed to be in poor health. Gcinumuzi Petrus Malindi, 20, is presently Chairman of the Church Youth Committee and a former Chairman of COSAS. From a family of nine, he was previously detained under the Internal Security Act in 1981 and 1982. He was detained in September 1984 and not charged until the following June. Simon Vilakaze, 24, is a member of the Vaal Civic Association and the Vaal Youth Association. Formerly a member of the Vaal Action Committee and of COSAS, he was detained in January 1984 and then again in April 1985 to be

- 15 - charged in June with the 21 others. He is a member of the Methodist Church, and has a previous conviction for possession of banned literature. Naphthali Mbuti Nkopane, 41, is a member of the Vaal Civic Association. (Chairman of Area Committee, Zone 3) and worked as a stock controller before his arrest to stand trial in Delmas. He is married, with three children, and is a member of the Dutch Reformed Church. Patrick Mabuya Baleka, 26, was an organizer with the Azanian National Youth Unity and a member of the Azanian People's Organization. A member of the Anglican Church, he was previously detained for 14 days in March 1983 before his present detention and charge. Morake Petros Mokoena, 46, Secretary of Evaton Ratepayers' Association and a self-employed caf6 owner, is married, with six children. He has suffered from high blood pressure and tinnitus since 1974. He is a member of the Black Reformed Church. Thabiso Andrew Ratsomo, 28, was a student at Rhodes University at the time of this detention and President of the Black Students' Movement, which is affiliated to ASASO, an affiliate of UDF. He was formerly a member of the banned South African Students' Movement and the Vaal Civic Association. He was previously detained for a month in 1977 and for nine weeks in 1978. He was also imprisoned for 50 days in 1977 and for five years from June 1978 for "sabotage". He was detained in April 1985 to face charges in June together with the other 21 people. Tribunal The trial was being held in the Supreme Court of South Africa, Transvaal Provincial Division, before Justice Van Dijkhurst, sitting with two assessors, W. J. Krugel, a Chief Magistrate of Northern Transvaal and Professor W. A. Joubert, a professor of law. The State was represented by B. P. Jacobs, P. Fick and W. Hanekom. Counsel for the defence were Arthur Chaskalson, SC, George Bizos, SC, Karol Tip, Zak M. Yacoub and G. B. Marcus, all of the Johannesburg Bar. Counsel were instructed by attorneys Bell, Dewar and Hall, Priscilla Jana, Ismael Ayob and Kathleen Satchwell. In contrast to the Pietermaritzburg trial, both assessors were white. Indictment The indictment, and the particulars that followed it, was vast but in essence charged each of the accused with participating in a conspiracy of ANC, the South African Communist Party and UDF to overthrow the State by violence. It was not contended that any of the accused had any direct contact with ANC or the South African Communist Party, but the State asked the court to infer knowledge of and participation in the conspiracy from their activities and those of their organizations. Alternatively, the accused were charged with three separate charges of terrorism and alternatively to the charges of treason and terrorism, with two charges of subversion and five charges of murder. The charge of terrorism set out on page 22 of the indictment was particularly revealing. It alleged that ANC and the South African Communist Party had:

- 16 - "Striven to realize the objects as set out in the preamble to the indictment and also one or more or all of the following objects: (a) That a campaign be conducted against the Government's policy in respect of the new constitution and tricameral parliamentary system; (b) That campaigns be conducted against the Government's policy and legislation in respect of black local authorities and so-called Koornhof-bills; (c) That a campaign be conducted in the Republic of South Africa against the Government's policy and legislation in respect of removals and resettlement of population groups and also group areas; (d) That a campaign be conducted in the Republic of South Africa against the Government's policy and legislation in respect of housing for persons of other colours; (e) That a campaign be conducted in the Republic of South Africa against the Government's policy and legislation in respect of general sales tax and the escalation of the cost of living; (g) That campaigns be conducted in the Republic of South Africa against the Government's policy and legislation in respect of black education; (h) That campaigns be conducted in the Republic of South Africa against the Government's policy and legislation is respect of separate development, black homelands and in events in, for instance, the Ciskei; (i) That campaigns be conducted in the Republic of South Africa against the Government's policy and legislation is respect of military actions, the South African Defence Force and National Service; (j) That campaigns be conducted in the Republic of South Africa against the Government's policy and legislation is respect of military actions and South West Africa/Namibia; (k) That campaigns be conducted against so-called imperialism by countries such as the United States of America, the United Kingdom of Great Britain and Northern Ireland and Israel and the political isolation of the Republic of South Africa) (1) That campaigns be conducted in the Republic of South Africa against the Government's policy and legislation is respect of detentions in terms of security legislation, political prisoners and political refugees; (M) That campaigns be conducted in the Republic of South Africa against the Government, the white population, the courts of law and other security forces on account of so-called harassment and oppression; - 17 - (n) That campaigns be conducted in the Republic of South Africa to popularize the Freedom Charter amongst the black masses; (0) That campaigns be conducted in the Republic of South Africa to popularize ANC in the Republic of South Africa amongst the black masses; (p) That campaigns be conducted in the Republic of South Africa to popularize the leaders of ANC, political refugees and political prisoners amongst the black masses in the Republic of South Africa; (q) That terror, violence and revolution in the Republic of South Africa be popularized especially amongst the black masses; (r) That so-called heroes of ANC and the South African Communist Party be popularized in the Republic of South Africa especially amongst the black masses; (s) That a so-called national convention in the Republic of South Africa be popularized especially amongst the black masses." One might be forgiven for thinking that, with the exception of (q), the above 19 objects would be legitimate purposes of an opposition party in a democratic State! The accused have been notified that the State proposed to call 220 named witnesses and certain other witnesses whose names and addresses were withheld in terms of section 144 of Act No. 51 of 1977. The State relied on evidence derived from taped telephone conversations, recordings and video recordings of meetings of various organizations, and from informers and alleged accomplices who have been given immunity. It was believed that the State proposed to use a substantial number of persons who were detained in terms of the Internal Security Act and defectors from ANC and other organizations opposed to the apartheid r4gime. Consideration of the indictment and further particulars furnished by the State indicated that the strategy of the prosecution was to use the disturbance and deaths of 3 September 1984 to discredit as many anti-government organizations as possible and in particular UDF. What one would have expected to be a murder case in which those concerned either directly or indirectly in the killings of 3 September 1984 were tried, was in fact being used to discredit all active opposition to the Government, and the treason, terrorism and subversion counts were the device, the net, used to catch all opposition. Bail position Many of the accused have been in detention since September 1984. On 18 October 1984, a full bench of the Pretoria Supreme Court refused bail after considering affidavits from the accused, as well as from the Transvaal Attorney- General. The Attorney-General's affidavit averred that the release of the accused would imperil the safety of the State. The accused were told by the court that they were free to apply again "if there is greater stability in the country in the months ahead".

- 18 - Whilst I was in South Africa the state of emergency then applying in certain magisterial districts in South Africa was terminated, and steps were taken to bring a fresh bail application on the basis of the "greater stability" evidenced by the termination of the state of emergency. The application was not successful. Consequently, all 22 remained in custody and were likely to be there until the end of what was expected to be a most protracted trial. Case before my visit It would appear that all witnesses of substance had given evidence before my arrival at Delmas. These comprised two former members of ANC, two white policemen, one black policeman, one interpreter, neighbours of the deceased councillors and a political commentator. The purpose of the evidence by the prosecution was to establish that the deaths of 3 September 1984 were directly attributable to and arose out of a concerted plan by the several organizations named in the indictment to bring about a violent and bloody revolution in South Africa. Portion of the trial actually observed I attended the trial at Delmas during the week beginning Monday, 3 March 1986. I was received with courtesy by Justice Van Dijkhurst, who introduced me to his assessors and entertained me to tea. I also met and had brief conversation with prosecuting counsel. Defence counsel entertained me to lunch daily and arranged for my transport to and from Delmas each day. In particular, Mr. George Bizos went to great lengths to facilitate my mission, but each member of the defence team gave me substantial assistance, for which I am very thankful. As the Pietermaritzburg, I met and spoke with the accused and I believe that my presence as an observer at their trial was considered significant and helpful to them. On Monday, 3 March 1986, Mrs. Winnie Mandela was present at the trial and spoke with the accused, and her visit seemed to affect the prisoners greatly. The week was taken up with evidence from two witnesses, Peter Mohapi and the Reverend Jacobus Luma Mhlatsi. The evidence of both witnesses related to meetings of organizations that had occurred prior to 3 September 1984 for the purpose of planning the demonstration on that date and to the events of 3 September. Both witnesses were cross-examined by Advocate Bizos and from the cross-examination and the submissions of Mr. Bizos in relation to certain matters that he sought to have struck from the record it became clear that the essence of the defence case was that contrary to what the State contended, the violence and deaths of 3 September 1984 did not result from fore-planning by the Vaal Residents' Association, UDF or any other organization, but resulted from police conduct acting on the profound sense of grievance of the people. Mr. Bizos' cross-examination tended to demonstrate that not only had the violence arisen in an unexpected and unpremeditated way as far as the vast majority of the demonstrators was concerned, but that the circumstances under which statements were taken from the witnesses should have given rise to grave concern about their spontaneity and accuracy. In the case of Mhlatsi, the witness gave his statements to the police whilst in section 29 detention and

- 19 - had, at the time of giving evidence, been in custody since November 1984! The behaviour of both witnesses, particularly under cross-examination, illustrated the grave dangers of relying on the evidence of witnesses who are in custody and who believe or may believe that their liberation depends on the content and quality of the evidence that they give. Whilst the trial was conducted in an orderly and judicial manner, there was a marked difference in atmosphere between the Delmas and the Pietermaritzburg trials. This may in part have been accounted for by the fact that the accused were in custody at Delmas, but was also undoubtedly contributed to by the ostentatious presence of a substantial number of police officers. It was noted, for instance, that the officers in charge of the case were in constant attendance with prosecuting counsel in court and appeared to be taking part in the trial in the same manner as one would have expected a solicitor to take part. I was also conscious in Delmas that the possibility of a death sentence was a reality, whereas in Pietermaritzburg the likelihood of a capital sentence seemed very remote. Furthermore, a group of 22 black men being tried by three white men and being prosecuted by a group of white men assisted by white policemen did not make for a feeling of even- handedness. Again, over all hung the spectre of the Internal Security Act. During the course of the week Mr. Tip attended for the purpose of explaining the delay on the part of the defence in making formal demands. There was some possibility that when the demands were finalized and lodged, the prosecution would be able to shorten its case to some extent. Nevertheless, the case was bound to be extremely lengthy, with all that that involved for the accused, their families and friends, the organizations to which they belonged and the development of democracy in South Africa. During the period of my presence at Delmas, the day-to-day running of the case was undertaken with great assiduity and skill by Mr. Bizos, S.C., and Mr. Yacoub. Other members of the defence team were dealing with special aspects of the case. Frequent joint consultations occurred, and the defence team worked with unity, great purpose and dedication. An aspect of the case that I found particularly disturbing, although it occurred before I had arrived at Delmas, arose from the evidence of a defector from ANC. This witness contended that in May 1985, whilst on a mission for ANC in South Africa, he ran out of money. He maintained that he had gone to UDF head offices to ask for financial assistance, but was referred to Dr. Beyers Naud6, the General Secretary of the South African Council of Churches (SACC) in Johannesburg. He claimed to have gained access to Dr. Naud6 without difficulty, although he had no pre-arranged appointment. He claimed to have introduced himself as an ANC member on a mission who needed money, whereupon Dr. Naud6 allegedly admonished him to speak softly and passed him R 60. He claimed to be able to say without doubt that on Monday, 13 May 1985, he was at Khotso House, where the headquarters of UDF and SACC in Johannesburg are located. He was most emphatic about the date. Defence counsel was able to establish that on the day in question Dr. Naud6 was not in South Africa, having left for Europe on Friday, 10 May 1985. - 20 - The following witness claimed to have been Joe Slovo's driver whilst in exile in Lusaka. In that capacity he claimed to have driven Mr. Slovo to a "secret meeting" with Bishop Tutu in the early or middle part of 1984 at the Zambia International Airport. His evidence was that he had left Zambia to return to South Africa in October 1984 and had not returned to Zambia thereafter. The defence was able to cross-examine the witness on the basis that Bishop Tutu had visited Lusaka only once in 1984 and that was in December, when he was the guest of President Kaunda. The witness was compelled to accept that defence counsel's contention could not be contradicted by him. I consider that these two pieces of evidence illustrate the use that was being made of this trial not only to attempt to discredit and criminalize organizations opposed to the apartheid Government, but also to bring individual distinguished opponents of apartheid, such as Dr. Naud4 and Bishop Tutu, into disrepute by attempting to implicate them in treason, terrorism and subversion. Conclusion Whilst I was present for only a very small portion of the trials in question, it is quite clear that the Pietermaritzburg trial was in concept and execution completely politically motivated, whereas the Delmas trial was an opportunistic device to use the killings of 3 September 1984 for the purpose of discrediting and criminalizing as many individuals and organizations opposed to the Government as possible. Both trials were profoundly offensive to the concept of impartial justice under the rule of law and to democracy and freedom.