Chapter IX - Treason - South African style 2

From the book: Side by Side by Helen Joseph

The months of legal argument on the indictment were over at last and thirty "high traitors" pleaded not guilty to the charge of treason, two and a half years after they had been arrested. Each of us pleaded our innocence in our own language. I tried to make my plea loud and clear but I think I must have sounded very haughty as I said, "I plead not guilty to the charges as preferred against me." Nelson insisted afterwards that generations of British imperialism rang through the court as I spoke.

We listened to Advocate Pirow's opening address for the prosecution and I thought of what Vemon Berrange had said in the preparatory examination. These political kites had been blown a long way since then.

Like all of us, I was angry, deeply angry, about the whole trial and what it had done to our lives. I was, all the same, immensely proud to be included in the front-line thirty, even though I did not know why I had been selected for this honour. I was proud to be sitting with them, close to them in so many ways, sharing their ordeal with them.

We were facing a capital charge, could there be anything more serious? We knew that for the Crown to prove treason, it had to prove that the ANC advocated a policy of violence and we could not believe that this would be possible. We had no need to fear the truth, yet we were human beings, with human fears as well as human hopes. Despite our confidence in our defence counsel, our organisations, ourselves and in each other, the unspoken question lay always close to the surface, "Would truth prevail against the hostility of the Nationalist government?"

For ten weeks we listened to our documents being read into the court record. We had heard them before in the preparatory examination. After a few weeks of this, we complained to the court that we could not hear what the prosecuting counsel was reading ”” the evidence against us. Judge Rumpff instructed the counsel to read louder; suggesting caustically that possibly a professional reader with a loud voice might have to be engaged. There was not much improvement, for the synagogue had been built for rabbis and readers with trained voices, not for the efforts of lawyers and detectives. We used to say sometimes:

We're here for what we didn't do,
We're here for what we didn't say,
And we'll be hanged for what we can't hear!

We could always hear what the judges said and usually what our own counsel said. When the prosecution spoke of "historical fact" we heard Advocate Maisels mutter. "Hysterical fact!" We heard him comment that if this were a cloak and dagger conspiracy, then it was all dagger and no cloak, since our documents had not been hidden away in secret places.

I listened, absorbed now, scribbling all the time, to our Congress history being unfolded, a unique record of a non-violent liberation struggle for nearly fifty years. Pirow's opening address had quoted extracts on which the prosecution would rely in its efforts to prove violence, communism and treason. Now we heard these gobbets being put back into context again.

The judges' pleas for summaries bore no fruit, for the Crown counsel continued to display an inability to summarise and drew much judicial contempt for their failure. The trial seemed to stretch out endlessly before us. "Freedom in our lifetime!" had been one of our much-used slogans; Judge Kennedy was heard once to express the hope that the trial would end in his lifetime.

Yet it was not to end in Pirow's. On 12 October we came to court to hear that he had died suddenly the night before. The court was crowded with advocates to pay tribute to him. We had been divided amongst ourselves as to whether we should stand with the rest of the court in respect to his memory, but the text of his opening address was still fresh in our minds. He represented our enemy, the Nationalist government; he had formerly been a member of it. Not one of us stood for Pirow; we sat stony-faced, with folded arms, while the court stood. Leaving the documents, the prosecution produced its showpiece, none other than Professor Andrew Murray, its expert on communism. He was the very witness who had taken such a battering from Vemon Berrange two years before, in the preparatory examination. To our amazement here he was, back again, with seemingly renewed confidence.

At first we listened carefully, remembering his previous sorry exhibition, but the sheer length of his evidence now proved soporific. We were being submerged in communist doctrine, according to Professor Murray, and I noticed that several of my colleagues were sleeping through it. The opening of his evidence was inauspicious for the prosecution. Their star witness had furnished himself with notes from which he had hoped to read, but he was soon stopped by defence counsel's objections. Judge Rumpff commented curtly, "If he's an expert, then he's an expert." So why should he need to refresh his recollection?

After days of expounding communist doctrine, punctuated by damaging defence objections, the witness came at last to the Freedom Charter. Now we all listened, for we knew that the Freedom Charter was crucial to the trial. For us it was a declaration of faith, the affirmation of what we strove for, the statement of the hard facts of the life of the black people. We had adopted it four years before and it belonged to us.

The prosecution presented the Charter in its own way, trying to show, clause by clause, that it could be related to communist doctrine, that there was no clause that could not be. To me it sounded totally unreal. I knew the origin of the charter that it told of the hopes of the people for a world in which their present sufferings would be no more, those sufferings, which were reflected in every line of it. Why should a nation need a communist doctrine to tell them what they suffered, to spell out for them their hopes for the future? Had not the people done this for themselves.

Then we moved back again to documents, 400 documents, and books too, to be presented to the expert on communism for his verdict. They had all been once in our possession, or the co-conspirators', that shadowy body of our fellows in this huge conspiracy against the slate. Presumably the state dared not bring a charge of treason against them for lack of evidence, but it had felt it could sally forth against us by throwing in everything it could scrape together in the hope that something might come forth eventually from this inchoate mass.

Our books, according to this expert, were communist classics, or contained communist material or propaganda. I remembered, ruefully, the ones I had once purchased, feeling that perhaps I ought to be a little better informed on communist ideology. But of course they were not the only political books I possessed, and I did not have them long. The police in a raid removed them all the morning after I had acquired them. It seemed that, for the prosecution, we could be damned for treason just for possessing such books, whether we had read them or not.

It was almost a comic proceeding. Counsel read an extract; the court orderly handed the book to the witness, putting it into his outstretched hand and then the verdict would be announced. It was usually "straight from the shoulder communism", an odd phrase, but obviously dear to the witness. The volume would then be added to the evergrowing pile of books beside him.

It took only one day of this procedure to draw a protest from the judges and then only the title was read aloud. The extract was to be read into the record at some other time, outside court hours. Nevertheless it remained an agonizingly slow process, and a sort of stupor spread over the court, broken only by the rhythmic movements of the court orderly walking backwards and forwards.

At last this part was over. Professor Murray had had twelve days already in the witness box. He looked a little weary, but his real ordeal was still to come. Now we were all alert again when Advocate Maisels rose to his feet, tall and commanding, to cross-examine this witness.

We entered into a world of semantics, of the meaning of words and terms, as used by Professor Murray, as used by us. Confronted with his own articles written twenty years before, with his own evidence given only a few days before. Professor Murray started on a course of retreat before Maisels' attacks, attempting to defend his own use of words. He drew a devastating comment from Maisels of "fascism'. "We hope to establish at the end of this cross-examination that you are about the only person who uses the word in this special fashion" and "I am going to suggest that this reply is due to tiredness on your part." To which Murray replied haughtily. "On the contrary, it is due to experience and knowledge."

Advocate Pirow had alleged in his opening address that we were inspired by communist fanaticism and racial hatred. Maisels declared that he would, by the presentation of objective facts, put forward another interpretation, the right of the human person to be treated as one.

The facts of South African life were then presented in their stark reality, as Advocate Maisels led the witness through the many statutes, based on deprivation and differentiation, rooted in race and colour. Statistics reinforced Maisels' searching questions, until Judge Rumpff asked, "where will it stop?", to which Maisels replied: "where did the Crown stop?", adding that the real inspiration of the accused was the miserable conditions prevailing for the black people in South Africa. He then proceeded with his exposition, putting his question on objective facts to which the witness could only answer, "Yes". We heard those monosyllabic replies, "yes... yes ... yes...!" like the sound of a paintbrush slapping paint on the devastating picture of black life in South Africa.

In reply to the suggestion that generally the tone of the speeches at the Congress of the People was moving, touching and humanitarian, the witness at last conceded that the charter itself was liberatory and humanitarian.

Eventually Professor Murray left the witness box. We thought that he had been routed, but I doubt that his self-esteem had really been punctured. He was merely a weary man, a little drawn and grey-faced, when he stepped down. Our esteem for Maisels and his defence team had risen very high indeed. Many of us thought that our case was already more than half won and we were jubilant. The court was exhausted, I think, because the trial was then adjourned until the following January, a break of almost two months.

October had brought sadness to us with the death of Lionel Forman, an accused with us until the separation into two trials. Aged only thirty-two, he had suffered from a heart condition all his young life and died during an operation. I thought how keenly he would have appreciated Maisels' handling of Murray and wished he could have been there to hear it ”” though not as an accused, for I did not wish that on anyone.

We reached the third part of the treason saga in January 1960, the reports of our "treason" or "violent" or "communist" speeches. We knew what to expect, for we had listened to it before. Now we should have to sit for more dreary hours listening to these incredibly distorted versions of our speeches. Yet they were not distorted by malice or deliberate untruth, but by the sheer inability of many of the detectives to get down on paper what we had actually said.
“ We're here for what we didn't say...”

What it all added up to, except for a small proportion of reasonably accurate shorthand reports, was what these longhand reporters thought we said, or thought we might have said. The entire two-month performance would have been ludicrous, had it not been that we had been sitting on trial now for over three years. Was this a time to play yet another act in this bitter farce?

Our anger was not directed against the black witnesses as individuals. They were victims of a system, which had pushed them into this humiliating exhibition of their own inadequacy, exposed them to the searing contempt of cross-examining lawyers. How could men, only half educated through no fault of their own, ever have been expected to make verbatim reports of speeches, not even in their own language. Perhaps they were literate in their own tongues. I don't know. They were certainly not in English.

Occasionally defence counsel would produce a time and motion study. There had been twelve meetings, which had spread over a total of thirty-nine hours, but the longhand notes, when typed, had covered only one page for every three hours of speeches. "I always write the best way I can get along," one witness said, "It was the speech . . . in so far as I could get it down," said a white sergeant, at the same time insisting that this was the speech that had been made.

Yusuf Cachalia, one of the South African Indian Congress's best speakers, was reported to have said. "I one day read an article in an Afrikaans newspaper after the judge's decision. This article read thus: ‘One who loves first, loves more.’ Yes, of course they were correct to say so, because the Minister of Justice may after three months impose bans upon us."

Then followed this exchange in court:
Witness: "I wrote what he said."
Defence Counsel: "Nonsense, isn't it?"
Witness: "If it is nonsense then he speaks nonsense."
Defence Counsel: "You agree it's nonsense?"
Witness: "HE said it. I wrote it down."
Defence Counsel: "Do you agree it's nonsense?"
Mr Justice Rumpff (wearily): "Does it matter, Mr Berrange?"

I don't know how the judges had the patience to listen to weeks of this befuddled nonsense. I suppose they had no alternative because the Crown was presenting it all as evidence of complicity in a treasonable conspiracy, in some cases even as proof of our very acts of treason. Yet it was almost at the level of Alice in Wonderland: "Twas brillig and the slithy toves did gyre and gimble in the wabe."

Three and a quarter years after we had been arrested, the Crown closed its case. Now at last, in March 1960, it would be our turn. Our witnesses would be called, Chief Luthuli, Nelson Mandela, Professor Z.K. Matthews and others. Our leaders would speak for us and for the whole Congress Alliance. Dr Zami Conco from Natal was our first witness, the Deputy President General of the ANC. His evidence ended on 21 March, the day of the Sharpeville massacre, when sixty-seven unarmed Africans were shot dead by the police.

The ANC view on Africanism had always been clear. It had been set out again recently by the National Executive Committee at the ANC Annual Conference in 1958. The ANC accepted South Africa as a multiracial country in which all racial groups have the right to live in dignity and prosperity. ANC nationalism was neither exclusive nor racialistic, but broad and all embracing. It had always been accepted by the ANC that freedom is indivisible and that the ANC must work with all forces prepared to struggle for the same ideals.

There was, however, an extremist Africanist view within the ANC membership that the SA liberation struggle must be conducted on the basis of narrow African nationalism alone, because Africans were indigenous to the soil and constituted the majority of the people. This was in direct opposition to the long-standing ANC policy of racial co-operation and to the ideal expressed in the Freedom Charter and adopted by the ANC "that South Africa belongs to all who live in it, black and white . . ."

In 1959, the Pan Africanist Congress had established itself, the result of an Africanist breakaway from the ANC. It seemed a strange time to be breaking away from the mother body with so many leaders still on trial. The ANC was itself fighting for survival against the tremendous onslaught of banning orders imposed on the leadership at all levels, and against the treason trial which threatened its very existence.

Despite the Africanist breakaway to form the Pan Africanist Congress, to be known thereafter as the PAC, the ANC remained consistent in its policy of uniting with other racial groups in the Congress Alliance, whilst preserving its own national identity.

At the 1959 ANC national conference, 31 March 1960 had been proclaimed as "Anti-Pass Day" when demonstrations against passes would be held throughout the country. The PAC, meeting just one week later in their conference, decided to launch their own "final and positive action against the pass laws". Their campaign was to have tragic consequences at Sharpeville. The situation seemed to have taken on a competitive dimension in the PAC's anxiety to achieve a following for their organisation.

Chief Luthuli emphasised the need for popular training in non-violent action and the danger of "reckless haste and impatience, which might be suicidal and be playing into the hands of the government". I remembered the women's gaol protest in 1 958 and how the Congress leaders had insisted that the women were not prepared and would not be able to sustain a long stay in gaol. I had come to see the wisdom of this but I did not foresee the terrible consequences of the ill- prepared PAC defiance.

Halfway through March, the PAC proclaimed their starting date as 21 March, ten days before 31 March, the date fixed by the ANC. The competitive inference was inescapable. The PAC call to its members was that they should congregate at municipal offices, leaving their passes at home and offering themselves for arrest for being unable to produce them. They would not pay fines nor accept neither bail nor legal defence. After serving their sentences in gaol, the protesters would again offer themselves for arrest. This was to be a campaign of "decisive and positive action" which the PAC leaders believed would mobilise hundreds of thousands of Africans in mass protest against the pass laws.

The ANC Secretary General informed Mr Robert Sobukwe, the PAC President, that the ANC could not support this campaign. "We realise that it is treacherous to the liberation movement to embark upon a campaign which has not been properly prepared for and which has no reasonable chance of success." These were strong and wise words, prophetic words, so soon to be proved true.

Even before we left court on the fateful 21 March, reports were filtering through, reports of demonstration and arrest, which grew into horrifying reports of police shooting and many dead in Sharpeville Location. Thousands of people had marched peacefully to the municipal office and formed a growing yet peaceful crowd there, joined by thousands more. Police reinforcements were rushed to the offices and then, just as outside the Johannesburg Drill Hall at the beginning of our trial, the police panicked and fired, claiming afterwards that it was in self-defence. No order to shoot was given but the crowd, after it turned to flee, was raked with gunfire and sixty-seven people lay dead. 180 wounded.

By the next morning, we knew of all the dead and wounded, we heard of mass demonstrations and shooting in the Cape and we knew the shame of sitting helpless, immobilised, in the treason court. President Luthuli called for a National Day of Mourning on the day when all the Sharpeville victims were to be buried. It was to be observed by people staying home from work. This time the ANC and the PAC worked together and the stay-at-home was almost totally observed in many large centres.

We were mourning the dead, but we were also watching the last rites of the African National Congress as a legal organisation. On 28 March, the Unlawful Organisations Bill was introduced in Parliament to outlaw the ANC, after fifty years of existence ”” and with it, the newly formed PAC.

We knew that nothing could stop this Bill. It was a bizarre situation. We were in court to defend the ANC, its wisdom and its refusal to approve violent action. In the midst of all this, with the President General now in the witness box testifying to its non-violent policy, the organisation had been outlawed. If ever there was contempt of court, surely this Bill was it. It was on that day that Duma Nokwe said bitterly, "this trial is out of date". And so it was, but the sorry farce still had to be played out. The tragedy was that Sharpeville should never have happened. The rash action of the PAC had cost us ”” and them ”” very dearly and brought tragedy to many homes. There was, however, more to come. The government reacted by putting the whole of South Africa under a State of Emergency, taking into custody nearly 2,000 people of all races, in all centres.

I heard the knock at my door at three o'clock in the morning. I became hazily aware of car lights and sounds of people and there they were, the mixture as before. First a search, then a suitcase to be packed, this time with a warning to take plenty of clothes. "It might be for a long time." Then off to Marshall Square police station again, there to find three friends in the large cell of the treason days, also with their suitcases.

We sat around in the cell, not hungry, for food had been brought to us, but isolated, cut off from home and friends and children. Later in the day, we were allowed to sit in a small built-in yard, from which we could see only the sun and the sky above us. Then we heard the voices of our friends, "Helen, we are missing you!" called Bertha. "The world at 1p.m." shouted Kathy and he gave us news of many others held like us. It was a "loo" communication service, possible only by standing on tip-toe on lavatory pans to shout through high-up gratings.

In the evening we all met in the charge office, some of the treason accused and many others. We learnt from our lawyers that hundreds had been arrested all over South Africa, under the State of Emergency regulations, but the police had jumped the gun before the regulations had actually been gazetted and the arrests were illegal. We should have to be released, but the presence of armed police all around us left no hope that we should be allowed to leave the police station. Sure enough, we were first released and then re-arrested, one by one, with a tap on the shoulder, a ludicrous performance for this was no knighthood, but a sentence to indefinite detention in gaol. The regulations had by this time been gazetted and were now law.

Many of our friends were pressing at the doors and windows, heavily guarded by the police with sten guns and revolvers, but they could not guard the fanlights. A flood of gifts came pouring through, sweets, biscuits, nuts, cigarettes, even playing cards, tumbling down amongst us. We were not forgotten.

We heard the freedom songs of our people as they marched around the police station and then we were herded back to our cells, but we could still hear the songs. We slept well that night, despite the horror of our detention, for we had not slept much, if at all, the night before. I remembered, uneasily, the warning when I was arrested. "It might be a long time," but it was no use worrying about the future. That would have to take care of itself, as we could do nothing about it.

The next morning, I was taken away from my friends in the cell and bundled into a prison van, where I found Leon Levy, the only other white on the trial now, and learnt that we were being taken to Pretoria for the trial. It seemed a bit peculiar in the midst of all these arrests, but I was glad to know that I should be with the accused again. Freedom songs started up in the back of the van, for Leon and I were separated from our friends by our colour. We joined in enthusiastically; peering through the small windows, we could see people gazing curiously at this travelling choir.