39
EVEN BEFORE the doors of the Old Synagogue opened on the morning of March 29, 1961, the day of the long-anticipated verdict in the Treason Trial, a crowd of supporters and press people jostled to get inside. Hundreds were turned away. When the judges brought the court to order, the visitors’ gallery and the press bench were packed. Moments after Justice Rumpff pounded his gavel, the Crown made an extraordinary application to change the indictment. This was the fifty-ninth minute of the eleventh hour, and it was two years too late. The court rebuffed the prosecution and the gallery murmured its approval.
“Silence in the court!” the orderly yelled, and Judge Rumpff announced that the three-judge panel had reached a verdict. Silence now reigned. In his deep, even voice, Judge Rumpff reviewed the court’s conclusions. Yes, the African National Congress had been working to replace the government with a “radically and fundamentally different form of state”; yes, the African National Congress had used illegal means of protest during the Defiance Campaign; yes, certain ANC leaders had made speeches advocating violence; and yes, there was a strong left-wing tendency in the ANC that was revealed in its anti-imperialist, anti-West, pro-Soviet attitudes, but —
On all the evidence presented to this court and on our finding of fact it is impossible for this court to come to the conclusion that the African National Congress had acquired or adopted a policy to overthrow the state by violence, that is, in the sense that the masses had to be prepared or conditioned to commit direct acts of violence against the state.
The court said the prosecution had failed to prove that the ANC was a Communist organization or that the Freedom Charter envisioned a Communist state. After speaking for forty minutes, Justice Rumpff said, “The accused are accordingly found not guilty and are discharged.”
The spectators’ gallery erupted in cheers. We stood and hugged each other, and waved to the happy courtroom. All of us then paraded into the courtyard, smiling, laughing, crying. The crowd yelled and chanted as we emerged. A number of us hoisted our defense counsels on our shoulders, which was no easy task in the case of Issy Maisels, for he was such a large man. Flashbulbs were popping all around us. We looked around for friends, wives, relatives. Winnie had come up and I hugged her in joy, though I knew that while I might be free for this moment, I would not be able to savor that freedom. When we were all outside together, the Treason Trialists and the crowd all began to sing “Nkosi Sikelel’ iAfrika.”
After more than four years in court and dozens of prosecutors, thousands of documents and tens of thousands of pages of testimony, the state had failed in its mission. The verdict was an embarrassment to the government, both at home and abroad. Yet the result only embittered the state against us even further. The lesson they took away was not that we had legitimate grievances but that they needed to be far more ruthless.
I did not regard the verdict as a vindication of the legal system or evidence that a black man could get a fair trial in a white man’s court. It was the right verdict and a just one, but it was largely as a result of a superior defense team and the fair-mindedness of the panel of these particular judges.
The court system, however, was perhaps the only place in South Africa where an African could possibly receive a fair hearing and where the role of law might still apply. This was particularly true in courts presided over by enlightened judges who had been appointed by the United Party. Many of these men still stood by the rule of law.
As a student, I had been taught that South Africa was a place where the rule of law was paramount and applied to all persons, regardless of their social status or official position. I sincerely believed this and planned my life based on that assumption. But my career as a lawyer and activist removed the scales from my eyes. I saw that there was a wide difference between what I had been taught in the lecture room and what I learned in the courtroom. I went from having an idealistic view of the law as a sword of justice to a perception of the law as a tool used by the ruling class to shape society in a way favorable to itself. I never expected justice in court, however much I fought for it, and though I sometimes received it.
In the case of the Treason Trial, the three judges rose above their prejudices, their education, and their background. There is a streak of goodness in men that can be buried or hidden and then emerge unexpectedly. Justice Rumpff, with his aloof manner, gave the impression throughout the proceedings that he shared the point of view of the ruling white minority. Yet in the end, an essential fairness dominated his judgment. Kennedy was less conservative than his colleagues and seemed attracted by the idea of equality. Once, for example, he and Duma Nokwe flew on the same plane from Durban to Johannesburg, and when the airline bus to town refused to take Duma, Kennedy refused to ride in it as well. Judge Bekker always struck me as open-minded and seemed aware that the accused before him had suffered a great deal at the hands of the state. I commended these three men as individuals, not as representatives of the court or of the state or even of their race, but as exemplars of human decency under adversity.
Judge Bekker’s wife was a person sensitive to the needs of others. During the State of Emergency, she collected goods which she brought to the accused.
But the consequence of the government’s humiliating defeat was that the state decided never to let it happen again. From that day forth they were not going to rely on judges whom they had not themselves appointed. They were not going to observe what they considered the legal niceties that protected terrorists or permitted convicted prisoners certain rights in jail. During the Treason Trial, there were no examples of individuals being isolated, beaten, and tortured in order to elicit information. All of those things became commonplace shortly thereafter.