Mandela, the lawyer and his legal battles

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By Dayo Benson
THE South African activist and former president Nelson Mandela (1918-) helped bring an end to apartheid and has been a global advocate for human rights.

A member of the African National Congress party beginning in the 1940s, he was a leader of both peaceful protests and armed resistance against the white minority’s oppressive regime in a racially divided South Africa.

His actions landed him in prison for nearly three decades and made him the face of the antiapartheid movement both within his country and internationally. Released in 1990, he participated in the eradication of apartheid and in 1994 became the first black president of South Africa, forming a multiethnic government to oversee the country’s transition. Since retiring from politics in 1999, he has remained a devoted champion for peace and social justice in his own nation and around the world.

First court statement (1962)

Statement on charges of inciting persons to strike illegally, and of leaving the country without a valid passport.

File photo: Nelson Mandela

File photo: Nelson Mandela

In its proper meaning equality before the law means the right to participate in the making of the laws by which one is governed, a constitution which guarantees democratic rights to all sections of the population, the right to approach the court for protection or relief in the case of the violation of rights guaranteed in the constitution, and the right to take part in the administration of justice as judges, magistrates, attorneys-general, law advisers and similar positions.

In the absence of these safeguards the phrase ‘equality before the law’, in so far as it is intended to apply to us, is meaningless and misleading. All the rights and privileges to which I have referred are monopolised by whites, and we enjoy none of them. The white man makes all the laws, he drags us before his courts and accuses us, and he sits in judgement over us.

It is fit and proper to raise the question sharply, what is this rigid colour-bar in the administration of justice? Why is it that in this courtroom I face a white magistrate, am confronted by a white prosecutor, and escorted into the dock by a white orderly? Can anyone honestly and seriously suggest that in this type of atmosphere the scales of justice are evenly balanced?

Why is it that no African in the history of this country has ever had the honour of being tried by his own kith and kin, by his own flesh and blood?

I will tell Your Worship why: the real purpose of this rigid colour-bar is to ensure that the justice dispensed by the courts should conform to the policy of the country, however much that policy might be in conflict with the norms of justice accepted in judiciaries throughout the civilised world.

I hate race discrimination most intensely and in all its manifestations. I have fought it all during my life; I fight it now, and will do so until the end of my days. Even although I now happen to be tried by one whose opinion I hold in high esteem, I detest most violently the set-up that surrounds me here. It makes me feel that I am a black man in a white man’s court. This should not be.

***Nelson Mandela at work in the Johannesburg office where he and Oliver Tambo practised law together during the apartheid era.

Chancellor House is a fire-blackened three-storey building in central Johannesburg, inhabited by hundreds of squatters. The only clue to its place in history is a collection of faded newspaper cuttings on the wall of a squalid first-storey room, all of which show Nelson Mandela – for it was here that the former South African president and his friend Oliver Tambo opened the country’s first black law firm in 1952.

The brass plate bearing their names that once hung on the door is long gone, and a visitor to Mandela’s old office must step past bags of rubbish, tread through shallow puddles and climb stairs in near total darkness.

The buidling is now at the centre of a fierce and emotive debate. City council officials are considering a plan to demolish it and turn the area into an “open urban space”, but members of Mandela’s family want Chancellor House to be turned into a national heritage site, honouring both the 91-year-old icon and the late Tambo, who was president of the African National Congress from 1967 to 1991.

Legal fraternity

“I think it would be a very good idea because that was part of his journey,” Mandela’s daughter Zindzi said. “That would also accurately record the relationship he had with his comrades as colleagues in the legal fraternity.”

Tambo once told how, despite white minority rule, he and Mandela practised in the building opposite the magistrates court in Johannesburg. “Chancellor House in Fox Street was one of the few buildings in which African tenants could hire offices. “It was owned by Indians,” he recalled. “This was before the axe of the Group Areas Act fell to declare the area ‘white’ and landlords were prosecuted if they did not evict the Africans.

“‘Mandela and Tambo’ was written huge across the frosted window panes on the second floor, and the letters stood out like a challenge. To white South Africa it was bad enough that two men with black skins should practise as lawyers, but it was indescribably worse that the letters also spelled out our political partnership.”

In 1960, with political tensions rising, Tambo left the country and Mandela was imprisoned during the state of emergency imposed after the Sharpeville massacre. Both men dedicated their lives to the liberation struggle.

Chancellor House was gutted by fire and fell into ruin. It was familiar pattern during the 1990s in Johannesburg’s central business district as companies, fearful of crime and urban decay, moved their offices out to the city’s northern suburbs. But now efforts are underway to regenerate the city centre.

Mandela’s former office is now the home of 38-year-old Dick Macomary. He said he had lived there for 22 years and would be happy to move if the city council relocates him to a new home. In the meantime he earns a living guarding and washing cars parked by visitors to the nearby magistrates court.

“It’s very difficult to live here,” Macomary said. “There is no lighting, no electricity, no toilet, no water. We are eating in the street, using paraffin. If you want to shit in the night, you have to go far. They should renovate this place and give me a new home.”

He said that 364 people lived in the building, including children, with 10 or 15 to a room. “Nelson Mandela is a hero,” he added. “If he wants to visit just once, I’ll make him a coffee.”

South Africa already has several national heritage sites associated with Mandela, including his birthplace and former home in Mthatha, his former houses in Alexandra and Soweto and the prisons on RobbenIsland and in Paarl.

The City of Johannesburg is seeking to buy the building and is studying options to restore it, demolish it and erect a replacement, or knock it down and create a commemorative park.

“The city has as yet not taken a decision to demolish the building,” said council spokesman Virgil James. “Nothing will be done without involving the relevant citizens. A proposal was submitted that, if demolished, the area be turned into an open urban space with some form of memorial to indicate the importance of the site.”

1956 Treason Trial

The Treason Trial was a trial in which 156 people, including Nelson Mandela, were arrested in a raid and accused of treason in South Africa in 1956.

The main trial lasted until 1961, when all of the defendants were found not guilty. During the trials, Oliver Tambo left the country and was exiled. Whilst in other European and African countries he started an organization which helped bring publicity to the African National Congress’s cause in South Africa. Some of the defendants were later convicted in the Rivonia Trial in 1964. Chief Luthuli has said of the Treason Trial: “The treason trial must occupy a special place in South African history. That grim pre-dawn raid, deliberately calculated to strike terror into hesitant minds and impress upon the entire nation the determination of the governing clique to stifle all opposition, made one hundred and fifty-six of us, belonging to all the races of our land, into a group of accused facing one of the most serious charges in any legal system.”[1]

Defendants

In December 1956 many key members of the Congress Alliance were arrested and charged with treason, including the almost entire executive committee of the ANC, as well as the SACP, SAIC, COD. 105 Africans, 21 Indians, 23 whites and 7 colored leaders were arrested. Ten of the arrestees were women.[2] Many arrestees, including Nelson Mandela, were detained in communal cells in Johannesburg Prison, known as the Fort, resulting in what Mandela described as “the largest and longest unbanned meeting of the Congress Alliance in years.”[3] However, white men, white women, black were all held in a separate parts of the jail.

Initially, 156 defendants were charged with high treason. The number of defendants was later reduced to 92. In November 1957, the prosecution reworded the indictment and proceeded a separate trial against 30 accused. Their trial commenced in August 1959. The remaining 61 accused were tried separately before the case against them was dismissed in mid 1960.[4]

Treason trial defendants (during various stages of the trial) included:

Nelson Mandela, ANC (one of the final 30 defendants)

Ahmed Kathrada, accused number three, secretary-general of the Transvaal Indian Youth Congress (one of the final 30 defendants)

Walter Sisulu, ANC (one of the final 30 defendants)

Stanley Lollan, accused number four, SACPC (one of the final 30 defendants)

Leon Levy (one of the final 30 defendants)

Helen Joseph, white trade unionist and women’s leader (one of the final 30 defendants)

Lillian Ngoyi (one of the final 30 defendants)

Joe Slovo, SACP lawyer (one of the final 30 defendants)

Duma Nokwe (one of the final 30 defendants)

Bertha Mashaba Gxowa (one of the final 30 defendants)

Ida Flyo Mntwana, first national president of the Federation of South African Women, died March 1960 before verdict (one of the final 30 defendants)

Farid Adams (one of the final 30 defendants)

Elias Moretsele, ANC leader, died on a few weeks before the trial ended (one of the final 30 defendants)

Chief Luthuli, known as Chief Luthuli, then-president of the ANC, later released for lack of evidence.

Alex La Guma, journalist and writer

Archie Gumede, now leader of the United Democratic Front.

Ben Turok Academic, now member of Parliament

Monty Naicker, the Gandhian leader of the Natal Indian Congress

Ruth First, SACP, journalist and wife of Slovo

Billy Nair, Trade Unionist in Natal

Lionel Foreman, lawyer and journalist (indictment withdrawn) and died in 1959.

Lionel Bernstein, known as Rusty, Congress of the People and Congress of Democrats

Moosa Moolla, now ANC representative in India.

Moses Kotane, ANC delegate to the Asian-African Conference in Bandung

George Peake

Nimrod Sejake

Vuyisile Mini, Trade Union leader and musician

Yusuf Dadoo, leader of the South African Indian Congress

Z. K. Mathews, academic

Oliver Tambo, released for lack of evidence, goes into exile to coordinate the ANC from abroad.

Wilton Mkwayi, went into hiding during the 1960 State of Emergency while the other defendants were detained, later arrested and tried during the Rivonia Trial.[5]

Reggie September

Piet Beyleveld

M.B. Yengwa, Natal ANC

Peter Nthite, ANC youth league

Patrick Molaoa, ANC youth league

Debi Singh, SAIC

Arthur Letele

Rev. James Calata

Fish Keitseng

Lawyers for the defense included:

Israel Maisels, known as Issy Maisels, led the defense team

Sydney Kentridge

Vernon Berrangé

G. Nicholas

Rex Welsh

Ruth Hayman

Bram Fischer

Norman Rosenberg

Maurice Franks

Joe Slovo conducted his own defense

Nelson Mandela and Duma Nokwe conducted the defense during the state of the emergency after the Sharpeville Massacre, when the trialists instructed their defense lawyers to temporarily withdraw from the case[6]

Other notable figures involved in the Treason Trial

Prosecutors included:

Van Niekerk, chief prosecutor

Oswald Pirow (from January 1958 onwards)

De Vos, who replaced Pirow after his death in 1959

Judges included:

Justice F.L. Rumpff, president, who was also a judge at the 1952 Defiance Trial

Justice Kennedy

Justice Ludorf, who withdrew when the defense argued he had a conflict of interest

Justice Becker

Witnesses included:

Professor Andrew Howson Murray, Department of Philosophy, University of Cape Town, brought in by the prosecution as an expert on communism.

Defence and Aid Fund

After the British Canon John Collins (priest) learnt about the trial, and the calls for the death penalty, he set up the Defence and Aid Fund for Southern Africa in order to pay all legal expenses and look after the families of those on trial. This was one of the first examples of foreign intervention against apartheid in South Africa and proved very successful with over £75,000 being raised towards defending those accused.[7]

Significance of the Trial

In many ways, the trial and prolonged periods in detention strengthened and solidified the relationships between members of the multi-racial Congress Alliance. Rusty Bernstein wrote:

“Inter-racial trust and cooperation is a difficult plant to cultivate in the poisoned soil outside. It is somewhat easier in here were … the leaders of all ethnic factions of the movement are together and explore each other’s doubts and reservations, and speak about them without constraint. Coexistance in the Drill Hall deepens and recreates their relationships.”[8]

The trial and resulting periods of detention also allowed ANC leaders to consult about the direction of their struggle and the possibility of armed struggle. Ironically, the court found that the ANC was nonviolent just as the ANC was starting to question the effectiveness of this strategy.[9]

In court, the 156 defendants sat in alphabetical order, visibly displayed the multiracial nature of the anti-apartheid movement. While the defendants sat side by side in court, they were strictly segregated in jail.

When the trialists took over their own defense during the State of Emergency, they eventually convinced prison authorities to let them meet to plan their defence and white female defendants, white male defendants and black women defendants were brought to the African men’s prison. Yet the prison authorities still sought to physically separate these defendants by race and gender in their meeting space. Mandela describes the practical dilemma the proponents of apartheid faced:

“The authorities erected an iron grille to separate Helen and Leon [Levy] (as whites) from us and a second partition to separate them from Lilian and Bertha [Mashaba Gxowa] (as African women) … Even a master architect would have had trouble designing such a structure.”.[10]

Trial Time Line

December 1956: 156 anti-apartheid leaders arrested

December 1956 – January 1958: Preparatory examination in a magistrates court to determine if there was sufficient evidence to warrant a trial.

November 1957: Prosecution rewords the indictment and proceeded a separate trial against 30 accused. The remaining 61 accused were to be tried separately before the case against them was dismissed in mid 1959.

August 1959: Trial against 30 defendants proceeds in the Supreme Court.

March 5, 1960: Chief Luthuli’s testimony begins.[11]

April 8, 1960: ANC is declared banned in the wake of the State of Emergence declared after the Sharpeville massacre. Defendants retained in custody for five months and trial resumes without lawyers for several months.

May 1960: Helen Joseph and 21 left-wing white women detained during the State of Emergence embark on an eight-day hunger strike.[12] The children of detainees protest outside Johannesburg city hall.[13]

August 3, 1960: Mandela’s testimony begins.[14]

October 7, 1960: Defense closes.

March 23, 1961: Trial adjourned for a week.

March 29, 1961: Accused are found not guilty.

 

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