ON TRIAL AND SENTENCING 40 YEARS AGO (PART 3). The Judgement “conduct reprehensible”


CHAPTER 9 of Inside Apartheid’s Prison (slightly edited)
The judgment: “Conduct reprehensible”

AT MY first court appearance on August 3, 1975, the state announced that I would not be allowed bail. Under the Terrorism Act, it was not for the courts, but for the Attorney General, to decide whether to permit bail.

One month before the trial, it was announced that Lawrence Kuny and Jennifer Roxburgh were being held under the Criminal Procedure Act. “They are not to be charged with allegations of participating in terrorist activities. They are being held in custody as witnesses in the trial of Mr Suttner.”

The indictment was broadcast on state radio. It tried to create an atmosphere of alarm, by referring to the revolutionary aims of the ANC and SACP, which it claimed were “…to overthrow the government of the Republic of South Africa by means which include violence, strikes, economical and industrial disorder or guerrilla warfare and sabotage.” The indictment stated that I had printed, published and disseminated literature to further these aims. Furthermore, I had recruited and trained Kuny and Roxburgh to assist in these tasks, by forming an underground cell.

My trial began on November 3, 1975 and I was sentenced on November 13. There was no chance that I would be acquitted. I decided to plead guilty, though I provided a justification for my actions in my unsworn statement from the dock (see previous posting).
The state, however, wanted to build up an atmosphere that would justify a heavy sentence. They went through a laborious process of proving every element of the evidence, even though these points had already been admitted by the defence.

Kuny testified about the training he had received. He referred to small pink slips of paper, which were notes I had used during this training. The Daily News of November 5, 1975 reported Kuny as saying that I had instructed him not to cooperate with the police in the event of his being arrested. It also reported that Kuny was told how to resist possible police beatings during interrogations.
The Daily News said: “Referring to his arrest in June, Mr Kuny said he believed that he was to be beaten up but, on the contrary, the police had acted like gentlemen and had not laid a finger on him.”

During cross-examination of Kuny, my advocate, George Bizos, asked him if anyone were to interpret his evidence as being that of a young, ignorant, stupid man who had been pulled in by a much cleverer and intellectually superior man, would it be the impression he wanted to create?

Kuny responded: “I don’t suggest that someone stood with a gun and said, “You must do it.” I am not trying to create the impression that I was misled.” Kuny admitted he was interested in Marxism before he met me, although he hadn’t read any of the revolutionary books that I had given him in the course of his training.

He said that, when first arrested, he had protested his innocence. But, after the Security Police were “so nice to me, I decided to show them where the pamphlets were.” (As reported in the Natal Mercury, November 5, 1975.)

Roxburgh’s evidence was very straightforward. She explained how she came to accept the use of violence. According to the Natal Mercury (November 5, 1975), she said: “I had previously held ideals of anti-violence. The books (which Suttner had given me) reconciled my ideas regarding the use of violence. I read that the cost of revolution need not be as high as maintaining the status quo in a country.” [The book referred to is Herbert Aptheker’s The nature of democracy, freedom and revolution]

Roxburgh said she had translated the Freedom Charter into Zulu, in order to distribute it in a pamphlet.

As was conventional in these cases, an alleged ANC defector also gave evidence about being trained as a saboteur. His name was allegedly “withheld for his own safety.” The rest of the evidence was technical – showing typewriters and duplicators that were used, copies of the pamphlets and evidence about where various items were purchased.

Then it was my turn to respond, which I did through my statement from the dock (see previous posting).

THERE IS a legal saying to the effect that every person has his or her day in court. If convicted, a criminal usually presents a plea in mitigation and tries to explain why the crime has been committed and to plead for leniency.

There were some cases in which political prisoners had followed this course of action — in line with conventional legal cases — possibly, to obtain a lower sentence, or because they were motivated by bitterness towards their comrades. In a well-publicised case in 1975, one of South Africa’s foremost Afrikaner poets, Breyten Breytenbach, threw himself on the mercy of the court, pleading for the minimum sentence, with the prosecutor and security police investigator adding their voices in his support. (It did not work. The judge sentenced Breytenbach to nine years. I did not know if this until much later and had limited indirect communication with Breytenbach when we were both at Maximum Security Prison, and I looked forward to being with him. He joined the other white political prisoners for one day and then was moved to Pollsmoor, apparently at his request)

In general, however, or in most cases, political prisoners avoided the mode of legal defence used in conventional cases. Their court appearances were part of a wider ideological battle. And by standing up against the state, the political fighter was ranged against the authorities in a way that was quite different from an individual offender, who had simply fallen foul of laws that are generally accepted as being in the interests of society.

The individual offender tried to escape punishment in terms of the existing norms of society. Unlike the political prisoner, he or she is not challenging the wider social order or the norms upon which it is based.

Different judges might cast varying glosses on the law, but in their oath of office had undertaken to administer justice according to the law. But the actions of political prisoners were directed against that very law — or, at least, those parts of it that we regarded as unjust and could not accept for wider moral reasons.

Thus, it was not surprising that judges and magistrates did not embrace our concept of justice. Instead, they described our actions as ones that no civilised state or authority could tolerate – equating our challenge to, and disregard of, the apartheid laws with a challenge to the very idea of law.
A politically motivated defence tended to be prejudicial to the personal interests of the accused. It made it harder to get out of jail and may have increased the length of our sentences. It tended to make certain types of legal defence impossible. In some cases, in order to safeguard our organisations or security, we had to conceal some of what might have freed us from jail.

There were some things I just could not say, even if they reduced my sentence, because they may have reflected negatively on the liberation movement. I first experienced this while an accused person; and then again in the 1980s, when applying for release from detention during the state of emergency. To some extent, we sometimes aided the process of legal conviction or continued detention because we were unable to advance arguments to free us.

Appearing in court as a representative of our movement meant we had a duty to engage the courts and challenge the system under which we were tried. That meant attempting to get the lowest possible sentence, or to be released. But the courtroom was also a place where we could be heard, albeit to a limited degree — a place where we could make a public statement in defence of the liberation struggle.

Therefore, I could not align myself with the liberation movement to just a limited degree, and dissociate myself from “less tasteful” policies, such as the use of force.

Some people, in the loneliness of their prison cells, might have found this course attractive — and selectively rejected liberation movement policies that were harder to explain in court.

When you do have your day in court, you want people to at least understand why you acted as you did.

This meant, in the case of people involved with the South African liberation movement, rejecting the labels that the regime wanted to attach to us — such as “terrorists,” and so on. We also wanted the fact of torture to be acknowledged, and that we had experienced various other losses, while undertaking political activities that had brought us no gain.

In many cases, people went to jail without the truth ever emerging. Deploying a maze of legalisms and moralizing, courts often de-legitimised what freedom fighters had done.

We knew we had broken the law, but many judges denied the reasoning behind our actions, and thus allied themselves with the reasoning of the apartheid regime.

I WAS dissuaded by my lawyers from raising the matter of my own torture in court. They said it would not be credible, since there was not a confession before the court and I was not going into the witness box. I accepted this reasoning at the time. But I now think it was wrong. I should have described my torture. Even if the court had not accepted my account, the public would have known the truth.

The judge in my case gratuitously implied that the security police had surprised state witness Kuny with their “politeness.” In case anyone were to imagine that terrible things happened in detention, here was Kuny giving state evidence, having found that he was dealing with gentle people.

As an academic, I had researched the ideological role of the South African judiciary, and how, in their judgments, they provided “authoritative” rationales for apartheid repression. (See, for example, my paper, “The Judiciary — its ideological role in South Africa” (1986), in the International Journal of the Sociology of Law, pp. 47-66.)

Twenty-four years [now forty years, of course] after the event, when I read the judgment given in my own case by Mr Justice Neville James, Judge President of Natal, it is clear that he went beyond the call of duty, in the words he used to convict and sentence me.

It was correct, in terms of the law of the time, that I should be found guilty. But James (like many others of his colleagues) also tried to assimilate moral and legal guilt. Thus, when considering the evidence given against me by Kuny and Roxburgh, James found I had manipulated my friendship with them, in order to induce them to take part in illegal activities. Thus, in regard to recruitment of Roxburgh, the judge stated:

“I have no doubt that the accused, as a result of his fairly close friendship with her, decided that he would be able to persuade her to enter his political orbit, and thus to make use of her skills for the purposes of his organisation. And that he did so without paying any heed to the perils and anxieties which she would endure by joining into activities which he knew were completely illegal (even though, at the beginning, she did not). I consider that the accused’s conduct in persuading his good and trusted friend, Miss Roxburgh, to help in his subversive activities was reprehensible and that he imposed upon her because of her regard for him.”

Regarding Kuny, the judge said:

“In passing, I should say that Kuny appears to have co-operated with the investigating police almost from the moment he was taken into custody. This apparently happened because he was quite unprepared for the politeness with which they treated him…”

In sentencing me, the judge said: “…he was prepared to allow his friends to risk their future for his cause.”

The judge depicts this cause (for which I had risked my future) as some selfish venture belonging to me. The judge also uses the language usually deployed to convict someone for fraud, as if there was some gain involved. In reality, underground work entailed risking my professional career and the ordinary comforts of home life. The judge also ignored the prospect of Kuny’s release, as an inducement for the latter’s cooperation. Instead, police “politeness” is given the credit.

In passing sentence (seven and a half years, taking into account almost 6 months in pre-trial detention) on me, the judge continued:

“There is no question of his succumbing to sudden temptation or pressure… I consider that his reasons for breaking the law, even if sincerely held, afford little basis for mitigation of sentence. I have no doubt that many terrorists all over the world who have killed innocent people by the indiscriminate use of explosives claim that they were morally justified in so doing, but such conduct cannot be tolerated in a civilized community. And the motives of the terrorists are of minor importance when deciding upon an appropriate sentence, because the requirements of law and order are paramount.

“Similarly, a man like the accused, who promotes revolutionary change in South Africa and urges others, by means of widely distributed subversive pamphlets, to support that change by using every available means, including violence and guerrilla warfare, cannot lay claim to special consideration from the Court because he asserts that he has acted from the highest moral principles. Although the accused has not himself detonated a bomb, he had endeavoured to light a trail of gunpowder, which he believes will cause a bomb to explode…

“While it is true that he never disclosed to his colleagues, students and friends, or to his family, that he had embarked on an illegal course and, as far as we know, only recruited two assistants, that does not redound entirely to his credit. For it seems to indicate that he possessed the fanatical dedication of a resolute man who had embarked on a secret subversive course and had disciplined his life to prevent any sort of suspicion falling upon him.

“I am acutely and sadly aware of the fact that in sending the accused to jail, as I am obliged to do, his brilliant academic and legal career will be blighted and that his incarceration will bring distress both to himself, his distinguished mother and her family. But for the reasons I have already given these matters, although relevant, cannot be carried too far as a basis for mitigation of sentence. I am therefore not prepared to pass the minimum sentence permitted by law…” [The minimum sentence was five years].

As I left the dock and gave the ANC clenched fist salute, people in the gallery, led by Winnie Mandela, responded by raising their fists and singing the national anthem, Nkosi sikelele i Afrika.

IN MY trial, Kuny and Roxbugh gave evidence for the state and, for that evidence, received indemnity from prosecution. For many years, people who did this were shunned within the democratic movement, particularly in the black community. Some who repeatedly gave state evidence were executed by Umkhonto we Sizwe.

While Jennifer Roxburgh tended to restrict herself to the evidence, Lawrence Kuny went out of his way to exonerate the police from any suspicions, both in court and after his release from custody.

In the Natal Mercury of November 14, 1975, Kuny is quoted as saying:
“My attitudes, both to politics and the Security Police, have changed drastically since I was arrested… I now realize that violent struggle is not the way things are going to change in South Africa…

“When I was picked up by the police, I thought all sorts of dreadful things were going to happen to me but, to my surprise, discovered the Security Police are very warm, kindhearted people. During my time in jail, they were an enormous comfort to me and took pains to cheer me up whenever they saw I was depressed.”

But Kuny gives a different account in his unpublished manuscript, written in 1975/6.

“…I’d been in my cell, quietly thinking. Now, I was surrounded by all these men. The suddenness and formality of their actions threw me into confusion and panic.

“In the middle of this muddled state, Raymond walked into the room. For a split second our eyes met. Was that the man I knew? Gone were the twinkling blue eyes; they were tired eyes; dark rings contrasting with pale flesh. And the pale cheeks were puffed out; his lips hanging open showed his teeth. His hair was disheveled; but the eyes were the worst; they stared blankly, unaware of where they were, there was no reaction in their bright colour. There was no mistake about his eyes; they were the eyes of a man who’d been to hell. He slumped forward like a lifeless doll; the men grabbed him by the shirt collar and dragged him out of the room. Raymond was too dazed to react.

“I looked at that face with naked terror.

“Since that night, I have wondered just why Raymond had been brought into the room where I was being kept. Did they want to show me what happened to people who didn’t cooperate with them? Was it to show me that those who didn’t talk were tortured? If this was their plan, then it succeeded. My terror was such that my whole body ached with fear. I will never forget that night, and those eyes; it was then that I understood what was meant by the word fascism.” (Kuny’s emphasis.)

While I still deplore the fact of anyone giving state evidence against freedom fighters, Kuny and especially Roxburgh were quite unlike some of the more notorious, professional state witnesses of the time. And, in Roxburgh’s case, it was the last that anyone heard of her in public, as far as I know.

Kuny and Roxburgh had worked with me for only eight or nine months. They did not have time to assume the level of commitment and discipline needed to cope with detention, or to resist the threats, torture and blandishments of the police.
In the past, I would not have anything to do with former state witnesses. Now, however, I think we need to give these people a chance — to reintegrate with society, and contribute towards the building of the new South Africa.

[I was released on May 11 1983 and gradually returned to political activity, this time mainly above ground. But I had to go underground during the first “short” 1985/6 state of emergency. Shortly after that State of Emergency was ended I was re-detained in a fresh State of Emergency, from June 1986 until September 1988 (18 of these 27 months in solitary confinement), when I was placed under house arrest. I defied that house arrest in August 1989 to attend the session of the Organisation of African Unity in Harare. I stayed out of the country for five months until the end of January 1990, not knowing that the ANC would be unbanned and restrictions would be lifted a few days later]

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