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 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 because we were unable to advance arguments to free us.
Appearing in court as a representative of the liberation 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 moralising, 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.