respect - they would appear to Toe an attempt merely to. suggest that one Ray Alexander or the K&cjb&ration was

Transcription

1 respect - they would appear to Toe an attempt merely to suggest that one Ray Alexander or the K&cjb&ration was communist, which we say with respect, My Lord, had nothing to do with the case. My Lords, four pages further on, there is a passage at page where Your Lordship asked, "At this Conference was there ever a resolution adopted lauding the women of China or any othur communist country". BY MR. JUSTIC3 RUMPFF s I think in terms of my record this was Mr. Adams' question. BY MR. FISCHER s I beg Your Lordship's pardon, that was Adams' question. I wished to re er to that. And the reply was, "No, My Lord, the resolutions are really condemnatory resolutions on certain acts and views, a resolution on peace, a resolution deploring the brutal acts committed against innocent women and children of Kenya". And then, I am sorry, My Lord, this is the passage to which I wished to refer. Your Lordship asked, "Whose acts were those? My Lords, the resolution does not specify, it merely protests against the brutal acts committed against the innocent women and ch ldren of Kenya. I understood that as referring to any women and children who had suffered in Kenya." "It refers to brutal acts? My Lord, as I remember there were allegations of brutal acts on both sides. I understood.." "Was this in j ant to cover both? I understood it so, because it doesn't specify, it merely says the brutal acts committed against the innocent women and children. : In that context I would assume, My Lord, that women and

2 children, no matter what racial groups, would be considered as innocent'"'. "You have in mind the allegations that there were "brutal acts "by the troops and by the Mau-Mau? I would understand it to include any brutal acts". "Obviously it referred to either of the two or both, and then it says 'we demand the withdrawal of troops', what is that for? My Lord, it was felt that the troops in Kenya were aggravating the position. That is how I understood that part of it." "Were they not there to deal with the brutal acts of the Mau-Mau? My Lords, that might havebaen the intention." "And if they were to be withdrawn, wouldn't the brutal acts continue then? My Lords, I would say that there was an equal possibility of the brutal acts ceasing on both sides if they were withdrawn". "To the knowledge of the people at this conference, were the brutal acts by the Mau-Mau committed against the troops or against the civilians in Kenya? My Lords, according to newspaper reports at the time, which would be our source of information, atrocities were being committed by both sides and included women and children, both European and Kikuyu". "My question was, according to what one knew from newspaper sources, were the brutal acts by the Mau-May committed against the troops or against civilians? There were reports of them being committed against civilians. I drn't remember a specific reference to atrocities against troops." "According to the newspaper teports, were the troops brought into deal with the Mau-Mau acts against civilians? I wouldn't say that that was their specific purpose, that would be a matter of opinion I think, My Lord. My Lord, it would depend

3 on which newspaper one read". "You were dealing with this particular resolution and you may proceed then, whether there was any resolution lauding communist countries, I think? My Lord, yes I think the final resolution was a support for the Congress of the People." I * don't know, My Lord, something seems to have gone wrong with the record there, My Lord. BY ME. JUSTICE RUMPFF s That last question was a reference back to the first question asked. BY MR. FLCH^R : But the answer appears to have no relation with the question. BY MR. JUSTICE RUMPFF s The question of Mr. Adams was, "Was there ever a resolution adopted lauding...", I think I came hack to that. MR. FISCH.R s But the answer to the last question appears - doesn't answer the question, there seems to be something left out. Now My Lord, with respect, one suggests that Your Lordship was joining issue here with the and Your Lordship was entering into the arena, Your Lordship was, w say in an unimportant manner here witness, taking part ina debate which would prevent a fair assessment of the witness. That will be illustrated, we submit more forcibly presently. My Lord, women's passes were being dealt with in a passage at page I think there was talk of the demonstration to the Union Buildings, that was extra-parliamentary action, My Lord, it may be

4 described as unconstitutional, this is merely the end of the answers on page 1^233, and then His Lordship Mr. Justice Bekker said, "In what language did you...? Just gave a summary of what action the women should take if it became law that passes should be carried." "What terms didyou describe it? As a matter Congress would have to decide on. It is about ten or twelve lines,_ My Lord, may I read it?" His Lordship said "Yes, please", and she then read a portion of this document, "Facing this grim threat the African men and women have determined that the indignity of the pass system shall not be extended to African women, their determination is clear. The question is not shall we carry passes or not, but what action shall we take when we are told to take out our passes". And then lower down, "This article was written shortly before that, that was January the 6th", and she «aid, "I said this question demands an answer from the liberatoiy movement. The struggle against thepass laws is not a matter for African women alone, it is not a matter for the African people alone, it is part and parcel of the struggle for liberation." Lordship Mr. Justice Kennedy asked, And then His "What do you mean by saying that this question demands an answer from the liberatory movement? It was a question which I felt women alone could not answer. decide on any act of defiance, It was not fbir them to it was a question which would have to be answered at some time, but not by the African women alone but by the whole Congress." And then, My Lord, at the next page, Your Lordship asked a question, and again His Lordship Mr. Justice Kennedy said,

5 "And was it not a settled decision arrived at not to carry passes by women? To, My Lords, we have said women don't want passes, that was our cry, women don't want passes." "Not that 'we will not carry passes'? My Lord, that may have been said on occasion, I wouldn't deny that in a mood of resentment that may have been expressed, but that was not a policy statement, we were restricting ourselves to 'women don't want passes'." And then Your Lordship with respect proceeded to what we submit is a cross-examination ; "What is the meaning of the phrase you have referred to if it was not a question of carrying passes or not? Yes, I sjg it here My Lord." "Would you just read that again? Yes. 'The question is not shall we carry passes or not, but what action shall we take when we are told to take out passes". "Yes, well, what does that mean? Doesn't that mean that no passes shall be carried? That is not the question at all don't carry passes? Yes, My Lord." "What does it mean then? The question whether or not women shall carry passes? They had not got as faras that My Lord, they are saying what action shall we take when we are told to carry passes." "Is that your construction of that sentence? I am trying now My Lords to think over clearly what I had in mind then, and I think I am correct in construing it in this wa^". "You construe it as meaning that at that stage there was no need to carry passes? There was no need to carry passes then." "I am not asking that, I am asking is that the meaning of the phrase, to indicate that at that time there was no need to carry passes? There was no requirement for

6 J women to carry asses. Is that the meaning which you put on that? My Lord, I think I was taking it into the future, "but what I did intend here, My Lords.." "As you read it here, Mrs. Joseph, the impression that I got from listening to it was that this was an exhortation telling women, look it is not a question whether we shall carry passes or not, that has been finally disposed of, we won't carry them. I am now reading into it, we don't carry passes, but what exactly we will do when the time comes, that it is made law, well that will have to be decided, "chat is the impression I got? I can see, My Lord, that it is capable of that impression - interpretation, I must concede that it is capable of that." Now My Lord, undoubtedly Your Lordship was probably correct, but it is a demonstration at an early stage, with respect My Lord, of something which we submit unfortunately became much stronger later, witness to interpret Your Lordship endeavouring to get the documents in a different way from the witness' own interpretation. The witness at th^ end comes back to this, at the end of this question - answer, comes back to this, line 19 of page 14237, "In fact my article was intended, My Lord, to be a challenge to the Congress movement to face this decision, because it appeared then as if the compulsory taking of passes was likely to come within a short time." My Lords, I turn to page I think that the witness had dealt with People's Democracy in the Freedom Charter, and her view was that it meant nothing more than universal franchise, and at - yes, My Lord, she had in fact said so quite distinctly. I turn to line 24 on page "It does suggest that changes must be reached and certainly it

7 refers to a People's Democracy as "being the ideal state which th^re should be, but the lecture itself explains what is meant "by a People's Democracy, and it is avery broad statement relating entirely to the representative system. There is certainly no suggestion of a communist state, although it does most certainly suggest thatt the changes in the freedom charter will "bring about a democratic state or a people's democracy, a people's democratic government which would solve the problem in South Africa. My Lords, may I just ask, I think I was asked also if these lectures would be in conflict with the policy of my organisation". And Adams asked, "Yes, Mrs. Joseph, the Federation of South African Women and the Congress of Democrat?", and His Lordship Mr. Justice Kennedy asked her to "answer yes or no?, and she answered "Yes, My Lord, the answer is that they are not in conflict with our policy." Then Your Lordship asked, "Have you come across a reference to a People's Democracy in any of your own organisation's publications, or the African National Congress publications, as meaning a country like Great Britain". Now that question, My Lord, we submit is a direct challenge to the witness... BY MB. JUSTICE RUMPFF : You will bear in mind, I think, just for completeness of your argument, that I think this witness had said that in her view Great Britain was like a People's Democracy. BY MR. FISCHER ; That is correct, that was her view and that was how she accepted it. She says, "I do not remember specific comparisons of tha^nature, My Lord, it is a little

8 "IT i difficult to give a very very definite answer there, I don't remeber". Your Lordship repeats the question, "Have you ever come across a reference to a People's Democracy as meaning any country in the West? In other words is there any document referring to a non-communist country as a People's Democracy? Is there any reference in any document of the African National Congress or your own organisation which you can think of?" Now My Lord, v with respect, our submission is that these two questions demonstrate what a cross-examin/er does, and it would be a cross-examiner endeavouring to demonstrate that a People's Democracy as used by the Congress movement meant something different from universal adultfranchise. She doesn't recall a document. And then Your Lordship proceeds "Well, in political jargon you have two phrases, a democracy and a people's democracy", Your Lordship insists on going further on the question of people's democracy. "They are used," she says, "interchangeably. I don't distinguish between them". "Why? Why should you use them interchangeably? Why add to the word democracy a people's democracy, and what other democracy could it be? -- My lead, when I speak of a democracy I might add here in South Africa, I might well add a people's democracy because South Africa claims to be a democratic governm nt - a lemocratic country, but our argument is that it is not a democratic country. I would suggest that it is necessary here to be specific." Your Lordship proceeds s "I have said so, yes - you have said so, yes, you have explained what you regard as a people's democracy, that is really why I ask, seeing that i

9 this document refers to the people's democracy and it gois further than mere representation, universal franchise, it goes further. Whether you have any reference, any document, to a people's democracy that dojs not go further than mere universal franchise. Do you follow what I mean? There is in the documents that we have had or at least some of the documents, whenever the-re is a reference to a people's democracy, th re is something further than mere universal franchise, there is an additional element of socialism?" Now, My Lords, I pause for one moment, and submit very respectfully that one of the questions which this Court may have to decide is what the documents of any organisation do mean, whether they do in fact go further than when they speak of a people's democracy, go further than meaning universal franchise, and Your Lordship here is putting a question from the extremely important and weighty position Your Lordship occupies as the Presiding Judge, a question which the witness might find difficult to resist, a witness might find difficult to suggest to Your Lordship that it might be a mistaken view of the document, at any rate at this stage of the case. Your Lordship's next question is, "You have not conveyed it I say in the documents or in most of the documents that I have seen in this case in which th^re is a reference to a people's democracy, a democracy to which that document refers is a democracy with an extra something beyond universal franchise, and that extra always seems, in the documents I have seen, to be a touch of socialism. I call it that in that vague manner because some don't go further than that?" My Lord, that may w^ll b^, so in view of the conditions in South

10 Africa, it may well be so. 1 ' Apparently My Lords, there is some agreement that came from the witness, and Your Lordship asks, "Why should you then personally have that view that a people's democracy is exactly the same as a democracy meaning universal franchise?" My Lord, with respect, that clearly suggests to the witness that the - that Your Lordship is not accepting the witness, does not believe the witness, it seems, My Lord, with respect, to be putting the proposition that the witness should not be entitled to hold th&t view. My Lords, on the next page, Your Lordship continues with these questions as follows ; "In terms of your usage of the word, is Western Germany a democracy today? I am trying to think, My Lord." "Is France today a people's democracy? Yes, France I would answer moreclearly on, France, I think it is Atrue also to say that Western Germany is styled a "My question is if you were on a platform and democratic..." addressing your Federation, would you call Western Germany a people's democracy? I think I would yes, I think so because as far as my knowledge goes I would.'' "Would you call China a people's democracy? Yes, I would, My Lord." "And Western Germany? Yes, I would, My Lord." That I think is the third time Your Lordship has asked about Western G.rmany, and one suggests My Lord that a question of that kind repeated three times clearly conveys Your Lordship's scepticism to the witness, it clearly would have an effect upon the confidence of the witness to present her case. My Lords, the next passage is twenty pages further on, at Your Lordship says in lines five to ten, the witness had b:,en asked whther it was also a fact that the South African Peace Council considered

11 that the existence of the rale of foreign nations over colonial peoples was a threat to peace in the world, and her answer being "Yes, My Lord, the South African Peace Council held that view and expressed it." Then the examination proceeded, "Why would it be regarded as a threat to peace in the world? My Lords, because it was the view of the Peace Council that as long as thera was foreign rule over colonial countries, there was a possibility of violent conflict which might in turn lead to the extension of that conflict, possibly between the major powers which could result in a very extensive war." Now My Lords, from here on we submit that with respect a political debate commenced, and I say i advance so that Your Lordships will realise why I am reading the passage, that it suggests to anyone listening to it that the learned Judge's design was to show that this view held about peace was either unsound or not honest. Your Lordship will notice that the question "Thy?" is asked three times. "Why would it be regarded is a threat to peace?" And in the next paragraph at linj 20, "Why should, on the assumption that there is one country which in its own borders had a situation of a governing class and an oppressed class, on the assumption of ono country having that, why should that cause world powers to start a world war?" The witness answers that, giving her reasons, and then Your Lordship s&ys at the top of the next page "Reference to the last war, might that be an illustration of principle? I am aft.r the principle? My Lords, I think the principle is that..." " 1 s therv. in the view of the Peace Couhcil less chance of war when all rations are completely independent and self-governing? Y.-;s, My Lord, that is definitely our view."

12 "Why should that be? Because My Lord is eliminates one source of conflict which may drag others into its orbit". My Lord, there ayiin there is - three times over Your Lordship was pressing the witness for an of a belief which she holds or says she holds, explanation and which the repeated questioning appears to query. Now My Lord, we say that this political debate about which we complain appears more strongly even in the next passage, a passage which I read yesterday from page 14282, and I don't wish to read it again, My Lord, it relates to the possible difference in an attitude towards the Protectorates and and attitude towards Malaya. BY I.IR. JUSTICE RUMPFF : This is starting with the question at the to of page 14282, "By mr. Levy,: Did the Peace Council ever express the view that British control of the Protectorates is a threat to peace"? BY ME. FISCHER : The witness had apparently not considered, as Your Lordship would see later on on that same page, whether th.re was a difference or whether she had a different vijw about Malaya as compared with the Protectorate in this country. BY MR. JU3TIC..J RUMPFF : I think the topic starts earlier. BY ~R. FISCHER 2 I think that is so, My Lord, I think the topic is... BY LIE. JUSTICE RUMPFF s When it comes to Malaya I think the topic starts at page 14281, where Mr. Levy put the question, "Now would you p. 0 ree that in the broad sense of the term

13 imperialism, tht British control of the Protectorates and M alay was both imperialist in nature", and the answer, "In regard to Malaya I would say that it was imperialist and also in the Protectorates". BY MR. FI3EPLR : Thjfcis so, My Lord, from there on the witness is more hesitant about the Protectorates as being colonial countries, as being objectionable in the eyes of the Peace Council in her view. Now My Lord, then in lines 15 to 20 she recognises that she feels some difference, but does not know that it was the view of the Peace Council, and says "I have nev^r heard it discussed by the Peace Council." Now My Lord, thereafter, with gr^at submission, Your Lordship makes a direct suggestion to her that it might be different if a Communist P irty had existed in Swaziland and was fighting for liberation. My Lord, there had been no question in the previous examination as to whether the communist party or the existence of a communist party had anything to do with the matter. That then was introduced by Your Lordship and with respect, My Lord, bearing in mind what role is given to the communist party in the length state summary of facts, it would a pear as if Your Lordship werebringing in something additional. BY MR. JUS II C.J RUMPFF s Lxcept I think it was common cause that in Great Britain the communist party is not an unlawful party? BY MR. FISCHER j I assume that is common cause, My Lord. But this was a question of a communist party in Swaziland, making the whole diff.rence to the witness' view of whether Swaziland was an oppressed country. Your Lordship will see thcxt Malaya is treated as a colonial country

14 which is a danger to world peac. The witness was hesitant about saying the same about Swaziland, and Your Lordship suggested that at such time the difference was the non-existence of a communist party in Swaziland. BY MR. JUoTIC^ RUMIFF ; Well, I don't - the witness mi^ht havebut her answer is, "It might, My Lord, or any party that was agitating." BY MR. FISCHER 2 In other words, My Lord, Your Lordship has successfully obtained part of the confession, but Your Lordship has suggested that the fundamental difference between Mrs. Joseph's view on Malaya and her view on Swaziland is th t in Malaya a communist party exists, and in Swaziland it doesn't. BY MR. JUSTIC J RUMPFF s Yes, well one has to look what previously was asked. BY HF. FISCHER ; My Lord, our submission here is that this is with respect in fact a hostile question, which we might well have obj-ct^d to if it had come from the Crown. There has been no evidence as to any partic lar role played by the communist party in Malaya, or any evidence My Lord as to the Peace Council's view on the operation of a communist party in Malaya or anywhere else. And then, My Lord, in all those circumstances, the suggestion is that the witness Joseph must concede that it would be different, that the Peace Council's views on Swaziland would be different if there were a communist party agitating for independence in Swaziland. My Lord, the

15 next passage is at My Lord herethe topic I think can be picked up from lines 15 to 20. H.re Mr. Levy was cross-examining andasked her, "Would you say that an advance of the national struggle for independence strengthens the cause of «vo rid peace because it eliminates a source of conflict between peoples of all nations? Yes My Lords, I would say so. I think I have expressed my view on that." Then the question proceeds by Your Lordship : "Does it matter whether that struggle for independence is a violent struggle or not? My Lords, the Peace Council would be concerned not only with actual violent struggles but with potential violent struggles and since the Peace Council did regard foreign rule in a country as a potential source of conflict, I think that would be correct, it would regard every advance, even if not ending in a violent conflict, it would regard every advance as being in the interests of peace." ".Svonif such advance is accompanied by a military clash? I am sorry My Lord I did not get your first point. My Lord, I think on balance the Peace Council would take the view that it would deplore and regret the violence but would accept the result that might come as an advance." in "Well, if/the philosophy of the I-eace Council a particular case an advance to national independence would be the strengthening cf the cause of world peace, would it matter in the philosophy of the Peace Council whether that advanceto national in Impendence took place by violence or not? Oh yes, it would matter very much, very much indeed, I cannot see that the Peace Council could approve of any violent struggle." Now My Lords,

16 our submission is with respect, My Lord, that the conclusion which any listener must draw from this, is that Your Lordship was suggesting th t it was immaterial to the Peace Council whether it supported violent action or nonviolent action. Your Lordship will remember that some of the evidence is to show that the Peace Council supports liberation, the idea of liberation everywhere, including South Africa. My Lord, the next passage is at page 14470, and we submit My Lord that this is a questioning which had the effect, with respect, of furthering the Crown's theory which I think Your Lordship will find at 14469, where my learned friend Mr. Liebenberg ut this question in line 23. 'The question is do you or did your organisation hold the view that the possession of a theory of socialism by the working class led to the strengthening of the national liberation movement? My Lords, I don't recall that our organisation ever formulated such a view. It would be difficult for me to say whether it held that view or wh th^r it didn't. I simply do not recall adiscussion." Then the question was taken up by Your Lordship i "Broadly put in a more simple way, was the Congress of Democrats not of opinion that in order to assist the liberation of oppressed people in the colonial countries, it v/as important for the workers in those countries to be politically conscious? Yes, My Lords." "And in order to make them politically conscious one should present them with a theory, they should know what their position ought to be? Yes." "As workers and as oppressed people? Yes, My Lord, that is so." "Of necessity was it not the case then broadly speaking if oii6 is opposed "to imp 6 rial ism and "bho disadvantages of

17 capitalism that one would natuially be favourable to a school of thought or a political school of thought for the workers. That would amount to socialism in the broad sense, I am not narrowing it down to communist socialist, but in the bourgeois socialism sense". Now My Lord, once again bearing in mind the importance which the Grown places upon th.. rolewhich socialist theory plays, Your Lordship with respect will be seen here to be advancing that case in what we submit is a systematic manner, by first of all suggesting that people should be politically conscious, that for this purpose they require a theory and that the bestpossible theory suggested by your Lordship is the theory of socialism in a broad sense. No doubt, My Lords, my learned friends would follow that up by trying to narrow it down. But My Lords, one does suggest with great respect that there is the first step towards an admission. At - the first step, My (Diord, which in fact with respect my learned friend Mr. Liebenberg hadn't been abli to obtain from the witness. My Lords, at page my learned friend put to the witness in line 7, "May I put it to you on a broad basis, Mrs. Joseph, that - is China a form of state today where there is no exploitation of man by man?-r My Lord, that really is not a very broad statement, it is av. : ry specific statement to say there is no exploitation of man by man. I would not be able to give it beyond saying that to the best of my belief the exploitation of man by man is being reduced, but I am really not in a position to make a categorical statement." And Your Lordship followed on ; "Would you say it is being reduced? That is what I understand My Lord, because the people

18 have got more rights than they had "before. It is an assumption." "Would the complete elimination of the exploitation of man by man be achieved in China at a later stage of its development? I really do not know, My Lords, I only see it as a goal towards which people work". "Under what type of state would the complete elimination take place? My Lords, I wish I knew." And then Mr. Lifebenberg followed that up, again My Lord taking the steps in their order, with respect, and said "Is that not the object of the communist theory, Mrs. Joseph". My Lord, at the next page the debate returned to the question of a people's democracy. Once again Mrs. Joseph in the paragraph between lines 10 and 15 says, that she thinks that she would regard Great Britain as a people's democracy, "Yes, I myself would to the extent that people have got the universal franchise". "Only in that limited sense do you regard it as a people's democracy? My Lords, I don't regard that as a limited sphere." And then at the foot of the page Your Lordship says, "Would that be a people's democracy in capital letters? No, I don't know, My Lords, I have never thought of it in terms of capital letters. I suppose I ouldn't put it in capital letters. A people's democracy to me ig a general description of a state in which everybody has the right to decide what form of government they will have." "A people's democracy, a People's Democracy, if the first Mters are capitals, would that make a difference to you? I doubt it, My Lord, I don't think that it would. I haven't really considered it, as I s.y I didn't really think My Lords in terms other than generally a s pe ople's democracies. I know that

19 countries like Rumania and I think Czechoslovakia and Hungary are styled People's Democracies in capital letters." "Why would they be styled like that with capital letters? As a label which has been attached to these countries, My Lord, People's Democracies in capital letters, I have heard them spoken of as the eastern Democracies." Once again, with respect, My Lord, for the second time in this evidence Your Lordship is questioning the witness' belief in what a people's democracy is, a matter no doubt My Lord which the Crown would challenge and did challenge. With respect, in our submission it is not something which Your Lordship should challenge. Now that takes me over a considerable number of pages to page My Lord, I think the situation was that in Mrs, Joseph's possession at the time she was raided, therehad been found one volume of Marx' Capital, and two other books of a socialist or leftist character. At the top of this page she mentions in her evidence, line 1, "No, My Lords, I acquired them, I had them in my possession for a very short time. -hey w-re taken by the police and I have actually nev^r opened the pages. 1 ' That refers not to Capital but to the other two books. She had in fact My Lord, ^iven this evidence before, but had been challenged about it, whether sh- had read them. At the foot of the page, My Lord, Your Lordship investigates the problem. Your Lordship says, "You say you didn't read either of the two books? I think I once read the first two chapters of Das Kapital, My Lords','. "But the other two books? No, My Lord." "You didn't read them? No, My Lord,! must confess there are several books on my shelves I h ven't read." My

20 Lord, that is a v^ry short passage, but with respect again it c^n create only one impression in the mind of the witness, and that is My Lord that the Court is challenging her statement that she did not read the two books. It must in our respectful submission, My Lord, be read as a challenge, because there was nothing here which required elucidation. She had said what she had to say, about the two books. She had been challenged by it, - on it, and had repeated that. So although it is a very short passage, it is a passage of s me significance. And then, My Lord, I come to page This is a passage, My Lord, which I read at considerablelength yesterday, and I do not propose to read the whole of the passage again, but as this is probably the most important passage in the whole of the evidence of this witness, it will have to be examined in detail in order to ascertain what impression it would have made on the witness in particular and on the Accused. My Lord, may I say that our submission, with respect is that these fifteen pages, in the middle of the witness' cross examination by the Crown, constitute fifteen pages of close and systematic cross-examination, something which should have been undertaken, and no doubt would have been undertaken by the Crown, but with respect should not have come from the Bench. My Lord, this can be divided into different topics, but I pause in the beginning to point out that the questioning starts with an entirely hypothetical case, and I want to say before I deal with this hypothetical case which forms the first topic of the cross-examination, that in our respectful submission the Accused could not come to any other conclusion but that the Court with respect, My Lord, was

21 endeavouring to get Mrs. Joseph to say that if fascist oppression could he got rid of "by armed violence, where a minimum of bloodshed would be required, then Mrs. Joseph would approve of that armed violence. BY MR. JUSTICE RUMPFF S This flows from a phrase at the beginning of page 14512, "there must be a deeisive action to defeat fascism in South Africa". I think that is where it emanates from. BY MR. FISCHER? That is so. And our respectful submission is that taking that together with the cross-examination, makes it clear that there can be no otha^ object in this passage but to endeevour to obtain from Mrs. Joseph a confession that she would in the circumstances approve of violent armed action, and I would ask the Court, My Lords, to observe the metnod in which, with respect, this is built up. Now, Your - the question starts, "If you had a country with a fascist government using the organs of state and the armed forces of the government,.and you had a majority of people suppressed by the fascist government, a big majority of the people compared with the minority who exercise the government, what would you put as of prime importance, the achievement of liberation or the method of achievement". Now that in itself is a Very difficult question and must with r.spect have had the witness wondering what was coming. That of course, My Lord, is apart from the fact that the witness must have been wondering why hypothetical questions were being employs. She queries that, My Lord, and then the next question is, "$ot actually what you would

22 support, what would you put as of primary importance, the liberation of an oppressed people of the method of such liberation? " She replies that she cannot separate them, liberation through peaceful methods. Now My Lord, the next question advances to a clearer statement, and its gist appears from lino 6 on page 14513? when these words follow s "What would your attitude be if you had a country where a mass of people were governed by fascist government, but they had arms and if they wanted to, they could by means of those arms in a very short clash get rid of the fascist government and its authority and its oppression with a minimum sacrifice as far as they are concerned?" My Lords, we submit there can only be one object with respect in asking a question like this, and that is to endeavour to establish that the witness and possibly the organisations to which she belongs, would in certain circumstances favour a violent revolution. Your Lordships will bear in mind that by this time of course the witness had stated over and over again that she was in favour of non-violent methods. Her answer is, "My Lord, there could never be a minimum sacrifice, in such a situation". But Your Lordship presses her, in order first of all to obtain a point of view on a hypothetical case, "What would your point of view be?" She tries to answer that, and for the thiatd time Your lordship asks the same question, but g ves is a different form, " ould you condemn an armed conflict in thosecircui.stances even if you might not support it?". can there be any doubt that this is an effort My Lord, to extract a smaller confession than the first question was designed

23 to extract. The witness' answer is "I would regret it, I am not sure if I were actually asked to express an opinion then, My Lords, I think I would because I condemn all wars, all armed conflicts". And Your Lordship presses it again, "But would you in those circumstances? Yes, My Lord". For the fifth time, "Would you condemn the oppressed masses for using violence?" My Lord, with respect this gives it a different flavour again, "Would you condemn all use of violence in throwing off the fascist government". And in the next question at line 6, for the sixth time, "Would you condemn it" and the witness answers, "If it came as a conscious decision on the part of the people I would, My Lords". My Lords, with respect, Your Lordship was not satisfied even with six questions of this nature, because at line 15 Your Lordship returns to the hypothetical position, this is on page 14514, and with respect theprocess starts again s "Well, assume you had a fascist government which in order to entrench itself as a government passed measures to suppress that part of the population in the country which it governed. In other words, as you put it, there was a movement in that hypothetical case by the government of that particular country, and if the people had arms, would you then condemn the use of those arms by the people in an effort to shake off the government." My Lord, I remind Your Lordship that this is the seventh time this question has been asked. BY :ffi. JUSTICE FJMPFF t Except tha you will see the answer to the question just before, which presumably gave rise to this question, and the answer.

24 BY MR. FISCKoR : Your Lordship is referring to the answer at line 6? BY MR. JUSTIC -i RUMPFF ; 14514, "You would condemn it? If it came as a conscious decision on the part of the people I would, My Lord. I make that distinction My Lord because th^re are other situations in which there has been a movement on both sides, a movement forward of the people and a movement simultaneously from the forces of authority. In those circumstances, My Lord, let me say I deplore it and I regret it, I might not say I would condemn one side or the other in such a case", and then follows the question again... BY MR. FI30H^R s But My Lord, with respect was Your Lordship then trying to get the... BY MR. JUSTICE RUMPFF ; The witness hex'e quoted the possibility of a case where th. re were two movements. BY m. FISGHeR s Whiere th-remight be an attack from the socalled ruling class. BY MR. JUSTICE FJMIFF; A simultaneous movement she says, then she would deplore it, "I might not say I would condemn one side", and then the further questioning went en. BY MR. FISCHER : Your Lordship will realise that this all flows from a hypothetical question, and that at any rate to the outsider, My Lord, this must appear to be the

25 precise procedure and method which the cross-examiner would adopt. My Lords, in the next question, it is again repeated. "Yes, "but assume the position was such that that majority of people, oppressed as they are, could by a short, violent clash get rid of their fascist government and establish a people's democracy". My Lord, I think with respect this is a double question, and she is asked, "Would you regret it", and she says "Yes 1. Your Lordship does not rest with that, YourLordship repeats "Would you condemn it? I would both regret and condemn any movement by the people to start and armed conflict, no matter for what purpose, My Lord." Now My Lord, Your Lordship then proceeded to demonstrate or to explain to the witness why Your Lordship had asked these questions. Your Lordship said, "Why I am asking you is this, would that be the attitude of the Congress of Democrats." Now My Lord, the very essence of the indictment is that the Congresses held a policy of violence. Your Lordship is here with respect, and that perhaps quite unconsciously, taking up the cudgels for the Crown in order to endeavour to establish this essential and crucial feature in'the Crown's case. My Lord, if the Crown had asked nine times over the question, the hypothetical question about the approval of violence, I have little doubt that Your Lordship would have interfered. The Crown might well have taken up the question on the policy of the Congress of Democrats, but with respect, My Lord, it was not for the ^ench to make the suggestion that the Congress of Democrats might approve of violence if there could be success in ashort, sharp clash. And the witness replies, "There, My Lord, I have

26 been speaking for myself. I don't recallthat we ever had an actual discussion of this nature. This is the first time perhaps that I vocalise my own th/oughts towards it. I know that what I have said does reflect my own personal point of view." Then Your Lordship with respect goes further, and Your Lordship asks the witness to express an opinion - in the first question at line 5 Your Lordship had asked what the attitude of the Congress of Democrats was. The witness, not having defined that attitude, Your Lordship then asked what her opinion was, knowing the Congress as she knew it. "What is your opinion about the view of that leadership concerning this matter that we have discussed." ^er answer is, "My Lord, I think that we are so wedded to the non-violent method and the fact that they must ultimately prevail, that I feel that the people in the leadership of the Congress of Democrats would agree with me." Now My Lord, our submission is that the next question is with respect a very serious question in the light of the departure from the usual rule, because Your Lordship says, "I am asking you this, because of the evidence that is before us. Have you ever in any document or speech condemned the violence used by an oppressed people to throw off their oppressors". Now My Lord, first of all that suggestion, with all the weight that pertained to it because it comes from Your Lordship, that the evidence suggests that in fact the Congress would approve of violence - of a violent short sharp clash... BY MR. JUSTICE RUMPFF : N No, no, if I may interrupt you. You mean "I am asking you this because of the evidence that is before the Court".

27 BY MR. FISCHER ; That is so, My Lord. I regret My Lord, at the moment I cannot really... BY MR. JUSTICE RUMPFF ; That must be bound up immediately with what follows, the condemnation issue that has immdiately gone before this, whether there would be condemnation, and that appears in line 3> there is a reference to the condemnation, and this is followed immediately "Does any document or speech - is there any document or speech in which you condemn the violence by an oppressed people to throw off the government". BY MR. FISOHeR : My Lord, I say this with respect, the gist of this question was to ascertain whether Mrs Joseph or the Congress of Democrats would approve of violence if it were to produce a victory after a short sharp clash. Nine questions were devoted to that theme. BY MR. JUSTICE RUMPFF s Yes, well that is your submission. BY MR. FISCHER ; That is my submission, My Lord. Then on page Your Lordship approaches it from a different point of view. Afterall M7 Lord, the question as to whether someone would condemn it is only a subsidiary question as to whether the person approves, it is only a different way of establishing the main problem which was posed by the hypothetical question at the beginning. With respect, My Lord, the presence of absence of condemnation of violence is only relevant because the indictment alleges the existence of a violent policy, otherwise My Lord no one

28 would ask about the presence or absence of condemnation. i So that is a subsidiary or corrolary question to the question of whether Helen Joseph or the Congress itself approves of violence, and therefore our submission is My Lord that anyone hearing the 24th line of this page, "I am asking you this because of the evidence in this case," must come to the conclusion that there is evidence that the policy is violent, and that conclusion must be fortified, must be fortified by the reference, the suggestion which came from His Lordship that there was no document or speech which ever condemned violence. Again that tecomes quite irrelevant, unless it is related to the central question as to whether there is a policy of violence. Again, My Lord, something with respect that would be legitiete in cross-examination by the Crown, but not My Lord coming from the Bench. Now My Lord, I want to examine the last four lines of the past passage mentioned a little more carefully. Following on the statement about the evidence, the sentence roads, " u avc you ever in any document or speech condemned the violence used by an oppressed people to throw off their oppressive government". in ow with respect, My Lord, we say that in addition this is - amounts to a direct effort to get the witness to contradict her statement about her belief in non-violence. This is her statement, "I don't agree with violence, I believe that the strug le should be non-violent," and from the Bench comes the question, "But have you ever said so in any document or speech". The only inference, with respect, is that the Bench either does not believe the witness, or is giving the witness an opportunity of changing her previous statement. And in the circumstances

29 of this case, therefore, My Lord, with great respect, it becomes pressure put on the witness to get from her an admission directly relating to the - to her own hostile intent in terms of the indictment, or the hostile intent displayed by the policy of any of the organisations to which she belonged. CASE REMANDED TC THE 24TH AUGUST, I960. COURT ADJOURNS.

30 /8 A9 60 MR. FISCHER; May It please your lordships, at 1 the adjournment yesterday I was dealing with the passage at the foot of page I was pointing out, my lord, that your lordships having asked the series of questions relating to the possible desire f the Congress of Demo- orats to use violence, then your lordship proceeded to 5 ask whether violence had ever been condemned, and your lordships will notice that that question is asked three times, once at the foot of page 14515, and then again at the top of page it actually starts on the previous page, "Why did you not do s "; then your 1 lordship illustrates that from Kenya, and your lordship says: "Well, let's take the oase of Kenya and Mau Mau. Has it ever condemned the use of violence by the Mau Mau people? (A) I don't know, as far as the Mau Mau is ^ concerned, my lord, there is a great division of opinion whether there was in fact Mau Mau." Then your lordship said; Our submission, my lord, is that this is a rebuke which was not really justified: "Mrs. Joseph, are you putting this to us now, that we as a Court of Law should find that there were no Mau Mau". My lord, then the question proceeds in the next paragraph on the basis of what appears in the papers. Your lordship says then your lordship and the witness might meet on more or less equal grounds there. My lords, our submission about this kind of questioning is that it represents in our submission what has been described in relation to cross examination as a duel between minds. If your lordships will now turn to page 14517,

31 , your lordships will see that the question returns to the problem of the condemnation of violense, and the exact question is asked another three times, on page at line 13, at line 24 and on the next page, and again in the next page at line 18. But there your lordship puts it in a somewhat more forceful way because your lordship relies upon your lordship's memory of the evidence. Your lordship puts it to the witness, "And in not a single instance that I can think of - that's why I am putting it to you - in not a single instance was the violence adopted by the oppressed people condemned". That your lordship had done earlier at line 5 in a slightly different respect by saying : "That to ascertain whether either you or the Congress of Democrats ever treated both parties on the same basis, because the impression that I have - that is looking at the documents published - - it was squarely put on the Government " My lords, our submission is that after this repetition of the questions, your lordship will not regard it as unfair if the submission is made that at the foot of page your lordship in fact questions the bona fides of the witness' acceptance of the policy of non-violence. "Would it be right to say that a sondemnation of violence in the opinion of the Congress of Democrats depends on the situation". Now, my lord, that is developed, and your lordship suggests that it might be merely an expedient because at the present stage it might be suicidal. In other words, my lords, with great respect, as we read this, the suggestion is that if it were expedient to use violence, then violence

32 would be uaed, and consequently, my lords, the inference is that your lordship was questioning the bona fides of the witness' belief. Your lordship will see that in the last paragraph on page half way through the question, there is the sentence, "So for any organisation to make headway among the masses it would be essential to propagate a policy of non-violence, not so, because it would be suicidal to propagate violence in the circumstances. It depends on the situation where you are. That is why I am asking you the question, to test the real approach to the problem by yourself, and by the Congress of Democrats. I'm putting to you the difference between the expressions of non-violence in this country, and the failure on the face of it - - on the face of the documents at least - the failure to condemn violence in other countries where circumstances existed more or less shall I say the same as here." My lords, we offer a further criticism of that question. There is no evidence before the Court of the circumtances in any one of these countries referred to being more or less the same as here. There is indeed, my lord, no evidence that violence was used, because there is no evidence about those countries at all, and with great resnect, my lords, we therefore offer the criticism that what your lordship did was to make an unwarranted assumption of fact, a judicial knowledge of facts, not before this Court - and facts on which a judicial assumption should not have been made, in order to face the witness with a problem. Your lordship mentions that as a problem, because your lordship goes

33 on to say "Whether oppressed people actually were said to have used violence5 you see the conflict? (A) I gee, my lords, but that would suggest that non-violence is purely a matter of expediency in South Africa " the witness takes the matter up, my lords, "...I have never seen it here, my lords." And your lordship says, "That is my difficulty". Now, my lords, the next question - the next answer is of significance. Your lordship said; "That is why I am putting it to you", and the witness says: "I can see where your lordship is leading, but, my lords, I have never seen it as a matter of expediency". So, my lords, with great respect, your lordship has there created the impression to the witness that your lordship is leading to a point. Now, my lords, notwithstanding that, the same problem is pursued by your lordship by referring immediately thereafter to China. ("Q) Well, now, take the case of - - if I may go one step further - China, which is a country which has been referred to in a number of documents. That ought to be admired. Now I think we can assume that the liberation of China did not take place in a non-violent manner". My lords, I suggest that again the Court has gone outside of the facts and has in fact got a concession from the witness; the witness, your lordships will realise was defending her belief, in a policy of nonviolence, and it may be that it was this long strenuous examination that caused the witness on this day to break down when she reached the gaol on the evening of that day.

34 16634 Then your lordship proceedsnow, did the Congress of Democrats ever in putting up China as an example to the constitution to be adopted - I'm putting it squarely in that form in the interests of the oppressed people - did it ever in the same breath. condemn the violence?" My lords, I'm not Raking your lordships to take any judicial knowledge of China now, but there were very complicated circumstances of civil war, international war, which would all have to be debated if one were to draw some comparison, but, my lords, to the best of my knowledge there was never any suggestion in any Congress of Democrats document that the Chinese constitution should be put up as an example to be adopted in this country. Again, my lords, this must have had a very great impact on the witness who, after all, would be looking to your lordship as expressing authoritative balanced views. It would be very difficult for a witness, my lords, as indeed it is for Counsel; to suggest that a learned Judge is erring in putting evidence, or the effect of evidence, to witnesses And, finally, my lords, the question is repeated for the third time, "Then it is for that reason I'm really asking you the question; did the view, the point of view as regards non-violence - was that not a point of view which depended on circumstances?" BEKEE R J% Where is that, Mr. Fischer? MR. FISCHERs That's at page 14521, my lord, line 5. My lords, from that page, line 25, there follow six pages up to page 14527, of what, with respect,

35 I submit I am entitled to term a debate on the problems of a nationwide strike. Now your lordship started "by questioning the witness on a conception termed 'relative violence'. "Did the Congress of Democrats support the principle of the African National Congress, that in order to achieve its aims it may be necessary to engage in a unionwide struggle"5 that is on the question of relative violence. Now your lordship will see that your lordship assumed throughout this discussion that the State might use violence; for instance at line 10 on page your lordship puts it in this form: "Did the Congress realise that in the case of an ultimate strike, which would be an indication of the failure of any negotiations prior to that, that thece might be violence used by the State to break the strike?" Now, my lords, the witness resisted the suggestion that - - a s I remember - - violence was necessary or an essential part of this, and your lordship will see on page 14523? halfway down the page, that the question then took this form: "And in that case, if there were ever a strike on that scale and there were arrests on a large scale, did the Congress of Democrats envisage the possibility of violence?" The witness, having been unwilling to say that she thought so - your lordship asked whether the Congress envisaged that possibility, and when the witness resisted that your lordship followed that up in the last paragraph but one on that page by asking "Was there a likelihood of this happening". My lords, I say, with respect, that your lordship in re-reading these pages, that is pages 14523

36 » will find that considerable efforts were made to get the witness to agree that in a nationwide strike both she and the organisation to which she belonged must have envisaged that violence would occur and therefore that that was the Congress of Democrats' policy. I just take a few of the questions, my lords: Your lordship had asked whether they envisaged it and whether there was a likelihood of it happening, and at your lordship said: ( M Q) Now, in that atmosphere, having regard to the feet that the Government of to-day is as hard as a rock, and the Congress Alliance is determined to carry on, what would the Congress of Democrats - or you for that matter - what would you envisage might happen". My lords, I emphasise this passage because two pages later I shall return to this when your lordship discussed the possible reconciliation of the witness 1 policy with what were called the hard facts of life. But the witness is pressed here about envisaging violence in the next paragraph... RUMFF? J; Just before you go on, in regard to the repetition of the questioning, if I may call it that, have you also noticed the answers? MR. FISCHER; Yes, iqjr lord, I realise that very often the answers are profuse, a nd I would ask your lordships to make allowances for that; I'm not criticising in any sense your lordship's repetition of a question which is required to clear up the answer. RUIEFFF J; Yes, well, the impression that is gained readi.ng from the record as it stands is that

37 16637* in a few cases the answer appears to "be an answer to the question directly; there may be an answer and then a question on that answer... MR. FISCHER: And, of course, I'm making no point of that, my lord. If I have erroneously included such questions then your lordship will forgive me. But your lordship will see.. here it is "What did you envisage" and "If thestrike is on a nationwide scale would you-exclude violence completely"... RUMPFF Js Where is that? MR. FISCHER: At the foot of page 14524, my lord. Your lordship will see that that is a case in point; in the second line of 14525, "What do you envisage to resist provocation" - - I think that, my lord, might not be an answer to your lordship's question. Your lordship repeated that, "What do you envisage in that, if I may call it, final plan"? (A) My lord, I envisage it this way, that we woulc not embark upon something of this nature which would be of such a vast character unless we had good reason to believe that our people would be disciplined. We would not go into it rashly, my lords." Then your lordship says: "That must be the hope? (A Yes, it would be". "(Q) But what would the expectation be". Our submission, my lord, is that that surely, with respect, would be an indication to the witness to the witness that your lordship thought that the expectation should be that there would be violence and bloodshed. RUMPFF Well, here is also an example - looking at the question and answer of the original question, what she would envisage - "What do you envisage"

38 at the top of page 25, 14525, "What do you envisage to resist provocation". The a the question is repeated, "What do you envisage in that - if I may call it - final plan". Then she says, "My lord, I envisage it this way, that we would not embark upon something of this nature which would be of such a vast character unless we had good reason to believe that our people would be disciplined" "We would not go into it rashly." Now, so far the answer has not been given, what would she envisage. Then the question comes from me, "That must be the hope", in terms of that answer, and she says "Yes." Now, switching over from the word 'envisage', the expectation - that the expectation, what would the expectation be. I am referring again to these questions, to point out the fact that from the record it appears that no direct answer was given, and that there was an attempt to get an answer. MR. FISCHER; Your lordship will also, I submit, take into account a very full answer which the witness had already given at page 14524, when your lordship had asked what she would envisage, and she had said, my lord - - and perhaps this is not expressed in such a way as one would if one were writing it down and studying the words, but this did give a very clear picture. "I envisagethat there might be, as you say, arrests, but I saw it, and I think others do, that if that situation could be brought about it would not be of long duration. Our people might have to suffer during the time that the pressure would be on the population as a whole; it would not be of very long duration. have to suffer during that time,that Our people might the pressure would

39 be on the population as a whole, because the country would not be able to continue, and therefore negotiations would result." RUMPFF J; Yes. MR. PISCHERs Then at page 14525, my lords, your lordship returns to the idea that a short sharp clash would be acceptable to the Congress of Democrats. You say,my lords, ''Assume that the position would be that the Congress Aliance had reached that stage where it was determined to carry on with a nationwide strike, knowing that the Government were adament, and realising also that the clash would be short because of the organisation of the Congress Alliance, and if I may put it also, realising that although there may be some blood it would be small compared to a nationwide clash, and it would be a very short duration before the victory would be a cthieved, would that be in line with the Congress policy 11. Our submittion, my lords, is that the inference is unmistakable and cannot be escaped, that the witness must have assumed by this time - and that the accused must have assumed by this time - that your lordship was endeavour ing to get the witness to accept as her, and as the Congress policy, that on a lesser scale, not on a scale of great magnitude, but that on a lesser scale,that is the short sharp clash with little blood spilled, the Congress of Democrats had a policy which included the use of violence. And, my lord, from there I passto what perhaps i is the most important part of my argument, because your lordship proceeded, if there were any doubts about the previous passages that were put on page , your lordship proceeded to explain why the question was being

40 asked. Your lordship said, "I'm asking these questions.." 1 RUMPFF J: Where is that? MR. FISCHER; At page the second paragraph, my lord. "I'm asking these questions to see how your evidence about the fundamentals of your policy can be reconciled to the hard facts of life", and the witness 5 answers*. "My lords ; the fundamentals of our policy were reconciled with the hard facts of life in India; it took a long time; they can be reconciled. I believe it, my lords." Your lordship then put quite a different situation, "Except that there may be this difference in India, 10 between India and this country, that the very idea of non-violence as propagated by Ghandi is an idea which according to bhe evidence as such has not been propagated to the S8me extent and in the same particular manner? (A) It started here, my lords". ^ Now, my lord, if your lordships will bear with me I will, endeavour to analyse this briefly. RUMPFF Ji Yes. FISCHER; It suggests, my lord, that your lordship knows what are the hard facts of life, although 20 there is no evidence about that. It suggests further, my lords,,. RUMPFF J: Fnat do you suggest it meant, in the question? MR. FISCHER; I suggest, my lord, that if your lordship refers back to page 14524, "If the Government is hard as a rock". The whole debate, my lord, after all turns - and really this case turns - on the question of whether one can expect to change European opinion in this country, J

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