notes. It was not in other words a replica and should accordingly not be regarded as a proper or fitting document

Transcription

1 9420 notes. It was not in other words a replica and should accordingly not be regarded as a proper or fitting document from which the witness should "be permitted to refresh his memory, We are not unmindful of the fact that if a witness is allowed to refresh his memory from extracts taken "by him from other notes which he then destroys the door leading to a variety of malpractices might be opened. In such a case a witness, if influenced by improper motives, could without fear of detection, insert or omit matters in his extracts to suit his own ends. This appears to be the reason for the rule that the original and the original only must be available. If it were shown in the present instance that such a possibility existed, then reasons may by the same token exist why the leave presently sought should be refused, at least on this score, but this was never suggested to the witness by cross examining Counsel, and I think nor even in argument, and we must accordingly assume, for present purposes, that his extracts correctly and faithfully represented those portions of his notes which were complete in the sense mentioned earlier on. In other words, that they accurately embodied what the various speakers had said, save perhaps illegible matters or matters not capable of understanding by the witness, or incompleted sentences. The fact that the witness might have omitted these matters in his report enabled Mr. Kentridge, however, to argue that it might lead to a possibility of prejudice on the part of the accused. An incomplete sentence and illegible word or matters not capable of understanding by the witness might, so it was contended, assist an

2 9421 accused person to revive or refresh his own memory and thus enable him to place what has been said in its true perspective or proper context. It might even enable examining Counsel to do away with the effect of the witness* testimony, and, concluded Counsel, if the present witness is to be allowed to refresh his memory on this report, the Defence would be robbed of this possible advantage. Whilst we recognise the force in this contention there are nevertheless other matters which require consideration. On the evidence before us we are unable to ascertain how much, or to what extent the report failed to embody matters which might have appeared in the original notes. It might be very little or negligible. On the other hand, the omissions might have been substantial. Accordingly, the possibility of prejudice might be remote or real. This latter possibility usually suffices in a criminal trial for the exercise of a discretion in favour of an accused person, but in the present instance the witness admitted that it was generally speaking impossible to record every word spoken by the various speakers. Of necessity, therefore, his recording consists merely of a series of extracts taken from any particular speech. He also admitted that these extracts might and often were imperfect in the sense that matters incapable of understanding, incomplete sentences and omissions occur. Furthermore, that a possibility might even be present that his recording of the speech might not be reflected in its true context in the absence of matters which he did not, or was unable to record or which were imperfectly recorded 0

3 9422 Bearing these general admissions in mind it seems to us that any advantage which might have accrued to cross examining Counsel if armed with the original notes, instead of the present notes, becomes negligible, and that the possibility of prejudice arising 4>r reasons advanced by the Defence is remote. In all these circumstances it seems to us that we should exercise a discretion in favour of the Crown and that the witness ITgcai is to be allowed to refresh his memory from document G- P 290 That is the Order I propose raakirg. RUfrPFF J; KENNEDY J r i I agree» I agree o KENNEDY Ji Objections were taken by Mr Kentridge to the eviderce of the witness White who was recalle d to the Box yesterday morning when he stated he had attended hundreds of meetings of the Communist Party held generally at the Grand Parade? Cape Town, on Lnursdays, prior to the Suppression of Communism Act being pas^u in White seid '.he tenor of these meetings was, inter alia, the exploitation by the Communist Party of any local or national grievances, agitation sgainst Pass Law^s and other matters, and also that there was need to overthrow by violence the Capitalist Government system in South Africa. After some cross examination Mr.Kentridge raised two main objections to the admissibility of the evidence in question* He submitted that as the witness spoke from memory, and as he did not give a recapitulation of what was said by any speaker, least of all the

4 9425 verba assisima of the speaker, his evidence amounted to opinion evidence only, unsupported by a proper foundation. It is clear that this objection is well founded. The Court on the evidence as it stands is not in a position to test the correctness or otherwise of White's conclusions as to the nature or quality of the meetings in this respect. Mr. Hoexter stated that subject to the outcome of the objection raised by the Defence earlier this week, and which hap been dealt with immediately before this present judgment, the Crown might apply for leave to lead further evidence to remedy the defect in White's evidence The second point argued by Mr. Kentridge was that the evidence concerning a tenor to employ violence, to overthrow the present system, fell outside the period covered by the Indictment, That is, before the commencement of the treasonable conspiracy alleged by the Crown* and that therefore the evidence in question was irrelevant. He submitted that it was an attempt by the Crown to establish that the speakers which White had in mind had a propensity to commit criminal acts other than those covered by the Indictment. Coupled with this subif mission Mr. Kentridge argued that/such evidence were tendered to prove a policy of the Communist Party of South Africa, it was inadmissible on the same grounds. A brief reference to the Indictment and Summary of Pacts leads in my view to the destruction of Mr. Kentridge's submissions on these two points. The period fixed in the Indictment is from 1st October, 1952, to 13th December, Part "B" alleges that

5 9424 during the period in question, and with the necessaryhostile intent, the accused conspired with each other with a number of named co-conspirators, and with other persons to the Prosecutor unknown, to subvert and overthrow the State by violence, and to substitute therefor a Communist State or some other State. The Summary of Pacts put up by the Crown in Annexure *i 1 insofar as it is relevant to this issue reads: "The Crown intends to prove the existence of the conspiracy set forth in part "B" of the Indictment by way of inference from the facts set forth in Part "A" of the Summary of Pacts hereunder. 4(a) The existence in the Union of South Africa until 1950 of a South African Commijiist Party which is affiliated with the Communist Party of the U.S.S.R. (b) The aims, purposes aid objects of the S 0A«Communist Party included the following, namely? (l) the overthrow of the South African State and the establisliment in its stead of a Communist State"«. (2) and (3) are not relevant to this judgment. (4-) The propogation of Communism and the undermining of the South African State to prepare for the overthrow thereofo (C) During 1950 the South African Communist Party was dissolved. Thereafter the associations set forth in paragraphs 5 and 7 hereof were infiltrated by members of the defunct South Afiican Communist Party, and such persons were appointed to executive positions in the said associations." At this stage it appears to us to be relevant - the evidence at this stage appears to us to be relevant, at least on the question of the existence of

6 9425 a possible hostile intent. The matter is succintly stated by Wigmore, 2 Wigmore, Evidence, para.434, 3rd Edition, When the existence of an object, condition, quality or tendency at a given time is in issue, the prior existence of it is some indication of its probable exist- ence or continuance at a later stage. The degree of 5 probability of this continuance depends on the chance of intervening circumstances having occurred to bring the evidence to an end." That's the end of that citation from Wigmore, The presumption of continuance is one of 10 fact, not of law, its strength depending on all the circuiatances of the case. See Rex vs. Eourie and Another, 1937, Appellate Division, 3(l). The Crown in my opinion is entitled to tra- verse facts outside the dates covered by the Indictment 15 in order to prove hostile intent. A simple example will I think indicate this. If "A" charged with murdering "B" were heard to have said at a time prior to the period of the Indictment, 'I intend to kill "B" ' no warrant would exist in my view to exclude such evidence as to 20 the state of mind of the accused at the time of the offence. Under these circumstances I hold that the evidence of White is admissible, subject to the qualifi- ^ cation contained in the first point successfully raised by Mr. Kentridge. RUMPFF J: I agree. BEKKER J; I agree. 50

7 9426 MR. HQEXTER; May it please your lordships. My lords, at this stage, in order to save time, I respectfully ask for a brief adjournment for ten or fifteen minutes. I do that with a view to an exploration of the course I indicated to the Court yesterday in connection with White. My lords, in fairness it behoves me to say also that it will be necessary for me to that end to speak to the witness White, I mention this because it was put by your lordships yesterday to my learned friend, Mr. Kentridge, that assuming the validity of his argument based on the lack of verba ibsissima did the evidence of White not remain so far as it rev lated to the existence of the Party and the fact that meetings of the Party were held over a period of time. To that extent, making due allowance for the success of the Defence's argument, White's testimony stands and to that extent presumably, my lords, the witness is still under cross examination, and to that extent on the ordinary rules of etiquette it would not be proper for Counsel for Prosecution to speak to him, but that necessity now inevitably arises. My lords, subject to what my learned friends feel I now respectfully ask for a brief adjournment so that the Crown can consider its position with a view to recalling White or otherwise. RUMPFF J: Is there any objection? MR. FISCHER; to a brief adjournment. We have no objection, my lord, We might just reconsider the whole matter. That is all that is asked for at the moment. (COURT ADJOURNED FOR 15 MINUTES )

8 TEE COURT RESUMING; MR. HOEXTER; May it please your lordships. My lords, in the light of the r uling given this morning by your lordships the Crown proposes to make the application adambrated yesterday to recall Mr, White. My lords, with a view to saving time I now ask that the evidence be resumed of the witness Masokanye who was partially heard, and if it is convenient to the Court and my learned friends, White could then be recalled after the tea interval at half past eleven. I ask this indulgence, my lords, because although White will beasked to refresh his memory from the reports to which reference was made yesterday, and although the cross examination is likely to be a matter of some duration, I want to keep the examination-in-chief as short as possible; if I am given this time now I think it will be possible to dispose of the examination-in-chief in half an hour or an hour. RUMPEF J; What is the position of Masokanye? If we start with him now, or continue with him, should we not carry on with him? MR.HOEXTERs Yes, he will be a short witness, my lord. I think a matter of half an hour or so will be sufficient, my lord, for his examination-in-chief. RUMPPP Jt And would you be in a position to cross examine Masokanye? MR. EE CHER; I'll be in a position to cross examine him, my lord, but I don't know how long it will last because I cannot remember which of his are notes and which are reports. RUMP?? J; Yes. I think this is a good

9 9428 suggestion. MR, FISCHER; I have no objection, my lord; as a natter of fact I have discussed it with my learned friend and I understand that he will lead the witness White in-chief who will then stand down while all reports which are still available will be made available to us* But do you agree that it would be a good suggestion to deal with White and the application at a later stage, and continue with Masokanye and com» plete Masokanye? MR. FISCHERs MR. HQEXTER; As your lordship pleases,. My lord, there is a further com* 10 plication. The witness White has been informed by the Police,through the police,, that his daughter in Cape Town is seriously ill and there are strong compassionate grounds for disposing of his evidence as soon as possible* 15 Now, as far as cross examination is concerned, my lords, assuming that Mosakanye is finished this morning, cross examination included, and assuming White be called today the cross examination will not take long, my learned friends 20 would then be entitled to cross examine on such matter as White uses here today to refresh his memory. If my learned friends, through the witness, establish, asno doubt they will, the existence of further material in Pretoria at Headquarters from which his memory can be further refreshed, that may necessitate White standing 25 down in any event, my lords. That is a possibility to which my learned friend, Mr.Fischer, alludes, I think. RUMPFF Js from White to cany Have you got other witnesses apart on?

10 9429 MR. HOEXTER; Yes, my lord, we have. There is Ngoai and there are other witnesses from the Eastern Cape who are ready. There should be no delay, Mr.Fischer, having regard to this other complication mentioned, and in an attempt to avoid the witness being calls d, taken away and recalled, might ono not consider the possibility of leaving White out altogether at this stage? MR. FISCHER; My lord, I have a different suggestion to make. I wonder whether my learned friend would not be in a position to call White straight away, or after a ten minute adjournment. We will then deal with White as far as possible, and not interrupt him with Masokanye who may take some time. I cannot say at the moment, my lord. RUMPFF J: Well, Mr. Hoexter-'s suggestion was that if he would have a short adjournment, or on his personal part, let Masokanye carry on, he might be in a position to shorten his evidence-in-?chief considerably as far as White is concerned, MR. FISCHER; Yes, my lord. The alternative suggestion is that after a short adjournment my learned friend Mr. Hoexter could carry on with White in any event. Would that make up the time lost by calling Masokanye? MR. FISCHER; Yes, without interrupting by calling Masokanye, my lord, because Masokanye may take some time. Your suggestion is to leave Masokanye?

11 9430 MR. FISCHER: Yes, ray lord, to leave Masokanye out altogether. And give White another twenty minutes? MR. FISCHER; Yes, my lord. Would that he sufficient, do you think? MR. FISCHER; I think half an hour to forty minutes would be sufficient... Well, having regard to the difficulty here I have the unfortunate position of Mr. White, and if his daughter is seriously ill then we don't want to keep him here, MR. FISCHER; That is so, my lord, RUMPFF J: V/ould there be an objection to an ad» journment then till a quarter past eleven? MR. FISCHER; None at all, my lord. But before your lordship adjourns I have something to safc about the rulings of your lordships, with permission, my lord. Yes. MR. FISCHER; I wish to say it now, my lord, because it may save time in future. The Defence is on the first ruling, my lord, that is on the ruling with regard to the report No.G.290, I ask the Court to make a special entry with regard to that ruling, namely as to whether the Court committed an irregularity in ruling that the witness Ngcai could refresh his memory from the document numbered G.29O. Nov/, my lord, that is a special entry which will, of course, I assume, relate to quite a number of documents referred to in future in this case. Well, it is a cautionary entry at this stage. MR. FISCHER; At this stage, my lord, it

12 9431 refers only to this document, my lord. What I will suggest to my learned friend, my lord, is that we do not interrupt the procedure in this Court whenever such a document is produced, but that my learned friend and I keep a list, and at the end of the Crown case we amend this... RUMPFF Jg That is why I say this is acautionary entry at this stage, MR. FISCHER: That is so, my lord, To cover all the others on the same basis, MR. FISCHER; On the same basis, yes, my lord. Then, my lord, with regard to the second ruling, we have drafted a reservation ofthe point of law and the Defence wishes the Court to reserve the general question of law, namely whether the evidence, the object and/or the policy of the Communist Party before 1950 is admissible in this trial, Yes. MR. FISCHER; We think, my lord, that that would cover the whole problem dealt with in the judgment, RUMPFF J: Yes. MR. HOEXTERs I have no objection, my lord, save that it appears to be the third ruling father than the second. Well, the third ruling is the second against the Defence. MR. HOEXTERs MR. FISCHERs As your lordship pleases, That is so, my lord, there is no question about the ruling with regard t o tenor, Yes.

13 9452 ON THE COURT RESUMING AFTER A BRIEF ADJOURNMENT: MR. HOEXTER: My lords, "before tb witness takes stand I will indicate what the Crown proposes. As I have told your lordships the Crown seeks now an attempt to have the White refresh his memory from certain documents. The documents - your lordships will remember that I mentioned 24 yesterday - the documents are Police reports drawn up in Cape Town and submitted to Police Headquarters in Pretoria. The witness White has initialled S,H.W. and he will say that in the case of each of these documents I put to him that where those initials appear, and from other inditia he is able to say that he is the man who in feet typed out that report, that he typed it out, that he compiled the report on his own initiative, in his own language, and that the original notes from which the report is compiled have been destroyed. I propose using today in that manner 17 reports, my lord.... EEKKER J: From what did he prepare these reports? MR. HCEXTER; From his original shorthand notes, my lord. BEKEER Js His shorthand notes? MR. HOEXTER; His own shorthand notes, my lord. THe procedure would be that he would go to a meeting,take shorthand notes there, then on the next day or shortly thereafter in the course of his duties he himself would from his own original shorthand notes type out reports for Head Office in Pretoria... BEKKER J; Extracts from the shorthand notes or full reports? MR. HQS XTER; A report containing verbatim

14 9433 extracts from the speeches, my lord. My lord, perhaps before the witness comes I can take the first report and indicate the form in which it is couched. This is a letter dated the 29th October, 1948, on a Police letter head. It is signed by the Deputy Commissioner, South African Police, commanding Cape Western Division... BEKKER J% What is the name there? MR. HOSEXTER1 De Wet, it appears to be, my lord, and at the foot of the second page the initials S.H.W appear. Then the heading is 'Meeting Communist Party Cape Town 28th October, 1948' and the preamble is "I have the honour to inform you that a meeting of the Communist Party was held on the Grand Parade during the lunch hour on the 28th instant". Then it goes on to give details about the number of persons attending the meeting, whether it was an orderly or disorderly meeting, and who the principal speaker was. Then it say "The first speaker was X", and he said that every worker has become class conscious and so on, and then he begins a verbatim extract from the speech. That verbatim extract carries on for some fifteen lines when it is terminated - a few dots are added - then the witness summarises and refers to certain things, and then he continues; then by the use of quotation marks he gives a further extract from the speech. Then he goes on to the next speaker, my lord, and says "The next speaker X said, inter alia" and then there follows in inverted commas an extract of some fifteen lines from that speech. It will be put to the witness where he quotes a verbatim extract in this fashion, whether the extract is always complete and if it is in any sense incomplete by what means he denotes the fact

15 9454 of the incompleteness. My lords, I'm using seventeen of these reports in this manner; of the remaining seven five are still reports relating to the Communist Party, also drawn up "by this witness, and "bearing his initials in some oases, in others not, and the remaining two, one is a report unfortunately it does not bear the witness's signature, and the other one is an African National Congress Report which is introduced by mistake. So although I am only referring to seventeen, because of what my learned friends have indicated, I make available through the witness the other five reports on which I shall not rely, my lord. I beg leave then, my lords, to recall the witness White., for further examination. RUMPFF J: That is subject to the rights of the Defence to cross examine the witness on the foundation which you propose to lay? MR. HCEXTER; Yes. AS YOUR Lordship pleases. SAMUEL HEMDRIK WHITE S.S ; XD. BY MR. HOEXTER; Mr.White, you told us yesterday that in the course of your duties you took shorthand notes at various meetings of the Communist Party at the Parade in Cape Town. Is that correct? I did. Can you tell the Court what your commonpractice was after attendances at such meetings; did you compile any report? I compiled a report on each meeting I attended. From what did you compile that report? From

16 9435.S.H. WHITE my shorthand notes taken at that meeting. And was that report drafted in your own language? Tes. On your own initiative? Yes. And did you yourself type it out? I did. When you typed out a report in this fashion, Mr. White, did you have any device to indicate the origin of the report, or rather the person who typed it? I invariably put my initials on my reports. What are your initials? S.H.W. These reports were then sent to the Commissioner, South African Police, Pretoris, is that correct? Yes. They would be signed by the Officer Commanding the Cape Western Division? Yes. But are you quite clear on the point that you yourself compiled these reports and typed them? Yes. Would you look at the document I now put before you please and attempt to identify it? This is a report submitted by me on a Communist Meeting.... RUMPFF J-. Has it got a number? MR. HOEXTER; No, my lord, it is not it won't be handed in at this stage. RUMPPP J A s a reference it's easier to have a number. Even if it does not go in. MR. HOEXTER; Yes, my lord. Could this be S.H.W, my lord? S.H.W. 1. MR. HOEXTER; Yes, my lord. Now on what date was this report compiled? On the 29th October, And what is the date of the meeting to which the report relates? The previous day, the 2 8th October.

17 S.H.WHITE And looking on the second page, apart from your 1 Commanding Officer's signature, do your initials appear? Yes, they do. And are you able to say whether or not you compiled that report? This is W report. And from what did you compile it? Prom my short- 5 hand notes. And were those shorthand notes taken where? At this meeting on the Parade, Cape Tom, on the 28th October, My lords, I then ask leave for the witness to refresh.... BEKEER Js Where are the notes? MR. PISCHERi I wonder, my lord, while my learned friend is asking these questions, if we might have a look at the report? 15 RUMPFF J: Yes, certainly. MR. HOEXTER; I beg your lordships' pardon, I confused a recent question of my own to the witness with the evidence actually before Court. Mr.White, are the shorthand notes on which that report is based still in 20 existence? No; at that time I destroyed my notes. Within the last hour you have seen various reports of this nature which I think you will claim are your reports? They are all my reports. With reference to the ones you looked at, can 25 you tell us in each case what the fate of the original shorthand notes had been; are any of those notes available? No. What was your invariable practice at the time 30 in connection with these notes? When my report was com-

18 9437 S.H. WHITE piled I destroyed the notes, EEK3EB J: Eor what reason? They were atthat time of no further use to me. We subsequently received instructions not to destroy our notesbut to keep them. MR. HOEXTER: When you were compiling these reports from your shorthand notes, were the events of the meeting still cl ear to you - were you still able to remember what had been said at the meeting by looking at your shorthand notes? Yes, My lords, I respectfully ask that the witness be given lb ave to refresh his memory by reference to the report, Mr,White, I take it, without looking at any of these reports you cannot tell the Court exactly what was said at these meetings? Hot at this stage. MR. KEUTRIDCrE; I don't know if your lordships would permit us to ask a few questions on the nature of the report. RUMPFE J% Well, you're entitled to cross examine, you know, on the whole foundation. MR. KENTK3DGE: XXD. BY MR. KENTRIDGE; As your lordship pleases. Mr.White, that report of yours on the face of it, of course, is not a verbatim report? What I quoted is verbatim. Your report as a whole is not a verbatim report, a verbatim copy of your notes? No. You leave out gaps? Yes. And in some cases you summarise, you purport to summarise what the speakers have said? Yes, where I don't quote the speaker.

19 9440 S.H. WHITE For instance, on this document before you, in connection with one speaker, you summarise what he said and then you say 'he continued' and you have inverted commas and you put in some dots? Yes. Is that right? Yes. So the dots represent the fact that you've left something out which you didn't think it worthwhile to report? That is what I summarised. Something you didn't think it was worthwhile to eith er quote or summarise? Yes. Yes. In fact, Mr. White, when you gave evidence before the Bunting Commisa on;i should say the Select Committee of Enquiry into the case of Mr.Brian Bunting, M.P., on page 41 you were asked about these reports and this is what you said: Having dealt with the fact that you gave reports, it wasput to you "In other words you took what you considered to be the important points" and you said "Yes, at most of the meetings I took down as much as I could of the speeches". Is that true? In your original notes you did take down as much as you could? Yes. But then he quotes - - the cross examining Counsel quotes one of your report. He says "In one of your reports you say 'Nothing constructive was put forward'. Is that your opinion? (A) Yes." Is that your opinion? Yes. Sometimes if you thought there wasnothing of any importance you would 3e ave it out in your report? That is correct. Even though you had taken it down in your shorthand notes? Yes.

20 9439 S.H. TflH ITE And then cross examining Counsel said "In other words you made a precis of each speech", and you said "Yes". ("Q) Then what about the inverted commas", "The words in inverted commas are his actual words". Is that correct? Yes. And then you were asked this question: "Therefore I take it that you extracted the parts of the speeches which you thought your superiors would wait? (A) Yes." Is that correct? Yes. Then the cross examiner said: "Therefore one does not know what preceded these extracts and one does not Imow what came after? (A) That is so, the other parts of his speech may have been of no consequence." ( n Q) No consequence from your point of view? (A) Yes." So the point is, Mr. White, that although at the meeting you took down as much as you could in shorthand, when you came to make your report you used your judgment, you selected what you thought important and what you thought your superiors would want to know? Yes. BEKKER J: And what was it you thought at the time your superiors would want to know? My lord, anything connected with Communism, Native unrest... anything which might assist the Department in case of trouble... What sort of trouble? Strikes, riots, my lord. May I put it this way. What in your opinion at the time did you regard as unimportant from the point of view of your superior officers? My lord, the speaker might make reference to matters which did not affect the safety of the State. Well, let me put it this way, Mr. White. Assuming a speaker suggested violence; you would regard that as

21 9440 S.H. WHITE important? I would, my lord. If a speaker suggested non-violence, would you regard that as important? I would, to be very fair in my reports, my lord. I have always tried If anything was said.. I f m not quarreling about that; what I would like to know from you is, what matters did you regard as unimportant from the point of view of your superior officers? Some of the speakers, my lord - the speeches were not worth reporting. Some people carry on about religion, and attacks on the Dutch Reformed Church - that to me would 10 not seem to be important as far as the safety of the State isooncerned, my lord, MR. KENTRIDGE: Mr.White, of course, as you told us yesterday, sometimes a speaker may not be very direct in what he says. Eor instance, although a speaker 1 5 isn't explicit about it you might sometimes get the impression that he was advocating violence by implication? Yes. And sometimes by implication a speaker might imply non-violence and you might get that impression? Yes. And so it was really a question of your judg- 20 ment about what would be important to your superiors? Yes, I tried to give as much as his speech as posable. Would you have been interested in the question of class consciousness of the worker? Yes. You see, as far as I can see from here in one 2 5 of the speeches you simply summarise that; you say 'The first speaker said that every worker in South Africa should become class conscious'. You simply summarised there, it's not in inverted commas? No. Of course, what he had to say about it may

22 9440 S.H. WHITE not have struck you as being very important. Correct? Yes. It might strike other people as being important. At any rate, Mr.White, if we had had your verbatim notes, your original notes I should say, then we would have had a pretty complete record of everything the speakers had said? It would have been complete. Whereas now, to take this record for instance - this was a lunch hour meeting of two speakers; I suppose it took about an hour, did it, a lunch hour meeting? About forty to forty five minutes. And your notes on it cover I would say one and a quarter pages? Yes. Those speeches were interpreted. Your notes cover one and a quarter pages, so one could say that your report put down quite a small proportion of what was in your shorthand notes? I think it gave a fair summary of what was said, and the actual speeches made by the speakers. BEKKER. J; The quoted portions in your reports? Those were the actual words used by the speaker. But they may have represented but a fraction of what you had taken down verbatim? My lord, if they referred to any specific subject I would have given all the matter that they said in connection with that subject. MR. KEIITRIDGE: So what you really have here, Mr.White, to sum up, is a summary of some parts of the speeches, and extracts from other parts? Yes. Now, Mr.White, there is only one more question. You said that you found your signature on here at the end, is that right? Yes.

23 S442 S.H. WHITE But that is typed? Oh, that is my initials. S.H.W. typed, it's not your actual signature you recognise? Not my signature, my initials. Yes. But then how do you recognise this as your document? I know that I submitted these reports. But other detectives also submitted reports? They wouldn't use my initials. Oh, but Mr. White, sometimes you went to a meeting together with another detective, didn't you? Yes. For instance you sometimes went with Mr. Sauerman? Yes. In which case you would both take notes? Yes. And your reports would be compiled jointly from both your notes? I would use my own notes. And his? No. And would he use your notes? There may have been cases where reports were compiled, and that would be shown as having as portions having been taken by others that would be noted. But if Mr. Sauerman went to a meeting with you and he used he used the assistance of your notes to compile a report, that could have happened? No, I made up wown reports. Yes, but Mr.Sauerman might have made up a report taking advantage of what you had noted down? No. He made his own notes when he attended meetings. You see, these reports come from the Deputy Commissioner of the Cape Western Division; they don't come from you? I fall directly under the Deputy Commissioner. Yes, but it's the Deputy Commissioner who

24 9443 S.H. WHITE has the honour to inform the Commissioner that a meeting 1 was held. Correct? Yes And consequently, all we have here are the letters S.H.W. You have no actual recollection of any of these meetings? I know I typed those reports. Thank you, my lords. 5 MR. HOEXTER; MR. KENTRIDGEs No re-examination, my lords. My lords, we make the submission that this is really either tenor again, or if it is not, insofar as it is not, this report is not covered by the judgment given by your lordships this 10 morning. RUMPFF J: I { d like to hear Mr. Hoexter on this. MR. HOEXTER; My lord, I fully concede that as I understood the crux of the judgment on the first 15 point, the saving grace in the Ngcai situation was that although the report was the possibility of prejudice was reduced to a minimum because the original notes suffered from the same defects. My lords, I must concede a like position doesn't exist here, because as 20 the witness points out he has made use of summary;in answer to his lordships the witness conceded that even the portions quoted verbatim might represent a mere fraction of everything that was said by the speaker. There is a difference here, inthat 25 the original notes don't contain the whole speech... MR. HOEXTER; That distinguishes it, my lord,.. And in addition the difference is that here, if I may use the word, it is bona fide - he picks and chooses. 30

25 9444 S.H. WHITE MR. HOEXTER; Yes, my lord, that is so; that the l witness candidly admits. waste the time of the Court. My lord, I do not wish to I content myself with the bald admission that inasmuch as the reports contain verbatim quotations, to that extent the witness should be allowed to refresh his memory. I recognise that the matter 5 is a discretionary one, and for reasons that I need not dwell on I don't wish to dwell on the application. Well, we come to the conclusion that the discretion which we think we have should not be exercised in favour of the Crown in this particular case, and 10 on this evidence. MR. HOEXTER; MR. KENTRIDGE; As your lordship pleases. My lord, I don't know whether my learned friend has any other examination in chief. MR. HOEXTER; No, not on this. 1 5 MR. KENTRIDGE; My lords, when I stopped my cross examination yesterday to make the submission to your lordships I had indicated that if on certain aspects the judgment went against us, there were a few more questions we should like to ask. my lords. I wonder if I may do that now, 20 Yes.». MR. KENTRIDGE; My lord, we had understood "that in any event Mr e White might be recalled on other matters. 25 That was in the event of this evidence being held admissible. MR. KENTRIDGE; MR. HOEXTER; Oh, I see, my lord. My lord, as far as I can gather there is no further topic on which he will be required. 30

26 9440 S.H. WHITE XXD. BY MR. KENTRIDGE; Yes, proceed, Mr.Kentridge. Mr. White, you don't suggest, do you, that before the dissolution of the Communist Party the African National Congress did not hold any meetings on the Grand Parade at Cape Town? No. They did hold meetings. Yes. In fact you now remember that, that the A.N.C. did hold meetings? Yes. The point you were making was that they took over the Thursday lunch hour on the Parade? That is so. I suppose over the years,w hile the Communist Party, according to you, held these meetings an audience got into the habit of attending those meetings? Yes. So I suppose that any organisation which wanted to be sure of an audience might well have thought it desirable to hold Thursday lunch hour meetings? The Parade was open to any organisation. Mr.White, you did mention a number of names, for instance of Moses Kotane, who you said was a member of the Communist Party, and you identified him also as an executive member of the A.N.C? Yes * Is it not the case that Mr, Kotane was a member of the A.N.C. before 1950? Yes. It's not a case of his joining the A.N.C. only when the Communist Party was dissolved? No. As far as I know he was a member of the African National Congress as well. Yes? An Executive member. You see, you gave a number of names of other people who you said you knew both as Communist Party members and as A t N 0 C. members. $hat applies to them also.

27 9440 S.H. WHITE You were talking about the period when the Communist Party 1 was still in existence? Yes. I referred for instance to James laguma, Nkathle.. Yes; these people you mentioned like September, Laguma, Nkathle, Kotane, they were openly members of the A.N.C at the same time as they were openly members of the 5 Communist Party? My lord, I made a mistake. Laguma, James Laguma - I don't know whether he was a member ofthe A.N.C. I don't think he was. Nkathle was a member, But as far as the other names mentioned by you are concerned, is that correct? Reginald September was 10 not a member of the Congress, he was a member of the Communist Party Subsequently he was a member of the South African Coloured Peoples Organisation. The South African Coloured Peoples Organisation wasn't in existence before 1950, was it? No. 15 Mr.White, do you recall any persons whom you knew to be a member of the Communist Party who joined the A.N.C. openly after the dissolution of the Communist Party? That I can't say e Now, Mr.White, you mentioned that people like 20 Nkathlo were members of the Communist Party, or that James Laguma was a member of the Communist Party? Yes. Is that based on what they told you? No. What is it based on? They addressed meetings of the Communist Party, and identified themselves as 2 5 Communists., by referring to "We Communists". In other words, they made statements to the effect that they were Communists? That is so. And they addressed meetings under the auspices of the Communist Party? Yes. 50

28 9447 S.H. WHITE As far as all these people are concerned then 1 your knowledge that they were members of the Communist Party is hasedon what you heard from their mouths? That's right. I have no other direct evidence that they were members of the Communist Party. And it is based in every case on what they said, 5 or what you heard them say before the dissolution ofthe Communist Party in 1950? Yes, they identified themselves with the Communist Party, as Communists. Thank you, my lords. MR. HQEXTER% Just one question. The person Moses 10 Kotane to whom you referred, before 1950 did he address meetings of the Communist Party openly to your knowledge, or meetings of other organisations as well? If you can't remember, say so? My lords, I think that he also addressed meetings of the African National Congress. 1 5 No further questions, my lords. I ask that the witness at this stage be excused, my lords, MR. KENTRUDGE % There is no objection, my lords. Yes, thank you Mr.White, you are 20 excused. MR. HQEXTER; My lords, my learned friend Mr. Trengove will deal with the next portion of the evidence. 30

29 944S P. MASOKANYE PHILLIP MAS QKANXE S.Ss XI). BY MR. TRENGOVB; My lords, the witness was dealing with two documents G.382 and G.849, referring to an A.N.C. Conference at Orlando during the period 8th to 10th October 1955* Now, Masokanye, would you look at the document G.849? I have it. Those are notes which you made at the Conference at Orlando, the same conference to which document G.832 refers, is that correct? Yes. And it also contains the names of people that you observed attending that conference? Yes. When did you make the notes? On the 9th October, At this conference? Yes. And can you say without referring to your notes exactly who was there? No, I would not be able to remember them all. I ask that the witness be allowed to refresh his memory from his notes, my lords. Yes. MR. TRSNGOVEs Will you have a look at your notes, Mosakanye, and could you tell me if on the 9th Octob er, 1955, at this conference at Orlando, you observed the following people present. Have you got the names Obid Motsali there? Yes. Have you got the name Lawrence Nkosi? Yes. Have you got the name Lilian Ngoyi? Yes. Have you got the name of Mashamaite? Yes. And is the following name Samuel Masemole there? Yes. Have you got the name Alfred Hutchinson? Yes.

30 9449 P. MASOKANYE Henry Tshabalala? Yes. Then, did you make a note of what is your next note there? -Further names. Which are they? Richard Moseko, And then what does your note say? Mrs. Molife then Shongwane; My lords, I don't want unnecessary names; can I just refer him to his notes? Yes. MR. TRENGQVE i Among the names you are busy referring to at the moment have you got the name E.Moretsele? Yes. Going down your list have you got the name of Nimrod Seyake? Yes. And M.W. Shope? Yes. Ida Mtwane? Yes. H.G. Makgothe? Yes. L. Masina? Yes. Jerry Kumalo? Yes, Peter Ntithe?-- Yes. L. Nkosi? Yes. And Patrick Malawa? Yes, Maloao. Now turn to the next page, have you got a note there of some other names? Yes. What names are those? Names of persons who were there. At the top of that list, before starting with the names, did you make any note there? Yes, I made a note there, "Executive Committee". What does that note mean, Executive Committee"

31 9450 P. MOSAKANYE? The executive committee of this conference that was held there. Among those names have you got the following names: Lilian Ngoyi? Yes. Bob Mgwendo? Yes. Lawrence Nkosi? Yes. B. Schlapane? Yes. 0. Motsabe? Yes. New, Masokanye, you gave the names of the following people as having attended this meeting, and they are people whom you have not identified yet? Some of them I have not identified. L. Masina, do you know him? Yes. Would you be able to identify him if you see him in Court? Yes. R. F.esha? Yes, I know him. L. Ngoyi? Yes, also L. Nog.oyi. J. Ndkadeneng? Yes, Nkademeng also. And Patrick Maloao? Yes, I know him too. Now, if you see these persons in Court, would you step down from the witness box and identify them please? (Witness identifies Leslie Masina, R. Resha, L. Ngoyi, J. Nkademeng, Patrick Maloao). Now there are some other names that you've mentioned and I want you to tell the Court whether or not you can say these accused were or were not accused in the Preparatory Examination in this case? Yes. J. Kumalo, the man you identified? He was an accused. Do you know what his name is? Jerry Kumalo. B. Shlapane? He was an accused.

32 9451 P. MASOKANYE 0. Matsabe? Yea, he was also an accused. M W. Shope? He v,as also an accused, J, Mkotlo? I don't remember him; I'm not sure ebout him. T. Makewane? He was there. A. Hutchinson? He was there. H. Tshabalala? Yes, he was there. N. Sejake? Nimrod Sejake I cannot remember, whether he was or not 0 That concludes the witness! evidence on this conference, my lords. The next meeting is a meeting of the 24th June, 1956, my lords. It is a meeting in respect of which D/fegt.Schoeman gave evidence, Exhibits G.90l and G.902. Now, Masokanye., I hand you a document ; will you look at it and see if you can identify this document? Yes, I know it. My lords, this document does not bear a number at the moment and I would suggest, if it has to have a number, that it be G,902(b). Do you know that document? Yes, I know it, What is it? It was a conference that was held at Kliptown on the 24th June, And did you make notes at that conferehce? Yes, I did. And are these the notes that you made at the conference? Yes. And do the notes set forth who the speakers at the conference were? Yes. And do they also set forth persons who you observed attending the conference? Yes. Now, would you be able to tell the Court with-

33 9452 P. MASOKA.NYE out referring to your notes, exactly who was there, and 1 who the speakers were, in their correct order? No, I could not without looking at ray notes. My lords, I ask that the witness be allowed to refresh his memory from Ms notes, RUMPFE J; Yes. 5 MR. TRENGOVEs Have a look at your notes, and can you tell from your notes who the chairman at this conference was? The chairman was Leslie Masina. And was he also the first speaker? Yes. And who acted as interpreter for him? S. 10 Malope. Now was Leslie Masina the person you identified earlier?- Yes. And do you know S. Malope? Yes 0 And do you know whether or not he was an accused 15 at the Preparatory Examination? Yes. The next speaker, who was that; look at page 3 of your notes? P. Mathole. And is that the speaker that you have already identified? Yes. 20 Accused 30.8$ look at page 5 of your notes; who was the next speaker? Leon Levy. Do you know Leon Levy? Yes, I know him. And would you be able to identify him if you see him in Court? Yes. 25 Then turn to page 9 of your notes; after Leon Levy who was the next speaker? Lilian Ngoyi. And who acted as interpreter? Leslie Masina, And is this Lilian Ngoyi the person you have identified? Yes. 50

34 9453 P.MSOKMYE Then turn to page 16 of your notes; after Lilian 1 Ngoyi, next speaker you have noted there, who is it? E.P, Moretsele. And is that the E»P, Moretsele you have identified? Yes. Then have you got a note at page 20? Yes, Gert 5 Sibande. Page 20, Masokanye - have you got a note there»2.15 open'? Yes. Afternoon session? Yes. Who was the chairman there? Leslie Masina. io And who was the first speaker? Rev,Thompson, Do you know the Rev. Thompson? Yes, I do. Do you know whether or not he was an accused at the Preparatory Examination? I don't remember. What language did he speak in? He s poke ih 15 English, Who interpreted Ms speech? Sampi Malupe, And after the Rev e Thompson, at page 20, was the next speaker Helen Joseph? Yes. Do you know a person by the name of Helen Joseph 20? I do. And have you a note behind her name? Yes, She spoke in English, is that correct? Yes, And who interpreted her speech? S, Malupe, Then after that the next speaker? Gert Sabanda, 25 Do you know Gert Sibanda? I do know him; I have already pointed him out. And his speech was interpreted by? Tshabalala. The next speaker, at page 2 3 of your notes? Stanlen Lollen. 30

35 9449 P. MASOKANYE And after Stanley Lollen? Dr.H. Moosa. Do you know Dr. Moosa? Yes. Do you know Stanley Lollen? Yes, I do. Would you be able to identify him? BEKEER J: Who was the speaker after Lollen? MR. TRENG-OVE; Dr. H. Moosa, my lord. Do you know Stanley Lollen? I do. And would you be able to identify her? I would. Do you know Dr. H. Moosa, whether or not he was an accused person at the Prepara tory Examination? I do not remember. According to your notes who interpreted Dr. Moosa's speech? Sampe Malupe. Then after Dr.Moosa at the back of your page 23, who spoke there? An unknown native male from Eastern Cape. And then at page 24 of your notes, after that have you got a note "A Resolution"? Yes, Resolution by Doctor. And you haven't got a name there? No, just by doctor; I have no name there. You didn't get the name of this doctor? No. Who acted as interpreter? Tshabalala acted as inteppreter. That concludes your notes of people who spoke? Yes, correct. Now you also made a note of the people you observed attending this meeting, is that correct? Yes. And would you look at your notes and tell the Court if you've got the following names amongst the people

36 9455 P. MASOKANYB who attended: H.G. Makgothi? Yes. Are your speakers numbered? Yes, they are numbered. Will you look at No.19, is that Ida Mtwane? Yes. Look at No.2, Pahrid Adams? Yes. Do you know a perssn "by that name? Yes. If you see him in Court will you be able to identify him? I haven't seen him for a longtime. No. 6? B. Shlapane. No.12? Patrick Malaoa. Is that the man you have already identified? Yes. Then No.14, Nimrod S9Jake? Yes. Then No.30?-- P. Mathole, yes. Is that the P. Mathole you've already identified? Yes, Philemon Mathole. No.40, M.W. Shope? - Yes. No.59, Aaron Mahlangu? Yes. No. 58, Mary Ranta? Yes, Mo. 60, Peter Nthithe? Yes. No. 62? Simom TyikL? Yes. Do you know Simon TyikL? Yes I do. Would you be able to identify him if you see bim in Court? Yes. Now you mentioned certain people that you'd be able to identify if you see them in Court, Masokanye? Yes. Would you step down from the witness box and identify these persons if you can? Yes. Start with Leon Levy? (Witness poirtts to No.4 accused). The next is Helen Joseph? (identifies No.2)

37 9456 P. MA.SQKAHYE The next is S. Lollen? (Identifies No.5) Then S. TyikL? (Identifies No. 21) Now you had previously in your evidence this morning mentioned the names of certain persons; you have in respect of this meeting metioned the persons with similar names who were present at thismeeting. Could you tell the Court if these are the same people that you have already referred to this mornings H.G. Makgothe? Yes. Ida Mtwane? Yes. B. Shlapane? Yes. N. Sejake? Yes. M.W. Shope? Yes. A. Mahlangu? Yes. M. Ranta? Yes. P. Nthithe?-- Yes I'm sorry, you haven't referred to M. Ranta this morning. Bo you know whether or not she was an accused at the Preparatory Examination? I have mentioned her names but she was not an accused at the Preparatory Examination. But I have mentioned her as a person I saw at the me eting. And P. Nthithe? Yes, he was there. My lords, that concludes the evidence on this meeting. And, my lords, that concludes the evidence in chief of this witness. MR. FISCHER; No questions, my lord.

38 9457 G-LADWELL NGCI (CONTP.UNDER FORMER OATH): MR.TRENGOVE; Your lordships, in terms of your lordships' ruling thi3 witness is still to give evidence on certain meetings. My learned friend, Mr. van Niekerk, was leading the evidence of this witness, as your lordships will remember; I don't think he anticipated the evidence of Masonkanye to conclude as soon as it did; he is on his way to Court, my lords. (AFTER A FEW MINUTES ) MR. TRENGOVE; My lords, some administrative problem in leading Ngcai's evidence immediately has arisen, and in order to save time my learned friend Mr. v.d. Walt can now proceed with the witnesses for the Eastern Province. What is your reference to administrattive problems, Mr. Trengove? MR. TRENGOVE; My lord, it is difficult to go on with Ngcai immediately. Why? MR. TRENGOVE; My lord, in view of your lordships' ruling this morhing my learned friend Mr. van Niekerk is studying the judgment in order to be quite sure as to what evidence he should lead on other meetings, your lordships' ruling being an ad hoc ruling in respect of a particular document. I'm not quite sure if ray learned friend is in a positicn to go on, but in any event.... RUIPFF J; He has completed his studies. MR. TRENGOVE; Yes, my lord, it looks as if he has. In any event, my lord, even if he isn't, my learned friend Mr. v.d. Walt - - the Defence have been advised, we are proceeding with other witnesses. RUMPFF J: Yes, that's alright.

39 9458 B.S. THOMAS MR. TRENGOVE; May it please your lordships, may this witness then stand down? Yes, as his evidence may be affected by consideration of the judgment, he may stand down. BACHARIUS STEFANUS THOMAS S.S; ^ ^ j XX). BY MR.v.d. WALT; You are a detective constable in the S.A.P. stationed at Port Elizabeth? I am. Were you attached to the Security Branch?^-Iwas During what period? Between the years 1942 and 1 944, my lords. And during that period did you attend m etings? I did. For what years? I'm sorry, 1952 to 1954, my lord. MR. v.d. WALT; During that period did you attend ms etings? I did 0 And who sponsofed the meetings that you attended? The African National Congress. And what languages do you speak? Afrikaans, English and Xosa. And at the meetings you attended, what languages were used by the speakers? English, Xosa and Afrikaans. And when a speaker spoke in Xosa what did you do? I translated it into English or Afrikaans. And who recorded the Afrikaans and English? I did. Now, I hand you three documents, G.538, G.540 and G.541.

40 9459 B.S. THOMA-S How many meetings has this witness got? MR.v.a.WALT: Only three, my lord. Do you recognise thedocuments? I do, these are notes taken "by me at meetings. And do your notes correctly reflect what took place at the meetings? Yes. Do you have any independent recollection of what took place at these meetings? No. And if you refer to your notes will you be able to refresh your memory and tell the Court what took place? I will. May the witness refresh his memory from his notes, my lords? Yes. MR.v.d.WALT; Now, do you know the following persons: S. Nkalipi? Yes. And B. Ndimba? Yes. Can you identify them? Yes, I can. May the witness stepdown from the witness box and do so, my lords? Yes. MR.v.d.WALT: Will you firstly identify S. Nkalepi? I will, (identifies accused No. 23). And B. Ndimba? (identifies accused No.?). Do you know the following, A. Nogai? Yes. Can you say whether he was an accused at the Preparatory Examination? He was. Do you know J. Jack (?)? Yes. Was he an accused at the Preparatory Examinati? He w as.

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