I need hardly say, my lords, that this particular witness, it is clear, is a nan whom the accused not merely

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1 I need hardly say, my lords, that this particular witness, it is clear, is a nan whom the accused not merely respect but perhaps revere, and your lordship's question might obviously be calculated to cause them a certain amount of My lord, disquiet«, if I may now turn to another passage at page 13234; that ia in Vol. 62, my lords. At that stage, my lords, Mr. Luthuli was being cross examined by my learned friend Mr. Trengove about an article in the journal 'Liberation' written by someone called Ruth First in which she was engaging in controversy with a member of the liberal Party, and Mr. Luthuli had been asked about his understanding of that article. There had been some long cross examination on Mrs. First's article and the witness had been giving his views on it. Then your lordship in a peeiage on page 13234, at line 14, said: ("Q I don't understand your evidence at all here. The first article referred to by the Crown apparehtly was an article by Mandela, and he deals there with parties in the Union and he deals with the Liberal Party, and he criticises the Liberal Party for taking a middle course'} and your lordship goes on: your lordship analyses the article of Mandela and then analyses the article of Mr. Price, and then on the next page, page 13235, your lordship deals with the reply by Ruth First, and your lordship places a particular interpretation on this article, which may or may not in any event prove to be the correct one, my lord, but which is a matter of controversy between the Crown and the Defence, and

2 16682 your lordship analyses the article; your lordship says: line 7 - that she criticises Prioe for being afraid of violence. That is what one's first impression is when ore listens to the passage. The n your lordship goes on: "She criticises Price for advocating peaceful means". Now that, I may say, my lords, is by no means the interpretation which we put on the article at all, and your lordship goes on: ( U Q) And she suggests that you can't achieve anything without violence; that is what she suggests". The witness does not agree and says "Well, ny lords, I think I had better leave that with the Court." Your lordship agrees and says: "Yes, that is what I say is the impression I get from her answer" and your lordship goes on: "She ridicules peaceful means; she is sarcastic about it". Then the witness asks a question and your lordship goes on: "Well, you have heard the passage, I'm just giving you my impression, the prima facie impression listen ing to this view is that she suggests that a struggle without the possibility of a clash is Inefficient; it will not work". Now, my lords, as I have said, your lordship accepts an interpretation which is one of the matters in controversy. But, my lord, at the top of the next page - page 13236, your lordship takes up a matter which had been discussed with the Crown and that is to say wh ether the witness had ever read this article at all,a*i& your lordship says: "I just want to ask you this: did you read these articles at the time when they were published?"

3 16683 and the witness says "Ho, ray lord, I don't really recall; I must say that one reads an article, but I'm not a general reader; that I must say'. Now this reply, my lord, was not accepted "by your lordship because your lordship says: "But didn't this present an interesting difference between a man you knew wellmandela, and Price, and again between Ruth First" and the witness still says "I must say, my lord, I am not» a general reader of the journal", but your lordship still doesn't accept his denial; your lordship says^ "But this is a magazine called 'Liberation'", suggesting it might appear to the witness or the accused, with respect, that surely he must have resd a magazine called 'Liberation'. Then your lordship said: "Did you get it regularly" and the witness says "Not regularly, I buy it". That, again, my lord, your lordship did not accept, and your lordship went on: "Were you not a subscriber to it?". The witness says "No, I'm not a subscriber but I get it fairly regularly, when I am in Town I buy it." But this still, my lord, was not accepted by your lordship; your lordship pressed the witness, "Was it not sent to you?". Well, by this time the witness says "I cannot answer no or yes, because one gets so many of these articles". "That I can't remember, but I do get it; I do generally get it, but what I do say is this, I would not say that I'm a student reader of these journals", And then, my lord, there comes a question which within the context might well appear to the witness and the accused, expresses skepticism, if nob disbelief

4 Because your lordship sayss "At this time you were President General of the A.N.C", and the witness say "That is correct", And your lordship asks; "Were you doing any other work at the time, or was this your full time occupation". Mr. Luthuli replied, "No. Congress is part 5 time; that is, of course, you have got to do your own personal work for a living". Then your lordship asked: "What work did you do at that time" and the witness said: He gave his reply, Now, my lords, we do respectfully submit that with regard to that passage, the suggestion being put to 10 Mr..Luthuli is that notwithstanding his denial, surely he must have read those articles, and my lords, it might well with respect have suggested to him and to the accused that his evidence even on this relatively small and simple 15 point was being regarded by your lordship with some skepticism. Now, my lord, in this same volume, at page 362, there is discussion on another point. At that stage Mr. luthuli was being cross examined on the Freedom Charter and the Crown had asked him and had spent some 20 little time in asking him whether he knew who drafted the Freedom Charter. He said that he did not know. And he said that he did not even enquire. Now, my lords, my learned friend, the cross examining Counsel, was under no obligation to accept that, he was entitled to 25 investigate it, to test it if he felt so inclined, but the submission we make here, my lords, with great respect, is that your lordship by taking up the questioning at that stage, was unfortunately giving the impression to the witness and the accused that your lordship was 30

5 16685 taking up what was strictly speaking the Crown's line of cross examination. Your lordship was, with respect, putting to the witness the sort of challenge of his evidence that it was no doubt quite correct for my learned friend to put. Your lordship said at the bottom of that pages "Were you a member of the National Action Council? I was my lord," ("Q) How is it that you do not know who drew up the terms of the Freedom Charter? (A) Well, my lords, I must confess to say this, it might be an excuse but it is just a fact." Your lordship says "What do you mean by an excuse; don't you want to name the person", and the witness says "No, I can't name the person". Your lordship goes on: ("Q) Were you present when the terms were discussed, were you given the completed document? (A) No, my lord" ("Q) I don't follow then; either you were present when t the terms were discussed, or you were not present, and afterwards you were given this document by the other members of the National Action Council". And the questioning goes on, on line 25: ("Q) Didn't you see the draft? No" ("Q) Why didn't they send it to you as Chief of the National African Congress", and then your lotfship concludes, and the witness is taken up^ain by the cross examiner. My lord, if I may now go to Vol. 64 which concerns the same witness. There is a passage at page to which I should like to draw your lordship's

6 li.686. attention. The question under discussion there was the resistance in the Western Areas and the fact that armed police with rifles were sent into the Western Areas, and your lordship at line 14 asks the witness whether he remembers whether the police were armed with rifles, and your lordship goes on, "Now, having regard to that particular day and when the Government anticipated removal, and the fact that the people were faced with, let us assume, 3,000 armed police, what resistance did you want them to commit in order not to have a defeat for the A.N.C", and the witness gives an answer, which may not be clear, and your lordship went on: "No, my question is this: having.regard to that force of armed police, what resistance would you have expected in order to have made the occasion not a defeat for the African National Congress?" and the witness replies that while he cannot say specifically he would have desired people to show a reluctance to go, a mere reluctance to go. Your lordship on the following page takes him up on this and asks "What form should the reluctance take; I mean we are now using resistance and reluctance. You say they should be reluctant to go. extent should they have shown reluctance, Now to what in what way should they have shown reluctance", and the answers are given, and the questions go on: Until finally, my lords, at line 25 your lordship says "You see, the difficulty that one is faced with is this: to get a compromise between the two statements. One, you wanted no incidence whatsoever, violent incidence", and the

7 16687 witness says "That is correct". ("Q) You didn't want that at all? (A) That is correct". ("Q) Nevertheless on the other hand notwithstanding the comparatively strong force of police which was "brought into to help with the removal, there is the point view that there was not strong enough resistance. of Now I am trying to find out what should one expect then?" My lord, with respectful submission, we draw attention to the fact that your lordship might well be taken to have been joining issue with the witness on whether the people in the Western Areas were expected to show a mere reluctance to go, or something else. RUMPFF J; These questions, did they also arise out of the report? MR. KENTRIDGE; Yes, indirectly, my lord; my lord, I don't for a moment suggest that these questions are not relevant to the case. RUMPFF J; No.. I see. MR. KENTRIHrB; NOW, my lord, in this same volume at page 636 a similar question is come back to -in connection with the Western Areas. Your lordship will see on the previous page, page 635, that the witness was cross examined about a report, LLM.81, in which there was a reference apparently to the possibility of having resorted to more positive and direct action. The witness says he interpreted it as meaning more pressure, and the witness, I T m still at the bottom of page 635, my lord, said - rather he was asked, "You canh think of any other form of action which would be more direct and positive than the nature of the action taken in the

8 16688 Western Areas", and the witness is about to give an illustration - he mentions that he doesn't know whether within the Emergency Regulations he should give an example, but on the next page it is agreed with the cross examiner that he should give a theoretical example, and the example which he gives is that possibly the African National Congress might tell people that they shouldn't pay their taxes. Then your lordship questions thewitness and asks: "That would be a type of mass Defiance Campaign, wouldn't it, not to pay Taxes" and the witness says 'Yes 1. And he says "All I'm trying to say, my lord, - I can't in Court here say this form or that form - and that I would exhaust the forms that might be used." Then your lordship puts a paragraph to him stage by stage. "By reading the passage we must keep clear in our minds the objective of the campaign. Simply stated this is to arouse the people and to organise them in a campaign of resistance to apartheid" "Now the first campaign referred to is not the campaign in regard to the Western Areas apparently, it is the Resist Apartheid campaign", and the answer is 'Yes of which the Western Areas was a part'. Then your lordship goes on, "The basis of such resistance is to take the form of non-collaboration of a quantity and quality which must compel the Government to use all its resources to impose its will at any and every stage". Your lordships asks, "Noncollaboration 0,1 the quantity and quality, would that include action similar to what took place at Meadowlands - in other words, an unwillingness to go, and

9 16689* industrial action? (A) Yes, my lord*" ("Q) In your view, could that include that? (A) Yes." The witness goes on: think my immediate reaction would he to include that, my lord.' And then he again repeats that and your lordship goes on with the quotation, "Non collaboration, both from the pass and the individual, designed ultimately to strain the resources of the authorities and create a situation more favourable to the Movement". Your lordship says ' "Now this might mean apparently that all your non-collaboration must be of such a nature as to strain the resources of the authorii ties to create a situation". Then it goes on: ''A situation more favourable to the Movement, and for more direct and positive action". Then your lordship puts an assumption to the witness. Your lordship will recall that the witness had given as an example of more direct and positive action as failure to pay taxes, and your lordship at the bottom of page put this question, asking the witness to make this assumption: ("Q) Now, assume that you have a refusal to move, or a refusal to pay taxes, and you have a stay at home strike; assume you have that, oould it then be said that there is a situation more favourable for direct aotion; if so, what was contemplated", and your lordship goes ont "In other words, if I may repeat it, if you have a situation where you are straining the resources of the authorities, the police and everybody, through a variety of methods, then apparently this paragraph says a situation has arisen for more direct and positive action. Now what could that mean? You s ee, I'm putting to you

10 16690 a certain way of reading it. You employ certain methods to have a condition in which all the resources of the State are strained, and then it says when that situation has arisen it may be a situation favourable for direct and positive action". The witness says "I follow, my lord". Your lordship goes on: ("Q) You see, the inference might be here, and it might be argued that if this is to be read in this way that I have done, then it means only one thing. That may be the argument, that if you have the authorities of thd State in a position of extreme strain, then the only direct and positive action may be open revolution". The witness says "I follow, my lord, I wonder if my lordship would allow me to exercise my mind a bit more to it." Your lordship says: "I would very much like you to consider this". Now, my lord, one can understand that this was doubtless an important and interesting point in the evidence, but if your lordship will recall the line of the Crown's cross examination, your lordship will perhaps with respect realise that the accused might possibly have got the impression there that your lordship was with respect taking up the C rown's line of cross examination. Your lordship will note, as your lordship finishes the cross examining Counsel continues on that line. My lords, in this same volume, at page 686, there is another passage, that is 13686, and I shall first ask your lordships to look at the last question on the previous page. The cross examiner has asked

11 16691 and put it that certain Congress movement leaders had been to Russia, and satellite countries and seen conditions there, and they met leaders in those countries and had discussions, and came back and reported, and it's then put: ( H Q) Your organisation had an intimate knowledge of the political theories and practices of the East and Soviet Russia", and the witness says:! 0h, no, that I deny, I categorically deny that." And he goes on to give his explanation, ending up "Quite definitely - at any rate speaking for myself, I think many African leaders, their 10 knowledge of the East i s very vague, so your statement is coetincorrect". But your lordship in three questions which follow, then we submit, proceeds to use the witness' answer that the Africans have very little knowledge of the East, to suggest that this would make 15 the members of the African National Congress more susceptible to Communist propaganda, and would make it easier for leaders to convey Communist propaganda to the rank and file without it is Communism, the rank and file knowing that 20 My lords, your lordship I submit will realise that as far as the accused are concerned, and bearing in mind the role which Communism plays in the Crown's case in these proceedings, the accused would feel, my 25 lord, that your lordship was suggesting, taking the opportunity by reason of the witness' answer, to suggest that this very ignorance of Russia and the Epst provided a ground for believing it probable that leaders could convey Communist propaganda easily and without detection.

12 16692 My lord, I suppose it is a truism that if people's knowledge is very small they might, as your lordship put it, "be more susceptible to propaganda, but your lordship here, with respect, makes the clear suggestion, not merely that if people are ignorant they might be susceptibe to ordinary propaganda, but because they are ignorant of Communism and the East, their leaders might find it easy to convey Communist propaganda to them, and I respectfully ask your lordship to consider whether that might not convey the impression to the accused that your lordship was to some extent accepting that part of the Crown's evidence. Now, my lord, further on in the same volume, starting at page there is a cross examination about the African National Congress' view or understanding of the word 'peace'. It had arisen, my lord, out of the cross examination on a resolution of the African National Congress Youth league; a Youth League resolution about Stalin being the architect of peace had been put to the witness and his lordship, Mr. Justice Bekker had asked the witness to explain whether he agreed with that resolution or not, and if not, which part he disagreed with, and the witness had explained it. He had been given the opportunity to express his opinion of that, and he had stated that his view on that document had been cleared up and elucidated. Then your lordship in an examination of the witness, which continued from page 724 to page 730, had taken up the general question of the attitude of the African National Congress towards peace and in particular on the approval by the African National Congress

13 16693* of Russia's attitude towards peace. Now, ray lord, if one reads this questioning of your lordship from the beginning to the end, the impression which we submit that it gives is that the examination was designed at the outset to establish that when the African National Congress speaks of being in favour of peace it foesn't mean peace as the ordinary man might understand it, but that it implies some particular special political content, the nature of which beconoa clear as the examination proceeds. Now, my lords, your lordship started off on line 15 on page by saying: U I just want to ask you this, Mr. luthuli, about the so called peace. You say that the African National Congress was favourably inclined towards Russia insofar as it sought peace, as bhe purported to seek peace? (A) That is correct",,,," Then your lordship goes on: ("Q) NOW what was the peace of Soviet Russia as the African National Congress understood it; what is meant by peace? (A) Well, my lords, I cannot be specific but I think as you know our pronouncements were in favour of peace. Your lordship says: "I knew that they may have been in favour of peace, but what was the peace that Soviet Russia aimed at? What was peace? What do you understand by peace as far as the African National Congress is concerned 11, Your lordship here, if I may make the point with respect, assumes that the word peace probably has some particular meaning, but the witness replies, "I think, my lord, we would understand it as a State where

14 16694 there is co-existence, each country living peacefully and working out its own destiny without wanting to attack or making attempts to attack other countries." That is his was, how did the African National Congress understand the peace that Soviet Russia wanted to propagate? (A) I don r t know that I follow, my lord*" ( U Q) Wellf you have indicated that insofar as Soviet Russia claims itself to be in favour of peace, the A.N.C. gnawer, but your lordship takes it up and says: "My question supported that point of view? (A) Yes, my lord," ( M Q) NOW I want to know from you what is the meaning of the peace that Russia claims to be in favour of, in the minds of the African National Congress; what did the African National Congress understand by the word peace? (A) I'm afraid.,." ("Q) I'll tell you why I ask you.,.." and the witness then explains, 'I may not be able to satisfy you because I may not be clear, because I thought that when I indicated that she seemed to stand for peace in her pronoucements, my lord, again I must say that one's motives i one cannot be able to tell, even in the situation that is discussed - and there she didn't take the initiative of forming war pacts and so on, and that seems to indicate that your lordship asks, is it just that Russia didn't appear to be desirous of engaging in battle.' Your lordship goes on: ("Q) Or is it something more? (A) No, my lord, I think we were thinking more in terms of a world war." ("Q) Why I ask you this is because if my memory serves me correctly, there have been references to certain con-

15 ditions for instance that there can be no peace without liberation? (A) Yes, that is correct, my lord." ("Q) Now that is why I am asking you; what is, or was the idea of the African National Congress in regard to the peace which the Soviet Russia claimed it wanted? (A) It was, in this context, it would be more peace in the sense of not engaging or provoking war, like world war."... and he continues to answer. ("Q) Would the same apply to Imperialism? As long as there would be Imperialism in the world there would be tension? My lord, as we see it honestly we think so," "because we have suffered so much under Imperialism." ("Q) Now if that is so, and that is really what I want to enquire into - into the meaning of peace - is it correct to say that paace as the African National Congress sees it is not a mere state of non-war, not the mere state of parties not fighting; it is the state in which a certain political change has taken place over the world", and the witness says: "My lord, I think it would cover that. But I think that generally, in regard to the earlier ques tions your lordship asked? I think it is more thinking of actual war when we speak of peace, although your exten sion of it would be quite valid, but I would say that normally when we say that Russia stands for peace and so on one would be thinking more really of actual armed clashes". ("Q) Or the lack of the absence of armed conflict? Yes. Now, my lord, with respect, the witness 1 view has been made absolutely clear; it has been fully elucidated. The witness has been moved to the position

16 where he has conceded that part of the approval of the Soviet peace - - that part of the view of peace is that if there is no oppression there is more likelihood of peace. The witness has made his attitude perfectly clear Your lordship goes on: ("Q) NOW I take it that, is it correct to say that the African National Congress did not worry about other countries who expressed themselves in favour of peace". Your lordship puts a certain assumption to the witness and then your lordship explains why :«("Q) I'll tell you why I am asking you that question, because it knew or it thought that the peace suggested by Soviet Russia was a peace based on the absence of oppression. In other words, if a Western country without any Colonial ties or interests, let us say Denmark - if Denmark had expressed itself asa peace loving nation and in favour of peace, that would not really have been of interest to the African National Congress, because that type of peace was an obvious type of peace - the absence of war - - but when Soviet Russia..." and the witness says: 'Just repeat about Denmark, my lord, I don't follow ("Q) I say if Denmark had expressed itself in favour of peace, the African National Congress would not have been concerned with that very much". Your lordship with respect there made an assertion; it may or may not have been correct, my lord, but your lordship makes the assertion, and the witness says, "We would have been glad, my lord". But your lordship does not seem to accept that, with respect, and says: "Yes, you would have been glad because it would be a people expressing a desire for

17 ( t peace, but now, the African National Congress did not go out of its way to quote Denmark as a country in favour of peace, or any other country, except Russia", and the witness concedes, the concession is made that that would be correct. 5 My lord, your lordship then says to the witness: "Now I'm trying to find the reason. Is it because whereas Denmark might have suggested only peace in the sense that there should be no conflict, when Russia expresses itself in favour of peace the Soviet means peace without oppression, as it sees it." The witness says: 10 'My lord, I don't know whether the thinking had gone as far as that, but it would cover it, I think that would add naturally to an appreciation of Russia's plan; I think so." ("Q) Well, did the A.N.C. agree with Russia that there 15 could be no peace without oppression; as long as there exists oppression there can't be peace? (A) Yes, I think so, my lord, I agree with it." Now, my lord, the witness had previously clearly stated his view, that as long as oppression exists 20 there can't be peace, and he had said that that had been their experience. The way your lordship puts it is 'Did the A.N.C. agree with Russia, that there could be no peace without oppression', which might imply, my lord, that if that was the witness' view it was held by way 25 of agreement with Russia, And then your lordship went on: ( U Q) Does the African National Congress agree with that," and the witness says "I say so, I can't see that where there is oppression in the world one can truly say there 30

18 v. * is peace". "So that", your lordship continues, "Unless and until the world picture is such that there is no oppression in any country in the world, true peace cannot exist" and the witness accepts your lordship's attitude and admits that true peace cannot exist with oppression. 5 Your lordship said: "I'm trying to find the meaning", and the witness says "I would underline it really, there can be no true peace " and your lordship says "Is that the peace that Soviet Russia sees" and the witness agrees ; "On the surface, my lord, as I have already said, 10 it would appear so". So your lordship has established that that view of Soviet Russia is accepted, and goes on to finalise it, ("Q) Well, is the view then of the African National Congress, or was the view that until and unless there is no 1 oppression in any country of the world, true peace cannot exist? (A) My lord, I don't know that we discussed it Your lordship on page 729 continues: 20 ("Q) Would the result be of that attitude that one would require the political change throughout the world to remove oppression before true peace could exist? (A) I 25 so fully, but I would go so far as that, speaking for myself." think one could say, my lord, quite fairly and rightly that we should move in the direction of removing oppression; there should be signs of oppression being removed to give hope to the oppressed people; so long as there are not signs of removing oppression, my lords, I just can't see how you really can speak in terms of true peaoe." 50

19 Now, ray lord, the witness had stated his view, he stated the view of the African National Congress; it's been compared with the view of Soviet Russia, the meaning of the word peace has been elucidated. Your lordship then, with respect, introduced a new topic. Your lordship then said; ("Q) 7/ould you agree with the Communist point of view, that if every country in this world became a Communist country, there would be true peace" Not, my lord, that is put by your lordship as being the Communist point of view; it may be, and there has been evidence on it which has not necessarily been accepted, but your lordship puts that to the witness who says: 'I wouldn't go so far as that, my lord, because in the first place.... " Now, my lord, the witness has previously on many occasions said he wasn't a student of Communism. Your lordship says; - ( U Q) I'm not suggesting that you should, I'm merely asking you whether you agree with the Communist point of view, that until every country in the world is Communist there cannot be true peace", and he says 'No, my lords, I cannot agree with that because of my ignorance of what Communism really stands for; I've already indicated in this Court that there are some aspects, from what I know of Communism, which I don't like." And he explains himself there. But on the next page your lordship says: ( U Q) Yes, but what was the view of the African National Congress - - did it consider that if every country in the world became a Socialist country in the Leftist sense, a Peoples Democracy, that there would be world

20 peace? (A) Definitely the Afrian National Congress had no view as far as that is concerned", and then your lordship finishes up by saying: - (,! Q) Why I am asking you these questions is inter alia "because of the use of the word, the particular word in this resolution which was quoted to you - I think in one of the phrases there is a reference to peace that dominates the world; that is to say in the resolution of the African National Congress Youth League". Now, my lords, we submit with the greatest respect that the questions put by your lordship in that passage do give the appearance of being not elucidation but cross examination. It starts off with a set of systematic questions which take the witness to the position eventually that he and the African National Congress agreed with the idea that you can't get true peace without oppression. It gets the witness to accept that that appears to be Russia's view, and that the African National Congress is glad that that is Russia's view. Asked whether it agrees with it, distinguishes the attitude towards Russia from the attitude towards hypothetical examples such as Denmark, and then introduces the suggestion to the witness that there may be a relation between this and the Communist view of peace which was deposed to by Prof, Murray. Now again, my lords, in view of the fact that Communism plays this peculiar part in the Crown's case, this particular part in the Crown's case, we submit that the meaning which accused persons would attach to this passage of questioning is that your lordship was concerned to show that the African National Congress

21 16701 view on peace was firstly like Soviet Russia's, and secondly, similar to a Communist view. That this was not a question of elucidation, "but with great respect, my lords, that it gave the appearance at least - - my lord, I say the appearance at least of being a sustained attempt to bring the witness to a certain point of view. there? RUMPFF J: You have quoted the last reference MR. KBMlRrDGE: Yes, my lord. RUMPFF J; Then I think I asked Mr. Trengove the passage which he then reads, because it follows on: "The youth of South Africa hoped then that the noble ideals of Stalin have been left as a heritage for the Soviet Union and the world, and the greatest memorial to him would be to strive so that peace and freedom ultimately dominate the world". Prom there on the last question goes on the peace dominating the world. MR. KENTRIDG3 Yes, my lord. Now, my lord, as I did point out before your lordship had started questioning Mr. Luthuli, his lordship Mr. Justice Bekker had elucidated the witness' view of that resolution and the A.N.C. attitude to that resolution, and we would respectfully submit, my lord, that although your lordship' questions do indeed have relevance to that passage - - we don't suggest that they are irrelevant - - we are, my lord, forced with respect to make the submission, which I have made, that your lordship's sustained questioning gives the impression that your lordship was not concerned to elucidate the witness' view, ^hich had indeed been elucidated by his lordship Mr. Justice Bekker, but to

22 bring the witness to a certain position, to arrive at a certain position. And it was for that reason, my lord, that we said with respect that this passage gives the impression of looking as though it were not elucidation but rather 5 planned cross examination. Now, my lord, towards the end of the same volume at page your lordship goes back to the question of the articles by Mr. Mandela, Mr. Price and Ruth 10 First, Now here, again, my lord, your lordship puts forward the interpretation of Ruth First's article, which is one of the - - the inference to be drawn from that article - that article appears in the Particulars to the Indictment and its interpretation for what it is worth 15 is one of the issues in the case - - your lordship at the foot of that page goes back to that article, and says, line 27: ( n Q) Now if I remember correctly, I may be wrong, but if I remember correctly, the effect of her article is that 20 an oppressed people which does not get satisfaction in their grievances through parliamentary means may justifiably resort of revolution." Now the witness, my lord, with respect, does not agree with your lordship and says 'NO, with respect my own frank view is that, as I have alredy 25 said when I read that article - or when I read that article - when she made that reference its in fact in reply to the criticism - - and he gives his view, which may be a right one or a wrong one. But, my lords, your lordship with respect, made 30 A

23 it only too clear that your lordship regarded the witness' answer with frank disbelief. Your lordship said: "Is your answer really that one cannot read into her article a justification for open revolution". I stress the word really', my lord. And the witness gives his answer again and your lordship says again: "Is that really the effect of your evidence, that one should not interpret that article as constituting a justification", and the witness, my lord, who with respect clearly saw that your lordship was expressing disbelief said, 'Really, my lords, that is my own honest stand, as I have read through these articles And we do submit there, my lord, that the unfor tunate effect on the witness, we submit, was to give the impression that your lordship was expressing a strong disbelief in the possibility that any person could interpret that article in a way different from your lordship's. And, my lord, a similar situation arose in connection with the evidence about an African National Congress report which my learned friend Mr. Trengove brought up immediately afterwards, at page 796. My learned friend brought up a document, A.37, in which there was a reference to the African National or forces allied to it, being concerned with Congress certain events including the Cape Coloured Strike in 1951, and the clash in November, Now, Mr. Luthuli, my lords, gave his views on that document and your lordship took it up. Your lordship asked for the document, the witness continued his evidence, and at page your lordship asked, "Just reading through this wouldn't one

24 get the impression that the author tries to indicate that behind these incidents was the African National Congress. Mr. Luthuli, my lord, answered, and your lordship takes it up. The attitude of the witness is that yes, it's capable of that interpretation, but that in fact it wasn't so. Then at the bottom of the page the witness says 'Yes, my lord; my lord, I should say that it is possible', I think, for that construction possibly to be put on to that, my lord", but then your lordship asks ( M Q) But is it not so in fact", RUMPFF J; Dealing with the facts of the allegation in the document. MR. KENTRIDGEs Yes; in other words, is the fact not true, the fact which the witness has already dealt with, my lord. RUMPFF J: Yes. MR. KENTRIDGE-; And then, my lord, your lordship continues the questioning on that document. Now, my lord, there are a number of other passages in the evidence of the witness Mr. Luthuli which I don't propose to refer to in detail. We submit that they fall within the principles enunciated by my learned leader, but I do wish, my lord... BEKKER J; Are the details there as given by Mr. Fischer two days ago? MR. KENTRIDG-Es Yes, my lord, but we have now been.. my learned leader referred, to 120 extracts; we have now, or rather we are having them typed out, so we will be able immediately - I think after the adjournment - to hand your lordships the list, and it is our submission

25 that the general points made by my learned leader do cover the other references to the evidence of the witness Luthuli. RUMPFF J: Yes. MR. KENTRIDGE; Now, my lord, the evidence of the witness Nelson Mandela, in Vol. 75 of the record, at the bottom of page f my lords. That was a discussion arising out of certain lectures when the witness was giving his evidence about democracy, in which the passage occurred, "All people must vote or the laws will not be fair; if only rich people vote the laws will not be fair to the poor; if only educated people vote the laws will be unfair to the uneducated." And then he is asked does that represent Congress franchise policy and he says yes, that is Congress view. Now this paragraph rejects educational qualifications - - is that the Congress view. Yes, that is the Congress view, says the witness. And his lordship Mr. Justice Bekker clarifies it even further, "On the question of general franchise, is it Congress policy then that no qualifications whatsoever" and the answer is "That is so". Then he is asked by Counsel "Would there possibly be an age qualification" and he says "There would be an age qualification of course." Now, my lords, your lordship then asks a series of questions which in our respectful submission only a criticism of the merits of that policy. constituted Your lordships asks: "Why would you have that" - that is to say "Why would you have an age qualification", and the witness says, "We don't want children, people who are not mature, to decide the fate and future of the country; we want to give the franchise to people who we think will be in a

26 16706 position to exercise their vote judiciously." Your lordship says: "As a matter of criticism in regard to unqualified democracy generally, isn't it much on the same basis"? No, my lord", and your lordship puts it: ("Q) If you have children who know nothing, and people who know nothing? No, my lord." Your lordship makes it clear that your lordship is not thinking on racial lines. The witness indicates that his view is that people should have the right to participate in government, with or without education. Your lordship puts it: - ("Q) What is the value of the participation in the government of the State, of people who know nothing. Are they not subject as much to the influence and direction of leaders as children would be? (A) No, my lord", and the witness goes on to say 'This is what happens, a man stands up and makes a speech and men listening to the policy decide whether this man will advance their interests, and on that they vote for a candidate; it has nothing to do with education. Your lordship then puts the question: - ("Q) He looks only at his own interests", and then the questioning went on with Counsel, I regret to say, making a comment which perhaps might not have been made, but, my lords, with regard to this questioning we do very respectfully submit that the only issue raised in this questioning is the desirability of the policy, whether it's a logical policy not to have an educational qualification, whether it's a proper policy the view of the witness and of the African National Congress was perfectly

27 clear. It was not left in any obscurity, my lord; the only question remaining was the desirability, and, mylord, we do submit, with respect, that these particular questions were from the point of view of the accused unfortunate; they suggest that allowing uneducated people to vote is really no different from allowing children to vote, that uneducated people, like children, would simply be led where their leaders would want to lead them. Now my lords, I'm sure that when your lordghip asked those questions, your lordship did not just how hurtful those questions would be to the realise accused. Your lordship, I T m sure, will on reflection understand that not only, my lord, are many of the followers of the accused not educated persons, but a number of the accused themselves, by reason of the poverty of their parents, have not enjoyed the advantages of education, but none the less, my lord, they are grown men, they have their self respect, they are respected by their associates, they are regarded as mature and adult men, and this comparison between their capacity to exercise a vote, and the capacity of children, I'm sure your lordship will realise when I put it now, must have been and was indeed most hurtful and humiliating to them. As toothe suggestion that even if they could vote they could possibly not see beyond their own interests. My lords, your lordship will realise from the point of view of the accused also now, although I am certain there was no actual intention in this regard at the time, that this is further unfortunate because the very points raised by your lordship are so often raised by

28 16708 the political opponents in this country and elsewhere, of the policy of the accused and the organisations to which they belong. And, my lord, we do submit therefore that in these questions your lordship, with respect, unfortunately gave expression to what must appear to the accused to be a feeling of strong opposition on your lordship's part to their own political aspirations. We therefore submit, my lord, that those questions, too, fall within the category referred to by my learned leader, Now, my lords, there is a further passage in the evidence of the witness Mandela, a passage of some pages in the s ame volume to which I would like to refer. My lords, this is on page of the record. This is about the question of precautions against violence being taken in the Western Areas. Your lordship puts it on line 22 ("Q) Mr. Mandela, you say that the organisation took precautions to prevent violence, and you quoted the Defiance Campaign and then you quoted as an example the desirability of having stay at homes in preference to strikes? Yes." ("Q) Now, although you were banned at the time, we have had evidence about the Western Areas Removal; you have listened to that? (A) Yes." ("Q) Presumably you were interested in reading at the time how things were proceeding? (A) Yes." ("Q) Without actively participating in the thing itself. Now what would you say were the precautions taken by the A.N.C. to prevent violence at the removal of the people on that occasion? (A) Well, my lord, I can only go by

29 reports because I was no longer active," ("Q) I also invite you to go on the evidence that we have heard here". Now the witness has made it clear, my lords, that he hasn't got firsthand knowledge, or information, but your lordship asks him in effect, with respect, to comment on the evidence heard here in Court in order to give his opinion about the precautions taken by the A.N.C. Now the witness then speaks of what he knows from reports - the maintaining of the policy of nonviolence. He says he was content to hear the reports that a statement calling upon the people to be nonviolent and peaceful had been made, and that he was not aware of any other precautions; there may well have been other precautions, but that is all he can tell his lordship, he says. Then your lordship asks him for his opinion on the evidence which has been heard in Court: - ("Q) Is there anything in the evidence that you have heard that you would say constitutes precautions", and says except from the point of view of speeches, which have referred to the fact that their policy was one of non-violence, he says he knows there were thousands of speeches made Then your lordship asks him whether the speeches heard in Court, "Is there any one that he remembers that would indicate that the speaker gave particulars about precautions". He says well, he can't remember. I take it, my lord, whether he could remember

30 16710 or not - - it is either in speeches or it isn^t, and he goes on to discuss general Congress doctrine of nonviolence - the emphasis on non-violence - hut he makes it clear on page at line 10 that he is speaking purely from hearsay; there may have been precautions taken but that he doesn't know. Now, my lords, we would submit that up to that stage in a sense the witness has really been challenged - he has no personal knowledge, he is really having it put to him, we would submit, as a cross examiner would - that well, although he wouldn't know that's how my learned friend put it to witnesses - "Well, you don't know yourself but what do you say about this document; what do you say about this other evidence in Court; how would you comment on it," But, my lords, we submit that there was nothing clearly that the witness could elucidate. He was really being asked to comment on the evidence in Court, and then your lordship asked in the middle of page 15964s ( H Q) How do you reconcile the going into action of volunteers to try to save families from the compulsory removal with the idea of precautionary methods to avoid violence?" Now, my lord, that we submit - that suggestion that there is something to be reconciled - involves the assumption that the going into action of the volunteers to try to save families from compulsory removal, had in it some element Of possible violence. But the witness says that may well be a precautionary method, and your lordship asked him in what way and the witness said to remove the people before the people came there. Your lordship says it is obvious - - "When the police are

31 busy, and volunteers move in", putting that situation; the witness says: "As I understood the position, I may be wrong, I may not have listened carefully, but as I understood the position it would appear that the day before removal families were evacuated. And your lordship says "That may be so", but then on page your lordship puts the hypothesis to the witness. My lord, your lordship said ("Q) If they had been moved into the area while the police were doing their work, what would your opinion be then in regard to precautionary methods to avoid trouble and violence". Now, my lord, it's quite clear the witness doesn't know, he cannot even remember the evidence completely clearlypossibly. Your lordship puts the possibility to him and asks him for his opinion of it. Now, my lord, we submit that your lordship does appe ar to make the assumption that if volunteers went in when the police were doing their work, that would be something violent, and inconsistent possibly with the precautions, and that, my lord, even if that were the evidence, that would be a matter of issue in the case, and secondly, my lord, we do submit generally that these questions are an example of questions of such a nature that the witness must get the impression that your lordship wasn't simply elucidating the position, because the witness had made it quite clear and your lordship had accepted, that he couldn't throw any light on actual events. And we submit, my lord, that the witness would obviously be likely to get the impression that by putting the matter to him in this way, rather as the Crown examiners have been doing in this case, that your lordship

32 was in effect tihallenging his evidence ah out precautions to prevent violence. Now, my lord, for those reasons we submit also that those two particular examples from the evidence of the witness Mandela fall within the categories outlined by my learned leader. (COURT ADJOURNED UNTIL 2.15-P.M-) ON THE COURT RESUMING- AT 2.15 P.M: MR. PIS CHER; My lords, I am left to deal with a few illustrations from the witness Lollen with some reference to the witnesses Nkalepe and Ntsangani. I refer your lordships in the first place to page which is a passage going to page 15309, in which your lordship was questioning the witness about the distribution of lectures«at the foot of i ge 15305, my lords, if your lordships will turn to the question - "Just before you go on, you requested them to make a comment - that was when the lectures were distributed by the National Action Committee Secretariat, or whoever it was - the Secret ary. BEKKER J; Are these the three lectures? MR. PISCHER; These are the three lectures, my lord. I refer to this, my lords, because I will in addition jpist to mentioning the passages which are relevant refer also to the questions directed to the

33 16713 witness Nkalepe and Ntsangani on the same subject. Your lordship will see your lordship asked whether V the documents were to be regarded as policy - that's on and then queried whether - why, if the A.N.C. had no policy making powers, and they were not policy making, why it shouldn't (inaudible) - raising the question of why it had been submitted to the National Organisations. Now then, at the foot of that page, my lords, your lordship asks whether they did comment, and Lollen says that he does not remember ever discussing any of the documents with the organisations. ("Q) Why wouldn't they? (A) My lord, it's not a question of why wouldn't they; the organisations dont not efficiently run". "You send something to an organisation and it takes months before you get a reply." The questioning nntinues, my lords, and I'd like to refer to page where your lordship asks: ("Q) Why were they sent eventually? (A) I think the representatives themselves on the National Action Council from the various organisations were pressed for time, and this was round about March already " etc. Then your lordship asks,,! (Q) From your replies, does it follow that the lectures were not circulated among members of the various organisations by your organisation? (a) No, ourorganisation never circulated these lectures." ("Q) Why not? (A) I did not know, my lord". Your lordship pressed him on page 309: ("Qj Yes, but it was part of the Congress"and he said no organisations were ever compelled to discuss, and your lordship said - ("Q) Why were they not circulated by your organisation"

34 Now, my lord, one knows what evidence Prof.Murray has given on the subject, and there would seem to be some point from the Crown's case in suggesting that in fact they were approved and circulated, or approved and /or circulated by the organisations. If I might depart from this volume for a moment, my lords, your lordships to the volume of Nkalepe's I would refer evidence, 15690; at that page your lordship took up the questioning of Nkalepe; this question refers to the lecture A.84, my lord. Your lortffship says there: - ("Q) At the time when you received it were you busy preparing for the Congress? (A) That is so." ("Q) I think it is cl ar that one of the tasks was to collect demands? (A) That is so." ( M Q) Now was i" part of the policy of your organisation to inform people at the Congress of the People and to try and teach them the position? (A) Yes.". And so the questions go on, my lords, to suggest in the last questior "I put you the question because you say that it came from the National Action Council; the work of these Councils was mostly with the organisation of the Congress of the People and the colle ction of demands? (i..) That is correct,." ( M Q) IS that correct? \L) Yes, that is correct." ("Q) So that when you got the directive to read the document and study it so as to teach others, that came from the National Action Council. Did you consider it to enlighten the people before they made their demands? (A) I take it, my lord, that was the object." ("Q) Now if that was so, why didn't you read this document?" and then your lordship goes on "Wasn't this part of the work"

35 16715 "Why didn't you deem it necessary". My lord, the same appears - the same kind of evidence appears in the volume of the record which has just become available to-day... RUMPFF J; Is that the last volume available? MR. FISCHER; It's the last volume available, I understand, my lord, and it's I6253, where Nkalepe says -where Ntsangani rather says that the lectures were not used in the Hew Brighton branch. Your lordship asks: ("Q) Why not" and questions this statement. My lords, our submission is that that was clearly a matter for the Crown, if it wished, to try and establish that the accused were untruthful or hiding the facts in dealing with these lectures and stating that the National organisations had not circulated them, and that members working for the Congress of the People had not read the three lectures in question. In the words of Bacon, my lords, one suggests that those are facts which should have come from the Bar ar.d that the Court should have waited for them to come from the Bar. My lords, while I have the volumes of Ntsangani and Nkalepe open - and while they are in front of your lordships - I would like as far as Btsangani is concerned to refer merely to the probxem of the document VM.5 which is dealt with - VM.15 - which is dealt with at page and 279, which was dealt with by your lordship at to 95. Now, as early as perhaps earlier, the witness Ntsangani had made it quite plain that this had been rejected by the Executive. BEKIE R J: What is the document, VM.15? MR. FISCHER: That, my lord, was the annual

36 "Report for 1954, a secretarial - an Executive report - to the Annual Conference of the bramch, and your lordship will remember that the evidence of the witness was that the secretary had been ill, Mqota, and that he had simply got up at the meeting and read this out. Now, my lord, your lordship at 16289, and for the next six pages, proceeded at some considerable length to query the statement as to why it - - as to whether it hadn't been read by the Executive, why it hadn't been read by the Executive, why the chairman hadn't asked Mqota before the meeting to have a look at the report, and so on on many other aspects of the matter. One suggests, my lord, that once the evidence was clear that it had been rejected, then if the Crown felt so inclined it might try and establish that that was untruthful, but that it was not for your lordship to raise all these problems. As far as Nkaleepe is concerned, my lords, there are one or two passages to which I should refer. The first, my lords, I have referred to already, and that is the passage at to 691 > questioning the witness about whether he had read this document. I make the further submission, my lords, that the questions seemed quite clearly to indicate a disbelief in the witness' statement. Now, my lords, much more important in our submission is a passage at (H). There were a number of pages numbered My lord, this was a member of the Port Elizabeth branch. In our respectful submission the questions which follow on this, from line 28 to page (J)> line 19, can only be interpreted, my lords,

37 16717 as a method of attaching liability to a Port Elizabeth branah of the African National Congress, for any violence that might have resulted in the Western Areas Removal scheme, a sort of constructive liability on the branch by virfcie of some knowledge beforehand that there might be trouble. Now I would ask your lordship to follow the questions as they appear. They start at the foot of page H: - ("Q) I just want to ask you this: did you know that the people in the Western Areas were told by the African National Congress and other people who were interested in the matter that they should not move"/ (A) Yes." ("Q) I take it from what you heard, and what you read,...? (A) My lord, I'm not very sure about reading it, but yes, from hearing and even from speeches..." Then at line 12 :- ( M Q) Now what did you think was going to happen on a particular day when the people were not going to move and the Government was going to move them? (A) My lord, Iexpected the people would be moved away by guns being pointed at them. Still they would move and obey." ("Q) Is it correct then that in the event you did expect either armed police or armed soldiers? (/ ) Yes." ("Q) Didyou know how many people were involved in this removal, or rather how many people were living in the area? (j.) No, my lord, I had no knowledge, because I was not arrested." ("Q) You've not been up to Johannesburg? (A) No." ("Q) Had you heard that this was a big matter, that there were lots of people involved? No, my lord, I never heard."

38 RUMPFF J: Or that it was a comparatively Small matter. MR. FISCHER; "Or that it was a comparatively small matter? No, my lord, I never heard." ( U Q) Now at tha& time, casting your mind back, at that time when this was said about Western Areas, and you realised that there might be a ibrceful removal by the State, did you ever think of what might happen on that particular day when there was such a forceful removal? No." Then follows the last question. Brit, my lords, the accused listening to this can with respect have made one inference only, and that was that if it became necessary, Port Elisabeth could be held liable - the Port Elizabeth branch could be held liable because of its knowledge, because if that were not the inference, my lord, then with great respect the questions would in our submission be meaningless. And, finally, my lords, as far as Nkalepe is concerned, I say with hesitation that it was unfair of your lordship at page to try to indicate to the witness that even the Bible sanctioned the use of force at times, or recounted the use of force. I shall refer to this again, my lords, but throughout there is this central, crucial issue in the case, the question of the use of violence. My lord, I have not counted the number of times on which your lordship has cross examined on this question. It must be innumerable. That is all, my lords, which I have to say about Nkalepe and Mtsangani, I turn to one or two further references in the evidence of Lollen. My lord, at page 15337> there is a small point; it's volume 72, which your lordships have

39 - * "before you - or had before your lordships when I started* There is a small point, but no doubt, ray lords, a point which I wish to refer to, where your lordship said that with regard to the Franchise it must have been, or was the policy of the Congress to give, to take but not to 5 give. That, my lords, appears at line 25 and I submit, my lords, it was not unfair of the witness to reply K in the next answer that there is nothing to give away. I might remind your lordships that this is a repetition of a question which was put to the witness A.J.Luthuli at page 13864, line 27. That, my lords, is 10 in Vol.65, at line 27. My lords, the next reference is in Vol.73 to page My lords, this and the succeeding five pages up to 15421, contains a series of questions asked by your lordship of the witness Lollen concerning a speech, I 15 think made by one Sejake, speaking of the possibility of a clash with the armed forces. In my submission, my lords, is that it shows an intensive cross examination of an accused on the meaning of a speech made by another and we submit, my lords, that unfortunately a passage 20 like this is almost inevitably to create in the minds of the accused a belief that they would not be impartially trie d. RUMPPF J; As a general question, on the Charge Sheet, if a conspiracy is proved - whatever the conspiracy well, depending on the contents of the conspiracy - - the acts and speeches of one conspirator may be held in y- law as against the other. MR. FISCHER; That is so, my lord. 30

40 RUMPFF J; That is correct, isn't it? MR. FISCHER; Yes, my lord., that is so. No, my lord, I'm not denying that it is relevant, if there is a conspiracy proved, but what I am referring to, my lord, is the manner in which Lollen is cross examined on what Sejake must have meant. May I just read the questions, my lord? It starts: "(Q) May I just ask you a question on this part of the speech which you have just dealt with, where the speaker is alleged to have said it requires hard practical work and sacrifice, you must be prepared to clash with the servants of the State; if the struggle assumes large and countrywide dimensions one might even have to clash with the armed forces. Now do you have the impression that the speaker here indicated first of all a conflict between the servants of the State in perhaps isolated cases.. one must be prepared to clash even with the servants of the State and if the struggle assumes very large dimensions - a very large and countrywide dimensions, one must be prepared even to clash with the armed forces? (A) May I have a copy of the speech, my lord?" f ( l, Q) I've read it to you, that's all? I don't know what he had in mind, to clash with the armed forces of the country", ( n Q) Well, I'm putting you the words? (I don't know what he had in mind, ( M Q) I'm putting the words to you as a hearer or a listener would listen to them. He assumes the possibility of a countrywide struggle, does he not? He says if the struggle assumes very large and countrywide dimensions...? That is so."

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