Professor Murray,

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1 It arises particularly out of the witness' last answer in regard to the whole of this witness' evidence as it now goes on. This witness is now purporting to interpret to Your Lordships this document. New, Milords, we had considered initially the question as to whether this witness (5 could properly if I may use the term stigmatise a document, whether the true procedure was not, Milords, that he should and can inform the Court as to what the phenomenon or doctrine of Communism is, and then he might as a matter of convenience take the Court by the hand, as it were, I (10 think that is the phrase that has been used in some of the cases, and point to certain phrases and documents. Then it is for the Court to say whether this or that is or is not Communism. Now, Milords, we have not objected up to now, because it is convenient, possibly, and we thought the (15 thing would come to an end. But Milords, the matter has now become burdensome, and is not in accordance with the rules of evidence, particularly where the witness permits himself not merely to quote ipsissimo verba and say this is in accordance with doctrine;. but where he in turn inter- (20 prets something, which is a matter entirely, Milord, if Your Lordship pleases, for the Court. Unless there is a question of what my learned friend referred to yesterday, and what was called the test of aesopism,. that was using language to conceal the true meaning, and an expert witness might (25 then be asked whether, what the true meaning is, just as a witness gives evidence on a foreign phrase. But Milord, I submit that from now on, at least this witness should be confirm, if the Crown wishes to continue with this procedure, simply to drawing the Court's attention to certain phrases, (30 and leaving it to the Court to infer unless, Milords, I

2 Professor Murraymake one further proviso, there are certain aspeots of Communist doctrine which he.ve not yet been covered, and which my learned friend wishes to lead the witness on. BY MR. JUSTICE RUMPFF: Although the point, as I see it, Mr. Maisels, is this, you can suggest that, and the Court might (5 suggest that to the Crown as well, but when it comes to a particular document, the Crown's attitude might be, the witness has given evidence about his opinion on Communism, Communist doctrine, it is for the Court to find whether a particular document contains something which is to be found in (10 Communist doctrine. But as we have an expert here, we are pointing that particular passage of the document on which we rely to the witness, and we are asking him as an expert whether that particular passage in his view coincides with Communist doctrine. In law the Crown can do so, (15 BY MR. MAISELS: No,, with respect, Milord, that is what the Crown can't do, BY MR. JUSTICE RUMPFF: Unless there is some because Milord, what the Crown is then doing, if Your Lordship pleases, is substituting the witness' opinion for Your Lordship's (20 opinion. That is what the Crown is doing. BY MR. JUSTICE RUMPFF: No, it is giving us the benefit of his opinion, leading us by the hand, and we have to decide whether that is so. BY MR. MAISELS: Milord, that is why I say leading by the (25 hand should consist of drawing the Court's attention because the reason for the drawing of the Court's attention is plain, otherwise this witness' evidence is wholly irrelevant, is to say "I draw the Court's attention to paragraph a, paragraph b, or these words..." or whatever it is. He ca n 't say (30 what the document means.

3 BY MR. JUSTICE RUMPFF: No, Tout he can say whether a particular document contains Communist doctrine. BY MR. MAISELS: No, he can't. Milord, let's take a simple example. The witness has constantly referred to fascism, imperialism, colonialism. And he has explained to Your (5 Lordships Communist doctrine on these topics. He then takes the word fascism in a particular context, and he says to Your Lordships, "That is Communist doctrine in that document." Now, Milord, with respect, that is a matter which Your Lordships will have to determine eventually, (10 and his opinion, with respect Milord, is not really admissible. As I say, Milord, we didn't object, because it was convenient if one goes through a large number of documents perhaps that the Court's attention should be directed to the phrases, but it has now become burdensome, and with respect,(15 Milord, it really is irrelevant in the true sense of the term. BY MR. JUSTICE RUMPFF; I know that you are trying to shorten this laborious procedure, but on the question of law I am not so certain whether you can draw a sharp line. BY MR. MAISELS: It is very difficult, Milord, I know there (20 is a distinction. Your Lordship will know Herold's case, in which His Lordship Mr. Justice Bekker sat in, where the question of an accountant's functions arose. He takes the Court by the hand, that's all. He can't give an opinion on the state of the books. He gives the Court the benefit (25 of his learning and then draws the Court's attention to certain features. The next answer is really not his function. Your Lordship knows the reference to Herold's case, it is 1956 Vol. II, at page 714, and that case...there was a subsequent case in the Provincial Division recently, the case(30 of Rootow Flour Mills and Adelson, where a slightly differ-

4 ent rule was applied, and the reference to that is 1958 Vol. IV page 235, and applying even the test in that case, Milord, my submission is... BY MR. JUSTICE RUMPFF: Isn't this a case where both is possible in law? (5 BY MR. MAISELS: It is only, Milord, where Your Lordship is not equipped, with respect, if Your Lordship is not equipped on the teaching of the doctrine to determine, then I agree. But the whole purpose of leading the witness for some days was to equip Your Lordships with the teachings, with the (10 doctrine, and then Milord, having done that, then Your Lordship's duty, with respect, and the furthest my learned friend can go } is to take a document and either through the witness... BY MR. JUSTICE RUMPFF: May I say, Mr. Maisels, there may be(15 two steps, -the construction of a document may involve more than one particular requirement. It is for the Court to construe a document as to what it means, but it may be that, for instance, take a certain document where a statement is made in the document that the mass of the people should (20 be organised against the Government. Now, that is what it says, that is what it means. Now, isn't the Crown entitled to ask the expert witness "Massing of people against a Government, is that something to be found in Communist rule?" BY MR. MAISELS: They have already done that, Milord. (25 BY MR. JUSTICE RUMPFF: That is another matter. If the Crown seeks to repeat it, then your objection may be against the repetitive way in which the Crown seeks to bring out this evidence. But I am on a question of principle. BY MR. MAISELS: It is on a question of principle. (30 BY MR. JUSTICE RUMPFF: Assume that there had been only one

5 document, and the witness gave his evidence the same as he has in the first few days, and then the question of the construction of a particular document as to whether or not it contains Communist doctrine became in issue, could you in that case have argued, this Court is not entitled to have the(5 witness' view on the document? BY MR. MAISELS: Yes. BY MR. JUSTICE RUMPFF: Because, the witness, having set out what Communism means, according to him, it is now for the Court to say whether this document contains Communism. (10 BY MR. MAISELS: Exactly, BY MR. JUSTICE RUMPFF: Could you have (tone that? BY MR. MAISELS: Yes. BY MR. JUSTICE RUMPFF: Wouldn't that have depended on the document? (15 BY MR. MAISELS: No, Milord, with respect, not. The witness gives Your Lordships the tenets may we leave Communism and go to something else of a particular belief. He says "These are the tenets of that belief." Takea simple case. Then the Crown takes the document and says to him: (20 Do you find any tenets there? That is really what it says. Now, Milord, that is for the Court, not for him. Whether he finds it or not doesn't matter. Milord, because what he is then doing he is interpreting to Your Lordships the English language., and that is what he can't do. If, (25 Milord, he were giving some... that is why, Milord, I qualified my remarks, Your Lordship will remember, and one of the reasons why we waited, is because we were possibly expecting, or we might have been expecting some double talk, the esoteric use of language, aesopism, foreign language, (30 it says black, but in this particular creed, black means white.

6 That sort of evidence Your Lordship can get, hut all that this witness is now doing, Milord, is interpreting the English language to Your Lordships. BY MR,, JUSTICE RUMPFF; But even if he had given that evidence before, then on your submission we still would have (5 to interpret the document on our own. BY MR. MAISELS: I quite agree, but Milord, as I said, we didn't object because we thought, well, it was convenient, and it doesn't really matter. BY MR. JUSTICE RUMPFF: I appreciate your argument, and if (10 it were a very convincing argument it would certainly help everybody in this case. It might be, I am trying to test it; Assume you have a medical professor who gives you the symptoms of pneumonia, and then a patient is produced, and on the patient there is a tag which is accepted as evidence that he(15 has got a temperature of this, he has got some particular symptoms. Then on your submission the doctor cannot be asked whether in his opinion that patient is suffering from pneumonia because it is the Court's duty to do so. BY MR. MAISELS: No, Milord, because in that kind of case, (20 Your Lordships will appreciate that Your Lordship is not dealing with a document; Your Lordship is dealing... if Your Lordship is dealing purely with a document; if one could transfer the patient to a document, and the doctor had said a patient suffering from pneumonia shows, a,b,c,d,e, nothing(25 else, then Milord, Your Lordship is not> with respect, doesn't require the assistance of the doctor, but the real difference is this, if Your Lordship pleases: The doctor's business is to diagnose. This witness' business isn't to diagnose. This witness' business is to instruct, to teach.(30 BY MR. JUSTICE RUMPFF: But why shouldn't his business be to

7 diagnose, if he is an expert on Communism. BY MR. MAISELS: Because, Milord, his diagnosis consists in reading a document, if it is a diagnosis, which is a ' V matter which Your Lordships have to do willy-nilly. In the case of the medical expert, with respect, it falls (5 on a different footing. BY MR. JUSTICE BEKKER: Phipson, I think, deals with the position, when an expert may express an opinion on the very point in issue. I think he puts it on this basis. If it is only through skill and learning that the matter can (10 properly be assessed, then the expert may express an opinion. If howevey, the Court is in as good a position, as anybody else, having had the benefit of the expert, then it is for the Court to decide. BY MR. MAISELS: That is so, Milord. The point I am trying(l5 to make. BY MR. JUSTICE BEKKER:If that is the correct approach, we don't know what documents are still to come; some of these documents may fall within the rule, some fall without the rule. (20 BY MR. MAISELS: That is what I said. I said if there were some fresh part of the doctrine, as a whole, on which the Court had not been instructed, then Milord, my learned friend is perfectly entitled there to lead the witness on that part of the doctrine, before he di als with the articu-(25 lar document, then Your Lordship knows that it relates to that. But as I have understood the position, we have now, by the time we have reached I don't know what number document, exhausted the phenomena insofar as it is relevant to this case. Otherwise, Milord, my learned friend needn't have(30 led the witness at all on Communism. He should have just

8 started document one, document, two, etc., after having qualified him. BY MR. JUSTICE RUMPFF: What are the authorities? Are they not authorities indicating that even if the Court is as qualified it may still...,, (5 BY MR. MAISELS: Well, Milord, the American cases...we have done a lot of learning on it, it is chapters and chapters.,,,, BY MR. JUSTICE RUMPFF: Just give us the tenets of those chapters, on this point. (10 BY MR. MAISELS: As usual, it is very difficult to give the tenets completely; the general idea in Phipson is that a Court rejects this kind of evidence because it tends to he unnecessarily burdensome, that it is irrelevant, that it lengthens trials; it is the Court's function eventually^ 15 There are other cases which indicates that the Court may derive assistance from the opinion of the expert, and therefore it is convenient to receive it. But I have not been able to find a case in Phipson where they deal with the interpretation of documents, excepting where they deal with(20 foreign languages, and Taylor, the 12th edition, paragraph 1422, which is exactly in point in paragraph 1424 at page 906. I quote this passage because I think, I submit that the interpretation of foreign documents is perhaps as close an analogy as one could get to the present case, (25 The principles which should govern our Courts in the construction of foreign documents were much discussed in a case where the question turned on the meaning of a preliminary marriage contract which had been drawn up in the Italian language, and executed at (30 Rome, The House of Lords held that before the judge

9 could discover and declare that meaning, he should obtain through the medium of skilled witnesses firstly, a translation of the document; secondly an explanation of any terms of art used in it; and thirdly information on any special law or any pecu-(5 liar rule of construction of the foreign state affecting it. Aided by these lights, the Court would then proceed to put a judicial construction upon the document. And Milord, that with respect, is what we have been contend-(10 ing, what we are contending for now. The Court is informed, by the witness, of the particular art in terms of Communism; it is informed of the phenomenon of Communism; it is informed of the doctrine of Communism. Now, Milord, with the greatest respect, it is now for the Court to take the docu- (15 ment and interpret it, in the light of the witness' evidence y subject to cross-examination. We make this concession because of the nature of the case, that it might be convenient for every point, and particularly Milord, with respect, if I may say so for the defence, if the witness would indicate(20 in regard to any particular one of the documents which the phrase Crown wishes to deal with, a particular sentence, page, whatever he likes, on a particular page, that is all, as being something which the Crown relies on in support of what we assume is the tenor of this witness' evidence. (25 BY MR. JUSTICE RUMPFF: Have you got any other authorities? BY MR. MAISELS: I mentioned Wigmore, Milord; unfortunately I haven't got that here. In the Herold case, Milord, the passage in Wigmore is quoted, Herold 1 s case is 1956 Vol. II. page 706 I'm sorry, 714 at 716, and I mentioned Wig- (30 more's reasoning rather shortly, it is quoted here.

10 And His Lordship, after dealing with an argument of counsel, said this:"the reason for the rule which was for the Court to form an opinion or draw inferences from the relevant facts, proved that it was not permissible for a witness to express an opinion upon any fact upon which the Court (5 itself can form an opinion. The reason for the rule is clear and is crisply set out by Wigmore on evidence, Vol.VII paragraph 1918, page 11, The learned author says: The rule endeavours to save time and avoid confusing testimony by telling the witness the tribunal is on this subject in (10 possession of the same material of information as yourself. Thus as you can add nothing to our materials for judgment, your further testimony is unnecessary, and merely cumbers the proceedings." And that is the end of the quotation, "It is this living principle which is or ought to be (15 applied in each instance, and nothing more definite is there than the test involved by this principle," Now, Milord, that in our submission is, certainly at this stage of the case, the time to apply this rule. Unless, of course, my learned friend tells Your Lordship, that he roposes to(20 Communist lead the witness on more aspects of/doctrine which have not hitherto been covered D And we have waited for a long time before raising this point, in the hope, Milord, that something new may emerge out of Africa. BY MR. JUSTICE RUMPFF: We thought about that when this par-(2 5 ticular evidence started. BY MR. MAISEjS: I can assure Your Lordships, we thought about it last year, when the case was supposed to start, but we decided that it may be a matter of convenience to have a general lecture, and then the application of the documents,(30 taking the Court by the hand through the documents, that is

11 Professor Murrayall, "but that is not what has heen happening over the last week. BY MR. JUSTICE RUMPFF: Have you got any more authorities? BY MR. MAISELS: Well, Milord, I have referred Your Lordships for convenience to the Rootow Flour Kills case and (5 Adelson, It is the 1958 Vol. IV at page 235, That was a case in which an accountant was called to give evidence as to whether on the hooks the business was being conducted eratically or not. The Court held that it could receive the evidence in that particular case. But Herold's case, (10 Milord, from my recollection of it, there was an earlier case in the Transvaal, and Mr, Justice Bekker in the judgment in Herold's case says, he refers to the authorities, there was an earlier case of Rosenberg & Klisser, where the matter was raised by myself in regard to an accountant. (15 There was evidence, and I can give Your Lordships the reference to that later if you require it. A matter which is not entirely unanalogous, is that of trade mark cases, and Your Lordship knows that at one stage there was a tendency to call evidence to show that one trade mark resembles(20 another, so that it is calculated to deceive. And that, Milords, would be a case where one would suppose that an expert person would be of value, but that evidence is universally rejected* It is for the Court to look and to see the passage which deals with that is in Taylor, paragraph ( , "thus evidence is inadmissible to prove that one name or one trademark so nearly resembles another as to be calculated to deceive, or that the makeup of one tin of coffee is sc like another as to be calculated to deceive purchasers," We base ourselves purely on the question that (30 the case has now reached the stage where it is a question

12 Professor Murray of interpretation of the document, solely, without any further peculiar tests. Any further peculiar tests, of course, insofar as they may "be relevant, they can "be led. BY MR. JUSTICE RUMPEF; Is it the defence submission that the Court,on the evidence given, and limited to the evidence(5 given on communism, is as qualified to express an opinion on whether a particular document contains the doctrines referred to, as the witness, BY MR. MAISELS: I'M obliged to Your Lordship for saying "as limited by the evidence given," because the witness can (10 only give the evidence in line with what he has already told Your Lordships, and therefore if he hasn't done that, then this evidence is... BY MR. JUSTICE RUMPFF: On what I put, is that the defence submission? (15 BY MR. MAIS-HLS: Yes. The Defence submission is this, the Crown is either now giving what it states are the principles of communism, or unless it tells Your Lordships that it proposes leading further evidence on that having done that, it is now purely a question of English language. (20 That is all. BY MR. JUSTICE RUMPFF: Take the case of a contract entered into, a written contract entered into in Italy, and being the matter for construction in this Court, as to whether a particular party is liable under that contract in this (25 hypothetical situation. Is your submission that if the expert on foreign law gives the requirements under Italian law or sale for a contract/ and a translation of the contract, that it is then for the Court to decide whether that law is a contract or sale in Italian law (30 BY MR. MAISELS; That is exactly the point, Milord. What is..

13 Collection: 1956 Treason Trial Collection number: AD1812 PUBLISHER: Publisher:- Location: Historical Papers, The Library, University of the Witwatersrand Johannesburg LEGAL NOTICES: Copyright Notice: All materials on the Historical Papers website are protected by South African copyright law and may not be reproduced, distributed, transmitted, displayed, or otherwise published in any format, without the prior written permission of the copyright owner. Disclaimer and Terms of Use: Provided that you maintain all copyright and other notices contained therein, you may download material (one machine readable copy and one print copy per page) for your personal and/or educational non-commercial use only. People using these records relating to the archives of Historical Papers, The Library, University of the Witwatersrand, Johannesburg, are reminded that such records sometimes contain material which is uncorroborated, inaccurate, distorted or untrue. While these digital records are true facsimiles of paper documents and the information contained herein is obtained from sources believed to be accurate and reliable, Historical Papers, University of the Witwatersrand has not independently verified their content. Consequently, the University is not responsible for any errors or omissions and excludes any and all liability for any errors in or omissions from the information on the website or any related information on third party websites accessible from this website.