16721. ("Q) Then he says one will have to clash with the armed forces of the country? xhat is so," ("Q) If that is what he said, he assumed that in order to deal with the situation the Government had called out the army? That is so, t: ("Q) That is the impression one gets? Yes," ("Q) So he visualises the situation in which the Government has brought out the army to deal with the situation? I'd like to have a look at the speech." ( M Q) Yes, well, the difficulty is that the listener might not ask the speaker every time to re hash what he had just said? The listener maynot pay much attention to that part of the speech as well, my lord." ("Q) Why shouldn't he? A person listening to about five speeches etc," Then your lordship refers to the page. ( M Q) I'm not concerned with what he visualises, except that from what; he said one must infer that he visualises a state of affairs in the country in which the Government has calle d out the army, isn't that the plain meaning?" and your lordship elaborates on that. Then your next question, my lord, was: ( M Q) It doesn't mean that there will be a struggle on a wide scale in which the Government has calm out the army; you say it doesn't flow from this?" Now then, my lords, there are a number of questions which I just want to read by themselves on page 1549 i ("Q) Yes, well, there is a clash now, one shall have to clash; the army is called out, where is the clash then? If they are to do the essential services". That was
16722 because the witness had suggested that... (»Q) Well, has this any other meaning, than if there is a wide, a countrywide struggle the army may have to be called out, and you may have to clash with the army?" Is there any other meaning, if and when the army is called out?- But he puts this as a possibility in the future - it's possible," ( n Q) Leave the end of the speech..." because the witness had referred to the end of the speech which seemed to suggest it would not be in the form of a battle,. ( U Q) Leave aside the end of the speeoh, I'm on this part: what other clash than a physical clash could he have in mind? It is true that at the end of the speeoh he may well have said well, actually there are powers and... which a bomb cannot resist?- That Is true, the atom bomb." ( U Q) The powers in your resistance are greater,than may even the atom bomb? Well, that/mean that even if force is used against you your powers of resistance are greater than that." ("Q) Even the force of an atom bomb may be used against you.. your powers of resistance are greater. But that is at the end. Can you suggest any other form of clask than a physical clash?" My lords, the three or four questions on page 420 are to the same effect in our submission, and at 421 your lordship again says, "Yes, but I'm only on the words here, 'One shall have to clash even with the armed forces of the country'." "If the Government calls in the army, you cannot say what the Government
1672J. will do, but can you say what you will do? We would have our passive struggle." ("Q) What would happen if the Government called out the array in the event of a countrywide national struggle", and finally, ("Q) Well, what does it mean then, one shall have to clash with the array; that is the test? The 5 dash with the arraed forces is the test we must pass." ( U Q) Or 3e t us put it this way, the willingness to clash - - that's the willingness, presumably, my lord, on the part of the Congresses - - "Is that not how one reads it? You see, I'm asking you because you were present when the speech was made, and as it stands here you say it does not conflict with Congress policy". Now, with great respect, my lord, again the accused could in my submission have drawn one conclu- sion and one only, namely that your lordship held the 1! view that Sejake' s speech was intended to invite a clash with the armed forces, or to suggest a clash. And, my lords, thirty pages later on, I make the same submission here, that the accused would draw the inference that they might not obtain a fair trial. This, 2 my lords, is a passage at page 15446 of the record. Now, my lords, this referred to an article in I think 'Liberation' which had referred to war in Kenya, a ruthless massacre of thousands. It dealt with that sort of thing, and if your lordship looks at the top of 2 15446 I think one picks up the thread of the evidence. ("Q) Would the Congress see the matter in that way. Let me help you..." This is cross examination by the Crown, my lords. "Let me help you, the essential ideal 3 i j
16724 there is that the ruling class of the country is desperate, ruthless, absolutely ruthless, and will stop at nothing to suppress the liberatory movement". Now then your lordship asks: "If you read this article is it only a possibility, or is it set forth as a certainty? It is set forth as a possibility, my lords." ( M Q) Where do you derive that from, the opinion thatit is a possibility? Prom the parts I have read*" ( M Q) That is my difficulty..." and your lordship refers to the passage and says: "The writer knows, 'We have known them, we have met them before. Our fathers and our grandfathers have met the m'. Then he says, 'We know their contempt for humanity and their disregard for human life. We know that they will stop at nothing, they will fill rivers of blood and so it goes on. And the writer says: 'Talking about the bullets, they are meant for us. Only the conscious determined participation.. I'm sorry, my lords, that's the ansv-or, talking about the bulue ts. Your lordship says - ( H Q) I'm coming to that, I'm on this, and in the opinion of the writer there is a possibility only, or is this set out by him as a certainty?" In the next question, my lord, your lordship says: ( W Q) Where at first the writer 'These people who stop at nothing, they will spill rivers of blood', then we come to the passage which you refer to quite rightly, the bullets are meant for us.. that is the picture put up with the type of man the Congress Alliance has to deal with;" Having put up that picture, the final statement is "Only the conscious determined participation of the
16725. South African people in the defence of peace can avert the massacre that is "being " "In other words", says your lordship, "The ruling class of the Government is plotting a murder on a large scale, a massaore. If that is correct what would that plot be in your opinion? As the writer says a plot 5 against... they will stop at nothing, they will spill rivers of blood in doing this." "What is the massacre" the writer refers to? "Planning a massacre, what is that massacre? I don't know, my lord," ( U Q) Isn't it the massacre in order to suppress the claims 10 of the Congress Alliance? I haven't read the whole article." ( n Q) Could it be anything else; assume that this means the Government kill." is plotting a massacre? It wants to 15 ( W Q) Now is there anything else that the Governmdnt could have, in the opinion of the author, plotted against than the attempts to acquire rights by the oppressed people? Assuming that is correct, my lord, the writer says we can avert that." 20 ("Q) I'm coming to that, I'm asking you what the plot is." And lower down on the page, my lord, line 20 the witness replies: 'If, after having put up that picture of the Government being prepared to massacre people - that is if the people are not determined to work for peace, if 25 the people do not struggle in a non-violent method, not to give them a chance to use.... ', your lordship asks:- ("Q) How can the people by working for peace avert the ^ massacre? They could, my lord, because by working for
16726 peace they are claiming their rights." Then, my lord, on page 15449 at line 2, your lordship presses this: ("Q) But the writer has said, I think, that the very fact that you are slaiming your rights is causing the Government to plot to murder you. You see, I don't follow this last paragraph." May I summarise it this way, my lords. The writer says that our claims will be opposed by the Government, not only opposed, but the Government will kill us; then If the writer says that only the deterrined participation in the defence of peace can avert the massacre, now what does peace mean there? If what we have heard about peace is part of the struggle for rights that means peace, and that struggle will be met by the Government with its violence. My lord, your lordship will recognise that this is the same theme as the suggestion that it was the Congresses who either prepared the fire which produced the spark, or produced the spark, the materialv$iich would cause the conflagration. RUMPFE J: Yes. MR. FISCHER: Then, my lord, there is again at page 15450 a return to the problem of what peace means, whether it is merely the absence of conflict, or whether it doesn't mean something more than that. Your lordship ends up by sayings "I mean, to your and your organisation the word peace in this context means not only absence of war, but conditions under which the causes for war are eliminated." Now with respect, my lord, in both these topics your lordship did, quite unconsciously perhaps,
16727 descend into the arena to contend with the witness, and so, my lord, to create the impression that your lordship will have made it difficult for your lordship eventually to take a completely impartial view, either of the evidence or of the witness and his demeanour. My lord, i turn now to the last two illustrations, and the first concerns the passage dealing with the Island Quamoi (?), and I ask your lordship to analyse with soi detail and care the structure of the questions in this passage which appears at page 15456. Again, my lords, in a different form it constitutes in our submission a severe and extremely sharp questioning of the Congress policy of non-violence, the central issue in this case. Your lordship started off in this way: - ( M Q) I just want to ask you when Counsel put you the question whether or not the Congress Alliance had considered its position if it should become embroiled in a war. I think you said the Congress Alliance being an Alliance based on non-violence would continue its struggle on that basis? That is correct, my lord." ("Q) Could you say why? Why is Congress a non-violent organisation". My lord, your lordship is questioning the very basis of the evidence given by every witness. The witness said: 'Well, my lord, that is the policy of the Congress, that Congress has adopted,' ("Q) Why? Because it believes that violence does not exist - should not exist," ("Q) You believe that violence should not exist. I think
16728 you have also suggested that the Congress Alliance is working for peace. Would you that in terms of the evidence that we have heard here that China is one of the countries working for peace"; then your lordship changes to the Soviet Union. 5 Now, my lord, with respect, this had no relevance to the question which had been debated so frequently before, and your lordship was, in about twenty lines, about to use an illustration of certain bombing which the papers had reported. Your lordship first obtained the witness' assent, an expression of his belief that the Soviet 10 Union was striving for peace, and that China was also one of the countries striving for world peace. Then your lordship, having got the approval of the witness for those countries or their policies, your lordship says: - ( n Q) In the struggle for peace could it become neoessary 15 to use violence? I don't see how it could " RUMPFF J: In its struggle for peace. MR. FISCHER: I'm sorry, my lord, 'In it's struggle for peace, could it become necessary to use violence'? (A) I don't see how it becomes necessary to use violence 20 in the struggle for peace.' Then your lordship said: "We have read, I think, that on the occasion of the recent visit of President Eisenhower, that China sent quite a number of bombs to Quamoi". The witness disclaims knowledge of this. 25 Your lordship recognises that as a detainee he would not have read about it. Then your lordship, perhaps unconsciously, asks him to assume that there was bombing of Quimoion a visit by President Eisemhower, and bombing 30
16729 by the Chinese, and then faces the witness with a question 1 whether this is a non-violent act in pursuance of peace. Now, ray lord, if I had to take this at its face value I would make the submission, my lords, that we have stated too low the grounds for asking your lordship to recuse himself. I have, I assume correctly, my 5 lord said that I assume your lordship was not conscious of what your lordship was doing here. Your lordship went on: "That is why I am asking you why exactly do you regard non-violence as necessary for the struggle in pursuance of peace". 10 My lords, there follows a passage on what is really a metaphysical problem in which the witness in the middle of the page resorts to Ghandi, to India, and he says that is why he defends the right to defend oneself; he says that that is why even Ghandi's policy in India 15 was rejected, and your lordship states that your lordship was not there interested in India, Now, my lord, apart from the effect here of having the witness say that he agrees with Chinese policy and then showing the witness a specific case where Chinese 20 policy may be violent, when one turns to page 15459 ther is, my lords, in our submission underlying the whole passage apparently an assumption that the accused are in some way tainted with the actions of the Russians and Chinese Governments. If your lordship would care to look 25 at line 4 on 15459: ( n Q) Is that your organisation's view? That is so," ( n Q) Would you say that that is the view of all the countries who struggle for world peace? That, my lords, is - the means do not justify the ends. I would not be 30
16730 able to say whether that is their view, my lord." ( M Q) If they do not, why should there be a difference? I said that is my view, and that is the view of the orgaisation." ( n Q) Assume that is not so, assume that there are countries for argument's sake who in the struggle for world peace are prepared to use force? My lords, it would be illogical to my mind for people to be prepared to wipe out a country for the very ends which they are trying to prevent." ( M Q) We have had evidence here of the occasion on which Russia was alleged to have sent an armed force into Hungary, Do you remember that? Would that be in accordance with your view of non-violent policy? I do not agree with that action, my lords." My lords, I turn to a passage at page 15492 and this is the last passage to which I shall refer, which again attacks the fundamental policy and appears, my lords, with great respect, to show that your lordship is joining with the Crown on the matter which is the quintessence of the case, whether Congress policy is one of violence or non-violence. At 15492, your lordship asked at the foot of the page : ("Q) Except that that would be the case of a father who says to a child 'You must never go and sit on the stove'«... this, my lords, refers to the type of speech 'You must be so disciplined that if you are ordered to murder, you must murder'. RUMPF? J: Just before that the witness had quoted that as an example. 'My lords, I would like to give the example of a father saying to a child "You must listen
16731 to me. If I tell you to go and sit on the stove you should do so." And following, the next sentence* MR. PISCHER? Yes, that is so, my lord. Your lordship took that up. RUMPFF J: Yes. MR. FISCHER: And your lordship says in line 4 "Surely that is a good analjgy because here you have an organisation which says that under no circumstances - violence; and discipline is demanded to such an extent - the speaker says 'If violence is ordered you must commit violence',? My lords, the policy that has always been explained to volunteers over and over again is that the strongest policy is non-violence. ("Q) Has it been explained over and over again, or has it been merely mentioned casually in a speech? You see,that is the difficulty that one has here in trying to reconcile the two. You have documents and speeches in which the phrase is used 'Yfe are a non-violent army. ' That is why I asked you this morning, has the ideology of non-violence - and its practical implication - has that been fully explained and if so, where? I may give you another example, we've had the evidence here that before the Defiance Campaign for Unjust Laws volunteers were carefully instructed as far as their duties were concerned. They were tested. They were not to commit violence under any circumstances? That is correct, 11 ("Q) Thereafter on the evidence before us- now I'm giving you my impression of the evidence - the use of the phrase 'We are non-violent' and no more," My lord, there really could be, in my submission, no clearer indication than your lordship's, that
your lordship at the very least had a grave distrust of any evidence which was given that the policy was nonviolent, and that that must have been clearly conveyed to the witness. It becomes clearer, my lords, with respect, in a passage which may even be erroneous, on the next page, 15494, line 5, where your lordship says this; Well, my lords, perhaps I had better read the previous answer first, from the foot of the previous page; 'My lords, part of the difficulty of the accused in this oase is that they did not write down their speeches for these meetings. They did not provide the shorthand writers to go from meeting to meeting to take down speeches, police took down the speeches that they wanted to, and the and in verymany cases it has been proved that what has been said has been left out, so it would be extremely difficult for me to say that at such and such ameeting I explained the policy'. Then your lordship said - ("Q) During the evidence of these witnesses there hasn't been a single suggestion from a witness, to a witness, that he had left out of the transcription a particular description of non-violence which was made by a particular speaker. Do you follow what I mean? I'm going back to the evidence that full instructions were given to the volunteers and they were called upon to defy. Pull instructions were given to those who participated... etc. On the other hand, when it comes to Western Areas no instruc tions whatever as to how they should resist - - that is the evidence so far - none whatever. As a matter of fact the resistance was left to each individual members of the
}6733 reconcile this?" Now, my lords, our submission is that that was not fair. Your lordships will bear with me for one moment. Your lordship will remember that a number of reporters, detectives, were cross examined on the constant manner in which the policy of non-violence Not all were cross examined on that basis. was preached. Responsible men were sought from various parts of the country and this was put to them and they agreed with it, A number of non- European detectives also agreed with this. So that in that sense it was put throughout the case. Your lordship will also bear in mind that at a distance of anything from four to eight years since the speech was mace it is quite impossible, unless notes are in existence, to put to any detective 'That on such and such an afternoon I, the speaker, explained what the policy of non-violence was', and perforce circumstances - the matter had to be put in the general way that it was put. Yet here with your lordship was suggesting/- the full force of your lordships' s authciicy thi.in fact it bad not been questioned at all. And that we say, my lord, was very unfair to the witness. My lord, I have only one or two remarks to make. RUMPFF J; The passages to which you have referred I think you rightly referred to as following under the answer of the witness 'That the policy was explained over and over again', at 493, and the suggestion thereafter that the documents and speeches - that is in the middle of the page - contained the phrases of a non-violent organisation. Then the question is "That is why I asked you this
16734 morning has the ideology of non-violence and its practical implications, has that been fully explained.and if so, where?" Now thereafter I think you just now referred to a passage taking the inference to be that I had come to the conclusion that the policy - - or I had given the impression that the policy was one of non-violence.. MR. FISCHER: One of violence, my lord. RUMPFF J: One of violence. Line 25 - "Thereafter, on the evidence - - " - - that is what you submitted? MR. FISCHER: Yes, my lord. RUMPFF J: That the impression created was? MR. FISCHER: That the impression created would have been that your lordship was doubting the policy of non-violence. In other words, my lord, it probably is not unfair for me to concede that your lordship was in fact here adopting the attitude that unless witnesses proved that it was non-violent, it must be assumed to be violent. RUMPFF J: Are you correct in putting it as widely as that, when this deals with the document and speeches? Not the policy as a whole. On the face of the record? MR. FISCHER: Well, my lord, the Crown case of course is documents and speeches. Those documents and speeches contain innumerable illustrations in the form of Presidential Addresses... RUMPFF J: Yes, well, if I may say so, that is put to the witness. There are phrases 'Yv T e are non-violent, a non-violent organisation. The topic discussed here, is that not, on the face of the record
16735 the particulars of non-violence in a certain instance? MR. FISCHER: Well, my lord, there are documents, I think, of Dr. Naicker's Self Discipline and Volunteers. There are documents which do give details. My lord, the real burden of my complaint is that your lordship would appear to give the impression that unless those details were supplied your lordship would aissume that the policy was violent, simply because it hadn't been put in greater detail. RUMPFF J: Yes. MR. FISCHER: My lords, I think the lists of the references are complete. I shall hand them in to your lordships. As we indicated, my lords, the Defence relies upon the 120 references. I assume my lords, that the application made on Friday for a special entry will remain as a separate RUMPFF J; application? Minus the last ground, minus the fifth ground? MR. FISCHER: As your lordship pleases. My lords, I'm sorry, I'm confused. There was an application on Friday in respect of questions put to Resha. That will stand, I assume, my lords? RUMPFF J: Yes, MR. FISCHER: There was one on Monday which will stand minus the fifth ground. RUMPFF J; Yes. MR. FISCHER: And this application, my lords, will be based on the effect of one or all of the 120 references, RUMPFF J: Yes. Now this list that you've given me comprises all the references?
r 16736 MR. FISCHER: All the references, my lord* in- 1 eluding those to which we have referred, RUMPFF J; Before yesterday? MR. FISCHER; These 120 references, my lord, are relied upon in the application for the special entry on the foregrounds - based on the foregrounds, and they are 5 relied upon in this application, and in this application we are in addition relying upon the passage referred to in the application while Resha was giving evidence, my lords. RUMPFF J: Yes. 10 MR. FISCHER: Then, my lords, one last submission I have to make. My lords, there are situations in which a Judge may deal entirely properly.. there are situations in respect of an application for a recusal in which a Judge may deal entirely properly with such an applica- 15 tion by an explanation of the facts. I think, my lord, of the case of Millin and Erleigh where a Judge recused himself when he discovered that he held shares in one of the companies involved. Hadthat allegation been incorrect, my lord, there would have been no difficulty in 20 the Judge explaining that he did not hold the shares, or that he held them as a nominee for someone else, and he would certainly not in those circumstances be expected to recuse himself. Our submission, my lords, is that in a case like 25 the present, it falls in a different category. Your lordship will realise that this is based on the rule that justice must be seen to be done, and your lordship's motives and objects in questioning the witnesses are not raised in this application at all; they are not in 30 1
16737 question at all. The only problem that arises is what effect the questioning created, or creates on the minds of the accused, and so the problem is whether the questions have created' an impression that justice may not be done. And if that have created such an impression, my lords, your lordship in our submission will grant the application and recuse himself. It would be quite intolerable, my lord, for your lordship to have to explain your lordships motives, which we have not questioned RUMPFF J: Well, the motives are irrelevant. MR. FISCHER; They are irrelevant. MR. DE VPS: My lords, may I crave the Court's Indulgence. Though not usual for the Crown to address remarks in a matter like this, in this particular instance my lords, with your lordships' permission, I wish to address very tersely the Court on the application just made. RUMPFF J: Should you do so? MR. DE VPS: Cn a matter arising from the applica tion, my lord, RUMPFF J; Well... MR. DE VPS: The Court as a whole, my lord, and not merely your lordship... RUMPFF J; This is an application directed to me. MR. DE VPS; I realise that, my lord, but arising from the application there is a matter which the Crown feels it is in duty bound to raise to the Court as such, RUMPFF J; Well, if you will mention the matter in order to enable us to ascertain what the matter is. MR. DE VPS: My lords, it deals with a section of the Defence in applying as it has done. The Crown
16738 very shortly, my lord, wishes to submit on the "basis of what has been done in Court here certain conclusions follow, certain results follow, and those conclusions I can be made... RUMPFF J: MR. DE VPS: Yes? Will your lordship permit me to elucidate the position? My lords, it is not customary, I know, for the Crown to say anything in normal applications of this sort, but in the present application the Crown wishes to be heard. The Crown recognises the importance of the right given to an accused to apply for the recusal of a judicial officer. That right should be given full protection as long as it is honestly and properly exercised; as long as it is honestly and properly exercised the Crown has nothing to say and the application is a matter for the consideration only of the judicial officer concerned. In the present case, however, my lords, the Crown unhesitatingly and on the authority, inter alia, of Rex vs. Silber, 1952 S,A, 2 - S.2.S.A,52 2 S.A - submits that the application is totally unjustifiable, improper and a contempt of Court, The applicant has made this application on futile and frivolous grounds;under the cloak of an application for recusal the applicant has indulged in a scandalous attack on the conduct of the Presiding judge, in a deliberate attempt to bring him and the Court over which he presides in public contempt, to intimidate him, and to interfere with the lawful process of the Court and the due course of justice. My lord, the Crown wishes to say that this disgraceful application representsa wilful insult in
. J 16739 its opinion, to the Presiding Judge and to this Court. 1 KENNEDY J: Mr. de Vos, is your application now one for committal of contempt by the Court, or by the Presiding Judge? MR. DE VPS: My lord... ^ KENNEDY J: Because the application, while it interests the other Judges naturally, is in no other way any concern of theirs. MR. DE VOS: My lord,,, KENNEDY J: Until my lord has given his reasons, or a decision, are we in any way right to hear this application? MR. DE VOS: My lord, the matter was raised in open Court; everything that happened happened in open Court, it has been put down on record. I submit it is a matter which this Court can consider - as to whether 15 contempt of Court has indeed, according to the submission of the Crown, been established in relation to what has happened here to-day, RUMPFF J: Mr, de Vos, whatever your views may 20 be, shouldn't you have waited the outcome of the application before the expression of your views? MR. DE VOS: My lord, in my submission, no. In my submission it was a duty which lay on the Crown to react. The Crown saw it in the position as it evolved in Court, That is all the Crown wishes to say, 25 my lord, BEKKER J: Well, do you suggest this application is male fide? MR. DE VOS: My lord, I go no further than what 30
16740 has been read out to your lordships. Male fide is not in issue... BEKKER J: It's a dishonest applicati«n? MR. DE VPS: My lords, no, it is totally unjustifiable, improper and a contempt of Court, A wilful insult to the Presiding Judge and to this Court, my lords. RUMPFF J: There again I have to ask you, shouldn't you have waited until the application has been dealt with by me before you expressed your views? MR. DE VPS: My lord, I submit no, I submit it was the duty of the Crown to express an opinion on what has happened in Court here up to this stage, MR. FISCHER: I have nothing to say, my lord, RUMPFF J: Mr. de Vos, I'm afraid I think that your remarks, if you had wanted to make them, should have awaited the issue of this application, the result of this application, and whatever you have said will not influence me in any way in arriving at my decision. MR. DE VPS: I assume that, my lord; I assume that undoubtedly there cannot be any other possibility, my lord. HUMPPF J: Mr. Fischer, is this all that you want to hand in? MR. FISCHER; That is all I wish to hand in, my lord, RUMPFF J; Yes. Now, I'm afraid your argument j been of necessity somewhat condensed, and particularly your references to the evidence has been condensed refer-
16741. ences, MR. FIS CHERs That is so, my lord. RUMPFF J: In certain instances only the questions were referred to, in order to save time, no doubt, MR. FISCHER: RUMPFF J: That is so, my lord. But it imposes on me the duty to study more oarefully the evidence which has been referred to... MR. FISCHER: I realised that, my lord, when I was torn between the two possibilities, - - RUMPFF J: I'm afraid that that may take some time. I also want to get the transcripts of the re«ord to get the full argument, and this Court would not have been able to sit in any event on Friday for other reasons. One day is far too little, so that I propose to adjourn till Monday next. MR. FISCHER: As jovoc lordship pleases, RUMPFF J: You have no objection to that, Mr, de Vos? MR. DE VPS: No, my lord. COURT ADJPURNED TILL MPNDA.Y 29/8/196P
16742. COURT RESUMES OF THE 29TH AUGUST, I960. APPEARANCES AS BEFORE. BY MR. JUSTICE RUMPFF ; In this case the Defence have a complaint. Their complaint is not that the Presiding Judge has put questions to the witnesses while the witnesses were giving evidence, it is of course always the right and sometimes the duty of a judicial officer to put questions to a witness. The Defence do not complain that the questions put to the witnesses were irrelevant, they do not say that the questions has no bearing on the issues before the Court. The complaint is that the Accused have now gained the impression, after five mpnths of Defence evidence, that they are not getting a fair trial. It is alleged &hat during this period of five months in which there were certain breaks, I at times put questions to the witnesses in a manner which infringed the fundamental rule that justice must be seen to be done. The complaint is based on one hundred and twenty-two passages in the recording, starting with the first witness who began his evidence on the 9th of March of this year and running up to the witness Ntsangani who have evidence recently. On the 31st of March when the effect of the Emergency Regulations were being discussed, Mr. Maisels, who then appeared for the Accused in Court said ; "It would be most undesirable in the ultimate interests of justice if this trial, and it has been stated before, that it is a trial which is to some extent at least a political trial, that this trial were to be conducted in an atmosphere of something lower than the legal traditions of impartial,
16743. and unhampered justice which this Court has always striven to maintain." When Mr. Maisels made this statement, a number of the passages complained of, about twenty, had already appeared in the record. The submission now by Mr. Fischer is that the cumulative effectof thnise passages and those that came after must be considered and relying on this rule that justice must be seen to be done, the Defence have asked me to recuse myself. A party to a case has of course the right at all times to ask the judicial officer trying his case to withdraw, if the party thinks that for some good reason the judicial officer should not try his case. It is a right whicji is always given full protection by the Courts. In Sotth Africa, applications for recusal are fortunately rarely made. Depending on the circumstances, an application of this nature may bring with it an attack on the impartiality or integrity of the Court. It is obvious therefore that a procedure of this nature is not lightly embarked upon. I regret to state that in my view the present application has been made without any grounds which could possibly support it. In my view the application has been made either without full considaration of the record of this case, or under a complete misconception of the rights and duties of a Judge. At the outset I want to deal briefly with the allegation that witnesses were frequently questioned by mse. The Defence case has run over a period of five months. The Accused 3onco gave evidence on six days, Luthuli on twenty-seven days, - most of them being half days - Helen Joseph on fourteen days, Cachalia on six days, Lollan on five days, Nkalipi on
16744. tjtree days and Mandela on eight days. The evidence of these witnesses is contained is about five thousand typed foolscap pages. The questions and answers to which the objection is made, cover about two hundred of the five thousand pages. In regard to frequency of questions, there is also the following analysis. In respect of Mandela who gave evidence over eight days, two passages are objected to; in respect of Nkalipi, his evidence running over thr^e days, three passages; Lollan, his evidence over five days, twenty passages; Cachalia evidence over six days, seven passages; Luthuli over twenty-seven days, twenty-nine passages; Conco, his evidence running over six days, fifteen passages, and Helen Joseph, fourteen days, forty-one passages. If in addition it be remembered that the Crown's case is based on between four and five thousand documents handed in and on evidence concerning about two hundred and eighty meetings, each meeting having from two to eight speeches, it becomes so evident in my view that relatively speaking few questions were aksed by me in the course of the case for the Defence. In r...gard to the manner of questioning which I am said to have followed, Counsel's contention can be summarised as follows. It is argued that I allowed myself to become involved in political debate, taking up an attitude hostile to that of the fitnesses, that I challenged the evidence of witnesses by putting propositions to the witness adverse to the Defence case, by following a planned scheme of cross-examination, and that I applied- pressure to witnesses by m^ans of a repetition of the same question; that on several occasions
16745. I had come to a conclusion on important issues of the case, that in most cases I adoptud or accepted the Grown attitude or the Crown line. Over the last few days I have read through the 122 passages on which the Defence rely. In ju^ing the effect of the questions on the vitness, on the other Accused or on any other reasonable person, the totality of the Crown evidence has to be considered, how the topic under discussion was dealt with by other witnesses, how the topic was introduced, the questions and answers preceding the passage relied on, the manner in which the witness appeared to answer the questions, and any new matter, if any, introduced into the ansvsris fay the witness which might have led to other questions. In all the passages relied on, the witnesses were asked to comment on Crown evidence, documents, his or her state of mind, on policy of organisations and on matters arising from the evidence the witness had already given. Having read the passages upon which the Defence rely, ther^ is no doubt in my mind that the criticism by Counsel, which I summarised above, is totally unfounded. I do not propose to deal with each of the 122 passages on which the Defence rely. I propose briefly to deal with a few examples. The first example appears in Volume 66, at page 140S? i'he witness had been asked questions by Mr. Adams, and had given evidence about the task of the volunteers and of the phrase used, "thd top brigade of the army of national liberation in this country". At page 14052, I posed the question s "Rumpff,J: Is it correct to r that in some countries the army of liberation has a military connotation? Yes, My Lord,
16746. I would say that it does have in countries where there is a militarised trouble, an armed conflict, but here we speak of a peaceful, non-violont army." The next question? "It has the same name? It has the same name, My Lord, but so has the Salvation Arqiy." If I may point out, the witness here introduced as it were to equate the two as far as the name is concerned, namely the "liberation army" and the "Salvation Army" to the extent that in many countries the two organisations had the same name. The next question is ; "Do you know of any country in which the Salvation Army is a military organisation? No, My Lords, I don't." "Or the Boy Scouts for that matter? No, My Lords,"the "The Salvation Army has a military title, but I think that is as far as its military aspect goes? Yes." Now this has been referred to as hostile cross-examination. In my view these questions cannot in any way be regarded as hostile cross-examination. Another example to which I would refer is to be found in Volume 68 of the record, at page 14524. The topic starts some pages before this, but particularly at page 14523, where the question is, what the Congress of Democrats envisaged when there would be a strike on a nation wide scale. In the middle of page 14523 the question is asked, "And in that case if there were ev^-r a strike on that scale and there were arrests on a large scale, did the Congress of Democrats envisage the possibility of violence occurring, resistance of arrest? No, My Lords, because that has not been in the policy of the Congress as a whole." The question is repeated, it
16747. is changed to - after the next answer - whether - "Was there a likelihood of it happening?" And the questions are continued. The question finally being repeated at 14525, "What do you envisage in that if I might call it final plan?", and then the answer is given. Now at page 14526, there is a reference to a question which followed the preceding questions, "I am asking these questions to see how your evidence about the fundamentals of your policy can be reconciled to the hard facts of life". Prior to that, at page 14524, the question has been, "Now in that atmosphere, having regard to the fact that the government of the day is as hard as a rock, and the Congress alliance is determined to carry on, what would the Congress of Democrats or you for that matter, what would you envisage might happen?". Later at page 14524 the question is repeated, "Assume that the position would be that the Congress alliance had reached that stage where it was determined to carry on with the nation wide strike, knowing that the government was adamant, realising also that the clash would be short", and then the question goes on. Now in my view, obviously, the references to the "hard facts of life" referred to the government's determination on the one hand and the Congress alliance's determination on the other hand. that is how the witness understood As I view the answers, it and everybody must have understood it in this context. Mr. Fischer argued that that phrase indicated that I aceepted - that I had accepted in fact that there could not be a change of heart without violence. In my view the meaning which he s eks to put on the phrase I used is completely wrong, and
16748. not justified by the context in which it appears. While arguing on the questions put by me on this occasion, Mr. Fischer ex parte held out the suggestion that my questions to the witness might have caused her to break down at the gaol that evening. I know of no breakdown of the witness on the evening of that day. What I do know, from the record, is that my questions were put to the witness in the morning after the short adjournment. After I put a series of questions, the Crown continued its cross-examination for ten pages, tohen the lunch adjournment took place. After lunch the Crown continued its cross-examination for the afternoon. The evidence comprises thirty-eight foolscap pages for that afternoon. The next day, the witness gave evidence as usual. How Counsel could suggest that my questions in the morning might have caused the witness to break down at the gaol that evening, I do not pretend to understand. The Defence relies on the cumulative effect of the passages ief rred to by the Defence, If that is so, each of the passages referred to must be deemed to have some element which contributes to the cumulative effect, although of course by itself every passages need not have given the alleged effect. In my view, a great number of passages seem to me to have been included for no reason whatever, unless they were added to make the total number of passages look more impressive. I shall deal with a few more passages. In Volume 67 there is a reference to a passages at page 14290. The witness Helen Joseph had been asked questions by Mr. Levy, and in reply to his J
16749. questions she dealt with various terms like "anticommunist", and "pro-communist". The question of Mr. Levy at page 14289 reads for instance, "Now are you aware that anti-communists, non-communists, Quakers, pacifists and others have taken part in the activities of the Peace Council". She gives her answer. Then there is a question by my Brother Bekker, "What anti-communists take part in it? Myself, My Lord". "And apart from yourself? Perhaps it would be correct to say non-communist, I don't know that I can dub people anti-communist. I was thinking in terms of non-communist". Then follow a few more questions by my Brother, and then there is the passage to which objection has been taken. The passage opens with be the question by me, "What would/the differencebetween and anti-communist and a non-communist? My Lord, I would say that the difference would be that an anti-communist would be a person perhaps who had openly expressed antagonism towards communism, and a non-communist would fall into a group of people, I imagine, who had expressed no sympathy but also no antagonism. It is difficult My Lords to define it..." and then follows the question by me - there may have been part of the question left out, by the words are ; "An open mind? An open mind, especially in the situation where the Communist Party no longer exists it is rather difficult to classify people. It is a long time ago, My Lord, since there was a Communist Party". The next question :: "You have in reply to the question said that these various classes of people have taken part in the activities of the Peace Council. Are there any anti-communists who are members
16750. of the Peace Council? My Lord, it is a very difficult question to answer. There are I imagine non-communists. I am finding difficulty with the anti-communists." Then there is the question by me, "I am using your own definition, those who are antagonistic towards communism? My Lords, I suppose the truth is that I haven't discussed this with members of the Peace Council, their attitudes. I don't think it was in my mind at that time." That is the passage which for some reason or other is regarded as tacit (?). Again another example in Volume 68 at page 15503. The witness Joseph had given evidence under crossexamination about books found in her possession and a number of questions had been put to her by the Prosecutor. Then at page 14502 she had discussed she is asked by the Prosecutor whether communist theory with any former members of the Communist Party. That was followed by a question on the books, it reads s "And never read anything from these books in your possession? No, My Lord, I acquired them and I had them in my possession for a very short time. They were taken by the police and I have actually never opened then." Then the Crown Prosecutor goes on asking questions, and then he says, "What do you say about the first one, Las Kapital, did you nover read that? I have already explained, My Lord, that I did not read it, I did not pay attention to it in my course because I had been advised, as were thu other students, that it was not essential. It was put to us that the theories of Karl Marx were difficult to understand and that really only those who particularly wished to study them could
do so. I kept the book on my shelf." The next question by the Prosecutor, "For what purpose did you acquire the other two books? My Lord, I felt that I would like to be a little better informed about communism, as I might about any theory, and so I acquired the books hoping that at some time I might find time to read a little bit, a little bit more, I am sorry, not just a little bit, read a little bit mor^ than I had been reading, My Lord, that was the extent of my interest, the opportunity I didn't have in the end." Then comes the passage to which an objection has been made, or which is included in the number of passages s "Rumpff,J? You say you didn't read either of the two books? I think I once read the first two chapters of Das Kapital, My Lord." Then follows the question s "But the other two books? No, My Lord." "You didn't read them? No, My Lord. I must confess there are several books on my shelves which I have acquired and have not yet read." It was argued that by these questions I challenged the witness on her evidence. In my view the short question asked by me, if one looks at the questions and answers, particularly the answers given before, was intended to get a short answer from the witness. There is another passage in Volume 68, part of a series of questions, at page 14512, where the series of questions is opened with a hypothetical case put to the witness by me. This series of questions was referred to as a very important passage in the whole of the evidence of this witness. I was referred to by Counsel as a systematic cross-examination, and it was submitted that it should have been done by the Crown. It was also said that the same question was repeated over and over again on these
16752. pages. I do not want to read the questions and answers over again, they have been referred to, have been read. In my view here, having regard to the witness 1 political views and principle, the rjcord shows that I wanted to have her opinion on whether the achievement of liberation to her was more important than the method of achievement. Well, if one studies the questions and answers, one will see that after about four questions, the answer is given, I then asked her about condemnation of violence and after again about seven questions, the answer is given. A study of the questioning by me on this occasion indicates that the witness does not give a simple answer, and in my view the record indicates that the witness was brought back patiently to the question. The manner in which this was done, in my view, cannot possibly be said to be crossexamination and in my view no reasonable person would have understood it in that sense. Another example is to be found in Volume 69, page 14792. Heru, while dealing with a document the witness is asked the question by my Brother Bekker as follows s "Just a minute, page 1029, what is the meaning of the last sentence there, line 20 'The challenge must either be suppressed by force or be echoed by the White citizens of South Africa'. Is that the change of heart? Yes it is, My Lord." x hen the next question, "Which you don't believe in? I don't believe in a voluntary, spontaneous change of heart, My Lords. I believe that the citizens of South African can be brought to the stage where they will echo the challenge." Now starts the passage which is included in the number of passages relied
16753. upon s "Rumpff,J.: I don't quite follow this change of heart. If it is not voluntary, then it is not really a change of heart, is it? change of heart indicates a voluntary change out of certain considerations? Yes." "But when there is pressure exercised and he changes his mind, could that really "be a change of heart? No, I suppose My Lord it is not." "I have used the expression because it is an expression which has been used a great deal in this case, change of heart, it really means a change of attitude, My Lord, more than a change of heart.? Yes." There ends the passage included in the number that I referred to. I just carry on a little further with the evidence. "Mr. Liebenberg s In your evidence in chief you said that a change of heart was something that you did not contemplate would take place? As far as the change of heart itself is concerned, yes, that is true, but xi I do not contemplate a change of attitude." "How do you suggest a change of attitude could take place if there was not a change of heart?" Then I intervened, and I say, "Well, now look, let us not get into phisiological problems of anatomy. Obviously the witness means that when a certain amount of pressure is brought to bear upon the electorate they may change their minds and adopt a different attitude". The answer of the witness, "May I just add, My Lord, that I don't exclude the possibility of individuals of course having a change of heart," ~.' "But as a whole, as an electorate? Yes." In my view the questiors put by me in this particular instance were fair and in my view it cannot possibly contribute to the effect alleged by the Defence.
16754. In volume 64, at page 13084 there is another example. The witness Luthuli was giving evidence, and he was under cross-examination "by Mr. Trengove. The question included a very shortquestion, and I propose to read some of the evidence that preceded the question. At page 13083 the question is put to the witness, "But you didn't accept the position that the White people approve of the force that the government would use to suppress the liberatory movement? My Lord, I thought that I did J say that there would be some element in the White population who would not necessarily agree, and I didn't want to exp 1 ound on that because I just confine myself, because I have already dealt with the question earlier." "But I am talking now of the large majority of the Whites, of the 'haves'? May I pray for guidance from the Court, My Lords in this respect, because in the large majority of the Whites I have already put the proposition, My Lord, that with pressure becoming stronger, they too might change their minds so that I just don't know exactly how to react to the question." "Your difficulty in reacting to the question is that the proposition that you now want to defend, that the Whites would change tieir minds, that that was not the belief that the African National Congress has spread amongst its peo]3e? My Lords, I am not defending it. As I have already said in my evidence, I am stating it as a proposition of our hopes. Whether it materialises, My Lord, is another question." "I am putting it to you that you know very well that you never entertained that hope? I don't accept that, My Lord, because we definitely entertained that hope". Then there is this intervention by me,
16755. "The point really I think is this. If you entertained the hope, did you spread that idea amongst the members of the A.N.C.? Yes, we did, My Lord.." and he gives particulars. That is another passage which is relied upon, andas it is deemed to be by the Defence. In my view it was a question which brought the witness back to a question which the Crown had put to the witness before. Then in Volume 61, at page 13104 there are two questions which form the passage referred to. The witness Luthuli had given evidence concerning a document or a speechin which according to the Crown, there was a measure oc contempt for the so-called liberal element amongst the While people, and the question was put on that basis to the witness. "Now Mr. Luthuli, that language, do you agree that it discloses a measure of contempt for the so-called liberal element amongst the White people? Yes, I do agree that the passage as read expresses a certain amount of contempt, but it would nrt be sufficient to end there.." and he gives a fairly long answer dealing with the position. Then the Crown interrupts him in his answer and says ; "I don't want to interrupt your answer, but my only point was that this speaker treat that type of liberal with contempt. Do you agree with that?" The witness goes on, "Let me maku my last point. I have already conceded that. Insofar as that is written, it is very contemptuous, but I wish to..." and then starts the passage to which I have been referred, a question by me, "Are you now trying to justify that? No, I am not trying to justify it". Next question, "Well, that was
16756. the only question, whether the speaker treated the type of liberal as described by that speaker with contempt. That was the question? I have already said that that is so." Here obviously if one looks at the question and answer given before, the - in which the witness had justified a particular statement, it is obviously - the question obviously was an attempt to bring the witness back to the question asked. Another example which the Crown considered of considerable importance, is - which the Defence considered of importance is to be found in Volume 63 at page 13445. The witness Luthuli had been cross-examined, and had given certain answers to the Crown. He was then asked by my Brother Bekker at page 13444 stated that you hoped that an industrial t "Now you action on that day would result in a lesser concentration of government forces in that area? That is correct, My Lord.2 "Now what Counsel for the drown wants to know is this, why did the A.N.C. or whoever it was who organised this campaign, why did they desire to have a lesser concentration of forces on that day? What is it they visualised? My Lord, I am expressing two points, namely one that they could visualise that the government might be persuaded or might halt,.." - I don't want to read the whole answer. Then he is put a question by the Crown, "So that the main purpose of the industrial action then would not really be to decrease the number of government forces going to the Western Areas, but would be merely to impress upon the government the seriousness of the situation, is that so? Both." Then comes thepassge
16757. which I have "been referred to s "By Mr. Justice Rumpff; Well, the difficulty is this Mr. Luthuli, Counsel asked you if the A.N.C. visualised the possibility of reduced government forces available for the removal by industrial action. Why did it think that a reduced government force would assist thepeople, the people who were about to be removed? My Lords, in this whole general picture J find it difficult, well..." the next question put to the witness, "The argument will simply be that if the A.N.C. wanted to reduce the forces of the government in the area concerned, they were expecting violent action and the smaller the government forces the less chance for government to score a success by violent action. the May I put this to you, have you got any other reason why the A.N.C. wanted the government forces to be reduced? Well, My Lord, I think that it is correct. I think that the observation of Your Lordship there would be correct". Then I say "No, I don't want to...? " and he answers, "No, no, I appreciate that." "I am saying that if you say you don't understand the question, then the Crown may leave it at that, and it may argue at a later stage that the only reason why the A.N.C. wanted a reduction in the forces was because it expected a violent and it didn't want the government forces to be clash, concentrated in that area. That will be the argument". And then he gives the answer. That is the passage which is being objected to. Here, with respect to the Defence argument, I was pointing out to the witness, reading these questions and the answers, I was pointing out to the witness that he should not leave a question because the Crown might base a certain argument on his answer, and I was inviting
16758. Mm to deal with the question in another way. And example of how an assumption is made for purposes of a question is to "be found in Volume 63 at page 13534. I do not propose to deal with the question and answer really, except to point out how an assumption may "be made when a question is put to a witness. I do not propose to deal with what went on before this, but the passage starts where I ask this question of the witness t "I just want to come back to the speech in which there was mention of the ten million and the sacrifice of the nine million. Having regard to the fact that the African National Congress point of view was always that the Africans did not want violence, weapons to commit violence with, in fact had no guns or what is your opinion in regard to this part of the speech allegedly made where it says that 'It is said that we are ten million...' and I think the speech goes on, 'The time has come that we have to sacrifice nine million.' Now drawing attention to the number of Europeans or Africans in this country and perhaps knowing the number of Europeans who have in fact - who in fact are armed through the forces, the police force and the army, what is your opinion about the possibility of this reference suggesting a mass violence against the Whites in the course of which nine million Africans wouldbe extinguished and the whole of the White population would be extinguished, leaving one million Africans in control of this country?" The answer is s "My Lords, as I have said - didn't I say I don 't like that expression at all because it could have very > bad implications in interpretation and the observation J which My Lordship makes could enter into people's minds,
16759. there is quite that possibility, I don't like it." "What I want to do is to draw attention to the assumption here that for purposes of the question, at page 13534 in line 27, having regard - this is part of my question, "Having regard to the fact that the African National Congress point of view was always that the Africans did not want violence.." Finally I want to refer briefly to- a short passage in Volume 72 of the record at page 15240 - at page 15241, that is the reference given on the list of passages. Heri_ the witness Cachalia was given - he has given evidence about Kliptown, cost of living, he was asked whether since 1947 the township of Kliptown had giroim into a large area with a settled Coloured population, and then there was the question, "Nov; has the security of the people in Kliptown in any way been disturbed in recent years? Yes, My Lord, it had seriously been effected by the Group Areas Act. The people had bought properties and put up homos, and although Kliptown has only recently been declared a European area..." "When was that? That was in 1956 or 1957." Then comes my question, "Is that the whole of Kliptown? Yes, the whole of Kliptown, but My Lords before a place is declared in any group it takes a number of y^ars while the investigations are going on, and I would say since round about 1951 people were not prepared to improve thoir buildings. Th^re was no new building going on, oven though there was overcrowding for fear of the declaration of the Group Areas." That question, "The whole of Kliptown", is also included in this list.
V 16760. Now apart from a consideration of the facts as I see them, it is necessary I think to refer briefly to the law in regard to the duties of a Judge. In tho case Read (?) and Portuin versus Williston N.O. and de Villiers N.O., 1926, Transvaal Provincial Division, it page 549, Krause J. held that the Court "In adjudicating upon the qualification of a Judge in a criminal produdui*o should consider all the circumstances of the case, and ascertain what impression they would create upon a reasonable citizen and in the eyes of the public. And if it should appear that the confidence in the impartial administration of justice would or might be shaken and in danger, and the integrity of the Court doubted, then the Court would be justified in holding that the Judge was not qualified. In so adjudicating, the Court should not meticulously examine the effect of each particular circumstance separately and individually, but should regard all the circumstances as a whole." At page 564 the learned Judge stated : "According to Roman Dutch Law, the principle of the prohibition is as stated, partly founded on public policy, he who acts as Judge must not be suspected. It is essential that the confidence of the public in the fairness of trails should be unshaken and above suspicion." It would appear therefore that the question I have to consider is mainly one of reasonable this. If the fear presently said to be entertained by the Accused is a reasnable fear, thon my duty is clear. Generally speaking it seems to iae that the reasonableness or otherwise of the fear must be assessed primarily in the light of a judicial officer's duties to probe into matters in order to arrive I.
Collection: 1956 Treason Trial Collection number: AD1812 PUBLISHER: Publisher:- Location:- 2011 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.