Chapter Seven—
Black Attitudes and Actions

Modernisation of the Union of South Africa did not lead to a relaxation of race domination but rather to an improvement in the techniques of control and greater sophistication in its justification. As the interdependence of black and white South Africans in a common economy increased, and as cultural differences between them diminished, so was the law used in ever greater measure to create statutory differentiation and to maintain black subordination. Thus industrialisation did not erode race distinction; on the contrary, it enabled segregation to be enforced with the powerful weapons of a modern state. The courts were an integral part of the State machine. While the higher courts from time to time delivered judgements which softened or delayed the impact of new segregatory measures, the lower courts continuously and on a massive scale punished breaches of established race-statutes.

White lawyers and judges have generally directed their attention to the occasional superior court judgements which have had great constitutional interest but little practical impact, whereas black litigants have generally been more concerned with the extensive number of inferior court cases which have had slender constitutional import but considerable practical effect.

To any litigant the character of neighbourhood law depends upon the kind of neighbourhood he inhabits. If he lives in a wealthy suburb and works in a thriving city centre, neighbourhood law signifies to him company flotations, property deals, tax avoidance, insurance claims, matrimonial disputes, embezzlement, motor offences and keeping black servants and employees under proper control. If he resides in a poverty-stricken compound or location, on the other hand, neighbourhood law denotes pass and tax raids, debtors' enquiries, and prosecutions for theft and violence. The legal profession has been overwhelmingly concerned with the welfare of the wealthy white litigant, and the bulk of legal literature has been devoted to examination of nuances of doctrine relevant to his disputes. To the half million Africans who go to prison each year, however, it matters little whether a new Chief Justice is liberal or segregationist, whether the courts rely

mainly on English or Roman-Dutch authorities, or even whether the law adopts an objective or a subjective approach to the question of criminal intent. Previous chapters have considered the incorporation of Africans into the legal order, judicial attitudes to race, and the extent to which the legal system has impinged on African life. It is now appropriate to investigate African attitudes towards the law and its administration.

Attitudes towards Lawyers

Was it proper that Africans should be legally represented in South African courts? This was one of the subsidiary questions investigated by the South African Native Affairs Commission, constituted by the British in 1903 to hear evidence and make recommendations on a unified 'native policy' for the sub-continent. Judging by their questions, most of the Commissioners were of the prima facie view that the answer was 'no', since lawyers appeared to be at best superfluous and at worst harmful to African litigants. Such a viewpoint was supported by a number of magistrates who testified that the true function of lawyers was misunderstood by Africans, whose respect for the administration was undermined by applications brought against the Government and further diminished by appeals noted against the judgement of magistrates. A police chief went further and urged that separate rules of evidence be created for Africans, so that they might be questioned more easily; he agreed fully with the suggestion from one of the Commissioners that the meaning of 'getting off' on a technicality was quite different for Europeans from what it was for Africans (Mavrogordato).

Some of the magistrates who gave evidence, however, insisted that lawyers were quite as useful in cases involving Africans as in any other cases, and almost without exception African witnesses spoke strongly in favour of retaining the right to be represented in court. One African witness went so far as to claim that every African boasted of his lawyer, while another said the African people would learn quickly enough how to make the best use of lawyers. If lawyers were so bad, he asked in effect, why did the whites use them? Questioned on whether or not the right to retain lawyers to advise them against the Government tended to teach Africans to be respectful towards authority, this last witness said that the lawyers would not advise them to bring actions against the Government if it were not the practice of the whites to do so in similar circumstances. Another witness repudiated the suggestion

that Africans were accustomed only to despotic forms of rule, and told the Commissioners: "You have had your Charles and your James, and knew how to deal with them—the same with the natives" (Jabavu). Finally, an African who had worked for a white attorney dispelled the idea that there was anything peculiar or mysterious about African attitudes towards lawyers. His evidence ran as follows:

Do the natives generally speaking like lawyers . . . ?—No, they do not like lawyers.

Do they not help them then . . . ?—It is a matter of necessity, going to the lawyers, but they do not like lawyers.

Why do they not like lawyers . . . ?—I do not suppose anyone in the world likes lawyers; lawyers are not liked on account of their fees (Umhalla).

The evidence of these and other witnesses indicated that Africans throughout South Africa had become accustomed to the use of lawyers, who, if they could not secure rights for them, could at least soften their disabilities. African witnesses complained about pass raids, curfews, rude policemen and unequal laws ("the law has only one eye"), but they did not disparage the use of lawyers. It might even be argued that the more unfavourably Africans felt towards the laws, the more well-disposed they were towards the lawyers. Racial statutes were so pervasive and the criminal law so extensive that lawyers came increasingly to occupy in relation to African society the position which doctors, moneylenders and priests occupied towards the poor of other lands. The word in everyday use amongst Africans in the Cape for lawyers was the unflattering 'igqwetha' , meaning 'perverter ' or 'twister', and traditionalist Africans expressed surprise that the whites who claimed to be upholders of the truth kept 'professional liars'. Yet if 'twisters' could save them from unjust (or even from just) punishments and appropriations, Africans were not averse to using them. For their part, if Africans paid their fees, lawyers were not averse to having them as clients. Many small firms of attorneys in various parts of the country began to develop lucrative practices on the basis of African clientele. Most of their work consisted of defending Africans charged with criminal offences, but they also handled civil claims, gave advice on a wide variety of matters, arranged for Africans to get permits and licences, and generally acted as intermediaries between Africans and the authorities. In more recent years the law compelling all motorists to take out compulsory third party insurance has made the humblest African pedestrian or cyclist a potential plaintiff for relatively substan-

tial claims, and as such welcome in the offices of even the largest and most respectable firms. There has in addition developed a small but active class of lawyers willing to act for reduced or no fees on behalf of African litigants, especially in cases where civil liberties have been directly in issue. Some of this latter group have earned great popularity amongst Africans, and have on occasion been chaired out of court. If for no other reason, they would have been enthusiastically accepted because of their willingness to subject policemen to vigorous cross-examination, since the court-room was the only place where it was possible to see policemen being hectored and even humiliated.

Attitudes towards Police

Policemen and police raids have long impinged deeply on the consciousness of Africans, particularly those living in the urban areas. A social anthropologist who in the 1930s collected dreams of Africans living in an eastern Cape town, reported that the motif which occurred most frequently was that of a police raid. Several times when going round the location for the purpose of interviews, she heard a warning cry which announced the impending arrival of the police, and saw women rush to empty or hide tins of beer, while other residents gathered in groups until the police went by. In her view the continual conflict between residents and authorities over petty matters meant that in serious affairs the police did not get the support of the law-abiding section of the population. In a more recent survey of a location in Cape Town, she and an African colleague made the point that in any society the attitude towards the police varied in a well-to-do suburb from that in a slum; what was peculiar about African locations was that all the 'decent people', including the middle class, were in conflict with the police in only slightly less a degree than were the town toughs (Wilson, Mafeje).

The police raid has also featured as a dominant theme in African autobiographical literature. The first African professor in South Africa, Professor Jabavu, complained sharply in the 1930s of what he called the unnecessarily coarse treatment handed out to arrested Africans by "ruffians who merit dismissal from their jobs". It was a dreadful experience, he wrote, for an African to be caught in the streets of town after curfew hour; an inebriated white could roam safely, but a respectable African was a target for any policeman. In his view the pass laws were similar to those which circumscribed movement during martial law at a time of belligerency, and "South Africa, so far as we aboriginals are

concerned, is a country perpetually in the throes of martial law from which there is no escape". Thirty years later the Professor's daughter described how her aged father pleaded with the police for the release of a cousin who had been arrested for being 'cheeky' after coming to their village to attend her brother's funeral; the Professor spoke abjectly to the sergeant, "appealing to the humanity we all know lurks behind those granite-hard, sun-tanned faces, behind those glittering blue eyes".

The writer Ezekiel Mphahlele wrote in his autobiography how after leaving a party given in a 'white' suburb to celebrate his receipt of an M.A. degree in literature, he was stopped on his way home by five different batches of policemen over a distance of fifteen miles, a ghastly reminder to him of motion pictures showing life in occupied countries during the war. His childhood in the 1930s had been dominated by the police—once he had been so terrified by the mere sight of a constable that he had hidden behind a bush—and in the 1950s he found that his children were in turn overwhelmed by their presence. His oldest boy always reminded him when he went shopping not to forget his pass; his middle son strutted around with imitation handcuffs, crudely made of wire, shouting: "Where's your pass, I'll teach you not to be naughty again"; whilst his four-year-old clung to him every time a policeman walked by and said: "Daddy, is the policeman going to arrest me, is he going to take you, is he going to take mamma?" Chief Luthuli also related in his autobiography how as a schoolboy he learnt to beware of the police. He stated that the white police were the section of the white community who had the most intimate and regular meeting with Africans; those who behaved with restraint he had applauded, but generally "they must assert and parade themselves, demanding this, ordering that and hurling abuse". For Africans "our country has been made into a vast series of displaced persons camps". He himself was gratuitously beaten by a policeman while in custody in 1960. Finally, he asked, could anyone who read in the press a routine announcement of a pass raid by police possibly imagine "the fear of the loud, rude bang on the door in the middle of the night, the bitter humiliation of an undignified search, the shame of husband and wife being huddled out of bed in front of their children and taken off to a police cell?"

The theme of the police raid figured prominently too in the autobiography of the writer Bloke Modisane, who as a child saw his mother insulted, sworn at and bundled into a police van so often that it began to seem to him part of their way of life. The hero image he had had of his

father was destroyed when a policeman demanded his father's pass. Location residents never knew whether a loud hammering on the door heralded the police or gangsters, nor of which group to be more afraid. He recalled a pre-dawn police raid conducted to check on residents' permits; the police burst into his home, shining a torch into the eyes of his wife and frightening his child. "When the police drove off . . . people emerged from out of the dark yards, out of the ruin of demolished houses, out of the dark alleys; they were dressed in scanty garments: blankets, bed-sheets, towels, table spreads, in almost anything which was handy at the rime of fleeing . . . from the processes of the law which required them to have a permit to live in the peace and security of their homes." The passes, officially called reference books, assumed such importance in the eyes of authority that they seemed to develop a life of their own. He suggested that marriage ceremonies could well be conducted as follows: "Do you, reference book no. 947067 take reference book 649707 as your lawfully documented wife?" Africans were expected to be eternal students at the school of good manners, he added, but the law was white, and in the location in which he lived heroism was measured by acts of defiance against the white man's law and order.

Brown and Black Lawyers in Action

i—
Passive Resistance—Advocate M. K. Gandhi

The first dark-skinned professional lawyer in South Africa was M. K. Gandhi, and the difficulties he encountered have already been referred to. Initially he was a strong believer in constitutionalism, the power of reason and the fairness of British rule, and this led him to adhere strictly to constitutionally acceptable forms of action, such as appearing in court on behalf of indentured labourers, drawing up petitions, organising public meetings and protesting through the press. Yet however persuasively he argued, the white colonists were always able to find a suitably phrased formula to oppose him, and in the end arguments were won on the basis not of pure reason, but on who had the ear of the Colonial Office. Thus the disfranchisement of Indian voters in Natal was effected by a measure which, purporting to be free of colour restrictions, allowed the vote only to those persons who had come from countries which had known Parliamentary institutions.

All the while, Gandhi was being prepared in a very personal manner for the kind of life style that was later to be associated with his name.

His abandonment of the splendid habits of a barrister in favour of the spare accoutrements of an ascetic was not precipitated by any sudden moral conversion. He adopted the philosophy of self-reliance partly because of the refusal of white barbers to cut his hair when he was due to go to court; he decided to renounce sexual pleasure and dedicate all his passion to public life after wandering in the hills of Zululand during the crushing of the Zulu 'rebellion'; and he vowed to refuse all food that gave pleasure to the palate after receiving the tasteless food given to black prisoners in South African jails.

If the first decade of his sojourn in South Africa was dominated by years of practice as a lawyer and months in the field as an ambulance-man, the second decade was devoted almost entirely to leading his people in campaigns of civil disobedience against the law. His loss of faith in the British Empire coincided with what he regarded as a betrayal of hopes after the British victory in the Anglo-Boer War. During the war he had frequently been at the battlefront, and had carried the son of the British Commander, Lord Roberts, from the field. The British tommies had been so friendly towards his ambulance corps that despite his feeling that the Boers were the victims of an unjust war, he looked forward to a British victory, inasmuch as it promised to usher in a new era of civil rights for brown South Africans. Instead he found that the British Army officers were harsher than the Boer officials had been. His disillusionment was complete when power was handed over in the Transvaal to an all-white legislature,which promptly reversed a court decision which had been favourable to Indians and imposed trade restrictions and pass laws on Indians (1907). Under Gandhi's leadership, the angry Indian population in the Transvaal refused to register for passes, whilst hundreds of traders defiantly plied their wares in areas forbidden to them. Thus South Africa, recently the birthplace of commandos and concentration camps, now became known as the birthplace of passive resistance, or, as Gandhi preferred to call it, satyagraha . (In fact the term passive resistance had been used previously in England in connection with educational struggles.) By the time the first campaign of passive resistance came to an end, more than 2,000 Indians had been imprisoned for periods of up to six months each, 700 for non-compliance with the registration laws and 1,300 for illegal trading. Many of those convicted of illegal trading were workers and professional men who deliberately pushed barrows to court arrest. One of the latter wasa Natal-born barrister and graduate of Cambridge who, according to Gandhi, left his law books, took up a basket of

vegetables, and was arrested as an unlicensed hawker. Gandhi now found himself placed in the dock, and he wrote later that it was an embarrassing experience standing as an accused in the very court where he had often appeared as counsel, but he considered that the former role was far more honourable than the latter, and willingly accepted his imprisonment. Later he was marched through the streets of Johannesburg wearing convict's clothes and carrying his bundle as any convict would.

Gandhi's principal individual antagonist at this time was Smuts, the brilliant lawyer, turned guerilla leader, turned politician. The Mahatma and the General were diametrically opposed to each other on many issues, but they also had much in common. Both were barristers trained in Britain, both belonged to communities aggrieved by British Imperial policy, both were activist politicians with a philosophical turn of mind, and both were noted for their simple habits and lack of personal ostentation. Yet whereas Gandhi was now entering a period of opposition to Empire, Smuts had just begun to follow the road of collaboration with the British, and whereas Gandhi was later to spend many years in prison for leading campaigns on behalf of a colonised majority, Smuts was to exercise power on behalf of a dominating minority. Gandhi is said to have spent some of his time during his first spell in prison fashioning a pair of sandals for his opponent Smuts, and Smuts is said to have remarked later that it was difficult to walk in the shoes of such a man. Yet at the time the two men were to indulge in bitter exchanges. Gandhi was brought from his prison cell to negotiate a settlement with Smuts; they were both lawyers and expert in the art of compromise, yet they did not keep notes of the agreement they arrived at, and each subsequently accused the other of dishonesty. The passive resistance campaign flicked to life once more, and the flames of civil disobedience spread to Natal. Indians in Natal were incensed by two issues: one, a poll tax recently imposed on them, and two, a Supreme Court decision that customary Indian marriages were legally invalid because they were potentially if not actually polygamous. A general strike of Indian workers was called, and Gandhi led 2,000 strikers and their families in an illegal march across the Natal-Transvaal border. A thousand of the marchers were sentenced to imprisonment, and Gandhi was ordered to spend a year in jail. The uproar that followed the killing of ten strikers by the army and police coincided with a simultaneous but unconnected threat of insurrection by white artisans on the Rand, and compelled Smuts once more to seek a negotiated settlement with Gandhi. Once again Gandhi was brought from his prison cell to

Smuts' office, and for a second time agreement between the two men was reached. Eventually legislation was passed which relieved Indians of the specific disabilities against which they had campaigned, but did not grant to Indians any further civic rights. Twenty years earlier Gandhi had arrived in South Africa as a well-mannered, elegantly attired and shy young barrister; now he departed as a lean, simply-dressed and resolute political campaigner. "The Saint has left our shores," Smuts observed, "I sincerely hope forever."

Gandhi did not in fact return to South Africa, though he continued to take a close interest in South African affairs. One of his sons remained behind, and took part in two further passive resistance campaigns after the Second World War. The first of these campaigns was launched at a time when Smuts and Gandhi were both elderly men at the height of their fame and approaching the end of their careers. Smuts had been Prime Minister of South Africa for a total of nearly fifteen years, and Gandhi was the elder statesman of newly independent India. The campaign of South African Indians against what they called Smuts' ghetto laws, focused international attention on South Africa, and led the Indian Government to charge in the United Nations that South Africa was ill-treating her citizens of Indian origin. Smuts had helped to draft the Charter of the United Nations, and now he suffered the indignity of finding his own Government amongst the first to be stigmatised for breach of its provisions. In this connection, however, he was not without honour in his own country, and he received strong backing from the two law journals published at the time. The then editor of the South African Law Journal , who was later to become a Judge of Appeal, noted the strange turn whereby the coloured races of the world could dictate to the European how to conduct his own white civilisation, and he rejected the charges of ill-treatment as being based simply on a refusal to give the Indians, who were mostly of the coolie class, political and social equality with the Europeans (Hall, 1949). Similarly, a senior government law adviser who was later to become Chief Justice used the columns of the Tydskrif to denounce the charges against South Africa, though he did so in more dignified language (Steyn, 1949). The major difference between the two articles was that whereas the former implied that the Indians were too poor to be entitled to have the franchise, the latter hinted that they were too rich to need it.

At this time there were very few Indian lawyers in practice in South Africa, but many of the younger supporters of the passive resistance

campaign were now becoming legally qualified, and in the 1950s a new generation of young and politically radical Indian lawyers emerged. By 1962 out of 26 Indian attorneys and four Indian advocates in the country, nearly half had been subjected to banning orders by the Government because of their support for joint campaigns by the Indian and African Congresses against apartheid. Later in the decade even stronger action was taken against them, and one Indian advocate was sentenced to several years imprisonment for illegal political activities, and two were struck off the roll for being on a list of former members of the Communist Party. Many of the others were able to establish successful practices, but nevertheless they still had to endure the kinds of social indignity suffered by Gandhi seventy years earlier. Thus the first Indian barrister to appear in the Appeal Court was commended by the judges for his eloquent pleading, but when the tea-break arrived he was refused the customary cup of tea offeredby the court staff to counsel, and when lunch-time came he was obliged to eat sandwiches in his motor car because there was no restaurant or hotel in Bloemfontein which would serve him (1959).

ii—
Active Resistance—Attorneys Mandela and Tambo

At the beginning of the twentieth century more than a hundred Africans were sent to Britain and the United States of America by various missions in South Africa to receive higher education. Most qualified as missionaries and teachers, but a few returned as lawyers and set up practice in South Africa. The pioneer of this latter group was Alfred Mangena (1879–1924) who after being called to the Bar in London, returned to the Cape and then decided to practise as an attorney in Johannesburg. At this stage a conference was being held to unify the Bars of the different parts of South Africa, and Mangena's arrival on the scene highlighted the conflicting racial attitudes of the Transvaal and Orange Free State Bars on the one hand, and the Cape Bar on the other. The northern advocates, whose delegates included Smuts and Hertzog, insisted that only white persons be allowed to join the proposed new union of advocates, whereas the Cape barristers, led by W. P. Schreiner, were determined to have no colour bar; in the end the conference broke down on the issue. The Transvaal Law Society, which represented attorneys in the Transvaal, followed the lead given by the Transvaal Bar, and when Mangena formally applied to the Supreme Court to be admitted to practise in the Transvaal, the Society opposed his application. The matter featured briefly in the Law Reports,

which stated that the applicant "possessed Ac statutory qualifications, but was a native"; the President of the Law Society declared in an affidavit that in the existing state of society in the Transvaal there was no possibility of a native finding work as an attorney among white people, and that the applicant would have to practise among the natives; that the policy of the Government was to discourage litigation among them and to encourage them to have their grievances settled by the native affairs department or by means of native courts: that it would not be in the interests of natives of the Transvaal to create among them a class of native practitioner, and that the Law Society would find it difficult to exercise discipline over him. The judge held, however, that the Court would not be justified in refusing the application merely because the applicant belonged to one of the native races, or because there was no precedent in the Transvaal, nor would the Court assume that the applicant was going to encourage litigation amongst natives or behave dishonourably.

A short while afterwards two more Africans set up practices as attorneys in Johannesburg, R. W. Msimang, who had qualified as a solicitor in Somerset, and P. K. Seme, who after a distinguished career at Columbia University had gone on to Oxford and been called to the Bar in London. Seme's academic distinctions made him a respected figure in the African community, but did not save him from indignities in the course of his work, such as having to walk up five flights of stairs to consult with counsel because he was forbidden to use the lift. Although Seme was to remain in practice for many decades, these early African lawyers became better known for their political activities than for their legal work. In particular they were remembered for having convened the first conference of the African National Congress (ANC) and for having drafted its constitution (1912).

For the next forty years very few Africans entered the legal profession. The obstacles were social, educational and economic—bursaries were available for African matriculants intending to work for Church bodies or for the Government, but not for those desirous of becoming self-employed, and especially not for those who might become political agitators. Probably the biggest single barrier was the unwillingness of white attorneys to take on Africans as articled clerks. One African managed to qualify as an advocate by means of a correspondence course, but he did not go into practice, and instead became a respected academic figure and Vice-President of the ANC (Professor Z. K. Mathews). Yet just as at the time of Union embarking on a legal career

had impelled young Africans into politics, so after the Second World War an interest in politics drove young Africans into law. Oliver Tambo and Nelson Mandela both discontinued their studies at Fort Hare University College after they had come into conflict with what they had regarded as excessively paternalistic authorities, and then served articles in Johannesburg with a view to becoming independent professional men. While in Johannesburg they met up with A. M. Lembede, who was articled to the now ageing and conservative Seme, and the three young men formed a new trio of ardent African nationalists determined to advance African claims. Lembede died at an early age, but Tambo and Mandela qualified as attorneys, set up in partnership, and became popular both as lawyers and as political leaders. They encouraged a friend and political colleague of theirs, Duma Nokwe, to study for the Bar, and in 1956 he became the first African to practise as an advocate in the Transvaal. At about this time the Government was using the provisions of the Bantu Education Act, 1953, to purge the ranks of African teachers of men who believed in equal rights, and a number of dismissed teachers thereupon qualified as lawyers. Yet the accretion of Africans to the legal profession was slow, and by 1962 there were only 13 African attorneys in practice in the whole country, and no advocates. Thus out of a total of approximately 3,000 attorneys in South Africa, only 44 were not white: 13 Africans, 26 Indians and 5 coloured persons. Africans constituted 70 per cent of the country's population but accounted for less than 0.3 per cent of the legal profession: their share of the £17 million income earned in that year by all attorneys amounted to only £15,000.

During the 1960s a number of African lawyers were imprisoned or placed under banning orders, while others slipped over the border into exile. Prominent amongst those who went into exile was Duma Nokwe, who during his few years at the Bar had been put on trial for treason, detained without charge, assaulted by a policeman (for which he was awarded damages), and prosecuted for carrying on the activities of the banned ANC. While some of his colleagues at the Bar had been friendly towards him, others had been hostile, such as the advocate who on being formally introduced to him looked at his outstretched hand and said: "No money today . . . out!" At the Supreme Court a special robing room had been set aside for him, in case, as he put it, he contaminated his white colleagues by donning his gown in front of them. Eventually he had gone over to full-time political work under cover of a dry-cleaning business, before finally leaving the country.

Yet despite the enforced departure of many African lawyers from practice, the 1960s saw a relatively rapid increase in the total number of Africans pursuing legal careers. By the beginning of 1969 the total was 44, two of whom were at the Bar; most of the attorneys were concentrated in Durban, Johannesburg and the Transkei. As far as the legal profession as a whole was concerned their numbers were tiny and their influence correspondingly small. Not a single African was in practice in the Orange Free State, not one in the Transvaal outside of Johannesburg, and not one in any of the tribal areas other than the Transkei. Those practising in the cities were faced with the threat of having to give up premises in the vicinity of the courts, and all were subject to the general restrictions imposed by law and practice on Africans. Nevertheless, they could hope to receive an income considerably greater than that available to all but the wealthiest Africans, and to have a relatively large measure of independencein their work.

For the few lawyers who chose the path of active collaboration with the Government, the rewards were even more substantial: Kaiser Matanzima became Chief Minister in the Transkei Parliament, and his brother George (no longer in practice after having been struck off the roll for irregularities) became Minister of Justice, while the Leader of the Opposition, K. Guzana, was also an attorney. Kaiser Matanzima expressed his enthusiasm for working with Pretoria in the following words:

Summarised, our policy in the Transkei embraces a wholehearted acceptance of the policy of separate development; gradual and evolutionary progress in the Transkei towards greater autonomy; a firm rejection of the policy of multi-racialism; the preservation and development of our father-land by all means at our disposal; the promotion of the welfare of our people in all fields of human endeavour; the preservation of our own traditional system of chieftainship; the establishment in the Transkei of a state founded on justice, law and order; and finally a policy of intimate friendship with our mother-country, the Republic of South Africa (TLAD 1965, 1, 120).

When a motion was moved in the Transkei Assembly that the Pretoria Government be asked to release political prisoners who had come from the Transkei, George Matanzima moved an amendment which expressed full appreciation towards the Pretoria Government "for taking suitable and timeous steps against communist infiltrations into South Africa and the saboteurs who have no respect for life and

property" (TLAD 1965, 2, 271). The man whose name cropped up most frequently in the debate on the above question was Nelson Mandela, and it is appropriate now to examine the history of the partnership of Mandela and Tambo to see how the attitudes of radical African lawyers towards the legal order were expressed, and with what consequences.

In the early 1950s Mandela and Tambo practised as attorneys in Johannesburg in a shabby office across the street from the magistrate's court. Theirs was the best known African legal partnership in the country, and they occupied premises in one of the few buildings in central Johannesburg where Africans were permitted as tenants. Tambo later described the scene as follows:

To reach our desks each morning Nelson and I ran the gauntlet of patient queues of people overflowing from the chairs in one waiting room into the corridors. . . . Weekly we interviewed the delegations of grizzled, weather-worn peasants from the countryside who came to tell us how many generations their families had worked a little piece of land from which they were now being ejected. . . . Our buff office files carried thousands of (similar) stories (from the towns) and if when we started our law partnership we had not been rebels against South African apartheid, our experiences in our offices would have remedied the deficiency. We had risen to professional status in the community, but every case in court, every visit to the prisons to interview clients, reminded us of the humiliation and suffering burning into our people.

Even in their years of apprenticeship they had been given constant reminders of their status as Africans. Mandela had been articled to a relatively liberal firm of attorneys, yet he had been given a special cup from which to drink his tea; one day a white typist had been so embarrassed at having been seen taking dictation from him, that she had given him a sixpence and asked him to fetch her some shampoo from the chemist.

When in 1952 the ANC and the South African Indian Congress launched a passive resistance movement, known as the Defiance of Unjust Laws Campaign, Mandela was named as Volunteer-in-Chief. It was he who wrote the code of discipline for the defiers, and when the campaign came to an end (more than 7,000 persons had been convicted of participation) he was one of the leaders given a nine months suspended prison sentence for promoting what the judge called 'statutory communism'. The Minister of Justice also imposed a series of banning

orders on him, and the Transvaal Law Society moved the Supreme Court to have him struck off the roll of attorneys. The Society's main argument was that any person who incited others to break the law was not a fit and proper person to act as an attorney, but the court vigorously rejected the application and declared that nothing had been placed before it which suggested in the slightest degree that Mandela had been guilty of conduct of a dishonest, disgraceful or dishonourable kind. ". . .In advocating the plan of action," the judges said, "the respondent was obviously motivated by a desire to serve his fellow non-Europeans."

The firm of Mandela and Tambo carried on in practice, but did so precariously. Permission for them to occupy premises in central Johannesburg was withdrawn, and they did their work under constant threat of eviction and prosecution. In December 1956 both partners were amongst the 156 persons of all races arrested and charged with High Treason.

South Africa has known many treason trials but the one brought against supporters of the ANC had the distinction of being both the longest and the least successful (1956–1961). Unlike the previous trials, this one was not a sequel to war, rebellion or insurrection. It was based on a document called the Freedom Charter which had been adopted at a public congress held in the presence of the police. Mandela and Tambo associated themselves with the demands of the Charter, which called for the creation of a non-racial democratic state assuring equal rights to all citizens. One section of the Charter declared that All Shall Be Equal Before The Law, and specified that no one should be condemned or restricted without fair trial; that the courts, the police and the army should be open to all and serve as the protectors of the people; that imprisonment should be for serious crimes and be aimed at re-education not vengeance; and that all discriminatory laws should be repealed. The prosecution case in essence was that these goals could be achieved only by violence, which was implicit in the ideology of all the accused and explicit in the language of some of them.

The legal profession was well represented amongst the accused, who included four African and two Indian attorneys, and one African and two white advocates. One of the advocates conducted his own defence, and was allowed to sit with defence counsel (Slovo), while another spent his time in the dock writing a book about the trial, which was published well before the trial was over (Forman, 1957). A composite photograph of all the accused appeared on the cover of the book, and

standing out as certainly the tallest and possibly the most independent-looking of all the accused was Mandela.

Tambo later described Mandela as passionate, emotional, sensitive and quickly stung to bitterness and retaliation by insult of patronage. "He has a natural air of authority. He cannot help magnetising a crowd: he is commanding with a tall handsome bearing; trusts and is trusted by the youth, for their impatience reflects his own, appealing to the women. . . . He is the born mass leader."

During the early part of the trial, Mandela took little or no part in the proceedings other than to sit in the dock and listen to the evidence. A number of leading Johannesburg counsel handled the defence at reduced fees, and a special Treason Trial Defence Fund was established under the auspices of liberal clergymen, Members of Parliament and trade unionists; eventually the Fund raised more than £ 200,000, much of it from abroad. A vigorous opening address by one of the country's leading criminal lawyers ended with the assertion that the case was "a political plot of the type which characterised the period of the Inquisition and the Reichstag Fire Trial" (Berrangé).

The trial dragged on for four and a half years, causing great personal inconvenience to the accused, but also giving them the opportunity during adjournments to plan further campaigns of the kind which had brought them to the dock. During the trial, some of the accused became parents, some died and some got married; on one day Oliver Tambo and two other of the accused were respectively wed, causing advocate Forman, accused number 83, to write that "never in the history of South Africa have so many people accused of high treason gathered together to celebrate the wedding of so many people accused of high treason".

The bulk of the prosecution evidence consisted of documents found at the homes of the accused and transcripts of speeches made by the accused. Compared with the grim trials that were to take place in the 1960s, the Treason Trial frequently assumed the character of farce, particularly when detective witnesses were tested on their capacity for taking accurate notes in longhand. One detective admitted that he had been unable to understand the language used by the speakers at a meeting allegedly part of the treasonable conspiracy, but added that the chairman had provided him with a special interpreter. His cross-examination proceeded as follows:

Counsel: Do you hold your notebook in one hand? — Yes.
Do you hold your pencil in the other hand? — Yes.

Then where do you keep your pen? — In my mouth.
There are two different colours of ink in your notes? —
Yes, I can manage with two pens in my mouth.
Do you always carry your pens in your mouth?

Magistrate: Well, his mouth is big enough.

In the case of another detective witness the entire cross-examination occupied three lines:

When you go to meetings, do you go with the object of seeing if any offences are committed? — I don't understand.

No further questions. I just want the court to appreciate how much you do understand.

On one occasion the court adjourned early in order to enable the accused, who were out on bail, to take part in a street collection on behalf of the Treason Trial Defence Fund.

Until 1960 the accused played an entirely passive role in the proceedings. A number of them were discharged at the end of the preparatory examination, whilst the others were split up into three groups, only one of which was actually brought before the Supreme Court. Mandela belonged to this latter group, but Tambo did not and was able to carry on with his legal work. It was at this time that apartheid notices were being put up in court-rooms throughout the country, and in Johannesburg a magistrate ordered Tambo to take his seat at a table reserved for non-white lawyers. Tambo tried to argue from the table he had always used, that the magistrate's direction lacked lawful authority, and after a prolonged dispute involving several appearances in court first by Tambo and then by a clerk from his office, the clerk was fined for contempt of court, on the ground that he had refused to argue the invalidity of the magistrate's order from the separate table. The finding of the Appeal Court, namely that the accused would be as well seated at the one table as at the other was therefore in contempt of the magistrate, has already been dealt with (Chapter Five).

Graver issues than this, however, were to bring Tambo's legal career to an end. During the crisis which followed the shootings at Sharpeville early in 1960, Tambo was sent out of South Africa to campaign for the ANC abroad. Mandela, on the other hand, was one of thousands of persons placed in preventive detention under special emergency regulations; the Treason Trial continued, but under difficult circumstances, and eventually the accused decided by way of protest to dispense with counsel and conduct their own defence. Mandela had already emerged as the leading personality amongst the accused. He

voiced their protests in prison and in court, and now he and his coaccused Duma Nokwe formally took over the running of the defence, their task being facilitated by the fact that after four years in the dock all the accused were thoroughly familiar with court-room styles and tactics. Several months later as the State of Emergency approached its end, counsel were re-engaged, and Mandela entered the witness box for the first time. His evidence and cross-examination lasted four days, during which he adamantly insisted that the ANC was committed to a policy of non-violence, even if it delayed the achievement of emancipation. One of his co-accused was so impressed by his demeanour in the witness box that as he stepped down to resume his seat in the dock, she wished to applaud, and wondered what the judges had made of what she called "this outstanding leader of the African people" (Helen Joseph, accused no. 2).

The Treason Trial eventually came to an end in 1961 when the three judges hearing the matter cut short argument by defence counsel and gave their verdict. They agreed unanimously that all the organisations charged in the indictment had worked together to replace the existing form of State with a radically different one based on the Freedom Charter. The prosecution had not proved, however, that such a State would be a communist one or that the accused had propagated the communist doctrine of violent revolution, and the court found it impossible to come to the conclusion that the ANC's policy was to overthrow the State by violence. The accused were accordingly found not guilty, and in great triumph they chaired their counsel to crowds of supporters waiting in the streets outside; they might have claimed that if their trial had borne any resemblance to the Reichstag Fire Trial, then it had been like that trial without even a Fire. The prosecution had been based on the assumption that campaigns for democracy in South Africa could only succeed by means of violence. The implications of such an approach were serious, but few of the accused seemed to have considered themselves in real jeopardy. If, however, the trial at times took on the aspect of farce, it can be argued that the legislative postscript was to rewrite the farce as tragedy.

The trial was concluded at a time of considerable political tension in the country. The ANC and a breakaway group led by Robert Sobukwe called the Pan-Africanist Congress (PAC) had both been banned after the shooting at Sharpeville in 1960, and later in that year the white electorate had decided by a narrow majority in a referendum that South Africa should become a republic. African leaders had protested

about the fact that the African people had not been consulted about South Africa's new constitution, and they were now proposing to hold a conference to state their attitude. Fortuitously the banning orders on Mandela expired at this time, and Mandela emerged as the main speaker at the conference, voicing its demand for a national convention to be held representative of all groups in South Africa, at which a new nonracial, democratic constitution could be worked out. Later he wrote to the Prime Minister in the same terms, but the letter was handed over to the police, and Mandela then called for a general stoppage of work to coincide with the formal declaration of a Republic. To avoid capture by the police, Mandela went underground, the first prominent African leader to do so in modern times. The strike was only partially successful, but Mandela stayed underground, flitting from one part of the country to the next and earning for himself the name of the Black Pimpernel. The panache he had once exhibited as a lawyer he now displayed as an outlaw, but eventually after eluding the police for seventeen months, during which time he managed to go abroad and meet leading statesmen in Africa and Europe, he was captured and put on trial for inciting Africans to strike and for leaving the country illegally.

The defence which Mandela put up at this trial involved the most comprehensive and widely reported critique of the administration of justice ever made in South Africa. Mandela was not the first black man to challenge the right of racially constituted courts to sit in judgement over him. Individuals had done so before, and leaders of the PAC had boldly challenged the jurisdiction of the courts at the time of Sharpeville in 1960. Thus Robert Sobukwe had refused to plead to the charge on the basis that he felt no moral obligation to obey laws made by a white minority, and he had stressed that in his view unjust laws could not be justly applied. Yet Mandela's experience as a lawyer enabled him to examine the whole question of the administration of justice in South Africa with particular thoroughness, and his words, which were of special relevance to the theme of this study, will be quoted from extensively.

For sixty years lawyers defending rebels in South African courts had accepted the right and duty of the State to prosecute alleged lawbreakers. Most defences had turned on questions of fact, with the accused either denying participation or else trying to minimise their role in activities that were admittedly illegal. Occasionally speeches in mitigation of sentence had alluded to political conditions in the country, and delicate suggestions had been made that autocratic be-

haviour on the part of certain officials had contributed towards rebellion. Some Afrikaner rebels in the Cape and Natal during the Anglo-Boer War had claimed that they were citizens of the Boer Republics and therefore entitled to be treated as prisoners of war, but the reports of trials during this period do not suggest that any attempt was made to challenge the overall legitimacy of the laws and the courts in the British Colonies. There had been over the years many unsuccessful challenges to martial law courts, but the authority of the ordinary courts had not been put in question. The defence, the prosecution and the judges had been at one in acknowledging the legitimacy of the ordinary legal system and the laws which it enforced. In juristic terms, the courts had held that they could not enquire into the legality of the authority which had constituted them. In political terms, conquered Afrikaners, defeated Africans and suppressed strikers had submitted to the jurisdiction of their victors.

Mandela began his defence by calling upon the magistrate to recuse himself on the grounds that he would not be able to ensure that Mandela had a fair trial. By means of this procedural device, Mandela threw into question the whole basis of law enforcement in South Africa. He stressed that from a personal point of view he held the magistrate in the highest regard, and apologised in advance for having to refer frequently to 'the white man' and 'the white people', because he detested racialism from any quarter, but was compelled to use this terminology because of the nature of the application. In essence he claimed that he feared he would not consider himself either legally or morally bound to obey laws made by a Parliament in which he had no representation.

From a technical point of view he based his application in the wellknown principle that not only must justice be done, it must be seen to be done, and that any fact which gave rise to a reasonable apprehension in the mind of the accused that a judicial officer was lacking in impartiality rendered it necessary for such judicial officer to withdraw from the trial. Mandela went well beyond the usual limits of such application by alleging a bias arising out of a general social situation rather than from anything particular to the magistrate. In jurisprudential terms, his argument used natural law propositions to challenge the whole positivist foundations of the South African legal system. It attacked the concept of legal autonomy whose supporters claimed that it was possible for unjust laws to be justly administered. From a political point of view the application documented as clearly as any contemporary

statement the transition of African nationalists from the politics of protest to the politics of revolution, since his challenge was directed not only at the political system in South Africa, but at the whole legal and administrative apparatus whereby it was maintained. Paradoxically, as an accused person in court, Mandela had a greater opportunity to articulate and get publicity for radical African demands than he had ever had whilst still unapprehended; this was the price the authorities had to pay for using the courts as an integral part of their system of social control.

His first proposition was that in a political trial involving a clash of the aspirations of the African people and those of the whites, it was wrong for whites to act as judges in their own cause, that is, for the aggrieved to sit in judgement over those against whom they had laid a charge. He conceded that an African in court enjoyed, on the surface, the same rights and privileges as a white person in that his trial would be governed by the same rules of procedure and evidence. Yet there was no real equality before the law. Africans had no right to participate in the making of the laws whereby they were governed, nor the right to get relief from the courts on the grounds that constitutional guarantees had been violated, nor the right to take part in the administration of justice. "The white man makes all the laws, he drags us before his courts and accuses us, and he sits in judgement over us. . . . I feel oppressed by the atmosphere of white domination that lurks all around in this court-room. . . . I have grave fears that this system of justice may enable the guilty to drag the innocent before the courts. It enables the unjust to prosecute and demand vengeance against the just." It was understandable, he said, that citizens who had the vote as well as direct representation in the country's leading bodies should be morally and legally bound by the laws governing the country; it should be equally understandable that Africans should adopt the attitude that they were neither morally nor legally bound to obey laws which they had not made, nor could they be expected to have confidence in courts which enforced such laws. He was aware that South African courts had often upheld the right of the African people to work for democratic change, and some judicial officers had openly criticised the policy which refused to recognise that all men were free and equal. He welcomed the existence of democratic values amongst some of the country's judges, but such honest and uprightmen were few and they had failed to convince the rest of the white population that white supremacy led to disaster. He added:

Even though now I happen to be tried by one whose opinion I hold in high esteem, I detest most violently the set-up that surrounds me here. It makes me feel that I am a black man in a white man's court. This should not be. I should feel perfectly at ease and at home with the assurance that I am being tried by a fellow South African who does not regard me as an inferior, entitled to a special kind of justice.

The court might say that he would be tried fairly and without fear or favour

. . . but broadly speaking Africans and whites in this country have no common standard of fairness. . . . Whatever the white man may say in his defence, his moral standards in this country must be judged by the extent to which he has condemned the vast majority of its inhabitants to serfdom and inferiority. We, on the other hand, regard the struggle against colour discrimination and for the pursuit of freedom and happiness as the highest aspiration of all men.

In conclusion, he declared that he made no threat when he said that unless these wrongs were remedied without delay "we might well find that even plain talk before the country's courts is too timid a method to draw the attention of the country to our political demands".

The magistrate interrupted Mandela a number of times, but did not prevent him from completing his statement. Not surprisingly, the magistrate rejected the recusal application and ordered that the trial proceed. (Mandela later brought another recusal application, alleging that the magistrate had been seen in a motor car in the company of two members of the Security Branch, who were assisting the prosecution, one of whom had given evidence. This application was also refused.) After evidence had been led for the prosecution, and Mandela had declined to go into the witness box, which would have been inconsistent with his challenge to the legitimacy of the proceedings, he was found guilty of both charges and asked if he had anything to say before sentence was passed on him.

Mandela was now presented with a second opportunity to address general remarks to the court. Unlike some American accused and their lawyers who recently (1969) deliberately broke established rules of etiquette in order to demonstrate their objections to the way justice was being administered, Mandela used recognised procedures to make his points and maintained normal court decorum throughout. Traditionally in South African practice a speech in mitigation of sentence related to the moral rather than the strictly legal aspects of the accused's

conduct. Whereas at the beginning of the trial Mandela had concentrated on giving his views on the role of the courts in a racially stratified society, now he dealt primarily with the history of African submission to and resistance against the dominant legal order.

He spoke first of how as a boy in a village in the Transkei he had listened to the elders of the tribe telling stories of the good old days before the arrival of the white man, when his people had lived peacefully under the democratic rule of the kings and their councillors. "We occupied the land, the forests, the rivers; we extracted the mineral wealth beneath the soil. . . . We set up and operated our own government, we controlled our own armies and we organised our own trade and commerce. The elders would tell tales of the wars fought by our ancestors in defence of the fatherland as well as the acts of valour performed by generals and soldiers during these epic days." Leaders of different tribes had been mentioned as the pride and glory of the entire African nation. The foundation of government in early African societies was that all men were free and equal, and there were no classes, no rich and poor, and no exploitation of man by man. The council which governed the affairs of the tribe was fully democratic; chief and subject, warrior and medicine man, all took part and endeavoured to influence its decisions, and no step of any importance could ever be taken by the tribe without reference to it. There was much in such a society that was primitive and insecure and that could never measure up to the demands of the present epoch, but it nevertheless contained the seeds of a revolutionary democracy in which no one would be held in servitude, and it provided inspiration to those who sought to create a new democratic South Africa.

Mandela next dealt with his legal and political career, and pointed out that although many officials had treated him and his partner courteously, others had been openly hostile and discriminatory. He and Tambo had also been aware that however well they pursued their careers, they could never become prosecutors, magistrates or judges, and would have to deal with officials whose attainments and competence were no higher than theirs but whose superior positions were maintained by white skins. He saw it as a duty not only to his people but to his profession and to justice to cry out against this discrimination. It was opposed to the basic attitude towards justice which formed part of legal training in South Africa.

The whole life of any thinking African, he claimed, drove him continuously to a conflict between his conscience on the one hand and the

law on the other. The ANC had for fifty years done everything possible to bring its demands to the attention of successive South African Governments. It had at all times sought peaceful solutions for the country's ills and problems. On the question of South Africa's new constitutional status, its members were neither monarchists nor believers in a Voortrekker type of republic, but were inspired by the idea of bringing into being a democratic republic where all South Africans would enjoy human rights without the slightest discrimination, where African and non-African would be able to live together in peace, sharing a common nationality and a common loyalty to the country.

The intention behind the strike he had called had been that it should go off peacefully. Nevertheless around the campaign an atmosphere of civil war and revolution had been created by the Government which sought "not to treat with us, but rather to present us as wild and dangerous revolutionaries intent on disorder and riot, incapable of being dealt with in any way save by mustering an overwhelming force against us. . . ." The Government had mobilised its armed forces and arrested African leaders, setting "the scene for violence by relying exclusively on violence with which to answer our people and their demands". The African people had learnt from bitter experience how demands forcefully made were always met by terror and massacre. Government violence could only do one thing and that was to breed counter-violence. "Already there are indications in this country that people, my people, Africans, are turning to deliberate acts of violence and of force against the Government, in order to persuade the Government in the only language which it shows by its behaviour it understands." By its conduct the Government demonstrated that it despised the process of representation and negotiation, and by its administration of the law it brought the law into contempt.

I do not believe, Your Worship, that this Court in inflicting penalties on me for the crimes for which I have been convicted, should be moved by the belief that penalties deter men from the course which they believe is right. . . . I am prepared to pay the penalty even though I know how bitter is the situation of an African in the prisons of this country. . . . To men, freedom in their own land is the pinnacle of their ambitions, from which nothing can turn men of conviction aside. . . . When my sentence has been completed I will still be moved, as men are always moved by their consciences . . . to take up again, as best I can, the struggle for the removal of those injustices until they are finally abolished once and for all. . . . I

have no doubt that posterity will pronounce that I was innocent and that the criminals who should have been brought before this Court are the members of the Verwoerd Government.

These defiant words expressed in a forensic setting the new determination of African nationalists to work outside of and in conflict with the established legal order to achieve their goals. They ushered in an era of sabotage, insurrectionary activity and guerilla warfare, on the one hand, met with progressive suspension of habeas corpus, largescale imprisonment and allegations of torture and brutality on the other. Mandela was sentenced to the maximum penalty allowed by the magistrate's jurisdiction, namely a total of five years imprisonment, and he was removed to Pretoria Central prison, where he was held in segregation and given mailbags to sew in his cell.

Fifteen months later Mandela was back in the dock in Pretoria, this time on trial before the Supreme Court for his life. In July 1963 a police raid on a secluded house in an outlying suburb of Johannesburg called Rivonia had led to the capture of a number of ANC leaders and supporters as well as the discovery of a series of highly incriminating documents. Some of these documents had been in Mandela's handwriting, while others had referred to him by name, and they had indicated that before his seizure by the police Mandela had played a leading role in organising sabotage and planning guerilla warfare.

When Mandela emerged from the cells below court as accused number one in what became known as the Rivonia Trial, people who had known him before as a dapper lawyer were shocked by his appearance. The wife of one of his co-accused wrote that his splendid figure seemed to have shrivelled; once noted for his elegant clothing, he now wore a khaki shirt, shorts and sandals of an African prisoner, and she wondered if fifteen months of sewing mailbags alone in his cell had reduced him from a proud and sophisticated man to the status of a 'boy' (Bernstein). Another of his co-accused, an attorney who was eventually acquitted, observed that Mandela appeared to have lost at least three stones, and was so frail as to be barely recognisable.

The leader of the prosecution team, well-known for his aggressive technique, described the trial as one of the most sensational ever held in South Africa (Yutar). The evidence established that all the accused, save for two who were found not guilty, had worked together in a clandestine manner and organised well over a hundred sabotage attacks against electricity pylons and other Government property. They had also sent abroad scores of young Africans to be trained for possible

guerilla warfare. It was proved that Mandela had been the leader of a special wing of the ANC established to spearhead armed struggle, and that during his visit abroad he had undergone a short course of military training in Algeria.

Less than three years after the collapse of the Treason Trial, the State was leading uncontroverted evidence about what it called an ANC plot to bring about a violent and hellish revolution in South Africa. Mandela who during the Treason Trial had vehemently denied any intention on the part of the ANC to use violence, was now describing the circumstances which had led him and others to change their policy and embark upon violent struggle. For most of the eleven men in the dock, the dominant issue at the trial was not whether they would be found guilty, but whether or not they would be sentenced to death. In other trials held during the period a number of ANC and PAC activists were sentenced to death and later hanged, usually for homicide committed in the course of insurrectionary engagements.

South African law enabled an accused person at the close of the prosecution case either to remain silent, or to give evidence under oath and subject to cross-examination, or else to make a statement from the dock. Mandela chose to make a statement from the dock, since, although it carried less weight in law than evidence given under oath, it permitted him to make a speech uninterrupted by questions and answers, and was consistent with his earlier refusal to acknowledge the jurisdiction of the court. He was the first witness called by the defence, and for five and a half hours he took advantage of the legal system which threatened to take away his life to address the world.

Most of what Mandela had to say was devoted to explaining the philosophy of the ANC and why after fifty years of strict adherence to non-violence it had now sponsored the formation of a body (The Spear of the Nation) dedicated to the violent overthrow of the regime.

Firstly, [he declared] we believed that as a result of Government policy, violence by the African people had become inevitable, and that unless responsible leadership was given to canalise and control the feelings of our people, there would be outbreaks of terrorism which would produce an intensity of bitterness between the races which is not produced even by war. Secondly, we felt that without violence there would be no way open to the African people to succeed in their struggle against the principle of white supremacy. All lawful modes of expressing opposition to this principle had been closed by legislation, and . . . we had either to accept a permanent

state of inferiority, or to defy the Government. . . . Only when the Government resorted to a show of force to crush opposition to its policies . . . did we decide to answer violence with violence.

Four forms of violence were possible: sabotage, guerilla warfare, terrorism and open revolution. Sabotage was agreed upon as the action which would involve the least risk to life, but preparations were also made to fight guerilla warfare should the need arise. "If war were inevitable, we wanted the fight to be conducted on terms most favourable to our people. . . . I started to make a study of the art of war and revolution and, whilst abroad, underwent a course in military training. If there was to be guerilla warfare, I wanted to be able to stand and fight with my people and to share the hazards of war with them."

The last portion of Mandela's statement was devoted to an attempt to refute the allegation that the ANC was being duped by communists who played upon imaginary grievances of the African people.

Our fight is against real and not imaginary hardships, or, to use the language of the State Prosecutor, "so-called hardships". Basically we fight against two features which are the hall-marks of African life in South Africa and which are entrenched by legislation. . . . These features are poverty and lack of dignity, and we do not need communists or so-called agitators to teach us about these things.

Our complaint is not that we are poor by comparison with people in other countries, but that we are poor by comparison with the white people in our own country and that we are prevented by legislation from altering this imbalance. . . . White supremacy implies black inferiority. Legislation designed to preserve white supremacy entrenches this notion. Menial tasks in South Africa are invariably performed by Africans. When anything has to be carried or cleaned, the white man will look round for an African to do it for him, whether the African is employed by him or not. Because of this sort of attitude, whites tend to regard Africans as a separate breed. They do not look upon them as people with families of their own . . . or realise that they have emotions . . . , that they want to carn enough money to support their families properly, to feed and clothe them and send them to school.

Above all we want equal political rights, because without them our disabilities will be permanent. I know this sounds revolutionary to the whites in this country, because the majority of voters will be Africans. This makes the white man fear democracy. But this fear cannot be allowed to stand in the way of the only solution which will guarantee racial harmony and freedom for all. . . . Political division

based on colour is entirely artificial and when it disappears so will domination of one group by another.

During my lifetime I have dedicated myself to the struggle of the African people . . . against racialism . . . I have cherished me ideal of a democratic and a free society. . . . It is an ideal which I hope to live for and achieve, but if needs be, it is an ideal for which I am prepared to die.

The trial lasted many months, and during lunch-breaks Mandela took long prison-style walks with one of his co-accused, who was an attorney, weighing up as one lawyer to another the pros and cons of whether or not the death sentence would be imposed.

The last day of the trial was noted with interest throughout the world, and the jury box in the court was crowded with diplomats from many lands. The trial had been debated in the United Nations, where there had been overwhelming support for the accused and criticism of the South African Government on the grounds that its policies constituted a denial of human rights and threat to peace in Africa. At least seven Governments, including that of the United Kingdom, were reported to have pressed the South African Government to exercise clemency. The South African authorities, on the other hand, insisted that the matter was entirely one of domestic jurisdiction and that the South African Judiciary was independent and would not be influenced by pressure either from foreign Governments or from its own. It claimed that the policy of separate development offered all groups in South Africa the opportunity for self-determination, and declared that the only threat to peace in southern Africa came from communists and others who interfered from outside and threatened the country with sabotage and terrorism.

The defence called only one witness in mitigation, the author Alan Paton. Although it was not usual for such a witness to be crossexamined, in this case the prosecutor, with the help of a police dossier, proceeded to 'unmask this gentleman', and a sharp exchange followed between the two men which raised the tension in court. In the final plea in mitigation, counsel for the defence stressed that South Africa had a tradition of treating treason and rebellion with relative leniency.

Supporters of the accused had gathered outside the court to hear the result, whilst police with guns and dogs waited in the vicinity to deal with possible demonstrators. The judge ordered the convicted accused to rise—six Africans, one Indian and one white—and briefly gave his reasons for sentence. He said that the function of the court, as

in any other country, was to enforce law and order and to enforce the laws of the state within which it functioned. The main crime of which the accused had been convicted was in essence one of high treason, but the State had decided not to charge the crime in that form. and accordingly he had decided not to impose the supreme penalty. The sentence in the case of all the accused would be one of imprisonment for life.

The accused were immediately taken to prison, where all were still being held in 1971. Mandela and six others were flown to Robben Island, historically the home of lepers and political prisoners, where along with approximately a thousand other persons convicted of security offences, they were subjected to the strict regime of maximum security prisoners. In terms of a statute passed in 1962 Mandela's name was placed on a list of persons whose statements may not be published or repeated in South Africa. To that extent he has been silenced, and his name no longer appears except in illegally produced literature, nor are his words ever publicly quoted. Later in the decade two persons close to Mandela were involved in important trials with a political background. The first was Bram Fischer, Q.C., who had been the leading counsel for the accused at the Rivonia Trial. Declaring that he could serve justice best by going underground, he changed his appearance and lived the life of an outlaw for nine months before being caught by the police. A grandson of a leading Boer statesman, son of a Judge-President, and himself a former leader of the Johannesburg Bar, Fischer was now brought as an accused person into the court where he had so frequently appeared as counsel. Eventually he too was sentenced to life imprisonment, and in 1971 he was still being held along with a number of other white persons convicted of security offences, in Pretoria Local Prison. Then in 1969 Mandela's wife, Mrs Winnie Mandela, was the principal accused in a trial of twenty-two persons charged with carrying on the activities of the illegal ANC. Both before and after her trial she was held for several months in solitary confinement and subjected to prolonged interrogation; her trial collapsed, and before she could leave the court-room she was re-detained by the police. This further detention following on her acquittal evoked considerable criticism from groups which had not previously taken a public stand on questions connected with the administration of justice in South Africa; students in various parts of the country mounted protest demonstration, and academic lawyers from a large number of universities voiced their disquiet. Eventually Mrs Mandela and most of her co-accused were put

on trial again, but the defence plea of autrefois acquit , that is, that they had already been acquitted on the charges, was successful, and they were freed.

Meanwhile outside South Africa, Mandela's former law partner Tambo was helping to build up a guerilla army on the lines which Mandela had contemplated before his capture. Tambo had once been described by Father Trevor Huddleston as a most devoted churchman whose life showed the Christian motive at its best; now he was devoting himself to the destruction of the State in which he had formerly worshipped, and attempting to overthrow by violent means the legal system through which he had once made his living. In 1967 he announced in a public statement that ANC guerillas had entered Rhodesia in alliance with guerillas from the Zimbabwe African People's Union, each marching south for the liberation of their respective countries. A short while afterwards the South African Government reported that special units of the South African police bad been sent to Rhodesia to combat the guerillas there, and other reports indicated that South African aircraft and armoured cars had proceeded to the battle zone.

The frontier wars were beginning again, but this time the combatants were equipped with modern weapons and inspired by modern ideologies. What was being fought over was no longer possession of land or cattle or water supplies, but who should rule in southern Africa. The struggle now had extensive international implications, with alliances being established between the white regimes on the one hand and the African nationalist guerillas on the other; the United Nations Organisation tended to lend its moral support to the latter. As acting-president of the ANC, Tambo frequently held up to the guerillas Mandela's example of total commitment, and issued a warning to the world that a racial war had begun in southern Africa which could escalate into an international confrontation of measureless dimensions.