Walking With Pride: Court Statements by ANC Cadres on Trial
20 March 1990
- Trial of Ebrahim Ismail Ebrahim, Mandla Maseko and Simon Dladla
- Trial of Jabu Masina, Neo Potsane, Ting-Ting Masango and Joseph Makhura
- Trial of Ashley Forbes and his Fourteen Co-Accused
- Trial of Mxolisi Petane
- Trial of Tony Yengeni and Thirteen Co-Accused
- Trial of Marion Sparg
- Trial of Mthetheleli Mncube and Mzondeleli Nondula
- The Question of Prisoner of War Status
After more than a quarter of a century behind Pretoria`s grey prison walls, South Africa`s leading patriots – Nelson Mandela, Walter Sisulu, Govan Mbeki, Raymond Mhlaba, Wilton Mkwayi, Ahmed Kathrada, Andrew Mlangeni and Elias Motsoaledi – have emerged more determined than ever to fight for a united, non-racial and democratic South Africa.
Their unconditional release was the result of years of selfless sacrifice by the people of South Africa fighting for peace, democracy and freedom for all, coupled with unstinting international solidarity campaigns, including the imposition of sanctions.
The statements included in this brief pamphlet, Walking with Pride, bear witness to the personal courage and boundless conviction with which ANC cadres have fought for the noble ideals enshrined in the Freedom Charter. They are people from all walks of life, from all sections of our community. They reflect the aspirations of millions of ordinary South Africans, many of whom have paid the ultimate price for the freedom of all South Africans.
At the time of going to press there are approximately eighty political prisoners still on Death Row. Over 3,000 political prisoners remain in apartheid jails.
These men and women epitomise the future South Africa we are striving for. The words of Jabu Masina, before sentence of death was passed on him and his colleagues, say it all:
`We know that this court may sentence us to death. If this happens, so be it. We love life, but we love our people and our country more. If we are hanged, our death will not be in vain. Those who come after us will undoubtedly complete our mission in life: to create a just and democratic South Africa which belongs to all who live in it, a South Africa in which the gallows will be placed in a museum to remind future generations how barbaric the perpetrators of the crime of apartheid were`.
TRIAL OF EBRAHIM ISMAIL EBRAHIM, MANDLA MASEKO AND SIMON DLADLA
Ebrahim Ismail Ebrahim, Mandla Maseko and Simon Dladla were convicted of treason in January, 1989. The trial was particularly infamous in that Ebrahim, an Indian passport-holder, was abducted from his home in Swaziland and taken – at gunpoint and in chains – to South Africa by his South African security force kidnappers.
All three men were subjected to savage torture. Despite the ANC giving evidence in London that the movement`s structure is such that the defendants could not have carried out the actions they were accused of, all three were nevertheless found guilty.
Maseko received a 2 3-year sentence, while Ebrahim and Dladla were sentenced to 20 and 12 years respectively.
EXTRACT FROM THE COURT STATEMENT OF EBRAHIM ISMAIL EBRAHIM
The ANC walks with pride among the many combinations of men and women which have, this century, through their labour, their sacrifices and their blood, liberated millions of people from colonialism, racial domination and fascism. Its reason for existence is to accomplish precisely these goals. For this, naturally, it has earned the loathing of all those who are fighting a rearguard action to defend colonialism, racial domination and fascism.
Standing in court as members of this organisation, we reiterate our commitment, as the ANC does, to the principle of peace, freedom and justice. We commit ourselves to a ceaseless struggle for the establishment of a fully democratic, non-racial and free and prosperous society in our country.
We stand firmly opposed to all forms of racial discrimination, national oppression and the exploitation of the wealth of our country for the benefit of a selected few.
I am classified by the South African racial laws as an Indian South African. My parents brought me up to be proud of my language and my culture. As a Muslim child, I was schooled in Islamic prayers and in the reading of the Holy Quran. As children we learnt of the struggles and the wars of jihad waged by the Holy Prophet of Islam against the oppressive and decadent social order of his time. We grew up listening to the call of the muezzin from the minaret five times a day, declaring to the world the universality of humankind.
We learnt something also of the non-violent passive resistance struggle led by Mahatma Gandhi at the turn of the century and directed against the racial laws of the Boer and British colonial administrations.
I joined the youth wing of the Indian Congress during the 1952 Defiance Campaign, and together with members of the ANC Youth League, actively participated in the daily tasks of the campaign. The Defiance Campaign was the largest non-violent political campaign conducted to date jointly by the ANC and the South African Indian Congress. Over 8 000 volunteers, under the leadership of our volunteer-in-chief, Comrade Nelson Mandela, defied discriminatory laws and courted imprisonment. The Nationalist government moved quickly to suppress the campaign by enacting draconian laws which made it impossible for us to continue the campaign.
I became a full member of the Natal Indian Congress and the chairman of its Greyville Branch. I also became a member of the Durban branch of the Congress of the People Committee which was set up to collect the demands of the people for inclusion in a people`s democratic document to be called the Freedom Charter. I actively participated in the organising of meetings and in the collection of the demands of the people from their homes and their places of work. I was elected a delegate to the Congress of the People held at Kliptown held on June 25 and 26, 1955. At this Congress, with some 3,000 delegates present – blacks and whites, workers and peasants, businessmen and intellectuals, youths and students, the young and the old, Christians, Hindus, Muslims and Jews – we discussed the clauses of the Charter and adopted it as a guide to a free, just and prosperous South Africa. At this historic gathering we swore to struggle until we ended all forms of oppression, until we ended the poverty and exploitation of our people.
It was the leadership of the ANC, acting on a proposal by the late Professor Z K Matthews, that initiated the nationwide Congress of the People. The subsequent adoption of the Freedom Charter by the National Conference of the ANC speaks volumes for the calibre and organisation and the statesmanship of its leaders.
No political party among the white ruling classes has ever since produced a programme of principles that matches the Freedom Charter in its non-racialism, in its democratic ideals. The government regarded our declaration for a free and peaceful South Africa as an act of high treason.
The second half of the fifties was a period of mass political protest. The racist government was eager to destroy this political activism among the people and got the opportunity when its police force opened fire on a peaceful, non-violent protest demonstration in Sharpeville on 21 March 1960, massacring 69 people and injuring over 180. They responded to the anger of the people, and of the international community by declaring a State of Emergency, detaining thousands of people and banning the ANC.
The choice facing the ANC in 1960 was whether to abandon the struggle for national independence and a democratic South Africa or to continue the struggle from an illegal, underground position.
Under the repressive nationalist regime it was impossible to continue struggling in the old non-violent manner. The government with the support of big capital in the country and with the backing of its imperialist allies was hell-bent on maintaining the cheap labour system of apartheid with all its human suffering.
A chapter closed in our history. We decided to fight rather than surrender. We decided to meet the repressive violence of the state with the revolutionary violence of the people. We have never been perpetrators of violence but rather the victims of violence. Our organisation correctly concluded that the total liberation of our country lay along the road of armed struggle. It was for this reason Umkhonto we Sizwe was established in 1961 by the ANC under the command of Comrade Nelson Rolihlahla Mandela.
It was in this climate, too, that I, with many others, joined Umkhonto we Sizwe, set up by the ANC as its military wing. Umkhonto we Sizwe carried out nationwide sabotage attacks on state structures and installations.
As Commander-in-Chief Comrade Mandela called on the people to join Umkhonto and warned that there was no easy road to freedom. To achieve liberation and justice we must be prepared to sacrifice our homes, our loved ones and even our own lives. That is why, in the short history of our armed struggle many freedom fighters have fallen to the guns of the apartheid state, thousands found themselves in apartheid prisons and thousands more were forced into exile, even there to be pursued and murdered, by the evil forces of apartheid. Many combatants were sent to the gallows.
I joined Umkhonto we Sizwe and became a member of the Natal Regional Command. Our organisation carried out nationwide sabotage attacks on state structures and installations. I was arrested in 1963, detained and tortured and finally tried and sentenced to 15 years` imprisonment. I did not consider myself morally guilty of the acts for which I was convicted, but I at least knew that the testimony of state witnesses was a true reflection of what had actually transpired.
I make this point for the limited purpose of demonstrating that the security police, at that stage, did not fabricate evidence in our trial.
As an oppressed nation, we could never regard our courts as places of justice in the moral sense of the word. We cannot divorce the courts from the apartheid structures for they are a product of an exclusively white racial parliament and are there to enforce laws enacted by this parliament no matter how morally offensive and odious these laws are to the oppressed. Can a basically unjust law be justly applied and can something morally wrong be made kosher just because it passes through a judicial process?
What is, however, shockingly unbelievable about this trial is that of the 3 secret witnesses who testified against me, secret witness XI said two material things that were partially true, i.e. that I was present at a meeting in Biro Triumph and at a meeting called by Mac Maharaj in Swaziland, but the other two witnesses totally fabricated the evidence against me.
Why so much evidence was fabricated by the police is difficult to comprehend. It was probably meant to justify my abduction from Swaziland and the subsequent torture in the police cells. For one thing, even without these fabrications the court would have had no problems in coming to certain conclusions.
I served the whole of my 15 years` imprisonment without a day`s remission in Robben Island Prison. For 15 years I was not permitted to see a Muslim religious worker and was not even allowed a copy of the Holy Quran. If the prison authorities intended to break the backbone of political prisoners, it has in reality achieved the exact opposite. I was released from prison in 1979 only to be banned and heavily restricted. I was prevented from entering any work place or seeking employment in a factory or in a place of education. I was under constant police harassment and found it difficult to live a normal life. In 1980I left South Africa illegally and went into exile. Abroad, I was once again welcomed into the ranks of the ANC and continued to serve my organisation and my people.
The establishment of the ANC marked the first political formation of the African people to challenge their colonial status, and, therefore, the legitimacy of the South African racist state at its formation and throughout the ensuing decades. The racist state had no legitimacy then and has less legitimacy today.
Our struggle arises from the very nature of the South African society and places on us an inherent right and duty to overthrow this system of usurpation and racial tyranny. We could not have taken any other road. Our method of struggle has always been determined by the scope created by the ruling government of the country. We have always regarded ourselves as an intrinsic part of the world-wide anti-colonial and anti-imperialistic movement. This history of our organisation has, therefore, closely followed the pattern of the anti-colonial struggles in other parts of the world.
Decades of peaceful, non-violent struggle earned us the contempt of the ruling classes. The apartheid regime decreed that to resist oppression in any way was illegal. We are in the same situation today. Our country has become a land of political trials and mass detentions without trial. Detainees are brutally tortured and some even die in the police cells. Kidnappings, assassinations and attacks on democratic organisations by secret death squads are becoming common occurrences. Our press is gagged and our gallows are full. The State of Emergency has criminalised all peaceful political struggle, leaving the oppressed people with little alternative but to pursue less peaceful methods of struggle.
The current level of repression, with its vicious State of Emergency, is unprecedented in the history of our country. Never before have so many people, even children, been detained without trial for so long a period. The state has brought everything out of its repressive arsenal to subjugate a people no longer prepared to be subjugated.
A dark cloud looms over South Africa, when even legal organisations are criminalised for treason and terrorism. The thousands who are in prison today have never carried arms. It is mulish thinking that heightened repression could create peace and an oppressive stability in South Africa. It is the level of repression that leads to the escalation of revolutionary violence.
History is, therefore, repeating itself because we faced a similar situation in 1961 when, because the Pretoria regime had blocked all avenues for peaceful struggle, we were forced to take up arms …
Before passing sentence, I request the court to take certain factors into consideration. I was kidnapped from a foreign state by the South African security forces. At that point, I was carrying an Indian passport, issued to me by the government of India.
The lack of any judicial restraint has given the security forces of apartheid a free hand to continue their abductions with impunity. The violation of the borders of a neighbouring state, of its independence and sovereignty, is itself a great offence against international law and has in the past resulted in countries going to war. Kidnapping people and forcibly bringing them across the border fences in South Africa is an act of state terrorism.
We in the ANC never advocated a policy of murdering or abducting South African government personnel abroad. Yet it is now an accepted policy of the South African security forces to assassinate and abduct the opponents of the apartheid regime in foreign lands. The situation becomes worse if legal sanctions are given to such acts.
My abduction was followed by police torture to the point where I nearly lost my mind. My two co-accused were also brutally tortured. It is horrifying to note how widespread these tortures are. The very system of detention without trial and without access to lawyers, family or anyone from the outside, creates the ideal conditions for the wicked mind to devise methods of human torture. I have had personal experience of this, both in 1963 and during the present detentions.
When complaining of torture we always face the problem in court that it is only our word against the testimony of police officers. Our experience, unfortunately, or our perception, if you like, is that the courts are always inclined to accept the testimony of police witnesses. It is only in civil matters that such atrocities are exposed. Are we then not entitled to question whether the courts are not giving the police a free hand to continue with their inhuman torture of political detainees?
The next point is a crime so grotesque that one is urged to shout about it a million times over. I hope somebody somewhere would be listening. Nearly all the evidence given against me by the secret state witnesses was sheer fabrication. I doubt this could happen in any civilised country in the world today. One conjures up stark and gruesome memories of the Nazi courts in Hitler`s Germany. The Nazis began with the Reichstag trial where evidence was falsified against the leader of the German Communist Party. They began with the Communists, then followed the turn of the Jews, the liberals and the anti-Nazi German opposition
Today the police are permitted to fabricate evidence against us, tomorrow it will surely be the turn of the white liberals, the Afrikaner intellectuals and the churchmen.
What gives the police the right or the perception that they could with such audacity subvert their judiciary for political purposes? Have the police concluded that the judiciary is subject to manipulation in such an outrageous manner? No state has the right, legal or moral, to fabricate evidence against an accused person. This crime is aggravated when it is done to achieve certain political goals. These witnesses could not have falsely testified without the active collusion of the security police.
What legal protection does a person have in this country when he is abducted from a foreign country, detained and tortured, his personal property plundered and evidence fabricated against him? The criminals are not even investigated, let alone brought to justice.
Justice J M Didcott recently addressing the Second Ernie Wentzel Memorial Lecture described this phenomenon as the lawlessness of the state. I wonder in the future whether freedom Fighters should bother to even stand trial. It is painful to say the least that testimony of secret witnesses of despicable character who would sell their own souls for a sixpence is preferred over the testimony of respected leaders of our people.
At the beginning of this trial, we said we were not guilty of what we were accused of, and have in the subsequent months insisted on our innocence.
Finding us guilty does not affect the substance of the fundamental issue under contention in this court. Though pronounced guilty, we shall continue to reaffirm and pronounce our innocence. This is simply because it is not we, but the cause we represent, that has been on trial in this court. Finding us guilty is merely a statement that the state considers the struggle for democracy, equality, justice, peace and a non-racial society to be morally and politically reprehensible requiring suppression by judicial and other means.
We would challenge and contest such a statement with all the means in our power. We are firmly convinced that racial tyranny and injustice, and the resort to weapons of war and other forms of force to maintain and defend a system based on these practices, are morally and politically reprehensible. For justice to be done, in the larger and more fundamental meaning of that word and concept, requires that this court addresses itself to the issue we have `Just stated.
To quote Professor D A Kotze, `In terms of the definition of structural violence, South Africa is regarded internationally as a structurally violent society. This is mainly the result of the fact that this is probably the only society on earth which legally enforces discrimination with all the connotations of inequality and injustices called forward by this term.`
In the courts of the people of the world, the apartheid system of national oppression, racial tyranny, injustice, repression and war have already been judged guilty, having solemnly and by a formal international convention been categorised as a crime against humanity. This is a crime worse than treason, sedition and criminal murder. We sit in this court because we dared to rise against this crime.
As black citizens of this country we are instructed by one experience. This is an experience of deliberate and systematic oppression, absolute despotism, degradation and denial of our very humanity. This experience obliges us to conclude that the regimes which have ruled our country for 40 years now have, as a matter of policy, based themselves outside the parameters of such human thought and activity as can be considered moral, humane and just. To throw off such governments, as we must surely try, is to stand on the side of morality, human decency and justice.
If we had remained passive, we would have contributed to the perpetuation of a system that is morally and politically offensive in the extreme. We are proud to be among the ranks of the revolutionary freedom fighters and honoured and inspired that the African National Congress counts us among its own.
The Freedom Charter is to us like a lodestar which beckons us to the goal of genuine emancipation and happiness of all our people, both black and white. If ever an opportunity arose for freedom and justice in our country to be brought about by peaceful means and for peace to be achieved by peaceful means, we should seize the opportunity with both hands. Genuine peace and freedom must recognise that if South Africa claims to be an independent state, it is one in which the majority of the people have never enjoyed independence. It must recognise the national liberation content of our struggle and aim at the restoration of usurped land and wealth, and an end to national humiliation in all its forms and an affirmation of the culture and personality of the rightless majority.
Our President, Comrade Oliver Tambo, has pointed out that we who have been victims of violence for centuries know its true meaning. Our own experience taught us to hate violence. Our cultures reject the notion of violence for its own sake. In addition, because we have been targets of colonial and racial violence for centuries, we understand fully the demeaning and painful misery that derives from the mass and systematic application of force. As a movement leading such people, we could not ourselves have inherited or otherwise allowed ourselves to acquire any notions about violence different from those of the people from whom we have come and whom we represent.
Accordingly, though we decided on armed struggle, at no point have we allowed ourselves to become slaves to violence, as our President has said. There is nothing in our philosophical outlook which binds us inevitably, and under all circumstances, to the use of revolutionary force to achieve our objectives. Our very being instructs us that if we could avoid its use, then we should.
We think the direct opposite applies to those who have grown up with and been nurtured on notions of racial superiority. We have said for any people to oppress another requires the use of violence. To use violence to maintain a system of racial domination requires that its users rationalise such use of violence to the point where it is seen as an admirable attribute among those who dominate and therefore have to use force daily against the dominated.
A future society will have to contend with the children of violence. People who are taught to wield a gun, a baton and the jackboot, will find it difficult to understand that the use of force to order human relations is not the inevitable condition of human existence.
As for now, we would like to warn our white compatriots who have permitted themselves to be inducted into a cabal of violence for the defence of the apartheid regime, that they will merely reap the fruits of their folly. The adherents of the cult of violence whose victims we are today, will tomorrow turn on white society to assert their right and predestination to determine what the whites themselves should think and do.
The pursuit of the goal of peace both within our country and internationally is fundamental to our whole outlook. It is precisely for this reason that this objective is stated in the Freedom Charter. We stand here to affirm without any apology that the ANC and the rest of the democratic movement of our country are an important and unchangeable component part of the world peace movement. We seek a peace in our country based on freedom and justice. These are the necessary conditions without which there can be no peace. Quiescence brought about by repression is not peace, but a mere lull before the storm, a false stillness behind which lurks a thunderous explosion.
We are certain that this court will decide to impose on us various sentences. Though we shall condemn it as a perpetuation of the system of injustice to which millions of our people are subject, we do not fear such an outcome. To fear it would only mean that, when we joined the struggle for emancipation of our people, we did not understand the nature of the enemy we had to confront.
But we know who it is that we and the rest of the freedom-loving people of our country have to fight to turn into reality the dream of a South Africa that shall belong to all the people, both black and white. We have brushed shoulders with the angels of death who guard the king and princes that occupy the apartheid throne. In their hands they carry the gun, the hangman`s noose and vile instruments of torture. We know that the throne they defend can only stand if it is surrounded by a moat of human suffering.
As we leave this building to go wherever this court decides, we wish to say to our people, we tried to carry out your behests. We did our best to live up to what you expected of us as members of the ANC. There are countless others like us who are prepared to sacrifice their very lives to achieve the noble goal of the emancipation of our country. We shall achieve victory soon!
When writing this statement I thought carefully as to what I should say. I felt it better for this court to know precisely how I honestly feel about the issues raised. To tell the truth no matter how unpleasant. It would be against my nature to tell the court something palatable in mitigation but which does not reflect the truth of my beliefs.
When I was detained both in 1963 and 1986 I refused to answer questions during interrogation. To me this was a matter of deeply-held principles. During this detention I told the police and the inspector of detainees that I would rather die in detention than betray the trust of a single person or organisation. When I acknowledged that certain items were removed from my house it was to establish the fact that I was indeed abducted by the South African security forces.
The factor that led me not to testify in this trial is that I would refuse to answer questions which would give information to the state security police. This in turn would prejudice my evidence before this court.
I have been actively involved in the struggle for liberation for over 36 years. I spent about half that period in prison. My life has been one of struggle for peace and natural justice, for a common humanity and a struggle against the greatest single evil of this century, the evil of racism. If I were to choose my life all over again I would follow the same path. I could never have remained indifferent to the poverty and suffering of our people.
I have a deep commitment for peace, freedom and prosperity for all my fellow human beings and have an equal distaste for injustice and oppression.
THE TRIAL OF JABU MASINA, NEO POTSANE, TING-TING MASANGO AND JOSEPH MAKHURA
Joseph Makhura The Pretoria regime sentenced Jabu Masina, Neo Potsane and Ting-Ting Masango to death, and Joseph Makhura to 25 years` imprisonment in May 1989. These heroic MK fighters refused to participate in the trial or to give evidence in mitigation. The men fearlessly declared that they were Umkhonto soldiers who did not recognise the civilian court.
The men demanded POW status in accordance with the relevant Geneva Protocols. At the time of going to press, Masina, Potsane and Masango were still held on Death Row.
The campaign to save their lives, as well as the lives of more than 70 patriots also awaiting execution, is most urgent.
MASINA, POTSANE, MAKHURU AND MASANGO HEROIC SOLDIERS OF UMKHONTO WE SIZWE
Jabu Masina, the first accused, read the following statement on behalf of the four:
It is important for this court and all South Africans to understand that the ANC and those that they represent turned to armed struggle as a last resort.
If anyone is aware of the true meaning of violence, it is the black peoples of Southern Africa. It is we who have been the victims of violence for centuries. Our own experience has taught us to hate violence, and it was to terminate the violence against our people, which is inherent in white minority domination, that the ANC was formed.
The Question of Armed Resistance
For almost fifty years, and particularly under the extreme provocation that came with the apartheid system in 1948, we resisted the natural urge to respond by resorting to armed struggle. For more than a decade we continued to proclaim and follow a policy of non-vioience in the face of unrelenting and mounting violence against our people. In recognition of this fact, the president-general of the ANC, the late Chief Albert Luthuli, was awarded the Nobel Peace Prize in 1960.
Our non-violent resistance to apartheid, however, proved fruitless. Instead, a massacre of scores of unarmed, peaceful and innocent men, women and children was committed in March 1960, immediately followed by the outlawing of our organisation and the arrest of every known leader.
Formation of Umkhonto
It should be noted that it was not until almost two years after being declared illegal that the ANC took recourse to armed struggle. The manifesto of Umkhonto we Sizwe, issued on 16 December 1961, in explaining why the victims of apartheid violence were embarking on armed struggle, stated:
`The government policy of force, repression and violence will no longer be met with non-violent resistance only. The choice is not ours; it has been made by the Nationalist government which has rejected every peaceful demand by the people for rights and freedom and answered every such demand with force and yet more force.
We of Umkhonto we Sizwe have always sought – as the liberation movement has sought – to achieve liberation without bloodshed and civil clash. We do still. We hope that our first actions will awaken everyone to a realisation of the disastrous situation to which the Nationalist policy is leading.
We hope that we will bring the government and its supporters to their senses before it is too late, so that both government and its policies can be changed before matters reach the desperate stage of civil war`.
No Choice but to Fight
Let it be remembered that the onslaught of Nazism ultimately left the people of Europe no choice but to fight. In the same way, the onslaught of apartheid has ultimately left its victims in South Africa with no choice but to fight.
In earlier times, the people of the United States resorted to armed struggle in the face of what they considered to be an unrelenting tyranny. Similarly, other peoples in the world have also resorted to armed struggle to secure their freedom and the independence of their countries. That is why the preamble to the Universal Declaration of Human Rights states: lit is essential if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
Apartheid: Source of the Conflict
If we were free of the inhuman system of apartheid in our country, if we lived as full and equal citizens, without discrimination, victimisation and persecution on grounds of the colour of our skin, if black and white lived together as fellow Africans in this, our common motherland, we would have no cause to take to arms.
And yet the conflict in our country, as elsewhere in the world, can be resolved peacefully. The ANC has never been opposed to negotiation. To say this is to say nothing that is new in the ANC.
In 1952 Nelson Mandela wrote to Malan asking for a round table conference to find a solution to the problems of South Africa. That invitation was ignored. When Strijdom was in power the same offer was made. It was again ignored. When Verwoerd was Prime Minister we asked for a national convention for all the people in South Africa to decide on their future. This, too, was ignored.
In this context, Chief Albert Lutuli declared:
`Who will deny that thirty years of my life have been spent knocking in vain, patiently, moderately and modestly at a closed and barred door? What have been the fruits of my many years of moderation? Has there been any reciprocal tolerance or moderation from the government? No! On the contrary, the past thirty years have seen a greater number of laws restricting our rights and progress until today we have reached a stage where we have almost no rights at all.`
It was only when all other forms of resistance were no longer open to us that we turned to armed struggle. it is essential to understand what prompted the ANC to undertake armed struggle in order to appreciate why we stand here in this court as combatants and soldiers of the African National Congress. We are not criminals; we are not murderers.
The Impact of 1976
I, myself, am a survivor of the Soweto revolt of 1976, where I suffered the trauma of seeing hundreds of innocent children and young people, including my own relatives and friends, drop dead from police gunfire. That event shocked us all into the realisation that the life of the black person has no value under apartheid, and will have none until the system is destroyed.
Indeed, the slaughter has continued and many more have been killed or hanged since 1976. The trauma of the Soweto killings has been with us ever since.
The actions which we undertook were not for private gain, nor prompted by revenge. These actions were taken by ourselves as soldiers in the army of the African National Congress, acting generally under instructions and orders from our leaders. We mention, however, that the Silverton explosion was entirely our own idea and that we were not acting under instructions from the ANC.
Our actions took place in an escalating war between those committed to apartheid and those who seek its eradication and the establishment of a society which is not based on racial superiority, divided by hatred and ruled by fear.
Since the victory over fascism in World War II, the right to self-determination of people has become recognised as a fundamental part of international law. The denial of this right to any people by any state, however powerful, is not permissible. The right to self-determination has been incorporated in many international law instruments, most significantly as Article I of both United Nations human rights convenants, adopted in 1966.
A people who are denied that right are entitled to struggle for its achievement. In 1970 a major declaration passed by consensus of all states in the United Nations clarified this:
`Every state has the duty to refrain from any forcible action which deprives people … of their right to self-determination and independence. In their actions against, and resistance to, such forcible action in pursuit of their exercise of the right to self-determination, such peoples are entitled to seek and receive support in accordance with the purposes and principles of the UN Charter`.
Freedom Charter: Aspirations of the People
The Freedom Charter expresses the prime motivation of the South African liberation movement and the aspirations of the majority of our people. It is no chance element that the first clause stating `the people shall govern` is a demand for self-determination.
It is no secret that realisation of this demand has been blocked by armoured vehicles and a SADF only too willing to use its firepower against South Africans in the townships and in the many other areas where the struggle for freedom is conducted. The regime does not offer peace. It has drowned all attempts to achieve peace in bloodshed, and this means suppression of the legitimate aspirations of our people – to live free of continued armed threats and attacks in a democratic country based on one person one vote.
Pretoria has no Moral or Legal Right to Rule
We, as soldiers of a people`s army, struggle against a state which continues to deny the people`s right to self-determination and which practices a policy of apartheid which has been characterised as an international crime.
The charge sheet refers to the ANC attacking the `state authority`. Who gave it that authority? We say that the present South African government has no authority, no moral or legal right, to rule over the people of this country. It is therefore our duty to bring this crime to an end, to remove this illegal state.
Prisoner of War Status
We are soldiers in a patriotic army, struggling to establish democracy and peace. We believe that we are prisoners of war and that we should be treated in accordance with international rules governing such status.
The state of war which exists in South Africa is a war of national liberation and self-determination on the basis of the Freedom Charter. We affirm that it is, as Article 1 of Protocol 1 of 1977 recognises, an armed conflict of the type in which peoples are fighting against `colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination`.
The reasons which compelled us to take up arms have not changed, but have indeed been exacerbated with each passing day. The present South African government has left us no choice but further to escalate our offensive. Despite numerous appeals for the release of our leaders, for discrimination to come to an end and for equality, we have been faced by successive states of emergency in which our people have been killed, wounded, tortured and detained in their thousands.
General Van Loggerenburg stated in Cape Town in the End Conscription Campaign trial, that South Africa was in a state of war. Such statements are confirmed by cross-border attacks into countries such as Angola, Botswana, Lesotho, Mozambique, Swaziland, Zambia and Zimbabwe.
These attacks, which have been carried out by South African Defence Force personnel, have resulted in the deaths of not only ANC members, but also of innocent nationals of these countries. These attacks received extensive coverage in the state media and in the South African commercial press.
ANC Signs Geneva Protocol
Despite the actions and attitudes of this regime, the ANC has sought to have the conflict now in progress regulated in conformity with the international laws of war, aimed at protecting civilian life and preventing barbarous conditions of combat and captivity.
In fact the National Executive Committee of the ANC has expressed concern at the recent spate of attacks which led to some civilian casualties. The stated policy of the ANC is that it respects the values underpinning the humane conduct of war.
It is for this reason that the ANC has solemnly undertaken to respect the Geneva Conventions and the additional protocols of 1977 in so far as they are applicable to the struggle waged by its combatants. The convention is one of the cornerstones of international humanitarian law.
The African National Congress has taken the serious step of making a solemn declaration at the headquarters of the International Committee of the Red Cross that they would abide by the Geneva Conventions and Protocol 1. The South African government has refused to sign these protocols. In doing so the ANC reiterates that for more than 75 years it has respected humanitarian principles in the struggle for freedom.
It is, however, important to note that the conflict in South Africa is of a violent and often arbitrary nature. There is a war going on in this country. The fact that the war has, in the main, been confined to the townships does not alter the fact that South Africa is involved in a war.
The Whole of South Africa Begins to Bleed
The South African government has repeatedly stated that it is involved in a war with the ANC and that it is fighting for its survival. But it is we, the oppressed people of South Africa, who are under attack and fighting for our survival.
In the result, hundreds of people have been killed. Massacres have been perpetrated against civilians at Mamelodi, Uitenhage, Queenstown, Winterveld and elsewhere. We are witnessing a situation that is beginning to spread beyond the townships. Indeed, we are beginning to see South Africans of all races going to bury their loved ones who have died in the course of resistance to apartheid – whites, Africans, Indians, coloureds; all are going to bury their dead.
The whole of South Africa is beginning to bleed and will continue to do so unless the apartheid system is destroyed and replaced by a democratic system of government.
ANC Policy: Civilians are not Targets
In the past, we have taken every precaution not to harm civilians. Thus targets such as power stations, strategic installations and military targets have been the subject of attention and elaborate steps were taken to ensure that no civilians were hurt.
We have stated that this remains our policy. However, as in any war situation, there may be instances where individual combatants are responsible for acts that go beyond policy and which cannot be condoned. It is an unfortunate and tragic fact of war that civilians fall victim to the violence. We are more concerned about civilian lives than our adversary, the apartheid government, whose soldiers, police and vigilantes, fighting under their control and direction, do not even pause to think: `How many children will be there?`
In the Second World War men, women and children were slaughtered in their tens of thousands in the cities of London, Coventry, Dresden and Hiroshima, to name but a few. In more recent times the Vietnam War, the conflict in Central America and the wars in the Middle East have all featured inordinate amounts of civilian deaths.
This has not been the case with the ANC. From the very beginning of our armed struggle, it has been part of the morality of the ANC that civilians should not be a target of attack. We reiterate that it is contrary to the policy of the ANC to select targets whose sole objective is to strike at civilians.
The Struggle Will Continue
We state here and now, as combatants in the army of the African National Congress, that this struggle will continue until all elements of apartheid have been eradicated and we have a society that is free, democratic and just. It is crucial for white people in South Africa to realise this truth: that it is not democracy that threatens their future. It is this government, determined to enforce its will by military power, which poses the threat to their very survival.
We call on all our people in South Africa, regardless of colour, to unite around the democratic perspectives for which so many people have already laid down their lives, and for which we are prepared to die.
The People Shall Govern!
We reaffirm that in the new South Africa the people, all of the people, shall govern. We shall together translate that fundamental democratic principle into the practice whereby each person shall be entitled to vote and to be voted into any elective organ in the new united, non-racial South Africa.
The new South Africa must reflect and enhance our oneness, breaking down the destructive idea and practice of defining our people by race, colour or ethnic group. The individual and equal rights of all South Africans, without regard to any racial category, shall be guaranteed.
Those rights must include freedoms such as those of association, speech, assembly, language, religion and the press, the inviolability of family life and freedom from arbitrary arrest and detention without trial. We who are fighting for a new South Africa believe all should be free to form and join any party of their choice, without let or hindrance. We reaffirm that democracy in our country cannot succeed if it permits the organised propagation of ideas of fascism, racialism and ethnicity.
Apartheid Must Go
History demands that the present system of government must go. Apartheid is the monstrous offspring of an immoral and criminal system which cannot be supported or tolerated. Your children are being used to kill for apartheid and your intellectuals misused to perpetuate the same system.
The wealth of the country, which both black and white create, is being used to keep a corrupt and undemocratic government in power. Why do you allow this to continue? The situation in our country is critical. There cannot be innocent bystanders.
Call to White South Africans
To whites in this country we stretch out our arms and call on you to help end the violence of apartheid. You have the power and the opportunity to contribute decisively to redress an historical injustice which has persisted for over three centuries.
We Love our People and our Country
We know that this court may sentence us to death. If this happens, so be it. We love life, but we love our people and our country more. If we are hanged, our death will not be in vain. Those who come after us will undoubtedly complete our mission in life: to create a just and democratic South Africa which belongs to all who live in it, a South Africa in which the gallows will be placed in a museum to remind future generations how barbaric the perpetrators of the crime of apartheid were. The struggle continues!
THE TRIAL OF ASHLEY FORBES AND HIS FOURTEEN CO-ACCUSED
Fifteen young people in the Western Cape, charged with terrorism, first appeared in court in November 1987. On December 14, 1988, fourteen were sentenced by the Cape Town Supreme Court.
Six of the defendants – Ashley Forbes (15-year sentence), Peter Jacobs and Nicklo Pedro (14 years each), Anwar Dramat (12 years), Nazeem Lowe and Clement Baadjies (10 years each) – were convicted on charges of MK activities.
Seven of the defendants were found guilty of providing assistance to them: David Fortuin, Jeremy Veary, Wayne Malgas and Ashraf Karriem all got two years, while Walter Rhoode, Colin Cairncross and Colin Petersen received suspended sentences. One defendant, Leon Scott, was convicted of promoting the aims of the ANC and also received a suspended sentence. Yasmina Pandy was acquitted, having already served a six-month sentence for contempt of court.
Ashley Forbes was a comrade of Ashley Kriel, an MK soldier who was summarily executed after being captured.
THE TRIAL OF THE CAPE TOWN FIFTEEN
Ashley Forbes and his 14 co-accused refused to plead in the Cape Town Supreme Court. This is the full text of Ashley`s statement to the court, supported by his 14 co-accused.
With due respect to Your lordship and the learned Assessors, I refuse to plead to the charges against me for certain reasons which I desire to place on record:
- The inherent political system of racial discrimination, i.e. apartheid, has prevented the majority of the people in South Africa from participating in the making of the laws which are now being enforced against me.
- The charges against me are that I allegedly committed acts to eradicate the apartheid system so that the majority of South Africans could participate in the making of this country`s laws.
- The international community, through the United Nations General Assembly and Security Council, has repeatedly condemned the apartheid system as a crime against humanity and has recognised the legitimacy of the struggle of the oppressed people of South Africa in pursuance of their human and political rights as set forth in the Charter of the United Nations and the Universal Declaration of Human Rights.
- The International Court of justice has ruled that racial discrimination is a breach of a country`s obligations to the international community and that apartheid is not in conformity with the international obligations assumed by South Africa under the Charter of the United Nations.
- Churches and leaders of the international and national religious community have decreed that apartheid is a heresy.
- Consequently, I find myself in conscience unable to plead to charges which label me as a terrorist for opposing apartheid and I regard the prosecution itself as a crime against humanity.
- I furthermore state that my basic human rights, as embodied in the United Nations Universal Declaration of Human Rights, have been violated in that:
- I was held in solitary confinement, without the right to legal representation, for many months under Section 29 of the Internal Security Act, which I found to be a vicious form of torture in itself.
- I, and others, have been tortured and/or coerced in many other ways to divulge information and evidence to the security police and police at large, information which will presumably be used against both myself and these other persons.
- Lastly, with all due respect to Your lordship, I foresee my trial being used by the state to deceive my fellow countrymen and the world at large into believing that the judiciary is independent and there is justice in South Africa.
I believe that unjust laws cannot, by definition, be justly applied. Therefore I do not believe that these proceedings can be just, or that the judicial system can be independent or indeed that it can operate for any other purpose than for the further entrenchment of white domination.
Consequently, I refuse to plead to the charges. I shall participate in these proceedings under protest in order to expose the methods used by the governing regime through their security police and security forces in general.
THE TRIAL OF MXOLISI PETANE
This will be my last opportunity to speak here, and I would like to express my appreciation of the sensitivity of this court during the course of this trial to my position as a soldier of Umkhonto we Sizwe.
My Lord, I stand in this witness box charged and convicted of terrorism and two counts of attempted murder, charges which I had refused to plead to because I believe my prosecution was a grave breach of international law in terms of the 1977 Additional Protocols to the 1949 Geneva Conventions, to which my organisation, the ANC, is a party.
Furthermore, the fallacy about these charges is an attempt by the state to deprive MK combatants and all struggling people of their legitimate right to Fight and overthrow this crime against humanity – as apartheid is now recognised under international law – in the exercise of their right to self-determination as enshrined in the Charter of the United Nations and the Declaration of the Principles of International Law.
I deny the legitimacy of the ruling government for the following reasons:
I believe that when the British government granted independence to South Africa through the 1931 Statute of Westminster Act, it violated the right of the people of South Africa to national self-determination – a right enshrined in the 1919 League of Nations Covenant. The Covenant embodied a principle of trusteeship which required the British government to administer South Africa until the people themselves could take over. But the British government granted independence to a white minority community, thus creating a neo-colonial state contrary to international law and morality.
Both the South Africa Act of 1909 and the Statute of Westminster Act were validly enacted in terms of the British law. But insofar as they applied to South Africa they were illegitimate, because they violated the Covenant.
The subsequent enactment of the South Africa Act of 1934 did not validate the fatally defective title conferred on the white minority by Britain.
As a result all subsequent South African governments became merely de facto governments. I believe that such governments have no legitimacy because they are not based on the will of the people.
Gradually, these de facto governments became tyrannical regimes – enemies of the common good. To be a tyrannical regime a government would have to be hostile to the common good in principle. The Nationalist government, with its apartheid policies, is hostile to the common good in principle because it is a government that is elected only by the white minority, and is given an explicit mandate to govern in the interests of, and for the benefit of, the white minority rather than in the interests of, and for the benefit of, all the people.
Reign of Terror
I first experienced the cruel and ruthless tyranny of this regime during the 1976-77 riots. It then became clear to me that the violent reaction of the police to our initially peaceful demonstrations against inferior Bantu Education was not just misconduct of some commanding officers of police and anti-riot squads, but rather the mode of operation of this tyrannical regime to anyone who dares oppose its unjust laws. The reign of a tyrant always ends up as a reign of terror. It is inevitable, because from the start the tyrant is an enemy of the common good.
This was proved by the continued killing and maiming of the defenceless school children, which was encouraged and condoned by the government, and morally Justified by their chaplains. The government exploited the concept of law and order to enforce and maintain the inferior Bantu Education. Our demands for non-racial, free and compulsory education were depicted as lawlessness and disorder that deserved to be crushed and suppressed by `hippos`, teargas and live ammunition.
Not a Racial Conflict
With stones and dustbin lids against hippos, teargas and live ammunition, we resisted and rejected Bantu Education and all unjust and discriminatory laws of apartheid`s oppression. During these unequal skirmishes with the police and antiriot squads, I realised that the conflict is not simply between black and white. The conflict is between the oppressor and the oppressed. Although there is a racial component, colour played very little role in distinguishing between friend and foe. We were also shot at by black policemen, and we were treated by the white doctors who risked their lives by coming into the townships and their jobs by not reporting those who had bullet wounds …
Refusal to Submit to Tyranny
When I joined Umkhonto we Sizwe, it was not because of my desire for violence, but because the time had come in my life when I was left with only two choices: to submit or fight apartheid. I chose not to submit to tyranny, but to fight back, so I would have been unrealistic and wrong, after my 1976-77 experiences of tyranny, to continue pursuing non-violent struggle when all our peaceful protests were met with naked and brutal violence.
It is a lie, a deliberate distortion of facts and a slanderous propaganda exercise to call the ANC and MK terrorist organisations, and, therefore, its cadres terrorists. What I understand the world to regard as terrorism is the kidnapping, hijacking, the holding of civilians as hostage and any other deliberate policy to attack civilians.
MK Rejects Terrorism
MK, from its inception, has emphatically rejected terrorism as a form of fighting. MK became the spear and the shield of the oppressed majority in their bitter but just struggle to exercise their legitimate right to self-determination. In its earlier stages, the MK High Command opted for a sabotage campaign with emphasis to avoid loss of life at all costs. The motive behind this campaign was that the regime would come to its senses about the seriousness of the demand for self-determination by the oppressed majority before there is bloodshed.
But because of the intransigence of the regime to our demands, this campaign developed to restricted guerrilla warfare with carefully selected economic and military targets. Now, as the war gains momentum, and guerrilla warfare is steadily becoming fully fledged, bloodshed is inevitable.
Prisoner of War Status
Realising this fact, coupled with the consistent attitude of the ANC to minimise bloodshed and humanise this war, the ANC accepted the invitation to participate in the deliberations that in the end produced the 1977 Additional Protocols, and in 1980 became the signatory to this document, thus committing itself to observe the laws of war. We may well note that no terrorist organisations were invited to these conferences, only the legitimate national liberation movements.
All this proves beyond any reasonable doubt that the regime`s accusations of the ANC being a terrorist organisation are unfounded.
Reforms Ensure White Minority Rule
The present government has adopted a different approach from the previous governments in its application of apartheid. Various cabinet ministers at home and abroad have condemned apartheid and even pronounced it dead. The reality of the situation is that apartheid is alive and vigorously practiced.
What the present government has done is to scrap some racial laws, introduce the tricameral parliament and promise further reforms. There have been reforms in the past and, no doubt, there will be reforms in the future. But these reforms do not usher in a new era – an era of a democratic and apartheid-free society. What they do is attempt to make apartheid acceptable, and therefore our oppressors more effective.
All the reforms that the government has introduced are reforms that were calculated to ensure that its electorate remains in a privileged position. None of the reforms seriously challenge apartheid structures in order to remedy the plight of the oppressed. As a result, nothing has changed for the oppressed majority. Apartheid is, in principle, irreformable. The only thing that can be done about it is to totally scrap it.
There have been talks about negotiations with the ANC, but only when it renounces violence. Violence in the South African situation is a loaded word. The state propaganda and the mass media have chosen to call what the oppressed majority `are doing as they struggle for their legitimate rights `violence`, and not call what apartheid is doing to us `violence` – especially the naked violence of the police and the army.
Is it because the activities of the police and army are regarded as defensive? is the indefinite detention without trial of 11 -year-old children, never mind their elders, defensive? Deaths in detention, torture, banning orders and banishments – are these activities defensive? Illegal occupation of Namibia – defensive? Why are the activities of the oppressed majority not regarded as defensive?
To renounce violence in these circumstances is to play into the hands of the oppressor and to become accomplices in our oppression.
Fight for Genuine Peace and Lasting justice
Our situation today is the struggle for justice against apartheid`s injustice. To speak of negotiations between the two is not only unrealistic but wrong. The ANC`s mandate is to oppose and do away with apartheid, and not try to side with injustice. There can be no negotiation when apartheid is still intact, and the regime is showing no signs of dismantling it in the near future.
There is nothing the ANC wants more than true negotiations that will result in genuine peace and lasting justice for all.
MXOLISI PETANE REFUSES TO PLEAD
ANC combatant, Mxolisi Petane, sentenced to 17 years` imprisonment, refused to plead to the charges brought against him, arguing that in terms of the Geneva Protocol of 1977, he should be treated as a prisoner of war.
The judge threw out this submission, rejecting the notion that the `strife in South Africa had deteriorated to an armed conflict`.
THE TRIAL OF TONY YENGENI AND THIRTEEN CO-ACCUSED
Fourteen people, at the time of going to press, are on trial in Cape Town facing `terrorism` charges.
This trial has yet again revealed how captured ANC cadres are tortured and pressurised into joining Pretoria`s notorious death squads. Jonas Bongani, brought to court as state witness `Mr. X, exposed this when he refused to testify against his colleagues. Bongani was sentenced to three years for his courageous refusal to betray his comrades, his people and his beliefs.
On trial with Yengeni are lennifer Schreiner, 32, Lurnka Nyarnza, 25, Michael Lumbambo, 35, Mbutu Nduku, 26, Wellington Nkwandla, 3 , Gary Kruser, 27, Christopher Giffard, 27, Alpheus Nclude, 45, Gertrude Fester, 36, Zurayah Abass, 35, and Colleen Lombard, 37.
TRIAL OF TONY YENGENI AND THIRTEEN CO-ACCUSED
Statement read to the court by Tony Yengeni
We stand here charged with `terrorism. The original main charge against us was treason. After the state had been questioned on our behalf, it withdrew this charge. The allegation then was that we sought to overthrow the state. The present indictment still attributes such an intent to us. What was and still is omitted is that the state referred to is the apartheid state.
Our understanding of treason is that it is a crime against the people. It would, for instance, be treason to betray the people of this country and to take up arms against them. But our people have been treasonably betrayed. The racist minority regime rules by force, through the barrel of the gun and without a mandate from the people. It has created an apartheid state and, in order to maintain and defend it, employs awesome weapons of war which it has unleashed against the citizenry of this country. One of the results is an ongoing international armed conflict in which the racist minority regime is ranged against the people of the country.
We believe that South Africa belongs to all who live in it and that no government can justly claim authority unless it is based on the will of the people. We accordingly abhor the apartheid state and, in so far as we have any choice in the matter, we owe it no allegiance whatsoever. We make no apologies for seeking its downfall. Nor do we believe that those who seek its demise, whether by international armed conflict or otherwise, should on that account be considered guilty of criminal conduct.
The Regime Stands Accused
The regime therefore stands accused of treason and the people do not and will not withdraw that charge.
As for the charge we now face, we again say that it is the state that stands accused. In defence of its apartheid practices, this regime has brooked no opposition. Mass democratic organisations, the organisations of the people, have been silenced and their leaders gaoled or restricted. Tens of thousands of the regime`s political opponents have languished in gaol, having been detained without trial. Scores of others are forced to stand trial for, so-called crimes against the state. This is called the maintenance of law and order. We call it terrorism.
It is terrorism, too, when innocent men, women and children are attacked by the regime`s police and SADF, and killed. while they sleep,.in foreign countries; we think of Maseru, Matola, Gaborone and others. It is terrorism when this country`s neighbours are destabilised, all in the name of apartheid.
It is terrorism when assassination squads, operating inside and outside this country, hunt for and eliminate opponents of apartheid. We think of Ruth First, Jeanette Schoon, Pat Ndzima, Cassius Make, Abram Tiro and many others.
We recall with horror the cruel and untimely deaths of many heroes of the struggle inside the country, all at the hands of the agents of this regime. It includes Joseph Mdluli, Steve Biko, Neil Aggett, Goniwe, Calata, Mhlawuli, Saul Mkhize, Hector Petersen, Timol and many others. The roll-call is endless. It includes the hordes of our fallen comrades who have dared to march in protest against their oppression, together with the countless numbers who did not even march but were mowed down by the police and SAN in the townships of our land, Sharpeville, Langa, Nyanga, Soweto and elsewhere. We call this brutal, naked terrorism. This is terrorism in any language.
It is terrorism when, in the pursuit of apartheid, whole communities are uprooted – when extreme misery and poverty are the lot of certain sections of the population while others enjoy a standard of living which rates with the highest in the world.
We say that it is the regime that is guilty of terrorism. It would therefore be terrorism for us to identify with apartheid, or to condone a system that forces its youth to take up arms against fellow citizens, to defend the indefensible.
The Apartheid Legal System
Apartheid stands condemned as a crime against humanity. It has been declared a crime by the international community and has been rejected as a heresy and a sin by the religious community. Yet it has been allowed to devastate millions of lives in this country.
Most regrettably, apartheid has not left the legal system and the judicial process of this country untainted. With due respect to your Lordship and learned Assessors, we have to point out that an official court in this country cannot ignore the laws to which it owes its existence, nor the body of laws which constitute the apartheid legal system: in other words it is enjoined to apply an unjust legal system.
One facet of the workings of the system has already been manifested in this case, in the course of events whereby we were arrested, detained, interrogated and brought to trial.
After our arrest we were detained under Section 29 of the Internal Security Act, a provision which is, in practice, used only against the political opponents of the regime. It is an horrific legal provision and is in blatant disregard of the Rule of Law. The security police have not failed to take full advantage of its provisions; it enables them to operate in the dark and to extract maximum advantage to the detriment of their victim. It enables them to exert all manner of pressures on the detained: psychological and physical torture, intimidation, coercion and assaults. It exposes the detainee to dehumanising and degrading treatment, lengthy interrogation and months of solitary confinement without even the basic mental comforts such as reading material, access to family, friends and legal representation and advice. It is as though the system is designed to destroy the detainee`s mental faculties; it is in fact designed to break him, to force him to produce information which will be used against him at his trial.
Having undergone the rigours of Section 29 ourselves, we are not surprised that political trials are characterised by a high number of `confessions` allegedly made by the accused. The courts have admitted numerous of these so-called confessions.
Conditions of Detainees
The Act stipulates that the detainee should be visited periodically by a magistrate as well as by other employees of the state. We were so visited. Some of us were also visited by the judge President of this division. Our experience shows that these visits do not succeed in ameliorating in any substantial way the conditions under which we are kept. It would rather seem that they were designed to put a more humane veneer on barbaric treatment which is, in effect, sanctioned and countenanced by law. Some of our comrades still bear painful reminders of their ordeal: they are still receiving medical and psychological treatment.
The Courts: Tool of the Oppressor
There is no doubt that the state is using the Section as a terrorist weapon, to exact a terrible revenge on opponents of the regime`s sterile and outdated policies. Eventually, when the victim had been thoroughly broken, he is brought before the courts to put a final stamp of credibility on the actions of the police. The court then in effect becomes a mere tool of the oppressor.
The courts have, furthermore, failed to right the erosion of civil liberties. The judiciary have, by their silence, allowed this erosion to gain momentum and the courts now find themselves bereft of their traditional role of an independent arbiter and protector of individual rights.
The total picture is therefore that of a regime which has treated the courts of this land with disdain. We cannot, therefore, have confidence in those courts; they are not the courts of the people of South Africa; they cannot dispense `justice` except in accordance with the guidelines and rules devised by the oppressor. Our ideal is that all shall be equal before the law; that the courts shall be representative of all the people.
While, therefore, we find ourselves compelled by circumstances to participate in the proceedings in this case, as we intend to do, we have no desire, nor do we Find it at all necessary, to plead to the charges brought against us in this court.
The Struggle for a Democratic South Africa
Finally, we cannot fail to observe that there are numerous political trials before the courts in this country. Hundreds of our comrades, decent, sensitive and intelligent men and women, are daily arraigned; they have but one thing in common: they pursue the same ideal of freedom which the fathers and grandfathers of today`s rulers sought and fought for against the British. But they seek something more: they struggle for a new society where discrimination based on the colour of one`s skin shall be a thing of the past. Hundreds of these noble souls already populate the gaols of this country. Thousands more have suffered severe deprivation while being held in detention for indefinite periods without trial, the anguish and desperation of it all sometimes driving some of them to adopt extreme measures, such as hunger strikes, in order to draw attention to their plight.
South Africa Will be Free!
We in this court are but a humble few. We tread a thorny path which is rapidly becoming a highway. We do expect pain, prison and death if need be.
But our cause is just. Therefore, and in accordance with the ideals enshrined in the Freedom Charter, we here, together with the rest of the people of South Africa, black and white – equals, countrymen, brothers and sisters – will strive together, sparing nothing of our strength and courage, until a just and democratic society is achieved.
Victory is certain! South Africa will be free!
THE TESTIMONY OF MARION SPARG
Marion Sparg`s testimony is in the form of a letter she wrote to her mother. Marion never had time to post it, and when arrested the letter was found on her.
Sentenced to 25 years` imprisonment on charges of treason, arson and attempted arson, Marion had joined MK after the Maseru massacre, where 32 ANC members and 19 Lesotho civilians were killed by the South African Defence Force.
Her letter is eloquent and moving, explaining her involvement in the struggle for freedom in South Africa.
THE TESTIMONY OF MARION SPARG
It is not an easy task for me to explain myself in a letter like this, but I am going to try; so just bear with me as I stumble along … I can understand that in a way you have cause to resent me, for bringing more pain and problems to a family that has already had more than its fair share of trouble. I know also that I have to work out how to survive on my own without depending on anyone. And I believe I am doing all I can at the moment …
Yes, I do feel sad at not being able to be with you and the family. But I do not regret giving up my previous life. I do not regret the commitment I have made. The struggle to get this country free now is my life. If I did not truly believe in what I am doing I would have succumbed to a nervous breakdown or some form of insanity a long time ago. I don`t really expect you or Dad to agree fully with my actions. But I did have an idea that you understood a little. I value the past four or five years more than you could know. The people I have met, the experiences I have gone through, I believe have made me a more complete person. My life has meaning now. I know where I am going and I know we will reach there – even if I don`t personally make it. I have never been more fulfilled. This is probably sounding very trite, but I hope it conveys something of the depth and understanding I`ve gained over the past few years.
Daily happenings only serve to increase my determination, and I am afraid harden me a little each day. In Alexandra last week more than 80 people were shot dead. Most were simply teenagers with nothing more than stones in their hands. But I can understand the fear of the white policemen and soldiers as they faced those children. I can understand their fear as they failed to understand how children with stones were prepared to take on armoured cars and submachine guns. But anyway, I`m not going to give you a lecture on that. I do get very bitter and angry still, but what these past years have given me is confidence and hope – the knowledge that we will win. The government knows it too. . They are only prolonging the agony for all – black and white. It is the people who give me hope – not only those kids in Alexandra and elsewhere. But especially the individuals I`ve met – black and white. I`ve been able to discover what real friendship, love and trust are all about. I know our future is safe in their hands.
I think it is natural for a child to want to make its parents proud. And although it is hard for you to understand, let alone feel proud, I hope one day, if time is kind, you will be able to understand and feel proud. I know it.
If you could meet the people and know the people I am close to, you would understand. Do you remember the young white guy who was killed in the SADF raid on Gaborone? Well, his parents said afterwards they never understood until they went to his funeral and met all his friends and those who worked with him.
They said only then they realised how much he meant to others, and that his life was good and worthwhile, even if they still couldn`t accept all his actions completely. I only hope it doesn`t have to take death to bring you to that understanding. And in any way I have made enemies of my family and some previous friends. For if they are to defend apartheid then I am their enemy for life. It is painful but true. But it is not all that surprising, for South Africa is in a state of war. And war turns brother against brother, and father against son. You see there is really no going back for me. Neither can I stand still. We can only move forward now.
If it means my life I am quite prepared. In fact IT be proud to be counted amongst those who fought and died for this country and people.
This is probably sounding very romantic and reckless, but then it is very difficult to put down in words the simple yet profound principles of one`s life. If I were to live like a `mole`, that is part of the price that must be paid. And it is a very small price compared to what others have gone through, and are still going through.
I suppose the one thing I really need to talk to you about is wanting to have another child. I`ve met and loved other men – and especially one now whose child I would be proud to have. But I know there is no time. I want to be able to be with my child all the time. And now there is so much else to do. I had virtually made up my mind that I was going to have a child no matter what. And then there was the SADF raid on Lesotho in December last year, where amongst others a young white woman and her coloured husband were killed. They were shot dead in bed.
Their one-year-old daughter lay screaming next to their bodies until neighbours came to fetch her. Then I thought, God!
I don`t want my baby to have to go through that. And yet the baby will have cause to be proud one day. So who knows, maybe I will be lucky enough to have
I don`t know if I have gone any way towards trying to explain myself. I hope some makes sense to you. In the end you`ll see, it will be for the good of all. This war has to be fought to the bitter end. And it is going to be bitter. I have no illusions about that. But in the end there will be a happier life for all of us – black and white. And I quite honestly believe that this is going to happen in our lifetime, not that of our children or grandchildren.
Just know that I do love you even if you feel exasperated, betrayed or hurt.
THE TRIAL OF MTHETHELELI MNCUBE AND MZONDELELI NONDULA
The trial of Mthetheleli Mncube, 28, and Nzondeleli Nondula, 25, must rank as one of the most infamous in a country renowned for fixed trials. Both men were sentenced to death after facing some 40 charges arising out of a series of landmine explosions in the northern Transvaal, a border area of South Africa where farmers are de facto members of the apartheid security forces.
Mncube faced two additional murder charges following his escape while being taken in to Messina. Though blindfolded and handcuffed, he managed to grab an AK-47, shoot his captors and escape. He was recaptured nine days later, during which period he had neither food nor water. The two men were kept in leg irons throughout the trial.
Mncube readily admitted that he was an ANC soldier, and told how he and four others had entered South Africa. The group was on a reconnaissance mission of SADF bases and patrol patterns in the border areas. Their mission had been aborted after a farmer spotted them and alerted the police and SADF. Mncube told the court that their commander, who, with two other members of the group, was shot dead in an exchange of fire with the SADF, had ordered them not to return fire when the farmer opened fire on them as they did not want to kill or injure civilians. `We could have wiped them out if the commanding officer had ordered us to do so`, but instead the group had retreated, he said in evidence.
Mncube and Nondula had never met before the trial. Both men were sentenced to death, and at the time of going to press were still being held in Pretoria`s death cells. All peace and freedom-loving people the world over should ensure these heroic soldiers of Umkhonto we Sizwe are not executed.
THE QUESTION OF PRISONER OF WAR STATUS
The case of Obed Masina, Frans Ting-Ting Masango, Neo Griffith Potsane and Joseph Makhura, who faced serious charges in the Delmas Court and three of whom have now been sentenced to death, again sharply raises the question of POW status. This and other trials of combatants of the African National Congress are profoundly political.
Their demands for POW status in South African courts are frequently rejected on two main grounds:
- firstly, the dismissive statement that these soldiers of Umkhonto we Sizwe, who refuse to recognise the authority of the court to try them for ordinary criminal offences, are `self-proclaimed soldiers`;
- secondly, the dogmatic assertion that the South African regime is not bound to apply and observe Protocol 1 additional to the Geneva Conventions as it had not ratified the Protocol, and that the ANC`s declaration of 1980 to observe humanitarian laws of war is not of legal significance because it was not deposited with the Swiss government.
Such positions further the interests of the Pretoria regime and the South African judges who have shown a total unwillingness to understand the way the law has developed over the past three decades and the extent to which the individualistic state-centred method of law creation has been replaced by a more collective and democratic world legal order.
Similar false assertions were made by judge Conradie in Edward Petane`s case in November, 1987. In rejecting Petane`s plea of prisoner of war status, Conradie claimed that South Africa was not bound by the rules of customary international law as Protocol I had not been ratified by a sufficient number of states. This meant, he said, that the provisions of the Protocol had not crystallised into rules of general international law which are part of South African law.
The argument about the validity of these norms of international law is not of academic concern. A number of ANC combatants face trial for treason or other `crimes`. It is not they who, in opposing apartheid, have committed a crime. On the contrary, those who are responsible for their execution will, if the executions take place, themselves be committing a war crime. Serious violations of what are described as the Geneva Principles are war crimes and judges, prosecutors and those who are responsible for the crime of apartheid are individually responsible for their acts. A free South Africa may hold them accountable for these breaches of international law. The Nuremberg Trial of the Nazi war criminals is a precedent for the supremacy of international obligations over national legislation.
As far as new obligations laid down in a treaty are concerned, a state cannot be bound unless it consents to the treaty. But this is not the only manner in which obligations arise in international law. What must also be considered is the background to the Diplomatic Conference from which Protocol 1 emerged in 1977. The Conference was called to clarify and codify developments in the law of war which had occurred in the period since 1949, which itself had taken into account the activities of the partisans, irregular forces fighting against Nazi occupation. The most obvious such development was the increasing recognition accorded to wars of national liberation as not being internal conflicts (and therefore within the exclusive jurisdiction of the states where they occurred) but as international armed conflicts. Such a characterisation did not emerge from a single resolution of the General Assembly (which may not bind automatically) but through a consensus in the international community when at some stage or another, the overwhelming majority of states either supported the development or abstained from opposition. South Africa and Ireland may have been `persistent` objectors to Protocol 1; what they do not have is a right to veto the development of legal rules independent of Protocol 1.
The struggle against racism, as in South Africa, has merged with the right to self-determination. Such has been the strength of international conviction that the unanimously-adopted Declaration on Friendly Relations, adopted by the General Assembly in 1970, could assert that peoples seeking to exercise this right were entitled to struggle against the forcible maintenance of colonialism and racism and `to seek and receive support in accordance with the purposes and principles of the Charter`. Even the judge of American nationality, Judge Schwebel, accepted the validity of the right to struggle for freedom in the Nicaragua case in 1986.
This means that a liberation movement, as a representative of a people combating racialism, has a particular status in international law. If it is engaged in an armed struggle against `colonial domination, alien occupation and racist regimes in the exercise of their right to self-determination`, it follows that such conflict must be regarded as an international armed conflict, rather than as an internal one and, accordingly, be subject to the rules of international law regarding the conduct of war, the so-called jus in bello.
In extending the provisions of the Geneva Conventions to `armed conflicts in which peoples are fighting against colonial domination, alien occupation and racist regimes … `, Article 1 of the 1977 Protocol was not creating new law but, as one of the most distinguished practitioners in the area of humanitarian law Professor Georges Abi-Saab, described it, it re-affirmed, elaborated and specified rules already in existence. Article 1 completed the process whereby states had already accepted as existing and binding law within the framework of the United Nations and general international law.
It is not correct to state, therefore, that ANC combatants are simply `self-proclaimed` combatants. It is through their adherence to the ANC, which is recognised as an authentic liberation movement, that they have become combatants, and it is from this that they should derive the status of prisoners of war. In other words, it is international law that determines their status. The trigger mechanism, for the purposes of South Africa, is whether the situation covers armed conflicts in which `people are fighting against … racist regimes`. Even judge Conradie was prepared to concede that South Africa is a `racist regime` for the purpose of discussion! There can be no doubt that the ANC comes within the formula, especially if one recognises that it took part in the Diplomatic Conference from which Protocol 1 emerged.
As for the ANC`s declaration that it would observe the rules of war in relation to the conflict with the apartheid regime, a matter cavalierly dismissed by the apartheid regime and its courts, it should be remembered that there was considerable debate, long before 1977, as to the effect of unilateral declarations by earlier liberation movements. There were technical rules as to why the ANC declaration could not be deposited with the Swiss Government. But the cumulative effect of the international legal developments was such that form should not stand in the way of the intent of the ANC. This approach was justified by the acknowledgment of commentators subsequently that the form of the deposit of the declaration with the Swiss Government was not so important as the fact that the declaration was made generally known by being addressed to the ICRC.
Once it is accepted that the provisions in relation to national liberation movements arise out of a proper interpretation of the Geneva Conventions to which South Africa is a party, not a mere `signatory`, then certain consequences follow. There is a duty to recognise combatants who are under a responsible command and who comply with the laws of war, the latter being an obligation on the movement itself. Combatants must distinguish themselves from the civilian population when they are engaged in an attack or in a military operation preparatory to an attack. These obligations may be difficult to observe in the kind of guerrilla war in South Africa, and they are a product of a compromise between states. But even if a combatant fails to fulfil the conditions laid down in these rules, he or she must nevertheless still be treated in an equivalent fashion to prisoners of war.
As a result, although the guerrilla fighter loses his status as a combatant, hence as prisoner of war in case of capture, he or she is still entitled in that case to the treatment of prisoner of war. The substance of protection means that there must be no torture, ill-treatment, or delay in trial and the observance of fair procedures. This is independent of the larger issue as to whether any person, charged with serious offences, could ever obtain a fair trial under an apartheid court applying apartheid law.
It should be clear that not all combatants of Umkhonto we Sizwe would be able to invoke the status of prisoner of war as their acts may not be within the protection afforded by the Geneva Conventions. But what is one to make of the treatment of Ashley Kriel, acknowledged as a member of Umkhonto, who while hors de combat was cruelly executed? Here is a clear case of a combatant entitled to prisoner of war status who was killed in contravention of the Geneva Conventions. His death was surely a war crime.
Until the election of the Reagan Administration in 1980, the Security Council invariably opposed sentences of death on combatants as in breach of their status as prisoners of war. But the threat or use of the veto should not obscure the fact that under the Geneva Principles, it is the duty of other state parties to the Conventions to exert pressure on the defaulting state which is in breach of the Geneva Conventions, as these require each party not only to `undertake to respect` but also to `ensure respect` for the Conventions.
It is the duty of the international community to ensure that the apartheid regime carries out its international obligations.
But it is also important for South Africans to recognise the heroism and nobility of young men and women who reject the authority of a regime whose right to rule has been denied by international norms. They are therefore invoking a higher law, an act which should be supported by all peace and freedom loving people the world over
POW status is their right!