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A Matter of State

Rose Moss

A few minutes after four, on August 29, 1988, near the iron gates at the back of the Palace of Justice in Pretoria, helmeted police on motorcycles gather, a siren sounds, the gates open, a canary yellow van drives out. The siren clears the road through the heavy traffic of bureaucrats going home as the "Mello Yellow" rushes with its three charges to maximum security Pretoria Central Prison. A defense lawyer, returning to her office, stops to observe the procession. "Next time they get this kind of treatment," she says to me, "it will be because they are heads of state."

But right now, in the same courtroom where Nelson Mandela was tried in 1964, the three are defendants in the most important treason trial in South Africa in three decades. The "Big Three" are officials of the United Democratic Front, the most powerful anti-apartheid organization in South Africa. They have been leading millions in a conflict whose ferocity shocked the world in the mid-eighties.

The conflict is more than political. Like the civil rights movement in the United States, this struggle heightens for whites and blacks their understanding of what dreams maintain a society or destroy it. It is no accident that the fourth defendant to be found guilty of treason is an official of an organization with a spiritual focus, the South African Council of Churches.

The case is historic and, when the judge gives his ruling, it immediately changes the future of the country. Those who attend the reading of the verdict in a courtroom crowded with distinguished observers recognize its significance instantly. For a while they are silent.

Then, like a Greek chorus, they comment on the verdict: four convicted of treason, seven of terrorism, eight acquitted. Archbishop Tutu says "If this is treason, I am a traitor." Helen Suzman, for a quarter of a century the lone voice of dissent in the white Parliament, says, "This narrows the field for dissent." Someone answers her, "To the width of a coffin."

Within hours the ministers of the state declare that there will be more arrests and bannings.

This must be one of the darkest weeks in South Africa’s history.

But in this microcosm of powers wrestling for control of the future of the country and its people another force is at work.

As the convicted prisoners descend into the holding rooms under the court, the reporter from the Wall Street Journal acknowledges "the four men convicted of treason are set to become the second generation of anti-apartheid legends…." He adds his own detail, "And the legend will surely relate that on the day of their conviction [the defendants] wore yellow buttons on their lapels saying ‘UDF unites, Apartheid divides.’"

The defendants leave smiling.

Those present on the legendary day, Friday, November 19, 1988, include the American ambassador, Edward Perkins. He has come several times during the trial. Interests of the United States are at stake in ways connected with strategic metals, military alliances, and trade and investments. In those terms it matters whether South Africa is going to be peaceable or riotous, and whether the Big Three will hang, remain in prison, or whether they will indeed become heads of state. Representatives from other countries too have shown interest and visited during the trial–France, the United Kingdom, Canada, Greece, Australia, Japan, Sweden, Germany, as well as the Archbishop of Canterbury.

These diplomats may also know that legends are at stake.

The trial attracts many varieties of attention. I observed it for three weeks in August and September, and during those weeks saw diplomatic officials, U.S. Senator Paul Simon, a professor from Princeton, a delegation of officials of Jewish organizations in the United States, writers, journalists, young American businessmen carrying three-ring binders labeled "Investments," women wearing Italian shoes, gold earrings, and French perfume.

The defendants greet these visitors and diplomats with warmth. They also make sure to greet their supporters, representatives of the powerless people for whose rights they struggle. Some come every day: old men who hold their hands on their knees, women who knot blankets over their shoulders, young men whose dusty shoes and fraying pants suggest that they have no work. They sit at the back and listen for hours with the patient demeanor of the devout in church.

A scientist from a research center in Pretoria comes each day of his vacation. Sometimes he brings one or both of his teenage sons. His wife comes. One morning, a woman brings her newborn child in a portable crib. Another day, a professor from the University of Pretoria tells me she comes because she is rethinking her life. Her sister-in-law has been detained without charges.

To a treason trial, to rethink her life?

That the kind of trial this is.

The Delmas Trial began in 1985 in a small town more than an hour’s drive from Pretoria and Johannesburg, where big demonstrations on behalf of the defendants could be made difficult and, if necessary, contained by police action. Phalanxes of police armed with machine guns guarded the prisoners and separated them from the gallery. Security outside the courtroom was also heavy. Now the proceedings are in Pretoria. There are only six policemen in the courtroom and no machine guns.

During the three years of the trial, much has changed. When the trial began in November 1985, the UDF was already fighting for its life. Formed in August 1983 as a federation of grassroots organizations united against apartheid–everything from church choirs and bicycle clubs to civic associations and trade unions–it immediately became the most important opposition organization in the country. Within months leaders were being detained, many without charge. In 1984 and 1985, the country was in turmoil–school boycotts, rent boycotts, and consumer boycotts attracted police intervention and erupted into violence. Resentment against rent increases in black townships of the Vaal Triangle in 1984 led to the lynching of five people, four of them city councillors. Immediately rioting and arson spread through the country. Foreign investment fled. The United States voted for sanctions.

Although the UDF steadfastly proclaimed that its policy was non-violent and non-racial, the government blamed the UDF. In early 1985, it charged sixteen senior leaders with treason–they were acquitted within months. If the Big Three had been nabbed in time for that trial, they might be free today, but they were making themselves scarce.

The Big Three were detained a few weeks later, in April 1985. In June, the government proclaimed a State of Emergency. By then it was arresting children of nine and ten. In 1986, it renewed the Emergency even more stringently and forbad the media to come near scenes of trouble or to describe anything done by the police. In 1988, the UDF was forbidden to act. Now, everything looks peaceful.

Simple duration has driven the Delmas Trial from the front pages. In court days, this is the longest trial in South Africa’s history. The indictment runs to 386 pages, the exhibits more than 14,000. Plus photographs. Plus video and audio tapes. The final record amounts to 459 thick volumes; the verdict takes 1,521 pages. The mass smothers. It encumbers the defense. Several times, at the beginning, the defense asked for the case to be divided into two trials, one against the UDF officials, one against the sixteen accused of fomenting violence in the Vaal. The judge refused.

Originally there were twenty-two defendants. When the state laid out its case, it did not even mention three of them. They were discharged, having spent more than a year in prison. One, aptly named Lazarus, had been married in the courtroom; another had turned twenty-one in prison.

After many applications, sixteen were allowed out on bail although they were not allowed to go home to the Vaal. the Big Three remained in custody in Pretoria Central Prison.

The defense lawyers have worked late into the night and most weekends on this case. Although the States of Emergency have superseded much of the rule of law, the defense conducts the case as though the rule of law may be restored. Although the government creates exceptions to precedent at will, the defense argues as though legal precedent matters. they prepare as though the state needs evidence to convict, and as though the charges and the evidence need to be specific and proved.

The defendants have given one defense lawyer, Bizos, a nickname: Mathlathlo, Power of the Elephant. They used it when he crushed the credibility of a key state witness. The unfortunate man was one of several who testified and was cross examined "in camera." He had given one statement for the prosecution under oath after a hunger strike. That statement did not suit the prosecutors’ purpose. Later he gave another statement that contradicted the first. Between the first statement and the second he had broken his false teeth. Cross examined in closed hearing, he said they were uncomfortable in his mouth, and he pushed them with his tongue and they fell out and broke. It turned out that his teeth broke when he was questioned by five interrogators. Some bones broke too. After he made his second statement, his interrogators warned him that if he changed his latest testimony for the prosecution, he would be subject to imprisonment for five years on a charge of perjury.

The judge thinks it is possible that first he told "an exculpatory" version to excuse himself, then he told "the story."

Although the judge, symbol and instrument of the power of the state, robed in red and seated on high in the carved oak bench, appears to be the focus of power in the room, it is the Big Three who command attention. They sit toward one end of the extra-large dock originally build for Mandela’s trial. Like restless children unnaturally confined in school desks, under the eyes of guards who watch and stroll behind the dock, they talk to others who sit in whisper-reach, pass notes to more distant defendants, to their counsel, and to the police guards. When the door of the gallery opens, they turn around to smile and wave. During breaks they reach eagerly to shake hands.

The Big Three are Popo Simon Molefe, national general secretary of the UDF, Patrick Lekota, publicity secretary, and Moss Chikane, secretary for the Transvaal, the province that holds Pretoria and Johannesburg.

It is one of the surprises of Friday, November 18, 1988, that the judge adds a fourth to the Big Three, convicting Thomas Madikoe Mathata of treason. Mathata, forty-nine, darkest of the four, has been hands. Although he smiles as widely as the others, his older face shows suffering. Mathata comes from a family that makes a tradition of the struggle for political rights. He has spent many years already in prison. Archbishop Tutu invited him to work in the Transvaal as a field worker for the South African Council of Churches. During the trial, he sits one defendant to the right of the UDF Three. Toward the end of the trial, a defense attorney, Bizos, encounters him in the street on the way to the Palace of Justice. Two days ago, a bomb in the wee hours of the morning had blown up the headquarters of the South African Council of Churches. "How are things going?" Bizos asks. Mathata answers, "We never lose hope."

The voluminous indictment charges treason, conspiracy to overthrow the state by violence, murder, arson, incitement, subversion, sedition, and complicity with the outlawed African National Congress, Mandela’s party. The ANC was banned in 1960, and resolved to turn to "armed struggle" in 1961. Based in Lusaka, Zambia, the ANC now functions in exile. It looms larger and more frightful than life in the imagination of some South Africans.

At times there seems a garish disparity between these allegations and the actual circumstances that drew the defendants into political action. Ramakhula is in the trial because of his door.

Ramakhula is an illiterate auto electrician who does not speak English, a man who used to help his neighbors fix their cars and then accept a shared beer as payment. When he moved into a state-owned house in 1977 after paying the expected bribe, he found the floor and walls uneven and the door badly rotted. For four years he complained. One official sent him to another, until one said the city’s Board was no longer responsible for repairs.

Ramakhula protested, but eventually bought a door, paying in installments because he could not afford the whole sum at once. Soon after, he fell into arrears with his rent. The Board attached some of his property–the door.

He borrowed money, paid the rent, and went to reclaim the door. "I found it without the locks… My door, which I paid money for, which money, in fact, was supposed to have been paid for in the rental, which rental caused them to come and take that very door. In fact, that is the door I am talking about, which is mine."

At election meetings for the city council, often considered a government institution, all the candidates he saw were officials he had dealt with about his door. He did not vote. He did join the Vaal Civic Association at its founding in 1983. There people seemed interested in his grievances.

He participated in a march to petition the school about admission policies affecting his son. The school principle acceded to the petition. Ramakhula had learned that joint action carries clout.

When residents of the Vaal decided to protest a rent hike with a stay-away and a march to the Administration Board, Ramakhula was one of the leaders of the march. The day of the march, city councillors were lynched. Police met demonstrations with armored vehicles and a helicopter, bullets and tear gas. They were answered with stones and bottles.

Ramakhula is one of seven convicted of terrorism. The judge says they organized demonstrations knowing that they would lead to violence. He does not find them directly responsible for violence themselves. Like the others convicted, Ramakhula faces hanging.

Other defendants drawn willy-nilly into the throes of political upheaval also come from the world of small opportunities allowed by apartheid. Only one aspired to a university degree, in journalism (acquitted). One is an agent of a dry cleaning factory (convicted); another a trade union official (convicted); a stock controller in a furniture store (convicted); a peddler of poultry and wood (convicted); an insurance salesman (acquitted); an unemployed ex-student (convicted).

Some are angry and bitter. One imprudently talks of "going underground." Others seem resigned, even, like the UDF Three, happy, engaged in what they call "the struggle" and prepared to bear its costs.

The UDF officials are alert, alive, and focused. It is the judge who is doing time here. Three years. Justice Kees van Dijkhorst, who has a reputation for brilliance, leans forward and props a high dome on long fingers, hiding half his face. He lowers his eyelids. His body protests this torture. Seated in the high bench, he cannot simply cave in, fold arms on the desk, and sleep as the younger defendants sometimes do–until a policeman walks behind the dock and prods them awake. When the final weeks of defense arguments take longer than expected, van Dijkhorst sets a time limit and brooks no discussion. He watches the clock opposite the bench. He ends sessions on the dot. When, through accident, the defense loses some of the time he has allowed for oral argument, he gives it back, counting, "You have eighteen minutes."

The trial tries the judge’s temper to its limits. In the early days, he allowed one defendant, an Anglican priest, (acquitted) to say a prayer and bless all in the courtroom at the beginning of each day. He occasionally brought cake for the defendants. He gave up the bench for Lazarus’s wedding so that bride and groom could take the highest place in court.

He made lawyerly jokes. A defense lawyer argued that just having a book doesn’t mean you believe what it says, and cited previous authority, "We shall give your lordship the reference in due course–that being in possession of the New Testament did not make Bertrand Russell a Christian." Kees van Dijkhorst replied, "I do not think you need authority for that. I have got the Koran myself."

In the early days, van Dijkhorst sat with two assessors. Trial by jury has been abolished in South Africa. In serious and capital cases like this the judge is supposed to sit with two people who have some legal training and who discuss the case with him. Van Dijkhorst chose a distinguished professor of law and a magistrate. The professor of law was known to be a liberal by Afrikaner standards. The magistrate was a member of the Broederbond (Band of Brothers), a secret society that exercises power throughout Afrikanerdom.

In March 1987, van Dijkhorst fired the professor because he had signed a petition widely circulated by UDF affiliates. The professor revealed that van Dijkhorst had bet him a bottle of whiskey that the defense would not "take the risk of placing the accused on oath to give evidence on their own behalf." When he lost the bet, the judge did not hand over the whiskey himself–he had his clerk do it.

The defense asked van Dijkhorst to excuse himself for bias. He refused. The defense asked him to quash the proceedings because the court was no longer properly constituted. He refused, and threatened Chaskalson, head of the defense team, with contempt of court.

Since that acrimonious day, professional respect between the judge and the defense has worn thin.

Between the defendants and the judge sit the lawyers. The senior prosecutor, P.B. Jacobs, is a veteran of political trials. He once prosecuted one of the lawyers for the defense, and may now have his eye on others. Gray in hair and skin, he looks like a middle manager in a large corporation who knows where all the skeletons are buried but has no hope of promotion. Advocate P. Fick, a younger man, retains animal health. Corpulent and busy, he moves quickly in his black gown.

The prosecution team speaks Afrikaans and stumbles in English. It refused to give an English translation of the indictment.

The prosecution lawyers sound sincerely unable to believe that a grassroots organization like the UDF can function. The real structure must be like organizations in their own experience and understanding, a military command structure secretly threaded with alliances like the Broederbond.

Although defendants and their counsel make distinctions between concepts like state and government, the prosecutors use the terms interchangeably, as in other countries where the post office and the army, schools and elections, hospitals and TV are part of one institution, total and indivisible.

From time to time the defense team complains about the mass of the case and the muddle of the prosecution’s exhibits. Professional scorn contributes its own note to the proceedings.

The composition of the defense team gives a different idea of who makes up the people of South Africa. It is black and white, Indian and African, and includes men and women born in South Africa, Greece, and Holland.

The two senior defense barristers defended Mandela. In appearance they make a team like Quixote and Sancho Panza. Tall, dignified Arthur Chaskalson, the younger, has received honors in South Africa and abroad for his human rights work. He taught at Columbia Law School last year. George Bizos has been arguing political cases since the massive Treason Trial in 1956 where Albert Luthuli, later awarded the Nobel Peace Prize, was one of the defendants. Mandela was another.

One Indian barrister is blind. When a witness for the prosecution came before him with visual exhibits, graphs, and diagrams, he asked for descriptions, and in cross-examination would say things like, "In the top left hand corner…"

Two young white lawyers, graduates of the most elite girls’ school in South Africa, have both driven to find witnesses alone and at night in black townships of the Vaal where there is no street lighting and where there had recently been rioting, murder, and arson. They are living as if in a society at peace, by the UDF’s principle that the present must manifest the desired future. "In political struggle, the means must always be the same as the ends…. A political movement cannot bequeath to society a characteristic it does not itself possess."

The prosecution alleges that the UDF is a façade for the African National Congress, and that it professes non-violence only to be able to function within South Africa. The defense claims that the charges in this case repeat the charges of the massive Treason Trial of 1956-61. All 156 defendants were discharged or acquitted then.

During the last days of the trial, Chaskalson reads portions of the 1961 judgment. He quotes what the judgment then quoted, incendiary speeches about bloodsucking capitalists opposed to peace-loving communists. In 1961 these speeches were judged to be hotheaded rhetoric without specific plans, words of one member, not the policy of the organization. Chaskalson reads the speeches with declamatory verve. Van Dijkhorst maintains his composure but turns pale. Words like these have not been heard in public for nearly thirty years. Van Dijkhorst notices a blue-eyed young Afrikaner policeman listening with attention and sends him out of the room on an errand.

The UDF steadfastly professes nonviolence and denies that it is a façade for the ANC. When a prosecution lawyer challenged Molefe that the UDF takes orders from the African National Congress, and that the UDF manipulates its members into compliance, Molefe answered, "Our people have lived a life of being shunted from pillar to post, either by the bosses in the factories or the madams in the homes where our mothers work as domestics. We do not want to extend that kind of situation where we want to pull around people by their noses. We want our people to taste democracy, and that democracy can be tasted in our organizations.

"If we do not do that, we are merely perpetuating what the present government is doing….That, the UDF does not want to approach. It is simply not in line with out approach." The language and images suggest that he is talking about his family as well as about his politics.

This is van Dijkhorst’s first political trial. (He says he has attended only one political meeting. He may be referring to an address to Pretoria students by Albert Luthuli. That meeting was broken up by hooligans. Van Dijkhorst testified against them.)

Chaskalson angers van Dijkhorst with political citation that demonstrate widespread opposition to apartheid, even among government-approved blacks. All use slogans used by the UDF like "Power to the people." Chaskalson argues that many people in the world think it legitimate to ask for "government of the people, by the people, and for the people." Van Dijkhorst appears not to recognize the quotation.

Van Dijkhorst jousts with Chaskalson. He interrupts an argument to say that he has been personally troubled by a question for a long time: Why didn’t the UDF condemn the violence of early 1985? Why did everyone blame only the South African Defence Force for violence?

Although van Dijkhorst’s voice sounds like that of a man torn by doubt and arguing with himself, Chaskalson hears the interruption as a trap. He answers with lawyerly caution, asks for time, and spends all waking hours of the weekend searching the record for instances of the UDF declaring its policy to be non-violence in 1985 and before. If van Dijkhorst has a genuinely personal question about the UDF’s conduct, it remains unanswered.

During the exchange, van Dijkhorst does not look at Molefe or Lekota. In court or out, he cannot talk to them as equals. They are not equals under the law he administers.

This is the dilemma of the trial and of the country. Those who speak with the power of the country. Those who speak with the power of the armed state and those who speak with the power of the people do not speak to each other.

Molefe says that dialogue will come "sooner or later." It must, "for the sake of peace."

A central platform of the UDF calls for dialogue in a national convention where all stakeholders will redesign the constitution of South Africa. The prosecution argues that this is a demand for black rule. Both Lekota and Molefe say, "When freedom comes, it will not be a victory of blacks over whites but that of the people of South Africa over an evil system that has for so long set them against one another."

In the light of common sense, the UDF has been crushed. But in the courtroom during the trial, its officials seems as busy as though there is no time to waste on their own mere life and death. And on hearing the verdict, Chikane says, "We haven’t given up. We’re still kicking." Lekota, irrepressibly smiling, wearing his red, yellow, and black UDF pin, promises, "We will correct things in this country. We will. Those of us who have gone through the fire will be playing the very role of defending these people." He points to the people his society will defend, the judge and prosecutors.

Lekota’s promise may seem absurd but it is out of words and deeds like these that the power of the movement comes.

During the strenuous last days of the trial, Bizos spends many hours on his feet. They hurt, and Bizos feels his gout. One afternoon when the court adjourns, the young policeman van Dijkhorst had sent out of the room during Chaskalson’s argument offers Bizos a piece of fudge. Bizos is touched. He talks about the gift for days.

Stitch by stitch they create a fabric of amiable intercourse notably lacking in the formal process. In this society at the beginning stages of civil war, where bombs planted by opponents and supporters of apartheid go off every day, each side keeps fraternizing with the enemy. They manifest the future Molefe describes as one where white and black will be "reconciled to living with each other."

To cope with the physical pain of sitting on hard wood for three years, defendants have put pieces of foam and cheap cushions in the dock. The officials take no notice. The defendants bring books to read surreptitiously. Although a frowning black policeman exercises strong authority in the gallery to forbid reading, note taking, or talk by observers, no one disturbs the defendants. A gay defendant (acquitted) asks a day’s relief from bail restrictions to take part in a marathon. The judge wishes him luck.

The courtroom is full of suggestive incidents. That white baby brought in a crib. A young black policeman whose face looks like a smooth Nigerian mask stands by the dock and looks at the baby throughout an eighty-minute session. He cannot take his eyes away. He may be one of the many blacks separated by hundreds of miles from their families. When the infant wakes and the mother holds it, he looks with such attention that the courtroom could burst into flames and he would not notice.

Officials connive at prohibited kindness. Every day Bizos brings salad he grows in his own garden for the three prisoners. Under the sign at the lobby that says, "No food or drink," he hands it to the security guards who search all bags. Bizos walks through the metal detectors, he guards give him his briefcases and the salad. He takes the contraband food to Courtroom C and hands it to the Big Three.

Van Dijkhorst may have created an ideal incubator for a new legend. If it flourishes, as seems to be happening, the four will be accepted even among many who have opposed the UDF. If they are alive on what Lekota describes as "freedom day," they will command enough loyalty to pursue their work of reconciliation.

Outside Courtroom C as well as in it, the legend has been germinating. Ex-convicts say that the number of rapes in the prison near Delmas fell when these defendants were incarcerated there.

There is the university professor who comes to the trial to work out how to live her life.

The editor of a major American newspaper reads a letter by Lekota and asks with suspicion, "What do you make of the Christ-like character of this piece of writing?" A foundation official says, "It takes heat and pressure to make diamonds, and I guess South Africa has lots of both." A State Department official talking of Molefe and Lekota says, "There’s something like Gandhi going on. Like Martin Luther King."

Mandela has proved the power of legend. After twenty-six years in prison, he is the one acknowledged leader accepted by all black South Africans and many whites. During the last days of the Delmas Trial he is ill with tuberculosis. The Prime Minister, P.W. Botha, virtually begs Mandela to find a face-saving way for his own release. An anti-apartheid newspaper publishes a four-inch headline, "Free P.W." and the defendants laugh.

But for all the laughter, their eye is on the long term and they know that what they do now is generating that future.

The four new treason convicts carry these principles into a new generation. In understanding how principle give form to political action, in wishing to avoid but facing the possibility of civil war to unite their country, in holding out for the government of the people, in longing for reconciliation, the Big Three recall another leader who wished to act "with malice toward none, with charity for all, with firmness in the right as God gives us to see the right."

I had not expected to hear a tone like Lincoln’s in Pretoria.

Outside the Palace of Justice, in Church Square, the defendants on bail eat grits and stew provided by the South African Council of Churches. They are allowed to sit on the lawn now, although blacks used to be forbidden the use of Pretoria’s parks. School children sit on steps under a statue of the Afrikaner hero, President Paul Kruger. Pigeons shit on his hat. His bronze eyes look vaguely in the direction of the Palace of Justice, whose façade is veiled by scaffolding. Above the entrance a sign reads "Danger."

In Chamber C, supporters and visitors throng forward in the brief moments before the next session. When a police officer commands them to stand for the judge, all obey. The judge comes in, weary of all this business that imprisons him in its process, impatient for the end. The supporters remain to witness. The visitors, who have to talk with the leaders of the future, leave. <




Originally published in the February 1989 issue of Boston Review



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