If This Be Treason

HELEN JOSEPH

If This Be

Treason

Foreword by Benjamin Trisk

Foreword to 1998 edition by Walter Sisulu

Foreword to 1963 edition by Albert Luthuli

KWELA BOOKS

Foreword

BENJAMIN TRISK

I was unaware of Helen Joseph’s memoir of the Treason Trial (1956–1961) until I came across a letter to IA Maisels, QC (Isie), who was my father-in-law. I was helping him tidy up some old papers around 1991 or 1992 (he died at the end of 1994) and I found a hand-written letter among his papers. It was addressed to him in an unknown hand and dated 22 February 1961. A facsimile of the letter is included in this book. Among the signatories to the letter was Helen Joseph. She was one of the activists who was detained and charged with others in December 1956. Between 5 December and 12 December 1956, 156 people were arrested. The charge was High Treason.

In those days, there was first a Preparatory Examination (which concluded in January 1958) and 92 of the 156 were then committed for trial. The others were free to go. The Treason Trial, as it is known, commenced in August 1958. This was known as the First Indictment and the State quickly realised, as a brilliant Defence team first dissected and then destroyed the State’s argument, that it would have to withdraw the charges – which it did in October 1958. The State, however, was not giving up and the trial commenced again in January 1959 (the Second Indictment) with a further reduction in the number of the accused. Thirty of the original 156 then faced charges for High Treason.

Until I had found the letter, I had known very little about the Treason Trial. I knew that Isie had led the defence team but he had never spoken of the letter or the plaudits that it contained to his family. This much was confirmed to me by both my late mother-in-law and his daughter, Helen, whom I had married in 1990. Moreover, when I asked him some further questions about the letter and its provenance, he pushed it aside as though it was of no matter at all. Interestingly, this is borne out in Helen Joseph’s recollection of the moment he received the letter in Court, and the letter is signed by all 30 of the accused, among whom was Nelson Mandela.

Helen writes in her memoir as follows: He reads our letter – it seems as though he reads it two or three times. Then he looks at us for a brief moment, deeply moved. He takes off his spectacles and puts his head in his hands, and thus he remains for a little while, before folding up his letter carefully and putting it away in his breast pocket. The letter was an extraordinary tribute because it sums up so clearly the true role of the defence in the Treason Trial. The accused write to him, inter alia,  . . . we have been proud to have been defended by you . . . proud because we know of the magnificent legal battles that you have fought to preserve the rule of law, to prevent it from being whittled away by the unscrupulous maginations of the Government. Although written directly to Isie, there is no question that the tributes belong to the entire legal team. Moreover, it is surely ironic that even today, in the new but still flawed South Africa, we, the people, depend so much on our courts to ward off predations of a greedy and often unscrupulous government.

Ultimately, the trial ended rather abruptly on 23 March. The Bench, which consisted of Justices Rumpff, Bekker and Kennedy, cut Bram Fischer short in his closing arguments and the Court adjourned. The accused, as Helen recounts, were flummoxed by this turn of events until their Counsel told them that the adjournment could only have one meaning: they would be acquitted. On 29 March 1961, the Court reconvened. There was one last attempt by the State to amend the indictment. The judges were not interested and they proceeded to tell the accused, You are found not guilty and discharged and you may go.

The Trial is an enormously important event in the annals of South Africa’s liberation history. If these men and women had been found guilty, the alternative would likely have been execution. It would have cut the leadership heart from the African National Congress; people of the ilk of Nelson Mandela, Ahmed Kathrada, Duma Nokwe, Walter Sisulu, and others would have perished. The Trial is significant because it allowed the leadership group of a dispossessed and oppressed people to have a voice in open court. The quality of the defence was extraordinary. They have been described, to me, as the A team: the towering figure of Isie Maisels, the clinical skills of Bram Fischer, of Sydney Kentridge, of Chris Plewman and other remarkable advocates, combined to convince an apartheid Bench that the law must ultimately prevail.

Indeed, Isie told me that there was great debate, when he was approached to lead the defence team in 1958, as to whether legal argument was the right approach. Many of the accused wanted to make a political statement. Isie stood fast. If that was what they wanted, he said, they would all hang and they would have to find another jockey (his words). He was certain that he could use the law to protect them; and this is what he did.

However, Helen’s memoir is important on another level altogether. It is not a legal exposition on the merits of the defence and she made no claims to understand the complexities of the trial; it is, rather, an inspiring account of the personal relationships between the accused and also between the accused and their Counsel. She writes with great humanity about these relationships. Outside the world of the court and the daily grind backwards and forwards from prison in Johan­nesburg, to the hastily assembled court in Pretoria, events were moving quickly. Resistance to a heinous system engineered by brutality and disregard was becoming more and more pronounced. Sharpeville and the State of Emergency happened in February 1960, and the Alexander bus boycotts had sparked a show of unity between some white South Africans and black workers shortly after the December 1956 arrests.

Helen Joseph’s memoir is a unique book. The apartheid State hoped to make them guilty of treason purely by their thoughts and words. It would have been a devastating blow to the aspirant; seeking nothing more than a democratic and humane solution to South Africa’s problems. What the memoir does do is to tell us in a simple and poignant way how the accused felt at that time. It tells of their personal struggles, their relationships, and the extraordinary bond that existed between them. The memoir, by itself, is something of a monument. It is a rare portal into the hearts of those who fought for South Africa’s freedom and it is an incisive window into the lives of ordinary men and women who were made great by their circumstances and who rose so magnificently to the occasion.

Sandton, Johannesburg

7 November 2017

Foreword

WALTER SISULU

When the arrests of activists took place in December 1956, it was against a background of ongoing, non-violent protest on the part of black people throughout South Africa. The degree of solidarity at that time was amazing and the regime’s intention behind the arrests was to intimidate and threaten; there was certainly no legal reason for the arrests, as the ultimate ‘Not Guilty’ verdict proved. I was arrested on 12 December along with Comrade Nelson, Joe Slovo and Rusty Bernstein, among others. I think that there were ten or fifteen of us arrested on that day. We were fairly sure that we were going to be targeted, as a number of previous arrests had been made earlier.

I was living in the same house that I still reside in, in Orlando. It was the Security Branch that arrested us and, in those days, they had a studied politeness about them; none of the cruel harshness for which the South African Police were notorious.

The purpose of the charges was to bring the democratic movement, particularly black opposition politics, to its knees. The idea in the minds of the apartheid rulers at that time was to wipe out all resistance to apartheid policies. Proving treason in a court of law would have been a good way to go about it as the penalty for treason could have been the death sentence. In the mind of the government of the day it was no doubt part of the final solution.

I was not new to the process of detention, nor was I disturbed by the general harassment that followed any black activist in those days. I had been detained in the Defiance Campaign and charged in the Transvaal Supreme Court, as it then was, in December 1952. Twenty of us faced charges then, and we were ably defended by one of the country’s leading QCs at that time, Bram Fischer. Bram was to go on to become notorious when he disappeared in 1964 and went underground to lead the South African Communist Party. His subsequent arrest and inhuman treatment is one of the great stains on South Africa’s vulgar apartheid history.

Subsequent to that trial, Bram was to be a member of the defence team in our treason trial. The instructing attorney was Michael Parkington, a master tactician, a larger-than-life figure who was adored by all of us, including the very eminent legal minds whom he instructed. His decision to leave South Africa in the sixties and live out his life in the UK was a great loss. In that 1952 trial we were all found guilty but received suspended sentences.

The amount of support we received when news of our arrests became public was quite astonishing, certainly far beyond our wildest expectations. What is more, that support came from every quarter, black and white, worker and businessman, local and international. Altogether, between 5 De­cember and 12 December 1956, 156 people were arrested. A fund was set up immediately to raise bail for the accused and one of the great liberal churchmen of that time, Bishop Ambrose Reeves, then Bishop of Johannesburg, headed the fund. A Treason Trial Committee was set up in Johannesburg to provide legal aid and welfare assistance and its efforts extended around the country. Under Canon Collins of St Paul’s Cathedral, a similar fund was started in Great Britain and this was to become known as the Defence and Aid Fund.

In those days, preparatory examinations were held to establish the State’s case and a preparatory examination for the treason trial accused began on 19 December. The late Isie Maisels, who was to lead our defence team, has himself recounted how, on the second day of the preparatory examination, he arrived at the court to find that the accused had been put in a cage with tubular scaffolding and wire netting. Maisels was outraged and, of course, was not prepared to participate in court proceedings that denigrated the accused in this way. He immediately went and told the magistrate, a Mr Wessel if my memory serves me correctly, that he and his colleagues would walk out if the cage was not removed. By this time the eyes of the international press were on us and it was very quickly removed.

I should add that among those who stood bail for us was the late Dr Ellen Hellman, a distinguished anthropologist, who was later to become the president of the Institute of Race Relations, and the late Walter Pollack, a leading member of the Bar and a great lawyer.

At the end of the Preparatory Examination, which only concluded in January 1958, 92 of the 156 originally arrested, were committed for trial. I should add that the defence team at that time was completely mystified as to why it was that some had to stand trial after the Preparatory Examination and not others.

It is strange to think that while, in the South Africa of those times, black and white were so strictly segregated, the benches of the treason trial on which the accused sat were one of the few spaces where black and white could mingle freely.

I remember throughout that time we were always at pains to conduct ourselves in a disciplined manner, no matter how rudely or roughly we were treated, or how abusive, difficult or tedious the conditions of the trial proceedings became. We had given our lives to the struggle and we saw it as a sacred duty that standards be kept high. I had given myself to the movement ten years earlier, when I was elected secretary-general in 1949. I remember that when I began in this position, the organisation at first could give me nothing and even when it was able to pay me, I received £5 per month. The hardship that I imposed on my family through my commitment and the burden placed on my wife was enormous, but they never begrudged it because they knew I was completely devoted to the struggle for the liberation of our people.

One of the things that really kept our spirits up was music. Choirs were constantly being organised and you will read later in Helen’s diary of the singing that took place every day in the police van when, for a period, we were held without trial during the State of Emergency in 1960. There were some fine singers in that group and, to this day, those who lived through it can well remember the songs that were sung then.

I should add an explanatory note about the trial itself. It really went along in three stages. The first was the Preparatory Examination when 156 of us, as I have said before, stood trial. Then the trial itself began on 1 August 1958. This was known as the first indictment. This trial lasted a very brief time. A brilliant defence team ran a bus through the holes in the phrasing of the charges and the State was ordered to give particulars on the charges by 15 September 1958. It was effectively unable to do so and the first indictment was withdrawn in October. We had a party to celebrate the quashing of the first indictment.

However, the State was not to give up so easily and it redrafted the charges, paying greater attention the second time to the specifics and a second trial accordingly commenced in January 1959. The number of the accused had been reduced again and only 30 faced the charges for high treason.

All this took place against a background of growing unrest and political instability in the country at large. There was the Alexandra bus boycott in 1957 when, for a few months, men and women sometimes walked as much as 30 kilometres a day to and from work to voice their protest. This was followed by the campaign for a £1 a day. There was also in 1959 a potato boycott, which was launched to demonstrate the complete abhorrence that we, as blacks, felt about the inhuman treatment of so-called convict labour on white-owned farms in the OFS. Then in 1960, Sharpeville, I think, finally convinced the world that the Nationalist government could not be dealt with according to conventional principles of diplomacy. It was in that year that the momentum for an international boycott of South African goods first began; passes were burned and the spirit of defiance was strong throughout the country. At the end of March 1960, a State of Emergency was declared and we, all 30 of us, were detained while the trial went on. Together with our lawyers, we took the decision that, if our lawyers were to be refused access to us, which was the case during our detention, then they would no longer participate. This lasted until August 1960 when our defence team returned after the State of Emergency was withdrawn and we were permitted to consult with them.

Throughout that time the lawyers who defended us were the very best that South Africa could have provided. Isie Maisels, the leader of the defence team, often said that it was, without doubt, the finest assemblage of legal talent ever banded together in one place. Apart from Maisels, there was Bram Fischer, HC Nicholas, Rex Welsh, Sidney Kentridge, Tony O’Dowd, John Coaker, Chris Plewman and David Osborn. Some of these men are no longer with us. I can think of Maisels, Welsh and Fischer. Others served the Bench with distinction, among them Chris Plewman who is a judge of Appeal. Some left the country to enrich other jurisdictions with their wisdom and judgement, and others have remained at the Bar as leaders of their profession. Without doubt, they embodied not only the best in legal competence that it was possible to find, but they also – all of them – represented the very best in liberal thinking. They were, if you like, the dream team. The cross examinations and arguments of Maisels, Fischer and Kent­ridge were breath-taking, so much so that overseas observers were highly impressed.

The 30 accused who faced the last charges did not include all African leaders of importance at the time, but they were distinguished from those already acquitted by their more active and militant rhetoric. The State really wanted, in the ultimate analysis, to show that merely to think about the downfall of the State was to commit high treason. Throughout the period of our trial, Isie Maisels insisted, initially against opposition, that our trial was not going to be fought on the rights and wrongs of the system we opposed; he preferred that it be dealt with only on matters of law because he was absolutely confident in his own mind that a legal basis for the charges was not present in order to establish a guilty verdict.

The State wanted to show that the ANC was violent in nature, that inflammatory speeches by its office-bearers reflected the intentions of the organisation. Furthermore, the State wanted to show that the ANC was a Communist organisation and that the Freedom Charter envisaged a Communist state.

The trial turned out to be a unifying factor, strengthening the ties of friendship between the accused and providing the impetus for the movement thereafter to change from a party that sought to transform the State through peaceful means, to one that thought the only chance of freedom for black people was through armed struggle.

After the trial, some of us went abroad, some went underground, and others remained behind. All of us, however, had been convinced by the sheer vindictiveness of the State’s case and the repressive and systematic erasure of freedom by government that no one in any position of power was listening to the results of, or the evidence in, the Treason Trial. Even our defence team was not unscathed; Bram Fischer went underground and Maisels, disgusted by the Nationalists’ obdurate refusal to recognise the rights of black people, accepted, for a brief period of time, an appointment to the Bench of what was then Southern Rhodesia.

Helen Joseph’s diary of the Treason Trial is not the last word on the trial. It is not a classic legal exposition of the many complex and, at times, boring procedures that took place throughout that long period from December 1956 until March 1961, when we were all found not guilty. Helen’s diary works on another level, that of the human condition and it is something that should be read by everyone who wants to know what it was like at that time, how we survived and who defended us. Much can be learned by the simple and forthright way in which she kept a diary of her days under the whip of one of the most vicious of regimes.

January 1998

Foreword

CHIEF ALBERT LUTHULI

‘What are Kingdoms without Justice but large robber bands?’ St Augustine

Helen Joseph has made an important contribution to the literature of the liberatory movement in South Africa.

The Treason Trial must occupy a special place in South African history. That grim pre-dawn raid, deliberately calculated to strike terror into hesitant minds and impress upon the entire nation the determination of the governing clique to stifle all opposition, made 156 of us, belonging to all races of our land, into a group of accused facing one of the most serious charges in any legal system.

When I used to sit with my co-accused during the dreary, soul-­searing proceedings of the Preparatory Examination, my mind would insistently go back to the great similarity of techniques and methods that marked the nightmare of Hitlerism from which we thought we had emerged barely a decade ago.

The dictatorial minority which ruled South Africa made a desperate gamble when it decided to indict a large section of its opponents for treason. The reason and intention are obvious. In most parts of the world, law and order are still supposed to be the supreme good. Whatever is, is supposed to be right by some strange logic. The universal prevalence of this view shows to what extent humanity is still under the thraldom of mere habit. Innovators and initiators of progressive change are always suspect, and all the more to be dreaded and put out of the way if they are addicted to irresponsible violence or, now­a­days, if they are merely suspected of keeping company with Communism. Nationalist logic was naively simple, almost to the point of stupidity. They would convict us of being Communists, of not only having dark designs to overthrow the State, the established order, by violence, but of actually plotting the means to this end. They would also drive terror into would-be opponents, showing them the high cost of opposition, in the way of disrupted families, insecurity, loss of employ­ment and the host of difficulties which attend such lengthy trials. The Treason Trial would be notice to the world, especially to ‘Communism-haunted’ people of the Western world, that the minority white government of South Africa is indeed a bastion of Western civilisation (whatever that may mean), and a foremost ally in the struggle against Communism.

In its pathetic progress, the trial degenerated into a crude attempt to brand us and our organisations as Communist. But, indeed, as it so often happens, the best laid plans of mice and men gang aft a-gley. This supposed master-move of the then Minister of Justice, this trial to end all trials,