Black man in the white man’s court

2012-11-08 00:00

THERE were two charges against Nelson Mandela. The first was that between April 1 and May 31, 1961, he had incited workers to stay away from work illegally as a means of protesting against the apartheid laws. The second charge was that he had left the country without a valid passport for his visit to other African countries. Mandela was proud to admit that he had organised the stay-at-home by way of protest against a law in which neither he nor his people had any say in making, and he also admitted that he had no passport because the government would not grant him one. He decided to conduct his own defence because, as he told the court, “this case is a trial of the aspirations of the African people”. As the trial would be conducted on a political basis, it was obvious that such a defence could not be put forward by lawyers. The services of counsel were, however, required to assist him with various aspects of the trial. When his first choice, Joe Slovo, was refused permission to leave Johannesburg, to which he was confined by a banning order. Mandela asked me to step in as his legal adviser. In his memoir, written in prison, Mandela recalls: “Joe Slovo was replaced by Bob Hepple, a member of the Congress of Democrats and in whom I had the fullest confidence. He was able and dedicated, and this made the task of conducting the defence comparatively easy for me.”

When I arrived at the court in Pretoria, I was taken aback to find Mandela wearing tribal dress, a kaross (cloak), with a wide bead necklace in the gold, green and black colours of the ANC. I was used to seeing him in court dressed as a lawyer in suit and tie. My reaction was that of a white left-winger who viewed tribal dress with suspicion. This, I thought to myself, is how the Afrikaners want to portray Africans, as still living in a tribal state and not as citizens of a modern, industrial society. Mandela could sense my surprise. “I want our people to see me as a black man in the white man’s court,” Mandela said to me. In his autobiography, he explained: “That day, I felt myself to be the embodiment of African nationalism … the kaross was also a sign of contempt for white justice.”

After I had heard his opening application to the magistrate, I realised that my instinctive reaction to his dress had been wrong. During the hours that we discussed the case, I came to appreciate that Mandela was anxious to embrace the image of a proud African nationalist, to counter the claims of Sobukwe’s breakaway Pan-Africanist Congress (PAC) that they alone were the true patriots. On his recent trip around Africa, Mandela had been alarmed to find that leaders of independence movements in other African countries pictured the ANC as being under the domination of white communists and not as a genuine African organisation.

Mandela and I walked together into the court. The black spectators were thrilled by his kaross and defiant manner. They rose as he entered and shouted “Amandla Ngawethu” (“power is ours”) and Shosholoza Mandela (“struggle on, Mandela”).

Mandela made an application for the recusal of the senior regional magistrate, Mr W.A. van Helsdingen, whom Mandela knew from legal practice. Characteristically, he made it clear that this was no personal reflection on the magistrate’s integrity. He put forward two grounds for recusal which he knew full well had no legal basis, and which I could not have advanced if I was speaking as counsel. Van Helsdingen tried twice to interrupt him, saying that he was going beyond “the scope of the proceedings”, but Mandela persisted and was allowed to continue. His aim was political, to make it clear from the start of the proceedings that he intended to put the white state on trial. The first ground was that, as a black man, he could not be given a fair trial in a white man’s court: “Why is it that in this courtroom, I face a white magistrate, am confronted by a white prosecutor, and escorted into the dock by a white orderly? Can anyone honestly and seriously suggest that in this type of atmosphere the scales of justice are evenly balanced?” The second ground was that he considered himself neither legally nor morally bound to obey laws made by a Parliament in which he had no representation. The prosecutor barely bothered to reply, and Mandela’s application was summarily dismissed. He had set the tone — white supremacy was on trial. He pleaded not guilty to both charges.

Two incidents during the trial illustrate Mandela’s most basic quality, his sense of empathy — the ability to identify what another person is thinking or feeling and to respond to his or her thoughts and feelings with an appropriate reaction. The first is his attitude to Van Helsdingen. Louis Blom-Cooper, a British barrister, was attending the trial as an observer for the human rights organisation Amnesty. Late on the second day, he told me that he had seen the magistrate going off in a car for lunch with two special branch detectives, one of whom was a state witness, while the other had been assisting the prosecution. I told Mandela that he had good legal grounds for asking Van Helsdingen to recuse himself. Mandela was hesitant. He had refused to recognise the authority of a white magistrate, appointed by a government in which as a black man he had no say. His defence was political and not based on accusations of personal bias. He was worried that an attack on the magistrate’s integrity might detract from the political nature of his defence. I argued that an exposure of the cavalier attitude of the magistrate to the ordinary proprieties of a fair trial would support Mandela’s case that the white man’s court was contemptuous of the rights of a black defendant. Mandela was persuaded by this argument, and decided to make an application for the magistrate’s recusal. But he said to me: “I have nothing against Van Helsdingen personally, and I do not want to embarrass him. Please go and see him before the hearing resumes and tell him what I am going to do, that it’s not meant personally.” I was astounded that he put the feelings of the magistrate, who was about to send him to prison, above the advantage which he could gain by taking him by surprise in open court. When I carried out my instructions and spoke to Van Helsdingen in his chambers, he went red in the face and spluttered to me that he had not discussed the case with the officers, and that they were merely escorting him for his protection. When Mandela made the application in open court, he emphasised that he had a high regard for the magistrate as a person but “I am left with the substantial fear that justice is being administered in a secret manner”. Van Helsdingen refused to step down and the case continued.

The other incident concerned the prosecutor, Mr J.P. Bosch. On the morning of the day Mandela was to make his closing speech, we were consulting in his room. There was a knock on the door. It was prosecutor Bosch: “I’d like a private word with Mandela.” They knew each other from the days when Mandela practised in the Johannesburg Magistrates’ Court. “Don’t be crazy”, I said, “you can’t speak to him alone in the middle of a trial.” But Mandela intervened and said he did not mind. He asked me to wait outside. I left them. When Bosch came out of the cell about five minutes later, I saw tears streaming down his face. I asked Mandela: “What the hell’s going on?” He replied: “You won’t believe this, but he asked me to forgive him.” I exclaimed: “Nel, I hope you told him to get stuffed.” To my surprise, Mandela responded: “No, I did not. I told him I knew he was just doing his job, and thanked him for his good wishes.”

The qualities of understanding and empathy that Mandela displayed during his trial were to stand him in good stead in the long years’ of his imprisonment, and in the negotiations for a democratic South Africa. In those years, he also needed the iron will and unshakeable belief in his cause that he displayed when he went underground.

On November 7, the magistrate found Mandela guilty on both charges. Mandela’s closing speech gave him another opportunity to challenge white supremacy. The speech prefigured the more famous statement from the dock that Mandela made in the Rivonia trial in 1964. It signalled that a new type of leader, a professional revolutionary, had emerged for an armed and dangerous phase of the struggle for democracy.

Mandela was given the maximum sentence on each charge, five years in all. But he was not to re-emerge from prison for more than 27 years.

 

 

• Young Man with a Red Tie: a memoir of Mandela and the failed revolution 1960-63 by Bob Hepple will be published in 2013.

 

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