APPENDIX 6

THE OBSERVER'S REPORT ON THE STATE V. TUHADELENI AND OTHERS" BY RICHARD A. FALK, FROM "EROSION OF THE RULE OF LAW IN SOUTH AFRICA," PUBLISHED BY THE INTERNATIONAL COMMISSION OF JURISTS, AUGUST 1968

INTRODUCTION

What follows is a report on my experience in South Africa on behalf of the nternational Commission of Jurists as an Official Observer of the trial of thirtyive (originally thirty-seven) South West Africans charged with engaging in various terrorist activities. I was in South Africa between February 1 and 8, 1968. During this period the court was in session only twice, once to hear evidence and rgument in mitigation of guilt and once to sentence the convicted defendants. I have received assurances from several regular attenders at court that the proceedings that I observed were characteristic of the trial as a whole. I took the opportunity during my eight days in South Africa to talk about the trial with many people of diverse outlook.

First of all, I made a successful effort to discuss the trial with each member of the Defence Team. They were very helpful to me. Secondly, I requested and received permission to see Judge Ludorf, the presiding judge, Judge Ludorf received me in his chambers for tea on Friday, February 1, 1968. We did not have the opportunity to discuss the trial in any great detail. Thirdly, I made an effort to discuss the litigation with the chief prosecuting attorney, Mr. Oosthuizen. He was pleasant in casual conversation, but suggested that it would be more appropriate if I were to discuss the case itself with the Attorney General for the Transvaal, Mr. R. W. Rein. Accordingly, I called Mr. Rein for an appointment and we agreed to meet on Friday, February 8, after the trial session at which the defendants were scheduled to be sentenced. In court on February 8, Mr. Oosthuizen informed me that Mr. Rein had decided that he should not meet with me, but that the Minister of Justice, Mr. J. Pelser, would be glad to receive me. Mr. Pelser was in Cape Town as the South African Parliament had opened during the week of January 29, I attempted to reach Mr. Pelser by telephone, but was unable to do so, although I did leave a message saying that I was sorry not to have known earlier of his willingness to meet with me to discuss the case. I was, of course, prepared to go to Cape Town to talk with Minister Pelser but I did not receive word of his willingness to receive me until the last day I was able to remain in South Africa.

Fourthly, I requested and was refused permission to visit the defendants in prison or elsewhere. In the courtroom I was not permitted to talk with the defendants, although it appeared evident that, upon being told who I was, they were eager to talk with me.

During my period of observation in South Africa I was not molested in carrying out my activities in any way. I was left entirely free and was not subject to any special surveillance when entering or leaving the country. I remained in Johannesburg during my period in South Africa except for the two days when I went by car to Pretoria because the court was in session.

My report will be confined mainly to the results o fmy observations. However, it will include a brief narrative of the overall trial proceedings and it will also try to put the proceedings observed in open court in a larger setting bearing on whether and in what respects the requirements of the rule of law were abridged. I wish to call the attention of readers of this report especially to the Statement by Toivo Herman Ja Toivo, delivered under oath in court on February 1, 1968; it expressed in very direct form what I was told by several to be the sentiments of the defendants as a group. The statement by Mr. Ja Toivo was given wide publicity in both the English-speaking and the Afrikaans press of South Africa, and many South Africans with whom I talked regard it as a statement of historic importance.

A SUMMARY NARRATIVE OUTLINE OF THE TRIAL

South African police have evidently made numerous arrests (estimates range from 100 to 250) since 1966 of South West Africans accused of participating in or alleged to have information about guerrilla activity in Ovamboland, South West Africa. These South West Africans have been detained incommunicado, in prisons evidently located in South Africa, often being held for many months, without access to family or lawyer and without being charged or brought to trial. It is uncertain how many South Africans are presently detained in South African prisons on this basis. The defendants in the Terrorist Trial at Pretoria were all held for long periods on this basis.

On June 22, 1967 Mr. R. W. Rein, the Attorney-General of the Transvaal, announced that thirty-seven South West Africans were to be charged with terrorist activities and would be tried in the Pretoria Magistrate's Court in a summary trial without a jury. Among the thirty-seven men arrested were several leaders of the South West Africa People's Organization (SWAPO), including its Acting President, Mr. Nathaniel Maxuiuiri, the Acting Secretary-General, Mr. John Otto, the Secretary for Foreign Affairs, Mr. Jason Mutumbulua, and Mr. Toivo Ja Toivo, the Regional Secretary for the North. The defendants had various occupations, although most of them were ordinary labourers.

The defendants were charged with conspiracy to overthrow the existing government of South West Africa and to replace it with a government constituted by SWAPO members. Eighteen of the defendants were accused of leaving South West Africa to receive guerrilla training in various foreign countries, including Tanzania, Ghana, the United Arab Republic, Algeria, and the Soviet Union. It was also alleged that most of the defendants had participated in guerrilla training activities in a camp set up at Umgulumbashe in South West Africa and that fire-arms had been procured abroad and illegally brought into the country. Furthermore, the conspirators were charged and held responsible for some isolated incidents of violence, such as an attack on a small administrative settlement at Oshikango, an attack on an Ovambo headman friendly to the present South West African government in which one of his bodyguards was killed and two others were wounded, an armed assault against a farm, and resistance to arrest that resulted in wounding two policemen. These incidents were alleged to result in some property damage and injury, which evidently led to the death of at least one man, a bodyguard of the chief. The Prosecution had in its possession elaborate documentary proof of its charges, some of which was said to be captured at the time when these and other defendants were arrested. There was also presented to the Court oral testimony by thirteen witnesses who were treated as accomplices and whose testimony was confirmed by documentary evidence and exhibits, including some expert witnesses. In addition, many of the accused after prolonged periods of solitary confinement in jail signed written confessions. The overall conspiracy was alleged to involve at least eighty-two individuals additional to the original thirtyseven defendants, and it was never made very clear in the prosecution or judgment as to which defendants were guilty of which overt acts.

The defendants were charged under the Terrorism Act, No. 83 of 1967, promulgated officially on June 21, 1967, the day before the charges were officially made. Conviction under the Terrorism Act requires the sentencing judge to impose a minimum sentence of five years; death by hanging is the maximum sentence. The defendants were also charged, in the alternative, with violating two provisions of the Suppression of Communism Act of 1950 (as amended by the General Law Amendment Act, No. 62 of 1966), conviction carrying prison sentences of one to ten years. After the State had closed its case, the three political leaders of SWAPO (Maxuiuira, Otto, and Mutumbulua) withdrew their pleas of not guilty and elected to plead guilty under the Suppression of Communism Act to avoid the higher sentences of the Terrorism Act. The Prosecution had agreed to withdraw the latter charges in exchange for entry of pleas of guilty to the alternative charges proffered under the Suppression of Communism Act.

The Terrorism Act provides that any person who commits certain specified acts shall be guilty of the offense of participation in terrorist activities.

On June 27, 1967, the thirty-seven South West Africans were arraigned before a magistrate's court in Pretoria and were asked about their arrangements for legal defence. Jason Mutumbulua emphasized, on behalf of all of the accused, that the defendants were thousands of miles from their homes and asked that the trial be held at Windhoek, South West Africa. The Magistrate is reported to have said that the Government order to hold the trial in Pretoria could not be challenged

or changed. Mr. Mutumbulua said that the defendants were not prepared to conduct their own defence, but wanted the benefit of pro deo counsel. At considerable difficulty, non-state appointed counsel was secured for the defence. It is very difficult to fund the defence of individuals accused of political crimes in South Africa. South African sources are intimidated and the receipt of external funds is regulated very stringently. For instance, the Defence and Aid Fund, an organization that had been effective during the 1950s and early 1960s in raising funds for legal defence in political trials has been a "banned organization" in recent years. One effect of banning is to make it illegal to receive funds from such a tainted

source.

In the Tuhadeleni trial, at an early stage, the pro-Government press hinted that, in fact, the defence was being paid with Defence and Aid money being transmitted in disguised form. Mr. Phillips, the head of the Defence Team, felt obliged by these rumours to volunteer that the legal fees were being borne by a single wealthy British benefactor who preferred to remain anonymous.

Because the atmosphere in South Africa is so hostile to the alleged perpetrators of political crime, lawyers cannot undertake to provide legal defense in trials of this sort unless paid according to a schedule of maximum counsel fees. That is, the decision to participate in the legal defence must appear to represent a purely professional involvement, and be purged of any element of possible sympathy with the cause or situation of the defendants.

South Africa has a divided bar consisting of attorneys and barristers. Mr. J. Carlson acted as the instructing attorney who selected the barristers and kept direct contact with the accused in prison throughout the trial. Mr. N. Phillips, a respected barrister of the highest rank, Senoir Counsel (formerly Queen's Counsel), acted as head of the Defence Team. In addition to Mr. Phillips, there were several well-regarded Junior Counsel who participated throughout on the Defence Team, G. Bizos, E. M. Wentzel, and D. Kuny. The Defence Team was also aided by Mr. John Dugard, Senior Lecturer at the Law School of the University of Witswatersrand, who served as an adviser, especially with reference to the international law points raised by the challenge directed at the jurisdiction of a South African court to hear a criminal case involving the administration of South West Africa.

The trial started in Pretoria on August 7, 1967. Mr. Phillips raised the jurisdictional issue at once in application to the court for a postponement. In particular, Mr. Phillips suggested to the court that he would argue that the South African Parliament lacked the legislative competence to apply the Terrorism Act to South West Africa, especially in light of the fact that the Act was promulgated after the Mandate had been terminated by the United Nations General Assembly in resolution 2145 (XXI) of October 27, 1966. Mr. Phillips also argued at this preliminary stage that the Terrorism Act did not apply to South West Africa because the Territory had not been included as part of the Republic of South Africa in the constitution. Mr. Phillips also asked for more particulars as to the alleged role of SWAPO in directing "the conspiracy" and stressed the difficulty of obtaining evidence on behalf of the defendants given, the complexity and geographical remoteness of the relevant conduct. The activity complained about in the indictment stretch over a five-year period, it included occurrences in several countries, and it involved quite different allegations of participation for the various defendants.

Judge Ludorf granted the defence an application for postponement and scheduled resumption of the trial for September 11, 1967. At that time written and oral arguments were presented on the jurisdictional issues involving the competence of the South African Parliament to legislate with respect to South West Africa and of a South African court to adjudicate with respect to alleged offences under the Terrorism Act. On September 12, 1967 Judge Ludorf adjourned the trial for three more days to allow himself time to come to a decision on the jurisdictional plea ad limine.

On September 15, 1967 Mr. Justice Ludorf handed down an opinion upholding the jurisdiction of the court to proceed. In essence, Justice Ludorf held that a court in South Africa possessed no competence to question legislation validly enacted by Parliament and, therefore, could not consider the merits of the defence plea. Furthermore, the alleged termination of the Mandate by action of the General Assembly had no internal legal effect in South Africa until the South African Parliament had accepted it. Without such an acceptance the contention that the termination of the Mandate precluded Parliament from legislating for

South West Africa could not be judicially entertained. Finally, Justice Ludorf suggested that there was no conflict between the Terrorism Act and the entrenched clauses of the South African Constitution (which bear only on the character of official languages).

At this point the defendents were formally charged and pleaded not guilty to all charges. On September 18, 1967 the Court began to receive documentary evidence and to hear witnesses. The prosecution, in effect, contended that the terroristic activities of these defendants were part of an overall effort to wage "war" in South West Africa on the white population and on the existing system of political administration. During the trial, on October 12, 1967, one of the defendants, Ephraim Kaporo, died of natural causes in hospital. While in hospital he evidently pleaded guilty to receiving military training in South West Africa and to possessing weapons. Mr. Justice Ludorf formally found Mr. Kaporo to be guilty, but decided to postpone any sentence until the trial was over.

On November 17, 1967 the prosecution completed its presentation of evidence. At that time one of the defendants, Mr. Mateus Joseph, was found not guilty and discharged. On that day also Messrs. Maxuiuiri, Otto, and Mutumbulua changed their plea to "guilty" under the second alternative charge, violating the Suppression of Communism Act. The Prosecutor at this time asked that these three defendants be acquitted of the charges brought under the Terrorism Act. The defence produced no evidence to rebut the basic charges of the prosecution. Another adjournment was granted until December 12, 1967. At this time Mr. Phillips advised the court that the thirty-two remaining defendants would have to be convicted under the main charge of "terrorism", as each had done something that clearly contravened the Terrorism Act. However, Mr. Phillips argued that not each of the defendants should be held responsible for what the others had done, but should be punished in terms of the extent of individual participation. Mr. Phillips invoked precedent to argue that, for instance, the defendants who had received military training in South West Africa should not be held responsible for the separate violation of the Act entailed by leaving South West Africa to receive military training abroad.

After the hearings ended an application was made to the Pretoria Supreme Court on behalf of Gabriel Mbindi, a prisoner detained on suspicion of terrorism, aged sixty-eight, alleging that Mbindi had been a victim of physical mistreatment and assault by the police, especially in the course of interrogations conducted by the South African Security Police known as the Special Branch. It is worth stressing that Mbindi as a detainee under the Terrorism Act had no means of access to court or counsel. Even the application on his behalf had to be narrowly drafted to enjoin mistreatment and torture without adding any claim of being entitled to release from detention. Section 6 of The Terrorism Act makes a detainee ineligible for release regardless of abusive circumstances, or arbitrary basis of detention. The Mbindi application sought protection from further assault and was supported by affidavits drawn by four of the accused in the Terrorist Trial, two of which included indications that they too were victims of similar assault. Hearings on the Mbindi application were postponed by the court on the surprising ground of their non-urgency. Mbindi was subsequently released without public notice and secretly returned by the police to South West Africa. Since his release Mbindi has himself filed a complaint about his experience of torture in a South African prison. The status of this proceeding remains uncertain at this time.

In January 1968 Mr. Justice Ludorf delivered the judgment of the Court. At that time he found thirty defendants guilty as charged of violating the Terrorism Act. Certain general findings were made that accepted the main allegations, including the finding that SWAPO “had gone over to the planning of a violent revolution in the territory of South West Africa with the purpose of overthrowing the sovereign authority of the Republic in that territory, and that in order to further this aim they had proceeded to have persons trained for a Communist political view and also trained in the art of armed and violent terrorism." The judgment went on to say of the defendants' conduct that "It has also been proved that these conspirators afterwards committed violent, although mostly cowardly, actions in the territory to further their aim. Their actions were feeble and without the slightest hope of success, but probably inspired with the hope that powers from abroad would rush to their aid, because in the United Nations Organization there are so many people who incite to violence against the Republic and who make themselves heard in such a loud manner."

Subsequent to the Judgment Mr. Justice Ludorf made a statement in open court outlining his conception of the crime and indicating his decision not to impose the death sentence. The main paragraphs of this statement are as follows.

In my view, it has been proved that the accused, because of the level of their civilisation, became the easily misguided dupes of communist indoctrination. Had it not been for the active financial and practical assistance which the accused receive from the Governments of Moscow, Peking and other countries, they would never have found themselves in their present predicament. I also think that had it not been for the loud-mouthed support and incitement by representatives of foreign countries and the persons who published SWAPO newsletters, who have absolutely no respect for the truth, the accused would never have embarked on their futile and ill-conceived exploits.

It also weighs with me that all the crimes whereof the accused have been convicted on the main count were committed before the Act was passed by Parliament, and that this is the first Trial in which persons are charged with contravention of the Act because of the retrospective effect thereof.

For these reasons I have decided not to impose the death penalty in the case of any one of the accused. I will, however, take into account the common law offences which the accused have been proved to have committed in the assessment of the appropriate sentence, although they were not so charged.

Hearings were resumed at the end of January 1968 and consisted mainly of statements and arguments in mitigation of the prospective sentences. Mr. Ja Toivo's Statement was made at this time. In essence, Mr. Phillips for the Defence tried to draw attention to the lower degree of involvement of some of the defendants, as a consequence of their action being confined to receiving small amounts of training and not including involvement in violence. Mr. Phillips also asked the Court to take into consideration the fact that these defendants were largely uneducated and that they were hence easily vulnerable to propaganda and manipulation, especially by the simple teachings of allegedly Communist agitators abroad. Mr. Phillips also tried to show that the three political defendants were men who had learned their lesson, had endured enough punishment, and, in any event, always had severe misgivings about violent opposition to South African rule in South West Africa.

Mr. Oosthuizen, for the Prosecution, emphasized the defiant character of Mr. Ja Toivo's statement, which he contended displayed no proper sense of remorse and which maintained a spirit of opposition to existing arrangements for governing South West Africa. Mr. Oosthuizen also contended that the defendants were hypocritical as they now denied their advocacy of violence or their encouragement of racial enmity.

On February 8, 1968 Mr. Justice Ludorf imposed sentences upon the convicted defendants. Nineteen of the defendants were sentenced to imprisonment for "the rest of their natural life" (i.e. not eligible for parole), nine were sentenced to twenty-year prison terms, and two received a minimum sentence of five years. Subsequent to the mass sentencing of February 9, Michael Ifingilwa Moses, who became ill during the trial proceedings, was convicted as a "terrorist" and sentenced to life imprisonment. In addition, the three leaders of SWAPO who had entered pleas of guilty to charges of violating the Suppression of Communism Act were given five-year sentences, of which four years and eleven months were suspended provided there was no further conviction within three years. Mr. Justice Ludorf reiterated his conclusion contained in the verdict that the proof clearly demonstrated that each of the convicted men was a willing and active party in a plan to wage war against South African administration of South West Africa and that these individuals had acted in a cowardly fashion, attacking innocent people at night and doing unprovable damage to the property of others. Mr. Justice Ludorf also appeared to endorse Mr. Oosthuizen's response to the statement of Mr. Ja Toivo, describing it as directed toward "the outside world" and not of any importance in clarifying those considerations that might warrant a reduced sentence. Furthermore Mr. Justice Ludorf indicated that he would not take into account considerations bearing on the age, health, or family responsibilities of those defendants being sentenced. In passing, Mr. Justice Ludorf also indicated that in the future South African courts would not shrink from imposing the death penalty and that potential defendants should heed this warning.