Mr. Phillips for the Defense indicated that he wished to enter notice of appeal on the jurisdictional phases of the judgment. At present writing leave to appeal on the jurisdictional issues has been granted, but leave to appeal the harshness of the sentences has been denied. Argument on the appeal is expected to take place in Bloemfontein before the Appellate Division of the Supreme Court of South Africa, the highest court of appeal, starting on August 20, 1968.

A second terrorist trial against an additional eight South West African defendants was announced on February 28, 1968. As of July 1968, however, nothing has been done to initiate formally the proceedings. The South African police continued to hold an indeterminate number of South West Africans in secret detention as potential witnesses or defendants.

Throughout the Tuhadeleni trial organs of the United Nations have issued various kinds of protests and objections. These activities of the United Nations are summarized in a letter from the President of the UN Council for South West Africa to the President of the Security Council. Various private organizations also issued resolutions in opposition to the statutory and jurisdictional terms of reference. It is especially impressive that the distinguished organization of lawyers, The Association of the Bar of the City of New York, issued a strongly phrased resolution in protest and objection. The City Bar Association rarely takes an active position on controversial legal matters and it is indicative of the depth of indignation produced by these trials that such criticism was forthcoming from such a conservative source.

It may be of interest that the Prime Minister of South Africa, John Vorster, was reported as having responded to US and UN objections to the trial in a public address by stating that "South Africa will not allow anything or anybody to interfere with this trial." Mr. Vorster also said at that time that South Africa had the sole responsibility to maintain order in South West Africa and that it would never abandon that responsibility.

OBSERVATIONS ON THE TRIAL

It is difficult to assess the Tuhadeleni "terrorist" trial from the perspective of the Rule of Law. What took place in open court was only a small, visible fraction of the overall relationship between the South African Government and those who oppose South African rule in South West Africa. It is essential to understand that the South African Government denies black inhabitants of South West Africa any opportunity for personal development or meaningful participation in planning their personal and collective destiny. There are no realistic possibilities to work for peaceful change in South West Africa; any political activity, especially if it includes challenging prevailing racial policies, is soon branded as "Communistic" and subject to suppression as criminal conduct. The three so-called "political prisoners" (Maxuiuiri, Otto, and Mutumbulua) are clear examples of African opponents of South Africa's racist rule being treated as "Communists" and as criminals. Opposition to apartheid in any politically serious way is treated by the South African Government as a crime.

In South Africa the Tuhadeleni trial was generally referred to as "The Terrorist Trial". The statute, too, is called The Terrorism Act. In application and intention, however, the statute seeks to punish severely any political action that is designed to change either white domination or the system of apartheid in South Africa or South West Africa. In light of this reality, it seems questionable to adopt the South African official rhetoric labelling defendants such as these as "terrorists." In contrast, of course, is the mode of description accorded these defendants by external liberation groups concerned with promoting political change in South Africa. For these groups the defendants are "freedom-fighters" rather than "terrorists" and their activity is "liberation" rather than "terrorism." Naturally, both sets of terms prejudge the legal and moral quality of the conduct, and are best avoided in analysis that aims above all at objective reporting.

The extra-legal environment is also relevant. The policies of the South African Government seem designed to demoralize totally the African inhabitants. An elaborate system of African informers is relied upon both to cripple political action and to humiliate Africans in the eyes of each other. The daily administration of so-called Bantu regulations, involving "pass books", and "influx control", and "trespass" assures the humiliation of most Africans, and virtually makes a criminal class of the entire African population. Those South West Africans unresigned to South African domination exist in a condition of virtual hopelessness. South Africa has both refused to cooperate with the United Nations in any serious way

and has refused to make any voluntary adjustments in its racial policies as a consequence of the repeated condemnations of apartheid as a social, economic, and political basis for the administration of South West Africa.

The judgment in The South West Africa Cases by the International Court of Justice in June 1966 deciding that Ethiopia and Liberia failed to possess the requisite legal interest to complain about South African administration of the mandated South West Africa extinguished the final glimmer of hope for the defendants later prosecuted in the Pretoria trial. Evidence was presented while I was in the court suggesting that several of the defendants turned toward insurrectionary violence in 1966 soon after discovering that the International Court of Justice would not provide them with any prospect for redress of their grievances. Several of the defendants were actually listening to the judgment "in the bush" and were evidently led to pursue "illegal" and violent remedies after this last prospect for international relief was brought to an end. Many white South Africans agreed that the judgment of the World Court was both unexpected and "the biggest break South Africa has had in years". I mention this part of the setting because it bears strongly on the motivation of the defendants and on an assessment of the reasonableness of their willingness to receive guerrilla training inside and outside of South West Africa.

The conduct of the trial itself appeared to conform with procedural standards suitable for criminal litigation in many respects. The judge was polite to the Defence Team and appeared to be diligent about conducting the trial in accordance with normal and fair rules of criminal procedure. Even the prosecutor was friendly toward the Defence Team, cooperative in working out compromise arrangements such as dropping the indictment for terrorism against the political prisoners in exchange for their entry of pleas of guilty to the charges of violating the Suppression of Communism Act.

Despite this facade of legal propriety there were several disturbing features that I observed during my period in court. For one thing, the defendants were referred to by number rather than by name, each was assigned a number that was pinned to his shirt or jacket. I was told that this impersonal mode of reference would not have been used if the defendants had been white people. The use of numbers rather than names is consistent with the general depersonalization and dehumanization of Africans that pervades every aspect of apartheid as an operative system of racial administration. It was disturbing in the courtroom context that even the lawyers for the defence acceded to this unfortunate practice and did not, so far as I know, object to it.

Each trial day the prisoners were taken back and forth from the Pretoria Jail in a large van. This van delivered the defendants to a cage that had been placed in a small enclosed courtyard next to the court, a converted old Jewish synagogue. The defendants were brought to this cage about thirty minutes before the court was scheduled to begin its session. They were crowded into the cage. It was mid-summer in Pretoria, very humid and uncomfortably hot. Outside the cage were a large number of uniformed policemen carrying sten guns or holding onto aggressive police dogs. These dogs were trained to bark furiously at the smell or sight of Africans. The prisoners were led through a gauntlet of police and barking dogs from the cage to the courtroom about ten minutes before Justice Ludorf was due in court. The lawyers for the defence told me that many (if not all) of the defendants were terrified by this daily experience. I stood in the yard and was very frightened by the generally menacing quality of the scene.

In the courtroom very elaborate security arrangements prevailed. There were between twelve and fifteen uniformed police carrying sten guns. In addition, several of the prominent members of the Special Branch were in attendance, including those officers who had used brutal means to carry out the interrogations during the periods when the prisoners had been confined to prolonged solitary detention. The atmosphere of the court was very much dominated by these security features which appeared to have some intimidating effect on the defendants and even on their counsel.

During the trial itself the defendants, or most of them, had no sense of what was taking place. The trial was conducted in English and Afrikaans, whereas the defendants only spoke native languages. There was an interpreter present but he translated what was being said in court only if evidence in the form of testimony was being presented or the defendants were themselves being addressed. The legal argument and procedural exchanges were not translated. The failure to provide defendants on trial for their lives with a continuous translation of the full proceedings seems to be a cruel and scornful ingredient of such a prosecution; an

incomplete rendering of the proceeding might also produce substantive injustice to the extent that the opportunity for a defendant to react to accusation, evidence, and testimony is seriously hampered. The full consequence is to limit seriously the advantages to a defendant of an open trial.

From an observer's perspective, a final element of the trial that is notable concerns the degree to which the Defence Team felt obliged to accept the major premises of the prosecution. These major premises included their acknowledgment of the legality and legitimacy of apartheid and of South Africa's right to administer and govern South West Africa. This central acknowledgment also led the Defence to accept the legal, moral, and political propriety of punishing anyone who challenged the legitimacy of South African rule. The Defence stressed the low education and the consequent vulnerability to Communist propaganda of the defendants as a basis for mitigation of sentence. In so many words, the Defence told the court that the defendants had "learned their lesson" and, hence, as repentant and misguided individuals, deserved lenient treatment at the hands of the court. As an observer, I found this narrow framework of argument and defence very disturbing as it conceded the validity of the state's basic legal position (the Defence did not seriously dispute allegations of fact against the defendants). It was quite plain, as indicated by Mr. Justice Ludorf's emotional language in the judgment condemning the course of conduct of the defendants, that any more direct effort to question the basis of the prosecution might have produced harsher sentences. And, in fact, it was generally speculated that Mr. Ja Toivo's statement from the box-supposedly in mitigation-caused him to receive a more severe prison sentence because it failed to adopt a conciliatory tone of remorse, but maintained strongly his sense of righteous opposition to the wisdom and decency of South Africa's administration of South West Africa. The tactical limits of effective defence, then, were defined by arguments that were designed to show either a relatively low degree of involvement and complicity on the part of a particular defendant or that emphasized a present sense of remorse and repentance. These limits are much narrower than their potential legal case which rested on the jurisdictional incompetence of a South African court to prosecute South West Africans and on the substantive injustices associated with white minority domination and its implementing strategy of apartheid.

CONCLUSION

I would like to hazard some general concluding comments. These comments are made in the spirit of tentativeness. My visit was short, the political setting intricate, and the perceptions of South Africans often contradictory. These comments will concentrate upon inferences drawn from my experience as an observer at the trial.

1. I am convinced for several reasons that a large number, if not all, of these defendants were tortured in prison. An extended period in solitary confinement itself approaches torture, but the Special Branch used interrogation methods that involved active forms of torture including beating and frightening the defendants in horrible ways. My conclusion is reached by talking with several people who had contact with prisoners. It is also confirmed by the Mbindi proceeding in which an application for an injunction was filed on behalf of a South West African detainee in the Pretoria prison. This application was supported by the depositions of several defendants in the Tuhadeleni proceedings submitted in response to police denials of torture. These affidavits indicated, as well, the routine character of torture in the prisons of Pretoria. I also spoke at length to Mr. Laurence Gandar, Editor, The Rand Daily Mail, who has been criminally indicted because he exposed the practice of torture in South African prisons. In addition, I spoke with an African who described to me the torture-involving beating and electric shock-that he experienced in a South African jail; according to this friends this poor man was "broken" in spirit permanently by the horror of his prison experience.

The reality of prison torture contrasts with the unadvisability of registering such a complaint. It was generally agreed that to complain about torture in the setting of the terrorism trial would inflame the prosecution and the judge. It was not in the best interest of the defendants-on trial for their lives-to assume this risk in an atmosphere of oppression such as prevails in South Africa.

2. There are widespread reports that as many as 250 additional South West Africans are being held in secret detention under the provisions of the Terrorism Act. These individuals are held incommunicado. As far as the outside world

(including their own family) is concerned they have disappeared unless their arrest was observed by others. The reliance on unlimited detention in solitary confinement-without being charged with an offence is a flagrant violation of the Rule of Law, even without torture.

3. Of course, this violation is aggravated by the fact that South Africa is exercising its authority to arrest in South West Africa, an internationally safeguarded territory which from the standpoint of the international community has been permanently withdrawn from South African jurisdiction. The United Nations, not South Africa, has the legal basis for regulating the life of the territory. Therefore, from an international point of view South Africa must be viewed as extending its objectionable security legislation to a foreign country over which it is no longer empowered even to erect legal authority for the benefit of the inhabitants.

4. The Tuhadeleni trial and the expectation of additional so-called terrorist trials appear to be part of an overall drift toward totalitarianism in South African society. The role of the Special Branch in staging the trial is especially ominous in this regard, as is the holding of the proceedings in Pretoria, rather than in South West Africa. The role and reputation for brutality and ruthlessness of the Special Branch may possibly have had an effect on the gathering and presentation of evidence by the defence. It is also impossible to assess whether the involvement of the Special Branch in a trial of this sort might make it difficult to obtain defence witnesses or to assure their freedom from some kind of reprisal. Rumours abound in South Africa about the vindictiveness of the Special Branch, as well as about its police methods and totalitarian affinities. Naturally, it is hard for an outsider to assess such rumours, but it did seem clear from my observations in court that prominent members of the Special Branch behaved in a rather sinister fashion and evoked the fear of white South Africans of liberal persuasion. The most reasonable interpretation of these obviously deliberate choices appears to be an effort to convince the majority of the white population that a state of war exists in South Africa between the regime and its enemies; and that, as a consequence, a condition of emergency prevails such as to vindicate extreme police methods to stifle opposition of all varieties. The trials with their fanfare, then, must be understood as efforts by the Government of South Africa to consolidate still further its claims of dictatorial powers.

APPENDIX 7

ARTICLE FROM "OBJECTIVE: JUSTICE," A QUARTERLY MAGAZINE COVERING UNITED NATIONS ACTIVITY AGAINST APARTHEID, RACIAL DISCRIMINATION AND COLONIALISM, VOLUME 6, No. 1, JANUARY/FEBRUARY/MARCH 1974