Denis Kuny: unsung hero
Denis Kuny probably defended more anti-apartheid activists than any other advocate in South Africa. The irony is that he has hidden behind a wall of humility, refusing to take credit for a lifetime spent taking on the apartheid state.
But Kuny was right there in the trenches with George Bizos, Arthur Chaskalson, Ismail Mohammed, and Vernon Berrange - as one of the great South African legal minds who fought for justice amid the horrors of apartheid South Africa.
There are very few interviews that have been conducted with Kuny who has just celebrated his 87th birthday at Liliesleaf, with a remarkable cast of characters from the struggle days, and the few remaining advocates and attorneys of his era. Kuny has shied away from the limelight, and remains reluctant to even talk about just how many freedom fighters he defended from 1960 into the 1990s.
“Had we not been there I have little doubt there would have been many more convictions and much heavier sentences. There were many convictions, but there were also acquittals and successes on appeal,” Kuny tells me. He has a razor sharp mind and can remember the most intricate details of his defence trials that range from Bram Fischer and Herman Toivo ya Toivo, to Steve Biko and Tokyo Sexwale, and other high profile activists in-between.
While Kuny showed immense bravery, skill and tenacity defending the human rights of South Africans from across the liberation political spectrum, he refused to ever join a political party himself. While Kuny might say that he was not political, most trials he took on for decades were political. He had practices going not only in South Africa, but Swaziland, Botswana and Lesotho. He was the highly sought-after advocate who moved through the frontline states, defending whomever was fighting injustice and oppression. It is dumbfounding how he has kept himself so much in the shadows when his life had all the drama of a box office movie.
The Night Kuny Drove Madiba to Natal in 1961
Let us start at the beginning with one of my favourite stories about Denis Kuny, one he was, of course, quite shy to tell. It was the night when Nelson Mandela was the chauffeur and Kuny was the passenger in the back seat, which is how they drove together from Johannesburg to Ladysmith in the middle of the night in 1961. Madiba had just come back from his travels in Africa, and needed to have secret meetings in Natal to engage the underground ANC structures. Joe Slovo was tasked with finding the most trustworthy person to accompany Mandela to Natal, and he chose Denis - the very quiet yet absolutely reliable young advocate.
And so it happened that Denis waited for hours at a petrol garage at midnight for Jack Hodgson to deliver Mandela to him. “Of course I had told Joe that I couldn’t use my own car which was an old Ford Anglia, and so my friend and colleague Arthur Chaskalson had to lend me his car,” Denis recalled. Denis respectfully had not made much attempt at conversation with Madiba over the four-hour journey, given the sensitivity of the situation and the practice of not asking questions that one did not need to know. It was enough to be entrusted with the task, and once Madiba was safely deposited with his comrades, Kuny drove the car all the way back to Johannesburg the very same night.
“The danger of the journey never occurred to me at the time. It would have been very serious if I, as an advocate from the Bar, had been found driving Mandela, the State’s most wanted man, to Natal. Just a month later Madiba had been travelling with a white man Cecil Williams in Howick, and both were arrested,” Denis reflected.
Thrown into Political Trials
But Kuny’s life was a series of calculated risks, which began in 1960 when just a month after he was admitted to the Bar, the Sharpeville massacre took place. At the age of 32 Kuny was thrown into the deep end at the Johannesburg Bar, which had only about 120 members. Of those only a handful of advocates were prepared to take on political trials - particularly as they paid little, if anything at all. On April 1, 1961, a state of emergency was declared and people were being detained, charged, tried and imprisoned. Kuny had to start defending a host of black South Africans involved in everything from pass burning to demonstrations, and needless to say there was no legal aid system. In the same year he appeared as a junior counsel to Joe Slovo in a serious riotous assemblies case from Soweto that went to the High Court.
In 1962 Denis’s wife Hillary, who was active in her own right as the Secretary of the Defence and Aid Fund, roped him into taking on a host of political cases, particularly of young PAC kids who had no one to defend them. Hillary had also brought Joel Joffe into the ambit of political trials. When Joffe had been reluctant to defend the PAC youths who were accused of being involved in violence, Hillary had said to him, “Listen Joel, I am telling you not asking you to defend them.” Hillary spent much of her time going from the 10th floor down in what was known as ‘Chambers,’ looking for advocates to defend anti-apartheid activists, and she ended up thrusting many of them onto her husband.
In the context of severe state repression, Kuny became involved in the beginning of the Rivonia trial in 1963, defending Jimmy Kantor. After a heated exchange with the State Prosecutor Percy Yutar, who accused him of having been on the mailing list of the Communist Party, Kuny was debriefed and another advocate took over.
Counsel in the Bram Fischer Trial
Almost immediately after the Rivonia trial came the Bram Fischer trial in which the highly respected Vernon Berrange led the defence case and Ismail Mohamed (who later became Chief Justice in the new South Africa) and Kuny acted as Junior Counsel. Fischer had been the leader of the Defence team in the Rivonia trial, and he and 12 others were tried in 1964 for being members of the Communist Party. Many of the accused in the Fischer trial were people that Kuny had socialised with, and it was a blessing in disguise that Kuny had refused to attend Communist Party meetings in private homes as all along the Special Branch spy Gerald Ludi had been attending and reporting on such meetings. Today Kuny is the only surviving member of the Fischer defence team.
Over the next three years Kuny took on numerous cases defending comrades who had left the country for military training, come back and been arrested. There were endless cases defending people for breaking their banning orders and attending ‘illegal gatherings.’ In 1966 Kuny was involved in a plethora of PAC trials, and in 1967 Kuny was a central figure on the defence team of the South West African Treason Trial.
Kuny and Bizos Act in the Famous SWAPO Trial
The ‘SWAPO trial,’ as it was known, was historic. The Defence team was made up of Kuny, Bizos and Ernie Wentzel, who questioned whether South Africa had the jurisdiction to try South West Africans for supposed offences committed in South West Africa. The Defence also challenged the fact that the 40 accused could be tried for treason against South Africa when they were not South African citizens or residents.
The trial was an oddity, in that it was the only SWAPO trial to be held in South Africa, and it took place in the old Synagogue in Pretoria. The 40 accused were detained for two years in South Africa without trial and very brutally treated, until they were ultimately charged with treason. The only way the defence team managed to avoid the death sentence for the accused was by appeals to the international community. Toivo ya Toivo was convicted and sentenced to 15 years on Robben Island, and the rest given moderate jail sentences. Kuny was to later visit Toivo ya Toivo in Namibia in 1990, in his office as a Government Minister.
The Mass Treason Trials in Lesotho
The very same year Kuny became embroiled in a number of cases in Lesotho. But by 1970 Lesotho Prime Minister Leabua Jonathan was not prepared to cede power in the general elections and he proceeded to cancel the election, declare a state of emergency, suspend the constitution and remain in power through force. At the time Kuny and Raymond Tucker had moved an application for the leader of the opposition who was in detention, but the courts stayed closed for three months. By 1974 there was an attempted coup to overthrow Jonathan, but 80 people were detained and charged with treason.
There were two huge treason trials in which Kuny played a central role. “We became almost permanent residents in Lesotho for months on end,” Kuny said.
Kuny was incredibly active in the Southern African region, and it was only later that documents were found by Geoff Budlender that said Dirk Coetzee had been involved in an instruction to ‘take Kuny out’ when he was travelling through Botswana. But Kuny lived to take on an even greater number of trials as the grip of the apartheid state tightened.
One of the big trials Kuny was involved in was the NUSAS trial of 1976 in which Chaskalson, Bizos and Kuny were Counsel, and the accused were ultimately acquitted. Then came the Sexwale trial in 1977 in which Tokyo Sexwale was the first of 12 accused. The defence team managed to get Joe Gqabi (who had already spent 10 years on Robben Island) acquitted, and of all the clients Kuny defended he had the highest praise for Gqabi as a “very impressive, knowledgeable and lovely man". Gqabi proceeded to go into exile in Zimbabwe but was assassinated by the Security Branch. Sexwale was handed down a sentence of 18 years.
Kuny defends Steve Biko
How Kuny kept up with such a host of overlapping cases in those tense times is hard to imagine. In 1976 he defended a group of school children in Grahamstown who had set their classroom alight as a form of protest. Kuny and his team managed to get the children acquitted, but the State then charged Steve Biko with defeating the ends of justice as he was accused of advising witnesses in that case not to testify, which resulted in the State being unable to prove their case.
Kuny proceeded to act as Biko’s defence counsel and would go to his home in Ginsberg township in King Williamstown to consult with him. “Biko was charming, strong, and determined,” Kuny recalled. “I remember one day sitting on Biko’s stoep in Ginsberg and being overcome by the overwhelming stench of sewerage. Those were the conditions in which people were forced to live,” he said. Kuny managed to get Biko acquitted, but it was the last time he saw him as just a few months later Biko was brutally beaten and killed in police custody.
Kuny did however have ongoing contact with Biko’s partner Mamphele Ramphele, and defended her during her banishment in Tzaneen. “She stayed in a one-roomed house with another family. Twice the police charged her with attending a gathering because she had eaten dinner with the family that she shared the one-roomed house with! I travelled to Tzaneen to defend her and got her acquitted,” Denis recalled.
The Barbara Hogan and Helene Pastoors Treason trials
The 1980s brought a flood of cases Kuny’s way, each just as urgent as the next. Kuny defended Barbara Hogan in 1982. She had been charged with treason. Despite the State’s lack of evidence, Hogan became the first woman in South Africa found guilty of high treason, and was given a 10-year prison sentence. Kuny was also involved in the Aggett inquest following Aggett’s torture and death in police custody in 1982. He went on to defend the Belgian national Helene Pastoors in her treason trial in 1986, but Pastoors was given a 10-year sentence for her involvement in the ANC’s military activities.
Today Denis Kuny lives a quiet life and remains an unsung hero of the legal fraternity who defended South African freedom fighters in some of the most notable political trials of the century. We owe a debt of gratitude to men like Kuny without whom our liberation struggle would have been even more difficult than it was. We salute you Denis Kuny.