A CONVICTED crimi- nal usually presents a plea in mitigation and tries to explain why the crime has been committed and plead for leniency.
There were some cases in which political prisoners had followed this course of action - possibly to obtain a lower sentence - or because they were motivated by bitterness towards their comrades.
In general, however, political prisoners avoided the mode of legal defence used in conventional cases. Their court appearances were part of a wider ideological battle. And by standing up against the state, the political fighter was ranged against the authorities in a way that was different from an individual offender, who had simply fallen foul of laws that are generally accepted as being in the interests of society.
Different judges might cast varying glosses on the law, but in their oath of office had undertaken to administer justice according to the law. But the actions of political prisoners were directed against that very law - or, at least, those parts of it that we regarded as unjust and could not accept for wider moral reasons.
Thus, it was not surprising that judges and magistrates did not embrace our concept of justice. Instead, they described our actions as ones that no civilised state or authority could tolerate - equating our challenge to, and disregard of, apartheid laws with a challenge to the very idea of law.
A politically motivated defence tended to be prejudicial to the personal interests of the accused. It made it harder to get out of jail and may have increased the length of our sentences. It tended to make certain types of legal defence impossible.
I first experienced this while an accused person in November 1975; and then again in the 1980s, when applying for release from detention during the state of emergency. To some extent, we aided the process of legal conviction because we were unable to advance arguments to free us.
Appearing in court as a representative of our movement meant we had a duty to engage the courts and challenge the system under which we were tried. The courtroom was a place where we could be heard, albeit to a limited degree - a place where we could make a public statement in defence of the liberation struggle.
Therefore, I could not align myself with the liberation movement to just a limited degree, and dissociate myself from “less tasteful” policies, such as the use of force.
Some people, in the loneliness of their cells, might have found this course attractive - and selectively rejected liberation movement policies that were harder to explain in court.
When you have your day in court, you want people to understand why you acted as you did.
This meant, in the case of people involved with the South African liberation movement, rejecting the labels that the regime wanted to attach to us - such as “terrorists”, and so on. We also wanted the fact of torture to be acknowledged, and that we had experienced various other losses, while undertaking political activities that had brought us no gain.
In many cases, people went to jail without the truth ever emerging.
We knew we had broken the law, but many judges denied the reasoning behind our actions, and allied themselves with the reasoning of the apartheid regime.
I was dissuaded by my lawyers from raising the matter of my own torture in court. They said it would not be credible, since there was not a confession before the court and I was not going into the witness box. I accepted this at the time. But I now think it was wrong. I should have described my torture. Even if the court had not accepted my account, the public would have known the truth. (One of the torturers admitted to it in a statement to the Truth and Reconciliation Commission in 1997.)
The judge in my case gratuitously implied that the security police had surprised a state witness with their “politeness.” In case anyone were to imagine that terrible things happened in detention, here was a state witness, who found that he was dealing with gentle people.
Forty-two years after the event, when I read the judgment in my case by Justice Neville James, Judge President of Natal, it is clear he went beyond the call of duty, in the words he used to convict and sentence me.
It was correct, in terms of the law of the time, that I should be found guilty. But James (like many others of his colleagues) also tried to assimilate moral and legal guilt. Thus, when considering the evidence given against me by State witnesses, James found I had manipulated my friendship with them, in order to induce them to take part in illegal activities. Thus, in regard to recruitment of one State witness, the judge stated:
“I have no doubt that the accused, as a result of his fairly close friendship with her, decided that he would be able to persuade her to enter his political orbit, and thus to make use of her skills for the purposes of his organisation. And that he did so without paying any heed to the perils and anxieties which she would endure by joining into activities which he knew were completely illegal I consider that the accused’s conduct in persuading his good and trusted friend, to help in his subversive activities was reprehensible and that he imposed upon her because of her regard for him.”
Regarding the other State witness, the judge said:
“In passing, I should say that he appears to have co-operated with the investigating police almost from the moment he was taken into custody. This apparently happened because he was quite unprepared for the politeness with which they treated him ”
In sentencing me, the judge said: “ he was prepared to allow his friends to risk their future for his cause.”
The judge depicts this cause as some selfish venture belonging to me. The judge also uses the language usually deployed to convict someone for fraud, as if there was some gain involved. In reality, underground work entailed risking my professional career and the ordinary comforts of home life.
The judge also ignored the prospect of release of state witnesses, as an inducement for their co-operation.
Instead, police “politeness” is given the credit.
In passing sentence on me, the judge continued: “There is no question of his succumbing to sudden temptation or pressure I consider that his reasons for breaking the law, even if sincerely held, afford little basis for mitigation of sentence (which I had not requested). I have no doubt that many terrorists all over the world who have killed innocent people by the indiscriminate use of explosives claim that they were morally justified in so doing, but such conduct cannot be tolerated in a civilised community. And the motives of the terrorists are of minor importance when deciding upon an appropriate sentence, because the requirements of law and order are paramount.
“Similarly, a man like the accused, who promotes revolutionary change in South Africa and urges others, by means of widely distributed subversive pamphlets, to support that change by using every available means, including violence and guerrilla warfare, cannot lay claim to special consideration from the court because he asserts that he has acted from the highest moral principles. Although the accused has not detonated a bomb, he had endeavoured to light a trail of gunpowder, which he believes will cause a bomb to explode
“ He possessed the fanatical dedication of a resolute man who had embarked on a secret subversive course and had disciplined his life to prevent any sort of suspicion falling upon him.
“I am acutely and sadly aware of the fact that in sending the accused to jail, as I am obliged to do, his brilliant academic and legal career will be blighted and that his incarceration will bring distress both to himself, his distinguished mother and her family. But for the reasons I have already given, these matters, although relevant, cannot be carried too far as a basis for mitigation of sentence.
“I am therefore not prepared to pass the minimum sentence permitted by law ”
As I left the dock and gave the ANC clenched fist salute, people in the gallery, led by Winnie Mandela, responded by raising their fists and singing the national anthem, Nkosi sikelel’ iAfrika.
This is an edited extract from Raymond Suttner’s book, Inside Apartheid’s Prison, published by Jacana Media at a recommended retail price of R240.