On Freedom
"Black Man in a White Court"
Nelson Mandela's First Court Statement - 1962
- Extracts from the court record of the trial of Mandela held in the Old Synagogue court, Pretoria, from 15 October to 7 November 1962. Mandela was accused on two counts, that of inciting persons to strike illegally (during the 1961 stay-at-home) and that of leaving the country without a valid passport. He conducted his own defence.
MANDELA:
Your Worship, before I plead to the charge, there are one or two points I would like to raise.
Firstly, Your Worship will recall that this matter was postponed last Monday at my request until today, to enable Counsel to make the arrangements to be available here today. Although Counsel is now available, after consultation with him and my attorneys, I have elected to conduct my own defence. Some time during the progress of these proceedings, I hope to be able to indicate that this case is a trial of the aspirations of the African people, and because of that I thought it proper to conduct my own defence. Nevertheless, I have decided to retain the services of Counsel, who will be here throughout these proceedings, and I also would like my attorney to be available in the course of these proceedings as well, but subject to that I will conduct my own defence.
The second point I would like to raise is an application which is addressed to Your Worship. Now at the outset, I want to make it perfectly clear that the remarks I am going to make are not addressed to Your Worship in his personal capacity, nor are they intended to reflect upon the integrity of the court. I hold Your Worship in high esteem and I do not for one single moment doubt your sense of fairness and justice. I must also mention that nothing I am going to raise in this application is intended to reflect against the Prosecutor in his personal capacity.
The point I wish to raise in my argument is based not on personal considerations, but on important questions that go beyond the scope of this present trial. I might also mention that in the course of this application I am frequently going to refer to the white man and the white people. I want at once to make it clear that I am no racialist, and I detest racialism, because I regard it as a barbaric thing, whether it comes from a black man or from a white man. The terminology that I am going to employ will be compelled on me by the nature of the application I am making.
I want to apply for Your Worship's recusal from this case. I challenge the right of this court to hear my case on two grounds.
Firstly, I challenge it because I fear that I will not be given a fair and proper trial. Secondly, I consider myself neither legally nor morally bound to obey laws made by a parliament in which I have no representation.
In a political trial such as this one, which involves a clash of the aspirations of the African people and those of whites, the country's courts, as presently constituted, cannot be impartial and fair.
In such cases, whites are interested parties. To have a white judicial officer presiding, however high his esteem, and however strong his sense of fairness and justice, is to make whites judges in their own case.
It is improper and against the elementary principles of justice to entrust whites with cases involving the denial by them of basic human rights to the African people.
What sort of justice is this that enables the aggrieved to sit in judgement over those against whom they have laid a charge?
A judiciary controlled entirely by whites and enforcing laws enacted by a white parliament in which Africans have no representation - laws which in most cases are passed in the face of unanimous opposition from Africans -
MAGISTRATE:
I am wondering whether I shouldn't interfere with you at this stage, Mr Mandela. Aren't we going beyond the scope of the proceedings? After all is said and done, there is only one court today and that is the White Man's court. There is no other court. What purpose does it serve you to make an application when there is only one court, as you know yourself. What court do you wish to be tried by?
MANDELA:
Well, Your Worship, firstly I would like Your Worship to bear in mind that in a series of cases our courts have laid it down that the right of a litigant to ask for a recusal of a judicial officer is an extremely important right, which must be given full protection by the court, as long as that right is exercised honestly. Now I honestly have apprehensions, as I am going to demonstrate just now, that this unfair discrimination throughout my life has been responsible for very grave injustices, and I am going to contend that that race discrimination which outside this court has been responsible for all my troubles, I fear in this court is going to do me the same injustice. Now Your Worship may disagree with that, but Your Worship is perfectly entitled, in fact, obliged to listen to me and because of that I feel that Your Worship-
MAGISTRATE:
I would like to listen, but I would like you to give me the grounds for your application for me to recuse myself.
MANDELA:
Well, these are the grounds, I am developing them, sir. If Your Worship will give me time -
MAGISTRATE:
I don't wish to go out of the scope of the proceedings.
MANDELA:
- Of the scope of the application. I am within the scope of the application, because I am putting forward grounds which in my opinion are likely not to give me a fair and proper trial.
MAGISTRATE:
Anyway proceed.
MANDELA:
As your Worship pleases. I was developing the point that a judiciary controlled entirely by whites and enforcing laws enacted by a white parliament in which we have no representation, laws which in most cases are passed in the face of unanimous opposition from Africans, cannot be regarded as an impartial tribunal in a political trial where an African stands as an accused.
The Universal Declaration of Human Rights provides that all men are equal before the law, and are entitled without any discrimination to equal protection of the law. In May 1951, Dr D F Malan, then Prime Minister, told the Union parliament that this provision of the Declaration applies in this country. Similar statements have been made on numerous occasions in the past by prominent whites in this country, including judges and magistrates. But the real truth is that there is in fact no equality before the law whatsoever as far as our people are concerned, and statements to the contrary are definitely incorrect and misleading.
It is true that an African who is charged in a court of law enjoys, on the surface, the same rights and privileges as an accused who is white in so far as the conduct of this trial is concerned. He is governed by the same rules of procedure and evidence as apply to a white accused. But it would be grossly inaccurate to conclude from this fact that an African consequently enjoys equality before the law.
In its proper meaning equality before the law means the right to participate in the making of the laws by which one is governed, a constitution which guarantees democratic rights to all sections of the population, the right to approach the court for protection or relief in the case of the violation of rights guaranteed in the constitution, and the right to take part in the administration of justice as judges, magistrates, attorneys-general, law advisers and similar positions.
In the absence of these safeguards the phrase 'equality before the law', in so far as it is intended to apply to us, is meaningless and misleading. All the rights and privileges to which I have referred are monopolised by whites, and we enjoy none of them.
The white man makes all the laws, he drags us before his courts and accuses us, and he sits in judgement over us.
It is fit and proper to raise the question sharply, what is this rigid colour-bar in the administration of justice? 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?
Why is it that no African in the history of this country has ever had the honour of being tried by his own kith and kin, by his own flesh and blood?
I will tell Your Worship why: the real purpose of this rigid colour-bar is to ensure that the justice dispensed by the courts should conform to the policy of the country, however much that policy might be in conflict with the norms of justice accepted in judiciaries throughout the civilised world.
I feel oppressed by the atmosphere of white domination that lurks all around in this courtroom. Somehow this atmosphere calls to mind the inhuman injustices caused to my people outside this courtroom by this same white domination.
It reminds me that I am voteless because there is a parliament in this country that is white-controlled. I am without land because the white minority has taken a lion's share of my country and forced me to occupy poverty-stricken Reserves, over-populated and over-stocked. We are ravaged by starvation and disease . . .
MAGISTRATE:
What has that got to do with the case, Mr. Mandela?
MANDELA:
With the last point, Sir, it hangs together, if Your Worship will give me the chance to develop it.
MAGISTRATE:
You have been developing it for quite a while now, and I feel you are going beyond the scope of your application.
MANDELA:
Your Worship, this to me is an extremely important ground which the court must consider.
MAGISTRATE:
I fully realise your position, Mr Mandela, but you must confine yourself to the application and not go beyond it. I don't want to know about starvation. That in my view has got nothing to do with the case at the present moment.
MANDELA:
Well, Your Worship has already raised the point that here in this country there is only a white court. What is the point of all this? Now if I can demonstrate to Your Worship that outside this courtroom race discrimination has been used in such a way as to deprive me of my rights, not to treat me fairly, certainly this is a relevant fact from which to infer that wherever race discrimination is practised, this will be the same result, and this is the only reason why I am using this point.
MAGISTRATE:
I am afraid that I will have to interrupt you, and you will have to confine yourself to the reasons, the real reasons for asking me to recuse myself.
MANDELA:
Your Worship, the next point which I want to make is this: I raise the question, how can I be expected to believe that this same racial discrimination which has been the cause of so much injustice and suffering right through the years should now operate here to give me a fair and open trial? Is there no danger that an African accused may regard the courts not as impartial tribunals, dispensing justice without fear or favour, but as instruments used by the white man to punish those amongst us who clamour for deliverance from the fiery furnace of white rule. I have grave fears that this system of justice may enable the guilty to drag the innocent before the courts. It enables the unjust to prosecute and demand vengeance against the just. It may tend to lower the standards of fairness and justice applied in the country's courts by white judicial officers to black litigants. This is the first ground for this application: that I will not receive a fair and proper trial.
The second ground of my objection is that I consider myself neither morally nor legally obliged to obey laws made by a parliament in which I am not represented.
That the will of the people is the basis of the authority of government is a principle universally acknowledged as sacred throughout the civilised world, and constitutes the basic foundations of freedom and justice. It is understandable why citizens, who have the vote as well as the right to direct representation in the country's governing bodies, should be morally and legally bound by the laws governing the country.
It should be equally understandable why we, as Africans, should adopt the attitude that we are neither morally nor legally bound to obey laws which we have not made, nor can we be expected to have confidence in courts which enforce such laws.
I am aware that in many cases of this nature in the past, South African courts have upheld the right of the African people to work for democratic changes. Some of our judicial officers have even openly criticised the policy which refuses to acknowledge that all men are born free and equal, and fearlessly condemned the denial of opportunities to our people.
But such exceptions exist in spite of, not because of, the grotesque system of justice that has been built up in this country. These exceptions furnish yet another proof that even among the country's whites there are honest men whose sense of fairness and justice revolts against the cruelty perpetrated by their own white brothers to our people.
The existence of genuine democratic values among some of the country's whites in the judiciary, however slender they may be, is welcomed by me. But I have no illusions about the significance of this fact, healthy a sign as it might be. Such honest and upright whites are few and they have certainly not succeeded in convincing the vast majority of the rest of the white population that white supremacy leads to dangers and disaster.
However, it would be a hopeless commandant who relied for his victories on the few soldiers in the enemy camp who sympathise with his cause. A competent general pins his faith on the superior striking power he commands and on the justness of his cause which he must pursue uncompromisingly to the bitter end.
I hate race discrimination most intensely and in all its manifestations. I have fought it all during my life; I fight it now, and will do so until the end of my days. Even although I now happen to be tried by one whose opinion I hold in high esteem, I detest most violently the set-up that surrounds me here. It makes me feel that I am a black man in a white man's court. This should not be. I should feel perfectly at ease and at home with the assurance that I am being tried by a fellow South African who does not regard me as an inferior, entitled to a special type of justice.
This is not the type of atmosphere most conducive to feelings of security and confidence in the impartiality of a court.
The court might reply to this part of my argument by assuring me that it will try my case fairly and without fear or favour, that in deciding whether or not I am guilty of the offence charged by the State, the court will not be influenced by the colour of my skin or by any other improper motive.
That might well be so. But such a reply would completely miss the point of my argument.
As already indicated, my objection is not directed to Your Worship in his personal capacity, nor is it intended to reflect upon the integrity of the court. My objection is based upon the fact that our courts, as presently constituted, create grave doubts in the minds of an African accused, whether he will receive a fair and proper trial.
This doubt springs from objective facts relating to the practice of unfair discrimination against the black man in the constitution of the country's courts. Such doubts cannot be allayed by mere verbal assurances from a presiding officer, however sincere such assurances might be. There is only one way, and one way only, of allaying such doubts, namely, by removing unfair discrimination in judicial appointments. This is my first difficulty.
I have yet another difficulty about similar assurances Your Worship might give. Broadly speaking, Africans and whites in this country have no common standard of fairness, morality, and ethics, and it would be very difficult to determine on my part what standard of fairness and justice Your Worship has in mind.
In their relationship with us, South African whites regard it as fair and just to pursue policies which have outraged the conscience of mankind and of honest and upright men throughout the civilised world. They suppress our aspirations, bar our way to freedom, and deny us opportunities to promote our moral and material progress, to secure ourselves from fear and want. All the good things of life are reserved for the white folk and we blacks are expected to be content to nourish our bodies with such pieces of food as drop from the tables of men with white skins. This is the white man's standard of justice and fairness. Herein lies his conceptions of ethics. Whatever he himself may say in his defence, the white man's moral standards in this country must be judged by the extent to which he has condemned the vast majority of its inhabitants to serfdom and inferiority.
We, on the other hand, regard the struggle against colour discrimination and for the pursuit of freedom and happiness as the highest aspiration of all men. Through bitter experience, we have learnt to regard the white man as a harsh and merciless type of human being whose contempt for our rights, and whose utter indifference to the promotion of our welfare, makes his assurances to us absolutely meaningless and hypocritical.
I have the hope and confidence that Your Worship will not hear this objection lightly nor regard it as frivolous. I have decided to speak frankly and honestly because the injustice I have referred to contains the seeds of an extremely dangerous situation for our country and people. I make no threat when I say that unless these wrongs are remedied without delay, we might well find that even plain talk before the country's courts is too timid a method to draw the attention of the country to our political demands.
Finally, I need only to say that the courts have said that the possibility of bias and not actual bias is all that needs be proved to ground an application of this nature. In this application I have merely referred to certain objective facts, from which I submit that the possibility be inferred that I will not receive a fair and proper trial.
MAGISTRATE:
Mr. Prosecutor, have you anything to say?
PROSECUTOR:
Very briefly, Your Worship, I just wish to point out that there are certain legal grounds upon which an accused person is entitled to apply for the recusal of a judicial officer from the case in which he is to be tried. I submit that the Accused's application is not based on one of those principles, and I ask the Court to reject it.
MAGISTRATE:
[to Mandela] Your application is dismissed. Will you now plead to your charges?
MANDELA:
I plead NOT GUILTY to both charges, to all the charges.
Among the witnesses was Mr. Barnard, the private secretary to the then Prime Minister, Dr H F Verwoerd, whom Mandela cross-examined on the subject of a letter sent by Mandela to the Prime Minister demanding a National Convention in May 1961. In cross-examining the witness, Mandela first read the contents of the letter:
'I am directed by the All-in African National Action Council to address your government in the following terms:
'The All-in African National Action Council was established in terms of a resolution adopted at a conference held at Pietermaritzburg on 25 and 26 March 1961. This conference was attended by 1,500 delegates from town and country, representing 145 religious, social, cultural, sporting, and political bodies.
'Conference noted that your government, after receiving a mandate from a section of the European population, decided to proclaim a republic on 31 May.
'It was the firm view of delegates that your government, which represents only a minority of the population in this country, is not entitled to take such a decision without first seeking the views and obtaining the express consent of the African people. Conference feared that under this proposed republic your government, which is already notorious the world over for its obnoxious policies, would continue to make even more savage attacks on the rights and living conditions of the African people.
'Conference carefully considered the grave political situation facing the African people today. Delegate after delegate drew attention to the vicious manner in which your government forced the people of Zeerust, Sekhukhuniland, Pondoland, Nongoma, Tembuland and other areas to accept the unpopular system of Bantu Authorities, and pointed to numerous facts and incidents which indicate the rapid manner in which race relations are deteriorating in this country.
'It was the earnest opinion of Conference that this dangerous situation could be averted only by the calling of a sovereign national convention representative of all South Africans, to draw up a new non-racial and democratic Constitution. Such a convention would discuss our national problems in a sane and sober manner, and would work out solutions which sought to preserve and safeguard the interests of all sections of the population.
'Conference unanimously decided to call upon your government to summon such a convention before 31 May.
'Conference further decided that unless your government calls the convention before the above-mentioned date, countrywide demonstrations would be held on the eve of the republic in protest. Conference also resolved that in addition to the demonstrations, the African people would be called upon to refuse to co-operate with the proposed republic.
'We attach the Resolutions of the Conference for your attention and necessary action.
'We now demand that your government call the convention before 31 May, failing which we propose to adopt the steps indicated in paragraphs 8 and 9 of this letter.
'These demonstrations will be conducted in a disciplined and peaceful manner.
'We are fully aware of the implications of this decision, and the action we propose taking. We have no illusions about the counter-measures your government might take in this matter. After all, South Africa and the world know that during the last thirteen years your government has subjected us to merciless and arbitrary rule. Hundreds of our people have been banned and confined to certain areas. Scores have been banished to remote parts of the country, and many arrested and jailed for a multitude of offences. It has become extremely difficult to hold meetings, and freedom of speech has been drastically curtailed. During the last twelve months we have gone through a period of grim dictatorship, during which seventy-five people were killed and hundreds injured while peacefully demonstrating against passes.
'Political organisations were declared unlawful, and thousands flung into jail without trial. Your government can only take these measures to suppress the forthcoming demonstrations, and these measures have failed to stop opposition to the policies of your government. We are not deterred by threats of force and violence made by you and your government, and will carry out our duty without flinching.'
MANDELA:
You remember the contents of this letter?
WITNESS:
I do.
MANDELA:
Did you place this letter before your Prime Minister?
WITNESS:
Yes.
MANDELA:
On what date? Can you remember?
WITNESS:
It is difficult to remember, but I gather from the date specified on the date stamp, the Prime Minister's Office date stamp.
MANDELA:
That is 24 April. Now was any reply given to this letter by the Prime Minister? Did he reply to this letter?
WITNESS:
He did not reply to the writer.
MANDELA:
He did not reply to the letter. Now, will you agree that this letter raises matters of vital concern to the vast majority of the citizens of this country?
WITNESS:
I do not agree.
MANDELA:
You don't agree? You don't agree that the question of human rights, of civil liberties, is a matter of vital importance to the African people?
WITNESS:
Yes, that is so, indeed.
MANDELA:
Are these things mentioned here?
WITNESS:
Yes, I think so.
MANDELA:
They are mentioned. You agree that this letter deals with matters of vital importance to the African people in this country? You have already agreed that this letter raises questions like the rights of freedom, civil liberties, and so on?
WITNESS:
Yes, the letter raises it.
MANDELA:
Important questions to any citizen?
WITNESS:
Yes.
MANDELA:
Now, you know of course that Africans don't enjoy the rights demanded in this letter. They are denied the rights of government?
WITNESS:
Some rights.
MANDELA:
No African is a member of parliament?
WITNESS:
That is right.
MANDELA:
No African can be a member of the Provincial Council, of the Municipal Councils?
WITNESS:
Yes.
MANDELA:
Africans have no vote in this country?
WITNESS:
They have got no vote as far as parliament is concerned.
MANDELA:
Yes, that is what I am talking about, I am talking about parliament, and other government bodies of the country, the Provincial Councils, the Municipal Councils. They have no vote?
WITNESS:
That is right.
MANDELA:
Would you agree with me that in any civilised country in the world it would be at least most scandalous for a Prime Minister to fail to reply to a letter raising vital issues affecting the majority of the citizens of that country. Would you agree with that?
WITNESS:
I don't agree with that.
MANDELA:
You don't agree that it would be irregular for a Prime Minister to ignore a letter raising vital issues affecting the vast majority of the citizens of that country?
WITNESS:
This letter has not been ignored by the Prime Minister.
MANDELA:
Just answer the question. Do you regard it proper for a Prime Minister not to respond to pleas made in regard to vital issues by the vast majority of the citizens of the country? You say that is not wrong?
WITNESS:
The Prime Minister did respond to the letter.
MANDELA:
Mr. Barnard, I don't want to be rude to you. Will you confine yourself to answering my questions? The question I am putting to you is, do you agree that it is most improper on the part of a Prime Minister not to reply to a communication raising vital issues affecting the vast majority of the country?
WITNESS:
I do not agree in this special case, because . . .
MANDELA:
As a general proposition? Would you regard it as improper, speaking generally, for a Prime Minister not to respond to a letter of this nature, that is, a letter raising vital issues affecting the majority of the citizens?
PROSECUTOR:
(Intervened with objections to the line of questioning)
MANDELA:
You say that the Prime Minister did not ignore this letter?
WITNESS:
He did not acknowledge the letter to the writer.
MANDELA:
This letter was not ignored by the Prime Minister?
WITNESS:
No, it was not ignored.
MANDELA:
It was attended to?
WITNESS:
It was indeed.
MANDELA:
In what way?
WITNESS:
According to the usual procedure, and that is that the Prime Minister refers correspondence to the respective Minister, the Minister most responsible for that particular letter.
MANDELA:
Was this letter referred to another Department?
WITNESS:
That is right.
MANDELA:
Which Department?
WITNESS:
The Department of Justice.
MANDELA:
Can you explain why I was not favoured with the courtesy of an acknowledgement of this letter, and also the explanation that it had been referred to the appropriate Department for attention?
WITNESS:
When a letter is replied to and whether it should be replied to, depends on the contents of the letter in many instances.
MANDELA:
My question is, can you explain to me why I was not favoured with the courtesy of an acknowledgement of the letter, irrespective of what the Prime Minister is going to do about it? Why was I not favoured with this courtesy?
WITNESS:
Because of the contents of this letter.
MANDELA:
Because it raises vital issues?
WITNESS:
Because of the contents of the letter.
MANDELA:
I see. This is not the type of thing the Prime Minister would ever consider responding to?
WITNESS:
The Prime Minister did respond.
MANDELA:
You say that the issues raised in this letter are not the type of thing your Prime Minister could ever respond to?
WITNESS:
The whole tone of the letter was taken into consideration.
MANDELA:
The tone of the letter demanding a National Convention? Of all South Africans? That is the tone of the letter? That is not the type of thing your Prime Minister could ever respond to?
WITNESS:
The tone of the letter indicates whether, and to what extent, the Prime Minister responds to correspondence.
MANDELA:
I want to put it to you that in failing to respond to this letter, your Prime Minister fell below the standards which one expects from one in such a position.
Now this letter, Exhibit 18, is dated 26 June 1961, and it is also addressed to the Prime Minister, and it reads as follows:
'I refer you to my letter of 20 April 1961, to which you do not have the courtesy to reply or acknowledge receipt. In the letter referred to above I informed you of the resolutions passed by the All-in African National Conference in Pietermaritzburg on 26 March 1961, demanding the calling by your government before 31 May 1961 of a multi-racial and sovereign National Convention to draw up a new non-racial and democratic Constitution for South Africa. The Conference Resolution which was attached to my letter indicated that if your government did not call this convention by the specific date, countrywide demonstrations would be staged to mark our protest against the White republic forcibly imposed on us by a minority. The Resolution further indicated that in addition to the demonstrations, the African people would be called upon not to co-operate with the republican government, or with any government based on force. As your government did not respond to our demands, the All-in African National Council, which was entrusted by the Conference with the task of implementing its resolutions, called for a General Strike on the 29, 30 and 31 of last month. As predicted in my letter of 30 April 1961, your government sought to suppress the strike by force. You rushed a special law in parliament authorising the detention without trial of people connected with the organisation of the strike. The army was mobilised and European civilians armed. More than ten thousand innocent Africans were arrested under the pass laws and meetings banned throughout the country. Long before the factory gates were opened on Monday, 29 May 1961, senior police officers and Nationalist South Africans spread a deliberate falsehood and announced that the strike had failed. All these measures failed to break the strike and our people stood up magnificently and gave us solid and substantial support. Factory and office workers, businessmen in town and country, students in university colleges, in the primary and secondary schools, rose to the occasion and recorded in clear terms their opposition to the republic. The government is guilty of self-deception if they say that non Europeans did not respond to the call. Considerations of honesty demand of your government to realise that the African people who constitute four-fifths of the country's population are against your republic. As indicated above, the Pietermaritzburg resolution provided that in addition to the countrywide demonstrations, the African people would refuse to co-operate with the republic or any form of government based on force. Failure by your government to call the convention makes it imperative for us to launch a full-scale and countrywide campaign for non-co-operation with your government. There are two alternatives before you. Either you accede to our demands and call a National Convention of all South Africans to draw up a democratic Constitution, which will end the frightful policies of racial oppression pursued by your government. By pursuing this course and abandoning the repressive and dangerous policies of your government, you may still save our country from economic dislocation and ruin and from civil strife and bitterness. Alternatively, you may choose to persist with the present policies which are cruel and dishonest and which are opposed by millions of people here and abroad. For our own part, we wish to make it perfectly clear that we shall never cease to fight against repression and injustice, and we are resuming active opposition against your regime. In taking this decision we must again stress that we have no illusions of the serious implications of our decision. We know that your government will once again unleash all its fury and barbarity to persecute the African people. But as the result of the last strike has clearly proved, no power on earth can stop an oppressed people determined to win their freedom. History punishes those who resort to force and fraud to suppress the claims and legitimate aspirations of the majority of the country's citizens.'
MANDELA:
This is the letter which you received on 28 June 1961? Again there was no acknowledgement or reply by the Prime Minister to this letter?
WITNESS:
I don't think it is - I think it shouldn't be called a letter in the first instance, but an accumulation of threats.
MANDELA:
Whatever it is, there was no reply to it?
WITNESS:
No.
Another witness to be called was Warrant Officer Baardman, member of the police Special Branch in Bloemfontein.
He was cross-examined by MANDELA.
MANDELA:
Is it true to say that the present constitution of South Africa was passed at a National Convention representing whites only?
WITNESS:
I don't know, I was not there.
MANDELA:
But from your knowledge?
WITNESS:
I don't know, I was not there.
MANDELA:
You don't know at all?
WITNESS:
No, I don't know.
MANDELA:
You want this court to believe that, that you don't know?
WITNESS:
I don't know, I was not there.
MANDELA:
Just let me put the question. You don't know that the National Convention in 1909 was a convention of whites only?
WITNESS:
I don't know, I was not there.
MANDELA:
Do you know that the Union Parliament is an all-White parliament?
WITNESS:
Yes, with representation for non-Whites.
MANDELA:
Now, I just want to ask you one or two personal questions. What standard of education have you passed?
WITNESS:
Matriculation.
MANDELA:
When was that?
WITNESS:
In 1932.
MANDELA:
In what medium did you write it?
WITNESS:
In my mother tongue. (Here the witness meant Afrikaans.)
MANDELA:
I notice you are very proud of this?
WITNESS:
I am.
MANDELA:
You know of course that in this country we have no language rights as Africans?
WITNESS:
I don't agree with you.
MANDELA:
None of our languages is an official language, for example. Would you agree with that?
WITNESS:
They are perhaps not in the Statute Book as official languages, but no one forbids you from using your own language.
MANDELA:
Will you answer the question? Is it true that in this country there are only two official languages, and they are English and Afrikaans?
WITNESS:
I agree entirely. By name they are the two official languages, but no one has ever forbidden you to use your own language.
MANDELA:
Is it true that there are only two official languages in this country, that is English and Afrikaans?
WITNESS:
To please you, that is so.
MANDELA:
Is it true that the Afrikaner people in this country have fought for equality of English and Afrikaans? There was a time, for example, when Afrikaans was not the official language in the history of the various colonies, like the Cape?
WITNESS:
Yes, I agree with you entirely. Constitutionally, the Afrikaner did fight for his language but not through agitators.
On the third day of the trial Mandela again applied for the recusal of the magistrate.
MANDELA:
I want to make application for the recusal of Your Worship from this case. As I indicated last Monday, I hold Your Worship in high esteem, and I do not for one single moment doubt Your Worship's sense of fairness and justice. I still do, as I assured Your Worship last Monday. I make this application with the greatest of respect. I have been placed in possession of information to the effect that after the adjournment yesterday, Your Worship was seen leaving the courtroom in the company of Warrant Officer Dirker of the Special Branch, and another member of the Special Branch. As Your Worship will remember, Warrant Officer Dirker gave evidence in this case on the first day of the trial. The State Prosecutor then indicated that he would be called later, on another aspect of this case. I was then given permission by the court to defer my cross examination of this witness until then. The second member of the Special Branch who was in the company of Your Worship, has been seen throughout this trial assisting the State Prosecutor in presenting the case against me. Your Worship was seen entering a small blue Volkswagen car; it is believed that Your Worship sat in front, as Warrant Officer Dirker drove the car. And this other member of the Special Branch sat behind. At about ten to two Your Worship was seen returning with Warrant Officer Dirker and this other member of the Special Branch.
Now, it is not known what communication passed between Your Worship and Warrant Officer Dirker and this other member of the Special Branch. I, as an accused, was not there, and was not represented. Now, these facts have created an impression in my mind that the court has associated itself with the State case. I am left with the substantial fear that justice is being administered in a secret manner. It is an elementary rule of justice that a judicial officer should not communicate or associate in any manner whatsoever with a party to those proceedings. I submit that Your Worship should not have acted in this fashion, and I must therefore ask Your Worship to recuse yourself from this case.
MAGISTRATE:
I can only say this, that it is not for me here to give you any reasons. I can assure you, as I here now do, that I did not communicate with these two gentlemen, and your application is refused.
Another police witness was Mr. A Moolla, an Indian member of the Special Branch, who was also cross-examined by MANDELA.
MANDELA:
You know about the Group Areas Act?
WITNESS:
I do.
MANDELA:
You know that it is intended to set certain areas for occupation by the various population groups in the country?
WITNESS:
Yes, I do know.
MANDELA:
And you know that it has aroused a great deal of feeling and opposition from the Indian community in this country?
WITNESS:
Well, not that I know of. I think that most of the Indians are satisfied with it.
MANDELA:
Is this a sincere opinion?
WITNESS:
That is my sincere opinion, from people that I have met.
MANDELA:
And are you aware of the attitude of the South African Indian Congress, about the Group Areas?
WITNESS:
Yes.
MANDELA:
What is the attitude of the South African Indian Congress?
WITNESS:
The South African Indian Congress is against it.
MANDELA:
And the attitude of the Transvaal Indian Congress?
WITNESS:
Also.
MANDELA:
They are against it?
WITNESS:
Yes.
MANDELA:
And the Transvaal Indian Youth Congress?
WITNESS:
Also.
MANDELA:
The Cape Indian Assembly, also against it?
WITNESS:
Yes. Well, the Cape Indian Assembly I do not know about.
MANDELA:
Well, you can take it from me that it is against it. Now, of course, if the Group Areas Act is carried out in its present form, it means that a large number of Indian merchants would lose their trading rights in areas which have been declared White Areas?
WITNESS:
That is right.
MANDELA:
And a large number of members of the Indian community who are living at the present moment in areas which might or have been declared as White Areas, would have to leave those homes, and have to go where they are to be stationed?
WITNESS:
I think they will be better off than where . . .
MANDELA:
Answer the question. You know that?
WITNESS:
Yes, I know that.
MANDELA:
You say that the Indian merchant class in this country, who are going to lose their business rights, are happy about it?
WITNESS:
Well, not all.
MANDELA:
Not all. And you are saying that those members of the Indian community who are going to be driven away from the areas where they are living at present would be happy to do so? READ MORE :
Nelson Mandela's First Court Statement - 1962