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THE TRIAL

They were alleged to have inspected trains and railway installations in the Johannesburg area to find targets for sabotage and to have arranged visits to prisons – including Robben Island, where Mr. Mandela is imprisoned – in connection with National Congress business, to have worked with others in arranging financial aid and assistance to the organization, to have arranged to have contact with ‘guerrilla fighters’ and to have ‘encouraged feelings of hostility between the races’.

New York Times, February 1970

The Old Synagogue in Pretorius Street was repurposed as a court of apartheid. Designed in the architectural traditions of the Eastern Roman Empire in 1897, this was the first Jewish house of worship to be consecrated in Pretoria. After 1952, the Department of Public Works ensured that the building had lost all sense of God; even the windows were boarded up to remove evidence of devotion or beauty.

The space allowed for relatively large numbers, and batches of political prisoners stood trial there over the years for ‘communist acts’ ranging from sabotage to collection of alms for the families of political prisoners by missionaries. Security was tight. Members of the special branch were always in attendance and police officers, armed to the teeth, stood outside with machine guns. Women were not allowed to carry handbags into the building. While it was far off from Johannesburg, families and comrades arrived in numbers, setting up tea and food stalls, singing songs of protest and support, congregating in the streets outside.

Although most of the 22 men and women who stood in the dock in the Old Synagogue that summer’s day in 1969 were unfamiliar to one another, they knew who they were. They were the scaffolding of the anti-apartheid movement – a motley collection, joined together by a common cause.

How they had got there was the result of a large-scale, staggered but finely co-ordinated national raid on the part of the South African security police during the cold early winter months of April and May. Almost all of them had been pulled out of their homes at ungodly hours by the special branch and taken away from their families. To all intents and purposes, they simply disappeared.

An International Defence and Aid Fund (IDAF) document which captured the details from the detainees afterwards, noted: ‘In each home, police searched for many hours, and took away with them books, private letters, newspaper cuttings, typewriters, and many things which had nothing to do with politics, or which were political, but legal. Some of those arrested were journalists and writers, one was a poet, some were students.’16

‘The police took drafts of short stories, poetry, articles; copies of the London Observer; student magazines; love letters. Security officers testified to finding a number of books, none of which were banned, and press cuttings in the house of one of the accused, a 19-year-old student, Joseph Sikalala. They also recovered two school notebooks in which, in addition to algebraic equations, there were some notes. In all the forty, perhaps fifty, homes raided during May and June, the total of ‘subversive’ documents seemed to be a copy of a pamphlet issued by the ANC in London, and one or two documents said to relate to the ANC.’17

The accused would have made a pathetic picture in the courtroom, some in the same set of clothes they’d been wearing when they were taken. Some were skeletal, most were sallow skinned from the lack of decent food and exercise, sunlight and fresh air. More than a few bore scars and bruises from the physical torture they’d endured.

They were charged under the Suppression of Communism Act (Act 44 of 1950)18 for, in layman’s terms, terrorism and treason. Of the seven women on trial, two were to be called as state witnesses.

Among the lawyers for the defence were George Bizos, Sydney Kentridge and Joel Carlson.

The names (some misspelt) of the 22 were recorded as19

Mr. Samson Ratshivande Ndou

Mr. David Motau

Mrs. Nonzoma Winnie Mandela

Mr. Hiengani Jackson Mahlaule

Mr. Elliot Goldberg Tshabangu

Miss Joyce Nomala Sikhakhane

Mr. Nanko Paulus Matshaba

Mr. Lawrence Ndzanga

Mrs. Rita Anita Ndzanga

Mr. Joseph Sikalala

Mr. David Dalton Tsotetsi

Mr. Victor Emmanuel Mazitulela

Mr. George Mokwebo

Mr. Joseph Chamberlain Nobanda

Mr. Simon Mosikare

Mr. Douglas Mtshetshe Mvembe

Miss Venus Thokozile Mngoma

Miss Martha Dhlamini

Mr. Owen Msimilele Vanqa

Mr. Livingstone Mancoko

Mr. Peter Zexforth Magubane

Mr. Samuel Solomon Pholotho

The detainees were taken to Pretoria from all around the country, some journeys longer than others, where they were held in solitary confinement and worked on by operatives to create evidence for this trial. In terms of apartheid law, they could be held for 90 days without being charged, without access to lawyers.

Weeks and then months passed. Winter turned to spring. On the other side of the world, in the United States, the music festival that came to be known as Woodstock was taking place, a gathering of peace and unity and harmony in protest against the controversial Vietnam War. While this outdoor demonstration by half a million peace-loving people made news around the world, it could not have been further from the oppression that was happening in South Africa at the same time. Locked away, their personal freedom brutally taken from them, with no news from the outside world, and no visitors allowed, the detained persons in their cells could scarcely tell day from night. They were taken from their cells, at any time, only to be interrogated and tortured by men and women trained to make their incarceration unbearable.

Among the detainees, three young men died soon after their arrest – Michael Shivute, on the night of his detention; Caleb Mayekiso, nineteen days later, and the Imam Abdullah Haron, four months after being detained.

Only when the summer heat was dry and stifling would the 22 see daylight again, on trial in the Old Synagogue. They sat in the dock, hearing themselves being described as guerrillas, spies and terrorists. What they were, in reality, were ordinary people – activists, trade unionists, ‘organisers’, individual cogs in the network of messengers, pamphlet distributors and social workers trying to support the oppressed population. They did have a singular motive, however: freedom for South Africa.

In the courtroom constables armed with automatic pistols at the ready sat behind the rows of the accused. Dishevelled and dispirited, in worn-out clothing and obviously in strained health, by now the prisoners were shadows of their former selves. Their families had last seen them nearly a year before, and the toll of poor food rations and lack of medical care, eyesight affected by being kept away in dark, freezing dungeons would have been visible.

They might have wondered who their fellow captives were and where they were from. Perhaps they would have recognised voices from hushed, stolen midnight discussions. Many were from the Eastern Cape, some from the Transvaal, and all had been gathered up by the security police who had tenuously linked them, accused and witnesses.

Prosecutor JH Liebenberg addressed the court. He claimed that the accused had revived the ANC in 1967 and established contact among old comrades. Meetings had been held ‘in houses, in cars and in the veld’, where groups were instructed in ANC policy.

There was evidence that the ANC was an integral part of the communist movement in South Africa, he continued. This evidence came in the form of pamphlets which could be traced back to the ANC London office for distribution in South Africa and spoke of ‘guerrilla warfare’ to be instigated by members of the ANC, the South African Communist Party, and the South African Indian Congress. Examples were presented to the court. Which of the triallists were responsible for the distribution of these pamphlets, however, was not made clear. Other charges impossible to prove in law were presented, from showing support for freedom fighters and providing social welfare for the families of political prisoners, to considering armed uprising and military training.

Records read: ‘(A witness) Eselina Klaas from Port Elizabeth said she had distributed forms to families of six people who had been released from jail after serving sentences for ANC activities, and that she had delivered the completed forms to Mrs. Ndzanga, in Johannesburg, Mrs. Ndzanga and Mrs. Mandela gave her R11 and some old clothing to distribute to people in financial difficulties.’20

Liebenberg claimed the 22 ‘frequently’ visited Nelson Mandela and others in prison, and that Mandela had shared instructions around communism. The first claim was an inane accusation, and one which commentators abroad wrote scathingly about – prisoners on Robben Island were allowed one visitor twice a year, and few could have afforded the travel to the Cape or were banned from travelling outside their magisterial districts.

The prosecutor continued: ‘In the home of Mr. and Mrs. Ndzanga the police had found press cuttings on the lack of school facilities for African children, and on other matters; and a photograph of Mr. Ndzanga giving the (Amandla) salute.’21 Evidence against Winnie Mandela, Joyce Sikhakhane and Rita Ndzanga included that they had ‘duplicated a leaflet one Sunday in March of 1968. The leaflet, issued in the name of the ANC, exhorted the people not to be hoodwinked into accepting the Urban Bantu Council (Act), as a form of freedom’.22 The women also duplicated a message of farewell to a Mr Lekoto, to be read at his funeral. ‘Mrs. Mandela,’ Liebenberg told the court, ‘had a profound knowledge of communism. She had read works by Lenin, Trotsky and Che Guevara and had expressed a great interest in Zhivago’s History of Russia.’23 This information had been supplied by a ‘friend’, Maud Katzenellenbogen.

Thirty-two-year-old Shanthie Naidoo was surprised to hear her name being called as a state witness. She had been detained a month or two after the initial raids that saw approximately 100 activists arrested. They had come for her in the early hours in the Rockey Street, Doornfontein home she shared with her large family, pulling her out of her bed. A third-generation activist, whose grandparents were involved in the resistance movement, Shanthie’s family had gone through the motions of arrests and detentions several times before. In detention she suffered many days and nights of intense interrogation. Now, caught unawares, she was called to the stand. She got to her feet. When Liebenberg instructed her to speak, she looked Justice Simon Bekker on the bench straight in the eye. ‘I have two friends amongst the accused,’ she declared. ‘I don’t want to give evidence because I will not live with my conscience if I do.’ When threatened with further imprisonment, she said: ‘I am prepared to accept it.’24

With those three short sentences, uttered in defiance, the foundations of the state’s case began to crumble. Over the next few months, more pressure would be put on her to testify, and appeals made to her family to persuade her, to consider her emaciated condition and subsequent detentions that could follow. Her family steadfastly refused to push her onto the side of the government.

Years later, Winnie Mandela wrote: ‘It is Shanti Naidoo whom I still see vividly in my mind, her hollow eyes, her thin arms hanging loosely out of that pale … yellowish, sleeveless dress, her slanted head when she craned her neck in the dock to hear Justice Bekker on that memorable day. When she declared in a firm voice which left no doubt … How I loved her always, even more now. My admiration and respect for her doubled. Only a person who has been through solitary confinement would realise the amount of sacrifice that lies behind those few words. To my horror, hot tears rolled down my cheeks in the Supreme Court when Shanti said those words.’25

Nondwe Mankahla, a 33-year-old rabble-rouser from Port Elizabeth, was the state’s second witness, but once again Liebenberg was to be stymied. She had agreed to be a witness only in order to stop the beatings during her interrogation at the old Sanlam building in PE – which was to be the venue of Black Consciousness Movement leader Steve Biko’s murder years later – after which she was moved to Pretoria.

On the morning of the trial Nondwe was interrupted during her exercises in her cell and was not even given time to dress for her court appearance – the first time in a year that her comrades, family and friends would see her. ‘I must have looked like I was coming out of a hole after all those months,’ she would say later. ‘I was feeling dizzy in the fresh air.’

Despite the months in solitary confinement, and the prospect of further detention or worse, once she was put on the stand she refused to testify. ‘I do not wish to give evidence against my people,’ was all she said.26

The prosecutor was admonished by the judge, Justice Simon Bekker, who threatened contempt of court charges, to no avail. ‘What kind of witnesses are these?’ he demanded of Liebenberg. But Liebenberg had no answers.

Bekker declared, ‘I find the accused not guilty. You are dismissed.’27

At these words cheers rang through the courthouse and reverberated to the supporters outside, who expressed their elation by shouting and singing. Freedom – at last! The elation would last for just a few minutes, however. With barely a moment to feel the sunlight on their pasty skin or to breathe the clean air, the accused were immediately re-detained under the Suppression of Communism Act for a further 90-day period and taken back to their solitary cells. No doubt reprisals for the state witnesses would come. There was some talk that after the Christmas recess, everybody would be discharged, but this did not happen. Each delay was an axe blow. Still, they carried on, fighting the detention with their stubborn refusal to give in.

Relatives of fifteen of the 22 triallists tried to obtain court orders to restrain the security police from assaulting or torturing those they were holding for interrogation. An IDAF affidavit tried to argue that witnesses were compromised by their treatment and torture. A British student had fingers prodded in his eyes and was beaten into the submission of flimsy information, including that he had made copies of a document for one of the triallists.

In fact, the security branch had a twofold aim. Apart from detaining the 22 away from the public, to silence them and the more than 100 activists who were arrested in the national crackdown, they aimed to break their spirit of resistance.

Winnie Mandela was considered then the mother of the nation, after the arrest and imprisonment of the male leadership of the ANC. She was a force to be suppressed and silenced, kept away from the masses who edged closer to uprising.

The 90-day detention without trial law was firmly in place. The General Law Amendment Act gave the justice minister the power to detain anyone under suspicion in solitary confinement without trial for 90 days, and thereafter for further periods of 90 days – again and again, according to a minister of the time, ‘until this side of eternity’. And they did.

A report in London presented by the IDAF said: ‘As soon as the 22 accused realised that they had been freed of the charges against them, they began to smile and congratulate one another. Then a loudspeaker ordered the public to leave the courtroom. Police with rifles and submachine guns hustled away the small crowd of people gathered around, while other policemen escorted the 22 into a 5-ton police truck. Instead of being allowed to go free, they were all back where they had started – in prison, incommunicado, in solitary confinement for a further indefinite period, for further “interrogation” by the Security Police.’28

Another report from the IDAF, in February 1970, appealed to the world to take notice:

‘Meanwhile, the imposition of apartheid has become progressively more inhuman, more vicious, more cruel, more intransigent, and literally more murderous. Surely the time has now been reached when the ‘bridge builders’ realise that this activity is valueless and serves only to endorse the policies of apartheid. White South Africans cannot claim, as the Germans under Hitler, that they do not know what is being done in their name. They know, and the overwhelming majority do not heed. And they will continue to close their eyes and to stop their ears so long as the rest of the world accepts them comfortably, so long as it trades with them, plays with them, holidays with them, so long as it too closes its eyes and stops its ears. Everything here is authenticated, and the accounts of torture are taken from sworn legal affidavits.’29

Also in February 1970 an editorial in the New York Times head-lined ‘Again, South African Justice’ referred specifically to the Trial of 22:

‘In its treatment of 22 blacks charged with working for the banned African National Congress, South Africa seems determined to outdo even its own appalling record for “legal” cruelty and hypocrisy. The prosecution in Pretoria was having deep trouble making a case against the defendants so it abruptly dropped the charges …

‘The prosecution was obviously embarrassed by two things: One was the triviality of its own “evidence” against the defendants. The other was the persistence of Justice Simon Bekker, rare in South African courtrooms nowadays, in inquiring into the pretrial treatment of State witnesses, some of whom had also been detained for months under the provisions of the Terrorism Act … The prosecution’s strategy seems clear: It will simply hold the defendants under the Terrorism Act until more “evidence” can be obtained or concocted by the bestial methods that have become a hallmark of South African “justice”.’30

The idea was for the 22 and others to be broken, for their resistance to cease. They would be arrested and rearrested seemingly at the whim of the security police – such flimsy things as love letters and postcards as evidence of terrorism.

The group was interrogated to uncover high-level plots and plans against the government, fed the bare minimum and kept unhealthy, but alive. Sometimes not. The detainees’ spirits were low, yet the state feared them enough to keep them under its thumb.

‘The freezing loneliness made one wish for death,’ Joyce testified years later at the TRC hearings. ‘I keep harping on this, because I do not know if people realise what went on when the Boers wanted to kill peoples’ intellect.’

The government of the time did not bank on the strength of their convictions.

The trial, The State versus Ndou and 21 others of 1969, may not be as widely known as the landmark Rivonia Trial of 1963/4 which saw the leadership of the ANC imprisoned for nearly three decades. The names of the detainees are not as familiar as those of Nelson Mandela, Ahmed Kathrada and others and yet the Trial of 22 changed the course of South African history and the struggle for liberation in its own right. By the ‘state witnesses’ refusing to testify, the case collapsed.

The detainees were eventually released in September 1970, and the slow machinery of the movement continued.