Lawscapes: The Rivonia Trial and Pretoria

Chapter 12
Lawscapes: The Rivonia Trial and Pretoria

Even though the accused were arrested on Liliesleaf farm in Johannesburg, currently an award-winning state-of-the-art heritage site dedicated to the commemoration of South Africa’s long march to freedom,¹ the trial did not take place in Johannesburg. Both the Treason trial and the Rivonia trial took place in Pretoria,² as did several other important Apartheid era political trials. As Apartheid’s capital city, the city of both executions and civil servants, Pretoria represents a palimpsest that carries the traces of its complex relationship with the political trials of that period. Drawing on Philippopoulos-Mihalopoulos’s recent formulation of the notion of ‘lawscape’, I want to investigate the uncanny relationship between the Rivonia trial and the lawscape of Pretoria.³ According to Philippopoulos-Mihalopoulos, the city is law’s greatest testing ground, ‘its loudspeaker and its gaming table’ – the biopolitical relationship between law and the city illustrates a uniquely spatial dimension of juridical power.⁴ Following this spatial reading of law and the legal domain, this chapter explores the simultaneously repressive and productive relationship between the Rivonia trial and the lawscape of Pretoria.⁵

My central argument is that the lawscape of Pretoria shaped the outcome of the Rivonia trial and that the Rivonia trial, along with other political trials, influenced the lawscape of the administrative capital. The notion of the city as palimpsest presents one way of capturing the tautology of the term lawscape. Through the palimpsestic layers of the past and the uncanny I will explore how the city of Pretoria was (as it still is) haunted by other political trials which contributed to a certain legal culture and influenced the Rivonia trial in a certain way, while the Rivonia trial also haunts the subsequent cases decided in the city and therefore forms part of Pretoria’s lawscape.

In using the lawscape as an explanatory framework for understanding the relationship between Pretoria as city, as Pitoli,⁶ and as Tshwane,⁷ and the Rivonia trial, the chapter moves beyond the physical space of the courtroom to the meta-level political space produced and enabled by the strategic encounter between the city and its political trials: how did Pretoria and Rivonia reciprocally shape and inform each other? In other words, what did these trials contribute to the lawscape of Pretoria and what role did Pretoria’s cityscape play in our understanding of these trials?

The chapter proceeds in the following order: the first section introduces the concept of the lawscape as framework for looking at law and city. The second section considers the space of Pretoria and of the political trial. The third section situates the lawscape in relation to utopia, aesthetics and the legal imagination to explore the relationship between Rivonia and Pretoria, and the final section addresses the palimpsestic nature of law and city in considering notions of haunting and the uncanny presented by political trials in the city of Pretoria.

The facetious question, therefore, whether the law dictates the city or the city dictates the law is to be answered with a stentorious circularity.⁸

The significance of the concept lawscape, as opposed to law and space, is the tautological nature thereof. In Law and the City, Philippopoulos-Mihalopoulos explains that the ‘and’ of the title Law and the City does not institute a continuum between the law and the city, but it rather opens the law up to the city.⁹ He continues that the ‘and’ is an indication of how ‘the two have always-already been co-extensive’ while on the other hand the ‘and’ also bears the responsibility of inscribing difference between the law and the city.¹⁰ This is the lawscape, he writes: ‘neither a tautology, nor a simple disciplinary coincidence, lawscape is the ever-receding horizon of prior invitation by the one to be conditioned by the other’.¹¹

The lawscape initiates a discussion on how the city appropriates law and the law the city. This relationship between the law and the city builds on the intellectual heritages of Law and Geography, Law and Space and Law and Architecture.¹² The edited collection of essays around the interaction between law and the city brings together various ‘vantage points’, most notably feminism,¹³ biopolitics and aesthetics.¹⁴

Pretoria is the administrative capital of South Africa and because of a high concentration of government officials, state functionaries and bureaucratic bodies, a biopolitical understanding of the lawscape suitably frames Pretoria’s lawscape. For Philippopoulos-Mihalopoulos, an understanding of the law–city relationship from a biopolitical vantage point presents the opportunity of understanding it through ‘a phenomenology of urban movement … a sensualisation of the quotidianity of law … a legal mapping of sexuality … a criminological analysis of space, or an exploration of the “cognitive unconscious”‘.¹⁵

Pretoria is the capital of administration and bureaucratic functioning of government as well as the capital of executions. Both of these attributes are represented in a biopolitical perspective and therefore also present in the lawscape. Foucault illustrates the ways in which architecture and law are intertwined and the ways in which the city’s construction, its buildings, monuments and layout constructs both the nature and the behaviour of the subject.¹⁶ As examples of this control over the nature and behaviour of the subject, Philippopoulos-Mihalopoulos directs our attention to law’s obsession with naming, categorizing, organizing and tidying. These activities are revealed in the city’s social and spatial working order. On the other hand, the city’s ‘multi-polarity and social differentiation’ assist in highlighting law’s material side: its relation to violence in the sense of its force of application.¹⁷

The Political Trial as Space

This volume asks the question of the courtroom as a place of resistance. However, the courtroom as space, as opposed to place, refers not only to the architectural building of the court itself, but also to the event of the trial, to the surroundings, the publications in the trial’s aftermath and, cumulatively speaking, the ‘world’ created around and by the trial. The world that produces and is produced by the political trial is the ‘lawscape’. It is an interaction between the city and the law. In the case of the Rivonia trial, it is the interaction between Pretoria, Apartheid’s capital city and city of executions, and the law. The possibility of resistance in the courtroom as space lies in the way in which the trial resists the lawscape by changing it and contributing to it. The political trial finds itself within the lawscape and, yet, it has the ability to change the lawscape. Many refer to the Rivonia trial as the trial that changed the course of South Africa. Even though legal culture is often expressed in terms of continuation or inertia, the political trial can in some ways break with the lawscape in resisting the dominant legal culture or at least presenting a challenge to the lawscape by having a lasting impact on it.

From the vantage of the lawscape, the courtroom as place becomes space. The distinction between space and place may seem self-explanatory and the terms are sometimes used interchangeably. Sometimes both space and place are used synonymously with concepts such as location or region. A common way of capturing the difference between space and place is to characterize space as abstract and devoid of meaning. Space, therefore, within this understanding of the distinction, becomes place when meaning is invested in it.¹⁸ Christian Norberg-Schulz, whom I later rely on in the context of spirit of place and its interaction with the uncanny, distinguishes between space, place and character and the whole of the experience of place can be analysed through the aspects of space and character.¹⁹ In his terms space is what is described and experienced in the context of pronouns (under, above, beside) while character can be placed within that which is described with adjectives (quiet, calm, busy, etc.). Place is the coming together of space and character in nouns (river, home, forest).²⁰ Phil Hubbard attributes the distinction to the difference between humanistic and materialistic accounts of geography.²¹ The former, based on existentialism and phenomenology, acknowledges the ‘sense of place’ implicit in all settings and focuses on lived-in place in an attempt to replace the people-less geographies brought about by positivist spatial sciences.²² The latter, drawing on Marxist theories of space, was also a response to the empirico-physical conception of spatiality that viewed the world as a tabula rasa and accounted for colonial conceptions of terra nullius. Materialist accounts of geography focus on space and the power relationships produced by and in space.²³ Doreen Massey’s idea of a ‘progressive sense of place’ challenges the distinction between space and place altogether. She suggests that place is the coming together of flows and therefore not bound spaces.²⁴ Because this contribution is not primarily focused on the intricate geographical distinctions between space and place, my aim is not to explore this rich theoretical heritage in full, but rather to ask how this (in)distinction features in the concept of the lawscape.

The city can be seen as law’s measure and, vice versa, the law is the ‘(in)flexible (un)reliable metallic ruler that makes its presence felt through inches and centimetres of propinquity and distance’ in the city.²⁵ The Rivonia trial, and other political trials, were held in Pretoria for the sake of control, order and security. Hilda Bernstein explains that bringing leading members of the African National Congress to court in Johannesburg would have caused ‘tremendous crowds to gather at the courtroom’.²⁶ This was the case with the Treason trial, which commenced in Johannesburg, but was later moved to Pretoria. All the accused in the Treason trial were acquitted on 29 March 1961. The court found that the prosecution did not discharge its onus to prove satisfactorily that the policy of the African National Congress was violent. Because of this, all the accused were acquitted and it was unnecessary for the defence to answer to the prosecution’s case. Since the prosecution failed in the Treason trial because of a lack of evidence of violence, the arrests at Liliesleaf and the documents on operation Mayibuye that were seized during the arrests were key, because the prosecution now had evidence of violent operations planned by Umkhonto. In a way, and this is evident from the narratives and recorded interviews at the Liliesleaf museum, the Rivonia arrests and documents seized during the arrest were exactly what the Apartheid state was waiting for. This is ironic in light of the fact that operation Mayibuye was rejected at the meeting that was underway when the accused in the Rivonia trial were interrupted and arrested by the police. In many ways the Rivonia trial was the prosecution’s reaction to the failures of the treason trial. The Rivonia trial was held in Pretoria from the start, unlike the treason trial that first started in the Drill Hall in Johannesburg at the beginning of 1957. Both the Drill Hall and the synagogue in Pretoria were prepared specifically for purposes of this and other political trials. The creation of these special courts for the 1956 Treason trial could have been on account of the sheer numbers of the accused and the volumes of evidence used, but the response of the prosecutor and the judges in the synagogue to the application by the defence for the Treason trial to be held in Johannesburg is indicative of a deeper political agenda and another form of spatial engineering by the state. The attack on the venue of the Treason trial came in January 1959 after the remaining group of 91 were re-indicted in two separate groups. The defence applied for the trial to be conducted in Johannesburg instead, where all the accused (and the defence counsel) resided. Writing in the third year of the Treason trial, Freda Troup sets out the conditions of the Treason trial and also explains the arguments surrounding the moving of the venue.²⁷ The defence argued that the venue prejudiced the accused on the grounds that the hours spent on travelling was a hardship, they also argued that this affected the time for consultation between the accused and their counsel, and the time spent on commuting reduced the hours available for employment.²⁸ The prosecution supported its opposition to the application to move the trial by referring to ‘disturbances which occurred in Johannesburg in the early days of the preparatory examination’ and arguing that ‘large cities are “nothing short of dynamite”‘.²⁹

This argument indicates that the city of Johannesburg seemed larger than Pretoria in a more figurative way, which points to the lack of control, surveillance and power to regulate crowds and attendees of the trial in Johannesburg as opposed to Pretoria. It could also allude to the fact that there were more supporters (larger groups) of the African National Congress in the surroundings of Johannesburg than in the much more conservative area of Pretoria.³⁰ According to population statistics in 1960, Johannesburg’s population was already more than a million, with Pretoria’s population just below half a million. Still, it is interesting that the prosecution did not regard Pretoria as a ‘large city’ for purposes of this argument.

Hilda Bernstein’s novel The World that Was Ours captures the difference between Johannesburg and Pretoria (and the resistance of the lawscape) by referring to the geography of the two cities. Pretoria, she explains, is like its climate. Whereas the trial would become intrinsically involved with Johannesburg and would not be easily separated from the city, Pretoria would just ‘smother’ the trial instead of reacting to it.³¹ Pretoria’s setting in a ring of hills protects it, closes it in and accounts for the warmer climate: ‘When Johannesburg is warm, Pretoria is hot. When Johannesburg is hot, Pretoria swelters.’³²

From now on for nearly a year I will travel to Pretoria and back at least once a week, usually more, sometimes every day, and come to know every inch of it; outwards from Johannesburg with intense anticipation; back again with flat resignation. It will seem sometimes that a great portion of my life is consumed with the petrol along those forty miles of the road to Pretoria.³³

Despite the defence’s application to move the treason trial (back) to Johannesburg, it ran and ended in the Old Synagogue that was converted into a special criminal court in Pretoria. Apart from the Treason trial and Rivonia trial the synagogue also hosted Nelson Mandela’s incitement trial in 1962 and the inquest into Steve Biko’s death in 1977. The performativity associated with these courtroom spaces echoes in the ‘performativity of the legal meaning of space and the spatial meaning of law’.³⁴ Philippopoulos-Mihalopoulos calls the performativity of the lawscape ‘a process of receding collaborative performativity’.³⁵ This means that the act of naming in the city includes acts of exclusion, categorizing, the institution of boundaries and, in the context of the political trial, the act of naming someone guilty or not guilty. All of these acts, seen as part of the lawscape, instantaneously ‘name[s], perform[s] and imbue[s] the urban with a universe of legal mythology’.³⁶ On the other hand, where the lived spatiality of the city relies on these legal mythologies it similarly ‘names, performs and imbues law with a universe of urban narrative’.³⁷ The political trial as space therefore constitutes and becomes the city as space and the resistance of the political trial is both curtailed and made possible by the courtroom/city. The lawscape as ou-topos, a place of no place, is the collective imagination of the law and the city.³⁸ In the next section I explore the imagination of the lawscape through different aesthetic engagements with political trials.

Utopia, Aesthetics and the Legal Imagination

The lawscape explores the law’s spatiality in which the city is seen as a multiple locality where the law is incorporated in its making and existence while at the same time presenting a ‘phenomenon that escapes the dimensionality of geography’ and expands to a ‘utopian no-place’ where law and city are inextricably bound:³⁹

As the blind spot of urban reality, utopia offers an interesting vantage point, paradoxically both in (as destination) and out (as critique) of the lawscape, rendering the emplaced observer both aware of the utopian probability and unaware of the utopian impossibility.⁴⁰

If a city can be described as a just city, it means that it is a city that no longer requires law. Similarly, if justice is the utopia of law, then it means that justice no longer needs law and the loss of law signifies law’s utopia.⁴¹ In his own contribution to Law and the City, Philippopoulos-Mihalopoulos uses the perspective from an aeroplane and the metaphor of landing to capture the title of the chapter ‘Brasília: utopia postponed’. He argues that where society suspends itself in the form of self-criticism the result is a reaction against itself. This reaction against ‘its very self’ can manifest as utopia.⁴² Looking at the lawscape from the position of utopia reveals some of the blind spots of the city and of law and connects to the lawscape as aesthetic.

The lawscape, as aesthetic engagement, offers the possibilities brought about by the Situationist International in that this approach highlights the relation between ‘the urban, the legal and the political’.⁴³ The city presents a visual representation of the materiality of law and illustrates, through its physical and discursive environment, the signifying power of law and its entanglement with violence and strategies of control.⁴⁴ The violence, power and control of the city is made visible in the political trial where these displays are an integral part of the proceedings. James Boyd White writes, in the preface to The Legal Imagination, that ‘law makes a world’.⁴⁵ In its insistence on law’s spatiality, the legal imagination here converges with the lawscape. Boyd White refers to different works of literature to illustrate similarities and differences between lawyers, poets and historians and argues that law’s greatest power lies in the coercive aspect of its rhetoric. Language, like law, creates worlds and, with reference to Bernstein’s novel, I look at this world created by the law and at the world that created the law, i.e., the lawscape.

The account of the Treason trial by Troup traces the proceedings by drawing various analogies between the evidence of the Treason trial, forms of literature, theatrical imagery.⁴⁶ The large cage, Troup writes, which enclosed the accused on the first day of the trial in the Drill Hall gave it elements of fantasy and farcical qualities.⁴⁷