Justice in Transition: South Africa Political Trials, 1956–1964

Chapter 5
Justice in Transition: South Africa Political Trials, 1956–1964

Catherine M. Cole

Apartheid: a harsh, mean word that resounds in one’s ears like a trapdoor opening beneath a gallows.1

And before June 12, 1964, there was November 7, 1962. And before November 7, 1962, there was March 21, 1960, and before the day in Sharpeville and before and before there was December 1952, and before the trial for treason there was 1948, and before the infamous apartheid laws there were so many befores. And Nelson was born July 18, 1919. And afterward there was Wednesday, June 16, 1976. And after the day of Soweto, there was September 1977. And after the death of Steve Biko, there had been ….2

There have been so many milestones in the history of resistance to apartheid in South Africa that when one tries to speak on the subject, one often feels the impulse to provide a litany of dates and laws or to hurry, breathlessly, back and forth in time as Hélène Cixous does in the text that opens this chapter.3 Taken from Cixous’ fictional imagining of the life together (and mostly apart) of Nelson and Winnie Mandela, the passage lurches in time, disrupts chronological order, and moves from the realm of the individual to that of the national, from the birth of Mandela to the death of Black Consciousness Movement activist Steven Biko. “And before … and before … and before …,” the sentence runs on. The narrator then shifts to an “afterward,” a time for which there is no conclusion, just a trail of ellipses. Cixous wrote this story in the mid-1980s, before Nelson Mandela was released from prison in 1990, before the passage of the interim constitution in 1993, before the first democratic elections in 1994, and before the commencement of the Truth and Reconciliation Commission (TRC) in 1995–6. She wrote prior to the momentous day of December 5, 2013 when the great tree of Madiba finally fell even as his towering legacy still stands as a humbling measure of us all.

This chapter focuses on three occasions Cixous referred to: the long-running Treason Trial held from 1956 to 1961, a 1962 case against Nelson Mandela that I will call the Incitement Trial,4 and the Rivonia Trial of 1964. This trilogy of trials represents an extraordinary period of state transformation in South Africa. As apartheid became ever more suffocating and restrictive, law courts became battle grounds where the accused performed as gladiators.5 In these political and highly politicized trials, the state’s shifting norms, its new constitution, as well as the cascade of apartheid legislation that continued to flow forth were both performatively enacted and performatively resisted. Law courts became stages of transition in which language, costume, gesture, acoustics, space, protocols, dramaturgy, song, and visual culture served as critical elements in an improvised script. During a period of state transition into an increasingly authoritarian regime, these three trials were occasions of both promise and blasphemy. Theorist of political justice Otto Krichheimer has said, “By utilizing the devices of justice, politics contracts some ill-defined and spurious obligations. Circumstantial and contradictory, the linkage of politics and justice is characterized by both promise and blasphemy.”6 As I argue in my book Performing South Africa’s Truth Commission, the performative qualities of these trials also set the stage for the repertoires that would dominate South Africa’s transition out of an authoritarian regime and into a new democratic dispensation in the 1990s through the Truth and Reconciliation Commission process.7 While it may seem blasphemous to consider political trials staged by the apartheid state as sharing a genealogical heritage with the Truth and Reconciliation Commission, it is also accurate to say both share a heavy investment in the conjunction of politics and theater. Returning to these trials at the time of Madiba’s passage forces us to look anew at the ways in which Mandela, as a lawyer as well as a consummate performer, enacted and embodied a new dispensation long before this imagined future went into constitutional effect.

The charges levied in the Treason, Incitement, and Rivonia trials ranged from treason, incitement, and sedition to attempting violent overthrow of the state. In each case, however, the accused and their counsel and anti-apartheid spectators transformed the proceedings by means of performance through songs, gestures, costumes, and speeches.8 These performed dimensions of human behavior constitute what Diana Taylor calls the “repertoire”—the embodied expressions that stand in relation to historical traces left behind in transcripts, documents, and recordings in the archive.9 Taylor’s book The Archive and the Repertoire: Performing Cultural Memory in the Americas provides new terminology for old conundrums. Whereas in the past theater and performance studies scholars tended to polarize text and performance in ways that were both artificial and rigid, Taylor’s approach provides terminology that is more elastic and flexible. The archive consists of objects such as documents, letters, archeological remains, and maps—objects that seem “real,” concrete, and able to transmit memory over space and time. The “repertoire,” by way of contrast, is embodied memory: “performances, gestures, orality, movement, dance, singing – in short, all those acts usually thought of as ephemeral, nonreproducible knowledge.”10 Taylor posits the relationship between the archive and repertoire neither as a dichotomy nor as being sequentially related (first repertoire, then archive). Rather, the archive and the repertoire are parallel and overlapping realms. The repertoire seems less stable or concrete than the archive, though if we look further this contrast breaks down. As the history of the TRC archive makes abundantly evident, documents can mysteriously disappear, and the collection and classification process is intensely mediated, as is the process of requesting, granting, and denying access.

What is dichotomous between the realms of archive and repertoire are the biases and expectations people tend to bring to their reception: in scholarship, the archive is given pride of place. The archive is perceived as a rich repository of meaning that is worthy of precise and in-depth analysis, whereas the repertoire is not. The archive is seen as immutable, reliable, and unmediated. While intellectual bias tries to locate the repertoire only in the present, it too transmits knowledge from the past and into the future. The scholarly tendency, Taylor claims, is to banish the repertoire to the past, to see it as false, unreliable, and primordial—or worse, entirely devoid of meaning. “The dominance of language and writing has come to stand for meaning itself,” according to Taylor, while embodied practices not based in literary codes are seen as having no claims to meaning.11

This chapter takes as a foundational assumption the idea that embodied practices do have significance and meaning and hence demand our analytical attention. While various studies have mentioned the repertoires enacted by the accused and their supporters at the South African political trials of 1956–1964 in passing, as sorts of colorful accents to the “real” story of the trials, I instead approach these performative repertoires as meaningful and coherent discourses in their own right. An examination of this repertoire gives a fresh perspective on the ways that performance and the law were deployed during a period of intense political transition. Justice and performance were used (and abused) in this era as South Africa devolved from following the rule of law into a police state. More than three decades later, justice and performance were deployed once again when the Truth and Reconciliation Commission enacted “transitional justice” as a means to restore the rule of law.

I argue that an intensity of meaning worthy of analytical attention occurs at precisely those moments when the archive and the repertoire explicitly converge, as they did during the political trials of the late 1950s and early 1960s. For example, the Treason Trial ended in acquittal in part because the police proved so spectacularly inept at documenting the live improvised speeches of African National Congress leaders at their political rallies, the content of which was alleged to be treasonous.12 The problem of incoherent reportage came to light through the disparities between longhand and shorthand transcriptions. One of the accused, Helen Joseph, said that her fellow accused were most distressed by the longhand writers, who were, without exception, “White and non-reporters [whose] garbled, inadequate, reports drew scathing comment from the Judge President even during the trial.” He testily chided the prosecution for its shoddy research methodology: “Sometimes the State employs shorthand writers, sometimes recording machines, sometimes Africans are sent who may or may not be qualified. Sometimes they are not qualified. I am not going to make people employed by the State qualified if they are not qualified.”13 Who would have predicted that the outcome of the largest and most high-profile trial in South African history would depend upon an arcane conundrum of performance studies: how to document live performance?14

The political trials of 1956–1964 must be seen as central to the performance genealogy of the TRC. The concept “performance genealogy” has its own intellectual heritage, with a lineage one can trace most directly to Joseph Roach, who in turn inherits from Nietzsche and Foucault.15 Seeing political trials as part of the performance genealogy of the TRC is important not so we can discover an essence of form or clarify, once and for all, whether the TRC did, in fact, produce “real” truth or viable reconciliation, whether its justice was restorative or a travesty. Genealogy, in the Foucauldian sense, is not about getting to the bottom of things. Rather, performance genealogy provides a means for seeing the TRC’s complex inheritance as multiple, contradictory, and more complex than has previously been understood. As Roach writes, genealogies of performance attend to “counter-memories” as well as to “the disparities between history as it is discursively transmitted and memory as it is publicly enacted by the bodies that bear its consequences.”16

In South Africa prior to the TRC, the discursive practices of officially sanctioned history had been overwhelmingly logocentric while the practices of resistance had been largely located in performance—that is, in the realm of the body. This dichotomy was both racialized and racist, and the state was the chief agent in that racialization. The state passed a torrent of laws aimed at limiting, circumscribing, or eliminating altogether the discursive practices of those who most acutely bore the consequences of apartheid: nonwhites. Black cultures in South Africa had long-standing oral and performed traditions that far pre-dated apartheid. But under apartheid, embodiment came to be linked to either resistance/transgression or to compliance. Hence, the trials staged, in essence, a confrontation between the archive and the repertoire. By the time of the TRC, 35 years later, the gap between the written record of history preserved in the archives and the countermemories recorded in repertoires had become a chasm. The Truth and Reconciliation Commission was intended to bridge this chasm, and it did so by drawing on many resources. Among these were the international traditions of transitional justice, the high-profile quasi-juridical events of the past such as political trials, and the repertoires of resistance cultivated by the anti-apartheid movement.

Befores and Afters

If we consider South Africa’s Truth and Reconciliation Commission as a stage of transition out of a period of gross violations of human rights, when did that period begin? “Apartheid” is surely central to the answer. In addition to being “a harsh, mean word that resounds in one’s ears like a trapdoor opening beneath a gallows,” in Michael Leiris’s phrase, apartheid is an Afrikaans word that means “racial apartness.” Dr. Hendrik Frensch Verwoerd, the South African leader who is usually considered the architect of apartheid, once described it as a policy of “good neighborliness,” a statement that was much parodied afterward.17 The inception of apartheid is usually dated to the 1948 ascendancy to power of the Afrikaner National Party, which inaugurated an “avalanche” of security legislation.18 The Prohibition of Mixed Marriages Act of 1949, the Population Registration Act of 1950, the Group Areas Act of 1950, the Suppression of Communism Act of 1950, the Bantu Authorities Act of 1951—these and many related laws made apartheid ideology operational by tightly proscribing where nonwhites could live and work, whom they could marry and have sex with, what they could say, and what type of education they could receive.19 Apartheid as an official policy was articulated and systematically enforced after 1948, though it was simply an extreme version of racial practices already in place. The fact that the African National Congress was formed in 1912 is a testament to the earlier need of blacks for representation, for even then land seizures and labor practices were racially driven. Under the post-1948 rule of the National Party, apartheid was made manifest performatively through passbooks, separate amenities, separate school curricula, and separate living areas, known as townships in cities and as homeland reserves in the country. The amount of legislation needed to bring apartheid into being was breathtakingly extensive, as evidenced by a huge wall—a monumental monolith—at the present-day Apartheid Museum in South Africa that is covered with plaques inscribed with acts of apartheid legislation. A “pathological proliferation of juridical prostheses,” Jacques Derrida calls them.20 Such prosthetics were necessary to prop up a state that had amputated morality from the law.

While state repression escalated and intensified in the 1950s, the early 1960s were a crucial turning point. Most important was the massacre at Sharpeville in March 1960, during which 69 Africans were killed and another 180 wounded while peacefully protesting, brutally gunned down by the police during an anti-pass law demonstration. “Previously, nearly every ANC leader had been deeply committed to non-violence,” says historian Leonard Thompson. “But nonviolence methods had achieved nothing except a series of defeats at the hands of a violent state.”21 The two leading anti-apartheid organizations, the African National Congress and the Pan Africanist Congress, were banned. The government declared a state of emergency and conducted mass arrests, facilitated by new legislation that permitted arrests without warrants and detention without trial. The prison populations exploded. Anti-apartheid activists began to call the years before 1960 “the legal days”; afterward, everything was illegal.22

For over 50 years the ANC had tirelessly and patiently fought oppression through nonviolent means. But after Sharpeville its policy changed. The ANC formed a military wing known as Umkhonto we Sizwe (MK, or “Spear of the Nation”), which endorsed certain acts of violence as part of the freedom struggle. In 1961, the South African government chose to leave the British Commonwealth and become the Republic of South Africa. The republic’s first act was to pass a new constitution under which one-fifth of South Africa’s people—its whites—determined the fate of the country’s entire population, 81 percent of whom were not white.23 Protesting against this new constitution—an unconstitutional constitution if ever there was one—landed Nelson Mandela in court for his Incitement Trial of 1962.

Not only does 1960 serve as a meaningful historical frame for understanding the period out of which the TRC was intended to be a transition, this year is also the historical frame for the TRC’s mandate: the commission was charged with examining gross violations of human rights that took place after March 1960, the date of the Sharpeville massacre. Even at the time, many recognized Sharpeville as a historic watershed. “The old book of South African history was closed at Sharpeville,” said Paul Sauer just two weeks after the shootings.24 Thus, the Sharpeville massacre marks the beginning of the 34-year period the Truth and Reconciliation Commission was charged to investigate. Of course, gross violations of human rights did not begin in South Africa in 1960.25 However, 1960 was seen by the authors of the interim constitution as a logical starting point for the Truth and Reconciliation Commission’s investigations.26

South Africa in the Dock

The 1950s and early 1960s were a time of intense political change. As the government exerted increasing control over the domain of writing, anti-apartheid opponents responded by means of performance through songs, slogans, and codified gestures, traditions that would become defining features of the anti-apartheid movement during subsequent decades. The state passed repressive laws and Africans broke them. When Africans broke the law, they were put on trial. Yet, in Nelson Mandela’s view, “Our appearances in court became the occasion for exuberant political rallies.”27 In the face of state repression and censorship, the anti-apartheid struggle cultivated a rich and multifaceted repertoire of resistance. Embodied expressions, songs, gestures, dances, and speech acts were its weapons, especially in the early days of nonviolent protest before the ANC began throwing stones and wielding AK-47s. Performed repertoires of resistance attained national and international visibility during the political trials of 1956–1964 and were to remain a common feature of political trials during subsequent decades, much to the irritation of the state. How and what did anti-apartheid activists perform at political trials from 1956–1964, not just with words, but also with their bodies, voices, gestures, clothing, and use of physical space?

“Awful, wonderful, inspiring and boring beyond words,” said defendant Hilda Bernstein of the Treason Trial, which began in 1956, when 156 people were arrested for treason and for planning to violently overthrow the government.28 The accused, identified by the state as 105 blacks, 21 Indians, 23 whites, and seven coloreds, included the leaders of all the major resistance organizations, among them the African National Congress, the Coloured People’s Congress, the Congress of Democrats, the South African Indian Congress, and the South African Congress of Trade Unions. (These organizations were collectively known as the Congress Alliance.) They faced charges of high treason and of setting up a countrywide conspiracy to topple the government and install a communist state. The trial droned on for nearly five years before ending in mass acquittals. Then, in 1962, Mandela alone was tried for inciting Africans to participate in a strike and for leaving the country without a passport. Found guilty on both counts, he was sentenced to five years in prison. Halfway through his sentence, he was again brought before a court, this time with several others, in the so-called Rivonia case. Their alleged crime was sabotage, which carried the threat of the gallows. The Rivonia Trial was Mandela’s final appearance in court before he disappeared from public view for 25 years.

Although South African political trials transpired in what were ostensibly courts of law, the accused freedom fighters often argued that the courts in which they were tried were not, in fact, legal. In addition, the audience these courts addressed went beyond the judges, advocates, prosecutors, and spectators present in the room. The courts spoke also to an audience beyond the walls of the courtroom, to a national and, indeed, a global audience. L.J. Blom-Cooper, a British observer of the Treason Trial, remarked, “Not since the burning of the Reichstag in Berlin in 1933 – with the notable exception of the special trials at Nuremberg – has a trial attracted such international attention.”29 South Africa’s political trials were platforms, show trials, juridical events both inside and outside the law. They dealt with the law not just on an operational level but also on a philosophical one. The trials used semantic opacity, ephemerality, and locus in the body of performance to mediate between conscience and the law.

The Treason Trial

The state inaugurated the Treason Trial as a spectacle with a mass arrest at dawn of over 140 people. Lionel Forman, one of the accused, recalls the highly publicized event:

One hundred and forty families were wakened that morning – Africans, Indians, Europeans, Coloureds; doctors and labourers, teachers and students, a university principal, a tribal chief. And if the names and occupations were analysed, here was a complete cross-section of South Africa. Afrikaaners, Englishmen, Jews, Zulu, Xosa, Basutho, Hindu, Moslem, young and old; sick and healthy; university graduate and illiterate.30

Specially arranged trains and military planes whisked the accused off to Johannesburg, where they were met by a squadron of soldiers “armed as for war.”31 The accused were shipped off to the Old Fort Prison In Johannesburg in a kwela-kwela van, and as they rode, they launched into performative repertoires that became characteristic of political trials.32 Forman recalls, “Now we are swinging in the huge kwela-kwela towards the Fort. They are singing, and I am singing too: ‘Izokunyathela iAfrika’ … ‘Afrika will trample you underfoot’. Unrepentant. People seen through the mesh: surprise and dawning understanding. The thumb raised in reply. ‘Mayibu’ye iAfrika!’” The arrest was a spectacle orchestrated by the state, but those arrested and their supporters used song and gestures to transform military spectacle into a festival of resistance.

When the prisoners arrived at the Fort and assembled in a big hall, the atmosphere was one of elation and pandemonium. “It was like a great May Day picnic, or the most representative of national conferences,” recalls Forman.33 Anti-apartheid activists came together from Johannesburg, Durban, Cape Town, and Port Elizabeth, sometimes meeting for the first time. Forman writes:

Warders wandered about with batons, not quite knowing what to do. White men and black men hugging each other. Black professors and doctors and lawyers. Ministers of religion, a member of parliament. Men being introduced to one another and formally shaking hands as if they were at a braaivleis [barbeque]. Warders had never seen anything like this in the Fort before. They stopped wandering about and huddled together in a whispering group.34

This scene is emblematic of the dueling spectacles that characterized the Treason Trial. The National Party government tried to whip the public into a state of hysteria about “treason” and a “communist threat.” The arrests at dawn, the secret military air flights, and the spectacular headlines in the press were all intended to dramatize the magnitude of this threat as well as the state’s overwhelming capacity to suppress opposition. The trial was also implicitly a rationale for the state’s increasing infringement on civil liberties—its intimidation and surveillance via the new Special Branch secret police. But the Treason Trial spectacle backfired. “It was the oddest paradox,” writes Anthony Sampson, an editor of Drum magazine, an important voice in the anti-apartheid struggle, “that in the very court where they were being tried for treason, the Congress leaders were able to hold their biggest unbanned meetings for four years.”35 For the first time the opposition leaders had a central office—the Drill Hall, where the trial was held. This cavernous military building in Johannesburg was hastily fitted as a satellite court since no existing courtroom could accommodate 156 defendants in its dock. The accused were so numerous that the arrests and legal proceedings had the unintended consequence of fostering relationships among opposition leaders. Nelson Mandela notes:

Our communal cell became a kind of convention for far-flung freedom fighters. Many of us had been living under severe restrictions, making it illegal for us to meet and talk. Now, our enemy had gathered us all together under one roof for what became the largest and longest unbanned meeting of the Congress Alliance in years.36

The great miscalculation of the political trials of 1956–1964 was that in seeking to break political opposition, the government instead succeeded in strengthening it.37

In the face of the state’s escalating censorship of expression, the anti-apartheid movement developed an extraordinarily adaptable, enduring, and politically efficacious repertory of resistance. The freedom songs, the thumbs-up “Afrika! Mayibuye!” salute, and other, more subtle performed interventions in the drama of the trial were all means of protest that the state seemed incapable of regulating, a fact that was increasingly vexing to state officials. The protest repertory was deployed in myriad ways, and song was of primary and enduring importance throughout all three trials. As the musician Abdullah Ibrahim notes, South Africa’s may well have been the first revolution ever conducted in “four-part harmony.”38 There was the “singing music box” that Forman and others describe—the vans that invariably rocked with freedom songs as they transported prisoners to and from the Treason Trial and later the Rivonia Trial as well. Helen Joseph remembers the latter days of the Treason Trial:

The men came pouring out of the goal gate and into the back of the van. I couldn’t see them but I could feel the lorry rocking as they clambered in, and the singing started. The beautiful melodies and the incomparable harmonies as we rode through the streets of Pretoria. Our van was known as the ‘singing lorry’ and the driver was so proud that he sometimes drove us round Church Square, ‘Sing up, sing up, chaps!’ he shouted, ‘I’m taking you for a ride!’39

Joseph’s story suggests the extent to which prisoners’ singing of freedom songs affected onlookers, even the wardens directly charged with their imprisonment.

What was this strange efficacy of song? Hilda Watts, wife of one of the accused, recalls the arrival of vans in Pretoria:

Soon there is a sound of singing, we look up – the buses have arrived! The songs, the raised thumbs, the spirit of courage and unity, all this arrives with the accused in their buses, just as it came with the kwela that morning more than a year and a half ago when they were first brought from the prisons to the Court.40

Memoirs of political prisoners speak eloquently and often of the importance of song as a means of communication while in solitary confinement, as a way of creating a sense of community among individuals of disparate backgrounds, and as a way of knitting together moments in time during the long struggle for freedom.41 During the 1962 Incitement Trial, the crowd that assembled each day often left the courtroom by breaking into song, reportedly “rocking” the courtroom as they spontaneously sang “Nkosi Sikelel i’Africa” (“God Bless Africa”).42 Even at the end of the Rivonia Trial, as the accused who had been sentenced to life in prison were being ferried away, Albertina Sisulu stood outside the court in traditional dress leading a crowd singing “Nkosi Sikelel i’Africa.”43

Another technique of the repertoire of resistance was the manner in which the accused and their supporters performed courtroom protocol. When the Treason Trial defendants first arrived in the magistrates’ court for their remands, they saw that a huge audience had gathered in the gallery. The spectators whispered slogans of support and raised their thumbs in the air, despite the magistrate’s warning that such gestures could lead to charges of contempt.44 As a way of expressing solidarity with the accused, the audience refused to sit even after the magistrate did so. In the spirit of improvised collective action, the accused spontaneously devised another and more subtle means of performed resistance, as Lionel Forman narrates:

The prosecution called out the names one by one. The first few answered with a simple ‘yes’ but then one responded in deep and formal Zulu and the idea caught on at once.

In a variety of languages and in every form of subtle irony came the reply.

‘I am here if it may please your worship’, said Archie Sibeko, Secretary of the Congress of Trade Unions in dignified si-Xosa.

‘My lord, I have the pleasure to be in court’, said Cleopas Sibande in Sesutho. ‘Ich bin do’, said Hymie Barsel in Yiddish.

‘Ndi Lapa’ – ‘I am here’ – said Chief Luthuli.

For a long time there was no Afrikaans, the language of [Prime Minister] Strijdom, but the morning was not to pass without a symbol that there are Afrikaners in the freedom movement too.

‘Ja, ek is teenwoordig’, came the reply when Jan Hoogendyk’s name was called, and the magistrate’s head snapped up.

Once again the roster had demonstrated that the ‘traitors’ speak in all the voices of South Africa.45

This moment inaugurated the juridical space as a forum in which the agon between the apartheid state and anti-apartheid resistance would play out. Here we see a call-and-response that set the paradigm for much of what followed: the prosecutor calls the names of the accused and they respond in unexpected ways, their language and tone asserting individuality, difference, and irony. The audience is called to stand and they do so, but then they refuse to sit according to normal courtroom protocol. Spectators introduced hand gestures (the thumbs-up sign) and slogans (“Mayibuye”) from another public sphere—the political rally.

The Treason Trial was a spectacle that attempted to respond most directly to a counterspectacle, the political rallies being staged throughout the country by the anti-apartheid movement. The political rally was what the political trials were intended to curtail. The charges of the Treason Trial largely resulted from an extraordinary gathering in Kliptown held in 1955, when a great tide of anti-apartheid delegates from across the country met to write the Freedom Charter, a document that would serve as a prototype for the future constitution. “There had been bigger political meetings in South Africa, but the Kliptown gathering was and still is unique in our history,” according to Raymond Suttner and Jeremy Cronin.46 “Seven thousand spectators watched the proceedings. This was certainly the most representative gathering there has ever been in South Africa. It was a real people’s parliament, with one difference. It was not, of course, sovereign.”47 The political trials of 1956–64 were an attempt by the state to stage a spectacle that would compete with and ultimately suppress the spectacles of political rallies, people’s parliaments that were assembling with incredible force and magnitude throughout the country.

When the preparatory examination for the Treason Trial commenced, these two arenas of spectacle converged. A great throng of protestors pushed right up to the doorstep of the hearing. Thousands had assembled in the streets outside the Drill Hall. Yet they were not allowed in. Apartheid reigned inside the courtroom: only a third of the seats had initially been allocated to non-Europeans, and these were revoked when the European audience exceeded the hall’s capacity. “The whites were allowed to take up all the seats meant for the blacks. And the thousands of Non-Europeans who stood patiently in long lines extended round several city blocks—who had stood there for many hours—were left to stand,” recalls Forman.48 When the accused were led into the courtroom, there was not one non-European in the audience. And yet somehow the masses of non-Europeans outside the hall knew with incredible precision what was happening inside the courtroom. The dueling spectacles had finally converged—the courtroom and the rally—and a disarming call-and-response ensued that momentarily connected the juridical space and the political rally. “How word got out to the streets is a mystery,” Forman writes:

But the people out there knew of every move in the court as soon as it was made. They knew the moment the court orderly called out: ‘Rise in court’, and the magistrate strode in. There was a hush outside, and with miraculous timing, just as he sat down there was a swelling sound of ten thousand voices singing “Mayibuye, Afrika”, and then silence once more.49

Once again we see a kind of oddly antiphonal structure, with the state initiating a “call” and Africans answering in unexpected ways. On this particular day, the rally outside the courtroom won the duel. Their booming voices combined with the horrendous acoustics of the Drill Hall, creating such a din that nobody inside the courtroom could be heard, and the court was adjourned until loudspeakers could be found.50 The next day, the state erected a five-foot-high mesh cage for the accused and police dispelled the crowed with batons and gunshots.51 “Everyone in the court stood up and the accused pushed forward in their cage,” writes Forman, adding, “The police were shooting the people outside. The police were shooting the people,” an alarming declaration that we can read in retrospect as a premonition of the state’s new techniques of repression, for shooting into crowds gathered at rallies would eventually replace transcription of speeches at rallies as the state’s primary technique of suppression. In the battle of spectacles, day two of the hearings went to the state. In The Treason Cage, his book on the proceedings, Anthony Sampson describes an encounter that is in many ways emblematic not only of the Treason Trial but also of the many political trials in South Africa that followed. One day during the lunch break, Sampson was sharing a meal with Professor Z.K. Matthews, one of the most distinguished Africans among the accused. Sampson recalls:

Two young Afrikaner sportsmen wandered in during the lunch-hour and, seeing the hall full of natives, walked up to one of them who was sitting having lunch with me. ‘What are these trials about, eh? Who is it they are trying?’ one of them asked. ‘The whole of South Africa is on trial’, replied Professor Matthews, looking up darkly from his soup. ‘You’re on trial, we’re all on trial. It’s ideas that are being tried here, not people’.52

Matthews responded to the casual Afrikaner observers by telling them they were not innocent bystanders: they too were on trial, sportsmen or no. And he made it clear that the primary defendant in this trial was not people but ideas, a sentiment echoed by defense counsel Vernon Berrangé in his opening address to the court:

A battle of ideas has indeed been started in our country. A battle in which on one side – the accused will allege – are poised those ideas which seek equal opportunity for, and freedom of thought and expression by, all persons of all races and creeds; and, on the other side, those which deny to all but a few the riches of life, both material and spiritual, which the accused aver should be common to all.53

Accusations of communism and treason were central to the government’s case. By simply hurling the accusation “communist” at an individual or organization, the state could utilize the powers of the Suppression of Communism Act, passed in 1950, which included, as Christopher Merrett describes:

The liquidation of unlawful communist organizations; the listing of their office-bearers, members and active supporters, and the forced resignation and/or exclusion of such persons from other organizations, including legislative bodies; a prohibition on printing, publication and circulation of documents emanating from or reflecting the aims of communist organizations; seizure of documents; proscriptions of meetings; banning of persons from gatherings and from specified areas; and … deportation.54

The act allowed the state to unleash a torrent of security legislation that curbed civil liberties in every arena. The accused contended that their ideas were not communist but rather were concerned with fundamental issues of human rights, liberty, and representative government. Their approach to the trial was to shift the focus from purported communism to the ideology of apartheid, which institutionalized gross socioeconomic inequities and violations of human rights.

If the Treason Trial was a battle of ideas, a conflict between firing guns and freedom songs, and a duel of spectacles between the courtroom and the political rally, it was also a battle between the domain of the archive and the domain of repertoire. Until 1956, the anti-apartheid struggle was conducted openly with public meetings and a firm commitment to nonviolence. And yet it was largely conducted in the realm of performance, for possessing written documents that the state could confiscate and scrutinize was a liability. In addition, unequal access to education ensured that many of those most acutely impacted by apartheid could not read. So the anti-apartheid struggle was a movement that deployed body and voice as primary instruments of communication. The state, on the other hand, was imposing itself upon its citizenry through escalating degrees of documentation. This burden was nowhere more potently expressed than in the passbook system, which required all non-Europeans to carry identity documents that defined where they could live and work.

But the state’s attempts to document (to archive) the supposedly treasonous speeches (the repertoire) of anti-apartheid activists were often woefully inadequate. Early on in the Treason Trial, it became clear that the state’s primary evidence of treason hinged upon speeches so poorly transcribed that they were “incomprehensible, incoherent and illiterate.”55 These speeches had been recorded by police who had infiltrated and spied on political rallies. But their methods of transcription were erratic and inept, especially among those who could only write in longhand. Political speeches were improvised performances. As theater and performance studies scholars well know, performance presents acute methodological challenges, for it is notoriously difficult to record. In the 1950s in South Africa, the police had access primarily to handwritten transcriptions. “During those years it was rare for our speakers to use prepared notes,” explains Helen Joseph. “And some of the speeches that were being so mangled and maimed in the Court had been made all of seven years ago – and none less than four. But we knew what our leaders used to say; and it wasn’t this garbled gibberish, this double-Dutch, this blood-and-thunder nonsense.”56 So painful did the accused find the Crown’s gross mangling of their speeches that they sometimes even sent notes of clarification to the front of the courtroom as some detective “fumbled through penciled notes,” according to Anthony Sampson.57

But the problem of documentation was not the only difficulty these performed speeches presented to the state. Language in South Africa’s radically multilingual environment was also a profound issue. At one point in the Treason Trial, the prosecutor produced a witness who read to the court a text he claimed was an accurate transcription of a speech given by a Mr Press. Lionel Forman writes:

The detective who was reporting it could not understand English well enough to write down the actual words. But fortunately the speech had been translated into Sesutho for the audience [at the rally]. The detective didn’t understand Sesutho either, but the Sesutho had been translated into Zulu. And the detective understood that. But there was no point in him writing the speech down in Zulu because his officers didn’t understand Zulu. So he had translated the translation of the translation of the speech into his own English while the speech was still on.58

So the spy’s transcription of the speech was three generations removed from its original source—as the text went from English to Sesutho to Zulu and back to the detective’s “own” version of English, with all the potential for error and inaccuracy compounded with each reiteration. If not for the fact that this witness was called by the state to testify in a case about the most serious of offenses, that of High Treason, for which the accused could potentially be executed, this episode would stand as one of the most comical in South Africa’s legal history.

Such absurdities were not uncommon in the early years of the Treason Trial, which, despite its spectacular beginnings, was largely boring. Tedium was relieved by fleeting moments of drama or humor. On more than one occasion, the magistrate had to admonish, “This is not as funny as it seems.”59 But perhaps the Treason Trial’s most bizarre convergence (or failed convergence) of archive and repertoire was not a debate about the methodological challenges of transcribing live performance but rather a demonstration and performative reenactment of this very problem. Advocate Berrangé, during his cross-examination of African Secret Police boss John Tabata, contended that the witness was too illiterate to record a speech in English, even if he had an interpreter. Berrangé promised to put Tabata to a test: Tabata said he took his notes while sitting on a motorcycle and so, very well, Berrangé would have a motorcycle brought into court and everyone would be able to see how he fared transcribing under such conditions. “Little wonder then that there was an air of expectancy in the court the next morning,” said Lionel Forman. “The proceedings are deadly monotonous and the idea of having a motor-cycle in the witness-box complete with detective perched on it, was one which appealed to everyone.”60 The motorcycle when it came had a sidecar and was too wide to fit through the doorway.61 Yet the “show” had to go on. Tabata sat on a chair instead and transcribed a speech delivered by advocate Berrangé which was then translated into not just one but two different African languages:

Berrangé: Afrika! Sons and daughters …

Magistrate: Tabata seems to be agitated.

Berrangé: I think he is very worried.

Magistrate: I know you think it is simulated.

Berrangé: No, no. Not at all. I’m sure it’s genuine.

Tabata: I would like another interpreter.62

In this metatheatrical moment of the performed “play” within the trial, the magistrate and advocate Berrangé observe the witness’s comportment and discuss whether he is “simulating” (i.e., acting) his emotions of panic or whether these are indeed genuine. Berrangé continued with his recited speech, and this time the accused in their cage also began to play along. The courtroom became a theater, a performed replication of a political rally. Berrangé said: “Afrika! Sons and daughters of Africa, just as the sun rises in the East, it is sure that through all our vicissitudes we will achieve the aims of the Freedom Charter.”63 Then, as Lionel Forman recalls, “There was a pause for realistic applause, and a cry of ‘Afrika! Mayibuye!’ came from the back, until the accused remembered that they were still in court.”64 They were performing the repertoire of resistance. As A.S. Chetty, a former executive member of the Natal Indian Congress explains, such exclamations were essentially one’s membership card in the freedom struggle. “The moment you give them [African people] the sign, you’re a comrade. You say: ‘Afrika!’ and they return it: ‘Mayibuye!’ Straight away you’re a comrade. Open, come into the house and talk.”65

At the Treason Trial, this demonstration of a rally was staged in order to reveal the inability of the police to document the crimes they alleged. Yet this moment also created a convergence of the two domains vying for preeminence throughout: the trial and the rally. For a few brief moments, the courtroom became a political rally. It also became a theater, with the proceedings not just telling what had happened but also showing through reenactment. The theater of the Treason Trial involved role-playing: the defense advocate played the role of the accused by delivering one of their political speeches; the accused played the role of spectators, which in South African anti-apartheid rallies was not passive but rather required active vocal interaction; and the policeman played himself. Ironically, the only person who was not “acting,” the policeman, was exposed through this dramatization as a fraud. At the end of Berrangé’s 12-minute, 533-word speech, Detective Tabata had managed to record 144 words, or 27 percent of the speech.

“One thing stood out as clear as the pimple on the end of Strijdom’s nose,” Lionel Forman writes. “The Nationalists had bitten off more than they could chew.”66

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