Literary Autonomy on Trial: The 1974 Cape Trial of André Brink’s Kennis van die Aand

Chapter 13
Literary Autonomy on Trial: The 1974 Cape Trial of André Brink’s Kennis van die Aand 

Ted Laros

In January 1974, a decade after the Rivonia trial, André Brink’s novel Kennis van die Aand (a novel that was translated by himself as Looking on Darkness) was banned in South Africa by the Publications Control Board, the administrative censorship body that was instigated by the Verwoerd government through the Publications and Entertainments Act of 1963.2 Kennis represented Brink’s first “roman engagé.” One of the main threads of the narrative describes the tragic relationship of a “Coloured” man with a white girl of English descent, a relationship that was illegal under apartheid law. From various pieces that Brink had published in the course of the late 1960s and early 1970s,3 it had become obvious that he was aiming at contesting the apartheid system. In rather unmistakable terms he had stated in an article that appeared in the anti-apartheid newspaper Rand Daily Mail of June 20, 1970:

If it is true that Afrikaans writers do have greater freedom vis-à-vis censorship than others … what have they done with this freedom? How have they used it? The depressing answer is: no Afrikaans writer has yet tried to offer a serious political challenge to the system … We have no one with enough guts to say: NO … [I]f Afrikaans writing is to achieve any true significance within the context of the revolution of Africa (of which we form part) and within the crucible in which this country finds itself, it seems to me it will come from these few who are prepared to sling the ‘NO!’ of Antigone into the violent face of the System. (Brink qtd. in Pienaar, “Histories-Juridiese Aspekte” 243)

Quite clearly, Kennis van die Aand constituted Brink’s own Antigonian “NO!” The apartheid censors responded by ensuring that the novel became the first literary work in Afrikaans to be banned under the PEA (cf. Brink, Preface 10; Davis, Voices of Justice and Reason 116).

The censors banned the novel on political, moral, and religious grounds. Brink and his publisher Buren appealed against the censors’ decision to the Cape Provincial Division of the Supreme Court, and on August 5 to 7 of 1974, the Cape Court dealt with the case. Brink and Buren’s appeal did not just represent an effort to have the book released; it was just as much a struggle for literary autonomy, an attempt to resist the state’s grasp over the literary field. With Brink’s newly undertaken shift from a rather autonomist to a full-blown engaged conception of literature, that is, with his new politicized, subversive conception of literature, this also meant a struggle to maintain, or rather create, a platform from which to launch (discursive) attacks against the apartheid system. Unmistakenly, Brink and Buren laid claim to a far-reaching degree of institutional autonomy for literature in their appeal. If their claim would be acknowledged by the Court, they would succeed in opening up a space for the kind of dissident discourse that Kennis van die Aand presented.

On October 1, 1974, the Cape Court handed down its judgment, which declared that the appeal should be rejected and the ban, thus, upheld. Yet, although Brink and Buren’s appeal thus evidently did not succeed as far as its individual dimension was concerned, a closer look at the judgment reveals that on the institutional level, Buren and Brink—and, hence, South African literature as a whole—scored some significant triumphs in the trial. It is the purpose of this chapter to describe these latter triumphs. By subjecting the trial to a cultural sociological analysis,4 it aims to reconstruct how the Cape Court positioned itself vis-à-vis the South African literary field. The analysis of the case will be guided by the following question: How can the institutional and literary conceptual treatment of Brink’s case by the Cape Court be described and explained? In attempting to answer this overall question, this chapter will proceed as follows. The next section will discuss the position that the Publications Control Board5 took in Court. The following section will describe the position that Brink and his publisher took. The next section will present an analysis of the unanimous judgment that the Court came to—a judgment that was, however, underpinned with three seperate motivations. The final section will formulate an answer to the main question of this chapter.

The Position of the Publications Control Board

Let us first examine the objections that the PCB raised against the book in Court, so as to see what issues were at stake. As neither the initial censorship report on Brink’s novel, nor a record of the argument delivered in Court on behalf of the PCB are available today (cf. McDonald, Literature Police 54; cf. also Buren v. RBP 381), and as newspaper reports of the trial do not offer much data regarding its argument either (cf. Peters, Op. zoek naar Afrika 67, 69, passim), the position of the Board has to be reconstructed on the basis of references made to its standpoint in the three opinions that the Cape Bench delivered.

The PCB’s objections can be subsumed under three main categories: moral, religious, and political ones (cf. Buren v. RBP 411). The three categories of objections did not receive an even amount of attention in the argument that the Deputy State Attorney for Cape Town delivered on behalf of the PCB: the “political” and “religious” objections formed the core of the argument (cf. Buren v. RBP 404, 408). As to the former category: it was contended that both parts of the book and the book as a whole were undesirable on political grounds (cf. 408). The argument of the Deputy State Attorney seems to have concentrated on the objection that the book was harmful to the relations between sections of the nation’s population because it demonized whites (cf. 397, 408–9, 421). In order to make the Board’s case regarding the “religious” objections, two theologians were called upon to deliver testimony. Both considered the book blasphemous and felt that it would offend the religious convictions or feelings of Afrikaner Christians (cf. Buren v. RBP 406, 418, 421). Judging from the decisions delivered by the Cape Court, it appears most likely that the ground for these contentions lay in the fact that the work was considered, first, to be employing the Lord’s name idly; second, to be ridiculing traditional religion; and, most of all, third, to be coupling sex with religion in an affronting manner (cf. 400–401, 406–8, 418–421, passim).

One of the issues that the debate in Court was principally concerned with was the question whether the concept of the likely reader should be read into “religious” and “political” articles 5 (2) (b) to (e) of the Act. The South African legislature had derived this concept from the English Obscene Publications Act of 1959 and had incorporated it into its Publications and Entertainments Act of 1963 so as to provide the judiciary with an instrument to distinguish between different types of audiences, who would be less or more prone to be corrupted by certain types of texts.6 In contrast to the “moral” article 5 (2) (a), no mention of the concept was being made in the “religious” and “political” articles 5 (2) (b) to (e). The issue was important, because the concept of the likely reader might be employed to invalidate charges made against a book and grant literature a higher degree of autonomy. The suggestion that the likely-reader concept should be read into the mentioned articles had been made by the attorney of Buren Publishers and Brink. In reaction hereto, counsel for the PCB argued that it should not be read into them (cf. 403).

When it came to determining the likely readership of Kennis—for the purpose of assessing the novel in terms of “moral” article 5 (2) (a)—the attorney of the PCB argued that the work would have attracted “a wide reading circle from the general audience” (404; cf. also 411). This contention was based on the expert testimonies that were delivered in Court on behalf of the Board. A considerable part of the experts that the PCB had called in to deliver testimony were chosen from its own ranks, as the panel of expert witnesses that appeared on its behalf consisted of PCB member and Afrikaans literature professor T.T. Cloete, PCB Chairman J.J. Kruger, PCB member and Afrikaans literature professor A.P. Grové and, finally, a certain Mr J.J. van Rooyen, managing director of C.F. Albertyn Publishers. The PCB’s strategy seemed aimed at convincing the Court that the novel’s likely readership should not be perceived to be made up entirely of a select circle of “strong”—i.e., intellectual, literary socialized—readers, but that its readership was likely to be broad and heterogeneous and that it would by implication also be comprised of “weak” readers. It might also have been, however, that its strategy was (also) aimed at convincing the Bench that the novel lacked the kind of aesthetic value of which the judges might have felt that it warranted special legal protection.

The argument delivered on behalf of the Board did not revolve solely around these more institutional matters though: literary conceptual issues also played a part in it. The latter issues were taken up in response to a long testimony that had been given by Brink. In this testimony he had laid out the literary theory underlying the novel, i.e., the literary theoretical precepts that, according to him, had guided the conception of the novel and that generally would, and certainly should, guide the reader’s interpretation of the work (cf. 390–93; Brink, “Kennis Verbode” 90). Moreover, the expert witnesses called in by the appellants had also made statements regarding literary conceptual matters in their testimonies. In the argument that Grové delivered, he discussed the then highly current bipolar framework which situated “aesthetic novels” (Buren v. RBP 391), the novel as “hermetically sealed universe” (cf. 391), on the one extreme pole, and “‘engaged’ novels” (391), the novel as a form of “littérature engageé,”7 on the other. He argued that Brink was feigning to have written a non-corresponding, “aesthetic” novel, while in reality he had purposely written a corresponding, “engaged” novel (cf. 391–2). To put it in M.H. Abrams’ terms: he was pretending to have written an “objective,” or autonomous, work of literature while having expressly written a mimetic-pragmatic work (cf. Abrams, The Mirror and the Lamp 3ff.)—one that, moreover, contained elements that were not adequate for good literature in the eyes of the Board. Cloete made an almost identical argument as Grové with the only difference between the two being basically that the former categorized Brink as an “engaged” writer in more implicit terms (cf. 392–3, 422). The issue at stake in all this appeared to be the fictionality/transformation principle, i.e., the (judicial) question to what degree Brink’s work, i.e., the sensitive parts of it, effectively distanced itself from/managed to transcend reality.8 The point of the PCB was that Kennis did not succeed in transcending reality: it failed to transform reality into a work of art.

The Position of Brink and His Publisher

The argument that was delivered in Court on behalf of Brink and his publisher Buren was primarily focused on the concept of the likely reader (cf. 403), i.e., both on the more principal and the more practical issues concerning the concept. The more principal part of the argument was constituted by the already mentioned contention that the concept of the likely reader should be read into the “religious” and “political” articles—5 (2) (b) to (e)—of the Act. On the more practical side it was contended that the novel would (normally) have had a limited reading circle, which, moreover, would have been made up of literarily socialized individuals (cf. 387–9, 404, 411)—the kind of readers that were not likely to be negatively affected by the book. The contention that the readership of the novel would (under normal circumstances) be comprised of literati was underpinned by the testimonies of expert witnesses D.J. Opperman, Ernst Lindenberg, I.D. du Plessis, Daantjie Saayman, Leon Rousseau, J.J. van Schaik, and G.J. Coetzee (cf. 405, 411–13). The former three were prominent figures within the Afrikaans part of the South African literary field and also linked to Afrikaans departments of South African universities; the latter four were all high-ranking individuals from within the Afrikaans literary book trade. In the testimonies delivered by these individuals, both intra- and extra-textual arguments were brought to the fore so as to make clear that Brink’s book was not a book that would appeal to a mass audience but to a limited group of literati only. The intra-textual arguments all came down to the contention that because of the book’s “literariness” (cf. 405) it would have made an appeal to the latter public only. The extra-textual arguments comprised a number of observations that mostly concerned the material side of the product Kennis.

Apart from the topic of likely readership, the argument delivered on behalf of Buren and Brink also focused on the question whether parliament had meant for the Act to have a more prescriptivist or descriptivist character when it came to moral issues, i.e., whether it had designed the Act first and foremost as an instrument for decisive paternalistic intervention, or whether it rather, apart from providing a tool to enable certain kinds of interventions, would have wanted for certain freedoms to be respected also. Buren’s attorney argued that it was meant to have the descriptivist meaning, and that a judge thus first had to establish who the likely readers of a certain work were before he could decide whether it would have a detrimental effect on these readers (cf. 384–5).

Literary theoretical issues were drawn into the debate as well. They were drawn in both through the long testimony delivered by Brink himself and by the expert witnesses that were called in by the Buren party to testify in Court. Brink took a decisive autonomist position in his testimony. “Kennis van die Aand,” he declared:

was conceived of as fiction from the very start, and in this respect it is vital to point out that all forms of fiction—and the novel more than any other—during the couple of decades since World War II more than ever before have been studied by Literary Studies across the globe (but most of all in Germany and the United States, with a strong following in Britain and South Africa) as art forms in their own right, to be distinguished from ‘reality representation.’ The essential point of departure from standard works such as Booth’s Rhetoric of Fiction, Stanzel’s Narrative Situations in the Novel and literally hundreds of others, is that the literary work establishes a world of words in its own right, in which correspondences with the world outside are completely irrelevant. The approach, judgment, and test of such a work lies solely in the establishment of the meaningful relation between all elements within the work itself and the essential elements are usually summarized as: characters, action, space, and time. (Brink, “Kennis Verbode” 90).9

In his offensive, Brink thus also chose to rely on the fictionality/tranformation principle. Indeed, he employed it as the main argument to underpin an apparently absolute autonomist conception of literature, a conception which, in turn, was meant to underpin a claim to a far-reaching degree of institutional autonomy—for literature in general, but, indeed, especially for the kind of subversive literature that he felt the contemporary situation in South Africa called for. After having emphasized the hegemonic status of the conception of literature he allegedly adhered to, he drove home his argument as follows:

In writing Kennis van die Aand I could thus a priori trust that the work, conceived as a novel, would be judged exactly in this context and in this manner, and not in any other. For the purpose of still more insurance that the work would only be judged as fiction because it only exists as fiction, this standpoint was printed in a foreword to the book: there it is categorically stated that everything ‘within the new context of the novel … (is) fictive’; and further, that ‘the demonstrable surface of the current affairs (is) not relevant as such anywhere, only the patterns and relations under it are’. (Brink, “Kennis Verbode” 90; Brink’s emphasis)

Brink was backed in his literary theoretical positioning by the expert witnesses that were called in by his party to deliver testimony.

The Judgment of the Court

The judgment of the Court was unanimous: on the basis of the PEA, the book was “undesirable.” However, the three judges had quite different reasons for coming to this conclusion, and so each of them formulated an individual motivation. Not only did the judges have distinct opinions as to the question on which grounds Brink’s work ought to be considered “undesirable”—Judge President van Wyk found it to be undesirable on religious, moral and political grounds; Judges Diemont and Steyn considered it undesirable on religious grounds only. More importantly, the positions they adopted vis-à-vis the literary field and the literary conceptual stances they took were also markedly different. Therefore, I will discuss the individual motivations of the three judges separately.

Judge President van Wyk

The position that Judge President van Wyk took both regarding literature in general and Brink’s novel in particular had many heteronomist traits. This goes both for the institutional and the literary conceptual dimension of his point of view. As far as questions concerning the institutional status of literature were concerned, van Wyk was very clear: he held that the law had a decidedly interventionist aim—which, thus, also implied that it was aimed at keeping the institutional autonomy of literature in check, too. In response to a remark made by Buren’s attorney that all that the Legislator had meant to accomplish with article 6 (1) of the PEA had been to prevent public morals from being corrupted and that a Court could only decide whether certain matter would be corruptive if it knew who would see or read the matter in question, van Wyk replied:

It is indeed true that the aim of the Legislator is to protect public morals, but it does not follow from this that the Legislator compels the Court because of this to establish who will see or read certain matter for the purposes of art. 6 (1) (c). On the contrary, the Legislator wanted to protect public morals on a broader basis, namely by declaring matter undesirable if it to the opinion of the Court deals with certain subjects in an improper manner. (Buren v. RBP 384–5; my emphasis)

That van Wyk indeed employed the Act as an interventionist tool became evident when he came to the concept of likely readership, a concept that could in practice be employed as a means to both promote and curb the autonomy of the reader and, by implication, literature. Van Wyk quite obviously used it as a tool for doing the latter. He conceptualized likely readership very broadly: he argued that “persons whose thoughts could be exposed indirectly to the influence of the book” (383) also constituted the likely readership of the novel. “One could easily think of examples of such indirect influence,” he stated, “like for example where the contents of parts of a book are being read or passed on to others” (383). Not only did van Wyk conceptualize likely readership broadly, he also emphasized that it did not have to be the case that a publication would actually corrupt the minds of readers, but that it was enough when the publication had a tendency to do so (cf. Buren v. RBP 383). Finally, van Wyk resolutely dismissed the argument of Buren’s attorney that the concept of the likely reader should also be read into the paragraphs of the Act in which it was not being mentioned (cf. 384–6). It was the opinion of the Court that mattered in these articles, he declared (cf. 383–4; 386–7). Thus, especially when it came to alleged offenses on the basis of the “religious” and “political” articles of the Act, but also where “moral” issues were concerned, van Wyk was not willing to grant the literary field much autonomy. When van Wyk came to actually establish the identity of the likely reader of Kennis, he, not very surprisingly, did indeed postulate a broad readership. So despite the efforts of the expert witnesses appearing on behalf of the Buren party, van Wyk did not quite envision a limited audience consisting of literary socialized readers for Brink’s novel.