and for so long to introduce the atmosphere of a magistrate’s court. Pretoria was different. And it was not long before Van Niekerk was in trouble with this Court; the judges soon saw an indefinite future of documents stretching out ahead, and the battle of the summaries began. For a solid eight months, the Court appealed to the Crown to summarise documents but this the Crown could not achieve.
“Van Niekerk’s got document trouble again!” we used to say.
After months of struggle, Judge Rumpff gave in. When he had taken a document himself and summarised it pithily, Van Niekerk would gaze at him in wide-eyed admiration.
“This is a very good summary, My Lord! I was unable to formulate such a good summary!”
Yet it was to another Crown advocate that the most cutting rebuff was given, when he summarised a speech as being on Bantu Education, and it was indicated by Defence Counsel that the transcript suggested that it was about birth control.
Mr Justice Rumpff: “The Crown has great difficulty in summarising but if they start summarising birth control as Bantu Education, they should not summarise at all!”
Early in the trial, the crown called Andrew Murray, professor of Philosophy at the University of Cape Town, as their expert on Communist doctrine. He was no stranger to us; we had sat through his performance once before in the days of the Drill Hall, when Vernon Berrangé had so mercilessly exposed his weaknesses. Now he was back again, claiming to be an expert on Communist doctrine – the only authority to be called. A Polish priest, Father Bochensky, had made an abortive visit a year earlier, only to listen to weeks of argument on the indictment, and returned to Switzerland without ever expounding his knowledge of Communism in the witness box. We wondered whether his mantle had fallen on Professor Murray’s shoulders.
For days on end, the court echoed to definitions and theories and to quotations, as the expert developed the doctrine of Marxism-Leninism. “The negation of the negation” was one of the phrases that caught our fancy, but it was the “dictatorship of the proletariat” that was to prove so important to us in the end, for not even Professor Murray could discover that concept in the Freedom Charter. Reluctantly he had to concede that the type of State envisaged in the Freedom Charter was not a Communist State.
Our Defence Counsel opened attack within minutes of Professor Murray’s appearance, protesting that the witness should not be permitted to give his evidence from notes. The notes were discarded. The professor abandoned himself to extempore replies to the Crown questions. But it wasn’t long before Advocate Maisels was on his feet again. The witness had quoted a statement by Stalin at the Nineteenth Congress of the Communist Party of the Soviet Union. No foundation had been laid for this piece of evidence and it couldn’t be quoted unless the witness himself had been present at that congress.
“No superstructure without substructure!” cheerfully quoted Defence Counsel from one of Professor Murray’s own snippets of Communist doctrine.
The Crown and the Professor struggled on for some days, ploughing their way through expositions of Communist doctrines and lengthy extracts from Communist classics. The Court’s patience was sorely tried, as over and over again documents were rejected in face of the barrage of Defence objections. Mr Justice Rumpff insisted that all evidence must be put on a proper basis, and somewhat desperately asked the Crown, “How must the Court approach this? I ask questions but I can’t lead the evidence for you!”
But when Professer Murray attempted to quote from a speech by Krushchev, Advocate Maisels could contain himself no longer, objecting, “The Court has not been told who this gentleman is and has no judicial knowledge of him!”
Mr Justice Rumpff demurred only slightly. “The Court has judicial knowledge that there is a Mr Krushchev who is a Soviet leader, but the Court does not know if this is the same Krushchev.”
The professor’s evidence covered a wide field. We found ourselves travelling from Africa to China, from the USA to North Korea, although the Defence objected strenuously to the professor’s claim to speak with authority on the foreign policy of the Soviet Union in North Korea.
Legal argument took up much time on the periphery of the professor’s evidence. We wondered whether the witness had ever foreseen these devastating challenges, although he should have been forewarned by his experience at the hands of Vernon Berrangé during the Preparatory Examination. He appeared impervious enough, and repeatedly exposed himself to sharp Defence attacks.
It was a strange sight to see this man of letters passing his comments on a steady stream of books and journals, some 400 altogether, pulled from the bookshelves of 150 people during four years of police raids. It became monotonous, mechanical, almost hypnotic, as the police orderly marched from the prosecutor to the witness box, handed the witness a book, which he would open, it seemed almost at random, and pass judgement on it with a terse “Straight from the shoulder of Communism” or “Contains Communist matter” or “Communist Propaganda”. The volume would be handed back and the orderly would march yet again to and from the prosecutor with ever more books. I became fascinated by the rhythm. The orderly must have walked many kilometres backwards and forwards.
Professor Murray endured cross-examination by Defence Counsel for 23 days. Grimly, relentlessly, his evidence was dissected and remoulded by Advocate Maisels. The witness put up a stubborn, dogged resistance but he was no match for this, the greatest of South African advocates, and one by one his utterances were whittled down. On the meaning claimed by the professor for the word “fascism” as used in our documents, Maisels commented cuttingly, “We hope to establish at the end of the cross-examination that you are about the only person who uses the word in this special fashion!” And on the professor’s stigmatisation of a speech by Chief Luthuli, he was compelled to concede that a reference to trade unions and politics could also be common non-Communist doctrine.
“Why did you not make that distinction in your evidence-in-chief?” demanded Advocate Maisels.
“I was not asked.”
“You are here to tell the Court what it ought to know, but you expected the Court to know that this was also in line with non-Communist doctrine?”
“I expected the Court to know that it might be in line with Communist doctrine and it might not be.”
At one stage Maisels wanted to know, “Was your task to smell out Communism?”
Mr Justice Bekker asked, “What was your mandate?”
“To report on the documents, to read them in full and to indicate where I thought there was Communist association or attitudes of mind.”
“You mean no more than that?” burst out Maisels. And he pointed out again that the witness in his evidence-in-chief had not made it clear that views that he stigmatised as Communist were not exclusively Communist, but could be and were held by others.
Advocate Maisels made it clear to the Court that the purpose of the cross-examination of this witness was first to show that the witness was not qualified to give evidence by virtue of his ignorance of significant factors, and secondly, that his opinions given in his evidence-in-chief might deceive the Court. “If you’d only said in your evidence-in-chief that it was Communist theory, but not only Communist theory – but you studiously refrained from this.”
Returning to a speech by Chief Luthuli, Advocate Maisels commented, “Your answers, Professor Murray, have been less than candid (and that’s putting it euphemistically), and show that you are completely biased in your approach to this case.”
Concession after concession was wrung from this star witness for the Crown. He agreed that “extra-parliamentary” had two meanings, legal and illegal; neither was essentially violent, but either might lead to violence. After devastating and detailed cross-examination on the Freedom Charter, the professor finally agreed that the Charter was a liberatory, humanitarian document and could be the natural reaction of the non-European to conditions in South Africa. There was no clause in it that could be said to be only Communist or that could not be said to be bourgeois Socialist. Defence Advocate Kentridge unkindly reminded this expert witness of his showing during the