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Papj! 239 .
injured he did not aetuall.y inspect the tingers, but he waa
edaO&nt that he would have eeen the bandagee it they wen
bandaged . In an endeevour to extract a conce8sion that van
Elli.nckhuyzen could have: tniled to notice the bandagte counsel
tor the accused Mnt eo tar as to 81l&8est that they Clight have
becOQe eo soiled as to blend with the colour ot !'rans ' skin,
or that FraJl8 might haw kept his hands behind hie back when
the wi tnees viei ted him. Van Bllinckhuyzen dismieeed the
tirst eugge.tion by pointin& out that the cell was lit and
he woul.d have 8een the ba.D.dages evan it they Mire soiled.
He readily conceded that he would not bave eeen them it Frans
kept his bands concealed trom view, but the idea that Frana
woald have done 80 ia purely tanciful . I t was not augs:eeted
that. van E1l1nekhuyzen was an untruthful w.!..tneu . Indeed, he
impressed us as being both honest and reliable, and we think
1 t is extremely W111kely that he wou.ld have tailed to obeerve
that Prane ' fingere were bandaged it in tact they Mire .
W/O. Gerntholtz was present when Frana Kunene
and Stanley .aib1 were arreeted on 30th NQvember. He stated
that at the t1me ot hie arreet Frans was eo drunk that 1t.
would bave: served no purpose to interrogate him . Gerll thol tz
had nothin& to do with Prana' interrogation but vieited him
once at Pleeaielaer betore removing him trom there to Ha.amare-
dale on 20th December. They lett Ple8sialaer in a oonvoy ot
three cars, w.!..th 'rene in hie car, Stanley Jlsibi in W/O.Moore ' e
car and Catherine Ifkhi.ze in a car driven by Lieut . van der
MeMre . They went te Dr . Napier's surgery because all three
detainees / • •••. •• •• ••••• • •••••.
( ,0
(20
•
•
•
•
Pa,lt1! 240 .
detainees wanted medical. attention. He did not kno" what wa8
'll'Tell6 wi th the other two , but Frana told h.1.m that he bad l..n-
tluenza. He toek !'rans into the surgery and left him there
wi tb Dr . Napier. When Frana came back to the car he se" no
bandages on his fingers , and neither dilhe notice at any etage
that day that the finB;ers 'Mtrs injured. He conceded that he
wa8 not looking for Bll¥ IlJUch injuriea and did not take much
notice of Prans that day , but deubted that be "ould have
tailed to notice the alleged injuries to the fingers. He
eaid that be would definitely have noticed it if Pr ans came
out ot the 8urgery "ith his fingers bandaged, and VIe hava no
doubt that he would have done eo .
Gerntboltz admitted supplying 'rans , Stanley
and Phil.emon Mokoene with Bantu beer while they were in deten.-
tion.. AlthoUBh it W88 a,gainst the rules and reguJ.ations he
gave Frans one or two li tre8 ot beer once a week or a fort-
night, and sOCIetiJnee at eli&htly loager interval.s. It ...
obvious to him that theee three detainees 'fII6re dipsomaniacs ,
and 'rana in particu.lar begged and pleaded tor beer to sucb
an extent that be felt sorry tor him and decided to give him
80C11e to keep hiIII Quiet.
80ep trom time to time .
He alec gave lrana tood, tobacco and
He denied tel.ling Frane that be was
being given beer beoause hs was co-operating w.i. th the police ,
or warnina: h1.m not to mentien in Court that he bad been given
it. On the day that Pr6tlB 'fIt88 brougbt to Court fer precog
nition by counsel Gerntheltz had glven him C' .... d the other t1'I'O
detainees six li tree of beer to share between them . He
confirmed that / • •••••••• . .•••• . ••
( '0
(20
•
•
•
•
- 4959- Judpent.
Page 241 .
con!1:nDed that oounul said that Prana was drunk and refUsed
to precogniee him. He waa not inclined to agree that Prnna
1'1'88 drunk on that oocaaico. bu.t conceded that he W8B very
tallca ti va • Wi th regard to the fil.m aho,," at Thornville,
Gerntholtz eaid it "aa or,aniBed by Lieut . Coah •• , Lieu.t.
van der Idente and himael! and attended by the detainees 1fbom
they 'II'tIre looldng after. So far as he could recollect there
lI'8re twelve detaineee: PraJg Kunane, Stanley )laibi, Phile
mon lIIokoena, M0881!1 Bhengu, Sipho 'Iubheka, Lawrence Nguban.e,
IiIdubana, Geral.d Kdl.&loa_, iIIazwi lIIsimang, Peter Ca.oedze,
Thola.n1 Ndawonde and Oscar Mathona! . Gernthol t:t paid for
the hire ot a projeotor and each otticer paid for refreeh ..
menta for hie own detaineea, According to Cernthol tz the
refreshments were Bantu beer, oranges and cigarettes. He
denied that the detainees Mrs given oane epirite. He &leo
denied that Frans wall given any beer at Howick the followi.ng
day . He had no kno"ledge ot the large container in which
Fre.n.s allegedly r eceived hie bur, and msiz1tai ned tbat be
only 8uppl.led the beer in eealed cartons.
{,o
It h clear that Col. Dreyer, COlllClUldi.n& ott1- (20
oer ot tbe Natal. Divieion of the ucurity polic., knew nothi.ne
about the film show or the aupply of be.r to 4ata:1..ne... Cernt_
hOl tz obviously incurred a fair amount of pereonal e%pe08e
and undertook the risk of diecipl.i.nary aotion aga.in.st bi.m8elt
to ease tbe burden of detention for the persona for wbom be
was responsible. He ie a decent looking man, and we are con-
vineed that be was kind to the detaineaa for bumanitarian
ree.sona / ••••••••••••••.•••••
•
•
•
•
_________ ~ __ ,--- - .......... - ----- t1..-.. &d'IUJ~.
Page 242 .
reasons , witbout any ulterior motive. He Save his evidence
in a rela.z:ed and apparently sincere mannar and was not shaken
on any material point , but our overall impreaaion that he was
an bonest witneae is eubject to one reservation . He was
0108ely oroea-examined witb a view to establiehing that be
either heard l'rana deny in Court that be bad reoeived beer in
detention, or learnt ot the denial ehortly thereafter and
faUed to inform the prosecution that it W6S a false denial.
He was adamant that he WIl.8 not in Court when Frana save evi_
denee , but induls:ed in a oertain amount of evn.eion before
tioally etating that he had not been inlo:n:Jed of the talee
deniaL Our impression was that be .as being lea8 than
frank about the matter, o.nd it ia p088ible that on this
partioular 19aU8 he was deliberately untnlthful .
Cerntholtz confirmed that it was on hie in
structions that Sifumba took Frans home on two oocasiona , for
the 80le reuon that Pran:!l wanted to take washing hOllle and
collect treah olothes. Ha said that he aleo instructed Si-
:!Umbs to etay with the detainee at all timee. He admitted
{ ,0
that be vhited hans frequently in the ceUs , and that about (20
once a month or once in two months he would teat (kontrol.er)
'rans ' evidenee by reference to hie statement.
Sgt. Situmha te.tified that on the occasion
that be took Prana hooe in August 1916 they arrived at about
Qiddey and left abou. t tl\'O and a half hours le ter, tha t he
relll8.ined with hana throughout the vieit, and that Frana did
not aha. his ai.ter hie bande or cake any report about their
condi tion / • •• ••••• •• •••• • • • •
o
o
- 4961 - Juag:men'l:.
Page 243 .
oondi tion in hie preeence. He .aid tbnt trom the tUla he
started 4eal.ing wi th Frans early in March 1976 be never
noticed anytbin6 wrong with hill banda or fingernails. He
oonfirmed that on the oocasion of the second vi.it in SepteOOo
ber 1976 Frane ~ Acoompanied by Stanley )laibi and lIokoena .
He denied that be told Frans to keep quiet about being assaul.
ted or reoeiving beer or visiting his sister during the course
of Ms dstenti on, or that be warned PraM of tbe cOllllequenoea
of departing from bie statement . With regard to the film
shown at Thornville , be said that tbe officers present ",ere
W/O . Gernthol tz, Lieut . coet:r;ee and Lieut . wlUdng, and that He confirmed that
tbere lW6re about ten de tainees thers .
they were given or~s, cigarettes and :Bantu beer, but no
other alcohol. He denied that Prans ' statemsnt wall ever
read over to hiD but adm! tted that he acted as interpreter
when Gerntholtz used to qU8l1tio.D FranS on bis etatement from
time to t1c8:, as he did witb )leibi and .okoena alao . Under
croee-eJ;8JlLination be said that this oocurred oncs or twice a
'l'l'gek , 'but wben re-examined be said that he bad been mietaken,
tbat they vieited Prans once or twice a _ell: but only went
tbroU&b biB evidence at fortnightly intervaJ.s. Of course
this ill diUerent to what Gerntholtz eaid , but the evideoce
that Frans gave on 9th October is coos18tent wi tb ei ther
versioo . On that occasion Frane said that it wae onc. or
twice a month that be was reminded of the contents of hie
etatement . Stanley said that it haPpened two or three times
a. month in his caee. Whether it occurred once a month or
more frequenUy / •• ••• •• • •• ••• •
•
• ( 10
•
• •
-~-49,2'---- Judpent ,
rage 244 .
more frequently ie relatively uni.clporta.o.t .
have occurred at all ,
It shou1d not
the best of hie
Sl.tumba appeared to be telling the truth to
reoollection and ability . It BeemB grossly
improbable tbnt he woul.d MV1I lett "_~a u ___ without any police
surveillance for a period of four bours , thereby disobeying
his or ders and runn1 na ..... -~ w ... grave risk of the detainee abscon
ding . and we do not believe that be did so . How, then, did
Julia find out about the injuries to Prans ' fingers, in time
tor the matter to be raised when Prana was cross-examined on
the 9th October 19761 The answer 1s that ahe discovered
nothing about any i!lUch i j n uriee because there were none. It
has been proved b nd eyo all reasonable doubt that Prs.n.s
sutte~d no injuries to hie tin&ers , from whioh it follows
that the story of the beating at Plessislaer was deliberately
fabricsted for tbe purpoe8 of nullit'y1..ne; the evidence ~ch
incriminated accused No.4 . I t also follows that the plot to
nullify the evidence by the •• meana had already been hatohed
by the ti.c:Je P rans was eroes_:nm.1ned on 9th October 1976 and
that Julia was a party to it . Having considered all the
relevant evidenoe and observed the .... ··0··-..... .... of the wi tnus
who gave 1 t we are sati.fied that Frans QIIde the etatelCflnt
(B.xh1bi t "lX"') freely nnd voluntarily d an wae not a8sBu1 ted
or ill-treated 88 alleged or at all .
conclusion l'o'8 have not overlooked the
In arriving at this
po8sibili ty that Situmba
falsely denied having told Prans to keep quiet about being
given beer in custody and bei"'" ' "D tnken to visit his relativ811
on two occo,aions / •••• , ••.• , ••
•
o
o
o
JUdgment.
Page 24~ •
on no occaaioM. .u though S1!umba "'sa an apparently hon.at
wi tDeBl!! it do .. eeem unl.1iely that Frana lJOuld llicply have
teken it upon himself to deny bavi.ag received tbese favoura • and ae it waa against the rules it would have been only
oatural for SitUmba to tell him to keep quiet about the C8.tter .
Ho'lftlver, this waa a relatively unimportant eide - iaaua and the
mere possibility that Situmba lied about it does not affect our
conclwdoo regarding the material iuusa .
StBoley Maibi deoied telling accused No . 4
that he and Fr8l18 bad been assaulted by the police . H. bad
also been kept 10 aolltary confinement since his arrest on
the 30th November 1975. Re said that soli tary coot1nemont
affected h1.m very badly at the beginning but he got used to
it.
1"..
.18 he had 00 readiD,g CI1tter be paaaed the tice by eing.
He did not mention that he was supplied lJith beer and
take n to the til.m abow at Thornville, and claU'oed that be had
been kept entirely alone. It ie clear that he 1'ID8 frequently
reclinded of tbe oontenta of his etatement . I have alreacly
expre88ed my views about thi. practice , In this inatance,
however , &nJ' ioterence that Frans and Stanley were aeraly
pe.rrot1na the contenta of their sutecents carriee wi tb it
another inlerenee, viz. that it ie unlike1y that the etory
ot the atteapta by the accused No . 4 to recruit them for m.lli_
tary trllinina 'I'I8B concocted . If that story wae ooncocted by
the police one "ould expeot both wi tneesee to be fed wi th the
lIace concoction and, b.a.ving been so frequently reQinded ot it,
to repeat it alCIoet verbatim in the wi tnees box. But the
nucerous discrepanoiee / ••••• . 0 ••
( 10
=
•
•
•
•
- 4964- Judgment .
P!l,!!j!! 246 •
nuoerous discrepancies between the wi tneeses tend to refute the
notion tbat the atory waa concocted . Mr . Muller sought to
meet this point with a contention that the discrepancies Mire
only revealed by cr08s-examination. It ia tnl.e tha t several
ot the discrepancies ecerged or became clearer as the result
of cross-examination, but many are apparent troc a comparison
of the versions which these wi'tnouee gave in their evidance_
Moreover, it the story had been tabricated it is
hardly conceivable that it would have been told wi th such a
weal. th ot detail .
Continuing with Stanley ' s evidence , he said
that on 14th October 1915 accused No . 4 met hilil. in. the street
and said that he wanted to eee hi.n that atternoon. He went
to accused No . 4's place and found accused Noe . J and 4
together therll . 'l'herlla!'ter Oscar Mathonai arrived , and at
about 7.30 p oc . the tour ot tbee Slit out on toot to go to
Oscar ' 8 place. On the 'IIIIl¥ accused No . J spoke to some
people in e motor car and tben reported to accused No . 4 that
they had said they "ould cOllIe the next morning wben it got
light. Accused No. 4 explained to Stanley that there Mre
other people with whoa he "ould be gOing , and Stanley deduced
that he was deat1..neC to leDve at d.e"ybreu to go overseas tor
cili tary training. Whsn they arrived at Oscar ' 8 place there
were five or Six other persona there with fthom he was to go
on the journey. Stanley did not know theee people but be
bearC accueed No . 3 addreseing one ot them as Mandla. Some
of the group were eleep1.ne: but others were drinking , and
accused Nos. 3 / •• • •••..••• 0 0 •••
(10
(20
•
•
•
•
JUdgment.
fase 247 .
accU.6ed Noe. 3 and 4 went out on two occe.aions to look f or
beer. While they were out on the second of theee occaeions
Stanby , who dH not want to go anywhere for adl1 te.ry troining ,
took the opportu.n:1ty to slip out and gO hoce. Accused No . 4
e aw biJD the lI8xt day and asked him why he bad run away, and
be made the excuse that he had been euffering fraQ toothache .
When Stanley was croes-e%LUld.n8d it appeared
to be Coa:cOD cause that he went to Oscar ' . placo one eveni.ng
in Ootober. It was put to h1.m tbllt it was not the 14th but
the 30th October, and it l:I8.y be that he wna wrong about the
date. It w.as turther put to hie that there was no question
or Me going sway with the other people Who were at Oecar ' e
place , that accused No.3 had said nothing to accused No . 4 on
the way to Oscar' B home about people cooing the next morning ,
and that in fact accuaed No . 4 did not WBl.k wi th thee to
Oscar ' s place . Por the rest, Stanley's account ot tmat took
place that night was left unchallenged .
'the lallt occasion that Stanley spoke about W88
the eveniJ::Ig of the 26th Nowcber , nen JOBeph Dblamini (whOlD
be called Z1hl.u.zi) came and 'fOke hie . He said that he found
accused No . 3 with Zihl.u..ti and accoopallied hio to accused No .
4 ' s bouae . 'rhey me t up wi tb four other persons and ..ant wi th
tbem in search ot No . 4 accused . They eventual.ly tound acou.
sed No.4 at 'r080 Ngcobo' S place and be sent acoused No . 3 to
go and call another boy by the name of Phunsula . While sccu.
sed No . 3 was away acoused No.4 told Stanley that he should
80 hOIDe and get a chaJlge of clothing because he wanted him
to go with / ••••••••••••.••••• •
•
• (10
• (20
•
- 4966- J udgment.
l'!.g! 248 .
to 80 wi tb the others at 2 or 3 0 ' clock in the Qorni..na: . Accu.
sed No. 3 oould not find PhungUla . At a lster etase accused
No. 4 sent Stanley and accused No . 3 to oal.l Tholan1 Ntombela ,
but they oould not tind hie either . When they re turned to
T080 ' . place Stanley heard acoused No .4 telling accused No .
3 that he was going to look tor another cotor car . Shortly
thereafter , 'fIhen they were all leavi.n6: the house , Stn.cl.ey
told the others that he MUll tirst 80ing to the lavatory. He
hid in the ~avatory unt1~ they had gone and then went home_
His evidence tho.t nccuaed No . 4 told him that he ,",ould be
going 'Ifi ttl the others that morning was disputed by cOWlSel
for the accused , but is 8troDgly supported by the unohnllenged
evidence of Sipho Kubheka to the ettect that "hen they trent
back to the roce ot accused No . 4 ' . girl triend the boy from
lIaibi ' s house announced that he 'If8.I!I going to pass "ater, and
then disnppeared . If there W88 no question of Stanley going
'lfith George Mkbize and mungiee liIthalane that evening it i8
passing etrange that he resorted to a subtert'Uge to get awa,y
trom them .
(10
Stanley ' s evidence must be treated 'll'ith caution (20
because ot the manner in which it was obtaiMd 1llld the t act
that he was in the position of en accomplice . liIr . lIuller
subaittad thnt on bis OYfll evideDce Stnnley was an accomplice
bec:luee he led accused No . 4 to believe that he '!'181!1 sequin_
cine 1.n the proposal. to go abroad tor CJilitary trainiJlg . I
think that Stanley probnbly 'fI'!lS an accomplice, end I have in
&.OJ' event iMtructed cy aseeseore 'to treat bie e.s en 8CCce-
plics . However , he '\II'M an extrecely good wi weBS, "cether
hie performance / •••••••.••••
•
•
•
•
- 4967- J'udgment.
Page 249 .
his pertormance i8 judged by the content ot his evidence or
thll manner in MUch be gave it . We do not consider that under
the circWIlsto.nce. the tact that Prans Kunene reclltlted his evi_
dence ill II. eufi'icient reason tor rejeotillB; or even dOUbting
stanley'e evidence relative to the SBOe evente . ot course
the evidence which Pra.na himaelt gave cannot be relied upon
in any way , tor the simple reason that he recanted it. It
t oll OM that it does not eerve to corroborate Stanley' s
evidence. However, in view at the tact that talse allege..
tiona at aaeaul t were deliberately fabricated to nullity the
evidence that Prana gave, the tlere tact that be reca.nted it
i s no obstacle to the aeceptanc:e ot Stanley ' s evidence .
Ac:cording to the indictment the pereoOB whom
accused No . 5 rec:ruited or attempted to recruit ftCre :
(i) Elijah Buthele%i; (ii) Sipho Sokabase; (11i) Hanstord
lIadlala; (iv) lllaoUa Hadebe; (v) BeJcumud lUabilla ; (vi)
Nkosinathi Ollcar Ntocbela; (vii) Praieegood Thembirikosi
lIaguba.nej (viii) Isaac Shi!mbiaa Ztmu and (ix) lIandlenkod
Chrietopher Hadebe. The tiret tive ot theee persona were
ca.l.led &8 State witnuses , and we proceed to exami.ne their
eVidenc:e .
Sipho Sokabaae pa.seed bis matrio in 1975 and
is ~sently atudytns at the Newcastle Teachers Trainiag
College . A brother ot aooused No . 5, Jabulane (i.e . Praise_
good Themblnkoei Jdagubane) was the 10V1lr of Sipho ' e sister.
Sipbo testified that on an Occ38ion in July 1975, when he waB
travelling hOIl)8 froo ecbool by bus . accused 1'10. 5 eng8B8d
him in / • •• • ••••••••••••• •• • • • •
•
• ( 10
• (20
•
-4968- Judpe.nt .
Pa ge 250.
hie in c:onver83tion. Ac:cused No. 5 enquired about his
echooling and hie plana for the ruture , advised hil:l to con
centrate on hie studies so as to 1cprove h1o.aelf, and eaid
that he would like him (Sipho) to coce and see him it he
found the time to do eo . Soce time later Jabul&zu! Maguba.n8
cec.e and told Slpho that accuaed No . 5 wnn.ted to eae bil!I .
(There ia evidenc:e that Jabull!Ul8 told Sipho .mat accused No.
5 wnn.ted to aee h10 about. but that evidence haS been ignored
because I am not eatietied that it wn.e adcdssible) . On the
way to accused No . 5, at Jabulane ' s suggestion , they c:alled a t
Elijah Buthele:ti's plaoe and got him to ac:coopany them. When
they arrived aocused No . 5 WM in lde kitchen. They Mint
with hio to a portion ot tho verandah Which had been enclosed
for use. as a bedroom. Then ac:cused No . 5 told them tbnt he
wanted boye of their ehe to go to Rhodesia for military train
ing and thereafter to return to n&ht B8&in8t the white people ,
because black workers were not getting proper toJO,ges for their
work and had no "place.. . Accused No. 5 aaked Sipho whether
he would go for trainins and he replied that he c:ould not go
bec:ause he wns still at echool . That "908 the c:onversation as
r elated by Sipbo in his evidenc:e-in-chief . In re ply to leaeling
questions in croe8~::mmination be added that acc:ueed No. 5 aleo
add that they would be blac:k soldiers of South Afric:a, that
on their return they would teacb others to be sol41ers , that
atUl othen would go to Bhodesia and on their return they
would &11 join 10rcn and tight againat the white people . He
was cri ticlsad for hanns oo.i ttad to eay this in his erldence-
in-chiet , and his / ••• •••••• • ••
( 10
(20
•
•
•
- 4969- Judpent.
Pm 251.
evidence- in-chiet, and hia explanation tor the omiaeion was
80mewhat con!'Used, but we do not think 'that it renecta upon
his credibility. He appeared to be an earnest young man
who was genuinely trying to remember all the details ot the
1 H. -' •• agr8e4 under cro.,.,-axamination that in. CODvtlreat OD e ....
tbe couree ot the conversation accused No. 5 eaid that it 1'8.8
beet tor tbe Black8 to organise the workers 80 that they
would act join.tly to improve tbeir working condi tiona.
ever. when the Cou.r1i q,ueationed him about thie it tr8.ll8pired
tha.t the joint action ot the workers that accuaed No. 5 ftSS
tal.klng about was military training . Finally, be agreed
tbat whUe they 'fI'8re at hie bouae accused No . 5 enq,uired about
hie atudiu again and advieed him to concentrate on them . He
sa1d that about a week later be again aaw accused No . 5 on the
bus . On this occasion accused No . 5 asked h.im once again
wbat he bsd to ..,.y about the proposal. (that he undergo z:dl1_
wry training) Bnd he gnva the ae.me reply aa before.
Elijah Buthelezi cOn!irmed that at about
7 p.m. one evenillB in Juna or July 1975 he went with Jabulane
and Sipho to the house at accused No.5. He aaid tba t on
their arrival Jabulane called accused No.5 trom a bedroom and ,
at the euggaat10D ot aooueed No . 5. they _at to th8
portion ot the wrandah tor a discussion. Elijah'a
8nel.oaed
V1Irsion
ot the converaation W88 that accused No.5 a&1d that he
wanted them to go to Rhodesia to learn to be eoldier", that
they ahouJ.d be black 801dhrs ot South Africa, and that .men
they returnsd atter receiving their training they would have
to train other / •••••.••••••
•
• ( ,0
• (20
•
- 491<>-
Pee 252 .
to train other people as aoldle". According to E'lljah
there W88 no explanation ot the purpoae ot all thi8 training
ot 801diers . He eaid that he , Sipbo and Jabulane told aocu.
8ed No. 5 that they were not prepared to undergo trniniDB 218
8oldiers , and he 8aid that they should go and think it oV1lr .
He denied tbBt accused No . 5 advised them to concentrate on
their stu418B, or aa.id that it wouJ.d be beat tor the blacks
to organise the worker8 80 that they would aot jointlJ to
improve their workin& condi tiona. It was put to h1.c that
accused lto. 5 aaid thie in the course ot a general 41acus8ion
which took place a!'ter Jabulane had produced a ne'fI'BpBper
report about the people trom Rhodeeia leaving the oountry to
join. B1ehop .IIuzorewa in Idoce.mbiq,ue or aome other place out-
Bide Rhodeeia. Elijah denied thiS, and Sipb.o alao said that
he saw ' no neWlipsper there. It wae put to both ot them that
there was no tal..k tmat&oever about going to Rhode8ia tor
m1l.i tery training.
The difterences between the ver8ions of Sipbo
and Elijah regarding their conversation with accused No . 5
( '0
are obvioua - and ao are the ei.a:d.laritieB . The contradictiona (20
and diacrepanc1ea are due e1 ther to laps .. ot coneentra tion
or mecory which are only to be upec ted, or to the tact that
theae wi tnU8es have concocted a talee story to incriminate
accused No.5 . As to that, Sipb.o admitted that hi. father
ie a member ot the C. I . D. and hi8 Wlcle a member ot the Spec
ial Branch, and he al80 adclitted to bein& unhappy about the
fact that Jabulane bad impregnated his aieter without
marrying her . / ••••••••••••••••••
o
•
•
o
P!B! 253 .
marrying ber. Ho .... v.r , we could !lot detect a hint of mlice
in bie aUi tudll to'll'fU'dll BCCWled No.5. No reason baa been
discl o8ed aa to wby Bl1j6h "oul.d wisb to incriminate ac:cueed
Ko . 5 tal.nly. Nei ther of then two 'ffi trleasea WiU detained
for l onger than it was nece.sary to take a atlltemeat from
bie : twelve bours in Slpho' s cae8 and 1e88 in the C8e8 of
Elijah. W1 th regnrd to the manner in which the police
Clueationed them, Elijah said that they ClDde it clear that
they knew that be, Slpho and Jabule.ne had gone to ••• accused
No. 5 on a particular night in June or Ju1y 1975 , and e.aked
him what they bIld done on that occasion.
sage in alpho's cros8-examin!ltion readB:-
The relevant pas-
" And WIre you asked to tell them about No. 5 accused? - Yea.
Did they tell you they knew that you and Jabwane and SlphO had gone to hie bouse on a certain day'? - Yes , they Baid they beard 1 t [roo Truman (aceu. .. d No . 5).
Uld did they 8&y tba t they had heard from Truman t.bat be bad asked you to go to Rhodesia to learn to be soldiers? -- Yes.
And becsWle they told you it came from TnuII!ln you 1'f'eren't go1.n8 to argue about that. were you? -- No . "
tba't is indicative of BUggestlve questioning , but it cer'tainly
does not indicate tha't Sipho W88 being 1nfiuenced to say a.n.v-
thine that was not true. Sipho said that he had been .hown
hi. statement three time. since he made it in November 1975,
and bad been threatened with arrest if he departed from it .
Rli 3ab. wa.e not saked wbe ther be had seen his . The deaeanour
of thsse two / • •• ••.•• . •• • ••••
(10
(20
(30
•
•
•
•
---~ .. - . --...-
ot theee two witnaeae. w .... excellent. Notwi thata.nding the
discrepancies 8l1d contradictiOns bet..een thec . we gained the
firm impression that each ot them was telling the truth to
the beat ot hia recollection and ability .
Mandla Badebe livea at Sobantu and is a etudent
male nuree at the Bdendal.e Hospital. where accused No.5 was
employed as a trainee caterer . They were in the babi t of
travelling to and trom work together on the hospital. bue •
Hadebe said that on an cccasion towards the end of 1975 - he
was not aure whether it wns November or December - wbile they
were aeo.ted together in the bus on their way to work . accused
No.5 enquired about his progress as a student male nuree and,
in the course of the conversation which ensued , auggested
that they should go overaeaa to undergo tro..in1ng as soldiere ,
with the object of returning to overthrow the Governc.ent . He
eJ.eo said that Hadebe r with his knowledge ot nursing, would
be uaerul it fightin.s broke out in this country . Hadebe
rejected the eU&8ution, aayin.s that it frightened him and be
would bave noth1n.s to do with it . This waa the only occasion
on which accused No . 5 IDIlde the auggestion, and they 41d not
lIleet Bg9.in before Hadebe was detained in Dececber 1915. He
was only detained tor a te" hours wb.ile bis statement wa..a
taken and reduced to writing . He claiaBd tha 10 he had never
been ahown hi. statecent since then and ba4 not even been pre -
cognised by the prosecutor before entering the witness box .
Counsel tor the accuud put it to the witneee that in the
couree ot tbe discus.ions whicb they frequently had wbile
travelling / • • •••• ••.• • ••• • • •••••
( 10
(20
•
•
o
- 4973- J'udgment.
Page 255.
travellifIB together on the bws it was be who adopted a ai1i.oo
tant approach. whi.l.e accused No . 5 made it clear that be waa
opposed to violence and favoured peace!'Ul. change . Had_be
denied theee al..legations , and hie evidence w:18 not .baken in
the 1!J1.lgh"te&t under croee_lI%IJIdnotioD.
Hadebe ' 8 delll#anour was very good, and we were
convinced that be wall truthful 1.0. every raepeot Wltil counsel
for the State very properly indicated that be bad falsely
denied having been precogniaed. That caste euapicion OD hiB
claim that the police never showed biJ:I hie statement tor the
purpoee of reire_bin.!!; hi. CleIDOry, and it must be borne 1.n
mind as • footor relevant to the asseasment of his credibility
as • ri tness. Another factor to be bor~8 in mind ie that
accordina to the indictment it wtUI in Septembe!" 1975 - not
Nov.aber or December - that accused No.5 attempted to recruit
him . IIr. Muller conceded that the accused was not thereby
prejudiced in hill detenee 1 and in termll of 8ec. 176(2) of Aot
56 of 1955 it 18 unneees8ary to emend the ebarge in thia Ttl ....
peet, but the i.o!'erenee "mains that Hadebll m.entioned II dit.
ferent month in his sta"U!JDent to the polioe. Mr. Muller
&leo eubmitted that it was inherently illljlrobable tbat IICau.
ae4 No. , "ouJ.d bave sUBaeeted,"out ot tM blue", that both
of ~ IIhoul.d go overaeaa for c1litary training. He argued
that accused No . 5'. ver.ion of their dieCUBSioD8 was the
mors probable by for, and that Hadebe could not be believed
"ben he profu8ed total. ignorance of trade unions and claimed
that he was not intereeted in various other topie8 which he
allegedly I .. .......... . ...... .
(10
(20
•
•
•
•
Page 256.
a11e~dly diecusaed witb accused No.5. It doell seem impro-
bable that a mBn in Hadebe ' s position would have no idea of
what a trade union is , and no intereat in politics, current
affairs or anything al8e beeides liq,uor and wooen; and if
be lied about thelle matter s it would not be eate to rtlly on
bis version ot the diecussion or ditlcuseions he had with aecu-
eed No.5.
Tbe wi tneBS Bekumuzi Klabba aleo lives at
Sobantu. He bae known accused No. 5 tor many Yllers , and they
used to get ott at the 8ame bus atop "hen travelling to their
respective homes . Klebba testified that as a result of a
cooverllation he had wi tb accused Ho. 5' s Y0l.1ll&er brother
Bheki in Illy 1975, hs went to see accused No.5 at hie home.
Accused No . 5 rsfused to di1lCU88 anythillB wi th him on that
oceasion becauss other memberll ot hie feoily were present .
Ho_ver , they did have a diecuseion on an oceaeion 1n July
1975 after they had alighted from a bus at Sobantu . On that
occaa10n, according to Hlabilla, accueed No. 5 Baked him whether
he realised that they were being oppres8ed . Hlabiea replied
that be did, and asked how they could tree tbemselves , wbers
upon aceWled No. 5 lIaid that the way was tor the black people , to get together and go abroad to learn to handle a gun .
Klabiaa wanted to know preciaely where tbey would go for sucb
trB.ini08 but accused No. 5 retuaad to tell him unles8 be first
agreed to go . Hlabisa was not prepared to agree without kno_
iag more about the DStter, and they parted. on that note . On
two subeeq,uent occasiona, one in August and. the other in
September I .... ........... .
(10
(2C
•
•
•
- 4975- J'udglter.t.
Page 257 .
Septe.ober , accused No.5 Bsked Hlab1ea 'fI'hether be was prepared
to accept the proposal 'fI'hich he had made in July. ffiabiaa
aaid that these subsequent approaches Mre aJ.so made atter
they had alighted at their bus stop and ..ere on tbeir MJY
bome. He made it clear to accuaed No.5 that he 'fI'1lS not pre-
pared to go away for tra,in1o,g, and the aubject 'fI'a8 dropped.
Counsel for the accused put it to HlabiaB that
be was a heavy drinker, that be arrived at the hOlDe of accUBed
No . 5 on one occasion wben accused No . 5 WIlS absent, tllat be
... as drunk, and. spoke wildly about 'fII8.nting to 8ee accused No . 5 {10
about cells and tightirlB, saying that be would bring a tape
recorder because he wanted to know everything that accused
No. 5 had to ssy . It 111'88 fUrther suggested that he was
d.runk on the next occBsion tbat he visited accused No . 5,
during JuJ.y 1975 , and that accused No. 5 then reprimanded bi.c:J
for his loose talk on the earlier occasion. It was put to
him tbllt his story about accused No . 5 trying to recruit him
for military training was Simply not true, but no reason was
suggested as to "hy tbe witness should be.ve oade fusa alla-
gations against the accused. lUabiaa said that be couJ.d not
remember going to sea accused No. 5 in a drunken state and
tal.kins wildly about cella and fighting. He denied tbBt he
bad been drinking when be visited accused No . 5 in July,
and indicated that this was the oocasion on which accused No.
S re:fused to discuss matters 1II'bile hia wife and others Mrs
present . Hlabisa mo.de 8 very good impreSSion on us while
be was in the wi tness bOX, and there ia nothing to render his
evidence / •• •••••• .• •• •• •
(20
•
•
•
•
-4976- Judgment .
Pal5! 258 .
evidence euspect. He W88 not kspt in detention and there
ia no suggestion that be lf8.S reminded of the contente of hie
atateoent 8B certain other witneeses 'tIIIere.
Hansford Madlala gave evidence to the etfect
that accused No . 5 tried to recruit him at Edend.a1e Hospital.
where they were botb employed in the catering department.
Thia be.ppaned some two months atter Madlala had etarted work_
ing there in August 1975. He said that accused No . 5 intra-
duced the topic by complaining about the low waaes and 1n.fer-
ior eduoation that the black people were receivillg . The
next day accused No . 5 showed him a newspaper cutting of
pbotograpbB depictins soldiers nth guns , and pointed out that
the soldiers were of the eame age as Madlala . He then sugges-
ted that Madlala become a soldier, and When Madlala refused
he so.id that he apparently did not realise that the black
people were being hampered by the whites . lIladlaJ.a said tbB t
attar lunch that do.y accused No . 5 returned to the same wbject,
saying that fifteen boys had already been eent to MocambiQU8
via Swazil.8.lld to learn to sboot, and that after their traini..cB
they woul.d return to this country to fight for tbe treedom
of the black peopls . He went all to ssy t.ha t another five
boys were going and that be wanted lI!adlaJ.a to join thie group
as its sixth member . lI!adlala repeated bis refusal and that
was the end of the matter. MadlaJ.e was cross-examined in
80ce detail on his relationship and dealings .nth accused No .
5, but did not deviate troc his evidence-in-chief . It emerg-
ed that he WIlS on friendly teros with accused No . 5 and that
the 18 tter used / ••••.• . • . •.•••••• • •• • •
( 10
•
•
•
- 4971- .rudpent.
Page 259.
t he lat ter used to advise and assist him with hie problema .
He adtnitted that 8hortly atter he started workin& at Eden
dale he told accused No . 5 that be would like to go back to
8chool to etudy for his matric, and the accueed helped bim. by
cocpl.eting and signing cert&.in application fores for tbat
purposa . He denied the 8U&g88tion that What accused No. 5
i n f act proposed was tbat he should go abroad to trai.n as a
trade union organiser . He was not detained by the police
for ~o~r than it was necessary to record hie 8tatement , but
in Me cue too they eaw !it to visit and read the statement
to him at monthly interval •• NevertheleS8 1'1'8 were satistied
that be was rflcountirlB events that actually occurred , and not
just reciting bis statement. He W8J!I perfeotly at ease in.
the tritneee box and gave every indication that he was epeak
ing the truth .
The allegation in the indictment (Annexure "P~)
ie that accused No.5 tried to recruit Madlala in August 1975 -
not two months later as the td tneee testified. There ie ad-
mittedJ.y no pnjudice to the accused and no need to &oend the
oharge (aee eeo . 176(2) of Aot 56 of 1955) . lIoreover, we
cannot accept the submission that this divergence reflects
adver sely on MadlBls' s credibility. Having got from the
witnes8 that be started working at Edend&le Hoepital in Aug
uet 1975 th8 prosecutor introduced the subjeot of recruitment
witb the following question : -
"After about ~ months that you had been working at the bospi tal, what happened?"
'lhat indicate. that the prosecutor expected Madlal.a to teeufy that hiI was / •••••••••• • •
•
• (10
• (20
•
- 4978- Judgment .
that he wall approached two mon ths atter he started wor k in
August , and thara ie no aatflcient basia for i nterr ing that
hia etatement contained eooetb1ng differ ent . Counsel for
the accused also IJUbmittad , 1dthout justification i n our
opi..aion , that Madlala' il evidence was vague and the f aot that
accused No . 5 admi:ttecUy encour8B1l'd him to pureue hie studie.
ie incoll8ietent with the notion that be tried to recruit b.i.m
tor .m.1litary traini.ng . In our view there ie nothing incon-
sietent about encouraging 8tudies in August a.nd recruiting
fo r m.ilitary training aome two monthe later . Bncouragina
and aBsieting Madlala was poeeibly deeigned to wi n his oonfi_
dence . that
Mr . Muller Clade the point.on the State case
accused No . 5 did not tell a cOll8ietent etory or adopt a
uniform apFoach When trying to recruit the var ious witnellees .
Thus , in the case of aipho and Elijah be allegecUy epoke of
training 1n Rhodesia, with the recrui te trainin& othere on
their return to South Africa, where88 lIIadla.la 'fIIB.8 given to
understand that the training took: place in lIocambique . On
(10
the other band Hadebe ' a evidence ie that he eU88eeted that the (20
two of tbeo 80 overeeae for trnining , while 1.n Hlobisa' e case
he ref'Used to lIBy where thil traini.ng would be done unless and
untU the tdtnees agreed to go . It is II\LTpriaing that there
eboUld bave been talk of military training in Rhodeeia, but
not 80 improbable as to cast doubt on the veraci t y of Sipho
and Elijah. If the accused was trying to " eell~ the idea
of m1.litary trai.ning abroad he would not neceesarUy give an
accurate / • • • .• . ...•..• .. • •• . • .. • • • •
o
o
o
- 4979 - Judgment.
page 261 .
accurate description of what i~ entailed, and we do not ~
tbat it 1a at all improbable that be would bave varied his
approach as disclosed by the evidence led by the prosecution.
However, in our view the differences which lIIr. Muller atres
aed do aerve to refute the au.sa:estion that the caee BBiUnat
accueed No.5 was fabricated by tbe witneeeea or the police .
We now turn to consider tbe evidence which tbe
State led to prove that accused No.7 contravened aection
2(1)(b) of Act 83 of 1967 . The indictment allegea, 1n effect,
that be recruited or attempted to recruit William Zondi and
Velaph1. Robert Zu.o=J. to Wldergo mill tary tralnina abroad .
It is cOllDon cause that &ccused No.7 wae a
bua driver employed by the Pletermaritzburg Corporation, and
it appears that William Zondi was a regular paeaenger on the
bus whicb be drove on a route froc the city to Imball Town-
ahip . Zoodi left school at the end of 1974 when be wae io
Std.IZ, and had been un:lble to obtain employment. He gave
evidence to the etrect that on an occasion durill8 Mayor JWle
1975. at the Imbsli bue terminus, accused No. 7 asked him how
far be bad progressed at school and, ba'rlng ascertained that
be had reaehed form III (Le.Std. .II), said thllt he would be
very pleased it he (Zondi) would join a group of boys who were
gOing overseas to be trainsd aa soldiera. Accu.aad No.7
allegedly said that the trainina woul.d take six years and that
one of the courses offered '11'88 engineering, which meant learn
ing to operate machinee witb which to demolish build.i.n&s.
Be explained that people were being nnt awsy for m1l.1tary
training / •••••••••••••••••••.•••.•.
•
• ( 10
• (20
•
- 4980- Judgment.
Pe,se 262 .
training becau.se the black people in thie COWlU'Y were not
treated properly and were not receiving sutficient pay for
tbeir work. Zondi re ruaed the invi ta tion and beard nothinB
more about tbe matter Wltil a cer-ta.in Tueeday at the begin-
nina: of November . He said that accused No . 7 ca.me to hie
house that day and asked hie to join a group of people who
He retused to do so . o •• later occaaioD, when they met in town, accused No. 1 ~orm
ed bi.m that the group bad lett 00 the Wednesday 88 planned .
In the oourse of crosa-examination Zondi agreed(10
that on the occasion of their first discussion accused No . 7
told him that Ontl or his friends ""'"ted YOW'IB a.en wi tb at
leaat Pom III education to go overeeas for training aa trade
unioQ .orge.nieers. It waa put to hicI that accused No . 7 bad
said nothing about m:il1tary training , that be bad enquired
whether be could do engineering if be went on the trade union
course, and that accused No.7 had replied that be did not
think 80 e..nd that in ~ event an engineering course "ould
l aat about six years. When questioned by the Court Zondi
aaintained that accused No. 7 bad said nothing at all about
trade uniOD organ18erB, and thereby contradicted ~hat he bad
aaid earlier. 'fhie 'ImII a contradiction on a vital. point, and
Zondi had no satisfactory explanation for it. In the couree
of further Q.U8stioning by tbe Court he admitted that accused
No.7 had aaid that i t ~aa a friend of hie who 11'88 looking for
boya, and bnd spoken about boys who had paaeed at least Porm
III at echool . He then claimed that accused No. 7 had
mentioned Porm III / •• .• •. • •.• •
(20
•
o
o
.... _ .......
Pye 263 .
mentioned Form III as the minimum educational ~ualification
for recruits for military trainina: . It eeema grosely im-
probable that accueed No.7 would have referred to any edu
cational qualifioation it be waa recruiting terroriate, aad
e qually improbable that he would have discouraged would- be
recruits by tell.i.n& them thnt the training would take eu
yeare. In a.ny ewnt, he oould not poeeib1y have tbought
tlut such trainin& would take eix year •• These and other
unsatisfactory features of Zondi ' e evidence left ~ in
doubt 08 to whetber accuaed No. 7 approach.ed him about .m:1.l1-
tary trainina: 8.9 dietiDBUiehed from trai!rl...DB as a trade
unionist . A furtber reaaon for treating bill evidence with
8u..spicion is that"" bave every reason to believe that be
learnt his atatement by heart. He said that ha was reQ.uired
to report once a week at the Loop Street polioe station and
that each time he did 110 be '/f8S given his statement to read .
Thia may well be tbe reaaon ..my he gave his evidence wi tb
cleri ty and epJ:8l"ent 8.8aurance u.ntll he made tbe slip abou.t
trade union organi8era, and it demonstrates bow the practice
ot ooachine w1.tn8Sll88 could give riae to grave injUlltice .
We cannot rely on a word this ld tneas eaid .
Robert Zuma teaUfied that be W8.II a Corpora
tion bUll driver ldtb accUlled No.7 and that acoused lto . 7 had
recrui ted him as a meClber of tbeir trade u.nion . 'rba t 'tIf88
innocent enoU&h. and it confirms that accused No . 7 was an
active trade unionist. Zuma nnt on to give a vague and
somewhat garbled account ot a conversation be had wi tb
accused No.7 / ••••••.•••••• ••••••
•
• ( ,0
• (20
•
Pap;! 264 .
accUllsd No.7 in about December 1974 about freedom tighters .
He aaid tbo.t accuaed No . 7 pointed ou.t that the people in
ldoc&CIbi~ue and .lnSola bad toU&ht for BJld achieV9d freedom for
thecselves, and said that tbe blacks in South Atrica sbould
aleo form an organisation to tight tor their treedom. Accor
dina: t o ZU5 eccuaed No.7 said tbat be sbould join tbe free
dom tighters, but he wu not clear as to whether accused No . 7
meant the freedom fighters in Angola or MocambiQ.ue or South
Atrica . His evidence wae not challenged, but it talla ahort
ot este.bUeb1ng that accUlied No . 7 incited, instigated, co~ (10
nded, advleed or eD#IJur&eed him to undergo military training
abroad aa aJ.leged in count 2 .
According to the indictment the peraons whom
acoused No . e atteQPted to recruit for military trainine were
Stantord Ngidi and Churohill Nte ta o Accused No. e lived at
Mpumalenga and worked tor Rainbow ChiokelUJ at Hammarsdale .
Ngidi teati!led that be had his tirst conversation with accu
sed No.8 during the first week at Noveaber 1975. Ngidi wsa
workin& tor the Kwa ZUlu Department of Worka &8 e plumber, and
on the OCC&8ion of their firat converae.tion acc~ed No . 8
oftered to !lad. a better pe.id job for bi.m with Rainbow Chicle:-.... Ngidi said that accuaed No . e came to hia home again
a couple at .,..elea later, and that the topic at convereation
on this occasion was politics . In the courae of this conver-
sation accuaed No . e allegedly eugsested that Ngidi could
beoome a .oldier BIld join the " Bukalombuzo" (which the wi tna8S
hilllSelf interpreted as "terroriats or 80C1ething 11ke that") .
Accuaed No . e / •.. ... . . . •. ...
(20
o
Page 265.
ACcused No . 8 told him that if be becaoe a aoldier or tarror
iat be and hia family would be well otf. and that the" waa
nothing for bim to be frightened of. But be did not eST
wbere Ngidi "auld beoome a soldier or what be would do after
bectxDing one. Ngiti aaid that be rejected the suggestion
and accused No . 8 left. He did not see accused No . 8 aga1.O. .
The vereion of accused No . 8. as put to the
~toe88 in cr08s-ex8mination, was to the effect that accused
No . a tried to get him to join tbe Mpuma.langa OOGllllWl.1.ty
Guard , and that be bad misconstrued this as s auggestion that (10
he abouJ.d become a aold.ier. The occasion upon whicb thie
occurred was not sp8ci!1ed , but it was put to Ngi4.1 that he
and accused No . 8 frequently met at beer-drinkill6 parties.
It is c(X:lmon cause that accused No . 8 spoke to Ngidi about the
possibility of a job with Rsinbow Chickens , but it "88 put
to the witnesa that they did not meet again, because accu-
sed No.8 waa arrested i_diately after they bad that oon.
vera.tion. Ngidi was a sacewhat obtuse wi tnese. but we do
not agree wi th Mr. lIIul..ler that he was deliberately evaaive or
boatil e to the accused . He did not oontradict himaalf or de. (20
viate from the .tory whicb be told. was perfectly at ease in
tbe wi tn.ass box and appeared to be bonest. He was not arrest-
ed but simply taken to the Loop Strest police atatton for the
purpose of recordina: his statement, &nd be rejected a sugges
tion that the polioe had indiCflted the eort at evidenoe tbey
required from him. On hie own admission he is a dedicated
tippler who. When he drinks, is oblivious of s.oythina which
migbt distract / ••••••••••.•••••
•
•
•
•
-4984- Judg::le!lt.
Page 266 .
might distract him from that exercise. Therefore. it it
were common cause that accused No . 8 made the approach at a
beer-drink the sugg&ation that Mgi41 was confused about its
purpoee "ould haV9 been quite plausible . However, Ngi41
caa.de it clear tba t hia drinJcina: apreea were con.tined to
weekends. and that the .usaestion that he becooe a soldier
was made at hie house on a week day . He ti~y rejected
the notion that be wae con!'u.aed aa to what accused N0 4 8
aald to him , Iltld we have difticul. ty in eeein41: how be could
have m.iaconstrued an approacb to join the local cOll\llJW1i ty
guard as an invitation to become a soldier and terrorist .
At firet blush it eeems iaprobabl& that accused No . 8 would
not bnve explained "hy NgitU. ahould become a aoldler or
where be "ould undargo hia tro.in1na. but it 1a quite possible
that be was only 9lltting out fee.lera at that staae , or that
e forceful character like Mgidi would have cut him ahort
before be could elaborate .
Counsel for tbs accused submitted that Ngi41 ' &
evidence did not support the charge that accuaed N0 4 8 inoo
cited , inat1gated or encourllBed b10 to undergo training of a
mllitary nature outside the borders ot tbe Republic . Counsel
reterred in this connection to the strange word "bukelombuzon
which the eccuaed 1& o.lleged to have used, and to the follo~
ing answer which be gaV9 to 8 question under crosa-examina
tion :-
nWell he (i.e . acoused No.8) aald that if he
got me to join aa a eoldier. then I could
be a / •••.•.••..•.•••
, 10
,ro
D
o
o
o
- 4985- Judgment.
Page 2§1 ,
be a terroriet and then I could etay nicely
wi tb my fa.m:ily and there was notbing tha t
I should then be fri8htened of."
We agree that the notion of a terrorillt lltaying at home
"nicely" with hill racily 1s II strange OJl8, bUt It is by no
means cleer that Ngidi meant to convey that thie 'fOUJ.d be the
e888 while h8 was 8ll88ged 1n terrorietic activities. 'be
answer Quoted abOVii ha!I to be read in the context of hie other
evidence on the subject , including the following :-
"A.Ile! did be say wh:lt you were goina to do ntter you had beCOCle a terrorist and a sol<1ier? - Be aaid I "ould be very well off I and my fa.crl.ly I and there wns notbing I hnd to be frightened of oil
We do not find it in the slightest degree 1.J!Iprobnbla that
accused No . 8 .PBinted this roay picture to induce Ngidi to
accept hie propoaa.l. . To become a 80ldier neoe.Buill" in-
valves trBi.n1ng of a mil.ltery nature, and auch trai..n1.ng
coul.d olearly be of UfJ8 to a person intending to endan-
ger the maintenanoe of law and order in the Republic. We
are therefore of the opinion that Ngidi'e evidence ev.ff1cee
to aupport the charge.
Churchill Nteta worked for Rainbow Chickens
a9 a driver. while accused No 8 M1S IIQployed there ell a clerk
in charge of stores . Accordi.ng to Hteta, 'fthen they were
htlrtng tea at Rninbow one SUncby in October the converaation
go t onto the topic of black aolltiers. Mter tea accused
No.8 went out / •••••••••• • • ,.
•
• ( 10
• (20
•
- 4986- Judgcent.
Pase 268.
No . 8 went out with Rteta to put petrol in the van Which the
latter waa driv1.ng . Nteta testified ttut on thie occasion
accused No . 8 expreaaed approval. of wbat he bad eaid during
tea about black soldiers , and offered to arrange transport
for him to go and learn to be a soldier. Nteta agreed witb
the auggeetion and accused No.8 did not elaborate on it at
that stage , eave to eay that he ehould keep it secret . S""e days later , acoording to Nteta , he was arreeted on a dagsa
charge . He 1'SB releaaed on R50 ~il which "as paid by hie
eister, and he saw accused No . 8 again about two weeka later.
On this occasion accueed No . 8 informed him that be had al..w
ready J1I1t bie nnD8 down DB one of a &roup Which "as due to
leo.va the next Thursday to undergo training as soldiers in
COrmCIWlist Ohina or RUBeia. He indicated that the trai..n..1.ng
"ould last two years , and explained tbnt the object waa for
him to rsturn to South Africa to fight sgainat the GOV8r~
mente Nteta acid tMt he wes atUl. agreeable to go, but
"hen be lenrnt that the transport wna leaving that Thursday
be told acoused about the d&&8a charge end aaid that he could
not go until that matter was concluded . Accused No . 8 tried
to persuade biJ:I to chnnge hi. mind , by telling him that be
woul.d never have to atnnd trial j! be went, and that the
R50 would be retundad to hie eiater , but he W8S not prepared
to do 80 . A few days later be heard that accused No . 8 bad
been arrested .
Nteta 'f8,8 not wnrned as tL'l accomPlice , although
he clearly ~ one . He triad to coevey that when be agreed
to undergo / •••••.• •••••• .•••
(10
(20
D
•
D
o
hpj. 269 .
to undergo military tro.ining be did not re31188 tbnt he W88
actitl8 unlawtull.y. but his evidence in that cONlectioD W88
contradictory and unsatisfactory. Another unsatisfaotory
feature was his etateoent that in the course of their oonver
s a tion accused No.8 told h.i..m that otber ,People bnd left
(tor military training) in 1960 and tbllt if he (accused No . 8)
bad not been n child at tb:lt tiJne he ..ouJ.d have gone with
thelll.. As accused No. 8 'ftI8S 36 years old in 1960 it 18
hardl.y conceivable tbnt be made such a statement. Likewise,
Nteta' 8 elsie th:1t be received a wholly suspended sentence
of 5i years ' imprisonment on 8 first conviction for unlawfUl
possession or use ot dagga seems incredible . In 011 other
mate rial respects , h01l'8ver, he appeared to be telling the
truth. It was put to bi.o that what "88 discussed WQ8 not
soldiery but 8 proposal that be undergo a course of training
as a trade unionist. He denied the suggestion, pointing out
~t he knew ~othin& about trade unions and ~ not ~ualitied
to undertake lIuch trtdning inasmuch 88 he bad not progrused
beyond Std . VI at echool. He was only detained tor a couple
of dnya tor the purpose ot takiIlB his state.c.ent , but in his
cese too the pollce saw fit to relllind him of the contents ot
the statement a.t regular montbl.y intervals . We are thus
t ace d wi th the problem of evaluating the evidence ot an accom
plice who 'ff&8 ooached by the police and probably lied on at
leaat one material point . In the absence 01 other lactors
to ensure that it is eate to do 80 , ~ SimPly cannot rsly
on hie evidence .
That concludes / ••• ••• • • • • •
•
• ( 10
• (20
•
That concludes our re8~ ot the evidence
tendered by the prosecutiOll on counts 1 and 2 .
to examine the detence evidence on theee counts .
We no" turn
It ie cle3r from his evidence that accused
No . 1 is an e.rdent trade unionist end supporter ot SACTU , Q8
well as Q bitter opponent ot the preeent Governcent and its
policiell. During 1944 he bec3.CIe the or~ser ot certain
trade unions in the Pietarmaritzburg area , and &so a cember
ot the A.N.C. Betore thnt he was a teacher . In 1948 he
moved to Durban where he orgo..n.ised the Textile Workerlt Union
tor a year and aome monthe , attar whicb he returned to Pieter_
mari tzburg to become the orgeniaer of the Municipal Workers'
Union and the Rubber Workers ' Union at Howick . About tour
years later he received a "banning order" whicb ettectively
tarmiDllted his trade union activitiss tor the next two years .
Upon its expiry the order was renewed tor a turther period of
two years. l'rom the beginn1.na: ot 1954 accused No. 1 "68 etlltllo
ployed at the EdendaJ.e Provi.nciaJ. Hospital , but he -..as dis
miseed trom this employment at the beginning ot 1958 , on the
ground that be had been diatributine; SAC'l'U p:!.mphlets d~
dine; a 1:linimw:1 woge of £1 n day tor workere . He resuced hie
trade union activities atter tbe expiry ot the second banning
or der , and trOlll 1959 to 1962 be was the secretllry ot the
Pietermaritzburg committee ot SAOTU . Then be received ano-
thar bannina: order . Moet ot tbe procinent SACTU ottice
bellI"ere were l1kewise banned, with the reeult that in the
course ot time / ••••••••••••••••
( 10
(20
•
•
o
- 4989- Judgcent.
page ?7',
course or time SACTU practically cauee! to exist . Ie
1912 BeQue8d No . 1 ~ served with a five year "banning
order" in terms of which , .!n!!!. &g. he wo.a confined to his
bome [rOC! 6 p.m. to 6 a . m. on weekdays and was prohibited
from leaving hie hoCIe at all during weekends or on publio
holidays . He Baid tha t he becaoe a aember of the Natal.
ProvlnolC1l. Executive ot the A.Ii.C . in 1959, and remained n
member ot the A..N . C. until it 'fIOB daolared an Wllawt'ul
orpn.iBstion in 1960. Re.till. beUev811 in what the A.B.C.
stood tor before it was banned , and aleo believes in 000-
muni9m .
Notw:!. thstD.nd1.ng the raatrictions imposed
on him accused No . 1 remainad dedicated to trade wdonieo
gen.ero.l.ly and SACTD in particular . He knew Mabbida , who
was prtI8ident of S~tJ and 0180 Natal. chairman of the J. . N. C.
betore he left the country in 1960. Por lIoce time &tter
lIabhida ' . departure accused No.1 corresponded with b1.m about
workers' =attare . Accused No. r o.l.80 kn.w .ubert Dhlomo.
Before Dbloco lett South Africa. towarda the end of 1912 they
had 41ecussions about the revivel. of SACTD, c.nd Wben Dbloco
let t accused No.1 asked bim to try to contact 1I!Iabbida and
cer'tain other SACTD ceQbere abroad about the matter . At
about the beginning ot April 1915 accused No . 1 received a
oe.sage froo his cOUJIin , accund No . 2, to the effect tbnt
Dbl.omo we.n.ted accused No . 1 to get in touch with him . At
this eto&e accused No . 1 bad el.ready reoeived Gnmedze ' a
letter (about the handicraft transaction) from Catherine
Mlth:1.ze , / ••••••• • •••••••••••••••••
•
• (10
• (20
•
- .990- ~-~J"uc.£:Ient .
PaS! 272.
!ikhize, and bad asked ber to deliver a letter for him fthen
next abe weat to S'fIIlzllandt He told accused No . 2 about
thie, because accused No . 2 waa rel~ted to Dhlomo by morri~
and IIl1gbt want IIIrs. lIDcbize to deliver a letter to Dblomo.
Accused No . 2 eaid that he woul.d apeaJc to his wife about
lItt'itln,g; a letter , and left on the underetMding that he wOUld
oall on accused No . 1 again in due course .
sed No . 1 telephoned DhlOJ:lo in Swn:tiland .
Th.ereafter accu.
Dblomo said thnt
be h:1d a ID8BSase for aocused No . 1 from Mabbida e.nd wanted to
know how be coul.d get the message to him . Accused No.1 r efer- {10
:red Dhlomo t o Gamadze as a possible courier , saying that
Duma would bs able to direot him to Gacadze . In the reaul t
Sylvia Gaoedzs delivered the I!I8ss!1g9 early in May 1975.
AocordinB to acoused No . 1 the roll of cotton
'11'001 which Sylvia brought oonta1.ned two pieces of paper J
(i) a small piece on lI'hicb Dblo.mo had written , atnt:in8 inter
.!!!.,!!; that be ...a.e aending a letter from lIIIabhida a.a they bad
al"T8.DB8d teles:hon1caJ.ly , and that Nxasana might be of aBei9"
t3.llCe in reviv1..ng 5ACTU; e.nd (11) a long narrow piece on
which Mabbida ' . letter was written . lIabhida' a letter we.s
dated A,PrU 1975 at London, and eo far I1lI accused No.1
could remember its contents were as foliOml: Idabhida stated
that he had 'often tryi.ng to contact accused No.1 for a ~ong
time but bad received no :relIpoDBei that Dhlomo bad told hie
about the efforts to revive SAC'l'O , and thllt as Dblomo was in
S'MIzUe.ad be (Dblomo) would get in touch wi th accused No . 1
that be would be glad if eftorta were made to revive SAC'l'U
because there / • ••• •••• ••••
(20
o
o
o
o
-4991- Judgment .
Pag! on3 .
becnuse there \'I8S It great need for it, that when IIIr. Dladl.n
I'IS8 abroad they bad been in contnct wi th him about the revi_
val of SAC'ru , but had not yet done ~thing about it; and
that Stephen Dhl:lJl11ni should be approaohed about the revival.
of SACTU . Ho.ving received these lettera aecused No . 1 aent
for Mabbida'e dnU&hter, ThuthukUe and told her to write a
letter to her to.ther about the plight of his family . Accu
sed No . 1 hi.mself wrote a reply to Mahhida on toilet JlBper,
atati.ng .!.!l!!.!: elia: thIlt he W3.8 very glad about the pro-
posad reviv:ll of SACTU; that people were needed to do the
work but they should be paid properly nnd there wna no monay
wi th "hieb to do so; that Natal should be divided into varioue
are .. with offloes and pereonnel for each area; that for a
start they would reQ.uire twelve organi8ers to be trained
abroad, end poaa1hly an 6l!lount of R14 000; thnt the persona
to be tr,uned would have to have a knowded&B of Bngliah and
arithmetio and a Std . 5 or 6 level of education , BlthoU&h
(10
'formal. education "Ml8 not really Mcenary in view of the new
teCbc.1Q.UBS for teaching illi terates; and that in view of the
harfaBsment Which it had Butfered SACTU would have to operate (a::l
1e8s conspiouously than before , organie11lB eoall groupe of
worker II rather than holding I:I8.8S meetinge . The letter alBO
referred to the train1.ng MthodB of the I . I.E . and the
O.T.P. (Orban Training Project) and expressed the view tbnt
they differed from those of SACTU . fbie , according to
accused No . 1 , was the letter which Sy'lvia ooncealed in the
roll of / ••••••••••.••••••••••
•
•
•
•
- 4992- Judpent.
roll of cottonwool and took back to Dhloco for him. In
anawer to question!! by the Court he exploined that he wrote
it on toilet poper becQuse he did not have any other sott
paper suitabls for r ollins in oottonwool . When uked .m,y
the letter should be ooncealed in this fashion be 8aid t hat
be had told Sylvia to wrap it in the ootton'fl'ool just beoause
his letters frOeD Dhlomo and ldabhido had been conveyed in that
manner . He wa.a then aaked epeoitically Whe ther it 'lfB8 con.
cealed in the roll of cotton'fl'ool beoauss of a need for sec_
recy, and etul he hedged betore t1na1ly indicating thot the (10
main reason was to conceal. it froo the police . We find it
dit!icult to believe that 9uch elaborate precautions would
have been taken it these letters WIIre the innocuou.s onea
described by accused No.1. Accepting that a revival of
SAOTU
would
would have to be undertllken in oomparative secrecy, it
newrtheleall b!lve been a lawtul. enterprise, and we
doubt whether such cloak and dagaer methods would have been
conaidered neces8ary to conceal lettere such as theee from
the n otioe ot ths police .
Accused No . 1 8aid thnt acouaed No . 2 ealled
on him again in latay, shortly after Sylvia ' a first vh1t . On
thia occasion accused No . 2 brought a letter in a sealed
envelope with Dhlolllo ' s name on it . As be W08 not eure when
Mrs. lOI:h1Z8 would be go1.ng to Swaziland accus8d No . 1 got
accused No . 2 to sto.r;:lp the enV910pe and address it to Box
202 Manzini th1e being Bafana Ducats address _ in order
that the let"ter could be posted in the ordinary wo.,y it it
tro..napired / ••••••• •• ••••••
(20
D
o
-4993- Judpent.
la.se 275.
tranapired that Mrs. KIr..h1ze could not deliver it. In the
event Mrs . Mkhiza did go to M::uu1ni on 25th May 1975 and took
this letter with her. Accused No. 1 contirced that be also
gave ber II Dote addreeeed to Batana Duos. and 1.n8tructed her
to go to Duma at the Mo.nzini Refugee C&cIp. He .aid thO.t
bie Dote to DucB a1.J:lply eerved to introduce Mra. Mlthize, and
that the letter which abe brouabt back tor hie hoc Manzini
was II abort note froc Dhlomo to the effect th&t they would
paea 00 his "caaaage" to MBbb1da .
Witb regard to Sylvia Gaoedze'e s8cond miasiOll (10
in June 1975, &Ccused No.1 testified that the articl.s coo..
cauea under the talll8 bottoo of ~bi t 1 were R2000 in Rl0
oot8e, II long envel.ope containing II let-tar !roc Mabh14a ,
Msbhid!l'e written addrue to n .. ant SACTU coating in Jobana
n8aburg, a packet of wbite envelopes and four to _Ix booklets
on trade unions and SACTU.
of the letter MUI 68 follows
Hie reoollection of the contents
Mabhida SBJ'eed with bie vie,",
on dividing Natal. int(! regions and che.n8ing the orgo.niaation
ot SACTUj stated wb.o.t the Cloney lOS to be used fori llaid
that prllparations bad belln Cladll for the recepticn of Dn¥
trainees who werll available, but did not specify any 9Brti
cUl.ar place or inatl tution at which they would be tr:lined,
and llaid that step8 IIhcuJ.d be taken to ensure that they were
nct silenced when they re'tUrnedi CiIEInticnod that the Zs.abian
Tenchers' Unicn would be celebrating 1ta centenary. and asked
accused No.1 to contact South Afrlcan teachers .,mo aight
wieh to attend the celebratioruJ. According to the letter
the R2000 / •••••••••••.••••••••••
(20
•
•
•
•
- 4994- Judgment.
Pase n6.
the B2000 wna an ini tiel. 8QOWlt to be uaed for orgo.niBil1! .
tor training and tor wages ot pereonnel. Under croll 11-
exs.cination accused No . 1 said that the expenses of recruit
ins and sending trainees abroad were paid out of thiB Cloney.
He Baid that thiB letter froc Mo.bhida bore a Luaaka addrells
and a data in June, 1975. He ocitted to give his version
of the ~lIsage8 Which he asked Sylvia to convey ~ly to
Dblooo, but that i8 Wlimportant . He stated that the letter
which he Bent to Swaziland with Sylvia on this occo.llion
Clerely acknowledB:ed receipt of the Doney Illld Mabhido'e let.
ter .
Accused No . 1 contirced that Mrs. Mkh!ze
took a letter to SwnzUa.nd for him in July 1975. He ea.1d
that the letter was for DblOQo but wna not questioned about
its contente. He denied payine any money to perlluade her
to undertake the trip and only adoitted to giving her R25 on
her return, to cocpensate her for the expense of tnk:ing a
taxi froa Idnnzlni to Piet Betief . We have already indicated
that we believe Mrs . Mkhize ' B version of thie episode, but
nothi.n& turns on it because we can ake no tindi.ng about the
nature or contenta of the letter whicb she conveyed for accu-
eed No.1 on this occ6sion .
August he asked Mrs. Mkhize
He alllO contlrced that during hie
to tell .. where to find Du.oa in
Manz1.ai.. He had beard that bualoa48 ot people 'II'Ould be
goill6 to attend the MbJ.anga festival in Swaziland and be
wanted to send a ~e.8age to Dblomo with one ot them.
about this t1ce he learnt that SiphO Kubheka intended going
to Mbabane / • • ••••••••••• •
(10
(20
•
t
•
-4995- Judgment .
Poge 271 .
to Mbabane 'Iri. th a ~r1end, and during September he made arre.n..
geCll!nts with Iubbeka to deliver a CleUIlge for h.im to Batr.na
Duma in lde.nzini . Accordlns to accused No. 1 Kubheka told
h1.c that they were merely going to Mbabane tor pleaeW'e, and
be gave I.ubheka R50 to cover the addi UoneJ. expense ot trav
elling froQ Mbabane to Mnnzlni. On the day that Kubhcka
and Pbungula left tor SMUlland accueed No . 1 met them in
town by arrangement. He purcbaaed a roll of toilet paper
from a sbop in the vicinity and wrote hie ot!ssago on a
piece which be tON! froe the roll . This be rolled up and
handed to Kubheka, explai.nina where he would find Du.oa in
ldanzini, and instructing h1t:1 to tell Duoa that he had 0008
from Barry Gwala in Pieten:ull'ltzbW'g. He denied giving
Iubheka tbe passwords Mwnyithela" and "nayibncbezelo". His
explanation tor not hnving wri tten the message earlier wns
that Kubbelta had let him dOlln in the past and be was therefore
uncertain "hether they would in fact be leaving for Swaziland
as arrlln88 d • When aeked wby he chose to wri te the J:88s868 on
toilet .Peper be replied that thera 'fI85 no important reaeon,
be just thought thRt be might as well buy toilet paper and
use the rest of the roll to write on at hoce. He claimed
that all that w:l8 written on the piece he handed to Kubheka
was that the date tor the cOlll!:enOr:ltion of Chlef Luthull was
drawing oloser, that they (the locnl people) had no money
and that he would be glad it they (the people tor 'l'fhoo tbe
aeasa&s W88 intended) could help theCl with coney tor the pre_
parntions. As there 18 no other direct evidence on the
'point we / •••••••••••••••••••
•
• (10
• (20
•
- 4996- Judgment.
Pnse 278.
point we can malte no positive finding about the contents of
this meseage, but we cannot accept that accuaed No . 1 woul.d
have gone to such trouble and spent so much money on b:lving
it delivered it it were as iMOCuOua 08 be would have tbe
Court beHeve .
With a view to maintaining eome .ort of
chronologiCal. seQ.W!nce we de31 at this etage with the evidence
of accused No.1 on the events leadins up to the meetins at
his bome on loth A1J8Uet 1975. He sa1d that accused No. 2
viaited him. in Jul,. to discuss the reviV3l of $ACTO nnd a
disagreelll8nt in that connection between himself and Nxasa.na.
He told accused No.2 of hi_ correspondence with Mabhi4a
concerning the revive.l of SACTU, and invited accused No . 2
to come to hi. bouse on 10th AUBUSt wi th NxasanD. to discus_
their disagrsecent. He said that he would invite other
persons to be present on that day for a general discussion
on the reviWl of SACTU. He also told accused No.2 that
be bOd l'Irl tten and banded to Zum.a a letter in connection
with the proposed COClClemoration service for Chief Luthuli,
and asked him to aee that it got to Archie Gumsde . There_
after be invited accused No •• 5 and 7 to a meeti"B at hie
bome at 10 a .m. on Sunday , 10th Auguat to 41ecuoo SAC1U and
trade union mattera . Accueed No. 6 called at hie b~e during
the first weekend in J:uBuat in the coW'ae ot hawk1.n& "es
dumbis", and he took the opportunity to ask accused No.6
to tell on. Johanne. tnongwane of Hamcarsdal.e that be would
be Mlcome / ••••••••••••••••••••
(10
(20
•
o
- 4997- Judgment.
Pas. Z79
be Mlcome to attend the ceeUna: on the following Suaday .
Hloagwo.ne bad 'been a SACTD mtIJ1 , and a.ccuaed No . 1 told accu
eed No.6 that be! wanted Hlongwane to attend the meetina:
beceu.ae it '1'\'8.8 concerned with the revival. ot SACTO . He alao
in1'ormed aeeuaed Ho . 6 that they were tryi.ng to arre..nae a
cocoeC1oration service for Cbief Luthuli.
Accused No . 1 .aid that the first people to
arrive at hie house on 10th August, at about 9 a.m. , were
accWlad Noa . 6 and 8. Accused No.6 had eiclply called to
a8Y that he had been UIlIlble to get hold of Johannea Hlongwnt18, (10
but accused No . 1 naked him and accused No . 8 to atay for the
meeting becaU8e they were maabera of InkathtL and it occurred
to him that aa aucb they would have elXlething useful. to coo
tribute to the diecu8sion on the propoeed commemoration
aervice . Thus it 0808 nbout that, almost by chance, accused
Nos. 6 am!. B attended this crucial. tJeetill&. The next per-
80na to arrive, ahortly 'before 10 a .m., _re Nxaaana and
Zuca. Accuaed No. 1 was not expecting Z1.1C8, and aaked why
accused No.2 had not coca. Tbereafter thoee present in-
dulged in general converaation while waiting tor accused
Noe. 5 and 7 to arrive. In the course of this conversation
accused No.1 r.l@ntioned receivins the OIIIeeaae from DhlOGlo
Via accused No. 2 and telephoning Dhlomo in SMlzilnnd and • thereby invoked some criticiam froo accused No . 6 . lccused
No . 1 eaid that there was diSCUSSion of an article which be
bad read in the Sunday Times concerni.n& diswU. ty wi thin the
A.N. C. overseas, and he denied N:za.eana'. evidence that this
topic waa / ••• • •• •••••••••••••••
(20
•
•
•
•
-4998- Judgment.
PMe 280 .
topic waa mentioned in one of the letters whicb wae read otter
the meeting ccceenced. He aleo denied that nD¥ of the letterB
referred to an Mount of R300 to be collected trlXl Lou.is. He
eaid that 1 t was Zuma who 8tated in the course of generlll.
conversation preceding the oeeting that he bad borrowed R300
troc Skweyiya tor the purpose of buying a motor car . .. to
that, the notion that Z\U113. had borrowed R300 from Skweyiya
before 10th August 1975 1s ditticult to reconcile with the
adcitted fact that Zuca collected a cheque for that amount
[roo SlclI'eyiya on 28th November 1975.
As accused Nos . 5 and 7 failed to arrive at
tba appointed time accused No . 1 decided to start the meet.
ing 'lll'itbout theel . He ban.ded Nzasana a latter and a.slced
bi.c to reed it oJ.oud which be did . However, be got accused
No . 6 to dO the reet of the reading because N:za.sana was
sligbt17 under the influence of liquor and not readin&
properly . Accused !fO . 7 joined the meetin& at about the
stage when accused No. 6 took over the reading from Nzaaana .
Accordin& to accused No . 1 the letters which N:zs.eans and
accused No.6 read to the meeting were the first lettera he
r eceived from Dbloco o.nd JIIabhida (i . e . tbose which Sylvia
Gamedze brought in the roll of cottonwool) , a type......ntten
copy ot the reply Which he had written to Jlabhida on toilet
paper , and Mabhida's lengthy reply to the laatoentioned
letter (i.e . the one whioh Sylvia delivered to him in June) .
Accused No . 6 aleo read out JIIabhida' s address to the eecrst
SAC1'U meeting in Johannesburg and the letter that accused
No .1 bad I . .............. '.0 •• •.••
(10
(2C
•
•
•
o
-4999- Judpent .
poge 261.
No . 1 had drafted in connection with the LuthulJ. comcemorw
ation unite. Accused No.1 denied that any of the letters
made mention of the recruitcent of nurse. and teachers to
aee1et the Government of Jloeamhique , 'he recrui teent of
youth for training in Mocnmbique, any r oute used by Ouborne
11 thunywa , an,)' code with the word "wayibe.mbezela", or any
instruction to investigate and report on any persona from
the Bmpa.nsen! nrea . He aleo denied that Bxhibit "L" wa.a
amongst the dOC\lJllltnta at the .oeeting. or that any A. N. C.
oorreepondence WBS read or discussed. He could not remem-
ber when accused No . 5 joined the meeting , but tho~t that
it waa toward8 the .end of the reading of the letters . After
the letter. and Mabbida. ' 11 address had been read accused No . 1
addressed the meeting, auccarlelng the contente of the.e
documenta, IItresain& the need tor SACTO to be ravind and
reorganiaRd , and atat1.ng ~ ~ that they should look
for 8Uitable ,Perllona who would be sent abroad for training initially
as trade unioniate . He SUBgeeted thllt ... tbey ehould try to
recruit parsocs with _008 knoWledgs of trade unions , if
po_sibb, and that the recruits should understand Engliah
and have SOCllfJ Icnowledge of ari thmetio. It ,,8.8 made clear
to ewrybo4y preaent that oDl.y t'Welw recruits 11\'9" required
at that staB.: ons to be recruited in Newcastle, one in Lad.Y
Smitb , one in Estcourt, two in Pietermaritzburg, two in
H8l!I!I&r&dale, one for EmpEUJaen! and two eacb for Durbo.n and
Pinetown. It was equru.ly clear that they were to be re ..
crui ted tor trade Wlion training, not mil.i tar,. training .
According I .. . . .. ........ . ....... .
(1 0
(20
•
•
•
•
- 5000- Judgment.
Pase 282.
According to accused No . 1 nobody present WD.lI actually asked
to go and tind recrui t& but all were in tavour of recrui toent .
In biB evidence-i~hief ba said " we ell. 'W8re going to look
but it WS8 not decided who was going to look ." Onder CroSB-
examimtion , in e.nawer to thB queetion "Did tbey al.l agree
that there abould be recruitment?" be said " Yes , nobody
disagreed wi th it . "
A:tter addreasing tbe meeting as afor esaid aocu.
sed No . 1 invited the othere t o eXpnlB8 their views. Nxssana
was opposed to tbe revival of SACTU beoouse be fenred that
police reaction to its revival. would lead to the destruction
ot the trade unions and the undOing ot 'the good work being
done by the I.I.E . nnd TUACC in the Durban area . In deter-
ence to Nxaaana's views accused No . 1 stated that with res_
pact to Durban and Pinetown they sboul.d mark tiCle tor tbe
preaent , pending a meetina: wi th the Durban representatives .
Thus the number ot persons to be recruited for training
abroad at that stage was reduced troo twelve to eight . Thera
"as discussion on various other catters , including the Zw:.
bien !reachers ' oentenary celebrations , the Luthul.i eocmem
oration service , end a suasestion that SACTtJ should a:tfll_
1& te wi tb lllka the • Accused No . 1 agreed to approecb. teach-
erB in cOMQction with the centennry celebrations, :1Dd the
meeting decided on the dn.te of the cOlllCleaoration service
(16th Deeember 1975) and the persona to be approached to
serve on the eommittee to be.ndl.e the arrangements tor it .
As requested in one of Mabh1da ' 8 letters , Nxaeana agreed to
write n I .... .............. ... .. .
( 10
(20
•
•
•
o
- .. " .... -
PB«! 283 .
wri te a report on various trade union organiaations La Durban.
He Wldertook to deliver the report to aCC\.LSed No .1 by the
end of the month. Accused No . 1 denied Nxaaann'a evidence
t o the effect that he called for and received report a on the
r ecruitc:Jent o! - parcele", and denied that L'1,Ythioa: wa.s enid
about recruiting .(I8rsone to undergo mi.lltary training .
.According to accused No.1 the question of
accused No . 6 and Nx.a.aana under t aki.n& a trip to EmJl6ll6eni
aroee 1n the !ollowioa: cnnner .. In the courea of die cussing
the desirability of having a SACTU organ1ser in the Kcpangeni {10
area Zuma euagested that they g1:It in touch with Riot lIkW8l\a.Zi ,
a man wbo bad been active in SACTU but bad since been banned
and WluI living at 8goye . Thie prompted Nxaaans to eny that
he hIld lived at Ei::Jpo.ngeni in the past and knew people there
who might be of 88aieto.nce. In this conneotion he mention-
ad t he names of ee verlll. people , includillB 1i16£Ubane , Cele and
NkoaL Accused No. 1 thereupon suggeatad that Zuca and
Nxn.sana go to Empo.ngeni to see Riot Md the persons whom
Rxaaana bad menU onad, but 1'J&Tnad them to exerclae caution
becauaa the Special Branch bad a eharp eye for SAC'l'tJ organ!_ (20
aere. Zum. indicated that he might not be able to go
because he waJJ working ehifte , and lfxa.sana said that bis car
"as in disrepair . Accuaed No . 1 therefore eaked accused
No . 6 to take them to Zcpe.n,seni in hie car .. Accused No . 6
agreed to do so but oomplained that the tyres of his car were
SlII.ooth, whereupon accused No. 1 gave him !i60 with which to
PUt his tyres in order . In due course accused No . 6
reported to / •••• ••• • ••• • ••• • • • • • •
•
•
•
•
--" .......... -------. ------~.
Page 284 .
r eported to accused No . 1 on the tr'ips to Ecprulgeni.
Accussd No. 1 .Bid that he informed t hose
present on 10th Ausuat that what they were attend.i.ng was an
exploratory aesting and thzlt another meeting between re pre
eentatives of the factories ond or ganisations concerned
would be cnllsd at a la.ter date . I f the Dee ting 'l\l8S u:ere_
l y explor atory it is eurprlsinB that the &lleged decisions
regara.ing the revival. ot SAC'l'U were taken at it , but accu
sed No . , WIllI not asked tor at) explanation in this regard.
When the meeting ended al.l who had attended had e. meal
befor e l eaving the house . Accused No . 1 denied that aocu.
eed NOB . 3 and 4 attended the meeting
th!I. t day . He did not produoe any of
or oame to his house or docume nts
the lettere ~which
were read at the meeting because , he said , the police re.
moved all such documsnt s from his house When they detainad
him on 30th November 1975. The documents in question were
therefore no longer available to hi.m , the 1.III.plic!ltion bet.ne
tb;:l.t the polic. still had them or had disposed ot them .
According to accused "0. 1 the articles
which Sylv1a brought t o him in September in the sui t ca ••
(Exhibit 2) were only R600 (in R10 notes) and a l etter f r om
Jdahhida stating that he was sending this money and was still
waiting for the trade union tmineeB . The l etter that accu.
.8d No . 1 eent back with Sylvia thtlnked Dhlomo tor tbe money
and indicated that ths troineu "ould be sent wben they wer e
r eady . He admitted euggesting to Sylvia that they approach
Dhlomo tor financial assistance but denied thOot he bad spoken
about a / •• •• •• • ••• • .• • .• ••
( 10
(20
o
•
•
o
- 5003- Judpent.
page 285 .
about a payment of B600 in this conneotion. He gave his
veraion of the circumstances under ~hich he took the jersey
f or dry~lea.ning. but omitted to deal I¥1th Sylvia ' s allege..
tion thnt he aaked ber to tell Dhlomo that be bIld sent a
messsee to Lamontville.
eide-i88UBS are material .
We do not oonaider tha t thea.
Accussd No . 1 tsstified that during 5eptem-
ber be met accused No.3, told him about the correspondence
with liIabhld.a concerning the reviV8l of SACTU and of tbe need
to recruit young people to be trained abroad as organ1aere .
and naked b1a to assist in obtaining recruite . He mad.
this approach to aecused No.3 because tba latter bad in the
past been a prOCD1neDt SACTO' can. Aceusec1 No . 3 INgglisted
Mandla Sikoea.nn as a suitable rliCrui t Md arr8J'l6ed for aecu-
eed No.1 to meet him later thIlt week . Aecuaed. No .1 met
Jlandl.a as erronged and not only recruited him for tra101ng
but a180 got him to recruit othere . In explaining the
position to Mandle be allegedly stilted , ~ Rl.ia, that
seven recruits were required at that stage. that they sbould
( 10
understand Englieh and have a k.no"ledBa ot arithmetic , that (20
they would be sent to 5wazil8lld where JlOBBS Ifabbida ""ould talce
them over, that Mabhida wns mnldng the neoesaary arrangements
for their training, that the coure. would la.et about tbns
mOnths or more. and that when they returned tbey would be
distributed throU&b NatoJ. to organiss in tbe trode unions
and teach others to do likewiae. He told Mnndla that
Ruskin College 10 England 1GB the only IIchool of trade
UAiooiam / ••••••••••••••••
•
•
•
•
- 5004- Judgc:lent.
unioniem that he knew of , but that they would find out from
Jlabbida whether they were to go to Ruskin college or some
other institution. He also told Mandle that they need not
take much clothing with them bectluae "most ot the things they
would tind that possibly Jl!abhida would tix up some
garmente for tbem to weer." The reason Why ooly seven re.
cruite were reQ.uired at that staas - instead ot eight ae deci ..
ded at the meeting Oil 10th Augu.at _ was that tbey "b!ld found
none in !mpe.ngeni for whom pre:paratiOllS could be mde" .
MaluUa told accused No . 1 that bs would speak: to boys wbom he (10
knew, and be reported some time later thtlt be bad tound 80me
boya wbo 'll'8re keen to undergo training. "ho were educated and
underetood Englieh . Accused No . 1 told hi.m that they should
hold tbeaaelves in readinees to go at any time , and proceeded
to make provieional arraneementa wi. th Mdub/llle to transport
them to lIaMmba. He simply accepted what Mnndla told hie
about the boys be had recntited, and neitber spoke to the
boys nor ande any turther enQuiriee about them. Save that
he learnt their na.clee and WIlS acquainted witb the parents of
eomB of them , he knew notb..1ng about them beyond what Mandls.
told him. He explained that he tnutted JlMdls whom he bad
known aince ch:Udhood and regarded B8 a clever boy.
A t about this tice Xubbeka came a.nd. reported
to accused No. on his trip to $wazil.:utd . Accused No . 1
denied Kubheks' 8 version of the oral Clee.age trom Thabo Mbiki,
and said that it waa merely to the e!tect that tlfhat be had
written about (i . e. money for the Luthuli cOClCleoortltion
service) / ••••••.•••••••••••
(20
•
•
•
•
-5005- Judgment.
Page 287 .
service) wae "all right". It wo.a on the 14th October 1975,
according to accused No.1. thnt he cet Iubhaka by arranaement
and went wi tb hilQ: to a bouaa in Edendale to l18e two people
t rom 'Port Elizabeth , namely Sbimwell Vuao and Pakamela Mphon
gosbe, who wanted to leave tbe country and go to swaziland.
He admitted that at bie request Kubheka told theID ho" to in 1Ia.nzi.ni
rind Dumn ' s place ot employcent .. but Aemed thOt he saked
Iubbeka to accompany them to Swaziland. He o.1eo denied
handing Kubheka a eeeJ.ed letter to give theae Qen , but adcl1t-
ted handing such an articls to them bimself . He said that
tbi.s conta.ined Nxe.sana' e report tor tdobh1da on the Durban
tra.de uniona and that the Port Elizabeth men were to deliver
it for him to Dhlomo. He sai4 that be bad eventually eent
his eon to 69t the report troe Nxasana at Umlazi, Nxasona
having fniled to deliver it to him by the end ot August as
promill8d. He did not deny tubheka'e evidence about leavinB
the bouse at Edendale and seeing the Port Eli:z.e.betb men o"ft
in a motor vehicle.
be "found tor thee.
He said tbat they lett in a taxi MUch
He said that Vuso and Mpbongoshe told
him wby they were going to Swaziland and that it Md noth1.ng
to do with the schen::e tor sending recruita out for trads
union tztlining . There ia no direct evidence to the contrary
and be lf8.8 not croes-exnc.ined on thie particular aspect .
Accused No.1 confirmed that he bad a discu-
88ion with Gamedze in October about sending trade union
trainees to Swaziland . He admitted reterring to the trei,.
eea all "p:ucele" and telling Gamedze that they woul.d be
going in / ••...••.... . .••...•...•.
•
• ( 10
• (20
•
- 5006- .1udpent .
Page 288 .
going in two batches ot six. He claimed that it was on this
oec.3aion thnt be enquired about routes into SWIlzilnnd and
learnt from Gaoedze about the one vin the ehop and the atil.e
over the border tence leadine to S8.CJJon !l!khize ' e kraal. He
admitted that on a later occaaion be got Gntledze to "how him
the s1 twltion of this place on a road map. He told Gaoedze
that ~e first batch ""auld go on the following 'rbureday , which
wna the 30th October , cnd gave b1m a letter for delivery to
Dblomo . Gaoedze enid tbat be would epeak to Samson Mlthize
about the matter and alao take the recruits troe Mkhizete
kraal to )lnnzini it Dhlolllo requested him to do eo.
Atter mnkinB these tu"rangemente wi tb Gamedze
aecused No . 1 instructed accused Ho • .3 to a.rra.nge for the
reerui.ts to 08semble and spend tbe night of tbe 29th October
at 80me place near the Temheliehle Gnrn69 , whicb Ml.8 the
place froe! whicb tbey "ou1.d leave at 6 B. m. on the 30th Oct.
ober . He had in tbe meantime made tbe necessary arrange-
mente witb MdubaDe , plying him R100 and ehowing him on the
road map (Exhibit ltV") where the recruit. were to be left .
At 6 a . ID . on 30tb October be 1II'9nt to the Tembelishle Gar~
and eaw the boys ott in Mdubane ' s taxi .
only five bo)'B Mnt on this occasion.
He confirmed that
He gave Mandl a inatrue_
tiona on how to crOBS the border to Samaon Kkhize ' s krBal,
and WBe In.!ormed by h1lD tbat one ot the five boys , PhileClOD
Kokoena waa oot a recruit but was thera beeB\lBe aooused No • .3
had requested that be ba given a lift to Swaziland. the
following day accu.aed No . 1 learnt :lbout the abortive trip
end proceeded / • ••••••• •••••
( 10
(20
o
•
•
o
-50)1-
Pae 289.
and proeeeded to make arrangements tor the next one whioh • be said, took plc.ce on 13tb November. He D.rronged with
accuaed No. J and Mandla tor the recrui til 'to tlSeeoble on
the night ot the 12th NOVl!.ober near the garage as on the
first OccDsion, showed Mdubane the rond map again, Bnd paid
h1.m a120 . On the morning ot the 13th Noveober be wont to
the gELro.ae end saw the party ott. It ia olear troo bie
evidence and tbD.t ot aeCUBed No. J that the six recruits who
'fII8re eent out ot the country on this occasion 'ltGre Yandle
Sikoaa.ns, Edsar Zondi, Jlltu. Khu.c:al.o, Raynold Ma4odo Hadebe ,
Vicky KbUJ:lDl.o and Caipbe.s Nene.
Accused No.1 dealt rather sketchily and db_
jOintedly wi th the matter of sending George Jlkhit:e to Swazi
land. He said that George WQ.8 tbe seventh Illld last recruit
tha t he sent away tor trade union training. Aocused No . 3
made a report to him about George, as a result of which be
arran.ged tor George to be accotlClodllted at the house of one
J:hanyi1a at Mount Pnrtrldae on the night before hie depar.
ture tor SwaZiland, and aleo o.rrangtld for accused No.4 to
aho" accused No.3 and George the ,,~ to Xhattyile'e plaoe.
He said tM.t 1 t wna on the 14th NO"Yeober that he cade the
arrangeQ8nta with Xho.nyUe. He gave accused No.3 en &mount
of 11:150 to cover the expe.naea of George's trip to Swaz.ilend,
and l eft it to him to hire the transport. He had in the
msantios told Mdubnne that eomeone would approach him about
ano"ther trip.
Al thouah accused No . 1 did not .pecirical17
• ay.o/ • • ••••• • ••.••••••••
•
• (10
• (20
•
- 5008- Ju dg!:l en t .
.ay .0 it 1s it::Iplicit in hie evidenoe toot the 1ni tial.
arrangecant was for George Mkhize t o lecv_ on 218t November
1915. According to hiB evidence Xubheka eaw biQ on 20tb
November at a bus atop near the Ita rket Sq,uare and said that
he bad beard about boys Who were to go to Swaziland, to Which
he replied "Yes, there are thoBe". Kubheka then ukad
wbethar there would be room. for a relative or friend of hia
who was being hzlrj-a8a8d by the pollce and wanted to go to
Ma.nzini to look for work. He told Kubhoka that "thoae due
to go" wou.ld be meetins that night at the home of accused No. '10
4 end luvinB the next 4O.y . that Kubbeka sbould go and eee
aocused No. 4 to find out whether hie friend could be takan
and bo" ClUcb he "ould Mve to pay for the conveya.''I.ce .
Kubheka did not know wbera accused No . 4 lived be told him
how to get there . It was that some evening , according to
accused No . 1 , that Kubhaka arrived at hie home with Linda
and asked to leave bie friend'e suitca.se there • He coo-
finned tb.o.t Kubheka left the suitc88e and M\.8 thereafter
driven by Linda to tha hoepit:!.l. It doee not appear from
the evidence of accused No.1 tb:lt he cOClElunicated with
accused No .4 or accused No . 3 on 20th November after hie
discussion with Kubheka . He was a.aked under cross~:xamin.a-
tioo. whether there was an,y objection to IIthtLlMe goin,g to
Swaziland with GeorSe JIkh.1ze , the sua:gGeUcn being that he
would object to a etrangar euch as IIlthalane using bie trans-
port. Hie answer was that there was no objecUoo. beoause
Kubheka knew MthaJ.e.na.
Al tbough / •••••••••••••.•••
(20
•
•
o
- 5009- Judgment.
lage 291 .
.u tbo\J&h he W3S not entirely aure about the
ee~uence of thS eventa, accused No . 1 con:t'1rced that during
tbe third 'II'8ek of Noveober be received from sylvia on amount
of a800 which ebe bad brought from Swazilo.nd . He etated
tha t the money wa.I concealed in the falae bottom of a wcc.an' 1I
bag , not e briefcue, and that it contained notbi.ng elae.
However , under croas-exn.minntion he adc:l1tud that it dao con
tained a letter _tatina; "Here 18 f'u.rther money whicb we are
aend.1ne: you . " He wn.e Q8toni.ahed to learn trom Gamedze tho.t
the recruits bad not arrived in Swaziland, and allegedly told {10
him not only about the tailure of the first trip but aleo
thnt they hIld lett again on 1)th Noveober. Thereafter he
took Gamed:.e to the Volley Service Station, to McCarthy'a Poul_
try Parm, and thence to town where he picked up Kubhekn and
Lulu. Then they drove out to Edendal.e, and on the ~ accu.
Bed No.1 told Xubheka th:l.t the boys whO were to have left
that Clornins (21st Novecber) bad not gone end that further
arrBllBeC18ntll would have to be cade. J.ccordiDc to accused
no. 1 be drop}:ed Kubheka otf at the Bdendtlle Hoapital , than
left Gacedze at hi_ mother-in- law" e plnce, and tbereafter
.,...nt booa witb Lulu aa bie only remaining pe.a1lBn&er . H •
thus denied Kubheka ' e evidence to the effect that they went
toga ther to his home and then back to toMl, pieking up accw..
sed no . 4 on the tmy . According to accused no. 1 be saw
Gamedze and Sylvia that afternoon and hnnded over the buil_
ding eociety card and the amount of B)O aa stated by them.
Ha confirmed thnt the namee on the card wore thoae of tha
eix recruite I .. .. . .. ..... . .... .
('"
•
•
•
•
- 50 10 -
Page 292 .
au reoruits ,mo hIld left on the second occaaion, that be
had arranged with G;3Cedze to go back to Snoson Jl!khize' a
place to enquire about thee , and thnt the 8Qount of B30 was
to recunerate O~dze for doing 80 . He alao ad.m1 hed bavi.ng
Oaaedze ' . onr tilled with }:etrol th!l.t afternoon. He did
not deoJ. with Gamedza ' s avidenca that he said be would aend
his daughter around tbe following raorning with another list
of boya who would arrive on 26th !'Ioveraber.
atands unchallenged end unoontradicted.
That evidence
Accused No 1 oonfiI1lled that after Go..aedze ' e
last visit in November he went to Bee Samson Mkhize to Bsk
for "directions regarding his hOllle" . He said that it 1'188 on
the 25th l'Ioveober that Kubheka cDme to hie hoce to fetch the
su1tcaae . It waa on thia occasion that he informed !:ubheka
of the arrangement for the trip to SWaziland on the 21th
November , told him to eae accusad No . 3 about transport for
the trip , and arrarl8ed to CIfIet biz:! the next da¥ to eho" h.1l!I
where accused No.3 worked. Xubheka Ca::\B to his bouse on tbe
(10
26th Noveober D8 arranged and they went by car to town , picldng
up accused 1'10. 4 at the Jl!ebulala bus stop on the way to town . (20
Ha dropped accused No . 4 and Kubbeko. at the corner of Gre,..
ling and Chapel atreeta, and gave Xubbeka directions 1.0
aocuaed No . ) ' a Plaoe of a=ptoyment . He tben went about
his own buaineaa in town , eventuo.l.ly meeting up again td. th
accused No.4 and Xubheka at or near the Valley Service
Station. Proo there he drove to the corner of Boehoff and
Pietermo.rit:r. Streata where accused No . 4 alighted, and
tbence to I .... ............... .
•
•
o
Pee 291 •
thence to the !darket SqUllre where be dropped KubbeJca . He
did not eee them again before appearina: in Court on the
present chargee, He denied drivill8 with Xubhaka and accu-
sed No . 4 to IdOWlt Partridge thnt day , llnd denied givina:
Kubbeka 850 or an,y money tor the transport and other exp8n:.
S8e co.nnected with tbie laat trip to Swtlz11~d. On 29th
November eccuaed No. ) o.11egedly gave hUI (accused No. 1)
an amount ot 850, 8Q¥i.ng that it was money pnid by Jrubheka .
Aceuaed No . 1 stated tb.3t the only other
person (i . e. apart from &CCUBed No . 3 and »aDdla) whom he
Baked specifically to obtain recruits tor training in trade
uniOnism wa.a aocused No.7. He saw scouaed No . 7 during the
_ale tollOwi.ne; the me_Una at hie bouse on 10th August 1975
and asked bim to look for sOCIa educated boys to 80 tor
tra1..n1tl6. By "educated" be had in mind a JWl10r Certificate
or Std. VIII level of education, though be w:us not insisting
on thllt standard. He did not e1abor:J.te much because acC\lD
(10
sed Ro. 7 had attended the l:I8eting and knew what was reQ.uired.
In or ~bout November he informed accused No. 7 that sufficient
boys had been obt9.ined and thnt he coul.d stop bis recruiting (20
activities .
Whsn accWled No.1 received bis third banning
order in 1961 or 1962 Moa88 Bhengu. succeeded hie as organiaer
of tbe Rubber Workera' Onion . According to accused No. 1
the,. were in ths habit of lending eaoh othsr emall 11II!0unts
ot money, (lnd it was thus that in July 1975 he lent Bhengu.
an aaount of R20 tor domestic expend1tW"8. He denied givi:l6
Bhangu thia / ••• • •••••
•
•
•
• •
- 5012- JudgcH!nt.
Page 294 .
Bhengu thia money tor the expenee. ot an A. N.C . cell . He
got to know accused No . 5 and lubheko. in about 1963 wben they
used to come to bie bome and discuse trade union mc.ttera .
Thereatter be loet cont:J.c t wi th Xubbeka until 1972 . At that
etage lubheka was working at the Edendale Hospital a.ad accu
aed 1'1'0. 1 eaw him quite often during 1913 and 1974 . Accused
NO. 5 took up employcent at the eeJllfl boapi tal. at about that
tine , and accused No.1 used to diecusil mtters of interest
eucb e.a the Xwe. Zul.u Govern::lent with him &Cd Xubheka . During
1915 accused No. 1 allegedly urged Kubheka and accused No . 5
to join existing trade unions and to encourage othere to do
likewise. He said tbat they both joined unions, o.l.though
be never an. X\lbheka's mecberebip ticket . He denied apeak.
i06 to Xubbeka about a reviveJ. ot the A.N . C. and of the for
mation of underground celle tor that purpoee . He aleo denied
that Xubheka told hic:l anything about Buhle lIthalane or thnt
he "'.38 orga.niaing cella tor any purpose. He claimed that
Kubheka ho.d talsely denied belon,ging to a trade unioo.
because any admission to that ettect could have led to trouble
witb the hospital. authorities end the poesible 1088 of bis
employcent . HO'MIver, he refused to acknowledge the obrt.
OUB tact that it the hoepital. authoritiea did not even want
their employ ... to belong to tro.ds uni008 they would cer
tainly not tolerate an ecployee wbo admittedly pc.rtioipe.ta:d
in terroristic activities .
Accused No.1 etated toot on 30th Novembsr he
and hie wi.!e were token to tb. ottices of the security police
at the / •• • • ••• • ••••••• • • •
(10
(al
o
o
o
- 5013- Judpent.
Pae 295.
at the Loop Street police station. hnvirlg been detained by
n. party of police under the oocman.d of Capt . Wolbuter.
When asked whBt he aaw or beard on arrivel tbere be suddeDoa
l y abandoned the angry toQe and aggressive attitude which be
bad been displaying and pretended to be so over come by ema-
tion that be coul.d not speak. We use the word npretendedn
advisecU.y because we have no doubt that he was simulating.
Be eventuaJ.ly enswered that he eaw a police officer cal.led
Lamprecht ooming out of a room and beard men roaring and
orying in that room. He eleo saw accused No.5 waliin8
along a passage nfti th his face downwards". He was not
interrogated at Loop Street but spent the night alone in a
cell . having been provided with b18l1kets whioh were very
old . tilthy and infested m th lice. During the night be
l'I'88 vieited by Col . Dreyer 'lllho told him that be bad ncruited
people for milt tary trainiD8 and would go to gaol for many
years. He oomploined to Dreyer about the condi tiOJl of his
blankets, and wns told that 11' the lice bit him be could
bite them bock. Tbe next day be 'fI'B8 reeoved to the Toftll
( 10
H111 police station wbere be rel!lD.ined until 8th January 1976. (20
There be wsa kept in eolitary confinement except tdlen taken
out tor exeroise or interrogation. Apart tram beiJ::l6 denied
proper waahill6 taoUitiea tor the first 15 daye , be had no
complaint about the cell , the food be received or his trea"-
ment generally at Town Hill . PrOCl the lat to the 11th
December he was interrogated daily by Capt . Wolhuter and
'R/O . 'Potgietar, both of wbom were reasonable a.ad cODSidera te
in their / •••• • • ••• ••• • ••• • • • • •
•
•
•
•
- 5014- Judgill ent.
Page 296 .
in their treatment of h.im. However. because hie repliee
had been unsatistactory he was subjected to continuous
interr ogation by pairs of interroge.tor9 operating: in relays ,
trom after lunch on Friday 12th Deceabe r through to the
morniQ8 ot Sund3y the 14th December . The interro~tore
'Mre Lieut . Coetzee and Driemeyer , Wolhuter and Potgieter ,
Lieut . de Kook and Cold , Capt . Pourie and W/O . Lamprecht ,
and two othere "hose names he did not know . He wes not
physically assaulted but was kept awake throUghout thie per-
iod and not allowed to sit except wbile eating 0. meal. and when (10
Wolhuter and Potgiete r were with him. He 8uftered from
fatigue , asthma and ewollen feet . So~e of the interrogators.
notably Wolhuter and Potgieter adopted a reasonable approach
but others sucb as Coetzee and Drieoeyer , de Kock and Gold,
and ]Pourie were harsh and threatening . A tone etage be was
overcome by drowsinese and fell fonmrd , .,mereupon de Kook
puahBd him back violently . At DDother stage Pourie took
hi.m out onto the lawn and wal.ked hi.m around in order to wake
h1.m up after be bad sbown signa of being droVl3Y. It was
drizzling: at the time , and accused No . 1 Ml.8 teken outside
in spite of his protests that it would aggravate the astbt:la
he waa sutfering. In tact it brought on a severe a t tack
ot asthma and bay fever . On the SUnday corning Pourie told
him that be would be provided witb the necessary facilities
to wri te the etateoent whicb they required , and warned him
that if the statement was not eatisfactory the sace treat
ment would be resumed , that they woul.d not lay a hand on
bil:J. but / • ••••• •• • •• • • • ••••
(20
o
o
o
o
-5015- Judgmer.t..
Page 297·
b1.cl. but would make b1.m st.and and deprive him ot s1eep. He
was returned to hie cell a..n.d provided with a tab~e and
ohair and writing IIIllterinls. 'Prom then until "'the 8th Jan:.
u.e.ry be was busy wri tina a etatement and was no longer BUt.
jected to interrogation. He enid that be was in poor bealth
during this period, and described in detail the anxieties
which he suttered. DurinB this period Potgieter told hi1D
that Col. Dreyer ' s instructions were that he was to be moved
trom the 'room Hill police cells back to Loop Street. becBUfJe
the rown Bill celIe ~re reserved for people wbo co-operated (10
wi. th the police . On the 7tb Janunry Wolhuter told him that
because they could not nnd the A.N.C. papers at hie hoce
everyone there would be arrested, and tbllt they had aJ.ready
detained hie daU&hter Lulu. He was perticulerly anxious
abou't the welfare of his wite who bad been dn.cgerously ill
with asthce., and his anxieties were increased when 'the police
in:tormed him tha1; they bad aJ.so detained hie eon L1n.da. On
the 7th January he wrote a letter to Wolhuter, etating ~
~ that he did not think tba1; he had very 10DB to live,
and requesting thtlt arra.ageoents be made for him to ce.ke
a w1.ll. On the 8th Jo.nu.ery he was returned to Loop Street
and lodged in a smaJ.l cell wi tb filthy , lice-infeeted
bedcl.othes. The cell 'MiS f'Umigated and he was provided
wi tb new blankets after he bad banded a written complaint
to the visiUna: ~gistrate on 15th January. On the day
atter his return to Loop Street he was intormed that the
statement 'fIIhich he had prOduced wtlS uneatisfactory and that
it would b:ve / •• • ••••••••••• • ••
(20
•
•
•
•
-5016- Judpent.
it would have to be re-written. During the next fortnight
W/O . Potgieter took from b:U:I and recorded a fresh statemont,
after wbich be was 'transferred to the gaol to awai t "trial .
According to accused No. 1 hie interrogator s
repeatedly accused him of recruiting people for military
training, organiaing the A.N . C. and so forth, alleged that
they had evidence 'to that effect, and insisted that he agree
with wb~t thoy were telling him. At one stege Capt. pourie
allegedly said that he had information th!lt accused No . 1
had " introduced people bere who "ould be fighting on the
16th December" and that be wanted those people . He said
under cross-eJtO.tDination tbnt some of the thin&s the police
made bim write in hie statement were false. When re-exo.m-
ined ' he c1nimed that he had not intended to eay anything
about the matter, but be eventunlly did eny tbat most of
wbat tbe police made b1m M'ite _e false . He was ill at
eaae when dealing with tbie topic, and our clear impression
at the time was that he WD.B lying . However, it is possible
that this was a miste.ken impression, for the eigns which
gave Tiss to it to8J hove been the product of anxiety about
the risk of revenling the contents of hie eta tement .
The foregoins is e. broad outline , not a
detailed resum6 of all the evidence of acoused No. 1 con
cerning hie tre::ltaent and interrosatioD while 1.0 detention.
Dr. WBSt ",as referred to his account of the marathon inter
rogation frOat the 12th to the 14th December and made the
fairly obvious COCilQ8nt thGt it eounded like an ex:llDple of
sleep deprivation / ••••••••••.•••
(10
(20
I
-.)V.,- .. u.I£t!,III'u.~ •
PMe 299.
He aJ.80 said th=1t a person's fnt
become swollen it be is forced to stand for too lons, and
tbllt forced etand1ns was one ot the commoneet methods used
by Chinese interrogators .
Accused No.1 gave hie evidence in s bold,
often aggreeeive mo.nner , tryins to score pointe ott the
proseoutor .mea the opportu.ni ty preeented itself . However,
apart from the eimula\ion to whioh we have already referred,
his demeanour W98 not suob aa to indioate that be waa an
untru thtul. wi taus . 1'hat do .. not mean, ot course , thD.t he
made a favourable impression upon us - he did not . Hi.
evidence must be evaluated in the light of the probsbUi_ ,
tiee and all other relevant evidence , includi.D.6 that given by
aome of the other accused. We bave already adverted to SOCie
ot the improbabilities and inconsistenoies in the story Which
he told, and it will not be out ot p1ace to mention a few
Clore at this stage. 1'be reoruitment of saven trainee. from
the Piatermari tzburg area ia inCOO8istent wi th bis evidenoe
that at the meeting on 10th August the suggestion was that
(10
only two be ObUl1nad frQIII there. Hia story 'tb4t oaly George (20
Mkh1.ze - the seventh and 188t recru.1 t - was due to lea.ve for
Swazilnnd on 21st November oannot be reconciled with bis
evidenoe ot the al.leged convorantion with r;:ubheka on 20th
November. It will be rec::uled that tMs w:l8 to the ettect
that be told Xubbeka that the bo)'$ ,mo were due to leave the
next day woul.d be .eleeting that night at tho home ot 3ccused
NO . 4. 1'here is not any doubt that he CIIIant to refer to boys in the I ..... ......... .
•
•
•
•
- 5018- Judpent.
PM' 300 .
boys in the p1ural, because hie evidence on this upect we.s
accurately foreshadowed by -.bo.t hie counsel put to J:ubbeka
in cross-examinAtion. It the leven young llIen whom he
admittedly eent to Swaziland were destined to Play sucb an
important role in tho revival of s;..CTU it 18 groesly io
probable that he ,,"ould hove left the eelection of 8ix of
them to lIandla SikoBCLna, without taki~ 3.rly further eteps
to S!ltiaty hir:self that they were auitabl.e ce.:td.idntee. It
also strikes us e.a being imprObable that accused No.1 WOUld
have a type-ri tten copy of the letter 'l'lhicb be moote on
toilet papor and sent to Swaziland concealed in a roll ot
cottonwool.
The prosecution led the evidence of no leas
than nine w1t.ness8e to deal. .nth the allegnt10ns made by
accused Ho. 1 regarding hie detention and interrogation 1_
Col. Dreyer, Capt . Wolhuter , Capt . Pouria , Lieut. de '(ock,
Lieut Coetzee, w/o . Holloway, Sgt. Gold , Sgt . Driemeyer and
the chief lIISBietrnte of Pieterlllllritzburs, Mr. van der Jderwe.
Col. Dreyer has been ill cOIIIIIIlUld of the Natal (Inland) Divi_
8ion of the security police since 7th October 1963. H.
testified that as a result of information received he ordered
tba arr9s't and detention ot tour perlona, including accu.eec1
H08 . J and 4 , during the night ot the 29th/30th November.
Ariaina out of this varioua other persona were detained,
includins accuaed No.1. Dreyer admitted viBitiDB accused
No . 1 in hiB cell at Loop Street on 30th November. He said
that the purpose ot the viai t was to uplaill the provisions
of sec. 6 I ..... ............ .
( 10
(20
D
o
PM! )01 .
ot eec. 6(1) or Aot 83 of 1967 to accused No . 1 and to
aaeerto.in whether be had cny complaints . Accused No. 1 ..
en old aCCluaintnnc:e whom he had no't aeen for a lona 'tilDe and
the interview 'Inl8 l1gbt-b8o.rted and gemeJ.. He admi tted
that the accuaed complained about the condition of the cell
and the blankets, and that wi tb reference to the lice be bad
aa1d "Wall, Harry , bite thea back" , Be denied that ill8
remark weB intended a.II anything but a joke on the spur of the
moment, and dieogreed flith the a\1g88at1on that it had an
adverse affect on the accused . He aleo denied that acoused
No. 1 W3a doliberately pl3ced in a dirty, lice-in!eated cell ,
and explained that the cella o.t Loop Street wera occupied
day and night by variOUS prilloners , On the following day
he ~orm8d the atntion coccnnder of the Compl~iDt reg~rd1na
the condition of the cell and the blankets , but this did not
affect BeQus.d No . 1 because he was moved that day to com
paratively coafortable accOlMIodation at the 'rown Hill pollce
atntion. Dreyer teatified tb::lt on 30th November be expla1.n-
ad tbe provie1ons of lIeo. 6( 1) to accused "0. f , informed
(10
b1c tbot the aJ.legation agninst him was thllt be had organised (20
tbe rt'IvivoJ. of the A.A . C. in Pietermaritzburg, 'Cold b1m that
hiB interrogation would coacence the next morn1..n,g , and ex-
prossed the bope thet be would co-operate . He denied sa)'"inB
tbnt accused Ho. 1 had recruited people for military train:i.nB
or thnt be would go to gaol for me.ny yeo.ra .
Capt . Wolhuter contirced that be arreated
accused 80 . 1 and his '!dfe on )Oth November and took them
to Loop street / •• • • ••••• • ••••• •
•
•
•
•
.----
Page )02 .
to Loop Street at about 12 . )0 p . a . ),In . Gwala was released
the anoe afternoon, and Wolhuter ao.id thnt he informed acc".
aed No . 1 of ber release soce t1ae before the 11th DcceClber .
Wolhuter stated that be took poaaesaion of two cardboard
boxea tull of papers when he c.rreated a.ccu.sed No . 1 . He
went through these papers in due courSQ but did. not keep any,
and durins Ausuat 1976 be returned the boxes and their entire
contento to accused No . l ' s bome. If Wolhute r' s evidence
is to be believed it refutes tho suasution thl'.t t he pOlice
t ook and kept or disposed of tbe docucente which , Bccordiac
t o the defence evidence , were read at the meeting on 10th
Au.gu..st 1975. Wolhutor said tbat accused No . 1 agreed to
dispense wi tb an inventory of the pnJlCrs removed from his
bouse , ruld that it wos mainly in the accused' s presence thllt
be went through the papers . None of hia evidence on this
aspect of the Clatter d8 c~llengod , and we are saUatied
that it is true . The suggestion by accused No . 1 was that
the police found the copy of Me.bhidn' lS address to SACTO and
the other docucenta or letters which are crucial ~ o t he
defence version ot tbo C8etins on 10th August 1915 , and that
they deliberatelY suppreased this vital evidence in order
to trust:ro.te the defence . Tbe 8USSUtion is so preposterw
OUB that it is not surpri8it16 that counsel tor the accusod
refrained froQ challengiqs Wolhuter' o svidence to the con
trary .
Wi th regard. to the oJ.legation that eccused
No . 1 was unable to wash his body until the 16th December ,
we have the / ••.••••.• .• .. • •••
( 10
(20
f)
o
o
- ,Ul1- Judgmen't .
P3ge )0].
we have tbe evidenca of Pourie and Wol..buter that be bad
adeq,uate wasb.inB faoili ties nod made usa of them .
lIo.id thllt at about midday on the 2nd December Mrs . GwaJ.a
c:l.Cle to the Loop Street police station with a packet con
~1.n1ns food , a cAko of Lifebuoy soap GAd a wosb-ol.otb for
accUllod No . 1. He gave her a receipt for theae articles
and bD.nded thee to Wolhuter , o.nd Wolhuter teat:Uied tt.nt he
gave them to e.cc\I.88d No . 1 tha.t same d!l.y . Wolhuter add
that during the period in q,U88tion accWled No . 1 wns allowed
to use a IIhower in tbe old barracks at Town Hil1. Wolhutor
wnB e.l'fI'D.ys presont when the accusod took Il ahower . but could
not recember bow often be did ao. On tbe first occasion ,
which WllS shortly atter the accused' a arrest, he inspected
the abower room h1m.I!Ielf bofore nl.lowing u acoWied to uae it.
He did 80 to enaure thnt the shower room contnined nothing
which accused No .
to attack him.
oould have used as a weapon with Which
It is a~tted by the police thnt accused
No . 1 was subjected to interrogation by interrogators opera-
(10
ting in relays for a continuous period of 43 hours , from (20
4 p.m. on the 12th to 11 a . m. on the 14th Docember , o.nd tbOt
tbe interrogators included Wolhuter, Pourio , de Kook, Ho1.lo-
~. Gold and Driemeyer . paurie testified tbnt they 'fIOre
faoed with Q crie18 , in the eanse that tho available in1'or
mation indicatod that somo lIort of trouble wouJ.d occur on the
16th Deoember. Ke disouseed the matter with Wolhut;er who
was hie senior , and it 'fftlB deoided to su.bject accWled No . 1
to intensive I . . ... ........... . .
- 5022'---- ---J'W!.gment .
• Page 304 .
•
•
•
t o i n t ensive interroGotion by & cycle of interrogatora because
it 'M18 cl.enr that he WD.8 withboldi.nB information ..tLieh could
throw light on the it:Ipendi.n,g eriala inter alia '--' l'ourie
drew up It. roster and tiMe the Mcusery a.rratlgementa f or tb8
inter rogation to commence at 4 p . m. on the 12th Dececber.
The interrogators oper ated in tbree-hour llhifts and Pourie
hi.maelf worked three of theo : one durill6 the eveDi..ne . another
cOl:lC.enclng at 2 P,..lll. on the Saturday , and the last a t 9 e. . m.
on t he Sunday . He denied tbBt the accused lWQ9 foroed to
stand while he interrogated him . The accused was free to
ato.nd or sit GS he pleased e.nd i n fact he r eCl8ined aeated
cost of the time . Pourie conceded that accused No . 1
bscaoa progressively tireder as the interrogation continued ,
and added ttut he WQ.8 just aa tired 88 the acoused . He sa.id
that he hsd no sleep froD the Priday to the SundIly , and that
80 far lUI he knew neither hie 0"11 stllff nor the officers
eClployed in the investigation had B.n:y sleep ei tber . By the
tics the interrogation ended Paurie was very exhnusted , and
we have no doubt that accused No . 1 was even mor e exlulWltsd
than he . With regard to the allegation that he took nccu-No . 1
lIed .. outalde to wake him up, Pourie o.dltitted thnt thoy wal..ked
around in the garden for a wh11e on the Saturday nfternoon
but aaid th!lt this wtUI at the a.ccus8d' lI request . He denied
that it WGe drizzliD6 at thnt tiCIe or that the nccused No .
.!:lade ony protest nbout going ou tside . He did not know at
that et.:lge that acoused No . 1 W3S Bll esthoatic, and SQW no
signs that he lIO.8 aU/brine frOf:l Q8thcn. On the Sunday
cornine I .. .... . . ......... . .. .
( 10
(20
o
o
- 5023-
morning , according to Fourie , the acoused said that he would
be able to concentrate nnd QB8ec.ble his fecta better it be
we r e provided with the necessary tacili ti .. 1n hie cdl and
lett to wri ta hie 8t8t81:100t und1eturbe4. .18 be wns aatiatied
wi th the intorcation they hod obtnine4 trom aocused No . 1 at
t hllt stage l"ourie agreed to hie requsst , terminated the inter
r ogation 3.nd lU'Tenacd for him to be provided with a tabl,. ,
chlrlr and wri tine lID terleJ.a in his cell later that d!:l.y.
Pouri. denied tbat the interrogation was termnnte4 be08W18
accused No.1 went on a. hunger strike , end denied that he in- (10
atruoted him to wrl to a atateoent or made any threat about
further interrogation or ill- treatment it the atatecent was
not satisfaotory.
It is clear th:lt even on tbe police version
of the nftair o.couaed No . 1 tm.8 aubjeoted to Cl form of inter
r ogation whiob is oovered by the tera " third degree" as
defined in GOS80hnlk v, Roesou'll' , supra at pp . 492/3 . Capt.
'ffolhuter , .mo apparently 1. n mild~-nnered, decent type
of pereoo, tm.8 obviously embarrcssed at hnv1.ns to.ken part
1n this interrogation - which i. a possiblc exPlanation fo r
the fnct that hi. evidence o.bout it 'II'EI.fI neither frank not
satisfactory. It CBnDot be u .id that he lied, but be did
'try to evnde queetions whicb ware deeigned to es~bl1ah that
accused No. 1 WB8 subjected to n continuous cycle of interro-
gation and deprived of aleep ftbil.e it lnated. The reaaona
which Wolhutsr ~V8 for subjecting accused No . 1 to this
sort of intarrog:ltion were also uns:ltis!nctory. He said that
be bad coca / • •• • •• , " ••. . ••••• •
(2Q
•
•
•
•
- 5024 -
he hod CODe t o the concl usion that nccuaed No . 1 was a til1
withholding ieportant intol""O!l.tlon , that perhnps the accused
was tired of bei.ng intarrogated by Pote!eter and b1J::lself ,
and be t herefore decided to try a cycle of i nter rogators who
would queaticn hie unti l he was tired , but t he i ns tructions
were thllt when t he accused WQ8 t ued hs 1\188 to be ol.lowe d to
go end eleep. He lIo.i4 thAt he ha.d no personal. knoWledge
of any intcr~tion indicating a ~tter of urgency which
warranted thie intensive interrogation. However , we ~
snUetied OD nl..l. the evidence that one of the r e0.8ons , it not (10
the main reoaon f or the marathon i n ter rogation W8S the noed
to obtain information nbout a crisiS which wns expected to
occur on the 16th Decoaber , and we accept pourie ' s evidence
t b.:lt be told Wolhuter about the crisis . Accor ding to their
evidenoe de Kock , Hol loway , Gol d Md Drlooeye r wero all nwnre
of t he iapending crisis , and the interroption was concer ned
wi tb cbttdning infonDQtion about it . The information which
the police b.a.d at that 8't36e w:1S extrecely vague , tuld B8
Qatters turned out the orieie did not ao.t.eriol.ise . Hollown,y
i n p:1rticul.sr was at a 1 08S to reool.1 or explain the nature
of the crids which they expected to occW' on the 16th Dee
ecber , but w ere nevertheless convi.nced that the police ...ere
genuinely concerned with inveetigntin& that possibility. We
do not o.ccept the submission that the impending crillia wa.a
fabr1oo.ted Q.S an excuse for subjecting cccused No . 1 to the
mnrathon interrogation.
De Kock , / • •• • •• . • •. • " • . " • •• "" ••• •
(20
•
•
•
o
Pase )07
De Kook, Holloway I Gold and Drleoeyer
denied that acoused No . 1 tm.S forced to stand at MY time
wben they were interrogating him during the period trae tho
12th to the 14th December . De Keele epeoiticDl.ly denied
the a.11egoti.on that he ~Qd the o.ooWlod Mon ho
becaoe dro_y, D.8 well DB the general. obnrge that be Ml8
violent toMlrda the accused , and he wns corroborated by Gol.d
who was hi. partner in the oycle or interrolPtors . All of
the polioe witna8s8a who were questioned on the point denied
tho aooused 's a11egat1ons to the eUect thnt they told him
what they wanted him to say o.nd insisted that be cgree with
wb!l.t they were telling hie. The point wtlS made tic. and
tiJ:Ie aaain th:lt the object of interrogation is to obtain
llccurate lntorca.tlon , and that suggestive quostioning which
indicotea fthnt the intarrogator aJ.ready mo"" or would like
to hear only serves to dorset thet object . "e r1I:gard this
sa being selt-evident, and wo have no hesitation in rejectina
the evidonce of ~cused. lio . 1 that hie interrogators were 110
stupid fI.lld perverse ae to fead him ldth false info~t1on
nnd inabt tbnt he incorporate it in his statecent .
Lieut . Coenee denied that he took part in
the interrogation or acoused Nc . t on tho 12th, 13th ~d 14th
December. He hl1S been stationed o.t Vryheid at all mo.teriol.
time. but WQ8 o:ll.led to Pietermarihburg to assist with the
inveetigation ot this (l!l8e. He teetified that ho and Drie_
meyer interrognted cocused No . 1 at TOml Hill on the 2nd ,
.3rd, 4th / •••• • ••••.••••••••••••••
(10
(20
•
•
•
•
.3rd , 4th and possibly the ,th Dececber , tald.ng turns with
Wolhuter and Potai.ter. He denied thnt cccusod No . 1 WIl8
roquired to stand 1'Ihil,e he interroge.ted him , or that he
threo.tened hie or ewere at hiD. He left tor Vryheid at
10 a. . m. on the 12th December e.n.d did not return to Pie ten.
oo.ritzburg until 1Il0ndlly, the 15th Decembe r . He had inter.
ded to go home tor that weekend , but lett earlier than he
woul.d bnve done beoause Col . Dreyer instructed him. to do
eomething at Vrybeid in conneotion with the crisis which wcs
expected to ariee on the 16th Deccmber. He enid thct he
hell.I'd about the marathon iIltorrognt1on ot accused No . 1 nnd
understood thnt it was concornod with the ilDpen.d!.ng crieie .
Driemeyer contirQCd thnt ho and Coetzee interrogated accused
No.1 duri.na the period trom the 2nd to the 5th Deceober but
could not reoccber bo" often they did 00 . He denied tb.:lt
Coetzee partnered hie in the marathon interrogation, thereby
contrnd1ctillB the ev1.dence of accused No. 1 and corroboTl! ••
ting th:l t ot Coetu • •
Wolhuter nda1tted reoeiving the letter datod
7th Ja.nu3l'y in "hich sccuaed No . 1 wrote ~ a1.io.
"As I 8.1:1 not &llowed to see lllwyere under the Terrorism Act, 1 " onde r 11' 1 woul.d be
allo~d to so. the visiting cagietrate this week to cnke try wUl to b1.c. . I thought over this IIIIltter very cnretul.ly last night
atter completinG the etateaent I was caJdne and it baa beooce very clear to mo that I
any not haw a very lOllB tic.e to live .... .. .
Itiscl.ear/ ••• ••••••••
( 10
(20
I
t
o
-,V,/_ --- .Juugmerr~.
PaR! )09 .
It 1& clenr from the letter thIlt accused No.1 was sutter
ing t r om deprossion at the tice but we do not know precisely
what cn.used it. Wolhuter said that be knew the nQ80n but
eounael deliberately retrained frOQ aaking him to disclose
it . Wolhuter denied a suggestion that the letter W8B eOGle_
how connocted with the accused ' s removnl trom ~own Rill to
Loop Street the following dlly . He wall aware th3. t accused
No . 1 eutfered from cheat complaints and that the move back
to Loop Street woUl.d nffect hie he!llth, but denied that it
wns ordered beco.US8 he was beinB unco-operative. There were {10
two reasons for the Clove 1 (a) the cell which accused No . 1
occupied at Town Hill was one of the few deeigned for fel!lDJ.ee
and .".as required for Sylvin Go.aedze; and (b) it would
tacUito.te tho typiQ6 of acclUad rio . "8 otatocont if be
were kept at Loop Street where ths typistes worked. Mr.
Mu11er contended toot both of these were spurious reaaoM,
the tirst bec3use Wolhuter conceded that a coJ.e woul,d ho.ve no
di:t!1culty 1.0. using the female oell, and the second becnuse
of an ndcission that security policeaen caved regularly be-
tween the Loop Street and ~Otm Hill. police etntioQS . He also (20
pointed out that on Wolhuter'e evidence Sylvin GQQedzo 00-
operated thro\J6hout , she bad been kept at Loop Street eil1ce
her arnet on the 3rd Ja.nuary, and there was a straight swop
thnt i.nvolwd accused No. 1 bein& moved from 0. cocparatively
oOmfortable oell to on environcent which wcs dear~ and
dangerous to his hsoJ. tho .. e do not agree tbat ei ther ot the
ransOM given for the move waa spurious or, for 'that CI!1tter,
in tho lenat / ••••••••• • ••• • ••• •
•
•
•
•
Page 310 .
in the least improbable . Wolhuter explained that the fe _
male cell ~ to be used for the o.ccocmo~t1on ot a femc1e
priBoner if there wc.s one, and that accused No. had only
been l odged in it in the first place bec.3use ot the tor tui_
tous fnct thnt there wns no teotll.e priaooer tor which it wa.e
required at the twa. Thero is no expl3.DD.tion for the delay
in morlnB Sy1 via to ~own H1l..l , but we do not see anything
einister in that . Ae to the other rsason tor the move ,
Wolhu t er did not claim that it was necess~ry to beve accused
No.1 tit Loop Street for the purpose of typing his et.::.'teeent , (10
but only that it would be easier if he ...are there . On the
other band, the claie that accused No . 1 wns moved back to
Loop Street as p..ullshment for his 011880d lack of co-opers.
tion ia diff1cult to reconoUe with his evidence that he bnd
been busy writing out tris statement as required by the police .
Col. Dreyer olso denied that this 'ROS the reElDon tor the move .
He ordered the move , and he con!irc.ed that he did 80 in order
to provide 8CCOo:lod:ltion for Sylvia Gnmed.ze.
It ie coacon c::.use th!lt no A. N. C. popers were
found at accused no . 1's house and that hie cbughter and eOD
were detainsd and Inter releo.eed. Wolhuter denied that this
was done to inticrl.date the accused , or for an.J reQ80n othsr
than to obtnin Lntor~tion . He deniod threo.teni.ng to deta.1n
members of tho accused's facl.ly bec!luee ths A. N.C . pnpers
could not be found . Dreyer ordered LuJ.u Gwalf!. ' s arrest , and
he said that he did so because he wns s:ltistied tMt she bed
1n!ot'D.!ltion relev::lnt to the investigation.
ThB cagis tro. te / • . ••. . • • .• .
(20
•
e
)
- 5029- Judgment.
Tho J:l3gist:rote, lIr. van dar )lenre contirmod
tba t on the 15th JlI.nuor:r aecused No. 1 banded to him n lenstb.Y
written compl::Lint about his troatcent, and 8 Cl,U3.Dtity ot lice
"Mcb 113d beon removed from his bl:.nkete . 16r. van der Jlerwe
was .~ti.fi.d that tho eompl~int about the lieo woo truo.
The contents ot the 'fI'1'i tten comple..1.at were rend into the re_
cord during the oaurse ot the croee-exnmination ot Col . Dreyer
and Mr. von der Merwe. Mr . Muller relied on the compln1.nt
as corroborn.ting ncoused No . 1'e evidence regarding his 1ll
treatment whilst in detsntion and under interrogation, tor
he aubmitted th:lt the accused would not have provokod tbe
police by mDJdn,s un1'ounded allegations nsainst them at a t1.me
"hen be wo.s IItill in their custody an.d control. It seema to
us, b01'l'8vcr, thl:lt it there IIWI any ClU8stion of the cOCllplaint
giving rho to reprisaJ.e it would m::lce no dittorence 'lllhether
the nl.legattons contninod therein were truo or talae. In
nny evant, bl\viJlg regnrd to tho contents of the cocplaint
and aJ.l. other releVltllt circuosbnc:ee disclosed by the evidenoe ,
1J8: do not believe that accused No . 1 had cny reo.aon to tear
reprj,eals or nctu.:lJ.ly apprehended that there 'fI'OUl4 be an:t .
The written complaint covers most ot the allegations ..trlch
acou.aod No . , =040 when givins; evidence e.beut his detention
and. 1nt.rr06~tion , but there is one glaring OI:I.isllioo. H.
oOQ.plnined that trom the 12th to the 14th December be "08
"subjectod to continuous queetionins 'I'd thout sleep by vurioUB
geobers ot the security torce", but said nothing about being
torced to stand during that period. It there were any t:ruth
in the / ••....•••..•...••..•
( 10
(20
•
•
•
•
- 50)0- Judgment .
in the allllglltion th3t accused No . 1 WIlB forced to recain
sti1OdUlg, to the extent thnt hill teet were ewollen , we have
no doubt that be would bnve aentioned it in this detn.i1ed
written cocplllint . We are IIQtietied that the nllegatton i8
tnlse 3.04 toot the police W'itneU88 were truthful. in saying
that he troll not required to reClBin standitIrB ot 8D3 stage .
Moreover, tbn1; deliberate talsehood casts serious doubt on
the rnt ot hie evidenoe nbout threats. hnrt'aeeoont and
harsh treetment at the bonda of the security police.
lIIost ot the accused' a allegations bllve ecce
basie 1.n taot I Dreyer 41d tell him to bite the lice back ;
he wos provided with lice-intested blankets; be wos eubjected
to continuous interrogation tor 43 hoUTS Without sleep; hie
80n and cb.ugbter were detained ; be did Ollke a willi and he
1ftlB moved back to Loop Street . However , 'fI'e are eatiafied
thnt the reat ot hie coaplninte were either totally un!()U.D;.
dad or gr0811ly 0xaeserated. We accept the evidence of the
police 'fI'it~ •• es who were colled to refute the accuaed'a
allesatioDII ot improper treotoent . We have already hac!
occosion to c0!:D8nt on Gold and Holloway 88 wi tneBllos. Gold'a
evidenoe oovered a wide field and he 'fI'8S en excellent 'I'd tz::IeS8
througbou t. Holloway W08 YaBUe at times, but patently" honeet .
Aport troa being evasive about the CllU'nthoo interrogation,
Wolhuter impruaed us lUI boin,g a sincere . conscientious and
truthtul peraon. Dreyer, Pourle, 4e Kook , Coetzeo and DrieD
Il:eyer were excellent wi tnesses. They dealt convincingly with
nll questions put to thea in croas-ex.."'.O.1natlon and appeared
to be honest / ••••••••• ••• •••• .
( 10
(20
•
•
•
- 5031- Judpent.
Pnse 313.
to be honeet and reliable . However, that a.aseeoment i8
subjeot to one resorvation, in thnt we are not eatietied.
tbllt de Kock wae bein& altogethor frank when be said. that
aocUBad No. 1 IIho_d. no eigne of beiQ8 t::1..r.d or sleepy when
be interresated him on the 13th and 14th December . J or the
reat , bie evidence concern:1.ns the marathon interrosation ia
oorroborated by that ot Gold and we are aati_tied that it is
true.
IIr. lIluller complained. that the State'a
version of the trllatment of accused No . 1 in dlltention and
under interrosation was not put to him in cr088-eJllJ!lination,
. with tho Neult that he bad INnered. prejudice 'through bei.rl.g
denied the opportunity of deal.ins wi th the State veraion in
his own evidence and cal.llng further evidence to corrobor
nte hie version. Tho Court was referred to casos such as
Rex , V t M. 1946 A.D. 102) at p. 1028 and SCI8.l.1 v, Smith
1954() S.A. 434 (5 ••• .1. . ) at .p. 438 tor the proposition that
in general. a party should put hill ease to hie opponent's
witnesses, and. that a witnen should be civen fej.r warning
of any intention to lead evidence to contradict him, so as
t o B!'ford him an opportunity of explaining the oontradiction
and defending his own cbaro.cter . A fau.ure to crOB~~
ina genero.U.y implies accepto.n.ce of the wi tnGsa ' e version,
but the rule is by no me~ns inflexible. In thill ilUllt:lnce
Mr. 1Ioosou" informed acoused No . 1 that he did not propose
to enter into detai1 with re~ to the mUer of hill interro.
satton bectlWle "tMt woul.d. Just cloud the issuea". Bowever,
he speCifically I .... ....... .
(20
•
•
•
•
- 5032- Jucigtlent.
pm 314.
he speoifically put it to 04cWled No.1 thnt the police told.
b.1J:l that they wnnted the truth from b..1I:I , end tbB.t the Clue8t
ione they aaked 'll'8re deeigned to obtain thO truth , not fnJ.s8
intomntion. It 1a cleor from his ana"rll that acc\18ed
Ho. 1 appreciated thIlt hie allegations thllt the police told
him wbat t o lIoy were bOina obollellB:ed ~ He waB queetioned
in S0D8 deb.i1 about the ramovnl of documents !roo his home,
tbB .i~a of his cell at Loop Street , hi. f ood and the exercise
be lI'a8 si .... n in detention. It was not specifically put to
him that bis allegations about threats and being forced to
stand "ould be ccntradicted. • Ho..aver, lIIr. R08eau" did put
it to hin th3t, conaider1llB that they were inV8st1ga.tlnB: a
aecurity 8i tuation, the police treated him very well . He
alao asked thc accused how the police h:ld handled him
rou,gbly, and received the reply "Not physically" .
It would have been better to challenge each
of the disputed el.l8sations in turn, but it was made perfectly
clear that the Court would be BJlked to reject tho accused'.
evidence to tho enect tbllt be 1'IWI Ul- treated ond forced to
incorporate flllseboods in hie otntecent. We do not think
thnt accused No. 1 WIle prejudiced by being deprived of the
opportunity of repeating each of the &llegationa under croe8-
eJC.Cin:1tion or in ra-exAm1MtiOD.. '1'he cnly iasue on which
it was lI\l6&cetcd that the defencs CLigbt haw led corroborative
evidence wne the presence or abeence of Lieut . Coetzee troo
PietercaritzburS durina: the period from the 12th to the 15th
Dececber. It 1'm8 not put to accused No.1 t.ha.t Coeha. wa.a
e'NflY durina; I .. . . ......... . . . .
(10
(20
o
Judgl:len t.
away during that period, the probable reason for the OCieaion
being that Mr. Hos.cuw waa not in poaussion ot the iatorcation
at ~t time . It is clear tram Coetzee's evidence that he
WB.9 at Vryheid tram the 26th October 1916 to about tbe end at
Pebruary 1977 when he returned to Pieten:aritzburg tor pre.
cognition in connection with the rebutting evidence . It ...
then thSt tbe relavont pa&80898 troQ accU8ed No.1 ' . evidence
were rend out to him and he ilntlediately noted that the eJ.le.
gat1.ona were incorreot, in that he was not in Pietermarihburg
when the IIItlrotbon interrogation took picce. In any event,
whetever the reYOD tor the tailure to put this to accused
No . 1 in crose-examiDlltton , it there was 8D¥ question ot
leading turther evidence to corroborate accused No . l'a
verei oD I do not think that Mr. Muller 'I'OUld bnve ehrw:ik
trom aPPlying for leave to lead it atter tho proeecution
C1088d ita case .
In our view the acceptable evidence relative
to accused No. 1'8 detention and interrogation in DO w:lY
supports the conclusion th:1t he was subjeoted to a pnttern of
(10
degradntion , physioal exhnwltioD, h:lrjnaacent, iatimi&LtiOD, (20
threat. and suggestiva questioning to induce him to cOClply
trith tbe wisbes ot the polioe. On the contrary, ...a ore
satisfied thnt there \Ir.lS no deliberate degrndntion e.ad no
other Ul-tre:lUlont except for the continuous interrogation
without sleep for 43 bourSe Aa will hereinafter appear,
acCUSed Noe. 6 and 8 were also aubjeoted to prolonged inter
r ogations through the night of the 15th Deceaber , but thia
does not jU8tit'y / •••••••• •• ••• • •
•
•
•
•
- 50)4- Judgment.
doea Dot 3uetify tho inference that interragationa of thia
eort are reaorted to B8 a cotter ot routine. there is
direct evidence that in the caee of accused Nos. 1 and 6
the interrogations were conducted to obtain inforlll8.tion
about Ill1 expected criaie on the 16th December, and that we.e
prObBbl:r the reason in the c&ee of accuaed No.8 too.
Dreyer, Drielll8yer and de lock admitted that prolonged interro
gations are resorted to when in their opinion circucatanqea
such as the urgency and eeriouaneu of a situation justify
that cours. , but it is clear from the evidenca ot theae &n~
other pollce witnesses that interrogations of this n:lture are
exceptional •
the defence.
Barney Dladl.a was ca1led 8e a wi tnese tor
He expreased his viel'S on trade unioni8111 and
described bis activities on bebelt of block ~orkers during
hie period of office as a cOWlc1l10r in the Xwa Zulu Govern-
c.ent from 1970 to 1974. On various occasiooa be met and
bad diacu.eaiona with repreaentatives ot tbe Bri tisb Trode
Union Council (T.O . C.), tho International. Confederation of
Pree trade Onions (I.C .F.T.O. ) and SACTU both bere and _
broad . Among tha mora significant of theae diecussions were
those he had wi tb Andre~ Ka Uembo of the I. C.F. T. U. e.ad Mark
Shope (General Secretary ot SAC'l'U st:ltioMd in Luaaka) while
be waa on & trip abroad in December 1913. X:lilecbo gan bicI
to underetand tbtlt the I.C.P.T.D. ~ould l18eiat not only with
the organie&tion ot black trade unions in South Africa but
oJ.80 wi th tbe trtlinina of trGde union ottlc1cJ.a in neigh-
bouring st;:1tea / •••. • •• •••••••• •••
(10
(20
- 5035- Judgment.
PMe 317 .
ne1ghbourin.g atntea , and be euggeated to Xailembo that they
He organ.iaa a aea.1..nar in one of the neighbouring et&tee .
diecusu4 this propoaal wi th Shope trho wna eothueioatic
about it end auaseated that it would be eoaier for SAC'rU to
undertake the training of the trade union officiala. Shope
gave b.iJ::r. 8leX>O towards the expenses ot the Durban trade unions ,
whioh a.c.ount he duly handed over to the ropresentatives ot
the trade uniona on his return to Durban . He diecuued the
proposal for 8 eeminar and courses in trade unioniatll wi tb
certain trade unioniats in Durb.:l.n, including Nxase.na , and be
bad corrsepondence about these matters and the financ1n& ot
loosl trade unions wi tb Shope , Kailembo and one Feder eon ot
the I.C.P.T. O. Durin& Karch '974 he undertook a trip over-
eeas at the eXp8Me of the I.e.l.T.O., in the course of Which
he agreed with I . C.l . T. O. officials that they would finance the
tr~portntion of trainees from South Africa to neighbouring
states and provide the necessary pereonnel t o train tbem. He
returned from this trip wi th an amount ot aoo which be dis_
tributed to the I.I.E. (Rl089 .77) and the Durban trade unions
(8622 . 73). The proposale for a semi.ne.r and trade union
cQUraes in neighbouring statee oeoe to cought because none
ot the delegatee or cendidates seleoted was granted a pnas_
port or travel documents . Dladla couJ.d only remember two ot
the delegates selected for tbe proposed secinar, nneely Joyce
Gumede who W3S secretory ot the Textile Workers' Union and
Ai pheus Jltetwa , aecretary of the Metal. and Al.l.ied Workers'
Union . Accord1.ng to Dladlo the training ot trade union
ofticials could not / •••••••• .• ••
•
• (10
• (20
•
- 5036- Judgment .
Page 318 .
otficiale could not be undertaken in South Africa , the main
resaon tor this being hllr/ aeament by the police . In addition,
inetitutiona such aa the I . I.E . ~re ahort ot funds and clase~
room accommodation and the I.I.E . peraoMel lacked proper
training themselves .
DIadlc. confirned tb3t he was the main speaker
at a meeting held on a Sunday in January 1974, that Nxasana
acted as his interpreter on tbnt OCC!l8ion , and that he mde an
announcement about C. B. S . llilakhatini . He said that Jle.k.batini
aeked hi.m to go to his house to mee t a politician who waa an
exile . When Makh.o.tin1. refused to Qake an appoin tment for this
man to meet him at hia otfice, or to say ",,"0 he waa or where
be came from , malUa becnme aUSpiciOUS aru1 cade an antlOW1Qe .. h
ment about the Q!l.tter, saying that he thOl.l8ht Maliatini waa
working wi tb the Speci:!.l Branch and trying to trap him .
Although madla was not an apresaiva witness
we have no reason to doubt thllt hie evidence was eubatant1ally
'roe . Ita va1ue is limited, but it does tend to support the
other detenoe evidence about the necessity for training trnde
unionists abroad and the fact thnt SACru abroad was prep3.red
to provide and finance sucb trninins . IDadln ' s evidence
that he discussed these m::lttere wi th Shope in Dec:ecber 1973
ties i.n with the evidence of accused No . 1 tbat Jlabhida ' a tirst
letter (dcLted Apri.l 1975) atated that wben maills "&8 abroad
they had been in contact witb him about the revival of SACTU .
The evidence ot the next detence witne8e ,
Selby Msieong , need not be recounted in detail beduse most
ot it was I ... ........... . ....... .
(10
(20
- 5037- Judgment.
Page 319.
of it was irrelevant. Thie old man was one of the found1ns
members ot the A.N.C. in 1912. He Wll.S interested 1n the
problems of bl~ek workers end was actively involved in their
struggle over the years . Prom 1940 he was a court messenser
in Pietermnritzburg. At tMt eto.ge he was alBO n member of
an Advisory Board for Edend:::J.e ., and the secretary ot the
A. N. C. for the Provinoe of Nat.:ll. Accused No . 1 used to
discuss trade Wl10n matters with h.1m and he allowed aocused
No . 1 the use of his ofrics for tr:lde union work. »uri"" 1975 accused No . 1 epoke to him about a memorial ceremony
tor the late Chief Luthu.ll, but he could not recal.l any
po.rticu.lar discussion wbich they eight have had du.ri.Ag that
year about SACTU.
Aocused No . 2 testified thnt hs and Albert
Dhlomo hnd married sistere. At the beginn1.ng ot 1975 he
and his wife moved into Dhlomo' s house at Uml.azi. At the
beginning of AprU thnt yeo:r his wife ' s brother, Pious Jilek ..
hoba gave him on MOunt of R40 'l'lhich he hlld received trom
DhlCKIIO, and c mess[lge to the etreet thllt Dhlomo wanted accu.
88d No. 1 to get in touoh with him . Thus it came about th3t
cccu..eed No . 2 visited aecused No . 1 in April, passed on DhloDlo'a
message and learnt that a certain nurse (Oatherine Mkhize)
could Bct as their oourier it they wanted to write to Dhlomo.
Accussd t{o. 2 said that his wife wrote 8 letter to Dhlcmo
thnnlcing him for ths R40, statin,s: how tbey had used the money
to fix certain things in the house, reminding him ot a pre-
mise that he would oontribute towards the cost of erecting
a fence on the / ••••••••••• • ••
•
• (10
• (20
•
- 5038- Judgment .
Page 320.
c fence on the property , requesting him to transfer the prOo>
perty to accused No.2 , l1lld dec.l.in8 wi th other fatn1.ly matters .
This was the letter which accused No . 2 lett wi th accused No .
1 during May 1975 . He confirmed the evidence ot accused No .
cbout the etamJ)i.nB and addressing of the letter .
standing thAt he perjured hi1D8ell in other respects (as wUl.
lnter appear) we do not think that there are sufficient
grounds lor rejeoting the evidence of accused No . 2 that the
R40 was for domestic purposes IlIld the letter had nothing to
do with the A. N. C. or o..o.y eubvereive activities .
Aocused No.2 stated th:lt on the oooasion of
his visit to aocused No . 1 in April they disoussed trade
union activities in Durban, th:lt he expressed bis d198atie~
faction wi th the way in whicb Nxaeana and otbers were conduc
ting thess activities , and that aecused No. 1 suggested that
he see Nxasana about soundi..ng out the opinion ot the workers
on whether SACTU sbould be revived. Accused Noe. 1 and 2
were in eereement about the need to revive SACTU , and aocused
( 10
No . 2 considered tbnt the matter was quite urgent . He 8CCor
dio,gly discussed the suggestion with Nxa.sana in April, and they (20
allegedly agreed that belore Qoamwdcating wi th the factory
workers or their representatives they should first ascertain
the views ot certtdn old SACTU members, MQely Zuma, Judson
Khuzwnyo, Leonard llldinei and Russell Maphangn . It "88 agreed
that these peopJ.e wou.ld be invited to a meeting at Nxaanba' s
house on Co certai.n Sunday in April , the arrangement being the.t
ll.ccused No.2 would get in touch with lIIapha.nga and Nxasane
would invite / • • •• •• • •• •• • ••• •• •
o
o
o
o
- 5039- Judgment.
Page 321 .
woul. d i nvite thiI othere. However , on tbe appointed d.e.y only
accused No , 2, Zuma and Nxa.eana attended the meeting . That,
accordins to accused No . 2, was how the meetill6 at Nxasana's
house came about. He denied Nxasnna ' s evidence to the etfeot
that this meeting was celled to diaC\Ul8 the revival. of the
A. N. C., following upon lL meBS~ge in that connection which be
(acoused No.2) had received froc Dhlooo . He dsnied that the
!:leeting was beld in the bedroom , that Mllpbanga attended it,
or that there 'M!l.8 ~ discussion about the A. N.C . , the Mandelo.
Plan , the formation of cel~8 or sending reoruits to Mocambique . (10
According to acc\Uled No . 2 the sole topic of discussion wna
the revivoJ. of SA.CTU . Nxasana oppoaed the suagestion , his
view being that 0. revival. of SAC'l'U would result in the crushing
of the unions with which he was involved. Althoueh Zumn and
accused No.2 favoured a revival of SACTU it wns deoided , in
view of Nxaeana ' s opposition , to do nothing about the .m:ltter .
This was because Nxasana 'If8.8 closest to the workers , the
person upon whom they would have to rely in bringing about a
revival .
Accused No.2 denied Nxasana'a evidence that
they ce t two weeks latsr at Centrel Oourt and he snquired
wbat progress Nxasana had cade with the foreation of cel1e .
Re denied suggeetinb to Nxa.e"~ft ,--, h. cl ~ ... _ ,... :run 888es for shOp
stewards but ndm.i tted sugg9st1.ng ot one at~ that be join
the Umlazi Resident" Assooiation, and stating on another
Occasion that the youth should be enoouraged to join youth
clubs . These topics slmply cropped up in the couree of
conversation / •••••••••••••••
(20
•
•
•
•
-5040- Judgment.
:raee 322.
a OllV9rsation, and he made hie suggestions for reasons quite
Wlconnected with the affaire of the A.N.C . He admitted
meetinG Nxasana and Zumn occasionally at the Beren Road
e tation but cl aioed that theee were chance oeetings between
persons catching trains at the same station. The mee tinge
were never pre-errenged and NxaBana,t e version of their dis_
cussions at the station was comPletely false .
According to accused No . 2 he visited accu.
sed No . 1 in July 1975 beoause one Hemson hO.d esked him to
deliver a certa.1.n dooument to accused No.1 . At toot stage
acouaed No . 2 wos asSisting Hemson witb the preparation of
a thesis on Natal Trade unions , and Hecaon wanted accuaed
No. 1 to cOClDent on the oontents of the document which accu..
sed. No . 2 deliver ed JDr h1l:I. It is appropriate to mention
at this stage that during 1975 accused lio . 2 was working
put- time at Central Court as a bookkeeper for a trade Wlion,
and it W8B there tb:lt be met Nxa.e8ll.a. end Hemson . He bad in
the past been the seoretary of the RnU~ and Harbour Work
ers' Onion , and on his own ndmiseion he 1'I'QS elso a cec.ber
of the A. N. C. froe. 1959 to 1960 . Reverting to his narrative
of the relevant events , be snid that on the occasion ~en
he deliwred 8emson's dooument be told accused No .1 about
tbe £lesting at Nxn..sana' s place in April and of his disagree_
ment nth Nxasnna ooncerning the revival. of SACTU . He
oonfirmed that accused No.1 sU6Sgeted thnt he and Nxasana cOCle
and discua& their d,1eB&Tse.cent with hie on 10th August. He
likewise confirmed accused ~o. 1'8 account of what was said on
this occaaioQ / •• • •• •• • •• •••• •• . •
( 10
(20
o
o
D
this occll8ion about the letter dealing wi tb the Lutbul.! COllZl]8.e
lIIorntioQ service. However, on his evidence it WB8 not on thie
occnaioQ th4t accused No.1 told him about the oorrespondence
with lfabhida.
Thareatter accused No. 2 obUined the oommem
oration aervice letter {roc Zuma and got Nxaae.na to malee tour
copies ot it, but on hill evidence there 1IB8 no question ot
an.Y meeting wi th Nxasan& and Z\U:l8 at the Berea Road atntion to
discuse ita contents. He banded the four copies of the letter
to Zume. , 880800, Gladys JlDJ'lZi and Archie Gw:le4e respectively,
and on ?ridlly, the 8th Auguat he told NXl1Sana tlClt he would
not be able to attend tile l118eting at acoused No. ". place
at'ter &11, the reuon beins that be bad to work that weekend
on certru.n trlllUllationa tor Hamaon . In filet he cUd Dot
nttend the meeting on 10th Augu..st, 1975. .ll thou,gb he waa
interested to know the outc0Q8 of the discussion at the meet
ing be UlBde n o 81l1luirl about 1 t until he vial ted Bocuaed No . 1
again at the begi.J\n.in& ot September . The reaeon he o.dvo.nced
tor not hnvi.rla: asked Nxasnnn about the outcome ot the meeting
"68 that beoauee ot their disagreement NX8lI8DD. aight oot have (20
given h.i..m a satiataotory report . He e t8 tad in bie evidence_
in~h1et that nccu.aed 1'1'0 . 1 intoroed him that thero h44 been
no time to discuss the distl.greecent betTleeo NXlIJIontI. and hiJDsel.1' ,
an.d told him about a letter trOJ:! Mabhida conoern1n.s the revi
val ot SACTO , but said oothiOS else about what hnd occurred
at the meeting . He contradicted this under oross-eX4Qination,
ettlting that accused No.1 o.1eo told hie about the discussion
on the Luthuli I .... .... .. . .. .
•
•
•
•
Pw 324 .
on the Luthuli oOClClemoration service, the election ot Arcbie
Guaede and Nxaae.nn t o the ooa:u. ttee charged w.:I. th arraaging
the servioe , and the decieion to reorW. t Ilnd send bO)'1l
abroad tor trode union training.
Aocordin& to accused No.2 the only t1..me that
Nxa.oo.na told hi.Ia. an.rthing about on.y t;rip to &!Ipangen1 'fII88 an
oco88ion in about the last week ot Ootober or first week ot
November 1975. when they o81J6ht a train nt "s!zeni atation
and trsvelled togftther to Oola.z1. On this occasion Nxaaana
el.legedJ.y told accuaed No . 2 that he bnd gone to Empe.ngiln!
with ZUQlI. and llCoused No.6 to see Riot Idkwanazi and get him
to help with the revival ot SACTO in that area. Accused
No . 2 denied Nxna8D.!l ' a evidence about the ceeting at Bereo
Road atation after the first trip t o ECpang9nt . There was
no lIucb meeting and Nxaao.na never JllLde B.'l,Y report to him
about the first trip .
PrOm the toregoing aUlllOory of accused No. 2' 8
evidence on the mari ts of the oa.ee aa:ru.nst him , i t appe~
that the oruoial questions ore the purpose for Which the
April ceeting at Nxaaana's houss wns olll.1ed ond the metters
"hich were diecussed at that llleot1ag. On the one hnDd we
bnve the evidence ot Nxaaana that the meetina wa.a arranged to
d.1.oUlle tho roviYDl. or the A.N.C •• Md that this was in tact
the aain topic dieoussed althoUgh there ~ elso eOQe disous_
eion about a revival. ot SAcrO. On the other hand we have
the versi on of BCcused No . 2 that the 801e reason tor calling
the meet1ag wna to tl.8oartaio the visl'fS ot certe1.n old SACTO
lllecberll about I .... .. . .... .. .
(10
(20
CI
o
o
o
P!B! 325.
me1:l~r8 about a revival at that orgtl.l1iae.tion, and that notbiJla:
liIoreover, according to e.ccwsed Ko. 2
the aaetine: Ml8 orra.nged lIB a cOll8eQ.U8nca ot the suggestion
which accused Ho . 1 made to him in AprU, not beC8.wsa ot 0
mea.e.ge trom Dhlomo concerning the revivol. ot tha A. N. C.
Under these circu.csta.ncea it 18 not wi thout eignificance tbnt
accused No. 1 cada no Clention ot lUl¥ disouseion about trade
v.niona or Hxaso.na's aotivitiea or any auggestiona about a re
vival at SACTU on th8 occaaion when accuaed No.2 visited him
in April . On n tair rending ot accWled No.1' a evidence 1 t
was lIben accused No.2 visited him in July that they bIld their
tirat discuseion about the reviVDl. at SAcrO and a diaagreement
in that connection between accused No . 2 and NX88IL1l1l. It the
meeting at Nxosnna'a house oroae out ot a suggestion concerning
the revival. at SACTU which nccueed No.1 mode in AprU it seees
incredible that when accused No . 2 visited accused No .1 agai.n
(10
in Mn;r he would Mve railed to mention the tact tht!:t the mee'ti.De:
had taken place and the outoome ot the 41soussion. On hie
own admission, however , tba mo.tter was not evan mentioned on
the oco88ion ot thia viait in. May, his explon.ation heine that (20
there lV38 lDB~ticient tUMI wi thin which to do so. AcceptiDa
that be 'fIISS preaaed tor tiJ:le , that eight have ruled out a
disoussion but it oould not have prevented him rrom brian,.
telllng accused No. 1 what had transpired. If otwi the tanding
that be coneidered the matter to be Q.u.i.te urgent he would
bave the Court believe toot he waited eOlll8 three QontbS betore
reporting to accuaad No. 1 in July on wbat he had dona puraua.c.t
to the!.r / ••••••••••••••••••
•
•
•
•
lIage 326.
to their dieoussion 1.n April. .
Counsel ror the accused laid great ea-eas on
t he improbability that Nxnaann, opposed sa he was to any eort
ot adventurillm 'fIIhich !:light ham the trade union movement .
would have participated 1.0 arre.ngins 11 meetinB to d.iaoUIIs the
revival or the A.N . C. 1'hllt apparent improbability III\l8t be
given due weight but ita eigntficance in the overal1 picture
18 1I11ght. It 1a equnlly iClprobablll tha.t he would h:lva been
1.oterellted in convening 1.1 ceeting to diecUBs the revival. or
SACTO , because he reared thot such 0. revival. would be tatel.
f or hie tnde unions. It el.eo eeeme improbable that havi..nB
expreeud his oppollit10n to the revival. or SACTtJ NXMBll8
would have underto.k.en the two tripe to Eopll'lgeni tor that very
purpo8e , although the improbability is leeeened by the evidence
tbnt tha Cleeting on 10th August reached a comprooi.lle whereby
the reviVlll. WIllI to go ahead but lI'xnaana' s "territory" ot
Durban and Pinetown was to be excluded theretrom tor tho time
Accused No . 2 ssve contradictory and tborouahly un-
8atietnctory _vidence about bill reaotion to the eJ.lesed
information thnt NXQ.8&na had Sona to au Riot Mkwnnnzi nbout
the r evival. of SACTD . Wban tirst Q.uee t10nad about the matter
he eaid that he W8.8 not aurprieed at NX88().llll'S apparent e}uul,se
or heart in resnrd to SACTD , that be just accepted wbat
H~ana told him about the EmPQl'l6eni trip end did not enquire
turther. In anllwer to further qusstiona, however , be cJ.aimad
that he did not enquin into the matter becsuse he knew that
Irxaa0.n.3 'fCB opposed to the revival. ot SACTU Md thererore did
not believe / ••••• •••••••••
( 10
(20
o
o
o
- 5045- Judgment .
PM! 321.
not believe his story tb4t they ho.d gone to Eapa.ngttni . let
aJ.on& t hat they bad gone there to aee Hiot MkwanaZi in conne_
cttan with the ravivnl of SAC'1"U . He sought to explain thi'
extro.ordinary scepticisc by uyi.n.g that their disagnecent
about the revival. of 3AC'l'U had led hi.cI to doub't \he truth of
Our general. comments on the
Cl3Nler in "hioh aecuaed No . 2 gnve hie evidence will be reo
orded IFlter , but we cantion at tb.111 lItB6e that When tryill8 to
explain hie " notion to what Nxa.ee.na allegedly 1I01d him about
the Bmpo.ngeni trip he was obvioualy lying. He W68 IJ'inB on
a maw r ial point , beoauee the State evidence i8 that the
Empangeni tripe MIre oonoerned with the activitieB of the A. N.C.
not SAC'l'D , and N)ClI.IIanD. dul.y reported on thelll to accWled No . 2.
In cOllBiderill6 the purpose for whioh the
AJlril llleeting at Nxe.lulna ' a bouse was col.led it is relevant to
know eooething about thc pJnJonal hietory of the ao-<:.alled
"old SACttJ Clelllbers" whoe NxeaDAB. end aooused No . 2 wanted to
attend it. Accu..ae4 No . 2 told the Court tbat he did not leno"
bera of the A. N.C . However , t\ltO of these oen were o,:!,lled. ea
defence wi tMues and furnished a good deal. of relevant info","
.QIltion . Judeon Xhu%wsyo s.aid that he wna a lIIelllber of the
A. N. C. trom 1956 to 1960 but had never beloneed to IS trads
Durill8 196) be Ml8 oonvicted o.n n charge. of fw-ther-
i n.g the o.ima ot the A. N. C. by attempting to go abroad for
lIIilitary tra1nin.G , nod received n sentence of 10 yenra ' impri-
SODment whioh he lIerved on Hobben Ieln.nd. Zuca was convicted
ot the eame / •• •• • •••• • • •• • • •• •
( 10
(20
•
•
•
•
- 5046- Jud~en~ .
Page 328 .
of the 8.:\Ce otlence in tho eeee trial. M Khuzwayo and received
the lIa::Ie eentence . They were released trOlD pri80n on 29th
Dececber 1973. Ru .... ll lIaphansn ndoHtod tMt in 1965 he
WG.9 eentenced to seven yeare ' icprisonoent follOWing upon
his conviction on 8 charge of con~raven1ng eeo . 11(b)ter of
Ac~ 44 of 1950 , the 3lleg.ltion beinB th:lt he had t...'\ken etepe
to Wldergo cdlit3ry tr::.ining abro=ld . Thill eentence was
added to one of two yearll Whioh he had Blready received t or
leavillG the Republic illegally, and he 1110.8 also sent to May
Bobben Ielo.nd . He tme released from prison in .. 1972 and res-
trictod tcr tho next two yenrs to the dietrict ot Um.zint o.
He said that for a ,period ot tlbout 8 yoar, up to the time he
10llt his job at n oatch f:lctory in Novecber 1962, he 'IftUI /l
member ot the Tiober Workere ' Union nffUintod to SACTU. He
did not belong to BAY' trade union tor the next twelve yeara ,
but joined thtl Transport and General. Workers ' Union towards the
end of 1974 . It is not clenr how lona: that leated , but When
he GBve evidence on 3rd Pebruary 1977 he no longer belonged
to any trade union. In ~ evont he b:lrdly fi ta the desorl-
ption of an "Old SACTU cambar" Wholle opinion 1n regard to ths
revival of that organiention ouBht to be obtained , end it 1s
very difficul t to believe thnt RCcuoed lio . 2 contecplated
inviting him to the lIIeeting for tbat purpose . AccordirlB to
Mtlphange. he did not know occua.d No.2 before servin& his
prison sentenc. , /lnd h:ld no contact with him betore Septecber
1975 . Of course Khuzwnyo' s admission thnt he never belonged
to a trade union utterly refutes the evidence of accused No . 2
about invi tiag / • •• • •• •. • • •• • • , .
( 10
(20
0
o
o
o
- 5047- Judgcant.
ies! J?::!
about invi tins b1l:I to the ceetillB to expr9u bie opinion .. old eecber ot SACTU. On the other hand , if the purpoee or the meeting wna the revival. ot the A. N. C. wi th a view to
haviDB terrorista trtrlllSd in "oc~biqua, lrbuzwtlYo . Zuma 8.Ild
Ms~a clearly h:ld excellent credentials tor being invited
t o pa.rtioipnte . Jl!apb3nga pretended tbat be was nevor a
oember or lIupporter ot tbe A.N.C . , but that was patently
on
He claimed to b=t.ve known NJtaBan& eince 1962, thereby
deup.ng Nxas:lllll ' e evidence th:lt they were etrnne:ers betore
t he tleeting in AprU 1975. He also denied t~t he attended
the moeting . Ae will appenr When \'16 deal more tully wi th
Mapbansa' s evidence, he was auch s bare - faced liar th:t theBe
dec.1al.s of his are ~rthl.eBo. £s he heB not been cb.o.rged it
ill really imtInterial whether he attended the meeting or not,
but hie evidence neither c;stll doubt on Nxnaana ' e credibility
nor strengthens the cue tor accused No.2 . We ~ tb.ink of
no plflusible reMon why llxosnna ahoul.d folsely state that
Ma.pba.nga attended the meeting if in tact he wne not pre.ent.
(10
Accused No. 2 was det:l.ined during the ~ternoon
of the 5th Dcceober 1975 nnd taken to the ottices of the secu. (20
rity police in Pisher Street, Durban . His evidenoe ie
broadly to the etfect that attar Boce interrogtJ.tion he W08
iU- tre.3ted ODd brutally DSssulted by "'/0 . V"ln der W .. thuizen
The .:3SBsul t cOCo
cenced after Lieut . Taylor ~d put in n briof appearance to
iss\l8 II threat that the !!Ccused \II'Ould be mo.de to talJc it lett
in his hll.nds. Accused No.2 ML!I forced to strip and do
certain PhYSical / • ••• . ••••••••
•
•
•
•
- 5048- JudgJnent.
Pose JJO.
cert=:in phyaical. exercisee until he oollopeed, after which
the f our pollcecen fOn:led a. circle around b1l:I and proceedod
to punch and lc1ck hil:!. He MUI naked a:u1 bleeding f r om the
mouth when Col . SteenJctu:lp entered nnd epoke to him. Col.
Steenlt8.CIp warned b1l:I to tell hill interrogatore 'lllhnt they
wanted to know , 0.04 threaterlad to turn them loose on him it he
failed to do so . Some time atter Steenknmp left the toem the
Ilseaul t WQ8 reoomr:r.enced . As acoused No. 2 WB8 crying out a
duster WD8 stu.tfed into his .c.outh and he wn.a throttJ.ed or
emothered with 0 amell rug or piece of blanket. He 10llt
ooneciouanees . When he regained consciousness he discove r ed
that his bowels bad worked, and he was forced to clean up the
mesa . Theree:tter he wtl9 allowed to dreas and the interro-
got10n continued . H1e interrogator was .,,/0 . van dar Wosthu1:r:an,
directed or aaeisted fron ti.t:lo to time by Lieut.McDuling . At
about 3 . 4' s.m. the interrogtltion ceo.esd and he WBS taken to
the U.c.bUo police station whore he wn.s locked in a cell. In
hiB ev1.dence- in-ehiof he said "at that time I oould not walJc
properly and my whole body w:;J.8 covered in blood and olso my
.tIouth" • This wna a grOBS e:magoration, tor it ecersed under
cross-eltllCi.:nation that ter from tho entire body being covered
with blood, he only had spote of blood on that portion of hie
shirt cover1.ng the tront ot hie chest. He could not ft8lk
properly because hs though~ tMt a leg IIIWIcle bad been torn
or otherwiae injured, n.nd his enrdrum had aleo been injured in
the course ot the assault . He was never R8ssul ted &gain atter
leavillB the :?isher Street offices that cornina . He WQ.8
interrogated / • • • • •• • •• • ••••• ••
(20
.
I
•
o
- 5049- JUdpent.
fen! 331.
interrosnted 8a.ch 1IIOekdny until tho 15th Deoecber, atter 1dlich
he bIld n br enJc until 5th or 6th Jnnuo.ry whUe ~ dar Weathuizen
wna on letlve .. Thereo1ter the interrogation oontinued, with
Villi dar Weetbuizen and 1IleDuJ.in,s: tryin& to perau..<uie bia t o II~
things which were untrue. One method of pers\la81on used by
IIIcDulins wns to threa.ten to dotllin biB wife. I t ill not c1a3.r
fr om hie evidence hoiit' long the Intorro~ntion contiDU8d~ He
said that be '/9011 moved from Oobilo to the Point police celle
in Mnrch, 3lld froCl there to Wentworth in the adddl.e of April.
Except for when he wn.a interrosnted be was kept in 80li tary
oontineaent W\t11 hie oppeerance in Court , end we were given a
detailed description of the conditions under whioh he WIl8 kapt
end the indifference wi tb which be 'f\O.8 treated, upccially 'l'lhen
he was suffari..n£: froo toothache. He Baid t~t during his
first nisht a.t Wentworth CoL Steenk.:l.r:lp visited hie cell and
tried to persuade hie. to give evidence tor the Stato . Hie selt-
evidence ot thia particular conversetion weB . oontradictory,
improbable and uns~ti8fnctory .
ComQBnting on accused No . 2 ' a account of hie
experiences nt the hnnds of the police, Dr. Weat stilted !!!!!!:.
~ tbnt forcing n pereon to renove bis clothes producea a
nnrked degree of hucili3tion, especi=.lly if he 18 in the
presence of Q sroup of people. Wi th reference to the epiaode
when accused No . 2 all.egedly lost consciousness , Dr. West eJ;loo
plo..i.ned that tba bloc.d supply to the brain '1'188 cut ott by c~
pression ot tho carotid artery ond the IlCcused suffered II.
seizure or convulsion . The reas on for cnusing n prisoner
to haw n / ••••••..•.•.••• . ••••
(10
(20
•
•
•
•
- 5050- Judgment .
PM! 332.
to have a seb\U'8 (or "do tho ohicken" all 1. t i8 oalbd in
acae pOlice quarters which Dr. Weet did not identity) ia that
f or sooe tiQO theraatter hie mental stats ie such tMt he ie
very likely t o be subdued, compll611t , su.ggestible and seaU,.
h!lJldlsd .
The toregotn.s account of the nuaul ta alleg
edly committed on acoused Ho . 2 differ. !a!2 90elo from the
o.l.legationa in EXhibit "Y" _ Ul.e particulars of olaim admit
tedly del1verad on his inatructiollS in an acti on for damages
ari_ins out of the eame Il8sauJ. te . Bxhibit "Y" oontains
aliesatiollll t o the etteot that he wall luteauJ.ted on a number of
ocoaaiona bet'l'lElen 5th Deceaber 1915 Md 14th Mny 1976 , at
Uobilo o.nd/or Point nnd/or 'ifsnttoJorth p olice atationa, by per-
8 0 1lS unknown t o him. In the absence ot a saUefl!\.Ctory
explanation the inference iIt 1.nescapnble thnt acc\UJ8J1 Ho. 2
t old 11 completely different story when inatructill6 his attor-
neys f or the purposea o f the civil aotion. 4s t o thnt, .-.e
hnve the evideo.ce of Mr. 4brnhnm t o the etrec t that wben be
( 10
visited aecWled Noe . 2 , J , 4 , 5, 9 and 10 at the gaol on 11th
November 1976 tor the purpose of obt:J.inine their .ignllturea to (20
pOMra of c.ttorney ba sboWlld each of them Ul.e oomb1nod
and particul:U-a ot clai1ll 'Which was to be taaued on hia
a\.lallOns
"". behalt , ..
eeob o f them pointed out that eertc.il1 nl.legat1ona in bis po.r..
ticulars of claim were incorrect. Abrll.btLm is only the 10cal.
c orre.pendent of the Durbl:l.n attorneys PiliOJ'" & CocpM.y Who nat
f or these accWled in tbo civil nctiona, and he bnd not. bean
concerned tri. tb taJcine instructiona for the purpose of drafting
the particu1l!lra / • •• ••••••••.•.••
•
-5051- Judpent.
P8,!Ij! lB.
tbe porticw.ara of cle.1c.. He noted aome of tbe reQuired
1 (Exhibit "QQ"l but aoon reel.i .. d BC8ndcen'tlJ on &n enw ope
t or him to deal 1'1 th, thnt tbe thGt they were too nw::&erous
to oonsult ~-~ ... tdth their cliente Durban attorneys would bove ~
and tlQend the perUcule.ra of clo.im acoordi..D.&ly . He 'therefore
c:lused the powsrs of attorney to be executed a.od lett the gnal
to report to Messrs . Naidoo and Langn of P1l.l.ay &. Company 'llhc
were waiting for him outside . They decided to iesue and serve
the II\llII:1OM 1a.medintel,. and attend to the acen40ente la'ter ,
beonuse they thought tho. t the actions would beoome prescribed
if they did not adopt this courae. However, no noticee of
aoend..llant bad been delivered by the til:1e Abr-e.hn::l gave evi
dence on the 15th Fobruory 1977 . All that Abrahnl:l ' s evidence provee ie that
oertnin o.lleglltions in the partioulo.re of claim are 1.nconeia.
tent with wbn.t the plaintiff accused had to eay about the
naee.ulte, etc. .. ot tho 11th November 1976. It doee not
aven purport to explo.in how the inconsistent al.legationa Ctu::I8
to be incorporated in the particulars of cla:iJ:l in the first
plocs. The obvious person to give that explenation 18 tho
attorney who oonsulted nnd took instructions frOD the plaintiff
o.oaused for the purpose of in8titutins the actions, instructed
counsel tor purpoee of draft1.ng or .. ttl.1.ng the ,pnrticuln.r8
of claUl. and eigned the particulars of cla.lal aftar they bad
been drafted and prepered for iaeU8. The evidence of that
peraon (or persona it more than OnD was involved) is conspic
uous by its obeence .
Apl'U't froc I.······ ......... .
•
• (1
• (2
•
- 5052- Judgment.
Page H4 •
.lpart t r CCl being inconaiatent wi th his po.r.
ticulara ot cia1J:l t he evidence of accused No . 2 ia re f uted in
a cataria! respeot by that of Mr. Potgieter , the Deputy Cb1ef
tlSngie trote of Durban , who vios.ted b1.c:I in privnts pursuant to
eec . 6(7) of Act 83 of 1967 on 10th DecOQber 1975 , 14th Jan-
uar1, 4th Pobruory and 18th February 1976 . Accused !'fo . 2
cle1.med th!lt when the o:lgi.lltr:lte visited him on Wedne s day ,
the 10th December , 1975 he cooplatned about the injury to hie
ear and told him th::. t the police hIld oo.uaed it , but the magis
trate _aid th!1t he WBlI not conceroad tdth that 8l1sgation.
Mr. Potgietor produced the 1I%'i tteo note which he cade and
accused No.2 eigood ot the tice of the vieit on 10th Decem
ber , refiecting that the nccusod had no coopl~1nte or r equeets .
Ho denied that occused No . 2 IIIllde Illl¥ complc.inte to hie about
an injury to the IIDr or any S8ec.ul t . Wa bn.ve no doubt tl:u:tt
if OIlY auch complnint bod baen aw.da !dr . Potgiater would MW
Clade a nota of 1 t.
no such COOplllint •
He code no .uch note because there was
"e are convinced thnt aocuaed No . 2
11ed about the C'IIltter because be realised that the obsence of
such a coaploint costa serious doubt Oil his story thnt hs 'IIIlI.B
oaeoultsd.
Mr . Potgieter testified ~t accused No . 2
had no complo.1nts or reqUBets on the 14th J:lmJAry 1976 , but
that on the 4th Pebruary he said "I 40 not get enough food
o.t tiaee and o.eil:: th:lt the ration be incrGaeod" . The note of
the villit on the 18th February reflects no oocpla1nte but one
requost c.a follows: .. I haw toothache and request 1;h:lt a
dentiat eaea I . . . .... .. . . ... .
(10
(20
•
•
•
-5053- Judgment.
denti8t 8ee8 me". Other al.gi8'tl'at;es who vist ted accused
No.2 pursuant to 800. 6(7) were Mr .. ltDoetze on the 30th
Deeeober 1975, and l3r. Stn.lldg on 'the 4th lInrch 1976. Both
According to lIr. EnoetEe
accused Ko. 2 bad DO complAints or request. on the 30th Dec-
ecber , 8.rld t~t W88 not cballeneed. Mr. Struwig teetified
tbat on the 4th March accused No.2 complained ot earnehe
and said thtlt he hrld req\lOeted medical. attention the previoua
dlly but tho dootor bad not coce to eee him.
Wi th regard to the complaint ot toothaohe ,
aooused ~o. 2 teetitied that this bad etarted On a oertain
'thursday and he had complained about it that day to a police_
man with a DADe like Spence. Nothing was done about it
until Stlturd:ly ot the same week wben tbe stotion eomma.nder
iMpeeted the eells, with Spence i.n ::lttendO.nee . On learning
ot tbe oOQplaint the etction eomnnder asked Spence what be
had done about it and Spence replied tb4t be had reported it
to the Special Brnnch who told him thnt it we.a Daneenae.
AccordLng to QCcuaed No. 2 the etation cOCQnnder was S1Cpn.
thetic but exploJ..ned tb:1t be hI1d no autbori ty to toll:e hiJ:I to
(l aentiet. Accused No. 2 wna lett to sut1'er t ooth.o.che until
the maeistrato visited core than a week l.o.ter, nnd it '!I'M
only some time o1'ter hie cOtiplo.int t o the ao.g::ietr:lte th:l.t be
reooived the nocoseary dental trenUDent . According to tho
acoused bo htla euttered constant pain tor eome three weeks
eince tbe t ootbe.cbe etarted, and bad been driven to oontemplate
a bUJlBer strike aa a meo.na of getting the nocee8ary attention ..
When he S8W / •••••••••••••••••••
•
• (10
• (20
•
- 5054-- Judgml!D.t.
Page 336.
When be saw t he mngistr.:lte he tQld h1.m t bnt be had ol..rend7
cooplai.nad to the police about 'the t ootbcebe and that the
5peoi::IJ. IIrancb bad enid th.:lt be W3II tal.k:1ng nonaenae.
It that stor), i ll tNe it s~ows a sbocki.ns
d.egree ot an.lIous inditterence the au!terint ot 0. bel pless
priaoner. However , there ill a good deal. ot aooeptable evi-
dence to ref'Ute it . FirsUy, Mr. Potgieter denied that
accusea No . 2 t old h1m that bo bad already oocplained to the
police abOQt hie t oothache. Socondly, tbare is the evidence
ot the Bt.:l.ti on ooall~der o.t Dmbilo , capt. Willis. He used
to oo.ke reguJ.ar :in8peotiona ot the oells , and bad co.a.suJ. ted
the ooourrence book at the station t o refreeb his memory
regarding tho relev:l.Ot dates . He said that it was on Saturday,
the 14tb Pebruary th:lt accused No.2 oOClpla.1ned to him ot
toothnche . Ho bad nO polioeman '0)' the MQe ot Spence under
hie COIIC:lJld, 'out sc.1d tbnt there WCII a Canst. Spies who !:light
have acc ompo.n1ed bio when be vieited the cella on the 14th
7e'oruD.ry . He denied bowever th:lt ncaus.d No .. 2 told h.i..tl ot
any previous oocpla1.nt ot t oo thacbe to Spies or anyone elee.
Havine: received the c OQplnint be instructed the cbarge oUice
sergeo.nt to not11'y tbe seour! ty 9Olice . He ~ ebBent trom
the IIUltion on the 15th, 16th and 17th 'Pebruary but eaw aceu
sea Jio . 2 agoin on the 18th, probably betore t he mas1strate'e
When Willia Bew the Mcueed tb:lt day be
enquired about the t oothAche and W/l.8 told that it WQ.8 no longer
troubli.D.g him. He vieited the cells 08e.1D. on the 19th, 20th, <hr ••
21st o.nd 23rd lebruary. On the tirat"ot these occsaione
accused No. 2 / ••••• •• ••• .o.
(10
(20
o
t
" ...... Pa.p;e H7 .
QCcWled No 2 bn4 no cOQpl~te, but on the 23r4 PebrUar7 be
eaid t Mt he was auttering from toothacbe once more. He
thereupon telepboaad the 8ecurity pollce and they removed
the acoused for treatment thc.t enme dol' . Thi8 18 col1firmed
by the evidence of t.b.e diatrict aurgeon , Dr . B\lChon , who testi_
fied t~t on the 23rd Pebruary be tre~ted accu8ed No. 2 for
toothache by extractinB the remnins of a tooth froo the right
._ 1 f C pt WUlie tm8 tbnt of a u.pper jnlh Our ...... pree8 on ° a •
tboro\l8h gentl.8mIlll and n firSt clnss wi tne88. We have no
hee1tn'tion in accepting hie evidence o.nd rejecting what nccu.- (10
eed ~ 801d to the contrat'y. It ie etrange, of ccurse , that
on the 18th 'ebruary accused No. 2 told Willie tbnt the tooth.
aeha w:lS DO longer troubling hiD and then cade a cooplnint
of toothnche to the mngietrate, but .. do not conaidar that
this renecte o.dveraely on the credibUi ty of either Willis
or t be magiatrate . It ie olear from Willle t evidenoe that
the toothaohe 'fIB8 interat ttnnt, end .everal houre could ~V8
elapsed between his enquiry and tbe Cl8Bietrate'e visit.
Accused No . 2 stated that ba aaw the 41atrict
eurgeon ntter the cagiatrate ' 8 firet v.l.sit, Md told the die
trict eurgeOJ1 tbIlt his ear bnd been injured tdleD he WQI!I
Q8eaul.ted by the police. Dr. Buchan teet1fied that wben he
IInw aocWled No.2 tor the firet tiJ::Ie on the 10th l)ec8C1ber 1975
be wna cocpl.n1c.ing of a p.Unt'Ul. right oar end right eye . On
examining the accused Dr. BuchAn found that be hnd oonjunc
tivitis of the right eye nnd IlD il1feoted perforation ot the
right eardrum. There were no other cocplaints nnd 00 other
aigD!!l of / • •. ••••••••.. .. •••
(ro
•
•
•
•
a igl18 of 1n.jury on the Q.Ccuaed' e body . He tra~ted accuaed
No . 2 free time to tice tberentter 8.Od referred h10 t o an ear .
noee and throat epec1cJ.iet tor turther treatment ot the per-
foration ot the eardrum. He explained that the ,Perforation
could have reeulted trom either a middle~o.r il1fection or
trauca IlUCb as a bl.c..w OD th l ear . Tbe infection Whiob he
obeerved on the 10th Deceob< r could b:lve been 1D0re tMn t ive
daya old. He enid that tb~ Mcused al..moet certainly told
him that be b!l.d reoeived n bl.ow 00 tbe ear , bu;t did not
aotually recnll him eaying eo He did not reoal.l beiag told
o.n.yth1.n.g about an 88aault by the pollce . and enid that it MIB
u.nl..1iely tbnt acoWled No. 2 mer.tioned such an neenul. t with
r eference to hie ear . It W88 .1D.l.ikely beo=:.ua8 it was hie
pr&ctioe to ClDJte a note ot 8n:J loapl~int of asB:l.ul.t by the
police, and in tact be made no elch note . TbD poei tiOD , then.
is that acoused No . 2 probabl.y tt.ld the dietrict eurseon that
biS ear W8B injured 88 the result at a blow, but probnbll did
not flay that ha received the blow \OIben assaulted by the polioe.
Dr . Bucbsn'. evidence neither refutee nor 8upporta the .tory
(10
that accuaed No.2 wna 88saulted b) the pollce . (20
Lieut . -n.n der 'fier tbuizen and Lieut . )fcDuling
also gave evidence in rebuttal. ot '1iho a.llegnttoas that accused
1'1'0. 2 was ill-treated, as8sulted aad tbroatened dur1.ng hie int-
errogation. V&n. dar Weetbuizan wns with accuaed No . 2
throu,shout the interrogation and "ophntDlJ.y denied that the
aooused W88 aaeaulted or forced to etrip or do exereieee .
He aleo denied that Lieu.t . Tny'lor threatened acoUBed No.2 or
even spoke / .• • •• ••. . ..•••.••
.
()
o
o
-5057- Jud8=ent.
PM! 3)9.
.ven apoke to b1Jl in hia praeence, end turther denied ;:hat
Col. Staenlc:u:ip had M¥ conversation with the accueed tb:lt
awning. Both van dar "eathuban and McDulina; dOnied tbnt
tha,. \Old accueed Ho. 2 Iidl3t they wanted h1.a ;: 0 sBJ' or tried
to perautlds him to any an,ythins tb'\t WlUl untrue . .18 thay
were .eeking intorcation trtlC thD accuaed it would obvioualy
ban been f'u.tUe tor them 'to teed h1.a wi tb lnto:n::l.:ltion, par.
tioularly falae intoraation. It is unnaceue.ry to eet ou;:
t he evidence of tbeee two 'ldtneeaes in dsta1l.
fr-l.V9 \bair evidenoe very well Mel gave every appe:1rance of
h onesty aad reliability . Ven. der Westbu.iun appeared to be
a pJ.aoid , pa1natakina type, wbereQS lIo.Dulin,g nemed to be
a ratber fiery 1nd1vid~ . Both of tbem emerged coopletely
unaoB;:bed trom crose-e:m.clinntion, end we doubt that a can ot
JiicDul.i..nB:' a teapor8Q8nt would bo.ve fared 88 well it be was no;:
;:ellltIB the truth.
Accused No.2 Bave bie evidence-i.D-och1ef with
an air of aseurance , but there 1mB c. marked cban&c i.n hia
demeenour as oro.es-e:uw1.natioQ sot under'Ml¥. Be became belli_
( 10
tant, nervou.s and aeeQJ.n,gl.T WlIIUl'e of h.1aselt, PBrticulcrlT (20
when dealing wi tb QAttere aUCh aa bie reaction to the 081'1'8 that
NxaallDb hnd. gone 'to Bopc.neea1., and the alleged oonvertlation
with Col. StcenJce.cp at Wentworth . In the light ot all the
varioua ta.ctora 1118 have Q8ntioned 1'IQ az-. anti.tied that acou.
lied No . 2 WIlB an untruthful witnese . We re~eot hie evidenoe
01' U1-treatz:lent and aasaulte , atc . at the hands of the JI0110e .
We aleo reject the evidence ot acoused No.2
regarding the / ••••••• ••• •• ..•
•
•
•
•
- 5058- Judgcent.
r ego:rdi.a.g the Pll'poee tor 1Wh1ch the April lII8etillB nt 1'f:mao
DAta bO'USe wna called and tbe oattere which .... re diecuseed
at th3t ceeti.nB; . "e believe that a.oouaed No. 2 W8II iavol.
ved in subversive acUvitiu I!U!I deeor1bad by NX88anG. Ho_
ever, f or raMona whiob have already been etnted , .... do not
consider that the unoorroborated evideno. ot ;:be acoomplioe
NXllIIana j\l.8Utiu tbe oonviction of accwsed No . 2 on ~ ot
the cb.:l.rgee,
We are dealillB with the defenoe wi tneeaee
core or 1..,,, in tbe order in whiob theT were oalled. The
next ;: 0 be called WQ8 accused No.6. He baa known aocU.8ad
No.1 "ince about 1947. hoc 1949 to about 1962 be worked
at tbe AlO3Jl tBOt Cry near Pietornnribburg. Sinoe then be ~
been a aelf-employed wood and c~ cerch:lnt and freeb produce
dealer living at l puc.al.az::I6t' !01CU!lhip, Ho.coaradftJ.e. He belCllloB'"
ed to the Motal. and Allied Workera' Union wbUe eaployod at
Aloan but W8.S never n gecber of SACTU or a union affilia ted
to SACTU. Nevertheleas be protealled great intereat in the
n.fta.ira ot SAarU.
COCDunity Guard , vice-chn.1ratul 01' Inkathll, obain:l/J.ll ot awol_
fare organisation and n meaber ot the a.n'ti-tuber culoeia ca,,~
oiation. He used t o meet aeeueod No.1 trequentl,. when he
went hawking hie tmrea at Mc.oibiaa and lnadi at woekenda, an.d
thus it ftIl8 tb:I.t be onl1ad at the hOWle ot accused No . f on the
:!iret SllturdlLy 1n August 19'75.
Accuaed No .6 oontin:!.ed tha.t on ti14t SBt:ur.o
dAy be 'fftl,$ caked t o tell Joho.cnea lnOngw3llB tha.t aocused No.1
wanted h.1J:I / ••••••••••••••••••
( 10
,20
o
o
o
o
- 5059- Judpent.
wanted b1.c:I to occe the tollow1..aB SUnday (10th Ausuat) aad
dieouae the revival. ot SAC'l'O. Hia evidence o.bout the rut
ot hie oonverao.tion wi th accused No. 1 on the Soturdo.: wnB
not entirel,. ooneietont or eatietactory I but 1 t wn.e Dot
demolllltrsbly untru1;hful Md nothing turna on 1 t. However.
he woa un8aay and evasive when queetioned about whether he
bod been a tllI.m.ber ot SACTtJ,
the te.ct that accused No . 1
ber ot that organieo.tlon.
ot inongtmne but to.iled.
,pertlcule.rly when contronted with lWo
bad deecribed .. aa 8J1 ord1.nary memo:o
In MY eWnt be tried to get ho1d
Ho W!l8 due to 80 to Inndi on 10th
Aw;uat to sell and deliver "maducb18" 8J1d be would bnve giV9n
Klongwone a 11tt to tlccused No. lie bouse on hie wny to !nadi.
He happenad to Cleet accused No. 8 during the afternoon ot the
9th AUBWIt, and 1 t wna then arransed thnt accuaed No. 8
WOUl.d ac:coop6Dy h:1o to Inadi the tollowins corninS. He ex:.
ploi.nood that accused No . 8 usod to accocpany hie on hi. trip!!
to Jlaclblsll or IDIld! on occCUliona in ordflr to eell lodies'
baas "Ib.1ch he c.e.nutnctured in hie epc.re t:iae.
.ucb occasion. The two ot thee accordinGly eet out tor lnDdi
that SUn~ mornins without a.n,y tbdllgb.t ot ettendinc a cea t-
1 ... The,. 0.011 oalled in at nocused No . l' a plaoe tor ncc",,",
sed No . 6 to report that he bad been wmblo to s-t hold ot
inonewnns •
Tbara ia no need tor n detailed reauc6 ot
acc\Uled No. 6'a evidencs relative to the oeetin,g on 10th AU&"
\let and the d1eCWIllion which preceded it. Hie veraion ot
what occurred tbnt day did Dot ditter aat.erlall,. trOD the
version ot / ••••.•..••.••••••••
•
• ( 10
• (20
•
Judpen't.
lOO' 342.
verdon ot acoused lIo. 1 , u :oept in one respect 'I'Ih1ch will
be mentioned in due oOUTse, but it contained a ooo other tea..
turn wbio.b ft8 ought to dj,souss. Accused No. 6 denied that
~ ot the lettere oontained oriticiea ot tal,ephonio oOClmWl1e
cationa bet'I'IGen DblOQo 8l1d hie releU ves in South Africa.
He ea1d that the mntter cropped up during oonversation betore
the ceetin.g cODl:l8nced, c.nd that it W08 be wbo voiced the ori t-
He diaopproved of Dhlooo usiDS the telephone t o
oOOClUJl.ioo.te wi th hie brother-in- law, MBkhoba . He hc.d dis_
trusted the telophone sinae an ocCnsiOll in 1972 when two
membe r s ot the eecur1ty pOlice visited and questi oned hiD
about a 1IIhi te Va1.1&nt /:Iotor oar shortly &iter he had been in
telephOnio ooaouniontion with Dblomo . H01'rQver, thnt tolephone
oonversation had nothing to do with a whi to Val.1e.nt or ~
thina 81ae that the seourity polioemen epoke about , and he
oould give no eatlSible TilMOn tor havinG connected it with
the 'Vieit by the police . Nor 'ImJI he nb1e to exPlain to our
entietaction why bo should have critieieed Dhl.oao t or tele_
phoning lIakhobo. , avon it be personally distrusted the ule_
( 10
pboae . Ue ee.1d that be did Dot know that Dhlooo was a ceaber l2C
ot the A. N,C. or ~ other l.I.Dl.awtul. or ganisation, and had no
re:l8 on to suppose that Dbloco ' a telephone conversation with
Makhoba 'f'I88 contidential or that they would be e.cbl!U'1"eased
it it were ove rheard. When pressed f or tbe reason why be
bAd voiced the oriticiam be ee.1d that he wa.e worried that the
telephone cnll oould l and Jlakhoba in trouble, firatly because
it cnce !'roc Dhlomo who had lett the coW\tr,. on an exit 9'u~it ,
and secon4l,. / •••.••••. •• . • ••
•
•
o
-5061- .. udgml!%lt.
and eecondly beoauae of hie own experienoe after the telephone
oall. from Dbloco in 1972, It may 1'1811 be that aocused No.6
had 80aethine to ea:t about the ~r of Wling the telephone
I!l5 a oeans of ooc.::nuUcatinB; with Dhlomo, but the reasona whioh
Ie
haV1:l no doubt 'that the critioieo of telephonio co.i!cWlicatiOM
WBB COnoerhed ..nth A,N,C, a!'fai.ra end "hat Ilcoused No, 6
dishoneetly tried to conceal that fact.
Accordine to acc~ed No.6 be took over the
readine at the lZII!et1.ne Ilfter Nxaeana bad read the first short l10
letter frOl:l Dhlomo. In his evidenoe-in~hief aocused No.6
ooul.d not remember bnvi.na read oore than tour letters to the
meetin.6 ; two from lIabbida. to accused No.1, one !rae acoused
No. 1 to Xabhida, and a letter in Zulu concerning the Luthull
commenoration service. However. Wben croea-41xacined eome
days later he recalled tbllt be had aleo read lIabhida's addrees
to tha SAC'1'O meeting . If accused No. 6 did read out an
addreaa by lIlabhida it is IlUrprieilLg, though not impoae1ble.
tlut he would have torgotten about 1 t when speoifically aaked
by hi. cOWlBel 'llbether he read aa.Y doCUtlent additional. to the \20
letters be .mentioned. The point has 11 ttle or no significance
but; we cwntioQ ito Q.8 btl.v1n,g eome bearine; on the quootion
whether the document (as diet1a,gu.ished free lettere) betore
the meeting we.a Exhibit "10" or an s1drese on SACTU Qattera .
As alrea4y mentioned . accuaed No. 1 '1'1'38 not
asked to exPlain how thie "eXploratory" meeting was able to
cake decieions regarding the revival ot SACTU. Accu .. d No.6
'ff88 asked / ••• •• ..•••..•.••
•
•
•
•
-;nrd. gtl e.>t t •
wa.a aaked to do so. He had stated in hie evidence-i~bief',
quite unequivooallT. tbllt it woa decided to recruit t.lve
young people "ho II'OU.l.d be .ent aut of tho country t o stu.dy
and then return to organi se f or &ACTU. When asked wbere
'thea. people would be found he eaid thn t many place. 1a. Natal
were mentionsd . Under cros.-elUlJllination he stated varioualy
that there was no deoision to recruit the88 people for train
ing abroad; th&t it was nerdy an idea or vie" wi tb 'Ilhioh
theT did not quorrel; that they just; decided to inveetigate
the question: that accueed No.1 told thee w try to get
hold of recruits; that the ceetine: was of the opinion that
people should go for trade union trai..n.in&: and that tbey
Q8reed about the oatter . He waa in ditticul ty becauae be had
earlier cade it claar that the meet1na: WD8 merely an exPlora
tory one attended by a handful of persona who could not take
an.y decision 1.0 the name of SACTU. In &rJ:i event, according
to accuaed No.6 the fiMl. opinion of the _eUng was that
twelve reoruits ehould be sent abroad. He declined an in-
vitation to eay tbe.t the nucber waa reduced to eight 00
account ot the decieion to mark tioe with reepect to Durban
and Pinetown. He recained adaca.ot that they Bgr'eed on twelve
recruit. and no other nucber . and thereby oontr adi.cted the
evidence of ac.cuaed No . 1 in a materiel. respect. On the
other hand he con!'irmed the evidence of accused No . 1 in
another caterial reepect, nnmely that the .uggeetion wna that
one of the tw9lw recruits was to be obtained in Newoaatle ,
one in Ladysoith. one in Eatcourt, two in Pieten:aritzburg,
two in Hammarsdal./ • •• . .......• ~.
,
.. --Ilo'-' .... ~.
PM'! 345.
two in Ho.c./!IlU'sdeJ.e, one for Etl,plngeni and two ea.cb for Durban
o.nd Pi.Jle t o"n . Accused No . 6 8tated categorlcnlly thtI.t then
were the plo.ce8 where the recruits were to be obto.ined, and
t.bSt there wall DO oentioD at the meetins of plac88 to which
the recruits woUl.d be nnt atter they returned froe training .
He added later tbc.t Emp£Ulgt!ni wa.e menticned in accused No . p.
letter (to. Mabhida) aa one of 'the places where a recruit
should be obtained.
The evidence of accused No. 6 about bow the
Clue.tioD cf a trip to Empangeni arose, e..nd what W0.8 .aid and
decided in that conneotion at the meeting , ccrreapond~aUb-
atantially with the evidence of accused No.. 1 . Aco.or4in6
t o. accused No. 6 Nxaaana not cnly eaid thIlt he kne", )fOSUben.e ,
Cele and Hltc8i but alac described their cceupo.ticna , statinB
that Jlogu.bane 1mB a photographer, thnt Cele worked in certain
adminiatration offices and Nkosi worked for an attorney .
After acme prtIvnricoticn he admitted thtt inasmuch as he
accepted that Nxnanna kne" theae three peo,ple he al.8e beUeved
thnt the,. IIlU.!It knew h1m . In the ecntext in "hich thb &4-hie beliet 'bat
m.18sicn was mo.de he clearly meant to convey thnt .. the three
people kne. Nxnaann perBisted up to. the time that they a.etu.
He had etated in his evidence-in~hief
th:lt when they met lIlagubo.ne it then appeared to. hilD tbat M&BU-
bane 4id not know Nxaaane.. Aocused No.. 6 8aid tbnt .men they
"ere appreaehiD6 Empe..ngeni, at his Buggesticn, they decided
t o. use the fict! ticua lllItnes of Mlthize and Nsubane - in order
to. ccnceal. their ident! ties frcm the jl8cple they intended to
Cleet. / • ••••••••• . •••••
•
•
•
•
---001 1.1 ... 6"'" ... ~ •
meet . Of eourae it would hAve been tutile fcr Nxas!l.Da to.
use a fiot1 tieWl JlQ.C)e to. oonceal. his identi ty fr om pecple
who knew h.i..m, but accused No. . 6 obvicual.y fai.l.ed to think cf
that when cencooting his stcry abcut the trip to. E.c:ipo..ngeni .
When asked how the uss ef a fictiticus naoe ceuld prevent
Magu.bane froc lmo.w1na: who Nxne!l.Da was, accused No . 6 first
pretended nct to. understand the ClWtst1 0n and theD mo.de the
nonsensical ol.ai.m thnt the fiotiti oua name "cuid concee.l.
Realising that further
prevnrieaticn woul.d nct rescue him from hie dilemca , he
eventu3l.ly eaid that he had lNgg88ted the use of false nwnes
because Nxoaana hod infcrmed him, before they reached Bopan.
geni, tha.t although be (Nxa.aana) k.n8w IIIIngubnne he did not
believe that 1I!Io.gubrule k.na" him. By this stage 8CCUBSd No. . 6
himself appeared t o. real.iae tb.3.t hie mendaoity was obvious ,
as indeed it waa . Judging by bie deaeanour , he was embarras-
sed by being expoeed. ae a liar .
Aocording to. aocused 1'1'0.. 6 they used fiett.
tioue QS.I:I8S, nct because they were about the businesB ot the
A.N.C., but beonuae they intended to. discuse the "delicate"
matter e f SACTO. .. :further reaaen was tb:lt they 'l'l8re alao
gcing to tali nbout Inkotha. and misht get into. troubl.e it
lnkatha dillco.vered that they were interfering in its affaire
in that area . '!'bey mnde no attempt to. recruit Magubane as
Ii SACTU organiser , Qctwi thetandiag that this WBB ths only
reason tcr visitinG him. Aceuaed No. . 6 etated that they
diecu.seed Inkatha wi th J.:Ic.gub.:lne , and 1 t !lilly bo tbllt there ml.lI
al.BC ecce / • •• • ••• • •• . • . •• • •••••
(20
o
o
-5,)65- Judgment.
PM' 347.
alao soma diecWleion about SA.cru or trade unions or tbe con-
cUtion ot' the workers in the Bmpe.n.gecl. nrea. We do Dot know
preciaely wbat the lattar cUscusaion is alleged to bave embrac_
ed, 'Oecau.ee bis evidence on the point wae %Wi thar cl.ear nor
con.ailltent. The reoson be advanced f or caJcinS no attelllpt to
recruit Jlagub8.ne Mla that they felt that it would be unwise to
tuk about SACTU in the pruence of the two stranger •• H,
alao f'orced the opinion tbll.1- in vie" of' the nature of' bi. occu
patioo, Magubane lacked the q\l8lif'ic~tiona necesanry for a
SACTO organiser. Of oouree it 1s coCltC.on cousa that they cUd
not speck to M:lgUbana about org::uU.aing for SACTU : on Nxo.aanate
evidence there ~e no question of doing 80 be03\18S their purpose
"as to find out lI'hathsr he 1I'0uld be of us. to the A.N.C., not
3ACTO . The reasons that accWled No . 6 gave for not diacuuina
the matter with Magubl!Uls were unconvincing. WhY abo\lld the
preaeoce of the two 8tren.aer& i..ohibit di.C\I..881on of SACTU but
oot , apparently. of Inkatha7 If, sa he claill1ed, accused No . 6
was satisfied tb3t their identity W8!I effeotively ooncealed by
the \l8e of talae names why oould they not diacWl8 any topio
wi tb i.mpwd t)'1 When confronted with tbie quution all be
could say was that with the no atrangere preaent they did not
th.1..nk uw.t the fictitio\l8 D8J:)8e a.ft'orded the. ev.ftic1ent pre.
tection. If the preaeooe of the strangers inhibited diecus-
aion why did they oot oontrive to call Mag\lbnne aalde and talk
t o b1.m privately, espeoially 88 they had gone to a o much trouble
and sxpense to aee b..i.m? In ens"r to the proseoutor accused
fto. 6 881d that there YI'aI no INch urgeocy about the matter
that obliged / ••••••••••••
•
• ( 10
• (20
•
- 5066- Judgclent.
Page 348 .
tbat obliS'd. him to ca11 lIa.gubane .. 1de . In ana1l'8r to the
Court ~ aaid that they did oot considar doins eo because
they "thought there were other people", QIld he agreed that
!lJlother poaeible reaa on was tbnt they had already discovered
that lIagub!ule W!l8 Dot a sui table person to be a SACTU orse.n1-
aero He explained that 1.0 hill op1nion Mo.gubane 'lme not .\l.1t;.
able because be carried on hia busine.1I at a fixed address , in
contrut to an itinerant photographer 11''00 could bove cOClbined
that " ork nth organiaing for SAC'I'U . All to that, it seema
eooewhat improbable (though not imposdble) that Nxasa.na 1I'DUl.d
bave sUOC"eted a self-employed photographer , lI'hether itinerant
or stationary, 88 a likely organleer f or SACTU . A1 tholl6h WEt
attach but little aignif1ce.nce to this improbability it ie in
line with the conclusion _ have arrived at on other groundJI ,
namely tMt Nxasana did not knoll'lilagubane betore underto.ki.n.g
the tr1 p to BmPMgeni .
There lI'ere lIome reapecte in "hioh accused NO.
6 contradicted NxaaMa's version ot their encounters nth
Peter Cele, BWlice Cele and Bocaile Cele, but nothi.nB t\u"M
on that . On the other band bis contradiction ot Nxaa&n4's
accaunt of the viei t to Nkosi 1I1la botb radical and material.
He ea1d thAt they stopped out8ide an offiCII building 1.0 Bl:lpan.
gvni aad be 1I'ai1-ed 10 the C8.t" whlle "1Ae8Ot:l went 1nto the bull._
ding to lIee Nkosi. Not l ong thereafter N:xaaana returned and
told him that "that lI'ae not the peraon (Nkoai) .mom be had
known", Thus he denied N:xaaatll)'l1 evidence tbat it was he
(accused No.6) 1I'bo "ent into tbe attorney's offices a.nd.
therentter / ••••••••••••• • ••••••
(10
(20
)
o
therea.:t'ter reported that the lOtosi worldne there wae all old
m8Jl .:lnd therefor. not LeoDard Nkosi of the eecuri ty polioe.
One cUtticulty we have with thie version 18 that it was never
put to N%asana. His evidence that it was No.6 accused Who
'l'be explanation
th3t accused No.6 gave tor the ocUeaion W8.8 that he torgot to
eive oounsel the Mcnaary in.struotiOJl8 . .n_ etances where an aocus.d's case had not been aoourately pI.lt in
oroee-eXl1m1nation counsel was aaretuJ. to place that taot on
reoord in tbe course of examS n1 na: the acouaed. but there W88 no (10
Buggeetion tb:1t cou.n .. l had erred in this inatanee. It
Nxaea.na'e evidenoe on this iseue was talse we tind it ditlioult
to believe that sccWled No.6 oould bave torgotton to iDIJtruot
oounsel accordinsly. Apart trom thia ditticult,. the .tory
tha t N~QftlI. wont in to a.8 Nkoei OWl burdly be reconciled
witb the reat of the accused's evidence. It they tter. an.x.iOWl
to conceal their identi ty it would be eilly tor Nu.aana rather
tban accused No.6 to approach lOcosi, for on the defence ~r.ion
Nxo.sana knew lOcoei "hereas accused No. 6 did not. When cross_
examined OD this a.epecl ot the cat tel' accused No.6 qain
resorted to evaaion, and our tim impression was tbal he waa
beine deUberately untruthtUl. In any event, we would have
to be extremely gullible to believe that Nxaaana knew a oertain
Nkosi "ho worked for a particular attorney in EmJlO.n6en1 but
diacoveNid Wben he went to that attorlley'. ottices to ee8 that
Nkosi, that by a strange coincidence it was a difterent Nkosi
ftbo worked there.
Accordins to / ••••••••••••••••
(20
•
•
•
•
--~.-. ---~.
According to aocused No. 6 the main purpoee
of the fint trip to Emp!lDgeni was to 1'1" Riot Jlkwana%l, but
tbey did Dot even look ftlr Riot. The reaeon tor thie MS
that they had thought th!1t Cele would aeaist them in tindine
RiOt, but as mattere turned out Cele was not there to help
them . Attar accused No.6 bad reported to accused li o . 1 on
this trip be a.ccompa.nied Zuma and Nxasan8 on the eecond trip
to aee Riot. He said that they vi.ited Riot at ligo,.. , that
Z~ Daked Riot to tr,. to tind one or two persona to be aent
abroad to study for SACTU, and tbllt Riot replied tbat be wa.e
unable to help becnuae he bnd been banned and the people in
th:lt rural area knew nothing about trade Wliona. Accueed ho .
6 denied tbat Zwna said Bnythina about recruits t or military
trainiD8, and by implication he aleo diepu.ted the reat of
tfxaaana ' a veraion of Whnt tranap1red on this secand trip . It
tbe decision (or lJ\l88eat1on, opinion or agreement) of the .ceet
ina on 10tb AU8U8t troe that o.al.;r aDS recruit for traini.ng
abrond be obtained from the Empa,ngen1 lU"8a it le W'Ilikel,. that
Zum wo\Il.d have aaked Riot to find one or two ,Peraona for that
purpoe., but accuaed No . 6 explained that any additional. re
cruit could MW been used to help the organisation without
being eent abroad tor tmining. HOW8wr, if that ia wb3t
Zum.3 had in mind it 18 surpr1eins that he did not sa,. eO ,
instead of indicati.l16 twt more than one recruit might be nnt
abroad.
Acoueed No.6 denied that he ever tald Nxaaan8
that accused No.1 required him to seek bis brother ' s ossietance
in connection /. ' •• •••• • •••••
( ,0
(20
o
o
[)
D
w __ .,......_ ••
PM! 351 .
in conneotion with gettin,g two persons acrolll! the border to
Swszilond or IItOC!lmbiqus . We do not consider thia to be a
partiou.l:1rly iJDport!lnt 18SU8. 'IIhllt ill of onlcial iJDportaoce,
however, 111 the isllue regardin& the pur poee of the t.o tri.pe
to the Empan,gebi area, particularly tha firat trip. It
Hxnl!lana"a aocount of the tirllt 'trip ie Iliuba'tantially tnlfl i't
folloa th:lt he alllO apolee the truth about what wa.a rearl and
dhcwlIsed at Ula meeting on 10th August - to thie extent at
leaa't . that one of the letters contained instruction. to i,..
v.atigate lIQBU.b:lne, Oele and likod on beb.e.lf of the A.!i.C . and (10
it was decided tMt Nusana, aocused No . 6 and Zuma (if po .. ib1e)
wou1d trawl to Emprulgeni for th:l.t purpoee.
was truthful. in the.e Teepects it follows that the defence
wraion that the mefltine; hIld nothirls to do with .l.N.C. aotivi.
tie. llluat be rejeoted aa falll8. We haw eJ.ready indicated
what we think of the story that accused No. 6 told about the
firat trip to BmpCl.n&eni . Hia liea were 80 transparent that we
ere convinced, beyond a.o.y doubt , Dot only that hi. etOl"1 waI
fa.l.ae but &lao that the ODa he waa trying to refUte W&.II aub-
II tnn t1 ally tr\le. 'I'hi' do .. Dot .oean that we reject the defence (20
evidence that the lIIuting had nothing to do with the .l.N.C.
aimply because .... belhve Nxaaana'a evidence that it did. Our
findinas ot fact lLTe bneed on vsrioua grounds, IlJld the fact
that acoused No.6 found it necesllary to lie about the bpe.n.geni
trip 1111 but one of thfllll.
We DOW turD to deal. wi tb the ocoas100 when
accused No.6 eaw Bernard Nlcolli and llfnd DumA in LadTami tho
According I . ... . .............. .
•
•
•
•
- -;IV I V'- ---"uu-~"". ~.
Page 352.
According to accuaed No.6 'thia OCC\lJ'Ted in midooSep'teClber
1915 , not about the end of July or the beginning of Ausuat 8.8
Nkosi thaugh~ . Tbe date ill not important ond _ acce.vt tbnt
Rkoai may bnve been wrong about 1 t . Accuaed No . 6 gave ala.
bo~te evidence to prove t~t he went to Ladysmith on tbia
occ').sion to atwnd to the offaire of a deceased estate in which
be was tbe executor dative and that be lI.ctually dealt with the
estate's B!taira for 1II0et of the d~y . This evidence 1I'as not
At about 3.4 5 p.m. he went to
the Izalcheni Loco.tion to afle Nkod ond Dumc.. They were old
SACW aCQ.uaintances whoc he had not 8een for some ten yeers .
Nkosi bad been a SACTU organiser in Durban, and he hOd cet
Duma at !I. SAC'I'U meeting in 1962 . He seid tbll t until they gave
evidence at this trial be Vf8S ignor"41.t of the fact thnt they
had served long prieon lIentencee for sabotase , but he 1I'tlS
a'fl8r'(! tb::t they ware members of the A.N.C . before it waa de_
clared an unlGwtul or&~sation . He decided to look t.~eo. up
on thla occasioo becAuse be Md learnt from someone at Ha::llDBrs-
dale that they were liv1~ at lzaldJeni, and be ~(! the time to
spare betore leaving Ladya.m1th.
Accused No.6 w3i ted for likosi to finieb work
and then drive to the latter'. bouse wbere they conversed gao
er~ly about such matters as Nkosi's wagee, bis fowls and the
Ink:ltbn organisation . Thereafter Nkolli went to call Duma , and
(10
(20
the three of them sot into accused No . 6' 8 cc.r for n diecu9s10n .
Accused No.6 BIlie! th:lt he told the others about the Inlcntha
organisation , with particular reference t o its youth brigade,
about the/ ••••.••..•..•.• •
o
o
o
o
- 50'11- Ju4g1:1ent.
1' .... )52.(~)
about the CommW1ity Guard at ~dal.e and tbe. difficw.ty it
had in controlling crime among the youth , and about the Mce ...
ity to revive SAOTU , He &!lid thnt be had tried. to perauade
Nkoei and Duma to orgoniae for SACTU in tho.t area and try to
get the young people to join trade unions. Nkoei and Duma
cou14 not be persuaded. NlI:olli'lI IIXCUlle waa that be bad re_
cently been nleaeed from a banning order and was afraid to
hnve ~h1t\6 to do wi th SACTU because hia neighbours were
policemen, l)um,:l said that be ooul.d do notbiflB as be was atill
eubjeet to D bDnnias order .
Acoused No . 6 den1ed saying an.ythi116 to Nkoai
and. Duma a.bout recrui t8 for mili tary tr:linina or WltDIUTied.
girls to do DUreiag in loc3lllbiQUII. tinder cross-enlmination
be stated variously that he did. not uk them to find. reoruits
tor SACTU tro.ining abroad; that he snid nothillB to theo about
organisera: that he did tell them to look for people who would
be sent abrond; that be could not remember epe~kine about
orgnn.1eers or ae.ltina them to look for peraonsi and f1nal.ly
that be did tell them tb&t the opinion bOd been axpreeaed that
people should be fOWld who would go nbroad tor traiaina in
SAC'l'O affDira and then return, but did not say tbllt OM 8uch
person bad to be obtained in Ladyami tho Hia evidence ot what
be B~1o. or did not SC1y to Nkoai a.nd Duma about reonti til tor
trainine nbroad was eo bopelesely 1nconaietent and unsat18_
tactory that it can eat817 be rejected aa ftllee - whicb leavee
ua witb Nkoei'e evidence that be asked them to recruit young
bOy8 for .militnry troining in lIocambiQue. In view of bia
proven propensity t ...... . .. ·
•
(10 •
• (20
•
- 5072- Judgpent .
proven propensity for lying on material iaeU8e we are liiew.iee
d b d No . 6 " denial that he 1DS4e the request unimpra ee8 y accuse
for unmllrried girlll to do nursing in 1I0eambique . Neverthel8Be .
for the reaeOD8 already indicated, we do not think that it baa
been proved beyond all reasonable doubt that aocused No . 6
-b11 hAN C celle or recruit inoited Nkoei o.nd Duo&. to 88 _ 8 •••
persona for .mill tory training.
Aocused No . 6 denied that he spoke to the
witDUS S18h1 about r eol"\dtin6 young boys for millt3ry train-
ina or said anythine about selecting e. eui table training
ground . He cla.1.med that the relevant conversations toOk place
during september 1975, not in June and August sa stnted by
Siahi. He said tbat on the tint occasion be epoke to Siah1.
and ODe Leonard Zulu while they were seated in a csr near tbe
M~a.nga shoppias centre . telling theo inter ~ that the
tiJ:le would come wben people would bave to be rflcrui ted to
orgnn1e8 for SAcrU . that they sbould keep a lookout tlt their
t pl t tor -ople who could be recru.1 ted to plaoe. 0 em oymen .....
help in tbe fight aae.inet crime and tor the rights of the
(10
workers , and that trained penoMal would be eoming to train '; (20
the recruits as organieera . He went to Siabi ' s bome e. week
or two later in connection witb the aftaire of t he Comounity
Guard , and took the opportunity to epeak to him aGai.n about
trade uniM m:ltters . On this occasion Siehl said that he
would not be able to tind reerui te because he was workins
ehifte and doina: delivery work outside his factory, and there_
tore bad little contact with the other workera .
Siehl / • •• •• ••• • •••• • • •. •• • •
Collection Number: AD2021
SOUTH AFRICAN INSTITUTE OF RACE RELATIONS, Security trials 1958-1982
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