BP IN THE SUPREME COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) BEFORE: The Honourable Mr. Justice DE WET, J.P.

Transcription

1 BP IN THE SUPREME COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) BEFORE: The Honourable Mr. Justice DE WET, J.P. In the matter of: THE STATE vs. THE NATIONAL HIGH COMMAND & OTHERS 29 TH OCTOBER, : APPLICATION FOR BAIL : L. BERNSTEIN :-, S.A., ADDRESSES THE COURT: My Lord, I rely only on one statement of the law, namely, that which appears at page 258 of Gardiner and Lansdown, which contains the proposition that all that an accused person need show in the first instance is that here are facts rendering it unlikely that he will abscond or otherwise interfere with the administration of justice. That is a general statement, my Lord, of the law, which enables your Lordship to apply the general rule that one must weigh the individual liberty against the duty to safeguard the administration of justice. But once justice is safeguarded, my Lord, then the individual, who is presumed to be innocent, must obtain the benefit of the rule as to bail. My Lord, the most important considerations are that the accused is presumed innocent; he has, or should have, the freedom to prepare his defence in as unrestricted a way as possible, and that if it is no danger to the administration of justice,

2 - 19 humanitarian motives dictate that he should be released. The application in this case, my Lord, is made on a very simple ground, although it must perhaps be unique in the history of bail applications. The facts disclose a most remarkable history, which should almost automatically entitle a man to release on his own recognisances. My Lord, I shall refer to the facts in a moment, but may I suggest, in advance of reading them, that though the applicant may be no follower of Gandhi or any believer in the virtues of suffering as such, if there is anything that is clear it is that over the past 15 years, he has been ready at all times to place his political beliefs on trial; to take the consequences of those beliefs, and if necessary, to be imprisoned for them. The Court will see, when I go into the facts, my Lord, what he has undergone; what it has entailed in grave suffering for he himself, for his wife, and for his family; ending up, my Lord, with 88 days of confinement in complete isolation from his fellow-men. My Lord, the facts start at paragraph 5 of this affidavit, where the applicant says: Your petitioner, in making this application for bail, expects that the State will oppose the application on the grounds that your petitioner will not stand his trial, as it has done in another application. In order that your petitioner may persuade the above honourable Court that he has no intention of absconding, he intends setting out fully the circumstances under which he has lived in South Africa for approximately the last 15 years. Of course, my Lord, I think it is common cause the applicant is a

3 - South African. He is just referring to the last 15 years. Before I proceed with the history, my Lord, may I say that save in one respect, which is most seriously challenged, save in one respect the whole of this history is accepted by the State. Your petitioner has not now, nor has he ever had a passport. In 1949 he applied to the Minister of the Interior for a passport to enable him and his family to go to Kenya, where he had been offered lucrative employment as an architect for a period of three years. The petitioner was interviewed by the Security Branch, to whom the correspondence between him and the Kenya administration was shown. Your petitioner s application was refused, and your petitioner believes that this refusal was based on political grounds, as no other grounds existed for such refusal. Your petitioner further believes that he was the first South African citizen to be refused a passport on the ground of his political beliefs. He says that any investigation would have shown that his then proposed visit to Kenya was not in any way connected with politics. Your petitioner sought legal advice and was advised that he was not debarred from leaving South Africa without a passport, but that he did not do so on the ground that there was some doubt as to whether he and all the members of his family would be entitled to re-enter South Africa once they had left. My Lord, this is obviously of great importance. Your Lordship will bear in mind that anyone was at complete liberty to leave South Africa at that time, and the fact that there might have been some danger, for

4 - 21 instance, that he could not get his wife back with him, was the factor that decided him not to leave to take up this appointment. When the Suppression of Communism Act was passed in 1950, your petitioner was given an opportunity by the liquidator to advance reasons why his name should not be included on the list. Your petitioner did not avail himself of that opportunity, but on the contrary, advised the liquidator that he had been a member of the Communist Party and that he knew no reason why his name should not be included in that list. Your petitioner knew then that such listing would involve him in a number of disabilities, and he did not choose to deny the fact. Your Lordship is aware of the disabilities which can be imposed and have been imposed under the law. In 1954, and as a result of having been listed, your petitioner was served with orders issued by the Minister of Justice prohibiting him from attending gatherings, and ordering him not to take part in the activities of certain lawful associations, to which he had devoted much of his time, and thereby further limiting your petitioner s rights of association and speech. But despite such disabilities, he did not choose to leave South Africa although there was nothing preventing him from doing so. During 1956 the then Minister of Justice told Parliament that approximatley 0 of these persons would be arrested and charged with High Treason as a result of a political campaign known as the Congress of the People. Your petitioner had been active in that campaign by attending and addressing meetings, at some

5 - 22 of which members of the Security Branch and South African Police were present, and had published articles in his own name in support of it. Your petitioner had every reason to believe that he would be one of the 0 referred to by the Minister of Justice. Even though it would have been lawful for him to have left the country without a passport, he did not choose to do so. After the announcement was made, approximately 1 people were in fact arrested, but not your petitioner. Your petitioner s orders from the Minister of Justice made it quite clear that they were intended to prevent him from taking part in the affairs of the Congress of the People. Amongst the 1 people were your petitioners associates in that campaign. My Lord, at that stage it must have been abundantly clear to the applicant that he would be arrested and charged. It was rumoured and semi-officially predicted in certain newspapers supporting the Government that further arrests would soon follow. Your petitioner expected to be arrested, and was in fact arrested, in his own home at approximatley 3 o clock in the morning approximately one week after the 1 persons were arrested. My Lord, although the charge of High Treason eventually failed after a trial lasting over some four years, it was obvious that people, in 1956, must have regarded it as extremely serious, and yet the applicant made no effort to avoid an arrest and trial. Your petitioner was admitted to bail in the sum of R and subject to certain conditions. There followed a lengthy preparatory examination which your petitioner attended. He was committed for trial

6 - 23 and indicted before a special court in Pretoria. The first indictment was attacked by the Defence and was quashed in part, and in part withdrawn, and thereafter the accused were divided into three groups. Your petitioner was not in the group which was tried first, but remained on bail. Subsequently the various conditions fell away by reason of technical reasons. But despite the possibility of conviction for high treason and despite the fact that your petitioner s practice had been ruined as a result of his inability to attend to it, he still did not choose to leave South Africa. During this period, my Lord, the second and third groups who had been indicted for high Treason, were no longer on bail at all. The first arrests of the accused in this trial were made on about the 6 th December, 1956, and it was not until May, 1961 that the first group of the accused were acquitted. Your petitioner therefore remained subject to the danger of being convicted of high treason for more than four years. In 1960 the regulations were published under the Public Safety Act of 1953, providing for the detention of persons without trial. Your petitioner believed then that it was most likely that he would be detained. And also my Lord, that it was most likely that his wife would be detained. Your petitioner and his wife were in fact warned that they would be detained, but instead of leaving South Africa they decided to face the prospect of such detention, and made arrangements with certain

7 - 24 persons to look after their children in the event of such detention being enforced. Your petitioner also made arrangements with one Arnold Glassman, a fellow architect, to complete the professional work in which he was engaged at the time. Your petitioner had no doubt that their detention would be stringent, and that they would be interrogated. But this did not induce him to leave South Africa, or go into hiding. Your petitioner s fears were justified, and both he and his wife were in fact detained and kept in custody for approximately four months. My Lord, our submission is that nothing could give a stronger indication of the applicant s attitude than this. During 1962 and 1961 your petitioner s home was searched from time to time. His daughter s passport was taken away as well as his wife s travelling documents. He was served with more stringent orders under the Suppression of Communism Act, further restricting his freedom of speech and movement and association. During the 1962 parliamentary session, legislation was being debated which would empower the Minister to impose what has since become known as house-arrest orders. Having due regard to the history thus far set out, your petitioner considered it more than likely that as soon as the legislation found its way into the statute book, he would receive such an order. Your petitioner decided nevertheless to stay at home, and to face the disability of house-arrest rather than leave, or attempt to leave South Africa.

8 - 25 In October, 1962, as your petitioner had anticipated, he was served with such an order confining him to his home during the night; during public holidays and from 1 p.m. on Saturday during each weekend; prohibiting from receiving any visitors at his home, and directing him to report to the police daily save during week-ends and public holidays. Your petitioner was one of the first of approximately twenty who received such orders in the Transvaal. It has been reported that only two of those on whom house-arrest orders were served have not left South Africa. If such reports be correct, then your petitioner says he is one of the two who did not so depart. In early 1963, my Lord, the Minister announced that it was intended that legislation would be introduced empowering the police to detain persons for interrogation for periods of 90 days without the necessity for laying any charge. The Minister of Justice mentioned your petitioner by name as the sort of person with whom his Government had to contend, and that for this reason, inter alia, the legislation was necessary. There could have been no clearer indication to you petitioner that he would be dealt with as soon as the proposed legislation was passed. Certain friends and relations of your petitioner s advised him to make arrangements to leave South Africa, as it appeared that what was called 90-day detention could in fact be detention for an indefinite period. Or as expressed by the Minister of Justice, in another context during the debate, until this side of

9 - 26 eternity. Your petitioner was apprehensive that he might at any stage be detained for an indefinite period if he remained in South Africa. He continued to report to the police daily until he was arrested. Your petitioner was aware of the well-publicised fact that after the 1 st July the borders of the British Protectorates would be guarded. But despite this and despite his many disabilities, and his apprehensions for the future, he did not take the opportunity of fleeing from South Africa before the borders were closed. Your petitioner states that if it be said that the respondent has information that, in the event of your petitioner being granted bail, he will flee and not stand his trial, then such information will be false. And then follows a very important paragraph, my Lord. Your petitioner verily believes that the police know that he does not intend to leave South Africa. During his detention he was interrogated by the police, and asked by Lieutenant Swanepoel and Warrant Officer van Zyl to supply information to incriminate other persons. To this end the inducement of an exit permit to enable him to leave the country was held out. Your petitioner refused to ask for any such permit. Your Lordship will bear in mind what kind of detention he was in at the time this offer was made to him. Your petitioner realises that the charges which have been brought against him are serious, but says that the charges which were brought against him in 1956

10 - 27 were no less serious. Included in the charges in 1956 were allegations that your petitioner and others had firstly, gathered two armies; one called the Volunteer Corps and the other the Chisa Chisa army, which had been set up to systematically destroy property throughout the country. Secondly, had maintained contact with certain foreign states and international bodies in order that they might violently overthrow the State. Thirdly, had organised riots in Port Elizabeth, Evaton and other centres. Then the petition refers, my Lord, to the escape of Goldreich and Wolpe:-... and your petitioner says he is not able to say what motives induced them to escape. But if it was for the purpose of avoiding the charge, your petitioner denies that he has any such intention of escaping. Your petitioner humbly submits that the behaviour of individuals other than himself is not relevant. And finally, my Lord, he says that he will plead not guilty at his trial; his legal representatives have not been... that, my Lord, is the fact that this petition was signed before the particulars had arrived. But he is determined to stand his trial. Now my Lord, again, I say with respect, that that really is a unique history, and I turn briefly, my Lord, to the replying affidavits to see what kind of a case is made out. As I have indicated, my Lord, the facts in the petition are accepted. I turn first to the affidavit of Carel Josef Dirker, and his reasons will be found in the paragraphs lettered (a), (b), (c) et cetera.

11 - 28 The first point he makes is the point which is conceded by the petitioner: that the charges are serious. Then, my Lord, he proceeds to refer to other persons, and I make the submission on the petitioner s history and on his own allegation; that what other persons have done is irrelevant. But I should, my Lord, point out what would be common cause between my learned friend and me, and that is that Michael Harmel for instance, left the country at a time when he was under a 24-hour house arrest; that both Wolpe and Goldreich, when they were arrested, were detained as 90-day detainees. And Hodgson himself was under house arrest. So that there were other reasons, my Lord, for these people to leave the country, if indeed a reference to other persons is of any relevance whatsoever. The only reason, my Lord, of any substantial nature offered, is the reason contained in (1). BY THE COURT: (c) is of some importance. Two of these were allowed out on bail and also assured the Court that they had no intention and would not leave the country. That happened in several cases. : My Lord, I don t know at the moment what the charges were. My recollection, my Lord, is that the charge against Harmel was relatively unimportant. I think, my Lord, it was a failure to report on a day when, during his house arrest, he should have. BY THE COURT: Well, that is quite a serious offence. There

12 - 29 are severe penalties prescribed for that offence. The penalty of the offences seems to be of very little relevance, because you get these people on affidavit assuring the Court that they will not abscond and they have no intention of absconding, and then you find that they do. Well, that surely must influence the Court in subsequent applications, not so? MR. FISCHER: Yes my Lord. Obviously it is not a thing your Lordship can neglect entirely, but your Lordship will bear in mind that a 24-hour house arrest, for an indefinite period possibly for life may be a very much stronger motive than standing trial, or a failure to report, which, on the whole, my Lord, has been treated by the courts in this country as something warranting perhaps four days imprisonment with the rest of a year s imprisonment suspended. But, my Lord, the principal argument on this score is, my Lord, the history of the petitioner in this particular matter. He has this arrest and trial, and trial on very serious matters, because he obviously regards it as a matter of principle. So, my Lord, I wish to refer your Lordship to one authority on paragraph (i), which reads as follows: Indien die beskuldigde op borgtog vrygelaat word, sal dit nie in belang van die veiligheid van die Staat wees nie. Now, my Lord, that very contention was dealt with in the case of Rex vs. Shaw and Others, 1922 T.P.D. P. 3. My Lord, the magistrate before whom this application was made refused bail, and amongst the reasons which he gave for refusing was that

13 - MR. A FISCHER there was a state of excitement this was the 1922 strike, my Lord and that it might be dangerous. And both judges, although they upheld the exercise by the magistrate of his discretion, disapproved of this as a ground for refusal. This is what Mr. Justice Wessels said at page 7:- The magistrate has given a number of reasons, one of these reasons being that there is a state of excitement in Johannesburg at the present, and he did not think that in a case of this kind he ought to grant bail. I do not think that the section (that is the section dealing with bail) should be used for that purpose. I do not think that the section should be used for the purpose of keeping men in jail and preventing them moving among their fellow citizens. And Mr. Justice Mason dealt somewhat more fully with the same thing:- The real point of importance in this case, to my mind, is whether one of the grounds upon which the magistrate refused bail is a ground upon which he is entitled to base the use of his discretion, namely, that it is in the interests of public safety that these men should not be admitted to bail, because they may go out and further inflame the public, which is in a state of excitement. It is quite clear, that so far as the question of public safety is concerned, no such ground can be advanced after committment, because with the exception of the three charges, after committment

14 - 31 every person is absolutely entitled to bail. The extraordinary thing is that he is entitled to bail even if he has pleaded guilty and is committed for sentence. So that if these men had actually pleaded, they were entitled. Now this question of preventive detention is one of importance. One would think that if the legislature intended to grant the magistrate this species of power, which is somewhat analogous to the exercise of martial law, it would have said so. If it is intended the magistrate to be empowered to say I think it is better to lock you up because you may injure the public safety, I certainly think the legislature would have stated that that power was to be conferred, and would have guarded the exercise of that power in a very careful manner. My Lord, the legislation which introduced the 12-day rule, that is, the discretion invested in the Attorney-General to prevent bail for 12 days, is clearly a recognition of this rule. Now that, my Lord, then, is the first affidavit. The second affidavit is from one Swanepoel, who says: Ek is n luitenant in die Veiligsheid Polisie. Ek het die beskuldigde, Lionel Bernstein, ondervra gedurende sy aanhouding onder Artikel 17. Gedurende al die ondervragings was Sersant van Zyl teenwoordig. Dit was tydens die eerste of tweede onderhoude met Bernstein dat hy aan ons gesê het dat hy begerig is om n permit te verkry om die land permanente verlaat. He denies having offered a permit.

15 - 32 My Lord, I am informed the replying affidavit has only just been signed. If I may hand that in. It is the affidavit by Bernstein, in which he says in paragraph 3:- : I humbly submit that the reasons advanced by the deponent are mostly irrelevant and insufficient to found the belief expressed in this affidavit that I will not stand trial. I emphatically deny that I requested Swanepoel or van Zyl for an exit permit, and repeat the allegations. Now my Lord, it is noteworthy that van Zyl cannot remember whether it was during the first or second onderhoude ; it is noteworthy, my Lord, that though van Zyl was present, there is no corroboration of this, and I would ask your Lordship to ignore this. But if your Lordship feels it should not be ignored, then, my Lord, I would ask for leave to cross-examine Swanepoel. In all these circumstances, my Lord, I do submit that this person is a person who has shown, perhaps more clearly than one can ever in normal circumstances show, that he is prepared to stand his trial. It is not the case of a criminal who will be frightened by the severity of the sentence. He has been prepared to undergo every kind of suffering, and is still so prepared. -: COURT ADJOURNS :- COLLECTION NAME: Rivonia Trial Collection COLLECTION NUMBER: AD1844 ITEM NUMBER: A3.1 DOCUMENT: Application for Bail: L Bernstein LEGAL NOTICES This document is part of a private collection, the Rivonia Trial Collection, donated to Historical Papers at The University of the Witwatersrand, Johannesburg. Copyright Notice: All materials on the Historical Papers website are protected by South African copyright law and may not be reproduced, distributed, transmitted, displayed, or otherwise published in any format, without the prior written permission of the copyright owner. Disclaimer and Terms of Use: Provided that you maintain all copyright and other notices contained therein, you may download material (one machine readable copy and one print copy per page) for your personal and/or educational non-commercial use only. Because of the possibility of human and mechanical error as well as other factors, the University is not responsible for any errors or omissions and excludes any and all liability for any errors in or omissions from the information on the website or any related information on third party websites accessible from this website.