'Black man in a white court'

Nelson Mandela's First Court Statement - 1962

Extracts from the court record of the trial of Mandela held in the Old
Synagogue court, Pretoria, from 15 October to 7 November 1962. Mandela was
accused on two counts, that of inciting persons to strike illegally (during the
1961 stay-at-home) and that of leaving the country without a valid passport. He
conducted his own defence.

MANDELA: Your Worship, before I plead to the charge, there are one or
two points I would like to raise.

Firstly, Your Worship will recall that this matter was postponed last Monday
at my request until today, to enable Counsel to make the arrangements to be
available here today. Although Counsel is now available, after consultation with
him and my attorneys, I have elected to conduct my own defence. Some time during
the progress of these proceedings, I hope to be able to indicate that this case
is a trial of the aspirations of the African people, and because of that I
thought it proper to conduct my own defence. Nevertheless, I have decided to
retain the services of Counsel, who will be here throughout these proceedings,
and I also would like my attorney to be available in the course of these
proceedings as well, but subject to that I will conduct my own defence.

The second point I would like to raise is an application which is addressed
to Your Worship. Now at the outset, I want to make it perfectly clear that the
remarks I am going to make are not addressed to Your Worship in his personal
capacity, nor are they intended to reflect upon the integrity of the court. I
hold Your Worship in high esteem and I do not for one single moment doubt your
sense of fairness and justice. I must also mention that nothing I am going to
raise in this application is intended to reflect against the Prosecutor in his
personal capacity.

The point I wish to raise in my argument is based not on personal
considerations, but on important questions that go beyond the scope of this
present trial. I might also mention that in the course of this application I am
frequently going to refer to the white man and the white people. I want at once
to make it clear that I am no racialist, and I detest racialism, because I
regard it as a barbaric thing, whether it comes from a black man or from a white
man. The terminology that I am going to employ will be compelled on me by the
nature of the application I am making.

I want to apply for Your Worship's recusal from this case. I challenge the
right of this court to hear my case on two grounds.

Firstly, I challenge it because I fear that I will not be given a fair and
proper trial. Secondly, I consider myself neither legally nor morally bound to
obey laws made by a parliament in which I have no representation.

In a political trial such as this one, which involves a clash of the
aspirations of the African people and those of whites, the country's courts, as
presently constituted, cannot be impartial and fair.

In such cases, whites are interested parties. To have a white judicial
officer presiding, however high his esteem, and however strong his sense of
fairness and justice, is to make whites judges in their own case.

It is improper and against the elementary principles of justice to entrust
whites with cases involving the denial by them of basic human rights to the
African people.

What sort of justice is this that enables the aggrieved to sit in judgement
over those against whom they have laid a charge?

A judiciary controlled entirely by whites and enforcing laws enacted by a
white parliament in which Africans have no representation - laws which in most
cases are passed in the face of unanimous opposition from Africans -

MAGISTRATE: I am wondering whether I shouldn't interfere with you at
this stage, Mr Mandela. Aren't we going beyond the scope of the proceedings?
After all is said and done, there is only one court today and that is the White
Man's court. There is no other court. What purpose does it serve you to make an
application when there is only one court, as you know yourself. What court do
you wish to be tried by?

MANDELA: Well, Your Worship, firstly I would like Your Worship to bear
in mind that in a series of cases our courts have laid it down that the right of
a litigant to ask for a recusal of a judicial officer is an extremely important
right, which must be given full protection by the court, as long as that right
is exercised honestly. Now I honestly have apprehensions, as I am going to
demonstrate just now, that this unfair discrimination throughout my life has
been responsible for very grave injustices, and I am going to contend that that
race discrimination which outside this court has been responsible for all my
troubles, I fear in this court is going to do me the same injustice. Now Your
Worship may disagree with that, but Your Worship is perfectly entitled, in fact,
obliged to listen to me and because of that I feel that Your Worship-

MAGISTRATE: I would like to listen, but I would like you to give me
the grounds for your application for me to recuse myself.

MANDELA: Well, these are the grounds, I am developing them, sir. If
Your Worship will give me time -

MAGISTRATE: I don't wish to go out of the scope of the proceedings.

MANDELA: - Of the scope of the application. I am within the scope of
the application, because I am putting forward grounds which in my opinion are
likely not to give me a fair and proper trial.

MAGISTRATE: Anyway proceed.

MANDELA: As your Worship pleases. I was developing the point that a
judiciary controlled entirely by whites and enforcing laws enacted by a white
parliament in which we have no representation, laws which in most cases are
passed in the face of unanimous opposition from Africans, cannot be regarded as
an impartial tribunal in a political trial where an African stands as an
accused.

The Universal Declaration of Human Rights provides that all men are equal
before the law, and are entitled without any discrimination to equal protection
of the law. In May 1951, Dr D F Malan, then Prime Minister, told the Union
parliament that this provision of the Declaration applies in this country.
Similar statements have been made on numerous occasions in the past by prominent
whites in this country, including judges and magistrates. But the real truth is
that there is in fact no equality before the law whatsoever as far as our people
are concerned, and statements to the contrary are definitely incorrect and
misleading.

It is true that an African who is charged in a court of law enjoys, on the
surface, the same rights and privileges as an accused who is white in so far as
the conduct of this trial is concerned. He is governed by the same rules of
procedure and evidence as apply to a white accused. But it would be grossly
inaccurate to conclude from this fact that an African consequently enjoys
equality before the law.

In its proper meaning equality before the law means the right to participate
in the making of the laws by which one is governed, a constitution which
guarantees democratic rights to all sections of the population, the right to
approach the court for protection or relief in the case of the violation of
rights guaranteed in the constitution, and the right to take part in the
administration of justice as judges, magistrates, attorneys-general, law
advisers and similar positions.

In the absence of these safeguards the phrase 'equality before the law', in
so far as it is intended to apply to us, is meaningless and misleading. All the
rights and privileges to which I have referred are monopolised by whites, and we
enjoy none of them.

The white man makes all the laws, he drags us before his courts and accuses
us, and he sits in judgement over us.

It is fit and proper to raise the question sharply, what is this rigid
colour-bar in the administration of justice? Why is it that in this courtroom I
face a white magistrate, am confronted by a white prosecutor, and escorted into
the dock by a white orderly? Can anyone honestly and seriously suggest that in
this type of atmosphere the scales of justice are evenly balanced?

Why is it that no African in the history of this country has ever had the
honour of being tried by his own kith and kin, by his own flesh and blood?

I will tell Your Worship why: the real purpose of this rigid colour-bar is to
ensure that the justice dispensed by the courts should conform to the policy of
the country, however much that policy might be in conflict with the norms of
justice accepted in judiciaries throughout the civilised world.

I feel oppressed by the atmosphere of white domination that lurks all around
in this courtroom. Somehow this atmosphere calls to mind the inhuman injustices
caused to my people outside this courtroom by this same white domination.

It reminds me that I am voteless because there is a parliament in this
country that is white-controlled. I am without land because the white minority
has taken a lion's share of my country and forced me to occupy poverty-stricken
Reserves, over-populated and over-stocked. We are ravaged by starvation and
disease . . .

MAGISTRATE: What has that got to do with the case, Mr. Mandela?

MANDELA: With the last point, Sir, it hangs together, if Your Worship
will give me the chance to develop it.

MAGISTRATE: You have been developing it for quite a while now, and I
feel you are going beyond the scope of your application.

MANDELA: Your Worship, this to me is an extremely important ground
which the court must consider.

MAGISTRATE: I fully realise your position, Mr Mandela, but you must
confine yourself to the application and not go beyond it. I don't want to know
about starvation. That in my view has got nothing to do with the case at the
present moment.

MANDELA: Well, Your Worship has already raised the point that here in
this country there is only a white court. What is the point of all this? Now if
I can demonstrate to Your Worship that outside this courtroom race
discrimination has been used in such a way as to deprive me of my rights, not to
treat me fairly, certainly this is a relevant fact from which to infer that
wherever race discrimination is practised, this will be the same result, and
this is the only reason why I am using this point.

MAGISTRATE: I am afraid that I will have to interrupt you, and you
will have to confine yourself to the reasons, the real reasons for asking me to
recuse myself.

MANDELA: Your Worship, the next point which I want to make is this: I
raise the question, how can I be expected to believe that this same racial
discrimination which has been the cause of so much injustice and suffering right
through the years should now operate here to give me a fair and open trial? Is
there no danger that an African accused may regard the courts not as impartial
tribunals, dispensing justice without fear or favour, but as instruments used by
the white man to punish those amongst us who clamour for deliverance from the
fiery furnace of white rule. I have grave fears that this system of justice may
enable the guilty to drag the innocent before the courts. It enables the unjust
to prosecute and demand vengeance against the just. It may tend to lower the
standards of fairness and justice applied in the country's courts by white
judicial officers to black litigants. This is the first ground for this
application: that I will not receive a fair and proper trial.

The second ground of my objection is that I consider myself neither morally
nor legally obliged to obey laws made by a parliament in which I am not
represented.

That the will of the people is the basis of the authority of government is a
principle universally acknowledged as sacred throughout the civilised world, and
constitutes the basic foundations of freedom and justice. It is understandable
why citizens, who have the vote as well as the right to direct representation in
the country's governing bodies, should be morally and legally bound by the laws
governing the country.

It should be equally understandable why we, as Africans, should adopt the
attitude that we are neither morally nor legally bound to obey laws which we
have not made, nor can we be expected to have confidence in courts which enforce
such laws.

I am aware that in many cases of this nature in the past, South African
courts have upheld the right of the African people to work for democratic
changes. Some of our judicial officers have even openly criticised the policy
which refuses to acknowledge that all men are born free and equal, and
fearlessly condemned the denial of opportunities to our people.

But such exceptions exist in spite of, not because of, the grotesque system
of justice that has been built up in this country. These exceptions furnish yet
another proof that even among the country's whites there are honest men whose
sense of fairness and justice revolts against the cruelty perpetrated by their
own white brothers to our people.

The existence of genuine democratic values among some of the country's whites
in the judiciary, however slender they may be, is welcomed by me. But I have no
illusions about the significance of this fact, healthy a sign as it might be.
Such honest and upright whites are few and they have certainly not succeeded in
convincing the vast majority of the rest of the white population that white
supremacy leads to dangers and disaster.

However, it would be a hopeless commandant who relied for his victories on
the few soldiers in the enemy camp who sympathise with his cause. A competent
general pins his faith on the superior striking power he commands and on the
justness of his cause which he must pursue uncompromisingly to the bitter end.

I hate race discrimination most intensely and in all its manifestations. I
have fought it all during my life; I fight it now, and will do so until the end
of my days. Even although I now happen to be tried by one whose opinion I hold
in high esteem, I detest most violently the set-up that surrounds me here. It
makes me feel that I am a black man in a white man's court. This should not be.
I should feel perfectly at ease and at home with the assurance that I am being
tried by a fellow South African who does not regard me as an inferior, entitled
to a special type of justice.

This is not the type of atmosphere most conducive to feelings of security and
confidence in the impartiality of a court.

The court might reply to this part of my argument by assuring me that it will
try my case fairly and without fear or favour, that in deciding whether or not I
am guilty of the offence charged by the State, the court will not be influenced
by the colour of my skin or by any other improper motive.

That might well be so. But such a reply would completely miss the point of my
argument.

As already indicated, my objection is not directed to Your Worship in his
personal capacity, nor is it intended to reflect upon the integrity of the
court. My objection is based upon the fact that our courts, as presently
constituted, create grave doubts in the minds of an African accused, whether he
will receive a fair and proper trial.

This doubt springs from objective facts relating to the practice of unfair
discrimination against the black man in the constitution of the country's
courts. Such doubts cannot be allayed by mere verbal assurances from a presiding
officer, however sincere such assurances might be. There is only one way, and
one way only, of allaying such doubts, namely, by removing unfair discrimination
in judicial appointments. This is my first difficulty.

I have yet another difficulty about similar assurances Your Worship might
give. Broadly speaking, Africans and whites in this country have no common
standard of fairness, morality, and ethics, and it would be very difficult to
determine on my part what standard of fairness and justice Your Worship has in
mind.

In their relationship with us, South African whites regard it as fair and
just to pursue policies which have outraged the conscience of mankind and of
honest and upright men throughout the civilised world. They suppress our
aspirations, bar our way to freedom, and deny us opportunities to promote our
moral and material progress, to secure ourselves from fear and want. All the
good things of life are reserved for the white folk and we blacks are expected
to be content to nourish our bodies with such pieces of food as drop from the
tables of men with white skins. This is the white man's standard of justice and
fairness. Herein lies his conceptions of ethics. Whatever he himself may say in
his defence, the white man's moral standards in this country must be judged by
the extent to which he has condemned the vast majority of its inhabitants to
serfdom and inferiority.

We, on the other hand, regard the struggle against colour discrimination and
for the pursuit of freedom and happiness as the highest aspiration of all men.
Through bitter experience, we have learnt to regard the white man as a harsh and
merciless type of human being whose contempt for our rights, and whose utter
indifference to the promotion of our welfare, makes his assurances to us
absolutely meaningless and hypocritical.

I have the hope and confidence that Your Worship will not hear this objection
lightly nor regard it as frivolous. I have decided to speak frankly and honestly
because the injustice I have referred to contains the seeds of an extremely
dangerous situation for our country and people. I make no threat when I say that
unless these wrongs are remedied without delay, we might well find that even
plain talk before the country's courts is too timid a method to draw the
attention of the country to our political demands.

Finally, I need only to say that the courts have said that the possibility of
bias and not actual bias is all that needs be proved to ground an application of
this nature. In this application I have merely referred to certain objective
facts, from which I submit that the possibility be inferred that I will not
receive a fair and proper trial.

MAGISTRATE: Mr. Prosecutor, have you anything to say?

PROSECUTOR: Very briefly, Your Worship, I just wish to point out that there
are certain legal grounds upon which an accused person is entitled to apply for
the recusal of a judicial officer from the case in which he is to be tried. I
submit that the Accused's application is not based on one of those principles,
and I ask the Court to reject it.

MAGISTRATE: [to Mandela] Your application is dismissed. Will you now
plead to your charges?

MANDELA: I plead NOT GUILTY to both charges, to all the charges.

Among the witnesses was Mr. Barnard, the private secretary to the then
Prime Minister, Dr H F Verwoerd, whom Mandela cross-examined on the subject of a
letter sent by Mandela to the Prime Minister demanding a National Convention in
May 1961. In cross-examining the witness, Mandela first read the contents of the
letter:

'I am directed by the All-in African National Action Council to address your
government in the following terms:

'The All-in African National Action Council was established in terms of a
resolution adopted at a conference held at Pietermaritzburg on 25 and 26 March
1961. This conference was attended by 1,500 delegates from town and country,
representing 145 religious, social, cultural, sporting, and political bodies.

'Conference noted that your government, after receiving a mandate from a
section of the European population, decided to proclaim a republic on 31 May.

'It was the firm view of delegates that your government, which represents
only a minority of the population in this country, is not entitled to take such
a decision without first seeking the views and obtaining the express consent of
the African people. Conference feared that under this proposed republic your
government, which is already notorious the world over for its obnoxious
policies, would continue to make even more savage attacks on the rights and
living conditions of the African people.

'Conference carefully considered the grave political situation facing the
African people today. Delegate after delegate drew attention to the vicious
manner in which your government forced the people of Zeerust, Sekhukhuniland,
Pondoland, Nongoma, Tembuland and other areas to accept the unpopular system of
Bantu Authorities, and pointed to numerous facts and incidents which indicate
the rapid manner in which race relations are deteriorating in this
country.
.
'It was the earnest opinion of Conference that this dangerous
situation could be averted only by the calling of a sovereign national
convention representative of all South Africans, to draw up a new non-racial and
democratic Constitution. Such a convention would discuss our national problems
in a sane and sober manner, and would work out solutions which sought to
preserve and safeguard the interests of all sections of the population.

'Conference unanimously decided to call upon your government to summon such a
convention before 31 May.

'Conference further decided that unless your government calls the convention
before the above-mentioned date, countrywide demonstrations would be held on the
eve of the republic in protest. Conference also resolved that in addition to the
demonstrations, the African people would be called upon to refuse to co-operate
with the proposed republic.

'We attach the Resolutions of the Conference for your attention and necessary
action.

'We now demand that your government call the convention before 31 May,
failing which we propose to adopt the steps indicated in paragraphs 8 and 9 of
this letter.

'These demonstrations will be conducted in a disciplined and peaceful manner.

'We are fully aware of the implications of this decision, and the action we
propose taking. We have no illusions about the counter-measures your government
might take in this matter. After all, South Africa and the world know that
during the last thirteen years your government has subjected us to merciless and
arbitrary rule. Hundreds of our people have been banned and confined to certain
areas. Scores have been banished to remote parts of the country, and many
arrested and jailed for a multitude of offences. It has become extremely
difficult to hold meetings, and freedom of speech has been drastically
curtailed. During the last twelve months we have gone through a period of grim
dictatorship, during which seventy-five people were killed and hundreds injured
while peacefully demonstrating against passes.

'Political organisations were declared unlawful, and thousands flung into
jail without trial. Your government can only take these measures to suppress the
forthcoming demonstrations, and these measures have failed to stop opposition to
the policies of your government. We are not deterred by threats of force and
violence made by you and your government, and will carry out our duty without
flinching.'

MANDELA: You remember the contents of this letter?

WITNESS: I do.

MANDELA: Did you place this letter before your Prime Minister?

WITNESS: Yes.

MANDELA: On what date? Can you remember?

WITNESS: It is difficult to remember, but I gather from the date
specified on the date stamp, the Prime Minister's Office date stamp.

MANDELA: That is 24 April. Now was any reply given to this letter by
the Prime Minister? Did he reply to this letter?

WITNESS: He did not reply to the writer.

MANDELA: He did not reply to the letter. Now, will you agree that this
letter raises matters of vital concern to the vast majority of the citizens of
this country?

WITNESS: I do not agree.

MANDELA: You don't agree? You don't agree that the question of human
rights, of civil liberties, is a matter of vital importance to the African
people?

WITNESS: Yes, that is so, indeed.

MANDELA: Are these things mentioned here?

WITNESS: Yes, I think so.

MANDELA: They are mentioned. You agree that this letter deals with
matters of vital importance to the African people in this country? You have
already agreed that this letter raises questions like the rights of freedom,
civil liberties, and so on?

WITNESS: Yes, the letter raises it.

MANDELA: Important questions to any citizen?

WITNESS: Yes.

MANDELA: Now, you know of course that Africans don't enjoy the rights
demanded in this letter. They are denied the rights of government?

WITNESS: Some rights.

MANDELA: No African is a member of parliament?

WITNESS: That is right.

MANDELA: No African can be a member of the Provincial Council, of the
Municipal Councils?

WITNESS: Yes.

MANDELA: Africans have no vote in this country?

WITNESS: They have got no vote as far as parliament is concerned.

MANDELA: Yes, that is what I am talking about, I am talking about
parliament, and other government bodies of the country, the Provincial Councils,
the Municipal Councils. They have no vote?

WITNESS: That is right.

MANDELA: Would you agree with me that in any civilised country in the
world it would be at least most scandalous for a Prime Minister to fail to reply
to a letter raising vital issues affecting the majority of the citizens of that
country. Would you agree with that?

WITNESS: I don't agree with that.

MANDELA: You don't agree that it would be irregular for a Prime
Minister to ignore a letter raising vital issues affecting the vast majority of
the citizens of that country?

WITNESS: This letter has not been ignored by the Prime Minister.

MANDELA: Just answer the question. Do you regard it proper for a Prime
Minister not to respond to pleas made in regard to vital issues by the vast
majority of the citizens of the country? You say that is not wrong?

WITNESS: The Prime Minister did respond to the letter.

MANDELA: Mr. Barnard, I don't want to be rude to you. Will you confine
yourself to answering my questions? The question I am putting to you is, do you
agree that it is most improper on the part of a Prime Minister not to reply to a
communication raising vital issues affecting the vast majority of the country?

WITNESS: I do not agree in this special case, because . . .

MANDELA: As a general proposition? Would you regard it as improper,
speaking generally, for a Prime Minister not to respond to a letter of this
nature, that is, a letter raising vital issues affecting the majority of the
citizens?

PROSECUTOR: (Intervened with objections to the line of
questioning)

MANDELA: You say that the Prime Minister did not ignore this letter?

WITNESS: He did not acknowledge the letter to the writer.

MANDELA: This letter was not ignored by the Prime Minister?

WITNESS: No, it was not ignored.

MANDELA: It was attended to?

WITNESS: It was indeed.

MANDELA: In what way?

WITNESS: According to the usual procedure, and that is that the Prime
Minister refers correspondence to the respective Minister, the Minister most
responsible for that particular letter.

MANDELA: Was this letter referred to another Department?

WITNESS: That is right.

MANDELA: Which Department?

WITNESS: The Department of Justice.

MANDELA: Can you explain why I was not favoured with the courtesy of
an acknowledgement of this letter, and also the explanation that it had been
referred to the appropriate Department for attention?

WITNESS: When a letter is replied to and whether it should be replied
to, depends on the contents of the letter in many instances.

MANDELA: My question is, can you explain to me why I was not favoured
with the courtesy of an acknowledgement of the letter, irrespective of what the
Prime Minister is going to do about it? Why was I not favoured with this
courtesy?

WITNESS: Because of the contents of this letter.

MANDELA: Because it raises vital issues?

WITNESS: Because of the contents of the letter.

MANDELA: I see. This is not the type of thing the Prime Minister would
ever consider responding to?

WITNESS: The Prime Minister did respond.

MANDELA: You say that the issues raised in this letter are not the
type of thing your Prime Minister could ever respond to?

WITNESS: The whole tone of the letter was taken into consideration.

MANDELA: The tone of the letter demanding a National Convention? Of
all South Africans? That is the tone of the letter? That is not the type of
thing your Prime Minister could ever respond to?

WITNESS: The tone of the letter indicates whether, and to what extent,
the Prime Minister responds to correspondence.

MANDELA: I want to put it to you that in failing to respond to this
letter, your Prime Minister fell below the standards which one expects from one
in such a position.

Now this letter, Exhibit 18, is dated 26 June 1961, and it is also addressed
to the Prime Minister, and it reads as follows:

'I refer you to my letter of 20 April 1961, to which you do not have the
courtesy to reply or acknowledge receipt. In the letter referred to above I
informed you of the resolutions passed by the All-in African National Conference
in Pietermaritzburg on 26 March 1961, demanding the calling by your government
before 31 May 1961 of a multi-racial and sovereign National Convention to draw
up a new non-racial and democratic Constitution for South Africa. The Conference
Resolution which was attached to my letter indicated that if your government did
not call this convention by the specific date, countrywide demonstrations would
be staged to mark our protest against the White republic forcibly imposed on us
by a minority. The Resolution further indicated that in addition to the
demonstrations, the African people would be called upon not to co-operate with
the republican government, or with any government based on force. As your
government did not respond to our demands, the All-in African National Council,
which was entrusted by the Conference with the task of implementing its
resolutions, called for a General Strike on the 29, 30 and 31 of last month. As
predicted in my letter of 30 April 1961, your government sought to suppress the
strike by force. You rushed a special law in parliament authorising the
detention without trial of people connected with the organisation of the strike.
The army was mobilised and European civilians armed. More than ten thousand
innocent Africans were arrested under the pass laws and meetings banned
throughout the country. Long before the factory gates were opened on Monday, 29
May 1961, senior police officers and Nationalist South Africans spread a
deliberate falsehood and announced that the strike had failed. All these
measures failed to break the strike and our people stood up magnificently and
gave us solid and substantial support. Factory and office workers, businessmen
in town and country, students in university colleges, in the primary and
secondary schools, rose to the occasion and recorded in clear terms their
opposition to the republic. The government is guilty of self-deception if they
say that non Europeans did not respond to the call. Considerations of honesty
demand of your government to realise that the African people who constitute
four-fifths of the country's population are against your republic. As indicated
above, the Pietermaritzburg resolution provided that in addition to the
countrywide demonstrations, the African people would refuse to co-operate with
the republic or any form of government based on force. Failure by your
government to call the convention makes it imperative for us to launch a
full-scale and countrywide campaign for non-co-operation with your government.
There are two alternatives before you. Either you accede to our demands and call
a National Convention of all South Africans to draw up a democratic
Constitution, which will end the frightful policies of racial oppression pursued
by your government. By pursuing this course and abandoning the repressive and
dangerous policies of your government, you may still save our country from
economic dislocation and ruin and from civil strife and bitterness.
Alternatively, you may choose to persist with the present policies which are
cruel and dishonest and which are opposed by millions of people here and abroad.
For our own part, we wish to make it perfectly clear that we shall never cease
to fight against repression and injustice, and we are resuming active opposition
against your regime. In taking this decision we must again stress that we have
no illusions of the serious implications of our decision. We know that your
government will once again unleash all its fury and barbarity to persecute the
African people. But as the result of the last strike has clearly proved, no
power on earth can stop an oppressed people determined to win their freedom.
History punishes those who resort to force and fraud to suppress the claims and
legitimate aspirations of the majority of the country's citizens.'

MANDELA: This is the letter which you received on 28 June 1961? Again
there was no acknowledgement or reply by the Prime Minister to this letter?

WITNESS: I don't think it is - I think it shouldn't be called a letter
in the first instance, but an accumulation of threats.

MANDELA: Whatever it is, there was no reply to it?

WITNESS: No.

Another witness to be called was Warrant Officer Baardman, member of the
police Special Branch in Bloemfontein. He was cross-examined by Mandela:

MANDELA: Is it true to say that the present constitution of South
Africa was passed at a National Convention representing whites only?

WITNESS: I don't know, I was not there.

MANDELA: But from your knowledge?

WITNESS: I don't know, I was not there.

MANDELA: You don't know at all?

WITNESS: No, I don't know.

MANDELA: You want this court to believe that, that you don't know?

WITNESS: I don't know, I was not there.

MANDELA: Just let me put the question. You don't know that the
National Convention in 1909 was a convention of whites only?

WITNESS: I don't know, I was not there.

MANDELA: Do you know that the Union Parliament is an all-White
parliament?

WITNESS: Yes, with representation for non-Whites.

MANDELA: Now, I just want to ask you one or two personal questions.
What standard of education have you passed?

WITNESS: Matriculation.

MANDELA: When was that?

WITNESS: In 1932.

MANDELA: In what medium did you write it?

WITNESS: In my mother tongue. (Here the witness meant
Afrikaans.)

MANDELA: I notice you are very proud of this?

WITNESS: I am.

MANDELA: You know of course that in this country we have no language
rights as Africans?

WITNESS: I don't agree with you.

MANDELA: None of our languages is an official language, for example.
Would you agree with that?

WITNESS: They are perhaps not in the Statute Book as official
languages, but no one forbids you from using your own language.

MANDELA: Will you answer the question? Is it true that in this country
there are only two official languages, and they are English and Afrikaans?

WITNESS: I agree entirely. By name they are the two official
languages, but no one has ever forbidden you to use your own language.

MANDELA: Is it true that there are only two official languages in this
country, that is English and Afrikaans?

WITNESS: To please you, that is so.

MANDELA: Is it true that the Afrikaner people in this country have
fought for equality of English and Afrikaans? There was a time, for example,
when Afrikaans was not the official language in the history of the various
colonies, like the Cape?

WITNESS: Yes, I agree with you entirely. Constitutionally, the
Afrikaner did fight for his language but not through agitators.

On the third day of the trial Mandela again applied for the recusal of the
magistrate.

MANDELA: I want to make application for the recusal of Your Worship
from this case. As I indicated last Monday, I hold Your Worship in high esteem,
and I do not for one single moment doubt Your Worship's sense of fairness and
justice. I still do, as I assured Your Worship last Monday. I make this
application with the greatest of respect. I have been placed in possession of
information to the effect that after the adjournment yesterday, Your Worship was
seen leaving the courtroom in the company of Warrant Officer Dirker of the
Special Branch, and another member of the Special Branch. As Your Worship will
remember, Warrant Officer Dirker gave evidence in this case on the first day of
the trial. The State Prosecutor then indicated that he would be called later, on
another aspect of this case. I was then given permission by the court to defer
my cross examination of this witness until then. The second member of the
Special Branch who was in the company of Your Worship, has been seen throughout
this trial assisting the State Prosecutor in presenting the case against me.
Your Worship was seen entering a small blue Volkswagen car; it is believed that
Your Worship sat in front, as Warrant Officer Dirker drove the car. And this
other member of the Special Branch sat behind. At about ten to two Your Worship
was seen returning with Warrant Officer Dirker and this other member of the
Special Branch.

Now, it is not known what communication passed between Your Worship and
Warrant Officer Dirker and this other member of the Special Branch. I, as an
accused, was not there, and was not represented. Now, these facts have created
an impression in my mind that the court has associated itself with the State
case. I am left with the substantial fear that justice is being administered in
a secret manner. It is an elementary rule of justice that a judicial officer
should not communicate or associate in any manner whatsoever with a party to
those proceedings. I submit that Your Worship should not have acted in this
fashion, and I must therefore ask Your Worship to recuse yourself from this
case.

MAGISTRATE: I can only say this, that it is not for me here to give
you any reasons. I can assure you, as I here now do, that I did not communicate
with these two gentlemen, and your application is refused.

Another police witness was Mr. A Moolla, an Indian member of the Special
Branch, who was also cross-examined by Mandela:

MANDELA: You know about the Group Areas Act?

WITNESS: I do.

MANDELA: You know that it is intended to set certain areas for
occupation by the various population groups in the country?

WITNESS: Yes, I do know.

MANDELA: And you know that it has aroused a great deal of feeling and
opposition from the Indian community in this country?

WITNESS: Well, not that I know of. I think that most of the Indians
are satisfied with it.

MANDELA: Is this a sincere opinion?

WITNESS: That is my sincere opinion, from people that I have met.

MANDELA: And are you aware of the attitude of the South African Indian
Congress, about the Group Areas?

WITNESS: Yes.

MANDELA: What is the attitude of the South African Indian Congress?

WITNESS: The South African Indian Congress is against it.

MANDELA: And the attitude of the Transvaal Indian Congress?

WITNESS: Also.

MANDELA: They are against it?

WITNESS: Yes.

MANDELA: And the Transvaal Indian Youth Congress?

WITNESS: Also.

MANDELA: The Cape Indian Assembly, also against it?

WITNESS: Yes. Well, the Cape Indian Assembly I do not know about.

MANDELA: Well, you can take it from me that it is against it. Now, of
course, if the Group Areas Act is carried out in its present form, it means that
a large number of Indian merchants would lose their trading rights in areas
which have been declared White Areas?

WITNESS: That is right.

MANDELA: And a large number of members of the Indian community who are
living at the present moment in areas which might or have been declared as White
Areas, would have to leave those homes, and have to go where they are to be
stationed?

WITNESS: I think they will be better off than where . . .

MANDELA: Answer the question. You know that?

WITNESS: Yes, I know that.

MANDELA: You say that the Indian merchant class in this country, who
are going to lose their business rights, are happy about it?

WITNESS: Well, not all.

MANDELA: Not all. And you are saying that those members of the Indian
community who are going to be driven away from the areas where they are living
at present would be happy to do so?

WITNESS: Yes, they would be.

MANDELA: Well, Mr. Moolla, I want to leave it at that, but just to say
that you have lost your soul.

Following the closure of the prosecution case against him, Mandela
addressed the court:

I am charged with inciting people to commit an offence by way of protest
against the law, a law which neither I nor any of my people had any say in
preparing. The law against which the protest was directed is the law which
established a republic in the Union of South Africa. I am also charged with
leaving the country without a passport. This court has found that I am guilty of
incitement to commit an offence in opposition to this law as well as of leaving
the country. But in weighing up the decision as to the sentence which is to be
imposed for such an offence, the court must take into account the question of
responsibility, whether it is I who is responsible or whether, in fact, a large
measure of the responsibility does not lie on the shoulders of the government
which promulgated that law, knowing that my people, who constitute the majority
of the population of this country, were opposed to that law, and knowing further
that every legal means of demonstrating that opposition had been closed to them
by prior legislation, and by government administrative action.

The starting point in the case against me is the holding of the conference in
Pietermaritzburg on 25 and 26 March last year [1961], known as the All-in
African Conference, which was called by a committee which had been established
by leading people and spokesmen of the whole African population, to consider the
situation which was being created by the promulgation of the republic in the
country, without consultation with us, and without our consent. That conference
unanimously rejected the decision of the government, acting only in the name of
and with the agreement of the white minority of this country, to establish a
republic.

It is common knowledge that the conference decided that, in place of the
unilateral proclamation of a republic by the white minority of South Africans
only, it would demand in the name of the African people the calling of a truly
national convention representative of all South Africans, irrespective of their
colour, black and white, to sit amicably round a table, to debate a new
constitution for South Africa, which was in essence what the government was
doing by the proclamation of a republic, and furthermore, to press on behalf of
the African people, that such new constitution should differ from the
constitution of the proposed South African Republic by guaranteeing democratic
rights on a basis of full equality to all South Africans of adult age. The
conference had assembled, knowing full well that for a long period the present
National Party Government of the Union of South Africa had refused to deal with,
to discuss with, or to take into consideration the views of, the overwhelming
majority of the South African population on this question. And, therefore, it
was not enough for this conference just to proclaim its aim, but it was also
necessary for the conference to find a means of stating that aim strongly and
powerfully, despite the government's unwillingness to listen.

Accordingly, it was decided that should the government fail to summon such a
National Convention before 31 May 1961, all sections of the population would be
called on to stage a general strike for a period of three days, both to mark our
protest against the establishment of a republic, based completely on white
domination over a non-white majority, and also, in a last attempt to persuade
the government to heed our legitimate claims, and thus to avoid a period of
increasing bitterness and hostility and discord in South Africa.

At that conference, an Action Council was elected, and I became its
secretary. It was my duty, as secretary of the committee, to establish the
machinery necessary for publicising the decision of this conference and for
directing the campaign of propaganda, publicity, and organisation which would
flow from it.

The court is aware of the fact that I am an attorney by profession and no
doubt the question will be asked why I, as an attorney who is bound, as part of
my code of behaviour, to observe the laws of the country and to respect its
customs and traditions, should willingly lend myself to a campaign whose
ultimate aim was to bring about a strike against the proclaimed policy of the
government of this country.

In order that the court shall understand the frame of mind which leads me to
action such as this, it is necessary for me to explain the background to my own
political development and to try to make this court aware of the factors which
influenced me in deciding to act as I did.

Many years ago, when I was a boy brought up in my village in the Transkei, I
listened to the elders of the tribe telling stories about the good old days,
before the arrival of the white man. Then our people lived peacefully, under the
democratic rule of their kings and their amapakati, and moved freely and
confidently up and down the country without let or hindrance. Then the country
was ours, in our own name and right. We occupied the land, the forests, the
rivers; we extracted the mineral wealth beneath the soil and all the riches of
this beautiful country. We set up and operated our own government, we controlled
our own armies and we organised our own trade and commerce. The elders would
tell tales of the wars fought by our ancestors in defence of the fatherland, as
well as the acts of valour performed by generals and soldiers during those epic
days. The names of Dingane and Bambata, among the Zulus, of Hintsa, Makana,
Ndlambe of the AmaXhosa, of Sekhukhuni and others in the north, were mentioned
as the pride and glory of the entire African nation.

I hoped and vowed then that, among the treasures that life might offer me,
would be th