After the escape of Tim, Stephen and Alex we who remained behind bore the consequences. The prison was rebuilt and we politicals were held in another prison known as Beverley Hills, gallows’ humour for the death-cells. It was an awful place, with about 150 hangings a year. That’s two or three hangings every week.
There were some of our brave comrades on death row. While they awaited their executions, on many evenings they sang our freedom songs in the most beautiful harmony. I tried to play the melodies on my recorder. Though I am no singer, I could answer them with my recorder. I was reminded of this many years later. After Nelson Mandela’s release there was a “meet the media day” for him and other political prisoners on Robben Island. I saw the island prison for the first time. A younger man, James Mange, with Rastafarian dreadlocks, came up and asked if I was Comrade Denis Goldberg. I said I was and he greeted me as the penny-whistle player from Beverley Hills. My musical answer in the deathly nights had told them that I was still alive and that strengthened them and all had listened to me play. I felt deeply honoured. I am not a natural musician and have little talent for music. But in prison I was able to bring music and music notation together, note for note, until I could play a whole song. In those dark nights I discovered for myself how to express emotions in music. One plays some notes longer or shorter, higher or lower (sharper or flatter) or louder or softer, and one’s feelings stream into the sounds you are making. You just have to let it happen. I tried to say farewell to my comrades when we knew we were to be taken away from that prison. We might never see each other again.
While we were in Beverley Hills, some of our MK comrades were on death row: Simon Moegerane, Jerry Mosololi, Marcus Motaung and six others. They sang most nights - freedom songs. Their singing was quite different from the hymn singing of the other prisoners. It was very disciplined, lasting 20 minutes to half an hour of the most beautiful harmonies in the evening, shortly before the 8 o’clock bell for lights out. Gradually all the prisoners in the prison learned the songs too. Their singing was courageous. They sang of their pride in being in the struggle. There were songs from the 1950s and 1960s which I knew quite well and there were songs which came from our MK camps in Angola and elsewhere. They had new melodies and new thoughts.
One particular song affected me deeply. It was an adaptation of a song from Zimbabwe’s Chimurenga War. They sang: “Long live, Comrade Ruth First. Long live. We shall never forget you. Long live, Comrade Ruth First.” And “Long live, Comrade Saloojee. Long live. We shall never forget you. Long live, Comrade Saloojee.”. And for Solomon Mahlangu, Vuyesile Mini, Khayinga, Mkaba and others who had been assassinated, killed or executed by the apartheid regime. Then they would sing of the great leaders who had died, people like Moses Kotane. The singing reflected their sorrow at the human cost of the struggle for freedom. Then the singing would change into a more upbeat mood as they sang in a clipped, optimistic style: “Long live, Comrade Joe Slovo. Long live. We shall ever remember. Long live, Comra-ade Joe.” Long live Comrade Mandela, Sisulu, and others who were in prison - and then the verse I found most moving: “Long live, the ANC. Long live. We shall ever remember, long live the ANC.” They were men who faced death with courage and optimism about reaching the goals for which they were prepared to die. I know this sounds sentimental and there will be those who say how childish or blind we all were. Yet, hearing them sing with such control in a variety of moods and shifting stresses, you could not help but be moved by their understanding, their commitment, and their courage, which was not the bravado of weak defiance. These were men who knew what they were doing and why they had been doing it.
Their singing would end each evening with the National Anthem Nkosi Sikalel’ i’Afrika and the Internationale. Sometimes the one and sometimes the other would be the last song. The mixture of national liberation (God, bring back Africa) and of class politics (Arise ye toilers of the earth) seemed to me to encapsulate the multiple strands within the liberation movement. Nationalism and internationalism and resistance to national oppression as the expression of class oppression in the particular context of South African politics and society –all were there in the songs they sang.
James Mange and others had their death sentences commuted to life imprisonment, but some were hanged. During the time in Beverley Hills it did not matter to me whether the warders approved of me playing freedom songs or whether they would punish me. They did nothing. However, just after I was sentenced to life imprisonment in 1964 there were three ANC comrades from Port Elizabeth sentenced to death. Among them was Vuyisile Mini, a noted freedom song-writer and composer. They sang the Red Flag and the Internationale, Nkosi Sikalele i’Afrika and many other songs through the whole night before they were hanged. My fellow prisoners were terribly afraid of the warders who had been giving them such a hard time and they would not join in the singing. They insisted that I too should not sing along because we would all be punished. I submitted to their wishes. I had only just escaped the death penalty myself and was not in the best of shape. Courage is a fluctuating and relative thing, not a permanent quality. Even political prisoners are not always brave. Revolutionaries are not superhuman. They too suffer and weep. I did not sing with them and I regret it to this day. Vuyisile Mini, Wilson Khayinge and Zinakile Mkaba were executed on 4 November 1964.
In June 1964 after I was sentenced I had been near the death cells in the old Pretoria Central prison. Only one white man was executed while we were in Central prison in 1964/5. His special music request programme was a strange mixture of hymns and country-and-western sentimental songs. He was allowed to broadcast a message expressing sorrow for his wrongdoing. The prisoners around us were not overawed by the execution at all. He had gone to the gallows like man should, filled with bravado. There was little comment about just deserts or dignity, only remarks about how brave he was.
Once we heard a woman shrieking in fear as she was taken to the gallows. Warders told us she had to be carried on a stretcher. The white criminal prisoners we were with at Central Prison found it amusing to hear her, making sickening racist remarks. Executions were not carried out immediately after sentence had been passed. There was a long procedure of judicial review and prisoners were kept on death row for many months before the death sentences were confirmed. In the late afternoon the sheriff would inform those who were to die the next morning. The condemned men would start singing hymns. At first the singing would be hesitant, but gradually as the prison quietened down the singing would become more full-bodied with perhaps 3 000 ordinary criminal prisoners voices singing hymns together. The singing seemed to me to be a sign of helplessness and hopelessness. Whatever the words of the hymns, the singing had the sound of “I’m going nowhere”. The hymns, of course, were about joining God in the life hereafter, but the singing was filled with such despair that it was terrible to live through. It was worse for those who were about to die, but it was awful to hear it and share it week after week.
We stayed out of our exercise yard when the maintenance work on the gallows started. We couldn’t handle that. We heard the preparations and the singing all night long until the early morning when the trap-doors slammed open. We were still in our cells when the executions took place. The non-stop singing would stop as though turned off by a switch. The following silence had a feeling of exhaustion, of nothingness, of emotional emptiness. It was dreadful. Slowly you regain your composure and life goes on until the next week.
It is a great thing that our Constitution now prohibits the imposition of the death penalty and I cannot believe that there are people who want to reintroduce it. It did not stop crime before and it will not stop it in future. All it does is to make the state and the officials who carry out the deed - and indeed the whole society - more callous, more indifferent to life itself.
A case for news
From the beginning of my time as a convicted prisoner the authorities tried to cut me and all of us off from news of the outside world. One official said that if we were safe-breakers they would not give us locks and keys to play with. Since we were political activists they would not allow us to be informed about political news. Letters were censored and visits closely monitored. One of my visitors was stopped when she tried to tell me that during the popular television series, World at War, a history of WW2, so many people went to the toilet during ad breaks that in large cities the water pressure fell. We were not permitted to talk about “WW2 or any war.” In 1976 the United States celebrated the bicentenary of its Declaration of Independence. The censors felt we should not know about that and cut out an item about it in the Readers Digest.
We were allowed to study through the University of South Africa. Books we needed for study assignments were provided by the Unisa library. The sergeant in charge of our studies had middle school education. He decided if a book was suitable or not. Many books were withheld and returned to the Unisa Library unread. Colonel Aucamp once told me that I would be allowed to get more books when I had “used up” those I already had. Bram, through his daughter Ilse, asked Arthur Chaskalson if there was an arguable case to put to a court to win the right of access to news. He replied that there was a very weak case. Bram did not want to embarrass his fellow advocate by asking him to argue a weak case and allowed the matter to drop.
The censorship became ever more absurd and even the most innocuous magazines were mutilated. Bram had died (this was mid-1970s) and I was less squeamish and believed that because the censorship had become so ridiculous we had nothing to lose by bringing a case against the authorities for access to news. I was studying law and believed that there was a possible arguable case in administrative law in which Parliament delegates the making of rules and regulations to officials. My fellow prisoners agreed that I should explore the matter. Hillary at my request found an attorney who was prepared to act for us. I knew the likelihood of winning was small, but an arguable case would so embarrass the ruling party that its intellectuals might press for us to have access to newspapers. There were judges who felt keenly embarrassed by overzealous officials. Only very rarely would a judge in this kind of case order an official with delegated powers to grant what one demanded. More often the judge would say that, even if an official had made a shocking ruling, the court hoped that he might reconsider the matter and come to a different decision.
The attorney, Raymond Tucker, one of the few human rights lawyers at that time, came to see me. We sat opposite each other at a table with the commanding officer, Captain Schnepel, sitting between us at the end of the table, his head partially blocking our view of each other. Prison rules permitted this absurd situation. In criminal matters legal visits were to take place within sight of, but not within hearing of a state official. In the case of civil matters the legal consultation was to take place within the sight and hearing of an official. But in this matter the prison authorities were going to be the respondents and should not be allowed to be present. I instructed our attorney to go to court to get a ruling on this procedural matter. Let us kick off by embarrassing our opponents, I thought. Raymond duly returned with the matter resolved in our favour but not as a result of a court ruling.
A court application would have embarrassed him because one is expected to exhaust administrative avenues before approaching a court. He wrote to the commissioner of prisons, who accepted that we could consult without an official present. Even though I knew that the room in which we met was bugged I explained the situation for which the court should be asked to provide relief. I had kept records of the censorship because we were not allowed to keep the magazines beyond a few days. Title, volume number, page number, column number and the position in millimeters from the top of the column to the end of the excision were recorded. It was expressly forbidden for me to give him my notes and they had to be read aloud while he made his notes. It was a long-winded and tiresome business. He brought a tape recorder to the next visit to speed up the process. The tape recorder was forbidden for future visits. We agreed he would brief Advocate Sidney Kentridge and after a few weeks he brought his opinion, which was that we indeed had an arguable case. Now my fellow prisoners were brought in and we each prepared sworn statements describing who we were and for what we had been sentenced and for what length of time. We asked the court to declare that we be entitled to receive newspapers from outside sources, to receive magazines and journals of our choice, that our letters and visits be censored only to preserve prison security. The legal language and the alternatives were much more detailed. The case number M776/77 was brought in the Supreme Court Transvaal Provincial Division, Pretoria, by Denis Goldberg and Eight others against the Minister of Prisons, Commissioner of Prisons and the Officer Commanding Pretoria Prison.
Raymond Tucker acquired two back copies of each of the publications we had chosen as examples of the censorship. One copy he marked up, he said, and the other was cut up according to my recorded details. From my side it was a blind choice because I did not know what had been cut out. In the course of my statement, which was the founding affidavit of our case, I said that in comparison with other prisoners we were treated more harshly and the deprivation of news of every kind, not only political news, and the effects this had on maintaining meaningful contact with our wives, family and friends was a punishment additional to our loss of liberty. Judge Curlewis heard the case and was extremely hostile to us. In the course of his judgment, dated 5 August 1977, he gave the Commissioner of Prisons almost unhindered power to treat us in any way he wished. In the course of dismissing our application Judge Curlewis said: “It is clear to me that a prisoner’s punishment is not to be found merely in the fact that he is deprived of his liberty: this seems to be the view of the First Applicant and appears to be the view of certain other people. He is quite wrong. A convicted person sent to prison cannot expect to live in prison as he lived outside prison. A prison is not a hotel from which egress is barred.” He did not need to tell us we did not live in a five-star hotel merely lacking the keys to go home. We knew that.
At one point the Judge said that the Commissioner had said he prohibits certain publications, but he did not mean to say that because what he really meant to say in his sworn statement was that he did not permit certain magazines. The judge frequently went out of his way to find arguments to support the authorities, even where they had not relied on such intellectual gymnastics. He even said that the treatment of prisoners is to be decided upon by the Commissioner though that treatment “cannot be contrary to the (Prisons) Act and Regulations.” However, “In view of the fact that the Regulations themselves give him the right to prescribe rules and conditions, such a qualification is more apparent than real.” Our lawyers said that we could not allow that judgment to stand unchallenged because of the wide powers it gave the authorities. Therefore we had to appeal to the Appellate Division of the Supreme Court, the highest court in the land.
The appeal took many months and was argued in the Appellate Division before five judges on 15 May 1978. Judgment was delivered on 26 September 1978. I thoroughly enjoyed the whole process because it was intellectually challenging and it brought the outside world into the prison. What is more, we were fighting back. We quoted from the UNESCO Minimum Rules for prisons that required that prisoners be kept informed about domestic and international news so that they would be familiar with the world when they re-entered it on their release. We found it very difficult to get hold of the full document. (There was no internet in those days.) The state’s lawyers objected to this quotation without the original document. Our lawyers said we would have to accept that we were relying on hearsay and withdraw the assertion. I insisted we do not withdraw it and I made use of the bugging microphones by saying that the state’s lawyers knew that what we said was true. If they wished to be dishonest they could be but in the meantime we would continue to try to get the document we needed. The state’s lawyers withdrew their objection.
One of the ways we tried to overcome this difficulty was to ask experts in other countries to send us sworn affidavits about conditions in prisons elsewhere in the world. Rev Paul Oestreicher, the Director of Amnesty International, sent an affidavit that described the conditions under which political prisoners were held in various countries. They all had access to news. At the end, however, he stated that he could not get permission from the Soviet authorities to enter their country and therefore could not personally ascertain how they treated their political prisoners. He went on to launch a scathing attack on the Soviet Union’s treatment of prisoners. My comrades were very upset by this and insisted on ideological grounds that it could not be used. That led to Sean Hosey withdrawing from the case. My view was that it would not serve our strategic purpose to use this particular affidavit. Our media would have seized on the Cold War titbit of the attack based on hearsay on the Soviet Union, forgetting that it was our conditions that our court case was about. It would have been the ultimate red herring. I could imagine newspaper stories urging the authorities to send us to Russia to see if we would like it there! Our purpose was to embarrass the apartheid government, not give them the media escape they needed.
We finally got the original Unesco Minimum Rules in time to present them to the Appeal Court. As it happened, the South African Commissioner of Prisons had played a leading role in drawing up this document and they would have looked utterly absurd had they objected to our reliance on that document.There was also a startling development: the prison authorities started to broadcast the news bulletins of the Government-owned and controlled South African Broadcasting Corporation. The bulletins were censored and sometimes we got only the weather report and the rugby or cricket scores. And if the Springboks lost to some boycott-busting pirate team, we would get only the weather report.
Acting Chief Justice Wessels, after careful analysis of the law, concluded that the Commissioner did have sole discretion to determine how any prisoner should be treated but that treatment must not be inconsistent with the law. Then comes the passage we hoped for: “The fact that this court may, on the information placed before it, entertain grave doubts (emphasis added) as to the wisdom or reasonableness of the determination made by the Commissioner in regard to the appellants’ access to news … is a factor which the Commissioner may possibly take into account when his earlier determination comes to be reconsidered.”
He said further that “… interference by the court in a case such as this on the ground of unreasonableness is only justified if it is gross to so striking a degree as to warrant the inference that the repository power has acted in bad faith and from an ulterior or improper motive …” – and he concluded: “In my opinion, the evidence does not in this case establish by a preponderance of probabilities the requisite degree of unreasonableness warranting the inference contended for on appellants’ behalf.” It was interesting to see that the judge had “grave doubts” but thought them not to be of “so striking a degree” as to warrant interference. How “grave” must the doubts be, to be considered to be serious enough to warrant intervention by the court?
The Acting Chief Justice specifically said that Judge Curlewis’s view of a virtually unfettered power was wrong. It was also quite clear that Acting Chief Justice Wessels politely suggested that the Commissioner should reconsider the matter and come to a different conclusion, i.e. that we have access to news. Judge Corbett delivered a dissenting judgment which, if followed, would have given us everything we asked for. He relied on a civil rights argument based on the internationally established opinion that basic civil rights can only be taken away by explicit legislation. Therefore a prisoner has all the rights he had before being imprisoned, except for those taken away by legislation or by necessary implication. If you are to be locked up, by necessary implication you cannot have the keys to your prison. Judge Corbett also found something amiss in the responses of the authorities to provide documentation of the Commissioner of Prison’s instructions regarding censorship. Judge Curlewis in the first hearing said it was unseemly for counsel on both sides to argue about such a procedural matter. A senior prison officer had given sworn testimony to the existence of the documentation and that, said Judge Curlewis, was sufficient evidence as to its existence! Judge Corbett found this very strange and took the opposite view, namely that there was no such instruction from the Commissioner and that the censorship was indeed arbitrary, as shown by the examples of censorship our side had presented to the court
John Dugard, a highly regarded academic civil rights lawyer, wrote up the case which gained considerable publicity. Jane Dugard, his wife, had visited me a few times until she was prohibited because, it was said, she was not a first degree family member. I believe it was because she was the wife of John Dugard.
Then the Acting Chief Justice came to see me, together with General Roux, the first Deputy Commissioner. The General was also Chairperson of a Branch of the ruling (Afrikaner) National Party. He served on President PW Botha’s State Security Council. Slapping General Roux familiarly on the thigh Justice Wessels said that he was sure that “this young man” would see to it that we got newspapers and magazines of our choice. In his written judgment he said that he had no basis in law for interfering and then interfered in an informal way on our behalf. Even judges, like lovers, can say “no” and mean “yes”, or “perhaps” may mean “definitely”. In September 1980 Brigadier Gericke called me in to say we could order newspapers. At my request he repeated the announcement to all of us assembled together. My fellow prisoners showed no excessive gratitude but simply acknowledged the fact. The details were discussed and it was ruled that we could buy and read all newspapers and magazines available on ordinary bookstalls and they would not be censored. The SABC’s news bulletins were also played uncensored. Hearing them we came to the conclusion that the news was so slanted even the antenna masts must have leaned to the right.
Between us we ordered all the daily and weekend papers available. I ordered the Government supporting Beeld daily and Rapport on Sundays. I spoke and read Afrikaans fluently and felt it was important to know what “the enemy” was thinking and doing. David Rabkin ordered the Weekly Guardian which gave us exceptional access to news with its articles from that paper in Britain, from the French Le Monde and the US Washington Post. I read all the papers voraciously, including all the large and small advertisements and notices.
Thus, after 16 years, we achieved the last of the ten things I had requested shortly after I was sentenced in 1964. I am glad I had half a law degree. I was even more pleased that there were good lawyers prepared to represent us. I never asked Raymond Tucker who had paid the costs of the legal action we had brought in two courts. He simply told me that the legal fees and expenses had been taken care of. When we were later able to read newspapers as a result of the legal action it was clear that funds were flowing in from abroad for the legal defence of opponents of apartheid because apartheid Government sources regularly attacked the lawyers who had the courage to defend our activists. They ran campaigns vilifying the lawyers, accusing them of racketeering through overcharging, and their hit squads murdered lawyers such as Griffiths and Victoria Mxenge. We “knew” they had to have done these brutal things though the proof came much later, after the end of apartheid, through the hearings of the Truth and Reconciliation Commission. I also now know that the funds probably came from the International Defence and Aid Fund.