24211.

MR. MAISaJLS i May it please Your Lordships. I now

intend to deal with he policy documents of the African National Congress, and the first enquiry is, what has been proved to bo the policy making body of the African National Congress. There is only one policy making body, My Lords, and that is the National Conference. That fact has been plainly established, My Lord, by the uncontradicted evidence of witnesses who know, and who really cannot be and weren't challenged on this points and secondly by the Constitution of the African National Congress itself.

Now, My Lord, I do not know whether Your Lordships wish me to give Your Lordships the references on this point....? MR. JUSTICE RUMPFF s

If you hav>j them, yes. MR. MuISjjLS t

Iuthuli, My Lord, page - I don't propose reading them unless Your Lordship wishes me to d so. There is really no dispute. Luthuli, page 11424/5, 11457? Yengwa, Volume 83, page 17504/5? Matthews, Volume 85, 17907; Conco, Volume 57, 11401, 11402/3? Mandela, Volume 75, pages 15912/3.

The Constitution itself, My Lords, make this clear. Exhibit A. 15, clause 7, Volume 57, page 11429, line 14. The National Conference shall be the supreme body of Congress and shall determine its general policy and programme. And then it deals with the Conference. The National Executive Committee, My

24212.

Lord is appointed in terms of Clause 8, and the Working Committee in terms of Clause 9. They are the Executive bodies, they carry out the policies of the organisation, and have no pow-r whatsoever to vary the decisions or policy as laid down by the National Conference. The reference to that, My lord, is the Constitution itself, the two clauses, and then there is the evidenceof Luthuli, Volume 57, pages 11424/5 and 11636/7? and Professor Matthews Volume 86 page 18032/3. MR. JUSTICE JilKiaK :

Is there anything in the Constitution precluding Provincial Conferences from adopting a different policy, or have the got autonomous power in the sense that they can formulate their own policy at variance with the African National Congress National Conference? MB. MnIS-^LS :

I haven't considered that point specifi-cally, My Lord, "but th^re are references to Provincial Committees, and with their powers, and if one reads the Conference ? Constitution as a whole, there can "be no doubt that there is only one policy making body. My Lord, if one looks, for example ... ME. JUoiICJ J.jKECbL s

So in other words, the policy of the National Conference ipso facto becomes th policy of the Provincial Conference. MR. MaISJLS S

They can't adopt a different policy, My Lord. Your Loi dship will see, page 11428 talks about

24213.

Provincial Conferences electing Provincial Committees, that is what they are.

Constitutionally, My Lord, it therefore cannot bo denied that the policy making body is the National Conference, and the evidence is unanimous, there is only one policy making body in the A.N.C. My Lord, it is not Liberation, it is not Now ;».ge, and it is not Fighting Talk. It is not even the ^i.N.C.Y.L. and it is not even the Women's Organis ition, and still less is it Ruth First. The policy making body of the A.N.C. is the National Conference, And the function, My Lord, of the A.N.C.Y.L., the Youth League, is that of an auxilliary body, so stated by Prof ssor Matthews, volume 86, page 18036/7.

ME. JUSTICE jjjjKKdR s The A.N.C.Y.L. had its own Constitution?

MR. MnIS-tiLS 2 Yes, My Lord, I think the reference is

,,.204. MR. J US TIC J B̂ IQGiiR ;

.und could you tell mo offhand what is therein contained as regards policy making? MR. M-nIo jLS s

No, M v Lord, I can't. MR. JUSTICE l^KICI, s

There is so-ie document, I don't know whether it is this one, in which th^re is a discussion that the -u.N.O.Y.L. is inclined to make its own policy and they must remoter it is subject to the policy of ...

24214.

MR. MAIS^LS s Yes, My Lord, I have a reference -

nay I just look two references up and perhaps I nay be able to givu it to Your Lordship. Volume 5, page 850 is a.204, and this is : "Conference . . . . . .

the resolution adopted at the Annual Conference of the A.N.C.Y.I, held on the 4-5th April, 1953..." - I think My Lord, that is what Your Lordship may be referring to. "Conference wishes to issue a warning to Provincial and local branches of the League which imagine they can formulate their own individual policies. The policy of the Youth League is that which is formulated and declared at National Conference from time to time".

My Lord, the reference to Professor Matthews is 18036/7, and perhaps I should just read that short passage. In was in cross-examination, when my learned friend was endeavouring to show hovylmportant a man called Tshume is. He said s

"Let us consider his position, Professor. He was for a while the acting President of the African National

Congress Youth League in 1954—1955? Yes. You appreciate of course that the Youth League is merely an auxilliary of the A.N.C." "Yes? It is net the A.N.J. It is just an auxilliary body". MR. JUSTICE RUMPFF s

\vhat was the reference to the National Ccnfe r^nce au pai: e 850 that you made just before you mentioned this? Was that a Conference of the Youth League or of the African National Congress?

24215.

MR. MAI 3 .LS 5 I think it is a Youth League Resolution^

My Lord, may I just make sure. It is the Fifth iinnual Conference of the A.K.C.Y.L. MP:. JUdTIC-J RUMPFF : 9 What does it say?

MR. Mul j.jLS s

"The policy of the Youth League is that which is formulated and declared at National Conference from time to time". MR. JUSTIC-J RUMPFF :

At the Youth League Conference? MR. MAISJLS ?

I see, Your Lordship means maybenthe Youth League Conference? Tfren it is quite clear from other evidence which I shall give Your Lordship now, volume 76 ... MR. JUSTICE B̂ KKj-.R ;

I think further on tlsfc - further on in that document there is some discussion as to whether the A.N.C.Y.L. has the right to formulate its own policy, ani it is made clear, no. It derives its policy fr m The National Conference of the ^.N.C. MR. MalSJLS s

My Lord, I just want to make quite sure. MR. JUSTICE ICONN-liDY S

I don't recall that there is any National Conference of the ^.N.C.Y.L. My impression is that the National Conference refers to the National

243.6.

Conference of the African National Congress. MR. MaIS^LS i

That is how I read it, My Lord. It was only when Your Lordship put it to me ... MR. JUSTICE 3-JAKA'R ;

Mo, they do take Cradock, Oudtshoorn, they have - at Queenstown, they have the National Conference meeting and then the next day the National Conference ofthe A.N.C.Y.L. MR. MAISELS 3

Oh yes, that is correct. M R . J U S T I C E RU:TI-T S

They have their National Conference. MR. McxISJLS 2

Ch yes, but they are only an auxilliary body, they don't lay down the policy of the A.N.C. That is the fundamental point. My Lord, Mandela, makes the position quite clear, at page 16195. When this document A.2C4 is put to him, and this passage which I have just read is put to him s

"Is that in accordance with what you know of the formula-tion of Youth League policy when you were a member? — That is so". "Is the formulation of the African National Congress policy any different from th.it? No."

That is the way in whih it is done, My Lord. Now My lord, indeed it was never suggested to Professor Mat thews or to Luthuli or to anybody else that the true position is otherwise than I have submit-ted it. In f act My Lord, Your Lordship will recall

24217.

that when my learned friend Mr. Hoexter was addressing the Court on Sibande's - the Accused Sibande's knowledge of A.N.C. policy, h{/stressed the fact that he had been to at least four National Conferences, that seems to be the main ground of showing that he knew the policy. Furthermore, My Lords, all major campaigns were initiated by the National Conference. Mr. Luthuli's evidence, volume 57, page 11437. ^nd indeed, My Lord, it is not really and cannot really be challenged that it is the resolutions and decisions of Congress that lay down the policy. Your Lo dship may be reminded of a passage at page 14781 where Your Lordship put a matter to my learned friend Ir. Liebenberg, when he was cross-examining the witness Mrs, Joseph. Your Lordship said ;

"Mr. Liebenberg, ere you now asking her questions of policy. Then you assume that there may have been decisions or formal statements by the organisation having regard to this particular question." And indeed there is direct evidence that it is only the resolutions and decisions of Congress that lay down the policy, evidence which wisn't challenged. Professor Matthews, volume 86, page 18133; Mr. Luthuli, page 11435/6. That being so, My Lord, if the Crown case is, as it must be, that the policy was changed at some National Conference, either the Annual one or some Special Conference, this was nev .r suggested to any of the witnesses that gave evidence for the Defence. Nor was it suggested, My Lord, that there was some polio making body of the A.N.C. other than the N ticnal

24218.

Conference. The r.ason for this, My Lord, in our sub-mission is that there would be no basis for this sugges-tion, and if there had been any National Conference at which any decision had been made to change policy, in such a way as is now suggested by the Crown, it is inconceivable that the Grown should not have been able to read - lead direct evidence of this, in the shape of informers, persons expelled or in some other way.

Now, My Lord, we submit therefore that the Court is in the position, wiith respect, ofhaving to accept on the mass of not merely uncontradicted but on the mass of unchallenged evidence, that the policy making body is the National Conference, and that it is the decisions of that body, of that policy making body, and that body alone, that must be looked at to determine the policy of this organisation. There is no room, My Lord for the question of implied policies. It is a question of the interpretation, the proper interpretation of the decisions taken at these Conferences alone that must be looked at, and the submission made is that the decisions at these Conferences do not give any founda-tion for the Crown case. My Lord, if the decisions of ••ohe Conference were not on record, if Your Lordships didn't have all the Conference decisions at all relevant times, it might be necessary to try to determine them from second .ry sources. In fact, My Lord, all the major policy documents are before the Court, and there is no difficulty in discovering what the policy actually was from the primary source. And the only reason, My Lord, why the Crown has to rely on an elaborate structure

24219.

of implication and inferences if direct evidence not only doesn't support it, but destroys its case. More o e Vb r, My Lord, insofar as ttu decisions of these Conferences resulted in activities or action, for example the Defiance Campaign, the Western areas Cam-paign, the Bantu Education Campaign, the anti-Pass Campaign, the evidence does not establish that these activities were in any way violent or that they went beyond the policies and resolutions of the Conference. Now My Lord, if this approach of ours as to the policy making body is correct, then the division of the docu-ments into policy and non-policy documents becomes comparatively easy. And the submission will be that the documents which we are now about to dsal with can be considered as the main policy documents in this case. We don't dispute, My Lord, that in certain circumstances utterances or writings of leaders may be looked at as an . . . . . . . interpretation of various resolutions

and decisions where they are not clear. But that is the utmost extent to which they could b^ considered.

My Lord, the true policy documents of course, oiie starts off, firstly with the Constitution, secondly Africans Claims, thirdly the Programme of Action, fourthly the Freedom Charter, and fifthly the resolutions taken at Conference. Those are the true policy documents, I say resolutions at Conference -I mean resolutions taken at the National Conference of the A.N.C.

Now My Lord, may I just deal Very briefly with the Constitution and it is elementary of

course with respect that in consideration of the policy of an organisation, particularly a political movement such as the African National Congress, one looks firstly at the C nstitution. The Constitution, My Lord of the African National Congress at all times relevant to this Indictment, was exhibit A.15. It is common cause, My Lord, that it was in existence from December, 1953 to December, 1957. That appears, My Lord, from the evidence of Mr. Luthuli, volume 57, page 11426/8/9. There had been an earlier 1919 Constitution, Exhibit O.R.T. 37, which set out the policy in great detail, and which is referrel to by Professor Matthews in Volume 85, at page 17881. This document, My Lord, Your Lordsaip will recall, refers specifically to peaceful propaganda. Your Lordship Mr. Justice Bekker asked the question at volume 85, page 17890, Your Lordship said ; "In the 1919 Constitution, was non-violence as such

mentioned? Peaceful methods were mentioned. That was specifically r.entioned, yes".

But the mere fact, My Lord, that this clause, whatever it was, didaot appear in the 1943 Constitution did not affect the method of the A.N.C. That appears clearly, My Lorl, from the uncontradicted and unchallenged evidence of Professor Matthews at page 17934/5 in the same volume, My Lord. The clause was road, My Lord in that Constitution, at the top of page 17934 s "Methods or Modus Operandi". "The work of the association shall be . . . . . and advanced (a) by means of resolutions, protests and constitutional and peaceful propaganda, by deputations

24221.

and other forms of representation, by holding enquiries and investigation of grievances and oth^r matters and by passive action or continued movement". And then it goes on, education, by means of united action and so on. And then the question was put to Professor M tthews s "The 1919 Constitution is a very long and detailed document? It is, yes".

"Do you recall yourself the adoption of 1943 Constitu-tion? Yes, I do". "Did the dropping of that particular clause that I read about Methods or Modus Operandi at that stage involve any change in the methods of the it.N.C.? No."

And it is submitted therefore, My Lord, that the Crown can base nothing on the Constitution to support its case.

And the next most important document, My Lord, and perhaps it is one of the most important docu-ments in the case, is Axhibit W.S. 99, African Claims, put in by the Defcnco in volume 54, page 10716 to 10740. My Lord, this document remained the basic policy of the A.N.C., certainly up to the time of the adoption of the Freedom Charter. Of that there is no doubt. The Freedom Charter we know was adopted by the A.N.C. in March, 1956. So therefore, Jy Lord, for four-fifths of the period of this Indictment this was the basic policy document. Moreoever, My Lord, it was the basic policy document, certainly - and I am using the Crown phrase - at the time when all the Accused were in the conspiracy, that is since February, 1954. It is stated by Professor Matthews, My Lord, volume 85, page 17881/2

24222.

still to remain the policy of the A.N.C., because he explains, My Lords, that insofar as the Freedom Charter is concerned, th_re are modifications which I shall deal with in the course of the argument. He says, after dealing with now the document came into existence s

"How long did it remain the policy of the African National Congress? It still remains the policy of the African National Congress".

And Mr. Luthuli gave the same evidence, My Lord, at volume 57, pages 11410. Now My Lord, I propose, if Your Lordship pleases, in due course to refer Your Lordships in some detail to this document. But the history of the document is given by Professor Matthews, who according to the document itself, and his own evidence, was the chairman of the committee who drafted it. That appears, My Loid, at page 17881, in volume 85, which I should like to road to Your Lordships. "At the time when you joined the African National

Congress, you had a Constitution formulated in 1919? Yes". "And did that set out the policy? Yes, that set out the policy of the A.N.C. in great detail". "In 1942 there was a move (?) to draft a further/state-ment of Congress policy? Yes". "In 1942 there was a move to draft a new formulation of African N tional Congress policy". "How did that come about? The idea was stimulated by the publication of the Atlantic Charter in 1942". "How did that stimulate you in the African National Congress? The Atlantic Charter amongst other things

24223.

also referred to this idea of self-determination, for dependent peoples as a . . . . . . . It was something that would happen in the post-war world." "And did Dr. Xuma take any steps in this regard? Dr. Xuma in lis capacity as President invited a number of people to a Conference to discuss the Atlantic Charter and to draw up this formulation of the African Claims as it came to be called". "Were you invited to take part in the Conference? Yes, I was a member of that Jonf^ronce", "And were you invited to take part in drafting the programme? I was invited to take part in drafting a section of the programme, and at the Conference itself I was appointed chairman of the whole committee". "And is the document which you produced the one which

is called African Claims in South Africa? That is the document". "And this document was published in printed form under this title of Africans Claims in Africa in 1945? Yes".

And then there is the passage which I have just read to Your Lordsnips. and then it says : "And did it, as you see it, constitute a departure from policy? No. iis I see it it didn't constitute a departure frj.n policy, but merely a clearer formulation of the policy in regard to different aspects of African life." "And it contained a Bill of Rights? Yes".

Now My Lord, of course this document is constantly referred to. Your Lordship for instance will find it referred to in t.37? in the 1954 Report

24225.

which ... MR. JUS TIC J LiSKK^R :

Was Africans Claims over formally adopted at ° National Conference as its policy? MR. MAIS-JiLj. 2

Oh yes, My Lord. If Your Lordship will allow me one moment - I am pretty sure it was. In the preface, My Lord, - I shall give Your Lordship the page in the record, as a matter of fact it would be bett-r than reedin^ from the document itself, page 10716, My Lord. "This document was drawn up after due deliberation by a special committee whose names appear at the endof this booklet. Their findings were unanimously adopted by ^n annual Conference of the African National Conference at Bloemfontein on the 16th December, 1945."

My Lord, the document, as I was about 4o say, is frequently rexerred to in official documents. For example, My Lord, in A.37 and 38 - it has got two numbers that, My Lord - which is the 1954 Report, Your Lordship will see at page 267, line 10 ; "Luring the Second World War the President-General of the African National Congress appointed a special committee in 1943 to examine the place of an African in the post-war world - post-war period in the light of the Atlantic Charter. The document drawn up by the Committee covered the international and national policy of the African National Congress, which was unanimously adopted at the National Conference in December, 1945, and finally published in a booklet entitled Africans

24226.

in South Africa. This policy has boon endorsed by the successive Presidents of the African National Congress and was sharply raised by Luthuli's Presidential Address last year. The cardinal points of our foreign policy are opposition to war, uncompromising s tand for world peace, opposition to colonialism and White domination.." and so on.

One finds numerous references in the record, My Lord, to this African Claims as being a vital policy document.

Indeed, My Lord... COURT ADJOURNS.

24227.

COURT RJ5UM-J3.

MR. Mm IS iLS % My Lord, thire is just one further

reference in ii.37 w. ich was read in by the Defence in Dr. Conco's evidence, to this document Africans Claims to which I wish to refer. That is My Lord at page 10877 On page 14 of the Secretarial Reportone finds the following recommendation % 'That every branch must have a copy of (i) The Constitution of the Congress",

(ii) The booklet entitled Africans Claims; and (iii) This Report.11 "And the question is now, does that represent as far as you know what was done? Yes, that report draws the attention of all Congress organs to h ve a copy of this book as the basic policy of Congress".

MR. JUSTICE B^KEER : Itr. Maisels, I am under the impression

that the A.N.C.Y.L. was rapped over the knuckles for trying to formulate its own policy. I think there is some reference. Could you ask your learned juniors to see whether there is such a reference? MR. Mn.13 J'LS 5

Yes, My Lori, we will certainly do that We will try and £ive Your Lordship the answer tomorrow. Now My Lord, I might, while I am at this stage of the argument dealing with u rican Claims, deal with a passage in the cross-examination of Luthuli, where it was endeavoured to show that the 1956 Report stressed the differences between the Freedom Charter and Africans Claims. It is in the evidence of Mr. Luthuli, My Lord,

24228.

at page 13738/9. iNow My Lori, we use that's trangly in our favour. I think the Jxhibit number is A.J.L. 71. Because it shows, My Lord, what the differences are, and it shows, My lord, that wherever there is a difference in policy, that whenever there is t is difference, that is plainly and clearly stated at the Conference. No-body is asked to infer this, that is stated as the National .Jxecutive view. Incidentally, My Lord, of course Your Lordship will bear in mind that that 1956 Report, A.J.L. 71, was the draft Report, and it was certainly not adopted during the Indictment period. But I am accepting it, My Lord, as against myself as a draft of a document that might probably have been accepted, .̂ nd there the differences are pointed out. Mr. Luthuli goes further, My Lord. He points out in re-exam_nation at a passage not referred to by the Crown, in volume 65, page 13894 to 13897. He points out, Lly Lord, that there ar„ certain other differences which are of v-ry gr^at importance In fact, My Lord, in the original answer which he gave in volume 65, 13738/9, he pointed out My Lord tuis, in answering the questions that my learned friend Mr. Trengove put to him, he said, after pointing rut certain statements -my learned friend put the question s

"Mr. Luthuli, that was the view of the Nati nal Executive, that there was a vital lifferonce in the African Claims in the respects set forth in this Report, and the

ains ? Freedom Charter for the first time sets out the claims and objects of the African National Congress in the clearest and most unambiguous terms? That is correct,

24229.

is it not? that is what the National .Executive thought of the Freedom Charter? I think that is correct, subject to any explanation that ne nay make". And there were two points which my 1-arned friend Mr. Trengove did not note, and which are certainly of equal importance. The first is, My Lord, that in Africans Claims, there seems to be a stress My Lord on African nationalism as such. Your Lordshij will find right at - this is how Mr. Luthuli puts it, page 13893 ' "Now insofar as the demands of the Charter are concerned, what is your opinion is the relationship between those!

demands and the document A F R I C A N S Claims? My view, My Lor is, is this, andl think it wo- Id be th~ view of anyone who had . . . . . . when i.e reads those two documents carefully and compared them. I think there is a great affinity between the F^edom Charter and Africans Claims, between the Freedtr Charter and the three lectures. I will come to that. They both bear the marks very distinctly ar? sing c .it of the needs of the people. You '.will finl, iy Lord, references to land, the police, the Courts, education and so on, matters that affcct the people in their daily lives, and so that, without any question. th_re is a great affinity, Of course, as I think I pointed out during my evidence, ther_ are differences, in that the Freedom Charter breathes the spirit of multi-racialism, whereas ^frican Claims, as it in fact says itself in the introduction, it is concerning itself with Africans particularly".

And then, My Lor",, at pa e 13897, he

24230.

deals with the Programme of action in relation to this document, which I shall refer to again. But My Lord, Professor Matthews really sums the matter up in his evidence, at page 18002, volume 86;

"Now Professor, how do the aims s^t out in the Freedom Charter compare with the aims set out in Africans Claims?

They correspond Very closely indeed to what is Set out in the africans Claims in regard to different aspects of life, except I think, that in Africans Claims there are no ..." I am sorry, that is the question ; "Except that I think that in Africans Claims there are no clauses relating to nationalisation of mines or banks? — ^e s " . "I think that is the only difference".

and then at page 18007, Your Lordship Mr. Justice Bekker put this question ?

"^sn't there a slight variation in Africans Claims and the land clause in the Freedom Charter? a slight difference in formulation I think, but I don't thi.ik it is fundamentally different as I recall it now. I haven't got the document in fr;;nt of me::. Then my learned friend Mr. Kentrid. o ? "In Africans Claims, the phrase is 'we demand a fair redistribution of the land as a prerequisite for a just settlement of th. land problem". And then Your Lordship i :,And the other one is that the land must be divided amongst those who work it". Mr. Kontridge ; "Did you feel that ther^ was a difference in meaning?

24231.

Not a fundamental difference". 3y Your Lordship ; "The land mustbe divided amongst those who work: it. Who would qualify under that? I think the reference

9 9 9 9 9 9

there is to the undesirable nature of pOo£)le who become owners of land that just lies vacant and is not used. Mr. Kentridge % "There is such land in this country? Yes, I think there is a lot of land like that that is owned by people who d n't use it at all, or who mgght perhaps have a number of Africans staying on the land, but the actual owner of the land is not making any use of it". By Your Lordship s "What do you say to the suggestion that that really moans that the people who work the land are the Africans, they work the land, not the White people? No, not necessa-rily. It might be Africans, it might not be ,n:ricans. .oven amongst Africans you have many people who have land and who don't use it". By Your Lordship : "What if it is sug,; ested that clause really means that the Europeans must not have land at all, because they don't work the land? No, nothing in that sense." And then the questioning continues ; "People who work the land are the Africans? No, I qm sure that was not intended, no."

ji-nd ajart, My Lord, - really if one examines th^ documents, for the modification in the Freedom Charter in regard to nationalisation of mines,

24232.

and monopoly industry, which of course is important, My Lord, and that was why in the draft Report of 1956, that was stated, there is no substantial difference between Africans Claims and the Freedom Charter. One will see that on an analysis.

Nov/ My Lord, I propose now inviting Your Lordships to consider the actual wording of this document, which will be found in Volume - this is Africans Claims, My Lords, and incidentally I have given Your Lordship one reference number as W.S. 99, but it is plain that

it was found in the possession of numer us people by the police. ^nd My Lord, I start from the preface at page 10716, and it was put to him as I say My Lord, by the Defence in the cross-examination of a Crown witness. xtnd the preface reads My Lor Is s "In the following pages the reader will find what has been termed Bill of Rights, the Atlantic Charter from the African's point of view. This document was drawn up after duo deliberation by a sp.cial committee whose names appeal* at the pnl of this booklet. Their findings were unanimously adopted by the African - by the annual Conference of the African National Con^r^ss at Bloemfontein on the 15th December,

(as ? ) 1945. .ve realise that/anyone else, the apparent inappropriate-no ss and vagueness of the expressions adopted by us. V

24233.

government and the European section alone h ve the absolute legislative and administrative power and authority over the non-Europian". Now My Lord, that is a consistent statement right throughout, they accept it. "We know that the Prime Minister of the Union of South Africa and his delegation to the Peace Conference will represent the interest of the people of our country. We want the government and the people of South Africa to know the full aspirations of the African peoples, so that their point of view will also be presen-ted at the Peace Conference. We want the government of the United Nations to know and act in the light of our own interpretation of the Atlantic Charter to which they are signatories. This is our way of conveying to them our undisputed claim to full citizenship. We desire them to realise once and for all that a just and permanent peace will be possible only if the claims of all classes, colours and races for sharing, and for full participation in the educational, j ulivical and economic activities are granted and recognised." Your Lordship will sec that right in th^ very beginning one sees the idea of peace and free .om linked together, without any horrible communist smears such as those to which we have been subjected to for man,r months, "already according to press reports, there seems to bo difference of opinion as to the applicability of the Atlantic Charter between the President of the United States of America and the Prime Minister of Great Britain, It would appear that Presil-nt Roosevelt

24234.

wanted the Atlantic Charter to apply to the whole world,

while the Prine Minister, Mr. Winston Churchill under-

stood it to be intended for the White "people in the

occupied countries in South arica - in Aurope." Then

the article continues s 51 In South Africa., Africans have

nc freedom of movement, no freode.. of choice of employ-

ment, no right of choice of residence, and no right of

freedom to purchase lan- or fixed property ffom anyone

and anywhere. Under tAv. guise o+' segregation, they

are subjected to serious educational, political and

economic disabilities and discrimination which are the

chief causes of their apparent alow progress". Now My

Lord, evidence was given, both by Yengwa and by Profes-

sor Matthews, that that is in tact the position, that

that is in fact the positio i in this country. They put

it as a statement of factl The evidence of Professor

Murray indicated at least if it wasn't a statement of

fact, it was the view that might reasonably be held.

It might reasonably be held, that policy of

apartheid, or as it is called there, segregation, has

not to do really My Lord with intermix.gling, but is in

fact an instrument to impose serious ccnomic disabilities. Then the article continues s "We urge ? that if fascism and fascist tendency ' re to be uprooted from the face of the earth, c.nd to open the way for peace, prosperity anl racial goodwill, the Atlantic Charter must apply to the whole British Ampire, the united States of America aid to all the nations of the weild and their subject peoples". Now My Lord, reference is male to the necessity to

24235.

uproot fascism and fascist tendencies. What is this supposed to be in lino with, My Lord? Communism? Was this a suggestion that the uprooting of fascism and fascist tendencies was something to be done with violence? But My Lord, if one continues to read the preface, one finds the topics dealt with in very much the same way as the same topics were dealt with in innumerable speeches and documents which have been considered in th:. s case, Now, My lord, after the preface continues to talk about quoting the B.B.C.

Radio Newsreel, we fight for world democracy, which of course today is translated by the Crown into we fight for world communism, at page 10718 of the record, the statement continues ; "The sildiers of all races, Europeans, .Americans, Asiatics and Africans have won their claim and the claims of thoir people to the four freedoms, by having taken part in this war which can be converted into a war for human freedom, if the settlement at the peace table is b- sed on human justice, fair play and equality of opportunities for all races, colours and classes.: Tha*c is all, My Lord, that the Congress movement has boon trying to get. Then the document continues ? :;We deliberately s „t up a committee composed ixulusively of Africans in South .Africa to deal with this matter, so the; can declare

influence ? without assistance or inference (?) from others their hopes and diopairs. The document that follows was their deliberate and considered conclusion as well as their conviction,, Others who believe in justice and fairplay for all human beings will support these

24236 o

rightful claims from Africans themselves. .ts African leaders, we are not so foolish as to believe that "because w^ have mt.de these declarations that cur govern-ment will grant us our claims fcr the mere asking. We realise that for the African tdis is only a beginning of a long struggle entailing great sacrifices of time, means and life itself. To the African people a declara-tion is a challenge, to organise and unite themselves under the mass liberation movement, the African National Congress. The struggle is on right now and it must be persistent and insistent. In a mass liberation movement there is no room for divisions or fcr personal ambitions. The gcal is one, namely freedom for all. It should be th- central and only aim for the objective of all true . JTrican Nationals", .aid then carrying on, skipping a sentence which isn't of importance 5 "On behalf of my committee and the African National Congress, I call upon chiefs, ministers of religi n, teachers, professional men. men and women of all ranks and classes, to organise our people, to close ranks, tr> take their place in This mass liberation movement and Struggle expressed in this Bill of Citizenship XLights until freedom, right and justice are won for all races and colours to the honour and glory of the Union of South Africa, whose ideals, freedom, democracy, Christianity and human decency cannot be attained until all races in South Africa participate in them."

Now My Lord, this document is signed by Dr. Xuma, whom the Crown alleged in cross-examination somewhat oddly if one may say so, h d not been re-elects

24237.

President-General of the A.N.C. in 1949 because he wasn't prepared tc take part in the 1949 Programme of Action. This is a somewhat surprising attitude on the part of the Crown, having regard to the fact that Dr. Xuma was alleged in the first Indictment to "be a co-conspirator, and in this case My Lord, in this very case evidence was given as to a speech alleged to have been made "by him during the /estern .ureas Campaign. But My Lord, doesn't the Crown argument about mass liberation movements, sacrifices, sacrifices of time, means and life itself, sound rather hollow when con-sidered in the cont-xt of the original statement of policy in 1953, which is not - 1943, or 1945, aih adopted, which is not alleged by the Crown in any way tc imply violence, even by retaliation.

-'•hen My Loris, on the document itself, passing now from the preface which I shall not read to Your Lordship, excepting at page 10721, which deals with liberation and that Professor Matthews was elected chairman. And then My Lord, it goes on to 10723. "The status and independence of Abyssinia and the right tc sovereignty must be safeguarled, and any political and economic assistance she may need must be freely nego-tiated by her and be in accordance with h^r freely expressed wishes. Abyssinia should bo afforied a corridor into the sea for the purposes of trade and direct communication with the outside world. Secondly we urge that as a fulfilment of the war aim of the allied nations, namely to liberate territories and people under foreign domination, the former Italian

24238.

colonias in Africa, should be granted independence, and their security provided for under the future system of world security. Thirdly there are the anxieties of Africans with regard to British Protectorates in South Africal It is wellknown that th^ Union of South iifrica is negotiating to incorporate - for the incorpora-tion of the three Protectorates of Bechuanaland, Basutuland and Swaziland, and that incorporation night be pressed during or after this present war as part of South Africa's price for participation in this war. The Schedule to the South Africa Act of 1909 did envisage the transfer under certain conditions of the Territories to the Union of South Africa. But Africans are not contracting parties to these arrangements and they do not regard the provisions of the Schedule as morally and politically binding on them. _hey woul1 depracate any action on the part of Great Brit in which would bring about the extension of Aurop.an political control at the expense of th.ir vital inter Africans therefore are definitely opposed to the transfer of the Protectorates to the South African state".

'-'-hen My Lor.l, at page 10726 s "Vfe hope that the mistakes of the past whereby .-frican peoples and their land were treated as pawns in the political game of European nations will not be repeated and we urge that before such change were effected there must be effective consultation and that the suggested changes be in accord with the freely expressed wishes of the indigenous inhabitants. Further, where territorial caanges have taken place in the past and

24239•

have not resulted in the political cr other advancement of tho- Africans living in these territories or colonies, it would bo a mistake to continue to maintain tho status quo after the war. The objective of promoting self-government for colonial peoples must be actively pursued by powers having such lands under their administrative control, and this objective should also be a matter of international concern, more than has be^n the case in the past."

Then My Lord, on the next page, page 10726 s "In the African Continent in particular, eiurop an aggression and conquest has resulted in the establishment of alien governments which however benefecont they might have boon in intention or in fact, are not accountable to indigenous inhabitants. .Africans are still very conscious of the loss of their independence, freed.)m and the right of choosing the form of government under which they will live. It is the inalienable right of all peoples to choose the form r.f government under which they will live, and therefore .Africans welcome the belated recognition of this right by the allied nations. We boliov- that the acid test of this third article of the Charter, which.." which was, My Lord, that they respect the right of all peoples to choose the form of government under which they will live and their wish tc see sovreign rights, the article continues - the document continues s "We believe that the acid to-st of this third article of tho Charter is its application to the African Continent. In certain parts of African it should bj pos ible tc accord Africans

24240.

1 sovereign rights and to establish an administration of their own choosing. But in other parts of Africa, where there are the peculiar circumstances of a politically entrenched -juropean minority, ruling a majority African population..." - there is a misprint in the record, My Lord, it says "European", - ".. the demands of the Africans for full citizenship rights and direct participation in all the Councils of the State should bo recognised. This is most urgent in the Union of South Africa."

Then at page 10727, dealing with raw materials ; "Africa has figured prominently in

the discussions and the better distribution of the world resources, and of free international trade because of her rich raw materials, most of which have not as yet been fully tapped. The exploitation that is suggested by the above article, judging by past experiences and present economic evils, raises in our minds considerable misgivings as 1: -iely to bring about continuation of the exploitation of African resources to the detriment of her indigenous inhabitants and the enrichment of foreigners«" Then skipping a paragraph, My Lords s ''In our view, it is essential that any economic assistance that might rendered to weak and insufficiently developed African states, such be of such a nature as will r_ally promote their economic progress."

Then at pag3 10728 dealing with the International Labour Office s "It is regrettable that the Convention is dealing with the welfare of ..frican

24241.

labour, forced labour, nigrant or recruited labour, health and housing, wage rates, that have been drawn up at Geneva and accepted by the majority of civilised states, have for selfish reasons been either rejected or halfheartedly applied by ifrican governments whose protestations a& being civilised have been loudest. Thus Africa has not to any large extent fell the bene-ficent influence of the International Labour Organisa-tion. Hitherto the International Labour Organisation has been representative mainly of the interests of governments of the capitalist class. We claim that

collaboration between all nations in the economic field must be - must include consideration of the interest of labour as well as of capital, for all workers including African workers, must be fully and directly represented in this collaboration. In order to make participation by the workers effective, it is essential that their right to collective bargaining sh uld be legally recognised and guaranteed. We shall understand 'improve labour standards', 'economic advancement', 'social security' as referred to in this article to mean the following ; (a) The removal of the colour bar, training in skilled occupations, remuneration according to skill, a living wage and all other bene-fit^ proper and adequate housing, for all races and colours."

And then My Lord, at page 10729 : "^fricans are in full agreement with the war aim of destroying Nazi tyranny. But they desire to see all forms of racial drminati n in all lands, including the

24242.

allied countries, completely destroyed. Only in this way, they firmly believe, shall there be established peace, which will afford to all peoples and races the meaning of dwelling in safety within their own bounda-ries, and which will afford the assurance that all men in all lands shall live out their lives in freedom from fear, want and oppression". MR. JUSTICE BJiKKER s

What is that reference tc the "interest of capital shall be maintained", or words to that effect? ME. MiilS^LS 2

"The International Labour Organisation has been representative mainly of the interests of governments and th~ capitalist class..." ME. JUSTICJ RUMPFF ;

No, no, further down. There is a passage which seems to indicate that the difference between capital and labour is recognised. ME. MxiISJLS t

Is this the passage, My Lords ; "We claim that collaboration between all nations in the economic field must include considerations of the interest of labour as well as of capital", "and that all workers, including African workers must be fully and directly represented in this collaboration". MR. JUoTICJ EUMPFF s

Just what does that mean? MR. M^Ib.LS s

It simply means, My Lord, that this is a

24243.

criticism of the International Labour Office ... MR. JUSTICE RUMPFF s

"We claim that..." - I am only concerned .ith that passage. MR. MaISJLS 5

".. collaboration between all nations in the economic field." The International Labour

Organisation is an international body dealing with all nations, and they have got to consider not only the interests of the capitalists, but the interests of the labouring groups, the working classes, including Africans, who are also workers.

i.nd then on page 10729 ' "Africans are in full agreement with the war aim of destroying Nazi tyranny". I think My Lord, I have already read that paragra h.

Then on page 10730 s "While recognising the necessity for the use of force within a country as part of its policing machinery, we nevertheless -st must nevertheless deplore the fact that force, especially in South Africa, is frequently resorted to as a method of suppressing the legitimate ventilation of their grievances by oppressed, unarmed, and dis-armed sections of the population".

Now My Lord, looking then at the whole of this document, do we not see, My Lord, references to the following s A mass liberation movement, oppres-sion, fascism , economic oppression, colonialism, imperialism, desire for world peace, objection to capitalism insofar as it affects the position of the

24244.

^frican workers, resentment at the use of force by the government ageinst the oppressed. My Lord, what in substance, what in substance is there which makes this document different from so many speeches and documents which we havj had to listen to in this case. And My Lord, if one looks at the Bill of Rights, which is attached to this ocument, as stated - My Lord, as 1 have already indicated to Your Lordship, with the exception of the monopoly inlustry and the nationalisa-tion of certain industries, it contains nothing really different from what is propagated in the Freedom Charter. I don't want to read the whole of this docu-ment to Your Lordship. The first claim is the abolition of political discrimination based on the race. The right to equal justice in Courts of law, including nominationeincluding the nomination to the jury, page

10731? My Lord, appointments as judges and magistrates. •n j * -j n j? such as the Freedom of residence, repeal of laws . . . . . . . . . . Native Urban Areas Act, „ , . T , , ,, . o . I . . the Native Land uct, the Native Law Amendment Act, freedom of movement, the repeal of the pass laws, right of the freedom of the press, recognition of the sanctity or inviolability of the home as the right of every family5 the right to own, buy or hire, lease and occupy land and property anywhere; the repeal of the restrictions of the Native Land Act; the Native Trust i.et, the Native Urban Areas^ct. Th~re weren't so many acts in those days, My Lord, as there are since, but those were enough. The right to engage in all forms of lawful occupations, trades and professions. The right to be appointed to and hold office in the civil service. The right of every child

24245.

to free and compulsory education and admission to schools. Equality in the treatment of the state social services. Thj right to the equal share in the material resources of thi country. The right to equal opportunity to engage in any occupation, trade or industry, in order that this objective might be realised to the fullest extent, facilities to be provided for technical and university education for Africans, so as to enable them to enter schools - skilled and semi-skilled occupations, professions, government services and other sources of employment. Jqual pay for equal work. The removal of the colour b .r in industry. Th- statutory recognition of the right of ev^ry African wo. ker to collective bargaining. The ^frican worker shall be ensured against sickness. That the present allocation of 12-gfS of the surface area to s-ven million Africans, as against 87-4% to about two million Europeans is unjust and contrary to the interests of South Africa, ^nd we therefore demand a fair redistribution of the land as a prerequisite for the just settlement of the land problem. The right to own, buy, hire or lease and occupy land individually and collectively in both ru.: al and urban areas, is a fundamental right to citizenship. The demand for the repeal of the Land .uct. asking for assistance to African farmers. Education, My Lord, a particularly long paragraph on it. Page 10734/5 °° "The education of the Africans is a matter of national importance requiring state effort for its proper realisation. The magnitude of the task places it beyond the limits of the resources of the missionaries or private

24246.

endeavour. The right of the Afrioan child to education like children of other sections rust be recognised as a state duty and responsibility. We therefore demand that the state must provide full facilities for all types of educati on of frican children. Education of the African must be financed from g neral revenue on a per capita basis. And so on, My Lord. We reject the conception that there is any need of a special type of education for the id.icans as such, and therefore we demand that the Africans must be given the type of education which will enable him to meet on equal terms with other people . . . . . . . of the modern world.

Then the demand for equal pay, the same system, public health system, the complaint about the economic position of the African, malnutrition, overcrowding, high mortality, slum ccnditions, asks for free medical and health services, increased hospital services, and finally My Lord, at page 10737, "We the African people regard as fundamental to the establishment of a new ord^r in oouth Africa, the abolition of all enactments which discriminate against the African on grounds of race and colour1'. My Lo d, it is seen as a new order in 1945. My Lore, the Crown should r.ally have suggested - put tiu s locument in the forefront of its case. We condemn and reject the policy of segregation in all aspects . f our national life, inasmuch as this policy is designed to keep the African in a state of perpetual tutelage and militates against his normal development. Wo protest strongly against discourteous, harsh and inconsiderate treatment mooted out to Africans

24247.

by officials in all state an&other public offices and

institutions. Such obnoxious practico arc irreconcilable democratic ?

with Christian, democracy and civilised standards and

are contrary to human decency. We therefore demand,

(a) The repeal of all colour bar and/or discriminatory

clauses in the Union Constitution, that is the South

Africa 1909 act; the repeal of the Representation of

Natives Act, the land Act. The Repeal of the Pass Laws,

the Native Urban areas Act as amended, the Native

Administration Act 1927, the repeal of the colour bar

act or the Mines and ^orfcs Act, the Native Service

Contract Act, the Master and Servants Act, and the

amendment of all discriminatory and disabling clauses

against African workers contained in the Industrial

Concilliation Act. In short, we demand the repeal of

any and all laws, as well as the abandonment of any

policy and all practices that discriminate against the

African in any way whatsoever on the basis of race,

creed or colour in the Union of South Africa.

Now, My LorI, any one who wants to, and

My learned friend Mr. ^rengove in particular, would call

this smashing the existing system. That is what that

document is. It is no less smashing - a demand for

smashing the existing system than the Freedom Charter.

Certainly not in the political field. It makes the

same demands, My Lords. But My Lords, it was never

suggested by the Crown that this document affords any

support at all for its case that there was a conspiracy

to overthrow by violence. There was no cross-examination

of any of the Defence witnesses. It is not even in the

24248.

Violent Schedule. It has not "been suggested to anybody

that by the adoption of this programme, this document,

indicated a departure from peaceful means, notwithstanding

My Lord the preface which used the words"a long struggle-

entailing sacrifice of time, means and even life itself".

It won't be granted for the asking. My Lord, doesn't

this cross-examination of Defence witnesses ad nauseam

- and I used that word advisedly - ad nauseam on phrases

like "sacrifice of life" or "the supreme sacrifice"

become somewhat hollow in the light of this document.

Doesn't this document demonstrate quite plainly, My Lord,

that the language - that the language of political

struggle has been translated or distorted by the Crown

into the sort of language that one might use when

drawing up a cold legal document. Doesn't it show, My

Lord, that the truth of the evidence of all the witnesses

for the Defence, which they generally use metaphorically,

and is not (?) used metaphorically, is related to the

hardships that maj be inflicted upon the persons

claiming their riLhts. Dees it not show also My Lord,

that there is no basis for tile suggestion that it was

the Africans who were to take the initiative or to

start a violent straggle. My Lord, if the Crown case

is correct, this preface of Dr. Xuma's is as violent a

document as any which has been seen in the case, ^nd

the people who were the signatories to Africans Claims

itself, and whose names appear plainly on the document

itself, then and there made themselves guilty of high

trjason because, My Lord, this must have constituted a

plot to prepare and educate for violent action under a

24249.

mass liberation movement. There was a mass liberation movement, they called themselves that. These were the things they were demanding, these were the things, My

Lord, which were at least as distasteful to the White population as the ones contained in the Freedom Charter

of 1954 (sic), and they knew the government frequently used force, they said so. They said it in the document. We say the use of force is frequently resorted to as a m^ans of suppressing the legitimate aspirations. If anybody suggested that by this document they were setting in chain this reaction of violence - to be consistent the Crown must argue that. But My Lord, the document has a positive value as far as we are concerned, quite

derived from ? apart from that. The value is the light (?) of a suggestion that the Bantu Education Campaign was an education without substance, but purely a part of the liberatory movement. Tt gives rise (?) to the sugges-tion that the Western ureas campaign is purely a step in the liberatory movement... Mlt. JUSi'IC-J RUMPFF :

Vtell, was the contention that it was purely a step, or also a step? ME. MaISJLS J

ii.lso a step, My Lord, is quite a different thing. My Lords, obviously... MR. JUSTICJ RUMPFF s

The same applies to Bantu education. I d n't think it was argued that it was only a step... MR. MiiIS -iLS :

Well, My Lords, it was put this way, it was all part of the liberatory movement. That is the

24-250.

way it was put, that the Bantu Education Campaign and tho Western Areas Campaign was all part of the liberatory movement. ME. JUdTICLi RJMPFF S

"nd so it was stated in documents. ME. MAISALS i

And, and so it is, properly looked at. ME. JUSTICA RUMPFF s

I don't think you need concern yourself with any implied argument that it was or could have been only for the liberation... MR. MAISALS t

It was suggested, My Lord, that these grievances were artificially created at the time of legislation. That is false, demonstrably false. And exploited, and exploited for the purpose of agitation. That is false, demonstrably false. And Your Lordship knows that the term "exploit" has got a sinister connotation. My Lord, look at the heading in regard to Bantu Aducation, page 10734 which I have read. And the whole of tho sub-heading in regard to education. Look at pages 10731 with regard to segregation and the pass laws. And Your Lordship will see that this docu-ment proves conclusively, it is conclusive proof necessary, that -very single ofie of the African National Congress campaigns arose out of genuine grievances of the people whom it was their duty to represent. These matters, My Lords, these discriminatory laws, in whatever shape or form - I am not saying whether they are right or whether they are wrong - but their

2425®.

impact had been felt by the people against whom they were directed, xinrl it was the African Notional Congress' duty to represent the views of those people in these matters.

•̂ nd My Lord, we submit that it is a fair inference from the failure by the Crown to put this document as part of its case, although it was found in the possession of many of the Accused, - it is a fair inference from tie failure on the part of the Crown to cross-examine to show that this is asally a violent document, that the inference to be drawn is that the document itself is a perfectly proper and legitimate statement of the policy and aims of the African National Congress. And having regard, My Lord, to the Crown's methods of conducting its case and presenting its argu-ment, which was generally by referring only to such documents and pieces of evidence as was favourable to it, it is fair to say that this document goes some way towards destroying, the basis of the Crown case. My Lori, it would be quite absurd to suggest that this document is a violent revolutionary document. Revolution-ary document, that it certainly is, having regard to the natur; of the proposals put forward. But it is oubmitted, My Lord, that not even the Crown can contend that this document affords any basis for the suggestion of the Crown that there was a conspiracy for the violent overthrow. Now M* Lord, the document remained the sole - the principal policy document of the ^.N.C. through four fifths of the Indictment period. It still remains a basic policy document. And there is nothing, My Lord,

Collection: 1956 Treason Trial Collection number: AD1812

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