24333

MEL. MAISELS

the country to develop into?— The African National Con-

gress, my lord, has always accepted the fact that South

Africa is what is commonly calle d a multi-racial country

- a country in which you have different sections of the

population - not a passing population, a permanent population

- - we accepted this fact. "

"The A . N . C . has never for example stood for a policy

of Africa for the Africans which might be a policy that

would be possible in some other countries, but certainly

not in this country."

( H Q ) Did you believe that you could obtain a multi-racial

society following on a revolution, a violent revolution?—

No, we didn't believe that. We believed that a violent

revolution would leave such an aftermath of bitterness and

resentment in the population that indeed the country would

be unstable."

( "Q ) Why did you believe that - was there any historical

reason why you took that view?— I should say in this coun-

try we have the example of the bitterness which has existed

between the Afrikaners and the English people as a result

of the Boer War*"

( " Q ) Where did you in the A.IT.C. feel that the real strength

of the African people in this country lay, if not in mili-

tary action?— We believed that the strength of the African

people in this country lies in their labour power, in the

fact that the country's economy rests upon them and also

to a lesser extent, of course, on their buying power - their

economic power."

( " Q ) DO you feel that this power can be suppressed?— I do

not feel that this power can be indefinitely suppressed, I

24354

MEL. MAISELS

feel that in the long run the fact that we in this country i

are 3d very largely inter-dependent must count in the solu-

tions of the problems in this country . .

My lord, I apologised in advance for reading that

long passage, but this , my lord, was the most complete

evidence given by any witness as to the formulation of the 5

Programme of Action, what was sought to be achieved, the

phil§sophies behind i t , and my lord, not only was Prof,

Matthews n4t challenged in cross examination on this evidence

but thetfe is even a more curious feature, ir perhaps it^s

Hit curious, that ray learned friend Mr4 Trengove, s ave for jo

one passing reference, made no attempt to deal in anyway

in his argument with Prof, Matthews' evidence. I draw you*

lordship's attention to the only reference that he made

to Prof. Matthews, it is at page 18695, Vol , 89 , where he

says this - in fact he seemed to accept it : 1 5

"The other next form of struggle, my lord, which

I want to refer to in this leoture is the boycott".

He's talking about the lecture B.25 which I shall

deal with presently, my lord,

"Now, my lord, boycott is described as a form 20

Of passive resistance; i t ' s a refusal to co-operate in

the co-operation of law and customary regulations, and

i t ' s interesting to note, my lord, that this lecture does

not concern itself with the economic boycott or economic

25

sanctions, and it seems to confirm what Prof. Matthews

said in his evidence, as he indicated in his evidence that

when the Programme of Action was adopted in 1949 the boy-

cott envieagedthen was not economic sanction but to exert

sme form of pressure."

That's the only reference, my lord, that we 've

24335

MEL. MAISELS

been able to find to this what I would call most valuable

piece of evidence given by an utterly credible witness

such as Prof. Matthews was. I ' l l deal with the somewhat

halfhearted criticism of Prof. Matthews' evidence at a

later stage, my lord, on another part of the case, but

certainly, my lord, his evidence was not challenged on

this - - it couldn't be challenged, my lord - - and if

that evidence is accepted, my lord, with respect it des-

troys- - I hope I don't put it too high it destroys

the basis of the whole of the Crown argument.

BEKKER J ; It needn't be accepted for your pur-

poses

MR. MAISELS % Quite so, my lord. This interpre-

t at ion of the Programme of Action, my lord, was dealt with

by four other witnesses and they were not cross examined

either. Mandela, Vol .74 , pages 15774 to 5; Luthuli , Vol .

57 , pages 1476 to 82, Resha Vol. 77 , page 16579; Yengwa

Vol . 83» page 17500 , and he specifically made the point,

nylord, that the adoption of the Programme of Action didn't

change the non-violent policy and he wasn't cross examined,

my lord.

EBFKER J ; You are going to deal with Matthews'

evidence later?

MR. MAISELS; Yes , my lord; your lordships means

on the wuestion of his being a credible witness?

BEKKER Jg I was wondering whether ZKM.6, the

speech he made at Queenstown, was put to him, where he

deals with the Programme of Action and he says " I t ' s quite

clear we can't go on constitutional basis but by revolu-

tionary tactics."

24336

MEL. MAISELS

MR. MAISELS; It was not put, my lord.. I 'm

pretty sure that none of these speeches were put to him.

I ' l l get ZKM.6, my lord; it wasn't his Presidential address

ZKM.6 was the Secretarial report, draft secretarial report

found in his possession. Is that the one that was altered

by handwriting, my lord? I 'm going to deal at a later

stage with all Prof, Matthews' but I ' l l check that i f your

lordship allows me.

ilftw* my lord, i t ' s undoubtedly correct that the

Programme ©f Action is a basic document A^N^C. policy

and its standing is undoubted,

Cnnco, Vol , 54» page 10881, says soj Luthuli

V*l ,57» page 1 1 4 H / 2 and page 11476 , and Prof , Matthews

- w e l l , I ' d better look at this reference - Vol , 87»

page 18283 - that 's an extract, my l»rd* from ZKM,18 which

is a presidential address given by him to the A . N , C , Cape

Annual Conference. I t ' s merely a reference, my lord - -

•The Programme of Action which was adopted by the A,IT ,C ,

in 1949 states it quite clearly - - the fundamental prin-

ciples of the Programme of Action of the A . F . C , . . . . e t c , , etc

Now, my lord, before dealing with my learned

friend Mr.Trengove's argument in detail , i t ' s necessary to

refer to one document referred to by him in Vol ,89 , page

18688. My lord, I propose to refer to my learned friend's

argument by page so that it might be an easy reference,

and on that page, ray lord, my learned friend dealt with

a stencil - he called it - Exhibit C . I 9 4 , and that, my lord,

has a paragraph 5; apparently a motion for a programme

of action before the 1949 Conference, and at paragraph 5 ,

which roads "Lastly, Congress realises that ultimately the

24337

MEL. MAISELS

people will be brought together by the inspired leader- 1

ship, courage and boldness even to the extent of suffer-

ing imprisonment and death for the cause."

Now my learned friend says, my lord, that that

paragraph doesn't appear in the Programme of Action and in

place of that is the following paragraph which says t ^

"Congress realises that ultimately the people will be

brought together by the inspired leadership under the

banner of African Nationalism, courage and determination"«

Then he proceeded, my lord, " I t ' s quite olear

that anybody embarking on that programme with its methods i 0

for the achievement of National freedom which involved

these radical and constitutional changes, one does seek

to along the unconstitutional path and one must

be prepared to face prison and death. They realised the

implications - those people who adopted this programme

realised the implications of this Charter, this programme

from the very outset. Only one wonders, my lord, why the

words were omitted from the Press statement."

Now, my lord, my learned friend Mr.Trengove's

20

curiosity and wondering could have been set at rest if he

had asked Prof. Matthews or caused Prof. Matthews to be

asked this question he was the person who was very much

concerned with the actual drawing up of this document.

I t ' s idle for learned friend to make that kind of u,

comment, my lord, if he doesn't seek a means of clearing

it up with the numbers of witnesses who were present to

give evidence. Another witness was Mandela, wy lord. Why

should he keep a thing like this for his argument and

pooceed to base something on it and not put to any of the /•o

MR.M/iISSLS

Defence witnesses?

Then my learned friend proceeded to argue

on pages 18689 to 90 , that the programme of action was

part of a programme, as he calls i t , directed at an attack

on our society "based as it was on the constitution, and

on the contradictions as they saw it inherent in a

Capitalist and Imperialist society, and he said, my lord,

continuing at page 18707? Vol.90 % "That the only reason

why the A . N . C . called its policy non-violent was because

tley say when the masses and the State are brought together

and they clash, the State will use violence f i rst . "

Continuing with the argument at page 18832, my lord,

he said that the programme of action was not a programme

of persuasion, not a programme of pressure but a programme

of unlawful intimidation calculated to create violent con-

flict between the masses and the State in order to achieve

the overthrow of the State and capitulation of the State.

Now, my lore1, we submit that that is a wholly

unjustified submission, and we submit i t ' s unjustified on

the evidence in this evidence and we say it is remarkable

that this submission is made on the evidence. On the

evidence given before the Court - not really challenged -

because, my lord, it has to be borne in mind that unless

the Crown can make this submission it fa i ls . It fa i ls

on the question of the Programme of Action, my lord, and

if it fails ont he Programme of Action then certainly,

my lord, on the new conspiracy it fails entirely. And

my lord , we submit it must fail if the Programme of

Action is read in its plain ordinary meaning; the words

of the document support the Defence case; the methods

24339

MEL. MAISELS

get forth of a non-violent method, which we say are the

methods of the A .N .C . My learned friend can make it

f it his case only by putting a gloss on it and his gloss

is derived exclusively from certain documents which by

no means share the status of the Programme of .Action as

an official policy document.

Now, my lord, on what evidence does my learned

friend rely for his submission to your lordship that the

Programme was a programme of unlawful intimidation cal-

culated to create violent conflict between the masses and

the State in order to achieve the overthrow of the State?

And, my lord, before I deal with that it is to be noted

with respect that this programmewhich now looms so largely

in the Crown case, although it had been mentioned in

numerous official A . N . C . reports, for example, my lord,

the A .N .C . annual conference report of 1953, NRM.ll

Vol .15 , page 2901; A .N .C . Cape Uitenhage, June 1954

Conference, ZKM.18, Vol. 87 , page 18283 , ny lord.

And numerous copies of this has been found in the posses-

sion of the accused. And this document was never men-

tioned in the Violence Schedule, was never mentioned in

the Opening, iry lord, and we suggest that the whole of

the argument is an afterthought based on no valid grounds.

The f irst document, my lord, upon which my

learned friend relies for his statement that the A .N .C .

knew and realised the consequencesof their actions - what

those consequences would be , that the State would be

obliged to take strong measures to suppress and stamp

out their activities - - is said to be B . 25 , my lord.

That, my lord, is a lecture headed 'Political Organisation'

24340 MEL. MAISELS

and is a roneoed lecture published by the Transvaal A . N . C . 1

in or about 1952 or the beginning of 1953? it is put in ,

rry lord, either as B.25 or ERM.37 and 38. It was not found

anywhere else than in the Transvaal . .

BEKKER J; I think J .G . Matthews had a copy.

I may be wrong* 5

MR. MAISELSi I think it was another one, my lord.

I f m not sure whether it -was this one, but my lord, I »11

check that, But one thing - and I shall show your lord-

di ips later that Matthews> Luthuli, Yengwa, Maloao,

Ntsangani, Matchabie - - they never heard of i t . But it 1 0

plainly is a roneoed lecture published by the Transvaal

Now, my lord, may I make it clear, we don*t think

that this lecture is of any importance at all in this

case, but I propose dealing with it fully because it

really formed a major part of my learned friend's argu- 1<J

ment on this political organisation.

BEKKER: J ; Well , there is that passage about

strikes, strikes leading to rebellion . .

MR. MAISELS; Yes, my lord; now, my lord, one

20

must study that in the context of the ibcture and the way

i n which the lecturer is talking about it . I propose

analysing it , my lord.

Your lordship will find the lecture in the re-

cord in Vol . 6 , pages 1175 to 81, and it deals, my lord,

with the political methods open to the A .H .C .

According to Mandela, my lord., Vol . 77, page

15849 to 15853? it was one of a series of five lectures

prepared for the Transvaal Executive of the A.2T.C. Mandela

can't recall who wrote it ; he himself wrote another lecture 30

24341

MEL. MAISELS

In the series called 'South Africa is governed1. Sisulu 1

wrote a lecture on that. According to Mandela these lec-

tures were used for political education in the A . N . C .

In his cross examination in Vol. 76 , page 16068, and the

following passages, Mandela indicated that the arrangement

was that the Transvaal Executive members would use their 5

lectures as the basis for lecturing to the membership.

Now, my lord, the Crown relies on this lecture

as indicating an intention to educate in such a way as

to provoke violent action involving the masses; that's

the basis of the Crown argument, ray lord. Now the Crown 10

also suggests, my lord , that this lecture shows that the

A , N , C . realised that the consequences of its actions par-

ticularly strike action, would be violent on the part

of the masses. That argument, my lord, is at Vol . 8 9 ,

page 18691 and the following pages. The Crown relies , 15

ray lord, on a number of passages in this lecture, and

the first point the Cravn relies on is a statement in

the lecture to the effect that one cannot always accurately

predict the course of a political strike. It might be

influenced by such unpredictable factors as an economic 20

pressure, war, e t c . I t ' s the beginning of the lecture -

(reads) , ray l o r d . . . . . . . " a l l those affect the course of

any political struggle."

Now, my lord, the Crown interprets this appa-

rently as meaning that the author realised that there r>R

would be factors beyond one's control in a political

struggle, and consequently when embarking on i t , in par-

ticular when embarking on an unconstitutional struggle,

one may be acting recklessly and one will be responsible

for untoward results.

24342

MEL. MAISELS

New, my lord, on this we simply say that all that

the author is saying is that political struggles are not

and cannot be inflexibly planned. That, my lord, is

surely a political truism. All sorts of uncontrollable

factors affect the success of any political struggle.

My lord, if there's a war, and the country were to need

the services of the Africans, a political struggle might

tie on quite a different form because the Government might

willingly make concessions because it wants to use the

Africans in that war. I t f s quite impossible, my lordj

to i'ead into this what my learned friend reads into it',

and i t ' s surely farfetched to argue from this kind of

statement that those who launch a political campaign

must be held responsible for any possible result which

may, through the indefinite future, result from i t .

Then, my lord, the lecturer deals with forms

of struggle in other times. My learned friend did not

read this and that was the introduction to the question

of passive resistance , strike a ct ion and agitation. It

is the paragraph, my lord, which appears as paragraph 5

at page 1176 in Vol . 6 and it reads, "Let us consider

some of the forms of struggle people have used in other

times" , and it is plain, my lords, from this , that the

writer is discussing the matter objectively in the light

of what had happened. He points out the limitations

and advantages of various forms, and deals firstly with

passive resistance, which he says, my lord, can be used

for preparing people for future struggle and for other

forms of mass reaction. And the point relied on by the

Crcwn in this connection, at page 18694, line 15 to the

24345

MR. MAISELS

end, is the fact that this article contains a criticism

of the effectiveness of passive resistance as used by

G-handi in India. The author makes a point, ray lord , that

unless this form of passive resistance is allied with

other forms of struggle it may in fact serve to damp

enthusiasm. Now, my lord, that 's not a rejection

of passive resistance? the author is simply saying

that passive resfetance in certain limited forms may not

in itself prove to be effective, and it should be com«*

bined with other forms of struggle which are mentioned

in the document. It is certainly not to be read as

ny learned friend attempted to read it - as a criticism

of non-violence. Mandela, my lord, disagreed with the

particular statement in the lecture; his evidence is at

Vol .75 , page 15850, but the real meaning is that the

author is explaining tie limitations of a particular form

ofpassive resistance and he probably has in mind Ghandi's

personal individual acts of passive resistance as a model.

The Crown then proceeds in .its argument, my

lord, and points out that boycott, as used in this lecture,

does not refer to economic boycott but to refusals to

co-operate with the authorities. The examples given, my

lord, such as the refusal to take passes, or the mass fail-

ure to pay taxes, shows that the Crown is correct, absolutely

correct. The Prosecution argued from this that mass boy-

cott of this type - that is the refusal to take passes or

failure to pay taxes - the Prosecutors argued from this,

my lord, that mass boycotts of this type is designed

and I quote the word, my lord to make the law unworkable,

and that, says my learned friend, is a direct attack on

the . . of the State in order to change the con-

stitution.

24344

MEL. MAISELS

Now, my lore1., we submit that while the results 1

of boy otts of this type may be , might be to make cer-

tain particular laws unworkable, and might well have the

result of making certain of the functions of the Govern-

ment difficult - but i t ' s not Treason, ray lord. Cer-

tainly i t ' s not treason covered by this Indictment, my 5

lord. I t ' s not violence, nor is it calculated or in-

tended to lead to violence.

Our witnesses, my lord , throughout have spoken

of exercising not persuasion but pressure on the Govern-

ment and the electorate. These forms of boycott, ray 1°

lord , are prime examples of the type of pressure which

could be exercised. The Prosecution, my lord, on the

one hand has scorned the idea of pressure, but , ray lord,

on its argument here it virtually concedes the effective-

ness of this form of pressure - - designed to make the !5

laws unworkable; a direct attack on the

It concedes the effectiveness of this non-violent pressure.

Why then, my lord, if the Crown concedes that,

as it has, should the accused not have believed in it?

20

I t ' s impossible, ny lord, that anyone can say - anyone,

my lord - i t ' s impossible for anyone to say that a mass

refusal to pay taxes wouldn't compel a Government, how-

ever reluctant it is ,to make major concessions. And

this , my lord , without the use of any violence on the 25

part of the A .N .C . or of its followers. One's only got

to think about itin our submission to come to that con-

clusion, and one might indeed think, my lord , with

respect, that this type of action would have a far better

hope of success than an armed insurrection. I ' l l deal J J

with that later , but be that as it may it is impossible

24345

MR. M I S ELS

for the Grown to say that the accused or the A .N .C . did

not "believe in it efficacy. In fact, my lord, the Crown

now apparently concedes it . The Crown is compelled to

argue, my lord, in effect that pressure of this type amounts

to treason, which we argue firstly is not treason - and

in any event i t ' s not the form of treason pleaded in

this case.

The next argument, my lord, submitted by my learn-

ed friend is in the same volume, page 18697 to 8 and 9' -

and it ' s the argument on consequences of political strike

action, and i t ' s summarised at the foot of page 18699 -

" I t ' s quite clear from this document" referring again to

B . 25 , my lord, "that the African National Congress fully

rslised the consequences of political strike action and

strike action as a political weapon; they knew, my lord,

at the outset that that type of action could and probably

would involve the country - would involve them in a violent

clash with the State - - that if masses are used against

the State it could turn into a war, into a rebellion, it

could turn the country into a bloodbath, but that didn't

deter them".

The main point which is really made by the

Crown, my lord, in connection with this lecture and the

point upon which it lingers, is its reference to strike

action. Now, my lord, the author having dealt with

strike action says that strikes may, aid can lead to

rebellion and armed insurrection in that the Government

uses force against the strikers who are then compelled

to retaliate. That's the effect of it , my lord. The

examples given are the strikes of 1922 and 1946.

24346

MEL. MAISELS

Mandela explains this, ray lord, Vol . 75 , pages 15851 to

3 , as an historical statement of strikes which may be

gaerally correct. He said it wasn 't the A . N . C . policy to

encourage armed clashes, indeed, and on the contrary

they favour the method of stay at home strikes which

reduced the chances of armed conflict, and he said in

crossexamination, my lord, in Vol. 76 , page 16068 , that

as far as the 1946 strike was concerned there was a

factual inaccuracy. Your lordship wil l remember that

in the lecture they seemed to indicate that there was a

clash, both sides using force. It was suggested, my lord ,

in the cross examination that it was strange that the

A .N .C . should have let a lecture go out with this in-

accuracy. Mandela explained that the lecture was written

by a particular author and that in lecturing no doubt the

lecturers who used the lecture would correct the mistake,

and your lordship Mr. Justice Bekker asked the witness

at page 16070 whether this lecture wouldn't have been a

golden opportunity to refer to the policy of non-violence,

and your lordship Mr. Justice Rumpff at page 16083 to 4

in the same volume again asked whether the advantages of

the stay at home shouldn't have been explained in this

lecture in discussing strikes and stay at homes. Now, my

lord, there is no doubt about it , if your lordship pleases -

I say this with respect ~ - that these points which your

lordships made are well taken. There is no doubt, my lord,

that this lecture could have been better written. Things

might have been put in which one doesn't find in the

lecture, such as a general discussion of the methods of

nonviolence, non-violent struggles and the advantages of

MEL. MAISELS

non-violent struggles over violent struggles. No doubt,

my lord, he might have written a better lecture, or rather

someone else, perhaps more sensible and better informed

might have written a better lecture, but it cannot be

inferred - - and that is the only point, my lord - - it

cannot be inferred from the failure to put in what might

have been put in , that the idea of violence was being in-

directly propagated, because that 's the only point.

In fact, my lord, your lordship the Presiding Judge pointed

out the passage cited - from that passage cited - that

the answers to the questions had posed through the witness

- - " I think your answer might possibly be , that if it

had been intended to include violence it would have con-

tained a paragraph on armed revolt or something like that,

which it doesn't . Here it deals with matters which prima

facie are unaccompanied by violence except on the question

of a s tr ike , in certain circumstances."

Nov/, my lord, one must after all look at these

lectures, in our submission, from the point of view of an

author who presumably accepts unquestionably, or unquestion

ingly, that the African National Congress policy is non-

violent , and we must assume in the light of the policy

that has been preached over the years - and which it has

been established has been preached - -that it must be

accepted unquestioningly - again - by the p.udience. I f

this is thr assumption, my lord, - and it is the only

reasonable assumption - then there is certainly nothing

sinister in a failure to take the opportunity to refer

to the merits of non-violence as such, or failure to

take the opportunity to explain the merits of the stay

at home. In such a context, my lord, the reference to

24348

MEL. MAISELS

the violence whichhas resulted from strikes in the past 1

falls into place as a mere historical reference, and in-

deed, my lord, I draw your lordships' attention to the

Opening which was not read "by my learned friend: Let

us consider some of the forms of the struggle people

have used in other times, such as resistance, boycott,

agitation and strike action.

RUMPFF Js Mr. Ma is e ls , what would the meaning be

of the phrase used by the author, that when the State

forces the strikers they might be compelled to retaliate

1C

- I think that is the word used there?

MR. MAISELS: May I just get the actual passage,

nylord; Strike action representing direct clash between

working class and does often lead to rebellion, revo-

lution and armed clashes - - if the ruling class resorts 15

to violence, if it thinks its rule threatened

RUMPFF J : Perhaps he refers to a particular

strike where they were compelled to retal iate .

MR. MAISELSs The 1922 strike, my lord. I ' l l

just read that, my lord. "The workers faced with such 20

an attack also find their peaceful strike transformed

into a minor war 7 A civil war, in spite of themselves.

This was the situation on the Rand in 1922 , when the

Europeans, headed by the miners, organised a general

strike? armed forces were used against them by the 25

Government. The strikers in turn organised armed attach-

ments tod efend themselves and prevent the smashing up

of the s tr ike . "

RUMPPP J: There is some other phrase where he

says . . .

24349

MEL. MAISELS

MR. MAISELS; My lord, could I perhaps hand your

lordship the document. My learned junior says he knows

this .

RUMPFF J ; Where he says they were compelled to

retaliate; he uses the word 'retaliate' there.

MR. MAISELS; I ' l l just check, my lord. I think

possibly I ' d better hand to your lordship . .

RUMPFF J; Perhaps that phrase was used by Counsel

for the Crown, when he dealt with this .

MR. MAISELS; It may be, my lord; I cannot find

the exact passage. I 'm not saying i t ' s not there, my lord.

RUMPFF Js You quoted i t , but you may have quoted

the a rgument.

MR. MAISELS; I think we quoted from the Crown

argument, my lord, but i t ' s not actually in the document.

RUMPFF J; Yes , that may clear up; in the mean-

time you may proceed.

MR. MAISELS° Yes, my lord. While your lordship

is just looking at that point, your lordship Mr. Justice

Bekker asked me whether this document wasn't found in

Matthews's possession, that is J.G-. Matthews. Well , the

document that was found in his possession was another

document called 'Economics and Politics in South A fr ica . '

JGM.5, my lord.

Nov;, my lord , proceeding then with the document

there is this feature, that if one is considering probable

intended conseauences one considers there is some possi-

bility of success, and there is no suggestion, my lord,

in this lecture even that such a rebellion brought about

a result of the strikers turning upon their masters, has

ever been successful. I t ' s not suggested at a l l , my lord.

i V

I

24350

MEL. MAISELS

Although, my lord, there are examples ofs trikes which

were successful without force and without violence.

My lord, one sees references to effective strikes in

Finland and Belgium, in the same document. I t ' s not

suggested that there was any violence in those strikes.

On the contrary, the obvious readings of those references

is that people are being told that strike method as such

can be , and has been successful. One might say that

another criticism of the lectures, another gap, is the

lack of an explanation of exactly how those strikes came

to be successful. The lecturer doesn't say at what

point, and how negotiations were overcome. My lord, this

is another indication of the futility of the Crown's argu-

ment, I submit, that there was no word of negotiation in

A . N . C . documents* and speeches. One assumes, my lord,

that those who organised the strikes in Belgium and Finland

struck for a certain objective, and led their followers on

that basis. One doesn't imagine ? my lord, that those lec-

turers told their followers " I f you come out on strike at

a certain stage the Government wil l negotiate with u s " .

They struck for an objective;, my l^rdr and in due

course the negotiations a re open. The way this lecturer

deals with strikes is in accordance with this comnonsense

view. The lecturer tells his readers, if your lordship

reads i t , that strikes were success ful and that Governments

have given in to the demands of s trikers. The concept of

the Government opening up the negotiations is assumed, my

lord; i t ' s taken for granted.

Now, my lord, certain witnesses were asked

questions about this. Mandela, Vol . 76 , page 16078 said

24351

MEL. MAISELS

clearly that he didn't think that this lecture would be 1

understood as an advocacy of violence. Surely he cannot

be contradicted on this point, my lord? How could one

extract an advocacy of violence from this lecture?

Res ha , Vol. 80 , page 16826, said that he disagreed

with what the lecture said about the possibility of strike 5

action leading to violence on the basis of his own expe-

rience. He says it hasn't happened as far as he knew.

But the Crown? my lords, has suggested that it has.

Ntsangani, Vo l . 7 7 , page 16347 to 8 says he does

not know whether what that lecture says about strikes is 1 0

correct. He says he never worried about i t . In any event

he says the AeN.C. prefers the stay at homes.

Maloao, Vol . 82 , page 17291 to 2 , admits there

is a possibility of clashes resulting from strikes , and

he says that 's the reason why the stay at homes are en- 15=

couraged by the A .N .C . At page 17294 to 6 - dealing

with the concept of f lexibility of political struggle,

he says quite naturally and correctly that flexibility

must be . . , was even a given policy, and that's the

fundamental feature. 2 0

Yengwa, Vol . 84, page 17630, says i t ' s a matter

of historical fact that strikes can lead to rebellion - p e r h a ^

hesays, Congress has never planned i t . The Crown cannot

contradict this neither, my lord.

Conco, Vol . 56 , page 11287, says he didn 't know

the document. He conceded s trikes could have the results

stated by the lecture. I t ' s a matter of history, and also

commonsense, but whether it is planned or expected is

another thing, my lord.

24352

MEL. MAISELS

Neither Matthews, V o l . 7 , page 18233, nor Luthuli, Vol .60 1

page 11922, had seen this document, nor had Maloao, 17291,

Yenga, 17600, Tsangani 16347 and Matchabie 17806 .

I f one looks again at the passage on strikes

one sees that there is nothing to it in our submission

but a statement of what has and can happen in strike ac-

tion. There is certainly, my lord, no suggestion that it

ought to be aimed at. That's the real point, my lord.

Indeed the reference to the 1946 strike is passing clear.

Read as a whole the passage shows that it is the efficacy

of strikes as such - - that is what the author is putting 1 0

forward. The whole lecture, my lord, deals with the non-

violent methods of struggle , and the vhole tenor of the

lecture is the effectiveness of their struggle, not their

ineffectiveness. There is , and, my lord, i t ' s not in any

15

way surprising, an expression of honest opinion on the

possible limitations of the G-handi-ist r© thod of passive

resistance taken on its own, but that's a matter for dis-

cussion, my lord. I t ' s a reasonable thing to put i n , but

one doesn't find any other suggestion of the inefficacy of 20

non-violent methods. I f this were an organisation, my lord,

which was aiming at teaching its members that in the long

run violence would be necessary and desirable, it is a very

strange lecture indeed, very strange indeed, my lord.

It teaches them quite the opposite. Anyone, my lord,

reading and studying and agreeing with it would in our

submission - - assuming that it receives the close and

careful study of all these people who come to these lec-

tures at the end of a hard day's work - - assuming 'they

give it a close and oareful study, line by line and word

24353

MEL. MAISELS

by word as Counsel for the Crown does - - so that anybody

doing that would more probably come to the conclusion

that the Congress method of non-violence must be accepted

and must win in the end. That's a far more probable con-

clusion from that lecture than the one the Crown seeks to

draw, my lord.

RUMPFF J; Just looking at it , briefly , is it

wrong to say that the author here analyses the political

efficacy of various forms of struggle in regard to a

peoples' movement? He distinguishes passive resistance

from boycott - he puts them into a separate category. . .

MR. MAISELS; Passive resistnce, merely doing

nothing, and boycott is another form which is passive - -

correct, my lord .

RUMPFF J : He analyses each , the advantages and

disadvantages of each form of struggle in a Peoples Move-

ment, and then he says , inter a l i a , 'strike action repre-

senting direct clash between the working class and the

ruling class or master can and often does lead to rebellion ,

revolution and armed clashes since the ruling class will

resort to violence i f it thinks its rule threatened. '

Having regard to the other evidence that w e have before

us , is it correct to say that the Congress Alliance wanted

in the end, if the ruling class refused to budge, wanted

a clash in the sense that it wanted to present the ruling

class with a generalstrike?

MR. MAISELS; Your lordship means that the

highest form of industrial action was the strike. . .

RUMPFF J; A general strike.

MR. MAISELS: Yes. .

24354

MEL. MAISELS

RUMPFF J: A clash for master . . . I ' m using

the words here in this . . .

MR. MAISELS: For raster?

RUMPFF J; For master, yes . He says here -

I read under strike action - 'Strike action representing

the direct clash "between working class and ruling class

for r® ster can often lead to a rebel l ion ' . There is

a political str ike , and when the strife is a clash, a

direct clash between the two classes, as a test for who

slall be master, then that may lead to r e b e l l i o n .

MR. MAISELS; Ho, my lord , I say that they never

visualised it in that way at a l l .

RUMPFF J ; Ho, no , I 'm putting you the question.

On the evidence that we have, was it the object of the

Congress Alliance in the course of action which was taken

and if the ruling class failed to concede anything to

present the class , eventually - i f intermediary steps

failed - with a nationwide strike? For r® stery?

MR. MAISELS; Ho, my lord , not for na stery,

certainly not for kestery. There is no evidence of that

my lord. The position is that it is quite clear that

it was contemplated that at some stage , depending upon

certain circumstances, it might be possible, it may be

necessary - it might be desirable - for the purpose of

achieving tneir aims, of obtaining a share in the govern-

ment of the country, for the Congress Movement to have

a general s t r i k e , withhold their labour power . . .

RUMPFF J; W e l l , what would be the normal expec

tation of a member visualising the fulfilment of the

demands of the Congress Alliance - a vote for everybody -

24355

MEL. MAISELS

what would be envisaged? Would he not envisage the Con-

gress Alliance being the governing power?

MR. MAISELS; He might, he might envisage that

the Congress Alliance as such would be the predominant

party . .

RUMPFF Js And as such, the master?

MR. MAISELS Well , that would take the part of

the normal political process. Does your lordship really

put that? I don't know, with respect . . . when your

lordship says - - -

RUMPFF J ; No, I 'm putting it to you - a member

reading this . . .

MR. MAISELS; Then your lordship says, that the

member of the Conservative Party in England says that he

is the master . . .

RUMPFF J ; I 'm putting it on the basis of a

manber of the African National Congress reading this - -

reading this section, having regard to the evidence that

we've got in regard to the objects of the Congress Alliance

v/ould he not infer from this that if we fa i l , i f the Con-

gress Alliance fails along the route to soften the Govern-

ment, and if that final clash comes - in the form of a

strike - then strike action, representing direct clash

between the working class - - I 'm a member of the Congress

Alliance - - and the ruling class - - that's the white

class - - 'for master' .

MR. MAISELS ° Mastery.

RUMPFF J; I 'm quoting it exactly as it is here .

"can and often does lead to rebell ion , revolution and armed

clashes, since the ruling class will resort to violence if

it thinks its rule is threatened". In other words, is it

24356

MEL. MAISELS

possible then for a member to read into this , or to read

this as meaning, "Wel l , i f and when - if we don't succeed

along the route, and if finally some time in the future

there has to be a general strike, then there may be violence

by the Government, and there may be retaliation" . There

may be. I 'm putting it high - it can't be put any higher.

MR. M I S ELS; I don't even concede that, my lord,

with respect „ An ordinary member of the A .N .C , is working,

starting off, my lord, on the basis that he is working for

a multi-racial State of non-violence. Why should an ordi-

nary member of the A .N .C . think so? I submit not, my lord,

and may I put it - - I hope your lordship doesn't think

me disrespectful, but one really is trying to extract the

utmost ounce from that phrase and say "Well , it may be so"

- if one puts it at its highest. I will submit, my lord,

with respect,that one wouldn't do that - not in the ordinary

reading of it . He 's saying these things have happened -

it does happen-

RUMPFF J% Although the author says here "since

the ruling class will resort to violence if he thinks his

rule threatened" 5 that is ' violence on the part of the

State.

MR, MAISELS? That, of course, my lord your

lordship appreciates . . .

RUMPFF J; Well , if the key word in this is

'for master' .

MR, M I S E L S ; Oh, yes, direct clash between

working class and ruling class for mastery can and does

lead to . . .

RUMPFF J; Well , that is the key word, because

24357

MEL. MAISELS

here it envisages a final clash for who is to be the master

MR. MAISELS: I f there is such a violent clash.

RUMPFF J: Yes.

MR. MAISELS: As I say, my lord, i t ' s a discussion

its for discussion . . .

RUMPFF J; What is the date of this?

MR. MAISELS: I ' l l give your lordship the date,

1952 or 1953? according to the evidence of Mandela, my

lord, published by the Transvaal in or about 1952 or 1953 .

EEI-PE R J: Transvaal A . N . C .

MR. MAISELS: Yes , published by the Transvaal

A . N . C . Executiveo

RUMPFF J: Is there nothing else about this lec-

ture in regard to the A .N .C?

MR. MAISELS: No, my lord, and in fact - excepting

to show that it never became a general policy document of

the A . N . C . - because it w as only circulated partially in

the Transvaal by a body with limited powers.

RUMPFF J ; Was it ever mentioned by the Transvaal

A .N .C?

MR. MAISELS; There is no evidence -apart from

Mandela's evidence as to the status of this document, my

lord, there is not a word of evidence about i t . The docu-

ment itself doesn't show i t , if your lordship sees the

heading; that's all it is . It might have been issued

to a few people - it probably was so, because it was

only found as far as we can make out in two places.

But, my lord, we submit that anyone reading

the document as a whole, and a fter all that is the test

to apply, he would more probably come to the conclusion

MEL. MAISELS

that the Congress methods of non-violence was to be accept-

ed and would win in the end, and if he were indoctrinated

my lord, with this lecture, that some time in the future

to suggest to him that we will now turn to violence , he

would, my lord, to say the very least, be extremely sur-

prised, and if this is conditioning for violence - and

if this is conditioning for violence - - that expression

seems to have no meaning. You don't condition people for

violence, my lord, in this way. There is not even mention

of the famous mutiny, the famous Indian mutiny which the

Crown so often referred to. My lord, suppose the lec-

turer had said that if the Africans struck until they were

allowed to form trade unions, and that in those circum-

stances it might well be - having regard to previous

experience - that the State would use violence against the

workers, how would the Crown translate that discussion -

as to what has happened in the past, into an incitement

of violence?

My lord, we submit that the highest at which

this He cture can be put is that strike action can, often

does lead to rebellion - the use of armed clashes, and

gives reasons for its views- and my learned friend said

- concluding his argument on this point, at page 18700

line 23: "That this document was deliberately provoking

violent action1'. That was the submission made by my

learned friend, page 18700, line 23 . Your lordship Mr.

Justice Bekker invited my learned friend to deal with

that submission, the probabilities; he failed to do so,

my lord. Nor, my lord, did the Crown really , in cross

examination, canvass the probabilities that the A .N .C .

was so encouraging their people. If it had this document

24359

MEL. MAISELS

and i f it was to be read in the way in which it is sug- 1

gested it might be read, why didn't the Crown canvass the

probabilities that the A . N . C . was so encouraging their

people? But, my lord, ray learned friend 's contention

fails on his own case. If he says that this document

was deliberately provoking violent action, this document 5

was in 1952, and i t ' s part of the C rown case that it

was never to be so read; it was to be at some indefinite

future date, not even during the period of the Indictment.

And in regard, my lord, to the Crcwn in the cross examina-

tion of witnesses, canvassing the probabilities that the 10

A .N .C . was so encouraging their people, there was plenty

of opportunity. Look at the evidence, ray lord, of

Matthews, Vol. 85 , 17898 and 9 and the passage I have

already quoted. Here was a chance to say "Ah , yes , but

wht about this? What about that? What about this pas- 15

sage in this ]e cture?" Nothing of the kind was done, my

lord. But, my lord, the probabilities are overwhelming,

that the A .N 3 C . wouldn't contemplate trying to overthrow

by violence, even in the general s trike position which is

envisaged here, and the possibilities - and that 's the 20

highest one can put it at . My lord, what arms, what

tanks, what planes - what army? Thr probabilities are,

my lord, in our submission overwhelmingly against the

suggestion that this document was deliberately provoking

violent action, or that it intended to be used as a means

to that end.

My learned friend refers in his argument

carrying on from the passage which I 've quoted - - to the

necessity of harnassing the masses, and my learned friend

24360

MR .MAISELS

says - again dealing with, this document - that it was

realised in the Programme of Action that in the type of

action there envisaged the masses have to be harnassed.

He says they had to get the masses into action, and he

says 'that is why the same lecturer refers to agitation 1 .

And he says the action was to be against the State in

order to compel the State either to use force against

the masses, or to capitulate.

Now, my lord, let us try and examine this ques-

tion of harnessing the masses, and let us not see whether

this is not really again an application of the smear tech-

nique. Let 's examine this question of harnessing the

masses dispassionately if possible.

My lord, i t ' s a phrase used, as far back as 1945

- 1943 , 1954 - in the original Africans' claims. . . .

(COURT ADJOUREED)

ON THE COURT RESUMING s

MR. MAISE'S ; My lords, this morning when I

was dealing with B.25 I said as far as I knew it was

only found in the Transvaale We have found one reference

to its having been found somewhere else; a man called

D .A . Seedat - DAS»57> which was said to be the same as

B . 25 , referred to at page 4277-

BEKB5R J ; Where did Seedat live?

MR. MAISELS; Durban; he was a member of the

Indian Congress, Durban, my lord. My lord, I was about

to deal with this question of harnessing the masses.

24361

MEL. MAISELS

My lord, ia a boycott is likely to achieve results, if

confined to A . N . C . members only? Is a stay at home likely

to be effective if applied by A .N .C . members alone?

If a cfemonstrat ion is to be made, is it likely to produce

more or less effect dependant upon whether its confined

to A.IT.C. members , or if the masses are to take part?

Surely, my lord, if pressure is to be applied the maximum

possible amount must be applied. What would happen, my

lord, if there were a stay at home organised and only

A .N .C . members . . .

BEQ5 R J; Well , I think the evidence of Luthuli 1 0

is that they had toiely not only on A .N .C . but the public at

large. Then the Crown uses that against you.

MR. MAISELS; Then the Crown uses it against me

that every political party, anywhere in the world, sL ways

15

wants to get as many people on its side as possible.

BEKKER J; Yes; the Crown uses it in this way.

You may know, as a member of the A . N . C . , of the policy

of non-violence, but when you deal with people who don't

know the policy of non-violence they may misinterpret,

ad inasmuch as you had to rely on members other than the

A .N .C . your utterances were calculated to lead to a certain

result.

MR. MAISELSs That is why, my lord, the Defence

witnesses constantly answered that "We expand and we hope 2 ~

to explain it all the time - any such thing as this mass

action, if it has to come into operation - we hope that

our propaganda would be understood. . . by the masses.

And Matthews, your lordship will remember, says

that everybody knows their policy, not only members. He 30

24562

MR. MAISEIfi

says, "We've been in existence since 1912 - it ' s not a

new policy, i t ' s not a new organisation". That, my lord,

really wasn't challenged.

New, my lord, I was just analysing the situa-

tion where you couldn't possibly do anything unless you

harnessed the masses, or unless the A .N .C . gotso many

members that . . .

BEKKSR J; I think that's part of the Crown

case, that you had t o r e l y not only on A . N . C . members but

that everybody - - that the Crown sought to obtain from

Luthuli in cross examination.

MR. MAISSLS% And we don 't , my lord , dispute

that we wanted to do so. We say there's nothing sinister

there is nothing wrong in that, and there is no infer-

ence to be drawn from that of an advocacy of violence - to

overthrow by violence. We say we are doing what is the

normal and proper thing for every political organisation

to do.

Now, my lord, that is B .25 . The next document

relied upon by my learned friend is the document PDN.105y

which was read in at page 2816, Vol. 15 , my lord. My

learned friend referred to this at Vol. 19 , page 18702

to 3 and 4. My lord, i t ' s a document according to my

learned friend's argument at page 18702 headed 'Plans

for Organisation' . It was found in the possession of

Nokwe on the 5th December, 1956, - fournd in his residence

And it 's headed 'Plans for organisation' - a typed copy

of a document. Perhaps I had better read i t , lord.

BEKXER J; Is that the one . . .

MR. MAISELS° Methods of struggle - boycotts,

defiance, industrial action,- armed conflict . . . .

24565

MR. MAISEIfi

BEKB! R J; Yes .

MR. MAISELSs I t ' s apparently, my lord, an un-

dated and unsigned document - apparently prepared "by someone

in the Transvaal, and my learned friend's argument was

that it refers to armed conflict and the practicability

5

of that as a topic for lectures. My learned friend

says at page 18704, ,sThat you do not refer to allied con-

flict unless it is one of the things that you contemplate,

one of the things that you have in mind."

My lord, just look at subjects for discussion 10

first of allr I see one of the subjects for discussion

is Capitalism, 18704 - (reads). Methods of struggle, boycott?

defiance and industrial action, armed conflict , and their

practicability (reads on)."

Now, my lord, does that mean that the lec- 15

tures are directed to show that people are in favour of

it? For that matter in favour of Communism? The fact that

armed conflict is dealt with and i t 3 practicability, on the

face of it I would suggest, with respect, having regard

to the known position of Africans in this country 9 would 20

indicate that it would be impracticable? the very context,

my lord, indicates that*

BSKKHE _Js I think it really is dealing with

the personal position - Nokwe? he used that document and

another document in manuscript form, with an arrow pointing

to 'armed conflict ' ; and he said as far as ITokwe is con-

cerned that proved, in the absence of evidence from Hofcive s

that he knew that strike action would result in violence.

MR. MAISBLSs Your lordship, with great

respect, my lord - - first of all I 'm dealing with the

24364

MEL. MAISELS

Programme of Action, and not with Nokwe's personal position

at the moment. That will be dealt with in detail . But

the mere fact that Nokwe was in possession of this particu-

lar document doesn't show at all that his mind was running

along those lines at a l l . It doesn't follow.

BEKKER Js This and the other document.

MR, MAISELS; Yes, well , I 'm only dealing with

this one at the moment because this is the one referred to

on this heading of 'Programme of Action' by my learned friend.

I*m trying to divide our argument up, my lord, in some sort

of . . . . . but I 'm now concerned to show your lordships

that at least a possible interpretation of this document

- i f not a more probable one, is that the context suggests

armed conflict is impracticable. Now, my lords, Ts this

on official document. Any cross examination on it?

BEKKBR Jt I t ' s not an official document.

MR. MAISELS: No, my lord, I said is it?

I put the question, my lord.

BEKKER J: This document was found in pos-

session of a number of people«

MR, MAISELS: Was it?

BEKB R J ; Plans for organisation.

MR. MAISELS; No, no, my lord, not this

one, not PDNel05; I think this was the sole copy in exist-

ence. I don't think it was found in the possession of

anybody else , my lord. What document is your lordship

talking about?

BEK3S R J : Plans for organisation.

MR. MAISELS: No, my lord; asfar as I know

i t ' s only - - we asked the Crown a long time ago to give

us a reference to all exhibits to make sure that when we

24365

MEL. MAISELS

said FDN.105 was found on one person, one person and no-

where else, that we wouldn't be misleading the Court . . .

EEKKER J ; I may be quite mistaken.

MR. MAISELS; They refused to give it to us , rry

lord., and we may be forgiven if v/e slip up, but I am fairly

confident, my lord, that there is no other place. But may

I just leave it for the moment, my lord, just on that point

BEKKSR J ; Yes.

MR, MAISELSs But, my lord, let ' s assume it

was found somewhere else. That 's all the more reason for

the next point I make. Nobody was cross examined on it ,

my lord. Why wasn 't Matthews or Resha or Mandela or a

number of people cross examined on i t .

BBKiER J; Well , the difficulty is that if this

dcument was only found in the possession of one person what

would cross examination help?

MR. MAISELS; That didn't deter the Crcwn from

cross examining on documents . . .

BEKKS R J ; Yes, for another reason. The state

of mind, or the state of mind in the witness box . .

MR. MAISELSs No, the state of mind of the orga-

nisation, my lord; That was sought to be inferred from a

tin of paint cost 11 lives , my lord; or one of Ruth First '

articles . . but this was not put to anybody, my lord.

But, my lord, the real answer, of course, is

this; l e t ' s examine the speech of Prof. Matthews in

an address given to a special Cape conference in April ,

1952, page 18027, Vol . 86 .

RTJMPFF J: What'3 this?

MR. MAISELS; I was saying, my lord, that the

24366

MEL. MAISELS

real answer to this , if you look at a speech made by Prof.

Matthews on which he was led in chief, because it was a

speech put in by the Crown in the Preparatory Examination

and omitted to be put in by the Crown during the t r i a l .

He ! s talking about the Defiance Campaign and he sayss

' It is obvious that in our present un-arne d state it would

be futile and suicidal for us to think of an armed struggle

against the powers that be in this country; they have a

monopoly of the death dealing weapons devised by modern

science. With our bare hands we cannot hope to stop aero-

planes and tanks, machine guns and atom bombs. Although

history has shewn again and again that the mere possession

of force by no means is a decisive one in a war in which

moral issues are involved, our struggle in the circumstances

will have to be a non-violent struggle."

Why wasn't Matthews cross examined to shew that

his mind was running on armed conflict, my lord? Surely

i f the Crown invites your lordships to draw an inference

from this piece of paper where the practicability of armed

conflict is mentioned, it would have been logical for the

Crown to ask your lordships to draw a similar inference

from this speech of Matthews made in 1952 at a special

Cape conference, called in connection with the Defiance

Campaign. He wasn't asked that question, my lord.

BEKKER J : This you say clearly is an official

document?

MR. MAISELS: I would say that this is a docu-

ment - a statement made by a leader - an acknowledged

leader at the tine of the initiation of the Defiance

Campaign, at r special conference called for that purpose.

24367

MR. MAISEIfi

BEKKER J ; What does the Statute say? This

new rule - documents setting out policy is deemed to he

the policy.

MR. MAISELS; My lord, I 'm sorry

BEKKER J; Because that nay then be deemed to

be the policy of the A .N .C .

MR. MAISELS; I 'm sorry, my lord. . .

BEKKER J ; This new rule under which a document

on the face of it . . .

MR. MAISELS; Which appears to be policy. . .

BEKKER J; That shall be deemed to be the policy.

What does the section say?

MR. MAISELS; Prima facie evidence of the ob-

jects of the association, which on the face of it purports

to carry ou1 the objects . . .

BEKKER J; Would that not qualify under that

section as setting out prima facie the objects?

MR. MAISELS: Your lordship means Matthews?

BEKKER J ; Yes. I don't know.

MR. MAISELSi I 'm not sure, my lord, I 'm

really not sure. I T a like to consider that point. I 'm

not sure whether it would or wouldn't, but the fact is

that this was a very widely distributed document through-

out the A .N . C„

The point I 'm making, my lord, - - I 'm reminded

of cortsse that in the statement of Sisulu's it was said

quite plainly that a de cision Wcis "tci ken to distribute

this all over the country, to all A .N .C . branches, at the

time.

BEKKER J; A statement made from the Bc.r?

MR. MAISELS? Yes, my lord, and in fact Profc

24368

MEL. MAISELS

Matthews himself said it was widely circulated at the time; 1

he gave that evidence.

BEKKER J: He gave instructions, but he doesn't

know whether it was circulated. .

MR. MAISELS; I see, my lord, but the real point

I 'm on at the moment is not whether i t ' s a policy statement 5

- what I ' m concerned with is about the fact that Matthews

made this statement in 1952, Nov/, can anybody suggest that

because Matthews made this statement that this shows that

his mind was running on arned conflict? And yet, my

lord, that is a statement much fuller, much more complete, 10

showing that " I f we had arms we might like to use them",

and your lordships are invited seriously by the Crown to

take this document into account, in determining the state

of mind of the organisation. . .

KENNEDY J : Mr. Maisels, what did Mr. Trengove 1 5

submit about this document?

MR. MAISELS; Yes, my lord . . . 18704 . . .

KENIIEDY J : So far as my notes read it wasn't

found in anybody else'spossession. I may be wrong . . .

MR. MAISELSs No, my lord. That 's our feeling 2 0

ny lord; this is what my learned friend said --he spent

several pages on this document, considering it of great

importance.

KENNEDY J : You needn't read it all i f it doesn't

suit you.

MR. MAISELS1 It does actually, my lord.

KENNEDY J ; Very well, then.

MR MAISELS: The discussion that took place

after setting out the document at page 18702 and 3 he

says, "My lords, here one finds a document dealing with

24369

MR. MiISELS

a natter in which the African National Congress is actively

involved dealing with a form of struggle, andny lords, in

every respect dealing with it in the manner set forth in-

consistent with a l l the other documents that your lord-

ships have. The struggle of other countries, the libera-

tion Movement, Capitalism, Imperialism, the history of

white domination, forms of struggle - the forms of struggle

are mentioned - as set forth in the Programme of Action.

My lords, with this addition, that what must also serve

as a topic in lectures is armed conflict and the practi-

cability of that, together with strikes and other methods

in the present situation " My lords, that was found

according to our evidence in the possession of one of the

most important members of the Executive of the A . N . C . , a

man who was a leader, one of the leaders of the Youth

Movement, a oan who acted as Secretary-General, and it

deals with the matter setting out what programme in orga-

nisation should follow in educating members."

Your lordship Mr, Justice Bekkei: "Are you

correct there; the mere fact that armed conflict is men-

tioned, can one draw an inference that that was a topic

for discussion which would be urged on the people as op-

posed to any other conclusion?

Mr. Trengove: "My lords, I haven't come to

that point yet, but let me deal with it immediately. My

lord, what place does armed conflict, what does that do

in a programme unless that's one of the things that you

contemplate. It shows, my lord, along what lines their

minds were running."

They, my lord, their minds; what nonsense

is he talking here, my lord? Political lectures on the

2 4 3 7 0

MR. M/iISELS

the following topics and then he quotes the whole thing.

"Here, my lords, one can laugh that a/ra,y" - - that was a

reference to us, I think, my lord, we were laughing at

that stage - - "and you can. try and explain it away, "but

my lords, that type of thing finds no place in the train-

ing of people unless that is a method of struggle which

you contemplate."

Now, my lord, he was therefore arguing from

that that the mind of the organisation was running on

aroed conflict. My lord, the fact that he 's got to rely

on this kind of document in my submission exposes the

weakness of his case, and i f he was going to make the

argument, that this was the mind of the organisation, I

say . . .

BEKKER J ; Was Mr. Trengove there dealing with

the A .N .C . generally or Nokwe in particular.

MR. MAISELS; No, my lord, the A . N . C . in general.

This is on the Programme of Action; this is on the docu-

ment relied on to show that the Programmeof Action was the

programme of action for intimidation leading to violent

overthrow. I t ' s part of their main argument, my lord.

KENNEDY J; Speaking for myself, I think it must

be a wrong submission*

MR. MAISELS; As your lordship pleases. Now,

my lord, I 've got a complaint about this kind of argument.

I say that if the Crown wants to use that kind of argument

at a stage of the case - and my lord, there are thousands

of documents in this case - - i t ' s not unreasonable to

expect them to put it to some witness. Heaven alone knows

my lord, the witnesses were cross examined sufficiently on

obscure articles written by obscure writers, at obscure

2 4 3 7 1

MR. I-JAISELS

tines, in obscure publications. That was done, but when ny

learned friend bases on argument which he seriously puts

forward to show a policy of violence on the part of the

A .N .C . he doesn't put it .

Then my learned friend proceeded to another

basis of his argument, and he said this, ny lord, and this

really is a separate chapter on the argument on Programme

of Action; he said at page 18706,again in his main argu-

ment on the Programme of Action - - I want to read this

passage. "My lord, it was put to me yesterday as sub-

mitted that this type of programme, the methods set forth

in the Programme of Action, JEM.24, and explained in the

lecture 'Political Organisation', B .25 . . . . " Nothing

the kind, but still . . . " . . . . I say as a natter of

logic that programme, i f embsrked on relentlessly and with

determination on a mass scale logically, ny lords, that

will lead to an armed conflict with the State. It is a

natter of - - that is a reasonable probability on the

basis of ordinary logic e "

Now.; ny lord, and he says, continuing "But

the case is nuch worse, because i t ' s not only a reason-

able probability objectively, i t ' s a reasonable proba-

bility which the organisation actually foresaw."

Nov/, ny lord, I ' v e dealt with the probability

of what the organisation actually foresaw. I now propose

to deal, ny lord, with ny learned friend 's argunent on

what he calls a reasonable probability on the basis of

ordinary logic, always assuning, ny lord, that that can

properly forn part of an agreenent in this case.

My lord, I just want to nake a general caviat

on what we call 'ny learned friend 's logic ' . To prephesy

2 4 3 7 2

MR. MklSEIS

political events at an indefinite future date, my lord,

we would venture to submit by the exercise of pure logic

is a task upon which few wise men would venture with

confidence.

My learned friend asks the Court to perform a

still more difficult feat. He asks your lordships to

find beyond reasonable doubt how somebody else must have

prephesied political events at an indefinite future date. /

That's what his argument amounts to, my 5-ord. Opinions,

my lord, as to the logical consequences of political

actions are notoriously various. My lord, a view has

recently been expressed in public that the admission of

Coloured members to Parliament would lead logically to

miscegenation. That's an argunent been put forward.

A judge might personally believe this to be Itrue;

would he then be justified, because this is the train

of reasoning that the Crown takes - - i f a Judge personally

believed this to be true, that the admission of Coloured

members to Parliament would logically one day lead to

miscegenation, v/ould he then be justified in finding

that those who advocate the; admission of Coloured members

to Parliament intend to promote miscegination? That's

how the Crown case goes, my lord or are deemed to intend

it,\becau3e i t ' s a natural and probable consequence.

My lord, so stated it carries its own reputation, this

argument of logic in the field of political speculation.

My lord, I could cross examine a member of Par-

liament - a person who was putting forward that point of \

view and suggest tq> him 'But you cannot exclude the possi-

bility that you put Coloured men in the House of Parliament

you'll have to invite them to your house and that as a re-

Collection: 1956 Treason Trial Collection number: AD1812

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