A preliminary survey of political trials in 1980 indicates no real change in the way they are conducted and used as in instrument of repression. There has been no reform of the abuses which led to the appointment of the Rabie Commission of Inquiry into Internal Security Legislation in 1979. The disputed provisions of the 1977 Criminal Procedure Act (concerning defendants' access to legal advice) were sharpened by amendments in 1978 and 1979, and 1980 was the first year of full implementation of the streamlined Act. The trend towards State involvement in every stage of the legal process has intensified.
Criminal procedure works to the disadvantage of the political prisoner at every stage. In advance of full court proceedings the defendant is required to make a plea. If this is guilty the State is in most cases relieved of the necessity of proving the case in court; the magistrate has only to satisfy himself the plea is correct. The state obviously has an interest in obtaining a plea of guilty, so speeding up the judicial process. Many defendants continue to be unrepresented at this stage so incorrect pleas are likely and difficult to reverse.
Reports of the court appearances of Oscar Mpetha and his 19 co-accused mention a number of defendants requesting the magistrate to obtain legal advice for them.
Speedy trials of undefended accused are unlikely to be adequately reported in the press so figures for the number of current trials must be inadequate. Trials under such legislation as the Riotous Assemblies Act are especially likely to fall into this category. On 16 February 1981, 176 Krugersdorp bus drivers appeared in court, pleaded guilty and were sentenced (undefended) on the very day their alleged offence of illegal strike was committed.
More serious offences, which could carry the death penalty, must be proved in court, even when the accused pleads guilty.
Defendants pleading not guilty are examined on the plea and the nature of their defence. Legal advice is essential because silence is misconstrued as guilt and damaging admissions elicited from cross-examination will be used later in the full court hearing. The 1979 Criminal Procedure Act established that such admissions should be presumed to have been made voluntarily. This put admissions on a par with confessions and leaves the burden of proof on the defendant. Defendants asked to plead may be hearing the charge against them for the first time. They are obliged to outline their defence when they can have no knowledge of the prosecution's case.
Since 1977 a conviction has been possible on the defendant's confession alone. In general statements by the accused are a feature of all political trials. In the case of Mathabe of the Soweto Students League he was convicted on his confession alone (allegedly the result of an assault which left him semi-deaf) after all the corroborating witnesses had been proved to be lying.
When statements or confessions are challenged by the defence because they were obtained by torture or extensive interrogation a "trial within a trial" takes place. The defence is rarely believed - during 1980 defendants Gerald Segone, Archibald Mzinyathi and Bingo Bentley, Roger Schroeder and Renfrew Christie all challenged the admissability of statements made after torture but in all cases the magistrates disbelieved them. In the case of Mathabe even the evidence of a magistrate who had seen his wounds was insufficient to satisfy the higher court.
Devices more subtle than torture may be used. Nicodemus Motapo, at present on trial under the Internal Security Act (ISA) testified that he gave a detailed statement to the police in the belief he was to be called as a state witness.
The other area of increasing State control is over evidence of the State witnesses. Under Section 10 of the ISA and Sec. 185 of the Criminal Procedure Amendment Act of 1978, witnesses may be detained for the duration of the trial providing this starts within six months of their detention. In March 1981 20 people were so detained under the ISA. Witnesses are kept incomunicado and allowed only one visit a week by a visiting magistrate.
Indications of serious torture of witnesses have come to light, notably a witness in the trial of Nkumbi and Nkumbi who lost an eye. This is difficult to prove and will not be made easier by a ruling in the recent ISA trial of Shongwe and 7 others that statements made by visiting magistrates (which could refer to evidence of assault) should not be made available to the defence. However, doctors' reports may be handed over.
A current appeal - of Nxumalo and Ngobese - is based on the evidence that the state witnesses were assaulted.
There is a "strong similarity between the ill-treatment of potential witnesses and defendants. Trials yields statements by witnesses testifying to avoid detention or torture and changing their stories until the prosecution is satisfied. Hope Mamabolo an executive member of the Black Municipal Workers Union testified in the case against Mavi, Dlamini and Mazwi that he had to make three statements before they were satisfied and released him from detention.
In spite of such pressure the State cannot guarantee that witnesses will repeat their statements in court or even testify at all.
Sentences of up to 5 years can be imposed for failing to testify: two witnesses in the Sabotage Trial of Nadusa and others, Vinto Kuse and Mzonke Jacobs were jailed for 12 months for this offence. Those who change their statement in court are liable to prosecution for perjury as happened to the 3 chief witnesses in the Fort Beaufort Public Violence trial in December 1980.
Since 1977 parts or indeed whole trials have been allowed to be held in camera so further isolating witnesses from the public and making the defence job more difficult.
Where defendants are under 18 in camera proceedings are the norm although the accused can request otherwise. More often, selected key prosecution witnesses testify in camera. A new development was noted in the Berger and Pillay case when Mr. A. an undercover agent of the security services remained unidentified, not because of the exigencies of the trial, but because of his own job. Defence lawyer Denis Kuny described this as a "drastic departure".
To deal with the new level of resistance to its rule the regime has diversified its use of various laws. Prosecutions for having undergone or recruited others to undergo military training are still dealt with mainly under the Terrorism Act. But common law charges are often used as alternatives to or replacements for the security charges. This increases the chances of conviction, and also has political advantages for the regime.
In the trial in Pretoria of nine ANC guerillas, the State used the common law charge of High Treason (under which James Mange was sentenced to death in 1979) and obtained convictions against the nine, resulting in three death sentences and six prison sentences of between 10 and 20 years.
The nine trained ANC fighters were charged as having a common purpose with each other and with the three involved in the Silverton bank siege by virtue of their common membership of the ANC. This enabled the State to introduce evidence relevant to the siege and to various other incidents of guerilla activity with which the defendants could not be proven to have had connection. The burden on the State to prove particular deeds rather than general affiliation was thus reduced. The ANC rather than the individuals were on trial with 'expert' evidence on its history and tactics being taken.
