The treason trial of Patrick BALEKA and 18 others was interrupted in March by a legal argument over one of the two assessors hearing the case in the Delmas Circuit Court alongside Justice Van Dijkhorst.
The controversy arose during the evidence of Morake Petrus MOKOENA, the fourth of the defendants to take the witness stand. Mokoena was being questioned about the UDF's Million Signature Campaign which was launched in opposition to the new constitution and the three 'Koornhof' Bills. Professor W A Joubert, a founder member of the Progressive Federal Party, a former parliamentary candidate and a respected legal academic, revealed to the judge that he had signed the petition.
Joubert was summarily ordered to recuse himself on the grounds that the campaign was a significant factor in the state's case. Without discussion with the defence or prosecution, but apparently after consultation with the Judge President of the Transvaal, Van Dijkhorst also decided the trial should continue with only one assessor. This may be a unique occurrence in a case where the second assessor has not died or become otherwise incapacitated. Furthermore, he refused the defence an adjournment to consider the legal position and Mokoena's evidence continued.
On 20 March defence lawyers lodged an application for the trial to be stopped, stating that the court was no longer properly constituted. The action was supported by affidavits from the accused and Professor Joubert and called alternatively for the removal of Justice Van Dijkhorst and W F Krugel, the remaining assessor. The defendants noted indications that Krugel would be prejudiced against them — he was a member of the Broederbond and, in his capacity as a magistrate, acted as liquidator for a number of organisations banned in October 1977. Some of the accused had belonged to those very organisations.
Justice Van Dijkhorst responded to the application on 30 March in a statement denying any bias on his part or that of Krugel. When the defence sought to submit an additional report from Joubert answering the judge's comments, counsel was warned against possible contempt of court. Van Dijkhorst subsequently dismissed the application.
