TREASON TRIALS DEFENCE FUND No. 9

PRESS SUMMARY

This is the ninth issue of a regular bulletin giving a factual resume of the proceedings of the Treason Trial.

Period covered: 16 to 18 February 1959

DEFENCE CRITICISMS OF CROWN'S FURTHER PARTICULARS

WHEN the trial resumed on Monday, 16 February, Mr.Kentridge began by dealing with the submission of Mr.de Vos that the particulars given by the Crown in relation to the national liberation movement were adequate. Mr.de Vos had drawn attention to the place of the "Liberatory Movement" in the Summary of Facts, but Mr.Kentridge argued that the only inference that could be drawn was that the "Liberatory Movement" was alleged to have avov/cd violence.

Mr.Kentridge then passed to Mr.Trengrove1s submission that the only relevance of the means mentioned in the indictment was that they provided the connection with the overt acts (set out in Parts C,D and E). If so, that must be the end of sub paras (vi) and (vii) of Part IVB which were not connected with the overt acts in C, D and E.

ADVOCACY NOT AN ACT.

Mr.de Vos had submitted that, according to Professor Murray's evidence at the preparatory examination, the establishment of a Communist state by violence was inherent in the Marxist Leninist doctrine| therefore if the advocacy of Communism succeeded, the people would resort to violence. But Mr.Kentridge submitted that the advocacy could not be an act of treason, and quoted from the judgement in the case of Sachs v. Voortrekker Pers: ;IA philosophic adherence to Communism does not mean necessarily the intention to overthrow the Government by force." Other judgements were quoted in confirmation of this argument. Furthermore, if the accused were inciting the people to establish a Communist state by violence, it might be treason, but that did not necessarily mean that

•it would be the result of Marxism/Leninism. Mr.Kentridge contended that, in any case, sub para 4b(vi) of Part B did not show clearly the implication of violence and ought not to be in the indictment. This sub-paragraph read:

"Advocating, propagating or promoting the adoption and implementation in the Union of South Africa of the Marxist/Leninist doctrine in which doctrine there is inherent the establishment of a Communist State by violence."

"CONDITIONING" FOR WHAT?

Mr.Kentridge then turned to sub para (vii) of 4(b) and the use of the word "conditioning", protesting at his "castigation" by the Crown for not knowing what the word meant. But the Defence still asked "What was the 'condition' desired?" And the Crown still had not given the reply.

Mr.Justice Bekker intervened to ask whether this would matter if Mr.Hoexter's submission were correct, that the Crown must look at the intent of the perpetra-tor of the speech and disregard the effect. Mr.Kentridge replied that even so, this clause still lacked particularity.

NO BASIS FOR CROWN ASSERTION TEAT "IN THEIR LIFETIME'1 MEANT IN FIVE YEARS.

Referring to Part E of the indictment Mr.Kentridge asked the judges "What are the accused alleged to have done?" In the further particulars the pledging of themselves by the accused to achieve the demands of the FreedomCharter had

"been explained as meaning voting for the resolution. But the resolution quoted did not refer to "in their lifetime", and the Defence atill asked why in their lifetime was taken to mean 5 years. The Crown had stated that it relied on the Freedom Charter and the "resolution", hut the Defence was however prepared to accept that the Crown meant the preamble to the Freedom Charter. Mr.Justice Bekker then asked about the last three lines of the Freedom Charters

" Let all who love their people and their country now say, as we say heres *

THESE FREEDOMS WE WILL FIGHT FOR, SIDE BY SIDE, THROUGHOUT OUR LIVES, UNTIL WE HAVE WON OUR LIBERTY."

Mr.Kentridge replied that there was still no reference to in "our lifetime". The words were "throughout our lives" and the innuendo was therefore still an innuendo attached to words not used. The 5 years only existed as an "unspoken intention" of the accused!

Mr.Pirow had submitted that the 5 years was to be inferred from the latest particulars handed to the Defence, but Mr.Kentridge argued that these particulars were irrelevant because "five years" was an unspoken intention and that they were incapable of supporting the allegation. The particulars did not distinguish between in our lifetime and five years. And they also applied to all 17 of the accused who attended the Congress of the People, although the intention was private and unspoken!

INADMISSIBLE AND IRRELEVANT SPEECHES made Mr.Kentridge pointed out that a number of the speeches wcr^/by persons

who were not accused and not even co-conspirators; surely their speeches must be inadmissible and irrelevant. In the case of the documents relied on by the Crown, it appeared to be the contents on which reliance was placed, and not possession, authorship or knowledge.

When Mr.Kentridge had read and commented on a few speeches, showing their irrelevance to in our lifetime or five years, Mr.Justice Rumpff asked if it were necessary to read the full speeches but Mr.Kentridge replied that the Crown had not limited itself in the particulars to any portion. He pointed out that several speeches had begun or ended with "Freedom in our lifetime!" and contended that this was a slogan and did not have the meaning which the Crown imputed to it.

He then read from other speeches in which there was reference to Bantu Education etc., but no reference to "in our lifetime" or 5 years. Yet Mr.de Vos had said that the particulars spoke for themselves. In searching for what the Crown relied on, he had come across "Making headway before Malan disappears". Could this be it? If so, it was worthless for the purpose relied on. When asked if any speech had a reference to 5 years, Mr.Kentridge said that he did not want to be unfair to the Crown; there was the situation where someone said "Luthuli will come after Malan". At this point Mr.Justice Rumpff said "Surely the Crown can't be relying on the next election!"

Mr.Kentridge complained that if the Crown relied on only a few speeches it should not have supplied the particulars in this way, forcing the Defence to study all the speeches. Mr.Justice Bekker commented on the phrase "Before we achieve Freedom some of us will have to die". Mr.Kentridge submitted that even so it was not referrable to in our lifetime for it could mean violence. Several more speeches were taken showing that there was no reference to "In their lifetime" or 5 years. Mr.Kentridge then referred to the statement of Mr.Pirow that he didn't want to pick out the speeches because the Crown relied on all this as background. Mr.Kentridge invited their Lordships and go through the speeches and look at them as background, claiming that this would not help to explain how, for instance, Mrs.Joseph had voted at the Congress of the People for the Freedom Charter to be achieved in 5 years. Some of these speeches were in fact made a year previously. "There is no relationship between these

-5-speakers and the people at the Congress of the People", Mr. Kentridge said.

It had been stated by the Crown that 5 years could be inferred from the speeches and the documents, but it was clear that if there were only a few references in all the documents and speeches to five years, that would not be sufficient to say that everything fits into the pattern. "It must either be in the particulars or else it must be self evident". He then quoted a speech made in July 1954* "If we listen to him, (Luthuli) we'll have freedom in five years." This speech had nothing to do with the Congress of the people or the Freedom Charter. "Why should-17 others in June 1955 have a certain intention related th this? Once again the Judges asked Mr. Kentridge to merely refer them to the speeches which contained references to 5 years and 3aid that they would accept the . « submission that the other speeches did not refer to 5 years.

But Mr . Kentridge objected that the Crown might Gay that speeches omitted were not irrelevant, and continued withe examination of the speeches in- the particulars, pointing out that irrelevance and in some cases their inadmissibility where they were made by persons who wore not even co-conspiritors.

Examples of quotations were: "Ittook China 30 years to achieve freedom; to achieve-a lifetime of freedom takes & lifetime of struggle." "Within 5 years we can be in Parliament," (said in November 1956 and by a person not even a co-conspirator). Another man (not even present at the congress of the people): "Luthuli will be Prime Minister in 5 years." "Swart bans people for 5 years! During this time Swart and Donge3 will be gono." "It is important that the coming generation must enjoy freedom in their lifetimef" "I feel that if more people are called into "the struggle we shall get freedom in our lifetime." "Only if we work hard shall we get freedom in our lifetime."

CONTENTS OF DOCUMENTS

Passing to the documents, Mr. Kantr idge submitted that in all the 40 documents nothing relevant had boon found and protested that the Defence ought not to have had to go through all the documents searching for rclevance.

Mr. Justice Bekker interjected that the Crown, must be assumed to be serious in their allegations concerning these documents which they sub-mitted they relied on j:.i toto.

Mr. Kentridge then made the following points relating to the documents in these particulars: (a) Some documents do contain the phra.se "In our lifetime" but not

all the documents. (b) One document relied on actually contained the phrase "It would be

folly to minimise our obstacles. It will be a long tough struggle..." (c) In a report of a conference of tho Transvaal Indian Youth Congress,

the Chairman quotod "If I don't live to see that day, my son will see it, and if not my son, then his son."

Mr. Kentridge submitted that there was nothing whatever in these documents to support the allegation that the 17 accused had pledged themselves to Qvorthrow tho Govocnment by violence in order to achieve the demands of -the Freedom Charter within five years.

Reverting to his original argument in the attack on the indictment, Mr. Kentridge complained that there wore a number of aspects with which Mr. de Yos had not dealt in his reply, notably the attack on Part E of tho indict-ment and the question whether the 17 accused who attended the Congress of the People there reformulated or reaffirmed in Juno 1955 the intention to over-throw the government. If the allegation were that these 17 accused had first onte rod into an agreement to overthrow tho government by violence and had then made an act of reaffirmation in June 1955> the Defence submittod that this was not a second overt act for it was not capable of taking tho con-spiracy anywhere.

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The question of the pledge appeared to be important, for if the pledge went, then in their lifetime must also go.

Para 4 (b) 1 alleging the Congress of the People to be a means of' the treasonable agreement would also be affected by Part E, and the Defence argued that it should in fact have no place in the indictment.

Finally Mr.Kentridge asked their Lordships, when examining the documents and speeches, to ask themselves whether one could reasonably infer from them that these 17 accused had resolved to achieve the demands of the Freedom Charter within five years.

DUTIES AND POWERS OF COURT

Mr.I. Maisels, Q.C., dealt with Mr.Pirow's submission on the duties and powers of the Court. Mr.Pirow had argued that the Court had a duty to remedy an indictment if it were possible without injustice to the accused. This submission was based on the English statute but Mr.Maisels submitted that in S.A. Law the Court could only quash, refuse to make an order to quash, or order the Crown to amend. Mr.Pirow had suggested that the Court should draw the indictment for the Crown, but that would be to bring the Court into the arena of Conflict.

Mr.Maisels then dealt with Mr.Trengove's submission that the Defence was not entitled to the particulars requested, quoting from the Criminal Code "Each count must set forth the events of the charge as may be reasonably sufficient to inform the accused of the nature of the charge" and submitting that there was no basis for the Crown's contention that having alleged overt acts of treason, they were not obliged to give particulars. Mr.Justice Bekker suggested that the Crown might not, in para 4 b (i) to vii of Part B, have intended to set up separate overt acts, but merely explanations. Mr.Maisels replied that this would be putting the cart before the horse as Parts C, D and E of the Indictment alleged acts in pursuance of Part B 4 1> and contended that the allegations in Part B 1 must be taken as overt acts, and that the accused were entitled to the particulars relating to these allegations.

ABSENCE OF VIOLENT ACTS

Mr.Nicholas had argued that, in peacetime, treasonable conspiracy is a conspiracy to commit violent acts, and the Defence still wanted to know what violent acts the accused had agreed to do? The overthrow of the state could not be the act. It is a metaphorical expression describing the con-sequence of acts. The violent or treasonable acts must lead to it and there-fore the accused were entitled to the particulars if the grounds from which the agreement to commit treasonable acts was inferred.

CROWN APPLIES FOR THREE FURTHER AMENDMENTS

On the resumption of the trial the following day, Mr.Pirow contended that neither of the two points raised by Mr.Maisels had been raised before and informed the Court that the Crown had filed three notices of amendments to the indictment.

Mr.Justice Rumpff pointed out that in the final clause of part A and in the contents of part E, the number of overt acts did not appear.Did the Crown intend to rely on one overt act or 9 overt acts? Mr.Pirow replied that he had thought that this had been clear, but that one of the amendments would remedy the difficulty. Mr.Justice Rumpi'f suggested that the first amendment would affect Mr.Maisels1 argument, to which Mr.Maisels added that he might have to start the argument all over again, askings "Is this the last amendment? If not, let's have themJ Days of argument haire been wasted." He denied that any new points had been made in his reply to the argument, irrespective of what Mr.Pirow oontended.

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DEFENCE RENEWS ATTACK ON WHOLE CROWN CASE

After a brief adjournment for the defence to study the ©ffect of the amendments, Mr.Maisels submitted that if the Court were to grant these amend-ments it might be necessary to request a postponement of the trial for the preparation of further argument, particularly in regard to part E. His present argument would however be only partially affected since even if the separate overt acts in Part B were held not to be overt acts, they were the agreements which were the basis of the acts in parts C, D and E. "It doesn't help the Crown to wriggle as they have been wriggling since last August" said Mr.Maisels, "these agreements are pleaded as agreements to be inferred and once they are pleaded not as express agreements, the accused are entitled to the facts on which the allegations of each of them is based."

Mr.Trengove had said that it could take 6 months for the Crown to supply particulars of violence and Mr.Pirow had said it was impossible.

Mr.Maisels submitted that even if it took six months, it must be done. It was a matter of law, and the accused were entitled to it. "Six months is no answerI The Crown has had two and a quarter years J If it is impossible then the Crown has no case.'1

"WHERE" AND NOT "WHY".

The accuracy of the allegations of violence must be doubted unless there was a serious attempt at particulars and not the type served up for "in our lifetime" and the period of five years. The Defence had listened in vain for any real argument as to why the Crown was unable to put violence - or the case - into the pigeonholes into which they wanted the Defence to put it. If the Crown's case was genuine and bonafide, there should be no difficulty in giving the facts and circumstances from which the agreements were inferred.

If the Crown can't do it, then they shouldn't draw the indictment and were not entitled to bring the accused to Court. "We are entitled" said Mr.Maisels, "to know the case we have to meet. How otherwise shall we know what witness we have to cross-examine. The Defence is not interested in the Crown's reasons. We want to know where they put a particular thing, not why they put it therel"

Mr.Justice Bekkers "Is 'where' not dangerously close to why?"

Mr.Maiselss "No. The Crown may be wanting to use a particular spee»h for a particular purpose, e.g. for 4(b)(i) "to oppose the authority of the State" - does it go only into that pigeonhole? The summary of facts must be pigeonholed and by the Crown, not the Defence. If the Crown wants the accused to be Sherlock Holmes, then this offends the primary principles of law relating to indictments.

Mr.Justice Bekker: "But does not the Crown say, 'Here are the clues for Sherlock Holmes| work it out for yourselves"? Where is the line to be drawn? The Defence cannot find out how the Crown's mind works."

Mr.Maisels reminded their lordships that Mr.Pirow had contended that reference to non-violence in these speeches might be intended to promote violence. This might be so, but which of the speeches gave a basis for this?

DEFENCE DIFFICITLTIES BECAUSE OF CROWN'S INSISTENCE ON INFERENCE

Passing to his submission that the Crown had failed to properly inform the accused of the allegations relating to their organisations, Mr.Maisels pointed out that according to the Crown case, each of the fifteen organisa-tions had adopted each of the 8 policies and means outlined in (part B4 of) the indictment. The Defence must therefore look for the adoption by each of the organisations of these 8 policies and means, and then look for the support by each of the accused and co-conspirators for the overthrow of the State by violence. From this point, the defence must go to the summary of facts, for the overt acts in (part B) of the indictment must be inferred from a large number of other factss-

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1. The policy of each organisation 2. The means adopted to carry out the policy 3. The ways of advocating policy 4. The circumstances in which each accused became a party

to the policy.

The Crown relied on all the facts in the summary to establish these facts, therefore from this mass of facts (including the facts relating to other organisations) each accused must infer that his organisation adopted a policy and decided on specific dates on the means set out in the indictment. Both the policy and the means must be extracted from a mass of facts. The Defence submitted that this was :,a wrong and indefensible approach by the Crownl"

CROWN ACCUSED OF MALA FIDES

Mr.Trengove had suggested that the policy of the organisation was to be inferred by public statements made by responsible members. "Why doesn't the Crown tell us; why keep it secret? V!ho are the responsible members?" The Summary of Facts did not disclose this. The Defence had found no state-ments by responsible persons to support the Crown case but exaotly the opposite of what the Crown alleged. Were the statements supposed to be double talk? Mr.Maisels referred to the statements of Chief A.J. Luthuli, President General of the African National Congress - a man who said constantly "No violence". He accused the Crown of mala fides and challenged Mr.Pirow to say who were the responsible persons and what they said. It must be done at some time.

Mr.Trengove rose immediately to ask for the Defence allegation of mala fides to be repeated. Mr.Maisels replied "If the Crown persists in this attitude, it is mala fides! It is not a question of what the accused said and what they meant by it, but what the Crown says they meant by it!" He asked "Is it impossible for the Crown to refer us to the speeches by the responsible persons which it relies on for the policies of the organisations? Or is the only acceptable explanation that the speeches don't support the Crown's allegations?"

WHAT EACH ACCUSED IS OBLIGED TO SEARCH FOR - NEW PRINCIPLE OF JURISPRUDENCE

The Crown was saying in fact "It's a jigsaw puzzle. Here are the pieces; you fit them together." Mr.Maisels submitted that this was a new principle in S.A. jurisprudence. Each accused was expected to search for:

a) The policies of the organisation, his own and others, and also indirect proof, which was more difficult.

b) The activities of each organisation in pursuance of its policy, which could include both direct and indirect advocacy..

c) Proof that he knew of and supported the policy of the organisations.

d) The extent to which he participated in the policy of the organisation.

Some speeches would prove all these, some only one or more; it might be a portion only of a document or speech. Some speeches were innocent in them-selves but the Crown claimed that all were relevant. Mr.Maisels saids "These speeches and documents can't be used as a vague background to the case or placed next to eachother to make a background of the Crown's own choosing."

MULTIPLICITY OF "PIGEONHOLES"

Mr.Trengove had said that the evidence in the documents and speeches could be pigeonholed provided there was intelligent reading of the Summary of Facts. But when constructing these "pigeonholes" there had to be

a) Policy pigeonholes b) Pigeonholes for speeches relating to the 8 means in the

indictment.

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c) Pigeonholes for i) Other speeches at the same meetings. ii) Speeches with sinister background, e.g. Mau Mau,

Korea, etc. (iii) 39 kinds of Communist speeches (according to

Professor Murray's 39 tests for determining whether a speech was communist.)

(iv) Speeches referring (1) to the liberatory movement (2) the Y/orld Peace Council (3) the Defiance Campaign etc., etc.

But even then the task would only be half donei Now more sets of pigeonholes must be constructed for the individuals and the organisations] Mr.Maisels maintained that Mr.Trengove's pigeonhole argument could not hold water; it was no pigeonhole but a honeycombi

Mr.Justice Rumpff: "I am afraid 'pigeon hole* was my word!"

Mr.Maiselst "But Mr.Trengove 'associated' himself with it."'

SUPPLY INFORMATION - OR QUASHING

"What is to be done?" Is the Crown to be given another opportunity to cure the indictment? The Defence says No.... If the Defence argument is correct then the Court must reject Mr.Trengove's claim that the information has been given and accept Mr.Pirow's case that it can't be given. It follows then that the Crown does not have an explicable course of action and can't go to trial on this indictment. It should not be allowed to cast around for anotherl If the Crown cannot give the information required by the defence, then the Court must quash the indictment."

Mr.Maisels reopened his argument on the twelfth and last day of the attack on the indictment by quoting authorities to support his objection to the Crown's submission that it was the duty of the accused to study a mass of documents and evidence.

DEFENCE OBJECTIONS TO NEW AMENDMENTS

Turning to the amendments brought by the Crown, Mr.Maisels opposed the second and third amendment, particularly that which sought to delete the words "in their lifetime" from the first paragraph of part E and the whole of the following paragraph

" the achievement in their lifetime of the demands set forth in the said Freedom Charter, which included, inter alia, the following demands:

1. Every man and woman shall have the right to vote for and to stand as a candidate for all bodies which make laws5

2. The national wealth of the country, the heritage of all South Africans, shall be restored to the people;

3. The mineral wealth beneath the soil, the banks and monopoly industry shall be transferred to the ownership of the people as a whole;

4. Restriction of land ownership on a racial basis shall be ended, and all the land re-divide-d amongst those who work it, to banish famine and land hunger;

5. All shall have the right to occupy land wherever they choose; - ••

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which, said demands the accused intended to achieve by overthrowing the State by violence."

Mr.Maisels submitted that these were not amendments in form but were based on entirely different facts. The Crown had brought the accused to Court on allegations based on certain facts, i.e. that the accused had pledged them-selves to work for the achievement of certain demands in their lifetime and to the overthrow of the State by violence. The facts alleged to support this allegation had now disappeared in terms of the amendment and new facts were before the Crown. Before their Lordships could ever consider granting an amendment, the Court must be satisfied that the amended indictment will be free from criticism. The Defence submitted that the Court could not be so satisfied because the proposed amendment did not deal with the contention of Mr.Kentridge that an unexpected intention cannot make an innocent act treasonable, there was still no indication of any expression of intention "This amendment will create as many problems as those it purports to remove!" said Mr.Maisels.

Mr.Justice Rumpff interjected "That is sol" and continued by saying that the Court must first decide on the rest of the indictment.

JOINT RESPONSIBILITY

Mr.Maisels then pressed for an answer to the question "Is each accused liable for the overt acts of other accused?" The words "in pursuance and furtherance of the said conspiracy" appearing in the preamble to parts C, D and E could be used

a) to taint an innocent act with illegailityj or b) to impose criminal liability on each accused for the acts

committed by other accused; or c) to achieve both purposes.

If the Crown intended to impose liability on each accused for the acts of all accused, new argument would be required. The Crown had refused to answer this question and if the answer were yes, the position would be that each accused would be charged

a) with the conspiracy alleged in Part B b) with the number of other offences in parts C, D and E personally c) with a number of further offences in parts C, D and E committed

by others, for which he would be held vicariously liable because they were committed in furtherance of the conspiracy.

If the Crown however were to state that each accused is not liable other than for the acts set out against him or her, then the overt acts must be numbered. For on this would depend the question whether the whole of the proceedings had been properly brought to Court.

CROWN'S REPLY TO DEFENCE OBJECTIONS

Replying to Mr.Justice Rumpff, Mr.Pirow maintained that the acts had been numbered through the division into parts A,B,C,D etc. He repudiated the onus on the Crown to interpret the indictment. "We stand or fall by the inter-pretation which the Court puts on the indictment."

VIOLENT INTENTIONS STILL PRESENT

Dealing with Mr.Maisels' argument on the amendment, Mr.Pirow submitted that although the question of "in our lifetime" and the inference of five years had been eliminated, the intention to overthrow the State by violence was still there and had always been there. No further particulars could be required as a result of the elimination of "in our lifetime" and the inference of five ye ars.

ACCUSED INDIVIDUALLY COMMITTED ACTS

Finally, Mr.Pirow informed the Court that each accused either alone or together with other accused committed separate overt acts for which no other accused was liable, and the Crown did not allege vicarious liability.

TREASON - OR CONSPIRACY ?

Mr.Justice Rumpff commented that the Crown's attitude towards vicarious responsibility might affect the whole indictment. Mr.Maisels then addressed the Court briefly on misjoinder ... submitting that it now appeared that parts B, C, D and E were the four counts. He pointed out that in part D only 7 of the accmsed were alleged to have committed an overt act, and in part E only 17 of the acc»sed. The effect of the Crown's amendment made it *lear that except for part B, it was clearly a case of misjoinder. The Crown could on this indictment only go to trial or. conspiracy alone.

Answering questions by the Judges, Mr.Pirow submitted that treason had its own law of liability, peculiar to treason and the nature of the overt act. All the accused were in the conspiracy and everything every one of them did was for the f»rtherance of the conspiracy, but the case of the overt act might be regarded as different although only for purposes of proof.

COURT MAY ALLOW EXCEPTION TO MISJOINDER LAW

Mr.Justice Fumpff then indicated that although in law no misjoinder is permitted, the Court might have to consider, in the case of treason where conspiracy is alleged and every one of the accused committed one or more entirely separate acts in pursuance of the conspiracy, whether an exception to the general rule should be made to permit the accused to be charged jointly because of the conspiracy.

Mr.Maisels submitted that although the difficulties of the Court were appreciated, it was not the function of the Court to change the Criminal Code. Why were the accused charged jointly? There was no reason why they should not be charged separately. The Crown must not be allowed by the Court to take advantage of the position to get a conviction jointly which they could not get separately. The question of the convenience of the accused must not arise, if it would deprive them of any statutory rights. A joint trial might be convenient for the accused but it would not be the law.

Mr.Justice Rumpff asked whether the position was that if vicarious liability were alleged, there would then be no misjoinder.

Mr.Maisels agreed, but added that the indictment would still be bad in law.

THE COURT ADJOURNS

The Judge President then stated that the Judges would require considerable time to' study the indictment and the amendments and adjourned the Court until March 2, adding that even then there would not be time for the judges to give all the reasons.

Mr.Pirow was given permission to submit a written argument on misjoinder, provided that the submission was first sent to the Defence.

TREASON TRIALS DEFENCE FUND

P R E S S S U M M A R Y

No. 12

This is the twelfth issue of a regular bulletin giving a factual resume of the proceedings of the Treason Trial.

Period covereds 15 — 17 June 1959 (Appeal Court Bloemfontein) 3 - 4 August (Resumption of trial, Pretoria) 10 August (Mr. Pirow's Opening address)

A P P E A L S T R U C K O F F

On 2 March, 1959? the Special Criminal Court allowed the Defence application to appeal on certain questions of law, (see Press Summaries Nos.10 and 11.)

The hearing began before the Appeal Court in Bloemfontein on 15 June, with the Crown arguing, as they had done in Pretoria, that on a proper interpre-tation of the relevant sections of the Criminal Code, the Court had no power to grant leave to appeal in mid-trial. The argument on the quashing of the indictment could only be heard after the conclusion of the trial if the accused were convicted. Alternatively, the Crown submitted that if the Special Criminal Court had the necessary power, its discretion should have been exercised in favour of the defence only in exceptional circumstances, and the present circumstances were not exceptional.

Mr.I. Maisels, Q.C., argued the contrary view which had been accepted by the Special Court. The Appeal Court, however (giving judgment on 17 June), upheld the Crown's main submission and the appeal was struck off the roll.

(The judges who sat were the recently appointed Chief Justice Steyn, Appeal Judges van Blerk, A. Beyers, Ogilvie Thompson and Acting Judge of Appeal Holmes.)

THE TREASON TRIAL RESUMED

Crown's Defence of Indictment and Information Supplied

When the Treason Trial of 30 accused resumed on August 3, the Crown objected to the Defence application for the quashing of the indictment. Mr.O. Pirow, Q.C., leading for the Crown, objected that

a) the facts in the application did not support the exception to the indictment or the application to quash;

b) neither the application to quash nor the exception to the indictment was permissible, in terms of Section 158 of the Criminal Code.,

Opening his argument on the first point of the objection, Mr.Pirow stated that the Crown had been asked to disclose certain documents and speeches on which it relied for the purpose of inferring violence. A mass of evidence had been given, totalling over 1,000 items and including documents and reports of meetings. It had been made quite clear that the Crown relied upon the evidence as a whole, and Mr.Pirow submitted that at this stage, unless the Court was prepared to go through all the evidence, the Crown must be the sole judge of the relevancy of the evidence. From the notice of the application to quash, there was no suggestion by the Defence that the evidence as a whole was incapable of supporting the allegation of violence.

Continuing the argument for the Crown, Mr.Trengove claimed that the Defence had failed to comply with Section 168 in that reasonable notice had not been given to the Crown, and that full grounds for the application to quash had not been set out in the notice, nor had the Defence given any reasons for

their assumption that the accused were prejudiced. The reason why the Crown should be supplied with sufficient particulars was obvious.

Mr.Hoexter then outlined the compliance of the Crown with the Order of Court made on 2.3.1959.

i. the policy of the organisations in relation to violence had been set forth;

ii. in respect of each organisation, the Crown had set forth the particulars of the speeches and documents relied on, together with numbered references to the record of the preparatory examination, so that it would be easy for the Defence to refer to them. These particulars had been served on the Defence on 2.6.59| on 17.7*59 the Crown had received a request for further particulars of which some had been furnished by the Crown (others had been refused) on 29- 7•59• Subsequently, the notice of exception and the application to quash had been served by the Defence.

In the notice of exception the Defence had complained that the further particulars furnished by the Crown did not comply with the Order of Court, in that the facts, speeches and documents were not confined to the issue of violence against the State, but the Defence had failed to inform the Crown which documents and speeches were objected to and the grounds for the alleged inadequacy.

The policy of reciprocal support of the organisations to which the accused belonged had been set out in the Summary of Facts, and at no stage in the prior hearing had the Crown been ordered to supply information as to the facts, etc. on which it relied for this allegation of reciprocal support. On 17.7.59? however, the Defence had asked for such facts in their request for further particulars.

The Crown had set forth the series of facts and circumstances on which it relied in relation to reciprocal support of policies, e.g. the Indian Congresses supported and co-operated with the A.N.C. in supporting the same publications, attending the same meetings, ' Executive members made speeches at meetings of each others' organisations.

The Crown submitted that the Defence contention that "they did not know what case they have to meet" was meaningless; it was clear from the judgment on 2.3.59 that violence was the only issue outstanding; the adequacy of particulars, other than violence, had already been argued in Court.

Defence Objections to Amplified Indictment

Replying to the objeetion by the Crown; for the Defence, Mr.H. Nicholas pointed out that the whole matter must be considered in its setting - which was the Order of Court which had prescribed what further particulars should be furnished. The Defence submitted that the Crown had failed to comply with the order, because the further particulars supplied had not been limited to violence as required by the. Order, of Court in terms of Mr.Justice Bekker's judgment. The accused should not be called upon to consider additional information.

Mr.Justice Rumpff, presiding, stated that the Court proposed to note the Crown objection to the application and to hear the Defence Argument, since to some extent the validity of the Crown objection would depend upon the argument presented by the Defence.

Continuing the Defence argument, Mr.Maisels protested that although the further particulars supplied by the Crown looked better, they were in fact nothing more than the "particularised policy of the A.N.C.". In two of the organisations, a microscope would be required to find any trace of violence in the quoted speeches. The Crown had still failed to give the parti-culars required by the Court on the issue of violence. The Crown must not merely establish co-operation, but show that each organisation wished to bring about political change by violence. For three of the organisations,

there was no allegation of support of the Freedom Volunteers.

The Defence contended that the Crown was seeking to establish conspiracy in an improper way; the same flaw remained as on the last occasion. If the blanket allegation of violence ware removed, there were no speeches, facts, etc., to support the charge of violence against the State for several organisations.

Mr.S. Kentridge then continued the argument for the Defence, saying that he would illustrate the gaps between the policies of the organisations. The case against the A.N.C., for example, asrset out in the documents, was entirely different from that set out for the Z.A. Indian Congress. In the case of the S.A. Coloured People's Organisation, it was alleged that A.N.C. delegates attended S.A.C.P.O. meetings and explained the A.N.C. policy,but the Defence had not been referred to any occasion on which the A.N.C. delegate ha<i "explained" A.N.C. policy.

The speeches relating -fco the Indian-Congresses showed only a policy of * non-violence. This Congress was being accused of violence only by means of a blanket allegation of support of A.N.C. policy. The Defence submitted that by relying oij the blanket allegation, the Crown had still failed to make the point of violence and had substantially failed to comply.with the Order of Court. .. .«

Resuming the argument on the second«day, August 4s Mr.Kentridge referred to the Court objection that whereas formerly the Defence had complained .of "too little information, it now complained of too much. Mr.Kentridge reminded the Court that the Defence had always complained of an undigested mass of facts from which they were- supposed to infer violence; there was now a smaller and semi-digested, mass of factsi

Mr.Justice Bekker commented that the Crown had committed itself by saying certain speeches were "violent"; it would merely be for the Defence to ask "Why?"

Mr.Kentridge went on to disagree with the claim of the Crown to be deemed the sole judge of relevancy, submitting that obvious irrelevancy could not be proper and repeated the Defence objection that the Crown had failed to comply with the Court Order.

The Court's ruling - Rejection of Defence Applications

Mr.Justice Rumpff said that on 2.3.59 the Court had ordered the Crown to inform each accused on what the Crown relied for the inference of violence in relation to the policy of the organisations. The Crown had supplied a comprehensive document setting out the facts relied on, and in response to a request for turther particulars, had supplied these on 22.7.59. The Defence was, however, not satisfied that the Crown had complied with the Order of Court.

The Crown had objected to the notice of exception on the grounds that it did not comply with Section 168 of the Criminal Code, which required adequate notice, but the Court did not find it necessary to consider this, as neither the exception to the indictment nor the application to quash could succeed. The Court was not called upon to consider the cogency of the evidence, the Crown had been called upon to supply information to the accused and had done so and, in the opinion of the Court, the accused now knew what case they had to meet and were not prejudiced by the information supplied by the Crown. The Defence had pointed out that the statement that organisations other than the African National Congress had had know-ledge of and supported the policies of the African National Congress preju-diced the accused because the Crown had not supported this allegation with primary facts. The Defence had also submitted that the further particulars supplied by the Crown were of no assistance becaused the accused had once more been referred to the record of the preparatory examination. The Court did not agree with this view. Although all the primary facts had not been given, the gist of the case against the accused had been sufficiently set out. The application to quash was therefore refused. , .

THE TRIAL PROPER COMMENCES

Accused Plead 'Not Guilty'

By agreement, the procedure of reading the indictment to each accused was then waived, and the accused pleaded individually "I plead not guilty to the charge insofar as the overt acts are laid against me". On behalf of the accused, Mr.Maisels then made the fallowing statement to the Courts

"It has already become apparent that during the preliminary stage of the case that the central issue is the -issue of violence.

FY

While no admissions, are made in regard to any of the Crown's allega-tions, the Defence, case will be -that it was not the policy of the African National Congress, or any of the other organisations mentioned in the indietment, to use violen6e against the State. On the contrary the Defence will show that all these organisations had. deliberately decided to avoid every form of violence and to pursue their ends by peaceful means only.

The Defence will rely for its contentions as to the policies of these organisations upon their constitutions, the resolutions taken by them at their conferen&es, and the pronouncements of their responsible national leaders. If necessary, these leaders will be called as witnesses for the Defence. The Defence will place before this court the material relating to these organisations from which their policies might normally be expected to be deduced.

In its indictment, the Crown has relied upon certain speeches, most of them by persons of minor importance, which may seem to suggest the existence of a policy of violence. Insofar as such speeches were in fact made in the terms alleged, the defence will say that they may have represented the notions of individuals, and not the policy of the organisations."

Addressing the Court, Mr.Pirow stressed the importance of the opening statement by the Crown in which the case against the accused would be fully set out and the evidence would be preshadowed. On two occasions this opening address had been prepared and roneo'd, but the applications by the Defence for quashing of the indictment had thrown it out of focus, and on this occasion it was not yet ready for presentation to the Court and the accused.

Mr.Justice Rumpffs But, Mr.Pirow, why on earth could you not have had it ready for yesterday?

Mr.Pirows The Crown could not anticipate the judgment of the Court. Although we believed in the rightness of our stand, it would have been a waste of time to have prepared the opening statement for yesterday.

Mr.Maisels then agreed, on behalf of the accused, that evidence of docu-ments could be led pending the opening address by the Crown on Monday, August 10, and the Court then adjourned until the following day.

THE CROWN'S OPENING ADDRESS

As the opening address, summarising the Crown case, is of such importance, it is added here in full.

The early stages of evidence lead by the Crown (on 5, 6 and 7 August, before Mr. Pirow's opening address on 10 Aug.) will be included in the next Summary.

Issued by the TREASON TRIALS DEFENCE FUND (W.0.2092) P.O.Box 2964, Johannesburg. Telephones 33-5901.

TREASON TRIALS DEFENCE MIND NO. 19

PRESS SUMMARY

This is the nineteenth issue of a regular bulletin,;; giving a factual resume of the proceedings of the Treason Trial,

Period Covered: October 15th - l6th 19th - 22nd

6ou6d6w66a

TEE EXPERT ON COMMUNISM

On October 15th Professor Andrew Murray began his evidence-in-chief, led by Advocate de Vos, the nev; leader of the prosecution team. Prof. Murray stated that he had been Professor of Philos&phy at the University of Cape Town since 1937* held the degrees of M.A. Stellenbosch, and doctorates of Literature and Philosophy of Oxford University. He had been responsible for work in political science and political philosophy since 1935; these studies included the study of Comnunism0 He maintained contact with over-seas associations, corresponded with them and ones in a while met and talked with them. He had also had talks with members of the Communist Party in South Africa when it was still in existence.

As Professor Murray answered the first question on the study of the phenomenon of Communism, Adv., I- Mais els, for the Dcfence, objected that the witness was reading from notes. These notes were withdraii/n, but at a later stage Adv. de Vos asked the witness to give evidence from "a note on the phenomenon of Comrrunism", submitting that the \d.tness had constructed the notes merely to refresh his memory of his views as the questions were ledr

After discussion between the Crown and all three judges, Mr., Justice Rumpff protested that the Crown had quoted no authority and that this was an entirely novel•procedure. Mr. Justice Bekker asked what recollections an expert would need to refresh: "If he's an expert, then he's an expert I" Adv. de Vos then withdrew the notes from the witness, and Prof. Murray con-tinued his evidence..

The Elements of Communism

Replying to a series of questions by 'the Crown, Prof. Murray described the elements of Communism as

(a) the philosophies of dialectical and historical materialism. (b) a social philosophy which had to do with Society (c) a theory of economics, involving criticism of certain systems

and proposing other systems.

The theory of Communism was not merely a scheme of thought, but was related to actual happenings, a system of organisation which demanded, that philosophy be translated into practices. The underlying doctrine was known as Mar:iism-Leninism and was based or the works of Marx and Excels followed in more modern times by those of Lenin and then Stalin and, later, by those of Mao Tse Tung. ProfD Murray then gave an explanation of dialectical <rsd historical materialism, referring to various philosophical works by Mars, Lenin and Stalin*

The Theory of Classes

Dealing with the Theory of Classes Professor Murray explained that according to Communist theory two main classes had emerged as a result of the development of the conditions of production, the proletariat class which had become dissociated from the tools of production and could only sell its evil labour power, and the capitalist class which had got hold of the instruments of production. The struggle between these classes constituted the "cjlans struggle" which would only cease at the stage of history when Comnrviism would

Page 2/„... be achieved

-2-be achieved and there would "be no provision for profit or individual owner-ship of instruments of production.

Theory and Practice

Theory and Practice were so closely united in Communism, as really to he identical; in order to achieve the desired changes, it was nece&sary that the proletariat should he informed and politically self-conscious., Communist theory held that at the present stage capitalism had come to the end of its historical development and was approaching the stage of final disruption where the revolutionary stage would take over. The moral objec-tions of Communism against capitalism lay in the production of a state with an oppressed class and an oppressor class; the capitalist system also produced, colonial and semi-colonial nations; the worker"was reduced to a commodity, and could not share in the value of his product hut could only sell his labour. According to the Communist theory the bourgeoisie or capitalist state must ultimately disappear and make way for the Communist state,

Imperialism marked the end of the capitalist period of history, it came into existence when capitalism became international and penetrated othe r parts of the world for production and exploitation. The world was divided into two main camps, the Communist bloc, presented as the peace loving bloc and the imperialist or war-mon^ering bloc which wanted to protect capitalism and must therefore promote war. Peace could only be achieved on the Communist system, i.e. when the profit motive for production had been abolished, for the competition of capitalism could only mean war. Stalin had made the point at the 19th Congress that for peace, imperialism must be destroyed.

Fact and Foundation

Adv. Maisels objected thft no foundation had been laid for this piece of evidence ; it could not be given unless the witness had himself been present at the 19th Congress of the Communist Party of the Soviet Union or could produce some other original information. The foundation must be laid initially, not subsequently. "No super-structure without sub-structureS" concluded Adv. Maisels. referring to Prof» Murray's own exposition of the Marxist theory of capitalist development.

Replying to the question.on "fascism" Prof. Murray said that Communists used the term to indicate the stage of capitalism where individua-lism and liberalism were destroyedp

(From time to time during the leading of Professor Murray's evidence the Court insisted that it must be put on the basis of communist theory, and not stated as fact.)

In the last stages of communism, the state would becfestroyed, but in the stage known as the Dictatorship of the Proletariat, following the resolution, the state power would still be necessary to destroy all elements of bourgeois society, after which it would itself wither away and the final stage of communism, the classless society, would be achieved, in which people would receive according to their needs, and not their labour. This dictatorship of the proletariat was based on revolution and would use tactics of force and militarism, and itfould be led by the Communist Party which would prescribe the policy to eliminate the botirgeois element in the state.

South Africa was commonly referred to as a semi-colonial state-

Ha;,' TO ESTABLISH A COHHJNIST STATE

Discussing technical procedures for the establishment of the Communist State, Prof. Murray stated that in Communist theory all means could be used, according to the situation in the country. "hen the revolutionary tide was in flow, tactics would be suited to. that situation, strikes and so forth which might lead to armed insurrection; there must "be action both inside and outside Parliament. Vhen the revolutionary tide was ebbing milder tactics and transition slogans would, be used. Communists vould be instructed to make

Page 3/.... use of

-3-use of the day to day problems of the people,trade unions , united fronts in which the Communist Party would co-operate with other bodies, such as national groups, women's and youth organisa-tions, religious, cultural and educational bodies; Communists v/ould • also be instructed with organisations not directly Communist, not publicly Communist , but which would act as transmission agents.

Prof* Murray then explained that the term "liberation move-men t"oc cured early in Communist theory as applied to movements of oppressed groups in colonial and semi-colonial countries, working for their own improvement and ultimate freedom. Communists were instructed to co-operate with such movements,which were of their nature anti-imperialist. The oppressed people in colonial countries were the counterpart of the proletariat in the industrialised countries.

•According to Communist theory, Liberation was regarded as international, because imperialism was international and Communists v/ould be expected to support liberation movements on an internation-al basis •

Replying to questions on the Communist Theory of Revolution, Prof. Murray stated that Communists taught that the capitalist state v/ould not disappear unless a revolution by force and vio-lence were created . Foreign. Policy

Dealing with the principles of Communist foriegn policy, Prof* Murray stated that Marxist-Leninist foreign policy was essentially a theory of internationalism. The proletariat was an international class and must support the proletariat in other areas and revolutionary activity and policy in other countries. National bounderies were no longer significant ; the world was divided into two camps . Communist theory taught that the Soviet Union,being the first communist country, must be the motherland of and give the lead for further developments in other countries.

-According to communist doctrine , the capitalist system , especially at the imperialist stage, must inevitably bring war. Peaoe would not be achieved when classes were destroyed , but this could not be until imperialism was destroyed. Anti-imperialist war was therefore justified. The Communist Party

Prof." Hurray stated that the Communist Party formed the adva-nce group in proletarian action, leading the industrial working people and the peasantry to the revolutionary stage, and making the masses and the small bourgeois classes or groups politically conscious. Theory and practise must go together, hand in hand , and practise must be based on well understood , well propagated theorjr. The Communist Party was organised on the basis of demo-cratic centralism, consisting of a hierarchy of bodies, elected with the power very much centralised at the top and the lower bodies under the orders of the higher bodies. Communist theory insists on iron discipline in the Party ; members must follow the party policy

Reverting to revolution^ Prof. Murray explained that there were three aspects to the one revolution, the first being the bourgeois democratic revolution when the capitalist elements would be destroyed , followed by or telescoping with the revolution leading to the, dictatorship of the proletariat, still a revolutio by force and controlled by force".' J-he third stage of the revolu-tion would be the withering away of the State.

Replying to a question on "Socialist" revolution, Prof. Murray explained that in Communist theory socialist revolution merely aimed at the nationalisation of banking and big finance and the expropiation of land; there were many theories of how the means of production should be controlled. The socialist revolution did not

go as far as the Communist revolution aimed to go,but Marx-ism-Leninism was inclined to use socialism very much indentically with communism in the first stages of the revolution

Pacrfi ]\/ A+ -f-Vi-?**

At this stage Adv. de V09 indicated to the Court that he had intended proceeding to the Communist Party of South Africa, "but the Court's attitude toviards evidence on national and international organisational forms of Communist demanded an initial basis of documents or sources, therefore he would leave that portion of Professor Murray s evidence until later0

Mr. Maisels: "My lord, may I make my position clear? The witness is not qualified as yet, on the evidence, to give evidence as to facts."

State and Revolution

Professor Murray then proceeded to the notion of a people's democracy as advanced "by Marxi3mr-Leninism. The people's cbmocracy was the type of political organisation which arises immediately after ths bourgeois revolution has taken place, followed by or telescoped with the dictatorship of the proletariat. When fully developed it would be the came as the dictator-ship of the proletariat, involving a form of government based on force to achieve the final dissolution of the capitalist elements,, The socialist revolution, na tional democratic revolution and bourgeois revolution all aimed at the same purpose and \*;ere really the names used for the first part of the condition under which the people's democracy would be established. The Communist Party must support this revolution to the fullest extent, and must co-operate at first with the bourgeois elements still present in the population, but the policy must be to gradually push out the bourgeois elements economically ana'1 socially until ultimately the Communist party dominates the government of the country and the dictatorship of the proletariat is established, Prof» Murray added, in reply to a question, that the theory of violent revolution was clearly incorporated in the theory of a people's democracy,,

In semi-colonial and colonial countries the first stage of the Communist Party should be to co-operate with the liberatory £vsr anient to bring about the bourgeois or national democratic revolution and thereby to break the back of capitalist domination and institutions. The immediate aims for Communism would be to smash fascism, which was identified with the capitalist element lii the State, secondly, to expropriate and redivide the land amongst the peasants, and thirdly, to break down finance monopoly and put the financial machine under the control of the peopuOo

Prof. Murray then defined the term Communist State aa referrfAgbboth to the beginning of the dictatorship of the proletariat and to its full-blooded working, and concluded this portion of his evidence by stating that the first loyalty of the Communist is to Communism; "The Communist must support the ultimate aim of Communism, which involves the violent revolution, before his loyalty to his countr and any existing institution0"

A Reading List

At the conclusion of Professor Murray's exposition of the theory of Communism, he proceeded to read extracts to the Court from numerous works in support of his evidence. Amongst these works were the Programme of the Communist International ar.d the Communist Manifesto. Fron Lenin's works, passages were read from State and Rovoluj^qru ^he Proletarian Revolution and the Renegade Kautsky? Left Wing Communism, an Infantile Disorder: Tasks of the Youth League and Imperialism. Amongst the works of Marx quoted were Das Capital. Extracts were read in from Engels on Dialectical aixi_ Histor.i ca 1 Materialism , from the History of the Communist Party of the s'oviet Union and also from the modern writer, Maurice Ccrnforoh»

Referring to the principle of democratic centralism, on which he read in a quotation from the History of the Communist Party, Prof. Murray stated that this term was used only by the Communist Party; he had never seen it used dleewhere.

Adv. Maisels, for the Defence, objected to the introduction of the Programme of the Third Communis t International,, "It is not a classic and the witness knows it.1 It is a programme of an organisation to which he does not belong."' Professor Murray explained that he regarded it as a classic;

Ppg© 5/o•e.it contained

-5-it contained a concise statement of t&o Marxist Leninist doctrine which was finally accepted in 1928 hy the Third Communist International; the Programme was accepted hy allpolitical science authors.

Opinion and Backing

During the second day of Professor Murray's evidence, the Defence objected to the reading of an extract from a speechoby Dimitrov contained in the Report of the Seventh tTorld Congress, asking whether the Crown was trying to prove that Dimitrov actually made that speech,

Mr. Justice Runpff; "K&t is obviously HOT the object of the evidence.1"

He agreed, however , with the contention by Adv. Nicholas that the witness must produce references from authoritative sources on which he relied in support of his opinion, Adv„ Nicholas then submitted that a speech made by an individual in 1935 was not a standard work, Mr, Justice Rumpff then insisted that all evidence must be put on a proper basis, and continued, addressing Adv. de Vos: "Ho\tf must the Court approach this? I asked questions, but I can't lead the evidence for you,"

Professor Murray then stated, in reply to a further question by Mr. Justice Rumpff, that the document WPS a genuine copy of the Report of the 7th Congress, he had known it for a long time, the whole policy of the Report was in tune with Communist policy, and he "could see no reason to regard it as a hoax." It wq.s accepted by political scientists who all made use of it.

Further passages were read in from works of reference which included the Comintern Programme and works by Lenin and Stalin. After listening to an extract from the Comintern Programme \fhich Professor Murray quoted in support of his statements on the 'Africa' policy of the Communist Party, Mr. Justice Rumpff complained that this reading was not directly concerned with the 'Africa' policy. If it was to be inferred, the Crown should have said so. Prof. Murray replied that the passage had been read because this analysis of the situation in relation to colonial and semi-colonial countries followed the Communist line and. included South Africa^

The Purpose of Evidence

On the resumption of the trial on Monday 19th October, at the beginning of the eleventh week, Adv. de Vos continued to lead Prof. Murray on the sources on which he relied for his evidence on the theory of Communism.

Continuing with the attitude in Communist theory to colonial and semi-colonial countries, including South Africa, Prof. Murray referred to the Resolutions of the Sixth World Congress of the Communist International, reading from a certified photostatic copy of a document in the Washington State Library. These resolutions formed part of the Comintern programme accepted in 1928, of which he had already read extracts. Prof, Murray referred to this document as one of the modern classics "referred to by scientific writers on both sides of the Iron Curtain", The book copy was called Theses and Resolutions and was quoted in a work by Bochensky and Niemeyer. Adv. de Vos then requested the witness to explain who Bochensky was,

Mr. Justice Rumpff: 1,1 hy?"

Adv. de V os: "The witness has referred to Bochensky."

Adv. Maisels: "Is not the Crown calling Bochensky as a witness?"

Mr. Justice Rumpff: "Are you asking me?"

Adv. Haisels: "The Tefence has been told so, and if it is so, then this is an improper way of introducing him,"

Mr. Justice Rumpff: "How is it improper? The Crown can ask why Bochensky is considered by Professor Murray as an authority."

Page 6/ -,,» Adv. de Vos

-6-Adv. de. Vcc- then stated that he would not press the matter any-

further and requested the witness to read from the photostat copy. The Defence asked to see the photostat copy and then enquired whether the Crown was tendering the document to prove that the resolutions had "been adopted, to which Adv. de Vos replied that the document was tendered to show how the witness arrived at his opinion that Communist Theory adopted a certain point of view in relation to colonial and semi-colonial countries.

Mr. Justice RumpfT: "Hot as proof that the theses and resolutions were in fact adopted?"

Advl de Vos; "No".

Adv. Maisels then informed the Court that the Defence had its own ideas as to the value of this evidence, and requested time for consideration, suggesting that similar documents should he left over in case of cross examination which might destroy the foundation of the evidence.

Prof. Murray then read a passage from a speech hy Molotov at the Twentieth Congress of the Communist Party of the Soviet Union, relating to imperialism and colonialism as a t jreat to peace and the struggle for socialis

Dealing with the "united front"' Prof. Murray read from the Report of the 7th Congress of the Comintern and then from the works of Stalin and Lenin.

Objections to "Iteesings"

Prof. MurrayT$l'dn jbtffifiod t®p»a pefcbjr:t®!: gfccsidh 6«nlfclo4>dvinta?,report Of - ±hffie.Spe6ol\jBe.aQdoEoi!blutiOBo.vatttEo-i th.-'Co'EgrSeB-.-of Ifc&oG^PfcgiB^ipublished i3ipEe&aiii!^s,andTh0i.^MaB0DrG9s^aMt9hSdtth®feagd0ai^fehv.^^ a fortnightly publication, emanating from Great Britain, which republished important statements by leading statesmen and reports of important political events. It was used by university and government departments and published under the guidance of experts. Prof, Murray was an adviser on South Africa and the Rhodesias.

Rising to object to the document, Adv. Nicholas, for the Defence, submitted that the position of a reported speech was quite different from the submission of acknowledged authoritative sources of communist theory. Keesirgi was the equivalent of a "digest" and could not prove a speech by Stalin. Mr. Justice Rumpff suggested that the \tfitness was not there to prove that Stalin made a speech but only to say that he as a political scientist had worked on data obtained from text books, political publications, etc.

What is the Legal Role of an^Expert?

Adv. Nicholas protested that that might be permissible in a univer-sity, but not in a Court of Lav/, The Defence submission was fundamental; the role of the expert was to give evidence on his opinion inferred from certain facts, but he could not refer to facts not proved in evidence or acceptable as common knowledge.

Mr. Justic&jRumpff; "What is the difference between this and Lenin's Selected Works?"

Adv. Nicholas: "That is accepted - by Prof. Murray, and we accept it,"

Adv. Nicholas then submitted that a report of a speech in Keesings could only be hearsay evidence, second, third, or fourth hand. The acceptance of Keesing as a scientific publication was entirely irrelevant in Court on matters of fact. Pact must "be proved^

Replying to questions, Prof. Murray stated that the speech of Stalin was taken from a Pravda report, and Mr. Justice Rumpff then admitted that if that were so, there might be substance in the Defence argument.

Ifege 7/.... In the

-7-In the legal argument which followed, Adv. de Vos submitted that

Prof. Murray had been called as a political scientist, and was entitled to indicate the basis for his conclusions. It would be for the Court to weigh up the reliability of that "basis.

Mr. Justice Bekker: "Are there' no limits to the sources for the expert? Supposing he relies on improper material, according to the rules of evidence?"

Adv. de Vos then quoted an authority to prove that hearsay evidence could be exceptionally admitted, submitting that this should apply in th? present case in view of the enormous scope of scientific data, and the necessity for the expert to accept facts known to him only from other authorities. To obtaia technical evidence would be impossible. "The true solution is to trust to the discretion of the trial judge."

Mr. Justice Bekker Objected that the a uthority quoted did not suit the present case. Experts had been allowed to quote on past facts, "beceuse if those facts had not "been correct they would have been challenged. But in the case of recent events, that was not so.

Adv. de Vos then questioned Prof. Murray further in order to establish fuiijrethe position of Eeesings, which took extracts from various sources such as the Times. Manchester Q.uardian. etc. He had "been under the impression that Stalin's speech had been taken from Pravda,

Mr. Justice Kennedy: "Would Praeda put any extra weight on the evidence?"

.Prof. Murray replied that Pravda, as the official organ of the Communist Party of the Soviet Union, would publish the speech in full, but admitted that he had not checked whether the portion of the speech which he wished to read emanated from the Soviet Union. Adv. de Vos then withdrew this document.

Extracts from Kruschev's Report to the 20th Cotgress of the Soviet Union and the Comintern Programme were read in support of Prof. Murray's evidence on the liberation movement and the acknowledgement of Russia as the "motherland". The conclusion of the Communist Manifesto was quoted in rela-tion to the concept of world revolution as known to communists, while various works of Stalin were quoted to support the statement by the witness that Marxist Leninism was a living and a contemporary doctrine, also that the practice of Communisih must be carried out in non-Communist countries.

Proceeding to the existence in Communist Thegry of "front" organi-sations, or transmissions, Prof. Murray stressed that these fronts were to be used by Commjnists without being professedly communist*

In reply to questions on the People's Democracy, Prof. Murray stated that this was a new name for the Soviet State, not a new type of state0 The People's Democracy was a post-war phenomenon, examples of which were Bulgaria, Hungary, Czec hoslovakia, Rumania, China, the German Democratic Republic, V iet Nam and North Korea.

Technical Defence Objections Upheld

Adv. Maisels objected first to the readiig of an extract from "An Introduction to Marxism" by Emil Burns as being an interpretation of events and therefore inadmissible, and then to a work by Seton Watson, "Pattern of Commdnist Revolution", on the basis that facts which had not been proved wer-being brought through this document. Adv. de Vos submitted that this passage wguldte read to support Prof. Murray's analytical interpretation of certain events, and not as proof of happenings, but Mr. Justice Rumpff upheld the defence objection on the basis that facts must be proved "before proceeding to an opinion, and the document was withdrawn.

The next authority on People's Democracy which the Crov/n sought to introduce was from a work by A.I. SoboTov, published in Moscow, but this wa^

Paf,e 8/..,. left over,

left over, following an indication of objection by the Defence. On the following day, Octo"be 20, Adv. de Vos_ referred to passages from speeches by Mao Tse Tung on the People's Democratic Dictatorship and The Correct Handling of Contradictions of the People.

Mr. K. - Unknoxm?

The Defence allowed these passages to pass unchallenged, merely indicating that objections would "be made during cross examination, "but further challenge arose over a quotation from a speech "by Kruschev, when Adv. Maisels protested "The Court has not "been told who this gentleman is and has no judicial knowledge of him*"

Mr» Justice Rumpff: "T he Court has judicial knowledge that there i_s a Mr« Kruschev who is a Soviet leader, "but the Court doers not know if this is the same Kruschev"a

Reverting to "fronts and transmissions", Proff. Murray referred to a passage already read in, and read a new passage relating to the duty of Commu-nists to resprt to illegal devices, subterfuges etc. to penetrate trade unions and to remain theren

Fact or Theory?

During the leading of evidence on the First and Second Communist Inter national^ the Third International or Comintern, and the Cominforn, leng-tfv legal arument arose on the admissibility of this portion of Prof. Murray's evidence, with particular reference to the Comintern and Cominform. Adv._ MaiseJLg. stated that the Defence did not object to statements concerning tho First and Second Internationals, x hich might possibly fall into the limbo of history, to be supported by reference to history books, but the witness coniu not give evidence of recent facts®

Advl de Vos replied that the Crown had not attempted to prove tho existence of the Cominform as a fact, but that the existence and the role of the Cominform was the accepted view of Communism, which was important„ With reference to evidence being given in the form of fact, he submitted that the expert did not as yet understand the legal niceties; he had a difficult tank and must be offered the opportunity to state correctly his position and viewpr'~

\

Defective Foundation

Mr, Justice Rumpff then gave the Court ruling that the evidence on tho organisation of the Communist Internationals had been given in a form from which it had been inferred that it was intended to be evidence of historical facts; dates of establishment and other facts had been mentioned. The Crown had admitted that it had not been intended to lead this evidence as fac+s -id had suggested that the evidence should be read as if it had been given in tarr-. of Communist doctrine, but if the Crown wanted the witness to give an opinion on Communist doctrine, so far as historical facts were accepts, the Crown luust lay a proper foundation. This foundation had not been laid and the Court ruled that all the evidence relating to the Communist Internationals and the Cominform was inadmissible.

The Crown proceeded next to deal with evidence in support of Prof„ Murray's statement on front or transmission organisations, taking first the World Federation of Trade Unions a.nd requesting the witness to reed from a speech by L. Sailland in 1953 on behalf of the W.F.T.U. Adv. ^elsh objected to any inference being sought from a document published in China, found in possession of a co-conspirator, and containing the report of a speechc Before the witness could be invited to draw any inference, the Crown must establish that the U.F.T.U. ?.<asa body and that the speech was made«

This iira.s followed by discussion on the necessity for the witness to testify to the existence of the V.rJP,U?9W.

Page 9/.• •. Mr. Justice RunpfT:_

1

Mr. Justice Rumpff: (to the Crown): "If the defence argument is correct, you must prove the existence of the W.F.T.U., or else the evidence may he inadmissible."

Adv. de V os submitted that the evidence to be given by Prof. Murray tjas based on the assumption of the existence of the W.F.T.U., the Crown was for practical purposes unable to adopt any other procedure.

Plenty of Time

Mr. Must ice Rumpff: "The difficulty is that we are not here for a week or Wo, nor have we been here for a week or two. As far as I can see, the end of the trial is not yet in sight. Why should we embark on this procedure of assuming something which the Crown may not be able to prove?"

Adv. Welsh submitted that unless the Crown undertook to lead direct arid admissible evidence, the document relating to the W.F.T.U. must be excluded, otherwise it would be merely a hearsay report of a speech made in China and found in the possession of a co-conspirator.

Adv.de Vos argued that at this stage the Crown had proved against the accused the existence of the W.F.T.U. and the acceptance by the accused of the organisation to mean what would be reflected by the evidence. The re was a mass of evidence showing the contact of the accused with the .F.T.U.

Mr. Justice Rumpff then asked what evidence would be led in support of the allegation that the W.F.T.U. was Communist sponsored and that the World Peace Council operated through the W.F.T.U.

Adv. de Vos replied that the Crown would lead the witness on a selection of documents and would ask his expert opinion. These documents would give the qualitative tag to the W.F.T.U. The Crown then listed eight documents, six of which were published by the W.F.T.U.

Imprint and Proof of Publication

Replying to a query by Mr. Justice Rumpff concerning the rules of evidence relating to a formal imprint, Adv. de Vos stated though without authority, that the document purported to issue from the W.F.T.U. and it could hardly be assumed that the document was counterfeit unless there were some indication of it.

Adv. Welsh then submitted that the statements on allthese documents relating to publication were clearly hearsay, since they were aLl statements by persons neither parties nor witnesses. T he only evidence which connected these documents with this cause vjas that Lt. Hugo had found them either in the possession of co-conspirators or accused or at the offices of the Congress of Democrats or of the S.A. Congress of Trade Unions, and this did not prove that they we re published by the W.F.T.U. etc. The Court ruled that the Cr own could not put these cbcuments to Prof. Murray.

The Crown then indicated that eortain documents would be put to Prof. Murray one by one. These documents had been found in the possession of the organisations or of the accused and indicated Communist influence. The documents had been studied by Prof. Murray who had made notes concerning the indications of Communist influence. Adv. Welsh submitted that the witness could not refer to his notes; this would not be a case of refreshing his memory on facts. He could only 'flag' certain portions of the documents for reference.

Mr. Justice Rumpff agreed that the witness could not refer to notes other than reference to pages. Adv. de_Vos then protested that he could not proceed because the notes were more than page references and it was finally agreed that Adv. de Vos should, take over the notes from the witness, but on the discovery that the Crown and the witness did not have identical copies of the first document led, the Court adjourned until the following morning.

ftige 10/.,.. The Crown

-10-The Crown "began "by endeavouring to lead evidence supporting Prof„

Murray's statement that Communist Parties outside the Soviet Union were expec ted to support the foreign policy of the U.S.S.R. Prof. Murray quoted tho example of Korea, "but Adv. ~relsh protested that a foundation would have to bn laid "before the witness could give any evidence on Korea. Russian foreign policy towards Korea was fact and must he properly proved. The witness was only a Professor of Philosophy at Cape Town, and not qualified to speak on Russian foreign policy.

* •

Adv. de Vos Replied that it was merely a question of opinion, whici the expert could give. The Court v-ould judge the evidence. Prof. Murray .then gave further exposition of Communist doctrine relating to the division of the world into two camps, the war- mongering and the peace-loving; peace cor.'.c only he achieved with the disappearance of the class struggle. When, in referring- to the opposition of Comraunisii; to military blocs, the i/itness referred to the S.E. Asia Treaty organisation, Adv. r'elsh objected that the witness was trying to get in a statement of facti

Faith and Fact

During the legal argument which followed, Adv. Welsh quoted authority to show that the expert cannot merely state his opinion; he must give the sources. Expert opinion F?UBt be capable of testing.

Mr. Justice Rumpff; "If you are correct, the witness must rely upon authoi. for every statement."

When Mr. Justicc Rumpff suggested draining upon Christianity as an analogy, Adv. Welsh declared it to be an apt analogy. "The witness must show that Communists have a belief in Korea similar to the belief of Chrintia'i--ity in the resurrection of Christ...."

Adv. S. Kentrid^o. for the Defence, continued the argument by submitting that the witness was not an expert on anything else in the Cou-.t except Communist doctrine. He has not given and could not give evidence on any particular body of people who believed in that doctrine; he could not that people who believed in this doctrine take certain views. That would jo fact, not doctrine.

Adv. de Vos stated in reply that Communism was more properly a phenomenon. To have the expert merely expound the basic dogma would be to present a fragmentary view of Communism.

Kts a and the U.S.S.R.

Mrn Justice Rumpff then requested the Crown to re-state the questi'.c which had. given rise to the argument: "In terms of Communist doctrine ir accepted as a fact that the U.S.S.R. assisted North Korea in the Korean \ She witness, Prof. Murray, was asked to leave the Court during tka diViBcu"?'* as to what answer was expected by the Crovm. Adv. de Vos then indicated th; c he wanted the reply that the U.S.S.R. had consistently supported North Korea in the struggle, but he wanted the reply not in fact, but as an accepted fact in Communist theory.

Mr. Justice Rumpff pointed out that the (basic difficulty was the manner in which the Crown questions were put, so that the witness was invited to state in t rms of Communist Doctrine that a fact had occurred. Adv.We3f' submitted that ..lthough the Crown had said that in Communism, theory and practice were linked, the witness could not tell the Court about the practicr of Communism,

The witness was then recalled and the question put again. Prof, Murray replied that to be true to theory, the U.S.S.R. had to support Korea,. There was a body of information to support this statement, taken from standard1 government reports from both sides and responsible news sources.

Pteige ll/ ... .Adv. Welsh

-11— Adv. Welsh drew the attention of the Court to the Summary of Facts,

one of the schedules to the indictment, which stated that the object of the World Peace Council was to promote the policies of the U.S.S.R. and also defined the policies of the U.S.S.R. re international matters. One of the facts, therefore, was that the U.S.S.R. had, certain policies, and it was clear both from the question of Adv. de Vos and Prof. Murray's replies that issues of pure fact relatii ?; to these policies were involved. The witness could not give this evidence. Adv. de Vos protested that there was no attempt by the Crown to get proof of fact in this matter. He submitted that the expert could tender opinion which would then be evaluated by the Court; the grounds on which the opinion was based would either add eo or subtract from the valus of the evidence.

Miv.. Justice Rumpff then dealt with the replies by the witness and stated that Prof. Murray had net produced grounds for saying that it was accepted in Communist Theory that the U.S.S.R. consistently supported North Korea, (other than his own conclusions from experience). The evidence. on this point was therefore_jiot_admissible.

The Commie Line - P.ead-End

The Crown then proceeded to the examination of Prof. Murray on certain documents, commencing with a statement on the Significance of wpr3d Youth Day. Prof. Murray informed the Court that his procedure had been'to study these documents in full; his remarks on the portions referred to would relate to the phenomenon and the theory of Communism. Dealing with this particular document, he commented that many phrases used reflected the Communist line, quoting inter alia "shackles of feudalistic "bondage","routing of imperialist bandits". Almost every phrase reflected communist writings.

Adv. Nicholas protested that this evidence WP.s inadmissible. The witness had equated the idea of peace in the world with Communist propaganda,. The fact that Columnists mr.de propaganda for peece had not been proved and could not "be proved by this witness. A similar example in this evidence was "the Communist theory that tho U.S.A. was a war mongering country,," The witness must quote authority to prove this.

•M?a. Justice Rumpff; "Mr. Nicholas, you are going much too farI"

Adv. Nicholas, however, insidbed that there could be no interpretation before a foundation had been laid and submitted that two other comments by the witness were inadmissible, that the document was "in line with current Commu-nist statements" and that there were "many phrases in the document which follow the Comsminist line." The Defence submitted that the witness must establish these Communist statements as proven facts and that current political atti-tudes leading to "the Communist line" must be established by admissible evidence.

After considerable legal ajgiment on this aspect, the Crown agreed to withdraw the comment on the Communist "line", but indicated that a foun-dation would, be laid for the statement relating to the U.S.A. as a war-monger-* ing nation,

j-jr_._ Jjustico Rumpff emphasised that the foundati n must be laid properly and warned the Crown not to go on when there was a danger that en objection would be raised and only then to offer to call further evidence,, Adv. d.e Vos strted that he would en&epvour to conform to the Court's ruling, but did. not accept the validity of the Defence argument. H e referred to the difficulty of the witness who had no time to formulate his answers infallibly and did not know all the details of admissible evidence. Mr*. Justic_e_Rumjjff assured the witness that he was not expected to give his answers "in the strait jacket of legal requirements,"

The Crown then asked Prof. Murray to recommence his opinion on this document. The Significance_ World Youth Day. Once again the witness selec-ted v rious phrases and evaluated them in terms of Communist doctrine, as explained in his evidence and. supported "by the sources from which he Lad quoted.

Page 12/.... On the

i

-12— On the following day, the sixth day of Prof. Murray's evidence,

the Cr0wn returned to the position of the U.S.A. as accepted in Communist doctrine as a war mongering power. Prof. Murray quoted from Kruschev's speech to the 20th Congress of the Communist Party of the Soviet Union, and from Stalin on T he Economic Problems of Socialism in the U.S.S.R. and from a speech by Molotov to support his statement'that the U.S. was regarded as a war mongering power. Prof, Murray then dealt with other points in this document, such as references to the murdering of youth by imperialists in Malaya and Kenya, and also the relentless struggle against reaction and fascism: _in our land, claiming that this reference to fascism and reaction was typical of Communist doctrine. When Prof. Murray concluded his comments on this docu-ment, Mr. Maisels. for the Defence, stated that by keeping quiet he had not \*aived his right to object; the Defence would submit later that what the witness had said was Communist doctrine was HOT so.

Red China and the African National Congress

The next document dealt with by Prof. Murray was the constitution of the People's Republic of China, from which extracts were read in from the P Preamble and also a number of the Articles. This was followed by the Consti-tution and Programme of the African National Congress, on which Prof, Murray commented, inter alia, that it part of Communist strategy and tactics to organise iironon's sections under control of a central body in order to promote the ideas of the central body, A similar comment was made on the establish-ment of the Youth league. The functions of the National and Provincial Executive Committees and afeo the recommendation for political education, were similarly compared to Communist strategy and tactics.

The witness then applied the same methods to various paragraphs in the Preamble to the Declaration on Basic Policy and Programme of the African National Congress, cuch as that referring to the national liberatory movement as an anti-imperialist movement, and another expressing "full confidence in ,the ultimate triumph of Africa", and identifying them with Communist doctrine. The sections of the Preamble on land., industry, and the cultural policy were dealt with in a similar manner. Resolutions taken at the A.N.C. Conference in 195*1- called for the end. of the emergency in Kenya, the release of Jomo Kenyatta and all other political prisoners and the withdrawal of military force; another condemned Atom and H, B ombs; a third called for co-operation with Trade Unions. These were all labelled by the witness as reflecting Communist strategy and tactics in one way or another, either from the phraseo-logy used or from the content of the resolution.

The rest of the day was taken up with comment by the witness on the Report of the ^2nd Conference of the African National Congress in 1954. Extracts were taken from the opening address of Dr, S,M. Naicker, President of the S.A. Indian Congress, referring to the approaching end of imperialism and the progress of the forces of peace a nd freedom, to the liberation movement as a movement against those who had formerly exploited Asia; to freedom and democracy as opposed to oppression. All of these references were interpreted by the witness as direct reflection of Communist doctrine. The use by Dr. Naicker of the words "fascism" and "reactionary" called for special comment.

Pur ther £y;umoirt

At the beginning of the afternoon session of the Court, Mr. Justice Rumpff referred to the two rulings given by the Court on the previous day on statements made by Prof. Murray, and stated that, after further consideration, the Court was of the opinion that the ruling imposed a duty on the witness which might not be reqiired by law, requested further argument for the beginning of the following week.

The Crown then returned to the A.N.C. Conference Report, and Prof. Murray subjected the Presidential Address of Chief A.J. Luthuli to the same treatment as that accorded to the opening address, making specific reference to the paragraphs dealing with the need for closer co-operation with the Trades Unions and the establishment of a united front "to challenge the forces of reaction." This phrase was classified as Communist and the content of these paragraphs compared to Communist policy.

Page 13/.... When Prof. Murray

i

When Prof. Murray was dealing in the same way with the Political Review contained, in the Report, AAV. Mais els protested once again that the witness'-vas making a statement of fact, The Crown defended the witness "by saying that he meant to say "in Communist theory", "but Mr, Maisels reiterated that the witness had made a statement cf fact, aid wanted to know if he would "be going on in this v ay* "We find it incredible,;'' F.eplyifcg to a question "by the Crown, the witness stated that his method in studying these documents was "to vjatch out for certain sentences a nd phraser" and then understand then in terms of the whole document; he could not work "anatomistically"Special attention was paid hy the witness to the section of tne Political Review dealing with the exiling and "banning cf leaders and the presence of arm-d police at meetings, as "being indicative of the Communist theory of that particular stage of capital development when dictatorial methods were ucel "by the ruling class to suppress opposition and entrench themselves. The discussion on fascism was similarly treated; and. also the section on Congress and the Rural areas and on the International Situation,

Issued "by THE TREASON TRIALS DIMflE I W D (V!o0o 2092) P.O. Box 2864, Johannes "burg 0 Phone: 33-5901

TREASON TRIALS DEFENCE FUND

PRESS SUMMARY No. 21

This is the twentfirst issue of a regular •bulletin giving a factual resume of the proceedings of the Treason Trial.

Period Covered: 2nd - 6th November, 1959

PT0FBSSQ2 MURRAY'S FINAL EVIDENCE-IN-CHIEF

When the trial resumed on November,2nd, Adv. de Vos explained that the remaining documents to "be put to Professor Murray for comment had been classi-fied into two parts: those which were covered "by the d octrine already expoun-ded "by Prof. Murray, and would therefore not need any further explanation; and those which required some further comment. In reply to Mr. Justice Rumpff, Prof. Murray made the general comments on the first group that he had come to the conclusion that they were derived from Communist doctrine and were an expression of that doctrine.

THE SEMANTICS OF FREEDOM

Dealing with the second group of documents. Adv. de Vos "began with a lecture on the International ™rade Union Movement, asking the witness whether, from this document, he would be a"ble to say anything as to the nature of the World federation of Unions on the "basis of Communist doctrine. Adv. Maisels objected to this question on the "basis that the witness would "be interpreting the document to the Court. Mr. Justice Rumpff stated that the Court's view was that unless Professor Murray wanted to set out some new doctrine, it was not desirable for him to rely upon doctrine previously expounded "which we can do ourselves."

The Freedom Charter

After commenting on a nur.bor of other documents, and assessing them variously as following the Communist line or as restating Communist doctrine, Prof. Murray wus questioned closely on the Freedom Charter. He pointed to the statement in the preamble, "our people have been robbed of their birthright to land, liberty and peace", as expressing a part of Communist doctrine (but to be found also in other doctrines), and to the criticism of the present form of government and the desire for a change as indicating Communism.

The Meaning of Democracy

Dealing with the "democratic changes" referred to in the pledge in the preamble to the Freedom Charter, Prof. Murray explained that the word "demo-cratic" could have two meanings, the one used in Communism and the other used by the 'Western Camp". There was nothing in the clause "The People Shall Govern" that cculd not be interpreted in either a liberalistic or a Communist way, "The People shall share in the Country's Wealth" could be interpreted in either a Socialist or a Communist way, according to the type of controls envisaged.

Liberalism, Socialism and Communism

Replying at this point to a request from Mr. Justice &unpff for his meaning of Socialist. Prof. Murray explained th" t he hrd meant left wing socialism, which was not Communism, although references to "socialism" occurred in Communist doctrine. Asked by Mr. Justice Humpff for the distinction between

Page 2/ "Left Wing

-2-Left Wing Socialism, Literalism, and Communism, the witness explained that liberalism was "based cn free trade and the equality of people, the removal of all "barriers and as little State control as possible. Socialist doctrine proposed different degrees of control of production "by the people, while the Communist doctrine held th-1 all production should "be owned and run "by the people, and that the function cf government w."s merely the administration of production and its distribution. The "left wing" in socialism stretched from the people who wanted a certain amount of control right to the extreme form, i.e. anarchism, or complete Communism. Left wing socialism contained all shades of control cf production. The clause "The land shall be shared amongst those who work it", could be related to the Communist policy of expropriation of land, which formed part of the Communist doctrine of the peoples' democracy.

Cops and Robbers

The clause "All shall be equal before the law" elicited the comment that liberalist doctrine did not teach that the Courts should be representative of all people, but that the function of the Courts was to represent and to maintain the law. This clause could be associated with Communist doctrines, particularly the section maintaining that the police force and the army ought to be the helpers of the people; a Communist interpretation could be put on this paragraph.

Of the clause "All shall enjoy Human Rights" Prof. Murray stated that there was nothing here which could not come into Communist policy. "There shall be work and security" contained nothing that could not be left wing socialism or Communism. The State was recognised as a force for the benefit of the people, and this section suggested partial State control of trade, etc., therefore could net be classified as libcralistic. The following clause "The Doors of Learning and Culture Shall be Opened" could be taken as expressing both liberal and Communist policy. Dealing withe the section "There Shall be Houses, Security and Comfort", Prof. Murray stated that the clause must be related to the implications of the rest of the Freedom Charter, from which it appeared that it ought to be interpreted as Communist doctrine. The last clause "There shall be Peace and Friendship" contained nothing that could act be either liberal or Communistic.

Mr« Justice Rumpff: "Consistent with bcth, inconsistent with neither?"

Commenting on the Freedom Charter as a whole, Prof. Murray declared that there were no points which chould not be interpreted according to Communism; there were many which could also be interpreted according to liberal doctrine, but also some which could not,

The People \Jh.0 Spoke

Adv. Maisels objected to the handing in of the next document which consisted of notes of speeches mode at the Congress cf the People (at which the Freedom Charter was adopted) on the ground that these were merely notes on which witnesses giving evidence refreshed their memory. Prof. Murray read and commented upon some of the passages-, and particular phrases and.words from speeches on the various cLauses of the Freedom Charter, evaluating them as either in line with Communist doctrine, part of Communist doctrine, or as using Communist language, e.g. the term "Comrades" was commonly used in Communist language. Adv, de Vos then indicated that, per.ding the Court ruling on the scope of the tecJxmony of the witness, the Crown was unable to take this section of its case any further.

A Flood of Communism?

Adv. van Niekerk then put to Prof. Murray some Jj-00 documents, upon which the Crown relied as showing possession by the accused or co-conspirators of documents which were Communist classics or contained Communist matter or propaganda, The Crown explained that the relevant portions of these documents, other than standard text boosk, would have to be read in to meet the question whether any part of a book could be directed cgainst the accused if it were not part of the record®

it 11 n it n 1111 it ti 1111 it h m 1111 it 11 nun it 111111 it ti 111111 Page 3/.... Cn the

- 3 -

On the following morning, agreement was reached between the Crown and the Defence that the remainder of these documents, as scheduled on a list compiled by the Crown, should be taken as-read. When these documents had all been put to Prof. Murray for his comments, the Defence informed the Court that these documents would take several days to consider. Soon after the Crown had embarked upon the next part of Prof. Murray's evidence, which related to various journals and publications, beginning with Liberation, it was suggested by Mr. Justice ^umpff that, since the passages to be read in were all covered by previous statements by Prof. Murray on dogma, these passages and articles could be read in at some other time; Adv. de Vos then agreed thrt these selections might be abbreviated.

"Front" Organisations

The Crown then proposed to put to the witness certrin material relating to "front organisations" for evaluation as to whether they contained Communist dogma.

Adv. de Vos asked the Court whether in the case of facts recognised by Communist doctrine, it would be necessary for the sources to be divulged. Mr. Justice Rumpff gave as the Court's opinion at thrt stage (pending judge-ment) that if the fact were accepted in Communist doctrine according to the classics, it might be put to the witness without the sources being first supplied.

Sobolev Left Out

Adv. de Vos informed the Court that he would be dealing with certain authorities on the People's Democracy, and commenced with a pamphlet by Sobolev^ to which objection hrd been taken earlier by the Defence, entitled "People s Democracy, a new form of political organisation of Society." Adv. Maisels objected to the evidence on the contents of the book and procep''-to cross examine the witness on the admissibility of the book. Replying to questions, Prof. Murray stated that he hrd obtained the book about three years from a police officer of the Security Branch, and not from any scientific source. He had discussed the book with two political scientists overseas and had also been told by Prof. Bcchensky, a Crown consultant, th-"t he knew the book; the witness regarded Sobolev as an atithority on the contemporary situ-a tion. Mr. Justice Rumpff stated the difficulty of the Court with regard to the work of Sobolev arising from the demarcation of authority. Prof. Murray admit tor1 thrt he h~d not seen this bock referred to in Communist literature, and could not say whether or not his opinion had been accepted as part of Communist doctrine.

Following the submission by Adv. de Vos that the witness was entitled to give his opinion supported by what he considered to be authoritative sources, A dv. Maisels protested that it was necessary to prevent all sorts of paper being put before the Court to support the witness' dogma: "Strictly speaking it could be said that the whole of Prof. Murray's evidence is inadmissible? He is really the librarion for your lordships 1"

Mr. Justice Rumpff: "In a criminal case with consequences - possible consequences - the Court may require a stricter test than an ordinary scientist." •I ii ii n ii ii it it mi mi ii ii ii n

When the Court resumed next morning, 4th N"ov. . Mr. Justice Rumpff gave the ruling that the reasons advanced by Prof. Murray for regarding this book as an authority were insufficient.

The Crown then read in passages from a book "People's Democratic Dictate-ship" by Mao T s e Tung as a further authority on People's Democracy, and also passages from various classical sources on the Third Communist Internationale Adv. Maisels objected to the introduction of the photostat copy of the Theses and Resolutions of the 1928 Congress and cross examined the witness on the

Page 4/.... authentic:

authenticity of the original of the photostat copy, establishing that it was a manuscript in English of what was assumed to he the Theses and Resdutions of the Congress. Replying to questions hy Mr. Justice Rumpff, the witness admitted that the contents of the document had not been reproduced by any authority, but Adv. de Vos submitted that to the extent that any document could be vouched for scientifically, this document had been so vouched for. The Court ruled that this document could not be admitted.

DEFENCE CROSS-EXAMINATION BEGINS Curricula Vitae

Adv. Mais els then began his cross examination of Prof. Murray, dealing first with his qualifications and his scientific studies of Marxism Leninism. Prof. Murray, who is Professor of Philosophy in the University of Cape Town, had originally studied at the Afrikaner University of Stellenbosch, and had gained his higher degrees at Oxford for work unconnected with Communism. He claimed that he had been engaged in systematic and intensive study of this subject long before he had been engaged by the Crown for this case. He had written "odd articles"' for the "Huisgenoot", a popular Afrikaans-language weekly. His writings had all been in this popular form except for one publi-shed leiturc "Konmunisme." He did not read Russian or any Eastern language, and had not visited Russia or any Communist country. He did not consider the Cape Town University Library adequately equipped with Marxist Leninist books. His ow$ library did not contain complete editions of the works of Marx, Engels or Lenin; he knew about Soviet scientific journals. He had read many classical texts on Communism and some modern texts, and kept up to date with his studies by reading Keesings and books by people on the western side -•Western journals are not always pro-westerni" He kept up with modern political trends in South Africa by newspapers, journals and by meeting people. He did not agree that all his sources of current information were completely second-hand; articles in Western journals could be more reliable than those emanating from Russia. His own writings consisted mainly of articles written for Die Huisgenoot and his book on the Parliamentary system "Die Begins els van Volkraad1'. published in 1938. He had contributed an article to "Economics" on the principles and theory of economics; his main interest was the study of pluralism.in politics, the racially pinral state.

Prof. Murray stated that he had also done some work for a correspondence college in the early '30s and had prepared some notes, purely scientific, on political theory for a summer school of the Nationalist Party during the war -it might even have been for the Jeugbond (the Nationalist Party's youth organi-sation). It was not political indoctrination, but a survey of his treatment of Parliament.

Fascism and the South African Government

Replying to a question on the term 'fascism1 as applied to the South African Government, Prof. Murray said that he personally was not at all affec-ted by what the government was called; the use of Communist jargon would not show that an author was Communist, but would show that he was acquainted with Communist jargon; the use of the term 'fascist' indicated that probably the author knew it was a Communist term, and that he might very well be a Communist. Prof. Murray agreed that it would be difficult for a layman to understand dialectical materialism without instruction; he had had no experience of translating these terms into Zulu or Sesuto; it might be difficult to explain these terms to uneducated people.

Following the question "would it be fair to say you are not a Communist?", Mr. Justice Rumpff asked whether the witness need, answer, and Mr. Justice Bekker quoted the law "The question shall not be asked, and if asked shall not be answered!11 Prof. Murray explained that he was a "one man party, chiefly centre," and. had been so for most of his life.

Questioned on such Acts as the Suppression of Communism Act, the Bantu Education Act, the Riotous Assemblies Act, and the Public Safety and Criminal Laws Amendment Act, Prof. Murray stated that he accepted the first as inevit-able with possible modifications, but the others as on the whole unnecessary.

Page 5/.... He considered

-5-He considered, apartheid, sound as a policy.

Fascism equals Communism?

Replying to questions on the use of the term fascism, Prof, Murray admitted after hearing hi.s own evidence iron the record, that he had said that the use of the term 'fascism' implied that a document fell in line with the Communist doctrine of fascism, and the Communist interpretation of the situation. He had not said anywhere that a man who -used the phrase was a Communist, although he might have indicated that such a person understood Communism. He did not accept that 'fascism' could "be correctly used in a wider sense than to indicate the form of government associated with Mussolini, "but the left wing adopted a wider interpretation. He had not used it so himself. Confronted with his article written for Die Huisgenoot in 19^1, Prof. Murray admitted that he had then adopted the 'left' way of interpreting the phrase 'fascism', hut would not agree to retract his statement a"bout the use of the term 'fascist' "by ordinary people. At the close of the day's proceedings, Prof, Murray stated that the general popular conception of a Communist was one who "believed and understood a certain number of the principles of Marxism Leninism and had to act accordingly.

2 n mi ii it mi it On the following morning, November 5th, Adv. Maisejls gave Prof. Murray

ten minutes to study the second instalment of his article for Die Huisgenoot. and then asked "When you referred to the existence of 'fascist forces in all "big industrial states' did you mean Mussolini's agents?" The witness replied that he had referred to the tendency to copy Mussolini and to control the Trade Unions. After further close questioning, Prof. Murray agreed that in that article, which represented his own views at that time, he had himself used the Communist interpretation of fascism, and had adopted the Communist analysis of the situation. "For the moment, I gave this analysis "but I criticized it later." He could not say when he had changed his mind about the Communist views he had expressed in the article: "Insight and. argument develop as one grows older," He accepted that many people in Western Europe who were not Communists had described South African policies as fascist, "I accuse no one of Communism, I merely analyse the mea„ning of the term fascism,"

Communist Jargon - Mot Quite, Not Yet

Adv. Maisels Questioned Prof, Murray on the use of the term fascist, as applied to South African policies, quoting from a speech in Parliament by Mr, J.S.N. Strauss, former leader of the United Party, giving what Prof. Murray described as "a Communist interpretation of fascism almost in Communist words." The witness replied that this analysis of fascism could be taken as a corollary of Communist doctrine, although not the Parliamentary motion itself. Referring to "The Guide to Communist Jargon" by Carew Hunt, Prof. Murray agreed that Hunt was a distinguished scholar, but said thpt he did not know that the word fascism was omitted from his guide. He admitted that Bertrand Russell, an anti-Communist, had used the term 'fascism' in the wider sense, in the same way that he himself had done in 1937 and 19^1, and in the same way that the accused had used it in many documents. Ariv. Maisds questioned Prof. Murray on the use of the word fascism by the well known non-Communist writer John G-unther, author of "Inside Africa" where he said in reply to a question as to whether South African legislation was fascist "Not quite; not yet.'" Prof. Murray replied that this author might not have relied on the Communist interpretation.

Adv. Mais els: "We hope to establish at the end of this cross examination that you are about the only person who uses the word in

this special fasion." The witness said that he would allow a student to use the word fascism only if he used it in this special sense. Adv. Maisels then read from.the opening paragraph of the section on fascism in the Encyclopaedia Britta.nica, pointing out that this note was diametrically opposed to what Prof. Murray had said.

The Nationalists and Fascism

Turning to South Africa, Adv. Mads els referred to various supporters of Page 6/ .... the Nazis,

- 6 -

the Nazis, includirg the Osseva Brandwag, which had been overtly fascist. Prof. Murray interjected "Overtly dictatorial!" He did not remember the description fasaist; He did not agree that the Nationalist Party had sympathised with Germany, stipulating that this had applied to leading members; he did not kiow if the Party had done so, but agreed tfeat it was a common thing that members might say and do things which might not be in line with the orga<-nisation. Replying to questions on "infiltration" of the Nationalist Party by the Ossev/a Brandwag, Prof. Murray differentiated between people who might find some other party more suitable and join it, but would not necessarily convert the new party to their way of thinking, and the Communist for whom Communist doctrine must be applied in practice. He agreed that there was a tendency for the left wing to call the right wing "fascist" and for the right wing to call the left wing "Communist." Confronted with a quotation from a speech by "Sailor" Malan, leader of the Torch Commando "The leopard has not changed its spots. They are fascist," Prof, Murray stated that there were two possible interpretations of the word, the Italian and the Communist; if that quotation had been put to him, he would have said that the author accepted Communist doctrine. He knew "Sailor" Malan to be the leader of the Torch Commando, an ex-servicemens1 organisation.

Smuts and Communism

Adv. Maisels then quoted from a speech by General Smuts in which he referred to the Broederbond as a "dangerous cunning political fascist organi~ sation" and then put it to the witness that he had said in evidence that the wider meaning of the term fascism was only used by extreme left wingers.

Prof. Hurray: "May bo.used by....

Adv. Maisels: "You said "only". Now you say "may"."

Prof. Murray: "Others may adopt a different interpretation. T he source is Communist."

Dealing with the term "Police State" on which Prof. Murray had given evidence, Adv. Maisels requrested him to point out even one reference to the police state as enshrined in Communist doctrine.

Trade Unions, and Politics.Comrade equals Communism

The cross examination was then directed towards Trades Unions and Prof, Murray's evidence that Communist doctrine taught that Trade Unions should take part in cultural and political activities of the people and not limit them-selves to purely wage problems and conditions of labour. Prof. Murray had referred to this approach in the Presidential Address by Chief Lutuli to the A.N.C. Conference, and had said it w as in line with Communist doctrine.

Adv. Maisels: "Have you ever taken up that attitude? "

Prof. Murray admitted that he had taken up that attitude during the attempt to establish a "Befor m Movement" in the Trade Unions, and had probably ex-pressed the same view in articles at the time of this agitation. Adv. Maisels pointed out that this was the same view as that expressed by Chief Lutuli and in many other documents. Further questions were addressed to Prof. Murray on British Trade Unions, in answer to which he referred to the support there for both the narrow and the wide view of Trade Union activities, but insisted that the idea of tra„de unions taking part in politics and political parties interesting themselves in trade unions emanated from Communist doctrine. Questions on the use of the word "comrade" in the trade union movement drew the reply that this usage aay occur overseas, but not in South African trade union circles. Referring to the use of this expression by the Chairman of the British labour Party at the 1959 Trades Union Congress in England, the witness suggested that Mr. Gaitskell might want to be popular; policy had to consider the left wing movement.

Adv. Maisels: "I am going to suggest that this reply is due to.tiredness on your part."

Page 7/.... Prof. Murray

Prof. Murray: "Ob the contrary, it is due to experience and knowledgel"

Questioned again on the "S.A. Heform Movement", Prof. Murray agreedthat the Nationalist Rarty, as it was entitled to do, had tried to draw the Mineworkers' Union into its ranks, "but stipulated that in Lutuli's speech the meaning would depend upon the context. It could be quite in order, but must be interpreted in the light of other remarks. In many parts of the world, it would be a result of Communist doctrine.

"I was not Asked"

Adv. Maisels: "And in many parts of the world also non-Communist doctrine?

Prof. Murray: "That is so."

Adv. Maisels: "Why did you not make that distinction in your evidence in chief?"

Prof. Murray: "I was not asked".

Adv. Maisels: "You are here to tell the Court what it ought to know, but you expected the Court to know that this WQ,S also in line with non-Communist doctrine?"

Prof. Murray: "I expected the Court to know that it might be in line with Communist doctrine and it might not beJ"

Questioned again on his article "Wat is liberalisme?" Prof. Murray agreed that he had said that the "second revolution" demanded an economic revolution.

Adv. Maisels: "This "Second Revolution" - you were not thinking of a violent revolution?"

Prof. Murray: "Not necessarily".

Adv. Maisels: "Not at all, surely?"

Prof. Murray agreed that the word "revolution" did not necessarily connote violence.

No Withdrawal of Stigmatisation

The following aorning, November 6th, Adv. Maisels asked the witness whether he now wished to withdraw the stigmatisation he had placed on the speech of Chief Lutuli, but the witness replied that his comments had been made on the speech as part of the whole Conference Report. Adv. Maisels suggested that Prof. Murray was taking this view only because he had been unable to find any trace of Communism in the document fcy iteelf.

Mr. Just ice Bekker: "Did you try to assess Lutuli's speech by itself?"

Prof. Murray replied that the words did not hang in the air; their meaning depended on the situation.

Adv. Maisels asked the witness whether where he had said "is" he actually meant "could be". Prof. Murray replied that there were sometimes alternatives.

Adv. Maisels: "When did you mention alternatives, except with reference to the Freedom Charter? Never!"

He then invited the witness to draw the attention of the Court to any word, phrase, sentence or paragraph of Chief Lutuli1s.speech which was in any way indicative of the political doctrines or beliefs allegedly to be found in the document or of the political belief of the author.

Page 8/.... The Court

-8-The Court adjourned for 20 minutes at this stage.

Fatal Phrases - "Wot Onet"

After the adjournment Prof. Murray pointed to expressions relating to the liberatory doctrine and active policy, the united freedom front, the theory of co-operation "between trade unions andplitical parties, and to comments on the world scene. Further comments which he could make were covered "by his previoxe evidence. Adv. Maisels reminded the witness that he was giving evidence on a capital charge, and asked again what he had found in the document. The witness repeated his previous statement. Adv. Maisels then asked Prof. Murray what indications there were of "characteristic and exclu-sive Communist doctrines - if any?" and replied himself to the question: "NOT ONE I" He added that with reference to Christian "beliefs, it was one of the plainest contra-indications t> Communism that one could ever hope to get,

Christianity No Counter Indication of Communism?

When Adv. Maisels suggested that an impartial reader would see a strong religious streak running through Chief Luthuli's speeches, Prof. Murray replied that he had not examined the speeches of Chief Luthuli in that connotation; he had examined them for signs of Communist influence or doctrine so as to report whether those elements were present or not. He had watched out for contra-indications "but had not included religion, "because he had not considered the references to Christianity so strong as to affect the significance of Communist phraseology. Asked if he had ever found any positive contr-indica-tions, Prof. Murray replied that if he had, they would have "been pointed out; they might have occurred in documents not "before the Court. Mr. Justice Rumpff asked the witness if he could remember any document which had contained a positive contra-indication of Communism or any in which Communism had been criticised, but the witness was unable to refer to any specific document. Replyirg to Adv. Maisels, the witness admitted that the policy of non-violence had been mentioned, but stated that it was a neutral phrase and not incompatible with Communism, since it might at some stage be regarded as an expedient measure. His evidence was to indicate Communist influence, but he would have noticed strong positive contra-indications, e.g. where violence and non violence occurred in one document, but he would have mode no reference in a case where only non violence was mentioned.

Reverting to religion as a contra-indication, the witness asserted that although religion had no place inpire doctrine, it was allowed at some stages on the passage towards Communism.

The Court then adjourned.

Issued by THE TREASON TRIALS DEFSNCE FUND (W.O. 2092) P.O. Box 2864, Johannesburg. Phone: 33-5901.

TREASON TRIAIS DEFENCE FUND

PRESS SUMMARY No* 22

This is the tv?entysecond issue of a regular "bulletin giving a factual resune of the proceedings of the Treason Trial,

Period Covered: 9th - 12th November, 1959

FAS9IStt IN ZSB8H8IO

Mr, I,A, Maisels, Q.C., resumed his cross examination of the Crown expert witness, Prof, Murray, at the beginning of the fifteenth week of the trial, Returnii^ to Prof. Murray's explanation of the "extended use" of the term fascism, Adv, Maisels quoted passages from eminent historians and statesmen, Inter alia Prof. Eric Walker, Adlai Stevenson and Winston Churchill; the witness agreed in most cases that the quotations contained the term in its extended sense, that these eminent persons were not likely to be influenced by Communist propaganda or to have accepted the Communist interpretation of a situation.

Mr. Justice Rumpff asked Adv. Maisels whether in the works quoted, he had come across any application of the term fascist to a p=rtia£Lar state, or to any existing state, e.g. any referencely Winston Churchill to Great Britain as a fascist state. A^v. Maisels ansvrered that he v/ould ha.ve to look up this particular reference.

He then askod the witness vjhether left-wing and non-left-wing writers in Great Britain and in South Africa referred to "fascist elements" in Britain. The witness agreed that this was so, Adv, Maisels continued with examples of the extended use of the term "fascist" by such persons as President Truman, the violent anti Communist writer Douglas ^eed, and also of its use in standard history books in use in South Africa. When a quotation from Prof. Mclver, "one of the most eminent living sociologists", had been put to the witness, he replied that this use of the term "fascist" could have a Communist interpretation. Occasionally the witness asked to see the texts quoted before expressing an opinion on the use of the term fascist. Adv. Maisels continued putting quotations to the witness, suggesting at one stage that on this question of the use of the term fascism "You're the- only man in the regiment in stepl"

Mussolini - et alii?

At one point, Mr. Justice Rumpff suggested that the cross examination should return to the narrow issue. The witness had said that the term fascism applied to the system of government in Mussolini's Italy, and had then explained that Communism applied it to a type of bourgeois capitalist state at a certain stage of development. He had then admitted that the term fascism is used in an extended sense and may be used so by non Communists (i^ttingly or unwittingly) if they apply it to a bourgeois capitalist state, using it in its Communist interpretation. The difference between Nazism and fascism which the Defence was bringing in was not really the point at all. The point was that people may use the term fascism, using the Communist origin and giving it the meaning arising from the Communist origin.

Adv. Maisels "The point is whether or not it shovred Communist influence. The witness claimed the use of the term as a "Communist characteristic,"

Adv. Maisels then asked Prof, Murray: "You meant that what was Communist usage is now unwittingly often used by non Communists?"

Unconscious Sin?

Mir. Justice Humpff then asked Prof. Murray whether he admitted that the term fascism had acquired an extended meaning. The witness replied that it was used occasionally as a term of abuse, or as a swear word, but he was not convinced that the usages quoted could not be ascribed to Communist interpretation; the extended use of the ward implied the particular interpretation vfoich had developed from the Marxist Leninist doctrine. Right wing writers could adopt this inter-

Eage 2/....tation

pretation, knowingly or unknowingly; this could only he decided "by eanmining the whole chapter. He agreed that the right wing writer might use the term with the obvious intention to use it in its Communist sense, but not necessa-rily with the object of propagating Communism, but insisted that in order to ascertain the sense, it was necessary to look at the scope of the book. Assuming the general use of the word by popular writers, such as John Gunther, he \irould say that if it wepe applied to Spain, he would say that it was asso-ciated with the original meaning of fascism; if it were applied to any other country he would say that the user had either consciously or unconsciously adopted the Communist interpretation or had picked up the phrase; he then qualified the express "picked up the phrase" by stating that it did involve a certain attitude,

A Dirty Word?

Ady. Maisels then referred to the largd number of writers, political, learned and popular, whom he had quoted, all of whom appeared to use "fascist" in the extended sense.

Profy Murray admitted that the word could have two extended senses; it could be used in the Communist extended sense or as a term of abuse.

Adv. Maisels: "In many of the documents (of the accused) before the Court, it is clearly used as a term of abuse?"

.Prof. Murray: "In some cases,"

The witness agreed that in the works quoted by the Defence the term fascist had been applied to Germany, Spain, France, Britain, U.S.A., POjand, Austria, .Rumania, Hungary, Bulgaria, Japan, Belgium and others.

Adv. Maisels: 11 Surely you agree now that the extended usage may not be in any way indicative of Communist belief or adherence

to or advocacy of Communist doctrine?"

The witness agreed, but added that the term might bue used in the Communist interpretation.

The Crime of tho People

Prof. Murray then produced aithorities on the Communist attitude to religion ifhich had been requested by Mr. Justice Belcher at an earlier stage of tho cross examination, and read from Lenin and Stalin to show that there was no such condition as that members of the Communist Party must be atheists; on the contrary, they could hold religious views® An attitude towards religion was not proscribed, even priests could be members of the Party provided they were not reactionary.

Perverting the Young?

Adv. Maisels began his cross examination of Prof,Murray on youth organi-sations with the United Party and the Nationa-list Party youth movements, sugges-ting that the relationship of these youth organisations to the parent organi-sation could, on Prof, Murray's evidence, also be said to be "in line with Communist method and tactics." Prof. Murray replied that, as both the Nationalist Party and the United Party differed from the Communist Ra-rty, it was reasonable to assume a difference in the jouth movements, which would be more of an integral part of a Communist parent organisation. He dismissed tho opinion of G wendolen Carter in 'Politics of Inequality', quoted by Adv. Maisels, as that of a "hostile critic", and taken too often from newspaper sources. Adv. Maisels put a few questions to the witness on youth and organisations and then.asked "Can we now forget about the African National Congress Youth League end the Transvaal Indian Congress Youth League indicating Communist influence?" Prof. Murray conceded that the references he had quoted were usually found'idn a context iirith possible Communist influence - but might not be so foundj

Page 3/.... Urifced We Stand

-3-United We Stand

Turning to the reference to the United Front, contained in Chief Luthuli's speech, which Prof, Murray had claimed as an indication of Communist theory, Adv, Maisels quoted the passage again; the witness replied that the indication of Communist influence was not only there, hut in other parts of the document. Adv. feisels asked the witness to say what in the whole document induced him to bdieve that the reference to the United Front contained in Luthuli's speech had any possible Communist interpretation. Prof. Murray replied that the President of all Association did not speak in isolation, and that this speech must be considered together with the address by Q?. Naicker and also the Secretarial Report, The Court then adjourned for 20 minutes to give the witness an opportunity to study the documents.

After the adjournment Prof. Murray stated that the phrase "united democratic front could be shown to have associations with the Communist line; there were Communist items in other parts of the document with which luthuli's use of the phrase could be associated; there might be a stronger connection between this suggestion of a multi racial democratic front and Communist jssociations, than with non Communist theories.

Prof. Murray admitted that the A.N.C. represented people with no voice in the government of South Africa, that the Coloured people at least had no vote in the Transvaal, that the Congress of Democrats was a body of sympathetic vhite people, and that on his own evidence a united front could be an alliance between Communists and non Communists, but interjected that it would be for the purpose of breaking tho Government so that thg Communists could get power. Adv. Maisels then indicated several forms of a united front, which had at different times been adopted by both Communists and non Communists, illustrating the latter with the alliance of the Nationalist and Afrikaner Parties and the electoral alliance between the United and Labour Parties, and also the three cornered alliance in 1952 between the Torch Commando, the United Party and the labour Party, referred to as a werful democratic united front in "The Friend", issue of 1?04.52,

After Prof. Murray had admitted that he knew of the non-Communist use of the term -united front in South Africa, but differentiated between this term, and united democratic front, Adv, Maisels put it to him that the term, whether of Communist origin or not, whether used by Communists or not, was used every day.

Adv. Maisels opened the following morning with the term police state, recalling the request for Prof, Murray to produce evidence of any use of this term in Communist classics as indicated in his evidence in chief. The witness replied that the concept had not occurred as that phrase in the earlier classics, but there were references to a similar type of state, the stage at which the state became what was now called a police state.

Class Struggle

The cross examination hen turned on the phrase "class struggle" and the view that the working class was exploited by capital. Prof. Murray agreed that this view was held by a number of people and that he himself had held it at one time, admitting under pressure that he had consistently expressed it in his writings, even up to the period covered by the indictment.

Adv. Mais&lo continued by quoting passages from the various articles written by Prof, Murray, and from his book, Die Volksraad. referring, inter alia.to united trade union action, to the relationship of capitalism, imperialism and war, the history of the class struggle, Mr. Maisels suggested that if these passages had been found in documents of the accused they would have been labelled by Prof, Murray as "in line with Communist teaching," Prof. Murray admitted that such things might have been said and had been said by non Communists, but added that he wouldsuspect a Communist analysis.

Clarification from tho Bench

Mr. Justice Rumpff, addressing himself to Prof, Murray, referred to his evidence in chief on the doctrine of Communism and certain exhibits which had the appearance of being in line with Communist doctrine. Ho had the difficulty

Page U-!,, ., that he

J W that he had not imderstood the v/itness to say in the majority of cases that the word o* concept represented Communism exclusively, "but that it was either in line with typical Communism, used in Communist literature, or an analysis a3 seen through Communist eyes or in terms of Communist doctrine, e.g. fascism, trades unions, the class struggle. "Is your evidence that in any particular document any of these Communist analyses of the situation may ivave "been taken over "by a political movement or philosophy which is not Communist, e.g. a "bourgeois socialist? You do not say that the author j.s Communist "but that it contains matter consistent with Communism? Do you purport to say "broadly that all are exclusively part of Communist doctrine or that they show a Communist a nalysis, "but one that may "be applied "by people not adhering to Communism?"

Prof, Murray replied "Tha$ is the position!" The ideas in the documents were predominantly Communist, and fell in line, "but others might use them too. He conceded that many of the Communist analyses had "been adopted "by "bourgeois socialism, although often in a modified form,

Mr. Justice Rumpff: "That was the way you intended to give your evidence? The terms used might or might not represent Communism

or might represent the extreme form of socialism? You did not intend to call any man a Communist or label any document Communist?" The v/itness agreed and then stated, in answer to another question, that the fundamental difference in theory "between Communism and the extreme form of "bourgeois aoeialism lay in the ultimate theory of capitalism. It <?entred round the attitude of the revolution, which was regarded as inevitable by Communism, whilst bourgeois socialism accepted.the principle of reformism.

Adv. Maisels indicated that the questions put by Mr. Justice Rumpff were questions that were to be put later "by the Defence unless the witness would concede at least that these phrases were in no way indicative of Communism.

Prof. Murray: "I accuse no one of Communism",

Adv. Maisels: "Ho , not one, except where you said "straight from the shoulder" Communism, We are concerned with a number of

people who have been on a capital charge for a long time. We are not here to play around with highly skilled professional meanings, but with the meaning of fhe ordinary man in the stroet. Was your task to smell-.out Communism?"

Mr. Justice Bekker: "What was your mandate?"

Prof. Murray: '/To report on the documents, to read them in full and to indicate where I thought there was Communist association,

or attitudes of mind," Adv. Maisels;. "You mean it was no more than that? To be found in

Communist literature?"

Prof, Murray: "Characteristically, but not exclusively Communist,"

Alternative, Sources:'- Used by Communists and Non-Communists

Mr. Justice Rumpff commented that matter characteristically but not exclusively Communist, might also be characteristic of bourgeois socialism, Adv, Maisels pointed out that when commenting on the Freedom Charter, the witness had gone out of his way to suggest an alternative source, but had done this on only one other occasion in the whole record,

Adv, Maisels: "I want to show the Court that substantially the phrases you've pointed to arc the small change cf political

discussion in South Africa, and in the we stern world, Communist or non Communist]"

Mr. Justice Rumpff asked the witness whether, when he used the phrase "accepts a Communist interpretation of the situation" he meont/that the author had knowingly applied the Communist analysis or that it coincided or was consistent with the Communist analysis. The witness replied that it could be either, depen-ding upon the document,

?age 5/.... Adv. Maisels

-5-Adv. Maisels pointed out that the witnessin his evidence in chief had not

mrde it clear that a view was not exclusively Communist, hut could "be held Iy others. Why should the witness have assumed it to he common knowledge that the term fascism v/as used elsewhere?

Prof. Murray replied that he had thought that everyone concerned with this sort of thing knew that fascist1 had two meanings. He had thought that people of experience would know that it could he used also by non Communists,

Exceeding with the cross examination, Adv. Maisels referred to Prof. Murray s view of Ifarxism as expressed in his article written in 1935; the witness agreed that he was not a Communist in 1937 and that he had said that no one could understand contemporary world events unless he had read Marx, He conceded that there was a lot of Marxism in that article.

.THE FACTS OP SOUTH AFRICAN LIFE

Adv. Maisels then referred to the statement in the Crown's opening address that the accused were inspired by Communist fanaticism, Bantu Nationalism and racial hatred and indicated that he would, by the presentation of objective facts, look for a simpler interpretation, the right of the human being to be treated as one.

Aav. Maisels then put Prof, Murray various statutes relating to different-iation and deprivation of rights based on race and colour, beginning with the franchise position and the fact that the overwhelming majority of the population had no direct representation either in Ihrliament, on local bodies, or on statutory bodies. Prof. Murray stressed "consultative" facilities but even-tually conceded the lack of direct representation and admitted that separate and unequal amenities for different races could create bitterness "if badly a pplied", that the elementary right of Africans to bargain through tracLo unions had been removed, and that even on wage boards, which affected the very stomachs of African wcoekers, they had no representation. The very right of the individual to live was denied to non Europeans by statutes and regulations governing skilled employment in urban areas, in teades and even in professions. Property rights were denied to Africans through the Land Act and the Natives Urban Areas Act and to Indians through various statutes. Forced labour, child labour, farm prisons, imprisonment for failure to pay rent, conditions of labour, deportation without trial, pass and permit raids, influx control and forced movement of non white populations, and other harsh realities of the life of the non white were put to Prof. Murray, with the suggestion that echoes of all these were to be found in the Freedom Charter.

Asked whether it would be correct to say that the feeling against the pass laws was very violent, Prof, Murray conceded that this was so "in some areas. In other areas there is sympathetic administration." He admitted that between 1936 and 1956 the position had become worse. When Adv. Maisels referred to statistics relating to the unequal distribution of the national income between whites and non whites, Mr. Justice Rumpff asked what was the object of putting these statistics to the witness. "Where will it stop?"

Adv. Maisels: "Where did the Crown ease stop?"

Mr., Justice Rumpff:"Assuming a reasonable man would expect dissatisfaction on the part of the non-whites, where does it get you in so far as the charge is concerned?"

. Adv. Maisels: "V ery far, because the Crown has allied that the accused were inspired in varying degrees by Communist fanaticism,

etc., whereas the real inspiration of the accused was the miserable conditions. Political speeches must be seen in the context of the situation. If a worker in England says he is "oppressed", it may be due to Communist influence, but in South Africa you don't have to look for foreign influences."

Page 6/.,.. Mr. Justice Rumpff

-6-Mr, Justice Rumpff commented that he had not understood that the Crown

case w.s that the accused protested without justification. M y , Maisels pointed out that the Grown had stressed the violent language of criticism of the government. Continuing the exposition of discriminatory legislation Adv. Maisels paid particular attention to the Bantu Education Act, the Group Areas Act and the Western Areas Removal Scheme, involving the total loss of freehold rights, and the onerous and hrrsh location regulations.

The White Man's law: On the following morning Adv. Maisels put to Prof. Murray that the laws made by the white man (in Nationalist and preceding governments) vrere such that they controlled for the African, Indian and Coloured, where the? should live, where they might work, what work they might do, what wages they should earn, to what schools they should go and what kind of education they should receive, and where and how they should travel.

Prof. Murray objected that these were bald statements which did not give a balanced picture, and pointed to the discretionary powers given to the autho-rities. Asked whether he would agree that the African might very well regard this government as reactionary, fascist (in the extended sense) Nazi and undemocratic, Prof. Murray agreed that it could be so, depending upon the interpretation of the situation. Ady. Maisels put to the witness that the African might, with regard to the restriction of his liberty and the interference with his privacy, well say that he lived in a police state, and that in fact all the epithets stamped Communist could in the eyes of an embittered non-Communist be considered applicable, and also by unembittered objective white perstoi,. .Prof. Murray replied that it would depend upon the meaning given to the words used.

Adv. Maisels said that he wanted to show that Prof. Murray's basis we.s fundamentally wrong, and put it to him that if a Charter of Rights were to be drawn up, it could not be expected to reflect the future without the present grievances, to be linked with campaigns such as those against Bantu Education, the pass laws and the Western Areas Removal. It would be expected that any opposition party \tfOuld link grievances with opposition to the government.

Adv. Maisels referred to the acknowledged tendency in South Africa for the use of strong language in political debate, referring to the judgement, in the. Star libel ca.se, which evaluated intemperate language as the small change,of political discussion "But this is a treason case and not a libel c^eel" Prof.. Murray agreed that struggle denoted intense political effort, as in Indiag. and not physical combat, that the jolitical use of military metaphors such as fight, enemy, forces of nationalism or liberation etc, was a commonplace, that sacrifice was not connected with bloodshed, and that politicians were prone to say to their followers "Our cause is bound to triumph."

Imperialism Equals Communism?

Adv. Maisels then put a number of quotations and references to imperialism to the witness: "I want to destroy this myth of an attack on imperialism, capitalism and war being Communist." Prof. Murray conceded that the Communist line on the effects of economic imperia.lism was a common line,

Tlhen Mr. Justice Rumpff protested that the witness had said time and time again that non Communists say such things, Adv. Maisels pointed out that the witness had not said this in his evidonce-in-chief.

Mr. Justice Rumpff stated that the issue between the Defence and the Crown on the concept of imperialism was that Inhere in a document a situation was analysed and called imperialism, the analysis was to be considered as more than consistent with Communist doctrine. Ariv. Maisels replied that the i/itness had gone further and hrd said with regard to the concept of imperialism that the writer had accepted Communist doctrine by using this phrase. It could not be allowed to stand. If he had said consistent with Communism and six or ten other "isms" it would be a different situation.

Pa&e Page ?/••••• If the witness

If the witness would say that what he had called the Communist doctrine of imperialism was not a Communist doctrine at allhut more likely to "be non Communist thru Communist....? Mr. Justice Bekker put the question to Prof, Murray who replied that he was not prepared to make that statement. Adv. Maisels asked the witnass whether he w ould agree that it would he quite unsafe and unscientific to "base any inference of Communism on the criticism of imperia-lism in these documents, reminding him of the same type of criticism made hy many safe non Communist sources. Prof. Murray replied that it might he so, "but it did not mean that certain criticisms of imperialism might not he associated with Communism. He conceded that such criticism could he used hy liberals (who also read communist hoiks) hut it vrould still he a Communist analysis,

Mr. Justice Rumpff: "It has the stigma of being part of Communist doctrine but could also be a part of liberal or leftist doctrine?"

Prof, Murray replied that the test would te whether Communist principles were involved. No exclusive conclusion could be drawn. Mr. Justice Bekker put cgrin to the witness Adv. Maisel's question, but the witness replied that it would depend upon the criticism of imperialism; he did not look at single points, but always took other points into consideration.

Prof. Murray "Completely Biassed"

Adv. Maisels indicated, in reply to a further question from the Bench, thr.t the purpose of the cross ox-mi nation was firstly to show that the witness was not qualified to give evidence by virtue of his ignorance of significant factors, and secondly that his opinions given in his evidence in chief might deceive the Court: "If you'd only said in your evidence in chief that it was Communist theory, but not only Communist theory, but you studiously refrained from this,"

Prof. Murray denied this and Adv. Maisels exclaimed that he could go on for days but would put only four more examples to the witness, Returning to Chief Luthuli's speech, Adv. Maisels pointed out that far from dealing with the whole document, Prof. Murray had prefaced his remakrs "This paragraph speaks...." "Your answers, Prof, Murray, have been lees than candid, (and that's putting it euphemistically!) and show that you are completely biassed in your approach to this case."

ftfter a few final questions on imperialism, Adv. Maisels turned to the concept of democracy and handed in to the Court a copy of the Declaration of Human Rights adopted by the United Nations as a statement of ideas accepted by non Communists as democratic ideals, accepted by all Western nations, but not by South Africa or the U.S.S.R, Adv. Maisels teew the attention of the iidtness to the close resemblance between the freedom Charter and the Declaration of Human Rights, pointing out that there were only three matters in the Froedom Charter that had not close parallels in the Declaration, the nationalisation of industry, the re-distribution of land, and the clause relating to peace and friendship between nations, the latter, however, was in fact implied in the Declaration as a fundamental starting point. In some countries the Declaration of Human Rights coincided with the constitution; its ideals were common to every nation. The witness agreed upon the close similarity of phraseology between the Declaration of Human Rights and the Freedom Charter, and admitted that the nationalisation of industry was not necessarily Communist.

Nationalisation and Human Rights

On November 12th, the eighth day of the cross examination of Prof, Murray, Adv, Maisels continued to examine the witness on the nationalisation of industry, pointing out the many different schools of thought in this matter and. also on iho redistribution of land. The witness admitted that in non Communist thought the provisions of the Freedom Charter might be considered as a democraticrstep.

Ifege 8/,... In reply

- 8 -

In reply to the question whether a state based on the Freedom Charter would he more democratic than the present state of South Africa, Prof. Murray stated that this would depend upon the interpretation of present conditions. He considered.that the United Nations Declaration of Human Rights could not he applied with a special type of population; democracy would not work under such conditions. This iiras not only the Nationalist view hut was held "by others. He doubted if either the Freedom Charter of the Declaration would work out practically. Even taking the right to the universal vote as the final form of perfect democracy, a racially plural state, even without the full vote, might he more democratic than e.g. EnglanL or France; he agreed, however, that this view was open to dispute, and that different views from his need not he Communists, Prof. Murray denied emphatically that it was reasonable for some non Communists to believe that the majority of voters in South Africa could not remove the minority givernment from office; the view that there was a tendency in South Africa for the government deliberately to entrench itself could not be defended, but he agreed that the criticism of the United Party's lukewarm opposition was not a specifically Communist view, but was held by the Liberal Party, the Labour Party and also by a section of the United Party,

Dealing with extra Parliamentary activity, Adv. Maisels suggested that there were many non-violent forms of pressure outside Parliament, and referred to mass processions, strikes, and economic pressure, all legitimate extra Parliamentary rctivities. Prof. Murray agreed that full political rights would have to be given to the blacks in South Africa, and that it would be a bold man who would say whether or not it would happen in our lifetime or that it could rot happen entirely by peaceful means.

Passive Resistance to Provoke Violence?

Adv. Maisels then turned to the cross examination of the witness on passive resistance, which he suggested might consist of non co-operation, actual breaches of law or passive acts, such as fasting and days of prayer, but in all cases implied the renunciation of the use of force as an instrument of change. Prof. Murray suggested that there was a difference between non violence and passive resistance. He agreed, however, that the independence of India and Ghana could be said to be partially a victory for non violent resistance taken in the wide sense, although he maintained that the passive resister might, suffer violence in order to create a violent situation, even if he were not actively violent himself. On the question of the attitude of Communism to non violence, Adv. M aisels referred to Prof, Murray's quotation from the Comintern that Ghandhism is more and more becoming an idoology directed against revolution and must be strongly combated by Communists,

Prof. Murray argued that despite this, Communist theory also made a place for passive resistance which might lead to other things. He cgreed with the suggestion by Adv, Maisels that passive resistance could have a profound effect on public opinion, and could make the task of governing more difficult, resulting in a change of policy, but maintained that not paying taxes would be a positiv e action rather than passive resistance, although not violent, ftrof, Murray also agreed that many people other than the accused and their organisations, had thought in terms of extra Parliamentary action, but excluded the Torch Commando and the Black Sash on the grounds that their demonstrations were permitted constitutionally; such demonstrations were only extra Parliamentary because they did not happen in Parliament; he agreed tha t 'extra Parliamentary' had therefore two meanings, ljgal and illegal; neither was essentially violent but might lead to violence.

In reply to a question by Mr. Justice Bekker. A/rv. Maisels described Parliamentary pressure as the franchise, while extra Parliamentary pressure was pressure by the unenfrahchised. The Defence was tryirg to clarify the meaning of extra Parliamentary activity as used in the indictment. Prof, Murray agreed with reservations that Parliamentary a-ctivity could run the whol e gacat from the letter in the newspaper to the person who lay down on a railway line. Cross examined by Adv, Maisels on the distinction between constitutional and unconstitutional, Prof, Murray classified as constitutional the Torch Commando, the Ossewa Brandisag (until it started performing certain actions),

Page 9/.... UNESSA,

-9-and the Black Saah, hut stated that he knew very little of the Broedsrbord., Disfranchising of all English speaking persons through a majority in Parliament, would he against the spirit of the constitution, "but not unconstitutional. It was a basic concept that an unlawful act could never be constitutional, but he agreed that an unconstitutional act was not necessarily unlawful, and that there was not a direct relationship between unconstitutional activities and the use of force and violence. Adv. Ifcisels suggested that 'extra Parliamentary activity' was a modern word relating to political change, and asked the vritness whether there was no middle course between the gaining of a Parliamentary majority on election day and the.starting of a violent revolution; he suggested that ordinarily there was a middle course. The witness agreed that there could la fact be a middle course.

The Freedom Charter - The Crown "Out of Step"

Adv. Maisels then cross examined the witness in detail on the Freemen Charter, stating that it was part of the Crovm case that drafting and adopting the Freedom Charter wr.s an overt act of High Treason laid against seventeen of the accused and that it was part of a plot to overthrow the State by violence. The Crown argued that the use of violence was derived from the desire to see the establishment of a state in line with the demands of the Freedom Charter, He proposed to read statements from various sorrces and to ask the witness for his comments in order to show that the aims in the Freedom Charter had commended themselves throughout history to people othdr than Communists,

After a number of statements had been put to the witness on the Preamble and the first.sections of the Freedom Charter, Mr. Justice Runoff asked whether it were necessary to quote any more seeing that the witness did not dispute this point. Adv. Maisels replied that his object was to persuade the Coucc that the Crovm allegation of Communist fanaticism, Ba„ntu nationalism and racial hatred was without foundation, and more particularly the suggestion that the Freedom Charter was part and parcel of a Communist plot for revolution, The diversi-fication of the reference was vital to the Defence argument, to show tart far from the accused being out of step, it was the Crown that was out of etep with the world. The Defence was not allowed to wait until the argument stage; chose references had to be placed before the Court. Asked whether he really expected any expert to disagree with the references quoted, Adv. Mai a:.:* replied "I don't but I have had a lot of surprising answers in my cross examination.!"

Issued by the TREASON TRIALS DEFENCE FUND (W.O, 2092) P.O. Box 2864, Johannesburg, Phone: 33-5901

Collection: 1956 Treason Trial Collection number: AD1812

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