BHUNGA AVENUE
What struck me first was the atmosphere of a small old country town: as you take the off-ramp from the N1 and follow its curve into Bhunga Ave, the first building of substance that you encounter is
When I was a young attorney – probably still in articles – I got roped into a lot of pro bono work, which in this country generally means that your clients were black (probably still are) – and the biggest problem of blacks under apartheid was not criminal charges in any form which you would understand that, but rather charges under the apartheid laws.
You must understand that apartheid was an administrative system, created in a handful of enabling acts of parliament and libraries full of administrative regulations and therefore a very broad category of crimes and misdemeanours were not really dealt with in full-blown criminal courts but rather as administrative hearings before tribunals which did not really have the status of courts – and in terms of our law the implication was that you could not really appeal these decisions themselves, as would be the case in a criminal trial – you would have to argue for an administrative “review” of the ruling of the original tribunal – by another tribunal – and the second tribunal was known to re-submit the original issue back to the original tribunal for re-consideration.
History of Langa ; Langa Commissioner's Court ;
Long before the big push for the abolition of apartheid there was a small Cape Organisation, founded by white women, called the Black Sash – so called because they regularly protested outside the gates of parliament, wearing black sashes as an old Victorian symbol of mourning. These women were fearless, virtually all English speakers, and frequently associated with the Anglican or Catholic churches . Only in the darkest days of apartheid did the state dare to lay a hand on them, and they were a thorn in its side all along that rocky road.
So part of this administrative law was a thing which most foreigners have heard of called “The Pass System” . The Pass Laws Act of 1952 required black South Africans over the age of sixteen to carry a pass book, colloquially known as a dompass (“dom” = Afrikaans for “stupid”), everywhere and at all times. Each year, over 250 000 blacks were arrested for offenses under this law.
Black people always referred to it in Zulu and Xhosa as the “Dompass”, a combination of the Afrikaans word “dom” (“stupid”) and the English word “pass”. They lived under a curfew and vast numbers of them were forced out of “white areas” into poor rural areas designated as Bantustans (“Bantu” = B’untu (Xhosa) = “The (black) People”).
Example of the photo page of a “dompas”
So where did I fit in as a young lawyer?
At the height of the Apartheid era, and although the system was ultimately doomed to fail, in the interim it ran like a well-oiled machine. Black people had massive contempt for the system but the penalties for non-compliance were severe. Huge numbers of blacks were picked up in white areas for not having pass books, and the police were the sharp edge of the system because they were the enforcers.
I still haven’t got to where I fitted in.
Pass offenders who survived the rough treatment in the back of police vans were imprisoned in separate jails right inside the black areas (they’re black, right?) (note, not “black people”, just “blacks”) and they were tried in separate administrative tribunals which were really kangaroo courts, and no-one was legally represented. They were mostly dirt poor, illiterate country peasants who fled their Bantustans because they and their families were starving and they risked arrest and imprisonment and abuse at the hands of whites who abused and took advantage of them by paying them a pittance as servants, garden “boys” (“come here, boy – pick up that paper”) and the like. Their jailers advised them to plead guilty, and they dutifully did so. The courts were conducted in Afrikaans. They didn’t understand Afrikaans, so they didn’t even know what they were saying:
“Beskuldigde, wat pleit jy?”
- “Skuldig”
(“Accused, what do you plead?”
- “Guilty”)
Then they would be sentenced to a small fine for contempt of court - for not saying “Skuldig, Edelagbare” (“Guilty, Your Honour”)
The main sentence was an order that they were to be escorted into a railway coach by the police and shipped back to their “Homeland”. It was a high-speed revolving door because they were often back in Cape Town before that train got back, to have another shot at a respectable life. Or death by criminal gang. Or another train ride home.
Now finally, this is where I come in.
The Black Sash recruited young lawyers to defend these people, pro-bono. The organisation had a long association with social consciousness lawyers and it was but a small step to flex their muscles a bit further. They went around to the senior partners of the larger firms, which always had spare clerks sitting around doing fuck-all besides working off their hormones with each other in a store-room, and they explained to them that it would help them to cut their teeth on the criminal law.
It was time to bring down Apartheid, once and for all, and we figured that unlike what the blacks themselves were doing with petrol bombs, burning tyres and stolen guns (and which was seriously starting to look like a civil war), we could do it legally and bloodlessly by way of the simple logistics of the system: these kangaroo courts could only get through their daily workload by tricking everyone into pleading guilty. Unlike the bloodshed and mayhem which the blacks were causing, and which necessarily and by definition was done in secret and therefore couldn’t really attract an effective amount of practical support (although it did get lots of world attention, a lot of which was not helpful to their cause) courts and the area outside court buildings are pretty public spaces and news reporters could easily and legally get in there. If the government could only process their cases with guilty pleas, we could slow the whole machine down significantly by turning each matter into a full-blown trial, no matter how bullshit the defence was.
We knew that the judicial officers who presided over these hearings were low-IQ morons who could barely tie their shoelaces.
So the Black Sash ladies would go to the prosecutors before court time in the mornings and get the court roll for the day, on some pretext or other. At first the prosecutors refused to give them copies - so that complaint went all the way up the command chain and down came an instruction to let them have copies. Then they would distribute copies to us and we would each select a group of names. Then we would go to the holding cells with our lists, call out the names, and “consult” with our “clients”. You actually had to do this because otherwise the prosecutor was likely to tell you that the accused was missing. Consulting was simple:
“Listen, you guys, you don’t do what the white baas tells you to do: when he says, “beskuldigde, wat pleit jy?” you must say “Onskuldig, Edelagbare” (“Not guilty, Your Honour”) – and then shut up: don’t say anything else. Got it?” (You must understand that all this is done through a translator, who doubles as a bodyguard – there’s no bloody way any of us would go in there without that)
Then you wait for their names to be called. In court it’s not as hot as the holding cell, but it’s still pretty hot. You’re in your Young Lawyer suit. Everyone is sweating magnificently. Through the window you can see a pretty ugly scene, and it gets worse as the day wears on. It’s the same every day. There’s a huge, silent, angry crowd of black faces. Behind them you can see the menacing shapes of the police Casspirs (What, did you think the police would go into Langa in good old police vans? Are you mad? – see here) . There’s an awful lot of silence out there. One by one these sad souls would slouch into court. They never took their eyes off the floor. Previously, this stage in the proceedings they were just one step away from the train. But now, things changed.
With the first “Not Guilty” plea the judicial officer (I just can’t bring myself to call him a Magistrate) looked as if his eyes were going to pop out. Then he sat back in his chair, very, very slowly, as if he feared that the backrest may have fallen off. He didn’t explode until he was sure it was there. He had a limited understanding of the implications because he thought – he had every right to think – that this was just an isolated incident of one cheeky Kaffir. I don’t think anyone was sure of the Court Rules for a full blown trial so it got a bit rough and eventually it became a circus but in the end the prosecutor got his “guilty” verdict (there was no way this judicial officer was going to forego the pleasure of that) and the poor old accused shuffled out and into the back of a prison truck, which, when full, would cart him off to the railway station. But we had won anyway, because we had turned a 30-second trial into a 30-minute trial. The long game had begun.
And then the next accused also pleaded “Not Guilty”. Now His Honour had his chin a mere three centimetres off the surface of his desk. I imagine he was saying something like, “This can’t be happening” to his old friend, the Devil. But the Devil was silent, and seemed to be prepared to await developments. But both the prosecutor and the defence attorney were emboldened by recent events, and it became more like an orderly tennis match.
I don’t think I mentioned that the prosecutor was a black man by the name of John, but you need to know this. I suppose being black saved the government the salary of a translator. But it was opening the door to a fifth column. I once had a conversation with john during a break in the proceedings. I was trying to rattle him a bit. I said, “John, don’t you fear going home from here at night? – After all, these are your own brothers you’re sending away.”
“I’m alright,” he said, lighting a cheap cigarette, “I got a nice job, nice pay, family’s happy. No-one’s gonna touch me”
“Well, I don’t know” I said “but I’d be worried, man. These are your people. One night someone could …”
“Don’t you worry about me. In our culture, you get a warning if someone means you harm. But if you get that warning, you better make a plan … but I never got any warning” He laughed, but it didn’t sound like an easy laugh.
Now, something was changing. The court was battling on heroically, but we could all see that we would not be going home for hours. The judicial officer looked desperate, but John was doing the maths. If he played it right, he could be a hero in his home town. Suddenly, we weren’t angry enemies. We were colleagues. The penny had dropped.
The day wore on grimly. The public inside the courtroom could clearly see that something had changed, but they weren't sure what it was. It couldn't have looked that good however, because the resulting sentences hadn't changed – it was just taking longer, which may have been mistakenly interpreted to mean that the lawyers were struggling:
The accused were still being convicted, just at an agonisingly slow pace now. There was just … this … resistance. Argument. What were the lawyers doing? Possibly, to them it may have looked as if we were taking a beating from the prosecutor and the “magistrate”. This is the story that was getting through to the throng outside, and everyone out there seemed to be getting more tense. The feeling seemed to be that any change in the customary rhythm of the proceedings was bad news. Police who had been resting inside their bullet-proof vehicles were now getting out warily, clutching down-pointed rifles, eyeing the restless crowd and pacing cautiously up and down in front of them. The words, “The thin blue line” flashed through my mind a few times. My thoughts started drifting out of the courtroom.
“I beg your pardon, Your Honour? Oh. Court starting at 8 a.m. tomorrow? Yes, Your Honour. As it may please the Court.”
It was 3 p.m. Why the hell was he adjourning the court at 3 p.m.?
There was a gap in my consciousness. I couldn't explain the time lag to myself. Something had happened and I had missed it. How much time had passed? Had I blacked out on my feet? I heard a loud roaring sound. First I thought it was in my head. Then I looked out of the window in disbelief. Everything was moving. People were running. Vehicles were weaving recklessly between the people, on the road, off the road, everywhere. Something had definitely happened and I had missed it. But what?
I think the anger had finally boiled over, but the transition from that terrible silence, that static anger, to action, was so sudden that if you had been looking through the window, and looked away, and then looked back out of the window - that’s when it must have happened - just like that! The crowd had surged over and around the police, the police themselves were on a hair-trigger, and they were pointing their weapons straight at the crowd, whether they had an order to fire or not I would never know, it would practically be self-defense anyway, and no-one knew whether the police guns were loaded with rubber bullets or live ammunition, but that crowd couldn’t have cared anyway, such was the white-hot anger that drove them. Enough! Konele!
Our brilliant new tactic had backfired disastrously - for now, at least.
The courtroom was on Bhunga Avenue, right at the entrance to Langa, about two hundred metres from the off-and on-ramps to the freeway - no doubt so that the police and the government officials could have safe and easy access and - more importantly - they could beat a safe retreat if they had to. My little grey Volkswagen Beetle had been parked right outside the courtroom window, where I could keep an eye on it from my courtroom bench. It would be tricky in that rioting crowd, and I had to keep a sharp eye out for all those who had already started their engines and were wheeling their cars around to get the hell out while they could, and I had to do the same. Another thought came to me like a drumbeat through the cacophony. I had a client, Riaan Malan, a renowned South African author who had written a book called “My Traitor’s Heart”, probably the most authentic account of those times, in which he had a passage about an incident in Natal, in which a crowd had descended upon a lone police van with two occupants and the crowd actually tore the vehicle apart with their bare hands and slaughtered the cops. It was a true story. A mob can exhibit strength and insane anger which is greater than that of a rampaging elephant. I cleared the epicentre of the crowd and got onto Bhunga Avenue (I had been riding on the road shoulder up to that point). Then I realised that none of the other cars were ahead of me. In my confusion I had turned left instead of right, and I was heading deeper into Langa.
I did a wild U-turn and almost immediately heard a loud bang on the passenger door. There were dogs and donkeys and children blundering around in the road and my heart stood still. Then I saw the soccer ball rolling away from my car and three young boys standing on a street-corner, laughing at me. They were obviously quite oblivious to the riot going on down the road. There was no way that was an accidental shot, but it was just mischief, and anyway we all knew that no white guy was actually going to stop and get out of his car and yell at them right there. I smiled a shit-eating smile at them, resumed breathing and headed back towards the mayhem further down the road - I didn’t know any other way out of Langa so I would have to go through the riot outside the court again to get out of the township, thanks to my brilliant wrong turn. I was totally strung out. How many men would it take to tip over a Volkswagen Beetle? - Two? Three? Three, at most, I guess. Jesus.
But to my astonishment when I got to the seething crowd I got the impression that some of them recognised me, and spread out their arms to push others back so as to clear a path for me, and I crawled through, responding to a few smiles as I went. Apparently I was OK. It was a very strange moment indeed.
Then I got the hell out of there and went home.
We had started a new chapter in the bitter history of the pass laws, and it would be the last chapter.
I don’t know who tipped the media off about what was going on in Langa but the next morning when we got to court, there were press reporters (it wasn’t usual to have TV media at events in those days), photographers, a contingent from the Black Sash and other human rights observers and although I had no idea what the police might have anticipated for that morning, one thing was pretty certain: whatever happened would be scrutinised and reported on all over the world. There was no way that the police or the court officials or the magistrate were going to get away with anything remotely dodgy.
What I didn’t know was that the same thing was going on at all the other black commissioner’s courts all over south africa: it was such a simple formula: the government, for good reason, wanted to create the illusion that these were real criminal courts. That meant that the courts had to be conducted under and in terms of the Criminal Procedure Act, which was, essentially, a very good and fair piece of legislation. It gave any accused person the right to present his defense and it required the prosecution to present its case fairly and coherently and the magistrate had to conduct himself in an impartial and intelligent manner and his judgement had to be sound and to withstand scrutiny.
But the way these courts had been run up to now was only a pale reflection of a proper judicial hearing. The accused had been bullied, intimidated, fooled and manipulated into performing in a way that enabled a cruel and repressive system to perpetuate itself without much interference. Now, someone had jerked their chain and there would never be mere lip service to the concept of justice in those courts again. The courts were run on an assumption that each “accused” could be disposed of in a matter of two or three minutes. The court was just a sausage machine operating between the holding cells and the transport back to the homelands.
As an additional insult, the courts were run and administered in Afrikaans by officials who were mostly Afrikaans-speaking. The issue of the use and teaching of Afrikaans amongst black South Africans had been hotly debated for a long time: the 1976 riots were sparked by the very hot issue of teaching Afrikaans in black schools. To blacks, it was the language of the oppressor, and they wanted nothing to do with it. So out of sheer perversity, the government intended to ram it down their throats. To this day, if you ask a black person if he or she speaks Afrikaans they will say no: yet they do understand it. They just won’t speak it.
All over the country, as a coordinated effort, attorneys acting for pass offenders had begun using the same tactic. Every case was dragged out for as long as possible, which was about 30 minutes, considering the lack of preparation, evidence, etc, so the time allotted for a trial was stretched ten-fold. Courts usually ran from 9 a.m. to 4 p.m., with an hour’s break for lunch. The first obvious thing to do was to limit lunch to 30 minutes; then to bring the court time forward to 8 a.m.; then to take the court finishing time back, first to 5 p.m., then to 6 p.m., then to 7 p.m., and eventually to 8 p.m.
But it was to no avail. Then the Blacks Administration Board got permission to use the courtrooms inside the prison buildings (I was not aware of this, but all large prisons have courtrooms, fitted out exactly like the Civil Magistrates’ Courts, where they hear trials for crimes committed by existing prisoners inside the jails). Using the prison courtrooms had an extra advantage in that prisoners did not have to be shipped all the way from Pollsmoor (far down the Cape Peninsula) to places like Langa every morning and evening
But then they ran out of prosecutors, so they had to fly young state prosecutors down from Johannesburg to take up the slack.
And herein lay another problem for the government: the state gave quite liberal university study bursaries to young law students, in terms of a contract which obliged them to work for the state (mostly as prosecutors) on the basis that a one-year study bursary equated to one year of state service. A large number of law students took advantage of these bursaries, which virtually guaranteed them a job as a state prosecutor after they graduated. So the young prosecutors who were being shipped down to prosecute pass-law cases were our own age, they came from the same sort of university background that we did, they espoused the same ideals and value system that we did, and when we met them to run these trials inside the prisons, there was a great atmosphere of collegiality which the surly, burned-out, miserable government officials could neither understand nor do anything about. Suddenly, every trial became a debating contest, a battle of wits that went back and forth across the courtroom, right over the heads of the stupid, bewildered, under-qualified “magistrates”, who only knew that somewhere, their plans had gone horribly wrong. Trials lengthened from a half an hour to an hour, to half a day, and the number of awaiting-trial prisoners ballooned to impossible proportions. There weren’t enough holding cells anywhere, and the number of black men being sent back to their “homelands” shrank to a trickle.
And then the prosecutions stopped. I don’t know the precise date, but a directive must have been issued somewhere, either by the officials of the Blacks Administration Act or the Director of Public Prosecutions. And suddenly, it was over. I don’t think there was an official announcement at all. The system had fallen apart. It was actually a dead letter on the statute book long before Nelson Mandela came to power.
When the law fails, there are times when religious organisations, the fourth estate and public consensus can do things that the law cannot do.
The despised system was only abolished on 13 November 1986. Efforts to control urban blacks had proven hopeless and the government repealed the pass laws on 23 July 1986. From the 1800s to the date of abolition, between 15 and 20 million people had been arrested for violating these laws.
The apartheid government, under PW Botha, declared a partial State of Emergency on 20 July 1985, possibly in anticipation of the coming abolition of those laws.
