The Covenant (182 page)

At the end of his two months he was able to recommend a Belgian engineer with wide experience in Katanga Province over in Zaire: “He’s a knowing man. Works well with black nations. And he’s better informed on your problems than I am.” When President M’Bele implored Philip to stay on till the Belgian was properly indoctrinated, he saw the sense of this and agreed to extend his stay, but only for three weeks.

When these passed, and he was confident that the Belgian was qualified, he sought permission to fly back to Johannesburg, but when the plane landed he was prevented from going directly to his job at Venloo by three BOSS officers. “You must come with us,” they said, and he was whisked off to a small room at the airport.

“This in no way endangers you, Mr. Saltwood. We know why you were called to Vwarda and how competently you did your job there. We must interrogate you about an important trial and would prefer that no one talk with you.”

“Whose trial?”

“Daniel Nxumalo. High treason.”

The Terrorism Act of 1967, based on careful preliminary work supervised by Detleef van Doorn the year he died, was both wonderfully
vague and terrifyingly specific. It was vague because it forbade any act or attempted act which in any way embarrassed the state. Almost any behavior which protested apartheid could be so construed, and the bases of proof were also extremely vague. What was specific? The minimum penalty the court could impose: five years, most likely on Robben Island. The maximum: death.

Twelve kinds of behavior fell under the ban, and of these the government conceded that nine did not apply in Nxumalo’s case. He had not interfered with the police; he intimidated no one; he did not cripple production; he did not lead any insurrection; he did not advocate cooperation with any foreign government; he had caused no bodily injury; nor had he brought financial loss to the state, or endangered its essential services, or obstructed its land, sea or air traffic. On those counts he was patently innocent and the indictment ignored them.

But on three other counts most threatening to the security of the state he was presumably guilty: first, he had agitated blacks by asking disturbing questions, so was accused of promoting disorder; second, by reminding blacks of past grievances, he had encouraged hostility between races; third, in various ways he had embarrassed the government. And for these offenses he must be tried, and if found guilty, sent to prison or hanged.

Philip learned that the trial would be conducted in Pretoria by a crusty old judge, Herman Broodryk, who had a record of handling such cases covering more than two decades. Prior to his appointment to the bench in 1958, he had been a brilliant advocate who gained favorable attention in the 1940s by defending Afrikaner radicals charged with attempting to sabotage Jan Christian Smuts’ efforts to take the country into the war on the side of England. He was a personal friend of all the recent prime ministers, and Philip thought it disturbing that a man with such credentials should sit in this case; but an Amalgamated Mines lawyer told him, “The South African higher judiciary is above reproach. We can be proud of two liberties—judges like Broodryk and our free press.”

And then Philip made an even more startling discovery: “Is it true that Justice Broodryk will hear the case alone … without a jury?” And again his lawyer friend defended the system: “One of the best things we’ve done, abolish the jury system. What chance would Nxumalo have against a jury of twelve white men and women? I leave to your imagination what would happen in the circuit court at Venloo,
for instance, if a black appeared on a charge of molesting a white farmer’s daughter. With an all-white jury!”

Daniel Nxumalo was to be defended by Mr. Simon Kaplan, a Johannesburg advocate well experienced in fighting the battles of blacks who had offended the mores of apartheid. The accusations of terroristic activity would be presented by Mr. Martin Scheepers, a specialist in the Terrorism Act; nineteen times he had prosecuted such cases, winning fourteen and sending a total of eighty-seven men and women to prison. In three recent cases involving armed insurgency, he had won the death sentence.

In England, in America and in most Western nations a judge could spend a lifetime on the bench without ever sentencing a man to death; year after year in South Africa some eighty people went to the gallows, more than in the rest of the Western world put together. When Saltwood asked about this, the Amalgamated lawyer said, “Most of them are black. Murderers, rapists. We are forced to do this to maintain order. There’s four million of us, twenty million of them.”

The courtroom was packed when Judge Broodryk took his seat. He was a large man, with heavy, bushy eyebrows, pendulous cheeks and a fearsome manner, but as the trial proceeded Philip would find him patient, attentive and considerate. When a judge had no jury to contend with, he had to be judicial, uncovering facts and judging character, for on him alone would rest the decision of innocence or guilt, death or life. In his years of mining experience Philip had attended trials in several African countries, and in none had he found a wiser judge.

Broodryk extended every courtesy to Nxumalo, listening with obvious attention whenever he spoke. In his opening address Advocate Scheepers spread before the court the essentials of his case against Daniel:

Thus was set the tone for the clash between Nxumalo and Scheepers, a bitter division between two able men that flared on the first morning of the trial when Nxumalo began his careful campaign to place the grievances of his people on the record:

DEFENDANT NXUMALO:
Only in recent years have our people begun to discover themselves, to seek an identity different from the one the white man says we must wear. We are in the position the Afrikaner was before he crawled out from under English domination, and we respect his struggle for his
volksidentiteit
. But from this reasoning I conclude that if the Afrikaner is free to celebrate his victory over Dingane at Blood River, we blacks ought to be free to recall the powerful events that shook Soweto in June 1976.

STATE ADVOCATE SCHEEPERS:
What events did you have in mind?

NXUMALO:
The deaths of our children who protested apartheid.

SCHEEPERS:
Mr. Nxumalo, those schoolchildren rioted in the streets, burned down buildings, killed innocent civilians, and challenged just authority. You see that as equivalent to a battle fought between two armies?

NXUMALO:
I agree that the circumstances are not the same—well, not entirely—but the end result, my people were left with anger and sorrow.

SCHEEPERS:
And you wanted to use that anger to generate disorder?

DEFENSE COUNSEL KAPLAN:
I must object to the way my learned friend phrases that.

SCHEEPERS:
That anger and sorrow were at the basis of your wanting to celebrate Soweto ’76 as a remembrance day?

NXUMALO:
I believe we owe a great deal to those children. They showed us that change in this country must come from within. That we must make a stand against a system we abhor.

SCHEEPERS:
You presume to speak for all blacks?

NXUMALO:
Someone must. We have been silent for too long.

SCHEEPERS:
In celebrating our great victory over Dingane, we Afrikaner people observe a solemn Day of the Covenant in which we pray for peace, not disorder; for unity, not chaos. Were those your aims in sponsoring Soweto ’76?

NXUMALO:
We also want peace and unity for all. And prayers for the children who fell at Soweto, victims of the unjust system which deprives them of a right to citizenship in the land of their birth.

JUDGE BROODRYK:
Mr. Nxumalo, this court is not here to debate what happened at Soweto in 1976. We cannot decide whether the students were victims of injustice or not. Confine your answers to Mr. Scheeper’s questions.

NXUMALO:
My Lord, the Afrikaner in his schools, his churches, his celebrations of the Day of the Covenant is reminded by his teachers, his ministers and his political leaders of Slagter’s Nek, of ground glass in the mealies, the execution of Christoffel Steyn. With deepest respect I submit that such constant remembrance of blood that flowed in the past engenders bad feeling between the races.

BROODRYK:
Mr. Nxumalo, the Afrikaner and the Englishman are of the same race, so what you charge could not possibly take place. We are concerned only with the delicate balance between the white and black races in this country and the danger of fostering ill-will between them. By your irresponsible speeches, for example.

NXUMALO:
I do not believe that the black people of this country can be denied the right to remember the Slagter’s Nek of their history. I mean Sharpeville and Soweto ’76. Until we find our own dignity and identity, we can never be free.

SCHEEPERS:
What would have to happen, Mr. Nxumalo, for you to consider yourself a free man?

NXUMALO:
Apartheid would have to end. Blacks would have to have a proper voice in running this country.

SCHEEPERS:
Ah! You mean one-man, one-vote?

NXUMALO:
Yes, I suppose I do.

SCHEEPERS:
Do you think that by encouraging bitterness among your people, by waving Soweto ’76 at them, you’ll get your vote?

NXUMALO:
A man has a right, surely, to remember ugly things that have happened to him. To us the dead children of Soweto were heroes.

SCHEEPERS:
It’s impossible to follow your reasoning. Those young people were undisciplined rioters. They were led by professional agitators.

NXUMALO:
I must beg to contradict. The young black boys of Soweto were rather similar to the young Boer lads who fought the English in 1899. They took up arms against their oppressors, the English.

SCHEEPERS:
Ah-ha! So you do advocate that young blacks take up arms against the Afrikaner? Against the legal government?

KAPLAN:
My Lord, my client said nothing of the sort. I must object most strenuously to my learned friend’s attempt to misconstrue the evidence.

BROODRYK:
Sustained. Mr. Nxumalo, I can appreciate some of the points you are making, but it seems to me there is a danger that if your inflammatory remarks are constantly thrust before the public, a revolutionary climate will be fostered throughout this country.

NXUMALO:
Yes, there is such a danger, my Lord.

BROODRYK:
Then should you not pursue your objectives through a more peaceful method? By negotiation rather than violence?

NXUMALO:
Most certainly that would be preferable.

BROODRYK:
Then you agree that by working through established channels, and there are many, mass upheaval could be averted?

At this point the judge was so reasonable and conciliatory that Saltwood, listening carefully to every nuance, felt certain that if Nxumalo reciprocated, Judge Broodryk would be eager to find him guilty only to a limited degree, and his life would be spared, for everyone in the courtroom knew that Nxumalo had performed no overt act of real revolution. But to Saltwood’s dismay, his friend refused the olive branch the judge had extended. Indeed, his rejection of Broodryk’s invitation was cold and total.

NXUMALO:
Your Honor, we cannot accept the status quo because we had no voice in establishing it. We will never accept it, for this is our land, too, and we of this generation cannot abdicate the rights of our children still to be born. We are opposed to apartheid now and forever.

BROODRYK:
But people may not oppose it, Mr. Nxumalo, with
actions that contravene the law of the land. They may not engage in acts of terrorism to upset what the government has patiently and justly ordained.

NXUMALO:
Not justly, my Lord.

KAPLAN:
What he means, my Lord—

BROODRYK:
I know what he means. Let him continue.

NXUMALO:
I stand before this court accused of terroristic activities. Every day in South Africa acts of terrorism are committed against my people through the harsh application of laws not justly ordained. To me it was an act of terror to banish an old woman to a resettlement camp. It is an act of terror to starve a young mind hungry for learning. It is an act of terror to force apart a man and woman who love each other. It is an act of terror to say to a black man born on this land, “You cannot live here because white people want the land.” Or to tell that same man he cannot go to a town where he can earn a decent living for his family.

BROODRYK
(with great patience):
I am waiting for your point, Mr. Nxumalo.

NXUMALO:
I will state it honestly, my Lord. We deny that the laws of apartheid are just or that this is a just society. We see it as a society with only one ambition—to maintain white supremacy.