Michael Donen
Johannesburg - The trial of Tony Yengeni and 13 others ended 30 years ago - the prosecution gave up. It was dubbed “the Rainbow Trial” because the triallists represented the broad spectrum of South African society.
They defied the apartheid state for nearly two years. When asked to plead guilty or not guilty, they refused. They read out another plea. It ended prophetically: “Victory is certain. South Africa shall be free.”
The regime did not need to try them. It could simply have assassinated them as it did Ruth First, Abram Tiro and many others.
Or it could have murdered them during their detention as it did Steven Biko, Neil Aggett, Ahmed Timol and scores more.
But it needed a show trial, where it could label the ANC as criminal terrorists - firstly, for the benefit of its brainwashed constituency, and secondly, its cold war allies (Ronald Reagan, George Bush, and Margaret Thatcher) who needed to be shown that apartheid South Africa applied the rule of law.
But in fact, the regime systematically abused the legal system, and rigged it to produce the outcome it desired.
The triallists proved this, politically exploiting the space for self expression provided to them by the court proceedings. Apartheid laws and security forces would have worked to suppress them everywhere else in South Africa.
Assisted by counsel (David de Villiers QC, Pius Langa, Johnny de Lange, and I) they used the proceedings to further the aims and objectives of the ANC.
Ironically, they were charged with endeavouring to overthrow the apartheid government in furtherance of the ANC's aims and objectives.
In their plea, the triallists quoted the Freedom Charter: “South Africa belongs to all who live in it and that no government can justly claim authority unless it is based on the will of all the people.”
They stated further that the people had been betrayed by a government that ruled them through the barrel of a gun and without a mandate.
It was the regime who stood accused of treason by the people and the triallists who enjoyed their mandate.
The apartheid regime might call the show trial law and order, but the triallists called it farce. They would use the trial to show that law did not rule, a criminal regime did.
The court then heard how, upon their arrest, Yengeni and Gary Kruser were systematically subjected to interrogation by physical torture (with the approval of senior police officers and government, according to Jeffrey Benzien in his evidence before the TRC).
Benzien had been unleashed by his superiors. He suffocated Yengeni with a wet bag placed over his head, and pulled tight, until his prisoner became unconscious. This continued until satisfactory answers were provided.
The security police denied all of this, but the sheer plethora of similar facts in the interrogation of other victims (like Ashley Forbes, Peter Jacobs, and Anwa Dramat) proved to the world that the state systematically perpetrated crimes against humanity on detainees. A charge to this effect was laid against Benzien in the UK, and counsel warned him of the charge during his cross-examination.
Following arrest every triallist was held for months in solitary confinement under section 29 of the Internal Security Act; beyond the reach of the courts, where the security police operated free of restraint and imposed psychological and physical torture, intimidation, coercion, assault, and lengthy interrogation in order to induce statements.
Most triallists were then induced to appear before compliant magistrates to repeat their statements, as if they were free and voluntary confessions. The triallists exposed the state's criminal modus operandi while death sentences hung over their heads.
History will applaud them - Tony Yengeni, Jennifer Schreiner, Lumka Yengeni, Michael Lumbambo, Mbutu Nduku, Wellington Nkwandla, Mtheteleli Titana, Gary Kruser, Christopher Giffard, Captain Mahlale, Alpheus Ndude, Gertrude Fester, Zuraya Abbas and Colleen Lombard.
Many people today do not know the names of these heroes, or choose to forget the sacrifices they made for us to be free. So, I remind you!
* Michael Donen SC is a legal practitioner and listed counsel of the International Criminal Court.
** The views expressed here are not necessarily those of IOL.