- 22 October 1962 (Creation)
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Place: Old Synagogue Court Pretoria South Africa
Date: 22 October 1962
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MANDELA: Your Worship, before I plead to the charge, there are one or two points I would like to raise.
Firstly, Your Worship will recall that this matter was postponed last Monday at my request until today, to enable Counsel to make the arrangements to be available here today. Although Counsel is now available, after consultation with him and my attorneys, I have elected to conduct my own defence. Some time during the progress of these proceedings, I hope to be able to indicate that this case is a trial of the aspirations of the African people, and because of that I thought it proper to conduct my own defence. Nevertheless, I have decided to retain the services of Counsel, who will be here throughout these proceedings, and I also would like my attorney to be available in the course of these proceedings as well, but subject to that I will conduct my own defence.
The second point I would like to raise is an application which is addressed to Your Worship. Now at the outset, I want to make it perfectly clear that the remarks I am going to make are not addressed to Your Worship in his personal capacity, nor are they intended to reflect upon the integrity of the court. I hold Your Worship in high esteem and I do not for one single moment doubt your sense of fairness and justice. I must also mention that nothing I am going to raise in this application is intended to reflect against the Prosecutor in his personal capacity.
The point I wish to raise in my argument is based not on personal considerations, but on important questions that go beyond the scope of this present trial. I might also mention that in the course of this application I am frequently going to refer to the white man and the white people. I want at once to make it clear that I am no racialist, and I detest racialism, because I regard it as a barbaric thing, whether it comes from a black man or from a white man. The terminology that I am going to employ will be compelled on me by the nature of the application I am making.
I want to apply for Your Worship's recusal from this case. I challenge the right of this court to hear my case on two grounds.
Firstly, I challenge it because I fear that I will not be given a fair and proper trial. Secondly, I consider myself neither legally nor morally bound to obey laws made by a parliament in which I have no representation.
In a political trial such as this one, which involves a clash of the aspirations of the African people and those of whites, the country's courts, as presently constituted, cannot be impartial and fair.
In such cases, whites are interested parties. To have a white judicial officer presiding, however high his esteem, and however strong his sense of fairness and justice, is to make whites judges in their own case.
It is improper and against the elementary principles of justice to entrust whites with cases involving the denial by them of basic human rights to the African people.
What sort of justice is this that enables the aggrieved to sit in judgement over those against whom they have laid a charge?
A judiciary controlled entirely by whites and enforcing laws enacted by a white parliament in which Africans have no representation - laws which in most cases are passed in the face of unanimous opposition from Africans -
MAGISTRATE: I am wondering whether I shouldn't interfere with you at this stage, Mr Mandela. Aren't we going beyond the scope of the proceedings? After all is said and done, there is only one court today and that is the White Man's court. There is no other court. What purpose does it serve you to make an application when there is only one court, as you know yourself. What court do you wish to be tried by?
MANDELA: Well, Your Worship, firstly I would like Your Worship to bear in mind that in a series of cases our courts have laid it down that the right of a litigant to ask for a recusal of a judicial officer is an extremely important right, which must be given full protection by the court, as long as that right is exercised honestly. Now I honestly have apprehensions, as I am going to demonstrate just now, that this unfair discrimination throughout my life has been responsible for very grave injustices, and I am going to contend that that race discrimination which outside this court has been responsible for all my troubles, I fear in this court is going to do me the same injustice. Now Your Worship may disagree with that, but Your Worship is perfectly entitled, in fact, obliged to listen to me and because of that I feel that Your Worship-
MAGISTRATE: I would like to listen, but I would like you to give me the grounds for your application for me to recuse myself.
MANDELA: Well, these are the grounds, I am developing them, sir. If Your Worship will give me time -
MAGISTRATE: I don't wish to go out of the scope of the proceedings.
MANDELA: - Of the scope of the application. I am within the scope of the application, because I am putting forward grounds which in my opinion are likely not to give me a fair and proper trial.
MAGISTRATE: Anyway proceed.
MANDELA: As your Worship pleases. I was developing the point that a judiciary controlled entirely by whites and enforcing laws enacted by a white parliament in which we have no representation, laws which in most cases are passed in the face of unanimous opposition from Africans, cannot be regarded as an impartial tribunal in a political trial where an African stands as an accused.
The Universal Declaration of Human Rights provides that all men are equal before the law, and are entitled without any discrimination to equal protection of the law. In May 1951, Dr D F Malan, then Prime Minister, told the Union parliament that this provision of the Declaration applies in this country. Similar statements have been made on numerous occasions in the past by prominent whites in this country, including judges and magistrates. But the real truth is that there is in fact no equality before the law whatsoever as far as our people are concerned, and statements to the contrary are definitely incorrect and misleading.
It is true that an African who is charged in a court of law enjoys, on the surface, the same rights and privileges as an accused who is white in so far as the conduct of this trial is concerned. He is governed by the same rules of procedure and evidence as apply to a white accused. But it would be grossly inaccurate to conclude from this fact that an African consequently enjoys equality before the law.
In its proper meaning equality before the law means the right to participate in the making of the laws by which one is governed, a constitution which guarantees democratic rights to all sections of the population, the right to approach the court for protection or relief in the case of the violation of rights guaranteed in the constitution, and the right to take part in the administration of justice as judges, magistrates, attorneys-general, law advisers and similar positions.
In the absence of these safeguards the phrase 'equality before the law', in so far as it is intended to apply to us, is meaningless and misleading. All the rights and privileges to which I have referred are monopolised by whites, and we enjoy none of them.
The white man makes all the laws, he drags us before his courts and accuses us, and he sits in judgement over us.
It is fit and proper to raise the question sharply, what is this rigid colour-bar in the administration of justice? Why is it that in this courtroom I face a white magistrate, am confronted by a white prosecutor, and escorted into the dock by a white orderly? Can anyone honestly and seriously suggest that in this type of atmosphere the scales of justice are evenly balanced?
Why is it that no African in the history of this country has ever had the honour of being tried by his own kith and kin, by his own flesh and blood?
I will tell Your Worship why: the real purpose of this rigid colour-bar is to ensure that the justice dispensed by the courts should conform to the policy of the country, however much that policy might be in conflict with the norms of justice accepted in judiciaries throughout the civilised world.
I feel oppressed by the atmosphere of white domination that lurks all around in this courtroom. Somehow this atmosphere calls to mind the inhuman injustices caused to my people outside this courtroom by this same white domination.
It reminds me that I am voteless because there is a parliament in this country that is white-controlled. I am without land because the white minority has taken a lion's share of my country and forced me to occupy poverty-stricken Reserves, over-populated and over-stocked. We are ravaged by starvation and disease . . .
MAGISTRATE: What has that got to do with the case, Mr. Mandela?
MANDELA: With the last point, Sir, it hangs together, if Your Worship will give me the chance to develop it.
MAGISTRATE: You have been developing it for quite a while now, and I feel you are going beyond the scope of your application.
MANDELA: Your Worship, this to me is an extremely important ground which the court must consider.
MAGISTRATE: I fully realise your position, Mr Mandela, but you must confine yourself to the application and not go beyond it. I don't want to know about starvation. That in my view has got nothing to do with the case at the present moment.
MANDELA: Well, Your Worship has already raised the point that here in this country there is only a white court. What is the point of all this? Now if I can demonstrate to Your Worship that outside this courtroom race discrimination has been used in such a way as to deprive me of my rights, not to treat me fairly, certainly this is a relevant fact from which to infer that wherever race discrimination is practised, this will be the same result, and this is the only reason why I am using this point.
MAGISTRATE: I am afraid that I will have to interrupt you, and you will have to confine yourself to the reasons, the real reasons for asking me to recuse myself.
MANDELA: Your Worship, the next point which I want to make is this: I raise the question, how can I be expected to believe that this same racial discrimination which has been the cause of so much injustice and suffering right through the years should now operate here to give me a fair and open trial? Is there no danger that an African accused may regard the courts not as impartial tribunals, dispensing justice without fear or favour, but as instruments used by the white man to punish those amongst us who clamour for deliverance from the fiery furnace of white rule. I have grave fears that this system of justice may enable the guilty to drag the innocent before the courts. It enables the unjust to prosecute and demand vengeance against the just. It may tend to lower the standards of fairness and justice applied in the country's courts by white judicial officers to black litigants. This is the first ground for this application: that I will not receive a fair and proper trial.
The second ground of my objection is that I consider myself neither morally nor legally obliged to obey laws made by a parliament in which I am not represented.
That the will of the people is the basis of the authority of government is a principle universally acknowledged as sacred throughout the civilised world, and constitutes the basic foundations of freedom and justice. It is understandable why citizens, who have the vote as well as the right to direct representation in the country's governing bodies, should be morally and legally bound by the laws governing the country.
It should be equally understandable why we, as Africans, should adopt the attitude that we are neither morally nor legally bound to obey laws which we have not made, nor can we be expected to have confidence in courts which enforce such laws.
I am aware that in many cases of this nature in the past, South African courts have upheld the right of the African people to work for democratic changes. Some of our judicial officers have even openly criticised the policy which refuses to acknowledge that all men are born free and equal, and fearlessly condemned the denial of opportunities to our people.
But such exceptions exist in spite of, not because of, the grotesque system of justice that has been built up in this country. These exceptions furnish yet another proof that even among the country's whites there are honest men whose sense of fairness and justice revolts against the cruelty perpetrated by their own white brothers to our people.
The existence of genuine democratic values among some of the country's whites in the judiciary, however slender they may be, is welcomed by me. But I have no illusions about the significance of this fact, healthy a sign as it might be. Such honest and upright whites are few and they have certainly not succeeded in convincing the vast majority of the rest of the white population that white supremacy leads to dangers and disaster.
However, it would be a hopeless commandant who relied for his victories on the few soldiers in the enemy camp who sympathise with his cause. A competent general pins his faith on the superior striking power he commands and on the justness of his cause which he must pursue uncompromisingly to the bitter end.
I hate race discrimination most intensely and in all its manifestations. I have fought it all during my life; I fight it now, and will do so until the end of my days. Even although I now happen to be tried by one whose opinion I hold in high esteem, I detest most violently the set-up that surrounds me here. It makes me feel that I am a black man in a white man's court. This should not be. I should feel perfectly at ease and at home with the assurance that I am being tried by a fellow South African who does not regard me as an inferior, entitled to a special type of justice.
This is not the type of atmosphere most conducive to feelings of security and confidence in the impartiality of a court.
The court might reply to this part of my argument by assuring me that it will try my case fairly and without fear or favour, that in deciding whether or not I am guilty of the offence charged by the State, the court will not be influenced by the colour of my skin or by any other improper motive.
That might well be so. But such a reply would completely miss the point of my argument.
As already indicated, my objection is not directed to Your Worship in his personal capacity, nor is it intended to reflect upon the integrity of the court. My objection is based upon the fact that our courts, as presently constituted, create grave doubts in the minds of an African accused, whether he will receive a fair and proper trial.
This doubt springs from objective facts relating to the practice of unfair discrimination against the black man in the constitution of the country's courts. Such doubts cannot be allayed by mere verbal assurances from a presiding officer, however sincere such assurances might be. There is only one way, and one way only, of allaying such doubts, namely, by removing unfair discrimination in judicial appointments. This is my first difficulty.
I have yet another difficulty about similar assurances Your Worship might give. Broadly speaking, Africans and whites in this country have no common standard of fairness, morality, and ethics, and it would be very difficult to determine on my part what standard of fairness and justice Your Worship has in mind.
In their relationship with us, South African whites regard it as fair and just to pursue policies which have outraged the conscience of mankind and of honest and upright men throughout the civilised world. They suppress our aspirations, bar our way to freedom, and deny us opportunities to promote our moral and material progress, to secure ourselves from fear and want. All the good things of life are reserved for the white folk and we blacks are expected to be content to nourish our bodies with such pieces of food as drop from the tables of men with white skins. This is the white man's standard of justice and fairness. Herein lies his conceptions of ethics. Whatever he himself may say in his defence, the white man's moral standards in this country must be judged by the extent to which he has condemned the vast majority of its inhabitants to serfdom and inferiority.
We, on the other hand, regard the struggle against colour discrimination and for the pursuit of freedom and happiness as the highest aspiration of all men. Through bitter experience, we have learnt to regard the white man as a harsh and merciless type of human being whose contempt for our rights, and whose utter indifference to the promotion of our welfare, makes his assurances to us absolutely meaningless and hypocritical.
I have the hope and confidence that Your Worship will not hear this objection lightly nor regard it as frivolous. I have decided to speak frankly and honestly because the injustice I have referred to contains the seeds of an extremely dangerous situation for our country and people. I make no threat when I say that unless these wrongs are remedied without delay, we might well find that even plain talk before the country's courts is too timid a method to draw the attention of the country to our political demands.
Finally, I need only to say that the courts have said that the possibility of bias and not actual bias is all that needs be proved to ground an application of this nature. In this application I have merely referred to certain objective facts, from which I submit that the possibility be inferred that I will not receive a fair and proper trial.
MAGISTRATE: Mr. Prosecutor, have you anything to say?
PROSECUTOR: Very briefly, Your Worship, I just wish to point out that there are certain legal grounds upon which an accused person is entitled to apply for the recusal of a judicial officer from the case in which he is to be tried. I submit that the Accused's application is not based on one of those principles, and I ask the Court to reject it.
MAGISTRATE: [to Mandela] Your application is dismissed. Will you now plead to your charges?
MANDELA: I plead NOT GUILTY to both charges, to all the charges.
At the end of this trial, on 7 November 1962, Mandela was convicted and sentenced to three years' imprisonment on the charge of incitement and two years for leaving the country without valid travel documents. At the close of the trial the crowd ignored a special prohibition on all demonstrations relating to trials and marched through the streets singing a freedom song, 'Tshotsholoza Tshotsholoza Mandela', a call to Mandela to continue the struggle.