Last summer, we issued an invitation to our incoming first-year class: let’s read a book together this summer about law and lawyers. You’re all about to begin three intense years in close quarters, undergoing professional legal training. Let’s find a way to share broader thoughts about the whole enterprise, kicked off by reflections offered by selected Carolina Law faculty members.
We turned last year to Jonathan Haar’s “A Civil Action,” a harrowing account of a childhood leukemia epidemic in a suburban Boston neighborhood in the 1970s, and the toxic tort lawsuit eventually brought by anguished parents and their flamboyant lawyer, charging that industrial chemical waste, leaching from nearby corporations into a nearby stream, may have been responsible for the children’s illnesses and death.
In some ways, this year’s selection could not be further removed: an ocean away, in sub-Saharan Africa; a different legal system, apartheid South Africa of the 1960s; with completely different legal issues – not the American law of toxic torts but the South African Sabotage Act, a case with allegations of criminal conspiracy, sabotage, even high treason, with death by hanging awaiting defendants who included Nelson Mandela, Walter Sisulu, Govan Mbeki and other “enemies of the state.”
Yet themes that were central in last year’s reading reappear: the nuanced roles of lawyers and judges play in any legal system, the clash of contesting parties and values, and the sometimes dismaying relationship between law and “justice.” The tale told in “Saving Nelson Mandela: The Rivonia Trial and the Fate of South Africa” (Oxford Univ. Press, 2012), authored by former UNC School of Law Dean and Emeritus Professor Kenneth S. Broun, begins with the arrest of key South Africans, who are members of the African National Congress and the banned Communist Party. They were seized on July 11, 1963, at the suburban home of an affluent white family in Rivonia, a Johannesburg suburb, where they had in fact gathered regularly over several years to plan actions meant eventually to overthrow the government.
Documents seized in the living room by the Special Branch of the South African security police included plans for the bombing of South African power plants and rail lines, manuals on how to make and use mining explosives, and documents demonstrating secret contacts with other African leaders and Soviet leaders who supported their efforts. The State, in short, has seized overwhelming evidence that acts illegal under South African law were being planned and/or committed. Moreover, the State had arrested most of the national leadership of the MK, the South African resistance to the apartheid regime, who were all gathered at the farm that day (except for Nelson Mandela, already being held on other charges in the infamous Robbins Island prison off Cape Town).
Yet the “lawful” methods invoked against the defendants by the South African government included indefinite detention without any need for formal charge and denial of access to any lawyers or families. It was only by stealth that the defense team learned the day and place where their trial was scheduled to begin. No prior indictments told the lawyers what charges their clients would face. The legal burden of proof of these crimes, contrary to much of South African and Anglo-American law, fell squarely upon the defendants, not the State, to disprove their guilt. Double jeopardy didn’t apply, so that even if acquitted, these defendants could be immediately retried by the State on virtually identical charges.
The so-called “Rivonia trials” became an international sensation. The South African government defended its role as an indispensable guard against demonstrated terrorism and the international Communist infiltration of South Africa and the West by black extremists. By contrast, through their own testimony and the skill of their lawyers, the defendants placed the apartheid system itself on trial, arguing that in the absence of legal means to assemble and press their grievances, no course but sabotage and resistance lay open to them. Dozens of crucial issues arose before and during the trial:
Should the lawyers work to acquit those defendants who were less deeply implicated in the sabotage efforts or instead present a united front?
Should key defendants like Mandela testify and subject themselves to withering cross-examination or instead stand silent and put the State to its proof?
Could the defendants somehow acknowledge responsibility for the crimes in which they were caught red-handed while escaping the death penalty?
Could pressure from the international community be put to service of either side?
Would the South African judge in charge, in a system that prided itself on the independence of the judiciary, bend to the powerful pressures of the State for conviction (and overcome lifelong racial prejudices), or would he instead allow the defendants to make their larger case to the world, going well beyond issues of guilt or innocence of the charges under South Africa’s draconian racial laws?
Over the coming weeks, we invite you to read and take part in our conversation about this important (short) book. The Kathrine R. Everett Law Library has put together a helpful Reading Guide that can supplement the reading.
Let me throw out an initial series of questions for your comments:
As an attorney, how might you represent residents of a country who have engaged in potentially violent conduct to change a political and legal regime?
What preconditions might justify their conduct, legally or morally?
What recourse exists for residents who are denied political participation in a country, especially if they are singled out for special, punitive laws and conditions that circumscribe their liberty -- laws requiring a ‘pass’ to travel anywhere, law segregating all living areas, laws restricted employment options, and lawing forbidding political gatherings or protest?
On the other hand, how can you readily defend clients who have deliberately defied state laws?
We want this to be a conversation, so please weigh in on the issues I outlined, or on any initial insights you may have. We invite you to join the book club community by posting comments below to this and future blog posts or through Twitter (#UNCLawbookclub) or Facebook. I look forward to hearing from you and to offering a response to your comments.
Please continue to check the blog for updates. A different faculty member will weigh in with their insights and questions regarding the book each week. Happy Reading!
Posted by John Charles Boger (Jack) on Thu. June 19, 2014 10:00 AM