Jeremy Gordin writes on the long forgotten trial of the revolutionary martyr
He and we were a party of men walking together, seeing, hearing, feeling, understanding the same world; and in two minutes, with a sudden snap, one of us would be gone – one mind less, one world less. – ‘A Hanging’ (1931), George Orwell.
I will enlarge no more on the evidence, but submit it to you, gentlemen – Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence: nor is the law less stable than the fact. – John Adams, 1770.
The kindest thing I can think of saying about Julius Malema is that if you compare a photograph of Juju’s face and head without a hat to a pic of Benito Mussolini in the 1930s (so also wearing no headgear and with his head shaven), the two look remarkably similar.
This is probably because I don’t much care what Malema looks like; it’s what Malema says – or shouts – that irks me most. With few exceptions, if any, it’s racist, crass, hypocritical, duplicitous, and aimed at provoking not just white people but just about everyone except so-called Malema followers.
For example, I found an article dated April 15, 2016 – 2016! – about the SACP voicing its support for Solomon Mahlangu’s family members. They had brought an application to stop the Economic Freedom Fighters “gathering and propagating their shenanigans in the name of [Solomon],” at a planned EFF rally at the University of Pretoria’s Mamelodi campus.
“Comrade Solomon Mahlangu was a stalwart of our struggle for national liberation, member of the African National Congress, and Umkhonto we Sizwe combatant,” the SACP said in a statement. “He had no relationship whatsoever ... with the EFF.”
The article continues: “The North Gauteng High Court today interdicted the EFF in terms of the urgent relief sought by the Mahlangu family.” But it then notes, “the court later rescinded the decision, based on technical grounds and not the substance of the matter” [we are not told what the technical grounds are].
“Malema, who was in the court’s public gallery during the hearing, could not contain his excitement, screaming, ‘What’s my name man, what’s my name, what am I known for!’....”
And so a week or so ago, on 6 April (2022) – presumably to irritate everyone even more, and because it was the anniversary of the day on which Mahlangu was hanged at Pretoria Central Prison on 6 April 1979 and the anniversary of the day on which Jan van Riebeeck landed at the Cape in 1652 [i] – Malema opined the following:
“On 6 April , the whites killed Solomon Mahlangu. They must be reminded that they killed Mahlangu. Who sanctioned the killing of Solomon Mahlangu? It was a judge, a white judge presiding over what is called law. Law is not always just. And if the law is [not?] always just, then it doesn't deserve the respect of the people,” Malema said.
Malema said this while addressing supporters outside the offices of Remgro, of which billionaire Johann Rupert is chairman. And – I am reliably told – Malema spoke thus within four or five days of having attended a glitzy, socialite wedding at one of those Stellenbosch wine estates [ii], ones at which his followers seldom spend time – and at which no one was allowed to take pics of Malema. And about which the media was not told; or perhaps the media chose not to tell us. What’s it called again? Oh yes, being “embedded” ...
Malema added: “These people [such as Rupert, presumably] own everything – toothpaste, the banks, and the air we breathe. They even own the judges. Rupert has a golf estate in Mpumalanga. When you go for a golf day there, you will count [no] less than 20 judges who are playing golf. ... They own the law firms. They decide who becomes an advocate.”
Now, what Rupert has to do with Mahlangu or judges, or what present judges have to do with those of the ancien regime, or what precisely the connection is between judges and golf estates, I’m not entirely certain [iii] .
Anyway, as might have been predicted, Malema’s comments (especially the ones about judges) sparked outrage from “legal bodies” and other interested parties. You can find these reactions in the above-mentioned News24 article; read Douglas Gibson’s “Malema and Rupert”; or take a look at Raymond Suttner’s curate’s egg of an article, “The EFF, the judiciary and the necessity to still be freedom fighters”.
One of the questions Suttner asks is this: “Since the [EFF] has little to contribute to our political conversation, offering empty rhetoric instead of analysis or ideas that can help the country out of the present crises, is it necessary to write about the [EFF]?”
My answer would be no – though like many journalists, I haven’t been able to resist the temptation and have just gone and done it.
I would, however, like to write about Solomon Mahlangu.
On April 8, 1979, two days after Mahlangu was hanged, I wrote an article published in the now disappeared Johannesburg Sunday Express.
Headlined “The frightened child who turned to terror,” it was about Mahlangu, and it was closely based on my reading of “the reports on Mahlangu made by a leading psychiatrist, a professor of social science and an experienced social worker,” which were appended to one of Mahlangu’s unsuccessful appeals for clemency.
Given that I was a newly graduated cadet journalist, and that editor Rex Gibson later found the article worthy enough to be submitted to the also now disappeared SFW Awards for Enterprising Journalism (it didn’t win anything), I was proud of the piece [iv].
Looking at it now, 43 years later, I see that I was pretty even-handed, as a journalist ought to be, by introducing the article as follows: “There are three faces to the 22-year-old Mahlangu. One is that of an ANC-trained terrorist, a member of a killer squad ... which mowed down two innocent citizens – Mr Rupert Kassner and Mr Kenneth Wolfendale – as well as blowing up a kombi with a hand grenade”.
I then continued by describing Mahlangu’s “second face” – that of the committed political martyr, the face that now “forms” the generally accepted narrative in this country. Then I presented the third face, the one I was punting – that of a “frightened child” whose background and conditions of life dictated his actions far more than any ideology or reasoned political standpoint.
Incidentally, I did know then (though perhaps I know it better now) that reports appended to a clemency application are obviously drafted in such a way as to win sympathy for the applicant, and I should add that I’d never met Mahlangu – all of which is to say that maybe I got him all wrong.
So, in fairness to Mahlangu (and his family), here is an excerpt (part of which is often quoted) from the introduction to Fighting for Mandela: The explosive autobiography of the woman who helped to destroy apartheid (2016) by the late Priscilla Jana, Mahlangu’s attorney [v]. The emphases are mine.
“Solomon walked in. I saw him – strong, composed and resigned. He held both my hands and looked into my eyes. ‘It’s over,’ he said. I had come to admire this young man’s courage ... I lost my composure. I broke down ... It was Solomon who comforted me. When our time was up, Solomon asked me to take a message to South Africans and to everyone who was fighting for freedom. He said: ‘Tell my people that I love them. They must continue the fight. My blood will nourish the tree that will bear the fruits of freedom’.”
I am surprised now at my even-handedness in the article [vi] – because personally I was indeed appalled by the fact that Mahlangu’s appeals for clemency had been turned down, twice, and that he had been hanged.
I wasn’t the only one. On 13 April 1979, one E Cameron wrote to the Rand Daily Mail, suggesting that people ought to have “screamed about” not only those killed by ANC gunmen but about everyone involved, including Mahlangu, and also about “the harshness of the society of which we are all part” [vii].
In any case, it has now turned out that it is the “second face” of Mahlangu that is the one that has been accepted by most people and is now upheld as “the truth”.
If now, in 2022, one put forward the “thesis” of my 1979 article – that what happened to Mahlangu was largely the result of being a confused, impressionable and “bullied” youngster born into poverty-stricken circumstances, a young man who ended up in the wrong place at the wrong time, for the wrong reasons, and who was not therefore a “hero” – if you suggested this thesis to Malema or anyone else who now celebrates Mahlangu as a brave Struggle lionheart, you’d be told to go to hell without passing Go.
And if you suggested as worthy of consideration the “first face” of Mahlangu – an unabashed terrorist member of a killer ANC squad – well ...
Here from South African History Online is, I’d say, a fair example of how Mahlangu is now “viewed”. It’s an excerpt from “a speech delivered in Bundung [presumably Bandung, Indonesia] by late ANC President OR Tambo” [no date provided]: “In his brief but full life Solomon Mahlangu towered like a colossus, unbroken and unbreakable, over the fascist lair. He, on whom our people have bestowed accolades worthy of the hero-combatant that he is, has been hanged in Pretoria like a common murderer.”
Or consider the purportedly serious suggestion made by someone, also on South African History Online (see endnote i), that BJ Vorster, Jimmy Kruger and/or whoever else was responsible for the “administration of justice” in 1979 actually called in some history prof to ensure that an “appropriate date” (such as the day Van Riebeeck landed in the Cape) was chosen for Mahlangu’s hanging [viii].
In short, these days to question the “accepted facts” of one of the country’s “Struggle icons,” to wonder about the “received narrative,” has become unacceptable.
I have confession to make, however.
When I wrote my article, I had of course read the reports appended to Mahlangu’s clemency applications, but I had not read the full judgment by Judge CDJ Theron and two assessors [ix] – Theron who is mostly referred to these days, if at all, as one of “those white hanging judges” [x].
But now I have read Theron’s judgment (case 558/1977, Witwatersrand Local Division – Supreme Court; Judg(e)ment and Petitions). It is long, detailed, and careful; nothing peremptory about it. It looks hard and carefully at all the evidence; and, remarkably, it is in some respects sympathetic to Mahlangu, though it finds, with apparently good reasons, that most of his evidence was equivocatory.
I’d also say Theron’s judgment could be found wanting in terms of his willingness to believe what the security branch cops said rather than what Mahlangu claimed [xi]; but what the cops had to say wasn’t germane to the main issues of the case anyway.
Theron found Mahlangu guilty of two counts of murder, two of attempted murder and several charges of sabotage under the Terrorism Act – and condemned him to death. And the main issue about the judgment was that Theron (and his assessors) found Mahlangu guilty of murder in terms of “common purpose”.
Common purpose is a doctrine that allows a court to convict everyone in a group which together commits a crime if they acted in terms of a common purpose – this is generally when the person who actually dealt the fatal blow cannot be identified, but the doctrine can, as I understand it, apply even when “the killer” can be, or has been, identified.
To take a simple example, if you are the getaway driver at a bank robbery, and if one of your fellow robbers, who has gone inside the bank to grab the loot, shoots someone dead, you are as liable for that murder as the shooter is – because you shared intent or “common purpose” with all the robbers. It doesn’t count that you didn’t pull the trigger. You took part in the robbery, and you are therefore just as “guilty” as anyone else for what occurred.
Finding people guilty in terms of common purpose is, of course, an extremely vexed issue – ask any lawyer – and I’ll get to my own views (for what they’re worth) below. For the moment, let’s return to Jana’s book.
According to Jana, Clifford Mailer [xii], a junior counsel (later to become a SC), and who first took on the Mahlangu defence [xiii], “argued that the doctrine of common purpose was ... totally distorted and misused”. Jana adds: “Mailer said that ‘It was clear that Solomon had had no intention to kill. The circumstances were clear. I had questioned him closely and all the evidence pointed to his truth [the truth of his evidence, presumably]’.”
Additionally, one of the later petitions for clemency stated that the manner in which Theron applied the doctrine extended its parameters “to limits which are logically indefensible, juridically dangerous and … inconsistent with established judicial precedent” [xiv].
But turning to Theron’s judgment, what do I find?
There were three ANC operatives involved in the incident in downtown Johannesburg. They were Mondy Motloung, George ‘Lucky’ Mahlangu (no relation to Solomon), and Solomon Mahlangu. When, as they alighted from a taxi, they were asked by a black constable wearing civvies what they were carrying – bags with firearms and grenades – the three started running. Lucky Mahlangu, however, dropped his bag and ran away (and, to the best of my knowledge, has never been located since).
Solomon and Motloung ran down the road away together – into a “warehouse” – and there Motloung [xv] killed Kassner and Wolfendale and threw a grenade that destroyed a kombi. It was common cause, in other words, that Motloung pulled the trigger. Solomon did not, however, put down his weapon and grenade, or try to “disappear”.
Now, Mahlangu told the court that he had been pretty much “brain-washed” into joining the ANC and going into exile for military training by an older “father figure” in his life (Thomas Masuku). He also said that he and his comrades had been clearly instructed by their commanders not to kill ordinary people (“civilians”) in South Africa – and that he for one would never have done that.
Theron, however, pointed to the fact that Mahlangu had not been “imprisoned” by the ANC (as unpleasant as the discipline and atmosphere in the camps had been, according to Mahlangu), but had of his own free will left the country and returned as part of a “military” unit. Theron also noted that Mahlangu had not, like Lucky, dumped his weapons and melted into the crowd (Solomon was seen by a witness extracting a firearm and grenade from his bag) – though he could have done both (at least, according to Theron) – and especially as in court Mahlangu said he had been “shocked” by what Motloung had done.
Nor did Mahlangu at any time lay down his weapon while in the warehouse itself, though he also could have done this; he in fact was seen putting a magazine into his weapon.
Above all, Theron found that the reason Mahlangu never fired any shots was not because he was a man of peace but because his Scorpion firearm, though loaded, couldn’t be fired – it was found immediately after the incident to have been jammed.
For these reasons, although it was common cause that Mahlangu did not kill anyone, Theron found that Mahlangu had shared a “common purpose” with Motloung and was thus guilty of two murders whether or not he pulled the trigger.
Now, according to Jana, Mailer had to fight “against the appointment of the notorious [sic] Judge Theron and his two assessors, the whole team having a reputation for toughness, cruelty and outright racism. ... [Mailer] sought to have the judge recused but failed.”
Not only this. According to Jana, “both [Mohamed SC and Mailer] were subjected to open abuse by the general public in the gallery and the judge. There were threats to throw us out of court and to report us to the authorities. The judge occasionally stormed out of court. He interfered with the cross-examination of our witnesses and would unduly assist the State’s witnesses”. [My emphases.]
This is what Jana wrote. And I have no useful reason to disbelieve, or argue with, a well-known human rights lawyer, an ANC MP (1994-99), ambassador to the Netherlands and Ireland, SAHRC commissioner, member of the committee responsible for the roll-out of the TRC, and, above all, someone who can’t now respond.
But I do have Theron’s judgment – which contains no complaints or comments, veiled or otherwise, about the defence counsel, no signs of intemperance or bias [xvi], and which is exceedingly difficult to fault.
If Theron had been beyond the pale in any of the ways described by Jana, his judgment would surely have been appealed on that basis. But it never was. It was appealed on the basis of Theron’s application of the doctrine of common purpose.
Am I saying that, in terms of the law, given that the doctrine of common purpose was applied, Mahlangu was guilty as charged? I am. The facts derived from the evidence are there and were carefully analysed by Theron, whatever his fallibilities or personal sins might (or might not) have been.
Am I saying that Mahlangu should therefore have been hanged? No, I am not.
First – though I’m not qualified to get into the various legal arguments – I do think, after discussion with two senior SCs, that common purpose is a potentially dangerous legal instrument. It is a basic principle of our law that someone who commits a murder must be proved actually to have done so (actus reus) and to have had the intent (mens rea) to do so.
In Mahlangu’s case, it was common cause that he did not pull the trigger (Motloung did); but Theron, invoking the doctrine of common purpose, found that Mahlangu did have the intent – and that only the fact of his weapon jamming prevented him from joining Motloung in the act of murder. It could be cogently argued then, as suggested by many, that it was a questionable judgment – and, above all, a dicey sentence. [xvii]
Second, I think the hanging of Mahlangu was unnecessarily cruel – and a tragedy, as suggested at the time by (now) Justice Cameron; and that the then government and powers-that-were should have found a way for Mahlangu to get clemency. There is always a way.
By having considered Theron’s judgment, am I therefore also saying that my 1979 article was incorrect and that Mahlangu was merely a bloodthirsty, ANC-trained terrorist who simply wanted to kill white people or, alternatively, a true “ANC believer”? No, I am not.
Lame as it might sound, I believe most people can be surprisingly complex, can be hosts to a jumble of seemingly contradictory motivations; and/but although I think Mahlangu’s life circumstances did play a major role in what happened to him [xviii] – I for one would not remove Mahlangu’s “agency”. I accept, that is, that he did have what he thought were legitimate reasons for joining the ANC and being trained as a “freedom fighter”.
The “difficulty” with the clemency applications, however, is that they sought on Mahlangu’s behalf (presumably with his permission, though I don’t know) to remove his agency – to make of him a virtual puppet, whose every move was dictated by his life experiences and by others. I suppose, however, that the response to this “argument” is that when it comes to keeping someone from the gallows, you have to come up with every argument that you can.
And the same goes, I would guess, for the evidence that Mahlangu gave in court: a person on trial for his life must and will say what he’s got say and/or what his counsel tell him to say. You and I (certainly I) would, if our lives were at stake, take this tack.
Yet it has to be noted, in terms of the evidence he gave, that Mahlangu did not acquit himself as a lionheart of the Struggle. After all, at the 1963/4 Rivonia trial Nelson Mandela and nine others were also on trial for their lives [xix] – but, as we know, spoke out unflinchingly about their beliefs.
Mahlangu, unfortunately, did not; he equivocated and was caught out when what he “claimed” was compared by the judge to what he did.
So, returning now to the first part of this article, it’s clear “whites” did not kill Mahlangu; a Supreme Court judge passed sentence in a court that operated in terms of the rules of law – even though black people were not found in the judiciary then, and even if we find aspects of the law that the judge used to be distasteful.
But of greater significance, in my view, are a number of other points that issue from reading Theron’s judgment.
One of these is that you can make Mahlangu into a martyr – and if you’re Malema and others, you can now use what happened to Mahlangu as a stick with which to beat the current judiciary.
But the actual facts of what Mahlangu did and of Theron’s judgment should not be excised.
For example, as best as I can tell, the key piece of evidence in Mahlangu’s trial (the jammed firearm) has been largely forgotten; but, if Theron got it right, then Mahlangu was not a peace-loving martyr – nor, given his behaviour in the trial, was he someone who had the courage of his convictions (though we don’t know, as I have indicated, the extent to which the defence, with doubtless the best of intentions, “dictated” the evidence he gave).
All of which is to say that we ought not to flinch from the truth. For if we do, while blaming others (“white judges”) into the bargain, if we draw false pictures, or manufacture propaganda fodder, then it is we who turn our “heroes” into clichés and even caricatures.
Finally, I am not letting myself off the hook for not having read, until now, Theron’s Mahlangu judgment.
Here’s why. When it comes to subscribing to and regurgitating dangerous cant, it turns out to be frighteningly easy to become a Malema – which is precisely what we all need to guard against.
[i] According to South African History Online: “The day of execution [of Mahlangu], observers believe, was deliberately chosen [we are not told by whom] to coincide with the 327th anniversary of Jan van Riebeeck’s arrival at the Cape in 1652.”
[ii] Owned, as is common cause, by a Ukrainian oligarch – presumably, however, a Putin-supporting Ukrainian oligarch; one wouldn’t want Malema or the EFF, having proclaimed their support for Russia, to be doubly embarrassed, if embarrassed they can ever be ...
[iii] Rupert hasn’t yet invited me for a drink in Stellies, I don’t know too many judges, and I don’t play the game with the little white ball; when I was a lad, golf was what was played on Wednesday afternoons by goyishe bank managers. But if Rupert et al are indeed responsible for my toothpaste and its pesky screw-on cap, for the grubby air I breathe, or above all if it was one of them who made Dali Mpofu an advocate, I am certainly going to have a word or two.
[iv] For a typically (Denis) Beckettian piece on the SFW, see here.
[v] I note for the record that the book was co-written by Barbara Jones, billed then as “the Africa Correspondent for the Mail on Sunday newspaper”.
[vi] I’d be fascinated to know whether my original draft was as even-handed as the final one turned out to be – or whether one of my betters had returned the original draft saying it was too one-aided, too “anti-establishment”. It’s alas too late to ask him – but I have a sneaking suspicion, the more I think about it, that deputy editor JC “Koosie” Viviers (a significant mentor) indeed returned the early draft, telling me to “balance” it for the sake of fairness.
[vii] Justice Edwin Cameron confirmed this week that he indeed wrote the letter.
[viii] Vorster et al might have been – and apparently were – as mean as cat’s pxss, but for one thing, they had a raft of other problems at the time; for them Mahlangu’s execution was hardly front of mind. For another, I don’t think they gave a damn.
[ix] It’s a jellyfish-like thing as well as pointless to proffer excuses. Still, for the record: I was assigned to write about Mahlangu on the mid-morning of his death, a Friday – i.e., I had only a few hours in which to complete the article (all copy had to be completed by Friday afternoons so that Saturdays would be “clear” – and the news editor, my “line manager,” liked to be at the Federal Hotel well before the sun crossed the yardarm); there were no emails or cell phones; I, a lowly newbie, rushed around trying to find the judgment and allied documentation, but other journalists were too “busy” to tend to my needs; all I could lay my hands on was one of the clemency applications – kindly given to me, if I remember correctly, by the RDM’s Patrick Laurence.
[xi] Mahlangu told the court he had been punched, kicked and dropped onto his head by the security police. Now, his trial was of course not an inquest and he appeared before a judge. Nevertheless, I couldn’t help recalling, mutatis mutandis, something Breyten Breytenbach wrote about torture in The True Confessions of an Albino Terrorist (p 320, 1984): “Magistrates do not allocate blame to the torturers when they preside over an inquest. How could they? Whom should they believe? Dead men don’t talk, and survivors – being ‘terrorists’– are ipso facto ‘unreliable witnesses’.” [My emphasis.]
Yet, in fairness to Judge Theron, it is important to note that he explained in minute detail why he rejected most of Mahlangu’s evidence about being assaulted; and it is a fastidiously argued and cogent explanation. (An examination by a doctor uncovered no injuries – except for one that appeared to be the result of shrapnel from the hand grenade blast initiated by Mahlangu’s comrade, Mondy Motloung.)
[xii] As far as I can establish, Mailer left SA decades ago and is now a judge in England.
[xiii] Ismail Mahomed SC, who would become chief justice in 1996, joined the defence team later on at Mahlangu’s trial – and argued for mitigation before final sentence.
[xv] Motloung was found unfit to stand trial – due to a fractured skull and other brain damage (and transferred to a psychiatric unit, where Priscilla Jana says, she visited him until he died in 2006). Whether this damage was due to one of the men in the warehouse repeatedly hitting Motloung on the head with both a curtain rail and Motloung’s own weapon – or whether Motloung was brain damaged during “interrogation” – is not clear. Mahlangu apparently made no mention of Motloung during his trial. According to Jana, Motloung was “beaten so severely by police and prison officers that he sustained serious brain damage. My first sight of him was shocking. His face was completely deformed and there was a huge injury on his head.”
[xvi]Other than, as I have said, the judge’s “trust” in the security branch, which was irrelevant to the case anyway.
[xvii] If I have this correct, South African courts have rejected what is known as the versari in re illicita rule, which states that a person may be held liable for any criminal consequences resulting from his/her unlawful conduct – a rule that removes the requirement of culpability. In other words, in our courts, both actus reus (aiming the gun and pulling the trigger) and mens rea (having the intention to kill) must be simultaneously present. In yet other words, by invoking the doctrine of common purpose in Mahlangu’s case, by inferring Mahlangu’s mens rea – although he thought he had valid grounds on which to do so – it can be said that Theron was skating on very thin ice.
[xviii]Mahlangu himself said that he had been “brain-washed” into going into exile and joining the ANC by an older father figure in his life – this might not have been the whole “truth,” but there’s no reason why it was not part of the truth.
[xix]“Although the prosecution did not formally request the death penalty, close observers of the [Rivonia] trial considered such a sentence to be implicit in the prosecutor's presentation of his case”.