A secret affidavit, containing startling information about events in the judge's chamber during the "Delmas" treason trial, is at the centre of a bitter wrangle in the court. The allegations in the affidavit could affect the entire outcome of the controversial, three-year-long trial. Drawn up and signed by Professor Willem Joubert, who was fired as an assessor to the judge in April last year, it contains descriptions of conversations and events in the judge's chamber while Joubert was still on the bench alongside Mr Justice Kees Van Dijkhorst. The contents are reputed to give a dramatic insight into the judge's attitudes towards the accused -formed at a relatively early stage of the trial-and could have a major effect on the outcome of any appeal.
The judge yesterday refused, for the second time, to allow the affidavit to be admitted to the court records. He was hearing an application for leave to appeal from the five accused who were jailed when sentence was handed down last week. Justice Van Dijkhorst said he had no intention of studying or accepting the affidavit. The defence, he said, could submit it to the Appellate Division of the Supreme Court for consideration as part of the appeal. The defence has previously tried to admit the affidavit to the records, which would allow it to be reported.
However, Van Dijkhorst has ruled that it is admissable because it contradicts his version of what happened and this would constitute contempt of court. Joubert was dismissed as an assessor early last year when the judge dis covered that he had signed the United Democratic Front's Million Signature Campaign. Some of the accused were UDF leaders who were charged with furthering the aims of the ANC through the UDF. That sparked off a long fight between the judge and the defence, with the latter asking for the quashing of the trial and the recusal of the judge and the remaining assessor. The judge admitted two affidavits by Joubert, but refused the third one and ordered that the trial continue with only one assessor. It was said at the time that the defence would not be able to address the issue again until they would be lodging an application for leave to appeal. They did that this week – and were once again stopped by the judge from getting Joubert’s allegations read into the record.
The application was continuing late yesterday, with no sign of an outcome at the time of going to press. The day was marked by heated ex changes between the defence advocates and the judge. The defence submitted documentation of alleged irregularities and "illegal departures" during the proceedings of the trial as part of their argument for leave to appeal. They argued that Justice Van Dijkhorst frequently intervened during the course of the proceedings to ask questions and make observations which were not required for the purpose of clarification, and which were prejudicial to the accused. The defence argued that on a number of occasions the trial judge's interjections might have created an impression of subjectivity and partiality.
Advocate Arthur Chaskalson SC, for the defence, told the court that some of the evidence of the state's witnesses was unreliable. Much of the reasoning of the judgement proceeded from the premise that the United Democratic Front and its affiliates created a revolutionary cli mate. However, he argued, no evidence was given in the trial of such a climate and therefore the court did not have a proper description and under standing of a revolutionary climate.
Advocate George Bizos SC, also for the defence, told the court that out of 126 defence witnesses, approximately 120 had been disbelieved by the court. In a heated argument with the judge, Bizos told, the court that there were irregularities by the state Wit nesses and that the judge made it difficult for the defence counsel to investigate them by interjecting during cross-examination. He told the judge that he had been impatient with the defence counsel during the proceedings of the trial.
This article originally appeared in the Weekly Mail.