Judge William de Villiers delivered his judgment in the Sarfu case this week, lambasting Mandela for his performance in the witness box. The South African correspondent of The Guardian in London, David Beresford, reflects on his coverage of the hearing and protests: `With respect, M’Lud …’
There have been both moving and historic moments in the life of President Nelson Mandela since his release from prison and both have been played out on occasion in courtrooms.
One of the most moving was when he appeared in the public gallery of the Rand Supreme Court, to watch the humiliation of his then beloved wife, Winnie Madikizela-Mandela, on trial for assault and kidnapping.
He said nothing and did nothing, other than maintain an air of lonely dignity which was almost heart-breaking in its impact.
A more historic moment was when he appeared in the Pretoria Supreme Court, as a witness in the case bought by the South African Rugby Football Union (Sarfu) to squash the appointment of a commission of inquiry into the administration of rugby. Again his performance struck me as admirable and again the key to it was dignity.
Judge William de Villiers’s comments on his performance were astonishing in several respects. Perhaps the most startling was the judge’s complaint that the president used the witness box as a “political podium”.
It was self-evidently an intensely political occasion – as I wrote at the time, one which will be remembered in South Africa’s history books as a moment when “the executive bowed to the judiciary”.
The decision of the judge to subpoena the president, and the decision by the president to obey, were both constitutional milestones. In addition, the issue at stake in the case – as to who was ultimately responsible for national sport in the country – was clearly a political one.
It is difficult to understand how Judge de Villiers could have expected anything other than a political answer, for example, when Mike Maritz, SC – counsel for Sarfu boss Louis Luyt – demanded of Mandela whether there was any difference between his interference in sport and that of John Vorster.
Mandela replied with understandable relish: “I would have hoped Mr Maritz would have known the difference …” and proceeded to give him a lecture on democracy and the differences between representative and unrepresentative government.
The judge’s criticism of the president’s “demeanour” is also difficult to understand, his demeanour having struck me as one of the most impressive aspects of his testimony. Obviously Mandela was what might be described as an unusual witness and one who had been placed in a difficult position.
As I reported on the first day of the hearing: “The president’s appearance had been carefully rehearsed and dignity and respect were clearly intended to be the touchstone of his performance.
“Dignity was his as, immaculate in a charcoal suit, he made his way majestically across the courtroom to take the oath. Respect he ostentatiously extended to the judiciary, gravely declining an invitation from the Bench to take a seat. Authority he maintained, tersely addressing Judge de Villiers as `judge’ instead of the customary `your Lordship’.”
The cross-examination would have been an ordeal for a man half the president’s age. Luyt’s counsel, Maritz, is considered one of the most effective cross-examiners at the South African Bar. He could have been expected to demolish the 79-year-old witness, which would have been damaging to the authority of the presidential office.
Mandela was clearly anxious to surrender as little ground as possible where the executive was concerned and – while maintaining his respect for the court – make it clear that he considered the decision to cross- examine him on his affidavit an affront to his office.
He did so bluntly, but with an underlying subtlety – cleverly directing his ire towards Luyt, rather than the judge whose decision had placed him in the box: “I never imagined Dr Luyt would be so insensitive, ungraceful and disrespectful as to say I was telling lies when I signed my affidavit.”
Advocates, with the support of the Bench, are used to enjoying complete domination of witnesses when they get them on to the stand and, admittedly, there is some justification for this in terms of courtroom procedure. But, against that, Judge de Villiers might have done well to reflect that “when you ride a tiger…”.
As it was, there was something admirable about the old president as he repeatedly unsettled Maritz’s cross- examination, barking at the distinguished counsel to “speak up” and reproving him for repetition. “I hope Mr Maritz is not going to ask too many questions. I have already answered … Mr Maritz, you go on like a gramophone.”
He did not limit his jibes to opposing counsel. At one point he interrupted himself to suggest to Judge de Villiers that he would be able to attend to other matters of state more expeditiously if the court would sit from 8am to 6.30 pm – instead of the 10.30am to 4pm workday with which the judiciary indulges itself. The judge hurried to agree.
“Cross-examination is beyond any doubt the greatest legal engine ever invented for a discovery of the truth,” declaimed Judge se Villiers in his marathon judgment, in justification of the decision to subpoena Mandela.
It might equally be said that dignity is, beyond any doubt, the greatest attribute a head of state can have and the president demonstrated the truth of that in the Sarfu case.
l Although Judge de Villiers ruled in favour of Louis Luyt in the Sarfu case, it appears the matter will have to go to the Constitutional Court if he wants the judgment to become effective.
South Africa’s new Constitution says that any judgment in the high court on the constitutional validity of the conduct of the president is subject to confirmation by the Constitutional Court.
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