Legality of evil: Robert Sobukwe and the apartheid legal order

The following is a speech delivered to commemorate the 45th anniversary of the death of Robert Mangaliso Sobukwe. 

Tonight’s lecture is titled The Legality of Evil: Robert Sobukwe and the Apartheid Legal Order. I will speak about Robert Sobukwe and the apartheid legal order. Not his politics. There is enough material on that topic. I do not claim to exhaust the subject of Sobukwe’s place within the apartheid legal order. I promise only to make some exploratory themes which are missing from today’s recollections of Sobukwe’s life. Even that promise may turn out to be extravagant. Indeed, more illustrious writers have written about Sobukwe, his life, his beliefs and his legacy. Mine is a limited part of his life. This is important because it shaped who he became, and he in turn shaped the system, exposing its excesses, immoralities and depravities. We owe at least one provision in our Bill of Rights to Sobukwe, namely Section 36 of the Constitution, which requires that any law passed for the purpose of limiting the rights and the Bill of Rights should first and foremost be of general application. 

The immorality of the apartheid legal order was exposed by its desire to create a law for one man, Sobukwe. 

I am running ahead of myself. Let me start at the beginning. On 23 March 1960 Robert Sobukwe and 22 other accused were charged before the magistrate’s court in the District of Johannesburg with two charges. Acting in breach of Section 2(a) of the Criminal Law Amendment Act, No 8 of 1953 — Section 2(a) of that law made it a criminal offence to advise, encourage, incite, command, aid or procure any other person or persons in general “to commit an offence by way of protest against a law or in support of any campaign against any law, or in support of any campaign for the repeal or modification of any law or the variation or limitation of the application or administration of any law”. In effect, it was an offence to campaign for the change of a law. This amendment was apartheid’s response to the defiance campaign of 1952. At this campaign there was agitation, spearheaded by the ANC, for the repeal of the pass laws.  

A person found guilty under Section 2(a) of the Criminal Law Amendment Act of 1953 could be imprisoned for a maximum period of five years. They could also be whipped for 10 strokes. 

The charge sheet listed a second offence. Sobukwe, the state alleged, was also guilty of violating Section 15 of Act, No 67 of 1952. The title of that law was  “Natives (abolition of passes and co-ordination of documents)”. Its purpose was to provide for the issue of reference books to Natives. Section 2 of that Act entitled the Minister of Native Affairs to prescribe reference books for any Native who has attained the age of 16 years and is resident in a native area or an urban area. Once issued with a reference book, commonly referred to as a “pass”, a Native was required to carry the document and to produce it upon demand by government officials. 

Section 15 provided that a Native who is not in possession of a reference book that has been issued to him under the Act, or who fails or refuses to produce it on demand, or falsifies the reference book, or claims that a reference book of a different person is his or her own, or allows another person to use their own reference book shall be guilty of an offence. Once convicted, such Native person could be imprisoned for a month and if they are a repeat offender, the sentence could be 6 months. 

At the time he was charged, Sobukwe was without formal employment. He had resigned his position as an assistant in Bantu languages at Wits University on 20 March, finding it impossible to balance the competing demands on his time. He had decided to devote his time to the liberation of African people from apartheid. He was the president and founder of the Pan Africanist Congress. In 1966, at the initiative of Peter Raboroko, the PAC added Azania to its repertoire of struggle. It would be called the PAC of Azania. 

The case against Sobukwe did not proceed on 23 March 1960. The Prosecutor asked for a postponement to 26 March. When the accused appeared on 26 March, Sobukwe applied for permission to attend the funeral of those killed at Sharpeville on 21 March 1960, which was in Vereeniging. This was permitted. 

The trial eventually started on 4 April 1960. On that day, the names of Robert Sobukwe, Potlako Leballo, Selby Ngendane, Lennox Mlonzi, Rozette Ndziba, Jacob Nyaose, Zephania Mothopeng, John Walaza, Daniel Khunou, Wellington Rangaka, John Makgete, Raphael Tshabalala, John Lengana, Josias Madzunya, Solomon Mathopa, Zacharia Mtunzi, Abraham Mogale, Abe Kgare, James Thamae, Johannes Phashe, Lucas Matlou, George Ndhlovu, Joshua Magabe, George Siwisa and Lancelot Makgoti were called in as accused No 1 to No 23. Now Sobukwe’s relationship with the law was that of an accused, no longer its chief defier. 

The charges were for not carrying their own passes on 21 March 1960 and as “ringleaders” for inciting others to defy the pass laws. Almost immediately after the trial had commenced, Sobukwe took charge. Standing up, he announced the intention of the accused 

“Your Worship without impugning your personal integrity and honour we refuse to plead. Because our contention is that the law under which we are charged is a law made exclusively by the white man, specifically for the oppression and suppression of the blacks, and the officers who administer that law are themselves white, and in this whole drama only the accused are black and we don’t feel that justice can be done under these circumstances and we therefore refuse to plead.” 

The magistrate, Mr JK du Plessis cut him short, asking, “Are you now speaking for all the accused when you say that you refuse to plead?” Sobukwe replied, “I refuse to plead, your Worship.” The magistrate put an end to the exchange. “Well, in that case, the court must enter a plea of not guilty to both the main and alternative charges by all the accused. Do you understand?” Sobukwe responded, “I understand, your Worship.”

The first witness called by the state was Daniel Majuta, described as “a Bantu detective constable”, attached to the security branch, stationed in Johannesburg. He had attended meetings of the PAC, taken notes at those meetings and spied on behalf of the government. And so was the second witness, Solomon Mdunga, another “Bantu constable in the South African Police, attached to the security staff”. His duties also included attending meetings of political organisations, taking verbatim notes of what transpired at those meetings and reporting to the government. A third constable, Gabriel Ramaboya, was also called. And like the previous two he too had attended meetings of the PAC, meticulously making notes of the discussions and reporting to his superiors. 

The accused did not appoint a lawyer. Their approach, underpinned by the slogan “no bail, no defence, no fine”, was to surrender for arrest. They believed they could collapse the entire pass law system by filling the prisons with pass law accused. 

As the person leading the defence, Sobukwe would ask the questions to each of the state witnesses before the other accused asked their own. Sobukwe did a form of cross-examination with varied degrees of effectiveness. 

For the evidence of the accused, Sobukwe made a statement from the dock. Until this moment, none of the political trialists had resorted to this method – turning the tables on the state … making the state defend apartheid, rather than the accused explain their conduct. Sobukwe reminded the Magistrate: 

“Your Worship you will remember that when the case began, we refused to plead because we felt no moral obligation whatsoever to obey the laws which are made by whites and are administered by whites for an unjust law cannot be applied justly. We believe in one race only — the human race to which we all belong. The history of the human race is a long history of struggle against all restrictions, physical, mental and spiritual, and would have betrayed the human race if we had not done our share.” 

The magistrate could not interrupt Sobukwe. He was in his stride. “Briefly put, your Worship,” he continued “our organisation, the PAC, aims at the complete overthrow of white domination.”. It was the prosecutor who was feeling the pressure from the sheer power of the speech. He would object: “Your Worship, the accused should not read from the notes that he prepared.” Yet Sobukwe’s response was reflective of his generally calm demeanour throughout the trial — even in the ultimate theatre of the apartheid legal system, the court, he would retain his thoughtfulness and morality in his position. 

“Your Worship, I shall put the notes aside if that is the feeling of the crown.” Then he proceeded: “To repeat myself,” Sobukwe stressed, “our organisation aims at the overthrow of white domination, and the establishment of a non-racial democracy in South Africa.” It is the PAC’s historical role, he continued “to contribute to the establishment of a united states of Africa. In the language of the movement the United States of Africa will stretch from Cape to Cairo, Morocco to Madagascar”. The PAC, he pressed “represents thinking on a continental level”. They stand for a government of Africans by Africans for the Africans “with everybody who owes his allegiance to the continent of Africa and is prepared to accept the democratic rule of an African majority being regarded as an African”. 

Sobukwe prepared to answer questions from the prosecutor. “You told us in your evidence that on 8 November 1958 you seceded from the ANC. Why did you secede from this organisation?” Sobukwe was forthright. The reason for the secession, he noted, was because of the adoption of the Freedom Charter which stood for multiracialism which the PAC condemns because it implies “transfer of the prejudices and the bigotry that applies in the present society to a new society and that in effect means racism multiplied”. 

From the PAC’s contention, the land belongs to African people, not on the basis of slavery and mastership or dispossessor and the dispossessed. “Is that true,” the prosecutor asked incredulously. “Yes,” Sobukwe replied. “Who are the slaves that you are referring to?” Sobukwe’s response was clear: “The slaves are the Africans and the masters are the white people.” As this exchange took place there was silence in the courtroom. The magistrate had reclined in his seat, no longer interjecting. 

When the judgment came on 4 May, it was perhaps unsurprising. The evidence of all the witnesses for the state was accepted. And the evidence from the defence was rejected. In summarising his conclusions, the magistrate stated: 

“The only question remaining to be dealt with is whether you incited or encouraged the Native people to contravene those provisions of the pass law by way of protest or in support of a campaign for the repeal or modification of that law or the variation or limitation of the application or administration of that law.”

He was, in his words, without any doubt that a protest to change the law — no matter how unfair — was a crime. The leaders of the PAC, by their speeches at public meetings, had exerted their followers to support the campaign and thus committed the offence of incitement. It was clear that the PAC had taken a decision to leave their passes at home, to surrender themselves for arrest, under their slogan “no bail, no defence, no fine”. Such slogans aroused the passions of the masses, to follow their leaders in the PAC. 

Only four of the 23 accused were acquitted: John Walaza, Joshua Machaba, Lancelot Makgoti and John Makgete. Although Madzunya had been expelled from the PAC on 1 March 1960, he was found guilty of the charges. Sobukwe, long perceived by the state as the prime mover behind the Sharpeville protests, was sentenced to three years imprisonment. The remaining 18 accused were sentenced to between 18 months and two years in prison. 

The slogan of the PAC, “no bail, no defence, no fine”, also meant that there would be no appeals. But, in fact, appeals were submitted. While no attorneys were retained for the trial, one was hired for the appeal, Mr SSA Sikakane. Advocate Jack Unterhalter SC represented Sobukwe and the others in the appeal. The appeal was heard in the then Transvaal Provincial Division of the Supreme Court and dismissed on 8 November 1960. 

Although the appeal was pending, Sobukwe had in fact begun the life of a prisoner shortly after the sentencing. In those days, it was not unusual for a convicted prisoner to commence their sentence while the appeal process was taking place. With the handing down of the sentence on 4 May 1960, Sobukwe’s relationship with the apartheid legal system was transformed from accused to convict and prisoner. He was taken to the Johannesburg prison notorious for the incarceration of political detainees known as No 4 The Fort – today we know this to be the place which houses our Constitutional Hill.

How would the system treat him, now as prisoner? At The Fort the harshness, the brutality and the hostility began all over again. Although his jailers had no control over his ideas, they had total control over his body. He would exchange his clothes for prison uniform which was a pair of short pants, a khaki shirt and a jersey. No shoes. Later on, sandals, without socks, were given to him. They shaved his head. No. They wouldn’t touch him. In fact, they asked another prisoner to do so. He used a razor blade with “a little water and soap, and often leaving the scraped head cut and bleeding”. They must have enjoyed the cruel spectacle. Finally able to insult him, spit on him, and show him they are his boss. 

Although The Fort incarcerated political prisoners, there were common criminals too. In their company, Sobukwe found himself at an unfamiliar place. He would be at the receiving end of their maltreatment, no doubt eager to please the white prison authorities. He noted that one of his responsibilities was administering political education to the criminal prisoners that he found at The Fort. In fact, one prisoner would later recall the power of the prof’s teachings in being proud of who you are, and how this helped him after his release from prison to reform himself from the life of criminality and banditry into a responsible father for his family. 

Sobukwe served the balance of his sentence at Pretoria Central. Their paths crossed, once again, with Nelson Mandela who was serving a five-year sentence. Sobukwe was due to be released from Pretoria Central on 3 May 1963, having completed the three-year sentence. But this did not happen. Instead, on 1 May 1963 an extraordinary thing happened. The Minister of Justice, Joubert Pelser, the Prime Minister Hendrik Verwoerd, and Charles Swart, the state president had played a role in piloting a new law, which was published in the Extraordinary Government Gazette of 2 May 1963, to amend the Suppression of Communism Act, the core of that law was contained in section 4. It was a long section, but it is worth recalling it in full: 

“Notwithstanding anything to the contrary in any law contained, the Minister may, if he is satisfied that any person serving any sentence of imprisonment imposed under the provisions of this Act or this Act as applied by any other law or the Public Safety Act, 1953, or the Criminal Law Amendment Act, 1953, or the Riotous Assemblies Act, 1956 or Section 21 of the General Law Amendment Act, 1962, is likely to advocate, advise, defend or encourage the achievement of any of the objects of communism, by notice under paragraph a) prohibit such person from absenting himself, after serving such sentence, from any place or area which is or is within a prison as defined in Section 1 of the Prisons Act, 1959, and a copy of the notice certified by the Secretary for Justice or any other officer acting under his authority to be a true copy shall be deemed to be a warrant referred to in paragraph (e) of subsection (2) of Section 27 of the Prisons Act, 1959, and the person to whom the notice applies shall, subject to such conditions as the Minister may from time to time determine be detained in custody in such place or area for such period as the notice may be in force.”

The effect of this law was clear. The Minister of Justice, at the time BJ Vorster, had the power to extend the sentence of a prisoner, falling into these categories, notwithstanding the sentence imposed by a court. Although the law purported to be general in its scope of application, it was a known fact that its object was the continued incarceration of Sobukwe, hence Section 4 was referred to as the “Sobukwe clause”. This law in fact confirmed Sobukwe’s standing as a political prisoner — a prisoner who was in prison, not because a court had pronounced him guilty of a crime, but because the political establishment had considered him a political risk. 

There was widespread condemnation of the law. The Spectator of London labelled the law simply as “barbarism”, stating that, “It is difficult to imagine a more refined form of torture than to wait until a man is within days of completing a long prison sentence and then announce that he is not going to be released after all, but will be kept in jail indefinitely.

On 1 May 1963, indeed Vorster announced: “The cabinet has decided that Robert Mangaliso Sobukwe, whose prison sentence expires on 3 May 1963, will be detained under the Suppression of Communism Act, of 1950, as amended by the General Law Amendment Bill which has just been passed by parliament.”

Sobukwe, however, was no longer in Pretoria. He had been secretly taken to Robben Island. AB Ngcobo, an executive member of the PAC, told Sobukwe’s biographer Benjamin Pogrund that Sobukwe’s intention was to organise for the PAC as soon as he was let out. But he had a premonition that something was afoot and that he would not be allowed out of prison. This came to pass, as on 23 April 1963, he was secretly spirited out of Pretoria to Robben Island. No announcements were made until Vorster’s public statement which confirmed the continued incarceration of Sobukwe. 

Despite being a prisoner, prison officials still felt the need to expand their control over Sobukwe’s activities. In December 1963, a visit from Ernest Sobukwe, his elder brother, and also a reverend, was permitted by the prison authorities. Yet in January 1964 two visits from Benjamin Pogrund were denied. And so was the request for an interview by Mr MT Moerane of The World newspaper. 

As a prisoner, the State’s attitude towards Sobukwe remained ambivalent. For example, in one month Benjamin Pogrund was granted two visitation privileges on 3 and 21 April 1964. In that visit, Pogrund learnt that the prison authorities had censored subscriptions which he had arranged for Sobukwe in respect of the London newspaper known as The Observer. But there was denial from the prison authorities. While they were willing to grant Mr Pogrund visitation rights, the prison authorities at first inexplicably refused the same privilege to Sobukwe’s wife, Veronica, or as the prof called her, Zodwa. A letter of 3 June 1964 from Veronica making an “application” to visit her husband was turned down with no reason other than the curt reply, “The minister is not prepared to grant her request.” 

This attitude is also evident in the approach of the authorities to other visits. Father Flexmore, a priest, had applied to visit Sobukwe on 14 June 1964 for religious purposes. First it was indicated that there would be no objection to the visit but there were later objections from the police. The visit was cancelled. Reverend Storey the chaplain of the Methodist Church was, however, granted the right to visit on 21 June 1964. Despite Mrs Sobukwe having been informed that her visit would be denied, a month later in July 1964, the government changed its position. Now, Mrs Veronica Sobukwe could visit her husband “thrice weekly during a period of 28 days as from the 23^rd July, 1964”. No explanation was forthcoming why the visit had first been declined and why it was granted subject to conditions. 

Sobukwe had no control over his physical health either. This was under the control of the magistrate. When the district surgeon Dr van Bergen arranged, presumably in discussion with Sobukwe, a visit by a dentist, the magistrate was furious, writing to the Secretary of Justice, on 28 July 1964: “I may mention that I was not informed that the restricted person needed dental care. I did not therefore authorise the dentist’s visit to Robben Island. This was done by the district surgeon on his own initiative.” 

The Department of Justice would later relent, confirming that the granting of a permit to the specialist concerned to visit Sobukwe “is a matter that rests in your discretion”. What that meant was that it was not the opinion of the doctors that mattered but that of the police and the magistrates. They could overrule the doctors as to the desirability of a specialist physician or dentist visiting Sobukwe. 

By December 1964, Veronica had learnt the ways of the Robben Island system. Her visits to her husband during that period experienced less hassles than the July visit. But she was still warned, on the advice of the intelligence services, that her visits would be limited to 3 times a week during the period 31 December 1964 to 22 January 1965. Earlier correspondence shows that the police had considered instructing her that she could not sleep at Robben Island because there were no such facilities. But it appears that this was later revoked. Sobukwe, it must be recalled, was not an ordinary prisoner. He had a separate prison facility where he was kept alone. His company were the prison guards and the prison dogs that barked menacingly and incessantly. 

Sobukwe had learnt about the law of the prison. There was the written law of the country, even for an apartheid system whose laws were by definition “obnoxious”, certain fundamental protections were afforded to prisoners. But those were merely the written, official laws. What in fact had transpired was that these laws could be broken arbitrarily, at the discretion of apartheid officials and their magistrates. 

An isolated prisoner, far from the media, legal institutions, parliamentary enquiries, is no match for the system. The system was also fighting a total war. By denying him reading material, the prison guards could diminish his intellectual faculties. By arbitrarily curtailing visitation rights by his wife, they could damage his emotional wellbeing. In controlling access to physicians and dentists, the authorities could debilitate his physical wellbeing and by restricting the visits of the priests, the prison authorities could destroy his spirit. These were the laws of the prison, often operating in unofficial, yet insidious and distressingly damaging, ways. 

Sobukwe’s story was now no longer only a matter of law. It was also a matter of politics. Politicians in opposition to the government began calling for his release. Mrs Helen Suzman was elected to the House of Assembly under the ticket of the United Party representing the constituency of Houghton in Johannesburg. Because of the United Party’s support for the Separate Amenities Act of 1953, designed to enforce petty apartheid, Mrs Suzman resigned to form the Progressive Party, which espoused liberal ideals. 

By 1964, Mrs Suzman was still a member of parliament. She had taken a keen interest in the imprisonment of Sobukwe, and began a campaign in parliament to call for his release. But unlike Sobukwe’s earlier encounters with the law, inside a court and in prison, Suzman’s campaigns sought to engage a different legal institution within the apartheid architecture, namely Parliament. 

If the executive unfairly suppressed Sobukwe, and the judiciary had refused to intervene, could parliament perhaps open a new avenue to champion the rights of Sobukwe? On 7 February 1964, Mrs Suzman began her campaign. The question pertained to a difficult subject for Sobukwe, one that had caused him much anxiety and reflection. Mrs Suzman asked the Minister of Justice: “Whether the person detained on Robben Island in terms of Section 4 of the General Law Amendment Act, 1963, has applied for an exit permit for himself and his family; and if so, whether the application has been granted.” An exit permit was a one-way ticket out of South Africa. If granted, it could mean that Sobukwe would lose his rights to be a citizen of South Africa. 

As it turned out in that Parliamentary exchange of 7 February 1964, Sobukwe had applied for an exit permit on 3 February 1964. Whether or not he intended to lose his citizenship could be a matter of conjecture. But what is clear is that the act of incarceration in the hands of the politicians had rendered his stay intolerable and he was willing to accept an exit permit out of South Africa. 

In 1965, a fresh campaign began. Still driven by Helen Suzman, the focus was the direct confrontation with the Minister of Justice in the hallowed chambers of parliament. The campaign had international dimensions too. On 19 April 1965 Mr AB Ngcobo, a member of the executive committee of the PAC in exile, delivered an address at the United Nations General Assembly to the Special Committee on the policies of apartheid. There he spoke of Sobukwe as the “national leader of our people” confined to Robben Island Prison under clause 4 of the General Law Amendment Act of 1963”. Ngcobo brought the hypocrisy of the apartheid legal system to the fore. It was the police who opened “fire at unarmed people in Sharpeville and Langa, where there were brutal massacres”. Yet Sobukwe, the leader of the dead, was “the only man who has been held and imprisoned without trial under [the Sobukwe] clause”, which imprisonment would last until “this side of eternity”. “Mr Chairman, Sir,” he urged, “my petition is that this man must be set free.”

Although the speech received universal acclaim, at home the National Party remained unmoved. On 3 June 1965, Mrs Suzman astonished the National Party government when she directly challenged them on the imprisonment of Robert Sobukwe. Until then, the generally held view within the white conservative population was that the government was taking necessary steps to curb the possible spread of communism and the spirit of revolution which threatened white interests. Suzman began by attacking the apartheid law which entitled the police to hold people for extended periods of time in detention without trial. One person was held for 19 months. Another for 18. And then Stanley Mabizela of East London was held for 17 months. Nine men were held for 10 months. The government’s position was always that “the innocent have nothing to fear”. 

For Suzman, this was unacceptable as no one should be kept in prison “for months on end while the police try to build up a case against them”. Even when the courts acquitted them, the practice was to re-arrest them. 

Then Suzman shifted attention to her campaign for the release of Sobukwe. By then Sobukwe was in his third year of imprisonment on Robben Island; sixth year in total. Suzman explained that her disagreements with Sobukwe’s political views did not mean that Sobukwe could be kept in prison indefinitely: 

“It is true that he was the head of the PAC with whose political views, aims and objects I disagree entirely, but when the major trouble arose, the Poqo and other troubles which were identified with the PAC, Sobukwe had already been in jail, and I presume that if a man is on Robben Island he cannot cook up Poqo plots and therefore he can in no way be held responsible for that.”

Suzman’s simple plea, as she put it, was that “no man should be held after he has served his sentence for the crime of which he was duly convicted, unless he commits a crime again”. She demanded the minister to explain why Sobukwe was still in detention. There was no reply to the question. Instead, she was accused of being a “mouthpiece of communists”. The government also mumbled something about recidivism — that the law was necessary to stop people from re-offending. And the minister would not typically abuse his powers. So, if a person had been denied release from incarceration under this law, the minister most likely got it right, was the argument. 

The government would simply not release Sobukwe. Suzman’s questions in parliament and Ngcobo’s speech at the United Nations served to increase the cause for the release of Sobukwe domestically and internationally. One of the impacts was a panic within the National Party government which opened the possibility of some selected journalists to visit Sobukwe. One of them was Die Burger which published a report accompanied by a picture of a healthy-looking Sobukwe in his prison cell standing next to a policeman on 20 August 1965. 

If the intention had been to portray an image of a fit and healthy Sobukwe, it was being undermined by medical science. Dr Barry Kaplan examined Sobukwe on 27 October 1965 on the recommendations of the district surgeon and with the consent of the police. He recommended an operation for possible prostate cancer. This could not be done on the island as a fully equipped theatre was necessary. Dr Kaplan recommended the transfer of Sobukwe to the New Somerset Hospital. Sobukwe had also not had new glasses since 1956 and Dr Kaplan recommended that his eyes should be tested again and new glasses prescribed. That operation was done at the Karl Bremer Hospital in January 1966. As The Star newspaper of 9 February 1966 reported, 

“Robert Sobukwe, who is confined to Robben Island, left the Karl Bremer Hospital yesterday after he had been operated on for a prostate gland. Members of the South African police brought him to hospital secretly about 14 days ago and he was registered as a patient under another name. His identity was so well guarded that no even the ward sister knew that one of South Africa’s best-known political prisoners was being treated there. Sobukwe did not disclose his identity to the staff.”

The operation did not appear to have improved his state of health. Veronica Sobukwe wrote a letter to the authorities on 5 March 1966 in which she protested that Sobukwe’s health had deteriorated. “When I saw my husband,” she noted “he was complaining also about other aspects of his health. He has developed rheumatism. His eyes and teeth were giving him trouble. His finger joints are swollen and disfigured.” These complaints, which were also echoed by Pogrund, were simply brushed aside by the authorities merely recording that, in their view, there was no justification to these complaints. 

The Minister of Justice sought to have the Criminal Law Amendment Act extended on 2 February 1966. Despite objections, the law was extended by another year. When the law returned to parliament in 1967, the Minister of Justice’s justification for the continued detention of Sobukwe stretched credulity. Sobukwe, he claimed, was not regarded as a prisoner. “We do not regard him as a prisoner; we regard and treat him as a detainee.” 

Concessions, he claimed, had been made in respect of the visits from his wife and his children. In the third extension of the law, on 12 June 1968, Suzman asked bluntly, “I am trying to establish why it is that this man is considered so dangerous.” Minister Pelser could only say that it was a matter of principle. He claimed to have considered everything and asked himself, “What is in the best interests of the country: that one man be detained under favourable circumstances or that the safety of the country be threatened by his being released? That is all that is involved. We can talk here about this matter for days and we shall not make any progress at all.”

It was in the 1969 debates that the government finally relented. But that was not before the now notorious remark of Pelser, when asked why Sobukwe should not simply be placed on house arrest, like the government had done in relation to Chief Albert Luthuli. And the government’s reply being that, “Compared to Sobukwe, Luthuli is a lightweight.” 

On 12 May 1969, the Minister of Justice finally withdrew the notices under which Sobukwe had been detailed at Robben Island. That set the scene for his eventual release. But even as he left Robben Island, the apartheid legal order refused to let him become a free man. Instead, a fresh notice was issued, this time under Section 9(1) of the Suppression of Communism Act of 1950. He would not be allowed to return to Johannesburg where he resided at the time of his arrest. He would serve a banishment order in the black township of Galeshewe in Kimberley. There would be strict conditions. He could not attend gatherings, “whether social, political or gathering of students assembled for the purposes of being instructed, trained or addressed by you”. He could not absent himself from his residential premises situated at No 6 Naledi Street, Galeshewe, Kimberley, “at any time except during the period commencing at 6 in the morning and ending at 6 in the afternoon”. He could not be in a Bantu hostel, Bantu compound, a factory, a newspaper office or a place of learning. 

A new chapter was, however, beginning, despite the restrictions. At Robben Island Sobukwe had completed a degree in economics in addition to his previous qualifications of a BA honours in languages. But now his banning orders prevented him from teaching. Yet the ban contained an exception in respect of court proceedings where he could appear as a witness or for purposes of doing the case on behalf of an accused person. This is how his journey to qualify as an attorney began. Sobukwe approached an attorney who practised from Royal Street at the Galeshewe Village in Kimberley, HZM Nzimande, to take him on as an articled clerk. 

Mr Nzimande was happy to accept Sobukwe as an articled clerk, provided that the security branch would grant the permission. That was the easy part. Mr Nzimande would not pay Sobukwe, despite being his clerk. As a university graduate, however, Sobukwe would be required to serve articles for three, rather than five years. An offer for lectureship and PhD studies at the University of Wisconsin did not materialise because although an exit permit was granted, the Minister of Justice refused to relax Sobukwe’s restrictions to enable him to leave the Magisterial District of Kimberley. A court application brought in this connection failed. 

That enabled Sobukwe to commence his articles of clerkship. His banning orders remained. He could not travel out of Galeshewe without permission. Nor could he receive visitors at home. A letter dated 24 September 1973 proves how absurd the situation was. He wrote to the magistrate of Kimberley requesting a permit to receive visitors at home other than the visitors specified in the notice. 

“My application is based on the fact that as an articled clerk, quite a number of people who find our offices closed over a weekend and/or find Mr Nzimande out, attempted to take their problems to me at home but because of my banning order I cannot receive them in the house.”

The banning order lapsed in 1974. But instead of scrapping it altogether, now that Sobukwe was on a new journey to become a lawyer, it was extended by another period of five years. By February 1975, Sobukwe had completed his articles. An application had to be made for his admission as an attorney. His Johannesburg correspondent attorney was Desire Mumsy Finca, the very first African female attorney in South Africa, who was in a partnership with Godfrey Pitje. But as he was still a banned person, a request to vary the terms of the banishment to enable him to practise as an attorney was made. 

The Minister of Justice at the time, Jimmy Kruger, granted the permission on 20 March 1975. On 13 June 1975 Sobukwe was admitted as an attorney. The judge who admitted Sobukwe as an attorney was Leona van den Heever, herself the very first female Judge of the supreme court of South Africa. 

Sobukwe did not stay long with Mr Nzimande after his qualification as an attorney. Indeed, by February 1976, he had opened his law firm RM Sobukwe Attorney, practising at 24 Tyson Road, Galeshewe, Kimberley. Sobukwe had now completed the full cycle. The law was once used against him. Now he could use it. But it was still a bad law drawn with tragedies and designed for discrimination. He would have to apply it. Mostly, he would need to find spaces within it so that he could do justice. He did not live long after that moment. In 1977, because of his deteriorating health, he could no longer fulfil his dream of using law to help his people. 

Today, in 1978, sadly he passed on. He was 53 years old when he died. Zodwa, his widow, lived to see the dawn of freedom. She died on 15 August 2018, from ill health. Some of his comrades from the trial went to play prominent roles in the PAC, inside South Africa and in exile. Potlako Leballo, for instance, died in London in 1986. Zephania Mothopeng, fondly remembered as “the lion of Azania”, was in and out of prison. He later became president of the PAC, but also died before his beloved Azania could be liberated. 

It is impossible to speculate about what the prof would have made of today’s crisis-ridden society. We can say, however, that he would have put humanity first. 

We remember him. 

Izwe lethu!