On Good Friday, I was looking through old copies of Work in Progress and the South African Labour Bulletin. These journals played a critical part in the political education of my generation and that of many other activists during the 1970s and 80s.
I was not being nostalgic, I was preparing some reading material for the Ndifuna Ukwazi seminar by Eddie Webster on The Rise of the Workers’ Movement in South Africa 1973-1994.
Then, instead I got a serious blast of nostalgia when a yellowing official-looking piece of paper made its way onto the office floor.
It was a letter from Major Danie Theron (Head: Victor Verster Maximum Prison) dated 22 August 1980 refusing Gavin Hayward, permission to visit me in prison.
Between May and December 1980, I was held with more than 60 other male detainees at Victor Verster Prison. During the period we engaged in hunger-strikes, political education, arguments, debates and built lasting comradeship.
1980 was also the first year of my relationship with Jack Lewis who was a banned person. He could not visit me.
In Victor Verster about 20 of us were segregated from other detainees because the security police branded us as “ringleaders”. Segregated detainees included Cassim Ally (a veteran Communist) Hennie Ferus ( a Labour Party leader and ANC member), Johnny Issel, Cecyl Esau, Ebrahim Patel, Usuf Chikte, Zunaid Dharsey, Richard Stevens and Achmad Cassiem.
Issel and Ferus recruited a number of us to the ANC. As the year progressed many were released. In August 1980, the majority of “ringleaders” were released. Seven of us remained. Our friends, families, lovers were distraught while we went on hunger-strike against our continued detention.
Jack then asked Gavin Hayward his housemate to apply for permission to visit me in prison. As the letter shows, the security police prevented the visit. Jack then started writing to me in prison. Two years ago, I found a box of prison letters that included our exchange of letters. Thelma Lewis his mother had saved them. These letters are a good record of prison, the times and an “unlawful” love affair conducted under the eyes of a censor.
Gavin Hayward was denied permission to visit and bring news from VictorJack. (Gavin became editor of Exit the oldest LGBT newspaper in the country in the late 1990s.) By October 1980, only Achmad Cassiem and I (who were then and still remain serious ideological opponents) were left behind.
Jack remains the closest family member and closest friend I have ever had.
This post contains:
- A note by Bruce Baigrie “Detainees have rights not privileges;
- Achmad Cassiem and Abdurrazack Achmat v Commanding Officer, Victor Verster Prison and Other – judgment;
- Letter from Major Danie Theron prison; and,
- An obituary of the late Dullah Omar.
Ndifuna Ukwazi is committed to discussing law in the context of politics, society and history.
Apologies for the nostalgia but hopefully you will attend Eddie Webster’s seminar or watch it when screened.
“Detainees have rights not privileges” – Justice Ernie Grosskopf in Achmad Cassiem and Abdurrazack Achmat v Commanding Officer, Victor Verster Prison and Others
Peoples’ Law Journal Case Note — Bruce Baigrie
During the 1980 student and worker revolts, Achmad Cassiem and Abdurrazack Achmat were detained at Victor Verster Prison in Paarl along with many other detainees such as the late Johnny Issel, Ebrahim Patel and Allie Parker. The two were the last of the Western Cape detainees to be released. In November 1980, Cassiem and Achmat refused to obey the commands of prison officials segregating them from newly arrived Black African detainees from the Northern Transvaal.
As punishment, the prison authorities removed certain rights and “privileges” including family visits, the sending or receipt of letters. Cassiem and Achmat were locked up in individual cells, measuring 2,1 metres by 2,4 metres for 23 out of 24 hours without reading matter (save the Koran), letters, radios or visits. Their lawyer A.M. “Dullah” Omar brought an urgent interdict against the Commanding Officer of Victor Verster Prison, Major Danie Theron.
Responding in Court, the Prison authorities cited the section 22 (2) of the Prisons Act 8 of 1959. Cassiem and Achmat’s lawyers argued that because they were in “preventative detention”, they had the same rights as awaiting-trial prisoners. This could be read from the Internal Security Act, section 82 of the Prisons Act and the Government Notice 1696.
Judge Ernie Grosskopf found that Cassiem and Achmat’s rights were unlawfully curtailed and that the applicants were entitled to seek redress from the Court. He cited the 1912 case of Whittaker v Roos and Bateman, where (then) Chief Justice Innes held:
The action of the Governor was a wrongful and intentional interference with those absolute natural rights relating to personality, to which every man is entitled. … [Prison Officials] contended that the plaintiffs, once in prison, could claim only such rights as the Ordinance and the regulations conferred. But the directly opposite view is surely the correct one. They were entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed. They could claim immunity from punishment in the shape of illegal treatment, or in the guise of infringement of their liberty not warranted by the regulations or necessitated for purposes of gaol discipline and administration.Whittaker v Roos and Bateman
Even though this happened very rarely, this case illustrates that even under apartheid, some judges such as Justice Ernie Grosskopf had the courage to defend freedom. In the case of Cassiem and Achmat he held:
My view is that awaiting-trial prisoners and detainees under the Internal Security Act are entitled to certain rights recognised by s 82 of the Prisons Act and Government Notice 1696 (supra ). These include the rights to write and receive letters, to receive visits and to procure for themselves from outside the prison and receive articles including food, bedding, clothing and literature. Although these rights are subject to various limitations and restrictions, and to regulation by the authorities, they nevertheless exist and can be enforced. (emphasis added)… I do not accept the respondents’ contention that these rights are privileges or indulgences which may be granted or withdrawn at the unfettered discretion of the Commissioner in terms of s 22 (2) of the Prisons Act.
The case became moot because Cassiem and Achmat were released on 9th December 1980 and only the issue of costs was argued. As a consequence, Justice Grosskopf ordered the government to pay the costs of the application. Judge Ernie Grosskopf is still alive and now more than 90 years old but his judgment ensured that detainees had more rights than before 1980.
Bruce Baigrie Ndifuna Ukwazi Junior Researcher (11 April 2012)
“Your request has been referred to the Security Police”: A letter from prison (1980)
Dullah Omar — The Peoples’ Lawyer
2004-03-13 08:13 — news24 reproduced
Johannesburg – Dullah Omar, christened Abdullah Mohamed, was born in Cape Town on May 26, 1934.
He attended Trafalgar High School where his political awareness was formed under the influence of his English master, Ben Kies, who went on to become an advocate of note.
Omar also took up law, and in 1957 completed a BA LLB through the University of Cape Town.
At the time that the common voters’ roll was being carved into groups by the National Party government, Omar was a student member of the Unity Movement fighting the first apartheid elections on 1958 on a non-participation platform. He remained a member of the Unity Movement until his “defection” to the United Democratic Front in 1983.
He set up his own law practice in 1960 because it was difficult for a black attorney to find a position with a law firm then.
For his office in Caledon Street, Omar had to apply annually for a Group Areas permit until the Act was applied even more strictly and he was forced to move his practice to Woodstock.
He became the PAC’s official attorney, and also forged close links with members of the Congress movement, making repeated trips to Robben Island to meet and act for the leadership incarcerated there.
Prepared to take on political trials
He was one of the few attorneys who was prepared to take on the political trials which were becoming increasingly common.
In the early 1960s he defended accused in the Poqo trials, and in the 1970s acted for the Black Peoples’ Convention and the SA Students’ Organisation.
His passport was withdrawn in September 1981, three days before he was to leave for London to begin study for a Master of Law degree.
An unrestricted passport was only restored to him in August 1990, when he was invited to address the convention of the American Bar Association in Chicago.
Omar became an advocate in 1982.
He began to work with the United Democratic Front after its formation in 1983, and was detained repeatedly in 1985, then served with a banning order that restricted him to the Wynberg magisterial district and forbade him from taking part in UDF activities or attending gatherings where the Government was criticised.
In July 1987 he was elected chairman of the UDF in the Western Cape, and warned against trying to work with the system to bring about a democratic society.
Trying to cross the river
“To think you can use the Tricameral system in this fashion is like trying to cross the river on the back of a crocodile,” he said.
In the same year he was elected vice president of the National Association of Democratic Lawyers, an organisation he helped form.
In 1989 ill health – he had suffered several heart attacks since 1979 – forced him to step down as regional chairman of the UDF and he took on the less demanding post of vice president.
In that year he also became a widely-quoted spokesman for jailed ANC leader Nelson Mandela in the months leading up to his release.
In 1990 he was appointed director of the University of the Western Cape’s newly-established Community Law Centre, which aimed to research human rights, do some human rights litigation and run community education programmes.
In the same year the Harms Commission heard evidence of a Civil Co-operation Bureau plot to assassinate him, firstly by planning to shoot him and then by substituting his heart pills with poison tablets. Omar subsequently met the agent who was to have killed him, and told him he had “no hard feelings”.
Elected to national executive
Omar was elected to the Western Cape regional executive of the African National Congress in 1990, and in July 1991 to the ANC’s national executive as well.
He was a member of the movement’s constitutional committee, and was a member of the ANC negotiating team at the DF Malan talks in February 1991.
In 1991 he was appointed one of two regional commissioners in the Western Cape for the Human Rights Commission.
In 1994, Omar became the first Minister of Justice of the new democratic South Africa. He served the full five year term in that capacity in the Cabinet of President Nelson Mandela until June 1999, when he was appointed to the position of Minister of Transport by President Thabo Mbeki.
In July 1994 he became the first Cabinet Minister to be appointed as acting President of South Africa in the absence of the president and deputy presidents.
As Justice Minister he embarked upon a programme of institutional reform and piloted legislation to set up statutory bodies such as the Constitutional Court, Human Rights Commission and Office of the Public Protector.
Omar was also instrumental in setting up the new prosecution system headed by the National Director of Public Prosecutions, and developed the framework for the transformation of the administration of justice in a document entitled “Justice Vision 2000”.
As Transport Minister he focussed on completing institutional transformation, safety issues in respect of road, rail, sea and air, transformation of the mini-bus taxi industry, law enforcement and infrastructure development.
He married Farida (born Ally) with whom he had three children.