S. Africa Judge’s Power Questioned : Treason Case Defendants Seek Mistrial, Raise New Issue

Anti-apartheid activists on trial here for treason Monday asked the presiding judge to declare a mistrial on grounds that his dismissal of one of his two trial assistants effectively denies the defendants a fair hearing.

Arthur Chaskalson, head of the legal team for the 19 defendants, told Judge Kees van Dijkhorst that he did not have the power to dismiss Prof. W. A. Joubert, whom the judge described as strongly favoring the defense, and that he had further abused his authority by making the decision secretly, without consulting attorneys.

The situation is without precedent in South African law, and the defense is hoping that it will secure a ruling that recognizes, for the first time, the relevance of a judge’s own views in political cases.

The defendants’ practical concern is that with the dismissal of Joubert, a law professor active in the opposition Progressive Federal Party, they now face what they described as a “hostile” tribunal.

Joubert was one of the trial’s two assessors--individuals who, under South African law, help evaluate evidence and have an equal vote with the judge and the other assessors in deciding the defendants’ innocence or guilt.

Defense Strategy

The defense strategy in seeking a mistrial is simply that the prosecution would probably drop most, if not all, of the charges were a mistrial declared, rather than begin the whole case again.

The case, now in its 18th month, is a major political trial in South Africa. The prosecution has charged three top leaders of the United Democratic Front, a coalition of anti-apartheid groups, and community leaders from the Vaal River region south of Johannesburg with conspiring to overthrow the country’s white-led minority government with a series of protests in 1983 and 1984 that, the state contends, led to the start of political violence here in September, 1984. All the defendants have pleaded innocent; three of the original 22 defendants were acquitted after a year of testimony.

The defense is also demanding that Van Dijkhorst and the remaining assessor, W. F. Krugel, withdraw from the case, again declaring a mistrial, on grounds that they are politically biased against the anti-apartheid movement and in favor of the government.

Van Dijkhorst and Krugel both appear to “have formed opinions adverse to our case,” the defendants said in their application for a mistrial.

Krugel on Monday acknowledged that he is a member of the Afrikaner Broederbond, a secret society promoting the interests of the Dutch-descended Afrikaners, and as a government official had worked with the security police and helped to “liquidate” 15 anti-apartheid groups when they were banned a decade ago.

“We have seen the disappearance of the only member of the court who we believed was not hostile to us,” the defendants said. “We have been told that a person who signed (a United Democratic Front petition opposing a new constitution that excluded blacks) is not a fit member of the court that tries us. If this is so, we cannot accept that a member of the Broederbond and a judge who is seemingly hostile to us are fit to do so.”

Little Room to Maneuver

As he argued for a mistrial, Chaskalson left little room for either the judge or the prosecution to maneuver in order to save the state’s case. The dismissal of Joubert after he acknowledged signing the anti-government petition four years ago had rendered the case “a futile exercise,” Chaskalson said, because the fundamental rights of the defendants had been violated.

Van Dijkhorst, reacting angrily to Joubert’s charges that he had been ousted for his political views and his skepticism about the state’s charges, described the professor as “totally out of touch with factual matters and of the assessment of witnesses” and said he often found him dozing on the bench.

But Van Dijkhorst admitted that they had “sharp differences of opinion” on political issues. “I gained the impression that he totally associated himself with the defense,” Van Dijkhorst said of Joubert, whom he himself had appointed as an assessor in the case.

In political developments, D. J. Louis Nel, the former deputy minister for information, announced that he is quitting politics and will not run for reelection May 6 as a member of Parliament from the ruling National Party.

Nel withdrew as a Nationalist candidate from Pretoria after newspaper reports that he stood to make about $500,000 on the proposed sale of South African Embassy land in Tokyo to property developers. But Nel denied that he had been forced out, saying he wanted to devote more time to business affairs.

Dismissed From Cabinet

Nel had been dismissed from the Cabinet in November amid controversy over his handling of the difficult post.

Six people, meanwhile, were reported killed in the country’s continuing political violence, and 21 died in tribal fighting over the weekend.

Four blacks were killed and a fifth man was seriously injured, police said, when the pickup truck in which they were riding detonated a land mine near Barberton in eastern Transvaal province, close to the border with Swaziland.

The government has blamed guerrillas of the African National Congress for a number of land mine explosions in the area.

A prominent Zulu chief, Mboniseni Mazibukoo, a member of the Inkatha political movement of Chief Mangosuthu Gatsha Buthelezi, was shot to death while driving on a rural road with his wife. The murder appeared to be another political assassination in the increasingly bitter feud between Inkatha and the ANC.

Police said they shot and killed one person and seriously wounded two others when they opened fire at a crowd of about 2,000 blacks stoning cars near Port Shepstone in southern Natal province. The police gave no reason for the disturbance, and journalists are prohibited under South Africa’s emergency regulations from reporting details of unrest without official permission.

Nineteen people were killed in tribal fighting, apparently over land rights, between two Zulu clans near Tuguela Ferry in Natal.