Ground­break­ing case that changed his­tory

Cape Argus - - Opinion - Michael Ba­graim

IWRITE as an at­tor­ney who has al­ways been in­ter­ested in court cases in­volv­ing pris­oner-of-war sta­tus. Dur­ing 1987, as a young at­tor­ney and hav­ing just opened a fledg­ling le­gal prac­tice, I be­came in­cred­i­bly in­ter­ested in a case State ver­sus Petane (Ref­er­ence 1988 (3) SA 51 CPD).

This case was ground­break­ing for many rea­sons, but in par­tic­u­lar be­cause Petane was ar­rested on charges of ter­ror­ism against the apartheid state. The de­fence raised by Mx­olisi Petane’s ad­vo­cate, Michael Do­nen, was a claim for pris­oner-of-war sta­tus.

The claim was unique, and cer­tainly an af­front and a ma­jor chal­lenge to the ma­chin­ery of the evil apartheid state. Do­nen bravely grabbed that brief to de­fend pris­oner Petane through­out the year.

Petane was a prin­ci­pled cadre and a man of his word. He re­fused to deny what he had done and strongly de­fended the rea­sons for the ne­ces­sity of his deeds.

Ably de­fended by Do­nen, Petane was able to push the lib­er­a­tion Strug­gle to an­other level. Many of the lawyers in South Africa were in awe of this bravely fought de­fence.

It should be noted that Do­nen took on this case for lit­tle or no re­ward, and much to the de­struc­tion of his own law prac­tice.

He knew how con­ser­va­tive the le­gal pro­fes­sion was, and he un­der­stood that tak­ing on a case of this na­ture would alien­ate many of the at­tor­neys who were brief­ing him and in­tended to brief him in the fu­ture.

De­spite this, Do­nen poured his heart and soul into this unique de­fence know­ing full well that he was tak­ing on the might of not only the iron-clad prose­cu­tion, but also the ju­di­ciary at the time.

Many years later, I be­friended Do­nen and was in­trigued to hear the in­side story and the prepa­ra­tion that went into the de­fence.

Sadly, I was never to meet the brave and prin­ci­pled Petane, who passed away last week.

South Africa should do more to study the story of Petane and his unique le­gal de­fence, and how the case laid the ground­work for the recog­ni­tion of the Strug­gle as be­ing not a ter­ror­ist strug­gle but a strug­gle for lib­er­a­tion.

Some of the in­ter­est­ing sto­ries of this case would fas­ci­nate the public who thirst for more information from the early days of the Strug­gle. For in­stance, Go­van Mbeki, who was the Umkhonto we Sizwe com­man­der-in-chief, was sup­posed to tes­tify in mit­i­ga­tion for Petane. Do­nen went to meet Mbeki in Port El­iz­a­beth.

Un­for­tu­nately, due to the enor­mous risks in­volved, it was de­cided not to ex­pose Mbeki to the cros­sex­am­i­na­tion.

His­tory tells us that Petane was able to avoid the death sen­tence due to this unique de­fence, and in fact went on to be­come the in­spec­tor-gen­eral of the SANDF.

The hard-and-fast friend­ship be­tween Do­nen and Petane con­tin­ued un­til Petane’s un­timely demise.

Do­nen qual­i­fied to be­come fam­ily of Petane when he was asked to speak in Petane’s place at his fa­ther’s fu­neral.

Do­nen and Petane went on to cel­e­brate the cir­cum­ci­sion of Petane’s son in Gugulethu last year, and Do­nen reg­u­larly met Petane and his wife.

I have been an avid lis­tener to many other in­ter­est­ing sto­ries about the pris­oner-of-war sta­tus de­fence, and I be­lieve that it is ap­pro­pri­ate for mod­ern-day schol­ars of the Strug­gle to in­ves­ti­gate Petane’s de­fence more fully.

As an aside, it is in­ter­est­ing to note that Ramesh Vassen, who was Petane’s at­tor­ney at the time, and Do­nen were friends and this re­la­tion­ship went from strength to strength be­cause of the Petane trial.

We have an in­cred­i­bly rich and in­ter­est­ing his­tory in South Africa, and we seem to have lost sight of some of those early prin­ci­pals which, in turn, led to our democ­racy.

ABLY DE­FENDED BY DO­NEN, PETANE WAS ABLE TO PUSH THE STRUG­GLE TO AN­OTHER LEVEL. MANY LAWYERS WERE IN AWE

PIC­TURE: ETIENNE CREUX

MAN OF HIS WORD: Ma­jor-Gen­eral Mx­olisi Petane de­fended the rea­sons for the ne­ces­sity of his deeds.

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