Groundbreaking case that changed history
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
MAN OF HIS WORD: Major-General Mxolisi Petane defended the reasons for the necessity of his deeds.