Adv Denis Kuny, who has died in Johannesburg at the age of 89, was an unsung hero of the legal fraternity during the struggle period and probably defended more anti-apartheid activists than any other advocate in SA.
He also, in 1962, helped Nelson Mandela, dubbed “the Black Pimpernel”, evade the security police who were scouring the country for him after he’d returned from undergoing military training and drumming up support for the armed struggle in Africa.
Mandela needed to go to Ladysmith in Natal to brief ANC underground structures, and asked SA Communist Party leader Joe Slovo to find someone sympathetic and reliable to get him there safely. Slovo asked his friend Kuny.
Dressed in his fanciest suit and tie to look like a wealthy businessman, Kuny waited at a petrol garage in Yeoville in a car he’d borrowed from friend and colleague Arthur Chaskalson, because his own Ford Anglia was too much of a wreck.
At about midnight SACP activist Jack Hodgson arrived with Mandela, who, dressed in a chauffeur’s uniform and cap, got into the driver’s seat.
With Kuny in the back seat they set off. Kuny, who wasn’t involved in the liberation movement and had never met Mandela before, remembered they didn’t talk much.
Four hours later they arrived in Ladysmith. Mandela went to meet his comrades and Kuny headed back to Johannesburg.
He said the chances of being caught never occurred to him at the time.
A month later Mandela was playing chauffeur to another white man, Cecil Williams, when they were arrested at a roadblock in Howick.
The next time they saw each other was at a dinner function after Mandela’s release in 1990. He gave Kuny “a knowing look”.
Kuny was involved in many of the most high profile political trials during the struggle era, but most of his cases were fought in small towns in front of aggressive judges and recalcitrant prosecutors, who were determined to put opponents of apartheid away.
A lawyer of the highest quality, he turned his back on the vast wealth he could have made as a commercial silk to do these myriad, underpaid, underreported small cases in hostile environments where defeat was more likely than victory, because he believed they mattered.
“Had we not been there, I have little doubt there would have been many more convictions and much heavier sentences,” he later explained to the Legal Resource Centre’s oral history project.
“There were many convictions, but there were also acquittals and successes on appeal.”
Kuny was born in Kroonstad on March 8 1932, and moved to Johannesburg with his family when he was four. He grew up and went to school in Springs on the East Rand.
He wanted to be a medical doctor like his father Benjamin, whose family had moved to SA from Russia.
But after matriculating in 1948, he enrolled for a B.Com at the University of Witwatersrand, unsure whether to be an accountant or a lawyer.
He decided on law after spending his vacation working for his uncle who was an accountant, and hating every minute.
He decided on law after spending his vacation working for his uncle who was an accountant, and hating every minute.
After completing his B.Com, he did an LL.B. He was largely apolitical, unlike his Wits classmate and good friend Chaskalson, and had no idea so much of his life would be spent defending those involved in the struggle.
He was admitted to the bar as an advocate in February 1960. A month later came the Sharpeville massacre and his involvement in political cases began.
In his first big case he appeared as a junior counsel to Slovo in a riotous assemblies case in the high court.
On April 1 1961, a state of emergency was declared and there was a flood of people detained, charged, tried and imprisoned. Only a handful of advocates was prepared to take on these cases, which in the absence of legal aid paid little if anything.
Barely a year after becoming an advocate, Kuny found himself defending people charged with pass burning, demonstrations, riotous assemblies and assault, roped in by his wife Hillary whom he’d married in 1957 and who was secretary of the Defence and Aid Fund.
He defended members of the ANC, the PAC, the Communist Party and the Congress of Democrats, who were operating underground and whose activities were illegal.
Though he resisted attempts by these organisations to recruit him, he got sucked in to doing things both as a lawyer and personally that could have got him into serious trouble and in fact contributed to his early exit from the Rivonia trial in 1963, where he was defending Jimmy Kantor.
After the state prosecutor Percy Yutar accused him in court of being on the mailing list of the Communist Party, he was debriefed and another advocate took over.
Soon after the Rivonia trial came the trial of Bram Fischer, leader of the Rivonia defence team, for being a member of the Communist Party. Kuny was junior counsel for the defence led by Vernon Berrangé.
A key witness in the Fischer trial was Gerald Ludi, a police spy inside the Communist Party, whose evidence consisted of his reports to the police about meetings Kuny had been asked to attend but luckily had not.
“So I was kind of skirting with danger”, he said.
Barely a year after becoming an advocate, Kuny found himself defending people charged with pass burning, demonstrations, riotous assemblies and assault.
As a result of the Fischer trial he was identified by the security branch as a lawyer for the Communist Party, though never a communist or member of the party.
He did some “dubious things” which he wouldn’t talk about even years later. They didn’t seem dangerous at the time but had he been found out, they would have ended his career as a lawyer and his life in SA, he said.
He took on numerous cases defending comrades who had left the country for military training, come back and been arrested, broken banning orders and attended illegal gatherings.
In 1966 he was involved in a plethora of PAC trials, and in 1967 was a central figure on the defence team in the South West African Treason Trial in the Old Synagogue in Pretoria.
The year-long “Swapo trial” was historic with the defence questioning whether SA had the jurisdiction to try South West Africans for supposed offences committed in South West Africa, or that the 40 accused could be tried for treason against SA when they were not South African citizens or residents.
After this no more Swapo trials were held in SA.
Appeals to the international community by the defence team probably saved some of the accused from the gallows.
Herman Andimba Toivo ya Toivo was convicted and sentenced to 15 years on Robben Island. Kuny visited him in the newly independent Namibia in 1990 when he was a minister in the Swapo government.
Kuny defended many people fighting injustice and oppression in Swaziland, Botswana and Lesotho in the late 1960s, 1970s and 1980s, when cross border raids, bombings, assassinations and other kinds of overt political and military activities made them dangerous places for anti-apartheid lawyers like himself.
Documents subsequently came to light showing that Vlakplaas death squad commander Dirk Coetzee had been instructed to “take Kuny out” on his way to Botswana.
In 1990 he represented Coetzee before the Harms Commission, after he had blown the whistle on the existence of the death squad.
He was furious when the commission headed by judge Louis Harms trashed his evidence and found that no death squad existed.
One of their most famous victims was Kuny’s former attorney Griffiths Mxenge, who was assassinated by Almond Nofemela. Kuny represented Nofemela in a successful appeal against his death sentence.
He was the advocate for Nusas students arrested under the terrorism act in 1975. Their attorney Raymond Tucker wanted them to plead it out, deciding the state would win the case and it was better to plead guilty and get a minimum sentence for his clients.
Kuny looked at the papers and said he thought he could get them off, and he did.
In 1976 he defended a group of 14- and 15-year-old schoolchildren in Makhanda, charged with setting their classroom alight as a form of protest. Kuny got them acquitted.
He then defended Steve Biko, who was charged with defeating the ends of justice for allegedly advising witnesses in that case not to testify.
Kuny got an acquittal but never saw Biko again because months later he was killed in police custody. Kuny was tortured by the thought that had he not won that case, Biko might have lived.
In 1977 he unsuccessfully defended Tokyo Sexwale, who was sentenced to 18 years, but got Joe Gqabi off. Of all the clients Kuny defended, he had the highest praise for Gqabi as a “very impressive, knowledgeable and lovely man”. Gqabi went into exile in Zimbabwe, where he was assassinated by the security branch.
In 1982 he defended Barbara Hogan, who got 10 years after becoming the first woman in SA found guilty of high treason.
The same year he was part of the team that represented the family of Neil Aggett in the inquest after his torture and death in police custody.
In 1986 he took over the defence of Andrew Zondo from Ismail Mohamed who, Kuny told the LRC oral history project, “saw a death sentence sticking out a mile and didn’t want to go on with it”.
Kuny wanted to appeal against his death sentence but Zondo didn’t want him to. He put in a petition anyway, which was refused.
Kuny didn’t get the recognition he deserved because he avoided the limelight.
Kuny got an acquittal but never saw Biko again because months later he was killed in police custody. Kuny was tortured by the thought that had he not won that case, Biko might have lived.
Freedom fighters said he was the man they wanted in their corner. Not only was he a fine cross examiner who could argue points of law as well as points of fact with equal brilliance, but because he was doing it for them, not for his own ego.
He was a talented jazz pianist who played in some notable combos during his early years and could have been a professional.
When he became a senior counsel in 1983, he took his family to a steakhouse in Johannesburg to celebrate. There was a piano there which he started playing.
As always he looked slightly down and out. As somebody left the steakhouse he put down a R5 note saying: “I think you need it.”
Kuny is survived by three sons and his second wife Alison Scarr.
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