Mr Justice M de Klerk said he had found extenuating circumstances and believed the men should not hang. He spent over three hours giving detailed reasons for this in his judgement. However, he added that his two assessors – both civil servants – had disagreed with him and had the power to outvote him. He gave their reasons for this in a brief three-minute summation – and then pronounced the death sentence on three of the accused.
The assessors were L de Kock, a retired magistrate, and A Botha, a retired Department of Justice official. Legal sources last night said they knew of no previous capital case where the assessors had used their power to overrule the judge. Attorney Peter Harris said he was "astonished that the assessors should disregard the extensive and well-reasoned judgement. It is a cause of great concern," he said. The question now is whether the accused – three African National Congress guerrillas found guilty of murder and attempted murder and a fourth found guilty of attempted murder – will appeal. To do this they will have to change their attitude to the trial.
Until now, the four have refused to take part in the proceedings, claiming they were prisoners of war and could therefore not be tried in a civilian court. This led to a "silent" trial, with the accused even declining to lead evidence in mitigation – the only thing that could save them from death row. This was eventually done by lawyers instructed by the families of the accused men. They argued that the actions of the accused had to be seen against background of apartheid and the events of 1976 which led to their leaving the country.
The judge accepted this evidence, only to be overruled by his assessors in relation to three of the four. Obed Jabu Masina, 38; Frans TingTing Masango, 30; and Neo Griffith Potsane, 28, were last month found guilty of the murders of Constable Sinki Yuma of Mamelodi in 1985, Detective-Sergeant Orphan "Hlubi" Chapi of Soweto in 1978 and Swazi national David Lukhele and his sister-in-law, Elizabeth Busiswe Dludlu, both of Mamelodi, in 1986. The fourth accused, Joseph Makhura, 29, was convicted of attempted murder in connection with the planting of limpet mines in Silverton and Soshanguve, near Pretoria, in July 1986. He was sentenced to an effective 25 years' imprisonment a sentence also imposed on his coaccused. Charges of treason against all four was earlier withdrawn by the state.
After sentence had been passed, emotions ran high in the Delmas Circuit Court. There were murmurs of anger and some people in the gallery wept as policemen monitoring proceedings dragged the four down the stairs to cells below the courtroom. The four showed no remorse or fear. Earlier, Masina told the court: "If it were ' not for apartheid, we would be out there with our brothers and sisters, black and white.". And earlier this week, the four told the judge: "We know that this court may sentence us to death. If this happens, so be it! We love life, but we love our people and our country even more. If we are hanged, our death will not be in vain." Masina, who spoke on behalf of the other three men, added: ''Those who come after us will undoubtedly complete our mission in life; to create a just and democratic South Africa which belongs to all who live in it.
In explaining the deeds which led to their convictions, Masina said: 'The actions which we undertook were not for private gain, nor prompted by revenge "Our actions took place in an escalating war between those committed to apartheid and those who seek its eradication and the establishment of a society which is not based on racial superiority, divided by hatred and ruled by fear."
This article originally appeared in the Weekly Mail.