Six death row prisoners had their sentences overturned this week in two judgements that place serious question marks around the functioning of the legal system. In the retrial – called on purely procedural grounds – of the ”Queenstown 5”, a different court and a different judge reduced five death sentences to terms of less than two years imprisonment. A sixth accused died of TB while on death row.
In the second case Paulos Maseko was released from death row after the Appeal Court found that the original judge had acted in a seemingly prejudiced and partial manner. Three Appeal Court judges found that Acting Justice WJ Human had acted in such a way as to make it seem he had rejected Maseko’s evidence and closed his thoughts to the possible innocence of Maseko before the trial was concluded. Justice Human is the same judge who convicted the Sharpeville 6 on a ”necklacing” charge. Their death sentences have also been overturned.
In the original trial, Human had told Maseko, when the latter was giving evidence, to hurry up so the court could get the trial over and done with. In the East London trial an important precedent was set – one which is expected to have important implications for next week’s appeal in the ”Delmas treason trial”, which involves senior United Democratic Front leaders, and or ”necklace” cases in general. This arises from the decision of the judge to admit as extenuation the principle of deindividuation in relation to certain extreme forms of crowd behaviour. In the deindividuated state, the individual becomes an anonymous – therefore only partially responsible – part of a group.
Lawyers have pointed to the wide-ranging effects of the judgement – they believe it is likely to have legal implications for scores of people on death row convicted for their part in mob killings. ”The judgement has important implications for human rights law and it could indicate a change in attitude to ‘political crime’. It bears directly on the current debate about capital punishment,” said a human rights lawyer. The ”Queenstown trial” this week was the second time the men were tried for the murder of Noshipho Zamela in Mlungisi, near Queenstown. The five were originally sentenced to death in 1987. However, their convictions and sentences were set aside by the appeal court on the basis that the dismissal of one of the assessors by the trial judge had been irregular. The assessor in the trial had requested that he be granted leave because his daughter was ill. The judge had allowed him to go. This, the defence claimed, was irregular, and it was on this ground that the retrial was ordered.
Passing sentence in the retrial on Tuesday, Mr Justice C Jansen said factors he considered were the concept of ”deindividuation” and how this phenomenon might have influenced the behaviour of the accused in a crowd situation. Judge Jansen said the subjective minds of the accused at the time was an important consideration as what had consciously or subconsciously driven them to act the way they did. Legal Resource Centre director, Arthur Chaskalson SC, said: ”The judgement is striking and demonstrates the danger of the death penalty because the difference between the death sentence and 20 months is so extreme.” He added: ”This shows that if appropriate evidence is produced and it has appropriate consideration the difference may be between death and imprisonment. ”The decision requires government law advisers to reassess recommendations as to whether or not death penalties should be implemented.”
The remaining five men were re-arrested immediately after the Appeal Court’s decision and again charged with the murder of Zamela. At the start of their retrial early this year, the five pleaded guilty to murder and the defence led expert evidence in extenuation. Justice Jansen sentenced the six to 60 months’ imprisonment, of which 40 months were suspended for five years. Justice Jansen remarked that his judgement, in particular the leniency, may come in for criticism in certain quarters – particularly among some politicians. But he said if he did err he would prefer to err on the side of the accused. He accepted that the perception of the community, their sense of relative deprivation, their sense of alienation and frustration and their experience of police actions were all relevant in determining the subjective state of mind of the accused when they became part of the crowd which necklaced the deceased. – Ivor Powell and Phil Molefe
This article originally appeared in the Weekly Mail.
