The truth commission will examine whether judges `dished out death sentences’ to shore up apartheid, writes Swapna Prabhakaran
SOME of South Africa’s judges, including one working for the Truth and Reconciliation Commission, will be called before the commission to defend apartheid-era decisions to send hundreds of people to the gallows.
The issue of the death sentence is likely to be among the thorniest and most emotive when the truth commission holds hearings in October into gross human rights violations by the judiciary.
The commission will also be faced with the task of examining claims that some judges routinely dished out the death sentence to shore up the apartheid structure – particularly in its dying days.
Legal observers argue, however, that the judges’ hands were tied once they decided to participate in the legal system. The law at the time stipulated a mandatory death penalty for murder if no “extenuating circumstances” could be found.
The death penalty was suspended in 1990, as talks between the then National Party government and the African National Congress gathered pace. It was formally scrapped in 1994.
Judge Andrew Wilson, one of three judges now working for the truth commission in assessing amnesty applicants, said this week he could not remember how many death sentences he had imposed on the bench.
“I think every judge in that time passed the death sentence. One had no choice then. I doubt I would have done it if I had the choice.”
Wilson recently granted amnesty to Brian Mitchell – the man he had sentenced to death for his involvement in the Trust Feeds massacre; Mitchell’s death sentence was commuted to a long prison term.
Hanif Valli, the truth commission’s legal adviser, says the hearings will not be a witch-hunt. “They won’t be bringing down individual judges. It is rather to get the role of the judiciary in that era.”
Among the submissions the truth commission is expecting is one from human rights activist Paula McBride, who refused to disclose the details of her submission ahead of the truth commission receiving the document.
However, the Mail & Guardian has obtained the draft document from other sources. It shows that the judges who passed death sentences were all white, and 95% of those they sentenced to hang were black. In the ten years before 1985, more than 1 000 people were hanged; only 22 of them were white.
The document draws a close link between the death sentence and the apartheid environment in which judges took their decisions.
Her report names a string of judges who became renowned for handing out the death sentence.
They include Judge Deon van Zyl, now at the high court in Cape Town, who sentenced a man to death after a one-day case in 1988.
Judge van Zyl sentenced Michael Bini Matli to death after he was convicted in one day in the Lichtenburg Circuit Court for stabbing a woman to death. Matli refused a state defence, did not give evidence in his defence and called no witnesses. “In the absence of any other evidence, the court finds there was direct intent to commit murder,” Judge van Zyl ruled.
He said this week: “It was the most upsetting thing; it was most traumatic. I accepted that I had no choice but to pass the sentence. I had taken an oath.
“If there were no extenuating circumstances, I had to apply the law. To me it was the most difficult thing in the world. Acting like God. But on the other hand, if you decide you can’t do that, then don’t become a judge.”
He said that, of the nine people he had sentenced to death, only two actually went to the gallows.
Judge Raymond Leon, now retired, sentenced Andrew Zondo to death in 1986 – and two years later, became a supporter of the Society for the Abolition of the Death Penalty.
The report recounts how Leon sentenced 19- year-old Zondo to death five times for his involvement in the Amanzimtoti limpet-mine attack, but let his accomplice – who ratted in return for anonymity – go free.
Leon was unavailable for comment this week. Summing up at the end of the trial, however, he said: “We have not the smallest hesitation in accepting the evidence of the accomplice as true and that of the accused as false beyond all reasonable doubt … extenuating circumstances are not present in this case.”
Judges JMC Smit and David Curlewis, who each condemned over a dozen people to death, still sit on the bench.
Legal observers pointed out this week that a prisoner given the death penalty could apply for the right to appeal to the then Appellate Division in Bloemfontein. Also, a judge could petition the state president for clemency.
Some judges, however, were more inclined to pass the death sentence than attempt to find extenuating circumstances which could save the prisoner’s life.
To compound matters, the state-provided defence was often a junior or inexperienced lawyer, who made little or no effort to find out the defendant’s circumstances and history, to fill in the blanks behind motive, and support extenuation. Much of the evidence for the defence could also be lost in interpretation.
Civil rights lawyer Brian Currin, the former national director of Lawyers for Human Rights, said this week that the whole judicial system had been flawed. “Some judges went out of their way, sometimes dishonestly, to find extenuating circumstances,” he said. “Those who were pro the death penalty would not spend as much effort.”
The National Association of Democratic Lawyers is also preparing a submission to the commission on the judiciary’s role, focusing on lawyers’ experiences at the hands of the courts under the previous government.
“The legal system was used to legitimise apartheid,” said association representative Vincent Saldhana. “They could arrest people, torture them for statements, and then convict them on the basis of those statements. The judiciary did not question it.”