Alan Paton began publishing articles on crime in the late 1940s. The same themes appeared in his novel Cry, The Beloved Country, published in 1948. In the novel a white man, murdered by a gang of three juvenile African housebreakers, is busy writing an article called The Truth about Native Crime at the time of his death.
But there is much that is faulty in Paton’s interpretation of the law. It would be tedious to rehearse all the inaccuracies, but there is one issue that was a central tenet of the liberal faith that Paton professed: “In South Africa men are proud of their Judges,” he writes, “because they believe they are incorruptible. Even the black men have faith in them, though they do not always have faith in the Law. In a land of fear this incorruptibility is like a lamp set upon a stand, giving light to all that are in the house”. The separation of the law from politics was part of liberal ideology at the time, but it is now trite to say that it was impossible to dispense equal justice in an unequal society.
The limits of judicial impartiality can best be tested in the application of “common purpose” in robbery murders, which were punished more severely than any other type of murder. The “constructive malice” doctrine holds that if a person engaged in committing a felony or resisting an officer of justice kills another person, he may be guilty of murder, although otherwise the offence might amount only to manslaughter. The doctrine infringes the principle that persons ought not to be punished for consequences of their acts they did not intend or foresee.
There were two reasons for this. First, there was the motive of gain, uncomplicated by the passion, provocation, rage or unhinged mind of a revenge murder. Second, robberies were planned and not committed on impulse, thus robbery murders were committed in cold blood. Of all the men hanged in South Africa most were hanged for robbery murder.
In Cry, The Beloved Country, Paton makes an authorial point about judicial impartiality. Before the white man is murdered, an African servant is cruelly struck down. “There is a school of thought which would regard such an offence as less serious when the victim is black,” writes Paton. “But no Court of Justice could countenance such a view.”
Paton’s target here was Dr AB Xuma, then president of the African National Congress, who wrote in 1942 that Africans “do not believe that justice is colour blind … what appears serious ends often in nothing if the African is the victim”.
Most victims of robbery murder were Africans. Moreover, most murderers were never apprehended, even when the police knew their names and places of abode. In fact, very few homicides in Johannesburg, the “university of crime”, were even prosecuted. From 1939 to 1942, for example, at most only 20% of suspicious deaths in Johannesburg led to a prosecution for murder or culpable homicide.
How impartial were judges when the victim of a robbery murder was white? Paton was impressed by a murder that took place just before he began writing Cry, The Beloved Country. The racial murder in the novel is a lightly fictionalised account of real events. On November 29 1945, Dorothy Campbell-Gilchrist was murdered in her home in Forest Town, Johannesburg. On June 8 1946, two days before the trial began, Paton left for an extended trip abroad and wrote his novel between September and December of that year. But he read about the murder and the sensational preparatory examination in the Rand Daily Mail. He even used newspaper reports almost verbatim in his text: “These were the headlines that men feared in these days. Householders feared them, and their wives feared them. All law-abiding black men feared them …”
Consider, then, the details of the Campbell-Gilchrist murder. On the evening of November 28 1945 the Gilchrists engaged Samuel Sikepe as a “house boy”. The following morning he was left alone in the house with Mrs Gilchrist, while Mr Gilchrist went to work. At 3pm Mr Gilchrist returned home to find his wife dead. She had been strangled, the house had been ransacked and articles, clothing and a gun, stolen. The district surgeon surmised that Mrs Gilchrist had disturbed thieves and “in order to stifle her cries for help, pressure had been applied to her mouth and throat and her death had resulted”. Sikepe had disappeared.
On December 10, pass-raid police chanced upon Sikepe and a Joseph Ndwakulu visiting a friend in a servant’s room in Parktown West. Ndwakulu tried to hide a revolver under the bed. They were arrested and taken to Parktown police station. The revolver turned out to have been stolen from Mr Gilchrist and it was wrapped in one of Mrs Gilchrist’s handkerchiefs. Sikepe was found wearing clothing belonging to Mr Gilchrist. Some days later Jack Sheshonga was arrested at Mara in the district of Louis Trichardt. He was caught with clothing from the Gilchrist house.
Judge WH Ramsbottom was meticulous in weighing up the evidence. “The difficulty in the case,” he wrote, “is to be certain who the persons were who were the parties to the common purpose.” Ramsbottom thought the jury was correct in finding Sikepe a party to the murder — he was the “house boy” who had disappeared and he had a number of convictions. The case against Sheshonga was not so strong. But Ramsbottom thought the jury was correct in finding him an “active participant”. He had no previous convictions, although he had been detained at a farm colony “as an idle and disorderly person” under the Urban Areas Act. The case against Ndwakulu was weak. He had no employment and lived by gambling, but he had no previous convictions and that was a point in his favour.
Yet the jury found “the crime which was committed was murder, that there was a common purpose to use the kind of violence that was used, and that all who were parties to the common purpose were and are guilty of murder”.
Ramsbottom had his doubts. “It is the kind of case,” he wrote, “in which the circumstances — a woman done to death by native thieves — may have influenced the jury’s verdict in regard to all these accused; there is always that danger. Moreover, the statements of Nos 1 and 3 [Sikepe and Sheshongwa] implicate No 2 [Ndwakulu]. The jury were [sic] very clearly warned that those statements were not evidence against No 2, but it is very difficult to dismiss them from one’s mind.”
Ramsbottom felt Sikepe and Sheshonga should hang, but he thought it would be wise to reprieve Ndwakulu.
There were a number of remarkable elements to this case. First, the jury returned a seven-to-two majority verdict, very close to a mistrial. Two white jurors were able to hold out against the fears of white property-owners and not only recommend mercy but call for an acquittal. Second, several points of law were referred to the appeal court, but on August 28 the appeals were dismissed. Third, Judge Ramsbottom warned against popular pressure on the jury and focused tightly on the evidence that cast doubt on the conviction of Ndwakulu. Last, this case was decided in the mercy process and it was decided in the following way.
What had to be proved to the satisfaction of the Cabinet and the governor-general was “common purpose”. Harry Lawrence, the then minister of justice, acknowledged that Sikepe and Sheshongwa’s statements could not be used against Ndwakulu in a court of law, but used them against him in the privacy of the executive council. Thus, Sheshonga and Sikepe claimed that Ndwakulu was the leader of the gang and the minister accepted this. This was good enough to hang Ndwakulu.
All three were hanged in Pretoria Central. The executive council had acted as a barometer of white popular feeling. It brushed aside the warning of the judge and the doubts of two jury members. Normally a majority jury verdict was a warning that a hanging would be unsafe. Such warnings were ignored only in cases of racial rape. It would seem that a similar demand that retribution be seen to be done applied in racial murder.
White Mercy: A Study of the Death Penalty in South Africa, by Robert Turrell, is published by Heinemann