/ 21 June 2012

The historical case for an independent judiciary

Viewed from the context of South Africa in 2012
Viewed from the context of South Africa in 2012

Last week the Encounters Documentary Film Festival screened a documentary called Common Purpose. It tells the remarkable story of the Upington 25 murder trial of 1986 to 1989, which culminated in a decision of the appellate division in 1992.

On November 13 1985 in Paballelo, a township next to Upington, a crowd of people stoned, beat and eventually killed a municipal policeman, Lucas Sethwala. It appeared that the police, as was their brutal custom at that time, had attacked a crowd of people who had gathered in support of national protests against the apartheid regime.

As the crowd rushed for safety, some came close to Sethwala’s house, whereupon he began to shoot at them. It provoked a furious volley of stone-throwing at the house. At some point, Sethwala sought to escape, but he was set upon by the crowd and its brutal attacks led to his death.

Twenty-five people were charged with the murder. The state insisted that it was the outcome not of a spontaneous reaction to the conduct of the police and then Sethwala, but of an orchestrated response to governmental authority.

The trial ran for two years, at the end of which Justice JJ Basson found the 25 guilty on the basis of the “common purpose” doctrine, much used by the state in political trials at the time. All 25 faced the death penalty unless extenuating circumstances could be shown.

Proving extenuation
During the trial, the accused were represented by advocate André Landman, who had heroically run the defence on his own for two years. Anton Lubowski, the prominent and charismatic Swapo leader and advocate (later murdered by agents of the apartheid regime), was briefed to assist the defence in proving extenuation.

Lubowski contacted a 29-year-old Cape Town attorney, Andrea Durbach, to organise this defence, from which point Common Purpose documents proceedings.

Durbach first briefed Peter Hodes SC, a doyen of the Bar, to persuade a very reluctant judge to grant a nine-month postponement so that expert evidence could be led to prove extenuation. That procured, she organised a battery of experts to lay the basis for extenuation. This was grounded on a theory of deindividualisation: that members of a disturbed crowd did not act within the compass of their individual moral framework.

Ian Farlam SC, later a Supreme Court of Appeal judge, was briefed to lead the defence. The upshot of this remarkable work by a junior attorney culminated in the sentencing of 14 of the accused to death in 1989, though all the sentences and most of the convictions were set aside by the appellate division in 1992.

So much for the bare facts. The film, which does not shy away from the brutality of the murder, focuses on the stories of the 25, some of whom were not even in the crowd on that fatal day in 1985, but whose lives were all changed dramatically by the events. The 14 sentenced to death were jailed for two years on death row in Pretoria before being freed.

Confidence of the accused
The film tells their stories, which were inextricably linked to Durbach. In the face of a deeply conservative white judge and a police force trying to manipulate him, the witnesses and thus the trial, as well as a hostile, racist Upington community, she won the confidence of the accused and doggedly and skilfully ran a defence that saved their lives.

Viewed from the context of South Africa in 2012, Common Purpose reminds us of apartheid brutality, FW de Klerk’s recent protestations notwithstanding, as well as a time when white and black South Africans could be joined in a common purpose – in this case, to prevent the state committing further murder.

Despite, or perhaps because of this oppression, white people like Durbach and black South Africans like the 25 and their extended families could develop lasting bonds. The film movingly recalls a time when the possibility of constructing the kind of nonracial South Africa later set out in the Constitution seemed truly attainable.

The film also asks us to reflect on how the law could both oppress the people and constitute a bulwark against the same oppression. In this respect, we are reminded of the importance of an independent judiciary, one not beholden to the political regime.

This was shown by the three judges of the appeal court, Ernie Grosskopf, Peet Nienaber and John Smalberger, who set aside Basson’s decision – a decision desperately sought by the PW Botha and De Klerk governments. It also focuses our attention on the importance of an independent Bar with members who can take on such politically fraught cases.
Common Purpose should be compulsory viewing for all those who have forgotten the promise of a South African national common purpose, as well as for all those who wish to transform the judiciary and the profession to reflect the image of the ruling party.