/ 26 April 2018

The death penalty and judges who had to apply it

Fruits of freedom: Phineas Mahlangu (above) was forced by police to identify his relative Solomon Mahlangu in a line-up. (Walter Dhladhla, AFP)
Fruits of freedom: Phineas Mahlangu (above) was forced by police to identify his relative Solomon Mahlangu in a line-up. (Walter Dhladhla, AFP)

Andrew Sibusiso Zondo called out just one word after he was sentenced to death: “Mama”.

The court scribe was not certain though. It may have been “Amandla”.

The year was 1986. He was 19 years old. He had, according to the court transcript, already seen children on the streets of his township being gunned down by the police. He had already been arrested once — for nothing, the court said. He had already, at 16, left South Africa to get military training from Umkhonto weSizwe in Angola and had come back, a trained soldier. His commander was known as “Tall Man” and he was trained in weapon making.

Simultaneously, in an altogether different world to the streets of Zondo’s home in KwaMashu, there was an ongoing debate among South Africa’s small community of liberal to left-leaning advocates: to be a judge or not to be a judge.

Black lawyers were not faced with the same conundrum: they were never going to be judges under an apartheid government, no matter how brilliant they were. Nor was it an issue for the majority of white lawyers, who had no qualms in applying apartheid laws; once appointed, some did so with apparent relish.

But for this small group, it was a real, and tormenting, moral dilemma. For any lawyer, to be appointed a judge is considered the pinnacle of an illustrious career. But in South Africa, in the late 1970s and 1980s , it meant becoming the instrument of a racist, brutal and unjust legal system. It could mean sending people to the gallows.

The other side of the debate was that, for the hundreds of political detainees brought before the courts at the time, drawing a liberal or left-leaning judge was a godsend: it could mean the difference between a conviction or an acquittal, between five years or seven years, a life sentence or a noose around your neck.

Some, such as the first head of South Africa’s Constitutional Court, Arthur Chaskalson, would not be judges. Judge John Didcott, also a justice of the Constitutional Court’s first Bench, became a judge and, somehow, avoided death penalty cases. Others, like Judge Ramon Leon, tried as hard as they could to avoid imposing the death penalty, but sometimes did so, albeit with great anguish.

Leon died last week and, in the days that followed, was wrongly reported, including by the Mail & Guardian, as having played a role in the hanging of the more famous struggle hero, Solomon Mahlangu — first as the trial judge and then in an appellate capacity. In truth he had nothing to do with Mahlangu’s case — he never sat, even as an acting judge, on the Appellate Division, said two senior judges.

But Leon was the judge that five times sentenced Zondo to death.

It was Judge CDJ Theron who, in 1978, sentenced Mahlangu to “be hanged by his neck until he is dead”.

[Solomon Mahlangu was hanged on April  6 1979. He had not shot anyone but the judge found the principle of common purpose applied. On April 6 1993, his body was reburied at the Mamelodi Cemetery. (Walter Dhladhla/AFP)]

Theron did not fall into the group of lawyers who agonised over being an apartheid-era judge. Two petitions to the Appellate Division listed numerous grounds for appealing Theron’s judgment: Mahlangu had not shot anyone, yet was convicted under the doctrine of common purpose — a doctrine that allows a court to convict everyone in a group who together commit a crime if they acted in terms of a common purpose, when the person who actually dealt the fatal blow cannot be identified.

But, said one of the petitions, the way Theron had applied the doctrine extended its para-meters “to limits which are logically indefensible, juridically dangerous and … inconsistent with established judicial precedent”.

Mahlangu’s attorney Priscilla Jana described it more vividly in her book Fighting for Mandela, saying junior counsel Clifford Mailer had argued “that the doctrine of common purpose was being totally distorted and misused”.

“He fought against the appointment of the notorious Judge Theron and his two assessors, the whole team having a reputation for toughness, cruelty and outright racism. He sought to have the judge recused, but failed.”

Jana describes how Mailer said “there was mob hysteria, with whites choosing to believe that terrorists were on the loose in Johannesburg city centre. It was clear that Solomon had had no intention to kill. The circumstances were clear. I had questioned him closely and all the evidence pointed to his truth … His conviction for murder was a travesty.”

When Zondo was sentenced, eight years later, it was a different era of the ANC’s armed struggle — the era of People’s War. Thula Simpson, author of Umkhonto we Sizwe: The ANC’s Armed Struggle, quotes ANC publication Sechaba as saying: “The time has come to take the war to the white areas. White South Africa cannot be at peace while the black townships are in flames.”

[The gallows: Andrew Zondo was found guilty of planting a bomb in an Amanzimtoti shopping centre, which killed three adults and two children. He was sentenced to death by Judge Ramon Leon, who died last week]

In his book Simpson says that, when this was expanded on by Sechaba, what it meant in practice was a “restrained” response: strengthening labour organisations, expanding consumer boycotts, attacking military structures and government institutions and holding demonstrations in white areas. It did not mean attacking civilians.

But the regime’s killers were getting worse and people were angry. Inside the country, the townships were on fire and the prisons were full. Assassinations, torture and extended periods of solitary confinement were the norm. Outside the country, the apartheid regime was running two civil wars — in Angola and Mozambique, with untold numbers killed or maimed — and conducting raids and massacres in neighbouring countries.

In December 1985, there was another massacre. In Maseru, nine ANC cadres were gunned down in a raid, leaving a nine-month-old baby an orphan. This was the story Zondo read in the newspaper on the morning that he was looking for a place to plant a limpet mine, after being instructed to launch a retaliatory attack.

Two days after the Maseru attack, Zondo put a bomb into a dustbin at the Sanlam Centre in Amanzimtoti. It was a few days before Christmas, at 11am. The mall was bustling with white South Africans doing their last-minute Christmas shopping. The dustbin was near an SAA accredited travel agent, which Zondo associated with the government.

Five people were killed by the bomb, including Cornio Smit, who was eight years old, and Willem van Wyk, who was only two. Many more were badly injured.

In an interview shortly after the Amanzimtoti blast, then ANC president Oliver Tambo said: “Massacres have been perpetrated against civilians: Mamelodi, a massacre. Uitenhage, a massacre. Botswana, a massacre. Queenstown, a massacre … certainly, we are beginning see South Africans of all races [burying] their loved ones … The whole of South Africa is beginning to bleed.

[Justice: Judge Ramon Leon]

“If I had been approached by an ANC unit and asked whether they should go and plant a bomb at a supermarket I would have said, ‘Of course not’. But when our units are faced with what is happening all around them, it is understandable that some of them should say: ‘Well, I may have to face being disciplined, but I am [still] going to do this.’ ”

Tracking down the court records of the Mahlangu and Zondo cases meant a trip to the general office of the Supreme Court of Appeal in Bloemfontein, which formerly housed the Appellate Division.

The Zondo judgment of Leon is unreported, as is the refusal by the Appellate Division to hear his appeal. Also unreported is the judgment of the trial court in Mahlangu’s case and both petitions to appeal.

To the compilers of the law reports it seems that these cases were just two of dozens each year in which the death penalty was imposed.

The full trial record in Zondo’s case is not contained in the appeal petition file. But people who attended or followed the trial say it would have been hard for Leon to come to a different verdict, because the accused admitted to most of the facts. It would be unfair, they say — a travesty even — to call Leon a hanging judge. In his entire stint on the bench he sent perhaps seven people to the gallows, said his son Tony in a tribute.

In finding Zondo guilty on all counts, Leon rejected his version that he had meant to call in a bomb scare that would clear the mall and so avoid loss of life. Zondo was a “lying witness”, said the judge, whereas the evidence of his accomplice, turned state witness, was “excellent”.

The clincher was that the accomplice had said that, after the attack, Zondo had lamented that only five people had been killed, instead of nine — a number equal to the Maseru victims.

“The accused, even on his own evidence, disregarding orders which he had from a higher authority, deliberately selected a target in a crowded shopping centre two days before Christmas, well knowing that the limpet mine, which had been put into operation, would explode within 25-30 minutes and would thereby kill indiscriminately any member of the population who happened to be in the vicinity; black or white, innocent or guilty, young or old. This was a deliberate, indiscriminate attack on the civilian population.”

Nor were there any extenuating circumstances to warrant sparing him the death sentence, the judge found. Zondo’s age was “a factor” but not a “compelling one”. His socioeconomic status was acknowledged, with Leon saying: “The monopoly of political power and its fruits is in the hands of the white section of the population, while the black section in general is less affluent, less well-off and has few amenities of life.” Acknowledged also was his life experience (witnessing the killing of children by the police in 1982 and his own arrest “for no valid grounds”). But they were not persuasive to the judge. Nor was his remorse for the loss of life and his apology.

“On Count 1 you are sentenced to death. On Count 2 you are sentenced to death. On Count 3 you are sentenced to death. On Count 4 you are sentenced to death, and on Count 5 you are sentenced to death. May the Lord have mercy on your soul.”

Neither Leon nor Theron gave more than a brief reason for refusing leave to appeal. But most striking in both cases was the apparent nonchalance with which the Appellate Division rejected their petitions for appeal. On June 26 1986 — less than three months after his sentence — a terse notification from the registrar of the highest court refused Zondo leave to appeal and thereby sealed his fate. It said only: “I am directed by the Honourable the Chief Justice to inform you that leave to appeal against extenuating circumstances is refused.”

An almost identical order of refusal came — twice — in Mahlangu’s case.

In neither of the cases were reasons given and in neither were any judges named — standard practice at the time. We will never know, from the publicly available records at least, who on the Appellate Division saw fit to send a 19-year-old to the gallows. Nor a 23-year-old, convicted for the murder of people whom he had not killed.