Special Hearings — Legal Hearings — 1997-10-27

CHAIRPERSON: Hanif.

MR VALLY: Thank you Archbishop.
 Ms McBride, I think it is only fair to put before you what Chief Justice Corbett said in his response to a criticism from NADEL regarding the Andrew Zondo trial and I will just read to you a small passage - 
"The trial judge was an experienced and highly respected member of the Natal bench. The Court gave careful and anxious consideration to the question of extenuation, and took into account the fact that the accused was a little over 19 and a half years of age when the crime was committed.
The second sentence of the crime whether the accused planted an armed limpet mine in a crowded shopping centre at Amanzimtoti on the 23rd December 1985, two days before Christmas, it was timed to detonate at 11h00 which it did, five people including two children were killed and scores were injured. 
The Court found on the evidence that this was a deliberate, premeditated killing and that the accused had afterwards expressed to his accomplice his dissatisfaction with the fact that 'only four people' had been killed. It appears that in 1982 at the age of 16, and then in his matric class at school the accused was recruited by the ANC and sent to neighbouring countries where he joined Umkhonto weSizwe. He spent two years in Angola during which time he was taught to handle explosives and firearms. 
In 1985 he returned to South Africa where he taught others, some of them older men, what he had learnt in Angola. 
The Court concluded that although the accused youth was a factor it was not a compelling factor and that taking all circumstances into account a finding of no extenuating circumstances should be made. 
After leave to appeal was refused, the accused petitioned the Chief Justice and the petition was considered by three judges of the Appellate division who refused leave to appeal. Leave could be granted only if there were reasonable prospects of success and an appeal could only succeed if the Court was shown to have materially misdirected itself or committed an irregularity or if the finding on extenuation was one which no reasonable Court could have made. No such grounds were established."
There is further representation by Justice Corbett on this issue in criticism of the position taken by Mr Govender of NADEL. 
 What I am trying to put to you is that as the Chief Justice does, in terms of the law existing at the time, in terms of ...(indistinct) existing at the time, could Justice Leon's position be legally justified?

PAULA MCBRIDE: Well it just, I would say no. I think it is no. I don't know if I need to say anything else. I think that it is interesting that on the same provincial division there was a judge who had seen many capital cases in front of him who never passed the death sentence.

MR VALLY: I am trying very hard not to defend the death penalty but I just need to ask this question - is it a personal point of view or is it a legal point of view?

PAULA MCBRIDE: What I am saying is that the question of finding extenuating circumstances is a question that is a moral one and I think that the, for a judge to say he had no other option, is wrong, whether that is a legal opinion or a, any kind of an opinion, it doesn't matter, the fact is a person could find extenuation if they wanted to find extenuation and I think the point I am making is that judges are human beings, judges have prejudice, judges are not above prejudice, judges when they put their robes on do not become supermen, they are raised in the same country as all of us and I think that there is a lack of acceptance of that, so it is just my opinion.

MR VALLY: The reason I am also asking this question is to take this issue forward on the issue of the death penalty bearing in mind the role of the Truth Commission in making recommendations in future. The Constitutional Court has made a ruling regarding the unconstitutionality of the death penalty, however, either a future Constitutional Court could come to a different decision or there could be an amendment to our Constitution which allows the death penalty even in the new democratic South Africa, would your position on the death penalty in terms of what you have amongst other things explained being the arbitrary nature depending on which judge you draw etc. would the same pertain?

PAULA MCBRIDE: Yes, it would be exactly the same. I wouldn't mind how democratic the country was, I would oppose the death sentence.

MR VALLY: And finally there is this one other issue which I want to ask you about, and the death penalty, I personally find abhorrent, however, let's remove it from that scenario, let's take a situation where a judge sentences someone to life imprisonment, surely that very responsibility that society has given to a judge, and I am talking about a democratic society, would apply, it is one of the responsibilities that judges given in our society, that you will take responsibility for judging this person's crime and upon finding him guilty with all the rules in place and legal defence you are entitled to withdraw him from society for a certain period.

PAULA MCBRIDE: : Yes.  What I think the difference is, and I think the difference has been highlighted in cases in Britain recently, like the Guildford case where there is a difference between being sentenced to death and being sentenced to life imprisonment and in those cases where there was a wrongful conviction and a wrongful sentence, 15 years later they came out of jail. It is a bit difficult to do that when you have sentenced someone to death and that is why we will always accept judges have those prejudices but when those determine the difference between life and death they are more abhorrent.

MR VALLY: So your criticism is largely centred around the death penalty, not necessarily the role that the judges have to play in society?

PAULA MCBRIDE: Well, I think that there is a general criticism on the role that judges played during the apartheid era and that I would stand by. What I am saying is that it becomes particularly strong when what those prejudices meant and what they are upholding in the system meant, was the difference between life and death, but my general criticism which I spoke at the beginning stands, I think they upheld the system of apartheid and they did it very well, because apartheid ran very smoothly, and I think that they must be made to account for that.

MR VALLY: And finally, because there have been calls by some politicians for the reinstatement of the death penalty, what would your view be in regard to the position regarding the reinstatement of the death penalty vis a vis the issue of Human Rights?

PAULA MCBRIDE: What do you mean, would I support the reinstatement of the death penalty?

MR VALLY: No, do you think it is a violation of human rights - if there was a death penalty even if the Constitution allowed it?

PAULA MCBRIDE: Ja, I would support the Constitutional Court judgement on it and their interpretation of it. I would.

MR VALLY: Thanks Paula.

CHAIRPERSON: Thank you. Joyce.

MS SEROKE: Paula, it is interesting that you highlight the trial of Andrew Zondo in your submission and the manner in which Judge Leon conducted that trial, because Mrs Zondo appeared before one of our hearings in Durban to testify against that trial and she made two requests to the TRC.
 Firstly she was very perturbed by the fact that her son was 19 years old at the time he planted the bomb, and that Judge Leon could find no extenuating circumstances, and the request that she made to the TRC was that we should put the straight record and she would feel very happy and would feel that her son didn't die in vain. Now, what would you suggest for the TRC to fulfil that request of putting the record straight?