Special Hearings — Legal Hearings — 1997-10-27

UNKNOWN: Thanks Mr Chairperson. On Page 36 we deal with the judicial imposition of the death penalty and we have divided that submission into the following headings: Firstly, Arbitrariness; secondly, Racial and Political Bias, third Controversial Convictions and Circumstances overlooked in sentencing determination, carelessness, inadequate safeguards. After Paula McBride's submission this morning one might well ask if there is anything further to be said about the Death Penalty. I am just going to highlight a few issues from our submission. We mention on page 36 the high number of executions between 1985 and the middle of 1988, South Africa carried out the second highest number of executions, 537 in the world. Between 1910 and 1989 over 4200 persons were executed.  Blacks were executed in gross disproportion to their percentage representation in the population. Between 1980 and 1988, 97 percent of the 1070 persons hanged were black.  A survey in 1989 revealed that the average person on death row is black, comes from a financially disadvantaged home, was raised by a single parent, did not complete school and is an unskilled or semi-skilled labourer. The significance of that is self -evident. I will skip over the section dealing with Arbitrariness and come to Racial and Political Bias. In footnote 164, I think it is useful to note, Mr Chair, the case quoted here. There was a sentence of a white farmer by Strydom J which was reversed by the Appellate Division. Strydom J in 1988 heard the case of this white farmer, a man named Vorster who tortured a black employee to death over two days for accidentally running over two of the farmer's dogs eight weeks earlier. The farmer was given a suspended five year jail sentence, a R3 000 fine and an order to pay restitution of R130.00 per month for five years.
 This was overturned on appeal. The AD calling it a fundamentally fallacious and a serious misdirection. The speaker of the Assembly incidentally refused to allow Helen Suzman to petition for Strydom J's removal on the ground that she had failed to state a prima facie case.  
 Now it is sentences like this in this Vorster case, Mr Chairperson, which prompts NADEL to ask judges, magistrates, judicial officers, come forward, bear your soul to the nation and come and explain sentences like this, come and explain the uneven approach that you had, the racial bias, it was so evident in your sentencing. In now notorious remarks Supreme Court judges have taken judicial notice of the fact that blacks can recognise people they know in comparative darkness. That black women submit to rape without protest. In 1964 Van der Reit JP remarked:
"The Native...."   as he called it,
"vis a vis the European in giving evidence is so prone to exaggeration that it is often impossible to distinguish the truth from fiction. There are other factors which militate strongly against the acceptance of the allegations of the accused, again resulting largely from the inherent foolishness of the Bantu character'. 
Now that's a Supreme Court judge saying this in open court and the question is asked: "Do we have to account for anything? Do we have to answer for anything?"   Political offenders, Potlaka Lebalo, Joe Slovo, Harold Wolpe or Arthur Goldrich in particular, appearing on a capital charge before Munnik J in the 1960's might have reason to fear judicial prejudice had he known of this very judge's remarks to PAC activist L Noyokana in 1967 and the judge said as follows:    
"No Country, no government, no people can allow it's safety or the safety of the State to be threatened by people taking the law into their own hands. In such attempts to divert the country must be stamped out ruthlessly."
 ...(tape ends) 
"The man who started all this trouble, Lebalo, is not amongst those who have been sentenced by the court or apprehended by the police, but when he addressed you he did not tell you that he was going to see that he wasn't caught, neither did the white people who fled the country after stirring up all this trouble, the Slovo's and the Goldrich's and the Wolpes. They are touring Europe at the moment, living on the monies which are collected from people who are misguided enough to support them".
Talk about justice.  
 I move onto the last aspect under this section, Carelessness. In David Brooke's interview with an unnamed Durban judge revealed a very cleverly approach to sentencing.  
"The Durban judge told me on occasion he had even imposed death sentences merely to frighten local criminals while fully intending to write to the Minister of Justice to recommend clemency.'
He didn't know whether these death sentences had actually been commuted. He felt sure they had been but he had never enquired. Brooke adds -
"If he had, he might have been surprised. The judge had informed me that the State President commutes over 80% of the death sentences every year, but the actual commutation rate last year was 15%, less than a fifth of what he believed."
 Rendering these factors even more problematic was the fact that until 1990 the only safeguards against wrong death sentences were appeal by a higher court and executive clemency. There was, however, no automatic right of appeal and research has revealed that leave to appeal was refused by the trial judge in a very high percentage of cases. In 120 completed hearings in the Cape Provincial Division between 1 January 1986 and December 1988 leave to appeal was granted in only 40 cases and in a not insignificant number of those cases which in the same study went on appeal, 8 out of 31 the death sentence was overturned. Thank you.

CHAIRPERSON: Thank you very much. What happens now?

UNKNOWN: Thank you Honourable Chair. As you will note from the document before you we are almost on the home stretch even though we are into injury time.  So if you would allow us the indulgence of finishing the fourth section and my colleague Dali will take us home as it were.

CHAIRPERSON: Yes, well how are you feeling? It is a free country. Thank you very much for your patience, Mr Minister.