Human Rights Violation Hearings — Soweto — 1996-07-26

KATHLEEN SATCHWELL: My name is Kathleen Satchwell.  I am admitted to practise as an attorney of the Supreme Court. I am also admitted to practise as a notary public and a conveyancer. I have been in legal practice in Johannesburg since 1979.  I am not a member of any political party and I give evidence to your Commission in my capacity as an attorney. Shall I
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continue?
 There are several reasons why I give evidence to the Commission.  Firstly, one of the objectives of the Commission is to establish as complete a picture as possible, of the causes, nature and extent of gross violations of human rights which took place during the period 1960 to 1990.
 It is my view that the picture which your Commission seeks would not be complete without an examination of both the legal system and the administration of justice during that period. In order to establish the nature and the causes and extent of the gross violations of human rights, I submit that it is essential that this Commission have regard; one, to purposes for which the laws of apartheid were created. Two, the creation and introduction of such laws.  Three, the manner in which such laws were used by the organs and authorities of the apartheid state, including the security branch, the South African Police, the Department of Prisons and the Department of Justice.  Four, that you should look at the role played by both the magistrates and the Supreme Courts in interpretation and implementation of the laws of the apartheid state.
 The second reason why I give evidence to the Commission is that I believe that it is very important that the violations of human rights which took place in this country, should not be seen as isolated and momentary aberrations, on the part of a few uncontrolled individuals.  These violations took place over a long time and in a systematic manner.
 These violations did not take place in spite of the rule of the law and the protection of law.  These violations SOWETO HEARING TRC/GAUTENG
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took place because our legal system permitted and even encouraged such violations to take place.  The abuse of freedom in this country was deliberate.  The law, and our legal system, was intentionally used and manipulated for that purpose.
 Thirdly, it is my submission that one of the cases of human rights violations during the apartheid area was the degradation of law and justice in the society.
 The entire body of South African law was manipulated and used by the apartheid regime. It was not only racist legislation, such as the Group Areas Act, the Population Registration Act and the Pass laws which was an integral part of the apartheid system. It was not only the security laws, such as the Internal Security Act, the Terrorism Act, the Sabotage Act, which created and allowed human rights violations. No area of South African law went untainted.  
 For example, commercial law such as the Copyright Law and Company Law incorporated apartheid philosophy and practice. Institutions such as the Registrar of Deeds were affected.  The Criminal Procedure Act was amended more than once to permit persecution of the political opponents of the apartheid regime.  The executive organs of government, such as the South African Police and the Department of Prisons were enjoined to use those powers which allowed for human rights violations.  The courts were not independent of the purposes and powers of the apartheid regime.  
 I do not intend, and it would not be appropriate for me to attempt to outline for your historical record, the entire legal context of human rights violations in South Africa, from March 1960. I am not competent so to do. It has already SOWETO HEARING TRC/GAUTENG
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been done, by the individuals and organisations who kept a record over many years of the legislative programme of the apartheid government and the implementation and application of those laws. 
 The South African Institute of Race Relations, legal authors such as Profs Tony Matthews, Barend van Niekerk, John Dugard, the reports of Sprocas Commissions and the records of many trials, they provide a record of the use to which our legal system was put by the apartheid state.
 I would like to use this opportunity to testify about one trial which took place in 1979 in the Transvaal Division of the Supreme Court.  The case was heard in the Krugersdorp circuit court before a Judge of the Supreme Court.  There were two accused; Linda Mogale and Elias Jimmy Mabaso.
 There are a number of reasons, why, as a lawyer, I wish to bring this particular trial to the attention of the Commission.  
 Firstly, the information which I give to the Commission is based entirely upon evidence which was handed in to the court and the judgments handed down by the court.
 All the relevant documentation is contained in the original court record, which was prepared for an appeal hearing before the Appellate Division of the Supreme Court of Bloemfontein.  The records are now stored in the archives in the library of the University of the Witwatersrand. 
 Secondly, this case is a typical example of the circumstance, of the arrest and the detention of South Africans by the security branch of the South African Police.
 Thirdly, the detention and the torture of Lindy Mogale by the security police was fully documented in the trial and it was found, by the Appeal Court in Bloemfontein, to have 
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been committed. 
 The case is a powerful example of how the law of South Africa was used by the apartheid regime to create the lethal environment which was necessary for human rights violations and which allowed such violations to go unpublished.
 There is another reason why I testify to the Commission concerning this particular trial.  Linda Mogale was accused No 1.  It was his detention and his torture in detention which occupied most of the trial.  Linda was murdered on his release from jail. He is not here to testify before the Commission.  I would like to do so on his behalf.
 Linda Mogale was born on the 9th of August 1960.  He lived at 7005 Villacasi Street in Orlando-West, Soweto.  Linda was a student at Meadowlands High School.  Linda was elected to the Soweto Students Representative Council some time after May 1977. He was then elected chairman of the SSRC in September of that year.  The SSRC was banned and it was declared an unlawful organisation on the 19th of October 1977. 
 In January of 1978 Linda was invited to join the Soweto Students League, by Jimmy Mabaso, who later became his co-accused and who had been elected chairman of the SSL.  
 Linda Mogale was detained by the security branch on the 3rd of May 1978 at St Matthews Anglican Church in Mdeni.  One of the arresting policeman was a Sgt Matthee from Protea. Linda described his arrest to the court.
"Matthee and his colleagues beat me with their fists, kicked me and then took me to one of the cars they were travelling in.  That is a maroon Valiant car.  While they were assaulting me some of
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the elders who were present at the church objected to their actions on me.  While objecting, the policemen just told them to mind their own business and I was taken into the car."
 Linda was then taken to Protea police station and he told the court:
"At the police station I was taken into an office and in the office I was assaulted.  The police used their fists. They hit me with their fists and I had a little chain which was given by a girlfriend of mine, which was used to strangle me, and it left some scars soon after it broke off. It left two scars on my neck."
Linda then continued with his evidence:
"After some time one of the policemen came with a pair of pliers.  While I was pinned down to the ground and a man known as Mohage had joined them, a Black sergeant known as Mohage, had joined them in assaulting me and beating me up.  I was told they were going to soften me up, they were not going to play with me. I had given them a lot of, I had wasted a lot of their time.  So a pair of pliers was taken by this chap Matthee.  Sgt Matthee, he took a pair of pliers and while I was pinned to the ground by Mohage, an attempt was made to pull out
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two of my teeth. Then I struggled until both my teeth had broken down.  After this I was hit continuously until I fell unconsciousness. On regaining consciousness I found some electrodes on my bed and a flow of electric current was running through my body. In other words, electrical shocks were applied on me.  In fact, I had a notion, a sort of hallucination of bad things happening.  In other words, my vision wasn't quite clear at the time.  So after some time I was visited by Mohage and thrown into the maroon Valiant."
Evidence was given at the trial in support of these allegations of assault.  Two members of St Matthews Church gave evidence on the manhandling when Linda was detained.  One witness was at Protea police station where he saw Linda Mogale with broken teeth, a limp and with a swelling above his eye.  Another member of the church saw the detention of Linda Mogale.
"That policeman who had grabbed him, I saw him smack him with the open hand and while the other two hit him with fists on his stomach."
This witness heard Linda Mogale crying and screaming in detention.  The witness himself was assaulted.  
 Mrs Mogale gave evidence that she received the clothes of her son, which gave her a great shock.  The clothing was soiled and the trousers were torn and especially his T-shirt had some brown spots.
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 The evidence of the district surgeon who examined Linda Mogale while he was in detention, was that the medical examination showed a perforation of his right ear-drum. Linda admitted that he had been assaulted.  Linda also told the district surgeon that he was given electric shocks on the neck and hip and hit in the teeth.  The doctor admitted:
"I gave no medication for the broken teeth."
At the trial a dentist in private practice gave evidence that he had examined Linda Mogale at the request of his lawyers, and found that the two central teeth were fractured.  The dentist said:
"In the right one the fracture goes from the midline up to the side, but the biting surface is still there.  This is exposed dentyne.  The second tooth, the line is horizontal and is above the halfway mark of the crown. He has lost almost two thirds of the crown.  This often happens when a person receives a blow and the blood in the nerve, the pulp is pushed into the dentyne.  This also happens when force is applied.  The tooth fractured and some of the pulp, that is the nerve, is exposed."
The doctor concluded:
"These two fractured teeth are the result of some form of trauma.  So what I have said that everything I have seen appears consistent with at least two fractured teeth having resulted from the
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use of incorrect instruments or an instrument incorrectly applied. It looks to me as if an instrument has been applied across two teeth."
The doctor went on to state:
"The exposure of that dentyne, that is the sensitive part, that must have caused the patient excruciating pain without medication. If he has no medication it will cause excruciating pain. If he had medication, if something is applied, that will relieve his pain, or until his nerve dies or the nerve moves away and lays down secondary dentyne. This could last anything from two weeks to three months.  For instance, if the patient breathes in and out the difference in temperature will be excruciatingly painful. If you touch it - one very often has to be careful, if you touch it the patient nearly hits the ceiling.  Thirdly, chemicals, for instance anything like salt, sugar, anything sweet, chocolate, that would give excruciating pain."
When Linda Mogale was finally taken to see a magistrate, he had been in detention and subjected to continuous assaults over the period from the 3rd of May until the 23rd of May 1978.  
 Before being taken to a magistrate he was instructed by Capt Struwig as what he was to tell the magistrate.  
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"Capt Struwig then told me about the tape recorder on his desk.  He told me he was going to give it to the magistrate, and if I asked if I minded it being switched on while I was making my statement, I was to tell the magistrate that I didn't mind at all. I should be clear that I should not mention the assaults by him, and he told me that I shouldn't in any way try to be clever and trick him, because through this tape recorder he would know that I had tricked him and he would give it to me.  That is he would continue with the assaults on me."
The evidence at the trial was that the detainee was brought to the magistrate by the security branch and that a tape recording machine was indeed handed in to the magistrate by Det-Sgt Struwig of the security police, who requested that use be made of this machine while the statement is taken down.
 Linda Mogale was visited by several magistrates during his detention. On only one occasion did Linda complain to a magistrate and he gave the reason:
"As I say it was the first time since magistrates have been visiting me, that I was called to the office of the cells instead of the magistrate coming to my cell.  What I am trying to show to his Lordship is that the difference is that the magistrate came to visit me and came
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straight to my cell to see me and to talk to me there.  But this particular magistrate, whose name, if I am not mistaken is Mr Van der Merwe, he called me. In other words he sent somebody to the cell to come and fetch me. I was taken to the office of the cells there.  Then he had an interpreter who was a Mr Nkosi, if I am not mistaken. Both of these people were quite friendly with me. They offered me some cigarettes.  They introduced themselves to me.  The magistrate told me why he had come to see me and assured me that I could trust him and told me that I was to be free and speak to him freely.  He even offered me a chair and I sat down and we spoke.  It was then, because of his friendly manner, because of his freeness to me that I came to tell him of my assaults.  He even insisted that I take off some of my clothes so that he could see whether my scars were on my body, which maybe I had forgotten or which I had forgotten.  So I showed him my body and also my teeth. After I had explained to me, he told me that he would try to do all things possible to see to it that I wasn't assaulted again.  He even went to my cell and he checked whether it was clean and he told the police there that
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I had some needs. I needed some toilet paper and he told me to get toilet paper and some soap.  The magistrate told Linda that he would try by all means to make certain that I wasn't assaulted again."
 Linda Mogale first appeared in a magistrate's court on the 12th of September 1978.  He was not represented in court by an attorney.  At his trial an attorney gave evidence that she had been instructed by the South African Council of Churches to represent Linda while he was in detention. She then informed the South African Police.  
"During June Lieut Van Coller, who was in charge of the interrogation, told me that Linda Mogale had already appeared in court and that his case had been remanded to 17 July."
When the attorney said that she wanted to consult with her client -
"Lieut Van Coller told me I would need a permit from the West Rand Board to come and see him at Meadowlands.  That subsequently turned out that it was not true."
Linda Mogale had not appeared in court and he was still in detention.
 Some time after Linda Mogale finally appeared in court, he was faced with three counts of murder, three counts of arson, charges under the Terrorism Act and the Sabotage Act.   The charge sheet was based on an allegation that the Soweto Students League had conspired with individual persons SOWETO HEARING TRC/GAUTENG
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and with an organisation known as Psycho to overthrow the lawful authority in the Republic.  At the trial the prosecution lawyers handed in a document, purporting to be a confession statement made by Linda Mogale.  The prosecution lawyer told the court that the statement on the face of it, appeared to be a confession that was freely made.
 However, written on the document itself, were certain questions and answers which had been put by the magistrate to Linda Mogale.  They were as follows:
"Question:  Have you any injuries to your person?
 Answer:  Yes, I have two teeth missing.  When I was interrogated I was manhandled.  At Meadowlands I was nearly every day manhandled and interrogated."
On the document the magistrate had made a written observation:
"Two teeth broken, no other injuries visible."
During the trial Judge Fritz Steyn disbelieved the evidence of both of the accused, the doctors, the State witnesses, or he placed a different interpretation thereon. He found that the confession statement made by Linda Mogale was freely and voluntarily made by him.  It was therefore admissible as evidence against Linda Mogale and it was sufficient to convict him.
 A number of young people were called by the prosecution to give their evidence.  At the time of giving evidence these witnesses were detained in terms of section 6 of the 
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Terrorism Act.  They had been so detained in the majority of cases for periods longer than a one year.
 They gave evidence, without the benefit of any legal advice or representation and with the certain knowledge that they remained in detention in the hands of the security police.  The witnesses were also subject to the threat that they could be convicted and sentenced to serve a term of imprisonment not exceeding five years if they did not give satisfactory evidence.  The witnesses who gave evidence alleged that they had been assaulted.  Some of them stated that they had seen Linda Mogale being assaulted.  
 More than one witness gave evidence that he had made a statement in detention implicating Linda Mogale in the offences with which he was charged, but said that the witnesses' own statements were untrue.
 For example, Sibosiso Tshabalala gave evidence as follows:
"While I was talking to Sgt Matthee and looking him, when next I felt something being pulled over my head. It was a sack, a bag and both my arms were taken to my back, held behind me.  Water was poured onto this bag. I couldn't breathe.  On that stage I was on the floor, lying on the floor, and I felt some burns, some shocks against my neck.  Now they were saying throughout this process are you now going to tell the truth, are you now going to tell the truth.  If you do, then nod with your head. I then nodded, indicating that I
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was going to tell the truth.  Thereafter this bag was removed from my head and I told them."
 Sibosiso Tshabalala was in detention for more than 12 months.  At the time that he was detained he was 17 years old.  He was not called as a witness for the prosecution. The statements that he had made in detention could not possibly have been true.  
 At the trial his grandfather, Mr Simon Tshabalala who was 90 years old, gave evidence.  Sibosiso had been at home in Natal on the night when he had told the security police that he had been involved in criminal activities in Johannesburg. His untrue statement was made as a result of police assaults and lengthy detentions.  
 Sidwell Khakula gave evidence on behalf of the State, while he was still detained in terms of section 6 of the Terrorism Act.
 On his release from detention he sought legal advice and representation.  Sidwell returned to court and he gave evidence that the previous evidence that he had given to the court while in detention was not true.  He had given this untrue information to the court because he feared further assaults by the security police.  The Judge rejected his new evidence.
 The Judge, of his own accord, then made a ruling, that the evidence given in court should be in camera.  That is that the Press and all persons, save court officials should be excluded from the court, even the family of the accused.  This decision was based on the Judge's experience in other cases, where he believed that it had happened that witnesses made allegations that they had been assaulted by the police, SOWETO HEARING TRC/GAUTENG
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the allegations were then published in the Press and read as if they were accepted facts.  The Judge said that he would ensure that in cases where such instances of police maltreatment were expected, then the allegation should be heard in camera.
 It was only if the Judge found that the allegations against the police ...