Special Hearings — Legal Hearings — 1997-10-27

PAULA MCBRIDE: Okay. My focus today is going to be on the judges and the role that they played in the imposition of the death penalty and it is not, I am not a lawyer so it is not a legal submission, it is a submission that hopes to place the responsibility of the death penalty on the shoulders where that responsibility belongs, which I believe is on the shoulders of the judges in this country.
 I think it is generally accepted, mostly accepted, that the law in this country has been grossly unjust. It was designed to comfort, benefit and protect the minority of people in this country and to denigrate and to repress the majority of people.
 It would seem obvious that those people who dispensed justice in this Country, i.e members of the Judiciary when they did so in a country with unjust laws, they dispensed injustice, there can't be any other conclusion that anyone could come to. They enforced every single aspect of apartheid, from the most petty and degrading to the most murderous and genocidal. They sent people to jail or to the gallows knowing full well that they had not had a competent defence, they accepted statements that had been secured through torture, they enforced legislation that silenced the Press. They presided over Commissions of Inquiry that whitewashed Security Forces excesses and corruption. They punished opponents of their system, and I say "their" systems very deliberately because it was their system, with the harshest array of cruelties including banishment, house arrest, hard labour, lengthy jail sentences and where they could, with the sentence of death.
 Even within the unjust laws judges often went that very extra mile to go beyond the laws themselves and I think that two cases highlight that, highlight the uneven and the biased way in which laws were dispensed by the judges. In the one which I will deal with later is the case of Sibusiso Andrew Zondo, who was sentenced to death. He was a young teenager at the time, he had seen terrible injustice, he had been prey to terrible injustice, he had seen friends killed and then acting with ANC structures he planted a bomb that killed five people. He would have been a candidate for amnesty today had he been alive. Judge Leon, a leading liberal judge at the time, could find no extenuation and he despatched him to his death.  In the other case during the same time period an elderly farmer who was irritated with children who were trespassing on his farm, chased the two children who were aged 5 and 9 with his truck, he drove over them repeatedly back and forwards just to make sure that they were dead and the judge in his case who used the same legal system, the same precedents he found that the man's age of 70 was an extenuating circumstance and he was given a suspended five year sentence. He never saw the inside of a jail cell and these are the judges who we are not seeing at the moment because all they did was interpret the law.
 Before I even get to the death penalty, the major problem that I have, and I say this as a lay person, is that the Judiciary stamped the respectability of their learning onto the oppressive system in this country. They, I think in many cases did far worse than the police, because they were one and all, they were so-called learned men, they came there with the robes of their office and the sanctity of their being and they were educated enough to understand that what they were doing was wrong, but they have managed even up till today, up till this hearing to preserve and propagate the absurdity that they were somehow impartial, that somehow they were above it all and the Judiciary's role in our country made them far more valuable to the fortification of apartheid than a thousand Vlakplaas farms could have done.  It gave the system a veneer of respectability which the state could flaunt to the outside world and it added steel to the hand that crushed the people of this country.
 I think the reason for me coming here today is, and I can say it at the end if it is easier, but it is to ask the TRC why it is that the judges are not being subpoenaed to appear before the Truth and Reconciliation Commission to account for what they have done in our history. They were instrumental in so many things, the leaders of our liberation movements have been subpoenaed to appear before the TRC and I think that it is imperative that stronger action is taken to get the Judiciary in this country to come forward and to account for what they have done.
 I think with regard to the death penalty, I have examples in my submissions but I am only going to use two because otherwise it is too long, but I have copies available if people want them. The elegant and the pristine judges chambers are very, very far removed from the bloody mess in the gallows chambers and yet the link between them is so strong that it needs to be made. 
 It wasn't the prison service or the hangman or the State President who put people into death row, it was the judges in our country. Between 1961 and 1990 all the judges in our country were white, 99 percent of them were male, and almost without exception they were drawn from the ranks of privileged and power, highly educated one and all. In accepting positions on the bench, they accepted among other things, the task of interpreting and applying racist and oppressive laws and they accepted that they would be empowered to sentence other people to death.
 The death penalty was available for a number of crimes and it was mandatory for murder where there was no extenuating circumstance, and I want to just dwell on that briefly, because I think that the question of a mandatory death sentence is entirely misleading.
 It was mandatory for murder only when there were could be found no extenuation. The question as to whether or not extenuation exists was left to the judge and to his assessors. This was the judgement that they made and this was discretionary, this was not mandatory. No one told them how, there were guidelines on extenuation, but there were many judges who found extenuation and many judges who never found it.
 Judges were allowed to hide behind the letter of the law and shift the responsibility for their decision onto the law. The fact of the matter is that if judges did not want to pass the death penalty they did not have to. 
 Judge Raymond Leon who had himself passed the death sentence said as much, "Why should a man's life depend on the chance of which judge he appears before." Some judges find extenuating circumstances more easily than others and I know one judge who has been on the bench for many years and has never passed a death sentence.
 Judge Leon, and I am going to deal with him as an example, I deal with others, but because I am going to deal with the Andrew Zondo case he was converted to abolition and in his own words "Only after sentencing between 12 and 18 people to death". Now most people who have murdered or killed remember how many people they have killed, not so in the case of Judge Leon, they had the luxury of passing on the job of death to others. Judge Leon never went into the execution chamber, he didn't pull the lever that opened the trap door and he never washed the bloodied white hoods worn by the condemned. It wasn't judge Leon and his brothers that had to teargas prisoners out of their cells and drag them up to the steps of the gallows, he never had to go outside the wall of the prison and inform family members that the job had been done.
 If he had done this maybe his memory would have served him better. This was a judge who sentenced Andrew Zondo to death for his role in the Amanzimtoti limpet mine attack in which five people were killed. Andrew was hanged on the 9th of September 1986 with Lucky Piya and Sipo Zulu.
 At the time he planted the bomb he was 19 years old. When he was hanged he was 20 years old and Judge Leon and his assessors decided that in his case there was no extenuation and that he deserved to die. The limpet mine that caused that explosion was detonated by two people, one who is known as Mr X, was 35 years old and the other Andrew, was 19 years old. The limpet mine had been supplied by Mr X, who was senior to Andrew in the Liberation Movement and he accompanied Andrew to the site. The act was carried out in retaliation for an SADF raid into Lesotho that had killed nine innocent civilians.  Mr X became a star witness described as an excellent witness on more than one occasion by Judge Leon. He received full indemnity from the Court for his actions and he walked out a free man. Andrew who freely admitted to his role in the attack received the death sentence. 
 Judge Leon has been quoted as asking himself questions during his sleepless nights after sentencing that maybe he should have asked himself before he passed the sentence. These are questions that reach into the heart of the debate around the death penalty and I am reproducing them in full here, would the outcome have been the same if the counsel had been more competent? Had he asked all the questions he should have asked? Had he interpreted the case correctly? Did he know enough about the accused's background? Had the defence investigated the case fully? What possibility for error existed? And why should a man's life depend on the chance of which judge he appeared before?
 Sadly he asked these only afterwards. He instead accepted fully the version of events given to him by a person, Mr X, whose integrity he should have questioned, a person who turned State witness to protect his own skin. The behaviour of Mr X's in sharp contrast to that of Andrew, who in an effort to protect him told police and the magistrate that he had acted alone. In summing up Judge Leon ...(tape ends) ....we are unanimously of the clear view that the extenuation is not present. He then passed the death sentence, not once, but five times ending with the kind words "May the Lord have mercy on your soul."
 This incident, and I want to highlight it, arose from the incident of the December 19th 1985 SADF raid and the outcome of the two incidents were very different. On December 19th under instructions from their political leadership an SADF squad crossed the Caledon River into Maseru and killed nine South African refugees who were at a small party. The perpetrators of these murders have never been identified, prosecuted or sentenced. There was no prosecutor as in the case of Andrew, to prosecute them and describe them as of evil mind and there was no Judge Leon to decide whether or not they had gone to Maseru with the intention to kill. The families of these victims have not been afforded their day in court and for all we know these particular murderers are alive and well.
 On the 23rd December 1985 the retaliatory act was carried out and the person who carried it out, Andrew Zondo, was declared to be a man, albeit 19 years old, of evil mind by Mr Ross Stewart the prosecutor.
 Judge Leon decided, in what I would term arrogance, that there was no other court that would reach a different decision and so he was refused leave to appeal. Unlike the soldiers who entered Maseru on the 19th December, he is no longer living. He was sentenced on the 9th September 1986 and Andrew Zondo said himself at the time, 
"I listened to the prosecutor and I saw that he did not have any ideas about us, he was ignorant of our ways and our feelings, and I looked at the Judge and the prosecutor and the thought came to me that they were ants and engaging with them we were dwarfing ourselves. It is a curse to be a judge when you believe that you hold the life of a person in your hand."
 There are many stories that need to be told of people who were sentenced to death by judges and I am going to just deal with two very briefly because I know you are on time. 
 One is the case of Michael Bini Matle. Michael Matle was tried, convicted and sentenced to death in the Lichtenberg Circuit Court on August 26, 1988. It took precisely a day from the time he entered the court to when he left it with the sentence of death. The sitting judge was Justice D Van Zyl. When Michael Matle appeared in his courtroom he was given five minutes to decide whether or not he wanted the pro deo lawyer appointed to him. He decided to dismiss the advocate. He didn't give evidence in his own defence nor in mitigation of sentence and he called not witnesses. 
 He was accused of murdering Brenda Sebotse who died as a result of stab wounds on May 17th, 1987. In a statement to police soon after his arrest, Michael Matle said he had left a stokvel that night with Brenda and they were on their way to his parents' house. She changed her mind and they argued and in the tussle he had stabbed her with a knife. 
 In his summing up at the end of the one day trial Judge van Zyl said the following: 
"The accused did not take the court into his confidence by giving evidence and in the absence of any other evidence the Court finds that there was direct intent to commit murder".
he then sentenced him to death.
 In one day with no evidence before him of who Michael Matle was, where he lived, who his family was, whether or not he had schooled, what influences came to bear upon him and what his life had been like, Judge van Zyl decided that Michael Matle was no longer fit to live. Judge van Zyl is a highly educated man, no doubt with family and friends of his own and a life that was full and complex, regarded the life of Michael Matle as the life worth so much less than his own. His search for extenuation took him no more than a few minutes.
 The judges as I say are too many to name here and more academic papers than mine will have dealt with those but I want to deal briefly with one particular case that was a common purpose case, just to demonstrate something on the judges. The most famous of the common purpose cases are obviously the Sharpeville Six and the Upington 14 and I have dealt with these in my submission, but I want to look briefly at the Queenstown Six, less known in our history.
 Six young men were sentenced to death by Justice Kroon in Port Alfred, June 24, 1987. They were found guilty on the basis of common purpose of the murder of Nazipo Zamela. They were sentenced to death and sent to Pretoria maximum security prison. Within six months of being there, one of the accused Wantu Salinga had died of TB and this was in a prison which boasted a doctor in daily attendance and a diet devised by qualified dieticians.
 On May 23rd 1989 a re-trial was ordered due to a technical irregularity in the first trial. Now there were only five as Wantu had died. They were retried by Judge C Jansen, same facts, same defendants, different judge. They were sentenced to an affective 20 months each in prison which they had already served. A big difference between this sentence and the death sentence, except to Wantu Salinga. And as I say I don't want to go into much more detail, I just really want to leave with the, as to what the TRC can do which is what I said at the beginning, is that I very strongly believe that the Judiciary in this country must not only be invited to come and make submissions to the hearing, I think that where they refuse the invitations they must be subpoenaed to appear and to give an account for themselves. Thank you.