Human Rights Violation Hearings — Durban — 1996-05-09

MR DLAMINI: 14B/12 themselves and try to campaign, he was sentenced and he was executed.  There was obviously a lot of hostility and anger, and people were crying out for revenge, and I think I must mention that during even a short recess in court a member of the public went up to him and assaulted him and that was the kind of atmosphere that existed at that time.  Many others before and after him were executed on the orders of judges, as it was, and a lot of political activists and detainees who were tried and were sentenced to death were saved because towards the latter part of the 1980s campaigns were conducted, largely at the international level, which highlighted the plight of these people who were sentenced to death by this regime and many, many of them were saved, and one can highlight the example of the Sharpeville six, which received a great deal of international attention.  There were judges as well who did not impose the death penalty and they were a tiny minority, but what one found was that in the nature of the insidious set-up that operated in this legal system was that these judges who were known to be partial to the struggle of the people in a way, or slightly sympathetic or not happy with the erosion of the rule of law, these persons never or hardly ever handled a serious or contentious political case.  And, amongst all the progressive lawyers in this country, I believe, it was a common fact that specific judges and magistrates were selected to deal with political cases and others were bypassed if they were seen to be neutral.  One of the judges who come to mind is the late Mr Justice John Milne, who was a Judge of Appeal when he died.  He had acquitted many activists in a long drawn-out case and it was the

MR DLAMINI: /treason

MR DLAMINI: 14B/15 treason trial held in Pietermaritzburg and whilst being Judge President he encouraged a liberal approach, which was different from the other provincial divisions of this country during the mid-1980s, during the height of oppression.  And one recalls in Pietermaritzburg, in particular, many interdicts were granted against the warlords of that region and liberal interpretations of the harsh, repressive legislation were given by certain judges in this province and this eroded a lot into the apartheid thinking and the apartheid jurisprudence.  This was obviously unacceptable to those in power and Judge Milne, being the brilliant and the kind person that he came across as, was conveniently, in our opinion, promoted, as it were or called to higher office and was taken to the Appellate Division, where he was made an Appellate Division Judge and in the Appellate Division he was neutralised with about 11 to 15 judges with a Chief Justice that was unsympathetic to the cause of the people and, in effect, that was the end of Judge Milne in terms of the influence that he could have brought to bear on the judiciary of this country and he was not heard of again until his death.  After Judge Milne had left - again this highlights how the judiciary were manipulated - another judge, who was next in line for appointment, was a person who was perceived to be of the similar liberal type.  He was overlooked for appointment as Judge President, very deliberately, and a judge whose reputation as a person - as a system person - and this was an amendment I had made to my earlier document, please - whose reputation as a system person preceded him, was appointed Judge President and in this province the status quo was restored again.

MR DLAMINI: /I want

MR DLAMINI: 14B/16 I want to touch on another case of how the judiciary worked and that was, again the case of the late Mr Joseph Mdluli.  He was killed in detention.  Different from all other examples of murders in detention, here the person or persons allegedly close to him while in detention were charged and were tried in the Supreme Court, and one may ask, "Why did this unusual event take place?"  Well, what had happened was when this detainee - when he was killed, Mr Mdluli's body lay in a mortuary of an undertaker.  This undertaker, who was also a sympathetic person to the struggle, had seen his body and had seen the wounds on his body, took photographs and brought this to the attention of people, lawyers and others, to say that this is what had happened to this person.  Through the underground network these photographs reach London.  They were published in newspapers in London and had gained international attention.  In many ways that forced the Government of the day and maybe the authorities to show that, "Yes, we don't condone murders of political detainees, so we should charge someone", and that person -a senior security branch police officer, was charged with one or two other policemen who were his juniors.  Of course, the security policeman was not found guilty and the persons were acquitted and in a broad sense the finding was the detainee had injured himself and died while falling off a chair.  Now, we know many of our leaders today had escaped sentence of death as a result of maybe a change of heart by some judges, but many others were sentenced to death, but those leaders who escaped are very prominent in leading our country into a democratic future and one may well ask what role those who were

MR DLAMINI: /sentenced

MR DLAMINI: 14B/19 sentenced to death could have played in the rebuilding of our nation.  Now, that doesn't leave us at the point where we just need to focus on the judges.  One must look at the whole apartheid legal system and I don't want to go into too much of detail here, just to highlight the different categories of people who played a role in making all the evil of apartheid go smoothly in those dark days, and I would highlight the role of the attorney-general and their staff and the many advocates who worked under them, who relished their task in prosecuting political trials, where they really tore into people who were put on trial and used every means possible to secure convictions.  The second categories is the state attorneys and their staff, who defended and covered up for police brutality in thousands of civil claims over the years and who provided the legal defence for perpetrators of violence against people during those days.  The many senior magistrates - this is the next category - in the regional courts, who did as much and more than the judges in the Supreme Court in terms of the volume and their enthusiasm.  Justice in the lower courts was not meted out with the finesse of the Supreme Courts in those days.  One does not have to remind ourselves of the post-mortem hearings and the mockery that they made of justice in this country, where all the detainees who were murdered were subjected to this sham of a post-mortem hearing.  The cases of Steve Biko, Ahmed Timol, Dr Haffejee, Neil Aggett and many other detainees who were tortured to death.  This reinforced the violence of apartheid and gave support, protection and gumption to the foot soldiers and policemen of apartheid.  What about the Law Societies and the Bar Council, which were the

MR DLAMINI: /legal