children in South Africa. Many intelligent, ambitious children, willing to work and to strive. Many who yearned for escape, release, transcendence from constricting material circumstance and poverty.
What made me different from most of them was my skin colour. What made me different was that the country was structured to privilege me while systematically disadvantaging others. What saved me from poverty was that I was white. After nearly five years in the children’s home, and a series of further schools in various parts of the country, my mother, despite her own poverty, managed at last to secure me a place in a first-rate government high school for boys. Set on a hill overlooking Pretoria’s most affluent suburbs, Sir Herbert Baker’s early twentieth century buildings were designed to epitomise the grace and dignity and scholarship appropriate to questing male adolescence. Arriving on the first day shortly before my fourteenth birthday, I felt nearly suffocated with apprehension and excitement. I craved all the elegant learning Pretoria Boys’ High School seemed to offer, and all the opportunities beyond that. I could hardly believe that all this had become available to me.
The school changed my life. What I learned there – perhaps even more importantly, those I met there – gave me access to rich opportunities. These included the fulsome Anglo American Corporation open scholarship that enabled me to study law and English and Latin and Greek at Stellenbosch (a lovely university town near Cape Town whose oak-lined streets are filled with Cape-Dutch architecture), and later one of the world’s very best openings – three years at Oxford as a Rhodes Scholar. Back from Oxford, I joined the Johannesburg Bar as an advocate. But in the growing crisis of apartheid a commercial practice did not attract or satisfy me. It seemed imperative that if law should survive as a way of regulating social conflict in South Africa – if it deserved to survive at all – more lawyers should get involved in fighting injustice in the courts and by offering legal advice and support to organisations and individuals resisting apartheid. Through November 1985, as I packed up my fledgling commercial practice to move to full-time work as a public interest lawyer at the University of the Witwatersrand’s Centre for Applied Legal Studies, I closely followed reports about a murder trial that, twenty-five years after the original Sharpeville tragedy, was once again bringing that name into resonant public prominence throughout the world.
The gruesome murder on 3 September 1984 of Jacob Kuzwayo Dlamini, an apartheid-structure councillor, by an enraged crowd of town-ship residents, produced a grim atmosphere when eight Sharpeville residents were put on trial for their lives in 1985. Defence advocates told of a hostile judge and a determined prosecutor. Even so, when six death sentences were pronounced in December 1985 (two of the accused were acquitted), they came as a shock. For my own part, I knew that, beyond any question of individual moral accountability, the underlying iniquities of apartheid were to blame for the growing cycle of violence that was sweeping the country. As a white South African, I saw that the executions would only add to the injustice and resistant rage that apartheid had spawned. And as a human rights lawyer, the way in which the courts I operated in daily dealt with the case left me appalled and angry.
The trial judge sentenced all six to the gallows, even though the prosecution could not prove that the actions of each had actually contributed to Dlamini’s death. The case of one of the condemned six shocked me particularly. Fearing for his life, the embattled councillor had fired a shot that wounded one of a hundred-strong crowd surrounding his house. In response, a young woman named Theresa Ramashamola was found to have shouted: ‘He’s shooting at us, let us kill him.’ Others certainly heard her. But in the hubbub, who could say that her cries had actually heightened tensions, incited the perpetrators, hastened the murder? The court heard no such evidence. Later, when someone pleaded that the injured councillor should not be burned, Theresa slapped her. For these words she was not only convicted of murder but the judge refused to find ‘extenuating circumstances’, which would have permitted a jail sentence. He sentenced her to hang. I was aghast.
The case of another accused appalled me as much. None of the witnesses placed him on the scene of the crime. Unlike the other accused, he was arrested more than two months after the murder. One of those directly linked to the murder took the police to his home to retrieve the dead man’s firearm that the killers had wrested from him in his dying moments. When confronted by the police, the accused man readily produced the weapon from a hiding place in his ceiling. He had taken it, he claimed, from youths who were nearby on the day of the murder. He denied being present at the murder.
The judge disbelieved his evidence – he had lied about events at his house; he couldn’t explain why the other accused knew that the firearm was with him; and in court he falsely disputed that the weapon produced in court was identical to the one he had retrieved from his ceiling for the police.
Was this enough to hang a man? Was this enough to conclude beyond reasonable doubt that he was the very man who had wrested the deceased’s firearm from him in his death struggle? Did his lies together with possession of the crucial weapon prove that he was one of the killers? Surely not. The firearm was retrieved from him nine weeks after the murder. English judges had developed a logical way to link someone caught red-handed with an incriminating object to a recently committed crime. South African judges adopted it – the ‘doctrine of recent possession’. But it had never been applied after so long a delay. No civilised system, I thought, could do so. After nine weeks the possessor of the incriminating firearm could not possibly be described as ‘red-handed’. And however many lies he told, there was a substantial – and, I thought, obvious – chance that he had come into possession of the dead man’s weapon in a way that did not implicate him in the murder.
Well, why then did he lie? South African courts treat a lying accused with scant sympathy. But a number of authoritative judgments warned that a criminal defendant might lie for reasons other than that he was guilty. In the case of this accused, it seemed more than reasonable – indeed, I thought, obvious – to assume that he might have lied about when and how he got the firearm because he didn’t want to implicate the co-accused who had brought the police to him. To exculpate himself, he would have had to say, ‘I took the weapon from him and agreed to hide it in my ceiling because he told me he got it from the dead man at the time of his murder.’ Was it unreasonable to suppose that the motive for his trivial lies was a reluctance to ‘snitch’ on his friend – particularly given the fraught racial and political tensions surrounding Dlamini’s murder and the police investigation?
To me the verdict seemed an outrageous curvature of the laws of logic and fairness – a miscarriage of justice symptomatic of the extremities apartheid was inflicting on the legal system.
But the trial judge decided otherwise. And five judges of appeal in the appeal court in Bloemfontein confirmed his verdict. Incensed, I became vocal in an international campaign to save ‘the Sharpeville Six’. I wrote an article for a scholarly journal. I addressed meetings. I spoke to foreign correspondents posted to Johannesburg. Three weeks before the six were due to stand on the gallows, after the government had refused to commute their sentences, I attacked the verdicts in an opinion piece in the mass-circulation Johannesburg Sunday Times. I pointed a finger at the appeal court for ‘widening the doctrines of criminal liability in response to evidence of township revolt’. My criticisms were quoted in London newspapers, where a distinguished former law lord, Lord Scarman, and a senior British barrister who observed the trial, Louis Blom-Cooper QC, also attacked the outcome. When one of the prosecution witnesses recanted his evidence, the unflagging lawyer for the six, Prakash Diar, asked me to join the team fighting for their lives by applying to reopen the case.
But those defending the courts’ verdict counterattacked. Chief Justice Rabie was greatly offended. He sent a message through Judge-President Moll to the Johannesburg Bar Council, asking the body to institute disciplinary steps against me. To its credit, the Council voted overwhelmingly (though not unanimously) against any sanction.
The year before, the minister of justice in State President PW Botha’s cabinet, Kobie Coetsee, had attacked me for accusing three prominent judges of pro-apartheid collusion. His official statement slated me, ‘the
