court’. He dismissed my criticism of the judiciary as ‘distasteful and improper’. He added for good measure that I appeared to derive ‘some sort of misguided pleasure from denigrating great Chief Justices’. Now at a national Bar conference Chief Justice Rabie himself condemned my criticism of the verdict, saying it was little short of ‘shocking and disgraceful’. In a later case the appeal judge who authored the Sharpeville Six judgment took the unprecedented step of responding to the criticism, saying that he had ignored ‘the misguided comments of hysterical politicians masquerading as lawyers’. It was a bad jibe. But what it showed was that criticism of the verdict had certainly found its mark.
I refused to apologise. There seemed to be nothing to apologise for. My criticism to me seemed well justified – even mild. It stood out only because during the 1980s few lawyers in practice or at universities within South Africa dared to criticise apartheid judges. At Wits University, two gifted colleagues, Etienne Mureinik (who later died tragically by his own hand) and Carole Lewis, wrote to the press defending my right to criticise. And they organised a colloquium to discuss my intervention. But from other legal and academic institutions there was mainly a deathly reverential hush. Books critical of the South African legal system, by lawyers associated with the exiled African National Congress, were prohibited from circulation. In this near vacuum, outspoken challenges resounded loudly.
Instead of backing down from my public criticism, I threw myself into the court bid to reopen the case of the Six. The recanting prosecution witness had earned them a merciful reprieve. The afternoon before they were due to hang the trial judge, in a lifesaving fit of doubt – aware no doubt of the international outrage – granted them a temporary reprieve to plead for a new trial. Shortly afterwards I visited them on death row. In the corner of the cramped warder’s office where we met there was a scale. Next to it stood a vertically adjustable wooden device with centimetre markings. They told me that the day before their scheduled execution the hangman had carefully weighed and measured them. He had to calculate exactly what length of rope was necessary to kill each of them efficiently.
In the 1980s, South Africa had one of the highest number of recorded hangings in the world. In 1987, no fewer than 164 people were hanged. One almost every second day. Executions were carried out in a severely guarded, bleak new cell block in Pretoria’s maximum security prison. I visited death row only three or four times. Each time I left chilled within. To reach it one had to cross a final quadrangle with painstakingly nurtured lawns and flowerbeds. Inside, the windows were vertical slits, the interior drably painted, the atmosphere one of controlled desperation. In the courtyard outside, the warders kept ducks. Perhaps their necks were never wrung.
While the Six remained in their cells on death row, Sydney Kentridge, the famed South African advocate then gaining prominence at the London Bar, flew back to present the argument. We lost. But Chief Justice Rabie and his appeal court colleagues gave us a respectful hearing. And as so often under apartheid, a legal challenge, even when it did not attract a favourable judgment, helped to secure a favourable outcome. The court bid bought the six vital time. The Sharpeville Six, too, would have a second chance. Even though the legal challenge had failed, the apartheid government could no longer afford to hang them. The international outcry had saved their lives. It had also saved the country from the explosion that was certain to have followed their executions. It had also saved, I thought, the South African judiciary from the irremediable ignominy that the deaths of the Six would surely have earned it.
In late October 1997, travelling the busy highway through the industrial heart of South Africa to start the Vereeniging circuit, I, too, yearned for a second chance at life. I was now part of the judiciary, one of the first High Court judges President Mandela had appointed in 1994 under the new democratic constitution. I wanted to fulfil my duties. And I wanted to concede as little as I possibly could to the disease that now threatened to stifle my life. The cases on the court roll that October/November in Vereeniging presented all the problems and pains of our nascent country’s transition from an unjust past to the better future to which we all – lawyers, politicians, judges, people – had committed ourselves. I wanted to be part of it.
The first case my assessors and I heard involved a vigilante killing. A family claimed that the victim had murdered their uncle. They had brought the victim to their home to confront him. When he tried to escape they beat, stoned and stabbed him to death. Then they poured petrol over his body. The district surgeon told us that the flames had reduced it to charcoal. One murder had led to an even more gruesome second. My assessors and I convicted two nephews of the first victim for murdering the second. Other family members, including a sister, we acquitted, because of weak prosecution evidence. In our judgment we emphasised that justice was, or should be, the exclusive prerogative of the courts.
But mistrust of apartheid law and order had set off a grim cycle of vigilantism in many townships. Even a newly accountable police force could not perform miracles. Still too few people trusted police or courts to deal effectively with offenders. And still too few police themselves engendered that trust – as one of our next cases harrowingly showed. A packed courtroom rose as we entered to hear the prosecutor call the trial of police sergeant Jappie Masilo Twala. He faced two separate charges of murder plus two of attempted murder. When his brothers became involved in a Sunday night bar-room spat about a stolen watch, Sergeant Twala went to intervene. As tempers flared and a stone-throwing crowd gathered, he pulled out his service pistol and fired three shots. One of the shots proved fatal for a stone-thrower. When Sergeant Twala and his brothers fled the scene they left a corpse behind – that of a nineteen-year-old pupil at a local school.
Days passed. Yet the police did nothing. Sergeant Twala was not arrested. Was he immune? The dead youth’s school friends seemed to fear that he was. On the eighth day of police inaction, they gathered at a special school assembly. There they resolved that they would confront Twala themselves. They abandoned their classes. They took to the streets and forced commuter buses to a halt. They boarded them en masse, and compelled the drivers to divert to Twala’s home. Twala was out. So the crowd destroyed his home.
The house was modest but recently built, neatly middle class and well appointed. When the youths were done, it was no longer a home. In court we saw the photographs. The damage the youths had caused was literally devastating – they lit fires, broke doors, shattered windows, ripped fittings from the wall, overturned cupboards and fridges. What they didn’t destroy they carried away with them. It was a terrible, unlicensed rebuke for a deed Twala had not been charged with, had not been tried for, nor convicted of. It was also vengeance born of police inaction.
Sergeant Twala was out investigating a crime. He received an urgent radio message summoning him home. He hastened back to find his household wrecked. School children were still running from the scene. Inspecting the damage, a senior colleague tried to console him. He assured Twala that three of the guilty youths were under arrest. Indeed, they were right outside, safely locked up in the back of his police van.
On hearing this Twala left the house. He went to the police van and unlocked its back doors. Precisely what followed was sharply disputed at the trial. What was certain was that a fusillade of shots was fired into the van. After it, Twala’s service pistol magazine was empty. And one youth lay dead. Another was critically injured. A third was wounded. The shots had ripped through the chest of the dead youth, killing him instantly. The second they rendered a spinal paraplegic, with permanent partial paralysis of his ankles and feet. The third suffered wounds to his chest, thigh and arm. Fortunately he was not permanently injured. But in court he told my assessors and me about the psychological suffering he had endured.
Before us, Twala faced two murder charges – the stone-thrower he had shot in the spat with his brothers; and the schoolboy killed in the back of the police van. Twala denied any culpability. In the barroom brawl he had acted in necessary self-defence. At the police van, he claimed, the youths inside had set upon him when he opened the doors. In the ensuing struggle his firearm went off – quite unintentionally.
On the first killing my assessors and I found the
