The Justice Game

by Geoffrey Robertson

  The comic open side of Venda was immediately apparent from the signs which proudly pointed to ‘Foreign Embassies’ on ‘Embassy Row’, because the only Embassy in town was not foreign: it was the South African Embassy. The state airline, Venda-Air, was a car-hire service. The largest government department was Foreign Affairs, which lacked any foreign recognition. There was one luxury hotel, where Afrikaner farmers enjoyed vices illegal in South Africa: they came to gamble at the casino, watch hardcore pornography in the hotel cinema, and then have inter-racial sex with black prostitutes (on ‘independence’ in 1979, the Immorality Act was the only piece of apartheid legislation not applied to Venda). Municipal power reposed in tribal chiefs: there was a Parliament, but the building was locked and my enquiries met with the elliptical response ‘Parliament is not in session because it’s an election year’. This came from the Director General of the Ministry of Justice, Mr Tshishonga, one of the smart new breed of Vendan civil servants who were put forward to answer questions about the torture of prisoners. ‘I am secretary of the committee which is looking into this matter. I cannot tell you what we are doing about it, unfortunately, because our proceedings are confidential.’ One of the detainees died of typhoid contracted in prison? ‘Yes, that was very unfortunate. But how on earth were we to know the old man was sick? He did not complain.’

  Mr Tshishonga was half glad to see me – in an unrecognised country, my visit counted as some confirmation of his existence, if only as an apologist for torture and neglect and murder. He was vexed about Amnesty, however: ‘We get all these letters from your members. They say the people we convict are innocent. How on earth do they know?’ Amnesty letters never say this: they are carefully worded to complain only of breaches in minimum standards of justice or prison treatment. Mr Tshishonga demurred, and we argued. ‘If you like, I will show you the file.’ So he clapped his hands to summon his secretary: ‘Bring me the file for Amnesty International’. She returned with a drawer pulled from a cabinet, in which there were indeed many letters. Excited now, he emptied all the letters onto the desk. ‘There. See for yourself!’ I looked at the letters, all addressed to the Minister of Justice, postmarked from Amnesty offices around the world. Not one of them had been opened. I pointed out to Mr Tshishonga that his minister did not seem to read his mail. The Director General’s mouth fell open. ‘The minister has been on holidays. Since . . . since . . .’ he scrambled for some postmarks, ‘since last year. He is still on holidays . . .’ The members of Amnesty International who conduct ‘write in’ campaigns on behalf of prisoners of conscience may never expect their letters to be read, or even opened. The fact that they arrive at least brings home to the servants of brutal, isolated States that, somewhere, someone is watching them.

  It was to give the prosecution and judges of South Africa the sensation of being watched that I was in Venda, operating under a code which in this period served the cause of human rights rather more effectively than the posturings of Western diplomats and politicians. Apartheid had made South Africa a pariah State, condemned for injustice at Commonwealth conferences by African governments whose own legal systems were far less just. This diplomatic hypocrisy South Africa could ignore – it was more unsettling to have its protestations to fairness taken seriously, by an organisation which expressed no views about the nation’s political system, but had a track record of exposing human rights abuses wherever they occurred, even in the US and the UK. For this reason South African judges and politicians and Attorneys General always received Amnesty observers with a nervous politeness, and usually allowed us into their courts and prisons. They wanted us to like them and approve of them, and they knew that Amnesty missions were low-profile exercises in which we would take care to be seen, but not heard giving press conferences. We would not make the snap judgments associated with American trial lawyers, who love to parachute in and make a fuss, and have their names attached to that fuss. Amnesty’s measured reports did more in the long term to persuade apartheid’s defenders that the system was indefensible.

  ‘I am now the second member of my family to be libelled in The Times of London.’ Venda’s Chief Justice, G P Van Rhyn, angrily flourished a recent press clipping which criticised him for acquitting the policemen who killed the Lutheran lay preacher. ‘They attacked my father twenty-four years ago, when he was South African Ambassador to Britain and had to explain why our actions in Sharpeville were necessary.’ (In 1960, South African police had massacred sixty-nine peaceful protesters in that township.) ‘Now they are saying these things about his son.’ Van Rhyn was every inch the Afrikaner lawyer, formerly counsel to that bastion of Boerdom, the Farmers’ Union. But the common-law tradition wove its spell: it was precisely because of the upbringing in it we shared that he talked so frankly. ‘I am so upset about this because I admire you English lawyers. I once had the great privilege of meeting your Lord Denning. You English lawyers know that rules must be followed.’ Lord Denning tended to make up the rules as he went along, but I let that pass. ‘You English are very important to South Africa. After all, you are forty per cent of our population!’ He paused, to let this sink in: his failure to count seventeen million blacks did impress me. ‘Like my father, I too am an ambassador for South Africa.’ No he wasn’t. He was a judge. ‘True, but I am sacrificing some years of my life to help these unfortunate people, before I go back to the South African Supreme Court.’ But we were in South Africa, really. ‘No, it is a lie by foreign politicians and journalists to say that Venda is not independent. It is completely independent.’ South Africa, he told me proudly, was fighting for its life, and he saw himself as a part of its defence force, wearing his wig like a combat helmet. He alone would decide whether to compensate the black Lutheran pastors.

  The lawyer for the Lutherans would have an impossible task, and I was anxious to meet him. His name was Ismail Mahomed, and his speciality was driving coaches and horses through apartheid legislation. (In Pretoria, the draftsmen talked about making theirs laws ‘Mahomed-proof’.) Ismail was the first black to become a senior counsel after a career in which he suffered every petty humiliation, so he was undaunted at the prospect of appearing before Van Rhyn. The Lutherans were brutally treated in detention (the medical evidence was overwhelming) but they were gentle churchmen with no wish for revenge: their leader gave talks entitled ‘Why I forgive my torturers’. So Ismail offered the State a deal: an admission of police guilt and a payment of £10,000 per plaintiff, or else a trial lasting two weeks which would expose the torturers. The State accepted, and afterwards the pastors took me to their mission in Venda’s green hills, where they were helping victims of famine. I had thought they made the wrong decision, because it was important to expose to the world evidence of electric-shock torture by South African-controlled police, and this could be done most effectively through a trial. But when I saw the distended bellies of the famine victims I understood why they chose to take the money to spend on food. It was not that they had no stomach for the fight, but that there were too many other stomachs which needed to be filled.

  Robert Ratshitanga was offered a bargain as well. He was one of several Vendans charged under the Terrorism Act with ‘harbouring’ ANC guerrillas. His crime was allegedly committed when three ANC ‘boys from the bush’ turned up at his back door asking for food. He gave them porridge, in the company of a fellow sympathiser who on arrest had turned informer, agreeing to give evidence against Robert in return for a low sentence. It was hardly a serious offence, but the minimum term of imprisonment had been set by law at five years. This had been much criticised by Amnesty: every law which mandates a fixed sentence produces injustice in cases where the crime does not merit it. But this week (because, I was told by a friendly junior in the prosecutor’s office, Amnesty was observing the proceedings) a new deal was on offer. Those charged under the Terrorism Act with minor acts of harbouring may plead instead to the offence of High Treason, where the sentence is at the discretion of the court. The Attorney General would ask
only for one year, and Van Rhyn would make a show of being even more merciful, and sentence to eight months. Any time in Venda’s typhoid-ridden prisons was dangerous, and the five years mandated by the Terrorism Act was often a death sentence, so this deal was immediately accepted by the first ‘harbourer’ brought to court. Van Rhyn nodded in my direction as he began his sentencing homily. ‘The attitude of the State in this case has been fair, lenient and almost compassionate . . . you will find my sentence extremely lenient.’ He was talking to Amnesty and to ‘The Times of London’ as he said this – he had never given a sentence so low for a harbouring offence and would not do so again, I sadly suspected, when Amnesty was no longer watching him. He was, however, prepared to do it in the next case, the least serious of all, involving the plate of porridge provided to the ANC by Robert Ratshitanga.

  I was permitted to meet Robert in the cells, while he discussed the deal with his lawyer. He was forty-five, a man of the most extraordinary presence and dignity. For the six months since his arrest he had been held in solitary confinement in a stifling corrugated iron cell in a malaria-ridden bush prison. But Robert had managed to acquire a biro and toilet paper: from the sole of his shoe he produced his prison diary, an Andrex scroll in minute handwriting. He had, in the past, written several books of verse: his poems were pastoral rather than political, but he was still Venda’s only published poet. He was not in good health, and believed he would die in prison if he had to serve the full five years under the Terrorism Act. There was only one problem about accepting the alternative: the plea was to High Treason ‘with an intention to impair the sovereignty of the State of Venda’ and as Robert explained, ‘There is no way, absolutely no way that I can bring myself to acknowledge the existence of the State of Venda’. There was no moving him: his lawyer tried and so (stepping out of the role of impartial observer) did I. But this man, for all the pain and privations of five further years of imprisonment, could not acknowledge the existence of Venda as an independent constitutional entity. He was right, of course, as a matter of principle: the State of Venda was a sick joke perpetrated by South Africa as a cover for apartheid. But would it really matter to anyone if he accepted that he had impaired its non-existent sovereignty? It mattered to Robert Ratshitanga. With all the integrity which must have attended Sir Thomas More’s refusal to take an oath in full knowledge of the deadly consequences, he unswervingly declined to receive mercy at the hands of a country in which he did not believe. He was truly, thereafter, a prisoner of his own conscience.

  So they took him away for his trial under Section 3 of the Terrorism Act. The friend who had been with him when he fed the guerrillas gave an accomplice’s evidence against him, shooting nervous glances as he did so at the white South African ‘advisers’ sitting in the courtroom. Robert Ratshitanga was found guilty, as he undoubtedly was, and jailed for five years as a terrorist, which he undoubtedly was not. He was, rather, the epitome of courage, a man who refused to save himself either by lying to the court or by copping a fraudulent plea.

  There were other missions for Amnesty, to watch the justice game being played out as the struggle against apartheid became more intense. Those of the country’s true leaders who were not in the bush were often to be found in the vast dock of Pretoria’s Number 1 Court on lengthy trial for treason. The stairs from the dock led down to a cavernous room where they were permitted to spend lunchtime with their lawyers. There I met treason trialists like ‘Terror’ Lautoka and his twenty co-defendants, charged with forming a political movement (the United Democratic Front) to overthrow the State by calling for democracy. The walls of the room were covered in grim graffiti: the names and slogans and counting of days scribbled by political prisoners over the years. If the new South Africa wants a new national monument, it need only exhibit these walls.

  South Africa throughout the eighties was a nation at war with itself. Ungainly armoured vehicles called ‘hippos’ and ‘caspirs’ patrolled the dusty township streets with conscript soldiers crouched inside, taking nervous aim at any potential demonstrators. Sometimes, there was a massacre – as at Uitenhage on 21 March 1985, when a black funeral procession was mown down by bullets. It was some sort of tribute to the continuing operation of the law that the security forces found it necessary, after killing twenty-nine mourners, to fabricate evidence to excuse their conduct. They had been given orders that petrol bombers ‘should be eliminated’, so they clumsily manufactured evidence of a ‘petrol bomb’, using a smashed Fanta bottle and some torn-up newspaper: the surrounding earth was analysed by forensic scientists who found no trace of petrol. The security forces also claimed that the crowd was throwing stones, but there were no stones in or near the position in which their vehicles had stopped. Their evidence was torn to shreds at the Kannemayer Commission, the judicial inquest into the incident which opened in Uitenhage.

  While there, I stayed with Molly Blackburn, a doctor’s wife who worked relentlessly for the end of apartheid, and was one of the founders of ‘Black Sash’, a civil rights organisation of like-minded women. I was the guest at a reception thrown by the local law society. ‘We particularly wanted to meet you,’ said its president, ‘to say that we all like to think of Uitenhage as the garden city. We are very upset that its name should be associated with tragedy. We lawyers have nothing to do with these troubles.’ Indeed they had not: the local law firms refused to act for the victims, many of whom worked for well-to-do white families in this prosperous city where black servants lived in townships far enough away not to spoil the view from the civic gardens. But some young lawyers from the Legal Resource Centre in Johannesburg had joined with ‘Black Sash’ to set up an open-air office in the grounds of the local Catholic church, where statements were taken from eyewitnesses to the massacre, and then from relatives of more victims as the violence spread.

  There is no textbook which teaches lawyers how to practise under fire, but these young South African lawyers were writing one in Uitenhage. The case of Ndenzile Thembani, for example, began when his body was brought to the church grounds in the back of a pick-up. I thought he was curled up asleep, but because rigor mortis had not set in, he could be uncurled to reveal the bullet holes. Estimating his time of death at about an hour ago, we drove to the scene of the shooting. It had occurred in a township some five miles away, where eyewitnesses said the bullet had come from a caspir, one of a number of shots fired after a group of about eighty youths had been dispersed by tear gas. We noted that there were no stones on the sealed road at the point where Ndenzile had been killed, but we found other rifle bullets in the vicinity. Our white presence attracted attention, and the caspir returned. The officer in charge wanted to know what we were doing collecting evidence against him of culpable homicide. He claimed that eight hundred youths had been stoning his caspir, but he could not explain the absence of stones on the road other than by suggesting that the township residents had gathered them all up and hidden them before we arrived. Why had he not helped the wounded? He was not going to say any more. It was another example of the random shootings of the time, as police and army aimed to kill or cause serious injury, without any credible claim to be acting in self-defence. As Ndenzile’s body stiffened, the painstaking legal paper trail began which might one day bring this officer to some sort of justice.

  At least the government forces stayed away from the funeral of the massacre victims, held in a sports stadium at Kwanobuhle with Bishop Tutu presiding and the unsinkable Molly Blackburn at his side. Tens of thousands sang ANC songs and listened to churchmen giving veiled ANC messages and watched a shock troop of schoolboys perform a military tattoo in front of the coffins. These deaths were not being mourned at a funeral but celebrated in a political rally, led by substitute generals wearing clerical collars. The killings were unforgivable, and this occasion made them unforgettable. The irony in this country was that a functioning legal system did provide some redress, at inquests and by the possibility of civil action against the police. This was too haphazard
a retribution to deter future killings, but it did enable some truth to emerge about the State’s responsibility for its arbitrary ‘shoot to kill’ policy: the one time that these victims received the respect due to them as human beings was when they were beings no longer.

  Events like the Uitenhage massacre infused demands for vengeance against black collaborators with apartheid: when mobs formed, someone would suggest ‘necklacing’ a traitor, or stoning him to death. The police could rarely be certain of the ringleaders – after such incidents they would arrest half a dozen or so members of the mob and impute to them, by a doctrine called ‘common purpose’, an intention to kill which would result in death sentences for all, unless the judge found that there were extenuating circumstances. In the first five months of 1988 sixty-six men were executed; sixty-five of them black. This was the fate which would have befallen the ‘Sharpeville Six’ and the ‘Upington Fourteen’ had they not attracted the attention of Amnesty and other human rights lobbies. I would meet these men in their prisons, then go for drinks with the judges who had sentenced them to hang. A few of the prisoners I thought were guilty but some were innocent, and the same applied to their judges. The inappropriately named Judge Human, who had convicted the Sharpeville Six, was generally found propping up the bar of the Pretoria Club, which had recently admitted Jews but not blacks or women. He would speak of ‘the blacks’ and ‘the mob’ interchangeably, as an entity he endowed hydra-like with an intelligence and a capacity for single-minded action. The ‘common purpose’ doctrine was not a legal fiction, it was exactly the way he thought. He should, on the evidence, have found extenuating circumstances (and so avoided the death sentence) in five of the Sharpeville Six cases, and was furious when Louis Blom-Cooper (in an article in the Independent) attributed his failure to his politics. Judge Human asked my advice: ‘Does Blom-Cooper have any money? If I can get libel damages, then at least I can retire.’ He did collect damages from a Pretoria paper which republished the Blom-Cooper article: the money helped him drink himself to death.