Witness to AIDS. Edwin Cameron
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 prosecution witnesses honest. But their evidence was not sufficiently firm for a murder conviction. Everyone had been drinking, and accounts as to what had happened when differed. Besides, everyone agreed that a hostile crowd had gathered and that tempers were running high. Self-defence could not be rejected as untrue beyond reasonable doubt. Twala had to be acquitted.
But on the police van shootings we had no hesitation in rejecting his account. The two surviving youths gave pitifully convincing, unembroidered evidence of how Twala had opened the doors of the police van, produced his pistol and then wildly emptied the magazine. The district surgeon gave detailed evidence on the sites of the wound entry and exit points. He confirmed that the young men’s account squared with the medical evidence. We found Twala guilty of the murder of the dead youth, and of the attempted murder of the two survivors. He was lucky not to have had the survivors’ lives on his hands as well.
Even so, we found that he had not acted cold-bloodedly. He was in a desperate rage, overcome by the awful devastation he had gone home to witness. Mercy required that I take this into account in sentencing him – and that I purge from my mind suspicion about the earlier killing. I did so. Despite the death of the youngster, and the horrific injuries to the other two, I imposed a strongly mitigated sentence of nine years’ imprisonment.
Twala was not content. His defence – like that of most policemen charged with on-duty killings – was conducted by the state legal office, which briefed experienced counsel. His case ended three years later in the Constitutional Court. A judgment in his name set a precedent about appeal procedures. But the murder findings and his nine-year sentence remained intact. With remission and parole, he is by now probably long out of jail. Sergeant Twala, too, has had a second chance.
After my session with the X-ray doctor, my clerk and assessors and I travelled to Vereeniging and back every day. Each morning I donned the bib, sash, waistband and flowing scarlet