New Challenges: Judging Injustice
After serving twenty-seven years of a life term for high treason, Nelson Mandela was released from prison on Sunday, 11 February 1990. A few weeks earlier, the South African Police had arrested Clayton Sizwe Sithole, a soldier of Umkhonto we Sizwe (the armed wing of the African National Congress) who was also the boyfriend of Zindzi Mandela (the daughter of Nelson and Winnie Mandela) and the father of her three-month-old son. On Tuesday, 30 January 1990, four days after his arrest, Sithole was found hanged in a prison cell in the Johannesburg Central Police Station.
My role as an investigator began the following day, when I was appointed by President Frederick W. de Klerk to conduct a judicial inquiry into the cause of Sithole's death. This appointment was highly unusual, as inquests into unnatural deaths were invariably held by a magistrate, under legislation that regulated autopsies. Also unusual was the appointment of a person who had had little previous experience of criminal procedures or investigations. My expertise lay in the commercial field. The decision to appoint a judge of what was then the highest court in the land to inquire into this matter reflected the political sensitivity of the incident.
By 1990 almost one hundred people had died in police detention. In every case the police put out exculpatory explanations. Some of the detainees had "slipped on a piece of soap," thereby sustaining fatal head injuries. Others had suffered "acute depression" after having given information concerning their friends and had "committed suicide" by jumping out of upper-floor windows of a police building. Never was there an admission of police brutality or torture as the cause. The most publicized of such deaths was undoubtedly that of Steve Biko, the leader of the Black Consciousness Movement and a popular figure in South Africa's black community. Only recently, in their amnesty applications to South Africa's Truth and Reconciliation Commission, have five police officers admitted that they fatally assaulted Biko while he was in their custody. Regardless of the explanations offered, however, there was a widespread assumption that the police were responsible for deaths in detention, and this made the alleged suicide of Sithole all the more sensitive.
As the evidence unfolded during five days of oral testimony, it became clear beyond any question that Sithole had in fact taken his own life; indeed, it was accepted by the legal team acting for his family. I found that one of the probable reasons for the suicide was remorse at having informed the police of alleged criminal conduct by both Winnie and Zindzi Mandela. Because Winnie Mandela was not represented at the inquiry, I considered it unfair for the substance of those allegations to be made public. With the agreement of counsel for the Sithole family and the South African Police, the allegations were kept confidential.
Shortly after the Sithole inquiry, I became involved in the investigation of the causes of violence in South Africa during its transition from apartheid to democracy. As a direct consequence I was appointed the first Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, a formal title for the dual role of war crimes investigator and prosecutor.
When I travel abroad, the question I am most frequently asked is "Why you?" The answer requires me to go back to my student days at the University of the Witwatersrand. There I had the opportunity to meet blacks among my fellow students and developed a deep sense of the injustice they were forced to endure in their daily lives. When I returned to a comfortable home in a white suburb, those students went to the squalor of the black townships. Because many of their homes had no electricity, they had no option but to study at night by the poor illumination of paraffin lamps or, in some cases, candles.
Within months of my first year's study, my sense of shame and injustice caused me to become active in student organizations. They were then fighting a battle against the proposed introduction by the government of apartheid structures within the few South African universities that admitted students of color. I was elected to the Students' Representative Council and soon thereafter to the executive committee of the National Union of South African Students (NUSAS).
In 1957 I represented NUSAS at meetings of World University Service (WUS) in West Africa. My codelegate was Jeffrey Jowell, later to become the dean of the law school at University College, London, and the coauthor, with Lord Harry Woolf, of the leading English textbook on administrative law. It was the first time I had traveled abroad, and what a delight and privilege it was to meet students and faculty from scores of countries around the world. It was also my first experience of the cohesion and commitment of the international student anti apartheid movement. That I was welcomed, and literally embraced, by students from other African countries was an emotional experience. It was also a strong reminder of the life all South Africans could then have enjoyed in a free, democratic, and nonracist society. But, alas, that was still thirty-seven years in the making.
My student leadership days also brought me into unsolicited contact with the security police. They were particularly interested in student activists, and many days and nights I was followed by unfriendly plain clothes police in Volkswagens. They made their presence obvious in an attempt to frighten and harass people whose activities they disapproved of. Of course, it did not have that effect-indeed, to young, otherwise carefree students, their activities lent added excitement to our whole endeavor. My parents, I recall, did not share this laissez-faire attitude-but, to their credit, they did not pressure me to cease my activities.
NUSAS and the Students' Representative Council also brought me into contact with some of the leaders of the antiapartheid movement in South Africa at that time. We used to have monthly meetings at the home of Bishop Ambrose Reeves, the Anglican bishop of Johannesburg. There, we were joined by representatives of thirteen other organizations, which included the African National Congress (ANC), the Congress of Democrats, and the South African Indian Congress. I shared with them their dreams of a South Africa in which all people would live in harmony as equal citizens of the country of their birth.
My student activism lasted for the first four years of my six-year law degree. In the last two years I worked as a candidate attorney for the large commercial firm of Edward Nathan and Friedland in Johannesburg. In the late afternoons I would attend law lectures at Witwatersrand University Law School. In December , within weeks of graduating, I married Noleen Behrman, whom I had met on the steps of the university when she was playing hooky from a psychology experiment, having become frustrated because the rats were running the wrong way. All but one, as it turned out!
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Since the nineteenth century, South Africa has had a dual Bar based on the English model, with barristers and solicitors. From my earliest school days it had been my ambition to become a barrister, and I began my practice at the Johannesburg Bar in April 1963. Although the combination of my family commitments and my law practice kept me out of active politics, I became an interested observer, increasingly frustrated and full of despair at the enforcement of laws designed to impose apartheid in greater and greater measure and to snuff out opposition to those policies.
I built a successful commercial practice and in 1977 was appointed as a senior counsel (the equivalent of Queen's Counsel in England). According to South African tradition, superior court judges were appointed from the ranks of senior counsel. To make good its boast of having an independent judiciary, successive apartheid governments elevated some barristers to the High Court Bench notwithstanding any active opposition to government policies on their part.
In 1978 I was offered an acting appointment as a judge on the Transvaal Supreme Court. The moral problems of joining the South African judiciary were manifest. Its members were obliged, by their oaths of office, to enforce the laws of the land. This was a great concern to me. I decided, however, that I could play a more active role in efforts to ameliorate those laws by accepting the appointment rather than by continuing to pursue a lucrative commercial career. Leaders of the Johannesburg Bar who were themselves antiapartheid activists encouraged me to accept the appointment. The drop in income was appreciable, but, as she has done throughout my career, Noleen supported my decision. Little did we anticipate the exciting years that lay ahead!
I accepted a permanent appointment to the Transvaal Supreme Court in August 1980. An early opinion I delivered in November 1982 brought national and international attention. It related to the laws through which residential segregation had been enforced since 1950. The statute, known as the Group Areas Act, had been amended and updated in 1966. The legislation empowered the government to decree that certain areas of South Africa were to be reserved for the exclusive use of people of one or another color. It was a criminal offense for a person of the "wrong" color to reside or own property in such a group area. The most desirable areas were set aside for whites, and the least desirable for blacks. Some areas were set aside for Asians, and some areas for "coloreds" (people of mixed descent). The opinion was delivered in an appeal of the conviction of a Mrs. Govender, an elderly Asian woman, on a charge of unlawfully residing with her children and grandchildren in a rented house in a part of Johannesburg reserved for whites.
When Mrs. Govender appeared before a magistrate, she pleaded guilty and was sentenced to a fine of less than ten dollars or to fifteen days' imprisonment, all of which was suspended for three years on the condition that she not be convicted of a similar offense during that time. However, the sting was an order that she be ejected from the home. What was unusual in this case was that Mrs. Govender's counsel had persuaded the magistrate to suspend the ejectment order for ninemonths. He did so on the strength ofev idence which established that there were no alternative accommodations for Asians in the Johannesburg area, that Mrs. Govender had been on a waiting list for some seven years, and that she might have to wait another ten before such accommodations would become available. Mrs. Govender appealed to the Transvaal High Court only on the grounds that the magistrate should have suspended the order indefinitely or until she found alternative accommodations.
A two-judge panel, comprising Judge Louis le Grange and me, heard the appeal. In a discussion before hearing argument, we had come to the conclusion that we were not able to assist Mrs. Govender. During the oral argument, however, a new approach occurred to me. At my request, we adjourned early for lunch so that I could discuss the new point with my colleague. Over lunch and a glass of wine, I pointed out that the Group Areas Act of provided that a court convicting a person for living in a "wrong" group area "may ... make an order for the ejectment" of such person. In contrast, the original statute provided that the court "shall" make such an order. We agreed that since the promulgation of the 1966 amendment, courts had failed to pay attention to the fact that the power to make an ejectment order had become discretionary. When the hearing resumed, I requested counsel to consider the effect of the change in the wording of the provision, resulting in a two-week adjournment. In the subsequent judgment we set aside the ejectment order. In the course of my opinion, I said that
The power to make such an ejectment order is a wide one. It is one which may, and in most cases will, seriously affect the lives of the person or persons concerned. It may, and frequently will, interfere with the normal contractual relationship which exists between landlord and tenant. Such an order should not therefore be made without the fullest enquiry....
The prosecutor, if requested by an interested party to seek such an order, would be obliged to place material before the court to justify the exercise of the court's discretion to grant the ejectment order. I cannot imagine any circumstances which would justify a court making such an order mero motu [of its own accord]. Many considerations may be relevant to the exercise of the court's discretion.
One of a number of considerations to which I referred was "the personal hardship which such an order may cause and the availability of alternative accommodation."
Little could I have imagined that this opinion would bring to an immediate stop all prosecutions under the Group Areas Act. It had become politically embarrassing for the government to make the issue of an ejectment order peremptory, and prosecutors were unable to establish the availability of alternative accommodations. In consequence, substantial areas of the larger cities of South Africa became "mixed" in the years that followed the Govender decision.
A few years later, as an item on the order paper (a list of questions that members of Parliament put to government ministers), Gaye Derby-Lewis, a right-wing member of Parliament, asked the president, then P. W. Botha, why the government was allowing "blacks" to reside in "white areas." Botha, somewhat disingenuously, replied that the government had no alternative because of "a judgment of Judge Goldstone." She asked whether the country was being run by the government or Judge Goldstone! This incident had a sequel in 1993, to which I will return in Chapter 2.
In 1986, another case received publicity, this one involving seizure by the security police of calendars printed on behalf of the Release Mandela Campaign, an association dedicated to freeing Nelson Mandela. The calendars contained the preamble to the Freedom Charter, an ANC charter passed at the Congress of the People in 1956, four years before that organization was declared unlawful under the security laws that were introduced in the wake of the deaths of sixty-nine protesters in Sharpeville. The calendar highlighted the birthdates of Nelson Mandela and Walter Sisulu and recorded the dates of Steve Biko's and Neil Aggett's deaths during police detention, as well as the dates of the Sharpeville Massacre and Uitenhage Massacre.