XIII - The Courts

From the book: No.46 - Steve Biko by Hilda Bernstein, 1978, South Africa

In any society where courts exist they tend to play a significant role in the system of domination. They normally claim a monopoly of the right to sanction the use of force, and they speak in the name of the sovereign, usually on behalf of the community ... A test frequently adopted is whether or not a legal system operates according to the Rule of Law, a concept easier to extol than to define . . . The actual effects of the legal system and the interest promoted or suppressed by it should be as much a matter for enquiry as its formal elegance or procedural equity. The enhancement of techniques to serve ends which are unjust promotes rather than reduces injustice. In this connection it should be noted that the courts give a sense of orderliness and regularity to domination.

There are certain things about the death of Biko, declared the SABC, official voice of South Africa, which should be pointed out:

No one in his right mind can cast any doubt over the manner in which the inquest was conducted. It was held in open court and demonstrated the open­ness of the South African legal system in action . . . There are few countries, in the West even, where the security police would have been subjected to such an interrogation in open court. South Africa should be proud of this . . . There is a long standing belief that the South African legal system retains its dignity and its decency in an otherwise flawed system. While a never-ending stream of political trials pass through the courts, while defendants complain unheeded of brutality and torture, while detainees die, often unlike Steve Biko in a deep obscurity, the courts are supposed to be the bastions of impartiality and of justice.

An independent judiciary is one that functions where the rule of law exists and protects human rights South African judges rarely protect human rights. The very existence of the procedures and practices in the Terrorism Act and other repressive legislation undermines the rule of the judiciary and obstructs defence attorneys. The courts in South Africa are a part of that closed circuit of power that maintains white supremacy. During a period of many years in which apartheid laws have been consolidated and extended the ability of the courts to offer any protection against unbridled persecution and cruelty by the authorities has dwindled and vanished.

Consider the legislation that permits the detention of individuals for varying lengths of time without charging them in a court of law or allowing them any contact with family, legal advisers or independent medical attention.

Ӣ The General Laws Amendment Act, No. 62 of 1966, empowers a senior police officer to detain any person he considers suspect in terms of the Act without a warrant for a period of 14 days.

Ӣ The Terrorism Act, No. 83 of 1967, as shown on page 18 allows for indefinite incommunicado detention for interrogation.

Ӣ The Internal Security Act, No. 44 of 1950, amended in 1976 provides for two categories of detention: preventive detention and detention of witnesses.

Ӣ The Criminal Procedure Act, No. 51 of 1977, also provides for the detention of witnesses.

Experience both inside South Africa and in other countries has demonstrated that legislation of this kind has only one purpose: to allow police unfettered action that is torture, of those detained.

Security detention is used against a wide range of individuals and groups who are not involved in activities, which could in any way be labelled subversive or illegal. The Minister of Police revealed in September 1977 that since June 1976 2,430 people had been detained. 1,307 were ultimately released without any charges having been brought against them.

According to the SA Institute of Race Relations:

Large numbers of those who openly voice their opposition to the government have been detained in the past and are in detention at present. This type of action, together with other intimidating action undertaken by the police, will no doubt result in extra-parliamentary political action becoming Jess overt and increasingly covert. It is essential to acknowledge that structures are not provided for the majority of the population to express their political aspirations”¦ The use of detention to silence dissidents, works contrary to the principle of mediation.

Since 1976 school pupils constitute a large proportion of those detained. They are held, but not brought to trial.

English-type court procedures were introduced into South Africa early in the 19th century and laid the foundations for the modern court system. The formal equality of all before the court was recognized, and the rules of evidence and procedure were modelled on those existing in England. The need to reconcile the theory of judicial equality with the practice of race inequality gave the legal system a contradictory character that persists to this day. On the one hand the courts provided a forum where the poor and dominated could seek redress of grievances in an atmosphere of decorum; on the other they furnished the machin­ery for the massive suppression and punishment of persons threatening the peace and property of the dominant community. 'South African courts have been by no means unique in serving these two apparently contradictory ends, but they have done so to a degree probably without modern parallel'.

The majority of South Africans are black, but the courts are presided over by white judges and white magistrates, administered by white prosecutors; white attorneys and senior counsel appear together with all the white police, warders, security men, clerks. All these officials live under laws and which are totally different from those of black defendants who appear in the courts. Few, if any, of the whites have even the remotest conception of what is like to live as a black person in South Africa.

The problems and difficulties, the poverty and restrictions, the harassments the miseries of migrant labour, the forced separation of husbands and wives, the loneliness and bleakness of life in the reserves””'Bantustans'””whose man work for those whites, far from their own wives and children, in white homes, in white-owned mines, factories, shops, offices; these are observed by very few whites. To observe leads to realization of the necessity of change

The role of the courts, theoretically, is to sit in judgment on those charged with contravening the laws of the land. Who made those laws? Who enforces them? Who must judge whom?

The judges are not directly responsible for the laws the white parliament passes (except in the sense that the whites are the voters, and therefore participated in making that parliament). They acknowledge that their responsibility is that of pronouncing on the law rather than making it; that they must give effect to the will of parliament as expressed in the legislation. But despite that, they are capable of some effect in the way the law is administered, particularly by their own interpretations of passages in the statute that are not absolutely explicit.

For the past fourteen years, judges sitting in political trials have defendants describing brutality and torture at the hands of the security police. Some judges have commented on the evidence, some said that there should be a further inquiry into the allegations, some have simply ignored them, and some have said it is a pack of lies invented by the defendants. But whatever their attitude, none of them have let the evidence of torture influence the final verdict which is made according to laws under which the defendant has been charged.

Not one of them, not all the great body of evidence, has brought about any modification of the conditions under which detainees are held; any changes in the laws; any punishment or action against the security force. Imam Haron died with bruises all over his body and many other injuries. The police said he fell down a few stairs. The Attorney General said an inquiry disclosed no evidence whatever which could serve as a basis for prosecution of any person.

A 69-year-old detainee. Marks Monokgotla, after terrible beatings and' torture, managed to get a statement to lawyers and an interim five-day restraining the police from interviewing him. A lawyer submitted the restraint on the police should be extended. This is what the judge said:

If your man is a terrorist, then the police have every right to arrest.

Don't expect me to make an order on baseless allegations. The allegations made by him are denied by several policemen. Why must I cast this terrible slur on the police?

A doctor in East London testified that Washington Bongco had been admitted to hospital with numerous injuries, both ears hemorrhaging, bruises around the neck, badly swollen eyes. Another doctor said the detailed hospital records had been 'mislaid' and that the injuries were consistent with the police statement that Bongco had fallen and been in a struggle with the police during an escape bid. The judges found that Bongco's case was 'riddled with inconsistencies . . . Allegations of being assaulted were sheer fantasy. By the clearest evidence his story was shown to be untrue'.

In the SASO/BPC trial in 1976 the judge ruled that denials of assault made by the security police were to be accepted by the court and that there was no evidence of physical violence involved in police interrogations of detained State witnesses.

A case as equally alarming as Biko's, where the judicial investigation proceeded further, was the Mdluli case.

On 19 March 1976, a 50-year-old man, Joseph Mdluli, died in security police custody in Durban within 24 hours of his detention. He had been an ANC member until the organisation was banned in 1960.

Two days after his death a post-mortem examination was held from which a private pathologist retained by the family was excluded. The family lawyer, Mr. G. Mxenge, demanded that a second post mortem be held. This was refused. On 24 March Mxenge was himself detained.

Mrs. Mdluli remained adamant in her demands for a full investigation. On 12 April the Minister of Justice denied that there was any attempt to cover up the death of Mdluli.

Then on 13 May the ANC released photographs of MdIuli's corpse at a press conference in London and charged that he had been tortured to death. The photographs showed extensive injuries subsequently found to include a fractured cartilage and severe bruising to the neck, extensive bruising on the forehead, temporal area and back of the scalp, abrasions in numerous places, deep bruising near the rib cage, three broken ribs and numerous bruises and abrasions on the body and limbs. The brain was congested with hemorrhages although the skull was still intact. The lungs were blood congested and waterlogged.

In an unprecedented move on 11 June, following international protest, the Minister of Justice announced that four Security Branch policemen were to be charged with the culpable homicide of Joseph Mdluli. The trial that followed proved farcical and merely continued to conceal the responsibility for Mdluli's murder.

The four accused policemen. Captain D. F. van Zyl, Lieutenant A. R. Taylor, Detective Sergeants M. P. Makhanya and Z. Ngobese, did not even give evidence. Instead the prosecutor produced an agreed statement of facts, thus avoiding a potentially revealing cross-examination of the accused. According to the police explanation, Mdluli was arrested on 18 March at about 10 p.m. and attempted to escape from the Durban Security Branch headquarters at 10 a.m. the following morning, was restrained and a fierce struggle ensued. After the struggle Mdluli was calm and made no complaint of any injuries. This incident was reported to Major Coetzee who satisfied himself that Mdluli was not injured. Mdluli's interrogation continued with occasional breaks until about 8.30 p.m., when he suddenly got up, held his head, staggered and, complaining of dizziness, fell with his chest or neck on to the back of the chair. The chair toppled and Mdluli fell against the door. Shortly after this, at 9.55 p.m. he was dead.

This explanation could not begin to explain the extensive injuries found on Mdluli. Giving evidence, state pathologist Dr. van Straaten said that he was called to Fisher Street at about 11 p.m. and shown the body of Mdluli covered by a blanket. Photographs were taken and Dr. van Straaten examined the body shortly after midnight. An officer demonstrated to him how Mdluli had fallen over and died, although he made no mention of Mdluli hitting a chair. Dr. van Straaten stated that his first reaction on examining the corpse was 'here is a man who could have been dead for anything up to 12 hours. I did not take the body temperature as there was the cream of police society telling me that the man had collapsed and died in their presence'.

When Dr. van Straaten conducted the post-mortem, he found numerous injuries which could not be accounted for by a single fall on top of a chair. He found that there had been more than one application of force to the area of the neck on which the fatal injuries appeared. Professor I. Gordon, the chief state pathologist in Durbin, corroborated Dr. van Straaten's evidence. He examined the body on 22 March at the request of Dr. van Straaten, who pointed out his findings. They decided to change the description of the cause of death from strangulation to 'the application of force to the neck'. He confirmed all the injuries and said, 'it seems that the application of blunt force took place at separate times and not in continuity'.

Acquitting the accused, Mr. Justice James found that the case against the four policemen had not been proved. 'If police evidence was to be accepted at face value the four accused were not responsible for the death of Mr. Mdluli... it was clear from the doctor's evidence that Mr. Mdluli died almost immediately after receiving the neck injuries. If he had died of these injuries in the morning after a scuffle with the four accused, all the policemen in the building would have had to enter an elaborate conspiracy to conceal his death until evening. I consider the probabilities overwhelming that the accused did not give Mdluli the fatal injuries to his neck that morning. As this was the only occasion on which it is alleged that they assaulted Mdluli, it follows that they were not responsible for his death. It then follows that whatever view one may take of what occurred, all the accused are entitled to an acquittal on the charge they face'.

The carefully constructed prosecution case provided the four accused with alternative ways out. By alleging that Mdluli had died only late in the evening the four accused could avoid being found guilty of the charges because the prosecutor specifically charged that Mdluli had died in the morning. If they were found guilty it would have been on the basis of the admission of a scuffle taking place in the morning, in which case they could claim to have inadvertently ed Mdluli whilst attempting to restrain him. The judge could not accept that a whole building full of police could conspire to conceal the circumstances of Mdluli's death. Dr. van Straaten had neglected to take the body temperature and therefore could not be sure of the time of death. The clear evidence of Mdluli's widespread injuries could not however be reconciled with the police explanation. The judge found their story open to 'very considerable doubts'. He concluded 'I need hardly say that the problem of how Mdluli met his death is one that should be solved and it is one of great importance'.

These remarks absolve the judge of any responsibility and refer investigation of the death back to the police. In February 1977, the Natal Attorney-General announced that the investigation into the death of Joseph Mdluli, ordered by Justice James, had been completed. No new evidence had come to light, he said, and no further prosecutions would take place.

Joseph Mdluli was listed as a co-conspirator in the marathon trial in Pietermaritzburg often men charged with ANC activities held from May 1976 to July 1977. The judge in the trial, Mr. Justice Howard, dismissed the testimony of the accused that they were tortured, but in a section of his 15-hour judgement stated that the injuries that caused Mdluli's death in detention could not have been self-inflicted nor caused accidentally. The judge found that most, if not all, of the injuries on him were inflicted by one or more unidentified members of the Security Police. 'We are satisfied that Mr. Mdluli sustained the injuries while he was in the custody of the Security Police. There is no evidence of how he suffered the injuries or in what circumstances. That is a matter peculiarly within the knowledge of the persons in whose custody he was at the time and none of them has given evidence', said the judge.

No further action was taken by the Attorney-General.

And suppose the judicial system were to accept evidence of torture. If, after prolonged detention under Section 6, when the victim is finally charged and has access to a lawyer, he attempts to obtain an interdict to restrain the police from further violent interrogation, the state will simply withdraw the charges and put the victim back again under Section 6, where he is held totally incommunicado. And further, if a judge actually dismisses charges against the defendants””as has happened from time to time where the case has been too obviously full of flaws, or state witnesses have refused to testify when brought to court””then the defendants are simply re-arrested before they leave the dock and held once more in total inaccessibility by the security police under Section 6.

The main criticism which could perhaps be advanced in relation to the conduct of most of the judges is nor so much that they help to enforce race discrimination because they are corrupt, cowed or consciously biased, but that they do so willingly, not that they lack courtesy or decorum, but that they use polite and elegant language to lend dignity to laws which impose segregation and harshly penalize radical opponents of a system of government almost universally condemned. Instead of investing their office with the prestige associated with the pursuit of justice, they allow the prestige associated with their office to be used for the pursuit of injustice.

The Biko inquest played an important part in maintaining the myth of the independence, detachment and impartiality of the South African courts. Every single participant in an inquest of this kind becomes in one way or another an actor playing a part from which he can deviate only a little.

The court is a masquerade. The decision has been taken before the courts sit. It is a conspiracy of which the very highest, the Minister of Police himself, J. Kruger, and the lowest, policemen, warders or clerks are with notable exceptions. South Africa's lawyers as a whole and the organised legal profession have done little to mitigate the crudities of the Terrorism whose very purpose is to obtain evidence by the use of torture. Even where lawyers are wholly concerned with the experiences of their defendants, they have to make difficult decisions. As an eminent jurist observed of one the earliest Terrorism Act trials: 'The reality of prison torture contrasts with the inadvisability of registering such a complaint. It was generally agreed that to complain about torture in the setting of the terrorism trial would inflame the prosecution and the judge. It was not in the best interests of the defendants, who were on trial for their lives, to assume this risk in an atmosphere such as prevails in South Africa'.

Lawyers appearing for defendants at these trials, or for the families of mur­dered men at the inquest, know that the Terrorism Act is the very negation of justice. But the state prosecutors, the attorneys-general, the magistrates judges””they are also familiar with the law and the general trend in the laws. We don't make the laws, say the legal men; our job is to apply them, to see they are adhered to. From where comes that potent echo from the past? When is the stage reached when we are no longer dealing with the nicety of jurisprudence but with the essential quality and survival of justice itself?

Where inquest magistrates are concerned, there is little attempt at a display of judicial erudition. In the Biko case this was particularly obvious. Prins only intervened to ask questions suggesting a partiality towards the police. He gave Kentridge some freedom in cross-examining police and doctors on their contra­dictory statements and affidavits. But the outcome had already been decided. The Attorneys-General for the Eastern Cape, and for the Transvaal, both stated before the inquest even began that no criminal proceedings would be instituted.

Undoubtedly all witnesses experienced some uncomfortable moments in the dock, and were totally unable to answer some questions. But they could not main­tain their arrogance, nor need they feel any twinges of conscience or regret. They knew nothing would happen to them. Why should it? They were protected by that closed circuit of power from Kruger””Minister of Police, Justice and Prisons”” down to the newest warder or hospital orderly, which maintains the apartheid state.

When counsel for Biko's family finished the drama with his trenchant direct, unanswerable accusations, the show was over. It was not necessary for Magistrate Prins to do any more than say, symbolically, 'The End'. Thus his insultingly-brief findings; no reasons were necessary; no reprimand to those in high places who had lied and lied; no word of regret.

The courts remain, but there is no rule of law. The security police are totally above the law. There are no laws nor rules of conduct to which they adhere; there is no court to which, ultimately, they must be answerable. They are now invested with power and secret invulnerability that places them in a position that is unassailable. No more is a court decision final or binding. If a judge, confron­ted with a patent lack of evidence, finds the political defendant 'not guilty', there are the sinister men of the 'special branch'””the security police””who step for­ward once again. Theirs is the ultimate authority.