Dison, D. (1989). Violence and the Law: An examination of some recent trials. Paper presented at the Centre for the Study of Violence and Reconciliation, Seminar No. 9, 26 October.
Seminar No. 9, 1989
Presenter: David Dison
David Dison is an Attorney.
Date: 26 October 1989
Venue: University of the Witwatersrand, Johannesburg, South Africa
COSATU House Murders - Facing up to the violence
On the fateful night of April 28th, 1987, four South African Transport Services (SATS) workers were murdered near the highway at Prolecon near City Deep, Johannesburg. It later transpired that the four deceased workers had been "scabs", who were alleged to have been working during the massive South African Railways and Harbours Workers' Union (SARHWU) strike of March, April and June 1987.
On the 29th April 1987, the building occupied by Unions affiliated to the Congress of South African Trade Unions (COSATU), known as COSATU House, was circled by a massive deployment of troops and police. On that day, as on every day for the previous six weeks, the building was occupied by hundreds of striking members of SARHWU, a COSATU affiliate. This was not the first siege of COSATU House as we will observe below, but it was different to previous engagements between the security forces and the occupants. On this occasion, there was a man clad in a balaclava with the police who identified and picked out certain workers as they were made to file out of the building. The vast bulk of the occupants were striking railway workers, with the balance being a handful of officials and members of COSATU and its affiliates.
The balaclava-clad man identified more than 10 railway workers who were summarily arrested. In the days thereafter, many more arrests were made with much fanfare from the South African Police and the SABC, including a television broadcast with the gruesome pictures of the bodies of the murdered scabs lying in the veld at Prolecon. This was the beginning of a fascinating case in which 18 members of SARHWU were each indicted, with four counts of murder and abduction, and hundreds of counts of assault and intimidation. The trial focused the spotlight on one of the most violent and explosive strikes in South African labour history. As a member of the legal team defending the 18 strikers, I was able to assist in a process of unravelling the chain of violence which occurred during the strike. In this paper I will attempt to analyse the kinds of responses by Unions, community organisations, lawyers, and academics to the phenomenon of group violence which occurs in response to State violence. South Africa has, unfortunately, in the last few years, become a laboratory for this kind of phenomenon. We have seen a host of these kinds of trials ranging from the "Sharpeville Six" and the "Upington 26" (these trials exemplify the crowd murder which often involves the "necklace" method of killing) to the killings resulting from violent labour conflict, normally involving the killing of scabs.
It will be suggested in this paper, by examining the COSATU House case in detail, that a more meaningful examination, and therefore ultimately a more valuable defence of the accused results from an approach which accepts the violent dynamic of the conflict and explains it to the court, rather than one which seeks to deny it. Obviously, one cannot be prescriptive in an area where each case has its unique set of facts, but it must be borne in mind that in the Eastern Cape alone, there are currently more than 40 persons awaiting trial in a series of common purpose murder trials.1 The 18 accused SARHWU members were held in detention together with about 20 other SARHWU officials and members for the better part of six months before they were formally charged and became awaiting-trial prisoners. When we first started consulting with them towards the end of November 1987 we were confronted with 13 confessions and statements which had been made by the accused whilst they were in detention. These confessions were made before Magistrates under oath. Traditionally in criminal cases, the stance of defence counsel is to challenge the admissibility of the confession because it has been extracted from the accused whilst he has been in detention and without reference to legal counsel. Challenges to confessions are very strong when violent coercion has been used by the police whilst the accused has been in detention. In this case however, although clearly, the conditions of detention under Section 292 of the Internal Security Act 2 had been by their very nature, coercive, there were no allegations of torture, and very few allegations of maltreatment or assault during the detention. Alarm bells started to ring in our heads. Because when we read through the contents of these confessions, those who were directly involved in the killing seemed to have volunteered the entire story chapter and verse. When we asked the accused for an explanation of this phenomenon, their primary reason was not the coercive nature of the detention but rather an explanation that at the time they had no qualms about admitting to the facts of the incident. In a sense therefore we were presented with a group who did not see themselves as being criminally or morally liable for their actions - those amongst the 18 who had been directly involved in the four killings presented an astonishing lack of contrition or regret.
As we delved into the individual histories of each of these accused, we were presented with ordinary hardworking employees of SATS, many of whom had only become members of SARHWU during the build-up to the strike or during the course of the strike. They were, in the main, God-fearing working class people with strong roots in their communities and, with all but one exception, no criminal record.
The second document which we were presented with made the situation even more puzzling. This was a series of photographs of the corpses of the four scabs. Each of the corpses had multiple stab wounds, was badly burnt in places and was abhorrently mutilated. Although by that stage we knew that some of our clients had been directly involved in the killings, we had grown to know them as peaceable people with a conception of them as having been party to one tragic aberration. But having seen the photographs we realised that a group dynamic of immense proportions must have been at play in this situation.
I am clearly, within the scope of this paper, not going to be able to go into each and every aspect which was taken into account by the legal team in order to assess the tactics and strategy of the case. Suffice it to say that we developed a dual strategy. We would initially plead not guilty with a view to challenging the credibility of the State witnesses and the admissibility of the confessions and the pointings-out; But one thing we agreed on with our clients and that was that we would not put up a version of denial. This was because we agreed that our strategy would be to save as many of the accused from the death penalty as we possibly could and that therefore the case would focus on extenuation rather than acquittal. Fortunately, the strategy was successful in that after six weeks of fighting the merits of the case, in which we went some way towards denting the credibility of the chief state witness (the fifth scab who had escaped) the State indicated that it was prepared to plea bargain.
The plea bargaining lasted for some months during which time we went back and forth to our clients repeatedly in attempting to secure the best deal for them. What was eventually agreed with the State was that 10 of the 18 would be taken out of the common purpose to murder and would plead guilty to the more minor offences of assault, abduction and intimidation. The eight remaining accused would plead guilty to murder with agreed facts. Accordingly, the case became an extenuation case for these eight, and a mitigation case for the other ten.
The method of presentation of the agreed facts was important. By this stage, we had had preliminary consultations with social psychologists, clinical psychologists at the University of the Witwatersrand including Lloyd Vogelman, sociologists, labour experts and Unionists both from SARHWU and COSATU. The presentation of the agreed facts needed to take into account a model that we were developing to indicate the level of conflict escalation which occurred during this strike. We needed to show the court that there were such compelling factors which existed during this massive conflict between SATS and the State on the one hand and the workers and the Union on the other hand, that the effect was ultimately to reduce the moral blameworthiness on those who were directly responsible for the killings.
Before we look at the extenuation case itself, a note on the concept of guilt as distinct from extenuation is probably appropriate.
When one is indicted with murder in South Africa, the trial will go through two stages. Firstly, the court will have to decide whether or not the killing was unlawful. Accordingly, assuming that the accused has contributed to the killing of the deceased, in order for that accused to show that the killing was lawful in the circumstances he will have to raise one of the recognised defences to the crime of murder namely provocation, intoxication, compulsion, beliefs (generally witchcraft), self-defence and mental defect which will indicate that there was no capacity to form legal intent. As we have said, this is an investigation of the lawfulness or otherwise of the accused's action. If the accused fails in his defence, he will be convicted of murder and the court will now be required to sentence the accused. This involves the second phase of the murder trial namely the extenuation phase where the moral blameworthiness as distinct from the legal blameworthiness (the lawfulness enquiry) is assessed by the court. The enquiry into the presence or absence of moral blameworthiness, involves, as Professor Dennis Davis of the UCT Faculty of Law has succinctly put it in a. recent article in the South African Journal of Criminal Justice,3 an investigation into much the same factors as in the first part of the trial except that here, "the court's investigation into the existence of extenuating circumstances consists of an enquiry into whether the criminal intent of the accused can be classified as a criminal intent of lower legal force and effect" (page 210 - my emphasis) so, the enquiry now becomes one in which the court is required to exercise its discretion to determine the "moral guilt" of the accused.
If the court finds that there were no extenuating circumstances present, the death penalty is mandatory. It is only once extenuating circumstances have been found to be present that the court may impose a lesser sentence.
It should also be noted that by the law of common purpose (common law in most Western jurisdiction "in cases in which charges of murder are based on the common purpose .an accused can be convicted where he manifests an active association with the acts of. the mob which caused the death of the deceased. The acts of the mob are imputed to each accused who are considered to share a common purpose with the mob to kill the deceased." (Davis - page 213).
Taking the above into account, our task in the COSATU House case became one of indicating to the court that there were factors present which led to the killing of the. four scabs which reduced the "moral blameworthiness" of those who had pleaded guilty to murder. We began the preparation of this part of the case by developing a picture of the strike using sociological and social psychological tools. The counsel who coordinated this was Martin Luitingh of the Johannesburg Bar assisted by a variety of professionals including Mark Anstee of the Labour Unit at the University of Port Elizabeth, Andrew Colman, reader in social psychology at the University of Leicester in the UK, Dr Scott Fraser, a Professor of social psychology in the Department of Psychology at the University of California in Los Angeles, Professor Kotze of the Department of Anthropology at Rand Afrikaans University and Lloyd Vogelman of the University of the Witwatersrand Psychology Department, a clinical psychologist and Director of the Centre for the Study of Violence and Reconciliation.
After preliminary consultations with this range of experts we were able to finalise the presentation of the facts to be agreed by the State. As you can well imagine, to have agreed facts in a trial such as this is a great advantage because when the various accused give evidence what will be tested is not their recollection of the facts (thus introducing all kinds of problems on the credibility level) but rather the motives and intentions behind various acts and decisions. We then attempted to represent the information at our disposal in various diagrammatic forms. Each of the experts was briefed with a set of diagrams, a set of the agreed facts and a set of documents compiled by the attorneys and counsel reflecting the proliferation of the dispute.
The diagrams cannot possibly show all the factors that operated, but provide a graphic illustration of the kinds of issues that escalated the dispute between SATS and SARHWU and its members beyond any manageable proportions. The propensity for violence increased with time.
Some overriding factors need to be mentioned. From the beginning of the dispute, (taken as being Andrew Ndzamba's dismissal on the 13th March) management of SATS was backed up in its positions by the security forces. This was justified on the basis that transport is a key industry, the provision of which needs to be protected by the security forces if necessary. It was also justified at times on the basis that there was a state of emergency and that SARHWU was a militant and revolutionary Union.
On the other hand, SARHWU was presented with a strike for which it had not planned. SARHWU was a relatively new Union in the COSATU stable. At that stage (and in fact to this day) it has had to deal with an intransigent management which is not inclined to agree to negotiating procedures or a recognition of the Union. Workers at SATS are, in the main, hostel dwellers who are massively underpaid and who do not have a history of Union membership and all that it entails precisely because of SATS' discouragement of Unions. In fact, in opposition to SARHWU, SATS has throughout the decade attempted to establish its own "sweetheart" Union namely BLATU. Indeed, the entire code regulating SATS' labour relations practice was not applicable to black workers in 1987. Thus the massive resentment at the City Deep Depot when driver Andrew Ndzamba was dismissed on the 13th March. The extenuation case commenced with each of the eight murder accused testifying. Their testimony concentrated on their personal circumstances prior to the strike, their responses to the strike and-the way in which they ultimately became caught up in events which took place in the basement hall of COSATU House. What emerged was a picture of strikers being forced, by virtue of the repression inherent in the strike, into meeting each day, as a means of comfort, security and continuity in the basement hall of COSATU House. As the strike became more and more desperate (on the 31st March management refused to continue negotiations and by the first week in April evictions were taking place at hostels and police were enforcing directives) the workers in the basement hall became a kind of parliament for the conducting of the strike. Whereas more senior members of the co-ordinating committee of the Union met on the 8th and 9th floors of COSATU House, the rank and file workers, who had now appointed an illiterate but charismatic figure, Bongani Sibisi.(later to become accused no. 1) as their chairman, increasingly took the day-to-day decisions on the enforcement of the strike.
Without strong and disciplined and developed shop stewards' input, the situation in the small hall rapidly took on the atmosphere of a people's court. Reprimands, beatings and assaults on strike-breakers became the order of the day as SATS and the State increased .their repression in the form of evictions, continued police presence and arrests. The 22nd April 1989 was a watershed day. It was the deadline set by management of SATS for a return to work alternatively a mass dismissal of all the strikers. By now the original City Deep strike had spread around the country with tens of thousands of workers on strike in the Transvaal alone. Dismissal notices were issued on that day4 but far more inflammatory was the news received at COSATU House that a meeting by Germiston strikers had been broken up by police with bullets, teargas and sjamboks. There were reports of deaths of SARHWU members (which were true) and the news was transmitted to the basement hall. Workers, some of whom were daubed with white markings by an in-house witch-doctor, and some of whom were armed with knobkerries, proceeded to Doornfontein station to catch trains to Germiston to investigate and retaliate. An incredible pitched battle took place between police and these workers in the surrounds of Doornfontein station during which one policeman was seriously injured and a number of workers killed. The remaining workers fled back to COSATU House. Thereafter COSATU House was besieged by the security forces and a significant number of assaults of workers by security forces took place within and outside the building.
Leadership figures within the Union were increasingly being arrested, thus lessening the degree of discipline required to hold back the explosion of violence. By now there was an ongoing process of assaulting of scabs against the background of the burning of railway property including trains. So by the time that the four deceased workers were brought into the basement on the 28th April, it was practically a foregone conclusion that there would be calls for their death. This is not to say that when the matter came up for consideration on that fateful day, there were not dissenting voices including that of the chairman Sibisi. But by this stage the group dynamic within the hall was such that death was the penalty which was most favoured.
Each of the accused who participated in the arrangements pursuant to the killing, the securing of the vehicle, the transporting of the already assaulted victims, the acquisition of crude weapons and means of killing (the knife, the petrol, and the rock) seemed to go about the deed in an almost transfixed and autonomous state.
It was this scenario that drove us to rely heavily on the learning of social psychologists. Of course, we were not the first defence team to rely on this area of study. Already, in 1986, the legal team headed by David Soggot in the Maki Skhosana trial (the infamous Duduza necklacing caught on video and seen by hundreds of millions of people across the world) had led the expert evidence of Professor Edward Diener, a social psychologist who specialised in the phenomenon of de-individuation. Our counsel studied his evidence and travelled to America to meet with him. He pointed out, quite correctly, that the Skhosana phenomenon of de-individuation (which was accepted in part as constituting extenuating circumstances by the trial judge in that court) was not applicable in the same sense in our case as it had been in that case. With the Skhosana necklacing, one was dealing with the spontaneous and almost instantaneous process of de-individuation, arising out of one mass open-air meeting, whereas in our case one was dealing with a build-up of social psychological situational forces over a period of months. De-individuation had to be seen within the context of a whole range of situational forces developing within the hall (and outside of it) those of learned helplessness, bystander apathy, obedience and conformity. Diener referred us to Dr Scott Fraser in California who was of great assistance and eventually testified in the trial. We also recruited the services of Dr Andrew Colman, a reader in social psychology based at the University of Leicester. Both of them were fascinated by the case and applied their learning in respect of situational forces and deindividuation to each of the eight accused. Their testimony was fully accepted by the court a quo as being cogent and of great relevance to the extenuation case. They were backed up in their psychological assessments by the evidence of Lloyd Vogelman who testified on the clinical picture of each of the eight accused.
The labour expert Mark Anstee from UPE took the court through the sequence of the strike explaining the degree of polarization which pre-existed the strike and increased rapidly during its course. He pointed out to the court the devastating effect of the intransigence of management and its ultimate refusal to negotiate.
Professor J C Kotze testified on the phenomenon of "community consciousness" which he had detected in studying various rural African communities in the Transvaal. Judge Spoelstra found his evidence to be cogent and compelling and to be of application to the eight workers involved.
Mr Justice Spoelstra's judgment on sentencing represented both a victory and a defeat. He found that we had presented a compelling extenuation case and rejected very little of the academic input. However, he found that extenuating circumstances were only present in respect of four of the eight murder accused and accordingly was compelled to sentence the other four to death. The matter is on appeal.
His distinction between the two groups of accused was based on a judgment in the Appellate Division by Mr Justice Corbett with four other judges concurring, in the appeal of Robert McBride, the ANC guerilla.5 He relied on an assertion in that case to come to the conclusion, in effect, that the brutality of the offence may outweigh extenuating circumstances.
We are of the view that this is an incorrect reading of the McBride decision and are appealing the death penalty for the four on this basis. We have stated in our grounds of appeal that we do not believe that anything can outweigh extenuating circumstances - either there are extenuating circumstances or there are not, and that it is incorrect to find that extenuating circumstances can be negatived.
I will not dwell on this legal question because for the purposes of. this paper it is a side issue. All that I would wish to note in this regard is that Judge Spoelstra's judgment underscores Dennis Davis' criticism of the notion that only where there are extenuating circumstances does the Judge have the discretion to impose a lesser sentence than the death penalty. My understanding of his argument is that the enquiry into the presence or absence of extenuating circumstances is already a subjective and discretionary enquiry. A great deal of time in extenuation cases is spent in determining whether individual extenuating factors add up to extenuating circumstances as a whole, as if the enquiry is an objective and scientific one. What Davis is arguing is that even if a Judge is not able to find extenuating circumstances, the Court should have the residual discretion to impose a lesser sentence.
In conclusion, I wish to point out that it was much easier in the SARHWU case to establish that the course of action was not to put up an alibi version but rather to concentrate on establishing the most favourable set of agreed facts and to argue extenuation around these facts. This strategy was almost thrust upon us by the relative ease with which the accused confessed to their crimes and the plethora of evidence which was available to the State. What I wish to submit, however, is that it is difficult enough to run an extenuation case in the courts without having the problems of credibility that arise from a failed alibi defence.
1 Most of these matters concern necklace murders, the most well-known of which is the Gqeba case, a matter in which five persons who were already on Death Row are being re-charged after having had their trial quashed by the Appellate Division this year when it was found out that one of the assessors was improperly excused.
2 Section 29 of the Internal Security Act allows for a person to be held in solitary confinement for periods up to six months (in practice the period is often extended) if a senior police officer has reason to believe that that person has information in relation to, or has committed, certain security-related offences.
4 The mass dismissal by the general manager of SATS (which was proclaimed in a Government Gazette of April 22) was ultimately reversed after the Union and COSATU instituted an action to invalidate dismissal in the Supreme Court. SATS collapsed in their defence of the case before the matter came to Court because they had not followed the correct procedure in effecting the dismissal. Thus, the final irony of the strike was that notwithstanding the degree of violence, all strikers who were not convicted of any offence were reinstated.