The enactment of the Criminal Law Amendment Act on 27 July introduced changes in the law relating to capital punishment. However, the death penalty was not abolished and was subsequently passed on Charles Bongani ZWANE in a case where the defence had argued political motivation. In September three Umkhonto we Sizwe combatants had their death sentences replaced by prison terms when the Court of Appeal used its new powers.
All the major provisions of the Bill reported in Focus 89 were passed, most notably to remove the mandatory death penalty after conviction for murder without extenuating circumstances and to leave the sentence to the discretion of the presiding judge. Most changes increased judicial discretion and broadened access to legal representation.
A significant new measure, introduced at the committee stage of the Bill and in the face of judicial opposition, increased the powers of the Appellate Division at the expense of individual Supreme Court judges. The Court of Appeal may now not only reverse the sentence of the trial court where it believes the latter has acted in error but may also set it aside if it 'is of the opinion that it would not itself have imposed the sentence of death'.
An attempt to amend the bill by restricting the death penalty to convictions for murder was rejected but there was a reduction in the number of capital offences. In treason cases the death penalty is now limited to acts 'committed when the Republic is in a state of war'. Terrorism, which under the Internal Security Act has the same penalties as treason, is similarly restricted. In recent times the regime has rarely imposed the death sentence for terrorism or treason, preferring to use the common law charge of murder to execute its political opponents.
The death penalty has been abolished for those under the age of 18 years at the time of their alleged offence and also for housebreaking and attempted housebreaking. It remains for robbery or attempted robbery 'if the court finds aggravating circumstances to have been present', as well as murder, rape, kidnapping and child-stealing.
A review procedure conducted principally by judges and former judges will now consider the cases of all those people already sentenced to death who have exhausted all legal remedies.
A number of changes have recently been made by the administrations of three of the four 'independent' bantustans, which have all used the death penalty. In June the military authorities in the Ciskei bantustan abolished capital punishment, replacing all death sentences by terms of life imprisonment.
The Transkei bantustan has had a moratorium on executions since October 1989 and a committee set up to review the death penalty met for the first time in August. It hoped to complete its work by November. Some 85 prisoners were reported to be awaiting execution in Transkei, none known to be political cases.
At least six political prisoners are believed to be awaiting execution in the Bophuthatswana bantustan where, since October 1989, all prisoners sentenced to death have had an automatic right of appeal. It was also announced earlier this year 'no people under the age of 18 would be sentenced to hang' but it was not clear whether the age referred to the time of sentencing or of committing the offence.
In September three ANC combatants who had claimed prisoner-of-war status and refused to recognise the court at their trial in April 1989 had their death sentences replaced by 25-year prison terms by the Court of Appeal in Bloemfontein. Giving judgement, Justice Friedman said that he did not consider the death sentence was the proper sentence in this case. Jabu Obed MASINA, Frans Ting Ting MASANGO and Neo Griffith POTSANE were ordered to serve the 25 years concurrent with a similar term already imposed for lesser counts in the same trial.
Evelina DE BRUIN, the only woman among over 300 prisoners awaiting execution at Pretoria Central Prison, was moved in August to Upington Prison, close to her Northern Cape home, pending an appeal in May 1991.
Continuing trials: While some cases had been dropped and bail seemed to be more freely available, other long-running trials continued into August and there were examples of serious new charges being laid. Some of these were formulated in terms of the Explosives or Arms and Ammunition Acts, where previously the Internal Security Act might have been used. When the trial of Tony YENGENI and others resumed in the Cape Town Supreme Court on 1 August, bail was granted to Michael Mzimkhulu LUMBAMBO, Mbutu Richmond NDUKU and Wellington Mongameli NKWANDLA, but refused to Jennifer SCHREINER and Yengeni. Lumka NYAMZA initially refused bail in solidarity with her husband, Yengeni, but accepted it on 28 August.
The state resubmitted a lengthy statement by Schreiner which they had previously withdrawn in March. The defence challenged this alleged confession and the judge ordered that the onus was on the state to prove its admissibility. In order to substantiate Schreiner's charges of torture, assault and threats by security police, the defence was allowed, within strict limits, to submit evidence from some other detainees.
Two ANC members were convicted in the Johannesburg Regional Court on 18 September after the Transvaal Attorney-General rejected defence representations to have their trial dropped following the Pretoria Minute. Johannes MAHLASELA (33), a South African Breweries worker, pleaded guilty to causing an explosion at the home of the mayor of Thokoza in October 1989 and also admitted possessing arms and ammunition. Esau MACHITJE (29) admitted being present when Mahlasela threw a grenade at the house. Both men were granted bail pending sentence although the state had opposed this for Mahlasela.
In an earlier case in the Johannesburg Regional Court, in June, Jongile DOLO, an alleged member of the ANC, told of being tortured and assaulted by police. Dolo, who was detained on 21 May 1989 in Katlehong, faced two charges of terrorism.
After almost seven months in detention under Section 29 of the Internal Security Act, Jacob RAPHOLO, an alleged ANC combatant who was shot at the time of his capture, appeared in the Pietersburg Regional Court on 2 August on charges of terrorism, murder, robbery and possession of arms. Rapholo's detention was linked in the press to the killing of a policeman at a Pietersburg park. He was due to appear again on 17 September.
Police allegations in July of a communist plot against the government have been followed by at least three separate trials. The first court appearance was by Jabulani XIMBA (39), a laboratory technician at the University of Zululand and an alleged MK combatant. He went into hiding on 16 July after a raid on his house. He took refuge briefly in the US consulate in Durban on 23 July but left the following day and was charged under the Arms and Ammunition Act with the illegal possession of hand grenades, limpet mines and explosives. He was later bailed to appear on 14 September.
Siphiwe NYANDA (Sipho Nyanda in Focus 90) was refused bail when he appeared in the Durban Regional Court in August charged under the Explosives Act. He was detained on 12 July, almost two weeks before this was made public. Nyanda, a sports reporter with The World before he left the country in 1977, was said to have had military training and returned to South Africa in 1988. He remained undetected until arms were discovered at a rented flat in Durban. Nyanda was refused bail and remanded in custody to appear on 29 October.
Also refused bail, under Section 30 of the Internal Security Act, was Jeremy SEEBER (24), a student. His actions, which included causing explosions, were said to have begun in 1986. He was due to appear again on 2 October.
