As we have seen in Chapter 3, detention without trial, besides serving to withdraw political opponents from circulation, is very often a precursor to further actions designed to extend their removal and even to make it permanent.
Such post-detention measures include:
banning and restriction orders;
These weapons are described in the following HRC documents:
Banning and Restriction of Persons (March 1989)
My Home, My Jail (1989)
Political Imprisonment in South Africa (May 1990)
Death Penalty in South Africa (October 1989)
The repression merry-go-round is well illustrated in Fig. 1, Chapter 1, showing how political activists, once identified, can be drawn into a cycle of detain/release/ban or detain/charge/convict/imprison and even execute, all within the ambit of the law. In some cases the detention step may be leap-frogged. In a later chapter we shall see how, as a last resort, the law may be dispensed with, and abduction and assassination brought into play.
BANNING AND RESTRICTION OF PERSONS
HRC, March 1989
1. Riotous Assemblies Act
2. Suppression of Communism Act
3. General Law Amendment Act
4. Internal Security Act
1. Bannings under the Riotous Assemblies Act
The Riotous Assemblies Act of 1930, in a provision introduced by General J.B.M. Hertzog's government, empowered the minister of justice to prohibit any person from being in any area when he is satisfied that such person is 'promoting feelings of hostility between the European inhabitants of the Republic of South Africa on the one hand and any other section of the inhabitants of the Republic of South Africa on the other hand'. A person banished from a particular area under this statute was not entitled to a hearing by the minister before the order was made, nor could he or she appeal against the order.
2. Bannings under the Suppression of Communism Act
When the National Party government came to power in 1948; it preferred to use the wide-ranging provisions of the Suppression of Communism Act (SCA) of 1950, which were more far-reaching. Section 10 of this Act empowered the minister of justice to issue an order imposing severe restrictions on the freedom of movement and expression of any person when he is satisfied that such a person advocates communism or engages in activities that further the aims of communism (which was widely defined). An order of this kind is generally known as a 'banning order' and it confines the person to a particular area as well as obliging him or her to report periodically to a police station. It may go further by restricting the person to his or her residence at all or specified times, in which case the restriction is known as 'house arrest'. In most cases, house arrest is accompanied by a prohibition on having more than a certain number of visitors at home. Banning orders were generally valid for a period of 5 years.
The first banning orders were issued in 1951. The minister of justice said in 1953 that by then 122 people had received such orders. A total of 517 people had received banning orders by 1965. By 1978, a further 841 people had been banned.
3. Bannings under the General Laws Amendment Act
In 1962 the General Law Amendment Act, No. 76 increased police powers to arrest persons who had left the area to which they had been confined in terms of their banning orders and to forcibly return them to the areas concerned. It widened the scope of legal action that could be taken against those people who were listed as being members or active supporters of an organisation that had been declared unlawful (namely the Communist Party) or people who supported the African National Congress (ANC), the Pan Africanist Congress (PAC), Congress of Democrats, Umkhonto weSizwe, Poqo and who supported organisations thought to be acting on their behalf.
The effect of the General Law Amendment Act was to widen the scope of activities that could be restricted and, in so doing, to widen the power of the state to curtail the movements of individuals. The definition of a 'gathering' was widened from being a 'gathering, concourse or procession in, through or along any place, of any number of people having a common purpose, whether such purpose be lawful or unlawful'. This, in effect, meant the minister could ban persons from specified gatherings not having a common purpose, such as social gatherings.
Bannings of persons 1951-1985
4. The Internal Security Act
Political opposition in the 1950s and 1960s had to a large extent been stifled by the extensive police powers of detention and banning. Opposition began to be rekindled around 1968, peaking around 1976. The ideology of black consciousness had become a dominant intellectual influence. The background of an economic recession and consecutive waves of labour unrest sparked off political protest, which was met by intensified state repression in 1976. The targets of this repression were black consciousness leaders, trade unionists and students. The Internal Security Act (ISA) of 1976 amended the SCA of 1950, in terms of which banning orders were issued. Whereas the application of the SCA was confined to those engaged in, or propagating 'communism', the ISA extended the application to those who were deemed to endanger the security of the state or the maintenance of public order. (The powers of banning of persons under the ISA are detailed in Chapter 2.)
The General Law Amendment Act made provision for the minister to publish the names of banned persons in the Government Gazette. If all efforts were made on the part of the state to notify a person of his or her banning order without success, notice could be published in the Gazette, whereupon it was assumed that the person was banned from that date onwards. Another new provision of the Act was the provision to remove the name of a listed person from the consolidated list if 'good cause was shown'.
Under section 56 of the ISA, it is an offence to quote, in a publication, any of the persons whose names appear on the Consolidated List. Doing so carries a prison sentence of up to 3 years. People cannot be quoted if:
At the time of enactment of the Internal Security Act (ISA) of 1982, people's names were on earlier lists compiled in terms of the Suppression of Communism Act of 1950 or the ISA of 1976. The 1982 law made it possible for some names to be carried forward.
They have been convicted of specific security offences or of treason.
The minister is satisfied that a person acts in a way that endangers state security or the maintenance of law and order or that he or she promotes the objects of communism.
The revised ISA of 1982 dealt with categories of restricted persons and the requirements of restricted persons and also set up a board of review. However, no bannings took place under the Act from October 1982 and it was speculated that the government might be easing up on banning orders. But the apparent relaxation was short-lived. In 1985, following a renewed upsurge of political resistance in the black townships, a partial State of Emergency was declared in terms of the Public Safety Act of 1953 and this became a new mechanism for serving people with banning orders. Persons detained in terms of the Emergency regulations could be released subject to certain conditions, which amounted to a new form of banning in terms of Section 3(b) of the emergency regulations, imposed by the minister of law and order. The minister was not required to publish the names of the affected individuals. The conditions only expired on the termination of the State of Emergency and contravention of the regulations carried with it a penalty of a fine of up to R20 000 or up to 20 years' imprisonment without the option of a fine.
In November 1986 a new type of restriction order issued in terms of regulation 7(1) was served on persons other than those released from detention. By the end of 1986, 36 persons were known to have been issued with such orders in Johannesburg. Banning and restriction orders have been widely used during 1988 and 1989. The crackdown on 17 organisations in February 1988 was coupled with restriction orders on 12 people that were so severe that they amounted to house arrest. The restrictions were imposed in terms of Section 6(b) of the Emergency regulations.
The banning of an anti-apartheid conference in September 1988 saw restrictions being placed on leaders crucial to the organisation of the conference for periods of less than 2 weeks. This was aimed at specifically preventing them from mobilising their constituencies at the conference without provoking the outcry that would have followed their indefinite restriction. Some of the restriction orders went as far as explicitly prohibiting them from calling for a boycott of the municipal elections. Among those restricted were 3 executive members of the Congress of South African Trade Unions (COSATU), 7 Cape Town activists, 3 members of the black consciousness movement in Bekkersdal, 6 Soweto leaders of affiliates of the United Democratic Front (UDF), a UDF leader from the northern Cape and 2 unionists from Pretoria. The build-up to the municipal elections on 26 October 1988 saw intense state repression. Regulations were promulgated enabling the minister of law and order to place activists under house arrest or to place them under an area restriction simply by placing a notice in the Government Gazette. This was aimed at silencing people who were on the run and who could not be traced by police.
Restriction orders have also been frequently served on former detainees or political prisoners. The ANC leader Govan Mbeki was served with such an order on his release from prison, after having served a 23-year sentence on Robben Island. The order prohibits him from leaving his hometown of Port Elizabeth, speaking to journalists and assisting in the publication of any material. In June 1988 he was served with tougher restriction orders preventing him from attending a gathering of more than 10 people.
The restriction orders often have the effect of prohibiting the person from returning to their profession or the conditions of the order are so constraining that they render the person unemployable. Banning orders have also been imposed as the condition of a suspended sentence, as happened in the Delmas treason trial. They are also frequently incorporated as part of the condition of bail. Those involved in the Alexandra treason trial are subject to such restrictions.
Example of a Notice under Regulation 3(8) of the Security Emergency Regulations of 1988:
Under paragraph (8) of the Security Emergency Regulations, 1988,1 hereby order that X, who is being detained in terms of regulation 3 of the said regulations, be released on 5 September 1988 on the conditions set out in the schedule hereto. Signed: Adriaan Vlok
Schedule: Conditions of release
Under regulation 3(8)(b)(I) of the Security Emergency Regulations, 1988, you are hereby notified that your release from detention in terms of regulation 3 (8)(a) shall be subject to the conditions:
a) that you shall not, as from the date of your release, without the written consent of the Divisional Commander of the Security Branch of the South African Police for the Witwatersrand Division:
1. take part in any manner whatsoever in any of the activities or acts of the following organisations:
United Democratic Front Johannesburg Democratic Action Committee National Education Crisis Committee National Education Union of South Africa
2. Be outside the boundaries of the magisterial district of x at any time;
3. Be outside the boundaries of the premises situated at.... in x (X's address) between the hours of 18h00 and 06h00;
4. At any one occasion, receive more than 4 visitors at the above premises;
5. Attend or stay present at any meeting consisting of five or more persons (including yourself), convened or otherwise brought about for the purpose of discussing some or other matter;
6. Contribute, prepare, compile or transmit in any manner whatsoever any matter for publication in any publication as defined in the Media Emergency Regulations, 1988, or assist in any manner whatsoever in the preparation, compilation or transmission of any matter for publication;
7. Take part in any interview with any journalist, news reporter, news commentator or news correspondent;
8. Be present on or enter upon any premises occupied by an educational institution which provides formal education as defined in section 1 of the National Policy for General Education Affairs Act, 1984 (Act 76 of 1984);
(b) that you shall, as from the date of your release, report daily to the officer in charge of the Charge Office at the.... Police Station, between lOhOO and llhOO and between 15h00 and 16h00, subject to such exemptions as the Divisional Commander of the Security Branch of the South African Police for the Witwatersrand Division may at any time authorise in writing.
MY HOME, MY JAIL
The Case of Restrictees in South Africa
HRC, March 1990
1. Consequences and implications of restriction orders
1.1 Social and emotional effects
Although the aim of restrictions was to control an individual's political activity at the individual's rather than at the state's expense, it must be emphasised that an individual's personal and social life were also severely affected.
Restrictions created numerous problems, which affected all aspects of the restrictee's everyday life over an indefinite period of time. For restrictees, their homes were their Jails and they and their families were the jailers. This entailed a constant need for vigilance. Forgetting to report or failing to notice that an additional person had joined the group of people one was talking to could have resulted in a criminal charge. There was no space for spontaneity or forgetfulness. The restrictees and their families had to be on their guard constantly as police could arrive at any time and any number of times during the night to ensure that restriction orders were being complied with.
Many restrictees were effectively denied a family or social life. Even weddings, funerals, birthday parties and other family get-togethers constituted a contravention of the limit on the number of people with whom restrictees could meet - a limit sometimes as tight as 4.
Between 1984 and 198 6, it was common for activists to be visited arbitrarily at all hours of the night at their homes by the police and defence force. Restriction orders made it 'legal' for police to arrive at any time, unannounced, to 'check up' on a restricted detainee. Because of police visits and the vulnerability of the restrictee to right-wing attacks, families stayed at home in order to protect the restrictees. This, in effect, amounted to a curfew on the whole family. The whole family was harassed and intimidated, not just the individual.
1.2 Psychological and physical effects
When one talks about the psychological and emotional effects of restrictions, one is not only dealing with the effects of restrictions but also the after-effects of the detention itself.
The effects of detention fall under the psychological category of post-traumatic stress disorder (PTSD). The symptoms include flashbacks of the violence related to the arrest, period of detention and interrogation; recurring nightmares; difficulties experienced with sleeping, eating and drinking; loss of memory; an inability to concentrate; anxiety, depression, anger, irritability and problems with interpersonal relationships.
Restrictions resulted in a situation where the trauma continued. The restrictee had to cope with ongoing anxiety and stress. Therefore the psychological effects are better described as continuous or ongoing stress. Furthermore, having to deal with undermining and debilitating daily trauma and real threats to freedom and existence, the restrictee was also a victim of cumulative stress. It is difficult, if not impossible, for restrictees to recover from any psychological or physical ailments when they continue to live in a hostile and threatening world. Restrictees were continually exposed and vulnerable to the very real danger of assassination and physical harm to themselves and their families.
Having to report to the police station once or twice per day resulted in the individual having to confront memories of the past on a daily basis. Also, having to expose oneself daily to the police, some of whom might have been involved in the arrest or interrogation, must have certainly undermined self-esteem and confidence. Being unable to secure a job or return to school also weighed heavily on the emotions and self-esteem of the restrictee.
Many restrictees were in poor health, particularly those who embarked on hunger strikes. Many were unable to leave specified townships in order to receive medical treatment for their ailments. The same problem applied to receiving legal assistance. When attorney Dhaya Pillay applied for a relaxation of the restriction orders of former detainee Sandile Thuse (who was on hunger strike for 37 days) so that he could consult a doctor, although she applied 3 weeks in advance, the date for the appointment had passed and there had still not been any word from the police.
Restrictees could not even take a short family holiday to recover from the effects of detention and the hunger strike because most were under house arrest from sunset to sunrise.
1.3 Education and the workplace
Restriction orders often had the effect of prohibiting restrictees from returning to their occupation; for instance, educationalists were forbidden to set foot at any educational institution. Sometimes the conditions of the order were so constraining that they rendered the person unemployable.
Having to report to the police once or twice per day, often at times that cut into worktime, made it very difficult for restrictees to find employment. A reporting restrictee would always arrive late for work and had to leave early to report at the police station. Being limited to a single magisterial district added to this difficulty, as employment was almost impossible to come by in the townships.
Having to account for 2 or 3 years of one's life in detention often colours a prospective employee in the eyes of the employer. The employer feels that the applicant is a 'jailbird' and a potential troublemaker. Employers do not want political activists on their staff and in the unions.
Many children who were released from detention with restrictions (and without) are refused admission to school because they are 'too old' or because the headmaster fears that they are troublemakers and will incite other pupils to contravene regulations or rules.
Restricted children generally had to be home at 6p.m. or 7p.m. Those who had to report twice per day usually had to do so between 4a.m. and 10a.m. and 2p.m. and 6p.m. This prevented them from participating in extramural activities during the day and in the evenings. Many students coming from overcrowded homes were denied their only quiet study time as they were prevented by their restrictions from studying at university libraries in the evenings.
1.4 Financial Costs
Restrictees had to pay their own travelling expenses to report once or twice per day to the police station despite the fact that many of them had no income.
Many, if not most, detainees required medical care on their release. By releasing and restricting people, especially those who were on hunger strike, the state no longer had to pay medical costs. It is more than cruel to refuse a person who needs medical care the ability to earn a living while forcing this person to bear their own medical costs.
1.5 Harassment, attacks and assassination
Restrictees were open to attack and many were continually harassed. Before their detention, many had been attacked in their own homes, yet they were forced to remain in their homes and were prevented from going into hiding as a result of their restriction orders.
Restrictions were clearly associated with harassment and attacks although the identity of the perpetrators of such crimes was not always evident. The harassment included physical and psychological harassment, vigilante attacks, banishment to far-away places, police visits, virtual house arrest, assaults and assassinations. The ex-detainees who were served with restrictions were particularly vulnerable; as their whereabouts were well known since they had to report to a police station once or twice a day. This made them easy targets for intimidatory attacks.
POLITICAL IMPRISONMENT IN SOUTH AFRICA HRC, May 1990
1. Introduction and definitions
3. Political trials
4. Political prisoners
1. Introduction and definitions
Within the South African context, the simplest and most essential definition of a political prisoner is a person who is in prison as a direct result of opposition to the system of apartheid. This opposition can take many forms ranging from peaceful protest to participation in political unrest or opting for armed struggle. Acts viewed as normal political opposition in most other countries are criminalised in South Africa. Not only are political activists turned into criminals but legitimate and peaceful acts of opposition are also criminalised.
A definition of political prisoners must include those jailed for their political beliefs and associations. Also those whose deeds are considered a threat to state security and those who acted with political motives in a mass political uprising. Even those whose 'crimes' are simply related to political goals - as opposed to being in pursuit of them - should be included, provided there is a clear political motive. These norms do not judge the validity of the political motivation or of the tactics. Rather, the mere existence of the antagonism between the individual and the government is sufficient to call the person a political offender. Translated into specific statutory categories this definition means all of the following are political prisoners:
Those convicted under the Internal Security Act 74 of 1982 or its predecessors.
Those convicted of the common law crimes of treason, sedition and related offences.
Those convicted of other common law crimes, which are politically related, such as public violence.
Certain persons convicted under the Explosives Act of 1956 and the Arms and Munitions Act of 1969.
Those convicted under the Emergency regulations.
Administrative detainees held under the detention provisions of the Internal Security Act or the State of Emergency regulations.
Prisoners held under the legislation of the Transkei, Ciskei, Venda and Bophuthatswana.
The official figure for what it calls 'security prisoners' was given in parliament as 347, as at 31 March 1989. Using the definition outlined at the start of this report, the HRC estimates that there are between 2500 and 3000 political prisoners in South African prisons.
There is a plethora of laws and regulations, which govern political activity in South Africa. Since 1948, when the National Party imposed apartheid on South Africa, it has consistently used parliament and the law courts to implement this policy and to stifle opposition to it.
One of the first steps that the National Party government took was to introduce the Suppression of Communism Act under which the Communist Party of South Africa, until then a legal political party with members in parliament and in local government, was banned. The Act was so broadly worded that any opposition to apartheid could be branded as 'communist' and therefore unlawful.
Political activists involved in peaceful protest have found themselves in contravention of these laws, which criminalise activities that in any democratic country would be considered normal, legitimate and healthy political opposition. Such persons have faced charges for offences ranging from an unlawful gathering or possessing banned literature, to subversion, treason and terrorism. Many have been convicted for public violence, arson, malicious damage to property, incitement and intimidation and some for murder. Convictions and sentences have been heavily dependent upon the interpretation of the courts and often without regard to the causal link between the apartheid system and the circumstances leading to violence.
In most cases it is the opinion of the cabinet minister or other executive official, which determines whether a person, organisation or activity needs to be acted against. Once such action has been taken, whether through banning or restriction, and the person or organisation contravenes whatever restrictions have been imposed, the courts are left to decide on their guilt. The decision of the court is not based on the justness of a particular law or statute. It has to decide whether an offence has been committed purely in terms of the law. Thus, what seems a totally legitimate act - for example, that of reading a book espousing the principles and objectives of a political organisation - becomes a crime because the state has passed a law saying so.
The state has in the past consistently argued that 'there are no political prisoners in South Africa. Rather, people have been imprisoned for breaking the law.' The state attempts to legitimise its suppression of opposition by posturing as the upholder of the law. The same state has, however, ignored the law when this has been expedient. In cases where the law did not favour a course that the state wanted to follow, the law was| changed. When the courts handed down judgements, in terms of existing law, that overturned actions of the state, amendments were introduced which allowed the state to prevail. This means that the independence of the judiciary in South Africa is an illusion. As new strategies of resistance develop in opposition to apartheid, so they are repressed by laws, which are continually being updated.
3. Political Trials
The South African government sees long political trials as a means of keeping prominent activists out of circulation for extended periods of time, even if many are eventually acquitted. An example of this is the first Delmas treason trial, which lasted for 4 years (1985-1988); 22 people were accused and 10 were released on bail after 3 years. The rest were held as awaiting trial prisoners for the full period of the trial. Ultimately 5 people were convicted and sentenced; the rest received suspended sentences or were acquitted.
The ever-increasing number of political trials is an indication of the efforts of the state to criminalise and neutralise legitimate political opposition.
TRIALS DURING 1989:
No. of complete political trials recorded by the HRC 395
No. of accused involved 3183
No. of people convicted 493
No. of people acquitted or charges withdrawn 2690
Treason 154 b
Possession of arms or explosives 28
Furthering the aims of a banned organisation 25
Possession of banned literature 12
Illegal gathering 37
Various other Internal Security Act contraventions 16
Emergency Regulation contraventions 9
Murder and attempted murder 130
a In many cases an individual will have been convicted of more than one offence.
b Includes 151 involved in the Bophuthatswana 'coup' attempt.
DETAILS OF SENTENCES
Death sentence 42
20 years and over 10
15-19 years 25
10-14 years 36
5-9 years 116
2-4 years 59
Suspended sentences of 2 to 8 years 30
Lesser sentences, fines, cuts etc. 125
It is interesting to compare the 1989 political trial figures with those of previous years
Trials of a political nature still continue in 1990 - 146 trials were completed between January 1990 and April 1990. There are also 184 ongoing political trials.
Clearly there has been a huge escalation in the use of the courts. In 1989, there were almost 3 times as many completed trials as there were in 1988, and the number of completed trials for the first 4 months of 1990 is already high. Although the number of accused increased by 5.5 times from 1988 to 1989, the number of convictions did not increase proportionately - in 1989 only 15.4% of the accused were convicted, compared with 44% in 1988.
At a time when the call on all sides is for a cessation of political trials and the release of political prisoners, the courts are working overtime to manufacture a stream of new political prisoners. Nor is there any end in sight - according to HRC records (which are certainly incomplete), at the end of December 1989 there were a further 255 political trials under way or set down for commencement added to which are the 184 ongoing trials as at the end of April 1990.
4. Political prisoners
An estimated 50 000 persons over the last 5 years have found themselves in court as a result of involvement in the violence arising from mass resistance to apartheid. The vast majority has been acquitted or had their charges dropped.
Statistics released in parliament revealed that as at 31 March 1989 there were 347 prisoners serving sentences for 'offences against the state'. Since that date, a number of prisoners were released on completion of their sentences, a handful of high-profile prisoners were released unconditionally before their term, and a number of newly sentenced prisoners were added to the political prisoner population. It is estimated that at the end of 1989 there were about 370 'security' prisoners. In addition, however, there are between 2500 and 3000 'unrest' prisoners - that is, those caught up in the political violence of the years 1984-1990. Their charges arose out of political protest against apartheid repression. This figure includes 73 on death row (as at the end of April 1990).
POLITICAL EXECUTIONS - The Death Penalty in South Africa HRC, October 1989
2. Statistics (for all hangings)
3. Political trials
4. Prisoner of war status
5. List of political executions
Officially boasting the second highest execution rate in the world, South Africa is one of 101 countries worldwide which have retained the death penalty on their statute books. In the period mid-1985 to mid-1988, Iran was the only country that executed more people than South Africa. Since 1958 the legislature in this country has added 8 crimes to the original list of 3 capital crimes. It is significant to note that whilst South Africa has been extending the number of capital crimes, the rest of the world has moved away from capital punishment. No less than 16 countries have abolished capital punishment during the past10 years.
2. Statistics (for all hangings)
From the creation of the Union of South Africa in 1910 until the end of 1988 over 420(5 persons have been hanged in South Africa. From 1978 until the end of 1988 a total of 1335 people were executed in South Africa (excluding the nominally independent-'homelands'), the number exceeding 100 each year except for 1981 and 1983. In 198^1 164 people were executed at Pretoria Central prison, the highest annual figure ever in South Africa's history. In one week in December 1987, 21 people were executed in groups of 7 on 3 different days. At the end of June 1989 there were 274 people on death row. In the 5 years between 1983 and 1987, 627 people were executed in South Africa. It took Britain half a century to hang about the same number of people. The 1987 figure of 164 executions was 4 more than Iran with a population of 47 million and 32 more than China with a population of 1 billion. (South Africa, excluding the TBVC states, had a population of just under 30 million at the end of June 1987.) In 1987 there were 25 executions in the whole of the United States, while Western Europe has had no executions since 1985. In the late 1960s Professor Barend van Niekerk of the University of Natal calculated that 47% of all executions in the world take place in South Africa.
3. Political trials
The nation-wide political protests which began in the townships in September 1984 have brought a new category of condemned prisoners to the death-row section of Pretoria Central prison: the political prisoner convicted of offences connected with political conflict. It is estimated that more than 80 people are currently on death row for politically related reasons. They have been convicted for unrest related murders of police officers, black township councillors, suspected police informers or other murders connected with political conflict.
The case that brought the death penalty under renewed public scrutiny was that of the 'Sharpeville Six', who were convicted of the killing in September 1984 of the deputy mayor of Sharpeville, Khuzwayo Dhlamini. The Appellate Division rejected their appeal against the death sentence in December 1987. The state president rejected a legal petition for their clemency but the minister of justice granted them an indefinite stay of execution on 14 July 1988 to give them the opportunity to pursue further legal remedies. As international pressure mounted against their sentences, the State President commuted their sentences to life imprisonment in November 1988. The reason for the local and international outcry against their conviction was the basis upon which the 'Six' were convicted, namely the doctrine of common purpose. According to this common law doctrine, an accused can be held liable for a crime (despite the absence of proof that he or she has contributed causally to the commission of the crime) if it can be proved that he or she has made common cause with those who were actually perpetrating the crime. The Appeal Court in the case of the Sharpeville Six acknowledged that it had not been proved that the conduct of the six accused had contributed causally to the death of the deceased, but said that each of the accused 'shared a common purpose to kill the deceased with the mob as a whole, the members of which were intent upon killing the deceased'. The main criticism against the Appeal Court's interpretation of the doctrine of common purpose is that it spreads the net of criminal liability very widely and raises the prospect of many death sentences being imposed in future trials arising out of political conflict. In May 1989,25 Upington residents were found guilty of murder on the basis of common purpose regarding the death in 1985 of a municipal policeman in Paballelo township. Of the 25,14 received the death sentence. In June 1989, 12 men were sentenced to death in the Bisho Supreme Court in Ciskei for the murder of 5 youths. In his judgement Mr. Justice Heath said that even though only a few of the convicted men had been found to be involved in the actual violence, there was enough evidence to convict them of murder using the common purpose principle. South African courts in 9 court cases concerning collective violence since 1985 have handed down a total of 43 death sentences.
4. Prisoner of war status
Captured guerrillas are increasingly claiming the status of soldiers entitled to prisoner of war status under the 1977 addenda to the Geneva Conventions. South Africa is not a signatory to the 1977 protocols (which extend the 1949 Conventions beyond declared wars to wars of 'national liberation') but the ANC made a declaration in 1980 to the effect that it would apply the Geneva Conventions and their protocols. This becomes important in cases where the death penalty is an appropriate sentence. According to the Convention on Prisoners of War of 1949, a prisoner of-war may not be executed by the detaining power for military activities prior to his or her arrest unless they amount to war crimes. South African courts, however, have not yet taken cognisance of the 1977 protocols. It has been argued that despite the attitude of the courts, the prisoner of war argument can be raised in mitigation of sentence. The fact that the ANC fighter saw himself or herself as being engaged in an international conflict and fighting for a just cause should operate as an extenuating circumstance, reducing the moral blameworthiness of the accused.
5. List of political executions
The following is a list of executions, which have taken place in South Africa as a result of offences having a political context. It can only be considered a partial list. We are indebted to the publication Waiting to Die in Pretoria by Phyllis Naidoo for much of the information.