Former Chief Justice Arthur Chaskalson writes on Justice Richard Goldstone’s role in South Africa
The Jerusalem Post asked former Chief Justice of South Africa, Arthur Chaskalson for a comment about recent allegations against Richard Goldstone. This is an edited and somewhat longer version of his (unpublished) email, to which he attached a statement made previously by him and Advocate George Bizos SC, one of the foremost human rights lawyers in South Africa with a world wide reputation. The statement was made in response to unfounded attacks on Justice Goldstone’s character following the publication of the report on Gaza.
First published on this website on 13th May 2010
[see also The “Get Goldstone” Campaign]
It is absolute nonsense to say that Justice Goldstone took the side of the racist policies of the apartheid regime, and you can quote me on that if you want to. He was one of a small group of judges who did their best to mitigate the harshness of apartheid and when we went to court to defend victims of apartheid in criminal cases or to make claims on their behalf in the civil courts (and that was a large part of the practice of George Bizos and myself) he was one of the judges that we hoped would hear our case. I was not a judge under apartheid. I was appointed by President Mandela to be the first President of our new Constitutional Court. I retired in 2005 as Chief Justice of South Africa. Justice Goldstone was also appointed to the Constitutional Court by President Mandela, and was a member of the court from its inception in 1994 until he retired in October 2003. When heretired there was a ceremony in the Constitutional Court to mark his service to the law. I have found notes from which I spoke and attach them. At the time I said the following to a large gathering assembled in the Court to pay tribute to Justice Goldstone:
“Judges with an understanding of and a willingness to acknowledge the suffering and frustrations caused by apartheid, had an important role to play in those dreadful days. In its report, the Truth and Reconciliation Commission was highly critical of the role of the judiciary under apartheid, but it acknowledged the few who “exercised their judicial discretion in favour of justice and liberty wherever possible”. Justice Goldstone was one of those referred to. I will mention but one decision which had a profound effect at the time it was given. It concerned the Group Areas Act and was given at a time when the state was attempting to enforce that Act in circumstances in which its provisions were being ignored by large numbers of people in Johannesburg. The process used was to charge the people concerned with criminal offences, to secure convictions and an order evicting the persons concerned from the premises that they were occupying. Mr Govender was dealt with in this way and as all the targeted persons did in resistance to the state’s campaign, he appealed, in order to buy time. He did far better than ever he had thought. Justice Goldstone was one of the two judges who heard the appeal. He gave the judgment and dealt with the matter as follows:
It appears to have been accepted by all the participants in the trial in the court below that, the appellant having been found guilty of contravening … the Act, an ejectment order… would follow automatically as part of the sentence. This appears also to have been accepted by the magistrate. We were informed from the bar that the expectation followed from the practice which has grown up in these cases. If indeed such a practice does exist, in my opinion, the sooner it ceases the better.
Thus said, he then went on to explain why, holding that the exercise of the power [to evict] was not obligatory, but discretionary, which, as he said, if exercised
“may, and in most case will, seriously affect the lives of the person or persons concerned…”
There was no evidence directed to this issue because all had assumed that if the occupation was illegal an eviction order would follow. That, however, proved not to be an obstacle to Mr Govender’s appeal. An order as drastic as that said Justice Goldstone, should not,
“be made without the fullest enquiry. . .. A court should not make such an order unless requested to do so and there appears to me to be no onus upon the convicted person to dissuade the court from granting the order.”
A prosecutor seeking such an order was obliged to place material before the court justifying the exercise of the court’s discretion and said Justice Goldstone,
“I cannot imagine any circumstances which would justify the court making such an order mero motu.”
There were he said many considerations that may be relevant to the exercise of the court’s discretion. He mentioned some including the personal hardship which such an order may cause and the availability of alternative accommodation. The fact that the occupation was illegal, prohibited by statute, and a criminal offence was not one of the relevant factors mentioned by him.
In the result Mr Govender’ appeal was upheld, but more significantly, the state’s campaign to enforce the Group Areas Act in Johannesburg ground to a halt. Many of those of the “wrong colour” remained in the premises they were occupying. This was in November 1986 during the state of emergency. In February 1990 a little more than three years later the process of dismantling apartheid began. Today, our Constitution, in language resonant of the judgment in Govender provides that
“ no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances”.
The Jerusalem Post published a report saying that Chaskalson said that the attack on Goldstone was nonsense, but did not give the detail he had included.
On the issue of capital punishment, Justice Chaskalson’s comments as follows:
Richard Goldstone was never thought of as a hanging judge. The mandatory death sentence was the law until 1990 when the relevant provisions of the Criminal Procedure Act were amended. Until then capital offences were tried by a judge and two assessors, and the death sentence was mandatory unless extenuating circumstances were found to be present. Goldstone was appointed to the Appellate Division in 1989 and so any death sentence he may have imposed would have been under the old law which made it mandatory unless extenuating circumstances were present. To the best of my knowledge he imposed only two death sentences as a judge of first instance. From 1989 until 1994 he was a member of the Appellate Division where he would have heard appeals against death sentences in terms of an amendment to the Criminal Procedure Act. According to the amendment a death sentence could only be imposed on a person over 18 years old. The court had to be composed of a judge and two assessors. They were required decide whether there were any mitigating or aggravating factors. A death sentence would be imposed in the light of that finding “if it is the proper sentence” (these are the words of the statute). The onus was on the State to prove beyond reasonable doubt the existence of aggravating factors, and to negative beyond reasonable doubt the presence of any mitigating factors relied on by the accused. If there was doubt as to the age of the accused, the state had to prove beyond reasonable doubt that he or she was over 18. The Criminal Procedure Act allowed a full right of appeal to persons sentenced to death, including a right to dispute the sentence without having to establish an irregularity or misdirection on the part of the trial judge. If there were no appeal, the Appellate Division had to review the sentence and set it aside if it was of the opinion that it was not a “proper sentence”. The Appellate Division laid down that the death sentence should only be imposed in the most exceptional cases, where there was no reasonable prospect of reformation, and the objects of the punishment could not be properly achieved by any other sentence. Judgments on appeal, in which Goldstone may have participated, had to address this test and also the statute which required that the death sentence had to be the only proper sentence. During this period the death sentence was confirmed only in cases of the most brutal murders. I do not know in how many cases Justice Goldstone was a member of a panel that confirmed a death sentence imposed by a lower court.
From 1989 there was a de facto moratorium on the carrying out of death sentences. This became formal in 1992. From 1989 until 1995 when the Constitutional Court ruled that capital punishment was unconstitutional, death sentences were not carried out, though the law remained in force and cases had to be dealt with in terms of the provisions of the statute. When the Constitutional Court declared capital punishment to be unconstitutional, the death sentences were commuted and sentences of imprisonment were imposed.
Below are some extracts from a submission made at the time of Justice Goldstones’s condemnation in South Africa for having chaired the Goldstone Report:
IN DEFENCE OF JUDGE RICHARD GOLDSTONE BY FORMER CHIEF JUSTICE ARTHUR CHASKALSON AND GEORGE BIZOS COUNSEL IN THE CONSTITUTIONAL LITIGATION UNIT OF THE LEGAL RESOURCES CENTRE
It is not our intention to express a view on whether the findings of the commission were correct or not. Views differ on this. Our concern is that Judge Goldstone, an eminent South African judge, has been accused of bias, dishonesty and improper motives in being party to the report of the mission.
For instance, Jack Shapiro in the SA Jewish Report 30 October 2009 wrote:
“Goldstone became a Nationalist Party judge. In those days only “Nat Boeties” became judges. Did this start the ball rolling? Was this the start of a new career for him? A world personal ambition?”
This theme was also advanced in scurrilous emails which were widely circulated attacking his integrity.
We have known Richard Goldstone as a friend for more than fifty years, and have followed his career as a colleague at the Bar, as a Judge of the Transvaal Provincial Division, as a Judge of the Appellate Division, and as a Justice of the Constitutional Court Our answer to the rhetorical question is an emphatic “No”.
Not every judge appointed during the apartheid era was a supporter of apartheid. There were a number among, them including Richard Goldstone, who accepted appointment to the bench in the belief that they could keep principles of the law alive. They included Michael Corbett, Simon Kuper, Gerald Friedman, HC Nicholas, George Coleman, Solly Miller, John Milne, Andrew Wilson, John Didcott, Laurie Ackermann, Johan Kriegler and others. There is a considerable body of evidence that they discharged their functions with courage and integrity. This is recognised in the report of the Truth and Reconciliation Commission which observed that “there were always a few lawyers (including judges, teachers and students) who were prepared to break with the norm.” Commenting on such judges, it says “they exercised their discretion in favour of justice and liberty wherever proper and possible. . . . and (the judges, lawyers, teachers and students referred to) were influential enough to be part of the reason why the ideal of a constitutional democracy as the favoured form of government for a future South Africa continued to burn brightly throughout the darkness of he apartheid era.”
Richard Goldstone was one of those judges. For instance, his decision in the case of S v Govender that no ejectment order should be made against persons disqualified by the Group Areas Act from occupying premises reserved for the white group, without enquiring into whether alternative accommodation for such persons was available, was a great blow to the apartheid regime, and contributed substantially to that legislation becoming unenforceable in certain parts of the country. As a judge of the Constitutional Court he concurred in the finding that the first draft of the Constitution of the Republic of South Africa passed by the newly elected Constituent Assembly did not comply in certain respects with the 34 constitutional principles agreed to by the negotiating parties at Codesa.
He was the founding chairperson of Nicro an organisation to look after prisoners that have been released; he exercised his power as a judge (not often used by other judges) to visit prisoners in jail; he insisted on seeing political prisoners indefinitely detained to hear their complaints; to intervene for a doctor to be allowed to see them and where possible to make representations that their release be considered. After the release of Nelson Mandela he played an important role in persuading his colleagues on the bench to accept the inevitable changes that were likely to take place in the political and judicial structures.
President De Klerk with the concurrence of the President of the African National Congress, Nelson Mandela appointed Judge Goldstone as the chairperson of the commission to investigate what became known as hit-squads or third force organisations within the army and the police force. His reports exposed high ranking officers who were obliged by President De Klerk to resign, and other members of the security forces, and he made findings that police officers had unlawfully shot at unarmed protestors, and recommended that they should be charged with murder. Threats to his life were made, and his name was on the hit list produced in court as part of the state case against the killers of Chris Hani.
Some who have criticised him say that as a Jew he ought not to have accepted a mandate to enquire into the events in Gaza. We do not agree. Religion and ethnicity are irrelevant to the capacity to judging with integrity. Others, ask why he has shown no concern about human rights violations that have been and are being committed elsewhere in the world. This was not part of his mandate as head of the fact finding mission. But his career, from the time he was chairman of the Wits SRC campaigning against the exclusion of black students, to the present time, shows a long commitment to the protection of human rights and a concern for their protection in all parts of the world. He is a member of the boards of Physicians for Human Rights, the International Center for Transitional Justice, the Salzburg Global Seminar, and the Center for Economic and Social Rights. He is a Director of the American Arbitration Association. He chairs the advisory boards of the Institute for Historical Justice and Reconciliation and the Brandeis University Center for Ethics, Justice and Public Life. In April 2004, he was appointed by the Secretary-General of the United Nations to the Independent International Committee, chaired by Paul Volcker, to investigate the Iraq Oil for Food program. He is co-chair of the Human Rights Institute of the International Bar Association. He chaired a UN Committee to advise the United Nations on appropriate steps to preserve of the archives and legacy of the International Criminal Tribunals for the former Yugoslavia and Rwanda. From 15 August 1994 to September 1996 he served as the Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, a post he accepted at the request of President Nelson Mandela, who considered it an important affirmation of the post apartheid South African judiciary.