When Mandela stood up for a ‘hanging judge’
Tony Leon, the former leader of the Democratic Alliance, tells how Nelson Mandela ordered the ANC to stop ‘unfair’ attacks on him and his brother as a result of their father’s record on the bench during the apartheid era
AMANZIMTOTI, meaning “sweet waters” in Zulu and so named, according to legend, by mighty King Shaka himself, is a rather ordinary coastal town some 30km outside my home city of Durban. Popular with some as a holiday destination, it did little to attract much outside interest, except as a sign on the N2 national highway.
All this changed two days before Christmas in 1985 when “Toti”, as locals called it, became an egregious synonym for the campaign of violence and terror the liberation movement brought into the heartland of white South Africa. Late on the afternoon of December 23, when last-minute gift buyers and others thronged the shops, a young ANC operative, Andrew Zondo, made his way to the town’s Sanlam shopping mall and placed a limpet mine in a bin. Shortly afterwards, using a remote device, he detonated it. The blast killed five — two women and three children — and injured 40 others.
There was, of course, a bloody context to those times of intense struggle: the mid-1980s was a period of extreme violence as the state tightened its control and ANC guerrilla operatives intensified their response.
The tit-for-tat violence reached its apogee months before the Toti blast when the South African Defence Force launched a cross-border raid into Gaborone in neighbouring Botswana, killing 12, including family members of ANC exiles based there.
A few months after Zondo was captured, he was charged with multiple counts of murder and appeared before a judge and two assessors in the Scottburgh Circuit Court. The judge in question was my father, Ray, then in his 19th year as a provincial supreme court judge. South African law then obliged courts to impose a mandatory death sentence on convicted murderers, unless extenuating circumstances were proved. In the absence of such a finding, my father sentenced Zondo to death on April 1 1986. On appeal, the conviction and death sentence were upheld by the appellate division, among whose number sat Justice Michael Corbett, who would preside as chief justice at the beginning of Nelson Mandela’s presidency. He was executed in September that year.
There were strands of irony here: my father regarded the death sentence with a visceral dislike; he used to tell us that it made him “physically ill” when he imposed it and, in more than two decades on the bench, he very rarely did so. After his retirement, he became a leading campaigner for its abolition.
However, while on the bench, he felt constrained to apply the law. But he also had established, through its creative use, a reputation as a determined liberal jurist. In a major case the year before the Zondo trial, for example, he delivered a landmark judgment, Hurley v Minister of Law and Order, which struck a decisive blow in favour of the liberty of detainees incarcerated by the security police. His decision to invalidate a detention order under the notorious section 29 of the Internal Security Act was hailed as a major breakthrough by rights activists and scholars.
Zondo became a cause célèbre not simply because the ANC saw him as a martyr, but also because his fate assisted its demonisation of me (as in the case of my compulsory military service) and his death sentence would be inserted into debate continually throughout my political career.
An obscure ANC backbencher, for example, broke with the tradition of uncontroversial maiden speeches to denounce me in 2006 as “the son of an apartheid operative who ordered the execution of Andrew Zondo”.
Shortly before the 1999 election campaign commenced, a more heavyweight member, Nkosazana Dlamini-Zuma, entered the lists on this issue in a parliamentary debate on the Truth Commission. “The depth of our humanity,” she intoned with some immodesty, “is illustrated by the fact that the judge who had the discretion to hang, or not to hang, a young revolutionary like Andrew Zondo is still a judge, and his progeny enjoys the direct fruit of the freedom that Andrew died for.”
Dlamini-Zuma was wrong on all counts: my father had long since retired; killing innocent shoppers in a suburban mall was questionable in terms of her own movement’s proclaimed policy of the time; and the sentence imposed was mandatory, not discretionary.
However, it was an earlier rendition of this mantra, or caricature, that led to my discussing directly with Mandela the use of my father and his conduct in judicial office as a means of attack on me. This early indicator of how the ANC conducted politics involved another member of my family, my elder brother, Peter.
Peter, who had established a flourishing legal practice in Johannesburg, had also been bitten by the political bug. His symptoms did not last as long as mine — he quit after 1999 — but in 1996 he was serving as party leader in the Gauteng provincial legislature. Given our small numbers at the time, he also doubled as spokesman on safety and security, which drew him into fierce political combat with the ANC provincial executive member for the portfolio, Jessie Duarte.
She at the time had emerged as an ethically hobbled serial bungler in office. Largely as a result of Peter’s probing, aided by leaks from disgruntled members of her own administration, it was revealed that she had allegedly fabricated details of an accident involving her official motor vehicle to cover up the fact that she was driving it at the time, and without a licence. Then came revelations that she had ordered the province to pay for the travelling expenses of a male friend on an official overseas visit, even though he held no official title.
After Peter met the provincial premier, Mathole Motshekga, he promptly appointed a commission of inquiry. It eventually reported that there were “strong suspicions that [Duarte] had covered up the accident” and made other adverse findings against her. She was removed from political office and was “rewarded” with a diplomatic posting. (Duarte returned to high-profile politics during the Zuma presidency and she
My father regarded the death sentence with a visceral dislike; it made him ‘physically ill’ when he imposed it
currently serves as party deputy secretary-general.)
It was early in Peter’s war of political attrition with Duarte in 1996 that, stumped for an appropriate response to one of his probes in the legislature, she denounced him as “the son of a hanging judge”. I saw this ploy as greatly problematic and felt that I should seek the president’s intervention.
I was mindful that, although I had indeed attacked his wife, Winnie, in a no-holds-barred fashion, she was a leading parliamentary and party politician in her own right. In any event, I had never sought to link Mandela to any of her controversies and could not see how, on any basis of fundamental decency, the ANC could seek such a linkage in respect of my now retired father and his two politically active sons. I also felt most strongly that my father, a decent and honourable man, was having his reputation traduced as a means of scoring points against his children.
I had not disclosed to Mandela’s office the reason for the requested appointment, which was set up for the early morning of a Sunday late in September 1996. I was due to leave later that day for a visit to Israel and my friend Cecil Bass, who was also active in the party, had volunteered to take me to the airport after my appointment with the president. He had offered to wait in the car outside Mandela’s Houghton home while I conferred inside, but — sensing that he might enjoy an “encounter with greatness” and being cognisant of the utility of having a witnessed conversation in such a matter — I invited him to come inside with me.
A security officer admitted us into the home, where we were greeted by a housekeeper who bustled upstairs to call Madiba. Shortly thereafter, he slowly made his way down the staircase and, after greetings and introductions, explained that he had undergone some medical procedure on his knee, which necessitated his being seated with his leg resting on an ottoman in the lounge. Bass and I seated ourselves close by. After a brief discussion on the recently handed-down certification judgment of the Constitutional Court, I turned the conversation to the matter at hand.
Politely, I advised the president that I was “dismayed” by the Duarte attack on my father.
I asked Mandela to study a transcript of the actual judg- ment that I handed over to him, having highlighted certain key paragraphs. These included the fact that Zondo had given evidence only on the question of extenuating circumstances. The evidence against him was given by his accomplice, whom the court found to be an “excellent witness”. He had testified that the murders had been carefully planned and that, after the blast, Zondo had complained bitterly that “only” five people had been killed.
Before this meeting, I had closely questioned my father on
There is no need to belabour the point. Once you start attacking the integrity of individuals, there is no end of the matter
whether Zondo’s youth — he was just 19 years old at the time — should not have mitigated the sentence. My father offered little comment, as was his wont in such matters, and asked me to read the judgment. The section on extenuating circumstances was also heavily marked in the president’s copy.
It read: “We live in a divided and troubled society, a society divided by differences and troubled by its failure to resolve them. The monopoly of power and its fruits rest in the hands of the white minority while the black majority are less affluent, voteless, and many live in conditions of squalor and degradation. It is against this background that this case must be judged . . . [The] youth of the accused must be a factor operating in his favour. Moreover, the accused did not commit his offence from base motives such as greed, or lust, or envy, but because he wished to help his people. That must also count in his favour.
“On the other hand . . . there has been unchallenged evidence that he acted against the clear policy of the ANC not to attack innocent civilians . . .
“What makes this crime so appalling is that it was committed against the civilian population as a whole. Young and old, black and white, innocent and guilty. Anyone shopping at the centre on Xmas eve was at risk of being killed.”
Mandela read the judgment very carefully and in silence. After he had finished reading, I suggested that, although I hardly expected him to agree with it, the judgment and my father’s entire judicial record hardly portrayed him as “an apartheid hanging judge”. I added that if attacks on individual politicians were to be conducted through their familial links, there would be no end to the matter.
I pointed out that his own father-in-law, (Winnie’s parent) Columbus Madikizela, had served in the early homeland government of his cousin, Kaiser Matanzima, in Transkei, an early prop in the grand apartheid design. Mandela was somewhat bemused by this particular reference.
“There is no need to belabour the point,” he said. “Once you start attacking the integrity of individuals, there is indeed no end of the matter.”
Anyway, he continued, “the government’s view on Judge Leon is quite different from that of one or two individuals”. He reminded me that, only a year or so before, the government had chosen my father to chair a high-level commission of inquiry into the Vaal Reefs mining disaster and that its wide-ranging report was a “model” on which the state intended to base legislation for an overhaul of mining health and safety.
Calling for his housekeeper to bring the telephone, he rang a no doubt surprised Cheryl Carolus, then deputy secretarygeneral of the ANC, and summarised for her the purport of my visit. As Bass recalled: “He instructed her pretty firmly that this behaviour and these attacks had to stop as they were ‘wrong’ and ‘unfair’.”
I was amazed at Mandela’s approach, never having expected him to respond so affirmingly to a matter to which I simply wanted to draw his attention. In fact, as the following years would reveal, in this small matter at least, Mandela’s writ carried little weight, or the message was never delivered down the line.
Less than three months later, at my 40th birthday celebrations, Mandela was seated next to my father. They had a warm discussion — but, to my knowledge, neither of them raised the question of the Zondo judgment.
Leon is a business consultant, writer and speaker and the former South African ambassador to Argentina. This is an edited extract from his book ‘ Opposite Mandela — Encounters with South Africa’s Icon’ (Jonathan Ball Publishers)