Naught for your com­fort Gold stars

Judge Richard Gold­stone has a his­tory of up­set­ting au­thor­ity. In 1982 he up­ended the no­to­ri­ous Group Ar­eas Act with a sin­gle judg­ment that en­raged the apartheid gov­ern­ment. Then, in the build-up to the tran­si­tion in SA in 1994, he led an in­quiry that veri

Sunday Times - - News Tabletalk - By JONATHAN ANCER

● Judge Richard Gold­stone is among the world’s most widely ad­mired judges. At home, he served on the Supreme Court and in the Ap­pel­late Di­vi­sion, where he chis­elled away at apartheid laws, and was a mem­ber of our first Con­sti­tu­tional Court. He has led fact-find­ing com­mis­sions all over the world; was the for­mer chief war-crimes pros­e­cu­tor for the UN; and his Gold­stone com­mis­sion is the gold stan­dard of in­quiries. He has been on hit lists and a tar­get of smear cam­paigns; but the one thing I didn’t know about the 80-year-old judge is that he’s the spit­ting im­age of Kevin Spacey.

His Lord­ship Mr Jus­tice Gold­stone, re­garded as one of the most trusted peo­ple in SA, chuck­les softly.

“I don’t see it my­self, but peo­ple have said I re­sem­ble him,” he says. He used to like the com­par­i­son un­til the abuse al­le­ga­tions against Spacey broke and the dis­graced ac­tor’s house of cards came crash­ing down.

Gold­stone is closely fol­low­ing the Zondo com­mis­sion of in­quiry into state cap­ture, which has echoes of the wa­ter­shed in­quiry he led 27 years ago.

The early 1990s were po­lit­i­cally tense times. The coun­try teetered on the edge of a cliff. Ne­go­ti­a­tions kept stalling in the wake of vi­o­lence, as­sas­si­na­tions, in­tim­i­da­tion and “third force” hit squads. It was a time of ac­cu­sa­tions and counter-ac­cu­sa­tions. Gold­stone’s awk­wardly named fact-find­ing in­quiry — the Com­mis­sion of In­quiry Re­gard­ing the Pre­ven­tion of Pub­lic Vi­o­lence and In­tim­i­da­tion — was es­tab­lished as part of a peace ac­cord bro­kered in Septem­ber 1991. It needed some­one to head it. The par­ties in­volved in the fraught talks couldn’t agree on any­thing so it says a lot about Gold­stone’s in­tegrity and in­de­pen­dence that they unan­i­mously ap­proved of him.

There was a lot at stake and the com­mis­sion en­abled ne­go­ti­a­tions to re­main on course. There’s a lot at stake now and Gold­stone says deputy chief jus­tice Ray­mond Zondo is do­ing an ex­cel­lent job en­cour­ag­ing ev­i­dence to come out and bring­ing facts to light, im­pli­cat­ing the usual sus­pects.

The Gold­stone com­mis­sion helped SA break from its apartheid shack­les; and he hopes the Zondo com­mis­sion will help the coun­try shake off the shack­les of cor­rup­tion.

“My sin­cere hope is the pros­e­cut­ing au­thor­ity will take it up and peo­ple who have com­mit­ted cor­rup­tion on this level end up be­hind bars,” he says.

Be­cause Grandad said so

Speak­ing of bars, Gold­stone joined the bar in 1962 af­ter grad­u­at­ing with an LLB from Wits Uni­ver­sity, where he had served as pres­i­dent of the stu­dent rep­re­sen­ta­tive coun­cil and was ac­tive in an­ti­a­partheid stu­dent pol­i­tics. When he was a child he had spent a lot of time with his ma­ter­nal grand­fa­ther, who de­cided his grand­son was cut out to be a lawyer — and that sealed Gold­stone’s fate.

He built a thriv­ing prac­tice as a com­mer­cial lawyer, be­com­ing a se­nior coun­sel. He was asked to sit on the bench as an act­ing judge for six weeks. Then he was ap­proached to do a six-month stint. The dif­fi­cult de­ci­sion came when he was of­fered a per­ma­nent po­si­tion and had to face a chal­lenge of con­science: would he join the apartheid ju­di­ciary?

The Le­gal Re­sources Cen­tre wanted sym­pa­thetic judges and en­cour­aged him to ac­cept. They reck­oned that if he didn’t, a less sym­pa­thetic judge would.

“My role model was John Did­cott, who was on the bench. He had pro­duced some won­der­ful judg­ments that crit­i­cised racial dis­crim­i­na­tion and var­i­ous other apartheid laws, and it seemed to me that was a sen­si­ble way to go,” Gold­stone says.

In 1980 he be­came the youngest Supreme Court judge in SA at the time. The job came with a heavy price, though: he would have to en­force laws and im­pose sen­tences he didn’t like — such as the death penalty, which he did twice.

He was al­ready on the bench when a fa­mous de­bate raged about whether lib­er­als should ac­cept judge­ships. Law pro­fes­sor Ray­mond Wacks ar­gued they shouldn’t be­cause the laws they were re­quired to en­force were morally in­de­fen­si­ble. Law pro­fes­sor John Du­gard be­lieved it was bet­ter to have a mo­ral judge find­ing a way through the un­just laws.

This is what Gold­stone did. One par­tic­u­lar case in 1981, State v Goven­der, which he heard on ap­peal, had sig­nif­i­cant con­se­quences. Goven­der, an In­dian woman, ap­peared be­fore him. Her “crime” was that she was liv­ing in a white sub­urb in Jo­han­nes­burg. The Group Ar­eas Act of that era said any­one found guilty of con­tra­ven­ing it “may be evicted”, and ejec­tion or­ders fol­lowed au­to­mat­i­cally. When the case came be­fore Gold­stone, his eye fell on the word “may”.

“The act said ‘may’ be evicted, not ‘shall’ be evicted. It seemed to me that mag­is­trates had a ju­di­cial dis­cre­tion to ex­er­cise and for 31 years — from 1950 to 1981 — they had been act­ing in­cor­rectly.”

Gold­stone ruled that af­ter a guilty find­ing there should be a sep­a­rate hear­ing at which all rel­e­vant cir­cum­stances, in­clud­ing al­ter­na­tive ac­com­mo­da­tion, should be con­sid­ered. He set aside Goven­der’s evic­tion or­der. It was a sig­nif­i­cant blow to the gov­ern­ment be­cause it con­trib­uted sub­stan­tially to the Group Ar­eas Act be­com­ing un­en­force­able.

There were other con­se­quences of that rul­ing. “Gaye Derby-Lewis, a mem­ber of par­lia­ment for the Con­ser­va­tive Party, asked [then prime min­is­ter] PW Botha why the gov­ern­ment was al­low­ing thou­sands of black peo­ple to come into white ar­eas,” Gold­stone says.

“Botha’s disin­gen­u­ous re­sponse was: ‘Ask judge Gold­stone.’”

A decade later Derby-Lewis’s hus­band Clive was found guilty, along with Janusz Walus, of the ● In a poll in 1992, Gold­stone was voted SA’s news­maker of the year, ahead of Nel­son Man­dela and the then pres­i­dent FW de Klerk.

● As chief pros­e­cu­tor for the UN, he se­cured the recog­ni­tion of rape as a war crime.

● In 2004, the then UN sec­re­tary­gen­eral Kofi An­nan ap­pointed him to the in­de­pen­dent com­mit­tee to in­ves­ti­gate the Iraqi oil-for-food pro­gramme.

● He has re­ceived the In­ter­na­tional Hu­man Rights Award of the Amer­i­can Bar As­so­ci­a­tion, the Richard E Neustadt Award from the Kennedy School of Gov­ern­ment at Har­vard Uni­ver­sity, the World Peace Through Law Award from Wash­ing­ton Uni­ver­sity, and has 20 hon­orary doc­tor­ates. as­sas­si­na­tion of SACP leader Chris Hani. Dur­ing the in­ves­ti­ga­tion po­lice un­cov­ered a hit list of po­ten­tial tar­gets, with Nel­son Man­dela at the top, Hani at no 3, and, at no 5, Gold­stone.

Gaye Derby-Lewis told the Truth and Rec­on­cil­i­a­tion Com­mis­sion (TRC) that Gold­stone’s name ap­peared on the list be­cause he had al­lowed “blacks to come into Hill­brow”.

Gold­stone had also re­ceived death threats from rightwingers for crit­i­cis­ing the ac­tions of the po­lice in the 1990 Se­bo­keng mas­sacre. Po­lice had opened fire on a crowd of 50,000 pro­test­ers march­ing from Se­bo­keng to Vereenig­ing to present griev­ances. When the shoot­ing stopped, 14 peo­ple were dead and hun­dreds more wounded. Gold­stone headed an in­quiry into the mas­sacre and rec­om­mended the po­lice be pros­e­cuted for mur­der and cul­pa­ble homi­cide.

The Se­bo­keng in­quiry set the stage for the Gold­stone com­mis­sion. Gold­stone knew this com­mis­sion wouldn’t suc­ceed if he didn’t keep ev­ery­one on board and have the full sup­port of all the par­ties.

Ac­cord­ing to the law, he had to give re­ports to the then pres­i­dent, FW de Klerk.

“The first ma­jor re­port was is­sued with a gov­ern­ment spin al­leg­ing that we had found that the vi­o­lence was caused by the ANC and Inkatha ri­valry, which was a mis­rep­re­sen­ta­tion of the re­port,” says Gold­stone.

Man­dela picked this up and cas­ti­gated the re­port and Gold­stone.

As far as Gold­stone was con­cerned this sig­nalled the end of the com­mis­sion. He changed his mind a few hours later when his phone rang. It was Man­dela.

“Man­dela said he was phon­ing for two rea­sons: the first is to apol­o­gise. He said that af­ter read­ing the re­port he agreed with it. The sec­ond rea­son was to say he had called a press con­fer­ence and in­tended to apol­o­gise to me.

“He said, ‘May I say you have ac­cepted my apol­ogy?’ He knew that with­out the pub­lic apol­ogy the com­mis­sion would be harmed — and he didn’t want that.”

Af­ter that Gold­stone in­sisted the re­ports go out within 24 hours and with­out a gov­ern­ment state­ment.

One of the main ques­tions of the com­mis­sion was whether a third force ex­isted, which the Na­tional Party had al­ways de­nied. The com­mis­sion found it did and the lead-up to go­ing pub­lic with that in­for­ma­tion was a dan­ger­ous time for Gold­stone.

“The po­lice tried to find in­for­ma­tion to black­mail me,” he says. “They broke into my apart­ment and went through all my pa­pers and doc­u­ments, and my tax re­turns for the pre­vi­ous 20 years — but there was noth­ing they could find.”

In ad­di­tion to ex­pos­ing the third force, which pulled the rug from un­der the feet of the Nats, the com­mis­sion is­sued 47 re­ports, car­ried out hun­dreds of in­ves­ti­ga­tions and trig­gered the ini­ti­a­tion of 16 pros­e­cu­tions.

Gold­stone, re­marked Arch­bishop Emer­i­tus Des­mond Tutu, had made an in­dis­pens­able con­tri­bu­tion to the coun­try’s tran­si­tion to democ­racy. Just as the Se­bo­keng in­quiry pre­pared the ground for the Gold­stone com­mis­sion, the Gold­stone com­mis­sion set the stage for Tutu’s TRC.

Gold­stone’s work in in­ves­ti­gat­ing vi­o­lence led to him be­ing asked to serve as the first chief pros­e­cu­tor of the UN’s In­ter­na­tional Crim­i­nal Tri­bunal for the for­mer Yu­goslavia and for Rwanda. He signed the tri­bunal’s first in­dict­ments, in­clud­ing those against Radovan Karadzic and Ratko Mladic for the

Sre­brenica geno­cide and other hu­man rights vi­o­la­tions in Bos­nia and Herze­gov­ina.

He suf­fered the hor­rors sec­ond-hand and the real he­roes and hero­ines were the in­ves­ti­ga­tors, who met the vic­tims, some­times go­ing into war zones.

“It was har­row­ing enough to read what they had been col­lect­ing,” he says.

“It was dif­fi­cult to ac­cept that hu­man be­ings can treat other hu­man be­ings with such un­be­liev­able cru­elty. But this has hap­pened through­out his­tory — the Holo­caust, apartheid, and the death camps and ter­ri­ble use of mass rape as a form of war­fare in Bos­nia and Herze­gov­ina.”

He had sleep­less nights. The big num­bers shock but don’t numb; it was the per­sonal cases that got to him.

Gold­stone re­turned to SA and served as a jus­tice of the Con­sti­tu­tional Court from 1994 to 2003.

“My main achieve­ment and pride was be­ing a mem­ber of the first Con­sti­tu­tional Court — that was a high­light of my ca­reer. It was very ex­hil­a­rat­ing. It was a sym­bol of a new era.”

He has won­der­ful me­mories of his stint on the Con­sti­tu­tional Court, and painful me­mories of an­other ma­jor task — head­ing the Gaza com­mis­sion.

Alien­at­ing Is­raelis

In 2009, Gold­stone was asked to lead a fact-find­ing mis­sion cre­ated by the UN Hu­man Rights Coun­cil to in­ves­ti­gate vi­o­la­tions re­lated to the Gaza con­flict.

It was al­ways go­ing to be con­tentious. He ac­cepted be­cause he felt it would be hyp­o­crit­i­cal to have agreed to in­ves­ti­gate crimes in SA, the for­mer Yu­goslavia, and Rwanda, and to refuse to in­ves­ti­gate the Mid­dle East just be­cause he is Jewish.

The mis­sion con­cluded that Is­rael and Ha­mas had both com­mit­ted vi­o­la­tions of in­ter­na­tional hu­man rights law and in­ter­na­tional hu­man­i­tar­ian law, which sparked out­rage in Is­rael and the ini­ti­a­tion of a per­sonal cam­paign against Gold­stone, in­clud­ing a threat to pre­vent him from at­tend­ing his grand­son’s bar mitz­vah.

A smear cam­paign was launched, call­ing him a “Nat boetie” and ac­cus­ing him of hav­ing been an apartheid stooge who sen­tenced peo­ple to death.

He re­sponded that the two peo­ple whom he had con­demned to death in the 1980s had com­mit­ted mur­ders gra­tu­itously dur­ing armed rob­beries. “In the ab­sence of ex­ten­u­at­ing cir­cum­stances the im­po­si­tion of the death sen­tence was manda­tory. My two as­ses­sors and I could find no ex­ten­u­at­ing cir­cum­stances in those two cases.”

He had ex­pected crit­i­cism but not venomous per­sonal at­tacks. Two years later, he amended the re­port af­ter an in­ter­nal Is­raeli mil­i­tary in­ves­ti­ga­tion led him to ac­cept that it was not Is­rael’s pol­icy to in­ten­tion­ally tar­get civil­ians.

It was a painful episode and he doesn’t like talk­ing about it. “My main re­gret is that we didn’t get any co­op­er­a­tion from the Is­raeli gov­ern­ment. I think we might have had a dif­fer­ent out­come if we had.”

The con­tro­versy raged but his legacy — as some­one who has stood for jus­tice and sup­ported hu­man rights for all peo­ple — re­mains in­tact.

The wheels of jus­tice keep turn­ing and Gold­stone hasn’t slowed down. He’s on the board of Physi­cians for Hu­man Rights (among other boards); is a trustee of the South African Stu­dent Sol­i­dar­ity Foun­da­tion for Ed­u­ca­tion, a fundrais­ing ini­tia­tive by for­mer stu­dent lead­ers to help cur­rent stu­dents in need; and spends con­sid­er­able time work­ing with the Africa Group for Jus­tice and Ac­count­abil­ity.

He is also fight­ing grand cor­rup­tion with a US district judge in Bos­ton, Mark Wolf. They are work­ing on a project called Triple I, In­tegrity Ini­tia­tives In­ter­na­tional, which aims to pave the way for an in­ter­na­tional anti-cor­rup­tion court that func­tions like the In­ter­na­tional Crim­i­nal Court — coun­tries might fail to in­ves­ti­gate their own klep­to­crats but the in­ter­na­tional court has ju­ris­dic­tion.

The past 80 years have been busy and event­ful and he’s look­ing for­ward to read­ing The Tri­als of Richard Gold­stone, a bi­og­ra­phy by Daniel Ter­ris, to be pub­lished this month. “I’m sure I’ll learn things about my­self I had for­got­ten,” he says.

Pic­ture: Ru­van Boshoff

Judge Richard Gold­stone’s in­quiry into the po­lit­i­cal vi­o­lence of the 1990s set the stan­dard for such com­mis­sions.

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