LA WYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW

OBSERVATION OF THE TRIAL OF

THE STATE V. RAMALIGELA AND MANGAGA

In,the Supreme Court of Venda,

South Africa, February 1983

by Ralston H. Deffenbaugh, Jr. Assistant for Legal & International Affairs

Lutheran World Federation Geneva, Switzerland

733 Fifteenth Street, N.W., Washington, D.C. 20005

LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW

SUITE 520 • 733 FIFTEENTH STREET. NOATHWEST • WASHINGTON, D.C. 20005 • PHONE (202) _..,..

CA8I.E ADDRESS: LAWCIY, WASHINGTON. D.C.

OBSERVATION OF THR TRIAL OF

THE STATE V. RAMALIGELA AND MANGAGA

In the Supreme Court of Venda,

South Africa, February 1983

by Ralston H. Deffenbaugh, Jr. Assistant for Legal & International Affairs

Lutheran World Federation Geneva, Switzerland

1 • 0 INTRODUCTIOlf • • • • • • • • • • • • • • • • • • • • 2 2.0 ORDER OP MISSION • • • • • • • .. • • • ~ .. ~ • • • • 3 3. 0 BACKGROTJliiD TO THE CASX • • .. •. • ._ . • • • • • • • • 3 3'. 1 Venda. • • • • .. • •. .. .. • • • ·- • • • • • • • ... .. • ,. l· 2 Ineiden~a- Leading to the· Trial • • • • • • • • • • 5 3'. 7 The Inquest into ltuoi'he' s Dea.th • • • • •. • • • .. 5 4;:, .. 0 !rB]f !'RIA.t. .. .. • • ·• • .. .. • • • • • • • • • • • " • 6 4 ... t Char-gea .. • .. • .. • .. • •. .. .. • • • • .. .. • • • • 6 ¢.2' Cast of Charactera • .. • • • • .. . • • • . .• '. • . · ·7 4.3' Geography o-r the- Courtroom • • • • • • • • • • 8· 4 .. 4 !he- Tr~al Begins - The Tria.l Within a Trial • • • 8 4;.; !he frt&te-'s: Case ....................... 9 4. 6 The- Defense Case: .. .. .. • .. • • • • • .. .. • • • • 1 3 4. 7 Pinal. Arguments • .. .. • .. • • • • • • • • • .. • 15 5 .. 0 J'UDG~ ·.. .. .. •. • ·... .. .. ... • • • • • • • • • • • • 1 6 5. 1 . . Evidentiary- Ruling • • • • • • •. • .. • • • • • • 1 6 5. 2 . Judgment: on the Meri ta .. • • • .. • • • • .. • • • 17 6.0 AFTERMATH • .. • • • • • .. • .. • .. • . • • • • • • 18 7.0 EVALUATION OP PROCEEDINGS • • • • • • .. • • • • • 19 8 .. 0 COlfCLUSIOlf • • • ... • .. • • .. • • • • • • • • • • .. 21 g. .. o LIST: OP EmiBI!S .. • • .. .. .. • .. • .. • • • • • • • 22

R :g· P 0 R T

LEGAL. OBSERVA!IOB' 0!' THE TRIAL OP

!B ~Aft VS".. RAMALIGELA AB'D lfJJfGAGA

In the SUpreme Court o~ Venda, South Africa, February 198'

bT Raiston li". Deffenbaugh,. Jr .. .

1.0 IB!RODUC~IOa

In the- paa't ZO 7eara 1n. South A:fricar a.t least. 50 persons have died while in d·etentiort linder the securi tT laws-. Of those 50 · deaths,. 'there have been only tvo prosecutions.. !he first vas the­case of Joseph lr4'Iu:If in l"a.tai. in 1976, in which :!our policemen were chargee!· w1 th culpable homietd:e .. At trial,. police- vi tnesses said Mr. Mdluii etrugg1e~ ~th policemen as he attempted to escape. He staggered and fell,. hitting his- chest or neck on a ehair. Doctora 1:elrtt~ie4 tha.t- the injuries were too di:!!use to have beett causect bT 81" single :!ali over a chair .. The judge acquitted: the :!o~ pollceDleJt but satct Jlledical. evidence- cast grave cloubts ~the evicfe!!Ce o~ the- pol.icemen vha tertif'tect :!or the S.ta.te. (!ha. St~,.. J.ohazmeaburg,.. ll lrarch 1982 • )

!he secon4 prosecution :!oilovfng a death in deten~on took place in the Venda "holleland"' in northern Sauth Africa. in Pebruary 198'. I vas comaiaaioned to observe that trial on behal~ of' the United States LalfJ'era•· Co11111i.ttee- for- C"ivi~ Rtshta- Under Law: .. What :!ollo•s 1& 1117 report om t1ta.t. case-,. at. the- end of' which the police- were al­so acquit:ted ..

2

2:0 ORDER OF MISSION

The trial o-r The State on Febru~ -ary 2, 1983. rece1ve my ora 1ns rue ons o observe the trial on February 14. The director o~ the Southern Africa Project of the Lawyers' Committe•, GaT J. McDougall~ had originally intended to · observe the trial but was unable to do so because her South A!~i­can visa application. vas· denied.. At th• time I was requested to observe the trial~ it was expected that it would last. into the lliddle o-r the- f"olioving week and. that: I vou1d be able to observe the: l&llt. :tive- or Bill cfa7s. As 1 t turned out,. . the- trial. ended more ·quicklr than e-xpeeted. lfevertheiesa,. I vas. a.ble to attend the last two dqa.. of'-the trial., Februa%7 16 and. 17, 1983'.

I received no special instructions other than to observe· the end of' the trial. (MT orde~ o:t mission is attached as Exhibit A.) In perfo~ing the mission, I vas informed bT mT past trial observa-

.tion experience and by the comprehensive article prepared by Pro­fessor David Weissbrodt: International Trial Observers! 18 S!AJlPORD J .. Ift'L L. 2.1 (1982). (An account of mT metho ology- is attached as Exhibit B.)

MT c:redentialS' ~or obaerving thia trial. were u followa. I am a me•ber o~ the Bar o-r the Supreae- c-ourt of" Colorado, o-t the United

· States District crourt !'or. the District o-r Colorado,. and o:t the U.S. Court ~Appeals. -ror- the fOth Cireui.t .. I lived. in Namibia :tor seven months in the aid-t970•, during which tiae- I observed a l.engthr poli tieal. trial.,. !h• Stat a vs. Mushimba. and Pi ve Othe-rs, on beh~ o~ the Lu.thft'alt Vorid Pedera'tion.. During that 't!ie,. I developed a tamil.iarity with the South African legal STstea and learned Afrikaans. I. have partieipated in vol.unteer human rights legal 110rlr on beh~ ~ Amnea~ International,. the Lutheran churchea in the lin!tec! ata:t'eS'. anct the Lavyers CoiiDilittee f'or C!ivil Right• Wider. Law-.. r ut presently emploTed as the Assistant -ror Le­gal. and Ilrternationai ~airs f'or the Lutheran World Pederation, Geneva~ S.it~erl.an~- ~.late f98~~ I visited South A:tr~ea as a lllember o~ a ·delegation. o-r the Ameri.ean Bar Association ..

. ~ .' .. ·.

• 3.1 Venda. · ...

!he- popttlation o~ V'encfa. fa not" known exactlY' bu't iS' estimated to. be abou-t h~ a mll1.oJt. file fallowing background to this nolllinal.l:r-tnctepencfent- "home-land" ia taken :!roar South Urican Institute td Race- RelatioDSt Survey o-r Race Relationtr in South Uriea t979 '28 (lfarah t980J.

...

On 1~ September (1979), Venda became the third African. "homeland" to be granted independence by the S.A. Government. . -Venda is the sm~llest of the territories to be granted inde­pendence to date. Its total land area, comprising one block· of land, is 639 000 hectares. It is situated in the Northern· Transvaal near the Zimbabwe-Rhodesian border. The territO\Y vas granted in4ependence after seventeen years of constitu­tional development in terma of apartheid policy. Two elec­tions have been. held in the. terri:tory.. In the first the pres­en-t:- Chi~ Kirrister,. Chie~ Patt"ick Mphephu,. won onlT five o:f the- eighteen elected: sea.tEr.. Jrovever,. he won power vi th the support of' thea 4-t nolltinated tr.aditional leaders who formed part: o:f th• legislative assembly- of ~Sixty.

The second election was held last y-ear (1978) while Proclamation R275 of' 1971,. which allows for preventive detention, was still in force. The opposition Venda Indepen­dence Party won 31 of the ~2 elected seats. Chief Mphephu, however,. vo~ the election~-ror chief minister again,. having ctetained twelve- oppos.iti·on members and nominated a sufficient number o-r his supportera to sea.ts in the assembly to obtain a majority,.. provided the traditional. chiefs supported' him.

Tenda.~s 'regal: syate~ is· such tha-t;. ~outlt Mrican Iaw as of' the date o-r fncfependence- remains in force unlesa speci:fically repealed by­the- Veneta Legislative AasemlriT .. The Judiciary,. established in terms o~ the Const~tutio~,. comprise~ a Chief Justie~ an4 ~ indeterminate- JlUJil.ber of· other judgea of the Supreme Court~· who are appointed or th~ President,. aud: various lower courts. The Supreme Court has responS'ibiii tT :f'or the administration of' justice in the territor,r. APRe&la arising out o~ decisionS' of the Supreme Court are made to the· Appella:te- Dtvieton o:f. "the South' African Supreme Court. OniT pers:onS" who have acted as advocates in the- Supreme C:ourt or a.. superior court of the Republic- of" S'outh Afriea. 11&7 be appointed judge• and the Chief. Justice must already bell judge of the Sou.th ~eaJt. SUpremer C'ourt' or a superior court.. ( Id. at '~2. ) SJ.nae before independence,. the Chief Justice- a:f Venda has been .Tuc!p G.P. vair BlrFl•· ll'p 'tc preaen-1:,. he baa heen the onlT !ul.l.-time Justice- o-r ther SDprae- Court ~ ·v:end&. Actin~ Juatiees- are brought itr ~roar 'tfae.1:o-~ :for. special. caaea or as "the court's case load' requireg. ·

Among ther S'outlr African laws stili. apt!lic&ble in Venda is the !rerrorism Ae:t. S'olJth Africa retains a strong official. presence in Vencf&,. providing poi.ice anct mii.itary advisors ana a large mmber o-r seconcle~ C:ivU.. servants.. Geographieall;r underlining the ctepenclence of Venda upcm South: Mrica. is the :fact that, since ... f4cfep.,iuf•nce-,.. S'outt. Mrtaa retainecf a narrow strip o:f. land separating ~enda f'roDl neighborin~ Zimbabwe-. Venda. is thus an enela.ve within the Republic of' S'outh Africa. ~o date, no nation other than S'outh At'riea haEr recognized the independence of Venda •

....

' ,.2 Incidents Leading to the Trial

On October 26, 1981, the Police Station in Sibasa, the main population center in Venda, was blown up and two policemen were killed. Venda authorities attributed the explosion to members of the military ving of the African National Congress. To date, nq one has been tried or convicted of responsibility for this bomb at:tack.

In the wake o~ the explosion~ at least 20 person~ are known to hav• been detaine4 by the Tend& ~ecurity police. One o~ them was Mr. Isaac !'shithiva. Muofhe, a salesman. and lay preacher of the Evangelical Lutheran. Church in 8outhern Africa. Politically, Mr~ Xuofhe had been a supporter of the South African Black Conscious­ness movement and a peaceful opponent of apartheid and the homeland policy.. He was- married and had one young child. He was detained on November 10, t981 and held without charge. He died in police custody early in the morning of November 12, 1981. Others detained during the same period~ including four Lutheran pastors, reported having been tortured in detention~ Their accounts of their treatment include- beatings,. enforced exercises, the mainte­nance- o~ wmatural- phJ'8iCa! post:tfons for ertencled periods,. and the use o~ eleetrie shock. PortunatelT,. Mr. llfuofhe vas the only person to have c!fecf durmg- this- ~ave of detentions.

3-3 The Inquest into MUothe's Death

Izr JuiT 1' 982', an ~:!ictal. tllques"t W&B be let into the cause of Mr. Muofhe"s death. Presi.clfna vas the Chief Magistrate of Venda, c.J.S.B. g"tafner,. a ~oraer Rhodesian nov serving as a seconded 8outh Atr.fc~ cfvi~ servant in Venda. At the inquest, three sets o~ la1f7&re- were present: the- Attorney General's Office representing-. the S'ta:t:e,. the. Stat& A:ttorney representing the

. pollee,. and lalf7era representing the- t'uri!7 of Mr.. Muothe.

lredic:ai: eYic!ence ·walt tn"troduced :!roa three doc"tors,. D1:s·trict Sur­geon Jf.J'. !etchler (who haci examinett ~ .. Muo:the'"s body the morning o~ his- ~e&th),. ancf two pathologists, Prof. J.D. Loubser and Prof. I.V. gtmson. fhe doctor~ agreed that fh& deceased had died of mu1-t1ple injuries vi~h internal hemorrhage,. occasioned by'extensive use- o~ blun"t force .. . !he- two ee.curtt,o pal icemen_ who had had custody of" !fr. Muofhe on ll'ovember i i ~ i9at,. Captain 1tc1thuphe-i Ludwig Ramal.igela. and gergeant Phmlula Jost&8' lfangaga,. were called to 'testify. !hey al­leged that. lfr'., Jfu.othe had confessed: to them under interrogation

·and ha4 agreed to take the. to a.poin:t where be had allegedly giv­e~ transport to those who had bombed the police station. During this driver-,. theT saict, !fl-. Ma.ofhe had attempted to escape by ....

5

jumping from the moving pick-up truck (in South Africa call~d ~ "bakkie") and his injuries must- have been inflicted during t.he struggle to prevent him from escaping. During the course of the • Inquest, it became clear that the vehicle which the security po­lice claimed they had used had been out of service on the day in · question.

The Magistrate dismissed the security policemen' a version of ' events, saying that their account was thoroughly discredited as ~easible and· evasive. Speei~ieally referring to the explanation of' the: alleged" escape-,. the M"agistrate' s Judgment states- that the two policemen deliberate]$ tried to Dd.alead the Court and tha-t they v&re demonstrably- no~ te·lling the- 'truth. Chief Magistrate Stainer concluded tha:t the; injuries· which. caused Mr. Muofhe' a death v.ere sustained as the result of an· assault upon him by the two police· officers and that such ass~t vas in the circumstances unlawt~. (Th~ Inques~ Judgment is attached as Exhibit c.) ,

4-.0 mE !RIAL

· 4-.1 Charges-

After considering tha Inquert Judgment for some months,. the Att·or­ney- Genera1. o~ Venda~ J.D. V"isser,. s.c.~ took action in late- 1982 .. Captain- M\tthuphei Ludwig- Ramal.igela and S"el"geant Phumula Josias Mangaga were charged vith the common law crime of murder: WUpon or about: the 11th ~ November 1 981 ,. and a.t or near SIBASA in the

· district o~ !ROHOYABDOU the accused did unlavf'u.l.Iy- and intentiallT ltil~ ISAAC' !SRIFRIVA MUO!D."' .. (!he charge ia attached as Exhibit D.)

• !be charge was- based upon: the common law .. Under South African law,. thfs •ean't th&~,. £1' all the element~ o~ the crime of murder' were not" proved,. the ac:c:used coul.c! at ill. b., :round guilty of a lesser include~ off'ense; ·!'or example,. culpable homicide~ assault vi th in­ten.1: to- cause- grteveus bod11T injury.. or simple assault.·

!he Sta~ettr case reatea on aircWIStan.tiu evidence, being that when the deceased vas· taken troa the Venda Central Prison early in the. aorning o~ November 1 t , h~ vas uninjured and in goo~ health. When. he v:as r&turtted ta his cell late that night,. however,. he was not in the sam~ condition an~ b~ died that night in hie cell.

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4:2 Cast of Characters

Presiding over the trial was Judge G.P. van Rhyn, the Chief Justice of Venda. Judge van Rhyn is an elderly Afrikaans­speaking South African who formerly served as the Judge President of the Northern Cape Provincial Division of the Supreme Court o~ South Mric:a. He was seconded to his present position some· mont'hs before the independenc~ of Venda. Judge van· Rhyn supervised the transfer of po•er f'roDt South Africa to the· new Venda authorities.

Assisting Judge van: RhJU were two assessors·~ lfrs .. A.M.B. Pourie anct Mr. R. Rurapede. In South Uri~ap it is common that judges­sit with assessors during serious criminal trials, especially when there is the poasibi1ity of capital punishment. As South Africa no 1onger has the· jur,r system, assessors serve the jury-like function of assisting the judge in the findings of fact .. On issues of fact, each asse~sor has equal authority to that of the ju~ge and to­gether they can outvote the judge. On issues of law, however, the assessors have no authority and such decisions are up to the judge al.one. Assessors are- uormallr chosen. from among- magistrates or advocatesr. although in technical cases experts !rom other fields lllight be calle4; ·to~· example-,. mr ac:c:auntant" in a fraud case-. Mrs-. Pourie is ayoun~krrikaans-speaking South A!rican who practices part-time as an. advocate in the- lforthern !rans~aal. .. Mr. Ramagwedep a black Ven4an,. serves- as a Ve-nda magistrate.

Prosecutiug th• case- vereo J.D .. Visser,. s.cr.,. the- Attorney General. o~ Tend~ ancl St .. J.A .. lfan.c:kteiow, the Deputy Att-orney General. of Venda. Both men are- vhi teo s-outh At'ricana seconded to the Venda governmen1i. Mr. Visser il!f Afrikaans and Mr. Mancktelov of Eng1iah background.

Appearing ~or the de~ence were J.~. Liebenbergp s.cr., and A .. cToubert,. both An-ikaana-apeald.ng South ~rican advocates froa the Johannesberg bar .. lfr- Liebenbe-rg,.. an elderly- man, had ~eviously se-rved as ~he Attorney General ~or the Northern Cape Provincial Division,. durius- the· "SIIe periocl in. which Judge van Rhyn served in tha-t. ttivts~on. In§ltrueting the cfe:tenc:~ advocates was Mr. A. Lucke,. the- State·.A:ttorney ar Venda. !he- de-~ence of the two policemen,. as well as their proaeeu.tion,. waa therefore :tinanc:ed by: the govern­aent of Tencfa..

The- ·no accused,. Captain Rairaligeia attd Sergeant Mangaga,. were both pollcem!tn o-r. man:r yearEJ' e-xperience. When charged 'Vi th Mr. lfuofhe' a murder,. fhq wer~ not" arrest"ett. Rather-,. they vere granted the status" o~ "'~e-· on warning",. aeaning that no bail was required . o~ them .. Mter trial. each day,. they were -rree· to leave the court.

i

4 .• 3 Geography of the Courtroom

A diagram of the courtroom appears as Exhibit E. As can be seen;­the courtroom would be quite familiar to anyone with English or . South African experience. Indeed, the only feature distinguishing the Venda courtroom from a normal South African one vas the shield of Venda appearing on th& vall behind the bench. The trial was. conducted in Afrikaana~ with senten~e-by-sentence· interpretation into Vendavhen necessary.

!he ~irat row. o1! benchea tu: the- gallet7 vas reserved· for observing poltc.eaen. (both plainalotheS' and unit"ormed) ~ newspaper reporters,. and ~self as~ otrtei&L observer-. A correspondent of the Rand Daily Mat~ and the S"outh Af.ri.can Press Association, Mr. Khangale Makhado, attended each day o~ the- trial .. Reporting on a. part-time basis vas a Soutlr A~ric.au Argus B'ewspapers reporter, Mr. lfel, and a journalistic team from Drum· magazine .. A. representative of the Venda Broadcasting ~orporation was also present. No foreign embassies sent observers to th! trial. Copies of such news clippin~ as I vas able to collect are attached as Exhibit F.

The remaining puhll~ bencheet were ~ wtth relati vea o1! the de­ceased anct spectators !'rom the community· .. As is normal in s-outh Uric•,. the- courtroollt vas ape~. to the public.. All who .wished were abie to enter, excep:t: ~or the last day vhen there vas not' enough space in the bencheS' reserved for non-police regular public. Cameras were- nat al.Iowect _in court .. On the last dayr a confronta­tion took place outside the court buil~ing between one- of" the Drum photographer-a anct a aecuri tT poll ceman. The photog:-apher vas- tak­ing photographS' of' th&- exterior o'£ the building and the security policeman co~iscated the fil.Jil. I. am not aware of any legal basis tor thiaconfiae&tion.

•

. A~ th• opening~ the trial:, ·the cfe~ence raised the question of admissabU!.tJr ~tv& ftemt!f. o~ evi4ence: (1) the .written state­mente. made by th• aacuaecl in connection •1tn the police- investiga­tion o~ Mu~he-'·e death anc! {2)" the oral testimony- given by the ac­cused at the Inquest. !he ground '£or objection vas thatr the ac­Qused had not bee~aware that these would be used. in a criminal proceeding against. thea and that th~ were not properly warned of their ·rtpt aga.illa1: aett-tner-illlin&tion. ,

& trial within a triaL then took place on the issue of · adaiaaability. Among the witnesses were several polica o~ficersp

Chie~ M&giatrate Stainerr and the first accused, Captain Ramaligela. During thia evidence, it came out that the written at&tementa of the accused _had not been submitted until late

8

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October 26, 1981, the day o~ the bombing at Sibasa Polic' Station, Mr. Muo!he had been at home. On November 5, her husband wentwto Durban to collect clothing which he sold in Northern Transvaal. On November 9, the two accused came to the Muofhe home and asked. ~ -where Mr. Muofhe was. The second accused, Sergeant Mangaga, threatened to arrest Mrs. Muofhe since her husband vas not at home. !hey searched the- house and Security Police Captain Madzena · told her that she mu.st not run away-. On November 10, Mr. Muofhe, returned bef"ore- 6 a•·elock tn the- evening. She i~ormed hiat that he vae van'te~ bT the- pallce-- and that she did not- knov why. Re- changed his elothea in ~n1:. ot' her. Reo- appeared in good· health, . he had no 110unu ancf complatnect o-r na paizr. Late-r- that evening,. the- ~irst accused,. C'aptai~r Rama11gela,. came to the Muothe- home and after a. ahor1: ar11ment with her husband. a.t. th&- ga.~e- took hill ava:r.

Mrs-•. Muothe then· tried to :find out where her husband was, but vi thou:t success. !rer t'irst- c·Iue· that' anything vas amiss came on Friday November f~ around 1 pm, when friends gathered_around her house to mourn. with her, they- having heard a rumor of his death. On NoveDtber t~~ she vent 'ta Brigadier Leshi of· the police, who said that her huaband'a death was news to him. She was never offi­ciall;r in:f'ormea of' the cteath of'· her husband.

On. J"anu&.rT f ~.. f983',.. Mra. Muofhe waer escorted to pollee headquarter-a. C'aptain,Rama1igela told her to write- ~ statement 'that her husband had not. been. home on. Oc-tober 25,. the day o~ 'the explosion,. and tha1: he transported three young men who came to thei.r house.. She- ref"used. !he· statement vas then. written -ror her and C'ol.on~l Rumahwan~ o-r the SecurftT Folic& told her it woul.d be brought' to her ta sip •. !hi• vas. clone- on J"anua17 17 and she refused to· sign f:t:. She said that" ahe wanted to vri te her own statement .. During eros& ezaa!nation.,.. Mrs. Muofhe said that she·was quite c:ertailr thai: trer-- l!usbancl vas: home> on th& da7 o~ the- explo­sion because she vas &tudJing :ror a univerity ex811t the next day and had apecif'ic~ arrang~d for her husband to babyai t.

. . !11~ next witness vas C:.pta!n R.J .. · M~une,. captain of the Venda National !'orce anc! asafstan.t he.ac!-. o:r the Venda C'entral Prison. On November 10,. he wa& callect to: the prison. m the evening in order to admit Jfr. Jlfa.othe,. whO' waa brought to the prtsoa. by-· the tva accused and ano.'ther- mesber ~. tjle S'ecurity Poiice .. lfothing appeared to be- wrong w:ith. !fr. Jtu.o~e"B' health •. On the morning of Bovember 11,. the two accused took ~- lftlofh• t"rollt the prison. . .

The nert person.. cal.led vas Major A..lf.ll. Bongwe,. the chi,ef' o:r the Vencfat National !'oPCe Priaott Department'. On the morning of llovember rz,.. as he vaa washing be:forer work,. hilf telephone- rang and he vas toX4. that aoseone had 4fed ~ the prison. Re rushe~ ta the cella ancf :found Rr.. lfu:afhe dead., sitting on top o:r a. toilet. seat vi th a hand on the water tap· and his mout-h nert to the tap- as i:t hea were drinking water. !he- major felt Mr. llfuofhe' s neck and there vas no pulse .. Re ordered that the cloctor be called to certify death and that the police be 110tified. Pho'tograpba were taken.

10

(With the prison witnesses~ an in camera hearing vas held. Thi-s portion of the testimony is supposed to have dealt with theae­tails· of prison security and the custody of cell keys.) . . Constable F.W. Mulaudzi, of the Venda National Force Central Pris­on testified that on th~ evening of November 11, a car drove up to the gate of the prison. Captain Ramaligela vas in the car. The constable opened the gate and the car drove in and parked next ~o th~ entrance of the· prison. He and another prison officer helped carey a person :troat the car •. Mter moving a short distance- from the- car the-- person. sa.id: tha.t: he. had le:!t some clothing in the car. !he- aonatab1e8' put: hilt into hia cell where he lay on the aat. He appearect tcr b8" lik• a 4ruDll: person.. Ott crosfJ examination,. the constable said that :t'our people carried Mr. Muofhe. He had no strength--he never tried to. stand and the prison officers never attempted to le't him s-it down.

Constable A.P. Ihalushi of the Venda Central Prison testified that on !rovember t t he was. on special duty. He saw a car come Y1 th the accused aa passengers·.. !hey asked some of the prison offlcials to help and they carried a person from the car because he could not walk. A:!ter three paceS',. the:· person said that he- had left a shirt in the car and Captain. Rama1igeia vent ta get it. !he person vas. carried. rtgb:t into hi.~ cell.

Warrant. Of:!icer G.P.. lfasiagvaia. testified that on November 1 t. he V&S' alsa on spec:ial. duty. A car arrived at the prison with the ac­cused as passengers. <raptain Ramal.igela asked that Mr. Muofhe be carried. to. his. cell. lfarran:t Of:!icer Masiagvala peeped through the hoi.& o:! lfr. M'u.othe"a- cell at Dridnight and· again at 4- am and sav Kr.. Xuone in hi& blankets on the ma.t.. Around 8 am~ after knocking o~f work,. the vi tness sav !fr .. Kuo:the dead on the· toilet sea-t ..

!he n8%t. State vttlies& was Warrant Officer M.E .. Betshandamap re­ception clerk a.t the Venda. prison and assistant head of the prison. .. On:. lrov:ember tz~ a't. 6:45' a.m .. ,. he came to work ud opened the cells for counting .. In cell Ko .. 7,. he peeped through and saw a person. ort the toilet sea.t. 111 th his head bowed down to the sink.. Re shoute~ ~or the person 1:a come to the door but there ,.., no reply. lie opene4' the door ant!' shouted. !here V&S' no reply. Ere then. sav that; lfr .. lfuofhe- was-, dead ancf called Major Bongve Be:! ore the 4;octor &n"ived,. vartoua pcrllce and prison officers came to the cell but the body ,_. left i~ 1 ta- place 1mtil the- doctor-• Sc arrival... Upon crorra examination,. the witnesS' said th&t :!or !errorism. Act prison­ers such as: Jllr-.. Muofhe,. be-fore aa d'octor is called -the prison offi­cial.& JllUSt seek pM"Dliasion fro~~r the- s·ecuritT Police, and when the doctor comes~ the- Se~i~ Po1fce must be present.

!vo :!urther police o:!ficiala then testified as to the trans~ort o~ the bodr to tha mortuar,r.

!vo fonrer detaineee testi~fed. Mr. M.C. Jlfu1audzi testifled that he had been detained around Jrovember 6,. t98f. lfe vas- held in a eel~ c:J.ose to Mr. Muo:!he"s .. In. the night of November 11-12 he had

ff

been awakened by a cell door opening and could not sleep_. . Thereai'ter he heard no more noises during the night. On the 'morn­ing on November 12, he heard that Mr. Muofhe vas dead. Mr. H.M. Mutshekva said that he had been detained November 11 and vas held · in the cell next to Mr. Muofhe's. He said that during the night of November 11-12, he was awakened by a light in the cells. He heard. nothing further during the night. In the morning he heard of peo­ple talking about the death o~ Mr .. Muofhe.

!he t"eatimon~ aboveo had taken three days,. Apri~ 7 though 9-, 1 ge;. 0~ April.. tO, the f'irst; of' the doctors· testi~ied: Dr. M-.. !"eichler,. the Diatric:t: gur-geon and medical supervisor o~ Simon Fraser liospi tal.,. the hoepi.tal. serving the- Venda area.. On the- morning of l"ovearber t Z,. Dr.. !"eichler was te-lephoned and· asked to come to the prison. !here,. tn solitar.y confinement" cells, he found the corpse of' Jllr. lfuofhe .. Ire· certified the death anct thereai'ter examined the body-. -·~

In his examination,. Dr. !reichler found general.ized internal bruising, severely- bruised sct:otum,. very pale complexion and a ma­jor 1oss o~ blood. Prom the abdominal cavity- alone, Dr. ~eichler drew more than one- liter o~·blooct. Re- f'ound severe brui~ing on Mr• Xuofte"B' legs and trunk,. skull:,. and scrotum,. and bruising on: the­chest. .. !bent vereo- smal.~ lacerations on the- liver and the- bladder was bruised. .. trpon · croaa· ex&Dtina.tion,. Dr. ~eichler said that be had perf'ormed: 89 post" mortem& in t98t ana 67 in 1980. Quite a few of these we-re-· assault cases. Ria opinion was that" the internal bleed­ing came either from the- -l.iver or from. the right kidney.. He found bruistn~ ail over the sltuX!. !his vas not from a. tall since it woUld have require4 repeate~ ~alla~ !here vere no bone fractures. Re said tha.t the death vas causecf either by the- sev~re bruising or by the intern~ bleeding. Ire said th&~ a person may die after los­fng only 0 .. 5 ~f:te-nr· of .blood. Mr .. Muofhe had lost more than 1 11 ter in the a.bdolliina.J. cavity.- ana more blood in other parts of the body ~rom the bruiaing ..

On Pebruar.r U,. t98~ p- Prof'. ;r. n·. Iloubser, the State Pat'hologist in Pretoria. !'or 2~ years,. testif'fed: about" the post mortem examination which he perf'orureci orr lfovember f 7,. 198t together vi th a pathol.agfst: representing the family,. Prof... Simson. (Prof'. Simson~s finding& yere- substan-tial~ the same aa Prof'. Loubser's, and: t"o~ thier reason he was not cai.l.ed to. testify .. ) lie found dam­age to tbe le~t si4e err the scrotum, the cheS't,. t'oreheacfp lungs, gall bladder,. kidneyS', bladder,. back,.. right" eye,. left leg and but-tocks. !here were internal bleeding and severe brui~ing and thes& were ~he cause of' cfeath .. Prot'. Loubser said that he could no~ say. whether injurie• were inflicted in the back of the bakkie, nor hov many bio• had been received,. nor how many- falls, nor how h&M the :!aile and blovtp were.

The body- waS" :found with the water- tap- in the mouth. ~his is to be explained br the extreme thirst experienced by someone vho has had severe blood 1oss and is in ahock. Death was not caused by a bump against" the tap because the lips would have- been swollen and they

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:( '! ~I .1·.

were not. Prof. Loubeer said that he could not say with certainty whether the injuries could have been inflicted in the back of a bakkie. He did not believe, however, that all the injuries could . have taken place during the supposed struggle in the back of the bakkie.

On the following day, February 15, an official of the Venda De~ partment·ot !ranspor~ and Works, c. Dzhivhuho, testified. He said that the log book ~or the bakkie indicated that this truck vas not used on November ll,. 1981. !he log book, consistant with. the pet­ro~ record$~ indicated that the bakki& had been last used on Au­gus.1: ;,. 198t anli: was not used. again. untU November 14,. 1981 • Mter thia teettmonr,. · theo State elond it.s case.

,.

!he defense th~ moved ~or the dismissal of charges against the second accused, Sergeant Mangaga. •. The motion vas denied.

4.6 !he Defense Cas&

!he de~ense onl7 carle~ two vitnessea,. the two accused.

Captain MUthuphei tudvig Ramaligel&teetified that he had served 15 years in the pol.ice, tO years in the South African police ~d then 7 ye&rS' in the Venda lfationai. !lorceo. lfe- was in his third year a&' & captain. lfe had been assigned. ta .investigate the ~terrorist acti~ites" at. the Stbasa policeo station. He testified that on No­vember tO between 8 and 9 p .. Dt. he vent to Mr. M'uo:the's- house with :tour other pol.icellle!r., arrested Mr .. Muof'he and took him to the Vend& crentral Prison.

On. IJ.aveaber t f,.. ~ter 9' in. the lllorning, he sent a sergeant to fetch Mr. Muofhe to.: the investigating office. Some time"before 10 a.a.,. he told the other policemen ta leave, leaving him alone with Muofhe ana the second accuse4,. Sergeant Mangaga. Re informed Mr. Muofhe th&t he had been detained under gection 6 of the ~errorism A.ct. lie interrogated. Xr- Muofhe till lunch and after I.unch until dusk.. (During the Iilqu.eat,.:. Captain Ramaligela testifled that he o~:tered Jl(r. Muofhe ~unch but that the latter refused to eat.)

A:tter lunch, according to- the testimo!ly,. Jlfu.ofhe admitted involvement with the· attack on the police station. Re would tell the truth. lie gave- ~ long list o-r names·. o-r people involved. !he captairr questtone~ hiDt about- the names.. Mr. Mu.ofhe sa.id that at the time· o~ the pollee atatiou.attaclc,. three men came tcr his home. !hey called to. him,.· vauting petrol :rrom hi a e:.r and; t~s:tep~r't. M~. lfuofhe said that in 1980,. a certain young man had come to his home and said that he may come at a later time. Mr. Muofhe said that he vou1c! take the securitT policemen to the place where- he dropped o:tf the terrorists ~te~ the police blast occurred. He insisted, however, that thia· be after dark because he was afraid that peopl~

'"'•

would see him with the police. .. Captain Ramaligela went on to say that during this ride, Sergean~­Mangaga drove, with the captain and Mr. Muofhe sitting in the back with their backs to the cab. Muo!he was on the captain's right. He was not handcuffed because he was being cooperative. Soon after · leavin€ the police stationr Muofhe tried to jump !rom th~ bakkie. Rama.l.igela.. quickl.T grabbed hold o! Muofhe's right leg,. which vas stil~ in the bakkie. Mr. MUofhe's body hit the side o~ the bakkie with hitr whoie !~'t aid.e- outside· of" the vehicle. R&mUigela pulled with ai.l. hia force .. Muofhe. then tried to- jmap over the other side o~ the bakkie and :tell. an his_ stomach· .and face-. !he Captain said that thie- ali. happenea very- quickly-, .. that it vas. dark (no street I.ight&) and on • grave~ raacf.. !here was a lot o:t struggling. Re estimated that the bakkie moved about 200 meters during this atrugg1~ be~ore~he sergeant stopped. The captain then instructed the sergeant to turn back to the polic~ station and get another vehic;le,. a Datsun sedan. Muofhe got' out o~ the- bakkie easily and the captain did not realize that Muofhe was hurt • . In. the Datsun,. Mu.ofhe- thought they- were taking him home-,. but the captain told: h!Dt that the investigation would take time and that MUofh8"· would have ta gcr back ta the- prison. A.t. the prison·,. Mu.othe refuse~ to. move out of' th~ car .. Afte-r the> captain pulled and :tailecf tci . move: hilt he asked !"or ~e-lp .. · TWo prison. guards came and held MUofhe by the- arms while- Muofhe- walked to the prison. The captain did not notice that Miletfh8- vaa injured. Jlluofhe did say tha~ he had le~t-his jersey- 1~ the- car and ao•eone vent back to fetch it. In the cell.,. llfu.ofh& sat up on his 11attresa and the two aecusec! !e:ft ..

The- captain: heard about' ~ the- nert morning that Jlluofhe had died. He- couJ.d nQt explairr: haw the injuries hac! been sustained. Re vent on v:tth his work~ tnterrosattnw other detainees. Upon crosa e%am±natian~ the captain sai~ that he did not figh~ with Muo:th~ in the back a:f' the bakkie,. that' Mu.ofhe had tried to jump and the cap­tain: had us~ the- reasonable- f'orce ne-cess8.17 to pull him back and: subdue b±m. !here were disparities between the captain's testi­&0117 anct his vrt~tett statement. Por example, i.t vas not quite clear wheth:er to capt~ hac!. grabbed Pmofhe- by both anklea ~ or by the rfgh't ankle,. or by the- right arm- It vas al.sa unclear which partS' of' JlfuoOe• a bad7 had hit. the aicte- of' the- bakkie. The captain explained these- tiaparittes iJr tva. vaya. Pira't,. he said he. was nov in orai t"es:1:1DrODT using the Venda. l&n~U&ge and in the statement he had u~recf a ~or&iEf tongue- (English)-. Secondly,. he said 'that in the atateme!rt he cfi~ not elaborate- on the- details-. . .

!he captain was then. asked ta acco~ for wh7 the logbook did no't' refiect usage of the vehicle on the dsT !n qu4!t.''tion:. lle- said tha~ th~ Security Police were not obliged to use the logbook.

Sergeant' Phwmla Joaias- Jlangaga, the second accused~ was called . to the- stand~ He sa14 tha~ he had assisted Captain Ramaligela in the investigations and interrogation~ follovins the police bombing. He ...

14

corroborated the captain's story with regard to the proposed visit to sites where Muofhe had allegedly transported the terrori~ts. Interestingly, he said that during the drive in the bakkie, it had been dark and that he had not been able to see the struggle in tne back. (In his oral testimony at the Inquest, he had described in. great detail the struggle in the back of the bakkie, the position~ of" the people involved, etc.) On cross examination, the sergeant said that he coul.d not account for: al~ the time invo~ved,. that,"ve blacks ... cfon't watch the time .. And he· said that "continuous quest:ioningtt· had · br-ought about the- change- in Muothe' s story-,. from ini:tial: denial o:t" knowledge- to confession of" assisting the attack.

Mter these two· wi.tneases,. the- de:rence- c-losed 1 ta case on Pebrua17 t6.

· ..

4-.. 7 !'inal Arsuments-

!he frtate'"s '0-minute-long f"inal. argument" vas given by Deputy- At­torneT General Mauck'telov,. Att-orney General Visser having been necesearilT abaent for another appointment .. ~e State' a case be-can briefiT BUDUilarisecf ae f"ollowa:. ·

Pi.rst... at the time- a-r hie detention on November 1 0, and at the-time when the tv~ accused took him fro£ the prison on the morning of' I"Clvem.ber 1 t ,. it wa&' common: cause that Mr. Muo!he- waa in good health and . uninjured- lAlen he waa brought back to the prison late in the night. o~ November f t, however, he could. not walk under his own power •. Re •as then alone in hia cell until the next morning when ha- waa found: dead~ Pathological. evidence showed that he had been brutally bea.t"'en and that he cfiecf of" these beatinga. !he injuries causing hta dea.th occurred during the 'time when he vas in the custody ~- the- tvcr aecuse4,. and it vas common causf that only the tvo accused were vi th Muofha during the time when. he was away f'rom the priaoEt .. !hq~ there~ore~ JIIWJ1: be responsible. for the injuries.

Aa tCl a atruggie·ha.ving taken: plac& in. the bakkia,. and thia being 'the cause o-r 'th~ itljuriea,;. the State- argued that thiS' defense was inherel!'tl7 imProbable. Pirat,.. the vehicle in question waa shown not t~ ha.ve been used on Bovember Lt. Second,. the injuries were so ertenaiV8' and took place over such an. extended period o'£ time that i~ i~ highlT improbable that &lL these injuries eould ~ave taken place in. a brf~·-etruggl& in the back o-r a bakkie. Lastly-, the po­lice had aign~i.cant: problemS' e%plain1Dg the passage of -time.. !he journey in the bakkie wae .uppoee4 to. h~ve started shortly after dusk,. around 8:00 p.a. Given. thf!' distance travellecl according to the policemen,. thie journey woulcf have taken at most '0 ainu tea .. ret the prison guards said that the prisoner was not brought back to the prison until shortly before midnight. How are these three h~ to be accounted ~or7 !he accused did not say. Nor is suicide a poseibilit.y; no witness suggested that.

1~

In conclusionp the State submitted ·that the two accused ·were no't truth~ul witnesses and that the overwhelming weight of the circum­stantial evidence proves beyond reasonable doubt that the two ac~­cused murde·red Muofhe.

Final argument for the defens~ was delivered by Advocate Liebenberg. His 15-minute summation was punctuated by encouragiang questions ~rom the bench. When Mr. Liebenberg stressed the gaps of evidence in 'the- S.tate" a case-t·or" example,. what happened during the Dlisaing time on the va:r to the prison,. or the- question o~ the keeping- o~ the- jail keT&-the- Judge-- agreed,. asking~· !hen your- el.i.;_ enta· d:on.t 't have ta: ~ill the p.pa,. do theTl.· Judge van Bhrn asked _ ... _____ . th• def'enae hov it anallered Pa.thol.o.giat Loubse-rts evidence that ali the injurieS' could· not hav& taken place in the back of' the bakkie. _, Advoca.1ie- Liebenberg- responded bT asking- in turn,. vho coul.d sa,. what tnj'Uries- m:igh't occur in such a quick time vi th so much happening? !be- Judg~ then asked·: ttWhose place is it to say when and vhere.other injuries took place?~ Advocate Liebenberg re­sponded that,. of courser that vas the State's burden and not that ot hia clients. .. ·

!he Court adjourned shortly before noon. Judgment. would be deliv­ered at ~:'a ~.tha ~ternaon.

Judgment of the· Court. vas delivered by Chief Justice van Rhyn~ He spoke m. a. strong vatc.e v-ith. sentence: by sentence uanslation !rom Mrikaane inta Venda. !he two assess-ors concUr"red in the­judpertt a~ the: meri ta bu1: cti4 nat speak.

•

5.t !Vt4entta;r Rulins

•• !he ~irst part o~ 'the jdpent was a; reading o'£ J"udg• van Rhyn' s reaaona :!or adlti t.tilrg- tn1:o- evidence- ther written S'tatements o~ t-he two accused. while- suppressing the- evidence- given by theJt at- the Inquest.. ..

On the issue o~ the· adaiseibii;!ty. o-r the statements, the Ju4ge sai~ that !t ts acc.epte~ law tha~ a statemen~ is not admitted ~ainst &lf accuse~ i:t' 1t aas no~ been treelT given bT him .. After summarizing the circumstances in vhtch the- two accused had given their stateaentsr the Ju4ge concluded that the statements were volunt&ey". !ha. statements. had been given in the course of' a normal pollee investigation ±.nto the death o~ a prisoner. !he tva accused

16

had written their statements themselves and had then ha~ th' op~ portunity to edit them before signing. The statements were made some two months a!ter the death and there had been no evidence that the two accused had been forced to give them.

The oral evidence given by the accused at the Inquest, however, would not be admissible. The Court acknowledged that the Chief Magistrate had warned the accused before they gave evidence. (~ou have been sworn to g~ve evidence in thia inquest and I must warn you that you are ttot.oblige~ to answer questions which might in­criB±natr you.~) But th~ Cou~ said that this warning vaa not enough.. In an inquest in which the S'tat• prosecutor v&S' leading evtctencep· the Stat• owect a duty> to :th& accused to indicate- to them vhic~ questions would be incriminator,r. !he Court found that there had been.. an •leun.1: o-r ~airness because the two accused had not yet been charge~with any crime and were unaware that they might b& charged.

In summa17, the C'"ourt ruied: that the warning given at the begin­ning of th& Inquest testimony was insufficient. In addition~ the State prosecutor and/o~ Magistrate were under a. duty to varn.the accused,. bef"ore each and every question which might be incriJainatory,. ·that the quert1ozt urigh1: be incriminatory and that the accused. had a. rtp1: no:t ta. incriminate himaelf'.

~.z Judpent on the M'erita

!he 1udgment on· the merits was delivered orally by Chie~ Justice van Rhy'n .. As of" the.. 'time ~ lef'-t· Venda,. thia portion of the judgment hacf not been. transcribed and the following record: comes from m.r trial notes.

• !he Court'& judgment vas. a technical one~ based upon the- burden of proof" that the State- beare in a.c:riminal 'trial-i.e.,. to prove each eiemen~ o~ t~e crt.e berond & reasonable doubt. !he Court em­phaatze!.tha~ there ta na burden on th~ accused to convinc& the Court o~ the trutl:t-~ th• e%piana.tfon. the accused might give for th• events. ben tt the accuse~"& e%p'lana1iion is improbablep there can be no c~et£ou·UD!esa the State prove& beyond a reasonable daub ... that. thia explanation is f'al~Je. •If" there- iS' any- reasonable possfbilltT that: th• accused'S' explanation might be trU'•p. then the accused must be- acquitted. . . In this case-,. s&!cf the Court:~ the State had failed to prove that there was no reaaanabla pcaoi:il!ty a.! the accused's explanation being true.. !he- accused adJa1 tted having injured the deceased in the attempt ta prevent hia f'rom. e&caping from the bakkie. Pa:thologiat Loubser coul.d not say that particular injuries could not have taken place in the bakkie.. He di4 s~ it vas highly unlikely that a.I~ the injaries could have taken. place there, but it was im.-

t7

•.

possible to say which injuries were suffered there and whic~ were not. If the wounds in!licted by the accused were so serious, why was a nurse not called by the prison guards? It is not for the • _ Court to speculate.

An important element of the State's case was to prove how the remaining injuries were inflicted. There was an important gap in proof--what happened between the deceased's return to prison arid his. death the following· morning. The State had the burden of prov­ing that no one O;ther than the accused could have injured the deceased. The jai~ keys were· not properly accounted for, as was testified to in the- in camera hearing. Because of the question of the keys, the- State did not prove that no one could have had ac­cess to the deceased in his prison cell •.

As to. th~ testimony o~ the accused~ it was not that different !rom their written statements. The Court could not say that they were unreliable witnesses.

In conclusion, the· Court said that it could not find beyond a rea­sonable- doub~ that (1) there was no struggle in the bakkie; (2) that the deceased was not injured in the bakkie in the struggle, and (3) that the injuries suffered by the deceased in addition to those suffered in the back o~ the bakkie were inflicted by the accused. There vas not, therefore, proof beyond a reasonable doubt that the accused had killed Muofhe·. To attempt to prevent an es­cape is not crimina~. The accused were therefore acquitted.

The judgment did not express concern o.ver the death of Muofhe. Nor vas there any word of" caution directed to the police regarding their treatment of security detainees.

6.0 AFTERMATH

Immediately after. the conclusion of the judgment, the Judge and assessors rose ana left the courtroom. The packed gallery also rose.. The accused ren down the steps !rom the dock back to the cella. A~ soon as they hit the- bottom landing, they let out loud victory whoops, which were joined by the policemen below in the cells. It was somewhat eerie to be present in the silent courtroom full of people an4 to hear the muffled victory yells coming up from below, as though ve were above the lockerroom of a winning football team. · ·

Because the judgma:t ¥&3 ~ne c~ acquittal, there can be no appeal of this criminal trial. It is possible, however, for the Minister of Justice of Venda to petition the Appellate Division of the Supreme Court of South Africa in Bloemfontein to give an advisory legal opinion on the evidentiary issue of the admissibility of the Inquest testimony~ Aa of the time when I left Venda, no decision

18

had yet been made by the Attorney General's Office as to whether to request the Minister of Justice to make this application.· Such an advisory ruling would be of precedential value in future cases but would have no effect on the acquittal of the two accused.

Still pending is a civil case filed by Mr. Muofhe's widow, child, . and mother against the police !or damages arising from his death. The judgment of acquittal in the criminal case makes the civil · case more difficult but still not impossible. Under South African law, the burden of proof in a civil case is less strenuous than that in a criminal case. Additionally, the civil case must be heard before a different judge, one who has not already heard the evidence of the circumstances surrounding the death of Mr. Muofhe.

7.0 EVALUATION OF PROCEEDINGS

Outwardly, the trial of the two security policemen accused of murdering Muo!he appeared to be fair and orderly. The courtroom was open to the public, the proceedings were held in a deliberate and orderly manner, the right to cross-examination was observed, the defendants had their ovn counsel, the Judge was independent of the State, the prosecution was vigorous. Yet, in light of the evidence, one must conclude that the judgment was incredible. How is this to be explained?

There is no easy answer. In the end, the way in which I as an out-side observer understand the result is to attribute it to the pop­ular mystique and fearful respect accorded to the security police, considered together with the white South African's fear of "terrorists" and their allies--those persons who struggle, some through war and some through peaceful means within the country, for the overthrow of the apartheid system and its replacement by a unified South Africa under majority rule. These attitudes subconsciously shape the perception with which a case is approached, with which evidence is heard and evaluated. In a mat­ter of alleged state security (in this case, the behavior of the security police in 4etaining someone under the Terrorism Act), the benefit of any doubt is to be accorded to the security forces.

In arriving at this conclusion, I con~rast the result in the Muofhe murder trial with that of a case a few months previously, in which the.Venda Minister of Posts and Telecommunications vas hanged on December 23, 1982. The minister was charged and convicted of having engaged in so-called ritual murder. This ~muti~ m~~da~ is ~hideous practice still somewhat prevalent in the Venda area, in which innocent people are killed, their bodies dismembered, and the body parts used for magical purposes.

Although that case was political, involving as it did a government minister, the murder had no state security overtones. Nor did the

19

hanging cast doubt upon the security of the State. To the contrary, the judgment helped to give credibility to the Sup·reme Court of Venda. It could be seen as an institution which would punish even high officials who engage in barbaric practices.

In the Muofhe case, however, a judgment of guilty would have had state security implications. Recalling that Muofhe's death was on­ly one of 50 deaths in detention in South Africa, doubt would ~ave been cast not only on the methods of the Venda security police, but also on thei~ models and advisors, the South African security police. Protecting South Africa from the "total onslaught" of the "ter~orists" and their allies would have been de-emphasized in fa­vor of vindicating the death of a black·man who was detained under the Terrorism Act and vho was thus perhaps thought to have been one of "them" anyway. I cannot say· that these factors were con:.. sciously in the minds of the Judge or the assessors or those with whom they had contact. These factors might, however, have shaped the lenses through which those officials evaluated the evidence and came to their decision. ·

Given the record of official passivity in cases of death in deten­tion in South Africa, the fact the the Venda Attorney General's office chose first to pursue the Inquest into the death of Muofhe, and later to prosecute the two security policemen for that death, demonstrates independence and integrity. It was my impression that the Attorney General's office performed in a competent fashion. As with any prosecution o~ police, investigation of the case was difficult. The Attorney General's office found themselves having to cope with missing documents and with police witnesses who were not eager to testify against their colleagues.

The one question which I have regarding the prosecution was the decision not to appeal the evidentiary ruling. This would have meant an inconvenient and lengthy adjournment of the trial pending consideration of the Appellate Division in Bloemfontein. Given the important contradictions between what the accused said at the Inquest and what they said at t~ial, however, such an appeal might have been crucial. And an appeal might well have been successful. In its evidentiary ruling, the trial court did not deal with the fact that the two accused were represented at the Inquest (by the State Attorney, Mr.:A. Lucke), and thus had a lawyer who could ob­ject to incriminatory questions, nor with the fact that the ac­cused were experienced Security Police officers, nor with the log­ical conundrum facing a questioner wh~ attempts to follow the trial court's warning requirement: how to know which qu~stions re­quire a warning, without knowing beforehand what the answer to the question might be,-·or whether the answer would be incriminatory. In any event, the prosecution chose not to appeal and the trial ............ o~od ,!'•'-'..,...,_,.._ •

During my two days at the trial, I was struck by the passivity of the assessors. While they appeared to be following the case quite closely, they rarely spoke or asked questions. From my brief in­terviews with the Judge and the two assessors, my impression is

20

that the personality of the Judge was far stronger than that of his two assessors and that Judge van Rhyn would have had the domi­nant role in the fact-finding.

In view of the controversial legal status of Venda as an inte~na­tionally-unrecognized "independent" homeland within South Africa, it might be well to underline again the court atmosphere. The Judge, one of the assessors, the Attorney General, the Deputy At­torney General, the senior defense advocate, the junior defense advocate, the State Attorney, the Master of the Court, and several of the senior policemen observing were all white South Africans. Except for the shield of Venda behind the bench, the court could easily have been anyvhere els& in South A!riea. The one difference is that in "central" South A:trica. o.ne probably would not have seen a black man sit as an assessor. The common law and legal precedents applied during the trial were all South African ones. It is entirely fair to evaluate this Venda trial as though it were a South African trial and to include it within the South African jurisprudence.

8.0 CONCLUSION

Reporting on the Venda result, the Times of London of February 23, 1983 stated: "The near impossibility of getting a South African court to convict policemen of assault of their prisoners, even when the evidence against them seems to be unanswerable, has been vividly illustrated in a trial which has just concluded in Venda." After having observed the conclusion of this trial and studied the documents relating to it, my conclusion is the same.

The South African Security Police, and their partner security po­lice in the "independent" homeland of Venda, possess an almost magical aura which enables them to escape responsibility for the brutalities they inflict upon the detainees within their care. De­spite the finding of the Chief Magistrate of Venda in the Inquest proceeding, and despite the overwhelming pathological evidence, the trial court in its judgment of acquittal breathed not a word of reproach or cau~ion against the ·security policemen, nor did it express sympathy for the family of the deceased nor concern about his death.

· ..

21

9.0 LIS~ OP EXHIBITS

A. Order of Mission

B. Methodology

c. The Inquest Judgment

D. The Charge Sheet-

E. Diagram of Courtroom:

F. News Clippings

:

...

22

LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW

SUITE 520 • 733 FIFTEENTH STREET. NORTHWEST • WASHINGTON, D.C. 20005 • PHONE (202) 128-1700

CABLE ADDRESS: LAWCIV, WASHINGTON. D.C. '

ORDER OF MISSION

'The Lawyers' Committee for Civil Rights Under Law has requested the bearer of this letter, Ralston H. Deffenbaugh, Jr., to represent our organization at the trial proceedings of the State v. Ramadigela and Mangaga. Mr. Deffenbaugh is a member of the Bar of the Supreme Court of Colorado, the U.S. District Court in Colorado, and the u.s. Court of Appeals for the lOth Circuit. Mr. Deffenbaugh is currently Assistant for Legal and International Affairs for the Lutheran World Federation. He has a familiarity with the South African legal system. He lived in Namibia for seven months and has recently visited South Africa as a member of the delegation of the American Bar Association.

We would appreciate any assistance and cooperation extended to Mr. Deffenbaugh to assure fulfillment of this mission.

Formed in 1963 at the request of then President John F. Kennedy to give legal support to the civil rights struggle taking place at that time in the u.s., the Lawyers' Committee for Civil Rights Under Law is a private non-governmental organization. Among our Board of Trustees are former Presidents of the American Bar Association, former Attorneys General and Assistant Attorneys General of the United States, former Solicitors General, law school deans, and local Bar leaders from across the country.

METHODOLOGY

In the course of my employment with the Lutheran World Federation, I had been aware of the upcoming Muofhe murder trial for some time. Several months before it started, I had had conversations with the Lawyers' Committee for Civil Rights Under Law concerning my availability as an observer. At first I had discouraged the idea, thinking that there would have been available observers of greater stature. Finally, as the trial was approaching its close and no other observers were forthcoming, I received another urgent request from the Lawyers' Com.mi t·tee. The final decision vas made on Monday morning, February 14, 1983 and I left for Venda late that ~ternoon, flying overnight to Johannesburg via Amsterdam. ! vas able to leave on such short notice because I already had a valid South African visa from ~ participation in the American Bar Association study tour to South Africa in November 1982.

Documents which helped me prepare for my observer's role included the International Commission of Jurists' "Guidelines for ICJ Observers to Trials" (1978) and the excellent comprehensive arti­cle by David Weissbrodt, International Trial Observers, 18 STANFORD J. INT 'L L. 27 (1982).

After arrival in Johannesburg at midday on Tuesday, February 15, I had a brief layover before flying on to Pietersburg in the North­ern Transvaal. During this time, I visited the office of the at­torney for the Muofhe family, Raymond Tucker, and picked up copy of the Inquest judgment. I also visited the offices of the Luther­an World Federation's partner agency, the Federation of Evangeli­cal Lutheran Churches in Southern Africa, where I picked up the telex from the Lawyers' .Com.mi ttee containing my order of mission. I arrived in Pietersburg around 6.00 p.m., hired a car, and con­sulted with Don Nkadimeng, an attorney for the widow of Mr. Muofhe who had also been retained by the Lawyers' Committee to report from time to time about the Muofhe murder trial. Mr. Nkadimeng brought me up to date with trial developments as he vas aware of them, and vas very belpful in practical arrangements.

I drove from Pietersburg to Venda, ar~iving shortly before 10 p.m. at the capital, Thohoyandou, where I cheeked into the qotel. The Lawyers Com.mittee~had timed its telegram to the Court, informing of my mission, so .that it would also arrive that night.

On Wednesday morning, February 16, I came to the courthouse about 8 a.m. and introduced myself to the Master of the Court and to the lawyers for the prosecution and the defense. I shared with them copies of my order of mission, arranged for a copy to be giv­en to the Judge, and asked that I be allowed to introduce myself to him. The Judge's response vas that he would prefer not to meet with me until a!ter the end of the trial. I then attended court. In the evening, I studied court notes and documents concerning the case. My schedule on Thursday vas somewhat similar except that, . since the trial ended on Thursday afternoon, I accepted an inv!ta­tion to supper at the home of the Lutheran Dean in Venda!and, Rev. T.S. Parisani.

,

On Wednesday and Thursday I was assisted greatly by the reporter for the Rand Daily Mail and the South African P~ess Association, Mr. Khangale Makhado, who had covered the entire trial. He brought me up-to-date on the testimony which had been given before my ar­rival and allowed me to copy his trial notes.

On Priday, February 18, I spent the morning doing back research on the trial. I had extensive discussions with the Deputy Attorney General, Mr. Mancktelow, who vas informative and cooperative and who furnished me with copies of key trial exhibits and the transcript of the Inquest proceedings. I also had an interview with Justice van Rhyn lasting nearly an hour. We did not discuss the merits of the case but spoke about my reasons for being in Venda and the role of the judiciary in Venda and in South Africa. During this talk, he indicated that he had not studied the tele­gram sent by the Lawyers' Committee but did ask if ! was somehow connected vith it.

Friday afternoon, I drove back to Pieterburg. I visited again the offices of !r. Rkadimeng, where I reported on the conclusion of the trial. In the evening, I visited with the Lutheran bishop, S.E. Serote, and spent the night at the home of a German mission­ary family.

On Saturday, February 19, I drove from Pieterburg back to Johannesburg. On the way, in Pretoria, I stopped at the home o! a political officer of the United States Embassy, Margaret McMillian, and reported on the outcome of the trial. Before leav­ing for Ven~a, I had been informed that this political officer might be attending the trial. As it turned out, however, I was the only outside observer. Upon arriving in Johannesburg, I had lunch with the General Secretary of the Federation of Evangelical Lu­theran Churches in Southern Africa, visited briefly with a friend, and flew back to Switzerland that evening.

Upon arrival back in Switzerland, I wrote a two-page press-type summary of the trial which was shared ·with the Lawyers' Committee and carried in the Lutheran World Federation'~ Infor­mation Service. THis story is attached as part of Exhibit F.

Due to the press of my other duties, I was not immediately able to complete my full-length report. During a trip to the United States during March, I vas able to visit the offices of the Lawyers' Com­mittee, report .orally to the Executive Director and t~ staff o! the Southern Africa Project, and deliver for copying the documents which I had collected concerning the trial.

My travel expenses were initially advanced either bv myself or by my employer's travel office. These expenses were prom~tlv re-imbursed by the Lawyers' Committee. · ~

....... ·---- ....... ___ .....__ __ _... . ....,_,_ ---- ~:.-----...-:-·.:· ___ ...__: .. -:._. -·- ., ..... - .. --.....

. . ... ~·· :

. .. r) \.

JUDGEMENT

~~ese proceedinas relate to an inquest in terms of Section ~(2)

ot the Inquest Act, Act 58 of 1959, into the death of

!saac Tshithiwa Muothe.

At the requeat ot th~ Court Mr. Man~ktalow the Deputy Attorney­

aenar~~ haa led the evidenc~ adduced, ~r. Wentzel assisted by

!of:-. a ...... ,. haa- appaarect ro,. the· widow. or the· deceased and

~,.. ~u~k&, the State Attorney haa ~ppeared for the Venda National

·rorce.

The evidence may b .. uict to tall into tour cateaories as follow

(1) That ot Captain Raaaliaela and D/SJt. Manaaaa as to the police version of how the deceased may have come by his inJuries. ·

(2) That ot Dr, Teichler, Professor Loubser and Pr~ressor Simson

aa to their tindinca-on autopsr' :

(3) Evidence aa to event~ at the Central Prison relatina to this

incident.

(.,) Subaidiary evidence ot an ~ancontentious nature, and rei-mal

identification ot the body ot the deceased .

• As to identification of the body this is covered by way or affidavit produced, the deceased was personally known tn

,r, Teichler who performed the initial post-mortem examination,

photoaraphs and slides or the decea,ed are before the Court and in

any event the identity or the deceased is formally admitted by all

interested parties. Evide~ce to the discov~ry of the body of the deceased as indicated in the photoaraphs exhibit 5, on the

morninl ot the 12th November, 1981 is not disputed.

Essentially the isslle before the Co~art is one or credibility,

wheth-r the evidence ot Captain Ramaliaela and,D!Sat. Mancaaa can

safely ~e accepted as explainina how the deceased came br his

injuries s~absequently found on post-mortem examination, or whether

it can not,

Or. Teichler .•. /

-------------·· ---

I

I

I ~

.. _.._ ..... ____ ._._ -·· ·----

0

o~. Teicbler conducted the initial post-mo~tem examination nr

the Venda Central Prison on the 12th November, '98• ~nd hl5

rin.dinas are before the Court by way cr arrtdavit. F.xhihit: 7. llis

conclusions ware that death was caused by ~ev~re bruising and

tissue distruction occasioned b7 ext~n~lve ~se or blunL ror··~.

On. the. 17th Hova•l:ler, 1981 Pro t'ttanor l.ouh:ter toicum i ned the hody or th• deceased irt Pretoria and It ill rttrwr•r in httforft the r.ourr.,

lx!ril:lit 8. Hia ltiatoloatc:ll re.port in before· t:bP. Court, F.xhiblt. 9.

He also aave evidence in Court and photosraphic slides or the

deceaaect•a. inJ11riea were exhibited and artt ixhibit '~"~· The findings

ot Proteaaor Loul:lser are that the cause~ or death we~e multiple

injuriea.with intern~l hae•orrhaae.

Professor Siaaon, wh~ was called by Mr. 'Wentzel, was in fact

present at the poat-aortea exa•inat1on performed by Professor

Loubaer, and his independent findincs are before the Court as

Exhibit 11. In the opi~ion or Proreasor Siason the cause or death waa blood loaa, a~condary to·~ide spread bruising and

hae•orrhaae involvina the subcutaneous tissue· and muse les or the 1 back and buttocks. Havina listened to the ev!ctenco or P~nre~sor

Loubser in Co11rt, his evi~ence waa to Lhe effect thnt th~~u w~r~ no

essential cUtterences between his own rindin&~ and ... un ... lu~ion~ nnri

those ot Professor Loubser.

!here is thus a 11utual consensus or medical opi:1ion as !':.) rn-. c•1u:'e

or death, and this has not been challen&ed by any intttre•t~d pArty.

This evidence is accepted by the CourL, and thus it i$ eun~ludivelt

established to one satisfaction tha~ rhe dec~ased died a~ a result

ot •ultiple inJuries with intft~nal hae~orrhaae.

The question thus arisina is how the d~ceased ~ame to ~ustain these

inj11ries which ~re co•mon cause. Die Captain Ramali~ela and

DtSat. Manaaaa assa11lt him as 3lleaed by Mr. MAncktet~w and

Mr. Wentzel or did he come by them in the cir~umstances depn~ed to

by these two officers after h~vina been w"rn~d A&3lrist sttlf·

incrimination.

Both Captain Ramaliaela •nd 0/Sat. Man~h~3 jave evidence, nnd thei~

sworn state•ents are before the Court. r~tspectively as Exhibits -· -...... ________ ....... ____ . ______ ··-·

..;.. ___ ..... -' ________ . __ _:. __ . -·--· ..... ---- ·- - -~-· .. ....._....~ ..... -~-=...-: .. ·- :. ..· .. _. ....

1 and 2. these state•ents were read in Court and thereafter ad­herred to by the witnesses as being eQrrect. In addition both

witnesses demonstrated to the Court what they alleged took pi~~•

on the back ot the open Land Cruiser on the night of th4

11th Noveaber, 1981. In the result bQt.h Captain Ramallgeln and

D/Sg1:. Mangaga would have the Court believe th3t the deceased, who

it is not disputed was in good heaLth ~n~ uninjured when received

into thei~ aole custody tor lnLerrogatiqn on the mornin& of the

l!th- Noveaber·, 1981: and who, it is not. tHllputed, waa still in

~oo~ health· and uninjured when they set out on the expedition that

.eveninc to •ake indications: ca•• by his injuries entirely as a

result: ot the incident when he tried .to e11cape fro• thtt back or

the vehicl• in which n.. was beina transported with Captain

R .. aliaela.

Since the evidence ot events at the Central Prison on ~he night of

the 11th Nove•ber, 1981, when the deceased was returned thereto by

Captain Ra•aligela and D~gt. Manaaaa is relevant to their

cr"ecUbility i.t _is convenient to exa•ine this evidence at this stage.

The state•ent ot Majo~ Bongwe was adherred to in Court and i~

Exhibit 13~ It is to the etrect that he saw C~ptain Ramaligeln that

night about 11.30 P·•· as he was leavina th~ prlson. h~ did noe see

the deceased in the car and was kept away from the ear by

Captain Ra•ali~ela.

the state•ent ot Lt. Netshivhungululu is before the Court ad

!xhibit 3 and was initially adherred to by the wltn~ss. It i~ to

the ertect he visited the ~rison at '!.OS p.m. that night and

saw Captain Ra•ali&ela eall·on ocher prison orrleers to carry the

deceased t~o• the ear", ond that the de~eased was unable to stand,

his tr"ouaer"a were pulled down oft his buttocks, he did not speak

and his •yes wer"e closed. The deceased was carried to hls cell.

tn evidence the witness souaht to ao hack substantially on his

state•ent : in particular as to whether the deceased was carried

trom the car Or" walked tor himself supported on •ither side, and

whether he was not refusing to aet out or the ear or was puttin&

on an act. In cross-examination by Mr. ~entzel it wa~ apparent

the witness tor reasons best known to himself was attempting to

water down his ori&inal statement: and we are or the view that ____ .._ ________ ··- ---·-

-----------·- ----- ·--- -·

.. . . 0

tl\is more closely approximnt .. ~ e • ., t.h·~ t.rut.h <1f rh.! •n . .r 1 .,r. ·rho!!rl!

is also 1:he subaequen t unsil t i. s fete tnr i 1 Jl exj.):"' i nett n 11 or:- 1 i •H: •> r·

1:he state111ent after it wa~ sworn.

~he sta1:ement of '11!0 Masingw.aJ.a F.:<hi.bi t 'c; bef•,rl! tn.~ Cvur: i :: tv :.:-:,• a

effect tl\at about Jlp.m. that ni~ht when reporting on duty hi! w~s

requested by Captain Ramalijela to provid~ assistan~e. and the

deceased who was unable to walk, wn~ r~rri~d rr~m Lhe c~r into the

prison-.

· Th• state•ent ot Conat. Kalushi t:xhibi t 7 was adherred to in ~ourt

and th• evid•ncte· ot the witness ia to t.he ~tffet:t t:h:\t hnvtng only

just co•• on duty at .tt .15 p.111. that ni~ht h~t- was required hy

Captain Ra•ali&ela to assist in carryin~ thl! dP.eeas~td, who was

unable to stand, to his cell. The decl!aBI!d wu~ said by Captain

Ramali&ela to be drunk and appeared ~u. His eyl!s rem~ined ~hut

and he asked only tor his shirt whirh had been l~ft in the e~r.

Acc~ptin& this evidence~- we do witn.tn~ r~sl!rvations made n~

reaards that ot Lt. Netshi.vhunaululu, it foltuws that thl! c1P.••e3Sotd

when returned to prison shortly betnre midnight nn the ni~ht or thl!

llth/12~h lfove•ber, 1981 was in a condit.ton v11rlouttlY d~!H'r!tl~d

as drunk or tired and exhausted and unonle to ,.r.;,nd or walk a..,. ltimsel~. Ve ar!t satis~led th:.t 11t thht .ct:.ae the tt.~<'<H1>4~td l'::t·l in

tact already sustained and was sufrerinc rrom tn~ lnJuri~>4 a~ a

result ot whi~h he subsequently died lat~r that ni&ht. The

poaition in the result is that he eithl!r cam~ hy thl!~e lnjuri~~~ 3~

alle&ed b7 Captain Raaali&ela and 0/Sat. M~n&R~a ~r nt thdir hnnd~

since nobody else is alleaed to be involved.

On this question concernina the credibillty or the two offirer~ c~r.­

cerned it is unnecessary to canvalls thatir state111entsor evidene~t in

detail t'or we are satist'ied beyond any doubt at al~ that they are net

to be believed. Both were extensively cross-examined by both

~r. Mancktelow and Mr. Wentzel and bot.h were thorouahly dl$creJ!ted ~s

unt'easible and evasive. We have reached our c5nclusion in Lhis

reaard .!l!l!t.!.!.!.! on the rollowina ha~i:t

(!) There are conflicts Ll,etween l:ht!ir oril(inal ,H:ltem<!nt:B nnrt

evidence, and between themc•!vl!~.

·.:..- ..

\

.. ..

I

. .

(2) '!'he explanation of' the alle;ed --~··•uh• l'lnd d.,mon • .rrution or how

the deceaaed suatained his injuries l~ cu•pletely ••nconvincina

and in no way explains the totality or the deceaA~d'N injurie~.

Both Captain Ra•aliaeLa and 0/S~t. Manaaia huve d~li~erately

tried to mislead the Court in this re~ard and it id nut rur th~

Court to now speculate :lS to what mi~ht have happened.

(3) It is apparent troll the loit bonk .. r thn v ... hic·le in <l""'"tiun

Exhibit 14 that it waa not in use at the LiMe h .. ina IOR&ed

a~·5247• on both the 7th ot Auau•t and '4th Nove•ber, '98'.

'l'ttis tettd• to cont'ira th• i•prettRi.on that r.hot Incident or

~h• alleae4 escap• never took plac.t-.

(4) Acceptina as w• do th• •vents and thtt till-. or th• deceased's

return to the pr~son shortly before~idnlght on the niaht in

question, both Captain RAmali&eln ~tnci 0/Sat. MnngAgn are

deaonatrably not telltna the truth in thiA r~~l'lrd.

(5) Acceptina, •oreover,··that thes..- ev"'n':' touk 1.tao't9 ~h..,rt.l.v

betore aidni&h~ then both C:lpt:nin RamnLip.eJ,, anci lo/Silt.. !·~nn~;,r.n

hav• co•pl~tely tailed to expl3in h~w. if on Lhe!r rreNenl

(5)

vera ion the escape- 1 nc i.cten t took 11l4c·~ ber:ween A ~tnd ~·. 111 p, m. ,

they deposited the deceased 4L th~ prl~nn No lon~ after th~ event

since they alleae they went ~trAl&ht to the prl~on therenrter,

stopp1n& only to chanae motor vehiclds. The di~tance ~nvolved

is at most 17k•. and in aLl probability much less.

'!'he probabilities ot the alleaed t!xpedition r.o make indiC'Ation

and its subsequent abortion are·not r.onvincina. Nor is ir.

acceptable that th~ deceased havlna ~uttered the injuries r~und

on post-aortea should exhibit no ~tans thereof, and be cApabLe

ot considerable aaility in allght.in~ from the Land Cruiser.

It 1s a further unsati sfactory feature or the ~roeeedings th4t tht9

submitted by Captnin R:lmaliaela, production initial

ot which

the 14th

and then

written report

was ordered by

July was only

apparently was

the Court, by t.he :tft;rnonn ur Wennesday

tendered on tft-. mnrning or the ,9th July, ,982

not the r~port rer~rren tn in ~vidence.

It appears, m~reover, fro• the evidenr4 or Lt. Nefale, the oriiinal

investiaatina officer in thi$ matter, thnt despite hls requesting

I r I !

l

.. , .. .. ..... _ ....... --·..6....... . ----- ..... -·-- . . .. _ ------.--·

0 '~)

stata•ents fro• Captain Ramaliaela and n'~at. ~an4a~~ a~ lo thft.

circu•stancas ot the deceased's d~ath as ~arly as th~ 'st O~cemhe~.

1981, these ware only torthcomina on t.h<t ?.Ot.h Januar·y. ·C)~?.

In su••ary our conclusions are as folto~

(l) 'l'he deceased when removed r~,.,. r.h., pri:ron r.,r int•~ro~t:~tion

on the· •ornina. ot the t t rtt Nov .. nlho•r, "Itt' w.,~ un i n.iu~,.d, an.t

in apparent aoo4 health.

(2) H• c-e•aine4 in tile- sola custody or Cnptain R:unali.&ela and

0/Scf:. Mancaca ttlrouchout thtt day and until rttturned· to the

pc-iaon shortly before •Ldni&ht that nl&ht . .. (3) When so returned he had sustain~d injuria~ tubsequencty noted

on post-•ort•• examination, r~om whi•·h irjttrie!f•h<t di.~d in tho!

early tlours ot the morninl or thd •.·th Nov~mhPr, •9A' •

. · (4) That these injuries. were not ~u.3tainttd in the mnnner all"lleu

by both Captain Ra•alicala and ·o/Silt., M'angnaa, and that t.h~y

were in the result sustained a• the re~ult or an aRunult nn

hi• by these two officers.

(5) That suctl assault was ln the <'irt:ullutances unlawrul nnd ilK ~turlt

a cr1a1nal ottance by both Captain Ra•allaeta nnd 0/S~r. Manaaa3

L• cthc:losed.

C.J.S.B. STATNER

r.HrF.,- MAGTSTRATP. ..

IN THE SUPREME COURT o·F VENDA

The- Attorney-General.. o'F VendCl.,. who ClS:· su.ctt pt'"O·sec:.utes fo:r . ... .. .. •' .. - __ ,.. ... ---·· ·-

una, on tleha.t..F or ttTe- Ste1ta·,. presents and t.n1"o.r.ttS!.;t:he- Court: ,. i .

j

MUTHUPHEI LUDWIG RAMALIGELA '~. ·.• ·: ... ·~

· and ' ' PHUMUI.A JOSIAS MANGAGA . -· .

•·

·t :•· • . . ~': . . .•.

\whose port:Lcut.ars e1re set: out i.n the· sudiJOns} are- gu.t.Lty oF ~.-

:::1e: cr\.,n&' of MURDER .. ·~.

iN iHAr upon·or Clbout: the 11th of Novembe,..198t:ond. Clt or

n~or S I SASA t.n the ct·Lstrt.ct of THOHOYANDOU. th:·~cc:use¢ dt.a

unLawfuLLy ~nd t.ntentt.onct..Ly kt.l.t.. ! ••

ISAAC TSHIFHI~A MUOFHE

: ' .:o.:e of conv t.ctt.on the se1t.d Attorney-GenerCll. prays 'for

.. : ·Jdgment: ogaLnst: the accused occordl.ng to t.e1ua.

J.J. VISSER

ATTORNEY-GENERAL, VENDA

Exhibit 0

THE STATE ve~sus WUTHUPHEI LUDWIG RAWALIGELA AND PHUMULA JOSIAS WANGAGA.

Sumaa~~ of s~bseantt.a~ facts Ln teras of secet.on 144(3) of ACt 51 of 1q11.

1. Th• deceased OLeo as. a resu~t: of •u~CLC)l.e Lnjur\.es whLch "• rece~vea •hL~se Ln detenc~on Ln ter•• of aect~on 6 of the Tarro~Lsa Act.

2. An Lnqu•at ~to the Oeoth of the deceased .as he~d, •here Lnter oLL4 the aedLco~ evLdence •os fu~Ly Led. The State shoLL tender the record of the ~que&c proceed\.ngs Ln evLden'e at the tr~L.

3. Post~orte• examLnotLons ••~• conducted by 0~. Teteh~er, Prof. Lo~os•r ano Prof. S~pson who sno~L a~L be cal.~ed to gLve evLdenc•·

4. The State coae rest~ on cLrcuastantuaL evLdenca be\.ng that wnen the dec:easeo •os. token fro• the Venda Ceneral. PrLson eorLy on the ao~n\.ng of th• 11th of Nov••o•r nw was un~nj~re~ ono Ln good neol.th, he •os v~s\.bly not ~ the soate eondt.tLon ono ta.· di.ec that r.t.wht ~n h~s C-*"-"-•

5. Tne acc~sed gave on exp~nat~on 05 ~ how tne deceased recet.ved ht.s \.njurLes,- •h~cn exp"-anoti.on the State •L"-L endeavour to prove connoc ~eosonool.y poss~b~~ be true.

6. The State occorcLngl.y a"-~•o•s thot the deceased dLed os o resu~t of on ossou~t by th• t•o accused oct\.ng Ln concert ond thot Ln the perpeerot~on of what ~n• State •L"-~ show wos a vLcLous ond bruta~ o6sou~t they octed •~ndfu~ of the posst.b~e consequences but reck"-ess as to whether deoth ensued or not.·

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South African justice

5

·verdict coilfounds, Venda evidence·

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~ near impossibility. or had no beshatioa ill &Ddiaa mat ·as• Soulb AtriciD coun to a prima facje cue or crimiaal.

coavjcr polic:aaat or usault of assault w beeD _.Nisbed · \heir prisoners. e'lell wbeD abe apillll the NIO J)OiiceiDe'ft. . As · evideDc::e aaaiDst tbem seems 10 far as is mown. it is Ulc oaly t. unauwerable. as been eumplc of a iDquesa iato vividly illusuated ill a trial poltce bnlcality produQD& sucb wbich bas jua cechaded in a \'erdic:L

: Venda. OH of abe four uibal In due- Q»une tbe two · n=serves whicb bave been policemen wen= brou&ht to 1nal

panted the SlllUS of .. indepeD. on a ctwae of murder. Tbe deaf"..swcs by PmoriL trial. presided over b)· vac:~a·s

.Lasl year a reponal maps- Chief Justice. Mr J~ J.P. tra~e's coun ia YeDda. wbich \:an .Jthyn (mother wbitel. lie& jn &be far .JlOft1l.astem lasled iH' II -4ays ad eaded CG'llel' of Tnmsvaal. fotmd tbat last Met with u acqujtal. Mr Tsbifiwa Muotbc. a biack . The judp juaified • this salesmaD aDd .Lu&bcrut Jay \~erdict on me followina prachcr. bad died iD Novem- poundl: lbe-coun could DOl tell ber. 1981. as the result of that there bad been DO SIIUIIIc injuries susWDed at tbe bands between abe polic:cmet'l aDd Mr of two black polic:emeD.. Muofhe: it cowd also not tell

.Mr Muofhc bad been arrested that no injuries were sUStained for questionin& in coanexion durina the suuate: and it .. -.s with a cuerriUa attack On a not ao ofl'em::c for a policeman l'Qiic:e uauon.. aDd lbe two to '"' to SlOP a pnsoner from policelnen .axacemed. CapWn ocaP.aa. Malbuppbei "Ranlaliaeta and CommeDUftl Oft die veRtict a SaJant 'Pbumula Manpp fe- days later. the. Rlutd Dtlll.t· daim.c:t lllat lbey ·bad been .\1/lil - wrote -so as tbas 10 be fon:ed 10. ..resuaia.. their t~ ad of she ~·? but bow ,nsoner . .duriq a aaelllPl 10 can lbat be? Everionc bows --=ape. Tbeir evideDoe was lbat Mr Muofbe SURaiDed "'CCOlftictiq·and confUied. ., .. .uuura.. ~ WMit ....,

The ~ aamiD- he died hal- I ¢• · :.alion sbowed .abal Mr Muotbe n·· t , •· ·W suft'end .-vere iDjuries to ·"lhe: .brain. kidneys. arms. Jep. ~ -dlesL buaocks abdomen ~ 'l'1w local clisuict ~ .fouftd dial clea&b had .,_,_l:lllllld ~ -caeDSi'VC lliC of "J)Iunt .. fln::e'. · w.h~ two

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VENDA: SECURITY POLICEMEN FOUND NOT GUILTY CF ~~~~!~:NG LUTHERAN LAY PREACHER

L ... +lcc-~ Wc.rl"' _I,.f.or ~tiof\ THOHOYANDOU, Venda, South Africa (lwi)-- ~"f· Feb. 1~83

Following a 2 1/2 week trial in the Supreme Court of Venda, two security policemen were found not guilty on February 17,-1983 of having murdered Lutheran lay preacher Isaac Tshifhiwa Muofhe. Mr. Muofhe died November 12, 1981 in his prison cell, less than two days after having been detained by the Security Police. £is post-mortem. examination had revealed. evidence of severe beatings ove-r most of his body.

Mr. Muofhe was one o-r more than 14 persons detained in Venda during the latter part of 1981, in the wake of an October bomb attack on a police station in which two policemen died. Those responsible for the ·attack have not been found.

Amon~those detained were four Lutheran pastors--Dean T.S. Paris~ and Pastors A.M. Mahamba, N. Phaswana, and P.M. Phosiwa. All reported having been badly tortured while in custody. (Por Dean Farisani's account of his treatment, see LVI 6/87, February 10, 1983.) Venda is one of the "independent homeland" areas of South Africa. No other coun­try has recognized its independence. While exact statistics are unavailable, the Lutheran church is regarded as by far the largest religious body among Venda's approximately half-million people.

The State's case against the two accused, Capt. Muthuphei Lud~ig Ramaligela and Sgt. Phumula Josias Mangaga, was based upon circumstantial evidence. The State's witnesses testified that when Mr. Muofhe had been detained in the eve­ning of November 10, 1981·, and when the two accused had taken him from the prison on the morning of November 11, Mr. Muofhe had been in good health. When the two accused returned him to his cell late that night, however, Mr. Muofhe could no longer walk unaided from the car. He died alone in his cell several hours later.

Three doctors examined Mr. Muofhe's body. Their finding was that the body showed severe bruising over the skull, back, chest, scrotum, and buttocks. Mr. Muofhe died as a result of multiple injuries with internal haemorrhage.

In July 1.982, an official inquest was held into Mr. Muofhe' s death. The conclusions of the Chief Magistrate of Venda, ~r. C.J.S.B. Stainer, were that Mr. Muofhe had died of in·juries sustained as ihe result of an unlawful assault on him by the two security policemen. Following this finding, the Venda Attorney General charged the two policemen with murder.

The accused answered the charges against thee br clni=ins that Mr. Muofhe's injuries had been sustained in a strug-gle in the back of a pick-up truck, in which Capt. Ramaligela prevented Mr. Muofhe from jumping o!f the moving truck and thereby escaping. The State's evidence attemp~ee to discred-it this story in two ways. First, pathological evidence . shoved that while it was possible that some of Mr. Muo!he '.s injuries could have taken place in such a struggle, it was highly unlikely that all could have been s·uffe-~ed in this ~way. Second, the pick-up's logbook showed that the vehicle had not been used on the day in question.

The Stat~'s case was severely hampered by an early ruling by the judge, Chief Justice G.P. van Rhyn, that the statements made during the inquest hearing would not be admissible into the criminal trial. As the stories o! the accused differed in significant respects at the two occasions, this ruling inhibited the State's cross-examination of the accused.

The judgment of acquittal was a technical one, stressing the State's burden of proof in a criminal trial. ~he Court, con­sisting of Justice van Rhyn and two assessors, decided that the State had failed to prove three elements of its case be­yond a reasonable doubt: a) that there had been no struggle in the pick-up truck, b) that the deceased had not suffered his injuries during such a struggle, and c) that the deceased had suffered all his injuries at the hands of the accused. The Court commented that it vas not a crime to attempt to prevent a prisoner from escaping. The Court did not comment on the responsibility of the police for the proper treatment of detainees.

The case attracted international interest. Ralston Deffenbaugh, Assistant for Legal and International Affairs of the Lutheran World Federation, attended the last days of the trial as an official observer for the United States Lawyers' Committee for Civil Rights Under Law.

According to the Johannesburg Star (11 March 1982), at least 50 persons have died while in detention under the security laws in South Africa. The Muofhe case was only the second in which the security police had been prosecuted as a result of such a death. In the first such case, that o! the death of Joseph Mdluli in 1976, the policemen were also acquitted.