Blacks find less and less justice in South African courts

On Monday a South African court will be asked to reopen the case of six blacks earlier sentenced to hang for a murder that even the court acknowledges they did not actually commit. The ``Sharpeville 6,'' as the five men and one woman are known, were condemned to die for associating themselves with a mob in 1984 that beat and stoned a black township councilor, then set him ablaze. Since none of them were found directly responsible for the killing, their death sentences set off an international cry for clemency.

What they got instead was a reprieve, based on evidence that a key state witness may have perjured himself. This is why lawyers will try to reopen the case - a case that has come to symbolize what many civil rights experts contend is a crisis of confidence in the judicial system.

The crisis stems from a judiciary that almost uniformly upholds Pretoria's repressive security measures, these experts say, sometimes at the risk of violating basic human rights. The reason: Pretoria has packed the courts with political appointees. And while this has gone on for years, its consequences did not fully emerge until blacks revolted in 1984 against apartheid, Pretoria's segregationist policies.

Because of all the pro-government rulings, blacks are beginning to lose confidence in the judicial system, legal and political analysts maintain. And with frightening implications. Many fear that if blacks become sufficiently frustrated, they will take matters of justice into their own hands - rather than to the courts. Moreover, the judiciary's loss of credibility could create real problems in any future political dispensation.

``I fear for a post-apartheid society,'' says John Dugard, director of the University of Witwatersrand's Center for Applied Legal Studies. ``If this is going to be a decent place, there must be respect for the law and legal institutions. But blacks already have lost respect for law, and now are losing it for institutions.''

Many people, however, still have faith in a legal system they say reflects their concerns. Certain areas, such as commercial law, are widely respected here and abroad. Besides, the system is not monolithic; even critics concede that a number of judges often hand down liberal rulings.

That sort of independence used to permeate much of South Africa's judiciary. That is, until the 1950s, when it angered the government by challenging (unsuccessfully) the removal of mixed-race people from voting rolls. Pretoria responded by increasing the number of judges on the Appeals Court, the highest court, and filling it and others with politically palatable candidates, Mr. Dugard says.

Many here believe the moves account for rulings such as the one handed down last year that allows the government to deny detainees access to outsiders, including an attorney. (Thousands of people have been detained under the government's two-year-old state of emergency.) A civil rights lawyer calls the judgment a ``shockingly disappointing'' failure to protect human rights.

``There have been a spate of decisions like this that have curtailed supervision of the government and maximized its freedom of action to deal with security problems,'' he says.

Critics contend that Pretoria has further eroded faith in the judiciary by overriding court decisions on some politically sensitive issues.

In March, for instance, the Appeals Court ruled that the tiny area of Moutse could not be incorporated into KwaNdebele, a tribal homeland. Soon after the decision, however, the government indicated it was planning to introduce legislation that would allow reincorporation of the area.

(Political analysts say the addition of Moutse's 120,000 residents would make KwaNdebele - which Pretoria wants to turn into a so-called ``independent'' black homeland - more viable.)

The Sharpeville 6 ruling only heightens the growing distrust, contends Edwin Cameron, of the Center for Applied Legal Studies. Mr. Cameron says that under South African law, the death penalty is not mandatory for murder if there are extenuating circumstances. The fact that the defendants had only limited participation in the events surrounding the town councilor's death is grounds enough for extenuation, he says.

Yet the Appeals Court did not address the argument - put forth by the defendants' lawyers - in its decision, Cameron maintains. ``Out of all the disquieting features of the judgment, this is the most shocking,'' he says. ``The omission is bizarre, because it is an elementary principle of justice that all arguments of consequence should be dealt with, especially when people stand to lose their lives.''

Many here interpret the ruling as siding with the government's security crackdown.

But Ralph Zulman, of the general council of the Bar of South Africa, sees it differently. ``To believe that judges here are pawns for implementing government policy simply is not correct. We have an independent judiciary that, in the Sharpeville case, considered the matter and came to an honest conclusion by way of its perception.''

Whatever its outcome, the Sharpeville case is the final straw for Prakesh Diar. Mr. Diar, a lawyer for the six, says he has little hope left for South African justice. ``I've finally come to the conclusion,'' he says wearily, ``that I can't practice law under this system.''