SA ex-chief justice defends Goldstone

Man who headed Cast Lead c'tee reportedly served as apartheid judge.

By HAVIV RETTIG GUR
Goldstone in Gaza 311 ap (photo credit: ASSOCIATED PRESS)
Goldstone in Gaza 311 ap
(photo credit: ASSOCIATED PRESS)
Former South African chief justice Arthur Chaskalson defended former judge Richard Goldstone on Wednesday from criticism in Israel’s largest newspaper that as a judge in the 1980s, he willingly enforced the racial laws of the apartheid regime.
In a report published on Wednesday in Yediot Aharonot, which announced a larger feature that would be published in the paper’s Friday edition, journalists Techiya Barak and Tzadok Yehezkeli presented judicial rulings made by Goldstone that, they said, showed a willing and uncritical support for the race-based legislation of apartheid.
Furthermore, they wrote, Goldstone either ordered or sanctioned as an appellate judge at least 28 death penalty executions, and wrote in support of the practice in his judicial rulings.
“That is absolute nonsense,” Chaskalson told The Jerusalem Post by phone from Johannesburg. Goldstone “was never part of the apartheid regime.”
During the 1980s, at the height of apartheid’s most violent and brutal period, “there was a whole discourse about judges staying on the bench,” Chaskalson explained. Some anti-apartheid voices supported the move, some opposed.
Specifically, the reporters cited a ruling from 1981 in which Goldstone, then a judge on the Transvaal Supreme Court, acquitted four policemen who had conducted an illegal night raid on the home of a white woman because she was suspected of having had sexual relations with a non-white person – a crime under the apartheid statutes of the time.
“He acquitted the four officers for technical reasons, despite ruling that they had illegally entered the home. Yet in doing so, he did not refer to the law itself as racist or problematic. In fact, he simply enforced a racial law,” said Yehezkeli.
Goldstone could not be reached for comment for this article because he was traveling. However, he had given a response to Barak and Yehezkeli in which he said that the officers’ appeal had been upheld not because he supported the racist laws, but because there had been legal mistakes made in the case.
“It is clear, however, from the portion of the judgment [cited by the reporters], that [the other presiding judge] and I found that the entry of the police officers had been unjustified and unlawful. Their appeal was upheld on the technical grounds that the legal provision under which they were charged did not create a criminal offense,” Goldstone wrote.
Still, said Yehezkeli, “we’re saying that it was Goldstone’s choice to be a judge under apartheid, and because of this decision, he ended up doing things that served the apartheid laws.”
Others disagree.
Jules Browde, a founding member of Lawyers for Human Rights and a campaigner against apartheid during the period in question, insisted that “you can’t draw any clear adverse inference from the fact that [Goldstone] became a judge [under apartheid]. In fact, while he sat as a judge, he gave judgments that were very progressive.”
Browde himself refused to become a judge, “but there were others of real caliber who accepted it because they felt they could do good as judges, rather than having judges of extreme right-wing views.”
Goldstone was such a judge, he said.
Chaskalson, too, insisted that Goldstone “was regarded by everyone who knew him as a liberal judge. Many people felt it was better to have an honest judge on the bench than another kind.”
The article also challenges Goldstone’s record on death penalty convictions, stating that “the man now campaigning for adherence to human rights [law] ordered the executions of at least 28 black defendants while serving as a judge in South Africa during the apartheid era. He speaks often about the death penalty, but has not yet publicly admitted his own deeds.”
Yehezkeli points to his March 1993 ruling in the case of Purpose Bongani Khumalo, in which Goldstone seemingly justified the death penalty as a deterrent.
Khumalo had killed and robbed a restaurant owner in Johannesburg who had fired him. Despite saying that Khumalo was only 23 years old and could be rehabilitated, Goldstone wrote that the outrage of the surrounding community “is a relevant factor in the imposition of a proper sentence... A proper sentence should act as a deterrent to others who may be tempted to murder or rob defenseless and innocent people... The murder calls for the maximum sentence allowed by the law. It follows in my opinion that on that account the only proper sentence is the death sentence.”
“Here he expressed outright support for the death sentence, and even brought public opinion as a factor in imposing it,” Yehezkeli said.
Goldstone is quoted in the Yediot article as saying that he “always opposed the death penalty, but I was part of a system that had such a punishment.”
Chaskalson concurred: “The death sentence was compulsory for murder. There were no extenuating circumstances. If you got [a ruling of murder], you were compelled by law to impose it.”
Chaskalson added that he disagreed vehemently with the image created by the reporters, insisting that Goldstone had used his judicial powers to mitigate the abuses of the apartheid regime.
As an example, he cited the 1986 Govendor case, which challenged the Group Areas Act, a piece of legislation that attempted to enforce separate living areas for whites and non-whites.
The case came before Goldstone in the midst of the period of emergency laws imposed to enforce apartheid against growing protests.
While he could not overturn the legislation, Goldstone ruled that ejecting non-whites deemed to be living in the areas proscribed to them by law was not compulsory, but at the discretion of the court. He added that exercising this discretion should take place only after the court had considered the personal harm that would come to the evicted party and the existence of alternative living arrangements. He placed the burden of proof for these considerations on the state.
In effect, “the state’s campaign to enforce the Group Areas Act in Johannesburg ground to a halt,” Chaskalson said. “Many of those of the ‘wrong color’ remained in the premises they were occupying.”
Chaskalson rejected the Yediot report as “scandalous” for its failure to capture the context of the times.
“It’s one thing to disagree with [Goldstone’s Gaza] report, but quite another to go after him personally like this,” he said.
Yehezkeli believes the record speaks for itself.
“It may be true that judge Goldstone was more willing to listen [todefendants in race-based cases] than some other judges. But as a judgehe had to work for the apartheid laws. You can’t get away from it. Evenif he was opposed to the laws of South Africa, he agreed to serve them.”
Among the responses Goldstone submitted to the two reporters, Goldstonewrote, “I was always committed to safeguarding equality andnondiscrimination, as well as the law. Sometimes these principlesclashed in very complex ways.”