Table Talk

Judge Richard Goldstone hopes Zondo commission will shake off shackles of corruption

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

02 December 2018 - 00:00 By JONATHAN ANCER

Judge Richard Goldstone is among the world's most widely admired judges. At home, he served on the Supreme Court and in the Appellate Division, where he chiselled away at apartheid laws, and was a member of our first Constitutional Court.
He has led fact-finding commissions all over the world; was the former chief war-crimes prosecutor for the UN; and his Goldstone commission is the gold standard of inquiries. He has been on hit lists and a target of smear campaigns; but the one thing I didn't know about the 80-year-old judge is that he's the spitting image of Kevin Spacey.
His Lordship Mr Justice Goldstone, regarded as one of the most trusted people in SA, chuckles softly.
"I don't see it myself, but people have said I resemble him," he says. He used to like the comparison until the abuse allegations against Spacey broke and the disgraced actor's house of cards came crashing down.
Goldstone is closely following the Zondo commission of inquiry into state capture, which has echoes of the watershed inquiry he led 27 years ago.
The early 1990s were politically tense times. The country teetered on the edge of a cliff. Negotiations kept stalling in the wake of violence, assassinations, intimidation and "third force" hit squads. It was a time of accusations and counter-accusations.
Goldstone's awkwardly named fact-finding inquiry - the Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation - was established as part of a peace accord brokered in September 1991. It needed someone to head it. The parties involved in the fraught talks couldn't agree on anything so it says a lot about Goldstone's integrity and independence that they unanimously approved of him.
There was a lot at stake and the commission enabled negotiations to remain on course. There's a lot at stake now and Goldstone says deputy chief justice Raymond Zondo is doing an excellent job encouraging evidence to come out and bringing facts to light, implicating the usual suspects.
The Goldstone commission helped SA break from its apartheid shackles; and he hopes the Zondo commission will help the country shake off the shackles of corruption.
"My sincere hope is the prosecuting authority will take it up and people who have committed corruption on this level end up behind bars," he says.
Speaking of bars, Goldstone joined the bar in 1962 after graduating with an LLB from Wits University, where he had served as president of the student representative council and was active in anti-apartheid student politics. When he was a child he had spent a lot of time with his maternal grandfather, who decided his grandson was cut out to be a lawyer - and that sealed Goldstone's fate.
He built a thriving practice as a commercial lawyer, becoming a senior counsel. He was asked to sit on the bench as an acting judge for six weeks. Then he was approached to do a six-month stint. The difficult decision came when he was offered a permanent position and had to face a challenge of conscience: would he join the apartheid judiciary?
The Legal Resources Centre wanted sympathetic judges and encouraged him to accept. They reckoned that if he didn't, a less sympathetic judge would.
"My role model was John Didcott, who was on the bench. He had produced some wonderful judgments that criticised racial discrimination and various other apartheid laws, and it seemed to me that was a sensible way to go," Goldstone says.
In 1980 he became the youngest Supreme Court judge in SA at the time. The job came with a heavy price, though: he would have to enforce laws and impose sentences he didn't like - such as the death penalty, which he did twice.
He was already on the bench when a famous debate raged about whether liberals should accept judgeships. Law professor Raymond Wacks argued they shouldn't because the laws they were required to enforce were morally indefensible. Law professor John Dugard believed it was better to have a moral judge finding a way through the unjust laws.
This is what Goldstone did. One particular case in 1981, State v Govender, which he heard on appeal, had significant consequences. Govender, an Indian woman, appeared before him. Her "crime" was that she was living in a white suburb in Johannesburg. The Group Areas Act of that era said anyone found guilty of contravening it "may be evicted", and ejection orders followed automatically. When the case came before Goldstone, his eye fell on the word "may".
"The act said 'may' be evicted, not 'shall' be evicted. It seemed to me that magistrates had a judicial discretion to exercise and for 31 years - from 1950 to 1981 - they had been acting incorrectly."
Goldstone ruled that after a guilty finding there should be a separate hearing at which all relevant circumstances, including alternative accommodation, should be considered. He set aside Govender's eviction order. It was a significant blow to the government because it contributed substantially to the Group Areas Act becoming unenforceable.
There were other consequences of that ruling.
"Gaye Derby-Lewis, a member of parliament for the Conservative Party, asked [then prime minister] PW Botha why the government was allowing thousands of black people to come into white areas," Goldstone says.
"Botha's disingenuous response was: 'Ask judge Goldstone.'"
A decade later Derby-Lewis's husband Clive was found guilty, along with Janusz Walus, of the assassination of SACP leader Chris Hani. During the investigation police uncovered a hit list of potential targets, with Nelson Mandela at the top, Hani at no 3, and, at no 5, Goldstone.
Gaye Derby-Lewis told the Truth and Reconciliation Commission (TRC) that Goldstone's name appeared on the list because he had allowed "blacks to come into Hillbrow".
Goldstone had also received death threats from rightwingers for criticising the actions of the police in the 1990 Sebokeng massacre. Police had opened fire on a crowd of 50,000 protesters marching from Sebokeng to Vereeniging to present grievances.
When the shooting stopped, 14 people were dead and hundreds more wounded. Goldstone headed an inquiry into the massacre and recommended the police be prosecuted for murder and culpable homicide.
The Sebokeng inquiry set the stage for the Goldstone commission. Goldstone knew this commission wouldn't succeed if he didn't keep everyone on board and have the full support of all the parties.
According to the law, he had to give reports to the then president, FW de Klerk.
"The first major report was issued with a government spin alleging that we had found that the violence was caused by the ANC and Inkatha rivalry, which was a misrepresentation of the report," says Goldstone.
Mandela picked this up and castigated the report and Goldstone.
As far as Goldstone was concerned this signalled the end of the commission. He changed his mind a few hours later when his phone rang. It was Mandela.
"Mandela said he was phoning for two reasons: the first is to apologise. He said that after reading the report he agreed with it. The second reason was to say he had called a press conference and intended to apologise to me.
"He said, 'May I say you have accepted my apology?' He knew that without the public apology the commission would be harmed - and he didn't want that."
After that Goldstone insisted the reports go out within 24 hours and without a government statement.
One of the main questions of the commission was whether a third force existed, which the National Party had always denied. The commission found it did and the lead-up to going public with that information was a dangerous time for Goldstone.
"The police tried to find information to blackmail me," he says. "They broke into my apartment and went through all my papers and documents, and my tax returns for the previous 20 years - but there was nothing they could find."
In addition to exposing the third force, which pulled the rug from under the feet of the Nats, the commission issued 47 reports, carried out hundreds of investigations and triggered the initiation of 16 prosecutions.
Goldstone, remarked Archbishop Emeritus Desmond Tutu, had made an indispensable contribution to the country's transition to democracy. Just as the Sebokeng inquiry prepared the ground for the Goldstone commission, the Goldstone commission set the stage for Tutu's TRC.
Goldstone's work in investigating violence led to him being asked to serve as the first chief prosecutor of the UN's International Criminal Tribunal for the former Yugoslavia and for Rwanda. He signed the tribunal's first indictments, including those against Radovan Karadzic and Ratko Mladic for the Srebrenica genocide and other human rights violations in Bosnia and Herzegovina.
He suffered the horrors second-hand and the real heroes and heroines were the investigators, who met the victims, sometimes going into war zones.
"It was harrowing enough to read what they had been collecting," he says.
"It was difficult to accept that human beings can treat other human beings with such unbelievable cruelty. But this has happened throughout history - the Holocaust, apartheid, and the death camps and terrible use of mass rape as a form of warfare in Bosnia and Herzegovina."
He had sleepless nights. The big numbers shock but don't numb; it was the personal cases that got to him.
Goldstone returned to SA and served as a justice of the Constitutional Court from 1994 to 2003.
"My main achievement and pride was being a member of the first Constitutional Court - that was a highlight of my career. It was very exhilarating. It was a symbol of a new era."
He has wonderful memories of his stint on the Constitutional Court, and painful memories of another major task - heading the Gaza commission.
In 2009, Goldstone was asked to lead a fact-finding mission created by the UN Human Rights Council to investigate violations related to the Gaza conflict.
It was always going to be contentious. He accepted because he felt it would be hypocritical to have agreed to investigate crimes in SA, the former Yugoslavia, and Rwanda, and to refuse to investigate the Middle East just because he is Jewish.
The mission concluded that Israel and Hamas had both committed violations of international human rights law and international humanitarian law, which sparked outrage in Israel and the initiation of a personal campaign against Goldstone, including a threat to prevent him from attending his grandson's bar mitzvah.
A smear campaign was launched, calling him a "Nat boetie" and accusing him of having been an apartheid stooge who sentenced people to death.
He responded that the two people whom he had condemned to death in the 1980s had committed murders gratuitously during armed robberies. "In the absence of extenuating circumstances the imposition of the death sentence was mandatory. My two assessors and I could find no extenuating circumstances in those two cases."
He had expected criticism but not venomous personal attacks. Two years later, he amended the report after an internal Israeli military investigation led him to accept that it was not Israel's policy to intentionally target civilians.
It was a painful episode and he doesn't like talking about it. "My main regret is that we didn't get any co-operation from the Israeli government. I think we might have had a different outcome if we had."
The controversy raged but his legacy - as someone who has stood for justice and supported human rights for all people - remains intact.
The wheels of justice keep turning and Goldstone hasn't slowed down. He's on the board of Physicians for Human Rights (among other boards); is a trustee of the South African Student Solidarity Foundation for Education, a fundraising initiative by former student leaders to help current students in need; and spends considerable time working with the Africa Group for Justice and Accountability.
He is also fighting grand corruption with a US district judge in Boston, Mark Wolf. They are working on a project called Triple I, Integrity Initiatives International, which aims to pave the way for an international anti-corruption court that functions like the International Criminal Court - countries might fail to investigate their own kleptocrats but the international court has jurisdiction.
The past 80 years have been busy and eventful and he's looking forward to reading The Trials of Richard Goldstone, a biography by Daniel Terris, to be published this month. "I'm sure I'll learn things about myself I had forgotten," he says...

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