Statement by the Honourable Minister of Justice and Correctional Services, Adv Michael Masutha

XI International Meeting of Justice Ministers on “A World without Death Penalty” 28-29 November, Rome, Italy

Statement by the Honourable Minister of Justice and Correctional Services, Adv Michael Masutha on the XI International Meeting of Justice Ministers on “A World without Death Penalty” 28-29 November, Rome, Italy  

Your Excellences Distinguished Ministers Distinguished guests Members of the Community of Sant’Egidio Ladies and gentlemen  

On 18 October 1985, a thirty year old poet and factory worker named Benjamin Moloise was led to the Gallows in what was then called Pretoria Central Prison, now renamed Kgosi Mampuru Correctional Services Facility. Moloise, who had links with the underground liberation movement, had been convicted two years earlier for the 1982 fatal shooting of a notorious security policeman. Throughout the trial Moloise denied that he had conducted the assassination and asserted that statements he had made to a magistrate and police after his arrest were made under duress.

His denial of guilt was supported by the exiled liberation movement, the African National Congress, who vehemently asserted that Moloise had nothing to do with the killing, stating: “We hereby wish to state categorically and unequivocally that Moloise was wrongfully arrested and falsely charged and convicted as he had absolutely nothing to do with the execution of Selepe at any stage.”

But all protestations failed. His appeal was turned down by the Appeal Court. Lawyers managed to obtain a brief stay of execution on the basis of a new petition. This too ultimately failed. The British government and the European Economic Community called for a reprieve, in vain. His final petition for clemency to State President PW Botha was turned down.

Benjamin Moloise was hanged on 18 October 1985.

Moloise’s denial of guilt was confirmed some thirteen years later, when those involved in the assassination applied for amnesty from the Truth and Reconciliation Commission, the TRC. The South African Security Police, however, already knew who they were. One of their own informers had already told them back in 1982 who had conducted the assassination.

Benjamin Moloise’s story serves as a painful illustration of the fallible but irreversible nature of capital punishment. Wrongful convictions do take place. We can never ignore the possibility of error and miscarriage of justice made permanent by the imposition of the death penalty.

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Benjamin Moloise was one of two young men hanged that day in October 1985. This was a much smaller number than usual as the gallows in South Africa was built to hang seven persons at a time. Seven footprints were painted on a single large trapdoor, indicating where each of the condemned should stand below seven nooses. In the days before their execution, their weight, height and neck circumference would be measured by the prison authorities so as to craft an individualised noose. On occasion, more than seven were hanged on a single day. Twenty two men were hanged on a single day in 1957. Similarly, twelve men were hanged on 3 July 1964 in two batches, the first at 6 am and the second group at 6.45 am. Among those hanged that day were five members of a single family.

South Africa had one of the highest rates of judicial execution in the world. Between 1960 and 1989, South African executed just over three thousand prisoners, an average of roughly one hundred a year. The number of executions peaked in 1987 with one hundred and sixty five persons hanged that year. The application of the death penalty in South Africa bears the heavy marks of racial apartheid, with poor black men forming the overwhelming majority of those hanged. A survey of those hanged between 1960 and 1977 shows that most had an average of three years of schooling while nearly half had had no schooling at all. Only one, John Harris, the only white political prisoner to be hanged, had a university degree.

The range of offences for which the death penalty could be imposed was extensive. It included not only murder but also rape, housebreaking and robbery or attempted robbery with aggravating circumstances. It also included explicitly political offences of sabotage, training abroad to further the aims of communism, terrorism and treason.

Between 1960 and 1975, at least sixty five individuals were hanged for what could be termed ‘property crimes’ of robbery or housebreaking with aggravating circumstances, which might simply be prior convictions. By way of example, two men were hanged in 1959 for robbery with aggravating circumstances as they had used a weapon in the commission of the crime. The judge stated that one of those convicted was a policeman and it was expected of him to maintain law and order. He further stated that the second man’s record “was so bad that the public would be better off if he were removed from society.” Hangings for aggravated robbery were still taking place as late as 1980.

The time interval between the imposition of the death sentence and execution was very short. Prisoners were usually hanged within three to six months after being condemned, although by the 1980s this had increased to roughly a year. Only in exceptional cases did the period extend beyond a year.

The bodies of the hanged were not given to their families. Instead, in a form of punishment beyond death, their bodies remained the property of the state. The families could also not see the body after execution, which was immediately sealed

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in a rudimentary coffin made in the local prison workshop. Those hanged were buried within hours of their execution in pauper graves in racially segregated municipal cemeteries. The families were not allowed to witness the burial. Many of the executed were buried three to a grave in pauper fields, particularly prior to the 1980s.

At least one hundred and thirty of those executed in the period from 1960 to 1989 were political prisoners convicted of offences committed in a political context. These included both ordinary civilians as well as trained members of the liberation movements. These political prisoners were executed and buried alongside those hanged for criminal offences.

South Africa suspended the death penalty in 1990. It was finally abolished in June 1996 when the Constitutional Court ruled, in the case of State versus Makwanyane, that the imposition of the death penalty was incompatible with the right to life as enshrined in the Bill of Rights in our Constitution.

South Africa has not only abolished the death penalty, but has taken measures to recognise and commemorate the hanged. A museum is presently being constructed in the prison building housing the former gallows, which constitutes a devastating indictment of the practice of capital punishment. Future visitors will see the measuring room where neck circumferences, weight and height of the condemned were noted. They will climb the fifty two steps to the execution chamber where nearly three thousand persons, mostly young black Africans, were put to death by the state. They will see the tiled pit where the urine, blood and faeces of the hanged dripped down, and the large black hoses to wash down their naked bodies. We believe it will be the first such capital punishment memorial museum in the world and we invite all those present today to visit it on its completion. I assure you it is an experience that will mark you permanently and strengthen your resolve to abolish the death penalty worldwide.

The South African Government also launched the Gallows Exhumation Project on 23 March 2016, a project driven by my Ministry. This aims to trace and recover the remains of the political prisoners who were judicially executed between 1960 and 1989, and to provide some form of reparation and redress to their families. A careful process of research, investigation and burial site verification was conducted and the first exhumations were conducted in December 2016.

The exhumations are still ongoing. They are conducted in small groups and representatives of the families are brought from their home areas in different parts of the country to witness the process. They are taken through the Gallows itself where the museum is presently being constructed so that they are able to see the place where their loved one spent his final days and hours, and to perform rituals and prayers in the very execution chamber where he was hanged. The families are also taken to visit Freedom Park, the premier national government memorial site to the

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struggle for freedom and democracy, where the Wall of Remembrance includes the names of the hanged political prisoners. Lastly, they visit the burial site and watch the Missing Persons Task Team conduct the exhumation of the remains of their loved ones. The Missing Persons Task Team is a government investigation and forensic unit established after the Truth and Reconciliation Commission to trace those who disappeared in political circumstances.

The remains are thereafter handed over to the families at special official government ceremonies in their home provinces presided over by myself, in which the contribution and sacrifice of the executed political prisoners is recognised. Dignified reburials by the families can then take place at the place of their choosing.

To date, the remains of fifty nine of the hanged political prisoners have been recovered. It is anticipated that the Gallows Exhumation Project will be finalised during 2019. We plan to prepare a photographic exhibition of the process which will be shared with you in future.

South Africa has thus not only abolished the death penalty but taken significant steps to highlight its historically brutal, racist and political application, and to ensure that the affected families of hanged political prisoners are recognised and supported.

We commit ourselves to ensuring that this matter is on Africa’s agenda. Many of South Africa’s neighbouring countries still impose the death penalty, although it is frequently commuted to imprisonment, and this poses challenges in cases of extradition. Our Extradition Act (Act No.67 of 1962) makes no mention of the death penalty as a ground for refusal of extradition. However, an exclusionary clause occurs in certain of the Republic’s bilateral treaties, for example it is stated that when the offence in respect of which extradition is sought is punishable by death under the laws of the requesting state and is not punishable by death under the law in the requested state, the requested state may refuse extradition, unless the requesting state provides assurance that the death penalty will not be imposed, or if imposed, will not be carried out. South Africa therefore declines to surrender a person to a foreign jurisdiction where the death penalty is a sanctioned form of punishment and where, in the instance of the requested extradition, there is a probability that an order for execution may be imposed as a penalty.

In conclusion, once again, South Africa would like to commend the Community of Sant’Egidio for its relentless activism in advocating for the universal abolition of capital punishment and commitment to the defence of human rights.

Lastly, we would like to share with you some visual images of the Gallows Exhumation Project.

I thank you.