South Africa Verdict Sets Precedent of Leniency

Judith Matloff

Monday, Oct. 14, 1996 | 11:59 a.m.

JOHANNESBURG -- The acquittal of former Defense Minister Magnus Malan of masterminding a 1987 massacre has polarized South Africans and raised the question of whether the judicial system can truly bring justice in apartheid-era cases.

Friday's Supreme Court verdict has frustrated those calling for retribution against the former white minority regime, which is widely recognized as having carried out murders, tortures, and bombings against its mainly black opponents.

The trial of Malan, the most senior apartheid official to land in the dock, and his co-accused former security officials for the murder of 13 people was a landmark case and was seen by many critics as a travesty of justice. Legal sources say it is difficult to prove individual guilt for former apartheid officials who say they were defending the state, which was in a virtual war for its own survival.

The case of Malan and the 19 others originally accused involved the killings in KwaMakhutha township south of Durban. The prosecution's case centered on a plan by security forces to set up hit squads and train members of the Inkatha Freedom Party to kill their African National Congress rivals.

Supreme Court Justice Jan Hugo said there was no evidence Malan and his co-accused had envisaged hit squads and that the training of Inkatha supporters did not constitute a conspiracy to murder.

President Nelson Mandela said citizens should respect the verdict. But ANC rank and file in the embattled Zulu heartland of KwaZulu-Natal province are outraged and accuse provincial Attorney General Tim McNally of not digging deep enough.

Political analysts say the Malan verdict will also have implications for the Truth and Reconciliation Commission (TRC), which was set up as a sort of alternative to mass prosecutions, with the hope of restoring a moral order with a public recording of the past rather than witch hunts.

The body, headed by Nobel Peace Prize laureate Desmond Tutu, aims to uncover apartheid atrocities, offer limited compensation to victims, and give amnesty if perpetrators confess and can prove their misdeeds were politically motivated.

However, many families of victims, including the widow of martyred black activist Steve Biko, claim the commission is too soft on perpetrators.

Commission officials, at least until now, have maintained that the fear of court cases would encourage former apartheid rulers to come and confess at the TRC. The officials say the body might subpoena the 20 people originally put on trial in the Malan case. (Malan did not apply for amnesty by the Commission's Dec. 14 deadline, claiming that he was innocent and had nothing to confess.)

His acquittal comes as the TRC, which has mainly heard the accounts of thousands of victims over the past 10 months, moves into a new phase of persuading perpetrators to confess.

Commission deputy chairman Alex Boraine was heartened by the recent decision by five senior retired policemen to approach the Commission with amnesty applications without seeking permission from their superiors.

Calling the move a "remarkable breakthrough," he predicted it would open a flood of revelations about previously unsolved murders.