No one should have to bump into De Kock in the supermarket

In The Difficulty with De Kock, attorney Clare Ballard of the Penal Reform Programme at Lawyers for Human Rights makes the case against the decision by Minister of Justice and Correctional Services Michael Masutha to overrule the National Council for Correctional Services and the Correctional Supervision and Parole Board’s (CSPB) recommendation that De Kock (a “model prisoner”) be released on parole.

Ballard points out that the law establishing the rights of victims – who don’t want De Kock released – had not yet come into effect at the time of the handing down of De Kock’s conviction and sentencing, rendering it inapplicable to his parole determination. Lucky old De Kock.

However, she concedes, “permitting the hearing of submissions by those affected by De Kock’s crimes is not inconsistent with parole determinations generally”.

I think one has to be very careful listening to the wishes of victims. The lust for revenge can be disproportionate and unreasonable. I’m quite sure some victims of crimes would happily see their perpetrators slowly tortured to death.

I also believe most criminals can reform their ways and people should generally be given a second chance. I wholeheartedly support restorative justice. Our system of incarceration is a social catastrophe.

But De Kock is in that select category of criminals who should be kept in jail. Enough of – though far from all – the facts about his sadistic murders are known; crimes that are so appalling he is one man who deserves to be set apart from the rest of us. Nobody should ever have to bump into De Kock in the supermarket.

Masutha said the victims had not consented. His victims are nothing less than the vast majority of people in South Africa, and the minister is correct to take this into account.

Ballard writes, “I find it hard to believe that De Kock’s victims were unaware that his parole date was approaching. The media certainly did.”

Here, most uncomfortably, she is in danger of blaming the victims again. They didn’t make submissions in time, so tough?

Nor is this a case of the mob baying for blood. De Kock was given a fair trial and an appropriate sentence.

Ballard argues first on a legal technicality (the law at the time of sentencing in 1996), and then on practicalities and “the administrative burden of the state”. Neither of these arguments are strong enough for us to lose sight of the particular, in this case De Kock.

Clearly, Ballard holds no brief for De Kock, but thinking as a lawyer she is concerned with the principle and precedent of the matter.

Ballard is correct that principles are most meaningful when they are put to the severest test. This is why I oppose the death penalty even in the case of De Kock, a man spared his life by the very regime he had done everything in his power to suppress. But should he now also be spared life imprisonment too?

Like Ballard, I am generally uneasy with high-handed executive control – the minister overruling the bodies he should be listening to. Yet in this case, the minister has acted as check and a balance. The decision by those bodies that recommended De Kock get parole and how they arrived at this decision should be placed under public scrutiny.

Ballard then makes the argument that De Kock is the only former apartheid official to have been punished criminally for his actions. If anything, this is a case to keep him in jail. The NPA made such a hash of its early prosecutions that the likes of Magnus Malan and Wouter Basson were never brought to book. Far too many – in the hundreds – of apartheid’s murderers have got away scot-free, not even having gone to the TRC, so why should the one where justice was done be let off now?

Another commonly made argument is that he is the “fall guy” for his superiors. There is some truth in this, but it mischaracterises the nature of his crimes. Much of what he did, he did on his own initiative and he did it gleefully.

Another tired argument is that we should be grateful to De Kock for exposing (some) of the truth. Nothing like a plea-bargain was ever entered into with De Kock. His motives were entirely selfish. He is not exactly a whistleblower who uncovered state secrets in the public interest. He saw the writing on the wall and he hoped he’d get away with his crimes by betraying his fellow apartheid thugs.

And if we generously assume it was a matter of his own conscience, then this is no better an argument for him serving less than 20 years.

Even more absurd are comparisons made with the early releases of Selebi and Shaik. There is no comparison here.

It’s bad enough that white South Africa conveniently washed it hands of De Kock, but those hands are certainly not coming clean by arguing for his release.

Furthermore, unlike Max du Preez, I am unconvinced that De Kock has made adequate disclosure. I suspect he has played a very astute game. From the day he was sentenced, he has worked tirelessly, strategically, and it seems effectively, to secure his release. This includes his media campaign and his interviews with psychologist Pumla Gobodo-Madikizela which resulted in the book and the play A Human Being Died that Night, subtitled A Story of Forgiveness.

Ballard’s concluding argument can also be inverted. She maintains correctly that the large-scale community-based dialogue that was meant to follow on from the TRC as a form of healing and rehabilitation has never happened. But her conclusion, which seems to be that government is keeping De Kock (“the state’s prized apartheid criminal”) in jail as a way of diverting from its said failures, doesn’t follow.

The very absence of following through with the TRC’s recommendations and the failure to successfully prosecute apartheid’s criminals makes releasing De Kock all the more unthinkable. His release can only damage that process and cause further hurt to his surviving victims.

De Kock is humanely treated and at only 65 years of age not yet deserving of special concessions to age and frailty. His release would be yet another miscarriage of justice in the post-apartheid period. Government failures should not blind us to this particular case.

Meersman is the author of Reports before Daybreak and co-editor of GroundUp.

This article is a response to The Difficulty with De Kock.