South Africa: 25 Lives in the Balance. Controversial trial could further erode black trust in judicial system. WAS IT PREMEDITATED MURDER?

By , Staff writer of The Christian Science Monitor

EARLY every weekday morning, an unlikely parade winds its way through this one-horse town on the edge of the Kalahari Desert. It's a long convoy of police vans crammed with 26 black prisoners singing freedom songs at the top of their lungs. The procession passes the shops that won't employ blacks, the restaurants that won't serve them, and the swimming pools that won't allow them entry. It stops at a small white courthouse.

There the prisoners pile out - still singing - and are marched into a courtroom to stand trial for the killing of a policeman. Twenty-five of them, in fact, have been found guilty of murder for associating themselves with a mob in 1985 that clubbed the policeman to death, then set his body ablaze.

Although most didn't participate in the actual killing, they were convicted of having ``common purpose'' with the murderers. It's a concept human rights lawyers and other experts contend is extreme. They argue that, far from acting in an organized fashion, the accused exploded in a moment of anger - the bottled-up frustration of living in a place where apartheid, with all its deprivation and humiliation, still is strictly enforced.

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And the stakes couldn't be higher: If the defendants' lawyers don't succeed in convincing the court, the Upington 25 - as they are known - all could go to the gallows. Moreover, legal experts fear the trial's magnitude could further erode black trust in a judicial system increasingly seen as politically biased.

``How can 25 people kill one person?'' asks the Rev. Aubrey Bierkus, a minister from a nearby colored (mixed-race) township. ``It's impossible. Most of them just threw stones at his house.''

Until 1985, Upington (pop. 60,000) pretty much escaped the periodic bouts of black unrest that convulsed other parts of the country. This, despite living conditions in Paballelo, Upington's black township. Few of the matchbox-sized houses have electricity; raw sewage runs in the dirt roads. Only nine of 10,000 residents have a college education. About 7 percent have high school diplomas.

Unemployment is figured at about 30 percent - twice the official rate for blacks in other townships. That's because whites in town typically prefer to hire coloreds. (Having a job doesn't mean extra perks, however. Come noon, when the heat rises in shimmery, undulating waves off the street, black workers - who aren't allowed in restaurants - crouch along the curb, eating their lunches.)

The work situation is so bad ``I don't even bother looking for a job anymore,'' says a young man in burgundy running shorts who graduated from high school last year. ``Whites don't want you if you're from the township.''

AGAINST this backdrop, things started to heat up in November 1985. (Black areas in the rest of South Africa had been blowing up since 1984.) On Nov. 13, about 3,000 people gathered at a dusty, rock-strewn soccer field in Paballelo, ostensibly to discuss problems of high rents for housing. The police moved in, gave them 10 minutes to disperse, and then fired tear-gas into the crowd.

Many on the field streamed down Pilane Street to escape the gas; some stopped in front of No. 405, a tiny white house with orange trim owned by policeman Lucas Sethwala. When they started stoning the house, Mr. Sethwala fired into the group with a rifle, wounding a small child. He then tried to escape, but was caught by a member of the group and hit over the head with the butt of his rifle. His body was assaulted and set afire.

The court ruled that only four of the Upington 25 actually perpetrated Sethwala's murder. By throwing stones, however, the others ``got him out of his home with the intent to kill him,'' maintains Terrance van Rensburg, the deputy attorney general for northern Cape Province. ``Therein lies the common purpose with those who did the killing.''

But Andrea Durbach, a member of the defendants' legal team, sees it differently.

``I'm not convinced there was overall intent,'' she maintains. ``These people were reacting to the shock of having their meeting broken up and of being tear-gassed. After all the years of pent-up anger, it just needed a little spark to set them off.''

In the meantime, the trial - which has lasted 20 months - drags on. The defendants crowd onto three rows of benches at the front of the courtroom, seated according to number. (They've even taken to referring to one another as ``Accused No. 5,'' ``Accused No. 13,'' and so on.) To pass the time, some draw pictures. Others build elaborate boats out of thousands of tiny matchsticks. A few study their nails.

`SOMETIMES you feel like screaming,'' says Kenneth Khumalo, looking more like an accountant than aprisoner in his dark suit and tie. ``You get to thinking about the children at home, the other people there. You can't help but worry.''

Their families come too, jamming the back of the room. They spend hours listening with glazed looks as Ian Farlam, the senior defense advocate, cross-examines a state witness about some arcane aspect of social psychology. But at the tea break, they gather around the accused: talking, joking, touching them, handing over presents and bags of food.

Sipho Matshoba, for one, traveled more than 250 miles to be with his son Elisha. Mr. Matshoba, a former mason who sports hands like baseball mitts, couldn't afford the trip on his monthly pension. So he took a job dressing up as Santa Claus at a furniture store in the searing heat of a southern hemisphere Christmas - a small price to pay, he contends.

``I spend the whole time just looking at Elisha,'' Matshoba says. ``My heart breaks everyday, but being able to see my son keeps me going.'' (Elisha painted the courtroom scene pictured here.)

Despite all the drama inside the courthouse, people outside in Upington seem rather unmoved.

``The trial? I don't give a continental hoot about it,'' snorts the owner of a photography store, his walls plastered with portraits of smiling babies. ``Maybe 25 people are a lot to execute for one murder. But what if it were your mother?''

Apparently, there's a good chance all 25 won't be executed. The death penalty is mandatory here unless extenuating circumstances can be proven. (Even then, however, the judge still can opt for capital punishment.) Mr. Van Rensburg, the state prosecutor, thinks extenuation will be found for many of the accused. And, he indicated the state wouldn't ask for the death sentence in those cases.

(The judge is supposed to decide about extenuation on April 7; sentencing will come sometime later.)

People in Paballelo, however, are bracing for the worst. There are dark mutterings around the township about violence if any of the Upington 25 is hanged.

``We're keeping count,'' warns one Paballelo youth. ``They take one of ours, then we take one of theirs.''

For others who are older and less hotheaded, the trial and its possible outcome underscore what many see as a fundamental truth about being black in South Africa. Take Alfred Gubula, whose stepson and niece are among the accused. Mr. Gubula sits in his stifling living room one afternoon, going over details of the case.

``There's nothing I can do to help them,'' Gubula announces suddenly, his eyes filling with tears. ``As a black man, I have no possibilities. There's nowhere to go and nothing I can do.''

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