Rare S. Africa Case: Parents of Victim Prosecute Police

CAPE TOWN, South Africa —  Operation Spookvoertuig--Ghost Vehicle--was simple. A soldier and seven policemen armed with Beretta pump-action shotguns hid in crates on a flatbed truck and trolled slowly through the volatile township, waiting for someone to throw the first stone.

Sure enough, a chunk of concrete shattered the windshield on a sunny spring afternoon in 1985, the officers popped out of their boxes, and the air rang with gunfire and screams.

In 14 seconds, three youngsters were dead and 11 injured.

What the police had not counted on, though, was the American camera whose videotape brought the bloody operation into the world’s living rooms, fueling a U.S. sanctions drive and prompting Pretoria to ban news coverage of all police actions against unrest.

It also set up one of the most unusual legal maneuvers in South African history.

A coroner’s inquest saw the TV footage and blamed police negligence for the deaths, finding “not a shred of evidence” that any of the three victims had thrown stones. The attorney general refused to prosecute, however, saying that the police “didn’t mean to kill anyone.”

But now the eight marksmen, two police drivers and three commanders ride the red-cushioned dock in Courtroom 3, charged with murder. They face the death penalty. High above them in the gallery sit the prosecutors: the parents of Shaun Magmoed, a 16-year-old bystander slain in the operation.

The Trojan Horse case, as it has come to be known here, is the first important test of a rarely used legal provision, unlike any in the United States, that allows victims to bring their own criminal charges if the government refuses.

More than unfinished business from the bloody past, the case carries broad implications for the South African criminal justice system, whose reputation for independence has been battered by a three-year-old state of emergency that has suspended most civil rights and left attorneys and judges little room to maneuver.

“We’ve got some very fine judges in this country, but they’ve got a problem: We’ve got some unfair laws and no bill of rights,” says Jules Browde, a veteran Johannesburg civil rights lawyer who is leading the Magmoeds’ prosecution team.

“Win or lose, this case will show the police that they are still subject to the law and that a private, ‘humble’ citizen can still bring them to account,” Browde says.

The central question before Judge Deneys Williamson here is: Did the officers manning Operation Ghost Vehicle use excessive force? And, if so, are the 11 police officers and two army soldiers guilty of murder? His verdict is expected within days.

The private prosecutors argue that the police action, carried out on a street crowded with innocent bystanders and using a type of ammunition known to be deadly, was unreasonable by any measure of police conduct.

They point out that the police had other, less deadly methods of riot control at their disposal, such as tear gas and birdshot. The ammunition used, AAA buckshot, was considered more lethal than birdshot, and only a few days earlier a police directive from Pretoria had recommended that riot officers use nothing more deadly than fine birdshot in unrest situations.

“At its simplest, this case is about wantonness,” said Jeremy Gauntlett, a senior advocate for the prosecution. “This was unrelated to any ordinary police power. They don’t have a generic power to shoot people. And that’s what happened here.”

Lawyers for the defendants say the operation was designed to find and arrest the ringleaders of violence in the troubled township and restore peace. In their sworn statements, several officers said they fired in self-defense. Others said they fired to wound the troublemakers and keep them from fleeing arrest.

But Magistrate G. Hoffmann concluded at an inquest last year that Operation Ghost Vehicle was devised by frustrated policemen “to teach these youths a lesson.”

Shaun Magmoed was one of about 150 people standing outside homes and shops in Athlone, a mixed-race township near Cape Town, when the seven-ton yellow Ford, a delivery truck for the state-run railway agency, appeared.

For weeks, similar vehicles had been struck with rocks in the seething townships, and roads often were closed by barricades of burning tires. The authorities had been unable to stop the mayhem. Whenever police arrived, the stone-throwers fled into the warrens of the township.

The officers who ordered the unmarked truck onto the streets on Oct. 15, 1985, couldn’t have been pleased to learn later that two foreign television crews had filmed the entire operation. Their dramatic footage would help awaken the American public and mobilize world opinion against Pretoria.

Chris Everson, a CBS-TV cameraman, had set up his camera and aimed it at the street when he saw youths throwing stones at vehicles thought to be government- or white-owned. When he saw the Ford truck approach, “I thought it would be one of the targets,” Everson testified at the trial.

The truck, driven by two policemen disguised in gray dustcoats, was ignored during its first trip down the street. But on the second pass it was struck by one brick and two or three rocks.

The videotape shows the windshield shattering and, two seconds later, police emerging from boxes and aiming weapons at both sides of the street.

“It was like the Third World War. A tremendous amount of shooting,” Everson testified. In all, 39 rounds were fired.

Magmoed ran into a house and collapsed, mortally wounded. His left side and back, from his jaw to the sole of his foot, were riddled with shotgun pellets, an autopsy later showed. Two other onlookers, ages 11 and 21, died in the street.

None of the policemen were injured.

When Hilary Magmoed heard her son had been shot, she ran two blocks to the street and, told he had been taken away in an ambulance, went to the hospital.

“The ambulance driver tried to comfort me, then he took me inside,” she remembered in a recent interview, tears welling up in her eyes. “All three boys were lying there. Shaun was in the middle. I put my hand on his forehead. . . . “

The police arrested and charged the injured people with public violence, but all were acquitted. None of the police officers was suspended or charged despite the coroner’s ruling of police negligence three years later. Two of the officers have since been promoted.

“We decided there was no reasonable expectation of a criminal court finding anyone guilty here,” Daniel Rossouw, attorney general for the Western Cape, said in an interview. “The chance of success was so small that I felt it was unfair to the accused (policemen) to parade them in court. That’s a decision you live with every day.”

But Rossouw’s decision led to a public outcry, and anti-apartheid organizations assembled a legal team to bring a private prosecution, the only one of its kind ever undertaken in South Africa against police.

The case against the one mixed-race and 12 white officers has proceeded without fanfare since August in a small, oak-paneled Cape Town courtroom next door to the terrorism trial of 14 anti-apartheid activists and across a blooming garden from the halls of Parliament. Closing arguments are scheduled for later this month.

The prosecution’s $1,000-a-day tab is being paid by overseas human rights organizations, while the defendants are represented by a battery of state-paid attorneys, at a daily cost estimated as high as $10,000.

Of fewer than half a dozen private prosecutions in South Africa in recent years, all have been on charges less serious than murder, and none has been successful.

Private prosecutors are hampered by a lack of access to the investigative forces of the police. And the Trojan Horse prosecutors say that bringing a case against police, especially police being defended by the government, carries special difficulties.

Shotgun pellets removed from Magmoed’s body mysteriously disappeared from a police supply room, for instance. And when the prosecutors asked for permission to see the murder weapons, they were surprised to learn the shotguns already had been turned over--to attorneys for the defense.

Judge Williamson’s verdict here may turn on the legal doctrine of “common purpose.” Because the police used buckshot, which contains 40 to 45 pellets per cartridge, forensic experts cannot link the fatal shots to a specific gun. So the prosecution must rely on “common purpose,” under which all defendants who share criminal intent are equally guilty, whether or not they actually lifted a hand in the killing.

The government has used “common purpose” to put several dozen black activists on Death Row in recent years. The Sharpeville Six, for example, were sentenced to hang for the mob murder of a Lekoa town councilor even though there was no evidence that any of them directly contributed to his death. Former President Pieter W. Botha granted the six reprieves from the gallows last year after worldwide pleas for mercy.

Shaun Magmoed, who loved break-dancing and wanted one day to become a traffic policeman, was buried atop an uncle’s casket to save the expense of a cemetery plot. Three years later, the state paid Shaun’s parents $300 in an unpublicized, out-of-court settlement for his funeral expenses.

Hilary Magmoed keeps the photos of her son in a bedroom drawer in her Athlone home, memories still too painful for open display. She says that sending the 13 men to jail won’t ease her heartache, but it would make her feel better just the same.

“I don’t hate those policemen, but I can’t stand to look at them,” she said. “It’s always on my mind. . . . They shot my son.”

Meanwhile, Atty. Gen. Rossouw worriedly watches the case unfold from the downtown office where he oversees a staff of 27 public prosecutors. A presidential appointee with a decade on the job, he says his personal credibility and the reputation of South African justice is at stake.

“I still don’t believe I was wrong not to bring charges,” Rossouw said. But if the Magmoeds win a conviction, he added, “I’d have to think seriously of resigning.”