Home / Archive / Law and Freedom part 1 - Who was Mrs Komani?


Part One: Who was Mrs Komani?

Who was Mrs Komani? relates the cases that led to the abolition of the death penalty and the decriminalisation of sodomy. These judgments stand in contrast to the execution, harassment and persecution of apartheid law. However, even under apartheid, law was at times a limit on power and so spaces arose in which people could use the law to contest the abuse of power. One key example explored in the film is that of Mr & Mrs Komani whose 1980 case was a key cause of the collapse of the hated Pass Laws. Who was Mrs Komani? brings to light the people who made possible the cases which have dramatically affected our lives and the history of our country.


Fietas, Johannesburg

Video ClipZackie Achmat: It's the first time I'm back here.

Mashnoona Abrahams: After how many years, Zackie, forty-one years?

Washiela Abrahams: You've come to Johannesburg, but you haven't been here.

Zackie Achmat: It's the first time I've been back here since 1969 on this field.

Zackie AchmatNarration

Zackie Achmat: For me one of the greatest advances in the first ten years of our freedom has been how government, poor communities and marginalised people have used the law to protect and advance our rights. The Constitutional Court, itself, has revolutionised the law in our country. Together we need to discover the power and promise of this transformation.

Fietas, Johannesburg

Washiela Abrahams: We used to play in these streets cricket...and whatever.

Zackie Achmat: Two things I remember in relation to the law in this place: the police would come and raid for beer. That's the one thing they used to do.

Washiela Abrahams: And also if people didn't have their Pass. That ‘dompas' thing.

Zackie Achmat: As children my cousins and I played on this field in Fietas. We watched police arrive in ‘goomba-goombas' and they arrested and beat-up African children, men and women because they didn't have passes.

Zackie Achmat: Passes were legal documents that made African people foreigners in the country of their own birth. This was my first experience with the law.

Xolani Mahola singing: The children shout from the streets as they see police cars coming to raid their homes for one thing or another. They say: "Come leze mama" which simply means hurry up mama and please don't let them catch you.

Supreme Court of Appeal Archives, Bloemfontein

Zackie Achmat: Can you show us one or two records? Mrs Komani's record if you have it...

Clerk: This is the Komani case, this is 440 of '78 and it was taken out here.

Komani v Bantu Administration Board 1980

At home with the Komanis

Video ClipNonceba Komani: I was born in the Transkei.

Zackie Achmat: Can you tell us what happened when the two of you met?

Veli and Nonceba KomaniNonceba Komani: [We got married. We had a child.]

Veli Komani: [I came here [to Cape Town] in 1956. It was December 1956. I was looking for work. Then I got a job at the church. After I got a job, the government gave me a Pass. At the time I had not yet met my wife.]

Nonceba Komani: [I came here during difficult times. I was running away. I was running away from the police. When I went to the Langa Pass Office, they told me to go home to Transkei.]

Veli Komani: [It was a form of oppression. We, the people from small towns, had to have a Pass to go to the city. I didn't have a Pass, because I left my home and came here.]

Nonceba Komani: [They didn't want us. Even in the workplace. If you were working, you had your own plates, which were kept outside. But the dog's and cat's food was kept in the cupboard. But our food was kept outside. And we had to eat outside; when we worked at a white man's house. The white people didn't want us. Tell them how hard it was for us during those times. It was difficult. I couldn't sleep in the house at night, because I didn't have a Pass. They would come at night and kick the door open. They wouldn't knock; they'd just kick the door. Sometimes I would sleep outside, not in the house, because I would be arrested.]

Veli Komani: [I did not want my wife to be sent away. So I decided to talk to the Black Sash, where I got help. They sent me to the magistrate, where I received a letter. When they said she must leave, we went back to the Black Sash.]

Nonceba Komani: [The Black Sash gave us a lawyer. We went to court and during that time, I was arrested again and again and again. When I went to Langa Pass Office, they'd take my Pass and tell me: "Go home!"]

At home with Geoff Budlender

Geoff BudlenderAdv. Geoff Budlender (Legal Resources Centre): When we established the Legal Resources Centre, which was at the beginning of 1979, we always had as one of our focus areas Pass laws. But Komani was the first case, Komani laid the foundation and it was quite strange; it was actually the first case the LRC ever took on. We had opened our doors in January 1979 but we hadn't yet started taking on cases. I received a letter from Noel Robb from the Black Sash in Cape Town who said: "I've heard you've opened this new organisation. We just had a case in Cape Town which we've lost in the Supreme Court. We know that the chances of success are minimal but we feel it has to go further and is this is a case that you'd be able to take on appeal?" When we went to Bloemfontein to argue it, when we started the judges were very hostile. The then chief justice led the attack. In the first few minutes he said: "What do you mean she's got a right to live where she likes? Where does this right arise? We hear about human rights, rights all the time. What's this rights business?" I'll never forget - it was such a ferocious attack. What Arthur Chaskalson did that was incredibly inventive; was that he found another point of attack. He said: "What is it that makes her residence here unlawful?" And what it was, was a set of regulations dealing with residency in black areas. What Arthur said was: "Well the regulations can't be any good because this is a statutory right." By the end of it he turned the entire court around. It was a five-nil decision. I'm not sure that any of these judges were in favour of the appeal when it started. It was the single most impressive feat of advocacy I've ever seen.

At home with the Komanis

Veli Komani: [After the outcome, I was called from work and, because I was a checker, I was told to change my work clothes. I had to put on a shirt and tie. After we had won the case, we went to Langa Pass Office. They watched us through the window and said, ‘here comes Mr and Mrs Komani'. One boer said, ‘now that one kaffir has won it's all over. No more Passes'. And it ended there.]

Nonceba Komani

Nonceba Komani: [After that we were very happy. Very Happy.]

Veli Komani: [I voted in 1994 and I've been voting ever since.]

Nonceba Komani: [Since I've voted, I've seen a lot of change and I'm very happy about it. I can walk wherever I want to.]

Narration

Zackie Achmat: The Komani case was a tremendous victory but it was isolated because everyday under apartheid more than a thousand people were arrested for Pass Law offences and this meant that anti-apartheid lawyers had few victories in court.

At home with Gilbert Marcus

Video ClipGilbert Marcus: I've grown up in Johannesburg in essence all my life but I come from a political family in the sense that my mother was a refugee from Czechoslovakia. She escaped the Nazi Holocaust in 1939. In 1939 South Africa was not admitting Jews and she, in fact, went to what was then Rhodesia. My father, who was fighting in the war, met her on his way back from the war and they got married and came to South Africa. But one of the peculiar features of the apartheid legal order was that so much of the oppression was done in the name of law.

Outside the Constitutional Court

Johann Kriegler (Former Constitutional Court Judge): That ‘dignity, equality and freedom' is in my handwriting. My Children recognise it.

In Judge Kriegler's Chambers

Johann Kriegler: In the days of the apartheid regime, late 70's, 80's, the lawyers were very limited in the power that they could exercise. Judges were relatively powerless in order to prevent injustice. I was a judge before and after the change and I know; I've been there, I've got that t-shirt.

Zackie Achmat: You had a beautiful one-liner earlier which said: "We have moved from the rule of men to the rule of law."

Johann Kriegler: I like to say that we've moved from the rule of men to the rule of law but the women among us don't like me saying it that way. It is; the real change has been from the whim of men to the rule of law.

At home with Geoff Budlender

Geoff Budlender: The critical thing about the law in South Africa under apartheid was that, it's true, was the rule of men but, the rule of men through law. And that's very different from the rule of men through other efforts. Because law is a discipline on power, it's a limit on power. And if the system is even moderately honest in the legal sense, then spaces arise; because once you say power is subject to the law, then you need a legal authority for the exercise of power.

Narration

Zackie Achmat: Our Constitution, a product of the mass struggles of our people against apartheid, ended this chapter in our law.

Footage of the opening of the Constitutional Court - 14 February 1995


At home with Gilbert Marcus

Gilbert Marcus: The transition in 1994 was a radical transition because it was a transition from a principle of parliamentary sovereignty to constitutional supremacy and what that means is that, under the Constitution, it is the Constitution which is the supreme law and Parliament is constrained; Parliament is no longer able to pass any law that it wishes.

The opening of the Constitutional Court - 14 February 1995

Opening of the Constitutional CourtChief Justice Arthur Chaskalson: This historic occasion marks the beginning of a new legal order in our country. It is a legal order that arises from the Constitution of 1993 making the Constitution the supreme law of the land; binding on all legislative, executive and judicial organs of the state at all levels of government. A legal order committed to the creation of an open and democratic society based on freedom and equality.

At home with Geoff Budlender

Zackie Achmat: Perhaps this is as good a time to talk about Arthur Chaskalson. Everyone says to me: "You should ask Geoff about Arthur Chaskalson."

Geoff Budlender: One of my strongest memories of him is in 1977 and '78, the trial of Tokyo Sexwale and 11 others. While the other four of us were consulting and taking statements, doing all the things that lawyers do, Arthur Chaskalson was very often sitting in a corner with one of the accused having a long intense conversation with him about matters that were obscure. I don't know what he was talking about but he got to know the people, got inside them and developed relationships with them which were very unusual and which continued after the trial. Because he had a deep concern about the human beings involved, he was, therefore, more than just this extraordinarily intelligent legal technician. And that was always a large part of what he did. His connection with the human beings in the case was always very intense and intimate.

The opening of the Constitutional Court - 14 February 1995

Arthur Chaskalson: The supremacy of the Constitution brings to an end an era in our legal history when the law and rights of our people were subjected to the legal doctrine of parliamentary sovereignty.

Nelson Mandela: The last time I appeared in court was to hear whether or not I was going to be sentenced to death.

In Judge Kriegler's Chambers

Johann Kriegler: Very early on, in mid-1995, we'd only just started, on the 15th of February, as a court and nobody knew what this animal was, a Constitutional Court, and how would it function. There was a proclamation by new President Mandela, the icon, the hero, and this proclamation was legally bad. Not because the President was bad but because the legal advice he got from his advisors it turned out, we found, to be bad. And we knocked down a proclamation of Madiba's.

President Nelson Mandela at a press conference outside his home

Nelson MandelaNelson Mandela: The Constitutional Court is the final arbiter on matters of this nature. They've pronounced themselves very clearly and I will defend any decisions which they take whether it is against my own interests, my own wishes or inconsistent with my own ideals.

In Judge Kriegler's Chambers

Johann Kriegler: From that day on Constitutional democracy in this country was on a sound footing and I don't think we've looked back.

Narration


Video ClipZackie Achmat: The death penalty first entered my political consciousness as a tool used by the state against its political opponents. Bambatha, Hintsa and many other anti-colonial fighters were all summarily executed. For all people of my generation we remember how the apartheid state executed freedom fighters. In the past I never opposed the death penalty on principle, I only opposed it when the state used it against its opponents.

Zackie Achmat: Apart from his legendary legal reputation, George Bizos is famous for something else, his salads. I worked as a researcher for Bizos on the ANC legal team on the inquest on the deaths that occurred after Inkatha attacked the ANC headquarters in 1994. George brought us salads every day from his garden. In 1995 George Bizos represented the government in the first case heard by the Constitutional Court.

Bizos in his garden

George BizosGeorge Bizos: I had avoided the death sentence in all the trial cases that I did but I did do the appeal together with Harold Hansen of the three accused from the Eastern Cape, Mini among them, a leading trade unionist.

Narration

Zackie Achmat: Activists of my generation remember singing: "Passop Verwoed, the black man will get you." Vuyisile Mini, an ANC and trade union leader, was framed and executed with his comrades Wilson Khayingo and Zinakile Mkaba. Mini and his comrades walked to the gallows in Pretoria singing his song.

Bizos in his garden

George Bizos: My visit to the death cell, the ashen faces of the three people who had been sentenced to death, who were political leaders in the Eastern Cape, and staunch supporters of the ANC had a terrible effect on me.

Song: This is a song about my ill-health. Please let the men come out of prison, because there are problems at home.

In the Supreme Court of Appeal

Judge Edwin Cameron: When I went to visit the Sharpeville Six on death row the warder's office in which I visited them had a scale and in the corner there was a long vertical pole by which he measured someone's height and they told me that just a few days before they'd been weighed and measured so that the length of the rope necessary to kill them effectively could be determined by the hangman. It was a terrible thing to practice under a system that systematically, brutally and clinically did people to death at those gallows in Pretoria and I hope that we will never ever go back to it.

State v Makwanyane and another 1995

Chief Justice Arthur Chaskalson: What we decide will determine what the Constitution means and from our decisions there will be no appeal. The awesome nature of this responsibility is apparent in the profound and difficult issue that comes before us in our first case, which raises the question whether the state has the right to take the lives of persons, citizens of this country, who have committed murder.

At home with Gilbert Marcus

Gilbert MarcusGilbert Marcus: I was a member of the Bar Council, the Johannesburg Bar Council, at the time and the Bar Council asked Wim Trengove and I to do the appeal pro amico and that's how we got involved in the case. Wim and I asked Geoff Budlender of the Legal Resources Centre to come onboard as the attorney and we took on the case.

At home with Geoff Budlender

Geoff Budlender: Days in court were very dramatic. It was the first time I'd done any substantial work with Wim Trengove which was in and of itself a revelation because he did such an extraordinary job.

In Wim Trengove's Chambers

Wim Trengove: It was the first case, new Constitution, new court, new jurisprudence or, frankly at that stage, no jurisprudence. The death penalty, what can be more symbolic of what the Constitution stands for than an adjudication on the constitutionality of that law that says, in certain circumstances, the state can in cold blood take the life of a human being?

SABC news insert

Newsreader: Two young policemen and two employees of Volkskas Bank died in an attack by armed men at Coronationville Hospital in Johannesburg. A third bank employee was wounded. The police were escorting the bank vehicle from Auckland Park to the hospital to deliver wages. After the two vehicles had stopped, seven or eight men, armed with AK47s and handguns, opened fire on them. One policeman died instantly and the other was severely wounded.

In George Bizos' garden

George Bizos: It was for me almost irrefutable evidence that change had really come about in the administration of justice in South Africa, because Makwanyane and his co-accused were really almost beyond redemption.

In Westville Maximum Security Prison, Durban

Video ClipZackie Achmat: What year were you born?

Themba Makwanyane: December 1957.

Zackie Achmat: And how old are you now?

Themba Makwanyane: [I think I'm 46. I grew up in KwaZulu-Natal. In 1975, I went to Johannesburg to look for work. In 1986 I lost my job. I was involved in an armed robbery, there was a shootout between us and the police and some of them died. We ran from the scene of the crime into a township.]

SABC news insert

Newsreader: The robbers fled after they had allegedly hijacked a minibus to Soweto. The police, with two helicopters, immediately launched a large-scale search for the men.

In Westville Maximum Security Prison, Durban

Themba Makwanyane: [I don't know how they got their information because we found ourselves being arrested.]

Wim TregoveIn Wim Trengove's Chambers

Wim Trengove: After all, who is the worst and the weakest and the most marginalised in our society other than those who have been convicted of murder sufficiently reprehensible to warrant a sentence of death?

In Westville Maximum Security Prison, Durban

Themba Makwanyane: [We went to the trial and we were supposed to be sentenced in 1991. But we weren't sentenced in 1991. We went for a second trial because one of the robbers was still in hospital and we were waiting for him to get out. Later, we both got sentenced to death.]

Zackie Achmat: When you heard that the case was going to the Constitutional Court how did you feel?

Themba Makwanyane: [If the death penalty was not abolished in South Africa, I knew I was going to die. I was very anxious but I had to face it like a man.]

At home with Gilbert Marcus

Gilbert Marcus: The role of dignity under our Constitution assumes particular importance. It's not only because the Constitution guarantees the right to dignity but because the Constitution articulates a range of foundational values. One of those foundational values is human dignity.

In Wim Trengove's Chambers

Wim Trengove: The Constitutional Court made clear that that minute group of people on the very far fringe of society were held to be protected by the Constitution, were held to be entitled to the Constitutional protection of their dignity.

SABC News, 6 June 1995

Newsreader: The Constitutional Court took its first major decision today that capital punishment should be abolished. While studies have shown that the majority of South Africans are in favour of the death penalty.

In Zackie's study

Zackie Achmat: Justice Chaskalson says the following in the Makwanyane judgment:

Public opinion may have some relevance to the enquiry but in itself it is no substitute for the duty vested in the courts to interpret the Constitution, to uphold its provisions without fear or favour. The very reason for establishing the new legal order and for vesting the power of judicial review of all legislation in the courts was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalized people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us that all of us can be secure that our own rights will be protected'.

In Westville Maximum Security Prison, Durban

Themba Makwanyane and Zackie AchmatThemba Makwanyane: [On the day of the abolition of the death penalty in South Africa, we listened to the radio. A lawyer from Lawyers for Human Rights, Mike Kekana, announced that the death penalty had been abolished in South Africa.]

In Judge Kriegler's Chambers

Johann Kriegler: As a judge I had to impose the death penalty on three people. On two people in one case when I was profoundly unhappy because I was satisfied the truth had never come out. The other case was a very, very bad case: a rogue policeman, who had murdered, robbed and raped. He had managed to do all in one go. I sentenced him to death; I had not compunction. I have no regrets today. That was the law; I had taken an oath of office. I did it and don't ask me today whether I am in favour of the death penalty: I don't know. But I do know is that under our Constitution and in our society it can't work and it's not legal.

In Westville Maximum Security Prison, Durban

Themba Makwanyane: [If I had a chance to apologise to the families of those I killed I would like to meet them.]

In Judge Kriegler's Chambers

Johann Kriegler: I would like to say to people who glibly speak of: "Bring back the death penalty." I don't want to be insulting and I don't want to be rude but you don't know what you are talking about.

In Westville Maximum Security Prison, Durban

Themba Makwanyane: [Prison is a hard place. You can't do anything in your own time. If the warders decide today that I can't leave my cell, then I can't leave my cell. I can't exercise because they want me to stay in my cell. There's nothing to be happy about.]

Narration

Zackie Achmat: Studying the Makwanyane judgment taught me that the death penalty was wrong in principle; it's cruel and barbaric. The death penalty is used more against poor people than wealthy. It is used more often when the victims of crime are white rather than black. Justice Pius Langa taught me that the state must be exemplary in protecting and giving value to every human life. The state should not engage in legalised execution even if people have committed murder.

In Judge Kriegler's Chambers

Johann KrieglerVideo ClipJohann Kriegler: I had a lovely debate with academics in the United States a year or two ago about the death penalty. They wanted to talk Makwanyane. These were the crème-de-la-crème liberal establishment anti-death penalty activists who work all over the United States. The issue then arose after we talked Makwanyane about gay rights and my wife said that one of our top judges in the local courts is a practicing ‘outed' lesbian. And they said: "You've got a lesbian on the high court bench?!" They couldn't believe it. I said probably one of the brightest stars in the whole firmament is a gay man in the highest court of our black letter law. They said it's unthinkable.

Narration

Zackie Achmat: In 1994 I went to work at the Aids Law Project at the Centre for Applied Legal Studies; there I met Edwin Cameron, my boss, mentor and, later, friend. Edwin was not only a gay man who had fought for lesbian and gay equality for all of his life but he was also one of the foremost anti-apartheid lawyers.

In the Supreme Court of Appeal

Edwin CameronEdwin Cameron: I have strong family connections with Bloemfontein. My mother was born here and her family came from Bloemfontein. My sisters were born here and I associate Bloemfontein with a time of intense poverty in our family. I used to come back to Bloemfontein to be with my mother during two school holidays a year while I was in the children's home in Queenstown which is about four or five hundred kilometers from Bloemfontein in the North Eastern Cape. And we were very poor; we lived in a boarding house in Kelner Street, two or three streets away from the court and of course to come back as a judge of appeal in this august institution holds all sorts of very intense poignancies and reminiscences and intense emotional associations and they were all there for me.

Narration

Zackie Achmat: The Constitution not only enshrined the principles of the Freedom Charter it also outlawed discrimination on the grounds of sexual orientation. In the National Coalition for Gay and Lesbian Equality I worked as a political activist and a gay man to help end the laws that criminalized sex between men. The Sodomy Judgment is the foundation for the constitutional jurisprudence that protects lesbian and gay equality.

National Coalition for Gay and Lesbian Equality (NCGLE) v Minister of Justice 1998

In Ronald Louw's office

Prof. Ronald Louw: Really at the heart of gay and lesbian discrimination lies the offence of sodomy. I think it's symbolic of a disgust, of a revulsion and of an othering of gays and lesbians.

Mazibuko Jara: I actually learned from my work in the coalition what the Constitution actually included; starting with sexual orientation but also all those other grounds.

Zackie Achmat in an interview prior to NCGLE v Minister of Justice

Zackie Achmat: Our struggle is first and foremost to decriminalize all sexual relations between consenting adults. Our other struggle relates to asking every single company, every government department and every single person, our parents included, to recognise our relationships and I think that is the fundamental right that every lesbian and gay person in this country wants.

Gay and Lesbian Archives, Johannesburg

Vusi Msiza: It was the first campaign that made me feel like: "I'm gonna do this." We started looking at townships to target so that people can come out and campaign. We wanted people in the community to write to newspapers and to get involved. I think it created a change because people knew how far the Coalition was in fighting the sexual offences laws.

Mazibuko JaraMazibuko Jara: There was really not just mobilisation in terms of marching there was actually a mobilisation of people in terms of giving them an education, giving them information but also saying; you are using the language of human rights to say these are the rights that people are denied despite the fact we have a new Constitution.

In Ronald Louw's office

Prof. Ronald Louw: I think a lot of people rallied around that and saw it as very important to express their voice. The court itself, of course, when it finally went to the Constitutional Court, was filled with people wanting to claim their rights.

SABC News, 9 October 1998

Newsreader: The Constitutional Court has declared the Sexual Offences Act; that prohibits sexual conduct between men, unconstitutional. The judgement overturns the common law offence of sodomy, which made sex between men a criminal offence, irrespective of whether it was consensual or not. The prosecution for this conduct was equivalent to sexual offences such as rape.

After the ruling in NCGLE v Minister of Justice was handed down

Gay and lesbian marchZackie Achmat: It has taken two years but it is one of the most well-reasoned judgements that has come out of the Court on the question of equality. The Court has said that lesbians, gay men and anybody who was affected by these laws have a right to equality, dignity and privacy and that as a minority, or as people who have been oppressed for a long time, that we have the right to assert our dignity, that we have the right to claim our citizenship.

Gay and Lesbian Archives, Johannesburg

Vusi Msiza: After 1994, the elections, the new laws and stuff like that people had a voice to speak.

At home with Gilbert Marcus

Gilbert Marcus: I think that the Sodomy case really raised, for the first time, the importance of the guarantee of equality in relation to a vulnerable group. And I think that the Constitution's protections are most important when they are invoked firstly by minorities and, more particularly, by vulnerable minorities.

In the Supreme Court of Appeal

Edwin Cameron: It was remarkable for me that you had eleven Constitutional Court judges, black and white, male and female, old order, new order who all signed on to a judgment that for me, as a gay man, expressed my dignity under the Constitution. And it wasn't just a question of feeling warm hearted; I did feel very warm hearted, but for me it was something more civic than that; it was a public pronouncement of my entitlement, as a gay man, to be a fully-fledged member of the South African democracy and that was wonderful.

Gay and Lesbian Archives, Johannesburg

Vusi Msiza: It did make a difference. I was no longer a criminal in terms of the Sexual offences Act. It gave me hope because I felt like a citizen of South Africa.

In Zackie Achmat's Study

In Zackie Achmat's studyZackie Achmat: In its first few years the Constitutional Court expanded the boundaries of equality, freedom and human dignity, but establishing these principles was not enough. As Chief Justice Arthur Chaskalson wrote in 1997:

We live in a society in which there are great disparities in wealth: Millions of people are living in deplorable conditions and in great poverty. There are high levels of unemployment, inadequate social security and many do not have access to clean water or to adequate health services. A commitment to address these conditions and to transform our society lies at the heart of our new constitutional order.'