Special Hearings — Legal Hearings — 1997-10-27

CHAIRPERSON: Mr McNally, thank you.
 May I just say before we get into questions, and I am going to repeat what I said to Mr Von Lieres, that the Truth Commission isn't actually trying to establish who is guilty in a particular instance. I think what the aims and objectives of this Commission are, to really try and understand what went wrong in a particular sector and particularly in the instance today, given the fact that we have all this amnesty applications, given the fact that we have now established from victims that gross human rights violations did take place, what actually went wrong with the different sectors within the judicial system? 
 On Monday we actually explored the question of the role of the judiciary. Yesterday every sector of the profession actually tried to articulate what happened in their history and where they think things went wrong, and I think that's the objective for us of this exercise, and I think we understand your need to put the version that was put forward by Ms Rayner in some kind of context and also offer your own opinion. 
 But I really want to stress that we, and I think I want to take you back to your submission, when you talk about the fact that our rules of evidence are there to minimise falsities, and I want you to think back to the evidence of all the policemen who've come before you, whom we now know have lied and perhaps you can begin to give some perspective of how that could have happened. I think those are the sort of issues that we are trying to address. The question of whether a National Director of Prosecution will actually assist this process to ensure that violations don't take place again, because whatever we say the Office of Attorney General has been regarded as being supportive of the Political Master of the old order. Now how do we ensure that that doesn't happen in a future South Africa? 
 Now that perception may be wrong and we heard from Advocate Von Lieres about his views of that and I think we want to explore those kind of issues with you.

MR MCNALLY: : It's a difficult exploration Chairperson, because while I admire the work of the Truth Commission, and I supported it wherever I can, I believe that the Truth Commission has an incredible advantage over prior investigations, including my own into the Nofomela matter to which Dr Rayner referred. That difference is basically that whereas all that we could offer witnesses was the prospect of possible prosecution, what you offer such witnesses is forgiveness, indemnity from prosecution and freedom from any civil action. So I believe, while I don't wish to take away from the good work that has been done by your Commission, which I admire, I do offer that as a reason why you have had successes in areas where I for example have failed.
 I take as one example, the case of the Fabians. We looked at that at the Harms Commission and I believe that Dr Fabian Rebeiro's relatives were appreciative of our initiative in that respect, and we called General Joubert to the witness stand to explain why a certain person who'd been accused of those murders had had their legal defence funded by the South African Defence Force. And if you look at the record you'll find that General Joubert was very robustly questioned by myself in that regard. But we got near to the truth, but we didn't quite reach the level of truth that the Truth Commission has been able to achieve . So that's an important difference between then and now. 
 The other important thing to notice, is my comment in my presentation that the courts are not concerned with ultimate verities but their concern to make a correct judgment on the evidence available to them. Now that is an approach that we have inherited from Great Britain, and it's an approach that I have some difficulty with because I would like a greater emphasis on the search for the truth. However, I'm a very lone voice in the wilderness on this one, because I believe that an accused short be required to put his facts on the table just as the State witnesses are required to put theirs on the table. That of course infringes upon the right to silence which is enshrined in our Constitution, so it cannot be done unless the Constitution I amended.  But I believe that centuries on from now lawyers will look back on our legal system and say how could lawyers of the 1997 be ...(tape ends) ....plea of not guilty as entered by the Judge. He doesn't have to put any version to the witnesses or even cross-examine any of the witnesses if he doesn't to, he doesn't have to gove any evidence at all. He can allow the whole trial to be debated on a one-sided view from witnesses who may or may not be reliable. Now, I don't believe in that, but as I say that's very much a minority view and I don't think I need plug it any further. 
 But it could be that our rules of evidence could be changed in order to protect against falsity, but in such a way that not so much of the truth is also thrown out with the falsity. But that is something that the academics would have to look at, maybe with assistance from the practitioners. You see in the past the courts were terrified that some little bit of hearsay evidence or some little bit of information that wasn't actually relevant to the trial would come to the ears of the jury and that they would, being laymen accept it as proper evidence, and that is why we've hedged our system around with so many rules of evidence, and we could take another look at that.

YASMINE SOOKA: : Thank you. Hanif. Hanif perhaps we should break for lunch and come back at two o'clock, I think that would perhaps give everybody a break.
HEARING ADJOURNS
ON RESUMPTION

YASMINE SOOKA: : Thank you. Hanif.

MR VALLY: : Mr McNally, I have limited time, so I'll try and rush through my questions. The first question is, that you were appointed to the what is called the "McNally Commission of Inquiry", to look into allegations made by Nofomela and Coetzee. You made reference to the fact that you didn't have all the information at your disposal, but at that time I believe you made a finding which was subsequently released through a court application to the effect that the allegations were without substance and Coetzee and Nofomela were motivated respectively by the grievances against the Police, and the desire to escape the death penalty, when you were Commissioner with the McNally Commission. I'm giving you a summary, is that correct?

MR MCNALLY: : Not quite, as I remember it. I'd like to correct you first of all where you said that I was appointed to investigate allegations by Nofomela and Coetzee that is not so. I was appointed along with a person called General Conradie, to look into allegations that Nofomela had made. Coetzee came into the picture after my appointment when he gave some corroborative information of Nofomela's story. That's the one correction.
 And your summary of my findings are not quite correct, and I'm not in a position, because I don't have the documents here to give you the exact words, but I believe that our finding was that, according to the evidence available to us, and that is a very important phrase that we used, according to the evidence available to us it appeared that Nofomela's allegations were false, as indeed, many of the allegations were false as we now know them. Some turned out to be true, and as soon as I establish the truth of one of them namely, that connected with the Mxenge matter, I took appropriate action and instituted a prosecution.

MR VALLY: : Mr McNally, thereafter you appointed to lead evidence before what was called the Harms Commission part of which Commission's terms of reference was to look into death squads? Maybe you can correct us there.

MR MCNALLY: Unsolved murders.