Special Hearings — Legal Hearings — 1997-10-27

MR MCNALLY: : The idea of having a Board of attorneys who, although they had enthusiasm and goodwill for the job, we're not necessarily attorneys coming from a background of doing criminal work, is something that I think did perhaps not work too well with the ITB. There was no reason of non-enthusiasm or anything like that. They most certainly applied themselves with great enthusiasm and vigour, but basically I experience it as a strange system to have to deal with an investigator, who wasn't a policeman, but who was actually a Board of Attorneys, and I think this is possibly also worked against me in regard to the perception matter that Advocate Potgieter was referring to because the Attorney General's relationship with the police is such that if they don't agree with one of my decisions, they come to me and they tell me they don't agree with that decision on the face of it, could I please explain it to them. I will then explain it to them and our relationship is such, that they will accept my explanation and will more likely than not go away happy. Howard Varney's approach unfortunately was not to do that, but to run to the newspapers with a diatribe against me for not prosecuting in the case that he said was water-tight.
 Now, that was a new approach to me which I find difficult to handle, because instead of doing my normal work, I was answering telephone calls from newspapers from here to London and New York about how I was handling these cases and I was also having to reply by these attacks on me by Howard Varney. Now that made for a very difficult relationship, and I must say I find the relationship that normally exist between the Police and the Attorney General to be a more comfortable one, but there were a positive aspects of the ITU.  The ITU in my opinion worked very hard, both in their investigation unit and in their Civilian Component and I certainly drew benefit from the research and the input from this Civilian Component. It was something I also hadn't experienced before, they hadn't experienced before either, which perhaps inhibited their ability to help, sometimes the material came through after the witness had already been cross-examined for example. They didn't realise always the need to have the material lined up at a particular time of a trial, but that was inexperience on their part and inexperience on our part because it was the first time that we had had a Civil Component doing research for us, but it is something that we could look at particularly for the big Attorney General's offices to have people like computer experts and researchers and that type of person to help with the "back-room" work involved in preparing a big case like that.
 In fact, the perception may be that I didn't have the resources or the advantages necessary to prosecute the General Malan case adequately, the truth is the exact reverse. I had investigators available to me twenty four hours a day, I had the Civilian Component available to me, I myself am a Senior Counsel, I had a Senior Counsel assisting me, I had Karl Kunig, who was a Senior State Advocate assisting me with goodwill and he was really trying his best to assist me, so that was a case which was completely resourced from my point of view and I certainly don't blame the fact that there wasn't a conviction on lack of resources.

YASMINE SOOKA: : Thank you. Ilan.

MR LAX: : Thank you Chairperson. Mr McNally, we're grateful for your acknowledgment of regret vis a vis apartheid legislation and the consequences of that. My question is really focused on the future. God forbid, we should find ourselves in a situation where Prosecutors are again called upon to apply unjust laws. But if that were to be the case, how would you see Prosecutors trying to deal with that dilemma in the future, as something we might try and put safeguards into our recommendations?

MR MCNALLY: : It's very difficult to find any system that is perfect or utopian, and there are certain aspects of today's legislation which I personally find morally unacceptable, such as being a Catholic, the abortion laws, just to give you one example. I believe it is questionable whether we should be prosecuting people who are illegally in our country from other countries. Is it not something like the Influx Control of old? I don't have a firm view on that, I just raise it as something that could trouble certain people. So even though we have shed off apartheid, that is no guarantee that all the laws that will be passed by a new government or any future government will be one hundred percent moral, but we will have to apply whatever laws come our way in terms of the new oath that I have quoted to you.

YASMINE SOOKA: : Thank you Mr McNally, thank you very much for responding in the way you have. Thank you.

YASMINE SOOKA: : On behalf of the Commission, we would like to welcome all of you to this hearing, I believe that our Legal Adviser has already discussed with you over lunch time, the way in which we going to proceed. ...(tape ends)