Special Hearings — Legal Hearings — 1997-10-27

MR HENDRIKSE: Thank you very much Madam Chair. I was appointed as a public prosecutor in the Wynberg magisterial district in the Cape in 1987 where I served for approximately only one year. There were three different matters which arose during my term of office. The first one related to my refusal to prosecute persons under the group areas act. At that time there was an unofficial moratorium on prosecutions but then as a result of Conservative Party pressure on the National Party and to alleviate this "broerder twis" between the two it was decided to make a couple of examples of people. In this case it involved another and a son that was living in Observatory at the time. I refused to prosecute it and I'd informed my seniors of my reasons why not as well.
 The second matter related to a public violence case of which five youths were charged with stoning a bus. There was absolutely no evidence connecting them to the alleged offence. I was informed curtly by my senior prosecutor: "Sien maar hoe ver kom jy." I was therefore instructed to go on a fishing expedition. When the matter did start the state witness the bus driver perjured himself by saying that he saw the perpetrators which he clearly denied in his statements and I made his statements available to the defence again it wasn't supposed to be the correct procedure that I was to follow. I was then called in and told what the correct procedure was. 
 But clearly it was also then assumed that prosecutors would abide by the sort of perjury and not do anything about it. And the tragedy of the matter is that too many of South Africans went or ran the gauntlet of trial and prosecution simply based on the morality of the particular prosecutor. There were no rules as such. You were obliged to have allegiance to the government of the day not the rule of the law. And this is the sort of circumstances you actually then worked under. Prosecutors at Wynberg were regularly called in and given the speech by the senior about working for Pepsi Cola and Coke a Cola and stuff and given the simplistic comparison that when you work for the state you work for the government and you are supposed to do, apply the law. No exceptions are made and the rule will always be applied no matter what your objection is to a particular law. And notwithstanding their own acknowledgement that for example a law such as the group areas act is immoral they simply condense and said you have to do this.
 The last matter also related to a public violence case. And by that time I was a bit fairly sick because I thought well if this is the things, the way things are going to happen here. It was again a public violence case and I'd simply refused to prosecute because at that time it was part of a government strategy that to classify persons involved in a struggle for democracy as common criminals. It helped to assuage their own consciousness and also helps in their propaganda to show that the people in the struggle are all just common criminals with no respect for the law. And I refused to be part of that sort of nefarious scheme and longer.
 I also wish to point out that many of my colleagues were placed in invidious dilemmas because they felt like I felt but because of bursaries and family commitments they could not actually leave the service. It is, I indicate an indictment of the legal system itself that no scope is allowed for conscientious objection in such a service. It is something which will not happen as a rule but exceptional circumstances will appear. In this particular case it involved the actual law. It wasn't something based on evidence but it was a fact of the law itself being immoral. Of the law itself being then criminal; if you want to call it as such.
 A further aspect which I just want to raise was the issue of upward mobility within the department of justice at that time. I had a specific interview with one of my erstwhile colleagues, Mr Ben Julius and he's indicated that he doesn't mind his name being named here. And he said that at one occasion he was interviewed by the then stated attorney general, Mr Roussouw who was here as well as the then chief magistrate, Mr Theron and during the course of that interview he was specifically asked what his attitudes was towards the group areas act and as well as to influx control. When he indicated that he was against such laws and measures he was then informed that doesn't he know what the consequences of the repeal of such laws was. Blacks will move into your neighbourhood and he was informed that blacks usually come in with families of ten or more and that property values will decrease as a result of that. I mean that has got nothing to do with a person's capability to do the job or not. And at the end of that particular interview the chief magistrate told this Mr Julius: "Ek sal my arm stomp af baklei laat jy nie op die bank kom nie." It's a clear reflection that what they looking for is political allegiance to the government of the day and not looking at the person's professional capability. 
 In his particular case he was, whereas normally a person becomes permanently appointed after twelve months. He served for five years on a temporary sort of basis. They refused to actually appoint him permanently in that particular post. So that's the sort of thing that you went through in that department of justice. And I also note that if the consequences of these policies and the actions of these persons were not as traumatic and as dehumanising as they were then new-found sense of justice and defence of morality was actually very laughable. I mean they sit here and by rote talk about being regretful of what they did but they didn't do anything else. I mean they never once even decided not to do something when they in turn clearly had the power to do it and to raise up a sort of Nuremberg sort of defence of "No we were incapable ...

MR VALLY: though made that had to do with a prosecution of a public violence matter which was assigned to you, this is the second one. Can you just briefly tell us what happened, just briefly?

MR HENDRIKSE: Well what happened was that as soon as I indicated to my senior in Athlone, because I was stationed in Athlone at the time, that I refuse to prosecute this I was immediately summoned to Mr Roussouw's office. He asked me, I explained to him why I was not willing to be part of this sort of thing. And also that previously there were certain courts that were set apart to do this public violence because there were prosecutors as well as magistrates who didn't object to doing public violence cases. And I made my reasons known to him. He simply said that he's sorry, that I'm there to do a job, I don't have a choice in the matter and that if I don't do this job he's going to transfer me to the clerk's office to work with the receipt of fines. And then he also indicated that because there is no post available I would then be retrenched. That was a nice way of discharging me but avoiding having to give reasons for my discharge because it would be treated as a retrenchment because there is no post available in the clerk's office.

MR VALLY: And what did you do thereafter?

MR HENDRIKSE: Well I resigned and went out and searched for articles and finally did get it.

MR VALLY: One last question which is the public violence case where you mentioned where because the bus driver had perjured himself you handed over the statements to the defence team. Firstly it wasn't anything untoward when you did that, wasn't that your duty as an officer of the court?