Special Hearings — Legal Hearings — 1997-10-27

MR MCNALLY: My area of jurisdiction was then Orange Free State. My appointment was definitely not political. Born in India, and remember Indians were not allowed in the OFS at that time for more than twenty four hours at a time, I was an English-speaking Rooinek, practising Catholic. None of these qualities suited me for a political appointment.
 Until the passing of the Attorney General Act of l992, the Minister of Justice was technically entitled to interfere with my decisions. He made his preference known to me on occasion, but he always left the decision-making to me. I conducted my performance apolitically and independently of ministerial control. 
 Most of the work which crossed my desk dealt with run-of-the-mill criminality. This gave me scope to do what had attracted me to the Attorney General's Division in the first place, namely, to be a significant player in the fight against crime and a participant in the process of doing justice, which in this sense was according to the common law as between person and person, victim and criminal.  Apartheid legislation was supported by the criminal sanction. Prosecutions arising from alleged breaches of this legislation were dealt with by me at the decision level. I continued a practice of my predecessor of insisting that Group Areas dockets and sex across the colour line dockets be submitted to my office for decision. The reason for this policy lay in the recognition of the sensitivity of such cases and the ability at my level to exercise a limited prosecutorial manoeuvrability and creativity, to adapt a phrase once used by Professor John Dugard concerning judges.
 The fact remains however, that although I was able to decline to prosecute in certain instances, there were others where I did order a prosecution. It is also a fact, that many thousands of my fellow citizens passed through the magistrate's court for Influx Control infringements, although I did not deal with these cases personally, they were handled by my duly appointed delegate to my knowledge. I take full responsibility for all prosecutions in my area of jurisdiction in respect of contravention's of apartheid laws. 
 I was aware of the suffering caused by these prosecutions. I've been a member of NICRO since about 1963, and during the State of Emergency in the 1970's, I served on NICRO'S National Council with Judge Goldstone and others. NICRO had credibility with affected communities. The fact the Judges and a Deputy Attorney General, as I was at that time, participated in NICRO, also gave NICRO credibility with the Police. NICRO was able to setup information centres where those whose relatives had been detained could discover where to trace and visit them. My prosecutorial function and my work with NICRO gave me insight into the massive problems that apartheid was causing. I do not hesitate to say that I regret the trauma and the suffering caused to my fellow citizens by prosecutions under apartheid legislation.
 I want to move on now to another sector in my presentation which deals with police suspects, that is, cases where the polices themselves are suspects, because the TRC has heard tales of torture and abuse by the police.
 When policemen are alleged to have committed crimes, it is the Attorney General's office which decides whether their conduct requires prosecution, departmental action, or no action. The reason for this countrywide practice is that the Attorney General is in a better position to make an objective and professional decision than the local prosecutor who, particularly in small offices, works closely with the police on a regular basis. My view is, and always has been, that it is the duty of the police to combat and investigate crime, not to commit it. Because of their peculiar responsibilities, I believe that it is more morally reprehensible for a policeman to commit a crime, than is the case of a common criminal. Where the criteria for a prosecution are satisfied, my policy is, and always has been, to prosecute a policeman suspect. and I attach to my presentation a detailed explanation of what my criteria for prosecution are. 
 I have noticed in the media that certain policemen such as one called Benzein have applied for amnesty and had even demonstrated how they tortured suspects. Their stories revolt me. Tales of torture are often told in court, particularly by those who have made confessions. These allegations are meticulously investigated, usually in what is called a "trial within a trial". Judges do their best to get to the bottom of these allegations.
 An important distinction needs to be made between being told such horror stories and knowing them to be true. They get investigated and if justifiable, prosecutions are instituted. Torture of suspects to get to the truth used to be legal in terms of Roman Law, in the old days. Today, it is illegally practised by bad cops in countries around the world. If they get caught out they receive no mercy from the prosecuting authorities, and most certainly not from me. 
 The way forward: South Africans have shaken the dust of apartheid from their sandals and moved on. The legal profession is known for its conservative approach, but its intellectual athleticism, particularly at the level of the judges, has allowed it to embrace the new legal order based on a human rights culture. The Attorneys Generals division is about to be structurally transformed by the implementation of Section 179 of the Constitution, which requires the appointment of a National Director of Public Prosecutions who will enjoy the power to review the decisions of the Provincial Directors, that is the present Attorneys General. It is idle, I would argue, to debate as to whether the Attorneys General oppose this or not, because the fact of the matter is that the Constitution now requires it and all of the Attorneys General have informed the Minister that we will fully cooperate with the implementation of the National Prosecuting Authority Bill. We fought it, and we lost the battle, and we are now going to cooperated with the victor. 
 The National Prosecuting Authority Bill envisages that prosecutors should be required to take the following oath of office: 
"I do hereby swear (solemnly affirm) that I will in my capacity as National Director of Public Prosecutions/Director of Public Prosecutions/Prosecutor, uphold and protect the Constitution of the Republic and the fundamental rights entrenched therein, and enforce the law of the Republic without fear, favor or prejudice, and as the circumstances of any particular case may require, in accordance with the Constitution".
This oath is fully in line with my personal sentiments. 
 My prosecution staff is itself in the midst of major transformation from being mainly white to real representivity. In the lower courts in my area of jurisdiction black prosecutors, using that word generically, outnumber their white co-workers by 176 to 80. The pressure of the number of applications by members of previously disadvantaged groups for positions in the prosecution service at the Lower Court and High Court level is the measure of the greater acceptance of the prosecution service as an appropriate environment for employment. 
 The TRC has given the legal profession a forum in which to confront its past. I ask the TRC to send out a message of encouragement to the Prosecution Service to assist it to confront the present and the future with dedication and professionalism. 
 Now, Chair Person, that was my written document, which I make available to your members for distribution. 
 I'd like to touch on the presentation of Dr Rayner today. First of all I would like to say that I had no notice that Dr Rayner was going to even make a presentation today, until I arrived in Johannesburg last evening, and was shown a copy of today's programme by one of my colleagues. I did receive, from London, yesterday a fax of Dr Rayner's presentation, but it, I don't know whether I missed something in the fax, I was in quite a hurry to get off onto the road, but my impression is that it was not made clear to me that that document was going to be under discussion at today's hearing. So, I have come unprepared on that, but, although unprepared, that doesn't mean that I'm not in a position to answer some of the points that she has raised.
 She starts with a quotation from something that the then President of the Natal Law Society, Mr Frank Sithole, said about my handling of the General Malan case. Mr Sithole is here today. I believe that that press statement by Mr Sithole was the most unfortunate press statement to have been issued. It is incorrect. Mr Sithole and I worked together on a Liaison Committee in KwaZulu Natal, which is supposed to liaise between the advocates and the attorney's profession, and also with the Attorney General's office. I believe he was chairing that Commission at that time, and I was gladly serving under his chairmanship. Unfortunately, before the statement was issued by the Law Society there was no liaison between those who issued it and myself. If there had been, I would have been able to point out the inaccuracies in the statement. 
 The statement by the Law Society was also issued prior to the finalisation of the written judgment of the Court, and I suspect that it was issued on the basis of newspaper reports, which is never a satisfactory basis upon which to condemn a fellow lawyer. I wrote to the Law Society, asking for an opportunity to address them as a body, in order to put my case to them, showing up the inaccuracies in their statement. That request was turned down, but I was then told that Mr Sithole would agree to meet with me. I then suggested to Mr Sithole that the content of our meeting should be put on tape, and he let me know that that was not acceptable to him, in which case I decided that I would proceed with the meeting with Mr Sithole anyhow, tape or no tape. 
 The next I heard from the Natal Law Society was that Mr Sithole now believed there was no further purpose to be served by meeting with me. So, although I have put my case to them on paper, I've not had the opportunity to persuade them that their press statement was wrong. Now let me tell you why the press statement is wrong. 
 It is alleged that I failed to call certain witnesses who would have promoted the case against General Malan and others. That is so, that I failed to call the witnesses, it is not so that they would have advanced the case against General Malan and others. I don't believe that Dr Rayner knows the position in terms of South African law whereby a judge can comment on the failure to call witnesses, and can indeed draw an inference unfavourable to one of the parties to the case, if a witness is not called. The judge in this case stated in the judgment that he was not drawing such an inference, though he did add that he could have drawn one if he had wanted to. The drawing of such inference is in no way a criticism of the Prosecutor or the Defence counsel concerned, it is just past of the balancing that the judge has to do in the case when coming to his final decision. 
 The judge could not have criticised me for not calling those witnesses, because the judge did not have access to their police statements, nor was he present when I consulted with those witnesses. So, he had no knowledge of what those witnesses were going to say if called, and therefore he was not in a position to criticise me. Furthermore, I've asked the Judge whether he intended to criticise me in his judgment, and he has said that he had no such intention. He did not intend to criticise me for not calling those witnesses. He just mentioned it in the context of the possibility of inferences being drawn. 
 I draw attention also to the fact that the Defence could have called those witnesses, and that the Judge could have called those witnesses, if either the Defence or the Judge had believed them to be in the interests of justice. Neither the Defence nor the Judge called those witnesses. I mention that as a comment, just as the Judge mentioned it as a comment, that I hadn't called the witnesses but I don't criticise the Defence and I don't criticise the Judge because those witnesses would have taken our case nowhere. 
 There is Appellate Division authority in the matter of State versus Kelly, I think it was about 1980 in the Appeal Court which says that the State has the unfettered discretion as to its choice of witnesses, and it goes on to say that the Prosecutor cannot be expected to call accomplices whom he may rather want to cross-examine than to examine as State witnesses. 
 This was exactly the position with regard to people like Luthuli. I interviewed Luthuli in the presence of Colonel Dutton. Now, Dr Rayner says she hasn't consulted with Colonel Dutton in this regard, but if she had taken the trouble to speak with Colonel Dutton, Colonel Dutton would have told her, if he was telling the truth, and I am sure he would have that he and I had jointly agreed, having heard Luthuli, that there was no point in calling him as a witness in the General Malan case. 
 Now that is just one of the examples of these witnesses I am supposed to have called and I didn't. What happened in fact here was that the press who were following the General Malan case, heard certain things being said by the Judge and his judgment, didn't know the true legal position and came to a misunderstanding that I was being criticised for not calling witnesses. In fact, the judgment shows I wasn't being criticised and the Judge says he had no intention of criticising me. So the misunderstanding was not an understanding, but a misunderstanding. The Law Society then got onto the bandwagon and criticised me in the press for not calling witnesses. That was an unfortunate manoeuvre on their part, and I hope one day that they will acknowledge it. 
  All of the other witnesses I can give you detailed reasons as to why they were not called, and in fact there is an article coming out in my University journal in which I give detailed item by item answers to all the criticism of me in the General Malan case. I conducted that case with professionalism and absolute integrity and if anybody says to the contrary let him say so at this forum. 
 We come now to other parts of Dr Rayner's presentation. She has raked up a lot of things that have been thrashed out in seven hours of cross-examination of me at the Portfolio Committee in Pretoria - Portfolio Committee of Justice. The Masinga case was thrashed out from A-Z . The Romeo Mbamba case was thrashed out, the Portfolio Committee Members from the ANC side had access to the document which the seventy lawyers had put up and they cross-examined me on the basis of that document, so they were very well prepared, so that matter has been thrashed out in an appropriate forum and if we were to re-thrash it out in this forum it would take us days, and it would get us nowhere. Because so far as I know the Portfolio Committee on Justice has not made any adverse findings of Tim McNally in relations to any of the decisions upon which he was questioned in Pretoria - not one.
 And another point to bear in mind is that people don't have to blindly accept the word of an Attorney General, if they are not satisfied with what an Attorney General decides, the relatives or affected persons can bring private prosecutions. There hasn't been a single private prosecution in any of the matters upon which I have been prosecuted. I suggest to you that that speaks volumes. My decisions were correct. 
 As to members of the ITU being marginalised I most certainly don't say that Dr Rayner is lying, I am sure she is re-telling the truth, but in fact it is not true. They were not marginalised. I worked as a team with the members of the ITB and the ITU at all times throughout the preparation and the presentation of the General Malan trial. Advocate Kunig, for example, used to pick me up where I was living in the morning, he would bring me to the Supreme Court, we would discuss the case all the way. He sat with me at the Bar, not in a gown, but he sat with me at the Bar as an investigator for the whole time that he was present in South Africa before going to the Hague. When he went to the Hague, Howard Varney sat with me every time the Court got into session, he passed me a constant stream of notes, many of which I disregarded but many of which I also took note of and used in my questions or in my argument in the final stages. We worked together night and day, weekdays and weekends. There's no question of the ITU or the ITB being marginalised. Dr Rayner you are absolutely wrong on that point! 
 As to the ITU being dissatisfied with my presentation of the State case, I can tell you that when the application for the accuseds' discharge, I'm talking about the seventeen whose applications failed, the ITU and the ITB were delighted and I went to a social function with them afterwards and there was the greatest degree of camaraderie between me and my fellow Prosecutor and the ITU and the ITB. So this talk about them being marginalised is nonsense. The talk about them being dissatisfied with my work is nonsense. It's only when the case ended up in an acquital that the dissatisfaction emerged. 
 Now it has been said that I don't work sufficiently closely with the police, this is one of Dr Rayner's complaints, in KwaZulu Natal, but we must remember that the General Council of the Bar had a complaint in its presentation to this very Committee, that in security cases there appeared to be a too cosy and close relationship between the police and the prosecution. Now we're damned if we do, we're damned if we don't. 
 My personal belief is more in line with the criticism of the Bar, my personal belief is that there should be a certain armslength between a policeman, whose function it is to investigate, and a prosecutor whose function it is to objectively present evidence in a court of law. That doesn't mean that they can't cooperate and work together, but there must be a certain distance, in my opinion. Also we have to prosecute the police as I have said in my presentation, and our ability to do so could be compromised if we became to cosy or close to individual policemen. So there are two sides to that story, and what I did in Kwa ulu Natal is what I was asked to do in Kwa ulu Natal, namely to provide this unique and special body, the ITB and the ITU which was the first time that I know of that a number of attorneys were appointed as a Board to supervise investigations and inter-political violence. my contribution that was asked for was to give Karl Kunig to that Commission to give legal input. I readily acceded to that request and he gave that input for as long as he was in South Africa until he went to the Hague. 
 Then I was called to Pretoria one day, by the Minister of Justice, I didn't know the reason. He introduced me to Minister Mufamadi and Minister Mufamadi asked me whether I would be so kind as to provide the ITU with a second state advocate, and he specifically mentioned Advocate Batoi as the person whom they would like to have. After consulting with my Deputy in Durban, I told the Minister that I would also allow Advocate Batoi to be seconded to the ITB and ITU which she was and she worked with them until their dissolution. So, Tim McNally did in respect of the ITB and ITU whatever was asked of him. And it's not as though the Police and the Prosecutor were totally separated in their investigations, in fact two of my staff were working with them as investigators on a full-time basis. So, we've played our part as we saw fit and as we were asked to do.