Special Hearings — Legal Hearings — 1997-10-27

MR NEIDT: Chairperson thank you. Honourable commissioners thank you very much for the opportunity. We have made a full submission on behalf of the department of justice. The submission was prepared by myself, my colleagues and also with the assistance of the planning unit of the department of justice.
 So the submission you have before you is for the department of justice as it existed prior to 1994. You're probably aware we've received a request from the commission to deal with the department of justice since 1960 up to 1994. The minister dealt the other day with the position since 1994. Now since 1960 you're aware when we were one department of justice I presume there arose another ten departments of justice for the so-called independent homelands and six self-governing territories each of them with their own department of justice and their own ministers of justice. Although I must point out to you that the self-governing territories I think were still subject to the control of the attorney general. The independent homelands had their own minister of justice. And I must just bring it to your attention at this particular point in time that we don't have full submissions as far as those aspects is concerned. So I will be dealing with the department of justice since 1960.
 You must also realise that 1960 was a long time ago. I had to look up and make sure whether I was in the department of justice at that time but in fact was. But of very, very little significance. This particular submission is to give an account of the history of the department. It is not our role to defend or to justify the department's record. It's our intention to recount the role of the department during the Apartheid years for the express purpose that we do not repeat the mistakes that were made in the past. We've tried to be even-handed in our approach. We've not vilified individuals. Indeed individuals have not been named in our submission because we do not believe that it is necessary to do so. We want to build and not to destroy. We have therefore tried to match our honesty with sensitivity.
 I'll just highlight from here on. The administration of justice as you may be aware since 1999 placed the administration of justice throughout the Union of South Africa under the control of the minister of justice as the political head of the department of justice. And since that time until the interim constitution parliament was supreme. We've heard that already over and over again. So that is nothing new to you. But parliament was supreme and parliament could make laws at their own will. 
 I won't deal with the details except to say that at one stage that the department of justice, the minister of justice was also the minister of police. Later on from September 1966 until April 1974 the minister of justice was also again the minister of prisons. And from May 1974 to June 1979 also again minister of police. From 1980 to 1990 the prison service was part of the department of justice. They fell under the same minister.
 We've given you some details as to the appeal court. The only new court brought into existence by the South Africa Act was the appellate division which became the common appeal court for all the provinces. There were limited rights of appeal from the appellate division to the privy counsel until appeals to the privy counsel was abolished by the privy counsel appeals act 1950. The superior courts we name them. Then I go to just point out that after granting sovereign independence to Transkei, Bophutatswana, Venda and Ciskei a high court was established in respect of each of these newly proclaimed independent states. The high court of Transkei had been seated at Umtata. I won't go into all the seats of the various divisions. The appellate division of the Supreme court of South Africa however remained the appeal court for appeals for all these new high courts. This change made through, with the except of Venda the other states established their own appeal courts. These appeal courts were abolished by section 241 of the interim constitution of 1993. 
 I won't go into detail as far as the lower courts is concerned except to say that we had a magistrates courts, that's the district courts and the regional courts. They were proclaimed in terms of specific acts which gave them their jurisdictions. Jurisdictions of these courts were raised from time to time until eventually the regional courts had jurisdiction, had greater criminal jurisdiction than district courts. In criminal matters the district courts had jurisdiction over all offences except treason, murder and rape. The regional courts ultimately had jurisdiction over all offences except treason. 
 Magistrates courts were in terms of the inquest act of 1959 empowered to conduct inquiries into deaths apparently occurring from causes other than natural causes. This included deaths in detention. Magistrates also performed a number of agency functions which I listed for you. I think that to a certain extent it may be said that magistrates was as far as the agency functions was concerned also the representative of government. Especially in the rural areas. In such an office the magistrate of the district was responsible not only for both the criminal court work and the civil court work but also bore ultimate responsibility for all the above-mentioned administrative functions discharged by his office.
 Then chairperson there were the special courts for black people. Besides the ordinary lower and superior courts special courts were created for black people during the Apartheid years. These courts dealt with civil disputes between black people. In their decision the courts could refer to traditional law and custom as long as these were not in conflict with the principle of public policy or natural justice. These special courts were not administered by the department of justice but by the department of co-operation and development. There were four courts in this regard. The chiefs courts, the commissioners courts, the appeal courts for the commissioners courts and the divorce courts for black people. Just recently we introduced legislation to deal with the divorce courts for black people during the course of this session. This section has described a statuary creation of the legal system. 
 Chairperson I just want to point out that as far as the special courts for black people and I deal with that in my submission later on, there's was quite a long tug-of-war between the department of justice and the then department of co-operation and development. This particular department had various names I couldn't keep track with all the names it had. But throughout as far as I know and since I came in the department we were not happy with the fact that they had two systems of justice. One for black people and one for white people. Ultimately in 1979 the Hoekstra commission was appointed and the Hoekstra commission specifically dealt with this aspect. And the Hoekstra commission said we couldn't carry on like this and these courts were then abolished and they came to the department of justice as far as their court functions are concerned. But as far as the administration was concerned they were still part of the then department of co-operation and development. But as I said long before this we've got a pile of correspondence as far as this is concerned which I can make available to you in this regard. 
 And one of the reasons, and I think you'll probably ask me on this, one of the reasons for not employing - sorry to use the term again, black people in the department of justice was the policy was at the time that black people must be appointed in the department of co-operation and development and not in the department of justice. And after these courts were abolished we went back to the public service commissioner and we said to the public service commissioner but there is no reason why we can't appoint black people any more. And you must just realise the prescripts at the particular point in time were prescribed by the public service commission. Which was very powerful and told you who you can employ, at what salary and for what specific purpose. 
 And eventually I think in 1986 they agreed that we can appoint all people. And since then the department of justice became available to all people of this country. I must say that this was one of the aspects that, as far as we are concerned which gave us a lot of headaches and we're really were very happy when we ultimately reached a stage where we could appoint anybody who applied for it. Because one of the problems we were battling with in that particular point in time was the fact that we didn't have enough prosecutors. If you look at the first or the second Hoekstra interim report you'll find that judge Hoekstra were complaining about the fact that we had such a shortage of prosecutors and we couldn't appoint people of colour. Well one of the reasons was obviously the salaries. Mr D'Oliveira this morning referred to the salaries. I can keep you busy for hours around about the salaries of prosecutors.
 The next aspect I want to deal with is the role of the minister of justice. The minister was the political head of the department of justice and as such it was his function to carry out the policies of the government of the day. The government at the time enacted a number of statutes that are generally referred to as the security laws. In general these laws were aimed at and I want to quote: "ensuring the security and maintaining public order," unquote. They gave various powers, functions and duties to the then state president or the minister of justice. Among these acts were the suppression of communism act of 1950, the public safety act of 1953, the riotous assemblies act of 1956, the unlawful organisations act of 1960, the terrorism act of 1967 and the effective organisations act 1974. All these laws were administered by the department of justice.