Special Hearings — Legal Hearings — 1997-10-27

MR VALLY: : Madam Chair, I need to ask a few questions together because I'm going to be put under time pressure, but I'm very disturbed still by some of the responses going on here. I've got letters from Senior Council of the Bar, we've heard Nadel's submission. The reality is that you put people in jail, fathers whose children were being charged, their siblings and these people were used as a means of pressurising the people who were accused and used as witnesses against them. That's the first thing.
 The second thing is this, that these provisions in the Internal Security Act, these proceedings were used to maintain an iniquitous, oppressive and cruel system.
 Thirdly, that you people were in a position of power, where this very state gave you that authority, which you used, and I say you used as a fact because we know from trials, this is what happened, and just when democracy was imminent, you had the Attorneys General Act of 1992 passed, making you independent, all this time, the Minister could substitute these decisions. Now the Government sees, things are about to change, we make you independent, you stay in office until you 65, certain exceptional situations where you can be removed by Parliament. And you still come tell us, the very people who were appointed by the apartheid state, and we didn't hear your voices, we didn't hear your voices at all you have now the temerity to tell us, bulwarks against Government action etceteras. Surely, the very fact of your lack of action is justification for a need to balance independence with accountability, because your very actions at the times when you were Attorneys General proves the need for this.

AG: Madam Chair, can I answer the last one about why this Attorney General Act with the independence came through right at the end of the regime. The short answer is that the Society of State Advocates, which is our body, our professional association at least by 1986 I can recall and - 1984, correction in 1984 we had our first or second AGM, and there was a proposal there and somebody was delegated to come with an Act to make us independent. This was a proposal we made in 1984, the thing was to and fro the whole time about the exact wording. It was our strong recommendation that that should be done, the Government than came with this law in 1992, so it wasn't as if we came in 1992, and said please you know, things are now changing, you better make sure there's an Act like that. This is a proposal that had come from at least 1984.

AG: Madam Chair, with respect to the questioner, there were about five items strung together, and I have difficulty in placing the connection. The first point I missed altogether. Is it alleged that I in the jurisdiction that I was in, locked up a child or a parent to influence someone else? I'm not quite following. Is this an accusation? Could I have specifics of that? Or is it just a generalisation which I cannot answer? If I could have clarity on that first point please?

MR VALLY: : This submission was made to use by Nadel in terms of how these sections were actually used.

AG: I have not had the benefit of seeing that thing. I can certainly not recall ever using one against the other in the sense that it happened. If it is so, it is to be decried. One can say, looking at it in the political brush-work, proceedings were used to maintain an iniquitous system. Yes, if you're looking at it clearly, it is so. The whole panoply of security legislation was used to maintain an iniquitous system. Non constat however, that those who had to apply it were therefore guilty of abuse of power. I think that you must make the distinction between the legislation that was there to maintain an iniquitous system, and the application, as I've endeavoured to set out, in circumstances where we had to try to be common law lawyers. I think there is a distinction between the two.
 As for independence and accountability, of course there must be accountability. It is what we strove for, as my colleague said. We strove since we as a generation came into the AG's. We wanted this change because independence was taken away in 1926 by the then Nationalist government, who exactly as now needed to take control of the Prosecution. That had been done by Section 179 of our Constitution, and we succeeded in 1992 in getting accountability to Parliament. I can be summoned at any time by Parliament to explain, and I welcome that. That has been taken away now. This new Constitution has taken it away. It's not in the new Prosecuting Bill. 
 That's why I asked, and I refer on the penultimate page of my submission, in 1972, Van Niekerk and Matthews commented on the absence of a formal or substantive separation of power between an Attorney General and the Executive, remarking that direct or indirect influences are possible, they say, I quote, 
"One's again we are not suggesting that the Attorneys General do submit to these influences, but we are certainly of the opinion that there is no institutional guarantee which would prevent such influence from being exerted, and perhaps even heeded."
It's precisely because we were in the firing line by people such as these who were saying, " you must your house in order, " that we moved to get the house in order which was not to say that we were getting instructions to do any particular things. We then moved and tried to get the institutional independence plus full accountability. At the moment we have lost the institutional independence and we've lost accountability and I think, and that's why I say we must look at very very carefully at our Constitution now. It's no good trying to patch it up with the National Prosecuting Bill. You have taken away independence, and you have taken away accountability. Each one of us should be able to be called up to Parliament any time the people want. At the moment they can, after the Constitution is put into effect by the new Bill, you can't.

YASMINE SOOKA: : Mr Vally are you going to very much longer?

MR VALLY: : Alright, I'm trying to ask questions and enter into the debate... (intervention)

AG: : May I just comment something in regard to what my colleague had difficulty with understanding, and called it generalisation in the beginning .
 Madam Chair, if during a prosecution it is sometimes necessary to use the witnesses that you can find, then sometimes you use those witnesses. Mr Vally's question reminds me of walking along the verandah in the old Kimberley Supreme Court, the old Kimberley Court, and sitting there was a young woman and an older man, and they were conversing, and I just overheard this quite clearly. They were discussing a case in which somebody was accused of illicit diamond buying, and the young girl found it completely unacceptable that the black person could be used as a witness against the white person. So you know, we've got this kind of perspective always, and it depends very much on the particular situation, and it depends on the crime that you're busy with, and it depends on your case that you're dealing with. We would far rather deal with the specifics than with generalisations,

MR NEL: Madam Chair, could I just come in on this one aspect of the bail certificate legislation. In Transkei as I said there were a succession of black governments under which I worked, and they didn't repeal that legislation. They used it.