Special Hearings — Legal Hearings — 1997-10-27

KLAUS PETER CONSTANTIN OTTO VON LIERES UND WILKE: Thank you. Madam Chair I have prepared a short submission, I'll make a copy available to Miss Lou, if you think it is valuable enough you can photostat it later. My apologies for addressing you as Mr Chair in the papers, I didn't know Madam Chair was going to preside.
 Madam Chair, I was an Attorney General since 1981 and was the first Attorney General appointed to the then newly established office of the Attorney General of the Witwatersrand local division in 1983. That appointment I relinquished some two and a half years ago in May 1995. 
 My presentation to you will draw mainly on my own experiences over some fourteen years in that capacity. They may not necessarily be the same as the experiences of the other Attorneys General due to the fact that local circumstances differ as between the Attorney General and the Attorney General's area of jurisdiction. 
 I'd firstly like to make the point that, when I joined the Department of Justice, the prosecution as a career option in the Magistrate's Court was non existent. It only became a slow developing career option at the insistence of mainly the Attorneys General of my time who persisted in their standpoint that prosecutors in the Magistrate's Court should be entitled to choose to stay in the prosecution, if they so wished. 
 As far as prosecutors in the division Attorneys General is concerned, this of course was never an issue, but it is a historical fact that they faced a truncated career and that advancement to the bench was not for them.
 In those days Madam Chair, the prosecution in the Magistrate's Court was considered simply as a stepping stone to an appointment as a magistrate or to being absorbed or transferred to some other section in the Department of Justice. It was recognised and it served as a training ground for the many advocates and attorneys who went into private practice and in fact quite a number of our judges also started their careers as prosecutors. Because prosecution had not been identified as a career option in those days, prosecutors in a Magistrate's Court by and large were more prone to follow the lead of a magistrate than to act independently. Naturally, they were also rather inexperienced as a manpower crisis started to develop from the 1960's onwards.  People of colour only appeared as prosecutors from the middle 70's onwards. 
 Having identified the problem we set about establishing the prosecution as a professional career within the Department of Justice with the help of head office and with the help I must immediately say, of many Chief Magistrates who recognised the necessity that the prosecutor should be independent, that is professionally of course.
 To succeed we had to change the mindset and nurture the concept of professional independence. In this I believe we have succeeded to a large degree. However, Madam Chair, the prosecution was never an ideological body. It was never ideologically schooled or trained, on the contrary, it consisted of people of widely divergent backgrounds and political beliefs; of people of differing religious persuasions with some who enjoyed job satisfaction and others who saw it simply as a means to gain some experience before they branched out into the private sector. And may I by way of illustration mention to you that we had prosecutors from all universities in the country whether it was Wits or Rhodes or Stellenbosch or Cape Town or wherever they were all there, Unisa and so forth. The perception being promoted Madam Chair that the prosecution was a monolithic organisation that one-sidedly supported apartheid is, of course in my respectful submission, utter nonsense. What is true, however, is the fact that the prosecutorial professional independence developed much faster in the more densely populated areas such as for example the WLD and elsewhere as a result of the concentration of numbers and easier accessibility. The same degree of professionalism was not readily realised in the rural areas for obvious reasons. Police were still employed as prosecutors in some outlying rural districts. We the WLD exercise the hands of policy and management system which enabled us to develop the prosecutors faster than was the case in the rural areas. 
 I now want to deal with the prosecution of security offences. Now, Madam Chair, the prosecution of security offences constituted a very small percentage of all the cases that the Attorney General dealt with on a daily and annual basis, probably all in all it never constituted much more than some three or four percent of the total volume of cases prosecuted if that much. Seen against the background of the small volume of security prosecutions the vast majority of prosecutors never ever prosecuted in such case, not to mention the fact that they never saw a docket related to such cases. 
 In makings wild statements as I've read that the prosecution supported apartheid, generally Madam Chair I believe sight is lost of the fact that security legislation, such as for example, the Suppression of Communism Act of 1950, provided that matter such as restriction or banning orders or the enforcement of the non publication of certain banned persons names and utterances was dealt with administratively by some official appointed in terms of the Act. These numerous activities which undermined and impinged on the freedom of the individual were dealt with administratively and not in courts of law by the prosecution or by the prosecution. In fact, Madam Chair, they fell completely outside the scope and domain of the function of the Attorney General. The prosecution would only be called upon if some order or other, some administrative order or other in terms of any particular Act had been contravened, whatever the case may be. I mean I don't need to remind you of prosecutions for contravening banning orders which we all know about as such an example - it's only in that situation that the prosecution would enter into upon the scene. There were not too many of these prosecutions either and they became more and more infrequent as time went on.
 Madam Chair I can assure you that the day to day working of an Attorney General did not concern itself with plotting to uphold the State, nor with plotting to destroy the opposition. There simply wasn't time for such luxury, bearing in mind the fact that we were virtually continuously short of staff and of the necessary means to perform our function properly. 
 The Attorney General's time went into administering appeals, attending to numerous representations, reviews and prosecutions and so forth. Most of the victims we represented in court were black. Let me say immediately that in endeavouring to provide the service expected of it the Prosecution found itself between "skiller en keruptes" as the liberation struggle continued with increasing intensity. The justice system had become one of the major targets in the Revolutionary War the country found itself sucked into in the battle for the mind of the population. Revolutionary Propaganda such as, and I quote "white minority racist legislation to oppress the masses or death to the traitors" described part of the Propaganda War and the ongoing attempts to discredit statutory enactments aimed at combating security related offences. 
 The Propaganda was also aimed at discouraging cooperation with the judicial system and met with a marked degree of success, so much so Madam Chair, that eventually we all know people's courts started operating in some of the so-called 'liberated areas", so much so Madam Chair, that no-go areas were established where ordinary law and order could not be maintained. 
 Similarly intimidation of witnesses which was a liberation movement strategy led to provisions being enacted by the government of the day to detain witnesses which in turn again fueled anti-justice propaganda. We have here a typical example of action and reaction. The mainly psychological warfare directed against the State and the State's countermeasures or absence thereof obstructed efficient delivery by the Prosecution and the Criminal Justice System. In this process as we all know, much credibility was lost. 
 At the same time Madam Chair, Attorneys General were bound to uphold the legal system and had to discharge their duties without fear or favour. All applied the same law and strove to maintain their professional independence each in his own inimitable way. For example my ex-colleague from Natal, on behalf of all of us in those days, protested the previous ministers' release policy of prisoners as the setting free of so many prisoners would only impact negative lybeyond the already weakened prosecution. 
 The virtual diatribe being conducted on an on-going basis against former members of the prosecution and its carry over incumbents by people who should really know better is to be decried in the strongest possible terms. Allegations, Madam Chair, such as that, " Generally Attorneys General used their powerful discretion in political trials and security related cases to uphold and strengthen the apartheid system" is just with respect so much codswallop. 
 Attorneys General dealt with cases referred to them. We also instructed investigations into many matters of which we read in the press and on television. I myself as an example was accused by the then Minister of Constitutional Development in 1988 that I was undermining the government because I refused to prosecute squatters in the Katlahong area. I invited the Minister to do what he thought he should do if I was a person who was undermining the government, but to date I haven't received a reply. 
 Now Madam Chair and the WLD, we seldom prosecuted Group Areas contravention's and our evidence before the then President's Council we believe played an important role in them accepting the status quo. 
 Another perception which I think needs to be addressed is the fact, or the allegation that Attorneys General did the bidding of Ministers or the Government of the day. The fact of the matter Madam Chair is that it is the duty of an Attorney General to receive representations from the public at large, from anybody in fact who wishes to make representations. It's the public's right, it's a ministers right to make representations to an Attorney General in a particular matter. We all know that representors do make such representations in the hope that they can persuade the Attorney General or for that matter his delegatee in the district, the Senior Prosecutor, to take a decision which would be favourable to the representors cause. This is quite normal, it's accepted. There is nothing that prevents politicians from approaching an Attorney General and making representations to him, but the acid test is how the Attorney General reacts to such representations. 
 And I want to say to you that as far as my staff and I were concerned we looked at the facts and not at the ideology of every representation that was made and we came to a conclusion of that particular basis and not because we supported the one political policy or the other. 
 Now let me illustrate how these representations actually worked. Prior to the last all white election I was approached by representatives of each political party, independently of course, asking me to institute some prosecution or another in their area, in their constituency in terms of the Group Areas Act. Now, these requests were not acceded to. Representors Madam Chair, tried to use the prosecution to promote their own ends and that is their good right to do so. It is also the duty of the prosecution not to allow itself to be used. For that reason Madam Chair being possessed with an unfettered discretion and being independent is vitally important in the discharge of the function of the Attorney General.  It is therefore a pity, and my attitude about this is well known, I believe that it has been decided that the Attorney General's independence should again be restricted by the introduction of the National Director of Public Prosecution who may as the constitution stands now, in fact be a political appointee without any legal qualifications whatsoever. I'd submit to you Madam Chair that society is best served by having independent Attorneys General. 
 As I've said in the Witwatersrand we did not while our time away plotting strategies to uphold the government or to destroy the opposition. We simply didn't have the time for that. Apart from normal crime we had a large practice concerned with white collar crime. We had a special commercial section which had been established to deal with that, so too Madam Chair we had a special fraud unit where we trained police investigators and prosecutors who specialised therein and were quite successful with that. 
 Madam Chair, on the matter of training we presented numerous lectures and ran training ventures throughout our area of jurisdiction to prosecutors and to the police. And I think it's important to say that our training files will show that we consistently emphasised that all action had to be conducted within the framework of the law and certainly not beyond the framework of the law. These principals were consistently applied. 
 It is naturally that we issued certificates preventing people from being released on bail. As you well know this extraordinary power that Parliament gave to the Attorney General drew a lot of flak, and eventually it was whittled down and finally removed. I think the first signs of the whittling down came with in 1977 Criminal Procedure Act and then subsequent inquiries. I must say I wasn't sorry to see it go. It was not frequently applied in the WLD but there was the odd case where one was forced to issue a certificate. And may I say that I believe in all those cases we issued a certificate that a court of law would have refused bail in any case. Our certificates were not issued on the basis that this is an ideological opponent of the State or whatever and therefore this person had to be detained but were issued on the facts of a particular case. 
 Similarly Madam Chair we also from time to time ordered the detention of witnesses and may I point out often at their own request. Witness protection programmes were not in place then, that came about only later. 
 I am here today Madam Chair, because I believe that it needs to be said, that we owe a debt of gratitude to many of the fine prosecutors, past and present who discharged their prosecutorial task with integrity, courage and professionalism. I believe that they have been severely maligned by unfounded generalised propaganda such as that, "the prosecutorial services became a major instrument of repression", that in my experience is simply not the case. 
 The suggestion made in another document that Attorneys General use their powerful discretion for political trials, in security related cases to uphold the apartheid system is equally untoward. We took our decisions to prosecute or not to prosecute on facts and not on the basis of ideological conviction. Had the latter been the case, Madam Chair, I can assure you that our reputation as competent prosecutors, which incidentally many of us cherished, would have been severely dented. 
 The idea that we prosecuted in security related cases to strengthen the apartheid system and to uphold it is not supported by the objective facts, at least in respect of the WLD and I want to believe in respect of all the other Attorneys General as well. We prosecuted because an offence was committed and because there was a sufficient case made out. Let me tell you Madam Chair that in the WLD we virtually reinvestigated every case to make sure that the facts would stand up o the acid test of cross examination.
 In conclusion Madam Chair, bearing in mind the constraints of our function, which embraced the duty to prosecute in appropriate cases there is no substance to suggest that Attorneys General played an active role to keep apartheid standing. We discharged our functions dispassionately and objectively under very difficult and trying circumstances. 
 What we did is a matter of public record, a few examples will suffice. We prosecuted security police officers such as Van As in 1984, we prosecuted police officers for the murder of drug addicts such as Ferdie Barnard and his colleague Sergeant Botha. We prosecuted persons of the ilk of Derby-Lewis and Walus for the assassination of Chris Hani. We prosecuted the AWB for their bombing spree in the 1994 election campaign and for other deeds of terror and murder they committed. Members of Parliament didn't escape our scrutiny either and one National Party MP was prosecuted for election fraud. Mrs. Mandela was also prosecuted in the Sepei matter. We also extradited white collar criminals such as Rademeyer of Eskom fame or Mr Schaeffer of the Trustbank fame back to Johannesburg to stand trial. I've just mentioned a few examples. We prosecuted Barbara Holden, the Spargs, Helen Pastoors and many other which I don't think is necessary to list the number of prosecutions because I just want to make the point but I believe it's a matter of public record that we acted even-handedly. 
 I submit that the conduct and execution of our function does not permit the inference that the prosecution was either biased in favour of the State or against the State and it's a pity Madam Chair that this widely-held perception exists. I look forward to the Truth and Reconciliation Commission finally laying this ghost to rest. I thank you.