Special Hearings — Legal Hearings — 1997-10-27

MR VALLY: So those review powers were never invoked?

MR DU BRUIN: No.

MR VALLY: Now I'll just ask you a few more questions about this board of review. Part of the problem with the review is you didn't know that your client's matter was going to be reviewed.

MR DU BRUIN: No his attorney could be present.

MR VALLY: How would he know?

MR DU BRUIN: Well he was informed by the review board before the time that his attorney could be present.

MR VALLY: For the section 29 detentions?

MR DU BRUIN: Yes. Look section 29 detentions only came up for review I think it was after six months. But in the case of detentions in terms of section 28 and restrictions in terms of section 19, 20 and 21. There were no problem at all.

MR VALLY: Because there is an instance of an advocate who took a chance and appeared and was fortunate enough to actually get access to a judge - I'm relaying a story. And he was asked to give reasons why his client should not be detained any longer. And he said: " Please tell me why you're detaining him in the first place?" And he was advised that; " we do not have to give you reasons for his detention." I'm trying to understand this that you made representations to why a client should not be detained. But you were not given the reasons as to why he was detained in the first place.

MR DU BRUIN: Well the reasons were supplied or furnished by the South African police and not by the director of security and legislation. Because the police detained the person and they kept him in custody and informed him according to instructions by the minister of law and order and also as required by the act of the reasons for his detention.

MR VALLY: Well it was a standard thing that you are a danger to public safety; "We have reason to believe." That kind of standard statement.

MR DU BRUIN: No, now look section 29 was used to detain people for questioning in respect of the commission of certain offences. And he was usually informed that they suspected him of having knowledge or himself committed an offences and they are wanting to question him.

MR VALLY: But they didn't tell you, you have done allegedly this, this and this and therefore we are detaining you?

MR DU BRUIN: No we will not be able to tell that or confirm that. That's a matter for the police to come and tell the commission.

PANEL: Just if I could just come in there please. Quite a number of us ironically acted for people who were detained in terms of section 29, we never received a single notification, my office certainly didn't that someone's review was coming up and that we had a right to make representation. Telling the client, the person who is being detained who is being held incommunicado that he had a right to tell his lawyer is all very well but no one could have any contact with him besides the police. So what was the point of that?

MR DU BRUIN: I can't speak on behalf of the police but as far as I know they were instructed to inform the detainee well before the time that his case was coming up for a review and he should arrange for some representations to be made to the review board or I don't know. But I'll go back and check the records of what they actually did. I doubt whether we would find it on our files. We will have to get to the police's files.

CHAIRPERSON: I think it's quite important because you see it's dealt with under the department of justice and of course one assumes that one of the things that the members of the board would certainly want to establish is whether or not the detainee's legal representative has been informed. And I think that the experience of most practitioners at that time was that you often only knew long afterwards. You were never in a position to represent your client at those proceedings.

MR DU BRUIN: What we can do and will do is to get out all the files of the cases that went to the board of review and we can check up who the legal representors were, what otherwise the cases were.

CHAIRPERSON: Thank you.

MR VALLY: Thanks we appreciate that. I want to move on from the review board now.

PANEL: If I may just ask one question here on the review procedure. It seems that in every instance the detention was confirmed by the review board?

MR DU BRUIN: Yes the section 28 detentions and all the 29 detentions.

PANEL: But at the same time the practice developed where they recommended or demanded the release for that release by specific dates. Was that the way of showing that they should not have been detained in the first place or? Why this funny kind of practice?

MR DU BRUIN: No. I think in one case, a section 29 case the board of review recommended to the minister of law and order that the investigation should be completed as soon as possible and the detainee released. But in the case of the section 28 detentions you will recall the Nkondu case, we made mention of that. I think there were 23 persons involved. The others were a single one here and a single one there and in most cases it was recommended that detention was justified but steps should be taken to minimise the period of detention.

PANEL: We're talking about a number of about 600 detentions that you've given us information on here but in no single instance was the detention not confirmed.

MR DU BRUIN: I think we are confusing the matter here. Because

PANEL: Please if you could explain to me?

MR DU BRUIN: The 28 detentions there were about 48. It's restrictions, section 28 detentions and then section 29 detentions. You will see that the section 28 detentions are far in the minority (...indistinct) page 43

PANEL: I'm not sure that you follow my question.

MR DU BRUIN: Page 43 there were only 35 detentions in terms of section 28.

PANEL: I'm not sure that you're following my question. I am referring to your statistics on page 48, 49 dealing with both section 28 and section 29 detention. You give them year by year and the result in every instance is all the cases were confirmed. And then with some rider. So it seems as if never the detentions up to the full period of the six months was ever questioned by the review board. That's really the.

MR DU BRUIN: That is the actual position but in some cases I can recall they recommended that the investigation should be completed as soon as possible and the detainee released. You must just remember that the statistics here given in respect of some of the detentions and restrictions could have been in respect of the same person or persons. Because persons were restricted for more than a year and they had to be reviewed every year.

CHAIRPERSON: May I just ask a question because I think the point that's being made is that it seems that the review boards basically were just confirming whatever was being placed before them and exercised no discretion or any real sense of review.

MR DU BRUIN: Well I do not want to speak on behalf of the members of the board at that time but they called in the police investigation officers and asked them for their reasons for wanting to detain the person for a long period. In each and every instance they called in the investigation officer.

CHAIRPERSON: May I just ask this question? Did any official from the department of justice sit in these proceedings? Were any of you in fact involved in these review proceedings?

MR DU BRUIN: No. There were only a secretary who did the recording at the time. No one of us attended those meetings.

CHAIRPERSON: Thank you.

PANEL: May I just press this with another question really? Because I'm confused by this. It seems to me that in every instance the detention for the full period of six months was approved and confirmed by the review board?

MR DU BRUIN: Yes.

PANEL: In every instance?

MR DU BRUIN: Yes.

PANEL: But in a large number of cases specific dates were determined by the review board for the release of detainees. Was that a face-saving exercise for the detention?

MR DU BRUIN: That I can't say to you.