Special Hearings — Legal Hearings — 1997-10-27

MR EBRAHIM: I will try to be brief.  I think that the point being raised about judicial discretion is quite considerable.
 If I can then deal with the question of the judicial discretion subsequent to that, it is now trite that subsequent to that there was an inquest at which the magistrate found that the police were responsible and thereafter the Attorney General, despite compelling evidence that the policemen had acted unlawfully and excessively refused to prosecute the matter.
 The trial judge in this particular case had made certain assumptions and findings and I will deal briefly with some of them.
 He found for example that the fatal shots that had been fired at the crowd was fired in a forward and downward direction and at the time the deceased, in this particular case Shaun Magmoet, was facing away from the direction and in all probability running away. In other words the predominating amount of shot on Shaun Magmoet's body was in his back. The probabilities, the judge found, pointed strongly to the deceased not having been involved in the stoning of the truck. The judge accepted as a fact that no warning of any kind was given by the accused on the truck prior to them opening fire.
 The court also found that the shot used by the police was relatively heavy and it was so obviously dangerous to life that there was an irresistible inference that each and every one of the accused subjectively knew of its lethal potentiality. The judge also said there is a substantial body of evidence which points to the existence of the purpose of the operation being illegal and namely a punitive expedition.
 There are strong indications, he said, of a common purpose on the part of the accused to act illegally. The whole intent of the operation was so obviously to present would-be stone throwers with an apparent soft target that the truck was likely to be attacked. It is so obvious the judge said, that it must have been anticipated by all the accused that there would be an armed response to the attack. He also found that the operation had quite clearly been specially planned. 
 Despite these factual findings, despite the uncontroverted evidence presented by the prosecution and the fact that the killing of the deceased in all the circumstances was not justified on the basis of either self defence nor necessity, nor pursuant to the provisions of Section 49 of the Criminal Procedure Act, the judge acquitted all the accused.
 The trial court in discharging all the accused on the basis that the prosecution had not proven beyond a reasonable doubt a common purpose on the part to commit murder, made a number of assumptions in favour of the accused and ultimately the executive despite the absence of any testimony on their part. Some of these assumptions were the following: 
 The police were confronted with an exceedingly difficult situation which was deteriorating which required some drastic action. A resort the judge said, to the unconventional would not in the circumstances be altogether unexpected. One would have expected that with 39 shots of mainly triple A ammunition fired from nine trained men at virtually point blank range, the loss of life would have been far greater than it was.
 The trial judge also found that there was a certain improbability in high-ranking officers planning an operation that was to their knowledge illegal. I think today that the Commission knows the extent to which high ranking officers well knew and were part of covert operations of this particular nature.
 What vindicates the view of NADEL and the attorneys who acted in this matter are the comments of the Appellate Division and in particularly the comments of Justice Corbett regarding this particular matter. He said, and I quote: 
"Another Court seized of the case on the merits may well have concluded that these strong indications taken in conjunction with the failure of the accused to enter the witness box were cogent enough to secure the conviction of the respondents."
That is our Appellate Division. The matter had been taken on review or certain questions of law had asked to be reserved and I am not going to burden the Commission with what those questions of law were, but one of them related to the admissibility of evidence of one of the accused. The Appellate Division found that the trial court had incorrectly rejected the admission of that evidence. The Appellate Division accepted that it, in its turn, was seized with a discretion as to what to do in that situation. Did it order a re-trial of that particular accused bearing in mind the violation of the rights, in this particular situation the fact that there were children involved, the Appellate Division nonetheless decided that it was not going to order a trial de novo and that it would not reverse the acquittal at least of accused 4, one of the accused in the matter.
 If I can just make one final point, Chair. We have spoken a lot about the role of the judges in this particular situation and it is quite clear that judges held a profound position in the judicial system. What we mustn't lose sight of, however, is the fact that most of our people's experience of the justice system was predominantly at a lower court level. We mustn't lose sight of the fact that some of the basic and fundamental violations of the rule of law actually occurred at a magistrate's court level where people were denied their rights to legal representation prior to our constitution, where people were not treated with dignity and we ask the question as well - why have the magistrates not come forward? They were the ones who prosecuted innumerable public violence offences. In many of those cases the attorneys who acted on behalf of those accused were as much on trial as the accused themselves and we ask the question - why are they not here as well? 
 Thank you.

CHAIRPERSON: I hope you don't feel too thwarted?

MR EBRAHIM: Absolutely no.

CHAIRPERSON: Your face was worrying me.  Thank you very much.