Special Hearings — Legal Hearings — 1997-10-27

UNKNOWN: : Five minutes. I think the inquests, there were several inquests where nobody was found responsible. The inquest of Ernest Dipali when he was found hanging in his cell; the inquest of Johannes Malatji who was shot at point blank range in his forehead while he was in detention. The policeman was found guilty of culpable homicide, sentenced to ten years and I understand later that he barely served a year in prison.
 The inquest of Sipho Motsi, a Cosas leader, who was arrested and a few hours later was found dead. And the post-mortem revealed severe injuries on his body but the chief magistrate from Welkom, who was presiding found that no one was responsible. 
 In the inquest of Mandla Shabangu where Advocate Tomkin personally gave evidence to show that the shooting was unjustifiable, in spite of that no one was held responsible.  I also would like to pose some questions. In my experience I did not know of any magistrate who supposedly visited detainees as required then and who assisted detainees and made reports of any torture or maltreatment or assault whatsoever. I think here too in my experience very few judges who could, visited detainees during that period, and if they did I'm not sure if anyone really came out and made a report and made public of their report and made efforts to come to the assistance of such detainees.
 It was also a pattern in those days in courts to use parents and family members, husbands, wives, children, brothers and sisters as state witnesses and put the accused persons in very compromising positions. In fact it also weighed very heavily on their morale. It was about some of the most difficult periods that we had with our clients. Clients would be very strong up until the stage he or she saw a parent giving evidence for the state against him or her. 
 Okay can I go on. I think I should stop here and take some questions rather. I would like in conclusion to say that the least we can do is call upon those members of the judiciary, magistrates, judges who upon reflection now can honestly take responsibility for some of this behaviour to come forward. I think this would be, not only in the spirit of reconciliation and healing, but also to restore the people's confidence in our justice system. Thank you.

CHAIRPERSON: Thank you Mrs Jana. Hanif?

MR VALLY: : Mrs Jana due to pressure of time I'll just keep it short. Did you have any problems getting advocates to act in any political matters?

UNKNOWN: Yes, particularly in the early days. We particularly, we had great difficulty in getting senior counsel. I remember in one trial where we virtually approached every counsel, every senior counsel at the Johannesburg bar and some elsewhere as well and many senior counsels were not prepared to do these kind of trials. But we didn't have much problem with the junior, particularly the very junior counsels.

MR VALLY: : Would there be some counsel at the Johannesburg bar who refused to do any political matters?

UNKNOWN: I cannot say they refused to do political matters because that's not what the reason they would give. I'm assuming that this would be the reason in some cases. The reason they would give is non-availability.

MR VALLY: : Thank you.

CHAIRPERSON: Thank you Priscilla. Thank you for sharing your experiences with us. I think you have raised one of the questions relating to magistrates, they haven't actually made a formal submission. There has been call yesterday by members of the judiciary who participated in the system then to give some accounts of themselves. They have made copious submissions to the Commission but they haven't really been available to ask questions of. So that's noted as well.

UNKNOWN: Mrs Jana you referred on several occasions to correspondence with the Law Society for not protecting you, not intervening on your behalf whatever, would you still have that correspondence or references available so they can make up a file in order to learn for future possible experiences. I don't want to rehash the past but I think it's important for the Law Society to learn lessons from what has happened in the past.

UNKNOWN: : I did not make several, I did not make several requests. I made some requests. I must say at that stage already I did not have much confidence in the Law Society. I did not believe that it was representative of the people of this country. And they had no show, they had not in any way, did not have a track record of protecting attorneys in my situation. But I did on some occasions, but I will try and endeavour to find those records.

UNKNOWN: Please if you can also add there the occasions where they ask you to explain yourself so they can, we can also learn from that. I'll appreciate that.

CHAIRPERSON: Thank you Mrs Jana.
 I would now like to call Miss Carole Lewis to take the witness stand. 
 Professor Lewis we would like to welcome you to the proceedings of the Commission. I understand that you're not going to be very long. Before we begin, however, I'm going to ask advocate Potgieter to ask you to take the oath please.

UNKNOWN: (affirms)

CHAIRPERSON: Thank you may begin.