Special Hearings — Legal Hearings — 1997-10-27

YASMINE SOOKA: Thank you very much for that submission. Who is next? Mr Dadnos, Mr Maloto has said that he will go tomorrow. So after the students it's just the summing up from the panel.

MR BROWN: Madam Chair, Commissioners, ladies and gentlemen, the fact that race, gender and class affects both the level of efficiency of prosecution and the judgement has been clearly stated by my colleagues.  The fact that in the past the executive arm of Government used the prosecuting authority to achieve its objective of ensuring the survival of apartheid has also been clearly demonstrated.
 In this submission we will focus on how the prosecuting authority can embark on a process of corrective action by re-examining its role. We submit that unless such corrective action is embarked upon, the injustices of the past will continue in the subtle operations of the prosecuting authority.
 Moving on to the injustices of the past that continue today. In the past the rights of victims of human rights abuses and complainants in criminal cases took second place to the rights of perpetrators of human rights violations and accused in criminal matters.
 The criminal justice system was designed to bolster this imbalance. Currently the criminal justice system continues to be biased in favour of the rights of the accused. In most cases victims and complainants are unaware of their rights and remedies. It is taken for granted that the prosecutor represents his or her interest. However, the prosecuting authority has not yet made the paradigm shift, instead complainants in cases of police brutalities, sexual offences and other such crimes are still not treated with any respect or dignity.
 In our clinic we receive cases on a daily basis where people have laid charges of rape, child abuse and police brutality. They are unhappy with the way in which the matter was investigated and in the way in which the case proceeds.
 We all know that it takes a great deal of courage and strength to institute charges in these instances, especially in KwaZulu Natal. These experiences have become even more traumatic and life threatening when matters are not dealt with in an efficient and sensitive manner.
 We are able to cite several cases within this category where charges of assault of street children having withdrawn against police officers without any reason. It is within this backdrop that we offer the following suggestions.
 Our recommendations therefore are; firstly, at the outset a major paradigm shift needs to occur. The prosecuting authority needs to realise that it represents the state, the individual complainant and the interest of society. It is not directly accountable to the executive arm of Government. 
 This shift can only take place if prosecutors are re-educated. They need to be trained in both the provisions of the new constitution and how it affects their role and in the issues of social and economic context.
 They need to understand that they operate within society and not in a vacuum. The Truth Commission ought to recommend a training programme for prosecutors. 
 Secondly, it ought to recommend the development of a code of conduct for prosecutors. This code of conduct in relation to the prosecutors' duties as regard to complainants ought to include the following issues that are currently dealt with in legislation, but are not implemented in practice.
 They are the duty to advise the complainant about his or her rights and remedies; the duty to inform the complainant about the merits and de-merits of the case and the procedure that will be followed; the duty to inform the complainant of his or her right in terms of section 300 of the Criminal Procedure Act; that is his or her rights to compensation; the duty to prepare the complainant for evidence, both in chief- and cross-examination; the duty to inform the complainants about the developments in the case as it proceeds and the duty of the prosecutor to ensure that the investigation is conducted effectively and efficiently.
 Finally, a mechanism whereby Government, organs of civil society and prosecutors themselves are to work in partnership to monitor the implementation of the code of conduct.
 In our conclusion, therefore. we state that our law clinic is not concerned with a mere apology for the atrocities of the past. We hope that we have been able to begin the process of finding strategies that undo the injustices of the past and work towards empowering those who have been victims of abuses in the past.
 We also hope that through this type of focus that even perpetrators may find concrete ways to remedy past injustices and not stop at - I'm sorry -

YASMINE SOOKA: Thank you.