Special Hearings — Legal Hearings — 1997-10-27

MR VALLY: Finally for my part. You talk about the Hoekstra commissions - page 80, the Hoekstra commission's recommendations there, you've mentioned it before. Am I to understand from what you say firstly the bar council has told us that between '53 and '68 the magistrates were instructed not to criticise the police at all in their judgements.
 From 1968 onwards there was the code which talked about fair and reasonable criticism and you referred to this on page 60 in paragraph C. Where misconduct for example included public commenting to the prejudice of the administration of any department. If the magistrate had to be found to be inefficient or guilty of misconduct his salary or grade could be reduced or he could be discharged from public service. Page 80 C. And you say that you think these recommendations, the Hoekstra commission were put into place somewhere in 1984?

MR NEIDT: No it was between 1979 and 1984 because that was one of the first matters brought up to the attention of the Hoekstra commission and I remember all newspapers were reporting this. And the then director general of justice was Mr Coetzee and I went immediately to him and discussed it with him and obviously I personally wasn't aware of this particular instruction. And I think within a week or two that was withdrawn and ultimately the whole code was withdrawn.

MR VALLY: Right so up to this point magistrates on pain of being charged for misconduct could not criticise the police or any other department even though the evidence in that case may show them to be culpable of whatever?

MR NEIDT: Chairperson I must, I think we probably have a copy of that code. But if I remember it correctly what was stated in that code. There was no mention was made of misconduct. There may have been another circular but the code that I remember merely stated that magistrates shouldn't criticise police in open court. They should rather direct their criticism afterwards to the minister of police or the commissioner of police, whoever it was. I can't remember any mention of being made that they were guilty of misconduct. I'm certainly not aware of any magistrate being charged in this regard. But I must say it's before the time I was in charge of misconduct matters.

MR VALLY: I know that you were some official of the Hoekstra commission.

MR NEIDT: I was the chief researcher.

MR VALLY: And I note that in your submission you put the issue of misconduct and the definition of misconduct immediately underneath that point so I assume there was a reason for that?

MR NEIDT: Ja I would just like to check on that and I'll come back to you because I think that specific instruction is still somewhere to give you the correct information. I'm speaking now some time ago but that's my recollection of it.

MR VALLY: Thank you advocate Neidt I'm through.

MR LAX: Thank you advocate just briefly -deaths in detention and the statistics were given yesterday or today about fairly large number of deaths in detention between 1960 and 1990. It was something like 87 deaths in detention. Now many of these perhaps most of them would have taken place on property under the jurisdiction of your department, some of them would have been in police cells but many of them would have been in prisons. Now aside from judicial inquests and that sort of thing did the department take any other steps to investigate these deaths in detention? And there was any departmental investigation instituted? Were police ever asked as to how this had come to happen, the prison wardens or whoever was in charge of these people?

MR NEIDT: Chairperson if I remember it correctly the initiative usually came from the police specifically when somebody died in detention and they requested a minister of justice to appoint a magistrate to hold an inquest in public. The request usually came from them and this was usually a discussion between the two ministers and then the minister decide on an official to be appointed or requested to hold this. And this was usually in one of the officials in the particular jurisdiction of where this happened and then the inquest continued.

MR LAX: So there was no separate inquiry internal nothing like that?

MR NEIDT: No not that I'm aware of.

MR LAX: And you wouldn't have a list then of the number of people and the names of people who died in custody?

MR NEIDT: We do have records of some of the inquests. That I know. Some of them at one stage. I'll ask Mr du Bruin just to look and we have records of some of the inquests but not all of them. But we do have records of some of them.

MR DU BRUIN: I don't have a complete record of all the deaths in detention but we'll be able to get that from the police. And from that we can see what happened afterwards. Because usually the attorney general or the senior public prosecutor of the centre concerned was involved in the investigation because that was the instance that initiated the inquest. So if we can have a list of all the names we can check whether we have files on all of them.

MR LAX: Okay that's fine thank you. And just finally, the attorney generals this afternoon expressed, some of them sad they felt a great sense of unease and concern about the number of deaths in detention. Did they ever take this up with the department of justice, do you recall at any point when the attorney generals called or requested a meeting with the department as their employer to talk about things like this that concerned them? Deaths in detention?

MR NEIDT: Chairperson I don't know of any such instance. It may have happened with my predecessor. They may have had discussions with the minister of justice but I'm not aware of any such discussions.

PANEL: Chairperson with your permission may I also.....

CHAIRPERSON: Go ahead.

PANEL: Give a perspective of what happened in the area that was (...indistinct) with regard to deaths in detention. I recall the prominent cases of Peter Nchagaleni(?) in Sekekuneland, Magora Malepe in Golovedu and Magompo Kutumela in the Mogero district. I'd say that in all those cases the magistrates who presided over the inquests found that the police were probably responsible for causing the deaths of those people in detention but then it is not clear what happened thereafter. But I must also say that the only record of Magora Malepe I could find, the one of Peter Nchagaleni I could not find and the one of Magompo Kutumela according to information is destroyed when that office was set alight during the turbulent years of the struggle. Thank you.

CHAIRPERSON: Thank you.

MR DU BRUIN: Madam Chair?

CHAIRPERSON: Yes.

MR DU BRUIN: May I just refer you to page 30. You requested the figure for the section 6 detainees. It is contained top of page 30. The figure is 4140. We gather it from Hansen. It was a question in parliament.

MR VALLY: Thank you very much.

CHAIRPERSON: Thank you. Mr Lax I think wants to ask one more question.

MR LAX: Thank you chairperson. When we spoke to people like Mr Vlok they said that when they used words like "eliminate" and so on those were instructions to people about detentions and other methods. They never ever understood that to mean kill - ban, restrict, detain. Did you ever get an instruction from the state security council where the intention was to restrict someone or to detain them or to ban them that used the word "eliminate"?

MR NEIDT: No chairperson. There was one instance and that was in the case of the Mkondo and others. There was I wouldn't say it was an order or a request or a direction by the state security council that these people should be detained in terms of section 28. But then it was a straight recommendation or request "detain in terms of section 28."