Special Hearings — Legal Hearings — 1997-10-27

ABEL BOESAK: Now we're addressing the second point that we attempt to address in our proposal here. It is the discretion to prosecute or not.
 It is in exercising the discretion to prosecute or not that gross human rights abuses took place. Kenneth Caldavis had this to say about that discretion. 
"I think the greatest and the most frequent injustice occurs at the discretion end of the scale where rules and principles provide little or no guidance; where emotions of presiding officers may effect what they do; where political or other favouritism may influence decisions and where the imperfections of human nature are often reflected in the choices made."
This was reported in the discretion of justice, a preliminary enquiry, 1969.
 In an article written by two authors in a Stellenbosch Law Review, volume one 1997, Raymond Koen and Debbie Budlander conducted a survey of the justice system by interviewing a number of practitioners. In regard to the discretion of attorneys general to prosecute or not, the following have been noted.
"A White advocate reported that in case where she had made representations to an attorney-general's office, they've always asked me first; is he White or Black. Always."
So race is definitely an issue. Other interviewees spoke more of a gut feeling and as another advocate said;
"I don't have concrete evidence, but based on perceptions I think reasonably held which I have as a Black South African, having dealt with authorities, prosecution, the police and the courts, I've got no doubt that these three factors of race, class and gender definitely play a role in a decision to prosecute."
The above authors further commented that the majority among interviewees in relation to colour and credibility, was that magistrates tend to believe that Black accused have committed the offence with which they have been charged.
 As a result the evidence of Black accused is treated with suspicion or as a fabrication. In the words of a Black attorney;
"Magistrates come from decent White suburbs and believe that Whites never lie and Blacks find difficulty telling the truth or are most economical with the truth."
This can however be seen as an oddity in regard to the easy acceptance of confessions of the same Black accused by magistrates. The same accused with such a good propensity to tell lies.
 A further elucidation of racial mentality of the Department, may be reflected by the handling of political violence matters, especially in KwaZulu Natal.
 In 1992 (...indistinct) there are strong grounds for viewing the South African judicial system as biased in favour of the state. Judges and magistrates have tended to be White middle-class males whose innate conservatism has on a whole done nothing to threaten the status quo. Although there have been exceptions. Thus the role of the courts in the Natal Midlands can be anticipated to some extent. In other words standing to support the state structure and theories, thus over and above apparent bias of members of the judiciary is a deliberate manipulation of the judicial system by the state.
 A number of case studies may indicate the lack of accountability and the wide discretion afforded to the attorney-general's office. For instance, in February 1988, 43 IFP members were charged with public violence. Their charges withdrawn and replaced with accusations of illegal assembly. The prosecutor could give no reason for the change, but said that the decision had been made after consultation with the attorney-general.
 In August 1988, charges against Tu Ncobo for the murder of Ernest Mtembu were withdrawn. No reason was given.
 In March 1989, murder charges against two men for the murder of Frank Zwake in Sweetwaters were dropped. No reason was given. Cases continue. These are obviously just a drop in the ocean of atrocities which were never properly brought to book, especially taking into consideration that more than 20 000 people were killed in the course of this violence.
 But importantly here for our purposes it is clear indication that the justice system had no regard whatsoever for the lives of Black people and also that it was in the interest of a policy of divide and rule. One can only imagine if White lives were at stake in the same manner as the innumerable Black lives had succumbed to the violence, what the authority's reaction would have been.
 Furthermore a report in June 1992 by Amnesty International noted -
That effectiveness of the investigation into police abuse has also been hampered by what can only be described as a general passivity of the attorney-general's office".
 It is against this brief background that we propose the following within the Department of Justice.
 One, change in recruitment practices to create a Department reflecting the demographics of our country and also recruitment of more women professionals into managerial positions within the different structures of the Department.
 Two, the recruitment process should also include a training component and should not be a mere manipulation of numbers but actual capacity and human resource development.
 Re-education of the present personnel on aspects of social justice, gender, racial sensitivity and also the law as encapsulated in the constitution is another point.
 Fourthly, the adoption of a more transparent attitude and user-friendly justice system that will treat all fairly including the families of accused persons who are invariably left in the dark about prosecutions. 
 In addition the possible publication of a newsletter which would be accessible to the proverbial layman on the street and not just to legal practitioners and academics about the functioning and success of prosecutions as well as reasons provided by certain prominent cases not prosecuted at all.
 The fifth recommendation is that the creation of a national attorney-general's office will have great ramifications in regard to the present functioning of the provincial AG's office in that all prosecutors and provincial AG's will be answerable to that office.
 Furthermore, the creation of such an office will also advance the establishment of guidelines or specific modus operandi across the nation which would also masculate the patronage which present provincial AG's have over their personnel.
 Sixthly, the national attorney-general's office should also not have sole discretion in regard to prosecutions or other matters. The person should be answerable to a committee. The details could be worked out.
 My seventh recommendation is that it is also out submissions that the tenure of the attorney-general should be limited to a certain number of years, in other words, seven years especially in order to avoid political appointments and also to cater for the continuous transition of that office; that it will not become a so-called dinosaur in the system.
 It is our final submission, bearing the purpose and spirit of the Truth and Reconciliation Commission in mind, that serious attention should be paid to the restructuring of the Department of Justice alongside with the restructuring of the legal profession as a whole. If we are to encourage and entrench the values of free and democratic society as we have already successfully commenced on that path then we definitely ought to restructure the institutions that form the core or rather the fundamental spine to the previous apartheid regime.
 We're all aware of the atrocities committed in the name of so-called justice under the cloak of the apartheid doctrine. It is therefore our submission that we now attempt to avoid a repetition of similar atrocities under some or other hideous or ridiculous doctrine then we ought to establish checks and balances in our system to curve the potential of such abuses, hence in the premises we hope that our submissions have shed some light on this and contributed to the process of re-inventing our institutions.
 I now wish to turn to issues that were raised during the proceedings today which are not directly related to the subject matter of our submission here. 
 Firstly, we'd like to express our opinion on the absence of judges as pointed out by Adv Phosa here. Our opinion definitely correlates with the emphatic and eloquent expression of Adv Phosa's position and his amazement of the absenteeism from these hearings. One would have thought that because of the essential and central role played by judges, they would have made some form of representation in merely sitting in at the hearings, bearing in mind the issue of time constraint obviously.
 Our second submissions is that I would like to express concern specifically in regard to the role of law students in the involvement in the proceedings here. We as a group here were fortunate being law students serving in a law clinic at the University of Natal, to have been able to make our brief submission here, however, being an ex-official member of law students' council at the University of Natal, we are perturbed at the lack of information and opportunities accorded to law students broadly or through law students' societies to represent their views and input on the legal profession, because the events would obviously affect law graduates at the end of the day. Thank you.