Special Hearings — Legal Hearings — 1997-10-27

UNKNOWN: ... regret that I have not had sufficient time to prepare a substantive and comprehensive submission to this Commission. I was actually requested to do so only a few days ago, although I do believe that I have a wealth of information which I think would have been very useful to this Commission. Unfortunately therefore this Commission is rather limited but and of course many of, much of what I'm going to say will, cannot be substantiated with detailed references but upon request I will endeavour to furnish such details as required. I still have some of the records although many of my files have been damaged due to unforeseen circumstances.
 Let me begin with the majority of lawyers in this country in apartheid era who justified that their profession on a legal fallacy, that the legal system functions as a mechanism independent of the society around it. And that the law is a neutral and impartial structure available to all groups in society. Although it may regrettably on occasions be used to enforce unfortunate social practises to those lawyers the courts were impartial arbiters of right and wrong. To them the courts and those who staffed them, both judicial officers and practitioners, were untainted by the stench of racism and exploitation which informs the rest of our society. To those lawyers the accumulation of great wealth through the practise of law was morally blameless because lawyers in South Africa and the law itself constituted an independent enterprise apart from the grim milieu in which their activities were set. Let it be said that very few South African lawyers did not hold these views but saw that the law and the legal system could never be separated from the society of which they are a part. And that the law was the most important mechanism in our society through which oppression and exploitation which constituted apartheid was made possible. 
 It was the legal system of our country which enforced and reinforced the social structures imposed in the interest of a small section of our society. I am now a member of the national assembly. I was an attorney for 19 years from 1975 to 1994 primarily in the field of civil liberties and human rights. I have been involved as a human rights lawyer in most of the celebrated political cases throughout South Africa. I have represented most of the youth, juveniles, students, activists and leaders from a wide spectrum of political organisations and labour organisations throughout South Africa and even in Namibia in all kinds of matters arising from and pertaining to political views activism and victimisation under apartheid. 
 Among the organisations I represented were the African National Congress, the PAC, the South African Youth Revolutionary Council, AZAPO, SASO, BPC, COSAS, UDF, SWAPO, MDM and many others. 
 I have been intensely also involved in representing the children and youth of our country and it is in this area that I would like to specially direct and devote this submission.
 Since 1976 there has been a systemic and systematic violations of human rights perpetrated by the state against the children and youth of our country who in any way participated in opposing the apartheid system. There is a wealth of evidence in this respect and I think that this Commission needs to tap this evidence as it is necessary to record this for the purpose of history. 
 There was something that was both quantitatively and qualitatively peculiar about the scale of police abuse and attitudes of judicial officers in respect of children. Abuse of police power has been a recurrent theme of the indictment against apartheid society and it was a clearly identifiable area of deviant behaviour. What was frightening and horrific in respect of such behaviour against children was the scale of this abuse and it's transportation into the judicial system. This lead to the concomitant contempt for the processes and purposes of the law and law became increasingly identified as an instrument of white power. 
 I had participated in a film produced by Nicholas Claxton called "Suffer the children" which was screened on channel 4 BBC in London. In this film I narrated a host of gross violations against children. After the screening the then Minister of Law and Order (...indistinct) is as a lot of lies. I was summoned to John Vorster Square and threatened with prosecution. I then submitted an affidavit of about fifty pages substantiating in detail every allegation that I had made in that film. I heard nothing about my prosecution thereafter. 
 Let me now delve briefly about my own experience as a legal practitioner. After serving my articles I then opened my own practice. Barely a few days later I was served with a five year banning order. Needless to say this placed tremendous handicap to my practice and my profession as an attorney. I was restricted to the magisterial district of Johannesburg amongst other restrictions and therefore could not be present in many trials that I was instructing attorney. And it is commonly known that it was a practice those days to hold political trials away from city centres. And we know the reason why of course this would unduly prejudice clients and the defence team. 
 In this respect I would like to give you an example. The matter of the State v Ebrahim was set down in Piet Retief. We, the counsel in this team and myself made representation to the judge president then to move this trial to a venue that would be closer and more convenient for client and for the defence, but he refused to do so. I may just interject here and say that detainees also were held in remote parts of the country. I know Jomo Kasle for example was held in a place that I think was called Boskop or something like that, at the border of Botswana. Access to this area was virtually impossible. One had to drive there in a four-wheel drive and had to be escorted by police because this area was an operational area near the border of Botswana. 
 On numerous occasions I had applied for permission to the chief magistrate as was required in terms of my banning order for permission to attend these trials and on every occasion my application was refused. Except on one occasion in the State v Malwane in the appeal before 11 judges in the appellate division when permission was granted to me to attend that appeal. 
 On one occasion I remember in the trial of the State v Lebisi and others Advocate Jules Browde supported my application with a personal undertaking that he would personally take me to the trial and bring me back. The chief magistrate refused the application with no reason. 
 My office was subjected to periodical raids. My staff members were taken for interrogation. On one occasion we were consulting with a client over 20 policemen rushed into my office looking for this particular client. His name was Imbali Seheri. Fortunately for him one of my typists, Nana Williams hid him under her skirt and he escaped arrest.
 On another occasion Penwell Maduna, who is now the Minister of Mineral Affairs who was articled to me then, had to step out of a window and hang onto the ledge whilst police was raiding my office. My home too was subjected to frequent raids. On one occasion my home was raided on three occasions my ailing mother was visiting me from Durban. She had suffered from shock and had to be treated for shock on that occasion.
 I myself was arrested on many occasions and taken to John Vorster Square and Protea police station and interrogated about my activities. On many occasions I was threatened but I was never assaulted. Amongst my interrogators were Colonel Heysteck, one Dietleefs, Captain Sonn and many others. In 1985 I was arrested and detained under the state of emergency at the Protea cells and was later released after several hours. My home in Lenasia was petrol-bombed on three occasions. The first attempt was made just before the execution of Solomon Mahlangu, the bomb fortunately did not explode. 
 The second occasion was in about 1979 when my house was petrol-bombed a day before Mr Melade Arnold, I think he is with us today came to my house for dinner. It would appear that the bomb was targeted for my bedroom. It missed and it hit the helpers quarters next to my bedroom. Fortunately she was not in because her quarters was extensively damaged. 
 On the third occasion in 1995 a petrol-bomb again was thrown into the lounge of my house through a glass door. Fortunately my daughter, Tina was a little baby and she had awakened us and we were not asleep because I think we would not have been able to escape because the bomb had landed blocking both the entrances of my residence. 
 There were many such occasions. A brick in 1984, a brick was hurled into my lounge while I was sitting and watching television but fortunately it did not hit us. My friends and family members who associated with me were often intimidated in various ways. I remember a close friend, Amina Moosajee who was totally uninvolved in politics in any way was asked to report at John Vorster Square and was interrogated on my activities. For that matter I may also mention here that Advocate Tomkin of the Johannesburg bar was questioned by security police when he was involved in a trial briefed by my office. Mr Ken Padiyachee, a close friend was approached by colonel Heysteck to inform on me. 
 During 1985 in the matter of the State versus Colin Subane I had travelled a long distance to consult with him in a prison in Haenertsburg, in Magoebaskloof in the Northern Transvaal. When I left the consulting room, when I left the prison I was consulting in the prison, I found that all tyres of my car were slashed. 
 In 1978 I had gone to consult with my client, Mosibodi Mangena who was released from prison after serving five years on Robben Island and was banished to a village outside Pietersburg. As I entered the location it appeared that the police were waiting for me. They escorted me to the police station and locked me up in a cell whilst my mother who had accompanied me was sitting in a car. When I protested that it was too hot they brought her in. I spent the whole day in the cell and left without seeing my client. 
 The question here arises what did the law society do for me and other attorneys in my position? I would like to boldly state - absolutely nothing. I felt, on the contrary, persecuted by the society because complaints of frivolous nature were often persecuted vigorously against me. And in many times the source of the complaints were not even disclosed to me. For instance when I represented Solomon Mahlangu in court his friends and family were not allowed to come in with the exception of his mother, his brother and his sister. As he was sentenced the atmosphere in court was one of, as he was sentenced to death by the way, the atmosphere in court was one of great jubilation from court officials, police and the staff. Members of his family were not even allowed to greet him. Immediately after being sentenced to death he raised his hands, his fists and shouted "Amandla" and I responded "Awetu". I was then asked to give full explanations of my behaviour by the law society.
 The fact that in that court at the same time the judge's daughter, who was his registrar called me a bitch after my response and I made a complaint to that effect to the Department of Justice there was nothing that was done about it. 
 On another occasion when my clients in a UDF trial were incarcerated at John Vorster Square the police, no sorry I don't know where they were incarcerated, but the police had called me to tell me that they would be appearing the next day in court and they had instructed him to instruct me to represent them. The law society thereafter wrote to me asking me to furnish full proof of my mandate. The source of the complaint against me was not disclosed. Although I must say that when we had instructions from detainees we had submitted written instructions to the police as were required by them before they even communicated with us. That was the practice in those days.
 Let me now begin with a great myth of fair trials. And I think the area that I would like to touch on was access to clients and this is of the limited rights that we did have. We had the right to consult with clients but from my experience I would like to just quickly set out a few occasions. 
 When Aubrey Makoena was detained under section 28 of the Internal Security Act I tried to consult with him for a court application in prison. The prison officials denied me a consultation which was privileged and insisted that it should be within sight and hearing. Of course thereafter I left and went straight to the supreme court with counsel and brought an urgent application and succeeded. 
 When we consulted with president Mandela on Robben Island in an application for his daughter Zinzi Mandela, who was really being really harshly subjected to police harassment in Brandfort that consultation took place within sight and hearing. 
 On another occasion when my clients were incarcerated in John Vorster Square I was informed that they were charged and were awaiting trial my then clerk Caroline (...indistinct) Nichols and I rushed down to John Vorster Square to consult with them. I was denied access to them. After protesting for a while the officer there locked both of us in a cell for a few hours. We brought about an action against the police and the prison department and the matter was settled out of court. And I was represented by attorneys Cheadle, Thompson and Haysom. 
 I must also state here that it was very difficult in those days to prepare properly in political matters. There were no facilities in court. There were no consulting rooms and much of our consultation had to be done outside or in corridors of courts. On the one occasion in the State v Ngwenya when I attempted to consult with my client's father I had to do so in the back of the court room. The police, security police kept on following us and tried to listen in to the conversation. He was also eating a pear at the time and he was spitting. I called him a pig and I know that many of you would know I was charged and convicted of crimen injuria and fined. Of course my appeal was upheld thereafter. 
 I would like to now quote a few of the cases that I've acted in because I think that it's necessary to set out the pattern that prevailed in those days to dismiss the myth of the fair trial. And I can say here that much of the outcome of our matters in court depended on who the presiding officer was. For example I can give you comparisons. In the UDF trial in Pietermaritzburg and the Delmas trial had two different outcomes. The UDF trial our clients were out on bail, in the Delmas trials clients were refused bail. And the outcomes were very, very different.
 In another matter in the supreme court similar matters were heard in two courts. The one was the State v Kekane and the other was the State v Lepili. In the State v Kekane both of them were arrested and detained for about the same time and for the same activities, but the trials were split. The confession made was admitted and it was the only evidence against our client. And he was convicted and sentenced. In the State vs Lepili the confession was not admitted. It is a reported case. 
 There are many comparisons. There's another matter, the Vaal Triangle matters, there were two matters and each matter had nine clients. My matter was the matter of the State vs Mashili and the other matter I can't remember the names. In my matter all nine accused were acquitted and in the other matter, a similar matter with the same circumstances and the same events they were all convicted. This is the famous matter of the Vaal Triangle. 
 Let us now go on to some of the other matters that I think need mentioning here. Unfortunately I will not be able to separate them from the supreme court matters and magistrate court matters and I will just relate them. I don't know how I'm doing for time though Madam Chair. Can I carry on for a little while?