Special Hearings — Legal Hearings — 1997-10-27

YASMINE SOOKA: : Thank you Mr Von Lieres. Hanif.

MR VALLY: : Mr Von Lieres we are at a slight disadvantage since you didn't give us your written submission beforehand, but we are going to make copies of it now. I have some questions to ask you while the copies are being made.
 Mr Von Lieres, at some point, I am not sure whether you still hold this position, but you were either the Commander or the Colonel of the Seventh Infantry Regiment as well as the Attorney General. Does not your position as Colonel/Commander of the Seventh Infantry Regiment compromise you in your independence as Attorney General?

KLAUS PETER CONSTANTIN OTTO VON LIERES UND WILKE: Actually I am still at present a Brigadier and not a Colonel, and Madam Chair, Rommel was a Field Marshall but that didn't make him a Nazi, did it?

MR VALLY: That's a question of opinion. The question is, did it not compromise you in your independence to act as an Attorney General?

KLAUS PETER CONSTANTIN OTTO VON LIERES UND WILKE: I don't think so. In fact, Madam Chair, it may interest you to know that I prosecuted certain Defence Force Generals for fraud here in the Regional Court in Johannesburg.

MR VALLY: Although you were a Brigadier in the DefenCEe Force?

KLAUS PETER CONSTANTIN OTTO VON LIERES UND WILKE: And Attorney General.

MR VALLY: Let's go on. The General Council of the Bar states in their submission that whilst the Attorneys General were supposed to operate free of political influence, there was at all times a widespread belief that they did not do so. What's your comment on the submission by the General Council of the Bar?

KLAUS PETER CONSTANTIN OTTO VON LIERES UND WILKE: Well I've just said to you, in my submission that it is part and parcel of the function of the Attorney General to receive representations. We work on a case by case basis, we don't work on a policy or an ideological basis, and in respect of each case, each case was decided on its own merits as to whether prosecution should or should not be instituted. I've already said that Ministers did make representations to us from time to time in connection with specific cases. One actually once asked me whether I could give him a guarantee that the accused would be convicted if the prosecution continues. I told him I don't issues guarantees, I am not an insurance policy that pays on demand. It's not my duty to issue guarantees. My duty is to prosecute if I believe that there is a prima facie case which means that a reasonable court would possibly convict on those facts unless there are other persuasive reasons, it is my duty to prosecute. So my answer to you is the perception which the Bar testified about was not substantiated during my term as Attorney General in any single case that I'm aware of.

MR VALLY: You talk about the independence of the Office of the Attorneys General, yet we all know that from the time when Telman(?) Roos was Minister of Justice, I think way back in 1935, until the impending democracy, the Minister of Justice could substitute any decision of an Attorney General without even the public having to be told about this. How could you say then that you were independent?

KLAUS PETER CONSTANTIN OTTO VON LIERES UND WILKE: Indeed that is so, and that situation persisted until the 1992 Act of the Attorney General became accepted by Parliament. The fact is, Madam Chair, that a convention existed that the Minister of Justice does not interfere in the decisions taken by an Attorney General. There are numerous examples on file where representations were made to the Minister to overrule the decision of the Attorney General. I had quite a few in my old office on file which are readily available in which the Minister wrote back to the representor saying that he doesn't interfere with the Attorney General's decision. But the fact is of course, that technically and legally he is obligated to exercise a discretion if representations were made to him that the Attorney General didn't exercise his discretion properly. The fact that he didn't do so, doesn't mean that he complied with the law. He could have been taken to court and compelled to do so, but in practice it didn't happen.

MR VALLY: Well, maybe I should then ask you about the matter of Mogale? We have a submission from Ms Satchwell, the time she was an attorney, but now she's Justice Kathleen Satchwell, where the AD no less had found that confessions had been obtained under torture and the Attorney General did not prosecute any of the persons who are responsible for their torture. Now what I'm pointing out to you, I know you may not know the specific case, but what I am pointing out to you is here where the AD has made a ruling, the Attorney General has not prosecuted.

KLAUS PETER CONSTANTIN OTTO VON LIERES UND WILKE: : I'm not aware of the detail of that case, I don't think it's a case that emanated from the WLD, if a case like that had come to my notice, I would have investigated it with the view to a possible prosecution, but I have no recollection that a case like that was ever referred to me or similar cases.
 If I may Madam Chair, perhaps to assist you, I received during the last year as Attorney General something like three and a half thousand dockets per year involving complaints against police for assault and murder and what not. We kept some statistics and if my memory serves me well, in over fifty percent of those cases prosecutions were instituted against the police. Many of these cases involving assault, murder of course affect human rights and the victims rights not to be assaulted or have his physical integrity violated, our statistics indicated that we had a success rate of roughly fifty percent in all the cases we instituted prosecutions, so I'll say roughly a quarter of all the cases were successfully disposed of at the end of the day. So I offer those statistics simply to illustrate a point which many people believe that Attorneys General just simply sat back idly and allowed the police to commit the one offence after the other, and that is in fact not so. And may I add to that that most of these cases, if not all of them, were in those days investigated by Police officers themselves.

MR VALLY: : So if this is the perception, this is your position, why is it that the Truth Commission has had this myriad of cases where countless numbers of Police forces, members of Security Forces have come before us admitting to tortures, murders and the Attorneys General did not prosecute in any of those matters?

KLAUS PETER CONSTANTIN OTTO VON LIERES UND WILKE: : No, I think the answer is quite obvious Madam Chair, if cases are investigated and evidence under oath is submitted to the decision-taker and that evidence is false, the decision-taker will obviously take a wrong decision because the wrong facts were placed before him. What's happening now, is that these people are now coming out of the wood and they're now admitting that they lied, cheated and deceived in the past. I mean, the same can happen to the Truth And Reconciliation Commission, that the witness can testify falsely under oath, you may believe him and you can come to the wrong conclusion. The same happened obviously to the Attorneys General.

MR VALLY: : Were you ever in any way subject to any political direction regarding any of your prosecutions?

KLAUS PETER CONSTANTIN OTTO VON LIERES UND WILKE: : No. Naturally the politicians in many cases didn't want me to prosecute, but that wasn't off putting enough to stop the prosecution and not to institute the prosecution.

MR VALLY: : You talked about some cases where you prosecuted members of the Security Forces. You started off with Van As in 1984. What happened between the whole period before 1984, what happened when you were in the Attorney General's Office, I suppose it wasn't established then?