Special Hearings — Legal Hearings — 1997-10-27

CHAIRPERSON: Thank you Mr Francis. Suinaib?
?: Thanks Madam Chair. You've had a gruelling day and I'm not going to test your patience by going through 4 pages of summing up notes. But just to highlight a few issues. Firstly may I again with respect stress the context in paradigm that we mentioned yesterday. We think that unless the submissions are viewed within that context and paradigm it is not going to get the commission very far because what you have are basically allegations that we acted within the law. And there might have been difficulties but that was the law which completely ignores the fact that, that was an unjust law. And part of what you're investigating is whether or not there should have been opposition to that unjust law.
 To argue that we acted within the law takes us nowhere and unfortunately that characterised today's submissions as well. And from that perspective they actually raised more questions than answers. 
 What was particularly disturbing was the reference this morning to words such as "anti-justice propaganda, revolutionary onslaught, communist onslaught." And the suggestion that the credibility of the justice system and the attorneys general was lost because of that onslaught. It was, the onslaught was there so as to deal with the injustices which that system exhibited and perpetrated. But what the reference to those words denote is a clear assimilation of the language of the Apartheid government. And from that point of view for the attorneys general to suggest that they were acting independently rings extremely hollow. 
 Perhaps the most telling is the reference to for example Rommel not being a Nazi and the proud reference to teaching manuals such as defeating the communist insurgency. I mean that sort of reference was made here today before the TRC October 1997 without a blink of an eyelid, without any remorse whatsoever. And that I think falls to be condemned most strongly. If at this stage characterisations of the liberation struggle are still on the basis that was a communist onslaught we have a very, very long way to go. And for it to be said unblinkingly without remorse makes the position extremely bad. 
 In so far as I'm concerned I regard an apology of actions to be sincere and maybe I'm imposing a certain subjective level, subjective standard. But I only regard an apology to be sincere if it deals with the actual violations in respect of which the apology is made. If I have committed a range of violations over period of time and then meet the victims and say: "I'm very sorry for what I've done. I must tell you I acted within the law and so be it but I was very independent." That I'm afraid is crass arrogance of what is required to be stated here and what is required to be dealt with by your commission. And from that point that characterised, that attitude characterised the submissions of the attorneys general today. 
 And there was level, an element of contrition and regret but I'm afraid not sufficient from my point of view not sufficiently candid. I think that if there was to be an expectation of an acceptance of apology then what was required was some sort of listing even by category of the nature of offences that these people have been involved in. They were the hitmen of Apartheid and it begins and ends there. And to try and wriggle out of that by as I mentioned yesterday, using technical legal (...indistinct) it just is not on. Not at this stage of our history. 
 The experience of Messrs Hendrikse, Skosana and Naka really flies directly in the face of the evidence of submissions we've heard from the attorney's general. One would swear that all of the submissions you heard like theirs, like I was dealing with the attorneys general we were living in a totally different state. These weren't the attorneys general we were talking about. If you look at page 34 of our submission they list complaints against the attorneys general. Mr Lee Bozalek and they just not consonant with what you heard today. And from that point of view we're also extremely disappointed. 
 We think particularly in so far as officials who came from the old order and who continue to serve the new order, from their point of view we would have expected because we thought they would want to impress upon the new system, new democracy, the new people that they were here to serve the requirements of a constitutional state and the demands of a constitutional state. That they would be more forthright about their activities. Regrettably that was not forthcoming.
 In so far as the magistrates are concerned we pleased to hear that there might well be some who are prepared to make submissions but again from the evidence of Messrs Hendrikse, Skosana, Naka it's clear and from the evidence of - I forgot to mention earlier the security policeman. I've forgotten his name. That there's a very different picture that emerges in so far as the involvement of the attorneys general and the entire prosecutorial system and the magistracy is concerned. In so far as human rights violations are concerned. 
 The department of justice. I had occasion to read their submission yesterday and as I went through it I actually wondered whether it was not simply a condensed exposition of the course that the law chartered. This act, this happened, that act, that happened. By the time I came to the acknowledgement page which expressed the apology I'm afraid I wasn't relieved. Again from their point of view having been at the coal face I think what one would have expected is for them to have listed those violations in which they were involved directly or indirectly. To have said that to give you, your commission a better a picture this is the way the department of justice operated within the context of other structures administering injustice in this country. Not simply, and it's a useful review but that takes up virtually the entire submission is merely repeating the legislation of the time. I think we could have done that by going through the statute books. Yes the statistics are very useful to yourselves. Again I think they'll need to be followed up I think. One needs to go beyond those statistics but one is grateful that they have apologised. It was just a pity that I don't think that the actual role and a (...indistinct) by (...indistinct) account of that role hasn't emerged before this commission. 
 So it seems to me having been here for three days that these deliberations has merely sat a platform for yourselves from which you would have to progress further and actually look beyond these submissions and into them. Because ultimately the idea is not as I mentioned yesterday, for lawyers to know what was happening but for us to explain to the community out there, who have no respect, had no respect for these institutions. Why they failed the community, where they went wrong? And again to say to that community out there: "We received an apology and you need to access the level of contrition the level of apology and the extent of regret," to be able to recommend to the community out there that we ought to embrace all of these people within the new constitutional democracy. And to accept their commitment. And that's the task, the difficulty that you have. With respect I can't see that being too easy with the nature of submissions that have been made thus far. But thank you for the opportunity given to us to participate.