Special Hearings — Caprivi Hearings — 1997-08-04

MR COETZEE: Mr Chairman, for record purposes, I am Etienne Coetzee.  I appear with De Vos SC for, inter alia, General Liebenberg.  At this stage I have been instructed or we've both been instructed by General Liebenberg to ask for the recusal of Dr Boraine as Chairman of these
 /proceedings.  The
1A proceedings.  The basis for this application is to be found in various public statements made by Dr Boraine in his capacity as Acting Chairman and Vice-Chairman of the Truth and Reconciliation Commission.  I intend referring to these public statements.  Dr Boraine, after General Liebenberg's acquittal in the case of S v P Msane and Others, expressed various points of view relating to General Liebenberg and the other co-accused's acquittal.  An example in this regard is the statement of Dr Boraine published in, "Die Burger" on the 22nd October 1996, which reads as follows:
"The outcome of the Malan case has possibly reassured and falsely reassured many highly-placed people in the Defence Force and it is now necessary that one of them ask for amnesty, so that the dam wall can break."
This statement by Dr Boraine presupposes that many senior officers in the Defence Force were involved in acts for which amnesty is required.  
Furthermore, in a book titled, "Dealing with the Past.  Truth and Reconciliation in South Africa", the second edition published by Edasa, 1997, edited by Dr Boraine, Janet Levy and Ronel Schaffer, the following point of view has been put forward on page 7 thereof.
"But in another key trial former Defence Force Minister, Magnus Malan, and his fifteen co-accused were acquitted of all charges related to the 1987 KwaMakutha massacre.  The bitter recriminations that followed the judgment serve to
 /highlight the
1A highlight the immense difficulties of proving culpability in court during an era of transitional justice.  This insinuates that during the period in which the justice system is in transition immense difficulties are experienced to prove a person's guilt.  The Court's finding of not guilty seems to be rejected and the result, namely General Liebenberg's innocence, is blamed on the transitional phase of the justice system."
In relation to the Steyn Report, Dr Boraine has expressed certain viewpoints and made known certain alleged information relating to potential criminal activity on the part of General Liebenberg before the facts had been properly investigated and tested.  In this regard I would like to refer to a news broadcast on SABC Television on the 8 o'clock news on the 16th January 1997.  It first starts with the news broadcast of Jane Hicks.
"The Truth Commission has accused former State President F W de Klerk of ignoring recommendations to investigate the actions of top military officials.  It alleges that Mr de Klerk failed to disclose that a written report was made available in 1992 about the alleged activities of the officers and that Mr de Klerk allegedly ordered the compulsory retirement and dismissal of a number of top military men mentioned
 /in the report,
1A in the report, without launching an investigation into the alleged unlawful actions.  The report was written in 1992 by the now Secretary of Defence, P F Steyn."
Then the interview starts with Dr Boraine.  Veronica Strydom said the following,
"In 1992 General Steyn was appointed by Mr de Klerk to investigate alleged unlawful activities by members of the SADF's intelligence wing.  He discovered that several other departments in the Defence Force were also involved in various criminal acts."
Dr Boraine's comment on the newscast was as follows,
"Assassinations, trained violence, chemical and biological warfare, drug, ivory and arms smuggling, to mention only a few and some of these were clearly criminal activities, and others were way out of the scope of the normal security arm of the State."
Then Veronica Strydom continues.
"At the time, General Strydom recommended that a criminal investigation be conducted, but this never happened.  Instead, Mr de Klerk dismissed or forced compulsory retirement on about 23 Generals."
Dr Boraine then continues.
"Three Generals that Mr de Klerk gave
 /authority to
1A authority to draw up a list of people who should be retired or be dismissed were Generals Kat Liebenberg, George Meiring and Joffel van der Westhuizen, but I think for us the most worrying feature of that is that General Steyn, in his notes which he handed to Mr de Klerk, actually mentions these three are those who ought to be amongst the ones who should be investigated.  So you get the ones who should be investigated doing the investigating and I don't think that this is satisfactory at all."
On the 17th January 1997 General Steyn issued a press release, stating that no specific recommendations were made to Mr de Klerk.  Also on the same date in a SAPA press release it appeared that Defence Secretary, P Steyn, denied that Joffel van der Westhuizen, Liebenberg and Meiring were allegedly implicated or involved in unlawful or unauthorised activities.  In the SAPA press release of the same date Dr Boraine is quoted as, inter alia, saying the following,
"If true, this emphasises our concern that the allegations of dirty tricks by SADF personnel may not have been adequately investigated."
The same press release goes on as follows,
"Since last Thursday, when the Commission released excerpts of the report and claimed it implicated three Defence Force Generals in illegal activities
 /there has been
1A there has been mounting confusion as to the exact contents of the report.  The author, Pierre Steyn, now Defence Secretary, denied at the week-end he had recommended action be taken against Generals Meiring, Joffel van der Westhuizen and Liebenberg.  This contradicted last Thursday's statement by the Truth Commission which was, according to the Commission, based on Steyn's report to De Klerk in 1992 and on subsequent interviews with Steyn.  According to the statement, Steyn's report recommended that action must start gainst the Generals, as they were among the names of 60 individuals listed in the report as being involved or implicated in unauthorised and unlawful activities.   The Commission said De Klerk had ignored Steyn's recommendations for a full investigation into the activities of the 60 and had instead asked Meiring and his two colleagues to provide the names of the individuals against whom action should be taken."
General Liebenberg's attorney requested a transcript or notes taken of the interview with General Steyn.  To date these have not been provided.  No recording was made of these proceedings.  It also appears that no written notes of this conversation were taken as none have been
 /made available by
1A made available by the Commission.  In terms of section 14(1)(a)(v), the Committee on Human Rights Violations is compelled to record allegations and complaints of gross violations of human rights.  It appears that this provision has not been complied with.  From the press reports it appears that Dr Boraine was present when the interview with Steyn took place.
From the above, it is clear that Dr Boraine accepted the alleged untested allegations of General Steyn that General Liebenberg was involved in unlawful criminal activities during his tenure as Chief of the South African Defence Force, and he accepted these as correct.  These allegations were later denied by General Steyn.  
It is submitted that it is unheard of that a Commissioner accepts untested allegations and propagates them on public media on the basis that it has been in relation to the Steyn Report.  This is not what one would expect from a Commissioner who is unbiased and objective.  It appears that Dr Boraine has also come to certain fixed conclusions relating to the South African Defence Force and has made known his attitude in this regard.  There are numerous statements in the public media.  In, "The Star" of the 22nd October 1996, it was reported,
"TRC Deputy Chairman, Dr Alex Boraine, has slammed the bland and soulless submissions by the former SADF members in Cape Town yesterday.  'My overall impression is that the submission is breath-taking in its one-sidedness', Boraine said.  'I find it almost unbelievable that in 80 pages there is
 /no acknowledgment
1A no acknowledgment or acceptance of responsibility for a single death during the apartheid era'."
In, "Die Burger" of the 22nd October 1996, the following was reported as being said by Dr Boraine.
"The Truth and Reconciliation Commission rejected the proposal of the previous Defence Force - rejected this because it was factual.  The Truth and Reconciliation rejected the submission of the previous Defence Force because it was too factual and had too little content or too little soul.  This submission was one-sided and astonishing and it was audacious.  No liability was accepted for any occurrence.  The Defence Force acts as a knight in shining armour.  According to Dr Boraine this is against the facts as presented to the Truth Commission - presented by various witnesses over the past few months."
This attitude presupposes that he has all the facts at this stage.  Clearly the Vice-Chairperson's or Acting Chairperson's attitude towards the South African Defence Force impacts on General Liebenberg as the former head of the South African Defence Force.
Dr Boraine has also made certain remarks relating to the previous Government and its functionaries, as well as the Defence Force as part of the security arm of the Government, as well as certain remarks in general, which
 /impact on
1A impact on his objectivity.  The following statement has been attributed to Dr Boraine in the press.
"National Party leader F W de Klerk could have made a helpful contribution to national reconciliation if he had sought amnesty for the ill-treatment which millions of South Africans suffered under apartheid."
This is in a SAPA press release on the 14th May 1997.
"We said we weren't sure how much the politicians would include in their submissions, and that was just as well, because, as you know, Mr de Klerk made this disingenuous suggestion that the National Party was just a political arm and that the others in Government were quite separate.  This was rubbish I tried to say gently to him at the hearing."
In, "The Citizen" of the 17th May 1996, the following has been reported, 
"'It was astonishing that KwaZulu/Natal Attorney-General should act so quickly to subpoena Magoo's Bar bomber, Robert McBride', Deputy Chairman of the Truth Commission, Dr Alex Boraine, said yesterday.  He told the media briefing that he was astounded by Attorney-General Tim McNally's decision because no one seemed terribly keen to act against other people, such as former
 /security policeman,
1A security policeman, Joe Mamasela."
In the Cape Times of the 13th December 1996, the following has been reported,
"Boraine warned P W Botha and other apartheid era officials if they do not seek amnesty they leave themselves open to be charged in a court of law, both civilly and criminally.  The choice is theirs."
It is respectfully submitted that Dr Boraine has also not been as critical towards the ANC regarding their submissions to the Commission, which seems to be indicative of a possible bias.  There is presently a matter pending under case No 8034/1997, The National Party of South Africa v Archbishop Desmond Tutu, Dr Boraine and the Truth and Reconciliation Commission, the President of the Republic of South Africa and the Minister of Justice.  This matter is to be heard on the 26th August 1997.  Inter alia, the following relief is sought against Dr Boraine, namely an order declaring him to be in breach of the provisions of section 36(1) and/or 36(5)(a) and/or 36(6)(a) and/or 39(a) and/or 39(b) of the Act.  Furthermore, an order is sought to disqualify him serving as a member and as Vice-Chairperson of the Commission.
It is respectfully submitted that this aspect alone makes it inadvisable that Dr Boraine sits as a Commissioner in these proceedings.  In this application he has filed an affidavit and the facts are obviously in dispute.  There is a risk that if the relief sought against Dr Boraine is granted that all these proceedings, in effect, would then be a nullity.
 /The above-mentioned
1A The above-mentioned actions and/or attitude of Dr Boraine is wholly irreconcilable with the requirements set out by the Promotion of National Unity and Reconciliation Act, Act 34 of 1995.  The Act, in broad terms, requires the following from the Commission and/or its members.  
1. To gather and hear evidence.  To be and appear to be at all times strictly impartial.
2. After gathering and hearing all the evidence, consider such evidence and come to a conclusion, which conclusions are to be submitted to the Minister of Justice by way of a report.
Section 44 of the Act provides that upon the completion of such report the Minister of Justice must bring it to the notice of the nation by, inter alia, laying it upon the table in Parliament within two months after having received it.  Certain guidelines are laid down in the Act pertaining to the appointment of Commissioners and the manner in which they have to perform their functions.  Section 7(2)(b) of the Act provides that the Commissioners have to be fit and proper persons, impartial and may not have a high political profile.  
"The Commission and its members and staff must function without political or other bias or interference and must, unless the Act especially provides otherwise be independent and separate from any party, Government administration or any other functioning or body directly or indirectly representing the interests of
 /such entity."
1A such entity."
That's in section 36(1) of the Act.  In terms of section 36(5) of the Act, every Commissioner and member of the committee must, withstanding any personal opinion, preference or party affiliation, serve impartially and independently and perform his or her duties in good faith and without fear of favour, bias or prejudice.  
"A Commissioner or member of a committee may not, by his or her membership of the Commission, association, statement, conduct or in any other manner jeopardise his or her independence or in any other manner harm the credibility, impartiality or integrity of the Commission."
I'm referring to section 36(6) of the Act.
"A Commissioner or member of a committee may not divulge any confidential information gained as a result of his or her membership of the Commission or a committee, except in the course of the performance of his or her functions as such as a Commissioner or a member of a committee."
In this regard I'm referring to section 36(6)(c) of the Act.
"A person who anticipates any finding of the Commission regarding an investigation in a manner calculated to influence its proceedings or such findings, does anything calculated
 /improperly to
1A improperly to influence the Commission in respect of any matter being or to be considered by the Commission in connection with an investigation or does anything in relation to the Commission which, if done in relation to a court of law, would constitute contempt of court, is guilty of an offence in terms of sections 39(a), (b) and (c) of the Act."
It is respectfully submitted that Dr Boraine, in his capacity as Acting Chairperson and Vice-Chairperson of the Commission, is not complying with the above provisions and that his conduct is inconsistent with the provisions of the Act.  From the above, it is submitted that it appears that Dr Boraine is not impartial.  His various comments, as quoted, were furthermore inappropriately timed and premature, in the light of the fact that the TRC proceedings have not yet been finalised.  It is respectfully submitted that the findings of fact should only be made once all evidence has been heard and tested.  Findings should only then be made and should be contained in the TRC file report to the Minister of Justice.  Clearly, it is not the purpose of the Act to have a trial by media on untested allegations.
I would shortly like to refer to certain legal principles applicable to recusal.  In Liebenberg v Brakpan Liquor Licensing Board, 1944 WLD 52 on page 54 to 55, SOLOMON J stated the following,
"Every person who undertakes to administer justice, whether he is a legal official or is only for the
 /occasion engaged
1A occasion engaged in the work of deciding the rights of others, is disqualified if he has a bias which interferes with his impartiality or if there are circumstances affecting him that might reasonably create a suspicion that he is not impartial.  The impartiality of which of the Court is trained may often in practice be unrealised without detection but the ideal cannot be abandoned without irreparable injury to the standards hitherto applied in the administration of justice."
In Mag v Natal Nedtravel (Pty) Ltd, 1996, (3), it's an Appellate Division case, Judge Hefer commented as follows,
"A Judge must ensure that justice is done.  It is equally important, I think, that he should also ensure that justice is seen to be done.  After all, that is a fundamental principle of our law and public policy.  He should therefore so conduct a trial that his open-mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused."
Judge Jones said the following in Dumba and Others v the Commissioner of Prisons and Others, 1992 (1) SA 58 on page 63.  
"It cannot be seen to be a fair hearing if reasonable people think that a Judge
 /might be
1A might be biased.  The rule against bias is, of course, one of the cornerstones of natural justice.  I can see no reason why it should not be applied in the same as the other cornerstone, the audi alteram partem rule, which takes effect with all its vigour in all situations, unless it is especially or impliedly excluded or curtailed by statute."
Reference is made to The Attorney-General, Eastern Cape v Blom and Others decision of 1988 (4) SA 645 (AD).  
"In other words, the proper approach is to apply the wider test of a reasonable suspicion to its full extent in every case where bias or self-interest is an issue."
In BTR Industries (Pty) Ltd v Metal and Allied Workers Union, 1992 (3) SA 673 on pages 693 and 194, the Appellate Division once again stated that the test to be applied in circumstances such as these is that of the existence of a reasonable of bias.
The rules of natural justice are clearly applicable to these proceedings, as decided recently in the Appellate Division case of Du Preez Boshoff v the Truth and Reconciliation Commission, where it was found that these rules apply and that at all stages the proceedings should be reasonable and fair.
1B It is our respectful submission that due to the media and other statements made by Dr Boraine there is a reasonable apprehension of bias.  According to the precepts of natural justice, justice must seen to be done.
 /The interests
1B the interests of justice will be best served if Dr Boraine recuses himself.  The public remarks made by Dr Boraine while the Commission proceedings are still in progress would, in our submission, at least give an impression that some issues have been prejudged and that, as a result of these remarks, the Commission is not proceeding in an objective and impartial manner.  
It was brought under my attention this morning that notice was given to the State Attorney - the Commission's attorneys - that the National Party, in paragraph 3 of this letter, states as follows - the letter dated the 4th August.
"Kindly inform Dr Boraine that our client will regard any participation by him in the work of the committee as quite inappropriate and objectionable.  He is accordingly hereby requested, through your good office, to refrain from participating in the work of the committee, if such was his intention."
I am just bringing this to the Commission's attention.  I don't know if the Commission has a copy of this letter.  I beg leave to hand a copy of this letter up. 
I would finally like to submit that it is clear that certain allegations were accepted in relation to the Steyn Report that were not tested.  Certain facts have been accepted or the result has been presupposed.  Dr Boraine is an interested party in an application with the National Party at this stage and objectively there is a reasonable apprehension of bias and that it is in the interests of justice that Dr Boraine recuses as a Commissioner in these
 /proceedings.
1B proceedings.  And, in light of the fact that if any relief is granted in the matter of The National Party against Dr Boraine, in all likelihood these proceedings, if Dr Boraine were to remain, would be a nullity.