Special Hearings — Legal Hearings — 1997-10-27

AG: I most certainly, as I've said in my submission, certainly part of that mindset ...(tape side A ends) .....in the system and it is governed by politicians. Madam Chair, the way I see it, we weren't so much, it wasn't the executive or the Civil Service system that failed us, it was our parliamentary system that failed us. The fact that Parliament was the supreme authority of the State, gave them the hand to do whatever they wanted to, and they could ploy and use the tools of the Civil Service etcetera, in any way they wanted.
  I think that the fundamental change that has been brought about the new Constitution being the supreme authority in the State, and everything measured against it, will to a great extent help to prevent the abuses of the past taking place again, but we will have to be vigilant, and you need people, and let me say on a lighter note, we resolved to each represent ourselves here today because we wanted to be punished for our own sins and not for those of our colleagues. 
 I viewed the fact you had seven different personalities as your Attorneys General, and they're not scared to say what they think, perhaps they're bit scared to come along and confess, but that's a common human failing, and after all we try to be human beings, I certainly did. But your seven different Attorneys General, and that is the basis of my problem with the National Director, is that they are a bulwark against corruption and manipulation, political manipulation, and so long as, and this is the present situation in the Constitution, there are no guarantees that the National Director will not be influenced. He constitutes a greater danger of manipulation and corruption then the system of seven different Attorneys General, whoever they may be.

AG: Can I add to that Madam Chair, as my colleague had just pointed out we each have our own particular stance and we can't talk for the moral position in the political views or outlook of each other for that very reason, I would not put myself as being part of the 1984, 1985, whatever particular year you choose mindset. It was a very difficult situation on the ground that one was dealing with, I mean people were being blown up, buildings were being sabotaged, people were being killed. These were the facts that we were dealing with. It was a very messy situation and we had to as we saw it apply messy legislation without any particular crusading zeal to fight a just war or anything like that. It was a very unfortunate situation we landed ourselves in.
 If I could just make a little comment about that, that ours is a robust calling, to be a prosecutor is a robust calling, and if I can put it this way, one cannot apply vegetarian standards in a butcher shop, and that's the type of situation which one might have been dealing with in those years.

AG: Madam Chair, the two sections or two questions, first of all I think, yours is more general. Speaking for myself I cannot deny that I was influenced by my society, I'd be stupid, as even now I am regarded by someone close to me that I'm chauvinist or sexist, and I am learning all the time, therefore, I must have done something wrong at some stage, and I state that in my written presentation too. I would not have felt the sense of liberation that came with the Constitution, if I had not been caught up in some or other mindset, and I state that although I have not said it orally.
 As I have also said to I've always felt, and that's from the time of university, that we had no right to deprive others, or hinder others from personal or career development, which the system did. That has been with me all the time, but which did attenuate that mindset was my exposure to others through various agencies, and I think that is what our country lacked, that generally we were kept in a white frame, or kept in a black frame and there was no communication, and perhaps that's a problem we still face. 
 To come to the legal aspects; yes, I used Section 61 of the Criminal Procedure Act. I used Section 30 of the Internal Security Act, both to deny the hearing of bail. I used Section 31 and Section 185 Little Procedure Act in the terms of holding witnesses.
 Now first of all let us look at Section 31/185 concerning witnesses. The question put to me, Madam Chair, was why didn't we ignore this abuse of powers? Now for me those were powers which were for reaching which were not to be abused by me, although they were far reaching, and I used them where I honestly believed. Now the procedure was in terms of Section 185 as far as my office is concerned, is I had to be convinced of the necessity of it, I had to have a statement from the witness himself, agreeing to be held under Section 31 or 185, that would go under oath to a judge. I had to make out a case, that's my practice, because I did not want to abuse that.
 Section 61 and Section 30 opposing the hearing of bail, it was used rarely but it was used mostly recently in the De Kock matter by myself, before the action went out and an eminent person who happens to be rather high up on the Constitutional Court bench, who was working with me on the Third Force, says he would not have hesitated to use Section 61. 
 Now what I am trying to say to you , Madam Chair, to the question, that there are cases where one has to apply powers which are far-reaching. I am glad we don't have to use them anymore because they occasion a greater burden of soul reaching then do the normal powers. But from what I have seen, what mankind has done to mankind, there are times when you're got to use far-reaching powers. What I do say in my submission, that where my use of these powers caused hurt, hardship and alienation which were unjust, I expressed regret therefore, but I am not saying that there are not crimes in which far-reaching powers are called for. Thank you.

MR NEL: I'd like to say that from the Transkeian side we tried to limit this to the extreme cases. If I could quote you an example, the late Colonel Duli was released from Police detention by order of the Supreme Court in December '89. He went to South Africa and he immediately started plotting the coup which he brought eleven months later. The people who came in with him during the coup attempt, they were held by me in terms of the bail certificate. These were extreme circumstances, the the State itself, at that time, was at stake.
 As regards the question of the National Director of Public Prosecution, I think that we should be cautious there, and I agree with the lady who spoke here about the safeguards that should be built-in as far as possible.
 I want to refer to the recent case of Mr. Sol Kerzner, where I declined to prosecute. Had I decided to prosecute and the National Director of Prosecutions overruled me, and said he should not be prosecuted, you would have still heard this in the press today, because they would have, with justification, have said that this came from the top, whereas one man decided to prosecute, the other man overruled him. So there is some danger to the situation.