Special Hearings — Legal Hearings — 1997-10-27

MR ROSSOUW: Madam Chair, thank you. I want to be brief. I haven't been a practising Attorney General for the last six years. The first three of those six years were served on the Goldstone Commission, and I agree with my colleague, D'Oliveira, that that certainly gave one a totally different perspective.
 I also agree with him on the other things that he has mentioned, and I'm not going to talk to you any further about what lies in the future, because I think that the practising Attorney General should do that, and can do that better than I can. 
 I want to quote only one paragraph from my short submission, and it reads like this, 
"For the greatest part of my career I practised Criminal Law as a Prosecutor within the previous political dispensation. I applied the laws supporting the apartheid system and contributed to the division and oppression of sectors of our society. As a product of that environment, on occasion I may have believed accusers too readily and may have been insensitive to hearing or investigating claims of injustice. I confess that these were imperfections, and I ask forgiveness of those persons who suffered as a result"
 I want to make two further points, Madam Chair. Last night I became aware of a submission that has been circulated by Mr Hendricks, who is in the audience I believe, and his submission was that he had become, he was one of the earlier prosecutors from the so called Coloured community. He was placed in a completely untenable position of having to examine and prosecute something like the Group Areas Act. He refused to do so. He states that I summoned him to my office, and bluntly told him that he had to do the work. If any discourtesy on my part is implied, then I want to apologise both for not understanding the position sufficiently, for not having enough sympathy and for not treating Mr Hendricks with the necessary courtesy. I have been able to say this to him personally, I am also doing that now publicly. 
 The other, and the last point that I want to deal with, and I want to do this as shortly as possible, is in the submissions there was also mention of the Trojan Horse case. The salient features of the Trojan Horse case was that I believed that there was not sufficient evidence of the intention to file a murder charge, using the logical legal tool of common purpose. On the charge of culpable homicide there was insufficient evidence between the death of a particular person and a particular accused person. The decision not to prosecute enjoyed a lot of public notice. I gave Mr Coetzee, the then Minister of Justice, at his request, my reasons for deciding not to prosecute. Mr Coetzee explained them to various Houses of Parliament, and I remember there was half a page in the "Cape Times" on this particular aspect. 
 In the event a private prosecution was instituted and it was led by very capable counsel. I noted the progress of that prosecution closely in case the State should step in and continue the case. I was requested indirectly to do so when the presiding judge, Judge Williamson, refused the accused Police's application for a discharge at the end of the State case - I'm sorry, the end of the prosecution case. I refused to do so. In the event that there was an acquittal, and the judge's reasons for acquitting the accused traversed the same grounds that I had given to Parliament via the Minister of Justice. 
 I don't think that it was, perhaps through my own fault, realised by people that I had great sympathy with those people that had died in this incident, but criminally legally there was no case.
 Subsequently the Minister of Police settled a civil case out of Court. Perhaps it needs to be explained how that can happen. In a criminal case the onus of proof is to prove beyond reasonable doubt. Let's say for the sake of illustration that that represents 80%. In a civil case the onus of proof is to prove on a balance of probabilities. Let's say that that represent 51%. It will readily be seen that there is quite a big window of what people may regard as sufficient proof, and it is sometimes that this isn't taken into account. This is what happened to Mr O J Simpson in America, and explains why he was acquitted in the criminal case, but lost in the civil case. 
 Thank you Madam Chair.

YASMINE SOOKA: : Thank you. Mr Roberts.