Special Hearings — Legal Hearings — 1997-10-27

MR VALLY: : Unsolved murders. There has been criticism even by legal academics, such as Professor Dugard saying, that in view of your finding during your investigation, by what was called the McNally Commission, you should have recused yourself from taking any part in the Harms Commission. What's your response to this?

MR MCNALLY: : I don't believe that that is a valid point of view. What happened was that, when I was appointed to the Harms Commission, the Mxenge matter was not an unsolved murder case, because Nofomela was actually being prosecuted in the Supreme Court in Pietermaritzburg at that very time. I caused it to become an unsolved murder case in a sense, and I'll explain to you that sense, because I was asked by Judge Harms to call together all the legal representatives of the parties to the Commission, which I did, and we discussed the way forward and what evidence should be led in the Harms Commission, and one of the matters that came up was the Nofomela matter. I pointed out that it wasn't available to us as a subject for inquiry at the Harms Commission, because it wasn't an unsolved murder, so with the consent of all the people at that meeting, as Brian Currin and all the other legal representatives, Wim Trengove was there if I remember, and many others, it was decided that I should asked my colleague, Mr Imber in Natal to withdraw the charges against Nofomela, so that the Nofomela matter could be dealt with at the Harms Commission in its full context. At that stage it occurred to me that there might be a problem with my own participation due to the fact that I had been involved in the McNally enquiry, so in consultation with Judge Harms, I approached the Department of Justice to second a second advocate as counsel to the Commission with particular reference to the Nofomela matter, and my colleague, Advocate Roberts was so seconded, and it was actually he and not I who dealt with the key features of the Nofomela matter. For example when Coetzee's evidence came to be taken in London, I did not even go to London to be present at the taking of his evidence, Advocate Roberts went with the Commissioner and with members of the, other members of my investigation team. So, I was aware of the problem and I took, what I believed to be appropriate steps to solve it.

MR VALLY: : The issue was this that Nofomela had made certain allegations regarding death squad activities. Harms Commission had to look into unsolved murders and that was because the President at that time, President De Klerk was under pressure regarding unsolved murders allegedly as a result of death squade activities. If that is correct, surely in terms of your findings for the McNally Commission you had made a decision, you had made a finding, you should have recused yourself from the Harms Commission, and the question is, that whatever position you took in the Harms Commission was already tainted. In terms of maintaining your position as an unbiased Officer of the Court, and an Attorney General, you should have formally recused yourself from that appointment. And I am not talking about whether you talked to Nofomela or Coetzee as individuals but in terms of the principle, why did you not do so?

MR MCNALLY: : I think I have explained to you that I took steps for another counsel to actually handle the Nofomela matter, so that I could be released from that particular function because I recognised the problem that you are putting to me now. But I would also like to point out to you that I have a measure of intellectual honesty which you don't seem to credit me with, and that intellectual honesty allows me to make a finding such as I did in the McNally inquiry, which was on that evidence and then to reconsider that matter if anything new came up. It was my wish that at the Harms Commission, evidence would be found which would enable Judge Harms to make a positive finding in regard to the Mxenge matter. The Mxenge killing was a killing that absolutely revolted me. There was a picture of Mxenge available to us at the Commission and in my inquiry which caused me revulsion and which caused me to want do anything that I could to bring those responsible for his death to justice. So I wasn't tied to my finding, if new evidence had come up I would have been only to glad to cooperate in bringing it up. But as I say it wasn't I who was dealing with Nofomela at the Harms Commission, it was Advocate Roberts.

MR VALLY: : Mr McNally, KwaZulu Natal province has had one of the highest murder rates in the country. You have been Attorney General of KwaZulu Natal since ...(intervention)

MR MCNALLY: January 1993, officially since December l992.

MR VALLY: There is a perception amongst NGO's and amongst certain members of the legal fraternity that a large degree of impunity exists in KwaZulu Natal in terms of the lack of prosecutions and the lack of convictions. What is your response to that?

MR MCNALLY: : I would like an opportunity to discuss that with the NGO's. I believe the perception is wrong and I can certainly say under oath here that I and members of my office do everything within our power to bring murderers to justice from whatever political persuasion they may come. I draw your attention to the fact that eight High Courts or Supreme Courts, as they used to be called sit in KwaZulu Natal every day of the court year, and the idea that we don't bring prosecutions to court is absolutely ridiculous. Those eight courts are busy day in and day out and we don't just bring murder cases to the Supreme Court these days, we bring them to the Regional Courts and those Regional Courts are so busy that they're booked up till April or May of next year already. So there is a very vigorous campaign of prosecution in KwaZulu Natal quite contrary to the perception that you mention.

MR VALLY: : I have been sent a note saying no more questions, so I'll just try and sneak in two and then there is other very short questions Madam Chair. The other questions which you answer together with the other Attorneys General when we have the more general session.  The first question is this. There is an instruction in your office that all charges regarding members of the Security Forces more specifically the Police, those dockets have to be referred to you and you've got an explanation why in your submission. Of the complaints that come to your office, what percentage of them do you actually prosecute? I am talking about complaints regarding Security Forces, and what's your success rate?

MR MCNALLY: I'm speaking from memory, so please accept the figures that I'm about to give you from memory. We're prosecuting 34% of those cases, and our success rate is 43/47% something in that order.

MR VALLY: : So of that 30% of complaints, 15% of them are successfully prosecuted.

MR MCNALLY: No, of the dockets that we receive for consideration, 34% result in prosecutions, and of those that go to prosecution 43/47% result in convictions.

MR VALLY: : My very last question is this; regarding the relationship with the ITB (Independent Task Board) and Independent Task Unit, they had serious differences with you on the issue of whether to call Dali, Xolo, Luthuli, as a witness in aggravation in the Mbambo Mhikze matter. There was a time when you advised Advocate Kunig in writing, at very short notice that you didn't regard him any longer as a member of the AG's office. Can I put it to you that your relationship was a bit more stormy than you indicated earlier?