Special Hearings — Legal Hearings — 1997-10-27

UNKNOWN: Thank you Chairperson. I would like to address my question first to Mr Rossouw because the case that I want to refer to occurred in Cape Town, but it does relate to a death in detention, and several of the other Attorneys General have mentioned, the broad issue of deaths in detention. I refer to the death of the late Imam Abdullah Haroon 28 years ago, September 1969. There was an inquest, and we have been able to obtain the record of the inquest. The inquest was heard before Mr Koen, and the prosecutor was Mr Van Graan, Mr J.S Van Graan. The advocate representing the family elicited through his enquiry during the inquest, the information that for a period of about two days, certainly two nights, and the days around them Imam Haroon was removed from the Maitland police cells where he was being held for purposes of interrogation, and when he was returned there he was in very poor physical condition.
 Advocate Cooper tried to probe further to find out what had happened to him during that period when he was not accounted for in terms of the police cells, and in trying to find this out, he tried to find out where at least he had been taken. The prosecutor said, and I quote from the record, 
"He was taken out on investigation, and he was not even in the Cape Peninsula at the time. They took him out to various places as far as I can make out."
And then he further added - 
"I think in the interest of the State, I feel that we should not disclose where. Although he was not here in the Cape Peninsula, we are not prepared to disclose where they had taken him to. During the course of investigations he was taken to various places".
 Now we have been hearing today that where prosecutors and Attorneys General were looking at matters where the Security Forces were implicated, that they were lied to, that they were not given the proper information, and yet here we have a prosecutor saying that questions should not be asked because it is not in the interest of the State that they should be asked. The Court ruled that Advocate Cooper could not address any further questions in that regard. And I would like to hear comments from Mr Rossouw and perhaps from other of our Attorneys General here, how they view this case.

MR ROSSOUW: Madam Chair, the case of the Imam Haroon is a very well known case, and quite clearly a lot of things went wrong from a human rights point of view in that case. The Attorney General in the Cape at that time was Willem Martin van der Berg, who was looked upon as a capable Attorney General. Mr van Graan later on became a Regional Magistrate. I can only speculate in an answer on the question that you're asking me, because I do not have the intimate knowledge. I at the time was stationed in Kimberley.
One can speculate about whether van Graan was given the evidence by the Police who didn't want the public to know exactly which safe house, and I'm ...(tape ends)

MR ROUSSOUW: One can only speculate. I can't answer that question. I'm sorry.

CHAIRPERSON: Thank you. Follow up Mary?

UNKNOWN: I'd just like to ask if there's anything that can be done at this stage? Part of our responsibility is to reddress past wrongs and to find ways of reconciliation and rehabilitation. Is there anything that can be done at this stage to pursue the matter?

MR ROUSSOUW: Are you meaning in the case of the Imam Haroon? I would think that one is limited very severely by the fact that all the papers that deal with this situation are in possession of the people who need them and for the rest they may very well not be in existence any more. Whether you will find witnesses is also a difficult question but there might still be witnesses. Perhaps one must ask these questions and see whether there isn't somebody that may come out of the woodwork.

CHAIRPERSON: Thank you. Ilan?

MR LAX: Thank you Chairperson. There are two distinct lines that I would like to follow. The first deals with the matter raised by Mr van Lieres this morning, and it deals with, he mentioned that at a certain point in time the state began to adopt a different strategy of ceasing to use the more overtly political legislation as a basis for prosecutions, and instead to begin to use common law offences as a basis for those prosecutions. And at the time there was a perception, certainly amongst human rights lawyers, the state was seeking to legitimise those prosecutions and depoliticise them when in fact they were nothing more than political prosecutions. What are your comments on that?

AG: Can I make one point on that to start off with, and that is that as I recall those times there was severe criticism for people using all these various security legislation to prosecute people when there were perfectly good common law crimes which dealt with all of these things. For example why charge someone with sabotage if you can charge him with arsenal, malicious injury to property and so on. I think you have, there's a certain point in what you say. That the criticism is one is using the special legislation. If somebody on the other hand has committed a robbery or a murder or whatever else there is a crime then prosecute along those lines. Then one doesn't have any particular advantages from onuses and criticism like that. Yes there's a certain point to that.

MR LAX: The thrust of what I'm asking now is was there a deliberate policy to depoliticise those crimes so that they would attract less sympathy in the broad community as a strategy. In that sense one is saying in your statistics you could justify for example "that we only prosecuted murders, there were no political prisoners, there were no political prosecutions." And that was a strategy used by ministers at the time. They would say in parliament; "These are not political, these are just straight murders. And we're prosecuting them on that basis." So you see the thrust of what I'm saying. I'm not one moment reprimanding you for failing to use that legislation. It's the psychological impact and the political impact of it.

AG: Well can I start off by taking that follow up as follows. I was not an attorney general at that time so I can't comment. I certainly didn't hear of any joint decision that everybody as from tomorrow set off in a new direction. It probably came about that one attorney general started moving in a particular direction. For example treason cases; there was a long hold-up after the famous state versus Adams high treason case which ended in the early 60's I think. The one that went on for many years. There were then no treason cases until I think in Natal in about 1977 or '78. Somebody decided, I don't know for what reason that they had enough evidence to start treason prosecution. When that one succeeded other attorney generals probably saw that it can be done and followed that route. I think that's more likely what it was than a deliberate round table conference with everybody deciding that we all step off in a particular direction.
 But it's difficult sometimes to - there is a blur there. I was involved in a case myself where I prosecuted two people, MK. people who came back and assassinated somebody because as they believed he had betrayed the cause. That to my mind was a murder case but it certainly wasn't stuck away as being non-political. Everybody knew that there was, what the background was. It was reported as such. The security police were obviously in attendance. They were investigating. So I don't think one would have managed to hide away the thing in any way like that.