Special Hearings — Legal Hearings — 1997-10-27

LEE BOZALEK: Thank you Madam Chair and Commissioners for this opportunity to make a submission. I have made a written submission which in fact was initially my response to a request from NADEL for some information, but I then decided to put it in as a personal submission and obviously I speak here only in my personal capacity.
 I was then asked to present the submission and after some hesitation I agreed. My hesitation was occasioned by the fact that my experiences and my insights which I relate here, I would think are really relatively commonplace amongst the people who did this kind of work in the past few decades.
 The second reason was that there are a lot more people who are better qualified than I am to speak of this. People with longer experience or a greater depth of experience, but perhaps there's some value in your Commission having the view of a member of the infantry so to speak, since you've heard and will continue to hear the evidence of the generals.
 If I can then just go through quickly, my submission, you - as I say it's on record and I know that you have your own time difficulties here.  I base my submission on the experiences which I had practising as an attorney in Cape Town from 1975 to 1994 and that was initially in a private firm and then working for many years for the Legal Resources Centre.
 Now, particularly in the earlier years of my employment I did quite a lot of work in the Magistrate's Court representing clients who were charged with offences such as public violence, arson, possession of banned literature, trespass, illegal squatting and also statuary offences such as terrorism and the like.
 Dealing with the hearings, the nature of the hearings that the client would receive, I'm going to talk mainly of my experiences in the Magistrate's Court because experiences of people in the Supreme Court are better documented and the academics have full scope for criticising and analysing the role of the Supreme Court, but I think the Magistrate's Court is where most people experience the legal system and much of that is undocumented. 
 I've said here in my submission that I seldom felt that my clients would ever get an impartial hearing in this type of case in the Magistrate's Court and that was because of the make-up of the court. For most cases they were Afrikaner White males and obviously civil servants and the identification of these magistrates with the ethos and the values of the apartheid Government was often manifest in the manner in which they handled these trials.
 I've also recounted here, I remember consulting a book called The Super Afrikaners by Hans Strydom and Ivor Wilkens and going to the incomplete list of Broederbond members which they listed as an appendix and there I found the names of two Regional Court magistrates in front of whom I'd appeared in cases with a political flavour and where my clients had received distinctly unsympathetic treatment.
Now, to my mind membership by these magistrates of the Broederbond should have disqualified them from hearing any case with any political connotations whatsoever. I also have little doubt that their membership of the Broederbond was directly linked to their membership. to their position as - their appointment as Regional Magistrates.
 Now, these experiences in Magistrate's Court highlighted for me the necessity for the judiciary and by this I include the Magistrate's seat to be entirely independent of the Government of the day.
 A further aspect which was obviously a huge problem was that the courts were in no - the magistrates were in no way reflective of the composition of the country and that is something which I think we still have a great problem with and obviously the Bench has to be, to a much greater extent, representative of the situation in the country as a whole.
 There is no doubt in my mind that there was a very serious political bias in the Magistrate's Court in the years past and this was evidenced to my mind by the relatively uncritical acceptance of police evidence with corresponding scepticism of the evidence given by the accused or his her witnesses. My experience was in these case that there was quite a substantial margin of discretion which any magistrate had in a given case very often relating to issues of credibility and in these case this discretion was almost always exercised by the magistrate against the accused and in favour of the state.
 As I say I'm not going to deal with the role of the Supreme Court, but I will say that right of appeal to the Supreme Court was incredibly important in those days. Part of the problem was, however, that very often it had strained the resources of the accused or the organisations which supported these accused to obtain legal representation.
 Merely in the Magistrate's Court an appeal often was a right which one couldn't exercise. 
 Now, I was also asked to talk about the lack of legal representation and I would just say to sum up that there were - where an accused was properly represented and defended, there were already huge problems, but where you had a case where people charged with political offences appeared in front of the Magistrate's Court without legal representation, then as far as I'm concerned they were goners.
 I was involved tangentially in such a case and that was representing a sixteen year old who had been convicted in the Magistrate's Court here in Johannesburg on account of terrorism which at that stage carried a minimum sentence, an obligatory sentence of five years and it was quite astonishing to read the record and find that he had appeared in the Magistrate's Court, absolutely unrepresented, his mother had stood by him, I'm sure she had not the faintest idea of what - of the import of the legal proceedings and he was convicted. He was eventually - in review proceedings he was - the conviction was set aside and he was freed, but not after he spent two or three years on Robben Island. I might add also that those were not automatic review proceedings where the courts are supposed to scrutinise the sentences of imprisonment above a certain limit where the accused was unrepresented, but this in review proceedings which had to be launched on his behalf, civil proceedings.
 Dealing now with the assault and torture of accused persons. On many occasions in these cases we would present evidence of the accused having been assaulted and tortured by the police. Generally the sole purpose of this evidence was to create a doubt with regard to the admissibility of statements or confessions taken by the police from such accused after their arrest. I say this was the sole purpose, because no magistrate in front of whom I ever appeared, to the best of my recollection, ever expressed any concern or initiated any separate enquiry into these allegations of torture or assault as the case may be. The magistrates were in fact extremely sceptical of these allegations when they were made by the accused either in remand proceedings or on trial. These allegations were always denied by the police and since the prisoners were invariably held at least for a period incommunicado and certainly without ready access to doctors or lawyers, the physical proof of these allegations had often long since evaporated by the time that they were tried in court.
 I recall one particular which was remarkable in my experience. There were about six or seven accused and for some reason, I can't remember how it came about, they had been seen by a district surgeon who was obviously a man of some conscience and he had produced an official report on each one of them, recording their bruises, contusions, what have you swellings on all of these youths, and he was eventually called to testify in the court and I recall how -with what hostility his evidence was greeted by the prosecutor and semi-indifference by the magistrate.
 To my mind there was an understanding at the Magistrate's Court level between many prosecutors and magistrates that if some violence was used against persons accused of political quote unquote "anti-social acts", then they as court officials would be prepared to turn a blind eye thereto.
 I would also like to deal with the role of the prosecuting authorities and I've observed that in these cases I found a zealous over-identification by prosecutors with the state or the police case and this attitude I believe led to many irregularities, most of which will probably never come to light, because of the privileged nature of the communication between the police, the prosecutors and their witnesses.
 There are however two abuses which I would wish to record. The first was the practice of arranging for political trials to be held in centres geographically distant if not far flung from where they would normally take place. So, for example, in Cape Town cases would routinely be transferred to be heard in Malmesbury court, some 100 kilometres distance or Hermanus court. Well, Malmesbury is about 50 kilometres, Hermanus is about a 100 kilometres distance. These trials were often long running and these arrangements created great expense and inconvenience, if not hardship, for family members of the accused who wished to attend the trial and also for the defence team.
 The only reason ever cited by the authority for these arrangements was security and I might say that this was a decision which was taken by the prosecutorial authorities and as defence lawyers there was no application where one could join issue with this.
 I believe however, that the primary motivation for these decisions was to deter the public, in particular supporters and friends of the accused from attending such trials in order to insure inter alia that state witnesses, often accomplices, did not testify in front of a gallery supportive of the accused. This ploy on the part of the prosecuting authorities was very prejudicial to the accused since potential witnesses who might have challenged the evidence of state witnesses were to a large extent denied the opportunity of hearing such evidence.
 An even more cynical variation of this occurred in a series of trials which took place, some six or seven arson trials in the Malmesbury Magistrate's Court where to our initial bewilderment a sixteen year old youth was added as the last accused in each case. At the end of each - then at the beginning of each case the state prosecutor would ask that the court be cleared for the duration of the state evidence, because this was a minor. At the end of each state case, this accused was acquitted without his name so much as having been mentioned in evidence and I must say it took a bit of time for the penny to drop, but when it eventually did I realised that his sole purpose was to be put in there to close up the court during the state case.
When I confronted this prosecutor with this, his bluster as far as I'm concerned only acted to confirm my suspicions in this regard.
 Although I did encounter exceptions in my experience - generally my experience was that most, many prosecutors saw it as their bounden duty to secure convictions in political cases and they threw away whatever objectivity they might have had as soon as they took on the case.
 There is also the question of visits by magistrates to prisoners and detainees. I must say all I can say in this regard, in regard to magistrates is that I'm unaware that there was any regular visiting by magistrates or if there was that it ever produced any tangible results.
 I've already discussed the question of legal representation of the accused in political trials, so I'll leave that. One comment that I would like to make in this regard is that I feel that insufficient credit has been given to those organisations which laboured during the - at least in my time during the 1970's and 1980's to raise funds and to co-ordinate legal representation of accused persons and the funding thereof. Here I include bodies such as the South African Council of Churches and one of its projects, the Dependence Conference. As far as I'm aware the organised legal profession in the form of the various law societies or the Association of Law Societies made no contribution in this regard despite having, as I understand it, substantial discretionary funds on hand.
 I would also like to deal with the question of sentencing policy. As far as this is concerned it's my view that it was clearly skewed or distorted with the view to severely punishing any criminal "manifestations" of political decent. Priscilla Jana has already mentioned the notorious case of the person who was sentenced to imprisonment for having Viva Mandela or Free Mandela scratched onto his coffee mug. In my experience this became manifest in public violence cases where youthful offenders even committing a first offence, ran a grave risk of being sentenced to a term of imprisonment. This was even when there was no physical injury or damage to property having been cause arising out of the incident. 
 It was apparent that the sentencing policy as regards public violence was rendered much harsher by virtue of the presence of political motives. It was notorious in Cape Town from the basis of what we believed to be carefully schooled police evidence an accused was found to have given a Black power salute at which - and the evidence would always be that the crowd surged or responded at this point -that person would be found guilty of public violence and stand every chance of being imprisoned.
 It is furthermore in my general impression that the Supreme Court, although it did in many instances mitigate the harshness of some of these sentences, was also swept along by the prevailing sentencing policy and imposed sentences of considerable severity in circumstances where, in my view at least, the element that the accused was acting with a political motive in the circumstances of our country, should have acted as a mitigating factor and not the contrary.
 This sentencing policy also extended to other common law crimes involving a political motivation. One example I remember particularly was a student whom I represented who was found guilty of malicious injury to property. He drew some slogan on a wall. In fact it was touch-and-go whether he was initially detained under security legislation.  I think the police eventually decided that this didn't warrant a charge under the security legislation. He was charged with malicious injury to property. He pleaded guilty and was found guilty and he was sentenced to a very, very substantial fine. Quite ridiculous given the fact that he was a student and had no financial resources. No objective person considering the sentence could have failed to infer that it's harshness was motivated by the fact that the slogan was of a political nature.
 In summary, in my view, there's no doubt that the make-up of the magistracy and to a lesser extent the judiciary was such that political offences, be they statutory or common law crimes, often received a disproportionately harsh sentence. In that sense the criminal justice system failed to remain objective and became an extension of the state in seeking to crush political descent. 
 I talk also about the role of the Attorney General and the police and what I have observed - what I observed was that in many cases people were subjected to assaults by members of the police. Many of these with fatal consequences. In the early years of my practice I used to advise clients to go and lay criminal charges in these cases. I can think of no instance when a prosecution ever followed. On occasions we would write to the Attorney General querying these failures to prosecute and my understanding was that that decision lay always with the Attorney General in the final instance and I can never - I can on no occasion recall the Attorney General ever reversing any such decision and a request for reasons was always refused.
 I note with some irony that following the proceedings of the Truth and Reconciliation Commission in Cape Town some months ago a member of the police who shot someone whose family I represented in Worcester years ago has now been charged with capable homicide. Nothing has changed in that case. We wrote to the Attorney General ten years ago or however long it was and there was no prosecution. Now there's a prosecution. The overall impression which I gained was that a prosecution of the police would only follow if the police in question had admitted to the unlawful assault or if a cast-iron case had been build up.
 Since the police always denied the charges and since the case was invariably investigated by policemen who were sympathetic to the accused, no such case was ever made. After going through this charade for several years, I no longer - I ceased advising my clients to lay criminal charges. 
 My experience was also that although the criminal charge would come to nothing if and when a civil claim was brought later, those statements which the client made in the criminal case and which didn't lead to a prosecution, would be produced, hauled out and they would be used as cross-examination material against the client.
 This is the question - a matter about which I feel quite strongly and with an eye to the future, I believe that where allegations are made against the police the investigation should be carried out by a unit which is independent of the police and if I may put it plainly, enjoys a reputation for greater probity and impartiality than the ordinary investigation units of the police.
 I deal with the question very briefly of judicial inquests. One doesn't want to commit the plain error of saying that all magistrates were bad. I acted for a detainee who was found hanged in his cell. We had an inquest in front of a Cape Town Magistrate. He did everything he could to arrive at the truth, but where you have a situation where the detainee is dead your only witnesses are the police your chances of arriving at the truth no matter how scrupulous you are, are very limited as the Biko inquest has - the Truth and Reconciliation proceedings in regard to the Biko death have recently illustrated.
 I would also like to address briefly the question of the role of the Law Society in these matters. Although I'm no longer a practising attorney the experiences that I'm talking about took place while I was practising as such, therefore I'll restrict my comments to the Law Societies.
I must say I was never particularly close to the Law Society or on its committees or what have you. My overall impression - but I read its reports and followed its pronouncements in the press and so on, my overall impression of the role of the Law Society in relation to human rights matters was that it was self-handicapped by seeing itself as a representative of a wide range of attorneys with differing views on the matters particularly in "sensitive areas" such as the rule of the law and the administration of justice in an apartheid society. That being so the Law Society appeared reluctant to issue statements or initiate action which would be seen by a sizeable number of its members or even a majority as being of a political or anti-governmental nature, instead the Law Society seemed to be more comfortable with the role of representing its members on bread and butter issues, acting almost as a trade union with the economic interest of its members were its paramount concern. In this regard I believe that the Law Society failed to exercise a leadership role in encouraging its members to critically examine the distortions in the system of justice and the ways in which it and they could play a greater role in combating these distortions and inequities.
 But I must say that in my dealings with the Cape Law Society I found them sympathetic to the establishment of the Legal Resources Centre, when I was involved there, and cautiously supportive thereof. I must also say that that didn't necessarily translate into substantial financial assistance and I also at times in later years felt that the Law Society, given that background, were sometimes too quick to claim credit for the existence of the Law Society. But perhaps that's a slightly negative thought on my part.
 I am aware that the Law Society made some public statements expressing concern about aspects of the administration of justice through the years, but overall I don't believe that enough was done.
 The excuse can be raised by lawyers in South Africa that the will of Parliament was paramount then and there was no constitution which provided for a testing power on the part of the courts etc. I don't - while there's substance in that contention of course, I don't believe that that in any way excuses the Legal profession for its participation or its relative passivity in the face of the construction and enforcement of the apartheid state which reached its apex in the period from 1948 to 1991.
 We as lawyers were supposed to be the custodians of the centuries old common law, which was theoretically colour-blind and non-discriminatory and the Legal profession should have done a great deal more to protest and work against the distorted system of ...(tape ends)
....using their training and experience. Such people were, however, a relatively small minority whose views or actions often made them unpopular with their colleagues and in some cases made them actively reviled.
 To my mind the primary lesson of our recent past is that the legal system was unable to maintain sufficient independence from the Government of the day with its racist ideology and policies.  It became instead to a large extend either a tool of the state in enforcing apartheid policy or simply fulfilled the limited traditional role of maintaining and regulating personal and commercial relations between parties.
 As far as the ideals of our future legal system are concerned, the lessons I think of our recent past must be that we must never again place unbridled power in the hands of the legislature and lawyers must be vigilant to defend the values which have been enshrined in our new constitution and our new Bill of Rights, even when doing so may entail a sacrifice in certain other areas. 
 As far as legal education is concerned, I think that should be framed in such a manner that the inherent values and ideals of our legal system are inculcated in lawyers at an early stage of their training so that lawyers are not produced who are simply technicians in particular areas of the law.
 I believe our system must aspire to one where the Bench is wholly independent from the Government. The Supreme Court has always enjoyed a considerable measure of independence, but the same cannot be said of the magistrate's profession, comprising as it did and does, people in the public service, given that such employees were directly employed by the Department of Justice it was inevitable that with exceptions they would lack the independence and impartiality which are the attributes of a judiciary which can command respect. I believe there are moves afoot to separate the magistrate's profession from the state and I hope that these don't simply remain a distant ideal.
 I think I've probably - one final point I'd like to make is that I would also like to see the Legal profession as an organised body should create and support opportunities and mechanisms for lawyers to do work which promotes and protects human rights and generally afford this work the support which it deserves.
 I have probably said everything I have to say. Thank you.