Special Hearings — Legal Hearings — 1997-10-27

BONGANI MAJOLA: Chairperson and members of the Truth and Reconciliation Commission, I would like to express gratitude to the Commission for inviting and giving this privilege to the Legal Resources Centre to appear here and to make this oral representation.
 At the outset I would like to make a disclaimer to explain that the events that I'm going to deal with here took place before I joined the Legal Resources Centre, but that I have compiled the presentation based on the assistance that I've received from colleagues in the Legal Resources Centre and those that have left the organisation.
 The Promotion of National Unity and Reconciliation Act 34 of 1995, requires the Truth and Reconciliation Commission to enquire into the gross violations of human rights that took place in South Africa during the period commencing on the 1st of March 1960 and ending on the 10th of May 1994.
In the process the Commission is required to establish as complete a picture as possible of the causes, nature and extent of the gross violations of human rights that took place in South Africa under apartheid.
 In the pursuit of that objective the Commission has invited representations and submissions which may assist it to establish that role - what role the legal system played in the facilitation of this said gross human rights violations.
 In response to that invitation the LRC has submitted previously a written submission indicating how the legal system contributed to gross violations of human rights.
 The TRC has made a further request to the Legal Resources Centre to make an oral - this representation that illustrates how the state harassed and intimidated the organisation. This oral submission therefore aims at assisting the Commission to understand how the state intimidated organisations that used the legal system among others to ameliorate the harshness of the apartheid laws, policies and practices.
 We would not have wished to talk about the Legal Resources Centre, that is about ourselves, but we do it because we have been requested to do so in order to assist this Commission.
 I would like to emphasise that the intimidation and harassment that was experienced by the Legal Resources Centre and its staff members, is not the worst that was experienced under apartheid. We know that other organisations suffered much worse than we did.
 In order to understand the harassment that was experienced by the Legal Resources Centre in the hands of the apartheid system it is necessary first to understand the constitutional system that operated in the country and served as a framework within which laws, policies and practises were crafted and executed.
 Under (indistinct) principle of Parliamentary sovereignty, the South African Parliament was supreme and could pass any legislation. This meant that Parliament could pass even unjust laws and enforce them through the executive and the judiciary.
 The doctrine of Parliamentary sovereignty was and still is applied in England today, but with the necessary safeguards. On the other hand the South African Parliament spared no effort in using the doctrine to pass the most unjust, repressive and irrational laws in the history in this country, if not the history of the world. Such laws included the Suppression of Communism Act, the Group Areas Act, the Mixed Marriages Act and many others. In terms of and under these laws the Government managed to deal with all kinds of challenges to the system of apartheid. It was able to deal with and "neutralise" individuals, groups and organisations which were opposed to apartheid. 
 The Legal Resources Centre was founded at the height of this repression in 1978 by respected and influential members of the Bar and Side-Bar and I would like to mention them. They include Advocate CD Kentridge, Advocate Arthur Chaskalson, Advocate Felicia Kentridge and attorneys Charl Cilliers ...(tape ends)
... that it used the law itself to challenge abuses of power by the state and to criticise the state.
 On the other hand, in order to fortify itself, it appointed respected judges of the Supreme Court as members of its Board of Trustees. In that way it made it a bit difficult for the Government of the time to ban it, based on what the organisation was doing. However, this did not stop the Government from using tactics to discredit the organisation, to intimidate it and in "to neutralise it".
 Among tactics used both to harass and neutralise the LRC are the following and I intend to be brief just to give examples. There are many other tactics that were used, but for purposes of this submission I've chosen just a few.
The first thing that the system wanted to do was to weaken the organisation by weakening its governing body which was the source of its income. The activities of the LRC are funded by the Legal Resources Trust and this has been the case since its establishment. 
 In order to strengthen the LRC, some judges were appointed, as I have said, as trustees of the LRT. Those included judges from the various divisions of the Supreme Court, the Natal Provincial division, the Cape Provincial division, the Transvaal Provincial division and so on.
 Around 1986 a campaign was launched by the Government to intimidate or coerce all the judges who were trustees of the LRT, to resign as members of this organisation.
 In 1986 the then chief-justice of the Appellate Division contacted some of the judges presidents of the Supreme Court advising them that the Legal Resources Centre was a subversive organisation which was about to be banned and that some of its members were about to be detained. The judge presidents were informed that this would reflect badly on the judiciary, since some of the judges in their divisions were trustees of the organisation. The judge presidents in turn had discussions accordingly with the judges that were trustees of the LRC.
 In one instance, due to the fact that the particular judge president was on leave, the chief-justice took it upon himself to discuss the matter directly with the judge in the division who was a trustee of the Legal Resources Centre.
 This strategy to intimidate judges to sever their relationships with the Legal Resources Trust, all but failed, as only one trustee who was then judge in one of the divisions succumbed under this pressure and resigned. But I'm happy to say that the other judges who were trustees of the Legal Resources Centre, did not resign. In my view the security establishment had managed to get through to the judiciary by convincing the chief-justice to serve as its agent to weaken the Legal Resources Centre. That the executive could use the judiciary at all is extraordinary and highlights the fact that the power of the state had become so unbridled that it was having no qualms in corroding the independence of the judiciary.
 The second tactic was to keep the Legal Resources Centre under surveillance and to use the information obtained to discredit it. Soon after its inception the Legal Resources Centre had dealt the apartheid system some major blows as far as some of the legislation of present Blacks, the formally so-called Bantus, was concerned.
 By the end of 1980 for instance, it had obtained the landmark Appellate division decision in Kumane versus Bantu Affairs Administration Board for the Peninsula area which struck down regulations that purported to prohibit Black men who were lawfully living in urban areas from living there with their wives and children.
 The legislation under which the regulations were framed as well as the legislation itself, were aimed at destroying the Black families among others. The result of this case was that thousands of Blacks acquired rights to live in urban areas with their families, a result which was contrary to the aims of the policy of separate development, which required that Blacks should have no rights in urban areas, but only in homelands.
 The Kumane decision was soon followed by another Appellate Division decision in Rikoto versus Die Oos-Randse Administrasieraad. That case was decided in 1983. In order to prevent Blacks working in urban areas from acquiring rights of permanent residence in those areas, that is urban areas, labour regulations governing Blacks required that these Blacks returned to their rural areas once per year on leave in order to renew their permits to work in urban areas.
 Section 10 of the then Bantu Urban Areas Consolidation Act 25 of 1945, provided that a Black person would acquire rights of permanent residence in an urban area if he or she had worked in an urban area for a continuous period of ten years. Administration boards which implemented these regulations interpreted the period spent in the rural area on leave for purposes of renewing the work permit, as a break or an interruption in the period required to obtain the right of permanent residence.
 The result was that Blacks who worked for one employer for more than ten years never acquired the right of permanent residence in urban areas. The court decided that the period of absence on leave did not affect the continuity of the required period. Once again tens of thousands of Blacks acquired rights of permanent residence in urban areas contrary to the policies of the Government.
 As a result of these and other successes which the organisation scored against apartheid the Government felt very threatened. It was accused - the Legal Resources Centre was accused of supplying negative information about the South African Government overseas and locally. The LRC was perceived as limiting the effectiveness of the state of emergency by supporting advice offices. For example, the Government was worried that although the state of emergency was curtailing the activities of advice officers these were actually increasing in number. That was around 1986 '87. It therefore mounted measures to contain the threat posed by the LRC. One of those measures employed was to monitor the organisation even more closely and to place some of its activities under strict surveillance.
 For example, in 1989 the security police planted listening devices in a hall used by the Legal Resources Centre for its annual general meeting at the Mount Grace Hotel in Magaliesburg and recorded the proceedings, apparently with the knowledge and co-operation of the hotel management of that time.
 The LRC became aware of this after the AGM and formally complained to the then Minister of police - sorry - Minister of Justice and Commission of Police. An investigation was promised, but as usual nothing was done.
 The incident at the Mount Grace Hotel has been reported to the Truth Commission before at an earlier hearing on the KTC events in Cape Town. We understand that the Truth Commission did inform the Mount Grace Hotel about our allegations, but the Hotel has to my knowledge not said anything about that.
 The third instance that I would like to refer to, is propaganda against the organisation. The former South African Government is known for its religious use of propaganda. At some instances such propaganda was used against the LRC at different levels.
 Conservative members of the Provincial Law Societies and some members of the Association of Law Societies were won over by the security establishment by being made to believe that the LRC was not only subversive, but was also in breach of the terms under which the various law societies had allowed it to conduct its business in order to help the poor and the disadvantaged.
 In an extremely secret document entitled Strategie ter Bekamping van die Legal Resources Centre of 27 October 1989 and written under the auspices of the then Minister of Justice, Minister Kobie Coetzee, the latter wrote to the members of the then enlarged state security council that the LRC sometimes misused the law by using the court as a propaganda platform to give prominence to what it alleged were irregularities on the part of the Government.
 At page 16 of this document it suggests that the Association of Law Societies and the General Bar Council be made aware that the LRC is a threat to the legal profession.  It went on to say in paragraph 6.2 that this would be done through those members of the legal profession who were sympathisers with the directorate for justice, who would then be asked to prevail upon their different Law Societies and Bar Councils to understand the LRC as being a threat to the Legal Profession. If the Law Societies and Bar Councils failed to act, so the document went, or to put their houses in order, then legislation would be passed to regulate the situation.
 The aim of the legislation would be to neutralise the Legal Resources Centre. Having regard to what the TRC has previously heard in its special hearings on the defence about the use of the language by state organisations such as the State Security Council, it is probably fair to interpret the word neutralise to mean ban or close down.
 The fourth item that I'd like to raise relates to the cutting of the funding sources of the Legal Resources Centre which the state tried to do. Knowing that the LRC depended on donations to support its activities, the Government also targeted the donors of the LRC as an effort to persuade them to withdraw support.
 One of the strategies was to enlist the help of the director for fund raising. The latter would be asked to investigate the activities of and prosecute the LRC, the aim being to discredit it in the eyes of the donors.
 In the secret document that I've already referred to, it says that the Ministry had already got in touch with the Directorate for fund raising, who was sympathetic to the feelings of the Government about the Legal Resources Centre.
 The allegation was made that some of the activities of the LRC were in conflict with the aims of the Legal Resources Trust as stated in the authority given to the trust by the director of fund raising to collect donations.
 For example, in the eyes of the Government the LRC was only permitted to give legal assistance only to poor and deserving individuals and not to organisations representing the poor.
 Insofar as the Legal Resources Centre then represented trade unions and other organisations that were under repression, this was then being used by the state to try and influence the director of fund-raising to withdraw the authority to deliver resources trust that it had to collect public donations. Fortunately this did not succeed. 
 The state also wanted to use any case in which the Legal Resources centre had rendered advice to civil society organisations to block future funding. In 1989 the Government passed the Disclosure of Foreign Funding Act of 1989. The aim was to compel certain organisations and persons who received money from sources abroad to make full disclosures among others as to the source and purpose for which the moneys were to be used.
 Around September 1989 the LRC was informed by Wilfred Scuff of the Criminology Institute at the University of Cape Town that he had been asked to investigate the implications of the Act for various organisations. In the course of his investigations he had discussions with the personnel at the Canadian Embassy. These people had informed him that they'd approached the South African Government to find out exactly why this Act had been passed and whose finding it was that the South African Government intended to limit or to cut.
 The reply that they received from the Government indicated that in particular three organisations were causing the Government concern and the Government intended to bring them under control, and those were the KAGISO Trust, the South African Council of Churches and the Legal Resources Centre.
 Maybe I should move to the last example. That was targeting individuals and people, staff members and people who were associated with the Legal Resources Centre in order to inspire fear in them so that they would not carry on with working for the Legal Resources Centre.
 Many people didn't join the Legal Resources Centre, because of fear that they would be targeted; that they would be on the wrong side of the then existing law.
 Prominent lawyers associated with the LRC were identified as troublemakers by the Government. In June 1986 a list of names of what was referred to as politically sensitive persons, was discussed by the state security council. 
 Among them are the names of the following staff members and trustees of the Legal Resources Centre or former trustees of the Legal Resources Centre. The list classifies names into categories according to the type or combination or type of combination of types of actions taken against these persons.
 The first one, Arthur Chaskalson intensive investigation. Richard Lyster, intensive investigation. Karel Tipp, intensive investigation. Fikile Bam had a distinction of being referred to Stratcom. Jeff Budlander, continued investigation and intensive investigation. Sydney Kentridge, intensive investigation. Chris Nicholson, Steve Kahanovits, Charles Nupen, continued investigation.
 Now, the aim of listing people like this of course was to discredit them in the eyes of the gullible public in South Africa which believed the Government in what it was saying, and in doing so it would demoralise the people concerned, but also it would limit the effectiveness of the Legal Resources Centre.
 The majority of White farmers were either sympathisers or agents of the state security establishment. Some of them were used to intimidate members of the Legal Resources Centre. I must say that a lot of human rights violations were perpetrated by White farmers. They had a privileged status in South Africa. They had the right to kill. They assaulted, they brutalised the people that worked on their farms and they did not take kindly to any questioning of those activities.
 In the late 1980's and early 1990's the LRC did concentrated work in Wakkerstroom, Piet Retief and other areas in the Eastern Transvaal. The LRC initially became involved in those areas to assist communities fighting forced removals which were keyed to the fine tuning of the geographical apartheid as well as the establishment of the homeland government system. 
 In addition to representing clients the LRC conducted monthly legal clinics especially in Driefontein, advising members of the community of their rights and empowering them to use the law to protect their rights.
 You'll understand also that in the course of this the LRC took a number of case in which it sued the Government for police brutality in the area, but also there were a number of cases that were taken against farmers in the area who had brutalised people, who had used the illegal Squatting Act in order to evict people who had been on these farms for years and years and they were being evicted, partly in collaboration with the Government.
 A rumour was spread among the people and among the White farmers saying that the LRC lawyers were lawyers for the African National Congress. The aim was to discredit those lawyers in the eyes of the community. One should remember that at that time, Inkatha was still the most popular party in the area and in the Eastern Transvaal of course to be seen as an ANC person was to be seen as being against the people.
 In October 1990 we received a report that a meeting of farmers at the Allespruit Farmers Hall which had been addressed by an Inkatha chief, that a particular farmer at that meeting had called upon Inkatha to kill certain people which were referred to as "coolies" and other persons were organising for the African National Congress and whom were said to have been brought from Johannesburg. This was a reference to the lawyers of the Legal Resources Centre. It was a threat to the lives of the LRC personnel working in the area and a threat to those persons with whom we worked, some of whom are Asian and some of whom who happen to be supporters of the ANC.
 This matter was taken very seriously, because we felt that it posed a direct threat to the people working in the Legal Resources Centre. It was then taken up with the Commissioner of Police and as usual nothing happened after that.
 In April 1987 the Pretoria office received an instruction from a hotel owner from KwaNdebele, a Mr Shabangu, to assist him in investigating an alleged disappearance of his son who had been in police custody and who was reported to have escaped.
 An attorney of the Legal Resources Centre, Mr Nick de Villiers and another employee visited Mr Shabangu. When they went to KwaNdebele to consult with him and to investigate the matter, Mr De Villiers was detained under the emergency regulations for not having acquired the required permit to enter KwaNdebele.
 It is strange that he was detained for that even though it had nothing to do with security. He had applied for the permit before going to KwaNdebele, but the Commissioner of Police of KwaNdebele had dilly-dallied until he had decided to go there and make a personal application. Upon arrival he was detained for not being in possession of the permit. He had other matters in KwaNdebele on which he was appearing on behalf of other clients. The KwaNdebele Police made it impossible for him to obtain the required permit to enter KwaNdebele for purposes of representing his clients.
 When he returned to KwaNdebele at a later stage, again he was promptly arrested and detained under security legislation and was not allowed to represent his clients. His detention was urgently challenged in court. Soon after the start of the court hearing, however, the state considered that there were no grounds for detaining him and agreed to release him.
 There are many other incidents of harassment and intimidation involving both staff and trustees of the LRC, which are more important, because they were life threatening to individuals endangering lives.
 Whilst some individuals in the organisations were detained, lives were threatened, tyres slashed and bricks and stones smashed through windows. As stated earlier, this form of harassment did not only occur to staff and members of the LRC as it also happened to many people outside and in fact as I said, worse happened to people outside.
 As a result of some - as a result some of the staff members of the LRC who suffered this harassment prefer not to be named or individualised. Their argument is that their suffering is much less than the suffering that many South Africans have endured in the hands of the former South African state and its security machinery and they prefer therefore to just to mention to the Commission that some of these things did take place.
 Lessons that we're learning from all this is that; number one, never again should South Africa have a constitutional system that gives unbridled power to any Government or Government agent or Government body. I think that for the future the present constitution does a lot to take care of that. 
 Secondly, the lesson that we're getting from this is that it is important to develop constitutional democracy in South Africa in such a way that our ordinary members of the public are aware of its rights, of its enforceability and they're aware that it is the Supreme Law and can use it in order to challenge abuses in the future.
 I think it is important to develop a vibrant society in South Africa. Looking back, I think that part of the problem was exacerbated by the fact that the South African society, especially the White South African society was the most gullible that I've ever come across in this world. They were prepared to believe whatever the police was saying. They were never prepared to check. This transcended, I don't want to talk about judges, but this even went as far as White judges. Many a time accused people who were accused of security crimes appeared before judges and said we've been assaulted and many, many times this happened and it never occurred to judges that these people might be telling the truth. All the time the confessions were accepted, the accused were seen to be lying, changing their minds. I find this to be extraordinary gullibility on the part of the White members of our society, if not naivete - I don't know.
 But I think that it is necessary that we should teach our society to think independently, so that when people come to it and say this is the position they can go and check and use their own minds to decide whether it is like that.
 Thirdly, of course it is necessary that we should maintain the existence or encourage the existence of NGO's, because without them I think that the momentum to create a democratic society is going to be lost. Government is too busy doing its own things. It's too busy governing and sometimes it is not having the time to create the ideal democratic situation that we need in the future. It is therefore necessary that we have and we encourage human rights organisations and other NGO's that will keep Government in check all the time.
 Thank you very much.