Special Hearings — Legal Hearings — 1997-10-27

MR VALLY: : I think the last gentleman must not confuse black governments with democracy. I think you are mistaking the so-called surrogate Bantustans with a democratic State, and I think its very different, simply because they were the same colour doesn't mean they were democrats.
 Let's just go on, and I am now under severe time pressure, but I want to still make this point. The point is this - that you as Attorneys General freely used confessions, obtained from people who were detained in terms of Section 6 and thereafter Section 29 of the Internal Security Act, and we know now that it was a matter of common practice for detainees who were kept in complete isolation, no access to their family, no access to their legal advisors - indefinite detention for purposes of interrogation. This was the law. You freely used it. Where were your voices then? You were appointed to serve a certain function. 
 Now I'm not saying that it wasn't influenced by the times; I'm not saying that that was the culture at the time, and I'm not saying that at this point you're not doing a good job. But with that background, with your voice not being heard at all regarding those detentions, here we find an Act which now, as apartheid appointees, entrenches you in place until you retire at age 65, surely a democratic society questions that? And therefore there is a need for this accountability and the creation of a National Prosecuting Director. 
 So there's two questions here; why didn't you raise your voice regarding Section 6 and Section 29 detentions? And why did you use the confessions obtained in those circumstances? 
 Secondly; the perception that as apartheid appointees, that the last government wanted to entrench you in your posts before democracy stepped in. Those are the questions.

MR D'OLIVEIRA: Madam Chair, the first question. I have never used a Section 6 or a Section 29 statement, because we applied the common law, we have to prove beyond reasonable doubt the admissibility of a statement. We were helped by the Criminal Procedure Act in another way in that if the statement was before a Magistrate, there was an onus in which the accused then could say that the statement was not voluntary made. But Section 6 and 29 were non - court matters. They were in fact, and the Act makes it very clear, not the responsibility of the Attorneys General. It was a police power. The police locked people up. We never locked people up under Section 29. That's the first point. That's the fact, and personally, you show me a case in which I used Section 6 and Section 29?
 Secondly the entrenchment. Before the 1992 Act we were ordinary public servants and we had tenure till 65. It was there already. Our rights were there already. Whether the democracy now sees that as being entrenched by the apartheid government, that's the entitlement of democracy. People are entitled to look at it that way. But the facts are, is I speaking for myself as a public servant had the right of tenure provided that I didn't misbehave. Now the new legislation says to me I must go, democracy wants me to go, alright, that's the democracy's will. But really, I can't bring the two together.

YASMINE SOOKA: : Mr D'Oliveira, I think that perhaps from the side of the Panel what we would like to have answered, because this is a criticism that has come forward. The Attorneys General did in fact rely on confessions extracted under those circumstances, and used that to prosecute. You perhaps may feel that you've not, but I mean that is the perception out there, and in fact it has been borne out by cases that have come before the courts.
 Now, the question I would like to ask, and Mr. McNally grappled with it in his submission, about the fact that he'd taken this oath, and that he had to ask questions about whether in fact the function he was performing did in fact secure justice. At anytime, in any of your careers, did any of you sit with this moral question about whether in fact you should have been there, if the laws that you were in fact using and exercising did in fact support this iniquitous system? Because, how on earth can one explain why gross human rights violations took place in our country during this time?

MR D'OLIVEIRA: Yes, Madam Chair, I will endeavor to answer. First of all , when you ask me as prosecutor, I'll speak individually, I'd say as follows: What is affecting our people most, and has affected, is the legislation, the apartheid legislation, the security legislation which affected the people. One thinks, or is under the impression, and it's perhaps where we can help the public with that perception, that we sat all day doing nothing else but security and apartheid cases. That is a wrong perception. For 97% of the time, one works on criminal crimes, whether it is appeals, motions, decisions, you name it, on normal common law crime. The 3% of the time if you do deal with some facet of security legislation, whether a trial, whether an appeal or whatever . You asked it - yes, it was an uncomfortable thing working with that, that is a fact, but as a prosecutor, I had a duty to apply my mind as I have endeavoured to set out, according to the criteria, according to the rules of the common law, and the acceptability in terms of interpretation of the legislation, not morally. I had to apply it. Yes it was uncomfortable, it was wrong. That's the one aspect.
 Number two, the aspect of the confession. Which confessions is one referring to? Is one referring to the robber who robbed the bank and confessed, and he says the confession was forced, or are you referring again to those cases known as security cases where that particular person confessed that he did something in terms of his organisation. I am not sure. 
 If you're referring to confessions in general it'll be easier to handle. We have to prove one doesn't realise what a job it is to get a confession in. If we know, or if a prosecutor knows that the confession has been extracted then you will not use it, you will not prosecute if that's the only evidence in your case. I know colleagues of mine, I can think specifically of a name in a security related matter where he was lied to by the Security Police, and he saw that the confession had been extracted - he closed his case immediately. That was our duty, when we knew. 
 Normally the matter of compulsion was raised in court, and we were dependent on our witnesses to rebut that. If it was rebutted, fine, beyond a reasonable doubt, fine. If not, then we lost a confession, but if we got to know that the confession was extracted unlawfully we were not allowed to prosecute, or not allowed to rely on it. That's been my thing all the way. My approach.

YASMINE SOOKA: : Thank you.

MR NEL: Can I take up a bit on it. Chairlady, upon a subjective plane one is filled with a sense of unease at least, but applying the law, in my submission to your good self I referred to the case of Mr Mzuso Matiwane, a gentleman I think served imprisonment for having lied to your TRC here, I think early last year, or early this year, I can't remember. Now he was the one suspect, person suspected of having killed the North Crest Five, so to speak, a still unresolved case, and the police brought a docket to me, with basically sole reliance placed upon a Section 47 statement, or statement extracted after security detention and I refused to prosecute on the basis of that being the sole evidence. So I can echo what my learned colleague has just said here.

YASMINE SOOKA: : Thank you. Mary.