Special Hearings — Legal Hearings — 1997-10-27

MS NORTON: Thank you Chairperson.
 In this part of our submission we are going to look at the role of lawyers in respect of legislative and executive action taken to suppress political resistance.
 During the decades of National Party rule the executive authorities acquired increasingly broad statutory powers to restrain opponents of the government. While there can be no doubt that the primary responsibility for South Africa's repressive so-called security laws lies with Parliament there were very significant ways in which lawyers facilitated these statutory developments.
 Judges on occasions contributed substantially to legislative measures by their recommendations which they made as members of Commissions of Inquiry. 
 The 1982 Internal Security Act which sanctioned and consolidated existing security measures was the product of a commission headed by Appeal Court Judge Rabie. The government focused heavily on the judges role in its efforts to legitimise the legislation. The Minister of Law and Order described the Bill as a culmination of a thorough investigation by an independent Commission of Inquiry which emphasised the necessity for the measures contained in this Bill.
 Mr Justice Snyman, who chaired the Commission of Inquiry into the events of the Paarl uprising in November 1962 went far beyond his terms of reference to recommend a range of special procedural provisions to deal with the PAC. His recommendations, which are detailed in our written submission, show the judge in the role of an enthusiastic partner to government in conceiving and crafting security legislation which deviated from common law.
 The response of lawyers and legal academics to these legislative developments was on the whole deplorable. The structures representing the organised legal profession generally failed to condemn or even to criticise the increasing inroads into the rule of law. Professional protest, where it did take place, was made by individual structures of the attorneys and advocates profession. Neither the General Council of the Bar or the Association of Law Society's took any significant united action over the years. When advocates condemned in August 1985 the indemnity and ouster provision in the emergency regulations this was done in the name of several individual bar structures.
 We trust that the Commission will hear from the GCB the rationale behind its decision to engage in protest behind closed doors. In 1970 the Chairperson of the GCB indicated that the organisation had at times made carefully documented and justified protests but without publicity. In the case of the Terrorism Act he said "we put many of our misgivings to the Minister and to other government bodies which may not be mentioned."
 The repeated failure of professional structures to take a unified public position on human rights violations suggests an absence of fundamental values which they were bound to uphold, defend and promote. The general reticence of the legal profession could not but have facilitated the government's objectives. In 1971 the late Barend van Niekerk warned lawyers that by remaining silent at the helm of their clinking cash registers they were not only perpetuating injustices but were also lending them the aura of respectability. This is an exceptional comment, Chairperson, from a legal academic at this time. Although there were notable exceptions legal academics, particularly in the '60s and '70s, generally adopted a complacent and non-critical attitude towards laws which eroded fundamental rights and values.
 Turning to executive action, it is clear that extensive use was made by the security apparatus of the statutory powers provided. In the period that we have been looking at thousands of individuals were subjected to banning orders, tens of thousands ...(tape ends)..and perpetrators of abuses which were carried out in the guise of the legal activity. It is extremely important then to consider what protection or recourse our legal system offered to the victims of these violations.
 The courts, with a few distinctive exceptions, failed to use the power which they had to check the authorities and ameliorate the effects of this repressive legislation. Judges failed to circumscribe the subjective discretion of officials in their decisions to ban, to restrict and to detain individuals. In their own proceedings they took a passive and uncritical approach to statutory intrusions on the normal criminal process.
 Judicial passivity, however, had it's most serious consequence in relation to detainees who were the most vulnerable victims of State actions. The courts imposed very few constraints on officials exercising the power to effect detention. With some well-known exceptions in the middle '80s, empowering provisions were interpreted widely and re-arrest immediately upon release from detection was sanctioned. When the conditions in which detainees were held came under judicial scrutiny the conditions imposed by the authorities were general upheld denying detainees their most fundamental rights. In addition the Courts took a very narrow view of their own power to investigate allegations of abuse in detention. 
 The record of judicial review of executive action is disappointing for decisions consistently favouring the executive. But what is most remarkable in these cases is the absence of any judicial condemnation of the laws in question. Judges have answered criticism of their role by pointing to a powerlessness in the face of repressive laws. Where then is the articulation in their judgments of the constraints under which they were operating and the regret with which they facilitated governmental policy?
 In an area where judges had much greater discretion, namely the assessment of evidence obtained in detention, they missed a significant opportunity to check police abuses. Courts steadily refused to hold that solitary confinement on it's own could affect the voluntariness of a statement and render it inadmissible. In the case of Gwala the Court accepted the evidence of a detainee who had been solitary confinement for over 500 days. The Courts ignored expert scientific evidence of the mental and psychological effects of solitary confinement and their evidential implications.
 Trial judges had a large measure of latitude in assessing the credibility of witness and determining what was reliable evidence. Judges in political trials were exposed to detailed accounts by accused persons and witnesses of abuses suffered in detention. Faced with conflicting versions of what had happened in the secrecy of interrogation facilities judges in their overwhelming majority of cases rejected allegations of police abuses and admitted the evidence in question.  
 Striking once again in all of these cases is the categorical nature of trial judges' assessments of the evidence of the police on the one hand and detainees on the other. We recognise that it may be easy with the benefit of hindsight and the evidence of systematic torture before the TRC to judge the judges' findings but there was compelling extraneous evidences that abuses were taking place.
 As Minister Mac Maharaj pointed out in an article in the weekend newspapers - 
"Deaths in detention were at all times an index of the abuses which were taking place. In 1963, two people died, by 1971 it was 19 and in 1877 Steve Biko became the 46th person to die in detention."
 Judges persistently rejected outright the allegations of detainees before them. It is difficult, given the context, to accept that judges exercised the caution which the law and the circumstances demanded of them in assessing evidence of what had happened in confinement. 
 In the case of the late Linda Magali, already documented before this Commission, Mr Justice F Steyn found a confession to have been freely and voluntarily made despite compelling evidence, two broken front teeth, that the accused had been assaulted in detention. The judge's character assessment was vital to his acceptance of the evidence of the Security police over that of the accused and other witnesses held in detention. He found that Lt. Struwig is physically and mentally a strong, impressive but peaceful person. As a witness he gave an impression of credibility and honesty. In my view it clashes with all reasonable probability that a man in his position and experience in the Special Branches of the Police would make use of physical force to intimidate a witness. In my opinion it is more probable that a group of young educated opponents of the existing order could conspire to testify that they were forced by mistreatment to such confessions.
 The reversal of Judge Steyn's decision on appeal is one of the few cases where the courts found that torture had indeed taken place. The unavoidable evidence of broken teeth undoubtedly made this conclusion inescapable. Detainees whose bruises and lacerations had healed and detainees whose suffering was of a psychological nature had very little success in persuading the courts of their ill-treatment. The late Harry Gwala and his co-accused made consistent allegations of brutal and systematic assault and torture during their trial in 1977. Their allegations were particularly pertinent given the fact that their comrade and co-detainee Joseph Mdluli had died the day after they were all detained.
 Judge Howard categorically rejected all the defendants' allegations of assault and completed accepted the version of the Security Police. He found the various police offices to be mild- mannered, excellent witnesses, patently honest, completely reliable and trustworthy, a thorough gentleman and a gentle giant.
 The defendants on the other hand were hesitant and nervous and therefore untruthful, not a frank or satisfactory witness, a liar, thoroughly discredited and had deliberately fabricated evidence. Harry Gwala, though not obviously untruthful did not make a favourable impression and was simulating when he appeared to be overcome by emotion on describing his treatment in detention. The judge had reservations about whether Harold Ngcana's distress was genuine. 
 From the middle '80's, Chairperson, more and more evidence of abuses was published. In a major study published by the UCT Institute of Criminology in 1985, Don Foster and Diane Sandler found that 83% of detainees interviewed had been subjected to some form of physical abuse. They called for safeguards to be implemented as a matter or urgency and argued that until these were in place, courts of law should disregard all detainee evidence. Few changes however were evident in the courts' approach. The study drew the condemnation of the government and Professor Foster's reliability as an expert witness was challenged in gruelling cross-examination by the State.
 Mr Justice Friedman, of the Cape Provincial Division, is understood to have resigned from the Board of the Institute of Criminology in order not to be associated with the publication of the study.
 Remarkable, once again in cases dealing with torture allegations is the absence of firm statements of the courts' attitude to compulsion of evidence by unlawful methods. Even in finding evidence of barbaric ill-treatment in the Mogali case the Appellate Division failed to reprimand the police offices responsible or to condemn outright the abuse of detention. 
 Visits by magistrates were one of the few statutory mechanisms of protection for detainees. Magistrates were often the only persons outside the Security Branch authorised to visit and report on detainees. There is overwhelming evidence, however, that magistrates failed to provide any significant protection for detainees suffering abuse.
 Brig. Muller of the Johannesburg Security Branch testified at the Aggett inquest that he had never met a magistrate visiting a detainee on the 10th Floor of John Vorster Square during the six years that he was stationed there. Where visits were compulsory, detainees have reported "superficial visits and interviews". A major limitation of this so-called safeguard lay in the magistrate's inability as State officials to inspire the trust of detainees. Indeed magistrates were often perceived to be hostile and as Michael Dingaki has expressed it, a detainee needed two things, guts to report in such an atmosphere and extreme optimism to expect the slightest good to come out of a complaint to a visiting magistrate.
 Another flaw of the magisterial visit was that magistrate's reports, if anything significant was reported, were regarded as internal documents. Detainee Billy Niye, who suffered a perforated eardrum and a damaged eye at the hands of Security police expressed his frustration in a statement to a magistrate who had visited him. 
"I showed you the injury to my eye when you visited me last week, I also told you of the injury to my ear. I requested that you bring this to the attention of a Judge and you said you were not in a position to do so. You said you could only report to the Director of Security Legislation. I find myself in a helpless position in the hands of the police."
 Given the closed system of magisterial visits, Chairperson, it is crucial that this Commission examine magistrates and the reports which they filed to determine how their duty was performed, how often reports of abuses were made and if they were, what action, if any, was taken by the authorities.
 Also relevant is the role of the Supreme Court judges in respect of visits to detainees. Did judges take any steps to assert their right under the Prisons Act to visit any prisoner at any time? The legal system also failed in many ways to provide recourse or redress for victims of official abuse. There are very few examples of police officers being prosecuted for assaults on detainees, where statistics do exist they reveal a shockingly low percentage of prosecutions following detainee allegations of assault by police officers.
 In the Magali case the Appellate Division found that the police officers had severely assaulted Linda Magali to compile a confession and named Sgt Mateo and Lt Struwig as the main perpetrators. The Attorney General failed to prosecute these or any other members of the force implicated in the assault. 
 Attorneys General also failed to prosecute a great proportion of the police officers implicated in the deaths of government opponents. Attorney General Niel Rossouw declined to prosecute any of the nine police officers who fired indiscriminately on Athlone youths in the Trojan Horse tragedy of 1985. His decision was made in the face of an inquest court finding that police officers were responsible for killing of three youths and that there was negligence on their part. 
 The record of Attorneys General raises serious questions about the proper exercise of their duties in a context where their action or inaction had strong implications for the way in which members of the police force used their wide powers. 
 It is, in NADEL's submission imperative that the Commission hear from Attorneys General how they exercised their discretion in these matters. Where the law did take its course the outcome frequently perpetuated a sense of injustice. The police officers found guilty of assaulting Billy Niye and injuring his eye and ear were fined R175 and R50 respectively. In those few instances where members of the Security branch were prosecuted following the deaths of activists, convictions were extremely uncommon.
 The inquest mechanism consistently failed to provide and objective determination of facts. There was little confidence in the capacity of magistrates as State officials to find the truth in cases where State officials were under suspicion. The magistrate conducting the inquest into the death of Alphius Nkabinda at Mpofomeni in 1987 had in his executive capacity issued the permit for the Inkatha Rally that lead to the killings.
 Inquests into the death of government opponents have invariably been cursory, superficial and produced verdicts exonerating suspected of perpetrators. In the procedures they adopted in their neglect of evidence and in the impression of hurried conclusion, magistrates conducting inquests created a strong impression that discovery of the truth was subverted in the interest of protecting police. 
 In conclusion, Chairperson, lawyers' performance in the Security sphere generally suggests not only a failure to protect the victims but a failure to curb the excesses of the authorities. 
 Chairperson, in this section we have referred to the Trojan Horse case in 1985, Mr Brent Williams, an Attorney in Ebrahim & Co. worked very closely on this case and will tell the Commission more about the case.