Special Hearings — Legal Hearings — 1997-10-27

MR ROBERTS: Thank you Madam Chair. May I say that on my own behalf that I acknowledge that an unjust system maintained itself in power by means of unjust laws and that from time to time I applied those laws and thereby contributed in some measure to the maintenance of that regime, and that is something that I regret.  Throughout my career if I can quote from my written submission, I have held the view that a prosecutor, who lands in this type of dilemma situation has the duty of applying the laws of the day, whatever his or her personal feelings about the desirability of those particular laws may be. I still adhere to that view. If a prosecutor is not prepared to apply the laws of the country, he or she should resign. This is not to say that a prosecutor should agree with the laws that he or she ss applying and I submit that any other approach would lead to chaos as each incumbent would then be seeking to apply an individual value system possibly at odds with the values of other members of society, and today I might add with the full benefit of hindsight and after much reflection I still cannot answer in my own mind the question whether I ought to have resigned at some stage and if so what that stage might have been.  If I can just take up a point of two that had been raised in previous questioning of my colleague, Mr McNally, one of the points was raised by Advocate Denzel Potgieter, about why the Attorneys General sent the wrong signals by opposing the idea of a National Director of Public Prosecutions.
 I want to point out unequivocally that what happened was, we went into it, we decided we did not like the idea of this particular system and we applied our minds to the issue and gave our bona fide opinions on how we saw the law to be, and I think that is our duty, and if it is expected of us that we have to fit in with what the political masters wish when we make recommendations, that is extremely dangerous. I see one of the safeguards of the system that we can speak out if we do not agree with something.
 We have given views for example on the recent issue raised by Dr Mary Rayner of the tightening of the bail laws and mandatory sentences and things. We've made our inputs there, I don't know if our inputs were liked, particularly by the Government, but we feel we've got a duty to make those inputs. And what's more, that duty is imposed in fact on all public servants now by the recently introduced code of conduct which says that when you're asked for your opinion, you'll give an honest opinion as to which course of action should be followed whether it is popular or unpopular, and I still think that is the only way one has to go. 
Obviously if you're overruled then you've got to loyally go along with that which has been accepted, that is what we have done, and I see no particular problem to that particular issue. 
 Then the other question that arose during Dr Mary Rayners evidence, I think it was hers, relates to all these cases of unsolved deaths and how many people died in detention, what did we believe of it. Speaking for myself, I had very serious suspicions in perhaps most of those cases, but that's not the test. We regularly are confronted with this situation. We believe a certain thing happened, we believe somebody is guilty of a crime, but we've got to stop a prosecution rather not introduce a prosecution just because there is no evidence. So our own private feelings about the rights and the wrongs of the thing just give us something to work with, but they're not enough to go to Court with and this is a regular problem. So the fact that we decline to prosecute a policeman for example who is accuse of a crime doesn't mean we agree with that policeman's version. It may be we agree with the version, more likely it's a question of we've got this evidence, we've got one witness here and he's not very good, and on the other hand, we've got this and that we're never going to succeed. We have to put our particular feelings, our own feelings second in that particular situation. We've got to take the objective decision, have we got a reasonable prospect of successful prosecution. Thank you.

YASMINE SOOKA: : Thank you. Mr Nel.

MR NEL: Chairlady, I served exclusively under black governments in a managerial position, seven years under that pre 1994 regimes of Transkei, which almost six and a half years was under the military junta of General Holomisa. Which is a sui generis situation indeed.
 My perception at the time was the Transkei was in a sense a crucible where reactionary and progressive forces were active and my office was at the interface of the impetus from both sides. So, I had to be objective, and I believe that the principle of egalitarianism of impartiality had to be observed strictly in the Transkei, so much so that I was paid the rather ironic compliment by a very prominent Transkeian businessman on the street, this is a person who has to come back and serve about ten years for fraud, he hasn't been apprehended since 1994, that I was by my decisions keeping the Holomisa regime in the cushions of power, which was a complete ...(inaudible) in reverse to the situation that my learned colleagues had in the Republic of South Africa. 
 What I'm saying is I was given the opportunity of being objective and which we tried to adhere to in a different political regime and a different political system, where you could afford to be objective between the powers on the right and the powers on the left-hand side of this spectrum so to speak.
 What I'm saying is that there will always be perceptions, whether this comes from the right-hand side of this or from the other side. I think the idea is that people must see that you're objective, you must be accessible to them in your administration of your office. I agree with my learned colleague, Dr D'Oliveira, that we want a clean police. Speaking from our own office, we are 80% black, there's a lack of experience, but we are getting there. There's no lack of brains. 
 I've quoted a number of examples of cases which I thought Mr Dumisa Ntsebeza were he here today, would have been particular interested in, because he represented those people. Certain deaths where prosecutions did not ensue, certain prosecutions which fell by the way, we had to endure political reality where people could jump the border, go across to the old RSA and such was the situation that we could, well to ask for extradition was just a non-starter, because these people were being harboured in South Africa, and they were being armed from the security side in South Africa. So we laboured under that disadvantage in some of these cases. I've set them out in quite fair detail, quite a lengthy detail. If there are any questions, I'd be happy to answer them.

YASMINE SOOKA: : Thank you. Hanif.

MR VALLY: : Thank you. Gentlemen, some of you have made a handsome apology and we thank you for that. There's still some questions we need to ask. We need clarity on the period. I have already raised with Mr McNally that the Minister of Justice could substitute or give you instructions in terms of what the law was up to the passing of the Attorney General Act of 1992, without even disclosing this fact to the public. Now Mr McNally has indicated that there were times when the Minister of Justice indicated his preferences, I think that's how he put it and maybe he can elaborate, if necessary. What I need to know is, did the Minister of Justice influence any of your decisions up to the passing of the Attorneys General Act of 1992, and if so what were they?