Special Hearings — Legal Hearings — 1997-10-27

UNKNOWN: ....noting that he had decided to suspend his appointment as Prosecutor with immediate effect. However, it appears after several days that the Attorney General and members of the unit and Board met and resolved some of their differences.
 At about the same time, in August 1995, seventy members of the legal profession met in Durban to discuss what they perceived as a crisis within the criminal justice system, in the context of the serious Socio-Political conflict and violence prevailing in the Province. In their discussions they focused particularly on what they saw as the failure of the Office of the Attorney General to make an impact on the situation. They expressed the opinion that the Attorney General, himself, had exhibited a reluctance to vigorously investigate and prosecute those currently and formerly involved in the commission of serious political offences. Those at the meeting acknowledged the severe problems arising from the poor quality of police investigations, compounded especially in the case of the KwaZulu police by a biased approach to law enforcement and crime investigation. 
 However, they felt there were additional factors at work which we contributing to "the growing loss of confidence in the Office of the Attorney General and the ability of the incumbent to carry out his duties effectively and impartially". And here they were alluding to the incumbent's involvement in a previous investigation in 1989 and 1990 into inquiries into alleged police death squad activities.
 There proceeded in September 1995 Parliamentary hearings into the Offices of the Attorneys General, and the Attorney General for KwaZulu Natal was one among others who gave evidence.
He was questioned extensively on decisions which his office had taken in a number of cases concerned with political violence or police abuses. It was a tense and in the end inconclusive exchange which demonstrated as much as anything the difficulty for a Parliamentary Committee in a short hearing to determine whether or not there is evidence of a pattern of improper decision making. 
 A little over a month later, the Attorney General proceeded to indict senior Military Police and political figures on conspiracy charges and murder charges in relation to the KwaMakuta massacre of 1987. As is well known the conclusion of the trial in October 1996, resulted in the acquittal of all of the accused, and the comments made by the presiding judge,in his ruling regarding the conduct of the Prosecution reopened the public controversy around the role of the Attorney General's office. 
 Shortly thereafter, the Attorney General proceeded to decline to prosecuting a number of cases investigated by the Investigation Task Unit. The public controversy that ensued including involving the Minister of Justice raised in Amnesty International's mind, the importance of providing, finding out what solutions existed to resolve these kinds of conflicts to restore confidence in the effectiveness and impartiality of the criminal justice system, although I have to note that we were not in a position at that stage to assess fully the merits of the allegations made, involved in this controversy. 
 We proceeded with an inquiry earlier this year in KwaZulu Natal and among nbational level authorities and drew a number of conclusions from that inquiry, and I could mention in answer to any questions the range of organisations and individuals that were met with. 
 Some of the broad conclusions that were put to us applied to South Africa in general as well as to KwaZulu Natal. They included conclusions that the criminal justice system were in crisis because of various factors including low morale, poor skills and under resourcing as well as fragmentation of the prosecution service with experienced people tending to leave for private practice; the lack both of the publicly accountable accountability of the prosecution service and the availability of effective remedies when controversies arose; the inadequate resources, low level of skills, capacity and will in the police service which is responsible for investigating crime, compounded by the history of the political use of the police, under resourcing of policing in black residential areas and police reliance upon informants and extracted confessions; a lack of a strategic approach for the most part in the handling of crimes identified as national priorities, the further damage to the system caused by this lack of public confidence in it and consequent reluctance for example, to cooperate as witnesses or in other ways with investigation processes; the impact of political processes involving amnesty for perpetrators of political crimes. 
 Some solutions proposed already and already explored which were put to us and which appeared sensible to us included, re-thinking the traditional division of labour between the police and the prosecution service. Such a team approach involving cooperation at an earlier stage between police investigators and member of the Attorney General staff could assist in raising the quality of evidence gathered in preparation for a trial, particularly in a case involving complexities or matters of particular national concern. 
 Early close coordination could help preserve the chain of evidence, ensure proper legal guidance and a proper handling of witnesses in taking statements.
 Secondly setting priorities encouraging the development of specialised skills in relation to priority crimes; sharing of information across cases so that linkages and patterns could emerge particularly where crimes crossed provincial boundaries requiring a national level solutions and investigation approaches. And I should mention in this regard tht it was frequently cited, the work of the current Attorney General in the Pretoria Office relating to the investigation of Third Force trial matters.
 Thirdly, the ad hoc appointments of members of the private Bar as prosecutors in special cases such cases could include those where the accused persons hold positions of public responsibility and have a capacity to influence the investigations or prosecution proceedings. The special or independent prosecutors could be used in these cases, involving political or other sensitivities to help protect the independence of the decision-making process and the conduct of proceedings from real or perceived political or other improper influence. Thought will have to be given to where authority for these ad hoc appointments should be located, and the criteria used for appointments to avoid politicisation.
 Fourthly, raising the level of skills and professionalism amongst the police investigators.
 Fifthly, ensuring an effective balance in the proposed National Prosecuting Authority legislation between independence from political interference and accountability to the political process for the investigation and prosecution of crime. 
 All of the above considerations seem particularly important for KwaZulu Natal, where the politicisation of the police has been very marked, compounding the already considerable problems creating by their underlying lack of investigation skills and shortage of resources. These circumstances make close and early involvement by members of the Attorney Generals staff in the investigation process particularly necessary. However, Amnesty International concluded from it's enquiries that this approach was not encouraged nor were guidelines issued to our knowledge encouraging members of the Attorney General's staff to look for patterns within and between cases and to develop prosecution strategies in the handling of political violence cases accordingly. 
 In our view the conflict which developed between the Attorney General and the Investigation Task Unit and Board seems partly to have arisen through differences in approaches to the investigation of prosecution of crime. By it's very nature the Investigation Task Unit broke down the traditional divisions of labour by providing police investigators with legal supervision and advice on an on-going basis.
 Furthermore the unit following on the work of previous enquiries attempted to identify the networks and enabling mechanisms which they believed were authorising and facilitating the activities of individual killers, with a view to the eventual prosecution of these high level actors. The conflict in approaches emerged starkly in a number of cases, and I'll mention just one other than the Malan case. In one such case, in the State versus Romeo Mbambo, Brian Gino Mhkize and Israel Bongwane, the Attorney General had authorised prosecution of the accused on six counts of murder after refusing a request from investigators then attached to the Goldstone Commission to delay the prosecution to allow for further investigation into allegations made by the accused that they had acted on high orders. The three accused were part of a group of men who'd been trained secretly by the then South African Defence Force in the Caprivi, and later incorporated into the KwaZulu police ....(recording ends)