Special Hearings — Legal Hearings — 1997-10-27

AG: Madam Chair, no particular or specific decision was influenced from the time I was an Attorney General, that is from 1st April 1986 up to the present. But we did have policy input when it came for example to the question of prosecutions against member of the ANC and prosecutions under the Group Areas Act. The Minister would call, and did call his Attorneys General together and he would say for example, in the case of the former, the Government is entering a "represment", with the ANC is there way of your not prosecuting. Now I am sure the present company wouldn't find much principal trouble with that, (that's just a joke). but it's a serious joke. What we would say to them as lawyers, Minister, that is impossible. If a case comes before us that is prosecutable and we have no good reason, we must proceed on that case. Let's say a case of murder, I'm not talking about a statutory offence which are easier to deal with. The result was, the Government then was in a position, and we recommended specifically my colleague, Rossouw and I, to Minister Coetzee if you want to tie our hands you must pass an indemnity act, because we must apply the law, and that is how the indemnity acts came on the book, to enable the Government to continue negotiations. Yes, so in that sense he would say, we the Government are thinking this way. That would automatically influence our choice that we can see for example an act like the Group Areas Act is for example, going at last. What is the use of applying it? An Act which is unfair but which had to be applied because we're AG's, so we had a reason to place a moratorium on prosecutions. In that sense yes, the Minister has directed me, but in general, not specifically. I cannot speak for my colleagues.

AG: I think by an large Madam Chair, that was also my experience. Perhaps I musn't say more. All I can say, the opposite also happened. I remember sitting in the train and going home one afternoon, reading the Argus, and seeing that the then President, PW Botha, said in answer to a question by Mrs Suzman, that Influx Control would come to an end in three months time. Well, there were hundreds of people in court the next day for all kinds of offenses on the Influx Control, and I phoned my head office early the next morning, and said what do I do with these people, I am not going to prosecute, I can't possibly prosecute with conscience, and for an offence that's artificial in the first instance and that's going to disappear in three months. So we arranged to postpone all those cases, and eventually that became known, and it was handled in that way.

AG: Can I just take a point there. I only became an Attorney General, after the passage of the new Act, the current Act, but there was one occasion in which I was managing the office, I wasn't formally appointed as an acting Attorney General, but the AG was in court, and the Minister's office phoned and he wanted us to take a particular course of action, it was somebody who'd made revelations which later turned out to be prove false about hit squads, and he wanted us to have this person for his own safety put inside in terms of Section 185 for detention of witnesses, and I wasn't prepared to do it, because there was no basis for a prosecution, so how could we have a witness.
 Anyway, I spoke to the Minister, and he backed off, he didn't insist in trying to give a direction. He accepted that that was my view and that was it, and he found another way out of his particular problem.

MR NEL: Mr Vally I normally didn't speak to the Minister of Justice in the Transkei, I normally spoke to the Head of the State, and I have mentioned one example in my submission at the very first page, about executive prerogative which I think is something that the TRC should be possibly looking at what happened in Pondoland in 1984, that was before my time, but I've not seen anybody come forward to make submissions about those events, where the Transkeian Defence Force went in and cleaned out the populace there to, or certain sections there, but that was before my time in Transkei. I think Government means control, and there would always be some if not a ghost, a subtle form of influence brought to bear upon your decision. I found that with all the governments in which I've been involved with in Transkei, but thankfully they have accepted your decision at the end of the day. They might say to you, how about charging this old man, one of the Prime Ministers said to me there, referring to KD Matanzima, I said well there is no evidence, and that was accepted. So, Holomisa accepted when I didn't charge Duli for fraud. So there will be the attempt to influence you, but they have a stake in control, and you must expect that and you must be man enough to resist if the evidence is not there and this is were impartiality comes in.

MR VALLY: : Madam Chair, I'm going to the next question, but I just want to comment on the answer to this question, which is that we want an exposure of the past, we want to hang the dirty linen out, so we can make sure that it's washed for the new Government and I think the answer has been inadequate. We hear there has been some influence, for the example been given to us is when we wanted to scrap the Pass laws; when we wanted to get rid of the Group Areas Act. I'm afraid those are not gross violations of human rights. I wanted to know about when you were influenced, in terms of perversion of justice and I think you should think about that, when I ask you the next question.

AG: : Madam Chair, I said we were never given, I was never given ...(inaudible) instructions. ....(intervention)

MS: SOOKA: I think the question was answered, Hanif.

MR VALLY: : Let me go on. You people had certain powers in terms of which, by issuing of certificates, you could get bail refused. The Courts could not test whether a person should get bail or not. Similarly you had powers in terms of which State witnesses could be detained, almost at your pleasure, again which could not be tested before the courts. The question we want to ask you and which the Bar Council asked as well is; why didn't you complain about this obvious violation of the rule of law?. Or if you felt that you could not complain because of the nature of your job, why did you not ignore this kind of abuse of power that was handed over to you?

AG: Madam Chair, I think one mustn't in this room, where we are all together divorce ourselves from the situation as it obtained in those years. We were, let me deal with the refusal of bail. The usual case was that a policeman would arrive in your office and make this application, on the basis that he had certain informers in place and he couldn't go to Court without exposing the informers and jeopardising the whole operation of getting information. Don't forget, we were in those days busy with a revolution. It's a revolution that we had on our hands. There were questions, the word treason was bandied about quite often. So there were all kinds of influences and factors and perspectives and points of view that now with hind sight one wants to do away with, if you can, but on the other hand they were there, they were real, and you try to steer a course between them, trying your best to do that.

YASMINE SOOKA: : May I follow that up with a question. Would it be true to say, that you shared the prevailing mindset then of most white people at that time, that you were in a sense fighting the enemy, and would that attitude have in fact persuaded you, influenced you to proceed against these "so called terrorist" with even more zeal?