Issued by: Truth and Reconciliation Commission
FROM: TRUTH AND RECONCILIATION COMMISION
WESTERN AND NORTHERN CAPE OFFICE
CAPE TOWN, 14-6-96
I have taken note of the press release dated 11 June 1996 issued by the Attorney-General of the Northern Cape in regard to the evidence of a witness, Mr Walter Smiles, at the recent sittings of the Human Rights Violations Committee in Kimberley..
I do not wish to enter into a media debate regarding the merits of evidence presented to the Commission or matters I have handled in the past in my professional capacity. That is highly improper. I merely wish to point out that the Attorney-General's version relating to the criminal trial of D. Nkohla & Another contains various factual inaccuracies.
I must however express my astonishment at the attack launched against me by the Attorney-General and his view that I acted highly improperly in forming part of the panel which conducted the sittings in Kimberley. This view clearly results from a defective understand- ing of the process of the Truth and Reconciliation Commission and a misreading of the applicable provisions of the Promotion of National Unity and Reconciliation Act, 34 of 1995.
The panel which received evidence during the Kimberley sittings is a sub-committee of the Human Rights Violations Committee which acted in terms of Section 14(1)(a)(ii) of Act 34 of 1995. Its sole function was to gather information and receive evidence concerning victims of gross human rights violations. It is not called upon to make any findings. Moreover, this fact was made abundantly clear during his opening remarks on the first day of the sitting, by the Chairperson of the Commission who presided on the first day.
Any matter coming before the Human Rights Violations Committee, whether dealt with at a public hearing or not, is subjected to investigation and all the relevant facts are established and information collected. Thereafter a finding is made by the full Committee as to whether a gross human rights violation has been committed and who the victim is. In the case in question, that of Mrs Mokone, the sole question is whether the death of her son in the hand grenade attack amounts to a gross human rights violation. This is the question which the full Committee must eventually decide upon. The Committee does not decide any issues relating to the perpetrators or the two persons previously convicted for the incident.
It is therefore clear that the criticism of the Attorney-General is devoid of any merit and that no weight can accordingly be attached to his views that I acted improperly or as "the judge in my own case". It is simply ludicrous. Besides, the fact that a legal representative acts in a particular matter, does not mean that the matter becomes the legal representative's "own case". The legal representative acts on the instructions of his client. The Attorney- General ought to know this. There is accordingly no need, for example, for the Attorney-General to defend his own decision to proceed with the prosecution against the two persons who were eventually convicted, in the light of the evidence presented to the Truth Commission. Such a decision is taken in a professional and not a personal capacity.
I regard the attitude of the Attorney-General in negatively com- menting on the evidence of Mr Smiles in the media as extremely un- fortunate, particularly in view of the fact that such evidence was never tested in a Court. He significantly chose to deal with the matter in a media release without raising the matter with the Com- mission. This is moreover against the spirit of recent discussions which took place between the Truth Commission and all Attorneys- General. The alleged "full police investigation" or the evidence of a "marshall" which he seemingly relies upon does not justify such attitude. The "marshall" incidentally also testified at the Truth Commission sitting and alleged that the police coerced him into testifying at the criminal trial and that he never saw who threw the hand grenade. The Attorney-General significantly failed to deal with this evidence in his media release.
I may add that the Attorney-General's attempt to ascribe the evidence given by Mr Smiles to intimidation, is patently baseless, speculative and would fail to impress any reasonable person.
One hopes that the Attorney-General shares the concern of the Commission to establish the truth and would adopt a much more constructive attitude in regard to the numerous cases of human rights violations heard at the Kimberley hearings, than to target the evidence of one witness for public criticism and one of the Commissioners for personal attack.
Enquiries Christelle Terreblanche - 082-4588461