Lawyers accuse KwaZulu/Natal Attorney General Tim McNally of wilfully avoiding uncovering the truth behind hit squad activities, reports Ann Eveleth
A former security branch policeman eager to open his bag of dirty tricks is likely to go to jail on weapons charges instead; a policeman roams free three months after an inquest implicated him as an accessory to murder; three self-confessed KwaZulu Police (KZP) hit- squad killers await sentencing with no indication they will be made state witnesses.
All over KwaZulu/Natal, the truth about apartheid’s crimes is begging to come out, but justice waits in the wings while Attorney General Tim McNally dithers.
Legal and human rights sources point to McNally’s “abysmal” record of prosecutions. Ironically, the man in charge of the KwaZulu/Natal justice system on the eve of the Truth Commission played a pivotal role in dampening early claims of Third Force activity in the late 1980s.
McNally was responsible for the 1989 McNally report discounting the death-row confessions of Vlakplaas murderer Almond Nofomela and subsequent claims of fellow security branch policemen Dirk Coetzee and David Tshikalanga. Sources say McNally has repeatedly shown he does not believe the apartheid state sponsored police hit squads against the liberation movements.
McNally this week denied the allegation, saying he had “spent a year of my life trying to get to the bottom of hit squads. The whole tone of your article portrays me in a wrong light.”
The commission, jointly chaired by McNally and Lieutenant-General AB Conradie of the police detective branch, used then-Brigadier “Krappies” Engelbrecht as its investigating officer.
Engelbrecht, who left the police with the rank of general this year, was named by Judge Richard Goldstone in his “third force” report early last year and has been linked in recent affidavits to the 1985 murder of Japie Maponya, one of the crimes Nofomela had made allegations about — and which McNally reported on but found to be “false”.
A reading of the McNally report shows the commission made every attempt to point out discrepancies between Nofomela’s admissions and other evidence, while it made little attempt to explain Nofomela’s intimate knowledge of events and facts surrounding unsolved murders.
The following year, McNally served as counsel to the now famously vacuous Harms Commission which rejected similar evidence and again dismissed allegations of police hit squads.
Amnesty International’s 1992 State of Fear report echoed South African legal and human rights groups’ reactions to the judgment, asking how the government could expect McNally to participate in “an impartial investigation into allegations of police death squad activity for the Harms Commission so soon after he had concluded in a previous investigation that such activity did not exist”.
Former Lawyers for Human Rights attorney Brian Currin, who represented Nofomela, Coetzee and families of several Vlakplaas victims, said McNally had “undeniably defended the wickets of the government of the day”.
“The position he took was one of total disbelief toward the allegations of Nofomela and Coetzee. He threw out virtually everything they said, much of which is now being confirmed in the De Kock trial. The fact that information about Third Force activities is coming out today is no sanction to McNally.”
Defending the commissions this week, McNally said he believed the findings had been “borne out by subsequent events” and pointed to the Harms Commission’s exposure of the Civil Co-operation Bureau (CCB) as proof of his vigorous investigation.
While Currin admitted the evidence presented to the McNally Commission “was not wonderful”, he said it should have laid the basis for further investigation: “Certainly, with what is coming out in the De Kock trial, a person with an open mind could have gotten to the truth back then.”
The “truth” still remains largely hidden in KwaZulu/Natal, however, and sources say this is because McNally has not changed his tune, failing to order investigations into Inkatha Freedom Party and KZP officials implicated in Goldstone Commission and Transitional Executive Council reports, and taking decisions which favour protecting the security
While McNally claims he is “dedicated to prosecuting murderers of whatever political persuasion”, the sources say his record shows otherwise.
Former security branch policeman Sergeant Gary Pollack, who spilled the beans on his Third Force activities in Johannesburg and Durban, was convicted last month in the Durban Regional Court on weapons charges. Pollack claimed his superior had ordered him to “infiltrate” two AK-47 rifles into the Pan-Africanist Congress and confessed to a host of other crimes he said his bosses had ordered him to commit. McNally rejected Pollack’s claims, maintaining his motives were purely criminal.
Sources say the comparison between the Pollack decision and McNally’s failure to expedite an investigation into two-time KwaZulu/Natal Midlands cover-up cop Major Joseph van Zyl is revealing. First implicated in a police cover-up of the infamous Trust Feeds massacre, an inquest magistrate ruled three months ago that Van Zyl was prima facie an accessory after the fact to the 1990 Swayimane murders of two UDF activists. McNally has yet to take steps to see Van Zyl removed from his current post investigating police crime in Soweto.
Meanwhile, there are still no indications McNally intends making use of self-confessed Caprivi-trained hit squad killers Romeo Mbambo, Gcina Mkhize and Israel Hlongwane. The three face sentencing in Durban next month, with no indication they will be made state
McNally says they “cannot be accused and state witnesses at the same time,” adding that he will decide whether to bring charges against anyone else after the trial ends.
The sources argue, however, that McNally could have used them to nail the leaders of the hit squad network from the beginning, but failed to do so “despite serious approaches for him not to charge them”, maintaining their motives were purely criminal.
Police reporting officer advocate Neville Melville recalled the prosecution’s early opposition to an adjournment, on grounds that McNally had instructed the prosecutor not to regard the case as “hit-squad
“McNally gave early indications at the time of the Goldstone reports that he felt there were no hit squads. In his view, the statements were not indicative of hit squads, but of people acting on their own,” said
Sources say these are just a few examples of McNally’s “general bias” against Third Force exposure.
One lawyer who, like most, declined to be named for fear of prejudicing his cases in the province, said he could think of “at least 10 cases where ANC clients were prosecuted on flimsy evidence that was overturned in court … and as many others where stronger cases against apartheid allies were not prosecuted”.
Sources say McNally has returned “countless dockets, which seem to have sufficient evidence, without a reason”. Sources say, “due process of law has collapsed in the province and people know they can get away with
McNally rejected the allegations, saying he has “remained true” to his oath to act “without fear, favour, or prejudice”.
While McNally is known to have come under pressure from the IFP in recent months, following the arrest of IFP deputy secretary general Zakhele Khumalo and four Caprivi trainees by the Investigation Task Unit (ITU), reliable sources say McNally granted the arrest warrants under enormous pressure from Safety and Security Minister Sydney Mufamadi and National Police Commissioner General George Fivaz. Mufamadi and Fivaz attended the briefing which led to the ITU’s first arrests two months ago, and the sources say McNally had little choice in the matter.
# A litany of justice obstructed
Ann Eveleth
McNally’s critics point to a succession of other decisions which, they say, cast damning aspersions on his desire to root out political violence:
* One notable instance quoted is the 1993 trial of notorious Caprivi-trained hit squad operative Vela Mchunu, whom McNally unsuccessfully prosecuted under the alias Alfred Masango, for the 1992 execution-style murders of two Hammarsdale taxi owners. “Masango” was acquitted by the court, which found he had killed in self-defence.
Masango was released despite fingerprint evidence which proved him to be none other than Mchunu, who had earlier been found criminally liable — along with nine others — for the 1986 abduction and murder of three Mpophomeni trade unionists, and implicated in a separate trial which found former KwaZulu Deputy Justice MEC Samuel Jamile guilty of 15 counts of murder, attempted murder and incitement to murder Clermont political opponents.
Probed at the time on his decision to try Mchunu under a known alias, McNally said: “It is not at all unusual for a person to be prosecuted under a name different to his actual real name … (Masango) was the name under which he was arrested, the name under which he was employed by the KwaZulu Police and the name which appears on his police appointment card.”
Although McNally promised in September 1993 to “look into” whether there was a basis for rearresting Mchunu, this had not happened by the time of Mchunu’s fatal June 1994 car accident.
* Most recently, critics have questioned McNally’s decision to prosecute Zulu Royal House spokesman Prince Sifiso Zulu on illegal weapons charges in connection with his September 1994 televised scuffle with members of Inkatha Freedom Party leader Mangosuthu Buthelezi’s entourage. Critics say Buthelezi’s entourage, who stormed the studio, should have faced assault charges
* In sharp contrast, McNally declined to prosecute IFP senator and self-protection unit commander Phillip Powell for illegal possession of a Vlakplaas-style homemade shotgun confiscated from his car during the Transitional Executive Council’s dawn raid on the Mlaba paramilitary training camp.
Powell told McNally he “found” the gun in a bus and was on his way to hand it over to police. Critics point out he could have relinquished it to KwaZulu Police members present at the camp.
* Critics have also questioned McNally’s intervention in the case against Durban human rights lawyer Jenny Wild, who had unleashed numerous scandals since the 1970s. Most notable was Wild’s hypothesis suggesting the South African Narcotics Bureau (Sanab) and the apartheid intelligence services were linked to crime syndicates responsible for gun-running, drug-dealing, money-laundering, and ivory-smuggling to Unita and Renamo.
After two decades of alleged harrassment by Sanab, Wild and an attorney, Brian Cutler, were arrested in June 1993 on charges of cocaine possession. Although the deputy attorney general acting in the case indicated he would withdraw the charges, McNally overruled him and decided to prosecute.
* The critics also point to McNally’s recent decision not to prosecute South African Police Internal Stability Unit members who admitted to the September 1992 shooting death of Applebosch nurse Regina Dhlomo. McNally accepted the policemen’s “self-defence” claim that Dhlomo had attacked them with a panga when they arrived at her home in the early hours of the morning. The critics say the recent inquest “demonstrated the police version was physically impossible” and point out that Dhlomo’s son Mkhanyisi also sustained a gunshot wound before fleeing.
# Making prosecutors more accountable
Ann Eveleth
McNally may have many critics, but there is little the present government can do to drag him — or other attorneys general — into the present era under current
McNally was appointed in terms of the 1992 Attorney General Act passed by then-state president FW de Klerk in the dying days of apartheid. For the first time since 1926, the Act enshrined attorneys general’s independence from the justice ministry, overturning nearly seven decades of often explicit political
While the sources say they support the principle of independent attorneys general, their experience has been that the apartheid regime merely entrenched its own people with the Act, without requiring them to be accountable for their decisions.
Under the new Act, an attorney general can only be removed by an Act of Parliament and, although they are required to make annual reports to the Minister of Justice, the sources say this is of little consequence, since the ministry has no power to bring recalcitrant officials to book. The current situation led recently to calls for the creation of a “super-attorney general” from some quarters of the progressive legal community hoping to engender greater accountability among attorneys general.
The proposal, which first surfaced at a legal consultative conference in Cape Town earlier this year, has formed part of the debate on how a new South African legal system should function.
Existing attorneys general have slammed the proposal, however, arguing that such an appointment would see them once again under the tutelage of political bosses, a situation they say they fought against until the adoption of the 1992 Act.