Millions of rands of taxpayers money is being used to defend apartheid’s generals. Anne Eveleth has been counting those costs and identifying the legal teams in the dramatic ‘Malan’ trial.
OPENING the Durban Supreme Court trial of former defence minister Magnus Malan and 19 others earlier this month, KwaZulu-Natal Attorney General Tim McNally declared that “justice is a priceless commodity”.
While the value of justice may be “too great to be measured”, the price of reconciliation is far more tangible — and rising, with the South African taxpayer footing the bill. So far the defence of 19 accused by at least 18 lawyers — many of whom cut their legal teeth in the service of apartheid — has cost the state at least R1,8-million in 12 court days to date with final costs due to be at least R7-million if the case ends in three months.
Of the 20 accused, only Inkatha Freedom Party deputy secretary general Zakhele “MZ” Khumalo appears to have secured his own funds to pay Advocate Jeff Hewitt, SC, former Durban Regional Court prosecutor Mike Lasich and IFP attorney Patrick Falconer. This leaves the state holding the bag for six of the seven high-powered legal teams — and the accused are getting the best defence their former employers could provide.
Former Tranvaaal Attorney General Klaus Von Lieres rose to the challenge of defending the six alleged Inkatha Freedom Party hit-squad members among the accused despite having retired on grounds of ill-health last year. The Legal Aid Board is paying his fees, as well as those of instructing attorney, IFP MP Koos van der Merwe.
The Ministry of Defence also left no stone unturned in its pursuit of the optimal defence teams for Malan and 11 other Defence Force accused, deciding to use four separate teams in consideration of “potential clashes of interest” among the accused, a Defence Force spokesperson said. Sam Maritz, SC — described by colleagues as “one of the best advocates in the country” — and his second, Piet de Jager, are known for their defence of police generals in the Harms Commission, while De Jager more recently represented the SADF in the Kumleben Commission of Inquiry into ivory and rhino horn smuggling.
Together with Pretoria state attorney Abraham Trumpie, they represent Malan, Colonel Jan van der Merwe and Major-General Neels van Tonder.
Mike Maritz, SC, who, together with Jaap Cilliers and attorney Chris Naude represents Brigadier John More and Colonel Adrian Victor, is reputed to be “even more accomplished” than his namesake, having an established practice in various branches of law, including civil law through which he has represented Armscor. General Jannie Geldenhuys, Vice- Admiral Dries Putter and General Kat Liebenberg are represented by reputed right-wing Pretoria advocate Hennie de Vos SC, Etienne Coetzee and attorney Percy Rudman.
Brigadier Cor van Niekerk, Lieutenant-Colonel Dan Griesel and Lieutenant-Colonel Jakes Jacobs are represented by Johan Englebrecht, SC, known for his defence of right-wing mass- murderer Barend Strydom. Englebrecht is assisted by Tokki van Zyl and attorney Adolf Malan.
While the constitutional right to a fair trial is widely accepted as a fundamental democratic right, some legal organisations have criticised the “elite” nature of the defence afforded the accused. Durban Legal Resources Centre lawyer Ranjit Purshotam said it appeared the government had “drawn a distinction by defending high-powered accused with high-powered lawyers, while rank-and-file accused get low-powered legal representation.
“In normal pro deo or legal aid cases, the accused don’t get to choose their legal representation, and they don’t usually get senior silk.”
The Legal Aid Board — which confirmed this week it has already paid R87 472 in pre-trial legal fees and expenses to Von Lieres and Van der Merwe for their defence of the six Caprivi-trained accused — defended its decision. Peter Brits, a spokesperson for the board, said Legal Aid did not “concern itself with the profile of the case, but rather with how legally difficult the case is”.
Brits said Legal Aid pays Von Lieres R6 750 each day he appears in court, while Van der Merwe gets R4 050. The combined fees for approximately 12 court days this month amount to R129 600.
The board also pays hourly rates of R300 to Von Lieres, R200 to Dorfling and R180 to Van der Merwe for consultation and preparation outside of court. While in Durban, the legal team stays at the Durban Club, which Brits said falls within the R300 daily accommodation costs allowed for each lawyer, amounting to about R10 800 for 12 days of accommodation.
Brits said the team’s fees were determined according to a “sliding tariff” accounting for: the complexity of the matter; the anticipated duration of the trial; the number of accused; and the experience of the legal practitioner.
The Malan trial was considered “very complex”, was expected to continue in excess of 25 days, Von Lieres was defending six accused and was senior counsel with more than 10 years experience, all of which accounted for the higher tariff; while the fact that McNally had decided to prosecute affected the decision to employ Von Lieres, said Brits.
Purshotam disagreed: “The Malan case is a simple case of murder and killing. If public funds are used, the criteria should be the severity of the crime, not the status of the accused.”
The four legal teams representing Malan and the other Defence Force accused are also substantial, each comprising a senior advocate at R6 000 per court day; junior advocate at R3 200 to R4 000; and an attorney at approximately R3 600, a South African National Defence Force spokesperson said. The past 12 days in court would have cost the defence force a minimum of R613 800.
The lawyers also receive between R600 and R320 per hour each in consultation and preparation fees, depending on their legal ranking, with a single hour of consultation for all four teams costing at least R5 120. Although the SANDF did not provide current totals, such fees already paid to Von Lieres’ team by legal aid suggest more than 100 hours of consultation and preparation. A similar amount for the SANDF teams would cost about R512 000.
The SANDF also pays a R250 daily subsistence allowance to each lawyer, amounting to at least R36 000 so far, while “the accused are being accommodated in a National Defence Force facility near Durban and are entitled to have certain travel and accommodation costs refunded by the state,” the defence spokesperson said.
A further legal team is employed by the South African Police Services to defend former security policeman Colonel Louis Botha. Advocate Anton Kilian of SAPS Legal Services said the legal costs for the team amounted to R290 202 by the end of February. Kobus Booyens, SC, and junior counsel Johan Wessels, received R5 000 and R3 000 per day, respectively, for pre-trial work, while instructing attorney Leon Venter was employed by the Port Elizabeth state attorney.
Booyens — known in Durban for his defence last year of Inkatha’s self-confessed hit- squad killers Romeo Mbambo, Gcina Mkhize, and Israel Hlongwane on whose behalf he argued in mitigation that the three had acted on the orders of high-ranking IFP and KwaZulu Police officials — will also recieve R80 000 for each month spent in court defending Botha, while Wessels will receive R50 000.
The state is also footing the R5 000 monthly rent bill for a flat in Durban accommodating the three lawyers, as well as air travel costs for Wessels between Durban and Port Elizabeth. Botha is staying with relatives while in Durban, said Kiliers.
National Association of Democratic Lawyers spokesman Krish Govender described the state- funded defence costs as “a travesty of justice and one of the most painful consequences of the negotiated process where the villians of the apartheid state struck a deal with those who carried the flag for justice.”