The Malan trial has highlighted the need to overhaul the attorney general’s office and re-educate its staff
THE failed prosecution of Magnus Malan and the outrage that followed it illustrated aspects of the lack of trust in the legal profession dealt with in this column last week. It also highlighted one particular area that cries out for transformation.
This is because, interestingly, while the initial outrage heaped scorn on Judge Jan Hugo for his acquittal of Malan, after the state president’s statement of confidence in the judiciary it became directed – rather more accurately, one suspects – at Natal Attorney General Tim McNally, who led the prosecution.
>From a distance and informed only by media reports, it had seemed for quite some time that the prosecution case was a bit ropey and that the defence advocates were making headway in their cross-examination of the state witnesses.
In his judgment, Judge Hugo seemed also to be of this view, and a number of his remarks were critical of the nature and style of the case formulated and presented by McNally.
Some of the more emotionally charged criticisms suggested that McNally had rigged the prosecution, but this is unlikely. It is true, of course, that McNally was, like most of those in the attorney general’s office at the time, able to get along with the Nats in the worst days of represssion and that he was sufficiently trusted by them to be given the task of leading the evidence on hit squads at the Harms Commission of Inquiry, where his performance was distinctly unanimated and lacklustre.
But a year or two ago, he received a good bollocking from the Parliamentary Committee on Justice for his failure to bring sufficient prosecutions arising out of the violence in Natal and, shortly afterwards, he produced the Malan trial out of his hat.
It is far more likely that his failure to secure any convictions in the Malan trial resulted more from a lack of competence in the hard work of prosecution – digging for the evidence, finding the proper witnesses, covering all elements of the offence and ensuring no gaps, and diligent and searching cross-examination.
For more than 30 years before 1994, the prosecuting authorities in this country must have had some of the easiest jobs in the world. In political or “state security” trials, statutory presumptions distorted the law and relieved them of the burden of proving some of the more difficult elements of any crime (such as the accused’s subjective mental state or his “intention”); many accused persons had confessions thrashed out of them in police cells, thus obviating the need for the time-consuming work of collecting and evaluating evidence; and many were unrepresented (or, and what is often worse, inadequately represented), meaning that the prosecutor was faced with no effective opposition.
This was the environment until just a couple of years ago. It means the older generation of state prosecutors, of which McNally is one, has, to a considerable extent, never had to develop many of the traditional and peculiar skills of a successful prosecutor.
But the environment changed with the advent of the Interim Constitution, and all these artificial supports are lost – for ever, one hopes. What the Malan trial highlights is the need for a further transformation in our society – an overhaul of the attorney general’s office to re-educate the staff to be able not only to conduct a fair prosecution, but also one that is competent and effective.