Wonder Hlongwa and Mungo Soggot
President Nelson Mandela overruled truth commission legislation guidelines to ensure former state president PW Botha’s legal team was paid almost double the going rate for representing a potential witness.
This week Minister of Justice Dullah Omar – who had been part of the negotiations on the massive bill – said the decision had been taken after careful consideration of what Botha represented.
“Mr Botha is a former head of state of South Africa. He symbolised apartheid South Africa and was therefore the most important person to speak on behalf of apartheid South Africa,” Omar said.
“We did not want to be vindictive; we did not want to create problems. We wanted to facilitate matters for him as much as possible. That is why we approved that the state attorney should negotiate with his attorneys and arrive at an agreement in terms of which he will be properly represented.”
Mandela’s legal adviser, Fink Haysom, confirmed this: “The issue was placed before us for consideration, particularly whether PW Botha was entitled to be represented by senior counsel. The office of the president believed he was entitled to have such representation.”
The agreement reached was that Botha’s senior counsel LAPA Laubscher would be paid R600 per hour and R6 000 a day – a potential R10 800 for an eight-hour day. His junior counsel Piet de Jager was paid R400 per hour and R4 000 a day and his attorney Ernst Penzhorn paid R450 per hour and R4 500 a day.
State attorney Ben Minnaar said they had not been prepared to work for the lower fees offered by the truth commission.
The commission’s standard fees for legal consultation and preparation is between R250 to R450 an hour and between R1 500 to R2 500 a day for representation, with an additional 20% on the appearance fee for each additional person that the attorney appears for, or up to the maximum amount of R4 000.
These rates are lower than standard commercial fees and many victims of human rights abuses have had difficulty in getting lawyers to represent them at commission hearings. The Legal Resources Centre, for example, which represents many victims, has had to seek additional sponsors to supplement its costs.
Omar said Mandela had been “involved” in the decision to pay Botha’s lawyers and truth commission chair Desmond Tutu had been consulted. The president was concerned about Botha’s reluctance to face the truth commission.
“We wanted Mr Botha’s lawyers to be paid sufficient money to enable him to have all the legal assistance he needs to appear before the truth commission properly represented. We did not want a situation where due to inadequate legal representation he was not able to prepare himself properly,” Omar said.
“Now that he has indicated that he will not be attending and he is being summonsed, the assistance he has been receiving has come to an end.”
National Association of Democratic Lawyers (Nadel) spokesman Krish Govender said he was “extremely surprised” that this deal had been struck with Botha’s lawyers.
“This is not sensitive to the needs of South Africa as a whole and I’m sure the truth commission could have struck a better deal,” Govender said. He said the fees paid to Botha’s lawyers were “top rate” and were not commensurate with the work lawyers performed at the truth commission.
“Lawyers are only there as legal bodyguards and not to perform legal battles. All they do is protect certain rights. People who come before the commission should not expect the kind of representation required in legal trials.
“The standard rate for commission work is low, but appropriate in relation to the kind of work done there.”
Botha was subpoenaed to appear in the George Regional Court on January 23 to face criminal charges for snubbing the truth commission. The 82-year-old faces two years’ imprisonment or a R20 000 fine or both if found guilty.
He receives a generous state pension, but could not be contacted to establish whether he would retain his legal team at his own cost.