/ 30 October 1998

McNally banished to Pretoria

The new “super attorney general” — whose post was created and fast-tracked through Parliament in July — will personally head a division to prosecute those implicated in the Truth and Reconciliation Commission.

Bulelani Ngcuka, national director of public prosecutions, said in an interview that his division would be responsible for bringing charges against all those implicated who had failed to apply for amnesty. This decision formed part of the decisive steps taken this week to transform the criminal justice system, which included the removal of controversial KwaZulu-Natal Attorney General Tim McNally.

McNally, who has been criticised for his apparent reluctance to prosecute alleged Inkatha Freedom Party assassins and police accomplices, will be transferred to Pretoria as special director of public prosecutions in Ngcuka’s office.

Ngcuka said he had no option but to remove McNally from his post. He could not remain in a position where “one of my representatives has completely lost his credibility. We are prosecuting on behalf of the people. Everywhere I go people say there are problems with that office.”

McNally’s removal could clear the decks for high-profile political prosecutions in KwaZulu-Natal, although it is more likely the African National Congress, the National Party and the IFP will agree on a general amnesty. Such political prosecutions would test Ngcuka’s independence.

The creation of his post and its swift passage through Parliament prompted accusations from the opposition and lawyers’ organisations that the incumbent would not be independent. Ngcuka — a lawyer who was formerly deputy chair of the national council of provinces — has earned widespread kudos in the justice system for his speedy efforts to plug the scores of vacancies that plague the courts. He has appointed about 30 senior officials – many of them at deputy attorney general level — since starting in the new job three months ago.

Ngcuka said this week he had not yet found a replacement for McNally. One of McNally’s most controversial omissions during his six-year stint in KwaZulu-Natal was his reluctance to prosecute alleged perpetrators of the Shoboshabane massacre in 1996.

McNally also presided over the unsuccessful prosecution of the former minister of defence, Magnus Malan. McNally failed to call the leading state witness, Daluxolo Luthuli, the commander of the IFP’s notorious Caprivi hit squad. McNally has also adopted unusual strategies in more recent cases implicating police and IFP officials.

The Mail & Guardian reported last month his public announcement that he was pulling off the witness protection programme a businessman who had implicated IFP officials in a scheme to transfer money from provincial government coffers to the IFP. McNally publicly questioned the integrity of the businessman, Sateesh Isseri, in a statement — despite the fact that Isseri remains a chief witness in a police probe into provincial government corruption.

McNally also said at the time he had not seen documents from a civil trial launched by Isseri against the provincial government in which the government conceded senior bureaucrats had fraudulently conspired with Isseri. The IFP fted McNally’s decision as a “victory for justice” and issued summons against the M&G for R250 000.

The IFP is likely to mourn McNally’s departure from its province. The party organised a march in support of the attorney general after the ANC had organised a march calling for his dismissal. In another intriguing case investigated by the M&G this week, a senior Durban policeman is facing disciplinary action for questioning a decision by McNally not to prosecute another senior policeman charged with five counts of fraud and unauthorised use of police vehicles.

Senior Superintendent Bobby Naidoo wrote McNally a letter expressing his disappointment at the decision not to prosecute Director Johan Stoltz. KwaZulu-Natal’s controversial police Provincial Commissioner, Chris Serfontein, then charged Naidoo “for failing to comply with the instruction to inform him about the contents of the letter”. Naidoo was tried without legal representation last month and his hearing was postponed until November 30.

McNally maintained that he had not prosecuted Stoltz since the senior policeman had been ignorant of the regulations on the use of police vehicles. Some police sources suspect a cover- up. “How can a police station commissioner be ignorant of the regulations?” said a police source. Stoltz is the only white policeman in charge of more than 700 black and Indian police.

McNally recommended the matter be settled internally. Stoltz was fined R450 and suspended for 12 months. But the police watchdog, the Independent Complaints Directorate (ICD), probed the case and came to a different conclusion. “The ICD felt that the evidence was of such prima facie nature that a prosecution would have been a formality,” said Stix Mdladla, the unit’s director in Durban.

“The matter was discussed at length with a member from the attorney general’s office who dealt with the matter and he stood by his decision.” The docket has since been taken by South African Police Service members from the national office in Pretoria for further investigation.

The other personnel announcement this week is that Transvaal Attorney General Jan d’Oliveira will become deputy national director responsible for prosecuting organised crime. D’Oliviera has also headed a special team to probe third force activities and will take unfinished work with him to his new job.

Ngcuka said he had had a frantic opening stint in his new office and suffered from a lack of resources. He said he had few permanent staff and had yet to be given a budget by the Department of State Expenditure.