Ivor Powell
The Office of the State Attorney has stopped providing legal assistance to victims of apartheid atrocities appearing before the Truth and Reconciliation Commission’s (TRC) amnesty hearings and is instead funding only the torturers and policemen applying for amnesty.
The decision hits victims currently employed by the state – mainly former Umkhonto weSizwe (MK) cadres who are now in the South African National Defence Force (SANDF).
The state attorney has been handling legal aid for victims and applicants who are in the state’s employ – a service offered in parallel to the TRC’s funding of anyone appearing before it.
However, although the victims affected by the decision will be able to source funds from the TRC, they will be able to obtain only a fraction of the money available from the state attorney. The TRC’s funding scheme, which it took over from the Legal Aid Board, operates on a far tighter budget, giving victims – or amnesty applicants – a maximum of R725 a day, as opposed to the state attorney’s daily allocation of up to R4E000 for state employees.
The extraordinary policy shift came to light after the Pretoria State Attorney’s Office last month refused legal assistance to General Solly Shoke, a former MK operative who was the victim of an attempted kidnapping, allegedly with a view to assassination.
The Shoke incident is included in the mammoth amnesty application by former Vlakplaas commander Eugene de Kock, who is already serving a sentence of life imprisonment in Pretoria’s top-security CMax prison.
Despite the fact that the state attorney has cut off Shoke, it is funding the representation of De Kock and his co- applicants.
The Pretoria state attorney’s official responsible for administering legal funds, Ben Minnaar, said the department had declined to help Shoke from funds set aside in terms of the State Attorney’s Act for the defence of members of the South African Police Service and the SANDF.
Minnaar said a separate fund was made available by the Cabinet to assist applicants from the liberation movement who now work for the civil service. These funds however totalled only R3-million to R4-million, whereas there was no limit on money available to the agents of the apartheid state.
Minnaar said a decision had been taken to fund only applicants in amnesty hearings via the Office of the State Attorney, and since Shoke was a victim, his high ranking in the SANDF cut no ice in terms of releasing funds for his legal representation in the forthcoming hearing.
Minnaar confirmed that funding for the vast majority of amnesty applicants was being handled by the Pretoria office. It is widely accepted in legal circles that perpetrators of apartheid-era atrocities continue to command comprehensive teams of lawyers and investigators, via the state attorney and at taxpayers’ expense. Legal representatives appointed by the state attorney from defence force and police funds in some cases have been able to submit bills of more than R5E000 a day, and to employ several additional legal and paralegal personnel at considerable expense to the fiscus.
Asked whether the decision to stop authorising funding for victims had been taken in consultation with the Ministry of Justice or other agencies in government, Minaar said: “It was a decision by the state attorney alone.
“We advised him to seek other sources of legal funding,” Minnaar said.
Shoke’s attorney, Crystal Cambanis of Johannesburg firm Nicholls Cambanis, said the witholding of legal assistance to Shoke defied an earlier directive from the state attorney late last year.
Cambanis said the TRC itself had agreed to pay for Shoke’s legal representation, but this would be at the tariff rate of R725 a day only.
These anomalies emerge against the backdrop of controversial amnesty decisions previously reported in the Mail & Guardian as the deadline approaches for concluding the TRC’s business. A lack of adequate legal representation and investigative capacity for the victims has been blamed for many failures to successfully challenge seemingly implausible versions given by perpetrators.
One such case is that relating to the death by electrocution of East Rand activist Stanza Bopape, where the amnesty committee accepted highly questionable accounts by Bopape’s security police torturers. The committee accepted the perpetrators’ story that a now- defunct hospital had records of Bopape suffering from a heart condition whereas Bopape’s family denied any such ailment. The applicants’ contention about Bopape’s heart condition was vital to their case that they had not used excessive force when torturing Bopape, and that he had instead died because of his ailment.
The TRC’s tariffs do not easily allow for the kind of paralegal work that would be necessary to set up convincing challenges to the defence of amnesty applicants funded, seemingly to an unlimited extent, by the taxpayer.
About 450 amnesty applications still have to be heard by the end of July. Since the amnesty committees began considering cases in 1996, barely twice that number of hearings have been conducted. Originally made up of 19 members, the TRC’s amnesty committees currently have just 13, TRC CEO Martin Coetzee told the M&G. He also confirmed that the complement of TRC investigators was severely depleted.