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This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

09 Nov 1999: Omar, Dullah

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POM. Minister, I will deal in most of our session with issues of justice and constitutionalism since they are the issues that I associate you with. I would have been here earlier in the year, but I was ill, and been finished so I'm looking a little bit in hindsight rather than at the future. Over the last number of months there have been comments made about the state of the criminal justice system in general and the Department of Justice. When one looks at the figures, I was just marking them out here: -

. (i). spending on the criminal justice system increased from R3.6 billion in 1989-90 to R20.4 billion in 1998/99 an increase of 456%.

. (ii). the CPI increased by 184% in the same period.

. The question is, has the taxpayer gotten a fair return on his tax money given the level of crime, the level of convictions. It states between 1991 (this is a report that was prepared by the SAIRR called 'On checking crime', between 1991 and 1996 the number of prosecutions and convictions dropped by 40% while the number of crimes committed increased by 20%. If you, who took over the portfolio when the new government took power in May 1994, if you had to give an account of your stewardship for the five years that you occupied the post of minister, what would you regard as the challenges you faced, first of all, on taking over the department; your attempt to integrate Justice, SAP, Correctional Systems into a coherent operating unit in some way; the successes that you had; the failures that you had and why those failures persist to have an impact on the system; and what needs to be done and whether or not the resources are simply there to do it? Let's start with that one.

DO. Well I think you've asked about eight questions.

POM. That should fill your half hour!

DO. I'll try to remember the many issues that you've raised. Firstly, I don't accept those statistics. I think SA statistics are very misleading. Those who are responsible for statistics for one or other reason present statistics in a way which really does not accurately reflect the truth. For example, if you talk about prosecutions and convictions, prosecutions and convictions are often related to the number of crimes allegedly committed irrespective of whether they've been reported to the police or not and irrespective of whether the police themselves launched prosecutions or not. So one gets figures, for example, that convictions are under 20% and this is absolutely fallacious because that under 20% is actually related to the amount of crimes committed, not the amount of cases brought to court. If you were to look at the past five years and you look at the statistics in relation to the amount of cases actually brought to court, then your conviction rate is somewhere between 60% and 70%. So there are statistics and statistics and I don't just accept those figures which were given.

POM. What would be the major reason for arrests being made but the case never making it to the court?

DO. One of the most difficult areas to transform has been the SA Police. Even now one of the big demands amongst black communities is that the SA Police should be transformed. If you look in the Western Cape it's only now in our second term in office that a new commissioner has been appointed who is black. The management of the police has been in the hands of the people of the old order and so there have been many problems associated with the police: (i) lack of loyalty among large sectors of the police and it is to be expected. They are the people who served the apartheid system, they upheld the apartheid system, defended it. They were the instruments used by the apartheid government to suppress blacks. 1994 comes along, it doesn't mean that they've suddenly changed. Many have changed and have accepted that they must work under the new order and the generosity of the new order has been such that people have not been sacked, unlike what's happened in Eastern Europe, Germany and so on. Our settlement contained its negative features. One of the negative features is that the old order continue to live within the new.

POM. Does that not run out in 1999?

DO. Until a few months ago.

POM. But now are you more free to fire people or are labour laws now in effect, that you yourself have put into effect, that make it more difficult to in fact fire people?

DO. The strange irony of the situation is this: that in terms of the negotiated settlement and the constitution which we introduced, the civil service, the army, the police, our courts, all of them remained in office and therefore the old order continue to live within the new with all the problems that we've seen. And then in our first five years in office we made use of parliament, which is a democratic institution, to bring our legal framework into line with that of modern democracies, with all the constitutional protections that people should have. Now those old order elements can make use of those new constitutional protections to protect their own positions. Some people may say that we've been very foolish. We do not think so. We think that that's a price we are paying to ensure that we do have a constitutional democracy. You can't say that we're going to introduce a human rights regime in five years time. You can't say that we'll have constitutional protections in five years time but in the meanwhile there will be no constitutional protections. You cannot say that. If you do, that five year time will never come. So we have a choice that we have to make. We bring in constitutional protections, not for ourselves, but for everybody. And the reason that there must be constitutional protections is precisely to prevent abuse of power, arbitrary exercise of power on the part of governments, and we would have had to take arbitrary action in order to deal with people. So it is an irony but I think it is in the best interests of our democracy in the long term. It will take us a longer time to complete the process of transformation. There will be more difficulties in the way. But I think that the events show that we are actually moving even though it may take a bit longer.

. You've a question with regard to Justice. If I were to sum up those five years I would say:- number one, the Department of Justice has been totally transformed; number two, during those five years

POM. When you say 'transformed' you mean in terms of staffing?

DO. Well not only staffing.

POM. Allocation of functions?

DO. No, no, no. Those are some of it but when I took over in 1994 there were eleven Departments of Justice, not because they were regionally based, not because people wanted to decentralise, but they were racially based. They were the apartheid structures of the time, each with different personnel rules, different laws applicable, different administrative arrangements to suit the apartheid order. You had the old Republic of SA and ten homelands, each one of them with their own department.

POM. So you inherited some incompetent people?

DO. I inherited a huge systemic problem, structural problem, leaving aside people for the moment, and those structures had to be got rid of and a new structure created. In other words in line with our new democratic dispensation we had to create a new single Department of Justice for all the people of our country. Our constitution guaranteed equality before the law, the existence of those eleven departments and eleven different dispensations meant that there was no equality before the law. So to create real equality in our country it was necessary to do that. It took us more than three years to effect that change along, to create a single department, which we did, and today there is one single Department of Justice responsible for the administration of justice in the country. But it also related to staffing. In the old Republic of SA the department was white male Afrikaner in its leadership. There were very few blacks within the system. Those blacks who served in the Bantustan administration were in very menial positions. It's white officials who dominated and dictated what had to be done.

POM. Even in the Bantustans?

DO. Even in the Bantustans. The arrangement that existed between the old white Republic of SA and those Bantustans was of such a nature that these people were minions of the apartheid state and nothing more.

POM. Did that apply to the so-called independent states too?

DO. Yes, it applied to the so-called independent states too. The person, for example, who was the Attorney General in the Transkei was a transferee, he was seconded to the Transkei and is a white, male Afrikaner. The person who was Attorney General in Bophuthatswana was from the Attorney General's office in SA seconded to Bophuthatswana. The persons who were allegedly the heads of the judiciary are people who were seconded by the Republic of SA to those areas, and the relationship between the old RSA and the Bantustans was that of master and servant. The powerful SA state creates the little monstrosities of Bantustans who were not independent but were dependent entirely on hand-outs from the apartheid regime. So there was no independence.

. But I am saying that we had to create a single department. We had to transform the department so that it is representative of the people of our country. Today you have a Department of Justice the head of which is black and 60% - 70% of its leadership in the country is black. We haven't driven out whites, whites are still members of the department  they serve but they are part of an integrated team but the department reflects the demographics of the country.

POM. How did you manage that particularly at a senior level? Was it by giving sufficiently attractive retrenchment packages to 'members of the old order' so that they would retire earlier so you could replace them or, since you couldn't fire them, by just hiring more and you weren't hiring additional people because you were cutting back on the size of the civil service at the same time?

DO. What I did was, it's a conceptual thing first of all. What has happened in many departments if that they regarded the department of the old RSA as the department and the others had to disappear. I did not follow that route. I regarded the old RSA department as one of the eleven departments that existed and I said all eleven had to disappear. Conceptually I created a new department and I asked everyone to apply for jobs. I did not offer retrenchment packages at all. I created a new department, I created a new vision. That vision is another area of our work. It is reflected in this document called Justice Vision 2000. There was a separate team which worked on that. It also took a couple of years to produce but it is based upon an empirical study of the needs of our situation. Then side by side with that, restructure the department and tie them to that vision. So all those who applied had to accept that new vision and work for its implementation. So all people in the old departments had to apply for their jobs. It did produce some supernumeraries but through natural attrition, if I could put it that way, many people fell by the wayside. Some who felt that they could not support this new vision did not apply for jobs and so they were out.

POM. If I had been, say, an Assistant Director General and I applied for a job in the new department, would the protections that I had received under the settlement ensure that I would be hired at the level of ADG?

DO. No. The constitution guaranteed your job, not your position. So I made use of that legal technicality, if you want to put it that way, that people had to take the positions which were offered to them. I myself did not do it. What I did is I set up structures within the department, I created the criteria and people had to apply for jobs on the basis of those criteria. So there was no arbitrary action on my part either.

POM. Just to clarify that because that's very important for me. The constitution said that public servants could not be fired, would retain their jobs, but it didn't say that they would retain the same jobs, it just said that they wouldn't be fired from the public service.

DO. What is more, you see, I did not retain the same department. That's why I'm saying conceptually it's very important to understand this point. I created an entirely new Department of Justice. Nobody had jobs in the new Department of Justice. They had to apply for jobs in the new Department of Justice. The old departments were going to disappear simultaneously so nobody could come along and say to me I want to retain my position, because there was no longer a position to retain. Their jobs were guaranteed. They could apply and they would get preference in the new department but they would have to apply. There are people who did apply and who have been placed in positions and they are quite happy in those positions. There are a number who have fallen by the wayside and who have left because they did not apply. But I'm getting stuck on one area of work, that's the department, but it's a very important area.

POM. It's the foundation of

DO. Actually, if I were to look back I think that's one of my biggest achievements, transforming the department because without a transformed department you can't transform the other institutions. The Department of Justice was also responsible to promote the legislation which set up a Human Rights Commission, Office of the Public Protector, Gender Equality Commission, the Constitutional Court, the Judicial Service Commission. Within that period of five years I passed legislation to create all those structures. The Constitutional Court, I think, is a big achievement, getting that off the ground. We had no such structure in our country before. We had to go through a process setting it up and so on. I've done that. The Judicial Service Commission is a new institution for appointment of members of the judiciary. We've strengthened the independence of the judiciary as a result of that. Then there's the Truth & Reconciliation Commission, it's another piece of work for which I'm responsible. I passed the legislation.

POM. That was legislation from your department?

DO. Yes, I spent a considerable amount of time doing preparatory work for the legislation, getting the legislation through parliament. The conception of having a TRC with an Amnesty Committee, a Human Rights Violations Committee, a Reparation & Rehabilitation Committee, is something which I developed on the basis, of course, of lots of discussions which I had with human rights experts and people inside SA. It took a long time to get that process through cabinet, through parliament and ultimately to get that process through cabinet, through parliament and ultimately to get the legislation through. But after the legislation was passed a lengthy process to appoint the commission itself. The legislation says that the commissioners are appointed by the President in consultation with cabinet, but we engaged in a much more elaborate process to appoint the commission. What we did, and of course I did this in consultation with the President, is to set up a special committee headed by recognised human rights experts to interview candidates, so the positions were advertised, people made nominations and this body of experts interviewed the candidates and then submitted the list of fifty names to the President and said these are fifty who have been named, choose from those names, and that's what the President did. So it was a tremendous process leading to the passing of the legislation and then after that was passed leading to the appointment of the commission.

. I would say both of those processes were very participatory. It led to our TRC being a very legitimate body, recognised by the overwhelming majority of the people. I knew that the issue of amnesty was going to be a big issue and depriving victims of their right to see justice done was going to be a very big issue and we had to ensure that it was legitimate. Our TRC is different from all other TRCs in the way it is structured, in the way we appointed the commission. It is also different in the sense that it's a result of a parliamentary process. Parliament passed the legislation, so the elected representatives of the people decided this was how it's going to be and how it's to be done. It's also different from other commissions in the sense that it did all its work in the open. The Amnesty Committee sat in public, people could attend their hearings, the other committees as well. There are weaknesses in the process but I am saying it's a very, very big process dealing with human rights violations in the past and we did that during this five-year period that I occupied the office of Minister of Justice.

POM. No wonder there were a lot of tensions.

DO. There were lots of tensions. Then of course the issue of safety and security is a big issue and has been a big issue and it remains a big issue. We did not have the institutional framework to fight crime. We did not have the legal framework adequate to fight crime and in these five years we put all those institutional changes into place and we've created a legal framework. For example, SA never had a crime prevention strategy, the different departments in the criminal justice system didn't work together, we had a fragmented system and we had to bring all that together. Taking into account that we were actually putting together elements of the old order, there were no new people to start with, those new people only came in during the five-year period, so we had to transform the departments and we had to get them to work at the same time. We've put the institutional framework in place. We've put the legislative framework in place. We had no law on organised crime, we had no adequate legislation on extradition, we had no adequate legislation for mutual co-operation in the fight against crime. We had no relationship with other SADEC states because SA had been hostile to SADEC during the apartheid years. All those are things that we had to repair and we did that in the period of five years. The institutional framework is in place, there's a new prosecution system in place which is proving to be quite effective. We've transformed the judiciary in many ways. The judiciary was an all white judiciary, all male in many respects: we now have many women. Now there are many blacks in judicial positions. The Chief Magistrates in many of the districts in our country are black today so there has been a considerable change in the institutional arrangement and the legal framework.

. At the level of the police I think the problems have been more difficult. In terms of crime generally the big changes that have taken place are that you've got a government that is committed to fighting crime. There has been a scarcity of resources but we've done what we could within the framework of resources. We've been very open about the crime situation in the country, unlike the past when there was no transparency. What we've done is to develop a recognition and an appreciation of what the problems are and then to develop a national campaign to fight crime. The public had no confidence in the police and the courts before 1994. They didn't work with them, didn't see them as legitimate, so we had to establish a legitimacy and we've done that through the establishment of community policing fora throughout the country. Many of them work well, many of them do not work well because many of the police who are from the old order don't like the community policing fora and therefore undermine them. We also inherited a great deal of corruption within the system and we've taken steps to deal with that corruption.

. I think our courts are now better managed than they were. We've introduced a court management system where there was none. Today you have it in place, it's been implemented now. In order to ensure that there is that we have separated judicial from administrative and prosecutorial functions within our justice system. Magistrates used to perform all those functions in the old dispensation. What we did is to remove administrative functions from them so that they could concentrate on their judicial functions. So in terms of our institutional arrangements I think we've done quite a lot to place SA in a position to deal with problems effectively.

POM. In terms of getting prosecutors and magistrates, did you run into a skills shortage?

DO. Yes there is a skills shortage especially amongst blacks and so we've developed in-house training programmes. If you take the prosecution system, we had to restructure it first of all, introduce a new prosecution system. We passed the law, the National Prosecuting Authority Act, in terms of which we created a National Director of Public Prosecutions. It's a new office. That office is up and running, it is working, it's bureaucracy has been established and for the first time we have a national prosecution system, national monitoring of the prosecution system and there have been some very good results. But through the NPA training programmes have been introduced for those who are entering and those who are within the prosecution system.

. Insofar as magistrates are concerned, you could not introduce training systems until such time as you had created a framework for an independent judiciary. Our magistrates were part of the civil service. That's a system which I inherited and I had to pass legislation to take them out of the civil service so that their independence can be seen and they're not regarded as part of the civil service.

. Secondly, there was no court management system. There are nearly 500 Magistrate's Courts in our country and all of them were managed in a very haphazard way from Pretoria. So we developed a court management system, we divided the courts into fourteen clusters of management of its own. We had to pass legislation.

POM. Minister, if I was a magistrate - what are the qualifications to be a magistrate?

DO. What we have done is to pass legislation creating a minimum requirement of an LL.B. degree, a Bachelor of Laws degree. At the same time what we have done is to streamline legal training at universities. We have created a four-year LL.B degree course which is now being implemented by all the universities and so more and more people are taking the LL.B. course.

POM. To be a prosecutor you would have to take an LL.B?

DO. Take an LL.B course. In other words what we are doing is to create a legal regime so that all people involved in the justice system, no matter at what level, whether you're outside in the private sector, prosecuting or you go to the bench, you have that minimum LL.B degree and the effect of that will be to bring the private sector and the public sector nearer to each other so that you can actually interchange and get the private sector involved in the work within the system of justice as well. There was a huge chasm in SA between the private sector and the public sector and that chasm has been reduced as a result of that work.

. I fear our time is running out.

POM. OK, do you want to stop there?

DO. I think so. We've done just one part. I think if you have the opportunity of looking at Justice Vision 2000 in the meanwhile you will see that what we did is we identified seven key result areas for transformation and I have been talking now of a couple of those transformation areas. There are others I think that we still need to deal with.

POM. OK, I have a copy of it. It's good to see you looking so good. I was getting worried there for a while, you were so strained and harried and rushing, I thought your job is taking an awful toll.

This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. Return to theThis resource is hosted by the site.