This resource is hosted by the Nelson Mandela Centre of Memory, 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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
08 Dec 1999: Ngcuka, Bulelani
POM Bulelani is the National Director of Public Prosecutions, referred to often as the Super Attorney General.
I've come back to South Africa where I've spent an awful lot of time since we last met, I've been spending up to half a year here as you know well through Patricia, you had lots of dealings with Patricia when you were in the NCOP, when you were running it and Terror was running around being himself.
BN Yes, yes. That was a good time.
POM What I was going to ask you, what I'll begin with is when I first met you it was at this conference on the Bill of Rights in Boston.
BN Divided Societies.
POM Did you ever think that seven years later you would be overlooking a directorate that included seizing people's property?
BN No not at all, I never dreamt of it, it never entered my mind.
POM Do you see a kind of irony between the two?
BN Absolutely. I was there as a human rights activist and at that time our concern was for us to ensure that we get a progressive Bill of Rights and a progressive constitution for the country. That was uppermost in our minds. In a strange way we never thought beyond that, we never thought about what we will be doing after that. We thought our responsibility was to usher in the new democracy and we've got to take care of it afterwards. So individually we never thought what we would be doing as individuals, what one's responsibility would be. I can speak for Dullah, for Zola, all those people I was working with, not a single one of them at that point in time was thinking what we will be doing now. Even if we had I would never have imagined that I would be sitting here.
POM Do you ever find difficulties reconciling the kinds of actions you are required to take to break the back of crime and the fact that some people have said to me the Bill of Rights is if anything too rights oriented, it's perfection in one direction but we never thought there could be other consequences that require less protection in order to
BN I think the moving spirit of the constitution and the Bill of Rights was that when we are not in power the constitution and the Bill of Rights must also serve us well. That's what was uppermost in our minds, that we must draft a constitution and a Bill of Rights which would serve the ANC when it is not in government. It's at that point in time when you have no power that you seek the assistance of the Bill of Rights.
Now the question you are posing is whether I do have some contradictions in my mind as I try to break the back of the spiral of crime in the country. No, not at all. My theme has been that we must prosecute within the human rights context. You know in this country we were never able to develop skilled prosecutors and skilled investigators. Invariably we relied on confessions. People would believe you're a suspect, the police would believe you're a suspect, they would arrest you and beat the hell out of you until you confessed and once you confessed all the prosecutor has to do is to prove that confession, that it's your signature and that you made it freely and voluntarily. Now when you're trapped in detention and solitary confinement for six months how can you make a confession freely and voluntarily? But nevertheless the judges believed that all those confessions were made freely and voluntarily and they proceeded to convict people. It's a different ball game now. We have to hone our skills and investigations, make sure that we have the latest investigating techniques so that we can prove the cases, not the people who convict themselves, it is us who prosecute and convict so that we can prove they are guilty beyond reasonable doubt. That's the main thing. I want the prosecutors - and I believe very strongly that it is the prosecutors not the defence lawyers who represent the interests of the community at large.
POM Since this has been a problem with the SAPS in terms of George Fivaz has been talking about 30% of police are functionally illiterate, can't prepare dockets, by the time the case gets to court it's thrown out, never gets to court, gets thrown out before it ever gets there, you've poorly trained prosecutors who don't know how to adequately prosecute a case, so where do you draw your pool of (i) investigators and (ii) prosecutors from that and make them different from the run of the mill prosecutors and investigators that would be in the SAPS?
BN Well when I came here I had a discussion with George Fivaz and we said because the National Prosecuting Authority Act gives me power to set up what we call Investigating Directorates, now these Investigating Directorates have more powers than the ordinary police because once we set up these Investigating Directorates you have the power to summon a person and the person is obliged and compelled to answer questions even if they incriminate him, although the evidence obtained through that section cannot be used in court.
POM Now what if they refuse to answer the questions? Do you have the equivalent of what they would call in the US, the Fifth Amendment - I refuse to answer on grounds that it may incriminate me?
BN Yes. No but you are compelled, obliged to answer the question even if it incriminates you, yes.
POM Even if it incriminates you?
BN Even if it incriminates you but that will not be used against you, you can't use that information to go to court and say you want this person to be convicted.
POM On the basis of?
BN On the basis of that. Now because we have this power to set up this Directorate and in terms of those Directorates I am able to bring in the prosecutors, the Intelligence people and the investigators together under one roof, we said to Fivaz, "Look, George, let us consider what are the key priority crimes now that are facing the country, where we have problems?" And we agreed on that, we are going to fight the urban terrorism in Cape Town, the political violence in KZN and car hijackings in Gauteng. We said let's then use these Investigating Directorates, "But, George, I don't have the police. What I'm going to do, I'm going to select what I consider to be the best of the police that you have. I will also select the best prosecutors from what we have, we will also recruit from outside, bring them in, put them into these units." That's what we have done. Then we focused, because if we can focus on the priority crimes we will in that process relieve the ordinary police of the pressure that they have to solve those big cases because we will be dealing with the big cases and the police can deal with the ordinary rank and file rather than the main cases.
POM In one sense you've taken the best of his prosecutors and the best of his police away from him.
BN The prosecutors don't mind and the police liase. He indeed gave me good investigators in all those areas because he himself felt that the success of this initiative is the success of all of us, that we needed to break this spiral of violence, we needed to find solutions to the crime, so he was agreeable to that. That is what has made a difference. Because we have brought these people together, invariably the police would investigate a case and when they finish sometimes it would take two years before they finish the investigation, they then bring the docket over to the prosecutor. It would sit for six months to investigate the case.
POM In fact I was going to ask, do you work what is the relationship between you and the SAPS? Do you work, I know you work in co-operation with each other, but do you have the authority to say in cases you think they should be investigating and haven't been investigated, to step in? In a sense do you have an overriding authority to step in and say - we see a case here, we see a case there and it's not being investigated, it's not being followed up, it's too slow, the process is too slow. I'm sending in my people too.
BN We have service arrangements now. The police that I have, they are seconded to me by the police. It's an arrangement that I have and those police they take orders from me. Now I am the one who can decide whether to prosecute or not to prosecute and for me to be satisfied that I should prosecute a case I need to know that there is at least sufficient evidence for me to proceed. So in that sense, because I must determine whether there is evidence or not in the docket, the police then of course they listen to what I say and they comply with the orders I give. I can intervene, I do intervene now and again and take over a particular investigation but I don't like doing that, I do it very, very rarely and even then I do it after consultation.
POM But you might turn it over to your prosecutors then to prepare the case?
POM Can you initiate, this is probably a stupid question, but can you initiate investigations on your own?
POM So if you see what you perceive from your intelligence gathering or whatever that a crime has been committed here and the police in the area are doing nothing about it, would you ?
BN I do that almost every day.
POM Would you either inform them to investigate or would you say - ?
BN I first determine what investigation they have done. If I notice that there has been some negligence on their part I then step in but if I see that they are doing a good job I then step back and say they must continue. But I am able to call upon them, I am able to call for the docket and to supervise it and say show me what's going on in this docket and then to take it over if I'm not satisfied with what is happening.
POM So would you say that the key to, the DPP, maybe the answer is self-evident, is the key successful prosecution of a case or effective investigation?
BN It's both.
POM The two work hand in hand.
BN The two go hand in hand. You might have a very good investigator, if your prosecutor is not experienced enough and I know that, I was a defence lawyer myself who ran rings around the prosecutor and people get acquitted not because they are not guilty but because the prosecutor is incapable of presenting a good case before the court and therefore you use all sorts of technicalities against them. Again, you might have a very good prosecutor but the investigation is flawed, then you've had it. So the key to success really is to have good investigations and a good prosecution and that is why we are doing these initiatives now of mine where we locate both the prosecutor and the investigator under one roof and say you guys, you work together. One advantage of that is that the prosecutor is aware of the case, he knows it from the beginning, he can identify the witnesses and he can then direct the investigator and say, remedy this flaw, that flaw and that flaw. Close this loophole, go and do this, go and do that beforehand. And the prosecutor when he gets to court has got the facts of the case at his fingertips because he knows he has lived with the case throughout and is better able to cross-examine the people to lead the evidence and his witnesses, he knows how to present the case to court. This is the trend by the way internationally, where you get a closer working relationship between the investigator and the prosecutor. Of course what is important is that you must have some form of a distance as a prosecutor because you have a duty. Your duty is not just to the victims of the case but it's to the court to ensure that justice at the end of the day is done. Now once it becomes too close to the investigations you lose that objectivity so what you normally do is you have two prosecutors working on a case. There is one who directs the investigations and there is one who will take the case to court so that they are able to have some form of objectivity. Let me make an example, there might be information which is detrimental to the case of the state but beneficial to the accused. If that information comes to the knowledge of the prosecutor he must inform the court about that information.
POM Inform the defence.
BN Yes inform the defence, don't withhold that. Now if you are too involved with investigations of course you're going to withhold that because you want to win your case at all costs.
POM In fact many, I used to work at one time in my life, believe it or not, for the District Attorney of Boston, and there were occasions when they simply lost cases because it would be revealed in the course of the trial that they had information that would have benefited the suspect and hadn't disclosed to the defence team and the judge would just say, "Case over", and the guy would walk whether he was guilty or not guilty.
BN That's one of the difficulties that we have and it takes quite some time. Some offences which are heinous crimes take this bomb in Cape Town, we are working with that thing day and night and you try too much, what sort of a person would come in, plant a bomb in a restaurant where there is just about everybody eating there, even some people who have done nothing to him. It makes you feel so angry, you can understand sometimes why people would withhold information. That doesn't mean you're justified. It just makes it that much more difficult.
POM Now in cases like that do you have computer access to data banks in other countries, for example, that would have psychological profiles of the kind of person who would engage in that kind of act so you can instruct your investigators or the police that you're looking probably for somebody who might be (break in recording)
Continuing from where we stopped but moving in a different direction. Amnesty and the question of what is going to happen to the 200 odd persons who are named in the Truth Commission who did not reply to summonses. Quite an amount of time has gone by and yet no decision has been taken on that. Is there (i) any official policy in regard to what will be done, and (ii) what about people whose names came up during the amnesty hearings? For example one of the people that I interview every year, who was at the battle front in Thokoza during the early nineties, was named in the application by somebody from the IFP as being the leader of the Khumalo Gang. He's now in parliament. Other names have come up through people making their amnesty applications or whatever, is there either going to be any follow up in that direction or did the guys who said we're going to take our chances, the state won't have the necessary resources to mount a case against us, it's going to be too time consuming, it's going to cost too much resources, just sit tight and it'll all pass by.
BN A few months ago I was called by the Press Gallery, the media, in parliament, they asked me to brief them on the work that I have been doing there over the last year. This question was raised that you are raising. I said to them that this is one matter that keeps me awake at night. You see the difficulty that we have is the following. We have now spent a year studying the Truth Commission report. We have pursued a number of those matters. We are investigating them or continuing with the investigations in some of the cases where the people didn't get amnesty. A pattern is beginning to emerge.
POM Where they didn't get amnesty, applied for amnesty and didn't get it as distinct from not applying at all?
BN Yes. Those who have applied and didn't get amnesty we are continuing with the investigations into those cases. Some of those cases are very old, 20 years old. Memories of people have been affected, witnesses have disappeared, we can't find witnesses, documents have gone astray. A pattern is beginning to emerge whereby those people where we have strong cases against them they have been granted amnesty. Those people where we have very weak cases against, don't have amnesty. The question really that arises is what do I do? Do I spend the state resources investigating these cases which were never properly investigated many years ago where I have an idea what the end result is going to be and investigate cases, spend a lot of money on those cases at the end of which I will probably have a very good case to present to court and people will probably be acquitted. That's the first dilemma that I have. The second one is the following: those people whom I will be able to take to court will probably be the junior officials. The masters who gave the instructions we're not getting any evidence against them. They have covered up their tracks and the trail is very cold. That's the dilemma that I'm having, that I might end up being able to prosecute the foot soldiers and the Generals are sitting comfortably, enjoying their voluntary severance packages at home. It's a moral dilemma.
POM To break it down into two other categories, what about the 200 plus people that were asked by the Truth Commission to respond to allegations that were made against them and didn't bother to respond?
BN The difficulty there is what I'm talking to you about. The reason why they didn't bother to respond is because they knew that those allegations were just allegations, not evidence against them, that we do not have strong evidence against them. The dilemma that I have is whether now I should take the best counsel that I have, the best investigators that I have, and let them focus on investigating these cases. It's going to take a bit of time to investigate those cases.
Let me give you an example, we decide to investigate one case and I take out people, some of the investigators, I ask them to investigate those cases from the Eastern Cape. Whilst they are busy with those investigations violence breaks out in the Eastern Cape, taxi violence, people get killed and I am called upon by the government to intervene because there are allegations of police collusion in the taxi violence there and therefore they are not satisfied with the police being involved so they wanted me to go in and be involved. What do I do? I took those people I had asked to go and investigate those cases. I said I know this is important but people are dying right now, we can't justify us sitting back and saying no, no, no, we don't have people, we are doing a very important job. Leave it for the time being and concentrate on stopping the present violence. So I had to take them away from that project for three months where they had to go and work on the deaths and things. I am happy to say we have now arrested all those who planned that taxi violence in the Eastern Cape. We identified 24 hit squad people and arrested all of them. We've solved most of those cases there which go back to three, four years in the Eastern Cape. We did that in the space of three months but the moral of the story is I had to shift resources from what they were doing to what they had to do now.
POM And you're always going to be faced with that dilemma because there's always going to be another.
BN Precisely. And I think that is the difficulty that I do have. I can tell you, Padraig, that the person who is responsible for me being where I am today, me sitting where I now do sit, is the late Griffiths Mxenge and his wife. They are responsible for me being here, they trained me as a lawyer. I worked with them, they brought me into the ANC, they made me the lawyer that I am, they raised my consciousness, recruited me into the movement and trained me in addition to that. But above all they treated me like their own child. We had a very, very close relationship. There are times when he would say that I was his first born. His sons and kids they know that, I am very close to them even now. And the question is, what do I do about those who killed them? I want to find the people who killed Mrs Mxenge, they have never been found. I want to find them, I want to know who did that. I would like to prosecute them, very seriously. But given the circumstances what do I do? And also at a higher level much more money, at a matured level, politically matured level, what are the demands of the country today? Do we close this chapter now? Do we continue to dig into the past? Don't we forge a new consciousness as a country and move forward? Those are tough questions. I don't have answers.
POM There's a third part, this person who was named yesterday at a TRC amnesty hearing by the person looking for amnesty as being the person who directed all the murders in Nongoma or the evictions of non-IFP supporters from Nongoma and then was involved deeply in the violence in Thokoza, both now sit in parliament and if you were to take everybody whose name has been mentioned as being involved and follow up you would spent the rest of your life just trying to
BN Just digging, digging and trying to find them. That's what would happen. Is that what we want to do? I don't think that is for me to answer that question. I think the leadership of the country must answer that question but they must give me directions.
POM If you had an opinion, if you had to make a recommendation, if they came to you and said listen, we've talked about this thing, you're the person who would be in charge of prosecutions if we proceed, what are the implications, what are the costs, what are the prospects? Is it better to go ahead or is it better to declare this chapter in our history over and we have enough to deal with and get on with to create the new SA that we all fought for and want?
BN If I was certain of the results
POM But you can't be.
BN If I was certain of the result my advice would be let's proceed because I think it is absolutely critical that we begin now as we start afresh to build the culture of the rule of law. This notion of 'never again' must be ingrained in people's minds. They mustn't think that we will start a war here and we will negotiate and then we forgive each other. We don't want to do that. So if I was certain of the outcome of this process I would certainly say let's go for it but I'm not so I begin therefore to say what are the costs involved both in terms of finance, both in terms of raising the expectations of the victims, because I don't want to raise the expectations that the killers of my parents are going to be brought to book when in fact I'm not going to do that, and the costs in terms of the country itself, coming to an understanding with itself as a nation. For as long as we keep this thing, keep on going back and digging in the past, we can't say we have moved because we are still stuck.
POM The more you dig the more you will find so it's like digging into a bottomless pit.
BN Exactly. The answer is difficult.
POM We talked a little bit the last time, very briefly about the poor quality of investigators, that the police, the part when the new dispensation took over and poor investigative techniques and whatever, and yet I came across a survey, this is The Victims of Crime Survey, that had a figure that surprised me and it was that 41%, this is quoted in Crime and Conflict about two issues ago, is that 41% of people living in SA believed that the police were more effective prior to 1994 than after 1994. It threw me as to why township people would believe that the quality of protection, if you like, they received from police during the apartheid days, that as many as 41% believed it was better then than it is now.
BN I am surprised that the figure is so low.
POM That it's so low?
BN Yes, I'm surprised. That's true. You must remember that before the police were really concerned about political activists and they were solving those cases and you must also remember that the police they were the ones who were very, very brutal against our people. They were protecting white people at our expense. They were attacking us. That's why people say that they were effective. It's true.
POM But when they say more effective, they mean more effective in protecting them?
BN No. I don't know what the question was but to my understanding the police were effective in the work that they were doing, in protecting the interests of the state.
POM OK, I don't want to spend too much time on that.
BN I don't know whether I understood you. Let me say this, Padraig, it was not the army that we were fighting against in this country.
POM It says when people were asked whether they believed that the police had become more or less effective, that's how the word was used, since the April 1994 elections, people living in formal urban areas, 42% said they were less effective and in informal areas 41% also thought the police had become less effective.
BN I am not surprised but I am just saying you must remember what was the perception of the people towards the police. It was that these are the people who are the enforcers of the apartheid laws. These are the people who were there to defend the interests of the white community and in carrying out that mandate which the police had they were very effective, they were very, very effective. Now that they have to defend the interests of everybody they have become less effective. Now that they have to protect all the citizens of this country they have become very ineffective. They were very effective before, they are not now.
POM How about the distribution of police resources? I remember 80% of police resources were in white areas prior to 1994 and only 20% for the rest of the country. Has that changed in any significant way?
BN I'm not an expert in that area but I do know for a fact that the President's Office did a survey last year of the whole country and they examined the areas which were the hot spots of crime. What they discovered is very, very interesting. It was that in those areas where crime was very rife the coincidence happened to be the most disadvantaged areas of the community and it also happened to be those areas where there were no police resources. So there's a correlation between crime and poverty, correlation between crime and poverty. They saw that, it came out of that study. Now this is one of the areas which Meyer Kahn has been focusing his attention on, re-directing the resources from the police towards the disadvantaged areas. This is what they have been trying to do. Whether they have been able to achieve that or not I can't say at this stage.
POM In your own view, why has the rate of transformation in the police been so slow, as it were? One hears about the old guard are still entrenched. Is that true to an extent where they are actively interfering with the process or have most of them come round to accept the new state of things? Why is there so much corruption within the police itself? Even in most of the cases in the paper you see indications of possible corruption here, possible corruption there. Well one can't gain a full picture of what it's all about but there are hints of corruption being involved but why is there so much, why is it so difficult to stamp out and is that a matter for internal police investigation or is that a matter where you could step in and have a special unit established to do nothing but, or do you have one that does nothing but concentrate on police corruption, identifying among other things the causes for it, not only grabbing the guy but why is it happening all the time?
BN You've asked a number of questions. The first one, let me say that I am very disappointed, and I'll repeat it again because I think it's relevant. The people who were in the forefront of the struggle, in the struggle to defend apartheid, it was not the army, it was the police. All right? That's the first thing. The second thing is that the credibility of the police in the community is very, very low and the consequence of that is nobody worth his self-respect wanted to join the police force from the ranks, one the black people and two, the progressive whites didn't want to join the police force. Thirdly you then found that those who went to the police force were those who had no alternative, who couldn't get a job anywhere else. So basically you got the
BN That's correct, that's the word. You got dregs coming into the police force. So there isn't a core of leadership from the black people which is in the police now. That's the first thing. In addition to that those who were in the army, in the MK, they have moved to the army, to SANDF, and others have joined the other departments of government. So you don't have people now who are trained to take over that leadership in the police force so it has been left to the old guard to be in charge of transformation. Now the result of that is what? No transformation because they don't agree to it. You will find one individual like George Fivaz wanting to do it but not having a support base to carry out the transformation. So you can't ask the very same old people to transform themselves. That's not possible. You need outside agencies to work together, to infuse that and then get people to begin to agree. If you leave them on their own it's just not possible. That's what has happened.
The question of corruption: people lost the reason why they were in the police force, spent all their lives fighting to make sure that this black government does not become a government. They must now change and serve this government. And people say they pay lip service but at the end, deep down, they don't want to so they have lost the commitment, they have lost the morale to work there. In addition the working conditions are poor, low salaries, a thankless job, and the opportunities for corruption are galore. Organised crime survives in any community through corrupting the law enforcement officers and that's what they have done here in this case.
POM On the one hand the corruption among whites, white officers or whatever, is due to they now have to serve a dispensation they don't really want to serve so they don't give a damn, they take what they can get out of it, and in the case of black personnel it's because of low morale, low quality of education.
BN Low salaries and opportunities for them to make a quick buck.
BN Now the last part of your question. The government has understood that and the government has said you can't deal with this corruption in the entire criminal justice system by asking the police to investigate themselves. It's not on. What you need to do is to set up an agency outside of the police. That's why this work of investigating corruption within the criminal justice system has now been given to this Directorate of Special Operations, the Scorpions. So we are in the process of setting up that to do that work.
POM Regarding the Scorpions, as you mentioned, what is their defined mission?
BN Very simple, it is to deal with priority crimes in the country and they will define priority crimes as follows: it's organised crime, serious economic offences, crimes against the state, corruption within the criminal justice system. Now organised crime you again break down into three areas: drug trafficking, car hijackings and then thirdly proliferation of illegal firearms. Those are the three areas that we focus on. They are all related.
POM Have you, and a question I was going to ask you again to give a general assessment since I wouldn't expect you to have the precise figures, but if you were looking at all the serious crimes committed in the country and you had to identify perpetrators, (i) how many would be indigenous gangs or cartels, since they're getting more sophisticated, (ii) international syndicates with links to local operations, (iii) what you might call your 'ordinary decent criminal', your guy who goes out and smashes a shop window and grabs a TV set and runs off, (iv) that are politically motivated and there's a political element involved and it would be gang warfare, (you mentioned the last time you had identified urban terrorism as the priority crime in the Western Cape - why did you identify that crime and what do you mean by urban terrorism), (v) white collar crime and (vi) domestic crime, that is crime in the home I think which accounts for 33% or 34% of all crime. You've got to use different strategies for each category. Your task is to address which categories? Organised crime?
BN No. Let me say this
POM Organised crime and corruption within the criminal justice system itself.
BN You know the opening up of the South African borders also saw an increase in international syndicates coming to SA. They were the first to move in and make an impact. But because, you see, the South Africans are welcome all over the world, we can travel anywhere, more than you guys even in the US can, you can't go to Cuba, we can. We are allowed to go anywhere.
POM Irish. I can go where I want. Cuba too OK, China too, any place. You name it, on an Irish passport.
BN Great, great. So that's number one and number two they found that some of our guys are still naïve, they are not streetwise. So you find that you now have some of our chaps who are languishing in prison in Dubai, in Latin America, everywhere. All the things happened since the opening of the borders in 1994. There is quite a great deal of we find the Russian Mafia, we find the Moroccans, we find the Nigerians of course, the Chinese Triads, all of them have come into South Africa, the Bulgarians. All of them the Mafia, all of them here they have a foothold.
POM It sounds like a convention of the United Nations.
BN You find them more in Johannesburg here. You take places like Hillbrow, Joubert Park and so forth. You go to Durban, they have moved in in those areas. But they are working hand in glove with the South Africans, those links that they are having. I made an example the other day that you find abalone, fish from Cape Town, smuggled out of Cape Town to Sri Lanka and those guys are paid not in terms of currency but they are paid in mandrax, mandrax tablets and things coming back from southern Asia to SA. These guys export marijuana to the UK. So you find these are things that are now happening.
POM They're trading in goods sometimes rather than in cash.
BN Goods rather than in cash, there is no exchange of money. Send fish this side and you get your mandrax, you send your mandrax to the UK and you get your money going to the United States. To come back from the US it goes to Colombia to come with cocaine. This is what is happening in SA. So we do have our own indigenous gangsters and so forth who are now getting more and more sophisticated. One advantage is that we had when we started, they had become complacent because they had the police in their pocket and they were not getting arrested. They were getting away with most of these things. So when we started facing them we found that it was not too difficult to find them precisely because they had become complacent but they are beginning to clean up their act now. When we started in Cape Town we identified who were the key drug lords there and we said we think in six months we must have all of them before court. We did, we did. Now in other countries most of the guys when I talk to them they say, "In six months? It takes a long time to get those guys." But we were able to do that precisely because of this factor that I'm talking about, that they've become complacent.
Now you talked about strategies. Political violence is minimum. The area which was bothering us a little bit is KZN but even there the situation has stabilised. We don't have cases of political violence that much. We have a little bit of right wing, even then it's on the fringes. So political offences? No, I don't have a single case now that's proceeding other than possession of arms and ammunition and things like that which I can really say these are crimes against the state. I don't.
POM That's the IFP guy, Philip Powell.
BN Even with Philip Powell I am still conducting investigations but at the end of the day I'm going to charge him for possession of arms and ammunition. I am satisfied that I don't have a case where we can say there are people who are trying now to subvert the authority of the state, who are challenging the authority of the state. That's not true, I don't have that, we don't have that challenge.
The gangsters are a big problem in Cape Town. It's been there for years. The gangs in Cape Town. Again that has to do with the question of drugs because it's the market and people protecting their own turf. But it's an old thing in Cape Town, it's going to take us years to break that. But the strategy that the government has adopted, I think it's a very good strategy, the National Crime Prevention Strategy, which looks not only on the supply side measures but also on the demand side because some of these drug lords they are providing a good facility to the communities. Where they stay they buy things, they give people loans and things like that so we're coming in with Department of Education, Department of Welfare addressing the concerns of the people, lifting up their living conditions and improving the living conditions of the people whilst we on our side are coming down hard on the gangsters.
POM Just on that, when Fingers Ramaphote was killed I went to his funeral.
BN You went to the funeral? So you heard the priest?
POM I heard, I was amazed, this man was a hero in the community. He was somebody that kids should look up to and emulate and there were prominent people there from the community. This man was admired in his community. What does that say about how people are thinking and feeling when they look up to the guy who makes it by breaking the law but comes back and spreads some money around, acts like a Robin Hood, it's kind of glamorous to be out there fighting because the culture of fighting is still in the spirit. Somehow it doesn't matter what system it is, whether it's their own system or anybody else's system, you fight the system.
BN You know what, you ask any guy here, any guy from the township, my principal, when I walked in there I did a case of theft, a case of ordinary theft from one shop and he said, "Boy, theft from a white man is a political offence, you never plead guilty. You understand that? Theft from a white guy in this country is a political offence." So there was this notion of redistribution and indeed if you steal anything from town it's fine, it's cool. You go to town, you meet a guy, he sells you a watch and he tell you, "I stole this thing from my employer", you said "Then that's fine." It's never acceptable to steal from the township, never, to steal from anybody else but if it's from the employers, from the other people because throughout we were engaged in a war and people would say, we are not justifying it, but people would just say, "Those people are our enemies, you can steal from our enemies."
POM If you don't get it back one way you get it back another way.
BN They are oppressing us, they are doing all sorts of things. But that's wrong. But that has given a culture where some of those things - that's the culture that we're trying to change. It's a tough one.
POM Whose, I won't say, area of responsibility since it's a societal one, but you have identified what to me would be one of the crucial aspects of change in SA and that is changing behaviours from what they were to a new thing, but who is on the frontline of doing that?
BN We're having discussions with the churches. Bishop Dandala, President of the Methodist Church is leading a crusade for the moral revival of our society, which is very good. He is the Presiding Bishop of the Methodist Church in South Africa, Bishop Dandala. He is leading that initiative. You see from where I am we have this very powerful weapon known as the Prevention of Organised Crime Act which makes it possible for the state to seize assets of people who are engaged in crime even before they have been convicted of that offence, using civil procedures.
POM That was one of the questions obviously I had to read too. What, since in one sense this could be construed as a violation of the person's civil rights, they haven't been convicted of anything, haven't been taken to court, haven't been charged with anything and yet you arrive, knock on the door and say
BN No, I don't do it like that. How it works is this, first we have to make a case, we have to make a case but the difference is that the test is not the same. The test is on a balance of probabilities whereas in a criminal case the test is beyond reasonable doubt and here you have to prove you know - I bought the cell phone from Teljoy, I can prove that, and the money that I had, where I got that money I can prove it, you paid me in salary. But you don't work, you drive a wonderful Mercedes Benz, you don't work, you have no source of income, and then there's a reasonable suspicion that that car is the proceeds of crime. So you then go to court and you say Padraig drives this wonderful Mercedes Benz, has no other source of income. We believe, we have reasonable grounds to believe that this is the proceeds of crime. The onus is on you to say, no, I inherited this money from my grandmother. Now once you prove that then you get your car back but if you can't prove that then you forfeit it to the state. You must be able to prove it.
POM So first of all you have to make a case, then you go before a judge.
BN We have to make a case, we go to court, we go before a judge.
POM And the judge may say I've reviewed your case and I don't think that you've established a prima facie case, you will have to go out and collect more evidence to convince me. OK. He can say that?
BN He can do that, yes, and then kicks me out. Then I go back, I start again, I scratch around, look for more evidence. So we don't take cases we don't take people's property without a court order.
POM OK, so you've got a court order.
BN We must get a court order, that's the first thing. Secondly, we must satisfy a judge that the property in question is the proceeds of crime or is used in the commission of an offence. It's the same statute that you have in the US, your Rico(?) statute. This is the statute that you're using.
POM What's it called?
BN Rico the racketeering. So it's not a question of there are those people who are fighting and saying, (i) the presumption of innocence, everyone is presumed innocent until found guilty, that we are tampering with that. That is not the case. (ii) There are those who argue that everyone has a right to property. We say that it's not just every property that you have a right to. You don't have the right to stolen property therefore you can't claim that the courts must protect your title to the property that has been stolen. So we are satisfied that it is not violation of people's rights at all. If it were we would certainly say it is something that is justified in an open and democratic society because we're trying to protect the property of the people.
POM So after you get the court order you can then go to the person's house and say we've a court order here which allows us to seize the house, the furniture, everything that's moving or not moving in the house. The person says, what do you mean? That's my favourite chair. What do they at that point have a right of? Appeal? Can they get a court order to stop you?
POM Rather than finding themselves at the end of the day, literally of the day, standing on the street saying my house has been sealed off and my furniture has gone, can they when you've got to seize the property - ?
BN They can go to court and challenge us.
POM And can they get a restraining order when the challenge is heard?
POM But they can't move what's in the house?
BN They can't move things out of the house, they can't do that. No they can't move the things out of the house.
POM So you would take an inventory of everything.
BN Take an inventory of everything.
POM That's in the house and then he would go to court and say this is crazy, this is my property, it's not built on the proceeds of drug trade or anything. It's my grandmother who has been dead for 100 years, don't know where the title is. How long would that process take from when you go to seize and the time that he might, again, where the judge will say you've no case to the guy, they can go ahead and seize assets and take your property, that would take how long?
BN That depends, it might take a year, it may take a shorter time. It really depends on the person the other side. If, for example let me give you two examples that we have done now. In one case in Durban we moved in and within a week they were back in court and they challenged us and they won the case against us on a technicality and we're back in court again, we sorted out the technicality, we're back in court to acquire the property but you can say now it's taken us almost six months fighting this case and we're still continuing up to next year. In one case we moved in, they didn't oppose us, they have not opposed now. We've asked for the final order, we've been granted it, it's taken us three months to get everything finalised.
POM Some of these guys, I would assume, can hire or afford to hire very high powered Attorneys.
BN Oh they do.
POM Who know every trick of the game, delaying tricks.
BN We've been dealing with the best brains in the country. They've been hiring the best in the country.
POM One thing it makes for is that it gives your whole unit terrific visibility, it makes great television to see furniture being moved out of a house. It conveys a message that something is being done.
BN It goes back to the question you raised about these criminals who are in the township who have these wonderful cars, these big houses, as you said people see them as idols. Now when we go in there and take those things it sends a message to those kids in the township that this is not the right way to do things. That's exactly what we want to do, that's why I raised this question that we have this powerful work which is designed to redress that, that those who live off the proceeds of crime must not be seen as models of society. And the way we're doing it now, we're targeting, we're saying what are the priority areas in the country? Who are the guys who are behind this organised crime in society in the country? And we target those, hopefully, and get the big guns out of the way, the small ones will start running. That's what we hope for.
POM I like the idea of these guys who have been built into role models, the kids idealise them and suddenly they're just standing there powerless. There's nothing they can do and there's nothing they have left they are left with nothing.
BN Left with nothing, that's what we want to do.
POM Jurisdictionally is your unit under the Department of Justice?
POM And are the Scorpions under the Department of Justice or is there legislation that they might be attached to the President's Office or be directly accountable to him? Is there a debate going on about that?
BN The view is that the Scorpions will report to me and I report to what we call the Inter-Ministerial Cabinet Security Committee. Now that committee has eight ministers sitting in it which include Intelligence, Safety & Security, Justice, Correctional Services, Finance, Foreign Affairs, Home Office and Defence. All these are linked to the security so that I report to that committee in sitting with the President. The President sits in when I report to that committee, the work that we are doing, the direction that we are taking, when I report to that committee they sit in together. But for purposes of day to day line function management I report to the Minister of Justice.
POM And that's the way it's going to stay?
BN That's what it is now and that's what has been agreed it should remain.
POM What struck me is that it would be a bad precedent to start concentrating security powers within the President's Office rather than with the ministers. It wouldn't be enhancing democracy, it would be counter to it.
BN The difficulty here is because we have the troika principle, being that the prosecution, intelligence and investigation must be together under one roof. Now you have three ministers who are affected, Intelligence, Safety & Security and Justice, all of them are affected here. So I sort of cut across all those departments. It's critical that Intelligence must be involved, Safety & Security be involved. So it was agreed that because you want to elevate the position of this unit, you don't want to by-pass other ministers, now at some stage there is going to be a clash, one minister is going to say, the Minister of Safety & Security's interests are more towards protecting his own jurisdiction, the police, the Intelligence is after protecting the Intelligence, and you will find therefore that I am going to be engaged in this ongoing struggle with them. But because you want to focus on ensuring that we are able to carry out our operations it's good that we have the President then who is able to mediate those turfs. This how the thing was conceived and so far it's working very well. So I don't report directly to the President, I do it through his ministers.
POM Going back to organised crime, that's targeted as being a more serious threat to the state than, say, domestic crime, crime in the home (which accounts for 30% of all crime). What I am getting at is how do you weigh priorities? One is about money and huge trades of drugs and things like drug trading and arms dealing and things like that, the other is about people stabbing, abusing, shooting themselves or whatever in domestic situations. How do you balance? Maybe I'll give you two cases. One is this case, I don't know if it's crossed your desk or ever will, the case of the men who raped the 12 year old who died of AIDS before her case came to court and therefore the case was dismissed because there was no complainant, which has outraged everybody. The other one is the case of a women, she was released on bail last week, but she was six and a half years in jail before she got bail. The SA constitution guarantees you a speedy trial. Six and a half years can't be under any circumstances construed as a speedy trial.
BN That case is an exception to the norm. When I came in in 1998 Julia Machele(?) had been in prison then for five years and I said, "Julia Machele must go, must be released." The people said, "Sir, we would like you to study the case first." Then I did in fact do that, I realised that, no, it's not just one of those cases. One of the problems is that she herself was responsible for the case having dragged on for so long. It's a very involved case, one of these car-jackings, these heists, and the state will be ready to proceed to trial but the defence would not be ready and when they are ready they would fire - I don't know how many teams of lawyers they have fired get another team of lawyers, another one now. That's what has been going on in the court. So it's not just been the state that has failed to prosecute the case. The state has been ready to prosecute but she also has been to blame for that.
Now the question of balancing, how do you maintain a fine balance of those things? I've set up a special unit in my office to investigate these serious crimes against women and children, but not necessarily to investigate those cases but ideally to ensure that we lead the campaign against violence, violence against women and we make sure that those cases are prosecuted effectively and efficiently. In this regard we are in the process of setting up a number of special courts. We started last week. I was in East London on Thursday, we set up a High Court, the first High Court in the country in the township.
POM I saw a picture of that, yes.
BN We set it up in Mtunzini and that court is not doing just any case, it's only dealing with rape cases. We want to deal with the backlog, we want to deal with these cases effectively and efficiently, speedily. In the process we hope that we will be able to get maximum sentences, number one, and that we will use that area of Mtunzini as a model for people to see that we really mean business when we say no violence against women.
POM Why do you think that violence against women, particularly rape and gang rape in particular, is so high in SA? Now I know the President sparked a whole debate when he said some figures have been saying rape every 26 seconds and in fact there is no objective evidence to support that.
BN Of course there's none.
POM But on the other hand rape is occurring frequently and it's from two year olds to grannies who are 114, in all kinds of circumstances.
BN I don't know. I agree with you, Padraig.
POM What is it?
BN The figures are not, there are no figures, we don't know what the true state is. We also don't know why this is the case. We don't know. I've commissioned a study. I have commissioned a study to say but why is this thing happening? Why is it that we are witnessing this thing? Could it be that the men don't know how to deal with this question of the liberation of women, this question of the equality between the genders, gender equality? Women are setting themselves up and men don't know how to deal with it and therefore they react violently. Is that the reason? Has it got anything to do with poverty? Has it got to do with this breakdown of the moral fibre of our society?
POM Of the families, the whole family structure.
BN But why does it come up now? Why not during the apartheid system? Why now when we are rebuilding this country starting from scratch? Is it people with the transformation? I don't know. As I say, we have commissioned a study, it's bothering me.
POM They were all the questions I was going to ask you. Thank you.
BN Thank you very much. Excellent. I was worried about time.
POM No, no, just on that area.
BN No I'm worried about time, I have to leave.
POM OK. Just one or two before you go. When might that study be available?
BN It should be ready around June next year.
POM I'll be one of the first people around for a copy, I'll be camping out the night before. Just one or two others, I know that you must have all kinds of other things. Of all crime how much is committed by organised crime, syndicates, what proportion?
BN What proportion of crime is committed by it? It's very difficult at this stage to say because if you talk about the car hijackings people hijack these cars because they have a market for it. We have now come into one area where we arrested one fellow and when we searched him we found that he already had registration certificates of five other cars that had not yet been stolen. And you might think that you are just dealing with one of these piccanins, you know the South African word 'piccanin', young boys in the street, whereas in fact he's stealing, they are the runners for the big guys. So when it comes to organised crime, drug trafficking in this country is organised crime. Car hijackings are organised crime. The thing which you don't think is organised, break-ins, stealing a TV set here and a few things there but the kinds which are putting SA on the international map are part of organised crime because those are the violent crimes that we are dealing with, those are the crimes that I think are part of organised crime. The majority of it is organised crime.
POM And you're facing a different paradigm just as the world economy has become globalised with a globalised economy, there's now globalised crime and using all sophisticated business methods and IT to do all the stuff.
POM Two, have any of your investigations established that there are still elements of third force trying to destabilise the state in some systematic way or would it just be the odd person here or there who is a former policeman or a former this or a former that in the apartheid regime?
BN No there isn't at this stage, no. There isn't any organised grouping that is trying to destabilise the state, a third force, no. You do find one or two individuals acting on their own but not as part of an organised grouping.
POM Just two to go. Just the Mostert case, it's holding the police up to ridicule. There are going to be more jokes and more
BN They've asked for it. They shouldn't have done it. It was a stupid thing to do. You know what happened Padraig? We received some information that Mostert might somehow be involved with the bombing but because we knew Mostert and we knew that he's an unreliable character
POM Now this is your unit?
POM So you received information?
BN Yes we received the information, we passed it on to the police and we said, "Check this out when you're investigating but know that this fellow is unreliable." And the police said, "Fine, thank you." The investigators went on and they were digging and checking and then some fool he heard this information, he heard that our guys were looking for Mostert and then he bumped into the police, the police who were driving him out of Cape Town, he bumped into them and they told him. They know each other, they told him, "Look, you guys you must look out for this Mostert, we think that somehow he was involved", and this fellow rushed to the office and issued an identikit and once you issue that indentikit you give the impression to the country that you've solved the problem. He should never have issued that identikit and from that moment onwards it just became a series of blunders one after the other, releasing one statement and contradicting each other afterwards. They've called for it, absolutely. It's annoying.
POM Is this not a case, and this is what I find often peculiar here, in other countries there would be, as I assume there would be here, an internal investigation but heads would roll, somebody would be fired.
BN Of course.
POM But no-one when they screw up on the job here are fired because they screw up. You know what I mean?
BN No, the difficulty is this, the Commissioner has 20 days to go and the other one is not yet in, it's the transition which is messing up. If that fellow was in my unit I would have fired him long ago. I'm telling you he would be gone by now but he's not in my unit, he's with the police.
POM Do you think, again, as part of police transformation that the public must see that when police, senior police in particular, or any policeman screws up in a way that damages the public interest that he's fired. It's not a matter of saying we've got to have 19 consultative hearings on your redeployment, you're fired, go find another job.
BN He's got to be fired, has to be fired.
POM Last question for just this time round, why do you think the white right collapsed so thoroughly and completely. In the early nineties there was this great fear of the white right and how it was armed and elections, bingo, it just collapses?
BN There are two things. One was the policy that was adopted by the government of reconciliation and reconstruction and secondly it was the initiative that was taken by the then Deputy President who engaged them directly. He spoke to the leadership of the right wing and engaged them in the discussions throughout the process. The more he was talking to them the more we were having the opportunity to stabilise the country and they began to see that it was in their interests to co-operate rather than to destroy.
POM This is Deputy President Mbeki?
BN Yes, he kept them talking. Whilst the President was preaching reconciliation he quietly spoke to them day in day out and engaged them in the discussions and kept an open door, which he still does even now. So as soon as he had the leadership while the Afrikaner right wing were talking to him and began to deliver on some of those things which were of concern to him, but most of the problems that they had were purely perceptions, they just didn't know. They were scared it wasn't security, about what was going to happen. So the more he was talking to them the more they were seeing that in fact they are benefiting and you must accept that the beneficiaries of this democratisation initially were the white people. They benefited more than anybody else. There were the ones who have the money to travel abroad, spend their holidays abroad. They were the ones who have been participating in sport in the country, they were selected into the white teams and everything. So they have enjoyed these openings more than the black people have. It's only now that that thing is beginning to trickle down where you are seeing the benefits of this thing trickling down to the black people. But initially the people who benefited immediately after the elections and all those things have been the white people.
POM OK, finished the questions.