FROM OUTLAW TO SHERIFF

Willie Hofmeyr

Background

When does a human rights lawyer who has become an expert in frustrating
the operation of the criminal justice system become a legislator committed to
passing laws tough enough to frustrate lawbreakers and close legal
loopholes? And then, as if this volte-face were not enough, join the
prosecution services to take up the fight against violence and criminality?

The irony will not be lost on my readers nor, indeed, on myself. As a young
activist, I studied law with the sole purpose of using it to fight the state by
defending those who fell foul of the harsh laws of the apartheid system.

In the ensuing years, I was arrested some 20 or 30 times for various illegal
activities, but never prosecuted successfully. As a serial law-breaker, I learnt
how ineffective the justice system was against those with good lawyers. My
aim was, of course, like that of many others, to frustrate and defeat apartheid
and usher in an era of justice, democracy and human rights.

And that was, almost miraculously, exactly what we achieved. "Ready to

Govern!" we proclaimed, and in some ways we were prepared. OR Tambo,
Albie Sachs and Kader Asmal, sitting in Kaders kitchen in Dublin in the late
1980s, had already started the process of drawing up a Bill of Rights for South
Africa. The result of their visionary effort formed an important part of the Bill of
Rights ultimately adopted in the Interim Constitution that preceded the first
democratic elections and the inauguration of President Nelson Mandela.

It was a euphoric time. With my peers, I lined up to take my oath in parliament

and took my seat on the Justice Committee. We had one of the most
principled bills of rights in the world. We felt proud. We felt squeaky clean and
new.

The 1996 constitution

It was in late 1994 that I received a call from Cyril Ramaphosa asking me to
become part of the small ANC team coordinating the all-party negotiations for
the final Constitution, including the Bill of Rights.

I remember sleeping very little in the period that followed. None of us did. We
had a year and a half to resolve the differences between parties on issues
that would determine the future of our country. And some of those issues
were fundamental: the death penalty; the right to abortion, to strike and to
lockout; as well as property rights.

There were some lighter moments. Becoming known as a member of the

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negotiating team got me into some strange situations. One of these involved
being lobbied on the subject of including animal rights in the Bill of Rights.
Wanting to be nice, I agreed to attend a braai (not of meat to be sure, but
soya sausage). Entering a house in the suburbs, I was startled to be greeted
by a large black and white pig, which was in the kitchen with my hosts,
feasting on the scraps from the table. In the sitting room were some 40 or so
cats that had clearly been rescued from dire circumstances. I learnt that my
big-hearted animal-rights friends had saved the cats from being put down. On
another occasion, I was asked to find ways in which to deal with the Illuminati,
who were greatly troubling one of my constituents.

Criminal justice rights

It soon emerged that we were unprepared for the very real challenges that
faced us in fighting crime and ensuring the safety of our citizens. The Interim
Constitution made it difficult for us to deal properly with the endemic wave of
crime and violence that had begun in the 1980s and began to take on a new,
sinister face both in the run-up to and after the elections.

We had inherited a police force that was on the whole poorly trained, and
accustomed to achieving its ends by obtaining confessions. Contrary to our
expectations, the police, prosecutors, magistrates and judges feared
contravening the new rights contained in the Interim Constitution, and many
leaned over backwards to avoid being seen as enforcing the injustices of the
past. Bail was granted even in very serious cases, sentences were frequently
too light, and many were acquitted because of minor irregularities. The
number of convictions dropped by almost half in four years.

We had opened not only our hearts but also our borders, and together with
the rejoicing tourists visiting the new South Africa came international
gangsters and smugglers, drug dealers and cyber criminals all exploiting the
loopholes that now existed and slipping through our borders.

While the Constitution was being negotiated, I also served on the Justice
Committee, where we became acutely aware of the need to strike a better
balance between the rights of criminals and the safety of law-abiding citizens.
It was clear that we needed to promulgate tougher laws and to close some of
the loopholes. We started working on laws dealing with bail and minimum
sentences, as well as new legislation dealing with organised crime as well as
removing the profits of crime and ensuring that crime would not pay.

There was certainly great irony in this human rights lawyer becoming a tough
law enforcer who argued for curtailing certain rights, while many who served
under apartheid were now advocating enhanced rights to protect them against
the new state.

Section 35: The rights of arrested, detained and accused persons

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It was especially crucial that this balance be struck in section 35. Curiously
but understandably, in the new post-apartheid South Africa, most of the
opposition parties were wary of a new government abusing its powers as had
happened in the past, and defended very strong rights for anyone accused of
a crime.

Thus initially most parties favoured an approach approximating the American

doctrine of the fruit of the poisoned tree, namely that evidence obtained
against an accused in violation of the Bill of Rights may not be used in a court
of law. The ANC argued for a more nuanced approach.

In the end, and after considerable debate, the negotiated compromise

achieved a good balance in my opinion, namely that:

"(5) Evidence obtained in a manner that violates any right in the Bill of
Rights must be excluded if the admission of that evidence would
render the trial unfair or otherwise be detrimental to the administration
of justice."

Thus evidence obtained unlawfully is not excluded automatically. It is only

excluded if it would render the trial unfair - not if it may or could do so. Thus
infringements that are purely technical are not likely to be excluded.

The limitations clause

Another related and important debate was on how to deal with possible
limitations of rights. It was agreed fairly early on that it was too complicated to
specify each possible limitation. We opted for the Canadian approach of a
general limitation clause with specific criteria that would enable the courts to
decide whether a specific limitation was justified or not.

Access to information and just administrative action

The rights to access to information (section 32) and just administrative action
(section 33) proved to be vitally important to sustain our vibrant democracy.
They provided as follows:

[s32] Access to information

(1) Everyone has the right of access to

(a) any information held by the state; and
(b) any information that is held by another person and that is required for
the exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right, and may
provide for reasonable measures to alleviate the administrative and
financial burden on the state.

[s33] Just administrative action

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(1) Everyone has the right to administrative action that is lawful, reasonable
and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and
must
(a) provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections
(1) and (2); and
(c) promote an efficient administration.

These rights constituted an important and novel innovation in the new

Constitution, and could probably be counted among some of the most
advanced rights of their kind in any constitution in the world at the time,
although modern democracies in Europe and elsewhere had fought hard for
such rights.

After years of the almost obsessive secrecy of the apartheid regime, these
rights were seen as essential to transparent and participatory governance,
and as critical tools to meet any challenge brought by law and civil society.
Civil society, working through a coalition of non-governmental organisations
(NGOs), played an extensive and influential role in helping Members of
Parliament draft the final legislation.

The Promotion of Access to Information Act (PAIA) and the Promotion of

Administrative Justice Act (PAJA) were later passed to give effect to these
rights. The rights and the Acts are therefore interlinked. Those who wish to
challenge administrative decisions by the state may do so in terms of PAJA,
and are able to obtain the information required to do so through PAIA.

At the time, in 1995/96, we had some concerns that the public service lacked
the capacity to meet the burden of these commitments. Barely computerised
and emerging extremely slowly from a legacy of secrecy and introversion, the
public service was forced to develop the wherewithal to respond to the
essential requirement that government be open and accountable. A qualified
right of access to information was also established with respect to private
bodies and individuals.

The biggest impact of PAJA has been to broaden the legal grounds on which
civil society can challenge decisions or actions by the state. Such challenges
are very difficult without access to the information and documents relating to
the decisions that are held by the state, and these could now be obtained in
terms of PAIA.

Although due to the optimism and idealism that prevailed at the time the
importance of these provisions were not fully recognised, they have proved to

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be vital instruments for an active and vibrant civil society to hold the executive
to account and to prevent or reverse the abuse of power.

An early challenge in terms of the legislation was brought by the Khulumani

Victims of Torture Support Group. Consisting of victims of torture under
apartheid, this group had given evidence at the hearings of the Truth and
Reconciliation Commission and sought information on government policy on
making reparations. In the face of government's silence, they eventually
approached the High Court to compel the Department of Justice and the
Presidency to release the document.

Many other cases followed. The most significant of these was the challenge to
release documents relating to the arms procurement deal, which also ended
up in the High Court. Another challenge related to the failure of the
Department of Justice to release some of the documentation of the Truth and
Reconciliation Commission, despite TRC legislation providing that all such
documents should be placed in the archives for public consumption.

Such challenges have increased over time, and these laws now play a vital
role in holding the state to account. Some of the most important cases that
have been litigated include:

PAIA: Eskom1, Mail and Guardian2, Unitas3, Brummer4, and IDASA5.

PAJA: Bato Star6, Tantoush7, AllPay8, Save the Vaal Environment9, and

1
BHPBillitonPLCIncandAnothervDeLangeandOthers(189/2012)[2013]ZASCA11;2013(3)SA
571(SCA);[2013]2AllSA523(SCA)(15March2013),
http://www.saflii.org/za/cases/ZASCA/2013/11.html(lastvisitedNov16,2016).
2
PresidentoftheRepublicofSouthAfricaandOthersvM&GMediaLtd(CCT03/11)[2011]ZACC32;
2012(2)BCLR181(CC);2012(2)SA50(CC)(29November2011),
http://www.saflii.org/za/cases/ZACC/2011/32.html(lastvisitedSep8,2014).
3
VanWykvUnitasHospitalandAnother(CCT12/07)[2007]ZACC24;2008(2)SA472(CC);2008(4)
BCLR442(CC)(6December2007),http://www.saflii.org/za/cases/ZACC/2007/24.html(lastvisited
Nov16,2016)
4
BrmmervMinisterforSocialDevelopmentandOthers(CCT25/09)[2009]ZACC21;2009(6)SA
323(CC);2009(11)BCLR1075(CC)(13August2009),,
http://www.saflii.org/za/cases/ZACC/2009/21.html(lastvisitedNov16,2016).
5
InstituteforDemocracyinSouthAfricaandOthersvAfricanNationalCongressandOthers(9828/03)
[2005]ZAWCHC30;2005(5)SA39(C)[2005]3AllSA45(C)(20April2005),,
http://www.saflii.org/za/cases/ZAWCHC/2005/30.html(lastvisitedNov16,2016).
6
BatoStarFishing(Pty)LtdvMinisterofEnvironmentalAffairsandTourismandOthers(CCT27/03)
[2004]ZACC15;2004(4)SA490(CC);2004(7)BCLR687(CC)(12March2004),,
http://www.saflii.org/za/cases/ZACC/2004/15.html(lastvisitedNov16,2016).
7
KoyabeandOthersvMinisterforHomeAffairsandOthers(CCT53/08)[2009]ZACC23;2009(12)
BCLR1192(CC);2010(4)SA327(CC)(25August2009),,
http://www.saflii.org/za/cases/ZACC/2009/23.html(lastvisitedNov16,2016).
8
AllPayConsolidatedInvestmentHoldings(Pty)LtdandOthersvChiefExecutiveOfficeroftheSouth
AfricanSocialSecurityAgencyandOthers,2013ZACC42(2013),
http://www.constitutionalcourt.org.za/site/allp.htm(lastvisitedDec5,2013).
9
Director:MineralDevelopment,GautengRegionandAnothervSavetheVaalEnvironmentand
Others(133/98)[1999]ZASCA9;[1999]2AllSA381(A)(12March1999),,http://www.saflii.org/cgi
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 Brenco10.

The negotiating process

It was all hands on deck during the difficult and often contentious negotiations
that took place in the Old Assembly Chamber. In the process, I gained
valuable experience in negotiating. Cyril Ramaphosa, of course, was an
experienced negotiator. As General Secretary of the National Union of Mine
Workers, he was feared and ultimately respected for his tough negotiating
style on behalf of mine workers. As chief negotiator on the Interim Constitution,
he helped lead the country to the first democratic elections.

He was also a fine role model. Tough, optimistic, brilliant, he had set a fine
example in building a productive relationship of trust with Roelf Meyer, head
of the National Party negotiating team, and other negotiators.

And that, in the thorny months that followed, was what we had to do: talk to
the enemy, eat with the enemy and drink with the enemy, until suddenly they
were not the enemy any longer, but real people with concerns and positions
that we came to understand. They had their own constituencies as we had
ours. They needed to go back and sell compromises to their people, as did we.
Some were friendlier than others, but we were all in it together, driven towards
our deadline by the relentless optimism and determination of Cyril
Ramaphosa.

At the beginning of April 1996, with less than a month to go before the launch
of the Constitution and many difficult issues still to be resolved, Cyril and
Roelf packed us all off to the small fishing village of Arniston. This became the
famous Arniston bosberaad, away from the eyes of the media, lobbyists and
other distractions.

As Cyril Madlala put it in a fine article describing the process: "There are
moments when, for it to happen at all, it has to happen in the dark where the
blushing cannot be seen." It was a week of more sleepless nights, long
sessions at the bar and talks, talks, talks. "You've got to get to grips with the
outstanding issues and finalise them," said Ramaphosa. "The eyes of the
nation are on us but also we've got to do this for ourselves."

We finally launched the Constitution with its new Bill of Rights. We did not get
everything we wanted, but we got most of it. In the following year, Bulelani
Ngcuka, head of the new National Prosecuting Authority, invited me to join
him as his deputy and set up the Asset Forfeiture Unit based on legislation I
had helped drive through the Parliamentary Justice Committee. Its aim was to

bin/disp.pl?file=za/cases/ZASCA/1999/9.html&query=%20save%20the%20vaal(lastvisitedNov17,
2016).
10
Chairman:BoardOnTariffsandTradeandOthersvBrencoIncorporatedandOthers(285/99)
[2001]ZASCA67(25May2001),,http://www.saflii.org/cgi
bin/disp.pl?file=za/cases/ZASCA/2001/67.html&query=%20brenco(lastvisitedNov17,2016).
6
confiscate the proceeds of crime from criminals and in so doing to curtail their
activities severely.

Being part of the months of debate and negotiations was one of the highlights
of my career, and it remains one of the most significant periods of my life.

Not only did I learn much about constitutions, but I gained invaluable
experience in negotiating and learned a huge amount from Cyril Ramaphosa,
a master of the art of negotiation.

And now we had, under Ramaphosa's leadership, taken South Africa to the
next stage. We now had a constitutional democracy that was hailed and
respected throughout the world and would take us forward into the new era.