State witnesses play a key role in the South African legal process. They are used to lend respectability to the regime's repression of resistance by means of the law. Recent trials in which state witnesses have refused to cooperate highlight one aspect of the struggle in the courts between apartheid and its opponents.
This review covers the period since the beginning of 1982.
For as long as South Africa has been holding political trials the state has found difficulty in persuading people to testify against defendants. Since 1965 provision has been made to partially solve this by physically detaining witnesses in police custody. At present, Section 31 of the Internal Security Act (74 of 1982) allows potential witnesses to be detained for the duration of a trial provided only that charges have been laid within six months of the date of detention. This can be a lengthy period when some trials last for months, if not years. Two current trials (MPETHA AND OTHERS, MOTLHABAKWE AND OTHERS) which began in 1981 have lasted for over two years.
In fact, the period may be extended even further. It is common for people to be detained for interrogation and only transferred to the potential witness clause when a trial is imminent.
For example, on 28 May 1982 Mampe Cynthia NTSHINGWA, a 16 year old school student, was detained. After almost six months in custody, she was re-detained under Section 31 in connection with the trial of THLOLOE AND OTHERS. She was eventually released on 20 April 1983 after almost a year's detention and without having been called as a witness.
In another case 15 schoolchildren continued to be detained even though the prosecution in the trial for which they were being held had closed its case and therefore could not call them (see FOCUS 42 p.4).
The official figures for detained witnesses are inadequate insofar as they do not take account of such practices (see Box).
Government assertions that the primary purpose of such detention is to protect witnesses are contradicted by the conditions in which detainees are held. Evidence in court indicates there is little difference between the treatment of potential witnesses and potential defendants. Both are kept in solitary confinement, deprived of legal advice and interrogated, often brutally, to obtain statements which can later be used in court. Dean Simon FARISANI suffered torture in the Venda bantustan while detained as a potential witness (FOCUS 39 p.9, 42 p.5).
Initially the state itself may not have decided who is to be in the witness box and who in the dock. Even once the decision has been made the detainees may be kept in ignorance of their true status, as a further method of coercion. Likewise, defendants may be deluded into believing they are to be state witnesses to extract incriminating statements from them. Some state witnesses deny even knowing the accused. Others are 'warned' as accomplices. They know that if they testify satisfactorily they will be granted indemnity from prosecution.
Prolonged solitary confinement induces a relationship of dependency in detainees whose only human contact is with their jailers. Potential state witnesses are 'rewarded' for their statements — one schoolgirl was brought chocolates and taken to a barbecue. However, if they waver in a decision to testify, such privileges are replaced by assault and torture.
Considerable doubts have been cast by psychiatrists and others on the validity of statements made after long periods spent in solitary confinement. Most of this material refers to statements made by defendants but is equally applicable to state witnesses. People in solitary confinement become disoriented and depressed and will say almost anything which is suggested to them. Witnesses have admitted becoming confused after long periods in detention.
ISOLATION
The policy of isolating the witness is sustained even once the court is in session. The evidence of most state witnesses is heard in camera. The public gallery is cleared and the press is told not to report anything which would reveal the identity of the witness. In extreme cases neither may the nature of the evidence be reported. This secrecy is said by the state to be at the request and for the protection of the witnesses. However, people detained as witnesses are known to their immediate community, and will have to return there at the end of the trial. Its purpose must be to intensify the pressure on the witness to give the desired evidence. State witnesses called in the trial of NONDULA AND MSANA specifically contradicted the evidence of the security police by denying they had ever requested in camera proceedings.
Further doubts are cast on the quality of the witnesses' evidence because of the frequent allegations in court of undue influence exerted by the security police. Witnesses allege that they have been told what to say and the police are present in court while evidence is given. Afterwards many return to detention cells. Perhaps the most blatant example of the influence of the Security Police extending into the courtroom arose in the trial of MOTLHABAKWE AND OTHERS. A former detainee who had been held for almost 18 months but was never called by the state, testified for the defence. He told the court of a Christmas Eve barbecue hosted by the security police. Guests included four witnesses who had already testified, two prospective witnesses, the head of the Kimberley security police and the chief state counsel in the trial. The witness was subsequently charged with perjury.
Certain recent court rulings have questioned the reliability of state witnesses' evidence. However, in many more cases such evidence is accepted and leads to convictions. The trial of RADEBE AND OTHERS ended in Kempton Park in April with the acquittal of the four accused. The magistrate found that the security police had forced state witnesses to give false evidence. One witness was rebuked in court when he admitted having been taught his evidence by the police.
During 1982 two Robben Island prisoners won an appeal two years after conviction on the grounds that the evidence against them was tainted, suspect and unreliable. Thirteen state witnesses had testified that their statements had been procured by threats of assault and indefinite detention (see MTHEMBU AND SIBISI).
RESISTANCE
Resistance by state witnesses to security police pressure is not a new phenomenon in political trials. However, the frequency with which people refused to testify and the number of witnesses involved was very marked in the period under review. The state deals with recalcitrant witnesses in two ways. If they refuse to testify they can be charged and face sentences of up to five years. If they do testify but their evidence differs from their earlier statements, they are liable to be charged with perjury. In 15 trials during 1982 and early 1983 at least 41 people refused to testify or were charged with perjury following their evidence.
Three trials in particular focussed attention on state witnesses. In the trial of SEATLHOLO AND LOATE ten witnesses refused to testify, of whom eight are known to have been sentenced to periods of between nine months and five years imprisonment. Two witnesses were also then charged with further political offences. The Pietermaritzburg Treason Trial in 1982 was another case in which a number of witnesses rebelled (see Box).
At a trial in the Ciskei bantustan in September 1982 the defendants (NONDULA AND MSANA) were acquitted after the State's case collapsed. None of the witnesses would take the oath although some of them affirmed and gave evidence alleging assault and intimidation and denying facts in the statements they had previously made. At least three of the witnesses said they did not know the accused and that they had been assaulted by the police to induce them to make statements.
Figures for imprisoned recalcitrant witnesses may be underestimated. At least one witness was sentenced, undefended, at a court hearing in advance of the trial at which he had refused to testify (see Appeal of Job MOLAHLOE in FOCUS 42 p.3).
