WITNESS PROTECTION PROGRAMMES – SOME LESSONS FROM THE SOUTH AFRICAN EXPERIENC

The various Witness Protection Programmes in South Africa (for more detail on the background to South African Witness Protection Programmes see Spek 1998) have essentially not inspired enough confidence in witnesses to make use of them. Relatively speaking, witness protection is still in its infancy in South Africa though considerable progress has been made since the first attempts in the late 1980s and early 1990s to set up better and more effective programmes. Until 1992 a witness who was in need of protection was kept in the same conditions as awaiting-trial prisoners. The witness was held in protective custody in either a police or a prison cell (s 185A of the Criminal Procedure Act of 1977).1 This was not conducive to anonymity and a prison grapevine would very quickly spread word of such a witness’s identity. This protection, provided for by the Criminal Procedure Act, was not voluntary and it was up to each regional or provincial Attorney-General to make the final decision whether a witness was in need of protection or qualified to be taken up in this system of protective custody. Moreover, the witness was held incommunicado, which meant that he or she could only see a legal representative with the permission of the Attorney-General (Lawyers for Human Rights (LHR) 1992: 20). There were a number of shortcomings in the above system of witness protection, namely: The system was not voluntary since the witness was placed in custody without taking into account his or her wishes on the matter; there was therefore a degree of coercion as a witness was forced to give evidence in this manner; furthermore, once a judge’s detention order was made, no court could question it; and finally, the detention was like a jail sentence with the witness being held incommunicado and not entitled to access to a legal representative (LHR 1992: 20). In 1991 changes to section 185A of the Criminal Procedure Act were made which allowed for witnesses to be visited daily in order to have their psychological and physical needs attended to (access to doctors, lawyers and to visitors with approval). In addition, a further important improvement was that complaints had to be attended to (section 185A(5)).2 Furthermore, and most importantly, the changes now allowed for a witness to apply to a police station or prison to be detained or to be placed under protective custody if such witness believed that his/her safety or the safety of a family or household member was in danger. This removed the major coercive feature of the old section in the Act. However, no specialised training was given to those administering the state witness protection programme and it remained inadequate in providing comprehensively for those in need of protection (Newham 1995: 7). Furthermore, witnesses still dealt directly with the police. However, in the early 1990s witnesses had little trust in the police, and as a result of the problem at the time concerning police credibility3 , many witnesses were reluctant to enter protective police custody. In response to this situation an independent programme was created by the NGO, Lawyers for Human Rights (LHR), Acta Criminologica 15(3) 2002 119 who set up their own witness protection programme in May 1992. They had realised that there was a need for an independent witness protection programme. They began by offering witnesses access to safe places or houses and making this known publicly and through the network of law clinics countrywide. LHR, however, made a distinction, i.e. with regard to the level of protection and safekeeping offered, between people on the basis of whether the particular person was only in possession of hearsay evidence, or was an eyewitness, a perpetrator turned state witness or an informer in a life-threatening situation. However, there were no other special guidelines or conditions for acceptance of a person onto the LHR programme. Each case would be reviewed separately. If accepted onto the LHR programme, a witness would be placed either in a hotel or with a support family if possible. At the time LHR received a good deal of assistance and help from other organisations like church groups and activist human rights organisations like Peace Action. Unfortunately the LHR programme suffered from inadequate financial support, had no long-term plan, while the LHR members running the programme never received any proper training or professional assistance in witness protection (LHR 1992: 28; Spek 1998: 4). Other problems encountered by the LHR programme included the following: ¾ The initial use of hotel accommodation for witnesses proved to be a costly exercise, especially if families of witnesses also applied for protection. ¾ Ensuring proper security posed serious problems. ¾ Witnesses were often conspicuous because of their clothing, youthfulness or demeanour. ¾ No resources were available for the provision of social welfare, therapy and counselling services (LHR 1992: 26-27). One of the most problematic aspects of the LHR programme was the contentious issue of relocation. Many witnesses were extremely reluctant to relocate in areas away from their home, town or area of residence (LHR 1992: 27). With the high levels of political violence in the early 1990s new legislation was passed which inter alia made provision for other conditions for a witness to receive protection. This legislation, The Prevention of Public Violence and Intimidation Act 139 of 1991, which set up the so-called Goldstone Commission under the chairmanship of Judge Richard Goldstone, allowed for a witness to voluntarily withdraw from the programme. The Commission initially d