Tim Mcnally: Attorney-general who let Magnus Malan walk free
1938-2013
TIM McNally, who has died in Pietermaritzburg at the age of 74, was the attorneygeneral of Kwazulu-Natal who let former defence minister Magnus Malan and 19 former South African Defence Force (SADF) generals off the hook in 1996.
Malan and the generals were charged with murder in connection with the killing in 1987 of 13 people at the home of a United Democratic Front (UDF) activist in KwaMakutha, south of Durban, by an Inkatha hit squad armed and trained by the SADF.
SADF special forces trained more than 200 Inkatha loyalists in the Caprivi Strip in Namibia to operate as hit squads against UDF and ANC supporters in KwaZulu-Natal after Inkatha leader Mangosuthu Buthelezi asked the government in 1985 for help in creating a paramilitary force to use against his opponents.
In spite of documentary evidence linking Malan and the generals (and, indeed, Buthelezi himself, who was never charged) to the killings, they were acquitted.
It was the first and, as it happened, only opportunity to hold senior politicians and generals accountable for crimes committed under apartheid.
Their acquittal removed any incentive they — or other senior politicians and top security force officers who were waiting anxiously for the outcome of the case — might have had to apply for amnesty to the Truth and Reconciliation Commission and, in the process, shed light on other crimes committed under apartheid and, crucially, who gave the orders.
McNally’s failures during the prosecution were so egregious that even Judge Jan Hugo remarked on them.
The most generous explanation of his performance was that McNally, who described himself as the “most experienced” attorney-general in the country, had simply bungled what was perhaps the most important criminal trial in South African history. He was, in the words of the investigation task board, which oversaw the investigation and its presentation to him, “monumentally incompetent”.
However, an analysis of the evidence that he had at his disposal left little doubt in the minds of legal experts, including the board, that McNally had deliberately sabotaged the state’s case.
Documents seized from military intelligence linked Malan, the generals and Buthelezi directly to Operation Marion, the name given to the SADF project to train Inkatha hit squads. It linked them so directly that Hugo asked McNally how he absolved Buthelezi from the “conspiracy” to murder opponents of Inkatha.
McNally’s analysis of the available documentary evidence for the benefit of the court was so selective that it left out the bits that would have nailed Malan and the generals.
His team warned him that he had not done enough to persuade the court that the accused were linked to the massacre. They supplied him with lines of cross-examination to remedy this. He ignored them.
He failed to call key state witnesses, including the commander of the Inkatha hit squads, Daluxolo Luthuli, and SADF Colonel Mike van den Berg, who met with Buthelezi several times and was the author of the most incriminating documents.
In his judgment, Hugo referred to this failure as inexplicable.
McNally failed to raise with witnesses the issue of whether the accused should have foreseen the possibility of murders arising from the creation of Operation Marion. This, in the view of his support team, would have been the state’s strongest argument linking Malan and the generals to the massacre. The judge remarked on this failure too.
McNally was felt to have ended his cross- examination of Malan and closed the state’s case prematurely.
His support team had prepared material to help him place on record in his closing argument a coherent analysis of the evidence against Malan and the generals. They were dismayed when he refused to use it.
Years later, McNally blamed the acquittal on an Afrikaner judge who could not bring himself to convict a fellow Afrikaner as legendary as Malan.
Even before this trial, McNally stood accused of being reluctant to uncover the truth behind hit squads and third-force activity.
A serious rift opened up between him and the investigative task unit, which believed that their reports recommending the prosecution of Inkatha and Kwazulu police officials were being ignored.
When former police hit squad commander Dirk Coetzee and hit squad member Almond Nofomela blew the whistle on police death squads in the late 1980s, McNally, then attorney-general of the Free State, led a commission of inquiry that rubbished their allegations.
Later, he controversially accepted an assignment to lead evidence at a judicial commission of inquiry presided over by Judge Louis Harms that, not surprisingly, came to the same conclusion.
Amnesty International, among others, said he should have recused himself because he could not possibly be impartial, having already decided that the allegations of police hit squads were false.
Lawyers for Human Rights said he had “undeniably defended the wicket of the government of the day”.
His appointment as attorney-general of KwaZulu-Natal in 1993 was regarded in some quarters as his reward.
The Legal Resources Centre in Durban built a detailed case against him, and in 1995 he appeared before the parliamentary justice committee to explain his perceived failure to prosecute Inkatha officials involved in violence.
Coetzee called him a “sweeper” for the security forces. Eight years after rubbishing Coetzee’s claims of a police death squad, he decided to prosecute Coetzee for the murder of ANC lawyer Griffiths Mxenge.
It was felt that instead of prosecuting Coetzee for a crime he had already confessed to, McNally should have used him as a state witness to get at the more senior officials who had ordered the killing.
Although then-president FW de Klerk had appointed McNally attorney-general for life, national director of public prosecutions Bulelani Ngcuka said he had “completely lost his credibility” and offered him a post as special director of public prosecutions, accountable to him.
Offended by this, McNally, who reacted to criticism with a mixture of arrogance and self-pity, took early retirement in 1998 and devoted himself to charity work. A committed Roman Catholic, he was awarded a papal medal in 2012, the highest recognition the church can bestow on a layman.
McNally was born on November 28 1938 in Faizabad in India, the son of a British army doctor. The family came to South Africa in 1946. He attended St Aidan’s school in Grahamstown, completed his BA LLB studying part time and became a senior counsel in 1974.
He died of colon cancer and is survived by his wife, Jill, and three daughters. — Chris Barron
He failed to call key state witnesses such as the commander of the Inkatha hit squads