CHAIRPERSON: We welcome you all very warmly to this special hearing on the Judiciary the legal system of our country during the period under review in terms of our founding Act.
You are all particularly warmly welcome and if I do the invidious thing of mentioning a few people you will, I am sure pardon me.
I declare to welcome Franklin Thomas who is the former President of the Ford Foundation and one of the many longstanding friends of our country.
Wayne Fredericks sitting next to him, yes, he is also a longstanding friend, then Prof. Lennox Hinds who will be Professor at Rutgers University and vice president of ... (indistinct) and United Nations representative of the International Association of Democratic Lawyers and Ian Roche who is the CEO of the firm Stephen Hynes & White and Dr. Mary Chelson.
Thank you.
We have a group of young people from Norway who have been visiting the Truth and Reconciliation Commission. I have a specially soft spot for Norway which is my second home, will you Norwegians stand? Yes welcome!
I want to say that we are very deeply appreciative of the splendid submissions which we have had from the Judiciary, representatives of the Judiciary and the legal profession either individually or as associations.
This is probably the most important hearing in a sense after the victim/survivor hearings. You see, in dealing with human rights violations, you are really concerned with justice, law, order, the disposition of power and authority and how these are regulated within conventional paramaters so that they are not abused.
Violations happened within a specific social, political and economic context and law is quite central to how society is ordered and determines the quality, the texture of the society and whether it promotes an environment which is equitable and just, compassionate and caring where persons count or not; whether it is conducive or hostile to possibilities of gross violation of human rights.
Without laws societal existance is virtually impossible for everything degenerates to the chaos of everyone being a law unto himself. In an ideal world the law will approximate as closely as possible to true justice, goodness, virtue, equity, the attributes of the well-ordered society that good law seeks to promote.
Good law thus obliges obedience and the good citizen tautalogically would be the law abiding citizen.
The black experience of the law. Virtually every encounter with the law for blacks in the old dispensation was one calculated to develop in us a contempt, indeed a hatred for the law because every such encounter was virtually was designed to demean, to humiliate to dehumanise the black person since by definition a law you had had no part in its making was not likely to be favourable towards you.
The legislatures in such a situation would have had to be extraordinary paragons of virtue to care too much about the reaction and experience of those to whom they were not accountable. The ultimate sanction of voting them out of office was not available to us and so the laws they passed did not need to be sensitive to black concerns and feelings.
I grew up in Ventersdorp, perish the thought, my father often sent me to buy the Rand Daily Mail in town and on some of these occasions I would frequently see location urchins and that is where we lived, you know, a location. Township was the politically correct speak of a little later. These urchins were scavenging in the rubbish bins of the white primary schools. They would come up with delicious apples and sandwiches that the white children had thrown away because they preferred the packed lunches their mummy’s had prepared for them. Those who could afford to feed themselves were on the government school feeding schemes while those who could not afford it had no such feeding schemes.
It was the worst logic of the grossly unjust political system buttressed by unjust law and of course there was no nonsense about separate but equal. The government spent about ten times as much on a white child for education per annum as it did for a black child. It was blatantly unashamadly separate and unequal.
When later we moved to the Witwatersrand, I witnessed frequently how my father, a school principal, was humiliated to produce his pass. He in fact had something called an exemption, but he had to produce it to prove it. I saw black men everyday handcuffed together because of contravening the Pass Laws and as school boys we ran the gauntlet of zealous policemen in their pick-ups on their pass raids.
It didn’t matter whether you were in school uniform or not, you were in for the high jump if you didn’t have the darn paper on you and many of us didn’t know we could run so fast as we tried to elude the police and all of this happened to us because we were black, it didn’t happen to white boys, it didn’t happen to Indian boys, it didn’t happen to coloured boys and we were expected go grow up revering the law, to grow up into law abiding persons when we had had such negative experiences of the law.
Later when I became Dean of Johannesburg, I had first to go to the Pass office to be influxed into the area and my wife’s pass as stamped saying she was allowed in the Johannesburg area as long as she was married to me. It was exquisite, this demeaning of blacks. The official residence of the Dean was in town because all my predecessors had been white. Lea and I decided we would live in Soweto rather than be dehumanised into honourary whites by asking for permission to live in the white town. It was all legal and yet was so utterly iniquitous and how could we be expected to develop respect for laws that were so patently unjust and designed to trample the dignity of people so comprehensively underfoot.
The Honourable Deputy President of the Constitutional Court, Judge Pius Langa, has made a personal submission and I want to quote from this because it is quite intruiging that he and I separately thought to describe a little bit of our experiences. He says.
"My first real encounter with the legal system was as a young work seeker in Durban, a status which lasted the entire twelve months of 1956. It was during that period that I experienced the frustration, indignity and humiliation of being subject to certain of the provisions of the Population Registration Act No. 30 of 1950’s and natives of an Area’s Consolidation Act No. 25 of 1945 as well as other discriminatory legislation of that time. I was affected directly and adversely by these laws and regulations.
I was at the same time witness to their operation on other black people who were similarly placed. The imediate impact on me was severe disillusionment at the unfairness and unjustice of it all. I could never understand why race should have been the determinant of where I should live and where I could work. I was never able to understand why, while still a teenager, I was expected to live at a man’s hostel and needed a permit to stay with my parents in the township. I was too niave to understand how it was that I could not look upon the legal system for fairness and justice, I was of course an impressionable youth, fresh from college and full of idealism, I had believed that my modest education would at least be a platform to build a reasonable life and career, le mond .
In that flash of youth I had thought I could do anything, aspire to anything and that nothing could stop me. I was wrong. My dreams came up against the harsh apartheid realities. The insensitive demeaning and often hostile environment it had created around me, proved to have been crafted too well, it was designed to discourage and humiliate those who like me sought to improve their circumstances and those of their communities.
Those early years for me and for thousands of others in the black community, the legal system failed, not only to protect but also to create a space for the exercise of the freedom to give a lot of our potential to the fullest."
That closes the quotation.
I have not myself suffered as much as others of my black fellow South Africans but I have calculated that I have experienced some of the rigours of forced population removals. I lived in Roodepoort Location. This was raised to the ground to make way for horizons which was for white people.
My mother worked at a Zenzaleni(?) an institute for blind blacks. Zenzaleni became a casualty of the removal legislation. I lived in Sophiatown and Sophiatown gave way to Triomf another white suburb. Mercifully now renamed Sophiatown again and also in what was then called Western Native Township which after we were moved out became Western Coloured Township in apartheid’s obsession with race separation.
It was in . . . (tape faulty), the church we were married in was demolished. Munsieville was reprieved only because of the intervention of Leon Wessels. My wife’s teacher training college, St. Thomas in Village Main, is no more, it too was the casualty of the Group Areas Act. I trained as a priest at St. Peter’s in Rosettenville, it had to close down because of the Group Areas Act.
White South African’s often got angry when we said unjust laws don’t oblige obedience, they made the mistake of thinking that legal and moral right were synonimous. We had laws that made it a crime for a man to sleep with his wife if he was a migrant worker living in a single . . . (tape faulty) and decidedly at odds with God’s law that the creed that what God had joined together no one should put asunder.
I once asked lawyers in Pretoria who were foolhardy enough to invite me to address them, how they could operate within a patently unjust legal system which was collaborating with an evil political dispensation that it subverted the rule of law through discarding the habeus corpus and also by putting the onus on the defendant to prove she was innocent when the hallowed legal cannon was the accused is presumed innocent until the prosecution has proved beyond reasonable doubt that she is guilty.
Why didn’t they boycott court sessions, since the world was being misled into thinking that South Africa respected due process. I posed this question to a judge who spoke movingly on how he had agonised with the moral dilema and I wish he had agreed to appear before the Commission to describe this wrestling with such ethical problems. It would have given us a useful insight and I am deeply distressed that no judge has seen fit to appear before the Commission. They have considered that it is not intrinsically in principle wrong to give an account before the Commission since they have done that in making submissions and many of them spendid submissions, in deep powerful testimonies.
I believe Prof. John Dugard once spoke of how judges were called on to make choices, how they would operate, they have in my view been faced with another important choice and I submit they have made the wrong choice. In this regard they have shown they have not yet changed a mindset that properly belongs to the old dispensation which most of them have castigated so sharply in their submission.
You can understand why we never regarded the police as our friends. When I was Bishop of Johannesburg, we were stopped at a road block near New Canada on our way to Soweto and they wanted to strip search my wife and daughter by the roadside. I protested at this indignity and so they took them to the nearby police station. I thought to myself in my livid anger, if they treated me in this fashion, what were they not doing to so-called ordinary black people.
The police were never regarded as our friends as being there to protect us and that applied as well to the judicial system. The State of Emergency were experienced by us as periods when Security forces were given a licence to treat us like dirt, as of no account, they were indemnified against legal action. In all the delegations I accompanied to seek government, whenever we said anything critical of the police, then the immidiate reaction was that we were maligning them, that if indeed what we complained had happened it was really the action of a few mavericks, the bad eggs.
Dr. Mgojo on one occasion retorted that for blacks it was precisely the opposite. There might just be a few good police officers. Our experience was that by and large they were mostly rotten apples and these were the people who had detainees at their tender mercy, who interrogated them and now it is clear that they could use methods following the Queensbury Rule. No holds were barred.
They extracted confessions through these brutal third degree methods. It is clear from amnesty applications that they perjured themselves frquently as a matter of course and our Courts . . . (indistinct) (tape faulty) difficult (...indistinct) that we had been tortured (...indistinct)..
For most of us it was all a travesty of justice and brought the law into considerable disrepute and it is going to take quite a while to rehabilitate the law, for one of the strategies was to disobey unjust laws and a culture of non-cooperation, non-compliance has developed.
Most of the judges in our view were political appointments because they were believed to be broadly or fundamentally in sympathy with the then government and would hardly call in question. (tape faulty - recording stops)
PROF DYZENHAUS:
MR VALLY: . . . by the Allied forces certain decrees were passed and thereafter Judges were prosecuted. Specifically on one issue for example, for their participation in the creation and implementation of cruelly discriminating legislation which led to abduction, torture and murder and extermination of political opponents in certain ethnic groups, and subsequently with reunification of Germany where certain judges from the old German Democratic Republic were put on trial by the re-united Germany.
On issues like mass removal of people on grounds of race, discrimination on grounds of race which was justified by the legislation where the Courts have legally justified the actions of the government by holding them to be legal in the context of South African law.
Just very briefly, because we have been asked this question a number of times especially in international forum, would there be any basis, sorry I am dragging this out a bit, but the tribunals that were created after Nuremberg, the principals enunciated in these tribunals are now accepted as being international customary law, at that stage they were not. On the basis of international customary law, is there any basis to try judges for enforcing manifestly discriminatory laws in South Africa.
PROF DYZENHAUS: You have raised a range of issues which are far outside of my expertise but I will reply obliquely to your question and that is by referring to the German experience.
In my written submission and I presume these are available, I refer to a book by Inga Muller a serving German judge, which is called, it’s a bad translation of the title "Hitler’s Justice, the Courts of the Third Reich". It is a bad translation of the title because at least a third of the book, as I recall deals with German record after the 2nd World War and one of the things that Muller points out is that the German Judiciary, who mostly kept their jobs after the war, despite having watched the very high ranking members put on trial at Nuremberg, did exactly what they had done during the 3rd Reich, why, because there was no process of accounting either in the very high profile Nuremberg case. And I think that what the Truth and Reconciliation Commission offers judges is as non threatening an atmosphere as is possible to have for a judicial accounting for what they did and I am not sure really whether that is even worth talking about whether judges could be tried. It is much more fruitful I think to look back and ask why they failed in their duty and how they can inform the future.
Perhaps just one other point, I think that judges who worked during the Nazi era had a very different experience than South African judges. In the Nazi era if you bumped up against the authorities you disappeared and your family disappeared. The choices that people had to make, people in positions like judges were truly awful, no South African judge was faced with that choice. Perhaps the worst thing that could happen to a South African judge is that his senior judges might get cross with him and I think we need to know more about how that kind of thing worked and he wouldn’t get promotion but he had a job for life and a very comfortable job and a very comfortable salary, he had all the space to make the right choices and yet most of them failed to make the right choices.
MR VALLY: In your examination of the failings of the previous Judiciary and there have been other submissions in this regard, I say this particularly because a number of the judges who have been newly appointed post our democratic elections have also chosen either not to make submissions or to come here, is there still a prevailing culture which is a hangover from the apartheid era amongst the Judiciary?
PROF DYZENHAUS: I think the only answer to that is time will tell, but I think if one looked at the submissions from the judges that I mentioned earlier, I would worry about a prevailing culture.
If those judges really think that they have nothing to account for, that the Appellate Division has nothing to account for, that the judges, particularly the Transkei, have nothing to account for, then one should be worrying about the kind of judgments that they are going to be delivering in the future.
MR VALLY: Specifically what recommendations would you make bearing in mind that the Truth Commission’s mandate is to make recommendations in its report as to what steps should be taken to prevent the reoccurrence of gross violations of human rights, what recommendations would you make regarding the Judiciary which you think we should incorporate into our report?
PROF DYZENHAUS: I think that in some of the submissions there is already a lot of helpful thoughts about this because the judges by and large seem to be very enthusiastic about an ongoing process of legal education for them in the culture of human rights and it is just a pity that the document that the Truth and Reconciliation Commission will produce will not be as full a document as it would have been in the process of that education had the judges been here to speak to us.
MS SOOKA: Mr Dyzenhaus I think you allude to the fact that there still is a prevalent culture of unaccountability in a sense, particularly from those judges who were part of the old regime and in fact who in the present submission say that they have nothing in fact to feel wrong or to feel guilty about.
Now we do know that we do have a more transparent system of getting new judges into the system, but at the same time there are too few to make the real impact on the Judiciary and if one looks at the present statistics most judges are still male and still white.
Now if one is looking forward to the future, besides the question of education on the question of Human Rights, there is also the question of understanding what the different culture is out there of the majority of the people and they are still too far and too little within the Judiciary, what do you think can be done to get that recognition of a different value system which operates at a different level out there and which belongs to the mores of the people on the ground, how do you think that prevailing attitude can be brought about into the bench so that there is a reflection of the value system of the majority of the people of South Africa?
PROF DYZENHAUS: I am not exactly sure what you mean by the value system of the majority of the people in South Africa, because take for example the case about whether the death penalty is Constitutional, the majority of people in South Africa like the majority of people in most other countries of which I am familiar might well be in favour of the death penalty and I don’t think judges should be deciding whether the death penalty is Constitutional or not in accordance with the values of the majority, they should be looking to the law. And perhaps part of the issue and this is one of the many terrible legacies of apartheid is that it is not just a process of educating the people who hold office, it is a process of educating the majority of people in South Africa when resources are very scarce about what it means to have a country that’s ruled by the rule of law.
And I think Bishop Tutu in his opening address made it very clear to us just what the obstacles are for people who saw the law of justice as also suffering a humiliation to understand why it is that perhaps we need an independent judiciary to uphold values which might not be values that necessarily lead to results that they want but nevertheless are very important values for structuring the whole of the new political order.
MS SOOKA: I think the Bishop also alluded to the perception that there is a huge gap between the judges at the top and the people on the ground and in a sense you, from, certainly from the victims who have appeared before the Commission, there is a sense of wanting that gap to be narrowed. How does one actually do that in the new South Africa?
PROF DYZENHAUS: I thought that was the job of the Truth and Reconciliation Commission. (Laughter)
CHAIRPERSON: Thank you very much I am willing to let those of you who don’t want to wear jackets to take them off because the air-conditioning is not operating well and I don’t think we will think you are in contempt.
MR MALAN: Professor Dyzenhaus, I want to follow up on the question of Ms Sooka; you refer to the death penalty as an example of, when she talked about a value system not being supported by the majority on the ground although death penalty or no death penalty may be both within value system and within - and content within value system, my question really is, having listened to you, are you not saying that the law should be followed, the law is a question of interpretation, should be done on the basis of training of people, education of people to follow a certain line, but aren’t we getting back then to a system or structure of law which again is the law of the minority in a sense for a majority. Isn’t the argument that it is better law?
PROF DYZENHAUS: It’s Human Rights Law.
MR MALAN: It’s Human Rights Law but it is not necessarily supported by the majority, and therefore the Human Rights system must now become the dominant and the powerful and the have all say mindset or value system structuring and governing law as understood?
PROF DYZENHAUS: I think that one would find not very many people in South Africa who would say that they are averse to democracy, that they don’t think that it is right that South Africa should now be an open, transparent democracy in which officials are accountable to the law enacted by the majority and also to the values that are in the Constitution, and when I talk about an independent set of values, those are the values to which I am referring. And I believe that one can make a very good case for saying that most South African’s do subscribe to those values, even when they might disagree about what the content of those values are and even when they might sometimes feel aggrieved that decisions are given by a Constitutional Court that strikes down legislation, that the majority very much wanted to be on the books.
MR MALAN: May I just follow this up with maybe two further questions.
I am not sure that I understand the argument, maybe we are not on the same page, to quote our Chief Executive. If you say that there has to be continued education for judges and generally for the profession on the human rights approach to law, who is to educate, are we saying that they are not representative of value systems and content of the majority? Let me put the question differently.
Wouldn’t one be able to assume that even within a Westminster system, one could apply rule of law and by inference not taking human rights paradigm also covering and accommodating and operating within a human rights frame at the same time?
PROF DYZENHAUS: Yes, of course one can. One can operate in the Westminster system and still be within, let’s call it a Human Rights legal and political culture. But South Africans have chosen a different route, they have chosen to Constitutionalise those values, I think both sets of judges would need the same kind of education.
MR MALAN: Would South Africans then in that argument be able to choose again for a non-Constitutionally supreme system and maybe parliamentary supreme system again in terms of your argument, would that be acceptable?
PROF DYZENHAUS: Of course it would be acceptable, but I suppose what I am interested in is seeing that they choice that has already been made is given a real chance to work.
MR MALAN: And then lastly, if that freedom of choice and also lobbying, arguing for such a position as you have been doing, shouldn’t one also then assume that within parliamentary sovereignty or Westminster system where the rule of law operates in terms also of the principle rule of law it also has it’s rules for suspension of rule of law, shouldn’t one accept some bona fides also, if I accept the paradigm within which you are addressing us, shouldn’t one in judging the past also accept as a given the paradigm within which people operated and make their decisions and choices?
PROF DYZENHAUS: I don’t think it is entirely uncontroversial what the paradigm was and there was certainly enough academics around enough lawyers in practice and enough judges to make that a very contentious issue, but I think that by the time South Africa got to the end of their 1980’s and the beginning of the 1990’s it became absolutely clear what the judicial duty was and judges who acted in dereliction of their duty were operating right outside of any paradigm that judges can legitimately operate in.
MR MALAN: Thank you.
CHAIRPERSON: Thank you very much. Denzil?
MR POTGIETER: Thank you Father. Prof. Dyzenhaus, as has been indicated an issue that was raised by the judges in their submissions to us has a difficulty standing in their way to appear here and to participate in the proceedings is this thing of independence. Now there seems to be some tension between that and the question of accountability. How do you regard the issue of accountability within that realm of the Judiciary, how do you see that?
PROF DYZENHAUS: The point runs a risk of sounding too slick, right, but I am an academic and what we are asking judges to talk about is not accountability to their political masters but accountability to the one thing that they recognise that they are accountable to and that is the law, and when academics were saying to the judges "you are acting in dereliction of your duty," you declared war on law, you declared marshal law yourselves, you betrayed the principles to which you owe your existence, they were saying "you were no longer accountable to the entity that you said, in your oath you would be accountable to" and that is why it would not be a compromise of judicial independence to have judges come here and talk about the issue of what it is they are accountable to, they all recognise they are accountable to the law and we should have been able to talk to them about what it is they are accountable to when they are accountable to the law.
MR MALAN: I have a major, well I am very interested in the question of Adv. Potgieter and in your answer because you talk about accountability and you said accountable to the law, but at the same time you expanded and I heard you saying the law as interpreted by academics. What is the law, who would be, would they be accountable other than on this occasion to this Commission, where is the accountability of judges post-commission, if they are still to be accountable?
PROF DYZENHAUS: I don’t think I said anything about accountability to academics, I think academics is just one of the mechanisms that a legal order can use in order to help make judges accountable.
Judges are just accountable to the law, the academic point was just that academics who are serious, if engaged in serious commentary of what is happening in the South African legal order, thought that the judges had in fact ceased to be judges; they were no longer accountable to the fundamental principles of law, the judges should be accountable to any legal order whether it is a Constitutionalised legal order or the Westminster system.
CHAIRPERSON: Joyce?
MS SEROKE:: You have expressed some disappointment at the non-appearance of judges at this hearing and that some of the submissions that have been presented by some of these judges who are not here and which gives us the feeling - makes you feel that perhaps their views and perceptions have not changed since we have been into this democratic process.
Now what would you suggest would happen to such judges now that we are in this democratic era and we are trying to get through this transformation; would you think there should be some training for those judges or they should be asked to resign or if they remain then they should be trained through this process of democracy and so on?
PROF DYZENHAUS: I think that it would be very difficult in all sorts of ways to have a witch hunt for judges who might not be completely in tune with the new legal order and perhaps all one can do is to be vigilant and I think this is a role that academics can play perhaps more than most people in society as it seems that the judges are critised when they go wrong and I think that the judges in some of the submissions are much too sensitive to media criticism.
If a judge gives a decision that’s bad, then that judge should be critised and the judges should be prepared to take very strong criticism and if one is worried about what judges are going to be doing in the future, besides processes of just judicial education, judges might need more or less enthusiastic about, I think the only answer is constant vigilance.
MS SOOKA: I’m struck by, Mr Dyzenhaus, by what you say about the fact that the judges should have been here themselves to discuss and answer some of these questions, but I think the problem even prevailing today, is where do you have these discussions, where judges interact with ordinary people, where in fact there is that room for critism and that room for the questions to be posed, because even now there is no real engagement as judges beyond the little group to which they belong, now how would you foresee that such interaction could take place, because I am struck by what some of the judges talk about themselves being part of the silent majority who gave respect to the law without commenting on unjust laws? But I think the point that one realises is that there were judges who commented but they were in the minority and what you really want to develop is a culture of speaking out, a culture of not being silent in the face of injustice.
At the same time you want to being people closer to people on the ground, but there is no room in the present system for that to actually happen. How would you foresee that that could take place?
PROF DYZENHAUS: I see no reason why a process of legal education in the Human Rights culture, given resources and people willing to work on this would not include judges talking to just ordinary people, especially people who have a history of targetted pressure not that they were part of the vast majority of South Africans who were oppressed in virtue of their skin colour but in finding out what it is to suffer from the Human Rights violation, why should that not be part of the process of legal education?
MR LAX: Just one last follow up in relation to the question that Wynand asked you about the legal education issue in a sense and that is I am reminded of a discussion that I had with the late judge Milne around the issue of legal education and it may surprise people that he was very much in favour of judges having continuing legal education in a very broad sense, the one thing he mentioned and I thought I might raise it with you and sound you out on the issue is that the judges are all part of broad associations for example, the Commonwealth Judges Association and so on and you may be aware that there is a Commonwealth Colleagiate Judge experience in terms of which judges through the Commonwealth are brought together to discuss issues. That for example is one way in which judges could experience the whole universal Human Rights culture in a much boarder sense, how would you see that kind of approach working?
PROF DYZENHAUS: I think that all such approaches are fruitful and it is not just in South Africa that people are now starting to debate on how to educate judges, in Canada this is a very hot issue and there is going acceptance of the need for judges to be involved in on-going legal education that takes place at an International level or in a Continental level all within their own country and I think the fact that judges are more receptive to this kind of education can go hand in hand with having more and more open appointment process. I think the two have to be tied together.
CHAIRPERSON: Thank you very much, I feel you have been very generous in your availablity.
I just think that when we talk about the whole question of education that we might consider that it is something that ought to be informing our whole eudcational system. You see the South African system has generally exam orientated, you are told the answers that you have got to give rather than trying to encourage a questioning type of mind, I mean why? Why? Why this, why that? That if we were such an authoritarian set up that it was something that was imbued at school and you didn’t get encouraged apart from a few exceptions, you were not encouraged to ask questions, you were prepared for providing the right answer and I can say when I went to Kings in London, it was an incredible breath of fresh are to find a Professor, and most of them would say that there was no one right answer, you had to find the one that you thought most satisfactorily gave an answer to the evidence that you had before you, whereas here at home, most times you were being prepared for docility, really. You were being trained for not rocking the boat, that was the highest sort of virtue and if we can get into our educational system, perhaps we could get the children and everybody saying "no, sorry, I am not going to accept that because you say so," it ought to have an interesting worth for acceptance and I think I mean that if we can get all of that, that kind of critical attitude in our Schools in our Universities then our judges are not going to see themselves as being strange animals.
It is something that will be inbued in them so that they will so "No, no this is nonsense" and they say so and they are not scared of saying so because the whole community is used to that. Thank you.
I think we should probably break for tea and if it is possible to have tea for 15 minutes and we try and can catch up. Thank you very much.
HEARING ADJOURNS
ON RESUMPTION
PROF HINDS:: Good morning. Thank you Mr Chairperson, members of the Commission on behalf of the International Association of Democratic Lawyers, I am pleased to have been afforded the opportunity to share with you our contribution to your historic work.
The ideal of organisation was formed about 51 years ago in Paris at an International gathering of lawyers who had fought and survived the wars against fascism and participated in the Nuremberg trials.
We are a non-governmental organisation with consultative status at Ecosark, Unesco and Unisaf. We are representated at United Nations in New York, Vienna and Geneva. Our organisation has sponsored and coordinated many international fact finding missions, to Chile, Sudan, Guinea Bassau, Zimbabwe (then Rhodesia), Turkey, Northern Island, Haiti, El Salvador, Nicaragua, Korea, Israel the Occupied Terrotories, Japan, Vietnam, Namibia and here in South Africa.
In 1988 we sponsored legal missions to observe the implementation of United Nations Security Council Resolution 435 in Namibia’s electoral transition to independance and in March of 1994 we organised international legal observer missions to the elections here in South Africa.
Now, my presentation, Mr Chairman will deal with the gross violations of human rights of the apartheid regime under international law.
By way of a preliminary statement, when I was preparing this submission for the Truth and Reconciliation Commission, documenting the gross violations of human rights committed by the apartheid regime, I had occasion to read Mr F W De Klerk’s August 21, 1996 statement and the subsequent March 23rd 1997 submission to the TRC on behalf of the National Party, setting out the National Party’s view of the historical context within which the conflicts of the past should be considered.
I was shocked and dismayed to read his efforts to attempt to debase the cumulative and collective resolve of the vast majority of the nations of the world from every continent meeting at the United Nations determined that "the way in which the South African regime implements the police of apartheid should henceforth be considered the kind of genocide".
In addition they requested the Commission on Human Rights to call on the general assembly to seek an advisory opinion from the International Court of Justice. In this submission, Mr Chairman, we will attempt to examine the crimes against humanity, deliberately inflicted on the people of South Africa by the apartheid regime both before and after 1960 and we will define these criminal acts in the context of the International Convention on Suppression and Punishment of the crime of apartheid. It’s antecedant, the Convention on the Prevention and Punishment of the Crime of Genocide and the Universal Declaration of Human Rights which both were unanimously adopted by the General Assembly of the United Nations in December of 1948.
A fundamental assumption of this submission, Mr Chairperson, is that these acts of the apartheid regime consituted a continuing crime against humanity, throughout the time periods discussed.
I am honoured to be given an opportunity to present these views on behalf of the thousands of member lawyers and jurors of the International Association of Democratic Lawyers in over 19 Nations states throughout the world, who despite their different economic, political and social systems, are united in their dedication to the principles of the United Nations Charter.
As a preliminary note. We note that although one of the specific terms of reference of the TRC in these hearings is in code the rule of the legal system during apartheid period from 1960 to 1994, it is another contention of this submission that any analysis of Apartheid as a crime against humanity must be examined in the respect of its genisis, that is, the conquests, the pillage and the theft of lands from the people’s who inhabited them which became the Republic of South Africa.
Since the mission of the TRC under Section 3 - Sub Section 1, Sub Section (a), of the Promotion of National Unity and Reconciliation Act of No. 34 of 1995 is to "Establish as complete a picutre as possible of the causes, the nature and the extent of the gross violation of human rights under apartheid, this examination and rememberance of the history of minority control of the people of South Africa are an essential aspect of that picture."
Even Mr De Klerk in his submission on behalf of the National Party while reviewing the stages of National Party’s view and Policies, identifies the previous colonial history and the first period of rigid Apartheid between 1948 and 1960 marked by the adoption of comprehensive segretation and security legislation as a primary source of contemporary understanding.
Mr De Klerk’s observation that black people were oppressed by racism codified law and custom elsewhere in the world including the United States of America, is quite accurate. Elsewhere this author has written about gross violations of human rights arising from patterns and practices of racism imposed by the de facto and (indistinct) law of the United States of America.
Routed in its history of chateau slavery and the conquest of North America by settlers this author filed a petition documenting these gross and reliably attested violations of human rights which was filed before the UN Commission and Human Rights under Ecosaf resolution 1503 in 1978.
Mr De Klerk is correct in observing that prior to the 2nd World War the European dominated world supported and justified de jure and de facto racism in the United States and the Colonial domination and theft of land and resources of Africa and elsewhere, often under guise of bringing civilisation to the primative natives. But as has also been thoroughly noted and documented elsewhere, most observers pointed a aftermath of the 2nd World War as the formation of the United Nations as the beginning of the modern struggle to implement International Human Rights.
It should be noted that while the struggle in South Africa was certainly about racism it also was a by-product and a repudiation of the Colonialism which permitted the white minorities control of South Africa and the maintenance of the power required to keep that control.
It was this kind of group base oppression that the General Assembly addressed in 1960 when it adopted Resolution 1514 on the Granting of Independance to colonial countries and peoples, recognising the passionate yearning for freedom in all dependant peoples in the attainment of their independance and believing that the process of liberation is irresistable and irreversible and that in order to avoid serious crisis an end must be put to colonialism and all practices of segretation and discrimination associated with it.
In the final section of our submission, Mr Chair, the Role of the United States, the Commonwealth Countries, Germany, France and other first world countries would be explored further. However, these nations inability to transend the economic and political interest that caused them to support the racist regime will also be considered in the context of the popular democratic struggles in these countries which protested the national foreign policies supporting apartheid and ultimately force them to reverse their public policies.
I would like to respectfully submit to the TRC when they consider Mr De Klerk’s remarks about racism elsewhere, that a well known principle of common law be considered and that is that proof of those who escape punishment and retribution for certain transgressions will not exonerate other wrong doers who have committed similar illegal acts. Thus the fact that chattel slavery was justified by the Constitution of the United States that after emancipation de jure and de facto racism continued to stay in the history of the United States, these crimes against humanity were approved and condoned by law and they continued to perpetuate economic, political and social discrimination in the United States does not exonerate, justify or mitigate against the determination that the laws of South Africa which controlled all its institutions from the Colonial beginnings of conquest until 1994 constituted gross violations of human rights under the norms of International Law.
This submission, Mr Chair, will also briefly consider the colonial racist history as well as the codified apartheid laws of South Africa in support of its assertions that all people of colour of South Africa, whether defined by racist law as African or defined as Indians or defined as Coloureds, were the victims of gross human rights violation under preemptory norms ius cogens of International Law.
Since these gross human rights violations, Mr Chair, are discussed and documented elsewhere in the submissions were legally sanctioned, as we say in United States under the colour of State Law, the South African legal system prior to 1994 and the lawyers and judges who were the servile minions to the gross violations of human rights discussed here and brought to horrible and vivid life in the individual testimony that have been taken before you, did not merely commit the abhorrent acts of individual criminals, rather, these deliberate and premeditated patterns and practices constitute the minority government’s organised efforts by deprivation of their human rights to control and limit the economic social, political and civil activities of the majority of the people of Africa.
These laws not only sanctioned the gross and pervasive violations of individual human rights, which are the subject matter of your Commission’s mandate and this submission, Mr Chair, provides but only the catalyst for the legally permissible torture and murder and other abuses of power undertaken by Law enforcement offices and other representatives of the Apartheid governement about which the TRC has taken such grisly testimony.
Let me just briefly comment on the Convention on the Prevention and Punishment of the crime of genocide. The Convention on Genocide was unanimously adopted by the United Nations General Assembly on December 9th of 1948 in Paris, one day before the Universal Declaration of Human Rights.
It is singlularly appropriate that today in South Africa we examine apartheid in the context of these legal manifestations of the collective will of the Nations of the world as the 50th Anniversary of the adoption of both the Genocide Convention and a Universal Decoration on Human Rights are being planned.
Genocide is a new term for an old crime. It means the deliberate destruction of national, racial, religious or ethnic Groups.
It has been practised through recorded history. The systematic anhialations of millions in the 20th Century because of their religious or ethnic origin so shocked the world that it collectively rejected the traditional contention that such crimes were the exclusive concern of the state that perpetuated them under domestic laws adopted for the purpose of the destruction of the groups deemed inferior.
MR CHAIRPERSON: Excuse me Professor, sorry to interrupt you. I hope of course I mean that wht you will want to do is to highlight ...(intervention)
PROF HINDS: I don’t intend to trespss on your patience and to read the whole of it - what I intend to do - I know that many of you are sitting there with great apprehension wondering if I am going to read 125 pages - what I intend to do is to highlight the portions dealing with genocide, deal with the inter-relation in terms of this antecedent formed on the basis for the United Nations declaring apartheid as a crime against humanity and then I will go to the back and deal with the role of the United States and the other Western Countries and why they in fact did not ratify the Convention. On target?
MR CHAIRPERSON: Well done. Yes.
PROF HINDS:: To continue Mr Chairm, and with your patience. Dealing now with the Genocide Convention. As I indicated the Charter of the International Military Tribunal at Nuremberg by the Allies in 1945 recognised that war criminals were not only those who had committed crimes against peace and violation of the laws and customs of war but those who had carried out crimes against humanity, whether or not such crimes violated the domestic law of the country in which it took place.
In it’s first session in 1946 the U.N. General Assembly affirmed the Charter of the Nuremberg Tribunal in the 2nd Session. It affirmed the basic resolution that genocide was a crime against International Law and those guilty of it were punishable. It has been applied to the infamous extermination of groups like the Jews and Gypsey’s in the 2nd World War, the two million victims of Pol Pot, Kymer Rouge, government in democratic Kampachia and less known abominations like the atrosities that were committed are against the Herero Africans in the course of the Colonisation of present Namibia.
If we look at Article 2 of the Genocide Convention, it sets forth, Mr Chair, the acts which consitute such a crime and whether or not committed in the time of war or in the time of peace, it includes the following acts committed with the intent to destroy or in whole or in part in national ethical, racial or religious groups. A - the killing of members of the group;
B - causing serious bodily mental harm to members of the group;
C - deliberately inflicting on the group conditions of life calculated to bring about the physical destruction in whole or in part;
D - imposing measures intended to prevent births within the group;
E - forcibly transferring children of the group to another group.
Genocide today, Mr Chair, is recognised by the world community as an international crime, under customary international law even when committed in territories of states that are not parties to the Convention.
Now, looking at apartheid in relation to the Genocide Convention, Mr Chairman, apartheid was examined in relation to the Genocide Convention by an ad hoc working group of experts established by Resolution 2.28 of the Commission on Human Rights. They produced the study concerning the questions of apartheid from the point of view of International Penal Law. The following practices Mr Chair, under the laws of apartheid were identified as instances of genocide:
(A) The institution of group areas Bantustan policies which affected the African population by banning them to areas which were totally lacking the preconditions of their traditional professions. The regulation concerning the movement of Africans in urban areas and especially the forcible separation of Africans from their wives during long periods thereby preventing Africans births.
(B) The policies in general which were said to include deliberate malnutrition of large population sectors and birth control of the non-white sector in order to reduce their numbers while it was official policy to favour white immigration.
(C) The imprisonment and ill-treatment of non-white political group leaders and of non-white prisoners in general.
(D) The killing of the non-white population through a system of slave or tied labour especially in so-called transit camps.
At it’s 20th session, the General Assembly by resolution 30.68, 28th November, 30th 1973 adopted per an open for signature and ratification the International Convention on the suppression and punishment of the crime of apartheid.
On November 30th of 1973, the General Assembly adopted the International Convention on the suppression and punishment of the International Crime of apartheid. They relied upon the Chart of the United Nations which all members pledged to work together to achieve universal respect for and observance of human rights and fundamental freedom for all without distinctions of race, sex, language or religion.
Apartheid constituted a crime under International Law. The situation in South Africa arising out of the official state policy of apartheid establishing two parallel systems of law and government. One for the minority and one for the majority discuss leading this submission was addressed by the World Community more than any other international matter, because not only the 1973 Convention on Apartheid customary International Law and Treaty Law define apartheid as a crime under International Law.
Another confirmation of its designation of a crime against humanity, Mr Chair, can be seen in the Geneva Conference on Humanitarian Law, which in addition to Protocol 1 of 1977 adopted as an addition to the Geneva Convention of 1949 adds the provision
"Apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination shall be regarded as in ‘grave breaches’ of the Protocol when committed wilfully and in violation of the Convention and its Protocol."
Similarly, Mr Chair, the International Law Commission defined the international crime as a wrongful act which resulted from the breach the state of an international obligation so essential for the protection of fundamental interests of the international community that it’s breach is recognised as a crime by that community as a whole constituted an international crime.
Thereafter the Commission adopted Article 19, which states that an International Crime may result among other examples from
"A serious breach on a wide spread scale of an International obligation of essential importance of safeguarding the human being such as those prohibited in slavery, genocide and apartheid."
Mr Chair, I will now just briefly highlight what I have discussed in our submission concerning the gross violations of the Universal Declaration of Human Rights. For example, the imposition of the criminal law and the criminal procedure as methods of political control to implement apartheid policy in violation of the universal declaration of human rights, specifically violate Articles 5, Article 6, Article 7, 8, 9, 10, 11, 12, 18, 19, 20, sub-section 1, 21 sub-section 1 and 21 sub-section 2 of the Universal Declaration of Human Rights.
The economics exploitation, that is the legally authorised repression of trade unions under apartheid, violated Articles 4, Articles 23 sub 1, Articles 24 and Articles 25 of the Universal Declaration of Human Rights.
The Bantustan policy violated the, more specifically, Articles 15 - sub-section 1, 16 sub-section 1, 17 sub-section 1, 25 sub-section 1, and 26 sub-section 1 of the Universal Declaration of Human Rights.
The legal denial of the Right to Medical Care and Education under apartheid, violated Articles 25 and Article 26 of the Universal Declaration of Human Rights.
The legal denial of the Right of Access to Public Accommodation and Cultural Life, violated Articles 27 and Article 7 of the Universal Declaration of Human Rights.
The denial of the Right to International Travel, which Mr Chair, you were specifically victimised of, violated Article 13 of the Universal Declaration of Human Rights.
Denial of the Press Rights and Free Exchange of Information which many members of the media here experienced, violated Article 19 of the Universal Declaration of Human Rights, and the 1983 South African Constitution which we contend was a political ruse was a continuing violation of Article R21.
Mr Chair, let me now just briefly address the question which by implication Mr De Klerk made comments to with respect to no democracy in fact or serious democracy, I think was the quote, in fact supported the United Nations General Assembly resolution dealing with apartheid, are thoroughly documented elsewhere in this submission, the General Assembly of the United Nations and other UN bodies took repeated action against apartheid South Africa, but not only 3rd World supporters in the UN General Assembly as Mr De Klerk dismissively suggests decried apartheid as early as 1960 the Security Council considered the question of South Africa’s lawlessness prompted by the ruthless killing of unarmed and peaceful demonstrations.
In Resolution 134 the Security Council called upon South Africa to abandon apartheid. In 1963 the Security Council called upon South Africa to stop killing anti-apartheid leaders and upon our members states to observe non-mandatory arms embargo. That same year the Security Council established a group of experts to examine methods of resolving the present situation in South Africa through peaceful and orderly application of Human Rights Law, based on subsequent recommendation by a group of experts, the Security Council in succeeding resolutions soon strengthened it’s call for economic sanctions.
In Resolution 3.11 of 1972 - the Security Council expresses grave concern at the situation in South Africa constituted a breach of the peace which established the basis for the UN to take measures against South Africa under Chapter 7 of the Charter leading to mandatory arms embargo against the apartheid state.
The United States of America, France, Italy and United Kingdom, South Africa’s principal trading partners refused to honour the international call for a mandatory and comprehensive arms embargo on the grounds that their national security during the cold war era required a strong western orientated South Africa.
Mr Chairman, unfortunately, the voting record of my country, the United States of America, on human rights issues motivated for so many years by cold war foreign policy considerations is an embarrassment to me and to millions who joined forces to participate in the economic boycott of apartheid South Africa, the call for the freedom of Nelson Mandela and to pressure the Federal Government to reverse his positions on support of the apartheid Government.
Let’s examine United States record on International Human Rights Conventions at United Nations. The Genocide Convention was signed December 11th of 1948. It took the United States 40 years until November 25th 1988 to sign the Genocide Convention.
The Convention on Racial Social and Cultural Rights was signed October 5th of 1977. To this date the United States of America has never ratified that Convention.
The Convention on Civil and Political Rights was signed on the same day, October 5th of 1977. It took the United States 25 years in order to ratify that Convention.
The Convention on the Discrimination Against Women was signed in 1980. To this date the United States has not ratified that Convention.
The Convention on Torture, Inhuman and Degrading Treatment that was signed in 1988. It took six years for the United States to ratify it in 1994 and with respect to the Rights of the Child which was signed in 1995, the United States has not ratified it.
The United States has never signed nor ratified the Convention on the oppression and punishment of the crime of Apartheid.
The Western Nations, Mr Chair, motivated not by democratic principles but by narrow economic and political self-interest, empowered the minority regime to wreak havoc and devastation on most of the civilian population of the front-line nations of Southern Africa. They used troops, bombs, tanks, economic sabotage, subversion and assassination from the late 70’s.
Normal life in the region was disrupted, many thousands were made homeless and millions more were affected by famine, resulting from drought and the destruction and diversion of resources, needed to defend these sovereign states from South Africa’s assaults.
The adverse consequences of these lawless incursions, Mr Chair, can still be felt in the region. South Africa has gone to war to protect the apartheid system from what it did describe as destabilisation of the region. In the name of stabilisation Pretoria continued the illegal occupation of Namibia and the destabilisation of the Front-line Government in an effort to destroy and support the base of the ANC and SWAPO. In fact the apartheid government destabilised the entire region in a fruitless effort to reverse the tide of liberation. These efforts like the introduction of the new Constitution undertaken while Ronald Reagan, the staunchest US ally the apartheid regime had ever had was still President of the United States.
The United States and South Africa became full partners in the war to retain political control in the region and to preserve and insulate the apartheid system. From the time Reagan was elected his administration made clear it’s aversion to the government which had chosen socially spires(?) of development.
Not only in Southern Africa but in Latin America and Central America as well the Reagan’s State Department and Foreign Policy advisors were aware in 1981 that South Africa was close to losing control of the rich resources of the country. The entire balance of power of the region had been radically changed. Angola, Mozambique and Zimbabwe were independent African states. The United Nations which had legal jurisdiction over Namibia had called for South Africa’s immediate withdrawal and free and democratic elections to permit its peaceful decolonisation. In South Africa itself the exploited and oppressed majority were increasingly organised in rage and committed to their own liberation. The Reagan Administration, therefore having determined that vital Western interest would be threatened by the elimination of the Pretoria government resolved to forestall mass revolutionary violence in South Africa.
Chester Crocker, Assistant Secretary of State for African Affairs observed that the United States should become actively involved in the region to ensure that any changes would be in the best interest of the United States. There was born the strategy of constructive engagement and it was born of two presumptions -
(1) that change in the region had to be controlled by the United States and that the region had to be stable to ensure the survival of the Pretoria government. Stability meant that the white majority, the white minority government had to stay in power while the Afrikaner ruling party had to appear to be introducing the process of power-sharing with the African population. Stability was necessary because the now free countries of Zimbabwe, Angola and Mozambique could increase their support of the increasingly strong ANC and SWAPO.
By 1981 Ronald Reagan had so covertly, had also covertly approved a National Security proposal which carried the United States into the alliance with South Africa to wage war on the Front-line States and to rehabilitate the international reputation of the Apartheid Regime.
There is no room in this submission, Mr Chairman for me to proceed further to outline the collaborative role between the United States and the Apartheid Regime. By the summer of 1986 broad popular support in the United States and Europe for mandatory sanctions against apartheid combined with the revulsion with South Africa as an international pariah and the policy of constructive engagement began to influence US policy.
In 1986 the Security Council condemned South Africa for threats and acts of aggression against other states in the region and despite the Reagan Administration’s opposition, the United States Senate and House of Representatives, voted to override President Reagan’s veto.
When the UN Security Council attempted to impose economic sanctions against South Africa for it’s aggression against Angola, the resolution was vetoed by the United Kingdom. Throughout the 1980’s the International struggle against apartheid intensified, supported by nation states and their peoples including most political and economic orientations.
The United States and other Western States’ policy of constructive engagement did not go unnoticed in the General Assembly which condemned the policies of constructive engagement and active collaboration which the Apartheid Regime followed by governments of certain Western States.
Mr Chair, as we observe the 50th anniversary of the adoption of the Convention Against Genocide and the Universal Declaration of Human Rights, it is a hope of the world that the experience of South Africa’s struggles for liberation and the lessons to be learned from it’s history will assist other societies that have not yet confronted their historic legacy of racist separateness.
And I would like to end by quoting from Ezekiel 18, sub-paragraph 2, and Isaiah 31, 29 of the Old Testament.
A legacy of the sour grapes of the forbears which continue to set their children’s teeth on edge is in fact the legacy that has been left by the Apartheid Regime."
Thank you, Mr Chairperson.
MR CHAIRPERSON: Thank you very, very much we are grateful for the skilful manner in which you have gone through 125 pages and in the manner in which you have done. Thank you very, very much. Now Hanif.
MR VALLY:: Thank you Mr Chair. Professor Hinds, you’ve very neatly and lucidly set out the international law position regarding apartheid. The one position coming through many of the submissions we have received from the judges, is the international respectability that they enjoyed, in fact the judges and the legal profession in South Africa enjoyed, this is the position put forward by the judges. Just to quote one of the submissions
"During the apartheid years the Judiciary was the one leg of government that was virtually devoid of international criticism and which was respected by the populous."
Ignore the second part, but the first part, what is your response to that in terms of the International perspective?
PROF HINDS: That is wholly unsubstantiated, Mr Vally. The fact of the matter is the United Nations and in many of the studies of experts indicated that the very system of apartheid which the judges were in fact the individuals who were not only carrying out the laws, but they ought to have known the illegality under, certainly under International Law, the acts that they were carrying out on the part of the very system, they are attempting at this point to hide behind a facade that suggests that they took an oath of office, they simply were carrying out the functions of the domestic law and therefore they ought to be immune from any liabilities therefrom.
Just dealing with the question that you have raised with the previous speaker as to whether or not there can be any criminal liability flowing from judicial acts. It is clear to me that in theory, just following the Nuremberg principals that there can certainly be liability as to whether or not they are enforceable, that is the test being whether or not at the time that these individuals were carrying out that they knew or ought to have known that what they were doing was clearly in violation of basic principles of the norms of law and fundamental principles of human rights. I happen to think that a case can be made. Whether or not there is any jurisdiction where they made be tried, I think that is more problematical because I am not sure that they would be able to be tried under domestic jurisdiction for what we would call complicity within the crime of apartheid, but it is clear that they carried out principles where they knew and ought to have known of the intrinsic race bias within the system. One had to be just blind, deaf or simply an imbecile not to have known this.
MR VALLY: Thank you Professor Hinds. One of the issues the TRC is looking at and it’s differing views on this, I would just like to get your position. Should the Truth Commission explicitly endorse the position that you have set out that apartheid was a crime against humanity and if so, why?
PROF HINDS: Mr Chairman, I think that it is a fact that the international community and the bulk of the evidence establishes unquestionably that the world community in terms of customary international law considered apartheid to be a crime against humanity. The vote at the General Assembly was 91 countries in favour, 21 countries abstained and who were the 4 countries who voted against. The four countries were the same four countries that I mentioned and the interest at stake there were economic and what they called geo-political interest.
The whole community clearly established that apartheid was a crime against humanity. This Commission could take judicial notice of that particular fact. It does not require the Commission to do anything more than to recognise judicially what existed, in my opinion.
MR VALLY: Professor Hinds, bearing in mind that it is only our interim Constitution, our final Constitution which has explicitly talked about having reference to international standards and international norms, and even now international conventions would only apply if they are not in conflict with domestic law, what obligations did the Judiciary at the time have to prevent these international human rights violations.
PROF HINDS: Well, Mr Vally, there are certain norms that are pre-emptory norms of international law, ius cogens(?) that is norms from which no derogation can be excepted. It is not for example the crime of genocide, it is no defence for someone to say "I didn’t know", the law is that they ought to have known, in terms of when you are dealing with pre-emptory norms.
Given the position taken by the international community with respect to the illegality of the South African Regime by virtue of its violations of the Charter of the United Nations, in terms of Article 55, there is no question about it that those judges who were informed and we have to assume that the judges who were sitting on the High Courts in South Africa were aware of the rulings of the, certainly the International Court in it’s decision with respect to the Namibia decision, clearly dealt with the legality of the South African Regime. I would argue that they either knew or ought to have known and therefore they have culpability with respect to the crimes that were committed by the Regime, to the extent that they in the judiciary carried out at the laws whose impact affected the victims of apartheid.
MR VALLY: Thank you, Arch, that’s all on my part.
MR CHAIRPERSON: Any questions from the panel. Wynand?
MR MALAN: Professor Hinds, can you just explain to us why, if so, I mean my information is that never never was there a tribunal set up to prosecute the crime of apartheid. Can you explain to us why?
PROF HINDS: Mr Chairman, there was a Committee that was chaired by Prof. Basumi, specifically charged with setting up such a tribunal. The Committee in fact prepared a report setting up the procedures for establishing such a tribunal. That required Security Council adoption, and as you know the Security Council has five permanent members and as you know any veto by any one of the members would make any proposals put before the Security Council a nullity.
One of the reasons for example why, for that matter, there has never been a tribunal set up to try Pol Pot for the atrocities that were committed purportedly by the Khmer Rouge in Cambodia then known as Kampuchea, that again is the same kind of political consideration. It has absolutely nothing to do with considerations of law, it has to do with considerations of politics and that is why a tribunal was never established.
MR MALAN: May I just ask one other question. In terms of the 73 Convention, the Crime against Apartheid and who were criminals, if I read that definition correctly, then every civil servant is a criminal and could be prosecuted, is that right?
PROF HINDS: I think that the question has always been whether or not individuals knew or ought to have known and in fact could have taken a different act and I think that is the test. And that of course was incidentally the same test with respect to the Nuremberg principles. I mean you are not dealing with any different tests, I mean, could an ordinary soldier be prosecuted?
CHAIRPERSON: Thank you very, very much it is very helpful to us and we are deeply grateful. You may stand down.
We are trying to make up as it were for a bit of lost time and if we appear a little on edge you will understand we are trying to look laid-back but actually we are churning inside, Liza Keys please. Sorry we have kept you waiting so long and having had a little encounter this morning.
LIZA KEYS: ( sworn states)
Mr Chairman, Commissioners, thank you for inviting me to this hearing. My name is Liza Keys and I am a South African Film Producer. You have asked me to appear before you in connection with the case of Dimitri Stefendas, the parliamentary messenger who assassinated the Prime Minister of South Africa in 1966.
Stefendas is still alive but his doctors at Sterkfontein hospital where he is a patient, have judged him not well enough to attend these proceedings.
I me Stefendas 18 months ago while doing research for a documentary on him for the SABC. I spent many hours with Stefendas and feel that there are aspects of his story which should be brought to the attention of the Commission.
As you are no doubt aware the Supreme Court found Stefendas mentally unfit to stand trial in 1966 and committed him as the State President’s patient. The Government of the day took advantage of the provisions of the Mental Disorder’s Act of 1916 to lodge him in prison, despite the fact he had not been convicted of any crime.
It was only in 1994 that he was finally admitted to Sterkfontein hospital. The decision to imprison Stefendas rather than place him in a mental asylum as would have been appropriate, is extremely unusual where a State President’s patient is concerned.
In view of the fact that he was not convicted of a crime, this represents a Human Rights abuse.
It was compounded by the fact that he was placed not in an ordinary prison but what was effectively death row and held there for nearly a quarter of a century. By the accounts of other prisoners he was treated viciously there. He was not only subjected to the sounds of the weekly proceedings in the gallows, but suffered personal abuse at the hands of warders who are alleged to have urinated in his food and beaten him up while he was trussed in a straight-jacket.
His treatment was no secret, reports by former prisoners were widely published but no action was taken by the relevant authorities, including the Judiciary which had consigned him to this fate.
There is another matter which ought to be brought to your attention and it if not further investigated at least to be placed on record. A submission was made recently to your Commission in defence of the Judiciary by the former Chief Justice, Mr Justice Corbett, in which reference is made to Stefendas. Answering criticism of the bench by Mr Krish Govender, over the treatment of Stefendas, Judge Corbett makes the statement and I quote -
"That dominating his mind was a strong perception that his life was ruled by a tapeworm, a figment of his imagination."
The former Chief Justice goes on to say that -
"The description of Stefendas as a victim of apartheid is bizarre."
These comments by Judge Corbett echo observation made by the judge president of the Cape, Mr Justice Beyers, when he found Stefendas unfit to stand trial by reason of insanity in 1966, in fact Judge Beyers went further. In a statement as dismissive of a man’s humanity as it is possible to imagine, he said -
"I can as little try a man who is not at least the makings of a rational mind, as I could try a dog or an inert implement - he is a meaningless creature."
Mr Chairman, it is as I understand it, part of the process of your Commission in broad terms to bring to the public an understanding of the effects of apartheid on inhabitants of this country, in that respect the statements by Judges Corbett and Beyers may have been misleading. I would like to put the record straight for offering you some details on the life of Dimitri Stefendas which may be relevant to the death of Dr. Verwoerd.
I was brought up believing along with many other South African’s including apparently the former Chief Justice, that Stefendas was a madman, he was ordered to kill the Prime Minister by a non-existent tapeworm which he believed inhabited his stomach. It seems Stefendas did have a tapeworm as a young man, he suffered a delusion at a later stage that it inhabited him. I have discovered no evidence, Mr Stefendas believed such a tapeworm ordered him to kill Dr Verwoerd, despite attempts by his interrogators to elicit that response from him.
I am not in a position to challenge the findings of the courts, but at the time of the assassination Stefendas was insane, suffering an extreme form of schizophrenia, but the characterisation of him as a meaningless creature is self-evidently nonsense. It is obviously not possible to say what course South Africa would have followed if Verwoerd had not been assassinated but it can be argued that by killing the architect of apartheid Stefendas changed the course of South African history.
The Judge President of the Cape was equally in error when he compared Stefendas to an inert implement. Stefendas is not only a creature of flesh and blood but whatever his state of mind in 1966, was as deserving as any other member of our society, of understanding and compassion.
It is not generally appreciated that Stefendas was a coloured man, he was born in Mozambique in January 1918, the son of a Greek engineer and a mother who was of mixed race. He first came to South Africa at the age of 10 when he was sent to a boarding school in Middelburg in the former Transvaal. There he seems to have fallen victim to an early dose of racial prejudice, he was teased about the colour of his skin and nicknamed "Blackie". When he was fourteen his father went bankrupt and Stefendas went back to Mozambique. It was during this time he discovered he was an illegitimate child of a coloured woman.
He returned to South Africa in 1936 where he worked for a while at a munitions factory. In 1941 he joined the Merchant Navy and began his life as a wanderer.
Mr Chairman, I will not get bogged down with the chronologically account of Stefendas’s life and his world travel, but briefly his travels were sign-posted by a litany of deportation orders and psychiatric reports from institutions he found himself in around the world. At one stage he walked across the frozen Simcoe river from Canada into the United States.
At another he presented himself at the Mandelbaum Gate, demanding entry to Israel from Jordan.
He was detained for 6 months on New York’s Ellis Island; given shock treatment in Portugal; certified insane in England; baptised on a beach in Greece; given more shock treatment in a German asylum; passed through France as a refugee under the auspices of the Red Cross and finally in 1964 returned to South Africa.
It is clear that he was mentally disturbed by the time he returned to South Africa. One psychiatric report for example from the North Grafton State Hospital in the United States speaks of him hearing voices from radiators, but the race issue does appear to have had something to do with his state of mind. The same reported quotes him as saying he had loved a girl in South Africa but would not marry her because he feared they would produce a black child. The report also says that he left South Africa because the CID were pursuing him as a Communist. Before the was Stefendas was a paid up member of what was then the Communist Party of South Africa and he did have a pronounced social and political conscience.
Among the records of investigation into his background conducted after the assassination is a copy of an internal memorandum of the Mozambican Security Police recording the following:
"Dimitri Stefendas of mixed blood, a coloured, was recently in the company of persons of the Negro race, blacks, in the bar of the hotel of Gondula, accompanied by other persons of a Negro race and was heard to say the following phrases of subversive character.
‘This country is not called Portugal, it is called the United States of Mozambique, it’s flag is of a blue colour with a rainbow, that rainbow represents all the colours. We already have money and any day now this will come to an end because what is necessary is not be fooled into saying that we are Portuguese, because we are Africans. Long live our Country, the United States of Mozambique.’"
It would seem from that Mr Stefendas anticipated Archbishop Desmond Tutu by a good many years in articulating the dream of a Rainbow Nation. He declared his abhorrence of apartheid on a number of occasions including interrogation sessions which followed the assassination of Dr. Verwoerd. In a statement to the police six days after the assassination Stefendas said:
"I did not care about the consequence of what would happen to me afterwards, I was so disgusted with the racial policy that I went through with my plans to kill the Prime Minister."
It is also interesting to note that before the assassination Stefendas, who had landed up with documents defining him as white, applied for reclassification as a coloured. Stefendas was a man of considerable intelligence, psychological tests put his I.Q. at 125, he spoke 8 languages fluently, despite his record of mental instability many who met him on his travels were impressed by him.
A personnel officer at a German engineering firm recalled for example,
"He drove up here in a big battered American car, dressed and well-mannered, he was extremely courteous, a very pleasant man, he looked like a satisfied successful businessman."
Mr Chairman, that is the man Judge Beyers said did not have the making of a rational mind, a man who was no more than a dog or an inert implement. Chief Justice Corbett said it would be bizarre to describe Stefendas as a victim of apartheid. I would not go so far as to blame apartheid for the assassination of Dr. Verwoerd, but neither can I share the judge’s confidence that apartheid was not a factor in his crime.
Stefendas was like a cruise missile. One can only guess at the ....(indistinct) of experiences which effectively punched the fatal co-ordinates into the biological computer which is his mind. But it was with a sense of inevitability, almost a purpose, that he moved ever closer to the Mother City until ten past two on the afternoon of September 6th 1966, when a man was once mocked as ‘Blackie’ because of the colour of his skin strode across the floor of the National Assembly, brushed aside a cabinet minister and plunged his knife four times into the body of a man who was to be remembered as the Architect of Apartheid.
We will never fully understand the mind of Dimitri Stefendas, to some he might seem a monster, a Frankenstein, but it is worth remembering that the power of Mary Shelley’s famous story of Frankenstein lies in the intense sense of humanity which the monster shared with mankind.
I would like to conclude this account of Stefendas’ life by quoting the following words from "Frankenstein’s Monster".
"Am I to be thought the only criminal when all human kind sinned against me."
Mr Chairman, you may ask what can be done by your Commission in relation to Dimitri Stefendas. I would suggest that first of all steps should be taken to ensure that the mentally ill are never again treated like Stefendas. The power instilled there in Section 28 of the Mental Health Act enabling the Minister to commit a State President’s patient to prison, this is surely wrong on two counts.
No man should be imprisoned unless he is found guilty of a crime. A mental patient should be held in institutions designed to treat them. Stefendas appears to be well treated at Sterkfontein hospital. He is however, intensely lonely there and benefits enormously from outside contact. I would like to suggest that the Truth Commission should send a representative, perhaps together with a Social Worker to assess whether anything can be done for him in this regard. Thank you.
CHAIRPERSON: Thank you very much for a very moving account. We are enormously grateful, and are you all right now?
Thank you very much. Paula McBride. Thank you for coming.
PAULA McBRIDE:: (sworn states)
CHAIRPERSON: Well, most of us know about you and maybe in your submission you might be able to let others know a little bit about you, I don’t know.
MS McBRIDE: Okay. My focus today is going to be on the judges and the role that they played in the imposition of the death penalty and it is not, I am not a lawyer so it is not a legal submission, it is a submission that hopes to place the responsibility of the death penalty on the shoulders where that responsibility belongs, which I believe is on the shoulders of the judges in this country.
I think it is generally accepted, mostly accepted, that the law in this country has been grossly unjust. It was designed to comfort, benefit and protect the minority of people in this country and to denigrate and to repress the majority of people.
It would seem obvious that those people who dispensed justice in this Country, i.e members of the Judiciary when they did so in a country with unjust laws, they dispensed injustice, there can’t be any other conclusion that anyone could come to. They enforced every single aspect of apartheid, from the most petty and degrading to the most murderous and genocidal. They sent people to jail or to the gallows knowing full well that they had not had a competent defence, they accepted statements that had been secured through torture, they enforced legislation that silenced the Press. They presided over Commissions of Inquiry that whitewashed Security Forces excesses and corruption. They punished opponents of their system, and I say "their" systems very deliberately because it was their system, with the harshest array of cruelties including banishment, house arrest, hard labour, lengthy jail sentences and where they could, with the sentence of death.
Even within the unjust laws judges often went that very extra mile to go beyond the laws themselves and I think that two cases highlight that, highlight the uneven and the biased way in which laws were dispensed by the judges. In the one which I will deal with later is the case of Sibusiso Andrew Zondo, who was sentenced to death. He was a young teenager at the time, he had seen terrible injustice, he had been prey to terrible injustice, he had seen friends killed and then acting with ANC structures he planted a bomb that killed five people. He would have been a candidate for amnesty today had he been alive. Judge Leon, a leading liberal judge at the time, could find no extenuation and he despatched him to his death. In the other case during the same time period an elderly farmer who was irritated with children who were trespassing on his farm, chased the two children who were aged 5 and 9 with his truck, he drove over them repeatedly back and forwards just to make sure that they were dead and the judge in his case who used the same legal system, the same precedents he found that the man’s age of 70 was an extenuating circumstance and he was given a suspended five year sentence. He never saw the inside of a jail cell and these are the judges who we are not seeing at the moment because all they did was interpret the law.
Before I even get to the death penalty, the major problem that I have, and I say this as a lay person, is that the Judiciary stamped the respectability of their learning onto the oppressive system in this country. They, I think in many cases did far worse than the police, because they were one and all, they were so-called learned men, they came there with the robes of their office and the sanctity of their being and they were educated enough to understand that what they were doing was wrong, but they have managed even up till today, up till this hearing to preserve and propagate the absurdity that they were somehow impartial, that somehow they were above it all and the Judiciary’s role in our country made them far more valuable to the fortification of apartheid than a thousand Vlakplaas farms could have done. It gave the system a veneer of respectability which the state could flaunt to the outside world and it added steel to the hand that crushed the people of this country.
I think the reason for me coming here today is, and I can say it at the end if it is easier, but it is to ask the TRC why it is that the judges are not being subpoenaed to appear before the Truth and Reconciliation Commission to account for what they have done in our history. They were instrumental in so many things, the leaders of our liberation movements have been subpoenaed to appear before the TRC and I think that it is imperative that stronger action is taken to get the Judiciary in this country to come forward and to account for what they have done.
I think with regard to the death penalty, I have examples in my submissions but I am only going to use two because otherwise it is too long, but I have copies available if people want them. The elegant and the pristine judges chambers are very, very far removed from the bloody mess in the gallows chambers and yet the link between them is so strong that it needs to be made.
It wasn’t the prison service or the hangman or the State President who put people into death row, it was the judges in our country. Between 1961 and 1990 all the judges in our country were white, 99 percent of them were male, and almost without exception they were drawn from the ranks of privileged and power, highly educated one and all. In accepting positions on the bench, they accepted among other things, the task of interpreting and applying racist and oppressive laws and they accepted that they would be empowered to sentence other people to death.
The death penalty was available for a number of crimes and it was mandatory for murder where there was no extenuating circumstance, and I want to just dwell on that briefly, because I think that the question of a mandatory death sentence is entirely misleading.
It was mandatory for murder only when there were could be found no extenuation. The question as to whether or not extenuation exists was left to the judge and to his assessors. This was the judgement that they made and this was discretionary, this was not mandatory. No one told them how, there were guidelines on extenuation, but there were many judges who found extenuation and many judges who never found it.
Judges were allowed to hide behind the letter of the law and shift the responsibility for their decision onto the law. The fact of the matter is that if judges did not want to pass the death penalty they did not have to.
Judge Raymond Leon who had himself passed the death sentence said as much, "Why should a man’s life depend on the chance of which judge he appears before." Some judges find extenuating circumstances more easily than others and I know one judge who has been on the bench for many years and has never passed a death sentence.
Judge Leon, and I am going to deal with him as an example, I deal with others, but because I am going to deal with the Andrew Zondo case he was converted to abolition and in his own words "Only after sentencing between 12 and 18 people to death". Now most people who have murdered or killed remember how many people they have killed, not so in the case of Judge Leon, they had the luxury of passing on the job of death to others. Judge Leon never went into the execution chamber, he didn’t pull the lever that opened the trap door and he never washed the bloodied white hoods worn by the condemned. It wasn’t judge Leon and his brothers that had to teargas prisoners out of their cells and drag them up to the steps of the gallows, he never had to go outside the wall of the prison and inform family members that the job had been done.
If he had done this maybe his memory would have served him better. This was a judge who sentenced Andrew Zondo to death for his role in the Amanzimtoti limpet mine attack in which five people were killed. Andrew was hanged on the 9th of September 1986 with Lucky Piya and Sipo Zulu.
At the time he planted the bomb he was 19 years old. When he was hanged he was 20 years old and Judge Leon and his assessors decided that in his case there was no extenuation and that he deserved to die. The limpet mine that caused that explosion was detonated by two people, one who is known as Mr X, was 35 years old and the other Andrew, was 19 years old. The limpet mine had been supplied by Mr X, who was senior to Andrew in the Liberation Movement and he accompanied Andrew to the site. The act was carried out in retaliation for an SADF raid into Lesotho that had killed nine innocent civilians. Mr X became a star witness described as an excellent witness on more than one occasion by Judge Leon. He received full indemnity from the Court for his actions and he walked out a free man. Andrew who freely admitted to his role in the attack received the death sentence.
Judge Leon has been quoted as asking himself questions during his sleepless nights after sentencing that maybe he should have asked himself before he passed the sentence. These are questions that reach into the heart of the debate around the death penalty and I am reproducing them in full here, would the outcome have been the same if the counsel had been more competent? Had he asked all the questions he should have asked? Had he interpreted the case correctly? Did he know enough about the accused’s background? Had the defence investigated the case fully? What possibility for error existed? And why should a man’s life depend on the chance of which judge he appeared before?
Sadly he asked these only afterwards. He instead accepted fully the version of events given to him by a person, Mr X, whose integrity he should have questioned, a person who turned State witness to protect his own skin. The behaviour of Mr X’s in sharp contrast to that of Andrew, who in an effort to protect him told police and the magistrate that he had acted alone. In summing up Judge Leon ...(tape ends) ....we are unanimously of the clear view that the extenuation is not present. He then passed the death sentence, not once, but five times ending with the kind words "May the Lord have mercy on your soul."
This incident, and I want to highlight it, arose from the incident of the December 19th 1985 SADF raid and the outcome of the two incidents were very different. On December 19th under instructions from their political leadership an SADF squad crossed the Caledon River into Maseru and killed nine South African refugees who were at a small party. The perpetrators of these murders have never been identified, prosecuted or sentenced. There was no prosecutor as in the case of Andrew, to prosecute them and describe them as of evil mind and there was no Judge Leon to decide whether or not they had gone to Maseru with the intention to kill. The families of these victims have not been afforded their day in court and for all we know these particular murderers are alive and well.
On the 23rd December 1985 the retaliatory act was carried out and the person who carried it out, Andrew Zondo, was declared to be a man, albeit 19 years old, of evil mind by Mr Ross Stewart the prosecutor.
Judge Leon decided, in what I would term arrogance, that there was no other court that would reach a different decision and so he was refused leave to appeal. Unlike the soldiers who entered Maseru on the 19th December, he is no longer living. He was sentenced on the 9th September 1986 and Andrew Zondo said himself at the time,
"I listened to the prosecutor and I saw that he did not have any ideas about us, he was ignorant of our ways and our feelings, and I looked at the Judge and the prosecutor and the thought came to me that they were ants and engaging with them we were dwarfing ourselves. It is a curse to be a judge when you believe that you hold the life of a person in your hand."
There are many stories that need to be told of people who were sentenced to death by judges and I am going to just deal with two very briefly because I know you are on time.
One is the case of Michael Bini Matle. Michael Matle was tried, convicted and sentenced to death in the Lichtenberg Circuit Court on August 26, 1988. It took precisely a day from the time he entered the court to when he left it with the sentence of death. The sitting judge was Justice D Van Zyl. When Michael Matle appeared in his courtroom he was given five minutes to decide whether or not he wanted the pro deo lawyer appointed to him. He decided to dismiss the advocate. He didn’t give evidence in his own defence nor in mitigation of sentence and he called not witnesses.
He was accused of murdering Brenda Sebotse who died as a result of stab wounds on May 17th, 1987. In a statement to police soon after his arrest, Michael Matle said he had left a stokvel that night with Brenda and they were on their way to his parents’ house. She changed her mind and they argued and in the tussle he had stabbed her with a knife.
In his summing up at the end of the one day trial Judge van Zyl said the following:
"The accused did not take the court into his confidence by giving evidence and in the absence of any other evidence the Court finds that there was direct intent to commit murder".
he then sentenced him to death.
In one day with no evidence before him of who Michael Matle was, where he lived, who his family was, whether or not he had schooled, what influences came to bear upon him and what his life had been like, Judge van Zyl decided that Michael Matle was no longer fit to live. Judge van Zyl is a highly educated man, no doubt with family and friends of his own and a life that was full and complex, regarded the life of Michael Matle as the life worth so much less than his own. His search for extenuation took him no more than a few minutes.
The judges as I say are too many to name here and more academic papers than mine will have dealt with those but I want to deal briefly with one particular case that was a common purpose case, just to demonstrate something on the judges. The most famous of the common purpose cases are obviously the Sharpeville Six and the Upington 14 and I have dealt with these in my submission, but I want to look briefly at the Queenstown Six, less known in our history.
Six young men were sentenced to death by Justice Kroon in Port Alfred, June 24, 1987. They were found guilty on the basis of common purpose of the murder of Nazipo Zamela. They were sentenced to death and sent to Pretoria maximum security prison. Within six months of being there, one of the accused Wantu Salinga had died of TB and this was in a prison which boasted a doctor in daily attendance and a diet devised by qualified dieticians.
On May 23rd 1989 a re-trial was ordered due to a technical irregularity in the first trial. Now there were only five as Wantu had died. They were retried by Judge C Jansen, same facts, same defendants, different judge. They were sentenced to an affective 20 months each in prison which they had already served. A big difference between this sentence and the death sentence, except to Wantu Salinga. And as I say I don’t want to go into much more detail, I just really want to leave with the, as to what the TRC can do which is what I said at the beginning, is that I very strongly believe that the Judiciary in this country must not only be invited to come and make submissions to the hearing, I think that where they refuse the invitations they must be subpoenaed to appear and to give an account for themselves. Thank you.
CHAIRPERSON: Hanif.
MR VALLY: Thank you Archbishop.
Ms McBride, I think it is only fair to put before you what Chief Justice Corbett said in his response to a criticism from NADEL regarding the Andrew Zondo trial and I will just read to you a small passage -
"The trial judge was an experienced and highly respected member of the Natal bench. The Court gave careful and anxious consideration to the question of extenuation, and took into account the fact that the accused was a little over 19 and a half years of age when the crime was committed.
The second sentence of the crime whether the accused planted an armed limpet mine in a crowded shopping centre at Amanzimtoti on the 23rd December 1985, two days before Christmas, it was timed to detonate at 11h00 which it did, five people including two children were killed and scores were injured.
The Court found on the evidence that this was a deliberate, premeditated killing and that the accused had afterwards expressed to his accomplice his dissatisfaction with the fact that ‘only four people’ had been killed. It appears that in 1982 at the age of 16, and then in his matric class at school the accused was recruited by the ANC and sent to neighbouring countries where he joined Umkhonto weSizwe. He spent two years in Angola during which time he was taught to handle explosives and firearms.
In 1985 he returned to South Africa where he taught others, some of them older men, what he had learnt in Angola.
The Court concluded that although the accused youth was a factor it was not a compelling factor and that taking all circumstances into account a finding of no extenuating circumstances should be made.
After leave to appeal was refused, the accused petitioned the Chief Justice and the petition was considered by three judges of the Appellate division who refused leave to appeal. Leave could be granted only if there were reasonable prospects of success and an appeal could only succeed if the Court was shown to have materially misdirected itself or committed an irregularity or if the finding on extenuation was one which no reasonable Court could have made. No such grounds were established."
There is further representation by Justice Corbett on this issue in criticism of the position taken by Mr Govender of NADEL.
What I am trying to put to you is that as the Chief Justice does, in terms of the law existing at the time, in terms of ...(indistinct) existing at the time, could Justice Leon’s position be legally justified?
MS McBRIDE: Well it just, I would say no. I think it is no. I don’t know if I need to say anything else. I think that it is interesting that on the same provincial division there was a judge who had seen many capital cases in front of him who never passed the death sentence.
MR VALLY: I am trying very hard not to defend the death penalty but I just need to ask this question - is it a personal point of view or is it a legal point of view?
MS McBRIDE: What I am saying is that the question of finding extenuating circumstances is a question that is a moral one and I think that the, for a judge to say he had no other option, is wrong, whether that is a legal opinion or a, any kind of an opinion, it doesn’t matter, the fact is a person could find extenuation if they wanted to find extenuation and I think the point I am making is that judges are human beings, judges have prejudice, judges are not above prejudice, judges when they put their robes on do not become supermen, they are raised in the same country as all of us and I think that there is a lack of acceptance of that, so it is just my opinion.
MR VALLY: The reason I am also asking this question is to take this issue forward on the issue of the death penalty bearing in mind the role of the Truth Commission in making recommendations in future. The Constitutional Court has made a ruling regarding the unconstitutionality of the death penalty, however, either a future Constitutional Court could come to a different decision or there could be an amendment to our Constitution which allows the death penalty even in the new democratic South Africa, would your position on the death penalty in terms of what you have amongst other things explained being the arbitrary nature depending on which judge you draw etc. would the same pertain?
MS McBRIDE: Yes, it would be exactly the same. I wouldn’t mind how democratic the country was, I would oppose the death sentence.
MR VALLY: And finally there is this one other issue which I want to ask you about, and the death penalty, I personally find abhorrent, however, let’s remove it from that scenario, let’s take a situation where a judge sentences someone to life imprisonment, surely that very responsibility that society has given to a judge, and I am talking about a democratic society, would apply, it is one of the responsibilities that judges given in our society, that you will take responsibility for judging this person’s crime and upon finding him guilty with all the rules in place and legal defence you are entitled to withdraw him from society for a certain period.
MS McBRIDE:: Yes. What I think the difference is, and I think the difference has been highlighted in cases in Britain recently, like the Guildford case where there is a difference between being sentenced to death and being sentenced to life imprisonment and in those cases where there was a wrongful conviction and a wrongful sentence, 15 years later they came out of jail. It is a bit difficult to do that when you have sentenced someone to death and that is why we will always accept judges have those prejudices but when those determine the difference between life and death they are more abhorrent.
MR VALLY: So your criticism is largely centred around the death penalty, not necessarily the role that the judges have to play in society?
MS McBRIDE: Well, I think that there is a general criticism on the role that judges played during the apartheid era and that I would stand by. What I am saying is that it becomes particularly strong when what those prejudices meant and what they are upholding in the system meant, was the difference between life and death, but my general criticism which I spoke at the beginning stands, I think they upheld the system of apartheid and they did it very well, because apartheid ran very smoothly, and I think that they must be made to account for that.
MR VALLY: And finally, because there have been calls by some politicians for the reinstatement of the death penalty, what would your view be in regard to the position regarding the reinstatement of the death penalty vis a vis the issue of Human Rights?
MS McBRIDE: What do you mean, would I support the reinstatement of the death penalty?
MR VALLY: No, do you think it is a violation of human rights - if there was a death penalty even if the Constitution allowed it?
MS McBRIDE: Ja, I would support the Constitutional Court judgement on it and their interpretation of it. I would.
MR VALLY: Thanks Paula.
CHAIRPERSON: Thank you. Joyce.
MS SEROKE:: Paula, it is interesting that you highlight the trial of Andrew Zondo in your submission and the manner in which Judge Leon conducted that trial, because Mrs Zondo appeared before one of our hearings in Durban to testify against that trial and she made two requests to the TRC.
Firstly she was very perturbed by the fact that her son was 19 years old at the time he planted the bomb, and that Judge Leon could find no extenuating circumstances, and the request that she made to the TRC was that we should put the straight record and she would feel very happy and would feel that her son didn’t die in vain. Now, what would you suggest for the TRC to fulfil that request of putting the record straight?
MS McBRIDE: Well, it is a very difficult thing to say because he has been hanged and he is now dead and there can’t be a retrial, as it were, so Judge Leon or whoever could not undo that. I just think that what is important is that the history of Andrew, and of so many other people like him is recorded, you know that what happened to him and what he went through and particularly that it is put in the context of, which is why I mention it, of the fact that it was as a result of a SADF raid which killed - a famous term, "innocent civilians" in another country and I just think it needs to be, you know the uproar about Andrew’s case among the predominantly white population was around the fact that he had, it was what Judge Corbett had said, he had killed innocent civilians who where shopping before Christmas. What of the nine innocent civilians who were killed in Maseru while they were at a party, and I just want it contextualised and I want his name not to be forgotten among others.
MS SEROKE: The second request that his mother made to the TRC at that hearing was in the absence of a burial, a funeral because you know people who are hanged are not allowed to bury their loved ones, so the community and their friends to honour Andrew Zondo had to have a vigil and what disturbed Mrs Zondo was the fact that the police charged into that vigil and disturbed it and destroyed the furniture and the crockery and she made a humble appeal to the TRC, which for me was so moving, when she asked the TRC to replace the crockery that she had borrowed from her neighbours and I felt, you know, Mrs Zondo when she said this, the TRC should put the record straight, she didn’t ask for her son to come back because he had been hanged, but she wanted the facts to be highlighted and I wonder at hindsight now if we shouldn’t have invited that family to this very hearing so that they could hear for themselves about the actions of some of the judges that we are now challenging now. Thank you very much.
CHAIRPERSON: Thank you. Ilan Lax.
MR LAX: Thanks Chairperson, just one comment on the Zondo case. You may or may not know that the Quinn family gave evidence before us in Durban and some of the perpetrators involved in that killing have applied for amnesty, the bitter irony is that they all received medals after that event and Zondo was sentenced to death. I just thought I would mention that.
MS SOOKA: Paula, you use the words "you want the judges called to account", I was just wandering exactly what you meant by that if you could just unpack that please?
MS McBRIDE:: Yes, I just, I think and I don’t want to sound as if I am on a sort of vengeful mission against the judges of this country, but I think that it is ironic that there have been, I mean, two weeks ago the leaders of Umkhonto weSizwe and of APLA were subpoenaed to appear at a further hearing to give further account of acts which they carried out to liberate this country from apartheid and yet the judges are being invited to kind of give learned opinions whereas in fact what I would like to see is for the same kind of treatment and I am not saying it in, it sounds antagonistic, it’s just because I want to say what I want to say that they need to be told "we are having a hearing on this date and you are required to appear at it to account for the following" that is what I am saying, I just think that for far too long in this country there has been a notion of the judges as being above it all and I think that the TRC should not buy into that. That is all I am saying, so I am on a vengeful mission.
CHAIRPERSON: I will clear the court. Thank you very, very much Paula. We are most grateful.
I think we should take a break and consider all these opinions that have been thrown at us and we will get back at 2.00 o’clock. Thank you very much.
HEARING ADJOURNS
ON RESUMPTION
CHAIRPERSON: Thank you very, very much. Thank you for having come up and we are enormously grateful that you have done so and I think as they say without much ado let’s hand over to you.
MR MALAN ADMINISTERS THE AFFIRMATION TO NADEL MEMBERS
NADEL MEMBER: Thank you Honourable Chairperson, members of the Commission, the Minister of Justice, friends, colleagues, comrades and everybody else.
NADEL wishes to express his sincere gratitude to the Commission for having it being present at this what is certainly a historic occasion. It is historic in many senses, Mr Chairperson, but unfortunately it is also historic in the default of our Judiciary to be here today and together with everybody else, Honourable Chairperson, we would certainly like to see the Judiciary here so that they themselves are not judged in default. We might proceed Honourable Chairperson to introduce the NADEL delegation.
On my left is Michelle Norton, Brent Williams, Zanade Hussein, Mdali Mpofo. The submission has been broken up into four areas and my colleagues will assist us in making the submission and Honourable Chairperson, if you will allow us we will proceed through the documents at great speed.
At the outset for those who have our document, we wish to just place on record our dedication of this submission to all activist lawyers who were in advice offices in the courts, in community organisations, in exile, in research and in the teaching of law contributed selflessly to the struggle against apartheid. We remember in particular the late Braam Fischer, MK Gandi, Huxley Joshua, Benny Keith, Bekkie Mlangeni, Griffiths Mxenge, Victoria Mxenge, Duma Nokwe, Sol Plaaitjie, Joe Slovo, Robert Sobukwe, Oliver Tambo, Godfrey Peche, Julius Miya and our colleague and comrade Soraya Bosch, who went to her untimely death very recently.
Honourable Chairperson, the TRC has provided judges and lawyers with the unique opportunity to reflect introspectively and publicly on their role and that of the legal system in the commission of violation of human rights under apartheid. This historical moment requires lawyers and judges to take up the challenge of explaining to the victims, survivors, the nation and indeed the international community why whether wittingly or not deliberately or in protest, in silence or in clamour they allowed themselves to be used by the apartheid state in the furtherance of its perverse ideology, in the violation of the most fundamental rights of humanity and in the most vicious and violent subjugation of the majority of the people of South Africa.
It is with a deep sense of responsibility that the National Association of Democratic Lawyers makes this submission to the TRC. In doing so Honourable Chair, we hope to contribute to some measure to your mandate in terms of the Act and more importantly to assist, albeit modestly, in laying the foundation for a true and lasting reconciliation in healing that our country so desperately needs and demands from all of us.
Honourable Chair, it is appropriate for NADEL to record its, in this submission, it’s views to the TRC and more particularly to the amnesty . . . (indistinct) the post-amble to the Interim Constitution. It was not without much discomfort and debate that the exigencies of our country’s transition to democracy which necessitated the measure for amnesty were rationalised against our passion for true and simple justice.
The political context of the Commission, the constitutional rights, values and the mechanisms of the Human Rights Commission, the Public Protector, the Gender Commission, the Youth Commission and the Land Restitution Commission, was important in our acceptance of the amnesty measure.
The real success Honourable Chair of this Commission is therefore inextricably linked with and dependent on the effectiveness and the success of each of these institutions and more importantly on the extent to which social economic conditions of the majority of people of South Africa are properly addressed. In this regard we note with concern the lack of adequate delivery by the government in its programmes to address economic and social needs of impoverished South Africans.
Besides the political considerations for amnesty the capacity and willingness of the prosecuting authorities to bring to justice the perpetrators on gross human rights violations and other abuses were simply not convincing. That the victims and survivors of these violations might have to undergo further trauma as complainants in the criminal process without the real possibility of the perpetrators being convicted further persuaded us on the expediency, by the expediency of the amnesty measure.
We are mindful though of the serious limitations of the Truth and Reconciliation Commission. There are lawyers and activists committed to human rights, our dilemmas with regard to the amnesty process remained. We refer more appropriately to the submission made this morning by Prof Hinds in which he sets out the various concerns at international law and the extent to which our amnesty process meets our international obligations. Also Honourable Chair, in accordance with our international obligations together with the International Association of Democratic Lawyers we have collaborated in an international monitoring project of your Commission which we hope will provide a critical window to the TRC and which will also at the end of your deliberations also produce an independent report.
Honourable Chair we then make a submission with regard to the contextual examination of the legal system. South Africa’s legal system must be properly contextualised and scrutinised within the particular forms of colonial conquest and subjugation in South Africa’s political history.
The conquest of Africa brought about a systematic framework of laws that denied the indigenous people the most fundamental of rights. The repressive regime of laws and policies legitimised the pillage of natural resources such as land, gold and diamonds and paternalistically eroded existing customary laws, values and practices. In this context the ideological framework of apartheid and its legal system was part of a continuum of the early policies and laws of human servitude and subjugation. Apartheid’s legal machinery was based on the inter-dependent economic and social interest and beliefs of the white minority. Prof Bundy crisply states this in his article on Law Power in Rural South Africa.
"Law is not neutral, it reflects existing interests and a distribution of power in any society. The law of 19th and 20th century South Africa favoured the property and employing classes. There was precious little neutral about the master and servant laws of the 1913 Land Act, the Urban Areas Act, the Group Areas Act or the Prohibition of Illegal Settlement Act."
These and other issues expressed in statute form an asymmetrical property and power relation one might sum up as and I quote "I am your owner, you are the tenant, he is a squatter".
We then submit Honourable Chair, the international context and we will not repeat it because of the time, we will say in concluding the introductory piece, the challenge facing your Commission is considerable, as elusive as the truth was in many respects under the apartheid justice system so too will the Commission be confronted with many different forms than versions of truth. Justice, true and simple will in all likelihood not be achieved for the victims and survivors of apartheid. Reconciliation remains the greatest challenge. It cannot simply be legislated or prescribed from above, nor will it be achieved by mere apologies and contrite hearts. The Commission however holds out the desperate opportunity to create at the very least an environment in which the reconciliation of society can begin to take place.
Honourable Chair, to then deal with the substantive part of the submission, my colleague Mr Hussein will talk to us about the legal response to legislative and executive actions assisted by Michelle Norton. I hand over to Zanade.
CHAIRPERSON: Thank you very much. Please Mr Hussein and ...
MR HUSSEIN: Fellow Commissioners and Minister of Justice, friends, ladies and gentlemen, colleagues, I’ve been suitably intimidated by the Chairperson to give you anything but the briefest of précis of the section which I have to deal with and so I will proceed to be very, very quick.
Firstly, on page 3, Mr Chairperson, we deal with the legislative framework and executive implementation around the construction and maintenance of apartheid. We have listed all of the Acts and their consequences on page 3. It is apparent that there were dozens of Acts, a plethora of legislation backed by executive decision which the State used for its dehumanising of people and for it’s destructive social engineering.
The powers provided in these statutes were used to the full by the authorities in vigorously implementing the government’s objectives. Under the Pass laws which were repealed only in 1986 an estimated 12 million blacks were arrested between 1948 and 1985. By the end of 1975 only approximately 1600 white families had been moved from their homes and resettled in group areas compared with 58 900 coloured families and 30 700 Indian families.
An estimated 3.5 million South Africans were subjected to forced removals between 1960 and 1982 under the myriad of laws constructed for this purpose.
The contribution in response of lawyers - Mr Chair, when we look at this I think the context is properly provided by having regard to what Sir Seedat Ramphal, QC the former Secretary General of the Commonwealth remarked, and this is not in your submission. He said -
"The law itself may be flawed from time to time everywhere it will be but for so long as lawyers worship at the altar of justice there is hope for social redemption. It is when as lawyers we become ritual votaries of the legal order that justice is endangered and we ourselves cease to be worthy of society’s esteem. We simply cannot opt out making a sterile professionalism a masquerade for inertia".
Most of the legal practitioners, members of the Judiciary in South Africa did not make justice their altar during the dark days of apartheid, rather they sought refuge in unbridled positivism proclaiming that it is not part of the lawyer’s duty to reform the law in order to make it accord with justice but that such reform is a matter for the duly constituted political authority. The fact that such political authority was constituted in an illegitimate, undemocratic and racist manner made no difference to their beliefs. And Mr Chair, this is an important issue, this question of positivism. Lawyers have argued, will continue to argue and argue today, we were simply there at the time to administer the law, we couldn’t make it, now, that is a noble concept provided that the organ making the law is a democratic one, that your parliament is democratic, when that is not so, and when you have a parliament which is merely a chamber for legitimising oppression then you do not have a proper parliament, you do not have a proper law. So to argue as the positivists do, that we were simply there to apply the law is taking cosy refuge in this positivism and I submit a refuge which they are not entitled to and this will underpin a lot of our submissions to come.
The development and practice of law in South Africa occurred in a dichotomous way, laws which denied the majority of the people basic human rights, which demonised communities and which were the mortar and brick of one of the most repressive systems witnessed in modern times were by and large not attacked with the necessary vigour by South African lawyers.
On the other hand South African lawyers excelled in the formulation and application of other branches of the law which did not have a direct bearing on human rights such as Company Law, delict, the Law of Contracts, Property Law etc. They argued that they were professionals who were there to apply the law, they were not there to challenge the laws that were made. An excuse was found for their inertia in sterile professionalism as Sir Ramphal puts it, worse still, as we will indicate in the course of our submission, there was a significant number which went beyond giving a spurious air of respectability to the South African legal system by actively defending it even in its most inhumane manifestations to the hilt.
Relatively few lawyers made themselves available to represent or advise the victims of state action. It was only from the late 1970’s when there was a network of NGO’s and public interest institutions with a committed core of paralegals, community activists and lawyers that the unprofitable area of defending people against the unjust laws of the past was actually given attention.
In the rural areas lawyers were scarce and that is where apartheid had it’s most severe impact. The need for legal assistance at the time was enormous. The late Oliver Tambo’s description of the daily scene at the offices of Mandela and Tambo in the early 1950’s tell the story. I quote:
"To reach our desks each morning Nelson and I ran the gauntlet of patient queues of people overflowing from the chairs in the waiting room into the corridors. Weekly we interviewed the delegations of grizzled weather-worn peasants from the countryside who came to tell us how many generations their families had worked a little piece of land from which they were now being ejected. Our buff office files carried thousands of similar stories from the towns and if and when we started our law partnership, we had not been rebels against South African apartheid, our experiences in our offices would have remedied the deficiency."
The consequences of this neglect by lawyers of their obligations were far-reaching. John Jackson has observed -
"If every white lawyer was required to spend one hour in the so-called Bantu Commissioners Court every Monday he could not fail to change his view of South African justice. Unfortunately very few would agree to represent a black in these Courts especially since there is little chance of being paid. Most attorneys are far happier pretending that such courts and such proceedings do not exist."
We quote further on in that submission also from John Jackson which I will omit - the centrality of legal measures meant that lawyers, prosecutors, magistrates and judges were key role players in the apartheid system. Millions of individuals criminally prosecuted for contravention of apartheid laws came before the courts.
Countless victims of government action under these laws sought the protection of the courts, to little avail. Magistrates in particular performed a range of functions in both their administrative and their judicial capacities. Their systematic in unquestioning implementation of apartheid measures leaves no question in one’s mind that they were willing partners of the government. When one looks at judicial decisions, judges were inevitably called upon to review actions and decisions taken under the aforementioned legislation. In their review of the executive implementation of the apartheid project, the record of our Supreme Court judges leaves a great deal to be desired.
Whilst there is evidence, mostly in the first part of the 1950’s and the latter half of the 1980’s of judicial constraint of the authorities, the predominant picture is one of uncritical vindication of unrestrained executive and administrative power.
In key cases of the 1950’s before the enactment of the Separate Amenities Act, segregatory regulations implemented in a discriminatory manner were invalidated by the Appellate Division. However, by the end of that decade in which the Appellate Division twice refused to validate the government’s unconstitutional disenfranchisement of so-called coloured South Africans, a court expanded by the appointment of five new judges displayed no inclination to compromise the apartheid project.
Residential segregation was upheld in the 1959 decision in Cassiem, and the reference is in the footnote, and a year later the Appellate Division sanctioned separate amenities in courts themselves by upholding the conviction for contempt of a law clerk, the last Mr Godfrey Peche, for his refusal to stand at a separate table reserved for blacks while presenting a case in the magistrate’s court.
Although the reservation of separate tables had not been effected in accordance with the Separate Amenities Act the court was prepared to assess the "reasonableness" of that reservation in the light of the import and ethos of that legislation. The fact, said the Chief Justice, that such action could have been taken is not entirely irrelevant. It shows that the distinction drawn by the provision of separate tables in this magistrate’s court is of ...(indistinct) sanctioned by the legislature and makes it more difficult to attack the validity of the magistrate’s order on the grounds of "unreasonableness".
The case of Lock-out was an early landmark on the road of judicial acquiescence in the apartheid experiment. Validating a proclamation which divided the City of Durban into group areas, allocating the best areas to whites and leaving relocated Indians without suitable accommodation in the interim, the highest court took a wholly uncritical approach of the legislation which was to cause untold suffering for decades.
Holmes J held that -
"The power to discriminate unreasonably while not expressly given in the act was clearly implied. Despite the absence of express authority in the Act, despite government assurances to parliament in introducing the legislation that it was not intended to apply unequally and in spite of the legally supportable alternative approach found in the judgment of the court a quo, the court including the Chief Justice, Steyn C J and Ogilvy Thompson JA who succeeded him took the view, and this is important to note, Mr Chairperson.
"The Group Areas Act represents a colossal social experiment in the long term policy. It necessarily involves the movement out of group areas of numbers of people throughout the country. Parliament must have envisaged that compulsory shifts of persons occupying certain areas would inevitably cause disruption and within the foreseeable future substantial inequalities.
Whether all of this will prove to be for common wheel of all of the inhabitants is not for the court to decide (a la positivism). The question before this Court is the purely legal one whether this piece of legislation impliedly authorises towards the attainment of its goal the more immediate and foreseeable discriminatory results complained of in this case, in my view for the reason given, it manifestly does.
The legacy of this decision it has been observed was two and half decades of dereliction of duty and we refer to what Prof Dyzenhaus said earlier this morning about dereliction of duty by the Courts which have invariably relied on the Lock-out case to reject challenges based on the unreasonable exercise of powers under the act or the absence of alternative accommodation. As in Lock-out there was no indication in these judgments that judges felt compelled against their inclination to sanction apartheid policy.
We then go on to quote another Appellate Division case which confirmed Lock-out. Further down we then mention the case of Govender, where Judge Goldstone held that the magistrate’s power to order ejectment following conviction in terms of Section 26 of the Act was a discretionary and not obligatory one.
So therefore, Mr Chairperson, there was in fact room for manoeuvre for judges within that repressive legislation, and depending on the commitments or otherwise of those judges they either found room to manoeuvre for the sake of Human Rights or found no room to manoeuvre.
We quote thereafter what Judge Didcott mentioned in 1982 regarding the so-called Bantu Urban Areas Consolidation Act. I am running out of time so I will not quote that.
We deal thereafter with the Magopa case. This was a case where the Appellate Division afforded the greatest protection possible against drastic executive powers of removal, but unfortunately without any consequent relief for the Bakwena people who had vacated the land after the failure of their urgent application to the Supreme Court for an interdict restraining their threatened removal. The matter turned on the interpretation of the provision of the Black Administration Act in terms of which the removal order was issued. In particular the form of parliamentary resolution required to authorise a withdrawal of a community. Adopting an interpretation which offered the least available protection to a community under threat of removal in line with the decision almost ten years earlier of Seyawula, Van Dyk J dismissed the application in the Supreme Court and refused the applicant leave to appeal against his decision. The Bakwena tribe pursued their final legal option petitioning the Chief Justice for leave to appeal.
Whilst their petition was pending the Bakwena people were removed at gun-point from their land. Leave to appeal was granted three months later. By the time they had succeeded in their appeal the court effectively finding the removal ought to have been invalid and concluding the court should have granted them interim relief the land had been expropriated by the State.
The Magopa case is one of the countless instances in which judicial restraint of executive powers was defeated by executive action or by immediate statutory changes to close the gaps in the law.
But also forcefully illustrated in this case is the judicial choice available in the interpretation of oppressive legislative provisions. The Appeal Court supported the interpretation which had been rejected with tragic consequences for thousands of people in two previous cases in the Supreme Court. Not only had Van Dyk J rejected this more protective interpretation but he had failed to accommodate the possibility of a different interpretation by refusing the applicant leave to appeal against his decision substantially delaying the applicant’s access to justice.
The observations made here by the role of the lawyers were even more strongly demonstrated in relation to the implementation of the security system which the State put into place which was designed to overcome resistance to the apartheid government. For the victims of this system legal relief was far more elusive with judges far less inclined to restrain an all powerful security machinery.
Mr Chairperson, my colleague, Miss Michelle Norton will deal with the maintenance of state security and the legislative frameworks surrounding it.
CHAIRPERSON: Thank you very, very much. Miss Norton.
MS NORTON: Thank you Chairperson.
In this part of our submission we are going to look at the role of lawyers in respect of legislative and executive action taken to suppress political resistance.
During the decades of National Party rule the executive authorities acquired increasingly broad statutory powers to restrain opponents of the government. While there can be no doubt that the primary responsibility for South Africa’s repressive so-called security laws lies with Parliament there were very significant ways in which lawyers facilitated these statutory developments.
Judges on occasions contributed substantially to legislative measures by their recommendations which they made as members of Commissions of Inquiry.
The 1982 Internal Security Act which sanctioned and consolidated existing security measures was the product of a commission headed by Appeal Court Judge Rabie. The government focused heavily on the judges role in its efforts to legitimise the legislation. The Minister of Law and Order described the Bill as a culmination of a thorough investigation by an independent Commission of Inquiry which emphasised the necessity for the measures contained in this Bill.
Mr Justice Snyman, who chaired the Commission of Inquiry into the events of the Paarl uprising in November 1962 went far beyond his terms of reference to recommend a range of special procedural provisions to deal with the PAC. His recommendations, which are detailed in our written submission, show the judge in the role of an enthusiastic partner to government in conceiving and crafting security legislation which deviated from common law.
The response of lawyers and legal academics to these legislative developments was on the whole deplorable. The structures representing the organised legal profession generally failed to condemn or even to criticise the increasing inroads into the rule of law. Professional protest, where it did take place, was made by individual structures of the attorneys and advocates profession. Neither the General Council of the Bar or the Association of Law Society’s took any significant united action over the years. When advocates condemned in August 1985 the indemnity and ouster provision in the emergency regulations this was done in the name of several individual bar structures.
We trust that the Commission will hear from the GCB the rationale behind its decision to engage in protest behind closed doors. In 1970 the Chairperson of the GCB indicated that the organisation had at times made carefully documented and justified protests but without publicity. In the case of the Terrorism Act he said "we put many of our misgivings to the Minister and to other government bodies which may not be mentioned."
The repeated failure of professional structures to take a unified public position on human rights violations suggests an absence of fundamental values which they were bound to uphold, defend and promote. The general reticence of the legal profession could not but have facilitated the government’s objectives. In 1971 the late Barend van Niekerk warned lawyers that by remaining silent at the helm of their clinking cash registers they were not only perpetuating injustices but were also lending them the aura of respectability. This is an exceptional comment, Chairperson, from a legal academic at this time. Although there were notable exceptions legal academics, particularly in the ‘60s and ‘70s, generally adopted a complacent and non-critical attitude towards laws which eroded fundamental rights and values.
Turning to executive action, it is clear that extensive use was made by the security apparatus of the statutory powers provided. In the period that we have been looking at thousands of individuals were subjected to banning orders, tens of thousands ...(tape ends)..and perpetrators of abuses which were carried out in the guise of the legal activity. It is extremely important then to consider what protection or recourse our legal system offered to the victims of these violations.
The courts, with a few distinctive exceptions, failed to use the power which they had to check the authorities and ameliorate the effects of this repressive legislation. Judges failed to circumscribe the subjective discretion of officials in their decisions to ban, to restrict and to detain individuals. In their own proceedings they took a passive and uncritical approach to statutory intrusions on the normal criminal process.
Judicial passivity, however, had it’s most serious consequence in relation to detainees who were the most vulnerable victims of State actions. The courts imposed very few constraints on officials exercising the power to effect detention. With some well-known exceptions in the middle ‘80s, empowering provisions were interpreted widely and re-arrest immediately upon release from detection was sanctioned. When the conditions in which detainees were held came under judicial scrutiny the conditions imposed by the authorities were general upheld denying detainees their most fundamental rights. In addition the Courts took a very narrow view of their own power to investigate allegations of abuse in detention.
The record of judicial review of executive action is disappointing for decisions consistently favouring the executive. But what is most remarkable in these cases is the absence of any judicial condemnation of the laws in question. Judges have answered criticism of their role by pointing to a powerlessness in the face of repressive laws. Where then is the articulation in their judgments of the constraints under which they were operating and the regret with which they facilitated governmental policy?
In an area where judges had much greater discretion, namely the assessment of evidence obtained in detention, they missed a significant opportunity to check police abuses. Courts steadily refused to hold that solitary confinement on it’s own could affect the voluntariness of a statement and render it inadmissible. In the case of Gwala the Court accepted the evidence of a detainee who had been solitary confinement for over 500 days. The Courts ignored expert scientific evidence of the mental and psychological effects of solitary confinement and their evidential implications.
Trial judges had a large measure of latitude in assessing the credibility of witness and determining what was reliable evidence. Judges in political trials were exposed to detailed accounts by accused persons and witnesses of abuses suffered in detention. Faced with conflicting versions of what had happened in the secrecy of interrogation facilities judges in their overwhelming majority of cases rejected allegations of police abuses and admitted the evidence in question.
Striking once again in all of these cases is the categorical nature of trial judges’ assessments of the evidence of the police on the one hand and detainees on the other. We recognise that it may be easy with the benefit of hindsight and the evidence of systematic torture before the TRC to judge the judges’ findings but there was compelling extraneous evidences that abuses were taking place.
As Minister Mac Maharaj pointed out in an article in the weekend newspapers -
"Deaths in detention were at all times an index of the abuses which were taking place. In 1963, two people died, by 1971 it was 19 and in 1877 Steve Biko became the 46th person to die in detention."
Judges persistently rejected outright the allegations of detainees before them. It is difficult, given the context, to accept that judges exercised the caution which the law and the circumstances demanded of them in assessing evidence of what had happened in confinement.
In the case of the late Linda Magali, already documented before this Commission, Mr Justice F Steyn found a confession to have been freely and voluntarily made despite compelling evidence, two broken front teeth, that the accused had been assaulted in detention. The judge’s character assessment was vital to his acceptance of the evidence of the Security police over that of the accused and other witnesses held in detention. He found that Lt. Struwig is physically and mentally a strong, impressive but peaceful person. As a witness he gave an impression of credibility and honesty. In my view it clashes with all reasonable probability that a man in his position and experience in the Special Branches of the Police would make use of physical force to intimidate a witness. In my opinion it is more probable that a group of young educated opponents of the existing order could conspire to testify that they were forced by mistreatment to such confessions.
The reversal of Judge Steyn’s decision on appeal is one of the few cases where the courts found that torture had indeed taken place. The unavoidable evidence of broken teeth undoubtedly made this conclusion inescapable. Detainees whose bruises and lacerations had healed and detainees whose suffering was of a psychological nature had very little success in persuading the courts of their ill-treatment. The late Harry Gwala and his co-accused made consistent allegations of brutal and systematic assault and torture during their trial in 1977. Their allegations were particularly pertinent given the fact that their comrade and co-detainee Joseph Mdluli had died the day after they were all detained.
Judge Howard categorically rejected all the defendants’ allegations of assault and completed accepted the version of the Security Police. He found the various police offices to be mild- mannered, excellent witnesses, patently honest, completely reliable and trustworthy, a thorough gentleman and a gentle giant.
The defendants on the other hand were hesitant and nervous and therefore untruthful, not a frank or satisfactory witness, a liar, thoroughly discredited and had deliberately fabricated evidence. Harry Gwala, though not obviously untruthful did not make a favourable impression and was simulating when he appeared to be overcome by emotion on describing his treatment in detention. The judge had reservations about whether Harold Ngcana’s distress was genuine.
From the middle ‘80’s, Chairperson, more and more evidence of abuses was published. In a major study published by the UCT Institute of Criminology in 1985, Don Foster and Diane Sandler found that 83% of detainees interviewed had been subjected to some form of physical abuse. They called for safeguards to be implemented as a matter or urgency and argued that until these were in place, courts of law should disregard all detainee evidence. Few changes however were evident in the courts’ approach. The study drew the condemnation of the government and Professor Foster’s reliability as an expert witness was challenged in gruelling cross-examination by the State.
Mr Justice Friedman, of the Cape Provincial Division, is understood to have resigned from the Board of the Institute of Criminology in order not to be associated with the publication of the study.
Remarkable, once again in cases dealing with torture allegations is the absence of firm statements of the courts’ attitude to compulsion of evidence by unlawful methods. Even in finding evidence of barbaric ill-treatment in the Mogali case the Appellate Division failed to reprimand the police offices responsible or to condemn outright the abuse of detention.
Visits by magistrates were one of the few statutory mechanisms of protection for detainees. Magistrates were often the only persons outside the Security Branch authorised to visit and report on detainees. There is overwhelming evidence, however, that magistrates failed to provide any significant protection for detainees suffering abuse.
Brig. Muller of the Johannesburg Security Branch testified at the Aggett inquest that he had never met a magistrate visiting a detainee on the 10th Floor of John Vorster Square during the six years that he was stationed there. Where visits were compulsory, detainees have reported "superficial visits and interviews". A major limitation of this so-called safeguard lay in the magistrate’s inability as State officials to inspire the trust of detainees. Indeed magistrates were often perceived to be hostile and as Michael Dingaki has expressed it, a detainee needed two things, guts to report in such an atmosphere and extreme optimism to expect the slightest good to come out of a complaint to a visiting magistrate.
Another flaw of the magisterial visit was that magistrate’s reports, if anything significant was reported, were regarded as internal documents. Detainee Billy Niye, who suffered a perforated eardrum and a damaged eye at the hands of Security police expressed his frustration in a statement to a magistrate who had visited him.
"I showed you the injury to my eye when you visited me last week, I also told you of the injury to my ear. I requested that you bring this to the attention of a Judge and you said you were not in a position to do so. You said you could only report to the Director of Security Legislation. I find myself in a helpless position in the hands of the police."
Given the closed system of magisterial visits, Chairperson, it is crucial that this Commission examine magistrates and the reports which they filed to determine how their duty was performed, how often reports of abuses were made and if they were, what action, if any, was taken by the authorities.
Also relevant is the role of the Supreme Court judges in respect of visits to detainees. Did judges take any steps to assert their right under the Prisons Act to visit any prisoner at any time? The legal system also failed in many ways to provide recourse or redress for victims of official abuse. There are very few examples of police officers being prosecuted for assaults on detainees, where statistics do exist they reveal a shockingly low percentage of prosecutions following detainee allegations of assault by police officers.
In the Magali case the Appellate Division found that the police officers had severely assaulted Linda Magali to compile a confession and named Sgt Mateo and Lt Struwig as the main perpetrators. The Attorney General failed to prosecute these or any other members of the force implicated in the assault.
Attorneys General also failed to prosecute a great proportion of the police officers implicated in the deaths of government opponents. Attorney General Niel Rossouw declined to prosecute any of the nine police officers who fired indiscriminately on Athlone youths in the Trojan Horse tragedy of 1985. His decision was made in the face of an inquest court finding that police officers were responsible for killing of three youths and that there was negligence on their part.
The record of Attorneys General raises serious questions about the proper exercise of their duties in a context where their action or inaction had strong implications for the way in which members of the police force used their wide powers.
It is, in NADEL’s submission imperative that the Commission hear from Attorneys General how they exercised their discretion in these matters. Where the law did take its course the outcome frequently perpetuated a sense of injustice. The police officers found guilty of assaulting Billy Niye and injuring his eye and ear were fined R175 and R50 respectively. In those few instances where members of the Security branch were prosecuted following the deaths of activists, convictions were extremely uncommon.
The inquest mechanism consistently failed to provide and objective determination of facts. There was little confidence in the capacity of magistrates as State officials to find the truth in cases where State officials were under suspicion. The magistrate conducting the inquest into the death of Alphius Nkabinda at Mpofomeni in 1987 had in his executive capacity issued the permit for the Inkatha Rally that lead to the killings.
Inquests into the death of government opponents have invariably been cursory, superficial and produced verdicts exonerating suspected of perpetrators. In the procedures they adopted in their neglect of evidence and in the impression of hurried conclusion, magistrates conducting inquests created a strong impression that discovery of the truth was subverted in the interest of protecting police.
In conclusion, Chairperson, lawyers’ performance in the Security sphere generally suggests not only a failure to protect the victims but a failure to curb the excesses of the authorities.
Chairperson, in this section we have referred to the Trojan Horse case in 1985, Mr Brent Williams, an Attorney in Ebrahim & Co. worked very closely on this case and will tell the Commission more about the case.
CHAIRPERSON: Thank you very much. Mr Ebrahim.
MR EBRAHIM:: Thank you Chairperson and fellow Commissioners and colleagues.
We felt it important to highlight the Trojan Horse case because it represents in some respects a turning of the tables on the Security establishment and it shows how judges exercised their discretion when it was the Security Forces that had been on trial.
The Commission is aware of and has heard evidence of the police operation on the 15th October 1985 that subsequently gained notoriety as the Trojan Horse tragedy which had claimed the lives of Shaun Magmoet, then 16 years old, Michael Miranda, then 11 years old and Jonathan Claasen, then 18 years old. We want to say that this particular insert is dedicated to the memories of Shaun, Michael and Jonathan and other victims of violation of human rights by the police and Security Forces in particular.
It is dedicated to those like Shaun, Michael and Jonathan who were hardly adults, let alone activists and yet they had become targets of the Apartheid Regime.
We will submit that in this particular case it is a tragic example of how our justice system at the time from the police right through to the highest court in this country had failed it’s citizens by not protecting them from the excesses of the executive and its administration. Also the absence of the rule of law had not merely failed citizens of the country but they permitted the grotesque ...(indistinct) of the apartheid security machine’s capacity to ever increasing levels of violence and brutality.
Although the deaths resulting from the police brutality, evidenced by the Trojan Horse case may not be considered remarkable within the context of human rights violations that were pervading the country at that time, in 1985 and 1986, but it is the nature of that operation that acquired new and sinister significance as a means of oppression. The Apartheid Regime, despite arming itself with draconian security legislation an over-zealous police force and prosecuting authority, a compliant bench, we would submit, it was beginning to publicly engage in new guerrilla-type sting operations against the rebelling communities and in particular against the youth.
For the convenience of the Commission we would just want to highlight the salient features of the planning and execution of the Trojan Horse operation and then perhaps proceed to make some comments on the exercise of the judicial discretion in the trial itself and the assumptions made by the trial judge.
The salient features of the Trojan Horse matter for those who do not know was as follows:
On the 15th October 1985 in an attempt to quell burgeoning unrest in Athlone, a densely populated area in Cape Town, a railway delivery truck loaded with large wooden crates, and in which eight policemen armed with shotguns and side arms were concealed was sent on patrol. To all outward appearances the vehicle was an ordinary delivery vehicle meant to elicit the attention of stone-throwers as a soft target. By virtue of the police on the vehicle being armed only with shotguns loaded with lethal triple A ammunition and side arms and no teargas or lighter crowd control birdshot, it was apparent that the intended response to any attack upon that truck was to be punitive and lethal.
On it’s first pass along Thornton Road the truck had failed to attract the attention of anybody. On it’s second pass it was stoned by members of a crowd and the crowd was estimated in size to be between 50 and 200, however as soon as the stoning of that truck commenced the policemen, who had been concealed on the back of the truck, stood up and commenced indiscriminately firing into the crowd with their shotguns even before the truck had stopped. No warning shots had been fired and at the end of a continuous fusillade of shotgun fire, in an approximately 360 degree radius lasting approximately 17 to 20 seconds, 39 rounds had been fired.
As a result of that shooting Shaun Magmoed, Michael Miranda and Jonathan Claasen were killed, on the spot, and at least 15 other people were wounded. People were arrested at the scene by the police subsequently included some of those who were injured were subsequently prosecuted for public violence at a trial . . .
CHAIRPERSON: Excuse me, I don’t want to interrupt you, I want to find out how much more you have got because we have got the submission of the Minister to come and then there is a panel discussion. Ten more minutes.
MR EBRAHIM: I will try to be brief.
CHAIRPERSON: No I mean in total.
MR EBRAHIM: I will try to be brief. I think that the point being raised about judicial discretion is quite considerable.
If I can then deal with the question of the judicial discretion subsequent to that, it is now trite that subsequent to that there was an inquest at which the magistrate found that the police were responsible and thereafter the Attorney General, despite compelling evidence that the policemen had acted unlawfully and excessively refused to prosecute the matter.
The trial judge in this particular case had made certain assumptions and findings and I will deal briefly with some of them.
He found for example that the fatal shots that had been fired at the crowd was fired in a forward and downward direction and at the time the deceased, in this particular case Shaun Magmoet, was facing away from the direction and in all probability running away. In other words the predominating amount of shot on Shaun Magmoet’s body was in his back. The probabilities, the judge found, pointed strongly to the deceased not having been involved in the stoning of the truck. The judge accepted as a fact that no warning of any kind was given by the accused on the truck prior to them opening fire.
The court also found that the shot used by the police was relatively heavy and it was so obviously dangerous to life that there was an irresistible inference that each and every one of the accused subjectively knew of its lethal potentiality. The judge also said there is a substantial body of evidence which points to the existence of the purpose of the operation being illegal and namely a punitive expedition.
There are strong indications, he said, of a common purpose on the part of the accused to act illegally. The whole intent of the operation was so obviously to present would-be stone throwers with an apparent soft target that the truck was likely to be attacked. It is so obvious the judge said, that it must have been anticipated by all the accused that there would be an armed response to the attack. He also found that the operation had quite clearly been specially planned.
Despite these factual findings, despite the uncontroverted evidence presented by the prosecution and the fact that the killing of the deceased in all the circumstances was not justified on the basis of either self defence nor necessity, nor pursuant to the provisions of Section 49 of the Criminal Procedure Act, the judge acquitted all the accused.
The trial court in discharging all the accused on the basis that the prosecution had not proven beyond a reasonable doubt a common purpose on the part to commit murder, made a number of assumptions in favour of the accused and ultimately the executive despite the absence of any testimony on their part. Some of these assumptions were the following:
The police were confronted with an exceedingly difficult situation which was deteriorating which required some drastic action. A resort the judge said, to the unconventional would not in the circumstances be altogether unexpected. One would have expected that with 39 shots of mainly triple A ammunition fired from nine trained men at virtually point blank range, the loss of life would have been far greater than it was.
The trial judge also found that there was a certain improbability in high-ranking officers planning an operation that was to their knowledge illegal. I think today that the Commission knows the extent to which high ranking officers well knew and were part of covert operations of this particular nature.
What vindicates the view of NADEL and the attorneys who acted in this matter are the comments of the Appellate Division and in particularly the comments of Justice Corbett regarding this particular matter. He said, and I quote:
"Another Court seized of the case on the merits may well have concluded that these strong indications taken in conjunction with the failure of the accused to enter the witness box were cogent enough to secure the conviction of the respondents."
That is our Appellate Division. The matter had been taken on review or certain questions of law had asked to be reserved and I am not going to burden the Commission with what those questions of law were, but one of them related to the admissibility of evidence of one of the accused. The Appellate Division found that the trial court had incorrectly rejected the admission of that evidence. The Appellate Division accepted that it, in its turn, was seized with a discretion as to what to do in that situation. Did it order a re-trial of that particular accused bearing in mind the violation of the rights, in this particular situation the fact that there were children involved, the Appellate Division nonetheless decided that it was not going to order a trial de novo and that it would not reverse the acquittal at least of accused 4, one of the accused in the matter.
If I can just make one final point, Chair. We have spoken a lot about the role of the judges in this particular situation and it is quite clear that judges held a profound position in the judicial system. What we mustn’t lose sight of, however, is the fact that most of our people’s experience of the justice system was predominantly at a lower court level. We mustn’t lose sight of the fact that some of the basic and fundamental violations of the rule of law actually occurred at a magistrate’s court level where people were denied their rights to legal representation prior to our constitution, where people were not treated with dignity and we ask the question as well - why have the magistrates not come forward? They were the ones who prosecuted innumerable public violence offences. In many of those cases the attorneys who acted on behalf of those accused were as much on trial as the accused themselves and we ask the question - why are they not here as well?
Thank you.
CHAIRPERSON: I hope you don’t feel too thwarted?
MR EBRAHIM: Absolutely no.
CHAIRPERSON: Your face was worrying me. Thank you very much.
NADEL MEMBER: Thanks Mr Chairperson. On Page 36 we deal with the judicial imposition of the death penalty and we have divided that submission into the following headings: Firstly, Arbitrariness; secondly, Racial and Political Bias, third Controversial Convictions and Circumstances overlooked in sentencing determination, carelessness, inadequate safeguards. After Paula McBride’s submission this morning one might well ask if there is anything further to be said about the Death Penalty. I am just going to highlight a few issues from our submission. We mention on page 36 the high number of executions between 1985 and the middle of 1988, South Africa carried out the second highest number of executions, 537 in the world. Between 1910 and 1989 over 4200 persons were executed. Blacks were executed in gross disproportion to their percentage representation in the population. Between 1980 and 1988, 97 percent of the 1070 persons hanged were black. A survey in 1989 revealed that the average person on death row is black, comes from a financially disadvantaged home, was raised by a single parent, did not complete school and is an unskilled or semi-skilled labourer. The significance of that is self -evident. I will skip over the section dealing with Arbitrariness and come to Racial and Political Bias. In footnote 164, I think it is useful to note, Mr Chair, the case quoted here. There was a sentence of a white farmer by Strydom J which was reversed by the Appellate Division. Strydom J in 1988 heard the case of this white farmer, a man named Vorster who tortured a black employee to death over two days for accidentally running over two of the farmer’s dogs eight weeks earlier. The farmer was given a suspended five year jail sentence, a R3 000 fine and an order to pay restitution of R130.00 per month for five years.
This was overturned on appeal. The AD calling it a fundamentally fallacious and a serious misdirection. The speaker of the Assembly incidentally refused to allow Helen Suzman to petition for Strydom J’s removal on the ground that she had failed to state a prima facie case.
Now it is sentences like this in this Vorster case, Mr Chairperson, which prompts NADEL to ask judges, magistrates, judicial officers, come forward, bear your soul to the nation and come and explain sentences like this, come and explain the uneven approach that you had, the racial bias, it was so evident in your sentencing. In now notorious remarks Supreme Court judges have taken judicial notice of the fact that blacks can recognise people they know in comparative darkness. That black women submit to rape without protest. In 1964 Van der Reit JP remarked:
"The Native...." as he called it,
"vis a vis the European in giving evidence is so prone to exaggeration that it is often impossible to distinguish the truth from fiction. There are other factors which militate strongly against the acceptance of the allegations of the accused, again resulting largely from the inherent foolishness of the Bantu character’.
Now that’s a Supreme Court judge saying this in open court and the question is asked: "Do we have to account for anything? Do we have to answer for anything?" Political offenders, Potlaka Lebalo, Joe Slovo, Harold Wolpe or Arthur Goldrich in particular, appearing on a capital charge before Munnik J in the 1960’s might have reason to fear judicial prejudice had he known of this very judge’s remarks to PAC activist L Noyokana in 1967 and the judge said as follows:
"No Country, no government, no people can allow it’s safety or the safety of the State to be threatened by people taking the law into their own hands. In such attempts to divert the country must be stamped out ruthlessly."
...(tape ends)
"The man who started all this trouble, Lebalo, is not amongst those who have been sentenced by the court or apprehended by the police, but when he addressed you he did not tell you that he was going to see that he wasn’t caught, neither did the white people who fled the country after stirring up all this trouble, the Slovo’s and the Goldrich’s and the Wolpes. They are touring Europe at the moment, living on the monies which are collected from people who are misguided enough to support them".
Talk about justice.
I move onto the last aspect under this section, Carelessness. In David Brooke’s interview with an unnamed Durban judge revealed a very cleverly approach to sentencing.
"The Durban judge told me on occasion he had even imposed death sentences merely to frighten local criminals while fully intending to write to the Minister of Justice to recommend clemency.’
He didn’t know whether these death sentences had actually been commuted. He felt sure they had been but he had never enquired. Brooke adds -
"If he had, he might have been surprised. The judge had informed me that the State President commutes over 80% of the death sentences every year, but the actual commutation rate last year was 15%, less than a fifth of what he believed."
Rendering these factors even more problematic was the fact that until 1990 the only safeguards against wrong death sentences were appeal by a higher court and executive clemency. There was, however, no automatic right of appeal and research has revealed that leave to appeal was refused by the trial judge in a very high percentage of cases. In 120 completed hearings in the Cape Provincial Division between 1 January 1986 and December 1988 leave to appeal was granted in only 40 cases and in a not insignificant number of those cases which in the same study went on appeal, 8 out of 31 the death sentence was overturned. Thank you.
CHAIRPERSON: Thank you very much. What happens now?
NADEL MEMBER: Thank you Honourable Chair. As you will note from the document before you we are almost on the home stretch even though we are into injury time. So if you would allow us the indulgence of finishing the fourth section and my colleague Dali will take us home as it were.
CHAIRPERSON: Yes, well how are you feeling? It is a free country. Thank you very much for your patience, Mr Minister.
NADEL MEMBER: We are indebted to you Honourable Chair and the Minister. Honourable Chair the fourth section deals with the institutional and ideological context of the legal systems failure to protect rights and in this section we argue that one has to look at the roots of the failure is really to be found in the institutions and the ideological perspectives of their functionaries. The section deals with the racially exclusive institutions and when we need say no more than note the separate universities, the further institution we note the Pretoria Bar, and tomorrow we would hear more from the General Council of the Bar, the intransigence of that bar, the structures administering justice. We note all too clearly the magistracy which was predominantly white male; we note all too clearly clerks of courts, orderlies, the prisoner’s friends ironically were all whites; we also bring attention to the position of the late Duma Nokwe who was the first African to practice as an advocate in the Transvaal in ’65 where a special robing room was set up for him in the Supreme Court. We also give you very interesting statistics from the Department of Justice with regard to the sizes of these cloaking rooms of whites and non-whites. We made once again reference to the celebrated and really the unfortunate case of the late Peche and the Appellate Division’s attitude to the separation of the facilities. We also remind you, Honourable Chair, that in the old days the Courts were divided by that panel in-between, one side it was Blacks and the other side of course was Europeans. But we note that there were certain judges who were not prepared to brook such separate amenities in their courts. We note the Justice Beyers and Justice Fagan in the Cape. We also talk about racism in the courts which affected black petitioners. Nelson Mandela recalls the frequent use of refusal by white witnesses to answer questions from black attorneys. Instead of citing them for contempt of court the magistrate would then pose the questions they would not answer from me. We talk about the practice in the courts in the Law Reports the functionaries of the legal system to refer to black people merely by their first names, and we talk about the instance of Bongani who was referred to as a witness and throughout the entire script of the proceedings Bongani’s surname is not mentioned once at all.
We refer to the role of magistrates in juvenile matters where special efforts and attempts were made to find the families of juveniles, particularly of white, little or nothing was done where it was black juveniles. Social Welfare reports were sought for white juvenile offenders, hardly ever for black juvenile offenders.
We then talk about the obstacles to legal representation of victims of violations. Mandela notes: "Working as a lawyer in South Africa meant operating under a debased system of justice", and that really speaks for itself. We refer to the limited pool of lawyers, and a single point we wish to make here, Honourable Chair, is that those lawyers who in fact became involved in political cases did so predominantly as a result of their own strong political consciousness and it is an important point to note. We talk about the restriction of black practitioners, their freedom of movement in offices and we recall all too clearly how even black lawyers like everybody else were subject to pass stoppages, a black lawyer has not been able to open up a practice in a white group area. We remind ourselves of the indignity of the present Chief Justice who actually worked for many years in the law library of Johannesburg Bar because he could not occupy chambers in the building. I really hoped that he would be here today to tell us about those experiences. Funding. You would recall, Honourable Chair, that the banning of the South African Defence and Aid Fund(?) in ‘66 created a tremendous crisis for lawyers dealing with political matters. I think it is appropriate for us to pay tribute to the organisations such as IDEF, the South African Council of Churches with its Defendants Conference, we pay tribute to the Danes to the Norwegian Governments who made funds available for very many lawyers to protect people who were on trial. Its appropriate that this submission records the contribution and the role of those millions of people in the international community who were not only in solidarity but in fact made it possible for us to work at the courts ...(indistinct). There was discouragement and harassment of lawyers. Many instances of lawyers who themselves had become victims of the crisis and of the conflict that we were in. We remember most more appropriately the late Victoria and Griffiths Mxenge where as a result of not only their lawyer work but their political commitment had become victims of the conflict. We talk about communication and we as lawyers we remind ourselves all too clearly about when consulting with our clients in prison how difficult it was in the sight of lawyers and only when the Supreme Court laid down binnesig maar buite vehoor did warders then really respect the privacy of attorney / client communications. We also note under Section 29 the difficulty of detainees and our clients in communicating not only with their parents but also with their lawyers. Political trials and the location of those trials was often used by the apartheid state not only to frustrate the attendance by families but to frustrate proper legal representation. The Delmas trial is really the celebrated trial of taking a matter into what you would call the ‘gamadoolas’ where difficult not only for family but lawyers to attend to the matter. We talk about the role of the Public Prosecutor in shifting venues, the reference is made to the experiences of the Yengeni trialists after Section 29, six months were then brought to trial on their first date. The families were directed to a particular court whereas the matter was to be heard in a completely different court. In that court the Security Police and all other police had occupied the court completely. Under C we talk about the attenuated judicial independence; we talk about the magistrates and the all to obvious lack of independence of the magistracy. For a number of years they were regarded as no more than civil servants. A real extension of the Department of Justice and only recently was any attempt to give them some measure of independence. We also remind ourselves of the time when the magistrates in Durban were feted(?) to a video on ANC and UDF violence almost in preparation of their being able to preside over public violence matters. We recall the late Justice Milne who recommended that those magistrates who in fact attended that video sitting should not preside over those trials. With judges. Much has already been said but we point out how attenuated their independence was. The appointment of judges by the National Party; there is much evidence about the Rabie court and the selected group of judges who would preside predominantly over the emergency matters. We refer to the use of judges in Commissions of Inquiry and once again reference to the Rabie Commission of Inquiry but it is not only in that that we judge the independence of judges, but we also look more closely at their own role in the courts. And once again, Honourable Chair, we refer to a series of cases, but the most celebrated of which is none other than the comments of Justice M T Steyn in the Bloem matter which many lawyers know all too well where the judge made pretty strong political statements and one would have thought as an officer of the court would not have been appropriate to have done so. But those were certainly the influences on the judges. Lawyers conception of their own role. The avoidance of values, deniance of choice. We have heard this morning at length about the notion of parliamentary sovereignty and the extent to which much of the role of judges and lawyers were in fact hidden behind. The all ...(indistinct) notion of positivism under the parliamentary sovereignty notion. Little would be achieved in repeating that. We talk about the conception of choice, the extent there was a choice by very many of the judges, but failed to exercise it. Failure also by the judges to comment on unjust laws and comment has already been made about that. The lawyers embrace for a false(?) distinction between law and politics and that, Honourable Chair, takes us to our concluding part and we hand over to Dali Mpofo.
CHAIRPERSON: Here we come. Dali, thank you.
MR MPOFO: Thank you Honourable Chairperson. Mine has now become an easier task because of the pressures of time. I had intended to give you a few examples of my own experiences which I will not do, to allay your fears, as a young law student, as an attorney, as an advocate presently, as a detainee, as an accused in various, in other words gaining various perspectives to our legal system such as it was. I am quite sure that those stories would be of no value of particular to myself but would have been representative of what some of us as black lawyers have had to go through on either side of the legal system. As I have said I will not go into these stories. Unfortunately, I will now go into, I think the depressing part has been quite long. Mine is simply to say that from all what has been said here, the aim is not simply to recount the history, that has been well documented and could have been done in other forums as well, but what are we about here, this is the Truth and Reconciliation Commission. In NADEL’s submission these chilly stories and the gory details that have been revealed are simply used to take us to the next step which is Reconciliation, and nothing can be achieved in the area of Reconciliation if we do not ensure that never again in our country do these accounts have to be repeated; never again in our country would young people have to go through the chilling experiences some of us had to go through. There are various issues that we would like the Commission to recommend to ensure that this kind of sordid history is not repeated but because of time I will only isolate one and that is dealt with in on page 55 of our submission. It deals with the composition of the bench, the representivity thereof. It is said there that it is somewhat ironic that with the advent of democratic government we have acquired a constitution incorporating a Bill of Rights and the unelected judiciary has become its guardian. Many of the judges so compromised by their part in implementing apartheid are now vested with the power to shape these rights. It is essential that the people of South Africa should have confidence in the judiciary and in judges’ commitment to promoting and upholding the values in our constitution. Ultimately, this is a confidence which will depend upon judicial performance but also extremely important is the transformation of the racial and gender profile of the bench. The openness of judicial offices to learning about cultures and conditions outside their own experience and their willingness to examine their own social attitudes and prejudices. Judicial independence is a crucial element of public confidence. Our legal system requires explicit and open debate of the concept of judicial independence which has in the past used to justify judicial passivity in matters of great importance. I simply wish to pause to say that when we assailed the white male character of our bench, people thought we were just being petty or at least dismissed our remarks at petty. One has seen now, with the little changes that have happened with regard to representivity that those of us who practise in those courts can already see, although it is not enough, the difference that it has made to have black judges, women judges and people who are able at least to taint some of the homogenous background from which the past judges came from. Those of us who, I can just pick up one issue, the issue of language. I have never appeared in a single criminal case where I have not had to correct an interpreter’s interpretation of what an accused says, and those kinds of issues where the representivity of the officials who are in court counts so much and sometimes counts as to whether the person who will go to jail or not or in the past as to whether the person was going to hang or not, are not idle issues and are not petty issues, and if in the future no effort should be spared to make our bench to be representative. That would go a long way to assuage the pain and the feelings of those who were victims of what has been recounted here. And we ask for no more than the basic human right of being able to feel in our own country that every human being is regarded as another, all this might seem petty and obvious, but in a country such as ours where these were ignored, it is important to place on the record. I wish to end, Honourable Chair, by reading from a excerpt from a poem by Pablo Neruda which shows what this simplistic notion of what is fundamental can mean. It goes like this, it’s called the Great Tablecloth
CHAIRPERSON: Thank you very, very much. Now I don’t know, you have some questions, Hanif, want’s to put you through your paces.MR VALLY: The first question I have to ask you is, if we were to find that the complaints that you’ve had about certain judges and magistrates were in fact valid, how do you propose that the Truth Commission should address those issues?NADEL MEMBER: Honourable Chair, for those people who have suffered those violations would be made by documentation, recording and more importantly by acknowledgement of those violations. That is what we would ask for.MR VALLY: Judge Cameron in his skimpy submission to us made some interesting points. The one point he makes is that all lawyers who participated in the legal system legitimated it. He says both lawyers who worked for the state as well as lawyers who considered themselves politically neutral and finally even lawyers who actively opposed the framework created by apartheid legitimated the legal system by participating in it. What is NADEL’s comment on that?NADEL MEMBER: Mr Chairperson the position of judicial officers and functionaries of the state is very different to the position of lawyers who were there as activists. Lawyers who were there as activists used the courts in a terrain of struggle, they used it to wage a war against apartheid. I don’t think one can brand them and then tar and feather them with the same brush as you would judicial officers who were part of the structures of the state and part and parcel of the administration of those policies. In it’s broadest, in it’s absolute broadest, I think one can say that every person, lawyer or not, that walked around in this fair land of ours and did not, on a daily basis, do something to oppose apartheid is guilty. But I think that is a very wide view to take and a very difficult one. I think at the end of the day one has to have a pragmatic differentiation between lawyers who were opposing apartheid and as a strategy used the courts for that opposition and prosecutors who were there implementing the Group Areas Act with all their might and vigour, judges who were there either by commission or omission implementing apartheid policies.MR VALLY: To follow up on that again in the submission of Justice Cameron. If lawyers and judges were complicit under Apartheid in enforcing injustice and iniquity they have no less responsibility for doing so under the present system. It is true that formal apartheid has been abolished, but we still live in a society characterised by extreme disparities of wealth and power. Our social system is democratic and it’s political institutions now are representatives but we live in a society still distinguished by extremes of dispossession."In view of the harsh criticisms of what happened under the Apartheid Regime, the point being made is we are still living in a system which there is no equity. What is your role as legal people in that new system, and as a legal organisation?NADEL MEMBER: I would like to believe that our activism continues. We say very often that the struggle continues and certainly the legacy of apartheid is deep. However we look to the new constitution with its holistic rights, more particularly the social and economic rights, and as lawyers we hope to be able to use those rights in the courts, in advocacy, to bring some measure of not only relief but a redistribution of the wealth and resources of the country, not only through the courts but also at extra legal levels.MR VALLY: Judges nominated by NADEL, amongst others, have chosen not to come to the Truth Commission, now even your nominees, I am not sure if they are still NADEL members, or can still be NADEL members are not here, the question that was asked earlier is how do we engage with the judges on these issues, because the attitude of judges is they will engage with members of the Judiciary and no one else on issues affecting their role? So especially since you are in a position that you do nominate people to the Judiciary and your own nominees have snubbed you amongst others, how do you recommend that we should engage with judges?MR MPOFO: Thank you, this issue does touch in a way into the question of the racial composition, or the exclusive racial composition of the bench at least before the new dispensation. The judges that you refer to, and I am not here to defend anyone, not even them, would by and large - or let me start by saying that until the new dispensation, NADEL, in particular had the policy that none of our members were to accept appointment to the bench. So that is point number one. That changed, with the change in the political dispensation, so in a way without excusing anyone insofar as we deal with them globally as the bench, in a way those judges that you are referring to would really belong to the generation of judges who have only been appointed since 1994 and after the accounts that have been made here or at least some of the atrocities or acts that were quoted here and attitudes prevailed in the country.MR VALLY: You haven’t answered that question: My question is simple, and I am sorry I am going so fast, it is just a question of time. We need to engage with people as to what is happening to the Judiciary in the future, you have nominated certain people and some of them have in fact been chosen. I see no black faces here either amongst as judges. I’m talking about representivity. Number one is, how do we engage, even with the new judges who also have deigned not to have come to the Truth Commission and how do we engage with them outside their chosen field of operation, that is only amongst the Judiciary?MR MPOFO: Well, I don’t know if Mr Vally is looking for free legal advice here. (Laughter) We don’t know what powers you have to bring judges to this forum, if you want legal advice on that we will gladly give you, for a fee, yes. But all I am saying is that our starting point is that the judges should have been here, we are equally amazed as the next person why the judges saw it fit or did not see it fit to attend here. But having said that then the qualification I made about the generations of judges I think is quite crucial because it’s a matter of historical fact that does punctuate the era that we are talking about as opposed to the era of the future which I....
CHAIRPERSON: Wouldn’t you want to say I mean that they come into a particular culture, I mean they are new, there are people who have got certain traditions and they say this is how we have always done it, and it is very, very difficult for what we used to call "Msila" coming in into an institution and say "look here you guys, as from now this is a new dispensation, we operate differently". I think it is very difficult to change mindsets, to change cultures and perhaps, I mean you might be able to persuade the people that you nominate to say "look here, you are going in as pioneers and that’s a very difficult position to be in, but we are hoping that you are going to be catalysts for change" and it is not easy to be that.
MR MPOFO: I can stick my neck if the question is put like that without having to consulted with my colleagues, that if the Commission were to convene a future meeting of this sort we would do everything in our power at least to put influence to those nominated by us and maybe even beyond those that we might have influence on, because as I have said earlier it is our view that the Judiciary should be represented. There is no way that this bridge between the horrific past and the intended more just future is going to be built if the people who, the pillars of the bridge are not even present here.
CHAIRPERSON: I think I will have to step in, Hanif. If you have questions maybe you can get them in writing or you could ask them to come again on another occasion. Thank you very, very much. I do want to express our appreciation. Mr Minister.
CHAIRPERSON: Order please. It is a very great pleasure to be able to welcome you as the Minister to whom we are answerable, but of course it is also a great joy to welcome you as a very dear friend and when one thinks of all the things that happened it is just one of those funny things about this country that now we have got to say the "Honourable Minister". Minister, I am asking Joyce to administer the oath.
DULLAH OMAR:: (sworn duly states)
CHAIRPERSON: Thank you very much Mr Minister, I think I am not going to be able to say to you time is of the essence, but you will know how we feel.
MIN OMAR: Thank you very much Archbishop Chairperson, Commission, Members of the Commission, Members of the Committee, I am very happy to submit myself firstly to the oath and secondly to the scrutiny of the Truth and Reconciliation Commission. I believe that the Truth and Reconciliation Commission is a very important institution in South African society. Looked at historically, and in the context of the history of our country, as well as our hopes for the future, a great deal rests on the work of the Commission. The Commission is independent and I am certain that even if the Commission had asked the President to come along to testify, he would have done so. My input Chairperson, Members of the Commission, will come as a kind of an anti-climax after the input by the representatives of the National Association of Democratic Lawyers. It comes as an anti-climax because with due respect, to you Sir, and everyone else, I think it would be appropriate for me to concentrate on the future rather than on the past. There have been submissions with regard to the past, they will be subjected to scrutiny, but it is also the task of the Commission in terms of Section 4H of the Act to make recommendations to the President with regard to the creation of institutions conducive to a stable and fair society and institutional administrative and legislative measures which should be taken or introduced in order to prevent the Commission of Violations of Human Rights. Sir, we are three years into the new democracy and no people who have suffered as much as the people of South Africa will wait for the Commission to report before Government begins to institute those measures, legislative and otherwise, to begin to change the situation. And I think that we owe it to the Nation and we owe it to the Commission to give some indication of the kind of steps which government has taken and which are envisaged in an attempt to ensure that the human rights abuses and violations, about which much has been said will never again be repeated in our country, and I do so, Sir, because those steps and measures and intended measures must be subjected to scrutiny by yourselves as the Commission which has been entrusted with that responsibility. And therefore in everything I say I do not expect them to be accepted uncritically. I accept that they must be subjective to scrutiny and hopefully what I will say will make some contribution towards enabling you to make the kind of recommendations which are expected. I must say though too that the Director General in the Department of Justice has made a submission with regard to the role of the Department of Justice in the past and he himself will be subjecting himself to scrutiny and will answer questions to the best of his ability when his opportunity arises for him to respond. I have made a written submission which I have just handed in. I apologise for that late submission, Chairperson. I am not going to read that submission, what I will do is I have been a legal practitioner for about 30 years, Chairperson, and in my handling of cases I have always tried to read the mood of the court and therefore I shall not read my submission. I would like to highlight a few aspects arising from the written submission which I have made. I think it is fair to say that arising from the various submissions which were made, even Parliament, during the apartheid years, was guilty of violations of human rights, and committed abuses through the decisions taken by Parliament and the legislation enacted by Parliament. And so the question is, what guarantee is there that Parliament itself will never again commit those abuses? The same question can be asked about the executive, and I want to say that in response to that I am very happy to work within the framework of the new Constitutional dispensation. Immediately after the elections in 1994 the interim constitution became the constitutional framework of our land, and about two years later South Africa through a democratically elected body adopted a final constitution. We spent a great deal of time, Chairperson, to ensure that the final constitution will entrench the notion of a constitutional state in our country, and therefore I would say that we have put into place the institutional framework within which Parliament and the executive will have to operate. Our new constitutional framework required even Parliament, the Executive and the President himself to observe the provisions of the constitution and the Bill of Rights. Any violation of that, by law or otherwise even if it is by a unanimous vote of Parliament may be set aside by the Constitutional Court. I make that point, Chairperson, because there were many things which were structurally wrong in the old order and therefore we need to put into place those structural mechanisms which will provide the basic guarantee, firstly, that violations of the kind that we have seen will never occur again or if they do occur they can be effectively dealt with. And so I want to say that we have put into place a constitutional framework of that kind. There have been a number of criticisms over the past year or two with regard to that constitutional framework and our Bill of Rights. I am not going to deal with all those criticisms, they are made by many people, people who are victims of crime for example, make criticisms. The only point I want to make is that within that constitutional framework certain values have been entrenched and find expression in various provisions, and those values had been placed beyond the reach of transient majorities. Sometimes in the short-term one may find a problem with regard to how those values are interpreted and how they find the expression but in the long run the entrenchment of those values and putting them beyond the reach of transient majorities will help to create the kind of human rights culture and respect for those values which we all so dearly want to see in our country. And I am saying that that helps us to ensure that not even Parliament or the Executive or the President himself, will abuse power in the way I know, I know the President himself, Chairperson, commented on a judgement of the Constitutional Court which affected him. He had taken a decision with regard to the composition of the Cabinet and the Constitutional Court held the action taken by the President to be unconstitutional. The President welcomed the decision of the Constitutional Court and said that he willingly abided by the decision of that Court. That brings me to the second point in respect of our structural arrangement and that is the role of the Constitutional Court. Sir, for politicians I think the Constitutional Court is often an irritation, an inconvenience but it is absolutely liberating because it ensures that the kind of abuses which begin to rear their heads, or the kind of unconstitutional acts which begin to rear their heads are checked speedily so as to ensure first of all, that such abuses do not continue, but it certainly puts the Executive on its guard. It puts politicians on their guard, that there are certain values which are very important for our country and they need to work within the framework of those values. The second aspect of our constitutional framework, that is the structural aspect, is that we have entrenched the notion of separation of powers within our Constitution, and I myself as Minister of Justice am very conscious of the need to ensure that we respect and adhere to that principle. That principle is very important especially insofar as the Judiciary is concerned, and it is absolutely important that we observe that principle and ensure that as between the legislature and the Executive on the one hand, and the Judiciary on the other, the principle of separation of powers is respected. Thirdly, Chairperson, if I could comment on the structural arrangements. Our Constitution makes provision for a number of institutions and mechanisms in addition to the Constitutional Court to deepen democracy in our country, but also to ensure that human rights are respected and that abuses or abuse of power can be curbed, regulated and ultimately eliminated from our way of life and I refer here to the Human Rights Commission, to the Office of the Public Protector to the Gender Equality Commission in particular. I mention them because in 1994 those Institutions existed on paper only, the Constitutional Court also existed on paper only, and some of the things which I was responsible for related to giving life to all those Institutions and we promoted legislation in respect of all of them and took all those practical measures which were necessary in order to give life to all those Institutions. And so I am saying that we now have the constitutional framework and structural arrangements which will help to ensure that gross violations of human rights do not occur again in our country; or where violations do occur they can be effectively dealt with. Secondly, that abuse of power will be curbed and ultimately e eliminated. Chairperson, what we have also observed in the past is the way the Judiciary had been compromised by the apartheid system and by repression and so that has raised the need for us to ensure that every possible step is taken to strengthen and entrench and also protect the independence of the Judiciary in our country. And the question is - what have we done about that and what do we intend to do.? Firstly, Chairperson, we concentrated on getting established the Judicial Service Commission which is a body consisting of Judges, Lawyers, Parliamentarians, there was even a former Trade Unionist serving on the Judicial Service Commission, no longer can Government make appointments to the High Court Bench. Appointments are made by the President on the recommendation of the Judicial Service Commission. Only in respect of acting appointments does the Minister and President have certain powers but we exercise those powers in consultation with the Judges President of the Country. Much to the dismay of some of our colleagues and friends, comrades in struggle, I have not made a single appointment except in consultation with the Judge President of the Division concerned, and it is not for any fear or weakness on my part, it is the recognition on my part that politicians must not dictate the nature of appointments to our bench. In the short-term it will cause some problems, some unhappiness with regard to some of the appointments, in the long-term it is the building of that tradition and culture which will stand our country in good stead. Secondly, the tenure of office of Judges is secured. Thirdly, the question of salaries and conditions of service of Judges are removed from the hands of politicians, yes, Parliament has to deal with these matters but they are dealt with separately from the Civil Service. The issue of Judicial training has arisen, and Chairperson, and I think having listened to some of the submissions, the need for Judicial training can be seen to be more important than ever, and so as Minister and as Head of the Department we have spent a lot of time looking at the question of Judicial training. We have consulted far and wide internationally, we have looked at other jurisdictions, we have secured the assistance of other democratic countries and we have spoken out about the need for Judicial training, for orientation courses and so on, both in respect of High Court Judges, Magistrates and incumbent judges and magistrates. And I think that we regard the issue of Judicial training to be extremely important. At the same time it is necessary for us to handle the question of Judicial training in a way which will not compromise the independence of the Judiciary and that is why I do not see Government or the Executive or the Minister organising training programmes for judges or magistrates. I do not see myself determining the content of courses that incumbent judges or magistrates may attend. That to my mind would amount to political interference and I see the role of the Judicial Service Commission to be important in that regard. Issue of Judicial independence is coupled with Judicial training and Judicial education. Training Judges for independence is an important element of Judicial education. One does not want to see indoctrination courses of any kind. One does not want political ideological to form the subject matter of courses. One wants to ensure first of all that our Judges are technically equipped, that they know the law, that they know judicial methods, they are able to write judgments and all those technical methods. These are not things which I have invented, Chairperson, those are things which other democratic countries and judges in other democratic countries are saying. And so the judicial training programmes therefore needs to be organised in such a way that Judicial independence is not compromised. But that also immediately raises the question of Judicial accountability, and that is the question that the NADEL has been asking in everything that they have been saying. Are judges accountable? Is the Judiciary as a whole accountable? If so to whom are they accountable? And of course how can we ensure that such accountability is established again without compromising the independence of the Judiciary? And so whilst I am for accountability, and we are looking at how other countries have established accountability, it is not for Government or the Minister to establish mechanisms for accountability to themselves. My view is that it is for a Judicial Service Commission Sir, to look at the question of accountability and to establish the necessary mechanisms. I can say that the Judicial Service Commission has, over the past few meetings, been looking at that issue and I am certain that that process will result in mechanisms and procedures being established in that regard. According to the NADEL submission, some of the biggest problems existed at the level of Magistrate’s Courts, and I agree with that view. I think it was a structural problem in addition to the other problems which may have existed. The structural problem relates to the fact that magistrates were regarded as part of the Civil Service, they were treated as part of the Civil Service, their salaries and Conditions of Service were determined together with that of other Civil Servants. They were appointed by Government; they performed agency functions on behalf of Government; they performed administrative functions; they were drawn from the ranks of Prosecutors, unlike the Judges of the High Courts and so there were a large number of problems associated with those factors which compromised, reduced and if not at times obliterated the independence of Magistrates. Again, I should say, Chairperson, that one must give due regard and compliment those Judges and Magistrates who, despite all those structural problems and our history, nonetheless did try their best to administer justice according to their conscience and sought, under very difficult circumstances, to protect the rights of persons. There have been judges and magistrates who have done that and I think one must express one’s appreciation for that. But I am saying that with regard to magistrates then there were huge problems, and of course confessions referred to were often taken by magistrates and a call has been made for an explanation in that regard. My own position is, Chairperson, that we must look to the future, and so in the same way that we have a potentially powerful Judicial Service Commission, and I myself don’t believe that the Judicial Service Commission has reached it’s full potential as yet. It is developing that but there is much to be done and we also need, my own view, greater transparency. Some of our cessions in the Judicial Service Commission are closed and that leads to a great deal of speculation about what happened in these meetings. My own experience of meetings of the Judicial Service Commission has been that had the meetings been open we could only have benefited from it because the discussions in the Commission are vigorous, they are honest, there are different points of view and it is a great credit for the democratic culture, I think, that we are trying to establish. But we are also re-structuring the Magistrate’s Commission in our country. We have about 540 magistrate’s offices in the country and we believe that the Magistrates Commission needs to play a role in relation to magistrate’s courts, similar to that of the Judicial Service Commission and therefore I do not see the present method of appointment remaining in place for ever and ever. We will be moving away from the current method of appointment, something which we have inherited so as to ensure that there is a more independent process. We have passed legislation to remove the fixing of salaries and Conditions of Service for magistrates from the Civil Service. We passed legislation to bring all magistrates under the control of a Magistrate’s Commission rather than Government. Then again with regard to magistrates training programmes and issues of accountability need to be addressed and those are issues which are also being looked at and obviously, Chairperson, the kind of inputs and guidance we will receive from the Commission will be welcome. I turn then to the question of access to justice. That is a very important area for us and often neglected. It is true to say that the overwhelming majority of people of our country did not enjoy access to justice. By access to justice I would roughly describe as the existence of mechanisms and procedures at all levels of our society which would enable citizens and non-citizens, where appropriate, with ways of having their disputes and problems resolved in a way which would maintain harmony in our society. Where such mechanisms and structures do not exist, procedures do not exist, then people and communities are forced to
create such mechanisms for themselves and this results in people taking the law into their own hands and the end result of taking the law into their own hands is violence and the absence of access to justice is a contributory factor to the culture of violence which has pervaded our society. And so we are looking at the question of access to justice which means firstly access to courts. People must have access to Courts and therefore we are looking at our current Legal Aid system which, in my view, has been in a state of crisis at a number of levels and it is clearly necessary for the whole Legal Aid system to be reviewed. We have been looking at this, we have been consulting with role players and will continue to do that and there will be a forum in early December at which the Legal Aid system will be discussed and where proposals will be made for the future direction of the Legal Aid system in our country. ....(tape ends)
...legal profession as to how it should organise itself. At the same time there is the public interest and that is what government is interested in - protecting the public. And so in the restructuring of the legal profession we want to find a formula through which we will ensure that public interest is protected, but leaving it to the legal profession to ensure that they are able to organise themselves and regulate themselves as much as possible. There is no final answer to that too. It is a matter which we are looking at.
Also Chairperson we believe that in all the structures which are created, mechanisms which are created we should look at alternative dispute resolution mechanisms. I will not dwell upon that except that the South African Law Commission is looking at alternative dispute resolution mechanisms and in other countries it plays a very important role. There's no reason why it shouldn't in our country.
And then some submissions have dealt with the role of the Attorney General, the role of the prosecutorial authority in our country. I have finalised, or the department has finalised the drafting of legislation to create a single, national prosecutorial for our country. That prosecutorial authority will be headed by a national director of public prosecutions. And all directors of public prosecution existing at provincial or other levels will be accountable to the national director of public prosecutions. Which is not the case at the moment.
The current structure is that there are attorney generals, attorneys general in different provinces and areas and they are responsible for what happens within their area of jurisdiction. They are not answerable to any national attorney general which does not exist in our country at the moment.
I am mindful of the criticisms which have been made of the office of the attorney general; the kind of decisions which were taken; and the role of the prosecution system in our country. Because of our constitutional framework and Bill of Rights I am very confident that the transformation of the prosecutorial authority will result in a respect for the rights of individuals and of people in our country.
And then the next point I want to make with regard to the issues which have been raised is the issue of law reform. Quite clearly Chairperson, members of the Commission when you adopt a constitution which transforms South Africa overnight into a constitutional state it does not mean that all the institutions have changed at the same time. It does not mean that the legal system has changed. It does not mean that there's automatic change in legislation which exists on the statute book. And I accept the view that political change in 1994 brought about no other change in our country. I think that the revolutionary change is the transformation of our constitutional framework. That is totally revolutionary. But there was no socio-economic change, no institutional change, no attitudinal change, and what we are living through now is a period of transformation in relation to all of those matters. I am as impatient as many others about the pace of that transformation and I believe that we need all to work together; state, government, department, civil society to speed up the process of transformation, so that we transform our society.
At this stage I'm concerned about the transformation at the level of our legal system and to make the point that the South African Law Commission has been entrusted with the task of investigating the kind of changes which need to take place within our legal system. So as to ensure that our laws comply with our constitution. There are many areas of law not only within our criminal law and procedure but other areas which will be found to violate our constitution and Bill of Rights. It is a question of serious study which is necessary to purify our law and to bring our law and legal system into line with the constitution.
I make this point Chairperson in the hope that the role of the South African Law Commission will be highlighted in this regard. It has a large number of programmes on it's record and it is attending, it has set up a large number of projectivities, one of which you will be very interested in. Or some of them you'll be interested in. One relates to women and children, protecting women and children against violence. And the other which I think this Commission will make a big impact upon is our project, or the Law Commission's project on victim empowerment. I just want to say a few words on that and then I want to conclude with one or two other remarks.
Our legal system over the years has never paid adequate attention to victims and the concerns of victims. Our criminal law and criminal procedure have been designed historically, it's not and not only since the advent of the National Party, it's been so since the Union of South Africa and before. The fundamental objective of our criminal law and criminal procedure was to protect the state but in the latter years of National Party rule the security of the apartheid state. So our criminal law system pays scant regard to what happened to victims. Victims came to court as witnesses and complainants. After giving their evidence they were thanked for having given evidence and told to go. But crime was essentially regarded as a crime against the state. And quite correctly it is a crime against the state. But the wrong to the individual, to the victim has been sorely neglected in our history. Now I am saying that this Commission can make a contribution towards a re-assessment of our criminal justice system and it's objectives. Because we believe that in a democratic society, in a constitutional state what happens to individuals is very important. And the hurt and harm caused to individuals needs to be addressed. And that is why we have asked the South African Law Commission to review the whole question of victim empowerment. Which is much more than, much more that compensation but, compensation is part of it.
Now the accident of history in our country which has sometimes been criticised has actually provided South Africa with a wonderful opportunity of reassessing the underlying values of our criminal justice system. And here the Truth and Reconciliation Commission is grappling with: how to ensure that there is justice for victims in a situation where the political compromise in our country dictates that there shall be amnesty for persons who've committed gross human rights violations, where of course there, there has been some political motive. And so one of the major issues that the Commission I believe is grappling with, if I read the situation correctly, is how do we ensure that there is maximum justice. And the only way it can be done is if we look at justice from the point of view of victims. And that is why I believe that the work of the Reparation and Rehabilitation Committee is so important in our country. I think that many role players have underestimated, understated and neglected the importance of the work of the Reparation and Rehabilitation Committee. I have seen the recommendations of the Committee and I'm very excited about it. I'm of course concerned about the financial implications. That is another matter that we need to grapple with. Can our country afford to implement all the recommendations of the Reparation and Rehabilitation Committee? As I say that is another point.
But what the Commission has done and the Committee has done is to say that we must begin to address issues which affect the fundamental basis of our criminal law from another dimension and that is from the basis of the principle of restorative justice and restitution. What can we do to ensure that victims are placed in a position as best as possible to that before the harm was committed? What steps can be taken to restore the dignity of victims? And so those are major questions. Not only for the Commission but for the future of our criminal law in the country. And I look forward to the assistance of the Commission in this regard.
So I would like to conclude by saying that I and my department are not only calling for transformation of everyone else. I know there has to be transformation and I agree with the view that representivity is an important element. Representivity in terms of race and gender. Insofar as our justice institutions and the department itself are concerned transformation does not only mean bringing black faces into our institutions, and bringing women into our institutions. Those are very important. Our structures have to be representative but, what is the kind of culture which must pervade in those institutions? What attitudinal change do we need to bring about so as to ensure that there is respect for human rights and that we build a democratic culture in our country and a democratic culture in our institutions? Many of our institutions still reflect the authoritarianism of the old order. Much of the culture of authoritarianism is still in place. And I want to say to those who are impatiently urging greater and speedier transformation that those issues are important for us. And I see transformation therefore as being a very important item on our agenda.
We have addressed the issue of transformation in the Department of Justice. I have not made a big noise about it Chairperson but I have a new management in place which is, which is representative in terms of race but I regret to say not properly so in terms of gender. We need to do much better in that regard. The inputs which I've given you, some documentation will give you some information as to the steps which we have taken to transform the Department of Justice. And as you will see many steps have been taken and the results are there. It's an on-going process.
But we think that transformation must be deeper than that and so we set up a planning unit in the department consisting of experts brought in from outside the department; experts in human rights, foreign experts as well as legal academics in our own country and that planning unit has been working on a framework for transformation of our administration and system of justice. As a result of that we have produced a document which is called "Justice Vision 2000". The fancy title is not a gimmick.
The document identifies seven areas of transformation. It relates to the Department of Justice itself, the institutions of justice, access to justice, the very important area of safety and security, that is dealing with crime and a number of other issues. And arising out of the framework which we produced our planning unit produced a number of business plans, projects which are currently being implemented to give effect to "Justice Vision 2000".
Chair I want to conclude by saying that I thought it wiser to speak about the future rather than the past. Even though as a practitioner I think I can say more than most practitioners that are sitting here about the past, but I think the future is so important for us and the best to way to deal with the past is to guarantee a future in which the rights of all our people are respected and hence I have resisted that temptation to speak about the past and I hope that you will accept that. Thank you.
CHAIRPERSON: Thank you very much for a very inspirational submission. Now I'm sure Hanif does not have a question - do you have something, did you want to ask something Hanif?
MR VALLY:: Yes we have questions to ask Mr Chair. Do you want us to ask them?
CHAIRPERSON: I'm just a little concerned that now we have really only about 30 minutes for this panel discussion and I think, I mean that we really owe it to them to even 30 minutes .....
MINISTER OMAR: Chairperson if I may? I've been rather unfair to Hanif and the Commission by not providing him with the submission in advance. He's therefore at a disadvantage. I regard the work of this Commission as being so important that I'm quite prepared to come back at a time that you would have available Chairperson to answer whatever questions you require with regard to the submissions which I have made.
CHAIRPERSON: That I'm sure has disarmed him - but thank you very much for your generosity. One is aware that you work like many other people under very considerable pressure and to make that offer is a wonderful gesture. But thank you very much Mr Minister.
I have a problem with people who do not wait for me to give them permission to clap. But yes that is very nice. Now the dear people over there, you have heard quite a few submissions and I saw you taking fairly copious notes and I don't know there are things about dereliction of duty, the accountability of the judiciary, apartheid as a crime against humanity, the death penalty, (...indistinct), and then the submissions by the Minister looking to the future and if I might say modestly the intervention of the Chairperson - I don't know whether you are going to be wanting - how you want to handle that. Whether we, oh you never tell me these things. But let me introduce you or you will introduce yourself. Maybe if you say who you are I will go down and then you can have them. Or as they speak. Okay he's suggesting that as you speak you then introduce yourself.
MR VALLY: Thank you Mr ...(intervention)
CHAIRPERSON: No the assumption is that you are going to speak, all of you.
MR VALLY: Thank you Arch. What we want to do is because of pressure of time try and restrict yourself to 5 minutes. If you have to go over, not more than 7 minutes. Please just identify yourself by name and your organisation. Only one person per organisation. I know Mr Trengove asked to go first but I think he's already left. We were too late for him. And we'll start off at the left and we'll go up the line. I was going to set the background but in view of time constraints I won't. I'm sure people have kept copious notes.
CHAIRPERSON: Hanif can you just find out whether it will be possible - an hour is that okay? If you see me walk out it won't be because I'm annoyed with what you are saying I've just got to catch a plane. Right you are, thank you.
MR VALLY:: Thanks. As I was saying I was going to set the scene but I'm sure everyone's got their notes and know what they want to say. So we can without further ado start off with the Association of Law Societies.
MR COETSER: Your left would be our right, so we start here?
MR VALLY:: Exactly.
MR COETSER:: My name is Nico Coetser and I represent the Association of Law Societies. And the truth is that some of us do need a break even if it's only for two minutes now.
CHAIRPERSON: I thought I had given you the break but I mean this being a free and democratic country, yes have the break.
CHAIRPERSON: We don't want accidents, let's have that break yes. Five minutes.
HEARING ADJOURNS
ON RESUMPTION
MS SOOKA: ...with a number of the panellists, there is a suggestion that it's rather unfair to expect people to comment when they've been presented with a fifty page submission today and they need to take time to consider what their responses should be. So I'm going to ask those of you who are presenting tomorrow to perhaps consider if you would rather like to respond whilst you are doing your submission tomorrow.
However there are a number of groupings such as the Human Rights Commission, the magistracy who in fact are not making submissions and I would ask then if you are going to make a comment today that you try and limit that to 5 minutes and perhaps at the end of the third day you could make a fuller presentation on your own evaluation and responses to some of the issues raised.
I'm going to go back to the gentleman on I think my right-hand side of the Association of Law Societies and ask you to proceed please. We are suggesting that as people speak they could perhaps indicate what their names are and the organisations they representing.
MR COETSER: I'm Nico Coetser, representing the Association of Law Societies. Thank you.
MS SOOKA: Thank you Mr Coetser. Do you want to make a comment today or would you hold that for your submission tomorrow?
MR COETSER:: Unfortunately I won't be able to be here tomorrow ...
MS SOOKA: Could you please just switch the red button on, your mike on.
MR COETSER:: This thing is not working properly all the time. Mr Chairperson I will speak now and forever hold my peace. I'm used to defending people that can't defend themselves and maybe you will say that I'm out of order but I think it's important seeing that the judges aren't here today. It's a pity that they're not here. I just want to make a few points.
First of all Paula McBride said, and she's right, that the judges are human beings. Surely they are. It would be a difficult task on this Committee, this Commission to judge the judges. In those years and we take it as a fact that there was a dark cloud over justice in South Africa. But let's be fair, they had a dilemma and this is highlighted in all the papers that we've got before us. I would like the Commission even while they're not here to read through what they have said, what the judges have said even what the bar has said and they touched upon the difficult position our judges were in. As I've said they're not here and this is just a statement in the air, maybe it could help the Commission.
I think by and large the job of a judge would have covered I think less than 5% of political cases and criminal cases. So by and large their job is to mete out judgements in other fields and we're very selective now when we criticise them. But so be it. They've got to answer to these accusations. And I think in the end I will request the Commission to read through all their submissions to understand the difficult task they had.
Saying that, that goes for the Association as well of which I'm one, the Association of Law Societies. I think in the end we can say to be honest, to be fair, to be truthful that the judges or some of them didn't do enough and did not use their discretion for the accused or for these people who had to suffer under certain unjust laws. But on the other hand everything wasn't bad, it wasn't all that bad and you will allow me to quote from one of the papers which you have in front of you. And I would like you to have a closer look at that. Those aren't my words although I share the feeling. My words are that there was a dark cloud but there was a silver lining and I think there was a golden thread to that dark cloud. May I just read to you if I can find it, I've got a lot of paper here and I ask you to bear with me for a second.
This comes from nobody less than the President of our present Constitutional Court and if you ask me where he said this I don't know but he did say that and it comes out of what Justice Corbett has said and I believe him. He says:
"In reviewing the history of the courts of this country some writers have criticised the way in which South African judges have discharged their duties over the years. That they could have done better than that than they did I think is now clear but that is true of all of us and little is to be gained by lamenting the past. What is important is the future."
And this is what the Minister also said.
"....and it is here that I believe that we will come to appreciate that we owe much to our judges. And a great deal to some of them. That is the truth. For despite all the paradoxes they have somehow held to the infrastructure and have kept alive the principles of freedom and justice which permeates common law. True, at times no more than lip service have been paid to these principles. And there have been landmark cases where opportunities to give substance to and uphold fundamental rights have been allowed to pass without even an expression of discomfort."
I think that's true.
"....let alone a vindication of the right, yet the notion that freedom and fairness are inherent qualities of the law lives on, and if not reflected in all of decisions it none-the-less acknowledged and reinforced in numerous judgements of the court. That is an important legacy and one which deserves neither to be diminished nor squandered."
Mr Chairperson luckily we have a Bill of Rights now. We never had that. And I'm full of hope for the future. Full of hope that under the new dispensation with a Bill of Rights justice will be handed out to each and everybody. Thank you.
MS SOOKA: Thank you Mr Coetser. Mary.
MS RAYNER :: Is this on? I think it's working. Thank you. I'm Mary Rayner from Amnesty International, the international secretariat in London. I am scheduled to give some evidence on Wednesday and will make some broader remarks then.
But, perhaps I'd just like to say here that I think one of the most poignant failures of the legal system in South Africa centres around, from the point of view of our organisation which has dealt for many years with the rights of prisoners and detainees globally, that there was an, on overall perhaps with very notable exceptions, a failure of the imagination to understand the circumstances of persons delivered up in the court by the security police, some of whom were state witnesses, some of whom were accused, who'd been kept in solitary confinement or in other circumstances of great duress.
And I think the dehumanisation which happened under apartheid was reflected at the level of the court where the distance between presiding officer and the person brought in who was the captive of the police was vast. And a circumstance set in train which other people have given testimony about today in which the evidence of those who had power over those detainees was given priorities, more credible, etc. And this doesn't just apply to judges and magistrates but it was part of a complicated whole which the Commission is trying to grapple with, and in that complicated whole is the evidence of the district surgeons and others who contributed to that atmosphere. And I think it's a very important part of the Commission's agenda to try and give that whole picture which lead to individual decisions which failed the victims, who were completely helpless. Thank you.
MS SOOKA: Thank you Mary. Advocate Hodes?
ADV HODES:: My name is Peter Hodes, I represent the general council of the bar. My colleague Malcolm Wallace will make our contribution.
MR WALLACE:: Surprisingly that's me Madam Chair. One of the questions which has been addressed today and on which I want to comment is the question of how does this Commission engage with the judiciary bearing in mind that the judiciary lead in this sense by the present Chief Justice and presumably the President of the Constitutional Court neither of whom are here has come to the conclusion that they should not attend and make oral submissions as opposed to the written contributions they've made. And there have been a number of statements in that regard about the desire to have them here and they must not place themselves above the law.
But we had a very timely reminder from the Minister of Justice in his contribution that we do now live in a society where constitutionally the notion of the separation of powers has been entrenched and that separation of powers would ordinarily certainly preclude the government or Parliament or anybody else establishing a commission to enquire into the way judges comport themselves except where it is specifically alleged that there is misconduct against them. I think the Commission must bear in mind that there is a serious problem that you are yourselves operating within that constitutional framework and there is a problem of where within the doctrine of the separation of powers, which is so important, if in fact the judiciary are to play the independent role which they have been criticised for not playing in the past, where in that context would lie a power in this Commission to demand that judges, and I'm talking here about sitting judges, to come and account to somebody else. And might I simply suggest that you do need to reflect on that. I don't suggest that it applies particularly to questions of administration of the courts or to those who are no longer judges, and one of the central issues does relate to somebody who is no longer a judge and the composition of courts which is an administrative matter. And we certainly don't suggest that the ordinary powers of the Commission are not available in that regard. But just sitting here reflecting on it today if we may counsel that there may be problems of that nature and that you should be considering if you believe that there is conduct by a sitting judge which is misconduct which unfits or detrimentally affects that person's suitability to continue to sit as a judge, you should consider whether your proper approach is not to refer those matters to the Judicial Service Commission, which has the responsibility of investigating those matters.
Having said that can I mention in the context of the separation of powers the importance of the independence of the judiciary. It is a matter which we have addressed in our three volume submission. But I was a little concerned about a matter, and I'm sure Mr Vally will forgive me if I'm merely being a typical lawyer and somewhat semantic, but I was rather concerned about the proposition in that context put to our colleagues from NADEL, that you have nominated these people; you have influence over judges and you should be using that influence amongst those you have nominated to persuade them that they should change their stance. And may I say on behalf of the General Council of the bar firstly that I would trust that NADEL would not use it's influence, I'm not sure what Dali undertook to do but, I hope he'll reconsider it.
And secondly that if in fact they did seek to use their influence that, that would be repulsed. Because it is contrary to any concept of independence of judges that merely because initially they were nominated for consideration by a particular body, that they should be thought in any way to owe some kind of allegiance or obligation to that body. And if indeed that is so then I would say to this Commission we are back in precisely the trap which has been documented in the papers. Where we have looked at the past and said that people were appointed because of their political predispositions, because of their support for the Nationalist Party and our own submission say quite frankly and freely that did undoubtedly happen. And our task should be to ensure that it does not ever happen again - that someone goes onto the bench with some commitment or tie of loyalty to some outside organisation as opposed to the doing of justice under the constitution.
Can I simply add two other comments. The one is to take care that merely because one doesn't like a number of judgements that emanate from a particular judge, to condemn the judge. And I'm not sure whether Professor Dyzenhaus's contribution with the rhetoric which academe entitles him to employ, goes so far as to suggest actual dishonesty on the part of the judges. That it is interesting to note that the judges have said we acted in terms of a particular judicial philosophy and the philosophy did not serve us well. I think all are agreed on that. But one must be very careful before you condemn people on the basis of a philosophy which is used and is used world-wide.
And perhaps one should note that only this past week in a court from which we do derive much guidance and did derive much guidance, the House of Lords a member of Europe the community with the charter which they are not yet a party to but, they're going to join non-the-less was able to find that people who are held in detention in Northern Ireland do not have a right of access to a solicitor. So the philosophy may not be one that helps human rights but it is one which has a role to play in many judicial systems.
Can I say one last thing about the death penalty. Or perhaps two things. One to correct an impression which some newspapers have had that the comments in that regard by the GCB somehow indicates it's support for the death penalty, they do nothing of the sort. They were merely concerned to place our submissions in the context of the mandate of this Commission.
May we also say that you need to be very careful to particularise one case and turn the person who sat in that case into an ogre. And here if I may depart from the hat I wear as member of the General Council of the bar and to say that as a member of the bar in Natal, who practised in Natal and has practised there since the early 70's and conducted well over a hundred capital cases and was a part of the system which brought about pro deo defences in those cases, there is no doubt that the personal predilections of judges influenced their inclination in the imposition of the death sentence, the GCB says as much.
May we also say that amongst those judges whom pro deo counsel heaved a sigh of relief when they heard their cases were to be tried before them was Judge Leon, who has attracted such stern criticism this morning. And pro deo counsel were delighted to know their cases were before him because he was well-known as a judge very reluctant to impose the death penalty. I say that merely to introduce a personal experience, one which was widespread amongst my colleagues and to introduce some sense of balance into the discussion. Thank you Madam Chair.
MS SOOKA: Thank you Mr Wallace. I think you have, as has Mr Coetser addressed a number of the issues that have been raised and I think that probably in your submission tomorrow you will address some of them again. Could we move to NALSA please?
MR GODLOZA: My name is Godloza. I shall not deliver a speech. My president general will comment. Thank you.
MR MALATO: Thank you. I'm TP Malato of NALSA. I'm not going to comment much because of lack of time and apparently because I'll be having another steak tomorrow to chew and I will just say one word that I am not very much in ad idem with my colleague here next door from GCB because I can realise I don't know whether he is on a brief but he's defending the judges. My feeling is that ...(intervention)
MS SOOKA: Sorry Mr Malato, I think that we are striving to hear the submissions of all parties and in all fairness I have to protect the members from the GCB as well. So I'm going to ask you to limit your remarks to the substances, the issues and not make personal remarks about....
MR MALATO:: Thank you Chair. Right my submission is that there is a strong feeling that if there's any possibility of inviting the judges in a polite way let that be done, because we cannot help a deal if we talk about people but as we can request not to subpoena them like they have committed offences. Thank you Chair.
MS SOOKA: Thank you Mr Malato. Professor Mason?
PROF MASON:: I'm just wearing my own hat although I've got a label here. Because I haven't got any mandate from anyone to discuss. Just a couple of thoughts. I think the point made by the GCB that maybe sitting judges shouldn't be here but I see there's no reason at all why past judges and retired judges and maybe Judge Rabie should be invited to come along here. And explain what went on when he was there. And there might be other retired judges who also. The other thing is it might be that we should give those judges who have been named in these papers an opportunity to respond. So if they want to come along here and respond to those allegations they should have an opportunity to do that.
Just on Mr Coetser's point about only 5% of the judges work with criminal and political cases but those 5% dealt with life and death issues and so they were the very important cases. The big gap really in today's proceedings has been the magistrates. They've been hearing hundreds of thousands of cases every year. Hundreds of thousands of people going to jail every year through the magistrates courts and we haven't heard virtually a word. And we got a very, with respect derisory comment from the Magistrate's Commission which merely turned the questions back to you, and asked you guys a whole lot of questions. So we've heard virtually nothing. I don't know if the Director General of Justice is going to address that issue maybe on Wednesday.
But also just Mr Wallace's point. It's true that we've got to look at the independence of the judiciary, at the same time we're at a particular moment of history and this is rally a hangover of the transition and the transformation process of trying to understand where we came from and where we're going. So we need to look very carefully I think about what is the position of sitting judges and should some mechanism be opened up to hear their point of view. But I think at least they should be given the opportunity to respond. Those of them that have been mentioned in these papers.
MS SOOKA: Thank you. Perhaps I could just for the record indicate that an invitation was sent to the (...indistinct) as well asking them to make submissions. Let me say that most of them were quite grateful for the invitation but are quite ill, some of them suffer from Parkinson's disease and are very sorry that they've not been able to make a comment. But I think the question that you raised about the I think the dilemma of the question of judicial independence and of course the fact that you want judges to talk and account for themselves and the fact that we're uniquely placed at this moment in our history where we're looking at a moral accounting of sorts is some, is an issue which the Commission will probably grapple with and will try and get some kind of feedback from the parties participating tomorrow and Wednesday. It is true that the magistrates in fact have not responded. And I hope that the Department of Justice will in fact respond because the magistracy did in fact fall under the Department of Justice before. But we'll try and get some answers from them.
Mr Collerfin from the Human Rights Commission.
MR COLLERFIN:: Thank you Chairperson. From listening to the submissions during the course of the day it is clear that the overwhelming thrust is that we had a judiciary that was very much executive minded. Now the question is did that happen fortuitously or by design? I'd like to think that it happened by design. I think for the apartheid state to sustain itself it must have realised that it needed a judiciary that was both responsive and sensitive to it's needs. And went about appointing such a judiciary. And in support of that I'd like to just quote two lines. The one is
"There can be no real doubt that one of the factors considered by the Minister was the political views of the candidate."
Secondly, I'm quoting as well -
"There was a widespread perception that those judges who were known to oppose apartheid were often not selected to sit on the bench when security or apartheid matters were to be traversed."
This seems to suggest to me some kind of design. These words belong to the former Chief Justice Mr justice Corbett as well as his former deputy, Mr justice van Heerden. And I think in the sense of accountability if this is the perception that was there and there's nothing in these submissions to indicate that, that wasn't the case, I think in terms of accountability the country and this Commission is entitled to have them be here and say - Well if that was your perception and how was it designed? Who chose these judges to sit on these cases? You saying that this happened, please tell us that. Because I'd like to believe that if you choosing judges you choose them with a particular objective in mind and from my limited knowledge of the criminal law that would well be defeating the ends of justice. But I'm not suggesting a prosecution. I'm saying that at least prima facie we're entitled to that kind of explanation.
Chairperson I'd like to also think that having appointed these judges the executive must have been surprised at one stage by the level of enthusiasm that was displayed by these judges that went well beyond their own expectations, and that indeed is sad for me. It's sad that when as a practitioner you often saw judges going well beyond the call of duty. And I do believe that in accounting for the past without dealing with the role of these judges in the way I've suggested can never be complete. And the work of this Commission can never be complete.
It has been said by many eminent judges, I think Judge Baquati of India was one of those, that a court and a justice system must provide a haven for those who are oppressed and bewildered. I think we can sit here and analyse for the next five days but I think we all in this room must accept that our judiciary and our legal system failed to do so. And it doesn't help unpacking that anymore except to say it was a dismal failure. I think the fact that your Commission has received 12 000 submissions from victims is perhaps more than compelling evidence of that failure. And perhaps the idea is also to move forward but you can't move forward without examining the past and without examining that role.
Mr Dyzenhaus has said this morning in response to a question that that legacy probably still exists in many parts of the judiciary. How do we feel comfortable proceeding into the future without addressing that legacy? I think it's dangerous to just assume that it will go away. It is still there. I see it daily and I think many of us here see it as well.
With regard to the submission made by Paula McBride. I worked with her for many years and I might be accused of partiality but again in the day-to-day work that we did I experienced the anguish of those people who sat on death row who were allocated pro deo council and who never got a fair shake. Very much the case was that justice was by and large determined by the quality of the representation and money got you off and again that is the reality of today.
So I'm saying that we perhaps haven't quite learned from the past as we still continue with the mistakes we make.
With regard to Mr Stefendas I'd like to support the recommendation made by the person making the submission that someone go to see him. I did speak to him a couple of times prior to the establishing of this Commission and we always indicated a great respect for your Chairperson. And if that is at all possible I think it will go a long way, that act of compassion will go a long way towards repairing some of the harm we've caused this man over the years. And I think if the Commission is about compassion then that may not be asking for too much.
I'd like to support the calls that we look at the magistracy carefully because that is after all where most South Africans experience justice or a lack of it. I think there are good magistrates who have taken steps to perhaps make their courts more friendly but I think a lot still needs to be done. Racism differentiated treatment is still very much the order of the day.
Just to give you a brief example if I may. I went to a rural part of Mpumalanga the other day and a person was found dead in a field, eyes gouged out. And apparently the analysis of the first officer of the scene was death by natural causes. Three days later a sheep went missing and the entire police force got into action. People's pots were opened and if meat was found in your pot you were suspect. I'm just giving you the example to indicate to you that the value of black life is still very much down on the scale there, even four years into a new South Africa and we need to deal with that.
I don't want to respond to the point of Mr Wallace but I'd like to say that independence is not an absolute concept and it doesn't exist in the air. Judges live and exist within a society and while we must ensure that we respect their independence that independence cannot exist in the air so to speak.
Thank you Chair. I think those are the points I'd like to make for now. Thank you.
CHAIRPERSON: Thank you Mr Collerfin. Thank you.
MR MOLDENHAUER: Thank you very much. I'm Heinrich Moldenhauer and I'm chief magistrate in Pretoria. Mrs Chairman I think that the Commission has experienced first-hand some of the problems that magistrates have from some of the lawyers. They always ask for adjournments or postponements. I'm speaking in my personal capacity as Chief Magistrate of Pretoria and I want to concentrate on the present and the future on the same line as our Minister.
I'm one of those our Minister referred to as impatient with the pace of reform within the judiciary. Unfortunately at the present we still have within the judiciary people who adhere to the old ideas and even old ways of doing things. That attitude regarding submission of the Magistrates Commission is such an example and I'm ashamed that the Magistrates Commission did not see it fit to make a submission.
Mrs Chairperson we need the assistance of the judiciary, the business and the community as a whole to assist us to make the very much changes that we need in magistrates offices. As our Minister said they must be more acceptable for the public. We must change it to a place where everyone always be treated with dignity and as human beings in the court as well as in the magistrates office. And of course the magistrates offices must be more user-friendly. For example in Pretoria we have now an information desk for the past month and a half and I can tell you that it is doing a lot to make it user-friendly. The information desk handle on a daily basis a lot of enquiries whereas in the past there was no such facility where people could ask where to go or where a certain court are and so on.
We especially need a lot of changes regarding the maintenance courts and the children's courts. In Pretoria at the courts we have done a lot but the backlog in this regard is tremendous. Not only must we make the environment within magistrates offices more user-friendly but most important thing is the changes of attitude. This is a very difficult task. Mrs Chairperson even now in 1997 I find myself in the middle of a role where even the object of some articles in Afrikaans Sunday newspaper because of the fear of changes of some of the magistrates who still clinch to the past. And maybe that is an answer to my friend why the magistrates did not make submissions.
One of or some of these allegations by a few magistrates for example as regarding the change of attitude with photo's that are attached to inquests, photo's of people who have lost their lives in unnatural way, photo's that are really not relevant to make a judicial decision on whether someone was unlawful responsible for the death or not, photo's of naked bodies and so forth and in asking the magistrates not to allow those type of photo's as part of the record they now refer to it as I'm interfering with their discretion. You see that is that deep-rooted change of attitude that we must still bring about. This whole row that erupted in Pretoria is now a clear racial issue where the black staff are full of praise for the changes I brought about in the Pretoria magistrates office but some of the white magistrates resist all such changes. Mrs Chairperson we need training of the magistrates and make them more sensitive for the human rights as a whole.
To conclude I would like to plead with the Commission and the community at large, please assist us who are willing to change the structures of the past and also to make magistrates offices a place that can be proud of and upheld the human rights and where every person can feel and be treated like a human being. Thank you.
CHAIRPERSON: Thank you Mr Moldenhauer. Mr Maloi?
MR MALOI:: Thank you lady Chair. Jake Maloi, Black Lawyers Association. I'm not going to take your time. Much of what has been said here is common cause. It may be perhaps necessary to mention that some of the issues raised will be addressed in our submission in due course.
However I find it compelling for me to mention that my understanding of this Commission is not to pass judgement upon the guilt or not derelict of duty or negligence or whatever of judges or anybody else for that matter, the letter and the spirit in which this Commission was set up is targeted in addressing the injustices of the past and extending a hand even if it's a token that wrong was done, we are changing.
I do not see in the slightest manner how the presence of judges in this Commission, we don't say the entire judgeship should come here, representative could have done the job and said this is what we understood and extended a hand to not the Commission, I don't think it's the Commission they owe anything to, I don't think it's the President of the land, I think it's the South Africans from all walks of life. If they could hear that judges did not see themselves above everything else and talked to us as South Africans via of course the TRC that by way of achieving reconciliation would have gone a long way.
The past atrocities under the apartheid regime were supported mainly by two structures, and that was the security forces and of course the courts. It's common cause. It's a line running right through the submissions made here admitting those wrongs of the past. Because we fought those two structures apartheid I believe would not have lived one day. It would not compromise the independence of the judges to indicate their willingness to share in this exercise. There was no pronouncement going to be made as to their credibility, as to their independence, as to their guilt or otherwise to the extent that any argument that the mere fact that we now have a Bill of Rights and a Constitution that in itself is a guarantee not warranting the presence of the judges goes beyond my comprehension. I say that because everybody else knows that the rights as contained in that Constitution under the Bill of Rights are not self-activating rights and the majority of people who do not, that do not know about their existence cannot expect that simply because a right has been infringed then automatically there will be a remedy on the way. No the contrary is that those people must still go through the judicial process to address that infringement.
As I have indicated the decisions of the judges would have wider impact than anything else. The magistrates where they were had no choice once a judge somewhere had made a decision they had to follow that decision. And in the magistrates courts that's where the majority of infringement of human rights took place perhaps not intentionally, at times they were just referred to a decided case and say: "What can I do in the light of this case?" And pass the judgement.
My feeling, and I believe I articulate here the feeling of my organisation is that it would really, much as we respect the independence of the judges, that is a salient principle but we are in a different country, we are in a different stage of our development, in a normal situation where democracy is the norm one would not expect the judges to come and explain anything because there are in-built balances and checks to see to it that the right things are done. However, especially in out position where we are faced with transition that gesture from the judges of having come and made a submission I want to believe would have gone a long way towards facilitating the reconciliation.
The security forces have done it with a measure of success by engaging with the people on the ground and putting up community policing structures. It doesn't mean now they are subjecting themselves to those people or they are losing their authority or power, I believe it only serves to show that we are moving away from the normal, from the abnormal to the normal. I thank you lady Chair.
CHAIRPERSON: Thank you Mr Maloi. I would like to thank the panellists for the crisp way in which they have isolated the issues which they wanted to actually deal with. I do believe that many of you are going to address them again in your submissions tomorrow. I would plead however that we not be defensive because this is a time of self-introspection in fact for the different sectors of the legal profession. The reason the Commission is here is because we're investigating why gross human rights violations took place. And unfortunately one of the areas which is a problem is the fact that we did have a judiciary which called itself fairly independent and respected. However given that gross human rights violations did occur.
I think the question that the Commission is faced with is not that the judges have not engaged but why they in fact have chosen not to try and answer some of the questions by way of an oral presentation and in fact response. It is a difficult one and we are going to grapple with that but it's not an easy one and I think that the Commission will have to give some thought to that over the next few weeks.
Tomorrow morning I'm going to ask that people do arrive at nine 'o clock so that we can actually start then. I know it is actually our fault for starting late. There were hitches with the question of the power and sound system. We have allocated a half an hour for each grouping and I'm going to ask people to try and think of that overnight so that they can address the issues in a much more shortened fashion. We will allow people to make representations in writing to issues that have been raised in other people's submissions and this is not in fact the place at which the Commission is going to make findings.
So I just put that on the table and ask people to come tomorrow at nine 'o clock. But in the meantime I'd like to thank you on behalf of all of us and expressly on behalf of the Archbishop who in fact had thought we would finish at four-thirty and had arranged to leave at five. We thank you for participating today. We know that it was quite a long day and we ask people to come back tomorrow fresh to start again. Thank you.
HEARING ADJOURNS
ON RESUMPTION ON TUESDAY 28 OCTOBER 1997
MS SOOKA: The Archbishop and Dr Boraine are very apologetic about the fact that they cannot actually be here today but they have other matters which need attendance and attention and so they've asked me to note their apologies here.
We're going to be starting with a submission from the General Council of the Bar and I would like to welcome Advocate Jules Browde and his team who are presenting for the Bar Council. I'm going to ask you to begin. Before we do I'm going to ask Mr Malan to administer the oath please.
JULES BROWDE: (sworn states)
MS SOOKA: Mr Browde over to you.
ADV BROWDE: Chairperson, commissioners, ladies and gentlemen, the GCB as it is more commonly known has accepted your invitation to make written submissions to you and now to appear before you. It has done so by a unanimous decision of it's executive, representing all constituent bars in South Africa earlier this month. We thank you for the opportunity to be here today.
Personally I regard it as a special honour to have been asked to speak on behalf of the South African bar. My only qualifications being that I have almost completed 50 years as a member of the Johannesburg bar at which I have practised continuously and was it's chairman twice in the turbulent times with which we deal.
You will know Madam Chair that the written submissions that we filed with you a week ago and copies of which we have given to other organisations representing legal practitioners to senior members of the judiciary and which we have released to the media are extremely detailed. They cover not only the 34 year period with which you are directly concerned but, in the interest of a wider perspective tell you something about the history of the GCB since it's inception in 1946 and the role it endeavoured to play in the administration of justice from the outset until the commencement of your period of scrutiny.
It is not my intention this morning to seek to reiterate all this material in the short time at our disposal. We also believe that would not be particularly useful to you. What I shall rather seek to do is to sketch salient features of the submissions and to concentrate on one or two aspects emblematic of our stance here today.
I should begin with your central enquiry. What we understand you Madame Chair to wish to establish is how it was that a developed legal system drawing upon rich civil law and common law antecedents could yet not have prevented the gross violations of human rights which day-by-day over the past two years have been remorselessly tabulated not only in your own hearings but in a series of criminal trials across the country. The cornerstone of the law was after all so clear. It was simply stated in these words by the Judge President of the Eastern Cape in 1962, Mr Justice de Villiers who said in the case of KANYILE v MINISTER OF JUSTICE and I quote:
"The supreme court is the protector of the rights of the individual citizen and will protect him against unlawful action by the executive in all it's branches in the same way as in England the supreme court will protect the British subject even from the Crown. The court shall rather be astute to find the means of exercising it's function and jurisdiction in the protection of a citizen from a potential inroad on his liberty."
What went wrong? That's the first question. What can be done to try to ensure that it doesn't happen again? That's the second question. After all it has been memorably said - those who will not learn from history are condemned to repeat it.
The GCB Madam Chair you will find in our written submissions a short exposition of the GCB a federal body in respective constituent bars which are voluntary associations of advocates. When it was formed in 1946 the decision was taken precisely because two bars had colour bars in place that no union of advocates could be formed. This explains much of the history that follows. At certain times because a principle of unanimity was applied the GCB was prevented from speaking out on certain issues. When that happened however almost invariably constituent bars took up the cudgels. Ultimately in the mid-1970's the GCB and individual bars brought great pressure to bear upon the single bar where the colour bar remained. I shall say more of that in a moment.
I come to the legal edifice of apartheid. A significant portion of our written submissions comprises an overview of the house that apartheid built. We seek to trace the price paid for the application of the Westminster constitutional system in a distorted society, one in which only a minority could vote. The result was an unrepresentative legislature and an all-powerful executive. Under such a system the courts of course had a truncated constitutional role. The laws were immovable objects, incapable of being struck down by the courts as is now the case. Perhaps the cumulative effect of this is best summarised by what we say in volume one in paragraph 14 and 15. We say:
"It must be borne in mind that notwithstanding on occasions were the opposition both inside and outside Parliament the National Party throughout the apartheid era enjoyed a sufficient majority in Parliament to enforce it's will from a legislative point of view. Coloured people were deprived of the vote notwithstanding the protest of inter alia the torch commando. Universities were segregated notwithstanding the united opposition of the so-called English speaking universities to such moves. Political parties were segregated totally against the will of their members. Vast numbers were removed from their homes against their will in terms of resettlement programmes and the Group Areas Act. People were detained without trial and, as no one can now deny, tortured and murdered despite many protests. In every instance the National Party pursued it's goal of apartheid with ferocious determination overriding all opposition. It is impractical and unrealistic to think that the courts could have stopped those excesses. This is not to suggest that the courts were powerless in the face of parliamentary injustice. The courts undoubtedly had the capacity in many instances to mitigate the harshness of the laws of apartheid. And even where this was absent judges could have chosen to speak out forcibly against the subversion of fundamental principles of justice."
There are a number of notable instances of the former and some, though significantly less of the latter. In the face of an extraordinarily powerful and ruthless state it is to some degree surprising that as much was done and said as was done and said. However in the light of the gross injustice of the laws in question and the abuses of human rights they permitted it was an undoubted failing that so few of the judiciary sought to mitigate the effect of these laws or express their revulsion at them.
The judiciary, Madam Chair, in our submission we express a number of criticisms in relation to the supreme court bench in South Africa and the way it was constituted. But we conclude as follows:
"Whilst we have expressed criticisms of the shortcomings of the bench the position remains that throughout the apartheid period the supreme court bench preserved a substantial measure of judicial independence. Across the field of civil law there is no question that it maintained very high legal standard in accordance with internationally acceptable standards of civil procedure. The application of those standards to the peculiar problems posed by the apartheid policy was inadequate for the reasons dealt with above."
Overall we believe that the record of the bench was fairly summarised by Arthur Chaskalson, SC, as he then was at a conference in 1989. I believe you already heard this Madam Chair but it bears repetition in our submission because it is an admirable résumé of the role played by the judges.
"In reviewing the history of the courts of this country...."
said Mr Chaskalson,
"....some writers have criticised the way in which South African judges have discharged their duties over the years. That they could have done better than they did is I think now clear but that is true of all of us and little is to be gained by lamenting the past. What is important is the future and it is here that I believe that we will come to appreciate that we owe much to our judges and a great deal to some of them. For despite all the paradoxes they have somehow held to the infrastructure and had kept alive the principles of freedom and justice which permeate the common law. True at times no more than lip service has been paid to these principles and there have been land-mark cases where opportunities to give substance to and uphold fundamental rights have been allowed to pass without even an expression of discomfort, let alone a vindication of the rights. Yet the notion that freedom and fairness are inherent qualities of law lives on and if not reflected in all decisions is nonetheless acknowledged and reinforced in numerous judgements of the courts. That is an important legacy and one which deserves neither to be diminished nor squandered."
And what of the bar itself Madam Chair? We seek in our submissions to explain something of the structure of the bar. This includes it's central article of faith, professional independence and consequential aspects such as the duty to accept briefs, the so-called Carbonic(?) rule, and the balancing of duties to a client and to the court. We say something to of what the bar has sought to do internally particularly to address the distortions within our society which are a lingering legacy of depravation and discrimination particularly in the field of education.
We have a long way to go and there is no room for complacency. Yet we note there are now more black members of the Johannesburg bar than the total number of counsel at a number of bars while at the Natal bar 53 out of a 182 members are now black.
We are also intensively engaged in advocacy training programmes with the significant support of a number of members of the judiciary and professional bodies outside the country. The GCB has been invited to assist the Lesotho Law Society in advocacy training and it hopes that in future it may be able to assist in advocacy training in other neighbouring states.
What did the bar do in the years 1960 to 1994? As a profession the bar, through the GCB and through a number of constituent bars spoke out time and again during the years in relation to which this enquiry runs, against legislative and executive action which it is clear fostered gross abuses of human rights. We document them all in the volumes which are before you.
May I take you to one or two examples which give you the spirit of the times. In volume 2 and page 114 under the heading; "The Second Decade 1970 to 1979" there is the following and I shorten it because of the time constraints Madam Chair.
"On 22 May 1970 the GCB chairman Coetzee QC had a meeting with the Minister of Justice to discuss the detention under the Terrorism Act. The meeting was such that on his return to Johannesburg he sent telegrams to all the chairmen of the bars with the request to let him know urgently whether they thought that an executive committee meeting should be convened for the Saturday immediately following."
Coetzee reported that he referred the Minister to the exchange of correspondence in 1969 and his subsequent interview with the Minister in particular with the unfortunate wording as he put it of the Terrorism Act and the nature of some of it's - and again in his words unfortunately "draconian provisions".
The Minister at the outset made it clear and I quote from the Minister:
"Dat oor die wet self hy nie bereid is om na enige vertoë meer te luister nie."
He remembered how the GCB had put it's case about the Act to him nine months previously but emphasised that the adoption of the Act in Parliament in 1967 was unanimous with the exception of Mrs H Suzman M.P.
Then Coetzee goes on:
"Ek," sê Coetzee "het hom daarop gewys dat ons beroep nie verbonde is aan die oposisie nie en dat dit ons in beginsel nie gaan om regeerings parteie of oposisie parteie nie. Ons is begaan slegs oor dit wat die wetgewende of uitvorende gesag produseer. Maar gesien sy houding dat hy nie bereid is om die wet self verder te bespreek nie sal ek nie verder daaroor praat nie."
That's the first one I'd like to refer you to.
Then I refer to the next one at pages 118 and 119 which reads as follows:
"A special meeting of the Natal Bar was held on 10 November 1971 to discuss the desirability of issuing a press statement relating to detention without trial and possibly to the death of persons detained without trial in terms of the Terrorism Act. The chairman, Didcott SC read a statement issued by the Cape Bar Council expressing deep concern about the situation and recommending a judicial commission of enquiry. He stated that he'd ascertained from the chairman of the GCB that the GCB did not propose to issue a statement or to make representations to the minister...
and I quote -
"....because it was felt the matter was a political one",
He added that it will be a long time before any ...(tape ends) statement.
On various occasions the Society of Advocates in Natal has expressed the firm opinion that it is not in the interest of justice for legislation to sanction the detention of anyone without simultaneously providing him with the right of adequate, swift and regular access to the courts. This view has not altered. The opportunity for the courts promptly and regularly to investigate the treatment of individual detainees would substantially increase this prospect, on the one hand that any actual now practises were eliminated, and on the other hand that unfounded complaints about their existence is shown by an impartial tribunal to be without justification. Either result would immeasurably strengthen the administration of justice in South Africa and enhance it's reputation.
Didcott SC was subsequently asked to prepare a draft letter to be placed before the executive committee of the GCB relating to a recent statement by the Minister of Police in which he'd expressed disapproval of the manner in which defence council were endeavouring to establish that political detainees were being maltreated by members of the police force. The council felt that since the primary aim of the Minister's statement had been to attack communist activities in the country. The innuendo was that council who endeavoured to establish that detainees were being improperly handled were assisting the communist cause. It was generally felt this type of approach was tantamount to intimidation of council, more particularly in view of the fact that council with communist affiliations were by government edict not permitted to practice.
The next one Madam Chair is page 138 which reads:
"At the July 1981 meeting of the GCB the council affirmed it's unequivocal opposition to the principle of bannings and detentions without trial. It recorded the council has on previous occasions voiced it's concern and disquiet in this connection. It has for many years been implicit in the legal system of all civilised countries that no man should be punished or otherwise made to suffer by the state except for the distinct breach of law proved in the ordinary manner before the courts of the land. Traditionally courts in South Africa have acted as protectors of the rights of individual citizens and the proper administration of justice requires that such protection be given even against the executive."
Then the last one I want to briefly deal with concerns the fact that in 1972 the government promulgated the notorious Ovamboland regulations which permitted the flogging of accused persons after a trial before a tribal court which disregarded virtually every requirement for a fair trial. The GCB wrote to the Minister for Bantu Administration and Development, as he was then called, and protested. Eventually a response was received not from the Minister but from the Minister's secretary. He wrote and it was in Afrikaans but I translate it:
"My Minister points out that the situation has not been approached by the administration in a vacuum. We are dealing with terrorist movements and individuals and cannot adopt a theoretical and academic approach but must have a practical and effective goal in mind."
This Madam Chair was typical of the responses to protests from the bar. But they were continued.
There are many such examples of which these are a random few of vast efforts to influence the government and the public to turn away from the unjust laws. But these few examples will suffice for present purposes.
I already said that two constituent bars of the GCB applied a colour bar. What this meant to the victims was expressed at a dinner given in his honour by the Johannesburg Bar earlier this year in these words by in these words by our present chief justice his lordship, Mr Justice Mohamed.
"The pain and humiliation were intense...."
he said,
"my status was determined by reference not to what I was but was not. I was non-white. It set about imposing on me a badge of inferiority sought to be written on my forehead. It's dominant consequence manifested itself in rejection and exclusion. A constitutional exclusion from the bar in my home city, which was Pretoria. leaving me to find an alternative bar in Johannesburg; exclusion from the right to occupy any office in chambers for counsel in Johannesburg, leaving me for 12 years to squat from hour to hour, from office to office in the chambers of one or other colleague temporarily in court; exclusion from the common room frequented by these colleagues leaving me to consume my sandwiches in vacant offices or corridors, and when this was not convenient even in toilets on occasions; a directed but unheeded exclusion from the robing room used by other colleagues leaving me to cope with the consequences; exclusion from the right to sleep overnight in Bloemfontein during appearances before the highest court leaving me to skulk across the border of the Free State before sunset to find accommodation from night-to-night more than a hundred kilometres away. These exclusions reinforced a multitude of other exclusions which denied my humanity. They inflicted deep wounds inside me often revived in the telling with a special kind of pain without bitterness."
We trace in our submissions, Madam Chair, the conflict within the profession in relation to the colour bar. And the decision ultimately taken by the Pretoria bar in 1980 to remove the offending clause from it's constitution. I would want to read to you a resolution adopted by the Pretoria bar Council earlier this year, namely on the 17th of August 1997. It reads -
1 Die vereniging bevestig die korrektheid van die besluit wat dit meer as 'n twee derde meerderheid gedurende 1980 aanvaar is. Waar volgens die klosiele wat lidmaatskap to die vereniging tot blanke advokate beperk het uit die grondwet geskrap is.
2 Die vereniging spreek onvolwaardeliks sy spuit uit teenoor alle persone wat voor 1980 nadelig getref is deur die voormelde klosiele en vra om verskoning daarvoor.
3 Die voorsitter word gemagtig en gelas om individië wat al dus benadel of gekwets is, was te identifiseer en die kwesie met sodanige individeë in die reine te bring.
En daar na
3.1 Die voorgaande besluit op die bali se internet fasiliteit in beide Afrikaans en Engels te publiseer en 3.2: die voorgande besluit met gepaste persverklaring bekend te maak."
I turn now to the question of membership of the bar, and one matter which after all these years called for particular attention, this is the striking off from the roll of advocates Abraham, or Braam as he was better known, Fisher QC, we tell the tale in our submissions but the following is I believe a sufficient précis of the story for present purposes. And Madam Chair might I say that I think the story of Braam Fisher contains in it a great deal to be learned about the bar and about advocates and about the administration of justice generally.
Abraham, Braam Fisher was one of South Africa's leading advocates. He was admitted to practice as an advocate of the Transvaal provincial division of the supreme court on the 10th of January of 1935. He was appointed Queen's council on the 2nd of November 1951. He was the son of the Judge President of the Orange Free State and the grandson of the Prime Minister of the Orange River Colony. He was a Rhodes scholar. His membership of the South African Communist Party and his opposition to the policies of apartheid were public knowledge. He served for many years on the Johannesburg bar Council and was elected chairman.
On 24 September 1964 Fisher and 13 others appeared before a regional magistrate charged with three counts of contravening the Suppression of Communism Act 44 of 1950. The first count alleged that the accused were office bearers or members of an unlawful organisation, namely the South African Communist Party.
The second count alleged unlawful activities in respect of the South African Communist Party.
And the third count alleged acts calculated to further the achievement of the objects of communism.
At the commencement of the trial Braam Fisher applied for bail. He testified in the bail application, he stated among other things that he had no intention of leaving the country and that he would stand his trial. At that stage he'd been on brief for a particular client which required him to argue an appeal before the privy council in England. Fisher was represented in the bail application by the late advocate H Hanson QC. During the course of argument Hanson assured the court that Fisher would return to stand his trial. The magistrate granted him bail and he was permitted to leave South Africa for England in October 1964 to argue the appeal in the privy council. He returned to South Africa to stand trial which commenced on the 16th of November 1964.
On Monday the 25th of January 1965, that's some three months after the trial commenced, Fisher failed to attend court for the first time. His counsel read out a letter from him dated 22 January 1965. The letter reads as follows:
"Dear Hanson
By the time this reaches you I shall be a long way from Johannesburg and shall have absent myself from the remainder of the trial. But I shall still be in the country to which I said I would return when I was granted bail.
I wish you to inform the court that my absence, though deliberate, is not intended in any way to be disrespectful, nor is it prompted by any fear of the punishment which might be inflicted on me. Indeed I realise fully that my eventual punishment may be increased by my present conduct. I have not taken this step lightly as you would no doubt understand I've experienced great conflict between my desire to stay with my fellow accused and on the other hand to try to continue the political work I believe to be essential. My decision was made only because I believe that it is the duty of every true opponent of this government to remain in this country and to oppose it's monstrous policy of apartheid with every means of it's power. That is what I shall do for as long as I can.
In brief the reasons which have compelled me to take this step and which I wish you to communicate to the court are the following -
There are already over 2500 political prisoners in our prisons. These men and women are not criminals but the staunchest opponents of apartheid. Cruel discriminatory laws multiply each year. Bitterness and hatred of the government and it's laws are growing daily. No outlet for this hatred is permitted because political rights have been removed. National organisations have been outlawed and leaders not in jail have been banned from speaking and meeting. People are hounded by pass laws and by group areas controls. Torture by solitary confinement and worse has been legalised by an elected parliament. Surely an event unique in history.
It is no answer to all this to say that Bantustans will be created nor that the country is prosperous. The vast majority of the people are prevented from sharing in the country's wealth by the colour bar, in industry and mining and by the prohibition against owning land saving relatively small and grossly overcrowded parts of the country where in any case there exists no mines or industries. The idea that Bantustans will provide any solution would deceive no one but a white South African. What is needed is for white South Africans to shake themselves out of their complacency, a complacency intensified by their present economic boom built upon racial discrimination.
Unless this whole intolerable system is changed radically and rapidly disaster must follow. Appalling bloodshed and civil war will become inevitable. Because as long as there is oppression of the majority such oppression will be fought with increasing hatred. To try to avoid this becomes the supreme duty particularly for an Afrikaner because it is largely the representatives of my fellow Afrikaners who have been responsible for the worst of these discriminatory laws.
These are my reasons for absenting myself from court. If by my fight I encourage even some people to think about, to understand and to abandon the policies they now so blindly follow I shall not regret any punishment I may incur. I can no longer serve justice in the way I have attempted to do during the past 30 years. I can do it only in the way I have now chosen.
Finally I would like you to urge upon the court to bear in mind that if it does have to punish any of my fellow accused it will be punishing them for holding the ideas today that will be universally accepted tomorrow.
Please accept my deepest thanks for handling my case as you have. I do hope that my conduct will not embarrass you in any way.
Very sincerely,
Braam Fisher."
Just two days later Madame Chair, and on 27 January 1965 the Johannesburg bar council resolved to instruct it's attorney to prepare an application to court for the removal of Fisher's name from the roll of advocates.
On 4 February 1965 Fisher wrote another letter to Hanson dealing with the decision to have him removed from the roll of advocates. It is a long letter and this time I quote only the following excerpts.
"My dear Harold
Since I walked out on you on the 25th of January, and I again express the hope that this in no way embarrassed you personally, I've been following the press and have seen the reports of the decision in terms of which it is said that the Johannesburg bar council intends applying to court in order to have my name struck off the roll of advocates. When an advocate does what I have done his conduct is not determined by any disrespect for the law nor because he hopes to benefit personally by any offence he may commit, on the contrary, it requires an act of will to overcome his deeply-rooted respected legality and he takes the step only when he feels that whatever the consequences to himself his political conscience no longer permits him to do otherwise. He does it not because of a desire to be immoral but because to act otherwise would for him be immoral.
I cannot believe," says Braam Fisher, " that any genuine protest made against this system which has been constructed solely to further apartheid can be regarded as immoral or is justifying the disbarment of a member of our ..."
I think it important to point out that in the founding affidavit supporting the application for striking off Festenstein QC, on behalf of the Johannesburg bar council stated the following:
"To the best of my knowledge and belief the respondent," that was Braam.
"...has at all times since he commenced legal practice until the 25th of January 1965 been regarded by the courts of the Republic, by the members of the Johannesburg bar and other legal practitioners as a most honourable and trustworthy member of the bar and has at all times observed the highest ethical standards of legal practice, and has been in every respect a worthy and distinguished member of the legal profession."
This view Madam Chair is endorsed by the present Johannesburg bar council. I think it important to point out in fairness to the then bar council that the sole basis of the application for striking off was that Fisher had dishonourably breached his undertaking to the court to stand trial. The fact that he was facing charges of a political character did not form part of the application. Nor was it based in any way on his political affiliations. In fact over a long period every bar council, every bar council except Pretoria made it clear that they were against advocates not being permitted to practise because of their political affiliations.
In his judgement striking Braam Fisher's name from the role of advocates the then Judge President, Mr Justice de Wet referred among other things to the case of ex-parte Crowzer which is reported in 1905 of the Transvaal supreme court reports. The applicant in that matter had been enrolled as an advocate at a time when the applicant was
a prisoner on parole. He was convicted in England of an attempt to incite the commission of the crime of murder and was disbarred. Crowzer served his sentence in England and returned to South Africa to resume his practice. The court granted his application for re-admission as an advocate. Indeed Crowzer later became a judge of the supreme court.
In the judgement that I've referred to Mr Justice Solomon said the following, that is in ex-parte Crowzer.
"The policy in this country as expressed in Ordinance 22 of 1903 has been as much as possible to wipe the slate clean and not to attach too much importance to acts committed under such circumstances. I think we are justified in acting in the same spirit as that in which the government has acted and as such as far as possible drawing a veil over the acts which were committed during the course of the war. And it is considerations of that nature which lead me to the conclusion that we are entitled to say the character of the applicant is not such as to justify us in refusing to admit him to the ranks of the bar."
In Fisher's case there then follows a dictum of the Judge President who gave the judgement of the court which shows in our submission the dynamic nature of human thinking. He said, and I quote:
"If the respondent, that is Braam Fisher, were to apply for readmission at some future time similar considerations may apply. It is impossible for this court to foresee what will happen in the future. We are concerned with the laws in force at the present time and with a structure of society as it exists in this country at the present time."
Madam Chair some 30 years have passed since this judgement was delivered and we now live in different times and under a new democratic constitutional legal order. Those who took the decision to apply for the striking off of Fisher's name from the roll of advocates must have been confronted with an invidious problem. They recognised that Fisher had been regarded as a most honourable and trustworthy member of the bar, that he'd been in every respect a worthy and distinguished member of the legal profession. They believed that notwithstanding the esteem in which he was held by all the deception regarding bail, coming as it did from a senior practitioner, justified the striking off. There is no doubt that even in 1965 the issue was painful and divisive for those involved.
Many of the leaders of the Johannesburg bar felt that their personal relationship with Fisher was such that they would not be willing to appear in the application for his striking off. Thus it was that the then chairman of the GCB, who practices in Durban, was approached to move the application. For him the task was a distressing one since he too had a great respect and liking for Braam Fisher. A memorandum by him is included in our submissions Madam Chair as is a set of the Johannesburg bar council minutes dealing with the application.
Today with the benefit of hindsight there is a different perspective. Fisher was confronted with an acute dilemma. He was torn between his fidelity to law which he'd faithfully served for many years and his profound commitment to opposing the injustices of apartheid. He acted not out of self-interest but from political and moral conviction. Far from securing any personal advantage he realised that his actions would result in increased punishment.
The course he followed has been aptly described in the following way by Mr Geoff Budlander in an article in Consultis in 1995 entitled: "Braam Fisher, the man and his lawyer." We submit it to you now Madame Chair because it encapsulates a dilemma of a lawyer practising an honourable profession in an unjust society. And will make I think a significant contribution to what you are attempting to ascertain. Budlander says:
" The story of Braam Fisher dramatises and illuminates the typical questions of what the duty of conscientious lawyers is when the government, and particularly a non-representative government represses it's citizens. Many options present themselves. Does one simply go about one's business hoping that this unpleasantness will go away? Should one work within the immoral system as a lawyer trying to mitigate the evils of the system and to resist those who are it's victims? Or should one distance oneself completely and attempt actively to undermine and subvert the system?
Braam Fisher's life demonstrates the first option was never acceptable to him. He appears to have attempted to follow the second option for a long time. And then he ultimately chose the third option; resistance and rebellion. Because in his words which I have already alluded,
"I can no longer serve justice in the way I've attempted to do during the past 30 years. I can only do it in the way I have now chosen."
these are typical questions which will and should trouble all lawyers in all places. Honourable people have to attempt to make honourable choices and the story of Braam Fisher shows that it is the third option, Fisher's option which is the most difficult and it requires the greatest idealism and the greatest self-sacrifice.
The Johannesburg bar council recently acknowledged the courage and integrity of Braam Fisher on 18 July 1995 it resolved to take steps to honour his memory. Ultimately Madam Chair any application for striking off poses a fundamental question. Is the advocate a fit and proper person to continue to practice? Advocates are struck from the roll in order to protect the public from unscrupulous and dishonest practitioners. While recognising that opinions may differ the present Johannesburg bar council has resolved that it does not hold the view that Braam Fisher was not a fit and proper person to continue to practice as an advocate. It believes that a grave injustice was done to him and today can only apologise to his family - which it does. The judgement is not one which it wishes to retain. Moreover were it possible the Johannesburg bar council would support any application for his readmission to the roll of advocates. To this end it would welcome the introduction of legislation to restore posthumously the name of Braam Fisher and others in a similar position to the role of advocates.
I would want to stress finally in this regard that in taking this decision the Johannesburg bar council and the general council of the bar in including this material in it's submissions does not reflect upon the integrity of the particular bar council which took that decision in 1965 to seek the striking off of Braam Fisher on the grounds that he was not a fit and proper person to be an advocate. That council included as members some great South African lawyers noted also for their independence and character and their opposition to apartheid.
Fisher's letters suggest a grave moral dilemma for all concerned. What then Madame Chair are the lessons from history? It helps to look back only if we are to look forward. This is what we suggest to you in that regard. We understand the essence of the questions directed by the TRC at the institutions and bodies invited to make submissions regarding the legal system 1960 to 1964 to be this; how does South Africa endeavour to ensure that it's legal system will not in the future allow gross violations of human rights to occur?
We submit in our submissions about six or seven ways in which this can be done. I shall just refer to a few. In the first place we submit the requirement above all others is that a democratic order has to be sustained. This is a matter beyond laws and legal systems. "The only way that parliament can ever make legislation just is by making just legislation." so said the Natal supreme court in Dube's case in 1979.
While democratic values moreover are by general consensus best protected in a justiciable constitution such a constitution is not itself the primary requirement. As the eminent English constitutionalist, Walter Bagot puts it: "The light of a constitution is in the spirit and disposition of those who work it."
In the second place the supremacy of the law has to be maintained. It is best maintained in our society we suggested by a declaration of rights entrenched in the constitution.
In the third place an independent structure of courts is essential. The bar as it's been described as an early and committed protagonist of a separate and independent body presided over by the chief justice and charged with the task of appointing judges. It is essential that, that approach continues. And while concerns have been voiced in what we've said about the growth in size of the Judicial Services Commission under the 1996 Constitution and the striking imbalance of political appointees to it the JSC must expect to be under close scrutiny as it seeks to discharge in difficult circumstances the vital constitutional function vested in it.
In the fourth place we suggest particular care has to be taken to ensure the survival of key institutions of civil societies such as free media, vibrant universities and other educational bodies, active institutions such as churches, political associations and other non-governmental organisations and a strong legal profession.
It also exists in ensuring that the profession has the fullest control over it's own affairs and in particular in precluding governmental interference in professional affairs. The European court of human rights correctly, in our submission, noted that totalitarian regimes have resorted and resort to the compulsive regimentation of professions by means of closed and exclusive organisations taking the place of the professional associations and the traditional trade unions.
We recognise that the principle brings with it the concomitant duties and responsibilities of the legal profession and in particular the obligation set out in paragraph 14 of the resolution of the basic principles of the role of lawyers adopted by the 8th united congress on the prevention of crime and the treatment of offenders in Havanah in 1990. It reads:
"Lawyers in protecting the rights of their clients and in promoting the cause of justice shall seek to uphold human rights and fundamental freedoms recognised by national and international law. And shall at all times act freely and diligently in accordance with the law and recognised standards and ethics of the legal profession."
The sixth lesson in our view that the organised profession like the courts must be made more representative of the population they serve. This is not to say that the administration of justice would best be served by an application of quotas of crash preferment on grounds of race and gender alone, it is to say that strenuous endeavours must continue to be made to enhance the progress of more black and women lawyers. A challenge for the bar is to pursue both equity and excellence. The standards to which we should aspire are those expressed in the United Nations resolution number 44/121 adopted on the 14th of December 1990, a copy of which is attached to our submissions.
What finally is to be said of the role of the bar during the period 1960 to 1994? In these submissions we have endeavoured to present the facts which we have sifted from our records. Nearly all our leaders from the earliest days are now dead. As regards more recent times leaders who have survived have helped to clarify matters not always clear from the records. We have tried to present our history good and bad thus we expose for public record the racism which existed in certain bars. We've also recorded the endless protests, and objections and delegations to ministers seeking to combat yet further inroads in the administration of justice.
In the circumstances which prevailed there is an echo of what Alexis de Tockville wrote in Democracy in America. "No man can struggle with advantage against a spirit of his age and country and however powerful a man may be it is hard for him to make his contemporary shared feelings and ideas which run counter to the general rule of their hopes and desires."
Inevitably the record is imperfect. What, however, we would wish to do taking pride in some of the things which we have done in the ways and on the occasions described above in short we have challenged inroads upon the administration of justice but we must also acknowledge and regret that there were occasions on which yet more could have been done. At times so impregnable did the legislative and the executive fortress seem to be that bar leaders despaired.
Just ten years before a commitment to transition to democracy was announced Kentridge SC wrote in the University of Pennsylvania Law Review; quoting William the Silent, the following:
"Is there any hope of restoring what has been lost it would not be realistic to say so but realism, however sombre, is not to be confused with silence or acquiescence. It is not necessary to hope in order to work and it is not necessary to succeed in order to persevere."
The Johannesburg bar council has resolved not to retain the judgement striking Braam Fisher from the roll and to apologise to his family. The Pretoria bar council resolved in August this year to apologise to all victims of it's colour bar. On the 17th of October 1997 that bar went further it approved the following press statement at an extraordinary general meeting of the whole bar. And I read it in conclusion:
During the period which is covered by the submission of the general council of the bar to the Truth and Reconciliation Commission 1960 to 1990, the government of the day steadily eroded civil liberties, interfered with the rule of law and passed increasingly repressive legislation. While other constituent bars of the GCB voiced their concern the Pretoria bar failed to do so. And on more than one occasion refused to join it's fellow members in condemning executive excesses which brought the administration of justice into disrepute and prevented the courts from protecting civil liberties.
Although the vast majority of the Pretoria bar's present members do not share the sentiments of the majority during the period under discussion, it cannot be gainsaid that the Pretoria bar as an institution failed in it's duty to fulfil the legal profession's role of custodian of individual rights and the rule of law. It's refusal to join the other bars in protest also prevented the GCB from speaking on behalf of the entire profession with one voice.
We apologise to our colleagues, to the judiciary, the attorney's profession, the public at large and in particular the victims of unjust laws for these failures. As is the case with the apology which we tendered in regard to the racial discrimination which our bar practised until 1980 we should have offered out our expression of regret at a much earlier stage. We apologise for this remissness. We are grateful for the opportunity which our fellow bars and the Truth and Reconciliation Commission have given us to set the record straight in public.
Dated in Pretoria, the 17th day of October 1997, GL Grobler SC Chairperson Pretoria bar.
Madam Chair I hope I gave not taken up too much time. I think I probably have but all advocates whom the GCB and it's constituent bars represent would wish to rededicate themselves to promoting the administration of justice in the future. In the Malan Koenderers phrase:
"The struggle against the abuse of power is the struggle against memory, against forgetting."
We thank you Madame Chair most sincerely for this opportunity to have made this oral representation.
MS SOOKA: Thank you Mr Browde. I'm going to ask Mr Vally if he has any questions to ask the members of your panel. I have been told by your colleague that you have in fact to leave to attend a trial but before you go I think that I'd like to express on behalf of the Commission our thanks for the frank account of both the memorable moments and the ones that you regret that have taken place. But as we said in our leaflet to you it is not our duty to judge but rather to learn from the mistakes that have been made in the past to ensure that they don't actually happen in the future.
ADV BROWDE:: Thank you very much Madam Chair.
MR WALLACE: Madam Chair before Mr Vally asks his questions and I've been deputed on behalf of the GCB to answer the questions as best I can, there is one aspect which Mr Browde did not deal with which I would like to deal with and that relates to our submissions concerning the death penalty which I touched on last night as a member of the panel. But perhaps as the attendance is greater and attention is greater at this moment I would like to say this again.
In certain public statements and I understand again in public statements made yesterday by Mr Hernus Kriel, the premier of the Western Cape it was sought to invoke the submissions of the General Council of Bar to this Commission on the question of the death penalty in support of the reintroduction of the death penalty. I wish to make it clear as emphatically and unambiguously as I can that there is absolutely no basis for taking our submissions to this Commission as in any way constituting a call for the reintroduction of the death penalty in South Africa. That is a complete misreading of what we have said. We entirely support and accept the judgement of the Constitutional Court in the case of the State versus Makwenyane which held and declared that the death penalty in South Africa is unconstitutional. We have no doubt that that judgement is correct and we in no way seek by our submissions to bring about it's reversal through legislative process and the necessary amendment of the Constitution. Thank you Madam Chair.
MS SOOKA: Thank you Mr Wallace. Before we pass over I had in fact been remiss of the other, your other colleagues wanting to add anything to the submission?
ADV BROWDE:: No Madam Chairperson we've perhaps trespassed on everybody's patience sufficiently. But I am very grateful that we have had today present the support of my successor as the chairman, Peter Hodes SC from Cape Town, Mr Gilbert Marcus SC, who was one of those fundamentally involved in preparing our representations and George Bizos SC, a very senior and leading member of the bar.
CHAIRPERSON: Thank you. Hanif?
MR VALLY:: Thank you Madam Chair. Are you going to be fielding the questions on your own Mr Wallace?
MR WALLACE:: If I get desperate I'll shout for help.
MR VALLY:: Well let's start with the fact that you are representing by unanimous approval all the bar councils in South Africa and the GCB has been given that authority to do so. The first issue I want to raise is this, we know from your own submission that initially the Johannesburg bar council did not allow black membership and it was one of the first bar councils to allow black membership but, when it, at it's inception it did not. This is from your own submission, up to 1980 the Pretoria bar council did not allow black membership. We know even in submission from deputy president of the constitutional court, Pius Langa they had problems in the KwaZulu Natal council when he first joined the bar council. At that stage his predecessors had to look for chambers elsewhere other than the bar council itself. And by the time he arrived there was an annual permit which had to be obtained to allow him to practice from the chambers. Now I'm raising this issue because, and it's been quoted so often but let's repeat it, our present chief justice had to for 17 years, what's it 12 years operate from various places in chambers. He wasn't allowed to have an office in his chambers down the road here. And then for 17 years he wasn't allowed to use the common room at the bar council. Now this is the, the culture, this is the laws, these are the laws that the bar councils and the GCB operated under this is how you treated your own, sure the government was enforcing certain laws. More so in regard to the Jo'burg bar council and the Pretoria bar council which voted against admission of black people. Indeed a two-thirds majority up to 1980. These are the ranks from which our judges were chosen. Surely the culture which existed amongst the advocates at the time pervaded the culture which was adopted and reinforced by the judges of the supreme court?
MR WALLACE:: If you'll forgive me quoting Judge Cameron to Chief Justice Mohamed, you're perhaps even more of a master of the leading question Mr Vally unfortunately it's a leading question based on incorrect statements of fact and if I can clarify those statements of fact.
Firstly the only bars that we are aware of that ever enforced a colour bar as far as membership is concerned were the Pretoria bar, the Free State bar and the Johannesburg bar, at the time it was attached to Pretoria. By the time the General Council of the Bar was formed in 1946, no bar other than Pretoria and the Free State had a colour bar. No person was ever refused membership of any bars other than the cases of Pretoria which we have dealt with, the membership of any bar on the grounds of colour.
In regard to the occupation of chambers we have dealt in some considerable detail in our submissions with the position from 1956 onwards when the late Duma Nokwe became admitted as an advocate and a member of the Johannesburg bar and the endeavours which were made year-in, year-out by that bar, by the Natal bar and by the General Council of bars to secure a basis upon which they could occupy chambers together with their colleagues. The record is absolutely, unequivocal as far as that is concerned. The only legal way in which that could have been achieved at the time was by obtaining group areas permits. You are aware of that, the members of the commission are aware of that and I suspect every person present here today is aware of that. If you wish to condemn the bars because they sought to follow the only legal route open to them well then that is a prerogative of yours. I would suggest that that was the only thing that could be done and the record shows that it was done.
In regard to the culture of racism which you talk about I make no apology and I don't think the Johannesburg bar council makes any apology for it's exclusion of Justice Mohamed from it's membership, from membership of the common room. It did so unequivocally because of the provisions of the Group Areas Act. I think it would probably regard itself as ...(intervention)
CHAIRPERSON: Sorry could I have order please. I think that this is an opportunity to allow people to respond quite freely and I would ask that you respect the right of the people who are actually answering and making their submissions to do so, so if we could please allow the person to continue.
MR WALLACE:: Well it's always rather pleasant Madam Chair after all in 23 years of legal practice I don't often get the judges to laugh at me so it's nice to get an audience that can do that.
If I may continue? I don't believe that the Johannesburg bar is proud of in any way it's treatment of Justice Mohamed, it's exclusion of him from the common room, and as I recall that at the very dinner which was quoted by Jules Browde, a speech was delivered by Jules Browde on behalf of the bar council, in fact apologising for that to Judge Mohamed, and he has accepted that apology.
At other bars in the Cape where there was sought to be discrimination in the courts against the late Ben Kies, the bar boycotted the facilities of the court in protest against that enforced discrimination.
At my own bar in Natal Judge Mall was a member and was in fact a person who occupied chambers under a permit. He played a full life, a full role in the bar council's life. He was elected to the bar council in the late 50's, defeating I think Judge Shearer for election. He remained a full member of the bar council even though he was banned. Endeavours were made to ameliorate his banning order. At the time Judge Langa writes he does not in fact write, I'm afraid if you read his submission that he was in any way ill-treated by the Natal bar, in fact he commends it. He refers to the fact that two of his predecessors, Justice Shabalala and Mr Lewis Skweyiya, who became the first black person in South Africa to take silk, at a time when I was on the bar council in Natal were apparently not allowed to serve pupillage. I have not been able to clarify those circumstances from the record but it is there before you in Judge Langa's submissions.
The fact of the matter again is that pupillage was made compulsory in South Africa for all advocates with effect from the 1st February 1973. Prior to that it had been voluntary and there is, not only no record of anybody being refused pupillage, I can say unequivocally that nobody has been refused pupillage at any bar in South Africa since then.
In regard to these incidents where they took place they're unacceptable. No one adopts them now. I believe that if one looks at them against the overall picture what you're suggesting is unjustified. If you want to know whether white judges who went onto the bench had, across the spectrum, the range of view which white people in South Africa entertained, I wouldn't have thought it was necessary to ask me that question. The answer is rather too self-evident.
MR HODES: Madam Chair.
CHAIRPERSON: Thank you Mr ...
MR HODES: Because of the error of Mr Vally about the treatment by the Johannesburg bar of Mohamed C.J. as he now is I'd like to do the unusual thing, I have George Bizos here who lived through that entire period to tell you what the correct situation is.
CHAIRPERSON: Thank you Mr Hodes.
MR VALLY:: Madam Chair I think we can get that on record at some point I don't know if any purpose is served now. But if you, I don't mind you ruling. I don't accept that there was an error. 17 years he wasn't allowed into the common room. That is the fact he stated himself. But if Mr Bizos wants to ...(intervention)
CHAIRPERSON: Well Mr Vally I think that Mr Bizos is entitled to respond to the question.
MR BIZOS: Madam Chair thank you for the opportunity. The question of the common room in particular goes back to 1956 when Duma Nokwe became the first African member of the bar ever in South Africa. The, his exclusion from the common room was not as a result of a decision of the bar council and it was a bar council which consisted of Izzie Maisels, WG Trollip, Braam Fisher and others.
A very small minority had given notice when it lost the struggle for the admission of Nokwe as a member of the bar, that if he exercised his right to enter the common room they would file a complaint with the group areas board in order that he should not be allowed to share chambers with a member of the bar that he was sharing at the time. Unhappily the onus on that was put on Duma Nokwe himself who felt very hurt about it. He was a leading member of the African Nationalist Congress and came back and said that he had discussed it with the leadership and as unhappy as he was, he was forced to make a decision with the concurrence of his political colleagues that the compromise ought to be made because it was important to break the colour bar in relation to the admission of people at the Johannesburg bar, the factor even though the constitution provided for it a long time ago.
I am not trying to justify what happened to Duma Nokwe in relation to the common room, nor am I trying to justify what Ishmael Mohamed inherited when he came two years later which he had to unhappily follow. But I'm glad to have had an opportunity of placing that bit of information before you, because I have mentioned three or four names of the people on the bar council at the time and there were others that I could mention that would never have been a party of resolving to exclude anyone from any of the facilities that were available at the bar. Thank you Madam Chair.
CHAIRPERSON: Thank you Mr Bizos. Hanif before you go again Dumisa.
MR NTSEBEZA: Thank you Madam Chair. Mr Wallace mentioned the question of pupillage and it reminded me of yet another member of the Johannesburg bar about whom I would like to get some comments from you and I refer to Advocate Sobando Mlonzi, who as you know was admitted to the bar in the 1960's. He suffered all the ignominies and I think much worse than Mohamed did suffer. Because I remember in 1976 when he went into exile he was still having to do legal work from the library. He couldn't occupy chambers. But when he returned, and I'm just talking now about pupillage, when he returned having also written exams in Canada and Alberta and wherever and having been therefore in practice he was required to do pupillage and to write an examination. He had left before as an advocate, not having had to write an examination but when he returned he was required to write an examination. Can you explain how the rules work in that regard?
MR WALLACE:: Well I'm not a member of the Johannesburg bar. Mr Marcus is here and he says simply that's factually incorrect. And without having the opportunity to go away and check the record, and I'm very happy to do so and find out why if he was required to do so, that was the situation. But the position is that as a member of the Johannesburg bar in good-standing and he was in fact - only last night we were being told by Jules Browde of how he used Jules' chambers whilst he was a member of the Johannesburg bar, the position is that as a member of the Johannesburg bar he was not required to do pupillage. Pupillage was required only for people who joined the bar and he would not have been required to do the bar examination which was only introduced in 1980. And the suggestion that he was required to do pupillage I find quite extraordinary in the circumstances. I'm happy to go and investigate it. Mr Marcus seems to think your information is incorrect.
MR NTSEBEZA: It's very strange that the information the Truth Commission has today is very inaccurate, first it was Vally, now it is myself. Maybe Mr Marcus will place the matter on record. I know it because in the Black Lawyers Association we had to deal with it. Sobando Mlonzi was required to write an examination by the Johannesburg bar in spite of the fact that he had been an admitted advocate before he left the country and had been in practice throughout.
MR WALLACE:: Mr Ntsebeza would you mind giving me that date again?
MR NTSEBEZA:: What date?
MR WALLACE:: The date when you say this occurred.
MR NTSEBEZA:: I think it was in 1993.
MR WALLACE:: 1993?
MR NTSEBEZA:: Yes. When he returned from exile.
MR WALLACE:: Well we'll check it and we'll find out and we'll write a letter to the Commission giving you the information and if there needs to be an explanation we'll give you the explanation.
CHAIRPERSON: Ja I think that, that will probably be the best way of resolving that particular matter. Mr Vally?
MR VALLY:: Just to understand what you said was factually incorrect. I think your own submission says that initially when the Johannesburg bar council was formed the people of colour were not allowed to be members, but by the time the GCB was formed, the Johannesburg bar council did allow black membership.
However regarding the position in Natal. I want to quote to you what deputy president of the constitutional court, Pius Langa at page 7, I believe you have his submission, says:
"I was admitted as an advocate in 1977 and became only the fourth African practising at the Natal bar. None of my three predecessors were silks. My induction was relatively smooth. Unlike the reception which the first and second of my predecessors received on admission to the Natal bar. Both advocates Shabalala, now Justice Shabalala and Advocate Skweyiya, now senior counsel had not been allowed to serve pupillage. According to Justice Shabalala the reason given was that since he was a black person it would be embarrassing for his master's white clients to have him sit in during consultations in chambers. Both could not be allocated chambers with other advocates at Fenton House because of the Group Areas Act. Both therefore sought and operated for some years form chambers elsewhere in Durban in an Indian area. It is only some years later that the society had second thoughts and decided to apply to the authorities for an exemption to the stringent Group Areas regulations.
The representations by the society succeeded to the extent that African advocates were granted permits, renewable yearly to practise from chambers at Fenton House. This opened the way for other Africans to obtain chambers at Fenton House. There are other cases which are well documented of black advocates being treated in a disgraceful manner at bars elsewhere in the country where they sought to acquire chambers; to use robing rooms and even to get accommodation for the night.
I, on the other hand, served my pupillage in the normal way benefiting immensely from the mentoring I received from my three masters who in addition treated me with the utmost courtesy and respect."
So clearly the fact, the statement that no black counsel in this country was refused pupillage flies in the face of Advocate Langa's statement.
MR WALLACE: You know really Mr Vally with all due respect if you would listen to my answer in the context of what Justice Langa said, I did not say to you that Mr Shabalala and Mr Skweyiya were not refused pupillage, I said I had been unable in the records to ascertain the circumstances. This came to me far too late. The position is that since pupillage became compulsory, and can I stress that, since pupillage became compulsory, which was the 1st February 1973, and I know the date because I was the last voluntary pupil to serve pupillage in South Africa, it was introduced on the 1st of February 1973, no person has been refused pupillage in South Africa. That is what I said a moment ago. I haven't changed it. It is not in any way incorrect.
CHAIRPERSON: Mr Vally?
MR VALLY:: Clearly the legal profession, the white legal profession which was largely what the legal profession consisted of for a very long time in this country only white people reflected the prejudices of the society they came from, and you made a statement a short while ago - I wanted to get clarity on that in case you accuse me of misquoting you. Is that correct?
MR WALLACE:: What I said to you, it is clear that there were no large numbers of people of colour who became members of the bar until the 70's. And I think we've probably mentioned everybody who did join the bar before that. The majority of the members of the bar were white and male, we've said that in our submissions. Their political views ranged from the extreme left to the extreme right, however you want to characterise that and I don't want to name names, and all stages in-between. What I said to you and I say it again is they reflected that range of views across the board. And they would have gone onto the bench, as everybody goes onto the bench, with whatever personal predilections and approaches they might have had.
MR VALLY:: I want to quote you a statement made by Prof GAG Griffiths in his book, Politics and the Judiciary
"As an inevitable consequence of the dominant, illiberal societal ideology judicial ideology will in the end follow suit."
How would you react to that statement? Would you agree with it?
MR WALLACE:: One could and it might be facile simply to say that Professor Lee's response to Professor Griffiths' book is to say that if any one of Professor Griffiths' books, any one of Professor Griffiths' students had written an exam paper on the basis of simply applying the theories in Professor Griffiths' book, Professor Griffiths would undoubtedly have failed him because of his ignorance of the law. Those views are controversial. There is a school of jurisprudence known as American realism which draws it's views from Justice Oliver Wendell-Holmes and Justice Jerome Frank which says that law is what the judges say it is and therefore you must look at the judges personal predilections. It is a highly debatable school of jurisprudence.
No one suggests that advocates or judges or any other human being in society is unaffected in the way they take decisions and in what they do and say by their background and preconceptions. The true debate is the extent to which that is true in the professional context. In the professional context I don't believe it's entirely true. There are obviously elements of truth to it and there are obviously elements of error to it.
MR VALLY:: We've had some submissions by judges, including Judge President Friedman who've criticised the way the judiciary performed during the apartheid era, especially as regards the issue of security legislation. In your own submissions you say so. You also say on page 37
"We do not subscribe to the view that judges were powerless in the face of the doctrine of parliamentary sovereignty. Judges do more than merely declare law. Judges can also play an important role in mitigating the harshness of repressive statutes and in advancing civil liberties."
Now on the one hand if you criticise the role that judges play, and you've mentioned that there was a minority which played a noble role, but majority of them did not, they came from your nursery school, which was the bar council. I'm trying to get clarity on when you criticise people when they are elevated to the bench or retire to the bench or whatever you want to call it and they come from the bar councils this is where they were nurtured and weaned. Why is it so difficult Mr Wallace to say that there were deficiencies in the bar council system which resulted in deficiencies on the bench?
MR WALLACE:: I don't think I am having any difficulty with that Mr Vally. I'm having some difficulty in knowing what the question is. I've said repeatedly and we've said in our submissions the background of the people who became judges is that background. We've tried to highlight the shortcomings of the bars and so on. I can't take that any further. That is where the majority of judges had their professional training as members of bars. Yes, that's entirely true. Other than the random government employees from the civil service, the attorney general, the diplomatic envoy who was brought back to go on the bench and those sort of things, yes that's true. I'm not quite sure what the question is.
MR VALLY:: Well it's the first time you've made that concession.
MR WALLACE:: It simply isn't Mr Vally.
MR VALLY: Well let me not argue. Let me just go on.
CHAIRPERSON: Mr Vally it is actually in the bar council's submission. Perhaps we should move on from that.
MR VALLY:: I will move on. It is in the submission but when you summarise the submission certain things could be left out and I think it's important to raise them in the public arena Madam Chair.
The international community was quite critical of the role of South African judges. I refer to the paper delivered by Judge Hinds, I'm sorry Professor Hinds where he went so far as to say theoretically they could have been charged as were the judges after Nuremberg. I refer to the paper delivered by Professor Dyzenhaus where he talked about dereliction of duty on the part of judges. I'd like to know because we often are quoted two statements. A number of judges have quoted two statements to us, the one by Mr Kentridge, who talks about:
"It had undoubted and serious effect on the standard."
Sorry;
"Nonetheless throughout the period the South African supreme court as a whole remained an independent court which it in appreciable number of cases provided some protection against the excesses of the executive."
And then this other famous quote which you quoted from Mr Arthur Chaskalson, both of whom were members of the bar council at some stage. In contrast to that you have what's quoted in your submission on page 39 by the international commission of jurists:
"Many South African judges are open to criticism, not only on the account of their participation in the legal system which denies basic rights of personal liberty but also on the grounds that in administering the ordinary laws they have made decisions which seem inhuman and have imposed excessively harsh sentences especially in relation to children who are charged with public violence. We are not impressed by the argument that the judges are powerless in the face of government restrictions in the security area. We recognise the judiciary operate in the climate of severe government restrictions but we believe that judges can choose to make an impact. If a judge remains on the bench in such a repressive regime there can be no excuse for failing to exercise his choice in favour of individual liberty and whereas some judges have done justice in some cases in recent times, the majority of the South African bench have failed to do so. We feel that it is as a result of this failure that the South African judiciary is open to criticism of their fellow jurists in other countries."
The issue here is this, do you not believe that if the judiciary is open to this kind of international criticism, that because judges come from the ranks of bar councils, that this kind of criticism is also valid as regards the way bar councils operated and are operating?
MR WALLACE:: I feel some difficulty with the connection. Can I make a couple of points in response to that. Firstly I think that the considered views of lawyers as eminent as Sydney Kentridge and Arthur Chaskalson who actually were members of the bar; who were practising; who defended at the treason trial; who defended at many political cases who represented the family in the case of Sydney Kentridge in the Biko inquest and whose record in the field of civil liberties and human rights is unchallenged and who were members of the bar, and Arthur Chaskalson was vice president of the general council of the bar for several years, they were both leaders of the Johannesburg bar, I am inclined to think that views of those whose day-to-day life was an encounter with the system and in resistance to it may possibly be a more accurate consideration of the matter than the views of those who sit outside the system. Without in any way denigrating the benefit perhaps of the bird's eye-view which the person whose not involved in the heat and dust of conflict.
In regard to the international commission of jurists they don't, the statement we have quoted and perhaps we've done it because we wanted to give a balanced view, and to say these are views that are there. It's quite interesting of course that they seem to confuse the magistrates and supreme court because of course the sentences in relation to children were overwhelming in magistrates court matters not in the supreme court. They also ignore the compulsory sentences which statutes had enforced.
It's a criticism. How you want to take the criticism, how far you want to take it is not for me to say. It's for the Commission to judge. Whether Professor Dyzenhaus' categorisation and (...indistinct) I think I referred to it as the rhetoric which academe perhaps permits you yesterday afternoon is taken to be a correct description or not is for the Commission to decide. It's not for us to decide. But we would simply suggest that those who actually were involved, who were doing the job may have had some understanding of what they were doing. And we would suggest also that a system of the bars and the ethos of the bars and the professional rules at the bars which enabled those individuals and many others to do what they did do cannot be suffering from quite the deficiencies rather unstated which your questions postulate.
CHAIRPERSON: Thank you Mr Wallace. We're running under some time constraints. So I'm going to allow the commissioners to just ask some of the questions which they would like to ask. Mr Vally I'm going to cut you off there. You can address them in writing to the bar council and get their comment on it.
MR POTGIETER: Thank you Chair. Perhaps if you can allow me just a brief general observation before I actually raise the issue that I would like to raise, and that is that it is and it's probably self-evident that one of the consequences of apartheid has been an alienation between those black practitioners who saw themselves as actively involved in opposing apartheid and the establishment bodies like the GCB, etc. In fact it is as a direct result of the disillusionment with this situation the black lawyers formed bodies like NADEL and BLA. In fact I wouldn't call it an adversarial relationship between the establishment bodies and NADEL and BLA but it was certainly not a comfortable one. But we don't want to dwell on the past. In fact we are more interested in how we can work towards the best interest of the administration of justice, and it's in this regard that I would like to hear what the views are of the GCB on the question of the transformation of the judiciary.
Does the GCB still subscribe to the situation that pertained previously that it's only senior counsel that are eligible for appointment to the bench?
What is the view of the GCB on the appointment of attorneys? On the appointment of academics to the bench?
And more specifically, what does the GCB intend to convey to the Commission on page 208, paragraph 136 which deals with the representivity question where it says that: "The GCB does not necessarily subscribe to the application of a quota system..."
etc as it's set out there. And specifically where it raises the point that;
"...strenuous endeavours must continue to be made to enhance the progress for more black and women lawyers."
What specifically is meant by that?
MR WALLACE:: I think there are three points you've raised. Let me deal with them very quickly. It is a sad thing that the position in the profession was such that people felt it necessary to go off and form separate bodies. It's an even sadder thing to read the minutes of the individual societies in the general council of the bar and to see that they did so without in fact coming to the professional bodies of which they all were and are and remain members to raise those concerns and ask that they be addressed. That is factually the position.
The second thing in regard to judicial appointments. You may not be aware of the fact that we wrote to the Judicial Service Commission when it was first established under the chairmanship of my predecessor, Wim Trengove who serves on the Judicial Service Commission and we made the point that we do not say that the bench should be the exclusive preserve of the senior bar. We entirely accept that there are people outside the ranks of the senior bar who may be well suited for appointment to the bench. In the case of all concerned we believe that they should have demonstrated their suitability by way of having undertaken an acting appointment on the bench and shown publicly that they can do the job. We remain of the view however that in a court system, such as South Africa's, practice at the bar on a daily basis in the courts, appearing there in matters across the board for clients on both sides of the spectrum; for the state, against the state; for the trade union, for management, as the case may be, actually, peculiarly does nurture the qualities of independence of mind, of professional expertise, of legal skill, of judgement, of the ability to deal with a court case in court and so we believe that the bar will continue to be, as indeed the evidence shows it has been, the first port of call as it were in seeking suitable bench appointments.
In regard to the third matter. There are a number of difficulties, not least of which is in attracting people to come to a profession and knock around the magistrates court when very substantial packages and so on are on offer to them in the commercial world and in the field of government. The one thing we have done in the past couple of years with the support and funding of the overseas development agency of the British government a project backed by and given the blessing of the Minister of Justice, we established with our colleagues of the English bar an advocacy training programme which operates and which in fact is compulsory for every person who goes through pupillage to try and assist particularly in raising the level of skills of those who come from an educationally disadvantaged background. That is up and running. It applies at every single bar in South Africa and it is a programme that is in a constant process of being extended and developed. That's simply one example of one of the endeavours which is being made in that regard.
CHAIRPERSON: Mr Wallace I wonder if I might follow up that question. You see at paragraph 136 on page 208 of your submission you say
"The sixth lesson is in our view that the organised profession like the courts must be made more representative of the population they serve. This is not to say that the administration of justice would best be served by an application of quotas or crass preferment on grounds of race and gender alone."
And of course you go on to say that strenuous endeavours must continue to be made to enhance the progress of more black and women lawyers.
I think the difficulty though is that if we talk about more representative then you're talking of a lot more people, a lot more black people who need to be placed at the judiciary and of course at the magistracy and other levels where justice is administered. And the difficulty is that people will not perhaps be so well-qualified or so well-trained as you say because they haven't had that opportunity.
Now how does one address that kind of issue whereby necessity to get that kind of reflection, that experience of the black majority you would need to put in people who would not have had the same opportunities as perhaps white practitioners, how do you overcome that contradiction?
MR WALLACE:: I think we're in very much the position which the Minister of Justice spoke of yesterday afternoon and in fact I don't think anything we say here is any different from what the Minister of Justice said to you yesterday afternoon where he himself rejected the application of quotas you will recall, and also said that it was painfully difficult to achieve that situation in South Africa. It is going to be a difficult and if we are honest with ourselves, never as quick a process as we would like to achieve the balance we seek.
The bar is at present particularly hard hit in that the people we are trying to encourage to come to the bar are the very people who are, I'm not sure whether it's in danger for their talents but, more in demand for their talents, that those who do have skills have so many offers available to them, very often at handsome remuneration and on very desirable financial terms which frankly the bar is not in a position to offer. Because as you know we practice everybody on their own. We have no partnerships, we have no sponsorship and so on. So we're looking at a scheme. We have already instituted and have for some years a bursary scheme funded by the bar. We're looking at ways of expanding that. It's going to be a very long, hard road to overcome the problems and for me to suggest that I've got an overnight solution that could solve the problem in the next six months, the answer is simply no.
Quite frankly if you took every single person of colour and every single woman with a legal qualification in South Africa and you put them on the bench and in the magistracy and in the department of justice you still wouldn't be anywhere near solving the problem. It's a huge problem and it's, I don't have a simple solution. We're trying to do what we can. We're in discussion with others as to how we can improve that.
If anybody has suggestions I'd be delighted to receive them. Before the last annual general meeting of the general council of the bar. I actually wrote to particular people asking for those suggestions and regrettably again the rhetoric of transformation was present but the practical suggestions were completely absent. If people have them our telephones are there. Our E-mail is there. You can post us a letter or send us a fax. We will welcome any suggestions that could help address the problem.
CHAIRPERSON: Thank you Mr Wallace. Thank you very much to you and your team. I think the Commission appreciates the frankness and the openness with which you addressed your submission. Of course it's not the end of the road for us because you've raised a number of issues in a very detailed and lengthy submission and the Commission will be addressing you on issues that it would need clarification on, as well as the questions that will be raised obviously by other sectors of the profession in regard to your submission.
But we would like to thank you for coming here today and for taking responsibility for what did happen in the past. We're very grateful for the closure and of course the suggestions you make about what should happen in the future. We do have the family of Mr Braam Fisher present here and I think it was important for them to hear the explanation for why Braam Fisher was treated in the way that he was, and we're going to ask them as well to just talk a little bit about their own experiences of what did happen. Thank you very much for coming.
CHAIRPERSON: ... to welcome you and I'm sorry we've placed you in a little bit of an invidious position by asking you to make a formal submission, but we understand that you haven't been formally apprised of the situation so please just feel free to express yourself. Before you do I'm going to ask Mr Richard Lyster to simply ask you to take the oath please.
MR LYSTER:: Thank you. Could you please both give your full names and then, perhaps you should rise and just give us your full names. Just press the red buttons before you do.
MS RICE: I'm Ruth Amelia Rice(?)
MS WILSON: I'm Ilsa Wilson(?)
RUTH AMELIA RAS: (sworn states)
ILSA FISCHER: (sworn states)
CHAIRPERSON: Thank you. You may proceed.
MS RAS: Well first of all we'd just like to say as has been said we are in a rather awkward position because we weren't expecting to give this submission. And secondly of course Jules Browde has said a lot of the stuff that we might have said ourselves. But I think that what I'd like to emphasise is that the fact that Braam being struck off the roll and the fact that it was done with what felt like indecent haste at the time, I think was one of the most traumatic experiences for Braam. That he felt that was one of the worst professional and personal betrayals that he had experienced. That it felt as if the bar council didn't wait until pressure was put on them. That they jumped in straight away to apply for his being struck off. And I suppose in a funny way, as a consequently of President Mandela actually three years ago in a speech he made called for Braam to be readmitted onto the roll and that has taken rather a longer time than the speed with which he was taken off the roll.
MS FISCHER: I think I just want to add a few other things about what it was like at the time. I, when Braam was on trial I wanted to study law myself and before he'd gone, estreated bail I went with him to just about every attorney in Johannesburg to apply for articles. Not one of them would employ me. Eventually to their credit Werksmans some six months later did give me a job and particularly Mr Werksman himself and Mr Hyman was very good to me. But I was later listed under the Suppression of Communism Act and therefore couldn't practise. And there was never any outcry about people like that, about the (...indistinct) who were not allowed to practise because their names were put on the list.
And if we go back to Rivonia where Braam was the leading counsel and I'm sure these that are still here will bear me out, they couldn't find an attorney to do that trial. Gill Joffe had to be - was about to go, to leave the country, to emigrate and was called back because there were not attorneys who were prepared to take cases like that. And then when Ruth Hayman and Gill Joffe himself later were banned and not able to practise I don't remember an outcry at all about why they were not allowed to practise. We heard earlier about people being reinstated after they were found guilty of offences. Louis Baker and Rolly Arenstein were both found guilty of political offences. I don't know if they were ever allowed to practise again. But I also didn't hear an outcry or any comment from the legal profession at the time about what should happen there.
I mean we even in 1964 had the daughter of a school friend of my mother's so it was completely apolitical friendship, the daughter was staying with us in the house and she was a lawyer and she was practising as a prosecutor.
...(tape ends) But I think that those things should be recorded as well.
CHAIRPERSON: Thank you. Is there anything that you would like to add?
RUTH: No nothing further.
CHAIRPERSON: Thank you very much for coming. I think for many of us young lawyers who for, where people like Braam and Rolly Arenstein were the sort of role models I think it's important that today the record is set straight about them, and that we are quite honest about the way in which we deal with those accounts. It was important to hear you and important to hear more particularly that from the organised profession there was no protest or no outcry. Not one loud enough certainly to be heard. Thank you for sharing that with us.
Mr Lax in fact wants to just place on record that Rolly Arenstein was in fact enrolled before he actually died.
MS FISCHER: But many years after he came out of prison.
CHAIRPERSON: Absolutely. Thank you very much. We are now going to break for tea.
HEARING ADJOURNS
ON RESUMPTION
MS JANA: ... regret that I have not had sufficient time to prepare a substantive and comprehensive submission to this Commission. I was actually requested to do so only a few days ago, although I do believe that I have a wealth of information which I think would have been very useful to this Commission. Unfortunately therefore this Commission is rather limited but and of course many of, much of what I'm going to say will, cannot be substantiated with detailed references but upon request I will endeavour to furnish such details as required. I still have some of the records although many of my files have been damaged due to unforeseen circumstances.
Let me begin with the majority of lawyers in this country in apartheid era who justified that their profession on a legal fallacy, that the legal system functions as a mechanism independent of the society around it. And that the law is a neutral and impartial structure available to all groups in society. Although it may regrettably on occasions be used to enforce unfortunate social practises to those lawyers the courts were impartial arbiters of right and wrong. To them the courts and those who staffed them, both judicial officers and practitioners, were untainted by the stench of racism and exploitation which informs the rest of our society. To those lawyers the accumulation of great wealth through the practise of law was morally blameless because lawyers in South Africa and the law itself constituted an independent enterprise apart from the grim milieu in which their activities were set. Let it be said that very few South African lawyers did not hold these views but saw that the law and the legal system could never be separated from the society of which they are a part. And that the law was the most important mechanism in our society through which oppression and exploitation which constituted apartheid was made possible.
It was the legal system of our country which enforced and reinforced the social structures imposed in the interest of a small section of our society. I am now a member of the national assembly. I was an attorney for 19 years from 1975 to 1994 primarily in the field of civil liberties and human rights. I have been involved as a human rights lawyer in most of the celebrated political cases throughout South Africa. I have represented most of the youth, juveniles, students, activists and leaders from a wide spectrum of political organisations and labour organisations throughout South Africa and even in Namibia in all kinds of matters arising from and pertaining to political views activism and victimisation under apartheid.
Among the organisations I represented were the African National Congress, the PAC, the South African Youth Revolutionary Council, AZAPO, SASO, BPC, COSAS, UDF, SWAPO, MDM and many others.
I have been intensely also involved in representing the children and youth of our country and it is in this area that I would like to specially direct and devote this submission.
Since 1976 there has been a systemic and systematic violations of human rights perpetrated by the state against the children and youth of our country who in any way participated in opposing the apartheid system. There is a wealth of evidence in this respect and I think that this Commission needs to tap this evidence as it is necessary to record this for the purpose of history.
There was something that was both quantitatively and qualitatively peculiar about the scale of police abuse and attitudes of judicial officers in respect of children. Abuse of police power has been a recurrent theme of the indictment against apartheid society and it was a clearly identifiable area of deviant behaviour. What was frightening and horrific in respect of such behaviour against children was the scale of this abuse and it's transportation into the judicial system. This lead to the concomitant contempt for the processes and purposes of the law and law became increasingly identified as an instrument of white power.
I had participated in a film produced by Nicholas Claxton called "Suffer the children" which was screened on channel 4 BBC in London. In this film I narrated a host of gross violations against children. After the screening the then Minister of Law and Order (...indistinct) is as a lot of lies. I was summoned to John Vorster Square and threatened with prosecution. I then submitted an affidavit of about fifty pages substantiating in detail every allegation that I had made in that film. I heard nothing about my prosecution thereafter.
Let me now delve briefly about my own experience as a legal practitioner. After serving my articles I then opened my own practice. Barely a few days later I was served with a five year banning order. Needless to say this placed tremendous handicap to my practice and my profession as an attorney. I was restricted to the magisterial district of Johannesburg amongst other restrictions and therefore could not be present in many trials that I was instructing attorney. And it is commonly known that it was a practice those days to hold political trials away from city centres. And we know the reason why of course this would unduly prejudice clients and the defence team.
In this respect I would like to give you an example. The matter of the State v Ebrahim was set down in Piet Retief. We, the counsel in this team and myself made representation to the judge president then to move this trial to a venue that would be closer and more convenient for client and for the defence, but he refused to do so. I may just interject here and say that detainees also were held in remote parts of the country. I know Jomo Kasle for example was held in a place that I think was called Boskop or something like that, at the border of Botswana. Access to this area was virtually impossible. One had to drive there in a four-wheel drive and had to be escorted by police because this area was an operational area near the border of Botswana.
On numerous occasions I had applied for permission to the chief magistrate as was required in terms of my banning order for permission to attend these trials and on every occasion my application was refused. Except on one occasion in the State v Malwane in the appeal before 11 judges in the appellate division when permission was granted to me to attend that appeal.
On one occasion I remember in the trial of the State v Lebisi and others Advocate Jules Browde supported my application with a personal undertaking that he would personally take me to the trial and bring me back. The chief magistrate refused the application with no reason.
My office was subjected to periodical raids. My staff members were taken for interrogation. On one occasion we were consulting with a client over 20 policemen rushed into my office looking for this particular client. His name was Imbali Seheri. Fortunately for him one of my typists, Nana Williams hid him under her skirt and he escaped arrest.
On another occasion Penwell Maduna, who is now the Minister of Mineral Affairs who was articled to me then, had to step out of a window and hang onto the ledge whilst police was raiding my office. My home too was subjected to frequent raids. On one occasion my home was raided on three occasions my ailing mother was visiting me from Durban. She had suffered from shock and had to be treated for shock on that occasion.
I myself was arrested on many occasions and taken to John Vorster Square and Protea police station and interrogated about my activities. On many occasions I was threatened but I was never assaulted. Amongst my interrogators were Colonel Heysteck, one Dietleefs, Captain Sonn and many others. In 1985 I was arrested and detained under the state of emergency at the Protea cells and was later released after several hours. My home in Lenasia was petrol-bombed on three occasions. The first attempt was made just before the execution of Solomon Mahlangu, the bomb fortunately did not explode.
The second occasion was in about 1979 when my house was petrol-bombed a day before Mr Melade Arnold, I think he is with us today came to my house for dinner. It would appear that the bomb was targeted for my bedroom. It missed and it hit the helpers quarters next to my bedroom. Fortunately she was not in because her quarters was extensively damaged.
On the third occasion in 1995 a petrol-bomb again was thrown into the lounge of my house through a glass door. Fortunately my daughter, Tina was a little baby and she had awakened us and we were not asleep because I think we would not have been able to escape because the bomb had landed blocking both the entrances of my residence.
There were many such occasions. A brick in 1984, a brick was hurled into my lounge while I was sitting and watching television but fortunately it did not hit us. My friends and family members who associated with me were often intimidated in various ways. I remember a close friend, Amina Moosajee who was totally uninvolved in politics in any way was asked to report at John Vorster Square and was interrogated on my activities. For that matter I may also mention here that Advocate Tomkin of the Johannesburg bar was questioned by security police when he was involved in a trial briefed by my office. Mr Ken Padiyachee, a close friend was approached by colonel Heysteck to inform on me.
During 1985 in the matter of the State versus Colin Subane I had travelled a long distance to consult with him in a prison in Haenertsburg, in Magoebaskloof in the Northern Transvaal. When I left the consulting room, when I left the prison I was consulting in the prison, I found that all tyres of my car were slashed.
In 1978 I had gone to consult with my client, Mosibodi Mangena who was released from prison after serving five years on Robben Island and was banished to a village outside Pietersburg. As I entered the location it appeared that the police were waiting for me. They escorted me to the police station and locked me up in a cell whilst my mother who had accompanied me was sitting in a car. When I protested that it was too hot they brought her in. I spent the whole day in the cell and left without seeing my client.
The question here arises what did the law society do for me and other attorneys in my position? I would like to boldly state - absolutely nothing. I felt, on the contrary, persecuted by the society because complaints of frivolous nature were often persecuted vigorously against me. And in many times the source of the complaints were not even disclosed to me. For instance when I represented Solomon Mahlangu in court his friends and family were not allowed to come in with the exception of his mother, his brother and his sister. As he was sentenced the atmosphere in court was one of, as he was sentenced to death by the way, the atmosphere in court was one of great jubilation from court officials, police and the staff. Members of his family were not even allowed to greet him. Immediately after being sentenced to death he raised his hands, his fists and shouted "Amandla" and I responded "Awetu". I was then asked to give full explanations of my behaviour by the law society.
The fact that in that court at the same time the judge's daughter, who was his registrar called me a bitch after my response and I made a complaint to that effect to the Department of Justice there was nothing that was done about it.
On another occasion when my clients in a UDF trial were incarcerated at John Vorster Square the police, no sorry I don't know where they were incarcerated, but the police had called me to tell me that they would be appearing the next day in court and they had instructed him to instruct me to represent them. The law society thereafter wrote to me asking me to furnish full proof of my mandate. The source of the complaint against me was not disclosed. Although I must say that when we had instructions from detainees we had submitted written instructions to the police as were required by them before they even communicated with us. That was the practice in those days.
Let me now begin with a great myth of fair trials. And I think the area that I would like to touch on was access to clients and this is of the limited rights that we did have. We had the right to consult with clients but from my experience I would like to just quickly set out a few occasions.
When Aubrey Makoena was detained under section 28 of the Internal Security Act I tried to consult with him for a court application in prison. The prison officials denied me a consultation which was privileged and insisted that it should be within sight and hearing. Of course thereafter I left and went straight to the supreme court with counsel and brought an urgent application and succeeded.
When we consulted with president Mandela on Robben Island in an application for his daughter Zinzi Mandela, who was really being really harshly subjected to police harassment in Brandfort that consultation took place within sight and hearing.
On another occasion when my clients were incarcerated in John Vorster Square I was informed that they were charged and were awaiting trial my then clerk Caroline (...indistinct) Nichols and I rushed down to John Vorster Square to consult with them. I was denied access to them. After protesting for a while the officer there locked both of us in a cell for a few hours. We brought about an action against the police and the prison department and the matter was settled out of court. And I was represented by attorneys Cheadle, Thompson and Haysom.
I must also state here that it was very difficult in those days to prepare properly in political matters. There were no facilities in court. There were no consulting rooms and much of our consultation had to be done outside or in corridors of courts. On the one occasion in the State v Ngwenya when I attempted to consult with my client's father I had to do so in the back of the court room. The police, security police kept on following us and tried to listen in to the conversation. He was also eating a pear at the time and he was spitting. I called him a pig and I know that many of you would know I was charged and convicted of crimen injuria and fined. Of course my appeal was upheld thereafter.
I would like to now quote a few of the cases that I've acted in because I think that it's necessary to set out the pattern that prevailed in those days to dismiss the myth of the fair trial. And I can say here that much of the outcome of our matters in court depended on who the presiding officer was. For example I can give you comparisons. In the UDF trial in Pietermaritzburg and the Delmas trial had two different outcomes. The UDF trial our clients were out on bail, in the Delmas trials clients were refused bail. And the outcomes were very, very different.
In another matter in the supreme court similar matters were heard in two courts. The one was the State v Kekane and the other was the State v Lepili. In the State v Kekane both of them were arrested and detained for about the same time and for the same activities, but the trials were split. The confession made was admitted and it was the only evidence against our client. And he was convicted and sentenced. In the State vs Lepili the confession was not admitted. It is a reported case.
There are many comparisons. There's another matter, the Vaal Triangle matters, there were two matters and each matter had nine clients. My matter was the matter of the State vs Mashili and the other matter I can't remember the names. In my matter all nine accused were acquitted and in the other matter, a similar matter with the same circumstances and the same events they were all convicted. This is the famous matter of the Vaal Triangle.
Let us now go on to some of the other matters that I think need mentioning here. Unfortunately I will not be able to separate them from the supreme court matters and magistrate court matters and I will just relate them. I don't know how I'm doing for time though Madam Chair. Can I carry on for a little while?
CHAIRPERSON: Another 10 minutes.
MS JANA: Ten minutes. Okay. I remember a matter in Ga-Rankua where 18 children under 15 were detained and severely assaulted. I think one of the accused names was Daki Mutle. When he appeared in court before the magistrate one child was so severely beaten his shirt was covered in blood he could not stand in court. He had to lie down. We applied for bail. Bail was refused. The magistrate just simply postponed the matter.
In another matter where children from Leandra were really being assaulted and detained and harassed by the police we sought the assistance of the South African Council of Churches and removed the children to a church in Wilgerspruit, the police then swooped upon them in helicopters and arrested them. They were then detained, put in a cell and sjamboked, young girls and boys even of pre-puberty age.
Of course the Cosas case where children were booby-trapped and blown up, I think that is a well-known case, so I'll go on. I'm not going to go into the details of that. But I may just add here that it was always a pattern, a tendency, particularly in the magistrate court, to believe policemen no matter how poor the evidence was and reject the evidence of accused persons.
In the matter of Dubasi, the State v Dubasi and others I was telephoned by the police and asked, and told that my clients were appearing in the magistrates court. I rushed down there and the prosecutor wanted my clients to plead on the first occasion. I had advised my client not to do so because we had not had the benefit of a full consultation. The magistrate then had postponed the matter for a few minutes. I walked pat the corridor and saw the magistrate speaking to the policeman. I came back and recorded that when I appeared for client. The magistrate was so angry with me when I asked for a postponement, he refused. I then withdrew as attorney on record and left. My client of course then did not plead and was taken away.
In the matter of the State v Monty Mzinyati my client was arrested and detained for a long period and then charged for undergoing training in Russia. We had, his alibi was that he was in Lesotho at the time and he was involved in a collision and was hospitalised at the time that the indictment alleged that he was undergoing training in Russia. We took affidavits from various people, from the hospital superintendent, from the police superintendent and many people in Lesotho. We applied to lead evidence on commission. That application was refused. But we finally, and he was convicted and sentenced. On appeal he was acquitted.
Not all magistrates were bad I must say. We had some cases that were quite surprising. And I think I want to mention here in the case of the State v Thandi Modise. The magistrate was so appalled with a major's evidence that he referred his evidence to ...(intervention)
CHAIRPERSON: Sorry, Mrs Jana could I just ask you just for the sake of the cameraman just to put your page down please.
MS JANA:: Yes in this case the magistrate, I think his name was O'Cam, I'm not absolutely sure, referred the major to the attorney general for a charge of perjury. This matter also featured in the editorial of the Star newspaper but I do not know what was the outcome of it, whether he was actually prosecuted or not and I think probably not.
I want to mention here that the case of Hashe, Galela and Godolozi in the application for habeas corpus in Port Elizabeth. We had eyewitness evidence that our clients were arrested by the South African police. Their evidence was disbelieved. The Minister of Law and Order, then Mr Vlok made an affidavit stating that the police had not arrested my clients. It now transpires from Mamasela that the police had in fact arrested our clients and we know what the outcome of those arrests were.
I'm not going to delve into the sentencing pattern because I think other people have already delved and I'm sure others giving evidence after me will touch on that. But I think everybody knows about the famous Mug case where our client had merely inscribed the words "Viva Mandela" on his coffee mug. He was sentenced to four years imprisonment. In this matter I must also say that the prosecutor had asked for bail - when we had made an application for bail, had asked for bail to be set in an amount of R2000. We argued that we could only afford R1000. The magistrate set it for R3000.
I would also like to mention the case long before the CCB and the third force operations became public. I represented Ben Kreling and a van de Vel, whose first name I cannot remember, who was a corporal in the defence force who had stolen a blueprint on the special force activities which included assassinations of political activists and cross-border raids. I had sent this to Lusaka via courier and somehow I was told later that it got mislaid. Our client van de Vel in fact got convicted and sentenced under the Defence Act, the contents was not revealed as the court was held in camera.
On another occasion in a magistrate's court we had a witness, a state witness who when giving evidence in-chief said that he was assaulted severely when he had made his statement to the police, to a prosecutor and that it was not true. The magistrate got so furious and discredited him and said something to the effect: "Vat hom weg." When we asked to cross-examine him he refused. My client was convicted and sentenced. But we won the matter on appeal, eventually.
In another matter which I remember now I represented three persons in a magistrate's court and they also alleged that they were very severely beaten at John Vorster Square when they were held in a cell and they were given electric shocks and that there were plugs and sockets in the wall. We asked for an inspection in loco. The magistrate had refused and eventually, it was on a Thursday I think, and the magistrate then agreed that we could go on inspection in loco on a Monday. We wanted an immediate inspection in loco but he had refused. And eventually when we went on Monday true there were shelves, the police had alleged that there were shelves and there were no sockets or plugs in the wall, and true there were shelves but when we asked, the counsel asked the police to remove the shelves they did, the sockets and plugs were hidden underneath the shelves. Our client was then also convicted and sentenced but if I remember he was then acquitted on appeal.
But what I'm trying to do here is just set out some kind of pattern of what we faced, particularly in the magistrate's court. It is only a few matters. In fact the records that I have can make up volumes of these kinds of practises in the magistrate's court and also in the supreme court. I would like to sum up now because I think....
As far as the role of the judges, I've been asked to comment on that. In my experience I think I can say that there were judges that, who were clearly committed to state policy. And I think that one of the examples I'd like to say is in the State v Mahlangu. The hostility that we faced in court throughout no doubt was one that showed that the state, that the judge had already made up his mind. What had happened, Mahlangu - can I carry on for another few minutes? I'm trying to wrestle - In this matter the facts of this case was that Solomon Mahlangu and his co-accused had undergone military training abroad and had come back and instructed to carry out sabotage operations. On that day when they were in Johannesburg they had just arrived from abroad and they were at a taxi rank trying to get into a taxi to go to one of the locations. The policemen then starting searching their bag and as it was common practise those days policemen always search bags and contents of black people ...(tape ends)
They, when they had come back into the country they had not given any specific instruction, they had to await instructions for sabotage operation, and the facts of the case was as they ran down Jeppe street and entered in Gott(?) street, Solomon in fact had run in a different direction from his co-accused Mondi Matlong, Solomon had found a place to hide and he was hiding but his co-accused, Mondi Matlong ran into a room in Gott street in the John House warehouse and was confronted by a group of white men who were having tea. He went into panic and started shooting and tragically and unfortunately innocent civilians were killed. Solomon then came out of his hiding place and surrendered. He did not participate in the shooting whatsoever. He was convicted on a doctrine of common purpose and sentenced to death. I believe that he should not have been convicted.
But even if he was convicted I certainly believe there were extenuating circumstances in this particular case. For example, he was barely 21 years old at that stage, and that was not taken into consideration. Had Solomon Mahlangu been alive today I think he would have held a significant position in the government of today.
Then there were those judges who were not committed to state policy, but even when there was doubt in the interpretation of the law did not have the courage to sway in favour of the liberty of the person. And I often speculated why, was it purely a matter of courage or was it ambition or perhaps in some cases it was both.
And then there were those judges that really tried and tried very hard. For example in the State v Gumede and others when the attorney general's certificate prohibiting bail application was held so sacrament for years was a casualty after it was challenged.
I think I will end there. But I would like to make a few points before I end. If I may. Am I going on too long?
CHAIRPERSON: Five minutes.
MS JANA:: Five minutes. I think the inquests, there were several inquests where nobody was found responsible. The inquest of Ernest Dipali when he was found hanging in his cell; the inquest of Johannes Malatji who was shot at point blank range in his forehead while he was in detention. The policeman was found guilty of culpable homicide, sentenced to ten years and I understand later that he barely served a year in prison.
The inquest of Sipho Motsi, a Cosas leader, who was arrested and a few hours later was found dead. And the post-mortem revealed severe injuries on his body but the chief magistrate from Welkom, who was presiding found that no one was responsible.
In the inquest of Mandla Shabangu where Advocate Tomkin personally gave evidence to show that the shooting was unjustifiable, in spite of that no one was held responsible. I also would like to pose some questions. In my experience I did not know of any magistrate who supposedly visited detainees as required then and who assisted detainees and made reports of any torture or maltreatment or assault whatsoever. I think here too in my experience very few judges who could, visited detainees during that period, and if they did I'm not sure if anyone really came out and made a report and made public of their report and made efforts to come to the assistance of such detainees.
It was also a pattern in those days in courts to use parents and family members, husbands, wives, children, brothers and sisters as state witnesses and put the accused persons in very compromising positions. In fact it also weighed very heavily on their morale. It was about some of the most difficult periods that we had with our clients. Clients would be very strong up until the stage he or she saw a parent giving evidence for the state against him or her.
Okay can I go on. I think I should stop here and take some questions rather. I would like in conclusion to say that the least we can do is call upon those members of the judiciary, magistrates, judges who upon reflection now can honestly take responsibility for some of this behaviour to come forward. I think this would be, not only in the spirit of reconciliation and healing, but also to restore the people's confidence in our justice system. Thank you.
CHAIRPERSON: Thank you Mrs Jana. Hanif?
MR VALLY:: Mrs Jana due to pressure of time I'll just keep it short. Did you have any problems getting advocates to act in any political matters?
MS JANA: Yes, particularly in the early days. We particularly, we had great difficulty in getting senior counsel. I remember in one trial where we virtually approached every counsel, every senior counsel at the Johannesburg bar and some elsewhere as well and many senior counsels were not prepared to do these kind of trials. But we didn't have much problem with the junior, particularly the very junior counsels.
MR VALLY:: Would there be some counsel at the Johannesburg bar who refused to do any political matters?
MS JANA: I cannot say they refused to do political matters because that's not what the reason they would give. I'm assuming that this would be the reason in some cases. The reason they would give is non-availability.
MR VALLY:: Thank you.
CHAIRPERSON: Thank you Priscilla. Thank you for sharing your experiences with us. I think you have raised one of the questions relating to magistrates, they haven't actually made a formal submission. There has been call yesterday by members of the judiciary who participated in the system then to give some accounts of themselves. They have made copious submissions to the Commission but they haven't really been available to ask questions of. So that's noted as well.
MR MALAN: Mrs Jana you referred on several occasions to correspondence with the Law Society for not protecting you, not intervening on your behalf whatever, would you still have that correspondence or references available so they can make up a file in order to learn for future possible experiences. I don't want to rehash the past but I think it's important for the Law Society to learn lessons from what has happened in the past.
MS JANA:: I did not make several, I did not make several requests. I made some requests. I must say at that stage already I did not have much confidence in the Law Society. I did not believe that it was representative of the people of this country. And they had no show, they had not in any way, did not have a track record of protecting attorneys in my situation. But I did on some occasions, but I will try and endeavour to find those records.
MR MALAN: Please if you can also add there the occasions where they ask you to explain yourself so they can, we can also learn from that. I'll appreciate that.
CHAIRPERSON: Thank you Mrs Jana.
I would now like to call Miss Carole Lewis to take the witness stand.
Professor Lewis we would like to welcome you to the proceedings of the Commission. I understand that you're not going to be very long. Before we begin, however, I'm going to ask advocate Potgieter to ask you to take the oath please.
CAROLE LEWIS: (affirms)
CHAIRPERSON: Thank you may begin.
PROF LEWIS:: Is the mike working yet? Thank you Commissioners and thank you for asking me to present the submission that I did make in writing with the assistance of a number of my colleagues from the Wits law faculty. The essence of that submission is, deals with the role of the judiciary during the apartheid era and I do not want to deal with the same matters again. A number of the points that were made in the submission were made during the proceedings yesterday and I don't think it's necessary to go through them.
I do think however that no one can emphasise sufficiently the fact that everybody who was involved in the legal profession, the judiciary, magistrates, attorneys, advocates and academics were all complicit. We were all part of a system, sometimes for very good reason but, we all did play some role in upholding the framework of apartheid and therefore the framework that sustained gross violations of human rights. That role is not something that we can forget.
It has been said in a number of submissions that we ought to be looking forward not backward. And I think that, that is true but we can't look forward meaningfully unless we understand the errors of our past, unless we understand the evils that were perpetrated in the name of the law.
I want to turn in particular to the role of law schools in the apartheid years, not to deal with them in any detail because I understand that Professor McQuoid Mason, who is the president of the Society of Teachers of Law will be dealing with those issues. I want simply to highlight a few matters and to address them.
In his written submission to the Commission Judge Edwin Cameron pointed out that, and as I said earlier, that we were all part of the legal edifice of apartheid. What is true I think however is that academics played a greater role in the criticism of that edifice than did other legal professionals. And much was made in submissions yesterday of the very, very important role played by academics such as John Dugard and Tony Matthews in their criticism of the way in which courts were handling human rights matters, matters affecting security of the state and so on. Their attempts to keep the fundamental principles of fairness and of equity alive cannot be underestimated. And there were other people like them. But note that the critics of apartheid and the critics of the judiciary were, especially in the 60's, the 70's and certainly the early 80's concentrated at certain universities, Natal, Wits in particular.
The black universities that had been formed as part of the system of separation of black and white people and the Afrikaans universities with some exceptions remained silent. There were certainly Afrikaans academics, Johan van der Vyver is one, who spoke out against violations of human rights but for the most part their silence was notable. And their silence is as culpable as that of any other member of the legal profession.
It is true that more and more academics entered the battle against apartheid in the late 80's and in the early 90's, but the decades of ignoring the edifice of injustice within which we have all worked have had a marked effect. I was privileged to have studied under and worked with a person like John Dugard. I, and many of my colleagues knew that it was our duty to engage in the classroom and in legal journals in argument against the injustices constantly perpetrated around us.
Even in the sphere of private law, in the sphere of law affecting things like contracts and property there were gross injustices. It would be true to say that the whole of the law of property was permeated and poisoned by racial legislation. It is true also that in enforcing influx control and in enforcing the provisions of the Group Areas Act the courts had a marked effect on those areas of the law as well. It was possible to write about this to expose the injustices, to expose the effect in every area of the legal system of racial legislation and some people did so. Others claimed and continue to claim even now that they were involved in different areas of the law. That gross violations of human rights if they existed were not their concern, and that claim of course is untenable.
I want to turn away from the influence that academics attempted to have on the judiciary and on the profession generally and turn to the schools, the law faculties themselves, deal with student bodies. Here too the record varies very considerably. From the early 1960's, after the Extension of Universities Act even the open universities complied with the legislation that required them to exclude students of colour. In their defence I must say that they did so under protest, and that protest was sustained. As soon as it was possible in the early 80's to open the law schools to black students some law faculties, again notably Natal, Cape Town, Rhodes and Wits did so. The other universities maintained the colour or race barrier at least until the 1990's. Some have expressed their regret at this. They have expressed regret at their failure to speak out against injustices too. Others have maintained their silence.
As indicated in the written submission that I made to the Commission it is the extent of complicity in the apartheid edifice that still requires investigation and exposure. That it existed everywhere throughout the profession cannot be doubted. Universities, however, have been in the forefront of transformation, some of course more so than others. And the work that many of them now do, particularly in law clinics and in human rights programmes will to some extent make reparation. But it is up to academics now to remain vigilant to ensure that complacency does not set in simply because we have a democratic dispensation.
It is also up to academics to ensure and to participate in on-going education. The kinds of judicial education referred to yesterday. We have a duty not only to students but also to the profession as a whole and we have a duty to the broader community to ensure thorough and continued vigilance to prevent the injustices of the past being repeated. Thank you.
CHAIRPERSON: Thank you Miss Lewis. Hanif?
MR VALLY:: Professor Lewis would you concede that it was a tiny minority of academics in the legal profession who actually criticised what was happening?
PROF LEWIS:: It was a minority certainly. The size of the minority did grow. And I think perhaps that much is made of the direct confrontational role that certain academics played and some of the quieter acts of academics went unnoticed. Much of the writing I think in the law journals, much of the criticism of the courts did go unnoticed and some of what was done by academics was also perhaps too small to be significant but was, to some extent, just not known. But I, there is no doubt but that it was a minority of academics.
MR VALLY:: I ask this question because in the submissions to us some of the judges suggest that the decisions can be tested by academics and the media. And I submit that academics have in fact failed us in this era under apartheid and therefore the checks on the judiciary should not be left to academia only. What's your comment on that?
PROF LEWIS:: Well the checks on the judiciary should never be left only to academics. Clearly the media must play a role and the public at large must play a role. Academics of course are in a better position to engage in constructive criticism than others, it is the nature of their work.
I wouldn't agree that they've failed. I would agree that some failed. I don't think that one could say that academics on the whole did not try. I think that the record speaks for itself. If you look through the pages of law journals over thirty, forty years you will find fairly sustained criticism, not enough of it and perhaps the criticism should not have been made only through the medium of academic law journals, perhaps that was one of the chief failings. It was a failing that was remedied in the late 80's and the early 90's by academics who began to write in the pages of the press because they knew it would gain greater attention.
So strategies were not always as thoughtful or as helpful as they might have been but I don't think it would be true to say that academics failed in this enterprise. I also don't think that it is only academics who should be the watchdogs. I agree, however, that it is they who should be the principal guardians of vigilance I suppose.
MR VALLY:: My final question Professor Lewis. You singled out certain universities, I think it was Wits and Cape Town and Natal I think it was, these universities for a long time excluded black students and when they did allow black students they had to come in with a permit from their ministries. And didn't the administration of the universities also played role in monitoring the fact that people had permits or not? I say this because I have personal knowledge for example of a law student who completed most of his year at University of the Witwatersrand and thereafter was kicked out because it was found he didn't have a permit. The university took the step of de-registering him. Would you concede that in that sense the university was playing the same role as other institutions of apartheid?
PROF LEWIS:: I'm not aware of the case that you refer to and it is quite possible and I think that all universities have to accept responsibility for, as I indicated earlier, complying with the legislation, for complying with the Extension of Universities Act. I think one has to concede however that in the early 80's some of the universities did make a decision to defy the legislation and refused to accept the quotas that were imposed upon them, or that the state attempted to impose upon them. But it is undoubtedly true that the universities, perhaps had they acted in concert, would have been able to defy the law, and would have then had a much greater impact than in fact they did have.
MR VALLY:: Finally two questions combined in one. The university academics, and the debate is still on-going today were the academics at university were largely white, largely male and again reflected the mores and the culture of the society around them and therefore those universities were, if anything, not the bastions of justice and liberalism as it is claimed.
And the second question is regarding academics who in fact collaborated and intellectually justified both apartheid system and certain practises in courts. How would you react to those two questions?
PROF LEWIS:: Well I would agree with them. I think they're comments rather than questions. Yes, it is true that the universities and the law faculties in particular were not always bastions of liberalness. Yes, it is true that law faculties were constituted largely by white males and that to a considerable extent is still the case. So yes, there was complicity and there was fault and those things do need to be addressed.
As far as the defenders of apartheid are concerned, clearly they are as guilty as the judges who upheld apartheid rules when there was a choice open to them. They're as guilty as anybody else who sustained the framework that made apartheid possible. And there were many of them. I find it invidious however to sit here and to criticise colleagues, and certainly colleagues of an earlier era, but I would not deny for one moment that there was a great deal of sympathy for the apartheid system in many of the faculties of this country over many decades. That is clearly true.
MR VALLY:: Thank you Professor Lewis.
CHAIRPERSON: Thank you. Questions?
MR POTGIETER: Thank you Chairperson. Professor just two brief questions. You refer to the point that is made by Judge Cameron in his submission dealing with the fact that in a technical sense all legal practitioners participated in the system but I read you not to suggest that from a moral point of view that these people are all equal. That's the one point.
The second point. Do you have any views that you might want to share with us if not now, if you want to reflect on it perhaps at a later stage, in regard to the question of accountability so far as the judiciary is concerned?
PROF LEWIS:: Thank you. I do agree with you that not all people were equal. How could one not, how can one say that somebody who actively pursued human rights matters, who was an attorney in South Africa and who took on the defences of people accused by the system, how could one say that they are equal with those who acted in very different ways?
If one were to do that of course one would be suggesting that participation in any way in the legal system was in itself immoral and that of course is a complex argument and one that I think I would ultimately reject. Again for reasons that have been raised in submissions that were made yesterday and possibly for that matter this morning. I'm afraid I haven't been here long enough to know. But certainly it was better for the country as a whole and for people who were accused and people who needed to assert rights that there were lawyers who were participating. But I wouldn't suggest for one moment that all lawyers were equally moral or that all participated equally. That would be absurd.
As to the second issue, the accountability of judges and I suppose of other members of the profession, I think very often the record speaks for itself, I think that it would have been very helpful to everybody here had the judges participated in this process, had we been able to understand their points of view and had they been able to understand the points of view of people who've made submissions up till now. I think that that would have called them to account to some extent.
As to how much further they should be called to account I do think it is an issue that requires further reflection. I cannot off-the-cuff suggest of a way in which this could be done without doing great damage to the whole process of reconciliation that I think is one of the primary purposes of this Commission.
CHAIRPERSON: Thank you Professor. I think that in all the submissions that have come from the judges, and in fact have come through the proceedings yesterday, the question of education at universities has been highlighted. And certainly what one wants to develop in the future are people who speak out and who don't remain silent. So you play quite a central role in developing the minds of young people. And I think that needs to be encouraged at universities because I think all of us even from universities such as yours I think were prey at some stage to a particular kind of education which was posited on one tradition rather than another. And I think that what we need to learn is about how to become fearless critics in the system within which we work. So thank you very much for sharing your experiences with us.
Might I now call the Association of Law Societies. I've been informed by Mr van Vuuren that in fact it is not him who is presenting as we thought but it is Mr Trikamjee, Mr Mervyn Smith, Mr Monty Noel and Julian van Klemperer. If I could ask you to take up your seats please. Are you comfortable with having two of your participants behind you or would they like to join you? Is that fine?
Alright. Thank you very much for coming. I think you've probably sat through two days of submissions where the Association has also come under attack, but we would like to welcome you for making use of this opportunity and making a presentation. Before you begin, however, I'm going to ask Mr Richard Lyster to ask you to take the oath please.
MR LYSTER:: Thank you perhaps if you. Will there just be one person speaking? Will it be yourself Mr Trikamjee or others?
MR TRIKAMJEE:: Others as well.
MR LYSTER:: Perhaps just those that are going to be talking if you'll just briefly give your full names.
MR TRIKAMJEE:: Ashford Trikamjee.
MR SMITH:: ...Mervyn Smith.
ASHFORD TRIKAMJEE: (sworn states)
MERVYN SMITH: (sworn states)
CHAIRPERSON: Thank you Mr Trikamjee you may begin.
MR TRIKAMJEE:: Madam Chair and members of the Commission I thank you for the opportunity given me to address you. I do so on behalf of the Association of Law Societies, the umbrella body of the organised attorneys branch of the legal profession.
You have before you a lengthy submission made by the association. ...(tape ends)
... factual and objective information regarding the part played by the Association in the role of the legal profession during a third of a century which has passed since March 1960.
The Association hopes that this information will assist the Commission in the preparation of the comprehensive report, setting out the activities and findings of the Commission as required by it by Section 4, Sub-section E.
During the long period under survey it would have been remarkable for the Association to have remained untouched by the effects of the philosophy and practices of the Government of the day.
The attorneys of South Africa during that time were overwhelming White males in private practice. Many of them supported the Government of the day; if not as active party members, then as voters, whilst the opposition of others were steadily reduced by the ineffectiveness of the opposition.
This feature of the attorneys' profession was reflected in the composition of the various Law Societies, councils, which in turn comprised the Association of Law Societies.
Notwithstanding this and as our submission shows, the voice of protest from the Association of Law Societies was never silent and what it is also clear, is that the Association, even at the height of repression, had an awareness of the consistent onslaught on the rule of law by the authorities.
There is a consistent attempt throughout the period to protest against the injustices perpetrated. However, on closer examination these protests do not pass muster when tested against the Profession's duty to uphold the rule of law.
The record is replete with instances of resolutions that were ineffective, delegations to Ministers followed by press releases and nothing more, attempts at even-handedness so as to accommodate the Government's policy or elements thereof.
The will to confront these issues which we now understand to be the violation of basic human rights, was tentative at best. There is no denying that the organised Legal Profession in the form of the ALS and the various Law Societies failed to resist the onslaught of apartheid on the laws of the land.
It is important for me to acknowledge this at the outset and to apologise for this on behalf of the profession. An examination of the conditions that prevailed and that contributed to the situation revealed; that the ruling constitutional system of our country was the system of Parliamentary Sovereignty, which meant that the laws made by Parliament bound the Legal Profession, its institutions and practitioners as completely as they bound any other institution.
Many of those laws, if not all, were unjust and draconian, frequently disregarding, and even suppressing the principles of the Rule of Law and as a result the Profession found itself in a serious dilemma.
In order to maintain its viability and usefulness as a profession it had on the one hand to obey the law of the land, but on the other hand it was bound to be seen attempting to uphold the principles of our Common Law and the Rule of Law.
It is clear that it did not succeed in this balancing act and it is no small wonder that it should have come under attack and be viewed with suspicion by the greater majority of our country's people, those very people who suffered the disadvantages, degradation and often the cruelty of that very system which denied them the right to vote.
The Association protested much of the unjust legislation proposed or past during that time, even though the results were largely unsuccessful. Again Parliament could do as it pleased.
It must be admitted that this resistance on the part of the Association took time to develop. I then should just say at the commencement of the period under review and for several years thereafter, our Association's counsellors and indeed the bulk of our profession, were ill at ease with the doctrine of human rights.
The inborn caution to steer clear of politics in the controlling position was there held in the Profession, would further have averted their gaze from occurrences of that kind.
They chose or seem not to realise the potential danger of such events to our legal principles and system.
By the late seventies and throughout the eighties and early nineties, that attitude changed to an ever increasing degree as the tide of global opposition to apartheid rolled in.
The movement towards human rights also began to take root and to flourish. Thus it was that towards the end of 1977, the Association took the unprecedented step of bringing Sir David Napthly(?), an eminent British lawyer, to South Africa to attend the Steve Biko inquest as an independent and objective observer and to furnish the Association with a full report on the proceedings.
This occurrence and other similar occurrences having to do with the Government system of detention without trial, as well as that system itself, were strongly and repeatedly condemned by the Association as its submission shows.
Protests by the Association against the unjust legislation, such as Group Areas Act and the Squatting Laws were likewise made.
The question remains; did the Association do enough? We have earlier stated that it did not.
Could it have been more persistent in its efforts?
Why did it throw in the towel when by continuing the combat it might have gained victory?
Why did it overlook some very serious instances of the violation of human rights?
Why did it overlook some very serious instances of the violation of human rights?
These questions all call for answers. It must be admitted that when the Association's efforts came up against the ultimate brick wall of the sovereignty of Parliament, which completely blocked further lawful protest, the Association considered that it had little if any option either than to accept the position.
Every attorney had sworn an oath of allegiance upon his or her admission in practice. Unlawful action in further protest could well have meant breach of that oath. This was all part of the dilemma facing attorneys.
There were indeed notable omissions in the field of human rights in which one could have, or would have expected the Association's counsel to have taken a serious and sustained an interest as it did in other fields; such as detention without trial and deaths in detention. Such omissions were the failure to act in regard to shootings involving the police, forcible removals and the Pass Laws.
That such omissions took place - there can be no doubt. We have endeavoured to explain why they took place. We know today that our counsel should have protested in these matters, but did not do so.
The Association of Law Societies in 1997 and the various individual Law Societies have a collective responsibility to acknowledge our failures.
On behalf of the Association of Law Societies as an organisation and its Law Society counsels, responsible for those short comings, we tender our sincere apology to the multitude of people whom we may have been able to help, had we acted positively with conviction and determination.
The Cape, Transvaal, Free State and Natal Law Society Councils associate themselves with the submission of the Association of Law Societies.
Madam Chair, that is the brief response. We didn't want to burden you with the written response which you have before you.
Mr Julian Von Klemperer, the President of the Natal Law Society, one of the only societies that made additional submissions, apart from the submissions by the Association of Law Societies, is here and I'd ask him if he wants to address you at all.
MS SOOKA: Thank you. Mr Klemperer?
MR KLEMPERER: I haven't been sworn. Would you like me to ... (intervention).
MS SOOKA: Yes, we would ask you.
MR KLEMPERER: I believe I'm going to be sworn at, Madam Chair.
CHAIRPERSON: (laughter) Mr ... (intervention).
JULIAN VON KLEMPERER: (sworn states)
MR KLEMPERER: Madam Chair, I have very little to add to the representations. As they said at the beginning they were prepared in some haste and without submission to the Council for approval I am pleased to be able to report to this meeting today that the submissions were considered by the Council of the Natal Law Society last Friday and were approved. So they are made with the approval and authority of the Council at this stage.
I don't know if one should touch on anything, but Mrs Wilson raised the question of Roly Arenstein and as it appears from those submissions, the behaviour of the Natal Law Society in the matter of Arenstein is one of the matters where it does, with respect, emerge with some credit.
I can confirm for the sake of record as my colleague Mr Lax mentioned that Mr Arenstein was re-admitted in 1994 with the support of the Natal Law Society Council. He attended an annual general meeting in Durban very shortly after that readmission at which the whole question of readmission, particularly in the Cara Hessen case was discussed and I think if my recollection correctly serves me, he was complementary to the Council for having taken a principle stand. It refused to have tried to strike him off. The work was done by the Minister who changed the Act.
As I have also mentioned, in respect of Arenstein, the Minister intervened to try and prevent the Law Society from giving him permission to work in an attorney's practice after his removal from the roll and the Society refused to back down on that as well.
So that's one matter in which there is some credit and I raise it not because I want particular credit, but because it was raised by Mrs Wilson this morning.
Thank you Madam Chair.
MS SOOKA: Thank you Mr Von Klemperer. Do Mr Trikamjee, do Mr Nel and Mr Smith not want to make some kind of comment?
MR TRIKAMJEE: No, I think they'll be responding on questions.
CHAIRPERSON: Alright. Hanif?
MR VALLY: Thank you, Madam Chair. Mr Trikamjee there's a quote in the NADEL submission distributed to you and I'll quickly read it to you.
An extract from the Association of Law Societies annual report for 1994, where the chairperson of its human rights committee, Mr A H Trikamjee reported and I quote:
"I was privileged to attend a short seminar on international human rights in Geneva in June 1994, organised by the international Bar Association, where I was quite surprised to learn of the human rights violations in our country. This not only shocked me, but left me quite speechless."
Is this in fact correct?
MR TRIKAMJEE: No, I think that's been taken out of context. I should know more then anybody else about human rights and I don't want to speak about myself here, because I don't represent myself here but I think that the whole idea, or the whole intention there was to highlight that in this country, within the ALS there appeared to be a total disregard for human rights, where as overseas they seem to know so much about it. It was being exposed there and yet within the profession itself, it was receiving no attention. That was the thrust of that particular statement.
MR VALLY: As a chairperson of the human rights committee for the Law Societies what reports on the violation of human rights have you brought to the attention of the Law Societies?
MR TRIKAMJEE: Well, I can't tell you that now in detail, but from time to time we had meetings of the committee. I was one of the members of the committee and what we would do is we would meet and try and get from the members together with ourselves, instances what - where we could act and I think those were some of the instances where you find in the main submission where representations they made on behalf of the Association of Law Societies. It's a pity that Mr Ntsebeza is not here, but his was one of the cases that we took up when he was being threatened as a result of a secret document that he got hold of where there was an order or a contract out for his apparent killing by members of the security forces. Now, we were involved in doing something about that to the extent that we arranged with the then leader of the Transkei Government to give him protection.
So these were some of the instances that we dealt with. But I'm not going to sit here and tell you that we were great protagonists of human rights violations because that didn't happen within the ALS and that's one of the failings.
MR VALLY: In the portion that you've read out to us, summarising your submission to the Commission, there's a bit of confusion on my part. It appears as if the Association of Law Society - and I'm talking about paragraph six of what you just read out - seems to identify human rights with politics, that issues involving human rights were seen as being political. Is that correct?
MR TRIKAMJEE: Yes. That's how, I think, the previous council saw it. Anything that involved protest, anything that involved human rights violation, anything that involved the ruling order at that time was seen as a political issue and they conveniently put it aside.
MR VALLY: When did this attitude change?
MR TRIKAMJEE: I think it's changed progressively, perhaps more notably in the last four or five years, particularly since the creation NADEL and BLA, which I think was a direct result of the ALS inability to deal with these problems. I think the existence of NADEL and BLA and their attempt, and constructive attempts to highlight these issues call the ALS to slowly start to rethink its attitude.
MR VALLY: Were the position that you expressed that seeing human rights violations as being in a political domain, reflected - a reflection of the views of your constituency?
MR TRIKAMJEE: Of the Association of Law Societies?
MR VALLY: That's correct and you represent, by law, all attorneys in the country?
MR TRIKAMJEE: No, the Association of Law Society is not by law. The Association of Law Societies is not a statutory body, but the four provincial provinces' law societies they are statutory bodies and they represent all the lawyers in the country.
MR VALLY: So your affiliates by law represent all the lawyers in the country?
MR TRIKAMJEE: Yes.
MR VALLY: Sorry, all the attorneys in the country.
MR TRIKAMJEE: Attorneys, yes.
MS SOOKA: May I follow that up, Mr Trikamjee because then the question that one wants to raise is; was that then the representative view of all the attorneys in the country at the time, because however one phrases it, it does represent attorneys and there have been particular complaints against the various associations for their failure to intervene and I note in your submission at - I think it is paragraph B, where - there's somewhere where you state I think - and I just want to get that
"The will to confront these issues which we now understand to be the violation of basic human rights was tentative at best."
I mean I think that the question one wants to ask you, human rights violations remain human rights violations whether now or in the past and surely with the enormous amount of information available with the kind of statements people were making by the ever increasing complaints about the system and what was happening how can you have attorneys actually saying we now understand? I just want to understand that phrase.
ALS MEMBER: Madam Chair, I think it's important to understand it and now is a general overview. There is no question that in the recent years and in the seventies and the eighties, as the record will show, we were aware of what these violations were. What we're attempting to say here is that we couldn't do enough. It was tentative and it was wrong. We tried, we went so far and not far enough. But if - we knew what was going on if that's that question, there's no doubt about that.
MS SOOKA: Thank you.
MR VALLY: Can I just follow that up, Chairperson. That is something that I can't understand. You do raise the question in the summary that Mr Trikamjee had read out, but why did this happen? You raised it, you asked the question, you're critical about yourself, you conceive that what you did fell short of what you should have done in the circumstances, but why? And that's in that context.
Can I elicit your comment on the view that has been expressed flowing from the fact that he stated in the summary that the overwhelming majority of attorneys in private practice were white males, as you set it out in paragraph three of the summary. The suggestion that what really happened was that these people were beneficiaries of the system and that is why they were only prepared to go up to a point in questioning the system. Have you got any comments on that?
ALS MEMBER: You're exactly correct. That is exactly what we're trying to say. These were people who were products of the society. The society was mirrored in the Law Societies and in the ALS and the very notion that people were in private practice were white males, reflected what was regarded as their self-interest and resulted in a failure to uphold freedom and justice and democracy. There's no question about it.
But at the same time, and I'm not trying to improve what the position was, there was an awareness of what was wrong and that record is before you in very great detail.
What we're saying is, we knew what was wrong. We spoke out on occasions, on many occasions. In some instances quite forcefully, but it wasn't enough. We know it wasn't enough and that's what we acknowledge and apologise for today.
MS SOOKA: Thank you.
MR VALLY: There's this issue of, which you cite on page 18, paragraph nine of your submission - there's an ambiguity about your positions which worries me and this is why I need clarity. You say
"Nevertheless on a number of occasions that Parliament passed laws that were clearly unjust, the organised profession stood up and spoke out. This will be demonstrated below.
On the other, as has already been stated, there was such occasions when the profession remained passive and there was one occasion, the case of Law Society of Transvaal v Mandela, when the profession learned that its members were not inevitably bound to follow slavishly the laws of Parliament and that breach of a law not involving anything dishonourable did not necessarily mean disloyalty to or violation of allegiance to which every attorney swears solemnly affirms etc".
This is the case where the Law Society brought an application to get Mr Mandela's membership of the Law Society turned down. I'm trying to understand what's this lesson you learned?
"The profession learned its members were not inevitably bound to follow slavishly laws of Parliament."
Here you took the initiative to get him debarred and the court overrule you what lesson did you learn from that action and what can you tell us about that now, because you don't say much about it in your - well, you say a lot about it, but you don't say much about the lessons that you've learned. I'll read you the last paragraph.
"In disobeying a law that he believed to be unjust, Mr Mandela in yielding to the moral imperative, may well have demonstrated one of the very rare instances in which a moral imperative is truly just and justifiable."
Now, one of the questions we've asked you is the connection between justice and the law. Here you say and justify your actions at the time of trying to get Mr Mandela debarred and your application was rejected by the court and you call it "one of the very rare instances in which the moral imperative is truly just and justifiable".
What's your understanding of the concept "justice as it pertains to law", which is one of the questions we've posed to you in the list of questions we sent you?
ALS MEMBERS: Just to answer the question about what lesson we learned, the lesson of course is that the judgement that followed on the application and I think that one must see the matter in perspective, the matter was heard in the early 1950's and the application was refused by the court and the Society who brought the application learned a lesson that the lesson of the moral imperative that you've quoted so correctly and that's the lesson that we learned at that time, the lesson that the Transvaal Law Society learned in trying to disbar and strike Mr Mandela off.
MR TRIKAMJEE: Can I just add to that, Mr Nel has given me some information, I think after that application the Transvaal Law Society did not make any application thereafter to strike off an attorney for that type of an offence. I think the other Law Societies might have and I think Natal would probably be one of them, but certainly from what Mr Nel tells me, the Transvaal Law Society thereafter didn't pursue applications of that nature.
MR VALLY: Did the Transvaal Law Society not oppose any admissions by any persons who may have been convicted on political grounds. I'm talking about the Transvaal Law Society. You say Natal may have done so.
MR TRIKAMJEE: You'll have to forgive me. I'll have to ask again.
MS SOOKA: Mr Trikamjee one of your colleagues would like to join you in ... (intervention).
MR TRIKAMJEE: (indistinct - not spoken in microphone)
CHAIRPERSON: Alright.
MR TRIKAMJEE: Can I ask Mr Langenhoven then to take the oath and answer the Transvaal Law Society?
MS SOOKA: Yes. Mr Langenhoven, do you want to take the oath or the affirmation?
MR LANGENHOVEN: The oath.
MS SOOKA: The oath.
MR LANGENHOVEN: (Duly sworn in, states).
MS SOOKA: Thank you. You may be seated.
MR VALLY: Madam Chair, maybe I should repeat the question, but also we know that even after the case where the Transvaal Law Society failed regarding Mr Mandela, the Natal Law Society continued to do that. We're now going to find out if the Transvaal Law Society have done anything of the sort.
I think I want to shorten the question, because where I'm heading to is we've been told that even up to now, and this has to be confirmed, that the Cape of Good Hope Law Society has refused to register the Articles of someone who was charged in the Upington 26 case and this is what I want to get clarity on. Have lessons been learned and have attitudes change?
MR LANGENHOVEN: If I may answer that question, you must please recollect that when this all happened I was still at University so it's a long time ago, but when I had a look at our minutes of the particular meeting, it seemed to me as if the Law Society had acted upon the request of a policeman who advised them of the fact that the President had been convicted in terms of the suppression of Communism Act and had been sentenced to eight months imprisonment, suspended for two years.
From the rest of the minutes it seems to me as if at that stage the Transvaal Law Society, although they were composed of very eminent lawyers, lost their sense of independence and acted as a result of this request.
I think if there's any lesson to be learned from that, it must be that the judiciary and its components must at all times be fiercely independent.
I'm happy to say that no such an application was ever made again by the Law Society and I cannot think of any instance and I must say this also, I had hoped that it would have been told to you in the initial address, I went through or I had our administration go through all our minutes in that particular time and we made an extract and we tried to sort of categorise those in certain - under certain headings and in date order. To give you an idea, or if anyone wanted, I have a few copies here if anyone wanted to see it, to give an idea of how the matter went. It is strange that it followed the same route as is set out in the ALS submission, that there is in a certain sense compliance of the Government in the sixties, a certain sense of resistance creeping up in the seventies, but not so much that you could talk about it, but in the eighties it seems to have hardened into real resistance in the sense that from the Transvaal Law Society commissions trooped to the Ministers, reported what they thought had to be reported on, all the minutes when reports were made to the Law Society on what had happened there started off with the words they were received very friendly. It ended with the words that the Minister was very sympathetic and then like our erstwhile Councillor Sian Mashidi would have - also he'd want to say: "Die saak geniet aandag."
But I reiterate what was said by the Law Society. That's where the matter rested. I have also looked through the minutes to see whether individual members, because that will be a great concern to me, to see whether individual members approached us for assistance and we did not give it.
I heard Priscilla Jana this morning. When I look through the minutes I only saw that we were approached by Ismael Ayob on behalf of a few members once or twice and Ismael Ayob when we discussed today's hearing at our last Council meeting told me that he wanted his protest register to the affect that the assistance he got was not worth to talk of or it was non-existent. If that is so, I think the Transvaal Law Society owes an unqualified apology to members who they refused to assist in that time of need.
MS SOOKA: Thank you, Mr Langenhoven. Hanif?
MR VALLY: Thank you, Madam Chair. In terms of what you just said now, the perception is that the Law Society in fact harassed lawyers who actively assisted people in political trials in the period which is in terms of our mandate. Would you say that's true or not?
MR LANGENHOVEN: If it is true it would be a very sad thing to have to say, but I have not come across such evidence, not in what I had tried to research, no. But if that is true, it would be a very sad thing.
MR VALLY: The question now, you've detailed very clearly to us and we're grateful for that, the assistance you're giving to articled clerks and the training schools and I think that's quite important for the country, the question is ...
...(tape ends)
... your report to educate your constituency, your membership on the issue of human rights and the importance of upholding them?
MR LANGENHOVEN: Offhand I cannot say that there has been any action taken to educate members of the constituency other than to attend to the fact that things have changed and that we should change with it as far as our organisations are concerned and as far as our attitude are concerned, but I cannot recollect that we - perhaps Mr Trikamjee can do much more to answer that since he is on the human rights committee, but in the Transvaal Law Society offhand I cannot tell you.
MR VALLY: I've got a number of notes regarding people who have been struck off by applications from the Law Society one of whom is Mr Bululani Nqcuka. I assume he's the Chairperson of the select committee in the National Council of Provinces it's called now. He's Deputy Chairperson. Deputy Chairperson, thanks.
The question I want to ask you is that in view of the track record which has been generously conceded by you, what is the Law Society doing to right these wrongs?
ALS MEMBER: Madam Chair, the question related to Mr Nqcuka I dealt with it within my submission, Mr Nqcuka was not struck off the roll, an attempt was made by the Natal Law Society to do so, it's at page six of the annexure ... (intervention).
MS SOOKA: Sorry, may I ask you to ... (intervention).
ALS MEMBER: He was re-admitted, sorry, he wasn't struck off so he wasn't re-admitted.
MR VALLY: Thank you, yes ... (intervention).
MS SOOKA: Sorry, can I intervene here?
MR VALLY: No, you can't.
MS SOOKA: Sorry, Ms (microphone not on)
MRS JANA: He was not struck off, because he took the matter to court and it was the court - it was only because the court (indistinct) that he could not be struck off.
ALS MEMBER: Madam Chair, with respect, in every matter nobody is struck off by the Law Society the court strikes them off. I don't want to hide behind that. We've dealt with it in the submission that it is a decision that the Society took for which we apologise.
MS SOOKA: Thank you. Mr Vally are ... (intervention).
MR VALLY: The question is and I accept what you're saying and I accept what Mrs Jana has said and you do set it out quite clearly in page seven of you submission, you brought an application and you lost your application, but the question is what are you doing to right such applications that were brought for overtly political reasons?
What is the Association of Law Societies doing about past injustices which it was instrumental in committing?
MR TRIKAMJEE: I think the Natal Law Society has already done what it - what wrong it had done by undoing the wrong. They made two applications recently. You've heard of the Roly Arenstein application. The other one was the Kagard Hashen application where the Law Society on its own brought application to reinstate those members as members of the Society.
So there has been a positive attempt to start to put right what was done - what was wrong in the past.
MS SOOKA: Mr Trikamjee is that being echoed out in, you know, at the levels of the Law Societies?
ALS MEMBER: I'd like to just deal with the Cape Law Society that I also represent. I have tried to make some enquiries. We know of no such application of the Upington 26, who was refused. Each matter - for each application for articles is clearly dealt on its merits and clearly one of the questions is do you have any criminal convictions. But I think I could say on behalf of the Council without even consulting them, that anybody who was convicted of so-called political offences would not be viewed in the same light as somebody who has an ordinary criminal conviction. Certainly not by the Cape Law Society, which incidentally to our knowledge never struck anybody for political offences, nor harassed anybody who defended political offenders during that time.
MS SOOKA: Thank you.
MR VALLY: Madam Chair, I just want to get two quick ones in, which is questions that have been handed ... (intervention).
MS SOOKA: Very quick, because we're running ... (intervention).
MR VALLY: Very quick, because in view of the last comment about the Cape of Good Hope Law Society the name of the persons whose articles you people are allegedly refusing to register is Mr Justice Bekibeki. This is one of the persons from the Upington 26 and maybe you can give us more information on that at some point?
ALS MEMBER: Sure.
MR VALLY: And then I've got a question here as to who moved for the removal of Mr Lewis Baker after his conviction and who decided not to repay his contribution to the provident fund, because he neither died nor resigned? The question comes from senior counsel.
ALS MEMBER: To the best of my knowledge, he was removed by the Department of Justice and to the next best of my knowledge, the question of repayment, I do not know what happened, whether there was a request for repayment at the time that he was removed, but at the moment the amount is being discussed between the attorneys of the late attorney and the Fidelity Fund. So at the moment there is a discussion on how much he should be repaid and that centres on what was the value of money then and what should it be now and that kind of thing.
I think there is also a problem about how much did he initially contribute. So if those problems are attended to then ...(intervention)
MR VALLY: But he will be repaid?
ALS MEMBER: He will definitely be repaid. There's no doubt about that, it's only a question of how much.
MS SOOKA: Thank you.
MR LANGENHOVEN: I may also say that in that particular regard, the Transvaal Law Society issued a blank invitation to anybody if it is possible, to have posthumously a name reinstated, that we will attend to that. Even though we did not strike the particular person. We accept the fact that we could have come to his assistance at the time that the Department applied for the striking and we did not do so.
MS SOOKA: Thank you Mr Langenhoven. Hanif I'm not going to allow you to proceed, anymore questions on this side.
I would just like to ask one question. Sorry, Ilan.
MR LAX: Thanks Chairperson. Sorry, you took my nod for a no. The one issue we are grappling with and we are going to have to grapple with, is the question of how do we make the judiciary, and I use it in its broadest sense, in some way accountable? How do we, apart from examining them through this process, the fact that they're not here - yesterday a suggestion came from Mr Wallace of the Bar Council that some process should be put in place for serving judges and magistrates through the Judicial Services Commission and possibly the Magistrates Commission. He didn't say that, but I'm adding it in as an obvious rider. What does the ALS think we should do or the nation should do and how should we dealt with the fact that there are clearly scores and scores of people within the judiciary who through their conduct and practice have clearly illustrated a disregard for human rights and who may well have now committed themselves to that sort of culture, but who in some way need to be called to account?
MR TRIKAMJEE: I think that probably have a forum and all one must do is to extend the powers of that forum and that's the JSC itself. You know, at the moment the JSC is there screening Africans for positions on the bench and I think that the moment the appointment is made, the JSC's function vis a vis that particular individual stops.
I think the powers of the JSC should be increased so that it can actually consider complaints that are made against members of the judiciary, because it is an independent body. It represents a cross-section of the entire community in this country. In that way judges would know that apart from answering the kind of questions that they have to when they're making applications as potential judges, it doesn't end there; that their performances on the bench at all times is going to be subject to some kind of a review or some kind of an eye.
I know it might cause all kinds of reactions from the judges, but I think that we've just got to be bold in our - when we made the appointment or rather when we created the JSC there was a hue and cry and outcry and what have you, but now everyone's accepted it as being a constructive process and I think that's the way to go.
On the second leg I think the submissions made by Mr Wallace of the Bar Council is a constructive idea as well. In a way we would support that as well.
We feel as attorneys that the idea that has been mooted all along and we think that inasmuch as there have been (...indistinct), that things have changed; that only persons from the ranks of senior counsel are eligible for the bench, I think that argument should never ever be entertained again, because that in itself creates an exclusivity.
We feel that within the legal - that within the attorney's profession there innumerable people, people who have apart from anything else been victims of the past, who are more than suitably qualified to be members on the bench and who would then with their positions they'd be able to influence their colleagues to start to change their attitude and change their horizons. I think this is the way to go.
ALS MEMBER: Just one last aspect while we're dealing with the JSC. Yesterday the Minister indicated that he felt that there should be much more transparency than is present with regard to the workings of the JSC. How does the ALS feel about that?
MR TRIKAMJEE: We have no problem with transparency at all and I think we can only support the Minister in his opinion as far as that is concerned. At the moment we get the impression that once an application is made it's discussed at the JSC forum and now with the media - with the limiting of media coverage on JSC hearings, we think that has not been a very good thing. We think the more transparent the whole function of the JSC, the better it would be in the interest of justice in the country.
MS SOOKA: Thank you. I think you'll be heartened to know that the Minister has said in his submission yesterday that the JSC hasn't really reached its full potential yet.
MR POTGIETER: Just one question, Chairperson, in the context of transformation, what is the present state of play in regard to the attempts and amalgamation if I may put it that way, involving NADEL and the BLA and your constituent Law Societies?
MR TRIKAMJEE: Right. The process was started in July last year after there was an agreement by all three bodies to form a single body governing the profession in the form of a twenty-person-committee. The twenty-person-committee basically being representatives from each of the nine provinces which will be new provincial societies. That has got on the way. There have been draft constitutions which have been prepared by technical committees appointed by all three bodies. We've gone to the last draft now which is the fifth draft and that one is now basically on the table for discussion by the three organisations.
We at the ALS, and I think that the resistance one is going to get all the time from all three bodies within the bodies, I think people are naturally - some people are not accepting change easily, but we have committed ourselves and for me personally as president of the Association of Law Societies, if there's anything that I want to achieve during the short term of office that I'm going to be holding, is to put that process on track and get it going. One hopes that in the next three months, if not four months, the new body for the organised legal profession, would be in place.
MR POTGIETER: So you're positive about the progress that's been made ... (intervention).
MR TRIKAMJEE: Yes, extremely positive.
MR POTGIETER: Thank you.
MS SOOKA: Thank you Mr Trikamjee to you and your colleagues. I think that the admission that has been made, is very very important, but I think that what we do want to see is that a change in attitude where lawyers don't just practice law, but try and practice - participate in justice as well. So, thank you very much for the contribution to you and your colleagues.
We're going to break for lunch now. I'm going to ask people to come back at two o'clock, please.
HEARING ADJOURNS
ON RESUMPTION
MS SOOKA: I welcome the BLA-delegation, Mr Justice Phosa and Mr Jake Maloi, who will be presenting on behalf of BLA.
Before we begin, I'm going to ask both of you to take the oath, please and I'm going to ask Mr Malan to administer it.
JUSTICE PHOSA: (affirms)
JAKE MALOI: (sworn states)
MR MALAN: Thank you very much. You may sit down.
MS SOOKA: Mr Phosa, could I just ask you to repeat that, because I think the mike was off at the time.
MR PHOSA: That I'll take an affirmation, which I did take.
MS SOOKA: Thank you.
MR PHOSA: Thank you, Madam Chair and comrades at large. Before we commence, I just want to make a few remarks. One concerns our apology for not having been able to produce a written address. Not as we did not want to, steps have been taken, but for reasons that cannot be explained here, but I've indicated elsewhere, we're not able to produce that so we had to come afresh. Consequently reluctantly as I was to personally represent, I've had to be roped in again to come and do something, because really we now want people who've been there longer and suffered longer and who can remember without any written documents.
Secondly, I personally did not have the advantage of listening to the NADEL presentation, which I honestly think would have been very useful. So what I imagine from what I've seen in the past, that we are going to coincide quite a bit and it's that kind of repetition which can't be helped.
Just thirdly, I had not want - I did not want to include my personal experiences here, because I just thought it would be unfair to the rest of the members of the BLA, because almost all of us have experiences and if I gave mine that's so long. But having listened to some of the aspects being mentioned, I would be obliged at some stage to have mention one or two, but I don't intend to present a personal account here.
We have dealt with this problem on the basis that there are really three faces of it, namely just briefly the question of the legislation that we're dealing with at the time - I'm not going to quote any laws, I'm just mentioning the division, the legal profession, the judiciary and the role of Black lawyers generally, following the question of how to deal with the problems.
Briefly about legislation one notes that it is a fact that this whole debacle happened in the background of very oppressive laws which could as some bodies have suggested, be the reason for their inactivity or less intervention than they should have done. On the other hand the very repressive nature of the laws called for more vigilance we suggest than was exhibited in most instances.
That legislation, apart from the obvious things, also had the fact ultimately of chasing Black lawyers, more particularly Africans out of the city areas, which is where the role of the Law Societies and it's Legal Profession generally comes up to be tested.
I start with the Legal Profession or we start with the Legal Profession we mention the obvious that it was - as it was said; male and White dominantly, but the emphasis is that only ten percent at - when people began counting, those who did, there are only ten percent of Black lawyers in the entire country. At one stage of course I'm sure it was not worth counting at all. Why I mention - we mention, we emphasise this is that we feel that it ought to concern anyone - it ought to concern anyone who cares at all about our history or about our general society, that in a society where as there are so many Black people at the best of times there are only ten percent who are lawyers. It should therefore produce a general observable tendency on the part of lawyers to try and deal with it. Now, this we say at no times has been found an attempt on the part of the organised society profession to consciously struggle to bring this to an end. This permeates right up to the question of the representivity of the judiciary. This ten percent affects everything else and we think that it is a factor which should be very paramount when we consider the background.
Obviously then, maybe because of that, or maybe because it would have happened anyway, the Law Societies and the Bar Councils are governed by White lawyers.
I must say from the outside, much as we are being - talking for myself - it is with regret that I have to keep saying White and Black, but it does exist. So normally I write I say "Black" in quotes and "White" in quotes because I don't believe that there are only White people or only Black people, but it is a political term that we refer to and perhaps I could just say I personally am unhappy about our going further and talking of people of colour. I don't understand what that means, because we talk of people of colour when we all supposed to be in "coloured". Now whose colour is which? I just think it should disappear. We can do without people of colour.
To continue; Now of necessity because of the fact that the majority of the lawyers that governed the profession are White, beyond their control really they are obliged to reflect the views that they as young children, White children in White society, grew up with (...indistinct) to the extent that they have learnt, but they start with an unavoidable limitation, that of growing in a society, not for their own fault, because Government has put us differently, all of us. Obviously we're too, Black people, who have certain deficiencies, but when it comes to the need to change society in view of the kind of laws that we deliberately placed - put in place to distort society, you are more likely to find that a White person is more likely to find himself or herself affected by that because the majority of those who were removed from society, are Black people. Majorities they were.
So it therefore becomes quite obvious when we deal with this illegal system that you are likely at the best of times to find more White lawyers, many as they are, in a position to bring about the necessary change in order to cater for all people. It has been said a few times and it must be understood, we say the same, that there are a handful of very powerful White lawyers who've done a lot and who still do a lot, because of necessity they were committed and they're therefore committed a colour suicide so you could say and have made contributions. But even they would do much better with the assistance of Black lawyers.
Now, the Law Society - I just want to give some examples, because many have been mentioned, but I just want to mention some of them to highlight even more than it had been done before. An indication of what the White Law Societies have done and the Advocate's Councils, Bar Council. The Law Societies, for instance, used the Fidelity Fund. Now, in this regard I may need some correction, but at a time when I was an attorney in Durban, there was an attempt to use funds, Fidelity Funds to fund those attorneys who have been conscripted to the Border to go and fight those wars which clearly to the knowledge of everybody were political wars. There was no mistake. Everybody would have known that those laws - those wars then were racial wars, but the Law Society of Natal - I don't know if it succeeded - it was striving to get those funds to go and look after the firms of those attorneys who had gone over there. Very insensitive.
The advocate sector was equally insensitive in respects already mentioned, but also one in another sense that I would like to mention. After Jimmy Kruger had done what they had done to Biko and had been left cold, the law - the Bar Council or the Law Society - Society of Advocates in Durban invited him to come and address us, knowing well that there's Black lawyers as well. You could say to their credit or to ours, they eventually stopped him at the last moment because of our protest. But the mere fact that we had to go through that, is an indication of the insensitivity and I'm not talking about donkey years ago. I'm talking about years when I was what I am. So many of the advocates who are in Natal now, senior advocates, were there. They had no difficulty with inviting Kruger.
The Attorneys' profession was silent when African lawyers were being legislated out of the cities. I've heard the accounts being given here, but they don't take away the point that by large nothing was done. In Durban of course there was intervention when it comes to the Bar. The Bar did take steps to facilitate the passports system. I wouldn't want to go so far as to condemn them for having done that. I do not know what my colleagues will say. I would not believe that a person had done something to try and improve the situation I should condemn him or her for that. I can condemn them for not going further. So as far as I am concerned that was a very useful step, because everyone was doing their best.
The White legal profession did not intervene when Black lawyers and litigants were being discriminated against inside courts, who were in courts practising with colleagues that we lived together, come to court, but in court the White clients would be only on one side and the Black ones on the other side.
In Durban there was a deliberate effort to deal with it in such a way that you already found yourself in some way on the wrong side without applying your mind to it. They didn't do that. In fact, it was then that the rudiments of the present BLA and NADEL emerged. It is then that the BLA as it was then Transvaal was formed differently from the other structures, not the BLA I'm in now, the original, when the DLA that is the Durban, later to be called Democratic Law Association was formed in Durban and other structures like that. This is now before NADEL came into being, just to give you the full picture about that.
NADEL became ultimately an attempt to put all these together to bring about a more national and undivided democratic Law Association, but all this is thanks to the attitude or the indifference of the profession to matters that affected us directly.
Now, apart from their doing nothing about the Peche's(?) case, Peche's case is under I'm going to mention later, the Peche's case, the Law Societies were all over the country going out of their way to apply for the striking off of Black lawyers on political grounds. Now, we all know those cases. The incorporated Law Society of Transvaal there is Mandela. Matthews versus Cape Law Society. It's a pity I was in no position to ask questions whilst this presentation was being done, but I do know that the Matthews v Cape Law Societies is 1956 and I would have liked to know what is being said about that, but it is there on record., 1956 (1) (SA) 807C. (...indistinct) law in Natal and this is the 84 (SA). These are just some of the examples of those cases. Now, obviously the Orange Free State can claim that it did not apply because it made sure that the problem was never allowed to exist. They just simply didn't have Black lawyers.
Now, both sectors, that is advocates and attorneys had qualifying examinations, they still do. Historically one should say that of the advocates came later. Now, these examinations, to the knowledge of both sectors have had the effect, whatever the intention was, of cutting down the free entry of Black lawyers into the profession. They just had a way of failing them, somehow, because we are told this they're not ready. But Black lawyers just see these examinations and fail them and they don't enter the profession. Now, the perception has been put across to the Law Societies and the Bar Council, I personally (...indistinct) to many of them - and we have said, let's find a way of letting Black lawyers have a share in the governance of the profession so that we can jointly look into these laws and into these examinations for example which you say are not rigged and jointly see what it is the problem there is with them that causes Black lawyers to fail them so much. Then we can jointly find a way of making them pass them, if not scrap those exams and change the exams. We have not been successful in that regard and it is insensitivity to say well I know, I know this is objective and it does not have me fail, because when they never say so really it amounts to that. If you don't mind then you'd ignore the point we started with that niggling ten percent or whatever of all your Black lawyers, that has to be attended to at all times.
We must observe here that the case for the necessity of a qualifying examination for the Bar is weakened by the consideration that advocates, the advocates who introduced the examination did not themselves write it. No-one says these advocates who did not write the examination, I'm one of them, but I'm not referring to me I'm referring to the White colleagues, no-one says and the judges say that they're any the weaker for not having gone through the examination.
So, when an examination is a problem, the (...indistinct) deal with it cannot be explained on the basis that they're going to destroy the profession because the profession didn't die without examination before that. So, the reluctance to deal with it - that's the question; is it just the examination, is it not found a useful method of keeping us away?
This of course goes for all eminent seniors and judges, they never went through it. Moreover the other side of the coin is that we have not perceived a brand of new advocates who look really intelligent and fire eating, because they've gone through such examination. It is not as if they could say; oh now I can see this examination ...(tape ends)
...practical training much as doctors do, not to say that professors - the lecturers must do that, but matters have been discussed and can be discussed. We are fighting a sole war in this, because it appears, notwithstanding what the ALS said here, it's not attending to the problem of that small percentage of Black lawyers and that is unacceptable to us.
So, no matter how many people apologise as we see the position, you can't come here just for apologies and therefore promises to do things. It is the present conduct that must indicate signs that bring change. We really have no hope, especially having gone through the transformation process - effort that we've gone through. I may - if I don't mention it later others will mention it.
The Black Law Association's efforts together with NADEL and gradually joined by the universities, as I've said - sorry, I've mentioned this - to try and keep lawyers out of the streets has not gained the support that it could have gained. There is no effort by both sectors to accelerate growth in the number of Black lawyers and to stop the anomaly of that small majority. Notwithstanding the constitutional change, that's another aspect, now, this is an aspect I know will cause a lot of reaction on the part of many people we do tend to go ahead of people in thinking, notwithstanding the constitutional change in the country's approach to punishment which is reflected in the elimination of the death penalty. Now it doesn't matter what one's views are on that now, the point of matter is death penalty has been removed and the amnesty for the morally based politically murderers who are given amnesty, or who may get amnesty if they qualify in the way stated, notwithstanding all that, there is no similar approach with regards to punishing the delinquent lawyers. We - now this had not been discussed by BLA as a whole that there's a move in BLA to say, really, let's reconsider whether we do what to strike just to go on striking everybody, you know it's very easy to strike off as a lawyer. It's very easy to be struck off. We do want people to be punished, but may we not consider in the present mould whether striking off is the only method. As it turns out for Black lawyers of course, it reduces even the few that there were. Most of the time they are the ones who are vulnerable to this form of approach. These are just some of the examples, many have been mentioned by others.
The judiciary; when it is taken into account that a judge of today is but an advocate of yesterday it would be naive of us to expect that the judiciary could somehow miraculously learn to become human and to conduct itself in a morally acceptable way. Now, I know there are exceptions, but what the advocate is, is what he's going to be as a judge. In fact the painful thing, my observation and that of others is that even advocates who were really good become nasty animals when they become judges. They just become rude and anything, I don't know what it is they get to there, I haven't acted yet, but I don't understand. They really become nasty. Now, this concerns the Black lawyers. We are - we think that the courts, whatever they think of themselves, should be exemplary to human behaviour. It is very sad when you find that judges enjoy, really excited about worrying counsel. Poor junior counsel are scared to go to court because the judge is a terror and who apparently talks about the tea times, tea time, or perhaps ...(indistinct) I don't know his family but it's just inappropriate. It's just undignified and apart from dignity, it does affect justice. The number of cases that get postponed because a certain judge is sitting or gets settled adversely to the clients rights, because so and so judge either he doesn't like the case or doesn't like or won't like the counsel concerned or there's fear that he's rude to everybody. Now, that's unacceptable. Judges are known for justice, not for their personal views and we haven't seen this during the case of judges. And when we discuss with counsel, I've done it, it becomes a big joke at (indistinct). Nobody says, hey, let's do something about it, because, I understand now why, because later when they become judges, they do exactly the same. We can't accept that.
Now, we understand that perhaps we should not be naive as I said that judges come from not just a White background, but they also come as it so happens from the higher classes of society. Now, we know that the laws anyway are made to cater mainly for the interest of White people - sorry, of the higher classes. It is true that our higher classes have not had been able to benefit, because of the emphasise on Blacks, an accidental thing, but I'm sure in no time Black lawyers will soon have benefit from this class structure. But the laws, I mentioned this because yesterday there was mention by one of the speakers that the judges are being unfairly criticised for a small fraction of their field, that is political cases, it is not true. They have been involved in lots of civil cases that were handled in a manner that was reflective of their background, either White or simply because they come from high society.
Now, I don't want to spend your time. I'm aware that you people know these aspects, but just quickly to save time, I'm referring here to the trend that develop up to the Trobs(?) case. Just briefly, the question whether or not one can have a right of action against an administrative action that is taken without usual warning or notice, simply because one does not have a right, even though one is adversely affected. Now, that was a big problem. Now, you can't say that's unimportant. It is not just political. It affects so many people, because as it turns out, by virtue of the society we live in, most of what would have called the right of Black people, are not viewed as rights. My rights to stay with my wife and remain with her in Durban and not be transferred to Maputo or whatever it is, without my permission, is not a right. So such people who were just transferred willy-nilly because those were not rights until Trobs case came into being. I'm summing it up for those who don't understand the aspect.
Now, that was a long thing. Just before that another judge who is presently of the AD, perhaps the judges involved in fairness to them, the one who was involved in Trob, is the outgoing (...indistinct) Chief Justice Corbett. He's the one that's been (...indistinct) about this change.
It just required him and others with him to change it. They changed it. It could have been changed any time, because directly before that it wasn't changed in a matter in which Justice Hefer was involved. They put laws, they put excuses. It is documented they couldn't do it. It was done, changed by others. Now, all those are not political cases directly.
Now, perhaps when I'm talking about rights, you might just reflect it's not part of this problem directly, but it is relevant. You know the - we know that there's a problem about definition of rights. It always amazes me that my rights to eat, my rights to add a room, my rights to live generally is not a first generation right. I'd understand and I would have that the first generation rights must be the ones that makes you survive. But the definitions are given by those who have the right to decide what's right and wrong.
Now, the history of the right to fair trial needs to be mentioned briefly. If I didn't mention it before, I should say that and I did say it. The number of judges - there are a number of judges who have, in spite of being "White" been
very exemplary, one of these here is Judge Didcott, Didcott J. Now, there - in what was called the Kanyile Rule he brought about the need, the need to give legal aid as a matter of right to indigent persons. It was called the Kanyile Rule. That was scuttled out of the window of course very subtly, because it was said, well no, no, no, we're not saying it shouldn't happen, but technicalities were used. Now, in the course of mentioning this I must mention the inconsistency of judges. Whilst I've just praised Corbett, J for what he did in the other matter, in this case Corbett, J is one who scuttled it out. Now, it just goes to show that you can't just have a willy-nilly (...indistinct) of judges. There has to be a pattern. There had to be some pattern in which I can determine if the law is so-and-so I get X-Y results. There can be allowed there will be of course each case will have it's particular factors, but there must be some way in which if I get up at home and I'm charged I know, look this being AYZ the result will be so-and-so, not depending entirely on who the judge is, but there you are.
In this matter, in the case of S versus Rudman and others - for those who want to record it - S Mtwana 1992 (1) (SA) 343 (AD), they said the following - he referred to the idea of what was suggested by Mr Justice Didcott -
"... as an ideal which under the present circumstances is not capable of attainment."
In other words the rights of the accused was not defined in terms of its need, but in terms of whether or not the Government can have the money. They didn't say ja, okay, let's do it. They just said, no, we throw it out. It can't be done. Nicholaas J.A. said;
"The court has no power to issue amenamus on the Government to provide legal aid and it should not adopt a rule, the tenets of which would oblige the Government to do so".
I'm timing myself, I'm looking at the watch, Madam.
Now, does anyone really want to be told what the majority of South Africans, properly informed, would have said if they're asked whether the Government should be obliged to provide legal aid. They obviously would have said, oh yes, oh yes, because the majority of people are poor and they would say where it is obviously a case of poverty and it is needed, the Government should be asked to do so. There can be debates about that.
Now, we do not want the South African - we do not approve of the situation where it appears that justice in South Africa is a hit-and-miss affair. We want some propriety, some order, some credibility as to what to expect in a court of law.
Now, the role of judges in political cases has been discussed and I don't want to spend too much time on that, because I think that's what most - almost everyone mentioned, but I do think that I should mention and I know this also is well known, I should also just refer to Peaches case and just quote, because it may well be that not everybody understands. This now falls in 1960. I'm within parameters of the mandate here. Now, Mr Peaches perhaps I should just mention that he later was to become the first director of the (...indistinct) and he then was the paid attorney to Mr Mandela and Mr Tambo. He went to court and sat on a chair that was destined for Whites only and he was convicted after some argument with himself and the magistrate. If you read it you'll find that he really wasn't arguing he was saying, yes, but I want to understand why this must happen. Then he said, look I convict you.
He was - his application, his application was dismissed by the supreme court and the Appellate Division confirmed that and it remains until the - someone goes to court, it remains a law in this country.
Now, the painful things about that is that a judge, Stan C.J. and that's another important thing about it, it was Stan C.J., said this amongst others.
"A magistrate like other judicial functionaries is in control of his courtroom and of the proceedings therein".
Then he went on to show why it was appropriate of him to do that.
Then he says -
The magistrate informed him that his...."
it's important, the magistrate's court, that is the room, that he wanted him to sit - oh sorry - that it was his that his magistrate's court, that he wanted him to sit there.
You see now it's no longer a question of what the law is, I want you to sit there and that he was not prepared to argue with him about it. Of course they convicted him.
Now, in the course of this it appears that Mr Peche did indicate what he was going to ask, he was going to ask if this is not going to be an unfair trial and the magistrate said, such statement to the magistrate would clearly have been implied that the accused would not have had a fair trial, but he says after saying a lot of things, he says, no, in this case the law did not insist that he should have sat there, but it was not in keeping with the spirit of the law. Then he says -
"It is true that the insulting statement which he intended to make to the effect that the magistrate would not give the accused a fair trial, if defended by him, he did not make, but that does not alter the fact of the fact that in spite of repeated warnings, he wilfully disregarded the order."
What I'm emphasising there is that although a judge had said had he made that statement, it would have indicated the probability of an unfair trial. He still calls it, says it would have been an insult to the magistrate. Now, that is sort of thinking that judges use and they can find any way possible to get round giving a proper judgment and they are masters when it comes to that.
Now the role of Black lawyers - sorry, I have already indicated what the position of the judges is - can I just say quickly, the fact that judges are not here, I don't think we should for explanations. We in BLA are not surprised. In the same way that particularly the Bar believes that it is a private body that brooks no interference by the Government, the judges even more so believe that they are a special brand. They cannot be called upon to discuss with us who are we. We are not as important as the judges are. The surprising thing, and this I need an explanation from somebody somehow, is that even the Black judges in there - I know that a judge Pius Langa has given his private thing, I would have thought they would have walked out there and said, we will go. What could they have done to them? I can't imagine that they sit there and allow themselves to be judged by us together with the judges whom we do expect to be disobedient anyway. The judges, Black judges haven't come here. I am amazed that they had done so.
I know, it was said yesterday, the method that we appoint judges, we can't insist that it be our way. I know I can't accept that, because judges are meant - perhaps this is the fault of the JSC - an ideal method of appointing judges should ensure that we get judges who are going to produce the spirit of the constitution as we have it now or the general views of humanity, and if they don't pass that standard they ought not to be brought in. We ought to have no difficulty then in saying, I'm sure judge so-and-so won't do so-and-so. It only can show that the JSC, even as an improved method, has not assured us the kind of judges we should have, of judges we should have, maybe the answer is we should now deal with it as well.
But before we do so, the role of Black lawyers is not one that can be said to have been perfect. I don't quite agree with the suggestion by Prof Lewis that all lawyers, all lawyers are involved. If it's in the same way that I say all judges, yes, because they're individuals, but say all lawyers I think my wife would kill me is she heard that at times when I said I was dying for, because I was not doing anything, many Black lawyers really can stand out there and be counted and many so-called White lawyers, the Bizos' there, have done their part. So, to come back to Black lawyers, you can't say that all lawyers have done nothing. I don't want even to try - I don't know what the TRC would do to me, but I simply say I would not be one of those to apologise for anything I've done in the past because we've done all that we could do.
Now, but Black lawyers as a whole, in a way that you can understand, coming from an oppressed society, being victims of the laws more than the White lawyers and seeing our White counterparts doing nothing about it, did turn really to be a let-down. Let's face this. I know many of them now are climbing up and they say that they did that and the other many Black lawyers didn't do what they should have done. I would think that they themselves should come up here and do their apologies, because some of them were actually being counter-productive. I'm not going to name names. I haven't come for that. I'm just stating the history as it was, but one understands why Black lawyers would do that, really by and large, because as I've said there was a problem that if White lawyers could do that, could not stand up and do something, how much more could they?
But the truth of the matter is when we go forward we are more likely to find - that is my, I surmise that we're more likely to find that even a Black lawyer who was not so constructive during his times as an advocate, an attorney during those times, would definitely be more dependable as a judge once the pressure has been removed, because that background from which he comes, his mother, his parents and everybody else compels him to contribute in a manner that he doesn't have to study. So there really has to be virtue in increasing the judiciary in trying to make the judiciary representative, because even those Black lawyers who were not wonderful on the whole surely should be reliable. Quite apart from the need of course even for just cosmetics are the Black people needed to see a representative judiciary, but I just think that Black lawyers would even at their worst level be a contributory factor.
So, I do not want to lambaste Black lawyers except to say that much more could have been done. There are problems that we had. The bigger problem is the answers. We do not propose, purport to have an answer to the problem.
Firstly, the ideal answer would be legislation. I know what people say about the draconian laws. A properly appointed democratic Government ought not to produce laws that should give us problems. Of course I realise that this not only is the case, you know, we don't necessarily now have that kind of Government, but in appropriate situation I think even this present Government, with what we've seen, is in the position to produce the kind of climate, the kind of infrastructure in legislation that any sincere lawyers, Black or White, would not find unacceptable. The only difficulty with that is, is that the same Constitution has been relied upon and the one does not begrudge this it's the right of people, by those who are (...indistinct) they rely on it and they pick up things and they use them and nobody can stop it. That's the Constitution. So, I can't say that we can rely on the Government too much, but I would think that the Government is in duty bound - it's its baby to look for ways of creating laws that make an atmosphere that will not make law foreign to society, because if lawyers (...indistinct) society may as well not exist and if judges can't make law what it should be, then they shouldn't be called, they shouldn't be judges.
I say as much I understand the Minister's problems, there is an obligation number one on the ministry, on the Government to bring about laws. If they go about it carefully, there should be no need for them to have to fight anybody.
The other alternative is one that BLA and NADEL engaged in, but even then we need the assistance of the Government. We are busy with the Law Societies presently because we couldn't start at the Bar Council discussing methods of bringing about change in the legal system, in the legal profession, but unfortunately we have the situation that although the ALS didn't say it here, they truthfully have no control over law. They have no control over what should happen. Their Government is really empty. The people that we should be dealing with that really matter, that govern the law, are the Law Societies. Unfortunately first of all they haven't come here as a whole. Secondly, when we deal with them, they are very adamant, they are not going to allow us equal control. All we're asking for is that we should have equal controls so as to be able to jointly look at the problems and learn from them some of the ones that we don't understand and jointly bring about change and improvement of the Legal profession. That much we are not getting. However I think for us to wait for the Law Commission to bring about change one day, that will be very difficult. I think steps will be taken now and the Government has an obligation to take steps where it appears that one or other of the parties concerned is marking time or abusing the situation to insist that we (...indistinct)
That, in a nutshell, is our suggestion as to a solution. There are - I do not really think that the TRC itself has an answer and I understand it from the answer that they (...indistinct) well it is a useful exercise because have now got out more ideas as to what happened.
But I don't think the answer would lie here.
If I could just, I am aware of time, I want to mention another one or two things that we mentioned. I have already answered the Minister. I said I don't want to talk about myself, but please Malcolm Wallace in a way, I'm one of those who've suffered and I'm just an example of that. When I came to the Bar my admission was objected to because I'd been involved in a fight with a White family and I was found not guilty in respect of some of the others, but guilty in respect of one of them and there was an appeal and I couldn't be admitted until that appeal was settled. On appeal even the judges remarked about why it was necessary to delay me, but for three months I couldn't be admitted. I couldn't therefore earn as a pupil because I wasn't an advocate. These are some of the things, Durban Bar.
I've had endless, I've been referred to the Bar several times. White judges complained in an affidavit all of them have come to nothing but they've had an effect, because I have perceived an attitude on the part of colleagues. That is the troublesome guy. Nobody can prove it, but I am a troublesome guy. These things go affect, they even effect your Black colleagues. The attitude of the Bar Councils are very, very vital and need to be attended to. They can't be as long as we don't have a share or perhaps in fairness to them I must say, I've written an article in the CONSULTUS of May in which I invited discussion and the Bar Council has agreed to discuss, but not as co- Mr Wallace has said, we made it clear there that we did not want to prescribe issues in advance. We said we should come together and jointly decide what issue to discuss, but now the attitude is that we were just empty, just gave a suggestion which has no substance. We did not want to put in a substance, but in the article when you read it - it is available - it's quite clear we said what the problem is what was unacceptable by and large on the lines that I give here. So we have - we're not negative to discussion. We trust that somebody will have a note of that.
The JSC I've already said, it should be attended to. I just, for one thing it doesn't have enough number of Black lawyers, of Black people, but it's an example of the problems we had with the Bar Council. We all know, if you read the newspapers, how long it took before the JSC was set up, because the Bar Council would not allow NADEL and BLA to have their own representatives. The attorneys were like that too but they virtually yielded, but the Bar Council didn't. To the end, our representative, Mr Mirani, had to go through an appointee of the Bar. They just don't allow or won't accept that BLA and NADEL are representative, because they're small in number. There are a problem and it's no use trying to pretend otherwise. There are many other problems and as I say, I do not want to make it my personal one, but perhaps if there are questions I can answer them.
My colleagues would add if they - there obviously must be a number of things that I haven't mentioned in endeavour to keep to time. Thank you.
MS SOOKA: Thank you Mr Phosa. Does your colleague want to address us as well?
MR MALOI: Madam Chair, I don't think there's anything to add at this moment in time. However, we do undertake to submit a full written submission in due course. Thank you.
MS SOOKA: We would be grateful for that to have it in writing.
MR VALLY: Mr Phosa, what does the Black Lawyers Association do to prevent the abuse of human rights in our mandate period?
MR PHOSA: The abuse - to prevent it?
MR VALLY: That's right.
MR PHOSA: Oooh, there are so many things we did. Firstly, we as an Association and I think you are being a devil's advocate, we as an Association created fora where we were educating to our own membership the importance of human rights.
In our magazine, The African Law Review, even the language, even the question of how to address one another as he or she, all those things that look so small were dealt with.
Actually before we had the problems with finances, the Black lawyers - the Legal Education Centre and in particular the African Law Review is full of examples of what we did.
A copy ...(tape ends)
MR MALOI: May I add, Madam Chair, that the BLA engaged itself extensively in also the housing problems in and around Gauteng Province in particular and also the removal of the farm labourers from farms. That was seen as a violation of human rights by the BLA.
We had in our Legal Education Centre a constitutional litigation section which had a full time professional manning it for the purpose of addressing issues relating to human rights.
MR VALLY: Madam Chair, I understand we are under pressure of time. Maybe once we get the written submission from the BLA we can forward questions to them.
MS SOOKA: Thank you. Questions from the ....
MR POTGIETER: Thank you, Chairperson. Can I just say, Adv Phosa that we note with some interest the point that you make that you have already - you are engaged with the Law Societies. You've given us the background in regard to that and that you have taken some steps to engage the Bar Councils which we think is a very positive thing and which is long overdue.
We note that our colleague, Peter Hodes, is sitting here whose heading up the GCB and (mumbling in the background) - there you got it. So, it looks as if there'll be some good work that could be done along those lines. That's just a general observation.
You've made a very, very important point here. You've raised a matter of concern and that relates to this insidious nature of an institutional culture and this thing about attitudes and how that affects people, particularly with regard to the situation around the judiciary.
You have raised the point that there are some expectations in regard to the post-1994 appointees, the expectations around that, but they're not part of this process as well. I don't know if you've got any thoughts at this stage about that, but we do have the reality of transition, that the majority of the judiciary come from the old order and most of the key positions are held by people who have been on the bench in that era, but for one or two notable exceptions.
Of course there is some other phenomena that one can speculate and so on. We know that it is so that new converts are often more zealous than traditional members of a grouping, but have you got any thoughts around that?
It seems to be a problem, because if people go in and they disappear and they're sucked up in the process, then we've got a problem, I mean. Then we are not getting anywhere.
MR PHOSA: Yes, sorry. Firstly, I wasn't going to deal with all the history of the situation before 1994, but you will -you may be aware that there was a conference called in Cape Town, suggesting - to suggest how the judiciary should be appointed. I made my suggestions then that a method that does not seek from the outset to ensure to get at least some commitment from the judge, even a pre-existing judge, that he or she, after admitting his previous conduct, like they like us to do, will then also indicate that he or she will change. If we don't do that, we don't have a basis at all. I don't know why it hasn't been done, because judges who wanted to become - to enter the constitutional court, are the ones chosen by the President, had to stand the test, had to be - to stand and queue up and prove themselves to what they should be. Many couldn't make it, because you know we had the last 25 people, but many others had applied. Many judges couldn't make it. I'm not saying the results were correct or fair, but the point is the process can be done, but the judges must assure us in the process. A process can be found where if a person has gone through at least said I did so and so surely he has to be very dense or very much of a wicked person to continue doing it. There ought to be a way found of doing that.
But we also have been battling with the question of training of judges. We have had - BLA has had a little bit of difference here with the Minister, because we suggest in BLA unapologetically that whenever a little bit of money comes from overseas towards the training, towards the improvement of law it should merely be put to us getting more Black judges, because we think that the presence of other Black judges, the JSC will do some role in deciding who they are, but even without that, it would have said the presence of Black judges will help in association to improve the judiciary apart from appearance.
The Minister says, look, it can't in spite of the constitution, it can't be seen to just pick up Black lawyers and then to train them. We have difficulty with that, but of course human beings differ. But we also say BLA and NADEL are now embarking on the means of getting assistance overseas. Now, the Minister has helped there, he took us out to try and get NGOs to help us with funds and means of training judges. In other words, we intend also to be involved in the training of judges and by training of judges we mean not just legal aspects, but finally within that the present judges as they are now, should go for a course on human rights. It is (indistinct) that it should be done. Any judge who says I know it well enough then fine he or she will lose nothing, can go on holiday and have it again. They should go through that.
But just in passing, Adv Hodes is not being fair to me. I told him that we'd avoided that this morning to him because we're going to have an AGM and I was hoping that I'll be away so that to make sure - oh yes, it's true, your AGM was three weeks ago - to make sure that my colleague here can deal with it and not me.
MS SOOKA: Thank you. Thank you for making the submission. We understand that we have placed you under pressure to make a written submission. It is quite important, because I think it can also be passed along so that other people who've made submissions can also respond to some of the issues raised, because I think the issues that have been raised are the ones that we're grappling with in the New South Africa. Thank you for coming.
MR PHOSA: Thank you very much.
MS SOOKA: I'd now like to call Mr Lee Bozalek, please. Thank you, Mr Bozalek, are you going to be taking the ... (intervention).
LEE BOZALEK: (Duly sworn in, states).
MR BOZALEK: Thank you Madam Chair and Commissioners for this opportunity to make a submission. I have made a written submission which in fact was initially my response to a request from NADEL for some information, but I then decided to put it in as a personal submission and obviously I speak here only in my personal capacity.
I was then asked to present the submission and after some hesitation I agreed. My hesitation was occasioned by the fact that my experiences and my insights which I relate here, I would think are really relatively commonplace amongst the people who did this kind of work in the past few decades.
The second reason was that there are a lot more people who are better qualified than I am to speak of this. People with longer experience or a greater depth of experience, but perhaps there's some value in your Commission having the view of a member of the infantry so to speak, since you've heard and will continue to hear the evidence of the generals.
If I can then just go through quickly, my submission, you - as I say it's on record and I know that you have your own time difficulties here. I base my submission on the experiences which I had practising as an attorney in Cape Town from 1975 to 1994 and that was initially in a private firm and then working for many years for the Legal Resources Centre.
Now, particularly in the earlier years of my employment I did quite a lot of work in the Magistrate's Court representing clients who were charged with offences such as public violence, arson, possession of banned literature, trespass, illegal squatting and also statuary offences such as terrorism and the like.
Dealing with the hearings, the nature of the hearings that the client would receive, I'm going to talk mainly of my experiences in the Magistrate's Court because experiences of people in the Supreme Court are better documented and the academics have full scope for criticising and analysing the role of the Supreme Court, but I think the Magistrate's Court is where most people experience the legal system and much of that is undocumented.
I've said here in my submission that I seldom felt that my clients would ever get an impartial hearing in this type of case in the Magistrate's Court and that was because of the make-up of the court. For most cases they were Afrikaner White males and obviously civil servants and the identification of these magistrates with the ethos and the values of the apartheid Government was often manifest in the manner in which they handled these trials.
I've also recounted here, I remember consulting a book called The Super Afrikaners by Hans Strydom and Ivor Wilkens and going to the incomplete list of Broederbond members which they listed as an appendix and there I found the names of two Regional Court magistrates in front of whom I'd appeared in cases with a political flavour and where my clients had received distinctly unsympathetic treatment.
Now, to my mind membership by these magistrates of the Broederbond should have disqualified them from hearing any case with any political connotations whatsoever. I also have little doubt that their membership of the Broederbond was directly linked to their membership. to their position as - their appointment as Regional Magistrates.
Now, these experiences in Magistrate's Court highlighted for me the necessity for the judiciary and by this I include the Magistrate's seat to be entirely independent of the Government of the day.
A further aspect which was obviously a huge problem was that the courts were in no - the magistrates were in no way reflective of the composition of the country and that is something which I think we still have a great problem with and obviously the Bench has to be, to a much greater extent, representative of the situation in the country as a whole.
There is no doubt in my mind that there was a very serious political bias in the Magistrate's Court in the years past and this was evidenced to my mind by the relatively uncritical acceptance of police evidence with corresponding scepticism of the evidence given by the accused or his her witnesses. My experience was in these case that there was quite a substantial margin of discretion which any magistrate had in a given case very often relating to issues of credibility and in these case this discretion was almost always exercised by the magistrate against the accused and in favour of the state.
As I say I'm not going to deal with the role of the Supreme Court, but I will say that right of appeal to the Supreme Court was incredibly important in those days. Part of the problem was, however, that very often it had strained the resources of the accused or the organisations which supported these accused to obtain legal representation.
Merely in the Magistrate's Court an appeal often was a right which one couldn't exercise.
Now, I was also asked to talk about the lack of legal representation and I would just say to sum up that there were - where an accused was properly represented and defended, there were already huge problems, but where you had a case where people charged with political offences appeared in front of the Magistrate's Court without legal representation, then as far as I'm concerned they were goners.
I was involved tangentially in such a case and that was representing a sixteen year old who had been convicted in the Magistrate's Court here in Johannesburg on account of terrorism which at that stage carried a minimum sentence, an obligatory sentence of five years and it was quite astonishing to read the record and find that he had appeared in the Magistrate's Court, absolutely unrepresented, his mother had stood by him, I'm sure she had not the faintest idea of what - of the import of the legal proceedings and he was convicted. He was eventually - in review proceedings he was - the conviction was set aside and he was freed, but not after he spent two or three years on Robben Island. I might add also that those were not automatic review proceedings where the courts are supposed to scrutinise the sentences of imprisonment above a certain limit where the accused was unrepresented, but this in review proceedings which had to be launched on his behalf, civil proceedings.
Dealing now with the assault and torture of accused persons. On many occasions in these cases we would present evidence of the accused having been assaulted and tortured by the police. Generally the sole purpose of this evidence was to create a doubt with regard to the admissibility of statements or confessions taken by the police from such accused after their arrest. I say this was the sole purpose, because no magistrate in front of whom I ever appeared, to the best of my recollection, ever expressed any concern or initiated any separate enquiry into these allegations of torture or assault as the case may be. The magistrates were in fact extremely sceptical of these allegations when they were made by the accused either in remand proceedings or on trial. These allegations were always denied by the police and since the prisoners were invariably held at least for a period incommunicado and certainly without ready access to doctors or lawyers, the physical proof of these allegations had often long since evaporated by the time that they were tried in court.
I recall one particular which was remarkable in my experience. There were about six or seven accused and for some reason, I can't remember how it came about, they had been seen by a district surgeon who was obviously a man of some conscience and he had produced an official report on each one of them, recording their bruises, contusions, what have you swellings on all of these youths, and he was eventually called to testify in the court and I recall how -with what hostility his evidence was greeted by the prosecutor and semi-indifference by the magistrate.
To my mind there was an understanding at the Magistrate's Court level between many prosecutors and magistrates that if some violence was used against persons accused of political quote unquote "anti-social acts", then they as court officials would be prepared to turn a blind eye thereto.
I would also like to deal with the role of the prosecuting authorities and I've observed that in these cases I found a zealous over-identification by prosecutors with the state or the police case and this attitude I believe led to many irregularities, most of which will probably never come to light, because of the privileged nature of the communication between the police, the prosecutors and their witnesses.
There are however two abuses which I would wish to record. The first was the practice of arranging for political trials to be held in centres geographically distant if not far flung from where they would normally take place. So, for example, in Cape Town cases would routinely be transferred to be heard in Malmesbury court, some 100 kilometres distance or Hermanus court. Well, Malmesbury is about 50 kilometres, Hermanus is about a 100 kilometres distance. These trials were often long running and these arrangements created great expense and inconvenience, if not hardship, for family members of the accused who wished to attend the trial and also for the defence team.
The only reason ever cited by the authority for these arrangements was security and I might say that this was a decision which was taken by the prosecutorial authorities and as defence lawyers there was no application where one could join issue with this.
I believe however, that the primary motivation for these decisions was to deter the public, in particular supporters and friends of the accused from attending such trials in order to insure inter alia that state witnesses, often accomplices, did not testify in front of a gallery supportive of the accused. This ploy on the part of the prosecuting authorities was very prejudicial to the accused since potential witnesses who might have challenged the evidence of state witnesses were to a large extent denied the opportunity of hearing such evidence.
An even more cynical variation of this occurred in a series of trials which took place, some six or seven arson trials in the Malmesbury Magistrate's Court where to our initial bewilderment a sixteen year old youth was added as the last accused in each case. At the end of each - then at the beginning of each case the state prosecutor would ask that the court be cleared for the duration of the state evidence, because this was a minor. At the end of each state case, this accused was acquitted without his name so much as having been mentioned in evidence and I must say it took a bit of time for the penny to drop, but when it eventually did I realised that his sole purpose was to be put in there to close up the court during the state case.
When I confronted this prosecutor with this, his bluster as far as I'm concerned only acted to confirm my suspicions in this regard.
Although I did encounter exceptions in my experience - generally my experience was that most, many prosecutors saw it as their bounden duty to secure convictions in political cases and they threw away whatever objectivity they might have had as soon as they took on the case.
There is also the question of visits by magistrates to prisoners and detainees. I must say all I can say in this regard, in regard to magistrates is that I'm unaware that there was any regular visiting by magistrates or if there was that it ever produced any tangible results.
I've already discussed the question of legal representation of the accused in political trials, so I'll leave that. One comment that I would like to make in this regard is that I feel that insufficient credit has been given to those organisations which laboured during the - at least in my time during the 1970's and 1980's to raise funds and to co-ordinate legal representation of accused persons and the funding thereof. Here I include bodies such as the South African Council of Churches and one of its projects, the Dependence Conference. As far as I'm aware the organised legal profession in the form of the various law societies or the Association of Law Societies made no contribution in this regard despite having, as I understand it, substantial discretionary funds on hand.
I would also like to deal with the question of sentencing policy. As far as this is concerned it's my view that it was clearly skewed or distorted with the view to severely punishing any criminal "manifestations" of political decent. Priscilla Jana has already mentioned the notorious case of the person who was sentenced to imprisonment for having Viva Mandela or Free Mandela scratched onto his coffee mug. In my experience this became manifest in public violence cases where youthful offenders even committing a first offence, ran a grave risk of being sentenced to a term of imprisonment. This was even when there was no physical injury or damage to property having been cause arising out of the incident.
It was apparent that the sentencing policy as regards public violence was rendered much harsher by virtue of the presence of political motives. It was notorious in Cape Town from the basis of what we believed to be carefully schooled police evidence an accused was found to have given a Black power salute at which - and the evidence would always be that the crowd surged or responded at this point -that person would be found guilty of public violence and stand every chance of being imprisoned.
It is furthermore in my general impression that the Supreme Court, although it did in many instances mitigate the harshness of some of these sentences, was also swept along by the prevailing sentencing policy and imposed sentences of considerable severity in circumstances where, in my view at least, the element that the accused was acting with a political motive in the circumstances of our country, should have acted as a mitigating factor and not the contrary.
This sentencing policy also extended to other common law crimes involving a political motivation. One example I remember particularly was a student whom I represented who was found guilty of malicious injury to property. He drew some slogan on a wall. In fact it was touch-and-go whether he was initially detained under security legislation. I think the police eventually decided that this didn't warrant a charge under the security legislation. He was charged with malicious injury to property. He pleaded guilty and was found guilty and he was sentenced to a very, very substantial fine. Quite ridiculous given the fact that he was a student and had no financial resources. No objective person considering the sentence could have failed to infer that it's harshness was motivated by the fact that the slogan was of a political nature.
In summary, in my view, there's no doubt that the make-up of the magistracy and to a lesser extent the judiciary was such that political offences, be they statutory or common law crimes, often received a disproportionately harsh sentence. In that sense the criminal justice system failed to remain objective and became an extension of the state in seeking to crush political descent.
I talk also about the role of the Attorney General and the police and what I have observed - what I observed was that in many cases people were subjected to assaults by members of the police. Many of these with fatal consequences. In the early years of my practice I used to advise clients to go and lay criminal charges in these cases. I can think of no instance when a prosecution ever followed. On occasions we would write to the Attorney General querying these failures to prosecute and my understanding was that that decision lay always with the Attorney General in the final instance and I can never - I can on no occasion recall the Attorney General ever reversing any such decision and a request for reasons was always refused.
I note with some irony that following the proceedings of the Truth and Reconciliation Commission in Cape Town some months ago a member of the police who shot someone whose family I represented in Worcester years ago has now been charged with capable homicide. Nothing has changed in that case. We wrote to the Attorney General ten years ago or however long it was and there was no prosecution. Now there's a prosecution. The overall impression which I gained was that a prosecution of the police would only follow if the police in question had admitted to the unlawful assault or if a cast-iron case had been build up.
Since the police always denied the charges and since the case was invariably investigated by policemen who were sympathetic to the accused, no such case was ever made. After going through this charade for several years, I no longer - I ceased advising my clients to lay criminal charges.
My experience was also that although the criminal charge would come to nothing if and when a civil claim was brought later, those statements which the client made in the criminal case and which didn't lead to a prosecution, would be produced, hauled out and they would be used as cross-examination material against the client.
This is the question - a matter about which I feel quite strongly and with an eye to the future, I believe that where allegations are made against the police the investigation should be carried out by a unit which is independent of the police and if I may put it plainly, enjoys a reputation for greater probity and impartiality than the ordinary investigation units of the police.
I deal with the question very briefly of judicial inquests. One doesn't want to commit the plain error of saying that all magistrates were bad. I acted for a detainee who was found hanged in his cell. We had an inquest in front of a Cape Town Magistrate. He did everything he could to arrive at the truth, but where you have a situation where the detainee is dead your only witnesses are the police your chances of arriving at the truth no matter how scrupulous you are, are very limited as the Biko inquest has - the Truth and Reconciliation proceedings in regard to the Biko death have recently illustrated.
I would also like to address briefly the question of the role of the Law Society in these matters. Although I'm no longer a practising attorney the experiences that I'm talking about took place while I was practising as such, therefore I'll restrict my comments to the Law Societies.
I must say I was never particularly close to the Law Society or on its committees or what have you. My overall impression - but I read its reports and followed its pronouncements in the press and so on, my overall impression of the role of the Law Society in relation to human rights matters was that it was self-handicapped by seeing itself as a representative of a wide range of attorneys with differing views on the matters particularly in "sensitive areas" such as the rule of the law and the administration of justice in an apartheid society. That being so the Law Society appeared reluctant to issue statements or initiate action which would be seen by a sizeable number of its members or even a majority as being of a political or anti-governmental nature, instead the Law Society seemed to be more comfortable with the role of representing its members on bread and butter issues, acting almost as a trade union with the economic interest of its members were its paramount concern. In this regard I believe that the Law Society failed to exercise a leadership role in encouraging its members to critically examine the distortions in the system of justice and the ways in which it and they could play a greater role in combating these distortions and inequities.
But I must say that in my dealings with the Cape Law Society I found them sympathetic to the establishment of the Legal Resources Centre, when I was involved there, and cautiously supportive thereof. I must also say that that didn't necessarily translate into substantial financial assistance and I also at times in later years felt that the Law Society, given that background, were sometimes too quick to claim credit for the existence of the Law Society. But perhaps that's a slightly negative thought on my part.
I am aware that the Law Society made some public statements expressing concern about aspects of the administration of justice through the years, but overall I don't believe that enough was done.
The excuse can be raised by lawyers in South Africa that the will of Parliament was paramount then and there was no constitution which provided for a testing power on the part of the courts etc. I don't - while there's substance in that contention of course, I don't believe that that in any way excuses the Legal profession for its participation or its relative passivity in the face of the construction and enforcement of the apartheid state which reached its apex in the period from 1948 to 1991.
We as lawyers were supposed to be the custodians of the centuries old common law, which was theoretically colour-blind and non-discriminatory and the Legal profession should have done a great deal more to protest and work against the distorted system of ...(tape ends)
....using their training and experience. Such people were, however, a relatively small minority whose views or actions often made them unpopular with their colleagues and in some cases made them actively reviled.
To my mind the primary lesson of our recent past is that the legal system was unable to maintain sufficient independence from the Government of the day with its racist ideology and policies. It became instead to a large extend either a tool of the state in enforcing apartheid policy or simply fulfilled the limited traditional role of maintaining and regulating personal and commercial relations between parties.
As far as the ideals of our future legal system are concerned, the lessons I think of our recent past must be that we must never again place unbridled power in the hands of the legislature and lawyers must be vigilant to defend the values which have been enshrined in our new constitution and our new Bill of Rights, even when doing so may entail a sacrifice in certain other areas.
As far as legal education is concerned, I think that should be framed in such a manner that the inherent values and ideals of our legal system are inculcated in lawyers at an early stage of their training so that lawyers are not produced who are simply technicians in particular areas of the law.
I believe our system must aspire to one where the Bench is wholly independent from the Government. The Supreme Court has always enjoyed a considerable measure of independence, but the same cannot be said of the magistrate's profession, comprising as it did and does, people in the public service, given that such employees were directly employed by the Department of Justice it was inevitable that with exceptions they would lack the independence and impartiality which are the attributes of a judiciary which can command respect. I believe there are moves afoot to separate the magistrate's profession from the state and I hope that these don't simply remain a distant ideal.
I think I've probably - one final point I'd like to make is that I would also like to see the Legal profession as an organised body should create and support opportunities and mechanisms for lawyers to do work which promotes and protects human rights and generally afford this work the support which it deserves.
I have probably said everything I have to say. Thank you.
MS SOOKA: Thank you, Mr Bozalek. Hanif?
MR VALLY: Thank you, Madam Chair. Mr Bozalek, you mention that in your experience with working with magistrates you discovered some of them were members of the Broederbond. Did your experience regarding Broederbond membership extend to the Bar when you worked with judges? Did you find any judges who were members of the Broederbond?
MR BOZALEK: Well, all I know, Mr Vally is what I read in the press and I understand there was an incident when a judge appeared before the JSC some time ago and it turned out that he had been a member of the Broederbond, but had resigned before he ascended to the Bench, but beyond that I have no knowledge.
MR VALLY: Is your experiences of magistrates that there was complicity between magistrates and prosecutors and police in especially political matters?
MR BOZALEK: Well, you know, in the nature of things one would never find, one would seldom find direct complicity between magistrates and the police. If it was taking place it was obviously not going to take place in front of your eyes.
Priscilla Jana mentioned an incident where she found the magistrate talking to the police, but the conclusion which I have reached are really by way of inferential reasoning when you run a case and you see the evidence and you see which way the magistrate goes then you can draw a conclusion perhaps.
Certainly as far as the prosecutors and the police were concerned, in the nature of things they worked hand in glove and I think unfortunately prosecutors as I've said, lost their objectivity in that manner. It became a score board thing. They could get a conviction in a political trial then that was just number one prize.
MR VALLY: We are under a time pressure. Thank you, that's all from me.
MR BOZALEK: Thank you.
MS SOOKA: Richard?
MR LYSTER: Mr Bozalek, thank you very much for that very useful, comprehensive and articulate summary of your experiences as a defence practitioner during the 1980's in the Magistrate's Court. I think that your remarks and your experiences will echo the experiences of many people in this room and several on this panel who also practised law in the Magistrate's Court during that period.
I would just like to add by way of anecdote that during 1986 in Durban at a time when there was an increase in the number of political trials, public violence trials, a circular was sent down from the Department of Justice in Pretoria directed at Magistrates and advising them that in cases where the outcome of a case depended on conflicting evidence between police witnesses and young Black offenders, the circular directed Magistrates wherever possible to accept the evidence of the police. I think this goes some way to bearing out what your experiences have been.
So thank you very much again for your contribution (intervention).
MR BOZALEK: Thank you. If I may just briefly respond to that. In fact, I think it was also in Durban where it was found that at around the same time the magistrates and I think also the prosecutors were being called into a room and were shown videos of atrocities, namely people who had been necklaced, people who had been the victim of violence and so on. As I understand the motivation was to sort of fire up the prosecutors and the magistrates and that was - that came to the attention of some higher authorities or it was publicised and the practice was stopped.
MS SOOKA: I think it was raised in one of the submissions that was presented, I think by the Bar Council.
MR POTGIETER: Mr Bozalek, just while you're mentioning that, I mean, at the same time, about middle 80's in the CPD for example, in political matters the judiciary, in fact the late Mr Justice Baker, Peter Baker, issued certain guidelines in regard to sentencing which set out or somehow confirmed quite heavy sentences under public violence, things like school kids 12 months direct imprisonment that sort of stuff that we had, so it appears as if the magistracy did what they did, but there were guidelines that were coming from up higher in that particular era.
MR BOZALEK: I'm unaware of that case. I think there was a bit of a tug and war between judges of one persuasion and judges of another persuasion.
MS SOOKA: Thank you very much. Wynand?
MR MALAN: Mr Bozalek, I have two questions. The one relates to really your paragraph one with the sub-paragraphs which is the question really of political bias representivity. The question in my mind is, does that not follow naturally where practitioners come from a part of the society, wielding the power and they would reflect that bias in wherever they would find themselves whether in profession or in church, so the one impact on the other and one - it would be more than what one could expect to expect of a person to have a different world view in a profession or in his religion than he would have in his politics. So the one - they are in cahoots by nature. They're one and the same thing.
Now against that background the question on lessons that you say we've learnt and you recommend legal education the values and ideals and distance from the executive and a number of issues. My question there is whether that is structurally really different? Did we not have an apartheid constitution and were they not in so to speak trained in apartheid thinking, now we have a constitution which is a human rights based constitution with the Bill of Rights enshrined in it, would it not follow naturally that that would become the practice of the day and in order to get the representivity in the Bar and the Bench and Magistrates and this has been said earlier, but should there not be even a more vigorous and rigorous drive to get representivity reflected at the level of practitioners at the Bench referring really to what the Minister said yesterday? I'm not sure whether you were here.
MR BOZALEK: Well, I've mentioned it in my submission. You know I'm clearly of the view that there has to be a far more representative magistracy, judiciary and so on. I don't think it follows necessarily from that that everything is then hunky-dory. The fact that one has a Bill of Rights doesn't necessarily mean it's panacea for all evil.
Just coming back to what you said. I might perhaps take a more idealistic view of human nature than you do, with respect.
MR MALAN: No offence.
MR BOZALEK: Certainly a lot of the problems relate to the fact that there was this structural imbalance. It was a White minority which was sitting in judgement in its own interest so to speak, but experience has shown that there were people who came from the same groups and so on who were able to rise above those sort of considerations and give judgements which were more impartial, more courageous and so on and I think that, you know, human nature being what it is there's always a reason why one can slip into retrogressive ways. So I think that one needs to have a widespread human rights culture and training and so on, because I think even in the most ideal structures abuses can come up and can become the accepted wisdom and so on.
So, yes, it is structural to a large extent, but you know, I think that one has to be vigilant and prepared to try and create and nurture these values. I don't think they come automatically. There are different temptations.
MR MALAN: Thank you.
MS SOOKA: Thank you. Thank you, Mr Bozalek for the submission. It was very useful for us.
MR BOZALEK: Thank you, that's my pleasure.
MS SOOKA: Thank you. I'm going to apologise for a slight change in the programme. We're going to bring Prof McQuoid Mason forward now, because he has to catch a plane later. So, if you'll just indulge me. I know I'm putting the Legal Resources Centre and NALSA and Tony Richards slightly lower down today on the programme, but Prof McQuoid Mason has to actually leave, so if you'll just bear with me.
Thank you. Prof Mcquoid Mason, we'd like to welcome you. Is that ... (intervention).
PROF MASON: Thank you very much, Madam Chair.
MS SOOKA: Are you going to be presenting alone or ... (intervention).
PROF MASON: I'm going to be presenting and my colleague, vice-president of the Society, Cheryl Loots, will maybe chip in with questions and answers afterwards.
MS SOOKA: Thank you, I am going to - before you begin, I'm going to ask Mr Ntsebeza just to ask you to take the oath, please.
MR NTSEBEZA: Now, can you place on record your full names, both of you?
PROF MASON: David Jan McQuoid Mason.
MS LOOTS: Cheryl Eileen Loots.
DAVID JAN MCQUOID MASON: (Duly sworn in, states).
CHERYL EILEEN LOOTS: (Duly sworn in, states).
MS SOOKA: Thank you. You've been very patient. We've taken a little bit of time today and you've been here yesterday as well. You can proceed.
PROF MASON: Right. Thank you very much, Madam Chair. You've set me quite a good challenge because I've got to wear two hats and try and do two presentations within that 30 minutes limitation, but I'll do my best.
The first one is in my capacity, although it's in my personal capacity and Cheryl Loots' personal capacities, I being president of the Society of University Teachers of Law and Cheryl the vice-president, we think much of what we're going to say would reflect the views, but because of the timing during the short vacation we weren't able to get all our Council members to approve this, but what we have done is we invited the Universities, our constituent Universities to make their own submissions and we managed to get 13 out of the 21 Universities responded.
To assist the Commission, what I've done is taken out extracts attached to the presentation of the Society, incorporated them in our main document and attached to that are all the individual representations from the different Universities. We received a late one from Rand Afrikaans University yesterday. That also will be appendaged for you. What we did was, we asked our members to consider two factors that may or may not be of interest to the Commission. The first one was to establish whether there had been a failure by academics to respond appropriately to what went on in South Africa during the time that you're considering.
The second one was to acknowledge and pay tribute to those legal academics who did speak out. The Society feels that it can respond more to the first part. The second part we left more to the Universities and you'll see them mentioned in the Universities' submissions.
The first point I'd like to make then is deal with the question of the response of legal academics to the injustices of the apartheid system. I've divided this into two. The first one is giving you some of the perceived reasons on talking to colleagues why academics didn't respond. After that I want to give you some examples of inaction by legal academics and after that some examples of action by them.
Dealing with the reasons for not responding and this is something that we're all in the sort of introspective mood at the moment and I came up with a number here in consultation. First was fear of official retribution at some Universities. Others were fear of contravening the law. Others was a feeling of powerless - what can I do, I'm a mere academic. Others that law teachers shouldn't become involved in politics. Others saying they didn't even
know what was going on, because the newspapers were censoring themselves and the SABC was also being censored. Others who didn't want to believe that the system was unjust or corrupt or immoral and some, even though they did believe that it was wrong, were afraid of their colleagues for perhaps harming their professional careers.
Those were some of the pressures that we think were operating, but as it has already been mentioned previously some of these fears were justified. We all know what happened to Barend van Niekerk. He was prosecuted twice and sued once for deformation. Raymond Suttner you all know was imprisoned a number of times. So there were these sort of pressures on academics I guess like a lot of other South Africans who in many respects were sort of prisoners of their environment, if you like, but they had these fears.
At the same time there was still, I believe, a wide variety of strategies that could have been used by academics and I am going to talk about some of those later on and particularly when I do the University of Natal presentation as well.
There were those legal academics who did speak out and you've heard already about Prof Matthews and Prof Dugard and of course Prof Van Niekerk in particular in the early years.
A lot of academics felt safer in their ivory towers than getting down in walking in the barricades if you like. In the mass action a lot of them didn't feel they were suited to doing that type of thing. Really until the end of the 1980's and until FW's speech academics sort of kept a fairly low profile in many respects regarding human rights.
After the 2nd of February in 1990 there was almost a rush by academics to start getting involved in human rights, writing and talking about them. The same incidentally seems to have applied to judges and everybody else when you start looking at judgments after 1990.
Now to deal with some examples of inaction by academics. During most of the 60's the 70's and the 80's with few exceptions the vast majority of academic lawyers and you heard this before I think from Carol Lewis as well, had concentrated on private law, rather like the Romans did under the most oppressive time in Roman times, the Roman lawyers focused on private law. It was safe. Only a few ventured into the field of public law and only a few law schools were prepared to stand up. A very few as law schools to say anything. It was left to individuals and certainly there was a failure by our organisation right up until the 1980's, I'll come back to it later when we tell you about some of the things we think we were successful at, but certainly to deal with even the arrest and detention or harassment of legal academics apart from Prof Van Niekerk back in 1970 when the Council did issue a statement. Up until then when Raymond Suttner at our University was arrested and to our shame and I'll come back to this in the second presentation, our law school did not protest as a law school about it. Some of the junior colleagues did, but I'll explain that to you later.
Many law schools instead of trying to educate the legal profession about the injustices and the corruption of the administration of justice, very often took a politically neutral stance. This was regarded as getting involved in politics and so they would rather just keep quiet about it.
There was a failure by many of them to establish support mechanisms when students were expelled or detained or when staff members were. Very often very few law schools would mount campaigns for their release and so on or assist them materially while in detention.
There was a failure by some law schools in particularly of the historically disadvantaged law schools, if you look at them in the 60's and 70's and the culture that prevailed there, to support students or staff who were threatened with expulsion for being involved say in political action at the universities.
In some instances some of the law schools and universities actually collaborated with the authorities to get rid of troublesome students as well.
Certainly there was a failure by the majority of law schools to try and systematically criticise or attempt to educate law enforcement authorities, that is the police and so on, regarding their duties and obligations and when they engaged in gross violations.
It was perhaps an irony of the period as well, although understandable that the so-called open universities and I'd include ourselves, University of Natal and Rhodes, that none of us offered anything like a B-Juris to train civil servants. So the English speaking Universities opted out of training any civil service using the B-Juris as was done in the Afrikaans Universities and the other historically Black Universities.
Most law schools didn't challenge the judicial tendencies to uncritically implement unjust laws for taking a blatantly pro-executive stance. Again it was done by individuals and we heard about that yesterday.
Certainly most of the law schools didn't try and do anything about devising mechanisms to try and overcome the prevention of Black students coming onto so-called White Universities, the permit system. Much later I'll talk about that. Our university devised a strategy we were able to do that, but most universities just accepted the permit system and went along with it.
Except in the case towards the end of the 1980's, we relied essentially on individual criticisms of the system. Most law schools tried to retain consensus. They had a reflection of political ideologies operating and nobody would want to try and venture to get a law school as a whole to try and do anything, after F W de Klerk's speech it was a lot easier of course to start doing those things.
Very often the historically White Universities, until the late 1980's, didn't do much to try and ensure that their staff and student bodies represented the broader South African community and when they did do that they didn't provide proper support programmes to try and assist law students who had come as a result of disadvantaged educational backgrounds.
Of the 13 representations we only have three from historically Black Universities and I think I need to say something about them, because none of those three say anything about what was wrong with the Black historically Universities. One of them says that their records speaks for itself. Another one says that you can read his CV and there's another one that says something else - the students were always happy in the classroom or something. Those are the three submissions we've got and you've got the details.
But I think I should say something just from my own experience having been a Dean of a law school for ten years about some of the things. I see many colleagues here who have been to historically disadvantaged universities and you guys can slip me notes if I've got it wrong and I'll try and deal with it or if you want to add anything.
Let me just say this about them. Firstly, when they were funded - when they were founded they were staffed mainly from academics from the Afrikaans Universities. Very often for young Afrikaans academics it was a stepping stone.
Many of them had generous staffing incentives. Cheap subsidised housing and so on to attract staff there and so the result in many instances, even though they had meagre resources most of the resources went into what was given to some of the staff in those early years and not to what went into students' facilities.
The library resources were neglected and that happened up to fairly recently even when the fidelity fund arranged an amount of R10 000,00 originally that could go for books, I discovered to my horror a neighbouring historically Black University Dean hadn't known about the fund being existent for about five years. So he deprived his particular faculty of books for five years by not actually dealing with that situation.
Of course what happened in the historically Black Universities in the 60's and 70's and so on - you had the students who were opposed to apartheid and trying to struggle for liberation and you had a very often repressive autocratic academic community there trying to keep the students in check and very often many of them with connections through to the Government.
The approach in those - the teaching methods tend to be very didactic and I heard students often telling us that lecturers would dictate notes. Sometimes they'd use UNISA notes and that students weren't even allowed to ask questions in some classrooms. So it was a very different sort of culture that prevailed there.
Where you got the so-called liberal - I'll put it in a small "l" academic was in those sort of Universities would find themselves often ostracised for fraternising with the students. One colleague told me that he had his notes on constitutional law, he was hauled before the academic registrar at one university and was told that it was full of printing errors and they weren't going to let him use those notes. He’d used them before, but when he left he noticed that the new lecturer who took over his course was told to de-politicise the course. He had made it too political and that was one of the reasons that happened.
The other problem that happened at some of these Universities was that the academic faculty would be running around the courts defending people all day and the students would have to go to evening or late afternoon lectures. So there were no lecturers available for students to consult with as well.
Students were expelled from these institutions for asserting their rights. I know in 1987 I took in about 50 students I think from what's now the University of the North West, because there was all sorts of things happening there. These students were all expelled. We didn't worry about them getting good conduct certificates, we took these guys in as students as well.
Staff were expelled for assisting students. Again the University of the North West, the legal aid director was expelled after trying to assist the students in drawing up a petition to overrule Mangope's closure of the University there when it should have been closed by the University Council. Those are just some of things. The others may or may not resonate that some of you guys went through, but I thought I would just mention that.
Alright. A few examples of action by legal academics and the society particularly, I've mentioned in 1970 when Barend van Niekerk was prosecuted the society council did issue a notice which was published in a couple of the law journals condemning that particularly as they were concerned about the impact of Van Niekerk's article called Hanged by the neck would have on academic research.
It's interesting although Prof Van Niekerk was prosecuted in that case, the effect of that case and the publicity was for some strange reason there was a dramatic drop in the number of hangings and that says something as well about the impact articles can have on the judiciary.
If you look at that and you take out a graph and see, you'll see that the impact of number of hangings actually dropped after Barend's prosecution.
Okay. Cheryl and I then went through the minutes right back to 1956 of the Society to see what all these other creative things we were doing over the years. We regret to say that between 1970 and 1986 we couldn't find much at all and we must take responsibility partly, because we are members - older member than Cheryl of the organisation.
In 1986 though we managed to get one resolution through calling for an independent judiciary to protect the rights of all South African citizens.
1987 was a good year for us. It might be coincidental that the meeting was in Durban, but we did get a whole lot of resolutions there. We called for removing discrimination against people, admission of students, residences. We said that there was a duty on our member universities to deal with inequality in academic education. We resolved to set up a trust. We called on the Government to stop interfering with research. We asked them to repeal all restrictions inhibiting academic freedom. We asked them to release Raymond Suttner. We expressed concern about the undermining of the functions of Parliament by the executive and the emasculation of the judicial function of the courts and the criminalisation of sort of normal civil rights activity. We asked for establishment of a non-racial democratic South Africa. All the usual things that one would expect we should have been doing over the years we finally got round to doing in 1987.
1989, when we met again in Cape Town, we then asked for a Commission of Inquiry into the death penalty and a moratorium. We weren't necessarily successful within all our calls but hopefully we had some sort of influence.
So I think just to conclude the session on the Society, I think the Society started off, in the 1970's anyway, being reasonably vocal. Then I think because of our largely conservative and largely White constituency during up until the late 1980's attempts were made to maintain consensus. There was no critical activity by the society at all.
The mid-1980's and I think partly because we were getting more and more members from the historically Black Universities and historically - and Black members as well we became more outspoken.
Certainly to the future now, what the Society has done - the Society has been driving the new LLB - four year LLB process to try and - things that we came up with was to try and make our law curricula more responsible to the diversity in our society; to try and teach law more in context; try and introduce more skills training, things like clinical legal education. You'll see there's going to be a presentation from some clinical students a little later to you, but those are the sort of initiatives we're doing.
I think at the end it's only proper that Cheryl and I in our capacities, personal capacities, but wearing our hats I guess as president and vice-president of SATAL and as members of long standing, we ourselves owe an apology I think to members of the South African community who may well have suffered as a result of the Society while we were there and not standing up. We probably didn't do enough during the silent years to take a more pro-active stand and so we would tender our apology to South Africa through the Commission.
Thank you. That's part one. I don't know whether you want to do questions on this part and then do part two?
MS SOOKA: No, I think it would perhaps be best if you continue through and then we'll do ... (intervention).
PROF MASON: Okay. Well, Cheryl, you're going to answer questions later?
MS LOOTS: Yes.
PROF MASON: Alright. The second part is just a presentation from the University of Natal Durban. Again we weren't able to consult all our members, but the management committee has agreed to this presentation and again we've dealt with it in the same way.
I'm going to list the failures of our faculty first and then talk about some of the successes. I'm also going to talk about some of the academics who made a contribution. I'm going to try - I'm going to also mention some of the academics who were not the high flyers who made a contribution as well.
First of all then examples of failures. Certainly at our university during the 1960's and 70's, apart from Professors Van Niekerk and Matthews the majority of legal academics did very much - did very little to get involved in any active public criticism of the apartheid state. They remained apolitical, they didn't speak out openly. They didn't even support their activist colleagues on many occasions.
The mid-1970's I think the sort of low point of our faculty in a way was when Raymond Suttner was arrested in about 1975 and because he had involved a student in his underground activity the executive of our law school felt that that was a major breach of his academic function.
So as a law school they weren't prepared for the law school to release a notice condemning ...(tape ends)
PROF MASON: ... students right up until (indistinct) submission made for you as late as 1968 in our law school the majority of LLB-students were Black.
Now, that was because a lot of them - if you had been previously registered at the University you were able to continue your studies as well.
But by mid-1975 it had dropped right down to less than four percent of the class and I'll come back to it later as to how we dealt with that.
We certainly had a problem also that our staff was not representative, there was nothing to stop them being representative, but our staff was not representative of the South African majority and population either.
Some successes then. Apart from Professors Matthews and Van Niekerk, I'll tell you a little bit about later, but we did have academics speaking out, so much so, apparently and I can't think for the life of me why, in Pretoria we were known as the Kremlin at one stage. I don't know why we were. Maybe it was Ray's underground activity, but that's -some Government circles referred to us as that.
In 1973 one thing we did do was organise a legal aid conference where unfortunately the Legal Aid Board declined to come, but the most important thing that came out of that legal aid conference, was the catalyst or law clinics. At that time UCT had a student run clinic and WITS had started one the year before, largely I think influence of Arthur Chaskalson. I started one the week after the conference in my office. The security police got very interested, because Ray was doing things at the same time, but eventually that started off. We had few hiccups as you would expect. The Law Society in Natal wasn't too sure what this was about, but we got them to agree to come on our management committee. We got them to come and supervise on Saturday mornings down at the Garment Workers Union and I remember the president having a bit of a shock when he saw workers rights up there and saying, what's this? This is communism. What is this communist stuff doing up here on the walls and so forth, but the Law Society didn't stand in our way and we were able to start running clinics.
In the 1970's, 1978 to be exact, we started introducing courses which could then be used to circumvent the permit system, because if a student could show that a course was not available at a historically Black university, they got permission to come to us. So by doing that legal aid was one of the courses that law students helped to motivate. We did that one. No-one else offered legal aid. It wasn't available anywhere else. So we started being able to - and that worked reasonably well from 3,9 in 1975 we're up to 20,6 Black students by 1980; that's five years later even though the Act was still in force. By '86 we're up to 40 percent. Today we're sitting at about 82 percent or something.
We also in 1984 revamped our law curricula because we started realising what we're teaching was pretty irrelevant to a lot of what was going on in South African society. We actually introduced a course, Race and the Law, to try and focus specifically on how race was impacting on the legal system and so on. So we would count that as a success.
In '86 we introduced the street law programme which again, I would count as a success. I just want to share one - there's been a lot of talk about how we can educate - we need to educate the citizens and the judges and that for me was a very valuable experience. Even though it was the height of the emergency, we got Judge Wilson to come out to the school in KwaMashu and the kids wanted to know about the death penalty, so they asked him how many death penalties have you imposed and how do you feel about doing the death penalty? Now, for a judge to be accountable to a bunch of school children was for him a very interesting experience and a very good way of exposing the kids. Judges are human beings, judges can see that people are also interested in what their doing. That's maybe the sort of thing that we could continue doing.
The other thing we would do this - I know that Justice Pius Langa won't mind and Bugu Shabalala won't mind, but we trained some of the early Black judges as well. One of the things we wanted to do was to expose the school kids to the fact that you can have Black judges. This is back in 1986, '87. So what we used to do we ran mock trials. We'd get sitting judges as well, Judge MaCall and others, Wilson sat for us, but we'd get senior Black advocates to sit as judges and so Justice Pius Langa sat for us, Justice Phosa sat for us, Lewis Skweyiya sat for us, Bugu Shabalala sat for us. So we did do some judicial training in those days as well. The thing was that the school kids saw through us, because we had a colleague, Carthy Govender, whose now Human Rights Commission, we got him to sit, the kids followed him out to the car park and said, but hang on, you're not a real judge. You're not driving a Mercedes Benz. All the other guys got into a Mercedes Benz. So we were trying to sort of conscientise the kids then and again I think it is a good way of educating the judiciary.
In '87 we established a centre for Socio-legal studies and I - it's a pity I think in a way CALS, has been left out of it, the Centre for Applied Legal Studies at Wits has done a tremendous amount and did a tremendous amount and we are linked up with them in a labour programme.
We also in '89 did a community law centre to try and serve rural communities and get rural communities who are some of the most disadvantaged communities in South Africa access to paralegal training.
I think what I'm going to do now is just move on. In the documentation I've given you, just some brief points on Prof Matthews and Prof Van Niekerk. I thought what I would do is just do a tiny bit of anecdotal stuff, but I've put quite a lot of stuff in here, because often people say, but what could we do as law professors and law deans. I'm not saying what I did was fantastic, but I want to show you what I could do by merely saying, I'm dean of a faculty, these are the sort of things I was able to do at the time and get away with them if you like.
The - apart from the legal aid courses I've mentioned, one of the things I did when I did a book on outline of legal aid in South African in '82, I wanted to start alerting the judges so what I did was I got Judge Milne to come along in '83 to open a legal aid conference and to do that he had to read the book and that book had lots of statistics about unrepresented accused. I've got it in a footnote there. You can see later he used that. He told me he wrote to the authorities, he wrote to everybody. He was shocked. He didn't realise hundreds of thousands of guys - he'd never appreciated those guys were all going to jail without legal representation. When you're a dean you can phone up a judge very easily and say please come and open a conference or so.
The street law programme I was able to open doors with the Association of Law Societies, I'd like to compliment particularly Mr Cox who helped us get the funding for that, but because it was a dean who was interested I could get access to them, I could get access to judges to come and sit in the cases and things as well.
One thing I did in '87 which gave a chance to bring in other colleagues, we had - the reaction was always on our campus so what I decided was in '87, I'm going to set up a legal reaction unit. So we were on 24 hours notice and our object was to deal with the police and to put pressure on the police every time they did anything. I've put in a couple of incidents there. Our record was 365 students being arrested, medical students. We told them if you arrest these guys, we'll keep the magistrates up till two in the morning getting bail. We don't care, we're going to do it. They did it. We had the registrar the suitcase of money. We kept them up till two o'clock in the morning.
When they come to break up our meetings, I'd say to them, you can't move unless you give us a receipt for everything. We haven't got paper. Lend us a pen, professor. Sorry guys, go and get your own paper. You're just putting pressure on them all the time.
The fact that a law professor was prepared to stand up and do these things, the cops, for some reason the cops think you're in authority, you're an authority figure if you're a law professor and so you're able to negotiate and it's easier to negotiate and there's lots of stories we haven't got time to go into.
One of the things I used to do - there were a lot of our male White students who would say they have been called up and they don't want to go into the Army. So, I'd say, okay, we will register you for a higher degree. So I had all sorts of guys on higher degrees extending their things. We kept some guys there for six or eight years, keeping them out of the Army by registering them for degree.
There were other guys who would get called up for these three week camps and didn't want to go into the townships, so, as dean of the faculty I would write a letter to say this student is required to spend his long vacation doing research. This is part of - for his degree he's doing a research project you guys have got to do research. For some reason, because I was dean of the faculty these letters were believed very often. So, you could do those sort of things.
Also just getting involved in marches and all the usual stuff. It makes a difference sometimes when there are senior academics present as well. It's not just always the foot soldiers who have to do it. You can assist them.
You guys have mentioned this thing about the chief - the magistrates and those videos. What happened there was one of my colleagues was attending a braaivleis with a colleague who was prosecuting. She told her the story. The colleague told me the story. I phoned the newspapers and told them the story and said, you tell the story. I will comment as a law professor and then we can get the ball rolling and we did it. So we blew the whole story and it hit the front page. As you know the Milne Commission was set up, but if a law professor phones a newspaper and says here's an interesting story, the newspapers tend to listen and they can come back to you for comment again.
Another occasion, in '89 it was, after NADEL I wanted to try and bring the Association of the Natal Law Society and the Society of Advocates together with NADEL and BLA to condemn a hunger strike. It was very fortuitous because there were a visiting overseas delegation from a New York Bar or one of these overseas guys were coming to see me, they were in my office and I thought I'd better alert the Law Society, they're going to be helluva of an embarrassed because these guys are going to be here, BLA is going to be down there making a statement, LHR is going to be making a statement, what about you guys. So I phoned the Society of Advocates and said, I think it was Malcom actually, he's not here, he might remember; wouldn't you guys like to make a statement? It's going to look a bit bad with all these foreign lawyers in the country if you guys don't say anything. Once they agreed I phoned the Natal Law Society and said listen the advocates are going to make a statement, don't you guys want to make one? So we had them down there at a meeting; NADEL, BLA, LHR everybody condemning plus the Law Societies condemning it. Again, if you're dean of a law school, it's easier to open those doors and do those sort of things.
I've listed a whole lot of other things about warning the medical profession that if they do this sort of stuff they were doing with collaborating with security cops about providing detainees, they were in for trouble.
Just to say; not everybody's supposed to be part of - you don't have to be in the barricades as a law dean, but sometimes it's helped. If I can just finish off with one last one. When the liberation movement guys were busy trying to negotiate with the cops to get joint patrols in the townships because of all the violence going on in KwaZulu Natal, they would always get the run around. We could never meet you, sorry the brigadier isn't available, the commissioner isn't available. If I phoned up as dean for some reason, they would give us a hearing. So I would arrive there with the guys and what have we got, tea and biscuits and everything is sort of set out again. It's much easier to do that. Then when they start calling our bluff, we say, okay, don't worry guys, we know that Didcott's on duty this weekend, we'll just phone him. No, no, hang on, professor. We go out, make a phone call, he can come back and see. So, again you can pull rank if you like. You can do things. There were things that could be done. Okay. I just wanted to share some of that with you. There were things that we could do as deans.
In the presentation I've made I've just mentioned names of a few colleagues. So again then, most of - a lot of our colleagues did not get involved and certainly the dangers I think of criticising the regime apart from the 1970's when there were prosecutions, after that I don't think academics, particularly White male academics were in that great danger.
I actually at the time, because I didn't want to go to military service, didn't have a - I'd renounced my South African citizenship to keep out of the Army and I was able to do that. So I could have been sent out of the country any time. It wasn't done to me though. I was a White male. I used to try and be good to the security cops as well though of course, because if they were there recording us, I'd say, thanks guys, you've got your video there. I want to give you a lecture for ten minutes now that I want you to take to the police colleges. What it's going to be is all the violations of our rights as citizens in the previous week and then I'm going to tell you what your powers are in terms of the emergency regulations. After that I'm going to address the meeting. That sort of stuff, you bring the cops in. So I'm sort of nice to them. They come up afterwards and say, Professor, we liked what you said, but hell, you've made us look stupid, man. You know, those sort of things we - sorry, I'm rambling a bit on anecdotes.
Okay. So at the end of the day, I don't think our university did as much as it could and again I think that we owe an apology for some of the things that we didn't do. We should have spoken out more as a law school, less as individuals and again we would apologise to any people in the South African community whom we could have done more to help.
Thank you very much.
MS SOOKA: Thank you, Professor. Ms Loots?
MS LOOTS: Thanks, Madam Chair. I would just like to add that when I joined the Society of Law Teachers in 1983, it was very much dominated by the Afrikaans law faculties and there was very much an attitude of we are an apolitical organisation don't raise anything political at meetings or anything which might be labelled political was always immediately subdued by that attitude.
That did change over the years. I became active in the Society from about 1987, which coincidentally, and it wasn't that I had anything to do with it, was the year in which as David explained some - more pro-active resolutions did start coming out of the Society, but I do think that we could have done a lot more during those years, during the late 80's, during the early 90's. We could have reached out much more than we did to our Black colleagues. It was only in 1994 that Black academics started joining the Society in considerable numbers and I would say that it's only this year when we held our congress at the University of the North that they finally felt at home in the Society and felt as though they belonged.
I think we really could have done a lot more during those years. Thank you.
MS SOOKA: Thank you very much. Professor, do you want to add anything?
PROF MASON: No, that's fine. We're ready for questions.
MS SOOKA: Hanif?
MR VALLY: Thank you, Madam Chair. Professors, I'm looking through the lengthy submissions being made by the various law faculties and having just heard Prof Loots now talking about the Society didn't want to get involved in politics, I can understand the predicament of the attorneys as the hen and chicken argument comes in. We're talking human rights and not politics and law professors also have that same misconception. It's very interesting to hear all the anecdotal stuff and I'm sure it's very true, but the question is this, and this is a quote from one of the submissions.
"The vast majority of South African law teachers made little or no attempt to prevent the gross human rights violations which were built into the legal system. To protest against them or at least to point them out to Government, the students or the community."
This is from one of the submissions. What is your response to that?
PROF MASON: I think that's perfectly true. It's a pity some of those - I know we haven't got time - some of those submissions you might want to read into the record as well, particularly from some of the Afrikaans Universities, because some of them are acts of contrition now that might be worth looking - I don't know what your mechanism is later, but I think that's true. I don't have any disagreement with that.
MR VALLY: Secondly, and this is an ongoing issue. It's a question we've already asked Prof Lewis. In terms of the constituency of your faculties, in terms of both representivity as well as hanging onto training for dear life; there isn't a kind of diversity which will make a break from the past like is required of most institutions in South Africa. What's your comment regarding that?
PROF MASON: Yes, I can't speak for all the universities. I can tell you what it was happening at our university now; that the university has an affirmative action programme and if you can't get people who are representative, you can only make contract appointments. In other words you can't have tenure. But you're quite right. Our particular university -we now have got a law school where 82 percent of the students are Black, but something like only 20 percent of the staff are Black. So it's not representative and 50 percent are women now. That would at least help us a bit, but it certainly, in terms of race, it's not nearly representative.
MR VALLY: Yes, do you want to comment?
MS LOOTS: If I can comment that Wits has long had an affirmative action policy, but it's been just the same yes. Our faculty, as far as the staff is concerned, is almost as unrepresentative as it's ever been. We’ve certainly had a lot more success with the student body and there we have over 50 percent Black. We haven't done as well as them, but certainly again I think the faculties could have been a lot more proactive than they have been.
MR VALLY: Just looking at some of the submissions being made especially by the Afrikaans Universities, you have a document here from the Potchefstroom Universiteit vir Christelike Hoër Onderwys, Potchefstroom University for Higher Christian Education and it's entitled - Luthuli for president or the profession - the Professors Rebellion of 1959 a PUK, so there clearly was some debate going on on what the level was and now the question or the issues were - was another question.
What I want to know, is how do you envisage training this next generation of law students to be critical and not fall into the trap that was so lucidly set out by the Association of Law Societies, where they can stand up for human rights and not get confused by deciding that it's political?
PROF MASON: That was one of the challenges that we had to meet during our efforts to bring into being the new four year LLB. One of the things, there were a whole lot of criticisms of the current system, the one was this whole thing of positivism and the way we're looking at dealing with that as apart from having diversity courses, which is going to make people genre sensitive and all the rest as part of the courses, but also focusing on clinical teaching in the sense of experiential learning as well. Clinical teaching involves you critically looking at everything, not just accepting this is what the law is. So, part of the idea of the new LLB is to completely transform the teaching methods. Now, that is a major challenge to us, because we've now got to retrain the teachers. So the Society is looking at mounting and we hope we'll get some assistance from justice for this with a programme to try and expose teachers to new teaching methods to cope with the new LLB.
MR VALLY: My final question is the one that we've asked other people. One of the methods which has failed thus far of checking or testing the decisions and judgments of the judges has been academic writing. Now, in addition to academic writing, do you have any suggestions of how the judiciary can interact with the common persons? Because one of the greatest fears is interacting with people who are not judges.
PROF MASON: Yes, I've mentioned that at street law example. I think we could take it further and do what they do in British Columbia where they actually used the courtrooms as a sort of venue for a seminar. If at lunch time magistrates or judges would be available, you could come and run a little seminar there, do a little introductory lecture or something and then let the judge sit there in the court room and get members of the public share ideas and things. It's a question of trying to give the judges and magistrates I think an opportunity to interface with the public. That's apart from judicial training seminars, all those sort of things. But I think there is a way of dealing with that. We should be making our courts user-friendly. Open them up, use them not as places where you're just dispensing justice and where people very often think it's injustice, but let's use them as a place people want to come to, because we can sit today and talk to judges, magistrates; try and humanise the face of the judiciary.
MR VALLY: Thanks, I'm through.
MS SOOKA: Thank you. Ilan?
MR LAX: Thanks, Chairperson. As I've been sitting listening to you and Carole Lewis earlier, something has just struck me and it may seem incredibly trite, but it seems - and it's apropros your comment about Roman law and about how Roman academics behaved or Roman lawyers behaved, would I be putting it too tritely in a sense if I was to suggest that what we seem to be lacking in legal education is a holistic view of law and the culture of human rights?
We break it up into private law and into public law, into this law and into that law. We have so many disparate little bits and pieces and pigeon holes that none of it all fits together. So the culture of human rights doesn't permeate into the whole body of teaching the law, and should we not be teaching law in a more holistic way that engenders the culture of human rights throughout?
I mean, we say the law of contract doesn't operate say in constitutional sense in a vertical way, but if we were to encourage people's perceptions of human rights it may well do, at a general level, not in terms of a strict legal sense.
PROF MASON: Yes, you're absolutely right. I think one way of dealing with that and I think the law schools are doing it, but certainly we're trying to do it and that is first of all, just at the teaching level, I mean, to try and put across knowledge it's easier to do it in compartments and then try and bring it together afterwards, but you've got to stop people thinking permanently in those compartments.
But what we're trying to do for instance is getting every single lecturer to look at his or her course and see how is the human - how has the constitution, Bill of Rights impacted on their course to start off with. That's the first thing.
The thing also that brings it altogether is when you actually deal with real people, because people don't come and hear and say this is a taught problem, this is a contract problem and they come in with their experience as well. So, the legal skills we're going to do, is clinical teaching, but also stuff like client care and counselling. When a client comes in, you've got to relate. They're the most important people. We never teach our students about clients. So, one of the things we're starting is a client-interviewing competition which we hope and we're going to now join the international client-interviewing competition, where someone comes in and you're going to be judged about how do you relate to that person as a human being as well and how do you deal with their non-legal problems, the psychological, sociological baggage they bring with them as well.
So, we need to look at people more holistically. So what we're hoping with these skills courses is to start doing this type of stuff as well. It's not simply abstract compartmentalised dry sort of legal stuff in the books.
MS SOOKA: Thank you. Thank you very much for the contribution. I think all of us were struck by the creative way in which you certainly have tried to teach law. I don't think any of us has not been exposed to the booklet on street law and I think if more of that kind of thing could actually happen you'd find that law would become more real for ordinary people on the ground.
So, we certainly have found this very useful, because I think the challenge for the legal profession is certainly going to be at university level, because that's where people are first exposed to the kind of teachings about whether you go the positivist way or find a creative way of being courageous in the way you practice law.
I think what we do want to make sure of is that people are able to speak up in the future, because we're only emerging now from the sense of things having gone wrong, but that doesn't mean that that's still not carrying on and I think it's quite interesting that more people are dying in custody now. The statistics are quite frightening. So one needs to think a lot of these things.
Thank you very much for your contribution.
I'd like to call the Legal Resources Centre now, please. Professor Majola, we'd like to welcome you to this hearing. I know you've had quite a long wait today. We have allowed other people to run over a little bit.
Before you being, I'm going to ask you to take the oath. Ntsebeza, would you like to administer?
MR NTSEBEZA: Just for the record your full names.
MR MAJOLA: I am Bongani Majola.
BONGANI MAJOLA: (Duly sworn in, states).
MR MAJOLA: Chairperson and members of the Truth and Reconciliation Commission, I would like to express gratitude to the Commission for inviting and giving this privilege to the Legal Resources Centre to appear here and to make this oral representation.
At the outset I would like to make a disclaimer to explain that the events that I'm going to deal with here took place before I joined the Legal Resources Centre, but that I have compiled the presentation based on the assistance that I've received from colleagues in the Legal Resources Centre and those that have left the organisation.
The Promotion of National Unity and Reconciliation Act 34 of 1995, requires the Truth and Reconciliation Commission to enquire into the gross violations of human rights that took place in South Africa during the period commencing on the 1st of March 1960 and ending on the 10th of May 1994.
In the process the Commission is required to establish as complete a picture as possible of the causes, nature and extent of the gross violations of human rights that took place in South Africa under apartheid.
In the pursuit of that objective the Commission has invited representations and submissions which may assist it to establish that role - what role the legal system played in the facilitation of this said gross human rights violations.
In response to that invitation the LRC has submitted previously a written submission indicating how the legal system contributed to gross violations of human rights.
The TRC has made a further request to the Legal Resources Centre to make an oral - this representation that illustrates how the state harassed and intimidated the organisation. This oral submission therefore aims at assisting the Commission to understand how the state intimidated organisations that used the legal system among others to ameliorate the harshness of the apartheid laws, policies and practices.
We would not have wished to talk about the Legal Resources Centre, that is about ourselves, but we do it because we have been requested to do so in order to assist this Commission.
I would like to emphasise that the intimidation and harassment that was experienced by the Legal Resources Centre and its staff members, is not the worst that was experienced under apartheid. We know that other organisations suffered much worse than we did.
In order to understand the harassment that was experienced by the Legal Resources Centre in the hands of the apartheid system it is necessary first to understand the constitutional system that operated in the country and served as a framework within which laws, policies and practises were crafted and executed.
Under (indistinct) principle of Parliamentary sovereignty, the South African Parliament was supreme and could pass any legislation. This meant that Parliament could pass even unjust laws and enforce them through the executive and the judiciary.
The doctrine of Parliamentary sovereignty was and still is applied in England today, but with the necessary safeguards. On the other hand the South African Parliament spared no effort in using the doctrine to pass the most unjust, repressive and irrational laws in the history in this country, if not the history of the world. Such laws included the Suppression of Communism Act, the Group Areas Act, the Mixed Marriages Act and many others. In terms of and under these laws the Government managed to deal with all kinds of challenges to the system of apartheid. It was able to deal with and "neutralise" individuals, groups and organisations which were opposed to apartheid.
The Legal Resources Centre was founded at the height of this repression in 1978 by respected and influential members of the Bar and Side-Bar and I would like to mention them. They include Advocate CD Kentridge, Advocate Arthur Chaskalson, Advocate Felicia Kentridge and attorneys Charl Cilliers ...(tape ends)
... that it used the law itself to challenge abuses of power by the state and to criticise the state.
On the other hand, in order to fortify itself, it appointed respected judges of the Supreme Court as members of its Board of Trustees. In that way it made it a bit difficult for the Government of the time to ban it, based on what the organisation was doing. However, this did not stop the Government from using tactics to discredit the organisation, to intimidate it and in "to neutralise it".
Among tactics used both to harass and neutralise the LRC are the following and I intend to be brief just to give examples. There are many other tactics that were used, but for purposes of this submission I've chosen just a few.
The first thing that the system wanted to do was to weaken the organisation by weakening its governing body which was the source of its income. The activities of the LRC are funded by the Legal Resources Trust and this has been the case since its establishment.
In order to strengthen the LRC, some judges were appointed, as I have said, as trustees of the LRT. Those included judges from the various divisions of the Supreme Court, the Natal Provincial division, the Cape Provincial division, the Transvaal Provincial division and so on.
Around 1986 a campaign was launched by the Government to intimidate or coerce all the judges who were trustees of the LRT, to resign as members of this organisation.
In 1986 the then chief-justice of the Appellate Division contacted some of the judges presidents of the Supreme Court advising them that the Legal Resources Centre was a subversive organisation which was about to be banned and that some of its members were about to be detained. The judge presidents were informed that this would reflect badly on the judiciary, since some of the judges in their divisions were trustees of the organisation. The judge presidents in turn had discussions accordingly with the judges that were trustees of the LRC.
In one instance, due to the fact that the particular judge president was on leave, the chief-justice took it upon himself to discuss the matter directly with the judge in the division who was a trustee of the Legal Resources Centre.
This strategy to intimidate judges to sever their relationships with the Legal Resources Trust, all but failed, as only one trustee who was then judge in one of the divisions succumbed under this pressure and resigned. But I'm happy to say that the other judges who were trustees of the Legal Resources Centre, did not resign. In my view the security establishment had managed to get through to the judiciary by convincing the chief-justice to serve as its agent to weaken the Legal Resources Centre. That the executive could use the judiciary at all is extraordinary and highlights the fact that the power of the state had become so unbridled that it was having no qualms in corroding the independence of the judiciary.
The second tactic was to keep the Legal Resources Centre under surveillance and to use the information obtained to discredit it. Soon after its inception the Legal Resources Centre had dealt the apartheid system some major blows as far as some of the legislation of present Blacks, the formally so-called Bantus, was concerned.
By the end of 1980 for instance, it had obtained the landmark Appellate division decision in Kumane versus Bantu Affairs Administration Board for the Peninsula area which struck down regulations that purported to prohibit Black men who were lawfully living in urban areas from living there with their wives and children.
The legislation under which the regulations were framed as well as the legislation itself, were aimed at destroying the Black families among others. The result of this case was that thousands of Blacks acquired rights to live in urban areas with their families, a result which was contrary to the aims of the policy of separate development, which required that Blacks should have no rights in urban areas, but only in homelands.
The Kumane decision was soon followed by another Appellate Division decision in Rikoto versus Die Oos-Randse Administrasieraad. That case was decided in 1983. In order to prevent Blacks working in urban areas from acquiring rights of permanent residence in those areas, that is urban areas, labour regulations governing Blacks required that these Blacks returned to their rural areas once per year on leave in order to renew their permits to work in urban areas.
Section 10 of the then Bantu Urban Areas Consolidation Act 25 of 1945, provided that a Black person would acquire rights of permanent residence in an urban area if he or she had worked in an urban area for a continuous period of ten years. Administration boards which implemented these regulations interpreted the period spent in the rural area on leave for purposes of renewing the work permit, as a break or an interruption in the period required to obtain the right of permanent residence.
The result was that Blacks who worked for one employer for more than ten years never acquired the right of permanent residence in urban areas. The court decided that the period of absence on leave did not affect the continuity of the required period. Once again tens of thousands of Blacks acquired rights of permanent residence in urban areas contrary to the policies of the Government.
As a result of these and other successes which the organisation scored against apartheid the Government felt very threatened. It was accused - the Legal Resources Centre was accused of supplying negative information about the South African Government overseas and locally. The LRC was perceived as limiting the effectiveness of the state of emergency by supporting advice offices. For example, the Government was worried that although the state of emergency was curtailing the activities of advice officers these were actually increasing in number. That was around 1986 '87. It therefore mounted measures to contain the threat posed by the LRC. One of those measures employed was to monitor the organisation even more closely and to place some of its activities under strict surveillance.
For example, in 1989 the security police planted listening devices in a hall used by the Legal Resources Centre for its annual general meeting at the Mount Grace Hotel in Magaliesburg and recorded the proceedings, apparently with the knowledge and co-operation of the hotel management of that time.
The LRC became aware of this after the AGM and formally complained to the then Minister of police - sorry - Minister of Justice and Commission of Police. An investigation was promised, but as usual nothing was done.
The incident at the Mount Grace Hotel has been reported to the Truth Commission before at an earlier hearing on the KTC events in Cape Town. We understand that the Truth Commission did inform the Mount Grace Hotel about our allegations, but the Hotel has to my knowledge not said anything about that.
The third instance that I would like to refer to, is propaganda against the organisation. The former South African Government is known for its religious use of propaganda. At some instances such propaganda was used against the LRC at different levels.
Conservative members of the Provincial Law Societies and some members of the Association of Law Societies were won over by the security establishment by being made to believe that the LRC was not only subversive, but was also in breach of the terms under which the various law societies had allowed it to conduct its business in order to help the poor and the disadvantaged.
In an extremely secret document entitled Strategie ter Bekamping van die Legal Resources Centre of 27 October 1989 and written under the auspices of the then Minister of Justice, Minister Kobie Coetzee, the latter wrote to the members of the then enlarged state security council that the LRC sometimes misused the law by using the court as a propaganda platform to give prominence to what it alleged were irregularities on the part of the Government.
At page 16 of this document it suggests that the Association of Law Societies and the General Bar Council be made aware that the LRC is a threat to the legal profession. It went on to say in paragraph 6.2 that this would be done through those members of the legal profession who were sympathisers with the directorate for justice, who would then be asked to prevail upon their different Law Societies and Bar Councils to understand the LRC as being a threat to the Legal Profession. If the Law Societies and Bar Councils failed to act, so the document went, or to put their houses in order, then legislation would be passed to regulate the situation.
The aim of the legislation would be to neutralise the Legal Resources Centre. Having regard to what the TRC has previously heard in its special hearings on the defence about the use of the language by state organisations such as the State Security Council, it is probably fair to interpret the word neutralise to mean ban or close down.
The fourth item that I'd like to raise relates to the cutting of the funding sources of the Legal Resources Centre which the state tried to do. Knowing that the LRC depended on donations to support its activities, the Government also targeted the donors of the LRC as an effort to persuade them to withdraw support.
One of the strategies was to enlist the help of the director for fund raising. The latter would be asked to investigate the activities of and prosecute the LRC, the aim being to discredit it in the eyes of the donors.
In the secret document that I've already referred to, it says that the Ministry had already got in touch with the Directorate for fund raising, who was sympathetic to the feelings of the Government about the Legal Resources Centre.
The allegation was made that some of the activities of the LRC were in conflict with the aims of the Legal Resources Trust as stated in the authority given to the trust by the director of fund raising to collect donations.
For example, in the eyes of the Government the LRC was only permitted to give legal assistance only to poor and deserving individuals and not to organisations representing the poor.
Insofar as the Legal Resources Centre then represented trade unions and other organisations that were under repression, this was then being used by the state to try and influence the director of fund-raising to withdraw the authority to deliver resources trust that it had to collect public donations. Fortunately this did not succeed.
The state also wanted to use any case in which the Legal Resources centre had rendered advice to civil society organisations to block future funding. In 1989 the Government passed the Disclosure of Foreign Funding Act of 1989. The aim was to compel certain organisations and persons who received money from sources abroad to make full disclosures among others as to the source and purpose for which the moneys were to be used.
Around September 1989 the LRC was informed by Wilfred Scuff of the Criminology Institute at the University of Cape Town that he had been asked to investigate the implications of the Act for various organisations. In the course of his investigations he had discussions with the personnel at the Canadian Embassy. These people had informed him that they'd approached the South African Government to find out exactly why this Act had been passed and whose finding it was that the South African Government intended to limit or to cut.
The reply that they received from the Government indicated that in particular three organisations were causing the Government concern and the Government intended to bring them under control, and those were the KAGISO Trust, the South African Council of Churches and the Legal Resources Centre.
Maybe I should move to the last example. That was targeting individuals and people, staff members and people who were associated with the Legal Resources Centre in order to inspire fear in them so that they would not carry on with working for the Legal Resources Centre.
Many people didn't join the Legal Resources Centre, because of fear that they would be targeted; that they would be on the wrong side of the then existing law.
Prominent lawyers associated with the LRC were identified as troublemakers by the Government. In June 1986 a list of names of what was referred to as politically sensitive persons, was discussed by the state security council.
Among them are the names of the following staff members and trustees of the Legal Resources Centre or former trustees of the Legal Resources Centre. The list classifies names into categories according to the type or combination or type of combination of types of actions taken against these persons.
The first one, Arthur Chaskalson intensive investigation. Richard Lyster, intensive investigation. Karel Tipp, intensive investigation. Fikile Bam had a distinction of being referred to Stratcom. Jeff Budlander, continued investigation and intensive investigation. Sydney Kentridge, intensive investigation. Chris Nicholson, Steve Kahanovits, Charles Nupen, continued investigation.
Now, the aim of listing people like this of course was to discredit them in the eyes of the gullible public in South Africa which believed the Government in what it was saying, and in doing so it would demoralise the people concerned, but also it would limit the effectiveness of the Legal Resources Centre.
The majority of White farmers were either sympathisers or agents of the state security establishment. Some of them were used to intimidate members of the Legal Resources Centre. I must say that a lot of human rights violations were perpetrated by White farmers. They had a privileged status in South Africa. They had the right to kill. They assaulted, they brutalised the people that worked on their farms and they did not take kindly to any questioning of those activities.
In the late 1980's and early 1990's the LRC did concentrated work in Wakkerstroom, Piet Retief and other areas in the Eastern Transvaal. The LRC initially became involved in those areas to assist communities fighting forced removals which were keyed to the fine tuning of the geographical apartheid as well as the establishment of the homeland government system.
In addition to representing clients the LRC conducted monthly legal clinics especially in Driefontein, advising members of the community of their rights and empowering them to use the law to protect their rights.
You'll understand also that in the course of this the LRC took a number of case in which it sued the Government for police brutality in the area, but also there were a number of cases that were taken against farmers in the area who had brutalised people, who had used the illegal Squatting Act in order to evict people who had been on these farms for years and years and they were being evicted, partly in collaboration with the Government.
A rumour was spread among the people and among the White farmers saying that the LRC lawyers were lawyers for the African National Congress. The aim was to discredit those lawyers in the eyes of the community. One should remember that at that time, Inkatha was still the most popular party in the area and in the Eastern Transvaal of course to be seen as an ANC person was to be seen as being against the people.
In October 1990 we received a report that a meeting of farmers at the Allespruit Farmers Hall which had been addressed by an Inkatha chief, that a particular farmer at that meeting had called upon Inkatha to kill certain people which were referred to as "coolies" and other persons were organising for the African National Congress and whom were said to have been brought from Johannesburg. This was a reference to the lawyers of the Legal Resources Centre. It was a threat to the lives of the LRC personnel working in the area and a threat to those persons with whom we worked, some of whom are Asian and some of whom who happen to be supporters of the ANC.
This matter was taken very seriously, because we felt that it posed a direct threat to the people working in the Legal Resources Centre. It was then taken up with the Commissioner of Police and as usual nothing happened after that.
In April 1987 the Pretoria office received an instruction from a hotel owner from KwaNdebele, a Mr Shabangu, to assist him in investigating an alleged disappearance of his son who had been in police custody and who was reported to have escaped.
An attorney of the Legal Resources Centre, Mr Nick de Villiers and another employee visited Mr Shabangu. When they went to KwaNdebele to consult with him and to investigate the matter, Mr De Villiers was detained under the emergency regulations for not having acquired the required permit to enter KwaNdebele.
It is strange that he was detained for that even though it had nothing to do with security. He had applied for the permit before going to KwaNdebele, but the Commissioner of Police of KwaNdebele had dilly-dallied until he had decided to go there and make a personal application. Upon arrival he was detained for not being in possession of the permit. He had other matters in KwaNdebele on which he was appearing on behalf of other clients. The KwaNdebele Police made it impossible for him to obtain the required permit to enter KwaNdebele for purposes of representing his clients.
When he returned to KwaNdebele at a later stage, again he was promptly arrested and detained under security legislation and was not allowed to represent his clients. His detention was urgently challenged in court. Soon after the start of the court hearing, however, the state considered that there were no grounds for detaining him and agreed to release him.
There are many other incidents of harassment and intimidation involving both staff and trustees of the LRC, which are more important, because they were life threatening to individuals endangering lives.
Whilst some individuals in the organisations were detained, lives were threatened, tyres slashed and bricks and stones smashed through windows. As stated earlier, this form of harassment did not only occur to staff and members of the LRC as it also happened to many people outside and in fact as I said, worse happened to people outside.
As a result of some - as a result some of the staff members of the LRC who suffered this harassment prefer not to be named or individualised. Their argument is that their suffering is much less than the suffering that many South Africans have endured in the hands of the former South African state and its security machinery and they prefer therefore to just to mention to the Commission that some of these things did take place.
Lessons that we're learning from all this is that; number one, never again should South Africa have a constitutional system that gives unbridled power to any Government or Government agent or Government body. I think that for the future the present constitution does a lot to take care of that.
Secondly, the lesson that we're getting from this is that it is important to develop constitutional democracy in South Africa in such a way that our ordinary members of the public are aware of its rights, of its enforceability and they're aware that it is the Supreme Law and can use it in order to challenge abuses in the future.
I think it is important to develop a vibrant society in South Africa. Looking back, I think that part of the problem was exacerbated by the fact that the South African society, especially the White South African society was the most gullible that I've ever come across in this world. They were prepared to believe whatever the police was saying. They were never prepared to check. This transcended, I don't want to talk about judges, but this even went as far as White judges. Many a time accused people who were accused of security crimes appeared before judges and said we've been assaulted and many, many times this happened and it never occurred to judges that these people might be telling the truth. All the time the confessions were accepted, the accused were seen to be lying, changing their minds. I find this to be extraordinary gullibility on the part of the White members of our society, if not naiveté - I don't know.
But I think that it is necessary that we should teach our society to think independently, so that when people come to it and say this is the position they can go and check and use their own minds to decide whether it is like that.
Thirdly, of course it is necessary that we should maintain the existence or encourage the existence of NGO's, because without them I think that the momentum to create a democratic society is going to be lost. Government is too busy doing its own things. It's too busy governing and sometimes it is not having the time to create the ideal democratic situation that we need in the future. It is therefore necessary that we have and we encourage human rights organisations and other NGO's that will keep Government in check all the time.
Thank you very much.
MS SOOKA: Thank you, Mr Majola. Hanif?
MR VALLY: Thank you, Mr Majola. I just want to ask you to just have your revised version of your paper, the one you submitted is very different, but it is not a problem. Let us have it, please.
MR MAJOLA: Yes, I don't think it's a different paper. We have submitted two. After we have submitted the first submission, we were asked then to deal specifically with this issue. So this is an additional submission, which we're doing on request of the Commission.
MR VALLY: Fair enough. Mr Majola, I just want to ask you some very brief questions during the time involved. I think the cases you cited which had an impact in the influx control laws had an impact on the lives of millions and millions of people and certainly deserve praise, however though, the one issue that interests me, as is quoted by Judge Olivier in his submission to us, previously what the Government merely did was change the rules. I quote
"Judges were faced by wily adversities in the form of Governmental legal draughtsmen who assiduously closed every gap, loophole or ambiguity in the apartheid legislation."
Why do you think that the Government did not do this in terms of these judgments that were successfully brought or won by the LRC?
MR MAJOLA: Well, I wouldn't want to give credit to the LRC for that. I think that at the time these judgments were obtained already. There was so much opposition to apartheid. There were other organisations that were fighting apartheid at a political level, but more than that I think that the world community had been enforced to take a greater interest in South Africa and was monitoring it.
South Africa had an image problem which it wanted to try and portray as being a clean image problem. It would have been difficult for it to maintain, to keep on maintaining that problem when it came back behind its judiciary and closing those gaps very overtly. Of course I think that it did in some instances, but I think that that may have been the problem, that, you know, it had to do that balancing act, but I don't think it was because of any action on the part of the LRC.
MR VALLY: The next issue I wanted to raise with you is your complaint about your AGM being bugged and you stated that you believed that it was done allegedly with the knowledge of the hotel management. Just a comment. This is the same institution where the judges annually have their judges' conference under the auspices of sector for applied legal studies of the University of the Witwatersrand. Is this the same place?
MR MAJOLA: No, I don't know.
MR VALLY: We had different information, but ... (intervention).
(MUMBLING IN BACKGROUND - NOT INTO MIKE - NOT AUDIBLE)
MR VALLY: ... we'll note that - it will come up later on again, because there was one this year. (mumbling) Mr Hodes ... (intervention).
MS SOOKA: Mr Hodes, I think that - thank you.
MR VALLY: You had your chance, Mr Hodes and you were wrong then. Let's go on. I want to ask you this question about the attitude of donors who maintained that in view of the fact that we have a democratic system in South Africa, that there is no need to fund agencies such as the Legal Resources Centre who tried to uphold the constitutional rights of the citizens of South Africa. What's your reaction to that?
MR MAJOLA: My reaction to that is that of course they are wrong. I think they are taking a very simplistic approach to the problem in South Africa. Apartheid went on for a long, long time. The constitution and the election of a democratic Government has not wiped out the consequences of apartheid. We still need NGO's like ours to kind of do a certain role to sweep away the adversities of apartheid, but we're looking ahead. We need to create a situation where what happened under apartheid did not - does not happen again.
It is therefore necessary for organisations such as Lawyers for Human Rights, LRC, BLA, NADEL and others to make a contribution in the development of a legal system of a constitutional system that is compatible with human rights.
Business cannot do that. Government, as I already said, is busy with governing, they cannot do that and these are best placed to do it. I think for that reason it is a wrong conclusion on the part of donors.
MR VALLY: Thank you very much Mr Majola.
MS SOOKA: Any questions? Thank you, Mr Majola. I think the Commission is certainly - has recognised the role that the LRC has played during the ...(tape side A ends)
MS SOOKA: ... the remaining three presentations to see if we can try and shift some of them over onto tomorrow so that we can actually just deal with the comment on today's hearings. So, a five minute body break.
HEARING ADJOURNS
ON RESUMPTION
MS SOOKA: I'm going to ask you to introduce your students and then we'll just ask them to take the oath.
MEMBER: The students that are going to be presenting today are students of the University of Natal who serve at the campus law clinic of the University of Natal. These submissions are part of a project that they've been doing within the hospices for our adman-justice and juvenile-justice units.
They themselves will be doing the presentations. They will introduce themselves as they present the different components. You will notice that they really are only focusing on small pieces and are quite satisfied that the big picture had been created and established by many of the other institutions like NADEL and BLA that have represented.
So, I'll just start by introducing Gomotso whose going to be the first person to speak and I will be helping in fielding questions.
MS SOOKA: Thank you. Could you - you can sit. If you could just state your full names for the record, please?
MR GAILI: My name is Gomotso Gaili.
MS SOOKA: Are you going to take the oath or do you want to take the affirmation?
MR GAILI: The oath.
GOMOTSO GAILI: (Duly sworn states).
MS SOOKA: Thank you. You may be seated.
MR BOESAK: My name is Albert Boesak.
MS SOOKA: Thank you. If you would also just stand, please.
ABEL BOESAK: (Duly sworn states).
MS SOOKA: Thank you. You may be seated. I think that perhaps I should swear you all in at one time. If you could just, yes, if you could just give me your full names, please. If you could move from the left-hand side, please. Just press the button.
MS TEREMEDO: I'm Koneshe Teremedo.
MS MOODLEY: I'm Desree Moodley.
MR BROWN: I'm Lehani Brown.
MR CHETTY: I'm Seves Chetty.
MS NAGALA: I'm Lichi Nagala.
MS SOOKA: Thank you.
KONESHE TEREMEDO, DESREE MOODLEY, LEHANI BROWN, SEVES CHETTY, LICHI NAGALA: (Duly sworn in, states).
MS SOOKA: Thank you. You may be seated.
MR GAILI: Could I proceed? Yes, before indulging in any analysis of any process of life in South Africa is unfortunate, however a imperative that one does not do an injustice one endeavours by not reflecting on our brutal history.
One may be able to understand and hopefully change the status quo through looking at this history. We cannot avoid reflecting on our history, because of the present system of governance and also the effect it had on our social order.
Since apartheid was structural and institutional it affects every sphere of our private and public life. The Department of Justice as a Government Department could not be immune to this interference.
Especially since it was expected that it confirm and perpetuated the status quo. The end results of that was that it was a bias against the Black people.
It's common cause that apartheid was a policy created for the sole purpose of the White denomination. This transcended through the economic sphere as well.
It will be argued in this submission that an individual's race, gender and economic standing invariably determined the outcome of the treatment by the justice system. This of course was clearly expanded expounded by an American Senator Philip Hart who commented that justice is a two transmission belt, one for the rich and one for the poor. The low income transmission belt is easier to ride without falling off and gets to prison in a shorter order.
The transmission belt for the affluent is a little slower and it passes innumerable stations where its exits are temptingly convenient. This is true in South Africa, today as it was in the US.
The effects of - the affects were as a result of deliberate calculation with the previous regime to specifically exclude Blacks from the personnel structure from the Department of Justice.
It is against this background that we should consider the following. In this case I'm only going to consider the first part, the race and the gender composition of the Department and my friend will do the second part.
In analysis of this, the personnel composition, it would be expedient to start from 1977, because it was during this year that people were first taken up to employment ranks of the Department. This is according to the Race Relations survey of 1977. According to the then Minister of Justice said, in 1977, that there were two Coloured and two Asians prosecutors. Furthermore, he stated that it would be contrary to Governmental policy to appoint Africans to professional posts in the public service of the Republic of South Africa.
Africans were expected to train in homelands so that the services of the Bantu can be employed in the homelands of his origin.
Tracing from 1977 to later, after ten years in 1987, the first - Mandladergla Gavella(?) started work at the Pietermaritzburg Magistrate's Court as the first African prosecutor in South Africa, outside the homelands system.
In the same year the South African first Indian judge, Mr Hassan (...indistinct) was appointed to sit on the Bench of the Durban coastal local division Supreme Court.
As it was in December 31, 1988, 27 Africans, 54 Coloureds, 208 Indians and 847 Whites were serving as prosecutors in South Africa. This of course excludes the independent and non-independent homelands.
People employed with the legal qualifications in the Department of Justice in the period of 1988, 1989, 1990 were as follows. 2049 Whites, 27 Africans, 61 Coloureds 40 Indians.
These statistics of course they reflected status quo until 1990 and that days there's no marked difference in the personnel make-up of the Department, even to date. This of course it's been under certain assumptions.
Firstly, the Justice Training College being the major training ground, especially for the magistrates, has not shown a significant increase in the intake of people of colour.
Secondly, having a look through the Justice Department's magazine - the name I cannot pronounce correctly - it is quite evident in the portrayal of people and advocates who the majority personnel still is.
The fact that the Department had to 2049 Whites employed between the period of '89 and '90, coupled with the (...indistinct) clause. The (...indistinct) laws made an agreement that civil servants from the previous Government wouldn't be - actually their jobs were safe, would make it safe to assume that the changes in the make-up have not yet reached the democratic make-up of the country.
Lastly, it's also said to note the low number of women in the Department of Justice.
MS SOOKA: Thank you.
MR BOESAK: Now we're addressing the second point that we attempt to address in our proposal here. It is the discretion to prosecute or not.
It is in exercising the discretion to prosecute or not that gross human rights abuses took place. Kenneth Caldavis had this to say about that discretion.
"I think the greatest and the most frequent injustice occurs at the discretion end of the scale where rules and principles provide little or no guidance; where emotions of presiding officers may effect what they do; where political or other favouritism may influence decisions and where the imperfections of human nature are often reflected in the choices made."
This was reported in the discretion of justice, a preliminary enquiry, 1969.
In an article written by two authors in a Stellenbosch Law Review, volume one 1997, Raymond Koen and Debbie Budlander conducted a survey of the justice system by interviewing a number of practitioners. In regard to the discretion of attorneys general to prosecute or not, the following have been noted.
"A White advocate reported that in case where she had made representations to an attorney-general's office, they've always asked me first; is he White or Black. Always."
So race is definitely an issue. Other interviewees spoke more of a gut feeling and as another advocate said;
"I don't have concrete evidence, but based on perceptions I think reasonably held which I have as a Black South African, having dealt with authorities, prosecution, the police and the courts, I've got no doubt that these three factors of race, class and gender definitely play a role in a decision to prosecute."
The above authors further commented that the majority among interviewees in relation to colour and credibility, was that magistrates tend to believe that Black accused have committed the offence with which they have been charged.
As a result the evidence of Black accused is treated with suspicion or as a fabrication. In the words of a Black attorney;
"Magistrates come from decent White suburbs and believe that Whites never lie and Blacks find difficulty telling the truth or are most economical with the truth."
This can however be seen as an oddity in regard to the easy acceptance of confessions of the same Black accused by magistrates. The same accused with such a good propensity to tell lies.
A further elucidation of racial mentality of the Department, may be reflected by the handling of political violence matters, especially in KwaZulu Natal.
In 1992 (...indistinct) there are strong grounds for viewing the South African judicial system as biased in favour of the state. Judges and magistrates have tended to be White middle-class males whose innate conservatism has on a whole done nothing to threaten the status quo. Although there have been exceptions. Thus the role of the courts in the Natal Midlands can be anticipated to some extent. In other words standing to support the state structure and theories, thus over and above apparent bias of members of the judiciary is a deliberate manipulation of the judicial system by the state.
A number of case studies may indicate the lack of accountability and the wide discretion afforded to the attorney-general's office. For instance, in February 1988, 43 IFP members were charged with public violence. Their charges withdrawn and replaced with accusations of illegal assembly. The prosecutor could give no reason for the change, but said that the decision had been made after consultation with the attorney-general.
In August 1988, charges against Tu Ncobo for the murder of Ernest Mtembu were withdrawn. No reason was given.
In March 1989, murder charges against two men for the murder of Frank Zwake in Sweetwaters were dropped. No reason was given. Cases continue. These are obviously just a drop in the ocean of atrocities which were never properly brought to book, especially taking into consideration that more than 20 000 people were killed in the course of this violence.
But importantly here for our purposes it is clear indication that the justice system had no regard whatsoever for the lives of Black people and also that it was in the interest of a policy of divide and rule. One can only imagine if White lives were at stake in the same manner as the innumerable Black lives had succumbed to the violence, what the authority's reaction would have been.
Furthermore a report in June 1992 by Amnesty International noted -
That effectiveness of the investigation into police abuse has also been hampered by what can only be described as a general passivity of the attorney-general's office".
It is against this brief background that we propose the following within the Department of Justice.
One, change in recruitment practices to create a Department reflecting the demographics of our country and also recruitment of more women professionals into managerial positions within the different structures of the Department.
Two, the recruitment process should also include a training component and should not be a mere manipulation of numbers but actual capacity and human resource development.
Re-education of the present personnel on aspects of social justice, gender, racial sensitivity and also the law as encapsulated in the constitution is another point.
Fourthly, the adoption of a more transparent attitude and user-friendly justice system that will treat all fairly including the families of accused persons who are invariably left in the dark about prosecutions.
In addition the possible publication of a newsletter which would be accessible to the proverbial layman on the street and not just to legal practitioners and academics about the functioning and success of prosecutions as well as reasons provided by certain prominent cases not prosecuted at all.
The fifth recommendation is that the creation of a national attorney-general's office will have great ramifications in regard to the present functioning of the provincial AG's office in that all prosecutors and provincial AG's will be answerable to that office.
Furthermore, the creation of such an office will also advance the establishment of guidelines or specific modus operandi across the nation which would also masculate the patronage which present provincial AG's have over their personnel.
Sixthly, the national attorney-general's office should also not have sole discretion in regard to prosecutions or other matters. The person should be answerable to a committee. The details could be worked out.
My seventh recommendation is that it is also out submissions that the tenure of the attorney-general should be limited to a certain number of years, in other words, seven years especially in order to avoid political appointments and also to cater for the continuous transition of that office; that it will not become a so-called dinosaur in the system.
It is our final submission, bearing the purpose and spirit of the Truth and Reconciliation Commission in mind, that serious attention should be paid to the restructuring of the Department of Justice alongside with the restructuring of the legal profession as a whole. If we are to encourage and entrench the values of free and democratic society as we have already successfully commenced on that path then we definitely ought to restructure the institutions that form the core or rather the fundamental spine to the previous apartheid regime.
We're all aware of the atrocities committed in the name of so-called justice under the cloak of the apartheid doctrine. It is therefore our submission that we now attempt to avoid a repetition of similar atrocities under some or other hideous or ridiculous doctrine then we ought to establish checks and balances in our system to curve the potential of such abuses, hence in the premises we hope that our submissions have shed some light on this and contributed to the process of re-inventing our institutions.
I now wish to turn to issues that were raised during the proceedings today which are not directly related to the subject matter of our submission here.
Firstly, we'd like to express our opinion on the absence of judges as pointed out by Adv Phosa here. Our opinion definitely correlates with the emphatic and eloquent expression of Adv Phosa's position and his amazement of the absenteeism from these hearings. One would have thought that because of the essential and central role played by judges, they would have made some form of representation in merely sitting in at the hearings, bearing in mind the issue of time constraint obviously.
Our second submissions is that I would like to express concern specifically in regard to the role of law students in the involvement in the proceedings here. We as a group here were fortunate being law students serving in a law clinic at the University of Natal, to have been able to make our brief submission here, however, being an ex-official member of law students' council at the University of Natal, we are perturbed at the lack of information and opportunities accorded to law students broadly or through law students' societies to represent their views and input on the legal profession, because the events would obviously affect law graduates at the end of the day. Thank you.
MS SOOKA: Thank you very much for that submission. Who is next? Mr Dadnos, Mr Maloto has said that he will go tomorrow. So after the students it's just the summing up from the panel.
MR BROWN: Madam Chair, Commissioners, ladies and gentlemen, the fact that race, gender and class affects both the level of efficiency of prosecution and the judgement has been clearly stated by my colleagues. The fact that in the past the executive arm of Government used the prosecuting authority to achieve its objective of ensuring the survival of apartheid has also been clearly demonstrated.
In this submission we will focus on how the prosecuting authority can embark on a process of corrective action by re-examining its role. We submit that unless such corrective action is embarked upon, the injustices of the past will continue in the subtle operations of the prosecuting authority.
Moving on to the injustices of the past that continue today. In the past the rights of victims of human rights abuses and complainants in criminal cases took second place to the rights of perpetrators of human rights violations and accused in criminal matters.
The criminal justice system was designed to bolster this imbalance. Currently the criminal justice system continues to be biased in favour of the rights of the accused. In most cases victims and complainants are unaware of their rights and remedies. It is taken for granted that the prosecutor represents his or her interest. However, the prosecuting authority has not yet made the paradigm shift, instead complainants in cases of police brutalities, sexual offences and other such crimes are still not treated with any respect or dignity.
In our clinic we receive cases on a daily basis where people have laid charges of rape, child abuse and police brutality. They are unhappy with the way in which the matter was investigated and in the way in which the case proceeds.
We all know that it takes a great deal of courage and strength to institute charges in these instances, especially in KwaZulu Natal. These experiences have become even more traumatic and life threatening when matters are not dealt with in an efficient and sensitive manner.
We are able to cite several cases within this category where charges of assault of street children having withdrawn against police officers without any reason. It is within this backdrop that we offer the following suggestions.
Our recommendations therefore are; firstly, at the outset a major paradigm shift needs to occur. The prosecuting authority needs to realise that it represents the state, the individual complainant and the interest of society. It is not directly accountable to the executive arm of Government.
This shift can only take place if prosecutors are re-educated. They need to be trained in both the provisions of the new constitution and how it affects their role and in the issues of social and economic context.
They need to understand that they operate within society and not in a vacuum. The Truth Commission ought to recommend a training programme for prosecutors.
Secondly, it ought to recommend the development of a code of conduct for prosecutors. This code of conduct in relation to the prosecutors' duties as regard to complainants ought to include the following issues that are currently dealt with in legislation, but are not implemented in practice.
They are the duty to advise the complainant about his or her rights and remedies; the duty to inform the complainant about the merits and de-merits of the case and the procedure that will be followed; the duty to inform the complainant of his or her right in terms of section 300 of the Criminal Procedure Act; that is his or her rights to compensation; the duty to prepare the complainant for evidence, both in chief- and cross-examination; the duty to inform the complainants about the developments in the case as it proceeds and the duty of the prosecutor to ensure that the investigation is conducted effectively and efficiently.
Finally, a mechanism whereby Government, organs of civil society and prosecutors themselves are to work in partnership to monitor the implementation of the code of conduct.
In our conclusion, therefore. we state that our law clinic is not concerned with a mere apology for the atrocities of the past. We hope that we have been able to begin the process of finding strategies that undo the injustices of the past and work towards empowering those who have been victims of abuses in the past.
We also hope that through this type of focus that even perpetrators may find concrete ways to remedy past injustices and not stop at - I'm sorry -
MS SOOKA: Thank you.
MS NGALA: My name is Busi Ngala on behalf of the University of Natal. The role of magistrates in the perpetuation of the apartheid system is both perplexing and interesting.
It is perplexing to note that individuals who were entrusted with the power of arbitration and the decision making on such issues as whether or not an individual was guilty of murder, could be so biased in their approach that they consciously discriminated against others merely by virtue of their skin colour and gender.
It is interesting because it was not just a question of individual magistrates who chose to exercise their discretion in such a manner; it was actually part of a concerted effort to ensure that the apartheid system succeeded in subjugating the majority of the South African population.
This submission will focus on how institutions like the Justice Training College ensured that the system of apartheid was upheld and that magistrates performed their function within the four corners of their training, not necessarily the law.
It will also provide recommendations on how the system can be transformed.
The Justice Training College was created for a number of reasons. Although its primary objective was to train magistrates in performing their duties, it achieved many other subsidiary objectives, such as affirmative action and capacity building for White Afrikaners and producing technocratic individuals who applied the law in a narrow manner.
In 1957 its objectives expanded to include providing assistance to unqualified officials in their studies. This happened to be White Afrikaner males as one of their apartheid Government's drive to affirm their people in positions of power.
In affect the courts as part of the civil service were used to create jobs for White Afrikaners during the days of what was commonly referred to as White - as poor Whites. I'm sorry.
The College was therefore not limited to ensuring continued legal education and training of magistrates. On the contrary its functions were part of the overall strategy of the minority domination through the apartheid system.
The sole objective of the syllabus of the Justice College was the production of technocratic officials, no legible in the law and specifically its application.
The syllabus was not placed within the social economic and political context within which these magistrates were ultimately required to discharge their duties. A concerted effort was made to discourage critical analysis of the law. They were to apply in the lower courts by the Justice College. This practically meant that the magistrate could apply the laws in contravention of human rights. They're oblivious to hold their decisions impacted on society. The effects and consequences of applying legislation such as the state of emergency regulations did not occur to them.
There are innumerable cases were conducted on the basis of evidence obtained in contravention of their fundamental human rights of the accused; some of these were highlighted by Ms Priscilla Jana. These emanated to a large extent from the attitude based on legal positivism on the part of the magistrates.
The magistrates discharged their duties within the ambit and policy of the Government of the day. This in effect had an impact on the quality of their judgments.
It is from the very same Justice College that the magistrates were enrolled initially for prosecutor's courses, later for magistrate's courses and are still so enrolled to this date. Such training is now inconsistent with a human right and value based approach to the law. Some magisterial districts in the peripheries have magistrates who have never had access to those training programmes. It is unclear as to whether this worked to their benefit or not.
Our recommendations to the training are that the Justice Training College should be restructured and a new independent college within independent staff should be established to ensure that the training is geared towards encouraging critical reasoning by the magistrates in dealing with the matters before them within a human rights and value based framework.
The Justice College should interact and co-ordinate its programmes with the new democratic structures such as the Human Rights Committee - excuse me - the Human Rights Commission and the constitutional court. This sentiment has been expressed by magistrates whom we have interviewed. The syllabus of the Justice College should place more emphasis on the new constitution and the Bill of the Fundamental Human Rights, especially as to how its provisions affect our common and statutory law at present.
The syllabus ought to be amended to be steeped in a human rights and value based framework.
Monitoring mechanisms need to be established to ensure that those magistrates who emerge out of the old order are placed under pressure to change their attitudes and give effect to the spirit of our constitution.
These initiatives would need the co-operation of Government, civil society and other magistrates.
In conclusion, the above recommendations constitute our effort at the first steps that need to be taken to ensure that change occurs; that people are transformed and that the injustices of the past remain firmly in the past.
It is our expectation that the recommendations contained here will form the basis of a process of transformation of the lower courts and that that courts should represent the South Africa that they say. Thank you.
MS SOOKA: Thank you. You could actually sit there and I wonder if I might ask that you can - the fact that we have a little bit of a time constraint - if you could just try and summarise in some of the cases.
MS MOODLEY: It is on now, okay?
MS SOOKA: It's fine.
MS MOODLEY: My name is Desree Moodley and I'm dealing with the section on rule of the legal system. It is clear that White lawyers enjoyed the benefits of the apartheid system. Some lawyers even helped to bolster and protect the system.
They acted as gate-keepers of the system by restricting entry into the profession by Black people. They also ensured that lawyers who challenged the system were struck off the role.
For example, the well reported case of Patrick Magubela. Others merely watched, reaped the rewards and took no action to challenge the system.
This submission will explore briefly the benefits enjoyed by White lawyers, their role in protecting the apartheid system and more importantly it will focus on recommendations to both remedy the imbalances that have resulted and to prevent a re-occurrence of these inhumane activities.
White lawyers enjoyed almost exclusive support from parastatals and other Government agencies. They were instructed to perform legal work for Departments like the Police, Defence, Transport and many others. In so doing they both enjoyed monetary reward and the satisfaction that they are protecting the state from "Die Swart gevaar." Local Government agencies and big business also placed their needs squarely in the hands of these White lawyers. It is no surprise that the Legal Profession in South Africa reflects such grave imbalances.
Furthermore institutions such as the Legal Aid Board were established to assist these practitioners. It is clear that the system of legal aid as it is currently run, protects the interest of practitioners as opposed to the indigent person.
This system emerged at a time when White practitioners were the major beneficiaries in running these bodies..(tape ends)
....exclude black people. Other such bodies were subtle in their approach. However, they achieved the same goal, the restriction of entry into the legal profession. It is within this backdrop that we present the following recommendations, to both prevent such dehumanization and inequities from recurring, and to redress the imbalances that have resulted. The recommendations will be dealt with by Ms. T. Tirimul? Thank you.
MS T. TIRIMUL: Good day everyone. Even though the above submissions and recommendations may seem trivial in the light of the big picture being put together by the Truth and Reconciliation Commission, we consider them to have contributed to the dehumanization of black people under apartheid and therefore we chose to focus on these subjects - these aspects.
An important step that ought to be recommended by the Truth Commission, is that the bodies that currently govern the legal profession, ought to be transformed and restructured, even though they represent the majority among legal practitioners, they do not represent the wider interest of society, in fact, if they were to continue as is, it is clear that little or no change will occur within the profession. It is likely that other forms of discrimination will occur. It is not enough to merely say, "sorry". Serious change needs to occur to protect the interest of both the current and emerging black practitioner. Secondly, parastatals and other government agencies ought to ensure that legal work is equitably distributed and a concerted effort is made to instruct black law firms.
The law degrees ought to be re-examined and modified to ensure that more black students emerge from university with the ability to practice effectively. Currently, legal education is far removed from the realities of practice. Little or no attention is given to the issues that affect black people, both in the substantive law that is taught and in the methods used to teach.
Family law is still taught without reference to black divorce courts. Pressure ought to be applied on law teachers and universities to also build that method of teaching and the content of that courses.
Even though universities ought to be independent, some intervention is clearly required to undo the injustices of the past.
It is submitted, that it is time to also look at how monies in the Fidelity Fund is used, and who has the responsibility for making these decisions.
It is further submitted that the Fidelity Fund ought to utilize its money to support the above initiatives. It ought to ensure that more money is spent on bursaries and student support programs to increase the number of black practitioners. It ought to provide greater support to law clinics who carry the burden often exclusively, of teaching students the skill required to practice and exposing them to the realities of the legal profession.
Finally, it is submitted that one of the more significant ways in which those who enjoyed the benefits of the past could make amends is to provide service to the community whom they allowed to be subjugated. As students, we can say that we do not want the money of these practitioners, we do not want them to go on their hands and knees and beg for forgiveness, we do not want anymore platitudes and token gestures. The apology of the Pretoria Bar, amongst others is noted. However, we need to go beyond this and ask ourselves, what are we going to do in concrete terms to redress the imbalances, to demonstrate, that we really are sorry?
The law clinic suggests that these practitioners share their skills and resources. In concrete terms all it requires is for each governing body to co-ordinate a programme where private practitioners volunteer their time to university law faculties, university law clinics and other community service organisations. If each governing body were to organise such an effort to ensure that more pro bona work, and a greater degree of community service is carried out, then we would have gone beyond platitude to really transforming our society, to ensure that resources are shared, skills are shared and that the human dignity is restore and protected. Thank you.
MS SOOKA:: Thank you very much, it was very good, really.
STUDENT: ...(inaudible) So whether their Justice Vision 2000 incorporates some of them or not, I think these are really original, it's off the record.
MS SOOKA:: .... that you've taken with the law students. It is a pity that we've not had submissions from other university students, but I think that one must say, that invitations went out to all the law schools, to every kind of legal society that is there, as well as to existing practitioners, so it's not as if people have not known about this hearing, and I think it does immense credit to you and your students that you have actually taken the trouble to do this and we will certainly pass these suggestions that you've made in all of the different segments of your presentation to the people concerned, so that we can also get their response, for instance, the one that you have just made about going beyond an apology and asking practitioners to contribute of their time, is really a very good one and I am sure Mr. Hodes will pass that on to his colleagues.
The questions about the Fidelity Fund has certainly been raised, and we thank you for taking the trouble to take the effort and to make the submission. I know that we've made you wait the whole day, it's unfortunate that when you put lawyers together, they all tend to talk too much, and even though we indicated to them that they only had half an hour to touch on the highlights of their submissions, because of NADEL's example yesterday the Bar Council this morning took similar licence. So thank you for coming and thank you for having made that submission.
I've also been asked by my colleagues to tell you people to drive safely back to KwaZulu Natal. We know that as students you can't fly here, but thank you and I hope that you do go safely.
I am going to ask the members of the panel, I know that LHR are presenting with the Centre tomorrow, so if you could hold your comments for tomorrow, but Professor Dyzenhaus, NADEL and the General Bar Council- okay, Mr. Dyzenhaus.
PROF DYZENHAUS:: I think I'll just try to make three quick observations. The one is in relation to some of the things that Mr Wallace said pertaining to my charge of dereliction of duty on the part of the judges. Mr. Wallace suggested that this was academic rhetoric and a privilege of an outsider, but that the insiders knew better. When I made that charge, if you look at my written submission, you'll see that that charge merely states in different words what other people have said, and cited in the footnotes there are three eminent attorneys who are very much on the inside of human rights practice. They might be mere attorneys, but as I understand them they were doing no different than I was in charging the judges with dereliction of duty.
The second issue that I want to talk about is judicial independence. Mr Wallace seemed to suggest yesterday, and perhaps today as well, that under the new constitutional order the separation of powers is clearly protected. We have to be very careful about judicial independence. But in the Canadian experience, judicial independence is a very contested issue. For example should someone be barred from sitting on a Human Rights Commission to investigate charges of sexism, when she herself has been involved in the past in bringing such a charge, some Canadian courts have said that she doesn't have the independence - that such a person doesn't have the independence or impartiality to head a human rights tribunal hearing. And unless we can discuss such issues in the open and perhaps establish some system of accountability, I don't think we can deal properly in a constitutional order with the issue of judicial independence.
The third issue that I want to briefly mention relates to the Bar Councils' submission. I think one has to be careful in relation to the legitimacy issue, and this also relates to the way that we evaluate the judges, of allowing the activity of a very small minority to reflect well on the whole.
There were magnificent advocates in South Africa during the worst years of apartheid. But I recall that people used to talk of them as the political lawyers, and sometimes it seemed that one could list the political lawyers on two hands. And I don't think that we should allow the great reputation of those people to reflect well on the majority. Thank you very much.
MS SOOKA:: Thank you. It is interesting that you talk about the Canadian experience, because a number of judges have actually raised in their submission, the fact that members of the judiciary sat on various commissions of inquiry have actually led to the judiciary falling into disrepute, so I think these are some of the areas which one would welcome an opportunity to have some discussion with the judges, and I think - I am glad that you have actually raised those points. Hanif, do you want to make any response to that before we pass on to NADEL?
MR VALLY:: No, I think the points have been very pertinently and lucidly made, and I don't think I can add to that.
MS SOOKA:: Thank you.
MR VALLY: I hope that the Bar Council does get the message.
MS SOOKA:: Thank you. Zaned?
MR HUSSEIN: Thanks Madam Chair. Professor Dyzenhaus has raised some of the matters which we sought to raise, but there are other issues which we need to concentrate on as well, one is the mode of presentation of the submissions of the GCB and the ALS. If you consider NADEL, BLA and other submissions on the one hand, they seem to all have a commonality of approach, and that is that the Law Societies, the Bar Councils did not do enough, in fact, did extremely little to voice their opposition against apartheid and capricious executive action and executive excesses.
Today, on the other hand listening to the organised profession they are saying we did a great deal, in fact, they appear almost evolutionary, and I am afraid that from our point of view we don't share that view. It is one thing going through the records, the minute books of those organisations and pulling out from there resolutions which are exculpatory, and which speak out against the excesses of the past. That is one way of doing it, and that's the way that have sought to do it.
It's another thing actually looking at the milestones of the apartheid system, looking at the milestones of the judiciary, the magistracy, unjust laws and then asking what was the response of the organised profession to that. When a judge for example, we mentioned the example yesterday, sentences a white farmer to a suspended sentence and a fine for beating two black labourers to death over two days of torture, what did the organised profession say when those sort of excesses occurred?
From our point of view, it is no use pointing to resolutions tucked away in minute books and to delegations which went to see ministers at the time, to complain about laws, and to say that that on it's own shows the track record of those institutions. The question more pertinently put is, when with the passage of time each of these atrocities occurred did the organised profession speak out? And if it did, how did it speak out? That is an important issue, did it come out in an activist sense?
Now I think the question of judicial activism is not a question of opinion only, it's not that NADEL believes because it was judicial - because they were legal activists that everybody ought to be.
In considering, the approach of the organised profession and their response to the excesses of the past, one has to look at the question of relativity. They were faced with very serious excesses, and the question needs to be asked, was it an adequate response to have press submissions, to do a letter to the minister in charge?
They say they were constrained by the fact that they required unanimity. With respect, that's a facile excuse. They could have come out and have said that the very fact that there cannot be unanimity between the Bar Councils is an indictment on those Bar Councils, and that didn't come through.
What one finds is again, unremitting deference to the judicial system. A recognition of legal positivism is an issue that I stressed yesterday, and this is an important issue that this Commission will have to consider. When we look back at the past, do we judge the actions, of lawyers, judges, magistrates on the basis that they were themselves victims of parliamentary sovereignty, or do we ask ourselves the question that, were they justified in allowing themselves to be victims of parliamentary sovereignty? We're talking about learned people here. Mr Wallace reminded us today that in twenty three years, nobody has ever laughed at him, so today he finds it quite refreshing that common lay people have done so. With respect we don't need that paternalism.
The question that highly intelligent people needed to ask themselves at the time, is do we have a parliament in the proper sense that is making laws, or as NADEL describes it, is it a chamber for legitimising oppression? The answer can only have been the latter. Having come to that, to then put up legal positivism as a defence is no defense at all, and in fact is to seek cosy refuge and to justify the lack of stringent criticism and trenchant criticism against the policies of the past. And the TRC, Madam Chair ,with respect will have to ask itself when it considers the actions of lawyers, does it go beyond that paradigm that has been set of parliamentary sovereignty, and it has to ask itself the question were lawyers not required when they were faced with those atrocities to place themselves beyond that and to say to themselves "we need to speak out against that system".
We hear continuously that within the law we were able to do this, that and the other. But there were ways around the law, and to find ways around in decent unjust laws is a salutary principle. Technical legal polemic, as we submit the organised profession was engaged in today, which seeks merely to exculpate lawyers, on technical basis, for example positivism is not an answer to the community out there. This is not a court of law where one tries to argue whether realism, positivism or any other "ism" ought to have governed the actions of lawyers of the past. We’re being asked by the communities out there, why, as people who were skilled in law, people who are educated in law, who spent several years doing so, in whom an investment by the community was made, we've failed the community out there. We are not asked to explain ourselves within a narrow context, a context which we set for ourselves here, and that with respect did not come through.
One wonders whether in fact there was a genuine desire to look introspectively at the operation of the organised profession or whether it was simply a review of the minutes to find exculpatory resolutions and the like. I am not suggesting that members of the GCB and ALS who are here to present their views, I am not criticising them personally, I am talking about the nature and tenor of the submissions and that needs to be made clear. The expressions of regret and apology, such as they were and which came through today, from our point of view seemed to be lost amidst the endeavours to find defences and justifications and rationalisations for their positions.
What the ALS for example needed to do was to say when Priscilla Jana was served with a banning order did they the next day stand up and express their outrage? Did they the next month in the De Rhebus have an editorial condemning that? Those are the issues - not whether their minute books reflect a resolution that was passed behind closed doors.
And finally to suggest that it is a matter of sadness to the organised profession that NADEL and BLA was formed and that it is a matter of some amazement to them that we could not have come to their doors, is to deny the history and quite frankly is an insult to us. The only reason that you had organisations such as the Democratic Lawyers Association, Democratic Lawyers Congress, Community Law Centres and the like, throughout the country, was because the organised profession was not a home to people who sought to use the law as a terrain of struggle, who sought to be legal activists and no amount of pointing to minute books is going to change that from our point of view.
Priscilla Jana mentions, that letters were written to her, explain your action of saying "Aweto" in court. No similar letter was written to her expressing any sort of sympathy for her banning order. Nor was, it appears clearly, any letter written to her expressing sympathy for the fact of her personal circumstances and of her circumstances as a practitioner that couldn't do - that was disallowed from fulfilling her functions because of the laws of the time. Those are the acid tests.
So yes, the apology certainly came through, one notes that, one is happy that at last there has been this apology, but with respect from our point of view what was required was a bearing of the soul and saying to the community at large out there that the legal system failed you, not because of notions which in the context were inappropriate, like positivism, like the independence of the judiciary. A lot has been thrown behind that concept.
And where judges who make clearly racist statements in court, are asked to come here and explain that it is said to us that we are impacting upon their independence. With respect that's nonsense. There is no way that their independence to make judgments, to consider facts before them, to give decisions can be impacted upon by them being asked to come here and explain to the people out there why there was a failure.
The magistracy is not here! Absolute silence from the magistracy and that is an indictment on the magistracy. There was also notable, there was a conspicuous absence of criticism by particularly the Law Society against the judiciary and the magistracy, and that speaks for itself to the extent that in a critique of the past one loses sight of the role of the magistracy and judiciary, and one seeks not to raise their defalcations, that on it's own is an indictment.
So we're concerned that there has been great endeavours to be defensive, to rationalise and to justify activities. We think that more purpose would have been served if in fact, there was an opening of the hearts and there were apologies which were unqualified. Thank you Madam Chair.
MS SOOKA:: Thank you Mr Hussein. Vincent do you....
VINCENT:: I am not to sure you really want to hear me at this late hour, except I do want to make just one or two brief points. The first really goes to reiterate the position about the magistracy. We have said much about the judges not being here, I don't think we've said too much about the magistrates not being here, and I think the submissions today by Priscilla Jana, Lee Bozalek and others highlighted, particularly the students also, the particular role that the magistracy displayed under apartheid and the extent to which, in many instances it was the coal face of the apartheid legal system at it's worst. Honourable Chair we hope that in your further deliberations you would point those questions to the magistracy so that when you do your report you would be able to get a much more broader picture from them.
One of the issues raised - I want to comment on the submission by Professor Lewis, one of the concerns raised was a lack of analysis on the extent to which the State's budget for particularly white universities impacted on the type and the nature of education given to white students as opposed to black universities and what that meant, and that really to a large extent those who lectured at the white universities and those who went to the white universities were more than just privileged, they were able to benefit in a very real way by State resources as opposed to what happened at black universities. And today we have a legacy of that in that we have understaffed, we have over-subscribed student numbers at HBU's, we have a serious lack of resources, so h white universities need to introspect and see the extent to which they benefited from the allocation of State resources by the apartheid State. Nowhere does it ever come across to the extent to which they were prepared to share those resources with any of the other universities, and even today despite those disparities there's still no real commitment to the sharing of those resources.
I thought one should also ask the extent to which there were legal academics who collaborated actively with the apartheid machinery, and we hope that you would point those questions to the universities, to the extent where within the ranks of the academia there were those who advised the State, who collaborated actively with the apartheid State so that our investigation is a little more penetrating with regard to the academic world.
Without the restating or echoing what my colleague and comrade has said with regard to the ALS and GCB, I think it would be fair to say that there was a greater sense of contrition by the Law Societies and the Bar today, and appropriately so, not that the Bar Councils were in any way less complicit than the Law Societies, but today we really saw some measure on their part for contrition.
There's also been a failure to ask of the Bar Councils the extent to which they themselves are part of a process of transformation and restructuring. They've always put up the argument that they are voluntary association, they're not statutory, and therefore they are not the subject of restructuring. But it is obvious that they do exercise certain measures in which they attempt to regulate the advocates’ professions, which they admit, to some extent. Therefore, the question arises the extent to which they themselves should be the subject of restructuring, and not just the Law Societies, and there has always been a hesitance on our part, as we perceive it in NADEL by them to be the subject - it is not just a question of writing a letter to Advocate Phosa, it's more than that, the extent to which restructuring and transformation of the Bar is an integral part of their process and their agenda for transformation.
One of the issues that did really raise concern with the Law Societies was the notion of the Oath of Allegiance put up and that is all lawyers we took an oath of allegiance to the State, we certainly did not take an oath of allegiance to the apartheid State. If anything, we took an oath of allegiance to undermine the apartheid State, and I think a distinction must be drawn. That's why we distinguish ourselves from the establishment lawyers or the lawyers who operated within the Law Societies under the particular milieu and ideological context that they did. We worked with these lawyers, we used the cause as terrain of struggle, unashamedly, and to that extent would continue to use the cause as a terrain presently in furtherance of the principals and the values of the new constitution.
It's getting late, but one of the lessons that we must raise is that when mention was made of sentencing and bail, and I think it was ironically Priscilla Jana who herself who serves on the justice portfolio committee now. What were those lessons of the apartheid State? Sentencing policies by magistrates, bail being refused by Attorney Generals, and yet today we see before our very new parliament legislation to undermine those very values that we've said that we were fighting for. And as lawyer’s bodies, we have to go before this parliamentary portfolio and to remind them of those constitutional values, of those values where we believe that minimum sentencing really impinges, as we understand it, on the independence of the judiciary which we hold dear.
On bail and the crisis and the hysteria in which the State responds to crime in the country, is to curb bail and in the same time is to undermine some of the values of the constitution. These are the lessons we now learn and if we don't state this, then really what we say is that we've learned from the past, but right under our very noses in the past few weeks, we have seen our democratic parliament debating how best to curb these fundamental values. So we raise it, because it is of concern to us, and if we learn to, if we are to learn anything from the past it must inform what we do today.
We must just say that it was, I think from NADEL we were - we must place on record our deep gratitude to the students. It was really refreshing, it was inspiring after a day of sometimes, somewhat uninspired contributions to hear the students with such commitment and we are quite confident that the legal profession is going to be bequeathed into good hands with that commitment and that thinking, and I think certainly a profession that we are going to be proud of notwithstanding the difficulties that we now face and have faced in the past. We thank you Honorable Chair and the Commission.
MS SOOKA:: Thank you. Questions?
HEARING ADJOURNS
ON RESUMPTION ON 29 OCTOBER 1997 - DAY 3
MS SOOKA:: Sit down! Could I ask you to state your full names for the recordsplease?
KLAUS PETER CONSTANTIN OTTO VON LIERES UND WILKE:: (sworn states)
MS SOOKA:: Mr Von Lieres, we would like to welcome you to this hearing of the Commission today, we appreciate the fact that you have taken time to be part of this hearing. You can proceed.
ADV VON LIERES:: Thank you. Madam Chair I have prepared a short submission, I'll make a copy available to Miss Lou, if you think it is valuable enough you can photostat it later. My apologies for addressing you as Mr Chair in the papers, I didn't know Madam Chair was going to preside.
Madam Chair, I was an Attorney General since 1981 and was the first Attorney General appointed to the then newly established office of the Attorney General of the Witwatersrand local division in 1983. That appointment I relinquished some two and a half years ago in May 1995.
My presentation to you will draw mainly on my own experiences over some fourteen years in that capacity. They may not necessarily be the same as the experiences of the other Attorneys General due to the fact that local circumstances differ as between the Attorney General and the Attorney General’s area of jurisdiction.
I'd firstly like to make the point that, when I joined the Department of Justice, the prosecution as a career option in the Magistrate's Court was non existent. It only became a slow developing career option at the insistence of mainly the Attorneys General of my time who persisted in their standpoint that prosecutors in the Magistrate's Court should be entitled to choose to stay in the prosecution, if they so wished.
As far as prosecutors in the division Attorneys General is concerned, this of course was never an issue, but it is a historical fact that they faced a truncated career and that advancement to the bench was not for them.
In those days Madam Chair, the prosecution in the Magistrate's Court was considered simply as a stepping stone to an appointment as a magistrate or to being absorbed or transferred to some other section in the Department of Justice. It was recognised and it served as a training ground for the many advocates and attorneys who went into private practice and in fact quite a number of our judges also started their careers as prosecutors. Because prosecution had not been identified as a career option in those days, prosecutors in a Magistrate's Court by and large were more prone to follow the lead of a magistrate than to act independently. Naturally, they were also rather inexperienced as a manpower crisis started to develop from the 1960's onwards. People of colour only appeared as prosecutors from the middle 70's onwards.
Having identified the problem we set about establishing the prosecution as a professional career within the Department of Justice with the help of head office and with the help I must immediately say, of many Chief Magistrates who recognised the necessity that the prosecutor should be independent, that is professionally of course.
To succeed we had to change the mindset and nurture the concept of professional independence. In this I believe we have succeeded to a large degree. However, Madam Chair, the prosecution was never an ideological body. It was never ideologically schooled or trained, on the contrary, it consisted of people of widely divergent backgrounds and political beliefs; of people of differing religious persuasions with some who enjoyed job satisfaction and others who saw it simply as a means to gain some experience before they branched out into the private sector. And may I by way of illustration mention to you that we had prosecutors from all universities in the country whether it was Wits or Rhodes or Stellenbosch or Cape Town or wherever they were all there, Unisa and so forth. The perception being promoted Madam Chair that the prosecution was a monolithic organisation that one-sidedly supported apartheid is, of course in my respectful submission, utter nonsense. What is true, however, is the fact that the prosecutorial professional independence developed much faster in the more densely populated areas such as for example the WLD and elsewhere as a result of the concentration of numbers and easier accessibility. The same degree of professionalism was not readily realised in the rural areas for obvious reasons. Police were still employed as prosecutors in some outlying rural districts. We the WLD exercise the hands of policy and management system which enabled us to develop the prosecutors faster than was the case in the rural areas.
I now want to deal with the prosecution of security offences. Now, Madam Chair, the prosecution of security offences constituted a very small percentage of all the cases that the Attorney General dealt with on a daily and annual basis, probably all in all it never constituted much more than some three or four percent of the total volume of cases prosecuted if that much. Seen against the background of the small volume of security prosecutions the vast majority of prosecutors never ever prosecuted in such case, not to mention the fact that they never saw a docket related to such cases.
In makings wild statements as I've read that the prosecution supported apartheid, generally Madam Chair I believe sight is lost of the fact that security legislation, such as for example, the Suppression of Communism Act of 1950, provided that matter such as restriction or banning orders or the enforcement of the non publication of certain banned persons names and utterances was dealt with administratively by some official appointed in terms of the Act. These numerous activities which undermined and impinged on the freedom of the individual were dealt with administratively and not in courts of law by the prosecution or by the prosecution. In fact, Madam Chair, they fell completely outside the scope and domain of the function of the Attorney General. The prosecution would only be called upon if some order or other, some administrative order or other in terms of any particular Act had been contravened, whatever the case may be. I mean I don't need to remind you of prosecutions for contravening banning orders which we all know about as such an example - it's only in that situation that the prosecution would enter into upon the scene. There were not too many of these prosecutions either and they became more and more infrequent as time went on.
Madam Chair I can assure you that the day to day working of an Attorney General did not concern itself with plotting to uphold the State, nor with plotting to destroy the opposition. There simply wasn't time for such luxury, bearing in mind the fact that we were virtually continuously short of staff and of the necessary means to perform our function properly.
The Attorney General's time went into administering appeals, attending to numerous representations, reviews and prosecutions and so forth. Most of the victims we represented in court were black. Let me say immediately that in endeavouring to provide the service expected of it the Prosecution found itself between "skiller en keruptes" as the liberation struggle continued with increasing intensity. The justice system had become one of the major targets in the Revolutionary War the country found itself sucked into in the battle for the mind of the population. Revolutionary Propaganda such as, and I quote "white minority racist legislation to oppress the masses or death to the traitors" described part of the Propaganda War and the ongoing attempts to discredit statutory enactments aimed at combating security related offences.
The Propaganda was also aimed at discouraging cooperation with the judicial system and met with a marked degree of success, so much so Madam Chair, that eventually we all know people's courts started operating in some of the so-called ‘liberated areas", so much so Madam Chair, that no-go areas were established where ordinary law and order could not be maintained.
Similarly intimidation of witnesses which was a liberation movement strategy led to provisions being enacted by the government of the day to detain witnesses which in turn again fueled anti-justice propaganda. We have here a typical example of action and reaction. The mainly psychological warfare directed against the State and the State's countermeasures or absence thereof obstructed efficient delivery by the Prosecution and the Criminal Justice System. In this process as we all know, much credibility was lost.
At the same time Madam Chair, Attorneys General were bound to uphold the legal system and had to discharge their duties without fear or favour. All applied the same law and strove to maintain their professional independence each in his own inimitable way. For example my ex-colleague from Natal, on behalf of all of us in those days, protested the previous ministers' release policy of prisoners as the setting free of so many prisoners would only impact negative lybeyond the already weakened prosecution.
The virtual diatribe being conducted on an on-going basis against former members of the prosecution and its carry over incumbents by people who should really know better is to be decried in the strongest possible terms. Allegations, Madam Chair, such as that, " Generally Attorneys General used their powerful discretion in political trials and security related cases to uphold and strengthen the apartheid system" is just with respect so much codswallop.
Attorneys General dealt with cases referred to them. We also instructed investigations into many matters of which we read in the press and on television. I myself as an example was accused by the then Minister of Constitutional Development in 1988 that I was undermining the government because I refused to prosecute squatters in the Katlahong area. I invited the Minister to do what he thought he should do if I was a person who was undermining the government, but to date I haven't received a reply.
Now Madam Chair and the WLD, we seldom prosecuted Group Areas contravention's and our evidence before the then President's Council we believe played an important role in them accepting the status quo.
Another perception which I think needs to be addressed is the fact, or the allegation that Attorneys General did the bidding of Ministers or the Government of the day. The fact of the matter Madam Chair is that it is the duty of an Attorney General to receive representations from the public at large, from anybody in fact who wishes to make representations. It's the public’s right, it's a ministers right to make representations to an Attorney General in a particular matter. We all know that representors do make such representations in the hope that they can persuade the Attorney General or for that matter his delegatee in the district, the Senior Prosecutor, to take a decision which would be favourable to the representors cause. This is quite normal, it's accepted. There is nothing that prevents politicians from approaching an Attorney General and making representations to him, but the acid test is how the Attorney General reacts to such representations.
And I want to say to you that as far as my staff and I were concerned we looked at the facts and not at the ideology of every representation that was made and we came to a conclusion of that particular basis and not because we supported the one political policy or the other.
Now let me illustrate how these representations actually worked. Prior to the last all white election I was approached by representatives of each political party, independently of course, asking me to institute some prosecution or another in their area, in their constituency in terms of the Group Areas Act. Now, these requests were not acceded to. Representors Madam Chair, tried to use the prosecution to promote their own ends and that is their good right to do so. It is also the duty of the prosecution not to allow itself to be used. For that reason Madam Chair being possessed with an unfettered discretion and being independent is vitally important in the discharge of the function of the Attorney General. It is therefore a pity, and my attitude about this is well known, I believe that it has been decided that the Attorney General’s independence should again be restricted by the introduction of the National Director of Public Prosecution who may as the constitution stands now, in fact be a political appointee without any legal qualifications whatsoever. I'd submit to you Madam Chair that society is best served by having independent Attorneys General.
As I've said in the Witwatersrand we did not while our time away plotting strategies to uphold the government or to destroy the opposition. We simply didn't have the time for that. Apart from normal crime we had a large practice concerned with white collar crime. We had a special commercial section which had been established to deal with that, so too Madam Chair we had a special fraud unit where we trained police investigators and prosecutors who specialised therein and were quite successful with that.
Madam Chair, on the matter of training we presented numerous lectures and ran training ventures throughout our area of jurisdiction to prosecutors and to the police. And I think it's important to say that our training files will show that we consistently emphasised that all action had to be conducted within the framework of the law and certainly not beyond the framework of the law. These principals were consistently applied.
It is naturally that we issued certificates preventing people from being released on bail. As you well know this extraordinary power that Parliament gave to the Attorney General drew a lot of flak, and eventually it was whittled down and finally removed. I think the first signs of the whittling down came with in 1977 Criminal Procedure Act and then subsequent inquiries. I must say I wasn't sorry to see it go. It was not frequently applied in the WLD but there was the odd case where one was forced to issue a certificate. And may I say that I believe in all those cases we issued a certificate that a court of law would have refused bail in any case. Our certificates were not issued on the basis that this is an ideological opponent of the State or whatever and therefore this person had to be detained but were issued on the facts of a particular case.
Similarly Madam Chair we also from time to time ordered the detention of witnesses and may I point out often at their own request. Witness protection programmes were not in place then, that came about only later.
I am here today Madam Chair, because I believe that it needs to be said, that we owe a debt of gratitude to many of the fine prosecutors, past and present who discharged their prosecutorial task with integrity, courage and professionalism. I believe that they have been severely maligned by unfounded generalised propaganda such as that, "the prosecutorial services became a major instrument of repression", that in my experience is simply not the case.
The suggestion made in another document that Attorneys General use their powerful discretion for political trials, in security related cases to uphold the apartheid system is equally untoward. We took our decisions to prosecute or not to prosecute on facts and not on the basis of ideological conviction. Had the latter been the case, Madam Chair, I can assure you that our reputation as competent prosecutors, which incidentally many of us cherished, would have been severely dented.
The idea that we prosecuted in security related cases to strengthen the apartheid system and to uphold it is not supported by the objective facts, at least in respect of the WLD and I want to believe in respect of all the other Attorneys General as well. We prosecuted because an offence was committed and because there was a sufficient case made out. Let me tell you Madam Chair that in the WLD we virtually reinvestigated every case to make sure that the facts would stand up o the acid test of cross examination.
In conclusion Madam Chair, bearing in mind the constraints of our function, which embraced the duty to prosecute in appropriate cases there is no substance to suggest that Attorneys General played an active role to keep apartheid standing. We discharged our functions dispassionately and objectively under very difficult and trying circumstances.
What we did is a matter of public record, a few examples will suffice. We prosecuted security police officers such as Van As in 1984, we prosecuted police officers for the murder of drug addicts such as Ferdie Barnard and his colleague Sergeant Botha. We prosecuted persons of the ilk of Derby-Lewis and Walus for the assassination of Chris Hani. We prosecuted the AWB for their bombing spree in the 1994 election campaign and for other deeds of terror and murder they committed. Members of Parliament didn't escape our scrutiny either and one National Party MP was prosecuted for election fraud. Mrs. Mandela was also prosecuted in the Sepei matter. We also extradited white collar criminals such as Rademeyer of Eskom fame or Mr Schaeffer of the Trustbank fame back to Johannesburg to stand trial. I've just mentioned a few examples. We prosecuted Barbara Holden, the Spargs, Helen Pastoors and many other which I don't think is necessary to list the number of prosecutions because I just want to make the point but I believe it's a matter of public record that we acted even-handedly.
I submit that the conduct and execution of our function does not permit the inference that the prosecution was either biased in favour of the State or against the State and it's a pity Madam Chair that this widely-held perception exists. I look forward to the Truth and Reconciliation Commission finally laying this ghost to rest. I thank you.
MS SOOKA:: Thank you Mr Von Lieres. Hanif.
MR VALLY:: Mr Von Lieres we are at a slight disadvantage since you didn't give us your written submission beforehand, but we are going to make copies of it now. I have some questions to ask you while the copies are being made.
Mr Von Lieres, at some point, I am not sure whether you still hold this position, but you were either the Commander or the Colonel of the Seventh Infantry Regiment as well as the Attorney General. Does not your position as Colonel/Commander of the Seventh Infantry Regiment compromise you in your independence as Attorney General?
ADV VON LIERES:: Actually I am still at present a Brigadier and not a Colonel, and Madam Chair, Rommel was a Field Marshall but that didn't make him a Nazi, did it?
MR VALLY: That's a question of opinion. The question is, did it not compromise you in your independence to act as an Attorney General?
ADV VON LIERES:: I don't think so. In fact, Madam Chair, it may interest you to know that I prosecuted certain Defence Force Generals for fraud here in the Regional Court in Johannesburg.
MR VALLY: Although you were a Brigadier in the DefenCEe Force?
ADV VON LIERES: And Attorney General.
MR VALLY: Let's go on. The General Council of the Bar states in their submission that whilst the Attorneys General were supposed to operate free of political influence, there was at all times a widespread belief that they did not do so. What's your comment on the submission by the General Council of the Bar?
ADV VON LIERES: Well I've just said to you, in my submission that it is part and parcel of the function of the Attorney General to receive representations. We work on a case by case basis, we don't work on a policy or an ideological basis, and in respect of each case, each case was decided on its own merits as to whether prosecution should or should not be instituted. I've already said that Ministers did make representations to us from time to time in connection with specific cases. One actually once asked me whether I could give him a guarantee that the accused would be convicted if the prosecution continues. I told him I don't issues guarantees, I am not an insurance policy that pays on demand. It's not my duty to issue guarantees. My duty is to prosecute if I believe that there is a prima facie case which means that a reasonable court would possibly convict on those facts unless there are other persuasive reasons, it is my duty to prosecute. So my answer to you is the perception which the Bar testified about was not substantiated during my term as Attorney General in any single case that I'm aware of.
MR VALLY: You talk about the independence of the Office of the Attorneys General, yet we all know that from the time when Telman(?) Roos was Minister of Justice, I think way back in 1935, until the impending democracy, the Minister of Justice could substitute any decision of an Attorney General without even the public having to be told about this. How could you say then that you were independent?
MR VON LIERES: Indeed that is so, and that situation persisted until the 1992 Act of the Attorney General became accepted by Parliament. The fact is, Madam Chair, that a convention existed that the Minister of Justice does not interfere in the decisions taken by an Attorney General. There are numerous examples on file where representations were made to the Minister to overrule the decision of the Attorney General. I had quite a few in my old office on file which are readily available in which the Minister wrote back to the representor saying that he doesn't interfere with the Attorney General's decision. But the fact is of course, that technically and legally he is obligated to exercise a discretion if representations were made to him that the Attorney General didn't exercise his discretion properly. The fact that he didn't do so, doesn't mean that he complied with the law. He could have been taken to court and compelled to do so, but in practice it didn't happen.
MR VALLY: Well, maybe I should then ask you about the matter of Mogale? We have a submission from Ms Satchwell, the time she was an attorney, but now she’s Justice Kathleen Satchwell, where the AD no less had found that confessions had been obtained under torture and the Attorney General did not prosecute any of the persons who are responsible for their torture. Now what I'm pointing out to you, I know you may not know the specific case, but what I am pointing out to you is here where the AD has made a ruling, the Attorney General has not prosecuted.
MR VON LIERES:: I'm not aware of the detail of that case, I don't think it's a case that emanated from the WLD, if a case like that had come to my notice, I would have investigated it with the view to a possible prosecution, but I have no recollection that a case like that was ever referred to me or similar cases.
If I may Madam Chair, perhaps to assist you, I received during the last year as Attorney General something like three and a half thousand dockets per year involving complaints against police for assault and murder and what not. We kept some statistics and if my memory serves me well, in over fifty percent of those cases prosecutions were instituted against the police. Many of these cases involving assault, murder of course affect human rights and the victims rights not to be assaulted or have his physical integrity violated, our statistics indicated that we had a success rate of roughly fifty percent in all the cases we instituted prosecutions, so I'll say roughly a quarter of all the cases were successfully disposed of at the end of the day. So I offer those statistics simply to illustrate a point which many people believe that Attorneys General just simply sat back idly and allowed the police to commit the one offence after the other, and that is in fact not so. And may I add to that that most of these cases, if not all of them, were in those days investigated by Police officers themselves.
MR VALLY:: So if this is the perception, this is your position, why is it that the Truth Commission has had this myriad of cases where countless numbers of Police forces, members of Security Forces have come before us admitting to tortures, murders and the Attorneys General did not prosecute in any of those matters?
MR VON LIERES:: No, I think the answer is quite obvious Madam Chair, if cases are investigated and evidence under oath is submitted to the decision-taker and that evidence is false, the decision-taker will obviously take a wrong decision because the wrong facts were placed before him. What's happening now, is that these people are now coming out of the wood and they're now admitting that they lied, cheated and deceived in the past. I mean, the same can happen to the Truth And Reconciliation Commission, that the witness can testify falsely under oath, you may believe him and you can come to the wrong conclusion. The same happened obviously to the Attorneys General.
MR VALLY:: Were you ever in any way subject to any political direction regarding any of your prosecutions?
MR VON LIERES:: No. Naturally the politicians in many cases didn't want me to prosecute, but that wasn't off putting enough to stop the prosecution and not to institute the prosecution.
MR VALLY:: You talked about some cases where you prosecuted members of the Security Forces. You started off with Van As in 1984. What happened between the whole period before 1984, what happened when you were in the Attorney General's Office, I suppose it wasn't established then?
MR VON LIERES:: It was established with effect the 1st November 1983.
MR VALLY:: But you were Attorney General since 1981?
MR VON LIERES: Yes, but I was appointed for Kimberley and I only came to Jo'burg on the 1st of November 1983. I just took over the post.
MR VALLY:: There have been submissions by individual attorneys as well as by legal organisations that there has been a consistent failure to prosecute members of the Security Forces, especially regarding allegations of assault on detainees.
MR VON LIERES:: Again, obviously we received representations of offences committed, these representations, the result of the representations are reflected in the three and a half thousand dockets that were submitted to us for consideration, and I've already told you that we only had sufficient evidence to prosecute in about fifty percent of the cases. So obviously where representations were made we couldn't accede in each individual case to prosecute because we also had a duty to ensure that we had a minimum amount of evidence which was of the quality that a reasonable court could possibly convict on what we had in the docket, and naturally there would have been cases where people wanted people prosecuted , but where we had an insufficiency of evidence. Whether, because people lied to us, or because that evidence wasn't available I can't tell you, but the fact is we did prosecute in cases and we did not prosecute in other cases.
MR VALLY:: The perception was that the Attorney General's office and the Security Police acted in collusion, and to take it further, certainly in the Transvaal, the perception was that whenever there was insufficient evidence, the detainees were detained ...(tape ends)
ADV VON LIERES:: …..was solely a police matter which was conducted in terms of Section 29 of the Internal Security Act, the Attorney General has absolutely no say about that, until this Act was changed or amended - when was this- ’93 ’94 around about there. Before that the Attorney General had absolutely no say and it was at the discretion of the Commissioner of the Police how long a person would be detained under Section 29. What happened during those Section 29 hearings, I here what you say, I have no personal knowledge of it. The fact of the matter is however, Madam Chair, that we the Prosecution never used, as far as my knowledge goes in the WLD, any Section 29 statement made by any witness, by any accused as evidence against them, because the wording of Section 29 indicated that that could never have been a freely and voluntary made statement.
MS SOOKA:: Mr Von Lieres, perhaps I could step in here. I think the work of the Commission essentially is to investigate what happened during the past, and to try and learn from that lessons which enable us to go forward without gross human rights violations occurring again. I’ve listened to your presentation very very carefully, and I’ve listened to your responses to the questions, but nothing that has come through has seemd to pierce the veil that you are in a sense surrounding yourself with. But out there, in the world that lawyers operated in, things were going wrong.
There have been many people who have come forward before the Commission over the last two days, who’ve come to tell about their experiences at the hands of the justice system, and to talk about the fact that their perception was, that the Attorneys General were there to serve a particular political order. Now, I don’t think we want you to feel that you need to be defensive about it, but I haven’t heard you say anything about why it is that people found it necessary to establish People’s Courts. Why they believe that the justice system didn’t service black people, why it was that there was such an extraordinary reliance upon the bail certificate which the Attorneys General issued and which up until a certain judge changed that position, the reliance upon that bail certificate, Attorneys General very often were in particularly in political cases refusing bail. The fact that there was an extraordinary reliance on the evidence given by police. How all of these lead to the perception that something was wrong at the level of the Attorneys General. I haven’t heard you say that at all. All I’ve heard about is what a wonderful system the office of the Attorney General was, particularly in the WLD.
Now we are not here to find people guilty, we are here to talk about what it was that went wrong, and I would hope that when you answer the questions, that we could try and have some kind of sense or analysis of why it was that people have those perceptions. Lawyers who practiced in the system have come here before us and said that. The Bar Council who cherish their independence have come forward and say so, so could you please in the vein of what we’re trying to do here, which is to look at what went wrong, because all of us, the role players in the legal system have to accept some kind of responsibility for the fact that things went wrong.
ADV VON LIERES:: Yes. Thank you Madam Chair. May I first of all say I never suggested that it was a wonderful system. I said to you that we operated within certain parameters. May I make the point quite clear, the responsibility to investigate and prevent crime was not that of the Attorney General, that was the responsibility given by law to the police. We landed up with the end product of the police investigation. That end product either indicated there was a case which a person had to answer or not, that end product indicated that something went wrong or something did not. Obviously things went wrong if we see what the type of evidence is that comes to the fore, obviously things went wrong otherwise Van As wouldn’t have been prosecuted, but if the information and the evidence is not submitted to the Attorney General indicating further wrongdoings of a serious nature there is very little that he can do about it. He is bound by a system which has a division of functions. Now I am not say that everything went right with us, we also made our mistakes. I am just saying that when you judge the Attorneys General’s contribution to the legal system, you must appreciate it that we operated within certain restrictions.
Outside agencies provided him with information. That information was either wrong or right. If it’s an affidavit, he’s got to accept the affidavit. Years later it turns out the affidavit was a lie, people come and ask for amnesty, we’ve taken a decision based on an acceptance of the correctness of the affidavit well then obviously we were lied to. It’s a fact, and because we were lied to we took a wrong decision. As far as People’s Courts are concerned, obviously that was a substitute and the demonstration that the existing courts didn’t function efficiently. That’s common knowledge. I readily admit that the existing courts did not function efficiently, and I think if I have to be sorry for anything I’m specifically sorry to the general public that I wasn’t able to give them a better service. That I think I can say I am sorry general public.
But People’s Courts were the response of the Revolutionary War, it was a strategy, it fell outside my domain. I couldn’t prevent people who are dissatisfied with the system from establishing their own courts, and by no means do I say that everything was like Alice in Wonderland in the Attorney General’s Office, I’ve never suggested that, but some thing’s you can control and other things you cannot control, and there were many things as I’ve tried to indicate to you, that we were fed with which we accepted at face value, which perhaps we could have been more critical but in security cases we lent over backwards to make sure that the facts presented to us were in fact correct. So, we know what’s happened. Everybody knows what happened and everybody now only starts to realise what the extent of the misleading was what went on. That is so.
MR LAX: Thank you Chairperson. Mr Von Lieres in the period between 1960 and 1994, at least 87 political detainees died in mysteriouss circumstances in custody. In the vast majority of those cases inquests found the police not to be responsible. You were the prosecuting authority. Did it not struck you as odd that over this period of time so many people were dying in detention, in mysterious circumstances, where the police were consistently saying that it had nothing to do with us, and you were reviewing those dockets, and you were reviewing those inquests, why didn’t you do something more about it? Why didn’t you institute your own investigations? When I say you I mean collectively, I’m not saying you personally., please don’t get me wrong about ...(intrvention)
MR VON LIERES:: Well, no-no. Madam Chair, as you know many of these deaths in detention formal inquests were ordered. I think two of the better known one’s are the Timol case and the Aggett case, where formal inquests were ordered. Now there people had to testify under oath the ability to cross-examine existetd yet the magistrate made certain findings. Now I invite you today to go and read up those records, and ask whether those findings on the facts before that presiding officer was justified or not. If people now come to the fore and say, no but I actually deliberately murdered this detainee, that is not what was the evidence when the enquiry was made, and when the enquiry was held and the trouble we have now, is that we now actually get evidence that shows that people lied under oath to courts, to enquiries and the result of that obviously was the miscarriages which you’ve indicated by alluding to the 87 deaths in detention.
We were very aware of the fact that if a government fails to act within the law there is no reason whatsoever why the citizen should have more respect for the government, than for its opposition, and in fact Madam Chair, many ..(recording stops)
...(tape recommences on side B)
....speaking for themselves.
(d) According to the current feeling of our membership the aforesaid colleagues whose associations have been used by the apartheid regime, are still hoping to have the second chance by requesting the present government to be at their side so that, due to their illegitimacy acquired majority of their numbers they can entrench their position as the perpetual guardians and custodians of the organised legal profession to the detriment of the black and deprived minorities, despite the fact that they have benefitted unduly from the apartheid criminal legislation which made them the super human beings in the country where the indigenous people were looked down upon as non citizens.
(e). The Law Societies are still discriminating against their black members, e.g. the Transvaal Law Society’s annual presidential report for 1996/97. There is a list of the attorneys who passed away during 1996/97 Financial Year, in which only the names of white practitioners have been listed and that of the late Dr GM Dejay of Johannesburg has been omitted without explanation, when his death is still fresh in our minds since he only died in or about April 1997, and the sad loss that its members could not even attend .... (recording breaks)
This is just one example to show that an organisation of the members of the .......at the present moment ..... Now ladies and gentlemen this is one a very unexplainable omission of the of the law side of the Transvaal . We all know Dr Dejay, the founder member of the BLA, the Director of the BLA, ..... and Dr Dejay was the person .... of Mandela ... He's the one ...(inaudible). He was my mentor and therefore I suffered numerous ___ of course as to why the Law _. Of Transvaal omitted to take necessary steps __. It's a wonder, I just hope ___..
(f). Tape in inaudible
DR RAYNER:: ....noting that he had decided to suspend his appointment as Prosecutor with immediate effect. However, it appears after several days that the Attorney General and members of the unit and Board met and resolved some of their differences.
At about the same time, in August 1995, seventy members of the legal profession met in Durban to discuss what they perceived as a crisis within the criminal justice system, in the context of the serious Socio-Political conflict and violence prevailing in the Province. In their discussions they focused particularly on what they saw as the failure of the Office of the Attorney General to make an impact on the situation. They expressed the opinion that the Attorney General, himself, had exhibited a reluctance to vigorously investigate and prosecute those currently and formerly involved in the commission of serious political offences. Those at the meeting acknowledged the severe problems arising from the poor quality of police investigations, compounded especially in the case of the KwaZulu police by a biased approach to law enforcement and crime investigation.
However, they felt there were additional factors at work which we contributing to "the growing loss of confidence in the Office of the Attorney General and the ability of the incumbent to carry out his duties effectively and impartially". And here they were alluding to the incumbent's involvement in a previous investigation in 1989 and 1990 into inquiries into alleged police death squad activities.
There proceeded in September 1995 Parliamentary hearings into the Offices of the Attorneys General, and the Attorney General for KwaZulu Natal was one among others who gave evidence.
He was questioned extensively on decisions which his office had taken in a number of cases concerned with political violence or police abuses. It was a tense and in the end inconclusive exchange which demonstrated as much as anything the difficulty for a Parliamentary Committee in a short hearing to determine whether or not there is evidence of a pattern of improper decision making.
A little over a month later, the Attorney General proceeded to indict senior Military Police and political figures on conspiracy charges and murder charges in relation to the KwaMakuta massacre of 1987. As is well known the conclusion of the trial in October 1996, resulted in the acquittal of all of the accused, and the comments made by the presiding judge,in his ruling regarding the conduct of the Prosecution reopened the public controversy around the role of the Attorney General’s office.
Shortly thereafter, the Attorney General proceeded to decline to prosecuting a number of cases investigated by the Investigation Task Unit. The public controversy that ensued including involving the Minister of Justice raised in Amnesty International's mind, the importance of providing, finding out what solutions existed to resolve these kinds of conflicts to restore confidence in the effectiveness and impartiality of the criminal justice system, although I have to note that we were not in a position at that stage to assess fully the merits of the allegations made, involved in this controversy.
We proceeded with an inquiry earlier this year in KwaZulu Natal and among nbational level authorities and drew a number of conclusions from that inquiry, and I could mention in answer to any questions the range of organisations and individuals that were met with.
Some of the broad conclusions that were put to us applied to South Africa in general as well as to KwaZulu Natal. They included conclusions that the criminal justice system were in crisis because of various factors including low morale, poor skills and under resourcing as well as fragmentation of the prosecution service with experienced people tending to leave for private practice; the lack both of the publicly accountable accountability of the prosecution service and the availability of effective remedies when controversies arose; the inadequate resources, low level of skills, capacity and will in the police service which is responsible for investigating crime, compounded by the history of the political use of the police, under resourcing of policing in black residential areas and police reliance upon informants and extracted confessions; a lack of a strategic approach for the most part in the handling of crimes identified as national priorities, the further damage to the system caused by this lack of public confidence in it and consequent reluctance for example, to cooperate as witnesses or in other ways with investigation processes; the impact of political processes involving amnesty for perpetrators of political crimes.
Some solutions proposed already and already explored which were put to us and which appeared sensible to us included, re-thinking the traditional division of labour between the police and the prosecution service. Such a team approach involving cooperation at an earlier stage between police investigators and member of the Attorney General staff could assist in raising the quality of evidence gathered in preparation for a trial, particularly in a case involving complexities or matters of particular national concern.
Early close coordination could help preserve the chain of evidence, ensure proper legal guidance and a proper handling of witnesses in taking statements.
Secondly setting priorities encouraging the development of specialised skills in relation to priority crimes; sharing of information across cases so that linkages and patterns could emerge particularly where crimes crossed provincial boundaries requiring a national level solutions and investigation approaches. And I should mention in this regard tht it was frequently cited, the work of the current Attorney General in the Pretoria Office relating to the investigation of Third Force trial matters.
Thirdly, the ad hoc appointments of members of the private Bar as prosecutors in special cases such cases could include those where the accused persons hold positions of public responsibility and have a capacity to influence the investigations or prosecution proceedings. The special or independent prosecutors could be used in these cases, involving political or other sensitivities to help protect the independence of the decision-making process and the conduct of proceedings from real or perceived political or other improper influence. Thought will have to be given to where authority for these ad hoc appointments should be located, and the criteria used for appointments to avoid politicisation.
Fourthly, raising the level of skills and professionalism amongst the police investigators.
Fifthly, ensuring an effective balance in the proposed National Prosecuting Authority legislation between independence from political interference and accountability to the political process for the investigation and prosecution of crime.
All of the above considerations seem particularly important for KwaZulu Natal, where the politicisation of the police has been very marked, compounding the already considerable problems creating by their underlying lack of investigation skills and shortage of resources. These circumstances make close and early involvement by members of the Attorney Generals staff in the investigation process particularly necessary. However, Amnesty International concluded from it's enquiries that this approach was not encouraged nor were guidelines issued to our knowledge encouraging members of the Attorney General’s staff to look for patterns within and between cases and to develop prosecution strategies in the handling of political violence cases accordingly.
In our view the conflict which developed between the Attorney General and the Investigation Task Unit and Board seems partly to have arisen through differences in approaches to the investigation of prosecution of crime. By it's very nature the Investigation Task Unit broke down the traditional divisions of labour by providing police investigators with legal supervision and advice on an on-going basis.
Furthermore the unit following on the work of previous enquiries attempted to identify the networks and enabling mechanisms which they believed were authorising and facilitating the activities of individual killers, with a view to the eventual prosecution of these high level actors. The conflict in approaches emerged starkly in a number of cases, and I'll mention just one other than the Malan case. In one such case, in the State versus Romeo Mbambo, Brian Gino Mhkize and Israel Bongwane, the Attorney General had authorised prosecution of the accused on six counts of murder after refusing a request from investigators then attached to the Goldstone Commission to delay the prosecution to allow for further investigation into allegations made by the accused that they had acted on high orders. The three accused were part of a group of men who'd been trained secretly by the then South African Defence Force in the Caprivi, and later incorporated into the KwaZulu police ....(recording ends)
MR McNALLY: My area of jurisdiction was then Orange Free State. My appointment was definitely not political. Born in India, and remember Indians were not allowed in the OFS at that time for more than twenty four hours at a time, I was an English-speaking Rooinek, practising Catholic. None of these qualities suited me for a political appointment.
Until the passing of the Attorney General Act of l992, the Minister of Justice was technically entitled to interfere with my decisions. He made his preference known to me on occasion, but he always left the decision-making to me. I conducted my performance apolitically and independently of ministerial control.
Most of the work which crossed my desk dealt with run-of-the-mill criminality. This gave me scope to do what had attracted me to the Attorney General's Division in the first place, namely, to be a significant player in the fight against crime and a participant in the process of doing justice, which in this sense was according to the common law as between person and person, victim and criminal. Apartheid legislation was supported by the criminal sanction. Prosecutions arising from alleged breaches of this legislation were dealt with by me at the decision level. I continued a practice of my predecessor of insisting that Group Areas dockets and sex across the colour line dockets be submitted to my office for decision. The reason for this policy lay in the recognition of the sensitivity of such cases and the ability at my level to exercise a limited prosecutorial manoeuvrability and creativity, to adapt a phrase once used by Professor John Dugard concerning judges.
The fact remains however, that although I was able to decline to prosecute in certain instances, there were others where I did order a prosecution. It is also a fact, that many thousands of my fellow citizens passed through the magistrate’s court for Influx Control infringements, although I did not deal with these cases personally, they were handled by my duly appointed delegate to my knowledge. I take full responsibility for all prosecutions in my area of jurisdiction in respect of contravention's of apartheid laws.
I was aware of the suffering caused by these prosecutions. I've been a member of NICRO since about 1963, and during the State of Emergency in the 1970's, I served on NICRO'S National Council with Judge Goldstone and others. NICRO had credibility with affected communities. The fact the Judges and a Deputy Attorney General, as I was at that time, participated in NICRO, also gave NICRO credibility with the Police. NICRO was able to setup information centres where those whose relatives had been detained could discover where to trace and visit them. My prosecutorial function and my work with NICRO gave me insight into the massive problems that apartheid was causing. I do not hesitate to say that I regret the trauma and the suffering caused to my fellow citizens by prosecutions under apartheid legislation.
I want to move on now to another sector in my presentation which deals with police suspects, that is, cases where the polices themselves are suspects, because the TRC has heard tales of torture and abuse by the police.
When policemen are alleged to have committed crimes, it is the Attorney General’s office which decides whether their conduct requires prosecution, departmental action, or no action. The reason for this countrywide practice is that the Attorney General is in a better position to make an objective and professional decision than the local prosecutor who, particularly in small offices, works closely with the police on a regular basis. My view is, and always has been, that it is the duty of the police to combat and investigate crime, not to commit it. Because of their peculiar responsibilities, I believe that it is more morally reprehensible for a policeman to commit a crime, than is the case of a common criminal. Where the criteria for a prosecution are satisfied, my policy is, and always has been, to prosecute a policeman suspect. and I attach to my presentation a detailed explanation of what my criteria for prosecution are.
I have noticed in the media that certain policemen such as one called Benzein have applied for amnesty and had even demonstrated how they tortured suspects. Their stories revolt me. Tales of torture are often told in court, particularly by those who have made confessions. These allegations are meticulously investigated, usually in what is called a "trial within a trial". Judges do their best to get to the bottom of these allegations.
An important distinction needs to be made between being told such horror stories and knowing them to be true. They get investigated and if justifiable, prosecutions are instituted. Torture of suspects to get to the truth used to be legal in terms of Roman Law, in the old days. Today, it is illegally practised by bad cops in countries around the world. If they get caught out they receive no mercy from the prosecuting authorities, and most certainly not from me.
The way forward: South Africans have shaken the dust of apartheid from their sandals and moved on. The legal profession is known for its conservative approach, but its intellectual athleticism, particularly at the level of the judges, has allowed it to embrace the new legal order based on a human rights culture. The Attorneys Generals division is about to be structurally transformed by the implementation of Section 179 of the Constitution, which requires the appointment of a National Director of Public Prosecutions who will enjoy the power to review the decisions of the Provincial Directors, that is the present Attorneys General. It is idle, I would argue, to debate as to whether the Attorneys General oppose this or not, because the fact of the matter is that the Constitution now requires it and all of the Attorneys General have informed the Minister that we will fully cooperate with the implementation of the National Prosecuting Authority Bill. We fought it, and we lost the battle, and we are now going to cooperated with the victor.
The National Prosecuting Authority Bill envisages that prosecutors should be required to take the following oath of office:
"I do hereby swear (solemnly affirm) that I will in my capacity as National Director of Public Prosecutions/Director of Public Prosecutions/Prosecutor, uphold and protect the Constitution of the Republic and the fundamental rights entrenched therein, and enforce the law of the Republic without fear, favor or prejudice, and as the circumstances of any particular case may require, in accordance with the Constitution".
This oath is fully in line with my personal sentiments.
My prosecution staff is itself in the midst of major transformation from being mainly white to real representivity. In the lower courts in my area of jurisdiction black prosecutors, using that word generically, outnumber their white co-workers by 176 to 80. The pressure of the number of applications by members of previously disadvantaged groups for positions in the prosecution service at the Lower Court and High Court level is the measure of the greater acceptance of the prosecution service as an appropriate environment for employment.
The TRC has given the legal profession a forum in which to confront its past. I ask the TRC to send out a message of encouragement to the Prosecution Service to assist it to confront the present and the future with dedication and professionalism.
Now, Chair Person, that was my written document, which I make available to your members for distribution.
I'd like to touch on the presentation of Dr Rayner today. First of all I would like to say that I had no notice that Dr Rayner was going to even make a presentation today, until I arrived in Johannesburg last evening, and was shown a copy of today's programme by one of my colleagues. I did receive, from London, yesterday a fax of Dr Rayner's presentation, but it, I don't know whether I missed something in the fax, I was in quite a hurry to get off onto the road, but my impression is that it was not made clear to me that that document was going to be under discussion at today's hearing. So, I have come unprepared on that, but, although unprepared, that doesn't mean that I'm not in a position to answer some of the points that she has raised.
She starts with a quotation from something that the then President of the Natal Law Society, Mr Frank Sithole, said about my handling of the General Malan case. Mr Sithole is here today. I believe that that press statement by Mr Sithole was the most unfortunate press statement to have been issued. It is incorrect. Mr Sithole and I worked together on a Liaison Committee in KwaZulu Natal, which is supposed to liaise between the advocates and the attorney’s profession, and also with the Attorney General’s office. I believe he was chairing that Commission at that time, and I was gladly serving under his chairmanship. Unfortunately, before the statement was issued by the Law Society there was no liaison between those who issued it and myself. If there had been, I would have been able to point out the inaccuracies in the statement.
The statement by the Law Society was also issued prior to the finalisation of the written judgment of the Court, and I suspect that it was issued on the basis of newspaper reports, which is never a satisfactory basis upon which to condemn a fellow lawyer. I wrote to the Law Society, asking for an opportunity to address them as a body, in order to put my case to them, showing up the inaccuracies in their statement. That request was turned down, but I was then told that Mr Sithole would agree to meet with me. I then suggested to Mr Sithole that the content of our meeting should be put on tape, and he let me know that that was not acceptable to him, in which case I decided that I would proceed with the meeting with Mr Sithole anyhow, tape or no tape.
The next I heard from the Natal Law Society was that Mr Sithole now believed there was no further purpose to be served by meeting with me. So, although I have put my case to them on paper, I've not had the opportunity to persuade them that their press statement was wrong. Now let me tell you why the press statement is wrong.
It is alleged that I failed to call certain witnesses who would have promoted the case against General Malan and others. That is so, that I failed to call the witnesses, it is not so that they would have advanced the case against General Malan and others. I don't believe that Dr Rayner knows the position in terms of South African law whereby a judge can comment on the failure to call witnesses, and can indeed draw an inference unfavourable to one of the parties to the case, if a witness is not called. The judge in this case stated in the judgment that he was not drawing such an inference, though he did add that he could have drawn one if he had wanted to. The drawing of such inference is in no way a criticism of the Prosecutor or the Defence counsel concerned, it is just past of the balancing that the judge has to do in the case when coming to his final decision.
The judge could not have criticised me for not calling those witnesses, because the judge did not have access to their police statements, nor was he present when I consulted with those witnesses. So, he had no knowledge of what those witnesses were going to say if called, and therefore he was not in a position to criticise me. Furthermore, I've asked the Judge whether he intended to criticise me in his judgment, and he has said that he had no such intention. He did not intend to criticise me for not calling those witnesses. He just mentioned it in the context of the possibility of inferences being drawn.
I draw attention also to the fact that the Defence could have called those witnesses, and that the Judge could have called those witnesses, if either the Defence or the Judge had believed them to be in the interests of justice. Neither the Defence nor the Judge called those witnesses. I mention that as a comment, just as the Judge mentioned it as a comment, that I hadn't called the witnesses but I don't criticise the Defence and I don't criticise the Judge because those witnesses would have taken our case nowhere.
There is Appellate Division authority in the matter of State versus Kelly, I think it was about 1980 in the Appeal Court which says that the State has the unfettered discretion as to its choice of witnesses, and it goes on to say that the Prosecutor cannot be expected to call accomplices whom he may rather want to cross-examine than to examine as State witnesses.
This was exactly the position with regard to people like Luthuli. I interviewed Luthuli in the presence of Colonel Dutton. Now, Dr Rayner says she hasn't consulted with Colonel Dutton in this regard, but if she had taken the trouble to speak with Colonel Dutton, Colonel Dutton would have told her, if he was telling the truth, and I am sure he would have that he and I had jointly agreed, having heard Luthuli, that there was no point in calling him as a witness in the General Malan case.
Now that is just one of the examples of these witnesses I am supposed to have called and I didn't. What happened in fact here was that the press who were following the General Malan case, heard certain things being said by the Judge and his judgment, didn't know the true legal position and came to a misunderstanding that I was being criticised for not calling witnesses. In fact, the judgment shows I wasn't being criticised and the Judge says he had no intention of criticising me. So the misunderstanding was not an understanding, but a misunderstanding. The Law Society then got onto the bandwagon and criticised me in the press for not calling witnesses. That was an unfortunate manoeuvre on their part, and I hope one day that they will acknowledge it.
All of the other witnesses I can give you detailed reasons as to why they were not called, and in fact there is an article coming out in my University journal in which I give detailed item by item answers to all the criticism of me in the General Malan case. I conducted that case with professionalism and absolute integrity and if anybody says to the contrary let him say so at this forum.
We come now to other parts of Dr Rayner’s presentation. She has raked up a lot of things that have been thrashed out in seven hours of cross-examination of me at the Portfolio Committee in Pretoria - Portfolio Committee of Justice. The Masinga case was thrashed out from A-Z . The Romeo Mbamba case was thrashed out, the Portfolio Committee Members from the ANC side had access to the document which the seventy lawyers had put up and they cross-examined me on the basis of that document, so they were very well prepared, so that matter has been thrashed out in an appropriate forum and if we were to re-thrash it out in this forum it would take us days, and it would get us nowhere. Because so far as I know the Portfolio Committee on Justice has not made any adverse findings of Tim McNally in relations to any of the decisions upon which he was questioned in Pretoria - not one.
And another point to bear in mind is that people don't have to blindly accept the word of an Attorney General, if they are not satisfied with what an Attorney General decides, the relatives or affected persons can bring private prosecutions. There hasn't been a single private prosecution in any of the matters upon which I have been prosecuted. I suggest to you that that speaks volumes. My decisions were correct.
As to members of the ITU being marginalised I most certainly don't say that Dr Rayner is lying, I am sure she is re-telling the truth, but in fact it is not true. They were not marginalised. I worked as a team with the members of the ITB and the ITU at all times throughout the preparation and the presentation of the General Malan trial. Advocate Kunig, for example, used to pick me up where I was living in the morning, he would bring me to the Supreme Court, we would discuss the case all the way. He sat with me at the Bar, not in a gown, but he sat with me at the Bar as an investigator for the whole time that he was present in South Africa before going to the Hague. When he went to the Hague, Howard Varney sat with me every time the Court got into session, he passed me a constant stream of notes, many of which I disregarded but many of which I also took note of and used in my questions or in my argument in the final stages. We worked together night and day, weekdays and weekends. There's no question of the ITU or the ITB being marginalised. Dr Rayner you are absolutely wrong on that point!
As to the ITU being dissatisfied with my presentation of the State case, I can tell you that when the application for the accuseds’ discharge, I'm talking about the seventeen whose applications failed, the ITU and the ITB were delighted and I went to a social function with them afterwards and there was the greatest degree of camaraderie between me and my fellow Prosecutor and the ITU and the ITB. So this talk about them being marginalised is nonsense. The talk about them being dissatisfied with my work is nonsense. It's only when the case ended up in an acquital that the dissatisfaction emerged.
Now it has been said that I don't work sufficiently closely with the police, this is one of Dr Rayner’s complaints, in KwaZulu Natal, but we must remember that the General Council of the Bar had a complaint in its presentation to this very Committee, that in security cases there appeared to be a too cosy and close relationship between the police and the prosecution. Now we're damned if we do, we're damned if we don't.
My personal belief is more in line with the criticism of the Bar, my personal belief is that there should be a certain armslength between a policeman, whose function it is to investigate, and a prosecutor whose function it is to objectively present evidence in a court of law. That doesn't mean that they can't cooperate and work together, but there must be a certain distance, in my opinion. Also we have to prosecute the police as I have said in my presentation, and our ability to do so could be compromised if we became to cosy or close to individual policemen. So there are two sides to that story, and what I did in Kwa ulu Natal is what I was asked to do in Kwa ulu Natal, namely to provide this unique and special body, the ITB and the ITU which was the first time that I know of that a number of attorneys were appointed as a Board to supervise investigations and inter-political violence. my contribution that was asked for was to give Karl Kunig to that Commission to give legal input. I readily acceded to that request and he gave that input for as long as he was in South Africa until he went to the Hague.
Then I was called to Pretoria one day, by the Minister of Justice, I didn't know the reason. He introduced me to Minister Mufamadi and Minister Mufamadi asked me whether I would be so kind as to provide the ITU with a second state advocate, and he specifically mentioned Advocate Batoi as the person whom they would like to have. After consulting with my Deputy in Durban, I told the Minister that I would also allow Advocate Batoi to be seconded to the ITB and ITU which she was and she worked with them until their dissolution. So, Tim McNally did in respect of the ITB and ITU whatever was asked of him. And it's not as though the Police and the Prosecutor were totally separated in their investigations, in fact two of my staff were working with them as investigators on a full-time basis. So, we've played our part as we saw fit and as we were asked to do.
MADAM CHAIR:: Mr McNally, thank you.
May I just say before we get into questions, and I am going to repeat what I said to Mr Von Lieres, that the Truth Commission isn't actually trying to establish who is guilty in a particular instance. I think what the aims and objectives of this Commission are, to really try and understand what went wrong in a particular sector and particularly in the instance today, given the fact that we have all this amnesty applications, given the fact that we have now established from victims that gross human rights violations did take place, what actually went wrong with the different sectors within the judicial system?
On Monday we actually explored the question of the role of the judiciary. Yesterday every sector of the profession actually tried to articulate what happened in their history and where they think things went wrong, and I think that's the objective for us of this exercise, and I think we understand your need to put the version that was put forward by Ms Rayner in some kind of context and also offer your own opinion.
But I really want to stress that we, and I think I want to take you back to your submission, when you talk about the fact that our rules of evidence are there to minimise falsities, and I want you to think back to the evidence of all the policemen who've come before you, whom we now know have lied and perhaps you can begin to give some perspective of how that could have happened. I think those are the sort of issues that we are trying to address. The question of whether a National Director of Prosecution will actually assist this process to ensure that violations don't take place again, because whatever we say the Office of Attorney General has been regarded as being supportive of the Political Master of the old order. Now how do we ensure that that doesn't happen in a future South Africa?
Now that perception may be wrong and we heard from Advocate Von Lieres about his views of that and I think we want to explore those kind of issues with you.
MR McNALLY:: It's a difficult exploration Chairperson, because while I admire the work of the Truth Commission, and I supported it wherever I can, I believe that the Truth Commission has an incredible advantage over prior investigations, including my own into the Nofomela matter to which Dr Rayner referred. That difference is basically that whereas all that we could offer witnesses was the prospect of possible prosecution, what you offer such witnesses is forgiveness, indemnity from prosecution and freedom from any civil action. So I believe, while I don't wish to take away from the good work that has been done by your Commission, which I admire, I do offer that as a reason why you have had successes in areas where I for example have failed.
I take as one example, the case of the Fabians. We looked at that at the Harms Commission and I believe that Dr Fabian Rebeiro’s relatives were appreciative of our initiative in that respect, and we called General Joubert to the witness stand to explain why a certain person who'd been accused of those murders had had their legal defence funded by the South African Defence Force. And if you look at the record you'll find that General Joubert was very robustly questioned by myself in that regard. But we got near to the truth, but we didn't quite reach the level of truth that the Truth Commission has been able to achieve . So that's an important difference between then and now.
The other important thing to notice, is my comment in my presentation that the courts are not concerned with ultimate verities but their concern to make a correct judgment on the evidence available to them. Now that is an approach that we have inherited from Great Britain, and it's an approach that I have some difficulty with because I would like a greater emphasis on the search for the truth. However, I'm a very lone voice in the wilderness on this one, because I believe that an accused short be required to put his facts on the table just as the State witnesses are required to put theirs on the table. That of course infringes upon the right to silence which is enshrined in our Constitution, so it cannot be done unless the Constitution I amended. But I believe that centuries on from now lawyers will look back on our legal system and say how could lawyers of the 1997 be ...(tape ends) ....plea of not guilty as entered by the Judge. He doesn't have to put any version to the witnesses or even cross-examine any of the witnesses if he doesn't to, he doesn't have to gove any evidence at all. He can allow the whole trial to be debated on a one-sided view from witnesses who may or may not be reliable. Now, I don't believe in that, but as I say that's very much a minority view and I don't think I need plug it any further.
But it could be that our rules of evidence could be changed in order to protect against falsity, but in such a way that not so much of the truth is also thrown out with the falsity. But that is something that the academics would have to look at, maybe with assistance from the practitioners. You see in the past the courts were terrified that some little bit of hearsay evidence or some little bit of information that wasn't actually relevant to the trial would come to the ears of the jury and that they would, being laymen accept it as proper evidence, and that is why we've hedged our system around with so many rules of evidence, and we could take another look at that.
MS SOOKA:: Thank you. Hanif. Hanif perhaps we should break for lunch and come back at two o'clock, I think that would perhaps give everybody a break.
HEARING ADJOURNS
ON RESUMPTION
MS SOOKA:: Thank you. Hanif.
MR VALLY:: Mr McNally, I have limited time, so I'll try and rush through my questions. The first question is, that you were appointed to the what is called the "McNally Commission of Inquiry", to look into allegations made by Nofomela and Coetzee. You made reference to the fact that you didn't have all the information at your disposal, but at that time I believe you made a finding which was subsequently released through a court application to the effect that the allegations were without substance and Coetzee and Nofomela were motivated respectively by the grievances against the Police, and the desire to escape the death penalty, when you were Commissioner with the McNally Commission. I'm giving you a summary, is that correct?
MR McNALLY:: Not quite, as I remember it. I'd like to correct you first of all where you said that I was appointed to investigate allegations by Nofomela and Coetzee that is not so. I was appointed along with a person called General Conradie, to look into allegations that Nofomela had made. Coetzee came into the picture after my appointment when he gave some corroborative information of Nofomela's story. That's the one correction.
And your summary of my findings are not quite correct, and I'm not in a position, because I don't have the documents here to give you the exact words, but I believe that our finding was that, according to the evidence available to us, and that is a very important phrase that we used, according to the evidence available to us it appeared that Nofomela's allegations were false, as indeed, many of the allegations were false as we now know them. Some turned out to be true, and as soon as I establish the truth of one of them namely, that connected with the Mxenge matter, I took appropriate action and instituted a prosecution.
MR VALLY:: Mr McNally, thereafter you appointed to lead evidence before what was called the Harms Commission part of which Commission's terms of reference was to look into death squads? Maybe you can correct us there.
MR McNALLY: Unsolved murders.
MR VALLY:: Unsolved murders. There has been criticism even by legal academics, such as Professor Dugard saying, that in view of your finding during your investigation, by what was called the McNally Commission, you should have recused yourself from taking any part in the Harms Commission. What's your response to this?
MR McNALLY:: I don't believe that that is a valid point of view. What happened was that, when I was appointed to the Harms Commission, the Mxenge matter was not an unsolved murder case, because Nofomela was actually being prosecuted in the Supreme Court in Pietermaritzburg at that very time. I caused it to become an unsolved murder case in a sense, and I'll explain to you that sense, because I was asked by Judge Harms to call together all the legal representatives of the parties to the Commission, which I did, and we discussed the way forward and what evidence should be led in the Harms Commission, and one of the matters that came up was the Nofomela matter. I pointed out that it wasn't available to us as a subject for inquiry at the Harms Commission, because it wasn't an unsolved murder, so with the consent of all the people at that meeting, as Brian Currin and all the other legal representatives, Wim Trengove was there if I remember, and many others, it was decided that I should asked my colleague, Mr Imber in Natal to withdraw the charges against Nofomela, so that the Nofomela matter could be dealt with at the Harms Commission in its full context. At that stage it occurred to me that there might be a problem with my own participation due to the fact that I had been involved in the McNally enquiry, so in consultation with Judge Harms, I approached the Department of Justice to second a second advocate as counsel to the Commission with particular reference to the Nofomela matter, and my colleague, Advocate Roberts was so seconded, and it was actually he and not I who dealt with the key features of the Nofomela matter. For example when Coetzee's evidence came to be taken in London, I did not even go to London to be present at the taking of his evidence, Advocate Roberts went with the Commissioner and with members of the, other members of my investigation team. So, I was aware of the problem and I took, what I believed to be appropriate steps to solve it.
MR VALLY:: The issue was this that Nofomela had made certain allegations regarding death squad activities. Harms Commission had to look into unsolved murders and that was because the President at that time, President De Klerk was under pressure regarding unsolved murders allegedly as a result of death squade activities. If that is correct, surely in terms of your findings for the McNally Commission you had made a decision, you had made a finding, you should have recused yourself from the Harms Commission, and the question is, that whatever position you took in the Harms Commission was already tainted. In terms of maintaining your position as an unbiased Officer of the Court, and an Attorney General, you should have formally recused yourself from that appointment. And I am not talking about whether you talked to Nofomela or Coetzee as individuals but in terms of the principle, why did you not do so?
MR McNALLY:: I think I have explained to you that I took steps for another counsel to actually handle the Nofomela matter, so that I could be released from that particular function because I recognised the problem that you are putting to me now. But I would also like to point out to you that I have a measure of intellectual honesty which you don't seem to credit me with, and that intellectual honesty allows me to make a finding such as I did in the McNally inquiry, which was on that evidence and then to reconsider that matter if anything new came up. It was my wish that at the Harms Commission, evidence would be found which would enable Judge Harms to make a positive finding in regard to the Mxenge matter. The Mxenge killing was a killing that absolutely revolted me. There was a picture of Mxenge available to us at the Commission and in my inquiry which caused me revulsion and which caused me to want do anything that I could to bring those responsible for his death to justice. So I wasn't tied to my finding, if new evidence had come up I would have been only to glad to cooperate in bringing it up. But as I say it wasn't I who was dealing with Nofomela at the Harms Commission, it was Advocate Roberts.
MR VALLY:: Mr McNally, KwaZulu Natal province has had one of the highest murder rates in the country. You have been Attorney General of KwaZulu Natal since ...(intervention)
MR McNALLY: January 1993, officially since December l992.
MR VALLY: There is a perception amongst NGO's and amongst certain members of the legal fraternity that a large degree of impunity exists in KwaZulu Natal in terms of the lack of prosecutions and the lack of convictions. What is your response to that?
MR McNALLY:: I would like an opportunity to discuss that with the NGO's. I believe the perception is wrong and I can certainly say under oath here that I and members of my office do everything within our power to bring murderers to justice from whatever political persuasion they may come. I draw your attention to the fact that eight High Courts or Supreme Courts, as they used to be called sit in KwaZulu Natal every day of the court year, and the idea that we don't bring prosecutions to court is absolutely ridiculous. Those eight courts are busy day in and day out and we don't just bring murder cases to the Supreme Court these days, we bring them to the Regional Courts and those Regional Courts are so busy that they're booked up till April or May of next year already. So there is a very vigorous campaign of prosecution in KwaZulu Natal quite contrary to the perception that you mention.
MR VALLY:: I have been sent a note saying no more questions, so I'll just try and sneak in two and then there is other very short questions Madam Chair. The other questions which you answer together with the other Attorneys General when we have the more general session. The first question is this. There is an instruction in your office that all charges regarding members of the Security Forces more specifically the Police, those dockets have to be referred to you and you've got an explanation why in your submission. Of the complaints that come to your office, what percentage of them do you actually prosecute? I am talking about complaints regarding Security Forces, and what's your success rate?
MR McNALLY: I'm speaking from memory, so please accept the figures that I'm about to give you from memory. We’re prosecuting 34% of those cases, and our success rate is 43/47% something in that order.
MR VALLY:: So of that 30% of complaints, 15% of them are successfully prosecuted.
MR McNALLY: No, of the dockets that we receive for consideration, 34% result in prosecutions, and of those that go to prosecution 43/47% result in convictions.
MR VALLY:: My very last question is this; regarding the relationship with the ITB (Independent Task Board) and Independent Task Unit, they had serious differences with you on the issue of whether to call Dali, Xolo, Luthuli, as a witness in aggravation in the Mbambo Mhikze matter. There was a time when you advised Advocate Kunig in writing, at very short notice that you didn't regard him any longer as a member of the AG's office. Can I put it to you that your relationship was a bit more stormy than you indicated earlier?
MR McNALLY:: I've never denied that the relationship was stormy. It was extremely stormy, so much so that I had to invite the ITB and ITU on the radio to come to lunch with me so that we could settle our differences and that was agreed to by the ITB. They came to a meeting with me at my office, and one could almost feel the hostility that they had towards me, and I chaired that meeting and as the meeting proceeded I could feel the hostility melting away and after the meeting we issued a press statement to say that we had resolved our difficulties. There had been stormy difficulties, to the extent that they had said that they could only communicate with me in future through a mediator which I said was ridiculous, and when I called for this meeting and we had it, and we resolved our differences and I must tell you that during the course of the Malan trial my perception is that we the Prosecution worked as a closely knit team with the ITB to whom I gave regular briefings of what was happening in Court, and with the ITU and the Civilian Research component of whom Melanie Lou was a member. We really appreciated the research and input that we got from them. It was something new for us as prosecutors. We don't normally have a research unit so we got a lot of help from them, and my opinion is that there was a great deal of goodwill between me as the Chief Prosecutor and the ITU and the ITB during the Malan trial.
What went wrong was that first of all, Malan and Company were found not guilty, that was a negative factor. And secondly afterwards certain dockets which didn't justify prosecution were submitted to me for prosecution. I declined to prosecute, and every time I declined to prosecute Howard Varney went to the newspapers with a press statement condemning my decision. Now I've never criticised him, but he keeps criticising me, it's been a one way traffic. I haven't sought confrontation with him, I've sought reconciliation and we had reconciliation during the Malan trial, but unfortunately the relationship between him and me is not good at the moment, it is not my wish that it should not be good, I'd be delighted to repair the relationship again, but I don't see any sign that he wants to.
MR VALLY:: Thank you Mr McNally.
MADAM CHAIR:: Questions ?
MR POTGIETER:: Mr McNally, a lot of these submissions that were made to us reflects a negative public perception towards the prosecuting authority, in fact there appears to be a lack of confidence in the ability of the prosecuting authority to serve the interests of the new democracy. There is a view that this results from the fact that the prosecuting authority has been inherited virtually intact from the apartheid era. Your conduct as Attorneys General in opposing what is regarded widely as a positive move to centralise, introduce some central authority within the realm of the prosecution hasn't helped it appears to dispel that public perception. We noted that you referred to restructuring efforts in your particular office, the fact that you are working on representivity in respect of the racial composition of your staff complement. You have referred to the of course the fait-acompli now of National Director of Public Prosecutions, but how does one go about dispelling that perception, right or wrong, it seems to be a fact, how do we get rid of that, because obviously it's a negative thing, it's something that we need to address. Have you got any views on that?
MR McNALLY:: Maybe you can give me a PR person to help me, I do my best, but Attorneys General has never been trained in PR, but I find that whenever I get an opportunity to address the Portfolio Committee, that's in Pretoria, or the Portfolio Committee on Safety and Security in KwaZulu Natal as I did recently, this develops a greater understanding of my role in whole system of justice and I believe that that helps to dispel the perceptions to which you refer. But there definitely are perceptions, and these are fueled by old things, like the Nofomela matter that was raised with me today by Mr Vally, the Harms Commission. These things cannot again and again and again ad nauseam. Nobody takes any notice of what I say. The facts suggest that I've acted honourably and that I tried my best at the Harms Commission to get to the truth, that's the fact. The perception created by questions like those from Mr Vally, creates a perception that maybe I wasn't doing my job correctly, which is an incorrect perception. I wanted to get to the bottom of those death squads. I worked hard with Advocate Roberts and the Judge to get to the bottom of those things, but the times were different to the times that we've got today. We were misled and we were lied to, and the fact is we didn't get to the truth, but that's wasn't for want of trying. So maybe my appearance today will help in clearing some misperceptions.
And I would also like to say to you that the perceptions that you referred to, are perceptions that crop up in the media from time to time and perceptions amongst certain NGO's, but the perception of a large portion of the population of KwaZulu Natal is that I'm actually doing quite a good job, believe that or not! I get invited to speak at functions and my speeches are very well received. I've been invited to join Business Against Crime and I've joined both the Provincial body and the Pietermaritzburg body, I get greeted by people in the street, black, white, Indian, you name it, who want to shake my hand and just tell me they've seem me on the television, and it's great. So it's a one-sided perception, but it's there, I know it's there and you can help to dispel it.
MS SOOKA:: Mr McNally, just one more question, or two, I think Ilan Lax wants to ask one as well. This was quite a different approach, having a body like the ITU assist with your office
and you spoke about the fact that you actually enjoyed someone else doing the research, and from the reports one gets, it's obviously a very difficult - the issue of prosecuting in our country is very difficult given the numbers, the fact that you don't have time to prepare probably and that you don't have at your beck and call some of the resources that advocates with well stocked libraries, etc., have. I know that the relationship between you and the ITU in fact floundered, but in terms of the experiment that was tried then, what is your opinion on whether that works, whether that's possible in the future? Just some kind of comment from you, given the fact that Ms Rayner also talked about a team-based approach bringing different expertise's together.
MR McNALLY:: The idea of having a Board of attorneys who, although they had enthusiasm and goodwill for the job, we're not necessarily attorneys coming from a background of doing criminal work, is something that I think did perhaps not work too well with the ITB. There was no reason of non-enthusiasm or anything like that. They most certainly applied themselves with great enthusiasm and vigour, but basically I experience it as a strange system to have to deal with an investigator, who wasn't a policeman, but who was actually a Board of Attorneys, and I think this is possibly also worked against me in regard to the perception matter that Advocate Potgieter was referring to because the Attorney General's relationship with the police is such that if they don't agree with one of my decisions, they come to me and they tell me they don't agree with that decision on the face of it, could I please explain it to them. I will then explain it to them and our relationship is such, that they will accept my explanation and will more likely than not go away happy. Howard Varney's approach unfortunately was not to do that, but to run to the newspapers with a diatribe against me for not prosecuting in the case that he said was water-tight.
Now, that was a new approach to me which I find difficult to handle, because instead of doing my normal work, I was answering telephone calls from newspapers from here to London and New York about how I was handling these cases and I was also having to reply by these attacks on me by Howard Varney. Now that made for a very difficult relationship, and I must say I find the relationship that normally exist between the Police and the Attorney General to be a more comfortable one, but there were a positive aspects of the ITU. The ITU in my opinion worked very hard, both in their investigation unit and in their Civilian Component and I certainly drew benefit from the research and the input from this Civilian Component. It was something I also hadn't experienced before, they hadn't experienced before either, which perhaps inhibited their ability to help, sometimes the material came through after the witness had already been cross-examined for example. They didn't realise always the need to have the material lined up at a particular time of a trial, but that was inexperience on their part and inexperience on our part because it was the first time that we had had a Civil Component doing research for us, but it is something that we could look at particularly for the big Attorney General’s offices to have people like computer experts and researchers and that type of person to help with the "back-room" work involved in preparing a big case like that.
In fact, the perception may be that I didn't have the resources or the advantages necessary to prosecute the General Malan case adequately, the truth is the exact reverse. I had investigators available to me twenty four hours a day, I had the Civilian Component available to me, I myself am a Senior Counsel, I had a Senior Counsel assisting me, I had Karl Kunig, who was a Senior State Advocate assisting me with goodwill and he was really trying his best to assist me, so that was a case which was completely resourced from my point of view and I certainly don't blame the fact that there wasn't a conviction on lack of resources.
MS SOOKA:: Thank you. Ilan.
MR LAX:: Thank you Chairperson. Mr McNally, we're grateful for your acknowledgment of regret vis a vis apartheid legislation and the consequences of that. My question is really focused on the future. God forbid, we should find ourselves in a situation where Prosecutors are again called upon to apply unjust laws. But if that were to be the case, how would you see Prosecutors trying to deal with that dilemma in the future, as something we might try and put safeguards into our recommendations?
MR McNALLY:: It's very difficult to find any system that is perfect or utopian, and there are certain aspects of today's legislation which I personally find morally unacceptable, such as being a Catholic, the abortion laws, just to give you one example. I believe it is questionable whether we should be prosecuting people who are illegally in our country from other countries. Is it not something like the Influx Control of old? I don't have a firm view on that, I just raise it as something that could trouble certain people. So even though we have shed off apartheid, that is no guarantee that all the laws that will be passed by a new government or any future government will be one hundred percent moral, but we will have to apply whatever laws come our way in terms of the new oath that I have quoted to you.
MS SOOKA:: Thank you Mr McNally, thank you very much for responding in the way you have. Thank you.
MS SOOKA:: On behalf of the Commission, we would like to welcome all of you to this hearing, I believe that our Legal Adviser has already discussed with you over lunch time, the way in which we going to proceed. ...(tape ends)
MR D'OLIVIERA:: Madam Chair, ladies and gentlemen of the Commission, I'm not quite sure what was asked of me over lunch time, because I did not hear anything, but what I have gathered from the hearings, and your concern, is basically what can we do for the future. I have set out my very brief presentation in writing in five pages, precisely with a view to possible questions. I will not read from it unless you request me to. I wish to add, or refer to the following
To appreciate the tasks of an Attorney General, particularly up in the Northern Provinces, I wish to refer to the matters of record, namely the annual reports, the 1995 September hearing before the Portfolio Committee on Justice, and so forth. We are asked what we can do to improve, or rather to banish, this perception, that the Prosecution is unable to serve. I think there are two angles.
The first is that we, in our policy of staffing and in our practice on the ground level, that is at magistrate’s courts, specifically go out of our way to draw in the community, whether by means of visiting schools or by means of sitting on Community Forums, it's very important for the future that we be known and become, the people's prosecutors. That is very much a PR exercise, but I think that it is vital, because without legitimacy, we'll get nowhere.
The second most important one, and I think a large reason for this perception of inability to serve, is the serious and very serious deficiency in resources. The Justice budget, the national budget, is a scandal. The result is that salaries paid to prosecutors, is a national disgrace, and I'm quoting a member of another Commission. We are debilitated by the neglect by the Department of Justice because of its inability to do justice within the Department of Justice.
I have had the privilege and responsibility of leading a special investigation. I had to ask the President directly for ten more advocates and ten more investigators, because I had over five hundred incidents of Third force alleged activities, which I cannot get to. I have not received a response at all, there is no money, there are no advocates, there are no extra policemen. We cannot, Madam Chair, carry on and try to run a sophisticated country on a budget which is basically meant to keep a railway station going. That is for me, the first primary approach.
The next aspect I wish to comment on crimes committed by Security Forces. Up to 1994 when I was given the job by the then State President in the TEC, of going into the recommendations and findings of the Goldstone Commission, I never realised what was happening in this country- in reality. I had a good idea, but never realised the depths of the deceit to which we were all subject. But at the same time, there was no way we could get to the truth without it coming from the inside. There was no way Harms could get to the truth, he was lied to, where it came to security matters. We know the system was so much against us that sweepers were used by the Security Forces to cover up scenes of murders, people who knew what the prosecutors would be looking for, so when we came, we said well you can't prove a murder on this evidence. We were deceived that was part of the system.
Thus, when you had a death in detention which we all took seriously, and there are instructions in all offices, that are to be taken seriously, we could never get to a prosecution, because the scenes had been swept.
Now, what do we do in the future? The experience we have of working directly with hand-picked police, leads me to recommend the consideration of a FBI type unit, which works directly with the Attorney General. It is no good Madam Chair, going and saying in your province there is great organised crime, great this crime and that, what are you as AG doing about it? I can do nothing but tell the police to bring me the dockets. I have no powers over the Police.
On the other hand if the lack of response is due to Police corruption, if I have a unit I can call upon to find out why nothing is being done, perhaps we will get somewhere. We have just not been in a position more than relying on tradition and on the politicians to get the Police moving.
The point has been made that we can't offer witnesses much protection, in fact our witness protection system is pathetic, and I agree with my colleague too, that courts must be more concerned with ultimate veracities and not just technical points.
I just touched on some of the points. In my written presentation I remark that, the exclusion of many of our colleagues on the grounds of race from the public legal sector has impoverished our legal system. The difficulties we now experience, the mess we are now in, are the price we are now paying, the country is now paying for such exclusion.
Although not an institutional change, which I understand this Commission is seeking to bring about, the task of development of the disadvantaged, of maintaining the levels of experience you have, and of have sharing that experience with the disadvantaged colleagues, should be strongly promoted as one result of this hearing. I thank you Madam Chair.
MS SOOKA:: Thank you Mr D'Oliveira. Mr Rossouw.
MR ROSSOUW:: Madam Chair, thank you. I want to be brief. I haven't been a practising Attorney General for the last six years. The first three of those six years were served on the Goldstone Commission, and I agree with my colleague, D'Oliveira, that that certainly gave one a totally different perspective.
I also agree with him on the other things that he has mentioned, and I'm not going to talk to you any further about what lies in the future, because I think that the practising Attorney General should do that, and can do that better than I can.
I want to quote only one paragraph from my short submission, and it reads like this,
"For the greatest part of my career I practised Criminal Law as a Prosecutor within the previous political dispensation. I applied the laws supporting the apartheid system and contributed to the division and oppression of sectors of our society. As a product of that environment, on occasion I may have believed accusers too readily and may have been insensitive to hearing or investigating claims of injustice. I confess that these were imperfections, and I ask forgiveness of those persons who suffered as a result"
I want to make two further points, Madam Chair. Last night I became aware of a submission that has been circulated by Mr Hendricks, who is in the audience I believe, and his submission was that he had become, he was one of the earlier prosecutors from the so called Coloured community. He was placed in a completely untenable position of having to examine and prosecute something like the Group Areas Act. He refused to do so. He states that I summoned him to my office, and bluntly told him that he had to do the work. If any discourtesy on my part is implied, then I want to apologise both for not understanding the position sufficiently, for not having enough sympathy and for not treating Mr Hendricks with the necessary courtesy. I have been able to say this to him personally, I am also doing that now publicly.
The other, and the last point that I want to deal with, and I want to do this as shortly as possible, is in the submissions there was also mention of the Trojan Horse case. The salient features of the Trojan Horse case was that I believed that there was not sufficient evidence of the intention to file a murder charge, using the logical legal tool of common purpose. On the charge of culpable homicide there was insufficient evidence between the death of a particular person and a particular accused person. The decision not to prosecute enjoyed a lot of public notice. I gave Mr Coetzee, the then Minister of Justice, at his request, my reasons for deciding not to prosecute. Mr Coetzee explained them to various Houses of Parliament, and I remember there was half a page in the "Cape Times" on this particular aspect.
In the event a private prosecution was instituted and it was led by very capable counsel. I noted the progress of that prosecution closely in case the State should step in and continue the case. I was requested indirectly to do so when the presiding judge, Judge Williamson, refused the accused Police's application for a discharge at the end of the State case - I'm sorry, the end of the prosecution case. I refused to do so. In the event that there was an acquittal, and the judge’s reasons for acquitting the accused traversed the same grounds that I had given to Parliament via the Minister of Justice.
I don't think that it was, perhaps through my own fault, realised by people that I had great sympathy with those people that had died in this incident, but criminally legally there was no case.
Subsequently the Minister of Police settled a civil case out of Court. Perhaps it needs to be explained how that can happen. In a criminal case the onus of proof is to prove beyond reasonable doubt. Let's say for the sake of illustration that that represents 80%. In a civil case the onus of proof is to prove on a balance of probabilities. Let's say that that represent 51%. It will readily be seen that there is quite a big window of what people may regard as sufficient proof, and it is sometimes that this isn't taken into account. This is what happened to Mr O J Simpson in America, and explains why he was acquitted in the criminal case, but lost in the civil case.
Thank you Madam Chair.
MS SOOKA:: Thank you. Mr Roberts.
MR ROBERTS:: Thank you Madam Chair. May I say that on my own behalf that I acknowledge that an unjust system maintained itself in power by means of unjust laws and that from time to time I applied those laws and thereby contributed in some measure to the maintenance of that regime, and that is something that I regret. Throughout my career if I can quote from my written submission, I have held the view that a prosecutor, who lands in this type of dilemma situation has the duty of applying the laws of the day, whatever his or her personal feelings about the desirability of those particular laws may be. I still adhere to that view. If a prosecutor is not prepared to apply the laws of the country, he or she should resign. This is not to say that a prosecutor should agree with the laws that he or she ss applying and I submit that any other approach would lead to chaos as each incumbent would then be seeking to apply an individual value system possibly at odds with the values of other members of society, and today I might add with the full benefit of hindsight and after much reflection I still cannot answer in my own mind the question whether I ought to have resigned at some stage and if so what that stage might have been. If I can just take up a point of two that had been raised in previous questioning of my colleague, Mr McNally, one of the points was raised by Advocate Denzel Potgieter, about why the Attorneys General sent the wrong signals by opposing the idea of a National Director of Public Prosecutions.
I want to point out unequivocally that what happened was, we went into it, we decided we did not like the idea of this particular system and we applied our minds to the issue and gave our bona fide opinions on how we saw the law to be, and I think that is our duty, and if it is expected of us that we have to fit in with what the political masters wish when we make recommendations, that is extremely dangerous. I see one of the safeguards of the system that we can speak out if we do not agree with something.
We have given views for example on the recent issue raised by Dr Mary Rayner of the tightening of the bail laws and mandatory sentences and things. We've made our inputs there, I don't know if our inputs were liked, particularly by the Government, but we feel we've got a duty to make those inputs. And what's more, that duty is imposed in fact on all public servants now by the recently introduced code of conduct which says that when you're asked for your opinion, you'll give an honest opinion as to which course of action should be followed whether it is popular or unpopular, and I still think that is the only way one has to go.
Obviously if you're overruled then you've got to loyally go along with that which has been accepted, that is what we have done, and I see no particular problem to that particular issue.
Then the other question that arose during Dr Mary Rayners evidence, I think it was hers, relates to all these cases of unsolved deaths and how many people died in detention, what did we believe of it. Speaking for myself, I had very serious suspicions in perhaps most of those cases, but that's not the test. We regularly are confronted with this situation. We believe a certain thing happened, we believe somebody is guilty of a crime, but we've got to stop a prosecution rather not introduce a prosecution just because there is no evidence. So our own private feelings about the rights and the wrongs of the thing just give us something to work with, but they're not enough to go to Court with and this is a regular problem. So the fact that we decline to prosecute a policeman for example who is accuse of a crime doesn't mean we agree with that policeman's version. It may be we agree with the version, more likely it's a question of we've got this evidence, we've got one witness here and he's not very good, and on the other hand, we've got this and that we're never going to succeed. We have to put our particular feelings, our own feelings second in that particular situation. We've got to take the objective decision, have we got a reasonable prospect of successful prosecution. Thank you.
MS SOOKA:: Thank you. Mr Nel.
MR NEL:: Chairlady, I served exclusively under black governments in a managerial position, seven years under that pre 1994 regimes of Transkei, which almost six and a half years was under the military junta of General Holomisa. Which is a sui generis situation indeed.
My perception at the time was the Transkei was in a sense a crucible where reactionary and progressive forces were active and my office was at the interface of the impetus from both sides. So, I had to be objective, and I believe that the principle of egalitarianism of impartiality had to be observed strictly in the Transkei, so much so that I was paid the rather ironic compliment by a very prominent Transkeian businessman on the street, this is a person who has to come back and serve about ten years for fraud, he hasn't been apprehended since 1994, that I was by my decisions keeping the Holomisa regime in the cushions of power, which was a complete ...(inaudible) in reverse to the situation that my learned colleagues had in the Republic of South Africa.
What I'm saying is I was given the opportunity of being objective and which we tried to adhere to in a different political regime and a different political system, where you could afford to be objective between the powers on the right and the powers on the left-hand side of this spectrum so to speak.
What I'm saying is that there will always be perceptions, whether this comes from the right-hand side of this or from the other side. I think the idea is that people must see that you're objective, you must be accessible to them in your administration of your office. I agree with my learned colleague, Dr D'Oliveira, that we want a clean police. Speaking from our own office, we are 80% black, there's a lack of experience, but we are getting there. There's no lack of brains.
I've quoted a number of examples of cases which I thought Mr Dumisa Ntsebeza were he here today, would have been particular interested in, because he represented those people. Certain deaths where prosecutions did not ensue, certain prosecutions which fell by the way, we had to endure political reality where people could jump the border, go across to the old RSA and such was the situation that we could, well to ask for extradition was just a non-starter, because these people were being harboured in South Africa, and they were being armed from the security side in South Africa. So we laboured under that disadvantage in some of these cases. I've set them out in quite fair detail, quite a lengthy detail. If there are any questions, I'd be happy to answer them.
MS SOOKA:: Thank you. Hanif.
MR VALLY:: Thank you. Gentlemen, some of you have made a handsome apology and we thank you for that. There's still some questions we need to ask. We need clarity on the period. I have already raised with Mr McNally that the Minister of Justice could substitute or give you instructions in terms of what the law was up to the passing of the Attorney General Act of 1992, without even disclosing this fact to the public. Now Mr McNally has indicated that there were times when the Minister of Justice indicated his preferences, I think that's how he put it and maybe he can elaborate, if necessary. What I need to know is, did the Minister of Justice influence any of your decisions up to the passing of the Attorneys General Act of 1992, and if so what were they?
AG: Madam Chair, no particular or specific decision was influenced from the time I was an Attorney General, that is from 1st April 1986 up to the present. But we did have policy input when it came for example to the question of prosecutions against member of the ANC and prosecutions under the Group Areas Act. The Minister would call, and did call his Attorneys General together and he would say for example, in the case of the former, the Government is entering a "represment", with the ANC is there way of your not prosecuting. Now I am sure the present company wouldn't find much principal trouble with that, (that's just a joke). but it’s a serious joke. What we would say to them as lawyers, Minister, that is impossible. If a case comes before us that is prosecutable and we have no good reason, we must proceed on that case. Let's say a case of murder, I'm not talking about a statutory offence which are easier to deal with. The result was, the Government then was in a position, and we recommended specifically my colleague, Rossouw and I, to Minister Coetzee if you want to tie our hands you must pass an indemnity act, because we must apply the law, and that is how the indemnity acts came on the book, to enable the Government to continue negotiations. Yes, so in that sense he would say, we the Government are thinking this way. That would automatically influence our choice that we can see for example an act like the Group Areas Act is for example, going at last. What is the use of applying it? An Act which is unfair but which had to be applied because we're AG's, so we had a reason to place a moratorium on prosecutions. In that sense yes, the Minister has directed me, but in general, not specifically. I cannot speak for my colleagues.
AG: I think by an large Madam Chair, that was also my experience. Perhaps I musn't say more. All I can say, the opposite also happened. I remember sitting in the train and going home one afternoon, reading the Argus, and seeing that the then President, PW Botha, said in answer to a question by Mrs Suzman, that Influx Control would come to an end in three months time. Well, there were hundreds of people in court the next day for all kinds of offenses on the Influx Control, and I phoned my head office early the next morning, and said what do I do with these people, I am not going to prosecute, I can't possibly prosecute with conscience, and for an offence that's artificial in the first instance and that's going to disappear in three months. So we arranged to postpone all those cases, and eventually that became known, and it was handled in that way.
AG: Can I just take a point there. I only became an Attorney General, after the passage of the new Act, the current Act, but there was one occasion in which I was managing the office, I wasn't formally appointed as an acting Attorney General, but the AG was in court, and the Minister's office phoned and he wanted us to take a particular course of action, it was somebody who'd made revelations which later turned out to be prove false about hit squads, and he wanted us to have this person for his own safety put inside in terms of Section 185 for detention of witnesses, and I wasn't prepared to do it, because there was no basis for a prosecution, so how could we have a witness.
Anyway, I spoke to the Minister, and he backed off, he didn't insist in trying to give a direction. He accepted that that was my view and that was it, and he found another way out of his particular problem.
MR NEL: Mr Vally I normally didn't speak to the Minister of Justice in the Transkei, I normally spoke to the Head of the State, and I have mentioned one example in my submission at the very first page, about executive prerogative which I think is something that the TRC should be possibly looking at what happened in Pondoland in 1984, that was before my time, but I've not seen anybody come forward to make submissions about those events, where the Transkeian Defence Force went in and cleaned out the populace there to, or certain sections there, but that was before my time in Transkei. I think Government means control, and there would always be some if not a ghost, a subtle form of influence brought to bear upon your decision. I found that with all the governments in which I've been involved with in Transkei, but thankfully they have accepted your decision at the end of the day. They might say to you, how about charging this old man, one of the Prime Ministers said to me there, referring to KD Matanzima, I said well there is no evidence, and that was accepted. So, Holomisa accepted when I didn't charge Duli for fraud. So there will be the attempt to influence you, but they have a stake in control, and you must expect that and you must be man enough to resist if the evidence is not there and this is were impartiality comes in.
MR VALLY:: Madam Chair, I'm going to the next question, but I just want to comment on the answer to this question, which is that we want an exposure of the past, we want to hang the dirty linen out, so we can make sure that it's washed for the new Government and I think the answer has been inadequate. We hear there has been some influence, for the example been given to us is when we wanted to scrap the Pass laws; when we wanted to get rid of the Group Areas Act. I'm afraid those are not gross violations of human rights. I wanted to know about when you were influenced, in terms of perversion of justice and I think you should think about that, when I ask you the next question.
AG:: Madam Chair, I said we were never given, I was never given ...(inaudible) instructions. ....(intervention)
MS : SOOKA: I think the question was answered, Hanif.
MR VALLY:: Let me go on. You people had certain powers in terms of which, by issuing of certificates, you could get bail refused. The Courts could not test whether a person should get bail or not. Similarly you had powers in terms of which State witnesses could be detained, almost at your pleasure, again which could not be tested before the courts. The question we want to ask you and which the Bar Council asked as well is; why didn't you complain about this obvious violation of the rule of law?. Or if you felt that you could not complain because of the nature of your job, why did you not ignore this kind of abuse of power that was handed over to you?
AG: Madam Chair, I think one mustn't in this room, where we are all together divorce ourselves from the situation as it obtained in those years. We were, let me deal with the refusal of bail. The usual case was that a policeman would arrive in your office and make this application, on the basis that he had certain informers in place and he couldn't go to Court without exposing the informers and jeopardising the whole operation of getting information. Don't forget, we were in those days busy with a revolution. It's a revolution that we had on our hands. There were questions, the word treason was bandied about quite often. So there were all kinds of influences and factors and perspectives and points of view that now with hind sight one wants to do away with, if you can, but on the other hand they were there, they were real, and you try to steer a course between them, trying your best to do that.
MS SOOKA:: May I follow that up with a question. Would it be true to say, that you shared the prevailing mindset then of most white people at that time, that you were in a sense fighting the enemy, and would that attitude have in fact persuaded you, influenced you to proceed against these "so called terrorist" with even more zeal?
AG: I most certainly, as I've said in my submission, certainly part of that mindset ...(tape side A ends) .....in the system and it is governed by politicians. Madam Chair, the way I see it, we weren't so much, it wasn't the executive or the Civil Service system that failed us, it was our parliamentary system that failed us. The fact that Parliament was the supreme authority of the State, gave them the hand to do whatever they wanted to, and they could ploy and use the tools of the Civil Service etcetera, in any way they wanted.
I think that the fundamental change that has been brought about the new Constitution being the supreme authority in the State, and everything measured against it, will to a great extent help to prevent the abuses of the past taking place again, but we will have to be vigilant, and you need people, and let me say on a lighter note, we resolved to each represent ourselves here today because we wanted to be punished for our own sins and not for those of our colleagues.
I viewed the fact you had seven different personalities as your Attorneys General, and they're not scared to say what they think, perhaps they're bit scared to come along and confess, but that's a common human failing, and after all we try to be human beings, I certainly did. But your seven different Attorneys General, and that is the basis of my problem with the National Director, is that they are a bulwark against corruption and manipulation, political manipulation, and so long as, and this is the present situation in the Constitution, there are no guarantees that the National Director will not be influenced. He constitutes a greater danger of manipulation and corruption then the system of seven different Attorneys General, whoever they may be.
AG: Can I add to that Madam Chair, as my colleague had just pointed out we each have our own particular stance and we can't talk for the moral position in the political views or outlook of each other for that very reason, I would not put myself as being part of the 1984, 1985, whatever particular year you choose mindset. It was a very difficult situation on the ground that one was dealing with, I mean people were being blown up, buildings were being sabotaged, people were being killed. These were the facts that we were dealing with. It was a very messy situation and we had to as we saw it apply messy legislation without any particular crusading zeal to fight a just war or anything like that. It was a very unfortunate situation we landed ourselves in.
If I could just make a little comment about that, that ours is a robust calling, to be a prosecutor is a robust calling, and if I can put it this way, one cannot apply vegetarian standards in a butcher shop, and that's the type of situation which one might have been dealing with in those years.
AG: Madam Chair, the two sections or two questions, first of all I think, yours is more general. Speaking for myself I cannot deny that I was influenced by my society, I'd be stupid, as even now I am regarded by someone close to me that I'm chauvinist or sexist, and I am learning all the time, therefore, I must have done something wrong at some stage, and I state that in my written presentation too. I would not have felt the sense of liberation that came with the Constitution, if I had not been caught up in some or other mindset, and I state that although I have not said it orally.
As I have also said to I've always felt, and that's from the time of university, that we had no right to deprive others, or hinder others from personal or career development, which the system did. That has been with me all the time, but which did attenuate that mindset was my exposure to others through various agencies, and I think that is what our country lacked, that generally we were kept in a white frame, or kept in a black frame and there was no communication, and perhaps that's a problem we still face.
To come to the legal aspects; yes, I used Section 61 of the Criminal Procedure Act. I used Section 30 of the Internal Security Act, both to deny the hearing of bail. I used Section 31 and Section 185 Little Procedure Act in the terms of holding witnesses.
Now first of all let us look at Section 31/185 concerning witnesses. The question put to me, Madam Chair, was why didn't we ignore this abuse of powers? Now for me those were powers which were for reaching which were not to be abused by me, although they were far reaching, and I used them where I honestly believed. Now the procedure was in terms of Section 185 as far as my office is concerned, is I had to be convinced of the necessity of it, I had to have a statement from the witness himself, agreeing to be held under Section 31 or 185, that would go under oath to a judge. I had to make out a case, that's my practice, because I did not want to abuse that.
Section 61 and Section 30 opposing the hearing of bail, it was used rarely but it was used mostly recently in the De Kock matter by myself, before the action went out and an eminent person who happens to be rather high up on the Constitutional Court bench, who was working with me on the Third Force, says he would not have hesitated to use Section 61.
Now what I am trying to say to you , Madam Chair, to the question, that there are cases where one has to apply powers which are far-reaching. I am glad we don't have to use them anymore because they occasion a greater burden of soul reaching then do the normal powers. But from what I have seen, what mankind has done to mankind, there are times when you're got to use far-reaching powers. What I do say in my submission, that where my use of these powers caused hurt, hardship and alienation which were unjust, I expressed regret therefore, but I am not saying that there are not crimes in which far-reaching powers are called for. Thank you.
MR NEL: I'd like to say that from the Transkeian side we tried to limit this to the extreme cases. If I could quote you an example, the late Colonel Duli was released from Police detention by order of the Supreme Court in December '89. He went to South Africa and he immediately started plotting the coup which he brought eleven months later. The people who came in with him during the coup attempt, they were held by me in terms of the bail certificate. These were extreme circumstances, the the State itself, at that time, was at stake.
As regards the question of the National Director of Public Prosecution, I think that we should be cautious there, and I agree with the lady who spoke here about the safeguards that should be built-in as far as possible.
I want to refer to the recent case of Mr. Sol Kerzner, where I declined to prosecute. Had I decided to prosecute and the National Director of Prosecutions overruled me, and said he should not be prosecuted, you would have still heard this in the press today, because they would have, with justification, have said that this came from the top, whereas one man decided to prosecute, the other man overruled him. So there is some danger to the situation.
MR VALLY:: Madam Chair, I need to ask a few questions together because I'm going to be put under time pressure, but I'm very disturbed still by some of the responses going on here. I've got letters from Senior Council of the Bar, we've heard Nadel's submission. The reality is that you put people in jail, fathers whose children were being charged, their siblings and these people were used as a means of pressurising the people who were accused and used as witnesses against them. That's the first thing.
The second thing is this, that these provisions in the Internal Security Act, these proceedings were used to maintain an iniquitous, oppressive and cruel system.
Thirdly, that you people were in a position of power, where this very state gave you that authority, which you used, and I say you used as a fact because we know from trials, this is what happened, and just when democracy was imminent, you had the Attorneys General Act of 1992 passed, making you independent, all this time, the Minister could substitute these decisions. Now the Government sees, things are about to change, we make you independent, you stay in office until you 65, certain exceptional situations where you can be removed by Parliament. And you still come tell us, the very people who were appointed by the apartheid state, and we didn't hear your voices, we didn't hear your voices at all you have now the temerity to tell us, bulwarks against Government action etceteras. Surely, the very fact of your lack of action is justification for a need to balance independence with accountability, because your very actions at the times when you were Attorneys General proves the need for this.
AG: Madam Chair, can I answer the last one about why this Attorney General Act with the independence came through right at the end of the regime. The short answer is that the Society of State Advocates, which is our body, our professional association at least by 1986 I can recall and - 1984, correction in 1984 we had our first or second AGM, and there was a proposal there and somebody was delegated to come with an Act to make us independent. This was a proposal we made in 1984, the thing was to and fro the whole time about the exact wording. It was our strong recommendation that that should be done, the Government than came with this law in 1992, so it wasn't as if we came in 1992, and said please you know, things are now changing, you better make sure there's an Act like that. This is a proposal that had come from at least 1984.
AG: Madam Chair, with respect to the questioner, there were about five items strung together, and I have difficulty in placing the connection. The first point I missed altogether. Is it alleged that I in the jurisdiction that I was in, locked up a child or a parent to influence someone else? I'm not quite following. Is this an accusation? Could I have specifics of that? Or is it just a generalisation which I cannot answer? If I could have clarity on that first point please?
MR VALLY:: This submission was made to use by Nadel in terms of how these sections were actually used.
AG: I have not had the benefit of seeing that thing. I can certainly not recall ever using one against the other in the sense that it happened. If it is so, it is to be decried. One can say, looking at it in the political brush-work, proceedings were used to maintain an iniquitous system. Yes, if you're looking at it clearly, it is so. The whole panoply of security legislation was used to maintain an iniquitous system. Non constat however, that those who had to apply it were therefore guilty of abuse of power. I think that you must make the distinction between the legislation that was there to maintain an iniquitous system, and the application, as I've endeavoured to set out, in circumstances where we had to try to be common law lawyers. I think there is a distinction between the two.
As for independence and accountability, of course there must be accountability. It is what we strove for, as my colleague said. We strove since we as a generation came into the AG's. We wanted this change because independence was taken away in 1926 by the then Nationalist government, who exactly as now needed to take control of the Prosecution. That had been done by Section 179 of our Constitution, and we succeeded in 1992 in getting accountability to Parliament. I can be summoned at any time by Parliament to explain, and I welcome that. That has been taken away now. This new Constitution has taken it away. It's not in the new Prosecuting Bill.
That's why I asked, and I refer on the penultimate page of my submission, in 1972, Van Niekerk and Matthews commented on the absence of a formal or substantive separation of power between an Attorney General and the Executive, remarking that direct or indirect influences are possible, they say, I quote,
"One's again we are not suggesting that the Attorneys General do submit to these influences, but we are certainly of the opinion that there is no institutional guarantee which would prevent such influence from being exerted, and perhaps even heeded."
It's precisely because we were in the firing line by people such as these who were saying, " you must your house in order, " that we moved to get the house in order which was not to say that we were getting instructions to do any particular things. We then moved and tried to get the institutional independence plus full accountability. At the moment we have lost the institutional independence and we've lost accountability and I think, and that's why I say we must look at very very carefully at our Constitution now. It's no good trying to patch it up with the National Prosecuting Bill. You have taken away independence, and you have taken away accountability. Each one of us should be able to be called up to Parliament any time the people want. At the moment they can, after the Constitution is put into effect by the new Bill, you can't.
MS SOOKA: : Mr Vally are you going to very much longer?
MR VALLY:: Alright, I'm trying to ask questions and enter into the debate... (intervention)
AG:: May I just comment something in regard to what my colleague had difficulty with understanding, and called it generalisation in the beginning .
Madam Chair, if during a prosecution it is sometimes necessary to use the witnesses that you can find, then sometimes you use those witnesses. Mr Vally's question reminds me of walking along the verandah in the old Kimberley Supreme Court, the old Kimberley Court, and sitting there was a young woman and an older man, and they were conversing, and I just overheard this quite clearly. They were discussing a case in which somebody was accused of illicit diamond buying, and the young girl found it completely unacceptable that the black person could be used as a witness against the white person. So you know, we've got this kind of perspective always, and it depends very much on the particular situation, and it depends on the crime that you're busy with, and it depends on your case that you're dealing with. We would far rather deal with the specifics than with generalisations,
MR NEL: Madam Chair, could I just come in on this one aspect of the bail certificate legislation. In Transkei as I said there were a succession of black governments under which I worked, and they didn't repeal that legislation. They used it.
MR VALLY:: I think the last gentleman must not confuse black governments with democracy. I think you are mistaking the so-called surrogate Bantustans with a democratic State, and I think its very different, simply because they were the same colour doesn't mean they were democrats.
Let’s just go on, and I am now under severe time pressure, but I want to still make this point. The point is this - that you as Attorneys General freely used confessions, obtained from people who were detained in terms of Section 6 and thereafter Section 29 of the Internal Security Act, and we know now that it was a matter of common practice for detainees who were kept in complete isolation, no access to their family, no access to their legal advisors - indefinite detention for purposes of interrogation. This was the law. You freely used it. Where were your voices then? You were appointed to serve a certain function.
Now I'm not saying that it wasn't influenced by the times; I'm not saying that that was the culture at the time, and I'm not saying that at this point you're not doing a good job. But with that background, with your voice not being heard at all regarding those detentions, here we find an Act which now, as apartheid appointees, entrenches you in place until you retire at age 65, surely a democratic society questions that? And therefore there is a need for this accountability and the creation of a National Prosecuting Director.
So there's two questions here; why didn't you raise your voice regarding Section 6 and Section 29 detentions? And why did you use the confessions obtained in those circumstances?
Secondly; the perception that as apartheid appointees, that the last government wanted to entrench you in your posts before democracy stepped in. Those are the questions.
MR D'OLIVEIRA:: Madam Chair, the first question. I have never used a Section 6 or a Section 29 statement, because we applied the common law, we have to prove beyond reasonable doubt the admissibility of a statement. We were helped by the Criminal Procedure Act in another way in that if the statement was before a Magistrate, there was an onus in which the accused then could say that the statement was not voluntary made. But Section 6 and 29 were non - court matters. They were in fact, and the Act makes it very clear, not the responsibility of the Attorneys General. It was a police power. The police locked people up. We never locked people up under Section 29. That's the first point. That's the fact, and personally, you show me a case in which I used Section 6 and Section 29?
Secondly the entrenchment. Before the 1992 Act we were ordinary public servants and we had tenure till 65. It was there already. Our rights were there already. Whether the democracy now sees that as being entrenched by the apartheid government, that's the entitlement of democracy. People are entitled to look at it that way. But the facts are, is I speaking for myself as a public servant had the right of tenure provided that I didn't misbehave. Now the new legislation says to me I must go, democracy wants me to go, alright, that's the democracy's will. But really, I can't bring the two together.
MS SOOKA:: Mr D'Oliveira, I think that perhaps from the side of the Panel what we would like to have answered, because this is a criticism that has come forward. The Attorneys General did in fact rely on confessions extracted under those circumstances, and used that to prosecute. You perhaps may feel that you've not, but I mean that is the perception out there, and in fact it has been borne out by cases that have come before the courts.
Now, the question I would like to ask, and Mr. McNally grappled with it in his submission, about the fact that he'd taken this oath, and that he had to ask questions about whether in fact the function he was performing did in fact secure justice. At anytime, in any of your careers, did any of you sit with this moral question about whether in fact you should have been there, if the laws that you were in fact using and exercising did in fact support this iniquitous system? Because, how on earth can one explain why gross human rights violations took place in our country during this time?
MR D'OLIVEIRA:: Yes, Madam Chair, I will endeavor to answer. First of all , when you ask me as prosecutor, I'll speak individually, I'd say as follows: What is affecting our people most, and has affected, is the legislation, the apartheid legislation, the security legislation which affected the people. One thinks, or is under the impression, and it’s perhaps where we can help the public with that perception, that we sat all day doing nothing else but security and apartheid cases. That is a wrong perception. For 97% of the time, one works on criminal crimes, whether it is appeals, motions, decisions, you name it, on normal common law crime. The 3% of the time if you do deal with some facet of security legislation, whether a trial, whether an appeal or whatever . You asked it - yes, it was an uncomfortable thing working with that, that is a fact, but as a prosecutor, I had a duty to apply my mind as I have endeavoured to set out, according to the criteria, according to the rules of the common law, and the acceptability in terms of interpretation of the legislation, not morally. I had to apply it. Yes it was uncomfortable, it was wrong. That's the one aspect.
Number two, the aspect of the confession. Which confessions is one referring to? Is one referring to the robber who robbed the bank and confessed, and he says the confession was forced, or are you referring again to those cases known as security cases where that particular person confessed that he did something in terms of his organisation. I am not sure.
If you're referring to confessions in general it'll be easier to handle. We have to prove one doesn't realise what a job it is to get a confession in. If we know, or if a prosecutor knows that the confession has been extracted then you will not use it, you will not prosecute if that's the only evidence in your case. I know colleagues of mine, I can think specifically of a name in a security related matter where he was lied to by the Security Police, and he saw that the confession had been extracted - he closed his case immediately. That was our duty, when we knew.
Normally the matter of compulsion was raised in court, and we were dependent on our witnesses to rebut that. If it was rebutted, fine, beyond a reasonable doubt, fine. If not, then we lost a confession, but if we got to know that the confession was extracted unlawfully we were not allowed to prosecute, or not allowed to rely on it. That's been my thing all the way. My approach.
MS SOOKA:: Thank you.
MR NEL: Can I take up a bit on it. Chairlady, upon a subjective plane one is filled with a sense of unease at least, but applying the law, in my submission to your good self I referred to the case of Mr Mzuso Matiwane, a gentleman I think served imprisonment for having lied to your TRC here, I think early last year, or early this year, I can't remember. Now he was the one suspect, person suspected of having killed the North Crest Five, so to speak, a still unresolved case, and the police brought a docket to me, with basically sole reliance placed upon a Section 47 statement, or statement extracted after security detention and I refused to prosecute on the basis of that being the sole evidence. So I can echo what my learned colleague has just said here.
MS SOOKA:: Thank you. Mary.
MS BURTON:: Thank you Chairperson. I would like to address my question first to Mr Rossouw because the case that I want to refer to occurred in Cape Town, but it does relate to a death in detention, and several of the other Attorneys General have mentioned, the broad issue of deaths in detention. I refer to the death of the late Imam Abdullah Haroon 28 years ago, September 1969. There was an inquest, and we have been able to obtain the record of the inquest. The inquest was heard before Mr Koen, and the prosecutor was Mr Van Graan, Mr J.S Van Graan. The advocate representing the family elicited through his enquiry during the inquest, the information that for a period of about two days, certainly two nights, and the days around them Imam Haroon was removed from the Maitland police cells where he was being held for purposes of interrogation, and when he was returned there he was in very poor physical condition.
Advocate Cooper tried to probe further to find out what had happened to him during that period when he was not accounted for in terms of the police cells, and in trying to find this out, he tried to find out where at least he had been taken. The prosecutor said, and I quote from the record,
"He was taken out on investigation, and he was not even in the Cape Peninsula at the time. They took him out to various places as far as I can make out."
And then he further added -
"I think in the interest of the State, I feel that we should not disclose where. Although he was not here in the Cape Peninsula, we are not prepared to disclose where they had taken him to. During the course of investigations he was taken to various places".
Now we have been hearing today that where prosecutors and Attorneys General were looking at matters where the Security Forces were implicated, that they were lied to, that they were not given the proper information, and yet here we have a prosecutor saying that questions should not be asked because it is not in the interest of the State that they should be asked. The Court ruled that Advocate Cooper could not address any further questions in that regard. And I would like to hear comments from Mr Rossouw and perhaps from other of our Attorneys General here, how they view this case.
MR ROSSOUW:: Madam Chair, the case of the Imam Haroon is a very well known case, and quite clearly a lot of things went wrong from a human rights point of view in that case. The Attorney General in the Cape at that time was Willem Martin van der Berg, who was looked upon as a capable Attorney General. Mr van Graan later on became a Regional Magistrate. I can only speculate in an answer on the question that you're asking me, because I do not have the intimate knowledge. I at the time was stationed in Kimberley.
One can speculate about whether van Graan was given the evidence by the Police who didn't want the public to know exactly which safe house, and I'm ...(tape ends)
MR ROUSSOUW: One can only speculate. I can't answer that question. I'm sorry.
CHAIRPERSON: Thank you. Follow up Mary?
MRS BURTON: I'd just like to ask if there's anything that can be done at this stage? Part of our responsibility is to reddress past wrongs and to find ways of reconciliation and rehabilitation. Is there anything that can be done at this stage to pursue the matter?
MR ROUSSOUW: Are you meaning in the case of the Imam Haroon? I would think that one is limited very severely by the fact that all the papers that deal with this situation are in possession of the people who need them and for the rest they may very well not be in existence any more. Whether you will find witnesses is also a difficult question but there might still be witnesses. Perhaps one must ask these questions and see whether there isn't somebody that may come out of the woodwork.
CHAIRPERSON: Thank you. Ilan?
MR LAX: Thank you Chairperson. There are two distinct lines that I would like to follow. The first deals with the matter raised by Mr van Lieres this morning, and it deals with, he mentioned that at a certain point in time the state began to adopt a different strategy of ceasing to use the more overtly political legislation as a basis for prosecutions, and instead to begin to use common law offences as a basis for those prosecutions. And at the time there was a perception, certainly amongst human rights lawyers, the state was seeking to legitimise those prosecutions and depoliticise them when in fact they were nothing more than political prosecutions. What are your comments on that?
AG: Can I make one point on that to start off with, and that is that as I recall those times there was severe criticism for people using all these various security legislation to prosecute people when there were perfectly good common law crimes which dealt with all of these things. For example why charge someone with sabotage if you can charge him with arsenal, malicious injury to property and so on. I think you have, there's a certain point in what you say. That the criticism is one is using the special legislation. If somebody on the other hand has committed a robbery or a murder or whatever else there is a crime then prosecute along those lines. Then one doesn't have any particular advantages from onuses and criticism like that. Yes there's a certain point to that.
MR LAX: The thrust of what I'm asking now is was there a deliberate policy to depoliticise those crimes so that they would attract less sympathy in the broad community as a strategy. In that sense one is saying in your statistics you could justify for example "that we only prosecuted murders, there were no political prisoners, there were no political prosecutions." And that was a strategy used by ministers at the time. They would say in parliament; "These are not political, these are just straight murders. And we're prosecuting them on that basis." So you see the thrust of what I'm saying. I'm not one moment reprimanding you for failing to use that legislation. It's the psychological impact and the political impact of it.
AG: Well can I start off by taking that follow up as follows. I was not an attorney general at that time so I can't comment. I certainly didn't hear of any joint decision that everybody as from tomorrow set off in a new direction. It probably came about that one attorney general started moving in a particular direction. For example treason cases; there was a long hold-up after the famous state versus Adams high treason case which ended in the early 60's I think. The one that went on for many years. There were then no treason cases until I think in Natal in about 1977 or '78. Somebody decided, I don't know for what reason that they had enough evidence to start treason prosecution. When that one succeeded other attorney generals probably saw that it can be done and followed that route. I think that's more likely what it was than a deliberate round table conference with everybody deciding that we all step off in a particular direction.
But it's difficult sometimes to - there is a blur there. I was involved in a case myself where I prosecuted two people, MK. people who came back and assassinated somebody because as they believed he had betrayed the cause. That to my mind was a murder case but it certainly wasn't stuck away as being non-political. Everybody knew that there was, what the background was. It was reported as such. The security police were obviously in attendance. They were investigating. So I don't think one would have managed to hide away the thing in any way like that.
MR McNALLY:: There was stage where the prosecution was being criticised for using so-called draconian powers given to them by security legislation. And Mr van Lieres thought that a good content to that criticism would be to make a more liberal use of common law crimes. And I believe that the process started with the case of the State versus Twala before judge van Dyk. It was a sedition case and probably one of the first sedition cases we'd had in South Africa for many a year. And judge van Dyk did indeed convict Twala and his companions of sedition as I remember. But it wasn't something that was necessarily practised by all attorneys general. It was a thought that Mr van Lieres had which he practised in his own division. And it was something that I personally found fairly attractive because it did tend to ward off criticisms that we were applying draconian legislation.
CHAIRPERSON: Thank you Mr McNally. Denzil?
MR POTGIETER: Can I just ask whether you would want to comment on, and a submission that was put before us and we might very well hear it in the course of these proceedings again by a security policeman suggesting that in a security related matter, it could be an inquest - it doesn't matter, it's immaterial for present purposes. He was for example approached by the prosecutor, told what questions he would asked at the proceeding, I think it was an inquest. Given the answers and also being advised on what the outcome was going to be, what the magistrate's finding would be. How does that gel with your experience, are you bewildered, shocked? That's the one point.
And perhaps the other one I can't resist and I'm not harping on this to put anybody in the spot. But one can't help but being left with a sense of unease about your position in regard to the national directive. One can't help but being left with a sense of some residual resistance. Although you have indicated I think via Mr McNally that you had fought a battle and that you are now committed to this. What is your position in a word on that? Are there respects in which you held reservations and those were not met in the eventual legislation which still makes you feel uncomfortable or what?
MR D’ OLIVEIRA: Madam Chair the first question I know pertains to my jurisdiction. That particular security policeman spoke to me. Although he is an accused being prosecuted by me, I was absolutely shocked by this that a party, rather a person who is a prosecutor was allegedly a party to this. Inquiries have been made. I cannot reveal any particulars because I think the person he's talking about is an (...indistinct) person. You'd have to give that person notice first. It is before my time but I'm following up on it. I know very well the allegation made by and I know the person whose made it. The particular person is no longer with us. He's a (...indistinct) grace the bar at the moment but he'd have to answer for himself. But should I find any evidence of defeating the ends of justice I will pursue it since I find that. There's someone behind me talking Mr Chairman.
CHAIRPERSON: Ignore the comments from the gallery please.
MR D’OLIVEIRA: This we deal with in court when we appear before the bar Madam chair and it's not easy, first of all. Secondly the question of the unease, appreciate your unease. The situation was there's no unease with the concept. The concept is fully accepted. We told minister Omar that again on the 20th of June in Cape Town this year, all of us. In fact I endeavoured when we heard that the constitutional assembly was debating it I endeavoured with my colleague in Johannesburg to get through to them and say here is a way to approach it. Politically we can't say. It's the will of the people. Fine we accept it. I have serious reservations about the formulation of section 179. I think it's unworkable. We've undertaken however to make it workable and we are committed to that. I personally am committed.
But in the question raised by Dr Rayner and other aspects independence of first the national directive by the prosecution and the super attorney general is not constitutionally secure. Any government can come and make legislation and appoint let's say Nick Mallett of the Springboks to become national attorney general and there are no qualifications, no requirements whatsoever. And that, that would be constitutional. We might do better than the person (...indistinct)
CHAIRPERSON: Thank you very much for coming today. We value your submissions and of course the response to the questions. And no doubt they have been uncomfortable at times but we will of course be interacting with you as more evidence comes forward to hand over precisely the kind of incidence that was alluded to by Mr Potgieter. Thank you very much. Yes certainly. Thank you Mr McNally.
Jacques Hechter please.
Could we just please remind people that interpretation services are available. Headphones and ear sets are available from the back if people don't understand Afrikaans. Thank you. Good afternoon. I'm sorry you've had such a long wait. Before you begin I'm going to ask Mr Malan just to swear you in please.
MNR MALAN:: Gaan u getuienis in Afrikaans of Engels gee meneer?
KAPT. HECHTER: Dit sal in Afrikaans wees.
MNR MALAN:: Sal u asseblief u volle name vir ons gee?
KAPT. HECHTER: My naam is Jacques Hechter.
MNR MALAN:: (lees eed) Baie dankie.
CHAIRPERSON: (...indistinct) do you represent?
MR DU PLESSIS: du Plessis.
CHAIRPERSON: du Plessis, sorry.
MR DU PLESSIS: Madam Chair and members of the committee I'm Roelof du Plessis. I'm from the Pretoria bar. I act on behalf of Captain Hechter, on instructions from my attorney, Mr Britz of the Pretoria firm, Strydom Britz Attorneys. I want to mention a few things before Captain Hechter goes on with his submission. The incident Captain Hechter was asked to testify about relates to a, strangely enough a preliminary investigation. It was not an inquest. It is the incident that was referred to very recently now in respect of a question that was asked to Mr D’Oliveira, and Captain Hechter will testify about that incident.
This evidence was already placed before the Amnesty committee and the submission that was drawn, it was handed in writing, it was drawn by my attorney. It was handed in writing to the Commission and it simply deals with the evidence that was already given before the Amnesty committee. That evidence was part of the evidence in captain Hechter's Amnesty application in the Ribeiro incident. We deemed it necessary to include that evidence as part of full disclosure of his application at that time. And Captain Hechter is fully prepared to answer any questions relating to this incident as far as he can remember. He did make a full disclosure of whatever he could remember at the Amnesty hearing and I also want to place on record that he is here as part of a attitude of full cooperation with the Truth and Reconciliation Commission. Captain Hechter will testify in Afrikaans. Thank you.
CHAIRPERSON: Thank you Mr du Plessis. We not going to ask your client to go through his submission but Mr Vally has some questions to place on record.
MR DU PLESSIS: Alright we have no problem with that. His evidence is before the Amnesty committee in any event.
MR VALLY: Captain Hechter you were a captain in the security branch based where?
KAPT. HECHTER: Ek was verbonde aan die veiligheidstak van Noord-Transvaal gestationeer in Pretoria.
MR VALLY: In terms of the submission I have before me it says that you were called to give evidence at the (...indistinct) inquest, your counsel (...indistinct) examination.
MR DU PLESSIS: Yes Madam Chair may I just clear this up. It is, that's why I said it was strange. It was one of the very few preliminary investigations that was still held under the old criminal procedure act at that time. That is why I mentioned it. It was a preliminary investigation. We have got the record. We thought in his Amnesty application it referred to a enquiry because we did not know at that time we did not have a copy of the record. I have a copy of the whole record with me here.
CHAIRPERSON: Thank you.
MR VALLY: Advocate du Plessis we want to rush things along. We're not in a Amnesty committee here and we don't need (...indistinct) Captain Hechter you have applied for amnesty in connection with the murders of the doctor and Mrs Ribeiro, is that correct?
KAPT. HECHTER: That's correct voorsitter.
MR VALLY: You were called before the Ribeiro examination or inquest whatever the case may be because your car was seen in the vicinity at the time of the murders?
KAPT. HECHTER: That's correct voorsitter.
MR VALLY: Did any member of the prosecutorial or prosecutor's staff prepare you for this legal hearing?
KAPT. HECHTER: Ja voorsitter die dag voor die voorloopige ondersoek was ek na die staats aanklaer se kantoor geroep gewees. Die presiese prosedure kan ek nie meer onthou nie. Ek aanvaar dit sou deur my bevelvoer offisier gewees het. Hy was aan gesê om die staats prokereur te gaan sien. Die staats prokereur kan ek nie onthou wie hy was nie. Ons het van sy kantoor af geloop na die staats aanklaer se kantoor. Die dokumente wys dat dit Meneer Frans Roets is. Ek wil net graag sê voor dat ek by die..... (no English translation)
MR VALLY: Can I stop you captain Hechter? I'd prefer it if you didn't mention any names now. Just the positions will be fine.
KAPT. HECHTER: O goed dis reg.
MR VALLY: I believe you should put it on record what you were going to say since you have mentioned his name.
KAPT. HECHTER: Ek het voorheen die naam genoem wat ek volgens die rekord kon aflui. Ek kan egter nie sy naam meer onthou nie. Ek kan nie sweer op sy naam nie. Ek was toe na die staats aanklaer se kantore toe geneem of al tans die staats, ja die staats aanklaer se kantore. Dit was op Kerk Plein gewees. Daar was vrae aan my gegee. One het eers so gestaan en gesels, 'n rukkie gesit en gesels. Ons het konsultasie gehad. Toe het die aanklaer vir my 'n lys gegee, 'n paar vrae gegee, 'n dokument met vrae op en vir my gesê: "Jacques as jy hierdie vrae bestudeer en jy antwoord hulle môre soos wat die vrae saam met die antwoorde gegee is daar is reeds met die landros gepraat hy weet wat om te antwoord, ag hy weet wat om die bevinding te maak."
MR VALLY: And what happened subsequently at the legal hearing?
KAPT. HECHTER: Die volgende dag was vrae gevra. Die vrae wat die voorige dag aan my gegee was. Ek het hulle geantwoord tot dien die effek en die bevinding was gewees as ek heel te maar reg onthou dat dokter Rebero en sy vrou deur persone onbekend dood gemaak was.
MR VALLY: Captain Hechter were you called up to use that same list of questions and answers subsequently?
KAPT. HECHTER: Dit is korrek voorsitter.
MR VALLY: Can you tell us where?
KAPT. HECHTER: Dit was die volgende dag in die hof gewees.
MR VALLY: And which court was this?
KAPT. HECHTER: Dit was die hof in Pretoria Noord. Die eliminasie van dokter Ribeiro en sy vrou het plaas gevind in Mamelodi en Mamelodi het geval onder die Noord, die Pretoria Noord hof.
MR VALLY: When you were being coached with these questions and answers was there any one else who was also coached at the same time as you?
KAPT. HECHTER: Daar was die persoon wat werklik vir die hele operasie verantwoordelik was wat in die weermag, hy was verbonde aan die weermag gewees. Hy was ook teenwoordig gewees. En aan hom was ook 'n lys gegee met vrae en antwoorde. Ek het nie na sy vrae en antwoorde gekyk nie maar hy was saam met my daar gewees in so veer ek kan reg onthou.
MR VALLY: Thank you captain Hechter that is all.
CHAIRPERSON: Any further questions?
PANEL: Captain Hechter did the prosecutor ask you what in fact the real situation was as it had taken place with doctor Rebero and his wife and did you inform him that you and the other gentleman, whose name you have not given were in fact involved in the, as you put it, the elimination of Doctor Ribeiro?
KAPT. HECHTER: Voorsitter, ja dit is baie lank gelede. Ek neem aan ons sou dit bespreek het. Ons sou die detail van die voorval bespreek het om die regte of korrekte vrae en antwoorde darem daar te kan gee. Maar ek as ek my reg kan onthou was hy reeds op hoogte van wat gebeur het. Hy was reeds in gelig gewees.
PANEL: Chairperson. Captain in your experience was this an unusual incident or did it happen more often than just that one incident that you knew of?
KAPT. HECHTER: Voorsitter nee dit was die eerste en enigste geleentheid waar so iets met my gebeur het en ek wil net graag meld dat ek voor die tyd lank 'n speurder was waar ek baie met die soort van of met aanklaer te doen gekry het. En dit het nooit voorheen gebeur nie. Daardie was die enigste geleentheid. Dit was nie vir my baie snaaks gewees nie want dokter Rebero was 'n baie hoë profiel persoon gewees wat wel vir die regering 'n probleem was. Baie sensitief, hy was polities baie sensitief gewees.
PANEL: Just one follow up question. Did you discuss this with your colleagues, the approach that's been adopted in this particular incident?
KAPT. HECHTER: Glad nie. Nee. Ons het gewerk suiwer op 'n moet-weet basis.
CHAIRPERSON: Mr Malan?
MR MALAN:: Kaptein Hechter dit val my vreemd op dat u sê u sou die ding bespreek het ten einde te besluit watse antwoorde u sou moes gee. Maar as ek u reg gehoor het, het u gesê u het daar op gedaag en die vrae en antwoorde was vir u gegee. Waarom sou daar dan die feitelike posisie bespreek gewees het soos u sê? Ek wou u regtig nie nou inmeng wat eintlik in die Amnesty aansoek gesien moet word nie maar dis vir my bitter vreemd dat (...onduidelik)
KAPT. HECHTER: Ek aanvaar wat u sê as, selfs al is daar vrae en antwoorde tog reeds vir jou voor berei terwyl as jy inkom daar word gegroet, daar word gesels. Die saak word net vinnig bespreek. Ek kan nie, dis hoekom ek vir u sê jy weet dit het so lank terug gebeur. Die detail kan ek glad nie meer onthou nie. Ek kan nie eens die personne se gesigte meer onthou nie. Ek het dit tydens my amnesty verhoor het ek duidelik gestel ek kan glad nie een van daardie personne ongelukkig meer eers identifiseer nie. As gevolg van die feit wanneer jy 'n aanklaer gaan sien dan woord die saak automaties bespreek jy weet. Ek praat nou van in 'n gewone verhoor of 'n gewone ondersoek. Kom ons veronderstel dit was 'n huisbraak gewees wat ek geondersoek het jy gaan sien die aanklaer, die saak word bespreek. Miskien verwaar ek die twee situasies. Alhoewel ek twyfel. Ek dink ons het in gekom, ons het die saak net in kort bespreek en toe is vir my gegee en gesê: "Jacques hierso. Hier is die vrae en antwoorde, antwoord dit so." Maar as ek reg kan onthou het ons eers net gestaan en net vinnig oor die situasie gesels. Maar die indruk wat ek gekry het hulle was reeds, nie die indruk nie. Dit is 'n feit nadat ek die vrae ontvang het, het ek besef hulle was reeds in gelig ten volle wat gebeur het. Miskien wou hulle net seker maak dat hulle inligting die selfde is as myne. Ek weet nie.
MR MALAN:: Kaptein Hechter het hierdie tipe dinge dikwels gebeur?
KAPT. HECHTER: Nee dit is soos ek vir die voorsitter gesê het dit is die enigste keur wat dit met my gebeur het. Ek weet nie van ander gevalle nie voorsitter.
MR MALAN:: As dit so buiten gewoon is hoekom kan u nou nie die geleentheid onthou nie? Ek moet dit seker maar daar laat want ek wil u regtig nie onder kruisverhoor neem nou nie. Maar dit is vir my bitter vreemd dat so iets buitens gewoonts waar u die potensiële beskuldigde is waar al die goed vir u gegee word dit nie so belangrik is dat u eers name of personne of hoeveelhede kan onthou nie maar u is dood seker die vrae en antwoorde was vir u gegee by die geleentheid?
KAPT. HECHTER: Dit was elf jaar gelede gewees wat hierdie plaas gevind het. Ek het met so veel mense in 'n tydperk van elf jaar te doen gehad. Ek het met so veel gebeurtenisse. Ek dink ek het in twee jaar van my lewe meer gelewe as ander mense in seventig of negentig jaar van hulle lewe, wat met my gebeur het in twee jaar se tyd. Waarvan twee derdes 'n mens nie graag van jou lewe wil onthou nie. Dis al verklaring wat ek vir u kan gee.
CHAIRPERSON: Thank you captain Hechter. Did you ever discuss this matter with general Engelbrecht and general Joubert?
KAPT. HECHTER: Voorsitter nee ek het glad nie met die weermag kontak gehad behalwe op die geleenthede wat ek genoem het in my amnesty aansoek. Ek verstaan u praat van generaal Engelbrecht, nee dit is generaal Vikter waarna ek vermoet u verwys. Nee ek het hom na die oorspronklike keur wat hy my die opdragte gegee het, het ek hom nie weer gesien in 'n amptelike of net in amptelike hoedanighede, maar ek het nooit weer terug gerapporteer aan hom nie. Ek sou hierdie voorval wel aan my bevelvoerende offisier gerapporteer het. Ek het dit egter met hom bespreek nou na tien, elf jaar. Brigadier Cronje, hy kan dit nie meer onthou, die voorval nie.
CHAIRPERSON: Jammer, met generaal Geldenhuys?
KAPT. HECHTER: Glad nie. Nee ek het geen kontak met daardie mense gehad nie voorsitter. Ek het net die keure wat ek generaal Joubert in die teenwoordigheid van brigadier Cronje gesien. Dit is al wat ek ooit met hulle kontak gehad het, generaal Joop Joubert van die weermag.
CHAIRPERSON: Did the other gentleman who was going to be preparing the same way, do you know if he had any contact with these two gentlemen?
KAPT. HECHTER: Ek vermoed u verwys na die weermaglid?
CHAIRPERSON: Yes.
KAPT. HECHTER: Ja, ek neem so aan. Ek weet nie. Ek kan u ongelukkig nie antwoord nie maar hy het gewerk vir die weermag. So ek weet nie wat sy bewegings was en of hy hulle wel weer gesien het nie. Ek neem aan hy moes.
CHAIRPERSON: Thank you. Hanif?
MR VALLY: Thank you Madam Chair. Just one last question. You say in your submission that you talk about it as confirmation of the total cooperation of all structures. Can you just give us details of what you actually mean regarding cooperation of all structures?
KAPT. HECHTER: Voorsitter ja dis moeilik om feite te gee. Ek het net aan geneem op daardie stadium ek is 'n kaptein, daai tyd was ek 'n lieutenant in die Suid Afrikaanse polisie. Ek was saam met die weermag verbonde aan 'n operasie om politieke aktiviste te elimineer. Daarna kom 'n staats prokereur, hy neem my na 'n staats aanklaer toe en die staats aanklaer sê vir my: "Moenie bekommerd wees nie dinge is reg ons sal môre, môre sal daar nie verdere probleme wees nie." Soos wat daar was. Daar was geen verdere probleem nie. Dan lui 'n ou maar af dat daar samewerking moet wees op hoë vlak want ek was nie in 'n posisie om 'n staats aanklaer, staats prokereur enigsins te beïnvloed nie.
CHAIRPERSON: May I just ask one more question? To your knowledge was the state attorney involved in this as well?
KAPT. HECHTER: Voorsitter hy was saam met my daar gewees. Hy was teenwoordig tydens die gesprekvoering.
CHAIRPERSON: I don't want you to give me the names publicly because obviously one would want to give them notice but you do remember the names of the state attorney and the prosecutor in this matter?
KAPT. HECHTER: Voorsitter soos ek reeds getuig het die aanklaer kan ek glad nie onthou nie. Ek moet baie eerlik wees as ek sy naam moet sê ek kan vermoed. Ek het 'n vermoede wie dit is. Ek het hom gekonfronteer daarmee en hy sê nee hy was nie by gewees nie. Die aanklaer het ek nog nie weer gesien sedert daardie tyd nie en ek kan ongelukkig nie vir u sê nie. Al wat ek vir u wel kan sê is wat ons op die rekord, die hof rekord kon vastel.
Ekskuus tog ek het verkeerd gesê. Ek het die staats prokereur gekonfronteer wat ek vermoed het saam met my gegaan het. Nie die staats aanklaer nie, die staats prokereur. Ek het hom in 'n latere hoedanigheid, of in 'n latere stadium het ek hom in 'n private hoedanigheid ontmoet het toe het ek hom gevra: "Was jy nie die staats prokereur wat saam my die dag (...indistinct) het nie?" Toe hy dit - die Engelse het 'n mooi woord "vehemently" ontken. So ek kan ongelukkig nie vir u sê ja dit was hy nie. Ek sal moet leën vertel as ek sê ja dit was hy. Ek vermoed dis hy maar ek kan nie sê dit is hy nie.
CHAIRPERSON: Tell me have you in fact given the amnesty committee the evidence in terms of the names?
KAPT. HECHTER: Ek vermoed ek het aan die kommittee die name gegee. Ek vermoed so.
MR DU PLESSIS: Madam Chair maybe I can clear this up. Captain Hechter could not remember the names even of the magistrate who was involved in this. When the record however was made available by the investigation unit we looked in the record and we saw the names reflected therein. And we mentioned the names then to the amnesty committee. Those are the names of the, that's the name of the prosecutor and the magistrate and the defense. The name of the state attorney however, and that is why captain Hechter was just, he referred to the prosecutor and then he again referred to the prosecutor. He meant to say the state attorney. He has a suspicion but he cannot remember a hundred percent and he did confront the person and he denied it. We could speak to you about that afterwards.
Madam Chair there's just one other aspect that I just want to place on record and that is about captain Hechter's memory. We introduced in the amnesty hearings a specific psychiatric report about the effect of post traumatic stress on the applicants that I present in respect of their memories. And my experience certainly with captain Hechter was that certain incidents and that is an effect of post traumatic stress, certain incidents he remembers very well and others not so well. We did introduce such evidence, such expert evidence and obviously his memory has been affected by that.
CHAIRPERSON: Thank you. Thank you Captain Hechter you may leave.
KAPT. HECHTER: Dankie u voorsitter.
CHAIRPERSON: Could I call Mr Skosana and Mr Naka please?
Thank you before you sit down I'm going to ask advocate Potgieter just to ask you to take the oath or the affirmations please.
Please state your full name?
MR NAKA: I'm Andrew (...indistinct) Naka
MR SKOSANA: Jacob (...indistinct) Skosana.
CHAIRPERSON: Thank you. I know that we, in a sense I feel that about the fact that we are running short of time. We do have both of your written submissions. I would ask that you address or highlight issues in that submissions and then just submit yourselves to questions if you don't mind? I think that has been explained to you. Thank you.
MR SKOSANA: Thank you chairperson. I was employed by the (...indistinct) department of justice as a public prosecutor from 1984 to 1992 and I'm going to highlight those aspects where there were serious flaws which emanate from (...indistinct) to which I also was a part. And my testimonial refer basically to the area of KwaNdebele which now is part of Mpumalanga province.
There were quite some number of interference by the executive at that part of the council in our functions as prosecutors. And the most common instance of interference is where the executive, the members of the cabinet would call the prosecutors and give instructions. There was one particular instance when in 1986 the minister of interior someone (...indistinct) to the chief (...indistinct) office and all prosecutors were instructed that there were certain group of persons who belonged to the (...indistinct) group. One is called (...indistinct) and other members of the executive who are not to be tried or to be charged of any offence. We tried to explain the position to the then executive that, that would lead us to problems and conflict with the office of the attorney general under whom we fell and under whose authority we prosecuted. But they didn't listen to instead we were informed that if we wanted to serve the attorney general we'd better leave the area and go to work in offices in Pretoria.
Those incidences inferred from that meeting one of the prosecutors was even dismissed from the meeting. Those incidences were reported to the attorney general's office in Pretoria but the office of the attorney general was reluctant to intervene in those aspect. And one of the consequences of failure to follow the instruction given by the executive was that the prosecutor would normally or would eventually not be appointed to the rank of a magistrate as the position must be. So prosecutors often found themselves in conflict situation that is where they had to apply the law and with a clean conscience and lost their jobs or had to be loyal to the government and keep their jobs.
Mr Naka will highlight on the issue of bail applications but what I need to highlight in this aspect is that whereas on the one side the office of the attorney general would issue a bail certificate preventing the granting of bail to those who opposed the government of the day. On the other hand as against those who were in governance, they themselves approach the prosecution and apply for bail and request the prosecutor that look we want this person to be granted bail, they would arrange bail hearings after hours. Come to the prosecutors, instructs the prosecutors this particular person must be granted bail and if the prosecutor was not prepared to comply thereto they would utilise then the sections 5 of the constitutional act whereby a police official would be appointed and be granted bail. The poor person who handles them would not be aware of that bail application only to find out the following day when you retrieve the cases you find that a certain policeman and magistrate outside (...indistinct) has been summoned. There was a special hearing that person has been granted bail.
Other aspects where I wish to make some highlights were the handling of case dockets. We were given instructions from them on all matters which involved the members of the executive and MP’s. We were given written instructions from the office of the attorney general that they should only be handled by certain officials and this in a way hampered our prosecutorial functions in the sense that we were not able to make our view or inputs or comments on most of the cases where the members of the executive were charged or accused. And in some instances the matter would go to the extent that the police would take the docket direct himself to the attorney general and would come back with the docket with the attorney general's instruction being endorsed on the docket.
I would just quote an example that there was even one case where some members of the executive were arrested for having forced some persons to walk on top of hot coals, fire. And we never had access to that docket. The docket was handled between the police and the attorney general directly and the only time the docket was brought to our attention was when the accused had to come and (...indistinct) admissions of guilt for those offences. And when we try to follow up we find that those decisions were endorsed by the office of the attorney general. Therefore there was a very close relationship between the executive and the police. (...indistinct) were manipulated by the government of the day to access and influence the office of the attorney general. There was for instance this where the office of the attorney general will make a decision solely on the report and the conviction of the police official without involving the prosecutor who sent him the matter.
As I've said earlier we did try to take up this problems with the office of the attorney general but a lot of (...indistinct) steps would be taken by that office and I was delighted to hear my former boss earlier on saying that perhaps they did not have powers over the police but they situation (...indistinct) was the other way around. In the sense that the police in fact did have powers over the office of the attorney general.
And from my personal observation the office of the attorney general could not effectively handle the problems as they experience by the (...indistinct) in that the staff of the office of the attorney general was overloaded with cases to the extent that they could not properly apply their minds to the matters referred to them or they deliberately allowed matters to go out of control.
However Chairperson, it is hoped that under the new constitution and in this democratic government that office of the attorney general will be restructured in a manner that will rid itself of the mistakes of the past so that we are able to regain the confidence of the criminal justice system on the people. And Mr Naka will capture those aspects which I not captured, which I've left out.
CHAIRPERSON: Thank you. Advocate Naka?
MR NAKA: Thank you Madam Chair. I must say I've been a magistrate in KwaNdebele for a very short period. Because it was from the 1st of March 1984 to the 6th of August in 1986. That I was a magistrate to my mind was not a mistake. It was my conscious and deliberate choice. After the experience I had in 1976 when I was doing matric in Bupeti Mapeti. I was one of the students that were arrested in that day for the protest that we had at our school. Subsequent to our arrest we appeared in a magistrate court where the magistrate was black, the prosecutor was black, the police officer investigating the matter was black. But the type of justice or the type of injustice that we got in that court persuaded me to pursue the legal profession.
And when I landed in KwaNdebele it was simply because I happened to have been introduced to James Mashlanwe and I got the bursary from KwaNdebele. But when I went in there I thought as part of the administration of justice I could make a difference. With the hindsight I realise that was naivety if not utter stupidity. The system (...indistinct) me completely. I went in there, I could not be independent. If I took a decision that the executive or any member of parliament did not like they would use the office of the secretary of justice to come down very hard on me for the decision that I took. And we were given instruction on a number of issues. Even though we tried to resist the orders that were given to us. But as my submission I mean will indicate, even though it's not a very good submission. It was just notes that I was making.
Because we tried to resist the orders that were given to us I was suspended and eventually locked up under a state of emergency. But prior to my being locked up, when I was dismissed I was just called to the cabinet and I was fired. And when I went to the secretary to say I was fired he then said you must come tomorrow you will get your letter of dismissal because I had insisted on it. The following day when I went there it was not a letter of dismissal but a suspension. And the charge that I was facing in terms of that letter was that I'm insubordinate, I refused to sign attendance register. But the truth was the secretary was covering for the dismissal that the minister has effected.
In terms of the interference with our duties. One: we were in a self-governing territory. It had the tribal authority and if we took judgements against those tribal authorities we would be told that we are encouraging the undermining of the traditional system in the particular area and therefore we are making ourselves guilty of insubordination.
And the other cases that Mr Skosana presided over it was a bail application by James Mathlanga, who was then a prominent opponent of the government of the day. He appeared there, he was arrested with his attorney he arranged or bail application. They sat I think until two 'o clock. Bail was granted and then lieutenant van Wyk he came to Skosana and told him look that is a very unpopular decision you took and it cannot be sustained and the following day James Mathlanga was again arrested and this time he was put under the emergency regulation so that we should not be able to grant bail in that particular set up. But there it be to be short on this aspect. It's I got in there hoping that I could make a difference in this legal system but I must tell you I was (...indistinct) by the system. We tried to complain because we were part of the department of justice anyway in South Africa. The prosecution, the team was part of the attorney general. We tried to protest and complain but nobody listened and at the end of the day I was kicked out of the system. Thank you.
CHAIRPERSON: Thank you. Hanif?
MR VALLY: Maybe we should start with Mr Skosana. Mr Skosana we had this strange situation where KwaNdebele was self-governing territory with it's own (...indistinct) for justice but the person responsible for the courts and for the prosecutors was the attorney general based in Pretoria, is that correct?
MR SKOSANA: That's correct. That is correct and as the situation worked that time the attorney general would only give you a certificate, a mandate prosecutor by the employment and the powers rested with the government. That's why wherever there was a conflict in terms of an instruction and the government we often fell prey of the government.
MR VALLY: When you complained to the attorney general in Pretoria, attorney general of the Transvaal did he ever support you on political issues?
MR SKOSANA: He never wanted to be drawn into a conflict situation. He never wanted to be seen in coming with (...indistinct) a situation (...indistinct) this aspect.
MR VALLY: On what authority did Lieutenant van Wyk take all dockets regarding cabinet ministers and MP’S directly to the attorney general in Pretoria?
MR SKOSANA: Initially lieutenant van Wyk came to office and told me that he had that instruction. That he was the only person within the entire homeland who is having the capacity to handle those matters which in fact I disputed. But I verified it with the office of the attorney general and what followed thereafter we were served with a written instruction from the attorney general's office indicating that all case matters involving the cabinet ministers and the MP’S had to be handled directly by lieutenant van Wyk with the attorney general and we should not interfere or access those matters. And if given that chance I would go and search for that documentation because we were all served with that document in all the prosecutors.
MR VALLY: So from your point of view was there unbiased justice meted out with regard to cases involving cabinet ministers and senior officials in KwaNdebele?
MR SKOSANA: I don't follow the question?
MR VALLY: Did the prosecution behave in an unbiased manner in determining whether or not to prosecute cabinet ministers or senior government officials in KwaNdebele?
MR SKOSANA: I may say yes. Because they were quite in a very difficult situation as I have indicated earlier on. Because they were always threatened. There were in fact two prosecutors who were expelled from the government for being trying to work in an ordinary manner with and treat those members of the executive the same way as other people.
CHAIRPERSON: May I follow that up with a question? Did you ever prosecute any members of Imbagoto?
MR SKOSANA: No.
CHAIRPERSON: Did you prosecute ANC activists in the area?
MR SKOSANA: What, on those political matters what would happen they would arrange a special hearing where a magistrate and a prosecutor would be deployed from Nelspruit to come and handle those cases which involved comrades. And we were perceived to be sympathetic to comrades therefore we were not trusted with those matters because the members of the executive felt that we could not stamp our authority upon them. Therefore there was a practice whereby people they were deployed from outside to come and handle those matters. Only with regard to the members who opposed the government.
And what happened to the matters involving members of the (...indistinct) and executive members, they were never prosecuted. But immediately after the change of government in the area all those cases that had been opened which involved (...indistinct) resurfaced. And there was some effort to reinvestigate those matters and charge those people thereafter, after the whole situation.
MR VALLY: Thank you Mr Skosana. I just want to ask Mr Naka this question. I think a lot of the area has been covered already and if you need to, especially on the issue of interference with your functions as a magistrate please raise it. But the one specific question I want to ask you is as a magistrate after you were appointed in 1984 were you allowed to preside in cases where white people were accused?
MR NAKA: No sir I was not. In one specific case it was seven police officers that were charged for assault. Six of the seven were white and they came with their lawyer. The complainant because he suspected we perhaps not be doing our job properly has instructed - I think it was Post Maloto who had (...indistinct) the police had just pleaded and when we were about to call the first state witness in that particular case the chief magistrate in that area heard that I was going to try this white police officers. He came in, he ordered that the trial should be stopped. And he removed it from my court and up to this day I don't know what happened to it. But we were not allowed to try any other race except blacks.
MR SKOSANA: I want to follow up on that matter because I remember I was prosecuting that matter. And in his approach the chief magistrate was also white, he shouted me from outside through the window that I must stop that case because he wanted to see me in the office. I ignored him and proceeded and he entered the court room and took the charge offence and took the charge sheet and the records before the presiding officer. Disturbing the whole proceedings and we had to adjourn and he had to reprimand me strongly that I was not allowed under any circumstances to bring any white accused person before Mr Naka. All matters which involved whites had to be taken over through his office. He would redirect them to Pretoria for proper magistrate and prosecutor to be deployed to a area.
MR NAKA: May I just add? At all material times the secretary of the department of justice and the chief magistrate were all the time white and they were part of the department of justice in South Africa.
MR VALLY: Thank you very much.
CHAIRPERSON: Thank you very much Mr Naka and Mr Skosana. This is, this particular area, the KwaNdebele area falls under the Gauteng office and we do have a special project around what did happen as a result of the question of independence in that area. So we will probably be coming back to you to answer some more questions on that issue. Thank you very much for coming today.
MR SKOSANA: Thank you Madam (...indistinct)
CHAIRPERSON: May I call Mr Hendrikse please?
Mr Hendrikse before you actually sit down I'm going to ask Mr Malan just to ask you to take the oath please.
MR MALAN:: Mr Hendrikse the oath or the affirmation? (reads oath) Thank you.
CHAIRPERSON: Thank you Mr Hendrikse for being so patient. We know we're running hopelessly late. I'm going to ask you just to highlight the issue that you've raised in your submission and then Mr Vally will ask you questions.
MR HENDRIKSE: Thank you very much Madam Chair. I was appointed as a public prosecutor in the Wynberg magisterial district in the Cape in 1987 where I served for approximately only one year. There were three different matters which arose during my term of office. The first one related to my refusal to prosecute persons under the group areas act. At that time there was an unofficial moratorium on prosecutions but then as a result of Conservative Party pressure on the National Party and to alleviate this "broerder twis" between the two it was decided to make a couple of examples of people. In this case it involved another and a son that was living in Observatory at the time. I refused to prosecute it and I'd informed my seniors of my reasons why not as well.
The second matter related to a public violence case of which five youths were charged with stoning a bus. There was absolutely no evidence connecting them to the alleged offence. I was informed curtly by my senior prosecutor: "Sien maar hoe ver kom jy." I was therefore instructed to go on a fishing expedition. When the matter did start the state witness the bus driver perjured himself by saying that he saw the perpetrators which he clearly denied in his statements and I made his statements available to the defence again it wasn't supposed to be the correct procedure that I was to follow. I was then called in and told what the correct procedure was.
But clearly it was also then assumed that prosecutors would abide by the sort of perjury and not do anything about it. And the tragedy of the matter is that too many of South Africans went or ran the gauntlet of trial and prosecution simply based on the morality of the particular prosecutor. There were no rules as such. You were obliged to have allegiance to the government of the day not the rule of the law. And this is the sort of circumstances you actually then worked under. Prosecutors at Wynberg were regularly called in and given the speech by the senior about working for Pepsi Cola and Coke a Cola and stuff and given the simplistic comparison that when you work for the state you work for the government and you are supposed to do, apply the law. No exceptions are made and the rule will always be applied no matter what your objection is to a particular law. And notwithstanding their own acknowledgement that for example a law such as the group areas act is immoral they simply condense and said you have to do this.
The last matter also related to a public violence case. And by that time I was a bit fairly sick because I thought well if this is the things, the way things are going to happen here. It was again a public violence case and I'd simply refused to prosecute because at that time it was part of a government strategy that to classify persons involved in a struggle for democracy as common criminals. It helped to assuage their own consciousness and also helps in their propaganda to show that the people in the struggle are all just common criminals with no respect for the law. And I refused to be part of that sort of nefarious scheme and longer.
I also wish to point out that many of my colleagues were placed in invidious dilemmas because they felt like I felt but because of bursaries and family commitments they could not actually leave the service. It is, I indicate an indictment of the legal system itself that no scope is allowed for conscientious objection in such a service. It is something which will not happen as a rule but exceptional circumstances will appear. In this particular case it involved the actual law. It wasn't something based on evidence but it was a fact of the law itself being immoral. Of the law itself being then criminal; if you want to call it as such.
A further aspect which I just want to raise was the issue of upward mobility within the department of justice at that time. I had a specific interview with one of my erstwhile colleagues, Mr Ben Julius and he's indicated that he doesn't mind his name being named here. And he said that at one occasion he was interviewed by the then stated attorney general, Mr Roussouw who was here as well as the then chief magistrate, Mr Theron and during the course of that interview he was specifically asked what his attitudes was towards the group areas act and as well as to influx control. When he indicated that he was against such laws and measures he was then informed that doesn't he know what the consequences of the repeal of such laws was. Blacks will move into your neighbourhood and he was informed that blacks usually come in with families of ten or more and that property values will decrease as a result of that. I mean that has got nothing to do with a person's capability to do the job or not. And at the end of that particular interview the chief magistrate told this Mr Julius: "Ek sal my arm stomp af baklei laat jy nie op die bank kom nie." It's a clear reflection that what they looking for is political allegiance to the government of the day and not looking at the person's professional capability.
In his particular case he was, whereas normally a person becomes permanently appointed after twelve months. He served for five years on a temporary sort of basis. They refused to actually appoint him permanently in that particular post. So that's the sort of thing that you went through in that department of justice. And I also note that if the consequences of these policies and the actions of these persons were not as traumatic and as dehumanising as they were then new-found sense of justice and defence of morality was actually very laughable. I mean they sit here and by rote talk about being regretful of what they did but they didn't do anything else. I mean they never once even decided not to do something when they in turn clearly had the power to do it and to raise up a sort of Nuremberg sort of defence of "No we were incapable ...
MR VALLY: though made that had to do with a prosecution of a public violence matter which was assigned to you, this is the second one. Can you just briefly tell us what happened, just briefly?
MR HENDRIKSE: Well what happened was that as soon as I indicated to my senior in Athlone, because I was stationed in Athlone at the time, that I refuse to prosecute this I was immediately summoned to Mr Roussouw's office. He asked me, I explained to him why I was not willing to be part of this sort of thing. And also that previously there were certain courts that were set apart to do this public violence because there were prosecutors as well as magistrates who didn't object to doing public violence cases. And I made my reasons known to him. He simply said that he's sorry, that I'm there to do a job, I don't have a choice in the matter and that if I don't do this job he's going to transfer me to the clerk's office to work with the receipt of fines. And then he also indicated that because there is no post available I would then be retrenched. That was a nice way of discharging me but avoiding having to give reasons for my discharge because it would be treated as a retrenchment because there is no post available in the clerk's office.
MR VALLY: And what did you do thereafter?
MR HENDRIKSE: Well I resigned and went out and searched for articles and finally did get it.
MR VALLY: One last question which is the public violence case where you mentioned where because the bus driver had perjured himself you handed over the statements to the defence team. Firstly it wasn't anything untoward when you did that, wasn't that your duty as an officer of the court?
MR HENDRIKSE: Yes that is your duty, you either have to declare it, the procedure actually is to declare the person a hostile witness sort of thing because he's deviating from his statement. It's a whole list of questions you have to then put to him. You have to inform the magistrate what you are doing and then go about and do it that way. That was the preferred way. I simply got up and said: "Excuse me," and I walked across to the table. And that wasn't supposed to be, especially in the light of the fact that it is a public violence sort of case. They were very touching about public violence cases.
MR VALLY: Could you briefly tell us about the accused in that matter? Who they were, how they were dressed and why they were in fact charged?
MR HENDRIKSE: Well the accused were five youths. The one accused was a girl and the police didn't even give her the opportunity of getting dressed properly. She appeared in court wearing her night clothes. The reason for the arrest was the fact that two or three of them had a stone residue, almost like when you touching a vibracrete wall. That was the only reason why they were picked up because they had this sort of slight markings on their hand. There's nothing to connect them to the actual stoning of the bus because the driver says as soon as he saw the trouble he hit the deck and he used his hand to accelerate the bus. So he couldn't see anything. And yet I am told to go and prosecute when there's no reasonable basis for doing that.
MR VALLY: Thank you Mr Hendrikse.
CHAIRPERSON: Questions?
?: Mr Hendrikse you know those courts that you refer to are ones that I practised in for many years. And you know it brings back a lot of memories. You know what I couldn't understand, look that was about the middle 80's when we had all those public violence cases in the Western Cape. And there were a number, to the best of my recollection there were a number of young black people who were prosecuting in those days in some of those courts, Athlone, Wynberg, in the suburbs. Not so much in Cape Town, in the city centre but, what was the situation were you as young people were prosecuting, prosecutors were you having difficulties, were you having conflicts, were you having some doubts about being part of the system and all those arguments that were going backwards and forwards in those years?
MR HENDRIKSE: Ja. Clearly there were a lot of doubts. As I indicated also you had a lot of these, a lot of my colleagues you had bursaries you know that you had to pay back to the state and if you leave the department of justice you're not going to get a work in a other department of a thing. And you had this sort of obligations in terms of your financial obligations and then there were some that had family obligations as well. And you know you try to make the system work for the better of the people that you are serving but then too many times you come against like a block wall and then you think that there's no justice. I mean in the one particular case; it wasn't my case but it was a white person that was found guilty in the Mitchell's Plain court and he was sentenced to a whipping but the magistrate, a white magistrate ordered the person must be transferred to Wynberg because we can't see the white bums.
But that is the sort of thing that happens. You come up daily with this sort of conflict within yourself and that is why it was only after just about a year I decided that if this is the way things are going to happen. I thought I'm gonna be there to assist victims of crime and so forth. And you had all this nice quotes from the university about the sanctity of the law convicting the guilty and letting the innocent go. That meant nothing in practice and that really depresses one. And I was in the fortunate position that I could leave when I did leave.
PANEL: Thank you Mr Hendrikse. I personally witnessed some of the anguish that some of these young people went through when they were confronted with having to prosecute. Especially these public violence matters where these young school kids were throwing stones and that sort of sort of situation.
MR HENDRIKSE: That's right.
PANEL: Thank you.
MR HENDRIKSE: You had a situation of you're living in the area and then you're going to work and then in court you seeing these very people that you grew up with around you or colleagues that were at university with you and now you're sit on this side. That is a particular (...indistinct) Maybe we are a bit naive in thinking that we could help from (...indistinct)
CHAIRPERSON: Thank you Mr Hendrikse.
MR HENDRIKSE: Thank you very much.
CHAIRPERSON: I think you've shared the same kind of experience that your colleagues in the KwaNdebele area has experienced as well. And I think it's very useful for the commission to hear about the dilemmas that black professionals faced when they worked in the judicial system.
MR HENDRIKSE: No I just want to thank the commission and the panel for opportunity as well. Thank you very much.
CHAIRPERSON: Thank you. Could we now ask the long- suffering department of justice officials to come forward please.
I'm being asked to allow the smokers to have a smoke break so just a five minutes body break please.
Thank you. May we ask people to take their seats again please? We'd like to welcome the director general of the department of justice and his colleagues. And before I ask you to take the oath I'm going to give you permission to take your jackets off.
Thank you. May I ask you to stand so I can ask Mr Malan to ask you to take the oath please?
MR MALAN:: Mr may we just have your full name and the names of your colleagues please? Would you just press the red button there to get, that's it.
Jasper Jeugens Neidt: Jakobus Herslui Braille: Jakob Daniel de Bruin: Elias Rasavarte
MR MALAN:: (reads oath)
CHAIRPERSON: Thank you for coming. I'm sorry that you've had to wait such a long time today. I understand that you will just highlight areas in your submission and that we will then be asking you questions. Could I ask you to go off and start please?
MR NEIDT:: Chairperson thank you. Honourable commissioners thank you very much for the opportunity. We have made a full submission on behalf of the department of justice. The submission was prepared by myself, my colleagues and also with the assistance of the planning unit of the department of justice.
So the submission you have before you is for the department of justice as it existed prior to 1994. You're probably aware we've received a request from the commission to deal with the department of justice since 1960 up to 1994. The minister dealt the other day with the position since 1994. Now since 1960 you're aware when we were one department of justice I presume there arose another ten departments of justice for the so-called independent homelands and six self-governing territories each of them with their own department of justice and their own ministers of justice. Although I must point out to you that the self-governing territories I think were still subject to the control of the attorney general. The independent homelands had their own minister of justice. And I must just bring it to your attention at this particular point in time that we don't have full submissions as far as those aspects is concerned. So I will be dealing with the department of justice since 1960.
You must also realise that 1960 was a long time ago. I had to look up and make sure whether I was in the department of justice at that time but in fact was. But of very, very little significance. This particular submission is to give an account of the history of the department. It is not our role to defend or to justify the department's record. It's our intention to recount the role of the department during the Apartheid years for the express purpose that we do not repeat the mistakes that were made in the past. We've tried to be even-handed in our approach. We've not vilified individuals. Indeed individuals have not been named in our submission because we do not believe that it is necessary to do so. We want to build and not to destroy. We have therefore tried to match our honesty with sensitivity.
I'll just highlight from here on. The administration of justice as you may be aware since 1999 placed the administration of justice throughout the Union of South Africa under the control of the minister of justice as the political head of the department of justice. And since that time until the interim constitution parliament was supreme. We've heard that already over and over again. So that is nothing new to you. But parliament was supreme and parliament could make laws at their own will.
I won't deal with the details except to say that at one stage that the department of justice, the minister of justice was also the minister of police. Later on from September 1966 until April 1974 the minister of justice was also again the minister of prisons. And from May 1974 to June 1979 also again minister of police. From 1980 to 1990 the prison service was part of the department of justice. They fell under the same minister.
We've given you some details as to the appeal court. The only new court brought into existence by the South Africa Act was the appellate division which became the common appeal court for all the provinces. There were limited rights of appeal from the appellate division to the privy counsel until appeals to the privy counsel was abolished by the privy counsel appeals act 1950. The superior courts we name them. Then I go to just point out that after granting sovereign independence to Transkei, Bophutatswana, Venda and Ciskei a high court was established in respect of each of these newly proclaimed independent states. The high court of Transkei had been seated at Umtata. I won't go into all the seats of the various divisions. The appellate division of the Supreme court of South Africa however remained the appeal court for appeals for all these new high courts. This change made through, with the except of Venda the other states established their own appeal courts. These appeal courts were abolished by section 241 of the interim constitution of 1993.
I won't go into detail as far as the lower courts is concerned except to say that we had a magistrates courts, that's the district courts and the regional courts. They were proclaimed in terms of specific acts which gave them their jurisdictions. Jurisdictions of these courts were raised from time to time until eventually the regional courts had jurisdiction, had greater criminal jurisdiction than district courts. In criminal matters the district courts had jurisdiction over all offences except treason, murder and rape. The regional courts ultimately had jurisdiction over all offences except treason.
Magistrates courts were in terms of the inquest act of 1959 empowered to conduct inquiries into deaths apparently occurring from causes other than natural causes. This included deaths in detention. Magistrates also performed a number of agency functions which I listed for you. I think that to a certain extent it may be said that magistrates was as far as the agency functions was concerned also the representative of government. Especially in the rural areas. In such an office the magistrate of the district was responsible not only for both the criminal court work and the civil court work but also bore ultimate responsibility for all the above-mentioned administrative functions discharged by his office.
Then chairperson there were the special courts for black people. Besides the ordinary lower and superior courts special courts were created for black people during the Apartheid years. These courts dealt with civil disputes between black people. In their decision the courts could refer to traditional law and custom as long as these were not in conflict with the principle of public policy or natural justice. These special courts were not administered by the department of justice but by the department of co-operation and development. There were four courts in this regard. The chiefs courts, the commissioners courts, the appeal courts for the commissioners courts and the divorce courts for black people. Just recently we introduced legislation to deal with the divorce courts for black people during the course of this session. This section has described a statuary creation of the legal system.
Chairperson I just want to point out that as far as the special courts for black people and I deal with that in my submission later on, there's was quite a long tug-of-war between the department of justice and the then department of co-operation and development. This particular department had various names I couldn't keep track with all the names it had. But throughout as far as I know and since I came in the department we were not happy with the fact that they had two systems of justice. One for black people and one for white people. Ultimately in 1979 the Hoekstra commission was appointed and the Hoekstra commission specifically dealt with this aspect. And the Hoekstra commission said we couldn't carry on like this and these courts were then abolished and they came to the department of justice as far as their court functions are concerned. But as far as the administration was concerned they were still part of the then department of co-operation and development. But as I said long before this we've got a pile of correspondence as far as this is concerned which I can make available to you in this regard.
And one of the reasons, and I think you'll probably ask me on this, one of the reasons for not employing - sorry to use the term again, black people in the department of justice was the policy was at the time that black people must be appointed in the department of co-operation and development and not in the department of justice. And after these courts were abolished we went back to the public service commissioner and we said to the public service commissioner but there is no reason why we can't appoint black people any more. And you must just realise the prescripts at the particular point in time were prescribed by the public service commission. Which was very powerful and told you who you can employ, at what salary and for what specific purpose.
And eventually I think in 1986 they agreed that we can appoint all people. And since then the department of justice became available to all people of this country. I must say that this was one of the aspects that, as far as we are concerned which gave us a lot of headaches and we're really were very happy when we ultimately reached a stage where we could appoint anybody who applied for it. Because one of the problems we were battling with in that particular point in time was the fact that we didn't have enough prosecutors. If you look at the first or the second Hoekstra interim report you'll find that judge Hoekstra were complaining about the fact that we had such a shortage of prosecutors and we couldn't appoint people of colour. Well one of the reasons was obviously the salaries. Mr D’Oliveira this morning referred to the salaries. I can keep you busy for hours around about the salaries of prosecutors.
The next aspect I want to deal with is the role of the minister of justice. The minister was the political head of the department of justice and as such it was his function to carry out the policies of the government of the day. The government at the time enacted a number of statutes that are generally referred to as the security laws. In general these laws were aimed at and I want to quote: "ensuring the security and maintaining public order," unquote. They gave various powers, functions and duties to the then state president or the minister of justice. Among these acts were the suppression of communism act of 1950, the public safety act of 1953, the riotous assemblies act of 1956, the unlawful organisations act of 1960, the terrorism act of 1967 and the effective organisations act 1974. All these laws were administered by the department of justice.
PANEL: Mr Neidt, just before you proceed I mean we've just completed page 14 of a 100 page submission and you did make it available to us in advance I wonder whether you could perhaps be a little more discerning in what you.
MR NEIDT:: Alright the next point that I just want to say to you as we deal with the various sections as far as security legislation is concerned what was contained in the various sections and we also gave you some statistics in this regard. Unless there are other questions I leave it at that except to say that I think it was later on 1979 that the state president appointed a commission of inquiry into security legislation and this became known as the Rabie commission. The purpose of this commission - I'm on page 34 now, was to inquiry into and make recommendation to ....(...indistinct)
PANEL: ...(inaudible)
MR NEIDT:: Ja. Recommendations on the necessity, adequacy, fairness and efficacy of legislation pertaining to the internal security of the republic. The internal security act of 1982 which came into effect on 2 July 1982 was drafted after consideration of the Rabie report. It was not so much a new piece of legislation as a consolidation of most of the old security legislation. Chairperson I won't go into all the detail but it's contained here and you will see that the security legislation moved between the minister of justice and the minister of which was then minister of law and order. And we also give you once again all the details there as far as we could.
I just want to stress as far as this particular period of time is concerned, the security legislation is concerned in the department of justice we still have all our files. I think they are about 20 000 and we extracted this from the files. All the information is available should the commission require further information we'll kindly assist but we've kept them. The only problem we have at the moment is that everybody wants to do research on these matters and I'm just scared that the essential parts of these files may disappear. But Mr du Bruin is with me and that's why I brought him along. He's in charge of that and it's securely locked away and we try our utmost best but I must tell you various people come to see these files if they want particulars as far as pensions are concerned, they want to do research. I think there were people from overseas they recommended us that the state of the files be kept but everything is available there. And I just want to point out if there's any specific matter. I just want to stress because it was raised this morning. But I confirm it with Mr du Bruin that there are quite a number of reports for all the magistrates who visited people who were detained in a particular point in time. I don't have the details but if you want to look at a specific report; what was said and what was done in this regard. We have quite a number on file. Chairperson I think I'll leave the security legislation at that and if you're impressed with me going to page 34 I'm going to jump to the next page.
At page 54 we give you the head office of the department, what it consists of. It's unfortunately we've done a lot of work. I did want to give you all these matters. But any how. Then the role of the director general. I just say that mainly the functions of the director general was to manage the staff but the most important function of the director general is to as far as I'm concerned he is the accounting officer of the department of justice. So he is responsible to parliament to keep within the limits of his budget.
And we also speak about the grading of the posts and then in the involvement of the state security council I should perhaps just refer to page 59. The state security council was one of four cabinet committees, you should have known that perhaps already. It was the only one that was created and prescribed by statute and the director general was a member of the state security council.
I won't deal in detail with policy making and implementation. And then at page 62 I give you the personnel in the courts. And at page 63 I give you some details of what the position was as far as representivity in the department is concerned. And then at page 64 I deal with the whole question of the situation where we came to the point where we could appoint also other people of colour. Then I give you a short description of the law advisors, the legislative process - I was asked to make submissions on this. I think there's also a section dealing with the attorney general's office, office for the serious economic offences, the state attorney's office and the judiciary. The role of the judiciary I think we've heard a lot about. What I said here is merely a repetition of what has been said before the commission already since Monday. I'm not going to quote or go into detail. Chairperson I hope I'm not going to quickly for you.
The appointment of magistrates I deal with and how they become independent, what year they became independent and then once again the special courts for black people I set out in detail. I've already dealt with that. Appeal court for commissioner's courts I've already dealt with that briefly. Divorce courts for black people and the lay assessors, when they were introduced. A short section on the interpreters and then there's also a short section on the department's relationship with the legal profession. But I think the legal profession was here. They explained the situation fully to you so it's not necessary to go into that.
I think justice college, perhaps I just want to mention that justice college has been handling the training of officials in the department of justice. It was started in the 40's, in the early 50's. And as usual there were teething troubles but I think today we are proud of what justice college has done and in this respect I specifically want to make mention of the human rights institute which we have at justice college and that we are training our people at an extensive rate in human rights. Since we have received the interim constitution, even before that we started training our officials and I must say this particular institute is doing an excellent job. But apart from that the justice training college also train officials for various other state departments. I've given you details.
Then I think chairperson the most important part I want to bring to your attention and say that since 1990 to '94, even before that the department became fully involved in a transitional process to a democratic dispensation and various offices of the department made an important contribution in this regard. And I don't want to list them here. Except to say that I think that many of us who were in the department were glad to get the opportunity to be of assist with the knowledge you had and to try and expedite this whole process. And as far as the department's head office is concerned we are just about fully representative today and the various bills the minister has handled here these were drafted, some of these we even started drafting before the elections. We even took steps to put up the constitutional court before the elections. I was personally involved in negotiations with members of the ANC. I said to them it's obvious that the most important aspect for the department of justice is going to be the constitutional court and if we wait until ...
... after I've consulted them and I authorised the department of public works before that to start building a constitutional court. And that's why we could get a constitutional court so quickly off the ground.
Then chairperson I think it's very important - I will probably be questioned on this but, at page 102 I just want to stress this in the spirit of truth and reconciliation we submit that many of the practices within the ministry in the department of justice between 1960 and 1994 were an affront to human dignity. In this respect we refer particularly to our administration of the security legislation, to the structuring and functioning of the court system and to our departmental employment practices. We acknowledge that we failed in the task of providing a fair system of justice for all South Africans. Our administration of justice was not even-handed in all respects. Through our court system and the laws we upheld we failed to protect the basic human rights of all the citizens of South Africa. Our employment practices denied people equality and dignity and for that we apologise.
As pointed out in the beginning this is a factual submission and it is trusted that it will enable the commission to judge the department's administration of justice during the period concerned. I want to conclude by saying that there's so much during this particular period and it seems impossible to put everything in writing but if there's a need for further information we'll try to assist. And I just want to say Mr Rasafarti is here with me. He was formally in Lebowa. Mr du Bruin and Mr Braille and they made an excellent contribution in preparing this particular submission. I didn't have the time personally to do it all. I was involved and of course as I said the planning unit, various other senior officials like Mr Picolli of the department of justice assisted in drafting it. And unless there is something else you want me to highlight I'll leave it at that.
CHAIRPERSON: Thank you Mr Neidt. Hanif?
MR VALLY: Thank you Madam. Advocate Neidt we've gone through your whole submission. It's quite an extensive one. There's just a couple of issues that I would want clarity on. The first issue you mentioned early on in your submission of the internal security office of the department which was involved in gathering information about individuals, organisations and publications and making recommendations to the minister. Very briefly tell us what kind of recommendations did you make?
MR NEIDT:: Chairperson can I ask Mr du Bruin because I think he's one of the people who has the most intimate knowledge of that particular department, to respond to that.
MR DU BRUIN:: Thank you Madam Chair. Madam Chair the practice at the time was that the suppression of communism act in particular specified certain grounds on which the minister could act against a person or an organisation or a newspaper. Now the police and later on the national intelligence service they submitted memoranda containing information. That information was scrutinised by the offices of this particular section and advised the minister whether the information and facts contained in the submissions by the police or the other security instances complied with the requirements of the act. And then it was left to the minister of justice whether he would like to act against the person or make a submission to the state president, the cabinet for the declaration of an organisation to be unlawful or the prohibition of a publication. That was about all.
MR VALLY: So you didn't actually set out instructions that so and so should be eliminated or anything of that sort?
MR DU BRUIN:: No, none whatsoever.
MR VALLY: You did set out instructions that so and so should be banned?
MR DU BRUIN:: Pardon?
MR VALLY: You did set out instructions that so and so should be banned?
MR DU BRUIN:: Ja, Ja.
MR VALLY: Or this organisation should be declared unlawful?
MR DU BRUIN:: Ja in terms of whether the provisions of the act are complied with.
MR VALLY: So this is the internal security branch of the department of justice. And it operated there from 1960 to 1982?
MR DU BRUIN:: Yes.
MR VALLY: Whereafter it went to the department of (...indistinct) security?
MR DU BRUIN:: Law and order.
MR VALLY: Law and order. Let's just move forward. You also had something else besides the department of - sorry the internal security branch you also had directorate of security legislation which was in the department of justice but controlled by the minister of law and order?
MR DU BRUIN:: Madam Chair after the Rabie commission made his recommendations the internal security act 74 of 1982 was enacted by parliament. And in terms of that act there should be a director of security legislation appointed by the minister of justice but the director of security legislation he made submissions to the minister of law and order. So administratively the director of security legislation he was still under the minister of justice but otherwise he made recommendations to the minister of law and order. That's the only difference that came about.
MR VALLY: Okay. Lets' move forward again now to section 29 detentions.
MR DU BRUIN:: Which page is that?
MR VALLY: 44. I beg your pardon. You say therein that the state of detainees made reports to the attorney general regarding assaults. Sorry you may not say that on exactly that page. You say it on the next page but it starts there. Are you aware of any reports of assault which were reported by the inspector of detainees to the attorney general from which prosecutions followed? Or firstly were there any reports of assaults made?
MR DU BRUIN:: Chairperson we kept a register on all the complaints especially the assault complaints. And I think we can bring it to the commission if the commission would like to see it. But we checked on every report and we also refer it to the particular attorney general and also asked the police for their comments and their reports. But we have a complete record of all the complaints. And all the out-comings and in certain instances there were prosecutions.
MR VALLY: Can you give us an idea what percentage of complaints were investigated further and prosecuted?
MR DU BRUIN:: Well it's a very, very small percentage.
MR VALLY: Less than five? Less than ten?
MR DU BRUIN:: Well I think it's less than five.
MR VALLY: Were there many complaints of assault?
MR DU BRUIN:: There were quite a lot.
MR VALLY: Where you saw there was a pattern of assault of section 29 detainees did the department of justice in itself do any investigation regarding these reports of assaults?
MR DU BRUIN:: No but Madam Chair I must explain again. Since '82 the director of security legislation worked actually for the minister of law and order. And it was reported, each and very instance was reported to the minister of law and order. And you will recall that at a certain stage some of the judges especially in the old Natal indicated that they would resign from the bench rather to apply the security act. And then the minister of law and order, he once again he issued certain directions to the police and he himself conducted certain investigations but not by the minister of justice.
MR VALLY: You're not aware of any investigation within the department because of the reports that the inspector of detainees had been giving you regarding assaults?
MR DU BRUIN:: No.
MR VALLY: Let's just talk about section 29 detention. Pages 47 to 49 of the submission there is a reference to the board of review. As, you see it board of review regarding section 29 detentions? This was established in terms of section 35 of the internal security act. Now as human rights bodies at the time it would be interesting for us to know did such a board actually exist?
MR DU BRUIN:: Yes.
MR VALLY: Can you tell us who the judges were who sat on this board?
MR DU BRUIN:: Well I can't recall the names but I think the first one was a Mr justice Human. I think he was later succeeded by Mr Justice van Reenen. I thin they both died in the mean time. And then there was Mr justice Heath. I think those were the judges involved. Human, van Reenen and Heath. Ah, no not Heath, MacGreath, sorry.
CHAIRPERSON: Sorry may I just follow that up with a question? That board of review also included an attorney, a practising attorney?
MR DU BRUIN:: Yes.
CHAIRPERSON: Were the attorneys appointed? And did they function because we'd like those names as well?
MR DU BRUIN:: Mr Mike Odendaal, he was a practising attorney in Pretoria.
MR VALLY: My scribe didn't get the names of the judges down. It was justice Human, van Reenen?
MR DU BRUIN:: Justice van Reenen.
MR VALLY: Ah, and MacGreath? Thank you.
MR DU BRUIN:: I will make sure but I know that a justice MacGreath was also some time or other involved in that review committee but we can make sure about that.
MR VALLY: Was judge Myburgh ever involved?
MR DU BRUIN:: Pardon?
MR VALLY: Judge Myburgh?
MR DU BRUIN:: No, no.
MR VALLY: No.
CHAIRPERSON: Sorry before you pass on from that point, because I see you actually have the statistics, I presume these files are available as well?
MR DU BRUIN:: Yes each and everyone.
CHAIRPERSON: You see from just a practical experience reasons were never advanced for why people were still being kept in detention but you were then asked to make representations and you were never quite sure what you were actually making representations about. And I think what we would want to see are why some of those reasons for the refusals are. So if they're still in the files and I know that you've kept those files meticulously then we will.
MR VALLY: There is also provision for the involvement of the chief justice. In terms of section 41 the chief justice or other judge of the appellate division were given certain review powers. Was this ever invoked?
MR DU BRUIN:: No. Not in one case.
MR VALLY: So those review powers were never invoked?
MR DU BRUIN:: No.
MR VALLY: Now I'll just ask you a few more questions about this board of review. Part of the problem with the review is you didn't know that your client's matter was going to be reviewed.
MR DU BRUIN:: No his attorney could be present.
MR VALLY: How would he know?
MR DU BRUIN:: Well he was informed by the review board before the time that his attorney could be present.
MR VALLY: For the section 29 detentions?
MR DU BRUIN:: Yes. Look section 29 detentions only came up for review I think it was after six months. But in the case of detentions in terms of section 28 and restrictions in terms of section 19, 20 and 21. There were no problem at all.
MR VALLY: Because there is an instance of an advocate who took a chance and appeared and was fortunate enough to actually get access to a judge - I'm relaying a story. And he was asked to give reasons why his client should not be detained any longer. And he said: " Please tell me why you're detaining him in the first place?" And he was advised that; " we do not have to give you reasons for his detention." I'm trying to understand this that you made representations to why a client should not be detained. But you were not given the reasons as to why he was detained in the first place.
MR DU BRUIN:: Well the reasons were supplied or furnished by the South African police and not by the director of security and legislation. Because the police detained the person and they kept him in custody and informed him according to instructions by the minister of law and order and also as required by the act of the reasons for his detention.
MR VALLY: Well it was a standard thing that you are a danger to public safety; "We have reason to believe." That kind of standard statement.
MR DU BRUIN:: No, now look section 29 was used to detain people for questioning in respect of the commission of certain offences. And he was usually informed that they suspected him of having knowledge or himself committed an offences and they are wanting to question him.
MR VALLY: But they didn't tell you, you have done allegedly this, this and this and therefore we are detaining you?
MR DU BRUIN:: No we will not be able to tell that or confirm that. That's a matter for the police to come and tell the commission.
PANEL: Just if I could just come in there please. Quite a number of us ironically acted for people who were detained in terms of section 29, we never received a single notification, my office certainly didn't that someone's review was coming up and that we had a right to make representation. Telling the client, the person who is being detained who is being held incommunicado that he had a right to tell his lawyer is all very well but no one could have any contact with him besides the police. So what was the point of that?
MR DU BRUIN:: I can't speak on behalf of the police but as far as I know they were instructed to inform the detainee well before the time that his case was coming up for a review and he should arrange for some representations to be made to the review board or I don't know. But I'll go back and check the records of what they actually did. I doubt whether we would find it on our files. We will have to get to the police's files.
CHAIRPERSON: I think it's quite important because you see it's dealt with under the department of justice and of course one assumes that one of the things that the members of the board would certainly want to establish is whether or not the detainee's legal representative has been informed. And I think that the experience of most practitioners at that time was that you often only knew long afterwards. You were never in a position to represent your client at those proceedings.
MR DU BRUIN:: What we can do and will do is to get out all the files of the cases that went to the board of review and we can check up who the legal representors were, what otherwise the cases were.
CHAIRPERSON: Thank you.
MR VALLY: Thanks we appreciate that. I want to move on from the review board now.
PANEL: If I may just ask one question here on the review procedure. It seems that in every instance the detention was confirmed by the review board?
MR DU BRUIN:: Yes the section 28 detentions and all the 29 detentions.
PANEL: But at the same time the practice developed where they recommended or demanded the release for that release by specific dates. Was that the way of showing that they should not have been detained in the first place or? Why this funny kind of practice?
MR DU BRUIN:: No. I think in one case, a section 29 case the board of review recommended to the minister of law and order that the investigation should be completed as soon as possible and the detainee released. But in the case of the section 28 detentions you will recall the Nkondu case, we made mention of that. I think there were 23 persons involved. The others were a single one here and a single one there and in most cases it was recommended that detention was justified but steps should be taken to minimise the period of detention.
PANEL: We're talking about a number of about 600 detentions that you've given us information on here but in no single instance was the detention not confirmed.
MR DU BRUIN:: I think we are confusing the matter here. Because
PANEL: Please if you could explain to me?
MR DU BRUIN:: The 28 detentions there were about 48. It's restrictions, section 28 detentions and then section 29 detentions. You will see that the section 28 detentions are far in the minority (...indistinct) page 43
PANEL: I'm not sure that you follow my question.
MR DU BRUIN:: Page 43 there were only 35 detentions in terms of section 28.
PANEL: I'm not sure that you're following my question. I am referring to your statistics on page 48, 49 dealing with both section 28 and section 29 detention. You give them year by year and the result in every instance is all the cases were confirmed. And then with some rider. So it seems as if never the detentions up to the full period of the six months was ever questioned by the review board. That's really the.
MR DU BRUIN:: That is the actual position but in some cases I can recall they recommended that the investigation should be completed as soon as possible and the detainee released. You must just remember that the statistics here given in respect of some of the detentions and restrictions could have been in respect of the same person or persons. Because persons were restricted for more than a year and they had to be reviewed every year.
CHAIRPERSON: May I just ask a question because I think the point that's being made is that it seems that the review boards basically were just confirming whatever was being placed before them and exercised no discretion or any real sense of review.
MR DU BRUIN:: Well I do not want to speak on behalf of the members of the board at that time but they called in the police investigation officers and asked them for their reasons for wanting to detain the person for a long period. In each and every instance they called in the investigation officer.
CHAIRPERSON: May I just ask this question? Did any official from the department of justice sit in these proceedings? Were any of you in fact involved in these review proceedings?
MR DU BRUIN:: No. There were only a secretary who did the recording at the time. No one of us attended those meetings.
CHAIRPERSON: Thank you.
PANEL: May I just press this with another question really? Because I'm confused by this. It seems to me that in every instance the detention for the full period of six months was approved and confirmed by the review board?
MR DU BRUIN:: Yes.
PANEL: In every instance?
MR DU BRUIN:: Yes.
PANEL: But in a large number of cases specific dates were determined by the review board for the release of detainees. Was that a face-saving exercise for the detention?
MR DU BRUIN:: That I can't say to you.
PANEL: I mean can you explain that to me. On what basis would the review board be in a position to order the release at a certain date?
MR DU BRUIN:: Well the only explanation I can give is that the board was satisfied that the detention was quite justified. But they insisted that the detention should be shortened and they recommended to the minister of law and order that the person should be released by a certain time. Otherwise they would review that case again and then recommend the release immediately. That's the only explanation I can give.
MR VALLY: Thank you. You've got statistics for the period '82 to March '87 where - I'm looking at page 45. A total of 1604 persons were detained in terms of section 29. Do you have any figures for period from '87 onwards?
MR DU BRUIN:: Madam Chair what happened here is in March '87 the administration of the security legislation was assigned to the minister of justice with the exception of section 29. And I think a couple of other sections. The police they kept administering section 29. That's why justice department has got no figures in respect of that period.
MR VALLY: Okay. And prior to 1982.
MR DU BRUIN: Well we have all the statistics of prior to that date.
MR VALLY: In terms of section (...indistinct) detentions as well?
MR DU BRUIN: Ja. (...indistinct)
MR VALLY: Are they in this report anywhere?
MR DU BRUIN: Pardon?
MR VALLY: Are they in this report anywhere?
MR DU BRUIN: Ja.
MR VALLY: Sorry if you can just direct us to the page? Well maybe we can carry on while someone else in your team looks for that page. I also want to talk about people who were detained as state witnesses. From the period 1982 to 1989 on page 47 you tell us the 389 persons were detained. I'm looking at page 47E. Do you have any other figures?
MR DU BRUIN: No that's the only figures we've got. I think that since '89 there could have been a detention or two but I think that the practice was stopped that they detained people for, as witnesses.
MR VALLY: And prior to '82?
MR DU BRUIN: Ja prior to '82 there were a couple of but. If you look at page 32 from '76 to '82 493 notices were issued in terms of section 12B. That's the provision in the 44 1950 act.
MR VALLY: Sorry you said page?
MR DU BRUIN: 32.
MR VALLY: Sorry. Okay so 341 notices and then you had another 300 whatever odd. So at least between '76 and '80. Alright we'll have to work out the figures ourselves. It's just that the impression given to us by the attorney generals was it was minimally used and there's at least 300 odd in both periods you're talking about. Let's just go on.
Let's go to page 59 where you talk about involvement of the state security council. The department of justice's involvement with the state security council. Did the department of justice, specifically the director general and the minister sit in on all meetings with the state security council? Did the department of justice that is represented by the minister, the director general?
MR NEIDT: Chairperson I'll answer that since I was appointed on 1st February 1989, yes I did, as far as know I did sit in on all.
MR VALLY: And before that your predecessor?
MR NEIDT: I presume he was also sitting in on all those because it was prescribed by the act. And I presume he was also present at all these meetings. I just want to point out that the as far as I can recollect and the discussions I had with him. There was a period when the state security council wasn't as active until I think state president Botha was appointed. Then it met regularly. But before that it didn't meet on a regular basis. It only met from time to time. But I'm quite convinced that both of them, both my predecessors sit in on the state security council.
CHAIRPERSON: Just for the record just give us the names of your two predecessors please?
MR NEIDT: Yes. Mr S.S. van der Merwe, Fanie van der Merwe and prior to him Mr J.P.J. Coetser.
PANEL: And sorry if I can just come in there with a question? Advocate Neidt did you report as D.G. justice report to the security council?
MR NEIDT: No. Chairperson what happened at the state security council there was also a secretary, they call it the secretariat of the state security council. And they normally came there and they gave an exposition of the security situation in the country. And as a result of that there were discussions between the various ministers and then certain resolutions were taken as to steps that were taken as far as the security threat was concerned. There were also other matters they discussed but I can remember these and if there were instructions for example to say to go about an implement a - what do you call it? A state of emergency. Then the department of justice was asked to ask the police for the information, I think well in the time when I was there (...indistinct) national intelligence they had to submit full reports to the department of justice. We evaluated those in terms of the act. Sometimes we went back to the police and we said to them the information was not sufficient and then we made a recommendation to the minister and the minister then took it to cabinet.
PANEL: Now and then would you as representative on the state security council take back state security council decisions back to your department and will it filter down from there through you?
MR NEIDT: Well it all depends whether it was a decision which affected my department. The matters which affected my department were mostly matters concerning state of emergency which I can remember. The other matters were dealt with by the police and the security branch.
PANEL: Yes I mean matters affecting you. For example we heard evidence yesterday that for example prosecutors were shown videos showing the gruesome acts of terror by allegedly carried out by members of the liberation movements and this was a result of a directive from the state security council through justice to the (...indistinct)
MR NEIDT: Chairperson I just have to say here if that happened it was prior to my time. Definitely not in my time. I listened to a submission here this morning or earlier when somebody said there were certain directions given to prosecutors you'll find that fully dealt with in the Hoekstra report. What actually happened, I think it was contained in a code, we've got certain codes. And in that particular code I think it was prescript...
Of course there was quite an uproar about this and that particular code was immediately withdrawn. Now the Hoekstra commission was appointed in 1979. I was the chief researcher of that particular commission and it lasted till 1984. And it was during that period, I can't give you the exact date but I'll look it up, that particular code was done away with or was abolished. That I can remember but in my time there was never, never any submission. Perhaps Mr du Bruin can help here.
MR DU BRUIN: Madam Chair what happened there was in existence what they called the security management system country-wide. And that was an initiative by the S.A. police and the S.A. defence force. But magistrates and prosecutors were prohibited from getting involved in these systems. But in Durban at one time the police they organised some sort of film show for the prosecutors and when that came to the notice of the then director general the practice was stopped immediately.
PANEL: Chairperson I don't know whether we're referring to the same incident but I remember there was an incident when the magistrates in Durban had a function and they actually had it at the head office of the police in that particular point in time. I don't know perhaps it was a bit more lucrative to go there. Because they had all the facilities available there. And then I'm not sure whether there was a video or there was a lecture by security police but this came up in the Sunday Times. And I dealt with this specifically because those magistrates were then told you cannot handle any of these cases involving security matters. And that was, I think at the time it was Mr Coetzee, he was very furious about the whole situation. But that was an internal and local arrangement. That wasn't any directive from the state security council.
CHAIRPERSON: Can I just follow up? You see when minister Vlok came before the commission one of the things that he said was that they were not really responsible for the kind of reports that filtered down from the meetings of the state security council and that this was usually handled at the level of bureaucrat. So they weren't actually responsible for the way in which certain words were used like "Eliminate" and "Wipe out." That sort of thing. And so it was I think that the insinuation was that the bureaucrats translated discussions into language which could possibly be interpreted in a variety of ways as of course it went down the ladder. And I would just like to canvas your opinion on that Mr Neidt.
MR NEIDT: Well it's very difficult for me to give an opinion on that but what I've read from the newspapers and what I've seen this whole question of what's it a telegram or something concerning elimination and that subsequently there was also an investigation in this regard. This was handled by the secretariat of the state security council. I wasn't a member of that. That was the security forces coming together and a chairperson - I don't know whether it was the commissioner of police or the director of national intelligence. I'm not quite sure. But these matters, that specific matter never came to the state security council when I was in it. It may have come there before that. But these matters were not dealt with there.
MR VALLY: I'm now on page 61. Just to confirm that posts at certain ranks were reserved exclusively for white people up to 1985, up to which level was this?
MR NEIDT: Well chairperson if I remember correctly I think it was definitely prosecutors' posts, magistrates' posts. I think there were some clerks already appointed. At page 63 you will find, no that's afterwards. I think the legal posts definitely (...indistinct)
MR VALLY: Right so from prosecutors upwards?
MR NEIDT: Ja.
MR VALLY: Up to 1985 by law only white people could hold those posts?
MR NEIDT: Ja as I explained to you that was a prescript from the public service commission and that was also dealt with in the Hoekstra commissions report. And as a result of that fact that the special courts, Bantu administration courts were abolished we took it up with the commission for administration and said there was a dire need also as a result of the Hoekstra report in view of the fact that we, there was a lack of prosecutors of colour.
I must say at that time we already had a number of coloured prosecutors. I remember we gave them bursaries in the Western Cape. Prior to that occasion when we could appoint them. I don't have the exact details but I have a faint recollection before that we could. But black people most definitely we couldn't appoint up to that time because I was involved in this after the Hoekstra report we managed to get this.
MR VALLY: Okay we've got a interesting submission from Mr Rasafarti, part of which you quote in your submission. And Mr Rasafarti in his submission, I assume you have a copy of his submission.
MR NEIDT: Yes I have seen it.
MR VALLY: You've seen that. Yes that was written by (...indistinct)
MR NEIDT: We're working together (...indistinct)
MR VALLY: I have met him. Whereas examples of gratuitous discrimination such as black accused had to stand, white accused were allowed to sit and issues of that kind. Mr Rasafarti very quickly if you could just give us a few minor examples or major examples,
MR RASAFARTI: A few examples?
MR VALLY: A few examples such gratuitous discrimination.
MR RASAFARTI: Madam Chair that (...indistinct) is in the period around 1969 to 1971 when I served in what was then the only department of justice in South Africa. And well it was made very clear, I must say that I assumed duty there in 1969 as a court interpreter. Mainly because I had a passion to be involved in legal practice. Which I had cherished when I was even in high school. But then it was made clear when by the magistrates under whom I served as a court interpreter when they realised I was studying law through correspondence and they asked me why do I study law? What do I want to do with it? I said I wanted to be a magistrate and it was really made very clear to me there is no place for a black magistrate in this country which was then a one South Africa. But I said alright I will see what to do.
And then there were, in fact I must say that I had also asked the law society of the Transvaal. I wrote to it and asking for assistance because I had no means of going to any university. And they recommended that I apply for a job at the magistrates office in Pietersburg and I got that one. So the period I'm deposing to is from 1969 until 1971 when I was in the department of justice. And then when I became partially qualified in law I was then transferred to the department which was then co-operation and development or Bantu administration. I'm not sure at that stage what it was called like. Mr Neidt had said here it changed names so often.
MR VALLY: Thanks I just have to move on. I'm under pressure here. Advocate Neidt are you aware of any times when the minister instructed or directed or requested or hinted at even any decision which was imminent from an attorney general which as a result the attorney general changed his mind? As was legally allowable?
MR NEIDT: Chairperson no I'm not aware of that. I know there were various discussions between the minister and the attorneys general. The attorney general often were called to the minister's office and they had discussions on various matters but I don't know of specific instructions. I thin if there were such instructions it would have been instruction from the minister to the attorney general concerned making a call or calling him in. But I was never present when he gave any such instructions. Except for the matters that was mentioned here this morning. The pass laws and those matters. I know there was a general discussion around that but I'm not aware of any specific instructions during my period of time.
I must say that Mr Kobie Coetzee was very, very careful in dealing with the attorney generals. He was, although he had the power in terms of the act he always said he'll never interfere with the decisions of attorney general. Now that he said openly on various occasions where I was present. He was very sensitive about this matter. I must also say as far as the security legislation is concerned you'll see from the submission. I think when he took security legislation over later on there was a drastic cutting down on quite a number of matters. And he was also responsible for placing the moratorium on the death penalty and various other matters. He had a great sensitivity as far as these matters are concerned. That is how I experienced it.
MR VALLY: Finally for my part. You talk about the Hoekstra commissions - page 80, the Hoekstra commission's recommendations there, you've mentioned it before. Am I to understand from what you say firstly the bar council has told us that between '53 and '68 the magistrates were instructed not to criticise the police at all in their judgements.
From 1968 onwards there was the code which talked about fair and reasonable criticism and you referred to this on page 60 in paragraph C. Where misconduct for example included public commenting to the prejudice of the administration of any department. If the magistrate had to be found to be inefficient or guilty of misconduct his salary or grade could be reduced or he could be discharged from public service. Page 80 C. And you say that you think these recommendations, the Hoekstra commission were put into place somewhere in 1984?
MR NEIDT: No it was between 1979 and 1984 because that was one of the first matters brought up to the attention of the Hoekstra commission and I remember all newspapers were reporting this. And the then director general of justice was Mr Coetzee and I went immediately to him and discussed it with him and obviously I personally wasn't aware of this particular instruction. And I think within a week or two that was withdrawn and ultimately the whole code was withdrawn.
MR VALLY: Right so up to this point magistrates on pain of being charged for misconduct could not criticise the police or any other department even though the evidence in that case may show them to be culpable of whatever?
MR NEIDT: Chairperson I must, I think we probably have a copy of that code. But if I remember it correctly what was stated in that code. There was no mention was made of misconduct. There may have been another circular but the code that I remember merely stated that magistrates shouldn't criticise police in open court. They should rather direct their criticism afterwards to the minister of police or the commissioner of police, whoever it was. I can't remember any mention of being made that they were guilty of misconduct. I'm certainly not aware of any magistrate being charged in this regard. But I must say it's before the time I was in charge of misconduct matters.
MR VALLY: I know that you were some official of the Hoekstra commission.
MR NEIDT: I was the chief researcher.
MR VALLY: And I note that in your submission you put the issue of misconduct and the definition of misconduct immediately underneath that point so I assume there was a reason for that?
MR NEIDT: Ja I would just like to check on that and I'll come back to you because I think that specific instruction is still somewhere to give you the correct information. I'm speaking now some time ago but that's my recollection of it.
MR VALLY: Thank you advocate Neidt I'm through.
MR LAX: Thank you advocate just briefly -deaths in detention and the statistics were given yesterday or today about fairly large number of deaths in detention between 1960 and 1990. It was something like 87 deaths in detention. Now many of these perhaps most of them would have taken place on property under the jurisdiction of your department, some of them would have been in police cells but many of them would have been in prisons. Now aside from judicial inquests and that sort of thing did the department take any other steps to investigate these deaths in detention? And there was any departmental investigation instituted? Were police ever asked as to how this had come to happen, the prison wardens or whoever was in charge of these people?
MR NEIDT: Chairperson if I remember it correctly the initiative usually came from the police specifically when somebody died in detention and they requested a minister of justice to appoint a magistrate to hold an inquest in public. The request usually came from them and this was usually a discussion between the two ministers and then the minister decide on an official to be appointed or requested to hold this. And this was usually in one of the officials in the particular jurisdiction of where this happened and then the inquest continued.
MR LAX: So there was no separate inquiry internal nothing like that?
MR NEIDT: No not that I'm aware of.
MR LAX: And you wouldn't have a list then of the number of people and the names of people who died in custody?
MR NEIDT: We do have records of some of the inquests. That I know. Some of them at one stage. I'll ask Mr du Bruin just to look and we have records of some of the inquests but not all of them. But we do have records of some of them.
MR DU BRUIN: I don't have a complete record of all the deaths in detention but we'll be able to get that from the police. And from that we can see what happened afterwards. Because usually the attorney general or the senior public prosecutor of the centre concerned was involved in the investigation because that was the instance that initiated the inquest. So if we can have a list of all the names we can check whether we have files on all of them.
MR LAX: Okay that's fine thank you. And just finally, the attorney generals this afternoon expressed, some of them sad they felt a great sense of unease and concern about the number of deaths in detention. Did they ever take this up with the department of justice, do you recall at any point when the attorney generals called or requested a meeting with the department as their employer to talk about things like this that concerned them? Deaths in detention?
MR NEIDT: Chairperson I don't know of any such instance. It may have happened with my predecessor. They may have had discussions with the minister of justice but I'm not aware of any such discussions.
PANEL: Chairperson with your permission may I also.....
CHAIRPERSON: Go ahead.
PANEL: Give a perspective of what happened in the area that was (...indistinct) with regard to deaths in detention. I recall the prominent cases of Peter Nchagaleni(?) in Sekekuneland, Magora Malepe in Golovedu and Magompo Kutumela in the Mogero district. I'd say that in all those cases the magistrates who presided over the inquests found that the police were probably responsible for causing the deaths of those people in detention but then it is not clear what happened thereafter. But I must also say that the only record of Magora Malepe I could find, the one of Peter Nchagaleni I could not find and the one of Magompo Kutumela according to information is destroyed when that office was set alight during the turbulent years of the struggle. Thank you.
CHAIRPERSON: Thank you.
MR DU BRUIN: Madam Chair?
CHAIRPERSON: Yes.
MR DU BRUIN: May I just refer you to page 30. You requested the figure for the section 6 detainees. It is contained top of page 30. The figure is 4140. We gather it from Hansen. It was a question in parliament.
MR VALLY: Thank you very much.
CHAIRPERSON: Thank you. Mr Lax I think wants to ask one more question.
MR LAX: Thank you chairperson. When we spoke to people like Mr Vlok they said that when they used words like "eliminate" and so on those were instructions to people about detentions and other methods. They never ever understood that to mean kill - ban, restrict, detain. Did you ever get an instruction from the state security council where the intention was to restrict someone or to detain them or to ban them that used the word "eliminate"?
MR NEIDT: No chairperson. There was one instance and that was in the case of the Mkondo and others. There was I wouldn't say it was an order or a request or a direction by the state security council that these people should be detained in terms of section 28. But then it was a straight recommendation or request "detain in terms of section 28."
MR LAX: You see on our reading of the minutes of the state security council it's patently obvious to us that where they wanted an action like detain they used the word detained. Where they wanted something else to happen they used words like "eliminate." And it was surprising that in most of those cases those people were eliminated. So I just am not surprised.
MR NEIDT: I've never seen the reports or memoranda to their people on grassroots level but after the Goniwe inquest was reopened I looked into their files and I saw that word and that was contained that people should be "elimineer, uit die gemeenskaps verwyder word." I can't recall the exact words. But that was actually contained in the report. Chairperson I think I may just add here that as far as the department of justice is concerned we received certain requests as far as state of emergency and the matter Mr du Bruin referred to but these things were dealt with secretly. I must say I was very surprised after all the years I was in the department of justice when I learned of a place like Vlakplaas. And I'm quite honest. I never knew of the existence of this place. I never knew that the police met there. I discussed it with some of my colleagues. I've never heard the word.
The police were doing their certain things they had secret funds, we never had secret funds. At one stage I became aware, I think it was 1992, that there was talk of that the police wanted to set up a secret fund for the department of justice. And I immediately went to Mr Coetzee and I said to him but this is totally unacceptable. My budget has been open to parliament for scrutiny over the years and if the police set up a secret fund for the department of justice I want to know what it's about. And then I was given to understand I think that was concerning the Upington 15 or 16 people who were charged there and there was a lot of complaints in the newspapers and they were feeling that or somebody was feeling that the department of justice was handling the liaison of this properly and for that reason they wanted to set up a secret fund. I stopped it immediately. I said I'm not involved in this. If we say anything we're going to say it in open and Mr Coetzee was furious. He took it up with the minister of police and it was stopped immediately. A lot of things happened. I know it's no excuse but I may just add it was an eye-opener I couldn't believe what I read.
CHAIRPERSON: Potgieter?
MR POTGIETER:: Thank you chair lady. Advocate Neidt just one issue. Were there to your knowledge during the emergency years any attempts in litigation involving the justice to neutralise the effect of progressive judgements - let's call it that way? Notably in KwaZulu Natal (...indistinct) judges to neutralise that by engineering matters to be heard by more conservative benches to give conflicting decisions to neutralise those decisions which were not in the interest of the department or the ministry of justice as it was seen at that stage.
MR NEIDT: Chairperson the only facts that I'm aware of in this particular instance is during once against during the Hoekstra report there were definitely complaints I think from lawyers and also from other people and there were suggestions that certain judges were selected to do certain specific cases. And the Hoekstra commission also reported on this. The judges who were to preside over cases were the prerogative of the relevant judge president. He decided on that. I must say since that time and we also looking for answers I've had an opportunity to look somewhere else because this is also worrying me that if something like that did happen I think there's a solution and I found it in Germany. That a case is set down for a specific court but not for a specific judge. And you never which judges is going to preside in that specific court. If you have ten courts then there will be a court role with case number one is in that, that. And only the judge president and two other people know which judge is going to preside over that particular case. And I think that's perhaps something that we should look into in South Africa. To get away from that criticism that a particular judge is selected for a specific case. I think it will do a lot of good to the justice system and legitimise it in the eyes of the public. Because I've heard in national security cases that even some attorneys and advocates say they're going to ask for a remand tomorrow because they don't want that judge to hear their case. And I think that's totally wrong, they shouldn't know which judge is going to try their case. And but I'm not aware of anything in this regard.
CHAIRPERSON: Thank you Mr Neidt. Mr Neidt we will probably be calling upon you as we have already done I think with Mr du Bruin in terms of those files. We have had our researchers and investigators going to have a look at those files. But I think we grateful for the way in which you've organised this presentation so that we can have an easy reference to the questions that we need to have answered. We certainly going to be using your statistics to check that against the numbers of cases that we have on our own data base in terms of both the detention matters and the other statistics that you provide. So we will be calling on you again I think this isn't really the end and I have heard Mr du Bruin say that all the documentation in terms of the magistrates, the letters, the visits those kind of reports still exist in those files. And I think that's quite important because we would want to have a look at that and the review files as well. We grateful to your team. Mr Rasafarti as well for coming along and making his submission and thank you very much. I'm sorry that we've kept you so late though.
MR NEIDT: Chairperson I thank you very much. I'm just glad we got an opportunity today because there was obviously a lot of work involved. I think it was, as far as I'm concerned an honour for us to appear here and put our position as honestly as we could. But I want to thank the two gentlemen here and other officials who were involved in compiling this report. I can tell you they worked virtually through the night because to collect these statistics you often had to work through thousands and thousands of files.
The last thing that I just want to say and the Minister has already given me instruction. We are inundated with queries from various people to have a look at these files. And I'm rather worried. You know what happened to the case record of honourable president, certain volumes disappeared from the registrars office and we don't want this to happen. And the minister has given instructions but I can tell you Mr du Bruin has his hands full to keep people out of these files because we can't sit with every person who comes in there. And perhaps we can get some assistance from you we would be glad if the files could betaken away and locked up somewhere else and kept safely there than.
CHAIRPERSON: Ja. I think it is quite important about where they actually going to held in future and perhaps some thought needs to be given to that. Thank you for coming. Could we call our last witnesses for the day; the Centre for the Study of Violence and Lawyers for Human Rights please?
Could we ask people to take their seats again please. Graham and Vinard before you actually sit can I ask you to stand so that Richard can ask you to take the oath or the affirmation please?
COMMISSIONER: Can you just briefly give us your full names?
MR SIMPSON: Graham Simpson.
MR JAYCHAN: Vinard Jaychan.
CHAIRPERSON: I think I must apologise to both of you for having kept you waiting. I don't think that we anticipated that our witnesses would take so much time but before you start your presentation may I just explain that two of the people are in fact going to leave because they have a flight to catch. So if they leave at quarter to seven please don't be offended if we are still here though to hear your submissions.
MR SIMPSON: We will have finished by then.
CHAIRPERSON: Thank you, you can proceed. Do you have a written submission to?
MR SIMPSON: Ja I want to talk to it in my opening statement if you don't mind?
CHAIRPERSON: Alright.
MR SIMPSON: Our concern is that we have a draft report. We've only recently been integrating reports of both our organisations into it and so we wanted to refine some of the recommendations which is why you haven't received the final report thus far. With your permission we would like to submit it to you hereafter. We will not be addressing in any great detail the substance of the report now. We will leave it for you to read. If that's alright?
CHAIRPERSON: Okay thank you.
MR SIMPSON: As far as, if I may with your permission as far as leaving early is concerned we understand that only too well. I will be very brief because Vinard has to catch a plane as well. So please excuse him if he gets up?
If I may our concern here is really to raise just a few particular issues. Our draft submission as I've mentioned will be submitted. Our submission will be made in writing. It's based on extensive research over a two year period particularly in the processing of the IDAF archive - International Defence and (...indistinct) archives. As well as through consultation with a full spectrum of legal and human rights non-governmental organisations and interviews with a fairly wide range of legal practitioners. It canvases a number of the issues which I believe have been considered by the commission over the last few days. Including some of the juris prudential arguments judicial activism versus positivism, a critical look at some of the issues around the failure in our opinion to exercise effective judicial discretion. Especially in respect of inquests and cases involving torture and confessions based on torture. Failure to reply, refer to or comply with international human rights norms and standards and a range of issues around racially biased sentencing approaches, etc. None of these will be covered here.
In fact whilst I do have something of a legal background and qualification I and I think we will deliberately not be speaking from that perspective on this matter. At least in part it's because of a belief that there is a somewhat constraining influence of the formal truth required by law when compared to the simple social truth which engages much more thoroughly with complex, comprehensive social realities and perceptions for ordinary people. Particularly victims of violence and human rights abuse.
Indeed it is very often the issues of formal truth both at an organisational level and in terms of what the courts chose to seek by way of answers that sometimes masks what we believe is either subtle explicit or implicit culpability. Culpability which is not so much based on individual guilt and our concerns are not to focus on the individual responsibility of particular judges or magistrates. But rather which raise very critical questions for us. In terms of how we guarantee that these problems do not re-emerge in our society. And our focus therefore is essentially, here is a concern to implore the commission in dealing with this matter to - as I'm sure it will, be forward looking rather than simply backward looking in dealing with these issues.
We try and represent civil society in our scrutiny of judicial institutions and our basis is in many respects explicitly moral rather than legal.
In making the argument that judicial officers were simply bound by laws passed by parliament even if they were immoral we play a key role I believe in sustaining a distinction between law and morality. Which is critical to shaping the fundamental challenges which we face ahead of us in transforming public perceptions of law and of the courts. It is precisely this distinction between law and morality which lies at the roots of laws which could dehumanise and still be implemented and which criminalised ordinary political behaviour.
The consequence is quite simple. It is law itself in the society which has lost respect. It has become moral or noble, for good reason in the past to be on the wrong side of the law. And the key issue here is that we need to recognise that the flipside of the historic criminalisation of politics by our law and our legal institutions is manifesting itself very much today in the other side of that coin which is the politicisation of crime. These are in our opinion the roots of a culture of impunity in our society today.
We must add to this a recognition of the active role rather than simply problems of omission. Active issues of commission. Whereby legal officers, judges, magistrates, drafters of legislation actually assisted in drafting such Draconian measures actively sustained states of emergency and the abuses of torture in detention which went with them. Here we talking about a culture of impunity not just on the part of a population which has lost respect for law and with the legacy of which we live with today but, also the police and agencies of the Apartheid state. We don't have to look much beyond the sustained incidents of torture in detention, deaths in police custody today in ordinary criminal matters to recognise the extent to which this has intruded and remains a characteristic of our institutions of criminal justice.
I would believe we need to add to this an understanding of the way in which we have witnessed the bastardisation and manipulation of customary law in our society. Primarily in the period before that considered by the commission but not exclusively and for political ends. In that it contributed critically to denying the majority of South Africans in a sense a legal place of belonging in our society. All of these features have contributed fundamentally to driving people into very noble causes outside of the realm of justice.
The consequence as I've mentioned is a culture of impunity, a loss of respect for the law itself. Which ultimately unless redressed, I believe, we believe lies at the root not only of current problems around criminal violence but future problems as well. In respect of both future political and criminal violence.
The danger needs also to be considered. That the T.R.C. may be a vehicle complicit in this culture of impunity through it's administration of an amnesty. For that reason because of that danger it's our view that it is vital for the commission as you are doing to rigorously scrutinise judicial institutions. Building reconciliation at this level is necessarily as I've mentioned a forward rather than a backward looking process. The ultimate objective must be to transform judicial institutions and the entrenched culture of these institutions. To rebuild popular confidence in the law itself and popular perceptions that the law and morality are compatible rather than incompatible with each other. This is absolutely not necessarily about judges and magistrates and their capability at an individual level but about the implications for the state of law itself in our society. And our judicial institutions in a future South Africa.
The hallmark of democracy is a culture of justification. We cannot expect this of disillusioned and frustrated victims of human rights abuse if we cannot ask it directly of our judges and magistrates themselves. Whether we consider them guilty, culpable or not as individuals they need to speak themselves. They need to be heard by the people of South Africa themselves and in so doing and I believe they need to do it here, they need to break a tradition of distanced judging in our society. Which very often lies at the core of non-accountable justice which rapidly looses the confidence of the people which it affects.
It's only then that we can begin our process and it is essentially ours once you are no longer here we believe of building a human rights culture. Of rebuilding the rule of law and of establishing a legal and moral place of belonging for South Africans. The constitution is not enough. It is important. It is a critical vehicle for reconciliation in our society but institutional change is equally important. Our recommendations will hopefully focus on those things. On the forward looking vehicles including judicial training, the tools by which we can build a human rights culture, effective monitoring and institutional change. And I'll leave it to Vinard to touch on some of those recommendations. They will be dealt with more thoroughly in our full report.
CHAIRPERSON: Thank you.
MR JAYCHAN: Chairperson I intend to canvas two points essentially. The first being one that was identified yesterday by professor Bongani Monchola and he touched upon it but I would like to amplify the notion of the future role of NGO's.
The role of NGO's especially those with an established record of human rights monitoring, human rights education and delivery of human rights services to the indigent person must not be relegated in our emerging democracy. Now that we have a bill of rights and a constitution in place civil society must not be complacent and believe that we arrived in the Promised Land. The duty to translate these paper rights into real rights rests largely on NGO's. They are best equipped as demonstrated by their prior record in the Apartheid days to deal with these issues. They must maintain their vigilant attitude and where possible address and correct the iniquities that result.
The various state sponsored institutions - this is relating to human rights, now appear to ignore the role of human rights NGO's and prefer to aggregate the monitoring, education and delivery of human rights services to themselves exclusively. Rather than reinventing the wheel in this respect consultation with human rights NGO's would be more healthy for our emerging democracy. The degree of distance the administering institution have from the state will be more reassuring to civil society. Especially since the state pays their salaries. Rather the state sponsored institutions should seek out the NGO's with a view to entering into consultations with them on a range of common issues. Where possible they should tender out work to them or enter into joint ventures where the beneficiaries would be civil society.
Instead of being co-opted by the state sponsored institution the NGO's should never seed their right to be critical of government or governmental institutions. It is this right that creates consternation in government and governmental institutions. As a result there is an ambivalence in their treatment of non-governmental organisations. Governmental institutions are bureaucratic juggernauts that move with deliberate speed and cannot deliver a desired result as quickly as an NGO can. While they recognise this they're reluctant to enter into any arrangement with NGO's for fear of losing credit for the work done or any other similar fear. The net effect is that civil society looses out. This is an area of institutional change which the present government at this stage can claim little success.
I also want to hearken onto another particular matter which was raised yesterday and this is essentially a call for a special focus on the disparities that exist between historically black universities and historically white universities. I do so in my capacity as being a law teacher for some eleven years standing and a former dean of an historically black university.
The various submissions that have identified the areas of concern so far have stressed various aspects of the Apartheid legal system. But one area that has not been stressed is even in the presentation with regard to legal education yesterday, was the disparity between the historically black law schools and their white counterparts. The separate education ideology created at first caricatures of historically white law schools and staffed it with legal hacks, Afrikaner academics or retired government officials with obvious sympathies. I use the word caricature advisedly. They bore a vague resemblance but they never were a replica of the real thing. They have come a long way since.
Professors Hugh Corder and Dennis Davis in their critique "Law and Social practice in 1988" analysed the juris prudential morals and debates within the South African legal system. And not a single academic from an historically black law school is mentioned. Could we conclude that in 1988 they contributed nothing to these morals or debates? If the answer is yes it is a severe indictment on our legal education system.
The disparities that exist between historically black law schools and their white counterparts is very vast in basic resources such as books and qualified and effective teachers. The product of these law schools were and some are deprived of any education in human rights or constitution laws. The legal profession treatment of graduates from historically black universities has been shabby to say the least. They were regarded as second class lawyers from second class institutions. As a result articles of clerkship or other jobs were hard to come by.
If we do not intend addressing these disparities then we may be guilty of perpetuating the ills of the separate education system. There are however choices in the decisions we make. Since there are some more than 21 law schools attached to universities and this excludes a number of campuses which exceed that number, the question to ask is are all of them viable institutions that provide good legal education. Especially since their lot has not been altered with a change in government.
Perhaps an assessment of the effectiveness of these universities needs to be made and some HBU's could effectively amalgamate with historically white universities with a view to creating more effective institutions. If all these institutions are to be retained then apart from their lack of resources in other areas they may be a duty upon the state to set up at least a chair in human rights law at each such institution it retains.
An inadequately trained lawyer may in time become an adequate one but at the expense of the unsuspecting public. Keeping in mind the low confidence the general public has in the legal system and in lawyers is this not a necessary change that we should be focusing upon? Mr Vincent Sandana of NADEL warned yesterday of this when he alluded to the imbalance between the HBU's and the HWU's. While Professor McQoid may have seemed to refer to some of these difficulties encountered by the law faculties I believe that a proper study needs to be undertaken to redress these imbalances in these particular law faculties. I thank you for your patience.
CHAIRPERSON: Thank you Mr Jaychan. Questions Hanif? Here while you're catching your breath Wynand will?
MR MALAN:: You referred in your address to the state not sort of hogging for itself human rights work activities but to sort of farm it out and get and stimulate and keep civil society going, is there not a conundrum in such a statement? Then if civil society NGO's become dependent on the state are they really part of civil society still?
MR JAYCHAN:: NGO's should never sacrifice their independence. We are talking about a collaboration not a cooption. And that is the essential difference and I think NGO's know that difference. We will not sacrifice our right to be critical when we in fact undertake that exercise.
MR MALAN:: I'm really thinking of the past and where I come from. I'm not sure that, that is really possible. So that's my question. Are you confident that it is possible?
MR JAYCHAN:: I'm confident that with a properly democratic society it certainly is possible.
CHAIRPERSON: I think that perhaps I could just, government has of course been thinking exactly along those lines because unfortunately most of the donors that supported NGO's now enter directly into partnerships with government where perhaps in a certain instance the department of justice is responsible for making sure that those funds are dispersed. And recently with the act that they were proposing to pass in respect of this kind of situation where they know they can't deliver on the final product one has to look at that kind of collaboration. But I think the key question is the ownership of the results. And I think that's the contradiction that government doesn't want to sometimes give up the credit for the success of any particular action. And so perhaps that's where the difficulty really lies.
MR SIMPSON: If I can just make a comment on this you know I don't think this is a future scenario that we are considering. I think it's a current scenario. I think that certainly our relationship to the TRC itself is illustrative of the fact that one can collaborate and apply pressure at one and the same time. And I think that it's a potentially healthy if somewhat schizophrenic relationship. And the conundrum you identified is real. I think it's added to by the fact that we not just talking about policy here. We're talking about issues such as training, service delivery, public service delivery. A situation where in some respects non-governmental organisations continue particularly when it comes to victims to provide services which are not being delivered by the state. So that we are not only sometimes combative and critical of government, sometimes partners or subcontractors to government but we also sometimes serve as substitutors for government. And I do think it's about a complex relationship which we all have to learn to live with.
CHAIRPERSON: Hanif?
MR VALLY: My first question is if you put in your written submission give us your views of how this interaction with the judiciary should take place, practical ways of how civil society can interact with the judiciary id at all. And so that's not a question you can (...indistinct).
The second issue is one sees from international bodies like the UN which consists of states, member states and their watchdogs are in reality the NGO's, the states can't be trusted to protect human rights unfortunately. And having said that if in your written input you can also give us an idea as to what role the NGO's can play and what recommendations can we as a commission make to reinforce this role of NGO's in (...indistinct) civil society and the protection of human rights. So it's requests rather than questions. Thanks.
CHAIRPERSON: Graham here?
MR SIMPSON: If I may just respond to the one as if it's a question because it provides a wonderful opportunity. And that is in respect of the starting point with regard to the interface between civil society and judicial offices. Quite frankly I think this commission is that starting point. And really ought to be and I think that considerable lobbying, advocacy and perhaps even pressure should be applied to ensure that such people do speak, are audible. And that quite frankly this is not just about those who are regarded as having been complicit. It may as much be about those who are regarding as having been judicial activists. The experience in that environment needs to be rendered audible for civil society. And I really believe this is the place to start that process.
CHAIRPERSON: Graham I think you raised in your submission this question of formal truth and I think the simple truth really and some of our experiences in the commission is that often the truth is obscured by all the legal paraphernalia that goes with it. And I wonder if you've given some thought to how in a sense a commission that should not really have been so fraught with legal problems has in fact become, where the lawyers I think become in some instances a kind of war between getting to the real truth.
MR SIMPSON: Ja I mean it's a difficult and largely philosophical question. I mean the fact is that in an environment where there is no one truth only versions in which one is implicit in your mandate is to consider the experiences on all sides of the political spectrum as if there is no set of moral issues which shapes how one views that. And I'm not suggesting there is. I think from the perspective of victims the moral distinctions fall away entirely because of the experience of victimisation across race, class and political persuasion is fairly standard and the symptoms of trauma that are associated with it are as well.
I do think there's an inherent problem in the enterprise which is about walking the tightrope between the fact finding enterprise and one which is socially and psychologically sensitive and reconciliatory. And I'm afraid that's a tension which this commission was designed to live with. And I'm not sure that there is a way of dealing with that.
Perhaps the most illustrative thing for me is by reference to a court case in which I was one of several people giving evidence in extenuation. It was a matter which involved a fairly brutal killing in industrial context and the remarkable thing was that in, once there had been a conviction and they were looking for evidence in extenuation a psychologist walked into the court room and stood in the dock and argued that the behaviour of the accused was essentially irrational, uncharacteristic at an individual level. Thereafter a sociologist examined the exact same set of incidences and said from a perspective of understanding this particular dispute violence was an inevitable, rational and clear consequence of this. The court without ever having to consider the potential contradictions between those two found not one but two bases for extenuation. And I think that's the most powerful illustration of formal over and above social truth. And I think that, that's something that your commission has to deal with every day.
CHAIRPERSON: That was a good example thank you. Thank you very much for the submissions we look forward to receiving it in writing so that we can in fact deal properly with it. I'm sorry that we've kept you here so late this evening but thank you nonetheless.
Yes. May I just apologise firstly for the members of NADEL and the I think the Association of Law Societies, Mr Sithole, Mr Krish Govender from NADEL, Mr C.R. Palmer from the Human Rights Commission. They unfortunately are catching the last flight to Durban and have left already so I think if I can just start with Mr Moldenhauer over there.
Mr Moldenhauer can I place on record our appreciation for the fact that you had been in attendance for the last three days and you were asked to do that, two days, you were asked to do that at quite late notice. I also want to place on record that you did bring along the magistrates from Pretoria who had informed you that in fact the letter that we had sent had not in fact been passed onto them by the magistrates commission or in fact by the department of justice. We sorry for that. We have arranged with them that they will forward us their submissions in writing but I'd like to give you an opportunity just to give us your evaluation of the two days here.
MR MOLDENHAUER:: Thank you very much Mrs. Chair. Thank you that you put the record straight in that regard. The magistrates are willing to testify but it did not come to their notice. I was only invited to attend and also take part in the discussion. Otherwise I would also take the opportunity to testify. I will be very brief.
Regarding today there's only one problem that I really have with this whole scenario that was placed before the commission. And that is that we are in 1997 and since 1994 the law fraternity are dragging their feet and it seems to me that very little has been done since 1994. And the biggest problem that I have with that is a change of attitude. And as I ask on Monday evening the community and also the truth and reconciliation committee must please help so that we can speed up this process and start with a new South Africa also in the legal system. And the most important thing is the change of attitude. Thank you.
CHAIRPERSON: Thank you Mr Moldenhauer. The gentleman from the legal resource centre?
MR FRANCIS: Thank you Chair. The hearings or some of the submissions were somewhat disappointing in ...
Most of them had a military background. They were part of the system. The system was devised to entrench you know white power. And I think if one takes it from that angle I think one should not really be disappointed in their display today. But I think what was somewhat disappointing to me was that emphasis was placed basically on political prisoners and I think it came out from the submissions that 4 or 3 to 4 percent of the cases that were being dealt with by the AG was mainly in political matters.
But I think what didn't come out here was that there was a large number of black accused who was the victims of gross human rights violations. We, that didn't come out and I would you know give examples where one would have expected them to have spoken about the different bail you know. Or how bail was applied in practice. You find that say if a white person was accused of shoplifting and a black person was accused of the same offence. In most cases you'd find that the black accused would be required to pay bail in an amount of about R300 and the white person would be granted free bail. And in most cases I think you would find that the attorney general, the prosecutors would ask for much more larger you know bails for black accused.
I think the same also applied in matters of rape. Where if the victim and the accused were both black the matters would then be transferred to the regional courts. Where I think we know, Ja to the regional courts. But if the victim was white those cases will be referred to the high courts and in most cases I think we all know that the death penalty would then be imposed.
So I think to say that the attorney generals didn't play a role I think was just a, I think they weren't candid with the commission. And I think it was also alluded to that if in matters where there was police brutalities those cases would be referred to the AG.'s office. And I think we had an experience or we dealt with a lot of civil claims against the police and most of those cases got settled but there were no criminal prosecutions. And if there were criminal prosecutions I think the prosecutions were pathetic. Because in most cases the police officers would be found not guilty.
So I think it was disappointing in that sense that too much emphasis was on the high profile matters and I think people forgot that the bulk of the people I think who really faced the system were not even people I think who were involved politically. And I think that was the disappointment that I had. But I think the other black members I think who testified about the systems I think supported what we basically knew that it was an unjust system. The attorneys generals played a crucial role in the upholdment of the whole system.
CHAIRPERSON: Thank you Mr Francis. Suinaib?
?: Thanks Madam Chair. You've had a gruelling day and I'm not going to test your patience by going through 4 pages of summing up notes. But just to highlight a few issues. Firstly may I again with respect stress the context in paradigm that we mentioned yesterday. We think that unless the submissions are viewed within that context and paradigm it is not going to get the commission very far because what you have are basically allegations that we acted within the law. And there might have been difficulties but that was the law which completely ignores the fact that, that was an unjust law. And part of what you're investigating is whether or not there should have been opposition to that unjust law.
To argue that we acted within the law takes us nowhere and unfortunately that characterised today's submissions as well. And from that perspective they actually raised more questions than answers.
What was particularly disturbing was the reference this morning to words such as "anti-justice propaganda, revolutionary onslaught, communist onslaught." And the suggestion that the credibility of the justice system and the attorneys general was lost because of that onslaught. It was, the onslaught was there so as to deal with the injustices which that system exhibited and perpetrated. But what the reference to those words denote is a clear assimilation of the language of the Apartheid government. And from that point of view for the attorneys general to suggest that they were acting independently rings extremely hollow.
Perhaps the most telling is the reference to for example Rommel not being a Nazi and the proud reference to teaching manuals such as defeating the communist insurgency. I mean that sort of reference was made here today before the TRC October 1997 without a blink of an eyelid, without any remorse whatsoever. And that I think falls to be condemned most strongly. If at this stage characterisations of the liberation struggle are still on the basis that was a communist onslaught we have a very, very long way to go. And for it to be said unblinkingly without remorse makes the position extremely bad.
In so far as I'm concerned I regard an apology of actions to be sincere and maybe I'm imposing a certain subjective level, subjective standard. But I only regard an apology to be sincere if it deals with the actual violations in respect of which the apology is made. If I have committed a range of violations over period of time and then meet the victims and say: "I'm very sorry for what I've done. I must tell you I acted within the law and so be it but I was very independent." That I'm afraid is crass arrogance of what is required to be stated here and what is required to be dealt with by your commission. And from that point that characterised, that attitude characterised the submissions of the attorneys general today.
And there was level, an element of contrition and regret but I'm afraid not sufficient from my point of view not sufficiently candid. I think that if there was to be an expectation of an acceptance of apology then what was required was some sort of listing even by category of the nature of offences that these people have been involved in. They were the hitmen of Apartheid and it begins and ends there. And to try and wriggle out of that by as I mentioned yesterday, using technical legal (...indistinct) it just is not on. Not at this stage of our history.
The experience of Messrs Hendrikse, Skosana and Naka really flies directly in the face of the evidence of submissions we've heard from the attorney's general. One would swear that all of the submissions you heard like theirs, like I was dealing with the attorneys general we were living in a totally different state. These weren't the attorneys general we were talking about. If you look at page 34 of our submission they list complaints against the attorneys general. Mr Lee Bozalek and they just not consonant with what you heard today. And from that point of view we're also extremely disappointed.
We think particularly in so far as officials who came from the old order and who continue to serve the new order, from their point of view we would have expected because we thought they would want to impress upon the new system, new democracy, the new people that they were here to serve the requirements of a constitutional state and the demands of a constitutional state. That they would be more forthright about their activities. Regrettably that was not forthcoming.
In so far as the magistrates are concerned we pleased to hear that there might well be some who are prepared to make submissions but again from the evidence of Messrs Hendrikse, Skosana, Naka it's clear and from the evidence of - I forgot to mention earlier the security policeman. I've forgotten his name. That there's a very different picture that emerges in so far as the involvement of the attorneys general and the entire prosecutorial system and the magistracy is concerned. In so far as human rights violations are concerned.
The department of justice. I had occasion to read their submission yesterday and as I went through it I actually wondered whether it was not simply a condensed exposition of the course that the law chartered. This act, this happened, that act, that happened. By the time I came to the acknowledgement page which expressed the apology I'm afraid I wasn't relieved. Again from their point of view having been at the coal face I think what one would have expected is for them to have listed those violations in which they were involved directly or indirectly. To have said that to give you, your commission a better a picture this is the way the department of justice operated within the context of other structures administering injustice in this country. Not simply, and it's a useful review but that takes up virtually the entire submission is merely repeating the legislation of the time. I think we could have done that by going through the statute books. Yes the statistics are very useful to yourselves. Again I think they'll need to be followed up I think. One needs to go beyond those statistics but one is grateful that they have apologised. It was just a pity that I don't think that the actual role and a (...indistinct) by (...indistinct) account of that role hasn't emerged before this commission.
So it seems to me having been here for three days that these deliberations has merely sat a platform for yourselves from which you would have to progress further and actually look beyond these submissions and into them. Because ultimately the idea is not as I mentioned yesterday, for lawyers to know what was happening but for us to explain to the community out there, who have no respect, had no respect for these institutions. Why they failed the community, where they went wrong? And again to say to that community out there: "We received an apology and you need to access the level of contrition the level of apology and the extent of regret," to be able to recommend to the community out there that we ought to embrace all of these people within the new constitutional democracy. And to accept their commitment. And that's the task, the difficulty that you have. With respect I can't see that being too easy with the nature of submissions that have been made thus far. But thank you for the opportunity given to us to participate.
CHAIRPERSON: Thank you. If you do have your lengthier submissions in writing that will be useful for us as well. Before we close this hearing I'd like to thank all the people who've made this hearing possible. Our team over there; Melanie, Anay, Jakob and Tracy. Leila, Hanif I'd like to thank the sound people for being so patient with the long hours. They've often said to us we, that's an abuse of their human right. The camera people and of course the SABC and their crew. Gail's team as well. Thank you for being here with us today and thank you of course to my fellow commissioners. We've reached a certain stage I think that there's a lot of work still to be done. This is really a basis in terms of which one can start preparing a report but there are lots of unanswered questions. Not the least around the question of the judges and of course the question of the magistrates. But these are issues which the commission will need to look into further. Thank you the proceedings of this hearing are now closed.
HEARING ADJOURNS
