Special Hearings — Legal Hearings — 1997-10-27

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?