Special Hearings — Legal Hearings — 1997-10-27

YASMINE 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.

UNKNOWN: 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.

UNKNOWN: 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.

UNKNOWN: 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.

UNKNOWN: 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.

UNKNOWN: 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.

UNKNOWN: 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.

UNKNOWN: 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?