Special Hearings — Legal Hearings — 1997-10-27

UNKNOWN: 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?