Special Hearings — Legal Hearings — 1997-10-27

ASHFORD 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.

YASMINE SOOKA: Thank you. Mr Klemperer?