Special Hearings — Legal Hearings — 1997-10-27

YASMINE 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.

YASMINE 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.

YASMINE SOOKA: : Thank you.

MR VALLY: I hope that the Bar Council does get the message.

YASMINE SOOKA: : Thank you. Zaned?