Special Hearings — Legal Hearings — 1997-10-27

UNKNOWN: Madam Chair, I think it's important to understand it and now is a general overview. There is no question that in the recent years and in the seventies and the eighties, as the record will show, we were aware of what these violations were. What we're attempting to say here is that we couldn't do enough. It was tentative and it was wrong. We tried, we went so far and not far enough. But if - we knew what was going on if that's that question, there's no doubt about that.

YASMINE SOOKA: Thank you.

MR VALLY: Can I just follow that up, Chairperson. That is something that I can't understand. You do raise the question in the summary that Mr Trikamjee had read out, but why did this happen? You raised it, you asked the question, you're critical about yourself, you conceive that what you did fell short of what you should have done in the circumstances, but why? And that's in that context.
 Can I elicit your comment on the view that has been expressed flowing from the fact that he stated in the summary that the overwhelming majority of attorneys in private practice were white males, as you set it out in paragraph three of the summary. The suggestion that what really happened was that these people were beneficiaries of the system and that is why they were only prepared to go up to a point in questioning the system. Have you got any comments on that?

UNKNOWN: You're exactly correct. That is exactly what we're trying to say. These were people who were products of the society. The society was mirrored in the Law Societies and in the ALS and the very notion that people were in private practice were white males, reflected what was regarded as their self-interest and resulted in a failure to uphold freedom and justice and democracy. There's no question about it.
 But at the same time, and I'm not trying to improve what the position was, there was an awareness of what was wrong and that record is before you in very great detail. 
What we're saying is, we knew what was wrong. We spoke out on occasions, on many occasions. In some instances quite forcefully, but it wasn't enough. We know it wasn't enough and that's what we acknowledge and apologise for today.

YASMINE SOOKA: Thank you.

MR VALLY: There's this issue of, which you cite on page 18, paragraph nine of your submission - there's an ambiguity about your positions which worries me and this is why I need clarity. You say
"Nevertheless on a number of occasions that Parliament passed laws that were clearly unjust, the organised profession stood up and spoke out. This will be demonstrated below.
 On the other, as has already been stated, there was such occasions when the profession remained passive and there was one occasion, the case of Law Society of Transvaal v Mandela, when the profession learned that its members were not inevitably bound to follow slavishly the laws of Parliament and that breach of a law not involving anything dishonourable did not necessarily mean disloyalty to or violation of allegiance to which every attorney swears solemnly affirms etc".
 This is the case where the Law Society brought an application to get Mr Mandela's membership of the Law Society turned down. I'm trying to understand what's this lesson you learned?
"The profession learned its members were not inevitably bound to follow slavishly laws of Parliament."
 Here you took the initiative to get him debarred and the court overrule you what lesson did you learn from that action and what can you tell us about that now, because you don't say much about it in your - well, you say a lot about it, but you don't say much about the lessons that you've learned. I'll read you the last paragraph.
"In disobeying a law that he believed to be unjust, Mr Mandela in yielding to the moral imperative, may well have demonstrated one of the very rare instances in which a moral imperative is truly just and justifiable."
 Now, one of the questions we've asked you is the connection between justice and the law. Here you say and justify your actions at the time of trying to get Mr Mandela debarred and your application was rejected by the court and you call it "one of the very rare instances in which the moral imperative is truly just and justifiable".
 What's your understanding of the concept "justice as it pertains to law", which is one of the questions we've posed to you in the list of questions we sent you?

UNKNOWN: Just to answer the question about what lesson we learned, the lesson of course is that the judgement that followed on the application and I think that one must see the matter in perspective, the matter was heard in the early 1950's and the application was refused by the court and the Society who brought the application learned a lesson that the lesson of the moral imperative that you've quoted so correctly and that's the lesson that we learned at that time, the lesson that the Transvaal Law Society learned in trying to disbar and strike Mr Mandela off.

ASHFORD TRIKAMJEE: Can I just add to that, Mr Nel has given me some information, I think after that application the Transvaal Law Society did not make any application thereafter to strike off an attorney for that type of an offence. I think the other Law Societies might have and I think Natal would probably be one of them, but certainly from what Mr Nel tells me, the Transvaal Law Society thereafter didn't pursue applications of that nature.

MR VALLY: Did the Transvaal Law Society not oppose any admissions by any persons who may have been convicted on political grounds. I'm talking about the Transvaal Law Society. You say Natal may have done so.

ASHFORD TRIKAMJEE: You'll have to forgive me. I'll have to ask again.

YASMINE SOOKA: Mr Trikamjee one of your colleagues would like to join you in ... (intervention).

ASHFORD TRIKAMJEE: (indistinct - not spoken in microphone)

CHAIRPERSON: Alright.

ASHFORD TRIKAMJEE: Can I ask Mr Langenhoven then to take the oath and answer the Transvaal Law Society?

YASMINE SOOKA: Yes. Mr Langenhoven, do you want to take the oath or the affirmation?

MR LANGENHOVEN: The oath.

YASMINE SOOKA: The oath.

MR LANGENHOVEN: (Duly sworn in, states).

YASMINE SOOKA: Thank you. You may be seated.

MR VALLY: Madam Chair, maybe I should repeat the question, but also we know that even after the case where the Transvaal Law Society failed regarding Mr Mandela, the Natal Law Society continued to do that. We're now going to find out if the Transvaal Law Society have done anything of the sort.
 I think I want to shorten the question, because where I'm heading to is we've been told that even up to now, and this has to be confirmed, that the Cape of Good Hope Law Society has refused to register the Articles of someone who was charged in the Upington 26 case and this is what I want to get clarity on.  Have lessons been learned and have attitudes change?