Special Hearings — Legal Hearings — 1997-10-27

MR WALLACE: Surprisingly that's me Madam Chair. One of the questions which has been addressed today and on which I want to comment is the question of how does this Commission engage with the judiciary bearing in mind that the judiciary lead in this sense by the present Chief Justice and presumably the President of the Constitutional Court neither of whom are here has come to the conclusion that they should not attend and make oral submissions as opposed to the written contributions they've made. And there have been a number of statements in that regard about the desire to have them here and they must not place themselves above the law.
 But we had a very timely reminder from the Minister of Justice in his contribution that we do now live in a society where constitutionally the notion of the separation of powers has been entrenched and that separation of powers would ordinarily certainly preclude the government or Parliament or anybody else establishing a commission to enquire into the way judges comport themselves except where it is specifically alleged that there is misconduct against them. I think the Commission must bear in mind that there is a serious problem that you are yourselves operating within that constitutional framework and there is a problem of where within the doctrine of the separation of powers, which is so important, if in fact the judiciary are to play the independent role which they have been criticised for not playing in the past, where in that context would lie a power in this Commission to demand that judges, and I'm talking here about sitting judges, to come and account to somebody else. And might I simply suggest that you do need to reflect on that. I don't suggest that it applies particularly to questions of administration of the courts or to those who are no longer judges, and one of the central issues does relate to somebody who is no longer a judge and the composition of courts which is an administrative matter. And we certainly don't suggest that the ordinary powers of the Commission are not available in that regard. But just sitting here reflecting on it today if we may counsel that there may be problems of that nature and that you should be considering if you believe that there is conduct by a sitting judge which is misconduct which unfits or detrimentally affects that person's suitability to continue to sit as a judge, you should consider whether your proper approach is not to refer those matters to the Judicial Service Commission, which has the responsibility of investigating those matters. 
 Having said that can I mention in the context of the separation of powers the importance of the independence of the judiciary. It is a matter which we have addressed in our three volume submission. But I was a little concerned about a matter, and I'm sure Mr Vally will forgive me if I'm merely being a typical lawyer and somewhat semantic, but I was rather concerned about the proposition in that context put to our colleagues from NADEL, that you have nominated these people; you have influence over judges and you should be using that influence amongst those you have nominated to persuade them that they should change their stance. And may I say on behalf of the General Council of the bar firstly that I would trust that NADEL would not use it's influence, I'm not sure what Dali undertook to do but, I hope he'll reconsider it. 
 And secondly that if in fact they did seek to use their influence that, that would be repulsed. Because it is contrary to any concept of independence of judges that merely because initially they were nominated for consideration by a particular body, that they should be thought in any way to owe some kind of allegiance or obligation to that body. And if indeed that is so then I would say to this Commission we are back in precisely the trap which has been documented in the papers. Where we have looked at the past and said that people were appointed because of their political predispositions, because of their support for the Nationalist Party and our own submission say quite frankly and freely that did undoubtedly happen. And our task should be to ensure that it does not ever happen again - that someone goes onto the bench with some commitment or tie of loyalty to some outside organisation as opposed to the doing of justice under the constitution. 
 Can I simply add two other comments. The one is to take care that merely because one doesn't like a number of judgements that emanate from a particular judge, to condemn the judge. And I'm not sure whether Professor Dyzenhaus's contribution with the rhetoric which academe entitles him to employ, goes so far as to suggest actual dishonesty on the part of the judges. That it is interesting to note that the judges have said we acted in terms of a particular judicial philosophy and the philosophy did not serve us well. I think all are agreed on that. But one must be very careful before you condemn people on the basis of a philosophy which is used and is used world-wide. 
 And perhaps one should note that only this past week in a court from which we do derive much guidance and did derive much guidance, the House of Lords a member of Europe the community with the charter which they are not yet a party to but, they're going to join non-the-less was able to find that people who are held in detention in Northern Ireland do not have a right of access to a solicitor. So the philosophy may not be one that helps human rights but it is one which has a role to play in many judicial systems.
 Can I say one last thing about the death penalty. Or perhaps two things. One to correct an impression which some newspapers have had that the comments in that regard by the GCB somehow indicates it's support for the death penalty, they do nothing of the sort. They were merely concerned to place our submissions in the context of the mandate of this Commission. 
 May we also say that you need to be very careful to particularise one case and turn the person who sat in that case into an ogre. And here if I may depart from the hat I wear as member of the General Council of the bar and to say that as a member of the bar in Natal, who practised in Natal and has practised there since the early 70's and conducted well over a hundred capital cases and was a part of the system which brought about pro deo defences in those cases, there is no doubt that the personal predilections of judges influenced their inclination in the imposition of the death sentence, the GCB says as much. 
 May we also say that amongst those judges whom pro deo counsel heaved a sigh of relief when they heard their cases were to be tried before them was Judge Leon, who has attracted such stern criticism this morning. And pro deo counsel were delighted to know their cases were before him because he was well-known as a judge very reluctant to impose the death penalty. I say that merely to introduce a personal experience, one which was widespread amongst my colleagues and to introduce some sense of balance into the discussion. Thank you Madam Chair.

YASMINE SOOKA: Thank you Mr Wallace. I think you have, as has Mr Coetser addressed a number of the issues that have been raised and I think that probably in your submission tomorrow you will address some of them again. Could we move to NALSA please?

MR GODLOZA: My name is Godloza. I shall not deliver a speech. My president general will comment. Thank you.

MR MALATO: Thank you. I'm TP Malato of NALSA. I'm not going to comment much because of lack of time and apparently because I'll be having another steak tomorrow to chew and I will just say one word that I am not very much in ad idem with my colleague here next door from GCB because I can realise I don't know whether he is on a brief but he's defending the judges. My feeling is that ...(intervention)