Special Hearings — Legal Hearings — 1997-10-27

MR VALLY: . . . by the Allied forces certain decrees were passed and thereafter Judges were prosecuted. Specifically on one issue for example, for their participation in the creation and implementation of cruelly discriminating legislation which led to abduction, torture and murder and extermination of political opponents in certain ethnic groups, and subsequently with reunification of Germany where certain judges from the old German Democratic Republic were put on trial by the re-united Germany.
 On issues like mass removal of people on grounds of race, discrimination on grounds of race which was justified by the legislation where the Courts have legally justified the actions of the government by holding them to be legal in the context of South African law. 
 Just very briefly, because we have been asked this question a number of times especially in international forum, would there be any basis, sorry I am dragging this out a bit, but the tribunals that were created after Nuremberg, the principals enunciated in these tribunals are now accepted as being international customary law, at that stage they were not. On the basis of international customary law, is there any basis to try judges for enforcing manifestly discriminatory laws in South Africa.

PROF DYZENHAUS: You have raised a range of issues which are far outside of my expertise but I will reply obliquely to your question and that is by referring to the German experience.
 In my written submission and I presume these are available, I refer to a book by Inga Muller a serving German judge, which is called, it's a bad translation of the title "Hitler's Justice, the Courts of the Third Reich". It is a bad translation of the title because at least a third of the book, as I recall deals with German record after the 2nd World War and one of the things that Muller points out is that the German Judiciary, who mostly kept their jobs after the war, despite having watched the very high ranking members put on trial at Nuremberg, did exactly what they had done during the 3rd Reich, why, because there was no process of accounting either in the very high profile Nuremberg case. And I think that what the Truth and Reconciliation Commission offers judges is as non threatening an atmosphere as is possible to have for a judicial accounting for what they did and I am not sure really whether that is even worth talking about whether judges could be tried. It is much more fruitful I think to look back and ask why they failed in their duty and how they can inform the future.
 Perhaps just one other point, I think that judges who worked during the Nazi era had a very different experience than South African judges. In the Nazi era if you bumped up against the authorities you disappeared and your family disappeared. The choices that people had to make, people in positions like judges were truly awful, no South African judge was faced with that choice. Perhaps the worst thing that could happen to a South African judge is that his senior judges might get cross with him and I think we need to know more about how that kind of thing worked and he wouldn't get promotion but he had a job for life and a very comfortable job and a very comfortable salary, he had all the space to make the right choices and yet most of them failed to make the right choices.

MR VALLY: In your examination of the failings of the previous Judiciary and there have been other submissions in this regard, I say this particularly because a number of the judges who have been newly appointed post our democratic elections have also chosen either not to make submissions or to come here, is there still a prevailing culture which is a hangover from the apartheid era amongst the Judiciary?

PROF DYZENHAUS: I think the only answer to that is time will tell, but I think if one looked at the submissions from the judges that I mentioned earlier, I would worry about a prevailing culture.
 If those judges really think that they have nothing to account for, that the Appellate Division has nothing to account for, that the judges, particularly the Transkei, have nothing to account for, then one should be worrying about the kind of judgments that they are going to be delivering in the future.

MR VALLY: Specifically what recommendations would you make bearing in mind that the Truth Commission's mandate is to make recommendations in its report as to what steps should be taken to prevent the reoccurrence of gross violations of human rights, what recommendations would you make regarding the Judiciary which you think we should incorporate into our report?

PROF DYZENHAUS: I think that in some of the submissions there is already a lot of helpful thoughts about this because the judges by and large seem to be very enthusiastic about an ongoing process of legal education for them in the culture of human rights and it is just a pity that the document that the Truth and Reconciliation Commission will produce will not be as full a document as it would have been in the process of that education had the judges been here to speak to us.

YASMINE SOOKA: Mr Dyzenhaus I think you allude to the fact that there still is a prevalent culture of unaccountability in a sense, particularly from those judges who were part of the old regime and in fact who in the present submission say that they have nothing in fact to feel wrong or to feel guilty about.
 Now we do know that we do have a more transparent system of getting new judges into the system, but at the same time there are too few to make the real impact on the Judiciary and if one looks at the present statistics most judges are still male and still white.
 Now if one is looking forward to the future, besides the question of education on the question of Human Rights, there is also the question of understanding what the different culture is out there of the majority of the people and they are still too far and too little within the Judiciary, what do you think can be done to get that recognition of a different value system which operates at a different level out there and which belongs to the mores of the people on the ground, how do you think that prevailing attitude can be brought about into the bench so that there is a reflection of the value system of the majority of the people of South Africa?

PROF DYZENHAUS: I am not exactly sure what you mean by the value system of the majority of the people in South Africa, because take for example the case about whether the death penalty is Constitutional, the majority of people in South Africa like the majority of people in most other countries of which I am familiar might well be in favour of the death penalty and I don't think judges should be deciding whether the death penalty is Constitutional or not in accordance with the values of the majority, they should be looking to the law. And perhaps part of the issue and this is one of the many terrible legacies of apartheid is that it is not just a process of educating the people who hold office, it is a process of educating the majority of people in South Africa when resources are very scarce about what it means to have a country that's ruled by the rule of law.
 And I think Bishop Tutu in his opening address made it very clear to us just what the obstacles are for people who saw the law of justice as also suffering a humiliation to understand why it is that perhaps we need an independent judiciary to uphold values which might not be values that necessarily lead to results that they want but nevertheless are very important values for structuring the whole of the new political order.