Special Hearings — Legal Hearings — 1997-10-27

UNKNOWN: I would like to believe that our activism continues. We say very often that the struggle continues and certainly the legacy of apartheid is deep. However we look to the new constitution with its holistic rights, more particularly the social and economic rights, and as lawyers we hope to be able to use those rights in the courts, in advocacy, to bring some measure of not only relief but a redistribution of the wealth and resources of the country, not only through the courts but also at extra legal levels.

MR VALLY: Judges nominated by NADEL, amongst others, have chosen not to come to the Truth Commission, now even your nominees, I am not sure if they are still NADEL members, or can still be NADEL members are not here, the question that was asked earlier is how do we engage with the judges on these issues, because the attitude of judges is they will engage with members of the Judiciary and no one else on issues affecting their role? So especially since you are in a position that you do nominate people to the Judiciary and your own nominees have snubbed you amongst others, how do you recommend that we should engage with judges?

MR MPOFO: Thank you, this issue does touch in a way into the question of the racial composition, or the exclusive racial composition of the bench at least before the new dispensation.  The judges that you refer to, and I am not here to defend anyone, not even them, would by and large - or let me start by saying that until the new dispensation, NADEL, in particular had the policy that none of our members were to accept appointment to the bench. So that is point number one. That changed, with the change in the political dispensation, so in a way without excusing anyone insofar as we deal with them globally as the bench, in a way those judges that you are referring to would really belong to the generation of judges who have only been appointed since 1994 and after the accounts that have been made here or at least some of the atrocities or acts that were quoted here and attitudes prevailed in the country.

MR VALLY: You haven't answered that question: My question is simple, and I am sorry I am going so fast, it is just a question of time. We need to engage with people as to what is happening to the Judiciary in the future, you have nominated certain people and some of them have in fact been chosen. I see no black faces here either amongst as judges. I'm talking about representivity. Number one is, how do we engage, even with the new judges who also have deigned not to have come to the Truth Commission and how do we engage with them outside their chosen field of operation, that is only amongst the Judiciary?

MR MPOFO: Well, I don't know if Mr Vally is looking for free legal advice here. (Laughter) We don't know what powers you have to bring judges to this forum, if you want legal advice on that we will gladly give you, for a fee, yes. But all I am saying is that our starting point is that the judges should have been here, we are equally amazed as the next person why the judges saw it fit or did not see it fit to attend here. But having said that then the qualification I made about the generations of judges I think is quite crucial because it's a matter of historical fact that does punctuate the era that we are talking about as opposed to the era of the future which I....

CHAIRPERSON: Wouldn't you want to say I mean that they come into a particular culture, I mean they are new, there are people who have got certain traditions and they say this is how we have always done it, and it is very, very difficult for what we used to call "Msila" coming in into an institution and say "look here you guys, as from now this is a new dispensation, we operate differently". I think it is very difficult to change mindsets, to change cultures and perhaps, I mean you might be able to persuade the people that you nominate to say "look here, you are going in as pioneers and that's a very difficult position to be in, but we are hoping that you are going to be catalysts for change" and it is not easy to be that.

MR MPOFO: I can stick my neck if the question is put like that without having to consulted with my colleagues, that if the Commission were to convene a future meeting of this sort we would do everything in our power at least to put influence to those nominated by us and maybe even beyond those that we might have influence on, because as I have said earlier it is our view that the Judiciary should be represented. There is no way that this bridge between the horrific past and the intended more just future is going to be built if the people who, the pillars of the bridge are not even present here.

CHAIRPERSON: I think I will have to step in, Hanif. If you have questions maybe you can get them in writing or you could ask them to come again on another occasion.  Thank you very, very much. I do want to express our appreciation. Mr Minister.

CHAIRPERSON: Order please. It is a very great pleasure to be able to welcome you as the Minister to whom we are answerable, but of course it is also a great joy to welcome you as a very dear friend and when one thinks of all the things that happened it is just one of those funny things about this country that now we have got to say the "Honourable Minister". Minister, I am asking Joyce to administer the oath.

DULLAH OMAR: (sworn duly states)

CHAIRPERSON: Thank you very much Mr Minister, I think I am not going to be able to say to you time is of the essence, but you will know how we feel.