Special Hearings — Legal Hearings — 1997-10-27

UNKNOWN: Well the checks on the judiciary should never be left only to academics. Clearly the media must play a role and the public at large must play a role. Academics of course are in a better position to engage in constructive criticism than others, it is the nature of their work.
 I wouldn't agree that they've failed. I would agree that some failed. I don't think that one could say that academics on the whole did not try. I think that the record speaks for itself. If you look through the pages of law journals over thirty, forty years you will find fairly sustained criticism, not enough of it and perhaps the criticism should not have been made only through the medium of academic law journals, perhaps that was one of the chief failings. It was a failing that was remedied in the late 80's and the early 90's by academics who began to write in the pages of the press because they knew it would gain greater attention. 
 So strategies were not always as thoughtful or as helpful as they might have been but I don't think it would be true to say that academics failed in this enterprise. I also don't think that it is only academics who should be the watchdogs. I agree, however, that it is they who should be the principal guardians of vigilance I suppose.

MR VALLY: : My final question Professor Lewis. You singled out certain universities, I think it was Wits and Cape Town and Natal I think it was, these universities for a long time excluded black students and when they did allow black students they had to come in with a permit from their ministries. And didn't the administration of the universities also played role in monitoring the fact that people had permits or not? I say this because I have personal knowledge for example of a law student who completed most of his year at University of the Witwatersrand and thereafter was kicked out because it was found he didn't have a permit. The university took the step of de-registering him. Would you concede that in that sense the university was playing the same role as other institutions of apartheid?

UNKNOWN: I'm not aware of the case that you refer to and it is quite possible and I think that all universities have to accept responsibility for, as I indicated earlier, complying with the legislation, for complying with the Extension of Universities Act. I think one has to concede however that in the early 80's some of the universities did make a decision to defy the legislation and refused to accept the quotas that were imposed upon them, or that the state attempted to impose upon them. But it is undoubtedly true that the universities, perhaps had they acted in concert, would have been able to defy the law, and would have then had a much greater impact than in fact they did have.

MR VALLY: : Finally two questions combined in one. The university academics, and the debate is still on-going today were the academics at university were largely white, largely male and again reflected the mores and the culture of the society around them and therefore those universities were, if anything, not the bastions of justice and liberalism as it is claimed.
 And the second question is regarding academics who in fact collaborated and intellectually justified both apartheid system and certain practises in courts. How would you react to those two questions?

UNKNOWN: Well I would agree with them. I think they're comments rather than questions. Yes, it is true that the universities and the law faculties in particular were not always bastions of liberalness. Yes, it is true that law faculties were constituted largely by white males and that to a considerable extent is still the case. So yes, there was complicity and there was fault and those things do need to be addressed.
 As far as the defenders of apartheid are concerned, clearly they are as guilty as the judges who upheld apartheid rules when there was a choice open to them. They're as guilty as anybody else who sustained the framework that made apartheid possible. And there were many of them. I find it invidious however to sit here and to criticise colleagues, and certainly colleagues of an earlier era, but I would not deny for one moment that there was a great deal of sympathy for the apartheid system in many of the faculties of this country over many decades. That is clearly true.

MR VALLY: : Thank you Professor Lewis.

CHAIRPERSON: Thank you. Questions?

MR POTGIETER: Thank you Chairperson. Professor just two brief questions. You refer to the point that is made by Judge Cameron in his submission dealing with the fact that in a technical sense all legal practitioners participated in the system but I read you not to suggest that from a moral point of view that these people are all equal. That's the one point.
 The second point. Do you have any views that you might want to share with us if not now, if you want to reflect on it perhaps at a later stage, in regard to the question of accountability so far as the judiciary is concerned?

UNKNOWN: Thank you. I do agree with you that not all people were equal. How could one not, how can one say that somebody who actively pursued human rights matters, who was an attorney in South Africa and who took on the defences of people accused by the system, how could one say that they are equal with those who acted in very different ways?
 If one were to do that of course one would be suggesting that participation in any way in the legal system was in itself immoral and that of course is a complex argument and one that I think I would ultimately reject. Again for reasons that have been raised in submissions that were made yesterday and possibly for that matter this morning. I'm afraid I haven't been here long enough to know. But certainly it was better for the country as a whole and for people who were accused and people who needed to assert rights that there were lawyers who were participating. But I wouldn't suggest for one moment that all lawyers were equally moral or that all participated equally. That would be absurd.
 As to the second issue, the accountability of judges and I suppose of other members of the profession, I think very often the record speaks for itself, I think that it would have been very helpful to everybody here had the judges participated in this process, had we been able to understand their points of view and had they been able to understand the points of view of people who've made submissions up till now. I think that that would have called them to account to some extent. 
 As to how much further they should be called to account I do think it is an issue that requires further reflection. I cannot off-the-cuff suggest of a way in which this could be done without doing great damage to the whole process of reconciliation that I think is one of the primary purposes of this Commission.