Special Hearings — Legal Hearings — 1997-10-27

MR COLLERFIN: Thank you Chairperson. From listening to the submissions during the course of the day it is clear that the overwhelming thrust is that we had a judiciary that was very much executive minded. Now the question is did that happen fortuitously or by design? I'd like to think that it happened by design. I think for the apartheid state to sustain itself it must have realised that it needed a judiciary that was both responsive and sensitive to it's needs. And went about appointing such a judiciary. And in support of that I'd like to just quote two lines. The one is
"There can be no real doubt that one of the factors considered by the Minister was the political views of the candidate."
 Secondly, I'm quoting as well - 
"There was a widespread perception that those judges who were known to oppose apartheid were often not selected to sit on the bench when security or apartheid matters were to be traversed."
This seems to suggest to me some kind of design. These words belong to the former Chief Justice Mr justice Corbett as well as his former deputy, Mr justice van Heerden. And I think in the sense of accountability if this is the perception that was there and there's nothing in these submissions to indicate that, that wasn't the case, I think in terms of accountability the country and this Commission is entitled to have them be here and say - Well if that was your perception and how was it designed? Who chose these judges to sit on these cases? You saying that this happened, please tell us that. Because I'd like to believe that if you choosing judges you choose them with a particular objective in mind and from my limited knowledge of the criminal law that would well be defeating the ends of justice. But I'm not suggesting a prosecution. I'm saying that at least prima facie we're entitled to that kind of explanation.
 Chairperson I'd like to also think that having appointed these judges the executive must have been surprised at one stage by the level of enthusiasm that was displayed by these judges that went well beyond their own expectations, and that indeed is sad for me. It's sad that when as a practitioner you often saw judges going well beyond the call of duty. And I do believe that in accounting for the past without dealing with the role of these judges in the way I've suggested can never be complete. And the work of this Commission can never be complete. 
 It has been said by many eminent judges, I think Judge Baquati of India was one of those, that a court and a justice system must provide a haven for those who are oppressed and bewildered. I think we can sit here and analyse for the next five days but I think we all in this room must accept that our judiciary and our legal system failed to do so. And it doesn't help unpacking that anymore except to say it was a dismal failure. I think the fact that your Commission has received 12 000 submissions from victims is perhaps more than compelling evidence of that failure. And perhaps the idea is also to move forward but you can't move forward without examining the past and without examining that role. 
 Mr Dyzenhaus has said this morning in response to a question that that legacy probably still exists in many parts of the judiciary. How do we feel comfortable proceeding into the future without addressing that legacy? I think it's dangerous to just assume that it will go away. It is still there. I see it daily and I think many of us here see it as well. 
 With regard to the submission made by Paula McBride. I worked with her for many years and I might be accused of partiality but again in the day-to-day work that we did I experienced the anguish of those people who sat on death row who were allocated pro deo council and who never got a fair shake. Very much the case was that justice was by and large determined by the quality of the representation and money got you off and again that is the reality of today. 
 So I'm saying that we perhaps haven't quite learned from the past as we still continue with the mistakes we make. 
 With regard to Mr Stefendas I'd like to support the recommendation made by the person making the submission that someone go to see him. I did speak to him a couple of times prior to the establishing of this Commission and we always indicated a great respect for your Chairperson. And if that is at all possible I think it will go a long way, that act of compassion will go a long way towards repairing some of the harm we've caused this man over the years. And I think if the Commission is about compassion then that may not be asking for too much. 
 I'd like to support the calls that we look at the magistracy carefully because that is after all where most South Africans experience justice or a lack of it. I think there are good magistrates who have taken steps to perhaps make their courts more friendly but I think a lot still needs to be done. Racism differentiated treatment is still very much the order of the day.
 Just to give you a brief example if I may. I went to a rural part of Mpumalanga the other day and a person was found dead in a field, eyes gouged out. And apparently the analysis of the first officer of the scene was death by natural causes. Three days later a sheep went missing and the entire police force got into action. People's pots were opened and if meat was found in your pot you were suspect. I'm just giving you the example to indicate to you that the value of black life is still very much down on the scale there, even four years into a new South Africa and we need to deal with that. 
 I don't want to respond to the point of Mr Wallace but I'd like to say that independence is not an absolute concept and it doesn't exist in the air. Judges live and exist within a society and while we must ensure that we respect their independence that independence cannot exist in the air so to speak. 
 Thank you Chair. I think those are the points I'd like to make for now. Thank you.

CHAIRPERSON: Thank you Mr Collerfin. Thank you.