Special Hearings — Legal Hearings — 1997-10-27

MR WALLACE: Well we'll check it and we'll find out and we'll write a letter to the Commission giving you the information and if there needs to be an explanation we'll give you the explanation.

CHAIRPERSON: Ja I think that, that will probably be the best way of resolving that particular matter. Mr Vally?

MR VALLY: : Just to understand what you said was factually incorrect. I think your own submission says that initially when the Johannesburg bar council was formed the people of colour were not allowed to be members, but by the time the GCB was formed, the Johannesburg bar council did allow black membership.
 However regarding the position in Natal. I want to quote to you what deputy president of the constitutional court, Pius Langa at page 7, I believe you have his submission, says: 
"I was admitted as an advocate in 1977 and became only the fourth African practising at the Natal bar. None of my three predecessors were silks. My induction was relatively smooth. Unlike the reception which the first and second of my predecessors received on admission to the Natal bar. Both advocates Shabalala, now Justice Shabalala and Advocate Skweyiya, now senior counsel had not been allowed to serve pupillage. According to Justice Shabalala the reason given was that since he was a black person it would be embarrassing for his master's white clients to have him sit in during consultations in chambers. Both could not be allocated chambers with other advocates at Fenton House because of the Group Areas Act. Both therefore sought and operated for some years form chambers elsewhere in Durban in an Indian area. It is only some years later that the society had second thoughts and decided to apply to the authorities for an exemption to the stringent Group Areas regulations.
 The representations by the society succeeded to the extent that African advocates were granted permits, renewable yearly to practise from chambers at Fenton House. This opened the way for other Africans to obtain chambers at Fenton House. There are other cases which are well documented of black advocates being treated in a disgraceful manner at bars elsewhere in the country where they sought to acquire chambers; to use robing rooms and even to get accommodation for the night. 
 I, on the other hand, served my pupillage in the normal way benefiting immensely from the mentoring I received from my three masters who in addition treated me with the utmost courtesy and respect."
 So clearly the fact, the statement that no black counsel in this country was refused pupillage flies in the face of Advocate Langa's statement.

MR WALLACE: You know really Mr Vally with all due respect if you would listen to my answer in the context of what Justice Langa said, I did not say to you that Mr Shabalala and Mr Skweyiya were not refused pupillage, I said I had been unable in the records to ascertain the circumstances. This came to me far too late. The position is that since pupillage became compulsory, and can I stress that, since pupillage became compulsory, which was the 1st February 1973, and I know the date because I was the last voluntary pupil to serve pupillage in South Africa, it was introduced on the 1st of February 1973, no person has been refused pupillage in South Africa. That is what I said a moment ago. I haven't changed it. It is not in any way incorrect.

CHAIRPERSON: Mr Vally?

MR VALLY: : Clearly the legal profession, the white legal profession which was largely what the legal profession consisted of for a very long time in this country only white people reflected the prejudices of the society they came from, and you made a statement a short while ago - I wanted to get clarity on that in case you accuse me of misquoting you. Is that correct?

MR WALLACE: What I said to you, it is clear that there were no large numbers of people of colour who became members of the bar until the 70's. And I think we've probably mentioned everybody who did join the bar before that. The majority of the members of the bar were white and male, we've said that in our submissions. Their political views ranged from the extreme left to the extreme right, however you want to characterise that and I don't want to name names, and all stages in-between. What I said to you and I say it again is they reflected that range of views across the board. And they would have gone onto the bench, as everybody goes onto the bench, with whatever personal predilections and approaches they might have had.

MR VALLY: : I want to quote you a statement made by Prof GAG Griffiths in his book, Politics and the Judiciary
"As an inevitable consequence of the dominant, illiberal societal ideology judicial ideology will in the end follow suit."
How would you react to that statement? Would you agree with it?

MR WALLACE: One could and it might be facile simply to say that Professor Lee's response to Professor Griffiths' book is to say that if any one of Professor Griffiths' books, any one of Professor Griffiths' students had written an exam paper on the basis of simply applying the theories in Professor Griffiths' book, Professor Griffiths would undoubtedly have failed him because of his ignorance of the law. Those views are controversial. There is a school of jurisprudence known as American realism which draws it's views from Justice Oliver Wendell-Holmes and Justice Jerome Frank which says that law is what the judges say it is and therefore you must look at the judges personal predilections. It is a highly debatable school of jurisprudence.
 No one suggests that advocates or judges or any other human being in society is unaffected in the way they take decisions and in what they do and say by their background and preconceptions. The true debate is the extent to which that is true in the professional context. In the professional context I don't believe it's entirely true. There are obviously elements of truth to it and there are obviously elements of error to it.

MR VALLY: : We've had some submissions by judges, including Judge President Friedman who've criticised the way the judiciary performed during the apartheid era, especially as regards the issue of security legislation. In your own submissions you say so. You also say on page 37
"We do not subscribe to the view that judges were powerless in the face of the doctrine of parliamentary sovereignty. Judges do more than merely declare law. Judges can also play an important role in mitigating the harshness of repressive statutes and in advancing civil liberties."
 Now on the one hand if you criticise the role that judges play, and you've mentioned that there was a minority which played a noble role, but majority of them did not, they came from your nursery school, which was the bar council. I'm trying to get clarity on when you criticise people when they are elevated to the bench or retire to the bench or whatever you want to call it and they come from the bar councils this is where they were nurtured and weaned. Why is it so difficult Mr Wallace to say that there were deficiencies in the bar council system which resulted in deficiencies on the bench?

MR WALLACE: I don't think I am having any difficulty with that Mr Vally. I'm having some difficulty in knowing what the question is. I've said repeatedly and we've said in our submissions the background of the people who became judges is that background. We've tried to highlight the shortcomings of the bars and so on. I can't take that any further. That is where the majority of judges had their professional training as members of bars. Yes, that's entirely true. Other than the random government employees from the civil service, the attorney general, the diplomatic envoy who was brought back to go on the bench and those sort of things, yes that's true. I'm not quite sure what the question is.

MR VALLY: : Well it's the first time you've made that concession.

MR WALLACE: It simply isn't Mr Vally.