Special Hearings — Legal Hearings — 1997-10-27

MR HUSSEIN: Thanks Madam Chair. Professor Dyzenhaus has raised some of the matters which we sought to raise, but there are other issues which we need to concentrate on as well, one is the mode of presentation of the submissions of the GCB and the ALS. If you consider NADEL, BLA and other submissions on the one hand, they seem to all have a commonality of approach, and that is that the Law Societies, the Bar Councils did not do enough, in fact, did extremely little to voice their opposition against apartheid and capricious executive action and executive excesses.
 Today, on the other hand listening to the organised profession they are saying we did a great deal, in fact, they appear almost evolutionary, and I am afraid that from our point of view we don't share that view. It is one thing going through the records, the minute books of those organisations and pulling out from there resolutions which are exculpatory, and which speak out against the excesses of the past. That is one way of doing it, and that's the way that have sought to do it. 
 It's another thing actually looking at the milestones of the apartheid system, looking at the milestones of the judiciary, the magistracy, unjust laws and then asking what was the response of the organised profession to that. When a judge for example, we mentioned the example yesterday, sentences a white farmer to a suspended sentence and a fine for beating two black labourers to death over two days of torture, what did the organised profession say when those sort of excesses occurred? 
 From our point of view, it is no use pointing to resolutions tucked away in minute books and to delegations which went to see ministers at the time, to complain about laws, and to say that that on it's own shows the track record of those institutions. The question more pertinently put is, when with the passage of time each of these atrocities occurred did the organised profession speak out? And if it did, how did it speak out? That is an important issue, did it come out in an activist sense? 
 Now I think the question of judicial activism is not a question of opinion only, it's not that NADEL believes because it was judicial - because they were legal activists that everybody ought to be. 
 In considering, the approach of the organised profession and their response to the excesses of the past, one has to look at the question of relativity. They were faced with very serious excesses, and the question needs to be asked, was it an adequate response to have press submissions, to do a letter to the minister in charge? 
 They say they were constrained by the fact that they required unanimity. With respect, that's a facile excuse. They could have come out and have said that the very fact that there cannot be unanimity between the Bar Councils is an indictment on those Bar Councils, and that didn't come through. 
 What one finds is again, unremitting deference to the judicial system. A recognition of legal positivism is an issue that I stressed yesterday, and this is an important issue that this Commission will have to consider. When we look back at the past, do we judge the actions, of lawyers, judges, magistrates on the basis that they were themselves victims of parliamentary sovereignty, or do we ask ourselves the question that, were they justified in allowing themselves to be victims of parliamentary sovereignty? We're talking about learned people here. Mr Wallace reminded us today that in twenty three years, nobody has ever laughed at him, so today he finds it quite refreshing that common lay people have done so. With respect we don't need that paternalism.
 The question that highly intelligent people needed to ask themselves at the time, is do we have a parliament in the proper sense that is making laws, or as NADEL describes it, is it a chamber for legitimising oppression? The answer can only have been the latter.  Having come to that, to then put up legal positivism as a defence is no defense at all, and in fact is to seek cosy refuge and to justify the lack of stringent criticism and trenchant criticism against the policies of the past. And the TRC, Madam Chair ,with respect will have to ask itself when it considers the actions of lawyers, does it go beyond that paradigm that has been set of parliamentary sovereignty, and it has to ask itself the question were lawyers not required when they were faced with those atrocities to place themselves beyond that and to say to themselves "we need to speak out against that system". 
 We hear continuously that within the law we were able to do this, that and the other. But there were ways around the law, and to find ways around in decent unjust laws is a salutary principle. Technical legal polemic, as we submit the organised profession was engaged in today, which seeks merely to exculpate lawyers, on technical basis, for example positivism is not an answer to the community out there. This is not a court of law where one tries to argue whether realism, positivism or any other "ism" ought to have governed the actions of lawyers of the past. We're being asked by the communities out there, why, as people who were skilled in law, people who are educated in law, who spent several years doing so, in whom an investment by the community was made, we've failed the community out there. We are not asked to explain ourselves within a narrow context, a context which we set for ourselves here, and that with respect did not come through. 
 One wonders whether in fact there was a genuine desire to look introspectively at the operation of the organised profession or whether it was simply a review of the minutes to find exculpatory resolutions and the like. I am not suggesting that members of the GCB and ALS who are here to present their views, I am not criticising them personally, I am talking about the nature and tenor of the submissions and that needs to be made clear. The expressions of regret and apology, such as they were and which came through today, from our point of view seemed to be lost amidst the endeavours to find defences and justifications and rationalisations for their positions. 
 What the ALS for example needed to do was to say when Priscilla Jana was served with a banning order did they the next day stand up and express their outrage? Did they the next month in the De Rhebus have an editorial condemning that? Those are the issues - not whether their minute books reflect a resolution that was passed behind closed doors.
 And finally to suggest that it is a matter of sadness to the organised profession that NADEL and BLA was formed and that it is a matter of some amazement to them that we could not have come to their doors, is to deny the history and quite frankly is an insult to us. The only reason that you had organisations such as the Democratic Lawyers Association, Democratic Lawyers Congress, Community Law Centres and the like, throughout the country, was because the organised profession was not a home to people who sought to use the law as a terrain of struggle, who sought to be legal activists and no amount of pointing to minute books is going to change that from our point of view. 
 Priscilla Jana mentions, that letters were written to her, explain your action of saying "Aweto" in court. No similar letter was written to her expressing any sort of sympathy for her banning order. Nor was, it appears clearly, any letter written to her expressing sympathy for the fact of her personal circumstances and of her circumstances as a practitioner that couldn't do - that was disallowed from fulfilling her functions because of the laws of the time. Those are the acid tests.
 So yes, the apology certainly came through, one notes that, one is happy that at last there has been this apology, but with respect from our point of view what was required was a bearing of the soul and saying to the community at large out there that the legal system failed you, not because of notions which in the context were inappropriate, like positivism, like the independence of the judiciary. A lot has been thrown behind that concept. 
 And where judges who make clearly racist statements in court, are asked to come here and explain that it is said to us that we are impacting upon their independence. With respect that's nonsense. There is no way that their independence to make judgments, to consider facts before them, to give decisions can be impacted upon by them being asked to come here and explain to the people out there why there was a failure. 
 The magistracy is not here! Absolute silence from the magistracy and that is an indictment on the magistracy. There was also notable, there was a conspicuous absence of criticism by particularly the Law Society against the judiciary and the magistracy, and that speaks for itself to the extent that in a critique of the past one loses sight of the role of the magistracy and judiciary, and one seeks not to raise their defalcations, that on it's own is an indictment. 
 So we're concerned that there has been great endeavours to be defensive, to rationalise and to justify activities. We think that more purpose would have been served if in fact, there was an opening of the hearts and there were apologies which were unqualified. Thank you Madam Chair.