Special Hearings — Legal Hearings — 1997-10-27

MR MOLDENHAUER: Thank you very much. I'm Heinrich Moldenhauer and I'm chief magistrate in Pretoria. Mrs Chairman I think that the Commission has experienced first-hand some of the problems that magistrates have from some of the lawyers. They always ask for adjournments or postponements. I'm speaking in my personal capacity as Chief Magistrate of Pretoria and I want to concentrate on the present and the future on the same line as our Minister.
 I'm one of those our Minister referred to as impatient with the pace of reform within the judiciary. Unfortunately at the present we still have within the judiciary people who adhere to the old ideas and even old ways of doing things. That attitude regarding submission of the Magistrates Commission is such an example and I'm ashamed that the Magistrates Commission did not see it fit to make a submission. 
 Mrs Chairperson we need the assistance of the judiciary, the business and the community as a whole to assist us to make the very much changes that we need in magistrates offices. As our Minister said they must be more acceptable for the public. We must change it to a place where everyone always be treated with dignity and as human beings in the court as well as in the magistrates office.  And of course the magistrates offices must be more user-friendly. For example in Pretoria we have now an information desk for the past month and a half and I can tell you that it is doing a lot to make it user-friendly. The information desk handle on a daily basis a lot of enquiries whereas in the past there was no such facility where people could ask where to go or where a certain court are and so on.
 We especially need a lot of changes regarding the maintenance courts and the children's courts. In Pretoria at the courts we have done a lot but the backlog in this regard is tremendous. Not only must we make the environment within magistrates offices more user-friendly but most important thing is the changes of attitude. This is a very difficult task. Mrs Chairperson even now in 1997 I find myself in the middle of a role where even the object of some articles in Afrikaans Sunday newspaper because of the fear of changes of some of the magistrates who still clinch to the past. And maybe that is an answer to my friend why the magistrates did not make submissions. 
 One of or some of these allegations by a few magistrates for example as regarding the change of attitude with photo's that are attached to inquests, photo's of people who have lost their lives in unnatural way, photo's that are really not relevant to make a judicial decision on whether someone was unlawful responsible for the death or not, photo's of naked bodies and so forth and in asking the magistrates not to allow those type of photo's as part of the record they now refer to it as I'm interfering with their discretion. You see that is that deep-rooted change of attitude that we must still bring about. This whole row that erupted in Pretoria is now a clear racial issue where the black staff are full of praise for the changes I brought about in the Pretoria magistrates office but some of the white magistrates resist all such changes. Mrs Chairperson we need training of the magistrates and make them more sensitive for the human rights as a whole.
 To conclude I would like to plead with the Commission and the community at large, please assist us who are willing to change the structures of the past and also to make magistrates offices a place that can be proud of and upheld the human rights and where every person can feel and be treated like a human being. Thank you.

CHAIRPERSON: Thank you Mr Moldenhauer. Mr Maloi?

JAKE MALOI: Thank you lady Chair. Jake Maloi, Black Lawyers Association. I'm not going to take your time. Much of what has been said here is common cause. It may be perhaps necessary to mention that some of the issues raised will be addressed in our submission in due course.
 However I find it compelling for me to mention that my understanding of this Commission is not to pass judgement upon the guilt or not derelict of duty or negligence or whatever of judges or anybody else for that matter, the letter and the spirit in which this Commission was set up is targeted in addressing the injustices of the past and extending a hand even if it's a token that wrong was done, we are changing. 
 I do not see in the slightest manner how the presence of judges in this Commission, we don't say the entire judgeship should come here, representative could have done the job and said this is what we understood and extended a hand to not the Commission, I don't think it's the Commission they owe anything to, I don't think it's the President of the land, I think it's the South Africans from all walks of life. If they could hear that judges did not see themselves above everything else and talked to us as South Africans via of course the TRC that by way of achieving reconciliation would have gone a long way. 
 The past atrocities under the apartheid regime were supported mainly by two structures, and that was the security forces and of course the courts. It's common cause. It's a line running right through the submissions made here admitting those wrongs of the past. Because we fought those two structures apartheid I believe would not have lived one day. It would not compromise the independence of the judges to indicate their willingness to share in this exercise. There was no pronouncement going to be made as to their credibility, as to their independence, as to their guilt or otherwise to the extent that any argument that the mere fact that we now have a Bill of Rights and a Constitution that in itself is a guarantee not warranting the presence of the judges goes beyond my comprehension. I say that because everybody else knows that the rights as contained in that Constitution under the Bill of Rights are not self-activating rights and the majority of people who do not, that do not know about their existence cannot expect that simply because a right has been infringed then automatically there will be a remedy on the way. No the contrary is that those people must still go through the judicial process to address that infringement. 
 As I have indicated the decisions of the judges would have wider impact than anything else. The magistrates where they were had no choice once a judge somewhere had made a decision they had to follow that decision. And in the magistrates courts that's where the majority of infringement of human rights took place perhaps not intentionally, at times they were just referred to a decided case and say: "What can I do in the light of this case?" And pass the judgement. 
 My feeling, and I believe I articulate here the feeling of my organisation is that it would really, much as we respect the independence of the judges, that is a salient principle but we are in a different country, we are in a different stage of our development, in a normal situation where democracy is the norm one would not expect the judges to come and explain anything because there are in-built balances and checks to see to it that the right things are done. However, especially in out position where we are faced with transition that gesture from the judges of having come and made a submission I want to believe would have gone a long way towards facilitating the reconciliation. 
 The security forces have done it with a measure of success by engaging with the people on the ground and putting up community policing structures. It doesn't mean now they are subjecting themselves to those people or they are losing their authority or power, I believe it only serves to show that we are moving away from the normal, from the abnormal to the normal. I thank you lady Chair.