Special Hearings — Legal Hearings — 1997-10-27

UNKNOWN: We are indebted to you Honourable Chair and the Minister. Honourable Chair the fourth section deals with the institutional and ideological context of the legal systems failure to protect rights and in this section we argue that one has to look at the roots of the failure is really to be found in the institutions and the ideological perspectives of their functionaries.   The section deals with the racially exclusive institutions and when we need say no more than note the separate universities, the further institution we note the Pretoria Bar, and tomorrow we would hear more from the General Council of the Bar, the intransigence of that bar, the structures administering justice. We note all too clearly the magistracy which was predominantly white male; we note all too clearly clerks of courts, orderlies, the prisoner's friends ironically were all whites; we also bring attention to the position of the late Duma Nokwe who was the first African to practice as an advocate in the Transvaal in '65 where a special robing room was set up for him in the Supreme Court.   We also give you very interesting statistics from the Department of Justice with regard to the sizes of these cloaking rooms of whites and non-whites. We made once again reference to the celebrated and really the unfortunate case of the late Peche and the Appellate Division's attitude to the separation of the facilities.  We also remind you, Honourable Chair, that in the old days the Courts were divided by that panel in-between, one side it was Blacks and the other side of course was Europeans. But we note that there were certain judges who were not prepared to brook such separate amenities in their courts. We note the Justice Beyers and Justice Fagan in the Cape.   We also talk about racism in the courts which affected black petitioners. Nelson Mandela recalls the frequent use of refusal by white witnesses to answer questions from black attorneys. Instead of citing them for contempt of court the magistrate would then pose the questions they would not answer from me.  We talk about the practice in the courts in the Law Reports the functionaries of the legal system to refer to black people merely by their first names, and we talk about the instance of Bongani who was referred to as a witness and throughout the entire script of the proceedings Bongani's surname is not mentioned once at all.
 We refer to the role of magistrates in juvenile matters where special efforts and attempts were made to find the families of juveniles, particularly of white, little or nothing was done where it was black juveniles. Social Welfare reports were sought for white juvenile offenders, hardly ever for black juvenile offenders. 
We then talk about the obstacles to legal representation of victims of violations. Mandela notes: "Working as a lawyer in South Africa meant operating under a debased system of justice", and that really speaks for itself. We refer to the limited pool of lawyers, and a single point we wish to make here, Honourable Chair, is that those lawyers who in fact became involved in political cases did so predominantly as a result of their own strong political consciousness and it is an important point to note. We talk about the restriction of black practitioners, their freedom of movement in offices and we recall all too clearly how even black lawyers like everybody else were subject to pass stoppages, a black lawyer has not been able to open up a practice in a white group area. We remind ourselves of the indignity of the present Chief Justice who actually worked for many years in the law library of Johannesburg Bar because he could not occupy chambers in the building. I really hoped that he would be here today to tell us about those experiences. Funding. You would recall, Honourable Chair, that the banning of the South African Defence and Aid Fund(?) in '66 created a tremendous crisis for lawyers dealing with political matters. I think it is appropriate for us to pay tribute to the organisations such as IDEF, the South African Council of Churches with its Defendants Conference, we pay tribute to the Danes to the Norwegian Governments who made funds available for very many lawyers to protect people who were on trial. Its appropriate that this submission records the contribution and the role of those millions of people in the international community who were not only in solidarity but in fact made it possible for us to work at the courts ...(indistinct). There was discouragement and harassment of lawyers. Many instances of lawyers who themselves had become victims of the crisis and of the conflict that we were in. We remember most more appropriately the late Victoria and Griffiths Mxenge where as a result of not only their lawyer work but their political commitment had become victims of the conflict. We talk about communication and we as lawyers we remind ourselves all too clearly about when consulting with our clients in prison how difficult it was in the sight of lawyers and only when the Supreme Court laid down binnesig maar buite vehoor did warders then really respect the privacy of attorney / client communications. We also note under Section 29 the difficulty of detainees and our clients in communicating not only with their parents but also with their lawyers.  Political trials and the location of those trials was often used by the apartheid state not only to frustrate the attendance by families but to frustrate proper legal representation. The Delmas trial is really the celebrated trial of taking a matter into what you would call the 'gamadoolas' where difficult not only for family but lawyers to attend to the matter.  We talk about the role of the Public Prosecutor in shifting venues, the reference is made to the experiences of the Yengeni trialists after Section 29, six months were then brought to trial on their first date. The families were directed to a particular court whereas the matter was to be heard in a completely different court. In that court the Security Police and all other police had occupied the court completely. Under C we talk about the attenuated judicial independence; we talk about the magistrates and the all to obvious lack of independence of the magistracy. For a number of years they were regarded as no more than civil servants. A real extension of the Department of Justice and only recently was any attempt to give them some measure of independence.  We also remind ourselves of the time when the magistrates in Durban were feted(?) to a video on ANC and UDF violence almost in preparation of their being able to preside over public violence matters.  We recall the late Justice Milne who recommended that those magistrates who in fact attended that video sitting should not preside over those trials.  With judges. Much has already been said but we point out how attenuated their independence was. The appointment of judges by the National Party; there is much evidence about the Rabie court and the selected group of judges who would preside predominantly over the emergency matters. We refer to the use of judges in Commissions of Inquiry and once again reference to the Rabie Commission of Inquiry but it is not only in that that we judge the independence of judges, but we also look more closely at their own role in the courts.  And once again, Honourable Chair, we refer to a series of cases, but the most celebrated of which is none other than the comments of Justice M T Steyn in the Bloem matter which many lawyers know all too well where the judge made pretty strong political statements and one would have thought as an officer of the court would not have been appropriate to have done so.  But those were certainly the influences on the judges.  Lawyers conception of their own role. The avoidance of values, deniance of choice. We have heard this morning at length about the notion of parliamentary sovereignty and the extent to which much of the role of judges and lawyers were in fact hidden behind. The all ...(indistinct) notion of positivism under the parliamentary sovereignty notion. Little would be achieved in repeating that.   We talk about the conception of choice, the extent there was a choice by very many of the judges, but failed to exercise it.  Failure also by the judges to comment on unjust laws and comment has already been made about that. The lawyers embrace for a false(?) distinction between law and politics and that, Honourable Chair, takes us to our concluding part and we hand over to Dali Mpofo.