Special Hearings — Legal Hearings — 1997-10-27

MR COETSER: : This thing is not working properly all the time. Mr Chairperson I will speak now and forever hold my peace. I'm used to defending people that can't defend themselves and maybe you will say that I'm out of order but I think it's important seeing that the judges aren't here today. It's a pity that they're not here. I just want to make a few points.
 First of all Paula McBride said, and she's right, that the judges are human beings. Surely they are. It would be a difficult task on this Committee, this Commission to judge the judges. In those years and we take it as a fact that there was a dark cloud over justice in South Africa. But let's be fair, they had a dilemma and this is highlighted in all the papers that we've got before us. I would like the Commission even while they're not here to read through what they have said, what the judges have said even what the bar has said and they touched upon the difficult position our judges were in. As I've said they're not here and this is just a statement in the air, maybe it could help the Commission. 
 I think by and large the job of a judge would have covered I think less than 5% of political cases and criminal cases. So by and large their job is to mete out judgements in other fields and we're very selective now when we criticise them. But so be it. They've got to answer to these accusations. And I think in the end I will request the Commission to read through all their submissions to understand the difficult task they had. 
 Saying that, that goes for the Association as well of which I'm one, the Association of Law Societies. I think in the end we can say to be honest, to be fair, to be truthful that the judges or some of them didn't do enough and did not use their discretion for the accused or for these people who had to suffer under certain unjust laws. But on the other hand everything wasn't bad, it wasn't all that bad and you will allow me to quote from one of the papers which you have in front of you. And I would like you to have a closer look at that. Those aren't my words although I share the feeling. My words are that there was a dark cloud but there was a silver lining and I think there was a golden thread to that dark cloud. May I just read to you if I can find it, I've got a lot of paper here and I ask you to bear with me for a second. 
 This comes from nobody less than the President of our present Constitutional Court and if you ask me where he said this I don't know but he did say that and it comes out of what Justice Corbett has said and I believe him. He says: 
"In reviewing the history of the courts of this country some writers have criticised the way in which South African judges have discharged their duties over the years. That they could have done better than that than they did I think is now clear but that is true of all of us and little is to be gained by lamenting the past. What is important is the future."
And this is what the Minister also said. 
"....and it is here that I believe that we will come to appreciate that we owe much to our judges. And a great deal to some of them. That is the truth. For despite all the paradoxes they have somehow held to the infrastructure and have kept alive the principles of freedom and justice which permeates common law. True, at times no more than lip service have been paid to these principles. And there have been landmark cases where opportunities to give substance to and uphold fundamental rights have been allowed to pass without even an expression of discomfort."
I think that's true. 
"....let alone a vindication of the right, yet the notion that freedom and fairness are inherent qualities of the law lives on, and if not reflected in all of decisions it none-the-less acknowledged and reinforced in numerous judgements of the court. That is an important legacy and one which deserves neither to be diminished nor squandered."
 Mr Chairperson luckily we have a Bill of Rights now. We never had that. And I'm full of hope for the future. Full of hope that under the new dispensation with a Bill of Rights justice will be handed out to each and everybody. Thank you.

YASMINE SOOKA: Thank you Mr Coetser. Mary.

UNKNOWN: Is this on? I think it's working. Thank you. I'm Mary Rayner from Amnesty International, the international secretariat in London. I am scheduled to give some evidence on Wednesday and will make some broader remarks then.
 But, perhaps I'd just like to say here that I think one of the most poignant failures of the legal system in South Africa centres around, from the point of view of our organisation which has dealt for many years with the rights of prisoners and detainees globally, that there was an, on overall perhaps with very notable exceptions, a failure of the imagination to understand the circumstances of persons delivered up in the court by the security police, some of whom were state witnesses, some of whom were accused, who'd been kept in solitary confinement or in other circumstances of great duress. 
 And I think the dehumanisation which happened under apartheid was reflected at the level of the court where the distance between presiding officer and the person brought in who was the captive of the police was vast. And a circumstance set in train which other people have given testimony about today in which the evidence of those who had power over those detainees was given priorities, more credible, etc. And this doesn't just apply to judges and magistrates but it was part of a complicated whole which the Commission is trying to grapple with, and in that complicated whole is the evidence of the district surgeons and others who contributed to that atmosphere. And I think it's a very important part of the Commission's agenda to try and give that whole picture which lead to individual decisions which failed the victims, who were completely helpless. Thank you.

YASMINE SOOKA: Thank you Mary. Advocate Hodes?

UNKNOWN: My name is Peter Hodes, I represent the general council of the bar. My colleague Malcolm Wallace will make our contribution.