Special Hearings — Legal Hearings — 1997-10-27

UNKNOWN: Thank you Honourable Chairperson, members of the Commission, the Minister of Justice, friends, colleagues, comrades and everybody else.
 NADEL wishes to express his sincere gratitude to the Commission for having it being present at this what is certainly a historic occasion. It is historic in many senses, Mr Chairperson, but unfortunately it is also historic in the default of our Judiciary to be here today and together with everybody else, Honourable Chairperson, we would certainly like to see the Judiciary here so that they themselves are not judged in default. We might proceed Honourable Chairperson to introduce the NADEL delegation.
 On my left is Michelle Norton, Brent Williams, Zanade Hussein, Mdali Mpofo. The submission has been broken up into four areas and my colleagues will assist us in making the submission and Honourable Chairperson, if you will allow us we will proceed through the documents at great speed.
 At the outset for those who have our document, we wish to just place on record our dedication of this submission to all activist lawyers who were in advice offices in the courts, in community organisations, in exile, in research and in the teaching of law contributed selflessly to the struggle against apartheid. We remember in particular the late Braam Fischer, MK Gandi, Huxley Joshua, Benny Keith, Bekkie Mlangeni, Griffiths Mxenge, Victoria Mxenge, Duma Nokwe, Sol Plaaitjie, Joe Slovo, Robert Sobukwe, Oliver Tambo, Godfrey Peche, Julius Miya and our colleague and comrade Soraya Bosch, who went to her untimely death very recently.
 Honourable Chairperson, the TRC has provided judges and lawyers with the unique opportunity to reflect introspectively and publicly on their role and that of the legal system in the commission of violation of human rights under apartheid. This historical moment requires lawyers and judges to take up the challenge of explaining to the victims, survivors, the nation and indeed the international community why whether wittingly or not deliberately or in protest, in silence or in clamour they allowed themselves to be used by the apartheid state in the furtherance of its perverse ideology, in the violation of the most fundamental rights of humanity and in the most vicious and violent subjugation of the majority of the people of South Africa.
 It is with a deep sense of responsibility that the National Association of Democratic Lawyers makes this submission to the TRC. In doing so Honourable Chair, we hope to contribute to some measure to your mandate in terms of the Act and more importantly to assist, albeit modestly, in laying the foundation for a true and lasting reconciliation in healing that our country so desperately needs and demands from all of us.
 Honourable Chair, it is appropriate for NADEL to record its, in this submission, it's views to the TRC and more particularly to the amnesty . . . (indistinct) the post-amble to the Interim Constitution. It was not without much discomfort and debate that the exigencies of our country's transition to democracy which necessitated the measure for amnesty were rationalised against our passion for true and simple justice.
 The political context of the Commission, the constitutional rights, values and the mechanisms of the Human Rights Commission, the Public Protector, the Gender Commission, the Youth Commission and the Land Restitution Commission, was important in our acceptance of the amnesty measure. 
 The real success Honourable Chair of this Commission is therefore inextricably linked with and dependent on the effectiveness and the success of each of these institutions and more importantly on the extent to which social economic conditions of the majority of people of South Africa are properly addressed. In this regard we note with concern the lack of adequate delivery by the government in its programmes to address economic and social needs of impoverished South Africans. 
 Besides the political considerations for amnesty the capacity and willingness of the prosecuting authorities to bring to justice the perpetrators on gross human rights violations and other abuses were simply not convincing. That the victims and survivors of these violations might have to undergo further trauma as complainants in the criminal process without the real possibility of the perpetrators being convicted further persuaded us on the expediency, by the expediency of the amnesty measure.
 We are mindful though of the serious limitations of the Truth and Reconciliation Commission. There are lawyers and activists committed to human rights, our dilemmas with regard to the amnesty process remained. We refer more appropriately to the submission made this morning by Prof Hinds in which he sets out the various concerns at international law and the extent to which our amnesty process meets our international obligations. Also Honourable Chair, in accordance with our international obligations together with the International Association of Democratic Lawyers we have collaborated in an international monitoring project of your Commission which we hope will provide a critical window to the TRC and which will also at the end of your deliberations also produce an independent report.
 Honourable Chair we then make a submission with regard to the contextual examination of the legal system. South Africa's legal system must be properly contextualised and scrutinised within the particular forms of colonial conquest and subjugation in South Africa's political history.
 The conquest of Africa brought about a systematic framework of laws that denied the indigenous people the most fundamental of rights. The repressive regime of laws and policies legitimised the pillage of natural resources such as land, gold and diamonds and paternalistically eroded existing customary laws, values and practices. In this context the ideological framework of apartheid and its legal system was part of a continuum of the early policies and laws of human servitude and subjugation. Apartheid's legal machinery was based on the inter-dependent economic and social interest and beliefs of the white minority. Prof Bundy crisply states this in his article on Law Power in Rural South Africa.
"Law is not neutral, it reflects existing interests and a distribution of power in any society. The law of 19th and 20th century South Africa favoured the property and employing classes. There was precious little neutral about the master and servant laws of the 1913 Land Act, the Urban Areas Act, the Group Areas Act or the Prohibition of Illegal Settlement Act."
 These and other issues expressed in statute form an asymmetrical property and power relation one might sum up as and I quote "I am your owner, you are the tenant, he is a squatter". 
 We then submit Honourable Chair, the international context and we will not repeat it because of the time, we will say in concluding the introductory piece, the challenge facing your Commission is considerable, as elusive as the truth was in many respects under the apartheid justice system so too will the Commission be confronted with many different forms than versions of truth. Justice, true and simple will in all likelihood not be achieved for the victims and survivors of apartheid. Reconciliation remains the greatest challenge. It cannot simply be legislated or prescribed from above, nor will it be achieved by mere apologies and contrite hearts. The Commission however holds out the desperate opportunity to create at the very least an environment in which the reconciliation of society can begin to take place.
 Honourable Chair, to then deal with the substantive part of the submission, my colleague Mr Hussein will talk to us about the legal response to legislative and executive actions assisted by Michelle Norton. I hand over to Zanade.

CHAIRPERSON: Thank you very much. Please Mr Hussein and ...