Special Hearings — Legal Hearings — 1997-10-27

YASMINE SOOKA: : Thank you Mr Hussein. Vincent do you....

VINCENT: I am not to sure you really want to hear me at this late hour, except I do want to make just one or two brief points. The first really goes to reiterate the position about the magistracy. We have said much about the judges not being here, I don't think we've said too much about the magistrates not being here, and I think the submissions today by Priscilla Jana, Lee Bozalek and others highlighted, particularly the students also, the particular role that the magistracy displayed under apartheid and the extent to which, in many instances it was the coal face of the apartheid legal system at it's worst. Honourable Chair we hope that in your further deliberations you would point those questions to the magistracy so that when you do your report you would be able to get a much more broader picture from them.
 One of the issues raised - I want to comment on the submission by Professor Lewis, one of the concerns raised was a lack of analysis on the extent to which the State's budget for particularly white universities impacted on the type and the nature of education given to white students as opposed to black universities and what that meant, and that really to a large extent those who lectured at the white universities and those who went to the white universities were more than just privileged, they were able to benefit in a very real way by State resources as opposed to what happened at black universities. And today we have a legacy of that in that we have understaffed, we have over-subscribed student numbers at HBU's, we have a serious lack of resources, so h white universities need to introspect and see the extent to which they benefited from the allocation of State resources by the apartheid State. Nowhere does it ever come across to the extent to which they were prepared to share those resources with any of the other universities, and even today despite those disparities there's still no real commitment to the sharing of those resources. 
 I thought one should also ask the extent to which there were legal academics who collaborated actively with the apartheid machinery, and we hope that you would point those questions to the universities, to the extent where within the ranks of the academia there were those who advised the State, who collaborated actively with the apartheid State so that our investigation is a little more penetrating with regard to the academic world.
 Without the restating or echoing what my colleague and comrade has said with regard to the ALS and GCB, I think it would be fair to say that there was a greater sense of contrition by the Law Societies and the Bar today, and appropriately so, not that the Bar Councils were in any way less complicit than the Law Societies, but today we really saw some measure on their part for contrition. 
 There's also been a failure to ask of the Bar Councils the extent to which they themselves are part of a process of transformation and restructuring. They've always put up the argument that they are voluntary association, they're not statutory, and therefore they are not the subject of restructuring. But it is obvious that they do exercise certain measures in which they attempt to regulate the advocates' professions, which they admit, to some extent. Therefore, the question arises the extent to which they themselves should be the subject of restructuring, and not just the Law Societies, and there has always been a hesitance on our part, as we perceive it in NADEL by them to be the subject - it is not just a question of writing a letter to Advocate Phosa, it's more than that, the extent to which restructuring and transformation of the Bar is an integral part of their process and their agenda for transformation. 
 One of the issues that did really raise concern with the Law Societies was the notion of the Oath of Allegiance put up and that is all lawyers we took an oath of allegiance to the State, we certainly did not take an oath of allegiance to the apartheid State. If anything, we took an oath of allegiance to undermine the apartheid State, and I think a distinction must be drawn. That's why we distinguish ourselves from the establishment lawyers or the lawyers who operated within the Law Societies under the particular milieu and ideological context that they did. We worked with these lawyers, we used the cause as terrain of struggle, unashamedly, and to that extent would continue to use the cause as a terrain presently in furtherance of the principals and the values of the new constitution. 
 It's getting late, but one of the lessons that we must raise is that when mention was made of sentencing and bail, and I think it was ironically Priscilla Jana who herself who serves on the justice portfolio committee now. What were those lessons of the apartheid State? Sentencing policies by magistrates, bail being refused by Attorney Generals, and yet today we see before our very new parliament legislation to undermine those very values that we've said that we were fighting for. And as lawyer's bodies, we have to go before this parliamentary portfolio and to remind them of those constitutional values, of those values where we believe that minimum sentencing really impinges, as we understand it, on the independence of the judiciary which we hold dear. 
 On bail and the crisis and the hysteria in which the State responds to crime in the country, is to curb bail and in the same time is to undermine some of the values of the constitution. These are the lessons we now learn and if we don't state this, then really what we say is that we've learned from the past, but right under our very noses in the past few weeks, we have seen our democratic parliament debating how best to curb these fundamental values. So we raise it, because it is of concern to us, and if we learn to, if we are to learn anything from the past it must inform what we do today.
  We must just say that it was, I think from NADEL we were - we must place on record our deep gratitude to the students. It was really refreshing, it was inspiring after a day of sometimes, somewhat uninspired contributions to hear the students with such commitment and we are quite confident that the legal profession is going to be bequeathed into good hands with that commitment and that thinking, and I think certainly a profession that we are going to be proud of notwithstanding the difficulties that we now face and have faced in the past. We thank you Honorable Chair and the Commission.

YASMINE SOOKA: : Thank you. Questions?
HEARING ADJOURNS
ON RESUMPTION ON 29 OCTOBER 1997 - DAY 3

YASMINE SOOKA: : Sit down! Could I ask you to state your full names for the recordsplease?

KLAUS PETER CONSTANTIN OTTO VON LIERES UND WILKE: (sworn states)

YASMINE SOOKA: : Mr Von Lieres, we would like to welcome you to this hearing of the Commission today, we appreciate the fact that you have taken time to be part of this hearing. You can proceed.