Special Hearings — Legal Hearings — 1997-10-27

MR WALLACE: I think there are three points you've raised. Let me deal with them very quickly. It is a sad thing that the position in the profession was such that people felt it necessary to go off and form separate bodies. It's an even sadder thing to read the minutes of the individual societies in the general council of the bar and to see that they did so without in fact coming to the professional bodies of which they all were and are and remain members to raise those concerns and ask that they be addressed. That is factually the position.
 The second thing in regard to judicial appointments. You may not be aware of the fact that we wrote to the Judicial Service Commission when it was first established under the chairmanship of my predecessor, Wim Trengove who serves on the Judicial Service Commission and we made the point that we do not say that the bench should be the exclusive preserve of the senior bar. We entirely accept that there are people outside the ranks of the senior bar who may be well suited for appointment to the bench. In the case of all concerned we believe that they should have demonstrated their suitability by way of having undertaken an acting appointment on the bench and shown publicly that they can do the job. We remain of the view however that in a court system, such as South Africa's, practice at the bar on a daily basis in the courts, appearing there in matters across the board for clients on both sides of the spectrum; for the state, against the state; for the trade union, for management, as the case may be, actually, peculiarly does nurture the qualities of independence of mind, of professional expertise, of legal skill, of judgement, of the ability to deal with a court case in court and so we believe that the bar will continue to be, as indeed the evidence shows it has been, the first port of call as it were in seeking suitable bench appointments. 
 In regard to the third matter. There are a number of difficulties, not least of which is in attracting people to come to a profession and knock around the magistrates court when very substantial packages and so on are on offer to them in the commercial world and in the field of government. The one thing we have done in the past couple of years with the support and funding of the overseas development agency of the British government a project backed by and given the blessing of the Minister of Justice, we established with our colleagues of the English bar an advocacy training programme which operates and which in fact is compulsory for every person who goes through pupillage to try and assist particularly in raising the level of skills of those who come from an educationally disadvantaged background. That is up and running. It applies at every single bar in South Africa and it is a programme that is in a constant process of being extended and developed. That's simply one example of one of the endeavours which is being made in that regard.

CHAIRPERSON: Mr Wallace I wonder if I might follow up that question. You see at paragraph 136 on page 208 of your submission you say
"The sixth lesson is in our view that the organised profession like the courts must be made more representative of the population they serve. This is not to say that the administration of justice would best be served by an application of quotas or crass preferment on grounds of race and gender alone."
And of course you go on to say that strenuous endeavours must continue to be made to enhance the progress of more black and women lawyers.
 I think the difficulty though is that if we talk about more representative then you're talking of a lot more people, a lot more black people who need to be placed at the judiciary and of course at the magistracy and other levels where justice is administered. And the difficulty is that people will not perhaps be so well-qualified or so well-trained as you say because they haven't had that opportunity. 
 Now how does one address that kind of issue whereby necessity to get that kind of reflection, that experience of the black majority you would need to put in people who would not have had the same opportunities as perhaps white practitioners, how do you overcome that contradiction?

MR WALLACE: I think we're in very much the position which the Minister of Justice spoke of yesterday afternoon and in fact I don't think anything we say here is any different from what the Minister of Justice said to you yesterday afternoon where he himself rejected the application of quotas you will recall, and also said that it was painfully difficult to achieve that situation in South Africa. It is going to be a difficult and if we are honest with ourselves, never as quick a process as we would like to achieve the balance we seek.
 The bar is at present particularly hard hit in that the people we are trying to encourage to come to the bar are the very people who are, I'm not sure whether it's in danger for their talents but, more in demand for their talents, that those who do have skills have so many offers available to them, very often at handsome remuneration and on very desirable financial terms which frankly the bar is not in a position to offer. Because as you know we practice everybody on their own. We have no partnerships, we have no sponsorship and so on. So we're looking at a scheme. We have already instituted and have for some years a bursary scheme funded by the bar. We're looking at ways of expanding that. It's going to be a very long, hard road to overcome the problems and for me to suggest that I've got an overnight solution that could solve the problem in the next six months, the answer is simply no. 
 Quite frankly if you took every single person of colour and every single woman with a legal qualification in South Africa and you put them on the bench and in the magistracy and in the department of justice you still wouldn't be anywhere near solving the problem. It's a huge problem and it's, I don't have a simple solution. We're trying to do what we can. We're in discussion with others as to how we can improve that. 
 If anybody has suggestions I'd be delighted to receive them. Before the last annual general meeting of the general council of the bar. I actually wrote to particular people asking for those suggestions and regrettably again the rhetoric of transformation was present but the practical suggestions were completely absent. If people have them our telephones are there. Our E-mail is there. You can post us a letter or send us a fax. We will welcome any suggestions that could help address the problem.

CHAIRPERSON: Thank you Mr Wallace. Thank you very much to you and your team. I think the Commission appreciates the frankness and the openness with which you addressed your submission. Of course it's not the end of the road for us because you've raised a number of issues in a very detailed and lengthy submission and the Commission will be addressing you on issues that it would need clarification on, as well as the questions that will be raised obviously by other sectors of the profession in regard to your submission.
 But we would like to thank you for coming here today and for taking responsibility for what did happen in the past. We're very grateful for the closure and of course the suggestions you make about what should happen in the future.  We do have the family of Mr Braam Fisher present here and I think it was important for them to hear the explanation for why Braam Fisher was treated in the way that he was, and we're going to ask them as well to just talk a little bit about their own experiences of what did happen. Thank you very much for coming.