Special Hearings — Legal Hearings — 1997-10-27

MR JAYCHAN: Chairperson I intend to canvas two points essentially. The first being one that was identified yesterday by professor Bongani Monchola and he touched upon it but I would like to amplify the notion of the future role of NGO's.
 The role of NGO's especially those with an established record of human rights monitoring, human rights education and delivery of human rights services to the indigent person must not be relegated in our emerging democracy. Now that we have a bill of rights and a constitution in place civil society must not be complacent and believe that we arrived in the Promised Land. The duty to translate these paper rights into real rights rests largely on NGO's. They are best equipped as demonstrated by their prior record in the Apartheid days to deal with these issues. They must maintain their vigilant attitude and where possible address and correct the iniquities that result. 
 The various state sponsored institutions - this is relating to human rights, now appear to ignore the role of human rights NGO's and prefer to aggregate the monitoring, education and delivery of human rights services to themselves exclusively. Rather than reinventing the wheel in this respect consultation with human rights NGO's would be more healthy for our emerging democracy. The degree of distance the administering institution have from the state will be more reassuring to civil society. Especially since the state pays their salaries. Rather the state sponsored institutions should seek out the NGO's with a view to entering into consultations with them on a range of common issues. Where possible they should tender out work to them or enter into joint ventures where the beneficiaries would be civil society. 
 Instead of being co-opted by the state sponsored institution the NGO's should never seed their right to be critical of government or governmental institutions. It is this right that creates consternation in government and governmental institutions. As a result there is an ambivalence in their treatment of non-governmental organisations. Governmental institutions are bureaucratic juggernauts that move with deliberate speed and cannot deliver a desired result as quickly as an NGO can. While they recognise this they're reluctant to enter into any arrangement with NGO's for fear of losing credit for the work done or any other similar fear. The net effect is that civil society looses out. This is an area of institutional change which the present government at this stage can claim little success. 
 I also want to hearken onto another particular matter which was raised yesterday and this is essentially a call for a special focus on the disparities that exist between historically black universities and historically white universities. I do so in my capacity as being a law teacher for some eleven years standing and a former dean of an historically black university. 
 The various submissions that have identified the areas of concern so far have stressed various aspects of the Apartheid legal system. But one area that has not been stressed is even in the presentation with regard to legal education yesterday, was the disparity between the historically black law schools and their white counterparts. The separate education ideology created at first caricatures of historically white law schools and staffed it with legal hacks, Afrikaner academics or retired government officials with obvious sympathies. I use the word caricature advisedly. They bore a vague resemblance but they never were a replica of the real thing. They have come a long way since.
 Professors Hugh Corder and Dennis Davis in their critique "Law and Social practice in 1988" analysed the juris prudential morals and debates within the South African legal system. And not a single academic from an historically black law school is mentioned. Could we conclude that in 1988 they contributed nothing to these morals or debates? If the answer is yes it is a severe indictment on our legal education system. 
 The disparities that exist between historically black law schools and their white counterparts is very vast in basic resources such as books and qualified and effective teachers. The product of these law schools were and some are deprived of any education in human rights or constitution laws. The legal profession treatment of graduates from historically black universities has been shabby to say the least. They were regarded as second class lawyers from second class institutions. As a result articles of clerkship or other jobs were hard to come by. 
 If we do not intend addressing these disparities then we may be guilty of perpetuating the ills of the separate education system. There are however choices in the decisions we make. Since there are some more than 21 law schools attached to universities and this excludes a number of campuses which exceed that number, the question to ask is are all of them viable institutions that provide good legal education. Especially since their lot has not been altered with a change in government. 
 Perhaps an assessment of the effectiveness of these universities needs to be made and some HBU's could effectively amalgamate with historically white universities with a view to creating more effective institutions. If all these institutions are to be retained then apart from their lack of resources in other areas they may be a duty upon the state to set up at least a chair in human rights law at each such institution it retains. 
 An inadequately trained lawyer may in time become an adequate one but at the expense of the unsuspecting public. Keeping in mind the low confidence the general public has in the legal system and in lawyers is this not a necessary change that we should be focusing upon? Mr Vincent Sandana of NADEL warned yesterday of this when he alluded to the imbalance between the HBU's and the HWU's. While Professor McQoid may have seemed to refer to some of these difficulties encountered by the law faculties I believe that a proper study needs to be undertaken to redress these imbalances in these particular law faculties. I thank you for your patience.

CHAIRPERSON: Thank you Mr Jaychan. Questions Hanif? Here while you're catching your breath Wynand will?

UNKNOWN: : You referred in your address to the state not sort of hogging for itself human rights work activities but to sort of farm it out and get and stimulate and keep civil society going, is there not a conundrum in such a statement? Then if civil society NGO's become dependent on the state are they really part of civil society still?

MR JAYCHAN: : NGO's should never sacrifice their independence. We are talking about a collaboration not a cooption. And that is the essential difference and I think NGO's know that difference. We will not sacrifice our right to be critical when we in fact undertake that exercise.

UNKNOWN: : I'm really thinking of the past and where I come from. I'm not sure that, that is really possible. So that's my question. Are you confident that it is possible?

MR JAYCHAN: : I'm confident that with a properly democratic society it certainly is possible.