Special Hearings — Legal Hearings — 1997-10-27

YASMINE SOOKA: Thank you Mr Phosa. Does your colleague want to address us as well?

JAKE MALOI: Madam Chair, I don't think there's anything to add at this moment in time. However, we do undertake to submit a full written submission in due course. Thank you.

YASMINE SOOKA: We would be grateful for that to have it in writing.

MR VALLY: Mr Phosa, what does the Black Lawyers Association do to prevent the abuse of human rights in our mandate period?

JUSTICE PHOSA: The abuse - to prevent it?

MR VALLY: That's right.

JUSTICE PHOSA: Oooh, there are so many things we did. Firstly, we as an Association and I think you are being a devil's advocate, we as an Association created fora where we were educating to our own membership the importance of human rights.
 In our magazine, The African Law Review, even the language, even the question of how to address one another as he or she, all those things that look so small were dealt with.
 Actually before we had the problems with finances, the Black lawyers - the Legal Education Centre and in particular the African Law Review is full of examples of what we did.
 A copy ...(tape ends)

JAKE MALOI: May I add, Madam Chair, that the BLA engaged itself extensively in also the housing problems in and around Gauteng Province in particular and also the removal of the farm labourers from farms. That was seen as a violation of human rights by the BLA.
 We had in our Legal Education Centre a constitutional litigation section which had a full time professional manning it for the purpose of addressing issues relating to human rights.

MR VALLY: Madam Chair, I understand we are under pressure of time. Maybe once we get the written submission from the BLA we can forward questions to them.

YASMINE SOOKA: Thank you. Questions from the ....

MR POTGIETER: Thank you, Chairperson. Can I just say, Adv Phosa that we note with some interest the point that you make that you have already - you are engaged with the Law Societies. You've given us the background in regard to that and that you have taken some steps to engage the Bar Councils which we think is a very positive thing and which is long overdue.
 We note that our colleague, Peter Hodes, is sitting here whose heading up the GCB and (mumbling in the background) - there you got it. So, it looks as if there'll be some good work that could be done along those lines. That's just a general observation.
 You've made a very, very important point here. You've raised a matter of concern and that relates to this insidious nature of an institutional culture and this thing about attitudes and how that affects people, particularly with regard to the situation around the judiciary. 
 You have raised the point that there are some expectations in regard to the post-1994 appointees, the expectations around that, but they're not part of this process as well. I don't know if you've got any thoughts at this stage about that, but we do have the reality of transition, that the majority of the judiciary come from the old order and most of the key positions are held by people who have been on the bench in that era, but for one or two notable exceptions.
 Of course there is some other phenomena that one can speculate and so on. We know that it is so that new converts are often more zealous than traditional members of a grouping, but have you got any thoughts around that?
 It seems to be a problem, because if people go in and they disappear and they're sucked up in the process, then we've got a problem, I mean. Then we are not getting anywhere.

JUSTICE PHOSA: Yes, sorry. Firstly, I wasn't going to deal with all the history of the situation before 1994, but you will -you may be aware that there was a conference called in Cape Town, suggesting - to suggest how the judiciary should be appointed. I made my suggestions then that a method that does not seek from the outset to ensure to get at least some commitment from the judge, even a pre-existing judge, that he or she, after admitting his previous conduct, like they like us to do, will then also indicate that he or she will change. If we don't do that, we don't have a basis at all. I don't know why it hasn't been done, because judges who wanted to become - to enter the constitutional court, are the ones chosen by the President, had to stand the test, had to be - to stand and queue up and prove themselves to what they should be. Many couldn't make it, because you know we had the last 25 people, but many others had applied. Many judges couldn't make it. I'm not saying the results were correct or fair, but the point is the process can be done, but the judges must assure us in the process. A process can be found where if a person has gone through at least said I did so and so surely he has to be very dense or very much of a wicked person to continue doing it. There ought to be a way found of doing that.
 But we also have been battling with the question of training of judges. We have had - BLA has had a little bit of difference here with the Minister, because we suggest in BLA unapologetically that whenever a little bit of money comes from overseas towards the training, towards the improvement of law it should merely be put to us getting more Black judges, because we think that the presence of other Black judges, the JSC will do some role in deciding who they are, but even without that, it would have said the presence of Black judges will help in association to improve the judiciary apart from appearance.
 The Minister says, look, it can't in spite of the constitution, it can't be seen to just pick up Black lawyers and then to train them. We have difficulty with that, but of course human beings differ. But we also say BLA and NADEL are now embarking on the means of getting assistance overseas. Now, the Minister has helped there, he took us out to try and get NGOs to help us with funds and means of training judges. In other words, we intend also to be involved in the training of judges and by training of judges we mean not just legal aspects, but finally within that the present judges as they are now, should go for a course on human rights. It is (indistinct) that it should be done. Any judge who says I know it well enough then fine he or she will lose nothing, can go on holiday and have it again. They should go through that.
 But just in passing, Adv Hodes is not being fair to me. I told him that we'd avoided that this morning to him because we're going to have an AGM and I was hoping that I'll be away so that to make sure - oh yes, it's true, your AGM was three weeks ago - to make sure that my colleague here can deal with it and not me.

YASMINE SOOKA: Thank you. Thank you for making the submission. We understand that we have placed you under pressure to make a written submission. It is quite important, because I think it can also be passed along so that other people who've made submissions can also respond to some of the issues raised, because I think the issues that have been raised are the ones that we're grappling with in the New South Africa. Thank you for coming.

JUSTICE PHOSA: Thank you very much.

YASMINE SOOKA: I'd now like to call Mr Lee Bozalek, please. Thank you, Mr Bozalek, are you going to be taking the ... (intervention).

LEE BOZALEK: (Duly sworn in, states).