Special Hearings — Legal Hearings — 1997-10-27

MS SEROKE: You have expressed some disappointment at the non-appearance of judges at this hearing and that some of the submissions that have been presented by some of these judges who are not here and which gives us the feeling - makes you feel that perhaps their views and perceptions have not changed since we have been into this democratic process.
 Now what would you suggest would happen to such judges now that we are in this democratic era and we are trying to get through this transformation; would you think there should be some training for those judges or they should be asked to resign or if they remain then they should be trained through this process of democracy and so on?

PROF DYZENHAUS: I think that it would be very difficult in all sorts of ways to have a witch hunt for judges who might not be completely in tune with the new legal order and perhaps all one can do is to be vigilant and I think this is a role that academics can play perhaps more than most people in society as it seems that the judges are critised when they go wrong and I think that the judges in some of the submissions are much too sensitive to media criticism.
 If a judge gives a decision that's bad, then that judge should be critised and the judges should be prepared to take very strong criticism and if one is worried about what judges are going to be doing in the future, besides processes of just judicial education, judges might need more or less enthusiastic about, I think the only answer is constant vigilance.

YASMINE SOOKA: I'm struck by, Mr Dyzenhaus, by what you say about the fact that the judges should have been here themselves to discuss and answer some of these questions, but I think the problem even prevailing today, is where do you have these discussions, where judges interact with ordinary people, where in fact there is that room for critism and that room for the questions to be posed, because even now there is no real engagement as judges beyond the little group to which they belong, now how would you foresee that such interaction could take place, because I am struck by what some of the judges talk about themselves being part of the silent majority who gave respect to the law without commenting on unjust laws? But I think the point that one realises is that there were judges who commented but they were in the minority and what you really want to develop is a culture of speaking out, a culture of not being silent in the face of injustice.
 At the same time you want to being people closer to people on the ground, but there is no room in the present system for that to actually happen. How would you foresee that that could take place?

PROF DYZENHAUS: I see no reason why a process of legal education in the Human Rights culture, given resources and people willing to work on this would not include judges talking to just ordinary people, especially people who have a history of targetted pressure not that they were part of the vast majority of South Africans who were oppressed in virtue of their skin colour but in finding out what it is to suffer from the Human Rights violation, why should that not be part of the process of legal education?

MR LAX: Just one last follow up in relation to the question that Wynand asked you about the legal education issue in a sense and that is I am reminded of a discussion that I had with the late judge Milne around the issue of legal education and it may surprise people that he was very much in favour of judges having continuing legal education in a very broad sense, the one thing he mentioned and I thought I might raise it with you and sound you out on the issue is that the judges are all part of broad associations for example, the Commonwealth Judges Association and so on and you may be aware that there is a Commonwealth Colleagiate Judge experience in terms of which judges through the Commonwealth are brought together to discuss issues.  That for example is one way in which judges could experience the whole universal Human Rights culture in a much boarder sense, how would you see that kind of approach working?

PROF DYZENHAUS: I think that all such approaches are fruitful and it is not just in South Africa that people are now starting to debate on how to educate judges, in Canada this is a very hot issue and there is going acceptance of the need for judges to be involved in on-going legal education that takes place at an International level or in a Continental level all within their own country and I think the fact that judges are more receptive to this kind of education can go hand in hand with having more and more open appointment process. I think the two have to be tied together.

CHAIRPERSON: Thank you very much, I feel you have been very generous in your availablity.
 I just think that when we talk about the whole question of education that we might consider that it is something that ought to be informing our whole eudcational system. You see the South African system has generally exam orientated, you are told the answers that you have got to give rather than trying to encourage a questioning type of mind, I mean why? Why? Why this, why that? That if we were such an authoritarian set up that it was something that was imbued at school and you didn't get encouraged apart from a few exceptions, you were not encouraged to ask questions, you were prepared for providing the right answer and I can say when I went to Kings in London, it was an incredible breath of fresh are to find a Professor, and most of them would say that there was no one right answer, you had to find the one that you thought most satisfactorily gave an answer to the evidence that you had before you, whereas here at home, most times you were being prepared for docility, really. You were being trained for not rocking the boat, that was the highest sort of virtue and if we can get into our educational system, perhaps we could get the children and everybody saying "no, sorry, I am not going to accept that because you say so," it ought to have an interesting worth for acceptance and I think I mean that if we can get all of that, that kind of critical attitude in our Schools in our Universities then our judges are not going to see themselves as being strange animals.
 It is something that will be inbued in them so that they will so "No, no this is nonsense" and they say so and they are not scared of saying so because the whole community is used to that. Thank you.
 I think we should probably break for tea and if it is possible to have tea for 15 minutes and we try and can catch up. Thank you very much. 
HEARING ADJOURNS
ON RESUMPTION