Special Hearings — Legal Hearings — 1997-10-27

YASMINE SOOKA: Thank you Mr Browde. I'm going to ask Mr Vally if he has any questions to ask the members of your panel. I have been told by your colleague that you have in fact to leave to attend a trial but before you go I think that I'd like to express on behalf of the Commission our thanks for the frank account of both the memorable moments and the ones that you regret that have taken place. But as we said in our leaflet to you it is not our duty to judge but rather to learn from the mistakes that have been made in the past to ensure that they don't actually happen in the future.

JULES BROWDE: : Thank you very much Madam Chair.

MR WALLACE: Madam Chair before Mr Vally asks his questions and I've been deputed on behalf of the GCB to answer the questions as best I can, there is one aspect which Mr Browde did not deal with which I would like to deal with and that relates to our submissions concerning the death penalty which I touched on last night as a member of the panel. But perhaps as the attendance is greater and attention is greater at this moment I would like to say this again.
 In certain public statements and I understand again in public statements made yesterday by Mr Hernus Kriel, the premier of the Western Cape it was sought to invoke the submissions of the General Council of Bar to this Commission on the question of the death penalty in support of the reintroduction of the death penalty. I wish to make it clear as emphatically and unambiguously as I can that there is absolutely no basis for taking our submissions to this Commission as in any way constituting a call for the reintroduction of the death penalty in South Africa. That is a complete misreading of what we have said. We entirely support and accept the judgement of the Constitutional Court in the case of the State versus Makwenyane which held and declared that the death penalty in South Africa is unconstitutional. We have no doubt that that judgement is correct and we in no way seek by our submissions to bring about it's reversal through legislative process and the necessary amendment of the Constitution. Thank you Madam Chair.

YASMINE SOOKA: Thank you Mr Wallace. Before we pass over I had in fact been remiss of the other, your other colleagues wanting to add anything to the submission?

JULES BROWDE: : No Madam Chairperson we've perhaps trespassed on everybody's patience sufficiently. But I am very grateful that we have had today present the support of my successor as the chairman, Peter Hodes SC from Cape Town, Mr Gilbert Marcus SC, who was one of those fundamentally involved in preparing our representations and George Bizos SC, a very senior and leading member of the bar.

CHAIRPERSON: Thank you. Hanif?

MR VALLY: : Thank you Madam Chair. Are you going to be fielding the questions on your own Mr Wallace?

MR WALLACE: If I get desperate I'll shout for help.

MR VALLY: : Well let's start with the fact that you are representing by unanimous approval all the bar councils in South Africa and the GCB has been given that authority to do so. The first issue I want to raise is this, we know from your own submission that initially the Johannesburg bar council did not allow black membership and it was one of the first bar councils to allow black membership but, when it, at it's inception it did not. This is from your own submission, up to 1980 the Pretoria bar council did not allow black membership. We know even in submission from deputy president of the constitutional court, Pius Langa they had problems in the KwaZulu Natal council when he first joined the bar council. At that stage his predecessors had to look for chambers elsewhere other than the bar council itself. And by the time he arrived there was an annual permit which had to be obtained to allow him to practice from the chambers. Now I'm raising this issue because, and it's been quoted so often but let's repeat it, our present chief justice had to for 17 years, what's it 12 years operate from various places in chambers. He wasn't allowed to have an office in his chambers down the road here. And then for 17 years he wasn't allowed to use the common room at the bar council. Now this is the, the culture, this is the laws, these are the laws that the bar councils and the GCB operated under this is how you treated your own, sure the government was enforcing certain laws. More so in regard to the Jo'burg bar council and the Pretoria bar council which voted against admission of black people. Indeed a two-thirds majority up to 1980. These are the ranks from which our judges were chosen. Surely the culture which existed amongst the advocates at the time pervaded the culture which was adopted and reinforced by the judges of the supreme court?

MR WALLACE: If you'll forgive me quoting Judge Cameron to Chief Justice Mohamed, you're perhaps even more of a master of the leading question Mr Vally unfortunately it's a leading question based on incorrect statements of fact and if I can clarify those statements of fact.
 Firstly the only bars that we are aware of that ever enforced a colour bar as far as membership is concerned were the Pretoria bar, the Free State bar and the Johannesburg bar, at the time it was attached to Pretoria. By the time the General Council of the Bar was formed in 1946, no bar other than Pretoria and the Free State had a colour bar. No person was ever refused membership of any bars other than the cases of Pretoria which we have dealt with, the membership of any bar on the grounds of colour. 
 In regard to the occupation of chambers we have dealt in some considerable detail in our submissions with the position from 1956 onwards when the late Duma Nokwe became admitted as an advocate and a member of the Johannesburg bar and the endeavours which were made year-in, year-out by that bar, by the Natal bar and by the General Council of bars to secure a basis upon which they could occupy chambers together with their colleagues. The record is absolutely, unequivocal as far as that is concerned. The only legal way in which that could have been achieved at the time was by obtaining group areas permits. You are aware of that, the members of the commission are aware of that and I suspect every person present here today is aware of that. If you wish to condemn the bars because they sought to follow the only legal route open to them well then that is a prerogative of yours. I would suggest that that was the only thing that could be done and the record shows that it was done.
 In regard to the culture of racism which you talk about I make no apology and I don't think the Johannesburg bar council makes any apology for it's exclusion of Justice Mohamed from it's membership, from membership of the common room. It did so unequivocally because of the provisions of the Group Areas Act. I think it would probably regard itself as ...(intervention)

CHAIRPERSON: Sorry could I have order please. I think that this is an opportunity to allow people to respond quite freely and I would ask that you respect the right of the people who are actually answering and making their submissions to do so, so if we could please allow the person to continue.