Special Hearings — Legal Hearings — 1997-10-27

UNKNOWN: Is the mike working yet? Thank you Commissioners and thank you for asking me to present the submission that I did make in writing with the assistance of a number of my colleagues from the Wits law faculty. The essence of that submission is, deals with the role of the judiciary during the apartheid era and I do not want to deal with the same matters again. A number of the points that were made in the submission were made during the proceedings yesterday and I don't think it's necessary to go through them.
 I do think however that no one can emphasise sufficiently the fact that everybody who was involved in the legal profession, the judiciary, magistrates, attorneys, advocates and academics were all complicit. We were all part of a system, sometimes for very good reason but, we all did play some role in upholding the framework of apartheid and therefore the framework that sustained gross violations of human rights. That role is not something that we can forget. 
 It has been said in a number of submissions that we ought to be looking forward not backward. And I think that, that is true but we can't look forward meaningfully unless we understand the errors of our past, unless we understand the evils that were perpetrated in the name of the law. 
 I want to turn in particular to the role of law schools in the apartheid years, not to deal with them in any detail because I understand that Professor McQuoid Mason, who is the president of the Society of Teachers of Law will be dealing with those issues. I want simply to highlight a few matters and to address them. 
 In his written submission to the Commission Judge Edwin Cameron pointed out that, and as I said earlier, that we were all part of the legal edifice of apartheid. What is true I think however is that academics played a greater role in the criticism of that edifice than did other legal professionals. And much was made in submissions yesterday of the very, very important role played by academics such as John Dugard and Tony Matthews in their criticism of the way in which courts were handling human rights matters, matters affecting security of the state and so on. Their attempts to keep the fundamental principles of fairness and of equity alive cannot be underestimated. And there were other people like them. But note that the critics of apartheid and the critics of the judiciary were, especially in the 60's, the 70's and certainly the early 80's concentrated at certain universities, Natal, Wits in particular.
 The black universities that had been formed as part of the system of separation of black and white people and the Afrikaans universities with some exceptions remained silent. There were certainly Afrikaans academics, Johan van der Vyver is one, who spoke out against violations of human rights but for the most part their silence was notable. And their silence is as culpable as that of any other member of the legal profession.
 It is true that more and more academics entered the battle against apartheid in the late 80's and in the early 90's, but the decades of ignoring the edifice of injustice within which we have all worked have had a marked effect. I was privileged to have studied under and worked with a person like John Dugard. I, and many of my colleagues knew that it was our duty to engage in the classroom and in legal journals in argument against the injustices constantly perpetrated around us. 
 Even in the sphere of private law, in the sphere of law affecting things like contracts and property there were gross injustices. It would be true to say that the whole of the law of property was permeated and poisoned by racial legislation. It is true also that in enforcing influx control and in enforcing the provisions of the Group Areas Act the courts had a marked effect on those areas of the law as well. It was possible to write about this to expose the injustices, to expose the effect in every area of the legal system of racial legislation and some people did so. Others claimed and continue to claim even now that they were involved in different areas of the law. That gross violations of human rights if they existed were not their concern, and that claim of course is untenable. 
 I want to turn away from the influence that academics attempted to have on the judiciary and on the profession generally and turn to the schools, the law faculties themselves, deal with student bodies. Here too the record varies very considerably. From the early 1960's, after the Extension of Universities Act even the open universities complied with the legislation that required them to exclude students of colour. In their defence I must say that they did so under protest, and that protest was sustained. As soon as it was possible in the early 80's to open the law schools to black students some law faculties, again notably Natal, Cape Town, Rhodes and Wits did so. The other universities maintained the colour or race barrier at least until the 1990's. Some have expressed their regret at this. They have expressed regret at their failure to speak out against injustices too. Others have maintained their silence. 
 As indicated in the written submission that I made to the Commission it is the extent of complicity in the apartheid edifice that still requires investigation and exposure. That it existed everywhere throughout the profession cannot be doubted. Universities, however, have been in the forefront of transformation, some of course more so than others. And the work that many of them now do, particularly in law clinics and in human rights programmes will to some extent make reparation. But it is up to academics now to remain vigilant to ensure that complacency does not set in simply because we have a democratic dispensation. 
 It is also up to academics to ensure and to participate in on-going education. The kinds of judicial education referred to yesterday. We have a duty not only to students but also to the profession as a whole and we have a duty to the broader community to ensure thorough and continued vigilance to prevent the injustices of the past being repeated. Thank you.

CHAIRPERSON: Thank you Miss Lewis. Hanif?

MR VALLY: : Professor Lewis would you concede that it was a tiny minority of academics in the legal profession who actually criticised what was happening?

UNKNOWN: It was a minority certainly. The size of the minority did grow. And I think perhaps that much is made of the direct confrontational role that certain academics played and some of the quieter acts of academics went unnoticed. Much of the writing I think in the law journals, much of the criticism of the courts did go unnoticed and some of what was done by academics was also perhaps too small to be significant but was, to some extent, just not known. But I, there is no doubt but that it was a minority of academics.

MR VALLY: : I ask this question because in the submissions to us some of the judges suggest that the decisions can be tested by academics and the media. And I submit that academics have in fact failed us in this era under apartheid and therefore the checks on the judiciary should not be left to academia only. What's your comment on that?