Special Hearings — Legal Hearings — 1997-10-27

CHAIRPERSON: Here we come. Dali, thank you.

MR MPOFO: Thank you Honourable Chairperson.  Mine has now become an easier task because of the pressures of time. I had intended to give you a few examples of my own experiences which I will not do, to allay your fears, as a young law student, as an attorney, as an advocate presently, as a detainee, as an accused in various, in other words gaining various perspectives to our legal system such as it was.   I am quite sure that those stories would be of no value of particular to myself but would have been representative of what some of us as black lawyers have had to go through on either side of the legal system. As I have said I will not go into these stories.  Unfortunately, I will now go into, I think the depressing part has been quite long. Mine is simply to say that from all what has been said here, the aim is not simply to recount the history, that has been well documented and could have been done in other forums as well, but what are we about here, this is the Truth and Reconciliation Commission. In NADEL's submission these chilly stories and the gory details that have been revealed are simply used to take us to the next step which is Reconciliation, and nothing can be achieved in the area of Reconciliation if we do not ensure that never again in our country do these accounts have to be repeated; never again in our country would young people have to go through the chilling experiences some of us had to go through.   There are various issues that we would like the Commission to recommend to ensure that this kind of sordid history is not repeated but because of time I will only isolate one and that is dealt with in on page 55 of our submission. It deals with the composition of the bench, the representivity thereof. It is said there that it is somewhat ironic that with the advent of democratic government we have acquired a constitution incorporating a Bill of Rights and the unelected judiciary has become its guardian.   Many of the judges so compromised by their part in implementing apartheid are now vested with the power to shape these rights. It is essential that the people of South Africa should have confidence in the judiciary and in judges' commitment to promoting and upholding the values in our constitution. Ultimately, this is a confidence which will depend upon judicial performance but also extremely important is the transformation of the racial and gender profile of the bench. The openness of judicial offices to learning about cultures and conditions outside their own experience and their willingness to examine their own social attitudes and prejudices. Judicial independence is a crucial element of public confidence. Our legal system requires explicit and open debate of the concept of judicial independence which has in the past used to justify judicial passivity in matters of great importance.   I simply wish to pause to say that when we assailed the white male character of our bench, people thought we were just being petty or at least dismissed our remarks at petty. One has seen now, with the little changes that have happened with regard to representivity that those of us who practise in those courts can already see, although it is not enough, the difference that it has made to have black judges, women judges and people who are able at least to taint some of the homogenous background from which the past judges came from.   Those of us who, I can just pick up one issue, the issue of language. I have never appeared in a single criminal case where I have not had to correct an interpreter's interpretation of what an accused says, and those kinds of issues where the representivity of the officials who are in court counts so much and sometimes counts as to whether the person who will go to jail or not or in the past as to whether the person was going to hang or not, are not idle issues and are not petty issues, and if in the future no effort should be spared to make our bench to be representative. That would go a long way to assuage the pain and the feelings of those who were victims of what has been recounted here. And we ask for no more than the basic human right of being able to feel in our own country that every human being is regarded as another, all this might seem petty and obvious, but in a country such as ours where these were ignored, it is important to place on the record.  I wish to end, Honourable Chair, by reading from a excerpt from a poem by Pablo Neruda which shows what this simplistic notion of what is fundamental can mean. It goes like this, it's called the Great Tablecloth

CHAIRPERSON: Thank you very, very much. Now I don't know, you have some questions, Hanif, want's to put you through your paces.

MR VALLY: The first question I have to ask you is, if we were to find that the complaints that you've had about certain judges and magistrates were in fact valid, how do you propose that the Truth Commission should address those issues?

UNKNOWN: Honourable Chair, for those people who have suffered those violations would be made by documentation, recording and more importantly by acknowledgement of those violations. That is what we would ask for.

MR VALLY: Judge Cameron in his skimpy submission to us made some interesting points. The one point he makes is that all lawyers who participated in the legal system legitimated it. He says both lawyers who worked for the state as well as lawyers who considered themselves politically neutral and finally even lawyers who actively opposed the framework created by apartheid legitimated the legal system by participating in it. What is NADEL's comment on that?

UNKNOWN: Mr Chairperson the position of judicial officers and functionaries of the state is very different to the position of lawyers who were there as activists. Lawyers who were there as activists used the courts in a terrain of struggle, they used it to wage a war against apartheid. I don't think one can brand them and then tar and feather them with the same brush as you would judicial officers who were part of the structures of the state and part and parcel of the administration of those policies.  In it's broadest, in it's absolute broadest, I think one can say that every person, lawyer or not, that walked around in this fair land of ours and did not, on a daily basis, do something to oppose apartheid is guilty. But I think that is a very wide view to take and a very difficult one. I think at the end of the day one has to have a pragmatic differentiation between lawyers who were opposing apartheid and as a strategy used the courts for that opposition and prosecutors who were there implementing the Group Areas Act with all their might and vigour, judges who were there either by commission or omission implementing apartheid policies.

MR VALLY: To follow up on that again in the submission of Justice Cameron. If lawyers and judges were complicit under Apartheid in enforcing injustice and iniquity they have no less responsibility for doing so under the present system. It is true that formal apartheid has been abolished, but we still live in a society characterised by extreme disparities of wealth and power. Our social system is democratic and it's political institutions now are representatives but we live in a society still distinguished by extremes of dispossession."In view of the harsh criticisms of what happened under the Apartheid Regime, the point being made is we are still living in a system which there is no equity. What is your role as legal people in that new system, and as a legal organisation?