Special Hearings — Legal Hearings — 1997-10-27

MR HUSSEIN: Fellow Commissioners and Minister of Justice, friends, ladies and gentlemen, colleagues, I've been suitably intimidated by the Chairperson to give you anything but the briefest of precis of the section which I have to deal with and so I will proceed to be very, very quick.
 Firstly, on page 3, Mr Chairperson, we deal with the legislative framework and executive implementation around the construction and maintenance of apartheid. We have listed all of the Acts and their consequences on page 3. It is apparent that there were dozens of Acts, a plethora of legislation backed by executive decision which the State used for its dehumanising of people and for it's destructive social engineering. 
 The powers provided in these statutes were used to the full by the authorities in vigorously implementing the government's objectives. Under the Pass laws which were repealed only in 1986 an estimated 12 million blacks were arrested between 1948 and 1985. By the end of 1975 only approximately 1600 white families had been moved from their homes and resettled in group areas compared with 58 900 coloured families and 30 700 Indian families.
An estimated 3.5 million South Africans were subjected to forced removals between 1960 and 1982 under the myriad of laws constructed for this purpose. 
 The contribution in response of lawyers - Mr Chair, when we look at this I think the context is properly provided by having regard to what Sir Seedat Ramphal, QC the former Secretary General of the Commonwealth remarked, and this is not in your submission. He said - 
"The law itself may be flawed from time to time everywhere it will be but for so long as lawyers worship at the altar of justice there is hope for social redemption. It is when as lawyers we become ritual votaries of the legal order that justice is endangered and we ourselves cease to be worthy of society's esteem. We simply cannot opt out making a sterile professionalism a masquerade for inertia".
 Most of the legal practitioners, members of the Judiciary in South Africa did not make justice their altar during the dark days of apartheid, rather they sought refuge in unbridled positivism proclaiming that it is not part of the lawyer's duty to reform the law in order to make it accord with justice but that such reform is a matter for the duly constituted political authority. The fact that such political authority was constituted in an illegitimate, undemocratic and racist manner made no difference to their beliefs. And Mr Chair, this is an important issue, this question of positivism. Lawyers have argued, will continue to argue and argue today, we were simply there at the time to administer the law, we couldn't make it, now, that is a noble concept provided that the organ making the law is a democratic one, that your parliament is democratic, when that is not so, and when you have a parliament which is merely a chamber for legitimising oppression then you do not have a proper parliament, you do not have a proper law. So to argue as the positivists do, that we were simply there to apply the law is taking cosy refuge in this positivism and I submit a refuge which they are not entitled to and this will underpin a lot of our submissions to come. 
 The development and practice of law in South Africa occurred in a dichotomous way, laws which denied the majority of the people basic human rights, which demonised communities and which were the mortar and brick of one of the most repressive systems witnessed in modern times were by and large not attacked with the necessary vigour by South African lawyers.
 On the other hand South African lawyers excelled in the formulation and application of other branches of the law which did not have a direct bearing on human rights such as Company Law, delict, the Law of Contracts, Property Law etc. They argued that they were professionals who were there to apply the law, they were not there to challenge the laws that were made. An excuse was found for their inertia in sterile professionalism as Sir Ramphal puts it, worse still, as we will indicate in the course of our submission, there was a significant number which went beyond giving a spurious air of respectability to the South African legal system by actively defending it even in its most inhumane manifestations to the hilt.
 Relatively few lawyers made themselves available to represent or advise the victims of state action. It was only from the late 1970's when there was a network of NGO's and public interest institutions with a committed core of paralegals, community activists and lawyers that the unprofitable area of defending people against the unjust laws of the past was actually given attention.
 In the rural areas lawyers were scarce and that is where apartheid had it's most severe impact. The need for legal assistance at the time was enormous. The late Oliver Tambo's description of the daily scene at the offices of Mandela and Tambo in the early 1950's tell the story.  I quote:
"To reach our desks each morning Nelson and I ran the gauntlet of patient queues of people overflowing from the chairs in the waiting room into the corridors. Weekly we interviewed the delegations of grizzled weather-worn peasants from the countryside who came to tell us how many generations their families had worked a little piece of land from which they were now being ejected. Our buff office files carried thousands of similar stories from the towns and if and when we started our law partnership, we had not been rebels against South African apartheid, our experiences in our offices would have remedied the deficiency."
 The consequences of this neglect by lawyers of their obligations were far-reaching. John Jackson has observed -
"If every white lawyer was required to spend one hour in the so-called Bantu Commissioners Court every Monday he could not fail to change his view of South African justice. Unfortunately very few would agree to represent a black in these Courts especially since there is little chance of being paid. Most attorneys are far happier pretending that such courts and such proceedings do not exist."
 We quote further on in that submission also from John Jackson which I will omit - the centrality of legal measures meant that lawyers, prosecutors, magistrates and judges were key role players in the apartheid system. Millions of individuals criminally prosecuted for contravention of apartheid laws came before the courts. 
 Countless victims of government action under these laws sought the protection of the courts, to little avail. Magistrates in particular performed a range of functions in both their administrative and their judicial capacities. Their systematic in unquestioning implementation of apartheid measures leaves no question in one's mind that they were willing partners of the government. When one looks at judicial decisions, judges were inevitably called upon to review actions and decisions taken under the aforementioned legislation. In their review of the executive implementation of the apartheid project, the record of our Supreme Court judges leaves a great deal to be desired.
 Whilst there is evidence, mostly in the first part of the 1950's and the latter half of the 1980's of judicial constraint of the authorities, the predominant picture is one of uncritical vindication of unrestrained executive and administrative power.
 In key cases of the 1950's before the enactment of the Separate Amenities Act, segregatory regulations implemented in a discriminatory manner were invalidated by the Appellate Division. However, by the end of that decade in which the Appellate Division twice refused to validate the government's unconstitutional disenfranchisement of so-called coloured South Africans, a court expanded by the appointment of five new judges displayed no inclination to compromise the apartheid project.
 Residential segregation was upheld in the 1959 decision in Cassiem, and the reference is in the footnote, and a year later the Appellate Division sanctioned separate amenities in courts themselves by upholding the conviction for contempt of a law clerk, the last Mr Godfrey Peche, for his refusal to stand at a separate table reserved for blacks while presenting a case in the magistrate's court. 
 Although the reservation of separate tables had not been effected in accordance with the Separate Amenities Act the court was prepared to assess the "reasonableness" of that reservation in the light of the import and ethos of that legislation. The fact, said the Chief Justice, that such action could have been taken is not entirely irrelevant. It shows that the distinction drawn by the provision of separate tables in this magistrate's court is of ...(indistinct) sanctioned by the legislature and makes it more difficult to attack the validity of the magistrate's order on the grounds of "unreasonableness".
 The case of Lock-out was an early landmark on the road of judicial acquiescence in the apartheid experiment. Validating a proclamation which divided the City of Durban into group areas, allocating the best areas to whites and leaving relocated Indians without suitable accommodation in the interim, the highest court took a wholly uncritical approach of the legislation which was to cause untold suffering for decades. 
 Holmes J held that - 
"The power to discriminate unreasonably while not expressly given in the act was clearly implied. Despite the absence of express authority in the Act, despite government assurances to parliament in introducing the legislation that it was not intended to apply unequally and in spite of the legally supportable alternative approach found in the judgment of the court a quo, the court including the Chief Justice, Steyn C J and Ogilvy Thompson JA who succeeded him took the view, and this is important to note, Mr Chairperson.
"The Group Areas Act represents a colossal social experiment in the long term policy. It necessarily involves the movement out of group areas of numbers of people throughout the country. Parliament must have envisaged that compulsory shifts of persons occupying certain areas would inevitably cause disruption and within the foreseeable future substantial inequalities.
Whether all of this will prove to be for common wheel of all of the inhabitants is not for the court to decide (a la positivism). The question before this Court is the purely legal one whether this piece of legislation impliedly authorises towards the attainment of its goal the more immediate and foreseeable discriminatory results complained of in this case, in my view for the reason given, it manifestly does. 
 The legacy of this decision it has been observed was two and half decades of dereliction of duty and we refer to what Prof Dyzenhaus said earlier this morning about dereliction of duty by the Courts which have invariably relied on the Lock-out case to reject challenges based on the unreasonable exercise of powers under the act or the absence of alternative accommodation. As in Lock-out there was no indication in these judgments that judges felt compelled against their inclination to sanction apartheid policy.
 We then go on to quote another Appellate Division case which confirmed Lock-out. Further down we then mention the case of Govender, where Judge Goldstone held that the magistrate's power to order ejectment following conviction in terms of Section 26 of the Act was a discretionary and not obligatory one. 
 So therefore, Mr Chairperson, there was in fact room for manoeuvre for judges within that repressive legislation, and depending on the commitments or otherwise of those judges they either found room to manoeuvre for the sake of Human Rights or found no room to manoeuvre.
 We quote thereafter what Judge Didcott mentioned in 1982 regarding the so-called Bantu Urban Areas Consolidation Act. I am running out of time so I will not quote that. 
 We deal thereafter with the Magopa case. This was a case where the Appellate Division afforded the greatest protection possible against drastic executive powers of removal, but unfortunately without any consequent relief for the Bakwena people who had vacated the land after the failure of their urgent application to the Supreme Court for an interdict restraining their threatened removal. The matter turned on the interpretation of the provision of the Black Administration Act in terms of which the removal order was issued. In particular the form of parliamentary resolution required to authorise a withdrawal of a community. Adopting an interpretation which offered the least available protection to a community under threat of removal in line with the decision almost ten years earlier of Seyawula, Van Dyk J dismissed the application in the Supreme Court and refused the applicant leave to appeal against his decision. The Bakwena tribe pursued their final legal option petitioning the Chief Justice for leave to appeal. 
 Whilst their petition was pending the Bakwena people were removed at gun-point from their land. Leave to appeal was granted three months later. By the time they had succeeded in their appeal the court effectively finding the removal ought to have been invalid and concluding the court should have granted them interim relief the land had been expropriated by the State.
 The Magopa case is one of the countless instances in which judicial restraint of executive powers was defeated by executive action or by immediate statutory changes to close the gaps in the law. 
 But also forcefully illustrated in this case is the judicial choice available in the interpretation of oppressive legislative provisions. The Appeal Court supported the interpretation which had been rejected with tragic consequences for thousands of people in two previous cases in the Supreme Court. Not only had Van Dyk J rejected this more protective interpretation but he had failed to accommodate the possibility of a different interpretation by refusing the applicant leave to appeal against his decision substantially delaying the applicant's access to justice.
 The observations made here by the role of the lawyers were even more strongly demonstrated in relation to the implementation of the security system which the State put into place which was designed to overcome resistance to the apartheid government. For the victims of this system legal relief was far more elusive with judges far less inclined to restrain an all powerful security machinery.
 Mr Chairperson, my colleague, Miss Michelle Norton will deal with the maintenance of state security and the legislative frameworks surrounding it.