Human Rights Violation Hearings — Durban — 1996-05-09

DR BORAINE: 15A/7 little village far away with no light, water and put into a form of banishment.  He acted for one of the people who were brutally killed in Umtata.  And it's that background that I think all the lawyers came from who defended political activists and for us to say to the person - or a defence lawyer to say, "Look, I don't think this evidence is going to help you", or, "I don't think you should say this", or, "I think that we need to protect you by not calling you as a witness", strictly speaking, would be seen in an isolated manner in some remote island on earth that this is wrong as a lawyer.  You should not be involved in your own client's case and you should just say what your client wants to say and present the case and defend the person.  I think it does not work that way. When one is faced against a brutal, unjust regime one would do everything to assist victims to bring that regime down and if there was an apartheid legal system that was aiding and abetting that evil regime then the political opponents and the opposition lawyers, as one may call them, did their best to try to save many of these political prisoners or people who were detained - political trialists - from the gallows, from longer terms of imprisonment than they got and in those rare cases they may have even been able to get them acquitted and get them free, so it's like trying to take a bird out of a cage where the brutal regime put them in, and I think in that context I would say that the lawyers are coming into a future South Africa now, with having done that within the legal system as well, and I would hope that those lawyers now commit themselves to this new order and not say that, "Well, if we were able to do that then, that we should do  /so now",

DR BORAINE: 15A/8 so now", even if, for example, I would say an ANC activist today is charged for some violent activities in terms of this present regime, in terms of our new order, in terms of our new democracy, the duty of a lawyer today would be to say to that person, even if that lawyer is sympathetic to the ANC, "I'm sorry, we have a law, we have a Constitution.  We have truth and justice to uphold.  Now, if you are not going to obey the law of this land and if you're going to assault or even hurt somebody, I am sorry, you must speak the truth.  You must put an end to this and if you have to go to Court, you will have to explain your conduct in court".  The most a lawyer can do is plead in mitigation, and I would say that should be the kind of approach that I hope our new legal order would take and would take along with it all the lawyers - those who perpetrated and supported apartheid conduct and those who tried to resist it.

DR BORAINE: Thank you very much, Mr Govender.

CHAIRPERSON: Thank you.  In addition to what the Deputy Chair has said, one of the factors that we are asked to take into account is - would be recommendations about structures that would ensure that such violations will not recur and your submission is helpful in so far as it highlights one of the critical structures of a free and democratic society is the Judiciary and the judicial system and that we would be looking into things of that kind when we make our recommendations about the sorts of things that might, in fact, be considered in order to prevent a like occurrence of violations of human rights.  We hope, of course, that we would get people giving another perspective, because the Act requires that we

CHAIRPERSON: /would look

CHAIRPERSON: 15A/11 would look into patterns of human rights violations and to seek to understand the perspectives of the different role players and you have given one such.  We would hope that we would get a representative submission.  Thank you very much.

WITNESS:   Chairperson, may I just say something?

CHAIRPERSON: Yes.

WITNESS:   And I say this with great respect.  I think we should not apologise for hearing a point of view, but I also don't wish to even feel intimidated by another point of view of another political party.  There is only one approach to justice and morality.  There cannot be two sides to justice and morality, with great respect, and I do appeal to the Commission not to feel intimidated - not to even think that you have compromised yourself by hearing me today or a point of view, because I think history has recorded this kind of conduct in many parts of the world and I would be most interested and I would wait with bated breath to hear whether there can be another point of view for the role of people who upheld an unjust regime.  I understand the context in which you are placed in this particular province, but I say with great respect, we should never be afraid of the truth and I believe this is what this Truth and Reconciliation Commission is about and I do believe that, strongly - I just cannot believe that there could be some point of view that is on the other side.  The best that one can hear is that, "Well, there were factors that caused me or other people on the other side to take a different perspective", but certainly there cannot be another morality and another justice.  I am not saying that this is the one, but I do believe that the Commission will identify only one justice and one morality for this country, for Africa and for the world.   /Thank you.

CHAIRPERSON: 15A/13 Thank you.

CHAIRPERSON: Yes.  Order, please.  I didn't give you permission to clap.  But I would need to say that as a commission that is a commission of the nation, we need to hear from all sides and that is what I am underscoring, that each set of people have the right to put forward their point of view.  We have not yet indicated what our own point of view is.  It would be utterly counter-productive if we were out of hand to reject other points of view and this is what we are saying.  One of the problems about our country has been our - I mean, the intolerance - I mean even the intolerance of those who know that they are right.  That if we are right then we cannot be scared about rivals coming into the arena.  That was all I was saying.

WITNESS:   Thank you.  I appreciate it.

CHAIRPERSON: Thank you for your submission.  I've got to hear - I mean if the AWB wants to bring a submission we've got to accept that, because we are sitting to give or to have as broad and as accurate a picture of the history of this country's violations of human rights and your submission is a very, very useful contribution to that.  Thank you very much.

WITNESS:   Thank you.

CHAIRPERSON: We adjourn until 9 o'clock tomorrow.  Please stand as the witnesses and family come.
PROCEEDINGS ADJOURNED TO 1996/05/10
/PROCEEDINGS RESUMED