Special Hearings — Legal Hearings — 1997-10-27

YASMINE SOOKA: Thank you, Mr Bozalek. Hanif?

MR VALLY: Thank you, Madam Chair. Mr Bozalek, you mention that in your experience with working with magistrates you discovered some of them were members of the Broederbond.  Did your experience regarding Broederbond membership extend to the Bar when you worked with judges? Did you find any judges who were members of the Broederbond?

LEE BOZALEK: Well, all I know, Mr Vally is what I read in the press and I understand there was an incident when a judge appeared before the JSC some time ago and it turned out that he had been a member of the Broederbond, but had resigned before he ascended to the Bench, but beyond that I have no knowledge.

MR VALLY: Is your experiences of magistrates that there was complicity between magistrates and prosecutors and police in especially political matters?

LEE BOZALEK: Well, you know, in the nature of things one would never find, one would seldom find direct complicity between magistrates and the police. If it was taking place it was obviously not going to take place in front of your eyes.
 Priscilla Jana mentioned an incident where she found the magistrate talking to the police, but the conclusion which I have reached are really by way of inferential reasoning when you run a case and you see the evidence and you see which way the magistrate goes then you can draw a conclusion perhaps.  
 Certainly as far as the prosecutors and the police were concerned, in the nature of things they worked hand in glove and I think unfortunately prosecutors as I've said, lost their objectivity in that manner. It became a score board thing. They could get a conviction in a political trial then that was just number one prize.

MR VALLY: We are under a time pressure. Thank you, that's all from me.

LEE BOZALEK: Thank you.

YASMINE SOOKA: Richard?

MR LYSTER: Mr Bozalek, thank you very much for that very useful, comprehensive and articulate summary of your experiences as a defence practitioner during the 1980's in the Magistrate's Court. I think that your remarks and your experiences will echo the experiences of many people in this room and several on this panel who also practised law in the Magistrate's Court during that period.
 I would just like to add by way of anecdote that during 1986 in Durban at a time when there was an increase in the number of political trials, public violence trials, a circular was sent down from the Department of Justice in Pretoria directed at Magistrates and advising them that in cases where the outcome of a case depended on conflicting evidence between police witnesses and young Black offenders, the circular directed Magistrates wherever possible to accept the evidence of the police. I think this goes some way to bearing out what your experiences have been.
 So thank you very much again for your contribution (intervention).

LEE BOZALEK: Thank you. If I may just briefly respond to that. In fact, I think it was also in Durban where it was found that at around the same time the magistrates and I think also the prosecutors were being called into a room and were shown videos of atrocities, namely people who had been necklaced, people who had been the victim of violence and so on. As I understand the motivation was to sort of fire up the prosecutors and the magistrates and that was - that came to the attention of some higher authorities or it was publicised and the practice was stopped.

YASMINE SOOKA: I think it was raised in one of the submissions that was presented, I think by the Bar Council.

MR POTGIETER: Mr Bozalek, just while you're mentioning that, I mean, at the same time, about middle 80's in the CPD for example, in political matters the judiciary, in fact the late Mr Justice Baker, Peter Baker, issued certain guidelines in regard to sentencing which set out or somehow confirmed quite heavy sentences under public violence, things like school kids 12 months direct imprisonment that sort of stuff that we had, so it appears as if the magistracy did what they did, but there were guidelines that were coming from up higher in that particular era.

LEE BOZALEK: I'm unaware of that case. I think there was a bit of a tug and war between judges of one persuasion and judges of another persuasion.

YASMINE SOOKA: Thank you very much. Wynand?

UNKNOWN: Mr Bozalek, I have two questions. The one relates to really your paragraph one with the sub-paragraphs which is the question really of political bias representivity. The question in my mind is, does that not follow naturally where practitioners come from a part of the society, wielding the power and they would reflect that bias in wherever they would find themselves whether in profession or in church, so the one impact on the other and one - it would be more than what one could expect to expect of a person to have a different world view in a profession or in his religion than he would have in his politics. So the one - they are in cahoots by nature. They're one and the same thing.
 Now against that background the question on lessons that you say we've learnt and you recommend legal education the values and ideals and distance from the executive and a number of issues. My question there is whether that is structurally really different? Did we not have an apartheid constitution and were they not in so to speak trained in apartheid thinking, now we have a constitution which is a human rights based constitution with the Bill of Rights enshrined in it, would it not follow naturally that that would become the practice of the day and in order to get the representivity in the Bar and the Bench and Magistrates and this has been said earlier, but should there not be even a more vigorous and rigorous drive to get representivity reflected at the level of practitioners at the Bench referring really to what the Minister said yesterday? I'm not sure whether you were here.

LEE BOZALEK: Well, I've mentioned it in my submission. You know I'm clearly of the view that there has to be a far more representative magistracy, judiciary and so on. I don't think it follows necessarily from that that everything is then hunky-dory. The fact that one has a Bill of Rights doesn't necessarily mean it's panacea for all evil.
 Just coming back to what you said. I might perhaps take a more idealistic view of human nature than you do, with respect.

UNKNOWN: No offence.

LEE BOZALEK: Certainly a lot of the problems relate to the fact that there was this structural imbalance. It was a White minority which was sitting in judgement in its own interest so to speak, but experience has shown that there were people who came from the same groups and so on who were able to rise above those sort of considerations and give judgements which were more impartial, more courageous and so on and I think that, you know, human nature being what it is there's always a reason why one can slip into retrogressive ways. So I think that one needs to have a widespread human rights culture and training and so on, because I think even in the most ideal structures abuses can come up and can become the accepted wisdom and so on.
 So, yes, it is structural to a large extent, but you know, I think that one has to be vigilant and prepared to try and create and nurture these values. I don't think they come automatically. There are different temptations.

UNKNOWN: Thank you.

YASMINE SOOKA: Thank you. Thank you, Mr Bozalek for the submission. It was very useful for us.

LEE BOZALEK: Thank you, that's my pleasure.