Special Hearings — Legal Hearings — 1997-10-27

MR WALLACE: Well it's always rather pleasant Madam Chair after all in 23 years of legal practice I don't often get the judges to laugh at me so it's nice to get an audience that can do that.
 If I may continue? I don't believe that the Johannesburg bar is proud of in any way it's treatment of Justice Mohamed, it's exclusion of him from the common room, and as I recall that at the very dinner which was quoted by Jules Browde, a speech was delivered by Jules Browde on behalf of the bar council, in fact apologising for that to Judge Mohamed, and he has accepted that apology. 
 At other bars in the Cape where there was sought to be discrimination in the courts against the late Ben Kies, the bar boycotted the facilities of the court in protest against that enforced discrimination. 
 At my own bar in Natal Judge Mall was a member and was in fact a person who occupied chambers under a permit. He played a full life, a full role in the bar council's life. He was elected to the bar council in the late 50's, defeating I think Judge Shearer for election. He remained a full member of the bar council even though he was banned. Endeavours were made to ameliorate his banning order. At the time Judge Langa writes he does not in fact write, I'm afraid if you read his submission that he was in any way ill-treated by the Natal bar, in fact he commends it. He refers to the fact that two of his predecessors, Justice Shabalala and Mr Lewis Skweyiya, who became the first black person in South Africa to take silk, at a time when I was on the bar council in Natal were apparently not allowed to serve pupillage. I have not been able to clarify those circumstances from the record but it is there before you in Judge Langa's submissions.  
 The fact of the matter again is that pupillage was made compulsory in South Africa for all advocates with effect from the 1st February 1973. Prior to that it had been voluntary and there is, not only no record of anybody being refused pupillage, I can say unequivocally that nobody has been refused pupillage at any bar in South Africa since then.
 In regard to these incidents where they took place they're unacceptable. No one adopts them now. I believe that if one looks at them against the overall picture what you're suggesting is unjustified. If you want to know whether white judges who went onto the bench had, across the spectrum, the range of view which white people in South Africa entertained, I wouldn't have thought it was necessary to ask me that question. The answer is rather too self-evident.

UNKNOWN: Madam Chair.

CHAIRPERSON: Thank you Mr ...

UNKNOWN: Because of the error of Mr Vally about the treatment by the Johannesburg bar of Mohamed C.J. as he now is I'd like to do the unusual thing, I have George Bizos here who lived through that entire period to tell you what the correct situation is.

CHAIRPERSON: Thank you Mr Hodes.

MR VALLY: : Madam Chair I think we can get that on record at some point I don't know if any purpose is served now. But if you, I don't mind you ruling. I don't accept that there was an error. 17 years he wasn't allowed into the common room. That is the fact he stated himself. But if Mr Bizos wants to ...(intervention)

CHAIRPERSON: Well Mr Vally I think that Mr Bizos is entitled to respond to the question.

GEORGE BIZOS: Madam Chair thank you for the opportunity. The question of the common room in particular goes back to 1956 when Duma Nokwe became the first African member of the bar ever in South Africa. The, his exclusion from the common room was not as a result of a decision of the bar council and it was a bar council which consisted of Izzie Maisels, WG Trollip, Braam Fisher and others.
 A very small minority had given notice when it lost the struggle for the admission of Nokwe as a member of the bar, that if he exercised his right to enter the common room they would file a complaint with the group areas board in order that he should not be allowed to share chambers with a member of the bar that he was sharing at the time. Unhappily the onus on that was put on Duma Nokwe himself who felt very hurt about it. He was a leading member of the African Nationalist Congress and came back and said that he had discussed it with the leadership and as unhappy as he was, he was forced to make a decision with the concurrence of his political colleagues that the compromise ought to be made because it was important to break the colour bar in relation to the admission of people at the Johannesburg bar, the factor even though the constitution provided for it a long time ago. 
 I am not trying to justify what happened to Duma Nokwe in relation to the common room, nor am I trying to justify what Ishmael Mohamed inherited when he came two years later which he had to unhappily follow. But I'm glad to have had an opportunity of placing that bit of information before you, because I have mentioned three or four names of the people on the bar council at the time and there were others that I could mention that would never have been a party of resolving to exclude anyone from any of the facilities that were available at the bar. Thank you Madam Chair.

CHAIRPERSON: Thank you Mr Bizos. Hanif before you go again Dumisa.

MR NTSEBEZA: Thank you Madam Chair. Mr Wallace mentioned the question of pupillage and it reminded me of yet another member of the Johannesburg bar about whom I would like to get some comments from you and I refer to Advocate Sobando Mlonzi, who as you know was admitted to the bar in the 1960's. He suffered all the ignominies and I think much worse than Mohamed did suffer. Because I remember in 1976 when he went into exile he was still having to do legal work from the library. He couldn't occupy chambers. But when he returned, and I'm just talking now about pupillage, when he returned having also written exams in Canada and Alberta and wherever and having been therefore in practice he was required to do pupillage and to write an examination. He had left before as an advocate, not having had to write an examination but when he returned he was required to write an examination. Can you explain how the rules work in that regard?

MR WALLACE: Well I'm not a member of the Johannesburg bar. Mr Marcus is here and he says simply that's factually incorrect. And without having the opportunity to go away and check the record, and I'm very happy to do so and find out why if he was required to do so, that was the situation. But the position is that as a member of the Johannesburg bar in good-standing and he was in fact - only last night we were being told by Jules Browde of how he used Jules' chambers whilst he was a member of the Johannesburg bar, the position is that as a member of the Johannesburg bar he was not required to do pupillage. Pupillage was required only for people who joined the bar and he would not have been required to do the bar examination which was only introduced in 1980. And the suggestion that he was required to do pupillage I find quite extraordinary in the circumstances. I'm happy to go and investigate it. Mr Marcus seems to think your information is incorrect.

MR NTSEBEZA: It's very strange that the information the Truth Commission has today is very inaccurate, first it was Vally, now it is myself. Maybe Mr Marcus will place the matter on record. I know it because in the Black Lawyers Association we had to deal with it. Sobando Mlonzi was required to write an examination by the Johannesburg bar in spite of the fact that he had been an admitted advocate before he left the country and had been in practice throughout.

MR WALLACE: Mr Ntsebeza would you mind giving me that date again?

MR NTSEBEZA: : What date?

MR WALLACE: The date when you say this occurred.

MR NTSEBEZA: : I think it was in 1993.

MR WALLACE: 1993?

MR NTSEBEZA: : Yes. When he returned from exile.