Special Hearings — Legal Hearings — 1997-10-27

DULLAH OMAR: Thank you very much Archbishop Chairperson, Commission, Members of the Commission, Members of the Committee, I am very happy to submit myself firstly to the oath and secondly to the scrutiny of the Truth and Reconciliation Commission.  I believe that the Truth and Reconciliation Commission is a very important institution in South African society. Looked at historically, and in the context of the history of our country, as well as our hopes for the future, a great deal rests on the work of the Commission. The Commission is independent and I am certain that even if the Commission had asked the President to come along to testify, he would have done so.  My input Chairperson, Members of the Commission, will come as a kind of an anti-climax after the input by the representatives of the National Association of Democratic Lawyers. It comes as an anti-climax because with due respect, to you Sir, and everyone else, I think it would be appropriate for me to concentrate on the future rather than on the past. There have been submissions with regard to the past, they will be subjected to scrutiny, but it is also the task of the Commission in terms of Section 4H of the Act to make recommendations to the President with regard to the creation of institutions conducive to a stable and fair society and institutional administrative and legislative measures which should be taken or introduced in order to prevent the Commission of Violations of Human Rights.  Sir, we are three years into the new democracy and no people who have suffered as much as the people of South Africa will wait for the Commission to report before Government begins to institute those measures, legislative and otherwise, to begin to change the situation. And I think that we owe it to the Nation and we owe it to the Commission to give some indication of the kind of steps which government has taken and which are envisaged in an attempt to ensure that the human rights abuses and violations, about which much has been said will never again be repeated in our country, and I do so, Sir, because those steps and measures and intended measures must be subjected to scrutiny by yourselves as the Commission which has been entrusted with that responsibility. And therefore in everything I say I do not expect them to be accepted uncritically. I accept that they must be subjective to scrutiny and hopefully what I will say will make some contribution towards enabling you to make the kind of recommendations which are expected.  I must say though too that the Director General in the Department of Justice has made a submission with regard to the role of the Department of Justice in the past and he himself will be subjecting himself to scrutiny and will answer questions to the best of his ability when his opportunity arises for him to respond.   I have made a written submission which I have just handed in. I apologise for that late submission, Chairperson. I am not going to read that submission, what I will do is I have been a legal practitioner for about 30 years, Chairperson, and in my handling of cases I have always tried to read the mood of the court and therefore I shall not read my submission.  I would like to highlight a few aspects arising from the written submission which I have made. I think it is fair to say that arising from the various submissions which were made, even Parliament, during the apartheid years, was guilty of violations of human rights, and committed abuses through the decisions taken by Parliament and the legislation enacted by Parliament. And so the question is, what guarantee is there that Parliament itself will never again commit those abuses?   The same question can be asked about the executive, and I want to say that in response to that I am very happy to work within the framework of the new Constitutional dispensation. Immediately after the elections in 1994 the interim constitution became the constitutional framework of our land, and about two years later South Africa through a democratically elected body adopted a final constitution.  We spent a great deal of time, Chairperson, to ensure that the final constitution will entrench the notion of a constitutional state in our country, and therefore I would say that we have put into place the institutional framework within which Parliament and the executive will have to operate. Our new constitutional framework required even Parliament, the Executive and the President himself to observe the provisions of the constitution and the Bill of Rights. Any violation of that, by law or otherwise even if it is by a unanimous vote of Parliament may be set aside by the Constitutional Court. I make that point, Chairperson, because there were many things which were structurally wrong in the old order and therefore we need to put into place those structural mechanisms which will provide the basic guarantee, firstly, that violations of the kind that we have seen will never occur again or if they do occur they can be effectively dealt with. And so I want to say that we have put into place a constitutional framework of that kind.  There have been a number of criticisms over the past year or two with regard to that constitutional framework and our Bill of Rights. I am not going to deal with all those criticisms, they are made by many people, people who are victims of crime for example, make criticisms. The only point I want to make is that within that constitutional framework certain values have been entrenched and find expression in various provisions, and those values had been placed beyond the reach of transient majorities.  Sometimes in the short-term one may find a problem with regard to how those values are interpreted and how they find the expression but in the long run the entrenchment of those values and putting them beyond the reach of transient majorities will help to create the kind of human rights culture and respect for those values which we all so dearly want to see in our country. And I am saying that that helps us to ensure that not even Parliament or the Executive or the President himself, will abuse power in the way I know, I know the President himself, Chairperson, commented on a judgement of the Constitutional Court which affected him. He had taken a decision with regard to the composition of the Cabinet and the Constitutional Court held the action taken by the President to be unconstitutional. The President welcomed the decision of the Constitutional Court and said that he willingly abided by the decision of that Court.  That brings me to the second point in respect of our structural arrangement and that is the role of the Constitutional Court. Sir, for politicians I think the Constitutional Court is often an irritation, an inconvenience but it is absolutely liberating because it ensures that the kind of abuses which begin to rear their heads, or the kind of unconstitutional acts which begin to rear their heads are checked speedily so as to ensure first of all, that such abuses do not continue, but it certainly puts the Executive on its guard. It puts politicians on their guard, that there are certain values which are very important for our country and they need to work within the framework of those values.  The second aspect of our constitutional framework, that is the structural aspect, is that we have entrenched the notion of separation of powers within our Constitution, and I myself as Minister of Justice am very conscious of the need to ensure that we respect and adhere to that principle. That principle is very important especially insofar as the Judiciary is concerned, and it is absolutely important that we observe that principle and ensure that as between the legislature and the Executive on the one hand, and the Judiciary on the other, the principle of separation of powers is respected.  Thirdly, Chairperson, if I could comment on the structural arrangements. Our Constitution makes provision for a number of institutions and mechanisms in addition to the Constitutional Court to deepen democracy in our country, but also to ensure that human rights are respected and that abuses or abuse of power can be curbed, regulated and ultimately eliminated from our way of life and I refer here to the Human Rights Commission, to the Office of the Public Protector to the Gender Equality Commission in particular.  I mention them because in 1994 those Institutions existed on paper only, the Constitutional Court also existed on paper only, and some of the things which I was responsible for related to giving life to all those Institutions and we promoted legislation in respect of all of them and took all those practical measures which were necessary in order to give life to all those Institutions. And so I am saying that we now have the constitutional framework and structural arrangements which will help to ensure that gross violations of human rights do not occur again in our country; or where violations do occur they can be effectively dealt with.  Secondly, that abuse of power will be curbed and ultimately e eliminated.  Chairperson, what we have also observed in the past is the way the Judiciary had been compromised by the apartheid system and by repression and so that has raised the need for us to ensure that every possible step is taken to strengthen and entrench and also protect the independence of the Judiciary in our country. And the question is - what have we done about that and what do we intend to do.?  Firstly, Chairperson, we concentrated on getting established the Judicial Service Commission which is a body consisting of Judges, Lawyers, Parliamentarians, there was even a former Trade Unionist serving on the Judicial Service Commission, no longer can Government make appointments to the High Court Bench. Appointments are made by the President on the recommendation of the Judicial Service Commission. Only in respect of acting appointments does the Minister and President have certain powers but we exercise those powers in consultation with the Judges President of the Country. Much to the dismay of some of our colleagues and friends, comrades in struggle, I have not made a single appointment except in consultation with the Judge President of the Division concerned, and it is not for any fear or weakness on my part, it is the recognition on my part that politicians must not dictate the nature of appointments to our bench. In the short-term it will cause some problems, some unhappiness with regard to some of the appointments, in the long-term it is the building of that tradition and culture which will stand our country in good stead. Secondly, the tenure of office of Judges is secured. Thirdly, the question of salaries and conditions of service of Judges are removed from the hands of politicians, yes, Parliament has to deal with these matters but they are dealt with separately from the Civil Service.  The issue of Judicial training has arisen, and Chairperson, and I think having listened to some of the submissions, the need for Judicial training can be seen to be more important than ever, and so as Minister and as Head of the Department we have spent a lot of time looking at the question of Judicial training. We have consulted far and wide internationally, we have looked at other jurisdictions, we have secured the assistance of other democratic countries and we have spoken out about the need for Judicial training, for orientation courses and so on, both in respect of High Court Judges, Magistrates and incumbent judges and magistrates. And I think that we regard the issue of Judicial training to be extremely important. At the same time it is necessary for us to handle the question of Judicial training in a way which will not compromise the independence of the Judiciary and that is why I do not see Government or the Executive or the Minister organising training programmes for judges or magistrates. I do not see myself determining the content of courses that incumbent judges or magistrates may attend. That to my mind would amount to political interference and I see the role of the Judicial Service Commission to be important in that regard. Issue of Judicial independence is coupled with Judicial training and Judicial education. Training Judges for independence is an important element of Judicial education. One does not want to see indoctrination courses of any kind. One does not want political ideological to form the subject matter of courses. One wants to ensure first of all that our Judges are technically equipped, that they know the law, that they know judicial methods, they are able to write judgments and all those technical methods. These are not things which I have invented, Chairperson, those are things which other democratic countries and judges in other democratic countries are saying. And so the judicial training programmes therefore needs to be organised in such a way that Judicial independence is not compromised. But that also immediately raises the question of Judicial accountability, and that is the question that the NADEL has been asking in everything that they have been saying. Are judges accountable? Is the Judiciary as a whole accountable? If so to whom are they accountable? And of course how can we ensure that such accountability is established again without compromising the independence of the Judiciary?  And so whilst I am for accountability, and we are looking at how other countries have established accountability, it is not for Government or the Minister to establish mechanisms for accountability to themselves. My view is that it is for a Judicial Service Commission Sir, to look at the question of accountability and to establish the necessary mechanisms. I can say that the Judicial Service Commission has, over the past few meetings, been looking at that issue and I am certain that that process will result in mechanisms and procedures being established in that regard. According to the NADEL submission, some of the biggest problems existed at the level of Magistrate's Courts, and I agree with that view. I think it was a structural problem in addition to the other problems which may have existed. The structural problem relates to the fact that magistrates were regarded as part of the Civil Service, they were treated as part of the Civil Service, their salaries and Conditions of Service were determined together with that of other Civil Servants. They were appointed by Government; they performed agency functions on behalf of Government; they performed administrative functions; they were drawn from the ranks of Prosecutors, unlike the Judges of the High Courts and so there were a large number of problems associated with those factors which compromised, reduced and if not at times obliterated the independence of Magistrates.  Again, I should say, Chairperson, that one must give due regard and compliment those Judges and Magistrates who, despite all those structural problems and our history, nonetheless did try their best to administer justice according to their conscience and sought, under very difficult circumstances, to protect the rights of persons. There have been judges and magistrates who have done that and I think one must express one's appreciation for that.  But I am saying that with regard to magistrates then there were huge problems, and of course confessions referred to were often taken by magistrates and a call has been made for an explanation in that regard. My own position is, Chairperson, that we must look to the future, and so in the same way that we have a potentially powerful Judicial Service Commission, and I myself don't believe that the Judicial Service Commission has reached it's full potential as yet. It is developing that but there is much to be done and we also need, my own view, greater transparency. Some of our cessions in the Judicial Service Commission are closed and that leads to a great deal of speculation about what happened in these meetings. My own experience of meetings of the Judicial Service Commission has been that had the meetings been open we could only have benefited from it because the discussions in the Commission are vigorous, they are honest, there are different points of view and it is a great credit for the democratic culture, I think, that we are trying to establish.  But we are also re-structuring the Magistrate's Commission in our country. We have about 540 magistrate's offices in the country and we believe that the Magistrates Commission needs to play a role in relation to magistrate's courts, similar to that of the Judicial Service Commission and therefore I do not see the present method of appointment remaining in place for ever and ever. We will be moving away from the current method of appointment, something which we have inherited so as to ensure that there is a more independent process.  We have passed legislation to remove the fixing of salaries and Conditions of Service for magistrates from the Civil Service. We passed legislation to bring all magistrates under the control of a Magistrate's Commission rather than Government.  Then again with regard to magistrates training programmes and issues of accountability need to be addressed and those are issues which are also being looked at and obviously, Chairperson, the kind of inputs and guidance we will receive from the Commission will be welcome. I turn then to the question of access to justice. That is a very important area for us and often neglected. It is true to say that the overwhelming majority of people of our country did not enjoy access to justice. By access to justice I would roughly describe as the existence of mechanisms and procedures at all levels of our society which would enable citizens and non-citizens, where appropriate, with ways of having their disputes and problems resolved in a way which would maintain harmony in our society. Where such mechanisms and structures do not exist, procedures do not exist, then people and communities are forced to
create such mechanisms for themselves and this results in people taking the law into their own hands and the end result of taking the law into their own hands is violence and the absence of access to justice is a contributory factor to the culture of violence which has pervaded our society.  And so we are looking at the question of access to justice which means firstly access to courts. People must have access to Courts and therefore we are looking at our current Legal Aid system which, in my view, has been in a state of crisis at a number of levels and it is clearly necessary for the whole Legal Aid system to be reviewed. We have been looking at this, we have been consulting with role players and will continue to do that and there will be a forum in early December at which the Legal Aid system will be discussed and where proposals will be made for the future direction of the Legal Aid system in our country. ....(tape ends)
  ...legal profession as to how it should organise itself. At the same time there is the public interest and that is what government is interested in - protecting the public. And so in the restructuring of the legal profession we want to find a formula through which we will ensure that public interest is protected, but leaving it to the legal profession to ensure that they are able to organise themselves and regulate themselves as much as possible. There is no final answer to that too. It is a matter which we are looking at.  
 Also Chairperson we believe that in all the structures which are created, mechanisms which are created we should look at alternative dispute resolution mechanisms. I will not dwell upon that except that the South African Law Commission is looking at alternative dispute resolution mechanisms and in other countries it plays a very important role. There's no reason why it shouldn't in our country.
 And then some submissions have dealt with the role of the Attorney General, the role of the prosecutorial authority in our country. I have finalised, or the department has finalised the drafting of legislation to create a single, national prosecutorial for our country. That prosecutorial authority will be headed by a national director of public prosecutions. And all directors of public prosecution existing at provincial or other levels will be accountable to the national director of public prosecutions. Which is not the case at the moment. 
 The current structure is that there are attorney generals, attorneys general in different provinces and areas and they are responsible for what happens within their area of jurisdiction. They are not answerable to any national attorney general which does not exist in our country at the moment. 
 I am mindful of the criticisms which have been made of the office of the attorney general; the kind of decisions which were taken; and the role of the prosecution system in our country. Because of our constitutional framework and Bill of Rights I am very confident that the transformation of the prosecutorial authority will result in a respect for the rights of individuals and of people in our country.
 And then the next point I want to make with regard to the issues which have been raised is the issue of law reform. Quite clearly Chairperson, members of the Commission when you adopt a constitution which transforms South Africa overnight into a constitutional state it does not mean that all the institutions have changed at the same time. It does not mean that the legal system has changed. It does not mean that there's automatic change in legislation which exists on the statute book. And I accept the view that political change in 1994 brought about no other change in our country. I think that the revolutionary change is the transformation of our constitutional framework. That is totally revolutionary. But there was no socio-economic change, no institutional change, no attitudinal change, and what we are living through now is a period of transformation in relation to all of those matters. I am as impatient as many others about the pace of that transformation and I believe that we need all to work together; state, government, department, civil society to speed up the process of transformation, so that we transform our society. 
 At this stage I'm concerned about the transformation at the level of our legal system and to make the point that the South African Law Commission has been entrusted with the task of investigating the kind of changes which need to take place within our legal system. So as to ensure that our laws comply with our constitution. There are many areas of law not only within our criminal law and procedure but other areas which will be found to violate our constitution and Bill of Rights. It is a question of serious study which is necessary to purify our law and to bring our law and legal system into line with the constitution. 
 I make this point Chairperson in the hope that the role of the South African Law Commission will be highlighted in this regard. It has a large number of programmes on it's record and it is attending, it has set up a large number of projectivities, one of which you will be very interested in. Or some of them you'll be interested in. One relates to women and children, protecting women and children against violence. And the other which I think this Commission will make a big impact upon is our project, or the Law Commission's project on victim empowerment. I just want to say a few words on that and then I want to conclude with one or two other remarks.
 Our legal system over the years has never paid adequate attention to victims and the concerns of victims. Our criminal law and criminal procedure have been designed historically, it's not and not only since the advent of the National Party, it's been so since the Union of South Africa and before. The fundamental objective of our criminal law and criminal procedure was to protect the state but in the latter years of National Party rule the security of the apartheid state. So our criminal law system pays scant regard to what happened to victims. Victims came to court as witnesses and complainants. After giving their evidence they were thanked for having given evidence and told to go. But crime was essentially regarded as a crime against the state. And quite correctly it is a crime against the state. But the wrong to the individual, to the victim has been sorely neglected in our history. Now I am saying that this Commission can make a contribution towards a re-assessment of our criminal justice system and it's objectives. Because we believe that in a democratic society, in a constitutional state what happens to individuals is very important. And the hurt and harm caused to individuals needs to be addressed. And that is why we have asked the South African Law Commission to review the whole question of victim empowerment. Which is much more than, much more that compensation but, compensation is part of it.
 Now the accident of history in our country which has sometimes been criticised has actually provided South Africa with a wonderful opportunity of reassessing the underlying values of our criminal justice system. And here the Truth and Reconciliation Commission is grappling with: how to ensure that there is justice for victims in a situation where the political compromise in our country dictates that there shall be amnesty for persons who've committed gross human rights violations, where of course there, there has been some political motive. And so one of the major issues that the Commission I believe is grappling with, if I read the situation correctly, is how do we ensure that there is maximum justice. And the only way it can be done is if we look at justice from the point of view of victims. And that is why I believe that the work of the Reparation and Rehabilitation Committee is so important in our country. I think that many role players have underestimated, understated and neglected the importance of the work of the Reparation and Rehabilitation Committee. I have seen the recommendations of the Committee and I'm very excited about it. I'm of course concerned about the financial implications. That is another matter that we need to grapple with. Can our country afford to implement all the recommendations of the Reparation and Rehabilitation Committee? As I say that is another point. 
 But what the Commission has done and the Committee has done is to say that we must begin to address issues which affect the fundamental basis of our criminal law from another dimension and that is from the basis of the principle of restorative justice and restitution. What can we do to ensure that victims are placed in a position as best as possible to that before the harm was committed? What steps can be taken to restore the dignity of victims? And so those are major questions. Not only for the Commission but for the future of our criminal law in the country. And I look forward to the assistance of the Commission in this regard.
 So I would like to conclude by saying that I and my department are not only calling for transformation of everyone else. I know there has to be transformation and I agree with the view that representivity is an important element. Representivity in terms of race and gender. Insofar as our justice institutions and the department itself are concerned transformation does not only mean bringing black faces into our institutions, and bringing women into our institutions. Those are very important. Our structures have to be representative but, what is the kind of culture which must pervade in those institutions? What attitudinal change do we need to bring about so as to ensure that there is respect for human rights and that we build a democratic culture in our country and a democratic culture in our institutions? Many of our institutions still reflect the authoritarianism of the old order. Much of the culture of authoritarianism is still in place. And I want to say to those who are impatiently urging greater and speedier transformation that those issues are important for us. And I see transformation therefore as being a very important item on our agenda. 
 We have addressed the issue of transformation in the Department of Justice. I have not made a big noise about it Chairperson but I have a new management in place which is, which is representative in terms of race but I regret to say not properly so in terms of gender. We need to do much better in that regard. The inputs which I've given you, some documentation will give you some information as to the steps which we have taken to transform the Department of Justice. And as you will see many steps have been taken and the results are there.  It's an on-going process. 
 But we think that transformation must be deeper than that and so we set up a planning unit in the department consisting of experts brought in from outside the department; experts in human rights, foreign experts as well as legal academics in our own country and that planning unit has been working on a framework for transformation of our administration and system of justice. As a result of that we have produced a document which is called "Justice Vision 2000". The fancy title is not a gimmick. 
 The document identifies seven areas of transformation. It relates to the Department of Justice itself, the institutions of justice, access to justice, the very important area of safety and security, that is dealing with crime and a number of other issues. And arising out of the framework which we produced our planning unit produced a number of business plans, projects which are currently being implemented to give effect to "Justice Vision 2000".
 Chair I want to conclude by saying that I thought it wiser to speak about the future rather than the past. Even though as a practitioner I think I can say more than most practitioners that are sitting here about the past, but I think the future is so important for us and the best to way to deal with the past is to guarantee a future in which the rights of all our people are respected and hence I have resisted that temptation to speak about the past and I hope that you will accept that. Thank you.