Special Hearings — Legal Hearings — 1997-10-27

JULES BROWDE: Chairperson, commissioners, ladies and gentlemen, the GCB as it is more commonly known has accepted your invitation to make written submissions to you and now to appear before you. It has done so by a unanimous decision of it's executive, representing all constituent bars in South Africa earlier this month. We thank you for the opportunity to be here today.
 Personally I regard it as a special honour to have been asked to speak on behalf of the South African bar. My only qualifications being that I have almost completed 50 years as a member of the Johannesburg bar at which I have practised continuously and was it's chairman twice in the turbulent times with which we deal. 
 You will know Madam Chair that the written submissions that we filed with you a week ago and copies of which we have given to other organisations representing legal practitioners to senior members of the judiciary and which we have released to the media are extremely detailed. They cover not only the 34 year period with which you are directly concerned but, in the interest of a wider perspective tell you something about the history of the GCB since it's inception in 1946 and the role it endeavoured to play in the administration of justice from the outset until the commencement of your period of scrutiny. 
 It is not my intention this morning to seek to reiterate all this material in the short time at our disposal. We also believe that would not be particularly useful to you. What I shall rather seek to do is to sketch salient features of the submissions and to concentrate on one or two aspects emblematic of our stance here today. 
 I should begin with your central enquiry. What we understand you Madame Chair to wish to establish is how it was that a developed legal system drawing upon rich civil law and common law antecedents could yet not have prevented the gross violations of human rights which day-by-day over the past two years have been remorselessly tabulated not only in your own hearings but in a series of criminal trials across the country. The cornerstone of the law was after all so clear. It was simply stated in these words by the Judge President of the Eastern Cape in 1962, Mr Justice de Villiers who said in the case of KANYILE v MINISTER OF JUSTICE and I quote: 
"The supreme court is the protector of the rights of the individual citizen and will protect him against unlawful action by the executive in all it's branches in the same way as in England the supreme court will protect the British subject even from the Crown. The court shall rather be astute to find the means of exercising it's function and jurisdiction in the protection of a citizen from a potential inroad on his liberty."
 What went wrong? That's the first question. What can be done to try to ensure that it doesn't happen again? That's the second question. After all it has been memorably said - those who will not learn from history are condemned to repeat it. 
 The GCB Madam Chair you will find in our written submissions a short exposition of the GCB a federal body in respective constituent bars which are voluntary associations of advocates. When it was formed in 1946 the decision was taken precisely because two bars had colour bars in place that no union of advocates could be formed. This explains much of the history that follows. At certain times because a principle of unanimity was applied the GCB was prevented from speaking out on certain issues. When that happened however almost invariably constituent bars took up the cudgels. Ultimately in the mid-1970's the GCB and individual bars brought great pressure to bear upon the single bar where the colour bar remained. I shall say more of that in a moment.
 I come to the legal edifice of apartheid. A significant portion of our written submissions comprises an overview of the house that apartheid built. We seek to trace the price paid for the application of the Westminster constitutional system in a distorted society, one in which only a minority could vote. The result was an unrepresentative legislature and an all-powerful executive. Under such a system the courts of course had a truncated constitutional role. The laws were immovable objects, incapable of being struck down by the courts as is now the case.  Perhaps the cumulative effect of this is best summarised by what we say in volume one in paragraph 14 and 15. We say: 
"It must be borne in mind that notwithstanding on occasions were the opposition both inside and outside Parliament the National Party throughout the apartheid era enjoyed a sufficient majority in Parliament to enforce it's will from a legislative point of view. Coloured people were deprived of the vote notwithstanding the protest of inter alia the torch commando. Universities were segregated notwithstanding the united opposition of the so-called English speaking universities to such moves. Political parties were segregated totally against the will of their members. Vast numbers were removed from their homes against their will in terms of resettlement programmes and the Group Areas Act. People were detained without trial and, as no one can now deny, tortured and murdered despite many protests. In every instance the National Party pursued it's goal of apartheid with ferocious determination overriding all opposition. It is impractical and unrealistic to think that the courts could have stopped those excesses. This is not to suggest that the courts were powerless in the face of parliamentary injustice. The courts undoubtedly had the capacity in many instances to mitigate the harshness of the laws of apartheid. And even where this was absent judges could have chosen to speak out forcibly against the subversion of fundamental principles of justice."
 There are a number of notable instances of the former and some, though significantly less of the latter. In the face of an extraordinarily powerful and ruthless state it is to some degree surprising that as much was done and said as was done and said. However in the light of the gross injustice of the laws in question and the abuses of human rights they permitted it was an undoubted failing that so few of the judiciary sought to mitigate the effect of these laws or express their revulsion at them. 
 The judiciary, Madam Chair, in our submission we express a number of criticisms in relation to the supreme court bench in South Africa and the way it was constituted. But we conclude as follows: 
"Whilst we have expressed criticisms of the shortcomings of the bench the position remains that throughout the apartheid period the supreme court bench preserved a substantial measure of judicial independence. Across the field of civil law there is no question that it maintained very high legal standard in accordance with internationally acceptable standards of civil procedure. The application of those standards to the peculiar problems posed by the apartheid policy was inadequate for the reasons dealt with above."
 Overall we believe that the record of the bench was fairly summarised by Arthur Chaskalson, SC, as he then was at a conference in 1989. I believe you already heard this Madam Chair but it bears repetition in our submission because it is an admirable resume of the role played by the judges. 
"In reviewing the history of the courts of this country...."
said Mr Chaskalson, 
"....some writers have criticised the way in which South African judges have discharged their duties over the years. That they could have done better than they did is I think now clear but that is true of all of us and little is to be gained by lamenting the past. What is important is the future and it is here that I believe that we will come to appreciate that we owe much to our judges and a great deal to some of them. For despite all the paradoxes they have somehow held to the infrastructure and had kept alive the principles of freedom and justice which permeate the common law. True at times no more than lip service has been paid to these principles and there have been land-mark cases where opportunities to give substance to and uphold fundamental rights have been allowed to pass without even an expression of discomfort, let alone a vindication of the rights. Yet the notion that freedom and fairness are inherent qualities of law lives on and if not reflected in all decisions is nonetheless acknowledged and reinforced in numerous judgements of the courts. That is an important legacy and one which deserves neither to be diminished nor squandered."
 And what of the bar itself Madam Chair? We seek in our submissions to explain something of the structure of the bar. This includes it's central article of faith, professional independence and consequential aspects such as the duty to accept briefs, the so-called Carbonic(?) rule, and the balancing of duties to a client and to the court. We say something to of what the bar has sought to do internally particularly to address the distortions within our society which are a lingering legacy of depravation and discrimination particularly in the field of education. 
 We have a long way to go and there is no room for complacency. Yet we note there are now more black members of the Johannesburg bar than the total number of counsel at a number of bars while at the Natal bar 53 out of a 182 members are now black. 
 We are also intensively engaged in advocacy training programmes with the significant support of a number of members of the judiciary and professional bodies outside the country. The GCB has been invited to assist the Lesotho Law Society in advocacy training and it hopes that in future it may be able to assist in advocacy training in other neighbouring states.
 What did the bar do in the years 1960 to 1994? As a profession the bar, through the GCB and through a number of constituent bars spoke out time and again during the years in relation to which this enquiry runs, against legislative and executive action which it is clear fostered gross abuses of human rights. We document them all in the volumes which are before you.
 May I take you to one or two examples which give you the spirit of the times. In volume 2 and page 114 under the heading; "The Second Decade 1970 to 1979" there is the following and I shorten it because of the time constraints Madam Chair. 
"On 22 May 1970 the GCB chairman Coetzee QC had a meeting with the Minister of Justice to discuss the detention under the Terrorism Act. The meeting was such that on his return to Johannesburg he sent telegrams to all the chairmen of the bars with the request to let him know urgently whether they thought that an executive committee meeting should be convened for the Saturday immediately following."
Coetzee reported that he referred the Minister to the exchange of correspondence in 1969 and his subsequent interview with the Minister in particular with the unfortunate wording as he put it of the Terrorism Act and the nature of some of it's - and again in his words unfortunately "draconian provisions".
 The Minister at the outset made it clear and I quote from the Minister: 
"Dat oor die wet self hy nie bereid is om na enige vertoe meer te luister nie."
He remembered how the GCB had put it's case about the Act to him nine months previously but emphasised that the adoption of the Act in Parliament in 1967 was unanimous with the exception of Mrs H Suzman M.P. 
 Then Coetzee goes on: 
"Ek," se Coetzee "het hom daarop gewys dat ons beroep nie verbonde is aan die oposisie nie en dat dit ons in beginsel nie gaan om regeerings parteie of oposisie parteie nie. Ons is begaan slegs oor dit wat die wetgewende of uitvorende gesag produseer. Maar gesien sy houding dat hy nie bereid is om die wet self verder te bespreek nie sal ek nie verder daaroor praat nie."
That's the first one I'd like to refer you to.
 Then I refer to the next one at pages 118 and 119 which reads as follows: 
"A special meeting of the Natal Bar was held on 10 November 1971 to discuss the desirability of issuing a press statement relating to detention without trial and possibly to the death of persons detained without trial in terms of the Terrorism Act. The chairman, Didcott SC read a statement issued by the Cape Bar Council expressing deep concern about the situation and recommending a judicial commission of enquiry. He stated that he'd ascertained from the chairman of the GCB that the GCB did not propose to issue a statement or to make representations to the minister...
and I quote -
"....because it was felt the matter was a political one",
He added that it will be a long time before any ...(tape ends) statement. 
 On various occasions the Society of Advocates in Natal has expressed the firm opinion that it is not in the interest of justice for legislation to sanction the detention of anyone without simultaneously providing him with the right of adequate, swift and regular access to the courts. This view has not altered. The opportunity for the courts promptly and regularly to investigate the treatment of individual detainees would substantially increase this prospect, on the one hand that any actual now practises were eliminated, and on the other hand that unfounded complaints about their existence is shown by an impartial tribunal to be without justification. Either result would immeasurably strengthen the administration of justice in South Africa and enhance it's reputation.
 Didcott SC was subsequently asked to prepare a draft letter to be placed before the executive committee of the GCB relating to a recent statement by the Minister of Police in which he'd expressed disapproval of the manner in which defence council were endeavouring to establish that political detainees were being maltreated by members of the police force. The council felt that since the primary aim of the Minister's statement had been to attack communist activities in the country. The innuendo was that council who endeavoured to establish that detainees were being improperly handled were assisting the communist cause. It was generally felt this type of approach was tantamount to intimidation of council, more particularly in view of the fact that council with communist affiliations were by government edict not permitted to practice.
 The next one Madam Chair is page 138 which reads: 
"At the July 1981 meeting of the GCB the council affirmed it's unequivocal opposition to the principle of bannings and detentions without trial. It recorded the council has on previous occasions voiced it's concern and disquiet in this connection. It has for many years been implicit in the legal system of all civilised countries that no man should be punished or otherwise made to suffer by the state except for the distinct breach of law proved in the ordinary manner before the courts of the land. Traditionally courts in South Africa have acted as protectors of the rights of individual citizens and the proper administration of justice requires that such protection be given even against the executive."
 Then the last one I want to briefly deal with concerns the fact that in 1972 the government promulgated the notorious Ovamboland regulations which permitted the flogging of accused persons after a trial before a tribal court which disregarded virtually every requirement for a fair trial. The GCB wrote to the Minister for Bantu Administration and Development, as he was then called, and protested. Eventually a response was received not from the Minister but from the Minister's secretary. He wrote and it was in Afrikaans but I translate it: 
"My Minister points out that the situation has not been approached by the administration in a vacuum. We are dealing with terrorist movements and individuals and cannot adopt a theoretical and academic approach but must have a practical and effective goal in mind."
This Madam Chair was typical of the responses to protests from the bar. But they were continued.
 There are many such examples of which these are a random few of vast efforts to influence the government and the public to turn away from the unjust laws. But these few examples will suffice for present purposes. 
 I already said that two constituent bars of the GCB applied a colour bar. What this meant to the victims was expressed at a dinner given in his honour by the Johannesburg Bar earlier this year in these words by in these words by our present chief justice his lordship, Mr Justice Mohamed. 
"The pain and humiliation were intense...."
he said,
"my status was determined by reference not to what I was but was not. I was non-white. It set about imposing on me a badge of inferiority sought to be written on my forehead. It's dominant consequence manifested itself in rejection and exclusion. A constitutional exclusion from the bar in my home city, which was Pretoria. leaving me to find an alternative bar in Johannesburg; exclusion from the right to occupy any office in chambers for counsel in Johannesburg, leaving me for 12 years to squat from hour to hour, from office to office in the chambers of one or other colleague temporarily in court; exclusion from the common room frequented by these colleagues leaving me to consume my sandwiches in vacant offices or corridors, and when this was not convenient even in toilets on occasions; a directed but unheeded exclusion from the robing room used by other colleagues leaving me to cope with the consequences; exclusion from the right to sleep overnight in Bloemfontein during appearances before the highest court leaving me to skulk across the border of the Free State before sunset to find accommodation from night-to-night more than a hundred kilometres away. These exclusions reinforced a multitude of other exclusions which denied my humanity. They inflicted deep wounds inside me often revived in the telling with a special kind of pain without bitterness."
 We trace in our submissions, Madam Chair, the conflict within the profession in relation to the colour bar. And the decision ultimately taken by the Pretoria bar in 1980 to remove the offending clause from it's constitution. I would want to read to you a resolution adopted by the Pretoria bar Council earlier this year, namely on the 17th of August 1997. It reads -
1 Die vereniging bevestig die korrektheid van die besluit wat dit meer as 'n twee derde meerderheid gedurende 1980 aanvaar is. Waar volgens die klosiele wat lidmaatskap to die vereniging tot blanke advokate beperk het uit die grondwet geskrap is.
 2 Die vereniging spreek onvolwaardeliks sy spuit uit teenoor alle persone wat voor 1980 nadelig getref is deur die voormelde klosiele en vra om verskoning daarvoor.
 3 Die voorsitter word gemagtig en gelas om individie wat al dus benadel of gekwets is, was te identifiseer en die kwesie met sodanige individee in die reine te bring.
En daar na 
3.1 Die voorgaande besluit op die bali se internet fasiliteit in beide Afrikaans en Engels te publiseer en 3.2: die voorgande besluit met gepaste persverklaring bekend te maak."
 I turn now to the question of membership of the bar, and one matter which after all these years called for particular attention, this is the striking off from the roll of advocates Abraham, or Braam as he was better known, Fisher QC, we tell the tale in our submissions but the following is I believe a sufficient precis of the story for present purposes. And Madam Chair might I say that I think the story of Braam Fisher contains in it a great deal to be learned about the bar and about advocates and about the administration of justice generally.
 Abraham, Braam Fisher was one of South Africa's leading advocates. He was admitted to practice as an advocate of the Transvaal provincial division of the supreme court on the 10th of January of 1935. He was appointed Queen's council on the 2nd of November 1951. He was the son of the Judge President of the Orange Free State and the grandson of the Prime Minister of the Orange River Colony. He was a Rhodes scholar. His membership of the South African Communist Party and his opposition to the policies of apartheid were public knowledge. He served for many years on the Johannesburg bar Council and was elected chairman. 
 On 24 September 1964 Fisher and 13 others appeared before a regional magistrate charged with three counts of contravening the Suppression of Communism Act 44 of 1950.  The first count alleged that the accused were office bearers or members of an unlawful organisation, namely the South African Communist Party. 
 The second count alleged unlawful activities in respect of the South African Communist Party. 
 And the third count alleged acts calculated to further the achievement of the objects of communism.
 At the commencement of the trial Braam Fisher applied for bail. He testified in the bail application, he stated among other things that he had no intention of leaving the country and that he would stand his trial. At that stage he'd been on brief for a particular client which required him to argue an appeal before the privy council in England. Fisher was represented in the bail application by the late advocate H Hanson QC. During the course of argument Hanson assured the court that Fisher would return to stand his trial. The magistrate granted him bail and he was permitted to leave South Africa for England in October 1964 to argue the appeal in the privy council. He returned to South Africa to stand trial which commenced on the 16th of November 1964.
 On Monday the 25th of January 1965, that's some three months after the trial commenced, Fisher failed to attend court for the first time. His counsel read out a letter from him dated 22 January 1965. The letter reads as follows: 
"Dear Hanson
 By the time this reaches you I shall be a long way from Johannesburg and shall have absent myself from the remainder of the trial. But I shall still be in the country to which I said I would return when I was granted bail. 
 I wish you to inform the court that my absence, though deliberate, is not intended in any way to be disrespectful, nor is it prompted by any fear of the punishment which might be inflicted on me. Indeed I realise fully that my eventual punishment may be increased by my present conduct. I have not taken this step lightly as you would no doubt understand I've experienced great conflict between my desire to stay with my fellow accused and on the other hand to try to continue the political work I believe to be essential. My decision was made only because I believe that it is the duty of every true opponent of this government to remain in this country and to oppose it's monstrous policy of apartheid with every means of it's power. That is what I shall do for as long as I can. 
 In brief the reasons which have compelled me to take this step and which I wish you to communicate to the court are the following -
 There are already over 2500 political prisoners in our prisons. These men and women are not criminals but the staunchest opponents of apartheid. Cruel discriminatory laws multiply each year. Bitterness and hatred of the government and it's laws are growing daily. No outlet for this hatred is permitted because political rights have been removed. National organisations have been outlawed and leaders not in jail have been banned from speaking and meeting. People are hounded by pass laws and by group areas controls. Torture by solitary confinement and worse has been legalised by an elected parliament. Surely an event unique in history. 
 It is no answer to all this to say that Bantustans will be created nor that the country is prosperous. The vast majority of the people are prevented from sharing in the country's wealth by the colour bar, in industry and mining and by the prohibition against owning land saving relatively small and grossly overcrowded parts of the country where in any case there exists no mines or industries. The idea that Bantustans will provide any solution would deceive no one but a white South African. What is needed is for white South Africans to shake themselves out of their complacency, a complacency intensified by their present economic boom built upon racial discrimination. 
 Unless this whole intolerable system is changed radically and rapidly disaster must follow. Appalling bloodshed and civil war will become inevitable. Because as long as there is oppression of the majority such oppression will be fought with increasing hatred. To try to avoid this becomes the supreme duty particularly for an Afrikaner because it is largely the representatives of my fellow Afrikaners who have been responsible for the worst of these discriminatory laws. 
 These are my reasons for absenting myself from court. If by my fight I encourage even some people to think about, to understand and to abandon the policies they now so blindly follow I shall not regret any punishment I may incur. I can no longer serve justice in the way I have attempted to do during the past 30 years. I can do it only in the way I have now chosen. 
 Finally I would like you to urge upon the court to bear in mind that if it does have to punish any of my fellow accused it will be punishing them for holding the ideas today that will be universally accepted tomorrow. 
 Please accept my deepest thanks for handling my case as you have. I do hope that my conduct will not embarrass you in any way.
 Very sincerely,
 Braam Fisher."
 Just two days later Madame Chair, and on 27 January 1965 the Johannesburg bar council resolved to instruct it's attorney to prepare an application to court for the removal of Fisher's name from the roll of advocates. 
 On 4 February 1965 Fisher wrote another letter to Hanson dealing with the decision to have him removed from the roll of advocates. It is a long letter and this time I quote only the following excerpts. 
"My dear Harold
 Since I walked out on you on the 25th of January, and I again express the hope that this in no way embarrassed you personally, I've been following the press and have seen the reports of the decision in terms of which it is said that the Johannesburg bar council intends applying to court in order to have my name struck off the roll of advocates. When an advocate does what I have done his conduct is not determined by any disrespect for the law nor because he hopes to benefit personally by any offence he may commit, on the contrary, it requires an act of will to overcome his deeply-rooted respected legality and he takes the step only when he feels that whatever the consequences to himself his political conscience no longer permits him to do otherwise. He does it not because of a desire to be immoral but because to act otherwise would for him be immoral. 
 I cannot believe," says Braam Fisher, " that any genuine protest made against this system which has been constructed solely to further apartheid can be regarded as immoral or is justifying the disbarment of a member of our ..." 
 I think it important to point out that in the founding affidavit supporting the application for striking off Festenstein QC, on behalf of the Johannesburg bar council stated the following: 
"To the best of my knowledge and belief the respondent," that was Braam.
 "...has at all times since he commenced legal practice until the 25th of January 1965 been regarded by the courts of the Republic, by the members of the Johannesburg bar and other legal practitioners as a most honourable and trustworthy member of the bar and has at all times observed the highest ethical standards of legal practice, and has been in every respect a worthy and distinguished member of the legal profession."
 This view Madam Chair is endorsed by the present Johannesburg bar council. I think it important to point out in fairness to the then bar council that the sole basis of the application for striking off was that Fisher had dishonourably breached his undertaking to the court to stand trial. The fact that he was facing charges of a political character did not form part of the application. Nor was it based in any way on his political affiliations. In fact over a long period every bar council, every bar council except Pretoria made it clear that they were against advocates not being permitted to practise because of their political affiliations. 
 In his judgement striking Braam Fisher's name from the role of advocates the then Judge President, Mr Justice de Wet referred among other things to the case of ex-parte Crowzer which is reported in 1905 of the Transvaal supreme court reports. The applicant in that matter had been enrolled as an advocate at a time when the applicant was
a prisoner on parole. He was convicted in England of an attempt to incite the commission of the crime of murder and was disbarred. Crowzer served his sentence in England and returned to South Africa to resume his practice. The court granted his application for re-admission as an advocate. Indeed Crowzer later became a judge of the supreme court. 
 In the judgement that I've referred to Mr Justice Solomon said the following, that is in ex-parte Crowzer. 
"The policy in this country as expressed in Ordinance 22 of 1903 has been as much as possible to wipe the slate clean and not to attach too much importance to acts committed under such circumstances. I think we are justified in acting in the same spirit as that in which the government has acted and as such as far as possible drawing a veil over the acts which were committed during the course of the war. And it is considerations of that nature which lead me to the conclusion that we are entitled to say the character of the applicant is not such as to justify us in refusing to admit him to the ranks of the bar."
 In Fisher's case there then follows a dictum of the Judge President who gave the judgement of the court which shows in our submission the dynamic nature of human thinking. He said, and I quote: 
"If the respondent, that is Braam Fisher, were to apply for readmission at some future time similar considerations may apply. It is impossible for this court to foresee what will happen in the future. We are concerned with the laws in force at the present time and with a structure of society as it exists in this country at the present time."
 Madam Chair some 30 years have passed since this judgement was delivered and we now live in different times and under a new democratic constitutional legal order. Those who took the decision to apply for the striking off of Fisher's name from the roll of advocates must have been confronted with an invidious problem. They recognised that Fisher had been regarded as a most honourable and trustworthy member of the bar, that he'd been in every respect a worthy and distinguished member of the legal profession. They believed that notwithstanding the esteem in which he was held by all the deception regarding bail, coming as it did from a senior practitioner, justified the striking off. There is no doubt that even in 1965 the issue was painful and divisive for those involved. 
 Many of the leaders of the Johannesburg bar felt that their personal relationship with Fisher was such that they would not be willing to appear in the application for his striking off. Thus it was that the then chairman of the GCB, who practices in Durban, was approached to move the application. For him the task was a distressing one since he too had a great respect and liking for Braam Fisher. A memorandum by him is included in our submissions Madam Chair as is a set of the Johannesburg bar council minutes dealing with the application.
 Today with the benefit of hindsight there is a different perspective. Fisher was confronted with an acute dilemma. He was torn between his fidelity to law which he'd faithfully served for many years and his profound commitment to opposing the injustices of apartheid. He acted not out of self-interest but from political and moral conviction. Far from securing any personal advantage he realised that his actions would result in increased punishment. 
 The course he followed has been aptly described in the following way by Mr Geoff Budlander in an article in Consultis in 1995 entitled: "Braam Fisher, the man and his lawyer." We submit it to you now Madame Chair because it encapsulates a dilemma of a lawyer practising an honourable profession in an unjust society. And will make I think a significant contribution to what you are attempting to ascertain. Budlander says: 
" The story of Braam Fisher dramatises and illuminates the typical questions of what the duty of conscientious lawyers is when the government, and particularly a non-representative government represses it's citizens. Many options present themselves. Does one simply go about one's business hoping that this unpleasantness will go away? Should one work within the immoral system as a lawyer trying to mitigate the evils of the system and to resist those who are it's victims? Or should one distance oneself completely and attempt actively to undermine and subvert the system?
 Braam Fisher's life demonstrates the first option was never acceptable to him. He appears to have attempted to follow the second option for a long time. And then he ultimately chose the third option; resistance and rebellion. Because in his words which I have already alluded, 
"I can no longer serve justice in the way I've attempted to do during the past 30 years. I can only do it in the way I have now chosen."
these are typical questions which will and should trouble all lawyers in all places. Honourable people have to attempt to make honourable choices and the story of Braam Fisher shows that it is the third option, Fisher's option which is the most difficult and it requires the greatest idealism and the greatest self-sacrifice. 
 The Johannesburg bar council recently acknowledged the courage and integrity of Braam Fisher on 18 July 1995 it resolved to take steps to honour his memory. Ultimately Madam Chair any application for striking off poses a fundamental question. Is the advocate a fit and proper person to continue to practice? Advocates are struck from the roll in order to protect the public from unscrupulous and dishonest practitioners. While recognising that opinions may differ the present Johannesburg bar council has resolved that it does not hold the view that Braam Fisher was not a fit and proper person to continue to practice as an advocate. It believes that a grave injustice was done to him and today can only apologise to his family - which it does. The judgement is not one which it wishes to retain. Moreover were it possible the Johannesburg bar council would support any application for his readmission to the roll of advocates. To this end it would welcome the introduction of legislation to restore posthumously the name of Braam Fisher and others in a similar position to the role of advocates.
 I would want to stress finally in this regard that in taking this decision the Johannesburg bar council and the general council of the bar in including this material in it's submissions does not reflect upon the integrity of the particular bar council which took that decision in 1965 to seek the striking off of Braam Fisher on the grounds that he was not a fit and proper person to be an advocate. That council included as members some great South African lawyers noted also for their independence and character and their opposition to apartheid.
 Fisher's letters suggest a grave moral dilemma for all concerned. What then Madame Chair are the lessons from history? It helps to look back only if we are to look forward. This is what we suggest to you in that regard. We understand the essence of the questions directed by the TRC at the institutions and bodies invited to make submissions regarding the legal system 1960 to 1964 to be this; how does South Africa endeavour to ensure that it's legal system will not in the future allow gross violations of human rights to occur? 
 We submit in our submissions about six or seven ways in which this can be done. I shall just refer to a few. In the first place we submit the requirement above all others is that a democratic order has to be sustained. This is a matter beyond laws and legal systems. "The only way that parliament can ever make legislation just is by making just legislation." so said the Natal supreme court in Dube's case in 1979. 
 While democratic values moreover are by general consensus best protected in a justiciable constitution such a constitution is not itself the primary requirement. As the eminent English constitutionalist, Walter Bagot puts it: "The light of a constitution is in the spirit and disposition of those who work it." 
 In the second place the supremacy of the law has to be maintained. It is best maintained in our society we suggested by a declaration of rights entrenched in the constitution. 
 In the third place an independent structure of courts is essential. The bar as it's been described as an early and committed protagonist of a separate and independent body presided over by the chief justice and charged with the task of appointing judges. It is essential that, that approach continues. And while concerns have been voiced in what we've said about the growth in size of the Judicial Services Commission under the 1996 Constitution and the striking imbalance of political appointees to it the JSC must expect to be under close scrutiny as it seeks to discharge in difficult circumstances the vital constitutional function vested in it.
 In the fourth place we suggest particular care has to be taken to ensure the survival of key institutions of civil societies such as free media, vibrant universities and other educational bodies, active institutions such as churches, political associations and other non-governmental organisations and a strong legal profession. 
 It also exists in ensuring that the profession has the fullest control over it's own affairs and in particular in precluding governmental interference in professional affairs. The European court of human rights correctly, in our submission, noted that totalitarian regimes have resorted and resort to the compulsive regimentation of professions by means of closed and exclusive organisations taking the place of the professional associations and the traditional trade unions. 
 We recognise that the principle brings with it the concomitant duties and responsibilities of the legal profession and in particular the obligation set out in paragraph 14 of the resolution of the basic principles of the role of lawyers adopted by the 8th united congress on the prevention of crime and the treatment of offenders in Havanah in 1990. It reads: 
"Lawyers in protecting the rights of their clients and in promoting the cause of justice shall seek to uphold human rights and fundamental freedoms recognised by national and international law. And shall at all times act freely and diligently in accordance with the law and recognised standards and ethics of the legal profession."
 The sixth lesson in our view that the organised profession like the courts must be made more representative of the population they serve. This is not to say that the administration of justice would best be served by an application of quotas of crash preferment on grounds of race and gender alone, it is to say that strenuous endeavours must continue to be made to enhance the progress of more black and women lawyers. A challenge for the bar is to pursue both equity and excellence. The standards to which we should aspire are those expressed in the United Nations resolution number 44/121 adopted on the 14th of December 1990, a copy of which is attached to our submissions.
 What finally is to be said of the role of the bar during the period 1960 to 1994? In these submissions we have endeavoured to present the facts which we have sifted from our records. Nearly all our leaders from the earliest days are now dead. As regards more recent times leaders who have survived have helped to clarify matters not always clear from the records. We have tried to present our history good and bad thus we expose for public record the racism which existed in certain bars. We've also recorded the endless protests, and objections and delegations to ministers seeking to combat yet further inroads in the administration of justice. 
In the circumstances which prevailed there is an echo of what Alexis de Tockville wrote in Democracy in America. "No man can struggle with advantage against a spirit of his age and country and however powerful a man may be it is hard for him to make his contemporary shared feelings and ideas which run counter to the general rule of their hopes and desires."
 Inevitably the record is imperfect. What, however, we would wish to do taking pride in some of the things which we have done in the ways and on the occasions described above in short we have challenged inroads upon the administration of justice but we must also acknowledge and regret that there were occasions on which yet more could have been done. At times so impregnable did the legislative and the executive fortress seem to be that bar leaders despaired. 
Just ten years before a commitment to transition to democracy was announced Kentridge SC wrote in the University of Pennsylvania Law Review; quoting William the Silent, the following: 
"Is there any hope of restoring what has been lost it would not be realistic to say so but realism, however sombre, is not to be confused with silence or acquiescence. It is not necessary to hope in order to work and it is not necessary to succeed in order to persevere."
 The Johannesburg bar council has resolved not to retain the judgement striking Braam Fisher from the roll and to apologise to his family. The Pretoria bar council resolved in August this year to apologise to all victims of it's colour bar. On the 17th of October 1997 that bar went further it approved the following press statement at an extraordinary general meeting of the whole bar. And I read it in conclusion: 
During the period which is covered by the submission of the general council of the bar to the Truth and Reconciliation Commission 1960 to 1990, the government of the day steadily eroded civil liberties, interfered with the rule of law and passed increasingly repressive legislation. While other constituent bars of the GCB voiced their concern the Pretoria bar failed to do so. And on more than one occasion refused to join it's fellow members in condemning executive excesses which brought the administration of justice into disrepute and prevented the courts from protecting civil liberties.
 Although the vast majority of the Pretoria bar's present members do not share the sentiments of the majority during the period under discussion, it cannot be gainsaid that the Pretoria bar as an institution failed in it's duty to fulfil the legal profession's role of custodian of individual rights and the rule of law. It's refusal to join the other bars in protest also prevented the GCB from speaking on behalf of the entire profession with one voice. 
 We apologise to our colleagues, to the judiciary, the attorney's profession, the public at large and in particular the victims of unjust laws for these failures. As is the case with the apology which we tendered in regard to the racial discrimination which our bar practised until 1980 we should have offered out our expression of regret at a much earlier stage. We apologise for this remissness. We are grateful for the opportunity which our fellow bars and the Truth and Reconciliation Commission have given us to set the record straight in public. 
 Dated in Pretoria, the 17th day of October 1997, GL Grobler SC Chairperson Pretoria bar. 
 Madam Chair I hope I gave not taken up too much time. I think I probably have but all advocates whom the GCB and it's constituent bars represent would wish to rededicate themselves to promoting the administration of justice in the future. In the Malan Koenderers phrase: 
"The struggle against the abuse of power is the struggle against memory, against forgetting."
We thank you Madame Chair most sincerely for this opportunity to have made this oral representation.