Special Hearings — Legal Hearings — 1997-10-27

MS NGALA: My name is Busi Ngala on behalf of the University of Natal. The role of magistrates in the perpetuation of the apartheid system is both perplexing and interesting.
 It is perplexing to note that individuals who were entrusted with the power of arbitration and the decision making on such issues as whether or not an individual was guilty of murder, could be so biased in their approach that they consciously discriminated against others merely by virtue of their skin colour and gender. 
 It is interesting because it was not just a question of individual magistrates who chose to exercise their discretion in such a manner; it was actually part of a concerted effort to ensure that the apartheid system succeeded in subjugating the majority of the South African population. 
 This submission will focus on how institutions like the Justice Training College ensured that the system of apartheid was upheld and that magistrates performed their function within the four corners of their training, not necessarily the law.
 It will also provide recommendations on how the system can be transformed. 
 The Justice Training College was created for a number of reasons. Although its primary objective was to train magistrates in performing their duties, it achieved many other subsidiary objectives, such as affirmative action and capacity building for White Afrikaners and producing technocratic individuals who applied the law in a narrow manner.
 In 1957 its objectives expanded to include providing assistance to unqualified officials in their studies. This happened to be White Afrikaner males as one of their apartheid Government's drive to affirm their people in positions of power.
 In affect the courts as part of the civil service were used to create jobs for White Afrikaners during the days of what was commonly referred to as White - as poor Whites. I'm sorry.
 The College was therefore not limited to ensuring continued legal education and training of magistrates. On the contrary its functions were part of the overall strategy of the minority domination through the apartheid system.
 The sole objective of the syllabus of the Justice College was the production of technocratic officials, no legible in the law and specifically its application.
 The syllabus was not placed within the social economic and political context within which these magistrates were ultimately required to discharge their duties. A concerted effort was made to discourage critical analysis of the law. They were to apply in the lower courts by the Justice College. This practically meant that the magistrate could apply the laws in contravention of human rights. They're oblivious to hold their decisions impacted on society. The effects and consequences of applying legislation such as the state of emergency regulations did not occur to them.
 There are innumerable cases were conducted on the basis of evidence obtained in contravention of their fundamental human rights of the accused; some of these were highlighted by Ms Priscilla Jana. These emanated to a large extent from the attitude based on legal positivism on the part of the magistrates.
 The magistrates discharged their duties within the ambit and policy of the Government of the day. This in effect had an impact on the quality of their judgments.
 It is from the very same Justice College that the magistrates were enrolled initially for prosecutor's courses, later for magistrate's courses and are still so enrolled to this date. Such training is now inconsistent with a human right and value based approach to the law. Some magisterial districts in the peripheries have magistrates who have never had access to those training programmes. It is unclear as to whether this worked to their benefit or not.
 Our recommendations to the training are that the Justice Training College should be restructured and a new independent college within independent staff should be established to ensure that the training is geared towards encouraging critical reasoning by the magistrates in dealing with the matters before them within a human rights and value based framework.
 The Justice College should interact and co-ordinate its programmes with the new democratic structures such as the Human Rights Committee - excuse me - the Human Rights Commission and the constitutional court. This sentiment has been expressed by magistrates whom we have interviewed. The syllabus of the Justice College should place more emphasis on the new constitution and the Bill of the Fundamental Human Rights, especially as to how its provisions affect our common and statutory law at present.
 The syllabus ought to be amended to be steeped in a human rights and value based framework. 
 Monitoring mechanisms need to be established to ensure that those magistrates who emerge out of the old order are placed under pressure to change their attitudes and give effect to the spirit of our constitution.
 These initiatives would need the co-operation of Government, civil society and other magistrates.
 In conclusion, the above recommendations constitute our effort at the first steps that need to be taken to ensure that change occurs; that people are transformed and that the injustices of the past remain firmly in the past.
 It is our expectation that the recommendations contained here will form the basis of a process of transformation of the lower courts and that that courts should represent the South Africa that they say. Thank you.

YASMINE SOOKA: Thank you. You could actually sit there and I wonder if I might ask that you can - the fact that we have a little bit of a time constraint - if you could just try and summarise in some of the cases.

MS MOODLEY: It is on now, okay?

YASMINE SOOKA: It's fine.