Special Hearings — Legal Hearings — 1997-10-27

CHAIRPERSON: We welcome you all very warmly to this special hearing on the Judiciary the legal system of our country during the period under review in terms of our founding Act.
 You are all particularly warmly welcome and if I do the invidious thing of mentioning a few people you will, I am sure pardon me.
 I declare to welcome Franklin Thomas who is the former President of the Ford Foundation and one of the many longstanding friends of our country. 
 Wayne Fredericks sitting next to him, yes, he is also a longstanding friend, then Prof. Lennox Hinds who will be Professor at Rutgers University and vice president of ... (indistinct) and United Nations representative of the International Association of Democratic Lawyers and Ian Roche who is the CEO of the firm Stephen Hynes & White and Dr. Mary Chelson.
Thank you.
 We have a group of young people from Norway who have been visiting the Truth and Reconciliation Commission. I have a specially soft spot for Norway which is my second home, will you Norwegians stand? Yes welcome!
 I want to say that we are very deeply appreciative of the splendid submissions which we have had from the Judiciary, representatives of the Judiciary and the legal profession either individually or as associations. 
 This is probably the most important hearing in a sense after the victim/survivor hearings. You see, in dealing with human rights violations, you are really concerned with justice, law, order, the disposition of power and authority and how these are regulated within conventional paramaters so that they are not abused.
 Violations happened within a specific social, political and economic context and law is quite central to how society is ordered and determines the quality, the texture of the society and whether it promotes an environment which is equitable and just, compassionate and caring where persons count or not; whether it is conducive or hostile to possibilities of gross violation of human rights.
 Without laws societal existance is virtually impossible for everything degenerates to the chaos of everyone being a law unto himself. In an ideal world the law will approximate as closely as possible to true justice, goodness, virtue, equity, the attributes of the well-ordered society that good law seeks to promote.
 Good law thus obliges obedience and the good citizen tautalogically would be the law abiding citizen.
 The black experience of the law.  Virtually every encounter with the law for blacks in the old dispensation was one calculated to develop in us a contempt, indeed a hatred for the law because every such encounter was virtually was designed to demean, to humiliate to dehumanise the black person since by definition a law you had had no part in its making was not likely to be favourable towards you.
 The legislatures in such a situation would have had to be extraordinary paragons of virtue to care too much about the reaction and experience of those to whom they were not accountable. The ultimate sanction of voting them out of office was not available to us and so the laws they passed did not need to be sensitive to black concerns and feelings.
 I grew up in Ventersdorp, perish the thought, my father often sent me to buy the Rand Daily Mail in town and on some of these occasions I would frequently see location urchins and that is where we lived, you know, a location. Township was the politically correct speak of a little later. These urchins were scavenging in the rubbish bins of the white primary schools.  They would come up with delicious apples and sandwiches that the white children had thrown away because they preferred the packed lunches their mummy's had prepared for them. Those who could afford to feed themselves were on the government school feeding schemes while those who could not afford it had no such feeding schemes.
 It was the worst logic of the grossly unjust political system buttressed by unjust law and of course there was no nonsense about separate but equal. The government spent about ten times as much on a white child for education per annum as it did for a black child. It was blatantly unashamadly separate and unequal.
 When later we moved to the Witwatersrand, I witnessed frequently how my father, a school principal, was humiliated to produce his pass. He in fact had something called an exemption, but he had to produce it to prove it. I saw black men everyday handcuffed together because of contravening the Pass Laws and as school boys we ran the gauntlet of zealous policemen in their pick-ups on their pass raids.
 It didn't matter whether you were in school uniform or not, you were in for the high jump if you didn't have the darn paper on you and many of us didn't know we could run so fast as we tried to elude the police and all of this happened to us because we were black, it didn't happen to white boys, it didn't happen to Indian boys, it didn't happen to coloured boys and we were expected go grow up revering the law, to grow up into law abiding persons when we had had such negative experiences of the law.
 Later when I became Dean of Johannesburg, I had first to go to the Pass office to be influxed into the area and my wife's pass as stamped saying she was allowed in the Johannesburg area as long as she was married to me. It was exquisite, this demeaning of blacks. The official residence of the Dean was in town because all my predecessors had been white. Lea and I decided we would live in Soweto rather than be dehumanised into honourary whites by asking for permission to live in the white town. It was all legal and yet was so utterly iniquitous and how could we be expected to develop respect for laws that were so patently unjust and designed to trample the dignity of people so comprehensively underfoot.
 The Honourable Deputy President of the Constitutional Court, Judge Pius Langa, has made a personal submission and I want to quote from this because it is quite intruiging that he and I separately thought to describe a little bit of our experiences. He says.
"My first real encounter with the legal system was as a young work seeker in Durban, a status which lasted the entire twelve months of 1956. It was during that period that I experienced the frustration, indignity and humiliation of being subject to certain of the provisions of the Population Registration Act No. 30 of 1950's and natives of an Area's Consolidation Act No. 25 of 1945 as well as other discriminatory legislation of that time. I was affected directly and adversely by these laws and regulations.
I was at the same time witness to their operation on other black people who were similarly placed. The imediate impact on me was severe disillusionment at the unfairness and unjustice of it all. I could never understand why race should have been the determinant of where I should live and where I could work. I was never able to understand why, while still a teenager, I was expected to live at a man's hostel and needed a permit to stay with my parents in the township. I was too niave to understand how it was that I could not look upon the legal system for fairness and justice, I was of course an impressionable youth, fresh from college and full of idealism, I had believed that my modest education would at least be a platform to build a reasonable life and career, le mond .
In that flash of youth I had thought I could do anything, aspire to anything and that nothing could stop me. I was wrong. My dreams came up against the harsh apartheid realities. The insensitive demeaning and often hostile environment it had created around me, proved to have been crafted too well, it was designed to discourage and humiliate those who like me sought to improve their circumstances and those of their communities.
Those early years for me and for thousands of others in the black community, the legal system failed, not only to protect but also to create a space for the exercise of the freedom to give a lot of our potential to the fullest."
 That closes the quotation.
 I have not myself suffered as much as others of my black fellow South Africans but I have calculated that I have experienced some of the rigours of forced population removals. I lived in Roodepoort Location. This was raised to the ground to make way for horizons which was for white people. 
 My mother worked at a Zenzaleni(?) an institute for blind blacks. Zenzaleni became a casualty of the removal legislation. I lived in Sophiatown and Sophiatown gave way to Triomf another white suburb. Mercifully now renamed Sophiatown again and also in what was then called Western Native Township which after we were moved out became Western Coloured Township in apartheid's obsession with race separation. 
 It was in . . . (tape faulty), the church we were married in was demolished. Munsieville was reprieved only because of the intervention of Leon Wessels. My wife's teacher training college, St. Thomas in Village Main, is no more, it too was the casualty of the Group Areas Act. I trained as a priest at St. Peter's in Rosettenville, it had to close down because of the Group Areas Act.
 White South African's often got angry when we said unjust laws don't oblige obedience, they made the mistake of thinking that legal and moral right were synonimous.  We had laws that made it a crime for a man to sleep with his wife if he was a migrant worker living in a single . . . (tape faulty) and decidedly at odds with God's law that the creed that what God had joined together no one should put asunder. 
 I once asked lawyers in Pretoria who were foolhardy enough to invite me to address them, how they could operate within a patently unjust legal system which was collaborating with an evil political dispensation that it subverted the rule of law through discarding the habeus corpus and also by putting the onus on the defendant to prove she was innocent when the hallowed legal cannon was the accused is presumed innocent until the prosecution has proved beyond reasonable doubt that she is guilty.
 Why didn't they boycott court sessions, since the world was being misled into thinking that South Africa respected due process. I posed this question to a judge who spoke movingly on how he had agonised with the moral dilema and I wish he had agreed to appear before the Commission to describe this wrestling with such ethical problems. It would have given us a useful insight and I am deeply distressed that no judge has seen fit to appear before the Commission. They have considered that it is not intrinsically in principle wrong to give an account before the Commission since they have done that in making submissions and many of them spendid submissions, in deep powerful testimonies.
 I believe Prof. John Dugard once spoke of how judges were called on to make choices, how they would operate, they have in my view been faced with another important choice and I submit they have made the wrong choice. In this regard they have shown they have not yet changed a mindset that properly belongs to the old dispensation which most of them have castigated so sharply in their submission.
 You can understand why we never regarded the police as our friends. When I was Bishop of Johannesburg, we were stopped at a road block near New Canada on our way to Soweto and they wanted to strip search my wife and daughter by the roadside. I protested at this indignity and so they took them to the nearby police station. I thought to myself in my livid anger, if they treated me in this fashion, what were they not doing to so-called ordinary black people.
 The police were never regarded as our friends as being there to protect us and that applied as well to the judicial system. The State of Emergency were experienced by us as periods when Security forces were given a licence to treat us like dirt, as of no account, they were indemnified against legal action. In all the delegations I accompanied to seek government, whenever we said anything critical of the police, then the immidiate reaction was that we were maligning them, that if indeed what we complained had happened it was really the action of a few mavericks, the bad eggs.
 Dr. Mgojo on one occasion retorted that for blacks it was precisely the opposite. There might just be a few good police officers. Our experience was that by and large they were mostly rotten apples and these were the people who had detainees at their tender mercy, who interrogated them and now it is clear that they could use methods following the Queensbury Rule. No holds were barred. 
 They extracted confessions through these brutal third degree methods. It is clear from amnesty applications that they perjured themselves frquently as a matter of course and our Courts . . . (indistinct) (tape faulty) difficult (...indistinct) that we had been tortured (...indistinct)..
 For most of us it was all a travesty of justice and brought the law into considerable disrepute and it is going to take quite a while to rehabilitate the law, for one of the strategies was to disobey unjust laws and a culture of non-cooperation, non-compliance has developed. 
 Most of the judges in our view were political appointments because they were believed to be broadly or fundamentally in sympathy with the then government and would hardly call in question. (tape faulty - recording stops)