Special Hearings — Legal Hearings — 1997-10-27

YASMINE SOOKA: Sorry Mr Malato, I think that we are striving to hear the submissions of all parties and in all fairness I have to protect the members from the GCB as well. So I'm going to ask you to limit your remarks to the substances, the issues and not make personal remarks about....

MR MALATO: : Thank you Chair. Right my submission is that there is a strong feeling that if there's any possibility of inviting the judges in a polite way let that be done, because we cannot help a deal if we talk about people but as we can request not to subpoena them like they have committed offences. Thank you Chair.

YASMINE SOOKA: Thank you Mr Malato. Professor Mason?

UNKNOWN: I'm just wearing my own hat although I've got a label here. Because I haven't got any mandate from anyone to discuss. Just a couple of thoughts. I think the point made by the GCB that maybe sitting judges shouldn't be here but I see there's no reason at all why past judges and retired judges and maybe Judge Rabie should be invited to come along here. And explain what went on when he was there. And there might be other retired judges who also. The other thing is it might be that we should give those judges who have been named in these papers an opportunity to respond. So if they want to come along here and respond to those allegations they should have an opportunity to do that.
 Just on Mr Coetser's point about only 5% of the judges work with criminal and political cases but those 5% dealt with life and death issues and so they were the very important cases. The big gap really in today's proceedings has been the magistrates. They've been hearing hundreds of thousands of cases every year. Hundreds of thousands of people going to jail every year through the magistrates courts and we haven't heard virtually a word. And we got a very, with respect derisory comment from the Magistrate's Commission which merely turned the questions back to you, and asked you guys a whole lot of questions. So we've heard virtually nothing. I don't know if the Director General of Justice is going to address that issue maybe on Wednesday.
 But also just Mr Wallace's point. It's true that we've got to look at the independence of the judiciary, at the same time we're at a particular moment of history and this is rally a hangover of the transition and the transformation process of trying to understand where we came from and where we're going. So we need to look very carefully I think about what is the position of sitting judges and should some mechanism be opened up to hear their point of view. But I think at least they should be given the opportunity to respond. Those of them that have been mentioned in these papers.

YASMINE SOOKA: Thank you. Perhaps I could just for the record indicate that an invitation was sent to the (...indistinct) as well asking them to make submissions. Let me say that most of them were quite grateful for the invitation but are quite ill, some of them suffer from Parkinson's disease and are very sorry that they've not been able to make a comment.  But I think the question that you raised about the I think the dilemma of the question of judicial independence and of course the fact that you want judges to talk and account for themselves and the fact that we're uniquely placed at this moment in our history where we're looking at a moral accounting of sorts is some, is an issue which the Commission will probably grapple with and will try and get some kind of feedback from the parties participating tomorrow and Wednesday. It is true that the magistrates in fact have not responded. And I hope that the Department of Justice will in fact respond because the magistracy did in fact fall under the Department of Justice before. But we'll try and get some answers from them.
 Mr Collerfin from the Human Rights Commission.