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Special Report
Transcripts for Section 4 of Episode 72

TimeSummary
37:23Now to the legal sector hearing in Johannesburg. Without the complicity of the judicial system apartheid couldn’t have worked. The state needed the courts to apply apartheid laws and they did. This week’s hearing on the legal sector was packed with white men in dark suits. Some of them came to apologise, others to offer their visions for the future. Full Transcript and References
37:47Our criminal law system paid 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 their 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 solely neglected in our history.Full Transcript
38:24We were all part of a system sometimes for very good reason, but we all did play some role in upholding the framework of apartheid and therefore the framework that sustained gross violations of human rights. Full Transcript
38:40Why did this happen? You raise it, you ask the question, you’re critical about yourself, you concede that what you did fell short of what you should have done in the circumstances. But why? // The overwhelming majority of attorneys in private practice were white males as you set it out in Paragraph 3 of the summary. The suggestion that what really happened was that these people were beneficiaries of the system and that is why they were only prepared to go up to a point in questioning the system.Full Transcript
39:19In every instance the National Party pursued its 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.Full Transcript
39:48Their newfound sense of justice and defence of morality was actually very laughable. I mean they sit here and by rote talk about being regretful of what they did, but they didn’t do anything else. They never once even decided not to do something when they clearly had the power to do it. And to rise up a sort of Nuremberg sort of defence of, well we were incapable or our hands were tied, is nonsense. Full Transcript
40:19We can say that we do not want the money of these practitioners; we do not want them to go on their hands and knees and beg for forgiveness. We do not want anymore platitudes and token gestures. The apology of the Pretoria bar among others is noted, however we need to go beyond this and ask ourselves. What are we going to do in concrete terms to redress the imbalances, to demonstrate that we really are sorry? Full Transcript
40:49Why did the legal sector fail us and how can we prevent such a failure from happening again? These questions were repeated over and over at the legal sector hearing, but the judges and magistrates who administered apartheid were not present to give us the answers.Full Transcript
41:05In spite of a strongly worded appeal from Archbishop Tutu the country’s current and former top judges declined to appear at this week’s legal sector hearing. Instead, five of the country’s current top residing judges sent a written submission to the TRC in which they admitted that the law and the legal profession played a central role in the maintenance of apartheid.Full Transcript
41:34If you want to know whether white judges who went onto the bench had, across the spectrum, a range of views which white people in South Africa entertained I wouldn’t have thought it was necessary to ask me that question. The answer is rather too self evident.Full Transcript
41:49I think for the apartheid state to sustain itself it must have realized that it needed a judiciary that was both responsive and sensitive to its needs. Full Transcript
41:58The government saw quite clearly that it could have its cake and eat it too. It wanted to say, even at the time, that it was defying … pinion; one of the virtues of the South African government was it held to one very important value and that was the value of the rule of law.Full Transcript
42:12It has been said by many immanent judges, I think Judge Baquati in India was one of those, that a court and a justice system must provide haven for those who are oppressed and bewildered. I think we can sit here and analyse for the next five days, but I think we all in this room must accept that our judiciary and our legal system failed to do so and it doesn’t help unpacking that anymore except to say it was a dismal failure. I think the fact that your Commission has received 12 000 submissions from victims is perhaps more than compelling evidence of that failure. Full Transcript
42:48And the majority of judges adopted an approach which said that they should interpret the law in accordance with the actual intentions of the legislature and they took those actual intentions to be contained in those intimations. A small minority of judges did something much more noble; they forced the government or tried to force the government to declare in its legislation very explicitly that it wanted to operate not in accordance with the rule of law. And so what the government had was a bunch of tamed judges who would interpret legislation in the way that it wanted, but because the government wasn’t very explicitly stating what it wanted, it could say it was still operating in accordance with the rule of law.Full Transcript
42:28Why, it was asked, did we not hear from Justice Louis Harms - currently an appellant division judge - as to why his 1990 Commission into death squads and death sponsored killings was such a spectacular disaster. And what of the hanging judges? Why, asked Paula McBride, were there no judges present to explain why a 126 death sentences were handed out in one three year period.Full Transcript
43:53In their decision not to appear, they’ve sent the wrong message, they have hidden behind a mask that suggests that they were simply carrying out the law and the law is the law. The fact of the matter is there are unjust laws and they knew that many of these laws were unjust. They knew it and they could not be just simply mindless minions scurrying around doing that. Full Transcript
44:37They’re the ones at the end of the day who used to actually carry out all these laws. They should be called in to testify and to explain and confer their actions. If people from all these political parties can come in, whether or not they’re Deputy Presidents or Presidents, if they can come in, who the hell do these judges think they are at the end of the day? They’re not above the rest of us. They’re basically just… they always put their pants on one leg at a time just like the rest of us.Full Transcript
45:03There was unanimous agreement among panellists and testifiers that judges past and present should have attended this week’s hearing. The Truth Commission have confirmed the possibility that judges may yet be subpoenaed to answer questions about why many of them acted as they did in the past and to talk about steps that will be taken to prevent such bias in the future.Full Transcript
45:26The Attorneys-General agreed on two things at the legal sector hearing this week. Firstly, they had not served a political master and secondly that they had been as deceived as the generals and cabinet ministers were.Full Transcript
45:41‘Trojan Horse Killing NO PROSECUTION’ // It is well known that politically motivated crimes often did not make it to the courts and perpetrators remained faceless and nameless. // ‘Ribeiro Assassinations NO PROSECUTION’ // This is particularly so in the many many cases where Security Forces were the suspects. // ‘Cradock 4 Assassination NO PROSECUTION’ // The men responsible for deciding whether perpetrators would be prosecuted were the Attorney-Generals. This week apartheid’s prosecutors were grilled on exactly what their role was in the line of complicity that stretched from uniformed policemen to robed judge. ‘KwaMakhutha Massacre ACCUSED ACQUITTED’Full Transcript and References
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