TRC Final Report

Volume 4

Chapter 4

Volume FOUR Chapter FOUR

Institutional Hearing: The Legal Community

■ INTRODUCTION

1 In his speech from the dock in 1962, Nelson Mandela said:

I would say that the whole life of any thinking African in this country is driven continuously to a conflict between his conscience on the one hand and the law on the other… The law as it is applied, the law as it has been developed over a long period of history, and especially the law as it is written by the Nationalist Government is a law which in our view is immoral, unjust and intolerable. Our consciences dictate that we must protest against it, that we must oppose it and that we must attempt to alter it.

2 All branches of the legal profession and interested organs of civil society were invited to make submissions on the role played by lawyers between 1960 and 1994. Those who responded to the Commission’s invitation are listed elsewhere in this volume. The Commission was deeply disappointed that judicial officers (both judges and magistrates) declined to attend the hearing and that their responses took the form of a few written submissions. The representative bodies of the rest of the profession were slightly more forthcoming: written and oral submissions were received from the General Council of the Bar (GCB), the Association of Law Societies (ALS) and the Society of Law Teachers. Several individual practitioners also submitted their views, as did the ‘alternative’ lawyers’ organisations – the National Association of Democratic Lawyers (NADEL) and the Black Lawyers Association (BLA). The Legal Resources Centre (LRC) and Lawyers for Human Rights (LHR) also made significant submissions. From government, the Minister and Department of Justice put forward their views in submissions, and several attorneys-general also attended. Amnesty International and the Centre for the Study of Violence and Reconciliation gave the Commission the benefit of their views.

3 In its invitation (which was issued both generally and to particular organisations and individuals), the Commission requested that, where appropriate, attention be paid to the following issues, indicating the general thrust of the hearing:

a The relationship between law and justice.

b Principles and standards by which to evaluate the legal system.

c What informed judicial policy?

d What, if any, attempts were made by the executive or other organisations or individuals to undermine the independence of the judiciary?

e The relationship between the judiciary and the state, the State Security Council, political parties or organisations.

f The appointment of members of the judiciary.

g The role of the judiciary in applying security legislation.

h The relationship between the South African judiciary, the legal profession and the law schools.

i The exercise of judicial discretion.

j Racial and gender discrimination in the judiciary, legal profession and law schools.

k The role of other role-players – namely the Minister of Justice; the Department of Justice, its line functions and Justice College; magistrates; attorneys-general; the legal profession, including the Bar Council, the Association of Law Societies and the Para-Legal Association; lay assessors; interpreters; and the ‘homelands’ (self-governing territories and independent states).

l Recommendations on how the legal system can be transformed to reflect a human rights culture and respect for the rule of law, and which will address the perception that justice is the privileged domain of few in our society.

4 The Commission was at pains to stress to those invited that:

It is not the purpose of the hearing to establish guilt or hold individuals responsible; the hearing will not be of a judicial or quasi-judicial nature. The hearing is an attempt to understand the role the legal system played in contributing to the violation and/or protection of human rights and to identify institutional changes required to prevent those abuses which occurred from happening again. We urge all judges both serving and retired to present their views as part of the process of moving forward.