TRC Final Report

Volume 4

Chapter 4

Subsection 1

■ SUMMARY OF THE SUBMISSIONS

5 The transcript of the hearing runs to more than 650 pages, to which must be added the hundreds of pages of written submissions.¹ What follows must, therefore, be read as an extremely generalised summary of the main points made by those who submitted their views. In the light of their pivotal role in the administration of justice and the controversy that surrounded their decision not to appear in person at the hearing, the chief focus was almost inevitably on the judges. This concentration on the superior court judiciary should not, however, be allowed to obscure the lamentable non-appearance of the magistracy, especially when it is considered that this is the level at which most South Africans engage with the courts. In addition, magistrates played a critical administrative role in the implementation of state policy throughout the period under review.

6 In addition, valuable insights were gained into the crucial supportive roles played by the advocates, attorneys, academics and the prosecutorial authority in facilitating the enforcement of the law — both where it resulted in injustice as well as, more seldom, justice.

The argument of establishment bodies

7 A general theme or argument that permeated almost all of the submissions by the judiciary and the ‘establishment’ legal professionals (the GCB, the ALS and the attorneys-general) can be expressed as follows:

8 It was argued that the doctrine of parliamentary sovereignty under the Westminster system required of lawyers (and especially judges) to respect, and indeed to defer to, the will of the majority in Parliament, thus denying the courts the opportunity to fashion statute law to achieve a degree of justice in the face of legislated injustice. In other words, the ‘intention of the lawgiver’ was the supreme guide in the interpretation of statutes.

9 Where there was some room for manoeuvre, particularly in the construction and development of the common law, or where clear statutory ambiguity permitted it, lawyers argued for and judges mostly adopted an interpretation that favoured liberty and equity.

10 Any attempt by the judiciary too obviously to circumvent the unjust effects of apartheid measures would, it was argued, have led inevitably (at best) to further legislative steps to reverse such decisions or (at worst) to the overt subversion of the formal independence of the courts and the ‘packing of the Bench’.

11 While there were examples of judicial decisions, behaviour and professional conduct which were clearly unjust and ought to be apologised for, and while it was generally conceded that much of what happened in and around the administration of justice ought to have been resisted and condemned openly and forcefully by individual lawyers and the organised profession, the record of judicial impartiality and pursuit of justice was satisfactory, if not good.

12 This general picture, allied with enormously principled and courageous action by a small minority of lawyers from all the branches of the profession, assisted in establishing the climate in which the political negotiators in the 1990s could agree that a constitutional dispensation (resting on the twin foundations of a bill of rights and the power of judicial review) was the most appropriate guarantee of dignity, equality and freedom for a future South Africa.

13 It was argued that any fair and accurate investigation into, and weighing up of, past judicial and lawyerly conduct would have to involve an effective ‘re-trial’ of the issues in their appropriate context – a complex, time-consuming, expensive and ultimately senseless undertaking. In any event, this could lead only to the blaming of individuals or groups of lawyers, which was not part of the Commission’s agenda. It would also prove unhealthy for the development of a coherent and respected post-apartheid jurisprudence.

14 It would have been improper, both in form and substance, for judges to appear in person at the hearing, for this would affect their independence, which was guaranteed under the Constitution. This is all the more important now that the power of judicial review on constitutional grounds is entrusted to those judges.

15 Legal education and training had been largely uncritical of unjust legal dogma and practice. Those few academics who had dared to speak out had received insufficient support from their colleagues and institutions. This was not, however, particularly unusual in international terms and students needed to be familiar with current legal rules in order to be equipped to practise law.

16 At no stage, had there been any question of direct interference with the administration of justice by the executive or the legislature, in particular where disputes before the courts were concerned.

17 In a nutshell, it was argued that an administration of justice and a legal order that preserved a limited degree of impartiality and independence was better, in all circumstances, than a legal system that was completely subservient to the will and whims of the political masters in Parliament.

The counter argument

18 Naturally, submissions from bodies such as the BLA, LHR, the LRC and NADEL took issue with these propositions at almost every turn. For them, lawyers and the courts under apartheid, with very few and notable exceptions, had co-operated in servicing and enforcing a diabolically unjust political order. They argued that it made no sense to invoke a defence of parliamentary sovereignty. The validity of such a defence depended on at least a substantial degree of democracy in the political order, as well as a basic respect for the rule of law as a direct or necessary adjunct to legislative omnicompetence. Neither prerequisite was present to any significant degree in South Africa. Judicial independence was a myth that had been exploded in the daily experience, particularly in the magistrates’, but also in the superior courts. Moreover, several meticulous empirical studies since the mid-1970s had demonstrated a judicial partiality towards the legislature and executive. The practising and teaching legal profession, it was stated, had willingly acquiesced in apartheid’s subversion of whatever sense of justice may have hitherto been part of the common law and the legal system. Those practitioners and academics who dared challenge the political and/or legal order were not only not supported by their colleagues but were, more often than not, ostracised by them.

19 As a result, it was alleged, the basic fabric of the legal system had been subverted and become rotten with injustice. In order to begin to reverse this process and to lay the basis for the new constitutional order, a public reckoning and apology by the ‘old-order’ lawyers was essential. Arguments about the erosion of judicial independence held no water when it was judicial action in the past which was being scrutinised, and when such independence was, in any event, more ritualistic than real.

20 These extraordinarily brief summaries of the positions presented and argued at the hearing cannot hope to portray the extent and complexity, littered with examples, of most of the submissions. Taken as a whole, the submissions and oral testimony form a valuable archive that bears close examination as one set of versions of the past. It will be for others to analyse and debate the arguments in the detail that they deserve.2 For present purposes, the chapter proceeds to make certain assumptions and to draw conclusions concerning the above arguments, and to consider their impact on the way forward for the administration of the law and justice in South Africa.