TRC Final Report

Volume 4

Chapter 4

Subsection 2

■ ASSUMPTIONS

21 In reaching its findings, the Commission assumed the validity of certain principles and concepts, although aware that almost every one of them is a matter for extensive debate, and that such debates are not easily resolved. One must also acknowledge the benefit of hindsight, but the Commission feels sure that this factor has not made a material difference either to the assumptions or conclusions. It is not expected that the views expressed will be uncontroversial, for this is the nature of the exercise and the issues being reviewed. Nonetheless, in the starkness of the apartheid-context and in the light of the debates on such issues which took place in legal circles and the popular media throughout this period3, few lawyers and certainly no judges could claim to have been unaware that the role of law and lawyers under apartheid was at least open to question if not criticism.

22 The following appear to be assumptions about that role that enjoy relatively widespread acceptance, although the legal establishment was dismissive of them in the past and may still resist them today.

23 First, judges were able to exercise a choice in almost all circumstances, although in some cases the range of options might have been extremely narrow. The inherent ambiguity of language and the diversity of factual circumstances with which judges were confronted allowed them a degree of latitude in deciding what the law was (even if it was cast in statutory form, and the more so if a part of the common or customary law) and in applying such legal rules to the concrete situations before them. Choices of a different and more far-reaching nature were available to legal practitioners (despite the much-vaunted ‘cab-rank’ approach said to apply at the Bar), to law teachers and students.

24 Second, all lawyers, as human beings, bring to their professional lives the baggage of their personal past, to which is added the communal culture so characteristic of the Bench and Bar, and to a lesser extent the side-Bar and academy. The values thus inculcated play an important part in shaping individual and corporate responses in situations where choices have to be made manifest in the courts by expressions of judicial policy. This is a proper part of the judicial process. It does, nevertheless, provide insights into underlying values.

25 Third, in the rare circumstances where little or no judicial choice exists, certain steps short of resignation are open to the judge. These include criticism of legislative policy both on and off the Bench, within the limits of propriety. Such limits are largely determined by the judicial oath of office and the doctrine of the separation of powers. In the case of South African judges, the oath demanded that they administer justice “to all persons alike without fear, favour or prejudice and in accordance with the law and customs of the Republic”.⁴ Obviously central to the maintenance of a semblance of justice in the face of legislated executive injustice would be the meaning given to ‘customs’ (which could have been extensively interpreted to include the practices, and thus interests, of all the people of the Republic), as well as the prominence and scope given to the common law presumption of statutory interpretation (such as that the legislator intended minimal deprivation of rights and liberty and that its legislation should impact as equally as possible, and did not intend retrospective operation of statutes).

26 Fourth, the doctrine of the separation of powers naturally applied imperfectly in a system of government based on Westminster. Although the judiciary was formally independent of the legislature and executive once appointed, the very appointment process (which was in the almost-complete gift of the executive) as well as the execution of court decisions (again dependent on administrative co-operation) severely limited substantive independence. This inhibited the will and authority of the judiciary to exercise a real checking and balancing of the other two branches of government.

27 Fifth, the judiciary is part of government, a vital cog in the day-to-day execution of policy and enforcement of current law. Yet, the courts fulfil another function. As Lord Devlin has said, “the social service which the judge renders to the community is the removal of a sense of injustice”. Such a function contributes to stable order and peaceful government, but it cannot be wholly illusory. On occasion, the judiciary must be permitted to overrule executive action or temper legislative pronouncements that operate too unjustly. There needs to be substance to the notion of judicial independence, otherwise the courts will be seen as the mere obedient servants of the other branches of government. It is precisely this ‘space’, available to the judiciary and to lawyers, which can be legitimately and legally used to preserve basic equity and decency in a legal system. As so powerfully catalogued by Richard Abel⁵, creative and courageous lawyering (and judging) can be deeply influential in the body politic. Whether such initiatives became possible in the late 1970s and 1980s must be questioned.

28 Sixth, the appearance of judicial independence and adherence to legalism under the guise of ‘rule by law’ serves as a powerful legitimating mechanism for the exercise of governmental authority. It is all the more useful to a government which is pursuing legislative and executive injustice to be able to point to superficial regulation by the judiciary, while being able to rely on the courts not to delve too deeply in their interpretation and enforcement of law.

29 Seventh, there is an interdependence between all parts of the legal profession, such that most of the references to the judiciary above can be applied to the advocates, attorneys, teachers and students to some degree. No one who participates in an evil system can be entirely free of responsibility for some injustice; although it is possible for the good achieved by some to outweigh the negative aspects of their participation. Judge Edwin Cameron in his submission stated that:

The overriding point is thus that all lawyers and judges, whatever their personal beliefs and the extent of their participation, were complicit in apartheid… but this does not conclude the moral debate about the role of lawyers; nor does it mean that there were no degrees of complicity or moral turpitude in the legal enforcement of apartheid.

30 Law and justice are by no means co-extensive although, at a fundamental level, their interests and constituent elements are likely to coincide, and although the ultimate objective of a legal system (to endure) must be a quest for justice. An uncritical acceptance of promulgated rules of law is unlikely to contribute to the achievement of justice in any more than a formal sense.