TRC Final Report

Volume 4

Chapter 4

Subsection 3

■ FINDINGS

31 The hearing and written submissions to the Commission touched on all the above matters and many more. In setting out the findings below, the Commission merely accentuates those issues that seem to be relatively generally acknowledged in legal circles today, in a post-apartheid context. The absence of findings on other matters is not intended to signify their irrelevance, but is rather a reflection of the magnitude of the task that a comprehensive response would entail. As was stated in the invitation to participate in this process, it bears repetition that the findings that follow do not imply the ascription of guilt to any one lawyer or group of lawyers. The purpose of this exercise is rather to draw on the lessons of the past so that the legal process can be transformed in the future, the more surely to attempt to avoid the tragic injustice of apartheid-at-law.

The Commission finds that:

32 Part of the reason for the longevity of apartheid was the superficial adherence to ‘rule by law’ by the National Party (NP), whose leaders craved the aura of legitimacy that ‘the law’ bestowed on their harsh injustice. Significantly, this state of affairs was not achieved in the early stages of NP rule. It began after the coloured vote crisis in the mid-1950s, when the restructuring of judicial personnel and the Appellate Division took effect, and the white electorate lent its support to the constitutional fraud resorted to by the government to circumvent the entrenched clauses of the South Africa Act. It was manifestly abandoned when emergency executive decree became the chosen medium of government towards the end of formal apartheid – from the mid-1980s – when a climate of ‘state lawlessness’ prevailed and the pretence of adherence to the rule of law was abandoned by the Botha regime.

33 In the intervening thirty years, however, the courts and the organised legal profession generally and subconsciously or unwittingly connived in the legislative and executive pursuit of injustice, as was pointed out by a few at the time and acknowledged by so many at the hearing. Perhaps the most common form of subservience can be captured in the maxim qui tacet consentire (silence gives consent). There were, nevertheless, many parts of the profession that actively contributed to the entrenchment and defence of apartheid through the courts. The Pretoria Bar, for example, refused to admit black members and only passed an apology for its racism in October 1997.

34 There are many other examples:

a Prosecutors who knew that the police had used brutal means to extract information from suspects and then assisted such interrogators from being questioned too closely on their methods.

Captain Jacques Hechter, a police officer who applied for amnesty for his part in a number of gruesome murders testified before the Commission that, prior to appearing in court, he was called in by the prosecutor and given the questions that would be put to him in court, together with the answers he should give. He would also be coached on what to say.

André Hendrickse, a prosecutor in the Cape, noted that his refusal to prosecute persons under the Group areas Act was because there was an official moratorium on prosecutions. The pressure that was placed on him by his superior because of pressure by the National and Conservative Parties eventually led to his resignation.

b Attorneys-general who too easily launched prosecutions or granted ‘no-bail’ certificates on flimsy evidence.

c Magistrates who uncritically granted police search and seizure warrants, and who conveniently found no one responsible for injuries and deaths in detention at inquests. Priscilla Jana noted in her submission that:

There were several inquests where nobody was found responsible … the inquest of Ernest Dipali when he was found hanging in his cell, the inquest of Sipho Motsi, a COSAS [Congress of South African Students] leader who was arrested and found dead a few hours later.

d Attorneys who failed to accept an unpopular political person as a client, perhaps for fear of social ostracism or the loss of lucrative commercial clients.

e Advocates who were willing to appear for the government in civil actions where some of the basic building blocks of apartheid, such as racial classification or influx control or group areas, were being attacked as the unreasonable and invalid exercise of executive discretion.

f Law teachers who chose to concentrate on ‘safe’ areas of the law or to teach in such a way that no critical ability was imparted to the students.

g Students who chose to be blinded by the glamour and material returns of the conventional mainstream of the profession, neglecting his or her potential role as a fighter for justice for all in South Africa.

h In the greatest injustices of all, judges who too easily made sense of the illogical and the unjust in legislative language, and who too quickly accepted the word of the police or official witness in preference to that of the accused. Kathleen Satchwell in her submission deals extensively with the case of Linda Mogale, her client who was assaulted and tortured in detention. Despite evidence to this effect, the judge nevertheless rejected “as impossible” a process of police violence and system of intimidation.

i The judiciary, which unthinkingly allowed judicial policy to be influenced by executive dictate or white male prejudice; which was intent on maintaining and protecting the status quo; which willingly participated in producing the highest capital punishment rate in the ‘Western’ world by the mid-1980s and an execution-rate that impacted overwhelmingly on poor black male accused. In her submission to the Commission, Paula McBride deals with a number of cases to illustrate this point.

j The organised professional bodies which were obsequious in their attitudes to government policies, hounding those of their members who chose to buck the system politically. The GCB stated in its submission that the basis for striking Bram Fischer off the role of advocates was that he had dishonourably breached his undertaking to the court to stand trial. They dismissed suggestions that political considerations had any part in the application. Whilst the GCB apologised to the family, the apology was qualified and besmirches their conduct even more. Indeed, the Fischer family testified that the striking off of their father was done with indecent haste and was regarded by Bram as the “worst professional and personal betrayal he experienced”.

k The organised profession took no effective initiatives to make the administration of justice more accessible to those who could not afford it, not at least until apartheid’s days were numbered. Their complacency in the face of the challenges thrown up by government injustice internally, and their defensiveness in international forums when foreign lawyers’ organisations dared criticise, are matters of public record.