TRC Final Report

Volume 4

Chapter 4

Subsection 4

35 The Commission believes that this was the position during the apartheid years. Many of those who appeared at the hearings and who made submissions acknowledge this to have been the case, although several qualified such admissions.

36 Yet, for all that this was the overwhelming pattern of the law and lawyers’ conduct under apartheid, there were always a few lawyers (including judges, teachers and students) who were prepared to break with the norm. These lawyers used every opportunity to speak out publicly and within the profession against the adoption and execution of rules of law that sanctioned arbitrary official conduct and injustice. They explored the limits of their forensic skills in defending those on trial for offences in terms of such legislation, or in arguing for the invalidity of vague or unreasonable administrative action. They worked ceaselessly to prepare the cases of those targeted by the state, often in trying conditions and for little material reward. They advised and educated those in the community most vulnerable to official excesses, such as the rural poor and workers, through advice offices and religious bodies. They challenged their students to confront the relationship between law and justice and to translate their ideals into practice. They forswore the comforts of commercial practice for the sake of the upliftment of those excluded from all forms of power. They exercised their judicial discretion in favour of justice and liberty wherever proper and possible.

37 These actions demanded courage, strength, perseverance and clarity of purpose. There were not many in each generation who chose this lonely path, but there were sufficient of them and they were influential enough to be part of the reason why the ideal of a constitutional democracy as the favoured form of government for a future South Africa continued to burn brightly throughout the darkness of the apartheid era. Had their number been greater, had they not been so harassed and isolated by both government and the profession, the moral bankruptcy of apartheid would have been more quickly and starkly exposed for the evil that it was.

38 In a sense, those both inside the country and abroad who might have been embarrassed by the gross racism and exploitation of apartheid could seek some comfort in the semblance of an independent legal system. This ‘justification’ would not have been possible had even a strong minority of the legal profession united to strip the emperor of his clothes.

39 In the light of the above, should the lawyers who fought for justice against all odds have abandoned their cause for fear that their actions would lend credibility to such a semblance of independence? This question was, of course, ever present and sometimes furiously debated, going to the heart of much of the jurisprudential controversy that surrounds the fundamental issue of ‘what is law, and how does it relate to justice?’

40 The Commission does not intend to enter the lists in this regard, but simply states its conclusion as briefly as possible. While the Commission does believe that substantive resistance to the injustice of apartheid by a significant number of lawyers would have undermined its effectiveness and betrayed its reliance on brute force — even if only through a prosecutorial authority reluctant to act and a judiciary uncomfortable with its complicity in injustice — in the light of the reality that those who chose to resist were relatively so few, the Commission finds that the alleviation of suffering achieved by such lawyers substantially outweighed the admitted harm done by their participation in the system.

41 Much was made, particularly by some of the judges who made submissions, of their relative impotence in the face of the exercise of legislative power by a sovereign Parliament. In doing so, reference was often made to the position of the judiciary in other parts of the British Commonwealth and Britain itself. The Commission regards this as a flawed argument, only partially of assistance. As argued so impressively by Dicey more than a century ago, parliamentary sovereignty and the rule of law work hand in hand and are premised on a political system that is fundamentally representative of all the people subject to that Parliament. This situation never applied in South Africa: not only was representative (and responsible) government conferred effectively only on the white inhabitants of the Union in 1910 (at maximum less than 20 per cent of the population), but South African political and legal life was never characterised by that unwritten sense of ‘fair play’ which is so much a part of the native Westminster tradition.

42 In other words, it is not enough for South African lawyers to parade the sovereignty of Parliament as if that alone explained (and excused) their conduct. The social contract which has for so long been the foundation for such sovereignty in the United Kingdom (and to an extent in Canada, Australia and New Zealand) was absent in South Africa, therefore requiring something more by way of response (and responsibility) from the judiciary and the legal profession. The point has been made that judges had a choice, and it has been suggested that it was feasible for them to have heightened their alertness as to government abuse of powers in the power vacuum created by the partially-representative legislature and the absence of basic fairness in the citizen-state relationship.

43 It could be argued that the die was cast immediately after Union by a judiciary which acquiesced in segregationist policies, so that by 1948 (and certainly 1960), the courts were locked into the overwhelmingly passive mindset that characterised their judgements in the face of brutal injustices of apartheid. While this may be partially true, the horrific extremes to which Parliament and the executive went to implement apartheid should surely have provided the basis for judges and practitioners, had they wished to do so, to resist such encroachments on basic rights and fairness, using the skills and knowledge which they manifestly possessed and arguing from common-law principles. And if such a concerted stand had moved the government formally to curtail the jurisdiction of the courts, then perhaps the degeneracy of its policies would have been laid bare earlier and more devastatingly.

44 Again, those judges who made submissions justified their failure to appear at the hearing on the basis that such ‘accounting’ would somehow negatively affect their independence and would therefore harm the institution of the judiciary in its current role in South Africa’s constitutional democracy. Although the Commission unreservedly accepts the need for the independence of the judiciary, especially under the present constitutional dispensation, it finds this approach extremely disappointing and deeply regrettable for the following reasons:

a The Commission fails to understand how an appearance before the Commission and the answering of questions on full submissions already made in writing by the most senior and respected judges would somehow undermine such independence. The terms of the invitation to appear (see above) emphasised deliberately that the proceedings were not about establishing guilt or reopening a particular case or group of cases. In any event, the Commission’s brief is limited to the period from 1960 to 1994. An exploration of judicial conduct at that time could hardly be said to impact on the current judiciary operating in such markedly different constitutional circumstances.

b Furthermore, it should be quite obvious that the notion of a body such as the Truth and Reconciliation Commission, mandated to call on all South Africans to account for their conduct during apartheid’s worst excesses, is a unique event which would be unlikely to create some kind of precedent. If this was to be taken seriously as an argument, then the Judicial Services Commission provided for in the interim and final Constitutions ought also to be impeachable, for the reason that it has general powers to oversee the administration of justice and call wayward judges to account.⁶ It is also quite clear that it was precisely the gruesomeness of atrocities committed during the period under review which warranted the establishment and authority of the Commission, and the elimination of such injustice (at least at the level of official policy) makes the idea of some kind of future investigative and reporting tribunal extraordinarily remote.

c The failure of the judiciary to appear is all the more to be lamented when the historic significance of the Commission is considered, as well as its envisaged role in the transformation of South African society into a caring, humane and just one. The Commission was thus denied the opportunity to engage in debate with judges as to how the administration of justice could adapt to fulfil the tasks demanded of it in the new legal system; not so as to dictate or bind them in the future, but so as to underline the need urgently to re-evaluate the nature of the judiciary. In some ways, it seems that the judicial non-appearance indicated a reluctance to consider alternatives to the conventions of the past, many of which might be conducive to justice, but which would clearly hinder the attainment of the type of society envisaged by the Constitution.

45 In his paper delivered at a meeting of the International Commission of Jurists (ICJ) held in South Africa recently, the Special Rapporteur to the United Nations on the Independence of Judges and Lawyers, Dato Cumaraswamy, considers judicial accountability. He says:

In a democracy, not one single public institution must be exempt from accountability…. However, judicial accountability is not the same as the accountability of the executive or the legislative or any other public institution. This is because of the independence and impartiality expected of the judicial organ.

46 The Commission finds that an appearance before the Commission in such special circumstances would have demonstrated accountability and would not have compromised the independence of the judiciary. History will judge the judiciary harshly. Its response to the hearing has again placed the questions of what accountability and independence mean in a constitutional democracy in the public domain for debate.

47 The Commission has a good deal of understanding for the ‘collegiality’ argument, which says that the non-appearance by those judges willing in principle to appear will create greater mutual trust among the ‘old order’ and the ‘new order’ judges and so advance the cause of constitutional democracy. However, such benefits, if achieved in this way, are outweighed by the powerful symbolic effect of the judiciary showing themselves publicly and humbly to be accountable. For this is what the hearing was about and what the Constitution demands of a judiciary that is granted the onerous power of constitutional review. It is required that the judiciary display some sense of being able to balance its necessary and justifiable demand for independence with a measure of accountability to the South African nation it serves.

48 The Commission deplores and regrets the almost complete failure of the magistracy to respond to the Commission’s invitation, the more so considering the previous lack of formal independence of magistrates and their dismal record as servants of the apartheid state in the past. They and the country lost an opportunity to examine their role in the transition from oppression to democracy.