TRC Final Report

Volume 5

Chapter 6

Subsection 30

THE COMMISSION FINDS THAT:

THE MANAGEMENT OF THE MAINSTREAM ENGLISH LANGUAGE MEDIA OFTEN ADOPTED A POLICY OF APPEASEMENT TOWARDS THE STATE, ENSURING A LARGE MEASURE OF SELF-CENSORSHIP. THE ROLE OF THE NEWSPAPER PRESS UNION – NOT LEAST CONCERNING SECURITY MEASURES – REFLECTS A WILLINGNESS BY THE MAINSTREAM MEDIA NOT TO DEAL WITH MATTERS THAT EXPOSED THE ACTIVITIES OF THE SECURITY FORCES. THE AFRIKAANS MEDIA, WITH RARE EXCEPTIONS, CHOSE TO PROVIDE DIRECT SUPPORT FOR APARTHEID AND THE ACTIVITIES OF THE SECURITY FORCES, MANY OF WHICH LED DIRECTLY TO GROSS VIOLATIONS OF HUMAN RIGHTS. THE RACISM THAT PERVADED MOST OF WHITE SOCIETY PERMEATED THE MEDIA INDUSTRY.

The judiciary

158 The longevity of apartheid was in part due to the superficial adherence to the ‘rule by law’ by the National Party, whose leaders sought and relied on the aura of legitimacy which ‘the law’ bestowed on unjust apartheid rule. During the period 1960 to 1990, the judiciary and the magistracy and the organised legal profession collaborated, largely by omission, silence and inaction, in the legislative and executive pursuit of injustice. Furthermore there are examples where they and the legal profession actively contributed to the entrenchment and defence of apartheid through the courts. Examples of such acts include:

a Adherence to race-based systems as evidenced by the Pretoria Bar’s refusal to admit black members and other bar councils’ dishonourable stance towards black colleagues seeking chambers in ‘white group areas’ through a race-based permit system.

b Collusion with the police regarding the torture of detainees and those in police custody, as evidenced by: prosecutors who knowingly colluded with police who had been involved in torture of accused persons; judges and magistrates who routinely rejected evidence of assault and torture – even when this was supported by medical evidence – and accepted uncritically the evidence of police witnesses over that of the accused; judges and magistrates who uncritically accepted the evidence of police witnesses at inquests, and routinely found no one to be responsible for injuries and deaths in detention.

c Failure to take effective measures to make justice accessible to those who could not afford it and those who were involved in anti-apartheid activities, for fear of social ostracism or loss of lucrative commercial clients. This is contrasted by the willingness of advocates and attorneys 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. Similarly, organised professional bodies were frequently obsequious in their attitudes to government policies, striking off and hounding those of their members who fell foul of the political system, or who chose to confront it.

d The participation of judges in producing the highest capital punishment rate in the ‘western’ world, an execution rate which impacted overwhelmingly on poor black male accused.

THE COMMISSION REJECTS THE ARGUMENT MADE PARTICULARLY BY JUDGES OF THEIR IMPOTENCE IN THE FACE OF THE EXERCISE OF LEGISLATIVE POWER BY A SOVEREIGN PARLIAMENT. THE COMMISSION REGARDS THIS AS A FLAWED ARGUMENT ON THE BASIS THAT PARLIAMENTARY SOVEREIGNTY AND THE RULE OF LAW WORK HAND IN HAND, AND ARE PREMISED ON A POLITICAL SYSTEM WHICH IS FUNDAMENTALLY REPRESENTATIVE OF ALL THE PEOPLE SUBJECT TO THAT PARLIAMENT. THIS SITUATION NEVER APPLIED IN SOUTH AFRICA, AND THE SITUATION THEREFORE REQUIRED SOMETHING MORE BY WAY OF RESPONSE FROM THE JUDICIARY AND THE LEGAL PROFESSION.

JUDGES HAD A CHOICE OTHER THAN THE ULTIMATE BUT HONOURABLE COURSE OF RESIGNATION FROM THE BENCH. THEY COULD HAVE RESISTED ENCROACHMENTS TO BASIC RIGHTS AND FAIRNESS, USING THE SKILLS AND KNOWLEDGE WHICH THEY POSSESSED, ARGUING FROM COMMON-LAW PRINCIPLES. A CONCERTED STAND BY A SIGNIFICANT NUMBER OF JUDGES COULD HAVE MOVED THE GOVERNMENT FORMALLY TO CURTAIL THE JURISDICTION OF THE COURTS, THEREBY LAYING BARE THE DEGENERACY OF ITS POLICIES MORE DEVASTATINGLY.

THE COMMISSION FINDS THAT BOTH THE JUDICIARY AND THE MAGISTRACY AS WELL AS THE ORGANISED LEGAL PROFESSION WERE LOCKED INTO AN OVERWHELMINGLY PASSIVE MINDSET WHICH CHARACTERISED THE JUDGEMENTS OF THE BENCH IN THE FACE OF INJUSTICES OF APARTHEID, AND THE REACTION OF THE PROFESSIONS TO SUCH INJUSTICES.