JOHANNESBURG October 22 1997 - SAPA


The South African judiciary failed to oppose human rights abuses because of the conservatism of its judges, many of whom supported the apartheid policies of the National Party government, the General Council of the Bar of South Africa said.

It made a 211-page, three-volume submission this week to the Truth and Reconciliation Commission on the legal system's pivotal role in apartheid human rights abuses.

The submission forms part of the TRC's public hearings next week on the legal profession during apartheid.

In its submission, the Bar examined the moral dilemma of judges operating within an unjust legal system, and the failure to effectively oppose government abuses because of conservatism and support among the judges for the policies of the day.

The Bar criticised politically motivated appointments to the Appellate Division, which ensured convictions of the NP's political opponents and upheld the imposition of states of emergency.

It also criticised magistrates and attorneys-general as civil servants unlikely to take positions opposing apartheid policies.

"We do ot subscribe to the view that judges were powerless in the face of the doctrine of parliamentary sovereignty," the Bar said.

"South African courts were slow to respond to the blatant abuse of administrative power which characterised the apartheid era. Our courts failed to impose rigorous standards on officialdom, particularly in the field of legislation involving race and security."

The Bar said there was "undoubtedly" an attitude among many judges, particularly at critical stages in the 1960s and the mid-1980s, that there was a serious threat to the security of the state and that this justified extreme measures in response.

"Too few judges were sensitive, and by this we mean publicly and openly sensitive, to the injustices and abuses of human rights which apartheid generated."

Because of "innate conservatism or even general support for the policies of the day, the result was a judiciary which exhibited greater concern for the technicalities of law than for issues of human rights".

This attracted criticism in 1968 from the International Commission of Jurists, which said that in spite of a number of courageous decisions the overall impression of the South African judiciary was that it was prepared to adopt an interpretation which made the apartheid government's task easier rather than to defend the liberty of citizens and to uphold the rule of law.

In 1988, the commission's verdict was more severe. It said many South African judges made decisions which seemed inhuman and had imposed excessively harsh sentences, especially in cases of children charged with public violence.

"We are not impressed by th argment that the judges are powerless in the face of government security restrictions.

"If a judge remains on the Bench in such a repressive regime there can be no excuse for failing to exercise his choice in favour of individual liberty, and whereas some judges have done justice in such cases in recent times, the majority of the South African Bench have failed to do so," the jurists said.

The Bar said part of this inaction could be ascribed to the appointment of judges, which lay entirely in the hands of the Minister of Justice. The power to make appointments was a political power and it was exercised by politicians in a political way.

The appointment of judges for political reasons and not on merit was subversive of the legal system. This was aggravated by promotions to the Appellate Division (now the Supreme Court of Appeal) which were similarly motivated by political considerations.

"The problem can be compounded by the refusal to elevate to the highest court, and to appointment as chief justices, judges whose political sympathies are opposed to the government. All four of those happened during the apartheid years. South Africa paid the penalty."

The Bar noted that the apartheid government also tried to convert the Supreme Court Bench into an adjunct of the Department of Justice composed of civil servants.

Very few judges were selected to preside in criminal trials involving state security. The Appellate Division under Chief Justice CJ Rabie was an "emergency team" dominated by five judges - Rabie, Hefer, Viljoen, Joubert and JJA Vivier.

Author S Ellman in his research noted that judges who differed from the Appellate's decisions never sat on another emergency case. Ellman was left with the inference the judges were chosen to bring unanimity to decisions and to exclude dissenting voices.

The Bar said: "The decision of the our highest court dealing with emergency powers did much to tarnish the image of the judiciary. More importantly, they did little to alleviate the harshness of emergency powers."

Criticism of the judges was magnified in relation to magistrates. These were civil servants who were instructed not to criticise the police or to embarrass government ministers or departments when giving judgments.

And while attorneys-general were supposed to be politically independent, they were part of the civil service and were unlikely to be promoted if they took a stand opposing the government's policies.

The AGs vigorously prosecuted cases with political overtones, seemingly as part of a responsibility to uphold the state at all costs, the Bar submited.

South African Press Association, 1997
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