Sergeant at the bar
Now that the dust is beginning to settle on the Truth and Reconciliation Commission (TRC), probably because critics have begun to read the actual text of the report, it has become clear that the work of the TRC holds much of consequence for the future of our society. To take but one example close to the home of the Bar and Side Bar, the commission has made severe criticisms of the judiciary in particular and the profession in general.
It suggests that the profession adhered to race-based systems, such as the Pretoria Bar (under the leadership, inter alia, of William de Villiers), colluded with the police regarding the torture of detainees (the judiciary and magistracy routinely rejected compelling evidence of police assault and torture), represented the government in race classification, influx control and group areas cases (thereby rejecting the taxi-cab principle by which members of the Bar take any case offered to them, no matter how reprehensible the client, provided that they are available), and, in the case of the judiciary, helped to produce the highest capital punishment rate in the “Western world”.
Those who were privileged to hear the tributes to John Didcott at the special hearing of the Constitutional Court last week will doubtless agree with the TRC that judges were not as impotent as they claimed, and that they could have resisted “encroachments to basic rights and fairness, using the skills and knowledge which they possessed, arguing from common- law principles”. If Didcott was able to do it, why not others, was perhaps the dominant implication of the tributes paid to him in the court!
The commission has issued a series of recommendations to ensure that such “passivity” in the face of oppression should not happen again. It suggests that judges and magistrates be trained (separately) in “the values of the new South African Constitution and in requirements of international law and standards”, including “gender-specific abuse and appropriate responses”.
It recommends that imbalances in the racial and gender composition of judges in the high court be urgently addressed, and that a fast-track judicial training programme for black and women lawyers, for those who aspire to judicial appointment, be introduced. It also recommends the appointment of magistrates from private practice.
These findings and recommendations are even more pertinent as a consequence of the brouhaha surrounding the recent spate of judicial appointments. Complaints about falling standards become problematic when the TRC findings are read. How many ill- suited people were appointed in the “good old days”, some of whom like Van Dyk, De Villiers and Lategan are still around, and where was the sustained outcry then to those appointments from either the profession or academics?
However, read in this context, the TRC recommendations are equally critical of the new developments. If a fast-track procedure had been introduced in 1994 as the commission has now suggested, we would have been far further down the road of redressing the racial and gender imbalances.
Arguably the most important issue relates to the appointment of fiercely independent people. For this reason, the allegations that political credentials are required to make the grade with the Judicial Service Commission need to be rebutted.
In similar fashion, a recent issue of Noseweek has floated around the country and suggests that there is a remarkable relationship between previous legal connections with the minister of justice and appointment to high public legal office. This calls for an explanation, or at least a better commitment on the part of the commission and the minister to make decisions and the reasons for those decisions public, so that the merits can be assessed.
Much was said about the failure of the TRC to distinguish between the evil of an elected government and the abuses of liberation movements. In my view, there is a need for such a distinction. But that means that the ploy of political equivalence should not be available to the new government. The old nepotism and Broeder connection should not be replicated in the new appointments; hence the need for maximum openness in the process from both the commission and the minister.