Andrews, Penny --- "Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order by David Dyzenhaus; A Grand Exercise in Forgiveness, or Justice Held Hostage to Truth? South Africa's Truth and Reconciliation Commission" [2000] MelbULawRw 8; (2000) 24(1) Melbourne University Law Review 236

[1] Kader Asmal, Louise Asmal and Ronald Roberts, Reconciliation through Truth: A Reckoning of Apartheid’s Criminal Governance (2nd ed, 1997) 5.

[2] Constitution of the Republic of South Africa Act 1996 (South Africa) (‘Constitution’).

[3] Allister Sparks, Tomorrow Is Another Country: The Inside Story of South Africa’s Negotiated Revolution (1995).

[4] See Karen Cavanaugh, ‘Emerging South Africa: Human Rights Responses in the Post-Apartheid Era’ (1997) 5 Cardozo Journal of International and Comparative Law 291.

[5] See Constitution ch 2. The Constitution provides, for example, for the establishment of the Human Rights Commission, the Gender Commission and the Public Protector: see Constitution ch 9.

[6] The TRC was established by the Promotion of National Unity and Reconciliation Act 1995 (South Africa) s 2. See Piet Meiring, Chronicle of the Truth Commission (1999) 10.

[7] National Unity and Reconciliation, Epilogue to the Constitution.

[8] See Priscilla Hayner, ‘Fifteen Truth Commissions — 1974 to 1994: A Comparative Study’ (1994) 16 Human Rights Quarterly 597.

[9] These institutional hearings were useful in many respects, not least because they highlighted the ‘normalcy’ and banality of institutionalised racism, its evolution into a system of unquestioned acceptability in all areas of South African life.

[10] For an interesting discussion of this question see Asmal, Asmal and Roberts, above n 1.

[11] Promotion of National Unity and Reconciliation Act 1995 (South Africa) s 20.

[12] Azanian Peoples Organisation v The President of the Republic of South Africa (1996) 8 BCLR 1015 (Constitutional Court).

[13] For an interesting exploration of these matters, see Colin Bundy, ‘Truth ... or Reconciliation’ (1999) 14(4) Southern Africa Report 8.

[14] I use the term ‘black’ here to refer to Indians, ‘Coloured’ (mixed-race) people and Africans.

[15] See Jeremy Sarkin, ‘The Trials and Tribulations of South Africa’s Truth and Reconciliation Commission’ (1996) 12 South African Journal on Human Rights 617.

[16] For the most poignant, interesting and insightful account of the Commission’s proceedings, see Antjie Krog, Country of My Skull (1998).

[17] Stephen Friedman, ‘Commission’s Impartiality Under Fire’, Business Day (Johannesburg, South Africa), 23 February 1998, 11 cited in Dyzenhaus, Judging the Judges, below n 18, 11.

[18] David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (1998).

[19] Specifically, two questions were put to the actors in the legal system:

How was it that you implemented without protest, and often with zeal, laws that were so manifestly unjust? And how was it that when you had some discretion as to how to interpret or apply the law, you consistently decided in a way that assisted the government and the security forces?

Ibid 27.

[20] Dyzenhaus, Judging the Judges, above n 18, 29. The victims’ hearings were supposed to allow victims to tell their stories, and in the process uncover the truth. Often the anguish of the victims’ testimony led to open hostility, anger and frustration. See Timothy Ash, ‘True Confessions’ (1997) 44(12) New York Review of Books 33, 34.

[21] Dyzenhaus, Judging the Judges, above n 18, 29–30.

[22] See generally John Dugard, Human Rights and the South African Legal Order (1978).

[23] Hayner, above n 8, 613–17, 621–3, 627–9. For a detailed outline of the human rights struggle in Latin America, see Penny Lernoux, Cry of the People (1980).

[24] See Albie Sachs, Justice in South Africa (1973); see also C R M Dlamini, ‘The Influence of Race on the Administration of Justice in South Africa’ (1988) 4 South African Journal on Human Rights 37.

[25] This is not to suggest that the majority of black South Africans accepted the status quo. However, with black political opposition effectively stifled by the late 1950s through the imprisonment and banishment of its leaders, the system could be administered unfettered by widespread opposition.

[26] This point about beneficiaries of apartheid has been raised in the context of the victims’ hearings, where the question of the responsibility and accountability of ordinary white South Africans, as beneficiaries of apartheid, was examined. The parameters of this paper do not allow for an elaboration of these questions, but they point to the acquiescence of white South Africans in this abhorrent system, a collusion made possible by the trappings of legality. For a discussion of these issues, see Krog, above n 16, 144–7.

[27] David Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (1991).

[28] Dyzenhaus recalls a particularly egregious episode on the part of the Johannesburg Bar Council, which moved swiftly to disbar a member, Bram Fischer, whom the Government had labelled a communist, and who was subsequently charged and imprisoned. It is a tale of great sadness because Fischer died of cancer after the prison authorities displayed gross indifference to his predicament. See Dyzenhaus, Judging the Judges, above n 18, 129–35.

[29] Only two law schools made submissions, and three Deans of law schools wrote letters to the TRC. Only two Attorneys-General and one prosecutor made written submissions.

[30] Arthur Chaskalson, ‘Law in a Changing Society — The Past Ten Years: A Balance Sheet and Some Indicators for the Future’ (1989) 5 South African Journal on Human Rights 293.

[31] Ibid 294; Dyzenhaus, Judging the Judges, above n 18, 15.

[32] Dyzenhaus, Judging the Judges, above n 18, 16.

[33] Ibid.

[34] Ibid 17–19.

[35] See David Hemson, ‘Trade Unionism and the Struggle for Liberation in South Africa’ in Martin Murray (ed), South African Capitalism and Black Political Opposition (1982) 685, 685–737.

[36] For a detailed account of the role played by lawyers during the struggle against apartheid, see Richard Abel, Politics by Other Means: Law in the Struggle against Apartheid, 1980–1994 (1995); see also Penelope Andrews, ‘A Resource for Justice: South Africa’s Legal Resources Centre’ (1995) 2 East Africa Journal of Peace and Human Rights 53.

[37] See Stephen Ellmann, ‘Law and Legitimacy in South Africa’ (1995) 20 Law and Social Inquiry 407.

[38] For a compelling account of the experiences of black lawyers in South Africa, see Kenneth Broun, Black Lawyers, White Courts (2000).

[39] See Stephen Ellmann, In a Time of Trouble: Law and Liberty in South Africa’s State of Emergency (1992).

[40] Dyzenhaus, Judging the Judges, above n 18, ch 2.

[41] Because most judges did not make submissions (even though the submission of the former Chief Justice was made on behalf of the judiciary) it is unclear just how deep and widespread the nervousness was. By Dyzenhaus’ own admission, the hearings often took the form of recriminations; it was arguable that this would not have been conducive to enhancing credibility, but rather the opposite.

[42] Only three days were allocated to the legal hearings.

[43] As it turns out, there were eight formal submissions from judges (including one joint submission from Judge A Chaskalson (President of the Constitutional Court), Judge I M Mahomed (Chief Justice of the Supreme Court of Appeal), Judge P Langa (Deputy President of Natal) (who also made an individual submission), Judge H J O Van Heerden (Deputy Chief Justice of the Supreme Court of Appeal) and Judge M M Corbett (former Chief Justice of the Supreme Court of Appeal)). For a list of submissions, see Dyzenhaus, Judging the Judges, above n 18, 187–9.

[44] Ibid 22. It may have been useful for Dyzenhaus to consider alternatives to the TRC legal hearings as a way of confronting the legal past. It appears that Judge Chaskalson may not have been advocating amnesia, but rather attempting to build on the legal foundations despite the legal system’s morally skewed past.

[45] Ibid 23.

[46] Raymond Wacks, ‘Judges and Injustice’ (1984) 101 South African Law Journal 266.

[47] John Dugard, ‘Should Judges Resign? A Reply to Professor Wacks’ (1984) 101 South African Law Journal 286.

[48] For an interesting discussion of this debate, and general issues about judges and democracy, see Hugh Corder (ed), Democracy and the Judiciary (1989).

[49] Dyzenhaus refers to a judgment by the late Didcott J, a liberal judge in the old order, and a member of the Constitutional Court until his death, in which he carved out a requirement of justice when interpreting a statute notorious for its perpetual oppression of black South Africans: see Dyzenhaus, Judging the Judges, above n 18, 75–6.

[50] Ibid 26.

[51] See Martin Chanock, ‘The South African Native Administration Act of 1927: Reflections on a Pathological Case of Legal Pluralism’ in Oliver Mendelsohn and Upendra Baxi (eds), The Rights of Subordinated Peoples (1994) 295.

[52] Geoffrey Budlender, ‘Incorporation and Exclusion: Recent Developments in Labour Law and Influx Control’ (1985) 1 South African Journal on Human Rights 3.

[53] Robert Cover, Justice Accused: Antislavery and the Judicial Process (1975).

[54] Dyzenhaus, Judging the Judges, above n 18, 34.

[55] Ibid 35.

[56] See, eg, Sparks, above n 3.

[57] Dyzenhaus’ level of opprobrium against liberal judges is surprising. The force of his argument against their acquiescence in the system, their inability as it were, to face their contradictions, points to the many compromises that South Africans made. Those included, for example, the decision to serve in the apartheid military machine. Yes, in that system choices were circumscribed severely, but people made them nonetheless. What then is important is to assess the motives for the compromises, a rather personal venture, and one not necessarily conducive to a public hearing.

[58] As Dyzenhaus notes, Judge Chaskalson is one of the foremost South African jurists, whose record on human rights and public interest is impeccable. He was also one of the chief legal advisors to the constitutional negotiations. That the disagreement occurs is not surprising, but since Judge Chaskalson is the ultimate insider, with a deep sense of what constitutes appropriate strategies, it is not too implausible to suggest that his perspective about coping with the past has been well thought out. And I am not suggesting that his position as an insider immunises him from criticism or disagreement, but rather that his perspective emanates from his deep involvement in the processes of transformation, and the choice between morality, legalism and politics, a perspective not always available to outside commentators.

[59] The Hon Abdullah Omar, Speech prepared for ‘Collective Violence and Memory: Judgment, Reconciliation, Education’, the Facing History and Ourselves: Twelfth Annual Human Rights and Justice Conference, Harvard University, Cambridge, Massachusetts, 10 April 1997 (emphasis added).

[*] BA, LLB (Natal, South Africa), LLM (Columbia); Associate Professor, School of Law, City University of New York.