Magistrates Under Apartheid: A Case Study of The Politicisation of Justice and Complicity In Human Rights Abuse
South African journal on human rights
Executive Summary The Truth and Reconciliation Commission (TRC) institutional or sector hearings represented an innovative attempt to gain insight into the societal context within which human rights abuses took place under apartheid. This paper is both a response to, and an off-shoot from, one of these hearings, the legal sector hearing held in October 1997. The hearings, like much previous commentary, revealed the extent to which the legal profession became complicit in the implementation of
... artheid. Most analysis has focused on the fact that judges declined to appear at the hearings, on the grounds that it would compromise their independence. But magistrates were also largely absent. This was a cause for concern because the majority of South Africans came into contact with the apartheid legal system primarily through magistrates. Magistrates during apartheid were public servants and as a result their independence was significantly compromised. Among the wide powers and jurisdiction they enjoyed, magistrates performed crucial functions in relation to political detainees, including overseeing the complaints and safeguard machinery. It was on the complaints and safeguard system that this study was initially focused. There is voluminous evidence that the complaints and safeguard system failed to protect detainees. This paper argues that it this system was inherently flawed, because as employees of the state magistrates confronted the situation of dual loyalties, on the one hand to their employer and colleagues and on the other to the detainee whose well-being they were charged with ensuring. This situation of dual obligations is crucial to understanding the attitudes and conduct of magistrates. Magistrates' own understanding of their work remains unknown. This research project has extended beyond its initial area of concern to include other aspects of magistrates' interaction with detainees -such as the taking of confession-statements -some more general analyses of their structural position and approach (for example, observations on the credibility. 5) The paper concludes with an examination of magistrates' reflections on, and moral engagement with, their individual and collective pasts. In general the scenario outlined by magistrates was as follows: torture did occur, they as magistrates knew about and were opposed to it, but lacked proof to back up the rumours, hunches and allegations. Magistrates unanimously declared that their role in overseeing the safeguard and complaints system did not make them complicit in detention without trial or custodial abuse. Even when admitting that the system had failed to achieve its purported ends, magistrates granted themselves a clean bill of health. What criticisms there were never quite translated into self-criticism. This section on reflection and moral engagement concludes with an analysis of magistrates' observations about the issue of apologies: is an apology from magistrates needed? If so, for what? In conclusion, it is clear that, despite isolated and partial exceptions, magistrates in general lacked and still lack a moral vision to condition or evaluate their conduct. As a result, their moral engagement with the past is selective and self-interested. Magistrates were clearly not responsible for all of the ills that characterised, for example, the custodial system. These ills were the result of a complex relationship between unjust laws and government, politico-legal structures (such as magistrates being public servants) and a professional culture (magisterial allegiance to the state and its employees and the equation of the law with justice). However, magistrates do need to examine the ways in which they made a bad system worse and how they could have acted differently. The gap between these two modes of conduct, across a range of spheres of influence, can be seen as the area of magisterial complicity with the human rights abuses that took place. This complicity needs to be acknowledged and apologised for, thereby providing the cornerstone of reconciliation. While the move to an acknowledgement that abuses took place has generally been made, an acknowledgment of personal complicity in such abuses is completely lacking. With a view to facilitating this shift from general acknowledgement to selfacknowledgement, and to enable the magistracy to address the past and move on into the future, the paper's main recommendation is that the Magistrates' Commission and other relevant institutions should convene a mechanism of institutional introspection such as an Internal Reconciliation Commission (IRC), to discuss with magistrates and a range of relevant stakeholders the role magistrates played in the past and ways of ensuring that mistakes are not repeated in the future.