SAHA in the Classroom Spring School
History teachers from across South Africa gathered at the South African History Archive (SAHA) to participate in Spring School, a program that affords teachers the opportunity to make use of SAHA’s extensive archival collections to bolster their students’ quality of education. During the session on the Truth and Reconciliation Commission (TRC), participants were asked to define concepts related to truth and reconciliation, such as the terms accountability and justice. The conversation turned to the role of law and the judiciary in achieving accountability and justice.
Promotion of Access to Information (PAIA) requests for TRC records
SAHA has been committed to making as much material from the TRC readily accessible to the public as possible. This has primarily been achieved through: (1) collections donated to SAHA and (2) the archiving of records released to SAHA in terms of access to information requests made by SAHA for TRC related records. For example, SAHA submitted a request for the written submissions, made by Paula McBride to the TRC, on the role of the judiciary during apartheid. The Department of Justice (DOJ) responded to this request by releasing the records in full. The records pertain to the TRC’s special hearing on the Judiciary. One record in particular was a submission regarding judicial accountability penned by legal scholar, David Dyzenhaus, and entitled, “Judicial Accountability under Apartheid: Submission to the Truth and Reconciliation Commission”.
Judicial accountability under apartheid
Many of the judges during apartheid were either actively or passively perpetuating the oppressive regime. The question therefore arises: what happens when individuals, who are charged with administering justice, are upholding laws that are based on discriminatory and oppressive practices?
Under invitation from the TRC, judges and magistrates were asked to participate in the TRC special hearing on the judiciary. While judges contributed to the hearing through written submissions to the TRC, they refused to participate in person. Their argument for not participating was that it would compromise the judiciaries’ independence and decrease public confidence.
In Dyzenhaus’ submission, he begins by stating that Judges took an oath to administer justice, not to only administer the law. There was a judicial dereliction of duty during the apartheid as many judges disregarded their oath and in fact simply administered the law through adopting the literal approach to interpretation. This approach bound judges to interpret legislation explicitly as the legislators intended – known as a “literal approach” to legal interpretation. This interpretative approach to the law allowed many judges to morally distance themselves from the decision-making process.
Can there be justice without accountability?
Dyzenhaus wrote on the importance of the judiciaries’ participation in the TRC, as they held a special position during apartheid and had the ability to divulge unique information on the legal processes during this period of time. Repairing the damage apartheid has left in its wake, is a slow and strenuous process. The transformation of the judiciary post-apartheid as a legitimate democratic institution, charged with upholding the values of the Constitution of the Republic of South Africa and the Bill of Rights did not occur overnight, as many of the judges who validated the apartheid regime still remained on the bench post 1994, itt is not surprising many South African citizens were hesitant to embrace and trust the authority of the Judiciary post-apartheid. The lack of Judges’ participation in the TRC only exacerbated these feelings of distrust. As, how can the public trust authority figures that are not held accountable for their actions? TRC had provided an opportunity to hold judges accountable for their participation in the apartheid-regime without putting them on trial. The insight from their involvement with the TRC would have aided in the transformation of the South African Judiciary; this opportunity however, was lost.
Read more about SAHA's in the Classroom Spring School here
Read more about this PAIA request and released records here
 MM Corbett ‘Presentation to the TRC’ (1998) 115 SALJ 18, 20.