Hon. Raymond Choate (Jeanette), Manhattan Beach, CA
Hon. Ralph M. Drummond (Mary Jane), Pauma, CA
Hon. Jerry K. Fields (Valerie), Los Angeles, CA
Hon. Otis H. Godfrey, Jr. (Jean), St. Paul, MN
Hon. William B. Keene (Pat), Manhattan Beach, CA
Hon. Miron A. Love (Marjorie), Houston, TX
Hon. Plummer M. Shearin (Bettie Wright), Louisville, KY
Hon. John R. Stanton, Jr. (Meredith), Long Beach, CA
Executive Secretary Diane Bowen, Los Angeles, CA
Guests: Mr. Phil Buchanan (Kathleen), Alamo, CA
MONDAY: Academy members arrived at the Protea Balalaika in the morning. In the afternoon the group was met by Judge Piet Schabort of the Johannesburg High Court, who was largely responsible for the success of the Sojourn. He had arranged for a visit to the Media Center to attend a "Media Hearing" of the Truth and Reconciliation Commission ("TRC"). Judge Schabort explained the TRC was set up by the South African Government "so anyone could come before the Commission and comment on the old South Africa under apartheid. Ideally, the people have been given an opportunity to state their case and explain how they were affected by apartheid and bring forth charges of responsibility." The Chairperson of the Commission is Archbishop Desmond Tutu (who was out of the country), and panel members were Alex Boraine, Denzil Potgieter, Hlengiwe Mkhize, Dumisa Ntsebeza and Hugh Lewin.
The afternoon session began with Mr. Boraine explaining that one of the purposes of the Truth and Reconciliation Commission was to find out, "How could so many people embrace the idea of apartheid and how could it have happened?" They are also looking into "racism that was empowered during apartheid by the Government." During the hearing testimony was given by Professor John Van Zyl and Mr. Johan Pretorious. The Professor is the head of the Media Monitoring Group. He described how his group believes the South African Broadcasting Corporation ("SABC") colluded with apartheid. He played news clips which he asserted showed how the television news was manipulated to promote the image of apartheid in the context of the cold war and the Government's response to the "supposed total onslaught." The total onslaught was the apartheid Government's idea that the country was under threat both from within and without. He said, "The SABC had been a willing partner in the broadcasting of government propaganda and it had often exceeded its political bosses' wishes." The panel also heard testimony from Johan Pretorious, an editor at the SABC. He claimed that the SABC minimized the effects of apartheid. Newspaper reports the following day said, "Mr. Pretorias cut an isolated figure as he took the stand and said he felt 'very lonely' in appearing before the Commission. He claimed they found themselves in an untenable situation, where politicians were directly interfering. Their job had been to manage such interference to minimise its impact."
The Welcome Dinner was held that evening in the Eaton Board Room at the Balalaika. Academy Fellows were presented with flashlights (to use at Motswari) commemorating the 1997 meeting. Judge Piet Schabort and his wife, Helena, attended. After dinner, Judge Schabort welcomed the Academy and spoke about the history of South Africa. Judge Broderick presented Judge Schabort with an Honorary Membership in the Academy and a plaque commemorating the Academy's visit.
TUESDAY: The group, accompanied by Judge Schabort, met with Justice Albie Sachs, a member of the Constitutional Court and one of the judges banned from South Africa during apartheid.
Justice Sachs spoke to the group in the courtroom of the Constutional Court and explained that the Court was established shortly after the first democratic elections in 1994, and hears only matters involving constitutional issues. Members were appointed by President Mandela and sworn into office in February, 1995. Justice Sachs was a long-time advocate of civil rights in South Africa. When he was in college in the 1950s he became involved with human rights causes and fought against racism. He opened a civil rights practice in Cape Town after he graduated from law school, and, as things became more serious in South Africa, his reputation grew as an anti-racist attorney. Several times in the 1960s he was jailed and in 1966 he was ordered into exile by the apartheid regime. At that time he went to England and lived there for 11 years and became a professor; thereafter he moved back to Mozambique. Justice Sachs lost his right arm in a car bombing in Mozambique that was probably set by the South African Government. He was a member of the African National Congress ("ANC"), the main opposition party to apartheid and he had been working while he was in exile on the Bill of Rights for the new Constitution. In 1990 the South African Government lifted the ban on the ANC and Justice Sachs returned home to South Africa. In 1995 he became one of the 11 judges on the new multi-racial Constitutional Court.
Justice Sachs gave a synopsis on some of the members of the Court: Justice Madala was an attorney and law teacher who was appointed to the bench in the province. He also served as a governor in his tribal homeland. Justice Ackermann is a Rhodes Scholar, intrepid researcher and has a very strong interest in the German Constitution. Under the apartheid Government he was appointed to the bench, but stepped down to take part in the human rights struggle. He gives the Court a good balance. Justice Makgoro is a black woman, formerly a hospital nurse, who grew up in very poor circumstances, became a prosecutor, law lecturer and professor of law. She gives a lot to the Court as a bridge between traditional apartheid law and South African Constitutional law. She is very important for the balance of the Court as she can draw on her life experiences and is very effective on human rights issues. Justice P. N. Langa is a black man, previously a court interpreter, which is a very important position in the South African Courts. An interpreter is an official who interprets between the various cultures and explains the cultural influences. He continued to do this part-time while he became an advocate. Justice A. Chaskalson is the President of the Court. He was a "most sought after barrister/attorney in South Africa," and appeared in many major cases. He took many "test" cases in the "old period." He established the Legal Resources Center in South Africa with help from Columbia University and the Ford Foundation. Justice R. J. Goldstone was the chief prosecutor for the United Nations War Crimes in the Yugoslavia and Rwanda tribunals. Justice J. C. Kriegler was on the bench in "the old days of apartheid and defended as much as he could, during that period, the human rights of people." Justice C.M.E. O'Regan has a Ph.D. from London University. She is the youngest judge on the Court, she'll be 40 next week. She was a Cape Town law professor.
The term for a justice on the Court has been set at 12 years or age 70, whichever comes first. Five of the present justices will have to retire before they serve 12 years.
The Preamble of the 1996 Constitution says,
"We, the people of South Africa,
recognize the injustices of our past;
honor those who suffered for justice and freedom in our land;
respect those who have worked to build and develop our country; and
believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives,
adopt this Constitution as the supreme law of the Republic so as to --
Heal the divisions of the past and establish a society based on
democratic values, social justice and fundamental human rights;
lay the foundations for a democratic and open society
in which government is based on the will of the people
and every citizen is equally protected by law;
improve the quality of life of all citizens and free the potential of each person;
and build a united and democratic South Africa
able to take its rightful place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel' iAfrika Morena boloka setjhaba sa hesl.
The new Constitution of 1996 is actually the fourth Constitution South Africa has had. The first three were not democratic, did not protect the rights of most South Africans and only allowed a small number of South Africans to vote. In 1910 there was the Union of South Africa, in 1961 the Republic of South Africa, and in 1983 the Tricameral Parliament. Before democratic elections could be held in April 1994 a different Constitution had to be written. This was the interim Constitution of 1993. The interim Constitution was written by people who had not yet been elected into Government so it was agreed that the interim Constitution would be a temporary Constitution and the new one would be written by the Government elected during the election in 1994, which was the first democratically elected Government in the history of South Africa. The interim Constitution set up the Constitutional Assembly ("CA") to write the new Constitution, but the CA did not write the new Constitution alone, all South Africans were invited to say what they thought should be in the new Constitution. Justice Sachs was a member of the CA and said it was a very difficult process. The Constitution was signed by President Nelson Mandela on December 10, 1996.
The Constitution's Bill of Rights specifies basic rights and freedoms for all persons; Equality: everyone is equal and has the right to equal protection and benefit of the law. "No one, including the Government, is allowed to treat you less well than other people, discriminate against you because of race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language, or birth." Human dignity: "You have a dignity because you are a human being and your dignity must be respected and protected." Life: "You have the right to life, freedom and security of the person; slavery, servitude and enforced labour is not permitted. Privacy: "The Government cannot take your things, open your mail, or listen to your telephone calls." "You cannot be searched or have your home or possessions searched." Freedom of religion, belief and opinion; freedom of expression, assembly, demonstration, picket and petition; freedom of association, political rights, citizenship, freedom of movement and residence: "You can go or live wherever you want to in South Africa; you can leave South Africa if you choose; and South African citizens can come back at any time. Every South African can get a passport." Education: "People can set up their own schools, university or technikons at their own expense. These cannot discriminate against students because of their race." Culture: "You can use the language and follow the culture that you choose and you must respect other human's rights when you do so."
Rights of persons who have been arrested and accused of committing a crime: "The right to keep silent; not to be forced to make a confession; to be taken to court within two days of the arrest; to be released either on a warning or on bail unless there is good reason to be kept in jail. To be given a lawyer paid for by the Government; to be kept in 'proper conditions' and to be given free food, something to read and medical treatment and to speak to and be visited by your husband, wife or partner, your family, a religious counselor and your own doctor. If the Government obtains evidence against you by going against one of your rights this evidence will not be allowed in court: 'The police think you have dagga at home. They torture you until you tell them where the dagga is. They will not be able to use this information in court, because the Bill of Rights says you cannot be tortured.'" Elections: "Will be held at least every five years, all South African citizens 18 years of age or older are allowed to vote in elections."
Separation of Powers: The Government is divided into three sections or branches called the Legislature, Executive and Judiciary. The Legislature writes new laws, changes any laws that need to be changed and scraps old laws which are no longer needed. The Executive branch puts the laws written by the Legislature into action. They have to follow the laws written by the Legislature and have to account to the Legislature for what they do. The Judiciary decides what the laws mean. The Judiciary is independent and must make sure that the laws are followed by everyone, including the Government.
The National Government and the National Legislature, which is called Parliament, is made up of the National Assembly and the National Council of Provinces. Parliament writes laws, called Acts, which have to be followed by the whole country. The National Assembly has between 350 and 400 members. These members are chosen during national elections and stay in Parliament for up to five years. The National Council of Provinces ("NCOP") is made up of ten people or delegates from each province. The NCOP writes Acts of Parliament which affect the provinces. Parliament meets six months in Cape Town and six months in Pretoria. The National Executive ("NE") is also called the Cabinet. It is the body which puts laws made by Parliament into operation. Members of the Cabinet must follow a code of conduct which is set out in an Act of Parliament. The rules regarding the NE in the new Constitution are different from the rules in the interim Constitution, however, the interim Constitution says the NE has to stay the "same composition until the next election." The next election cannot be held before April 30, 1999 so the rules about the NE in the new Constitution will only start working after the elections in 1999.
Provincial Governments deal with issues which affect their provinces only; these include the health services, nature conservation and the major roads which run through the province. There is a provincial legislature to write laws for each province. These laws have to be followed by people while they are in that province. Provincial legislatures are also allowed to write provincial constitutions for their provinces but like all laws written by provinces, they cannot go against the new Constitution. Each province has a provincial executive to put these laws into operation. These are made up of a premier and an executive council. The executive council is made up of five to ten people as well as the premier who is chosen by the provincial legislature. The local Government is made up of municipalities, which deal with issues which affect the local area they control. They include electricity, firefighting, traffic, parking and many other things. Each municipality has a council which is both the legislature and the executive for that municipality. Laws written by a municipal council are called bylaws. They have to be followed by everyone living in or visiting a local area. Bylaws also cannot go against the Constitution, Acts of Parliament, or provincial laws for that province. "One of the important new things about local Government in the Constitution is that it says local Governments must see to the development of communities. This means local Government must not just make sure that people follow the laws but must also serve the needs of their communities."
Various institutions to protect people from abuse by the Government and to make sure that Government does its work properly are set out in the Constitution. The institutions are independent, not controlled by the Government even though they are created by the Constitution. They are the Public Protector which investigates complaints about government officials and will try to solve the problem or will refer it to someone who can. There is a Human Rights Commission, which will educate people about human rights, investigate complaints about abuses and will help people take complaints to court. There is a Commission for the protection of the rights of cultural, religious and linguistic communities which promotes respect between communities and can recommend that cultural councils be set up for different communities. The Commission for Gender Equality is to stop laws, practices and customs that discriminate against people because of their gender. There is an Auditor-General who checks how all sections of Government spend money. There is an Electoral Commission which will manage all elections to make sure they are free and fair. There is an independent authority to regulate broadcasting to make sure that radio and television broadcasts are fair and that they represent the views of South African society.
The Security Services of South Africa are police, defense force and intelligence service. The Constitution makes sure that these services protect South African people by saying, "No one who works for these services can follow an order to do anything which is against the law." The Security Services are not allowed to act for or against a political party. The defense force is the only military force allowed. There is a minister, multi-party committee of Parliament, and a secretariat made up of civilians to oversee the police service and defense force and a civilian inspector to monitor the intelligence services. The Constitution also specifies what the national flag will look like and the eleven official languages of South Africa. The Constitution even sets out principals for people who work for government institutions. These principals include being "efficient, fair, accountable."
The Constitutional Court is obliged to hear every case which presents a constitutional issue. All 11 judges on the Court hear every case; if a judge is absent for an extended period an acting judge can be appointed on a temporary basis. The quorum for the court is eight; decisions are reached by majority vote. Each judge must indicate his or her decision. The judgments are all published. Judgments are based on the Constitution which is the supreme court of the land. They guarantee the basic rights and freedoms of all persons. They are binding on all organs of Government including Parliament, the Presidency, the police force, the Army, the public service and all courts. This means that the Court has the power to declare an Act of Parliament null and void if it conflicts with the Constitution. Its function is to determine the meaning of the Constitution in relation to matters in dispute. The Court works largely with written arguments presented to it by the parties; hearings are intended to clarify matters and are normally open to the public and the press. No cameras or recorders are ordinarily permitted. Four sessions of court are held during the year and it is during these sessions that the court has public hearings. The bulk of the work consists of reading and analyzing the documents submitted by the parties and preparing judgments.
The Supreme Court of Appeal shares the position of highest court in the country with the Constitutional Court and deals with final appeals on all other matters besides constitutional law. It has jurisdiction to hear and determine an appeal against any decision of a provincial or local division court. An accused who has been sentenced to death has an automatic right to appeal, and leave to appeal does not have to be granted by the trial court.
On behalf of the Academy, Judge Broderick presented Justice Sachs with an Honorary Membership in the Academy, and a plaque and flashlight commemorating the visit, after which the group adjourned to Justice Sachs' chambers for tea.
After leaving the Constitutional Court the group went with Judge Schabort to the offices of the High Court in Johannesburg, Witwatersrand Local Division, where Judge Schabort sits, and were met by Acting Judge President Flemming.
There are ten provincial divisions, referred to as High Courts. Each division is composed of a judge president, one or more deputy judge presidents, and as many judges as the president may determine. There are three local divisions which have jurisdiction in its own area over all persons residing therein, and all causes arising and offenses triable within that area. There are also special superior courts and regional courts consisting of a number of districts.
Anyone appearing in court can use any of the 11 official languages and an interpreter will be provided. When judges hear criminal cases they wear a red robe, when hearing civil cases they wear a black robe; Justices of the Constitutional Court wear green robes. The Academy judges observed several court proceedings but none were being conducted in English at the time. Lay people are used as "assessors" during trial to help judges interpret specialized facts in civil matters. After the visit to the High Court the Academy judges were invited to lunch across the street from the courthouse at Innes Chambers, where they were luncheon guests of the Societe for Advocates, S.A. Several advocates joined the group for lunch.
After lunch the group enjoyed a city tour of Johannesburg and Soweto. Soweto is approximately 15K from Johannesburg and the largest township in the world, being home to over 3 million people.
WEDNESDAY: The day was at leisure. Activities included visiting Sandton City, touring a gold mine at Gold Reef Park, or visiting a wildlife preserve outside Johannesburg.
In the afternoon the group met with the Honorable Helen Suzman, a former member of Parliament well-known in South Africa as a human rights advocate. Judge Shearin set up the meeting through contacts of his daughter. Judge Broderick obtained a copy of the book written by Helen Suzman, In No Uncertain Terms, published by Jonathan Ball Publishers in Johannesburg. The foreword is as follows:
"Helen Suzman was MP for Houghton in South Africa from 1953 until 1989. During that time she used the forum of Parliament to speak out on behalf of equal justice for all human beings. Often hers was the lone voice. For 13 years she was the sole representative in Parliament of the Progressive Party. For 6 years she was the only woman among 165 MPs. Her courage, dedication and debating skills earned her the respect of the outside world. She has received many honorary doctorates and awards at home and abroad. Born Helen Gabronsky, in 1917 she married Mosie Suzman, a physician, had two daughters and taught economic history at Witwatersrand University. It was not until the mid-1940s that her passion for politics was fully kindled -- when her study of migrant labour alerted her to the miseries caused by the apartheid system. Her memoirs tell the story of her subsequent battle for a more just society. Her weapons were humor, knowledge and logic. She was not afraid to fight for the human rights of those with whom she personally disagreed nor to make herself unpopular by her stand against sanctions (which she believes hurt mainly the people they were intended to help). And she was always determined to see for herself. She inspected the dreary areas to which blacks had been forcibly removed. She insisted on visiting Nelson Mandela in prison and Winnie Mandela in banishment. She attended the funerals of Steve Biko and Robert Sobukwe and other victims of the apartheid system. Spiced with sharp wit her book, In No Uncertain Terms, is essential reading. Not only is it the story of a woman of rare character and purpose, it is also a history from the inside of South Africa since the war, and an overview of a period which has seen suffering and courage and justice and violence, and latterly, astonishing changes."
Mrs. Suzman talked about her experiences and her views of the country under democracy. She told of her relationship with Nelson and Winnie Mandela. She is presently working with a group called MESAB, which has funded medical educations for over 700 black people. She travels all over the world fundraising for this organization.
Academy members enjoyed dinner at Leipoldts Restaurant, hosted by Juta & Company, Limited, a publisher of law reports. The owner, Mr. Owen Barrow, is a good friend of Judge Schabort.
THURSDAY: In the morning Academy members left to visit with members of the Department of Justice and the South African Law Commission. Mr. Michael Tshishonga, the Deputy Director of the Department of Justice in Pretoria, met with Academy members. He told the group that under apartheid, as a result of separate development and self-governing provinces, there were 11 departments of justice with different laws. "During that era there was administration of justice, but it was usually called administration of injustice because of what was taking place." In 1994 when the new Government took over the Department of Justice it "inherited a fragmented structure comprising 11 establishments with separate and disparate administrations, systems and a skewed distribution of resources . . . a personnel profile which [was] characterized by visible race and gender segmentation both vertically and horizontally."
The interim 1993 Constitution required "rationalisation" of all institutions within the Public Service. In October 1994 a Rationalisation Committee ("RATCO"), with representatives from the 11 former departments, was appointed to implement administrative, personnel and infra-structural issues to restructure the Department of Justice. Fact Sheets were provided to members of the Academy which detailed explicitly how the rationalisation has been taking place, and Mr. Tshishonga explained how regional offices have been established in the Eastern Cape, North West regional office in Mmabatho, Free State regional office, Gauteng, Western Cape, Kwazula Natal, Northern Cape, Mpumalanga, and the Northern Province. A breakdown of personnel in these offices by "representivity and employment equity" was provided, along with human resource complement statistics on the staffing of each "rationalised establishment." During apartheid, "Africans, Indians and Coloureds, women and persons with disabilities, irrespective of race or gender, were excluded from meaningful career development as well as from the Management Echelon of the Public Service. The Government therefore seeks to improve the quality and equity of rendering of service by drawing upon the skills and talents of all South Africans in order to derive the benefits of the broader perspectives that a more representative public service will bring."
The Department is also being reorganized to "create a system which is cheaper, simpler, more effective and efficient, and generally fair. The end result will be a system which is representative of and responsive to the needs of the entire South African Community. The Department has established that many Black people and women have been excluded from positions in the administration of Justice for reasons unrelated to their ability. The Vision and new system will offer diverse solutions to the varying needs of our multicultural Society within the parameters of our Constitution." The aims and objectives of the Department are to streamline, simplify and create uniform court management systems applicable throughout South Africa . . . to facilitate the separation of function pertaining to the judiciary, prosecution and administration." The judiciary for the nine provinces is structured into fourteen clusters within the provincial boundaries. At the head of each cluster is a Chief Magistrate in control of a specific cluster, with Senior Magistrates in control of a number of magisterial districts.
Mr. J. Makhubele, Director of International Affairs, Mr. J. Ratshibuumo, Director of Administration of Courts and Community Justice and Mr. N. Hendriks, Director of the Transformation Equity Section, attended the meeting and spoke briefly about their sections and the work being done during the "transformation process."
Thereafter, Professor Thandabantu Nhlapo from the South African Law Commission explained that the Commission was established by an Act of Parliament with a view to law reform in South Africa. The members of the current Commission appointed by President Mandela are Mr. Justice Ismail Hahomed (Chairperson), Mr. Justice Pierre Olivier (Vice-Chairperson), Adv Jeremy Gauntlett, SC, Mr. Phineas Mojapelo, Madam Justice Yvonne Mokgoro, Ms Zubeda Seedat and himself. The Commission was created by Parliament to assist in the process of finding out exactly what the legal needs are in the new South Africa and to make recommendations to address those needs. They have been consulting not only with legal experts and academics, but also with individual communities by public briefings. Any person or body is free to submit proposals for the reform of any particular aspect of South African law. If the proposal warrants the Commission's research, staff will prepare a discussion document containing background information, the present law, and tentative proposals. After extensive consultation and debate a final report is submitted to the Minister of Justice for consideration.
A number of important investigations currently relate to the improvement of the position of women, the maintenance system, domestic violence, customary marriages, Islamic marriages, review of the Child Care Act, simplification of the criminal justice system, mandatory minimum sentences, juvenile justice, and "the harmonisation of the Common Law and the Indigenous Law."
After meeting at the Department of Justice, the group was taken by Mrs. Schouwstra, Director of the Liaison and Legal Information Services, to the Pretoria Magistrates Court where they were met by Chief Magistrate Mr. H. Moldenhauer and Senior Magistrate Mr. Templeton, in charge of the private law courts, and Senior Magistrate Mr. Malesana, in charge of the civil courts. Magistrates courts are magisterial districts under the control of a magistrate who is responsible for aspects of state administration within their district. There are 431 magistrates offices in South Africa with 1,758 magistrates, 1,656 prosecutors, and 7,904 officials of other ranks. Except when otherwise provided by law, the area of civil jurisdiction of a magistrates court is the district, subdistrict or area in which the court has been established. Jurisdiction of a magistrates court is limited to cases in which the claim value does not exceed R50,000 [$12,500] where the action arises out of a liquid document or credit agreement or R20,000 [$5,000] in other cases. The Pretoria court has 34 criminal courts and 8 civil courts.
A regional court can impose a sentence of not more than 10 years imprisonment or a fine of R200,000 [$50,000]. Any person charged with any offense committed within any district or regional division may be tried either by the court of that district or the court of that region. Where it is uncertain in which of several jurisdictions an offense has been committed it may be tried in any of the jurisdictions.
A magistrate's court has jurisdiction over all offenses except treason, murder and rape. The High Court has jurisdiction over all offenses. Depending on the gravity of the offense and circumstances pertaining to the offender, the attorney general decides in which court a matter will be heard. Prosecutions are usually summarily disposed of in magistrate's courts and judgment and sentence passed. The following sentences, provided for by law, may be passed upon a convicted person: Imprisonment, periodical imprisonment, declaration as a habitual criminal, committal to an institution, a fine with or without imprisonment, whipping, correctional supervision, conditional or unconditional reprieve or suspended sentence, declaration as a dangerous criminal, a warning or caution or discharge. Sentencing petty offenders to do community service in appropriate circumstances has become part of an alternative sentence to imprisonment. Only the High Court may pass the death sentence. The President, acting on the advice of the Executive Council, is empowered to commute a death sentence. A moratorium on the carrying out of the death sentence is in place. The consideration of the constitutionality of the death sentence was heard by the Constitutional Court on February 15, 1995, but judgment has been reserved. The last death row prisoner was executed on November 14, 1989.
When a court convicts a person of any offense other than the one for which any law prescribes a minimum punishment the court may, at its discretion, postpone the passing of sentence for a period not exceeding five years and release the person convicted on one or more conditions, or pass sentence but suspend it on certain conditions. Small claims courts have been established in 111 regions consisting of 196 districts with 16 seats, and hear cases involving civil claims not exceeding R2,000 [$500]. In addition, an authorized African headman or his deputy may hear and determine civil claims arising from indigenous law and custom, brought before him by an African against another African within his area of jurisdiction. Courts constituted in this way are commonly known as Chief's Courts. Litigants have the right to choose whether to institute an action in the Chief's Court or in the Magistrates Court. Proceedings in a Chief's Court are informal. An appeal against a judgment of a Chief's Court is heard in a Magistrates Court. Criminal jurisdiction of criminal cases may also be conferred upon a chief or headman or his deputy to try and punish an African person who has committed an offense under common law or indigenous law and custom, with the exception of certain serious offenses specified in legislation. The procedure at such trials is in accordance with indigenous law and custom.
The Academy group toured the Courthouse with Magistrate Moldenhauer and met several judges in their courtrooms. One Magistrate who talked with the group stated she had 1,400 traffic warrants on her calendar that day. At the information office in the courthouse there were numerous pamphlets available. One was on "Sexual Offenses," and the foreword by Chief Magistrate Judge Moldenhauer was as follows: "The years have taught me that it is not pleasant for you to have to testify in court. Because my personnel and I understand that you have already been through a traumatic experience during the commission of the crime, we will attempt to make your visit to the Magistrates' Court as pleasant as possible. Feel relaxed and welcome and realize that you are a very important person in the judicial system. Without witnesses such as yourself, that are willing to testify in court, we will never be able to win the battle against crime."
After touring the Magistrate's Court, the group had a traditional South African lunch at the Gerard Moerdyk Restaurant in Pretoria and then took a city tour, visiting the Government buildings in which President Mandela's office is located, and the Voortrekker Monument and Museum commemorating the Great Trek.
FRIDAY: The group left Johannesburg and flew to Hoedspruit near Kruger National Park, where they were taken to Motswari Game Reserve. In the evening the group enjoyed a game ride in landrovers and saw giraffe, bushbuck, elephant, hippo, impala, a pride of 11 lions, impala, steenbok, zebra, and a beautiful sunset in the bush. Dinner was in the boma around the firepit.
The 1997 Annual Business Meeting was convened at 11:00 a.m. at Motswari Game Preserve, Kruger National Park, South Africa, with all judges in attendance. Judge Stanton moved that the minutes of September 24 - October 10, 1996, Amsterdam, Brussels, Champagne, Burgundy and Paris be approved as written, second by Judge Godfrey, unanimously approved. The Treasurer's report was presented by Judge Godfrey and accepted as submitted. The beginning balance on February 24, 1996 was $689.18; income from dues was $5,250 and scholarship donations $675; expenses were $4,544.68 with a balance on hand of $2,069.50. Trip expenses are pending.
The 1997 Dues Report was discussed. Judge Michael E. Zoghby was dropped for non-payment of dues for 1996 and 1997, upon motion by Judge Choate, second by Judge Drummond. It was reported seven other members failed to pay 1997 dues. The Scholarship Fund donation was discussed; trip participants donated additional monies to the fund and Judge Godfrey moved that the Academy donate $1,000 to Stellenbosch University, second by Judge Choate, passed with a vote of eight yes and one no.
Judge Keene discussed the nominations for 1998 and the following slate was proposed: President - Judge James G. Kolts; President-elect - Judge Otis H. Godfrey; Secretary-Treasurer -Judge Jerry Fields; Chancellor - Judge Henry J. Broderick. The nominations were seconded by Judge Stanton and unanimously elected.
Judge Kolts sent a written proposal for the 1998 trip, which was met by positive comments. The trip will begin on Wednesday, September 23, 1998 for departures from the United States to arrive in Athens, Greece on Thursday, September 24. Accommodations in Athens will be at the Meridian Hotel for four nights. The group will board a cruise ship on Monday for five nights and visit Delos, Mykonos, and Sontorin Islands, the Islands of Crete and Rhodes, and the Port of Kasadasi in Turkey. Upon arrival in Istanbul, the group will stay four nights in the Hotel Ceylon, an Intercontinental Hotel. A three-night extension will be offered on the Turquoise Coast of Turkey. Prices will range from $4,895 to $6,495 per person, double occupancy, based upon category of room selected on the ship. The trip proposal will go out before the end of 1997, as early deposits will be required to reserve space on the cruise.
Executive Secretary Diane presented the results of the "What Would it Take?" questionnaire which was sent to all members with the 1997 dues request. The top destination choices (in order of preference) were Australia, Greece, British Isles, Scotland, New Zealand, Turkey, and Argentina.
It was moved by Judge Keene, seconded by Judge Stanton, to discontinue sending out Academy membership cards; receipt for payment of dues will be a roster book. Tips were discussed and tabled, as at the time of the meeting the Academy did not have a permanent guide; one was expected to join the group in George. (Subsequently, R100 [$25] per person was collected for a tip for the guide, Margaret, and R50 for the bus driver.) The meeting was adjourned at 1:00 p.m. so members could rest before 3:00 p.m. tea and a 3:30 p.m. game ride. After the game ride the group enjoyed a dinner in the bush.
SUNDAY: In the morning there was a final game viewing and then the group departed to fly to George in Western Cape Province. The group stayed at the Fancourt Hotel and Country Club Estate at the base of the Outeniqua Mountains where Ernie Els is the golf pro. Located in the heart of the Garden Route, the hotel was close to the country's largest remaining indigenous forest, the Tsitsikamma, with centuries-old trees of Yellowwood and Stinkwood, ferns, wild flowers and multitudes of birds, from peacocks to guinea hens.
MONDAY: The group explored the heart of the Garden Route, "a region of diversity and contrast, from golden beaches, rocky shorelines, mysterious forests, breathtaking mountains and vast, open plains, all united by an overriding theme of natural beauty." Stops were made at Wilderness National Park, and lunch was aboard the John Benn, a cruise ship on the Knysna Lagoon. After lunch the group boarded the Outeniqua Choo Tjoe steam train and rode the train from Knysna back to George.
TUESDAY: The group left the Fancourt and drove to Stellenbosch located in the winelands of South Africa. On the way the group stopped in Mossel Bay and viewed the life-size replica of Dias's caravel, the first European ship to sail around the Cape of Good Hope in 1488. Stellenbosch is the oldest and considered one of the most beautiful towns in South Africa; it is also well known for its wine route established in 1971. Stellenbosch University is one of the most important academic institutions in the country. The group stayed at the Lanzerac Manor and Winery, considered one of the Cape's top hotels.
WEDNESDAY: The group visited Stellenbosch University School of Law and met with Professor H. J. Erasmus, retired law professor, who introduced Professor Lourens de Plessis, an expert on constitutional law. He spoke about the writing of the 1993 interim Constitution and the 1996 Constitution and the process by which it was written by the Constitutional Assembly. He feels value statements such as sovereign democratic rights, development of human rights and freedoms, supremacy of the Constitution, common voter rolls, regular elections and a multi-party system of democratic Government, accountability, responsiveness and openness are key elements of the Constitution, and he believes the Bill of Rights is progressive.
Professor Gerhard Lubbe discussed legal education in South Africa and stated it is in a state of transformation, however, there is presently an Academic Development Program aimed at students from poorer regions. There are three main legal degrees, an LLB, BProc and Bluris, as well as two legal diplomas, Dip Legum and Dip luris. Qualifications are obtained from the universities in three- to four-year programs; tuition ranges from R8,000 [$2,000] to R9,000 [$2,250] per year. Universities are 66% funded by the Government and students pay the balance of the tuition. All affairs and instructions at the University are conducted in Afrikaans.
On behalf of the Academy, Judge Broderick presented the Professors with an Academy check for $1,000, as a scholarship donation for a law student studying at the University.
THURSDAY: In the morning the group departed for the Mount Nelson Hotel in Cape Town. Prince Abdul Aziz Al-Saud, Defense Minister of Saudi Arabia and his delegation were also staying at the Mount Nelson Hotel. Newspaper reports indicated the Prince "took over 120 rooms," and was meeting with President Mandela regarding a R7-billion oil for arms deal.
In the afternoon the group met with representatives of the Cape Bar Council; Ben Griesel SC, Immediate Past Chairman and Derek Mitchell, Chairman, Public Relations Committee, and advocates Renata Williams, Ismail Jamie, Anton Katz and Ashley Binns-Ward. The Law Society of the Cape of Good Hope was represented by Adam Pittman, Gavin Tinkler and Shelley Mackay-Davidson, from the Southern Suburbs Attorney's Association and Butch van Blerk from the Cape Law Society. Susan Aird, the Director of the Society, was unable to attend the meeting. Appreciation plaques on behalf of the Academy were presented by Judge Broderick to Ben Griesel of the Cape Bar Council and Susan Aird of the Cape Law Society.
The legal profession is divided into two branches, advocates and attorneys. Advocates are organized into Bar Councils; the Cape Bar has approximately 300 members, and total membership in the Bar in South Africa is approximately 1,600. Attorneys are divided into law societies, and a practicing attorney is a member of at least one of the societies, which seek to promote the interests of the profession. For every advocate there are six to seven attorneys practicing law. Attorneys work up cases and do research in civil matters; they handle property registration, conveyances, and set up trusts and wills. If litigation is required attorneys will need an advocate to handle the presentation of the case in court; but increasingly, attorneys are bringing matters before the court without advocates. Attorneys handle setting fees for the advocates with the clients. Attorneys do basic ground work preparation, generally taking advice from advocates as to what needs to be done. One of the biggest firms in Cape Town has 35 partners.
FRIDAY: In the morning the group met with Mr. Justice Johannes J. Fagan, Deputy Judge President, Cape Town High Court. Justice Fagan took the group into a courtroom that was built in 1913 and was in the process of being refurbished. The British Coat of Arms was still above the bench. There are 26 judges in the Cape Town High Court, 9 are hearing criminal matters.
Justice Fagan recently retired and was sitting on assignment hearing a bombing case. The case was reported in the newspaper as, "The bomb planted at a Worcester shopping centre on Christmas Eve exploded metres from a Christmas tree where shoppers had left their children to play . . . Mr. Justice J. J. Fagan is on the bench, Willie Viljoen appears for the State and Harry Prinsloo and Louiza van der Walt for the defence." There is mandatory retirement at age 70, and full pension benefits until the judge dies; spouses receive 2/3rds benefits. Until age 75 judges can work three months each year if the Judge President asks them; there is a new rule in Parliament which might permit them to work more.
The court has two ten-week terms and two nine-week terms during the year where they hear cases, the rest of the time they "read records and put out judgments." Every decision has to state reasons for the judgment. A very small number of criminal cases are appealed.
The Academy judges were introduced to Justices J. G. Foxcroft, John Hlophe, J. H. Conradie, Mrs. J.H.M. Traverso, F. Brand, L.A. Rose-Innes, President of the High Court Friedman, and Deputy Attorney General Miss Natalie Fleishack. The group went into Judge Hlophe's courtroom (Court Hof 16) and observed proceedings. He was trying a murder case which he had discussed with the Academy judges in chambers. While in the courthouse the group met Professor Erasmus, who was sitting as an assessor that day. There are no jury trials in South Africa, they were abolished in the 1960s and there is "no discussion of bringing them back."
Written questions were submitted to the Judge Presidents of the High Courts from the Truth and Reconciliation Commission regarding the handling of cases under the "old regime." Individual judges could make submissions; Justice Friedman submitted a response for the Cape Town High Court which all concurred in. Judge Broderick was given a copy of the response. Some of the judges sitting on the court today were appointed after 1994; Justice Fagan was appointed to the bench 21 years ago. Judge Broderick presented Justice Fagan with an Honorary Membership in the Academy and a plaque to commemorate the Academy's visit.
In the afternoon the group took a tour of Robben Island. President Mandela spent 18 years imprisoned on Robben Island. "Few places in South Africa symbolise the struggle to overthrow apartheid as strongly as Robben Island -- where many of the liberation leaders spent years incarcerated in cruel conditions. ... The first political prisoner on the island was a leader of a Khoikhoi group named Autshumato, who was banished there in 1658 for attempting to take back cattle he believed settlers had unjustly confiscated. ... Over the centuries, many African chiefs and political leaders who spearheaded attempts at resistance found themselves on Robben Island. Tales of their heroism served as inspiration to generations who fought for freedom. President Nelson Mandela's incarceration rallied democratically-minded people in South Africa and throughout the world around a single, potent symbol. ... During its 30 years as a political prison this century, 3,000 black prisoners were housed there. Criminal prisoners were held separately from political prisoners on the Island. The last of the political prisoners were released in 1991 and the last criminal prisoner transferred last year."
SATURDAY: The group took a full day tour of Cape Point, around the Atlantic Seaboard through Seapoint, Bantry Bay, Clifton, Camps Bay, Llandudno and Hout Bay. While visiting the Cape Point Nature Reserve the group rode the funicular railway to view the meeting of the Atlantic and Indian Oceans. After a seafood lunch at the Black Marlin Restaurant the group stopped to see Jackass Penguins on a nearby beach.
SUNDAY: The group enjoyed a bus tour of Cape Town, and Kirstenbosch Botanical Gardens and then were dropped off at the flea market, the wharf or taken back to the hotel. Judge Keene nominated Phil and Kathleen Buchanan, the Academy's guests, as Honorary Members, and told them they were welcome to join the group anytime. The afternoon was at leisure.
In the evening Academy members held their Farewell Dinner at the Mount Nelson Hotel. Judge Piet Schabort and his wife, Helena, flew down from Johannesburg to attend the dinner, and Minister of Justice Dullah Omar and his wife joined the festivities. The group presented Judge Broderick and Mary Jo with a figurine from the Feathers Shop of a pair of guinea hens, the South African National Bird, to thank them for all their hard work in taking the Academy to the continent of Africa for the first time.
MONDAY: In the morning the group visited Signal Hill, under Table Mountain, and enjoyed a farewell view of Cape Town. Members were then taken to Cape Town Airport where they departed for Johannesburg and flights back home.
Written by Diane Z. Bowen, Executive Secretary
Henry J. Broderick, President
OUTENIQUA CHOO CHOO
By Ray & Jeanette Choate
Pardon me friends, is that the Outeniqua Choo Choo? Yes, Track 29! Oh what I'd give for a shine.
You can afford, to board the Outeniqua Choo Choo. It is just a few Rand, and the excursion is grand!
You leave the Knysna Station 'bout a quarter-past-two. Aboard the Outeniqua, which is ready for you.
Shovel all the coal in, we gotta keep her rollin, Choo Choo Outeniqua we're with you!
When you return to Fancourt you're feeling like a real sport -- Choo Choo Outeniqua, lets all go!