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This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

01 Dec 1999: Langa, Pius

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POM     Judge, just to raise some questions that I didn't get an opportunity to raise with you the last time. One is on the administration of justice in the country. I've talked to both Ministers, Dullah Omar and to Penuell Maduna. There are inadequate buildings, not sufficient supply or support mechanisms in place, untrained prosecutors, untrained public defenders, poorly prepared cases on the part of the police, 30% of whom are functionally illiterate, and it goes on and on and on. Yet one talks about setting up more courts, whether it's equality courts or consumer courts or other courts that would look into disputes between bodies in civil society. Should one not deal with what one has, put that house in order before talking about adding new rooms to the house?

PL     Well there is a problem. The context is where we come from and this government has had five years now to straighten things out. The problem is obviously much bigger than the five years and the question is whether they are going in the right direction in fixing up what is wrong. The question as to whether they should be expanding, creating new structures and so on, I think it's best left to the legislature and the executive to deal with. It may be wise, it may not be wise but I think one big imperative is the constitution which we have which demands certain things. I am not sure how far, how they prioritise what should come first and what should follow and so on. My sense in the last year or so is that there is an urgent realisation that the country has to deal with the major problem, crime, in as efficient a way as possible, that structures should be in place which are directed at dealing with those urgent priorities and what has happened is the establishment of the new Director of Public Prosecutions and various police teams which specialise in significant areas. It seems up to now that they have been very effective. I am hearing less and less of a drama with regard to crime not being attended to. They seem to be getting on top of the situation at least I hope they are. But of course it's still a problem and it seems to me that it's going to take some time but it's not something which is within my field of activity. But just observing as a citizen of the country and listening to what the atmosphere is they seem to be getting on top of it, at least I hope they are.

     With regard to whether there is a breakdown in courts, in staffing the courts and so on, again it's a problem which is being tackled, I think, on a progressive scale. I don't have the sense that everything is actually breaking down. I sense, and I've been speaking to the Minister of Justice, he was here the day before yesterday so we talked about these things, my sense is that it is a period of transition, they are structuring something, building, and in fact he is still asking questions about how best to do this, how best to staff the courts and how best to restructure the whole system. So I think we are still in a formative stage and I don't have the sense that we are actually breaking down. It's the whole story of a half empty bottle or a half full bottle. I think the bottle is filling up and that is really what I am looking at. That's my sense.

     Should they go on to establish other structures? I think this is dictated by the fiscus. There is a question about the building of courts for instance, should they go ahead with building new courts or should they repair old courts? What should they do? Should they look at the rural areas and see what courts are there which are poorly furnished maybe, poorly looked after? I think they will try to do whatever they can. The question is prioritising, as you rightly say, but as I say I don't get the sense that they have reached the point where things are so bleak that the whole thing is breaking down. But of course it depends on what the Treasury votes to the Department of Justice.

POM     I want to touch on something and if you're unable to comment on it just say - I can't comment on it because it may come before the Constitutional Court at some point. I've been following the progress of the Equality Bill and the Open Democracy Bill, especially the Equality Bill and especially provisions relating to hate language. Do you legislate people to be good? Do you set up laws and say if people follow these laws and these regulations this makes them good people? If they do this it makes them bad people and if we find people suspected of being bad you will be hauled before a court and told that you are bad and have to pay a penalty. It's not that it's Orwellian, it's kind of creepy. If I, for example, the use of the word 'kaffir' or 'boer', in all cultures every stereotype that's used against the Irish the Irish use against themselves in humour and parody and it's part of what they would call 'the crack', it's no big deal. So how do you distinguish? If a black man said, "Well I'm nothing but a bloody kaffir" as distinct from a white man saying, "You're nothing but a bloody kaffir", but he's saying it in a humorous kind of a way and the black person laughs, but someone says "Ah! You used the wrong word, the kaffir word!" Or you use the same thing with 'boer' or whatever. The intricacies of dealing on a case to case basis is just kind of overwhelming. How do you go into the motivation of minds when a person says, "Well I wasn't using it in that way, I was using it in an entirely different way." Do you say, "Oh no." Can you make a general commentary on it without a specific commentary because I don't see how it can be done and it also frightens me that everyone would have to watch the words they use and wonder about whether the context they're using them in is legal or not legal.

PL     So what do you want from me?

PL     A comment on this whole idea of whether or not goodness and badness can be legislated particularly as it relates to the way people treat each other and interact with each other and things like that, or ultimately must they come from the people themselves?

PL     Well I don't know. It's a big debate. Views are expressed either way. I think one advantage that comes out of the whole thing is that it gets people talking about these sensitive things, because the question of race has been very sensitive in SA and the question of how people have been calling each other, throwing stones at each other across artificial fences and so on, it's been a big thing here. The insults that arise out of race discrimination - I mean apartheid was the worst manifestation of this so I understand why some people feel that strongly that they should even try to legislate. Whether legislating is a good thing or a bad thing in that field I really don't know. In fact I've not been following the bill itself but I know about the debates and I know where the debates come from but whether one should actually legislate that's another matter, I really don't know. My view is as good as yours.

POM     Until one day they come before you.

PL     Until that day comes, and even on that day I know it's going to be a difficult issue because we will have to listen to argument coming from all sides and disabuse our minds and judge it on its merits. But it's an interesting debate.

POM     It sure is. The second thing I wanted to briefly touch on was The Truth About the Truth Commission which I went through in great detail, went back and referenced it to the incidences that she had talked about. And the incident that I concentrated on, I looked back and checked her sources and what had been reported at the time, said in the TRC Report, and what she had to say about it and the sources she cited kind of threw me off and the version of events there in the TRC report was a version that was almost third hand, it relied specifically on there is no investigative work done, it relied on unsubstantiated allegations that had been made which in some cases had been disproven by more scientific investigations but were perhaps casting doubts on some of the conclusions it may have come to. I suppose the TRC is something that you poke at to find fault with by showing this was a wrong conclusion, so on the basis of what we could find we will make a finding.

PL     Well let me put it this way, firstly I have not read the book. I have seen the reviews, I have seen extracts of the book because it has been much talked about and from reading those extracts and so on one gets the impression that whatever Anthea Jeffrey was writing about it was meticulously researched. That is the impression I got. Insofar as it comments on specific things among the findings of the TRC I really have not gone through the exercise of making a comparison. I have not done the study which you have done but I am prepared to assume that the findings of the TRC are not the sort of findings which you would expect a court of law to make. I don't know how people should regard the work of the TRC. My own view is that its work was multi-faceted, it had to record and give a particular picture of what used to happen in the past. I think its mandate is to present as complete a picture as possible of what used to happen.

     Now how should it approach its work? That's a big question. Should it approach its work as a court of law or should it get a general picture and correct certain perceptions about the past or is its main function to reveal even to the sceptics the truth about the atrocities which used to happen in the past. The problem in SA is that there was a great deal of denial about what was happening here. Apartheid was simply known as apartheid, as possibly a hateful doctrine. Some people regarded it as a very protective doctrine and so on. But what was not generally known was that many atrocities were committed in the name of apartheid. Perhaps they were committed on either side of the dividing line and I think one of the major achievements of the TRC was to actually set that record straight and give a history. It's impossible now for anyone to deny that those who were running apartheid (knew what was happening). The machinery also contained a lot of atrocities, violations of rights and so on.

     Now I am quite sure that if one were to take incident by incident, compare what is written in the TRC Report and subject it to a microscopic analysis, some of the facts, because facts come from the mouths of people, there will be inaccuracies, there will be people who have given evidence in the TRC who have not told the whole truth or possibly who have embellished and the very structure of the TRC where cross-examination was not the sort of cross-examination which you get in court, the testing is not the sort of testing which you get in court, it would lend itself to that kind of procedure where you can't really be sure that the whole truth has been told. But I think the main achievement was simply to get at least a perspective of what used to happen. So I don't know, maybe the Anthea Jeffrey work and the work of the TRC maybe they should be looked at as not really the same exercise, I don't know.

POM     Archbishop Tutu talks about healing truths, talks about forgiving truths and Albie Sachs talks about experiential truths. Are there different kinds of truths or is truth an absolute or is it a relative concept? Can you divide truth into break it up and say, well this is not that kind of truth, it's this kind of truth? Is that not un-defining what the word truth is supposed to mean?

PL     I think it comes back to our view about what history is. History is made up of all sorts of autobiographies and biographies and story telling. That's my view anyway. Sometimes history, in fact most times history depends on who is writing. Two people can write about the same thing and produce two different versions. Now before the TRC we had one history, one version of history and it's a history which allowed people, many people, maybe a whole community to be able to say apartheid was bad because there was discrimination, it was bad because the black man did not have the vote and so on but they would be totally oblivious of the many other things which went on under the cloak of apartheid. They would not know that those things happened and they did not know and they are saying so now. So there has been as a result of the TRC a change in perception and people start questioning themselves why didn't we know about these things because they were happening right under our nose? And they then get a sense of guilt that we actually condoned these things. Now I would say that is possibly an overall truth. I'm not an expert on the different kinds of truths but I think that is an overall truth.

     Then one gets to the biographies and the autobiographies and the story telling, telling the same incident, the details of each component of this greater truth. It's different in the telling, it's different depending also on the questions one asks. I don't know that it's helpful to try and categorise this as being a better truth or a lesser truth and so on, I don't know. As I say I think it's two different processes. What overall impression is being given? It depends on what one sets out to find.

POM     In that context I have found from my own experience of talking to white people, many white people who said, "I never voted NP, I was always anti-apartheid, whatever." First of all they developed a mood of  'we're sick and tired of hearing this stuff being repeated day after day, what's the point of repeating it ad nauseum?' Two, 'I didn't know about it', and thirdly, 'If I had known about it I would have objected to it'. And three is kind of a distancing, it's something they're hearing but it's not going into their minds, they're not asking themselves the question that you posed: why didn't I know because if I did look around there would be a lot of evidence? If they even listened to Helen Suzman for years get up every day in parliament and point out what was happening, things were published in the papers, everything wasn't concealed. 'I never questioned anything'. At that point they are still in denial, whereas black people that I talk to are angry that there you have perpetrators stand up and know that all they had to do was tell the truth and show that it was related in some way to a political objective and that would satisfy the requirements for amnesty. You could almost see them looking at their watches and saying, 'Oh God, I've got another 20 minutes to go and I will have fulfilled my requirements. I should get amnesty', and doing it without any remorse, without any sign of guilt and saying, 'I've done my bit, I've got my amnesty, now I'll get on with my life but I'm not really sorry.' The debate I expected to follow didn't follow, certainly not among ordinary people who at parties and the like wouldn't talk about the TRC but would talk about football or cricket, not saying, 'My God! Did you hear what was just said? (How could that happen) without anybody knowing about it, surely somebody must have known about it.' I'm more confused than informed at the end, not at the end, now it's almost dropped out of sight.  What I'm looking for is just your comments on my comments.

PL     The debate has not disappeared. Among black people there is still a sense of shock mixed with the feeling that, well, we were the victims, we always knew this was happening, but the shock of course arises from the wideness, the scale on which this was happening. I mean the people who were roasted and so on are people we know and for families this was a reality, except now the families get to know the details of how this happened, why this person disappeared and who actually roasted this person and what happened to this person after that. What raises a sense of intense anger is the fact that the story teller is the person who did the roasting and does so with a straight face, it's just another incident and they can do this without exhibiting any emotion, they are not sorry. It's not really a confession in the religious sense so that raises intense anger.

     But I think the general picture, you have mentioned the reaction of members of the white community, you spoke to well-meaning people and members of the black community, they were on opposite sides, now I think it underlines the fact, or my belief, that those who should be apologising are those who have in some way or other benefited from the old system, who would like the whole debate to be dissipated quickly. They would like us to regard this country now as normal, it has a wonderful constitution with a Bill of Rights, which constitution says there is equality so once you say everyone is equal what more do you want? So for them it's convenient to forget about the past and start on what appears to be a clean slate straight away and go forward so they would be impatient with the debate about the past. That's why you hear more and more, you get it in the media, you get it everywhere else, that people should stop blaming apartheid which may or may not, depending on the degree, may or may not be a valid comment.

     Now the other community, there is still intense anger. There is still they are living with the backlog which was caused by that system. Some of them have lost their relatives, their loved ones through that system. So if one talks of forgiving you are actually looking at people who have been wronged, you are saying they must forgive. If one talks of reconciliation you are actually looking for something positive to come from the victim class. You are saying they must give and give something which one can only do from inside, something which is oneself. That is what is expected of them.

POM     Or by being prepared to acknowledge the enormous disparity in what they have and in what the disadvantaged have and say as part of our reparation we are prepared to pay higher taxes so that more services can be provided rather than complaining that taxes are going up again.

PL     That's what's missing here and it's going to take a long time. You know I attended a conference, I may have told you, at Yale University where the two experiences were being compared, that is the holocaust experience and the apartheid experience. We had this conference early last year and the whole theme of the conference was memory and forgetting and the question was really: how should one treat history and how should one build for the future? You know the Jewish experience after the holocaust has been to hunt down the perpetrators and there is a deep belief that this is the right thing to do and if you transfer that to the South African context we should be having Nuremberg trials here and in that sense the whole TRC process stands in the way of that. It makes that something which has been written off, it won't happen here. So the alternative here is reconciliation which is a much more difficult concept than a following up of the atrocities and making sure that the people who committed them are actually punished. So it's really two different experiences. But the point was made also that the experience of the Jews happened in the forties, during the 1940s, but that spirit of seeking justice is still there now, there are people now who are still hunting and the question was whether SA can afford that kind of thing, can we afford here that kind of attitude where you still have victims regarding themselves as victims and looking for the perpetrators and seeking to avenge? The answer is that the leadership here through the TRC process decided that we really don't have the time, the resources, we need to quickly start building the country together so reconciliation is the way but how does one reach reconciliation? One expects remorse and you don't get it, therefore the anger keeps on going on. Somehow the thing has got to be resolved. The question is whether the TRC process has helped the situation.

POM     Do you think one thing it has done, because for years I used to hear this and hear it in fact from Archbishop Tutu himself who would talk about ubuntu and the great thing about black people, their humanity, their willingness to forgive, and it always struck me that you couldn't have been under the jackboot of apartheid for 40 years, suppressed in the way you were, without being angry and if you didn't show it then it was buried within you, it hadn't found a way of expressing itself. It would be non-human not to feel anger and ultimately that anger has to find a way of getting out and expressing itself.

PL     I think it's also worse than that because it's not a question of saying in 1994 that apartheid died and we became a new society altogether as though we do not bear the scars of the past. Now the whole thing is still continuing, the edifice was taken off, it fell down, but you still have the majority of the population living in privation. In other words the equality which the Bill of Rights proclaims is still not there. The law will regard you as the same, equal, but in reality those who were struggling in poverty are still struggling in poverty. Now the way really, what people I think want is an acknowledgement of that, that apartheid created an unequal society, it remains unequal now and a gesture from the other side acknowledging that and doing something about it. I think that would help, that would help dissipate some of the anger, the intensity of the anger. For me that is the only way towards reconciliation in the future. But it's in that sense that I think the TRC process was important simply by setting that record straight in terms of perceptions and giving people enough information on this side, the privileged side, giving them sufficient information to be able to see what apartheid really did to people, to the other people, and hoping that their good sense will prevail and something will come of it. But I hear you saying that nothing is coming of it?

POM     Well I think white people have closed their eyes and there's a great invisible mass of poor, struggling black people out there and they've wiped them out of their memory, they might as well not exist. They go on with their comfortable lives. I go to their homes, you go to Rosebank, you go to Sandton and you say, "My God! Where am I? Where am I living?" It's conspicuous spending.

PL     That's true.

POM     They're not thinking in terms of

PL     You see this battle fighting, manifesting itself in the economy, you see in the Stock Exchange, there have been changes to the Stock Exchange but when it comes to what they call black empowerment, black economic development and so on, there have been big strides but one doesn't get the sense that the process is going as fast as it can. There are setbacks after setbacks.

POM     There have been serious setbacks in the last 12 18 months where what began as black empowerment ended up back in white hands.

PL     That's right. That's a fact.

POM     How does one, like many black people that I talk to in townships, see black empowerment as a few black guys getting very rich off the stock market, they're not benefiting, they're just some more black millionaires out there.

PL     But let me say this, it's a difficult picture to deal with but I'm extremely encouraged. There are many people on both sides who are aware of the enormity of the challenge before us and I am a great believer in reconciliation. I think the younger generation are growing up going to school together, those who can afford to be together, in greater and greater numbers. I think that represents some real change but it's going to take long and I'm afraid there is no panacea but I am extremely hopeful.

POM     It's five o'clock. I'll let you get back to work. Will you be here in the new year?

This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. Return to the Nelson Mandela Centre of Memory site.