Abstract
Justice in South Africa divided black from white. They thought the legal system operated in a political vacuum; that the determining of fact and fairness could be sealed off from Apartheid; that the white monopoly of legal power was as irrelevant to the character and functioning of the legal system as the colour of an airline pilot is to the aeroplane; that the inaccessibility to blacks of legal advice and representation was at worst a moral eyesore; that whatever the criticisms made about the erosion of the rule of law in police cells, detention centres, prisons, and whatever the attacks directed against laws passed by Parliament, South Africa’s common law was colour-blind, and that once inside the courts, litigants found the white judge applied the law without reference to race or status.
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Notes
L.C. Steyn, ‘Regbank en Regsfakulteit’, (1967) 30 THRHR 101–7, 106–7.
J. Dugard, Human Rights and the South African Legal Order, Princeton: Princeton University Press, 1978.
H. Corder, Judges At Work: The Role and Attitudes of the South African Appellate Judiciary, 1910–50, Cape Town: Juta, 1984;
C. Forsyth In Danger For Their Talents: A Study of the Appellate Division of the Supreme Court of South Africa from 1950–1980, Cape Town: Juta, 1985.
D. Dyzenhaus, Hard Cases In Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy, Oxford: Clarendon Press, 1991.
S. Ellmann, In A Time Of Trouble: Law and Liberty in South Africa’s State of Emergency, Oxford: Clarendon Press, 1992.
C. Forsyth and J. Schiller, ‘The Judicial Process, Positivism and Civil Liberty II’, (1981) 98 SALJ 218–30;
J. Dugard, ‘Some Realism about the Judicial Process — A Reply’, (1981) 98 SALJ 372–87.
J. Fitzjames Stephen, QC, ‘Legislation under Lord Mayo’, in W.W. Hunter, A Life of the Earl of Mayo, fourth viceroy of India vol. II, London: Smith, Elder, & Co., 1875 169.
A. Sachs, Justice In South Africa, Berkeley: University of California Press, 1973 262.
C. Albertyn, op cit 49–65; C. Sumner, ‘Rethinking Deviance: Towards a Sociology of Censure’, in C. Sumner (ed.), Censure, Politics and Criminal Justice, Milton Keynes: Open University Press, 1990 15–40.
See M. Chanock’s incisive essay An Ecology of Coercion. Criminology, Criminal Law and the New State. South Africa 1902–1930, unpublished, 1990.
R. Gordon, ‘The White Man’s Burden: Ersatz Customary Law and Internal Pacification in South Africa’, (1989) 2(1) Journal of Historical Sociology 41–65.
For how some chiefs exploited their power, see H. Bradford, A Taste of Freedom: The ICU in Rural South Africa 1924–1930, New Haven: Yale University Press, 1987 48.
Between 1981 and 1987 the Natal code was reformed so that women were no longer deemed to be perpetual minors; M. Lupton, ‘The Natal Code of Bantu Law — A Legal Dinosaur’, (1978) 95 SALJ 152–5;
for the KwaZulu code of Zulu law of 1981, J. Bekker and J. Coertze, ‘The KwaZulu act on the code of Zulu Law’, 1981 (1983) 46 THRHR 285–96;
for the Natal code of Zulu law 1987, J. Bekker, ‘The two new codes of Zulu Law’, (1990) 53 THRHR 180–9.
T. Bennett, Application of Customary Law in Southern Africa: The Conflict of Personal Laws, Cape Town: Juta, 1985 27–32.
Lucas’ Trustee v. Ismail and Amad 1905 TS 239, 247; A. Van der Walt and D. Kleyn, ‘Duplex Dominium: The History and Significance of the Concept of Divided Ownership’, in D. Visser (ed.), Essays on the History of Law, Cape Town: Juta, 1989 213–60, 248–50, 258–60.
C. Murray, Black Mountain: Land, Class and Power in the Eastern Orange Free State 1880s to 1980s, Edinburgh: Edinburgh University Press, 1992 37–47.
E.g. Sobhuza II v. Miller [1926] AC 518 (PC) 525; St. Catherine’s Milling and Lumber Company v. The Queen [1889] AC 46 (PC) 58 and 54. The way the courts should and could have interpreted indigenous land tenure is examined by K. McNeil, Common Law Aboriginal Title, Oxford: Clarendon Press, 1989.
In the aftermath of the revolt courts martials had 4700 Africans flogged, some 700 of them so severely that their backs were lashed to ribbons, and imposed a large number of death sentences, all of which were commuted to life imprisonment with hard labour. A Special Court established at the insistence of the Colonial Office tried the ringleaders and imposed far lighter sentences; S. Marks, Reluctant Rebellion: The 1906–8 Disturbances in Natal, Oxford: Clarendon Press, 1970 236–7, 293–8.
R. Edgar, Because They Chose The Plan Of God: The Story of the Bulhoek Massacre, Johannesburg: Ravan, 1988 33.
Mandela v. Minister of Prisons 1983 (1) SA 938 (A); E. Mureinik, ‘Fundamental Rights and Delegated Legislation’, (1985) 1 SAJHR 111–23.
In 1986 the National Education Crisis Committee, a public interest group of parents, teachers and community leaders, was held to lack the standing necessary to challenge government education regulations. NECC v. State President of the Republic of South Africa WLD 9 September 1986, unreported but discussed by C. Loots, ‘Keeping Locus Standi in Chains’, (1987) 3 SAJHR 66–76.
Laubscher v. Native Commissioner, Piet Retief 1958 (1) SA 546 (A) 549E–G, and the additional examples in L. Baxter, Administrative Law, Cape Town: Juta, 1984 577–8.
Judge van Blerk ibid 259C, translated by M. Wiechers, Administrative Law (English ed.), Durban: Butterworths, 1985 219. Judge D. Botha (261H–262A) rejected the appeal on the basis that expropriation was akin to taxation and a citizen had no right to be heard before paying taxes.
Staatspresident v. United Democratic Front 1988 (4) SA 830 (A). In 1986 the South African Law Commission condemned the distinction between administrative acts and quasi-judicial ones, (South African Law Commission, Investigation into the Courts’ Powers of Review of Administrative Acts, Working Paper 15, Project 24, Pretoria, 1986 at 4.4.2.) and in 1989 the Appellate Division took the hint and abolished it; see Administrator, Transvaal v. Traub;
J. Grogan, ‘When Is the “Expectation” of a Hearing “Legitimate”’, (1990) 6 SAJHR 36–47;
C. Forsyth, ‘A Harbinger of a Renaissance in Administrative Law’, (1990) 107 SALJ 387–400.
Minister of Law and Order v. Hurley 1986 (3) SA 568 (A) 579B; Kabinet van die Tussentydse Regering vir Suidwes-Afrika v. Katofa 1987 (1) SA 695 (A); E. Mureinik, ‘Security and Integrity’, 1987 AJ 197–219, 213–16. In 1988 the Appellate Division ruled that police powers to ban meetings did not have to be framed in subjective terms in order to confer ‘a purely subjective discretion’ onto a local divisional police commissioner; Van der Westhuizen NO v. United Democratic Front 1989 (2) SA 242 (A) 250J, 251C, discussing regulation 7(1) reprinted at 248A–G; L. Boulle, B. Harris, C. Hoexter, Constitutional and Administrative Law: Basic Principles, Cape Town: Juta, 1989 318–19.
Scholtz v. Cape Divisional Council 1987 (1) SA 68 (C); B. Harris and C. Hoexter, ‘Administrative Law in Contractual Disguise’, (1987) 104 SALJ 557–64. In the post-Apartheid era the Appellate Division ruled that the demands of natural justice prevented a public body from summarily terminating a worker’s contract of employment, no matter what the fine print said; Administrator, Transvaal v. Zenzile 1991 (1) SA 21 (A);
C. van den Heever, ‘Audi Alteram Partem, Contracts and Existing Rights’, (1991) 7 SAJHR 203–8.
Sibanyoni v. University of Fort Hare 1985 (1) SA 19 (Ck) 30I; E. Mureinik, ‘Natural Justice for Students: The Case of the Undisciplined Contract’, (1985) 1 SAJHR 48–51; Mkhize v. Rector, University of Zululand 1986 (1) SA 901 (D);
J. Hlophe, ‘Natural Justice: Do Students have Rights?’ (1987) 104 SALJ 255–8.
South African Law Commission, Investigation into the Courts’ Powers of Review of Administrative Acts, Working Paper 15, Project 24, Pretoria, 1986 23.
Minister of Law and Order v. Dempsey 1988 (3) SA 19 (A); E. Mureinik, ‘Pursuing Principle: The Appellate Division and Review under the State of Emergency’, (1989) 5 SAJHR 60–72, 67–9. Two years later in During, NO v. Boesak 1990 (3) SA 661 (A) the Appellate Division unanimously restored the onus of proof to where it had rested prior to Dempsey, saying (at 663G) that the earlier decision ‘was clearly wrong and should not be followed’. Judge Joubert, who silently concurred in Dempsey, mutely acquiesced in its burial.
South African Law Commission, Investigation into the Courts’ Review of Administrative Acts, Project 24, Working paper 34, Pretoria: 1991, 4.1.15. Its own suggestion (at 4.1.16) was that the courts would apply common law presumptions to the construction of regulations, just as they do to statutes, and that the ‘adoption and development [of these requirements] by the courts would serve as justification’.
H. Morris, The First Forty Years, Cape Town: Juta, 1948 64.
F. McCleod and F. Kaganas, ‘Statement on Sentencing’, (1985) 1 SAJHR 106–10, 108.
In 1985 the Human Sciences Research Council awoke to the fact that the legal system suffered from a ‘legitimacy crisis’ due to its control by whites and because it was perceived as ‘inaccessible and incomprehensible to many’, The South African Society: Realities and Future Prospects, Pretoria: HSRC, 1985. Its answer (166–7) was a package of measures, including ‘training, legal aid, guidance and reform, since mistrust of a legal system is one of the strongest incentives for revolution’.
J. Dugard, op cit 13. By the mid-1980s all but 10 per cent of attorneys and 7 per cent of advocates were white, though only a small proportion of these non-whites were Africans. D. Mokgatle, ‘The exclusion of blacks from the South African judicial system’, (1987) 3 SAJHR 44–51, 46–7.
Although the Civil Imprisonment Act 2 of 1977 abolished immediate civil imprisonment for debt, magistrates retained the power to gaol defaulting debtors, even those with no money, prompting the observation from Judge van Dijkhorst that, ‘Civil imprisonment has, therefore, been re-introduced under the cloak of contempt of court.’ (Quentin’s v. Komane 1983 (2) SA 775 (T) 778.) Between 1977 and 1984, 56 264 people were sentenced to civil imprisonment for debt. South African Law Commission, Report on Committal to Prison in respect of Debt, Project 54, Pretoria, 1986.
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© 1998 Peter Parker and Joyce Mokhesi-Parker
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Parker, P., Mokhesi-Parker, J. (1998). The Law and the State. In: In the Shadow of Sharpeville. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-14617-8_3
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