Human Rights and the South African Legal Order

by John Dugard

Overview

As an Advocate of the Supreme Court, John Dugard observes the South African legal order daily in operation. In this book he provides a thorough description and probing analysis of the workings of the system. He places South Africa's legal order in a comparative context, examining the climate of legal opinion, crucial judicial decisions, and their significance in relation to contemporary thought and practice in England, America, and elsewhere. He also considers South Africa's laws in the light of its history, politics, and culture.

Originally published in 1978.

The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Product Details

ISBN-13:	9780691612836
Publisher:	Princeton University Press
Publication date:	03/08/2015
Series:	Princeton Legacy Library , #1240
Pages:	492
Product dimensions:	5.90(w) x 9.10(h) x 1.10(d)

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Human Rights and the South African Legal Order

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By John Dugard

PRINCETON UNIVERSITY PRESS

Copyright © 1978 Princeton University Press
All rights reserved.
ISBN: 978-0-691-10060-9

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CHAPTER 1

Introduction

This is a study of the South African legal system and of the part it plays in the South African body politic. The emphasis is upon law and not politics. No attempt is made to describe or to examine the political structure except in so far as it impinges upon the legal process. The reader in search of a comprehensive study of the "South African problem" is advised to read one of the many excellent texts on modern South Africa. What follows in this chapter is no more than a thumbnail sketch of the peoples of South Africa, their method of government, their legal system and its personnel. Its purpose is to lay the foundation upon which the rest of this study seeks to build.

1. South Africa and Its People

South Africa is over five times the size of Great Britain, or larger than Germany, France, and Portugal put together. The country is divided politically into four provinces — the Cape Province, Transvaal, Natal, and the Orange Free State. In addition there are six limited self-governing territories for the African people, known as homelands, namely the Ciskei, kwaZulu, Lebowa, Gazankulu, Venda, and Qwaqwa. In October 1976 Transkei, which had been granted limited powers of self-government in 1963, became an independent state, and in 1977 Bophuthatswana was likewise granted independence. The principal cities of South Africa are Johannesburg, Cape Town, Durban, Pretoria, Port Elizabeth, and Bloemfontein.

South West Africa occupies an anomalous position. To the international community it is Namibia, an internationalized territory with an administering authority situated in the United Nations headquarters in New York. To most South Africans it was hardly distinguishable from a fifth province until developments in 1974-1975 indicated an intention on the part of the South African Government to grant it independence. Although there will inevitably be occasional reference to Namibia or South West Africa this study does not aim to include this territory within its scope.

The estimated population of South Africa (including Transkei) of over 26 million is composed roughly of 18,600,000 Africans, 4,300,000 whites, 2,400,000 colored people, and 746,000 Asians. In keeping with the policy of racial fragmentation, the main racial groups are further divided into ethnic units. The principal African ethnic groups are the Xhosa, Zulu, Sotho, and Tswana groups. The white population is broadly divided into Afrikaans-speakers and English-speakers, with the former constituting over fifty per cent of the white population. The individual's political, social, and economic status in society is dependent on the racial group, and sometimes sub-group, to which he belongs.

English and Afrikaans are the two official languages of the Republic, and Bantu languages are recognized as additional official languages in the self-governing homelands. There is no established church in South Africa, but the majority of whites belong to the Dutch Reformed Church and most members of the ruling Afrikaner elite profess adherence to its doctrines and dogmas. Other Christian churches that have large followings among all racial groups are the Anglican, Roman Catholic, Methodist, and Presbyterian Churches; and, in addition to other recognized denominations, there are some 2,000 different sects that draw support from the African population. There are about 120,000 Jews in the Republic.

South Africa has had a chequered constitutional history since the first white settlement. In 1652 the Cape was occupied by the Dutch East India Company for the purpose of establishing a refreshment station for the ships of that Company en route from the Netherlands to the Dutch East Indies. Dutch rule was replaced by British rule from 1795 to 1803 when Britain occupied the Cape in order to protect the sea route to India against the French. In 1803 it was restored to the Netherlands, then the Batavian Republic. For three years it was governed by men familiar with the revolutionary ideas that were sweeping Europe, but on the renewal of hostilities between France and Britain, the Cape was reoccupied by the British. From 1806 to 1910 it was a British colony. During the nineteenth century the eastern frontier of the Cape was gradually extended, and in 1843 Natal was annexed by Britain. In the meantime groups of Dutch settlers, disenchanted with British rule, moved into the interior and established the Orange Free State and South African Republic. The Anglo-Boer War of 1899-1902 resulted in the annexation of these republics by Britain. In 1910 the four British colonies of the Cape of Good Hope, Natal, the Orange River Colony, and Transvaal joined in the Union of South Africa which became a self-governing dominion. The last legal fetters were removed by the Statute of Westminster in 1931, when South Africa became an independent state within the British Commonwealth of Nations with the King of England as symbolic head of state. In 1948 the National Party Government came into power with its policy of apartheid (best translated as "separateness," "apartness"). In 1961 the South African Parliament converted the state from a monarchy into a republic, and in the same year, the South African Government withdrew its application for continued Commonwealth membership when other members voiced their objections to South Africa's racial policies.

Legislative power is vested in a central Parliament consisting of a lower house (House of Assembly), an upper house (Senate), and the State President. Political power is concentrated in the House of Assembly which consists of 165 white members, elected by white voters only in single-member constituencies. The Senate, consisting of 55 white senators who are either elected by white provincial electoral colleges or appointed by the Government, may only delay the passage of a bill approved by the House of Assembly. The State President is a constitutional figurehead with powers similar to those of the Queen of England. The leader of the dominant party in the House of Assembly is appointed Prime Minister by the State President and constitutes a cabinet which forms the executive government of the Republic.

Parliamentary supremacy is basic to the constitutional structure of South Africa. Parliament may make laws on any subject it pleases and no court of law may enquire into the validity of any act of Parliament except one which affects the equal language rights; but even in such a case the court may only inquire whether Parliament has followed the correct procedure. Normally a bill is passed if it obtains a majority vote in both Houses of Parliament, sitting separately, and is approved by the State President; but, where the equal language rights are at issue, a joint session of both Houses of Parliament must be held at which the bill must be passed by a two-thirds majority vote before it is forwarded to the State President for his approval.

The twenty-one million black people enjoy no representation in the central Parliament. Nor are they represented in the Provincial Councils which have limited legislative powers over the provinces. African political power is confined to the six homelands, each of which has a legislative assembly with powers substantially similar to those of the Provincial Councils. The Colored Persons Representative Council, which has a very limited lawmaking capacity, caters for the political aspirations of the colored people, while a largely advisory body, the South African Indian Council, constitutes the Indian people's sole political institution in the body politic.

Politics is sometimes described as South Africa's national sport but, like many other sports in South Africa, it is largely for whites only. There are five white political parties: the National Party, which has been in power since 1948 and which transformed the largely conventional system of racial segregation that had existed before that date into the aggressive ideological policy of apartheid; the Re-established National Party (Herstigte Nasionale Party) whose leaders broke with the National Party in 1969 and formed a right-wing, ultra-conservative political party; the United Progressive Federal Party, the official opposition, formed from the Progressive Party and the leftwing of the old United Party, which favors a policy of racial integration, federation, and a qualified franchise for all who meet certain educational qualifications, irrespective of race; the New Republic Party, in essence the old United Party, which favors white supremacy and political segregation, but opposes economic separation and the territorial division of the country; and the South African Party, a conservative party drawn from the rightwing of the old United Party. In the 1977 election, the National Party won 134 seats, the Progressive Federal Party 17, the New Republic Party 10, the South African Party 3, and the Herstigte Nasionale Party none.

In 1960 the popular African political organizations, the African National Congress (A.N.C.) and the Pan-Africanist Congress (P.A.C.), were declared unlawful organizations. In 1968 racially mixed political parties were prohibited, as a result of which the non-racial Liberal Party disbanded and the multi-racial Progressive Party became all white. Black political parties are recognized for the purposes of the homelands' legislative assemblies and the Colored Persons Representative Council, but the Government is unwilling to tolerate black political parties that operate outside the framework of government policy. A Black People's Convention, established in 1972 to unite the black people of South Africa, was rendered leaderless by administrative action taken against its main office bearers, before it was finally banned together with other black consciousness organizations in October 1977.

South Africa cannot be described as a democracy. It is more aptly described as a pigmentocracy in which all political power is vested in a white oligarchy, which in turn is controlled by an Afrikaner élite.

2. The South African Legal System

The South African legal system is described as "contemporary Roman-Dutch law" by those who seek to revive its Roman-Dutch past and as "South African law" by those who recognize and accept its present hybrid nature. The main components of the system are Roman law, Roman-Dutch law, and English law.

Roman-Dutch law, consisting of Germanic custom supplemented by Roman law, was developed in the seventeenth and eighteenth centuries by the writings of practising and academic lawyers and by the decisions of the courts in Holland and its associated provinces of the United Netherlands. It was brought to the Cape in 1652 by the Dutch East India Company and remained the common law of the Cape throughout the period of Dutch hegemony. British rule did not drastically alter the position. The Cape Articles of Capitulation of 1806 allowed the inhabitants to retain "all their rights and privileges which they have enjoyed hitherto" and many saw in this statement a preservation of the existing common law. Roman-Dutch law was further protected from extinction by the English common-law rule that "the laws of a conquered country continue in force, until they are altered by the conqueror." Although Roman-Dutch law remained the common law of the Cape it fell an easy prey to English legal influence. One reason for this was that the system was no longer able to draw on the intellectual stimulation provided by the development of the law in Holland, for in 1809 that country itself discarded Roman-Dutch law in favor of the Code Napoléon The main reason, however, was the pervasiveness of English influence.

"Some English institutions marched into our law openly along the highway of legislative enactment, to the sound of the brass bands of royal commissions and public discussion. Others slipped into it quietly and unobtrusively along the side-roads and bypaths." Obvious English intrusions were courts modelled on the English pattern, the jury system, and the English law of criminal procedure and evidence — all innovations of the period 1827 to 1834. English mercantile statutes on company law, merchant shipping, insurance, and negotiable instruments were openly borrowed with few modifications to meet local conditions. Less obvious was the influence brought to bear by the appointment of English judges, by the insistence on an English legal training for advocates, by the introduction of English as the official language of the courts, and by the acceptance of English methods of legal reasoning. Also, the introduction of the English system of government brought with it the principles of English constitutional law.

Roman-Dutch law, together with its English trimmings and appendages, was exported to the Trekker Republics and to Natal. In 1910 all four British colonies in Southern Africa accepted Roman-Dutch law as their common law and, at the time of Union, it became the common law of South Africa. Today Roman-Dutch law is still the common law of South Africa, but it is not the Roman-Dutch law of the seventeenth and eighteenth-century Dutch jurists. "Whether we cherish the idea or not, during its prolonged sojourn in South Africa the old 'two layer cake' [of Roman and Dutch law] has collected a third layer, English law." Some do not cherish this idea and have urged that South African law be purified by removing its English legal influences wherever possible. This school, which consists of academic lawyers and a small number of judges, in some ways resembles von Savigny's school of historical jurisprudence in its insistence on the purity of antiquarian law. Although this school of "purists" enjoyed considerable support in the 1960's during Chief Justice Steyn's tenure of office it seems to have lost ground in recent years.

Contemporary Roman-Dutch law is not the only common law in force in South Africa. In some instances tribalized Africans may have recourse to African customary law which regulates, inter alia, customary marriages, succession, and guardianship. As the present study is concerned largely with the law governing relations between state and individual, which falls outside the scope of African customary law, no further reference will be made to this system.

3. The Courts and the Legal Profession

The Supreme Court of South Africa consists of an Appellate Division, seven provincial divisions (the Cape, the Eastern Cape, the Northern Cape, Natal, Orange Free State, Transvaal, and South West Africa) and three local divisions (Durban and Coast Local Division, the Witwatersrand Local Division, and the South-Eastern Cape Local Division). All provincial and local divisions are courts of first instance, while the provincial divisions also act as courts of appeal from the lower courts (magistrates' courts). The Appellate Division, which in 1950 replaced the Privy Council as the highest appellate tribunal in South Africa, is a court of appeal only. The Supreme Court has jurisdiction over both civil and criminal matters. Its powers to make orders in both cases is unlimited and it alone may impose sentence of death in the case of capital offences.

The Appellate Division consists of a Chief Justice and ten Judges of Appeal. The present Chief Justice is Mr. Justice F.L.H. Rumpff. In appeals affecting the validity of a statute the quorum of the court is eleven. In civil appeals it is five, and in criminal appeals, three. Each provincial division consists of a Judge-President and a varying number of puisne judges. The Transvaal Supreme Court Bench, for example, comprises twenty-nine judges, while the Northern Cape Division has three judges. The three local divisions are staffed by judges of the provincial division of their respective areas.

Judges are appointed by the State President-in-Council i.e. the cabinet. They retire at the age of seventy and may be removed before that time only by the State President at the request of both Houses of Parliament in the same session, on grounds of misbehavior or incapacity. No judge has yet been dismissed in this manner. Appointments are made from among the advocates (barristers), and usually from the senior advocates or "silks" (Queen's Counsel before 1961 and now Senior Counsel). On rare occasions members of the public service are appointed to the Bench: for example, Chief Justice Steyn, who retired in 1971, was a government law adviser before his elevation to the Bench. Such appointments are unpopular with the legal profession, and in 1950, when Chief Justice Steyn was first appointed to the Transvaal Bench, the Johannesburg Bar refused to appear before him for some time.

(Continues...)

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Table of Contents

• Frontmatter, pg. i
• Contents, pg. vii
• Preface, pg. xi
• Acknowledgments, pg. xv
• Abbreviations, pg. xvii
• Part One. The Legal Framework, pg. 1
• Part Two. Human Rights and the Law, pg. 51
• Part Three. The Political Trial, pg. 203
• Part Four. The Judicial Process and Human Rights, pg. 277
• Part Five. A New Approach to Law, pg. 389
• Bibliography, pg. 403
• Table of Statutes, pg. 421
• Table of Cases, pg. 435
• Index, pg. 445