This resource is hosted by the Nelson Mandela Foundation, 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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Historical Background: The Judiciary
The judiciary, like every other institution in South Africa, both actively and indirectly, aided and abetted apartheid. While some in the old South African legal establishment might take umbrage at such a sweeping statement, the Truth and Reconciliation Commission (TRC), after exhaustive investigation of judicial processes and practices during the apartheid years came down hard on the judiciary. The argument that the function of the judiciary is to interpret laws made by the legislative branch of government and apply the laws in accordance with judicial criteria looses its moral authority when the laws are patently unjust and discriminatory and the legislative branch has either a questionable or no legitimacy in its own right or in terms of the norms of international practice. If the law itself is unjust, there can be no just application.
The judiciary funneled tens of thousands of Black South Africans through the apartheid courts. Most had no legal representation. White, male judges and magistrates turned them into "criminals," compounding racial polarization.
In its submission to the TRC, the ANC, whose members had suffered much at the hands of the judiciary, lambasted it:
At the highest level there was clear support for apartheid, since many judges were political appointees. Selected judges were in many cases put in charge of political trials and were responsible for the judicial murder of people fighting against apartheid. In many cases these judges allowed evidence that was extracted under torture or duress. By not condemning the practices of the apartheid security police and the methods they used to "construct" their cases, judges implicitly sanctioned them and gave apartheid terrorism laws a veneer of legal respectability. Together with magistrates and prosecutors they were quick to defend or cover up police brutality and thereby facilitate the work of the apartheid security system, in routinely finding that people who had undoubtedly been tortured and injured had died after "falling off a chair" or "slipping down a staircase".
Judicial commissions produced ideologically oriented reports, which promoted the goals of the state or covered up its culpability in cases of gross human rights violations. Examples abound -- the Schlebush Commission of the 1970s, the Kannemeyer Commission investigating the Uitenhage massacre in 1985, and the Harms Commission. Law societies and bar councils, which are supposed to be the watchdogs of law and legal standards, struck from the roll anti-apartheid activists convicted of crimes against the state, including Bram Fischer, Ntobeko Maqubela, Kader Hassim, M.D. Naidoo and Rowley Arenstein. In the 1980s, in particular, innocent people were charged with "public violence", when in fact the violence arose from the police and not the public - as in the infamous Trojan horse case in Cape Town.
It was indisputable that the courts meted out severe punishments to opponents of apartheid and many were racists of the first order. One judge in particular - Justice HHW de Villiers - is deserving of mention because he personified an attitude at the time with which many whites were sympathetic. The judge, who retired in 1961, wrote a book on the Rivonia trial. His characterization of the African population:
The Bantu is still at the stage where the Roman people were at the time of the fall of the Roman Empire when the populace shouted, "Give us bread and the Circus!" … The primitive Bantu is still a killer. The Zulu war cry "bulala!" can still stir them into a frenzy of uncontrolled aggression and murder. They can so easily be persuaded to kill. One must always remember we have to do with a primitive people; even higher education does not eradicate their superstitious beliefs in a generation or two.
The judge's book was an argument for the death penalty in the Rivonia trial. Clearly, had he been on the bench, he would have sentenced Mandela, Sisulu, Mbeki, Kathrada & their comrades to death.
South Africa had one of the highest rates of judicial execution in the world. Between 1960 and 1994 over 2, 500 people were hanged – 1,154 between 1976 and 1985. Over 95 per cent of all people executed were African and the death penalty was far more likely to be imposed if the victim of a capital offence was white and the perpetrator Black.
Although the vast majority of executions were for criminal offences, capital punishment was also used against those found guilty of political offences, in defiance of the Geneva Convention. South Africa was a signatory to the 1949 Convention, but declined to sign the 1977 addenda extending the definition of prisoner of war to captured guerrilla fighters.
Accordingly, the death penalty could be imposed under a number of laws. The first 'political hangings' took place in 1959. In 1961, approximately twenty people were sentenced to death after the Pondoland revolt. In the 1960s, almost one hundred Poqo activists (the armed wing of the PAC) were hanged for involvement in acts of violence. On 6 May 1964, three ANC members in the Eastern Cape were hanged after having been found guilty for killing a person suspected of informing on the ANC. From 1976 onwards, a number of MK members were sentenced to death and executed.
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In most of the submissions the TRC received from the judiciary there was a recurrent theme. They argued that the doctrine of parliamentary sovereignty under the Westminster system required of lawyers (and especially judges) to respect, and indeed to defer to, the will of the majority in Parliament, thus denying the courts the opportunity to fashion statute law to achieve a degree of justice in the face of legislated injustice. In other words, the 'intention of the lawgiver' was the supreme guide in the interpretation of statutes.
But where there was some room for maneuver, particularly in the construction and development of the common law, or where clear statutory ambiguity permitted, lawyers argued for and judges mostly adopted an interpretation that favored liberty and equity.
It was further argued that any attempt by the judiciary to simply circumvent the unjust effects of apartheid measures would have led inevitably to further legislative steps to reverse such decisions or to the overt subversion of the formal independence of the courts and the 'packing of the Bench'.
Thus, while there were examples of judicial decisions, behaviour and professional conduct that were clearly unjust and ought to be apologized for, and while most submissions conceded that much of what happened in and around the administration of justice ought to have been resisted and condemned openly and forcefully by individual lawyers and the organised profession, the record of judicial impartiality and pursuit of justice was, nonetheless, satisfactory, if not good.
At no stage, had there been any question of direct interference with the administration of justice by the executive or the legislature, in particular where disputes before the courts were concerned. In a nutshell, it was argued that an administration of justice and a legal order that preserved a limited degree of impartiality and independence was better, in all circumstances, than a legal system that was completely subservient to the will and whims of the political masters in Parliament.
Not surprisingly submissions from bodies associated with the liberation movement took issue with these propositions.
For them, lawyers and the courts under apartheid, with very few and notable exceptions, had co-operated in servicing and enforcing a diabolically unjust political order. They argued that it made no sense to invoke a defence of parliamentary sovereignty. The validity of such a defence depended on at least a substantial degree of democracy in the political order, as well as a basic respect for the rule of law as a direct or necessary adjunct to legislative omni competence. Neither prerequisite was present to any significant degree in South Africa. Judicial independence was a myth that had been exploded in the daily experience, particularly in both the magistrates' and superior courts.
They further argued that several meticulously researched empirical studies since the mid-1970s demonstrated that a judicial partiality towards the legislature and executive was in fact a fact of life. The practicing and teaching legal professions had willingly acquiesced in apartheid's subversion of justice. Practitioners and academics who dared challenge the political and legal order were not supported by their colleagues but were, more likely to be ostracized by them.
As a result, the basic fabric of the legal system had been subverted and become rotten with injustice.
The TRC weighed the merits of these competing claims and then issued its findings:
Part of the reason for the longevity of apartheid was the superficial adherence to 'rule by law' by the National Party (NP), whose leaders craved the aura of legitimacy that 'the law' bestowed on their harsh injustice. Significantly, this state of affairs was not achieved in the early stages of NP rule. It began after the Coloured vote crisis in the mid-1950s, when the restructuring of judicial personnel and the Appellate Division took effect, and the white electorate lent its support to the constitutional fraud resorted to by the government to circumvent the entrenched clauses of the South Africa Act. It was manifestly abandoned when emergency executive decree became the chosen medium of government towards the end of formal apartheid - from the mid-1980s - when a climate of 'state lawlessness' prevailed and the pretence of adherence to the rule of law was abandoned by the Botha regime.
In the intervening thirty years, however, the courts and the organised legal profession generally and subconsciously or unwittingly connived in the legislative and executive pursuit of injustice, as was pointed out by a few at the time and acknowledged by so many at the hearing. Perhaps the most common form of subservience can be captured in the maxim qui tacet consentire (silence gives consent). There were, nevertheless, many parts of the profession that actively contributed to the entrenchment and defence of apartheid through the courts. The Pretoria Bar refused to admit Black members and only passed an apology for its racism in October 1997.
There are many other examples:
Prosecutors who knew that the police had used brutal means to extract information from suspects assisted such interrogators from being questioned too closely on their methods. Security police were often called into the office of the prosecutor before a court hearing and given the questions that would be put to them in court, together with the answers they should give. They would also be coached on what to say.
Attorneys-general too easily launched prosecutions or granted 'no-bail' certificates on flimsy evidence.
Magistrates uncritically granted police search and seizure warrants, and conveniently found no one responsible for injuries and deaths in detention at inquests. There were several inquests where nobody was found responsible.
Attorneys failed to accept an unpopular political person as a client, perhaps for fear of social ostracism or the loss of lucrative commercial clients.
Advocates were willing to appear for the government in civil actions where some of the basic building blocks of apartheid, such as racial classification or influx control or group areas, were being attacked as the unreasonable and invalid exercise of executive discretion.
Law teachers chose to concentrate on 'safe' areas of the law or to teach in such a way that no critical ability was imparted to the students.
Students chose to be blinded by the glamour and material returns of the conventional mainstream of the profession, neglecting his or her potential role as a fighter for justice for all in South Africa.
In the greatest injustices of all, judges too easily made sense of the illogical and the unjust in legislative language, and too quickly accepted the word of the police or official witness in preference to that of the accused.
The judiciary unthinkingly allowed judicial policy to be influenced by executive dictate or white male prejudice; was intent on maintaining and protecting the status quo; willingly participated in producing the highest capital punishment rate in the 'Western' world by the mid-1980s and an execution-rate that impacted overwhelmingly on poor Black male accused.
The organised professional bodies were obsequious in their attitudes to government policies, hounding those of their members who chose to buck the system politically. The GCB stated in its submission that the basis for striking Bram Fischer off the role of advocates was that he had dishonorably breached his undertaking to the court to stand trial. They dismissed suggestions that political considerations had any part in the application. Whilst the GCB apologized to the family, the apology was qualified and besmirched their conduct even more. Indeed, the Fischer family testified that the striking off of their father was done with indecent haste and was regarded by Bram as the "worst professional and personal betrayal he experienced".
The organised profession took no effective initiatives to make the administration of justice more accessible to those who could not afford it, not at least until apartheid's days were numbered. Their complacency in the face of the challenges thrown up by government injustice internally, and their defensiveness in international forums when foreign lawyers' organisations dared criticise, are matters of public record.
To summarize: The TRC, after weighing the merits of competing claims, came to the conclusion that substantive resistance to the injustice of apartheid by a significant number of lawyers would have undermined its effectiveness and betrayed its reliance on brute force - even if only through a prosecutorial authority reluctant to act and a judiciary uncomfortable with its complicity in injustice.
In reality, few chose to resist.
Judges had a choice. They could have been more "alert" to government abuse of power in the power vacuum created by the "whites' only" legislature and the absence of basic fairness in the citizen-state relationship. They could have been more "alert" to the embedded injustice in a system in which they adjudicated on the basis of laws passed by a parliament elected by a white minority with the franchise and applied them to the Black majority who had no say whatsoever in their formulation.
And while it could be argued that the die was cast immediately after Union by a judiciary, which acquiesced in segregationist policies, so that by 1948 (and certainly 1960), the courts were locked into the overwhelmingly passive mindset that characterised their judgments in the face of brutal injustices of apartheid, the TRC was unwilling to give the thesis much credence:
While this may be partially true, the horrific extremes to which Parliament and the executive went to implement apartheid should surely have provided the basis for judges and practitioners, had they wished to do so, to resist such encroachments on basic rights and fairness, using the skills and knowledge which they manifestly possessed and arguing from common-law principles. And if such a concerted stand had moved the government formally to curtail the jurisdiction of the courts, then perhaps the degeneracy of its policies would have been laid bare earlier and more devastatingly.
No matter how much slack is given, circumstances taken into account, the judiciary was a willing agent of the state and its actions perpetuated apartheid, was inherently unjust and no amount of rationalizations could excuse its actions. It was complicit, an instrument of oppression, an abomination to the ethos it professed to follow.
Perhaps the best case the judiciary might have made for itself would have been to put it in the context of the belief system that was the cornerstone of Afrikaner resistance to Black rule: the subjugation of Afrikaner nationalism and the volk for a third time in less than a century, the imposition of Communist totalitarian rule. At least these fears were real, even if they were unfounded. But when they invoked legal arguments to justify their actions under apartheid, they failed to distinguish between the content of a legislative act and justice. By invariably ruling in favor of the former, they became - of their own doing - instruments of injustice accountable to no one.