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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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

The Legal Struggles For A Democratic South Africa During The 1980's

In 1994 the representatives of the South African Parliament were democratically elected under a constitution which had been agreed at a forum attended by all political parties, whatever their support , known as the Multi-Party Negotiating Process. That constitution which was referred to as the Interim Constitution was replaced two years later by a ' final 'constitution agreed to by a now democratically elected Constitutional Assembly .1

Both the interim and final Constitutions were extensively written documents covering a full range of civil, political and ,in the case of the final constitution, social and economic rights. Seven years earlier South Africa had been governed under a set of draconian emergency laws which had rendered almost all political opposition to the National Party government illegal and had empowered the security forces to detain political opponents of the government almost at will. The barest of figures illustrates the magnitude of this oppression . Between January 1984 and March 1988 approximately 45000 people were detained without trial in terms of security legislation and emergency regulations .During 1986 alone 11006 people were imprisoned for political unrest crimes , including public violence, arson , assault , murder, and malicious damage to property. 2

This paper examines the legal debates which took place during the 1980's which , it will be contended assisted in the remarkable development of the attainment of a social democratic constitution within less than a decade of the employment of the full repressive weight of emergency rule.

Rights discourse period leading up to the 1980's.

It is somewhat simplistic rendition of South African legal history during the twentieth century to it constituting a simple polarity between a liberal rights discourse and the rise of the apartheid state with the concomitant entrenchment of a comprehensive security apparatus.

Writing in the late 1980's Andre du Toit observed that this representation of legal debates in South Africa was simplistic for " At various times Calvinism, Christian- Nationalism and indigenous variations of Fascism and National-Socialism were proposed as alternative ideologies with distinctive justificatory and legitimating principles of social and political policy. There can be little doubt that the political philosophy developed and such works as Stoker's Stryd om the Ordes .. or PJ Meyer's Demokrasie of Volkstad" offered radical ideological challenges and alternatives to liberalism. By and large those ideological challenges was spent in the 1930's and 1940's and they had not spawned any sustained ideological movements. In short, though liberalism was politically defeated, the ideological alternatives to the liberal principles of justice rights have not been convincingly sustained either, and we seem to be seeing a partial, ambivalent and unclear resurgence of those very liberal principles in current public policy and debate".3

The scope and purpose of this paper does not permit a comprehensive examination of these debates. Suffice it to refer to the political and legal contest that emerged as a result of the report of the Wiehahn Commission into Labour legislation in 1979 which promised some improvement to the position in law of black workers and their representative organisations provided that latter register with the Department of Labour. This initiative of the apartheid government unleashed an intense debate within the independent trade union movement which was reproduced in the pages of the South African labour bulletin.4 Much of the debate concerned participation in the system proposed by the government which some argued would lead to a bridgehead from which the structure of apartheid/capitalism could be undermined whilst others argued that such a participation would inevitably lead to co-option in terms of which the burgeoning trade union movement would be neutralised and labour struggles defeated. This latter approach is illustrated in the following passage from an article of Martin Nicol ' Registration and the widening possibilities for legalism contained within it will further tend to bureaucratise unions, will further remove the union from the control of the workers. The insidious effects of the South African industrial relations system are not enshrined in the operation of Industrial Councils but in the tradition of legalism and anti organisation which it has nurtured.' 5

Examined jurisprudentially the debate turned on the question of law as an instrument of capitalist power which was contended for by those who cautioned against participation in the Wiehahn system as compared to the protagonists of participation who based their arguments on the contradictory and dialectal quality of law which would allow for space in terms of which trade unions could advance the gains for workers.6

This debate was replicated in different areas throughout the decade at certain law faculties by a minority of staff and students , pursued the inside and outside the lecture halls and most importantly in trade unions. Similar debates relating to more general questions of law took place in the practising profession , albeit within an extremely small group mainly sourced in the public interest legal sector, such as the Legal Resources Centre, Lawyers for Human Rights, The National Association of Democratic Lawyers, The Black Lawyers Association and the Centre for Applied Legal Studies7.

During this period there was a furious debate among academic lawyers and even a judge about the need for judges to resign . Delivering his inaugural lecture Raymond Wacks argued that the fundamental injustice of the South African legal system made it impossible for a judge to do justice. Thus a resignation would ' be a statement of judicial despair and outrage. It would be an assertion of the judge's absolute fidelity to justice, a protest against the abuse of law. '. 8Many replied to this call .The essential basis of the replies was that although activism on the part of judges and lawyers conferred legitimacy on the system of apartheid, there was room for the advancement of human rights which outweighed the disadvantages of granting the system some legitimacy . 9

The National Party and rights

Significantly the National Party had began to consider some form of legal reformism during the 1980's. In 1982 the Constitutional Committee of the President's Council produced a report in which it recommended the establishment of a tricameral parliament in which Coloured, Indians (but not Black South Africans) would be represented. The report accepted a measure of consociational theory in making provision for inter-group conflict resolution by means of joint committees of the different houses but it maintained the fundamental idea that the white constituency would retain an overall majority. There was some debate as to whether the tricameral system should include a bill of rights. This was rejected. But the debate had begun even in government circles. Two years later , a group of Dutch Reform Church theologians published a document which was argued for a human rights code and in 1986 the Federated Chamber of Industries published a Business Charter of Socio-economic and Political rights.

At the opening of Parliament in 1986 the then President , PW Botha said "We believe in the sovereignty of the law as a basis for the protection of the fundamental rights of individuals as well as groups. We believe in the sanctity and indivisibility of law and the just application thereof We believe that human dignity, life, liberty and property of all must be protected, regardless of colour, race, creed or religion.10 Notwithstanding the brutal use of repression, the extensive use of detention without trial as a legal means to curb political opposition during the period of the 1970's leading into the 1980's, this speech reflected the ambiguous conflict between official policy and rhetoric as well as emerging strategies and practices which increasing coexisted around a rights discourse. This rights discourse became all the more relevant with the rise of organised extra parliamentary opposition to the government by the majority of the population .

The rights discourses of 1980's and political struggle

The most significant consequence of the Tricameral Parliament in 1983 was the emergence of the United Democratic Front. It was launched 6 months before the National Party held a whites only referendum to decide on the introduction of the Tricameral system. The UDF was established on the 20th April 1983 at a conference at which 575 organisations were represented.11 The conference declared that there would be a united democratic South Africa, free of Bantustans, group areas and based on the will of all the people. The UDF proclaimed itself to be a front rather than a political organisation and aimed at the establishment of a consensus amongst the founding organisations

The initial campaign focused on the constitutional referendum and the election of new black-self local authorities. In August 1984 the UDF claimed the allegiance of 648 affiliated organisations with over 2million members.12Of particular significance was the re-emergence of the Freedom Charter which had been accepted as the central document of the African National Congress and the Congress Alliance at the Congress of the People in Kliptown, near Johannesburg in 1955.

This document contained the seeds of much of what appeared in later Bills of Rights. Although the Freedom Charter was presented as response to the National Parties vision of Apartheid South Africa , as the ANC leader at the time , Albert Luthuli observed " It is thus a practical and relevant document. It attempted to give a fresh and blood meaning, in the South African setting, to such words as democracy, freedom, liberty.13

The model society envisaged in the Freedom Charter was based upon a democratic society where "South Africa belonged to all who lived in it". It proclaimed that no government could claim authority unless it was based on the will of the people. All national groups would have equal rights, ' the people shall share in the country's wealth, the land shall be shared among those who work it, all shall be equal before the law, all shall enjoy human rights, there shall be work and security, the right to form trade unions and enter contracts with welfare legislation, the doors of learning and culture shall be opened There would be houses, security and comfort.'

The Freedom Charter offered a powerful vision of a democratic alternative to apartheid. ; a government based on the will of people , universal suffrage, equality for the law , civil liberties, free trade unions and redistribution of land , state education and welfare, equal pay for equal work, the abolition of apartheid legislation and the transfer of private monopolies in mining industry and finances to ownership to the people . Its vision was a far more consistent and coherent concept of political democracy than had previously been proposed by the liberation movement in South Africa. the oppression of the 1960's and into the 1970's the Freedom Charter had ,to an extent, taken its toll and the Charter was placed on a political back burner .The rise of the UDF in the 1980's meant that it once more took its place as a central political document on the South African landscape. The depth of political activity as well as the rights discourse that existed had its effect on the apartheid government .

In 1986, the government's destruction of the rule of law and its determination to govern through emergency regulations notwithstanding, the Minister of Justice announced that he had directed the Law Commission to investigate the role of the courts in the protection of group rights and individual rights and to consider the desirability of introducing a Bill of Rights.14 It was clear that this initiative formed part of a new strategy developed by the National Party to preserve the political status quo by conflating rights talk with group rights, the latter defined essentially in terms of race classification, an initiative that had gained urgency after the manifest to failure of the tricameral initiative. Until 1986 the government had adamantly rejected repeated entreaties for the entrenchment for basic rights.15

The Law Commission under the leadership of Judge PJ Olivier took many progressive lawyers by surprise .After extensive research and consultation, the commission in its working paper of March 1989 recommended a full list of protected rights to be granted to the individual and effectively reject the group rights . That these recommendations took place against the background of the terror of successive states of emergency was surprising but it was clear (perhaps with the benefit of hindsight) that constitutional guarantees of limited government and minimum rights had already formed an important part in talks that had begun between the ANC and government leaders behind closed doors.

Rights discourse began to dominate the political arena. The radical critique of liberal human rights discourse which had been reflected within South African discussions in the late 1970' and early 1980's was replaced by an intensive debate over the role of a bill of rights in a democratic South Africa. Albie Sachs, at the time an important intellectual within the ANC, contended that a bill of rights was compatible with the ideals of the Freedom Charter and the struggle for national liberation provided that it was not interpreted too narrowly.16

Sachs wrote a lengthy paper which was secretly distributed among many political activists And members of the progressive legal community in which he argued that a bill of rights which incorporated first, second and third generation rights and which would be justifiable (save that the final judicial authority could not be the existing courts).17 ANC activists , who had recently been released from prison, Raymond Suttner and Jeremy Cronin, published a book dealing with the Freedom Charter in which its application to contemporary South Africa was set out in considerable detail.18 The emergency, notwithstanding, the issue of an entrenched constitution with a comprehensive bill of rights was now firmly on the legal agenda. The Freedom Charter vs liberal constitutional instruments was on the agenda at a conference that took place at the University of Pretoria convened by members of the Law Faculty on 1 & 2 May 1986 and attended by judges, academics, as well as activists including members of the United Democratic Front.19 The major division at the conference turned less on content and more on whether a genuine bill of rights could be adopted only by the formally oppressed once they had won their freedom.

Enter the ANC

Following upon by recommendation as its KABWE Consultative Conference in 1985 , the ANC issued a draft document in March 1988 entitled 'Constitutional Guidelines for a Democratic South Africa.'20 The preamble to the Constitutional Guidelines reads as follows " We..submit to the people of South Africa, and to all those throughout the world, who wish to see an end to apartheid, our basic guidelines for the foundation of government in a post apartheid of South Africa. Extensive and democratic debate on these guidelines will mobilise the widest sections of our population to achieve agreement on how to put an end to the tyranny and oppression under which our people live, thus enabling them to lead normal and decent lives, free citizens of a free country".

The Guidelines contained 25 clauses. The objective of these clauses were sourced in the Freedom Charter and was set out as being ' To create a just and democratic society' the removal of discriminatory laws and the eradication of all vestiges of the illegitimate regime, 'corrective action which guarantees a rapid and irreversible redistribution of wealth and the opening up of all facilities to all' as well as ' to promote the habits non-racial and non-sexist thinking, the practice of anti-racist behaviour and the acquisition of genuinely shared patriotic consciousness'. In addition, the guidelines suggested that 'the constitution must guarantee equal rights for all individuals, irrespective of race, colour, sex or creed" and entrench "equal cultural linguistic and religious rights for all' without granting any protection for group rights as this would lead to the perpetuation of the economic and inequality and injustice of the status quo.

The Guidelines envisaged a unitary democratic and non-racial state in which all organs of government would be representative , it encouraged participation by all the people and sought to ensure the efficiency of administration .by providing that the central government would be permitted to delegate powers to sub-ordinate administrative units. Governmental authority would be based on popular sovereignty, by means of universal franchise . The State had to attempt to cultivate a single national identity and be tolerant of linguistic and cultural diversity. The State, through a Bill Rights, based on the Freedom Charter with 'appropriate' enforcement mechanisms would be under a duty to eradicate racial, economic and social discrimination and to outlaw 'the advocacy or practice of racism, fascism, nazism or the incitement of ethnic or regional exclusion or hatred'. The State must further guarantee ' basic rights and freedoms '(both civil-political and socio-economic in nature) and the participation of those political parties which respect the provision on discriminatory behaviour in all its forms. The State would have the right to determine the general context in which economic life took place, but within the framework of a multi-sector economic plan and the constitutional protection of property for personal use and consumption. Economic reform was contemplated in relation to the correction of the maldistribution of land and there had to be constitutional protection of workers rights in general. Similarly the protection of the rights of women, the family, parents and children was contemplated.21

Zola Skweyiya, then chair of the legal and constitutional committee of the ANC ,described the document as not only being " for a post-apartheid South Africa. It is an ideological instrument, a morale booster and a clarification of our objectives in our present struggle against apartheid".22 The Guidelines were widely debated in and outside South Africa. A delegation of South African academic lawyers drawn in the main from Afrikaans language universities, met with the ANC under the leadership of Thabo Mbeki in Harare in February 1989 to debate the guidelines and to establish a consensus for the promotion of a rights discourse in a future South Africa became Once serious negotiations began, as they did in 1990, the law was inevitably going to play an essential role in any settlement and transfer of power. Both the National Party through the Law Commission and the ANC through the Constitutional Guidelines had made the Bill of Rights a central plank in their political programmes. Unsurprisingly thus , when the Declaration of Intent was published at the close of the first session of the Convention for a Democratic South Africa (CODESA) in 1991 the following principles which were central to a constitutional democracy were agreed by the parties: an independent , impartial and non- racial judiciary , regularly elections an universal adult suffrage; separation of powers; an entrenched and justiciable bill of rights and a legal system which guaranteed equality before the law.23


An examination of the rights debates which took place during the 1980's reveals that the competing political forces began to frame their programmes increasingly in terms of rights .While it has been the argument of this paper that rights discourse never disappeared from public debate , the political annihilation of liberalism in racist South Africa meant that there was little political substance to rights talk until the 1980"s

It is important not to emphasise the point. The retentive quality of a rights discourse which survived more than 40 years of National Party attempts to destroy the rule of law was a necessary, but certainly not a sufficient condition for the achievement of the constitutional democracy which emerged in South Africa during the 1990's. A comprehensive analysis must look to the political conditions of the period.

A political stalemate had been reached by mid 1980's. At that point it was clear that the apartheid state could no longer contain the growing political unrest which had engulfed the country At the same time the ANC and the UDF seemed unable to achieve a knockout blow. Hein Marais commented thus on the position 'It was not so much the prospect of arevolution that had jolted the apartheid mangers : it was the likelihood the state and opposition would become entangled in a death embrace that could that could destroy South Africa 's integrity as a nation state and available zone for capital accumulation ' .By contrast the ANC's insurrectionary variation of the armed struggle was complemented by the Nelson Mandela since channel which Nelson Mandela opened in 1986 with the regime ' which suggests an acute awareness on his part of the foolhardiness of that strategy( the armed struggle) ".24 The ANC's main objective had in fact never been a military victory but a means to force the regime to the negotiating table, where a constitutional compact could then cement the negotiations .

On the side of the National Party, the unreconstructed racism of John Vorster and PW Botha lead to a situation where the National Party had moved far too late to enable it to retain any form of effective political power. Its limited ability to curb political opposition stood in contrast to its 'achievements' of the early 1960's. It was only left with the option of introducing a constitutional agenda into the negotiating process to retain as much of the status quo as possible.

But that strategy had severe limitations. As Heribert Adam et al have written "Given all the external and internal factors conducive to negotiations, what made the critical difference from the dominant Afrikaner minority's side in the transition was an autocratic leadership style within the National Party, the personality of De Klerk that combined a newly experience moral shift with political expediency and a strategic miscalculation as well as susceptible negotiators were out-manoeuvred in terms of the logic and assumptions of majoritarian democracy".25

Although the constitutional negotiations went very much the way of the ANC, De Klerk had little room to do more than to ensure that the constitutional compact reflected some of his party's proposals at the margins. Four years earlier on the 26 August 1986, the chairperson of the Anglo-American Corporation, Gavin Reilly, had set out the demands of big business for the introduction of a post-apartheid South Africa thus. "Amongst uswe have reached an agreement that statutory apartheid must go, that the political process be opened up by the release of prisoners of conscience, that political parties, currently banned, must be allowed to operate within the rule of law and that real attempts be made for constructive negotiation between all parties in South Africa".26

The poitical struggles of the 1980's located as they were in the economic changes that had taken place since the 1970's left the ANC best situated to meet these demands , particularly through its constitutional guidelines which guaranteed a legal framework of far greater certainty and predictability for the constituency represented by Mr Reilly than anything the National Party was able to offer or implement in the late 1980's. The reality was that as the 1980's came to an end the ANC was manifestly the only organisation that could hold the country together. A rights discourse refracted through the prism of the politics of nationalism of the ANC produced the constitutional result that governs the country at this time.

The National Party had thought that it might be able, through more skilful negotiation, to impose its vision of a constitutional compact on South Africa as the negotiations began in 1991. It only made the process toward written constitution more certain .

The combination of the outcome of the political struggles of the 1980's together with the nature of a rights discourse which was never removed from the public domain ensured the attainment of the constitutional democracy which has developed over the past eight years in South Africa.

Implications for the Middle East

The immediate and obvious difference between the conditions which pertained in South Africa of the 80's and Israel /Palestine of the present is that any compact which is achieved in the latter context is unlikely to deviate from a variant of a two state solution .Hence negotiations which seek to create conditions for constitutional patriotism will take on different form in the Middle East context

But that is not to conclude that the South African experience of legal struggle has no relevance to the Palestinian struggles. Although falling out of the scope of this paper, law has played an important role in the manner in which Israel has sought to reinforce its oppression of Palestinians and in legitimating many of the gains Israel has made at the expense of the Palestinians . The land laws which have operated since the since the establishment of the State of Israel , utilising forms of law that operated from Turkish times have there parallel's in the history of land dispossession in apartheid South Africa. Detention without trial , torture and confessional policing are techniques which have operated in both systems . Even the use of the political trial has eerie similarities.

These developments notwithstanding , there is a rights discourse in Israel, the Basic Law which enshrines dignity represents a greater possibilities to those that confronted South African lawyers in the 1980's and there are progressive legal institutions within the country. Were Palestinian organisations to adopt the ANC approach and develop constitutional guidelines of their own , possibilities for some form of constitutional confederalism may begin to see the light of day .

While that may well be an optimistic slant on the South African story, what is clear is that without the existence of a rights discourse on both sides, constitutional guarantees will not play much of a role in securing a peaceful future.

Source: http://www.columbia.edu/cu/sipa/REGIONAL/IAS/documents/davis.doc

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