PART TWO—
THE MODERN MACHINE

Chapter Five—
Judicial Attitudes towards Race in South Africa

The Unification of the Courts—The Supreme Court of South Africa

The setting up of a Court of Appeal for the whole of southern Africa was frequently mooted in the 1890s, both for its own sake and as a suggested precursor of political union. The judges and advocates in the Cape, the Orange Free State and the Transvaal had sufficient in common to regard themselves as belonging to the Brotherhood of the Bar: nearly all were Cape-born, where they had studied at one or two selected schools before proceeding to Universities in Holland and England. In general they were agreed on the need to maintain Roman-Dutch law as the common law of South Africa, they supported the use of English styles and procedures in court, and favoured co-operation between Englishman and Afrikaner in all walks of life. They were also at one in believing that justice should be done to dark-skinned South Africans, preferring, however, not to define the term justice too precisely.

The Cape Law Journal claimed that it could not but be a gain to South Africans to possess a small society of men of guaranteed qualifications for taking part in public affairs, generally with the time and opportunity for reflection on subjects legal, social and political. The occasion for this observation was the holding of a Bar dinner in Cape Town in honour of the Free State President, a former member of the Cape Bar and one time Chief Justice of the Free State. Amongst the assembled guests were judges and advocates from all parts of South Africa (1890).

Yet this barristerial bonhomie was unable to survive the bitter tensions generated by British attempts to secure control of the Transvaal and when in 1899 the Boer Republics finally declared war on the British Empire, the man who signed the final proclamation was the former guest of honour at the Cape dinner. In fact he went even further and fought with a Boer commando until the bitter end (F. W. Reitz).

The Anglo-Boer War (1899–1902) divided the legal profession just as it divided the white population of all South Africa. This was no ordinary war, wrote J. C. Smuts, but a vast tragedy in the life of a

people. Judges and advocates in the Boer Republics rode with the commandos as legal advisers, and then became involved in the fighting, during which some died, some were captured and others emerged as famous guerilla leaders. Amongst the prominent jurists in the Boer forces were two future Prime Ministers of South Africa, Smuts and Hertzog, both of whom distinguished themselves as resourceful and daring commando generals. After an outstanding career at Cambridge, Smuts had joined the Kruger Government as State Attorney, and during the war he changed from "a slender, slightly built man, clean-shaven with the pallor of a student, to a broadened, hardened person with the bronzed face of aseasoned guerilla and a small beard". Frequently during the war he was said to have been seen with a gun in one hand and a book on international law in the other. Hertzog resigned as a judge a week before war was declared, and after organising courts martial and explaining the rules of international law to the soldiers of the Orange Free State, he gradually assumed military command and became a trusted and skilled leader. On the Boer side there were also three future Chief Justices of South Africa; one was wounded in action and sent as a prisoner of war to Bermuda (J. de Villiers), another fought to the end in the Transvaal (N. de Wet) and the third acted as military censor (Curlewis). Three Transvaal judges rode to the front, while Transvaal prosecutors suffered particularly heavily. One senior prosecutor was killed in action, another died in a prisoner of war camp, a third was executed by the British for distributing illegal pamphlets, while a fourth was imprisoned and disbarred in England for urging that an anti-Boer lawyer in Johannesburg be disposed of (Krause). Amongst the younger volunteers in the Boer ranks were three newly qualified lawyers recently returned from Holland who twenty years later were to establish the first Afrikaans-medium law faculty in South Africa, and so pave the way for the ultimate Afrikanerisation of the Judiciary (Bodenstein, Malherbe, H. Verloren van Themaat).

Thus a whole generation of Boer lawyers were profoundly affected by the war, although it is interesting to observe that they later tended to be far less hostile to the British than subsequent generations of Afrikaner lawyers tended to be (Roos, Pirow, Vorster).

Lawyers in the Cape and Natal were not as directly involved in the fighting as their counterparts to the north but much of their work in court related to problems raised by the war. One judge was caught in the siege of Kimberley where he administered martial law during a period of what the Law Journal called "vigorous shelling and repeated

attacks by unreasoning enemies" (1899). Another judge proceeded nervously on the Western Circuit, where the guerillas were very active, encouraged, he observed sarcastically by the assurance of the Lord High Chancellor in London that it was "only a sort of a war" ("true this was in the course of an after-dinner speech and therefore not quite as binding as an utterance from the woolsack or in the Judicial Committee" (Laurence).

About a sixth of reported judgements in the Cape dealt with problems that arose directly or indirectly out of the war, many of them about the status of captured rebels and the relationships between ordinary and martial law courts. Chief Justice de Villiers was so distressed by the conflict that he came close to nervous collapse; in his judgements he favoured the supremacy of the civil over the military courts in areas away from the battle, and he also adopted a softer attitude than one of his colleagues towards Cape rebels, holding that they should be treated as belligerents rather than as criminals.^[1] An eastern Cape judge, William Solomon, who was also destined to be Chief Justice of South Africa, was placed at the head of a special Treason Court to try leading rebels-the rank and file were amnestied-and he imposed sentences ranging from a fine to two years' imprisonment.^[2] The British Army were dissatisfied with these lenient sentences, and set up martial law courts of their own, which sentenced hundreds of Cape rebels to death, thirty-five of whom were executed.

A case of a different sort which it fell to Solomon to decide was one in which a British soldier was tried for murdering an African prisoner, and in which the defence was raised that the accused had merely been obeying orders. Solomon acquitted the accused on the facts of the case but held that obedience to a superior's command did not automatically relieve a soldier of liability for his acts; if the command was manifestly illegal in that it was obviously opposed to the law of the land and to well-established army customs, then the soldier obeyed it at his peril.^[3] This judgement which was given ex tempore and without the aid of notes, subsequently became internationally known and was used as a precedent in the trials of Nazi war criminals after the Second World War. There were at least three other matters heard in South Africa

[1] R . v. Louw , 1904 SALJ, 387; criticised in Rebels as Belligerents , 1904 SALJ, 119, 318.

[2] Cape Treason Trials , 1901 SALJ, 164.

[3] R . v. Smith , 17 SC, 561; 1904 SALJ, 192; discussed in R . v. Werner , 1947 (2) SA, 828.

during the Anglo-Boer War period in which similar problems arose. One was the 'Calvinia Flogging' case in which the Cape Supreme Court upheld the conviction and imprisonment of a rebel who had whipped a number of captives, on the grounds that even if he had been obeying orders, as he claimed, such orders had not related to ordinary acts of warfare, and could not excuse his conduct.^[4] The other two cases were heard in the Transvaal by a special criminal court set up by the British to administer justice in the period before a proper Supreme Court bench was established, and both involved the killing of unarmed Africans by members of Boer commandos. In the one case, the killing was held to have been gratuitous and unrelated to military considerations, and the accused was sentenced to death, with a strong hint that he would be reprieved, while in the other the shooting of a man erroneously suspected of having been a British scout was held to have been justified. The court said in this second case that brutal and repugnant as the act was, it had been performed pursuant to an order "to further military operations, namely to allow of farms being cultivated to provide food while the owners are away fighting, to terrorise the natives so as to retain their services in the war and prevent them from deserting to the British or from giving the British any information or assistance".^[5] (The relevant order of the Republican Commandant was that Africans who left their place of residence without a pass should receive twenty-five lashes, while Africans found in possession of a pass issued by the British should be executed. Many Africans were in fact shot by the Boers in terms of this latter instruction.)

The sufferings of the Boers during the latter part of the war, and the bitterness caused by the execution of the Cape rebels, left lasting memories in the minds of the Afrikaner people. A contributor to the Law Journal justified stern actions by the British on the grounds that it became a military necessity to lay waste the country and remove noncombatants to safety; in terms of this policy, thousands of Boer homesteads were burnt down, and 100,000 Afrikaner civilians were concentrated into camps-hence the term 'concentration camps'-where 20,000 women and children died because of insanitary conditions.

The entry of British troops into Bloemfontein and Pretoria and the defeat of the Republican armies, shifted the centre of South African legal activity from the Cape to the Transvaal. The Cape Law Journal

[4] R . v. Louw , 1904 SALJ, 387, discussed in 1904 SALJ, 119, 318.

[5] R . v. Bodenstein , 30 Sept., 2 Oct., 1901; R . v. Bekker 23, Sept., 1901, reported in 1901 SALJ, 426.

was in the van of the move, announcing in 1900 that it would move to Johannesburg and be called the South African Law Journal . In Pretoria the British Army occupied the High Court building, where it renamed each court-room after a British general and converted the advocates' robing room into a mortuary.

After peace was concluded in 1902, the authorities placed great emphasis on reconciliation between Englishmen and Afrikaners, hoping thereby to create a united South Africa under white control within the British Empire. The Law Journal observed that henceforth the flag of Britain floated over all of South Africa, and added that ungenerous recriminations would be unworthy of the gallantry with which the war had been conducted on both sides and "unworthy of the English boast that those who fought the hardest could shake hands the most cordially afterwards" (1900, 1901). Sir James Rose-Innes, who was appointed as head of a strong Bench in the Transvaal, wrote that from his serene vantage point he witnessed that step unique in history by which Great Britain handed over to the men, but lately her gallant foes, the control of the territories she had conquered.

The policy of reconciliation was reflected in the new court systems established in the conquered Republics, and most of the Boer lawyers became active supporters of this policy. Two exceptions were ex-President Steyn and General Hertzog, both of the Orange Free State, who felt that the practical effect of reconciliation was the sacrifice of Afrikaner national sentiment on the altar of British Imperialism.

In the end the main losers from the war were not the Boers, who forfeited their independence, nor the British, who paid a heavy toll in lives and incurred expenses of £200 million, but dark-skinned South Africans. Before the war, the British had complained that the Kruger Government was guilty of oppression towards coloured persons, and during the war they had made extensive use of Africans for scouting and non-combatant duties. The war bore heavily on African and coloured persons in the rural areas, 70,000 of whom were placed in concentration camps, and they hoped that a British victory would lead to an improvement of their status. Yet they discovered that the new British regime in southern Africa maintained a colour bar not only every bit as rigid as that exercised by the Boers, but considerably more efficient. Whereas British occupation of the Cape a century earlier had led to the abolition of slavery and of official race differentiation, British occupation of the Transvaal and the Orange Free State led to a consolidation of white constitutional overlordship. The Times

History of the War observed that "many of the Kafirs looked for the millennium with the arrival of the British and expected not only that the black man would be treated as an equal but that all those in the public employment would receive their pre-war rate of pay, with arrears". When such pay was not forthcoming, some of the Africans went on strike, but the military compelled them to return to work by arresting their leaders. "The majority of the natives, however, accepted continuance of the old system under the new administration."

As far as Indian South Africans were concerned, they experienced the same expectations of better things to come followed by the same disappointments. Gandhi had sympathised with the Boers, but out of loyalty to the Empire had organised a team of Indian ambulancemen to assist the British. He wrote later that the friendliness of the British troops was encouraging, but the harshness of British officers most disconcerting. After the war he discovered that the military administrators in the Transvaal-he called them the autocrats from Asia-were ruder to Indians than the Republican officials had been. Attempts to expose corrupt persons in the Asiatic Department were invariably frustrated, and when two such administrators were eventually put on trial they were set free by a white jury.

Yet the racism of the new colonial administration in the Transvaal was to some extent tempered by the Supreme Court which was established there. The new Orange Free State and Transvaal judges were selected with great care, especially those in the Transvaal, where a strong court was required to encourage a resumption of mining and commerce and to provide a focus of stability in a divided and ravaged land. At the local level magistrates played a key role in effecting transition from military to civilian government; English was now firmly established as the dominant language of the courts, not only in the Cape and Natal, but throughout the whole of South Africa.

The Transvaal Supreme Court proved to be especially well constituted for the functions it had to perform, and earned a reputation as perhaps the best Bench South Africa ever produced. In many respects it was to become the model for all future courts in South Africa. Reconciliation in the political sphere was matched by a form of reconciliation in the juridical sphere, whereby Roman-Dutch common law was fused with English constitutional doctrine. British dominance, however, was reflected in the preponderance of English-speaking persons on the Bench and the use of English as the main language of the courts.

Part of the strength of the Transvaal Bench was derived from the

wide range of temperaments and interests of its incumbents, four of whom were later to become Chief Justices after Union in 1910; Rose-Innes, Solomon, Wessels and Curlewis. Rose-Innes and Solomon had both acted as Attorney-General at the Cape, where they had been liberal and pro-British without being militantly anti-Boer. Wessels was a Cape Afrikaner who had migrated to the Transvaal and become the leading barrister there; during the Anglo-Boer War he had returned to Cape Town, and criticised the 'Kruger oligarchy' and those young Afrikaners who made a Mauser into a holy symbol and thought they were omnipotent because they could hit a bottle at two hundred yards (1905 SALJ). Curlewis, on the other hand, was an English-speaking immigrant from the Cape to the Transvaal who had supported the Boer forces during the war and acted as one of their military censors. In personality these four judges differed markedly. Innes was stern and honourable ("he is so upright that he bends backwards"), Wessels was scholarly but explosive ("Juniors, dying and bleeding, lay strewn all over the place. Stentor with an Oxford accent . . . if he was short of material he turned on his brother judges"). Curlewis was painstaking ("He was never wrong, but took an eternity being right. I'd sooner lose a case before anyone than win one before him"). Yet all three of them, as well as the conscientious and lucid Solomon, were strong jurists and staunch proponents of Roman-Dutch law. Innes was a master of compact exposition and Wessels an outstanding legal historian, so that although this was a period of British domination when Dutch was eclipsed as a legal language and at least half of the Johannesburg Bar as well as some of the judges were men straight out from England, it was also a period when Roman-Dutch law was consolidated and invigorated as the common law in South Africa. In 1904 Smuts, who then enjoyed a flourishing practice at the Bar, was able to state in the Law Journal that "our venerable jurisprudence has been justified of her children in the most gratifying manner.

In their approach to questions of race, the Transvaal judges applied the Cape point of view, which asserted the general equality of all before the law as laid down by English and Roman-Dutch common law, but upheld the validity of statutes which were clearly discriminatory. Thus when the Transvaal Registrar of Deeds refused to register a transfer in favour of an African on the grounds that Africans were incapable of acquiring real rights, the court declared that there was no express statutory support for this view and that accordingly the transfer had to

be registered, since all inhabitants of the country enjoyed equal rights.^[6] Similarly the Court overruled as manifestly wrong the earlier decisions of the Republican Court which had obliged Indians not only to live in proclaimed areas but also to trade there.^[7] Innes said that a power to compel Indians on sanitary grounds to live in special locations did not include the power to prevent them from trading elsewhere, and expressed surprise that the government of what was now a British Colony should put forward a claim which the British Government had for years strenuously resisted. The Court was also willing to give a hearing to a Chinese association which had collected funds for the illegal purpose of organising passive resistance (about 1,000 Chinese had joined a passive resistance campaign led by Gandhi), and granted damages to a Chinese whose premises had been forcibly entered pursuant to a general warrant to search for Asiatics illegally in the Transvaal, and not a specific warrant to search his premises. On the other hand, the Court showed its readiness to be bound by the terms of discriminatory statutes when it held that Asiatics fell within the expression 'coloured persons' as used in Town Regulations of 1899, and were accordingly prohibited from using the sidewalks of streets.^[8]

In 1910 the four British Colonies of South Africa-the Cape, Natal, the Transvaal and the Orange River Colony-were brought together into the self-governing Union of South Africa. The separate Supreme Courts of the four territories were also fused into a single Supreme Court of South Africa, divided into Provincial Divisions and headed by an Appeal Court in Bloemfontein. Chief Justice de Villiers of the Cape was made a Baron and appointed to preside over the Appeal Court as Chief Justice of South Africa. He was joined in the Court of Appeal by another Cape judge (Maasdorp) and by Innes, Solomon and Wessels from the Transvaal. All five of the Appeal Court judges were thus former members of the Cape Bar, and it was the Cape legal tradition, as modified during the period of Colonial rule in the Transvaal, that was to predominate in the new court.

The Appeal Court was seen as the embodiment of all that was fine and honourable in South African judicial life; it introduced uniformity into South African law, laid down guidelines for its future develop-

[6] Tsewu v. Registrar of Deeds , 1905 TS, 155; cf. Tsewu, SANAC (4), pp. 787–8; 798.

[7] Habib Motan v. Transvaal Government , 1904 TS, 404.

[8] Chairman v. Treasurer, Chinese Association , 1909 SALJ, 597; Ho Si v. Vernon , 910 SALJ, 308; Salujee v. Rex , 1903 TS, 13 .

ment, and established standards which were to be followed by later courts. When the judges were housed in a new building (1929), the then Chief Justice declared that the Temple of Justice, like justice itself, was beautiful in its severe simplicity.

In its majesty and strength it is itself a symbol of the majesty and strength of the law to which all alike, the judiciary, the Executive Government, Parliament, even the King himself, must bow. Above the main entrance you will not have failed to observe the emblem in sculptored stone: the Helmet of the armour of Faith, symbolical of the nation's fast faith in the justice and power of the law; the keys of Emancipation from Tyranny, where there is no law; and the Lamp and the Torches of Truth (De Villiers, 1930 SALJ).

At a bust-unveiling ceremony a short while afterwards Sir James Rose-Innes, then in his retirement after having served as Chief Justice for thirteen years, stated that the character, integrity and efficiency of its Judiciary were a priceless asset to any country, and especially a young nation such as South Africa. The confidence of all races and all sections of the people in the Bench was a sheet anchor, he declared, equipped with which the Ship of State could safely ride out storms which otherwise might overwhelm it, and people of all races realised that when a man took a seat on the Bench he stripped himself of all predilections and endeavoured only to do right to all manner of men according to law (1931 SALJ).

Other judges frequently made the point that the Judiciary stood aside from political questions and sought merely to carry out the law without fear or favour. It was claimed that in multi-racial South Africa legal positivism had rightly characterised judgements in matters of public law. Undoubtedly, this was how the judges themselves saw their role: Englishmen and Afrikaners, foreign-trained and home-educated, monarchists and republicans, liberals and conservatives, all worked together in pursuit of what they considered to be the law, a set of rules which they felt could be objectively ascertained by recognised juristic techniques in a politically neutral manner. A legal decision was to be arrived at purely by reference to established juridical criteria, which excluded all privately held political views or ethical beliefs. This has been an enduring tradition in South Africa, and when a Canadian jurist stated that South African judges in the 1950s had checked and delayed the government's apartheid programme (McWhinney), he was rebuked by the South African Law Journal for suggesting a policy behind what had simply been the dispassionate application of generally accepted

rules. The Journal also criticised what it called the futile attempt to place judges in legal or political pigeonholes (1958).

Yet the various pronouncements of the Judiciary on questions of race have indicated that the positivist tradition in South Africa has in fact incorporated a number of different philosophical and sociological standpoints, and that the courts had on some occasions deliberately rejected the dominant racial attitudes of white South Africans, while at other times they had consciously accommodated themselves to such attitudes, even when not compelled by statute to do so. The range of judicial oscillation in this area has been narrow, since the dominance of Parliament over the courts has been accepted as clear constitutional doctrine. South Africa has had no Bill of Rights and save for clauses which entrenched language rights and the non-racial franchise in the Cape, any provision in the founding South Africa Act could be amended by a simple majority. Far from guaranteeing civic equality, this Act provided for an overwhelmingly white electorate and expressly restricted membership of Parliament to white persons only. The courts did not challenge their submission to Parliament: as one Chief Justice put it, Parliament could make any encroachment it chose on the life, liberty or property of any individual subject to its sway, and it was the function of the courts to enforce its will.^[9] Nevertheless there was a narrow but not unimportant field in which the courts could influence the character of public life, primarily by their control over the way statutes were implemented. The courts were frequently called upon to interpret ambiguous provisions in racially differential statutes, and to review the regulations of statutory bodies and the actions of administrative officials. There was also an area of common law unaffected by statute where the courts had to consider whether or not the question of race had any legal relevance in itself. Finally, judges and magistrates often made remarks, both on and off the Bench, which indicated their general attitudes to race and revealed how thinking along racial lines influenced their judicial behaviour.

Judicial Attitudes to Race

The new Appeal Court was soon confronted with a question in which racial attitudes were crucial. In 1905 the Cape Parliament had for the first time provided that special schools should be established which by law were to be restricted to children of "European parentage or extraction or descent". A white man married to a woman whose father

[9] R . v. Sachs , 1943 AD, 11 (Stratford).

was white and mother was not. entered his children at such a school, but after complaints from other parents, the School Board ordered his children to leave. He contended that he was obliged to pay rates towards the school, that no other school in the district existed for his children, and that since three out of their four grandparents were of European extraction they should themselves be classified as such and readmitted to the school. His counsel was W. Schreiner, leader of the Cape Bar and former Cape Prime Minister, who stressed the far-reaching consequences of the School Board's decision, and emphasised that the statute nowhere referred to colour but only to origin. The Appeal Court, however, unanimously rejected the application, and in their reasoning revealed how sensitive they were to dominant white attitudes in the country.^[10] Chief Justice de Villiers conceded that the statute nowhere mentioned colour, but said that the Court could not ignore the universal meaning attached to the term 'European' in South Africa, according to which a white citizen of the United States who had never been to Europe was a European, whereas a black man born and bred in Europe was other than a European. In construing a vague expression in a statute, he said, the Court should place itself as far as possible in the position of the authors.

As a matter of public history we know that the first civilised legislators in South Africa came from Holland and regarded the aboriginal natives of the country as belonging to an inferior race . . . Believing as these whites did that intimacy with the black (slaves) or yellow races would lower the whites without raising the supposed inferior races in the scale of civilisation they condemned intermarriage or illicit intercourse between persons of the two races. Unfortunately the practice of many white men has often been inconsistent with that belief, but the vast majority of Europeans have always condemned such unions . . . These prepossessions, or as many might term them, these prejudices, have never died out . . . We may not from a philosophical or humanitarian point of view be able to approve this prevalent sentiment, but we cannot as judges . . . ignore the reasons which induced the legislature to adopt the policy of separate education. . . . It is regrettable that there should be this social chasm, but undoubtedly it exists . . . It is fortunately unnecessary to decide how far back in a person's pedigree it would be allowable to go in order to decide whether his European extraction is unmixed.

[10] Moller v. Keimoes School Committee , 1911 AD, 635.

It maybe mentioned in passing that de Villiers's comments must have been read with a strong feeling of irony by many coloured people in the Cape, who were convinced that along with a number of Cabinet Ministers, de Villiers himself was not of European descent in the meaning he gave to the phrase. Judge Innes said that the court could not be influenced by the social and political consequences of a decision adverse to the applicant. The question was whether the expression 'of European extraction' meant wholly of European extraction or partly of European extraction. In his view the former was the natural meaning of the term, and in any event if one looked at the defect which the legislation was intended to remedy, it was clearly to prevent white and coloured children from associating in school. Whether the policy was wise or whether it could be effectually carried out were points on which it was not desirable to express an opnion; but clearly it could inflict great hardship on deserving members of the community, and he wished to express his individual view that the machinery for the education of children of other than European extraction seemed inadequate.

The third judge (Laurence), who had been co-opted to the court from the Cape, stressed that restrictive or disabling provisions should be construed in a liberal spirit, but that the logical effect of the applicant's contention was that children with any amount of white blood should be admitted to public schools. "It seems obvious that any attempt to carry out such a theory, bringing together pupils of all shades, would in the present state of our Society, disorganise the whole system and render it practically impossible for the educational authority to perform its statutory duties." He regretted the hardships to persons like the applicant, but only the Legislature could resolve them.

The word European as commonly used in South Africa, said the fourth judge, Japie de Villiers of the Transvaal, had no geographical meaning. Apart from the races inhabiting the continent of Europe it included an American, a Canadian, an Australian, a New Zealander and a South African. Admittedly, the term was often used in contrast with Asiatics, but even then the Jew was considered to be a European while a Turk was an Asiatic. "Although colour is not the only it is usually the chief factor in determining whether a particular person is of European descent or not. But other traits such as type of feature, hair, etc., cannot be ignored." In his view the meaning of the Act was plain.

Judge Kotze, now back on the Bench after some years in the wilderness, agreed that the statute was plain and unambiguous-the word

European meant pure European. The affidavits showed that the admission of the children to the European school would be most disastrous so far as the interests of the school were concerned. "A certain amount of sympathy must naturally be felt for the innocent children, but the appellant has no one but himself to blame in this matter. It is true he married his wife before the Act was passed, yet he could hardly have been ignorant of the conditions of life and of race existing in a country like South Africa." He agreed that the prejudice of a section of the community should not be adopted as indicative of the law, but said this proposition carried the matter no further.

From the above it can be seen that some of the judges found the crucial phrase to be ambiguous, others found it to be plain; most sympathised with the applicant, but one felt that he had only himself to blame. Yet what underlay all the judgements was acceptance of the social reality of race differentiation and an acknowledgement that the purpose of the legislation, though not expressly stated, was to prevent any mixing in a public amenity between children generally accepted as white and those generally accepted as coloured. The judges could in fact have found for the applicant without in any way straining the language of the section. Had they adopted the test of 'preponderance of blood', which was used several decades later by the Appeal Court in determining whether or not a person was 'of aboriginal descent', the application would have succeeded, since three out of four of the children's grandparents were 'of European descent'. It was thus the Court and not the Legislature which imported the element of colour into the matter.

A similar style of reasoning was adopted in a case heard two years later, in which the Appeal Court had to decide whether Syrians were debarred from owning property in the Transvaal by the terms of a statute which discriminated against persons "belonging to one of the native races of Asia, including the so-called Coolies, Arabs, Malays and Mohammedan subjects of the Turkish Empire".^[11] Overruling the decision of the lower court, the Judges of Appeal held that the phrase 'native races' was intended to be confined to coloured native races; Syrians, though natives of Asia, belonged to a white race and were accordingly not excluded from owning property. The Chief Justice stated that the whole tenor of laws relating to locations was such that the Legislature would have been horrified at the idea of confining white men, even if they came from Asia Minor, in locations like those set

[11] Gandur v. Rand Townships Registrar , 1913 AD, 250.

aside for other Asiatics. Innes, in concurring, said that if the word 'native' was not confined to coloured races, even a Jew from Palestine would be liable to be relegated to a location, compelled to carry a permit and subjected to other stringent restrictions.

Lord de Villiers died in 1914, having been Chief Justice, first in the Cape then in South Africa, for nearly forty years. His successor was Sir James Rose-Innes, who presided over the Appeal Court for thirteen years before retiring in order to make way for his close friend and colleague, Sir William Solomon. Innes has been honoured by lawyers in South Africa primarily because of his contribution to the development of Roman-Dutch law, and many persons regard him in this respect as the greatest judge South Africa ever produced. Yet he was Chief Justice at a time of war, rebellion and insurrection, and delivered a number of strong judgements on questions of public law, though relatively few which dealt directly with matters of race. Before his elevation to the Bench, Innes had been well known as a liberal in Cape politics, and after his retirement he spoke out strongly against attempts to deprive Africans of their limited franchise rights in the Cape. His dismay at the increasing racism of public life in South Africa was matched by his horror of racism in Nazi Germany, where his grandson, Helmut von Moltke, also a lawyer trained in the English tradition, was to play a leading role in the anti-Hitler opposition. Even while Chief Justice, Innes found occasion to make his liberal views known. In an address reported in the Law Journal in 1924 to mark the unveiling of a bust of W. Schreiner, he spoke in moving terms of the vision and honesty of Schreiner and his sister Olive, the famous novelist. "They belonged to that band of men and women," he declared "who had consistently maintained that racial problems can never be satisfactorily solved on lines of oppression and injustice, and that a policy which is morally wrong can never be politically right. Such persons are sometimes called cranks and visionaries by those who are irritated by their idealism, but . . . those men and women are the salt of our public and social life."

On the Bench, however, Innes stuck more rigidly than most to what he regarded as his duty in carrying out the law regardless of his personal feelings. His extra-curial statements were not repeated in court, though they did help to maintain a liberal tradition in the legal profession, which to some extent was reflected in the judgements of a later generation of Appeal Court members. In constitutional matters, Innes stressed that the courts would come to the aid of any person, whether high or

low, who was injured other than by the due process of law; but where the jurisdiction of the courts was excluded, either by the clear terms of a statute or by the operation of martial law, he accepted such limitations though not without expressing disapproval.^[12]

In two matters concerning disabilities imposed on South Africans of Indian descent, Innes found himself siding with the section of a divided court that favoured the construction more favourable to the Indians.^[13] In the one case, the Minister of the Interior had issued a notice declaring all Indians to be prohibited immigrants 'on economic grounds'. Innes and Kotze held that the Minister's notice was invalid because it applied what was in fact a racial rather than an economic test. The majority of the court held, however, that in view of the peculiar economic conditions in the country, the Minister's opinion that Asiatics as a class were unsuited on economic grounds to the requirements of the country, was not so unreasonable as to be invalid; they also held that the expression 'Asiatic person' in the nonce was intended to include only members of the coloured races of Asia. In the second matter Innes was part of the majority which held that a company had a legal personality that existed quite apart from its shareholders and directors, so that a company could not be classified as an Asiatic even if its shareholders and directors were of Asian descent.

In general, Innes was not given to making cultural generalisations about population groups, but when it came to the question of liquor he abandoned his normal restraint. Like many liberals of all racial groups, he supported withholding supplies of liquor from Africans on temperance grounds, and as Attorney-General in the Cape he had sponsored a prohibition law operating on a racial basis, which had become known as the Innes Act. In fact the enforcement of the liquor laws by means of police raids, fines and imprisonment, was to add to rather than diminish the hardship caused by drink. In an Appeal Court judgement, Innes stated that a reference to the tribes and groups referred to in the relevant statute made it clear that the intention behind the law was that liquor should not be made available to "a section of the community who from want of training and civilisation were unable to refrain from excess".^[14]

[12] Cf. Shidiak v. Union Govt ., 1912 AD, 642 at 643; R . v. Fakir ,, 1923 AD, 46; Krohn v. Minister of Defence 1915 AD, 196.

[13] R . v. Padsha , 1923 AD, 281; see 1927 SALJ, p. 17; Dadoo v. Krugersdorp Municipality , 1920 AD, 530.

[14] R . v. Kogan , 1918 AD, 521.

After Innes's retirement, Chief Justices came and went with great rapidity, since they were chosen on a basis of seniority in the Appeal Court, and like all other judges, had to retire on reaching the age of 70. In the 1930s, veterans of the Anglo-Boer War period were joined by a new generation of judges, most of whom had distinguished themselves as accomplished legal technicians at the Cape and Transvaal Bars, rather than as lawyer-politicians of the old type. When two semi-retired Nationalist Party leaders were appointed directly to the Appeal Court, considerable dissatisfaction was expressed in legal circles. One of these men soon resigned to re-enter the political arena (Tielman Roos), while the other made his mark not so much by the quality of his judgements as by being the first South African judge after Union to write his judgements in Afrikaans (Beyers, in 1932).

The question of whether local authorities could impose segregation without express authority from Parliament only reached the Appeal Court in 1934. The Provincial Divisions of the Supreme Court had for a number of years dealt with the question, generally on the basis that differentiation authorised by an Act of Parliament was valid but differentiation not so authorised was invalid. In this respect, the courts followed a well-known English case of the end of the nineteenth century,^[15] and may be said to have adopted a viewpoint considerably more liberal than that held by the bulk of white legislators and administrators in South Africa. Thus the Transvaal Division of the Supreme Court declared invalid regulations which penalised coloured persons for walking on the pavements, as it did regulations which prohibited coloured persons from riding in trams and regulations restricting skilled jobs to white persons only.^[16] In this last case, the regulations were declared ultra vires by the very judge who had drafted them, on the grounds that he could not imagine greater unreasonableness! These three sets of regulations all fell within the category of differentiation coupled with total exclusion, but the judges accepted that 'class discrimination' in itself was unlawful in the absence of express authority. In the Cape, the Supreme Court held that the reservation of a bathing place for whites only was ultra vires even if another swimming place was available for coloured persons.^[17] Thus by the time the matter was

[15] Kruse v. Johnson , [1898] 2 Queen's Bench, p. 91 at 99.

[16] Mphahlele v. Springs Municipality , 1928 SALJ, 142; Williams and Adendorff v. Johannesburg Municipality , 1915 TPD, 106; R . v. Hildick-Smith , 1924 TPD, 69; see too 1936 SALJ, 447.

[17] R . v. Plaatjes , 1910 EDL, 63.

raised in the Appeal Court, the balance of authority in the Provincial Divisions was in favour of striking down unauthorised discrimination as being in itself unlawful, whether or not coupled with inequality. The Appeal Court, however, overruled these decisions, expressing a variety of social philosophies in so doing.

The test case considered by the Appeal Court arose out of a direction by the Postmaster-General that post offices in the Transvaal be segregated along colour lines. An Indian who was refused service at a 'whites only' section of a post office, applied to court for an order declaring the direction invalid, on the grounds that the statute which gave the Postmaster-General his powers did not authorise him to impose differentiation on racial grounds. The Transvaal Supreme Court upheld the application, but the Appeal Court, by a majority of three judges to one, overruled the lower court's decision and declared the direction to be valid.^[18]

Two of the Appeal Court judges held that the mere fact of differentiation on the grounds of race, colour or religion would not serve to invalidate an instruction or by-law, in the absence of proof by whoever chose to object, that the discrimination was coupled with an inequality. Acting Chief Justice Stratford, who before his elevation to the Bench had been regarded as the most outstanding barrister in the Transvaal, said that it ran counter to principle and common sense to suggest that a by-law was invalid purely because it divided the community into White and Coloured.

The division must not be absurd or obviously designed to serve no useful purpose, as for example a classification depending on the colour of one's hair. . . . But a division of the community on differences of race or language for the purposes of postal services seems, prima facie , to be sensible and make for the convenience and comfort of the public as a whole, since the appropriate officials conversant with the customs, requirements and language of each section will conceivably serve the respective sections.

A similar line of reasoning was adopted by Judge Etienne de Villiers, a former member of the Cape Bar for whom politics were said simply not to exist. In his view, discrimination per se was not unreasonable on the mere ground of being made on lines of race or colour, no more than a discrimination on the grounds of initial letters of names would be unreasonable. Only when a discrimination was coupled with inequality

[18] Minister of Posts and Telegraphs v. Rassool , 1934 AD, 167.

would it be unreasonable. Alternatively discrimination even though coupled with equality could be ultra vires if it were gratuitous, "for instance . . . instructions that all persons with blue eyes should do their postal business in one building and all other persons in another building. . . ." Such instructions would involve a gratuitous and oppressive interference with the rights of those subject to it. The position was quite otherwise in the case of discrimination on the grounds of initial letters of names or on the grounds of race or colour, "for many reasons may be conceived upon which such discriminations might justly and reasonably be made".

The other two judges adopted quite different approaches to the matter. Judge Beyers, the former Nationalist Party Cabinet Minister and pioneer of Afrikaans, expressly doubted whether the principle of equality before the law had any application in the Transvaal, which, like the Orange Free State, had known a long historical division between Europeans and non-Europeans. Legislation applicable to the Transvaal should be construed with this in mind, he said.

The statement that all are equal in the eyes of the law cannot be unreservedly accepted. It is undoubtedly subject to considerable qualification; and as far as the Transvaal is concerned, it is a fact that Europeans and non-Europeans were never equal in the eyes of the law. Segregation runs right through our society in the Union, for example, hospitals, burial grounds, public baths and facilities, playgrounds, trams and countless other examples could be given. . . . Classification is also a marked feature of our society, e.g. smokers and non-smokers, men and women, adults and children.

He was not prepared to accept that discrimination could rest only upon express authorisation or necessary implication. Accordingly, he too felt the appeal should succeed and the validity of post office separation upheld.

The fourth and only dissenting judge (Gardiner) was a former Attorney-General at the Cape and co-author of the country's leading textbook on criminal law. The son of a bank manager, he had been an enthusiastic agitator for international socialism in his student days at Oxford, and at the Cape Bar had a reputation for championing lost causes, sympathising with the oppressed and criticising conventional policies. In his view the history of statutory discrimination created one status for the European, another and inferior status for the Asiatic, and another and more inferior status for the native. A part of a man's status was his dignitas , which varied with his status. Dignitas derived from the

inborn right of every person to enjoy tranquil peace of mind, secure against degrading and humiliating treatment; it carried a corresponding obligation on others to refrain from assailing that right.

To my mind this relegation of Indians to a non-European counter is humiliating treatment. Lord de Villiers . . . declined to ignore the colour prepossession or prejudice which exists in South Africa, and I cannot shut my eyes to the fact that the instruction in question is actuated by the circumstances that a large number of Europeans object to being brought into contact in public offices with non-Europeans, and that they regard the latter as being of a lower order of civilisation.

The argument that separation could be justified by language convenience had not been advanced by the Postmaster-General himself, and could not have been, because it was far more likely that an Indian would be understood at a counter where English or Afrikaans was spoken than at one where a Bantu language was used. The same applied to an African if the clerk were chosen because of his familiarity with Indian languages.

In view of the prevalent feeling as to colour, in view of the numerous statutes treating non-Europeans as belonging to an inferior order of civilisation, any fresh classification on colour lines can . . . be interpreted only as a fresh instance of relegation of Asiatics and natives to a lower order, and this I consider humiliating treatment. Such treatment is an impairment of the dignitas of the person affected, and it is the Legislature only that can cause that impairment.

He quoted cases from the Cape, Natal and the Transvaal which held that race distinction per se , apart from inequality, was invalid, and concluded by expressing his satisfaction that his view was in accordance with what had hitherto been the trend of judicial opinion in South Africa.

A contributor to the Law Journal criticised the majority view in this case, and especially the contention that discrimination against persons with blue eyes or brown hair would be gratuitous and invalid whereas discrimination on grounds of race was not unreasonable and therefore not invalid (1936). He pointed out that had the two senior judges of the Court (Wessels and Curlewis) not been absent, the result would probably have been different, since in their days as judges in the Transvaal they had consistently held that race differentiation per se was unreasonable unless expressly authorised. Nevertheless, he accepted that the majority view was binding and must be taken to set out the law.

The doctrine of 'separate but equal', or, as it was sometimes expressed, separate but not substantially unequal, was thereafter followed by the courts in a number of cases, the main juristic problem being to determine what was substantially unequal in any particular case. When the Nationalist Government under Dr Malan came to power in 1948 it intensified segregation measures, particularly in the Cape where they had previously not been so rigidly applied, and this led to extensive counteraction in the form of civil disobedience. The civil disobedience campaigns in turn produced a number of prosecutions, which prompted the accused to challenge the quality of facilities made available to them. The law reports for that period contain a number of cases in which the courts reaffirmed the 'separate but equal' doctrine, the leading one being a decision by the Appeal Court that railway regulations which provided the same number of coaches for white and black, but penalised blacks for entering white coaches and not vice versa , were invalid, because their effect was to allow whites the run of the whole train whereas blacks were confined to half the train. The Natal Supreme Court, on the other hand, held that the provision in a bus of soft seats for whites and hard seats for blacks did not constitute sufficient inequality to render the demarcation invalid.^[19]

One important consequence of these court cases was the enactment by Parliament of the Reservation of Separate Amenities Act, 1953, which expressly and in general terms authorised persons in charge of public amenities to reserve such amenities wholly or partially for members of any race. The effect of this Act was to give blanket authority for the provision of separate and unequal facilities. Thus at a time when the United States Supreme Court was about to strike down the 'separate but equal' doctrine as invalid, the South African Parliament entrenched not only separation but inequality. South African law had accordingly moved in the opposite direction to that followed by American law. In the early part of the century, South African law was the more 'liberal', in the sense that it forbade the provision of segregated facilities unless expressly authorised by an Act of Parliament. Later both South African law and American law accepted the doctrine of 'separate but equal'. Finally, both systems moved away from that doctrine, the American towards non-differentiation, and the South African towards separate but unequal.

[19] R . v. Abdurahman , 1950 (3) SA, 126 (AD); R . v. Mozumba , 1953 (I), 235; R . v. Zihlangu , 1953 (3) SA, 871; R . v. Lusu , 1953 (2) SA 484; R . v. Lepile , 1953 (I) SA, 225. See too R . v. Carelse , 1943 CPD, 242.

The Reservation of Separate Amenities Act applied to public amenities, but left the common law untouched with regard to administrative actions not relating to public amenities. Thus the question arose as to whether licensing boards could be influenced by racial factors in the issuing of licences, and the Appeal Court held that discrimination to a substantial degree in this field was invalid.^[20] The question flowed from the refusal of a Road Transportation Board to issue a licence to an Indian taxi driver to carry white passengers. The Transvaal Supreme Court upheld the action of the Board, stating that what the courts of one country would regard as unreasonable was not necessarily what the courts of another country would so regard. "Conditions may be different and public opinion is not necessarily the same in all countries." On appeal, Chief Justice Cendivres said he could not understand the reference to public opinion. "I do not see how public opinion is relevant to the subject under enquiry," he stated, "nor do I see, if it were relevant, how the court is to ascertain the opinion of the public which consists of Europeans and non-Europeans."

The question of the courts and public opinion was soon to arise again in the famous Coloured Voters' cases, which led to a constitutional conflict between the Appeal Court and Parliament.^[21] The issue was whether Parliament, now completely sovereign, was still bound by the entrenched clauses of the South Africa Act which provided that coloured voters in the Cape could not be removed from the common voters' roll except by a two-thirds majority of both Houses of Parliament in a joint sitting. The Government claimed that Parliament as the voice of the electorate was supreme and could by a simple majority repeal any law, including the South Africa Act. A coloured man who objected to being placed on a separate voters' roll contended that the 'entrenched clauses' were still binding, and the matter eventually reached the Court of Appeal.

The five Appeal Court judges and one additional Judge of Appeal at the time were diverse in background, training and political inclinations. Chief Justice Centlivres was a conservative liberal from the Cape Bar, who was not particularly active in politics before he became a judge but who on his retirement was to be a vigorous critic of the effects of apartheid on the Rule of Law. Judge Fagan had been more politically engaged in the Cape, generally in the ranks of Afrikaner Nationalists,

[20] Tayob v. Ermelo Road Transportation Board , 1951 (4) SA, 440 (AD), Centlivres at p. 446. See 1952 SALJ, 16.

[21] Harris v. The Minister of the Interior , 1952 (2) SA, 428 (AD).

though later he broadened the range of his political activities. Judge O. D. Schreiner, the son of W. Schreiner, had during his years of practice at the Johannesburg Bar been a supporter of liberal causes, while Judge Greenberg, the only Jew to sit in the Appeal Court, also came from the Transvaal where he had shown himself to be rather more conservative. Judges Hoexter and van den Heever were both Orange Free State men; van den Heever was a well-known Afrikaans-language poet, who had been a government law adviser under the first Nationalist Government, and who sometimes wrote his judgements in Afrikaans and often resuscitated old Roman-Dutch authorities so as to avoid reference to English law.

Had the voting been on strictly party lines, the Court might have divided three to two against the Government, but in fact it was unanimous in holding that the entrenched clauses of the South Africa Act were still valid. It also rejected a subsidiary argument advanced on behalf of the Government that the coloured voters on the separate roll would have more rights than they had had on a common voters' roll. The Chief Justice, in whose judgement the other judges concurred, declared that the entrenched clause contained a guarantee of defined rights, not of their equivalent; "the argument suggests that a spoliator may deprive me of my property if he is prepared to give something of equal or greater value in return."

When Parliament thereafter constituted itself into a High Court of Parliament with power to overrule decisions of the Appeal Court on constitutional matters the Appeal Court again unanimously rejected this as a device to by-pass the entrenched clauses, and stated that the High Court of Parliament was no court at all, but a legislative body.^[22] At this stage the sharpest critic of the Government's legal manoeuvres and the strongest defender of the independence of the judiciary was Judge van den Heever, who on any simplistic view of the correlation between past political and current judicial behaviour should have been the most sympathetic to the Government.

The Appeal Court's firm stand in defence of its limited testing right gained it an international repute but hastened its demise as a small body of venerated jurists. The Government not only enlarged the Senate so as to give itself the required two-thirds majority, but also enlarged the Appeal Court to eleven judges, all of whom were obliged to sit in any constitutional matter. This gave rise to the jibe that having failed to turn Parliament into a court, the Government was now seeking to turn

[22] Minister of Interior v. Harris , 1952 (4) SA, 769 (AD).

the Court into a Parliament. In the event, the required two-thirds majority was obtained for the removal of coloured voters from the common roll, and the Appeal Court held by ten votes to one that the enlargement of the Senate did not vitiate the procedure; Schreiner was the sole dissentient.^[23]

The enlargement of the Appeal Court was seen by some critics as a packing, and by others as a dilution of the Bench, but on any view it changed the complexion of the Court and introduced to it a number of persons whose thinking on constitutional, race and security matters was closer to that of the Government. When Centlivres retired as Chief Justice, Schreiner was passed over as his successor, and eventually in 1959 one of the new and relatively inexperienced judges, L. C. Steyn, was appointed as head of the Court. Eight years earlier, Judge Steyn had been appointed to the Transvaal Bench straight from his position as Government law adviser, and the Johannesburg Bar had been so incensed that it had organised a temporary boycott of his court sittings. His rapid judicial advancement made him Chief Justice at a relatively young age, so that he has had a longer time than any other Chief Justice except Innes to make his influence felt on the Court. The author of the first legal textbook to be published in Afrikaans (1946), he had long criticised the undue influence which he believed English law had had on Roman-Dutch law in South Africa, and the impact of his stewardship of the Court was felt in the field of private rather than of public law. The strongest criticisms of the Court under his leadership have been that it has neglected considerations of social utility, carried jurisprudential worship of authority and purity of descent to an extreme, and been unduly executive-minded in questions involving fundamental issues of civil liberties. Relatively little has been written about the Court's stand in racial matters, though it has delivered judgements in at least two matters bearing directly on the question of race differentiation.

In the one case, an African attorney's clerk appealed against a sentence for contempt of court imposed on him by a magistrate after he had refused to obey the magistrate's directive that he seat himself at a segregated table.^[24] The clerk had wished to address the magistrate on the legality of the order from the formerly unsegregated table, and the Appeal Court held that in insisting on arguing from his customary position, the clerk had committed contempt of court. Chief Justice

[23] Collins v. Minister of Interim , 1957 (1) SA, 552 (AD).

[24] R . v. Pitje , 1960 (4) SA, 709. Sec criticism in 1961 SALJ, 152.

Steyn said that the magistrate's order, although not actually promulgated in terms of the Reservation of Separate Amenities Act, was nevertheless consistent with the spirit of the Act, and that the clerk could have been as well seated at the one table as at another. Segregation in the courts was in fact so thorough that a visiting Chief Justice from New Zealand was led to observe that he could hardly see the purpose of separate witness boxes for whites and blacks, since only one witness could testify at a time (Wild, 1971).

If this case demonstrated the Court's support for apartheid in the court-room, the other case showed its support for apartheid in the social field. The latter case was especially significant because it established that the Court was willing in certain circumstances to support the doctrine of 'separate but unequal' even when it was not obliged by the Reservation of Separate Amenities Act to do so. In terms of the Group Areas Act, 1950, as amended, the Government was empowered to issue proclamations setting aside areas of land for occupation and ownership by specified racial groups, and disaqualifying members of other racial groups from living or owning property there. One such proclamation was challenged on the basis that it discriminated in gross fashion against Indians and in favour of whites. This challenge was excepted to in the Natal Supreme Court on the grounds that it could not be the foundation of a legal action, even if true in fact. The Natal Supreme Court rejected the exception and held that proof of substantial inequality would invalidate the proclamation. The matter was taken on appeal, and the Appeal Court reversed the lower court's decision, and held that substantial inequality could not invalidate the proclamation.^[25] The Appeal Court reiterated support for the principle that the power to discriminate with substantial inequality would not be attributed to the Government unless the relevant statute gave it expressly or by necessary implication.

No such power is given in the Group Areas Act, but it seems . . . to be clearly implied. The Groups Areas Act represents a colossal social experiment and a long term policy. It necessarily involves the movement out of Group Areas of numbers of people throughout the country. Parliament must have envisaged that compulsory population shifts of persons occupying certain areas would inevitably cause disruption, and within the foreseeable future, substantial inequalities. Whether all this will ultimately prove to be for the common weal of all is not for the court to decide.

[25] Minister of Interior v. Lock hat , 1961 (a) SA, 587 (AD).

The underlying premise of this judgement, which was a unanimous one of the Court, was that the judges should apply a benevolent rather than a critical scrutiny to a measure which involved wholesale interference with existing rights. From one point of view it may even be argued that the inequality was condoned precisely because it was so substantial, and accordingly could be justified as falling within the expression 'a colossal social experiment'. This case may be regarded as representing the highwater-mark of judicial support for segregation coupled with inequality, and is in keeping with the long-term trend which has been away from the English common law doctrine of assumed equality towards an acceptance of race discrimination, not merely as something harmless and neutral, but as something positively beneficial. This later position is not an unrealistic one for the courts to adopt, inasmuch as it attributes to an all-white Legislature the intention that it wishes to promote the interests of an all-white electorate; it does, however, diminish the role of the courts as self-constituted upper guardians of the large section of the population unrepresented in the Legislature. The earlier approach of declaring ultra vires unauthorised discrimination, was based on English legal doctrine which might have had some basis of fact in England but was largely fictional in South Africa. Adherence by the South African judiciary to this doctrine, however, was not due merely to slavish acceptance of English precedent, but to a desire on the part of the South African courts to play the role of "striking a balance between the interests of all sections of the population". The decision in the Group Areas Act case, therefore, marked a movement towards greater harmonisation than hitherto between the racial policy of the Legislature and the racial attitudes of the judiciary.

This development has not meant that the judges are no longer willing under any circumstances to interpose themselves between the administration and the victims of differential legislation. In a recent address to students, a Cape judge said that in the case of controversial political legislation the courts frequently had to deal with cases of hardship. "The rules of interpretation are elastic," he commented, "one sugars the pill, one says politely that Parliament could never have intended to create an injustice of that nature. What is the result? The Act goes back to Parliament, and Parliament and the Bench become involved in a sort of legal ping-pong. In the next session Parliament patches up the loopholes and fills the gaps" (Diemont). This legal ping-pong has in fact been played in relation to a number of statutes, particularly those which

purport to define what a 'white man' actually is; the Legislature may lose a few points, but it always wins the game.

The Transvaal Court thus held in 1967 that an order requiring an Indian to remove to a Group Area in which no accommodation was available to him was unreasonable and therefore invalid,^[26] and both the Transvaal and the Cape Courts, more especially the latter, have leaned heavily in favour of constructions favouring individuals adversely affected by the Population Registration Act, 1950. The principles of statutory interpretation have thus been applied in such a way that the courts have been more willing to help individuals than communities. A cynic may well amend the maxim to read De maximis non curat lex . Thus the Appeal Court rejected an argument that a Group Areas Proclamation was void for vagueness because, according to the uncontradicted evidence of a social anthropologist, its definition of 'Indian' made no sense scientifically and was an unsafe description of any individual or group ("member of a race or tribe whose national home was in India or Pakistan"). The Court held that the definition substantially reflected conventional language and would be reasonably clear to the ordinary citizen affected by it.^[27]

The concept of the 'colossal social experiment' has subsequently been used to justify massive discrimination, such as the setting aside of all the beaches in a particular area of Natal for whites only. An Indian who was convicted of going on to one of these beaches in order to swim in the Indian Ocean, appealed to the Natal Supreme Court, which upheld his conviction, observing that South Africa had a long coastline, and that the particular allocations complained of had to be seen as part of a colossal social experiment which might, unfortunately, lead to substantial immediate inequality.^[28] The charge sheet in the above-mentioned matter gives a good indication of how strong the legal underpinning of race discrimination has been, and refutes the notion that the mere observance of legal forms in itself provides some guarantee of equality. The charge alleged that the accused was guilty of

contravention of regulation 19(a) read with regulations 18(b) and 23 of the regulations made by the Minister of Lands published on 2nd February, 1962, in Government Gazette No. 169 under Notice No. R. 168, further read with Government Notice No. 1090 dated 6th July, 1962, published in Government Gazette No. 285 of 1962,

[26] S . v. Variawa , 1968 (1) SA, 711 (T).

[27] S . v. Bhoolia and another , 1970 (4) SA, 692 (AD).

[28] S . v. Naicker , 1963 (4) SA, 610 (N). Per Kennedy, J.

further read with Provincial Notice No. 37 of 1946, dated 1st August 1946, such regulations being made under section 10(1) of the Sea-shore Act, No. 21 of 1935 , as amended, and as read with regulation 424 of Government Notice No. 201 published in the Government Gazette of 16th March, 1962.

The judge commented adversely on the 'bewildering array of references' which were used to indicate to the accused that as an Indian man he was prohibited from entering a beach reserved for Europeans, but leaned in favour of an approach to the regulations which upheld their validity.

The above discussion of the case-law and of judicial attitudes should not detract from the fact that in South Africa it has been the Legislature rather than the judiciary which has been primarily responsible for giving the force of law to race discrimination. The role of the courts in maintaining race domination will be discussed in a different context at a later stage, but some attention should first be given to the attitudes of the courts to race in matters where questions of public law were not involved.

In theory South African jurisprudence has had an integrated character in the sense that, save where statute provided otherwise, the law imposed the same duties on and required the same standards of conduct of all South Africans, whether rich or poor, black or white. Limited recognition was given by statute to African customary law in matters where Africans were the only litigants, but otherwise the principles of civil and criminal law applied equally to all inhabitants of the country. Whether or not this equality was achieved in practice has been a matter of dispute. The great wealth differentials between white and black and the very limited character of legal aid in themselves reduced the opportunities for the poorer and darker sections of the community to avail themselves of what rights existed for them. Defenders of the South African legal system have maintained that within the limitations imposed by statute and by poverty, the courts have meted out a fair measure of justice to all litigants and accused, irrespective of race; critics have alleged that the prejudices which affected social life generally operated, even if in modified form, in the judicial arena as well. The present discussion will concentrate largely on the official judicial attitudes to race, though some attention will be paid to whether or not in practice formal equality has given way to actual differentiation.

In the field of civil law, the most important example of the courts' stand in favour of equality has been in relation to the assessment of

damages for pain and suffering for personal injuries received. In a Supreme Court trial heard in the Transvaal in 1948, the judge awarded an African £ 16 damages for pain and suffering after he had been shot in the penis by the (white) defendant. The judge stated that he would certainly not award the African plaintiff the same amount for pain and suffering that he would have awarded for the same pain and suffering to a person who had had more culture. Thus he would award a far larger sum of damages in the case of an injury to a 'European woman' than he would to a 'native male'. The Appeal Court emphatically rejected this line of reasoning, and said that the assessment of pain and suffering could not be determined by whether or not the injured person was rich or poor, and most certainly not by reference to his race.^[29] In raising the award to £200 and granting the appellant costs on the highest scale, the Court stated that the fact that he was an African earning only £2 per week was not evidence that he was insensitive to pain.

For African litigants the consequences of this judgement were considerable, since almost the only cases in which Africans appeared in the ordinary courts as plaintiffs in private law matters were those that resulted from personal injuries received by them. Occasionally such cases flowed from assaults, but usually they arose out of running-down cases. The existence of compulsory third party insurance in respect of all motor vehicles meant that African pedestrians, cyclists and motorists frequently brought actions against insurace companies for injuries received at the hands of negligent motorists, and the assertion of a non-racial judicial attitude towards pain and suffering meant that such Africans could acquire a capital sum through being knocked down which they could never have accumulated through a lifetime of toil.

The question of whether a man's race was part of his good reputation for the purposes of defamation actions caused South African courts considerable difficulty. There do not appear to have been any cases in which dark-skinned persons have claimed damages for being called 'coloured', 'African', 'coolie', 'Kafir', 'black', 'Hottentot', 'Bushman' or any such name, or for being called 'white', but there were a number of cases in which white persons sought to protect their fair name against statements implying that they were not white. Thus the courts held that it was defamatory to call a white woman 'a white Kafir', and to call a white man a coloured man.^[30] The allegation that a white farmer

[29] Radebe v. Hough , 1949 (1) SA, 380 at 385–6.

[30] McDiarmid v. Spence , 1909 EDC, 143; Louw v. Kielblock , 1911 CPD, 209.

was a Hottentot was held to be defamatory in its ordinary meaning without any special innuendo, and the court commented that there was an impairment of reputation when imputation was made of poverty, leprosy, bastardy or anything else which, according to the standards prevailing in the country, was calculated to bring a person into contempt, even though it might not reflect on his character. In another case an attorney who was called a 'messenger boy' claimed that these words meant that he was a youth or native or coloured person, and the court held on exception that the phrase was in fact capable of bearing these innuendoes and as such was actionable. Similarly a statement that a Labour Party candidate wished the electors to give their daughters' hands in marriage to coloured persons was held to be defamatory of him. On the other hand it was held not to be defamatory of a bus owner to say that he plied for hire amongst coloured persons.^[31]

Thus until recently there was a considerable body of authority from the various Divisions of the Supreme Court in favour of the view that to call a white man coloured was in itself defamatory. The correctness of this view was, however, called into doubt by an obiter dictum of Judge Schreiner in the Appeal Court.^[32] In Schreiner's opinion it was reasonable to suppose that to say of a person he was of a particular race would be defamatory of him, if in the circumstances he would be guilty of a crime or dishonourable conduct if he were of that race. Thus it might be defamatory of a coloured man to say that he was white if he was discovered having connection with a coloured woman, or if he were living in an area in which it would be a crime for him to live if he were white. Unless some such accusation could be inferred from the circumstances, however, he was not prepared without full argument to hold that to say of a white man that he was coloured was per se defamatory. Some support for Schreiner's viewpoint was offered in a recent case in which a white woman sued attorneys whose typist had inadvertently referred to her in a summons as a 'non-European female'. The plaintiff stated that after reading this description of herself she wept bitter tears for several nights, but the trial judge doubted whether her sorrow was genuine, and dismissed the claim on a technical point. The judge expressly left open the question whether calling a white person a

[31] Pitout v. Rosenstein , 1930, OPD, 112; De Wet v. Morris , 1934 SALJ, 269 (EDL); Brill v. Madeley , 1937 SALJ, 238; Carelse v. van der Schyff , 1928 SALJ, 101 (CPD).

[32] Maskowitz v. Pienaar , 1957 (4) SA, 195 (AD) at 197.

non-European was in itself actionable, but said that future wouldbe plaintiffs would do well to bear in mind Schreiner's obiter dictum before embarking on litigation.^[33]

As far as land law is concerned, restrictions relative to race have mainly been imposed by statute, but restrictive covenants forbidding dark-skinned persons from acquiring tide have frequently been inserted into title deeds and accepted as valid. In interpreting conditions in title deeds, the courts have taken cognisance of the fact that it is universal practice in South Africa for whites to employ African domestic servants, and that domestic service is only rarely performed by whites. In an early Natal case, residents in a 'white' suburb of Durban, successfully applied for an interdict restraining the erection of a hospital for Africans in their midst, one of the grounds being that such a hospital would cause their property to depreciate.^[34]

It is generally claimed that in South African law racial factors play no part in determining whether or not at common law a criminal offence has been committed, though they might influence the question of punishment. The one recognised exception is, significantly, in the field of sexual crime, where it has been held that in regard to the offence of amen injuria a difference in colour between the accused and the complainant may be sufficient in itself to convert a trifling injuria not in itself meriting punishment into a criminal offence. Thus an African domestic servant who had written to a young, unmarried white woman that he loved her and asked for a reply was held to have been correctly convicted, even though the same letter from a white person would not have been sufficient for a conviction.^[35] Had the declaration of love been purely Platonic, the African would not have been convicted; had the advances taken the form of physical interference, then on that evidence a white man too would have been convicted.

In other cases, the courts have tended as a matter of principle to exclude racial factors from the determination of whether or not an offence has been committed. The standard of conduct required of all South Africans has been that of a 'reasonable man', to whom is attributed the general cultural beliefs of the white community. Thus a genuine belief in witchcraft, which in traditional African society might have excused the killing of a suspected witch, was held not to excuse

[33] Taljaard v. Rosendorffand Venter , 1970 (4) SA, 48 (O).

[34] Norwood Land Co . v. North Eastern Districts Association , 1929 AD, 32; Epstein v. Avenstein , 1942 WLD, 52; Brown v. McCord , 1907 SALJ, 320; 1908 SALJ, 78.

[35] R . v. Olakwu , 1958 (2) SA, 357 (c).

homicide in modern South African law, though it did reduce the gravity of the crime.^[36] Similarly, the special customs of the San people, in terms of which a man was said to be justified in killing his wife's paramour, could not be pleaded as a defence in a murder trial, though they were accepted as providing extenuating circumstances.^[37] When judicial officers took notice of what a writer on the law of evidence has called facts established only in racial mythology (Hoffmann), their convictions were frequently upset on appeal: for example, convictions were quashed on appeal when a trial judge said: "It is well known from the experience of this court that natives can and do recognise people they know in comparative darkness, which, for a European, would make recognition quite impossible," and when magistrates asserted without evidence that Africans could make definite identifications from spoor marks, that African women submitted to rape without protest, that African witnesses giving alibi evidence were generally liars, and that an African wife would not ordinarily support the evidence ot her husband against that of her lover.^[38]

The official judicial attitude with regard to the imposition of sentence has been not to differentiate on the grounds of race. Thus a judge criticised a magistrate who, after claiming that during prison inspection he had frequently watched the imposition of corporal punishment and noted what meagre effects it had on Africans, said that white standards of punishment could not be applied to Africans.^[39] The judge stated that these observations were entirely without legislative, judicial, scientific or medical authority, and added: "No doubt some individuals are more sensitive than others to corporal punishment, whatever their race may be, but we cannot generalise and assume that one race is less sensitive than another. . . . The race or colour of the accused does not enter into the question in determining what number of strokes to inflict." The same judge, however, held some years later in a rape case that the fact that the accused was black and the complainant was white constituted an aggravating feature, since the shock to her would have

[36] R . v. Mbombela , 1933 AD, 269. More recently, however, the courts have moved towards a more subjective approach. R . v. Mkize , 1951 (3) SA, 28 (AD) the love-philtre case.

[37] R . v. Mukeirib , 1938 SWA, 4 (applying the law of the Union in South West Africa), and R . v. Kgau , 1958 (2) SA, 606 (SW).

[38] R . v. Tusini , 1953 (4) 406 (AD); R . v. Sitimela , 1962 (4) SA, 60; S . v. M ., 1965 (4) SA, 577; R . v. Mcunu , 1938 NPD, 229; R . v. Sihlanl , 1966 (3) SA, 148.

[39] R . v. Maboko , 1956 (3) SA, 144 (GWLD).

been all the greater and sentenced the African to death.^[40] A colleague of his when sentencing a white man for raping a seven year old coloured girl, stated that peace in South Africa depended to a large extent on the men of each race not laying hand on the women of other races. He did not, however, impose the death sentence, but sentenced the accused to seventeen years imprisonment. Another judge from the same Division felt it to be a mitigating factor that a white man convicted of having sexual relations with a coloured woman, was a lavatory attendant occupying a low position in white society and therefore not possessed of the moral inhibitions or class and colour consciousness of better privileged whites.^[41]

Sentencing policy has clearly been influenced by racial factors in regard to persons found illegally in possession of firearms.^[42] Generally in regard to matters seen to be affecting the security of the white man, there is a considerable body of evidence supporting the contention that black murderers, rapists and rebels have been punished more severely than their white counterparts. The racial context has been all important: homicide, rape and rebellion by blacks have been treated more severely when across the colour line than when within the same racial group. The figures for executions establish clearly that black persons who rape or kill white persons stand in far greater jeopardy of being hanged than whites who rape or kill blacks.

Thus data given in Annual Police Reports in recent years for persons prosecuted for rape across the colour line indicate that in absolute terms more white men have been so prosecuted than black or brown men; in relation to the total population, white men have been charged with inter-racial rape approximately four times as often as black or brown men (1961 to 1966). Yet in the years from 1911 to 1968 only 2 out of 132 men executed for rape were white, and both of these had been found guilty of raping young white girls. The great majority of the others were African or coloured men convicted of raping white women. No two particular cases are ever exactly alike, but when white men are never sentenced to death for raping black women, and black and brown men are frequently executed for raping white women, the inference is inescapable that racial factors do operate in the minds of judges when imposing sentences. On occasions the discrepancies in sentences have been so marked that public criticism has been offered of the Judiciary.

[40] Diemont J., in S . v. Nguhelanga , 6/10/66, unreported (Cape).

[41] S . v. Germishaysen , van Zijl. JL, quoted in Maister; R . v. D . 1960 (I) SA, 151.

[42] R . v. Mhlauh , 1954 (1) SA, 87 (c).

Thus a newspaper received several indignant letters from readers after it had carried two news items which revealed that a coloured man who had raped a white woman aged 52 had been sentenced to death, whereas a white man who had raped an Indian girl aged 9 had received 9 months' imprisonment. More recently, four young white men convicted of raping an African woman and assaulting her escort were each sentenced in effect only to receive six strokes with a light cane, in circumstances where, had the racial situation been reversed, almost certainly at least one and probably all four of the accused would have been sentenced to death. The leniency of this sentence was widely commented on, but it was in keeping with remarks made by the Penal Reform Commission of 1947 about a similar case. The Commission stated that the usefulness of strokes as an alternative to imprisonment for young offenders had been borne out by the case of four or five white scholars in their late teens who "finding a young native girl alone in the veld, succumbed to the sudden urge of sexual passion and raped her. They came from good homes where an adequate degree of discipline had been exercised. To have taken these youths from their homes; to have ended their course of education; to have placed them in prison with other offenders would have ruined their careers and spoiled their lives." By way of contrast, the Minister of Justice stated in 1955 that in the seven years he had been in office not a single reprieve had been granted to a non-European convicted of raping a European woman.

In cases such as these where light sentences are passed it is difficult not to infer that the whites are being punished more for having given in to temptation and disgraced themselves than for having done violence to the victim. To the extent that differential punishment of rapists is rationalised at all, it seems to be done on the assumption that the shock of being ravaged is much greater for a white woman than it is for a black woman; conversely, the shock of an execution is assumed to be much greater in respect of a member of the white community than it is in relation to a member of the black.

The figures for murder across the colour line present a similar picture of leniency towards whites and severity towards blacks. In the 5 1/2 years ended 30th June 1966, 189 whites were sent for trial for murdering black or brown people, whereas only 130 black or brown persons were sent for trial for murdering whites (Police Reports). In proportion to the total populations of the different racial groups, this represented white leadership in the ratio of six to one. Precise information is not

available as to what the outcome of all these trials was, but in respect of the total period 1911 to 1968, only some 85 out of approximately 2,000 persons executed for murder were white, and of these 85, only 6 had murdered persons who were not white. (Two of this latter group were convicted of killing African lovers; one of killing an African during the 1922 miners' revolt; one of killing two Africans and wounding several whites; and one of taking part in a gang murder jointly with an Indian.) There do not appear to be any published figures indicating how many of the 1,900 black or brown persons hanged for murder had killed across the colour line, but such information as is available suggests that the number runs into hundreds at least. Similarly, although a considerable number of whites are prosecuted each year for housebreaking or robbery with aggravating circumstances, it would seem that none of the 57 persons hanged for these offences in the years 1958 to 1968 were white, while only one person out of seven hanged for sabotage was white.

These figures provide substantial if not irrefutable statistical evidence in support of the charge that racial considerations do play a partwhether conscious or not-in the sentencing of prisoners. In a society where all amenities are distributed on an avowedly differential basis, it would not be surprising to find all penalties allocated with equal discrimination. Any such assertion, however, is made in South Africa at the peril of prosecution. A senior lecturer at the Witwatersrand University was prosecuted on the initiative of the Transvaal Judge-President for having published an article in the South African Law Journal in which he reported as part of a survey he had conducted that a substantial number of advocates believed that judges consciously discriminated on racial grounds when imposing capital punishment (Van Niekerk). The lecturer was eventually found not guilty of the charge of contempt of court, but the judge passed adverse comments about him and did not reaffirm in clear language the right of jurists and the public to investigate and discuss the workings of the Judiciary^[43] One of the curious consequences of this prosecution has been the subsequent appearance of a learned and lengthy article on the death sentence in South Africa, in which the author establishes by statistics what appears to be an incontrovertible pattern of discriminatory punishment, and yet is at pains to deny that the judges could possibly be capable of the very differentiation revealed in his figures.

[43] S . v. van Niekerk , 1970 (3) SA, 655.

The disparities on racial grounds with regard to the punishment of murderers and rapists can also be discerned in relation to persons convicted of crimes against the security of the State. Here, however, the greatest source of differentiation has been the action of the Executive rather than of the Judiciary. In general, white rebels have been treated with considerable leniency. The Reformers found guilty of treason after distributing guns and seizing Johannesburg at the time of the Jameson Raid in 1895 were all released within months of their conviction; four were formally sentenced to death, but the judge knew that the Executive had aready agreed to commute the sentences. The rebels in the Cape and Natal who joined the invading Boer commandos at the time of the Anglo-Boer War were all either amnestied, sentenced to short terms of imprisonment or else released shortly after the war's end. The British Army officers were so incensed at what they regarded as the dangerously lenient attitude of the Colonial Treason Courts that they insisted on imposing their own courts martial, as a result of which thirty-five Cape rebels were executed by firing squad. After the 1914 Afrikaner rebellion, during which hundreds of Government troops were killed and generals in the Union Defence Force led whole battalions over to the Germans, one officer who had fought against the Government to the bitter end was court-martialled and shot, but all the other rebels were released within eighteen months. After the 1922 Rand revolt of white artisans, in which more than 100 Government troops and police and dozens of non-combatant civilians were killed, 4 strikers were hanged, but all the others were released within two years. All persons convicted during the Second World War of crimes against the State, including persons found guilty of treason, murder, sabotage, spying and broadcasting for the enemy, were released within three years of the war's end. One of these men was a boxing champion who had gone to Germany to fight Max Schmeling and had later returned by submarine to lead a pro-Nazi rebellion;^[44] another two had killed a bystander when attempting to blow up a post office.

The harsh treatment meted out to black rebels in the nineteenth century and during the 1006 Zulu 'revolt' have already been alluded to. In the first few years of the 1960s more Africans were executed for offences with a political background than were whites executed for treason in all the major rebellions referred to in the previous paragraph.

[44] R . v. Leibbrandt and others , 1944 AD, 253.

Estimates place the figures at over fifty, which would seem to exceed the number of persons who died during the course of their campaigns. In addition hundreds of Africans were sentenced under the security laws to periods of imprisonment ranging from ten years to life, and now nearly a decade later the Government is adamant in refusing to grant them an amnesty or even the normal remission of sentence for good behaviour. At the beginning of 1970 more than 800 persons were in prison under four security laws, of whom 15 were Asian, 14 were white, 11 were coloured persons, and the rest were Africans.

There are other figures which suggest that the courts are influenced by racial factors in the course of criminal trials. Thus in recent years the acquittal rate for whites charged with serious offences has been significantly but not substantially greater in every one of the six major categories of crime used by the Bureau of Statistics. Between 1949 and 1962 the rate of acquittal for both whites and Africans increased by approximately 10 per cent to approximately 30 per cent of all prosecutions; looked at in relation to each group of crimes, however, it can be seen that the white acquittal rate exceeded that of Africans by from 4 to 12 per cent (Penal Statistics ). As far as sentences were concerned, a sociologist wrote in 1948 that in proportion to the total number of convictions for each racial group, ten times as many Africans as whites went to prison each year, either because of heavier sentences or because of greater inability to pay fines (Simons). By 1962 a total of 43,000 whites were convicted of more serious crimes, yet only 6,000 whites were received into prison. In the same year 230,000 Africans were convicted of more serious crimes, and approximately 260,000 Africans were received into prison (Penal Statistics ). Thus a large number of Africans convicted of non-serious crimes (called 'law infringements') must have paid heavier penalties than many whites convicted of serious crimes.

Most of the above discussion on judicial attitudes towards race has related to judgements of the superior courts, which have laid down the law and set standards of procedure and decorum for all courts. It should not be forgotten, however, that the great majority of cases have been heard in the magistrates' courts, and that members of the public were far more likely to appear before magistrates than before judges. There has been no system of reporting judgements in the magistrates' courts, so that the attitudes of magistrates to race cannot be determined by reference to law reports, except where they have been quoted in cases on appeal. It has frequently been pointed out, however, that magistrates

were civil servants lacking the legal training and sense of independence of the judges, and as such more amenable to departmental pressures and less likely to fly in the face of white public opinion. Their court rolls were longer and their tempers often correspondingly short. One magistrate recommended in his memoirs that new judges should spend a year in the magistrates'courts, mucking in with the rough and tumble, getting the good old smells of a fetid atmosphere, seeing the riff-raff pass before him day after day in almost endless procession, and having to punish, punish, punish (Corder). On questions of race this particular magistrate was relatively liberal, and asked in his memoirs what justice there could be, what respect for the sanctity of human life, when a white man could merely be fined £10 for striking an African dead with his fist. Another magistrate who succeeded in finding a publisher for two sets of memoirs adopted a quite different approach to race relations, and offered his readers the following advice: "There is but one way to treat a South African aboriginal-perform your promise whether it be a tip or a thrashing, and avoid familiarity at all costs" (Devitt). Examples could be quoted to show similar variations of attitudes amongst magistrates in cases where Africans have taken action to remedy grievances. Whereas one magistrate went out of his way to emphasise that all persons had the right to take action to improve their conditions, provided they did not break the law, another magistrate was at pains to castigate African bucket-workers who had gone on strike to get their monthly pay raised from £3 to £4. This latter man was the Chief Magistrate of Johannesburg, who was later to head a committee for the defence of white strikers, and he told the African workers that they would have to serve two months hard labour doing the same work as before, without pay and under armed guard; if they tried to escape, they would be shot, and if they refused to work they would be flogged. The race consciousness of magistrates is likely to increase rather than diminish, if the attitudes of the head of the training section of the Department of Justice are any guide (Ferreira). In a standard textbook on criminal procedure in the magistrates' courts, he lists eighteen characteristics of African witnesses for the benefit of those, who unlike the author, 'do not know the Bantu'. He also suggests that magistrates should impose heavy sentences in political trials, and refrain from criticising the police or legislation.

In concluding this chapter, it is fitting to quote the remarks of ex-Chief Justice Centlivres who after his retirement from the Bench became a vigorous critic of statutes which he felt offended against the

Rule of Law. In a discussion of the motto 'Equal Justice under the Law' which appears on the pediment of the United States Supreme Court, he wrote that such words would be out of place on the pediment of the South African Appeal Court, for the simple reason that the courts in South Africa were bound by law to apply or enforce legislation under which the rights of individuals differed according to the colour of their skins. Apart from discriminatory legislation which was binding on the courts, he felt that it could be said that South African courts were colour-blind, with the possible exception of some punishments. "It is discriminatory legislation which prevents our Courts from dispensing equal justice under law; if that legislation were to be repealed our Courts would dispense equal justice . . . for our common law is colour-blind."

Whether or not black South Africans were as ready to absolve the courts from responsibility for race differentiation will be discussed in a later chapter. Before dealing with that question, however, it will be convenient to consider, by means of reference to statutes and judicial statistics, the extent to which the courts, as the centre of penal apparatus in South Africa, have been involved in the maintenance of colonialtype relationships between white and black in South Africa.

Chapter Six—
The Administration of Justice in a Racially Stratified Society

Rapid industrialisation and modernisation of South Africa in the twentieth century accelerated the integration of all sectors of the population into a common society. In a few decades great cities sprang up on what had formerly been stretches of open veld, and quiet colonial towns on the coast burgeoned into busy ports and manufacturing centres. The demand of the urban areas for food and labour soon destroyed whatever economic autonomy the rural regions had once possessed, and an extensive system of internal communications brought all the inhabitants of the sub-continent into contact with each other. Millions of black, brown and white farmers trekked by road and rail into the towns, whilst a reverse flow of manufactured goods proceeded into every nek and krantz of the countryside.

In this setting it was hoped by some and feared by others that increasing industrialisation and cultural assimilation would undermine colour consciousness and erase legal disabilities based on race. Some would have argued then, as many maintain today, that an industrial economy was essentially colour-blind, and that its labour requirements and marketing needs would inevitably subvert archaic racial attitudes. Liberal investors, politicians and lawyers anticipated that the growth of industry would promote the spread of skills and education throughout the population and pave the way for the extension of the franchise, the removal of the colour bar, the softening of law enforcement and the liberalisation of race feelings. The test of citizenship would be civilisation and not race. The British Parliamentary system as adapted to the Cape and then transferred to the North was seen to have implicit in it an intrinsically democratic character and inherent virtue, which, in the benign atmosphere created by industrial advance, would become increasingly attractive even to the most race-conscious members of the South African population. Finally, it was assumed that the existence of a court system modelled on British lines and staffed by a Judiciary imbued with a sense of independence and justice, would ensure to every individual irrespective of colour freedom under the law.

This chapter will examine the extent to which in the sixty years after Union all these expectations were contradicted.

In the constitutional sphere, the limited Parliamentary franchise of black and brown was progressively eliminated and in its place a variety of racial and tribally constituted bodies were created. At the same time, the entire surface area of the country was racially zoned, with the result that by 1970 approximately 85 per cent of the land was reserved to the whites, who made up less than 20 per cent of the total population. Legal machinery was created to enforce large-scale removals of black and brown; discriminatory notices proliferated until no public amenity was left unsegregated; penalties were attached to an ever-widening range of sexual contact between white and black or brown. An elaborate race register was created in order to ensure that every individual was allocated to a defined racial group and thereby made entitled to certain legal privileges and subject to specified legal disabilities. Controls over the movement, residence and labour of Africans were constantly extended, while exemptions from the operation of restrictive laws were continually removed. Job reservation was increasingly underpinned by statute, and such 'mixed' trade unions as emerged were compelled by law to divide along racial lines. Segregation in schools and universities was intensified. All the lawcourts save one were segregated, as were the prisons and police stations. What had formerly been regulated by geographical separation or social practice now became enforced by law, and the courts became more not less active in penalising breaches of differential statutes.

Thus in the sixty years after Union in 1910, the number of blacks charged under avowedly racial statutes rose elevenfold from 90,000 per annum to 1,000,000 per annum. In 1928 fewer than 50,000 Africans were charged under the pass laws, while forty years later nearly 700,000 were charged under these laws. The number of prosecutions for illegal occupation of land in the same period rose from 10,000 to more than 150,000.

Partly as a result of this growing enforcement of discriminatory legislation, the number of persons received into prison each year rose from less than 100,000 in 1911 to nearly half a million in 1967. A comparison with countries that had a similar penal, though different social, system, reveals that in the early 1960s more than twice as many Africans were received under sentence in the prisons of South Africa (total population 18 million) as persons of all races were received under sentence into the prisons of England and Wales, Tanganyika, Kenya and Ghana combined (total population 69 million). So great has been

the recent incarceration of Africans in South Africa that if the level at the end of the 1960s is maintained, more than one African man in two can expect to be jailed in the 1970s.

Racial factors have also played a part in the continuing and in some respects increasing severity of punishments handed down by the courts. Thus in the first forty years after Union a total of 100,000 offenders were sentenced to 900,000 strokes, while in the next twenty years 200,000 offenders were ordered to receive 1,200,000 strokes; although the average number of strokes per offender nearly halved, the total number of strokes actually inflicted each year more than doubled. Similarly, the number of persons executed rose from less than thirty per annum in the first decade after Union to nearly one hundred per annum in this last decade. The number of crimes carrying the death sentence increased from three to nine in the same period, and in the early 1960s South Africa was responsible for 47 per cent of all judicial executions reported to the United Nations for a five-year period.

The remainder of this chapter specifies the statutes and sets out the statistical data on which the above propositions are based. It may accordingly be of special interest to criminologists, academic lawyers, sociologists and social historians, but of less interest to the general reader, who may prefer merely to glance at Tables 2, 7, 8, 9, 12, 15 and 20 and to pick out the passages which quote the rationalisations advanced by those in authority for the increased use of imprisonment, whipping and the gallows.

The Franchise

At the time of Union in 1910 some 20,000 or 15 per cent of all Parliamentary voters in the Cape were black or brown. Although they had never managed to elect one of their number to the Cape Legislature they constituted a considerable force at election time, especially since the rest of the electorate was fairly evenly divided between Englishmen and Afrikaners. The South Africa Act, 1909, which established the Union of South Africa, entrenched their voting rights, but did not extend such rights to the North. A special section of the Act provided that none should be removed from the voters roll on account of race except by a law passed by a two-thirds majority of the House of Assembly and the Senate sitting together.

In 1930 the voting power of Africans and coloured persons in the Cape was effectively halved when the vote was extended to white women in South Africa.

In 1936 African voters were by the requisite two-thirds majority removed from the common voters roll and placed on a special roll which entitled them to elect three white persons to the House of Assembly and four to the Senate, which between them had a total of nearly two hundred members.

In 1956 coloured voters were placed on a separate voters roll which entitled them to elect three white persons to the House of Assembly. The necessary two-thirds majority was obtained after a long constitutional battle culminating in the reconstitution and enlargement of the Senate.

In 1959 African representation in Parliament was abolished altogether.

In 1968 coloured representation in Parliament was abolished altogether.

Thus the Parliament elected in 1970 contained no representation, either direct or indirect, of black or brown South Africans. Pursuant to the policy of apartheid or separate development, the 80 per cent of South Africans who were disfranchised were provided with various councils. Nine separate tribally-based authorities were established in the rural reserves with varying degrees of local autonomy to represent the African population of South Africa; a Coloured Representative Council was created to act as official spokesman for the coloured people; and an Indian Advisory Council was appointed to consult with the Government on matters affecting people of Indian descent.

Racial Legislation

At the time of Union differential pass, liquor and tax laws already existed throughout most of South Africa. One of the first enactments of the new Parliament was a law which regulated recruitment of African workers and made breach of service contracts by Africans a criminal offence. This was soon followed by a statute which prohibited Africans from acquiring an interest in land outside of the tribal areas; the eventual effect of this law as amended was to prohibit Africans from owning or leasing property in 87 per cent of South Africa's surface area.

In the 1920s Africans living in the urban areas were obliged by statute to live in locations subject to the control of white superintendents. The Governor-General was declared to be Supreme Chief of all Africans with power to rule by proclamation. A special court system staffed by white officials was established to hear civil disputes involving

African litigants and to try Africans under differential legislation. Taxation of Africans on a capitation basis was made uniform throughout the country, and the failure to produce tax receipts on demand was made a criminal offence. Sexual intercourse between black and white was made illegal throughout the country.

In the 1930s African voters in the Cape were removed from the common voters roll.

In the 1950s pass laws inherited from the pro-Union period were consolidated and extended to African women; exemptions from the operation of these laws were cancelled and Africans in the Cape were subjected to the same controls as Africans in the rest of the country. The education of Africans was taken away from the missions and placed under total Government control. The authorities were given extra powers to evict Africans from land and to compel them to live in designated areas. Africans were prevented from belonging to registered trade unions, and strikes by Africans were made unlawful.

In the 1060s Government officials were given extra powers to control the residence and employment of Africans. The African National Congress and the Pan African Congress were declared unlawful organisations.

During these decades Africans were also adversely affected by a number of laws which discriminated generally between white-skinned and dark-skinned persons. These will be mentioned below. The only disabilities to be repealed during all this time were those relating to possession of liquor. The Government contends that the creation of tribal authorities in the 1960s opened the way to the exercise of full citizenship rights by Africans in their separate tribal homelands.

General colour bar laws were passed from time to time to enforce segregation between whites on the one hand and Africans, coloured persons and Indians on the other. In the early years after Union these statutes referred mainly to employment; in the 1950s statutory authority was given for the reservation of public amenities on a separate and unequal basis; a national race register was compiled in terms of a race classification law; intermarriage and any form of sexual activity between white persons and black or brown persons was prohibited; black and brown students were excluded from the Universities of Cape Town and the Witwatersrand; all urban and rural areas were racially zoned for purposes of ownership or occupation; the reservation of jobs on racial lines was extended, and 'mixed' trade unions were split on

racial lines. In the 1950s and 1960s major African political organisations were proscribed, the non-racial Communist Party and Liberal Party were forced to disband or go underground, and the multiracial Progressive Party was compelled to shed its black and brown members.

Thus by 1970 legal segregation was more extensive and systematic than it had been in 1910. Instead of the Cape policies being extended to the rest of the country, the rigid segregation of the North was extended to the Cape. African women throughout the country were made subject to the same controls as their menfolk, and the class of Africans exempted from the pass laws-only partially exempted, since in practice they had to carry documents-was abolished. At the same time the legal disabilities of coloured people and Indians were considerably increased. Segregation notices appeared on buses, trains, taxis and ambulances, on park benches, beaches, sportsfields and swimming baths, in libraries, concert halls, museums and zoos, in post offices, telephone kiosks, railway stations and urinals. Interracial conception was forbidden, interracial marriage was prohibited, the sick were treated in separate hospitals and the dead were interred in separate burial grounds.

The old policy of segregation, which operated unevenly and without plan, gave way to the new concept of apartheid, which was enforced in a total and systematic fashion. There was no essential break between the old and the new, in fact it was this very continuity which was novel, since everywhere else in the world legal differentiation according to race was being formally repudiated. Apartheid was the modernised form of segregation, justified by Scripture, adapted to industrialisation, and implemented by the formidable machinery of a contemporary state.

Law Enforcement and Race

The differential laws referred to in the previous section were not self-enforcing. It is not surprising, therefore, that an increase in what will be referred to as race-statutes was associated with an increase in the extent to which the courts were involved in the maintenance of segregation. This section will examine in some detail the way in which the penal scene was affected by race, and, conversely, the manner in which the Judiciary assisted in regulating race relations. In order to introduce this section, a synoptic view of some of the major areas of penal development in the years since Union is given in Table 2.

The figures given in Table 2 will now be considered separately, in detail and with reference to appropriate sources.

i—
Total Prosecutions

In the years from 1910 to 1967 the total South African population increased slightly more than threefold, the authorised establishment of the South African Police increased approximately fourfold, and the number of persons charged in court increased approximately eightfold. Table 3 gives a summary of the number of police and number of prosecutions in relation to the total population for nine selected years starting with 1912 and ending with 1967.

It will be seen from Table 3 that the total number of prosecutions has risen dramatically though not regularly in the years since Union. The only two years in which a drop was recorded were 1942 and 1962; in 1942 a depleted police force was extensively engaged in security operations against pro-German Afrikaners, while in 1962 an increase in

security work against rebellious Africans coincided with the cessation of large-scale liquor raids.

ii—
Prosecutions in Terms of Race-Statutes

The early Annual Reports of the Commissioner of Police were far more voluminous and revealing than the modern ones, but unfortunately not always complete. Thus the report for the year 1911 gave a great amount of uncollated information in relation to prosecutions brought in the Transvaal, the Orange Free State and Natal, but far less complete figures for the Cape (UG 62/1912). A collation of the information provided in relation to prosecutions or arrests for particular crimes presents the following Provincial picture:

In the Transvaal 120,000 persons were sent for trial, of whom 56, 000 were charged with race-statute offences, 16,000 with contravention of

[1] Based on Annual Report of Commissioner of Police, for year ended 30th June 1968, RP 47/1969. The figures for 1967 relate to the year ended 30th June 1967, and those given in the last two columns for that year were calculated by the writer on the basis of information in the Report for the year ended 30th June 1967, RP 40/1968. Figures for the total population are to the nearest 5, 000 and for the number of persons prosecuted to the nearest 1,000.

municipal regulations, 11,000 with drunkenness, 9,000 with offences against property, and 6,000 with offences against the person.

In the Orange Free State 21,000 persons were prosecuted, of whom 5,000 were charged with race-statute offences and 2,000 with theft.

In Natal 50,000 persons were prosecuted, of whom 16,000 were Africans charged with race-statute offences, and 4,000 were Indians charged with similar offences.

In the Cape , the Urban Police made 9,000 arrests, of which 500 were made under vagrancy laws and only I under an avowedly racial statute. The Mounted Police made 8,000 arrests, of which 1,000 were under the masters and servants laws, 500 for trespass, 500 under the liquor laws and 200 for pass offences. The Kimberley Police made 4,000 arrests, of which 200 were for pass offences and 100 for liquor offences. Thus these three separate Cape police forces were between them responsible for 21,000 arrests, of which 3,000 were for infringements of what may broadly be referred to as race-statutes. A fourth force, the Rural Police, was responsible for bringing a further 35,500 accused persons before the courts. How many of these persons were charged with more than one offence is not revealed, nor what the offences were with which they were charged. On the assumption that the Rural Police were responsible for the same proportion of prosecutions in terms of racestatutes as were other police forces in the Cape (i.e. one in seven) it may be estimated that in the Cape at least 56,000 cases were brought to court, of which at least 8,000 were based on race-statutes.

The above figures are expressed in tabular form (Table 4) together with an indication of the proportion that race-statute prosecutions formed of the total number of prosecutions in each province.

The figures in Table 4 indicate that the Transvaal led the field both in terms of the total number of prosecutions brought and in terms of charges laid under race-statutes. Not too much reliance may be placed on the Cape figures, since they are only estimates,^[2] but the low figures for the largely rural Orange Free State contrast strongly with the high figures for the industrialised Transvaal. When the whole of South Africa became more industrialised, the pattern of prosecutions throughout

[2] The Cape figures were probably higher than those shown. The report for 1916 showed that the number of persons arrested in that year were: Cape 82,000; Natal 54,500; O.F.S. 23,000 and Transvaal 120,000. UG 42/1917. Although the reports for the years after 1911 gave reliable totals, they did not break down the information so as to permit a picture of the different kinds of prosecution being obtained.

the country came increasingly to resemble that of the Transvaal in 1911.

From the 1920s onward the police reports presented their information in a terse but continuous manner. Data were no longer supplied

[3] Based on Annual Reports for 1927, 1947 and the Year Ended 30th June 1967. From 1963 onwards the reports covered the period from mid-year to mid-year. Total figures were no longer given for statutory offences regarded as less serious, but information was supplied as to the main offences prosecuted and what percentage of all prosecutions these represented, and from this it is possible to calculate the total number of prosecutions for all offences. The last two columns in Table 5 were compiled by the writer on the basis of data in the above mentioned reports. The figures given in subsequent tables for years after 1963 refer to the 12-month period ended 30th June of the year mentioned.

on a Provincial basis, but figures were given of the main kinds of prosecution brought throughout the country, and it became possible to calculate the total number of charges for each year. On the basis of these figures the writer has calculated the growth rate for all prosecutions and for race-statute prosecutions from 1927 to 1967, as represented in Table 5.

The figures in Table 5 establish that the total number of prosecutions increased at a markedly greater rate than did the total population, and that the number of race-statute prosecutions increased at an even faster rate. Roughly speaking, during a period of forty years when the total population increased by about 2 1/2 times, the total number of prosecutions increased by about 4 1/2 times and the total number of specifically race-statute prosecutions increased by about 5 1/2 times. In proportional terms, the percentage of race-statute prosecutions rose from 33 per cent of the total in 1911 to 44 per cent in 1967.

The term race-statutes has been used here to refer to five main groups of laws, namely those relating to taxes, passes, liquor, masters and servants and trespass. The tax laws penalised failure by African men to produce on demand annual receipts for poll tax. The pass laws referred to documents of identity and permits relating to work and residence, all of which had to be produced on demand, as well as to curfew laws and location regulations, the latter including such crimes as failure to pay rent. The liquor laws rendered it a criminal offence for Africans to brew or possess so-called kaffir beer or so-called European liquor. The masters and servants laws applied almost invariably to white masters and black or brown servants, and related mainly to indentured farm-workers. The trespass laws were used almost exclusively to prosecute Africans found without permission on land or premises owned by whites. Although the total figures for prosecutions under race-statutes increased rapidly over the years, the figures for each of these five main categories varied considerably. The changes in respect of each of these five groups from 1928 to 1968 are reflected in Table 6.

Table 6 demonstrates that a vast increase in the number of prosecutions for tax, pass and trespass offences was associated with a marked drop in the number of prosecutions for liquor and masters and servants offences.

A special word should be said about the decline in prosecutions under the liquor laws. These had originally been prompted as temperance measures, but they also helped perpetuate the concept of Africans as a subordinate people requiring special controls. Whereas the drop in the

number of prosecutions brought under the old and cumbersome masters and servants laws was gradual and steady, the decline in prosecutions under the liquor laws in fact only took place after there had first been a steep rise not reflected in Table 6. Liquor law prosecutions rose from 33,000 in 1928 to over 200,000 in the late 1950s, but plummeted when the liquor laws were amended in 1961 to permit Africans to buy liquor in bottle stores. Thus prosecutions under the liquor laws rose from 7 per cent of all prosecutions in 1927 to 11per cent in 1948 and dropped to 2 per cent in 1967. For decades the prohibition of liquor for Africans had been regarded as fundamental to the maintenance of social peace and the combating of crime in South Africa, yet the eventual abandonment of such prohibition brought about no noticeable change in either the social picture or the crime situation in the country. The police had long felt uneasy about the administration of the liquor laws, partly because of the corruption they had engendered in the police force itself. Thus, the Police Commission of Enquiry of 1937 commented that although the prohibition laws did much "to save the natives from the disaster which unrestricted liquor supply would inevitably have brought about, and preserved other races from appalling resultant dangers . . . thousands of Europeans, natives and coloured persons were degraded and ruined in the process of putting the law into force" (UG 50/1937). A strong wine farmers lobby had also long urged the ending of prohibition, but it was only after the shootings at Sharpeville in 1960 that the law was actually changed.

The drop in prosecutions for liquor and master and servant offences was small in comparison with the increase in prosecutions under the other race-statutes. Thus prosecutions for tax offences rose 4 times in the forty years, for pass law offences 15 times and for trespass 16 times.

Prosecutions under the pass laws in fact rose so steeply that they increased in average from less than 1,000 per week to more than 2,000 per day. Thus statutory controls over the African people were intensified rather than weakened with the growing economic progress of the country. The archaic masters and servants laws which had served a predominantly rural economy were superseded by modernised pass laws designed for an industrialised society, and the liquor laws which were irrelevant to the economy or the administration were jettisoned.

It has already been mentioned that by 1967 prosecutions for racestatute offences amounted to approximately 44 per cent of all prosecutions brought. For purposes of comparison the figures given in the annual report for the other main offences prosecuted in that year, namely traffic offences, drunkenness and drugs, assaults and common theft, are given in Table 7.

Table 7 demonstrates that prosecutions for race-statute offences substantially exceeded the combined figures for motor vehicle offences, drunkenness and drugs, assaults and common theft. The pass laws alone accounted for approximately five times as many prosecutions as assault, and nearly ten times as many as common theft, the two most significant common law offences.

By way of comparison, approximately 2 million persons were prosecuted in 1969 for all offences in England and Wales, which have a population about 2 1/2 times that of South Africa. One million of these prosecutions related to motoring offences, 200,000 to common theft,

85,000 to drunkenness, 65,000 to assaults, and 60,000 to violent theft. Thus more persons were prosecuted in South Africa for race-statute offences than all persons were prosecuted for non-motoring offences in England and Wales (Criminal Statistics ).

iii—
Race Laws and Sex

The increase in race-statute prosecutions has been brought about through the more rigid enforcement of old statutes rather than through the creation of new offences. Penal sanctions were invariably attached to new segregation measures, but they were invoked relatively rarely. Thus prosecution under the Group Areas Act, 1950, and for breach of segregation rules relating to public amenities are not frequent. Nevertheless, the social significance of the new race-statutes was considerable, and the ultimate threat of penal sanctions ensured general compliance with them.

One field of increasing intervention by the law was in sexual relationships between persons of different colour. In general, pre-Union statutes prohibited sexual intercourse between white women and black men, the severest penalty being in Natal where 25 years' imprisonment could be imposed (Simons-African Women ). Prosecutions appear to have been rare, and in the first years after Union official attention was focused on unwilling interracial intercourse rather than on intercourse by consent. Thus the police report for 1911 gave figures for sexual assaults committed by black or brown men on white women (Natal 52, Transvaal 40, Cape 27 and Orange Free State 3), to which the term Black Peril was applied. The Commissioner for Police observed that the Black Peril should be most prevalent where Africans were the most numerous, and yet in fact in the populous Cape Province, "where the coloured men and the native who is a registered voter is in most respects on terms of equality with the white man (andwhere) consequently far more cases of the kind under discussion might be expected", the prevalence was the lowest. His conclusion was that Black Peril outrages were due mainly to the existence of the houseboy and the illicit liquor traffic (UG 62/1912).

Five years later a Deputy-Commissioner recommended that a Union statute be passed forbidding the sale of pictures of nude statues or paintings, "it being felt that the exposure of pictures representing nude white women incites coloured men and natives to sexual offences" (UG 42/1917). The Immorality Act of 1927, however, placed no prohibition upon pictorial nudity, but did penalise sexual intercourse

between 'Europeans' and 'natives' of the opposite sex. The Immorality Act of 1950 extended the prohibition to sexual intercourse between 'Europeans' and 'non-Europeans', and the Immorality Act of 1957 further forbade sexual activity falling short of intercourse, and at the

same time increased the penalties to a maximum of seven years' imprisonment.

The number of convictions during selected years from 1928 to 1966 for breaches of the colour bar provisions of the Immorality Acts is given in Table 8.

These totals are small in comparison with those for prosecutions in terms of other race-statutes, and standing on their own fail to convey the importance attached to the sexual colour bar in South African life. Whereas prosecutions under the pass, tax and trespass laws usually pass unnoticed save by those directly affected, Immorality Act trials are highly publicised. The more prominent the white person involved and the more salacious the evidence, the wider the press coverage. A secretary to the Prime Minister, a Minister of the Dutch Reformed Church, lawyers, businessmen, academics, policemen and farmers have all been hauled before court for loving their black neighbours too well, and almost every year the newspapers carry reports of whites who have committed suicide rather than face the ignominy of such a charge.

It is generally agreed that only a small amount of interracial sexual activity is detected by the police, yet the existence of the Act and the bringing of exemplary prosecutions helps to promote the concept that the maintenance of racial purity is the ultimate end of government. A sociologist has observed that when, as in South Africa, status is closely linked to racial type, any assimilation that blurs the obvious physical differences is seen as a threat to the social order. "The dominant group will apply strong pressure to prevent coition between its members and the underlying population." White tribalism, he adds, contributes its quota to the list of sexual taboos (Simons).

Yet if the preservation of white purity is seen as the primary objective of the Immorality Act, in practice it is white men who seek sexual intercourse with black and brown women rather than black and brown men who attempt intimacy with white women. Figures in Police Reports for prosecutions under the Immorality laws reveal that very few white women have been involved; thus in 1928 a total of 78 white men and African women were convicted, as compared with a total of only 11 white women and African men, while in 1966 out of 488 persons convicted only 4 were white women and 13 black or brown men.

iv—
Race Laws and Residence

One of the immediate consequences of industrialisation in South Africa was the creation of large multiracial urban centres. As industry expanded and the population of the cities increased, so did the Legislature increase its measures to segregate residential areas according to racial criteria. Far from declining with the onset of modernisation, racial zoning became more extensive and grew to involve ever greater sections of the population. In the past two decades the machinery of the

law has been invoked to compel the removal of hundreds of thousands of persons from one area to another on racial grounds. The removal of Africans was accomplished by a combination of many statutes, some old and some new, and it is difficult to compile accurate figures for the total numbers of persons involved. One estimate put the figure of enforced removals of Africans during the decade 1960 to 1970 at 900,000. The enforced removal of Indians and coloured persons, however, was accomplished almost solely by one statute, the Group Areas Act, 1950, the operation of which has been more precisely documented.

The basic aim of the Group Areas Act was to divide the country into separate racial areas for ownership and occupation. In practice the Act was used mainly to force Indians and coloured persons living in areas close to the centre of towns and villages to remove to the outskirts; while being ideologically satisfying to the white electorate, these removals also proved to be economically advantageous to the Government and to serve its security ends. The differential manner in which the law was implemented appears from Table 9.

Table 9 reveals that for each white householder obliged by law to make way for brown people, almost one hundred brown householders have been compelled to make way for white people. On the assumption that each family consisted of five members, only 1 in 570 whites in South Africa would have received orders to move, compared with approximately 1 in 6 coloured persons, nearly I in 3 Indians and more than 1 in 2 Chinese.

v—
Increase in Prison Population

The size of the prison population in any society is an important index of the extent to which the courts are used as instruments of social control. A growing prison population indicates either an increase in conduct defined as criminal, or an improvement in law enforcement machinery, or the emergence of a sterner judicial attitude towards punishment. In South Africa all three factors appear to have operated in the years since Union to increase the size of the country's prison population. The growth in the total number of admissions each year is given in Table 10, which refers to selected years from 1912 to 1969.

Two comments should be made about the figures in Table 10. First, the growth in total admissions and admissions under sentence greatly exceeded the growth in total population, the ratio being approximately 5:3. Second, the growth in unsentenced prisoners who were subsequently not returned to prison was even greater. Thus in the late 1060s the already vast prison population was added to by more than 150,000 persons each year who were either refused or unable to raise bail, and

[4] Total populations from Police Reports; admissions to prison from Reports issued in respect of each year by the Director of Prisons; percentage calculations by the writer. From 1963 onwards the reports by the Director of Prisons related to the year ended 30th June. No allowance is made in any of the figures relating to admissions for the fact that one person might have been admitted more than once in one year in respect of separate convictions.

who were subsequently acquitted or sentenced to a non-custodial order (Prisons Reports).

A major defect in the published South African judicial statistics is that they do not relate prosecutions to imprisonment. The outcome of prosecutions is not given, nor is the cause of imprisonment. Prisoners are classified in the Annual Reports of the Director of Prisons according to race, sex and length of sentence, but not according to the offence they have committed. Figures are not even provided of the number of persons received into prison because of inability to pay fines; when the Penal Reform Commission conducted a special investigation into the question over an eighteen-month period in the early 1940s, it was shocked to find that out of more than 100,000 prisoners at eleven major urban centres, no less than 82 per cent of African prisoners, 87 per cent of coloured and Indian prisoners and 64 per cent of white prisoners were admitted because of non-payment of fines (UG 47/1947 p. 171).

A very large proportion of persons admitted to prison each year go there to serve sentences of only a few weeks or a few months. Table 11 gives a breakdown of admissions for the year ended 30th June 1069, according to race, sex and length of sentence.

According to Table 11, out of slightly less than 500,000 persons received as convicts into prison during the year, as many as 460,000 were sentenced to six months or less. Furthermore, nearly half the prisoners sentenced to less than six months were first offenders.

As long ago as 1939 the then Director of Prisons stated in his annual report that short term sentences were seldom effective, and that they had been found to be neither reformative nor deterrent. The Penal Reform Commission of 1947 made similar observations, and in 1953 the annual prisons report emphasised the uselessness of short-term imprisonment from the point of view of training of prisoners. In recent years a Cape judge has spoken out strongly in favour of reviewing penal policy in South Africa and especially of reducing the number of petty offenders being sent to prison (Jan Steyn). Despite these authoritative opinions, the annual intake of short-term prisoners shows no sign of diminishing, and in a recent interview the Minister of Justice and Prisons declared that short-term imprisonment was 'here to stay'. In his opinion there was no alternative, because "after all, the courts cannot allow people to commit offences with impunity. Once a man is convicted of a minor offence he is given the choice of either a fine or imprisonment. If he is unable to pay the fine he must go to jail" (P. C. Pelser, Rand Daily Mai ,, 30/6/1965).

In this connection a comparison with penal development in England provides a significant contrast. Table 12 compares the trend in relation to short-term imprisonment in England and Wales on the one hand, and South Africa on the other: the selected years are 1913, 1938 and 1968.

Table 12 shows that during the period 1913 to 1968 the number of short-term prisoners declined by approximately 95 per cent in England and Wales and increased by nearly 400 per cent in South Africa. It was this reduction in England and Wales that was mainly responsible for the drop there in annual admissions from 138,000 in 1913 to 36,000 in 1068.^[5]

What happens to the hundreds of thousands of persons admitted to prison for short terms in South Africa each year? Their entry into and exit from prison is achieved with such rapidity that although their total numbers are great, on any particular date they account for a relatively small proportion of persons in custody, as appears from Table 13.

The last column in Table 13 shows that out of 89,000 persons in custody on a particular date, 14,000 were awairing-trial prisoners, 55,000 were serving sentence of over 6 months, and only 20,000 were serving sentences of 6 months and under.

The Prisons Department has in fact evolved two major techniques for

[5] The problem of the short sentence has not been confined to South Africa. In the late 1950s in Australia and New Zealand an even greater proportion of prisoners seemed to have been short term (Rhoodie).

dealing with the large numbers of short-term convicts sent to prison each year. The first is to hire out such prisoners to farmers at nominal charge and the second is to release prisoners on parole subject to their working on farms and gardens at local wage rates (Prisons Reports for 1943 and 1952; UG 47/1947).

The hiring-out system was started in 1932 when the charge to farmers was 6d. per convict per day; various abuses were exposed, and the system was modified, the charge to farmers being raised to 9d. a day. In 1952 more than 40,000 prisoners serving sentences of less than four months imprisonment were hired out to farmers under this scheme, which the Department extolled for relieving pressure on the prisons "meeting in large measure the pressing need for farm labour, and providing the prisoner with a healthy out-door occupation". In the early 1950s the Prisons Department invited farmers' associations in various parts of the country to construct farm jails to which medium-term prisoners might be sent, and by 1956 the movement of prisoners from the cities to the countryside had become so extensive that the Director of Prisons was able to report that 37 per cent of all prisoners worked extramurally-mainly for farmers, in the highly productive areas where free labour was in short supply. The remaining 63 per cent were employed on State use, the hiring out of convicts to mining companies having been finally ended in 1955 (Reports for 1933, 1955, 1956).

The release of short-term prisoners on parole proved to be another boon to persons owning land in the neighbourhood of prisons, since the usual condition of parole was that the prisoner remain in the employ of a particular landowner for the unexpired portion of his sentence. Thus in the year ended 30th June 1960 more than 100,000 short-term prisoners were released on parole or probation. It should be mentioned that in practice white prisoners are not amongst those sent to perform menial tasks on privately owned farms or gardens. Segregation runs right through the prison system in South Africa, and results in black and white prisoners receiving different amenities and rations in physically separate institutions. A leading penologist explained, presumably without intentional irony, that "placing the Bantu offender in a correctional institution for people of his own group and race not only recognises existing ethnological differences but is in accordance with the national policy of differential development" (Rhoodie).

The incidence of imprisonment is not the same for all race groups in South Africa. If the figures relating to race in Tables 11 and 13, which deal respectively with annual admissions under sentence and persons

in custody on a particular date, are compared with the total population of each race group in South Africa, it becomes clear that there are a disproportionately low number of white and Asian prisoners (see Table 14).

Amongst the many criminological questions which remain unexplored in South Africa is the problem of why so many coloured persons and so few Asians find their way to prison each year. Both groups are affected by poverty, overcrowding and race discrimination; a possibly relevant factor is the extent to which strong family and community bonds amongst the Indians help to cushion the effect of adverse social and political conditions.

The high proportion of Africans in prison is interpreted by some as evidence of Government repression and by others as proof of popular lawlessness. Prosecutions brought under race-statutes are undoubtedly responsible for a large number of Africans going to prison, but common law offences also make their contribution. Thus in the early 1960s more than 70,000 Africans were convicted per annum for offences against property and approximately the same number for offences against the person (Penal Statistics, 1949–1962). Nearly a thousand murders are committed in Johannesburg each year compared with about 60 in London and about 200 in the whole of the United Kingdom.

[6] The total size of each race group was based on population estimates by Bureau of Statistics for mid-1967, quoted in SAIRR 1967 p. 19. The percentage calculations are by the writer, rounded off to the nearest 0.5 per cent, except for the figures for Asian prisoners which are to the nearest 0.1 per cent.

There are indications that many African employees regard pilfering as a legitimate means of supplementing low earnings, and the courts constantly reiterate their determination to suppress such 'betrayals of trust' with severe sentences. Thus theft from an employer, even of the most inexpensive article, is almost invariably punished with a sentence of several months imprisonment; first offenders are not exempt, and not long ago two Transvaal judges confirmed on review sentences of six months imprisonment passed on Africans who had respectively stolen a packet of matches and a toilet roll at their places of work (1964 SALJ, 113).

Hardly any sociological analysis has been attempted to explain the extent of common law crime amongst Africans. To adherents of racial theory it is self-evident that Africans have an ethnic propensity towards violence and plunder, and criminal statistics are seen merely as confirming what every white man is considered to know from common experience. In the view of such theorists, the only realistic approach towards crime in South Africa is to have strong laws, a strong police force, a strong Judiciary and escape-proof jails. A common variant of this attitude is that Africans in their tribal or 'natural' state are basically law-abiding, but that they are unable to resist the temptations of city life and collapse into lawlessness once they enter the white man's world. Thus a Deputy-Commissioner for Police declared in 1917:

When one remembers the overwhelming majority of natives in the Division compared with Europeans, and their extensive facilities for wrongdoing, it must be confessed that the native is a wonderfully law-abiding subject. The native attitude towards the white is almost one of profound indifference, closely bordering on insolence, but usually it is only in the towns that over-civilisation jeopardises and impairs the native's uniform good conduct and obedience to the law.

A Commissioner of Police agreed that 'raw natives' were being debauched by the city environment, and pointed the moral that the answer lay in more compounds and closer controls (UG 42/1917; UG 62/1912).

Critics of racial theory, on the other hand, attribute lawbreaking to the very controls that are supposed to counteract it.^[7] They point to the

[7] The Penal Reform Commission of 1947 adopted a rather eclectic approach in which all viewpoints were manifest. Cf. UG 47/1947, section on Race and Crime, pp. 3 et seq., and references to 'barbarism', p. 64. An Inter-Departmental Committee Report published in 1942 placed strong emphasis on poverty and broken homes as a causative factor in relation to crime amongst Africans.

disruption of communities and the breaking up of families by the law, and to the blatant inequalities of wealth and opportunity that attach to race in South Africa, and argue that what appears to the racist to be an inherited deficiency in the personalities of blacks is in fact a reaction to deficiencies in society. They agree that traditional African societies in southern Africa were generally fairly free of crime (whether defined in traditional or modern terms), but state that the only realistic solution to contemporary law-breaking is to allow Africans full rights and participation in a common society rather than to try to restore a past that vanished irretrievably with the destruction of the tribal armies and the dispossession of the tribal lands.

In view of the ever-increasing flow of Africans into prison it is perhaps ironical that for many years the authorities regarded the very idea of imprisonment of Africans with uncertainty. Some Cape judges were said to pass moderate sentences on Africans because "natives pine so much in captivity". More recently a prominent South African judge stated that solitary confinement bore particularly harshly on Africans because they did not have much to contemplate (Van den Heever). Other jurists, however, felt that "to natives of the class who fill our jails, to be well fed and clothed is a mild form of punishment of which they can bear a considerable amount". One writer went so far as to say that Africans positively enjoyed going to prison; entirely misconstruing this institution of Western civilisation, they proudly wore their clothing embroidered with the Queen's coat of arms, and felt themselves to be lodged in a splendid building which would give them status in the eyes of their peers (Seymour). More recently a Director of Prisons wrote that unsophisticated Africans had alarming anticipations of prison, but found their fears dissipated by reality, so that imprisonment lost its deterrent value. In his view, the answer was to keep petty offenders out of prison if at all possible, and to subject them instead to corporal punishment. "The brutalising effect of strokes at any rate on natives has been grossly exaggerated, and there is no doubt that whipping is far less harmful than a term of imprisonment, which may completely demoralise the person and give him a trend towards a criminal career" (UG 38/1932).^[8]

[8] None of the five above mentioned statements was made by Africans or purported to be based on what African prisoners themselves had stated to be the impact of imprisonment upon them. Cf. The East African Experience of Imprisonment by R. E. S. Tanner, in (ed.) Milner, based on a survey conducted amongst prisoners, especially at pp. 295 and 314.

"Whether or not imprisonment deters Africans from criminal careers or predisposes them towards such careers, the scale of incarceration of Africans has become very large by international standards. Table 15 provides a comparison between the annual admission rates in the early 1960s of prisoners in South Africa, England and Wales, Tanganyika, Kenya and Ghana. It should be remembered that more than three-quarters of the South African prisoners were African.

According to the figures in Table 15, in absolute terms nearly six times as many South African convicts went to prison as convicts in England and Wales, while in relation to the total population of the country, the proportion was nearly fifteen times as many. The absolute figure for South Africa was also three times that of the combined total for Tanganyika, Kenya and Ghana, while the relative figure was four and a half times as great.

By the end of the 1960s the disparity between the South African and the English and Welsh totals had become even greater, as appears from Table 16.

[9] South Africa-prisons reports for year ended 30th June 1964; England and "Wales—People in Prison , Command 4214, HMSO, November 1969, p. 14 (figures for Borstals and detention centres are included); Tanganyika-J. Read in (ed.) Milner, p. 130 (the latest figure given is for 1962); Kenya-J. Read ibid , p. 129; Ghana-Robert E. Seidman and J. D. Abaka Eyison in (ed.) Milner at page 87 (footnote 72).

Table 16 establishes that by 1968 the absolute total of South Africans going to prison under sentence was ten times that of England and Wales, while the relative figure was approximately fifteen times.

Included in the 1968 South African figure of nearly half a million convicts admitted to prison were 416,000 Africans (350,000 men and 66,000 women; a further 4,000 infants at breast were admitted, and nearly 200 children were born in prison).

Thus by the end of the 1060s approximately 350,000 African men were being received into prison under sentence each year, and approximately 150,000 of these were first offenders (Prisons Reports). If this level of imprisonment is maintained in the 1970s, then according to the writer's calculations within the decade one African man in three will have served a sentence as a convict in South Africa,^[11] and if remand prisoners not subsequently admitted as convicts are included as well,

[10] South African figures from annual prison reports; English and Welsh figures from People in Prison ; a subsequent jump of nearly 10,000 in the next three years has caused considerable concern in England.

[11] Calculations based on (i) Total African population in 1969 of approximately 14 million, 7 million of whom were male; expected to increase by about one-third over the whole of the decade, (ii) More than 1,500,000 African men first offenders being imprisoned as convicts in the decade; and (iii) Fifty per cent of African males being under the age of 18 at any particular time (cf. Native Affairs Department report for 1963, RP 41/1965, p. 2).

probably one African man in two will have been in jail.^[12] If the 1960s rate of increase is maintained, then more than half the adult African male population will have served sentences as convicts, and well over half would have spent some time in prison.

It was mentioned earlier that the great majority of sentences served by Africans were for relatively short periods. Nevertheless the core of long-term prisoners has grown at a rapid rate, and is partly responsible for the increase in the average daily prison population in South Africa. Table 17 charts the increase from 1912 to 1969 in the average number of persons in custody each day.

[12] In the year ended 30th June 1969, only 97,000 out of 258,000 awaiting-trial prisoners were subsequently admitted to prison as sentenced prisoners. It is not known how many of the remaining 161,000 prisoners were African male first offenders, but the figure should not be less than thal for African male first offenders amongst sentenced prisoners, namely about 30 per cent. This would add more than half a million to the total for the decade, bringing it up to more than 2 million. Persons detained in police lock-ups and not subsequently sent to prison would not appear to be included in any of these figures.

The figures in Table 17 demonstrate that during the period 1912 to 1969 the daily average prison population increased at nearly twice the rate of the total population of South Africa. The increase in daily average prison population was also greater than the increase in total admissions, in the ratio of approximately 5: 4. This latter ratio suggests that there has been an increase in the average length of sentence served, due either to a reduction in paroles or remissions granted or to an increase in the length of sentences imposed. Since greater use seems to have been made of parole and remission in more recent years, the inference may be drawn that the courts are imposing steadily heavier sentences. It is not clear whether such heavier sentences are due to an upsurge in convictions for serious offences, or to a tendency on the part of the Judiciary to impose more severe sentences for the same kinds of offence, or to both. Reliable analysis on this score is frustrated by lack of particularity in the published statistics. One hypothesis which may be advanced as a contributory factor, however, is that just as the courts have tended to increase the level of fines in order to keep pace with monetary inflation, so they have tended to increase the lengths of prison sentences as though the value of these too depreciated over the years.

A breakdown by race and sex of the average daily prison populations for selected years from 1911 to 1968 highlights the extent to which African and coloured prisoners have increasingly contributed towards the total (see Table 18).

The figures in Table 18 establish that the increase from 1911 to 1968 was greatest for African and coloured women, and next greatest for African and coloured men. The increases for white men and women did not quite keep pace with the increase in total population, whereas the average daily total of Asian men and women prisoners actually decreased. (The totals for the years 1911 and 1913 were inflated by the civil disobedience campaigns led by M. K. Gandhi.) It is noteworthy, however, that in the period 1938 to 1968 increases were recorded for all racial groups. The upward trend in the prison population was considerably less marked in the three decades immediately following Union than it was in the next three decades, and whereas the average daily population of African and coloured prisoners increased by about 65 per cent in the 27 years from 1911 to 1938, it rose by more than 400 per cent in the 30 years from 1938 to 1968. The comparable figures in England and Wales for average daily prison populations (including Borstals and detention centres) were 18,200 in 1913, 11,086 in 1938 and 32,461 in 1968.

vi—
Executions

At the time of Union capital punishment was competent in respect of three crimes, namely, murder, rape and treason. In the case of murder it was an obligatory penalty, but for rape and treason its imposition lay within the discretion of the trial judge.

By 1967 capital punishment had become competent for nine crimes—namely: murder, rape, treason, aggravated housebreaking, armed robbery, kidnapping, and offences under the 'Sabotage' Act, the Suppression of Communism Act, and the Terrorism Act.^[14] The death

[13] Annual Prison Reports. The figures for 1911 have been rounded off to the nearest i. Until the 1960s separate figures were not kept for African and coloured prisoners. The figures for 1968 are for the year ended 30th June 1968.

[14] Criminal Procedure Amendment Act, 1958, sec. 4 (robbery and housebreaking); General Law Amendment Act, 1962, sec. 21 (sabotage); General Law Amendment Act, 1963, adding a new offence and punishment to the Suppression of Communism Act, 1950; Criminal Procedure Amendment Act, 1965 (kidnapping and child stealing); The Terrorism Act, 1967.

sentence continued to be compulsory for murder, save that since 1935, if extenuating circumstances were found to be proved, the judge could impose a lesser penalty. As far as the other eight offences were concerned, capital punishment could be imposed at the discretion of the Judge.

The addition of the six new capital crimes took place in the decade 1958 to 1968, which was also a time of considerable increase in the number of persons executed in South Africa (see Table 19).

From the figures in Table 19 it can be seen that in the first decade after Union the average annual number of executions was 29, in the fourth decade it was 19 and in the sixth decade it was 95. Thus an

[15] Figures extracted from annual reports of the Commissioner of Prisons, which referred to calendar years until 1956, when they referred to the 12-month period ending 30th June of the year mentioned. In the past decade about 90 per cent of executions were for murder: thus in the year ended 30th June 1965, there were 100 executions for murder, 3 for rape, 5 for robbery, 1 for sabotage and 3 for murder and sabotage and 1 for murder and rape. RP 13/1966 p. 5. In the previous year 6 of the executions were for sabotage and 2 for housebreaking.

initial diminution consistent with a trend in many countries towards abolition was followed by a sudden rise inconsistent with such trend. The result has been that after being indistinguishable from dozens of other countries sixty years ago, South Africa now has the distinction of occupying first place in a United Nations survey on the rate of capital punishment throughout the world. Table 20 records the number of death sentences imposed and the number of executions actually carried out during the five-year period 1956–1960 in 32 respondent countries that still retained capital punishment.

A feature of the list is that eleven of the twelve respondent countries with the highest rates of execution were former British colonies, whilst the legal system of the twelfth (the United Arab Republic) had been considerably influenced by British administrators. It should be remembered, however, that a number of countries where capital punishment has not been abolished did not respond to the survey, and that the figures refer only to judicially imposed executions.

During the following decade a number of countries in the list below either abolished capital punishment altogether, or else suspended its operation (e.g. New Zealand, the United Kingdom, Dahomey, France and the U.S.A.). In many other countries the rate of execution declined, either because fewer death sentences were imposed or because more reprieves were granted. Thus a second United Nations survey revealed that in the next five-year period (1961 to 1965) judicial executions in Nigeria declined from 291 to 191, in the U.S.A. from 219 to 132, in Japan from 126 to 48, in the United Kingdom from 28 to 12, in Canada from 16 to 4, in France from 11 to 6 and in Somalia from 8 to 3; in Taiwan they rose from 15 to 25, and in South Africa, according to the annual Prisons Reports, they rose from 392 to 508.

The total number of executions reported to the United Nations for the period 1961 to 1965 was 1,033. During the five-year period ended 30th June 1966 a total of 508 persons were executed in South Africa, representing nearly half the world's reported total for approximately the same period.

The discovery that the hangman in Pretoria was responsible for almost half of all the world's reported judicial executions, prompted discussion on capital punishment in South African legal journals and the press. Nearly all the academic writing was abolitionist in character, and many advocates as well as a few judges declared themselves against capital punishment. Yet when in 1969 a Member of Parliament introduced a motion to request the Government to consider the advisability

of appointing a commission to enquire into the desirability of abolition, she was unable to find a seconder, and the motion lapsed.

The main argument in favour of retention has been essentially a racial one. Thus the 1947 Penal Reform Commission commented that comparisons with abolitionist countries were unhelpful, since they did not have heterogeneous populations in which the bulk of 80 per cent of the population had not yet emerged from barbarism. In 1968 the head of the Department of Criminology at Pretoria University stated in a popular weekly newpaper that the abolition of the death sentence might be regarded by the non-whites as a sign of weakness and as a licence to sow death and destruction (Venter, Landstem 1/9/1968).

vii—
Corporal Punishment

The incidence of corporal punishment in South Africa dropped consistently for a number of decades and then rose sharply again before recently declining once more. In the first four decades after Union a total of approximately 115,000 offenders received approximately 910,000 strokes, while in the following two decades approximately 220,000 offenders received approximately 1,220,000 strokes.^[16] Thus the number of persons per decade receiving corporal punishment increased nearly fourfold, outstripping the increase in population, while the number of strokes inflicted per decade more than doubled. Table 21

[16] Rough calculations by the writer based on figures in the Annual reports of the director (now Comminisrioner) of Prisons.

indicates the number of offenders sentenced to corporal punishment and the number of strokes inflicted during selected years from 1911 to 1969.

Starting in 1911 with approximately 3,400 offenders receiving 34,000 strokes, the figures tended to drop until they reached their nadir in 1941, when 1,600 offenders received 10,000 strokes. Thereafter the figures crept up consistently until 1952, when Parliament laid down that corporal punishment should be a mandatory sentence for persons found guilty of certain specified offences. This led to a very rapid rise in the figures which reached a peak of 18,500 offenders sentenced to 94,000 strokes in 1958. The figures then stayed on a plateau before descending once more when judicial discretion was restored in 1965. By 1969 slightly more than 5,000 offenders received slightly less than 26,000 strokes.

The South African Penal Reform Commission reported in 1947 that corporal punishment as a method of dealing with crime had been abandoned by most of the civilised countries of the world, outstanding exceptions being the British Commonwealth and dependencies and parts of the United States of America. It added that the main argument for its retention in South Africa was that it was a deterrent "of special efficacy especially in a country largely populated by a people the bulk of whom have not yet emerged from an uncivilised state, and that no other penalty would be equally effective in respect of crimes of violence or those crimes which by reason of their diabolical or inhuman character gravely shock the sense of a law-abiding community". After considering the arguments for abolition, the Commission declared that while not losing sight of the ideal that a civilised community should rid itself of the obloquy of exercising a brutal means of penalty, a sensible realism should be adhered to, and corporal punishment should be retained in South Africa. It recommended that flogging be imposed only for sexual assaults, or assaults involving grievous bodily harm, aggravated cruelty to humans or animals, stock-theft or housebreaking. With regard to stock-theft, it said that the withdrawal of corporal punishment as a penalty might be gravely detrimental to the interests of stock-farmers, who were entitled to special protection. Similarly, housebreaking was on the increase and might call for special deterrent.

The notion of corporal punishment being a special deterrent was developed in Parliament in the 1950s when the law relating to criminal procedure was amended to make whipping an obligatory sentence for

specified crimes.^[17] Previously corporal punishment had been a competent penalty, either on its own or in addition to any other penalty, for most common law offences. Now the discretion of the courts was removed, and judges and magistrates were ordered to impose strokes on all persons found guilty of housebreaking, receiving stolen property, theft of motor cars or theft from motor cars, and the more serious crimes of violence. Defending the subsequent large-scale Hogging of youths, the Secretary of Justice said in an interview: "I frequently walked around with what we regarded as honourable scars after I had had a difference of opinion with authority, and I do not think I am any the worse for it. . . . Boys being what they are there will always be some who scream and some who will not. . . . Such hidings naturally left small wounds but the same happened to boys who were caned at school" (Jansen, Cape Argus , 25/6/1955).

The general increase in whippings was considerable, but there appeared to be little corresponding decrease in the specified offences. Eventually, after twelve years had elapsed and a million strokes had been imposed, the failure of mandatory flogging was officially acknowledged, and the discretion of the courts was restored (Act 96 of 1965).

While there have been sharp fluctuations in the number of persons subjected to whipping since 1911, the trend towards reducing the average number of strokes inflicted on each offender has been fairly consistent. This drop was noted with dismay by one Director of Prisons, who reported in 1935 that the effect of corporal punishment had been closely watched for some time, and the definite conclusion had been arrived at that the infliction of a lesser number of strokes than six in the case of whites and eight in the case of blacks was not an effective punishment. The Penal Reform Commission, on the other hand, observed that after the eighth stroke the cane fell upon numbed flesh and was ineffective. In practice the average number of strokes inflicted on each offender fell from 10 in 1911 to 5 in 1958, and it has remained at slightly under 5 since then.

At the same time as the average number of strokes per offender was being reduced, provincial variations were also being eliminated. Table 22 sets out the changes in the incidence of corporal punishment according to province for the year ended 30th June 1958 compared with the year 1918.

[17] Act 33 of 1952 and Act 25 of 1955 brought about the changes which were consolidated in the Criminal Procedure Act 56 of 1955, Third Schedule, Part II.

Table 22 shows that Natal has lost its pre-eminence as the 'lashing colony', and that the incidence of whipping now corresponds roughly with the total population of each province. The Transvaal has moved from being third in terms of total whippings and last in terms of average number of strokes, to first in each category.

The word 'whipping' has been used here interchangeably with 'floggings' and 'corporal punishment', in the same way in which it has been used in South African legislation. The term covers both lashes with]

a cat-o'-nine-tails and strokes with a heavy or light cane. The use of the cat has in fact become increasingly rare, and the prisons reports appear to have made no mention of its administration since 1958, when four persons were whipped with the cat. A heavy cane is used for offenders over 21 years old and a light cane for those under 21.

Now that the courts have had their discretion restored as to whether or not to impose corporal punishment, the incidence of flogging has dropped considerably. It is still higher than it was thirty years ago, but proportionate to the total population it is lower than it was at the time of Union. Men who are over the age of 50 or else who are medically unfit may not be whipped, and it is never a competent punishment for women offenders. The flogging of white men and youths is relatively

infrequent but nevertheless not rare, as is shown in Table 23, which sets out the race and age of persons subjected to corporal punishment in the year ended 30th June 1969.

A comparison of the figures in Table 23 with those in the annual report for the year ended mid-1958 reveals that all racial groups have benefited from the recent reduction in thrashings, but that white offenders have benefited the most. The judges have also tended to exercise their discretion more benevolently than the magistrates, while even in the prisons, where corporal punishment for disciplinary offences was never made compulsory, its incidence has declined.

Chapter Seven—
Black Attitudes and Actions

Modernisation of the Union of South Africa did not lead to a relaxation of race domination but rather to an improvement in the techniques of control and greater sophistication in its justification. As the interdependence of black and white South Africans in a common economy increased, and as cultural differences between them diminished, so was the law used in ever greater measure to create statutory differentiation and to maintain black subordination. Thus industrialisation did not erode race distinction; on the contrary, it enabled segregation to be enforced with the powerful weapons of a modern state. The courts were an integral part of the State machine. While the higher courts from time to time delivered judgements which softened or delayed the impact of new segregatory measures, the lower courts continuously and on a massive scale punished breaches of established race-statutes.

White lawyers and judges have generally directed their attention to the occasional superior court judgements which have had great constitutional interest but little practical impact, whereas black litigants have generally been more concerned with the extensive number of inferior court cases which have had slender constitutional import but considerable practical effect.

To any litigant the character of neighbourhood law depends upon the kind of neighbourhood he inhabits. If he lives in a wealthy suburb and works in a thriving city centre, neighbourhood law signifies to him company flotations, property deals, tax avoidance, insurance claims, matrimonial disputes, embezzlement, motor offences and keeping black servants and employees under proper control. If he resides in a poverty-stricken compound or location, on the other hand, neighbourhood law denotes pass and tax raids, debtors' enquiries, and prosecutions for theft and violence. The legal profession has been overwhelmingly concerned with the welfare of the wealthy white litigant, and the bulk of legal literature has been devoted to examination of nuances of doctrine relevant to his disputes. To the half million Africans who go to prison each year, however, it matters little whether a new Chief Justice is liberal or segregationist, whether the courts rely

mainly on English or Roman-Dutch authorities, or even whether the law adopts an objective or a subjective approach to the question of criminal intent. Previous chapters have considered the incorporation of Africans into the legal order, judicial attitudes to race, and the extent to which the legal system has impinged on African life. It is now appropriate to investigate African attitudes towards the law and its administration.

Attitudes towards Lawyers

Was it proper that Africans should be legally represented in South African courts? This was one of the subsidiary questions investigated by the South African Native Affairs Commission, constituted by the British in 1903 to hear evidence and make recommendations on a unified 'native policy' for the sub-continent. Judging by their questions, most of the Commissioners were of the prima facie view that the answer was 'no', since lawyers appeared to be at best superfluous and at worst harmful to African litigants. Such a viewpoint was supported by a number of magistrates who testified that the true function of lawyers was misunderstood by Africans, whose respect for the administration was undermined by applications brought against the Government and further diminished by appeals noted against the judgement of magistrates. A police chief went further and urged that separate rules of evidence be created for Africans, so that they might be questioned more easily; he agreed fully with the suggestion from one of the Commissioners that the meaning of 'getting off' on a technicality was quite different for Europeans from what it was for Africans (Mavrogordato).

Some of the magistrates who gave evidence, however, insisted that lawyers were quite as useful in cases involving Africans as in any other cases, and almost without exception African witnesses spoke strongly in favour of retaining the right to be represented in court. One African witness went so far as to claim that every African boasted of his lawyer, while another said the African people would learn quickly enough how to make the best use of lawyers. If lawyers were so bad, he asked in effect, why did the whites use them? Questioned on whether or not the right to retain lawyers to advise them against the Government tended to teach Africans to be respectful towards authority, this last witness said that the lawyers would not advise them to bring actions against the Government if it were not the practice of the whites to do so in similar circumstances. Another witness repudiated the suggestion

that Africans were accustomed only to despotic forms of rule, and told the Commissioners: "You have had your Charles and your James, and knew how to deal with them—the same with the natives" (Jabavu). Finally, an African who had worked for a white attorney dispelled the idea that there was anything peculiar or mysterious about African attitudes towards lawyers. His evidence ran as follows:

Do the natives generally speaking like lawyers . . . ?—No, they do not like lawyers.

Do they not help them then . . . ?—It is a matter of necessity, going to the lawyers, but they do not like lawyers.

Why do they not like lawyers . . . ?—I do not suppose anyone in the world likes lawyers; lawyers are not liked on account of their fees (Umhalla).

The evidence of these and other witnesses indicated that Africans throughout South Africa had become accustomed to the use of lawyers, who, if they could not secure rights for them, could at least soften their disabilities. African witnesses complained about pass raids, curfews, rude policemen and unequal laws ("the law has only one eye"), but they did not disparage the use of lawyers. It might even be argued that the more unfavourably Africans felt towards the laws, the more well-disposed they were towards the lawyers. Racial statutes were so pervasive and the criminal law so extensive that lawyers came increasingly to occupy in relation to African society the position which doctors, moneylenders and priests occupied towards the poor of other lands. The word in everyday use amongst Africans in the Cape for lawyers was the unflattering 'igqwetha' , meaning 'perverter ' or 'twister', and traditionalist Africans expressed surprise that the whites who claimed to be upholders of the truth kept 'professional liars'. Yet if 'twisters' could save them from unjust (or even from just) punishments and appropriations, Africans were not averse to using them. For their part, if Africans paid their fees, lawyers were not averse to having them as clients. Many small firms of attorneys in various parts of the country began to develop lucrative practices on the basis of African clientele. Most of their work consisted of defending Africans charged with criminal offences, but they also handled civil claims, gave advice on a wide variety of matters, arranged for Africans to get permits and licences, and generally acted as intermediaries between Africans and the authorities. In more recent years the law compelling all motorists to take out compulsory third party insurance has made the humblest African pedestrian or cyclist a potential plaintiff for relatively substan-

tial claims, and as such welcome in the offices of even the largest and most respectable firms. There has in addition developed a small but active class of lawyers willing to act for reduced or no fees on behalf of African litigants, especially in cases where civil liberties have been directly in issue. Some of this latter group have earned great popularity amongst Africans, and have on occasion been chaired out of court. If for no other reason, they would have been enthusiastically accepted because of their willingness to subject policemen to vigorous cross-examination, since the court-room was the only place where it was possible to see policemen being hectored and even humiliated.

Attitudes towards Police

Policemen and police raids have long impinged deeply on the consciousness of Africans, particularly those living in the urban areas. A social anthropologist who in the 1930s collected dreams of Africans living in an eastern Cape town, reported that the motif which occurred most frequently was that of a police raid. Several times when going round the location for the purpose of interviews, she heard a warning cry which announced the impending arrival of the police, and saw women rush to empty or hide tins of beer, while other residents gathered in groups until the police went by. In her view the continual conflict between residents and authorities over petty matters meant that in serious affairs the police did not get the support of the law-abiding section of the population. In a more recent survey of a location in Cape Town, she and an African colleague made the point that in any society the attitude towards the police varied in a well-to-do suburb from that in a slum; what was peculiar about African locations was that all the 'decent people', including the middle class, were in conflict with the police in only slightly less a degree than were the town toughs (Wilson, Mafeje).

The police raid has also featured as a dominant theme in African autobiographical literature. The first African professor in South Africa, Professor Jabavu, complained sharply in the 1930s of what he called the unnecessarily coarse treatment handed out to arrested Africans by "ruffians who merit dismissal from their jobs". It was a dreadful experience, he wrote, for an African to be caught in the streets of town after curfew hour; an inebriated white could roam safely, but a respectable African was a target for any policeman. In his view the pass laws were similar to those which circumscribed movement during martial law at a time of belligerency, and "South Africa, so far as we aboriginals are

concerned, is a country perpetually in the throes of martial law from which there is no escape". Thirty years later the Professor's daughter described how her aged father pleaded with the police for the release of a cousin who had been arrested for being 'cheeky' after coming to their village to attend her brother's funeral; the Professor spoke abjectly to the sergeant, "appealing to the humanity we all know lurks behind those granite-hard, sun-tanned faces, behind those glittering blue eyes".

The writer Ezekiel Mphahlele wrote in his autobiography how after leaving a party given in a 'white' suburb to celebrate his receipt of an M.A. degree in literature, he was stopped on his way home by five different batches of policemen over a distance of fifteen miles, a ghastly reminder to him of motion pictures showing life in occupied countries during the war. His childhood in the 1930s had been dominated by the police—once he had been so terrified by the mere sight of a constable that he had hidden behind a bush—and in the 1950s he found that his children were in turn overwhelmed by their presence. His oldest boy always reminded him when he went shopping not to forget his pass; his middle son strutted around with imitation handcuffs, crudely made of wire, shouting: "Where's your pass, I'll teach you not to be naughty again"; whilst his four-year-old clung to him every time a policeman walked by and said: "Daddy, is the policeman going to arrest me, is he going to take you, is he going to take mamma?" Chief Luthuli also related in his autobiography how as a schoolboy he learnt to beware of the police. He stated that the white police were the section of the white community who had the most intimate and regular meeting with Africans; those who behaved with restraint he had applauded, but generally "they must assert and parade themselves, demanding this, ordering that and hurling abuse". For Africans "our country has been made into a vast series of displaced persons camps". He himself was gratuitously beaten by a policeman while in custody in 1960. Finally, he asked, could anyone who read in the press a routine announcement of a pass raid by police possibly imagine "the fear of the loud, rude bang on the door in the middle of the night, the bitter humiliation of an undignified search, the shame of husband and wife being huddled out of bed in front of their children and taken off to a police cell?"

The theme of the police raid figured prominently too in the autobiography of the writer Bloke Modisane, who as a child saw his mother insulted, sworn at and bundled into a police van so often that it began to seem to him part of their way of life. The hero image he had had of his

father was destroyed when a policeman demanded his father's pass. Location residents never knew whether a loud hammering on the door heralded the police or gangsters, nor of which group to be more afraid. He recalled a pre-dawn police raid conducted to check on residents' permits; the police burst into his home, shining a torch into the eyes of his wife and frightening his child. "When the police drove off . . . people emerged from out of the dark yards, out of the ruin of demolished houses, out of the dark alleys; they were dressed in scanty garments: blankets, bed-sheets, towels, table spreads, in almost anything which was handy at the rime of fleeing . . . from the processes of the law which required them to have a permit to live in the peace and security of their homes." The passes, officially called reference books, assumed such importance in the eyes of authority that they seemed to develop a life of their own. He suggested that marriage ceremonies could well be conducted as follows: "Do you, reference book no. 947067 take reference book 649707 as your lawfully documented wife?" Africans were expected to be eternal students at the school of good manners, he added, but the law was white, and in the location in which he lived heroism was measured by acts of defiance against the white man's law and order.

Brown and Black Lawyers in Action

i—
Passive Resistance—Advocate M. K. Gandhi

The first dark-skinned professional lawyer in South Africa was M. K. Gandhi, and the difficulties he encountered have already been referred to. Initially he was a strong believer in constitutionalism, the power of reason and the fairness of British rule, and this led him to adhere strictly to constitutionally acceptable forms of action, such as appearing in court on behalf of indentured labourers, drawing up petitions, organising public meetings and protesting through the press. Yet however persuasively he argued, the white colonists were always able to find a suitably phrased formula to oppose him, and in the end arguments were won on the basis not of pure reason, but on who had the ear of the Colonial Office. Thus the disfranchisement of Indian voters in Natal was effected by a measure which, purporting to be free of colour restrictions, allowed the vote only to those persons who had come from countries which had known Parliamentary institutions.

All the while, Gandhi was being prepared in a very personal manner for the kind of life style that was later to be associated with his name.

His abandonment of the splendid habits of a barrister in favour of the spare accoutrements of an ascetic was not precipitated by any sudden moral conversion. He adopted the philosophy of self-reliance partly because of the refusal of white barbers to cut his hair when he was due to go to court; he decided to renounce sexual pleasure and dedicate all his passion to public life after wandering in the hills of Zululand during the crushing of the Zulu 'rebellion'; and he vowed to refuse all food that gave pleasure to the palate after receiving the tasteless food given to black prisoners in South African jails.

If the first decade of his sojourn in South Africa was dominated by years of practice as a lawyer and months in the field as an ambulance-man, the second decade was devoted almost entirely to leading his people in campaigns of civil disobedience against the law. His loss of faith in the British Empire coincided with what he regarded as a betrayal of hopes after the British victory in the Anglo-Boer War. During the war he had frequently been at the battlefront, and had carried the son of the British Commander, Lord Roberts, from the field. The British tommies had been so friendly towards his ambulance corps that despite his feeling that the Boers were the victims of an unjust war, he looked forward to a British victory, inasmuch as it promised to usher in a new era of civil rights for brown South Africans. Instead he found that the British Army officers were harsher than the Boer officials had been. His disillusionment was complete when power was handed over in the Transvaal to an all-white legislature,which promptly reversed a court decision which had been favourable to Indians and imposed trade restrictions and pass laws on Indians (1907). Under Gandhi's leadership, the angry Indian population in the Transvaal refused to register for passes, whilst hundreds of traders defiantly plied their wares in areas forbidden to them. Thus South Africa, recently the birthplace of commandos and concentration camps, now became known as the birthplace of passive resistance, or, as Gandhi preferred to call it, satyagraha . (In fact the term passive resistance had been used previously in England in connection with educational struggles.) By the time the first campaign of passive resistance came to an end, more than 2,000 Indians had been imprisoned for periods of up to six months each, 700 for non-compliance with the registration laws and 1,300 for illegal trading. Many of those convicted of illegal trading were workers and professional men who deliberately pushed barrows to court arrest. One of the latter wasa Natal-born barrister and graduate of Cambridge who, according to Gandhi, left his law books, took up a basket of

vegetables, and was arrested as an unlicensed hawker. Gandhi now found himself placed in the dock, and he wrote later that it was an embarrassing experience standing as an accused in the very court where he had often appeared as counsel, but he considered that the former role was far more honourable than the latter, and willingly accepted his imprisonment. Later he was marched through the streets of Johannesburg wearing convict's clothes and carrying his bundle as any convict would.

Gandhi's principal individual antagonist at this time was Smuts, the brilliant lawyer, turned guerilla leader, turned politician. The Mahatma and the General were diametrically opposed to each other on many issues, but they also had much in common. Both were barristers trained in Britain, both belonged to communities aggrieved by British Imperial policy, both were activist politicians with a philosophical turn of mind, and both were noted for their simple habits and lack of personal ostentation. Yet whereas Gandhi was now entering a period of opposition to Empire, Smuts had just begun to follow the road of collaboration with the British, and whereas Gandhi was later to spend many years in prison for leading campaigns on behalf of a colonised majority, Smuts was to exercise power on behalf of a dominating minority. Gandhi is said to have spent some of his time during his first spell in prison fashioning a pair of sandals for his opponent Smuts, and Smuts is said to have remarked later that it was difficult to walk in the shoes of such a man. Yet at the time the two men were to indulge in bitter exchanges. Gandhi was brought from his prison cell to negotiate a settlement with Smuts; they were both lawyers and expert in the art of compromise, yet they did not keep notes of the agreement they arrived at, and each subsequently accused the other of dishonesty. The passive resistance campaign flicked to life once more, and the flames of civil disobedience spread to Natal. Indians in Natal were incensed by two issues: one, a poll tax recently imposed on them, and two, a Supreme Court decision that customary Indian marriages were legally invalid because they were potentially if not actually polygamous. A general strike of Indian workers was called, and Gandhi led 2,000 strikers and their families in an illegal march across the Natal-Transvaal border. A thousand of the marchers were sentenced to imprisonment, and Gandhi was ordered to spend a year in jail. The uproar that followed the killing of ten strikers by the army and police coincided with a simultaneous but unconnected threat of insurrection by white artisans on the Rand, and compelled Smuts once more to seek a negotiated settlement with Gandhi. Once again Gandhi was brought from his prison cell to

Smuts' office, and for a second time agreement between the two men was reached. Eventually legislation was passed which relieved Indians of the specific disabilities against which they had campaigned, but did not grant to Indians any further civic rights. Twenty years earlier Gandhi had arrived in South Africa as a well-mannered, elegantly attired and shy young barrister; now he departed as a lean, simply-dressed and resolute political campaigner. "The Saint has left our shores," Smuts observed, "I sincerely hope forever."

Gandhi did not in fact return to South Africa, though he continued to take a close interest in South African affairs. One of his sons remained behind, and took part in two further passive resistance campaigns after the Second World War. The first of these campaigns was launched at a time when Smuts and Gandhi were both elderly men at the height of their fame and approaching the end of their careers. Smuts had been Prime Minister of South Africa for a total of nearly fifteen years, and Gandhi was the elder statesman of newly independent India. The campaign of South African Indians against what they called Smuts' ghetto laws, focused international attention on South Africa, and led the Indian Government to charge in the United Nations that South Africa was ill-treating her citizens of Indian origin. Smuts had helped to draft the Charter of the United Nations, and now he suffered the indignity of finding his own Government amongst the first to be stigmatised for breach of its provisions. In this connection, however, he was not without honour in his own country, and he received strong backing from the two law journals published at the time. The then editor of the South African Law Journal , who was later to become a Judge of Appeal, noted the strange turn whereby the coloured races of the world could dictate to the European how to conduct his own white civilisation, and he rejected the charges of ill-treatment as being based simply on a refusal to give the Indians, who were mostly of the coolie class, political and social equality with the Europeans (Hall, 1949). Similarly, a senior government law adviser who was later to become Chief Justice used the columns of the Tydskrif to denounce the charges against South Africa, though he did so in more dignified language (Steyn, 1949). The major difference between the two articles was that whereas the former implied that the Indians were too poor to be entitled to have the franchise, the latter hinted that they were too rich to need it.

At this time there were very few Indian lawyers in practice in South Africa, but many of the younger supporters of the passive resistance

campaign were now becoming legally qualified, and in the 1950s a new generation of young and politically radical Indian lawyers emerged. By 1962 out of 26 Indian attorneys and four Indian advocates in the country, nearly half had been subjected to banning orders by the Government because of their support for joint campaigns by the Indian and African Congresses against apartheid. Later in the decade even stronger action was taken against them, and one Indian advocate was sentenced to several years imprisonment for illegal political activities, and two were struck off the roll for being on a list of former members of the Communist Party. Many of the others were able to establish successful practices, but nevertheless they still had to endure the kinds of social indignity suffered by Gandhi seventy years earlier. Thus the first Indian barrister to appear in the Appeal Court was commended by the judges for his eloquent pleading, but when the tea-break arrived he was refused the customary cup of tea offeredby the court staff to counsel, and when lunch-time came he was obliged to eat sandwiches in his motor car because there was no restaurant or hotel in Bloemfontein which would serve him (1959).

ii—
Active Resistance—Attorneys Mandela and Tambo

At the beginning of the twentieth century more than a hundred Africans were sent to Britain and the United States of America by various missions in South Africa to receive higher education. Most qualified as missionaries and teachers, but a few returned as lawyers and set up practice in South Africa. The pioneer of this latter group was Alfred Mangena (1879–1924) who after being called to the Bar in London, returned to the Cape and then decided to practise as an attorney in Johannesburg. At this stage a conference was being held to unify the Bars of the different parts of South Africa, and Mangena's arrival on the scene highlighted the conflicting racial attitudes of the Transvaal and Orange Free State Bars on the one hand, and the Cape Bar on the other. The northern advocates, whose delegates included Smuts and Hertzog, insisted that only white persons be allowed to join the proposed new union of advocates, whereas the Cape barristers, led by W. P. Schreiner, were determined to have no colour bar; in the end the conference broke down on the issue. The Transvaal Law Society, which represented attorneys in the Transvaal, followed the lead given by the Transvaal Bar, and when Mangena formally applied to the Supreme Court to be admitted to practise in the Transvaal, the Society opposed his application. The matter featured briefly in the Law Reports,

which stated that the applicant "possessed Ac statutory qualifications, but was a native"; the President of the Law Society declared in an affidavit that in the existing state of society in the Transvaal there was no possibility of a native finding work as an attorney among white people, and that the applicant would have to practise among the natives; that the policy of the Government was to discourage litigation among them and to encourage them to have their grievances settled by the native affairs department or by means of native courts: that it would not be in the interests of natives of the Transvaal to create among them a class of native practitioner, and that the Law Society would find it difficult to exercise discipline over him. The judge held, however, that the Court would not be justified in refusing the application merely because the applicant belonged to one of the native races, or because there was no precedent in the Transvaal, nor would the Court assume that the applicant was going to encourage litigation amongst natives or behave dishonourably.

A short while afterwards two more Africans set up practices as attorneys in Johannesburg, R. W. Msimang, who had qualified as a solicitor in Somerset, and P. K. Seme, who after a distinguished career at Columbia University had gone on to Oxford and been called to the Bar in London. Seme's academic distinctions made him a respected figure in the African community, but did not save him from indignities in the course of his work, such as having to walk up five flights of stairs to consult with counsel because he was forbidden to use the lift. Although Seme was to remain in practice for many decades, these early African lawyers became better known for their political activities than for their legal work. In particular they were remembered for having convened the first conference of the African National Congress (ANC) and for having drafted its constitution (1912).

For the next forty years very few Africans entered the legal profession. The obstacles were social, educational and economic—bursaries were available for African matriculants intending to work for Church bodies or for the Government, but not for those desirous of becoming self-employed, and especially not for those who might become political agitators. Probably the biggest single barrier was the unwillingness of white attorneys to take on Africans as articled clerks. One African managed to qualify as an advocate by means of a correspondence course, but he did not go into practice, and instead became a respected academic figure and Vice-President of the ANC (Professor Z. K. Mathews). Yet just as at the time of Union embarking on a legal career

had impelled young Africans into politics, so after the Second World War an interest in politics drove young Africans into law. Oliver Tambo and Nelson Mandela both discontinued their studies at Fort Hare University College after they had come into conflict with what they had regarded as excessively paternalistic authorities, and then served articles in Johannesburg with a view to becoming independent professional men. While in Johannesburg they met up with A. M. Lembede, who was articled to the now ageing and conservative Seme, and the three young men formed a new trio of ardent African nationalists determined to advance African claims. Lembede died at an early age, but Tambo and Mandela qualified as attorneys, set up in partnership, and became popular both as lawyers and as political leaders. They encouraged a friend and political colleague of theirs, Duma Nokwe, to study for the Bar, and in 1956 he became the first African to practise as an advocate in the Transvaal. At about this time the Government was using the provisions of the Bantu Education Act, 1953, to purge the ranks of African teachers of men who believed in equal rights, and a number of dismissed teachers thereupon qualified as lawyers. Yet the accretion of Africans to the legal profession was slow, and by 1962 there were only 13 African attorneys in practice in the whole country, and no advocates. Thus out of a total of approximately 3,000 attorneys in South Africa, only 44 were not white: 13 Africans, 26 Indians and 5 coloured persons. Africans constituted 70 per cent of the country's population but accounted for less than 0.3 per cent of the legal profession: their share of the £17 million income earned in that year by all attorneys amounted to only £15,000.

During the 1960s a number of African lawyers were imprisoned or placed under banning orders, while others slipped over the border into exile. Prominent amongst those who went into exile was Duma Nokwe, who during his few years at the Bar had been put on trial for treason, detained without charge, assaulted by a policeman (for which he was awarded damages), and prosecuted for carrying on the activities of the banned ANC. While some of his colleagues at the Bar had been friendly towards him, others had been hostile, such as the advocate who on being formally introduced to him looked at his outstretched hand and said: "No money today . . . out!" At the Supreme Court a special robing room had been set aside for him, in case, as he put it, he contaminated his white colleagues by donning his gown in front of them. Eventually he had gone over to full-time political work under cover of a dry-cleaning business, before finally leaving the country.

Yet despite the enforced departure of many African lawyers from practice, the 1960s saw a relatively rapid increase in the total number of Africans pursuing legal careers. By the beginning of 1969 the total was 44, two of whom were at the Bar; most of the attorneys were concentrated in Durban, Johannesburg and the Transkei. As far as the legal profession as a whole was concerned their numbers were tiny and their influence correspondingly small. Not a single African was in practice in the Orange Free State, not one in the Transvaal outside of Johannesburg, and not one in any of the tribal areas other than the Transkei. Those practising in the cities were faced with the threat of having to give up premises in the vicinity of the courts, and all were subject to the general restrictions imposed by law and practice on Africans. Nevertheless, they could hope to receive an income considerably greater than that available to all but the wealthiest Africans, and to have a relatively large measure of independencein their work.

For the few lawyers who chose the path of active collaboration with the Government, the rewards were even more substantial: Kaiser Matanzima became Chief Minister in the Transkei Parliament, and his brother George (no longer in practice after having been struck off the roll for irregularities) became Minister of Justice, while the Leader of the Opposition, K. Guzana, was also an attorney. Kaiser Matanzima expressed his enthusiasm for working with Pretoria in the following words:

Summarised, our policy in the Transkei embraces a wholehearted acceptance of the policy of separate development; gradual and evolutionary progress in the Transkei towards greater autonomy; a firm rejection of the policy of multi-racialism; the preservation and development of our father-land by all means at our disposal; the promotion of the welfare of our people in all fields of human endeavour; the preservation of our own traditional system of chieftainship; the establishment in the Transkei of a state founded on justice, law and order; and finally a policy of intimate friendship with our mother-country, the Republic of South Africa (TLAD 1965, 1, 120).

When a motion was moved in the Transkei Assembly that the Pretoria Government be asked to release political prisoners who had come from the Transkei, George Matanzima moved an amendment which expressed full appreciation towards the Pretoria Government "for taking suitable and timeous steps against communist infiltrations into South Africa and the saboteurs who have no respect for life and

property" (TLAD 1965, 2, 271). The man whose name cropped up most frequently in the debate on the above question was Nelson Mandela, and it is appropriate now to examine the history of the partnership of Mandela and Tambo to see how the attitudes of radical African lawyers towards the legal order were expressed, and with what consequences.

In the early 1950s Mandela and Tambo practised as attorneys in Johannesburg in a shabby office across the street from the magistrate's court. Theirs was the best known African legal partnership in the country, and they occupied premises in one of the few buildings in central Johannesburg where Africans were permitted as tenants. Tambo later described the scene as follows:

To reach our desks each morning Nelson and I ran the gauntlet of patient queues of people overflowing from the chairs in one waiting room into the corridors. . . . Weekly we interviewed the delegations of grizzled, weather-worn peasants from the countryside who came to tell us how many generations their families had worked a little piece of land from which they were now being ejected. . . . Our buff office files carried thousands of (similar) stories (from the towns) and if when we started our law partnership we had not been rebels against South African apartheid, our experiences in our offices would have remedied the deficiency. We had risen to professional status in the community, but every case in court, every visit to the prisons to interview clients, reminded us of the humiliation and suffering burning into our people.

Even in their years of apprenticeship they had been given constant reminders of their status as Africans. Mandela had been articled to a relatively liberal firm of attorneys, yet he had been given a special cup from which to drink his tea; one day a white typist had been so embarrassed at having been seen taking dictation from him, that she had given him a sixpence and asked him to fetch her some shampoo from the chemist.

When in 1952 the ANC and the South African Indian Congress launched a passive resistance movement, known as the Defiance of Unjust Laws Campaign, Mandela was named as Volunteer-in-Chief. It was he who wrote the code of discipline for the defiers, and when the campaign came to an end (more than 7,000 persons had been convicted of participation) he was one of the leaders given a nine months suspended prison sentence for promoting what the judge called 'statutory communism'. The Minister of Justice also imposed a series of banning

orders on him, and the Transvaal Law Society moved the Supreme Court to have him struck off the roll of attorneys. The Society's main argument was that any person who incited others to break the law was not a fit and proper person to act as an attorney, but the court vigorously rejected the application and declared that nothing had been placed before it which suggested in the slightest degree that Mandela had been guilty of conduct of a dishonest, disgraceful or dishonourable kind. ". . .In advocating the plan of action," the judges said, "the respondent was obviously motivated by a desire to serve his fellow non-Europeans."

The firm of Mandela and Tambo carried on in practice, but did so precariously. Permission for them to occupy premises in central Johannesburg was withdrawn, and they did their work under constant threat of eviction and prosecution. In December 1956 both partners were amongst the 156 persons of all races arrested and charged with High Treason.

South Africa has known many treason trials but the one brought against supporters of the ANC had the distinction of being both the longest and the least successful (1956–1961). Unlike the previous trials, this one was not a sequel to war, rebellion or insurrection. It was based on a document called the Freedom Charter which had been adopted at a public congress held in the presence of the police. Mandela and Tambo associated themselves with the demands of the Charter, which called for the creation of a non-racial democratic state assuring equal rights to all citizens. One section of the Charter declared that All Shall Be Equal Before The Law, and specified that no one should be condemned or restricted without fair trial; that the courts, the police and the army should be open to all and serve as the protectors of the people; that imprisonment should be for serious crimes and be aimed at re-education not vengeance; and that all discriminatory laws should be repealed. The prosecution case in essence was that these goals could be achieved only by violence, which was implicit in the ideology of all the accused and explicit in the language of some of them.

The legal profession was well represented amongst the accused, who included four African and two Indian attorneys, and one African and two white advocates. One of the advocates conducted his own defence, and was allowed to sit with defence counsel (Slovo), while another spent his time in the dock writing a book about the trial, which was published well before the trial was over (Forman, 1957). A composite photograph of all the accused appeared on the cover of the book, and

standing out as certainly the tallest and possibly the most independent-looking of all the accused was Mandela.

Tambo later described Mandela as passionate, emotional, sensitive and quickly stung to bitterness and retaliation by insult of patronage. "He has a natural air of authority. He cannot help magnetising a crowd: he is commanding with a tall handsome bearing; trusts and is trusted by the youth, for their impatience reflects his own, appealing to the women. . . . He is the born mass leader."

During the early part of the trial, Mandela took little or no part in the proceedings other than to sit in the dock and listen to the evidence. A number of leading Johannesburg counsel handled the defence at reduced fees, and a special Treason Trial Defence Fund was established under the auspices of liberal clergymen, Members of Parliament and trade unionists; eventually the Fund raised more than £ 200,000, much of it from abroad. A vigorous opening address by one of the country's leading criminal lawyers ended with the assertion that the case was "a political plot of the type which characterised the period of the Inquisition and the Reichstag Fire Trial" (Berrangé).

The trial dragged on for four and a half years, causing great personal inconvenience to the accused, but also giving them the opportunity during adjournments to plan further campaigns of the kind which had brought them to the dock. During the trial, some of the accused became parents, some died and some got married; on one day Oliver Tambo and two other of the accused were respectively wed, causing advocate Forman, accused number 83, to write that "never in the history of South Africa have so many people accused of high treason gathered together to celebrate the wedding of so many people accused of high treason".

The bulk of the prosecution evidence consisted of documents found at the homes of the accused and transcripts of speeches made by the accused. Compared with the grim trials that were to take place in the 1960s, the Treason Trial frequently assumed the character of farce, particularly when detective witnesses were tested on their capacity for taking accurate notes in longhand. One detective admitted that he had been unable to understand the language used by the speakers at a meeting allegedly part of the treasonable conspiracy, but added that the chairman had provided him with a special interpreter. His cross-examination proceeded as follows:

Counsel: Do you hold your notebook in one hand? — Yes.
Do you hold your pencil in the other hand? — Yes.

Then where do you keep your pen? — In my mouth.
There are two different colours of ink in your notes? —
Yes, I can manage with two pens in my mouth.
Do you always carry your pens in your mouth?

Magistrate: Well, his mouth is big enough.

In the case of another detective witness the entire cross-examination occupied three lines:

When you go to meetings, do you go with the object of seeing if any offences are committed? — I don't understand.

No further questions. I just want the court to appreciate how much you do understand.

On one occasion the court adjourned early in order to enable the accused, who were out on bail, to take part in a street collection on behalf of the Treason Trial Defence Fund.

Until 1960 the accused played an entirely passive role in the proceedings. A number of them were discharged at the end of the preparatory examination, whilst the others were split up into three groups, only one of which was actually brought before the Supreme Court. Mandela belonged to this latter group, but Tambo did not and was able to carry on with his legal work. It was at this time that apartheid notices were being put up in court-rooms throughout the country, and in Johannesburg a magistrate ordered Tambo to take his seat at a table reserved for non-white lawyers. Tambo tried to argue from the table he had always used, that the magistrate's direction lacked lawful authority, and after a prolonged dispute involving several appearances in court first by Tambo and then by a clerk from his office, the clerk was fined for contempt of court, on the ground that he had refused to argue the invalidity of the magistrate's order from the separate table. The finding of the Appeal Court, namely that the accused would be as well seated at the one table as at the other was therefore in contempt of the magistrate, has already been dealt with (Chapter Five).

Graver issues than this, however, were to bring Tambo's legal career to an end. During the crisis which followed the shootings at Sharpeville early in 1960, Tambo was sent out of South Africa to campaign for the ANC abroad. Mandela, on the other hand, was one of thousands of persons placed in preventive detention under special emergency regulations; the Treason Trial continued, but under difficult circumstances, and eventually the accused decided by way of protest to dispense with counsel and conduct their own defence. Mandela had already emerged as the leading personality amongst the accused. He

voiced their protests in prison and in court, and now he and his coaccused Duma Nokwe formally took over the running of the defence, their task being facilitated by the fact that after four years in the dock all the accused were thoroughly familiar with court-room styles and tactics. Several months later as the State of Emergency approached its end, counsel were re-engaged, and Mandela entered the witness box for the first time. His evidence and cross-examination lasted four days, during which he adamantly insisted that the ANC was committed to a policy of non-violence, even if it delayed the achievement of emancipation. One of his co-accused was so impressed by his demeanour in the witness box that as he stepped down to resume his seat in the dock, she wished to applaud, and wondered what the judges had made of what she called "this outstanding leader of the African people" (Helen Joseph, accused no. 2).

The Treason Trial eventually came to an end in 1961 when the three judges hearing the matter cut short argument by defence counsel and gave their verdict. They agreed unanimously that all the organisations charged in the indictment had worked together to replace the existing form of State with a radically different one based on the Freedom Charter. The prosecution had not proved, however, that such a State would be a communist one or that the accused had propagated the communist doctrine of violent revolution, and the court found it impossible to come to the conclusion that the ANC's policy was to overthrow the State by violence. The accused were accordingly found not guilty, and in great triumph they chaired their counsel to crowds of supporters waiting in the streets outside; they might have claimed that if their trial had borne any resemblance to the Reichstag Fire Trial, then it had been like that trial without even a Fire. The prosecution had been based on the assumption that campaigns for democracy in South Africa could only succeed by means of violence. The implications of such an approach were serious, but few of the accused seemed to have considered themselves in real jeopardy. If, however, the trial at times took on the aspect of farce, it can be argued that the legislative postscript was to rewrite the farce as tragedy.

The trial was concluded at a time of considerable political tension in the country. The ANC and a breakaway group led by Robert Sobukwe called the Pan-Africanist Congress (PAC) had both been banned after the shooting at Sharpeville in 1960, and later in that year the white electorate had decided by a narrow majority in a referendum that South Africa should become a republic. African leaders had protested

about the fact that the African people had not been consulted about South Africa's new constitution, and they were now proposing to hold a conference to state their attitude. Fortuitously the banning orders on Mandela expired at this time, and Mandela emerged as the main speaker at the conference, voicing its demand for a national convention to be held representative of all groups in South Africa, at which a new nonracial, democratic constitution could be worked out. Later he wrote to the Prime Minister in the same terms, but the letter was handed over to the police, and Mandela then called for a general stoppage of work to coincide with the formal declaration of a Republic. To avoid capture by the police, Mandela went underground, the first prominent African leader to do so in modern times. The strike was only partially successful, but Mandela stayed underground, flitting from one part of the country to the next and earning for himself the name of the Black Pimpernel. The panache he had once exhibited as a lawyer he now displayed as an outlaw, but eventually after eluding the police for seventeen months, during which time he managed to go abroad and meet leading statesmen in Africa and Europe, he was captured and put on trial for inciting Africans to strike and for leaving the country illegally.

The defence which Mandela put up at this trial involved the most comprehensive and widely reported critique of the administration of justice ever made in South Africa. Mandela was not the first black man to challenge the right of racially constituted courts to sit in judgement over him. Individuals had done so before, and leaders of the PAC had boldly challenged the jurisdiction of the courts at the time of Sharpeville in 1960. Thus Robert Sobukwe had refused to plead to the charge on the basis that he felt no moral obligation to obey laws made by a white minority, and he had stressed that in his view unjust laws could not be justly applied. Yet Mandela's experience as a lawyer enabled him to examine the whole question of the administration of justice in South Africa with particular thoroughness, and his words, which were of special relevance to the theme of this study, will be quoted from extensively.

For sixty years lawyers defending rebels in South African courts had accepted the right and duty of the State to prosecute alleged lawbreakers. Most defences had turned on questions of fact, with the accused either denying participation or else trying to minimise their role in activities that were admittedly illegal. Occasionally speeches in mitigation of sentence had alluded to political conditions in the country, and delicate suggestions had been made that autocratic be-

haviour on the part of certain officials had contributed towards rebellion. Some Afrikaner rebels in the Cape and Natal during the Anglo-Boer War had claimed that they were citizens of the Boer Republics and therefore entitled to be treated as prisoners of war, but the reports of trials during this period do not suggest that any attempt was made to challenge the overall legitimacy of the laws and the courts in the British Colonies. There had been over the years many unsuccessful challenges to martial law courts, but the authority of the ordinary courts had not been put in question. The defence, the prosecution and the judges had been at one in acknowledging the legitimacy of the ordinary legal system and the laws which it enforced. In juristic terms, the courts had held that they could not enquire into the legality of the authority which had constituted them. In political terms, conquered Afrikaners, defeated Africans and suppressed strikers had submitted to the jurisdiction of their victors.

Mandela began his defence by calling upon the magistrate to recuse himself on the grounds that he would not be able to ensure that Mandela had a fair trial. By means of this procedural device, Mandela threw into question the whole basis of law enforcement in South Africa. He stressed that from a personal point of view he held the magistrate in the highest regard, and apologised in advance for having to refer frequently to 'the white man' and 'the white people', because he detested racialism from any quarter, but was compelled to use this terminology because of the nature of the application. In essence he claimed that he feared he would not consider himself either legally or morally bound to obey laws made by a Parliament in which he had no representation.

From a technical point of view he based his application in the wellknown principle that not only must justice be done, it must be seen to be done, and that any fact which gave rise to a reasonable apprehension in the mind of the accused that a judicial officer was lacking in impartiality rendered it necessary for such judicial officer to withdraw from the trial. Mandela went well beyond the usual limits of such application by alleging a bias arising out of a general social situation rather than from anything particular to the magistrate. In jurisprudential terms, his argument used natural law propositions to challenge the whole positivist foundations of the South African legal system. It attacked the concept of legal autonomy whose supporters claimed that it was possible for unjust laws to be justly administered. From a political point of view the application documented as clearly as any contemporary

statement the transition of African nationalists from the politics of protest to the politics of revolution, since his challenge was directed not only at the political system in South Africa, but at the whole legal and administrative apparatus whereby it was maintained. Paradoxically, as an accused person in court, Mandela had a greater opportunity to articulate and get publicity for radical African demands than he had ever had whilst still unapprehended; this was the price the authorities had to pay for using the courts as an integral part of their system of social control.

His first proposition was that in a political trial involving a clash of the aspirations of the African people and those of the whites, it was wrong for whites to act as judges in their own cause, that is, for the aggrieved to sit in judgement over those against whom they had laid a charge. He conceded that an African in court enjoyed, on the surface, the same rights and privileges as a white person in that his trial would be governed by the same rules of procedure and evidence. Yet there was no real equality before the law. Africans had no right to participate in the making of the laws whereby they were governed, nor the right to get relief from the courts on the grounds that constitutional guarantees had been violated, nor the right to take part in the administration of justice. "The white man makes all the laws, he drags us before his courts and accuses us, and he sits in judgement over us. . . . I feel oppressed by the atmosphere of white domination that lurks all around in this court-room. . . . I have grave fears that this system of justice may enable the guilty to drag the innocent before the courts. It enables the unjust to prosecute and demand vengeance against the just." It was understandable, he said, that citizens who had the vote as well as direct representation in the country's leading bodies should be morally and legally bound by the laws governing the country; it should be equally understandable that Africans should adopt the attitude that they were neither morally nor legally bound to obey laws which they had not made, nor could they be expected to have confidence in courts which enforced such laws. He was aware that South African courts had often upheld the right of the African people to work for democratic change, and some judicial officers had openly criticised the policy which refused to recognise that all men were free and equal. He welcomed the existence of democratic values amongst some of the country's judges, but such honest and uprightmen were few and they had failed to convince the rest of the white population that white supremacy led to disaster. He added:

Even though now I happen to be tried by one whose opinion I hold in high esteem, I detest most violently the set-up that surrounds me here. It makes me feel that I am a black man in a white man's court. This should not be. I should feel perfectly at ease and at home with the assurance that I am being tried by a fellow South African who does not regard me as an inferior, entitled to a special kind of justice.

The court might say that he would be tried fairly and without fear or favour

. . . but broadly speaking Africans and whites in this country have no common standard of fairness. . . . Whatever the white man may say in his defence, his moral standards in this country must be judged by the extent to which he has condemned the vast majority of its inhabitants to serfdom and inferiority. We, on the other hand, regard the struggle against colour discrimination and for the pursuit of freedom and happiness as the highest aspiration of all men.

In conclusion, he declared that he made no threat when he said that unless these wrongs were remedied without delay "we might well find that even plain talk before the country's courts is too timid a method to draw the attention of the country to our political demands".

The magistrate interrupted Mandela a number of times, but did not prevent him from completing his statement. Not surprisingly, the magistrate rejected the recusal application and ordered that the trial proceed. (Mandela later brought another recusal application, alleging that the magistrate had been seen in a motor car in the company of two members of the Security Branch, who were assisting the prosecution, one of whom had given evidence. This application was also refused.) After evidence had been led for the prosecution, and Mandela had declined to go into the witness box, which would have been inconsistent with his challenge to the legitimacy of the proceedings, he was found guilty of both charges and asked if he had anything to say before sentence was passed on him.

Mandela was now presented with a second opportunity to address general remarks to the court. Unlike some American accused and their lawyers who recently (1969) deliberately broke established rules of etiquette in order to demonstrate their objections to the way justice was being administered, Mandela used recognised procedures to make his points and maintained normal court decorum throughout. Traditionally in South African practice a speech in mitigation of sentence related to the moral rather than the strictly legal aspects of the accused's

conduct. Whereas at the beginning of the trial Mandela had concentrated on giving his views on the role of the courts in a racially stratified society, now he dealt primarily with the history of African submission to and resistance against the dominant legal order.

He spoke first of how as a boy in a village in the Transkei he had listened to the elders of the tribe telling stories of the good old days before the arrival of the white man, when his people had lived peacefully under the democratic rule of the kings and their councillors. "We occupied the land, the forests, the rivers; we extracted the mineral wealth beneath the soil. . . . We set up and operated our own government, we controlled our own armies and we organised our own trade and commerce. The elders would tell tales of the wars fought by our ancestors in defence of the fatherland as well as the acts of valour performed by generals and soldiers during these epic days." Leaders of different tribes had been mentioned as the pride and glory of the entire African nation. The foundation of government in early African societies was that all men were free and equal, and there were no classes, no rich and poor, and no exploitation of man by man. The council which governed the affairs of the tribe was fully democratic; chief and subject, warrior and medicine man, all took part and endeavoured to influence its decisions, and no step of any importance could ever be taken by the tribe without reference to it. There was much in such a society that was primitive and insecure and that could never measure up to the demands of the present epoch, but it nevertheless contained the seeds of a revolutionary democracy in which no one would be held in servitude, and it provided inspiration to those who sought to create a new democratic South Africa.

Mandela next dealt with his legal and political career, and pointed out that although many officials had treated him and his partner courteously, others had been openly hostile and discriminatory. He and Tambo had also been aware that however well they pursued their careers, they could never become prosecutors, magistrates or judges, and would have to deal with officials whose attainments and competence were no higher than theirs but whose superior positions were maintained by white skins. He saw it as a duty not only to his people but to his profession and to justice to cry out against this discrimination. It was opposed to the basic attitude towards justice which formed part of legal training in South Africa.

The whole life of any thinking African, he claimed, drove him continuously to a conflict between his conscience on the one hand and the

law on the other. The ANC had for fifty years done everything possible to bring its demands to the attention of successive South African Governments. It had at all times sought peaceful solutions for the country's ills and problems. On the question of South Africa's new constitutional status, its members were neither monarchists nor believers in a Voortrekker type of republic, but were inspired by the idea of bringing into being a democratic republic where all South Africans would enjoy human rights without the slightest discrimination, where African and non-African would be able to live together in peace, sharing a common nationality and a common loyalty to the country.

The intention behind the strike he had called had been that it should go off peacefully. Nevertheless around the campaign an atmosphere of civil war and revolution had been created by the Government which sought "not to treat with us, but rather to present us as wild and dangerous revolutionaries intent on disorder and riot, incapable of being dealt with in any way save by mustering an overwhelming force against us. . . ." The Government had mobilised its armed forces and arrested African leaders, setting "the scene for violence by relying exclusively on violence with which to answer our people and their demands". The African people had learnt from bitter experience how demands forcefully made were always met by terror and massacre. Government violence could only do one thing and that was to breed counter-violence. "Already there are indications in this country that people, my people, Africans, are turning to deliberate acts of violence and of force against the Government, in order to persuade the Government in the only language which it shows by its behaviour it understands." By its conduct the Government demonstrated that it despised the process of representation and negotiation, and by its administration of the law it brought the law into contempt.

I do not believe, Your Worship, that this Court in inflicting penalties on me for the crimes for which I have been convicted, should be moved by the belief that penalties deter men from the course which they believe is right. . . . I am prepared to pay the penalty even though I know how bitter is the situation of an African in the prisons of this country. . . . To men, freedom in their own land is the pinnacle of their ambitions, from which nothing can turn men of conviction aside. . . . When my sentence has been completed I will still be moved, as men are always moved by their consciences . . . to take up again, as best I can, the struggle for the removal of those injustices until they are finally abolished once and for all. . . . I

have no doubt that posterity will pronounce that I was innocent and that the criminals who should have been brought before this Court are the members of the Verwoerd Government.

These defiant words expressed in a forensic setting the new determination of African nationalists to work outside of and in conflict with the established legal order to achieve their goals. They ushered in an era of sabotage, insurrectionary activity and guerilla warfare, on the one hand, met with progressive suspension of habeas corpus, largescale imprisonment and allegations of torture and brutality on the other. Mandela was sentenced to the maximum penalty allowed by the magistrate's jurisdiction, namely a total of five years imprisonment, and he was removed to Pretoria Central prison, where he was held in segregation and given mailbags to sew in his cell.

Fifteen months later Mandela was back in the dock in Pretoria, this time on trial before the Supreme Court for his life. In July 1963 a police raid on a secluded house in an outlying suburb of Johannesburg called Rivonia had led to the capture of a number of ANC leaders and supporters as well as the discovery of a series of highly incriminating documents. Some of these documents had been in Mandela's handwriting, while others had referred to him by name, and they had indicated that before his seizure by the police Mandela had played a leading role in organising sabotage and planning guerilla warfare.

When Mandela emerged from the cells below court as accused number one in what became known as the Rivonia Trial, people who had known him before as a dapper lawyer were shocked by his appearance. The wife of one of his co-accused wrote that his splendid figure seemed to have shrivelled; once noted for his elegant clothing, he now wore a khaki shirt, shorts and sandals of an African prisoner, and she wondered if fifteen months of sewing mailbags alone in his cell had reduced him from a proud and sophisticated man to the status of a 'boy' (Bernstein). Another of his co-accused, an attorney who was eventually acquitted, observed that Mandela appeared to have lost at least three stones, and was so frail as to be barely recognisable.

The leader of the prosecution team, well-known for his aggressive technique, described the trial as one of the most sensational ever held in South Africa (Yutar). The evidence established that all the accused, save for two who were found not guilty, had worked together in a clandestine manner and organised well over a hundred sabotage attacks against electricity pylons and other Government property. They had also sent abroad scores of young Africans to be trained for possible

guerilla warfare. It was proved that Mandela had been the leader of a special wing of the ANC established to spearhead armed struggle, and that during his visit abroad he had undergone a short course of military training in Algeria.

Less than three years after the collapse of the Treason Trial, the State was leading uncontroverted evidence about what it called an ANC plot to bring about a violent and hellish revolution in South Africa. Mandela who during the Treason Trial had vehemently denied any intention on the part of the ANC to use violence, was now describing the circumstances which had led him and others to change their policy and embark upon violent struggle. For most of the eleven men in the dock, the dominant issue at the trial was not whether they would be found guilty, but whether or not they would be sentenced to death. In other trials held during the period a number of ANC and PAC activists were sentenced to death and later hanged, usually for homicide committed in the course of insurrectionary engagements.

South African law enabled an accused person at the close of the prosecution case either to remain silent, or to give evidence under oath and subject to cross-examination, or else to make a statement from the dock. Mandela chose to make a statement from the dock, since, although it carried less weight in law than evidence given under oath, it permitted him to make a speech uninterrupted by questions and answers, and was consistent with his earlier refusal to acknowledge the jurisdiction of the court. He was the first witness called by the defence, and for five and a half hours he took advantage of the legal system which threatened to take away his life to address the world.

Most of what Mandela had to say was devoted to explaining the philosophy of the ANC and why after fifty years of strict adherence to non-violence it had now sponsored the formation of a body (The Spear of the Nation) dedicated to the violent overthrow of the regime.

Firstly, [he declared] we believed that as a result of Government policy, violence by the African people had become inevitable, and that unless responsible leadership was given to canalise and control the feelings of our people, there would be outbreaks of terrorism which would produce an intensity of bitterness between the races which is not produced even by war. Secondly, we felt that without violence there would be no way open to the African people to succeed in their struggle against the principle of white supremacy. All lawful modes of expressing opposition to this principle had been closed by legislation, and . . . we had either to accept a permanent

state of inferiority, or to defy the Government. . . . Only when the Government resorted to a show of force to crush opposition to its policies . . . did we decide to answer violence with violence.

Four forms of violence were possible: sabotage, guerilla warfare, terrorism and open revolution. Sabotage was agreed upon as the action which would involve the least risk to life, but preparations were also made to fight guerilla warfare should the need arise. "If war were inevitable, we wanted the fight to be conducted on terms most favourable to our people. . . . I started to make a study of the art of war and revolution and, whilst abroad, underwent a course in military training. If there was to be guerilla warfare, I wanted to be able to stand and fight with my people and to share the hazards of war with them."

The last portion of Mandela's statement was devoted to an attempt to refute the allegation that the ANC was being duped by communists who played upon imaginary grievances of the African people.

Our fight is against real and not imaginary hardships, or, to use the language of the State Prosecutor, "so-called hardships". Basically we fight against two features which are the hall-marks of African life in South Africa and which are entrenched by legislation. . . . These features are poverty and lack of dignity, and we do not need communists or so-called agitators to teach us about these things.

Our complaint is not that we are poor by comparison with people in other countries, but that we are poor by comparison with the white people in our own country and that we are prevented by legislation from altering this imbalance. . . . White supremacy implies black inferiority. Legislation designed to preserve white supremacy entrenches this notion. Menial tasks in South Africa are invariably performed by Africans. When anything has to be carried or cleaned, the white man will look round for an African to do it for him, whether the African is employed by him or not. Because of this sort of attitude, whites tend to regard Africans as a separate breed. They do not look upon them as people with families of their own . . . or realise that they have emotions . . . , that they want to carn enough money to support their families properly, to feed and clothe them and send them to school.

Above all we want equal political rights, because without them our disabilities will be permanent. I know this sounds revolutionary to the whites in this country, because the majority of voters will be Africans. This makes the white man fear democracy. But this fear cannot be allowed to stand in the way of the only solution which will guarantee racial harmony and freedom for all. . . . Political division

based on colour is entirely artificial and when it disappears so will domination of one group by another.

During my lifetime I have dedicated myself to the struggle of the African people . . . against racialism . . . I have cherished me ideal of a democratic and a free society. . . . It is an ideal which I hope to live for and achieve, but if needs be, it is an ideal for which I am prepared to die.

The trial lasted many months, and during lunch-breaks Mandela took long prison-style walks with one of his co-accused, who was an attorney, weighing up as one lawyer to another the pros and cons of whether or not the death sentence would be imposed.

The last day of the trial was noted with interest throughout the world, and the jury box in the court was crowded with diplomats from many lands. The trial had been debated in the United Nations, where there had been overwhelming support for the accused and criticism of the South African Government on the grounds that its policies constituted a denial of human rights and threat to peace in Africa. At least seven Governments, including that of the United Kingdom, were reported to have pressed the South African Government to exercise clemency. The South African authorities, on the other hand, insisted that the matter was entirely one of domestic jurisdiction and that the South African Judiciary was independent and would not be influenced by pressure either from foreign Governments or from its own. It claimed that the policy of separate development offered all groups in South Africa the opportunity for self-determination, and declared that the only threat to peace in southern Africa came from communists and others who interfered from outside and threatened the country with sabotage and terrorism.

The defence called only one witness in mitigation, the author Alan Paton. Although it was not usual for such a witness to be crossexamined, in this case the prosecutor, with the help of a police dossier, proceeded to 'unmask this gentleman', and a sharp exchange followed between the two men which raised the tension in court. In the final plea in mitigation, counsel for the defence stressed that South Africa had a tradition of treating treason and rebellion with relative leniency.

Supporters of the accused had gathered outside the court to hear the result, whilst police with guns and dogs waited in the vicinity to deal with possible demonstrators. The judge ordered the convicted accused to rise—six Africans, one Indian and one white—and briefly gave his reasons for sentence. He said that the function of the court, as

in any other country, was to enforce law and order and to enforce the laws of the state within which it functioned. The main crime of which the accused had been convicted was in essence one of high treason, but the State had decided not to charge the crime in that form. and accordingly he had decided not to impose the supreme penalty. The sentence in the case of all the accused would be one of imprisonment for life.

The accused were immediately taken to prison, where all were still being held in 1971. Mandela and six others were flown to Robben Island, historically the home of lepers and political prisoners, where along with approximately a thousand other persons convicted of security offences, they were subjected to the strict regime of maximum security prisoners. In terms of a statute passed in 1962 Mandela's name was placed on a list of persons whose statements may not be published or repeated in South Africa. To that extent he has been silenced, and his name no longer appears except in illegally produced literature, nor are his words ever publicly quoted. Later in the decade two persons close to Mandela were involved in important trials with a political background. The first was Bram Fischer, Q.C., who had been the leading counsel for the accused at the Rivonia Trial. Declaring that he could serve justice best by going underground, he changed his appearance and lived the life of an outlaw for nine months before being caught by the police. A grandson of a leading Boer statesman, son of a Judge-President, and himself a former leader of the Johannesburg Bar, Fischer was now brought as an accused person into the court where he had so frequently appeared as counsel. Eventually he too was sentenced to life imprisonment, and in 1971 he was still being held along with a number of other white persons convicted of security offences, in Pretoria Local Prison. Then in 1969 Mandela's wife, Mrs Winnie Mandela, was the principal accused in a trial of twenty-two persons charged with carrying on the activities of the illegal ANC. Both before and after her trial she was held for several months in solitary confinement and subjected to prolonged interrogation; her trial collapsed, and before she could leave the court-room she was re-detained by the police. This further detention following on her acquittal evoked considerable criticism from groups which had not previously taken a public stand on questions connected with the administration of justice in South Africa; students in various parts of the country mounted protest demonstration, and academic lawyers from a large number of universities voiced their disquiet. Eventually Mrs Mandela and most of her co-accused were put

on trial again, but the defence plea of autrefois acquit , that is, that they had already been acquitted on the charges, was successful, and they were freed.

Meanwhile outside South Africa, Mandela's former law partner Tambo was helping to build up a guerilla army on the lines which Mandela had contemplated before his capture. Tambo had once been described by Father Trevor Huddleston as a most devoted churchman whose life showed the Christian motive at its best; now he was devoting himself to the destruction of the State in which he had formerly worshipped, and attempting to overthrow by violent means the legal system through which he had once made his living. In 1967 he announced in a public statement that ANC guerillas had entered Rhodesia in alliance with guerillas from the Zimbabwe African People's Union, each marching south for the liberation of their respective countries. A short while afterwards the South African Government reported that special units of the South African police bad been sent to Rhodesia to combat the guerillas there, and other reports indicated that South African aircraft and armoured cars had proceeded to the battle zone.

The frontier wars were beginning again, but this time the combatants were equipped with modern weapons and inspired by modern ideologies. What was being fought over was no longer possession of land or cattle or water supplies, but who should rule in southern Africa. The struggle now had extensive international implications, with alliances being established between the white regimes on the one hand and the African nationalist guerillas on the other; the United Nations Organisation tended to lend its moral support to the latter. As acting-president of the ANC, Tambo frequently held up to the guerillas Mandela's example of total commitment, and issued a warning to the world that a racial war had begun in southern Africa which could escalate into an international confrontation of measureless dimensions.

Chapter Eight—
Race Conflict and the Legal System

If increasing industrialisation intensified rather than reduced compulsory segregation in South Africa, it also highlighted the degree to which race differentiation was being artificially maintained. The absorption of Africans into a common society was coupled with their exclusion from civic rights, while the integration of Africans into a market economy was accompanied by the denial to them of the job opportunities and wage rates available to the whites. The very fact that legal intervention was necessary to enforce segregation established that race differentiation was neither natural nor divinely ordained. The more the police, the Judiciary and the prisons demonstrated their physical superiority, the more they undermined their moral authority. Large-scale evasion of the law and growing participation in crime constituted one expression of African resistance to the dominant legal order; crowd revolts and clashes with the police were another. More directly, Africans campaigned through a number of organisations, some political, some industrial, for a relief of burdens and an extension of rights. Their enemy was an internal colonialism rather than an external imperialism; they struggled against local masters rather than foreign overseers; they sought political integration under the slogan of equal rights, rather than political secession under the banner of independence.

In general the white electorate was vigorously antipathetic to African claims. In few countries can the voters have been beset by such a polychrome of perils as in South Africa: a Yellow Peril at the turn of the century (Chinese labourers), a Red Peril after the end of the Second World War (communism), and a Black Peril virtually all the time (not to mention the Khaki Election during the Second World War). The Supreme Court, however, tended to be less easily alarmed than the electorate, and for many decades adopted a relatively tolerant attitude towards agitation for social change in South Africa. The judges likened themselves to the guardians of the black people, and delivered strong lectures to white farmers, policemen and others found guilty of violence to black persons. Thus in the so-called Bultfontein case, five policemen, including a station commander, were sentenced to up to

seven years imprisonment for thrashing, kicking, battering and giving electric shocks to two African suspects, causing one to die.

This benevolent judicial paternalism became increasingly difficult to maintain as social conflict became more acute. By 1960 the law began to lose much of its more tolerant, liberal aspect. Large-scale African protests were met with large-scale repression by the authorities; African movements went underground and began to plan insurrection, whilst the authorities abandoned normal procedures and counterattacked with specially trained corps of police. Neither the African revolutionaries nor the white counter-revolutionaries conducted their struggle within the formerly accepted framework of the law. Africans were accused by the whites of terrorism, while whites were accused by the Africans of torture. Although the combatants were not rigidly divided along racial lines-many of the police were black and some of the revolutionaries werewhite-the issue was whether or not white rule would survive in southern Africa.

This concluding chapter will examine some of the major changes brought about in the legal system as a result of this conflict. First, attention will be directed to the way the traditional rules of criminal procedure were modified, next consideration will be given to the changing role of the police force, and finally there will be a discussion of how the Judiciary reacted to extensions of executive and police powers.

Criminal Procedure

In the sixty years since Union the law relating to criminal procedure developed in a manner distinctly disadvantageous to the suspect or accused person and markedly beneficial to the police and prosecution. Emergency powers which formerly could be invoked only after the declaration of martial law, have now become embodied in permanent legislation, and the scales in criminal trials with political background are at present firmly tilted in favour of the authorities.

Shortly after Union a start was made on the consolidation of the vast body of Colonial statutes dealing with criminal procedure, and the consequent Criminal Procedure and Evidence Act, 1917, became the procedural code for the whole country. The Act incorporated in its provisions English concepts relating to arrest, trial, evidence and procedure, but gave an accused person perhaps rather more protection than a criminal defendant received in England. For forty years the basic sections of the Act remained unaltered, and when a new Act was passed in 1955 to consolidate all the various amendments made in the

intervening years, it differed from the old Act more in enumeration than in content. The provisions of the old Act had been temporarily suspended during periods of war and rebellion, but once the emergency situations had disappeared, the superstructures of emergency law had vanished with them and basic procedural rights had been revived. From 1962 onwards, however, a series of statutes were enacted which granted the authorities extensive powers to be used on an indefinite basis for the investigation and prosecution of widely defined security offences.

A comparison of the legal position of a suspect or accused person at the time of Union with his position in 1970 reveals how greatly his legal rights have diminished, especially if he is suspected or accused of a crime with a political background.

Arrest: Under the old law a suspect could be taken into custody only if he had been duly arrested, either on a judicial warrant or because the person effecting the arrest had reasonable grounds for suspecting that he was guilty of an offence. A suspect had to be cautioned that he was not obliged to answer any questions, and was entitled at all reasonable times to receive counsel from his legal advisers. If he had been arrested without warrant, the police were required to bring him before court as soon as possible, and never more than forty-eight hours after his detention. Anyone unlawfully arrested was entitled to use force to regain his liberty; alternatively, his family could apply for a writ of habeas corpus, or he could wait until he was released and then institute a civil action for wrongful arrest and detention.

The position today is substantially the same with regard to persons suspected of having committed common law offences, but radically different in respect of persons held under security laws. Members of the latter group may be detained not merely on the grounds that they have committed an offence, but on the grounds that they have information about the commission by others of an offence. Suspects or potential informants may then be held indefinitely in solitary confinement without access to counsel or the courts, and may be detained incommunicado until they have answered all questions to the satisfaction of the Commissioner of Police. No court of law may pronounce on the validity of such detention or order the release of such detainee.

Bail: Any accused person remanded in custody was entitled to apply to court to be released on bail, which, if granted, was not to be excessive. The question of whether or not bail should be granted was one to be decided by the Judiciary and not the Executive, the primary

consideration for the court being whether or not the accused person was likely to stand his trial.

The Attorney-General of each province is now empowered in political matters, and in cases of murder, arson, kidnapping, armed robbery and aggravated housebreaking, to order that the accused be not released on bail, and the courts then lose their jurisdiction to consider the question.

Preparatory examinations: No person could formerly be charged on indictment before a superior court unless he had first appeared at a preparatory examination before a magistrate, at which all the evidence to be used against him had been led.

Today it lies within the discretion of the Attorney-General to decide in any matter whether or not a preparatory examination should be held; the more serious the charges, the more likely is he to decide that it is in the public interest not to disclose his evidence or witnesses in advance.

Juries: Originally all criminal charges in the Supreme Court were brought before a judge and jury. The employment of juries, however, was gradually reduced, until in 1969 juries were abolished altogether. Today the judge may sit on his own, but usually he is assisted on issues of fact by two assessors, who are generally retired magistrates or members of the Bar.

The abolition of the jury system has not been regarded as a setback for civil liberties in South Africa, since juries had always been racially constituted, and only white persons could fell that they were being tried by their peers. Jurors were empanelled from lists restricted to male white voters, who on occasions were guilty of flagrant miscarriages of justice in favour of white accused. One observer noted that whereas in other countries the prejudices of jurors tended to cancel each other out, in South Africa they all ran in one direction (Pugh). The main reason for the eventual abolition of juries appears to have been the inconvenience rather than the injustice that they caused.

The trial: The basic elements of the English accusatorial system have remained unchanged in South Africa, namely, that the accused be presented with a precise charge, that all evidence against him be given viva voce and be subject to cross-examination by him or his counsel, and that he be entitled to call witnesses and give evidence if he so wishes. The two main innovations which are disadvantageous to the accused are that his trial may, if it relates to offences under the security

laws, be held in a court in any part of the country and not necessarily in the court serving the area in which the crime was allegedly committed, and secondly, that he may be joined in one indictment with other accused even although their alleged offences did not relate to the same transaction. Thus on 27th June 1967, thirty-seven South West Africans (Namibians) were charged in Pretoria with having taken part in guerilla activities more than a thousand miles away.

Confessions: No admission made by an accused person outside of court may be tendered in evidence against him at his trial unless it is proved by the prosecution to have been made freely and voluntarily. Even if made freely and voluntarily a confession to a police officer may not be admitted in evidence unless repeated before a magistrate and reduced to writing. No one may be convicted on the basis of a confession alone unless there is evidence aliunde that the offence has been committed. These basic rules relating to admissions and confessions have remained unaltered since the 1917 Act was passed, but the prosecution has been authorised to lead evidence of face discovered as a result of inadmissible statements and also to produce testimony that the accused pointed out goods and places, even though such pointing out was done in the course of making an inadmissible statement. Thus although a statement extracted under duress would not be admissible, evidence gathered as a result of or in the course of receiving that statement may be admitted. Conflicting decisions have been handed down by the courts as to whether confessions made during detention under the security laws are admissible, but even if such statements are not admissible, the fruits of such statements are.

Witnesses and the privileges against self-incrimination: The most drastic change in the character of criminal trials in South Africa has been in the status of prosecution witnesses and the pressures to which they may be subjected. Originally a recalcitrant witness could be detained on the order of the court for periods of eight days at a time. His right to refuse to answer self-incriminatory questions, however, was folly recognised. Thus an accomplice could refuse to submit to being sworn and accept instead the risk of himself being prosecuted. Should an accomplice give evidence to the satisfaction of the court, he would be entitled to an indemnity from prosecution.

The position today is that potential witnesses may now be detained indefinitely under the security laws for interrogation in solitary confinement without any right to legal advice. They may then be brought straight from the cells to the witness box, with the prospect of not being

released from police detention unless the evidence they give is satisfactory to the police. Alternatively, and even in relation to the more serious non-political trials, potential witnesses may be detained for 180 days on the warrant of the Attorney-General, and they may then be held incommunicado in police custody subject to interrogation until called to give evidence. Accomplices brought to court to testify may no longer refuse to be sworn or plead self-incrimination as an excuse for not answering questions, and any recalcitrant witness, whether an accomplice or not, may now be sentenced to a year's imprisonment. An accomplice who gives evidence to the satisfaction of the court is still entitled to an indemnity from prosecution, but the court has no power to order his release from detention by the police.

Evidence: Generally speaking the English law of evidence continues to be applied in South Africa. The rules with regard to relevance, best evidence, hearsay, similar facts, character evidence, and previous convictions are substantially unaltered, but one significant change has been brought about in respect of trials under the security laws, namely, that certain documents relating to organisations may be produced as proof of their contents.

The definition of offences and onus of proof: Formerly persons charged with attempting to subvert the State were prosecuted for treason or sedition, and in order to obtain a conviction the prosecution had to prove all the essential ingredients of the crime charged beyond a reasonable doubt. Now a series of new broadly-defined security crimes have been created by statute. Once certain minimum facts have been established by the prosecution, the accused must then disprove the existence of other crucial facts, and do so beyond reasonable doubt.

Autrefois acquit: Persons charged and acquitted under the Terrorism Act, 1967, may no longer plead such acquittal if arraigned on the same facts in terms of another law.

Minimum sentences: Minimum sentences in times of peace were formerly unknown in South African law. Now three major security laws provide that persons convicted of widely defined offences must receive sentences of at least five years imprisonment, and that the operation of such sentences may not be suspended.

The right of appeal: This is one area where criminal procedure has been altered significantly for the benefit of the accused. Originally an accused person who was tried and convicted in the Supreme Court could appeal to the Appellate Division on grounds of law only. Since 1948, however, it has been possible for an accused to appeal on grounds

of fact as well, if the trial judge or the Chief Justice grants him leave to do so. Appeals from the magistrates' courts to the Supreme Court have always been permissible as of right on grounds either of fact or of law.

Legal aid: The provision of legal aid has hardly changed in the sixty years since Union. Counsel continue to be appointed pro deo for undefended accused in capital cases—in fact they usually commence their careers by handling such cases—but otherwise there is no functioning machinery which ensures that criminal defendants in even the most serious matters receive legal representation. Legal aid in civil cases is available only to Supreme Court litigants who satisfy a stringent means test and who establish reasonable prospects of success. Such assistance is said to be granted in forma pauperis and is liberally given in matrimonial matters but less freely in other causes.

The desirability of extending legal aid more generally, especially in criminal matters, has been under active consideration by successive Governments since 1935. Voluntary legal aid bureaux were set up after that date in the main urban centres, and received subsidies from the Government. These were so small, however, that one writer observed: "During 1958 the State paid £ 5,304 in subsidising legal aid in South Africa, just over one hundredth of what has recently been set aside for research in the wine industry" (Abramowitz). In fact, the authorities appeared to become increasingly hostile to the concept of legal aid. The annual report of the Secretary for Justice for 1958 stated that legal aid in criminal trials not carrying the death sentence was redundant since "our whole legal system is designed to prevent the conviction of an innocent man, whether defended or not, and that it is the duty of judicial officers and prosecutors . . . to ensure that no miscarriages of justice occur". The report for 1965 suggested that legal aid was positively harmful since it would "undermine the administration of justice and would moreover be completely inconsistent with the general judicial and social pattern in the country". By then subsidies to voluntary legal aid bureaux had ceased, and only one was still in existence.

In 1966 the South African Defence and Aid Fund, which had raised funds for the defence of persons charged with political offences, was declared an unlawful organisation, and it subsequently became illegal for anyone to collect money to defend such persons. The banning of this organisation highlighted the absence of legal aid for criminal defendants, and discussions took place between representatives of the

Government and members of the legal profession about the establishment of a legal aid fund for indigent accused. After protracted talks, statutory authority was given in 1969 for the formation of a Legal Aid Board, which, in its second year of operation, was voted a sum of approximately £85,000.

Discussion

From the above review it will be seen that substantial inroads have been made into the procedural rights of citizens without any corresponding procedural benefits having been conferred. The major changes have related to trials with a political background, but even in regard to common law offences the prosecution has been granted extraordinary powers. Thus in 1971 a law was passed in relation to drugs which reproduced many of the main features of the Terrorism Act.

There are few jurists who would deny that in situations of emergency the authorities are entitled to suspend the ordinary legal rights of citizens. The doctrine of martial law was based on the principle that in situations of grave conflict, the Judiciary would recognise the right of the military to rule in autocratic fashion, and would suspend temporarily its own jurisdiction; the military would later receive retroactive legislative indemnity for 'illegal' actions taken by it during martial law. South Africa has a long history of proclamations of martial law, and a large amount of judicial authority on the subject. In recent decades, however, the tendency has been to use the police rather than the military to counteract actual or threatened rebellion. Legislative arrangements have been made for the police to have extraordinary and permanent powers of detention and interrogation, and for trials under the security laws to be heavily weighted in favour of the prosecution. The ordinary Judiciary is still used for all trials, but its power to ensure the maintenance of what was formerly regarded as due legal process has been greatly limited.

The manner in which the South Afiican courts have reacted to this situation will be dealt with later. At this stage it is appropriate to mention the justification which has been advanced for the abrogation of procedural rights. In a recent publication entitled South Africa and the Rule of Law , the South African Government stated that it subscribed to the rule of law, but was not prepared "to expose the peoples committed to its care to terrorist aggression because of a dogmatic insistence on the immutability of certain selective legal rules and procedures". The booklet dealt at length with the policy of separate development,

which, it claimed, was not oppressive but was on the contrary designed to permit all groups to achieve prosperity and freedom. It emphatically rejected the allegation that Government policies were so inhuman and oppressive that they drove opponents to subversion, to which the Government then reacted by enacting legislation which violated individual rights in an attempt to stamp out opposition to its policies. When intimidation and other terrorist methods were used to bring about such a reign of fear that people dared not help the authorities maintain law and order, it was necessary to "supplement the traditional rules and procedures to meet these extraordinary situations. . . . A Government does not then depart from the rule of law; it strengthens the rule of law ."

The contrary viewpoint was elegantly expressed in a public lecture to students at the University of Cape Town by a former Chief Justice of the Federation of the Rhodesias and Nyasaland, who had resigned his post in protest against security legislation being considered by the Rhodesian Parliament. He said that repressive measures at variance with tradition were introduced with distaste and a more or less instinctive feeling that they were unworthy. Always there was an assurance that they were of a temporary nature, or simply to meet an emergency. They appeared inadequate and were strengthened. Government and people became conditioned to them, and an assumption gained currency that these measures were achieving results. No one thought to ask whether other and less objectionable measures would not have been effective without prejudicing the future, for, in the long run, injustice reaped a bitter harvest. Citizens were fortunate if in a relatively short time they were not living under a totalitarian system that had been the excuse and the justification for the descent to Avernus (Tredgold).

In a sense, all modern communities are confronted with danger and the threat of annihilation, and if the courts are to play an active and enduring role in public life some limitations must be placed on the concept of emergency. Thus it can be argued that to qualify as a genuine emergency warranting the suspension of normal legality the danger apprehended should be a clear and present one; disproportionate means of counteraction should not be used, heinous methods of repression should at all times be avoided, and the emergency should be brought to an end as soon as possible. Furthermore, extraordinary powers should be recognised as such and not become ordinary by long usage, and, finally, the emergency must not have been created by the actions of the authorities themselves.

This last is perhaps the most difficult of all the criteria to apply since it involves the kind of judgements which many lawyers are reluctant to make. On the one hand the courts and the legal profession must recognise the duty of members of all communities to maintain peace and order, on the other they must also acknowledge the right of the persons to pursue justice and overcome tyranny. An oppressive regime should not be able to justify suspension of basic rights on the grounds that it is threatened with being replaced by a more just society. Nor if such a regime violates the rights of large sections of the community and provokes them to resistance, should it be able to claim that suspension of legality is a legitimate means of self-defence. In relation to South Africa, lawyers arguing within the narrow positivist tradition can point out that legislation which grants permanent powers of unrestricted control by the police is inconsistent with the concept of a special emergency; they can claim that not even an emergency situation would justify the use of torture of the kind that has been alleged against the security police; they can argue that bringing witnesses from solitary confinement to court and placing the onus of proving innocence on the accused are both at variance with the notion of a fair trial; but they cannot deal with the fundamental question of when the stage is reached that rebellion against autocratic rule may be justified.

Police

In common with many other countries, South Africa has during this century witnessed striking changes in the power and public role of the police. These developments were accomplished not so much by an increase in the size of the police force, as by an alteration in its structure, its powers and its relationship with the Government. Shortly after Union the various police forces throughout the country were unified into a single body with headquarters in Pretoria. The new South Africa Police Force (SAP) embodied two traditions, the English one of making the police force subject to the law and placing it under the ultimate control of the civil authorities, and the home-grown tradition of equipping a paramilitary force with special powers and special weapons to enforce colonial-type laws against the black population. The organisational model for the new body was in fact the strongly centralised and highly mobile Natal Police, who in addition to combating crime and enforcing master-servant relations, had fought in military battles against Africans and Boers. After the Transvaal and the Orange Free State were annexed by the British, centralised police forces were

established in these territories as well, so that after Union it remained only for the various forces in the Cape to be consolidated for uniformity to be achieved. The setting up of a Union Defence Force, the first permanent indigenous army in southern Africa since the days of Shaka's Zulu regiments, both enabled the Imperial garrison to be withdrawn and allowed the South African Police to reduce its paramilitary operations. The head of the new unified force was a serving officer entitled Commissioner of Police, and he was made subject to the control of the Cabinet through the Minister of Justice.

The growth of the police force from 1912 to 1968 is given in Table 24.

It appears from Table 24 that the personnel of the police force increased first at a slightly slower then at a greatly faster rate than did the total population. It should be remembered, though, that two other sets of organisation were established which greatly assisted the police and made a significant contribution to the total number of arrests each year, namely the provincial and municipal traffic forces, and the 'native affairs' police. The total number of persons exercising police powers therefore increased at a far greater rate than did the total population.

In its internal structure the South African Police has always reflected the stratification of the society at large. White and black policemen are issued with different uniforms and different equipment, receive different training at different Police Colleges and are remunerated at different rates. The one item all policemen have in common is a whistle. No black policeman may be placed in command of a white policeman, and all black policemen are under general instructions not to arrest white

offenders. Generally speaking, all white policemen are armed, whereas no black policemen are armed. White policemen may rise to any rank, whereas the first black lieutenants were appointed only in 1971. The whole commanding elite of the force is therefore white, and the growth of this white officer class has been particularly pronounced: between 1922 and 1968 the number of white constables increased by only about a half, whereas the number of white officers of the rank of lieutenant or above increased ten times. The growth of the force has accordingly taken the form mainly of an increase in white officers and an increase in black constables: black policemen now account for nearly half the total personnel, a larger proportion than before.

One of the main by-products of technological advance in South Africa has been the modernisation of the police force. Its communications now include telephones, the telegraph, a telex system and an extensive network of radio links; constables who formerly patrolled on foot, on cycles, on horses or on camels, now ride around in a fleet of 5,000 vehicles, which include 2,000 patrol vans, 600 riot trucks, 80 armoured cars, and 30 hearses. The force is armed with a wide variety of pistols, rifles and sten-guns, and has the use of 3 aeroplanes, 2 helicopters and 10 motor boats. In addition the security police are equipped with sophisticated electronic devices. The growth of the security police has been one of the most striking phenomena in recent South African history. Whereas formerly internal security was maintained largely by punitive expeditions of the military, now it is secured mainly by preventive operations of the police. Within the police force itself, the security branch has grown from a small, auxiliary group of detectives into a large, semi-autonomous section of police, and in the country at large they have developed from a relatively insignificant group of data-collectors into a major centre of power.

In the years immediately after Union there was more scope for Africans to agitate for fundamental change than there is today. A Deputy-Commissioner of Police in the Orange Free State wrote in 1920 that "the Native and the Coloured people are becoming better educated and organising with a view to obtaining what they consider is due and equitable to them". Ten years later, however, the annual police report mentioned that a "special branch" of the SAP had been established at headquarters to deal with "Communist and other agitators, unscrupulous persons who issued propaganda to ignorant and peaceable natives". The special branch grew slowly until the Second World War, when it co-operated with military intelligence in keeping

pro-German Afrikaner sabotage and insurrectionary movements under surveillance. Thousands of militant anti-British Afrikaners were detained during this period, including Mr B. J. Vorster, the present Prime Minister of South Africa, and Mr H. J. van den Bergh, head of all security operations in South Africa today. Amongst the many persons put on trial after special branch investigations into spying and sabotage was Dominee D. Vorster, the present Prime Minister's brother who was imprisoned for seeking to pass on to the Germans information about personnel and gun emplacements at Simonstown naval base. Both brothers were in fact Generals in the para-military Ossewabrandwag (Oxwagon Sentinel). It appears, too, that vigorous but unsuccessful attempts were made to trap Mr C. R. Swart, later Minister of Justice and then the first President of the Republic of South Africa. According to his biographer, advocate Swart's office and his person were searched, a fabricated document was planted on him and he and his contacts were continuously watched. After the war, the special branch once more directed its attention to 'Communists and other agitators', and in the 1950s it became particularly active in raiding the homes of members of the African National Congress and allied organisations, and in recommending prosecutions and banning orders against them. A central head office was created to correlate the information received from approximately a hundred members in groups scattered throughout the country, and the whole section was renamed the Security Branch (Rademeyer, Cape Times , 22nd May 1957). In 1960 the head of the Security Branch was named Director of Security and placed on a special committee, including the chief chaplain and the head of the Criminal Investigation Bureau, which maintained direct liaison with the Commissioner of Police (Annual Report).

In the l960s the power of the security police increased greatly. Shortly after Mr Vorster was made Minister of Justice in 1961, he transferred his old friend and fellow-internee, Mr van den Bergh, from the Criminal Investigation Department to head of the Security Branch. During their internment together they had built up a close personal understanding which was to stand them in good stead during their collaboration in office. While Mr Vorster sponsored legislation to suspend habeas corpus and give the police special powers of detention and interrogation, Mr van den Bergh setabout reorganising and expanding the security police. The police reports are relatively reticent about the size and activities of the security police, but one such report docs mention that during the comparatively quiet year ended 30th June

1966, special courses in internal security were given to 135 members of the security police and 125 other policemen, and special addresses on security were given to 5,106 ordinary policemen.

When Dr Verwoerd was assassinated in 1966, Mr Vorster became Prime Minister and relinquished his office as Minister of Justice. Departing from tradition, however, he continued to maintain special links with the security police. Two years later it was announced that Mr van den Bergh was to become head of the whole SAP, but shortly thereafter the public were informed that instead he would be made Security Adviser to the Prime Minister with the rank of full General. General van den Bergh was then promoted to head of a newly created body called the Bureau of State Security, popularly referred to by its initials as boss, a secret organisation attached to the Prime Minister's office and responsible for co-ordinating internal and external security. Its functions were stated to be to investigate all matters affecting the security of the State and to perform such other functions and responsibilities as were determined for it from time to time. Unlike other Departments of State, it did not issue reports on its activities, nor were its finances subject to public scrutiny, nor was it answerable to the Cabinet as a whole but only to the Prime Minister.

Shortly after the Bureau of State Security was established, the scope of the Official Secrets Act, 1956, was extended to render it a criminal offence for any person to possess without authorisation any information relating to any military, police or security matter. 'Police matter' was defined as meaning any matter relating to internal security or to the maintenance of law and order by the police, and 'security matter' was defined so as to include 'any matter dealt with by or relating to the Bureau of State Security'. At the same time the law relating to State privilege was amended so as to give the Prime Minister or his nominee power to prohibit any person from giving any oral or documentary information in court, the disclosure of which in the Prime Minister's opinion would be prejudicial to the interests of the State or public security. The combined effect of these provisions was to authorise the prevention of publication in the press or mention in court of any activity of the security police or the Bureau of State Security; thus an ex-detainee could be prevented from giving evidence of alleged torture or other irregularities.

General van den Bergh's new position led to his being described in the press as the second most powerful man in State service in South Africa, second only to Mr Vorster himself. His past utterances on

communism and liberalism had led many people to assume that his Bureau would step up surveillance of people and organisations to the left of the Government, and undoubtedly they did so both at home and abroad but in fact the first known objects of his attention appear to have been members of a right-wing group inside the governing party itself (the so-called verkramptes ). In a prosecution against a leading member of this group, he testified that the security police got their information by infiltration, tapping conversations, questioning and tailing suspects, and intercepting mail.

In the meanwhile paramilitary security units of the SAP had become involved in fighting with African guerillas in Rhodesia (Zimbabwe) and South West Africa (Namibia). Security operations were now being conducted outside as well as inside South Africa's borders and the influence of the security police was being felt in many countries.

The Judiciary and the Executive

In formal terms no changes of note have taken place in the years since Union in the relationship between the Judiciary and the Executive. Superior court judges continue to have security of tenure and may be removed for misbehaviour or incapacity only on the resolution of both Houses of Parliament, a procedure which has yet to be invoked. Short of such impeachment, the only penalty which an awkward judge need fear is that his promotion to the Judge-Presidency of a Provincial Division or to membership of the Appellate Division of the Supreme Court might be held back. Similarly, just as the constitutional independence of the Judiciary in relation to the Executive remains unaltered, so its legal subservience to the Legislature is essentially the same. The judges have always acknowledged their responsibility to pronounce rather than to make the law. Their oath of office has required them to judge according to the law, and this has obliged them to give effect to the will of Parliament as expressed in legislation, however obnoxious a particular enactment may have seemed to them. Nevertheless despite their adherence to what has been called the phonographic theory of the judicial function, they have not in fact been either obliged to or capable of acting as mere automatons. In interpreting vague words in a statute they could lean in favour of the Executive or of the citizen; in controlling the conduct of trials, they could initiate or discourage enquiries into police irregularities; in commenting on the evidence and giving reasons for judgement they had considerable scope for expressing approval or disapproval of the conduct of witnesses, and

in passing sentence they had the opportunity, almost invariably taken, of delivering homilies on the behaviour of the accused.

Generally the South African judges have had a reputation for tempering harsh legislation, moderating inequitable Executive action, and restraining irregular police conduct. In the recent period of racial stress, however, they have come under strong criticism for aligning themselves too closely with the Executive and failing to show appropriate vigilance in relation to police behaviour.

No simple yardstick exists for measuring the Executive-mindedness of a Judiciary. A mere totalling up of decisions given for and against the Executive at any period would not be very revealing, because often the outcome of a case has little relationship to the point of principle decided by it, and in any event one leading decision can have more significance than a host of minor ones. In the absence of any express statement by the judges indicating a conscious change in policy, the most that can usefully be attempted is to seek out predominant trends at particular periods, as indicated by the line of reasoning followed in cases dealing with relationships between the citizen and the Executive.

Shortly after his elevation to the Cape Supreme Court in 1876, Chief Justice Henry de Villiers ordered the release of two Griqua leaders who were being held as prisoners of war by the Cape authorities. Holding that if they were British subjects they should be charged in court with rebellion, and if they were not, they should be set free since war had not been declared against their people, the Chief Justice declared: "The disturbed state of the country ought not in my opinion to influence the court, for its first and most sacred duty is to administer justice to those who seek it and not to preserve the peace of the country." In the Transvaal, Chief Justice Kotze in a similar matter emphasised that the court was bound to do equal justice to every individual within its jurisdiction, without regard to colour or degree, except where in a particular instance the law provided to the contrary. The foundation of their arguments was the common law principle, recognised both in England and in Holland, that everyperson was entitled to his freedom except in so far as the law specifically provided to the contrary. Should an individual's liberty or rights of personality be interfered with by the Executive in a manner not clearly sanctioned by law, then no matter who the person was or what the allegations against him were, he was entitled to an appropriate remedy from the courts. In the case of a person wrongfully detained, the judges would order that he be brought to court and released unless the detaining

authorities could establish some legal warrant for continuing to hold him. The court's power in this regard was limited by only two sets of circumstances: a declaration of martial law, or the enactment of a statute which in clear language restricted the court's jurisdiction.

These points were emphasised by Sir James Rose-Innes shortly before and shortly after he became Chief Justice of South Africa in 1914. In one judgement he drew attention to the tendency of legislation to give departmental officials final power to affect the rights of the public to the exclusion of the courts. "Such legislation, unless carefully safeguarded, may endanger private rights, and become a serious menace to the liberty of the subject. These are considerations to which the courts do well to draw attention", he said. In a second case he stigmatised as unlawful and injurious the actions of a prison governor who subjected an unconvicted strike leader and suspected dynamitard to a specially rigorous regime. He described the governor's conduct as a wrongful and intentional interference with those absolute rights relating to personality to which every man is entitled. His colleague, Solomon, J.A., declared that it would be a most dangerous doctrine to lay down that the police authorities are entitled to infringe upon the personal rights of liberty of any individual, merely because in their opinion it is desirable to do so in the interests of public safety. In a third matter Innes stressed that one of the features of the English constitution reproduced in self-governing dominions was the absolute supremacy of the law. "Every subject, high or low", he observed, "is amenable to the law, but none can be punished save by a properly constituted legal tribunal. If any man's rights of personal liberty or property are threatened, the courts are open for his protection. And behind the courts is ranged the full power of the state to esure enforcement of their decrees." Although he never failed to give effect to a law merely because he found its terms to be objectionable, he did not hesitate to criticise legislation which he felt unduly restricted the rights of the citizen and fettered the jurisdiction of the courts. Furthermore, he insisted that statutes which interfered with the liberty of the subject should be strictly construed in favour of the individual rather than the Executive. It should be noted that these observations were not made in respect of social welfare legislation, but with regard to racially discriminatory legislation and Executive actions undertaken during times of political stress.

In the 1930s the Appeal Court appeared to emphasise its subservience to the Legislature rather than its independence of the Executive. One

Judge of Appeal who later became Chief Justice stated in as many words that Parliament could make any encroachment it liked upon the life, liberty or property of the individual and the courts were bound to give effect to it (Stratford). As a statement of constitutional doctrine there was nothing exceptional in this formulation, but it did indicate a willingness rather than a reluctance to give effect to restrictive measures. It was at this time that a prominent African leader expressed his disappointment at what he considered to be a decline in the quality of justice being administered to Africans. "Thirty years ago", he wrote, "we used to regard British justice in the Cape . . . as something infallible and above suspicion. But of late we have had to revise our catechism with regard to South African or Afrikaner justice" (Jabavu). His main complaints were about the functioning of the inferior courts, but he also quoted from an Appeal Court judgement which decided a test case against an African litigant by reading something into an Act which Parliament had failed to put in itself. The 1930s were not, however, entirely devoid of liberal judicial decisions; in one notable judgement the Appeal Court upheld the right of freedom of speech when it allowed an appeal against conviction and imprisonment of two communists who had been charged with insulting the King. One of the judges wrote: "We have travelled a long way on the road of freedom of speech and of political criticism since the days when it was a crime laesae majestatis to enter a house of ill-fame or a latrine with money in one's possession or a ring on one's finger, bearing the image of the Princeps." He added that if the language used was unduly strong, it should be remembered that Africans had no voice in Parliament or the Government and could only protest against grievances.

During the 1940s the major public law cases related to the situation created by South Africa's entry into the war against Nazi Germany. Some of the reported judgements indicated a tendency on the part of the courts to lean in favour of the Executive during this period, and many Afrikaners subsequently complained that judgements had been influenced by wartime hysteria. Notable amongst these critics were Dr Verwoerd, who lost a libel action against a publication which had accused him of making the newspaper which he edited into a tool of the Nazis, and Mr B. J. Vorster, who was interned for two years and whose brother was imprisoned for collecting important military and naval intelligence about Simonstown naval base. An Afrikaner jurist writing at the time observed that the phrase 'martial law' evoked ominous thoughts in the minds of South Africans, who associated it

with war or rebellion on the one hand, and military rule on the other; it led to drastic curtailment of personal liberties and an unwillingness on the part of the courts to take a stand against even the most blatantly unlawful actions of the Executive. Precedent from the time of the Anglo-Boer War and the 1914 Afrikaner rebellion, he wrote, established that once war was raging the courts had indeed hardly any jurisdiction to interfere with the actions of the military, but this did not justify a recent decision which held that an order of internment issued without statutory authority by the Minister of Justice be regarded as an act of the military (Conradie).

The extension in the 1950s of Ministerial powers coincided with the more rigid enforcement then of segregation and led to a great increase in the number of court actions instituted to restrain the Government. In the well-known Votes cases the Appeal Court emphasised the independence of the Judiciary, and invoked a limited testing right to invalidate legislation which purported by a simple majority to take coloured voters in the Cape off the common electoral roll. It expressly overruled a dictum delivered by the Court in 1937 to the effect that Parliament was able to ignore the entrenched clauses in the South Africa Act, which stipulated that voting rights in the Cape could be diminished on grounds of race only by a two-thirds majority of both Houses of Parliament in a joint sitting. One judge stated that the purpose of the entrenched clauses was to place a check on legislative power in favour of the individual, and likened the argument that once Britain abdicated from South Africa the entrenched clauses lost their validity to the proposition that as soon as the policeman was round the corner there was no law (Van den Heever).

During this period freedom of speech and of assembly were frequently asserted by the courts, and it was held by a narrow majority that the Crown prerogative did not entitle the Minister of the Interior to revoke a passport validly issued. Again and again Chief Justice Centlivres stressed the great care with which the courts scrutinised statutes granting the Executive power to invade the liberties of the subject, though he added that once it was clear that the Legislature intended to grant 'autocratic powers' to the Executive, the courts had to give effect to the will of the Legislature. The Appeal Court also in two major decisions reaffirmed the rule of natural justice that persons should not be deprived of rights or made subject to restrictions without first being granted an opportunity to be heard; Parliament could always exclude such right of audience, but unless it did so in clear language,

statutes should be interpreted on the assumption that such right was meant to be operative.

Towards the end of the 1950s and in the early 1960s the courts were approached on a number of occasions to grant writs of habeas corpus against farmers, policemen and prison officials, and in almost every instance they acceded promptly to these requests. Thus Africans arrested on the Rand under the pass laws and sent without trial to work for farmers in the Eastern Transvaal, where they were held in bad conditions against their will, were released on court orders after their relatives had applied for writs of habeas corpus. In 1960 speedy action on the part of lawyers and judges secured the release of several persons detained under Emergency Regulations which had been adopted but not yet promulgated. In Johannesburg a judge granted a rule nisi against the police at 7 a.m. returnable at 10 a.m. on the same day, and later in the day granted a further fifteen similar orders; in Durban a judge granted an order at 2.45 p.m. returnable at 4.30 p.m. that afternoon; in all these matters time was of the essence, since the regulations which would have authorised the detention were in fact promulgated on the next day.

In the following year considerable international interest was aroused by a habeas corpus application brought in the eastern Cape. The proceedings were based on a note smuggled out of a Transkei lock-up stating that a young African political refugee in what was then the British Protectorate of Basutoland had been kidnapped and brought by members of the South African Police to South Africa. The judge of first instance surprised observers by delaying his decision for two months, after which, in a 72 page judgement subsequently referred to as a 'curiosity of legal literature', he rejected the application. The matter went on appeal to a full Bench of three judges, who with 'unprecedented celerity' overruled their colleague's decision and granted a rule calling upon the police to show cause why they should not produce the detainee in court and release him. Dealing with the fact that the court had only scanty hearsay evidence on which to entertain the application, the judgement concurred in by the full Bench stated: ". . . the Supreme Court is the protector of the rights of the individual citizen, and it will protect him against unlawful action by the executive in all its branches. . . . From a practical point of view . . . I do not think the Court should be astute to find objections at this stage to the relief claimed. The Court should rather be astute to find a means of exercising its function and jurisdiction in the protection of a citizen from a potential inroad on his liberty". The detainee was eventually released, and

after suing for damages for wrongful detention was paid an undisclosed sum in an out of court settlement. A full report on the case published by the International Commission of Jurists in Geneva criticised the conduct of the South African authorities, but went out of its way to praise what it termed a vigilant and independent Bench and a courageous legal profession in South Africa.

These various decisions, together with the acquittal in 1961 of the accused in the long drawn out Treason Trial, earned for the South African Judiciary a high reputation amongst lawyers both inside and outside South Africa. From 1963 onwards, however, a trend of judicial decisions began which reversed the flow of praise, and led to criticism being levelled at the South African Judiciary by the very people who had been its most enthusiastic erstwhile supporters; conversely, the South African Government, which had formerly been openly critical of the Judiciary, and especially of the Appeal Court, now began actively to extol its virtues. The main complaint of the critics was that in interpreting statutes which suspended habeas corpus and drastically curtailed the rights of individuals, the courts leaned unduly in favour of the security police. Some of the criticism was broadened into a general charge that the Judiciary showed an attitude of heartlessness towards black South Africans incompatible with the due administration of justice.

The background to the apparent shift in stance of the Judiciary was the outbreak of sabotage and the enactment of special security laws giving the police powers to detain suspects incommunicado for interrogation. The crucial provision which had to be construed by the courts was the so-called 'ninety-day law', which empowered the police to detain for interrogation in solitary confinement persons suspected of having information about the commission of security offences. The law authorised the police to detain such suspects 'from time to time', with the proviso that 'no such person shall be detained for more than ninety days on any particular occasion'. The first question that arose for judicial determination related to the meaning of this ninety-day proviso, and whether it was an effective bar to detention for consecutive periods of ninety days. The Natal Court held that a re-detention after ninety days had elapsed could be justified only on the basis that new grounds for detention had arisen, otherwise the proviso would be illusory, but the Appeal Court overruled this decision and held that the police could re-detain a suspect merely on the basis that fresh information had come to light supporting the original grounds of detention.

The ninety-day limitation thereafter became an easily by-passed legal formality, and many of the thousand persons held under the law in the next two years were in fact re-detained after being released for a matter of moments.

The second question which the courts had to decide was whether a detainee was entitled as of right to have an ordinary supply of reading matter and writing materials with him while in confinement, or whether the police could grant or withhold such matter at their discretion. The law explicitly stated that detainees might be held by the police in isolation with no access to the courts or to counsel, but otherwise it was silent on the conditions of detention. The issue before the courts was whether a specific police power to withhold the normal amenities granted as of right to awaiting-trial prisoners should be inferred from the general power to hold suspects for interrogation; it was common cause that the detainee could not have any materials which might enable him to receive communication from persons outside. The matter first arose in the Cape court, which upheld a claim made on behalf of a detainee that he be allowed to receive as of right a reasonable supply of reading matter and writing materials. The court followed a 1912 precedent in which Sir James Rose-Innes laid down that individuals were at all times entitled to all the normal rights of personality save those which had been expressly taken away by statute; since the object of the ninety-day law was not to punish the detainee but merely to place him in custody for purposes of questioning, there was no need to read into it an implied provision that his conditions could be made more rigrous than those of an awaiting-trial prisoner. The court referred further to the famous dissenting judgement of Lord Atkin in Liversidge v. Anderson and added as a gloss of its own that it was precisely when public passions were running high that the courts should be most ready to protect the rights of individuals. This line of reasoning was rejected by the Appeal Court, which held unanimously that "it was not the intention of Parliament that detainees should as of right be permitted to relieve the tedium of their detention with reading matter or writing materials". On the question of construing the section, the court said it would adopt neither a strict interpretation in favour of the subject, nor a strained interpretation in favour of the Executive, but would attempt to find the intention of Parliament from all the provisions of the section in the light of the background against which it was enacted. In this regard the court went further than counsel for the police who in the course of argument disclaimed the contention

that the purpose of holding the detainee in isolation was to break his resistance to interrogation; the court asked whether "in the furtherance of the object of inducing the detainee to speak, the continued detention should be as effective as possible, subject only to considerations of humanity as accepted in a civilised country?"; and by its conclusion answered the question in the affirmative. In rejecting the argument that the detainee should retain all personal rights save those expressly taken away by Parliament, the court asked hypothetically whether this meant that a person who in happier days habitually enjoyed champagne and cigars should as of right have champagne and cigars while in detention. Although no evidence was led on the subject at the time, the writer of this book, who was the detainee concerned, is now in a position to reveal that in happier days he had in fact rarely drunk champagne and had altogether given up smoking, but had continued habitually to read law reports.

This judgement of the Appeal Court was extensively criticised. Former Judge of Appeal O. D. Schreiner regretted the court's reliance on the majority judgement in Liversidge v. Anderson and observed that the maxim salus populi suprema lex had no doubt a proper role to play as a substantive defence in certain cases but was not a rule of interpretation. A professor of law who had referred to the judgement of the court of first instance in support of his contention that the South African Judiciary was vigilant in maintaining common law rights in the face of an encroaching Executive, was compelled to add a footnote that the judgement had been reversed on appeal "for reasons that are not entirely convincing" (Beinart). Other writers stated that they could not see how holding a detainee in prolonged detention without any means of keeping himself occupied could be regarded as consistent with considerations of humanity. Finally, a Judge of Appeal who had not sat in this particular matter, argued strongly in a third test case heard on the ambit of the ninety-day law that the whole basis of the Appeal Court's reasoning had been wrong.

The issue in the third case was whether a judge had the power to order the production in court of a detainee, to substantiate by means of viva voce evidence allegations he had made in a smuggled note that he had been subjected to ill-treatment by the security police. A single judge and then a full Bench of three judges in the Transvaal rejected an application by the detainee's wife, who sought an order protecting her husband from further irregular treatment, that the detainee be brought to court to give the necessary evidence. In the Appellate Division, the

Appeal Court divided three to two in favour of upholding the decisions a quo and rejecting the application. One of the dissenting judges argued that in construing the object of the ninety-day law, it was far more reasonable to suppose that Parliament intended the detainee to be kept in isolation merely to prevent him from communicating with other possible conspirators, than to infer that Parliament intended a species of pressure to be brought to bear upon him to induce him to speak; accordingly, it was his view that the decision in the earlier case on reading matter had been based on faulty reasoning. In the present case, neither he nor the second dissenting judge could see how the purpose of the section could be defeated by the detainee being brought before court, where proper safeguards could be maintained to protect the interests of the police. Both the dissenting judges emphasised that a case of this kind should not be considered in a narrow or legalistic fashion. The majority of the court held otherwise, however, and stated that the object of the section would be frustrated if the detainee were to be brought before court; if he had in fact been ill-treated in the way he alleged, then his remedy lay in a claim for damages after his release.

The judgements in these three cases formed the foundation of a strongly argued critique of the South African Judiciary which appeared in the South African Law Journal under the heading 'The Permanence of the Temporary' (Matthews and Albino, 1966). The joint authors were respectively a professor of law and a professor of psychology, and they considered the implications of these decisions against the background of studies conducted in various parts of the world into the effects on prisoners of solitary confinement and stimulus deprivation. Their charge was not that the South African judges lacked integrity but that they failed to grasp imaginatively the implications of solitary confinement and the Western ideals of individual freedom. "In recent years", they wrote, "the courts have interpreted laws which have cried out for one of those resounding defences of individual liberty in the dignified and majestic language in which judges sometimes speak, but the opportunity has been passed by." In carrying out a general programme of laws which many regarded as oppressive, the courts had not shown themselves to be reluctant or even faintly troubled. Security laws were justified as a temporary measure to deal with an emergency, but the situation which arose was that of a permanent emergency with signs not of respite but of vanishing liberty and permanent insecurity.

Some months later Chief Justice Steyn rose vigorously to the defence

of the Judiciary. The occasion was an after-dinner speech delivered to law teachers and students, and he directed his attention to what he called attacks made on the courts of South Africa, more especially on the Appeal Court, both in print and out of print, in regard to their decisions on the so-called ninety-day provision. He objected to the disparaging tone of the critics and the intemperate, derogatory language used, and reminded his audience of the factual circumstances in relation to which the provision had been passed and in the light of which it had to be interpreted. These facts had been established in the course of a number of trials beyond any shadow of a doubt, and had become so notorious as not to need repeating. Whether or not the ninety-day law was the most effective method of dealing with this situation was for Parliament and not for the courts to decide. The matter has occasioned a political storm and had been widely canvassed in Parliament and elsewhere. "In effect we have now been blamed, on the ground inter alia of the alleged effects of such interrogation-incidentally not in evidence before us-for not entering the political arena and taking a strong stand on a particular side, after the law had been passed. . . . It is not our function to write an indignant codicil to the will of Parliament. If in the eyes of some there is any blame in avoiding such a course, I have no doubt that our judges, one and all of them, will not thereby be pressed into unwise participation before or after the event in a political conflict" (1967).

The Chief Justice's hopes that the judges would continue to enforce the will of Parliament without revealing any flickers of independent judicial conscience, were not to be realised. In fact judges in the past had frequently commented upon the inequitable consequences of laws they had been obliged to enforce, and on occasion their recommendations had been acted upon by Parliament. Judicial criticisms were aimed particularly at laws which directly affected the administration of justice, such as the provision that confessions to a policeman were not to be admissible in evidence unless subsequently reduced to writing before a magistrate, or the provision that whipping be compulsory for persons convicted of certain scheduled offences. Receiving stolen property was one of these offences, and Chief Justice Centlivres observed in 1956 that compulsory whipping for receivers was not necessarily in the best interests of the administration of justice, the dignity of which would be better maintained if the courts had their discretion restored. Nine years later Parliament in fact restored the judicial discretion. More generally, Centlivres declared in another matter that the mere fact

that a judge held strong views on what he considered to be an evil in society did not disqualify him from sitting in a case in which some of those evils were brought to light; his duty was to administer the law as it existed, "but he may in administering it express his strong disapproval of it" (1951). Judges had also been openly critical of a recently passed censorship law. One judge had in a literary magazine condemned the law before it was finally enacted, while another, who had been compelled to apply it, stated in a judgement that its terms were so wide that much harm could be done to the cause of literature without any corresponding good being done to the cause of morals. When this judgement was eventually taken on appeal, the Appeal Court judges divided three to two in favour of upholding the ban. The majority of the court, which included Dr Steyn, found that a number of passages in the book in question were objectionable; one of the minority judges, however, made a point of quoting in full all the salacious passages which the Chief Justice had delicately paraphrased, and went on to declare himself as follows: "When a court of law is called upon to decide whether liberty should be repressed . . . it should be anxious to steer a course as close to the preservation of liberty as possible. . . . In its approach to the law it should assume that Parliament, itself a product of political liberty, in every case intends liberty to be repressed only to such extent as it in clear terms declares."

Yet by the time Dr Steyn made his after-dinner speech in defence of the Judiciary, none of the judges had expressed any dismay at the manner in which the administration of justice was being affected by the operation of security laws. The holding of accused persons and witnesses for months and even years in solitary confinement prior to their being brought to court led to no expressions of judicial concern, nor was there any vigorous judicial reaction to allegations by State witnesses that they had been subjected by the police to violence and sleep deprivation. There were some rulings against the police, but they were so cautiously expressed that they did little to protect detainees in general from irregular treatment. The security police, accustomed to losing most of their cases in the 1950s became used to winning nearly all their cases in the 1960s. Emboldened by the favourable climate they encountered in court, they went so far as to disobey a habeas corpus writ served upon them ordering them to produce in a court a detainee (Heymann) taken into custody before an empowering law had been fully promulgated. By moving the detainee from one lock-up to another, they were able to avoid receipt of the writ by his jailor until the

law authorising the detention had been duly promulgated. The judge hearing the matter criticised the action of the police as possibly being in contempt of court, but beyond awarding costs against the police, took the matter no further, and the detainee was not brought before him or released. In another case the security police detained in court twenty-two Africans who had just been acquitted after a lengthy trial.

Eventually legislation was passed which made it possible for the security police to continue to use the courts for the punishment of offenders but to disregard the courts for all other purposes (the so-called 'Boss' law, 1969). The Prime Minister or his nominee was empowered to prevent the courts from considering any matter which in his opinion affected the interests of the State or public security. This provision for excluding the courts' jurisdiction was consistent with a general increase in the power of the police and a decline in the authority of the courts in relation to security matters, but was so sweeping in its effect that it prompted hitherto silent members of the Judiciary into outspoken criticism. One judge declared at a public gathering that he was worried about the dignity, independence, and esteem of the Judiciary in the existing South African scheme of things. He emphasised that the independence of the Judiciary was the cornerstone of the administration of justice, and said that the Government had neither consulted with the Judiciary on the proposed legislation nor informed it of its intentions (Marais). Other judges also made public statements expressing serious misgivings about the legislation. Eventually after the law was passed a Judge of Appeal was appointed to act as a one-man Commission of Enquiry to investigate the machinery for dealing with threats to the security of the State and to consider whether the new law should be amended. Although the Commission's report is apparently not going to be published, the Commissioner has stated in a newspaper interview that he took into account the opinion of members of the Judiciary and legal profession in recommending alterations to the new law (Sunday Times , 25th April 1971).

Judging the Judges

A feature of the judges who, in conflict with the Chief Justice's advice, entered the political arena and took a stand in defence of the court's jurisdiction, was that all of them were Afrikaners who during the Second World War had been active in the legal defence of pro-German saboteurs and spies. The first of the judges to speak out had in fact himself been interned during the war (Marais), and although

neither he nor his colleagues had come from liberal backgrounds, they presented an appearance of much greater independent-mindedness than did their English-speaking colleagues on the Bench. There was some parallel to this in the Appeal Court where some of the most important pro-Executive judgements were delivered by English-speaking judges (Ogilvie-Thompson, Holmes), whereas the strongest dissentient judgements in favour of liberty were handed down by an Afrikaner judge who during the war had defended pro-Nazi rebels (Rumpff). Thus the policy in the 1950s of promoting Afrikaners to the Bench, most of whom were known to be generally sympathetic to the Government, did change the character of the South African Judiciary, but not in as total a fashion as some people had anticipated.

The accession to power of an Afrikaner nationalist Government in 1948 led to a rapid increase in Afrikaner influence in the South African legal system. British styles and procedures continued to be observed, but important posts were filled largely by Afrikaans-speaking persons, and the use of the Afrikaans language becaame more widespread. At the time of Union, Afrikaners who entered the legal profession became anglicised in speech and manner. The first Afrikaans-medium law faculty was established in 1920, the first superior court judgement in Afrikaans was delivered in 1933, the first Afrikaans law journal was published in 1937 and the first Afrikaans legal textbook appeared only in 1946. In 1922 only a quarter of the judges had Afrikaans names, and many of these came from thoroughly anglicised families, whereas in 1969 nearly two-thirds of the judges had Afrikaans names. The promotion of Afrikaners to the Bench was defended as a means of achieving linguistic parity between English and Afrikaans-speakers, but one of the consequences was to hold back the advancement of men whose attitudes to race were relatively liberal and to increase the proportion of judges who were generally sympathetic to the policies of the Government. Leading members of the Bar, especially those known for their liberal or left-wing opinions, were passed over in favour of Afrikaners known to be nationalists. Thus Dr L. C. Steyn, a Government law adviser, was appointed to the Transvaal Bench in 1951; the Bar protested vigorously and even attempted to boycott his court, but in 1955 he was appointed to the Appeal Court, and in 1959 he was made Chief Justice. He retired in 1971, having been Chief Justice for longer than anyone except Innes. The leader of the Government team in the Voters' cases of the early 1950s was appointed to the Cape Bench in 1955, to the Appeal Court in 1958, and then made Judge-President of

the Cape in 1959. Unlike the Chief Justice, however, he did not regard race segregation in court as reasonable, and with the support of his colleagues managed to keep the Cape Supreme Court free of apartheid notices (Beyers). Thus changes in the composition of the Judiciary tended to make it more Executive-minded and to bring judicial attitudes to race more in line with official attitudes to race, but the process was by no means a complete one. For a number of years very few English-speaking judges were appointed to the Bench, and most of those who were appointed, or whose judicial careers were advanced, tended to have reputations for being Execudve-minded. One of this latter group is Judge Ogilvie-Thompson, who in 1971 replaced Dr Steyn as Chief Justice; both he and Dr Steyn were generally regarded by lawyers as extremely able jurists who presided over their courts with a courtesy and dignity marred in the eyes of their critics by a tendency to lean in favour of the Executive. Some of the more recent appointments, however, have gone to men known to have relatively liberal attitudes, so that it would be dangerous to predict in an unqualified manner that the trend away from the comparatively liberal judicial era of the 1950s will continue.

The above-mentioned changes in the composition of the Judiciary together with the tendency of most of the judges, especially in the Appeal Court, to lean more towards the Executive than their predecessors had done, lost for the South African judges some of the prestige they had formerly enjoyed. Whereas until the beginning of the 1960s the judges had achieved an international reputation through the quality and character of their judgements, now the Department of Information was called upon to expound their virtues. Thus one publication declared that the legal traditions of South Africa were among the highest in the world, that law-abiding South Africans of all races did not fear the law but accorded it deep respect, and that the country's judicial officers were universally held in high esteem (Panorama, February 1968). Another claimed that even if the laws in South Africa were criticised, the judicial system and officers of the court were held in the highest esteem throughout the world (Rule of Law ). The Minister of Justice declared that Chief Justice Steyn was a legal colossus who ranked among the most distinguished legal men in the world. He would be remembered after his retirement for his contribution towards restoring, Roman-Dutch law to its rightful place and his magnificent contribution to the use of Afrikaans in the country's legal development. "During his term of office as Chief Justice, our country had its share of turbulence,

and he too was made a target for criticism. However, he would not be deviated and succeeded amicably in keeping the courts and its judges out of the political arena" (Pelser, Rand Daily Mail , 4th December 1970).

Reference to contemporary legal publications, however, indicates that the esteem claimed for the South African Judiciary was not in fact being universally acknowledged. A contributor to the International Comparative Law Quarterly stated that the changed composition of the South African Judiciary disposed it to be more inward-looking, more impervious to outside influences and more in accord with current legislative policy (Millner, 1962). Similarly, the International Commission of Jurists which had formerly gone out of its way to exempt the judges in South Africa from strictures, now issued a booklet entitled The Erosion of the Rule of Law in South Africa , in which it stated that the overall impression gained from recently decided cases was of a Judiciary as 'Establishment-minded' as the Executive, and prepared to adopt an interpretation that would facilitate the Executive's task rather than defend the liberty of the subject and uphold the Rule of Law. U.S. Senator Robert Kennedy, in an address to the Johannesburg Bar, stated that no Bar anywhere in the world held a higher position, but he hinted that to maintain that position the Bench and Bar would have to remain alert and active even during periods of social emergency. Speaking of American experience, he said that "in times of stress and hysteria we have temporarily given in to the cries of those who have claimed that suppression can bring security. But each time the Bench and the Bar have recalled us to the Constitution" (1966 SALJ).

Finally, inside South Africa itself criticism of judgements was being extended and developed into criticism of the judges themselves. Whereas previously legal writers had on occasion alluded in discreet and at times Aesopian language to the fact that when appointments were made to the Bench, individuals had been preferred or passed over because they happened to be Englishmen or Afrikaners, liberals or segregationists, now a law professor for the first time raised as a matter for legal discussion the fact that all the judges in South Africa were white. In an extensively reported inaugural lecture, the professor observed that comment or criticism which was commonplace in other countries was often avant-garde, daring and even dangerous in South Africa, and this was particularly true of any discussion of the judicial process. Nevertheless, he continued, absence of criticism did not promote infallibility, it merely encouraged belief in infallibility, with all

its attendant dangers. South African judges had been frank about their law-making function in relation to the common law, but still adhered to the myth of judicial sterility in relation to the interpretation of statutes. In practice the judges were continuously filling in gaps in legislation in a manner coloured by their unconscious assumptions. Being drawn from one small section of the population—the white group—they tended to share a whole range of inarticulate but influential premises with members of the Executive, who were drawn from the same small group. In his view, the positivist legal tradition in South Africa helped to conceal rather than reveal these premises, and the distinction which it drew between law and morality enabled the Judiciary to apply the harshest laws with an easy conscience. He claimed that academics contributed to this situation by their failure to deal with fundamental legal theory and their unwillingness to examine the social functions of law. In Germany after the First World War, he said, positivism was the only legal philosophy acceptable to the legal profession. This stance, with its servile obedience to the will of the sovereign and strict distinction between law and morals, was exploited by Hitler and resulted in the debasement of the German legal system (Dugard, 1971).

Many judges appear to have discussed this address; a number publicly rejected its main thesis, while others remained silent. A colleague of the professor's, however, gave strong support for what he called the need for drastic de-mystification of the law in South Africa. In all civilised countries, he maintained, the investigation of the subtle undercurrents which went into the thoughts and mental make-up of a judge had been a legitimate field of investigation and research, and only in South Africa had there been a tendency to envelop the Bench with a halo of mystery and untouchability (Van Niekerk).

How to judge the judges is never an easy matter. Their conduct can be evaluated in terms of standards set by their predecessors or of goals which they proclaim for themselves, or of norms almost universally accepted in principle, such as the United Nations Declaration of Human Rights. Judicial behaviour can also be looked at from a procedural point of view, in which case the question might be asked whether it conforms with generally acceptable notions of fair practice, or else it can be examined in terms of its actual effects, in which case the query might be whether or not it promotes manifest injustice. If the judges are viewed merely as products of their society, they will be no more entitled to praise or immune from blame than any other member of their community; on the other hand, should a special legal conscience be

attributed to them, then higher standards of conduct might be demanded of them. A positivist might ask simply whether the judges acted in accordance with the law as set out at the time in the decrees of dominant political authority, whereas a supporter of natural law might ask further whether these enactments contained at least that minimum core of morality which in their view distinguishes rules of law from tyrannical edicts. Both might say that just as special heinousness nullifies the excuse of a soldier that he was merely obeying orders, so gross inhumanity might deprive a judicial officer of the plea that he was merely carrying out the law. Much, of course, would depend on the forum in which the evaluation was being carried out, since the criteria adopted in the pages of a law journal might differ radically from those applied by a post-revolutionary domestic court, or those relied upon by an international legal tribunal.

In any society where courts exist they tend to play a significant role in the system of domination. They normally claim a monopoly of the right to sanction the use of force, and they speak in the name of the sovereign, usually on behalf of the community. Yet just as no individual can be judged simply in terms of his own opinion of his conduct, so no legal system can be evaluated simply in terms of its own traditions and concepts. It may be useful as a starting-off point to consider whether or not the Judiciary is departing from its own well-established norms, and then to examine the norms themselves, both in relation to internal consistency and in respect of international standards. A test frequently adopted in this connection is whether or not a legal system operates according to the Rule of Law, a concept easier to extol than to define. Yet to stop there would carry the risk of excluding matters of substance because of preoccupation with matters of form. The often asked question of whether the end can justify the means should perhaps be turned around to ask whether the means can justify the end. The actual effects of the legal system and the interests promoted or suppressed by it should be as much a matter for enquiry as its formal elegance or procedural equity. The enhancement of techniques to serve ends which are unjust promotes rather than reduces injustice. In this connection it should be noted that the courts give a sense of orderliness and regularity to domination. The measured language of the law and the decorum of the court-room help to calm persons who face punishment, while forensic combat diverts and absorbs hostility. The hope of an acquittal or that the maximum sentence will not be imposed gives individual defendants an alternative to confrontation and encourages

compliant behaviour. In general terms, by placing a limitation on the powers of the rulers, the courts facilitate the accommodation of the dominated to the dominators, and thereby make rule more secure. What might otherwise be seen as a large question of social relationships gets converted into a series of small questions about individual guilt according to narrowly defined criteria.

Bearing some of these considerations in mind, it is suggested that a survey of the role and functioning of the Judiciary in racially divided South Africa makes it easier to deny to the judges any claim to special virtue than it does to impute to them any liability for special fault. The main criticism which could perhaps be advanced in relation to the conduct of most of the judges is not so much that they help to enforce race discrimination because they are corrupt, cowed or consciously biased, but that they do so willingly; not that they lack courtesy or decorum, but that they use polite and elegant language to lend dignity to laws which impose segregation and harshly penalise radical opponents of a system of government almost universally condemned. Instead of investing their office with the prestige associated with the pursuit of justice, they allow the prestige associated with their office to be used for the pursuit of injustice.

During such time as the Judiciary played some role in tempering or delaying the impact of differential legislation, it was possible for observers to concentrate on those aspects of judicial activity that stood apart from the rest of governmental action, and possibly to underplay the extent to which the Judiciary operated as a central part of the State machine. Decisions against the Government, such as the judgements in the Cape Voters cases and the acquittals in some of the many trials held under the security laws, tended to emphasise the extent to which the Judiciary was independent of the Executive, and to divert attention from the degree to which the court system as a whole was used to maintain domination. To legal practitioners and individual litigants operating within the system it might have been all-important whether the higher courts leant in favour of the Executive or in favour of liberty (the two in the South African context usually being regarded as mutually exclusive). But to the million Africans prosecuted under race-statutes each year such trends were largely irrelevant. While the judges were wrestling with large constitutional issues about whether in the absence of dear legislation to the contrary certain prominent individuals had the right to travel abroad, hundreds of thousands of ordinary people were being punished by the courts for moving without

passes inside their own country. During the period when the Appeal Court was emphasising that guilt in murder trials should be determined on a subjective rather than an objective basis—thus seeming to favour the accused person—the rate of executions rose more steeply than it had ever done before. For a long while the courts protected individuals who complained about social injustice, but as soon as these individuals began to take active steps to correct the injustice, the courts were used to penalise them. The failure of the courts to save black people from being dispossessed by the processes of law can be defended on the basis of the constitutional subordination of the Judiciary to the Legislature, just as the penalisation by the courts of black and white rebels can be justified in terms of the courts' duty to help maintain the public peace. Yet to emphasise the concept of judicial subordination is to undermine the notion of judicial independence.

To make these points is not to advocate the elimination of the Judiciary or to decry the efforts of those individual judicial officers who are concerned about the effects of their judgements; the thesis that more direct repression automatically leads to more powerful counter-action is hard to sustain, especially in the light of South African experience in the 1960s. It is simply to stress that the mere existence of a Judiciary confident in its learning and independence is no guarantee that justice will in fact be administered by the courts. One might here reverse the well-known maxim, and say that not only must justice be seen to be done, it must be done. Certainly the judges today would have more difficulty than their predecessors might have had in resisting the charge that if the symbol of the administration of justice in South Africa is a two-edged sword, the edge that menaces the black population has become increasingly sharp, while the edge that restrains white officials and police grows increasingly blunt.