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.