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.