This decision meant not only that a huge group of black people gained legally secure status in the urban areas, but that it became practically impossible to enforce the pass laws. Further legal activism nailed the lid on the pass law coffin. In addition to the Komani and Rikhoto victories, in the early 1980s Lawyers for Human Rights and CALS provided mass defences for city dwellers prosecuted for contravening the residential segregation laws. Then they launched a campaign to provide free legal representation in pass courts. Once pass law accused had lawyers to represent them, the pass courts simply could not work. What had previously been a quick two-minute hearing now took a day.
The lawyers’ interventions eventually forced the apartheid government to see the folly of its ways. On 23 July 1986 the apartheid government gave up on the pass laws. The pass law statute was repealed. The lawyers’ work and the courts’ decisions had rendered a pivotal piece of the grand apartheid design unenforceable.
Amidst the brutality and turmoil of the 1980s, my CALS colleagues and I sometimes even managed to turn apartheid’s logic against itself. In two cases, we managed to thwart government’s plans to split off pockets of the rural areas, under oppressive pro-apartheid traditional leaders, to set up further ‘independent’ Bantustans. We did so with legal arguments that gleefully turned the grand theory of apartheid against the evil system itself.
Government tried to incorporate the relatively prosperous Moutse area, northeast of Pretoria, into the impoverished Ndebele-speaking homeland KwaNdebele, to make it viable for ‘independence’. John Dugard, head of CALS, devised a clever argument. Surely this offended apartheid’s own legislative principles of ethnic purity, he argued. After all, the population of Moutse was not Ndebele. It was predominantly Pedi speaking. By apartheid’s own logic, Moutse’s Pedi speakers could not be dragooned into an alien-cultured homeland.
I helped Dugard formulate the court papers and the evidence, and acted as his junior counsel in the high court and the appeal court. We lost in the Pretoria High Court, but the appeal court reversed the high court judgment. It upheld Dugard’s argument. It found that government could not use a statute based on distinct ethnicities to create a single homeland by forcing other ethnicities into it. The court set aside Moutse’s incorporation into KwaNdebele. As a result, ‘independence’ was put on hold.
But the apartheid planners persisted. Even though Moutse could not be tagged onto KwaNdebele, they proceeded with ‘independence’ plans. So, in another case, Geoff Budlender from the LRC briefed me to challenge the State President’s official proclamation announcing pre-independence elections. The proclamation allowed only Ndebele-speaking men to vote. Women were barred. This, surely, was not acceptable! Or so we protested in court papers on behalf of Ndebele-speaking women objecting to their exclusion.
Of course the women we represented did not want to vote in an ‘independent’ homeland. They wanted freedom in their own country. But our argument used principles of Roman and Roman-Dutch law to thwart the grand design of apartheid. The common law, much prized by Afrikaner judges, forbade unequal treatment and discrimination, unless legislation in express terms authorised it.
And the legislation said nothing that empowered the State President to bar women from the vote. So we urged that the elections were illegal. Without express legislative sanction, women had to be allowed to vote. The court agreed. It upheld our argument. The effect was that the KwaNdebele elections were trash-canned – and, as a result, KwaNdebele independence never happened.
These legal ploys were possible because, in its essence, apartheid was a project that used the law as its instrument. For most of its history, most of those enforcing it saw themselves as subject to the law and its constraints. This changed radically in the 1980s, when ‘dirty tricks’ campaigns were sprung, and murderous ‘third forces’ were unleashed.
Until then, security policemen, bureaucrats, politicians and lawyers, including apartheid-minded judges, thought of themselves as operating within the values of an ethically sound and respected legal system. They knew apartheid was criticised around the world, and that most black South Africans rejected it vehemently, but they told themselves that there was a logic and justice to it.
Because of this, the legal system offered space to thwart apartheid’s plans and grand designs. And hence the legal system often did operate as a brake. On occasion, the courts were a real constraint on what the apartheid apparatus was able to achieve. Apartheid bureaucrats found that implementation of their orders was sometimes slowed down. They found the courts served as a check on government and police action.
And it was the very legal trappings of apartheid, despite the evil they engendered, that laid the foundations for the constitutional system that followed.
To say this is not uncontroversial. The role of judges and the courts under apartheid inspired impassioned debate. Some argued that the legal system provided a cloak that legitimated apartheid – enabling it to be enforced for longer under a guise of respectability. Others urged that the legal system offered important opportunities to ameliorate and sometimes halt, or even reverse, abusive injustice.
Both sides were right, for without the law, apartheid may not have been as efficient as it was for so long. But without the law, it would undoubtedly have been an even harsher, more vicious, destructive and degrading system. Anti-apartheid legal activism played an important role both in slowing its implementation and in alleviating its injustices. More importantly, together with the honest and principled judges who refused pro-apartheid rulings whenever they could, legal activism opened a way to a better legal system – one where the law seeks to secure justice and equality, and not their opposite.
XII: The apartheid judiciary and the Truth and Reconciliation Commission
In 1997 the Truth and Reconciliation Commission (TRC), chaired by Archbishop Desmond Tutu, called for submissions and evidence from judges and the legal profession on their role under apartheid. The country’s five top judges put in a joint submission. They were Justice Chaskalson, the new President of the Constitutional Court, his deputy, Justice Pius Langa, and the two senior judges in the appeal court in Bloemfontein, Judge Ismail Mahomed and his deputy, Judge Hennie van Heerden. Recently retired Chief Justice Corbett, whom the new democratic government had asked to stay on in 1994, joined them.
The five judges pointed out that law was the primary tool used to give effect to apartheid. From 1948, when apartheid became the chief focus of government policy, there were in effect two legal systems – one for whites and the other for blacks. Throughout the apartheid era, laws violated a host of human rights. These were introduced with muted protest from only a few judges and lawyers.
The five noted that the legal system generally treated whites benevolently but that the system for black South Africans did not meet the standards of the rule of law and respect for individual rights. In the magistrates’ courts, and in pass law courts, they came into daily contact with the brutal side of apartheid law.
The judges pointed out that few of these cases came before the higher courts. But they noted a shameful thing about apartheid law. When confronted with these cases that came up from the lower courts, judges treated apartheid provisions as ‘normal law’. It was very rare, they said, to find a judicial officer remarking on the racist and unacceptable character of apartheid law. The judges pointed out how the courts also failed to protect detainees held without trial. Courts should have been vigilant to provide protection against abuse, but they were not.
The submission noted that lawyers’ challenges did reduce apartheid human rights violations and provide some protections. People charged with political offences pleaded not guilty and mounted careful defences. Sometimes they succeeded, and avoided conviction. ‘For all the deep injustices perpetuated by law,’ the five judges argued, ‘there remained a real sense in which the techniques and procedures of law remained independent from the gross manipulation of the executive and in which justice was sometimes seen to be done. No account of these years would be accurate if it were not accepted that justice was done and seen to be done in some cases.’
To this, Justice Langa added a deeply personal submission. His