On a hot morning in the last week of February 1972, the appeal of ffrench-Beytagh v The State was called. The hearing was in the main courtroom of the imposing 1920s appeal court building in President Brand Street, which stands opposite the Free State Republic’s beautiful nineteenth-century Raadsaal.
Chief Justice Ogilvie Thompson presided. All appeals in Bloemfontein are called with utmost attention to propriety. I learned this in the eight years, rich and experience packed, that I spent as a judge in that court from 2001 to 2008. When I arrived to take my appellate seat in January 2001, Judge Ogilvie Thompson’s reputation as a stickler for precise timekeeping and rigorous decorum still lingered in the corridors.
And, even now, the protocols instilled over decades are followed. First, the judges assigned to hear an appeal assemble in the gallery outside the courtroom. They do so five minutes before the case is to be heard, to make sure proceedings start precisely on time. At exactly 9:45, the court orderly enters the courtroom, and summons all to rise. Then with a swish he tugs the drawstring that opens a maroon velvet curtain screening the judges’ gallery from the public. The judges file in, in strict order of seniority, and take their places on the Bench – the senior judge in the middle, the next most senior to the right, and third most senior on the left, and so on.
The judges bow gravely to the lawyers and members of the public, and take their seats. The advocates, the attorneys and the public sit. The presiding judge’s registrar gets up and calls the case for hearing. After a moment of shuffling papers and pens and checking books, the presiding judge signals that counsel for the appellant may rise to address the court.
Even in Bloemfontein’s fiery Februaries, the high-vaulted main courtroom is comparatively cool. It has to be, for its severely elegant, stinkwood-panelled walls have witnessed many heated legal battles.
IV: A brave history – the 1950s appeal court confronts the apartheid government
In 1952, twenty years before the Dean’s appeal, the appeal court gave two of its most dramatic rulings. To the fury of the apartheid government, which came to power in 1948, the court under Chief Justice Centlivres declared invalid a law that stripped coloured voters in the Cape of their voting rights on the common voters’ roll. The coloured vote was the sole racially liberal remnant of the settlement that consolidated white supremacy under British authority in South Africa in 1910. Parliament had removed African voters in the Cape from the roll in 1936. Now in its quest for all-white racial purity, the apartheid government was determined to expunge even this last trace of racial commonality.
But the coloured vote was ‘entrenched’. A special parliamentary procedure had to be followed to abolish it. This demanded a two-thirds vote of both houses of Parliament, sitting together. The new government’s lawyers advised that these restrictions, which the British Parliament enacted when it passed the South Africa Act in 1909, were no longer binding on Parliament, since it was now a fully autonomous legislative body, no longer subject to the mother legislature in Westminster, England.
The logic was bad, however. The Cape Town Parliament, no matter how autonomous, could act only within the limits of the powers conferred on it at its creation. It could not invent new powers for itself, or ignore the procedural limitations by which it was constituted. Nor could it make itself into a ‘high court of Parliament’ – as it proclaimed itself after the appeal court’s first ruling against the coloured vote abolition – to reverse the judges’ decisions. That, too, flouted the foundational principles of parliamentary power. Twice, Chief Justice Centlivres’s court bravely called out the flawed logic, and threw out the bad statutes.
The rulings delayed the coloured vote debacle by four years, but the apartheid hardliners won in the end. They gerrymandered the Senate, or upper house of Parliament, by vastly expanding it, to secure the combined two-thirds majority they needed. The manoeuvre was rightly regarded as a fraud on coloured voters’ rights. In addition, they stacked the appeal court with five extra judges to ensure the court toed the line. The extra appointees weren’t necessary. In 1956 the court ruled that the Senate-packing legislation stood – and the vote was ten to one. Coloured voters disappeared from the common roll. It would be nearly forty years before a white and a coloured South African could once more stand in the same voting queue and vote alongside each other.
But the ruling in the Senate-packing case was not unanimous. One judge wrote a dissenting opinion, saying why he thought the majority was wrong. He was Oliver Schreiner, next most senior after Chief Justice Centlivres. He said that ordinarily Parliament could create any form or type of Senate it wanted using ordinary procedures. However, when it came to the protection guarding the coloured vote, which required the Senate to sit with the House of Assembly, the court had to look not at form, but at substance. In other words, the court’s job was to assess not how well the conjuror concealed the trick, but whether there was a trick. The Senate-packing legislation was a trick or fraud (Schreiner politely called it ‘a legislative plan’) designed to get round the protection afforded to coloured voters on the common roll. This was because government enlarged the Senate for the sole purpose of getting past the two-thirds majority requirement. The court should therefore strike the plan down as invalid.
Schreiner did not carry the day. His more conservative colleagues, even Chief Justice Centlivres and others sickened by the Senate shenanigan, concluded that the apartheid hardliners’ manoeuvre now passed legal muster. But, as with other powerful dissenting judgments, Schreiner’s reasoning ignited a flicker of light. His views in the Senate-packing case on substance versus form in legal devices eventually took flame, and have prevailed. To this day, they are cited in judgments. His views shape how South African lawyers approach contracts and tax havens and trusts and statutory bodies. Judges look first to see if there is a trick, not how well it is covered up.
More importantly, together with the bold earlier judgments, Schreiner’s stand left a moral and political legacy. It laid a paving stone that would eventually open a path to a constitutional future. The appeal court’s decisions striking down apartheid legislation, and the dissent in the Senate-packing case, showed what principled judges might achieve if they remain true to legal values. They can provide a bulwark for legal rights and civil liberties, even when powerful lawmakers try to undercut them.
V: The appeal court wavers in defending liberties
That brave legacy did not stand unblemished. In the decades after the coloured vote cases, the appeal court stumbled away from principle shamefully often. In one notorious case in 1964, it ruled that security police detainees, even though not yet convicted of any crime, could not, in contrast to awaiting-trial prisoners, enjoy access to books, pens and paper. Parliament did not intend, the court ruled, that security police arrestees should be allowed ‘to relieve the tedium of their detention with reading matter or writing materials’. To the contrary, the court said, the object of the legislation was to get the detainee to talk. Reading and writing went against this. So the ban was valid under the powers the statute conferred.
The detainee who went to court to claim his right to read and write was an advocate in Cape Town, Albie Sachs. A soft-spoken intellectual with a passionate commitment to a just legal system, Sachs nearly lost his life in 1988 while in exile in Mozambique, when the security police detonated a bomb under his car. But Sachs survived, and just six years after the car bomb, and thirty years after the appeal court ruled against his rights in detention, President Mandela appointed Sachs a judge in democratic South Africa’s new Constitutional Court.
The judge who wrote the ruling denying him books, pens and paper was none other than Justice Ogilvie Thompson – who, after becoming Chief Justice, now, in 1972, presided over the Dean’s appeal.
Opponents of apartheid, in South Africa and abroad, responded with furious dismay to the ruling in Rossouw v Sachs. Judge Ogilvie Thompson was condemned for bending over to please the executive at a time of ‘white fright’, when he should have stood firm in defence of vulnerable detainees. Critics pointed out that, until his ruling, South African law provided plainly that unsentenced detainees had the right to reading and writing materials. The only poser was one of legal classification: how to slot in the new category of security