This file is copyright of Jens Schriver (c) It originates from the Evil House of Cheat More essays can always be found at: --- http://www.CheatHouse.com --- ... and contact can always be made to: Webmaster@cheathouse.com -------------------------------------------------------------- Essay Name : 571.txt Uploader : Email Address : Language : English Subject : Politics Title : Morally Blinded: The role of the South African Judiciary in the 1950's Grade : 98% School System : University of Illinois at Chicago Country : U.S. Author Comments : Teacher Comments : Date : written Spring '96 Site found at : Surfing -------------------------------------------------------------- Why is it that in this courtroom I am facing a white magistrate, confronted by a white prosecutor, escorted by white orderlies? Can anybody honestly and seriously suggest that in this type of atmosphere the scales of justice are evenly balanced. Why is it that no African in the history of this country has ever had the honor of being tried by his own kith and kin, by his own flesh and blood? I tell you Your Worship why: the real purpose of this rigid color bar is to ensure that the justice dispensed by the courts should conform to the policy of the country, however much of that policy might be in conflict with the norms of justice accepted in judiciaries throughout the civilized world. Your Worship, I hate racial discrimination most intensely and in all its manifestations. I have fought it all my life. I fight it now, I will do so until the end of my days. I detest most intensely the set-up that surrounds me here. It makes me feel that I am a black man in a white man’s court. This should not be. (Mandela 326) South African courts have played a very significant role in shaping the social and racial barriers that apartheid created. Courts play a significant role because not only do they have the means to interpret the law but they also have the ability to make the law. Many unseen laws are made when the decisions of the courts are handed down. Courts historically are supposed to be unbiased by political atmosphere in their decisions, but in many cases they are not. During the decade of the 1950s, South Africa’s courts played a significant role in empowering apartheid. Even though many Afrikaners have painted a picture that the court was a body of fearless fighters for the less-privileged and unrepresented majority, I will prove that by using a jurisprudence that didn’t turn away from the legislative and executive branches, the courts allowed the legislative branch of South Africa to operate without a check on its power. The white minority in South Africa has oppressed the black majority ever since white settlers first arrived at the Cape in 1652. But systematic racial discrimination dates from the turn of the century when South Africa became one political entity under control of an exclusively white Parliament. Whatever the differences between the governments which followed, until 1990 they agreed that racial segregation had to be enforced in order to ensure the material, political, and social domination of white over black. In the general election of 1948, a government of Afrikaner Nationalists came to power. After a period of consolidation, they began to implement the most radical policy of racial segregation the century had ever seen. In addition, they brutally suppressed the mounting but non-violent resistance which ironically took place outside the white domain of parliamentary politics. The Nationalists called their policy “apartheid” and the statutes they enacted in the cause of its implementation and of the suppression of political opposition are known as “apartheid laws.” Apartheid laws usually state their objectives in very general terms and give extensive powers of implementation to executive officials. In the early 1950s, the Appellate Division, the supreme appellate court in South Africa, handed down decisions on the interpretation of apartheid laws which the government saw as an unjustified interference with executive action to implement apartheid policy. The government’s reaction was to enact new statutes and amend the old in an attempt to make its intention clear that the courts were not to interfere. In addition, by 1958 the character of the Appellate Division had changed. The court, now staffed by judges appointed by the Nationalist government, started to show itself more that merely ready to recognize explicit indications that it was not to interfere. It sought to find implicit support in apartheid laws for its reasoning that the courts should not interfere with executive action. Such a situation might seem inevitable in a country where there is an entrenched and determined government and where the courts accept a strict doctrine of legislative supremacy so that judges cannot declare statutes invalid for want of compliance with moral standards. A sense of inevitability is compounded when one observes that South African courts follow a strict doctrine of precedent, so that inferior courts in the judicial hierarchy are legally required to follow decisions of superior courts. It would seem, that is, that in a nation ruled by a government determined to implement a morally repugnant policy, where there is no check of a constitution which give courts the right to test the validity of statutes against substantive moral standards, there is no alternative but for the legal system and its officials to become the instrument of that policy. The judges of South Africa play an integral part in the legal system because they are called upon for the most part to interpret the apartheid laws, the statutes enacted by the Nationalist government to implement its policy of racial segregation and to suppress political opposition to that policy. When judges are asked to decide an issue in administrative law, judges must decide whether the official conduct under challenge is legal or not. The Appellate Division was constituted as a court as a direct result of the process of political union of the four British Colonies in Southern Africa: The Cape, Natal, Orange River Colony, and the Transvaal. As a prelude the Union, Britain granted these republics responsible governments in 1907 and representatives of the republics enacted the British Parliament of the South Africa Act. This act created a new colony, the Union of South Africa, and granted it the same status as other colonies in the British Empire. With this, the court was created and modeled after the English court system. During the years following the creation of the court till the 1950s, the perception of most participants and observers has been that South Africa forms part of a politically volatile and highly unstable region (Corder 17). The source of danger was the strained relations between English and Afrikaans speaking whites, manifest in industry and over the nation’s involvement in both World Wars, as well as the problems linked to economic depression and exploitation. Intra-white group rivalries constituted the race problem during this time, but the native question lingered as a major preoccupation, and came to be regarded as the chief danger to the status quo from the end of the Second World War onwards. All these social and political uncertanties combined to induce a judicial caution which would have inhibited any bold initiative in the field of judicial role, for fear of upsetting the delicate balance which was being engineered between English and Afrikaans speaking whites. There was a different aspect of this apparent instability, to be found in the voting rights arrangements of the four colonies. In South Africa, since the 1950s, the population was ruled by a legislature and executive whose constituency was a mere fifth of the country’s citizenry, a fact largely due to race discrimination (Corder 19). But this had not always been the case in all four colonies which entered the Union. In the Cape, and, to a lesser extent, Natal, the voting requirement had not been based overtly on race, and the Cape had followed a generally liberal tradition. However, political compromise during the late 1940’s and the National Party coming into pwer led to the domination of the racial attitudes. South African liberals had hoped that with the passage of time, racial tension would ease substantially and that more liberal attitudes would predominate over the provinces. If not for the political changes of the 1940’s, the approach of the courts to race in the cases which came before them could have contributed in a significant way, through the educational effect of their judgments on the public, to the eventual victory of one side. It might be assumed, perhaps, that an Appellate Division composed of Cape liberal men would have done its utmost to continue the liberal tradition when the opportunities arose, which they could have achieved by an enlightened attitude to questions of race in cases and statutes. The adoption of such a stance was plausible because of the dichotomy in historical approaches to racial affairs, but it was also constitutionally justifiable in pursuit of the goal of equality before the law. On taking office, South African judges swear to administer justice to all persons alike without fear, favor or prejudice, and, as circumstances of any particular case may require, in accordance with the law and customs of the Republic of South Africa. Since all judges and lawyers in South Africa are white, it is not surprising that the judiciary and the legal profession pride themselves on embodying all the virtues associated with their equivalents in Western democracies (Corder 38). Since the late 1940’s, a few South African liberal lawyers tried to put a dent in this self-image of their profession and the judiciary. They pointed out that South African lawyers have reacted to the apartheid laws with great silence(Dyzenhaus 49). They also pointed out that South African judges have been influenced by race in sentencing and have a record of deciding hard cases on the interpretation of the apartheid laws in a way that accords with the executive’s desires and with the racial prejudices of the white population. These lawyers also recognized that circumstances were such as to make it inevitable that the majority of their profession and the judges would respond in this manner. One may ask what else could be expected of judges who, as Hugh Corder portrays them, “while independent of political influence, manifestly incorrupt, and consciously impartial, were integral parts of the very structure which had created and now maintained injustice” (Dyzenhaus 50). During the 1950s, many judges tried to use mechanical jurisprudence, the case law behavior that judges use in deciding cases, such as the facts, when trying to reach a decision for a case. In many instances though, they were compelled to use the behavioral jurisprudence, the personal belief factors such as race, gender, political affiliation and personal attitudes and values in their decision making. This transition is where judges went from the “common law” practice to the “plain fact doctrine”. The new government wanted total control of the law making process to reside in the Parliament without any interference from the judiciary. In the early 1950’s, there was a great flurry of hostility between the government and the Appellate Division during the period when the court invalidated the government’s first two attempts to remove the Coloreds from the common electoral roll. The government was determined to have its way and thought the court was acting inappropriately, As the Prime Minister of that time , Dr. D.F. Malan, made it clear in 1952. “Neither Parliament nor the people of South Africa will be prepared to acquiesce in a position where the legal sovereignty of the lawfully and democratically elected representatives of the people is denied, and where appointed judicial authority assumes the testing right, namely, the right to pass judgment on the exercise of its legislative powers by the elected representatives of the people. It is imperative that the legislative sovereignty of Parliament should be placed beyond any doubt, in order to ensure order and certainty”. (Jackson 50) In the legal process, it is difficult to understand the politically disadvantaged groups’ quest for equality without an appreciation of the blends of politics and law in evaluating significant pronouncements from the Appellate Division, Parliament and the executive department of the government. Human rights issues occupy a significant place on not only the court’s agenda but also that of the political branches of government. To that end, it is important to emphasize various factors that illustrate the interaction between politics and law in the area of human rights. Conventional thinking in the judicial politics literature posits that Appellate Division policymaking is not independent from the influences of the external government. Perhaps one of the most contextual factors is that of the Prime Minister’s appointments to the court. The personnel changes of the 1950s were the major source of policy change because the Prime Minister appointed individuals to the court who shared his ideological views. There are several cases between 1948 and 1954 that show the court’s willingness to practice non-biased jurisprudence in cases involving the interpretation of apartheid laws. These six years were the beginning of the end for several judges in South Africa. Because of their open-minded behavior, many would be dismissed or forced to resign. This period is also known as the shift from the common law approach to the plain fact interpretive approach. A 1934 Appellate Division decision in “Minister of Posts and Telegraphs v. Rasool and the 1911 case of Moller v. Keimoes School Committee are an essential backdrop to an understanding of the 1950’s judgments and the ideologies of the justices. The government conduct in issue was an instruction by the Postmaster General dividing a post office in the Tranvaal into two sections, one for the Europeans and one for non Europeans. He had acted in terms of the Act 10 of 1911, which empowered him to issue instructions he “deemed necessary” for the carrying out of official duties. Rasool, an Indian, had challenged the validity of the instructions on the basis that, while the division of the post office did not result in equality of service, the mere fact of division amounted to be illegal because of substantial inequality of treatment. In a full bench trial of the Tranvaal Provincial Division, Justice Tindall upheld the decision of the court below in favor of Rasool that the instruction was unreasonable and therefore invalid. He referred with approval to the formulation of the principle of reasonableness in the English decision Kruse v. Johnson. One common law principle expressed in that case was that all people are equal before the law. One the basis of this principle, the courts ask whether executive acts are invalid or illegal because they are partial and unequal in their operation as between different classes when such partiality and inequality have not been authorized by the statute. In his judgment, Tindall said that decisions in his court had laid down that a discrimination based purely on race or color is a discrimination of that kind one authorized by the statue because its operation was partial and unequal as between different classes. In the appeal of the decision, the majority of the Appellate Division held that the mere fact of division did not amount to inequality of treatment. Every justice gave a different opinion as to the reasoning of their decision, but the opinion of justice Beyes stood out. He remarked that the principle that all are equal in the eyes of the law is “doubtless subject to qualifications and that, as far as the Transvaal was concerned, it was clear that Europeans and non Europeans were never in important respects equal in the eyes of the law. He also stated that “a division of the community on differences of race or language for the purpose of the postal service seems to be sensible and make for the convenience and comfort of the public as a whole since appropriate officials conversant with the customs, requirements and language of each section will conceivably serve respective sections”. (Dyzenhaus 67) The case of Moller v. Keimoes School Committee is significant because it sets out several justices views on how the official racial policy should influence judicial reasoning. Moller was a white man married to a Colored woman. The Keimoes school excluded his children on the basis of a Cape School Board Act, 35 of 1905, which provided that separate schools could be established for children of European parentage. Moller applied for a court order to compel the school to admit his children on the basis that they were of European parentage and the statute did not mention color as a criterion. He failed in the court of first instance and in two subsequent appeals. In the last of these appeals, Lord De Villier, the Chief Justice said that the court, to ascertain the meaning of European, “should endeavor to ascertain its popular sense and place itself as far as possible in the position of the authors of the enactment. As a matter of public history we know that the first civilized legislator in South Africa came from Holland and regarded the natives of this country as belonging to an inferior race, whom the Dutch, as Europeans, were entitled to rule over, and whom they refused to admit to social or political equality. We also know that, while slavery existed, the slaves were blacks and that their descendants, who form a large proportion of the colored races of South Africa, were never admitted to social equality with whites. Believing, as those whites did, that intimacy with the black or yellow races would lower the whites without raising the supposed inferior races in the scale of civilization, they condemned intermarriage and illicit intercourse between persons of the two races. Unfortunately, the practice of many white men has been inconsistent with this belief, but the vast majority of Europeans have condemned such unions, and have regarded the offspring of such unions as being in the same racial conditions as their black parents. These prepossessions or prejudices have never died out, and are not less deeply rooted at the present day among the Europeans in South Africa, whether of Dutch or English or French descent. We may not from a philosophical or humanitarian point of view be able to approve this sentiment but we cannot as judges, who are called upon to construe an Act of Parliament, ignore the reasons which must have induced the legislature to adopt policy of separate education for European and non-European children”. (Dyzenhaus 59) De Villier point is that, when there is uncertainty about the meaning of a statute, judges have a responsibility to decide the matter in accordance with the intentions of a particular group, the authors of the enactment. He also points out that judges have to fulfill the responsibility of morality, the morality actually accepted and shared by a given social group no matter what the divergence is between the appropriate morality and critical morality, the principles which figure in moral argument when one’s concern is the criticism of that morality. De Villiers and Beyers adopted a interpretive approach that empowered officials to make decisions affecting the racial order. In looking at the history of such statutes, it is clear that they form part of a pattern of a segregation of whites from blacks. The pattern is such that the best historical explanation of any statute that seems to belong to this class is that it forms part of an overall design initiated by whites because they consider blacks inferior and want to avoid all social contact with them. (Corder 165) The authors of these enactments in question intended the statutes be used to extend segregation. So in any case where the meaning of such a statute is in doubt, the judge should resolve the doubt by fitting the statute into the overall design. In the South African legal system, this test for intention is known as the historical design test because it looks to a pattern that exists as a matter of historical facts in the legal acts and decisions of the past, mainly those of legislators. (Dyzenhaus 57) In using this design, judges interpret statutes in question in the light of what they take to be the appropriate set of intentions, the moral ideas of the authors of the enactments. The intentions can be appropriate when they are found in the ideology of those in political power in Parliament and who are responsible for enacting the statute. Judges who used this design are known as the plain fact judges. These judges hold that the judicial role is not to make law in accordance with their convictions about what morality requires, but to apply as it, on particular conception of fact, exists. When the law is a statute, they should in deference to the supreme law giver, attribute to the statute the meaning Parliament, on the same conception of fact, intended it to have. If there is uncertainty about what Parliament intended, they must resolve this uncertainty in accordance with the same doctrine of judicial responsibility. They must look not to what they think the law should be, but to the sources of fact which for them legitimize an attribution of actual intention to Parliament. (Dyzenhaus 59) During the decades of the 1950s there were several cases where judges did not use the plain fact doctrine to reason their decisions thus denying Parliament to successfully implement certain apartheid laws. The Appellate Division decided R. v. Abduraham in 1950, two years after the Nationalist Party came to power. Act 22 of 1916 empowered the Administration to control, manage, and superintend railways, and, in particular, to reserve coaches for the use of different races. A regulation had been issued conferring the power on officials to make such reservations and making it a criminal offense not to heed to the reservation. Officials, acting by virtue of the regulation, reserved first-class coaches on suburban trains in Cape Town for Europeans only, while the remainder of the train was not segregated. Abdurahman was a member of a “Train Apartheid Resistance Committee” formed as a reaction to the reservations. He was convicted of inciting blacks to enter railway coaches reserved for the exclusive use of Europeans. The Appellate Division set aside his conviction. Justice Centlivres gave the unanimous decision of the court. Because the statute expressly enabled regulations which reserved coaches for a particular race to be made, he did not try the case on the grounds that the regulation was invalid. Instead, he decided that the particular practice which had been established was illegal. Centlivres in his reasoning quoted the formulation of unreasonableness in the Kruse case. He rejected the argument from the lower court that because the regulation was valid, any actual practice of reservation which complied with it was legal. He reasoned that the practice imposed substantial partial and unequal treatment on blacks, because while whites could escape the company of blacks, blacks were not given an equal facility and, in addition, exposed to a criminal penalty from which whites were in the nature of the reservation exempt. In his view, the formulation of the principle of equality in Kruse applied to the case because the partial and unequal treatment was substantial and not explicitly authorized by the statute. He distinguished the case from Rasool on the basis that, on the facts in Rasool, each section of the post office was reserved for the exclusive use of one race group while, in this case, there were no first-class coaches set aside for blacks. It was, he said, “one thing to authorize discrimination and quite another thing to authorize discrimination coupled with partiality and inequality in treatment”. He found it “impossible to assume that the Legislature intended that one section of the community could be treated unfairly as compared with another section. The State has provided a railway service for all its citizens irrespective of race and it is unlikely that the Legislature intended that users of the railways should, according to their race, have partial and unequal treatment meted out to them.” Centlivres believed that judges should assume that the legislature and executive officials are engaged with the judges in the pursuit of justice within the law. Centlivres was appointed Chief Justice shortly after his decision in Abdurahman. He followed that decision in Tayob v. Ermelo Local Road Transportation Board in 1951 In Tayob, the validity of a decision by the Road Transportation Board, constituted by virtue of a statute which did not expressly authorize discrimination, was at issue. In a unanimous decision Centlivres overruled the decision of the lower court which had upheld the validity of the Board’s decision to withhold a first class taxi-cab license from an Asian on the grounds of his race. The lower court considered that white public opinion was a relevant factor in deciding such cases. But, Centlivres said “the reference to public opinion was not understood. If public opinion were relevant, I do not see how it would be possible to ascertain the opinion of the public which consists of both Europeans and non-Europeans”. He cited his decision in Abdurahman as authority for this proposition: “To decline to grant an exemption on the ground that the applicant is a member of a particular race or class would be unreasonable. These two decisions show the court’s willingness to rule against the new government. They also show that the Appellate Division adopted a principle that differentiation on the grounds of race is valid as long as it is not coupled with substantial inequality.(Corder 150) The court in these cases is doing what it can to mitigate the effects of the kind of statutory provisions that expressly permits differentiation between races. The Nationalist Party government saw these decisions as a threat. They recognized the need for legislation that would yield the necessary power to oppose any doctrine “which aims at bringing about any political, industrial, social or economic change in the country.” (Jackson 28) During the decade of the 1950s, they passed and amended existing laws so that the judicial branch could and would not interfere. “Every protest, request or attempt at conciliation in order to alleviate the position of the black races has been met with the same answer: a new statute designed to create an offense of each request or protest, and to invest the authorities or relevant minister with still greater powers to deal with each new threat or protest as quickly and effectively as possible”. (Jackson 26) In 1953 for example, Parliament passed The Public Safety Act. This act was introduced to answer the mass protest organized by the ANC and the SAIC. In terms of the act, the Governor General was empowered to declare a state of emergency for a period of twelve months and pass such regulations as appeared necessary for the public safety. It also stated that the courts have no power of intervention , and an indemnity is given from all civil proceedings to anyone who exercises these powers in good faith. To counter Centlivres’s equality doctrine, Parliament passed the Reservation of Separate Amenities Act 49 of 1953, which uses a type of provision which expressly says that division may result in substantially unequal treatment. The Act provided for the reservation of public premises and vehicles by the person in charge for the exclusive use thereof and stated expressly that no equal provision for all races was required, and that it would be a criminal offense to fail to heed the reservation. In addition, the statute in Tayob was amended so as to permit transportation boards to refuse a license on the grounds of race. Every statute that followed, expressly required judges to follow the principles of the plain fact interpretive approach which did not require judges to apply apartheid policy. These statutes stripped the judges of their power to apply and enforce the common law. By 1955 the Nationalist Party gained control of the courts. As regards to race discrimination and apartheid laws. the impression generated by the cases is one of a judiciary willing to carry out legislative and electoral opinion in matters of race to the full. Except in the Abdurahman case, there is no apparent attempt by the court to mitigate the harsh effects of oppressive laws, or to criticize their substance and application. Nowhere is there a sign of an endeavor to adhere scrupulously to the doctrine of equality of all people before the law, or even to remind the law giver, ever so gently, of this principle. The overall picture of the judicial branch during the decade of the 1950s is one of a group of men who saw their dominant role as the protectors of stability in the social formation of which they formed an integral part. This conception of their tasks was, doubtless, influenced by their racial and class background, education and training. The judges expressed it in terms of an acceptance of the concept of legislative sovereignty, despite a patent racist political structure. and of a desire to preserve the existing order of legal relations. There can be little argument that the picture of the appellate judiciary, as a body of fearless freedom fighter for the less privileged and unrepresented majority, is a mythwhose perpetuation serves the cause of inequality. In truth, the members of the Appellate Division, while formally independent from political influence, manifestly incorrupt, and consciously impa --------------------------------------------------------------