in Cape Town since July 1960. The pass law authorities initially allowed her to stay but then, as part of the crackdown on ‘urban blacks’, in January 1975 they instructed her to go back to the Eastern Cape.
She refused to leave. The pass regulations required that, as the wife or customary union partner of a long-term resident, she had to have what was quaintly called a ‘lodger’s permit’. The Cape Town court enforced this requirement. Chaskalson appealed the verdict to Bloemfontein. He argued that the lodger’s permit requirement was inconsistent with the statute under which the regulations were promulgated. He said the lodger’s permit regulation was invalid.
The appeal court upheld his argument. The judgment was written by Judge Rumpff – the judge who in 1952 sentenced Mandela to a suspended jail term for his part in the Defiance Campaign, and who in 1961 acquitted him in the Treason Trial.
Now it was August 1980, and Rumpff was Chief Justice. He found for Mr and Mrs Komani. He wrote a judgment scrapping the iniquitous system of ‘lodger’s permits’. Mrs Komani’s case established that, as Mr Komani’s spouse, she did not need a separate permit to live with her husband.
Less than three years later, Mr Tom Rikhoto, again with Chaskalson’s advocacy, struck what was to prove a probably fatal blow at the pass laws. To become entitled to live permanently in the urban areas, a black person who was born in the ‘homelands’, and not in a city, had to have ‘worked continuously’ in an urban area for ten years.
Since August 1970, Mr Rikhoto had been working for the same employer, and living in Germiston, an industrial and gold-mining city close to Johannesburg. The regulations enforcing the pass laws required him to leave every year, and to return to his ‘homeland’. So he did. For a few weeks each year, he returned to his rural home in Gazankulu, in the remote northeast of the country.
Every year, early in the new year, he returned to Germiston, knowing that his employer needed him, and that his employer would give him back his job for another year. And when he returned in January each year, this is indeed what happened. For over ten years, year by year, like clockwork, his employer re-employed him.
Did this mean that Mr Rikhoto had ‘worked continuously’ in Germiston for more than ten years? If the answer was Yes, he was entitled to stay permanently in the urban areas. He would have security of tenure as a city dweller. But the pass law authorities said No, and they refused Mr Rikhoto and others in his position the right to live permanently in the cities.
The LRC took Mr Rikhoto’s case to court. Government argued strenuously in support of the pass law officials. It pointed out that Mr Rikhoto took leave every year. And his contract was renewed from year to year. It was not ‘continuous’. Hence, government argued, Mr Rikhoto had not worked continuously. For all those years, he had been employed only for separate one-year fragments. This meant that he had no right to live permanently in the urban areas.
The LRC lawyers contested this. The courts’ answer was crucial to enforcement of the pass laws, since there were millions in Mr Rikhoto’s position.
The tight legal question was what constituted ‘continuous’ residence and employment. But behind the legal issue was the human question of residential security for a significant segment of urbanised South Africa. And behind that social question lay a blunt political question. This was whether it was still practical for apartheid ideologues to dream of enforcing ‘grand apartheid’. To be practicable, grand apartheid wanted to make black South Africans identify with their ‘homelands’. It wanted them to plan their lives and future in their own areas and to accept that their time in the ‘white’ cities was just a temporary sojourn.
The Rikhoto case put this cruel and absurd logic to a legal test. The courts failed this logic. Both the Pretoria court and the appeal court in Bloemfontein, following on its humane ruling in Mrs Komani’s case, ruled in Mr Rikhoto’s favour. Even though Mr Rikhoto went back home every year, and even though his job contract was renewed year by year, he had in fact lived and worked ‘continuously’ in the urban areas. He was entitled to stay permanently.
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
