style="font-size:15px;"> 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 words were humble, direct and powerful. He described how he had risen from being a court interpreter to qualifying as a public prosecutor and then becoming a magistrate, and later an advocate, a senior counsel and eventually a judge of the Constitutional Court.
He had seen the system at its worst. He described his ‘frustration, indignity and humiliation’ of being subjected to the pass laws, which included degrading medical examinations. To watch how pass law officials, both black and white, enforced the law was ‘soul-destroying’. ‘No one,’ he said, ‘can ever forget the experience.’ And the role of the judicial system in this, Justice Langa pointed out, ‘was to put the stamp of legality’ on a framework designed to perpetuate disadvantage and inequality.
I also made a personal submission to the TRC. In it, I pointed out how all of us who participated in the apartheid system were responsible for its injustices. In a passage the TRC included in its final report, I said that all lawyers and judges, whatever their personal beliefs and whatever the extent of their participation, were in some way complicit in apartheid. But this did not mean, I said, that there were no degrees of complicity or moral blame.
The TRC found that the legal system and all its members – judges, magistrates, prosecutors, advocates, attorneys and law teachers – were deeply complicit in apartheid. This was because, as it rightly noted, the apartheid leaders ‘craved the aura of legitimacy that “the law” bestowed on their harsh injustice’ – therefore, superficially, they adhered to the rule of law. The consequence was longer and harsher apartheid law.
Yet, for all this, the TRC noted that there were always a few lawyers who were prepared to break with the norm. These lawyers used every opportunity to speak out publicly against laws sanctioning arbitrary conduct and injustice. They explored the limits in defending those on trial for anti-apartheid offences. They worked ceaselessly to defend those whom apartheid targeted, often under difficult circumstances and for little reward.
The TRC also recognised those judges who found in favour of justice and liberty wherever proper and possible.
Importantly, the TRC remembered not only lawyers operating in the courts, but also those operating outside the courts. It mentioned lay activists and community advisors, serving the rural poor and workers through advice offices and religious bodies. It also mentioned legal academics, who challenged their students to understand how law was related to justice, and to work to attain their ideals.
On this evidence, the TRC was able to reach an overall conclusion. It said that to practise as an anti-apartheid lawyer under apartheid was justified. It found that what anti-apartheid lawyers had done to diminish suffering ‘substantially outweighed the admitted harm done by their participation in the system’.
XIII: Apartheid law and the constitutional transition
It was the legal clothing apartheid wore that made it possible for some judges of honour to remain on the Bench, and for lawyers opposing apartheid – including Nelson Mandela and Sydney Kentridge and Arthur Chaskalson and George Bizos and Pius Langa – to challenge it through the very legal processes that were designed to enforce it. This is because law can provide a cloak of legitimacy to the exercise of power only for so long as it really does curb power. If it does not, there is no longer law. There is only brute force.
So it was under apartheid. Though apartheid’s brutality was enforced through the law, the law also inhibited some of its excesses. And it was the work of anti-apartheid lawyers, and some honourable
