Working for progressive change in

South African courts·

Victor Southwell··
Researcher, CriminalJustice Research Unit;
Department of Criminal &- Procedural Law, Unisa

Introduction
The introduction of a bill of rights and the consequent demise of parliamen-
tary sovereignty demands a reassessment of judicial interpretation in South
Africa. The current changes in South Africa are the result of mobilisation and
organisation by the oppressed and disempowered majority, not the benevol-
ence or altruism of the courts.
The object of this article is not to provide an exhaustive account of the
interpretative approach of South African judges during the apartheid era. This
has already been done by better qualified scholars. t Rather, it will focus on
the two models of judicial interpretation applied in South Africa in the
adjudication of apartheid laws. First, the 'plain fact' approach based on legal
positivism, and second, the common law approach based on the writings of
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

Ronald Dworkin. It will conclude that neither of these provides an adequate

account of the role of South African law in progressive social struggle in either
apartheid or post apartheid South Africa, and that promoting one or the other
prescriptively has had very little impact on the decisions of the courts.
Of course, the courts have a role in the continuing social struggle, but that
role should not be overestimated. Particularly in conjunction with other
political strategies the bill of rights may playa valuable role. However, this

'Submitted in compliance with the requirements for the degree liM at the uw
School, University of Michigan. The writer wishes to express his gratitude to the
following for their financial assistance without which this article would not have
been possible: the Attorneys Fidelity Fund, the uw School, University of Michigan,
and the Department of Criminal and Procedural uw, University of South Africa and
in particular Professor JH van Rooyen. However, the views expressed are those of
the author.
··BLC LLB (Pretoria) L1M (Michigan).
lIn this regard, see H Corder Judges at work: tbe role and attitudes of tbe Soutb
African appellate judiciary 1910-50 (1984); J Dugard Human rigbts and tbe Soutb
African legal order (1978) (hereafter Dugard Human rigbts); D Dyzenbaus Hard
cases in wicked legal systems: Soutb African law in the perspective of legal
philosopby (1991) (hereafter DyzenhausHard cases); CF Forsyth In danger for their
talents: a study oftbe Appellate Division oftbe Supreme Court ofSoutb Africafrom
1950-80 (1985); A Van BlerkJudge and bejudged (1988) and a plethora of writings
and debates in South African legal periodicals during the 19805, some of which are
referred to in other notes below.
 262 XXVIII elLSA 1995

article will propose that lawyers and scholars can only hope to use the courts
as a forum for progressive social change if they appreciate the social and
historical context within which judicial decisions are made.

Legal positivism and the 'plain fact' approach

HIA Hart, the foremost contemporary positivist, identified three distinctive
characteristics of legal interpretation originally set out by the Utilitarians
Bentham and Austin. 2 First, a strict division between law and morals, or to put
it differently, between the law as it is and as it ought to be. Second, the need
for purely analytical study of legal concepts and finally, the imperative of law
as rules (Hart) or a command of the sovereign (Austin).3
Hart argues that human fallibility and our limited purview make it counter-
intuitive to assume that there is a necessary correlation between law and
justice. This is not, however, to endorse complacency about existing law.
Positivists need not deny the relevance of morality to the development of the
legal system and specific la~, or deny the impact of law in shaping moral
attitudes. 4 However, Hart emphasises that clear thought is promoted by
remembering that '[t]he existence of law is one thing; its merit or demerit
another'.~ There is no necessary moral minimum that a rule oflaw must satisfy
in order to be law, beyond certain 'fundamental' rules required to make any
sense in having other rules. 6 Hart firmly maintains that a law may be a bad
one, and therefore raise the question of personal obedience, but it remains a
law. 7 He continues that true positivism calls for judicial creativity in the
direction of law reform. 8 Although judges have to apply rules laid down by
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

the legislature and legal precedent, these rules can never be comprehensive
enough to cover every factual situation. Judges are required to fill in the gaps
and 'legislate' interstitially where there is no clear rule or where the language
of a rule leaves room for discretionary interpretation. Moral conceptions of
what the law ought to do playa part when the judge makes choices in the
'penumbras of hard cases'.9
The plain fact approach is a vulgar form of legal positivism. 10 Dugard has
pointed out that modem positivists rightly protest this vulgarisation of the

2See HlA Hart The concept of law (1961) (hereafter Hart The concept of law) and
HlA Hart 'Positivism and the separation of law and morals' reprinted in Hart Essays
in jurisprudence and philosophy (1983) 59 (hereafter Hart 'Positivism').
lHlA Hart 'Positivism' 60l.
4Ibid 595.
sIbid 596.
6Ibid 623. These would include rules against free violence and minimum guarantees
of property.
7Ibid 620.
8Ibid 608-09.
9Ibid 605-15.
IOFor a detailed description of the plain fact approach and its application in South
Africa, see Dyzenhaus Hard cases.
 Working for progressive change in South African courts 263

positivist theory of adjudicationY Hart expressly rejects a 'mechanical'

process of 'finding law' and agrees with Austin that to do this is a 'childish
fiction'.ll Judges who follow the plain fact approach argue that the judicial
role is not to make law in accordance with their convictions of morality, but
to apply the law as it infact exists. 13 When the law is a statute, judges should
defer to parliament, as supreme lawgiver, and attribute to the statute the
meaning parliament in fact intended it to have. If parliament's intention is
uncertain, judges 'must look not to what they think the law should be, but to
sources of fact that seem to legitimise an attribution of actual intent to
Parliament. ,14
Of course, the plain fact approach is a political doctrine. Only facts that
promote a majoritarian conception of political responsibility were relevant to
plain fact judges. It requires judges to execute the will of the majority, as
expressed by the legislature, and not to substitute their own views of what
should have been enacted. U
As a result of the nature of the political values underpinning this approach,
statutes hold a privileged status for plain fact judges. In any situation where
the meaning of a statute is unclear, a plain fact judge will be primarily, even
exclusively, concerned with the meaning of the statute as an expression ofthe
legislative will. Consequently, plain fact judges conceive the common law as
useful only to clear up issues when statutes are unable to do so. 16
Plain fact judges apply two tests to indicate an implicit legislative intention to
exclude common law values from the interpretive process. 17 First, is an
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

historical design test which seeks an historical pattern in the legal acts and
decisions of the past. If the appropriate pattern is discovered it is considered
a precedent to be followed. Second, judges look for certain statutory
elements, or high-grade counterpointers, as indications of the legislature'S
intent that point away from common law values. High-grade counterpointers
are those which trigger the judge's sense that the very nature of the statute
points away from common law values. Dyzenhaus points to South African
security laws and statutes that dealt with vital aspects of apartheid policy as
examples of statutes that triggered high-grade counterpointers in the minds
of South African judges. 18
Once this trigger has been set off, a dual line of reasoning follows. First,
common law values are suspended and second, the interpretative context in
which the meaning of a statute is to be determined, is regarded as being

l1J Dugard 'The judiciary in a state of national crisis with special reference to the
South African experience' 1987 Washington and Lee Law Review 477 at 496.
12Hart The concept of law 609 n 34, 610.
IlDyzenhaus Hard cases 217.
14lbid 217-18.
151bid. See the discussion of majoritarian values in South Africa below at n 21.
161bid.
171bid.
18lbid 219.
 264 XXVIII CILSA 1995

dominated by lower-grade counterpointers present in the nature of the

statute. 19 These lower-grade counterpointers include
the complexity of the administrative machinery for which the statute provides;
the complexity of the policy issues which are the basis of the decision in issue;
the decision in issue; the fact that the executive officer who makes the final
decision on an issue is not bound by the report to which access Is sought; the
fact that a "reason to believe" is framed "subjectively" - "if in the opinion of
the Minister" - instead of "objectively" - "if the Minister has reasonable
cause to believe that".20

It is important to note that Dyzenhaus believes that the majoritarian ideal can
find as forceful an application in a country like South Africa, where the
legislature was representative of an oppressor minority, as it can in a country
enjoying universal suffrage. In the opressive system the alliance of the plain
fact judge is to the majority of legislatures, not the majority of citizens. This
may seem bizarre, but as Dyzenhaus points out it made sense to judges who
held the view that some South Africans were legitimately excluded from the
democratic process because they were inferior. 21
Moreover, this 'defonned majoritarian' approach finds support in the ideals
of Thomas Hobbes. According to Hobbes, individuals in a natural state
without political order would be constantly at war with one another, because
they would not be able to transcend the inevitable clash between their
'natural', individual reasons. However, there is one standard which transcends
the clash of individual reasons; the preference for order over chaos. This
preference, and the fact that individual reasons cannot be taken any further
than this, leads Hobbes to conclude that 'we can be taken to have consented
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

in a social compact to the system of positive law expressive of the political

order in which we happen to find ourselves'Y Individuals are considered
to have set up an artificial standard of 'right reason', the reason of one
particular individual called the sovereign. Law is the command of the
sovereign and it is legitimate because the sovereign has commanded it.
It is a part of Hobbes's theory that those who do not understand their
obligation to obey may have to be coerced. 'Law is not merely the command
of the sovereign. It is the command backed by a sanction which will make
obedience less painful than disobedience'.23 Many judges might think that
the public should regard the law as legitimate because the official policy is
right. But even those who do not believe this must think that the public should
regard the law as legitimate because legal subjects are under a moral
obligation to obey the law whether or not they regard it as morally justified. H
Examples of the application of the plain fact approach abound in South

19Ibid.
2OJ> Dyzenhaus 'The disappearance oflaw' 1990 SoutbAfrican LawJoumal 227 at 236
(hereafter Dyzenhaus 'The disappearance of law).
21Dyzenhaus Hard cases 221.
22Ibid 222-23.
'23Ibid.
'lAIbid 224.
 Working for progressive change in South African courts 265

African law reports. There is little doubt that whenever possible, judges who
adopted the plain fact approach were appointed to the bench and senior
judicial positions. 2 ' One of the most notable cases in this regard was the
Appellate Division judgment in Omar v Minis ter ofLaw and Order. 26 In 1985
and 1986 the State President declared a state of emergency and issued
emergency regulations in tenns of the Public Safety Act. 27 These regulations
authorised the arrest of any person whose detention was, in the opinion of a
member of the police or armed forces, necessary for 'the maintenance of the
public order or the safety of the public or that person himself. 28 Such a
person could be detained for a period not exceeding fourteen days but the
Minister of Law and Order could, 'without notice to any person and without
hearing any person' extend the period of detention.29 Save with the consent
of either the minister or the Commissioner of the South African Police, and
under such conditions as imposed by either, no person, apart from a state
official, was allowed access to such a detainee. 3O In tenns of the rules issued
by the Minister of Justice under regulation 3(9) of the regulations, no person
could visit a detainee without the pennission of the person in command of the
prison. If a legal advisor wished to visit such a detainee, the pennission of the
Minister of Law and Order or the Commissioner of the South African Police
was required. 31
The appeal was important as the issues before the court had resulted in
different decisions in the lower courts. The regulations were challenged on
the ground that they were an 'oppressive or gratuitous interference' with the
rights of the detainee that could 'find no justification in the minds of
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

reasonable men' and were therefore ultra vires on the grounds of unreason-
ableness 32 or unauthorised interference with fundamental rights. 33
The court (Hoexter,]A dissenting)34 found that the powers conferred on the
State President in the Public Safety Act authorised him to take drastic measures
he considered necessary or expedient for dealing with the emergency, even
if this resulted in the violation of fundamental rights. 3 } Rabie ACJ on behalf
of the majority, noted that:
[lIt is not open to a court, when considering a regulation, to substitute its
assessment of what would be necessary or expedient to achieve the purposes
mentioned in the section for that of the State President and to hold that the
regulation is invalid because the State President could, in its judgment, have

25Dyzenhaus Hard cases 173.

26 1987 3 SA 859 (A).

Z7Act 3 of 1953. See discussion below at n 117.

28Regulation 3(1).
29Regulation 3(3).
3OReguiation 3(10) (a).
31Rule 5(1).
32The test was formulated in the English case Kruse v Johnson 1898 2 QB 91 at
99-100.
33R v SLabber! 19564 SA 18 (I); R v Heyns 1959 3 SA 634 (A) at 637.
14See the discussion of the dissenting opinion by JA Hoexter n 79 below.
3SAt 892D-G.
 266 XXVIII CILSA 1995

dealt with the matter In Issue in another, less harsh way. 36

The fact of the matter is that Omar saw the court chartering the penumbras of
the law were it had to exercise its discretion. The issue raised was in essence:
can emergency regulations exclude the right to counsel and the audi alteram
partem rule without express or implied authorisation in the enabling statute?
The fact that the court chose to exercise its discretion in favour of the
executive at the cost of fundamental common law rights, ignoring persuasive
arguments by the dissent, shows the consequences of the plain fact approach
in stark reality.
With such a theory of adjudication holding sway, plain fact judges were able
to lull themselves into believing that they had no choice when interpreting
racist and repressive statutes. It was the body of statutory law which contained
the law of apartheid and no more. Anything else would not have sat comfort-
ably with the judiciary because if judicial choice were to be accepted as part
of the interpretative process, this would entail personal accountability of
judges in their interpretation, application and enforcement of these laws.
However, this absolution from personal responsibility has been exposed as
'simply a jurisprudential figieaffor [the] inarticulate major premise [in South
African society]: ... white supremacy'. 37 During the 1980s judges came under
increasing attack for seeking refuge in pOSitivism in order to make difficult
legal choices, and the limited measure of change in judicial perfonnance
during that period can be ascribed to this criticism. 38
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Dworkin and the common law approach

According to critics of legal positivism such as Ronald Dworkin and Lon L
Fuller, there are areas of unsettled law far more extensive than the positivists
allow. Within these areas judges have greater scope to do justice than they
have traditionally admitted and in so rendering justice, they are rightly
influenced by moral arguments about good and bad law. 39 Dworkin rejects
the notion that the law is 'just there' in the conventional materials of the legal
system. 40 For Dworkin, law is an interpretive practice, not an objective or
subjective fact. For this reason, he also rejects the 'pragmatist view, that judges
should make deCisions that seem best for the community's future, not clinging
to precedent only for precedent's sake,:l
Interpretative practice is a matter of imposing a purpose on an object or
practice to make it 'the best possible example of the fonn or genre to which
it is taken to belong,.42 This requires that the legal analyst views law as

MJlbid.
37Dugard Human rights 498.
lSIbid 496.
39AS Mathews 'The South African judiciary and the security system' 1985 South Afrlcan
Journal on Human Rights 199 208.
~ Dworkin Law's empire (1986) 180.
41Ibid 7 95.
42Ibid 52.
 Working for progressive change in South African courts 267

serving a set of coherent purposes or prindples in tenns of which the rules

and details of practice must then be interpreted. 43
In hard cases judges are faced with a choice, and 'when the raw data do not
discriminate between ... two competing interpretations, each interpreter's
choice must reflect his view of which interpretation proposes the most value
for practice'. 44 Competing interpretations are balanced by asking which best
reflects the public standards of the community from the standpoint of political
morality.4' Although Dworkin admits that judges may differ on what the law
of their community really is,46 he does not believe that this in itself is an
objection to a particular judge's choiceY All that is required is that judges
believe there is a best (not necessarily a right) interpretation of their society's
morality, and that the law is structured to reflect this 'coherent set of
prindples about justice and fairness and procedural due process'. It also asks
that they believe that they are bound to enforce these principles in new cases
and, therefore, ensures that judges will feel bound by impersonal, and
existing, public nonns, rather than be free to decide as they feel personally
obliged to do. 48
At the basis of Dworkin's adjudicative method lies the principle of 'integrity'
- that each person's situation is fair and just according to the same
standards. 49 State offidals are bound by this prindple; it legitimises state
power, it ensures that citizens are treated by the state with 'equal concern'
and that 'equality before the law' is respected.'o When asking what the law
is, Dworkin argues, integrity is the decisive question.'! '[Pjropositions of law
[are only j true if they figure in or follow from the principles of justice, fairness,
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

and procedural due process that provide the best constructive interpretation
of the community's legal process'.H
This does not mean that a legal system may not include morally offensive laws.
The principle of integrity defines how laws are identified, not what they are.
Integrity is an issue independent of the substantive justice of the legal system
and its laws. H Integrity does not define the force of law. Immoral laws have
just as much force as moral ones. In this regard, when faced with competing
moral obligations, a judge is not under an absolute obligation to apply the law.
If a judge views a law as deeply immoral, he is faced with three choices:
enforce it, lie and say it was not the law after aU, or resign. ,4

43Ibtd 47.
""Ibid 52-53.
45Ibtd 52.
46Ibtd 256.
47Ibtd 444.
48Ibtd 243.
49Ibtd.
185.
soIbtd
218.
51Ibtd
225.
52Ibtd
219.
53Ibtd
54Dyzenhaus Hard cases 219.
 268 XXVIII elLSA 1995

Dyzenhaus finds this aspect of Dworkin's work unsettling. He argues that

Dworkin walks into the same trap as the positivists by insisting on an a priori
distinction between law and morality." Whereas the positivists face a
pragmatic contradiction between the authoritarian ideal with its conception
of 'law in fact' and the anti-authoritarian one which the positivists claim they
serve, Dworkin assumes a sharp distinction between integrity of the law and
the principles of justice and morality.'6
He does not reject Dworkin completely, however. Dyzenhaus builds principles
of justice and morality that go beyond integrity and equal concern into this
adjudicative model These principles are to be found in the common law
tradition. Legislators have the right to expect judges to treat their enactments
as authority only so long as their enactments comply with these standards. If
legislative decisions stray from these ideals, they lack both legal and moral
authority. Judges can strike them down as illegal and leave it up to the
legislature to try to find a legal way of implementing their policy objectives.'7
In hard cases judges must be guided by the 'sound moral principles embedded
in the common law'.'8 These principles include individual liberty and
standards of critical morality like fairness, reasonableness, and justice,'9 but
do not necessarily include those principles that happen to be 'contingent and
embedded' in the common law at any particular point in time. 6O The problem
is, as Dyzenhaus recognises, that these principles can be used to support a
range of actions and results, some morally good, others bad. Liberals,
socialists, feminists and others have rightly pointed out that the common law
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

is 'a bed of morally repugnant values'.61

Even if all individuals are considered equal by law, they live their lives in
relations of radical inequality.62 The idea of providing additional protection
to those who have traditionaUy been subjected to domination is considered
a violation of the principle of equality in western democratic systems. 63 In
relation to the pOSition ofthe worker, Engels has pointed out:
The labour contract is to be freely entered into by both partners. But it is
considered to have been freely entered into as soon as the law makes both
parties equal on paper. The power conferred on the one party by the

55Ibtd 249.
56Ibid 254.
"Ibtd 262.
5illbtd 157-58 256.
59Ibtd 4 53 143 202.
wlbid 267.
61Ibtd 267.
li2For an outsider's description of racial inequality In South Africa, see GL Lewis
'Bearing witness to evil: one student's account of a South African summer' 1992
Student Lawyer 31.
6lSee J Bakan 'Constitutional interpretation and social change: you can't alwar.; get
what you want (not what you need)' 1991 Canadian Bar Review 310 (hereafter
Bakan 'Constitutional Interpretation'); A Freeman 'Racism, rights and the quest for
equality of opportunity: a critical legal essay' 1988 Haroard Civil Rights-Civil
Uberties Law Review 295.
 Working for progressive change in South African courts 269

difference of class position, the pressure thereby broughtto bear on the other
party - the real economic position of both - that is not the law's business.
Again, for the duration of the labour contract, both parties are to have equal
rights in so far as one or the other does not expressly surrender them. That
economic relations compel the worker to surrender even the last semblance
of equal rights - here again, that is no concern of the law. 64
In the South African context, this attitude has been shown by Suttner to
disguise actual discrimination in criminal law where despite the fact that social
conditions in the townships predispose impoverished blacks to commit crimes
against property, the non-race, non-class construction of the common law is
applied by courts. 6} It is also well documented that the prosecution and
penalisation of black criminal offenders are discriminatory.66 Moreover, the
now repealed pass laws specifically constituted being 'black' as a condition for
criminality. A person was not required to carry a pass unless he was 'black',
and one could not be accused of failure to carry a pass unless one was
'black'.67
Formal equality, leading to domination and no equality at all, can also be
traced through court proceedings. For judicial decisions to appear just and
fair, it is necessary that as many people as possible believe that the outcome
of a particular case is appropriate. When the law is inherently biased towards
one party, courts attempt to deal with the situation by defining 'legally relevant
issues' very strictly and depicting proceedings as merely between individuals
or the state and an individual. 'The result tends to be that court cases are
denuded of much of their actual, most Significant social context'.68 For
example, the court cannot take note of the fact that an accused black worker
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is much more likely than a white person to appear as an accused for certain
offences. In instances such as the pass law cases, a race classification precedes
the 'individualisation'. After finding that this condition exists, the trial process
then proceeds to abstract and treat the accused as 'an individual wrongdoer
against society'.
In South African political trials where people were criminalised for belonging
to organisations that enjoyed wide support the court process did not enquire
what preceded the law criminalising certain actions or conditions. If the
accused was convicted of violent acts, the court did not ask whether the
person's acts were preceded by acts of repression by the state which may have
led the accused to conclude that such acts were an appropriate response. 69
Dyzenhaus concedes the historical point about common law prinCiples, but
proposes that the values of the common law are those that make it possible for
contingent values to be recognised as such. The values are, therefore, open

64F Engels tbe origin of tbe family, private property and tbe state (1972) 136.
6SR Suttner 'The Judiciary: Its Ideological role in South Africa' 1986 Journal of tbe
sociology of law 47 at 54.
""Ibid 55.
/j/lbid.
68lbid 56-7.
69Ibid.
 270 XXVIII CILSA 1995

to a process of revision and change. 'The more open the process is, the truer
it is to the spirit of the common law'.7o However, this 'openness', is exactly
what leaves common law values vulnerable. Where the Majoritarians rely on
a principle that might justify 'good' judges deferring to 'bad' governments, the
common law principles could just as easily justify 'bad' judges limiting the
activities of 'good' governments.
The problem with the common law approach, as Bakan has shown, is that
even if one were to accept that the common law model is more likely to lead
to just results in wicked systems, there is no assurance that it would lead to
better results in a different context. 71 Surely it is true that in a wicked legal
system, such as apartheid, any judicial attempt to avoid its harsh implications
may be justifiably praised? An activist, common law judiciary is able to
constrain the excesses of government better than judges who deny themselves
the jurisdiction to scrutinise bad intentions of bad legislatures and apply
legislation mechanicaUy.72 But can it be said that a positivist approach is
incapable of achieving similar results?
An example of the ameliorative effect of the common law approach can be
seen in the judgment of the Durban Local Division of the Supreme Court in
Metal and Allied Workers Union v State President. 73 Didcott J, generally
considered a common law judge, struck down several emergency regulations
that made it an offence to make 'subversive' statements. 'Subversive' was
defined as including statements likely to incite anyone to resist any official or
the government in 'connection with the administration of justice'.
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

Didcott J declared the regulation void for vagueness since it could lead to
absurd results. If applied on its face, the regulation would make any person
who says to another, 'Don't obey a subpoena to attend this civil trial', guilty
of a subversive statement. 71 He also declared a regulation depriving a
detainee of his right to a lawyer invalid. DidcottJ pointed out that the question
to be asked is whether the State President had the power to require a detainee
to get permission for any visit, even if that visit had nothing to do with the
state of emergency.7' Didcott held not, because the State President simply

70Dyzenhaus 'The disappearance of law' 244.

71In this regard see Joel Bakan 'Some hard questions about the hard cases question'
1992 University of Toronto Law Journal 504, 514. Bakan points out that Dyzenhaus
engages in speculation when he argues that an activist common law judiciarywould
have put the government to the choice. If it wanted to enforce its poliCies to the
full, it would have had to make it clear to South AfrIcans and the world that it
intended to make do without the rule of law. Dyzenhaus, says Bakan, implies that
the political costs of doing so would have deterred the government from enacting
evil laws. Bakan argues that, on a level of speculation, it was just as likely that the
message that South AfrIca was being governed by a wicked regime carried out by the
symbolism of a subservient judiciary as it was by common law judges forcing the
government to show its hand.
72Ibid 268.
73 1986 4 SA 358 (D) in Dyzenhaus Hard cases 164-65.
74Ibid 164.
75For example, if his or her landlord was seeking the detainee'S ejectment, he or she
needed to consult with a lawyer.
 Working for progressive change in South African courts 271

did not have the power to go beyond the wide powers of the enabling
statute. 76 It is important to note that Didcott J did not limit his decision to
'ordinary visits', but rather addressed a common law right which, 'in the eyes
of the law', was fundamentally important. n He did not base his decision on
the argument that security detention is so radically in conflict with the
principles oflaw that it could not have been the intention of the legislature to
deny detainees the benefit of their common law rights. According to Didcott
J nothing in the enabling statute authorised such a violation ofthe detainee's
rights, and even though there may be circumstances neceSSitating incarcer-
ation, this did not justify the total prohibition on access subject only to the
whim of an official. 78 In the tradition of the common law approach, Didcott
J had no choice because his interpretative method allowed him to recognise
only a construction that respected the common law right to counseL
But was the common law approach the only means available to ameliorate the
effects of apartheid? Could a positivist approach not have led to the same
progressive results in appropriate circumstances? Consider Hoexter JA's
dissent in Omar79 regarding a position similar to that in Metal and Allied
Workers Union which restricted access to a detainee by his or her lawyer. He
stressed that the audi alteram partem rule should be presumed to apply in
all cases where an official is empowered to make an order prejudicially
affecting the rights of another, unless there is a manifest intention to exclude
it. 80 That not being the case here, the rule should be applied. Moreover,
Hoexter ]A pointed to the anomaly that would arise if the right to counsel
were excluded in the case of a person detained for his or her own protection
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

in terms of regulation 3(1). It would be absurd to deny a detainee the

fundamental right to counsel if the only reason for the detention were his or
her own protection. Hoexter found such a result to be beyond the contempla-
tion of parliament and bad in law. 8 ! He found the statute ambiguous which
allowed him a discretion to 'fill in the gaps'. He chose to do this by deciding
in favour of the detainee. He would have reached the same result by holding
that he had no discretion and that he could only recognise a regulation that
complied with the common law.
In conclUSion, it would seem that the common law approach is no more likely
to lead to just results than the plain fact approach. Depending on the
circumstances of each case, just results may be obtained by applying either of
the two approaches when appropriate. However, either approach may also be
used to enforce an unjust legal system. Common law judges past and present
definitely deserve our praise for restraining the effects ofapartheid legislation,
but it is submitted that a common law approach did not lead to the downfall

76Imd 165.
77The Appellate Division acknowledged the existence of this right in South African
common law in 19B3 in Mandela v Minister of Prisons 19B3 1 SA (A) at 957.
78Dyzenhaus Hard cases 165.
79See discussion above at n 26.
@Illbid at 906~E.
8\Jbid at 909E-F.
 272 XXVIII elLSA 1995

of apartheid and a more activist judidary would not have been more
successful in achieving sodal change.
If we accept that South Africa has now finally rid itself of apartheid and that
the legal system is just, we still cannot say that the COmmon law approach is
the appropriate interpretative model to be applied. Under the Interim Bill of
Rights, all South Africans are guaranteed basic rights and freedoms such as
liberty, security, equality, the right of assembly, freedom of association and
freedom of expression. The danger exists that these rights will remain formal
pronouncements without real meaning. Lawyers and scholars wishing to work
for progressive social change should recognise this and direct their efforts not
at prescribing the 'correct' approach to be used, but at predicting the
approach a judge is likely to take given the social and historical context in
which he operates.

The South African social and historical context

When one speaks of the social and historical context in South Africa it should
be kept in mind that apartheid created distinct radal realities for its citizens.
For example, black South Africans in a socially, economically and politically
oppressed position experienced apartheid quite differently from whites. Now
that apartheid is over, we should always remember that these different realities
continue to exist and will have quite a different impact on judges, depending
on their race. It is to these realities we now tum in an attempt to provide
those who wish to work for progressive social change in South African courts
with some pointers.
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

According to Hunt the universalising feature of a capitalist state and legal

system is that it embodies the material interests of the ruling class and that it
presents law as the embodiment of the interests of the community as a
whole. 82 Not only did apartheid South Africa not attempt to present the
interests of black and white as realisable through the state, but it was an
integral part of the system that black and white aspirations were realised
separately. 8~
The previOUS social order was based, in the first place, on maintaining the
status quo: the domination of the white ruling bloc over blacks and other
South Africans of colour. Blacks were denied the right to self-detennmation.
They could not vote until April 1994. The cornerstone of apartheid was the
Population Registration Act,81 which required classification of the entire
South African population on the basis of race. Every person had to fit into one
of four racial categories. Of course, it goes without saying that apartheid was
based on the assumption that a person's status should be contingent on that
person's classification under the Population Registration Act. For blacks this
meant that by virtue of certain immutable characteristics they were considered
less worthy of social, economic and political rights. Any classification byvirtue

82Sutter n 65 above at 51.

83lbid.
84Population Registration Act 30 of 1950.
 Working for progressive change in South African courts 273

of qualities devoid of individual merit dehumanises people. It reduces the

individual to no more than part of a collective 'them', 'they', 'the Native',
'blacks' or 'whites', without personality or individual characteristics.
Apartheid was a system of racial segregation, discrimination, or oppression in
every aspect of human life: housing, employment, public accommodation,
health care, freedom of association, freedom of speech, and education.
Higgenbotham has pointed out that, as in the United States before the
landmark decisions in Brown v Board of Education,8' 'these forms of
segregation served, among other functions, as ways to stigmatize black people
as less than fully human'.16
lbrough the government's homelands policy, blacks were not only dispos-
sessed of the land of their birth, but were also deprived of their South African
citizenship. This had severe consequences for blacks. 87 It resulted in the
forced removal of blacks from white areas to the homelands, where jobs and
hOUSing were unavailable and poverty was rampant.88 Part and parcel of the
homelands policy was the system of influx control and pass laws. Blacks were
permitted to live in urban areas only when their labour was needed; otherwise
they were to live in the homelands. The principles and policies of this urban
regime can be traced to the latter part of the eighteenth century and the
beginning of this century when the stated policy was that' [t ]he Native should
only be allowed to enter the urban areas, which are essentially the White
man's creation, when he is willing to enter and to minister the needs of the
White man and should depart therefrom when he ceases so to administer'. 89
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

It is ironic that at the time when the 'separate but equal' doctrine90 was
rejected in the United States, 91 it was taken a step further in South Africa
through the Reservation of Separate Amenities Act92 which allowed any
person in control of public premises to reserve separate but unequal facilities
for different races. 93 Influx control was tightened under the Group Areas
Act94 and the Urban Areas Act. 9' The product of these laws, the township
or location, allowed ownership and occupation in certain areas only by

&s347 us 4B3 (1954).

MAL Higgenbothamjr 'Racism in American and South African courts: similarities and
differences' 1990 New York University law Review 479 4B7.
87JW Pitts II 'judges in an unjust SOCiety: the case of South Africa' 19B6 Denver
Journal of International law & Policy 49 54.
BBIbid.
89From the long title to the Natives (Urban Areas) Act 21 of 1923 in MA Green 'What
role can South African judges play in mitigating apartheid? A study of the urban
African legal regime' 19B7 Wisconsin law Revtew 325 329.
~ee Plessy v Furguson 163 US 537 (lB94). This case established the constitutionality
of the separate but equal doctrine in the United States.
91See Brown v Board of Education n B5 above.
92The Separation of Separate Amenities Act 49 of 1953.
93j Dugard Human rights 65.
94Act 67 of 1952.
95Act 25 of 1950.
 274 XXVIII CILSA 1995

designated groupS.96
Perhaps one of the most tragic social realities of apartheid is the imbalance in
education between white and black children. In 1953, Dr HF Verwoerd, then
Minister of Native Affairs and later Prime Minister, explained the introduction
of the Bill which later became the Bantu Education Act,97 by saying that the
system of 'Bantu Education' had been designed to prohibit the 'Bantu' from
being exposed to 'the green pastures of European SOciety in which he is not
allowed to graze'.9SUte government's policy of separate but unequal
schooling can be seen as evidence of its attempt to disempower blacks. 99 The
inequalities in education led black children to protest against their inferior
and separate education in 1976 and led to the Soweto uprising, one of the
seminal events in the struggle for South Africa's liberation. Today South Africa
is experiencing an education crisis. This crisis is illustrative of why, even now
that apartheid is over, it is important to remember the inequalities it created.
The social consequences of apartheid are our legacy and only if we come to
terms with and address them can we hope to achieve a more just society.
Between 1949 and 1987, marriage between 'Europeans' and 'non-Europeans'
was prohibited. loo The Immorality Act lOI outlawed sexual intercourse
between a white and a black person. These laws were the official recognition
of the racism of white South Africans and found reflection in the courts. Even
before their passing our courts adopted a condemning attitude towards the
children born of mixed relationship. In Moller v Keimoes School Commit-
tee,102 the Appeal Court rejected an application by the white father of mixed
race children to have the children reclassified and admitted to a 'whites only'
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

school saying that although

[a] certain amount of sympathy must naturally be felt for the innocent
children, ... the appellant has only him self to blame In this matter. It Is true he
mamed his wife before the Act was passed, yet he could hardly have been
ignorant of the conditions of life and race existing in a country like South
Africa. 103

Courts were just as influenced by the South African social and histOrical
context and in future the judges of the new South Africa will remain under this
influence. We would be well advised to keep this in mind in our quest for
social reform. Higgenbotham has pointed to instances of racism in South

96Berman described these townships as ' ... ghettos [that] have large rectangular blocks
convenient for military vehicles, and have only two entrances from city centres
[making] It appropriate also for police blockades'. F Berman 'A study of apartheid
law and its enforcement' 1991 Touro Journal of Transnational Law 1 28.
9'IThe Bantu Education Act of 1953.
li8AL Higgenbotham n B6 above at 579-80.
'l91bid. See also Berman n 96 above at 26-9. In 1990 per capita government
expenditure on black children's education was seven times less than expenditure
on white children. The pupil teacher ratio for blacks was 50: 1 and that of whites
20:1.
10000e Prohibition of Mixed Mamages Act 55 of 1977.
101 23 of 1957.
102 1911 SA 635 (AD).
IOOlbid 643-44.
 Working for progressive change in South African courts 275

African cOUrts. l04 He shows convincingly that these inddents are symptoms,
signals, and symbols of racism in broader society:
When racism occurs in courts, it is symptomatic of racist attitudes, myths, and
assumptions that constitute the ideology of socieui racism. Such instances of
courtroom racism also act as signals, in that they trigger and mobilise racist
attitudes and stereotypes in the minds of all courtroom participants, and may
affect the judgment and actions of the judge, jury, and attorneys at this and
other junctures in the case. Finally, racist occurrences in the court are
particularly powerful symbols, acting to reinforce, legitimate, and perpetuate
racism in broader SOciety. 101

South African judges who took judidal notice of the fact that black women
submit to rape more readily than white,l06and the comments by the then
Chief Justice of South Africa that black men often stab people for no reason,
'except for an apparent lust for stabbing,107 are illustrative of this pathology.
Despite such utterances, an outsider might have found it strange to discover
that the common law prindple of equality before the law was an oft repeated
refrain in South African courts during apartheid. All individuals are considered
equal before the law. This guarantee also exists in South African common law
and was articulated by Gardiner AJA in Minister ofPosts and Telecommunica-
tions:
Now I have said that it Is a fundamental principle of our law that in the eyes of
the law all men are equal. This is a principle to which our courts must give
effect, save where the legislature has made proviSion to the contrary. And in my
opinion it is a prinCiple which officials of the State must observe to the same
extent. lOB

However, as discussed earlier,t09 common law prindples are equaUy

Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

fungible. To acknowledge formal equality is a long way from giving the concept
any substantive content. As opposition to apartheid mounted, it became
necessary for the government to pass increasingly draconian security
legislation to maintain white dominance. HO It feU to the courts to interpret
these laws within the limited powers of review available to them. HI By the
end of the seventies, wide powers were conferred upon the executive by the

1G4AL Higgenbotham n 86 above 479-587.

105lbid 546.
I06R v A 1952 3 SA 212 (A) 216-7, R v M 1965 4 SA 517 (N) 578-80 discussed in AL
Higgenbotham n 86 above at 126.
lO7S v St Augustine 1980 1 SA 503 506 (A) in AL Higgenbotham n 86 above.
108 1934 AD at 187.
I09Note 61 above.
HOAS Mathews 'The South African Judiciary and the security system' 1985 South
Africanjournal on HUman Rights 199 200; J Dugard Human rights 146-365.
IIISee H Lurie 'Human rights and internal security in South Africa' 1990 Western State
University Law Review 357-58. Under the doctrine of parliamentary supremacy that
held sway in South Africa, courts limited themselves to the interpretation of
parliamentary intent in determining the validity of a statute. The only areas where
the power of judicial review were exercised was in respect of subordinate legislation
and administrative action. The emergency regulatiOns of the 1980s were promul-
gated by the State President as subordinate legislation; the regulatiOns, and the
actions taken in terms thereof, were therefore open to review by the courts.
 276 XXVIII CILSA 1995

Suppression of Communism Act,1I2 the Internal Security Act, m the Public

Safety Act ll4 and Criminal Law Amendment Act. 11.5 These included:
(1) the power to detain Indefinitely; (2) the power to proscribe organizations;
(3) the power to ban Individuals; (4) the power to ban all meetings. gatherings
and processions; (5) the power to prosecute under dragnet securin;Crimes; and
(6) the power to impose censorship and suppress information'. I 6
During the 1980s, the government became even more authoritarian. In 1982,
as a result of repeated calls of a judicial inquiry into the implementation of the
security laws,117 the government relented and a commission, under the
chainnanshipJustice PJ Rabie, who was later to become the ChiefJustice. was
appointed to examine the legislation relating to the protection of internal
security."8 Despite wide criticism from the organised legal profession ll9
about the complete inadequacy of safeguards for detainees proposed by the
commission, the government accepted the recommendations and imple-
mented the Internal Security Act of 1982.120 The Rabie report elicited the
following comment from the then Minister of Law and Order:
[A] judiCial commission has established the principle beyond all doubt once
and for all that the people responsible for national security must be the sole
judges of what national security requires, ... 121

The new Internal Security Act provided for four types of detention: (l) a
180-day detention period for a witness;122 (2) short-term detention provi-
sions for fourteen days;12l (3) detention for interrogation purposes;l24 and
(4) preventative detentionY-' By 1985, the sustained anti-apartheid upris-
ings has escalated to such an extent that the government proclaimed a state
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

of emergency, first in the Eastern Cape and then nation wide. This continued
until 1990. With the declaration of the state of emergency, the number of
persons detained under both existing legislation and the new emergency

1I2Act 44 of 1950, later revamped and renamed the Suppression of Communism Act.
IIlAct 79 of 1976, after the 1976 Soweto uprising.
lI'Act 3 of 1953.
lISAct 8 of 1953.
116AS Mathews n 110 above at 200.
117Particularly after the death of Steve Biko in September 1977 and the security action
of the same year.
1I8Dle verslag van die Kommlssle van Ondersoek na Veiligheidswetgewing R P90 1981
in J Dugard 'A triumph for executive power an examination of the Rabie report and
the Internal Security Act 74 of 1982' 1982 Soutb African Law Journal 589 590.
119Ibid 602. Protest came from the Association of Law Societies of South AfrIca, the
General Council of the Bar of South Africa, Lawyers for Human Rights and the
Centre for Applied Legal Studies.
120Act 74 of 1982.
121Quoted in Dugard n 119 above at 603.
122lnternal Security Act s 31.
l2JIbid s 50.
12<Ibid s 29.
125Ibid s 28.
 Working jor progressive change in South African courts 277

regulations rose sharplyy6

It would have been naive to believe that South African judges would be
immune to the apartheid system. They were, after all, part of the South African
social context and many of the battles in the war between apartheid and its
opponents were fought in the courtroom. 127 Could it be possible for the
judiciary to remain neutral adjudicators in this war? It must be accepted that
the judiciary, along with all South Africans, must have been affected by the
level of social and political upheaval and polarisation during the apartheid era.
On appellate level scholars have pointed to the relative geographic isolation
of Bloemfontein and the judiciary's constitutional pOSition as third branch of
government. TIlls, together with the official versions of news events propa-
gated by the pro-government broadcast media and the commercial press,
would have succeeded in convincing judges 'that circumstances called for a
plain fact approach and dictated that ... the interests of the individual would
have to bow before the continued viability of the state as they perceived
it'. 128
Others had less sympathy with judges' management of security legislation and
directly charged them with actively supporting executive overreach. In the late
1980s, Mureinik came to the conclusion that the Appellate Division's concern
with the principles of law had been overestimated, and that its determination
to suppress progressive developments in the lower divisions had been
underestimated. 129
What is even more disconcerting about South African courts during the latter
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

part of the 1980s is not that plain fact judges refused to take social reality into
account, but that they were willing to impose their own versions of that reality
on proceedings; versions that smacked of the government's 'total onslaught'
propaganda. Commentators expressed shock at Steyn]'s description of the
situation in the country and his infamous words in Bloem v State Presi-
dent no that the violent resistance in the country had become so notorious
that the court could take judicial notice of it. The partisan political nature of
these utterances and openness with which a Supreme Court judge was
prepared to express his support for the apartheid system was severely
criticised as insensitive to, or ignorant of, the very different perceptions of
those before the court and many other South Africans. The facts of which
Steyn J took judicial notice lay at the heart of the political conflict in South

126L Berat 'The South African judicial)' and the protection of human rights: a strategy
for a new South Africa' 1991 Temple International & Comparative lawJournal 181
192.
mIn this regard see the battle between the Appellate Division and the government
over the removal of coloured voters from the Cape voters roll Harris v Minister of
tbe Interior 1952 2 SA 428 (A), Minister of tbe Interior v Harris 1952 4 SA 769 (A),
and Collins v Minister of tbe Interior 1957 1 SA 552 566 (A).
128 0 Davis & H Corder 'A long march: administrative law in the Appellate Division'
1987 Soutb African Journal on Human Rigbts 281 297.
129E Mureinik 'Pursuing principle: the Appellate Division and review under the state
of emergency' 1989 Soutb African Journal on Human Rigbts 60-6l.
110 1986 4 SA 1064 (0).
 278 XXVIII CILSA 1995

Africa and sent the message to citizens that the Appellate Division was firmly
aligned with the government's version of events in the country. 01
The views of Steyn were echoed by the words of Rabie Cj, when in an
interview, m he expressed the view that the Internal Security Act was
justified by the violent onslaught from outside the country. The ChiefJustice
aligned himself squarely with government propaganda by stating that 'we must
get information from people we arrest, especially when they are carrying
weapons from the Soviet Bloc, otherwise we can't defend ourselves ... The
situation in the country is pretty near that of civil war .,. [and] it is naive to
think you can quell it by bringing people to court'.
Criticism against 'executive minded' judges was, however, not a new trend,
especially with appointments to the Appellate Division. The appointment ofLC
Steyn as Chief Justice in 1959 over the heads of other, more experienced
judges led to charges that Steyn was 'the man marked out by the new
[apartheid] regime to be its chief judicial officer'. 133 Although these charges
were laid in the early 1980s their implied reference to the contemporary
judiciary and its alliances was not lost. 134 Another incident that elicited
fierce criticism was the appointment early in 1987 of retired Chief Justice
Rabie, as Acting ChiefJustice for a period of two years, leading to speculation
that he 'possessed certain personal capacities which made it essential that he
and no one else should occupy the post for the next two years'. m

Conclusion
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A problem facing progressive lawyers across the world is the affinity that exists
between attitudes and beliefs of judges and the interests of litigants who
represent the social and economic elite. Time and time again this has been
attributed to the fact that judges themselves come from elite backgrounds and
social positions. l36 This is true of judges in apartheid South Africa too.
Judges were exclusively white, male, wealthy and always lawyers. They were
therefore subject to all the prejudices and fears of white South Africa. 137
They were appointed by the State President from the ranks of senior members
of the Bar and enjoyed security of tenure until the age of seventy. Dugard has
pointed out that in the case of the Transvaal Supreme Court judges were in the
main appointed from the Pretoria Bar and not its neighbour in
Johannesburg. 138 The Pretoria Bar has been described as one of the 'most

mC Forsyth 'The sleep of reason: security cases before the Appellate Division' 1988
Soutb African Law journal 679 706.
132Published In 1be Sunday Star 3 May 1987.
mE Cameron 'Legal chauvinism executive mlndedness and justice LC Steyn's Impact
on South African law' 1982 Soutb African Law journal 38 40.
Il-4A Van Blerk 'The Irony of labels' 1982 Soutb African Law journal 365.

mE Cameron 'Nude monarchy: the C2Se of South African judges' 1987 Soutb African
journal on Human Rigbts 338 345.
l~ee Bakan 'Constitutional interpretation' and the literature referred to at 318 n 29.
I37JW Pitts II n 87 above at 64.
118J Dugard 'The judiciary and national security' 1982 SoutbAfrican Lawjournal655
658-659.
 Working for progressive change in South African courts 279

conservative bars in the country' and although it would be a generalisation to

state that all Pretoria lawyers are conservative and all Johannesburg lawyers
liberal, it would be fair to say that one was likely to find 'more conservative,
executive-minded and fonnalist advocates in Pretoria' .139
Now that apartheid is over, judges from across the racial spectrum are being
appointed to all courts, including the Constitutional Court. The social and
historical context within which these judges will make their decisions will
differ from that of their white colleagues. Lawyers should appreciate these
realities if they wish to work for progressive social change in South African
courts. They need to abandon the prescriptive focus of asking what courts
should do, given the interpretative possibilities of South African law. As we
have shown above,140 both the plain fact and the common law models of
interpretation are content-neutral in that contingent values can mould them
depending on the interpreter's own personal value system.
With a new era dawning in South Africa, and particularly with the introduction
of a bill of rights, judicial interpretation is in need of an overhaul. It is suggest
that a proper account of the role of the bill of rights and all existing law in
progressive social change demands an approach beyond prescriptive analysis
to consider what courts are likely to do with the bill given their historical and
political context. Any inquiry into judicial review under the bill of rights will
have to take into account the limits and influences imposed upon the courts
by the turbulent social and economic relations that fonn the backdrop to the
hill. I have attempted to point to some of these constraints and pressures as
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2009).

a first and crucial step towards understanding how the bill of rights and the
existing body of South African law may be used, either on its own or in
conjunction with other strategies, to pursue progressive goals. It would be
naive to think that we can work for a just society through our imaginative legal
arguments alone.

1l91bid.
I40At n 36 and 61.