Article by Sydney Kentridge
The phrase "theories and realities" naturally suggests a contrast, if not a conflict. To an American reader, no doubt, it brings to mind the contrast between the great and broad statements of the Declaration of Independence and the decision in Dred Scott, or between the promises of the fourteenth amendment and the realities of the "separate but equal" doctrine. Or, to change the period and the continent, and to move to extremes, it may remind us of the Uganda Constitution of 1966, which enshrined the independence and security of the judges of the High Court, but which did not prevent the Government of Uganda from kidnapping and murdering the Chief Justice. In South Africa, there are no such stark and dramatic contrasts between high-sounding guarantees in constitutional instruments and judicial or executive practices which ignore them. This is not merely because there are no Uganda-type extremes of state lawlessness in South Africa; it is because there are no constitutional guarantees, high-sounding or otherwise. South Africa has no Bill of Rights. Indeed, with the exception of a provision for the equality of the English and Afrikaans languages, the South African Constitution has nothing at all to say about rights. What South Africa does have, under its written constitution, is a sovereign parliament of the Westminster style. As a result, the constitution itself may be changed as easily as any other act of parliament. And no act of parliament may be declared invalid by any court—regardless of whether it invades elementary human rights or on any other ground. Section 59(2) of the Constitution Act states: "No court of law shall be competent to enquire into or to pronounce upon the validity of any act passed by parliament. . . ." As the various Divisions of the Supreme Court of South Africa, including the highest court, derive their jurisdiction from this same act, it follows that they must give full faith and credence to this clause.
This principle of constitutional law precludes the South African courts from invalidating any act of parliament however drastically it might infringe even the most fundamental of human rights. This reality has been pointed out by many South African judges, with varying degrees of enthusiasm. In Sachs v. Minister of Justice, Chief Justice Stratford stated that it is a "plain principle that Parliament may make any encroachment it chooses upon the life, liberty or property of any individual subject to its sway, and that it is the function of courts of law to enforce its will." Yet any lawyer will understand that the role of the judiciary, even in a parliamentary system, need not be an entirely negative one. South Africa is a "legal" state. Those who govern it believe, in their own way, in the forms of law. When the South African government wishes to restrict the rights of its citizens, it does so by passing laws. In the absence of an entrenched Bill of Rights, however, what are the rights of the citizen which these laws would take away? The answer is that the common law of South Africa assumes that individuals have certain basic rights, which the courts will recognise as long as parliament has not done away with them. South Africa is a civil law system. Its common law is the Roman-Dutch law, a system in which individual liberty and equality are valued as much as they are in the common law of England. Thus, the Roman-Dutch law recognises the basic right to liberty and enforces it by a simple procedure equivalent to habeas corpus. Further, surprisingly perhaps to those aware of the long tradition of colour discrimination in South Africa, the Roman-Dutch law recognizes the equality of all citizens before the law. Johannes Voet, the greatest and most frequently quoted of the Roman-Dutch institutional writers, says that the law "preserves equality and binds the citizens equally." It is under the common law flowing from this tradition that the courts have been able to give some degree of protection to human rights. They have been able to do so in two ways.
The first is through operation on subordinate legislation, as distinct from the enactments of parliament itself. South African courts have frequently stated that municipal by-laws or government regulations which operate unequally as between different classes of the population are invalid unless the inequality is clearly authorised by an act of parliament. For example, in 1915, the Transvaal Provincial Division of the Supreme Court held that the Johannesburg Municipality, which was authorised to work tramcars for public use, was not entitled, in the absence of specifically empowering legislation, to set aside tramcars for the sole use of black or coloured persons. Another example: a railway's regulation had reserved a portion of certain trains for the exclusive use of whites. Persons of colour were not allowed to use that reserved portion, but whites could use any part of the train. Blacks, but not whites, were subject to criminal sanctions under the regulations. The Appellate Division held that as the regulation had brought about partial and unequal treatment as between whites and nonwhites, and as such treatment was not authorised by the act of parliament under which the regulation was made, any such action taken under that regulation was void. The question in such cases, as Chief Justice Centlivres put it, was whether the governing act of parliament authorised inequality; if it did not, the courts would intervene to invalidate unequal treatment. It must be noted that the potential for the protection of rights resulting from this form of judicial action was very much cut down by the Reservation of Separate Amenities Act, 1953. That act provided not merely that public premises or public vehicles could be reserved for the exclusive use of persons belonging to a particular race, but also that such reservation could not be invalidated on the ground that the premises or vehicles reserved for one race were not equal to those reserved for any other race.
The second means of providing some protection for human rights has been through application of the rule that statutes must, where possible, be interpreted in favorem libertatis. One of the greatest of South African judges, Sir James Rose-Innes, said, in 1920: "It is a wholesome rule of our law which requires a strict construction to be placed upon statutory provisions which interfere with elementary rights. And it should be applied not only in interpreting a doubtful phrase, but in ascertaining the intent of the law as a whole." And a distinguished judge of appeal crystalized these principles by averring that the courts had the duty "to serve as buttresses between the Executive and the subjects."
Here, at least, is a positive theory. It is the theory that the courts are to act as a buttress between the executive and the subject. They are to do this by ensuring that wherever parliament has left its intention in any doubt, that doubt is to be resolved in favour of liberty and equality; and by invalidating regulations which introduce an inequality not expressly authorised by parliament. It follows that here we have two fields in which meaningful comparisons can made between reality and theory.
How do the courts in the apartheid state carry out these functions? And to what extent, in practice, are the courts able to give protection to the citizen and, in particular, the black citizen, when the bureaucracy, including the police, acts unlawfully so as to deprive him of his legal rights? These questions may be answered by reference to what can be defined as elementary human rights. This account will not include such rights as the right to vote or to social security or to non-discrimination in employment, but shall discuss such rights as the right to personal liberty, to freedom of speech, and to freedom of movement and residence within one's own country. There are so many statutes which encroach upon human rights in South Africa, particularly the rights of black persons, that it would be hard to achieve completeness even within the covers of a book. Accordingly, the survey shall be confined to a few illustrations which will give some idea not only of the reality of law in South Africa but of the reality of life in South Africa, particularly for those who are black, and for those who do not acquiesce in the system of apartheid.
Without anticipating any particular conclusions which might be drawn from the cases, the behaviour of the courts does not show any uniform pattern. Court decisions reflect the moral and political contradictions of white society in South Africa; on the one hand its fears and prejudices and its authoritarian tone, and on the other hand, its residual respect for the values of the legal system and, perhaps, its dim perception that freedom may indeed be indivisible. While it may be found that there have been some great judicial victories for human rights in South Africa, there are also evidenced some abysmal judicial failures to extend protection when it might have been possible and just to do so.
About the Author
Sydney Kentridge. B.A., University of Witwatersrand; M.A., Oxford University; Barrister, Johannesburg, South Africa.
Citation
56 Tul. L. Rev. 227 (1981)