Honeysuckle on a guillotine

The rule of racism in South Africa was not the least remarkable for the respect, even reverence, with which the rulers regarded the law. It was this that accounted for their devotion to legislate in such incriminating detail every last indecency of apartheid. Subterfuge might have served them and their apologists abroad rather better.

Without a constitutional bill of rights, the sovereignty of parliament was effectively absolute. The whites who alone occupied all levels of the judiciary were in general either predisposed to sustain a regime representative of their own interests and prejudices or, despite their reservations, disinclined to confront it.

Yet, on particular occasions, some of them took a different course. In the appeal brought by the New Nation against its ban under the sweeping censorship laws, Justice Curlewis of the supreme court found for the state, but in embarrassing terms. "It is, of course, clear that censorship on the grounds set out in the regulations is a political act. The short answer is that the minister does not give reasons why he formed an opinion that certain matter offended. And, of course, censorship is very like a guillotine, and there is very little use in growing honeysuckle over a guillotine."

A few judges, and not always those suspected of relative liberalism, went further, to frustrate the government. Following the outbreak of popular insurgency in the Johannesburg black township of Alexandra, five residents were charged with sedition, subversion and treason. Justice Piet J. van der Walt not only ruled out the death penalty by deciding to sit without assessors; he accepted an invitation from the defence to visit the township.

It was a visit that must have made a great impact on him. For he began his judgment by citing the squalid conditions in the township as "reason why the community was dissatisfied and developed a lack of trust and faith in the authorities". And he proceeded to political observations unprecedented from a judge in the apartheid era. "Black citizens of the republic do not have a vote in the process of election of members of parliament I While white South African citizens may have a demo-cracy, black South Africans certainly do not share in it." He not only acquitted the accused on all three charges, but condemned the state for having brought the charge of treason in the first place. "Where the ideas and political aspirations of those charged are part of the issue I with I grievances and aspirations I in most case legitimate I a charge of treason should be very carefully considered and reconsidered before it is brought before a court."

Such judgments, all the more influential for their rarity, served to promote doubt and dissent in a white population of increasing disquiet. During the state of emergency, Justice J. P. G. Eksteen granted an interim interdict against security police in Port Elizabeth who were routinely assaulting and torturing detainees. The affidavit of a young white doctor was crucial in procuring this rare judicial intervention on such an issue, and the white press gave widespread coverage to the extent of abuses whose very existence the government indignantly denied. If this did little to stop the abuses, it materially damaged the claim that the regime was one committed to the rule of law.

In one case, judges rebelled because the regime took their compliance so far for granted as to affront dignity. A majority in the appellate division ruled against mandatory harsh sentences passed on two young whites who had refused military conscription. Such sentences, they held, reduced "the court's normal sentencing function to the level of a rubber stamp".

Yet success in the courts could come too late. Black trade unionists achieved a technical victory against a British-owned company in Natal, but after the workforce had been displaced by another, involved with the Inkatha-based company-backed union. Or success could be stopped in its tracks. At the end of a related inquiry into murders committed by members of Inkatha in the company town of Mpophomeni, the magistrate named those members she held responsible, for submission to the attorney general. No one was accordingly charged.

Success might directly promote reform, as it did when the courts upheld two challenges to the operations of the pass laws. Sometimes success amounted to sufficient delay, until reform provided rescue. This was so with popular resistance in the Moutse District of the Northern Transvaal against incorporation into the KwaNdebele Bantustan, and with that in Oukasie, a black township close to the white industrial city of Brits, north of Pretoria, whose residents refused to be settled elsewhere.

Nor was failure necessarily final. Successive judgments upheld the right of the state to move the Magopa people from their lands in the western Transvaal. Forcibly removed, members of the tribe kept returning, until return came to be conceded by the retreat of apartheid.

Richard Abel, who teaches law at University of California at Los Angeles, knows and shows that essentially it is not law that makes politics, but politics that makes law. Success in the courts was not only due to the courage of particular plaintiffs and witnesses, the commitment and ingenuity of particular lawyers, the exercise of independence by particular judges. The changing context, under pressure from international sanctions, black insurgency and the growth of dissent within Afrikanerdom itself, proved a decisive factor. Judges became bolder as the regime seemed more vulnerable, and the government, demoralised by disrepute and doubt, took to accepting hostile decisions in the courts rather than legislating to negate their effects.

Abel's study is a valuable contribution to its subject. The style is in general sprightly and sometimes reaches with passion to eloquence. Vivid sketches of the main participants give a dramatic dimension to the various cases with which the study deals.

Nor is Abel's perceptiveness confined to the past. A coda of unease considers the preoccupation of the post-apartheid regime with constitutional architecture.

"A bill of rights and judicial review undoubtedly will make a difference (although there is reason to fear that whites will be more effective in using it to defend the privileges they gained during apartheid). Law may prove much less useful in attacking the oppressions of class than it did in challenging racism."

Ronald Segal, South African political activist, was founding editor of the Penguin African Library; his latest book is The Black Diaspora.