Human Rights and the South African Legal Order

Human Rights and the South African Legal Order

John Dugard
Copyright Date: 1978
Pages: 496
https://www.jstor.org/stable/j.ctt13x169k
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  • Book Info
    Human Rights and the South African Legal Order
    Book Description:

    As an Advocate of the Supreme Court, John Dugard observes the South African legal order daily in operation. In this book he provides a thorough description and probing analysis of the workings of the system. He places South Africa's legal order in a comparative context, examining the climate of legal opinion, crucial judicial decisions, and their significance in relation to contemporary thought and practice in England, America, and elsewhere. He also considers South Africa's laws in the light of its history, politics, and culture.

    Originally published in 1978.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-6812-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Preface
    (pp. xi-xiv)
    John Dugard
  4. Acknowledgments
    (pp. xv-xvi)
  5. Abbreviations
    (pp. xvii-xx)
  6. Part One: THE LEGAL FRAMEWORK
    • 1 Introduction
      (pp. 3-13)

      This is a study of the South African legal system and of the part it plays in the South African body politic. The emphasis is upon law and not politics. No attempt is made to describe or to examine the political structure except in so far as it impinges upon the legal process. The reader in search of a comprehensive study of the “South African problem” is advised to read one of the many excellent texts on modern South Africa.¹ What follows in this chapter is no more than a thumbnail sketch of the peoples of South Africa, their method...

    • 2 Parliamentary Supremacy in South Africa
      (pp. 14-36)

      Much of the present study will be devoted to a description of the laws of South Africa that most seriously offend basic human rights and to an examination of the judicial interpretation of these laws. All these laws have been enacted by the South African Parliament and may not be tested by the courts. The principle of the supremacy of Parliament is therefore the starting point for any examination of human rights in South Africa. The American lawyer, reared in the tradition of judicial review of legislation, will find it difficult to understand the structure and functioning of the South...

    • 3 The Rule of Law
      (pp. 37-50)

      In Britain the principle of parliamentary supremacy is qualified by the doctrine of the Rule of Law. According to this doctrine certain legal values, notably equality before the law and freedom from arbitrary governmental action, are part of the fabric of the British Constitution, and as such should be, and generally are, respected by Parliament. In South Africa critics of the National Party Government have frequently invoked the Rule of Law in support of their efforts to restrain the excesses of parliamentary supremacy. But the Government has generally rejected these pleas and prefers to accept the British principle of parliamentary...

  7. Part Two: HUMAN RIGHTS AND THE LAW
    • 4 The Law of Apartheid
      (pp. 53-106)

      Since 1948 South Africa has achieved notoriety for its policy of apartheid or racial separation. Personal freedom, freedom of movement, and freedom of speech have been drastically curtailed during the same period, but generally these restrictions have been imposed in the furtherance of apartheid or in the maintenance of the existing segregated society. In essence, therefore, it is the policy of apartheid that has brought South Africa into international disrepute.

      Racial segregation is no new phenomenon, and South Africa is certainly not the only state guilty of this practice. What distinguishes South Africa from other societies, however, is that racial...

    • 5 Freedom of Person
      (pp. 107-145)

      The English concept of the Rule of Law, it has been suggested, is too narrow and too uncertain a yardstick by which to judge modern South African legislation. This is especially true in the case of any study of personal freedom, as it is impossible to grasp the extent to which this freedom has been eroded in South Africa unless the phrase “freedom of person” is given greater particularity by reference to national Bills of Rights and international covenants on human rights.

      “Freedom of person” is the term used to describe the most basic features of individual freedom: the right...

    • 6 Freedom of Speech, Association, and Assembly
      (pp. 146-202)

      Freedom of speech, and the related freedoms of association and assembly, are essential features of a democratic state. Veteran civil libertarian, Thomas Emerson of the Yale Law School, has stated that free speech is necessary for four reasons: first, to assure individual self-fulfilment, second, to search for the truth, third, to secure the participation of members of society in social and political decision-making, and fourth, to maintain the balance between stability and change in society.¹ The final reason advanced by Emerson is of particular importance for, as Mr. Justice Douglas pointed out in his dissenting opinion inDennis v. United...

  8. Part Three: THE POLITICAL TRIAL
    • 7 The Political Trial I
      (pp. 205-249)

      One of South Africa’s legal fictions claims that there is no such thing as a “political trial.” According to this fiction, where a person is tried for an offence with a political element, he is tried for a breach of the law of the land in the same way as an ordinary criminal. Consequently, there are no “political trials,” as distinct from ordinary trials, to which special considerations apply.

      At best this is a naive approach. As Otto Kirchheimer states in his seminal work,Political Justice: The Use of Legal Procedures for Political Ends:

      Throughout the modern era, whatever the...

    • 8 The Political Trial II
      (pp. 250-276)

      Inevitably there will be some scepticism on the part of the public regarding the political trial. For this reason a government should remove all suspicions of trial “rigging” by ensuring that there is no relaxation of the procedural standards of fairness required in ordinary criminal proceedings. It should heed the warning of Kirchheimer that “[s]ince the violation of procedural guarantees is visible to all, the image-creating purposes of the proceedings are jeopardized”¹ by any tampering with the rules of due process.

      South African history provides several examples of procedural deviations in political trials. The prosecution of Langalibalele in 1874² for...

  9. Part Four: THE JUDICIAL PROCESS AND HUMAN RIGHTS
    • 9 The Judiciary and Criticism of the Courts
      (pp. 279-302)

      An independent and fearless judiciary is as indispensable to the protection of human rights in a legal order without an entrenched Bill of Rights as it is to a system such as that of the United States, in which the judiciary is empowered to exercise judicial review over legislative enactments to determine whether they comply with the provisions of a Bill of Rights. In fact the judiciary may have a more important role to play in the South African-type system where there are no legislatively defined human rights and it is left to the judiciary to declare these rights in...

    • 10 Race, Security, and the Judges
      (pp. 303-365)

      It would be both unfair and unscientific to attempt to judge the South African judges in respect to their application of race and security laws as it is impossible to present an overall picture of their performance. Most offenders under the “laws of apartheid” are tried by magistrates, whose decisions are not reported, and only a few of the Supreme Court cases involving these laws are reported in theSouth African Law Reports or Prentice-Hall Weekly Legal Service. Consequently, the data required for a comprehensive study of this kind is simply not available.

      On the other hand, it is possible...

    • 11 The Judicial Process: A Critical Assessment
      (pp. 366-388)

      Critics of the South African judiciary have been accused of failing to understand its role in the legal process.¹ Calls for an active and conscious interpretation of the law in favor of racial equality and individual liberty, it is argued, display an ignorance of the fact that the South African judge, unlike his American brother, does not make the law but only declares it. He is a politically neutral figure, like the mythical perfect English judge, who is required to declare the law and not to sit in judgment on matters of policy. Critics are constantly reminded that the Justices...

  10. Part Five: A NEW APPROACH TO LAW
    • 12 A New Approach to Law
      (pp. 391-402)

      The apartheid order is a legal order. Fashioned by politicians, it has been applied by lawyers. No South African lawyer has escaped the contamination of this order, which has infected judges, magistrates, prosecutors, advocates, attorneys, and academics. This is not to suggest that lawyers—other than those lawyers in Parliament who conceived the laws—are to blame for the system or even that, as a body, they have collaborated with it. It is true that some lawyers have exploited the laws of apartheid in the furtherance of Government policy, and that a smaller number has opposed these laws in word...

  11. Bibliography
    (pp. 403-420)
  12. Table of Statutes
    (pp. 421-434)
  13. Table of Cases
    (pp. 435-444)
  14. Index
    (pp. 445-470)
  15. Back Matter
    (pp. 471-471)