Judicial recognition of the independence of Bophuthatswana

Author(s): John Redgment

Source: The Comparative and International Law Journal of Southern Africa , JULY 1989
, Vol. 22, No. 2 (JULY 1989), pp. 233-237
Published by: Institute of Foreign and Comparative Law

Stable URL: https://www.jstor.org/stable/23248373

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

is collaborating with JSTOR to digitize, preserve and extend access to The Comparative and
International Law Journal of Southern Africa

This content downloaded from

130.209.157.48 on Thu, 27 Oct 2022 17:36:09 UTC
All use subject to https://about.jstor.org/terms
Judicial recognition of the independence
of Bophuthatswana
John Redgment

Professor of law, University of Bophuthatswana

Introduction
A lengthy trial is being held at Mmabatho in a specially built
courtroom. The allegations arise out of the events of 10 February 1988,
when there was an attempted coup d'état. One hundred and ninety-five
accused were charged with High Treason. Their counsel1 pleaded2 that the
indictment disclosed no offence. His argument was that treason can only
be committed against a state possessing majestas, that is, a sovereign state.
He argued that Bophuthatswana is not independent, not sovereign and
accordingly no offence was disclosed in the charge. Friedman J gave a
lengthy judgment dismissing the special plea: the judgment is recorded as
S V Banda CC 63/88 and has not yet been reported. What follows is a
summary of the judgment.

Synopsis
It is accepted that in Roman-Dutch law, and here the common law of
Bophuthatswana is the same as that of the Republic of South Africa,
majestas is synonomous with sovereignty. To constitute treason, the entity
against which the hostile intent is directed must be a state having
sovereignty. The state must possess internal and external sovereignty,
without challenge and without being subject to the jurisdiction or decision
of any external entity. Internal sovereignty is the more important. The law
making and law enforcing authority is essential to the existence of a state.
Voet stated that treason can only be committed against a state or ruler
which recognises no superior in its own territory.3

The crisp question was whether Bophuthatswana is a sovereign

independent4 state. Bophuthatswana evolved from parts of the Cape
Colony and the Republics of the Transvaal and Orange Free State, through

'John Dugard, professor of law at the University of the Witwatersrand, Director of Centre
for Applied Legal Studies.
2In terms of s 85(l)(c) of the Criminal Procedure Act 51 of 1977.
3Superiorem in suo territorio haud agnoscentem - cited by Innes CJ in Rex v Christian 1924 AD
101 at 106-107.
4The tautology comes from the statutes and the authorities.

This content downloaded from

130.209.157.48 on Thu, 27 Oct 2022 17:36:09 UTC
All use subject to https://about.jstor.org/terms
234 XXII CILS A 1989

self-government as a 'national territory to the Status Act5 in ter

which the Republic of South Africa declared that it (the RSA) 'shall c
to exercise any authority over the said territory'.6 The Constitution
provided that Bophuthatswana 'is a sovereign independent state'.

A feature of sovereignty is the right of a state to deal with its o

territory, allocating portions to a specified group and granting in
dence to the newly created sovereign state. In this manner former col
eg of Britain and France, became independent states.

There are two theories as to the determination of sovereignty

constitutive theory and the declaratory theory. The former is found
recognition: the act of recognition is constitutive of the interna
personality of the entity in question. The latter regards recognition
formal acknowledgment of facts which must exist, eg a perma
population, defined territory and so on. The act of recognition do
bring an entity into being which does not previously exist. Each theor
its supporters among the writers and experts on international law.

The judge accepted the requirements set out in the Montevi

Convention8, noting that the Convention has been adopted by a C
ence of American States. Article 1 provides that: 'The State as a pers
international law should possess the following qualifications:

(a) a permanent population;

(b) a defined territory;

(c) government; and

(d) capacity to enter into relations with other states.'

Article 3 specifically stated: 'The political existence of the St

independent of recognition by the other states. Even before recogniti
State has the right to defend its integrity and independence, . .

It was thought that the greater number of expert support is for

declaratory theory, besides the clear choice in the Montevideo Co
ion. Arbitrariness and political expediency rather than objective c
characterise the recognition theory. The USA did not recognise
People's Republic of China until 1979, although its government ha
in power since 1949, recognising instead the government of Taiw
entity itself not recognised by other states.

5The South African Status of Bophuthatswana Act 89 of 1977, passed by the legisl
the RSA.
6Sub-s (2) of s 1, the 'territory' being detailed in Schedule A.
7The Republic of Bophuthatswana Constitution Act 18 of 1977, passed by the legislature of
Bophuthatswana.
8Montevideo Convention on Rights and Duties of States 1933, adopted by the 7th
International Conference of American States. See American Law Institute-Restatement of
the Law.

This content downloaded from

130.209.157.48 on Thu, 27 Oct 2022 17:36:09 UTC
All use subject to https://about.jstor.org/terms
 Bophuthatswana: judicial recognition of independence 235

Many governments ignored the reality of the USSR. The USA

accorded official recognition in 1932. When the United Kingdom granted
recognition in 1921 it was retroactive to 1917. So the act of recognition can
be used as 'an effective method of intervening in the internal affairs of
another country . . .'9
To say that a new state, which has not yet been recognised, is
non-existent may be a manifest absurdity10. 'It is generally admitted that an
unrecognized State cannot be completely ignored'11. Further: "A new
sovereign and peace-loving State, no matter where it is or what the extent
of its territory, the size of its population, the character of its public regime,
the form of its government and of its political structure, has the right to full
and unreserved recognition. . ,12
The difficulty inherent in the constitutive view is that recognition is
the acknowledgment of the prior existence of a state.13 It contains variables
rooted in political, ideological and economic motives which cannot serve
for determining basis in law. Extraneous interests other than legal consid
erations are applied. FriedmanJ concluded that the declaratory theory is the
more valid and acceptable view in that it contains objective criteria.

Tests applied to Bophuthatswana

The judge then turned to determining whether the status of Bophu
thatswana conforms to the essential qualifications as accepted by the
Montevideo Convention and the adherents of the declaratory theory.

A permanent population
A population of 3-4 million lives in Bophuthatswana and engages in
political, economic, agricultural and industrial activities.

A defined territory
No minimum geographical size is required (the Vatican); the bound
aries may not be defined with precision or disputed (Israel, Kuwait,
Kashmir). The fact that the territory extends over more than one separate
area does not militate against the requirement of a defined territory
(Alaska, Greek islands, Walvis Bay).

Government
Bophuthatswana has an effective government with legislative and
administrative ability. The Status Act and the Constitution Act provide
that the government is not subject to any external constraints or authority.
The government operates as such. The Constitution contains a Declaration

9Gerhard von Glahn Law among Nations 2ed MacMillan NY 1970 at 101.
10M Sorenson Principes de Droit International Public, Cours General RADI tome 1 (Leyde 1961)
at 132.
nPJ Nkambo Mugerwa Manual of Public International Law (ed Max Sorensen) 1969 at 269.
12Nathan Feinberg Studies in International Law 481.
13RC Hingorani Modern International Law 2ed at 97.

This content downloaded from

130.209.157.48 on Thu, 27 Oct 2022 17:36:09 UTC
All use subject to https://about.jstor.org/terms
236 XXII CILS A 1989

of Fundamendal Rights protecting liberty and freedom, enshrining

ity before the law and empowering the Supreme Court to enforce
acts. The government of Bophuthatswana exercises all the functions
sovereign government, in maintaining law and order, instituti
maintaining courts of justice, adopting or imposing law regulati
relations of the inhabitants of the territory to one another and
government.14

Capacity to enter into relations with other states

Bophuthatswana has the capacity and ability to enter into fo
relations. That it is denied the opportunity to demonstrate this in p
cannot mean that it does not possess this qualification.
The court concluded that Bophuthatswana has the necessary attri
of an independent state in that it complies with the essentials of state
It is thus a sovereign state according to the principles of internationa

'Product of apartheid'
The defence argued that an entity does not qualify as a s
notwithstanding the above, if it does not comply with 'peremptory
of International Law having the character of Jus Cogens'. These n
prohibited aggression, systematic racial discrimination and apartheid
the denial of self-determination.

It was conceded that there was no question of aggression. There is

clearly no systematic racial discrimination. There are no discriminatory
laws. The different races live in a spirit of amity. The majority of the
people are Batswana and their self-determination is ensured by being
citizens of the state of Bophuthatswana.
The main thrust of the defence argument in this connection was
against the creation of Bophuthatswana, the attack being directed against
the 'bantustan' policy of South Africa. To argue that Bophuthatswana
should be seen as a perpetuation of the apartheid policy of South Africa is
unrealistic and incorrect. As stated by the House of Lords, it is not
'material whether the territory over which it exercises sovereign powers is
from time to time increased or diminished . . . ' .15

The court found that the reality of Bophuthatswana in its incidents of

sovereignty is such that, objectively viewed, it must be regarded as a
sovereign independent state. Politicaly motivated non-recognition ignores
the elements of statehood which this country possesses.

The recent finding by the (English) Court of Appeal that Ciskei is 'a
subordinate body set up by the Republic of South Africa to act on its

14Government of the Republic of Spain v SS Arantzazu Mendi 1939 AC 256 (HL) per Lord Atkin
at 264.
l3Ibid at 265.

This content downloaded from

130.209.157.48 on Thu, 27 Oct 2022 17:36:09 UTC
All use subject to https://about.jstor.org/terms
 Bophuthatswana: judicial recognition of independence 237

behalf16 was cited. It was suggested that the same holds true for
Bophuthatswana. Friedman J rejected this as that decision of the Court of
Appeal was based on the rule that the courts are bound by a certificate filed
by the Foreign Office. He further found it difficult to accept the court's
attitude in disregarding clauses of a statute yet taking cognizance of another
part which is dependent on the sections disregarded.17
The Court of Appeal decision has been subject to criticism.18 Further,
the certificate of non-recognition does not meet the point in issue since it
is accepted that the United Kingdom does not recognise this country.
However a statement by the judge a quo19 that was in point was: 'After all,
recognition has in the past from time to time been withheld by Her
Majesty's Government on political grounds unrelated to the question
whether the entity is in truth an independent State.'

Conclusion
The objection that Bophuthatswana has no majestas or sovereignty s
that the crime of High Treason cannot be committed against the State
Bophuthatswana was dismissed.

í6Gur Corporation v Trust Bank of South Africa 1986 3 All ER 449 (CA) at 466.
17Sir John Donaldson MR disregarded s-s (1) of s 1 of the Status of Ciskei Act 1981
relied on s-s (3) of s 1 : at 601-603.
18Professor James Crawford 1986 British Yearbook of International Law 405.
19Per Steyn J at 591.

This content downloaded from

130.209.157.48 on Thu, 27 Oct 2022 17:36:09 UTC
All use subject to https://about.jstor.org/terms