UNIT 3

LECTURE 4

READING: Beginner’s Guide, Chapter 2, sections 2.5 & 2.6 & 2.7

1. Phase 4: apartheid law

1.1 Apartheid in a nutshell

Apartheid is a system that was based on racial discrimination and segregation.

Racial segregation and racial discrimination did not magically appear in South Africa
with the introduction of apartheid in 1948. Racism has its roots in our colonial past.
Therefore, South Africa had been a racist territory for centuries before apartheid was
implemented in 1948.

When the National Party(NP) came into power in 1948, it entrenched racial
discrimination and segregation in our legislation/statutes. Therefore, the NP
government made apartheid legal through the passing of legislation that enforced
racial discrimination and segregation. Some examples of apartheid legislation
include the following:

 Population Registration Act 30 of 1950-In terms of this act, all people in

South Africa were forced to register according to their race, including black,
white, Indian or coloured. Therefore, people were classified according to racial
categories.
 Group Areas Act 41 of 1950 – In terms of this act, different areas were
reserved for different races. Thus, whites lived in white-only areas, coloureds
lived in coloured-only areas, etc. The largest part of arable land in South
Africa was reserved exclusively for white people. In order to provide whites
with this land, other races were often forcibly removed from their own land. It
is estimated that more than three million black people were violently removed
from their homes and settled in so-called “group areas.” A system of
“Bantustans” was devised which by 1959 culminated in nine so-called
“independent African states” taking up 13% of South Africa’s territory. The
remaining 87% of land would remain in the hands of the white population.
 Black people in urban areas were consigned to “townships with almost no
economic base…and therefore underresourced and underdeveloped.”1
 Separate Representation of Voters Act 46 of 1951-In terms of this Act, the
franchise (the right to vote) was denied to the majority of the population,
namely black people.
 Reservation of Separate Amenities Act 49 of 1953- In terms of this act,
public amenities were reserved for specific racial groups. Thus for example,
certain beaches, libraries, etc were reserved for whites only.
 Prohibition of Mixed Marriages Act 55 of 1949- In terms of this act, people
from different racial groups were prohibited from marrying each other.
 Bantu Education Act 47 of 1953-In terms of this act, a separate education
system of inferior value was created for black people.
 Suppression of Communism Act 44 of 1950 and the Internal Security Act
74 of 1982- In terms of these acts, the apartheid government strictly
controlled and suppressed any resistance to the policies of apartheid. For
example, the apartheid state sanctioned detention without trial for people who
opposed apartheid.

Although apartheid was legal (because it was enforced through legislation), it was
unjust towards the majority of the South African population. Furthermore, the
apartheid government was not voted into power by the majority of the population,
because black people were not allowed to vote. For this reason, the system of
apartheid created a legitimacy crisis. The majority of the population did not regard
the apartheid government as a legitimate government.

1.2. Characteristics of apartheid law

According to Thad Metz, a professor in philosophy, apartheid law was characterised

by four main types of oppression:

a) Political autocracy- The apartheid government had absolute control over

the apartheid state. The white-supremacist government denied the

1
Venter A and Landsberg C (eds) Government and politics in South Africa (2011) 5-7.
 majority of the population the right to vote and enacted laws that would
suppress people who opposed the apartheid state. Therefore, the
apartheid government was intent on silencing the voice of the majority of
the population.
b) Land dispossession- Black people were not allowed to own land in
apartheid South Africa. In terms of the Group Areas Act, people had to live
in racially demarcated areas. Black people were forced to carry a pass in
white-only areas. Failure to carry these passes could result in arrest.
c) Civil liberty deprivation- The majority of civil rights that we exercise
today, were denied to black people under apartheid. These included the
civil rights to vote, dignity, equality, life, privacy, freedom of expression,
freedom of movement, freedom of association, freedom and security of the
person.
d) Opportunity destruction- Black people were denied various opportunities
to improve their lives under the apartheid government. Thus, for example,
the Bantu Education Act created such an inferior system of education for
black people which resulted in most black becoming labourers who earned
extremely low wages. In addition, black people were legally barred from
entering certain professions.

Apartheid has been declared a crime against humanity by the United Nations. The
International Convention on the Suppression and Punishment of the Crime of
Apartheid was adopted by the General Assembly of the United Nations on 30
November 1973. Article 2 of the Convention defines the ‘crime of apartheid’.

ARTICLE 2:

For the purpose of the present Convention, the term "the crime of apartheid", which
shall include similar policies and practices of racial segregation and discrimination as
practised in southern Africa, shall apply to the following inhuman acts committed for
the purpose of establishing and maintaining domination by one racial group of
persons over any other racial group of persons and systematically oppressing them:

(a) denial to a member or members of a racial group or groups of the right to life and
liberty of person:

(i) by murder of members of a racial group or groups;

 (ii) by the infliction upon the members of a racial group or groups of serious
bodily or mental harm, by the infringement of their freedom or dignity, or by
subjecting them to torture or to cruel, inhuman or degrading treatment or
punishment;

(iii) by arbitrary arrest and illegal imprisonment of the members of a racial group
or groups;

(b) deliberate imposition on a racial group or groups of living conditions calculated to

cause its or their physical destruction in whole or in part;

( c ) any legislative measures and other measures calculated to prevent a racial

group or groups from participation in the political, social, economic and cultural life of
the country and the deliberate creation of conditions preventing the full development
of such a group or groups, in particular by denying to members of a racial group or
groups basic human rights and freedoms, including the right to work, the right to
form recognized trade unions, the right to education, the right to leave and to return
to their country, the right to a nationality, the right to freedom of movement and
residence, the right to freedom of opinion and expression, and the right to freedom
of peaceful assembly and association;

(d) any measures, including legislative measures, designed to divide the population
along racial lines by the creation of separate reserves and ghettos for the members
of a racial group or groups, the prohibition of mixed marriages among members of
various racial groups, the expropriation of landed property belonging to a racial
group or groups or to members thereof;

(e) exploitation of the labour of the members of a racial group or groups, in particular
by submitting them to forced labour;

(f) persecution of organizations and persons, by depriving them of fundamental

rights and freedoms, because they oppose apartheid.

1.3 Debate between modernists and purists-This is a debate that will be explored
when you discuss the common law.

1.4 Debate between positivists and non-positivists

The impact of apartheid on the legal system led to a debate between the positivists
and non-positivists.
Under apartheid, judges were tasked with interpreting very unjust laws. For example,
if black people were forcibly removed from their homes in terms of the Group Areas
Act, judges were required to interpret the Act to determine whether people could be
removed or not. The Act provided that each racial group should live in their own
area. Therefore, if the Act declared a certain area a white area, a judge who literally
interpreted the Act, would then find that black people had to move to allow white
people to locate to that specific area.

A judge who would interpret the Group Areas Act without considering the fairness of
the law/morality of the law, would be considered a positivist judge. Furthermore, a
positivist interpreter believes they can be completely objective and unbias when
interpreting a law.

On the other hand, a non-positivist believes that the law is not separate from
politics/economics/morality,etc. The non-positivist is concerned with whether the law
is fair and just. They do not believe that judges are objective. They believe that a
judge’s decisions can be influenced by their personal circumstances, beliefs, political
stance, etc.

Many judges under apartheid enforced apartheid laws without having any regard for
the fairness of the laws. Some of them were indeed supporters of apartheid and in
this way, contributed to the apartheid system being upheld.

The Truth and Reconciliation Commission (TRC) investigated gross human rights
violations between the period 1960-1994. They also investigated the role of the legal
profession during that particular period. The TRC found the following: ‘The courts
and the organised legal profession generally and subconsciously or unwittingly
connived in the executive and legislative pursuit of injustice, as was pointed out by a
few at the time and acknowledged by so many at the hearings. Perhaps the most
common form of subservience can be captured in the maxim qui tacet consentire
videtur [which means] silence gives consent.’

2. Phase five: transformative constitutional democracy

The apartheid government experienced resistance from various corners because of
the unjust system of apartheid. For example, the international community imposed
sanctions on South Africa. This meant that South Africa could not export certain
goods to other countries, certain goods could not be imported into South Africa,
South African sports teams were prohibited from participating in international events,
etc.

Various political movements in South Africa also fought against the policies of the
apartheid government. One of these organisations, the African National Congress
(ANC) organised many campaigns against the apartheid state, including the
Defiance Campaign of 1951-52 which involved strikes, marches,protests and other
forms of civil disobedience.

The ANC adopted the Freedom Charter. In terms of this document, the ANC was
committed to non-racialism and human rights and had no intention to use violence to
end apartheid in South Africa. In 1959, certain members of the ANC broke away and
formed another party, the Pan Africanist Congress (PAC). The PAC did not agree
with the ANC’s views on non-racialism and non-violence, for example. By 1960 , the
apartheid government had banned both the ANC and the PAC. This led to the PAC
intensifying its military campaign in an effort to bring apartheid to an end. The ANC
also started to review its stance on non-violence. Both the ANC and the ANC formed
military wings which would engage in violence in an effort to bring apartheid to an
end (especially because the apartheid government was not committed to ending
apartheid through negotiations with the ANC and the PAC).

The military unit of the ANC was called Umkhonto wi Sizwe (MK) and the military unit
of the PAC was called the Azanian Peoples Liberation Army (APLA). By the 1980s,
the PAC and the ANC were putting increasing pressure on the apartheid government
to review apartheid.

In 1990, the liberation movements were unbanned and Nelson Mandela was
released from prison. During the early 1990s, apartheid legislation was abolished
and multi-party negotiations between the apartheid government and the formerly
banned political movements took place with the purpose of establishing a democratic
South Africa. A new South African Constitution, the Interim Constitution of 1993,
containing a Bill of Rights which recognised the human rights of all South Africans for
the first time, was a product of the negotiations process. The Interim Constitution
was followed by the 1996 Constitution.

Both the Interim Constitution and the 1996 Constitution were adopted with the aim of
rectifying the injustices of the past. For this reason, the Constitution has been called
a ‘transformative’ Constitution, meaning that one of the objectives of the
Constitution is to transform South Africa from an unequal society into one which is
transformed and based on equality and justice for all. Karl Klare, an American legal
scholar has coined the term ‘transformative constitutionalism’ which he defines as:

[A] long-term project of constitutional enactment, interpretation, and enforcement

committed (not in isolation, of course, but in a historical context of conducive political
developments) to transforming a country's political and social institutions and power
relationships in a democratic, participatory, and egalitarian direction. Transformative
constitutionalism connotes an enterprise of inducing large-scale social change through
nonviolent political processes grounded in law.2

The 1996 Constitution has fundamentally changed the South African legal system.
The Constitution is the supreme law of South Africa. Any law that is in conflict with
the Constitution can be declared invalid. The Constitution entrenches the human
rights of everyone and prohibits discrimination on a range of grounds, including race
and gender. This means that if legislation or the common law or the customary law
contains any rule that discriminates against people, that rule can be declared invalid
in terms of the Constitution.

3. Conclusion

We have come to the end of Unit 3. Based on what we have learned in this unit, we
should ask ourselves some questions.

Firstly, can we refer to our legal system as a Roman-Dutch legal system? The
answer is NO. Roman-Dutch law is only one component of our legal system. We

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K Klare ‘Legal Culture and Transformative Constitutionalism’ 1998 (14) SAJHR 150.
inherited Roman Dutch law from the Dutch who colonised South Africa in the 17 th
century. Roman-Dutch law forms a part of our common law today. Our legal system
has also been influenced by English law and customary law. Therefore, a more
correct term to use, is that our system of law is ‘South African law.’

Furthermore, South African law is subject to the transformative South African

Constitution. As explained earlier, any rule of legislation/common law/customary law
that is in contradiction to the Constitution, can be declared invalid. For example, the
customary law of succession contained the rule of male primogeniture which means
that if a male dies without a will (he dies intestate), only his sons could inherit from
him. The rule of male primogeniture therefore prohibited daughters from inheriting
from their fathers if they died without a will. In the Constitutional Court case of Bhe v
Magistrate,Khayelitsha 2005 (1) SA 580 (CC), the Constitutional Court held that this
ruled violated our Constitution which guarantees the rights of women to equality and
dignity. The Court therefore found the customary law rule unconstitutional because it
violates the rights to equality and dignity of women.