The Courts Vs. Apartheid

It seems the sharpest of paradoxes: an independent judiciary housed within an authoritarian state. Yet at various times over the past four decades, South Africa's courts have challenged the government in an effort to protect the civil liberties of the country's black majority. Last week, as a three-judge panel of the Natal Supreme Court struck down key provisions of the state of emergency, the world saw a bold example of a maverick judicial system in action.

The character of the South African courts has undergone several changes since the ruling National Party came to power in 1948. The 110 judges in South Africa's far-flung Supreme Court system, which has branches at the national, provincial and local levels, are appointed by the chief of state with the advice and consent of the Cabinet. The majority are selected from among the country's most respected senior attorneys. Under this system, the newly installed Afrikaner government faced a host of judges who had been appointed by the previous administration, including many who had little sympathy for security and race laws designed to enforce apartheid.

By the 1960s, however, the National Party had changed the balance of the courts. Overlooking some distinguished but all-too-liberal candidates, the government named less eminent but more sympathetic lawyers to judicial posts. At the same time, the Parliament enacted a number of laws that severely curbed court powers. Result: through the 1970s, few court hearings challenged the increasingly tough security edicts.

During the '70s, the stream of politically influenced appointments began to ebb. Confident that new laws had reined in the courts' ability to make trouble, the government selected judges on the basis of merit. The newer appointees included younger jurists who had been exposed to the U.S. civil rights movement. Now, says John Dugard, a law professor at the University of the Witwatersrand, "we are seeing a new generation of judges who are concerned with curbing the excesses of the administration and with the upholding of civil liberties."

This more activist judiciary has been chipping away at the powers the government assumed when it imposed emergency regulations on June 12. The first challenge concerned a detained black television sound man. A Transvaal Supreme Court ruled in July that the sound man had been arrested in bad faith, and ordered his release. A week later a three-judge Supreme Court panel in Durban set aside parts of the emergency regulations, charging that the sections dealing with "subversive statements" were a "lot of nonsense." Then came last week's ruling invalidating all detentions in parts of Natal province.

The decisions have produced a wave of excitement in legal circles. "This is a terribly important trend," says Dugard. "I wouldn't say it's a confrontation, but the courts are asserting their independence and distancing themselves from the executive." Concurs a leading white lawyer: "There is a more responsive bench today than there has been in previous decades."

While the new judicial boldness has heartened opponents of apartheid, there are still many obstacles. In South Africa, whose legal system resembles Britain's, there is no constitutional bill of rights through which the courts can protect individuals, and the Parliament is supreme. Hence judges are bound to enforce all its laws, however capricious they may seem. The courts can only challenge statutes on technical grounds, as happened in the recent flurry of decisions.

Parliament can moot those decisions simply by passing new, retroactive laws that circumvent the courts' objections. Still, at least some of the judicial impact is likely to last. Says Jules Browde, chairman of South Africa's Lawyers for Human Rights Organization: "The importance of these cases is that they have led to an increased awareness among lawyers that all is not lost. Things can be done if you try."