A Judge under Apartheid

Tell us a little about your philosophy of the law's role in society, in a changing society like South Africa.

I think that really one has to start with the individual.

Anybody who has been victimized, whether it's in a national situation by being robbed or raped, to huge, massive crimes like genocide, it really is a natural human cry in every human being on every continent: when you've been victimized, you want justice. If you don't know who's responsible for what's happened to you, what's befallen you, you want to know. Even if one boils it down to a hit and run, I think the worst thing for the victim is not knowing who is responsible for what happened. So I think as one progresses into the international field this becomes more and more important. And I have no doubt from my experience that where those cries are unheeded, that causes cycles of violence, cycles of unhappiness in areas particularly like the former Yugoslavia and Rwanda where there's never been justice. There's this anger that builds up from generation to generation.

What then are the foundations for making this process possible? A respect for authority, first of all?

To make it possible one needs a system that makes it possible. Clearly if there's no respect for a system it's not going to work, so legitimacy is important. That's the importance, in my view, of democracy, because democracies have a legitimacy in virtually all countries where people are fortunate to have a democratic form of government.

Let's talk a little about what it was like being a lawyer and then a judge in South Africa. There was an immense contradiction. On the one hand you had a functioning Anglo-Saxon legal system, while at the same time and place was an Apartheid regime. Tell us a little about that tension for you as a judge operating in that system.

Many years ago Allan Drury wrote a book about South Africa which he called A Very Strange Society. And I think it's a very apt description of South African society because it was a strange mix of a democratic system for the white minority, and all that that means (regular elections, changes of government at the polls, a truly independent judiciary). But side by side with that, increasingly oppressive racist laws for victimizing black people, not only since Apartheid but for many, many decades before the Apartheid system was introduced after 1948. So there was this duality. As we've mentioned, my practice at the bar was a commercial experience. I didn't come into daily contact in my practice with the Apartheid laws, but obviously they were there for anybody with eyes and ears to see and listen to. 1990: Judge of the Supreme Court of South Africa. So I'm not suggesting that as a South African citizen I wasn't. But in my practice it became more relevant, and became very relevant in fact, when I became a judge.

At play was a belief by the practitioners of Apartheid that they were in a very civilized system. Is that a fair statement?

Absolutely. And you know it's really part of this whole problem.

One of the things I've learned in the difficult jobs that I've had in the last five years is that you can't have racial oppression, you can't have crimes against humanity, and you certainly can't have genocide without dehumanizing the victims. And in South Africa, blacks were seen as lesser mortals, and that was the sort of moral justification that made it much easier for ordinary white people to accept the system, especially if one added to that a terrible fear of what would happen to them if there was a black government. That they'd be driven into the sea and that they would, in fact, be treated in a way that they were treating the black majority.

So as a judge you, in a way, had to walk a fine line -- use the system and at the same time draw on the best precedents of the Anglo-Saxon tradition to, in a way, teach the system about the implications of what it was doing.

Well, the bench provided an important and visible platform to draw attention of ordinary South Africans to the injustices of the Apartheid system. Very fundamentally importantly -- the United States again -- United States lawyers and money had been responsible for setting up a legal resources center in South Africa in 1979. And that was a public interest law firm that began to get more and more support, I'm happy to say, from within the country, financially and otherwise from the legal profession. The Legal Resources Center brought cases to court on behalf, almost exclusively, of black groups who were being victimized by Apartheid. And they prepared their cases very well, they chose their cases very well. And they had some signal successes which alleviated the plight of literally millions of black South Africans.

Let's talk about a particular case for which you are well known for your decision related to the group areas law. Tell us a little about that law and what its implications were for the blacks of South Africa.

Well, the law was promulgated in 1950, the Group Areas Act, and that was the legislation that made it a criminal offense for anybody of a wrong color to live in an area that was designated for the sole occupation, residence, or business of another. In effect this meant that black South Africans were kept out of some 87 percent of the country. It was a criminal offense for them to own land, to live or own a business in white-designated areas. Part of the figment of Apartheid: it was equally an offense, by the same token, for a white person to live in a black area. But of course that wasn't of any practical significance. The legislation provided that if any person was found guilty by a judge of living in the wrong area, that judge may grant an eviction order. And hundreds of thousands of blacks were evicted by the lower criminal courts, the Magistrates Courts as they're called, between 1950 and 1981, when the Govander case came before me in an appeal in the Transvaal Supreme Court, in which I then sat. It was a case brought by the Legal Resources Center. Mrs. Govander pleaded guilty, she was living in a white area, a sort of lower middle class white area, and had a legal lease rental agreement with her landlord. And presumably some neighbor complained that there were Asians living in that area. So she was charged criminally with living there. She pleaded guilty, but she begged the magistrate through her lawyer to suspend the eviction order. She knew there'd be an eviction order. She asked the magistrate to suspend it until she could get alternative accommodation. She laid evidence that she'd been on a waiting list for accommodation in an Indian area for seven years and that there was unlikely to be accommodation for another ten years. The magistrate took pity on her and he granted the eviction order but he suspended it for one year. And they came on appeal asking for a further suspension, either indefinitely until she had alternative accommodation, or for ten years. And it seemed to me that there was really an inherent illogic and irrationality of using a law that was intended to get people out to keep them in.

What we decided was that the magistrates from 1950 to 1981, for over 30 years, had been wrongly granting eviction orders at all. The law said they "may" grant them, not "must" or "shall" and therefore they had a discretion. And we said there had to be a completely separate hearing after a conviction, and only at the instance of somebody with an interest, not automatically by the prosecutor, and that the magistrate was to have a full hearing and take into account all relevant considerations. And the key one was alternative accommodation. So we simply set aside the eviction order completely, and that was the last time anybody was charged under that Act. I didn't know it, I can't claim any great prescience, but what soon emerged is that the government was charging people, the state was bringing these criminal cases in order to get people out, not to punish them. And once they were stymied by this judgment, once they were stymied in getting them out, they stopped criminalizing it.

So there was a nice interplay of the spirit and the letter of the law, to bring out an irrational element of the system.

Right. And that's one of the numerous examples of Apartheid laws that were irrational. Another important one was, hundreds of thousands of black South African (mainly) men were separated from their families because if they wanted work in a white city, and those were all the major cities, if they wanted work in Johannesburg or Capetown, they would need a permit to allow them to come in. And the law was interpreted as disallowing their spouses to join them. And this gave rise, as you can imagine, to the most terrible social problems -- illegitimate children, duel households, prostitution. The most terrible family problems. And the Legal Resources Center again challenged that law and said that the people, the administrators of the law, had misinterpreted their rights and they really had no right to refuse spouses a permit to join their husbands or wives. And that succeeded, it went right through to our highest court. And the Legal Resources Center attitude was upheld. And it meant the hundreds of thousands of families were able to reunite in the country.

Another way that the law became an effective tool, and you used it in your role as a judge, was by presenting yourself at prisons and so on to examine the facilities. Tell us about what you were trying to do there.

Well, South African judges, in terms of our prison statutes, have the right to visit prisons at all hours of the day or night unannounced, which is a very healthy system. But again, part of the strange society: it was, in a way, inconsistent with the quasi-police state that South Africa in many ways was. But judges were allowed to do that. Unfortunately not many judges regarded this as a duty. When I started on the bench I realized it was important. And I realized too, that, to their credit, the prison administrators welcomed these visits, because the prisons in South Africa had a tremendous turn for the better in the '70s and even more so in the '80s, and the prison administrators responsible for those improvements wanted people to come and see what they were doing. So I didn't really have to force or foist myself on the prison administrators during these visits, but I went. And that became known, and when we had tens of thousands of people in detention without trial during the three states of emergency from '85 to '89, I was asked, in fact by the government, by then-President Botha, to visit the detainees. That surprised everybody. But again it was his way of reassuring the international community that these people in detention were not getting beaten up and were not being ill-treated. And too I think it was a subtle way of telling the police not to beat them up. And what was new there, incidentally, was the power that was given to me to visit people in police cells. Now that had never been allowed. The right of judges to visit prisons, as I say, went back many decades, but we were precluded from visiting police cells. But in those three years I visited thousands, many thousands, of detainees in some 27 prison facilities and 40 or 50 police cells.

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