From: shaze@cs.ubc.ca (Scott Hazelhurst)
Newsgroups: soc.culture.african
Subject: Re: A sick legal system with normal tendencies.
Date: 12 Jan 1993 20:37:16 -0800
Organization: Computer Science, University of B.C., Vancouver, B.C., Canada
NNTP-Posting-Host: tolmie.cs.ubc.ca

mokaba@binah.cc.brandeis.edu writes:
>Unfortunately one finds it difiicult to classify the system as etheir one 
>of the two in absolute terms. I have since found it necessary to think of the
>sytem as a necessarily unjust, unfair, racist, and biased legal system with 
>minor tendancies of fairness. 
>any comments on this?

As always. Can't shut me up.

We have a strange foundation to the legal system:
that is a curious mixture of Roman-Dutch law, English common law,
and African customary law. I think this was a great foundation (generally),
and the fact that there is anything left in our legal system
to find praise, and that even in the worst periods of repression
(1985-1989) that some justice could be found through the courts
is a great tribute to this legacy.

However, what we have seen is the law being changed by statute generally
in a very negative way. Although before Union the legal system
was hardly a paragon of virtue,(in particular here I refer to the Cape because
that is often seen as the source of a 'liberal' tradition), after Union
the system became as you say "a necessarily unjust, unfair, 
racist, and biased legal system", because of the laws that were passed.
Due to the robustness and strength of the foundation, and also the
fact that there have been many honest and just judges and magistrates,
and many courageous lawyers, and the fighting spirit of the people
justice could still be found from the courts. 

Of course as in any legal system, the cumbersomeness and cost of
the system limited what could be gained, and brought too little
relief too late. For example, in one of the most infamous of the
'black spot' removals, the people of Magopa had their community
destroyed, and were driven from their lands. By the time the
Appeal Court had decided their removal was not legal, it
was too late.

And not only did the legal system suffer from the unjust laws
it also had to suffer from the failings of judges and judicial
officers in other respects
-- the number of cases where the Appeal Court had options in handing
   down judgements which could lead to greater justice and didn't
   This is important because it made life for the government much
   easier and bound lower courts in deciding cases.
-- That many of the judicial officers were racist.
   -- reading transcripts of 'trials' of pass law offenders shows
      that many of the judicial officers could not have thought
      that the people coming before them were human beings
   -- examples of disparities in sentencing for example.
-- and of course judges (and other judicial officers) are,
   naturally, swayed by political events. I think the prime example
   of this was the death of the Reservation of Separate Amenities
   Act, which was effectively killed (before it was repealed)
   when the Supreme Court found that in 1989 (?) the Boksburg
   Town Council had resegregated municipal facilities in terms
   of the Act mala fides and so it was invalid to do so. Why could
   the same not be said to any of the reservations made thirty years
   previously -- maybe because no lawyer was smart enough to 
   think up of the argument earlier (i don't think do)  -- but more
   because in the earlier periods the Courts were swept along in
   the political ethos of the time (my favourite example of this
   is the black lawyer who was convicted of contempt of court
   for protesting against a magistrate's order to make him speak
   from a different table that white lawyers used. This conviction
   was upheld by the Appeal Court which specifically said that
   a magistrate could do this (even though this particular segregation
   wasn't under the operation of the Reservation of Separate
   Amenties Act, just what the magistrate felt)). I can only explain
   the difference in these outcomes by the political culture of the
   day.
   



Scott

-- 
---shaze@cs.ubc.ca----------------------------------------------------------
   Scott Hazelhurst    
Newsgroups: soc.culture.african