From: scott@concave.cs.wits.ac.za (Scott Hazelhurst)
Subject: Re: Conscription of Whites into the SADF
Organization: Wits University Electrical Engineering
Date: 26 Jul 92 15:47:42 GMT

In <1992Jul26.151449.19302@ucthpx.uct.ac.za> gavan@UCT_elc.mth.uct.ac.za (Gavan Tredoux) writes:
>Thanks to our inheritance of English public law, parliament is in theory
>supreme. However, that doesn't mean the courts can't challenge acts.
>After all, there is the question of whether the act was, in fact,
>constitutionally passed, whether the clauses are contradictory, and
>all sorts of other administrative law issues. There are cases where sections
>of acts have been nullified by judging that they were so vague and broad that
>Parliament could not possibly have intended them to be law. 

I don't think you are right here. It may be that the Supreme Court
can rule on whther it was passed constitutionally (whether
all the technical requirements were met, but that's about all).
As far as I know, the only Act that the court can rule on
would be one that infringes the equality of english and Afrikaans.
I think that with Acts of parliament, the only thing that
judges can do is to mitigate their effect by limiting their
scope in the strictest way possible. But they can't just
throw out an act etc. etc. Of course, with some imagination
and courage things can be done. Some examples: the scope of
s29 of the old Insternal Security Act was limited dramatically
when the Appeal Court ruled that "... reason to believe .. ." meand
that a police officer actually had to have "reasons" before
detaining someone, and that "reason" was an objectively
testavble thing. Another example is the Transvaal Supreme
Court's striking down of Boksburg by-laws under the  
Reservation of Seaparate Amenities Act on the grounds that
although the town council had the power under the act it
exercised the power in bad faith. Before these cases, the 
Acts were taken as monolithic and nothing could be done
(especially s29 of the ISA).

>Many liberal
>judges built up a whole lot of cases arguing like that. Could they do the
>same for the Defence Act? 

I don't think you're right here. What many judges did in the
Emergency was to throw lots of emergency regulations out.
But these regulations are delegated to the State President,
and so do not have the same status as Ats of Parliament. The
nats of course spent years in the fifties desstroying the
credibility of the courts by esnuring that the courts
couldnt question parliament (this was when they threw
couloured off the common roll) As far as the emergency
regualtions wre concerned there was a lot of good work done
by lawyers and judges. But the Appleal Court (under Rabie)
undid most of it, and has been argued did a lot of damage
to South African Administrative Law in its eagerness to
letthe executive have its way.

>Open question. Can't see the Appeal Court
>throwing it out when Parliament has just specifically passed an 
>ammended act with the sole purpose of keeping whites in the SADF. Maybe a
>lower court could, in which case there might be a protracted delay
>before the Appeal court get to it. 

The Appeal Court is very unlikely to do such a thing. Hopefully
we'll have a sensible government soon anyway. What could happen
though is that the new regaulations that the minister issues
are attacked. These might be thrown out.
>Down with conscription!

>Gavan Tredoux
>UCT

--

----Scott Hazelhurst-------------------------scott@concave.cs.wits.ac.za---
Department of Computer Science, University of the Witwatersrand
2050 Wits, South Africa         phone 27(11)716-3309 fax 27(11)403-1926
Newsgroups: soc.culture.african