The Law The fundamental aims of the South African legal order are to insure white political power and to protect white social and economic privilege. Successive governments have disenfranchised the black majority and constructed an administrative system under which blacks are constantly reminded of their inferior status. Since 1948, when the Nats came to power, countless security laws have been passed. They continue to suppress not only black opposition to apartheid but political opposition in almost every form. Roman-Dutch law the common law in contemporary South Africa was brought to the Cape in 1652 by the Dutch East India Company. South Africa’s courts and jury system, however, as well as the rules of criminal prodecure and evidence, are legacies of the British, who colonised the Cape in 1806. The South African system of government and principles of constitutional law are also modeled on Britain’s. And the South African constitution, while it isn’t unwritten, is extremely flexible. It doesn’t fetter Parliament with either a bill of rights or a doctrine of judicial review, and so provides no safeguard against arbitrary legislation. In Britain, of course, parliamentary sovereignty is checked by tradition, con .vention and above, all by the rule of law. In South Africa tradition and convention are more or less improvisational, and the advantages of a flexible constitution haven’t been lost on those bent on institutionalizing racism by authoritarian means. The period between 1910 and 1961 \(South Africa became a republic in Parliament and the death of many restraints on its will. Between 1948 and 1958 the first decade of Nationalist rule almost all British legal principles were abandoned. Parliamentary .sovereignty wasn’t one of them; the rule of law was. South African jurisprudential argument has generally been that the rule of law, with its insistence on equality before the law and access to the courts, is a British constitutional concept premised on humanism, and a humanist philosophy is unacceptable in a country embracing “Christian” principles of government. Church and state have always been closely allied in South Africa, but with a fearful vengeance: the relentless Calvinism of the Dutch Reformed Church \(Nederduitse Gereformeerde teaches not only racial separation but white supremacy. These so-called 12 NOVEMBER 28, 1980 Christian principles, in conjunction with the doCtrine of parliamentary supremacy, have brought about what John Dugard, professor of law at the University of the Witwatersrand, has called “the debasement of the South African legal system . . . . In South Africa few holds are barred as far as Parliament is concerned: parliamentary sovereignty has been taken to its logical and brutal conclusion at the expense of human rights.” Most of the security legislation on the books.has been introduced since 1948. In 1950 the Suppression of Communism Act the first step toward the creation of a police state was passed to outlaw the Communist Party. The act construed communism in unbelievably broad terms: “any doctrine which aims at bringing about any political, industrial, social or economic change within the Union by the promotion of disturbances or disorder, by unlawful acts or omissions or by means which include the promotion of disturbances or disorder, or such acts or omissions or threats.” The security branch, accordingly, could move against not only professed Marxists but most other “radical” opponents of Nationalist policy. The act has been amended many times. In 1976 the Nats rechristened it the Internal Security Act and broadened its reach to increase the number and severity of the restrictions the Minister of Justice may impose. Today, the act covers organizations and individuals engaging in “activities which endanger the security of the State or the maintenance of public order ” a definition wide enough to proscribe almost any opposition to the status quo. The 1960’s saw what even in the South African context was a bewildering amount of security legislation. In 1962 the General Law Amendment Act introduced the capital offense of “sabotage,” defining it as any “wrongful and wilful act which injures, destroys or endangers public health and safety; water supplies, public utilities or services; supply or distribution of food, fuel, water; maintenance of law and order; free movement of traffic; or State or private property.” This statute also provided for the warrantless arrest of those “banned” under the Suppression of Communism Act; later amendments authorized the arrest, again without warrant, and detention incommunicado, without trial, of any person for successive 90-day periods, as well as the imprisonment of uncooperative witnesses and the extension to Namibia \(formerly Southwest Africa, the trust territory that continued to be administered by South Africa in delier provisions covering sabotage and detention. In 1965 the Criminal Procedure Amendment Act created a law allowing the Attorney General to order the detention, for 180 days, of any person thought to possess material evidence that might be of use to the state in political trials. The most stringent security measure of all, the Terrorism Act, passed Parliament overwhelmingly in 1967 and was made retroactive to June 1962. It defined what Sydney Kentridge, the Warren Burnett of South Africa, calls “a new form of statutory treason”: “Terrorism” or “terroristic activities.” Under its provisions, a person is guilty of a capital offense if he does anything with the intention of endangering law and order. The Terrorism Act extends considerably the concept of treason. RomanDutch law defines treason as an act committed with the intention of overthrowing the government by violence. But the Terrorism Act, which is riddled with assumptions transferring the burden of proof to the accused, covers offenses that go well beyond those ordinarily regarded as treasonous. For instance, the act prohibits activities likely to cause “substantial financial loss to any person or the State,” or “embarrassment” to “the administration or the affairs of the State.” By this definition, organizing a strike is committing treason. So is printing an unflattering photograph of the prime minister \(something easily done, And the law doesn’t stop at South Africa: it prohibits “treasonous actions” anywhere on the globe. Section 6, the key to its actual working, authorizes the security police to detain, without warrant, any person whom any police officer of or above the rank of lieutenant-colonel suspects of ‘either committing an offense under the Terrorism Act or possessing knowledge of such an offense. The purpose of detention is interrogation, and the detainee may be held until all questions have been satisfactorily answered or until the security police decide that “no useful purpose will be served by his further detention.” This phtase has frightening implications. In effect it allows the security branch to detain a person indefinitely without charge or trial. Section 6 prohibits any court from pronouncing on the validity of detentions under the act and denies the detainee the right to habeas corpus. It also denies him access to a lawyer, doctor or family member. Although the act doesn’t authorize physical abuse, it does authorize solitary confinement without books, newspapers, letters or any communication with the outside. However, because
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