Politics By Other Means

Law in the Struggle Against Apartheid, 1980-1994

Richard Abel

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781136650499
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Politics by Other Means explores the fundamental question of how law can constrain political power by offering a pathbreaking account of the triumphant final decade of the struggle against apartheid. Richard Abel presents case studies of ten major legal campaigns including: challenges to pass laws; black trade union demands for recognition; state terror; censorship; resistance to the "independent" homelands; and treason trials.

Chapter 1
Speaking with the Ogre

The Ogre does what ogres can,
Deeds quite impossible for man,
But one prize is beyond his reach
The Ogre cannot master speech.

W.H. Auden^*

The struggle against apartheid is one of the great contemporary moral dramas. Together with proletarian revolutions, the defeat of fascism, wars of liberation, and the labor, civil rights, and feminist movements it defines our century. The April 1994 election, which launched democracy in South Africa, signified the end of the colonial era and official racism.

Law has played a central role in this struggle for several reasons. The white regime effectively excluded Blacks from the political arena. Africans could not vote for national offices.^** Their local governments had little autonomy. No foreign country recognized the ten “homelands,” whether “independent” or “self-governing.” Elections were infrequent and often rigged, and military coups were common. The South African military kept homeland leaders in power (and restored them when overthrown), and the central treasury heavily subsidized their unviable economies. Although the regime purported to leaven totalitarian white control over urban Blacks with appointed and then elected black township councils, these were just as corrupt as their homeland counterparts and less legitimate, if anything, since local elections were frequently boycotted. Although the 1983 constitutional “reform” created Houses of Representatives and Delegates for “Coloureds” and Indians in the new tricameral Parliament, the United Democratic Front boycotted elections to those bodies (securing minimal turnouts), and the white-dominated President’s Council could and did override their vetoes.

The principal opposition groupings—ANC, SACP, and PAC—had all been outlawed by I960. Although they re-established themselves in exile, often with considerable diplomatic and media visibility, they could only operate underground within the country. Using detention without trial, torture, informers, and agents provocateurs, the security police managed to infiltrate and disrupt much of the underground movement. The ANC military wing, Umkhonto we Sizwe (Spear of the Nation), greatly strengthened by the exodus of youths after the crushing of the 1976 Soweto rebellion, smuggled arms and personnel back into the country. But though it demonstrated an increasing capacity during the 1980s to detonate bombs and land mines (hitting “soft” civilian targets more easily than “hard” military objectives), it never posed a threat to the regime or seriously impaired white morale. Staffed through the universal conscription of white men, who served two years and did reserve duty for another two, and endowed with the most advanced technology, the South African Defence Force exceeded the military capacity of all the rest of sub-Saharan Africa combined. Despite its name, the SADF actually defended white power by patrolling black townships, preserving colonial rule in South-West Africa (Namibia), assisting insurgents in Angola and Mozambique (Unita and Renamo), and freely attacking ANC targets (and innocent civilians) in the front-line states (Botswana, Zimbabwe, and Zambia).

Other forms of extraparliamentary politics were severely curtailed. Government either banned all outdoor meetings or refused to issue the requisite permits. It outlawed numerous organizations. It excluded and deported foreign correspondents and television crews. It regulated the entry of all foreign books, newspapers, magazines, and films. It controlled television and dominated radio. It severely limited what the domestic media could publish, seized offending issues, banned books, and punished publication and even ownership with fines and prison terms. It curtailed access to scenes of unrest or opposition. It prosecuted and jailed opponents for long terms—most notoriously Nelson Mandela and the other Rivonia accused for life on Robben Island. Using ever more restrictive security legislation it detained opponents indefinitely without trial or banned and restricted them (so they could not be quoted, meet with others, or even leave their homes). During the 1985-90 Emergency it jailed more than 35,000 people, some for years.

If the opposition had few avenues other than litigation through which to challenge the regime, there also were good reasons for choosing law as a means of struggle. South Africa repeatedly proclaimed its respect for the rule of law, to both foreign and domestic audiences. Courts occasionally invalidated racist actions by the executive or legislature, such as segregation of public accommodations, or disenfranchisement of Cape Coloured voters. If such decisions were exceptional, they also were repeatedly lauded as evidence of the independence of the judiciary. White politicians never tired of making comparisons with the one-party authoritarian regimes prevailing throughout black Africa. Because the regime used legal institutions to construct and administer apartheid, it was vulnerable to legal contestation. All this helps to explain why the opposition might choose law strategically. But it also embraced legality as a fundamental principle—most notably the ANC in its Freedom Charter.

Yet law was an unpromising ally. The South African Parliament was supreme. No bill of rights restrained it, nor was there any tradition resembling the unwritten constitution that inhibits its Westminster antecedent. The National Party ruled for nearly half a century—from 1948 to 1994—generally disregarding an opposition that dwindled to the lonely voice of Helen Suzman for thirteen years. Well before the 1980s the Nationalists had appointed every judge, increasingly guided by political loyalty. Legal challenges to the regime rarely succeeded and hence were rarely attempted. The legal profession, naturally conservative and timid, remained silent.

South Africa, therefore, presents the ideal setting in which to explore the central question of jurisprudence: the circumstances under which, extent to which, and ways in which legality constrains state power. Law claims authority by offering reasons for the exercise of power. It relies on human speech rather than brute action. Could the South African ogre speak? Would it heed opposing arguments? Reflecting on eighteenth-century England, E.P. Thompson declared that “the regulation and reconciliation of conflicts through the rule of law” is “a cultural achievement of universal significance.”¹ Alan Paton (who testified for Mandela and the other accused in the 1964 Rivonia trial) unconsciously echoed this sentiment. The rule of law “is one of the noblest achievements of sinful man,” “the greatest political achievement of humankind,” “a miracle.”² Would South Africa fulfill or disappoint these hopes in the 1980s?

This book seeks to understand the value and limits of legality in resisting authoritarian regimes—the art of speaking with the ogre—by examining ten pivotal legal campaigns during the last years of apartheid. In choosing them I sought to cover the three principal arenas of struggle—political authority, land, and labor—and the two strategic postures—law as shield and as sword. The victories and defeats, the resort to legality and its evasion, all illuminate law’s potential for the oppressed. Here I preview the stories in chapters 3–12.

Chapter 3. The pass laws (which regulated the residence of Africans and required them to produce identity documents on demand) were one of the most pervasive and hated facets of apartheid, separating husband from wife, parent from child, banishing “surplus” labor and “unproductive” Blacks to impoverished “homelands” while exposing millions of urban residents to brutal bureaucrats, midnight raids, summary arrest, demands for bribes (of money or sex), and imprisonment or forced labor. Two challenges tested the utility of South Africa’s first public interest law firm and the judiciary’s capacity to control street-level bureaucrats.

Chapter 4. Resistance to conscription was one of the few contributions by whites to the struggle against apartheid (and one of the most visible). Those who failed to meet the narrow criteria for conscientious objection (or refused to apply) faced up to six years in prison. The handful willing to pay this heavy price to be absolved from complicity with apartheid became the focus of a highly effective campaign against conscription. The challenge to their sentences forced the Appellate Division to interpret unusually clear statutory language mandating fixed prison terms.

Chapter 5. Responding to big capital’s insistence on greater productivity, government created a structure for collective bargaining by black trade unions, which allowed them to grow rapidly in membership and influence. For years the Metal and Allied Workers Union (the second largest black union and the most militant) engaged in frustrating contract negotiations with a recalcitrant SARMCOL (owned by the multinational British Tyre & Rubber). In 1985 the company retaliated against a wildcat strike provoked by growing worker anger, locking out and then dismissing the entire workforce and negotiating a sweetheart contract with the far more compliant United Workers Union of South Africa. MAWU’s complaints about unfair labor practices led to the longest labor trial in South African history and an ambiguous judgment on the protection that law offered labor in disputes with management.

Chapter 6. After the Inkatha-linked (and government-financed) UWUSA ousted MAWU (which sympathized with UDF and the ANC), Inkatha launched a campaign to take over Mpophomeni, the SARMCOL company town. It sent a hundred armed youths to stage a deliberately provocative rally. During the preceeding night they kidnapped four MAWU activists (murdering three) and murdered a fourth Mpophomeni resident the next day. Summoned to the township, the police intervened to protect Inkatha from the angry populace, escorting them out of town with their weapons. The inquest tested the will of the legal system to name and punish the killers despite intimidation of witnesses by an armed Inkatha warlord, police delays, and prosecutorial indifference.

Chapter 7. The security forces routinely used torture to extract information, repress the masses, eliminate leaders, and take revenge. When government declared the Emergency in July 1985, Eastern Cape security police rounded up and systematically tortured hundreds of prisoners. Wendy Orr, working for the Prisons Department in her first job since qualifying as a doctor, was horrified by the wounds she treated and the stories she heard. Eight years earlier her superior had certified the tortured Steve Biko as fit for the 800-mile trip to Pretoria, which killed him. Fearing a new scandal, he instructed Orr to photocopy all the medical records to ensure that any blame fell on the security police rather than the Prisons Department. Her affidavit in support of an injunction, and those of the prisoners, illuminated the role of courts in restraining state abuses by exposing evil and mobilizing public opinion.

Chapter 8. Government also used the Emergency to strengthen its already elaborate censorship apparatus by empowering the Minister of Home Affairs to suspend a newspaper for three months—a sanction that could bankrupt it. The principal target was the “alternative press” and especially the New Nation, the largest black weekly, sponsored by the South African Catholic Bishops’ Conference. The court had to decide whether the requirement that the Minister conclude that the paper fanned uprisings or unrest, stirred up feelings of hatred toward the security forces, or promoted the public image of any unlawful organization placed sufficient limits on his discretion to allow judicial review.

Chapter 9. In the mid-1980s the government launched three major treason trials, the first two targeting the UDF. A judge dismissed one when transcriptions of video- and audio-taped meetings proved hopelessly inaccurate. Heavy prison sentences in the second—the longest trial in South African history—were overturned on procedural grounds. Consequently, government had a great deal riding on the third, intended to discredit the trade unions and civic associations by accusing them of aspirations to “dual power” and implicating them in the excesses of people’s courts. Justice van der Walt, educated during the trial by his first visit to a black township and lengthy colloquies with the accused about South African politics, had to decide whether the activities of the Alexandra Action Committee, documented in its fortuitously preserved minutes, demonstrated treason, sedition, or subversion.

Chapter 10. Grand apartheid was South Africa’s ultimate obscenity, compared to the Holocaust, the destruction of aboriginal communities in the Americas and Australia, and contemporary “ethnic cleansing.” In a vain effort to consign all Blacks to independent homelands so as to justify treating them like aliens, South Africa forcibly removed an estimated 3.5 million Blacks. The Magopa were the last victims. Three months after losing its nerve under the scrutiny of television cameras, security forces swooped down in the middle of the night to cart off residents. Although the Appellate Division later invalidated the removal, government had already nullified this victory by expropriating the land. After years of wandering in the wilderness, Magopa began to return, first to clean ancestral graves and then to resume farming and herding. Although the Supreme Court granted an eviction decree, the Appellate Division had to reconcile the government’s legalistic entitlement with its commitment to reform after the unbanning of the ANC and release of Mandela.

Chapter 11. When the government no longer could remove Blacks physically, it tried to incorporate them into the homelands and persuade the six that had not done so to accept “independence.” Only the corrupt rulers of KwaNdebele could be swayed, bribed by the offer of Moutse, an adjacent territory nearly as large and far better endowed. Justifiably terrified of KwaNdebele oppression, Moutse invoked the apartheid ideology of ethnic purity, asking the courts to nullify incorporation because of linguistic and cultural differences between the two groups. While this case was pending, many KwaNdebele residents continued to resist independence. One tactic was to attack the disenfranchisement of women by arguing, in the world’s only country with a racially-exclusive franchise, that a sexually-exclusive franchise violated natural justice.

Chapter 12. Government’s remaining tactic was to make life so unpleasant for black township residents that they would move “voluntarily.” In Oukasie, the “old location” of Brits, a court ordered the white superintendent to reallocate vacant houses and plots to residents, moved in part by his vulgar rebuff of an applicant. Government responded by “disestablishing” the township and then declaring it an “Emergency Camp,” which authorized government to promulgate intolerably restrictive regulations on movement and economic activity and to raise rents. This time residents asked one of the more conservative judges to invalidate the declaration on the ground that people living in their own houses, however miserable, were not homeless.

To lay a foundation for these narratives of resistance through law, the next chapter offers a framework for approaching the relationship between law and politics and an overview of the pertinent post-war South African history. After presenting the ten case studies I synthesize what we have learned about the roles of law in the struggle against apartheid and extrapolate this experience to post-apartheid South Africa and resistance to other oppressive regimes.

*O 26 (9.8.68). This was Auden’s response to the Soviet tanks that crushed the Prague spring. I encountered it in Francis Wilson’s foreword to the 1989 reissue of Charles Hooper’s powerful account of women’s resistance to the pass laws in the Western Transvaal in the 1950s.

**It is impossible to write about South Africa without employing the regime’s racist terminology. I generally use Black as synonymous with African and as distinguished from “Coloured” and Indian. Beginning with the black power movement of the 1970s, however, the three groups sought to weld a united front in opposition to apartheid, so I use black to include all three.

Chapter 2
Politics by other Means?

The Rule of Law is the greatest political achievement of humankind. The Rule of Law is a miracle; it is nothing less than man protecting himself against his own cruelty and selfishness. (Alan Paton)¹

Law and Politics

Rechtsstaat: the ideal of apolitical law

The relationship between law and politics is the central question of jurisprudence. Is law, like war, merely politics by other means? Or can legal institutions be relatively autonomous, reaching decisions that do not simply reflect political forces and significantly constraining state power?

The controversy has been most intense with respect to adjudication. On one side are those who believe in the possibility and desirability of apolitical law: German pandectists striving for Weberian formal rationality, English positivists claiming that judges discover rather than make law, and Americans championing the passive virtues, strict construction, and original intent. On the other are those who maintain that law is inescapably political: German “free decisionists,” natural lawyers, American legal ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• CONTENTS
• Foreword
• Foreword
• Foreword
• Preface
• Glossary of Acronyms and Foreign Words
• Chapter 1 Speaking with the Ogre
• Chapter 2 Politics by Other Means?
• Chapter 3 Carving Loopholes in the Pass Laws
• Chapter 4 White Resistance to the Military
• Chapter 5 Seeking Recognition
• Chapter 6 Mpophomeni and the War in Natal
• Chapter 7 State Terrorism: The Response of Law and Medicine to Police Torture
• Chapter 8 Censorship and the Closure of the New Nation
• Chapter 9 The Alexandra Treason Trial
• Chapter 10 Bakwena ba Magopa: The Last Forced Removal
• Chapter 11 Moutse and KwaNdebele: Ethnicity and Gender in the Challenge to Grand Apartheid
• Chapter 12 Disestablishing Oukasie
• Chapter 13 The Roles of Law
• Notes
• References
• Index