- For example: H J Erasmus ‘Regspleging in die Gedrang’, a lecture delivered in February 1986 at the University of Stellenbosch.
- Mr Justice HC Nicholas Graduation Address, University of the Witwatersrand, 17 April 1986, quoted in CJR Dugard ‘Changing Attitudes towards a Bill of Rights in South Africa’, paper delivered at the Symposium on a Bill of Rights in May 1986 at the University of Pretoria.
- Bearing in mind that it is not possible to distinguish between purely legal and political aspects, nonetheless the emphasis in the ensuing discussion will be essentially legal.
- Although the 1983 Constitution Act introduces certain consociational elements it is submitted that the basic Westminster structure is essentially unchanged.
- Professor Mathews identifies four distinct theoretical categories viz law enforcement theories (which do not go any further than rule by law in a legally ordered society); procedural justice theories (which lay down certain standards of legality with which the legislature must comply); the rule of law as justice in the material or substantive sense (in terms of which the rule of law is regarded as a vehicle for the achievement of full social and political justice); and theories of the rule of law as the protection of the citizen's basic rights through definite rules administered by independent tribunals (which confines the operation of the rule of law to the protection of certain basic substantive human rights and freedoms). Mathews rejects the first two theories on the basis that they do not go far enough in protecting human rights whereas he regards the rule of law in the material or substantive sense as being unrealistically all-embracing. He supports the basic rights approach as constituting an effective means of protecting fundamental substantive human rights. See A S Mathews Freedom, Slate Security and the Rule of Law (1986) ch 1.
- A V Dicey Introduction to the Study of the Law of the Constitution (1885).
- John Dugard Human Rights and the South African Legal Order (1978) 38.
- Dicey op cit 10 ed (1959) 202–3.
- L L Fuller ‘Forms and Limits of Adjudication’ (1978) 92 Harvard LR 353 at 394.
- H W Jones ‘The Rule of Law and the Welfare State’ (1958) 58 Columbia LR 143 at 149–50.
- A S Mathews op cit note 5 at 23.
- Ibid.
- See, for example, the remarks made by a former Prime Minister during the ‘coloured voters” crisis to the effect that the ‘legislative sovereignty of Parliament should be placed beyond any doubt, in order to ensure order and certainty’ House of Assembly Debates 25 March 1952 col 3124
- J Rawls A Theory of Justice (1972) 61.
- Although the Constitution Act 110 of 1983 confers voting rights on Indians and coloureds it is submitted that the 1983 Constitution is structured in such a way as to preserve white political surpremacy.
- Act 27 of 1913.
- Act 18 of 1936.
- Dugard op cit note 7 at 36.
- Mr Justice Didcott in a paper presented at the Symposium on a Bill of Rights for South Africa, note 2 at 2.
- A S Mathews op cit note 5 at 24–6.
- At 24.
- B Beinart ‘The Rule of Law’ (1962) Acta Juridica 99 at 135.
- Mathews cites the example of the wide and arbitrary powers conferred on the Minister of Law and Order in terms of s46(3) of the Internal Security Act 74 of 1982 to abrogate the right of assembly:
- For example, the Ciskei Bill of Rights which sets out basic rights but does not contain any effective remedies.
- President Kruger of the Transvaal Republic referred to the testing right as a ‘principle of the devil’: Sir John Kotzé Memoirs and Reminiscences (1949) xli–ii.
- This group includes a number of Supreme Court judges as well as academics and practitioners. At present the introduction of a bill of rights is being considered by the South African Law Commission.
- Mr Justice Didcott op cit note 19 at 2.
- At 3–4.
- At 3.
- Ibid.
- Ibid.
- G V La Forest ‘Canadian Charter of Rights and Freedoms: An Overview’ (1983) 61 Canadian Bar Review 19 at 24.
- See the remarks of Van den Heever JA in R v Pretoria Timber Co (Pty) Ltd 1950 (3) SA 163 (A) at 181–2.
- C J R Dugard ‘Changing Attitudes towards a Bill of Rights in South Africa’ note 2 at 12
- Ibid.
- The present writer concedes that this idea of neutrality runs contrary to the Marxist approach to law in terms of which the law is regarded as a ‘mechanism utilized by the power bloc in society for its own needs…’. DM Davis ‘Legality and Struggle: Towards a View of a Bill of Rights for South Africa’, paper presented at the Symposium on a Bill of Rights for South Africa, note 2 at 1. However, notwithstanding this perspective, it is submitted that room exists for neutrality within the concept of a legal system.
- Mr Justice Didcott op cit note 19 at 13.
- This accords with the basic operation of the rule of law.
- Dugard Human Rights and the South African Legal Order note 7 at 373.
- Ibid.
- Ibid.
- D Basson ‘Die Regbank en ‘n Menseregtehandves’, paper delivered at the Symposium on a Bill of Rights, note 2 at 3.
- Hugh Corder Judges at Work: The Role and Attitudes of the South African Appellate Judiciary 1910–1950 (1984) 13.
- See, for example, the statement of former Chief Justice L C Steyn to the effect that the only task of the courts is to ‘ascertain the intention of Parliament…’. He goes on to warn that it is ‘improper… for a judge to rush into a political storm or into the wake of it in a strongly contested matter in which Parliament has, by way of firm deliberate policy, knowing what it is about and in the valid exercise of its legislative powers, laid down what is to be done’: L C Steyn ‘Regsbank en Regsfakulteit’ (1967) 30 THRHR 101 at 106–7.
- At 107 Steyn continues: ‘It would be an evil day for the administration of justice if our courts should deviate from the well recognized tradition of giving politics as wide a berth as their work permits.’
- Corder op cit note 43 at 2.
- From the address by the Hon Mr Justice JPG Eksteen to the East London Attorneys' Association on 10 August, published in 1971 (88) SALJ 518 at 520. The learned judge continued as follows:
- ‘… even the most stringent critics readily concede that however much they may dislike our country and its policies our judiciary stands beyond reproach and commands their respect.’
- For example, see Chief Justice Steyn's response to criticism of the judicial approach to the protection of human rights by Mathews & Albino in (1966) 83 SALJ 16 contained in ‘Regsbank en Regsfakulteit’ note 44.
- Writers such as A S Mathews, C J R Dugard, B van Niekerk, and (more recently) E Cameron, H Corder and C Forsyth have, among others, all made valuable contributions in this respect.
- Dugard Human Rights and the South African Legal Order note 7 at 303.
- C J R Dugard ‘The Judicial Process, Positivism and Civil Liberty’ (1971) 88 SALJ 181 at 187.
- It is interesting to note that Mr Justice FN Broome, a former Judge President of Natal, distinguished between those two groups shortly after his retirement: Not the Whole Truth (1962) 262–3.
- Erasmus op cit note 1 at 24–5.
- Dugard Human Rights and the South African Legal Order note 7 at 381; Corder note 43 at 237; C F Forsyth In Danger for their Talents: A Study of the Appellate Division of the Supreme Court of South Africa from 1950–80 (1985) at 225–6.
- E Cameron ‘Legal Chauvinism, Executive-Mindedness and Justice — L C Steyn's Impact on South African Law’ (1982) 99 SA LJ 38 at 60.
- F McWhinney Judicial Review in the English-Speaking World (1956) 186–7.
- Corder op cit note 43 at 243.
- It will be subsequently argued that it is preferable to retain the existing judicial set-up rather than institute a special constitutional court.
- See, for example Dugard Human Rights and the South African Legal Order note 7; Camer on op cit note 55.
- 1960 (4) SA 709 (A).
- 1964 (2) SA 545 (A).
- Basson op cit note 42 at 2.
- Advances made in the sphere of racial equality by such cases as R v Abdurahman 1950 (3) SA 136(A) and R v Lusu 1953 (3) S A 484 (A) have been negated by the subsequent enactment of the Reservation of Separate Amenities Act 49 of 1953.
- M Corder op cit note 43 at 243.
- Erasmus op cit note 1 at 24–5.
- 1960 (4) SA 709 (A).
- Act 49 of 1953.
- At 710.
- Dugard Human Rights and the South African Legal Order note 7 at 367.
- John Dugard ‘Some Realism about the Judicial Process and Positivism — A Reply’ (1981) 98 SALJ 372 at 382.
- For example: freedom from arbitrary arrest and detention without trial; freedom from cruel and unusual punishment; the audi alteram partem; equality before the law; freedom of expression etc (Ibid).
- C J R Dugard Human Rights and the South African Legal Order note 7 at 382.
- C E Hoexter ‘Judicial Policy in South Africa’ (1986) 103 SALJ 436 at 442.
- It is interesting to note that Dugard resorts to South Africa's international legal obligations as set out in various human rights conventions in order further to reinforce a legal basis for this standard. See ‘Some Realism About the Judicial Process and Positivism — A Reply’ note 70 at 382.
- 1934 AD 167.
- At 191.
- Ibid.
- 1916 TPD 578.
- 1934 AD 11.
- At 584.
- At 37.
- Dugard Human Rights and the South African Legal Order note 7 at 384.
- At 385.
- S v Ramgobin & others (2) 1985 (4) SA 130 (N).
- Act 74 of 1982.
- Hoexter op cit note 73 at 437.
- 1985 (3) SA 587 (N).
- Act 74 of 1982.
- At 448.
- R Wacks ‘Judges and Injustice’ (1984) 101 SALJ 266.
- S v Ramgobin (1) 1985 (3) SA 587 (N).
- Act 74 of 1982.
- At 590, my italics.
- 1982 (3) SA 543 (N).
- Act 7 of 1958.
- Act 83 of 1967.
- At 549.
- Ibid.
- Act 7 of 1958.
- Act 68 of 1969.
- Mr Justice Didcott op cit note 19 at 3.
- Ibid.
- H Corder ‘The Supreme Court: Arena of Struggle?’, paper presented at the Symposium on a Bill of Rights for South Africa, note 2 at 22.
- Ibid.
- 1985 (4) SA 709 (D).
- 1985 (3) SA 587 (N).
- L J Boulle ‘Detainees and the Courts: New Beginnings’ (1985) 1 SAJHR 251 at 255.
- Basson op cit note 42 at 23.
- 1961 (2) SA 587 (A) at 602.
- 1982 (3) SA 717 (A).
- Act 18 of 1977 (B).
- These rights and freedoms are specified in ss 9–17 of the Bophuthatswana Constitution Act 18 of 1977 (B).
- Section 8.
- Act 83 of 1967.
- At 745.
- It has been argued that, since the accused was convicted on an alternative charge in terms of the Arms and Ammunition Act 75 of 1969, the actual result had not really been altered. However, it is submitted that, notwithstanding the important questions of principle involved, the accused's sentence was reduced from 15 years' to three years' imprisonment. This constitutes a considerable alteration of circumstances in the accused's favour.
- Dugard ‘Changing Attitudes Towards a Bill of Rights in South Africa’, note 2 at 12.
- Dugard op cit note 117 at 13.
- M Zander A Bill of Rights? 3ed (1985) 70.
- SC 1960 c 44.
- Although in the form of an ordinary Act of Parliament, s 2 of the Act conferred novel powers on the judiciary to construe and apply statutes in accordance with the Bill of Rights.
- Section 2 of the Bill of Rights Act SC 1960 c 44.
- See for example R v Gonzales (1962) 32 DLR 2d 290 where Davey JA held that the effect of the Bill of Rights was merely to provide a canon of construction for legislative interpretation. Thus he argued that the court's function was merely to construe offending legislation in accordance with the Bill of Rights. Where this was not possible, in the sense that ‘prior legislation cannot be so construed and applied sensibly, then the effect of s 2 is exhausted, and the prior legislation must prevail according to its plain meaning’ (at 292).
- (1970) 9 DLR 3d 473.
- Constitution Act 1982 (Incorporating the Charter of Rights and Freedoms).
- Dugard ‘Changing Attitudes Towards a Bill of Rights in South Africa’, note 2 at 1.
South African Journal on Human Rights
Volume 3, 1987 - Issue 2