South African Justice

I would like to comment on some of the developments following my article, “South Africa: The Death of Justice,” in the August 4 issue. Contrary to the predictions of most of the observers I talked to in Johannesburg, Breyten Breytenbach was acquitted by the judge on the main charges of terrorism that had been made against him. Mr. Breytenbach has been returned to prison to serve the remainder of the nine-year sentence he was given in 1975. Nine of the twelve black members of the African National Congress charged with terrorism, however, were convicted, and five were given life sentences, probably to be served in the bleak isolation of Robbins Island. Breytenbach’s acquittal received widespread publicity. The ANC convictions and sentences were hardly noticed in the American press. Other trials for terrorism and for violation of the passbook laws continue as the political situation becomes more tense.

Predictably, the South African government and its press attacked my article. Mr. Johan Adler, the Deputy Consul General of South Africa, called it “ludicrous claptrap.” My claim that the South African judiciary is not independent was also resented by many in South Africa who are antagonistic toward apartheid. The Johannesburg Star on July 20, in its lead editorial attacking my article, said, “No matter how distasteful South Africa’s laws may be, the South African judiciary has built an enviable reputation for independence and fairness.” Many in South Africa believe that the South African legal system remains an element of dignity and decency in an otherwise flawed system.

South African government officials also disputed my claim that the acquittal of Breytenbach was an attempt to show publicly that justice still exists in South Africa—while the courts meanwhile proceed ruthlessly against, members of the ANC and other blacks in the never-ending trails on political charges and for violations of the passbook system.

The claim that the South African judiciary is not independent is hardly mine alone and requires some discussion. South Africa is the one country in the world in which racial discrimination is not only openly supported by the government but is expressly written into the laws. These facts are generally well known. What is less known is the manner in which and by whom the system of apartheid is enforced.

Albie Sachs, a South African legal scholar, in his book Justice in South Africa, points out that it is the courts and legal system—both judges and lawyers—that enforce and validate apartheid. He presents detailed arguments to show that the South African legal system’s primary aim is to assert the domination of whites over blacks in South Africa. As he writes:

Supporters of Apartheid have tended to argue that judges have simply been carrying out the law as laid down by Parliament in their traditionally neutral and fair manner. Opponents of Apartheid, on the other hand, have tended to claim that in implementing the laws the judges have leaned unduly in favor of the Executive and abandoned their former impartiality.


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