HUMAN RIGHTS IN SOUTH AFRICA:
PAST PRESENT AND FUTURE
John Dugard
At the outset I wish to thank the University of Pretoria, and particularly the Centre for Human Rights, for making my presence here this afternoon possible. I have been teaching at the Centre for very brief periods for several years. This year I have had the opportunity to spend a longer time at the Centre. I have enjoyed the experience immensely. The Centre is in the forefront of the promotion of human rights in Africa, particularly through its organization of the African Human Rights Moot Court Competition, the LLM in Human Rights and Democratisation, its publications and research programme. During 2006 the Centre was awarded the UNESCO Prize for Human Rights Education. This constitutes well deserved recognition of its major contribution to human rights in South Africa and Africa. The whole staff of the Centre are to be congratulated for this achievement, but special congratulations are due to Christof Heyns, director of the Centre until his elevation to the Deanship at the beginning of this year.
I have had a long association with the Centre, having attended and spoken at its inaugural meeting on 1 May 1986. I am very proud of this association.
I have been asked to give a personalised account of human rights in South Africa - past, present and future. I have been an observer on the fringes of the dramatic events concerning human rights in South Africa for the past fifty years. I have seldom occupied a central position but I have been close enough to bear witness and to express opinions on the subject. In some respects my role was like that of the British comedian, Spike Milligan, who was an ordinary soldier during World War II, but wrote a very witty book with the title “Hitler: My part in his downfall”. I shall resist the temptation to title my talk “Apartheid: my part in its downfall” or “The new constitution: my part in its creation!” Unlike Milligan’s book, my talk will not be witty – it will view the subject from a legal, lawyer’s perspective. And lawyers are seldom witty.
THE PAST
I wish to recall three issues from the past affecting human rights: litigation, academic comment and the growth of public interest law.
Litigation
Under apartheid, lawyers had no Bill of Rights to turn to for protection of their client’s human rights. The law was enacted by a White Parliament determined to maintain white supremacy at all costs; enforced by a brutal police that was largely unaccountable for its behaviour; and applied by a white judiciary that was largely in sympathy with Parliament and police. Despite this, lawyers managed to manipulate the law in favour of human rights by appealing to outmoded common law principles of equality and reasonableness; by exploiting loopholes in the law; by invoking judicial precedents from a previous era; and by urging the courts to follow international human rights standards. There were many failed attempts to persuade the courts to protect human rights; but there were enough successes to make this a worthwhile exercise.
Moreover, the losing case might itself bring some relief.
I was a principal practitioner of the losing case and on occasion infuriated some of my professional colleagues by raising legal arguments, often rooted in international human rights law, that were doomed to fail in court but held out some hope for human rights.
In 1968/9 I constructed a legal argument that a South African court had no jurisdiction over SWAPO leaders charged with terrorism on the ground that the Terrorism Act of 1967 had been enacted subsequent to the revocation of the South African mandate for South West Africa/Namibia by the United Nations General Assembly in 1966 and therefore had no application to the territory. Predictably the argument failed before Transvaal Provincial Division and Appellate Division (S v Tuhadeleni and others 1969 (1) SA 153 (A)), but it succeeded in elevating the issue of Namibia to the Security Council of the United Nations for the first time, resulted in an Advisory Opinion of the International Court of Justice (Legal Consequences for Status of the Continued Presence of South Africa in Namibia 1971 ICJ Reports 16) holding that South Africa was in unlawful occupation of Namibia, and saved the SWAPO leaders from being sentenced to death.
In 1979-81 an organisation, ACTSTOP, was formed to obstruct a new wave of prosecutions and evictions under the Group Areas Act in Johannesburg. A group of committed lawyers raised all sorts of legal arguments in pursuance of this goal. The main obstacle in the way of such arguments was that the Appellate Division had given its approval to the zoning of different residential areas for different races by means of proclamation in Minister of the Interior v Lockhat 1961 (2) SA 587 (A).
Although South African law does not know a strict, absolutist doctrine of precedent (stare decisis) it was “not done” to challenge the correctness of a decision of the Appellate Division. Despite this, I challenged Lockhat, arguing that it had been incorrectly decided, inter alia, on the ground that it failed to take account of international human rights norms on non-discrimination. This challenge, which resulted in the halting of all prosecutions, took nearly two years to move through the provincial division to the Appellate Division. By the time the Appellate Division, unsurprisingly, rejected the argument (S v Adams; S v Werner 1981 (1) SA 187 (A)), the National Party government had embarked on a policy of including coloureds and Indians in a Tricameral Parliament and the restarting of prosecution under the Group Areas Act had become politically impossible. (The final blow to these prosecutions was provided by S v Govender 1986 (3) SA 969 (T) (decided in 1982) which held that no person might be evicted under the Group Areas Act in the absence of alternative available accommodation.)
Sometimes the losing argument was successfully employed to avoid implementation of the death penalty. In 1988 I argued that a group of soldiers charged with staging a military coup against the government of Bophuthatswana might not be convicted on a charge of treason on the ground that treason was a crime “against the State” and Bophuthatswana failed, under international law, to qualify as a State. Obviously the argument failed as it would compel the Judge President to find that he had been unlawfully appointed, but it did succeed in “internationalising” the proceedings and avoiding the imposition of the death penalty. (See S v Banda 1989 (4) SA 519 (B).) Another argument rooted in international law that in all but one case (S v Mogerane in (1983) 100 SALJ 402) succeeded in avoiding the death penalty was that members of the military wings of the ANC and SWAPO were entitled to treatment as prisoners-of-war and not common criminals (S v Sagarius 1983 (1) SA 833 (SWA); S v Masina 1990 (4) SA 709 (A); S v Petane 1988 (3) SA 51 (C)).
In the mid-1980s Bishop Tutu’s passport was withdrawn. I challenged the lawfulness of this action in the expectation that if we lost – as we soon did (Tutu v Minister of Internal Affairs 1982 (4) SA 571 (T)) - the government would restore his passport once it had established its right to remove it. The expectation was fulfilled: shortly after we lost in court the passport was returned!
In the late 1980s an innovative legal argument had an unexpected result – it succeeded! This concerned an attempt by the government to incorporate the North Sotho community of Moutse, comprising over 120,000 people, into the homeland of KwaNdebele against their wishes in order to render KwaNdebele viable for the grant of full independence as a new Bantustan. Here the Appellate Division held that such a move was prohibited by the laws of separate development/apartheid which contemplated separate ethnic homelands! (See Mathebe v Government of the RSA 1988 (3) SA 667 (A); see too State President v Lefuo 1990 (2) SA 679 (A).) The Moutse community, overjoyed, suggested that, as I had charged no fee, I should be compensated with a young Moutse bride! I did not accept this compensation. Instead my reward was the end of the National Party’s attempts to create new Bantustans.
Academic Comment
I was a legal academic during the apartheid era. Legal academics who wrote and spoke about the injustices of apartheid played a risky game. Professor Barend van Niekerk was prosecuted twice and convicted once for contempt of court arising out of comments he made urging judges to play a more active role in the promotion of human rights (S v Van Niekerk 1970 (3) SA 665 (T); S v Van Niekerk 1972 (3) SA 711 (A); J Dugard Human Rights and the South African Legal Order (1978) 288-302). I well recall Barend van Niekerk’s testimony before the Judge President of the Transvaal Provincial Division in one case. He had a heavy cold and had been advised by a friend that mampoer was good medicine for a cold. Not surprisingly his evidence became less respectful as the effect of the mampoer was felt.
I too was investigated for contempt of court on several occasions and convicted under the Internal Security Act 44 of 1950 for reading the speech of a “banned” person (that is a person who might not be quoted). During this time legal writing in the field of human rights was an exciting enterprise for writer and publisher as prosecution, mainly for contempt of court, was always a real possibility.
Two memories come to mind arising out of my own brushes with the law. First, an investigation for contempt of court initiated by the Judge President of the Eastern Cape (Cloete JP) at which the investigating officer apologised to me. “Judges are ridiculously sensitive”, he said. “One day you will be the same!” Secondly, my prosecution for reading the speech of the banned Dr Nthatho Motlana on education. I had a painful back and was angry that Dr Motlana had been banned hours before the seminar on education held at Wits. A quick look at his banning order led me to believe that I might quote him – a view concurred in by several senior counsel and professors who were present. When I returned home that night my wife, Jane, said: “I am pleased you read Motlana’s speech – but it was illegal. If you don’t believe me, read your own book Human rights and the South African Legal Order”. I read it; Jane was right; and I was duly prosecuted and convicted – after declining an offer from the Minister of Justice of non-prosecution if I apologised!
Public Interest Law
In the late 1970s, thanks to the intervention of the Ford Foundation and Carnegie Corporation of New York, public interest legal institutions began to emerge. These institutions engaged in both litigation and public education in the promotion of human rights. Undoubtedly they did much to create a human rights culture that was to influence the drafting of the new Constitution. I directed the first public interest law body to be created, the Centre for Applied Legal Studies (CALS) at Wits University, which was soon followed by the Legal Resources Centre and the Black Lawyers Association. In 1978 when CALS was established it would have been impossible to name an institution as a human rights centre – hence the bland name of Centre for Applied Legal Studies. At that time not only the government was against such human rights activism: both the Transvaal Law Society and the Johannesburg Bar Council placed obstacles in the way of our engaging in litigation. Not because of the nature of our work, but because of the failure to charge legal fees.
I well recall the launching of Pretoria’s Centre for Human Rights in May 1986. It was not easy for the Centre at so conservative a university as Pretoria in those early days, but it persevered and is today one of South Africa’s premier human rights centres.
THE PRESENT
I tend to see the political change that occurred in the early 1990s up to the present as the “present”. This is because the past fifteen years may be characterised as the “constitutional years” for lawyers. We have seen the adoption of perhaps the most human rights-friendly constitution in the world and the creation of a Constitutional Court that has become the leading exponent of human rights in the world’s domestic jurisdictions.
I served on the technical committee that drafted the Bill of Rights in the 1996 Constitution. I well recall the pressure that we were under to include “animal rights” from South Africa’s pet lovers. I recall, too, the dispute over the inclusion of social and economic rights (sections 26, 27 and 29). Fortunately, the Democratic Alliance opposed such rights which made them more attractive to the ANC – despite the fact that it – as government – would have to defend its social and economic policies in the light of these provisions.
Article 24, on the right to a decent environment was included one weekend when the technical committee met in Franschhoek. In such beautiful surroundings we were inspired to take such action.
At this time I had hoped to be allowed to play a meaningful role in human rights in South Africa, but it was not to be. Although short-listed in the last ten from which six judges to the Constitutional Court were to be selected, I failed to make it to the Court. So too with the Human rights Commission, for which I was originally selected but later “deselected”; and the Truth and Reconciliation Commission. I did, however, have the pleasure in participating in the drafting of the legislation for this Commission.
THE FUTURE
What is there to say about the future of human rights in South Africa? Allow me to make three comments – two on the domestic scene and the other on the international scene.
The Domestic Front: Access to Justice
In the apartheid years, the invasion of the civil and political rights of the individual enjoyed priority. Torture, judicial executions, restrictions on freedom of expression, assembly and movement were the main concerns of human rights lawyers. Today, poverty and the failure to deliver essential services to the majority of South Africa’s people, constitute the main threat to human rights. South African courts, particularly the Constitutional Court, have been too little involved in such matters. (Two decisions, one on the right to housing (Government of RSA v Grootboom 2000 (1) SA 46 (CC)) and another on the right of persons with HIV/Aids to medication (Minister of Health v TAC 2002 (5) SA 721 (CC)) stand out as notable exceptions.) There are a number of reasons for this: the strict jurisdictional rules governing direct access to the Constitutional Court, the lack of proper legal aid to the poor, the failure of NGOs and the Human Rights Commission to concern themselves sufficiently with social and economic litigation, and the complexity of evidence-gathering to mount such cases (Perhaps there is need for the “Brandeis brief” in South Africa?). Nevertheless if the courts are not to become alienated from the majority of the population, they will have to become more involved in such cases.