Hamstrung Civil Rights Lawyers, Courts Both Show Courage in S. Africa

This country’s small band of civil rights lawyers has been challenging the government’s vast powers and winning impressive victories in courts that for decades have favored the state.

Unable to contest the constitutionality of security laws that allow the government to assume virtual martial-law powers and that permit indefinite detention without trial, the lawyers are bringing suits which argue that the government has gone too far, has not obeyed its own laws and simply does not know what it is doing.

Judges over the years have generally upheld the legality of apartheid and have not often questioned the state’s security actions. But in recent weeks they have ruled in half a dozen major cases that the government was acting unlawfully in much of its current crackdown on political unrest.

In one decision after another on the two-month-old national state of emergency, South Africa’s courts have reaffirmed the right of the government’s critics to speak out against it and declared invalid regulations permitting indefinite detention without charge.

Protecting Citizens

They have attempted to protect ordinary citizens from arbitrary arrest and ordered the police not to torture political detainees and to allow them to see their lawyers. They have also restricted police powers to impose legally binding regulations, such as nighttime curfews, bans on wearing protest buttons or T-shirts or prohibitions of anti-government meetings.

Faced with a growing number of lawsuits, the government often has backed down--releasing detainees or revoking restrictions--or made out-of-court settlements rather than risk precedent-setting rulings.

The opposition lawyers acknowledge that, measured against the powers the government has under South Africa’s strict security laws and those it assumed under the even more stringent state of emergency imposed June 12, their gains have been small. The basic legality of the state of emergency has been upheld.

Basic Powers Untouched

“These cases, while they are having some effect, have only attacked the state of emergency at its margins,” Nicholas Haysom, a civil rights lawyer, commented. “The authorities may be harassed by having to answer these court actions and justify themselves, but their basic powers have not really been diminished.”

The courts have not significantly reduced the authority President Pieter W. Botha gave the South African police commissioner, Gen. Johan Coetzee, under the state of emergency to take whatever action he believes necessary to end civil unrest.

“The courts have not brought relief on a broad level or on a political level,” Ismail Ayob, the lawyer for imprisoned African National Congress leader Nelson Mandela and his wife, Winnie, said, “but they have alleviated the plight of some individuals.

“The decisions may also be having a salutary effect in preventing some abuses by reminding those in authority that, even under this unjust system . . . they are still answerable before the courts.”

Sections Invalidated

For a while this week, it looked as if the impact of the court rulings may have been broadened substantially by the decision of the Natal Supreme Court in Durban declaring invalid key sections of the emergency regulations permitting indefinite detention without charge. If upheld against an urgent government appeal, the ruling will free the estimated 10,000 people being held without charge. Hundreds of applications were filed Tuesday for the release of detainees across the country, although the Durban ruling technically applies only in Natal. Government officials said they would fight those applications.

Legal observers said the ruling also might be used to challenge virtually all the regulations that the government has imposed under the state of emergency on grounds that Botha, in making the regulations, exceeded the authority given him by Parliament. But another three-judge panel, sitting in Pietermaritzburg in the same province, contradicted the Durban court on Thursday, ruling that Botha had not exceeded his authority in permitting the police to detain anyone indefinitely.

Louis le Grange, the minister of law and order, declared Tuesday that the government had not accepted the Durban decision and would appeal against it. The appellate courts now will resolve the contradictions between the Durban and Pietermaritzburg rulings.

Yet, the civil rights lawyers do see two major gains beyond the cases that they have won recently:

--Despite efforts by Botha and his ruling National Party to put the government above the courts and to prevent any judicial review of its actions in security matters, the courts have repeatedly upheld the individual’s right to appeal to them for redress of grievances and their own right to review the government actions.

--In many of the decisions, important legal precedents are being laid down by some of the country’s most liberal judges, and these may help to broaden civil rights here in the future.

“We have not won the great, smashing victories we would have liked, but that is not realistic, given our legal system,” civil rights lawyer Haysom commented. “What we have seen, and it is important, is greater independence of the judiciary from the executive. The judges are in a far more assertive mood today than for at least 20 years.”

Brian Bamford, a member of Parliament from the white opposition Progressive Federal Party and a leading trial lawyer, sees South African courts demonstrating that, “far from being an instrument of government will,” they are “the ultimate protector of human rights . . . and, in this sense, stand adversary to the government.”

Sees Judges Changing

In Bamford’s analysis and that of a number of other practicing lawyers and law school professors, more judges are moving away from the conservative view, which has been traditional here, that their proper role in the face of government actions is to implement the law, and if necessary interpret what Parliament has enacted, but not to go beyond this.

“Our constitutional system enables Parliament to pass any law it pleases, no matter how evil or arbitrary,” said Gilbert Marcus, a research officer at the Center for Applied Legal Studies at the University of Witwatersrand. “Unlike the American Supreme Court, our courts have no power to strike down statutes that violate fundamental freedoms enshrined in the constitution.

“Our courts thus are required to operate within a framework of a myriad of repressive and restrictive enactments. . . . Their task is to give effect to the supposed intention of the legislature.”

While this remains true, judges are increasingly open to the arguments that invoke fundamental legal principles that permit them to uphold civil rights against government actions.

Argued Roman Principle

Arguing, for example, that detention without trial under the country’s internal security act violated the ancient Roman prescript of audi alterem partem, requiring a judge to hear the other side of a case, one of the leading civil rights lawyers, Ismail Mahomed, secured the freedom of Paddy Kearney, a Durban church worker.

Upheld by South Africa’s appeals court, that decision was then used to overturn dozens of government orders, all issued under security laws, that “banned” opposition leaders, such as Winnie Mandela. “Banned” persons were forbidden to be with more than one person at a time, barred from political activities and restricted in their travels. Local newspapers were not allowed to report what they said.

Jules Browde, another prominent civil rights lawyer and defense attorney, used an equally ancient principle of Roman law, delegatus delegare non potest, meaning that a person with delegated authority may not in turn delegate it to someone else. With it, he won a court order last month effectively overturning three-quarters of all the emergency regulations because they were imposed by regional police commanders, not the police commissioner himself.

A few days later, however, Botha restored this authority to the regional commanders with a new proclamation.

English Common Law

Both of these arguments were based on principles of 1st-Century Roman law, as interpreted and codified by Dutch jurists in the 17th and 18th centuries, when the Roman-Dutch legal system, as it is known, was brought to South Africa by Dutch settlers.

Civil rights lawyers have also used similar principles of English common law, South Africa’s inheritance from its years as a British colony, to attack other emergency regulations.

Mahomed won a major victory last month, for example, when a three-judge panel in Durban agreed with his argument that most of the regulations intended to silence the government’s critics by prohibiting “subversive statements” were too vague. The court threw out several of the regulations and rewrote others to soften them.

Court orders permitting legal access to political detainees, who are often held in solitary confinement, have been based largely on the common law right of anyone to seek legal redress of a grievance.

Often, however, these arguments fail, usually because the points raised are too small, or there is conflict between the principles of Roman-Dutch law and English common law. Sometimes it is because the judges feel that they would be going beyond their duty to interpret what Parliament has enacted if they rule against the government.

Found Botha Misstep

Mahomed urged the Durban judges, regarded as the most liberal in the country, to declare unlawful all the emergency regulations and the emergency proclamation itself. He argued that the government had failed to present them to Parliament within 14 days, as required by law, for debate and possible repeal.

Botha had indeed violated the law, the court found, in an amazing indictment of the government. But it noted that Parliament had not explicitly declared that a state of emergency would lapse if not presented for review. So Parliament itself would have to remedy the matter, it ruled.

Botha’s National Party, in fact, has effective control of Parliament and a review would not have made any difference. The government, in not submitting the emergency to parliamentary review, was merely avoiding a politically embarrassing debate.

In criminal trials, South African courts generally follow English rules of evidence, and lawyers such as Mahomed have been able with increasing frequency to persuade judges to throw out many of the state’s political cases. For instance, treason charges brought against 16 anti-apartheid activists and labor leaders were dismissed on grounds that much of the evidence had been tampered with or even faked.

Rights Lawyers Frustrated

The lawyers who argue the civil rights cases--they include some of the most distinguished advocates in the country--feel deeply frustrated at their inability to deal with the substance of the issues.

“Because of our whole political and legal system, we are forced to attack really fundamental issues from the side--and sometimes we succeed if we find an opening, sometimes we can strike a glancing blow, and sometimes we just fail,” commented a leading trial lawyer, who asked not to be quoted by name.

“We often have to mount very technical arguments, some that even we think are a bit silly, because Parliament is supreme and because the government has the practice now of writing obstacles to judicial review into the legislation--clauses that say a court may not inquire into this matter, or that a government official’s judgment or mere opinion may not be questioned, and that even if a policeman kills someone, he may not prosecuted. . . .

“The judges in turn sometimes have to make their decisions on the interpretation of a phrase, the meaning of a word or two or the position of a comma or a semicolon when everyone knows that what we are talking about is something far more important, perhaps even vital to the future of the country.”

Courts Guard Turf

The courts perhaps have been most vigorous in defending their authority to review government actions, and some legal observers see the government’s attempts to prevent such reviews as a spur to the current assertion of judicial independence.

Justice John M. Didcott, one of the country’s most liberal and respected jurists, harshly criticized the government last month for including in its definition of a “subversive statement” a phrase that prohibited comment on the administration of justice. This is effectively an unlawful usurpation of judicial authority, Didcott said, and the courts would not allow it.

Davis of the University of Cape Town, along with most other legal observers, said that such activism is a welcome corrective to the government’s “concentration of more and more power in its own hands, and the court’s role should not be underestimated.”

But the limits on the courts remain quite strict, and there is renewed discussion on adoption of a bill of rights guaranteeing civil liberties to broaden the courts’ powers in reviewing government action and legislation enacted by Parliament.

Hendrik J. Coetsee, the minister of justice, has asked a law commission to discuss drafting a bill of rights, which might then be enacted by Parliament or added to the constitution as an amendment, enabling judges to use it to review both legislation and government actions.

“Ultimately, the answer to these problems of abridged human rights must come through the replacement of the apartheid system and minority rule with a political system that is democratic and just,” said Peter Gastrow, a Progressive Federal Party member of Parliament from Durban.