A Fight to Preserve Remnants of Law in S. Africa

In June, when President Pieter W. Botha proclaimed a state of emergency just about three months after the previous one ended, he said that the ordinary laws of the land were inadequate to contain the unrest raging throughout South Africa.

Those “ordinary laws” include six detention laws, two of which provide for indefinite detention, legal provisions for banning both organizations and individuals without effective safeguards for the victims, the arbitrary power to ban meetings and processions, the authorization of political censorship and several vague security crimes.

The word ordinary , when used to describe such measures, clearly is required to endure severe semantic strain, since this permanent legislation goes well beyond what the Western democracies have enacted as emergency laws in times of crisis. A security program that the average American would find “Draconian” or even “horrendous” is quite casually dismissed as inadequate in the latest South African emergency proclamation--a perfect example of through-the-looking-glass language.

Because these permanent divisions of the regular law were enacted by the South African parliament, they have to be enforced by the courts, which in the absence of an entrenched bill of rights cannot strike down even the most grotesque product of the legislature. Under the prevailing legal system, judges are condemned to a handmaiden role, which permits them to interpret security legislation narrowly--at best.

For a long time the courts did not exploit the full potential of this limited intervention technique. They refused, for example, to order that solitary confinement detainees (under the now-repealed 90-day detention law) should have access to reading and writing materials, despite the fact that the legislation did not specifically withdraw that right. Recently the courts have intervened more decisively, ruling that the detaining authority is required to establish grounds for indefinite detention for purposes of interrogation and that the minister of law and order must give meaningful reasons for indefinite preventive detention. This new activism may be attributed to a judicial concern for loss of legitimacy, alarm at the growing lawlessness in the society and, perhaps, to the constant criticism of the courts by academics.

Whatever the reasons, these tentative judicial controls have resulted in a frenzy of court activity during the current emergency. The judges have startled even civil-rights lawyers by striking down emergency regulations, releasing detainees and ordering the authorities to stop illegal activities such as physical abuse of detainees. A proper assessment of this judicial intervention requires a brief analysis of the 1986 emergency regulations.

The regulations are promulgated by the president, whom the public safety act appoints as a subordinate lawmaking authority. Acting in that capacity, he has made some remarkable extensions to the permanent security laws.

The 1986 regulations include a new detention provision designed to facilitate en masse detentions with a minimum of formality (approximately 10,000 people have been detained since the emergency began); penalties for “subversive” statements, which include someone saying something likely to cause hostility between individuals or groups; the power to disperse gatherings by the use of such force as the police deem necessary; warrantless searches of homes and other premises; arbitrary power to ban and seize publications, including newspapers; a legal indemnity for members of the police or defense forces for any act done in good faith in the course of their emergency duties.

These mind-blowing measures are intended to provide legal backing for a lawless police power. A judiciary that failed to intervene while the rule of law is in the final stages of dissolution would forever be condemned to a spectator role. The reason the judiciary has been able to intervene is that the emergency regulations are subordinate legislation, not acts of parliament--the latter are beyond court scrutiny. Subordinate legislation, even if made by the president, may be tested for compliance with the purposes of the statute under which it is made, and struck down if it is beyond the powers of the subordinate lawmaker.

It is well established in South African law that regulations that are grossly unreasonable, vague and uncertain, or that stray beyond the purposes of the enabling statute, are invalid and unenforceable. By invoking this principle the courts have been able to invalidate several emergency regulations. In addition, the courts have a limited measure of control over officials acting under statutory authority. When these officials can be proved to have been motivated by bad faith or improper purposes, their orders (such as detention decisions) may be set aside. It was by making use of this limited authority that the courts have made a dramatic effect on the 1986 emergency.

Yet that effect is strictly limited for several reasons. First, a measure struck down by the courts can always be restored in unchallengeable form by parliament. Sometimes the president alone is able to nullify a court decision, as Botha did when the courts required the detaining authority to give a hearing to emergency detainees. By amending the regulations the president deprived detainees of a prior right to be heard, and that amendment so far has survived challenge in the courts.

Second, the courts frequently can only intervene if they have proof of dishonorable or improper motives by the security forces. Since the emergency procedures frequently are blanketed in secrecy, such proof usually is impossible to obtain. This explains why the courts have been able to release only a handful of the 10,000 emergency detainees.

Finally, the public safety act gives the president extremely wide powers, and a measure has to be grossly unreasonable for the court to invalidate it. These three considerations explain why even after court intervention the security forces in South Africa largely are beyond accountability. Nevertheless, the significance of the struggle between lawyers and the state authorities should not be dismissed.

Lawyers are fighting to preserve the remnants of the rule of law in South Africa, and the consequences of defeat would be catastrophic for all South Africans.