Introduction

This is a study of the South African legal system and of the part it plays in the South African body politic. The emphasis is upon law and not politics. No attempt is made to describe or to examine the political structure except in so far as it impinges upon the legal process. The reader in search of a comprehensive study of the "South African problem" is advised to read one of the many excellent texts on modern South Africa. What follows in this chapter is no more than a thumbnail sketch of the peoples of South Africa, their method of government, their legal system and its personnel. Its purpose is to lay the foundation upon which the rest of this study seeks to build.

1. South Africa and Its People

South Africa is over five times the size of Great Britain, or larger than Germany, France, and Portugal put together. The country is divided politically into four provinces — the Cape Province, Transvaal, Natal, and the Orange Free State. In addition there are six limited self-governing territories for the African people, known as homelands, namely the Ciskei, kwaZulu, Lebowa, Gazankulu, Venda, and Qwaqwa. In October 1976 Transkei, which had been granted limited powers of self-government in 1963, became an independent state, and in 1977 Bophuthatswana was likewise granted independence. The principal cities of South Africa are Johannesburg, Cape Town, Durban, Pretoria, Port Elizabeth, and Bloemfontein.

South West Africa occupies an anomalous position. To the international community it is Namibia, an internationalized territory with an administering authority situated in the United Nations headquarters in New York. To most South Africans it was hardly distinguishable from a fifth province until developments in 1974-1975 indicated an intention on the part of the South African Government to grant it independence. Although there will inevitably be occasional reference to Namibia or South West Africa this study does not aim to include this territory within its scope.

The estimated population of South Africa (including Transkei) of over 26 million is composed roughly of 18,600,000 Africans, 4,300,000 whites, 2,400,000 colored people, and 746,000 Asians. In keeping with the policy of racial fragmentation, the main racial groups are further divided into ethnic units. The principal African ethnic groups are the Xhosa, Zulu, Sotho, and Tswana groups. The white population is broadly divided into Afrikaans-speakers and English-speakers, with the former constituting over fifty per cent of the white population. The individual's political, social, and economic status in society is dependent on the racial group, and sometimes sub-group, to which he belongs.

English and Afrikaans are the two official languages of the Republic, and Bantu languages are recognized as additional official languages in the self-governing homelands. There is no established church in South Africa, but the majority of whites belong to the Dutch Reformed Church and most members of the ruling Afrikaner elite profess adherence to its doctrines and dogmas. Other Christian churches that have large followings among all racial groups are the Anglican, Roman Catholic, Methodist, and Presbyterian Churches; and, in addition to other recognized denominations, there are some 2,000 different sects that draw support from the African population. There are about 120,000 Jews in the Republic.

South Africa has had a chequered constitutional history since the first white settlement. In 1652 the Cape was occupied by the Dutch East India Company for the purpose of establishing a refreshment station for the ships of that Company en route from the Netherlands to the Dutch East Indies. Dutch rule was replaced by British rule from 1795 to 1803 when Britain occupied the Cape in order to protect the sea route to India against the French. In 1803 it was restored to the Netherlands, then the Batavian Republic. For three years it was governed by men familiar with the revolutionary ideas that were sweeping Europe, but on the renewal of hostilities between France and Britain, the Cape was reoccupied by the British. From 1806 to 1910 it was a British colony. During the nineteenth century the eastern frontier of the Cape was gradually extended, and in 1843 Natal was annexed by Britain. In the meantime groups of Dutch settlers, disenchanted with British rule, moved into the interior and established the Orange Free State and South African Republic. The Anglo-Boer War of 1899-1902 resulted in the annexation of these republics by Britain. In 1910 the four British colonies of the Cape of Good Hope, Natal, the Orange River Colony, and Transvaal joined in the Union of South Africa which became a self-governing dominion. The last legal fetters were removed by the Statute of Westminster in 1931, when South Africa became an independent state within the British Commonwealth of Nations with the King of England as symbolic head of state. In 1948 the National Party Government came into power with its policy of apartheid (best translated as "separateness," "apartness"). In 1961 the South African Parliament converted the state from a monarchy into a republic, and in the same year, the South African Government withdrew its application for continued Commonwealth membership when other members voiced their objections to South Africa's racial policies.

Legislative power is vested in a central Parliament consisting of a lower house (House of Assembly), an upper house (Senate), and the State President. Political power is concentrated in the House of Assembly which consists of 165 white members, elected by white voters only in single-member constituencies. The Senate, consisting of 55 white senators who are either elected by white provincial electoral colleges or appointed by the Government, may only delay the passage of a bill approved by the House of Assembly. The State President is a constitutional figurehead with powers similar to those of the Queen of England. The leader of the dominant party in the House of Assembly is appointed Prime Minister by the State President and constitutes a cabinet which forms the executive government of the Republic.

Parliamentary supremacy is basic to the constitutional structure of South Africa. Parliament may make laws on any subject it pleases and no court of law may enquire into the validity of any act of Parliament except one which affects the equal language rights; but even in such a case the court may only inquire whether Parliament has followed the correct procedure. Normally...