White Man's Justice: South African Political Trials in the Black Consciousness Era
By Michael Lobban
Oxford University Press, 1996, 288 pp
Politics by Other Means: Law in the Struggle Against Apartheid, 1980-1994
By Richard Abel
Routledge, 1995, 644 pp
These two excellent and complementary works by legal academics use multiple case studies to explore the ways South Africa's legal system both constrained and reinforced the state's power to suppress popular resistance before 1994. In the final years of the apartheid era, the system drew increasing attention from human rights specialists fascinated by the relationship between law and politics in undemocratic societies. Were South Africa's courts -- West European in inspiration and praised by many as fair -- a bulwark of the system, or its potential Achilles' heel? A politically supreme white-controlled parliament made the laws, and an all-white judiciary applied them; traditions of common law were strong, but the constitution contained no bill of rights, and courts lacked powers of judicial review. As black opposition intensified, the system increasingly became a paradox of overt legalism and covert illegality including torture, assassinations, and state-sponsored vigilantism.
Lobban focuses on the 1970s and Abel on the 1980s. In the earlier period, political trials centered less on political violence, at that time still rare, than on the dissemination of antigovernment ideology. Given the discretionary latitude afforded judges, Lobban argues that most judgments, biased by racially motivated premises and fears, reflected a desire to criminalize "bad thoughts." By the 1980s, growing antigovernment violence shifted the legal terrain to more concrete issues of evidence and vastly multiplied the number of trials in which the alleged torture of defendants and state witnesses became a subject for judicial discretion. Going beyond a discussion of high- profile political trials, Abel also provides copiously detailed chapters on legal contests involving pass laws, censorship, forced removals, trade union rights, and draft resistance. These chapters illustrate the continuing prejudices of all but a handful of judges but also how a small number of dedicated South African human rights lawyers were able to win limited but politically significant victories when the Pretoria government increasingly needed to present a reformist image. In the end, both authors reach a somewhat inconclusive verdict: in South Africa's long liberation struggle, law and the courts were a major part of the problem and only a relatively small part of the solution.