The South African Bill of Rights and the ‘Duck/Rabbit’
| Date | 01 July 1997 |
| Author | Alfred Cockrell |
| DOI | http://doi.org/10.1111/1468-2230.00096 |
| Published date | 01 July 1997 |
The South African Bill of Rights and the ‘Duck/Rabbit’
Alfred Cockrell*
The eminent French historian Franc¸ois Furet said that the American Revolution was far
more important than the French or Russian revolutions because it created the form of
government that much of the rest of the democratic world, in fits and starts, has now begun
to copy. We are envied for our innovation and increasingly imitated: in Paris and Bonn and
Rome, in New Delhi and Strasbourg and Ottawa, even, perhaps, in the Palace of
Westminster, and even, perhaps one day, in . . . Johannesburg.
1
For the greater part of this century, the South African legal order has functioned in
terms of a constitutional doctrine of parliamentary sovereignty which sanctioned
widespread violation of human rights by legislative and executive authorities.
Given this history, it was inevitable that anti-apartheid forces would view with
suspicion the National Party Government’s sudden commitment to the supposed
virtues of a Bill of Rights in the late 1980s. Since this conversion seemed to
coincide all too fortuitously with the imminent demise of white minority rule, a
Bill of Rights was at the time widely perceived by the disenfranchised as being a
disguised mechanism for the entrenchment of vested privileges. Yet such
scepticism proved to be transient (at least on an official level), for once the
process of constitutional negotiations came properly on track, it appeared that
endorsement of the need for a justiciable Bill of Rights was one of the few points
of genuine agreement across the political spectrum. It was by this tortuous route
that the current position has been reached, in terms of which the new South African
Constitution includes a justiciable Bill of Rights which announces itself as ‘a
cornerstone of democracy in South Africa.’
2
This article sets out to explore some of the factors which precipitated the
constitutional coup d’e´tat in terms of which a lustrous doctrine of ‘constitutional
supremacy’ came to depose a tarnished notion of ‘parliamentary sovereignty’ in
South Africa. I will begin by outlining the crisis of legitimacy which confronted
the legal system at the end of the apartheid era, and will attempt to situate the
ensuing ‘Bill of Rights debate’ as a partial response to that crisis. The South
African Bill of Rights is then described, in both its ‘interim’ and its ‘final’ guise.
The concluding section of the article highlights some interesting features of South
Africa’s transition to a Bill of Rights era, and attempts to provide an assessment of
the overall significance which attaches to the incorporation of a Bill of Rights into
South Africa’s democratic dispensation.
The Modern Law Review Limited 1997 (MLR 60:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 513
* University of the Witwatersrand, Johannesburg.
This article is a revised version of a lecture given at the London School of Economics in January 1997
under the auspices of the Shimizu Trust. I am grateful to Dr Theunis Roux and Professor Martin Brassey
for their challenging criticisms of the text of the original lecture.
1 R. Dworkin, Life’s Dominion: An argument about abortion and euthanasia (London: HarperCollins,
1993) 123–124 (emphasis added).
2 Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), s 7(1).
Law as an instrument of repression during apartheid
Though the stink of apartheid is still fresh in the nostrils of many South Africans, it
will be necessary to begin this article by turning backwards to face the stench in
order to be reminded of what apartheid signified for the legal system. For the
greater part of this century, the legal system in South Africa functioned so as to
entrench the privileges of white inhabitants while depriving black South Africans
of even the most basic of human rights. ‘Apartheid’ (‘separate development’) was a
programme of institutionalised racism which exploited the machinery of the law in
order to ensure that different races would develop both separately and unequally.
The essential elements of the apartheid exercise in ‘social engineering’
3
may be
summarised tersely by means of the following five points.
First, every South African was officially classified at birth as being a ‘white
person,’ a ‘coloured person’ or a ‘black person.’
4
Persons classified as black were
further subdivided as belonging to a specific ‘ethnic group.’ Marriage across the
colour line was expressly prohibited.
5
It was this system of racial classification
which provided the institutional underpinning for apartheid, since all aspects of the
private and public life of the citizen would be influenced by the racial group to
which he or she had been assigned.
Secondly, persons classified as being ‘non-white’ were denied the most
fundamental political right of all, namely the right to participate in elections for
the South African Parliament. After 1983, the so-called ‘coloured’ and ‘Indian’
groups were allowed to vote for separate houses in the tricameral Parliament,
6
but
the constitutional cards remained carefully stacked so as to ensure that white
hegemony could not be challenged. Black South Africans were expected to
exercise second-class political rights in those bogus bantustans (‘homelands’) to
which they had been unilaterally assigned citizenship.
7
Thirdly, an intricate panoply of statutory provisions divided up the land of South
Africa into zones of racial exclusivity. Two Land Acts dating from the early part of
the century
8
effectively set aside 12.5 per cent of the land for black people, who
comprised 70 per cent of the South African population. The remaining 87.5 per
cent of the land was set aside for the exclusive use of persons classified ‘other than
black,’ and the right of black people to enter ‘white’ urban areas so as to take up
employment was severely constrained.
9
Pockets of urban land were further
demarcated for the exclusive ownership and occupation of designated racial groups
3 A South African judge, Holmes JA, famously described the Group Areas Act as a ‘colossal social
4 In terms of the Population Registration Act 30 of 1950 (which was repealed in 1991). The statutory
definitions of race tended towards gibberish. For example, s 1(1) of the Act defined a ‘white person’
as:
a person who (a) in appearance obviously is a white person and who is not generally accepted as a
coloured person; or (b) is generally accepted as a white person and is not in appearance obviously
not a white person ... [sic].
5 By the Prohibition on Mixed Marriages Act 55 of 1949 (which was repealed in 1985).
6 The Republic of South African Constitution Act 110 of 1983.
7 The original preamble to the Promotion of Black Self-Government Act 46 of 1959 pontificated
solemnly that it was desirable ‘for the welfare and progress of the [Black peoples of South Africa] to
afford recognition to the various national units and to provide for their gradual development within
their own areas to self-governing units on the basis of Black systems of government.’
8 The Black Land Act 27 of 1913, and the Development Trust and Land Act 18 of 1936. Both Acts
were repealed in 1991.
9 Most notably, by the infamous ‘section 10’ of the Blacks (Urban Areas) Consolidation Act 25 of
1945 (which was repealed in 1986).
The Modern Law Review [Vol. 60
514 The Modern Law Review Limited 1997
To continue reading
Request your trial