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Mungo Soggot
THE appeal court judge who called on Ismail Mahomed this week to withdraw from the race for the position of chief justice was a champion of apartheid Emergency legislation during the late 1980s.
Described as a “vigorous and ingenious defender of Emergency authority”, Judge Joos Hefer sat on a string of Emergency legislation appeals which backed Pretoria.
Hefer this week notched up another controversial chapter in his career when he said in Beeld that Mahomed should do the honourable thing and pull out of the race — because of his inexperience on the bench, because all permanent members of the appeal court backed Judge Hennie van Heerden and because of President Nelson Mandela’s controversial intervention in the selection process.
Hefer described the call by the National Association of Democratic lawyers (Nadel) for Van Heerden to withdraw as “ridiculous and nonsense. If there is still any honour left in this game the other man should withdraw …”
Hefer featured in a 1988 article entitled The War Against Law, which appeared in the South African Journal of Human Rights. Before detailing Hefer’s contribution to this war, Professor Fink Haysom — who is now President Nelson Mandela’s legal adviser – — and Clive Plasket wrote: “One might recall that it was Hefer, while chief justice of the Transkei, who attempted to construe the power to detain in such extreme and generous terms that they were held to be out of line even with South African decisions. In this article we argue that Hefer’s recent contribution to our administrative law jurisprudence has been that of an activist judge.”
Among Hefer’s more celebrated findings during the “Emergency cases” was that detention without trial could be valid even if less drastic alternatives could serve the same purpose. The judge also amended the long-established principle that where there is an arrest, the onus of proving the validity of that arrest must be discharged by the arrestor. And in Castel NO v Metal and Allied Workers Union, Hefer decided that an application in terms of the 1982 Internal Security Act to organise an outside gathering could be refused without giving the applicant a right to a hearing.
Between 1986 and 1988 the Appellate Division heard 12 cases dealing with the Emergency laws — legislation that was effectively insulated from scrutiny by the courts and the press — which granted massive powers to the security forces to maintain “law and order”.
Haysom and Plasket say Hefer was picked to hear more of these cases — nine — than any other appeal judge during Pierre Rabie’s reign as acting chief justice. (After Chief Justice Rabie reached the mandatory retirement age of 70, the government took the controversial step of making him acting chief justice for a further five years.)
Rabie himself was an architect of the infamous security legislation and, the authors note, “must … bear some responsibility for the composition of the courts which hear security-related matters”.
Haysom and Plasket were not impressed with the legal reasoning and “selective use of authorities” Hefer employed to arrive at his decisions. They say a reader of Hefer’s judgment in United Democratic Front v State President — where the majority of the appeal judges refused to invalidate vague Emergency regulations — “will, no doubt, be struck by the extensive quotations from Professor Wade and the leading case of Short v Poole. These sources are most eloquent expositions of administrative principles and do much to argue against the propositions and conclusions found in the judgment; the contrast between the English authorities and the new brand of South African jurisprudence, as disclosed by Hefer’s judgment, highlights the sorry state of this branch of the law in this country.”
Judge Gerald Friedman, currently judge president of the Cape, made quite clear his unhappiness at making a decision in which he was bound by the precedent set by Hefer in the UDF case. When he was asked in the case of Natal Indian Congress v State President to shoot down Emergency regulations because of their unreasonableness he said he could not because of the all-embracing UDF decision.
Stephen Ellman, a US legal academic who wrote a book in 1992 on the role of the courts during the Emergency era and who described Hefer as a “vigorous and ingenious defender of Emergency legislation”, said of these cases: “Most of them are decided against human rights claims, and they reflect the court’s intense fear of revolutionary onslaught, and its trust [in] and sympathy for those dealing with it.”
Ellman coined the phrase “the Emergency team” when explaining the phenomenon of how the same appeal judges popped up in those 12 Emergency cases. He said that in each of these cases at least three of the five judges were from the Emergency team — of which Hefer was a leading light — and that the members of the team never disagreed with each other on these cases. Another member of the “team” who is still with the Appellate Division is Judge Vivier. Judge EM Grosskopf, who sat on four Emergency cases, is also still serving the appeal court. Another contraversial judge still sitting in Bloemfontein is Louis Harms, who headed the unsatisfactory commission of inquiry into security force hit squads in 1990.
Hefer’s decisions before becoming an appeal court judge included taking the unusual step of sentencing an ANC activist to death for high treason. During the trial the accused — charged with planning a bombing campaign — sang loudly to frustrate the proceedings. In his judgment, Hefer complained of “provocative and contemptuous” conduct. The appeal court overturned his decision to impose the death sentence.