There are few things that annoy government officials and politicians more than suggestions that their behaviour is somehow reminiscent of “the apartheid era”.
It is a charge wielded, often rather casually, by critics on the right and the left of the ANC, by the Democratic Alliance in Parliament and by the burgeoning social movements that are organising the poor both in the streets and, increasingly, the courts.
The irritation is understandable. Whatever else you think of the governing party, its project — or the various projects competing within it — can’t seriously be described by analogy to the grotesqueries of apartheid.
Yet the comparison lies readily to hand because it is able to borrow rhetorical force from our history. The ANC understands that as well as the landless activists of Abahlali baseMjondlo, which is why it uses the same language against people, such as Helen Zille, who seem to threaten its hegemony.
It is a crude way of speaking, and an unhelpful one, but it is fairly easy to understand why it prevails: we don’t yet have a fully developed language in which to discuss what the great German theorist Walter Benjamin called the “law-giving violence” of the state, and to argue how the exercise of that violence should be both limited and given positive expression.
Apartheid, which worked through a sovereign parliament and largely compliant courts to create legal rationale for its jackbooted assault on justice, looms so large in our imaginations that we struggle to find other ways to understand how the state makes use of the force of law and to express how, legitimately, it may be contested.
The great value of Precedent and Possibility: The (Ab)use of Law in South Africa (Double Storey) is that its authors, Judge Dennis Davis and advocate Michelle le Roux, are able, in fairly accessible language, to set out ways in which a more sophisticated understanding of both apartheid and democratic legal history can illuminate the present and shape what is an increasingly urgent debate about the future of our constitutional architecture.
That lengthy preamble is necessary because some of the most important members of the audience for the book may respond defensively to its powerful opening chapter, which plays back the constitutional crisis of the 1950s — an episode too much forgotten outside legal circles — and amplifies its extraordinary resonance with the battle for the future of our courts.
“History has a curious way of repeating itself,” Davis and Le Roux begin. “A legal crisis occurred more than half a century ago, and there is a current concern that a similar chain of events could happen again.” That’s just the sort of statement likely to annoy members of the ANC’s parliamentary study group on justice and constitutional development. They should read on.
What follows is a sketch of the battle for precedence between a then New National Party government, the parliament which that government used to draw a negligee of democratic legitimacy over its crimes and what were still, as the authors point out, essentially libertarian, or “liberal legalist” courts that believed in protecting classically conceived liberties of citizens against the intrusion of state power.
At issue was an attempt by the Nats to remove coloured voters in the Cape Province, then controlled by the opposition United Party, from the common voters’ roll — a position they were guaranteed under the then constitution.
The United Party, through proxy coloured voters, challenged the constitutionality of the Separation of Representation of Voters Act, leading prime minister DF Malan to declare that if the court struck down the law “it would mean that judicial authorities would assume powers belonging exclusively to the legislature”.
That didn’t stop a series of judgments from setting aside the Act and other legislation designed to ram it through, until the government packed the Supreme Court of Appeal (SCA) with executive-minded cronies, at which point even the former liberals sensed they could not swim against the political tide and let the law through, perhaps hoping to fight another day.
If there are echoes of this contest in the post-democratic cases examined here, notably the decision by the Constitutional Court to compel the government to make available Nevirapine to HIV-positive pregnant mothers and Alix Carmichael’s long struggle to win adequate compensation for the state’s failure to protect her from assault and rape by a man already standing trial for other crimes, that is not because the intentions of the democratic government are the same as those of the Nationalists.
And if in the packing of the SCA with judges sympathetic to the apartheid project we may hear a warning against abuse of “transformation” rhetoric to call for the appointment of more executive-minded judges whose suitability is otherwise questionable, that is not because an ANC government plans to repeat apartheid-style injustices, or to justify legislation designed to tighten government control of the courts.
It is because the inevitable displacement of political contest into the juridical arena — what anthropologists John and Jean Comaroff call “lawfare” — demands of us that we understand the crucial importance of public legitimacy for our courts and the role of constitutional values in building that.
It is not narrow constitutional absolutism that Davis and Le Roux propose, but a dynamic interplay between the government, Parliament, the courts and the citizenry that builds a bridge to the future on the complicated substrata of the past. Read them for that debate, as Davis’s boss, Cape Judge President John Hlophe, takes lawfare to destructive new heights and as Jacob Zuma contemplates whom to appoint chief justice.
Read them too, for the drama of the law, an arena of high stakes and big personalities. If, at times, the authors are ill served by editors who are more used to textbooks than popularising, skip the denser legal bits to the stories that are the spine of the argument.
I can’t think of a more important book to read right now.