It is tempting, when speaking to nostalgic racists who imagine an idyllic past that never actually existed, to point out only the obvious and profound differences between apartheid South Africa and post-apartheid South Africa.
Equally, when speaking to the more sycophantic supporters of the ANC, it is tempting to demonstrate some of the continuities between the apartheid state and our democratic state — a liberal constitutional state, which even some progressive academics and analysts characterise as neocolonial when cataloguing some of its brutalities.
We are neither a replica of the apartheid state nor are we as disconnected from aspects of it as we deserve to be in the 21st century. This complexity struck me as I took to making my way through Lawfare: Judging Politics in South Africa, co-authored by advocate Michelle le Roux and Judge Dennis Davis.
In the first half of this excellent text they drag us, quite usefully, back into the apartheid archives. As progressive lawyers, they rightly do not make any glib comparisons between apartheid and post-apartheid South Africa. The differences are too obvious and too enormous to justify any such analogical reasoning.
Yet the history of the then appellate division in Bloemfontein, in the 1950s and the 1960s, is instructive. Although South Africa was not a liberal democracy with the principle of constitutional supremacy entrenched, there was, in the first half of the 20th century, a more than half-decent appreciation for libertarian values, such as respecting and maximising individual freedom.
This was an important part of the jurisprudential foundation of our common law, and many a talented lawyer could fight for natural justice by locating argument in the legal tradition that had been formed in South Africa over a long period of time.
The racist apartheid state, however, quickly dealt with the courts. When the government insisted on passing dubious legislation, allowing Parliament to review any decision from Bloemfontein that set aside a law of Parliament — such as the disenfranchisement of coloured voters — the state simply eroded the rule of law systematically by ensuring that mostly politically pliable appointments were made to the Bench.
The National Party government had no intention of respecting the independence of the judiciary. It waged political warfare against the black majority everywhere, including in the courts.
The putative justification the Nats gave for their profound irritation with the judiciary is that, in their view, the judiciary was often subverting the will of the people — notwithstanding the people referred to here were only white people. It also accused the courts of judicial overreach. The principle of legality had no place in a society in which the government of the day preferred arbitrary and capricious exercises of political power in service of pernicious ends. The rule of law, put bluntly, was trampled on routinely by the apartheid state.
Again, the legal differences between then and now are big. We now live in a South Africa in which the exercise of state power is required to be justified. We have substituted parliamentary sovereignty for constitutional supremacy. We have parted ways with the norm of opacity and designed a constitutional order than insists instead on a commitment to transparency. There is a presumption in favour of freedom, and a presumption against the limiting of our freedoms.
But Le Roux and Davis are right to insist that we should not be complacent. Talk of “judicial overreach” has too often hastily entered the lexicon of our democratically elected politicians, a knee-jerk reaction to any judgment they do not like — even when they are unable to explain what was not cogent in the legal reasoning of the court.
The intersection of law and politics is enormously complex. If we reflect on the full horror of state capture, for example, it is ultimately a story of impunity, a story of the casual disdain for the laws of the land. It is the story of the rule of law being trampled on — as happened in the past.
The key difference between then and now is that the apartheid government’s disregard for the rule of law was embedded in a nakedly evil and racist political edifice, whereas the sins of our (anti-)democratic actors are more shrewdly ensconced in a democratic edifice that comes with intuitive legitimacy. This is why we could not see the state capture project for what it truly was — until now.
In this context it is a mistake to romanticise excellent jurisprudence. Just as the common law in the first part of the last century was often a friend of victims (a lesson which we also learn in advocate Tembeka Ngcukaitobi’s brilliant book The Land Is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism) so too, on paper, the constitutional model we ushered in in the 1990s is a friend of the poor.
But law cannot ever be studied as a self-standing discipline. Law is inherently interdisciplinary because it carries with it the story of society at large. Until the state is more aligned with the values of our Constitution, we will remain a deeply unjust society.
Which brings me to a central point worth underscoring as we all battle news fatigue in relation to the various commissions of inquiry telling us the story of how our democratic institutions have been hollowed out by crooks, many of whom we elected democratically.
We must grapple with the meaning of the rule of law practically, plainly and publicly. Until we animate this legal concept properly, we will never ever come close to being anything other than an unfinished story. The rule of law simply isn’t, in reality, as popular in our society as rugby, soccer, braais and dissing Kurt Darren.
The rule of law means many things: no one is above the law and therefore everyone is equal before the law. It also means respecting the authority of the legal system, respect which is demonstrated when you follow the laws of the land, and you do so not out of fear but out of respect for the moral principles from which specific laws are derived.
The rule of law also means that we have a judicial system that is functioning effectively, meaning both that justice is done and is seen to be done.
But how many corrupt South Africans, to now test these normative ideas, have been jailed? How many politicians and businesspeople are struggling to sleep at night because they know that our specialist economic crime-busting agencies are close to arresting them?
The only meaningful measure of whether the rule of law is truly respected is the level of compliance with the law in society and the successful prosecution of those who do not comply.
The apartheid state used its monopoly on force primarily to subjugate and oppress black people. But force isn’t just the physical force used by overzealous police officers or secret agents with firepower. Force, less observable but no less real, also exists in the judicial system.
Oppression, and a lack of justice, can be perpetuated through a meek judiciary or one whose authority isn’t respected sufficiently. More generally it can be done through a weak value chain of justice, starting with law enforcement agencies, that is not fit for purpose.
Although we are justifiably proud of the differences between South Africa in 2019 and South Africa under apartheid, it is equally important that we learn lessons from our painful past, despite our psychological need to focus on how much has genuinely changed for the better.
The National Party didn’t respect the rule of law. The rule of law isn’t fully respected today. We need to be vigilant, and work at it. Respect for the rule of law doesn’t happen by fiat.