Their common theme is the degrading effect apartheid has on the law, the courts, the legal profession and the officers of the law. The Apartheid Act is not part of the structure of the common law, but is a statute. Therefore, my views on the effects on this image of certain institutions are speculative and not established.
APARTHEID LEGISLATION AND OUR INHERITED
UNDERSTANDING OF THE LAW Jack Unterhalter
The merit of the definition is its reference to both the object of the law and its procedure. What then is the effect of this legislation on our inherited understanding of the law. It is true that different social conditions have led to different understandings of law in different ages.
SOUTH AFRICAN LAWYERS AND THE LIBERAL HERITAGE
OF THE LAW
In the last two centuries natural law has evolved into a philosophy whose primary concern is with the inalienable rights of the individual. Similarly in England the excesses of the Star Chamber gave way to the 'Rule of. It is a responsibility recognized by many of the most prominent and 'respectable' law firms in the United States.
APARTHEID, THE COURTS AND THE LEGAL PROFESSION
Another, extreme expression of apartheid accepted the policy of discrimination as essential to the survival of the white group. Some of the measures taken were primarily in the interest of the Bantu (reservation of Bantu areas; recognition of African law). A further appeal may be made to any division of the Supreme Court, but it is quite clear that the effect of retroactive legislation is a serious curtailment of the inherent discretion of the courts.
The position has now been changed by Section 31 of the Bantu Laws Amendment Act, No. Thus, up to this point in the analysis, one can see that some laws, such as the Population Registration Act, severely limit the powers of the Supreme Court. Apart from commercial matters, the same benevolence on the part of the legislator does not always appear.
Examples of these laws can be found in section 215 (bis) of the Code of Criminal Procedure, no. The Johannesburg Opera and Dramatic Society sought to obtain a license from the copyright owners of three musical plays. In sum, it appears that the Legislature has not really interfered with the jurisdiction of the court in matters in which Africans litigate among themselves.
In other cases where administrative decisions are taken, the court's powers have been drastically curtailed.
DIFFICULTIES FACING BLACK SOUTH AFRICANS IN
RIGHTS
Sufficient freedom of movement to enable him to seek help in appropriate places and to reach persons who are in their power to help him. As will be seen later, the traditional attitude of the white South African and its laws, which enforce a system of segregation or apartheid, create considerable difficulties for blacks who wish to assert their legal rights. It is precisely in limiting the black South African's access to those who can help him that the curtailment of his rights is most clearly manifested.
The black communities are invariably obliged by law to live on the edge of urban centers with the result that, with the exception of their access to the limited number of lawyers who may practice in the black areas, they live much greater distances than the average whites to consult a lawyer. There is a scarcity of black legal practitioners and they are obliged by Group Areas legislation to have their offices in the separate Group Areas which are almost always at a distance from the courts. If this disunity exists in an all-white society, it stands to reason that there must be a much greater disunity among blacks in South Africa, all of whom have had to experience lack of courtesy and discrimination on the part of whites on occasion experienced . g) Because of the economics of legal practice, most lawyers tend to pay more attention to clients who are capable of bringing remunerative work and the black therefore fears that he may not be welcome in the reception office of a substantial law firm .
Not only is the phone service in his apartment complex likely to be worse, but he also has to overcome the fear of possible misunderstanding or even rudeness from the operator at the law office. And after gaining access to a lawyer, however sympathetic and helpful, cultural and linguistic differences often present serious obstacles to achieving that lawyer-client consensus that is so essential to the proper management of any case. While judicial officers usually go to great lengths to ensure that he is given a proper hearing, they face significant challenges in the performance of their duties when dealing with people from very different backgrounds who usually address the court through interpreters.
Furthermore, this type of legislation is burdened by the small administrative arrangements (which are so much part of the apartheid structure) made in the courts and administrative buildings.
THE POLICE IN
THE APARTHEID SOCIETY
The role of the police is mainly seen in its protection of rights, securing of liberties and prevention of crimes. In South Africa, of course, the primary function of the police is also to protect the interests of society. It is in this sphere that the police cannot claim to have the support and sympathy of the vast majority of black South Africans.
Because of the close identity in the minds of blacks between the police and the state, it is appropriate to look briefly at the basis for this identity. Would it be at all surprising if the police were identified in the eyes of the blacks with policies that so clearly contradicted their economic and political interests. This situation, as I have already indicated, helps to undermine the prestige and image of our police force in the eyes of the majority of our population.
According to the latest available police commissioner's report, the total actual occupation of whites and blacks in the police force was 16 776 and 15 333 respectively. The second aspect of the rising crime rate that deserves mention is the incidence of violence in the black townships or ghettos in South Africa. South Africa is, of course, not an ordinary country in the western sense of the word, so it is only natural that the police are also given some 'extraordinary' tasks.
The picture of the role of the police in the political fabric of our country, which is presented in this document, may seem exaggerated on the negative side.
APARTHEID AND
ADMINISTRATIVE BODIES
It is not an exceptional privilege or monopoly subject to the issuance of the permission. These organs are essential to and exist primarily as part of the apartheid machinery. In any normal democracy, one of the most satisfactory means of controlling the exercise of administrative powers by governing bodies is through direct political means.
The main ground on which the court will interfere with the exercise of an administrative power by an administrative body is that the exercise was ultra vires, outside the powers of the body. parliament, results in a substantial degree of partial and unequal treatment between different parts of the community (20). 34; substantial unequal treatment between members of different groups as defined by law.
It is interesting to compare the legislative erosion of the 'separate but equal' doctrine in South Africa with the US Supreme Court's distinction of the doctrine. The issue of the "unreasonable" exercise of administrative powers also arose in the case of Tayob v. Ermelo Local Road Transportation Board (26). The Appellate Division also disagreed with the trial judge's reasoning.
Many cases have been heard in South African courts on the control of the exercise of administrative powers using the principles of natural justice, the doctrine of ultra vires in its broadest sense.
CHANGE AND
B. Molteno
Because he goes on to state the social conditions necessary for the existence of any class of rules, and therefore of the system as a whole. Thus, the rational direction of created things by God, as the Prince of the Universe, has the quality of law. The order of natural law principles corresponds to the order of our natural inclinations.
But the theory today is of course based on practice from the now distant past. It is true that both the state constitutions and that of the United States (in the latter case in the form of the first eight amendments) translated into rights. It is for the Legislature, not the Court, to determine what legislation is required for such purposes.
But the proper exercise of police power has nothing to do with the process of a court but with the legitimate objectives of legislation. In the United States since the natural law of the 18th century publicists had become classic, we have relied largely on an American variant of natural law. The Fourteenth Amendment, however, goes further and prohibits states from denying 'equal protection of the laws'.
It is absolutely obvious that a great many of the laws in our statute book today radically violate these principles.
BRIEF BIBLIOGRAPHY
