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White Man's Justice: South African Political Trials in the Black Consciousness Era.

In 1984 the South African Law Journal published a University of Natal inaugural lecture in which Professor Raymond Wacks urged that right-minded judges should resign because to continue in the circumstances in South Africa was incompatible with the judicial role. In the same number of the SALJ a noted opponent of the apartheid regime, Professor John Dugard of the University of Witwatersrand, argued the case for judges to remain in office and do what could be done to ameliorate the effects of the manifestly unjust system. At the time these articles were published most liberal minded white South African lawyers would have associated themselves with Professor Dugard. Would this judgment be the same with the benefit of hindsight?

The book under review is concerned with the important but neglected question of what went on at the trial court level in cases concerned with black consciousness. The conclusions on this must necessarily go into the equation in any overall assessment of the part played by the judiciary in the official systematic oppression of black South Africans for most of the second-half of the 20th century. South African appellate judges have come out of various critical studies relatively well but appeal courts adjudicate in the abstract on the findings of trial courts and, of course, only do so in a relatively small proportion of cases.

The resolve of the South African state to defend its untenable position took different forms as the struggle against it built up at home and abroad. The way trial courts did their work became a major factor in the 1970s because the state used the courts to give effect to laws which were aimed to suppress the growing threat of the freedom movement; a cynical secondary motive being to promote the notion that the rule of law prevailed. Opposition to Afrikaans as a medium of instruction in black schools led to the watershed Soweto riots of 1976 which put the lie to any idea of extremist dissent rather than a mass liberation movement. The particular significance of the period and its place in the evolution of the struggle against the unjust regime is explained in careful and convincing detail in White Man's Justice. The book's audit of the performance of trial courts in the circumstances before and after Soweto is a significant original contribution to the knowledge and understanding of a crucial period in South African history.

A potential difficulty in making an assessment of the performance of trial courts is that many cases do not appear in the published law reports which are generally limited to what is significant to legal development. The author goes beyond the law reports and looks at transcripts of proceedings and associated papers held by the Department of History of the University of Witwatersrand. (The bibliography lists trial papers in respect of some thirty cases; reported cases are also referred to in the text and footnotes but are not listed.) The conclusions in respect of particular cases are based on a painstaking presentation and examination of the material. The assessment is thorough and impartial. Not surprisingly some judges come out of the process of scrutiny better than others. Enough fail to meet the author's fair and reasonable notion of the standards appropriate to a proper administration of justice to justify the conclusion that all was not what it should have been at the trial court level. Even if the sample used by the author is not seen to be representative of the overall position the work shows failings in enough cases to justify the conclusion of the book that the administration of justice was deficient.

At the more generalised level the book confirms what lawyers already accept, that judges showed considerable variation in their readiness to invoke justice in a system in which the constitutional function of the judiciary was to give effect to the sovereign will of the legislature. Thus, some legal readers may see this book as showing no more than judicial failings in a context in which judges had very little alternative but, in the words of the author's conclusions, to 'expound the illiberal ambitions of the legislature. The unqualified statement that they proved themselves eager' to do so can, of course, only be taken to apply to the particular cases in which rather extreme failings are demonstrated.

This book is a very valuable addition to the serious literature on a critical aspect of recent South African history. It applies high academic standards in an evaluation of a particular aspect of the performance of the judiciary. That it is debatable what weight this has in an overall judgment about South African judges does not in the least detract from the value of the work.
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Author:Miller, D.L. Carey
Publication:African Affairs
Article Type:Book Review
Date:Jul 1, 1997
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