NCJ Number
66065
Journal
University of Pennsylvania Law Review Volume: 128 Issue: 3 Dated: (JANUARY 1980) Pages: 603-621
Date Published
1980
Length
19 pages
Annotation
CRITIQUED BY A SOUTH AFRICAN TRIAL LAWYER, THE COUNTRY'S LEGAL SYSTEM IS FOUND TO CONTRADICT JUDICIAL ETHICS AS WELL AS THE BASIC TENETS OF WESTERN LAW.
Abstract
THE SOUTH AFRICAN LEGAL SYSTEM, FOUNDED ON THE RULES OF EVIDENCE AND PROCEDURE OF ROMAN AND ENGLISH LAW, IS DESCRIBED AS NOW SUFFERING FROM A PROFOUND DISTORTION, AFFECTING THE JUDICIAL PROCESS IN POLITICAL TRIALS. THE AUTHORITARIAN SOUTH AFRICAN REGIME LEGALLY PRESCRIBES CONDUCT (RACIAL DISCRIMINATION) WHICH IS FORBIDDEN BY LAW IN OTHER COUNTRIES (E.G., THE UNITED STATES, ENGLAND, NEW ZEALAND), AND DEFINES AS A LEGAL OFFENSE CONDUCT (INTEGRATION) WHICH IS ELSEWHERE THE LAW OF THE LAND. WITHIN THIS ABSURD CONTEXT, HOWEVER, UNTIL A FEW YEARS AGO, THE RIGHTS OF THE ACCUSED TO DUE PROCESS (EXPECT FOR A JURY TRIAL) WERE APPLIED TO ALL DEFENDANTS, REGARDLESS OF RACE, EVEN IN POLITICAL TRIALS. THIS IS EXEMPLIFIED BY THE TREASON TRIAL, THAT LASTED FROM 1958 TO 1961, IN WHICH THE BLACK DEFENDANTS WERE EVENTUALLY ACQUITTED. IN 1967, HOWEVER, PERCEIVING ITSELF THREATENED WITH SUBVERSION BY THE INCIPIENT RACIAL AND POLITICAL UNREST, THE GOVERNMENT ADOPTED A NEW APPROACH TO THE PROSECUTION OF POLITICAL OFFENDERS. IN ADDITION TO GREATLY EXPANDING THE CONCEPT OF TREASON, THE 1967 TERRORISM ACT INTRODUCED PRESUMPTION OF GUILT AND A SUSPENSION OF ALL RIGHTS OF ACCUSED PERSONS. UNLIMITED, TOTALLY INCOMMUNICADO, DETENTION WITHOUT TRIAL, OF POLITICAL SUSPECTS FOR PURPOSES OF INTERROGATION WAS LEGALIZED. ABUSES OF POLICE AUTHORITY AND MISTREATMENT OF PRISONERS FOR THE PURPOSE OF EXTRACTING CONFESSIONS WERE CONDONED. THE MOST DANGEROUS ASPECT OF THIS TYPE OF LEGISLATION, HOWEVER, IS THE WAY IN WHICH IT ERODES THE CONSCIENCE AND THE PROFESSIONAL INTEGRITY OF THE SOUTH AFRICAN JUDICIARY. JUDGES, CONFINED TO INTERPRETING UNJUST EXISTING LAWS, ARE IN A COMPARABLE POSITION WITH AMERICAN JUDGES ONCE REQUIRED TO ENFORCE THE FUGITIVE SLAVE LAW. POWERLESS TO PROTECT THE DEFENDANTS' LIBERTIES, THEY GRADUALLY LOSE THE WILL TO DO SO, EVEN WHEN IT MIGHT STILL BE POSSIBLE. THEIR ACQUIESCENT AND UNPROTESTING ATTITUDE STRENGTHENS THE PSEUDO-LEGALITY OF THE LEGAL SYSTEM AND HAS A CORRUPTIVE EFFECT ON THOSE WHO GOVERN AND ON SOCIETY AS A WHOLE. ALL MEMBERS OF THE SOUTH AFRICAN JUDICIARY, INCLUDING ATTORNEYS, THUS BECOME TAINTED WITH THE SAME MORAL DISEASE OF SILENT COMPLICITY WITH INJUSTICE. (LGR)