AND THE RULE OF LAW INTERNATIONAL COMMISSION OF JURISTS EDITED BY GEOFFREY BINDMAN South Africa: Human Rights and the Rule of Law International Commission of Jurists Edited by Geoffrey Bindman Intemati on al Co mm i s si on of Jurists (iCJ) Geneva, Switzerland "jOU Pinter Publishers, London and New York © International Commission of Jurists, 1988 First published in Great Britain in 1988 by Pinter Publishers Limited 25 Floral Street, London WC2E 9DS All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted by any other means without the prior written permission of the copyright holder. Please direct all enquiries to the publishers. British Library Cataloguing in Publication Data A CIP catalogue record for this book is available from the British Library ISBN 0-86187-919-8 Library of Congress Cataloging-in-Publication Data CIP available from the Library of Congress ISBN 0-86187-919-8 Typeset by Florencetype Ltd, Kewstoke, Avon Printed in Great Britain by Biddles, Guildford Contents 1 Preface 1 2 General Introduction 4 3 Legal Structures of Apartheid 11 4 Freedom of Movement and Forced Removals 15 5 Education and Access to the Professions 43 6 Freedom of Speech and Expression 47 7 Freedom of Association 53 8 Freedom of Assembly 60 9 Trade Unions 63 10 The Right to Personal Freedom 66 11 The State of Emergency 88 12 Children 101 13 The Administration of Justice and the Judicial System 109 14 The Security System 119 15 Political Institutions 128 16 The Homelands 130 17 Future Developments 141 18 Conclusions 144 Index 152 1 Preface With increasing reports of the tensions and repression of blacks in South Africa, the International Commission of Jurists decided to send a mission to South Africa. Their terms of reference were to examine the degree of compliance in South Africa with international human rights law as embodied in the Universal Declaration of Human Rights and other relevant instruments. The particular subjects they considered were trade union rights, the repeal of the pass laws and other discriminatory legislation, the independence of judges and lawyers, the security system, the treatment of children under the legal system, the state of education, freedom of speech and political activity, legal services in rural areas, and human rights in the homelands. In accordance with its normal practice, the International Commission of Jurists informed the South African government at the beginning of July of its intention to send a mission in September, and of the subjects to be studied and the places to be visited. The Commission asked if the mission could have meetings with government ministers and senior officials at the end of its visit. Shortly before this a state of emergency had been declared in South Africa, covering the whole country. The South African ambassador to the United Nations in Geneva thought it likely that the government would ask that the mission be postponed in view of the state of emergency, and this proved to be the case. Accordingly, it was decided to postpone the mission until the beginning of 1987. By that time it became clear that the emergency was likely to be prolonged, so a decision was taken to send the mission to South Africa and to wait until the later stages of its visit before seeking appointments with ministers and other representatives of the South African government. The mission was composed of four lawyers, each having expertise on the apartheid system. They were Geoffrey Bindman, a solicitor practising in London; Jean-Marie Crettaz, a member of the Council of the Geneva Bar; Henry Downing, an Irish barrister; and Guenter Witzsch, Professor of Public Law in the University of Munster, in the Federal Republic of Germany. The mission went to South Africa for a period of three weeks in February 1987. A programme of meetings and visits was arranged. The team began with a series of meetings in Johannesburg and then divided into two pairs. One travelled to Bophuthatswana and then to Port Elizabeth and Ciskei. The other to Durban and Cape Town, where they were later joined by the other pair. The whole team then went to Bloemfontein and spent a final few days in Pretoria and Johannesburg. They met a wide range of practising and 2 PREFACE academic lawyers, judges, community workers, political and trade union leaders, human rights activists and ordinary residents of townships. At the end of their stay they met government officials and the Deputy Minister of Law and Order. The team had secretarial assistance throughout which enabled them to record and transcribe virtually all their interviews. They obtained copies of many affidavits, court documents, reports and publications relevant to their enquiry. A preliminary report of this mission, written by Geoffrey Bindman, was published in the International Commision o f Jurists’ Review, No. 38, in June 1987. The participants in the mission felt, however, that they could only do justice to the vast information and documentation they received by making a comprehensive review of the present state of apartheid, including the historical background to the legislation and practice where this is needed, to enable the reader to understand more fully the present critical stage in the evolution of the apartheid system. The International Commission of Jurists joins with the members of the mission in expressing their deep gratitude to all those who devoted so much time and effort to help the mission in its task. The International Commission of Jurists is also deeply grateful to the members of the mission, in particular to Geoffrey Bindman for editing this report as well as being its principal author, and to the Swedish International Development Authority and the Ford Foundation for their grants which made the mission possible. Geneva, December 1987 Niall MacDermot Secretary-General International Commission of Jurists EDITORIAL NOTE 3 Editorial note The members of the mission were able to travel freely in Southern Africa but many of those who talked to us clearly did so at some personal risk. For this reason the identity of many informants cannot be disclosed. Since our visit in February 1987 we have been able to maintain contact with some of them and have continued to receive much information from published and other sources. The report therefore takes into account developments up to the end of February 1988. Geoffrey Bindman London, March 1988 Jean-Marie Crettaz Henry Downing Guenter Witzsch 2 General Introduction1 The country and its people The Republic of South Africa covers an area of over five times the size of the United Kingdom. The country is divided into four provinces, the Transvaal, the Orange Free State, Natal and the Cape Province. In addition, the South African government has established ‘self-governing’ African ‘homelands’ and has granted ‘independence’ to four so called ‘homelands’: Transkei, Bophuthatswana, Venda and Ciskei. This independent status has not been recognized by the international community,2 and indeed has been con­ demned by resolutions of the United Nations.3 The estimated population of South Africa in 1985 was over 29,000,000. This figure is made up of 21,197,253 classified as Africans, 4,590,639 whites, 2,853,964 coloured and 801,758 Asians. Precisely 5,954,425 people live in the four so-called independent homelands. The black African people make up 72 per cent of the total population of South Africa, whereas the white population represent 15.6 per cent of the total.4 Different birth rates for the whites and Africans will lead to a steadily increasing black majority. Every South African is classified at birth as belonging to a particular racial group. By virtue of the Population Registration Act 1950,5 a register of the entire population is kept in which each person is classified as belonging to a particular racial group: white, coloured, Indian (Asian) or African. The term ‘coloured’ refers to people regarded as of mixed racial descent. A person’s social, political, civil and economic rights are determined by the race or ethnic group to which he is deemed to belong, and, therefore, this Act provides the basis for separate and unfavourable treatment under other legislation and is at the root of the apartheid system. English and Afrikaans are the two official languages of South Africa. In addition, there are a large number of African languages. Most South Africans are members of the Christian faith, but there are also a small number of Jews, Moslems and Hindus. The majority of whites belong to the Dutch Reformed Church. Historical background In 1652 the Cape was occupied by the Dutch East India Company for the purpose of establishing a resting point for its ships. In 1795 the British occupied the Cape to protect its sea route to India, but in 1803 it was returned to the Netherlands. In 1806 the Cape was recolonized by Britain and the Cape GENERAL INTRODUCTION 5 became a British Colony. In 1843 Natal was taken over by Britain. The Dutch settlers moved into the interior and established the Orange Free State and—in the territory which is now the Transvaal—the South African Republic. The British fought the Dutch settlers in the Anglo-Boer War of 1899-1902. In 1910 the four colonies joined together to form the Union of South Africa, which then became a self-governing dominion. The Union of South Africa of 1910 attempted to consolidate white power by bringing together the Boer republics and the British colonies. Unity of the white settlers was essential for the economic exploitation of the mineral wealth of the country. In 1931 South Africa became an independent state within the British Commonwealth of nations, and in 1961 the South African Parliament converted the state into a Republic.6 In 1948, the National Party came to power on the platform of apartheid and has retained power ever since.