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Literature and the Law in South Africa, 1910–2010 the Fairleigh Dickinson University Press Series in Law, Culture, and the Humanities Literature and the Law in South Africa, 1910–2010 The Fairleigh Dickinson University Press Series in Law, Culture, and the Humanities Series Editor: Caroline Joan “Kay” S. Picart, M.Phil. (Cantab), Ph.D., J.D., Esquire Attorney at Law; Adjunct Professor, FAMU College of Law; former English & HUM professor, FSU The Fairleigh Dickinson University Press Series in Law, Culture, and the Humanities publishes scholarly works in which the field of Law intersects with, among others, Film, Criminology, Sociology, Communication, Critical/Cultural Studies, Literature, History, Philosophy, and the Humanities. On the Web at http://www.fdu.edu/fdupress Publications Ted Laros, Literature and the Law in South Africa, 1910-2010: The Long Walk to Artistic Freedom (2017) Peter Robson and Johnny Rodger, The Spaces of Justice: The Architecture of the Scottish Court (2017) Doran Larson, Witness in the Era of Mass Incarceration: Discovering the Ethical Prison (2017) Raymond J. McKoski, Judges in Street Clothes: Acting Ethically Off-the-Bench (2017) H. Lowell Brown, The American Constitutional Tradition: Colonial Charters, Covenants, and Revolutionary State Constitutions 1578–1786 (2017) Arua Oko Omaka, The Biafran Humanitarian Crisis, 1967-1970: International Human Rights and Joint Church Aid (2016) Marouf A. Hasian, Jr., Representing Ebola: Culture, Law, and Public Discourse about the 2013–2015 West Africa Ebola Outbreak (2016) Jacqueline O’Connor, Law and Sexuality in Tennessee Williams’s America (2016) Caroline Joan “Kay” S. Picart, Michael Hviid Jacobsen, and Cecil E. Greek, Framing Law and Crime: An Interdisciplinary Anthology (2016) Caroline Joan “Kay” S. Picart, Law In and As Culture: Intellectual Property, Minority Rights, and the Rights of Indigenous Peoples (2016) Literature and the Law in South Africa, 1910–2010 The Long Walk to Artistic Freedom Ted Laros FAIRLEIGH DICKINSON UNIVERSITY PRESS Vancouver • Madison • Teaneck • Wroxton Published by Fairleigh Dickinson University Press Copublished by The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.rowman.com Unit A, Whitacre Mews, 26-34 Stannary Street, London SE11 4AB Copyright © 2018 by Ted Laros All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. Fairleigh Dickinson University Press gratefully acknowledges the support received for scholarly publishing from the Friends of FDU Press. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Names: Laros, Ted, 1978– author. Title: Literature and the law in South Africa, 1910-2010 : the long walk to artistic freedom / Ted Laros. Description: Madison : Fairleigh Dickinson University Press ; Lanham, Maryland : The Rowman & Littlefield Publishing Group, Inc., 2018. | Series: Series in law, culture, and the humanities | Based on author’s thesis (doctoral - Carl von Ossietzky University of Oldenburg, 2013) issued under title: Long walk to artistic freedom : law and the literary field in South Africa, 1910–2010. | Includes bibliographical references and index. Identifiers: LCCN 2017036974 (print) | LCCN 2017038299 (ebook) | ISBN 9781683930167 (elec- tronic) | ISBN 9781683930150 (cloth : alk. paper) Subjects: LCSH: Censorship—South Africa—History—20th century. | Obscenity (Law)—South Af- rica—History—20th century. | Sedition—Law and legislation—South Africa—History—20th century. | South African literature—Censorship—History—20th century. Classification: LCC KTL3483 (ebook) | LCC KTL3483 .L37 2018 (print) | DDC 344.68/097—dc23 LC record available at https://lccn.loc.gov/2017036974 TM The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. Printed in the United States of America Contents Acknowledgments vii Abbreviations ix Introduction: Literature in Law 1 Part I: Legal Groundwork, 1910–1955 21 1 Preparing the Ground for Autonomization 23 Part II: Hesitant Legal Recognition, 1955–1975 47 2 The 1965 Trials: Wilbur Smith’s When the Lion Feeds and Can Themba’s “The Fugitives” 49 3 The 1974 Trial of André Brink’s Kennis van die Aand 85 Part III: Despite Rollback Efforts, Ongoing Recognition, 1975–1980 125 4 The 1978 Case of Etienne Leroux’s Magersfontein, O Magersfontein! 127 Part IV: Decisive Legal Recognition, 1980–2010 163 5 (The Road to) Constitutional Autonomy 165 Conclusion: Long Walk to Artistic Freedom 193 Bibliography 203 Index 217 About the Author 231 v Acknowledgments This book is a revised and extended version of my PhD thesis, which was written between October 2010 and December 2013 at the Institute of Dutch Studies of the Carl von Ossietzky University of Oldenburg (Ger.) and ap- proved by its School of Linguistics and Cultural Studies in early 2014. Earlier versions of chapters 2, 4, and 7 have already appeared elsewhere: chapter 2 as “Preparing the Ground for Artistic Freedom: Judicial Censorship of Publications in Pre-Apartheid South Africa, 1890–1948” in Journal of Dutch Literature 5.2 (2014), pp. 35–61; chapter 4 as “Literary Autonomy on Trial: The 1974 Cape Trial of André Brink’s Kennis van die Aand” in The Courtroom as a Space of Resistance: Reflections on the Legacy of the Rivo- nia Trial, edited by Awol Allo, Surrey: Ashgate, 2015, pp. 283–303; chapter 7 as “Law and the Literary Field in South Africa, 1910–2010” in Literary Trials: Exceptio Artis and Theories of Literature in Court, edited by Ralf Grüttemeier, New York: Bloomsbury Academic, pp. 69–87. I kindly thank Journal of Dutch Literature, Taylor and Francis Group, and Bloomsbury for giving me permission to reuse my material. I would also like to thank a number of institutions for their financial support: The Deutsche Forschungsgemeinschaft (German Research Founda- tion) for providing such generous funding for this project, the Carl von Ossietzky University of Oldenburg, Radboud University of Nijmegen (Neth.), and Open University of the Netherlands for financing additional stays abroad for research purposes. While working on this project, I greatly benefited from the comments and other kinds of collegial support that I received from my colleagues at Olden- burg University’s Institute of Dutch Studies and its School of Linguistics and Cultural Studies. Therefore, many thanks goes out to all these former col- vii viii Acknowledgments leagues. Special thanks goes out to Prof. Sabine Doering, Prof. Anton Kirch- hofer, and my supervisor Prof. Ralf Grüttemeier. I also benefited greatly from feedback I received from a number of people outside of Oldenburg University. I want to thank the organizers and sharp audiences of a number of conferences in Belgium, Germany, the Nether- lands, Poland, South Africa, and the United States where I presented results from my research. I especially want to thank Prof. Martin A. Kayman (Car- diff), Prof. Peter D. McDonald (Oxford), Prof. Greta Olson (Giessen), and the anonymous reviewers who commented on an earlier version of (parts of) this book. While doing research in South Africa, I was supported very kindly at Stellenbosch University, Stellenbosch University Library, the Western Cape Archives and Records Service, and the National Library of South Africa, Cape Town Campus. Many thanks to all the people who helped me at these institutions, and especially to Dr. Ewa Dynarowicz, Prof. Siegfried Huigen, and Prof. Andries Visagie: their warm hospitality made all the difference to my stays. I want to thank everyone at Fairleigh Dickinson University Press for believing in this project and for handling the publishing process so carefully. Special thanks goes out to Megan DeLancey, Harry Keyishian, Zach Nycum, and Dr. Caroline Picart. Also, I want to thank Josie Dixon for her advice regarding inter alia the title of the book, and Dr. Katherine Bird for correct- ing my English so thoroughly. Writing a book is obviously a time- and energy-consuming activity. In writing this book, I was lucky enough to enjoy the constant support of my parents and parents-in-law, and especially that of my wife Gieske and daugh- ters Lotje, Noor, Fiene, and Aafke. Since I learned a little Afrikaans along the way, I want to say to them: baie dankie my skatties, ek is lief vir julle! Abbreviations AD Appellate Division of the Supreme Court of South Africa CPD Cape Provincial Division of the Supreme Court of South Africa DOP Directorate of Publications FPA Films and Publications Act, 1996 FPB Film and Publication Board FPRB Film and Publication Review Board NGK Nederduitse Gereformeerde Kerk (Dutch Reformed Church) NP Nasionale Party (National Party) PA Publications Act, 1974 PAB Publications Appeal Board PCB Publications Control Board PEA Publications and Entertainments Act, 1963 TPD Transvaal Provincial Division of the Supreme Court of South Africa ix Introduction Literature in Law In 1994, artistic freedom pertaining inter alia to literature was enshrined in the South African Constitution. Clearly, the establishment of this right was long overdue compared to other nations within the Commonwealth. Indeed, the legal framework and practices regarding the regulation of literature that were introduced following the nation’s transition to a nonracial democracy seemed to form a decisive turning point in the history
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