Law and Justice: Reviewing Positive Law in Post-Apartheid South Africa

By Svicevic, Marko | Africa Policy Journal, January 1, 2015 | Go to article overview

Law and Justice: Reviewing Positive Law in Post-Apartheid South Africa


Svicevic, Marko, Africa Policy Journal


Introduction: Defining Natural Law and Positive Law

Positive law places an emphasis on the sources of the law, rather than its substance and "merits."1 Positive law reinforces a restricted legal culture and continuously endeavors to rid the law of ethical considerations, thus excluding morality from the legal domain.2 Legal positivism concerns itself not with whether laws are "good" or "just," but rather if a legitimate authority has enacted them.

Contrary to positive law and its narrow-minded restrictiveness is natural law. Natural law reinforces a more critical approach to legal interpretation by the judges and seeks to critically analyze the substance of the law to determine its purpose and relevance in a given society at a given time. Natural law, by its very essence in constructing and interpreting just laws, owes its validity to the ways in which racial disparities, gender inequities, historical contexts, and societal biases shape the way in which the laws ought to be interpreted.3

The Apartheid Regime: Influence of Positive Law in South Africa

Apartheid South Africa's strict adherence to positive law resulted in some of the worst human rights violations in the country's history. Apartheid was a period of racial segregation from 1948 to 1994 for which the main objective was to allow for and maintain white minority rule while prejudicing nonwhites. During this period, South Africa was governed under a system of parliamentary sovereignty. In contrast to a system of separation of powers, South Africa's parliament reigned supreme over its judiciary and executive branches, and all written legislation. In this system, positive law enjoyed tremendous appreciation, the advantage resting with parliament's legitimacy to enact, rather than the content of its enactments. In this respect, the laws were respected because they originated from a legitimate source and no regard was given to their lack of merit as racially discriminatory.

The Truth and Reconciliation Commission (TRC), a body established after the fall of Apartheid, deals with the administration of restorative justice. The TRC documented firsthand accounts of human rights violations committed during the Apartheid regime, with many such violations linked directly to parliament-promulgated legislation. As dictated by positive law, parliamentary sovereignty allowed for legislation to be drafted and promulgated regardless of its justness or fairness (or lack thereof).

Examples of this legislation include the Suppression of Communism Act, passed in 1950, which banned the South African Communist Party.4 The General Law Amendment Act of May 1963 allows a police officer to detain, without a warrant, any person suspected of a political crime for a ninety-day period.5 Combined with a legal principle called the Sobukwe clause, any person detained for a political crime can be detained for a further twelve months.6 The act also gives the president the power to declare certain organizations, such as the African National Congress (ANC)'s Umkhonto we Sizwe, unlawful.7

Upon the commencement of the Unlawful Organisations Act, passed in 1960, both the ANC and the Pan-African Congress were declared unlawful for their opposition toward the Apartheid government.8 The act was ratified just over a year after the Sharpeville Massacre. The Indemnity Act, passed in 1961, was subsequently enacted to protect the Apartheid government from any legal action for, among others, the Sharpeville Massacre.9 This act prevented courts from hearing any civil or criminal case against the state for actions taken from March 1960 to July 1961.10 Today, the repressions of people's political rights are entrenched in South Africa's constitution, with provisions protecting individuals' rights to political affiliation.11

Positive Law: Shortcomings in Post-1994 South Africa

The following sections analyze positive law's role in contemporary South Africa's legal, political, and social domains, respectively. …

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