¹ The implicit tendency to collapse the past into the present, and vice versa, has produced a sort of reverse Whig historiography for South Africa in which, for example, the ‘roots’ of ‘apartheid’ are pushed further and further back, and in which, for example, the significance of the election of the Nationalist government in 1948 is diminished. These problems are obviously present in writing a legal ‘history’ which can, perhaps, be read as a story of the ‘roots’ of current failures. But it should be remembered that, when the events described took place, they were not the ‘roots’ of apartheid, but the culmination of the creation of a British post-colonial state.

² Some of the ideas were discussed by the Seminar on the Societies of Southern Africa at the Institute of Commonwealth Studies, London, i May 1987.

³ For an incisive survey of the literature on the nature of the state in the context of a discussion of law, see Wolpe, H., ‘Towards an analysis of the South African state’, Int. J. Sociology of Law, VIII (1980), 399.Google Scholar Where law is conceived of as ‘superstructural’, its content and operation are then seen as determined, wholly or partly, by capital, class struggle, etc. The response to this formulation is usually to assert the autonomy, wholly or in part, of law. I find these interlocking debates unfruitful in that they have taken place, in the South African case, without an historical description of ‘law’.

⁴ ‘Most men have a strong sense of justice, at least with regard to their own interests. If the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class's hegemony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just. It cannot seem to be so without upholding its own logic and criteria of equity; indeed, on occasion, by actually being just.’ Thompson, E. P., Whigs and Hunters (London, 1975), 263.Google Scholar

⁵ Cowen, D. V., The Foundations of Freedom (Cape Town, 1961).Google Scholar

⁶ Dugard, J., Human Rights and the South African Legal Order (Princeton, 1978)Google Scholar and idem, ‘Human rights and the rule of law: I’ in Butler, J. et al. (eds.) Democratic Liberalism in South Africa (Middletown, Conn., 1987)Google Scholar; Mathews, A. S., Law, Order and Liberty in South Africa (Capetown, 1971)Google Scholar; and idem, ‘Human rights and the rule of law: ii’, Butler et al., Democratic Liberalism.

⁷ Their appreciation of these matters has been based on a particular historical moment in American constitutional history.

⁸ For an effectively sceptical view of the concept of law as legitimation, see Hyde, A., ‘The concept of legitimation in the sociology of law’, Wisconsin Law Review (1983), 379.Google Scholar The concept of legitimacy in relation to the South African state generally is incisively discussed by Greenberg, Stanley in Legitimating the Illegitimate. State, Markets and Resistance in South Africa (Berkeley, 1987)Google Scholar; see in particular pp. 1–26 and 207–9. ‘Perhaps more than any other social order’, he writes, ‘ South African stands illegitimate and repressive before its own people’ (p. i). ‘In the absence of…shared sentiments … there looms an ominous brutishness - coercion exercised on a large scale and the threat of social disintegration’ (pp. 6–7).

⁹ There are good discussions by Davis, Dennis, ‘Political trials in South Africa’, in Davis, D. and Slabbert, M. (eds.), Crime and Power in South Africa (Cape Town, 1985)Google Scholar, and Suttner, R., ‘Political trials in South Africa’, Crime and Social Justice, XXIV (1985), 61.Google Scholar

¹⁰ Dugard attacks the Afrikaner constitutional lawyer, J. P. Verloren van Themaat, for his ‘scholarly diminution’ of the concept of the rule of law which he conceived of as a ‘political and not a juridical concept’. The new editor of van Themaat's Staatsreg is prasied for having acknowledged the ‘juridical nature of the rule of law’. See Dugard, ‘Human rights and the rule of law: i’, 273–4, 278. It is not clear why it is diminished by frank acknowledgement that it is a political concept, nor why it must be mystified and elevated to a ‘juridical’ realm.

¹¹ See, for example, Turk, A. T., ‘The meaning of criminality in South Africa’, Int. J. Sociology of Law, IX (1981), 123.Google Scholar I cannot accept this contention in an otherwise illuminating article. In current discussions of reform it is frequently posited as a starting point that the Roman-Dutch law must be done away with, as if this was the essence of the problem.

¹² Corder, H. and Davis, D., ‘Law and social practice: an introduction’, in Corder, H. (ed.), Essays on Law and Social Practice in South Africa (Johannesburg, 1988), 15.Google Scholar British cultural imperialism and ‘a slavishly Anglo-centric legal profession, both practising and academic’, they write, led to the unquestioning transplanting of the English ‘legal governmental’ system to South Africa (Ibid., 16).

¹³ Ibid.

¹⁴ For a most important analysis of the effects of British predominance over the Roman-Dutch private law, not only because of the use of precedents from common law courts in Britain, but because of the pervasive effects of British-derived statutes, see Sir Wessels, John, ‘The future of Roman Dutch law in South Africa’, 5. Afr. Law J., XXXVII (1920), 265.Google Scholar

¹⁵ See, for example, Sachs, A., Justice in South Africa (London, 1973).Google Scholar

¹⁶ For recent comments on this history, see Corder and Davies, ‘ Law and social practice: an introduction’; see also Blerk, A. van, ‘The genesis of the “ modernist”-“purist” debate: an historical bird's eye view’, Tydskrif vir Hedendaagse Romeinse-Hollandse Reg., XLVII (1984), 255Google Scholar; Forsyth, C. F., In Danger for their Talents (Cape Town, 1985), ch. 4Google Scholar, ‘The purism movement in the Appellate Division’.

¹⁷ The most effective introduction to the legal system as a whole remains Hahlo, H. and Kahn, E., The Union of South Africa. The Development of its Laws and Constitution (London and Cape Town, 1960)Google Scholar.

¹⁸ Corder, Hugh, Judges at Work. The Role and Attitudes of the South African Appellate Judiciary, 1910–1950 (Cape Town, 1984)Google Scholar, and Forsyth, C., In Danger for their Talents. A study of the Appellate Division of the Supreme Court of South Africa 1950–1980 (Cape Town, 1985)Google Scholar. (This Journal sought, obtained and despatched review copies of these books, but has failed to secure a review – Eds.)

¹⁹ To both Forsyth and Dugard (see Human Rights and the South African Legal Order) these are fundamental distinctions.

²⁰ A book worth reading for its impressionistic picture of the workings of a corner of the South African system at this level is Jackson's, JohnJustice in South Africa (London, 1980)Google Scholar.

²¹ This has been most effectively done by Bradford, Helen in A Taste of Freedom. The ICU in Rural South Africa 1924–1930 (New Haven, 1987)Google Scholar.

²² For an example see Suttner, R., ‘The judiciary: its ideological role in South Africa’, Int. J. Sociology of Law, XIV (1986), 47.Google Scholar

²³ One notable example is the work of the former Chief Justice L. C. Steyn, Die Uitleg van Wette (The interpretation of statutes), first published in 1946. This is discussed at length in Plessis, L. M. du, The Interpretation of Statutes (Durban, 1986)Google Scholar. See too Cowen, D. V., ‘The Interpretation of Statutes and the concept of the intention of the legislature’, Tydskrif vir Hedendaagse Romeinse-Hollandse Reg., XLIII (1980).Google Scholar On the broader questions of administrative law see the excellent and thoughtful Administrative Law by L. Baxter (Cape Town, 1984)Google Scholar and Wiechers, M., Administrative Law (Durban, 1984)Google Scholar. For a recent review see also Green, M. A., ‘What role can judges play in mitigating apartheid ? A study of the urban African legal regime’, Wisconsin Law Review (1987), 325Google Scholar, and the references therein cited.

²⁴ To illustrate the distinction, consider the difference between the approach of the Appellate Division in two vital cases affecting the rights of Asians. Innes, C. J. in Dadoov Krugersdorp Municipal Council, 1920Google Scholar, A.D. 530 at 552, referred to the ‘ wholesome’ rule of law which required the strict construction of statutes ‘which interfere with elementary rights. And it should be applied not only in interpreting a doubtful phrase, but in ascertaining the intent of the law as a whole’. While Innes managed to deny the obvious intention of Parliament, which had been to prevent Asians from buying freehold land, intentionalism as a mode of interpretation could produce very different judicial attitudes. When, in 1961, the validity of the operation of certain provisions of the Group Areas Act was challenged, Holmes J. A. called it a ‘ colossal social experiment’ involving compulsory population shifts. Parliament, he found, ‘must have envisaged…substantial disruption’ and ‘substantial inequalities’. The Court faced the ‘purely legal’ question of ‘whether this piece of legislation impliedly authorises towards the attainment of its goal, the more immediate and foreseeable discriminatory results…’ He said yes. Minister of Interior v Lockhat, 1961 (2), SA 587 A, at 602.Google Scholar Consider also the notorious Roussouw v Sachs, 1964 (2), SA 551Google Scholar A, where the Appellate Division decided that the power to detain for 90 days included the power to deny reading materials, even though this was not mentioned by the Act, because the intention of Parliament, in legislating for detention, was to induce detainees to speak.

²⁵ Onselen, Charles van, Studies in the Social and Economic History of the Witwatersrand 1886–1914, i. New Babylon, ii. New Nineveh (Harlow, 1982)Google Scholar; see also Helen Bradford, A Taste of Freedom, and Worger, William, ‘Workers as criminals. The rule of law in early Kimberley, 1870–1885’ in Cooper, F. (ed.), The Struggle for the City (Beverly Hills, 1983).Google Scholar

²⁶ Davis and Slabbert (eds.), Crime and Power in South Africa. For an innovative approach to ‘crime’ by a historian, see Bonner, P.L., ‘Family, crime and political consciousness in the East Rand, 1939–1955’, J. Southern Afr. Studies, XIV, 3 (1988).Google Scholar

²⁷ Bradford, A Taste of Freedom, especially ch. 2, ‘Masters and servants. The South African countryside 1920–1930’; Keegan, T., Rural Transformations in Industrialising South Africa. The Southern Highveld to 1914 (Johannesburg, 1986)Google Scholar, especially part 5, ‘The making of a servile tenantry’.

²⁸ See, e.g. Davis, D., ‘Repression and integration: two sides of the same apparatus’, Int. J. Sociology of Law, XV, i (1987), 61–84.Google Scholar On the centrality of control of labour to the development of the state, see Greenberg, Legitimating the Illegitimate.

²⁹ Though we are most fortunate in having as the starting point in this area the most sociologically-minded of all studies of the South African legal system, Jack Simons’ African Women: their status in South Africa (London, 1968).Google Scholar See also Lewin, J., Studies in African Native Law (Oxford, 1947; reprinted Philadelphia, 1971)CrossRefGoogle Scholar; and Burman, S., Chiefdom, Politics and Alien Law (London, 1981)Google Scholar; and ‘Divorce and the Disadvantaged: African Women in Urban South Africa’ in Hirschon, R. (ed.), Women and Property-Woman as Property (London, 1984).Google Scholar

³⁰ For an account of legal scholarship in South Africa in this field, see Hund, J. and Merwe, H. van der, Legal Ideology and Politics in South Africa: a Social Science Approach (London and Cape Town, 1986)Google Scholar, Part II,‘ Ideology and Indigenous Law’, pp. 3iff. They point not only to the influences of legal positivism, with its emphasis on abstract rule statements, and the volkekunde tradition of anthropology, but to the recent strength of neo-Calvinist doctrines of sphere sovereignty, and the metaphysical reality of groups, in creating a picture of African legal systems separated both from white law and from politics. For a new example of the old scholarship see Koyana, D. S., Customary Law in a Changing Society (Cape Town, 1980).Google Scholar

³¹ See Chanock, M. L., ‘The South African Native Administration Act of 1927. Reflections on a pathological case of legal pluralism’, Indian Law Institute and La Trobe University Colloquium, ‘The rights of subordinate peoples’, Melbourne, 1988.Google Scholar

³² Quoted by Lewin, , Studies in African Native Law, 10–11.Google Scholar

³³ The best account of the policies embodied in the Act is to be found in Lacey, M., Working for Boroko. The origins of a coercive labour system in South Africa (Johannesburg, 1981).Google Scholar For an unsurpassed description of aspects of the legal regime created see Stafford, W. G., Native Law as practised in Natal (Johannesburg, 1935).Google Scholar

³⁴ London, 1973. Also of importance is the volume of Acta Juridica published for the fiftieth anniversary of the Union: Acta Juridica, 1960 (Cape Town, 1961).Google Scholar

³⁵ The purposes of the police are now succinctly listed in hierarchical order in the Police Act (no. 5 of 1958), Section 5: ‘The functions of the South African Police shall be inter alia

(a) the preservation of the internal security of the Republic;

(b) the maintenance of law and order;

(c) the investigation of any offence or alleged offence; and

(d) the prevention of crime.’

³⁶ Modern South African judges have been blamed for an over-determined adherence to ‘legal positivism’-the separation of legal rules from values. Under Innes C.J. the Transvaal Court went far to establish this as the dominant style of the new judicial order. As he remarked with asperity in Kent v Transvaahche Bank, 1907, T.S. 774Google Scholar, ‘This court has again and again had occasion to point out that it does not administer a system of equity, as distinct from a system of law.’ It is tempting to contrast the determined positivism of Innes' court in the Transvaal with the style of de Villiers on the Cape Supreme Court: see the often neglected biography by Walker, Eric, Lord de Villiers and his Times. South Africa 1842–1914 (London, 1925).Google Scholar On Innes’ satisfaction with the judges' aloofness from politics, see Cowen, , Foundations of Freedom, 138.Google Scholar

³⁷ See Cowen, , Foundations, 138–41.Google Scholar Smuts asked incredulously, ‘was the Convention to leave the supreme power of government in the hands of an unrepresentative body such as a court of justice; and shall it be made possible for a court of justice to override an Act of Parliament ? That, however, was what was happening in Australia where the Supreme Court was giving judgement against the Parliament of the country.’ The natural result of the testing right, Smuts pointed out, was the politicization of the courts (Ibid., 139, 141). The judges, on the whole, agreed. See also Davidson, J., ‘The history of judicial oversight of legislative and judicial action in South Africa’, Harvard J. Law and Public Policy, VIII (1985), 687.Google Scholar

³⁸ One is reminded that a legal mind has been described as one which can think about a thing, inextricably connected to another thing, without thinking about the thing it is connected to. This may well be one of the keys to South African legalism. I shall give more space to matters criminal than might be justified in a comprehensive account of law, in which criminal law plays a small part, because I feel that the shape of a legal history should in some way reflect the experience of ‘law’ of the population as a whole.

³⁹ For details see Labuschagne, J. M. T., ‘Ras en rassime: strafregtelike mani-festasies’, Tydskrif vir Hedendaagse Romeinse-Hollandse Reg., XLV (1982).Google Scholar These years and the early years after Union were marked by a growing hysteria about inter-racial contact which culminated in the so-called ‘black peril’ Commission. See the Report of the Commission Appointed to Enquire into Assaults on Women (U.G. 34–13), an invaluable document for an understanding of the linking of crime with the physically degenerative and socially pollutive effects of racial contact. In general see van Onselen, Studies in the Social and Economic History of the Witwatersrand; i, part 3, ‘Prostitutes and proletarians’, and ii, ch. i, ‘The witches of suburbia: domestic service on the Witwatersrand, 1890–1914’; Swanson, M.‘The Sanitation Syndrome’ J. Afr. Hist., XVIII, 3 (1977).Google Scholar

⁴⁰ van Zyl Smit writes that the origins of official racial discrimination in prisons can be traced to the use of black prisoners as labour for the diamond mines. Smit, D. v. Zyl, ‘Normal Prisons in an Abnormal Society? A Comparative Perspective on South African Prison Law and Practice’, S. Afr. J. Human Rights, III, 2 (1987), 157 n. 60.Google Scholar Indeed, as prisons developed, the distinction between prison labour and ‘free’ labour is virtually collapsed in the institution of the farm prison for pass law offenders. But an emphasis on labour does not quite capture the fear of pollutive criminalization, and of the effects of black contact with ‘degraded’ whites, which pervaded. The mixing of Europeans and Africans in prisons, said a Cape Government Commission of 1888,‘…not only crushes out of the European what little moral feeling there may be left in him, by the sense of degradation, but lowers the whole race in the eyes of the native’. Quoted in Zyl Smit, D. van, ‘Public policy and the punishment of crime in a divided society: an historical perspective on the South African penal system’, Crime and Social Justice, XX–XXI (1984), 157.Google Scholar This is still the dominating spirit: see the Prisons Act (no. 8 of 1959), Section 23 (i) b: ‘ In every prison, as far as possible, white and non-white prisoners shall be detained in separate parts thereof and in such a manner as to prevent white and non-white prisoners from being within view of each other’.

⁴¹ Krause, F. E. T., ‘Crime and its punishment’, S. Afr. J. Science, XXXVI (1939), 114.Google Scholar Krause had himself been imprisoned in the U.K. Regulation 28 (8), he wrote, ‘excites one's sense of humour… officers are recommended to read the books on penology supplied to libraries … I wonder what these books were in 1911 ’ (Ibid., 122–3). It is possible to trace an increasing harshness in the punitive aspects of criminal justice in the years after Union. See in particular Sachs, A., Justice in South Africa, 162–70Google Scholar, where increases in the numbers imprisoned and in the severity of punishments is detailed. On the benchmark issue of hangings, even allowing for changes in the law, the proportion of reprieves to death sentences fell remorselessly during the first fifty years of Union, while the number of persons hung annually increased nearly five times. See Report of the Penal and Prisons Reform Commission U.G. 47 of 1947 and Kahn, E., ‘The death penalty in South Africa’, Tydskrif vir Hedendaagse Romeinse-Hollandse Reg., XXXIII (1970).Google Scholar

⁴² The story goes beyond statutory initiatives with the judges developing their use of the common law doctrine salus reipublicae suprema lex est (the safety of the State is the supreme law). See, e.g., Krohn v. The Minister for Defence, 1915, A.D. at 240 where the doctrine was invoked by Innes J. A. He went on ‘…There is an inherent right in every state, as in every individual, to use all means at its disposal to defend itself when its existence is at stake… Such a condition of things may be brought about by war, rebellion or civil commotion …’ For later developments see Venter, F., ‘ Salus reipublicae suprema lex est’, Tydskrif vir Hedendaagse Romeinse-Hollandse Reg., XL (1977).Google Scholar

⁴³ These matters are documented in the files of the Union Department of Justice. It is perhaps worth noting here that those police involved in political policing in South Africa, during the years with which I am concerned, had a far more ‘liberal’ approach to the opposition to the state than their political masters.

⁴⁴ Again, the Transvaal between 1902 and Union sees crucial initiatives in the reconstruction of company law and gold law. On the latter see Kaplan, L. V., ‘The development of various aspects of the gold mining laws in South Africa from 1871 to 1967’ (Ph.D. thesis, University of the Witwatersrand, 1984)Google Scholar and Kaplan, L. V., ‘Mining in South Africa and private enterprise’, S. Afr. J. Human Rights, III (1987).Google Scholar Rights in minerals were restricted to whites, thus legally excluding blacks from the country's main wealth. This deserves mention as the political, land and labour colour bars have been given far greater prominence.

⁴⁵ Before this even the Roman-Dutch law had become ‘anglicized’. ‘It has’, commented Lee, R. W., ‘broken from its moorings in Europe. Codification and scientific doctrine have left it untouched. It has learnt from English law to despise professors and live from hand to mouth.’ Quoted by I. van Zyl Steyn in 'The comparative method in legal study’, S. Afr. Law J., XLVIII (1931) at 205.Google Scholar But the professors at the Afrikaans law faculties, with their emphasis on systematic exposition of principles derived from the modern civil law, were eventually to triumph. See van Blerk, ‘The genesis of the “modernist”–“purist” debate” (cited in n. 16). But their triumph in some basic areas of doctrine did not extend to what had been, for some, a more important agenda, the codification of the civil law. Roman-Dutch law continued to develop ‘from hand to mouth’, by the common law method of precedent. This was, I think, because the profession was more powerful than the professoriat.

⁴⁶ The South African legal profession awaits its historian. Law is, after all, what lawyers do. They played a crucial role in white political parties and in opposition movements. For a unique and valuable study of the activities of one country lawyer within the framework of racial and economic oppression see Peires, J., ‘The legend of Fenner-Solomon’, in Bozzoli, B. (ed.), Class, Community and Conflict (Johannesburg, 1987).Google Scholar

⁴⁷ See Greenberg, , Legitimating the Illegitimate, 146–7, 199–200.Google Scholar The Assocom report quoted at 199–200 looks to an ‘affirmation of the norms of the existing common law of South Africa’. These norms, it is suggested, are ‘“personal freedom”, “freedom of property and contract”, and “personal culpability”’.

⁴⁸ See Lacey, , Working for Boroko, 101Google Scholaret seq., and therein R. v. Mabi and others 1935, T.P.D. 408.Google Scholar In addition the courts of Chiefs and Headmen were given powers to punish contempt and to impose fines for disobedience of administrative orders. Section 18 of the revised Natal Code of Native Law, proclaimed in 1932, read ‘Chiefs and headmen have authority to require compliance by the people under their jurisdiction with their duties under native law and may give orders for that purpose. The enforcement of obedience to authority of the duty of children to their parents and of the obligations of inmates of kraals towards their kraal heads shall in particular fall within the scope of their authority.’ According to section 25, everyone who was not a kraal head was ‘a kraal inmate subject to a kraal head’.

⁴⁹ Individualism was also a problem for administrative control. In the words of J. A. Herbst, then Secretary of the Department of Native Affairs, ‘…tribal rule has…been sapped of its vitality by the intrusion of European individualism in advance of the habits and understanding of the people with the result that there is confusion and doubt where order and coherence are necessary’. Quoted by Lacey, , Working for Boroko, 95.Google Scholar Section ii of the Native Administration Act provided that ‘…it shall be in the discretion of the Courts of Native Commissioners in all suits or proceedings between Natives involving questions of customs followed by Natives, to decide such questions according to the Native law…’ But this did not settle the question of whether the common law or the native law was to be preferred. The new Native Appeal Courts began to take the view that Parliament had intended the ‘Native Law’ to be given preference, as did the instructions to Native Commissioners issued under the Act. See Lewin, Studies in African Native Law, and Chanock, ‘ The South African Native Administration Act’ (as cited in n. 31).

⁵⁰ See the Natal Code of Native Law as proclaimed in 1932, sections 25; 27 (i) and (2) and 35 (i) and (2). Thus not only could women not control property in law; they could not contract a valid marriage without the consent of a male guardian. One must note too that the patriarchal regime had had an important part to play in labour law which had been marked, in rural areas, by the struggle over the powers of family heads to enter into labour contracts on behalf of their children. See, e.g., Keegan, , Rural Transformations, part 5.Google Scholar

⁵¹ The constitutional authority, H. J. May, appeared to recognise a difference when he described the system created by the Native Administration Act as ‘extra-parliamentary government …a system of administration rather than law’. See Budlender, G., ‘Law and Lawlessness in South Africa’, S. Afr. J. Human Rights, IV (1988), 141.Google Scholar But, as the next section shows, it is hard to define what this difference is. Budlender takes a characteristically lawyerlike view, writing of ‘…laws which place such unrestrained powers in the hands of state officials that the exercise of state power is effectively lawless — that is, there is no independent judicial control over the exercise of power’ (Ibid., 140).

⁵² Dean, W. H. B., ‘Our administrative law: a dismal science?’, S. Afr. J. Human Rights, XI (1986), 164.CrossRefGoogle Scholar See also his historical review of the courts’ approach to discretion, ‘ Reason and prejudice: the courts and licensing bodies in the Transvaal’, in Kahn, E. (ed.) Fiat Justitia: Essays in memory of O. D. Schreiner (Cape Town, 1983).Google Scholar

⁵³ London, 1929. See also on this, as on most things, Weber, Max (eds. Roth, G. and Wittich, C. ), Economy and Society (Berkeley, 1968), IIGoogle Scholar, and Allen, C. K., Law and Order: an enquiry into the nature and scope of delegated legislation and executive powers in England (London, 1945)Google Scholar and Unger, R. M., Law in Modern Society (New York, 1976), 3.Google Scholar What is perhaps remarkable is the extent to which an ideological image of law, based upon a different kind of state, has survived.

⁵⁴ For an interesting discussion of the way in which the State ‘… extended the domain of law to engulf the “native problem”’, see Robertson, M., ‘Segregation and Land Law: a socio-legal analysis’, in Corder (ed.), Essays on Law and Social Practice, 306Google Scholaret seq. It should not be thought that the detailed and ever-further reaching statutory powers reflect the nature of the controls actually exercised. The persistent and unremitting legislating is as much an index of the intractable difficulties of moulding the social order in the face of political resistances and markets.

⁵⁵ There has also been discussion by South African lawyers as to whether the judges should be interpreting discriminatory statutes as subject to an immanently ‘liberal’ Roman-Dutch common law: see, for example, Dugard, Human Rights, and Hoexter, C., ‘Judicial policy in South Africa’, S. Afr. Law J., III (1986), 103.Google Scholar There is no doubt, however, that in ‘legal-realist’ terms the common law has not been free of racism, and, even in formalist terms, doubt has been expressed at the highest level. See the remarks of Beyer J. A., in Minister of Post and Telegraphs v. Rassool, 1934Google Scholar, A.D: ‘The statement that all are equal in the eyes of the law cannot be unreservedly accepted. It is undoubtedly subject to considerable qualification; and as far as the Transvaal is concerned, it is a fact that Europeans and non-Europeans were never equal in the eyes of the law’. Quoted by Sachs, A., Justice in South Africa, 140.Google Scholar

⁵⁶ Sugarman, D. and Rubin, G. R., ‘Towards a new history of law and society in England, 1750–1914’, in Sugarman, D. and Rubin, D. R. (eds.), Law, Economy and Society 1750–1914: essays in the history of English law (Abingdon, 1984), 74.Google Scholar

⁵⁷ Weber, , Economy and Society, II, 731.Google Scholar

⁵⁸ I express my gratitude for access to the invaluable collections at the Institute of African Studies at the University of the Witwatersrand.

⁵⁹ Much has never been revealed because of problems of censorship. Discussions of prisons and police have long been affected by the Prisons Act and the Police Act (see the discussion in Davis and Slabbert (eds.), Crime and Power, ch. 2). There has also been the extraordinary sensitivity of the authorities and judges to academic criticism, evidenced by the legal pursuit of Barend van Niekerk for his writings on the death penalty.

⁶⁰ Toit, D. C. du, ‘Cowboys and crooks. Judges and legislative intention’, Tydskrif vir Regwetenskap, II (1986) (pages unnumbered).Google Scholar