1 Thus John Dugard, a powerful South African critic of apartheid law for many years, wrote recently that “lilt was inevitable that blacks would lose confidence in this system of law. Consequently, for the majority of the population, the law is not legitimate.” John Dugard, “Blacks and the Administration of Justice,” in Dugard, ed., The last Years of Apartheid: Civil Liberties in South Africa 95, 103 (1992) (“Dugard, Lact Years”). So, too, Charles Dlamini, a prominent African legal scholar, has written: “The legitimacy crisis in South Africa has largely stemmed from the fact that black people have not felt that the law that is applicable to them is made by them and for them.” Charles R. M. Dlarnini, “Towards a New Legal Order for a New South Africa,” 16 Legal Stud. F. 131, 136 (1992). Similarly, Nico Steytler commented that “[i]t has been said [by Albie Sachs, in 1975) that the majority of South Africans accord less legitimacy to their laws than perhaps any other governed group in modern society.” N. C. Steytler, “Criminal Justice and the Apartheid State,” in A. J. Rycroft, L. J. Boulle, M. K. Robertson, & P. R. Spiller, eds.,Race und the Law in South Africa 68, 68 (1987).Google Scholar

2 Stephen Ellrnann, In a Time of Trouble: Law und Liberty in South Afnca's State of Emergency 231–47 (1992) (“Ellrnann, 7kme of Trouble”).Google Scholar

3 Cf. Raymond Wacks, “Judges and Injustice,” 101 S. Afr. L.J. 266 (1984).Google Scholar

4 Cf., e.g., Ronen Shamir,” 'Landmark Cases' and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice,”24 Lwo & Soc'y Rev. 781 (1990); Frederick E. Snyder, “State of Siege and Rule of Law in Argentina: The Politics and Rhetoric of Vindication,”15 Lawyer of the Americas 503 (1984). “Critical” scholars and others have seen similar dangers in domestic American legal contexts. For example, Austin Sarat sees legal or quasi-legal arguments used by members of the “welfare poor” as “reaffirm[ing] law's dominance even as they are used to challenge the decisions of particular legal officials-or to provide the grounds for a redress of grievances.” Austin Sarat,” '. The Law Is All Over': Power, Resistance and the Legal Consciousness of the Welfare Poor,”2 Yale J.L. & Hum. 343, 374 (1990).Google Scholar

5 Ellmann, Time of Trouble 176–86.Google Scholar

6 Id. at 257–68. These arguments point to the value of the efforts anti-apartheid lawyers had made to challenge emergency powers in the South African courts. The possibility remains, however, that some other course of conduct by lawyers would have been even more effective. Perhaps the most plausible alternative would have been a Gandhian refusal to offer any defense other than an appeal to pure moral principle. In my book I suggest that in South Africa the potential reluctance of the legal community and of the victims of apartheid to engage in such tactics, as well as the possibly hostile response of the white population to them, would have made the success of a Gandhian approach dubious. These considerations helped confirm the general correcmess, in the circumstances, of the continued participation in the South African legal system by lawyers and judges opposed to apartheid. Id. at 268–72. It is my understanding now, however, that certain liberal judges and lawyers did consider, or even threaten, organized acts of nonparticipation during the apartheid years.Google Scholar

7 In 1986, Lawrence Schlemmer wrote flatly: “Most blacks completely reject apartheid.”“The Sanctions Surveys: In Search of Ordinary Black Opinion,” 4 (2) Indicator SA 9, 9 (1986). Indeed, the demise of apartheid may be less the immediate result of a failure of legitimacy than of the breakdown of the strategies of manipulation by which whites had maintained power despite “never [having] possessed power in the eyes of [their] subordinates.” See Heribert Adam, “Engineering Compliance: The Management of Dissent in South Africa,” in John Hund, ed., Law and Justice in South Am 173, 189 (1988) (“Adam, ‘Compliance’”). See generally David O. Friedrichs, “Law in South Africa and the Legitimacy Crisis,” 14 (2) Intl J. Comp. & App. Crim. Just. 1 (1990).Google Scholar

8 See Alan Hyde, “The Concept of Legitimation in the Sociology of Law,” 1983 Wis. L. Rev. 379Google Scholar

9 Id. at 380.Google Scholar

10 Id. at 386–400.Google Scholar

11 See Tom R. Tyler, Why People Obey rhe Law (1990) (“Tyler, Why Obey Law”).Google Scholar

12 There is some evidence that many black South Africans, presumably the most likely to acknowledge no obligation to obey apartheid's laws, did feel a duty to comply with law. See note 147 infra. Even the tactics of anti-apartheid groups within South Africa may have been, as one observer emphasized to me, quite legalistic.Google Scholar

13 This discussion of the components of legitimacy is guided by Tyler, Why Obey Law Google Scholar

14 Susan F. Hirsch & Mindie Lazarus-Black, “Introduction-Performance and Paradox: Exploring Law's Role in Hegemony and Resistance,” in Mindie Lazarus-Black & Susan F. Hirsch, eds., Contested States: Law, Hegemony and Resistance 1, 7 (1994) (“Hirsch & Lazarus-Black, ‘Introduction’”); see Jean Comaroff & John Comaroff, 1 Of Revelation and Reuolurion: Christianity, Colonialism, and Consciousness in South Africa 23 (1991) (“Comaroff 61 Comaroff, Revelation”).Google Scholar

15 Hirsch & Lazarus-Black, “Introduction” at 8–9.Google Scholar

16 For this contrast between ideology and hegemony, see id. at 8; see also Comaroff & Comaroff, Revelation 25.Google Scholar

17 I use the term “Africans” to refer to South Africans of African descent; I use the term “blacks” to refer to all South Africans of African, mixed-race (“Coloured,” in the South African terminology which, for the sake of clarity, I use), and Asian (Indian) descent.Google Scholar

18 See The Federnlist No. 47, at 303–4 (James Madison) (Isaac Kramnick ed. 1987).Google Scholar

19 One scholar refers to the “popular formula” that “the American population was in equal parts Loyalist. pamot, and neutral,” although he goes on to say that “it is to be suspected that the patriot element was larger than the others, both before and after 1776.” John Richard Alden, The American Revolution 1775–1783 at 87 (1964). I am grateful to Kate McLeod of the New York Law School Library for this information.Google Scholar

20 Valerie Moller, “Can't Get No Satisfaction: Quality of Life in the 198Os,” 7 (1) Indicaror SA 43, 44 (1989).Google Scholar

21 Id. at 46.Google Scholar

22 Coloureds and Indians, for their part, were decidedly more satisfied, on most of these points, than were Africans. Id. at 44.Google Scholar

23 Robert L. Wilkins, “The South African Legal System: Black Lawyers' Views,” 7 (3) TransAfi. F. 9, 13 (1990).Google Scholar

24 Id. at 14.Google Scholar

25 Id. at 16.Google Scholar

26 Id. Google Scholar

27 Id. at 28.Google Scholar

28 According to an “editors' note” accompanying Wilkins's piece, “a significant number” of these lawyers referred to South Africa not by that name but as “Azania.”Id. at 30. This choice of terminology may reflect their sympathy with groups such as the Azanian People's Organization or the Pan Africanist Congress, both of which have taken decidedly more uncompromising positions toward whites than has the more popular African National Congress.Google Scholar

29 Interview with Pansy Tlakula & Tom Lediga, 7 Nov. 1994.Google Scholar

30 Interview with Nomazizi Mtshotshosa, 7 Nov. 1994.Google Scholar

31 Jon Qwelane, “How Our Communities Perceive Our Legal System,” in Michelle Norton, ed., Reshaping the Structurs of Justice for a Democratic South Africa (Papers of a Conference Organized by the National Association of Democratic Lawyers, Oct. 1993, Pretoria) 1, 1 (1994) (“Qwelane, ‘Communities’”).Google Scholar

32 Id. at 3.Google Scholar

33 Id. at 4.Google Scholar

34 Id. at 5–6.Google Scholar

35 Nelson Mandela,”‘Black Man in a White Court’: First Court Statement, 1962,” in Mandela, The Struggle Is My Life 125 (London: International Defence & Aid Fund for Southem Africa, 1978). A South African lawyer has reminded me, however, that Mandela may have needed to disavow any personal attack on the magistrate for pragmatic legal reasons.Google Scholar

36 Anthony Sampson, “18 Days: A South African Journal.”N.Y. Tims Mag., 18 March 1990, at 38, 44.Google Scholar

37 Shaun Johnson, “Stoicism in the Mountains,” in Johnson, Strange Days Indeed: Tales from the Old and the Neurly New Sourh Africa 168–69 (London: Bantam Press, 1993).Google Scholar

38 Denis Beckett, “Textbook Law, Uncoloured by Pigment,”The Star (Johannesburg), 14 Oct. 1993.Google Scholar

39 Neither Mandela's nor Sexwale's support is by any means unbounded. Mandela has commented: “Some of us felt strongly that there was a fundamental difference between law and justice, between legality and legitimacy.”“Mandela Chides the Legal Profession,” 3 RIGHTS: A Lawyers for Human Rights Publication, Oct. 1991, at 4, 5, quoted in S. Nadasen, “Changing Law in a Changing Society: Reflections from a Black Perspective,” 110 S. Afr. L.J. 580, 581 (1983). Sexwale has reportedly been criticized by a South African newspaper for what it saw as encouragement to ANC supporters not to acknowledge “the integrity of the court” in the same case he is discussing in the statement quoted in the text. “Finding Justice,”Business Day, 18 Oct. 1993, reported in This Week in Souh Africa: News Highlights from the Souh African Media (South African Consulate General, New York, 12–18 Oct. 1993).Google Scholar

40 Interview with Lucas Kgatitsoe, 3 Nov. 1994, transcript at 4. Though Mr. Kgatitsoe was the sole or principal speaker during the taping of this interview, I met with him in the company of other members of the “Reef” committee of the Magopa people. The interview took place in his house in Soweto.Google Scholar

41 Id. at 5.Google Scholar

42 More v. Minister of Co-operation and Developmenta, 1986 (1) SA 102 (A). It would be many more years, however, before they were able to return to their land.Google Scholar

43 Kgatitsoe interview, 3 Nov. 1994, transcript at 7–9.Google Scholar

44 For example, consider the large proportions of urban Africans who told surveyors in 1985 and 1987 that they approved of “armed struggle” to bring about the end of apartheid. See text at note 95 infra. Google Scholar

45 It is my understanding that Markinor did not poll on this question between 1981 and 1990.Google Scholar

46 This is the text of the question as asked in 1990.Google Scholar

47 In 1990, the other institutions were the church, the armed forces, the education system, the press, trade unions, the civil service, major companies, the social security system, and the National Party. The lists in 1981 and 1993 appear to have been similar.Google Scholar

48 See text at notes 73–75 infra. These differences appear even when, as in 1990, respondents were asked about the legal system before they were asked about the police or Parliament. Apparently respondents differentiated between the legal system and these other institutions, at least to some extent, even before polltakers separated the institutions our through their questions.Google Scholar

49 Another possible component of the “legal system” would be the civil service. Though the data I have on Africans' views of the civil service are not as complete as those on their views of the legal system, the police, and Parliament, the data do suggest that urban Africans differentiated at least to some extent between the ‘legal system” and the civil service, just as they did between the legal system and the police or Parliament. In 1981, more urban Africans expressed a great deal of confidence in the legal system (39%) than offered this view of the civil service (26%). Markinor 1981 at 92 (cited in note 51). In 1990, similarly, urban Africans were more likely to express a great deal or quite a lot of confidence in the legal system (63%) than in the civil service (55%). Markinor 1990 at 68 (cited in note 56).Google Scholar

50 Because the poll questionnaires were probably often administered to African respondents in African languages, it is clearly possible that one source of ambiguity in the poll results was the difficulty of translation. One black South African scholar suggested to me that a likely translation of “legal system” might have pointed respondents toward thinking of the idea of law in general.Google Scholar

51 See The Markinor South African Social Value Study-In Association with Gallup International 93 (March 1982) (cited as “Markinor 1981,“since the polling for this study was done in August-October 1981). In this poll, 39% of Africans expressed a great deal of confidence in the education system.Google Scholar

52 See text and note at note 73 infra. Google Scholar

53 See text and notes at notes 64–72 infra CrossRefGoogle Scholar

54 In addition, it is worth mentioning that examination of the polling data for 1990 and 1993 confirms that the black South Africans polled came from a substantial range of income and education levels. The 1981 data that I have do not make the socioeconomic range of respondents clear, but Markinor's report states: “All samples were quota samples, stratified by area and controlled within sex by: Age, Language/Fthnic group; Working status; Household income.”Markinor 1981 at 5 (punctuation modified).Google Scholar

55 Id. at 5. Most discussion of this poll in this article will not be based on this report, however, but on the more detailed statistical materials, kindly provided to me by Mari Harris of Markinor, on attitudes toward the legal system, Parliament, and the police. I cite these materials as “Markinor 1981 Statistics.”Google Scholar

56 See Markinor, The World Social Value Study-South Africa-Urban Written Report 5 (March 1991) (cited as “Mntkinor 1990,” since the polling was done in October and November 1990). The 600 metropolitan Africans included squatters. Id. This report does not include the data gathered for the 500 rural Africans polled; detailed statistical breakdowns on the attitudes of urban and rural Africans, & loured, and Asians toward the legal system, Parliament, and the police were provided to me by Mari Harris of Markinor and are cited as “Markinor 1990 Statistics.” The rural Africans polled came from the homelands of KwaZulu, Transkei, Lebowa, Gazankulu, and Ebphuthatswana. Ms. Harris has informed me that because of the relatively small sample sizes (100 from each homeland), data on riral African opinion should be viewed “only as indications.”Letter from Mari Harris, 17 Nov. 1993.Google Scholar

57 This information is drawn from the statistical breakdowns, sent to me by Ms. Harris, of data on attitudes toward the legal system, Parliament, and the police (cited as “Markinor 1993 Statistics”) and from additional information which Ms. Harris provided to me conceming the methodology of another poll, Markinor Socio-political Trends (May 1993), in the course of which “confidence” questions were put to Africans and whites (different groups were evidently polled in different months). The statistical breakdowns provided to me with respect to whites are dated May 1993; those for Africans June 1993; and those for Coloureds and Asians August 1993; though all of these are cited as “Markinor 1993 Statistics,” the dates of the printouts are also given.Google Scholar

58 One possible defect of the polls is that the “confidence” questions, at least in 1981 and 1990, evidently were part of much larger questionnaires. One South African pollster suggested to me that respondents' attention might have flagged in the course of the polling. While this may well be true, the fact that respondents did not express the same levels of confidence in the related institutions of police, Parliament, and the legal system helps to confirm that those polled were still focusing on each question asked.Google Scholar

59 Personal communications from Mari Harris of Markinor, Nov. 1994, April 1995. The possibility of misunderstanding presumably was further reduced when the polltaker personally interviewed the respondent, rather than allowing the respondent to fill out the questionnaire himself or herself. In 1981, respondents of all races had the option to fill out the questionnaires themselves, presumably on their own. See Murkinm 1981 at 6. In 1990, primarily for reasons of expense, a random sample of white respondents apparently was selected from a preestablished polling list, and the survey results for whites are principally based on the responses of those who chose to fill in the questionnaires they received (1,086 of 2,500); all black respondents, however, were interviewed on a “personal, face-to-face basis.”Markinor 1990 at 6–8. In 1993. whites were apparently interviewed by telephone, while Africans were interviewed in person, see Murkinor Soh-politid Trod 4. (I do not have specific information on the interviewing method used with Coloured and Asian respondents in 1993.)Google Scholar

60 MArkinor 1981 at 96. In 1985 and 1987 Mark Orkin. a decidedly anti-apartheid South African pollster, found that 40 to 45% of urban Africans approved of “armed struggle against the government's security forces” to brig about the end of apartheid. Mark Orkin, “Politics, Social Change, and Black Attitudes to Sanctions,” in Orkin, ed., Sanctions against Apartheid 81, 85–86, 293 11.13 (1989) (“Orkin, ‘Politics”’). Though Orkin's question was focused on South Africa, while Markinor's question was not, the answers obtained seem comparable. The similarity is all the more significant since Orkin's question asked about “armed struggle, while Markinor's used the much less attractive term “terrorism.” A report of the Human Sciences Research Council provides additional data of a similar cast. This report indicates that “on the question of whether violence was an acceptable means [of] achieving political aims, 63% of the Africans, 40% of the Indians, 37% of the coloureds and 30% of the whites reacted positively.” Human Sciences Research Council, Main Committee: HSRC Investigation into Intergroup Relations, The South Afican Society: Realities and Future Prospects 86 (1985) (“South African Society”).Google Scholar

61 Markinor 1981 at 97 (cited in note 51).Google Scholar

62 Id. at 94. For this question and for those referred to in the previous two sentences of the text, Markinor's report gives figures for “Total Blacks.” It is not clear to me whether this term is meant to embrace Coloureds and Asians as well as Africans (ordinarily Markinor uses the term “Black” to refer to those whom 1 describe as “African”). If so, then the percentages of Aficans expressing these views would have been even higher than the figures I have given in the text, since in each case the figure given for “Total Blacks” is higher than the figures for Coloureds and Asians.Google Scholar

63 Id. at 78. Asked to indicate whether these and other forms of conduct were justifiable by choosing from a 10-point scale, on which “1” meant “never justified” and “lo” meant “always” justified, Africans overall rated “fighting with the police” at 3.7 and “political assassination” at “3.5.” (The scores of whites for these two questions were 1.7 and 1.5, respectively; Coloureds and Asians fell between whites and Africans, but closer to whites.)Google Scholar

64 Id. at 93.Google Scholar

65 Of Afrikaners, 56% expressed a great deal of confidence in the armed forces, 57% had this attitude toward the police, and 37% had this view of Parliament. Asians, who were more likely to express great confidence in these institutions than any other group of blacks, were still much less likely than Afrikaners; only 29% expressed this attitude toward the armed forces, 23% toward the police, and 18% toward Parliament. Of Afrikaners, 39% held this opinion of the legal system; only 24% of Africans, 23% of Asians, and 11% of Coloureds shared it. Id. at 92. It should not be thought that all whites were enthusiastic about these institutions. English-speaking South Africans, long on the periphery of South African political power, were less confident than Afrikaners were in each of these institutions, sometimes dramatically less. Id. It is worth noting that the percentage of Africans expressing great confidence in the South African legal system in this poll was greater than the percentage of English-speaking whites who shared this sentiment (18%).Google Scholar

66 Of Coloureds, 51% expressed such confidence (11% stating they had a great deal of confidence, and 40% that they quite had a lot). Of Asians, 59% had similar views (23% with great confidence and 36% with quite a lot). “Markinor 1981 Statistics” at 46 (cited in note 55). Of whites, 81% had either a great deal or quite a lot of confidence. Id. Google Scholar

67 See text at note 64 supra. Google Scholar

68 Of urban blacks, 53.6% expressed a great deal or quite a lot of confidence in Parliament in 1990 (and 68.9% of rural blacks); only 24% had expressed these sentiments in 1981. Again, of urban blacks, 48.6% expressed such confidence in the police (and 69.2% of rural blacks); only 31% had shared these feelings in 1981. “Markinor 1990 Statistics” at 166–67, 174–75 (cited in note 56); “Markinor 1981 Statistics” at 47 (cited in note 55).Google Scholar

69 Mari Harris of Markinor (personal communication, 17 Nov. 1993) informed me that the impact of dashed hops reflected in these data showed up in other Markinor surveys as well.Google Scholar

70 Of urban Africans, 35% expressed “not very much” confidence in the legal system, while another 25.7% expressed no confidence in it at all. “Markinor 1993 Statistics” at 20, Table 7/3 (June 1993) (cited in note 57).Google Scholar

71 Id. at 20, Table 7/3; 23, Table 7/6; 24, Table 7/7 (June 1993).Google Scholar

72 The levels of Coloured, Asian, and white confidence in the legal system in 1993 are shown in the table in appendix 1. The changes in these groups' confidence in the police and Parliament from 1990 to 1993 can be summarized from their mean confidence levels (calculated by scoring “a great deal” of confidence as 4, “quite a lot” as 3, “not very much” as 2, and “none at all” as 1). Coloureds' mean level of confidence in the police fell from 2.66 in 1990 to 2.59 in 1993; their mean level of confidence in Parliament fell from 2.66 in 1990 to 2.32 in 1993. Asians' mean level of confidence in the police fell from 3.01 in 1990 to 2.60 in 1993; their mean level of confidence in Parliament fell from 2.78 in 1990 to 2.25 in 1993. Whites' mean level of confidence in the police rose from 3.24 in 1990 to 3.33 in 1993; their mean level of confidence in Parliament fell from 2.81 in 1990 to 2.47 in 1993. See “Markinor 1993 Statistics” at 23, Table 7/6; 24, Table 7/7 (Aug. 1993) (cited in note 57) (separate tables for Coloureds and Asians on identically paginated pages); id. at 22, Table 10/6; 23, Table 10/7 (May 1993) (whites); “Markinor 1990 Statistics” at 166, Table 86/7; 167, Table 86/8 (whites); 174, Table 86/7; 175, Table 86/8 (Coloureds and Asians) (cited in note 56). (All of these gaps exceed the combined “standard errors” provided by Markinor for the 1990 and 1993 data, with the exception of the modest fall in Coloureds' confidence in the police.)Google Scholar

73 Markinor 1981 at 92 (cited in note 51). Smaller percentages also expressed this level of confidence in “major companies” (22%), the press (18%), and trade unions (17%). In fact, the only institutions in which higher percentages of Africans expressed a “great deal” of confidence were the church (45%) and the education system (39%). The differences between Africans' views of the legal system and their views of the police and Parliament are also evident in the mean confidence levels. For the legal system, Africans' mean confidence level was 2.52; for the police, 2.04; and for Parliament, 1.91. “Markinor 1981 Statistics” at 46–47 (cited in note 55). (These differences exceed the combined standard errors reported with the data.) The differen & between Africans views' of the legal system and of rhe police and Parliament are also apparent in the data on the percentages of African respondents who made clear that they did not have much confidence in these institutions. (These data are also significant as an indication that a great many poll respondents were prepared to speak their mind, and were apparently speaking it on the subject of the institutions they currently lived under, rather than addressing more abstract questions of, say, the desirability of a legal system or of a police force or a legislature.) In 1981, 75% of Africans said that they had either not very much confidence, or none at all, in Parliament, while 68% expressed such attitudes about the police, and 49% offered these views of the legal system. id. at 47.Google Scholar

74 See note 68 supra. Google Scholar

75 “Markinor 1993 Statistics” at 20, Table 7/3; 23, Table 7/6; 24, Table 7/7 (June 1993) (cited in note 57). The mean confidence levels were 2.07 for the legal system, 1.76 for the police, and 1.84 for Parliament. (The gaps between each of these exceed the corresponding standard errors reported.)Google Scholar

76 “Markinor 1981 Statistics” at 46 (cited in note 55). The mean confidence levels were 2.525 (Africans), 2.50 (Coloureds), and 2.71 (Asians). Id. (Only the gaps between the Asian mean on one hand, and the Coloured or African means on the other, exceed the corresponding standard errors.) Though the African and Coloured means are very close, it is striking that a much higher proportion of Africans (24%) than of Coloureds (11%) expressed “a great deal” of confidence at this point. Id. Google Scholar

77 “Markinor 1990 Statistics” at 163, Table 86/4; 171, Table 86/4 (cited in note 56). The mean confidence levels for urban Africans were 2.84, for Coloureds 2.78, and for Asians 2.95. (Only the gap between Coloureds and Asians exceeds the corresponding standard errors.)Google Scholar

78 The mean confidence levels also reflect this gap: the levels for Africans were 2.07, for Coloureds 2.42, and for Asians 2.33. “Markinor 1993 Statistics” at 20, Table 7/3 (June 1993) (urban Africans); id. at 20, Table 7/3 (Aug. 1993) (separate tables for Coloureds and Asians on two identically numbered pages) (cited in note 57). (The gaps between each of these means exceed the reported standard errors.)Google Scholar

79 The mean contidence levels for Africans were 2.52 for the legal system and 2.04 for the police; for Coloureds they were 2.50 for the legal system and 2.48 for the police; and for Asians they were 2.71 for the legal system and 2.70 for the police. “Markinor 1981 Statistics” at 46–47 (cited in note 55). Unsurprisingly, only the two African assessments differ by more than the corresponding standard errors.Google Scholar

80 “Markinor 1990 Statistics” at 171, Table 86/4; 174, Table 86/7 (cited in note 56). Of Coloureds, 59.4% expressed a great deal or quite a lot of confidence in the police, while 56.2% offered such views of the legal system; 65.0% of Asians had such views of the police, while 61.9% expressed these sentiments towards the legal system. Measured by mean confidence levels, Coloureds' and Asians' preference for the police fades, but the contrast between their views and those of Africans remains. Urban Africans' mean confidence in the legal system (2.84) was considerably greater than their confidence in the police (2.50). (Rural Africans also were more confident in the legal system, but not so much (3.14 compared with 2.98).) Coloureds' mean confidence in the legal system, by contrast, was modestly greater than their confidence in the police (2.78 compared with 2.66). Meanwhile, Asians' mean confidence in the legal system was slightly lower than their confidence in the police (3.01 compared with 2.95), although this gap, unlike the others mentioned, fell within the compass of the corresponding standard errors. Id. at 163, Table 86/4; 166, Table 86/7; 171, Table 86/4; 174, Table 86/7.Google Scholar

81 “Markinor 1993 Statistics“at 20, Table 7/3; 23, Table 7/6 (Aug. 1993) (Coloureds and Asians) (separate tables for Coloureds and Asians on two identically numbered pages); id. at 20, Table 7/3; 23, Table 7/6 (June 1993) (Africans) (cited in note 57). The mean confidence levels for Asians were 2.33 for the legal system and 2.60 for the police; those for Coloureds were 2.42 for the legal system and 2.59 for the police. Asians and Coloureds were least confident in Parliament, for which Asians' mean confidence level was 2.25 and Coloureds' was 2.32. For urban African means, see note 75 supra. The differences within each group in its attitudes to different institutions all exceed the corresponding standard errors, with the exception of the difference between Asians' mean confidence levels in Parliament and the legal system. The proportion of the Coloured population that expressed a “great deal” of confidence in the police had actually risen, from 12% in 1981 and 9.3% in 1990 to 18.7% in 1993-this at a time when South African confidence in general was faltering. “Markinor 1981 Statistics” at 47 (cited in note 55); “Markinor 1990 Statistics” at 174, Table 86/7 (cited in note 56); “Markinor 1993 Statistics” at 23, Table 7/6 (Aug. 1993) (cited in note 57).Google Scholar

82 Whites were more confident in all these institutions than were any of the black groups surveyed. Whites resembled Asians and Coloureds, however, and differed from Africans, in having the greatest confidence in the police. In 1993, 85.5% of whites expressed a great deal or quite a lot of confidence in the police; 52.1% expressed such confidence in the legal system; and 45.9% expressed this measure of confidence in Parliament. “Markinor 1993 Statistics” at 19, Table 10/3; 22, Table 10/6; 23, Table 10/7 (May 1993) (cited in note 57).Google Scholar

83 When South Africa's first nonracial national elections were held, in April 1994, a majoriry of Coloureds and Asians apparently voted for the National Party. Patti Waldmeir & Michael Holman, “South African Elections: Spirit of Conciliation Sweeps Aside Letter of Vote,” Fin. 'Times (London), 7 May 1994, at 3. See also Kenneth B. Noble, “South Africa's Indians Shift Loyalties,”N.Y. Times, 22 April 1994, at A8.Google Scholar

84 Coloured respondents preferring the National Party (over half of the weighted total of all those polled) were more confident in the legal system than Coloureds with any other preference, in most cases by margins exceeding the applicable standard errors. Asian respondents preferring the National Party (about 42% of the weighted total of all Asians polled and the largest single grouping) were more confident in the legal system than those intending not to vote and those preferring the African National Congress (the next two largest groupings), again by amounts exceeding the applicable standard errors. “Markinor 1993 Statistics” at 20, Table 7/3 (Aug. 1993) (separate tables for Coloureds and Asians on identically paginated pages) (cited in note 57).Google Scholar

85 These contrasts can be seen in the mean confidence levels for the various groups. Asian supporters of the National Party have a confidence level of 2.76 for the police, a level higher than their confidence in the legal system (2.44); by contrast, the confidence of Asian supporters of the African National Congress in the police is only slightly greater than their confidence in the legal system (2.15 compared with 2.09, a difference within the reported standard errors of the survey). Id. at 20, Table 7/3; 23, Table 7/6 (Aug. 1993). For Coloured supporters of the National Party, the mean confidence level for the legal system is 2.59, lower than their level for the police (2.85). In contrast, Coloured supporters of the African National Congress have a confidence level for the legal system slightly higher than their confidence in the police (2.20 compared with 2.10, a difference within the reported standard errors of the survey). Id. (identically paginated, separate tables for Coloureds).Google Scholar

86 I have sketched what I saw as competing visions of legitimation in the shaping of a pst-apartheid South Africa in Stephen Ellmann, “Visions of Legitimation in Old and New South Africa: A Summary and Response,”16 Legal Stud. F. 193 (1992)Google Scholar

87 For examples of this difference, see tables 1 and 2; Orkin, “Politics” at 93–94 (cited in note 60). As of 1987, about 59% of the African population of South Africa above the age of 16 was rural, 14% small-town, and only 27 % metropolitan, id. at 294 n.39. Orkin, at 96, comments that “the vast metropolitan townships… set the political pace.” Attitudes of rural Africans also vary; in 1991 the mean levels of confidence in the legal system were 3.06 among rural Africans in KwaZulu, 3.08 in the Transkei, 3.38 in Lebowa, 2.76 in Gazankulu, and 3.14 in Bophuthatswana. “Markinor 1990 Statistics” at 163, Table 86/ 4 (cited in note 56). As noted earlier, however, these data are based on samples of only 100 people in each area, and so, according to Man Harris of Markinor, should be viewed “only as indications.”Google Scholar

88 E.g., the mean confidence level for the legal system among urban Zulu in 1990 was 3.05, among urban Xhosa 2.66, and among urban “Tswana/Sotho” 2.83. The gaps between each pair of groups exceed the poll's standard errors. Id. at 171, Table 86/4. Similar findings have been made in other polls. Donald L. Horowitz, A Democratic South Africa;? Constitutional Engineering in a Divided Society 58 (1991) (“Horowitz, Democratic South Afica”).Google Scholar

89 Among urban Africans the oldest people are always among those with more confidence in the legal system; in 1993, the youngest were the least confident, but that had not been true in earlier years. See “Markinor 1981 Statistics” at 46 (cited in note 55); “Markinor 1990 Statistics” at 171, Table 86/4 (cited in note 56); “Markinor 1993 Statistics” at 20, Table 7/3 (cited in note 57). (Some of the comparisons between age groups, however, fall within the data's standard errors.) From the same wurces we can compare the confidence held by men and women. Urban women are more confident in each of the three polls, although only in 1993 does this gender gap exceed the reported standard errors. Rural women in 1990, however, were less confident than their male counterparts, and this gap exceeded the reported standard errors.Google Scholar

90 Rita Estrerhuysen “Views on Aspects of the Criminal Justice System,'in J. M. Lijtter, L. B. G. Ndbandaba, & Rita Esterhuysen, Crime and Its Impact: A Study in a Black MempoLtan Area 184, 224, 225 (1990) (“KwaMashu/Umlazi Study”).Google Scholar

91 David Everatt, “A Violent Generation?” (n.d.) (“Everatt, ‘A Violent Generation?’”). Dr. Everatt writes in a forthcoming article, an excerpt of which he kidly provided to me, that “2200 respondents of all races were interviewed for up to an hour and a quarter in a face-to-face questionnaire administered in the preferred language of the respondent.” The questionnaire “went into the field in November/December 1992.” The remainder of this paragraph is drawn from data printouts provided by Dr. Everatt.Google Scholar

92 Dennis Davis, a legal scholar who relentlessly attacked the law of apartheid, has reported finding considerable faith in the Supreme Courts of South Africa in a pilot study he conducted among black South Africans in the Cape Town area. He comments: “While it is widely acknowledged that the legitimacy of the South African legal system is in crisis and has been in crisis for a long time, a surprising level of confidence still exists in some legal institutions such as the Supreme Court.” D. M. Davis, “Remaking the South African Legal Order,”18 Soc. Just. 65, 77 (1991). One other study of South Africans' attitudes toward their legal system is mentioned in an HSRC report. This 1985 report, South Afiicrm Society, at 134 (cited in note 60), characterizes whites and Africans as “differ[ing] virtually diametrically in their evaluation of the administration of justice and related matters.“The report refers to research showing that “whites had the most positive impression of South African law and Africans the most negative, with coloureds and Indians about midway between these two extremes. The same patterns emerged in respect of obeying the law and the perception of the police and the administration of justice.” Unfortunately the report does not set out the underlying data.Google Scholar

93 John Dugard cogently sets out these and other sources of the challenge to the legitimacy of South African law in Dugard, Last Years 103–11 (cited in note 1).Google Scholar

94 See Tyler, Why Obey Law at 62 (cited in note ll), observing: “It seems plausible that the strength of the influence of legitimacy on behavior will vary depending on other factors.”Google Scholar

95 Orkin, “Politics” at 85–86, 293 n.13 (cited in note 60). For other surveys producing comparable findings, see text and note at note 60.Google Scholar

96 Maxwell Nemadzivhanani, the PAC's “national organiser,” told a crowd: “Goldstone is welcome to enter Apla camps, but he should remember what happened to Piet Retief in Dingane's kraal.” (Retief was killed.) Pamela Dub, “War Talk from PAC's 'Saddam,'”Weekly Mail B Guardian, 17–23 Sept. 1993, at 6.Google Scholar

97 “Between Negotiation and Resistance: Views of Rank-and-File Party Supporters,”Info. Update, Dec. 1992, 1, at 2.Google Scholar

98 Id. at 1–2. Only a few Africans (9%), however, definitely opposed this idea. Id. at 2. The survey data came from “personal interviews” in October 1992 of 200 Asian, 1,100 African, 300 Coloured, and 400 white respondents. Elsa Thirion & Mathilda Barnardt, “Methodology,“Info. Update, Dec. 1992, at 55.Google Scholar

99 At the end of the difficult year of 1991, “still more than half [52%] of [Africans] were convinced that de Klerk was sincere in his efforts to rid the country of racial discrimination.”“Just how sincere is de Klerk in his efforts to eradicate racial discrimination?”Info. Update at 26 (Special Update Report 1991). By May 1993, however, only 6% of metropolitan Africans felt that de Klerk was leading the country “very well,” and only another 29% felt he was leading “fairly well.” Markinor, Press Release: “Political Parties/Leaders,” 15 July 1993, at 1, 5.Google Scholar

100 Markinor, Socio-political Trends 1993/11 (Nov. 1993).Google Scholar

101 Horowitz, Democratic South Afiifa 101–3 & n. 46 (cited in note 88). Horowitz also notes, however, that”Black opinion may ultimately be more equivocal than it is depicted here,”id., and later reports a study of African students, whose attitudes toward a future described as “Black hegemony” are much more positive. Id. at 109–10.Google Scholar

102 “On a South African Bill of Rights,“Info. Update, July 1991, 18, at 18–19. This survey was based on a telephone sample of 2,138 people, including about 912 Africans. “Methodology,”Info. Update, July 1991, at 30.Google Scholar

103 In this July 1992 survey, 2,000 people, including 1,100 Africans, were personally interviewed. Elsa Thirion & Ria Joubert, “Methodology,”Info. Update, Sept. 1992, a t 54. They were presented with a series of proposed social policies and for each were asked whether they would “demand” it, “like it but not demand it,”“dislike it but not resist it,” or “fight and resist it.” Lawrence Schlemmer, “Prospects for Socio-economic Conflict in South Africa: Majority Expectations, Minority Resistance,”Info. Update, Sept. 1992, 22, at 22. Only 46% of Africans said that they would “demand” that “[wlhites in civil service must be retrenched to make way for blacks, coloureds and Asians,” and only 43% said they would demand that”[clompanies [be] forced to appoint more blacks until certain goals are reached.”Id. at 27. On each of these questions, different strata of the African population ranged from below 10%“demanding” the policies to over 80%. Id. Schlemmer concludes, at 28, that African “attitudes and expectations vary strongly from issue to issue,” and characterizes African opinion as showing a ‘pragmatic’ variability.”Google Scholar

104 See Lawrence Schlemmer, “Black Workers and the Alternative: Attitudes towards Socialism,” 3 (4) Indicator SA 1,3–4 (Autumn 1986). Markinor also found strong support for private ownership among urban Africans in 1990, although almost half wanted “owners and employees together [to] run the business.”Markinor 1990 at 132–33 (cited in note 56).Google Scholar

105 Jeremy Seekings, “Visions of ‘Community’ in South Africa's Informal Township Cow” 7 (presented at the Joint Meeting of the Law & Society Association and Research Committee on the Sociology of Law, International Sociological Association, Amsterdam, June 1991) (“Seekings, ‘Visions’”). Heribert Adam, in the course of a wide-ranging analysis of the mechanisms by which South Africa's white rulers sought to retain power despite lacking legitimacy, suggests another phenomenon that might promote conservatism. As he puts it, “what Man calls the ‘dull compulsion of circumstances’” can blunt people's awareness of the possibility of alternatives to their existing situation. Adam, “Compliance” at 176 (cited in note 7). One such circumstance is sheer economic dependence, and Adam notes that for Africans this dependence is embodied in the fact that as of 1983 almost one fifth of all employed Africans worked for the state. Id. at 177–78.Google Scholar

106 Markinor 1981 at 85 (cited in note 51). Whites were considerably more interested in politics, according to this survey, while Coloureds' views resembled those of Africans, and Asians' disinterest was even more intense. Id. Tom Rikhoto, the litigant in the important pass law case, Oos-Randse Administrasieraad v. Rikhoto, 1983 (3) SA 584 (A), is an example of an African man who both considered apartheid a bad system and considered himself unpolitical. Though acutely aware of the sufferings caused by the pass law system, Mr. Rikhoto described himself as nonpolitical at the time he brought his case; in his words, “I was nothing on that time…. [I] did not know exactly for this politics or that exactly.” Interview with Mehlolo Tom Rikhoto (Rikhocso), 1 Nov. 1994, transcript at 11. This interview took place in Mr. Rikhoto's residence in a Johannesburg suburb. Interestingly, by 1990 Africans' interest in politics appeared to have risen considerably. See Maskinor 1990 at 138 (cited in note 56). In 1990, moreover, urban Africans were more likely than any other group polled to believe that they could “do a great deal” about an unjust law; 21% of urban Africans held this view, compared with just 8% of South Africans as a whole. Id. at 154. This is a remarkable indication of Africans' optimism about the prospects for change in South Africa-optimism that proved well-founded. Yet African confidence in the legal system was higher in 1990 than in 1981 (see text at notes 64–68 supra). Thus it would seem that if political disengagement was connected to the considerable degree of confidence Africans expressed in 1981, other factors were able to sustain even greater confidence in 1990.Google Scholar

107 Bill Keller, “A Surprising Silent Majority in South Africa,”N.Y. Tms Mag., 17 April 1994, at 34.Google Scholar

108 Id. at 37.Google Scholar

109 Qwelane, “Communities” at 4 (cited in note 31).Google Scholar

110 I am grateful to Howard Venable for emphasizing this issue.Google Scholar

111 Interview with Thandi Orleyn, 10 Nov. 1994, transcript at 5. Ms. Orleyn is the director of the Johannesburg office of the Legal Resources Centre, a leading public interest law organization in South Africa.Google Scholar

112 Id. Such aspects of the courtroom scene might be very important to the overall impact of exposure to the legal process. Cf. Sally Engle Merry, “Courts as Performances: Domestic Violence Hearings in a Hawai'i Family Court,” in Lazarus-Black & Hirsch, Contested States 35, 37 (cited in note 14) (emphasizing the “ritual demarcation of space, costume, and language” in the courts). Probably many Africans were also prepared to differentiate among police. Thus Tom Rikhoto distinguished between police officers who were just doing their job, and who “just want to live and the children… must eat,” and others who “you can see it's like not a person like you.”Rikhoto interview, 1 Nov. 1994, transcript at 9.Google Scholar

113 See Austin Sarat, “Studying American Legal Culture: An Assessment of Survey Evidence,”11 Law & Soc'y Rev. 427, 439 (1977).Google Scholar

114 This observation, condescending as it may sound, is not meant that way; it reflects the findings of polltakers of varying political orientations and appears to reflect a reality of public opinion throughout the underdeveloped world. See Orkin, “Politics” at 88 (cited in note 60); see also Schlemmer, 3 (4) Indicator SA at 4 (cited in note 104) (finding “very little evidence of a consistent ideological paradigm [among African workers] … as one would no doubt expect among poorly educated workers”). This reality goes a long way to explain the sometimes very high numbers of Africans who respond to public opinion polls by saying that they do not have an opinion on the matter at issue. For example, “some 40% of respondents [apparently all Africans] across the country had not heard of the issue” of economic sanctions against South Africa before being polled about it in the mid-1980s. Orkin, “Politics” at 88. Respondents' suspicion of and unfamiliarity with the process of public opinion polling can also obscure their opinions; it appears, e.g., that over 40% of rural African respondents in Orkin's study declined to answer a question concerning their political allegiance. Id. at 94.Google Scholar

115 Rikhoto interview, 1 Nov. 1994, transcript at 14–16.Google Scholar

116 See Lawrence Schlemmer, “Conflict in the New South Africa: Class, Culture and Power,“Info. Update, Dec. 1992, at 4, 5. In this survey, respondens were presented with various possible actions a new government might take and asked whether “people like you”“will demand it immediately and not be satisfied without it,”“would like it but not at once,”“would not like it,“or” will oppose it and try to prevent it.” In my description of this survey, I rely primarily not on Schlemmer's article but on the text of the survey and a detailed breakdown of the answers, apparently separately published and kindly provided to me by Ian Hirschfeld of the HSRC. I cite this material hereafter as “Conflict Survey Materials.”Google Scholar

117 Now, in 1995, there are about 10 black judges, permanent or acting, on the Supreme Coum (whose various divisions roughly correspond to the federal judiciary in the United States), but most of these have probably only been appointed since the nonracial elections of last year. Two other black Supreme Court judges have been elevated to the new Constitutional Court. South Africa's next tier of courts is presided over by magistrates; as of 1991 there were 28 black magistrates out of a total of 1014. Desiree Hansson, “Selected Statistics on the South African Criminal Justice System,” 1992 S. Afi. Crim. Just. 317, 325. The proportion of black magistrates has since increased, however, with the incorporation of the magistracies of the four putatively independent African homelands after they were formally reunited with South Africa. African traditional leaders or chiefs continue to exercise a subordinate jurisdiction within their own ethnic groups.Google Scholar

118 Of Africans sumeyed, 70.77% rated”white schools having to accept all black children who wish to attend” a demand; 69.74% said people like them would demand “free schooling for all children”; and 63.74% described “housing opportunities for poor black people in places where they choose to live, even if close to white areas,” as a demand. “Conflict Survey Materials.”Google Scholar

119 Of Africans, 61.37% viewed such appointments to “good jobs” as a demand. Id. Google Scholar

120 Of Africans, 26.52% said people like them “would not like” this policy, and another 3.16% said people like them would “oppose it and try to prevent it”! Id. On the question of appointment of blacks as magistrates and judges, 12.69% said people like them would not like it and 3.55% said people like them would oppose it and try to prevent it. Id. Google Scholar

121 Lawrence Schlemmer comments that on the issue of appointments to the judiciary “many blacks are not insistent on quick results.” Schlemmer, Info. Update, Dec. 1992, at 6 (cited in note 116). Nonetheless he ranks this issue as the 6th highest, out of 24, in his listing of issues with “conflict potential,” because the substantial African demand for it confronts sharp white resistance. Id. Google Scholar

122 A recent newspaper article reports that South Africa has “an estimated 20,000 killings each year.” Keith B. Richburg, “S. Africans Struggle to Cope with a ‘Society in Stress’; Violence Creates a Heavy Mental Health Burden,”Wnshinpn Post, 4 Sept. 1993 (available on NEXIS). In 1991, according to official statistics, there were 14,693 reports of murder. Hansson, 1992 S. Afr. Crim. Just. at 323. Most of these murders are not political; in 1991, for example, there were about 2,840 “[dleaths as a result of political conflict in South Africa.”Id. at 318. With a population estimated at 42,793,000 (see US. Bureau of the Census, Statistical Abstract of the United States: 1993 at 841, table 1374 (1993)), 20,000 annual killings in South Africa would represent a homicide rate of 46.7 per 100,000 people. The rate in the United States in 1993 was 9.5 per 100,000. Federal Bureau of Investigation, Uniform Crime Reports for the United States 1993 at 13 (1994).Google Scholar

123 According to official statistics, there were 22,765 reports of rape and attempted rape in 1991. Hansson, 1992 S. Afi. Crim. Just. at 323. According to one calculation, in 1989 South Africa had almost 65 rapes per 100,000 people; the United States rate in 1988 was 37.6 per 100,000. Howard Witt, “S. Africa Takes on Tone of Wild West,”Chiurgo Tribune, 19 March 1990 (available on NEXIS). There have been charges that the true rate in South Africa is even higher. Chris Erasmus, “Statistics Show Nation Is Armed, Dangerous,”Gannett News Service, 14 Dec. 1991 (available on NEXIS).Google Scholar

124 In 1991, 2,681 people were convicted of murder in South Africa. Of these, 2,577 were black. Of the victims, 2,510 were black. Hansson, 1992 S. Afi. Crim. Just. at 323 11.68. (Whites appear to have been more likely-at least in the eyes of the law-to commit, or to suffer, “culpable homicide,” a lesser offense. In 1991, 3,051 people were convicted of culpable homicide, including 1,642 blacks; 1,640 of the victims were black. Id. at n.69.) In the same year, 4,661 people were convicted of rape or attempted rape; 4,496 of them were black and 4,418 of the victims were black as well. Id. at n.72. The great majority of those convicted of aggravated assault and common assault, and of their victims, also appear to have been black. Id. at nn.70, 71. This pattern dissolves, not surprisingly, with the crime of housebreaking, though even here many convictions are obtained in cases where blacks were victimized; of 35,930 convictions for this offense in 1991, 15,606 involved whites' residences, 8,989 blacks' residences and 10,956 “business and state premises.”Id. at 324 11.84.Google Scholar

125 In one study, based on personal interviews with about 1,954 Africans in the Pretoria-Witwatersrand-Vereeniging (PWV) area, a heavily urban region, only 17.7% of Africans surveyed said that they felt very safe, or fairly safe, alone at night in their neighborhood. In contrast, 36.9% of Coloureds, 51.8% of Indians, and 67.6% of whites felt these levels of safety. Rita Esterhuysen (Senior Researcher), Perceptions of and Attitudes toword Crime, the Law and Components of the Criminnl Justice System: A Comparison between Groups 15 (Human Sciences Research Council, 1984) (“PWV Study”). (This study is in Afrikaans; I rely on excerpts very kindly translated for me by Dr. Lorraine Glanz.)Google Scholar

126 Markinor 1981 at 88 (cited in note 51). Only 29% of urban Africans polled saidGoogle Scholar

127 Markinor 1990 at 147 (cited in note 56).Google Scholar

128 Id. at 150. I follow Markinor 1990 at 148, in including support for a strong defense force as a law and order position; South Africa's military has played a significant domestic role.Google Scholar

129 In surveys in 1983 and 1988, only 31% and 35% of Afiicans, respectively, said they were satisfied, or very satisfied, with “security against crime.”Moller, 7 (1) Indicator SA at 44 (cited in note 20). Similarly, according to a report in 1990, “[a] recent survey by Natal University said 35% of blacks feel they have little or no protection against crime.” Rodney Pinder, “Tourist Killing Fuels Fear of Jungle Law in South Africa,” Reuter Newswire Africa (31 at. 1990) (available on WESTLAW). In another survey, conducted in January 1988 and consisting of interviews with 677 adults in KwaMashu and Umlazi, 35.3% of the respondents felt that “your local police” were “doing a good job … of maintaining law and order,” and 21.4% felt the police were doing an “average job”; 31.2% felt the police were doing a “poor job.” KwaMashu/Umlazi Study at 189, 222 (cited in note 90). In the same survey, 43.3% felt there were not enough policemen active in their area, somewhat more than felt either that the number of police was about right (25.3%), or that it was too large (16.2%). Id. at 223. In still another survey, 85.5% of Africans surveyed in the PWV region agreed or strongly agreed that “[t]he law ought to prevent crime more effectively,” while just 31.0% felt that the South African Police were doing “well” or “very well” in maintaining law and order. PWV Study at 23, 34 (cited in note 125).Google Scholar

130 In a November 1992 survey of 100 Africans in the Natal areas of Umlazi and Clermont, 60% or more of the respondents endorsed the death penalry for “shooting,”“stabbing,” murder and rape. Daniel Nina & Stavros Stavrou, Research on Perceptions of Justice: Interaction between State lustice and Popukrr Justice (Durban, April 1993) (”Nina & Stavrou, Research on Perceptions”). A more recent national poll (perhaps only of urban or metropolitan residents) similarly finds that 49% of blacks support retention of the death penalty, while 34% support abolition and 17%“abstained.” See “White South Africans Want Death Penalty Retained,”Agence France Presse, 4 April 1995 (available on LEXIS). This support for the death penalty is particularly startling because both lnkatha and the African National Congress had proposed to prohibit capital punishment in a future South Africa. See Constitutional Committee of the African National Congress, ANC Draft Bill of Rights art. 2(3) (Preliminary Rev. Version, Feb. 1993); The [Proposed] Constitution of the State of KwaZulu/Natal art. 18(a) (n.d.; released Dec. 1992). In the KwaMashus/Umlazi study (at 223), 38.5% of the respondents felt that on the whole criminal sentences were too lenient; 30.7% viewed them as about right; and only 11.0% saw them as too severe. A modest plurality of the respondents (32.3%) also felt that the local police were “on the whole … too lenient … in their actions against suspects” (emphasis in original); 28.7% felt the police treatment of suspects was “just about right, and 21.9% felt the police were on the whole “too strict.” Id. at 222. Similarly, in the P W V Study (at 231, 86.4% of Africans agreed or strongly agreed that”[tlhere would be less crime if our laws were stricter”; 40.9% believed that in general the police were too lenient with offenders, while only 18.0% saw the police as too harsh (at 35); 46.7% agreed or strongly agreed that the death penalty was “the best preventive measure against crime” (at 43); and 63.9% felt that living conditions in prisons should be made more difficult (at 61). (At the same time, however, 51.6% believed that fines should be used more often instead of imprisonment, and 56.1% also felt that community service orders should more often replace imprisonment (at 44–45); in a similar vein, 53.6% felt that the emphasis in sentencing should be on rehabilitation, rather than either on punishment or on a mix of punishment and rehabilitation (at 61). The seeming inconsistencies between these sentiments and the more punitive responses noted earlier raise some doubts about the meaning of this survey's results.)Google Scholar

131 Bill Keller, “A Short, Violent Life in South Africa,” N.Y. X m, 17 Nov. 1993, at A3. Another account reports a survey finding that “nearly 79 percent of the residents of Mamelodi saw neighbourhood vigilantes as the best solution to the problem of violent crime in the community.” John Hund & a Malebo Kotu-Rammopo, “Justice in a South African Township: The Sociology of Makgotla,” 16 Comp. B Int'l L.J. S. Ah. 179, 181 (1983), citing R. K. Mabusela, ed., Mamelodi: Progress in Community Wmk 21 (National Institute for Crime Prevention and the Rehabilitation of Offenders, 1980). Hund and Kotu-Rammopo observe (at 181) that the “main duties [of the police in this township] appear to be confined to protecting the property of the administration board, enforcing influx control laws, and allegedly offering protection services to the operators of illegal shekens or taverns with whom it is reported they act as collaborators.”Google Scholar

132 Saras Jagwanth, “Policing of the Conflict in the Greater Pietermaritzburg Area: A Perception Study,” 9 S. Afr. J. Hum. Rts. 536 (1992). This study was based on personal interviews, conducted in Zulu, with 364 people. Slightly over half were ANC supporters, and just over a fifth were affiliated with Inkatha. All those interviewed lived in two areas, one “ANC dominated,” the other of mixed politics. The researchers' efforts to interview people in a third, Inkatha-dominated area were rebuffed by the local authorities. Id. at 537–39.Google Scholar

133 For a stark account of the codicts around Pietermaritzburg, an account which essentially agrees with this perception of police bias, see Matthew Kenaidge, An Unoffinal War: Inside the Conflict in Pietennmitzburg (1990). In the Pietermaritzburg perception study, 71.2% of the people interviewed felt the police had displayed partiality; only among supporters of Inkatha-widely viewed as the beneficiaries of this partiality-did a majority (55.3%) view the police as impartial. Jagwanth, 9 S. Afi. Hum. Rts. at 546.Google Scholar

134 Id. at 550. ANC supporters were the most critical, Inkatha supporters the least. Id. Google Scholar

135 Id. at 549. Of those interviewed, 4.7% rated the police as excellent, 34.1% as good, 23.1% as average, 32.4% as poor, and 5.8% answered that they didn't know. Id The meaning of the “average” rating is ambiguous, but in the context of the other choices offered to the respondents it seems plausible to understand “average” as meaning roughly the same as “adequate.” In another question, respondents were asked to rate a number of different police agencies on a 1–5 scale, with 1 defined as “very good,“2 as “good,” 3 as “average,“4 as “poor,” and 5 as “very poor.” Of those interviewed, 47.7% rated the South African Police as below average (”4“or”5”); 59.6% so evaluated the KwaZulu Police; and 62.4% expressed this view of the “kitskonstabels” (particularly poorly trained police used in black communities). But only 30.9% took so bleak a view of the “municipal police,” and just 29.7% so evaluated the South African Defence Force or SADF (that is, the army); 41% saw the SADF as “very good” or “good.”Id. at 553. The author of this report seems hesitant about the meaning of these responses and says that the data are”used principally for comparative purposes.”Id. But the respondents' answers seem to entail not just a belief that the SADF, in particular, was less bad than other “law enforcement” agenciesertainly an understandable comparative assessment-but also, and perhaps more surprisingly, that the SADF was quite “good.”Google Scholar

136 Id. at 551. A related table suggests, however, that the respondents affirmed that they were “willing to approach the police for assistance”-not as enthusiastic a statement as that they would”readily and willingly report an incident or lay a complaint at a police station.”Id. at 552.Google Scholar

137 Id. at 553. For even more explicitly positive views of the police, expressed by African youth in a nationwide survey, see text at note 91 supra.Google Scholar

138 Tyler, Why Obey Law 239–40 n.7 (cited in note 11); see Sarat, 11 Law B Soc'y Rev. at 5 (cited in note 113).Google Scholar

139 Interview with Don Nkadimeng, 2 Nov. 1994, transcript at 17. A number of black lawyers with whom I spoke, though not all, found this “crime control” theory of legitimation unlikely. Thus Mahomed Navsa, an advocate at the Legal Resources Centre in Johannesburg who headed the LRC's constitutional litigation unit, responded that “levels of resistance would never have escalated to the point that they did” if this theory were correct. He further argued that it would have been extremely hard for people to adopt the stance of seeing the system as helpfully controlling others, since “it was such an all-pervasive system which cut across everyone's lives, if you were African, it touched you, you couldn't escape it.” Interview with Mahomed Navsa, 7 Nov. 1994, transcript at 11. Even so, the grounds for inferring that such thinking did find a place among “conservative” Africans seem to me to be persuasive.Google Scholar

140 Nina & Stavrou, Research on Percefitiotls (cited in note 130).Google Scholar

141 In addition, 59% would have taken theft to the police, and 49% would have taken “stabbing.”Id. at 9, 22–27. In contrast, Hund and Kotu-Rammopo, 16 Comp. B Int'l L.J. S. Afr. at 183 (cited in note 131) comment: “Although we have no reliable survey data on the matter, it seems clear that the vast majority of blacks living in townships do not turn to the official corn structure for help in processing their claims or for redressing their grievances.” Perhaps violent crimes are an exception to this generalization, or perhaps Hund and KotuRammopo's observation is unqualifiedly true in some areas-Tembisa, for example (see text at note 131)-and not in others.Google Scholar

142 Nina & Stavrou, Research on Perceptions 11–12. Only 27% would have reported physical assault to the police, just 6% would have reported domestic violence, and 3% would have reported witchcraft. Id. at 24, 25, 27.Google Scholar

143 Id. at 11, 22–27.Google Scholar

144 Id. at 34. The distinction in assessments of the laws enforced by the police and those enforced by the magistrate is intriguing, since presumably the laws in question were actually the same. The difference in perception, then, seems to be the result of a difference in assessment of the enforcing agency, and so we can conclude that these 100 survey respondents had a modestly more charitable view of the fairness of the courts than they did of the police. This finding echoes the distinctions drawn by Africans nationwide, as discussed earlier. See text at notes 73–75 supra.Google Scholar

145 Id. at 8. It appears that the actual question was slightly different from this para. phrase and asked “what kind of symbols represent justice,” rather than what symbols represented the “judicial system.”Id. at 21 (emphasis added).Google Scholar

146 The respondents in the 1988 KwaMashqRJmlazi Study (cited in note 90) also offered striking iliustrations of the approval that some black South Africans accord to their legal system. Of those surveyed, 62.6% agreed that “[t)he law punishes trespassers and protects lawabiding people”; only 14.4% disagreed, while 23.0% were “neutral.”Id. at 225. Similarly, 40.9% agreed that “[i]n this country nobody will be sentenced to prison without good reason”; 30.9% disagreed, while 28.2 % were neutral. And 40.0% denied that “[tlhe police arrest many innocent people,” while only 28.3% agreed with this statement, and 21.8% were neutral. Id. at 224. These respondents may have been unusually conservative in their general orientation, but these suggestions of legitimacy cannot simply be written off as aberrations, for in response to other questions some of these same respondents demonstrated that they were capable of considerable cynicism about the legal system. 42.2% agreed that “[p]olice officers do not care what happens to you after you have been arrested,” and 38.5% were neutral; only 19.3% disagreed. Only 30.8% agreed that “[m]agistrates are honest and kind-hearted” (44.8% were neutral and 24.4% disagreed); similarly, only 29.3% agreed that “[i]n the courts all people are treated justly” (43.3% were neutral and 27.4% disagreed). Id. Finally, and in the same vein, only 24.6% agreed that “[c]ourt verdicts are always just,” while 48.2% were neutral and 27.2% disagreed. Id. at 225. Even these levels of approval are startling to an outside observer, and remind us of just how conservative some African opinion is. (The large percentages expressing neutrality, however, are puzzling; were these respondents simply unsure, see id. at 205, or were they being discreet?) Perhaps more important, however, some of these respondents were evidently able to combine skepticism or reserve about the courts and the police with some measure of what appears to be respect for them. The resulting answers are not always mutually inconsistent, and, when they are, some part of the explanation may lie in respondents' misunderstanding of the questions or strategic responses to them. But it seems reasonable to infer that another part reflects actual ambivalence and to remember that legitimation can be ambivalent, and yet still exist. So, too, in another survey, 59.6% of Africans agreed or strongly agreed that “[a]II are equal in the eyes of the law,” 48.7% that “[a]II people are treated fairly by the courts,” 60.2% that “[n]o one will be sent to prison in this country without good reason,” 48.0% that “[m]agistrates are honest and compassionate,” and 55.4% that”[c]ourt judgments are always just.”PWV Study at 23, 41, 42 (cited in note 125). At the same time, 52.1% believed that “[mlany people in prison are actually not guilty of the crime for which they are being punished.”Id. at 42. Finally, in a survey of youth attitudes by the liberal agency CASE, polling found that a small fraction of young people of all races-between a tenth and a fifth-believed that people sent to prison for crimes of fraud, assault and rape were “victims of the system.” (African youth were not more likely, and with respect to fraud were actually less likely, to hold these views than were young people of other groups.) Everatt, “A Violent Generation?” at 1–2 (cited in note 91). Though this brief summary of the poll's findings does not spell the point out, it would appear that a greater fraction of young people of all races must have expressed contrary views.Google Scholar

147 One further indication that Africans in South Africa are taking legitimacy into account in their use of the police is the admittedly scanty evidence from some of these same surveys that Africans did acknowledge an obligation to obey the law. In the PWV Study at 24,47.7% of the Africans surveyed agreed or strongly agreed that “[t]he law should be obeyed at all times,” though 68.5% of the respondents also agreed or strongly agreed that “[a] person need only obey those laws that seem to be reasonable.” Of those surveyed, 67.4% disagreed or disagreed strongly with the statement that”Lilt is all right to transgress the law as long as one does not get caught,” and in the KwaMashuWmlazi Study at 225, 82.0% disagreed with a similar or identical proposition. Markinor's surveys, somewhat similarly, found that although Africans did offer a degree of approval for various illegal acts, on average they still leaned toward viewing crimes-even such arguably political acts as political assassination, fighting with police, or “claiming state benefits which you are not entitled to”-as unjustified. See Markinor 1981 at 78 (cited in note 51); Mrrrkinor 1990 at 37 (cited in note 56). One exploratory study of predominantly African offenders (described as “juveniles” though many were over 20), most of whom were serving sentences for violent crimes, found that considerable portions even of this group showed some support for fidelity to the law (and some approval of the existing legal system). For example, 59.9% disagreed with the proposition that “[ilt is all right for a person to break the law as long as he doesn't get caught,” and 30.3% agreed that”[tlhe present court system treats everybody justly.” However, 58.1% felt that “[m]any [of] the people in prison are actually not criminals but victims of the system,” and 46.1% felt that “Africans who violate the law should be punished by people's courts and not by the present criminal justice system.” Evanthe Schurink h Willem Schurink, “Addressing Crime amongst SA's Marginalised Youth,” 4 (2) Info. Update 47, at 53 (1994).'Google Scholar

148 See Tyler, Why Obey Law 94–112 (cited in note 11).Google Scholar

149 Id. at 162.Google Scholar

150 See id. at 30, 106–7, 147, 164.Google Scholar

151 Douglas Hay,”Property, Authority and the Criminal Law,” in Douglas Hay, Peter Linebaugh, John G. Rule, E. P. Thompson, & Cal Winslow, Albion's Fatal Tree: Crime and Society in Eighteenth-Ceneury Enghd 17 (1975). For a similar view of the impact of the power of Southern slaveholders, see Eugene Genovese, Roll, Jordan, Roll: The World the Slaves Mnde 40 (1976).Google Scholar

152 John Langbein, “Albion's Fatal Flaws,”Past & Present, Feb. 1983, 96, at 97.Google Scholar

153 Nor, it deserves emphasis, should we overstate the quality of the crime control results the South African legal system delivers. Africans are poorly rather than well protected against crime.Google Scholar

154 See note 117 supra.Google Scholar

155 See D. Mokgatle, “The Exclusion of Blacks from the South African Judicial System,” 3 S. Afr. J. Hum. Rts. 44, 46 (1987).Google Scholar

156 In 1991, 683,641 people appeared in court “on charges of serious offense without legal representation.” Hansson, 1992 S. Afr. Crim. Just. at 326 (cited in note 117). For commentary on this problem, provoked by a decision of South Africa's highest court declining to recognize a right to state-appointed counsel, see the articles by Dennis Davis, David McQuoid-Mason, N. C. Steytler, and J. R. Midgley & Clive Plasket, in “Focus on Rudmn,” 8 S. Afr. J. Hum. Rts. 90–125 (1992).Google Scholar

157 See N. C. Steytler, “lmplementing Language Rights in Court: The Role of the Court Interpreter,” 8 S. Afr. J. Hum. Rts. 205 (1992).Google Scholar

158 See C. R. M. Dlamini,”The Influence of Race on the Administration of Justice in South Africa,” 4 S. Afr. J. Hum. Rst. 37, 46 (1988).Google Scholar

159 With the beginning of the dismantling of apartheid, fortunately, the most egregious of these-such as the Group Areas Act or the pass laws-were repealed. Even now, however, facially neutral laws may have decidedly nonneutral impacts; laws seeking to stem “squatting” by otherwise homeless people, e.g., in practice apply almost exclusively to blacks. For an early overview of South Africa's explicitly or effectively race-based criminal legislation, see Albie Sachs, Justice in South Afica 164–74 (1973) (“Sachs, Justice in South Africa”).Google Scholar

160 For some glaring examples, see Dugard, Last Years 107–10 (cited in note 1).Google Scholar

161 See Ellmann, Time of Trouble 212–30 (cited in note 2).Google Scholar

162 See id. at 226 n.325.Google Scholar

163 One tantalizing piece of survey research suggests, moreover, that black South Africans may have been well aware of the inferior quality of the magistrates' justice. Dennis Davis found in “a pilot study of 100 black South African respondents living in Langa, Nyanga, and Cape Town conducted in 1986 … that approximately 40% of the sample considered that they could receive a fair trial in the Supreme Court. Few, if any, felt the same of the Magistrate courtcs.” Davis, 18 Soc. Just. at 77 (cited in note 92).Google Scholar

164 See note 146 above, describing results of the KwaMashflmlazi Study.Google Scholar

165 See note 146 above, describing results of the PWV Study.Google Scholar

166 Sandra Burman & Wilfried Schgd, “Creating People's Justice: Street Committees and People's Courts in a South African City,”24 Law 69 Soc'y Rev. 693, 695–96 (1990).Google Scholar

167 For a vivid case study, see id. at 721–34. “People's courts” had a radical political aura, but more conservative political groupings may also create courts that operate in disturbingly coercive ways. For an example, see the discussion of the Vukani Vulimehlo People's Party, in whose court “the judge-interrogator was … known by the nickname of 'Satan,'” in Hund & Kotu-Rammopo, 18 Cow. & Intl L.J. S. Afi. at 191–93 (cited in note 131). Similarly, Jeremy Seekings has commented on the troubling features of the relatively conservative community courts, or makgotla, of Soweto, some of which, he says “earned a reputation for arbitrary procedure, violent policing, and excessive sentences. Such practices provided ready opportunities for vengeance rather than justice. The press were filled with reports on the arbitrariness of makgotla, which seem to have become private and paramilitary rather than civil and judicial institutions, operating to advance the immediate interests of their leaders.” Seekings, “Visions” at 5 (cited in note 105). Condemnation of the people's courts is not universal. Pansy Tlakula and Tom Lediga of the Black Lawyers Association both emphasized to me that some people's courts, but not all, had had problems. Tlakula & ladiga interview, 7 Nov. 1994, transcript at 5 (cited in note 29).Google Scholar

168 See Burman & Schtirf, 24 Low B Soc'y Reu. at 730–31. Hund & Kotu-Rammopo describe a community court organized by older people in an effort to control the young, but ultimately deprived of its means of coercion by a successful lawsuit brought in the formal court system by one of the young people whom it had subjected to corporal punishment. Hund & Kotu-Rammopo, 18 Comp. & Jntl L.J. S. Afi. at 185–86. More recently Hund has cornmenred that the relations “between the youth or the 'comrades' and the 'fathers' who represent establishment values” might best be characterized as “warfare.” John Hund, “Formal Justice and Township Justice,” in Hund, ed., Law and Justice in South African 203, 214 n.12 (1988).Google Scholar

169 Nina & Stavrou, Research on Perceptions 28 (cited in note 130) found evidence both of Africans' desire for community involvement in the system of justice (67.0% believe the community should “have a more active role in the dispensation of justice”) and of Africans' dismay over the performance of the people's courts (at 8, 11–12, 15–16); see also table 3 above (respondents were twice as likely to characterize the “courts” as symbols of justice as they were to characterize “people's courts” this way). Sandra Burman offers evidence which suggests that in colonial days dissatisfaction with traditional systems of justice might similarly have led some Africans to resort to the white magistrates' courts. Sandra Burman, “Symbolic Dimensions of the Enforcement of Law,” 3 (2) Brit. J.L. & Soc'y 204, 210, 213 (1976); see Burman & Schiirf, 24 Law B Soc'y Rev. at 695. For a vivid account of vigilante justice in one township-and a reminder that some Africans preferred this form of justice, with all its flaws, to the state's institutions–see text at note 131 above.Google Scholar

170 Tom Rikhoto, for example, was on television. More generally, Mahomed Navsa observed that, especially in urban areas, “the thing was that victories were portrayed where there weren't any before. I think there was a greater Sense of being able to use the law than before.” Mr. Navsa went on to say that”I think people might have had a greater and better appreciation for the way the courts operated and greater sense that not everything is bad, but I think it must be qualified by the bigger picture,” which he saw as decidedly bleak. Navsa interview, 7 Nov. 1994, transcript at 12 (cited in note 139).Google Scholar

171 See Orleyn interview, 10 Nov. 1994, transcript at 10 (cited in note 111).Google Scholar

172 Id. at 7–8. This figure is a “rough estimate.”Google Scholar

173 Id. at 8–10.Google Scholar

174 Ms. Orleyn mentioned an estimate of 9,000 advice centres nationwide. Id. at 7.Google Scholar

175 Id. at 8, 11.Google Scholar

176 Id. at 12. Ms. Orleyn may have been focusing here on a particular recent development in connection with advice centres, but I understood her to take this view more generally as well.Google Scholar

177 On a 10-point scale, on which “10” meant complete trust, urban Africans' level of trust in whites in 1990 was 3.7, according to Markinor's polling. Markinor 1990 at 173 (cited in note 56). Apparently, their level of trust in other Africans (labeled as “blacks” in the poll) was 5.7.Google Scholar

178 These comments were typically made by lawyers or organizers (most of them black) about ordinary Africans, and it is possible that these perceptions in part reflect class and ideological gaps between elite observers and those whom they observed-although I believe the observers' suspicions make sense. Jotham Zwane, a rural activist, offered a contrasting view. He emphasized that some people would say they deferred to whites and whites' courts but that they did so because they were scared.”mhe apartheid was very tough thing to make a man to agree although he [does] not agree. To force him to agree [to] any things because you can be killed and anytime.” Interview with Jotham Zwane, 8 Nov. 1994, tape 2 transcript at 20. (This interview took place in Mr. Zwane's home in the Eastern Transvaal village of Kwa-Thandeka. For a brief account of some of the remarkable events of Mr. Zwane's life of resistance to apartheid, see Geoff Budlender, “The Responsibility of Lawyers to Challenge Injustice,”40 Clave. St. L. Rev. 475, 475–77 (1992).)Google Scholar

179 Bantu Stephen Biko, testimony at the 1976 subversion trial of nine blacks linked to the South African Students Organisation (a black consciousness group), as excerpted in Donald Woods, Biko 188 (1979). Brown v. Board of Education, 347 US. 483, 494–95 & n.11 (1954), relies in part on a similar understanding of the terrible impact of American school segregation.Google Scholar

180 Pansy Tlakula of the Black Lawyers Association thought it probable that some people might defer in part to the legal system because it was a white system and earlier appeared to see force in the idea “that in this country ordinary people still regard to a very large extent white p p l e as being supreme.” Tlakula & Lediga interview, 7 Nov. 1994, transcript at 6–7 (cited in note 29). Even more directly, Tom Nkadimeng told me that sometimes clients in his legal practice ask him if their legal problem seems too complicated, “Can you get me a white lawyer?”Nkadimeng interview, 2 Nov. 1994, transcript at 19 (cited in note 139).Google Scholar

181 Mtshotshosa interview, 7 Nov. 1994, transcript at 4 (cited in note 30).Google Scholar

182 Interview with Bethuel Maserumule and Osbme Galeni of the National Union of Metalworkers of South Africa, 10 Nov. 1994, transcript at 8. I believe the first quoted comment is from Mi. Maserumule and the second from Mr. Galeni.Google Scholar

183 This point was made to me by Mr. Maserumule. Id. Google Scholar

184 See Sarat, 11 Law & Soc'y Rev. at 449 (cited in note 113).Google Scholar

185 Jeremy Seekings emphasized to me the important, though not exclusive, role of rights discourse in Africans' challenges to white domination in South Africa.Google Scholar

186 Gail M. Gerhart, Black Power in South Africa: The Evoluabn of an Ideology 12 (1978). At 94 Gerhart emphasizes the “political and civil rights” content of the Freedom Charter.Google Scholar

187 Gerhart, id. at 16, maintains that “the history of postwar African political thought is one of a protracted process of tearing loose from liberalism as a world view.“Google Scholar

188 Kgatitme interview, 3 Nov. 1994, transcript at 2 (cited in note 40).Google Scholar

189 Id. Mr. Kgatitsoe commented that “we did not agree on that one.” Mr. Kgatitsoe also made a somewhat rights-oriented claim, but a more deferential one, when he calmed another official-who had called Mr. Kgatitsoe a “kaffir” (an abusive term for “black”) and threatened to break off negotiations-by telling him: “I believe that you are my father and … as a father I do not believe … that it would be right for you to tell me that you are going to … just … shut us out because there is no other father that I can go to…[I]f as a father you are going to treat me that way then I don't know that it is right for a father to … treat his son that way.“Id. at J. Geuff Budlender, a veteran public interest lawyer in South Africa, told me that Africans repeatedly used this appeal to whites' duties as their “fathers” to good effect.Google Scholar

190 Id. at 3–4.Google Scholar

191 Id. at 4.Google Scholar

192 Id. Google Scholar

193 Id. at 5.Google Scholar

194 Jotham Zwane remembered hearing a magistrate say, from the bench, “Be quiet you kaffir!” Zwane interview, 8 Nov. 1994, tape 2 transcript at 18 (cited in note 178).Google Scholar

195 According to a 1985 Human Sciences Research Council report, “Africans in particular but perhaps other groups too, experience the … actions of the officials as indicative of the inaccessibility, lack of sympathy, etc. of the authorities and of whites.”South African Society 89 (cited in note 60).Google Scholar

196 Nkadimeng interview, 2 Nov. 1994, transcript at 9 (cited in note 139).Google Scholar

197 Some of these points were made to me by Mr. Nkadimeng, id. at 9–10.Google Scholar

198 The efforts of anti-apartheid lawyers were not confined to political trials. Other work went on in litigation challenging emergency powers, and this work ultimately was often, though not always, unsuccessful. Still other legal challenges, however, were brought in civil cases dealing with such issues as influx control and labor law, and in some of these fields antiapartheid lawyers won important victories that might also have attracted the attention of activist African observers.Google Scholar

199 Central Statistical Service, Crimez: Prosedons and Convictions wirh Regmd to Certain Offences Table 2 (Prosecutions and Convictions According to Class, Subclass and Offence-7 years and older) (CSS Report No. 00–11-01 (1992/93)). I am grateful to Nico Steytler for providing this material to me. Of the 8,378 convictions for “law and order” offenses, 7,150 are for crimes involving arms and ammunition; many or most of these offenses may have had no political content.Google Scholar

200 For crimes of “personal relations,” evidently including most crimes of violence, the conviction rate was 74%; for property crimes, the rate was 78%. Id., Table 4 (Result of Prosecutions according to Class and Subclass).Google Scholar

201 The Human Rights Commission's figures for earlier years are less elaborate, and perhaps less complete, but still suggest conviction rates comparable to, though not as low as, those for 1990–93. In 1986, according to the Commission, there were 195 convictions out of 690 people accused (28.3%); in 1987, 229 of 792 (28.9%); in 1988, 255 of 574 (44.4%); and in 1989, 493 of 3,183 (15.5%). Human Rights Commission, Human Rights Update: Review of 1989, March 1990, at 8.Google Scholar

202 This inference is supported by a comment of Nomazizi Mtshotshosa. She told me that she is a board member of the South African Legal Defense and Education Fund, which then funded defenses in political cases, and that the conviction rate in cases which they were funding was only about 4%. Mtshotshosa interview, 7 Nov. 1994, transcript at 13 (cited in note 30). Presumably the cases that attract such funding support are, again, among the most visible “political” cases. Certain “political” prosecutions, however, seem to have been very likely to produce convictions-notably, as various data suggest, those for treason and terrorism.Google Scholar

203 I base this inference on a review of the data on political trials compiled by the Human Rights Commission in late 1989; only a limited number of the many trials mentioned in the Updates covering this period are noted as taking place in the Supreme Courts. See Human Rights Commission, 2 (4) Hum. Rts. Update: Sept-Oct 1989, Nov. 1989; id., 2 (5) Hum. Rts. Updote: Nw-Dec 1989, Jan. 1990.Google Scholar

204 Tom Lediga, in Tlakula & Lediga interview, 7 Nov. 1994, transcript at 16 (cited in note 29).Google Scholar

205 Sachs, Justice in South Africn at 202 (cited in note 159).Google Scholar

206 Bill Keller, “2 South Africans Peer into Future,”N.Y. Tims, 10 Dec. 1993, at A7.Google Scholar

207 Arthur Chaskalson retired as national director of the Legal Resources Centre in September 1993 and was succeeded by Geoff Budlender. Chaskalson, Mandela, and Budlender stand side by side in a photograph published in the LRC News (Winter-Spring 1993/94). Chaskalson has since been appointed as the President of South Africa's new Constitutional Court.Google Scholar

208 One leader of a community represented by an anti-apartheid lawyer described that lawyer as being “as close as our underpants”-a recognition not of impropriety but of the lawyer's intense engagement with the people with whom he worked.Google Scholar

209 One veteran of a long political trial told me that many people imprisoned for political offenses studied law on Robben Island. He himself, now free, is in law school. (A lawyer pointed out to me, though, that part of the reason for the Robben Islanders' choice of fields may have been that for various reasons they could not get permission to study certain other subjects.) As noted earlier, see text at note 171 supra, many who worked in advice centres as paralegals (again, probably in part because they could not work elsewhere) were also political activists. Quite aside from the veterans of political trials, a considerable number of black South Africans have chosen in the past two decades to become lawyers. This choice might be taken as a recognition of the comparative openness of law as compared with other South African institutions. But black lawyers often have sharply negative views of the system within which they work, and most may well have seen their choice to practice law as, in the words of Pansy Tlakula, a choice made “because there was nothing else.” Tlakula & Lediga interview, 7 Nov. 1994, transcript at 11 (cited in note 29).Google Scholar

210 Jotham Zwane, who struggled for years against the pass law system and against apartheid in general, finally was able to resolve his pass problems with the help of Geoff Budlender of the Legal Resources Centre. Mr. Zwane said of his lawyer that he was “powerful on his points,” and that he was “against the apartheid. That's why … he was powerful…. Geoff … had a green light … to say where to go with the apartheid.” Interview, 8 Nov. 1994, tape 2 transcript at 16 (cited in note 178).Google Scholar

211 For example, an anonymous reviewer of this article emphasized the respect blacks had for the legal work of Nelson Mandela and Oliver Tambo in the 1950s. Similarly, Yvonne Mokgoro-now the first African woman to serve on South Africa's Constitutional Courtbecame a lawyer in part as a result of the inspiration of Robert Sobukwe, a lawyer who was also a founder of the Pan Africanist Congress. After Ms. Mokgoro was arrested in a pass law raid, Sobukwe got the charge against her dismissed. “As they were walking away from the court, Mokgoro remarked to him that more men needed to be trained as lawyers and he turned to her saying 'Don't let me hear you say that again. Law might seem like a maledominated profession but women can do it and we should start with you.' “Alice Coetzee, “The 'People's Judge,'” 8 (7) Democracy in Action, 15 Dec. 1994, at 7.Google Scholar

212 In the words of Tom Lediga, “They would even call you 'comrade.” ' Tlakula & Lediga interview, 7 Nov. 1994, transcript at 17 (cited in note 29).Google Scholar

213 Finally, to the extent that these lawyers also succeeded in persuading or enabling some South African judges to render decisions protecting the victims of apartheid, they may have contributed to the degree of legitimation that the courts were earning through their handling of such litigation. Judge Richard Goldstone, who as chair of the Goldstone Commission led important and sometimes dramatic inquiries into the sources of political violence in South Africa, told me that one reason his commission-headed as it was by a sitting South African judge-was able to function was that the victories won by anti-apartheid lawyers had confmed legitimacy on the judiciary. Personal communication, 16 April 1993.Google Scholar

214 See text and note at note 114 supra. Google Scholar

215 Orkin, “Politics” at 87 (cited in note 60). Orkin also maintains that Africans' “fundamental policy orientations to economic pressures, violence, and other strategies for change are actually largely shaped by party-political allegiance” (at 81). He notes, however,”the considerable extent to which [African] respondents have not felt obliged to follow their leaders” on the sanctions issue, whether their leaders favored sanctions or opposed them (at 90–91; emphasis in original). See also Schlemmer, 3 (4) Z&m SA at 5 (cited in note 104).Google Scholar

216 One of these voices is that of Winnie Mandela, who capitalized on her popular following to regain “her position as president of the Women's League of the African National Congress,” a year after she lost this post following her notorious conviction “for her involvement in the 1988 kidnapping of four young [African] men.” Kenneth B. Noble, “Winnie Mandela Regains Post in Women's Group,”N.Y. Times, 9 Dec. 1993, at A6. Her saga continues. Appointed as a deputy minister in South Africa's first post-apartheid cabinet, she has recently been fued from that post. It is hard to believe that her dismissal will be the end of the story.Google Scholar

217 Albie Sachs, Protecting Hum Rights in a New South Africn 6 (1990).Google Scholar

218 Among the lawyers or legally trained activists who helped shape the ANC's positions or negotiate on its behalf (besides Nelson Mandela himself) were Kader Asmal, a legal scholar long in exile but by then retumed to the University of the Western Cape (and now a cabinet minister); George Bizos, a leading anti-apartheid advocate; Arthur Chaskalson, another leading public interest lawyer (now President of the Constitutional Court); Nicholas Haysom, a scholar and practitioner involved in a wide range of anti-apartheid litigation (now counsel to President Mandela): Brigitte Mabandla, trained as a lawyer while in exile (now Deputy Minister of Culture); Penuel Meduna, a lawyer who went into exile during the years of apartheid (now Deputy Minister of the Interior); Abdullah Omar, a lawyer who had represented Nelson Mandela and who only a few years earlier had been a victim of emergency powers himself (see Omar v. Minister of Law and Order, 1987 (3) SA 859 (A)) (now Minister of Justice); Matthew Phosa, another lawyer who went into exile (now Premier of the Eastern Cape province); Cyril Ramaphosa, a prominent union leader with law training (now the Chair of the Constitutional Assembly); Albie Sachs, a lawyer and scholar who suffered not only detention but also mutilation at the hands of the apartheid regime (now a judge of the Constitutional Court); and Joe Slovo, a lawyer and long-time leader of the South African Communist Party (Minister of Housing in the new government until his recent death). Even this long list leaves out other distinguished lawyers who contributed to this process.Google Scholar

219 It is worth mentioning that although the ANC took a more moderate position in the negotiations than one of its rivals, the Pan Africanist Congress, the latter group also has ties to the culture of anti-apartheid lawyering. One of its senior officials, until late in 1992, was Dikgang Moseneke, an African advocate who played an important part in the drafting of the interim constitution and in the Independent Electoral Commission that oversaw the April 1994 elections. In addition, distinguished anti-apartheid legal scholars contributed to the negotiations on behalf of the liberal Democratic Party and in other roles.Google Scholar

220 See text and notes at notes 35–39 supra. Google Scholar

221 Gaye Davis, “Warring Camps in the Biehl Trial Corridors,” Weekly Mail & Guardian, 26 Nov.-2 Dec. 1993, at 9.Google Scholar

222 Certainly lawyers who were poor storytellers or who made their clients feel that their own stories were being unjustifiably silenced would not have won applause. My sense, however, is that South African clients, even activist ones, tended to take lawyers' advice very seriously; for example, I was told more than once that accused activists who had intended to refuse to participate in their trials had been persuaded by their lawyers not to take that course. E.g., Mtshotshosa interview, 7 Nov. 1994, transcript at 12 (cited in note 30). I suspect that clients also often recognized that even relatively bleak outcomes were better than what might have ensued without a lawyer's assistance.Google Scholar

223 Howard Venable emphasized this point to me.Google Scholar

224 Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993) (“1993 Constitution”). For a more detailed analysis of this constitution, see Stephen Ellrnann, “The New South African Constitution and Ethnic Division,”26 Cohum. Hum. Rts. L. Rev. 5 (1994).Google Scholar

225 1993 Constitution 241.Google Scholar

226 Id. 236.Google Scholar

227 Until the new constitution, appointments to the Supreme Courts had been made by the government in office, albeit subject to the constraint that such appointments as a matter of practice were almost always made from the ranks of the elite of the private bar, the “senior counsel.” Though some of these appointments were padully political, it is a fact that the National Party government appointed a number of judges who proved to be decidedly unsympathetic interpreters of apartheid laws. See Ellmann, Time of Trouble 227–29 (cited in note 2). Under 104(1) of the 1993 Constitution, Supreme Court judges will now be “appointed by the President acting on the advice of the Judicial Service Commission.” The members of this commission, in turn, include presidential appointees but also individuals designated by the legal profession, by the deans of the nation's law faculties, and by the upper house of the national legislature, as well as three sitting judges. Id. 105.Google Scholar

228 Id. 7–35.Google Scholar

229 Id. 98. The system of appointments to this Court was a matter of great controversy in the final stages of constitutional negotiations. The system on which the government and the ANC had agreed would have placed these appointments largely under political, and in particular presidential, control; as a result of opposition from the Democratic Party (and perhaps from others), the system ultimately agreed on gives the sitting Chief Justice and the Judicial Service Commission, among others, some capacity to constrain the president's selections. Id. 99.Google Scholar

230 Id. 71, 74.Google Scholar

231 For another striking indication of the new leaders' adoption of the old legal system, consider the example of Abdullah Omar. Omar, a former political prisoner (see note 218 supra), is now South Africa's Minister of Justice. In 1990, he commented that when antiapartheid lawyers go to court “[i]t is not a question of using South African laws. It is a question of defending people against the laws…. But you must go to court to fight injustice even though the laws are weighted against you.”“What Does Mandela Want?” Hum. Rts., Fall/Winter 1990, at 31, 46 (“Interview with Abdullah Omar by Vicki Quade”). Late in 1994, he told a forum that the “South African court system did not require a major review although representation needed to be addressed.”“South African Court System Does Not Require Major Review,” This Week in South Afnca: News Highlights from the South African Media (S. Afr. Consulate Gen., New York, N.Y.), 8–14 Nov. 1994, at 4. (The quoted words are from This Week in South Africa and not, directly, from Minister Omar.)Google Scholar

232 See Davis, 18 Soc. Just. at 70, 78 (cited in note 92).Google Scholar

233 See Arthur Chaskalson, “The LRC in the Future,” in Legal Resources Trust/Legal Resources Centre, Report for the Year Ended 31 March 1993 at 10, 12–14.Google Scholar

234 David Smuts, the founder of Namibia's Legal Assistance Centre, a public interest law group that began operations before independence and has continued them since, has said that he thinks that his Centre's “focussing on those kinds of [human rights] issues at that time [before independence], and empowering people in a way to actually understand what was going on in human rights cases, and to realty get them informed and to try to provide redress” was “a very important achievement for the Centre, and in basically helping further the whole idea of the creation of a human rights culture.” Interview with David Smuts by Jonathan Klaaren, May 1991, at 49. For the suggestion that the new Namibian constitution may, however, rely too much on judicial protection of rights against the state, see Nico Steytler, “The Judicialization of Namibian Politics,” 9 S. Afr. J. Hum. Rts. 477 (1993).CrossRefGoogle Scholar

235 See Ellmann, 26 Colum. Hum. Rts. L. Rev. at 34–40 (cited in note 224).Google Scholar

236 See Matthew Chaskalson, “The Problem with Property: Thoughts on the Constitutional Protection of Property in the United States and the Commonwealth,” 9 S. Afr. J. Hum. Rts. 388, 408–11 (1993).Google Scholar

237 See Patricia J. Williams, The Alchemy of Race and Rights: Diary of a Law Professor 146–65 (1991); Kimberle Williams Crenshaw, “Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,“101 Haru. L. Rev. 1331, 1356–69, 1381–87 (1988); Richard Delgado,”The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?“22 Haw. C.R.X.L. L. Rev. 301, 303–12 (1987).Google Scholar