Law, Order and Liberty

8/4/2019 Law, Order and Liberty

1/18


2/18

iii

Law, Order and Liberty

Essays in Honour of Tony Mathews

Edited by

Marita Carnelley and Shannon Hoctor

Assisted by Tarryn Winchester


3/18

iv

Published in 2011 by University of KwaZulu-Natal Press

Private Bag X01

Scottsville, 3201

South Africa

Email: [email protected]

Website: www.ukznpress.co.za

2011 University of KwaZulu-Natal

All rights reserved. No part of this publication may be reproduced or transmitted in any

form or by any means, electronic or mechanical, including photocopying, recording, or

any information storage and retrieval system, without prior permission in writing from

the publishers.

ISBN: 978-1-86914-214-8

Editor: Ria de Kock

Proofreader: Lisa Henman

Cover design: Flying Ant Designs

Printed and bound by Interpak Books, Pietermaritzburg


4/18

v

Contents

Preface viiList of publications by Tony Mathews ix

PERSONAL TRIBUTES 1

1 Tony Mathews and criticism of the judiciary 3

John Dugard

2 The Dutch uncle 11

Marinus Wiechers

3 Policing the conflict in South Africa: Professor Anthony

Mathews and the Pietermaritzburg conference of June 1991 15Avrom Sherr

4 My father, Tony Mathews 17

Catherine Mathews

LEGAL ESSAYS 21

5 Securing the rule of law 23

Hugh Corder

6 Tony Mathews and the rule of law 43

Dennis Davis

7 The rule of law and the principle of legality in South

African administrative law today 55

Cora Hoexter

8 Playing catch-up: The South African Constitution,

administrative law and jurisdictional facts 75

Clive Plasket


5/18

vi

9 State privilege in a democratic South Africa 101

P.J. Schwikkard

10 The darker reaches of government: An environmental

perspective 121

Michael Kidd

11 Some tentative thoughts on the counter-majoritarian

dilemma in the South African context: A constitutional

and political conundrum in the process of judicial review 139

George Devenish

12 Challenges in increasing access to justice in the next decade 169

David McQuoid-Mason

13 Children locked up: Towards detention as a measure of

last resort 207

Ann Skelton

14 Re-imagining justice from the bottom-up 237

Jan Froestad andClifford Shearing

CENTRE FOR CRIMINAL JUSTICE 251

15 The legacy of Professor Mathews and the challenges of

applied legal research in the twenty-first century 253

Winnie Kubayi


6/18

vii

Preface

Tony Mathews was born in Pretoria in 1930, grew up in Louis Trichardtand studied in Natal. After obtaining his BA he practiced as an attorney for

some years.

In 1959, at the age of 29, he took his LLB with distinction at the

University of Natal after which he joined his alma mater as a lecturer. In

1961 he was promoted to senior lecturer and a few years later, in 1965, to

Professor and Head of the Department at the Durban campus. During his

years at the Durban campus he was Dean of the Faculty of Law for 12

years. In 1983 he relocated to the Pietermaritzburg campus of the same

university and was appointed to the James Scott Wylie Chair of Law.

In 1971 he became the first recipient of a PhD in law at the University

of Natal for his treatise Law, Order and Liberty in South Africa. The document

was published in 1972 and widely praised. In 1986 it was republished in

radically revised form under the title Freedom, State Security and the Rule of

Law and again hailed as a work of superb, rigorous and meticulous

scholarship. He had established a reputation as one of the countrys leading

legal academics. He has written with verve, courage and imagination on

criminal law, the law of property and in particular constitutional law. Apart

from the two books mentioned, Mathews authored a book on access to

information, a comparative study called The Darker Reaches of Government,

along with a wealth of articles in academic journals(a list is included in

this book).

In addition to his writings, Tony Mathews held visiting positions at the

Universities of Harvard and Cambridge and the Florida College of Law.

He was a member of the editorial board of the South African Journal on

Human Rightsfrom its inception and played a significant role in the South

African Institute of Race Relations (national executive: 19738 and vice-

chair: 1980); Lawyers for Human Rights; as well as the Society of University

Teachers of Law (of which he was President from 19745).


7/18

viii

Professor Ellison Kahn, at the 80th Anniversary Dinner of the School

of Law in Pietermaritzburg in 1990, remarked: It is not only Tonys great

height but also his commanding intellect that makes me feel that he is

entitled to look down on me when I stand next to him.

As the contributions in this long-overdue tribute make abundantly clear,

Tony Mathews principled and powerful critique of the apartheid laws that

negated human rights and eviscerated the legitimacy of the South African

legal system, remains as a monument to both his moral courage and his

legal brilliance. His compelling defence of the rule of law and his un-

remitting championing of the cause of human rights inspired a generation

of law students and practitioners in the darkest days of apartheid. His

untimely death just prior to the inception of constitutional democracy in

South Africa deprived this nation of one of its most incisive legal minds.

Yet, as the essays which follow so clearly demonstrate, he has left a significant

legacy. We hope that this tribute will help to remind us of the debt we owe

to Tony Mathews, and to rouse us to spiritedly defend the values that he

upheld with such clarity and conviction.

Marita Carnelley and Shannon Hoctor


8/18

xiv


9/18

Tony Mathews and criticism of the judiciary 1

PERSONAL TRIBUTES


10/18

2 Personal Tributes


11/18


3

1

Tony Mathews and criticism of the judiciary

John Dugard

Professor of Law, Centre for Human Rights, University of Pretoria

It is a privilege to be able to write on the legacy of Tony Mathews. I first

met Tony in 1961 when we were jointly responsible for the teaching of

Roman Law II at the University of Natal, he in Pietermaritzburg and I in

Durban. At that time our discussions were primarily devoted to Roman

Law, a subject that we both cherished; but we did reflect on the direction

that South African law was taking. In 1963 I left Natal and spent two years

studying at the University of Cambridge before returning to the University

of the Witwatersrand (Wits) in 1965. During my stay in Cambridge much

had happened, the security laws had been tightened, the Rivonia trial had

taken place, and the judiciary had spoken on the interpretation of the security

laws. I soon discovered that Roman Law was no longer Tonys primary

interest. He had other concerns.

It is strange to recall that fifty years ago criticism of the judiciary was

virtually unknown in South Africa. By criticism, I mean real criticism,

criticism that questions the integrity and impartiality of the judiciary. Of

course, it was always possible for legal scholars to criticise a judges

interpretation of a statute, application of the common law or findings of

fact in a polite, respectful manner that questioned his (for at that time therewere no women judges) knowledge of the law, legal reasoning or fact-

finding. Even so, such criticism was largely confined to the safe fields of

private law and commercial law and was generally laced with expressions

BA LLB (Stell) LLB (Cantab) Diploma in International Law (Cantab) LLD (Cantab).


12/18

4 Personal Tributes

of respect for the learned judge who had erred. Questioning the role of

the judge in society was unacceptable as judges were seen as neutral declarers

of the law and finders of the facts. No one dared ask whether the judges,

by their decisions, lent credibility to the apartheid legal order.

Respect for the independence and impartiality of the judiciary was an

essential component of the apartheid state. While the government was

prepared to accept that its exercise in social engineering, that resulted in

inequality and repression, was controversial and perhaps at odds with South

African legal traditions, it was determined to foster the belief that the

judiciary was beyond reproach and could be relied on to administer justice

fairly and impartially. Questioning the role of the judge in apartheid society

was taboo. Legal scholars, editors and publishers knew this.

The turning point came in 1966 with the publication of an article in

the South African Law Journal,1 (SALJ ) titled The Permanence of the

Temporary: An examination of the 90- and 180-day Detention Laws by

Tony Mathews and Ronald Albino (Professor of Psychology at the

University of Natal and a friend of Tony). In this article the authors

examined the manner in which judges had interpreted the 90-day2 and

180-day3 detention laws with little regard for the serious mental and physical

consequences of in-depth interrogation in solitary confinement authorisedby these laws.4 The theme running through the article was that judges had

deliberately chosen the interpretation most favourable to the government,

and in so doing had ignored the fundamental principles of the common

law relating to individual liberty. There was no suggestion that the learned

judges, particularly members of the Appellate Division, had merely erred.5

On the contrary, judges were accused of intentionally endorsing the security

laws in their harshest form.6 Both the partiality and the integrity of the

judges were put in question.

The article appeared in the SALJedited by two of South Africas most

prominent academic lawyers, H.R. (Bobby) Hahlo and Ellison Kahn. The

decision to publish was theirs alone as in those days the censorship

inherent in the refereeing or reviewing of law journal articles by anonymous

reviewers was unknown.7 Hahlo and Kahn were politically neutral and

had previously shown the greatest respect for the judiciary in their editorial

policy. Their decision to publish was not an easy one as they were fully

aware of the likely consequences. But to their credit, principle prevailed.

Subject to some changes, discussed with the authors, they agreed to publish.8


13/18


Other unsung heroes in the decision to publish the Mathews and Albino

article9 were Douglas Duncan and George Lawrence of Juta, the publishers

of the SALJ.Hahlo and Kahn consulted their publishers and warned them

that there might be serious consequences. Unperturbed, Duncan and

Lawrence agreed that publication should not be withheld. The consequences

for Juta were indeed serious. I have been reliably informed that on the

advice of Chief Justice L.C. Steyn, Juta was denied the contract for the

publication of the South African consolidated statutes. Instead the contract

went to Butterworths, which throughout the apartheid era was careful not

to publish legal materials critical of the governing regime.10 Juta was

undeterred by this action or by the further less than subtle threats by the

Department of Justice to restrict its purchase of legal materials published

by Juta. On the contrary, it allowed the editors of the SALJa free hand in

their publishing policy and soon afterwards published Tony Mathews Law,

Order and Liberty in South Africa(1971).11

The article by Mathews and Albino12 had been carefully written and

more carefully edited. It violated no law and judges rightly believed that it

did not constitute contempt of court as that concept was understood

before the Appellate Divisions decision in S v Van Niekerk.13 Consequently

the response of the judiciary was political. In 1967, at a dinner sponsoredby the Law Faculty of the University of South Africa (UNISA), Chief

Justice L.C. Steyn expressed regret at the intemperate, derogatory language 14

of the courts critics and pleaded for a neutral approach to the judicial

function.15

Tony Mathews article16 heralded a new relationship between academics

and the bench. It encouraged academics to examine judicial decisions on

the interpretation of the security laws critically and with new vigour; and it

encouraged judges to plan new strategies to curb criticism of the judiciary.

Legislation was out of the question but an expanded concept of contempt

of court was not. Academics, and the editors of the SALJ, were compelled

to consider every word carefully when it came to criticising the judiciary in

the field of the security laws. Particularly close attention was paid to

Mathews Law, Order and Liberty in South Africa, which appeared in 1971.17

But this carefully written scholarly work, however devastating it might be

in substance, could not be faulted in law.

The mood of the judiciary was evident in the response of Chief Justice

L.C. Steyn to my inaugural lecture of 1971,18 in which I explained pro-


14/18

6 Personal Tributes

executive decisions in the field of race and security in terms of an inarticulate

premise based on prevailing white social prejudices.

At a Law Teachers Conference at Buffelspoort, in the Magaliesberg,

Chief Justice L.C. Steyn used the opportunity, as guest speaker, to say that

I (although not mentioned by name) had narrowly missed prosecution for

contempt of court because I had argued that judges, in their pro-executive

interpretation of the race and security laws, had been guided by an

inarticulate premise, and not by intentional bias. In short, had I said that

judges had intentionally, rather than negligently, displayed partiality in their

decision, I would have been prosecuted.

Barend van Niekerk was not so fortunate. Although Barends first

language was not English, he loved the richness and grandeur of the

language. He was a flamboyant writer and speaker who preferred bold and

colourful language rather than the constrained and careful language of the

lawyer. At Wits he was protected by his friend Ellison Kahn,19 who ensured

that his intemperate language was excised from what he wrote in the SALJ.

Consequently, he escaped conviction on a charge of contempt of court for

suggesting racial bias in the imposition of the death penalty in 1970.20

Without Ellison Kahn to protect Van Niekerk against his own choice of

words, he was less fortunate. In 1972, at a public protest meeting, in theDurban City Hall, against the implementation of the detention-without-

trial laws, he castigated lawyers and judges for their failure to condemn the

Terrorism Act (which allowed indefinite detention without trial)21 and called

upon judges to stand up more dynamically in the defence of the hallowed

principles of the rule of law22 and kill23 the Terrorism Act24 by refusing

to admit evidence procured under those detention provisions.25 For this

speech Van Niekerk was charged with contempt of court for scandalising

or insulting the courts and for seeking to prejudice the outcome of cases

in which the evidence of detainees was in issue.26 He was convicted by

both the Durban and Coast Local Division and the Appellate Division

of contempt of court on the ground that his call to judges to deny

creditworthiness to the evidence of detainees tended to prejudice the

administration of justice in proceedings before the courts.27

Not all judges responded to the 1966 article by Mathews and Albino

and the legal proceedings against Van Niekerk in the same way as L.C.

Steyn, Ogilvie Thomson CJ (who heard the Van Niekerk appeal) and other

executive-minded judges. For some judges these matters constituted a wake-


15/18


up call, a call for them to reconsider their role as judges. This did not result

in resignation but in a quiet determination to interpret race and security

laws in accordance with the common law values of equality and liberty,

rather than the interests of the apartheid state. This gentle judicial

revolution was most apparent in Natal on the part of judges such as John

Milne, David Friedman, John Didcott and Andrew Wilson. Whether the

close proximity of these judges to Mathews and Van Niekerk in Durban,

and the respect that was shown for these academics in Durban, had anything

to do with this is not known.28

By the early 1980s the role of the judge in the apartheid state had

become a matter of public debate. In 1983 Raymond Wacks, who had

succeeded to Barend van Niekerks chair at the University of Natal, delivered

an inaugural address calling upon judges who were morally opposed to the

repressive South African legal system to resign.29 He dismissed the Mathews-

Dugard argument that progressive judges might achieve some measure of

justice in an unjust legal order by exercising their judicial choice in the

interpretation of law and fact, in favour of equality and liberty. Calls for

judicial activism on the part of the liberal judge by Mathews and Dugard

were rejected as futile. Only resignation by such judges would have any

effect. Both Mathews and I responded to this lecture by reiterating theposition we had advanced for many years, that the liberal or progressive

judge could do much to achieve justice from within the system. 30

There had been a growing toleration of public discussion of the role

of the judiciary between 1972 and 1984. Although Wacks inaugural lecture

might have been construed as defeating or obstructing the course of justice

the test that provided the basis for Van Niekerks conviction in 1972

there was no suggestion of prosecution. But again, credit went to Ellison

Kahn for agreeing to publish the lecture in the SALJ.

Wacks inaugural lecture had the opposite effect to that intended. No

judge resigned. Instead judges appeared now to openly endorse the

philosophy expounded by Mathews and Dugard and rejected Wacks. I

was told by many judges (some of whom had previously been critical of

my views) that of course, you are right a judge can effectively advance

justice from within the system; resignation would simply remove the

opportunity for decent decisions by moral judges. The new judicial mood

was reflected in a number of progressive decisions interpreting the

emergency laws in the mid-1980s. It was also evidenced by a new willingness


16/18

8 Personal Tributes

on the part of judges to discuss apartheid critically and to consider proposals

for a new legal order. The Centre for Applied Legal Studies special-

invitation, off-the-record meetings at Mount Grace in the Magaliesberg,

attracted a growing number of judges. A prediction, by a supportive judge,

that no more than four or five judges would accept an invitation to these

meetings proved to be completely wrong. Judges welcomed invitations to

these meetings and between 1983 and 1993 over fifty judges attended the

Mount Grace meetings and engaged in vigorous and challenging debates

with black and white activist lawyers about the future of the South African

legal order. In short, Wacks inaugural lecture succeeded in generating a

new awareness on the part of judges of their role in society and the manner

in which they could contribute to a better legal order.

All these developments that resulted in a new understanding of the

judicial role and the need for scrutiny of judicial behaviour can be traced

back to Mathews and Albinos article on the Permanence of the

Temporary.31 It set in motion a process that culminated in the Constitution

of the Republic of South Africa, 1996, with a Bill of Rights32 and

recognition of the right of judicial review.33

Today the values that Mathews espoused and advocated are enshrined

in the 1996 Constitution. The treatment of detainees that led to ThePermanence of the Temporary34 is prohibited by the Bill of Rights,35 and

the restraints imposed by Van Niekerk36

are no longer good law. In the

brief period of South Africas democracy, judges have performed well.

But The Permanence of the Temporary,37 written at the height of apartheid

madness, is a constant reminder to judges that they have hard choices to

make in their interpretation of the law and that their loyalty is to the

Constitution and not to their political masters. Mathews article is also a

reminder to academic lawyers that it is their responsibility to judge the

judges. This is the legacy of Tony Mathews.

NOTES

1. Mathews, A.S. and Albino, R.C. The Permanence of the Temporary: An

examination of the 90- and 180-day Detention Laws (1966) 83 SALJ16.

2. Section 17 of the General Law Amendment Act 37 of 1963.


17/18


3. Section 215bisof the Criminal Procedure Act 56 of 1955, inserted by s 7 of

the Criminal Procedure Amendment Act 96 of 1965.

4. Mathews and Albino op cit note 1 at 246 and 312.

5. Op cit at 3743.

6. Ibid.

7. The potential for censorship under the system of refereeing of scholarly

publications has yet to be explored. There can be no doubt, however, that

anonymous reviewers do sometimes impose their views on authors. Recently

I read a review written by a prominent progressive advocate who took

exception to harsh criticism of Israel (not, let me add, by the present author)and advised that the strong language used by the author had no place in an

academic contribution. One wonders whether reviewers realise that their

anonymous comments may either indirectly or directly result in censorship.

8. Mathews and Albino op cit note 1.

9. Ibid.

10. Butterworths was not the only South African publisher to pursue a policy of

caution in respect of legal writings. MyHuman Rights and the South African

Legal Order(1978) was published by Princeton University Press but distributed

by its agent in South Africa, Oxford University Press (OUP). The manager

of OUP in South Africa was alarmed at the prospect of distributing my

book when he discovered that Princeton University Press had unwiselyincluded an innocuous recommendation by Albie Sachs, a person banned

under the Internal Security Act 44 of 1950, on the dust cover. He referred

the book to the government for approval which, as expected, was refused.

Several months later OUP agreed to distribute with the dust cover removed

and the blurb on the paperback blackened out. But never was there such an

unenthusiastic distribution of a legal treatise.

11. Mathews, A.S. Law, Order and Liberty in South Africa (1971).

12. Op cit note 1.

13. 1972 (3) SA 711 (A).

14. Chief Justice L.C. Steyn Regsbank en Regsfakulteit (1967) 30 THRHR105.

15. Ibid.


17. Op cit note 11.

18. Dugard, J. The judicial process, positivism and civil liberty (1971) 88 SALJ

181.

19. Kahn and Van Niekerk were totally different personalities, both in outlook

and in temperament. Nevertheless, for reasons I could not understand, they

were close friends and greatly respected each other.


18/18

10 Personal Tributes

20. Van Niekerk, B. Hanged by the neck until you are dead (1969) 86 SALJ

457; (1970) 87 SALJ60. The legal proceedings and the ensuing contempt of

court case are reported in S v Van Niekerk 1970 (3) SA 655 (T) and in

Rhadamanthus Contempt of court? The trial of Barend van Niekerk 1970

Acta Juridica77.

21. Act 83 of 1967 s 6.

22. S v Van Niekerk 1972 (3) SA 711 (A) at 719.

23. Supra note 22 at 722.

24. Act 83 of 1967.

25. Supra note 22 at 722.26. Supra note 22.

27. See S v Van Niekerk 1972 (3) SA 711 (A) at 722 and 726. See also Dugard, J.

Judges, academics and unjust laws: The Van Niekerk contempt case(1972)

89 SALJ271 and Dugard, J. Human Rights and the South African Legal Order

(1978) 294.

28. Barend van Niekerk and John Milne (later Judge President of the Natal

Provincial Division) became close friends as a result of their common

opposition to the proposal to destroy the Durban Railway Station.

29. Wacks, R. Judges and injustice (1984) 101 SALJ266.

30. Mathews, A.S. Should they quit? Sunday Tribune, 22 May 1983; Dugard, J.

Should judges resign? A reply to Professor Wacks (1984) 101 SALJ286.


32. Constitution of the Republic of South Africa, 1996, ch 2.

33. Constitution s 33.


35. Op cit note 33.

36. Supra note 22.


Documents

Law, Order and Liberty