In a Time of Trouble: Law and Liberty in South Africa's State of Emergency. By Stephen Ellmann. Oxford: Clarendon Press. 1992. Pp. xi, 283. $59.
Why was it no worse? That is the central question asked by Stephen Ellmann(1) in his thoughtful analysis of the record of the Appellate Division(2) -- South Africa's highest court -- under the nationwide state of emergency between 1985 and 1990, which we now know to have been the dying convulsion of white minority rule and apartheid.
Ellmann's study spans the tenure of office of two chief justices: Pieter Rabie, who vacated office in 1989, and Michael Corbett, who is still chief justice. Ellmann's study of this period begins with an analysis of the composition of the Appellate Division during Rabie's tenure, while hearing emergency cases (pp. 57-67). The Appellate Division sits not en banc but in panels. Civil appeals -- all the cases forming the main focus of Ellmann's study are civil appeals -- are ordinarily heard by a panel of five, chosen from a membership that varied in size across the high teens during the relevant period. Ellmann shows that the panels selected to hear emergency cases under Rabie's chief justiceship were dominated by merely five judges -- a group that included Rabie himself (pp. 61-65). This group Ellmann calls the "emergency team" (p. 64). Ellmann notes that the emergency team commanded a majority of votes in every emergency case decided under Rabie and wrote all the principal judgments. When a nonmember of the team sat on an emergency case and dissented, he never again sat on an emergency case during Rabie's tenure (pp. 64-65). Ellmann's study of the performance of the Rabie court is largely a study of the performance of the emergency team.
Rabie's retirement spelled the demise of the emergency team. Under Corbett, panels to decide emergency cases were drawn from the Appellate Division as a whole (pp. 159-60). The result was a distinctly different jurisprudence.
Three judgments, as Ellmann shows, typify the work of Rabie's emergency team (pp. 71-114). The first is Minister of Law & Order v. Dempsey,(3) in which habeas corpus was sought to obtain the release of a nun detained under the emergency regulations for attempting forcibly to restrain a policeman who, in the course of dispersing a funeral gathering, was assaulting one of the mourners. South African law had long accepted that every invasion of personal liberty is prima facie unlawful and calls for justification and, consequently, that the burden of justifying a detention rests on the detainer. Despite that, the court ruled that the burden of proving that the detainer had abused his discretion -- a discretion the proper exercise of which was essential to the validity of the detention -- lay on the applicant for habeas corpus.(4)
The second judgment is Omar v. Minister of Law & Order.(5) South African law contains authority for a doctrine conferring special protection on fundamental rights against invasion by delegated legislation. The doctrine generates a rule that vitiates any exercise of a delegated legislative competence if it destroys a fundamental right, unless the destruction is specifically envisaged and authorized by the empowering provision.(6) Despite that, in Omar the Appellate Division upheld regulations, enacted under general emergency powers and without specific authority, that deprived emergency detainees of their right of access to counsel and their right to be heard before a decision to prolong the detention. Both of these rights had often, and in various contexts, been characterized as fundamental.
The third judgment is Staatspresident v. United Democratic Front,(7) which departed from precedent to interpret the emergency legislation as ousting the jurisdiction of the courts to review emergency regulations for vagueness. The effect was to insulate regulations profoundly invasive of basic liberties from judicial review.
After a rigorous analysis of these three judgments, Ellmann concludes that the Rabie court "responded to human rights issues in ways that fell painfully short of carefully reasoned adjudication: with ill-explained doctrinal interpretation or development, with abrupt or even deaf responses to opposing arguments, and on occasion with startling recasting of existing doctrine" (p. 113). But against these judgments and their ilk -- which were responsible for the reputation for deference to the security forces that the Rabie court earned during the emergency -- Ellmann sets other features of the record of the court. One is the court's punctilious insistence, admittedly largely at the level of dictum, on preserving the nominal jurisdiction of the court to review emergency action (pp. 90-91, 116). Another is the effort of the Rabie court, made in the teeth of hostile emergency regulations, to preserve the rights of emergency detainees to testify in court in support of applications for relief from the authorities (pp. 120-28). Both features entailed a departure from existing doctrine in order to protect the subjects of emergency rule.
The less-than-monolithic character of the record of the Rabie court drives Ellmann to conclude that, although the court accepted the genuineness of the emergency, trusted the good faith of the state and its senior officials, and had a sympathetic attitude toward the burdens carried by law enforcement officers (p. 131), it genuinely disapproved of abuse and remained committed to preserving both a legal order and its own institutional role (p. 135).
Even given these qualifications to the record of Rabie's emergency team, however, the Corbett court's record is palpably better. The Corbett court was willing to strike down restrictions imposed on an emergency detainee's freedom of speech, movement, and association as a condition of his release,(8) to set aside a press censorship order,(9) to uphold habeas corpus,(10) and to overrule Dempsey.(11) Perhaps more significantly, the court took important steps to shift the burden of justifying a detention back onto the authorities(12) and substantially to widen the class of administrative decisions that cannot be taken without a prior hearing.(13) But the Corbett court was unwilling to overrule United Democratic Front,(14) and it did not go as far in restoring the authorities' burden of justifying a detention as principle required.(15) Generally, Ellmann detects a "reluctance to alter too visibly or too quickly the work of the Rabie court" (p. 157). Fidelity to precedent, says Ellmann, retarded the flowering under Corbett of human rights claims (p. 158). Despite that, Ellmann concludes that the Corbett court worked, "not a velvet revolution, but surely a velvet reform" (p. 141).
All of which propels Ellmann to his central question: Why was it not all so much worse (p. 163)? Why was the Rabie court not unremittingly hostile to human rights, and what was it about South African legal culture that left room for the Corbett court at all? What kept some legal protection for human rights alive during the dismal days of emergency rule? Why was the performance of the Appellate Division so much better than that of the German courts under Nazi rule? Why did it never degenerate, as it has under other autocratic regimes, into "justice by phone," with courts taking instructions directly from the executive (p. 171 & n.45)?
Ellmann's answer is that despite the pervasive injustice of apartheid and the routine resort to extralegal methods in its defense, South African whites continued, for a mixture of admirable and less-than-admirable reasons, to value and adhere to law. Ellmann identifies three reasons for...