The relentless pursuit of a mirage

By Raymond Wacks Emeritus Professor of Law and Legal Theory

I am driving along a well-remembered highway in Randburg. It is 2005 – the last time I visited South Africa (where I was born and, as they say, bred). Randburg is an anonymous conurbation on the outskirts of Johannesburg. As a student, I had a holiday job here as a cashier in a supermarket.

But is this really Randburg? Formerly a whites-only area, I see only black faces. My supermarket has disappeared. The shopping mall is unrecognisable. I must have taken a wrong turn. Peering at the road sign, I am reassured. This is indeed Hendrik Verwoerd Drive.

Former Prime Minister Hendrik Verwoerd? In post-apartheid South Africa? Surely this architect of evil cannot still be celebrated 15 years after the demise of what he called ‘separate development’? While many towns and public places have been accorded new (or pre-existing) African names, several roads have been reborn to conform to the new ideology. Nelson Mandela features prominently, of course, but there are also streets dedicated to the memory of Che Guevara, Joe Slovo, and other revolutionary heroes.

Perhaps, I thought, policy had simply failed to catch up with principle. Nevertheless, it struck me as astonishing that Verwoerd should continue to be venerated. It was he who famously declared that his government’s role was ‘the preservation of the white man and his state’. Under his premiership, from 1958 until his assassination in 1966, apartheid was not only consolidated, but clothed in philosophical, cultural, and theological validation that drew on the seductive power of Afrikaner nationalism. He had, in fact, presided over the country’s break with Britain and the establishment of a republic. And, under his steely, cerebral leadership, the African National Congress was banned, and Nelson Mandela was sentenced to life imprisonment.

WHAT IS ‘APARTHEID’?

Apartheid, it is frequently forgotten – or conveniently overlooked – was not merely racial segregation. It was an elaborate, intricate project, sustained by a doctrinaire philosophy applied by an authoritarian regime buttressed by draconian legislation. It relied on an unaccountable security force with sweeping powers, a largely enthusiastic legislature and a mostly pliant judiciary. The legal system was the creation of a white minority; the political system disenfranchised every ‘non-white’ person, and the law discriminated against them in almost every facet of social and economic life: employment, land, housing, education, sex and freedom of movement.

Deaths in detention and torture were systemic. ‘He slipped in the shower’ or ‘he jumped from the interrogation room window’ were the stock explanations offered by the security branch. Surveillance, intimidation, and police brutality were routine. Apartheid South Africa was the archetypal modern police state. The Broederbond, a secret, Calvinist, all-male society fostered Afrikaner interests. Jan Smuts described it as a ‘dangerous, cunning, political fascist organisation’.

The neo-Nazi nature of this totalitarian order was one of its fundamental components. I remember the day that Verwoerd’s successor, John Vorster, was elected. We university students greeted each other with mock Nazi salutes. He was detained in 1942 as a result of his membership of the pro-Nazi Ossewabrandwag, which supported Germany during the Second World War.

RESISTING INJUSTICE

There was, of course, a small minority of whites, including Afrikaners, who opposed the injustice of apartheid. A conspicuous example was the lawyer, Bram Fischer. Despite his impeccable Afrikaner antecedents (his father was judge president of the Orange Free State; his grandfather, a member of the cabinet) he championed the rights of the oppressed, defending Mandela in the notorious Rivonia trial of 1963-4. Enduring considerable personal suffering and sacrifice, he went underground to wage war against the iniquity of apartheid.

In 1966, he was convicted of furthering the aims of communism – a catch-all charge, since communism was defined to include ‘bringing about any political, industrial, social, or economic change… by the promotion of disturbance or disorder’ or ‘encouraging feelings of hostility between the European and the non-European races… the consequences of which are calculated to further… disorder’. The statute empowered the minister of justice to brand as a communist any person he decided fitted the description.

Fischer was sentenced to life imprisonment, during which he developed cancer. As a result of a fall, he fractured his neck and femur. He was partially paralysed and lost the ability to talk. Three months elapsed before the authorities permitted his transfer to hospital. He died soon thereafter. Ruthless inhumanity and petty vindictiveness were among the hallmarks of apartheid.

Nelson Mandela described Fischer as ‘one of the bravest and staunchest friends of the freedom struggle that I have ever known … displaying a level of courage and sacrifice that was in a class by itself’.

KILLING OPPONENTS

The generosity of definition of the Suppression of Communism Act of 1950 was equalled by the Terrorism Act of 1967 which defined ‘terrorism’ as including anything that might ‘endanger the maintenance of law and order’. Life sentences in South Africa were exactly that. And the gallows were kept busy: between 1910 and 1989 more than 4,200 executions were carried out. About half of those met their end between 1978 and 1989 when the struggle against apartheid was at its peak.

The overwhelming majority of those put to death were black; many were political prisoners. At the end of July 1989, for example, a total of 283 prisoners were being held on death row at Pretoria Central Prison. Of these, 272 were black; 11 were white. In March 1988, 53 individuals were hanged for politically related crimes.

APARTHEID STANDS ALONE

It hardly requires stating that injustice in our world is ubiquitous. But the abomination of apartheid was unique. The United Nations sought in 1973 to crystallise its essence by establishing it as a crime. According to the Apartheid Convention, the offence consists of inhuman acts committed for the purpose of maintaining domination by one racial group over any other, and systematically oppressing them.

The authors of the Convention, in pursuit of greater precision, provided a catalogue of the acts embraced by the crime, including murder, torture, inhuman treatment and arbitrary arrest of members of a racial group, legislation that discriminates in the political, social, economic and cultural fields, separate residential areas for racial groups, the prohibition of interracial marriages, and the persecution of opponents of apartheid.

The text captures the quintessential elements of apartheid as applied in South Africa – even though it drains it of much of the system’s malevolence and authoritarianism touched on above. And, despite the demise of apartheid in 1994, the offence lives on. Thus, in 1998, the Rome Statute of the International Criminal Court included apartheid, along with a catalogue of other wrongs such as murder, extermination, enslavement, and torture, as a crime against humanity.

APARTHEID EXPORTED?

Lawyers – and other pedants – may therefore claim that, notwithstanding the terms of the Apartheid Convention, and its explicit description of the South African situation, apartheid may exist anywhere. This folly has, of course, given rise to the preposterous contention that Israel is an ‘apartheid state’. The Jewish state is far from a paragon of virtue, but stigmatising it in this cavalier manner is itself a grotesque injustice – and an affront to those who endured the long years of torment and persecution in South Africa.

The subjectivity of suffering renders any attempt to calibrate injustice, difficult. It is specious and misconceived, however, to describe Israel as implementing apartheid – even by the standards of international law.

Where are the ‘inhumane acts… of an institutionalised regime of systematic oppression and domination’ by one race over another, as specified in the Rome Statute? Unlike blacks under apartheid, Israeli Arabs may vote, stand for election to parliament, be appointed to the judiciary. They have the freedom to attend any hospital, school, or university. They are not denied access to beaches, cinemas, theatres, libraries, sporting facilities. They may choose who to love. And it is reportedly easier for an Arab citizen of Israel to buy an apartment in Tel Aviv or Jerusalem than in Beirut, Bahrain, Kuwait, or Doha.

FINDING APARTHEID

Even Richard Goldstone, the former South African judge who headed the censorious inquiry into Israel’s ‘Cast Lead’ operation in Gaza, conceded that in Israel, ‘there is no apartheid. Nothing there comes close to the definition of apartheid under the 1998 Rome Statute…’ In an article in the New York Times in October 2011, he declared:

‘I know all too well the cruelty of South Africa’s abhorrent apartheid system, under which human beings characterised as black had no rights to vote, hold political office, use “white” toilets or beaches, marry whites, live in whites-only areas or even be there without a “pass.” Blacks critically injured in car accidents were left to bleed to death if there was no “black” ambulance to rush them to a “black” hospital. “White” hospitals were prohibited from saving their lives.’

The plight of those who live in Gaza and the West Bank is plainly different. Combating terrorism and maintaining security inevitably exact a high price. It cannot be denied that many Palestinians encounter hardship, privation, and indignity. But one might ask: Where is the sympathy and compassion for those who live in squalid camps in various Arab countries?

In Lebanon, for example, up to 400,000 Palestinian refugees live in dreadful social and economic conditions, many in overcrowded camps without essential utilities. They are effectively stateless. In 2001, the Lebanese parliament enacted legislation prohibiting Palestinians from owning property. The law also restricts their ability to work in several areas. While a ban on Palestinians holding most clerical and technical positions was terminated – provided they obtained temporary work permits – more than 20 high-level professions are denied to Palestinians. Moreover, Palestinians are not eligible for social security benefits. They are subject also to discrimination in respect of housing, property ownership, inheritance rights, and freedom of movement and residence.

SELECTIVE OUTRAGE 

Where is the expression of outrage at these measures? Is Lebanon not an ‘apartheid state’? What about Syrian discrimination against Sunnis and Christians? Or its gulag of extermination camps in which thousands of political opponents are executed and tortured? Why is Israel singled out for censure and boycotts? Even in the case of Gaza and the West Bank it is mendacious and mischievous to describe Israeli policy as apartheid. Is the Israeli government really an ‘institutionalised regime of systematic oppression and domination by one racial group?’

Whatever traction its advocates seek to gain from the South African archetype, the argument actually undermines the Palestinian cause. If there is injustice, let us call it by its name. Simplistic sloganeering is unhelpful. It is no less so than in the increasingly fashionable designation of ‘Holocaust’ to instances of barbarity that, while plainly heinous, fall far short of the depravity of the Third Reich. There are, of course, all too many examples of egregious attempts at genocide around the world but they are usually confined to a single nation and spring from internecine tribal or religious divisions. The ‘final solution’ – the wholesale extermination of the Jews (not merely in one country, but across all of Europe) – stands alone as a paradigm of inhumanity and iniquity. Let it be.

It is no answer to assert that these usages are merely metaphorical. Metaphor often enriches language. But it may also debase. The capricious abuse of ‘apartheid’, along with ‘massacre’, ‘genocide’, and ‘occupation’, has lamentably become commonplace.

Factual and linguistic precision is more likely to generate solutions to intractable political problems. Reckless rhetoric may appeal to the demagogue; it has no place in the quest for peace and justice.

I have just discovered – thanks to Google maps – that Hendrik Verwoerd Drive has been renamed. It is now Bram Fischer Drive.

About the writer:

Raymond Wacks, Emeritus Professor of Law and Legal Theory, graduated from Wits law school in 1969 having served on the Executive of the SRC and as President of the Law Students’ Council. He left South Africa in 1970 to pursue research at Oxford where he spent the next decade. In 1982 he returned to SA to take up the chair in public law at the University of Natal, Durban. Wacks is the author of fifteen books, several of which have been translated into more than a dozen languages on legal philosophy, privacy, and justice. He is also the co-author of five books, and editor of ten. His monograph, The Rule of Law Under Fire was published by Hart in 2021. Oxford University Press published the sixth edition of his Understanding Jurisprudence: An Introduction to Legal Theory in 2021, as well as the third edition of Law: A Very Short Introduction which appeared earlier this year.

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