The Legal System

South Africa's legal system, like the rest of the political system, was radically transformed as the apartheid-based constitutional system was restructured during the early 1990s. Nevertheless, many laws unrelated to apartheid continued to be rooted in the old legal system. Thus, the justice system after 1994 reflected elements of both the apartheid-era system and nondiscriminatory reforms.

The Apartheid-Era Legal System

The principles embodied in the legal system were adapted from Roman-Dutch law with an admixture of English law introduced after 1806. The influence of English law is most pronounced in criminal legal procedures, in constitutional or statutory law, and in corporate and mercantile law. Roman-Dutch law predominates in private law--for example, the law of persons, of property, of succession, and the law of sale and lease. Despite the influence of these universally accepted laws, however, a prominent feature of the former legal system was the pervasive role of discriminatory apartheid-based laws, regulations, and codes (see The Legislative Implementation of Apartheid, ch. 1), and the extensive judicial apparatus required to enforce them.

Judicial authority is vested in the state, and the minister of justice is responsible for administering the justice system. The president appoints the attorneys general, who order public prosecutions on behalf of the state, and whose authority in the lower courts is delegated to public prosecutors. Similarly, the president also appoints judges from among members of the bar. Until the 1990s, all judges were white. The legal profession is divided broadly, as in Britain, into advocates (barristers) and attorneys (solicitors); only the former can plead a case in a higher court.

The judicial system is headed by the Supreme Court, the decisions and interpretations of which are considered an important source of the law. The Supreme Court comprises an Appellate Division and six provincial divisions. Each provincial division encompasses a judge president, three local divisions presided over by judges, and magisterial divisions presided over by magistrates. Separate traditional courts administer African traditional law and custom; they are presided over by traditional leaders, often chiefs or respected elders.

The Appellate Division of the Supreme Court is the highest court in the country and is seated in Bloemfontein, the country's judicial capital. The Appellate Division is composed of the chief justice and the judges of appeal, whose number varies, as determined by the president. Supreme Court members can be removed only on grounds of misbehavior or incapacity. The Appellate Division's decisions are binding on all lower courts, as are the decisions--within their areas of jurisdiction--of the provincial and the local divisions. Lower courts, which are presided over by civil service magistrates, have limited jurisdiction in civil and criminal cases. In 1995, there were 309 district magistrates' offices, presided over by 1,014 magistrates, 1,196 prosecutors, and 3,717 officers.

The Legal Aid Society, an independent statutory body, provides advice and assistance to indigent persons. Other programs offer aid or rehabilitation to prisoners. Until the mid-1990s, a few private voluntary organizations, such as Black Sash, offered legal assistance to people who faced legal problems arising out of the pass laws or other apartheid-era legislation.

The New Legal System

The postapartheid legal system introduced by the interim constitution of 1993 embodies the supreme law of the land and is binding on all judicial organs of the state. It establishes an independent judiciary, including a Constitutional Court with the power to review and to abolish legislation inconsistent with the constitution. It includes provisions not found in apartheid-era laws, such as a prohibition on all forms of discrimination and an emphasis on individual rights. These rights include "equality before the law and equal protection of the law"; freedom of expression, assembly, demonstration, petition, and association; the right to "choose a place of residence anywhere in the national territory"; the right not to be deprived of citizenship without justification; full political rights; full access to the courts; and fair and lawful administrative justice mechanisms, including rights concerning detention, arrest, and accusation. Other provisions provide for specific rights in areas such as economic activity, labor relations, property, environment, children, language and culture, education, and conditions under which a state of emergency can be declared.

In 1994 the government established the new Constitutional Court, a Human Rights Commission, and a Judicial Services Commission that forwarded to the president its ten nominees to the Constitutional Court. Legislation in 1994 also set forth operating procedures for these bodies and established the Office of the Public Protector (public defender).

The new legal system also deals with the consequences of apartheid-related abuses and crimes, although it aims primarily to promote a spirit of national reconciliation and a new "culture of human rights," rather than to resolve long-standing grievances. In June 1994, the government announced that a Truth and Reconciliation Commission would investigate accusations of human rights abuses and political crimes by both supporters and opponents of apartheid, and that it would consider related issues such as amnesty and reparation to survivors and their dependents. The government established guidelines for the commission's operations in 1994 and 1995, and the Truth and Reconciliation Commission began hearing testimony by both victims and perpetrators of apartheid-era violence in early 1996.