1953 South Africa Article

The Government’s Policy and Practice of Racial Discrimination and Oppression in the Union of South Africa

Spotlight on Africa, August 13, 1953

III. The South African Government Flouts the Rule of Law

Government by arbitrary decree is more and more replacing government by law in South Africa. Such laws as the Suppression of Communism Act and Public Safety Act were enacted precisely to dispense with Parliament and enable the Government to rule by rule by decree. In opposing the Suppression of Communism Bill, the United Party opposition introduced an amendment (defeated by the Nationalist majority) which declared that the Bill “creates a fascist depotism, in that it clothes the Executive with unnecessarily wide and despotic powers, fails to provide for full and effective access to the courts, and makes intolerable inroads upon the freedom of the citizens, including the power to violate the sanctity of the home.” By the terms of the Public Safety Act, Parliament’s sanction is no longer required for the declaration of a national emergency and martial law.

Section 10(1) of the Suppression of Communism Act reads: “Whenever the Minister [of Justice] is satisfied that any person is in any area advocating, advising, defending or encouraging the achievement of any of the objects of communism…or is likely in any area to advocate, advise, defend or encourage the achievement of any such object…he may…prohibit him...from being within any area defined in a notice…”

Section 3 of the Public Safety Act reads: “The Governor General may….make such regulations as appear to him to be necessary or expedient…suspend in whole or in any part any Act of Parliament of any other law…and any such law which is in conflict with or inconsistent with any such regulation shall be deemed to be suspended…”

The Malan Government with one stroke sets aside all existing law in order to achieve its immediate ends. Thus Section 7 of the Criminal Law Amendment Act adopted this year reads: “A magistrate’s court shall, not withstanding anything to the contrary in any  other law contained, have jurisdiction to imposed any sentence or make any order provided by this Act.”

The world is well aware of the manner in which the Malan Government has flouted the country’s Constitution to remove the “Colored” voters from the common voting list. The Separate Representation of Voter’s Act was pushed to passage by the Nationalist majority despite the fact that the voting procedure did not conform with the constitutional requirement. When the Supreme Court’s Appellate Division, on March 20, 1952, ruled the Act invalid and unconstitutional because it was not passed by the required two-thirds majority, Malan rejected the decision and secured passage of a Bill (High Court of Parliament) establishing the members of Parliament themselves as the supreme arbiter of the law of the land, and over those of any court. Without waiting for the Supreme Court to act on the validity of the High Court of Parliament Act, Malan on August 27 had Parliament in its new role of High Court set aside the Supreme Court’s March 20 verdict. On November 13 the Supreme Court declared the High Court illegal. In the April 15 election the Nationalist Party failed to get to a two-thirds majority in Parliament, but Malan is still determined to have his way, courts or no courts.

Another fight between the executive and judicial branches of the Government developed when in March, 1953, the Supreme Court cast a shadow over Malan’s “apartheid” program by upholding the peal of an African that he had the right to use the Cape Town railway waiting room reserved for whites since the facility provided for Africans were inferior. Malan indignantly stated that “The judgement draws a line through the traditional apartheid on the railways as we have always known it,” making it clear that “apartheid did not mean separate but equal but equal status for non-whites. “If the Nationalist Party wins the election,” said Malan, “we shall rectify the matter without delay, and in a way that will leave no court in doubt about the wish and intention of Parliament and the people.” (N.Y. Times, March 25, 1953)

In the sphere of international conventions the stubborn and arrogant unilateral stand taken by the South African Government is well known. That Government remains the only one of the mandatory powers which has refused to abide by the trusteeship provisions of the United Nations Charter, maintaining exclusive authority and supervision over the mandate territory of South West Africa. It has year after year refused to join with the Government of India in settling the dispute over the treatment of Indians in South Africa, as recommended again and again by the United Nations General Assembly. It has consistently refused to ratify the Geneva Convention governing the used of forced labor – for the very good reason that, as pointed out in the recently published report of the Committee on Forced Labor set up by the United Nations and the International Labor Organization, “system of forced labor of significance to the national economy appears to exist in the Union of South Africa.”

Prime Minister Malan has declared war to the death against the African, Indian and “Colored” inhabitants of South Africa who, demanding equality and liberty and democracy, refuse to obey the unjust laws of the land. All liberal-minded people endorse and support their struggle for justice. It is the South African Government itself which should be called to account for flouting the rule of law.

NEXT: Part IV:Incitement to Violence

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