The Legal Veneer

From: A Crime Against Humanity - Analysing the Repression of the Apartheid State edited by Max Coleman

The apartheid government always had an obsession with projecting itself to the outside world as a Western-style parliamentary democracy. All public actions taken by it, no matter how reprehensible or abhorrent to the outside world, were always packaged in legislated form as Acts of parliament duly gazetted and followed by regulations where appropriate. Whether it was the denial of fundamental rights of movement, expression, assembly, residence, association and so on; or the forced relocation of millions of dispossessed people, or the creation of 'independent states' recognized by no one, all such actions were clothed in the respectability of formal legislation. Long after apartheid was pronounced a crime against humanity, the South African government still kept up this charade of parliamentary correctness and the 'rule of law'.

Formalized repression was no exception. A long succession of Acts legalizing every form of repression imaginable finally culminated in an omnibus piece of legislation known as the Internal Security Act, No. 74 of 1982. A thorough examination and analysis of this Act, its history, application and status as at July 1990 appears in the HRC document, entitled Internal Security Act , published in July 1990.

There have also been times - during the States of Emergency - when the gloves came off to reveal cold steel. Such States of Emergency were given legal force and standing under the Public Safety Act, No. 3 of 19 S3 (PSA). The declarations of Emergencies and their consequences are also described in this chapter from material drawn from DPSC and HRC monthly reports from July 1985 to July 1990, and entitled Public Safety Act and States of Emergency.

INTERNAL SECURITY ACT
HRC, July 1990

1. Introduction
2. Homelands security legislation
3. Powers of the ISA
Detention without trial
Banning of persons
Listing of persons
Banning of organisations
Banning of gatherings
Banning of publications
Political trials and imprisonment

1. Introduction

The Internal Security Act, No. 74 of 1982 is the current permanent security legislation of the Republic of South Africa. It came into effect on 2 July 1982, but has a long ancestry stretching back to 1950. Included amongst its progenitors are a whole succession of Acts, starting with the Suppression of Communism Act, and progressing through a series of Internal Security Acts, General Law Amendment Acts, Riotous Assemblies Acts, the Unlawful Organisations Act and the Terrorism Act. In 1979, the Rabie Commission was appointed to streamline and consolidate this plethora of legislation. At the end of its labours a report was tabled before parliament on 3 February 1982, which culminated in the Internal Security Act, as we know it today, and in the simultaneous repeal of most of its forerunners. In this sense it can be described as the last word in security legislation, a monument to over 30 years of experience in drafting statutes which could defend apartheid security against its many opponents; a monument to the way in which loopholes and avenues of expression could be closed down one by one, until space for legitimate political opposition vanished altogether.

2. Homelands security legislation

Before examining the Internal Security Act in detail, it is necessary to point out that the so-called independent homelands of Transkei, Bophuthatswana, Venda and Ciskei have their own security legislation as follows:
• Transkei Public Security Act, No. 30 of 1977
• Bophuthatswana Internal Security Act, No. 32 of 1979
• Venda Maintenance of Law and Order Act, No. 13 of 1985
• Ciskei National Security Act, No. 13 of 1982
They are, in effect, carbon copies of the ISA, which comes as no surprise, so that any analysis of the ISA applies equally to the security legislation of the TBVC territories. In the case of the so-called self-governing homelands of Gazankulu, KaNgwane, KwaNdebele, KwaZulu, Lebowa and QwaQwa, these areas fall under the jurisdiction of the ISA.

3. Powers of the Internal Security Act

The powers of the ISA are truly awesome. There is hardly a form of political expression, which is not blocked, controlled or threatened by one or other provision of the ISA. This document sets out to analyze these extraordinary powers, to describe briefly the implementation of these powers in the past, and in particular to examine the current status of the way in which they are being applied.

Detention without trial

ISA powers of detention without trial

The ISA provides for detention without trial for 3 different stated purposes:
1. Detention for interrogation (Section 29)
2. Preventive detention (Sections 28, 50 and 50A)
3. Witness detention (Section 31)

1. Detention for interrogation. Section 29 allows a detainee to be held in solitary confinement without access to lawyers, family, friends or anyone else other than state officials (interrogators, magistrates, district surgeons, etc.) for the purpose of interrogation. The period of detention is effectively unlimited (a two-year uninterrupted detention is on record) until 'all questions are satisfactorily answered'. The intensely hostile environment of this form of detention has led to innumerable allegations of torture and to a substantial number of deaths. The jurisdiction of the courts over such detention is specifically excluded.

2. Preventive detention. Section 28 allows the holding of a person in prison by ministerial order (as opposed to court sentence) if the minister believes that person is likely to commit a security offence. The period of detention is, in effect, unlimited. The wording requires the minister to give reasons for detention, a requirement that has resulted in successful court challenges, and a subsequent abandoning of Section 28 in favour of other means.

Section 50A provides other means of long-term preventive detention. It allows for detention of up to 180 days (renewable) simply on the basis of the opinion, without giving reasons, of a police officer. This section, introduced as an amendment to the ISA in 1986, can only come into operation when so proclaimed by the state president. So far, this has not been necessary due to the even wider powers of preventive detention that have existed under the States of Emergency.

Section 50 allows for the holding of a person for a short period of up to 14 days. It has been extensively used when and where no State of Emergency existed and it can be expected that its use will now be resumed.

3. Witness detention. Section 31 allows the attorney general to order the detention of a person in solitary confinement, without any access, and beyond the jurisdiction of any court, if he believes that person could be a material witness in a security trial. Time limit is 6 months, unless the trial has started before then. Almost invariably. Section 31 detention is an extension of Section 29 detention when, as a result of the interrogation process, it is decided that the detainee shall become a state witness (with or without the agreement of the detainee).

Past application of detention without trial under ISA

Records kept over the years show that a minimum of 24 000 detentions have taken place since 1963 when powers of detention under permanent legislation were first introduced (including about 6500 detentions in the TBVC homelands). This figure is aside from the 54 000 detentions which have taken place under State of Emergency powers.

Records kept since 1981 reveal that about 75% to 80% of all detentions end in release without charge in any court of law, attesting to the political nature and purpose of such detention. These records also reveal that only 2% to 4% of detainees are convicted of any offence.

Since 1963, over 70 persons have died in detention, the vast majority of them while being held under ISA and TBVC legislation.

Current application of detention without trial under ISA
During the first half of 1990, detention without trial under the ISA has been going on at a level such that the numbers being held at any one time have fluctuated between 30 and 50. With the lifting of the State of Emergency in all areas except Natal, detentions under ISA can be expected to rise, using Section 29, 31 and 50 and also TBVC homelands legislation. Furthermore, Section 50A could be invoked at any time.

Deaths in detention have continued to occur during 1990, as have reports of torture in detention. Two of the deaths occurred whilst persons were being held under Section 29 of the ISA. Torture and deaths in detention can be expected to continue for as long as detention without trial is permitted to remain on the statute books.

Banning of persons

ISA powers of banning of persons

Sections 18 to 27 of the ISA set forth the manner in which a person may be served with a banning order, and what the stipulations of such a banning order may be:
• Membership of or participation in organisations can be banned under Section 18 by enforcing resignation, prohibiting joining and various other restrictions.
• Confinement to an area can be enforced under Section 19 by specifying the place and times of confinement. This can include house arrest or banishment to a remote area.
Prohibiting visitors can bar
• Communication with other people during area confinement under Section 19.
• Admission to places or buildings can be prohibited under Section 19; these can include educational institutions, workplaces, etc.
• Attendance at gatherings can be prohibited under Section 20, a gathering being defined as a coming together of 'any number of persons having a common purpose, whether lawful or unlawful'.
• Periodical reporting to a police station can be enforced under Section 21 by specifying the frequency, such as once or twice a day for the duration of the banning order.
• Gagging of the person can be ensured under Section 23 by making it an offence under Section 56(l)(p) to quote that person.
• The duration of the banning order can be unlimited.

Past application of banning of persons under the ISA

Banning of persons under security legislation has been in operation since 1950. Its purpose is similar to that of 'preventive' detention (and in fact frequently has followed it), namely, to neutralize political opponents and withdraw them from the political arena. It provides strict control over the movement, activities, public utterances and association of the person, while interfering severely with the pursuit of a normal life. Since 1950, close on 2000 people have been subjected to this twilight existence under security legislation, apart from those under the States of Emergency. The effective length of each banning order can vary from 1 to 5 years, but, successively applied, orders can extend the period well beyond this. The longest period on record is 26 years.

Current application of banning of persons under ISA

During 1986 a number of court challenges were successfully brought against banning orders on the basis that the reasons which the minister is required to give under Section 25 were invalid. Since that time no banning orders under the ISA have been issued, but use has instead been made of wider powers under State of Emergency regulations. All such SOE restriction orders were withdrawn on 2 February 1990. As a consequence no one is currently under a banning order but the ISA powers still stand.

Listing of persons

ISA powers of listing of persons

Sections 16 and 17 of the ISA instruct the Director of Security Legislation to maintain a list (known as the Consolidated List) of persons' names who are:
• members of unlawful organisations,
• convicted of security offences or treason or sedition,
• banned,
• detained under Section 28.
The consequences of being listed bar that person from:
• being quoted (an offence under Section 56(l)(p) with a penalty of up to 3 years),
• holding parliamentary office (Section 33),
• practising law (Section 34).

Past application of listing of persons under ISA

The practice of 'listing' dates back to the Suppression of Communism Act of 1950. Many hundreds were labelled as 'communist' in this way over the years and the numbers were swelled by the names of the banned, of the 'preventive' detainees and of the security prisoners. Each year an updated list is gazetted and includes people who are living in exile, resident in South Africa, incarcerated in prisons and those who are deceased.

Current application of listing of persons under ISA

The last annual gazetting of the Consolidated List was on 4 August 1989. A total of 537 names appeared on the list at that time. However, due to the unbanning of organisations on 2 February 1990 and to certain other factors, a substantial number of people have since been de-listed. Nevertheless, over 300 names are still left on the Consolidated List and are subject to the consequences.

Banning of organisations

ISA powers of banning of organisations

Under Section 4 of the ISA, the minister is empowered to declare an organisation to be unlawful. There are a number of consequences of such a declaration and these are enumerated in Sections 13 and 14. Briefly they provide for winding down the organisation by confiscating and liquidating its assets and by prohibiting anyone from furthering its aims in any way. Contravention of such a prohibition becomes an offence under Section 56(l)(a) and is punishable by a sentence of up to 10 years.

Past application of banning of organisations under ISA

The first organisation to be declared unlawful was the South African Communist Party (SACP) in 1950, followed in 1960 by the African National Congress (ANC) and the Pan Africanist Congress (PAC). In all, 24 organisations have suffered this fate, plus a further 42 under homelands security legislation.

Current application of banning of organisations under ISA

All 24 organisations referred to above were unbanned on 2 February 1990. TBVC homelands have since followed suit. As a consequence no organisation is currently under a banning order, but the banning powers remain on the statute books.

Banning of gatherings

ISA powers of banning gatherings

Sections 46 to 53 of the ISA deal with the measures available to prohibit or control various gatherings.

• The minister of law and order can, under Section 46, prohibit gatherings of a particular class in any area, at any time and for any period. He can also prohibit specific gatherings.
• Magistrates can, under Section 46, prohibit or impose conditions on specific or al gatherings within their magisterial district, for a period up to 48 hours.
• The police may bar access, under Section 47, to places where a gathering has beer prohibited and may, under Sections 48 and 49, disperse prohibited or certain other gatherings with the use of force, including firearms, depending upon certain circumstances.

Past application of banning of gatherings under ISA

Since 1950, literally thousands of gatherings have been banned by ministerial, magisterial and police edict and tens of thousands have appeared in court charged with attending unlawful gatherings. Such gatherings have included public meetings, private meetings, protest marches and demonstrations, rallies, commemorations, conferences and spontaneous gatherings of all kinds.

Since 1976, the minister has imposed a blanket ban, renewed annually, on all outdoor political gatherings for which no permission has been obtained. Since 1986 there has also been a blanket ban on all indoor gatherings at which work stoppages, stayaways or educational boycotts are advocated.

During 1989, the official figure of arrests for attending gatherings banned under the ISA was 2171 persons. During late 1989, as a consequence of the mass support for the Defiance Campaign, permission began to be granted for protest marches and demonstrations to give de jure effect to a de facto situation. There was, however, a high degree of inconsistency, and in August and September alone over 50 marches and demonstrations were broken up by the police, 28 with the application of force resulting in many deaths and injuries.

Current application of banning of gatherings under ISA

The blanket bans on all outdoor political gatherings and certain indoor political gatherings are still in place, having been renewed for another year as from 1 April 1990. Furthermore, the ministerial and magisterial powers to ban specific meetings continue to be exercised. Of particular concern however is the current behaviour of the police in the way that they are exercising their powers of breaking up gatherings. Records show that in the first half of 1990 over 170 persons have lost their lives and more than 1500 have been injured during the course of such police action.

Banning of publications

ISA powers of banning publications

Under Section 5 of the ISA, the minister can close down a newspaper or similar periodical if he deems that the publication expresses views endangering the security of the state, propagates or furthers communism, or propagates views or furthers the aims of banned organisations.

Under Section 15 of the ISA, a newspaper on applying for registration must deposit up to R40 000 if the minister believes it will be a candidate for banning at any stage. In the event of subsequent banning, the deposit is forfeited. Furthermore, registration lapses if the newspaper fails to come out at least once a month.

Under Section 56(l)(b) any person who distributes publications banned under the ISA can be imprisoned for up 10 years while under Section 56(l)(c) possession of such publications can result in a 3-year sentence.

Past application of banning of publications under ISA

During the years 1952 to 1977, 8 newspapers were closed down in terms of Section 5 of the ISA. Although they have long ceased to exist, they were all technically unbanned by a Government Notice dated 3 February 1990 as a consequence of the unbanning of previously unlawful organisations.

In 1988, the deposit requirements of Section 15 forced an Eastern Cape news agency to abandon plans to start a newspaper. More recently, deposits were demanded of The New African and Vrye Weekblad.

Current application of banning of publications under ISA

No newspapers or other publications are currently banned under the ISA although the powers to do so are still intact. So are the powers to demand a deposit for the registration of a new newspaper. The numerous prosecutions of past years for the distribution or possession of banned publications have tapered off, leaving only one or two trials for such offences allegedly committed before 2 February 1990.

Political trial and imprisonment

ISA powers of political trial

TABLE 2
Summary of the main political offences and penalties

Sections 54 to 63 of the ISA define a wide range of political offences, together with the prescribed penalties upon conviction, while Sections 64 to 69 deal with the procedure and jurisdiction of the courts. Section 30 empowers the attorney general to remove the discretion of the courts to grant bail to a person accused of certain security offences.

Past application of political trial under ISA

The history of political trial and imprisonment goes back to the very beginnings of the ISA and its forerunners. It is impossible to estimate the number of trials, persons charged and persons convicted over the years because of the lack of adequate records. However, an estimate based on records kept by monitoring groups for the last 5-year period shows over 500 such trials involving about 5000 accused and resulting in about 1000 convictions.
The average prison population of 'security' prisoners at any point during this period fluctuated between 300 and 400, with a continuous inflow of new prisoners balancing out the releases at end of sentence.

Current application of political trial under ISA

Political trials under the ISA continue. Some of these trials relate to events before F.W. de Klerk's parliamentary address of 2 February 1990, but others to events after that date. About 30 ISA trials have been completed since that date and as many are still in progress. About 120 'security' prisoners have, since 2 February, been released before completion of sentence, but about 300 still remain (apart from the much higher number of political' prisoners serving sentences for 'unrest' offences).

Summary of the Internal Security Act

PUBLIC SAFETY ACT AND STATES OF EMERGENCY DPSC/HRC, 1985-1990

Legislation

Under the Public Safety Act, No. 3 of 1953, the head of state is empowered to declare a State of Emergency in part or all of South Africa, if in his opinion 'it appears that circumstances have arisen which seriously threaten the safety of the public and the maintenance of public order, and that the ordinary law of the land is inadequate to enable the government to ensure the safety of the Public and to maintain public order'.

Given that the 'ordinary law of the land' is the Internal Security Act with all its awesome powers, there must be very compelling reasons for invoking a State of Emergency. Essentially these are the power to use all security forces (defence force as well as police) on a mass scale, with a minimum of procedural constraint, suitably indemnified against prosecution. Unless withdrawn sooner, a proclamation remains in force for 12 months. However, repeat proclamations can ensure an indefinite State of Emergency. The PSA also provides for the issuing of any regulations deemed necessary for dealing with the state of emergency.

Declarations of States of Emergency

TABLE 3
States of Emergency

The first occasion on which the apartheid government considered that circumstances had arisen which warranted invoking the PSA and declaring a State of Emergency was on 30 March 1960. The relevant circumstances then were the Sharpeville massacre of 21 March 1960, claiming the lives of 67 victims and sending shock waves around the country^ and indeed the world; and the banning of the ANC and PAC one week later. The declaration was to affect 122 magisterial districts (out of 265) before being lifted 5 months later on 31 August 1960. Detentions numbered 11 727.

Surprisingly, the Soweto Uprising of June 1976 did not produce a similar reaction on the part of the government, despite the fact that circumstances were hardly any less serious. The reasons why a State of Emergency was not declared on that occasion have never been revealed and remain a mystery to this day.

There could have been little hesitation about the decision to declare a State of Emergency on 21 July 1985. The circumstances then were a rapidly growing and widespread ungovernability arising out of the total rejection by the majority of the population of the tricameral elections in 1984, from which they were excluded, the attempts to foist puppet black local councils on them and the Vaal uprising in September 1984 against the imposition of unaffordable rent increases by the selfsame black local councils. The choice of 21 July 1985 was significant. That was the day on which 60 000 anti-apartheid activists from all over the country flocked to Cradock to attend the funeral of the murdered 'Cradock Four'. Hundreds of buses and other vehicles returning to their home towns that day were intercepted by hordes of Security Police armed with lists of wanted activists and very soon the detention cells were bulging with over 1000 detainees. This State of Emergency was to last for seven and a half months (from 21 July 1985 to 7 March 1986) and was to affect 44 magisterial districts during that time, mainly in PWV (now Gauteng), Eastern Cape and Western Cape. An unintended consequence of the State of Emergency was an almost instantaneous flight of foreign capital and withdrawal of several foreign banks from the country. Lacking the foreign reserves to meet the demand for foreign debt repayment, the government was forced to declare a moratorium on debt repayment, which further compounded the deep crisis of isolation from the international financial system. These essentially were the factors leading to a premature lifting of the Emergency on 7 March 1986, in a desperate bid to restore South Africa's international financial standing, even at a time when the level of ungovernability in the country was by no means declining. In his speech announcing the lifting of the State of Emergency, P.W. Botha said the following: 'To enable the authorities to deal with continued incidents of unrest without subjecting the population to the inconvenience of a state of emergency, existing legislation will be reviewed and amendments proposed.' He was referring to the intention to amend the Public Safety Act whereby Unrest Areas could be declared, in effect mini-States of Emergency without the stigma of the name, but with all the powers. However, he did not reckon with the opposition to this unpalatable device, which was to come from the two non-white houses within the tricameral parliament, which, while unable to block the ultimate passage of the legislation, were able to slow it down.

With 16 June (Soweto Day) approaching and a major security crisis looming, the government could no longer wait for the unrest area legislation to save the day, and were forced to opt instead for a full-blown national State of Emergency. This they declared on 12 June 1986, just four days ahead of Soweto Day, and within 2 weeks there were over 10 000 detainees inside the police cells. As a matter of record, the Public Safety Amendment Act, No. 67 of 1986 (the 'Unrest Areas Act') only became law on 26 June 1986, or just 10 days too late to be of use on that occasion; the first time it was to be put into effect was over four years later, on 24 August 1990.

The 12 June 1986 State of Emergency was to be the first of 4 national States of Emergency that ran their full statutory course of twelve months. The other three were declared on 11 June 1987, 10 June 1988 and 9 June 1989, so that as one Emergency expired the next one was activated, complete with new sets of regulations, new detention orders and new restriction orders. It was even reported that as an Emergency was expiring, detainees were cleared out of the cells, taken to the prison gates, served with detention orders under the new Emergency and returned to their cells.

On 8 June 1990 a State of Emergency was declared in the province of Natal (including the 'self-governing' territory of KwaZulu) thereby taking it into its fifth successive year of Emergency. This was finally lifted on 18 October 1990.

Regulations and orders

The state president is empowered by the PSA to proclaim regulations considered necessary to deal with the state of emergency, and in turn the regulations empower the national commissioner of police and the divisional commissioners of police to issue certain orders.

Since July 1985, these regulations and orders have undergone an evolution as a result of a cat and mouse game with, on the one hand, the defiant communities devising new methods and tactics of resistance and, on the other hand, the authorities responding by introducing new measures of repression to counter the new tactics. In addition, human rights lawyers have continually probed for legal weaknesses or inconsistencies in the proclamations and while many such challenges have met with success, they have in the end simply resulted in amendments designed to close off the exposed legal loopholes.

As time went by the government developed a series of standard regulations, which were a product of this cat and mouse game. The series is as follows:
• Security Emergency Regulations
• Prison Emergency Regulations
• Media Emergency Regulations
• Educational Institutions Emergency Regulations

Powers under each set of regulations are described briefly below:

SECURITY EMERGENCY REGULATIONS
Maintenance of order and use of force
Arrest and detention of persons without trial
Entry, search and seizure without a warrant
Obligation to furnish name and address
Restriction and banning of organisations
Prohibition of various activities and campaigns (e.g. release of all detainees)
Restricting access to specified areas
Restricting and banning of gatherings
Imposition of curfews
Restriction of funeral processions and vigils
Defining offences and penalties
Power to act of lowest-ranking security force members
Immunity from prosecution

PRISON EMERGENCY REGULATIONS

Segregation of security detainees
Medical treatment of detainees
Exercise for detainees
Detainees in police cells or lock-ups

MEDIA EMERGENCY REGULATIONS

Prohibition on presence of journalists at unrest or security actions
Prohibition of dissemination of audio-visual material
Prohibition on 'subversive' statements, including information on security action, restricted gatherings, strikes, boycotts, detention conditions, political campaigns, blank spaces in newspapers
Prohibition on photographs of unrest or security actions
Prohibition of production, importation or publishing of certain periodicals
Prohibition of systematic or repetitive publishing of 'subversive' propaganda
Seizure of certain publications or recordings
Compulsory deposit of periodicals
Offences and penalties

EDUCATIONAL INSTITUTIONS EMERGENCY REGULATIONS

Access to school premises
only during school hours
only to registered pupils
only for specified activities
No deviation from approved courses and syllabus
Prohibition on any disruption of school activities (e.g. school boycotts)
Prohibition on outside interference with school activities
Prohibition on possession, display or distribution of banners, posters, T-shirts, pamphlets, etc. supporting specified campaigns or organisations
Regulation of movement and activities during school hours

Consequences and effects of State of Emergency

An effective 5 years of the imposition of a State of Emergency has had devastating consequences on the lives of millions of South Africans, particularly those living in townships subjected to occupation by security forces, curfews, restrictions of every imaginable kind and deaths of men, women and children as almost a daily occurrence.

In later sections of this book, the effects of the State of Emergency in terms of the application of the regulations to all the legalised forms of repression will be described in some detail. However, something needs to be said at this point about the loss of life during the periods of the States of Emergency as a result of the political unrest and the violence of the state in its attempts to contain it. From what can be gleaned from official police unrest reports and from the monitoring of various human rights groups and other sources, the following picture emerges:

TABLE 4
Deaths in political unrest 1984-1989

NOTES
• The numbers of deaths are rounded off approximations, within the spread of the various sources.
• During the earlier years of 1984 to 1986, up to two-thirds of the deaths were accounted for by security force actions.
• During the later years of 1987 to 1989 vigilantism (see Chapter 6), particularly in the Natal region, took over as the predominant cause of deaths.

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