Some whites judges in South African courts help bolster black rights
Johannesburg — Pelted by the government's racial policies, blacks in South Africa seek, and sometimes find, refuge in the courts. But a recent landmark court decision has underscored the limited role of the judiciary in South African society. After Meholo Tom Rikhoto, a black man, won a legal battle with the government for a right to live with his family and work in Germiston, near Johannesburg - a decision that would pave the way for other black migrants to have similar rights - the government indicated it would honor the decision. But it also instituted a law that will in other ways make it harder for black families to live in cities.
This is just one indication of how the South African Parliament reigns supreme. Its laws cannot be challenged by the courts. And since Parliament is exclusively white, and controlled by Nationalists, blacks are subject to the policies of the ruling party.
But blacks still are testing their rights in the court. And there are clear indications that more and more blacks are taking such cases to courts - even though under the Constitution, the courts are too weak to change apartheid.
''The courts won't have great impact in democratizing South Africa,'' says Charles Nupen, an attorney involved in the recent court case. ''But they are one area where blacks can assert rights.''
Those hoping for a stronger role for the courts are disappointed by the new constitution the South African government is planning to adopt. It will bring Coloreds (persons of mixed race descent) and Indians into Parliament. But the authority for delimiting the role of those groups and of whites, which many say should belong to the judiciary, will rest with the president, who would have broad new powers. Also, the proposed constitution contains no bill of rights, which could have created a greater role for the courts.
In the recent landmark case, Mr. Rikhoto paved the way for many black migrant workers to gain permanent residence rights in cities. Such rights are valued by blacks because they allow families to live together and because they allow blacks to change jobs without being sent away from cities.
Although the government has found a way to at least partially circumvent the decision, the Rikhoto victory was a triumph for the courts and blacks.
The government has said that while it will grant rights to blacks with the same qualifications as Rikhoto - who had worked for the same employer for more than 10 years - it will not automatically allow them to bring their families to the cities. A new law will require that blacks first have ''approved'' housing for their families. That requirement runs counter to at least the spirit of the Rikhoto case.
The new housing restriction is ominous because the government controls the provision of black housing, and has already allowed a huge shortage to develop.
The new housing restriction also to some extent undermines the so-called Komani ruling of 1980 in which South Africa's highest court affirmed the right of family members to live with a man possessing permanent residence rights.
The Rikhoto and Komani cases are two prominent examples of the South African judiciary charting a course that is unpopular with the government. Another recent example of judicial independence was a 1982 ruling annulling the government's attempt to excise land and people from the ''homeland'' of Kwazulu and turn it over to neighboring Swaziland. The government has abided by that ruling.
There are contrary examples as well. In 1979, for instance, the courts said that in cases where people were prosecuted for producing banned literature, the judiciary needed to look at the desirability of the publications. The government promptly overruled with new legislation.
Parliamentary supremacy is not unique to South Africa. It is also found in Britain. But legal experts here say South Africa deviates from the model in Britain, where the doctrine of the rule of law restrains Parliament from infringing on basic individual liberties.
In South Africa the courts have been prohibited from pronouncing on a wide range of subjects, particularly those touching on security. In the 1960s, mounting security concerns of the white-minority government led to tough restrictions on individual freedoms.
History suggests that the National Party distrusts the courts. In 1951, three years after the Nationalists rose to power, the government attempted to remove Coloreds from electoral rolls. The Constitution required a two-thirds majority to remove the rights of the Coloreds. Parliament passed a law without the required two-thirds majority, and the appeal court declared the act void. The government simply increased the size of the Senate to get a majority. It also it amended the Constitution to severely restrict the role of the courts.
Legal experts say often the implementation of apartheid laws are harsher than the laws themselves. It is in forcing government to abide by the law that the courts have been most useful, say legal experts. And while these challenges cannot ultimately change South Africa's race laws, rights advocates feel the process can improve conditions for blacks.