- This is the third of my lecture series, which I described in a way that was designed to excite and entice the misrule of law. And this is entitled "Segregation and the Rule of Law". Now, I want to start with a building, a building in Pretoria in South Africa. And in 1898, its Jewish community erected a beautiful new synagogue. And here it is in 1904, a magnificent blend, so I read in the architectural guide to it, of the Gothic, the Moorish, and the Byzantine. And for more than 50 years the Jewish citizens of Pretoria in South Africa worshiped here. They then decided that the building had become too small for them. And they built a new synagogue elsewhere in Pretoria. And this became surplus to requirements. And the building was then sold to the South African State, who bought it to convert it into a courthouse. And it was then used for more than 20 years as a special court for so-called security cases. And I'm going to come onto that later in the lecture, some of those cases. But it was in the old synagogue in Pretoria that many of the significant classes between dissenters and the Apartheid State took place. Now, four years before the purchase of the old synagogue by the State, the National Party had come to power, formed a government after its surprise success in the general election of 1948, an election, of course, comprised almost exclusively of white voters, a very small percentage of the overall population of South Africa at the time, as of course, you will all know. The National Party formed a government and it swiftly instituted its program of apartheid. Literally, in Afrikanns the word means, as many of you all know, separateness. And one National Party Prime Minister a few years later would describe it without any trace of irony as"simple good neighborliness". The abysmal rhetoric of the time was one of separateness but equality. Rhetoric it was and abysmal it was. Now, apartheid as you all will recall was a social and political program based on racial ideas, which of course now revolt us. But to work in practice at the time, apartheid had to have a legal underpinning. So after 1948, a great tide of legislation ensued, emanating, of course, from an all white Parliament. And in short order, the building blocks of the Apartheid State were laid. So in 1950, just an year and a half or so after the election, the Population Registration Act provided for the formal individual classification of every single South African citizen into one of three supposed racial categories. And I will use the words with very heavy quotation marks around them. They were the words of the time, words, that of course, that are now highly offensive. So forgive me for that. The three categories the 1950 Population Registration Act utilized were white, native, and colored. And it's deeply discomforting to read how the bland language of Parliamentary statue, because, of course, South Africa was a Parliamentary democracy in one sense. The concept of democracy was bastardized and perverse. But it was a democracy in one sense. And it's Parliament generated legislation, which reads in one sense very similarly to the language of the legislation of other democracies, other more obvious and non-perverse democracies around the world. So we read, as I say, in the bland language of Parliamentary statute, how a policy of naked racism was converted into law. So let's look at some of the provisions of the Population Registration Act, often described as the absolute cornerstone of the Apartheid State. So I've referred to these three obnoxious racial categorizations. Look at the way the Parliament dealt with it. A white person means a person who in appearance obviously is, who's generally accepted as a white person, but does not include a person, who although in appearance obviously a white person, is generally accepted as a colored person. And then, native. A person who in fact or is generally accepted as a member of any aboriginal race or tribe of Africa. These were Parliamentary words from 70 years ago. Thirdly, a colored person means a person who is not a white person or a native. Now, the Act, this Act, which is a very lengthy piece of legislation, descended further down the rabbit hole. For instance, in deciding whether a person was obviously white, a phrase used in the Act, the Act continued to say that in making that decision, his habits, education, speech, deportment, and demeanor shall be taken into account. Just think, pausing there, about all the racial assumptions that that provision allowed to be brought to bare by the whole army of bureaucrats that were employed by the State to engage in this vast racial categorization of tens of millions of individuals who lived in South Africa. Now, a person's racial categorization mattered profoundly in South Africa at the time. And it could effect in a very profound way every aspect of that person's life, whether it was economic, social, political, or personal. Where there was doubt about a person's racial categorization, then humiliating and absurd tests could be deployed by these army of bureaucrats to work out into which racial group they supposedly fitted. One technique was the so-called Pencil Test. If a pencil was pushed into a person's hair and it did not fall out, that was seen as an indicator that they were a so-called, I use the phrase with heavy quotation marks, native. A person was permitted under the Act to challenge their classification. And there was introduced a so-called Race Classification Appeal Board, constituted by a tribunal made up of three people chaired by a judge. And that Board hear in the years of its operation literally thousands of cases where somebody was challenging their racial categorization. Sometimes, it was not just the person him or herself who challenged their categorization. One often finds that third-party, sort of busybodies, would see that somebody had been categorized as white, let's say, and would make an anonymous complaint to the Appeal Board to say,"Well, I dispute that they're white." And so would be set in motion a sort of witch hunt of machine, a sort of machinery of a witch hunt into the racial history or racial categorization of that individual. So just by that example, one can see how the law, and the operations of the law, and the policy of segregation were inextricably entwined. As I've said, a person's racial categorization in Apartheid South Africa mattered very profoundly. For instance, if you were registered as a colored or native person, again, using the language of the time, then you could not legally marry a white person and vice versa. Under the so-called Prohibition of Mixed Marriages Act in 1949, it was illegal for a so-called European to marry a non-European. And again, I use those phrases as the language of the time. Not only were you committing a crime if you married across your so-called race, but if you entered into interracial marriage, the union was to quote the statue, "void and of no effect". So the law simply didn't recognize your marriage as an actual marriage. A little later in 1957, there was enacted a statute called the Immorality Act. And that outlawed any form of"unlawful carnal intercourse" between different supposed racial groups. Again, let's look at how the language of statute coped with this form of, rule of prohibition. So we're now, the Immorality Act of 1957, section 16, 1a."Any white female person who has or attempts to have unlawful carnal intercourse with a colored male person, or..." And then you can read on the different categorizations of potential criminal act."Any immoral or indecent act shall be guilty of an offense." You'll have noticed or you may have noticed that in this particular statute, the language of white, colored, and native is no longer used. Instead, we have white female person and colored male person. That's because in this particular Act, Parliament decided to just categorize two so-called races, whites and supposed coloreds. And how were colored people defined in the Act? They were defined in this simple way. A colored person is "any person other than a white person." So the legislature had different ways of enacting racial, supposed racial difference. The maximum sentence for a crime under this particular section, seven years in prison. And I should say that throughout the 1960s and 1970s, and even into the 1980s, there were literally hundreds of prosecutions of all different racial types, or supposed racial types, for a contravention of this section. I should say this is just an example. Section 17 starts with any white male person and just converts it into that. And section 18 starts in a different way. But you can just see how the cascade continues. Statutes which prohibited interracial marriage or sexual relations were by no means confined to South Africa at this period. Most of the states of the United States of America had astonish, oh, it's not astonishing, but it's miserable, at this time similar legislation. And you may recall the famous decision of the United States Supreme Court in 1967 in the case of Loving against Virginia, which I'll come back to in a second. But one of the key differences between the United States and South Africa at the time was that in America, of course, there was a written Constitution, and of course, still is and have been since the late 18th Century, against which the Supreme Court protests the validity or legality of acts of the individual states. And then, Loving and Virginia was a case where a particular statute, which prohibited interracial marriage in the state of Virginia, was challenged before the Supreme Court, as I'll come back to in a second. But in south Africa, no judge, no matter how liberal-minded they may be, or however conservative-minded they may be, could simply refuse to carry into effect acts or provisions such as that because there was in South Africa no underlying Constitution. It was, to use in a manner of speaking, it was a Parliamentary democracy, as I've mentioned, a perversial democracy, again. And the fact is that as South Africa shows, a Parliamentary democracy carries with it the possibility of obnoxious and heinous Acts of Parliament being carried into law, and then being, having to be applied by the judiciary of the State. On the other hand, going back to the United States and back to the decision in Loving and Virginia, that was a case where, as I've said, the state of Virginia had legislated that interracial marriage should be illegal. Mr. And Mrs. Loving had got married in 1959. And they had been prosecuted for breach of that statute. And they were sentenced to one year in prison. And again, let me just... The judge who sentenced them to prison said the following, and this is 1959 in the state of Virginia, and I quote,"Almighty God created the races white, black, yellow, Malay, and red. And he placed them on separate continents. And but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix." That's 1959 in Virginia in the United States. Now, no South African Judge at the time could say even if they privately thought it what Chief Justice Earl Warren said in the Supreme Court when the case went on appeal to the Supreme Court. And let's just look at that. A photograph of the Lovings, Mr. And Mrs. Loving at the time of their appeal to the Supreme Court. And Earl Warren, famous Chief Justice, sat on the Warren Commission into the Kennedy assassination, et cetera, et cetera,"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Now, it's fair to say that the use of the phrase"free men" was singularly inappropriate when deciding on the right as he decided, as the Court decided for people to marry whatever race they might, whatever racial groupings or characteristics they might have. It's a shame he didn't use the word "free people". But there we are. Nonetheless, it is a famous landmark of the civil rights struggle in America, the decision in Loving and Virginia, which struck down the relevant statute. And indeed as a result, struck down all the other statutes mostly in the southern states of America, which had similar provisions. Just to pause on that for another second or so, in a rather less well known case in the United States decided three years earlier in 1964, a case called McLaughin and Florida, the state of Florida, the Supreme Court had struck down a Florida statute, which made it an offense for a, to use the language of the Act, a white person and a black person who are not married to, and this is a quotation from the Act which was struck down,"habitually live in and occupy in the nighttime the same room if they were not married". That Act was... A certain McLaughlin was prosecuted under this section and was found guilty. He appealed to the Supreme Court. His appeal was successful and two of the members of the Court in 1964 said, and I quote, they "could not conceive of a valid legislative purpose which makes the color of a person's skin the test of whether his conduct is a criminal offense or not." There was no possibility in South Africa of a court coming to a similar conclusion, even if the judge was of privately of that view. Now, the Acts from South Africa that I've so far referred to are just the tip of the legal iceberg created by the Apartheid State that came into power in 1948. Let me give you a few more examples. The Extension of University Education Act 1959 created a system of totally segregated universities. Throughout the 1940s, there were certain universities that were not segregated. For instance, Nelson Mandela went to the University of Witwatersrand, a famous university in Johannesburg in the 1940s. Under the Act I've just mentioned, that possibility was shut off for black people. It had now become an all white institution. The Reservation of Separate Immunities Act 1953, anodyne name, it wasn't an anodyne Act in any shape or form. It permitted the segregation of all public premises, vehicles, and services. Restaurants, cinemas, beaches, buses, trains, and so on, and so on. And order to make it enforceable as an Act, it had to criminalize human behavior. How did it do that?"Any person who willfully enters or uses any public premises or public vehicle or any portion there of or any counter, bench seat or other amenity or contrivance which has in terms of sub-section (1) being set apart or reserved for the exclusive use of persons belonging to a particular race or class, being a race or class to which he does not belong, shall be guilty of an offense and liable on conviction to a fine not exceeding 50 pounds or to imprisonment for a period not exceeding three months," and so on. Now, that dense language carries with it an awful lot of disastrous meaning. A famous photograph, or I should say infamous photograph from South Africa at the time showing two men leaving a public lavatory, one designated for black people, one designated for white people. If that man had gone down that set of stairs, then he would have been immediately in trouble under this particular provision and liable to be sentenced to a term of imprisonment for three months. The Group Areas Act 1950, another anodyne piece of legislation on the face of it. In no way anodyne by reality. It restricted the places in which, again, using the language of the Act, black or colored people were permitted to live or work. So under this title, there was mandated the forcible removal of tens of thousands of non-white families from their homes to segregated, newly segregated areas. The most notorious example of this was in Cape Town where a district of Cape Town called District Six was designated under the Group Areas Act a white area with the result that thousands and thousands of people, so-called colored people under the racial designation at the time, who'd lived there for decades and decades and made apparently an incredibly vibrant neighborhood. All were forcibly removed to miserably, miserable new shanty towns miles away from District Six. All their homes were flattened. And it was... And in their place were built blocks of flats for white people because it was a white area. Many, many photographs taken of the process. And here's one particular photograph of a so-called colored family leaving their home. And behind them, the bulldozers flattening District Six. Another Act, to so-called Natives Brackets Abolition of Passes and Coordination of Documents Act 1952. Again, another piece of very, on the face of it, anodyne phrase. But by that, a system was introduced, hated, absolutely hated, whereby every black person over the age of 16 had to be fingerprinted and furnished with a reference book, otherwise known as a pass, that contained various pieces of information about those people. And under the Act, a police officer was entitled at any time to require that person to produce their passbook. And a failure to produce it, again, constituted a criminal offense carrying with it a maximum potential sentence of one month in prison. Now, it'll be obvious from that survey of a few of the Acts of Parliament that created the Apartheid State, that its effect was to criminalize whole swayeds of human, of ordinary human activity. A black person who sat in a white only or designated white only restaurant, or part of a restaurant, was committing a crime. A black person who swam off a beach designated as only for white people was committing a crime. A black person who sat on a park bench which was designated for white people was committing a crime. And so across the country, notices appeared dictating behavior and threatening, whether expressly or impliedly, criminal sanctions for people contravening what the notices said. And here just a series of some quite well known images from the time."City of Durban under section 37 of the Durban Beach Bi-Laws, this bathing area is reserved for the sole use of members of the white race group." A bus for non-whites only. There are other examples of buses which says "whites only". And a famous photograph of the time, or infamous I should say, a bench. Literally, benches had printed on them, as you may be able to see there,"whites only" and then "slegs blankes" in the same phrase in Afrikanns. Now, all these laws, this whole panoply of legislation had to be administered. And the effect of such a deluge of legislation was to place the courts, and in particular the criminal courts, at the center of the administrative structure of apartheid. In order to maintain this institutional segregation, infractions of the law that created it had to be prosecuted and vigorously so. So in one year alone in the mid-1970s, there were over 380,000 prosecutions under the pass laws, one of the statutes that I mentioned a little earlier, the requirement to carry a passbook with you at all times. 380,000 prosecutions in one year alone under one statute. Now, the South African court system had enjoyed in the first half of the 20th Century, the 50 years or so up to 1948, a very high international reputation as a place of exceptional justice. Now, South Africa's legal system at the time was and still is an amalgam of English Common Law and Roman-Dutch Law. And the courts had a very long tradition of respect for what I've described in my first lecture as the rule of law. And the judges who were sitting there in the 19, who were sitting in their courts in the late 1940s now found themselves increasingly having to administer the new apartheid justice that had been imposed upon them. And they were not, at least for awhile, simply stooges of the system. Now, in my last lecture, I discussed the administration of criminal justice in the courts of the Soviet Union and the courts of Nazi Germany. And in those countries, criminal justice was largely a charade. Now, it's important to recognize that that was not the case in South Africa throughout the apartheid period. The courts continued to function in a recognizably fair way for a period of time. And the State itself, the State of South Africa, would have proudly proclaimed that it was a State in which the rule of law still persisted. And this presents a conundrum about the concepts of the rule of law, what actually it means, whether it's simply as a concept a procedural idea or whether it involves within it substantive rules about how the law should be. And that conundrum is summed up in an interesting passage from a book written by a Philosopher called Joseph Raz, which I'm going to quote here. Joseph Raz in a book from 1979 called"The Authority of Law" said this,"A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution," many of the attributes of apartheid in South Africa,"may, in principle, conform to the requirements of the rule of law better than of any of the legal systems of the more enlightened Western democracies... It will be an immeasurably worse system, but it will excel in one respect in its conformity to the rule of law... The law may institute slavery without violating the rule of law." Now, that's an interesting and rather uncomfortable analysis. But it carries with it the question as to, well, what does the rule of law mean? Does it mean simply a series of procedural provisions whereby you get a fair hearing, or does it carry with it wider ideas about the dignity of the person and the liberty of the person against the State? Now, it's been remarked many times that South Africa during this time presented a paradox. The apparitors of apartheid and the evermore oppressive and Draconian laws enacted to maintain the segregation and the subjugation of the majority black population, meant that South Africa required increasingly the hallmarks of a police State. Torture and extrajudicial killing was widely practiced by State operatives during the period of apartheid. Yet, at least for some part of the rule of the National Party, which ended as many of you remember in the early 1990s, the country's legal system remained in tact. Most of its judges stayed broadly independent and its procedures preserved, at least the semblance of fairness. The respect for the rule of law, which South Africans shown the first half of the 20th Century, didn't simply disappear in 1948. Now, despite the standing that the Court, despite that standing, that high standing, the courts were obliged to apply the apartheid legislation that then flooded the statute books. Some judges, it's fair to say, did their best to blunt its full sting. But as we've seen, the courts lacked the legal powers to strike down laws that they thought offended against fundamental principles of human rights. But as time went on, all too often we find the judges seemed to show a craven passivity in the face of monstrousness. In my first lecture, I discussed some of the fundamental attributes of the rule of law, which travel far wider than Professor Raz's rather thin conception of what the rule of law might be. Overarching principles concerning liberty and judicial oversight, which although they cannot be deployed to set aside Parliamentary statutes, could be used as interpretive devices to make legislation so far as possible consistent with the principles of the rule of law. But what we see time and again during the Apartheid Period is judges putting aside those principles to give full reign to what they discerned to be the legislative intent of the Apartheid State. Let me give you one notorious example. In the late 1950s, a proclamation was issued under the Group Areas Act whereby the City of Durban, huge city in South Africa, is now divided up via a sort of zoning mechanism into white areas and, using the language of the time, Indian areas because Durban had and still has a very large population of people who had come originally from India to South Africa in the 19th Century. So this zoning took place in Durban pursuant to the Group Areas Act. And an number of Indian citizens challenged the zoning. They said, well look. The zoning means that hey presto the white population have been allocated all the finer parts of the city. And we've been allocated all the less fine parts of the city and the poorer parts of the city. This can't be right. And they said, look. The Group Areas Act itself provides for segregation between races. But it doesn't say the whites get the nice areas and the non-whites get the non-nice areas. And they had a point. They were trying to use the legislation for their own benefit, and quite rightly so. Now, the matter went to the main Appeal Court of South Africa. And the judges of the Appeal Court accepted that the Group Areas Act did not expressly say, and zoning should be undertaken so that the white population are allocated the nicer parts of a given urban area. But they held, nonetheless, that the zoning was legal. And they dismissed the challenge. And what did one of the judges say? The case is called The Minister of the Interior and Lockhat."The Group Areas Act represents a colossal social experiment and a long term policy. It necessarily involves the movement out of group areas of numbers of people throughout the country. Parliament must have envisaged that compulsory population shifts of persons occupying certain areas would inevitably cause disruption and within the foreseeable future, substantial inequalities. Whether all this will ultimately provide to be," proved to be, a mistake there,"for the common weal," for the common benefit,"of all the inhabitants is not for the Court to decide." So in that weasel phrase,"Parliament must have envisaged...," the Court gave its blessing to a gigantic population population removal scheme that, as one commentator described, resulted in untold human sorrows. It shows an interpretation, which as it must have been well aware, would have enormous and serious human consequences. I want to explore this paradox a little further. South African justice generated judgements. Judges wrote down judgements. And those judgements were printed in books called Law Reports. And we have them in England. We have thousands of Law Reports. And in South Africa at the time, you can find many Law Reports crammed full of reasoned and learned discussions written in measured legal language, very familiar to English lawyers, of legislation, such as the Group Areas Act, which seems to emerge from a kind of nightmare. So you have this extraordinary paradox of judges using their ultra civilized legal language, grappling with ultra non-civilized legislation without kind of blinking, without sort of saying, well hang on. This is just monstrous what we are having to interpret and we're to actually carry into effect. So you have these unlearned disquisitions about, and I'm going to give you three examples of, on the face of it, outrageous legislation without anyone seeming to, any of the judges seeming to actually bat an eyelid. Let me give you a few examples. In 1959, a lawyer employed by the firm of Mandela and Tambo called Godfrey Pitje... Mandela and Tambo, you may remember that Nelson Mandela amongst many of his other great achievements set up a law firm in Johannesburg, the first black owned law firm in Johannesburg, and ran it for many years until he was sentenced to prison and was unable obviously to run it thereafter. One of his employees went to a courtroom in order to appear in a court. And there was a table in the courtroom which said, "Blacks only." And he said, "I'm not going to sit at this table. Why should my client be prejudiced in this way that his lawyer has to sit in some separate table. I'm going to sit at the main table and present my case on behalf of my client." Very brave act. So he did so and the Magistrate said,"No, you must sit at that table, which is allocated for you, Mr. Pitje." And he said, "I'm not going to do that." And the Magistrate sentenced him to prison for contempt of court. And he appealed and said,"It was improper for me to be sentenced for contempt of court." And it came before the Appeal Court. And his appeal was dismissed. The Chief Justice saying as follows, and I quote,"It is clear that a practitioner would in every way be as well seated at the one table as at the other, and that he could not possible been hampered in the slightest in the conduct of his case by having to use a separate table." You might think that's rather missing the point in a pretty grand way. But the judge in coming to that conclusion and upholding Mr. Pitje's sentence for contempt of court referred to the Reservation of Separate Amenities Act, the one I referred to earlier, and said well, under that Act, there could have been a designation in the courtroom of a white table and a black table. It hadn't actually happened but because there could have been such a designation, therefore, that the sentence of the finding of contempt of court was upheld. Another example, in 1963, Albie Sachs, who some of you will remember the name, is still alive and later became a judge of the Constitutional Court of South Africa after the Apartheid State had been dismantled. In 1963, he is arrested under a particular law, which allows for people to be detained for up to 90 days without access to a lawyer and without being charged with any offense. It was at the time perceived to be a truly monstrous piece of legislation. Things got worse, as I'll come onto. Now, Mr. Sachs, Albie Sachs says, who's sitting there alone in his prison cell, not being charged, no access to the world, is not entitled to consult a lawyer says,"Can I have some books so I can read?'Cause otherwise, I'm just staring at the ceiling. And can I have some writing material so I can write." And the police say, "No you can't." So he brings a claim before the Court saying I was unlawfully deprived of reading and writing materials. Now, the general law in South Africa is that a prisoner whose been duly sentenced and is in prison serving his or her sentence is entitled to have reading and writing materials, as opposed to just sitting and staring at the ceiling or the wall. He brings his claim and the Court has to decide this question. And the Acts of Parliament is silent on the question. It doesn't say whether somebody in his position is entitled to be given books and newspapers or notepads and pens. So the Court has to interpret what the law should be. Now, the normal principle of the English Common Law, and indeed the Roman-Dutch Law of South Africa, is that where a statute departs radically from fundamental principles of law, i.e., liberty of the person, et cetera, et cetera, then it should be presumed to have made no further inroads into the liberty of the person, the subject or the citizen, than has been expressly provided for. Now, on that basis, the Act does not say and the police officer's entitled to deprive somebody detained under this Act of newspapers, pens, books. So the answer should have been, of course, Albie Sachs is entitled to reading material. But no, by 1964, the judges had become so passive before the Apartheid State and the purposes of apartheid legislation that they decided that by implication Parliament must have decided that people in Albie Sachs's position should be deprived of that material on the basis that it would be contrary to the legislative intention to, and I quote,"relieve the tedium of their detention with reading matter or writing materials." The idea being, so they decided, was that this Act of Parliament was intended to get people to talk, i.e., provide information to the police. And if that person was allowed to read "War and Peace", then they would be disinclined or disincentivized from talking, whereas if they're sitting there staring at the ceiling and being told if you talk, if you provide information to us, then we'll release you, then they'd be more inclined to do that if the alternative was simply the blank, the sort of metaphorical blank wall. A case I should say that has gone down in infamy as one of the most appalling decisions of the South African courts. Let me give you a third example. A man called Ivan Schermbrucker, who was a communist, and a very, very brave communist, is arrested and held in incommunicado a year later under the same statute. Now, word gets out to his wife that he is being subjected to brutal interrogation techniques, which are no doubt true because that's what was being done at the time in South Africa. She files an application for an injunction against the police to stop them interrogating her husband in using these brutal techniques. The police deny it, of course. Now, in order to prove her case, she asks the Court to order that her husband be produced in court to give evidence about his treatment in the prison cell, or rather in the police station where he's being held. Now, can you imagine a court that would actually say, "No, we refuse to hear the evidence of a person who is allegedly being brutalized." It seems impossible to imagine a court coming to that conclusion. But, no. In another famous case decided in the Court of Appeal, the Court decided that it would be contrary to the implication of the Act to allow a person allegedly being brutalized through a form of torture to be produced at court because it would, again, undermine the legislative intention, which was total incommunicado isolation to induce you to speak. To allow you to be brought to court to speak about and give evidence about your own treatment would be contrary to the implication of the legislation. So Mrs. Schermbrucker's application was dismissed in a decision in 1965. Now, what these examples show, I think, is that although there were Acts of Parliament, which the Court was obliged to adhere to, nonetheless, there are vast tracts of where the Act of Parliament is silent to where you have those sort of areas have to be filled by judicial interpretation and judicial discretion. And the courts could have decided to go down one route. Instead, they decided to carry into effect what they perceived to be legislative intention, and fill the gaps with their own effectively pushing further forward what they perceived to be the Apartheid Parliament's maligned intentions. And that's the way that cultures, the culture of a State, can change where judges have, as they do, immense power to decide what the law should be where Parliament has not spoken. And it typically can go one way or the other. And it can change the culture of a country in the way it goes. And in South Africa, it certainly did change the culture of the country. Now, increasingly, the judges of South Africa were handpicked by the government on the basis of their political affiliation, so as to make the judges evermore positive about the Apartheid South Africa and evermore willing to do what, the government's bidding. Now, nonetheless, and this is the other side of the story that I wanted to come on to, a Minister of Justice could ruefully say during the Apartheid Period that after he had appointed some particular policeman, who he assumed would be, do the government's bidding while on the bench. But once they've been installed on the bench, they quickly came to convince themselves that they'd been appointed on merit alone rather than on the basis of they were going to do what the government told, what the government said. So that one could during the Apartheid Period, in criminal cases especially, one could as a person being prosecuted as a dissenter get some semblance of a fair trial. And when I say a fair trial, I mean a trial almost always before a judge. Because although until 1969 juries technically existed in South Africa, they were finally abolished in 1969, most black defendants would choose judge only trials rather than jury trials on the basis that the juries that they would face would be all white juries. And experience showed that you had a better chance of being acquitted by a white judge than by an all white jury because all juries, as I say, were white. Now, you'll remember that the apartheid regime generated many brave dissenters who worked to resist and undermine the State. And throughout the 1950s, the ANC instituted a series of peaceful protest campaigns. And this lead to one of the most remarkable trials of the 20th Century, the so-called Treason Trial, which involved the prosecution by the State of 150 of the leading members of the ANC and the South African Communist Party. All prosecuted for treason on the basis that they were allegedly plotting the overthrow of the State by violence. This was the authority's bold attempt to destroy in one swipe the anti-apartheid leadership. And the defendants who were brought to court read like a roll call of the great names of the resistance movement. Nelson Mandela, Walter Sisulu, Helen Joseph, Armed Kathrata, Joe Slovo, all part of the 150 defendants who were brought to court. Now, the case itself lasted over five years. The trial within the larger wider proceedings, three whole years. And this takes me back to where I started, the old synagogue in Pretoria because it was in the old synagogue in Pretoria that Mandela and his co-defendants found themselves between 1958 and 1961 on trial. Everyday, they were on bail astonishingly, and everyday they would have to travel from their homes in Johannesburg up to Pretoria to sit in the old synagogue. Now, by this stage, the old synagogue was very different to the beautiful building that I showed you at the beginning. The Ten Commandments that had been placed on the wall have been boarded up. Everywhere there were the signs of segregation. So there were two separate entrances. One that said Europeans. One that said non-Europeans. The public gallery, the lavatories, the witness rooms were all divided between Europeans and non-Europeans. The only place in the courtroom where apartheid or segregation did not take place was on the witness stand. There was only one witness stand. And it was on that witness stand that everyone achieved a degree of equality. Because when Nelson Mandela went onto that witness stand or any of the other defendants during this immensely long period, they were equal to any other witness and they could speak freely to the judges. They could answer questions and their evidence could be taken down and broadcast, as it was, across the world. And Mandela's evidence during this trial was... You read the Times of the time, the New York Times, the Guardian was, not word for word, but was actually conveyed. And it was a marvelous performance I should say on the witness stand. Now, there were... This was a trial where there was some profound oddities. The Prosecutor was a man called Oswald Pirow. He had been a Minister of Justice in a government before the war in the 1930s and had been a profound admirer of Hitler. He'd visited Hitler twice in Germany and remained a ardent exponent of racial segregation. So here he was, a former Nazi sympathizer, prosecuting 150 ANC members in a former synagogue. And the defense lawyers on the other side of the courtroom, who were made up of some of the great figures of the time, were not predominantly Jewish, but there were some great Jewish names in the, amongst the Defense Advocates. I'm afraid they were all white, the Defense Advocates, because at the time, there was only one black advocate in South Africa and he was one of the defendants on trial. So he was in court, but as a defendant rather than as a lawyer. So those Jewish defend, those Jewish lawyers who are acting for the defense, there was a team of about six lawyers acting for all the dozens and dozens of defendants. Most of their parents or grandparents had fled persecution in Russia and East Europe to come to South Africa. And they were now fighting a different form of persecution in South Africa. And one of the lawyers acting was a man called Sydney Kentridge, whose then in his 30s, and now celebrating this year his 100th birthday, the last of the lawyers who acted in the Treason Trail who's still alive. And he's a friend of mine. And I was looking through his archive and I came across these two photographs, very blurry photographs. And I said, "Sydney, what are these?" He said, "They were sent to me anonymously during the trial." Somebody had illegally photographed from the public gallery the lawyers and sent them to him. And they're very blurry photographs. But what they... Quite apart from their sort of interest as historical documents, what they show is that South African justice at the time was not a complete charade. We see in action a whole team of defense lawyers with their papers, and their wig and band, or rather a wig with their bands and their gowns in action defending their clients. Now, the trial lasted for three years, as I say. There were three judges, all of course white. Two of them quite closely associated with the government and its ideology. Now, you'd have thought that in the atmosphere at the time there could be only one result, conviction. After all, the judges knew full well that the purpose of this prosecution was to cut off the head of the ANC opposition in one fell swoop. They knew what the government's purpose was. This was a political prosecution. And yet, having heard evidence over three years, they decided unanimously to acquit every single one of the defendants of the charge of treason, a remarkable outcome and still rightly proclaimed as one of the great landmarks of resistance to the State. Let me show you a couple more photographs, which taken with the old synagogue. This is inside. This is the old public gallery where, so I'm told, where the female worshipers would have worshiped, a different form of segregation, I suppose, before 1952 when it ceased to be consecrated. So that's a photograph of, wonder photograph ten outside the court. You can see the arches of the entrances to the synagogue. There, of course, is Nelson Mandela exuding his usual charm. He's been on trial now for two years. Everyday, he has to go up to court, still keeping his morale up. And then finally, a photograph, and a rather blurry photograph, of the main defense counsel. A man called Isie Maisels who is being brought out of the courtroom in triumph. This is on the day of the acquittal in March 1961. And you can see the old entrance. And you can see just about, it says, "Europeans only", except that man's fist is a occluding the word non. And Maisels has come out of court in the non-European's, even though, of course, he was a European, as a sign of respect for his clients. Great, great photograph, I think, from that period. Now, I want to just refer to two more cases, which were tried in the old synagogue, which provide a slightly different angle on racial, on social, on criminal justice in the Apartheid Period. 10 years later, 1970, Winnie Mandela is one of the leading figures in the freedom struggle. Her husband has now been in prison for eight years on Robben Island. She is a leading member of the ANC, still free, not in prison. The State swoops again in 1970. She's arrested alongside 21 of her associates, other members of the ANC. She's arrested under something called the Terrorism Act, which has been enacted a few years earlier. Now, the Terrorism Act partakes of the Act I mentioned a little earlier, but goes even further. I'm not going to read that all out now. But essentially, under the Terrorism Act, it allowed the police to arrest without charge and hold a person completely incommunicado for as long as they thought that some useful purpose would be served by their continuing detention. One of the most monstrous pieces of legislation of the 20th Century, really, or the latter part of the 20th Century. It allowed people to be effectively hidden away and sequestered from the world for as long as the police liked. Hence, "No court of law shall pronounce upon the validity of any action taken under this section." So you couldn't even go to court and challenge your detention. The Court would prevent it from inquiring into it."No person, other than the Minister or an officer in the service of the State acting in the performance of his official duties, shall have access to any detainee." So no lawyer was entitled to see their client, no family member, no friend. You were entirely shut off from the world. Winnie Mandela was held under this section and for 491 days held in isolation and being tortured, it's fair to say. She wrote an extraordinary memoir of her period in prison at this time. And yet, she is prosecuted for sabotage, another form of treason. And she goes before... Finally, she's released to be prosecuted. Goes before an Afrikaan Judge, a white Afrikaan Judge. And she is, again, acquitted because true to his judicial oath, even though the State obviously desperately wanted her conviction, she was the great figure of the Anti-Apartheid Movement at the time, a judge acquitted her. The final, and my final section so to speak is the final case that was decided in the old synagogue. We're now in 1977. And you will recall... Many of you will recall the name of Steve Biko, one of the great leaders of the 1970s. He is often thought of as one of the people who would have had a huge influence on a post-apartheid South Africa had he lived. Because in 1977, he is arrested and brought to a police station and beaten to death, putting it bluntly. There is then a inquest into the circumstances of his death. And for 13 days, there is a public hearing about what happened to him. How had he gone from a healthy, young man who went into police custody on one day and 25 days later, he's dead? How could this have happened? Now, for 13 days, police officers parade into the witness box in the old synagogue to give evidence. And doctors who "tended him", I mean, they didn't tend to him in the slightest, are cross examined and they come into the witness box as well. And prison guards come in and they are cross examined mercilessly by Sydney Kentridge, the man I mentioned a little earlier. Now, and the case is covered by newspapers around the world. There are journalists from the Washington Post. There are journalists from Le Monde, from the Times, from the Guardian, from the Telegraph, from all sorts of newspapers. And after 13 days of evidence, the Magistrate, who sat there quietly for 13 days, reads out his verdict. And it's a verdict that takes two minutes to read out. And I'll read out to you the last sentence."The evadable evidence does not prove that the death of Steve Biko was brought about by any act or omission involving or amounting to an offense on the part of any person. That completes this inquest." So on one analysis, and obviously the main analysis, a (blows nose) vast miscarriage of justice. Because the evidence was just quite clear that he had been the victim of a State assassination, effectively. Now, a perverse verdict and one of the most tragic and shocking images of that period is Biko's, Steve Biko's widow, coming out of the old synagogue and saying again and again,"What, no one to blame, no one to blame." And there's a moving photograph of her. But we find this there's still a paradox at work. Even though the inquest came to a perverse and wrong verdict, nonetheless, it had taken place in a courtroom, which was open to the public, open to journalists, and which permitted counsel acting for the Biko family to challenge in a vigorous and sustained way the evidence of State operatives. The process was by enlarge a fair one, even if the outcome was a profoundly unfair one. And still, even though the outcome was an unfair one, the process itself allowed for the world to see in the most vivid way the inequities of the Apartheid State. And it was a case where almost process won against verdict, against substantive outcome. Let me come to my final slide. Here we have a recent photograph of the, of the old synagogue. You remember the lovely variations in brick color, all now whitewashed over in public wor... Minister of Works creams, as it's been described. You see the... It's now shut up and boarded up. After the Biko inquest, the synagogue was put over to other purposes. It ceased to be a courtroom and is now in a sad state of desolation. Various ideas have been put forward for what uses it could be put to. Cultural uses, educational uses, possibly as a kind of memory to the past. It stands now in this rather tragic sense, the state of desolation. But nonetheless, it kind of seems to me to have a powerful symbolic force still as a symbol both of the oppression of that period, but also, some of the minor legal triumphs that the South African legal system still permitted, even in the darkest period of the apartheid rule. My word, I've gone on far too long. I've been warming to my theme rather too much, Simon. Thank you so much for listening.(audience applauding)