Taking Apartheid to Court

By Bruce W. Nelan

In the conservative farm belt of South Africa's eastern Transvaal, Jotham Zwane, a local black leader and successful hauling contractor, was becoming a problem for whites in neighboring Amsterdam. After leading a protest in his township, he was arrested and released. But later, when his home and three trucks mysteriously burned one night, he was rearrested, convicted of being "idle and undesirable" and banished from the area. The local authorities then moved to seize his land and what was left of his house.

For most black South Africans, such a story would have ended in forcible dispossession. In Zwane's case, his despairing family sought help from a legal-aid organization in Johannesburg called the Legal Resources Center. LRC lawyers obtained an order against the authorities and won permission for Zwane to return and rebuild his home and business.

Such outcomes are increasingly common as South African blacks call on legal activists to challenge the apartheid system, often with help from groups and lawyers in the U.S. Encouraged by their success, more and more lawyers and organizations are entering the struggle. After lengthy legal battles this year, the Alexandra Five, charged with treason for trying to create autonomous local government structures, were acquitted, and last year the Sharpeville Six, sentenced to hang for their part in the murder of a black township official, obtained commutations of their death sentences. Perhaps the biggest advance is the recent working paper of a government-appoint ed law commission, which has proposed a South African Bill of Rights, an end to apartheid laws and an equal vote for all South Africans.

Few lawyers expect such a complete transformation overnight. The campaign to provide blacks with legal defenses began after World War II, when both African National Congress President Oliver Tambo and nationalist leader Nelson Mandela began their careers as lawyers. The fact that Tambo is in exile and Mandela in prison illustrates how perilous that course was. The LRC had its origins in the aftermath of the Soweto uprising of 1976. The brutal government crackdown following the protest prompted a group of liberal lawyers and professors to try to set up a free legal-aid service for blacks. U.S. lawyer Jack Greenberg, then head of the NAACP Legal Defense and Educational Fund, helped design a program. With money mainly from American foundations, the LRC was founded in 1978. Since then, it has grown from a staff of three full-time lawyers with a $100,000 budget to 30 lawyers, half of them white, and a budget of $2 million.

The LRC's success has spawned a network of allied organizations. Among them: the Pretoria-based Lawyers for Human Rights, which presses private law firms to take public-interest cases; the Black Lawyers' Association and its offshoot the Legal Education Center in Johannesburg; and the Institute for Applied Legal Studies at the University of the Witwatersrand. All participate in a thriving exchange of students and professors between the U.S. and South Africa. Says John Dugard, head of the Institute for Applied Legal Studies: "These days, even high-court judges are making study trips to the U.S. Our legal education system is looking more and more to the U.S. experience."

But even those American legal scholars who were instrumental in helping create the South African legal-aid programs do not see them alone as an effective antidote to apartheid. Last week more than 200 black activists took another approach by opening what they referred to as a "defiance campaign." They marched to eight whites-only hospitals, where they demanded and received treatment. Greenberg, now a professor and dean at Columbia University, believes a wholesale change in the country's constitution is needed to eliminate white domination. Judges in South Africa do not have the power to strike down laws as unconstitutional, so Parliament can and does deprive citizens of their rights by passing statutes that the courts are unable to reject. Says Julius Chambers, Greenberg's successor at the NAACP Legal Defense and Educational Fund: "The law has provided some limited protection, but you're not going to have any major breakthroughs until you have a changed constitution."

Still, South African civil rights lawyers praise even small gains in a country that has detained 54,000 people without charge in the past ten years. "The message we take into the black communities," says LRC lawyer Mohamed Navsa, "is, 'We are here to tell you that you do still have some rights, and we will defend them.' "

Antiapartheid activists are convinced that the increase in legal challenges has changed public perceptions and laid a basis for the law commission's extraordinary working paper. The final report will be presented to Parliament early next year and, while there is no likelihood that the government will embrace the paper, the debate will give new legitimacy to civil rights workers, who are too often seen as dangerous leftists in South Africa. State Judge Jack Etheridge of Atlanta, who recently spent seven months in Johannesburg, insists that the best counsel is to "test the government"in court. As the legal activists know better than most, there is no quick fix for South Africa. But they have made a start.

With reporting by Peter Hawthorne/Johannesburg and David Muhlbaum/New York