Law, Order and Liberty

Essays in Honour of Tony Mathews

Edited by
Marita Carnelley and Shannon Hoctor

Assisted by Tarryn Winchester

iii
Published in 2011 by University of KwaZulu-Natal Press
Private Bag X01
Scottsville, 3201
South Africa
Email: books@ukzn.ac.za
Website: www.ukznpress.co.za

© 2011 University of KwaZulu-Natal

All rights reserved. No part of this publication may be reproduced or transmitted in any
form or by any means, electronic or mechanical, including photocopying, recording, or
any information storage and retrieval system, without prior permission in writing from
the publishers.

ISBN: 978-1-86914-214-8

Editor: Ria de Kock

Proofreader: Lisa Henman
Cover design: Flying Ant Designs

Printed and bound by Interpak Books, Pietermaritzburg

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 Contents

Preface vii
List of publications by Tony Mathews ix

PERSONAL TRIBUTES 1
1 Tony Mathews and criticism of the judiciary 3
John Dugard
2 The Dutch uncle 11
Marinus Wiechers
3 Policing the conflict in South Africa: Professor Anthony
Mathews and the Pietermaritzburg conference of June 1991 15
Avrom Sherr
4 My father, Tony Mathews 17
Catherine Mathews

LEGAL ESSAYS 21
5 Securing the rule of law 23
Hugh Corder
6 Tony Mathews and the rule of law 43
Dennis Davis
7 The rule of law and the principle of legality in South
African administrative law today 55
Cora Hoexter
8 Playing catch-up: The South African Constitution,
administrative law and jurisdictional facts 75
Clive Plasket

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9 State privilege in a democratic South Africa 101
P.J. Schwikkard
10 The darker reaches of government: An environmental
perspective 121
Michael Kidd
11 Some tentative thoughts on the counter-majoritarian
dilemma in the South African context: A constitutional
and political conundrum in the process of judicial review 139
George Devenish
12 Challenges in increasing access to justice in the next decade 169
David McQuoid-Mason
13 Children locked up: Towards detention as a measure of
last resort 207
Ann Skelton
14 Re-imagining justice from the bottom-up 237
Jan Froestad and Clifford Shearing

CENTRE FOR CRIMINAL JUSTICE 251

15 The legacy of Professor Mathews and the challenges of
applied legal research in the twenty-first century 253
Winnie Kubayi

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 Preface

Tony Mathews was born in Pretoria in 1930, grew up in Louis Trichardt

and studied in Natal. After obtaining his BA he practiced as an attorney for
some years.
In 1959, at the age of 29, he took his LLB with distinction at the
University of Natal after which he joined his alma mater as a lecturer. In
1961 he was promoted to senior lecturer and a few years later, in 1965, to
Professor and Head of the Department at the Durban campus. During his
years at the Durban campus he was Dean of the Faculty of Law for 12
years. In 1983 he relocated to the Pietermaritzburg campus of the same
university and was appointed to the James Scott Wylie Chair of Law.
In 1971 he became the first recipient of a PhD in law at the University
of Natal for his treatise Law, Order and Liberty in South Africa. The document
was published in 1972 and widely praised. In 1986 it was republished in
radically revised form under the title Freedom, State Security and the Rule of
Law and again hailed as a work of superb, rigorous and meticulous
scholarship. He had established a reputation as one of the country’s leading
legal academics. He has written with verve, courage and imagination on
criminal law, the law of property and in particular constitutional law. Apart
from the two books mentioned, Mathews authored a book on access to
information, a comparative study called The Darker Reaches of Government,
along with a wealth of articles in academic journals (a list is included in
this book).
In addition to his writings, Tony Mathews held visiting positions at the
Universities of Harvard and Cambridge and the Florida College of Law.
He was a member of the editorial board of the South African Journal on
Human Rights from its inception and played a significant role in the South
African Institute of Race Relations (national executive: 1973–8 and vice-
chair: 1980); Lawyers for Human Rights; as well as the Society of University
Teachers of Law (of which he was President from 1974–5).

vii
 Professor Ellison Kahn, at the 80th Anniversary Dinner of the School
of Law in Pietermaritzburg in 1990, remarked: ‘It is not only Tony’s great
height but also his commanding intellect that makes me feel that he is
entitled to look down on me when I stand next to him’.
As the contributions in this long-overdue tribute make abundantly clear,
Tony Mathews’ principled and powerful critique of the apartheid laws that
negated human rights and eviscerated the legitimacy of the South African
legal system, remains as a monument to both his moral courage and his
legal brilliance. His compelling defence of the rule of law and his un-
remitting championing of the cause of human rights inspired a generation
of law students and practitioners in the darkest days of apartheid. His
untimely death just prior to the inception of constitutional democracy in
South Africa deprived this nation of one of its most incisive legal minds.
Yet, as the essays which follow so clearly demonstrate, he has left a significant
legacy. We hope that this tribute will help to remind us of the debt we owe
to Tony Mathews, and to rouse us to spiritedly defend the values that he
upheld with such clarity and conviction.

Marita Carnelley and Shannon Hoctor

viii
xiv
 Tony Mathews and criticism of the judiciary 1

PERSONAL TRIBUTES
2 Personal Tributes
 Tony Mathews and criticism of the judiciary 3

Tony Mathews and criticism of the judiciary

John Dugard†
Professor of Law, Centre for Human Rights, University of Pretoria

It is a privilege to be able to write on the legacy of Tony Mathews. I first

met Tony in 1961 when we were jointly responsible for the teaching of
Roman Law II at the University of Natal, he in Pietermaritzburg and I in
Durban. At that time our discussions were primarily devoted to Roman
Law, a subject that we both cherished; but we did reflect on the direction
that South African law was taking. In 1963 I left Natal and spent two years
studying at the University of Cambridge before returning to the University
of the Witwatersrand (Wits) in 1965. During my stay in Cambridge much
had happened, the security laws had been tightened, the Rivonia trial had
taken place, and the judiciary had spoken on the interpretation of the security
laws. I soon discovered that Roman Law was no longer Tony’s primary
interest. He had other concerns.
It is strange to recall that fifty years ago criticism of the judiciary was
virtually unknown in South Africa. By criticism, I mean real criticism,
criticism that questions the integrity and impartiality of the judiciary. Of
course, it was always possible for legal scholars to criticise a judge’s
interpretation of a statute, application of the common law or findings of
fact in a polite, respectful manner that questioned his (for at that time there
were no women judges) knowledge of the law, legal reasoning or fact-
finding. Even so, such criticism was largely confined to the safe fields of
private law and commercial law and was generally laced with expressions

† BA LLB (Stell) LLB (Cantab) Diploma in International Law (Cantab) LLD (Cantab).

3
4 Personal Tributes

of respect for the learned judge who had erred. Questioning the role of
the judge in society was unacceptable as judges were seen as neutral declarers
of the law and finders of the facts. No one dared ask whether the judges,
by their decisions, lent credibility to the apartheid legal order.
Respect for the independence and impartiality of the judiciary was an
essential component of the apartheid state. While the government was
prepared to accept that its exercise in social engineering, that resulted in
inequality and repression, was controversial and perhaps at odds with South
African legal traditions, it was determined to foster the belief that the
judiciary was beyond reproach and could be relied on to administer justice
fairly and impartially. Questioning the role of the judge in apartheid society
was taboo. Legal scholars, editors and publishers knew this.
The turning point came in 1966 with the publication of an article in
the South African Law Journal,1 (SALJ ) titled ‘The Permanence of the
Temporary: An examination of the 90- and 180-day Detention Laws’ by
Tony Mathews and Ronald Albino (Professor of Psychology at the
University of Natal and a friend of Tony). In this article the authors
examined the manner in which judges had interpreted the 90-day2 and
180-day3 detention laws with little regard for the serious mental and physical
consequences of in-depth interrogation in solitary confinement authorised
by these laws.4 The theme running through the article was that judges had
deliberately chosen the interpretation most favourable to the government,
and in so doing had ignored the fundamental principles of the common
law relating to individual liberty. There was no suggestion that the learned
judges, particularly members of the Appellate Division, had merely ‘erred’.5
On the contrary, judges were accused of intentionally endorsing the security
laws in their harshest form.6 Both the partiality and the integrity of the
judges were put in question.
The article appeared in the SALJ edited by two of South Africa’s most
prominent academic lawyers, H.R. (Bobby) Hahlo and Ellison Kahn. The
decision to publish was theirs alone – as in those days the censorship
inherent in the refereeing or reviewing of law journal articles by anonymous
reviewers was unknown.7 Hahlo and Kahn were politically ‘neutral’ and
had previously shown the greatest respect for the judiciary in their editorial
policy. Their decision to publish was not an easy one as they were fully
aware of the likely consequences. But to their credit, principle prevailed.
Subject to some changes, discussed with the authors, they agreed to publish.8
 Tony Mathews and criticism of the judiciary 5

Other unsung heroes in the decision to publish the Mathews and Albino
article9 were Douglas Duncan and George Lawrence of Juta, the publishers
of the SALJ. Hahlo and Kahn consulted their publishers and warned them
that there might be serious consequences. Unperturbed, Duncan and
Lawrence agreed that publication should not be withheld. The consequences
for Juta were indeed serious. I have been reliably informed that on the
advice of Chief Justice L.C. Steyn, Juta was denied the contract for the
publication of the South African consolidated statutes. Instead the contract
went to Butterworths, which throughout the apartheid era was careful not
to publish legal materials critical of the governing regime.10 Juta was
undeterred by this action or by the further less than subtle threats by the
Department of Justice to restrict its purchase of legal materials published
by Juta. On the contrary, it allowed the editors of the SALJ a free hand in
their publishing policy and soon afterwards published Tony Mathews’ Law,
Order and Liberty in South Africa (1971).11
The article by Mathews and Albino12 had been carefully written and
more carefully edited. It violated no law and judges rightly believed that it
did not constitute contempt of court – as that concept was understood
before the Appellate Division’s decision in S v Van Niekerk.13 Consequently
the response of the judiciary was political. In 1967, at a dinner sponsored
by the Law Faculty of the University of South Africa (UNISA), Chief
Justice L.C. Steyn expressed regret at the ‘intemperate, derogatory language’14
of the court’s critics and pleaded for a neutral approach to the judicial
function.15
Tony Mathews’ article16 heralded a new relationship between academics
and the bench. It encouraged academics to examine judicial decisions on
the interpretation of the security laws critically and with new vigour; and it
encouraged judges to plan new strategies to curb criticism of the judiciary.
Legislation was out of the question but an expanded concept of contempt
of court was not. Academics, and the editors of the SALJ, were compelled
to consider every word carefully when it came to criticising the judiciary in
the field of the security laws. Particularly close attention was paid to
Mathews’ Law, Order and Liberty in South Africa, which appeared in 1971.17
But this carefully written scholarly work, however devastating it might be
in substance, could not be faulted in law.
The mood of the judiciary was evident in the response of Chief Justice
L.C. Steyn to my inaugural lecture of 1971,18 in which I explained pro-
6 Personal Tributes

executive decisions in the field of race and security in terms of an inarticulate

premise based on prevailing white social prejudices.
At a Law Teachers’ Conference at Buffelspoort, in the Magaliesberg,
Chief Justice L.C. Steyn used the opportunity, as guest speaker, to say that
I (although not mentioned by name) had narrowly missed prosecution for
contempt of court because I had argued that judges, in their pro-executive
interpretation of the race and security laws, had been guided by an
inarticulate premise, and not by intentional bias. In short, had I said that
judges had intentionally, rather than negligently, displayed partiality in their
decision, I would have been prosecuted.
Barend van Niekerk was not so fortunate. Although Barend’s first
language was not English, he loved the richness and grandeur of the
language. He was a flamboyant writer and speaker who preferred bold and
colourful language rather than the constrained and careful language of the
lawyer. At Wits he was protected by his friend Ellison Kahn,19 who ensured
that his intemperate language was excised from what he wrote in the SALJ.
Consequently, he escaped conviction on a charge of contempt of court for
suggesting racial bias in the imposition of the death penalty in 1970.20
Without Ellison Kahn to protect Van Niekerk against his own choice of
words, he was less fortunate. In 1972, at a public protest meeting, in the
Durban City Hall, against the implementation of the detention-without-
trial laws, he castigated lawyers and judges for their failure to condemn the
Terrorism Act (which allowed indefinite detention without trial)21 and called
upon judges to ‘stand up more dynamically in the defence of the hallowed
principles of the rule of law’22 and ‘kill’23 the Terrorism Act24 by refusing
to admit evidence ‘procured under those detention provisions’.25 For this
speech Van Niekerk was charged with contempt of court for scandalising
or insulting the courts and for seeking to prejudice the outcome of cases
in which the evidence of detainees was in issue.26 He was convicted by
both the Durban and Coast Local Division and the Appellate Division
of contempt of court on the ground that his call to judges to deny
creditworthiness to the evidence of detainees tended to prejudice the
administration of justice in proceedings before the courts.27
Not all judges responded to the 1966 article by Mathews and Albino
and the legal proceedings against Van Niekerk in the same way as L.C.
Steyn, Ogilvie Thomson CJ (who heard the Van Niekerk appeal) and other
executive-minded judges. For some judges these matters constituted a wake-
 Tony Mathews and criticism of the judiciary 7

up call, a call for them to reconsider their role as judges. This did not result
in resignation but in a quiet determination to interpret race and security
laws in accordance with the common law values of equality and liberty,
rather than the interests of the apartheid state. This ‘gentle judicial
revolution’ was most apparent in Natal on the part of judges such as John
Milne, David Friedman, John Didcott and Andrew Wilson. Whether the
close proximity of these judges to Mathews and Van Niekerk in Durban,
and the respect that was shown for these academics in Durban, had anything
to do with this is not known.28
By the early 1980s the role of the judge in the apartheid state had
become a matter of public debate. In 1983 Raymond Wacks, who had
succeeded to Barend van Niekerk’s chair at the University of Natal, delivered
an inaugural address calling upon judges who were morally opposed to the
repressive South African legal system to resign.29 He dismissed the Mathews-
Dugard argument that progressive judges might achieve some measure of
justice in an unjust legal order by exercising their judicial choice in the
interpretation of law and fact, in favour of equality and liberty. Calls for
judicial activism on the part of the ‘liberal’ judge by Mathews and Dugard
were rejected as futile. Only resignation by such judges would have any
effect. Both Mathews and I responded to this lecture by reiterating the
position we had advanced for many years, that the ‘liberal’ or ‘progressive’
judge could do much to achieve justice from within the system.30
There had been a growing toleration of public discussion of the role
of the judiciary between 1972 and 1984. Although Wacks’ inaugural lecture
might have been construed as defeating or obstructing the course of justice
– the test that provided the basis for Van Niekerk’s conviction in 1972 –
there was no suggestion of prosecution. But again, credit went to Ellison
Kahn for agreeing to publish the lecture in the SALJ.
Wacks’ inaugural lecture had the opposite effect to that intended. No
judge resigned. Instead judges appeared now to openly endorse the
philosophy expounded by Mathews and Dugard and rejected Wacks’. I
was told by many judges (some of whom had previously been critical of
my views) that ‘of course, you are right – a judge can effectively advance
justice from within the system; resignation would simply remove the
opportunity for decent decisions by moral judges’. The new judicial mood
was reflected in a number of progressive decisions interpreting the
emergency laws in the mid-1980s. It was also evidenced by a new willingness
8 Personal Tributes

on the part of judges to discuss apartheid critically and to consider proposals

for a new legal order. The Centre for Applied Legal Studies’ special-
invitation, off-the-record meetings at Mount Grace in the Magaliesberg,
attracted a growing number of judges. A prediction, by a supportive judge,
that no more than four or five judges would accept an invitation to these
meetings proved to be completely wrong. Judges welcomed invitations to
these meetings and between 1983 and 1993 over fifty judges attended the
Mount Grace meetings and engaged in vigorous and challenging debates
with black and white activist lawyers about the future of the South African
legal order. In short, Wacks’ inaugural lecture succeeded in generating a
new awareness on the part of judges of their role in society and the manner
in which they could contribute to a better legal order.
All these developments that resulted in a new understanding of the
judicial role and the need for scrutiny of judicial behaviour can be traced
back to Mathews’ and Albino’s article on the ‘Permanence of the
Temporary’.31 It set in motion a process that culminated in the Constitution
of the Republic of South Africa, 1996, with a Bill of Rights32 and
recognition of the right of judicial review.33
Today the values that Mathews espoused and advocated are enshrined
in the 1996 Constitution. The treatment of detainees that led to ‘The
Permanence of the Temporary’34 is prohibited by the Bill of Rights,35 and
36
the restraints imposed by Van Niekerk are no longer good law. In the
brief period of South Africa’s democracy, judges have performed well.
But ‘The Permanence of the Temporary’,37 written at the height of apartheid
madness, is a constant reminder to judges that they have hard choices to
make in their interpretation of the law and that their loyalty is to the
Constitution and not to their political masters. Mathews’ article is also a
reminder to academic lawyers that it is their responsibility to judge the
judges. This is the legacy of Tony Mathews.

NOTES
1. Mathews, A.S. and Albino, R.C. ‘The Permanence of the Temporary: An
examination of the 90- and 180-day Detention Laws’ (1966) 83 SALJ 16.
2. Section 17 of the General Law Amendment Act 37 of 1963.
 Tony Mathews and criticism of the judiciary 9

3. Section 215bis of the Criminal Procedure Act 56 of 1955, inserted by s 7 of

the Criminal Procedure Amendment Act 96 of 1965.
4. Mathews and Albino op cit note 1 at 24–6 and 31–2.
5. Op cit at 37–43.
6. Ibid.
7. The potential for censorship under the system of refereeing of scholarly
publications has yet to be explored. There can be no doubt, however, that
anonymous reviewers do sometimes impose their views on authors. Recently
I read a review written by a prominent progressive advocate who took
exception to harsh criticism of Israel (not, let me add, by the present author)
and advised that the strong language used by the author had ‘no place in an
academic contribution’. One wonders whether reviewers realise that their
anonymous comments may either indirectly or directly result in censorship.
8. Mathews and Albino op cit note 1.
9. Ibid.
10. Butterworths was not the only South African publisher to pursue a policy of
caution in respect of legal writings. My Human Rights and the South African
Legal Order (1978) was published by Princeton University Press but distributed
by its agent in South Africa, Oxford University Press (OUP). The manager
of OUP in South Africa was alarmed at the prospect of distributing my
book when he discovered that Princeton University Press had unwisely
included an innocuous recommendation by Albie Sachs, a person banned
under the Internal Security Act 44 of 1950, on the dust cover. He referred
the book to the government for approval which, as expected, was refused.
Several months later OUP agreed to distribute with the dust cover removed
and the blurb on the paperback blackened out. But never was there such an
unenthusiastic distribution of a legal treatise.
11. Mathews, A.S. Law, Order and Liberty in South Africa (1971).
12. Op cit note 1.
13. 1972 (3) SA 711 (A).
14. Chief Justice L.C. Steyn ‘Regsbank en Regsfakulteit’ (1967) 30 THRHR 105.
15. Ibid.
16. Mathews and Albino op cit note 1.
17. Op cit note 11.
18. Dugard, J. ‘The judicial process, positivism and civil liberty’ (1971) 88 SALJ
181.
19. Kahn and Van Niekerk were totally different personalities, both in outlook
and in temperament. Nevertheless, for reasons I could not understand, they
were close friends and greatly respected each other.
10 Personal Tributes

20. Van Niekerk, B. ‘Hanged by the neck until you are dead’ (1969) 86 SALJ
457; (1970) 87 SALJ 60. The legal proceedings and the ensuing contempt of
court case are reported in S v Van Niekerk 1970 (3) SA 655 (T) and in
Rhadamanthus ‘Contempt of court? The trial of Barend van Niekerk’ 1970
Acta Juridica 77.
21. Act 83 of 1967 s 6.
22. S v Van Niekerk 1972 (3) SA 711 (A) at 719.
23. Supra note 22 at 722.
24. Act 83 of 1967.
25. Supra note 22 at 722.
26. Supra note 22.
27. See S v Van Niekerk 1972 (3) SA 711 (A) at 722 and 726. See also Dugard, J.
‘Judges, academics and unjust laws: The Van Niekerk contempt case’ (1972)
89 SALJ 271 and Dugard, J. Human Rights and the South African Legal Order
(1978) 294.
28. Barend van Niekerk and John Milne (later Judge President of the Natal
Provincial Division) became close friends as a result of their common
opposition to the proposal to destroy the Durban Railway Station.
29. Wacks, R. ‘Judges and injustice’ (1984) 101 SALJ 266.
30. Mathews, A.S. ‘Should they quit?’ Sunday Tribune, 22 May 1983; Dugard, J.
‘Should judges resign? – A reply to Professor Wacks’ (1984) 101 SALJ 286.
31. Mathews and Albino op cit note 1.
32. Constitution of the Republic of South Africa, 1996, ch 2.
33. Constitution s 33.
34. Mathews and Albino op cit note 1.
35. Op cit note 33.
36. Supra note 22.
37. Mathews and Albino op cit note 1.