n South African Journal on Human Rights - Magistrates under apartheid : a case study of the politicisation of justice and complicity in human rights abuse

Volume 19, Issue 2
  • ISSN : 0258-7203



This article focuses on the simultaneous impact of the prevailing legal doctrine of positivism and the fact of being state employees on the work and perceptions of magistrates in apartheid South Africa. It examines the complementarity of 'ruleoriented' and 'role-oriented' positivism which rendered legal theory subservient to and a form of argumentation for a dominant political agenda. Broad allegiances to the law and to the state conditioned not only magistrates' practice, including the exercise of discretion. It also affected magistrates' self-perceptions, notably of their independence and, ultimately, their views on morality and responsibility. What are the implications of such stark personal, professional and political constraints for both forms, and understandings, of complicity in human rights abuses? The article discusses the supervision by magistrates of the complaints and safeguard system for detainees to provide more detailed insights into the interface between law and politics. It concludes that while there is a general acknowledgement among magistrates that abuses took place this has yet to be translated into acknowledgement of personal complicity in those abuses.

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