Using the law in political battles in SA

2009-02-04 00:00

LAWFARE is not a word found yet in most dictionaries. This book uses it to describe a shift of political activity from Parliament to the courts, particularly in a nation with entrenched constitutional rights. Legal cases in South Africa around gay marriage, women’s rights and the rollout of antiretrovirals are testimony to this. These are clear-cut examples, while others beg the question whether judges rather than politicians should establish socio-economic policy.

Detailed accounts of notable cases are used to trace the political impact of the courts on this country’s recent history. The fact that the apartheid state was firmly based in legislation made it vulnerable to legal challenge. Wendy Orr’s exposure of detention without trial, vividly described in this book, is a prominent example. There were chances like this to undermine repression; but much depended on the approach of litigants and lawyers and the mind-set of those on the bench.

The same applies today in a society based on democratic principles and institutions. The interplay between legal action, political reality and popular opinion has often made the pace of change slower than expected. While there is now opportunity to question every exercise of power, Dennis Davis and Michelle le Roux show that the law can be both sword and shield. They also make significant comparisons between the assault on the legal system by the National Party that removed the coloured vote in the fifties, and current threats to the judiciary by what they scathingly describe as populist stormtroopers.

Writing about the law for a general readership is difficult, but these authors make a good attempt. They even employ dialogue from The Goon Show to make a point about the pass laws. It’s a law book with a difference, relevant to past, present and future, and deserving of wide attention.

Christopher Merrett

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