What Happened When South Africa's Supreme Court Became Unbalanced
WHY YOU SHOULD CARE
Judge Oliver Schreiner tried to fight for racial justice from the bench. It didn't work out.
By Matthew Blackman
South African judge Oliver Schreiner had worked his whole life to get to the country’s highest court, its last judicial authority: the Appellate Division. But in 1955 he wrote to his wife that it “isn’t going to be a court to be proud of.” The country’s apartheid government had just packed the six-member body with five new judges in order to overcome its liberal wing. And as the left wing of the U.S. Supreme Court may soon discover, being in such a distinct minority renders you effectively powerless.
Schreiner was born in 1890 and grew up in the Cape Colony with its liberal tradition and nonracial voting laws. It was a franchise that allowed all races, including the native Black Africans and a Creole group designated as “Colored,” to vote, so long as they earned over £75 a year.
Schreiner’s family were famous South African liberals. His father, W.P. Schreiner, who had been prime minister of the Cape Colony, and his aunt Olive, a prominent author, were two significant liberal voices of their time. Both would speak out against racism in South African politics. As Olive wrote in 1896 in her famous pamphlet The Political Situation, “To all men, irrespective of race and color, the law should deal out an even-handed justice.”
Her nephew, Oliver, would try to do just this. As a judge and person, he was well-known for his dislike of racist laws. Even after a late-in-life stroke, Schreiner refused to sit on bus seats reserved for white people, saying that the thought that elderly Black women were forced to stand in South Africa simply prohibited him from sitting down.
In 1910, when the Cape was united with three other British-run provinces to form the Union of South Africa, the Cape’s non-race-based voting laws became a matter of controversy. Schreiner’s father headed a deputation to Britain in 1909, which attempted to persuade the British government that a united South Africa should follow the Cape’s color-blind approach. Britain instead agreed on a compromise. Nonwhite men in the Cape Colony who met literacy and property ownership requirements would still be allowed to vote, but in the rest of the country it would be a right reserved for white people.
From 1910 onward, segregationist laws in South Africa had progressed haphazardly but inexorably. In 1913, the Natives Land Act was passed, leaving Black people with a tiny minority of the country’s land despite being the vast majority of the population. Other laws excluded Black people from certain jobs, and in 1936, Black voters even in the Cape were removed from the rolls.
But despite South Africa’s regressive laws, both parliament and the judiciary retained strong anti-racist voices — and Oliver Schreiner was one of the most prominent. In 1930, while working as a lawyer in Johannesburg, he co-authored an essay pleading for a “common society” and a “color-blind” electoral roll. And in 1945, he was appointed to the Appeal Court, the country’s highest legal authority, by Prime Minister Jan Smuts’ government, which was at the time largely run by very liberal deputy Jan Hofmeyr.
But despite the presence of liberals like Hofmeyr and Schreiner in positions of power, a radical right wing was on the rise. South Africa fought with the Allies against Nazism, but many white, generally Afrikaans-speaking South Africans openly supported Hitler. Running battles between the army and the fascist white nationalists were known to break out on the streets of Johannesburg during the war.
When World War II ended, contrary to the world trend, South Africa saw a significant rise in support for the far-right National Party (NP) and its ultra-racist apartheid policy. As historian Richard Steyn explains in a recent book, Seven Votes: How WWII Changed South Africa Forever, the NP’s determination “to maintain white supremacy collided head-on with a revolution towards race worldwide.”
In 1948, in an election that according to Steyn “confounded every political pundit and dumbfounded the nation,” the NP won a small Parliamentary majority, despite winning only 38 percent of the popular vote. The anomaly arose due to the fact that voting districts in rural areas had far fewer voters than those in the cities but had equal weight. Smuts’ United Party, with its smattering of liberals, had 49 percent of the popular vote — but held only 42 percent of seats in the House of Assembly.
And it was with this minority mandate that the NP took to instituting its racist apartheid legislation, which included removing all remaining nonwhite people from the voter rolls of the Cape province. Though the constitution demanded support from a two-thirds majority of legislators, in 1951 the apartheid government used its small majority to pass the Separate Representation of Voters Act, removing the “Colored” voters from the rolls. And when four plaintiffs took the act to the high court, Centlivres and Schreiner judged the act unconstitutional.
For the apartheid government, as Judge Dennis Davis and legal scholar Michelle le Roux write in Lawfare: Judging Politics in South Africa, that meant “the gloves were now off.” The government moved to increase the size of the Appeal Court from six to 11, packing it with “judges made in its own political image.” It also ballooned the Senate via another act, which also ensured that the National Party would be in charge of choosing the majority of senators. That increased their representation in the Senate from 25 percent to 87 percent, allowing for a two-thirds majority in the legislature despite a total lack to proportion to their popular support.
When the Separation of Voters Act was taken back to the now-packed Appeal Court, there was little chance of having it overturned. Even the liberal Chief Justice Centlivres capitulated, siding with the government’s appointees. Only Schreiner refused to go along with the National Party’s political manipulations, writing a dissenting judgment.
The framers of the constitution of South Africa, Schreiner argued, had not intended that the government could, by a simple majority, change the structure of the Senate in order to give themselves a two-thirds majority. As Judge Davis puts it, Schreiner knew that the Senate Act was “a legal fraud,” enacted simply to remove nonwhite voters and to reduce the NP’s electoral vulnerability. The National Party wouldn’t fall out of power until 1994, when Nelson Mandela led his party to victory after the end of apartheid.
As legal scholar Ellison Kahn put it in 1980, Schreiner was “the greatest Chief Justice South Africa never had.” Despite being the senior justice of the court, he was twice passed over for the role of chief justice by the apartheid government — a politicized decision Davis compares to “replacing Ruth Bader Ginsburg with a hack.”
- Matthew Blackman, OZY Author Contact Matthew Blackman