The Impact of Apartheid on Commonwealth Administrative Law
| Jurisdiction | South Africa |
| Pages | 158-208 |
| Author | Michael Taggart |
| Date | 15 August 2019 |
| Published date | 15 August 2019 |
The Impact of Apartheid on
Commonwealth Administrative Law
MICHAEL TAGGART*
University of Auckland
One of the consequences of the apartheid era was that South African law
became increasingly isolated from doctrinal developments elsewhere in
the common-law world.
1
This was nowhere more evident than in the
area of administrative law.
2
Moreover, this lack of impact was recipro-
cated, with little interest shown elsewhere in South African law and legal
literature. Nevertheless, the growing international recognition of the
abhorrence of apartheid generated a surprising amount of case law, some
of it under the rubric of administrative law.
3
This is a neglected part of the
annals of apartheid. My purpose here is three-fold: to discuss that case
law, to indicate the directions in which it has pointed Commonwealth
administrative law and to draw lessons from it.
4
I THE PREROGATIVE TO STAY PUT
Historically, rugby is what South Africa and New Zealand have most in
common,
5
and the almost religious zeal with which many New
* Alexander Turner Professor of Law,University of Auckland, New Zealand.
Thanks to Vicki McCall and Katy Nathan for research assistance and to the New Zealand
law firm of Chapman Tripp which paid for Vicki’s assistance. Thanks also to Hugh Corder and
Linda van de Vijver for their organizationalskill, hospitality and many kindnesses.
This paper is dedicated to my friend Paddy Finnigan, who had the courage of his
convictions.
1
Although the South African legal system is a mixed one, its administrative law is common
law-based and so the use of ‘elsewhere’ is justified.
2
See eg D Dyzenhaus Hard Cases in Wicked Legal Systems: South African Law in the Perspective
of Legal Philosophy (1990); H Corder ‘Administrative Justice: A Cornerstone of SouthAfrica’s
Democracy’ (1998) 14 SouthAfrican Journal of Human Rights 38, 42.
3
The coverage here is somewhat arbitrary due partly to space constraints and partly to my
interests and expertise. There are cases involving the ‘black listing’ of sports people and others
who worked in South Africa. There are also many ‘public order’cases where people protesting
against apartheid have ended up in court on a variety of charges, and who defended themselves
ingeniously. These are not covered.
4
In what follows the horror of apartheid is taken as a given. By concentrating on doctrinal
matters it is not intended to trivialize that horror. Moreover,the case law discussed comes from
New Zealand, Canada and the UK. I am not aware of any other cases from elsewhere in the
Commonwealth or indeed outside it. The only exception, the Irish case Lennon v Ganley &
Fitzgerald [1981] Ir. LR 84, discussed byV J G Power in ‘Injunctions and rugby tours: The Irish
experience’ [1985] NZLJ 220, I have had difficulty accessing.
5
M McKinnon ‘Impasse or Turning Point? New Zealand and the 1981 Springbok Tour’
(1982) 13 South African International 15, 15–18 (July 1982) & P Dobson Rugby’sGreatest Rivalry:
South Africa vs New Zealand 1921–1995 (1996).
158
2006 Acta Juridica 158
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Zealanders followed rugby
6
meant that the anti-apartheid movement had
to struggle hard over several decades to effect a change in attitude in New
Zealand to sporting contacts with South Africa.
7
Until the late 1960s, opposition in New Zealand to All Blacks tours of
South Africa focused mainly on the exclusion of Maori New Zealanders
from selection in the touring teams. ‘No Maoris, No Tour’was the catch
cry.
8
In 1967, the New Zealand Rugby Union refused to send a team to
South Africa on this basis. And it was in relation to rugby
9
that the South
African authorities first relented and allowed racially mixed rugby teams
to tour. But by this time attitudes were hardening to apartheid in South
Africa – and the protests took a more overt anti-apartheid focus.
10
So ‘the
news that an All Blacks team – albeit with Maoris included – would tour
[South Africa] in 1970 aroused almost as much opposition as had the
exclusion of Maoris from the 1960 touring team’.
11
For the first time, but not the last, opponents of rugby contact between
New Zealand and South Africa resorted to the courts.
12
Roy Parsons, a
thoughtful and progressive book seller in Wellington, with the aid of
6
‘Until the 1960s rugby union was an intense national preoccupation with a breadth of
interest through the community that raised it, as was often said, to the status of a religion’:
‘Rugby Union’ in D Bateman Bateman New Zealand Encyclopedia 6 ed (2005) 581, 583. For a
brief discussion and references to the cultural significance of sport in white apartheid South
African society,see M Keech & B Houlihan ‘Sport and the End of Apartheid’ (1999) The Round
Table(No 349) 109, 111–12.
7
Compulsory reading in this regard is M Templeton Human Rights and Sporting Contacts:
New Zealand Attitudes to Race Relations 1921–94 (1998) & T Richards Dancing on Our Bones:
New Zealand, South Africa, Rugby and Racism (1999).
8
See Templeton (n 7) ch 3; R Thompson Retreat from Apartheid: New Zealand’s Sporting
Contacts with South Africa (1975) ch 7.
9
As regards cricket, at about this time the ‘D’Oliveria Affair’ precipitated South Africa’s
exclusion from international test match cricket. Basil D’Oliveria, a South African-born
‘coloured’ cricketer who played for England, was first inexplicably not selected on merit to
tour South Africa in 1968 (which caused an uproar in England) but then was called in to
replace an injured player. His selection caused the SouthAfrican Prime Minister to declare that
the Marylebone Cricket Club (MCC) had capitulated to pressure and the tour was cancelled. It
is now clear that Prime Minister B J Vorsterwould not have allowed the MCC team to tour if it
had included D’Oliveria originally. See B K Murray ‘Politics and Cricket: The D’Oliveria
Affair of 1968’ (2001) 27 Journal of SouthAfrican Studies 667.
10
Richards (n 7) ch 4. For a similar pattern within ‘black’ and ‘coloured’sporting circles in
South Africa, see D Booth ‘Hitting Apartheid for a Six? The Politics of the African Sports
Boycott’ (2003) 38 Journal of Contemporary History 477.
11
McKinnon (n 5) 18. Three Maori New Zealanders and one Samoan New Zealander
toured South Africa with theAll Blacks in 1970.
12
To give some indication how deep feelings ran, the Chief Justice of New Zealand, Sir
Richard Wild, a former representative rugby player, said of the proposedAll Blacks tour in a
speech at the Wellington Rugby Football Union centenary: ‘they must go; they will go’. For
reaction by students and legal academics at his Alma Mater,Victoria University of Wellington,
see G Barton ‘Dinner Speech’ (2002) 33 Victoria University of Wellington LR 1085, 1087 & R
Barrowman Victoria University of Wellington 1899–1999: A History (Victoria University of
Wellington Press, Wellington, 1999) 334. For the reaction of the media, see Templeton (n 7)
51. I am obliged to Sir Kenneth Keith for these references.
159THE IMPACT OF APARTHEID ON COMMONWEALTH ADMINISTRATIVE LAW
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Professor George Barton of Victoria University of Wellington Law
School,
13
dug deep in the mines of the common law to extract the writ of
ne exeat regno and attempted to use it to prevent the All Black team leaving
for South Africa in 1970.
The origin of the writ of ne exeat regno lies in the prerogative powers of
the Monarch. The writ was the means by which the Monarch could
prevent subjects leaving the realm either to ensure their availability to
assist the Crown in times of emergency or to prevent them causing
trouble or mischief overseas. There was no evidence that it had been used
for these ‘political purposes’ since the 17th century,
14
and by then it had
became popular as a means by which creditors could prevent debtors
absconding overseas. The only support for the proposition that the writ
was available at the behest of a private individual in relation to political
purposes was a line in Fitzherbert’s New Natura Brevium (circa 1534) that
had been repeated in Viner’s Abridgment over two hundred years later.
15
Hardie Boys J held this thread was not strong enough to support a writ at
the behest of a private individual against the managers, captain and a
member of the All Black team.
16
Only the Crown, and not individual
citizens, was held to have standing to seek the writ for political purposes.
In a Westminster-style democracy it was the responsibility of Ministers to
advise Her Majesty in matters of State and it was not for the court to
‘usurp the functions of the Queen’s Ministers’ by issuing the writ upon
the request of private citizens.
17
Hardie Boys J was influenced also by the
fact that if the writ was issued and disobeyed the consequences could
include imprisonment for contempt.
18
A little ironically perhaps, the writ of ne exeat regno was revived in
relation to its non-political purpose of preventing debtors absconding, in
a series of cases dating from this time.
19
But the writ never made another
appearance in aid of the anti-apartheid cause.
13
See B Williams ‘Parsons, Roy George 1909–1991’in Dictionary of New Zealand Biography
http://www.dnzb.govt.nz. Professor Barton left academic life to pursue a full-time career as a
barrister in 1974, and appeared as senior counsel for the applicants in Ashby v Minister of
Immigration (n 59 below). He appeared pro bono publico. The instructing solicitor was K.
Matthews of Tripe, Matthews & Feist. Senior counsel on the other side was Dr Robin Cooke
QC, who also looms large in the subsequent cases in a judicial capacity.
14
J W Bridge ‘The Case of the Rugby Football Teamand the High Prerogative Writ’ (1972)
88 LQR 83, 87.
15
Parsons v Burke [1971] NZLR 244, 247, per Hardie Boys J (HC).
16
It was not ‘clear authority or precedent’: ibid 248.
17
Ibid 248.
18
Idem.
19
See generally L J Anderson ‘Antiquity in Action – Ne Exeat Revived’(1987) 103 LQR
246.
160 COMPARING ADMINISTRATIVE JUSTICE ACROSS THE COMMONWEALTH
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