The legacy of Barend van Niekerk: A challenge to the on-going abuse of prisoners' rights

• Jurisdiction: South Africa
• Pages: 83-98
• Citation: (2000) 13 SACJ 83
• Author: Ronald Louw
• Date: 24 May 2019
• Published date: 24 May 2019

The legacy of Barend van Niekerk:

A challenge to the on-going abuse

of prisoners' rights

RONALD LOUW*

Introduction

Although public concern with a seemingly unstoppable crime wave makes it

difficult to gain sympathy for the plight of prisoners, not only is there a

constitutional imperative to uphold the rights of prisoners, but we should not

forget the commitment by former anti-apartheid human rights' lawyers and

draw some inspiration from their work. This paper, therefore, seeks to draw

on the ideas of Professor Barend van Niekerk and suggest ways in which his

work might be extended to the otherwise unpopular issue of prisoners' rights

today. During apartheid, prisoners' rights probably received more attention

1

than they do today, possibly for two reasons, namely, that their rights were

systematically violated and, secondly, prisons represented one of the most

brutal manifestations of apartheid. In providing numerous reasons why we

should be concerned with prisoners' rights, van Niekerk wrote:

Inhere is another reason why prisons in South Africa cannot simply be relegated to

the side-lines of our society, as they have indeed traditionally been: our prisons are

seen by many, both here and abroad, as essential instruments of the state apparatus

with which the dominant group applies socio-political policies. Put more directly:

prisons are seen as belonging to the apartheid society; first in the narrow sense of

being one of the instruments of enforcement; and secondly in the broad and more

general sense, of being progressively viewed — and, I should say, not surprisingly

* LLM (Cape Town),

Senior Lecturer, School of Law, University of Natal, Durban.

1

Although the comparison is relevant, the attention previously afforded to prisoners' rights

should not be over estimated, however, to create a false impression of concern. Van Niekerk

commented thus:

The major reason, I submit, for the lack of scrutiny of prisons by the media and in legal

periodicals is simply a lack of interest. Prisons being largely the unseen Gulag Archipelagos

they are, they simply do not command the sympathy of ordinary citizens — least of all

citizens of the white power-wielding bourgeoisie, who can hardly identify psychologically

with prisoners — from which springs the lack of pressure on the media for more robust

reporting'

in 'Judicial visits to prisons: The end of a myth' (1981) 98

SALJ

416 at 416. See also B van

Niekerk 'Free speech and prisons' (1980) 4

SACC 209;

N Steytler 'Prison conditions' (1980) 4

SACC 221;

SA Strauss The legal rights of prisoners and detainees to medical treatment' (1983) 7

SACC

21; and D van Zyl Smit

South African Prison Law and Practice

(1992).

8

3

(2000) 13 SACJ 83

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84

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SACJ •

(2000) 13 •

SAS

so

—

as one of the mirrors in which the apartheid society is reflected as the

reservoirs in which many of its victims are accommodated.'

2

The prisons were thus a manifestation of apartheid, but like other of

apartheid's creations, has outlived its source and continue to reflect the

brutality of apartheid. A general concern for human rights in post-apartheid

South Africa should extend to paying special attention to the rights of

prisoners. There are several indications that their rights continue to be

violated with disregard.

3

Van Niekerk is probably best known for his challenges to the judiciary in

respect of the death penalty

4

and preventative detention,

5

each of which led

to contempt prosecutions.

6

But his academic and activist interests were very

wide indeed including writing books on an alternative guide to Durban

7

and

the poetry of Leopold Senghor.

8

His interests mirrored the Renaissance

person that he was. Born in 1939 in Pietermaritzburg, he lived a short but

extraordinary life. After initially studying law, he went to France and

completed a doctorate, in French, on Anglo-American ambivalence in the

history of Pan-Africanism, with special reference to the roles of WEB du Bois

and Kwame Nkrumah'.

9

After initially teaching at the Universities of Zululand

and the Witwatersrand, he was appointed to the position of Professor of Law

at the University of Natal at Durban. Here he developed his many talents and

became, as Professor Ellison Kahn has described him, a rebel with many

causes, a 'critic of the Government, of the judiciary, of the legal profession, of

environmental pollution, of the death sentence, of racialism, of racism, of the

treatment meted out to prisoners, of suppression of freedom of speech,

convenor of the Save our Station campaign in Durban, champion of the

salvation of our historic and cultural heritage, campaigner of justice for all'.

10

Van Niekerk travelled the world extensively, and in 1980 he went to South

America. At the time he was suffering from high blood pressure and had been

advised not to travel to high altitude. Not uncharacteristically, he ignored the

2

B van Niekerk 'Free speech and prisons' in (1980) 4

SACC

209 at 211.

3

B van Niekerk pithily encapsulates the need to be concerned with prisoners' rights in his

statement 'One of the unfailing litmus tests for enlightenment is the treatment by a society of

its offenders' Van Niekerk op cit (n 1) at 416.

4

B van Niekerk . . Hanged by the neck until you are dead' (1969) 86

SALJ 457

and (1970) 87

SALJ

60

5

B van Niekerk 'A wreath on the unknown grave of an unknown man', unpublished speech at

a protest meeting on the Terrorism Act, Durban, 9 November, 1971.

6

S v Van Niekerk

1970 (3) SA 655 and

S v Van Niekerk

1972 (3) SA 711 respectively.

7

B van Niekerk

Durban at Your Feet: An Alternative Guide to a City

(1979).

8

B van Niekerk

The African Image (Negritude) in the Work of Leoppold Senghor,

(1970) .

9

E Kahn 'In memoriam: Barend van Niekerk' in (1981) 89

SALJ

402 at 403.

10

E Kahn op cit (n 9) at 409. Kahn omits to mention that Van Niekerk wrote the first

sympathetic, albeit problematic, article on homosexuality in a South African law journal: The

"Third Sex" Act' (1970) 87

SALJ87.

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