RRPost-Colonial OrganisationA Case Study of South AfricaRR (1)
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Critically Analyse the Relationship between Law, Colonialism, Oppression and Emancipation in Post-Colonial Organisation: A Case Study of South AfricaStudent’s NameStudent NumberInstitutional AffiliationSubmission Date(Word Count: 3,261 Words)
IntroductionThe history of South Africa (SA) is closely associated with colonialism, apartheid regime and fight for liberation from colonial masters to a modern society democracy.1As one of the largest economies in Africa, South Africa has the best democracies in Africa with independence institutions and respect to human rights in the region. However, this has not been the case throughout its history with over three centuries of colonial rule and apartheid rule that saw violations of human rights and racial discrimination and segregation of African people in South Africa.2In this view, for South Africa’s colonial master to continue with such oppressive regimes, they enacted laws and established legal framework that established apartheid rule in South Africa which was defined by racism, capitalist exploitation, and a well-coordinated structural discrimination against the blacks.3In 1994, apartheid rule in South Africa was abolished and the country started a process of transformation through the adoption of progressive legal reforms to address past imbalances and promote equality of its citizens.4With this in mind, the current essay seeks to provide a critical discussion of law in South Africa as a tool for oppression and as a vehicle for post-colonial liberation with specific reference to the effect of law on organisational structures and practices. As a result, through the lens of the historical analysis of the South African law from colonial times through the apartheid era to the post-colonial era, this essay seeks to elucidate the multifaceted yet very significant role that the law has played in the transformative agenda in South African organisations in post-colonial era. 1Fang KY, ‘Crime and Policing in Post-Apartheid South Africa: Transforming under Fire (Review)’ (2003) 4 Journal of Colonialism and Colonial History 2Clark NL, ‘South Africa: Apartheid and Post-Apartheid’ [2018] The Palgrave Handbook of African Colonial and Postcolonial History 1005 3Filippi N, ‘Institutional Violence and the Law in Apartheid South Africa’ (2016) 17 Journal of Colonialism and Colonial History 4Guelke A, ‘South Africa in a Post-Colonial World: Modernising or Eroding Apartheid?’ [2005] Rethinking the Rise and Fall of Apartheid 105
South Africa’s Colonial and Apartheid LegaciesColonial Legacies in South Africa In South Africa, colonial rule was establishment in 1652 with a Dutch East India Company colony at the Cape of Good Hope.5The Dutch settlers, who later came to be known as the Afrikaners, along with the British colonists, extended the domination over the land which led to subjugation of the indigenous people of Africa.6In addition, to extent the Dutch domination in South Africa, legal systems such as ‘The Land Tenure System’ and ‘Pass Laws’ that were put in place to enhance colonialism as these laws barred Africans from cultivating their own land and free movement in settler area.7Consequently, the Natives Land Act of 1913was a significant turning point that meant to confine black people of South Africa into only 7% of the country’s land despite them being the majority.8It not only entrenched the economic split but opened the door to other forms of segregation that would follow in the future.In this view, the law was an essential instrument in the colonial rule in South Africa as it played a role in the accumulation of wealth and regulation of the colonised population.9In the same context, the legal systems of colonialism facilitated land dispossession, immobility and forced labour.10These networks were slowly dismantled and weakened, and political institutions were introduced to the indigenous societies for the benefit of the colonizers. As a 5Kaziboni A, ‘Exclusion and Invented Water Scarcity: A Historical Perspective from Colonialism to Apartheid in South Africa - Water History’ (SpringerLink, 21 March 2024) <https://link.springer.com/article/10.1007/s12685-024-00339-4> accessed 5 January 20256Oliver E and Oliver WH, ‘The Colonisation of South Africa: A Unique Case’ (2017) 73 HTS Teologiese Studies / Theological Studies7van Staden M, ‘Land Loss and Labour Control: The Intersection of Land Dispossession and Labour Law in South African History’ [2024] Industrial Law Journal8Beinart W and Delius P, ‘The Historical Context and Legacy of the Natives Land Act of 1913’ (2014) 40 Journal of Southern African Studies 6679Sato C, ‘Land Tenure Reform in Three Former Settler Colonies in Southern Africa’ (SpringerLink, 1 January 2021) <https://link.springer.com/chapter/10.1007/978-981-16-4725-3_5> accessed 5 January 202510McLachlan J, ‘History of the Dispossession of the Rights in Land of Pastoral Indigenous Communities in the Cape Colony from 1652 to 1910’ (2019) 25 Fundamina
result, this meant that the law was not a mere instrument of colonialism but an active player in the subjugation of the black people and therefore the subsequent social and economic disparities that would exist during the apartheid era.11Apartheid System and Its LegaciesThe National Party was in power from 1948 and this was when apartheid was implemented, this is the segregationist policy of the blacks and the whites. Some of the laws that were implemented by the apartheid regime are the Population Registration Act of 1950, the Group Areas Act of 1950, and the Bantu Education Act of 1953that defined the apartheid system.12These laws defined the residential, employment, and educational areas which were strictly based on the colour and hence barred black people from participating in political and economic activities in South Africa. The judiciary was not an exception to these apartheid laws and the judiciary also played its part in the process of making the blacks as if they were of the third class citizens, thus supporting the idea of using law as a weapon to maintain the minority rule.13The apartheid legal structure therefore continued the colonial experience by encoding race into every aspect of people’s lives.14The laws were not just reflecting the society but were also used to serve as a tool to maintain and promote the systems of race bias. For instance, pass laws restricted the movement of black South Africans and ensured that they carried passes with them at all times while labour laws ensured that black South Africans remained 11Raman B, ‘Oceanic Mobility and the Empire of the Pass System: Law and History Review’ (Cambridge Core, 30 March 2023)<https://www.cambridge.org/core/journals/law-and-history-review/article/oceanic-mobility-and-the-empire-of-the-pass-system/BD64E93B3FCDE195B7DAA56276060896> accessed 5 January 202512‘Introduction: Early Apartheid: 1948-1970’ (Facing History & Ourselves, 2018) <https://www.facinghistory.org/resource-library/introduction-early-apartheid-1948-1970> accessed 5 January 202513McLachlan J, ‘History of the Dispossession of the Rights in Land of Pastoral Indigenous Communities in the Cape Colony from 1652 to 1910’ (2019) 25 Fundamina14van Staden M, ‘Land Loss and Labour Control: The Intersection of Land Dispossession and Labour Law in South African History’ [2024] Industrial Law Journal
oppressed in mines and factories.15The law was employed as a tool to oppress and marginalise a certain population group, which was numerically superior, and to this extent, it confirmed the subordinate position of this group in the political process.Legal Infrastructure of OppressionThe legal system during colonialism and apartheid rule did not allow the people to have a say in the decision making process where the blacks in South Africa were not allowed to vote or even stand for elections.16The discriminated laws remained valid in the courts and any attempt to fight against it was followed by force and brutality. In the same view, other legislations such as the Suppression of Communism Act of 1950and the Terrorism Act of 1967outlawed anti-apartheid activities meaning that the law supported apartheid.17In the same manner, the legal structure could have perhaps offered some sort of a veil behind which the regime could have been perceived as working within the parameters of the law as opposed to the use of force to get things done.18This is a clear illustration of how legal systems not only sustain oppression but also offer reasons for doing so. In this way, the apartheid state used legalism as a tool to stifle opposition and at the same time could give credibility to South Africa as a state that adheres to the principle of the rule of law.19Thus, this has been the paradigm of law and oppression and depicts the challenge of liberation in a culture based on power.15Beinart W and Delius P, ‘The Historical Context and Legacy of the Natives Land Act of 1913’ (2014) 40 Journal of Southern African Studies 66716Filippi N, ‘Institutional Violence and the Law in Apartheid South Africa’ (2016) 17 Journal of Colonialism and Colonial History 17Dugard J and Reynolds J, ‘Apartheid, International Law, and the Occupied Palestinian Territory’ (2013) 24 European Journal of International Law 86718de Oliveira V, ‘Legislation, Segregation, and Violence in Apartheid-Era South Africa’ [2024] Humania del Sur 12319Kaziboni A, ‘Exclusion and Invented Water Scarcity: A Historical Perspective from Colonialism to Apartheid in South Africa - Water History’ (SpringerLink, 21 March 2024) <https://link.springer.com/article/10.1007/s12685-024-00339-4> accessed 5 January 2025
The Struggle for EmancipationResistance MovementsPolitical organisations such as the ANC, the PAC, and the trade unions fought against colonialism and apartheid rule in South Africa in the struggle for freedom.20In the same view, there were those like Nelson Mandela, Oliver Tambo and Sisulu Walter who struggled networking the support of the people as well as the international community in the fight against apartheid laws.21The ‘Defiance of Unjust Laws Campaign in 1950s’ was a non-violent way of combating apartheid laws and the Freedom Charterthat was adopted in 1955 provided a guide to the future South Africa.22Role of Law in ResistanceThe apartheid government used the law to silence the voices of the oppressed while on the other hand the oppressed used the very same legal system to seek justice. The Rivonia trial of Nelson Mandela and his comrades of ANC in 1963-1964 that led to them being sentenced to life imprisonment also became one of the greatest courtroom battles for justice.23The international legal actions are the UN resolutions on apartheid and the measures of isolation of the regime in terms of economic and diplomatic relations. This meant that the connection between law, colonialism, oppression and freedom was not a simple one, but a complex one. First and foremost, colonialism and apartheid have always ensured that laws of the country are well crafted in order to support the black race and to ensure that anyone who may have a mind of trying to alter the system is subdued.24However, 20Cunningham PW, ‘Trade Unions and Politics in South Africa’ (1985) 16 South African Journal of Sociology 4321Ndlovu SM, ‘The Struggle Continues towards a Genuine and Lasting Emancipation: South Africa in the Past 20 Years’ (2014) 12 African Identities 23622Ekama K and Ross R, ‘The Emancipation of the Enslaved in the Cape Colony: Historiography and Introduction’ (2021) 47 Journal of Southern African Studies 40523‘Nelson Mandela: How Apartheid Regime’s Court Tried to Destroy the ANC’ (The Guardian, 7 December 2013) <https://www.theguardian.com/world/2013/dec/07/nelson-mandela-rivonia-trial-anc> accessed 5 January 202524Ndlovu SM, ‘The Struggle Continues towards a Genuine and Lasting Emancipation: South Africa in the Past 20 Years’ (2014) 12 African Identities 236
the same legal frameworks offered a way through which the females could respond to the oppressions. The apartheid system made the trials unfair and the activists were glad that they were able to voice their concerns regarding the apartheid system even though they would not be able to get justice from the court.25For instance, through the Rivonia Trial, Nelson Mandela was able to tell the world why the fight against apartheid was moral and political and thus get support from the international community.26As a result, where the law was applied as a tool of domination over the people and their subjugation, the same law became their light of hope and chance for a better future. The segregation laws were to protect the sufferers’ status whereas the concepts of justice and human rights based on the international law were the tools that could be used to fight this injustice.27In addition, other international human rights treaties such as the Universal Declaration of Human Rights and the conventions on the Elimination of All Forms of Racial Discriminationwere used as a forum for pressure against apartheid by the international community.28It is evident that despite the law being a weapon of oppression, it can as well be a weapon for liberation if used wisely.The Transition to DemocracyConstitutional ReformThe apartheid system was at its last stage in the period of F.W de Klerk as the last apartheid government and Mandela’s release in the year 1990 and other liberation movements. This marked the formation of the interim constitution in the year 1993, and hence South Africa 25de Oliveira V, ‘Legislation, Segregation, and Violence in Apartheid-Era South Africa’ [2024] Humania del Sur 12326‘Nelson Mandela: How Apartheid Regime’s Court Tried to Destroy the ANC’ (The Guardian, 7 December 2013) <https://www.theguardian.com/world/2013/dec/07/nelson-mandela-rivonia-trial-anc> accessed 5 January 202527Ekama K and Ross R, ‘The Emancipation of the Enslaved in the Cape Colony: Historiography and Introduction’ (2021) 47 Journal of Southern African Studies 40528(International Convention on the Elimination of All Forms of racial discrimination | OHCHR, 1969) <https://www.ohchr.org/en/instruments-mechanisms/instruments/international-convention-elimination-all-forms-racial> accessed 5 January 2025
conducted its first democratic election in the year 1994.29South Africa has been using the 1996 constitution for more than one decade and this has been described as one of the best constitutions in the world which has led to the formation of a democratic South Africa with ideals of equality, human dignity and that of the supremacy of the constitution.30It had the Bill of Rights to protect liberty, checks and balances with judiciary playing a part and the comprehension of righting past wrongs.Critical Analysis of Law and EmancipationIn the emancipation process in South Africa, the process shows how the function of the law changed from subjugation to a liberation tool. In this view, this was done through compromise and this shows that laws can be used as a middle ground between two societies with different aims. The law in this context sought to abolish the apartheid legal structures and foster a new order in which there would be no distinction on the basis of race and where everyone would be treated equally by the law, without regard to their race.31However, this shift also made it clear that mere change in the laws is not enough to tackle racism and prejudice in the society. On the other hand, the new legal order was a complete shift from the previous one but the social and economic implications of colonialism and apartheidism were still felt. For instance, there is the problem of land ever so present, and the legal system cannot find a middle ground between the rights of the owners of the land and the rights of history.32Similarly, the judiciary that is constitutional has not taken any action against political leaders 29Graham M and Fevre C, ‘“Mandela’s out so Apartheid Has Finished”: The British Anti-Apartheid Movement and South Africa’s Transition to Majority Rule, 1990-1994’ (2021) 36 Contemporary British History 32330Ekama K and Ross R, ‘The Emancipation of the Enslaved in the Cape Colony: Historiography and Introduction’ (2021) 47 Journal of Southern African Studies 40531Mathebula TH and Odeku KO, ‘An Analysis of Post-Apartheid Anti-Fronting Interventions Fostering Mainstreaming of the Black South Africans into Corporate Sector’ (2023) 12 Laws 8732Graham M and Fevre C, ‘“Mandela’s out so Apartheid Has Finished”: The British Anti-Apartheid Movement and South Africa’s Transition to Majority Rule, 1990-1994’ (2021) 36 Contemporary British History 323
for corruption, which is a clear indication of the struggle between constitutionalism and politics.The South African Truth and Reconciliation Commission(TRC) is helpful in understanding the dual nature of law in emancipation. As a result, the TRC had a focus on restorative justice in order to achieve the aims of healing and reconciliation but was accused of not pursuing retributive justice to the extent needed.33This is to support the fact that it is quite a challenge to address historical injustice and at the same time forge a united nation through the legal process. Thus, this interaction of law with colonization/oppression emancipation in this period shows the potential and the constraints of law in the post-colonial societies.34Role of Law in EmancipationThus, legal transformation seems to have played a crucial role in the struggle against apartheid systems. Restorative justice was employed by the Truth and Reconciliation Commission (TRC)that was established in the year 1995 to address human rights violations and formation of the nation.35Land restitution was targeted at correcting past wrongs while the affirmative action was in response to institutional racism. The measures highlighted above in regard to legal and constitutional development manifested how the law was instrumental in the struggle for democracy in South Africa.36By these changes, the South African legal system was able to become a vehicle for the restoration of rights and the creation of a non-racial society. However, the enduring disparities in the economic and social aspects mean that there is still much work to be done in 33Ekama K and Ross R, ‘The Emancipation of the Enslaved in the Cape Colony: Historiography and Introduction’ (2021) 47 Journal of Southern African Studies 40534Cunningham PW, ‘Trade Unions and Politics in South Africa’ (1985) 16 South African Journal of Sociology 4335de Oliveira V, ‘Legislation, Segregation, and Violence in Apartheid-Era South Africa’ [2024] Humania del Sur 12336Dugard J and Reynolds J, ‘Apartheid, International Law, and the Occupied Palestinian Territory’ (2013) 24 European Journal of International Law 867
terms of ensuring the realisation of legal enfranchisement of individuals.37This paradox between the formal and the real is characteristic of the postcolonial state and underscores the challenges of using law to deliver liberation in its complete sense.Challenges and LessonsOn-going ChallengesIn the economic sphere, as noted, the society remains prejudiced to a great extent, especially in terms of wealth, where the white people continue to hold the reins of wealth creation. On the one hand political corruption has emasculated the political systems and on the other hand social injustice continues to reign as a cause of concern.38These challenges show that legal and constitutional reforms, no matter how profound and far-reaching, cannot address basic and systemic problems.Lessons for Post-Colonial StatesHence, the South African experience is beneficial for other post-colonial societies. It concentrates on constitutionalism and the rule of law, seeking justice through the courts to address past wrongs, and civil society as monitors of state power.39It also reveals the need to carry on the struggle for economic equity and safeguard the resources crucial to the democratic process.ConclusionSouth Africa for instance was a colonial state, then an apartheid state, and now a liberal democracy and this goes to show that the legal and constitutional frameworks are key in protecting democracy. Apartheid and colonial laws had made sure that people were 37‘Introduction: Early Apartheid: 1948-1970’ (Facing History & Ourselves, 2018) <https://www.facinghistory.org/resource-library/introduction-early-apartheid-1948-1970> accessed 5 January 202538Raman B, ‘Oceanic Mobility and the Empire of the Pass System: Law and History Review’ (Cambridge Core, 30 March 2023)<https://www.cambridge.org/core/journals/law-and-history-review/article/oceanic-mobility-and-the-empire-of-the-pass-system/BD64E93B3FCDE195B7DAA56276060896> accessed 5 January 202539McLachlan J, ‘History of the Dispossession of the Rights in Land of Pastoral Indigenous Communities in the Cape Colony from 1652 to 1910’ (2019) 25 Fundamina
suppressed and discriminated but democracy has proved that laws can be used to empower people and fight for their rights. Nevertheless, the South African experience is one that cannot be described as having been without its problems but it is an example of the reality that even in a country that has had its fair share of problems, the people are always capable of overcoming the difficulties and there is always room for improvement within the legal and constitutional system for the improvement of the people’s lives.
Bibliography(International Convention on the Elimination of All Forms of racial discrimination | OHCHR, 1969) <https://www.ohchr.org/en/instruments-mechanisms/instruments/international-convention-elimination-all-forms-racial> accessed 5 January 2025 Beinart W and Delius P, ‘The Historical Context and Legacy of the Natives Land Act of 1913’ (2014) 40 Journal of Southern African Studies 667 Clark NL, ‘South Africa: Apartheid and Post-Apartheid’ [2018] The Palgrave Handbook of African Colonial and Postcolonial History 1005 Cunningham PW, ‘Trade Unions and Politics in South Africa’ (1985) 16 South African Journal of Sociology 43 de Oliveira V, ‘Legislation, Segregation, and Violence in Apartheid-Era South Africa’ [2024] Humania del Sur 123 Dugard J and Reynolds J, ‘Apartheid, International Law, and the Occupied Palestinian Territory’ (2013) 24 European Journal of International Law 867 Ekama K and Ross R, ‘The Emancipation of the Enslaved in the Cape Colony: Historiography and Introduction’ (2021) 47 Journal of Southern African Studies 405 Fang KY, ‘Crime and Policing in Post-Apartheid South Africa: Transforming under Fire (Review)’ (2003) 4 Journal of Colonialism and Colonial History Filippi N, ‘Institutional Violence and the Law in Apartheid South Africa’ (2016) 17 Journal of Colonialism and Colonial History Graham M and Fevre C, ‘“Mandela’s out so Apartheid Has Finished”: The British Anti-Apartheid Movement and South Africa’s Transition to Majority Rule, 1990-1994’ (2021) 36 Contemporary British History 323 Guelke A, ‘South Africa in a Post-Colonial World: Modernising or Eroding Apartheid?’ [2005] Rethinking the Rise and Fall of Apartheid 105
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‘Introduction: Early Apartheid: 1948-1970’ (Facing History & Ourselves, 2018) <https://www.facinghistory.org/resource-library/introduction-early-apartheid-1948-1970> accessed 5 January 2025 ‘Nelson Mandela: How Apartheid Regime’s Court Tried to Destroy the ANC’ (The Guardian,7December2013) <https://www.theguardian.com/world/2013/dec/07/nelson-mandela-rivonia-trial-anc> accessed 5 January 2025