Download this publication - PULP

34 Chapter 2
I do not think it surprising then that those persons who helped to
bring about the end of apartheid — almost half a century after the
world had declared itself rid of Nazi Germany — would imbue their
founding document with a bit of grim realism about the emancipatory
powers of the post-apartheid state. We find in FC section 12 a
preoccupation with the worst forms of abuse that the state — and
modern society — can visit upon the individual. FC section 12 reminds
us that the post-apartheid state retains the power to put people in
prison without reason and without end, and that ours remains a
society in which bodies are raped, tortured and otherwise exploited.
Take FC section 12(1)(b) — the right not to be detained without trial.
All of the original interpreters of our basic law understood that FC
section 12(1)(b) was designed to remind us of apartheid’s many
depredations. As Ackermann J writes in De Lange:
When viewed against its historical background, the first and most
egregious form of deprivation of physical liberty which springs to mind
when considering the construction of the expression ‘detained without
trial’ in s 12(1)(b) is the notorious administrative detention without trial
for purposes of political control. This took place during the previous
constitutional dispensation under various statutory provisions which
were effectively insulated against meaningful judicial control. Effective
judicial control was excluded prior to the commencement of the detention
and throughout its duration. During such detention, and facilitated
by this exclusion of judicial control, the grossest violations of the life
and the bodily, mental and spiritual integrity of detainees occurred. This
manifestation of detention without trial was a virtual negation of the
rule of law and had serious negative consequences for the credibility and
status of the judiciary in this country. 15
14
15
15
M Horkheimer ‘The authoritarian state’ in A Arato & E Gebhardt (eds) The
essential Frankfurt School reader (1982) 95 105. Perhaps no better explanation
exists for the current existential and political crisis in the West and in the Middle
East. More However, and more, as pessimistic economic as questions both Adorno are becoming and Horkheimer technical are ones. about Thethe
human privileged condition, position they of were administrative by no means officers fatalists. and technical Both imagined and planning that neo-
Marxist engineers dialectic will — as lose opposed its rational to liberal basis enlightenment in the future; conceptions naked power of development
becoming and progress its only — might justification. strengthen The ‘freedom’ awareness and that bring the about rationality the end of of
is
exploitation. domination See is T already Adorno & in M decline Horkheimer when Dialectic the authoritarian of enlightenment state takes (1972). over
De Lange society v Smuts is the NO real & basis Others for 1998 its identity 3 SA 785 with (CC), terrorism. 1998 7 BCLR 779 (CC) para 26.
Sachs J sounds similar concerns when he writes that in terms of the
M Horkheimer ‘The authoritarian state’ in A Arato & E Gebhardt (eds) The
essential Interim Frankfurt Constitution School ... reader the words (1982) ‘detention 95 105. without Perhaps trial’ no better stood explanation
alone as
exists an for express the current bar to existential physical restraint and political by the crisis State in the and West accordingly and the had Middle to
East. function However, as the as pessimistic sole textual as basis both for Adorno analysing and the Horkheimer constitutionality are about of allthe
human forms condition, of coercive they State were power by no involving means fatalists. physical restraint. Both imagined Now it that is just neo-
Marxist one dialectic item in an — as extensive opposed and to nuanced liberal enlightenment catalogue, and conceptions therefore needs of development
be and given progress a specific — might significance strengthen which ‘freedom’ both justifies and bring its place about in the the end list of
to
exploitation. and separates See T Adorno it from & M the Horkheimer other items. Dialectic It accordingly of enlightenment reclaims (1972). its
commonly accepted identity in South Africa as relating to a specific and
De Lange unmistakable v Smuts NO prohibition & Others of 1998 the 3 special SA 785 and (CC), intense 1998 form 7 BCLR of 779 deprivation (CC) para of26.
Sachs liberty J sounds that similar scarred concerns our recent when history. he writes that in terms of the
n 10 above, Interim para Constitution 173. ... the words ‘detention without trial’ stood alone as