the facilities provided by the law were substantially the same for both groups.[1] In S v Pitje[2] where the appellant, an African candidate attorney employed by the firm Mandela and Tambo, occupied a place at a table in court that was reserved for “European practitioners” and refused to take his place at a table reserved for “non-European practitioners”, Steyn CJ upheld the appellant’s conviction for contempt of court as it was “… clear [from the record] that a practitioner would in every way be as well seated at the one table as at the other, and that he could not possibly have been hampered in the slightest in the conduct of his case by having to use a particular table.”[3]
[151]The above approach is unthinkable in our constitutional democracy today not simply because the law has changed dramatically, but because our society is
- ↑ Thus in Minister of Posts and Telegraphs v Rasool 1934 AD 167, which dealt with a challenge to a post office regulation requiring Europeans and non-Europeans to be attended to at separate counters, Stratford ACJ held that “[i]t would surely seem at first sight that the admission … to equality of service destroys at once the idea of partiality or inequality.” (At 173.) He went on to say:
“[A] division of the community on differences of race or language for the purpose of postal service seems, prima facie, to be sensible and make for the convenience and comfort of the public as a whole, since appropriate officials conversant with the customs, requirements and language of each section will conceivably serve the respective sections.” (At 175.)
De Villiers JA likened division on the ground of race to division on the ground of initial letters of one's name. Only Beyers JA and Gardiner JA confronted the racist social reality involved. Supporting the regulation, Beyers JA held that in the Transvaal Europeans and non-Europeans had never been treated as equal in the eyes of the law. “Afskeiding loop deur ons ganse maatskaplik lewe in die hele Unie”. (“Separation is to be found in all of social life in the whole of the Union [of South Africa]”. My translation.) (At 177.) Gardiner JA, on the other hand, regarded the regulation as invalid:
“In view of the prevalent feeling as to colour, in view of the numerous statutes treating non-Europeans as belonging to an inferior order of civilisation, any fresh classification on colour lines can, to my mind, be interpreted only as a fresh instance of relegation of Asiatics and natives to a lower order, and this I consider humiliating treatment.” (At 190–1.)
- ↑ 1960 (4) 709 (A).
- ↑ Id at 710.
In South Africa the Prohibition of Mixed Marriages Act 55 of 1949 prohibiting marriage across the colour line, and repealed only in 1985 was based on similar offensive notions.
