Recorded: 29 August 2024
Background
The judgment in Rossouw v Sachs 1964 (2) SA 551 (A) was handed down sixty years ago on 24 March 1964. The Appellate Division of the old Supreme Court of South Africa ruled that detainees under section 17 of the General Laws Amendment Act 37 of 1963 (the so-called 90-day detention law) did not have a right to reasonable access to reading and writing material. The Act did not deal with the question in express terms. The court nevertheless concluded that, given the purpose of the detention regime, it could not have been the intention of the legislature that detainees should have access to reading and writing material. Simply put, the aim of the law was to induce detainees to speak. Given this policy objective, allowing detainees access to reading and writing material would defeat the purpose of the 90-day detention law.
The judgment can, in retrospect, be read as the intersection of several turning points.
For Albie Sachs, in whose name the application was brought, the judgment marked a turning point in his career as struggle lawyer. Sachs was released from his first solitary confinement under the 90-day law shortly before the judgment was handed down, but suffered the full force of the judgment during his second detention. He went into exile shortly after his release from detention and never practiced law again. Did the judgment leave a lasting impression on his view of the law, his scholarship, his activism, and his later work as judge on the
Constitutional Court?
The Rossouw judgement was also a turning point for the court. David Dyzenhaus marks it as such. According to Dyzenhaus, the judgment revealed how the Appellate Division was going to position itself towards the new legislative measures enacted by the apartheid government in response to the armed struggle. The judgment signalled a sharp turn towards an executive minded purposivism that broke with the older liberal tradition of statutory interpretation.
The Rossouw judgment was also a turning point in academic scholarship. On the one hand, the judgment inspired the academic perfection of the linear approach to statutory interpretation and a sharp debate between Cilliers and Wiechers about the role of common law presumptions in statutory interpretation. On the other hand, the judgment was the start of a sustained critique of the Court as executive minded, first formulated by Matthews and Albino, but soon refined by Dugard, Sachs, Corder, Forsyth, Dyzenhaus, Mureinik and Sachs. These scholars debated whether lawyers and judges still had any progressive interpretive possibilities available under apartheid statute law. Those like Raymond Wacks, who argued that progressive interpretations were no longer available called on judges to resign and to follow Sachs into exile.
The aim of the retrospective is to look back at these turning points and in so doing to ask whether Rossouw v Sachs also served as a reference point in the democratic turn of the 1990s and the consolidation of that turn during the 2000s and beyond? More specifically, to what extent did Rossouw v Sachs, and the turns it represents, play a role in the drafting of section 39(2) of the Constitution and a post-apartheid method of statutory interpretation?
