‘A small measure of fairness’: Black South Africans and the Courts, 1919–1938

During the 1920s and 1930s, black South Africans were subjected to a large number of discriminatory laws. African leaders of the time decried both this and the iniquities Africans faced when dealing with the justice system. Curiously, though, some of those same leaders expressed confidence in South Africa’s judges and the balanced approach with which they ran their courtrooms. In this article, we explore the accuracy of those statements by seeking quantifiable evidence that South Africa’s judges acted impartially toward African defendants standing before them. The evidence of hundreds of criminal review and criminal appeal judgments demonstrates that Africans were subject to considerably different standards of fairness, depending on where within the judicial system their case was heard. Alleged violators of the law were usually tried first in the magistrates’ courts. Magistrates were government civil servants, and their courts were crowded venues in which decisions were often meted out too quickly and on limited evidence. A fair hearing was often denied. However, an unusual oversight system, consisting of automatic reviews and initiated appeals before trained judges in the country’s superior courts, led to impartial hearings and a small measure of justice, with judges regularly overturning magistrates’ decisions. Judges intervened in the decisions of magistrates when they determined that there had been errors of law or irregularities of trial process or sentencing that led to failures of justice that were prejudicial to defendants. We conclude that, at least in some circumstances, Africans could anticipate an impartial hearing before the country’s judges, and that the stated confidence in judges was not without foundation.