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Hastings International and Comparative Law Review

Authors

Heinz J. Klug

Abstract

South African courts function as an integral part of the apartheid system, enforcing apartheid legislation on the one hand while suppressing resistance by the black majority on the other. First, this Note analyzes the existing judicial order in South Africa focusing on its development in the context of the apartheid system. Second, this Note compares the experiences of judicial transformation following political revolutions in Zimbabwe, Mozambique, and Nicaragua.. The comparison serves to identify how different factors, including varying forms of political transformation and social resources available to a new government, produce constraints and stimuli to judicial transformation. Finally, this Note examines the emergence of people's courts in South Africa during the 1984-87 political uprising as an indication of alternative forms of judicial organization that may emerge in a future nonracial democratic South Africa. The author concludes that the form a new judicial order will take in a nonracial democratic South Africa will be mediated by the process of political and constitutional transition. This process will determine both the timing and extent of judicial transformation, and will reflect the tension between varying social interests in the new society.

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