Sins from the Past and Lessons for the Future: Eliminating Apartheid in South African Public Accommodations and the Challenge to an Enlightened Judiciary

Abstract

This article examines the role of judges in the creation and maintenance of Apartheid in the area of public accommodations. Repudiating the theory that the judiciary was powerless this article contends that the judiciary contributed to the enhancement of Apartheid in public accommodations. Through judicial reasoning that reflected racial bias, more often than not, judges went beyond the legislative mandate in upholding racial segregation and discrimination in public facilities. Oftentimes, the judges appeared to be deaf, dumb, and blind to the harmful realities of Apartheid. Most of their decisions, and the reasoning upholding them, represent a judicial endorsement of a system based on racial oppression. It would be a mistake not to recognize the judiciary's role such oppression and consequently fail to address potential problems created by these judges. Accordingly, in order to completely eliminate all vestiges of Apartheid in public accommodations, not only must there be statutory and constitutional guarantees of equal access to facilities, but there must be a change in judicial interpretation of these new laws.