Kafka’s African nightmare — bureaucracy and the law in pre- and post-apartheid South Africa

Abstract

This article sets out to examine the legal system of both pre and post-apartheid South Africa, through the lens of Franz Kafka’s seminal novel “The Trial”. The central contention of the article is that Franz Kafka’s nightmare vision serves not only as a historical point of reference anticipating the insanity of the apartheid legal bureaucracy, but also acts as an injunction to South Africa’s judges and lawyers to ensure that the legacy of the apartheid period does not negatively affect service delivery in post-apartheid democratic South Africa. The article begins with a discussion of the truly Kafkaesque nature of law in South Africa during the apartheid era. The main legislative pillars of the apartheid system are discussed, as well as the human cost exacted by apartheid policies. The article then moves to a discussion of the South African legal system following the apartheid era. While acknowledging the massive shift away from the nightmare of apartheid, certain disturbingly Kafkaesque trends are noted within the bureaucracy serving the democratic South African state.Various efforts by the South African legislature and courts to combat these trends are analysed and discussed, including various legislative measures enacted since the demise of apartheid, and the development of innovative supervisory interdicts by the courts.