It’s a phrase that conjures up a bit of a kerfuffle, isn't it? 'Hurley burley.' It sounds like a lively, perhaps even chaotic, situation. And in a way, that's precisely what it was, and what it continues to represent, particularly when we talk about the intersection of justice and state power in South Africa.
This past year, the University of KwaZulu-Natal’s Ellie Newman Memorial Moot Court Competition, a venerable institution now in its 53rd year, took on a theme that resonated deeply with this very notion. Partnering with the Denis Hurley Centre – an NGO dedicated to supporting homeless people and refugees in Durban – the moot court tackled issues that, disturbingly, still echo the injustices of the past.
The inspiration for this collaboration was poignant: the 40th anniversary of the illegal detention of Paddy Kearney. Kearney, a respected Durban peace activist and former lecturer, was detained without trial in August 1985 by the apartheid security police. This was a common, brutal tactic of the era, a way to silence dissent and oppress those deemed a threat to the state. But Kearney wasn't left to languish. He had a formidable champion in Archbishop Denis Hurley.
Archbishop Hurley, a man of immense moral conviction, was outraged. Despite the apartheid government's threats, he didn't hesitate. He immediately launched a legal challenge against the minister of law and order, demanding Kearney's release. The heart of this legal battle, as it often is, lay in the interpretation of a few crucial words: 'reason to believe.'
Judge Ramon Leon’s ruling was groundbreaking. He asserted that 'reason to believe' necessitated specific, demonstrable grounds for detaining someone, grounds that had to be presented in court. When the police faltered, either lacking legitimate reasons or unwilling to expose their intelligence sources, the judge ordered Kearney's immediate release. It was a victory for justice, a significant restraint on unchecked official power, and a precedent that protected countless others from arbitrary detention. As Chris Nicholson, junior counsel in the case, famously quipped, "In the hurley burley, you need the burly Hurley." This case, and Hurley's unwavering stance, is still a vital lesson taught in law schools today.
But here’s where the story takes a turn that might make you pause. Does this history, this triumph of justice over state overreach, still hold relevance in our democratic South Africa? We have a constitution, an independent judiciary, a regulated police force, and a free press. So, what could possibly go wrong?
Well, for those on the margins – the homeless, the refugees, the vulnerable – the answer can be disheartening. The moot court competition this year presented a fictional scenario mirroring the harsh realities faced by many. A municipality, using its power to demolish the shacks of homeless people and discard their belongings, including vital identification and medical records. For some older activists, this conjured the painful memories of apartheid-era forced removals. For those experiencing it today, it’s a stark, current reality, a betrayal by the very authorities who claim to aspire to create a 'caring and liveable city.'
The young law students were tasked with arguing the legality of these actions and the by-laws that supposedly justified them. It’s a challenge that Archbishop Hurley, who honed his debating skills as a young priest, would have relished for its legal intricacies, but more importantly, would have understood from a moral standpoint. He would have been as incensed by the fictional municipality's actions as he was by the state's oppression of Paddy Kearney.
Forty years ago, there was no robust constitution to shield the vulnerable from the capricious whims of those in power. Today, we have one. And that, perhaps, is the most infuriating aspect for someone like the Archbishop, were he alive now: seeing that constitution, our bulwark against injustice, so readily ignored.
