calendar year. While a high score on the index may be taken to indicate that the courts deliberate with great care on the decisions that are reached, it also implies that the costs of
litigation are likely to be high, thus raising the barriers to proper enforcement of property rights. It is in the latter sense that we employ the index. Fig. 6 illustrates the two measures
of what we term the “efficiency” of the magistrate court system in South Africa.
We present two alternative indicators of judicial activity. The first is the number of magistrates court criminal and civil cases per unit of population, and the second the number
of magistrates court criminal and civil cases per unit of GDP. These are presented in Figs. 7 and 8 respectively.
The three sets of indicators show similar patterns. All show a marked rise in the number of criminal and civil cases per bench hour, per population unit and real GDP unit over the
1945– 60 time frame. All remain in a narrow, constant band over the remaining time period, to 1996.
If the indicators are plausible proxies for institutional efficiency, therefore, there is a suggestion of declining efficiency in the post war era, while the post-1960 period has seen
little alteration in the efficiency of rights enforcement mechanisms.
8. An index of political instability
While the South African state has been subject to relatively unique time paths in both property rights and politico-civil rights, it has also been perhaps precisely because of its
rights structure subject to ongoing, systematic challenges to its legitimacy, with the conse- quence of recurrent phases of instability.
Fig. 5. Alternative Intellectual Property Rights Proxies 120
J.W. Fedderke et al. International Review of Law and Economics 21 2001 103–134
Fig. 6. Enforceability Index based on Criminal Civil Cases
Fig. 7. Magistrates’ CriminalCivil Cases per Population Unit 121
J.W. Fedderke et al. International Review of Law and Economics 21 2001 103–134
In order to control these sources of political instability, the South African state over time introduced increasingly repressive legislation. These have already been detailed in
connection with the rights indexes outlined above. The useful corollary is that periods of instability are directly observable in terms of the number of prosecutions undertaken in
terms of the legislation designed in order to act as vehicles of repression. It is this observation that informs the identification of the majority of the components of the
instability index.
An important modulation on this methodology is necessary during the course of the 1980s, in which repression of dissent increasingly took the form of extrajudicial intervention such
as detention, political assassination, disappearances, etc.. Fortunately the South African Institute of Race Relations maintained a careful monitoring exercise, particularly of deten-
tion without trial, and we made extensive use of this resource.
The political instability index thus also serves to separate the formal de jure political and civil rights from their de facto realization. The latter index is constructed on the basis of
official and unofficial sources, which we place in a weighted composite index of instability in accordance with alternative weightings. The series contain the following components:
Y The number of prosecutions under the Defense Acts,
22
and Emergency regulations.
23
Y The number of prosecutions for “faction fighting.”
24
Y The number of people proscribed andor banned under the Suppression of Communism Act 1951.
25
Y The number of people placed in detention.
26
Y The number of political fatalities. Y The number of organizations officially banned.
Fig. 8. Magistrates’ CriminalCivil Cases per Real GDP Unit 122
J.W. Fedderke et al. International Review of Law and Economics 21 2001 103–134
Y The number of actions against “riots.” Y Declarations of official states of emergency.
Y The number of publications subjected to censorship.
Given the uncertainty surrounding the appropriate weighting of the components of the repression series, we presented a number of different weightings to a panel of South African
experts drawn from a range of disciplines.
27
We present the three weightings considered in Figs. 9, 10, and 11.
Their consensus is the index given by Fig. 11. The implication is that the peaks of repressive activity in South Africa occur during the 1964, 1976 and mid-1980 periods of
strong oppositional activity against the Apartheid system.
9. An index of parliamentary political party fractionation
