By Vernon Mchunu
DURBAN – EMBATTLED Western Cape Judge President John Hlophe has accused the judiciary of being soaked in politics, battling to deal with transformation, and allowing apartheid-era judges to dominate the narrative.
In a scathing criticism of the judiciary, Judge Hlophe described the country’s law as a “white man’s law” imposed by colonialists and an infusion of English heritage and the Roman-Dutch law, which rendered it incapable of delivering justice for the common man.
Judge Hlophe made the damning assessment of South Africa’s judicial system in a lecture he delivered on invitation by the University of South Africa’s Department of Public, Constitutional and International Law on Monday.
“South African judges are already steeped in politics, although they often deny this,” said Judge Hlophe, who faces an uncertain future pending a decision by the Judicial Services Commission (JSC) relating to findings of gross misconduct made against him by the Judicial Conduct Tribunal.
In a lecture titled “Law and Transformation”, he said that apartheidappointed judges had refused to testify before the Truth and Reconciliation Commission, and these judges remained vociferous today, rejecting any attempt at transformation.
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“They continue to ridicule those of us who drive the transformation agenda, calling us names and calling for us to be impeached. They use the law and other platforms to disguise their obvious political agenda.”
Section 174 of the Constitution called for the judiciary to reflect broadly on the racial and gender composition of SA in the appointment of “judicial officers”, he said.
“My understanding of this section is that when judges are appointed, the JSC … is bound to take transformation into account for purposes of making appointments to the bench. Transformation is, therefore, a constitutional imperative.
“In determining what changes are envisaged, we must look at what the situation was before the new constitutional era. We have a problematic judiciary which was appointed by the then National Party. Those judges were recruited almost exclusively from the ranks of practising white male advocates.
“Therefore, transformation in the historical context can only mean to move away from the situation whereby the judiciary was exclusively male-dominated and white dominated and recognise that there is a majority of black people in this country who had no franchise before and therefore could not even be elevated to the Bench.
“Race is very important given our (apartheid) past. So any judiciary which is still white male-dominated can never be construed as legitimate. It will continue to be regarded as a judiciary which was imposed to serve the interests of the white minority government.
“The law, which is still applicable even today, is the law that was imposed by our colonisers. It was forced down on us by the white judges who were appointed by a racist government,” Hlophe said.
He said in the Western Cape, major strides had been made as 42% of the 33 judges in the Western Cape Division were women. “And of course I have lost a lot of women who have been elevated to other courts, including the Supreme Court of Appeal. That is the primary meaning of transformation.”
The secondary interpretation was that of the mindset, said Judge Hlophe.
“Proving the change of mind and mindset is often the most difficult part. One cannot just assume that because a particular candidate is black that the candidate has embraced the Constitution. In the vast majority of cases, however, given our history, most black people embrace those values because that is what we fought for.
“At the same time, we often find resistance, certainly emanating from white quarters, people who have benefited in the past (sic). They would resist these changes and find other excuses for blocking a black candidate.
“Usually, they would say the candidate does not have experience in civil work or commercial law, but interestingly, when a white candidate has no experience in criminal law, which is often the case, the fact that the white candidate does not have much experience in criminal law is never held against a white candidate. But when it comes to black candidates, they would say this particular candidate may be good, but he does not have experience or that he did not practise as an advocate or attorney.”
The judge called for a revision of some of the rules of evidence which, he said, were archaic. He slammed the criminal law for concentrating less on the rights of the victim.
“Law is and has always been a powerful tool for engineering social change. The apartheid government through various legislation and judges who served under apartheid enthusiastically upheld apartheid laws such as the Group Areas Act. There is no reason why judges cannot use the law to benefit the poor when faced with social justice issues as there is an imperative to address the social ills that the majority of South Africans face.”
Nathi Mncube, judiciary spokesperson at the Office of the Chief Justice, did not respond to requests for comment by the time of publication.