'Africanise' SA's law?
2009-07-10 13:50
Cape Town - Cape Judge President John Hlophe said on Thursday that South Africa's legal system needs to be "Africanised", at a symposium organised by the Progressive Professional Network.
Constitutional law expert and Hlophe's sometimes critic, UCT's Professor Pierre de Vos, answered a few questions about Hlophe's comments.
Click here to read what Hlophe originally said.
News24: Do you think that Hlophe's calls are legitimate? Does he have a point?
De Vos: This call is not something new and is obviously aimed at bolstering Judge President Hlophe's "transformation" credentials, which are on the weak side. The South African law Commission prepared a report ten years ago on the harmonisation of the Roman Dutch common law and indigenous African Law but our government has not yet acted on it. Our Constitutional Court has also indicated that the common law and indigenous African law must now be viewed as equal parts of our law with the same status and possible effect. African customary law has always been the step child of our law and he is right that this should change. But on another level Judge Hlophe is barking up the wrong tree because our society is now governed by the supreme Constitution whose values should find their way into our law - whether these values are "African", "Western" or the values of Klingon.
News24: As a constitutional law expert, what do you think are the problems with his statements, if any?
De Vos: There clearly is a need to harmonise our law, and to give the recognition for customary law which it deserves and Hlophe is correct in pointing this out. But our law must also be brought in line with the values in our Constitution as required by the Bill of Rights. Some parts of African law are, unfortunately sexist, patriarchal, homophobic and anti-democratic and these must yield to the egalitarian ethos of the Bill of Rights. Also, one must make a distinction between the recognition for African custormary law - which is a deserving cause - and the propagation of the "Africanisation" of our law, which is a vague and nonsensical thing. Africa is a large continent with a wide variety of legal traditions and customs, so to speak of the Africanisation of South African law means nothing really.
News24: Should he have used different language - such as: making the legal system more relevant and accessible? Is the term "Africanised" problematic?
De Vos: Yes, it might have been made more sense to say that African customarry law should be given the recognition it deserves and that there is a need to harmonise the Roman Dutch common law with this customary law.
News24: Do you think that his views would be more palatable coming from someone else, given Hlophe's notoriety?
De Vos: The views expressed by Hlophe are not particularly controversial if one provides the necessary context. It was stated in a particular way which, as I have said, is vague and really nonsensical in order to bolster his transformation credentials. But placed in their proper context I see no problem with the statement.
News24: Judgments and legal documents in general are difficult for the average man on the street to understand. What is the solution to that, if any?
De Vos: Judgments and legal documents often deal with very complex issues and must rely on technical language to achieve the requisite precision required of the law. Within these constraints, judges, lawyers and legal drafters can try to write as simply and clearly as they can, but there is no way in which all legal documents could be simplified to such an extent that it would become immediately accessible toall South Africans - although law students would really like that to happen!
De Vos is a constitutional law expert and newly-appointed Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town. Her runs a blog, http://constitutionallyspeaking.co.za, which deals with social and political aspects of South African society - mostly from a constitutional perspective.