Hlophe: Africanise legal system

2009-07-11 00:00

SOUTH African law needs to be “Africanised” to make it relevant to the masses, according to Western Cape Judge President Mandlakayise John Hlophe. “If we don’t transform the legal system, we are going to have problems,” he warned.

Speaking at a meeting of the KwaZulu-Natal Progressive Professional Network in Durban on Thursday evening, Hlophe argued that unless people see themselves, their culture and their values in the legal system, there is little hope of them obeying the law or taking pride in it. He said colonisation “superimposed” a foreign system of law, a “fusion” of Roman Dutch Law and English law, on existing indigenous legal systems.

Expanding on the evening’s topic — how the doctrine of legitimate expectation can be used to aid transformation — a relaxed and jovial Hlophe said: “Law is an instrument for engineering social change. I challenge anyone who denies that.”

He argued that citizens have a legitimate expectation that the legal system will be overhauled to make it more accessible.

Hlophe, who was recently tipped for the position of Chief Justice, said the Constitution places an obligation on the judiciary to advance the use of indigenous African languages in courts, including the higher courts, because interpretation inevitably causes the “dilution” of the meaning.

Other ways to improve access to the legal system, he said, includes keeping judgments simple and short, avoiding Latin phraseology and encouraging less reliance on foreign case law.

Falling just short of a legally enforceable right, Hlophe said in South Africa, the doctrine of legitimate expectation — imported from English law and first used in a reported South African case in 1981 — is “sufficiently developed” in South African law to aid transformation.

The doctrine could be understood as a “reasonable” expectation to a fair hearing before a decision was taken and could also mean the expectation of a favourable decision, he said.

During question time, Hlophe agreed that President Jacob Zuma’s legal counsel could have argued that Zuma had a legitimate expectation, based on National Prosecuting Authority head Bulelani Ngcuka’s initial decision in 2003 not to charge Zuma, that he would not be re-charged or, at the very least, would have been “engaged” before being re-charged.

Introducing Hlophe, Professor Mandla Mchunu described him as a “rising star” who idolises justice.

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