The iafrica.com debate

Ebrahim Moolla reckons that Africanisation of our judicial system has already been going on for many years...

The South African law of defamation has been infused with the value of ubuntu. This is not a recent development but a proposal championed by the late Justice Sachs and Mokgoro focusing the legislation not on monetary awards but a flexible gavel encouraging apology.

So while Judge Hlophe is to be commended for his progressive sentiments, the truth is, the Africanisation of our judicial system has been going on for many years.

Roman legal pioneer the Emperor Justinian himself would be proud of the raw idealism evident in Hlophe’s statement: "We need to have a situation where people obey the law not because they fear being sent to jail, but because they feel it is the right thing to do and something they are proud of."

It is plainly evident that our judicial system is in urgent need of reform, and credit must be given where it is due. Play the ball and not the man. The much-maligned Hlophe may not be a saint but his delivery is sound: I prefer to steer clear of ironies and invoke that central piece of Roman Dutch law, innocent until proven guilty. Allow me to play this ball on its merit.

Hlophe’s words have the power to reignite Mbeki’s suspended African renaissance and herald a return to reconstruction and development. He can be forgiven for not going into specifics. There can be no doubt he is recommending a mammoth undertaking, far too much for one man or one speech, or even one lifetime.

The key is to acknowledge the law as a living, breathing organism, growing with precedent and participation. If the law is to be a reflection of our identity as South Africans, resonating within each of us, related to and respected, it can’t be seen as a dusty parchment from the middle ages, or worse, an oppressive phantom. Forget the Dutch, give the people Afrikaans.

Don't forget that the exalted Roman Dutch law is in itself, a product of evolution, and was manipulated by the apartheid regime to provide moral credence to the architecture of prejudice.

It is intellectual lethargy to start spouting that embittered drivel about murder and rape being condoned under indigenous law, about Africanisation implying that we resort to donkeys and shawls. For many it holds negative connotations — backward, barbaric, obscene.

I like the word. I like the idea of adaptation, drawing on the strengths and wisdom of the multitude of cultures that make their home in this country, on this continent. I like the idea of an Africa, not a source fear or shame, but an innovator with far more valuable exports than natural resources. And most of all, I like the thought of an Africa where rule of law is paramount and crime is on the backburner.

And yes, though it lingers like the flavour of a piece of two-week old chicken that emerges from a cavity, colonialism has made an indelible print on our history and cannot be ignored. There are many lessons to be learnt from the West (and East for that matter) but I take exception to adopting the judicial equivalent of a McDonalds drive-through.

I don't write this with the slaves of paranoia in mind — we have the Bill of Rights, Constitutional Court and other checks and balances for reassurance. This is For the criminal who is an outlaw by default because he is estranged from decree. The innocent who can’t make R1000 bail and has to stick out the six months till his court date with 25 other inmates in a holding cell the size of a taxi cubby. The witness whose testimony is garbled through an inept interpretation. And for so so many who can’t access the law and are unaware of their rights, and exploited because of it.

Ultimately though it matters little what I or Rebekah have to say on the subject. Africanisation is already here and gathering force like a rolling tribal drum over the veld.

Rebekah Kendal reckons that Judge Hlophe's real agenda, hidden in the guise of heady incantations of Africanism, is actually spelt c-h-i-e-f j-u-s-t-i-c-e.

It is tempting to reject anything suggested by Judge Hlophe simply because it has been suggested by Judge Hlophe. Seriously, the guy pulled a sickie to get out of his own hearing. He also, by implication, called the entire bench of Constitutional Court judges liars.

But doing so would be... well... not a hell of a lot better than a judge who accuses a bunch of other judges of racism simply to deflect attention away from his own questionable business activities.

Judge Hlophe's suggestion that South African law needs to be 'Africanised' is a bad idea simply because it is nothing more than cheap rhetoric. In his efforts to prove that he is more committed to judicial transformation than all those other black judges who might have their eyes on the chief justice wig, Hlophe has made sweeping – but ultimately meaningless – propositions.

"I believe that people need law that embodies their own culture and values. We need to Africanise our law and make it relevant to the masses."

Africanise. Hmm... what, exactly, does that mean? Africa is not one big homogenous country. Values and cultures across this vast and varied continent differ enormously. More often than not, the Africa invoked by those speaking wistfully of Africanisation is a pre-colonial, pre-industrial, pre-democratic Africa.

For better or worse, that Africa no longer exists.

Modern South Africa has all the trappings of 21st century modernity — attempting to monitor a society modelled on a Western democracy with a discordant judicial system would, at the very least, be pointless.

While the judicial system certainly needs to undergo further transformation — more South Africans need access to courts and they need to be able to participate in their own languages — the proposition that the law must reflect the values of the people is a little (one suspects intentionally) naïve.

The values of South Africans, as a nation, leave a lot to be desired. If the laws reflected the values of South Africans, there would be very little that was against the law. Unless, of course, we're only talking about the values of those good, law-abiding citizens. Laws, if anything, should reflect the ideals of the society, not its values.

Furthermore, the suggestion that if the laws are more 'African' (whatever that may mean), the masses will suddenly buy into them and start self-policing, is ludicrous.

"We need to have the situation where people obey the law not because they fear being sent to jail, but because they feel that it is the right thing to do and something they are proud of."

Agreed.

But the situation Hlophe is referring to is more generally known as a utopia. A place occasionally called Africa by politicians with agendas of their own that have nothing to do with ubuntu.

Do you agree with Ebrahim or Rebekah? Share your thoughts below...

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