Yes, we should “Africanise” our law

Controversial Cape Judge President John Hlophe created quite a stir last week when he told a symposium in Durban that South African law needed to be “Africanised” to make it more relevant. I don’t see what the fuss is about. Clearly Hlophe has a point when he says:

I believe that people need law that embodies their own culture and their values. We need to Africanise our law and make it relevant to the masses. There is a huge void in our legal system… If we do not transform the legal system we will have a problem because people will not identify with the system. 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.

If I understand him correctly, Hlophe is saying that the law obtains its force not (only) through the violence it can visit upon inividuals through the application of judicial and state power, but (also) through its legitimacy. When people feel that the law reflects, at least partly, their own aspirations and identity, they are more likely to respect and follow it.

Personally I would prefer to talk about the “South Africanisation” or “indiginisation” of our law, given the fact that “Africanisation” is not a term that tells us with sufficient precision what is required. Africa – like Europe – is a large continent with many different legal traditions and systems and it might not be very helpful to talk of the “Africanisation” of our law because it could mean many different things.

My terminology would also avoid the impression that it was possible for our law ever to be fully emancipated from its colonial roots – as if somewhere there was such a thing as “pure” African law that we could fall back on. The romantic notion that there was a “pure” African system of law, uncorrupted by our colonial experience, might be emotionally appealing but does not accord with the harsh realities. Colonialism has for ever changed South Africa (and the rest of Africa) and it would be foolish to deny this.

However, the more interesting (and more difficult and complex) question is how our law could be “indiginised”, given the vast and powerful influence of the Roman Dutch common law on our legal system and the constitutional imperative that  when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

Luckily, those pesky counter-revolutionaries on the Constitutional Court (and even some judges on the Supreme Court of Appeal) have been grappling with this question for several years now and have, in effect, been “indiginising” (or “Africanising”) our law for many years. Whether judges and lawyers have been taking notice of this fact is, of course, another matter.

For example, the Constitutional Court has relied on the Bill of Rights to begin to refashion the Roman Dutch law principles of ownership which were used during the apartheid era to legitimate the “consequences of manifestly racist and partial laws and policies” in order to strike a better balance between private property rights and the public duties of property owners.

The court pointed out that traditional Roman Dutch property law  failed to take account of the inherent tension between individual rights to property, on the one hand, and the social responsibilities of property owners, on the other. It was therefore required, said the Court in the First National Bank case “to move away from a static, typically private-law conceptualist view of the constitution as a guarantee of the status quo to a dynamic, typically public-law view of the constitution as an instrument for social change and transformation under the auspices of entrenched constitutional values.”

Similarly justice Sachs and Mokgoro (how they will be missed!) infused the law of defamation with the value of ubuntu – botho by proposing a remedial shift in the law of defamation from almost exclusive preoccupation with monetary awards, towards a more flexible and broadly-based approach that involves and encourages apology. Ubuntu, Sachs wrote:

has an enduring and creative character, representing the element of human solidarity that binds together liberty and equality to create an affirmative and mutually supportive triad of central constitutional values. It feeds pervasively into and enriches the fundamental rights enshrined in the Constitution.

And in the field of criminal law, in the case of S v M, Justice Sachs once again relying on the value of ubuntu read with the right of children to parental care, applied the principle of restorative justice and ordered that a mother of three children convicted of credit card fraud should not be sent to jail.

In these cases the Constitutional Court demonstrated that our constitution contains indigenous values which should permeate our law. Although it was not possible to ditch the Roman Dutch common law in its entirety, when courts developed and applied the common law these values could be used to bring the law closer to the people, so to speak.

I have not had sight of Judge President Hlophe’s full remarks so do not know whether he might have sited these or other similar Constitutional Court judgments to bolster his case. If he did, good for him. If he did not, I hope he (and all other judges) study these cases to see how our law can be indiginised within the disciplining framework of our very homegrown Constitution.

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