06 Sep 2007: ISS Today: Transforming the South African Legal System

6 September 2007: Transforming the South African Legal System

 

The subject of the transformation of South African society is one of the most topical issues in this country. Misunderstanding of what transformation of the legal system means immediately becomes apparent. (See the Policy Document on Transformation of the Judiciary discussed at the recent ANC policy conference held at Midrand). In this regard, too much emphasis is placed on the appointment of more black and women judicial officers, i.e. judges and magistrates. The appointment of more blacks and women as judicial officers can, however, not bring about the transformation of the legal system the constitution requires.

 

The legal system of a country comprises a number of aspects other than the judiciary. It is also made up of institutions - such as the courts and other tribunals involved in the dispensation of justice - as well as laws and rules. The latter should ideally be substantive laws and procedures that are ‘homegrown’ and to which people have an affinity and with which they identify and respect.

 

The constitution acknowledged existing laws when it came into operation, and it furthermore sanctioned their continuation in so far as they are not inconsistent with it. Since then aspects of existing statutory law (including Acts of parliament, Ordinances of provincial authorities and bylaws of municipalities) that were palpably inconsistent with the constitution, particularly its Bill of Rights, have in most cases been repealed. However, the bulk of the so-called common law and procedural law remains intact. Almost the entirety of the common law is comprised of laws that are not our own, laws emanating from the Roman-Dutch and English legal traditions. Most of the principles of these sources of law can never be truly understood and empathized with by South Africans and, therefore, South Africans can have no affinity with them. Consequently, there can be no respect for those laws.

 

Though the Dutch and English respectively introduced Roman law and English law when they colonized South Africa, in their respective countries they never applied such a hybrid of laws. The Dutch have, as a matter of fact, jettisoned the Roman aspect of the laws they introduced in this country and have designed home-grown law of their own. The same is true of the English – they have over time moved away from many of the legal principles that were transplanted here. South Africans are, nonetheless, still caught within the net of that hybrid.

 

The work of the South African Law Reform Commission (SALRC) in recommending changes in some laws is to be lauded. Current efforts, however, fall well short of meeting the requirements of the constitution. One important new development, the proposed Interpretation of Legislation Act, seeks to make the consideration of the constitutional Bill of Rights compulsory whenever legislation is to be interpreted by the courts. This is important, as the Bill of Rights is often not given consideration in judgments handed down by our courts. The proposed act does however fall short in that it does address the important question of the interpretation of the common law, not does it give guidance regarding the weight that should be given to precedent-setting decisions that were handed down before the Bill of Rights was in place. This illustrates the fact that, while we are moving in the right direction, the South African legal system is still in considerable need of transformation.

 

Jake Moloi, Crime and Justice Programme, ISS Tshwane (Pretoria)