Judge Hlophe slams judiciary

WESTERN Cape Judge President John Hlophe has accused the judiciary of being soaked in politics, battling to deal with transformation, and allowing apartheid-era judges to dominate the narrative.

In a scathing criticism of the judiciary, Judge Hlophe described the country's law as a “white man's law” imposed by colonialists and an infusion of English heritage and Roman-Dutch law, which rendered it incapable of delivering justice for the common man.

He made the assessment in a lecture he delivered on invitation by Unisa's Department of Public, Constitutional and International Law on Monday.

“South African judges are already steeped in politics, although they often deny this,” said Judge Hlophe, who faces an uncertain future pending a decision by the Judicial Service Commission (JSC) relating to findings of gross misconduct made against him by the Judicial Conduct Tribunal.

In the “Law and Transformation” lecture, Judge Hlophe said that apartheid-appointed judges had refused to testify before the Truth and Reconciliation Commission, and these judges remained vociferous today, rejecting any attempt at transformation.

“They continue to ridicule those of us who drive the transformation agenda, calling us names and calling for us to be impeached. They use the law and other platforms to disguise their obvious political agenda,” he said.

Section 174 of the Constitution called for the judiciary to reflect broadly the racial and gender composition of South Africa in the appointment of judicial officers, he said.

“My understanding of this section is that when judges are appointed, the JSC ... is bound to take transformation into account for purposes of making appointments to the bench.

“Transformation is therefore a constitutional imperative,” Judge Hlophe said.

“In determining what changes are envisaged, we must look at what the situation was before the new constitutional era. We have a problematic judiciary which was appointed by the then National Party. Those judges were recruited almost exclusively from the ranks of practising white male advocates.

“Therefore, transformation in the historical context can only mean to move away from the situation whereby the judiciary was exclusively male-dominated and white-dominated, and recognise that there is a majority of black people in this country who had no franchise before and therefore could not even be elevated to the bench.

“Race is very important, given our past. So any judiciary which is still white male-dominated can never be construed as legitimate.

“The law, which is still applicable even today, is the law that was imposed by our colonisers. It was forced down on us by the white judges who were appointed by a racist government,” Judge Hlophe said.

Spokesperson for the Office of the Chief Justice Nathi Mncube acknowledged receipt of a request for comment on Hlophe's assertions but failed to respond.