The FW de Klerk Foundation has said it is shocked – but not surprised – by recent comments about SA’s judiciary made by Western Cape High Court Judge President John Hlophe. Hlophe accused the judiciary ‘of being soaked in politics, battling to deal with transformation, and allowing apartheid-era judges to dominate the narrative’. Hlophe described SA’s law as 'a white man’s law imposed by colonialists and an infusion of English heritage and the Roman-Dutch law, which rendered it incapable of delivering justice for the common man’.
Hlophe continued that ‘race is very important given our (apartheid) past. So, any judiciary which is still white male-dominated can never be construed as legitimate’. In a statement by the foundation on the Politicsweb site, it says only 78 – or 34% – of SA’s 255 judges are white and very few hold top judicial positions. Only six of the 20 judges of the SCA and none of the nine judges now on the Constitutional Court is white – although this might change when two Constitutional Court vacancies are filled later this year. There is only one white judge among the 16 top judicial office bearers in the country – Judge Denis Davis, the Judge President of the Competition Appeals Court. The Chief Justice, the Deputy Chief Justice, the President of the SCA are black – and there is not a single white judge among the nine provincial Judge Presidents.
The statement says Hlophe is also wrong about the ‘white man’s law’. ‘SA’s foundational law, the Constitution, was adopted by freely elected representatives of the South African people – who were overwhelmingly black. Since 1994 all the country’s laws that have been adopted by a Parliament that is also overwhelmingly black. Surely, if Judge Hlophe had had such serious problems with the country’s system of law, he should not have sworn the oath to uphold it or accepted appointment as a judge to administer it?’ The statement on the Politicsweb site adds it suspects that Hlophe’s disenchantment with SA’s system of law arises from the fact that ‘after 14 years of serious complaints the legal system has finally found him guilty of gross misconduct’.