Should Member States of the African Union Reform Their Judiciary?

Our organisation Liberty Fighters Network (LFN) is currently challenging the monopoly of South Africa’s legal profession over our Courts by actively advocating that any person may be represented by a person of his/her own choice notwithstanding that such a person is or is not a legal practitioner where any non-legal practitioner may then not expect any fees in return.

We were already successful in one reported High Court case 10 & 10a Kenmere CC v Ndebele and Others (2018/31110) [2019] ZAGPJHC 199 (19 June 2019) to have achieved victory in that field, unfortunately, this matter is also still on appeal to our Supreme Court of Appeal awaiting final confirmation.

We are of the view that Article 7(1)© of the African Charter ensures such right to all our citizens, but unfortunately, our Government has been lacking transition and only incorporated this right in few specialized Courts like the Equality Court and in limited form in the Harassment/Domestic Violence Courts where the latter only provides for the applicant to have someone else refer the matter to the Court and not for the respondent as well which I think is unconstitutional in its own right.

South Africa has a judiciary just like many other countries in Africa still founded on traditions of the colonial rulers with our Advocate Bars still following very much the same traditions like the ones in Britain our judicial system is mostly based on. The black robes and practices are still the same and we believe that our country should build a judiciary incorporating all but in a less formal environment where it is easy to represent oneself knowing that the presiding judge is competent enough to follow an inquiry process rather judging who presented the best legal arguments.

The black robes and prefixes of “My Lord, My Lady, Your Worship, etc.” must go! Formalities must make way for a courtroom to respect that we are all different and differently educated with different financial resources to obtain the services of an expert legal practitioner or not.

Am I just ahead of my time or are their others who believe that the time to reform our judiciary is now and we don’t have any further time to waste achieving this?

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Hello, Here, in Canada, there is a debate about the affordability of the legal services. The law society is very protective about providing legal advice which is good in respect of the quality of the service. The problem is that the fees are high which makes the society and the law companies to be very innovative and to use different tools to reduce the fees and to use the technology in order to ease the provision of legal services. The technology is rapidly changing the legal industry and this is very exciting because the ultimate goal is to help to the customers. I read about a legal company in South Africa which is using cartoons to help the customers to get a proper and understandable legal advice. This is so cool! Alexandar

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That is also my desire for the Nigerian courts. The use of my Lord or worship are mostly meant for the Creator God Almighty who created man, so man should not call another man Lord or my worship. It means that the person being called my lord or my worship is taken the place of the High being whereas all men are born equal. Also taking oath with the Holy Bible is a violation of the biblical faith, therefore people should not swear to the Bible in our courts, @reynoDB you are on point, we have like mind, thank you for bringing this, and one day I will file an application on the subject in court. Once again thank you.

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Love to discuss matters of real interest with like minded people. I agree, that if one follow the history behind the “lordship, worship” and the like, one will find that its nothing more than raising themselves above God. I have stopped using those prefixes as far as possible in our Courts, but sometimes one doesn’t want to start a case on a bad foot but then I rather stick to “Justice XYZ” instead.

We are currently running a very interesting matter of discrimination of self-represented people in our Courts of South Africa through the African Commission on Human and Peoples’ Rights and hope that it will be seized during February 2020 on their next session.

In Zimbabwe, this debate needs to be addressed as well. In a society where might is right, those in the social echelons of power and health have taken hostage of the law. Access to justice is now a preserve of the rich and powerful. the general citizenry which is poor cannot access legal representation in the courts of law because they cannot afford the prohibitive legal fees being demanded by legal practitioners. Hence, access to justice must be delimited to community paralegals and any member of society with the state of mind and appreciation of the case in question. Nonetheless, the country is undergoing an economic crisis which has ripped off the pockets of many!!!

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Good morning, I visited Zimbabwe in 1986 and this was well looking country. What happened and how the country was brought to this crisis? Thank you. Alexandar

1986 was 34 years ago!!! so much happened in the past 3 decades under Robert Mugabe up to his demise in 2017. even now with Mnangagwa his former deputy… its just the same old rickety truck with a new driver whom many consider worse off than his predecessor. Years of mismanagement, corruption in state institutions, electoral fraud, human rights violations, political victimization, economic meltdown and bureaucratic seizures.

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Hopefully there will be change in the future. I think Zimbabwe has a great potential in many industries including tourism, agriculture. Cheers, Alexandar

Hello everyone, We have a cold winter day in Southern Ontario. In Newfoundland is much worse and the snowstorm is very strong. I am wondering are there community paralegal programs in South Africa and Zimbabwe? I am convinced the people there need them. Probably in the rural areas the access to justice is much more difficult. Cheers, Alex

Just like in South Africa, and SA having such a close relationship with Zimbabwe, your country also still use English Law and court procedures as its basis which I believe is the main culprit here.

Both Zimbawe and SA (not even mentioning the other African Union countries in similar situations) can only reform its judiciary and make it more accessible to the man on the street when we start to revolt against these British colonial practices. These systems might work in a developed nation like the UK, but in developing countries like ours we need a more inquisitorial court system where legal costs are carried by each person instead of legal costs granted for a successful party.

That way the carrying of costs in person will be a bar to those who have abused that system, mostly the banks and rich landlords, thinking that costs will be carried by the party without legal representation. Going to Court and be able to properly present your case should be a right and not a privilege.

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As a South African, where it is estimated that around 20 million Zimbabweans have fled to our country of which most are undocumented immigrants, the biggest problem was that the late Robert Mugabe dared to challenge the West in its capitalist outlook which system is not suited to developing nations in Africa.

I’ve seen it in SA too, where the international community simply don’t understand how colonialism could have negatively affected Africa and its judicial system, but if Europeans had hundreds of years’ experience with these systems one simply can’t expect that Africans had to easily fall in with it at the same pace and that is where Europe has failed when colonialism was implemented. There was never a real opportunity where Africans could come up to speed and fall in with it.

The late Dr. Hendrik Verwoerd, the first Prime Minister of the Republic of South Africa after independence from UK, had a plan to bring everyone on the same level by establishing Tribal States, unfortunately before he could have introduced this mechanism fully he was assassinated after not even serving 5 years in office shortly after JFK and accused today as the architect of Apartheid which was never the case.

The British judicial system was created for the UK and Africa countries must develop their own judicial system taking proper consideration of traditional law. SA is trying its best to include tribal councils, but it always ends that the tribal decision can be overruled by the national Court system. It’s basically a special arbitration tribunal instead of an actual tribal council.

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Good morning, I believe the traditional legal systems can be very successful when dealing with issues among the members of the tribes. In Canada the government already introduced a pilot project about the use of the traditional legal practices of the Native people. Cheers, Alexandar

Hi. We have community programmes, but the paralegal profession is very much frowned upon by the legal profession and not supported at all. The legal profession (who is ultimately the ones writing the laws and judges elected from it too) is very much restrictive and have a self-entitlement to our courts in South Africa and I think that Zimbabwe is not much different.

We are busy changing the tides, but it is an uphill battle with a lot of restrictions from the legal profession.

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I see the paralegals can help to the low income people. Are there community paralegal network organized by Namati in South Africa. Seems to be very successful. Thanks, Alexandar

In a first world country, it is easy to integrate tribal councils without much hassle I believe. However, with developing countries its very difficult to change the current dysfunctional system into one of tribalism while there are budget constraints. The feeling is to continue with the current system and make it work, but after 26 years of democracy that approach has proved not to work.

Our government loves to come with groundbreaking ideas by for instance have a special Equality Court addressing discrimination matters where anyone may be represented by anyone, but then that Court is highly underutilized and judicial officers of this Court tend to rather refer matters to other “more suitable” forums like the Human Rights Commission than dealing with those disputes themselves. It’s easier to shift the buck to someone else.

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No, not that I am aware of. Paralegals are imperative in any developing nation. Is there a way Namati can assist starting such programme in SA?

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