ANDILE LUNGISA

The judiciary in South Africa cannot be understood as a neutral arbiter floating above society. It has always been embedded in power, constructed, shaped and deployed to defend particular political and economic orders. From colonial conquest to apartheid, the law was not merely a system of rules, it was a weapon.

The courts were not sanctuaries of justice, rather they were instruments of control, disciplining those who dared to resist dispossession, subjugation and racial domination.

Colonialism did not arrive with chaos, it arrived with law. The violence of conquest was quickly clothed in legal language to give it legitimacy. Indigenous sovereignty was not merely crushed militarily, it was invalidated juridically. The courts became the machinery through which dispossession was normalised and resistance criminalised.

Autshumao, one of the earliest Khoi leaders to confront Dutch colonial encroachment, was not treated as a political actor defending his people’s autonomy. He was reduced to a “criminal” within a foreign legal system that denied the legitimacy of his resistance. His detention was not justice, it was the assertion of colonial authority masquerading as law.

King Dinuzulu kaCetshwayo faced a similar fate. After the destruction of the Zulu kingdom, the colonial judiciary pursued him relentlessly. His prosecution for alleged rebellion was less about any concrete crime and more about extinguishing a symbol of African sovereignty. The courtroom became an extension of the battlefield, another terrain where colonial power sought total victory.

Chief Maqoma, Makhanda and Chief Langalibalele of the AmaHlubi were arrested and tried for refusing to submit to colonial demands, particularly the imposition of disarmament laws that were designed to render African communities defenceless. Chief Langalibalele’s trial was a spectacle of imperial authority, a predetermined outcome dressed up in legal procedure. The message was clear, defiance would not be debated, it would be punished.

If colonialism weaponised law, apartheid perfected it. The judiciary became a central pillar of a system that codified racial domination with bureaucratic precision. Laws such as the Suppression of Communism Act and pass laws were enforced with ruthless consistency, and the courts played their role with chilling efficiency.

Robert Sobukwe, a visionary of African liberation, was not merely imprisoned, he was subjected to legal innovations designed to neutralise him indefinitely. The infamous “Sobukwe Clause” allowed the state to detain him beyond his sentence, demonstrating how the judiciary could bend legal norms to serve political ends.

Steve Biko, the intellectual architect of Black Consciousness, was repeatedly harassed, banned and ultimately detained under laws that the courts upheld. His death in detention was not an aberration, it was the logical conclusion of a system where the judiciary legitimised state violence against those who challenged white supremacy and domination.

The judiciary presents itself as the guardian of constitutionalism, yet its application of the law is uneven. There is a discernible pattern in which those perceived as threats to the liberal order are treated with suspicion, hostility or outright dismissal. The law is applied with flexibility for some and rigidity for others.

Nelson Mandela’s trial at Rivonia stands as one of the most well-known examples of political prosecution. While the proceedings maintained a veneer of legality, the outcome was never in doubt. The judiciary functioned within a framework that criminalised liberation itself. Mandela was not punished for wrongdoing, he was punished for resisting injustice.

These historical examples expose a fundamental truth that the judiciary has never been consistently neutral. It has often acted as a political actor, cloaked in robes, advancing the interests of dominant power structures. Judges have interpreted and applied the law in ways that align with prevailing political ideologies, whether colonial, apartheid or contemporary liberal constitutional frameworks.

Today, the rhetoric has changed, but the underlying dynamics persist. The judiciary presents itself as the guardian of constitutionalism, yet its application of the law is uneven. There is a discernible pattern in which those perceived as threats to the liberal order are treated with suspicion, hostility or outright dismissal. The law is applied with flexibility for some and rigidity for others.

This inconsistency reflects an ideological orientation. Judges are not abstract beings. They are products of their training, their class positions and the dominant philosophies that shape legal thought. In South Africa, this philosophy remains overwhelmingly liberal, prioritising stability, property rights and institutional continuity over transformative justice.

When judges begin to act as guardians of a particular political order rather than impartial interpreters of the law, they cease to be arbiters of justice. They become politicians in robes. This is a dangerous development.

A partisan judiciary undermines public trust and erodes the legitimacy of the legal system. It creates a situation where the courts are seen not as spaces for justice, but as arenas where power is exercised under the guise of legality. This is not merely a theoretical concern — it has real consequences for those who seek redress against entrenched systems of inequality.

If the judiciary aligns itself with dominant political and economic interests, it risks reproducing the very injustices it claims to adjudicate. The law becomes a shield for the powerful and a sword against the marginalised.

The call for the transformation of the judiciary is often misunderstood or deliberately distorted. Transformation is not about replacing white judges with black judges while leaving the underlying philosophy intact. It is about paradigm.

A judiciary that looks different but thinks the same will produce the same outcomes. What is required is a fundamental shift in ethos, a reorientation of the legal imagination. Judges must move beyond narrow liberal frameworks and engage with the lived realities of a society shaped by centuries of dispossession and inequality.

Transformation demands a judiciary that is conscious of history, alive to power and committed to substantive justice rather than procedural formalism. It requires judges who understand that neutrality in a deeply unequal society often amounts to complicity.

The history of South Africa’s judiciary is a history of law used as an instrument of domination. From the persecution of Autshumao, Dinuzulu and Langalibalele to the imprisonment of Sobukwe, Biko and Mandela, the courts have repeatedly sided with power against resistance.

To ignore this history is to misunderstand the present.

The danger today is not that the judiciary will openly declare allegiance to oppression, but that it will subtly reproduce it under the language of legality and order. A judiciary that behaves in a partisan manner — whether in defence of colonial rule, apartheid or a narrow liberal orthodoxy — cannot deliver justice.

The question is not whether the judiciary should be independent. The question is: independent for whom, and for what purpose?

Until that question is answered honestly, the robe will remain what it has too often been — a costume of authority worn in service of power, rather than a symbol of justice.