Lost cause: ANC supporters and Ses’Khona People’s Rights Movement members protest outside the Cape high court
What duties do counsel owe to the legal system beyond the narrow interests of their clients?
This question is prompted by two recent cases – the so-called spy tape case and the Democratic Alliance’s application to set aside the appointment of Hlaudi Motsoeneng as the chief operating officer of the SABC.
The standard answer given by the Bar is that its members abide by the taxi-cab rule: if available to take on a brief, an advocate is obliged to take it, no matter what his or her personal views are regarding the consequences of a successful outcome or the popularity of argument put up in favour of the client. Were it different, many litigants would be denied the right to legal representation.
For this reason, counsel make submissions on behalf of their clients and leave it to the judiciary to make the decisive call. This model ensures that counsel are not to be presumed to associate with the cause or personality of their client. Without this rule, the core idea of legal representation for all would be compromised.
During the apartheid era, there was a debate about whether the principle applied to arguments on behalf of the regime, which, when upheld, contributed to the very destruction of the legal system independent counsel were obligated to uphold as officers of the court.
Regrettably, the Truth and Reconciliation Commission never dealt satisfactorily with this issue. Had it done so, the profession today may have been better placed to understand more fully the contours of the taxi-cab rule in a deeply divided society.
Both the spy tapes and SABC cases raise the question again, albeit in a very different context. It cannot surely be argued that either President Jacob Zuma, the national director of public prosecutions (NDPP) or Motsoeneng should not be entitled to the best available legal representation.
But are counsel permitted, ethically, to raise any and all arguments on behalf of their clients, even when a first-year law student would know there is absolutely no merit in the case?
Again, it must be accepted that, in the final analysis, it is for the court to decide the issue and it is not for counsel to second-guess the result by refusing to present argument, however debatable its merits. Indeed, it was the willingness of Mokotedi Mpshe, then the NDPP, to decide that the conduct of National Prosecuting Authority (NPA) prosecutor Leonard McCarthy was fatal to the prosecution of Zuma, rather than leaving it to the court’s judgment, that proved a fatal flaw in his decision.
But does this mean that counsel may pursue appeals of judgments where there is no legal prospect of success? The inference may be drawn that this is merely an attempt to delay the inevitable.
In the appeal against the order of the Pretoria high court that Mpshe had acted irrationally and thus illegally in dropping charges against Zuma, counsel for the president and the NPA raised many arguments in support of the submission that another court could reasonably arrive at a different conclusion.
In response, the court, in dismissing the application for leave to appeal, could scarcely disguise its irritation at many of these arguments. The following passage from the judgment is illustrative:
“In our view, the issues of law concerning the grounds of review and the separation of powers doctrine have been considered and settled by the SCA [Supreme Court of Appeal] in their judgments, which are referred to in the main judgment. There is thus no legal issue arising out of the main judgment which requires consideration by the SCA.
“The applicants further criticised the main judgment by submitting that the court did not consider the affidavit of Mr McCarthy to the high court that the prosecution process was of the highest integrity whilst he, Mr McCarthy, had been engaged in an illegal investigation in the conduct of Mr Zuma at the time.
“The submission disregards the fact that, when advocate Mpshe made the decision to discontinue the prosecution, [he] did not mention it. The submission was made when the main application was argued and we did consider it.”
These passages can be decoded into lay language to mean: not only is the law settled so that there cannot be another legal possibility but counsel also did not accurately represent the reasoning employed by the court in its main judgement. Strong criticism indeed.
The appeal by the minister of communications, funded by taxpayers’ money, against the decision to set aside her appointment of Motsoeneng was dealt with in similar fashion in the Cape Town high court.
The public protector had recommended that a comprehensive inquiry be undertaken regarding Motsoeneng’s qualifications and conduct while he was the acting chief operating officer of the SABC. But before any action was taken to abide by these recommendations, the minister appointed Motsoeneng permanently to the post.
Accepting that she may have taken legal advice at the time (before the decision of the Constitutional Court in the Nkandla case regarding the status of the public protector’s report), how is it now legally possible to pursue an appeal when the Constitutional Court has decided that a person in the position of the minister must abide the public protector’s report or take it on review?
Strictly construed, the taxi-cab rule does not prohibit counsel from providing this form of legal representation, but it surely should promote a considered discussion of the responsibility of counsel to the integrity of the legal system, in which they are important role players.