/ 19 September 2017

A lazy legal system can’t win against a regime that protects agents of corruption

Former finance minister Pravin Gordhan.
In May, Gordhan announced the appointment of several additional directors to the Transnet board. (Oupa Nkosi/M&G)

This commentator has complained for some time about the lethargy of those public institutions that are enjoined to enforce the law. In particular, the Hawks, the South African Police Service and the National Prosecuting Authority have been very slow to respond to the tsunami of allegations of corruption, money laundering, racketeering and tax evasion against a well known group of sometime Saxonwold residents and public office bearers.

The bitter irony of “say little and do less” as an apparent default action at these institutions is that it has taken a British private regulator and the international arm of an accounting firm to initiate decisive responses to the Gupta state-capture saga.

Public relations firm Bell Pottinger and accounting and auditing company KPMG are the only ones who have been held accountable for their part in the assault on our constitutional democracy and its promise of a better life for millions of South Africans in desperate need of the fulfillment of that promise.

Bell Pottinger (from the colonial metropole, no less), which fashioned the campaign about “white monopoly capitalism”, may well be heading for the financial wall. KPMG, which so assiduously audited Gupta companies and aided Tom Moyane in his battle against the then finance minister, Pravin Gordhan, with its wildly unsubstantiated report about the so-called rogue unit at the South African Revenue Service, have at least conceded fault, though it is clear that the firm may yet face legal challenges.

By contrast, no prosecution has been launched against the Gupta family, erstwhile executives of parastatals such as Eskom or the Passenger Rail Authority of South Africa, or any politician. The ever-increasing weight of evidence in the public domain seems to make not a jot of difference.

At the same time, some questions must be asked about our legal system. Take the latest episode in the long-running saga of the 783 criminal charges against President Jacob Zuma. When a full bench of the Gauteng high court reinstated the charges, the predicable appeal to the Supreme Court of Appeal (SCA) was lodged, doubtless with the further intention that, if it failed, another appeal could be lodged with the Constitutional Court.

Admittedly, the SCA did not grant leave, but informed the parties that it would hold a hearing to decide whether to grant leave, which, if it did, would then ensure that a merits hearing would be conducted at the same time. Counsel for the president then conceded that the appeal had no legal merit. Significantly, counsel made this concession only at the hearing, following months of delay.

Leave aside the question of when the president’s legal team finally worked out that the Gauteng judgment was unassailable. The fact that the concession was made raised the question as to why the SCA did not refuse to conduct any hearing on a matter that now appears to be beyond any legal dispute. The practice of allowing incessant appeals must surely be reassessed if cases of this important nature are ever to reach finality.

It is within this context that the latest strategy from Zuma’s legal team must be examined. The appeal against the Gauteng judgment cannot succeed. So the idea, it seems, is to concede and then make representations to the present national director of prosecutions, Shaun Abrahams, as to why the charges should be dropped.

Even if Abrahams rejects the representations, Zuma can start the legal process all over again with a review and, if necessary, two more appeals to the SCA and the Constitutional Court. If the new representations are made, Abrahams should act speedily, and if a review is launched the high court should hear it as a matter of urgency. Unless an appeal has legal merit, it should be swiftly dismissed by all courts. Delay for its own sake should have no place in our legal system.

A further challenge to the legal profession concerns the “taxi cab rule”. Though any litigant, however unpopular his or her cause, is entitled to the best possible legal representation in a criminal case, the issue of whether an advocate is equally obliged to take a brief in a civil case, if he or she is available, is arguably a different matter.

During apartheid, the issue was whether this rule applied to a brief from the security police in a case concerning detention without trial. The argument against taking such a brief was that the advocate concerned would be complicit in undermining the very rule of law upon which the legal profession is supposed to be based. Does the same apply to arguing a case that is designed to undermine institutions seeking to root out corruption — which, in turn, destroys the fabric of constitutional democracy?

There is also the issue of whether such litigation may be funded by the proceeds of criminal activity.

It may be opportune for the legal profession to begin a debate that has begun in the accounting profession.