/ 30 September 2022

‘The law is for protection of the people’ – but do lawyers know it?

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The president’s decision comes five months after the Judicial Service Commission recommended the step

‘The law is for protection of the people”, country singer Kris Kristofferson sang, sarcastically, years ago. From any philosophical or ideological angle, the law is centrally important in a society. It has been said over the past few years that the courts have rescued South Africa from the total disaster that politics and greed could have brought upon us. The task is not getting easier. In this struggle, respect for the legal system is crucial.

Our constitutional democracy has seen dignified and revered judges — too many to mention. But then there is Judge President John Hlophe. He was found guilty of gross misconduct by the Judicial Service Commission (JSC) for attempting to influence constitutional court judges in favour of former president Jacob Zuma and has launched more unsuccessful court cases than many frivolous and vexatious litigants together. 

Currently, the JSC is having to deal with another unholy hot mess, involving several judges of the Western Cape high court, including Hlophe’s wife, Judge Gayaat Salie-Hlophe. Hlophe accuses his deputy, Judge Patricia Goliath, of racism, saying she called him an ugly old man and that she meddled in his domestic affairs. She alleges that he called her “a piece of shit” and “rubbish”. Whether this amounts to gross misconduct, I do not know. But, can litigants be expected to respect the fairness and emotional stability of the courts deciding on their lives?

Numerous South African advocates and attorneys surely rank with the very best in the world. They are not the ones dominating the headlines, though. After repeated court circuses, advocate Malesela Teffo was recently disbarred. His conduct may have resulted more from psychological issues than from sinister political or other motives but, nevertheless, created a sad spectacle. 

Enough has been said about the endless delaying tactics, and sometimes bizarre long arguments, of Dali Mpofu SC. In these pages, I earlier referred to his onslaught on law and logic, which caused embarrassment  among judges in our neighbouring states. 

Yet, at former chief justice Arthur Chaskalson’s funeral in 2012, I observed — with considerable concern — how the eyes of my young, promising, enthusiastic Zulu-speaking law clerk sparkled when he drew our attention to Mpofu’s expensive shiny new sports car. Talking about role models …

This is not necessarily the fault of lawyers like Mpofu. In 1984, Professor Debra Pogrund Stark wrote in the Harvard Law Review that lawyers may simply be victims of the role that society had created for them. Confusing the court is often the best they can do for their clients. They recognise their role as deceivers. Thus, they use language as an instrument of deception and abandon the honesty of words.

So, what do we expect from them? During a prison inspection, I met an attorney serving a long sentence. With some pleasure, he informed me that he had been a student of mine. His explanation of his erroneous path was that he had often “won” his cases. Thus, clients expect you to keep winning. You make money while helping them to escape from their financial and other troubles. Under pressure, you take shortcuts, disregard the truth and falsify figures in court documents … until you are unlucky enough to get caught.

The victim of lawyers’ insatiable thirst for success, measured by conspicuous consumption, can also be the very client whose interests they are supposed to protect. Divorce lawyers promise their emotional and vulnerable clients the victory they so desire to get back at and humiliate their spouses. 

Over sometimes years, the client pays for letters of demand, threats, interim maintenance applications and urgent interdicts. When there is little money left for the children, the client is advised to settle, often on the doorstep of the courtroom. 

Also in matters such as contractual and delictual claims, popular assurances are glibly given: “You have a case … we’ll see them in court!”  Then, the matter is suddenly settled, sometimes during teatime of the first morning in court, after the plaintiff’s evidence has been destroyed in cross-examination. The euphemism “settlement” often means that you lose and pay all costs, after which you have to mortgage, or even sell, your house.

Of course, very many law practitioners do not operate this way. But change is necessary.

Legal education has to be transformed. Universities have formulated guidelines. The debate about the LLB curriculum can be complex and tense. Because of European settlement and colonial conquest, we inherited Roman-Dutch and English law. African customary law, which had existed for centuries, was recorded by white researchers. Apartheid significantly contaminated the above. The Constitution became the supreme law. 

But the worldwide debate about decolonisation cannot be ignored. Legal certainty and the need to preserve rules like that of contracts must be honoured, inter alia to enable financial institutions to lend much-needed money to buy houses, and must be balanced with the realisation of power imbalances and poverty in our society.

Law students must be made aware of our history and appreciate the role of law in society. They must learn to think critically about the sources, morality and application of the law. We do not need long arguments about whether philosophy or legal skills are the most important. Basic skills, such as writing and reading and understanding court judgments, are crucial. A philosophical basis is indispensable, though. An understanding of the purpose and role of law makes the skilful, practical application of principles and rules so much easier.

Students must understand that the Constitution is the supreme law. Without a sound knowledge of its provisions and values, their client could lose a home and more. But, on an academic level, lawyers must be able to think critically about the Constitution. After all, theologians often question the existence of God.

A sound education in core subjects, for example, constitutional law, contract, delict and criminal law is essential. Beyond these, I would argue for as wide a variety as possible of elective subjects to accommodate different interests, talents and personality types.

Ethics must be emphasised. Was my former student, the above-mentioned imprisoned attorney, perhaps taught too much about the skillful drafting of documents and too little about honesty and justice? 

Law graduates must realise that they are members of a very small, privileged and empowered group in our society. They can choose whether to use their knowledge and skills to manipulate and exploit their fellow human beings, or to help and empower them. Humaneness is required. Call it ubuntu, if you wish.

Sometimes law faculties rely heavily on what “the profession” demands of them. But the legal profession itself needs transformation, knows it and is engaged in it. Whether real progress is made, I do not know. Codes and charters have been drafted for attorneys. Advocates for Transformation has done valuable work. 

However, in a remarkably honest 2022 sub-committee report, drafted by Tembeka Ngcukaitobi SC and others, it is stated that Advocates for Transformation “urgently needs to professionalise its processes, which are outmoded, weak, often erratic and chaotic, thus enabling individuals to exploit in pursuit of their own individual goals”. Clearly, transformers must also be transformed.

Far be it for me to prescribe on what practical courses candidate attorneys and advocates must focus. This is where skills like the drafting of title deeds and pleadings and appropriate court behaviour must be taught. 

Again, a strong ethical component and social awareness are required. As officers of the court, lawyers have a duty to the client, the court and society. Everyone has a right to legal representation, but every client also has a right to solid and honest legal advice, even when it is unwelcome. Courts cannot function without competent lawyers with integrity. Society would be better off in anarchy, than with prowling hyenas and scavenging vultures as its lawyers.

And the lawyer’s own interest? There is nothing wrong with earning enough to provide properly for one’s dependents. It is indeed a duty. Lawyerly success does not have to be measured by the size of one’s collection of Ferraris or game farms, though.

These ideals may not be popular in a capitalist conspicuous-consumption-driven society. But lawyers are supposed to have a conscience, even if contrary to popular belief.

The transformation will have to continue. Change is not only part of life — it is life. Without change, there would be no butterflies. The ancient Greek philosopher Heraclitus mentioned that one never steps into the same flowing river more than once.

Johann van der Westhuizen, who assisted in drafting South Africa’s Constitution, is a retired justice of the constitutional court.


The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.