Opinionista • Omphemetse S Sibanda • 7 February 2020
Tension exists in our legal system in a way that the framers of our Constitution never imagined. This open letter is not an unwarranted criticism, but rather a call to do what is right.
To members of the legal profession:
I owe gratitude to Paul Hoffman who recently wrote about the Hlophe Conundrum and vestiges of our justice system. His reminder that constitutional obligations need to be performed diligently and without delay is profound for a country whose judiciary, Chapter 9 institutions, the NPA and legal practitioners are the arteries for justice, law and order.
For the purpose of this letter, I will use the term “legal profession” broadly to include heads of Chapter 9 institutions, members of the NPA, magistrates, attorneys and advocates. It is unquestionable: lately, tension exists in our legal system in a way that the framers of our Constitution never imagined. They are real and pronounced. We are exposed to more negativity and negative perceptions linked to the legal profession.
Stories include delays in providing justice to people through long-outstanding judgments; judges behaving badly in public and breaking laws they should be the custodians of; allegations of incompetence; acting in bad faith, not fully understanding the constitutional duty to be impartial and perform assigned functions without fear, favour or prejudice; the diminishing credibility of the legal profession; corruption in the NPA joining hands with magistrates and legal practitioners (attorneys and advocates), and legal practitioners exploiting poor litigants through an array of measures, including contingency fee arrangements.
What should have come as a shocker was Judge Johann Kriegler’s criticism of how the Judge John Hlophe saga is being handled, slating Chief Justice Mogoeng Mogoeng for his alleged demurring during the complaint against JP Hlophe by justices of his own court and the JSC’s dereliction of duty, including the 2009 failure to expurgate JP Hlophe.
Interestingly, though, the Chief Justice has denied any reluctance to address the Hlophe issue, assuring the public that the members of the Constitutional Court have always adjudicated, and will always adjudicate, cases allocated to [the justices] fearlessly and with absolute impartiality. Chinua Achebe, the Nigerian novelist (poet, professor, and critic), in his 1958 masterpiece novel Things Fall Apart, (quoting WB Yeats) wrote that “things fall apart, the centre cannot hold, mere anarchy is loosed upon the world”. I cannot, for now, say that total anarchy has been loosed upon the legal profession, but I can observe that our legal profession is No Longer at Ease.
This open letter is not an unwarranted criticism, but rather a call to do what is right. Even if this was a criticism, surely the legal profession is not immune to constructive criticism. As expressed by Lord Atkin in Ambard v. Attorney-General for Trinidad and Tobago, Privy Council on appeal from the Court of Appeal of Trinidad and Tobago AC 322 at 335, “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even if outspoken, comments of ordinary men”. As an ordinary South African, sometimes I wonder if the law and justice institutions – including the legal profession – understand the significant role they play and the position they occupy in the legal system.
It is not only the JSC that must show true fidelity to the principles of accountability. Other members of the legal profession have the same responsibility, mutatis mutandis (with necessary qualification). Otherwise, the meltdown of our legal system will come sooner than expected.
In a speech addressing the National Judicial Orientation Programme in Wollongong, Australia, on 13 October 1996, Sir Gerard Brennan, Chief Justice of Australia, emphasised the obligations and accountability resting on the shoulders of the judges he was addressing. I find the thesis of Brennan’s speech apposite to all members of the professions working with the legal systems: including heads of Chapter 9 institutions such as the Public Protector, members of the NPA (in particular the Director of Public Prosecutions), magistrates, attorneys and advocates. He said:
“You are privileged to discharge the responsibilities of the office and you are obliged to leave it unsullied when the time comes to lay it down. What you say and what you do, in public and to some extent, in private, will affect the public appreciation of your office and the respect which it ought to command. The running of the risk of being arrested while driving home from a dinner party or a minor understatement of income in a tax return could have public significance. The standards of Caesar’s wife are the standards that others will rightly apply to what you say and do and, having a high conceit of your judicial office, they are the standards you will apply to yourself. These standards apply to matters great and small. In some respects, the management of petty cash or the acquittal of expenditure can be a matter of great moment.
“Hand in hand with a high conceit of the office is a humility about one’s capacity to live up to the standards set by one’s predecessors and expected of the present incumbent. There are few judges who are sufficiently self-confident not to entertain a doubt about their ability to achieve the expected level of performance – and, so far as I know, none of those possessed of that self-confidence has done so. Of course, with growing experience, the anxiety about one’s capacity to perform the duties of office abates. But this is not attributable so much to self-satisfaction as it is to a realistic acceptance of the limits of one’s capacity. Provided one does one’s best, anxiety about any shortfall in capacity can be counter-productive. Intellectual humility (even if it does not show), a sense of duty and self-esteem, the exposure of every step in the judicial process to public examination and peer group pressure are the factors which inspire a judge to the best achievement of which he or she is capable…
“You have joined or you are joining that elite – an elite of service, not of social grandeur – and your membership of it can be a source of great personal satisfaction and no little pride. You will not grow affluent on the remuneration that you will receive; you will work harder and longer than most of your non-judicial friends; your every judicial word and action and some other words and actions as well will be open to public criticism and the public esteem of the judiciary may be eroded by attacks that are both unjustified and unanswered. But if at the end of the day, you share with my colleagues whom you highly esteem a sense of service to the community by administering justice according to law, you will have a life of enormous satisfaction. Be of good and honourable heart, and all will be well.”
I rest my case. DM