JOHANNESBURG — With the Supreme Court of Appeal dismissing President Jacob Zuma’s and the NPA’s spy tapes appeal, it got Errol Horwitz thinking about the current state of our legal fraternity. Like many South Africans, Horwitz questions how Zuma has managed to delay the process for such a long time. Horwitz further questions other traditions, such as the wearing of the robe. It’s a brilliant piece and shines a spotlight on a profession in South Africa that often isn’t questioned much. – Gareth van Zyl
By Errol Horwitz*
The Supreme Court of Appeal (SCA) dismissed President Jacob Zuma and the NPA’s appeal to set aside reinstatement of criminal charges against the president. It was no surprise, and more so, as Zuma’s counsel, Kemp J. Kemp conceded during oral argument that the decision to withdraw more than 700 corruption charges against Zuma was irrational. The concession came after eight years and a staggering R30m of wasted taxpayer’s money to pay the costs of advocates and attorneys representing Zuma and the DA that sought to have charges reinstated against Zuma.
Zuma’s counsel’s eleventh-hour concession brought to mind Shakespeare’s famous line “Let’s kill all the lawyers” in Henry VI, Part 2, Act IV, Scene 2. Some have said Shakespeare meant it as a joke, while others have argued it was an indictment against incompetent or ethically challenged lawyers.
Nothing much has changed since Shakespeare’s time, except today’s litigants are not bent on killing their lawyers. Instead incompetent or ethically challenged lawyers are generally tarred with a bigger brush as used car salesmen.
Within the legal community, there is a group of lawyers, members of the Bar, pretentiously known as advocates, who regard themselves as superior to attorneys practising law in the trenches. Stereotypically they are regarded as pompous, elitist, arrogant and aloof. They consider themselves as the cream of the lawyer crop, sitting in their ivory chambers, waiting to be briefed by attorneys in matters affecting their clients. Bar members look solely to attorneys for payment of their fees, and if unpaid, are blacklisted. Their relationship is exclusive with the attorney who acts as the intermediary between the Bar member and the attorney’s client. They are relics of the past, not as old as Rudyard Kipling’s characterisation of the oldest profession in the world, but conceivably a very old anti-competitive profession.
— Barney Mthombothi (@mthombothi) October 13, 2017
As members of the Bar, advocates appearing in court don themselves in the trappings of an archaic pompous colonial era. Quoting from Bert Bester’s excellent article in Advocate “is it better to be a fake lawyer-aristocrat than a plebeian lawyer? Tracing back the history of such relics, it is clear they are the bastard union of an uncomfortable union between the fashions of a pre-16th century English elite and the funereal medieval European ecclesiastical dress”. Clearly, Bar member and attorney robes have outlived their perceived usefulness. To put it bluntly, the donning of robes no longer proclaims the man or the woman. More significantly as we are on the road to disembowelling colonialism, perhaps a shirt emblazoned with Ndebele designs could be worn by advocate and attorney alike. It would certainly level the playing field between them, unless their proclivity for verbal incontinence separates the wheat from the chaff, then all bets are off.
Few in South Africa’s legal community would argue against the wearing of robes in court in the name of tradition and solemnity. That may be so, but the robe is firmly linked to a historically evil political system that fed on cruelty and duplicity instead of a people-first justice system. Surely it is time to dispense with wearing of the robe and consigning it to the dress-up box.
Breaking: Pres JG Zuma is expected to launch an ambitious project to upgrade facilities in jails in SA #Zuma783
— Max du Preez (@MaxduPreez) October 13, 2017
Now, to return to Zuma’s capitulating counsel, and his eleventh-hour concession that the withdrawal of charges against his client was irrational. It was an affirmation that the appeal manifestly lacked merit. Why then did it take so long for the penny to drop, or for that matter to put two and two together? One presumes the rules of professional responsibility required Zuma’s legal team to perform a due diligence investigation of the factual and legal issues to determine whether leave to appeal to the SCA was appropriate, or manifestly futile. The High Court comprehensively addressed the mixed questions of law and fact, and rightly concluded that the dropping of charges against Zuma was irrational. That should have put an end to further litigation. Nonetheless, Zuma’s legal team petitioned the SCA for leave to appeal when there was every reason to know that an appeal was futile. As expected the SCA held Zuma and the NPA’s leave to appeal was baseless and unsupportable. The conduct of Zuma’s legal team and the NPA raises questions of engaging in frivolous litigation in generating an appeal that lacked legal merit with no chance of being won.
It goes without saying courts must remain open to all who seek in good faith to invoke the protection of the law. However, courts are not obliged to suffer in silence the filing of baseless, insupportable appeals presenting no colourable claims of error designed only to delay and obstruct the course of justice. As it is, there exists an epidemic of baseless appeals emanating from ANC government officials who clog the courts and incapacitate the administration of justice. Surely it is time for the courts to step up to the plate and impose punitive sanctions on litigants and counsel alike who file frivolous claims. It should facilitate draining one of South Africa’s swamps, or at least bring about much-needed reform.
- Errol Horwitz was a political activist in the 60’s, and returned to South Africa a few years ago, after residing abroad for more than three decades.