The Silence of the Lawyers
Jeremy Gauntlett questions the dangerous complacency of the legal profession
01 February 2011
Jeremy Gauntlett, Politicsweb
Speech by Adv Jeremy Gauntlett, SC, to the Conference of the Society of Law Teachers, Stellenbosch, January 17 2011
Thank you for the honour this invitation constitutes. It stirred many feelings in me. The first was doubt as to how your Society took that decision. I say this because I know the way my own profession takes decisions. This is best exemplified by the decision of the Johannesburg Bar Council some 40 years ago.
A well-regarded but cantankerous judge was hospitalised. A delegation was despatched by the Bar Council to his hospital bedside. The leader cleared his throat and told the judge that the Johannesburg Bar Council had mandated him to convey two messages. The first was that he was asked to wish the judge on behalf of the Johannesburg Bar a speedy recovery. The second was to tell the judge that this was on a vote of six to five.
My second feeling was one of nostalgia: nostalgia for those who taught me here, and who either as teachers or as fellow students became my friends for life; and those who taught me, or with whom I worked, in my own postgraduate life. Allow me to mention JC de Wet, Willem Joubert and Tony Honoré - now in his 62nd year of teaching at Oxford.
I and many of my colleagues in practice owe an inexpressible debt to you and to your predecessors. It concerns me that often law teachers seem to doubt the worth of what they do. Their task is ancient and vital. As CP Snow writes of Cambridge in his elegaic novel about university ambition, The Masters, it "[i]s hard not to think of other men walking as we did, of the chain of lives going back so long a time, of others walking those same narrow streets in the rain".
That is not to say that law teachers at times lack brutality. I remember Sir Rupert Cross, great writer and teacher on the law of evidence, handing back collections (essays) at Oxford and saying: "I know you can't help your laziness, but you should really try to do something about your stupidity".
When you invite a practitioner to speak, you should know that his own scholarship will not have been sustained by the bits of writing and lecturing which only earlier years at the Bar readily allowed. So I do not venture a scholarly theme.
On the other hand, if you expect me to speak about things that matter to the profession, I shall do so, but only in part. For what I want to talk about today is a common malaise: a lack of critical faculty not merely in the Faculty, but across the face of legal life in South Africa. My thesis is that, for all lawyers, there are disturbing developments about which we are insufficiently articulate and active.
I have often thought that the trouble with political revolution, velvet or otherwise, is that it gives rise to the same illusions as university graduation. There is the sense of attainment and finality, of a status achieved and no more to be learnt or done. I believe the converse is true. It is just a beginning. That is true of the commencement of constitutionalism in 1994.
Let me illustrate my point with scattered examples from three different areas of our shared complacency. The first concerns adjudication. The second concerns legal practice. And the third concerns you, law teachers, what you do in legal education and what we, the legal profession, do or should ourselves do in legal education.
Time does not permit today to speak in detail of the many challenges with which I believe courts in Southern Africa are confronted. I would however like to say two things in this respect. The first is that it is time to end an approach which is insufficiently rigorous in its scrutiny of the judgments of courts, and how they function.
I do not mean by this that there should be anything less than professional respect for judges, and least of all that there should be the kind of attacks on courts, chiefly by political figures, which from time to time have been manifested.
But other than the writing of David Dyzenhaus, Stu Woolman and Jonathan Lewis, in the tradition of John Dugard, Tony Mathews and Barend van Niekerk, and later Fink Haysom, Clive Plasket and Etienne Mureinik, what probing critique has there been in the last five years of the work of the Constitutional Court?
Those of you who are public lawyers may not agree with it all. You may or may not agree with Jonathan Lewis when he describes the output of the Constitution Court in recent years as "evidenced by an atavistic sentimentality", "outcome-based" and "mock-Solomonic".[1] But then we would all benefit if you said so.
Do you have nothing to say when the Constitutional Court, in the New Clicks case,[2] produced 446 pages of judgments (deciding the matter, like the Johannesburg Bar Council, "by six to five").
Why have you not criticised the refusal by Justice Sachs in the Sidumo case[3] to join Justice Ngcobo and others in determining whether the right in issue was a labour right or an administrative justice right, he urging a "move away from unduly rigid compartmentalisation so as to allow judicial reasoning to embrace fluid concepts of hybridity and permeability"? Do you share my inability to understand language like that, and the concern that it is inexact because the reasoning is not rigorous?
This is not a matter of words, although as lawyers we know that there can scarcely be expressed thought without them. As Lord Hoffmann has written,[4] our legal lives are, as TS Eliot suggested, essentially an "intolerable wrestle with words and meanings".
No, what we are concerned with is the lack of legal clarity. And as Lord Bingham has recently written in his wonderful book on the rule of law,[5] which I commend to all of you, one of the first requisites for the rule of law is clarity in the law.
The consequence, we have seen too often in recent years, has been decisions in which one battles to find a ratio, when there is a self-indulgent multiplicity of voices, and when, as Nugent JA stated in Makambi v Member of Executive Council,[6] various Constitutional Court decisions on the same issue require the courts to go "in diametrically opposed directions".
Beyond this, there are other institutional issues relating to the courts. One is the gross disparity in funding. The Constitutional Court draws on R8 million in funding for its library. The Supreme Court of Appeal, having to cover all fields in the law, submitted a budget for R1,2 million this year. It has received just R100 000. That includes acquisitions for the chambers of the 22 judges. Obviously no text books can be bought, or subscriptions to law journals sustained.
The Johannesburg High Court is in a similar crisis. Yet in recent months we found R71 million to subvent a gathering of world youth on the not-new topic of imperialism. It was Heine who said (with deadly prescience) that the nation that begins by burning books ends by burning people. Perhaps we can say that the nation that begins by disparaging legal scholarship risks renouncing law itself.
Another continuing concern is how we choose our judges. It is probably unnecessary for me in this regard to disclose the interest I have: that in the past my own nominations both to the Constitutional Court and to the High Court have, to the undisguised relief of my creditors, been rejected. I do not speak with rancour on the matter, but equally I cannot avoid speaking. There are matters we need to consider.
I would hope that all of us are committed to the fundamental transformation of our legal system. By that I mean the betterment of the system, in all its attributes, so that it is both closely congruent with and an effective vehicle for the new constitutional dispensation introduced in 1993.
I stress "betterment", because as Justice Michael Kirby of the High Court of Australia has reminded us, transformation does not just mean change, it means change for the better. Other than the Bar, who contributes to researching candidacies for the Bench? Should your Society not have a review committee to do just that, to offer an objective assessment of their academic worth, judgments or other legal writing, and to offer informed criticism of candidates to the JSC?
Countries differ widely, and I accept readily that we have imperatives of our own. I am not a believer that addressing the makeup of the Bench could await the slow evolution of passing years. But that does not prevent us from asking questions regarding the contrast for example between the House of Lords where the 12 Lords of Appeal in Ordinary on the last figures I saw[7] had on average 14 years of judicial experience before being appointed to that court; in Canada, 12 years; while in South Africa, fully six of the 11 members of the Constitutional Court had no judicial experience before joining the court with the remaining five averaging four years judicial experience each.
Can it be said that certain of last year's appointments reflect a continuing disregard for discernible judicial excellence?
Another concern is the output of our top court. In 2008, the Constitutional Court heard 22 cases. The Supreme Court of Canada heard 82, the House of Lords 102 appeals in 2005 and 94 in 2006. In each of 2006 and 2007 one member of the Constitutional Court wrote only two judgments, another produced only three in each of 2005, 2006 and 2007.[8]
The reason why these questions are important is that, as you know, it seems set that the Constitutional Court is to become the apex court in South Africa, for all matters. I have never understood how 11 judges, sitting en banc, could perform this task physically. Eleven may be the optimal number for Man United, but it is not for a court. And if they cease to sit en banc, one faces the prospect of inconsistent precedents, already a serious concern in the Supreme Court of Appeal in recent years as its numbers has grown. Nor do I understand the rationale.
A very deliberate policy choice was made in 1993 not to have complete integration of the courts, placing the Constitutional Court at the top but exclusively concerned with constitutional law. Some of us at the time believed, and wrote, that this was a wrong turn, and that we should have followed the examples of Botswana, Canada, India, Lesotho, Namibia, Swaziland and Zimbabwe, to quote just a few ready examples.
We needed, we said (and the late Chief Justice Corbett was one), to recognise the fact that the law is indivisible. But the turn was taken in the road, and consequences follow. These include the selection of judges over the past 17 years on the basis that they would only adjudicate constitutional matters, and therefore their lack of involvement in prior professional life in wide areas of private law until now mattered less than it otherwise might. Now all must change for the highest court - except those selected on the contrary premise.
The full debate in this regard is a considerable one, and we cannot have it today. But I use it to illustrate an area of deafening silence, where one sees and hears very little, in the legal profession, in the ranks of the judiciary (although obvious constraints apply there) and above all, amongst those of you who write and teach in the field.
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There is a yet worse silence regarding adjudication. This is far more concrete than the institutional issues I have just raised regarding South African courts. It concerns the suspension of a vital institution created in international law by solemn treaty obligation between the members of the South African Development Community (SADC).
The Treaty itself contemplates the creation of a regional Tribunal, its role being to adjudicate disputes rooted in international law arising in the region. The Treaty itself makes important provision for international human rights and the rule of law. It was to be expected that at some stage a dispute would arise, and so it did.
Let me give you three examples of the kind of work the Tribunal has done in the short period of three years that it has effectively been functioning.
The first concerns a man called Luke Tembani, the first black Zimbabwean (if one must use the description) ever to obtain freehold title to agricultural land in that country. He did that in 1980. He built up a considerable and successful farming enterprise, employing many, and with enough of a sense of community as to build a school on his farm providing education for over 300 children in the district. He borrowed some money from Zimbabwe's Land Bank.
He was troubled, but not unduly so, when the onset of hyperinflation from 2000 saw monthly statements in which the interest on his debt achieved absurd proportions. Shortly the interest exceeded the (considerable) market capital value of his thriving farm. He tried to negotiate, but the Land Bank's calculator was inexorable. (Behind the calculator, it seems, there was a roving eye which had fallen on his farm.)
What was invoked against him was a statutory provision very similar to the one which was struck down in this country in the Chief Lesapo case[9] in the Constitutional Court. The offensive provision was that an entity like the Land Bank would be permitted to adjudicate in its back rooms an amount said to be owing, and have this certified as a judgment debt.
Under such measures, the courts are completely bypassed. Invoking the right to access to courts protected under the SADC Treaty, and quoting the very useful Constitutional Court decision in Chief Lesapo, we succeeded in obtaining an order from the Tribunal that that provision was inconsistent with Zimbabwe's treaty obligations.
A second case concerned a Zimbabwean human rights NGO, which painstakingly assembled over 40 litigants who had succeeded in obtaining final judgments for damages from Zimbabwean courts, but whose judgments were simply ignored by the Government of Zimbabwe. The claims arose from assaults and even torture by members of the security forces of Zimbabwe.
The government sought to justify its failure to honour the judgments by invoking before the Tribunal the contention that it lacked the means. The Tribunal would have no truck with this. It granted an order holding the Government of Zimbabwe in this respect too to be in breach of its obligations under the Treaty to provide access to justice for its citizens. The Tribunal has ordered the Government not only to honour its own judgments; it has set in place a mechanism to have the awards revalorised so as to address the delay and the ravages of inflation.
It is the third instance you would have heard most about. It concerned first one, then ultimately 78, commercial farmers. They were Zimbabwean citizens, nearly all having obtained their farms on the open market after independence in 1980, many of them doing so on "certificates of no interest" by the Zimbabwean government. But in 2005 Amendment 17 to the Constitution of Zimbabwe was adopted.
It effected a radical change to the property clause in the Bill of Rights, authorising the government of Zimbabwe by ministerial decree to gazette such land as it wished to pass by that simple act from the private owner to the State for further distribution as it wished. It contained an ouster clause: any challenge to the provision, or any act of execution under it, was ousted from adjudication by any court.
The case takes its name from the lead farmer, Michael Campbell.[10] Halfway through the rather drawn out proceedings, he and his wife - both in their late 70s - and his son-in-law were abducted from their farm. They were beaten to such an extent that the son-in-law nearly lost his eye while Michael Campbell himself sustained head injuries from which he has not fully recovered.
Into the mouth of his wife was placed a burning ember and she was required to sign a waiver of the claim then proceeding before the Tribunal. Whether she did so is uncertain, because at some stage of her beatings she lapsed into unconsciousness.
Their reaction was to proceed with the case. We appeared again before the Tribunal, they in wheelchairs and with their heads bandaged, and reached the merit stage of the argument. The government of Zimbabwe's legal team, which had procured a number of postponements, tried for one more.
The next senior judge, Dr Alberto Luis Mondlane - scion of a famous Mozambican revolutionary family - said, very quietly, in response: "We are trying to build a house of justice in this region". The Tribunal (presided over by the Chief Justice of Mauritius) directed that the case continue. The Zimbabwean High Commissioner in Windhoek ordered the legal team to withdraw. We sat in silence as they did, and completed the argument.
A month or two later the Tribunal delivered an award which I would invite you to read on the SADC Tribunal's website.[11] It sustained the attack on the land seizure measures on all three bases argued. It held that the measures were arbitrary and affronted the rule of law, in the purported ouster of access to the courts.
It held secondly that the measures were arbitrary in providing for a mere seizure, with no justiciable measure of compensation at all. And thirdly, it held that the measures constituted discrimination in conflict with the requirements of the Treaty. This was because, although the race of those affected was never mentioned, the seizure was only from people who happened to be white (and not because they were absentee or bad farmers, or because their land holdings were by some measure or the other excessive), and concomitantly that the measures benefitted only a class of political chefs, as they are known in Central Africa: the well-connected, the Wabenzi as East Africans express it in Swahili. And so it happened that a courtroom with predominantly White farmers who had told me that they had learnt not to expect justice in Africa, found it at the dispassionate and adept hands of a team of senior black judges.[12]
The government of Zimbabwe at first ignored the Tribunal's award. Then successively the Minister of Justice and President attacked it. They were followed, unusually, by the Deputy Chief Justice of Zimbabwe, who took the occasion of the official opening of the courts in 2009 to deny the jurisdiction of the Tribunal. I should note that every member of Zimbabwe's Supreme Court, bar one, has accepted at least one confiscated farm from the Government - and continues to sit in land cases.
Now the Protocol on the Tribunal provides for the registration of its awards by domestic courts, so as to make them executable under local law. We proceeded with such an application. The allocated High Court judge happened to be a former Attorney-General and thus (in Zimbabwe) member of Cabinet. He disallowed the application for our ad hoc recognition as counsel for the purposes of the case - although such applications in my instance had been granted a dozen times before.
Suspecting that this might happen, we had able Zimbabwean counsel ready and briefed, who thereupon delivered the argument which had been prepared. Interestingly, Patel J rejected the contention by the Zimbabwean government that no jurisdiction of the Tribunal over it existed. But less surprisingly he dismissed the application for registration.
He contrived to do so on the grounds that to do so would be "contrary to public policy" - because it would contradict what the domestic law and courts had authorised.[13] That, of course, is Kafkaesque: the whole point of going to the international Tribunal was that the laws and court orders of the country had authorised that which was in conflict with Zimbabwe's international law obligation.
We pressed on. To the consternation of the Government of Zimbabwe we applied for registration in Pretoria. Again, the Government resorted to withdrawal. But we said that was too late, because it had entered opposition and by that act, consented to jurisdiction.
In any event, we showed that jurisdiction existed to obtain such an order against a member State of SADC in South Africa. We proceeded to attach Zimbabwean government property in South Africa. Regrettably, the one executable asset for which we had hoped, an aircraft registered in the name of the Government of Zimbabwe and pressed into service for the indispensable objective of a state visit to the Jimmy Choo shop in Sandton, has not yet eventuated.
What has now happened is that the government of Zimbabwe has resorted, not unexpectedly, to extra-legal means. It did so on 17 August 2010 by enlisting the support of other SADC members for an effective suspension of the Tribunal while various spurious questions concerning its jurisdiction and the extent of its powers are being investigated. The terms of office of the first appointed judges are being allowed to expire. In more ways than one, the lights have been turned off.
Of all this there has been far too little scrutiny, let alone the protest to which I believe proper scrutiny should give rise. It is patently, I believe, in violation of the Treaty and Protocol.
I turn from issues concerning the courts and what I have suggested has been a shared silence, to one in respect of which far more might be expected from the organised legal profession. You will find on the Law Society's website the text of a Legal Practice Bill presented to Cabinet on the morning of 5 May 2010, approved by it and announced by the Minister of Justice as being tabled in Parliament that afternoon.
It provides for the disestablishment of all law societies and bars, and the compulsory vesting of their assets in and transfer of their staff to a statutory national council. Its members will be appointed in the discretion of the Minister. I invite you to read the Bill, and to watch the course of events in the next few months.
Consider that there is no constitutional democracy without independent courts, and independent courts cannot be staffed and cannot themselves function unless there is an independent legal profession. I have spoken and written about this elsewhere; if it interests you, you will find it on the Siberink website.[14] It is an area which does not only concern the practitioners, or the judges, but those of you who see part of your own freedom in teaching law derived from the free and independent legal system in which you need to function.
A last area of silence is the one which binds us all together. It is the proper relationship, and respective responsibilities, as between the judiciary, the organised profession and you, the teachers of law. It is of course legal education. We cannot look to the law teachers, practitioners and judges of the future unless their education prepares them for it. And in this regard, I have to cross swords with the director of legal education in the Law Society of South Africa, Nick Swart, for whom I have great respect.
Writing in the Mail & Guardian of 23 December 2010 to 6 January 2011, he commented on the research findings on the LLB curriculum by the Council on Higher Education. Quite rightly he conveyed the concern "that a substantial number of our law graduates lack essential skills such as research, computer work, literacy and numeracy". He says further that these graduates "place a great burden on the attorneys' profession, which must provide training in these skills, which takes up the time and funding that could have been used to strengthen the legal transactional skills required in the attorneys' profession".
He raises the need for a core curriculum, comments on the disparity between faculties, and asserts that, while the attorneys' profession "respects the fact that law faculties are training their students for other vocations too", since attorneys are the largest group of lawyers dealing with the public "the requirements of the attorneys' profession must be high on the lists of their priorities". The point of his piece is ultimately that "the profession cannot devote more time to basic and remedial training to law graduates. They need to be trained also in legal practice skills. We will continue to engage law faculties and CHE on this issue.
I speak of course as a person with very limited experience in teaching law, and most of that about 30 years ago. But I have followed legal education with close interest. I served with Nick and others on liaison bodies, including one for the creation of a judicial education institute - 17 years after our democratic transition still not in existence. I do think that he is right in many of his judgments. But I do believe, strongly, that the predicament of those who train young legal practitioners as regards their educational deficiencies is not to be addressed by expecting universities to remedy basic educational deficiencies.
The deficiencies to which Nick Swart refers, which haunt and cripple young practitioners, are the responsibility not of tertiary institutions but of basic education in this country. The function of universities is the induction of the intellectually qualified in the rigors of rational discourse. It is not to remedy the deficiencies of primary and then secondary education. It also is the duty of the organised legal profession, not universities, to teach professional skills and the adjectival law relevant to these.
I thus do not believe, as Nick propounds, either that universities should teach professional ethics and related subjects, or that their function is to be remedial educationalists.
I sense that the reality is that given two shadows - the long shadow of discriminatory education, and that of the failure since 1994 to have succeeded in remedying it - all of us to a degree must deal with reality and the less than perfect. That this will entail some degree of doing what we would not ideally wish to do, is inherent. But we need to be clear what in principle our respective responsibilities are.
As one who is not a teacher of law, but who cares deeply that teachers of law should be free to teach law, I would ask you not to fall victim to mere pressure and political correctness in your curriculum-setting. I believe you unfortunately did so once before, when you agreed to the introduction of the four-year LLB. I know of no law firm, other legal employer or Bar in the country which considers that to have been a wise step.
Social pressures and good faith gave rise to the decision, but in my view it should not now be repeated. Your calling is clear: more than intubating students with a stock of knowledge, you teach principled and reasoned thinking, and a sense that the intellect and human spirit each only flourish in conditions of freedom. And you teach, or need to teach, discourse: that we all need, in our writing and our speaking to convey things simply, but not more simply than they are.
It was a very great Afrikaans poet who, to the fury of Dr Verwoerd wrote the play, Die Pluimsaad Waai Ver, which premiered more than forty years ago in the theatre where I address you now. He said that dissent is just as essential in a nation as adherence; that it is not dangerous that dissent fails; what is dangerous, he said, is that a whole generation passes without protest.[15]
- 2009 Law Quarterly Review 440 at 442-3.
- Minister of Health v New Clicks South Africa (Pty) Limited 2006 (2) SA 311 (CC).
- Sidumo v Rustenburg Platinum Mines 2008 (2) SA 24 (CC).
- (1997) 114 SALJ 656.
- Bingham The Rule of Law (Allen Lane, 2010).
- 2008 (5) SA 449 (SCA) at para 21.
- Lewis op cit 465.
- Ibid.
- Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC).
- An award-winning Channel 4 documentary, Mugabe and the White African, has been made about the Campbell family and the SADC litigation.
- http://sadc-tribunal.org/. See too http://www.chr.up.ac.za/index.php/documents/african-human-rights-case-law-database.html.
- The panel comprised Justices Pillay (Mauritius), Mtambo (Zambia), Mondlane (Mozambique), Kambovo (Angola) and Tshosa (Botswana).
- Gramara (Private) Limited and Colin Bailie Cloete v Government of the Republic of Zimbabwe and Attorney-General of Zimbabwe Case No HC33/2009 (heard on 24 November 2009).
- www.siberink.co.za.
- JC Steyn NP van Wyk Louw vol 2 p 879, quoting Van Wyk Louw's Lojale Verset (my translation).
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