Jeremy Gauntlett
01 February 2011
Jeremy Gauntlett questions the dangerous complacency of the
legal profession
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.
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]
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[1] 2009 Law Quarterly Review 440 at 442-3.
[2] Minister of Health v New Clicks South Africa (Pty)
Limited 2006 (2) SA 311 (CC).
[3] Sidumo v Rustenburg Platinum Mines 2008 (2) SA 24
(CC).
[4] (1997) 114 SALJ 656.
[5] Bingham The Rule of Law (Allen Lane, 2010).
[6] 2008 (5) SA 449 (SCA) at para 21.
[7] Lewis op cit 465.
[8] Ibid.
[9] Chief Lesapo v North West Agricultural Bank 2000 (1)
SA 409 (CC).
[10] An award-winning Channel 4 documentary, Mugabe and the
White African, has been made about the Campbell family and the SADC
litigation.
[11] http://sadc-tribunal.org/. See too
http://www.chr.up.ac.za/index.php/documents/african-human-rights-case-law-database.html.
[12] The panel comprised Justices Pillay (Mauritius), Mtambo
(Zambia), Mondlane (Mozambique), Kambovo (Angola) and Tshosa (Botswana).
[13] 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).
[14] www.siberink.co.za.
[15] JC Steyn NP van Wyk Louw vol 2 p 879, quoting Van
Wyk Louw's Lojale Verset (my translation).
My younger brother drowned
while tracking his cattle that had strayed on to the other side of the
river
Photo: AP
