Africa-Press – South-Africa. Busisiwe Mkhwebane’s litigation proclivities and her lawyers’ apparent imperviousness to her abuse of the system has prompted many people to argue that it’s time lawyers who encourage frivolous litigation be mulcted with personal, punitive costs, writes Tebogo Khaas.
The truth can be a somewhat nebulous concept. Antipathy to the truth, quasi-exceptionalism, subversion of the legal system, weak ethical moorings, and greed take too much out of our democratic system and help fuel the winter of our discontent.
Thankfully, the centre of gravity is always with the truth. But the venal and their stoic apologists, some clad in fine robes, don’t like that.
However, they have a problematic hole to thread.
Let me explain.
I love the sight of uniformed attire. From airline flight attendants, nurses, commissioned military and naval officers, constitutional court judges, and, of course, senior counsels.
No match
A look at senior lawyers’ dress code, their postnominals, and earnings makes for fascinating discourse and, often, misleading presumptions: mastery of the art and unimpeachable moral character.
Most satisfyingly, it also provides a mystical window into the sartorial elegance of lady justice.
Law scholars posit that the origin of the advocates’ robe is obscure and that there exist two theories: The first is that this was once a money sack for brief fees. According to some, it is divided in half to create two segments, one for gold coins and the other for silver.
The theory is that since advocates were not openly paid for their work, clients made a payment into counsel’s pocket, literally behind their back, to preserve their dignity. The idea was that if advocates could not see how much (peanuts) they were being paid, the quality of their advocacy in court could not be compromised. And so it was that a gaggle of senior counsels, resplendent in silky robes, staged what was supposed to be a legal duel before an ensemble of the most eminent jurists last week as suspended Public Protector Busisiwe Mkhwebane pleaded with the apex court to be allowed access to her wrecking ball.
The problem was, save for their attire, her lawyers were no match for the opposing side.
Counsel for Mkhwebane, Dali Mpofu, bereft of any sense of irony, argued that President Cyril Ramaphosa had a conflict of interest when he suspended Mkhwebane from office earlier this year.
This argument was eviscerated within a few minutes by Ramaphosa’s counsel, Steven Budlender, who argued that if there ever was a conflict issue, Mkhwebane was the one who was conflicted.
Budlender argued that Mkhwebane initiated the Phala Phala investigation on the President months after Ramaphosa had sent a letter of intention to suspend her long before the Phala Phala debacle arose. In fact, he argued, it was evident that Mkhwebane had attempted to upend her looming suspension by the President through the Phala Phala matter.
Long-winded sermon
At this point, one had thought that Mkhwebane’s legal enablers would neatly fold their robes and beat a hasty retreat to their chambers. Alas! Counsel for UDM Vuyani Ngalwana, who joined late in support of Mkhwebane, unleashed a long-winded sermon masquerading as a legal argument to a seemingly disinterested bench and opposing counsels.
Despite their poor showing, rest assured that it will be raining peanuts for Mkhwebane’s lawyers this Christmas – just for robing up and showing up in court!
Whichever way one looks at it (gold, silver or peanuts), an incontrovertible fact remains that under Mkhwebane, the office of the Public Projector has morphed into a honeypot for unscrupulous suppliers of goods and services. From information technology to legal services, there are clear signs that that office is not deriving value for its spend as enjoined by section 217 of the Constitution.
This has prompted the Auditor General’s (AGSA) office to issue a statement in which it undertook to perform deep dives on legal expenses by the office of the Public Protector in future audits. This is a sad indictment and a right royal egg on the face of the AGSA as it had dished out unqualified audits to that office since Mkhwebane was appointed, as if unqualified audits were on a Black Friday special for Mkhwebane and her enablers.
Sounding more like Wall Street movie character Gordon Gecko who opined that greed was good compared to when advocates were not openly paid for their work and sought to preserve their dignity, a shameless and conceited lawyer uncannily dismissed multimillions in fees he raked in from Mkhwebane’s office as peanuts (sic).
I do not think any lawyer should suffer the indignity of being considered an ungrateful, greedy member of our closest cousins, lest the old English proverb that if you pay peanuts, you get monkeys be proven.
Mkhwebane’s litigation proclivities and her lawyers’ apparent imperviousness to her abuse of the system has prompted many people to argue that it’s time lawyers who encourage frivolous litigation be mulcted with personal, punitive costs just as it is the case in other jurisdictions including the United States. American jurisprudence provides for counsel’s liability for excessive costs for frivolous, vexatious litigation.
US Code §1927 states thus: “Any attorney or other person admitted to conduct cases in any court of the United States or any territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”
Meanwhile, it is disconcerting that the Legal Practice code of conduct, particularly section 29 of the Code, only addresses counsel’s calculation of fees in an open-ended fashion and is open to abuse by unscrupulous counsel.
Walus judgment
The time is nigh that the Legal Practice Council and our legislature consider codifying such measures as can effectively rein in billing excesses and abuse of the system as is seemingly occurring at the office of the Public Protector.
Interestingly, as Mkhwebane was fighting for her immediate reinstatement, the same court issued a unanimous ruling in which it ordered the release on parole of Janusz Walus, a Polish immigrant who has been jailed for more than 27 years for the murder of former SACP and ANC leader Chris Hani.
Soon after the judgment, Hani’s wife Limpho, who had attended court when the order was made, reacted by unleashing venomous, unjustified attacks on the judiciary. This was despite the fact that justices of the apex court had, as expected, merely interpreted and applied existing laws impartially without fear, favour or prejudice.
Unwarranted and asymmetric attacks on the judiciary prompted the General Council of the Bar of South Africa (GCB) to issue a strong statement in which it excoriated those behind such that attacks on and criticism of the judiciary attach an “obligation of civil society to uphold, promote and respect the integrity and independence of the judiciary, and with regard to the judiciary’s responsibility to interpret and apply existing law impartially without fear or favour.”
Lest we forget, in 2015, erstwhile Chief Justice Mogoeng Mogoeng’s judiciary and then President Jacob Zuma’s administration were never denigrated by the ANC and its alliance partners when Chris Hani’s murder co-conspirator Clive Derby-Lewis or arch-evil Eugene de Kock were released on parole with the latter reportedly rewarded with an R40,000 per month allowance and a staffed house to live in.
It is hard for anyone to reach any other conclusion other than that most ANC, SACP and Cosatu leaders have little appreciation of nor interest in telling the truth, never mind a commitment that the law be applied consistently to everyone. Although picketing outside the Constitutional Court in Gucci attire may make for a good weekend outing, it does not exonerate these leaders from their duplicity and for letting down the spirit and memory of Hani.
Rather, it is an indictment on them for having failed to use the ANC’s two-thirds majority it once held to make legislative amendments of the parole system as they deemed appropriate.
Interpret the law
Judges do not make laws. They merely interpret and apply them in accordance with the Constitution.
And like politicians, judges are also people with families, friends and feelings. Just as society sympathises with those who have suffered the loss of loved ones or fallen victim to crime, assailing the judiciary and wishing harm on a select few is as insensitive as it is diabolical.
It is disquieting when some members of the Executive and Legislature join in the evil chorus while others remain silent in the face of coordinated attacks on members of the judiciary.
South Africans should be grateful for and hope that the strength and independence of the judiciary remain resolute and does not falter.
Watching some lawyers’ lacklustre performance at the apex court last week only confirmed that, adorned by the most underserving, silk can feel and look just as woeful as crimplene. I remain fascinated and adoring of uniforms, still.
– Tebogo Khaas is chairman of Public Interest SA, a not-for-profit organisation that seeks to advance constitutionalism by, inter alia, exposing abuses of power and betrayals of the public trust by those entrusted with the exercise of public power.
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