Something rotten in the state of the law

Lawyers love Latin axioms. Not only do these pithy phrases dating to Roman times encapsulate the law’s basic tenets, but also remind we plebs of the lawyer’s learning, which even if we don’t always benefit from as clients, we are likely to have to shell out dearly for.

One popular maxim is Quis custodiet ipsos custodes? It translates to ‘who will watch the watchmen?’ and alludes to the corruptibility of control mechanisms.

That’s particularly apposite to South Africa with its history of state authoritarianism, a strain of which thrives in the Legal Practice Bill (LPB), a piece of legislation that our legal establishment appropriately opposes. But it’s also a maxim ignored by the same establishment in its stubborn defence of secret, self-serving, internal disciplinary procedures – procedures that ironically make imperative the LPB’s external oversight and Ombud clauses.

As this column has highlighted previously, SA lawyers uniquely conduct their disciplinary processes in secret (except for the complainant and the charged practitioner) and then won’t disclose publicly the finding and sentence (unless the practitioner is struck from the roll). This contradicts best practice in virtually every democracy. Many countries have an independent Ombud to oversee the profession and protect the public; all provide, upon request, detailed information about serious complaints against lawyers that have been upheld.

This local lack of transparency is probably unconstitutional. Advocate Paul Hoffman, director of the Institute for Accountability in Southern Africa, says that ‘openness is a foundational constitutional value’ that ‘applies to all governance, including that of errant attorneys’. University of Cape Town law Professor Hugh Corder describes the secrecy as ‘horrifyingly’ unconstitutional.

SA’s four regional law societies and the over-arching Law Society of SA (LSSA) remain unmoved. They have steadfastly refused to release to this columnist details of successful complaints, except in the broadest statistical terms.

Nor do the law societies appear to have much regard for the Promotion of Access to Information Act (PAIA). For starters, none explains on its website, as it is legally obligated to do, how it handles such requests from the public. So one had to give notice to each of an intended PAIA application.

Gavin John, director of the KwaZulu-Natal society, despite several reminders over four weeks, simply won’t respond. Mzwekhaya Mohobo, director of the Free State society, is stalling, first wanting to know ‘the reason and the purpose’ of the request, then checking one’s journalistic credentials.

Such deliberate foot-dragging is patently grounds for a professional misconduct complaint. Snag is, one has to complain to the very societies about which the complaint is.

William Mokoena, director of the Cape Law Society (CLS) was slow to stir but after three weeks provided a PAIA application form. However, he did warn that the CLS council had resolved ‘to seek legal opinion in order to establish some clarity’ regarding the CLS’s position in relation to the PAIA.

Thinus Grobler, director of the Law Society of the Northern Provinces (LSNP), responded timeously, stating that though the LSNP ‘would prefer not to compel you to make use of a formal PAIA application … it may be problematic to furnish the detailed information requested’.

Then, after the LSNP council had pondered the request, Grobler provided a PAIA application form and also an explanation. ‘The society often receives serious criticism from members that they are being unnecessarily victimised, harassed and persecuted by the society. To now expect the society to disclose the names of attorneys who were convicted of minor transgressions, may do their professional reputations irreparable harm and subject the society to even more severe criticism from members and … may result in court applications to interdict the society from [disclosure].’

In other words, attorneys consider any disciplinary conviction, short of being struck from the roll, to be a ‘minor transgression’ of no public interest, and the so-called oversight bodies meekly agree. Meanwhile, the LSSA rejects anything in the LPB – which reaches parliamentary committee stage this month – that would dilute its ‘right’ to be the sole and secret protector of the public from rapacious and incompetent lawyers.

There’s another Latin precept applicable here. O praeclarum custodem ovium lupum – a great protector of sheep, the wolf.