OPINION: SA regressive in protecting constitutional frameworks that quash abuse of power

The rule of law has been under pressure for some time in South Africa. This is not surprising. There is a global trend, prominent in the United States under the Trump presidency but by no means unique to it, of democratic institutions and constitutional checks on power being undermined and fundamentally called into question.

South Africa is not immune to this trend, but we have more reason than most to understand the importance of principles and institutions that entrench democracy, that provide constitutional frameworks that protect against abuses of power and ensure the rule of law is protected. A quick reminder of our history makes a compelling case for why these principles are so important and why attempts to establish authoritarian rule are to be resisted.

Protecting these principles and institutions is no easy task. It can seem abstract to refer to exalted principles of law and the Constitution when systematic inequality continues to blight our country, and when political instability and lack of leadership do not show signs of addressing these challenges. But this does not mean we should be apologetic in defending the Constitution, the law, and the institutions established by them.

An important element of protecting systems and institutions of government is to ensure that those who abuse those systems face consequences for those actions. Here, South Africa has not done well. We can think of the effectiveness of so-called ‘Stalingrad’ defence tactics in high-profile court cases, of shortcomings in the Judicial Service Commission in appointing and holding judges to account, and in the conduct of legal practitioners (both high-profile and otherwise), all of which paints a gloomy picture about the effectiveness of our institutions and systems in resisting manipulation and downright abuse.

In this context, two recent developments paint a slightly brighter picture, and suggest that the wheel may be starting to turn, slowly, in ensuring the rule of law and constitutional mechanisms are protected.

The first occurred where the Constitutional Court rejected an appeal by the MK Party and former judge John Hlophe against an earlier high court decision to interdict Hlophe from taking a place on the Judicial Service Commission. Appealing this decision was an unusual step, as the second part of the proceedings, where the court will decide whether to make a more permanent order on whether Hlophe can be a member of the JSC, is still ongoing (the high court has heard arguments and the judgment is pending).

As Freedom Under Law has pointed out, the Constitutional Court’s decision, and particularly the decision to award costs against the appellants, can be seen as a positive move in that it sets down an important marker that courts will not countenance appeals at every stage of the process.

The second was the announcement that the Legal Practice Council (LPC) it is convening a disciplinary inquiry into complaints against advocate Dali Mpofu SC. The complaints relate to issues including Mpofu’s conduct during the parliamentary inquiry which preceded the removal from office of former Public Protector Busisiwe Mkhwebane. The inquiry is set to begin on 30 April.

This is a welcome development as the LPC has frequently been criticised for failing to deal adequately with complaints against legal practitioners, including Mpofu. Indeed, it has been reported that attempts within the LPC to revisit an early disciplinary committee finding dismissing a complaint against Mpofu for telling a colleague to “shut up” were stymied by a walk-out of LPC members. These proceedings therefore may provide an important reminder that even the most high-profile of lawyers cannot act in a way that undermines the legal system.

This outcome cannot be taken for granted, and vigilance will continue to be required to ensure that the kind of protections for the rule of law we have described are upheld. It was unfortunate that former Public Protector (now Professor) Thuli Madonsela, whose cross-examination by Mpofu during the parliamentary inquiry prompted some of the complaints against him, has indicated that she does not wish to be involved in the process.

Professor Madonsela is quoted as saying that: “I have moved on and, as a believer in ubuntu and its restorative justice ethos, I have been restored as the court of public opinion found me to have handled Mpofu’s rogue conduct … with grace, professionalism and firmness.”          

Her cross-examination had prompted Professor Pierre de Vos to comment that it “raises broader questions about the ability and willingness of the Legal Practice Council … to uphold ethical standards within the legal profession.”

Regardless of what view the court of public opinion might take of the matter (if a single view can ever be discerned), this is insufficient to provide the institutional protection that the rule of law needs and extends far beyond Madonsela’s personal opinion of the matter.  

The cross-examination occurred in a highly publicised forum and has the potential to undermine the legal system if it appears that inappropriate questions to witnesses and other potential professional misconduct can take place with impunity. As uncomfortable as it  may be for a witness to relive such an event, there is a higher duty to the rule of law to ensure that conduct which may amount to a serious breach of professional ethics does not go unsanctioned because of a personal unwillingness to engage with the process.

Where, then, does this leave us? With grounds for cautious optimism perhaps. The courts have resisted what may be seen as an example of lawfare and reminded future litigants who may be too eager to bring an appeal that there are costs attached to actions that may be seen to constitute "lawfare". 

The LPC, in a slumber for so long appears to be slowly awakening though question marks that remain about its institutional integrity.