One of the most important but often neglected aspects of the Rule of Law is the requirement that individuals must be able to enforce their rights and legal entitlements in a court of law. At the heart of the Rule of Law is the notion that we are a rule-based society and that everyone – no matter how powerful or weak – must have the equal chance to enforce their rights and legal entitlements as set out by law.
However, in South Africa most people – let alone poor people – do not have the money needed to pay for lawyers that would enforce their rights and entitlements in court. A poor person who enters into a verbal contract with someone who fails to honour his or her word, will not be assisted by the law if the powerful contractee just ignores his or her obligations. Neither will such a person have much chance to challenge an unjust, unfair or unconstitutional decision by a state official to stop her pension, evict her from her shack or confiscate her goats – simply because such a person will not be able to pay lawyers to represent him or her.
It reminds one of the famous saying by Anatole France: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”
Yet, when politicians talk about the Rule of Law they often do not deal with this harsh reality which – perhaps more than the lack of transformation on the bench – negatively affect the legitimacy of the courts and of the legal system in South Africa.
For some communities – especially those who are well organised – relief can come in the form of the Legal Resources Centre, the Women’s Legal Centre or private law firms who do pro-bono work or otherwise assist poor litigants at reduced cost. One such firm is Smith Tabata Buchanan Boyes who recently represented backyard shack-dwellers with no access to formal housing in a case against the City of Cape Town (at a reduced rate at the request of the South African Council of Churches).
As Jackie Dugard and Kate Tissington reports in this morning’s Business Day:
The backyarders belong to Abahlali baseMjondolo, a national shack-dwellers’ movement with its base in Durban. They had occupied an empty piece of land in Macassar Village, on which they erected shacks, in mid-May. However, the City of Cape Town’s Anti-Land Invasion Unit, together with the police, demolished their structures and confiscated their materials.
Abahlali won the first phase of its battle when it secured an urgent interdict against the city , preventing the demolition of any shack or structure at Macassar Village without an order of court. It also compelled the city to return to the occupiers all building materials that were illegally confiscated. However, the city defied the interdict and continued demolishing shacks and confiscating building materials.
But in our lovely capitalist system, no good deed usually goes unpunished, so on 18 June Smith Tabata Buchanan Boyes received a letter from the city of Cape Town terminating all the city’s contracts for legal work with the firm. The letter from the director of legal services notes: “It has come to our attention that whilst acting on behalf of the City of Cape Town … you also acted for a third party against the city. The city is therefore terminating its mandate with your firm.”
This seems deeply disturbing to me and may have serious consequences for poor litigants and for the Rule of Law. One can concede – as Dugard and Tissington does – that there might well be instances where a direct conflict of interest would preclude a law firm, say, from representing a municipality in an eviction application while also representing the people under threat of eviction by the city.
Although in practice some law firms “choose sides” and act, say, either for employers or the unions, there would usually not be any conflict of interest merely because a law firm represents an organ of state (like the city of Cape Town) in other matters, while also representing a third party against that organ of state in an unrelated matter.
It seems suspiciously like the City of Cape Town has ”punished” a law firm for acting on behalf of poor litigants in a case against the city. This sets a dangerous precedent. What would happen if the national government follows the example of the DA-led city? Law firms will then have to choose between representing poor litigants who want to take on the state on the one hand, or receiving lucrative work from the state on the other. As firms have salaries to pay and directors to keep happy, they will mostly stop representing those who wish to enforce their rights or legal entitlements against the state and we would move even further away from the ideal of a country under the Rule of Law than we already are.
The DA is trying hard to convince us that it is not (only) the party of rich white privilege anymore and Helen Zille has been dancing and singing with black voters to show how compassionate and non-racial the DA has become. But voters are not stupid and during the election almost no poor black citizens voted for the DA. And a good thing too, because decisions like this by a DA-led city seems to confirm the worst fears about the DA and what it really stands for.
There is perhaps a bright light at the end of this tunnel. Given the fact that the ANC usually does anything that the DA does not do, it might well be that the ANC-led government will not follow the bad example of the DA-led city council and will ensure that just because a firm acts for poor people against the state would not mean that the particular firm will be blacklisted from doing work for the state.
A good post Prof., it’s sad that a pro bono action on the part of this law firm costed it its work with the City, however these humanitarian organisations like the Centre for Legal Studies, especially the Centre for Applied Legal Studies in Wits of which Jackie is a member, sometimes exploits poor people for their own selfish gains, like a certain Ms Mazibuko who claimed to be poor assisted by CALS turned out to be a rich MP who does not even stay in the township but the Court was at the end of the day misled. My honest opinion is the law firm should also have given a courtesy notice to its client of a pending legal action which it had to take on a pro bono basis at the insistence of a powerful SACC.
Legal professionals have been living under the sword for some time, not only by municipalities and the government, but also by corrupt judges. I am yet to meet one legal professional that has the spine to stand up against a corrupt judge. Maybe this anecdote of yours can be seen as just reward for turning a blind eye.
I think Mdu may have Lindiwe Mazibuko MP confused with Lindiwe Mazibuko, the resident of Phiri, applicant in the Phiri water rights matter, who died in May 2008 after a long illness. The case continues to be persued by her several co-applicants.
Could it be that in a country of around 45 million people, there might be two Lindiwe Mazibukos (or shock, horror) three?
As I understand it, Lindiwe Mazibuko the call centre agent from Vosloorus is also not a party to the Phiri water rights case.
Charles, let me ask you one question, if legal professionals have no spine to stand up to corrupt Judges, how then can we be sure of their independence once appointed judges, how would they suddenly acquire independence of thinking and judgment once judges especially if you keep in mind that recently ouc CC Judges were afraid that a junior judge was trying to influence them, so it’s true they are not independent!
Mdu, Lindiwe was not a rich MP and I am informed that she lived in appalling conditions (in Phiri) and was in fact indigent. Where did you obtain the information about her being a rich MP?
I think that on the strength of the Professor’s piece, one can reasonably conclude that the City’s decision to terminate the Smith Tabata mandate was quite anti-poor.
Actually, I did consider the view that a client should never be expected to brook its attorneys acting against it. Now this position may just wash where the client is a private person. But I do not think it can reasonably hope to pass muster where the client is the State. That is, the State is an extraordinary client insofar as it owes responsibilities which private persons plainly do not.
In a nutshell, the State should be held to higher standards. In a better world, I think this would contemplate the State being precluded from acting on, or being seen to be motivated by, whim, dark fancy or ill-temper.
But what are the possible solutions? Should the legislature – or a court in an appropriate proceeding -formulate laws or rules that would compel the State to preserve mandates with firms where, given the facts, the termination thereof would inspire the impression that the State is punishing the firm for acting against the it but in circumstances that disclose no direct conflict of interests?
It would be interesting to see suggestions as to how this potentially helpful means for enabling poorer people to pursue suits against the State could be safeguarded.
Charles, your sweeping statement about corrupt judges – without providing any proof – seems highly problematic. In a democracy judges are of course not above criticism (it is one way in which judges are held accountable). But then the criticism must be specific and based on what judges have actually proven to have done (lied, taken money from a company and then doing favours for them etc) or based on the judgments written by judges. Broadsides like yours have the potential to undermine respect for the judiciary and may undermine their independence.
Mdu, your question reminds me of the comment made by an apartheid era Minister of Justice who said: “The problem with these judges is that once they are appointed they think they are there on merit and they start thinking for themselves.” (Which also reminds us that there was affirmative action for white, Afrikaans judges during the apartheid era!)
My apology – Specifically:
Magistrate Len Kotze
For making the worst hash of S vs C Becker and others
Judge W L Seriti and Judge P Z Ebersohn
For their wholehearted support of the judgement of Magistrate Len Kotze
Judge P E Streicher and Judge K K Mthiyane
For refusing to hear the appeal of applicants even thought their application clearly highlights the gross incompetence/negligence of the aforementioned judges.
All the Constitutional Court judges (including the wise CJ Pius Langa)
For refusing to hear the appeal of the applicants even though they were denied almost every one of their basic constitutional rights and their application clearly showed that.
Complaints have been lodged against all these judges and these complaints were accepted on merit by CJ Pius Langa himself. Once the complaint against the CC judges were lodged the process ground to a halt – surprise, surprise. Even though I have signed papers confirming that these charges are lodged, the JSC is openly denying ever receiving such complaints. Any attempt to get feedback is met with deathly silence. Hmmm…
Proof: http://files.approver.com/public/thinkfirst01/7217/Len Kotze Judgement Analysis 20081124.doc
Proof with legal backing will follow once I find a legal practitioner with a spine for game fish.
Also…
The only response ever return was from JP B M Ngoepe stating that it is irrelevant when judges are wrong.
See: http://files.approver.com/public/thinkfirst01/7214/Complaint_Answer_Ebersohn_Seriti_NGoepe_Opinion_20090121.pdf
Proof should be:
http://files.approver.com/public/thinkfirst01/7217/Len%20Kotze%20Judgement%20Analysis%2020081124.doc
This will teach Smith Tabata Buchanan Boyes to sit down with their clients first before they undertake any work that would be prejudicial to those clients’ interests. This has got nothing to do with the poor. It is just a publicity stunt which has blown right in front of the eyes of Smith Tabata Buchanan Boyes. It was very irresponsible for the firm to accept the mandate from the poor people to act against its own clients without those cleints’ knowledge and written approval.
I’m with Sne on this one. While I agree with Leigh’s argument that the State is an extraordinary client in terms of it’s size and breadth and requirements for continuous legal services, and I also agree with the Prof that to punish a law firm for acting against the State is somewhat undemocratic, this case doesn’t seem to fit those criteria.
As I read it, the law firm in question represented both sides of the equation. Um, is that even allowed? If I was a client who had a lawyer representing me, and his mate two offices down the hall from him was representing against me, I would be decidedly irritated with my chap. Even more so if my lawyer hadn’t informed me of this – surely the client (regardless of who they are) needs to waive any conflicts of interest first?
If the firm was not representing the City in this case, and only represented the other side, then fine – call it a foul on CT’s side. But no organisation wants their attorneys to be fighting both for and against them – either the firm should have taken the publicity and forgone the City’s fees, or the other way around. You can’t have your cake and eat it.
To address one other issue – the fact that poor black voters did not vote for the DA is more a question of South African voting patterns than anything – I doubt many of those loyal ANC voters spent much time analysing manifestos of various parties and weighing up past performance vesus promised future performance. By and large voters in SA are ignorant, and will vote for the party that most looks like them. It has nothing to do with stupidity or what the DA (or ANC for that matter) stands for.
The Judiciary cannot be excused from the rot that has set in with respect to equal rights under the law.
@Charles, agreed.
What seems to be missing in so much of South African life and law is true empathy, compassion and the setting aside of personal opinion. Courage is also required, especially in setting precedent law without fear of appeal.
As for the decision by Cape Town Council, it could have been handled much differently. I also don’t believe that a law firm should have accepted the fight, rather passed it on.
Further, I suggest that Zille will encourage Cape Town to reverse the decision.
Not a single law firm of any substance can or will represent you against a bank in South Africa.
This appearred in Noseweek in January 2008:
“On a tight lead
”
Readers will recall that in noseweek’s recent contretemps with First Rand, the editor ended up arguing much of the case himself, after our attorneys withdrew at the last moment. Why did they withdraw? To get conveyancing work from FNB, the firm had signed a contract not to act for anyone against the banking group.
Well aware of the vulnerability of smaller legal practices, we offered to allow their withdrawal to pass without protest, provided they gave their reasons in writing and let us look at the restrictive clauses in their contract with the bank. They agreed, then left us waiting. So back we went…
Initially we were all rather nice to each other. But when the senior partner decided it would be “inappropriate” for us to see their contract with FNB, things suddenly got less genteel. Senior Partner accused us of blackmail and declared that we hadn’t actually been prejudiced by the withdrawal, since we’d won the case. Unusual that – lawyers admitting you didn’t need them in the first place. Goodbye Claremont-based firm, Tinklers.
Some say it’s nigh impossible to get a firm of any substance to act against a bank. We know Cobus Potgieter didn’t have much luck: he’s suing Absa for having him blacklisted as an insolvent (he isn’t), but was told by seven Western Cape firms, including Jan S de Villiers, Cliffe Decker, Mallinicks, Cluver Markotter and, of course, the firm formerly know as “Nedbank” (Edward Nathan Sonnenbergs) that they couldn’t act against Absa.
The small firm that eventually accepted his brief wasn’t exactly his first choice to handle a complex multi-million rand case against a major bank.
It’s also hard to get attorneys to talk about these deals, but Potgieter put us on to a friend who would, on condition of anonymity. The way he tells it, the banks have separate panels for conveyancing and commercial work and firms apply to a regional office to get on to them. Applicants undertake not to act against the bank in the future – and confirm that they haven’t done so in the previous six to 12 months! Which is why even those aspiring to do conveyancing for a bank won’t represent you against that bank.
These contracts are renewed annually, so banks can discreetly “discipline” anyone who steps out of line by not renewing. Our attorney friend undertook to send us a copy, but weeks later we’re still waiting. You, dear reader, are in terror of criminals; attorneys live in terror of banks.
noseweek then wrote to the senior partners of ten major South African law firms (if you didn’t crack the nod, may we offer our sincerest apologies): Jan S de Villiers, Hofmeyrs, Deneys Reitz, Mallinicks, Routledge Modise, Cliffe Decker, Bowman Gilfillan, Webber Wentzel Bowens (Webbers), Werksmans and Edward Nathan Sonnenbergs. We asked simple questions we were confident attorneys could handle:
“Are you on the panels of any of the four major banks: Absa, First National, Nedbank and Standard? Are you contractually or otherwise precluded from acting against them, or restricted in your ability to do so?”
The response was decidedly underwhelming. Mallinicks said sorry no can do, contractual confidentiality, attorney/client confidentiality and all that. There you go – attorneys can’t reveal the names of their clients.
Edward Nathan Sonnenbergs had slightly more to say: yes we act for all four – but we can’t discuss “private contractual arrangements” that we may have with clients. Needless to say “our professional and ethical obligations to our clients preclude us from accepting instructions against our clients”.
The others didn’t bother to respond (despite reminders). May we surmise that a number of phone calls were made shortly after our faxes went out, with the general consensus that we were best ignored?
So there it is: large firms do have contracts with their clients. Nice to know that, at least.
We also wrote to the four banks, thinking that, since everyone knows bankers are smarter than lawyers, we might get better answers. And we asked: “Please furnish a list of the law firms in Johannesburg/Sandton and the Western Cape who are on your conveyancing panel or who act for you in other matters? Are those firms, by contract or otherwise, precluded from acting against you, or restricted in their ability to do so? Please provide a list of advocates at the Johannesburg and Cape Town bars with whom you have agreements that preclude them from acting against you, or restrict their ability to do so.”
We did get a bit more from the banks, perhaps because they’re trained to be slightly more polite than law firms. Standard didn’t give much – but they may be sulking because we sometimes call them by a funny name. Standard has a conveyancing panel, but there are no contractual restrictions on their attorneys and advocates. Any conflict would be dealt with by the attorney or advocate in terms of their own conflict management procedures.
Nedbank, we learned, do use the services of many firms of attorneys for a variety of matters (really? we’d never have guessed). And they say “attorneys and advocates are bound by their professional rules of conduct to ensure that they avoid conflicts of interest when dealing with a client’s matter”. How helpful!
First National doesn’t have a panel, but business units of the bank choose their own lawyers, some of whom may be on a “preferred list”. First National “fully supports the independence of the legal profession”. (Not according to our erstwhile attorneys, Twinkles!)
Absa have panels of attorneys, but the names can’t be disclosed without their consent. (Imagine a firm of attorneys saying “we act for ABSA but would rather nobody knew”.) And, said Absa, “our arrangements with these law firms are also confidential and we can therefore not provide answers to your questions”.
But what’s the issue? you ask. Well, clearly no-one wants lawyers to act against clients in linked matters. We’d be mightily pissed off if a firm we’d used in a media matter acted against us in a later media matter.
But where’s the conflict where a firm that gets a few conveyancing scraps referred by a bank, acts against that bank in a totally unrelated matter?
Doesn’t the fact that all the major law firms seem to act for all the major banks in conveyancing matters highlight what a sham the whole thing is? Effectively, it allows the banks to tie the hands of any law firm that counts. Isn’t there something anti-competitive about such an arrangement? It looks rather like an abuse of a dominant position, where a company with market power requires suppliers not to deal with a competitor. It may even circumvent the constitutional right to have a dispute decided in a fair public hearing.
Yes folks, that major financial institutions have the country’s legal establishment in thrall has been yet another dirty little secret.
*** A recently retired conveyancer has come up trumps with the document containing those “confidential arrangements” Absa so regrettably could not tell us about. Titled “Criteria for Entering the Absa Home Loans Panel”, it reveals that, as part of the application procedure, an Absa “attorney liaison consultant” will visit the applicant attorney to ensure that the bank’s “minimum criteria for appointment” have been met.
Top of the list of criteria: “The firm should not be in the process of representing a customer against Absa and has not in the last six months been involved in such a matter.” ***
http://www.noseweek.co.za
Interesting bind?
Why would a client demand a monopoly on their service providers attention? Perhaps it’s because they fear the offered service will be compromised by a conflict of interest. Or is it because they are using their buying-power to subdue opposing voices
Now flip it around and put yourself in the shoes of the little guy (say Janey) who has an issue with a big guy (say Standard Wank). Janey’s screwed on both counts. Her service-provider does some work somewhere for Standard Wank, so they’re compromised. And she has no buying-power to warn the service provider off further work with Standard Wank.
So, acting like the City she’s off, indignant. The service provider takes a leak and gets back to work as usual
But where can Janey go?
It is totally scandalous that a law firm is punished for doing pro-bono work. Clearly, the head of Cape Town’s legal department has a very poor understanding of what it means to live in a constitutional democracy. Through pro-bono work, law firms enact their citizenship and act, for once I dare say, for the good of all. And then they get punished for it by the state. Another indication that we live in a country in which the state machinery has little coordination and too many conflicting goals on the way to deepen democracy and spur development.
I think: The whole thing starts with ‘competition’ and ‘free market’ principles. As Snowman points out, law firms compete (sometimes standing ‘bak-hand’ – excuse the Afrikaans!) for conveyancing work emanating from the major banks – and they are excluded from that work (penalized) where they have represented someone against a bank – pro bono or not. A Local Council in today’s terms is also just a business, and they have to use the same criteria as banks and other businesses in the private sector to determine who will best defend their interests. Moreover, some law firms compete vigorously for work emanating from local authorities (where were the days with clear rules against touting?!) , and the competition will be very quick to point out that there might be a conflict of interest if another fiorm represents the Council. I think that the problem does not really lie in deciding whether lawyers are bona fide in representing their clients’ needs and defening/advancing their rights and should therefore be allowed to represent the opposition at times; but in the fact that they are being paid for their efforts, and the bigger their sucesses, the better the pay or the bigger the slice of cake from the market they get. This is where I like the English system. One day a QC represents the Crown in a criminal or civil matter, the next day the same QC represents a defendant in a criminal matter or a private litigant in a civil matter against the Crown. All for the same pay. Lets them focus on the law and legal principles – and not on the money that they will get if they are very sucessful.
Prof
I know it’s a bit off topic, but in your post ‘COPE’s rogue’s gallery grows…. or not?’ you (very sarcastically) refer to Badih Chabaan as a trustworthy and upright citizen. Furthermore, this man has also been accused (by his newest bedfellows, i.e. the ANC) of being involved in a range of organised crime activities including dealing in false passports, the drug trade, money laundering, prostitution, human trafficking and murder.
How can his appointment as mayor of the cape winelands district be justified? Does this not ultimately prove that the ANC as a movement is a fraud with no moral consciousness and awful leadership? Truly is a disgrace 1) for the ANC to be associated with such people, let alone appointing him as a leader and 2) to have this criminal as the postrerboy for the jewel of the cape.
While I agree with the Prof’s post in principle, both the post and the article to which we are referred are blatantly one-sided and very much based on supposition.
There is no credible evidence that the termination of the services of the law firm are directly related to the firm’s representation of the shack-dwellers. There is merely supposition that this is so. To make such an assumption without having any input from the City is, at the very least, biased and unsubstantiated reporting.
Perhaps one should first have the facts before one starts shouting “abuse of power”.
“confirm the worst fears about the DA and what it really stands for.”
Prof, a bit melodramatic! Yeah ok it is not a good thing that the DA-City has done and shame on them. I am by no means a DA fan, but I reckon any law firm representing a client against another client is rather dim and deservers firing.
Samantha, the letter from the city said: “It has come to our attention that whilst acting on behalf of the City of Cape Town … you also acted for a third party against the city. The city is therefore terminating its mandate with your firm.” This seems to establish a clear link, no?
I am looking forward to seen Socialism in my life time.
Prof
It’d be interesting to read your thoughts on Ngobeni’s email to Hugh Amoore, his calling Hlophe a ‘jerk’ and the disciplinary panel’s finding. But I suppose we won’t get any comment from you, since UCT are your new employers and first it might be dangerous for you to start your tenure in this way and second anything you say will be attacked by your readers as biased given your new job. Still, it would be interesting…
Sarah Palin, there is such a thing as academic freedom which – I would argue – allows me to express my opinion within the bounds of the law, regardless of who my employer might be. But I have decided not to comment on the email. My mother taught me that it is bad manners to kick someone when they are down and – in a weird way – have some sympathy for Mr Ngobeni.
In the face of the City’s Anti-Land Invasion Unit demolishing people’s makeshift homes in Macassar, it was incredibly difficult for the backyarders to find lawyers to assist them. Indeed, access to good legal representation for poor people is unfortunately a massive problem in SA. It took Abahlali and the SACC three days to eventually find a law firm willing, and with the capacity, to take on their case and apply for the urgent interdict (which the City proceeded to contravene). The question then, is where exactly should the law firm have passed the fight on to? It is clear that law firms are wary (and we now know why) to take on pro-poor cases against the City. I am afraid the City’s actions in this regard smack of intimidation, and a stern warning to any who take on ‘troublesome’ cases against the City and its entities for community groups or social movements.
It should be clarified that STBB was not acting for and against the City in THIS case – in this scenario of course a legitimate conflict of interest would arise. It was only acting for the backyarders to obtain an urgent interdict against the City, preventing it from destroying their homes and confiscating building materials. The City has failed to provide an adequate explanation for why it sacked STBB, hiding behind vague and defensive accusations. Why will the City not explain what exactly its protocol entails, and how this so-called ‘conflict of interest’ arose between itself and STBB? The Director of Legal Services says that “the firm would have been able to use confidential information it was privy to in litigation against the municipality”. This accusation cannot simply be taken at face value.
The reality is that STBB does a bit of conveyancing work (which is by its nature non-litigious) for the City in the Macassar/Strand area. This does not create any real conflict of interest with acting in an urgent spoliation against the City in a factually and legally unrelated matter which just happens to be in the same general geographical area. Any privileged information the firm may have accumulated in its conveyancing work for the City (which would be negligible) would likely be completely irrelevant to the spoliation application. If it was relevant, it is highly unlikely that STBB would have taken the case in the first place. It is for qualified legal practitioners such as those at STBB, with a full appreciation of their ethical obligations both to facilitate access to justice and ensure confidentiality for their existing clients, to make this call. The vague protestations of a partisan legal adviser simply cannot be given much weight in deciding where the balance lies.
The City talks of “limiting its risk” but what does this mean? If it is allowed to be so vague in explaining its draconian actions, which have potentially dire consequences for access to justice for the poor, then what message is it sending to other law firms who would like to fulfil their obligations to extend access to justice to all?
It is not a weird way that you feel sympathy for Mr Ngobeni. I feel the same and many others do so. And even though I utterly disagree with his politics. It is very common for universities to use ‘disciplinary hearings’ , just another word for Kangoroo Court, against employees and students who no longer fit in and have irked those who hold powerful positions in universities. As the Weekender made it clear last saturday, such was the case against Ngobeni. I am sure one would find tons of such cases. No matter who the victim is, these processes are always ugly and demonstrate how far we have to go to create open and accountable universities.
Anonymouse wrote:
> A Local Council in today’s terms is also just a business,
> and they have to use the same criteria as banks and other
> businesses in the private sector to determine who will best
> defend their interests.
Believing that LCs can act like private corporations can lead
to serious errors. SCA found:-
Kempton Park/Tembisa Metrolpolitan Substructure v Kelder 51/98
SCA held: “The council, as has been stated, owes its existence to the
provisions of the Local Government Transition Act 209 of 1993 and
the proclamations made in terms thereof. Its powers and duties are
conferred by the Constitution, by other statutes and the relevant
principles of public and administrative law. To impose upon it
additional duties in accordance with the principles of private law
seems to me to negate its function as an organ of state and a branch
of government. “
I think this is only part of the issue. The City of Cape Town actually gets legal services from the majority of large law firms based in Cape Town. This means that they have a near monopoly and can (and do) prevent these firms from taking cases of the poor against the City.
The problem is not that the City terminated its contract with this one firm. if the city only got services from 1 or 2 or 3 firms that would not be an issue. The problem is that for poor people, it is very difficult for find ANY law firm willing to act on a reduced rate if their case is political. For instance, the community of Symphony Way was rejected by all the competant Cape Town law firms specifically because they did not want to jepordise their relationship with the City.
So its not about this case setting a precedent. The precedent is already there. Just call up the law firms and ask them why they didn’t take Symphony Way’s case.
This is of course the same STBB who have a few fewer directors as a result of buying conveyancing work ex PGP among others, and the same firm who sponsored Hlope JP’s sons education and had a partner miraculously become an acting judge around this time…
Maybe the city was just using this as an excuse to sever ties. Bad to have an ulterior motive , but maybe ethics arent STBB’s strong suit and the City didnt like the association?
@ Pierre,
The clause you refer to establishes a link to what exactly? It makes no reference to this particular case and while it could have been specifically designed to be vague to prevent people drawing the conclusion that it relates to the shack-dwellers case, one cannot merely assume that this was the only other case the firm was involved in.
I am not trying to dwell on the semantics here, but I do believe that until one has evidence that it was for this specific reason that the city fired the legal firm, it seems a little unfair to draw this conclusion and then to take a further step to generally denounce the policies of the DA based on this conclusion.
Pierre,
This is evident from the arguments above;
1. The City kicked STBB cause they acted against them.
2. People are defending the City merely because of your line: “because decisions like this by a DA-led city seems to confirm the worst fears about the DA and what it really stands for.”
Just withdraw that line and people will rally to your support on this article because they are not defending the City as such but defending DA.
3. STBB may have been endowed with benevolence in taking the case against the City but they made procedural blunders which any person in any commercial law firm should know better and not mess with.
4. Law firms may subscribe, or be expected to subscribe, to higher morals and be guided by the principles of justice but we must not lose sight of the fact that law firms are also businesses which need money in order to survive and prosper and should be conducted as such. The moment they lose sight of this and begin to act like they exist in a novel or fairytale, that is when things like the STBB matter happen.
Samantha wrote:-
>one cannot merely assume that this was
> the only other case the firm was involved in.
Good thinking ! I seek such a competent attorney to finish an
appeal, for which I’ve done the research, re. Ekuhuruleni LC who can work with email, rather than the SA-skaapie-method of ‘ry en praat’. Please contact
labeas AT gmail.com
Prof PdV wrote:-
> At the heart of the Rule of Law is the notion that we are a
> rule-based society and that everyone – no matter how powerful
> or weak – must have the equal chance to enforce their rights
> and legal entitlements as set out by law.
> However, in South Africa most people – let alone poor people
> – do not have the money needed to pay for lawyers that would
> enforce their rights and entitlements in court.
It’s outrageous what fees law-people command — eg. compared
to medical doctors. But it’s mostly determined by supply &
demand. An unintended consequence of the constitution, is that
now every illiterate can join the queue to help clog-up the
legal system.
Of course, it’s a big no-no to advocate a kind of ‘African
natural justice system’ where the respected Chief arbitrates,
without the industry of law-parasites intervening. The following
types of reports, show that the by-passing of the colonialist’s
non-functioning law is already common practice:-
> New York Times report
> …
> In Diepsloot, people usually bear their losses in silence,
> their misfortune unreported and their offenders unknown. If
> a suspect is identified, victims usually inform quasi-legal
> vigilante groups or hire their own thugs to recover
> their property.
—————-
Hey Prof: having fun in France, summer weather great? You are missed. Time to play is good for ya, however, and meanwhile in SA….
cheers
Kate wrote:-
” The Director of Legal Services says that ‘the firm would have been able to use confidential information it was privy to in litigation against the municipality’. This accusation cannot simply be taken at face value. …”
—– Indeed
AFAIK, local councils are governed by a whole bunch of statutes,
and their decisions are to be arrived at in open/publicly-recorded
meetings. Hiding behind the corporate veil does NOT apply !
Apparently a BIG section of the SA-law-industry has got the wrong
idea of what it’s about.
————————-
I’m hoping to get an answer to this over-arching question:
IF there was a rule against law industry entities simultaneously
representing FOR and AGAINST a party — conflict of interest,
AND
an acceptance that local authorities [democratically & transparently]
represent the interest of their [paying] residents,
would it be accepted [in a high enough Court. which doesn't just
act like a dumb rule-clerk] that since the ‘conflict of interest principle’
does not apply to a L.A. , the ‘rule’ does not apply ?
And in general, to what level of Court [if any] must litigation rise
[in SA} for the PURPOSE of a rule/principle to determine its applicability ?
== TIA.
@ AliBama
Thank you for the compliment and the offer extended.
Unfortunately, I am not an attorney so cannot assist you with your appeal. I’m afraid I’m still merely a student (albeit a rather mature one) and still have some way to go before I complete my LLB!!
Perhaps someone else on this site can take you up on your offer. Good luck with it!!
Prof, the issue of conflict of interest is really important for it is meant to protect. However, at times iis used opportunisitically.
Clearly, a fudiciary, agent etc can not represent opposing parties in the same issue. Whose interest will the agent serve? However, the agent can and often is allowed by law to represent both parties on matters that are unrelated. Now it is important to know if the law firm represented the City and the People in the same dispute.
What the City did is no different to what SA banks do. Major law firms are at the mercy of the banks. So banks do will remove them from their panels should the law firm represent an opposing party to a bank even on unrelated matter. The law firms have learned to know where their bread is buttered.
Whilst the banks act this way as clients of law firms, it is interesting to see how the banks reverse their act towards their clients.
Banks worldover have, through being oligopolies, managed to put themselves in positions of conflict of interest at times to the difficult to prove detriment of clients and easy to prove benefit of banks. The banks can even contract out of their fiduciary duties. The courts both in England and Australia now recognise the exclusion of fiduciary duties and conflicts of interest by banks so long as banks have chinese walls (which are a searve) as means to manage such conflicts.
So ultimately, justice is for those with the money. So if law firms know that their business depends on the State and banks, rest assured the law firms will continue to act in their business interest. That is the real world.
Squatters are effectively stealing land. Stealing is wrong. The End.
Samantha, sorry to pick up so belatedly on the point which you raised with the Professor. And I am equally sorry if my present post goes solely to trying to resurrect a dead fish. But mabe you will be kind enough to indulge.
I think that the extract to which the Professor refers indicates a powerful likelihood of a clear connection between the city’s election to terminate the mandate on the one hand, and Smith Tabata’s representaion of the shack dwellers on the other.
I think you are right insofar as some of the view that there exists a connection is premised on assumption. But as I am sure you well know, when it comes to proving things, lawyers are accustomed to dealing with probabilities. And I think, with respect, that the probabilities with which we are confronted heavily favour the Professor’s view. And I base my opinion on two factors.
For a start, the passage in question reflects the following content: after mentioning that it had become aware of the firms litigation against the city, the city said it is ‘ therefore terminating its mandate with your firm’. Now this fact, of itself, denotes a causal linkage between some conduct by the firm on the one hand, and the termination of the mandate on the other.
The second factor favouring the Professor’s view is the time frame involved here. The hyperlink reflected in the Professor’s piece indicates that the shack dwellers launched their application in May 2009. We also know that they pursued the claim on an urgent basis. That indicates that very little time would have passed between the firm accepting the instruction and the bringing of the claim. Now the extract in question indicates that the mandate was terminated on 18 June 2009. So we are speaking of a few weeks between suit and termination.
So with respect, the Professor’s view that there was a causal relation between representation and termination seems very tenable. So much so that in the absence of any contrary material, I would accept the Professor’s view on the probablities.
@ Leigh,
Thank you for your usual brand of careful and considered argument in regard to my post. I do so enjoy your posts on this site as you seldom become embroiled in the more “emotional” responses and always reply based on logic and reasoning.
While I cannot disagree with your assessment and the linking of probabilities to form a cohesive argument, my initial post merely reflected the one-sided nature of this discourse. At no stage do either the authors of the quoted article, nor the Professor, offer the City’s response to these allegations. There is no reference whatsoever in the article to any attempt made by the authors to address the issue with City. The entire article is premised on circumstantial (albeit strong) evidence that supports their supposition.
I will certainly concede that the likelihood of the link between the action by the firm and the letter from the City appears to be connected. However, this has not, as yet been verified by any of the parties concerned.
Samantha, thanks for the generous compliments. I’m not sure I deserve them although I’m quite certain that you would.
As regards the further content of your latest post, I don’t think we disagree about anything. That is, we agree that there is something of a case to be made out as to the Professor’s stance. But it is all circumstantial as you say. And further, no party in a priveleged position has called into question the assessment made in the article. And I agree that this makes for an element of doubt.
Stricly speaking the firm should not have acted for both parties in a matter where they would be privy to privileged information and use it against the City. Is that not one of the reasons we have this “conflict of interests” thingie? I also do not believe that ‘chinese walls” are as effective as they may be said to be. That being said, the City has acted in a grossly disappointing manner. They should have asked that their attorneys inform them, in furure, before acting against them. Maybe they should try to settle matters out of court if such a situation arises again. If such settlement fails then both parties should be referred to alternate firms and their fils handed over for that particular matter. The City should show that it is entirely committed to equal protection of the law and access to justice.
The fact that the banks do the same thing might show that it is not simply that the DA is evil but that they are doing that which is commonplace in the private sector.
i have been trying for days to get a firm to represent my company angainst one of the major banks.no luck!!!
could someone recommend one for me please???
I am in conflict with a finance provider who is funded by all of the banks.
The finance provider is resorting to perjury on high court documents, but will probably win this seriously unequal battle because no attorney will act for me – apparently I’m not poor enough for probono assistance, none of the financial ombudsmen want to know about this, and “conflict of interest” comes to the fore with every enquiry I make. I doubt very much that I am the only one to be victimised by this financial monster, and would be glad to hear any ideas on how to retaliate, as I stand to lose everything if this battle can’t be won.