The Rule of Law and “conflicts of interests”

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.

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