Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.
Last week a full bench of the High Court dismissed former President Jacob Zuma’s attempt to appeal their ruling that he was not entitled to receive state funding for his criminal defence. The court ordered Zuma to repay more than R16 million with which tax payers have funded his attempts to avoid facing trial on corruption charges. When you have R16 million at your disposal, your lawyers can provide you with the kind of muscular legal assistance that ordinary criminal accused persons can only dream of. Money – as is so often the case – makes all the difference.
A year ago, I was told that I would be sued for defamation if I did not delete an article I had published on my Blog. I ignored the threat which – as it turns out – was just as empty as I had anticipated. (In my estimation, only 1 in 50 public figures who threaten to sue for defamation ever do so.) At the time, several people kindly volunteered to provide me with free legal assistance if I got sued. But if I had been sued and had had no assistance, I might well not have been able to afford the legal cost involved.
For most South Africans the situation is far worse. The vast majority of South Africans have far fewer resources than I do, which means that most potential litigants could not afford to get involved in civil litigation and would not be able to pay a private lawyer from their own pocket to help defend them if they were ever charged with a criminal offence.
The situation is very different for the rich and for those who can rely on taxpayers to provide unlimited funds for civil litigation or to defend themselves when they are charged with a criminal offence.
If Steinhoff’s Markus Jooste is ever charged with fraud, he will probably have the best defence team that money can buy. In such a case, his legal team is likely to use every legal loophole and every technical legal argument to prevent the case from ever going to court. Seemingly shifty characters are usually very keen to avoid the inside of a court room.
As an aside, it is not likely that Jooste will be charged in the near future. This is because the Hawks would first have to do a thorough, technically competent, investigation to build a case that could be successfully prosecuted by the National Prosecuting Authority (NPA). But the Hawks was deliberately hollowed out to protect those in the public and private sector unlawfully benefitting from corruption.
While there are some good people left in the Hawks, most skilled investigators had been forced out of the organisation, and it may take years to rebuild its capacity – which was not brilliant to start with. As far as I understand, at the moment the Hawks simply does not have the skills to build a winnable case against somebody like Markus Jooste.
Before the court turned off the money tap, former President Jacob Zuma himself benefitted handsomely from being provided almost unlimited financial assistance to fund his legal defence against the corruption, fraud and money laundering charges. (This was paid for by every South African through their VAT and other tax contributions.) Even a moderately wealthy person would not have been able to finance the kind of “Stalingrad” defence employed by Zuma and his lawyers.
Moreover, even where a person may somehow scrape together R16 million to keep them out of court (an obscene amount of money), most sane people spending their own money would not fund court action and appeals that they know, or reasonably ought to have known, have absolutely no prospect of success.
But perhaps because Zuma was spending the money of the people he was said to be serving, and because – as a politician – there is nothing more important for him than not to have to answer for his alleged offences in court, Zuma and his lawyers often pursued hopeless technical legal points to try and drag things out, which allowed him to evade prosecution for the past 14 years.
What is to be done about the inequality of legal representation built into the criminal justice system, and about the fact that most South Africans who might need the legal system to enforce their constitutional or other legal rights, in effect, has no access to justice as they cannot afford the legal fees this would entail? I am not sure I have all the answers. I am not even sure there are easy answers that would fix the problem completely. But let me highlight a few possible things that could be done.
The most obvious and radical solution would be to view and treat lawyers more like we view and treat journalists; expecting them to work for free (perhaps in return for a small subsidy from the state) or for a very moderate flat fee.
Some lawyers will argue that this will decimate the legal profession, will reduce the quality of legal services offered to clients (at least to those who can pay), and will eventually lead to a lowering of the status and quality of the judiciary (who are appointed from among the members of the legal profession) – with devastating consequences for South Africa’s democracy. In the absence of a radical overhaul of South Africa’s economic system (probably not feasible without a complete transformation of the world economic order), this may not be entirely incorrect.
Improving the quality of legal aid services, and expanding its reach to allow a far wider range of people to benefit from legal aid (for both civil and criminal cases) may improve access to justice but would do very little to undo the system in which the rich and publicly funded get the best legal services, while those who can’t pay get, at best, the bare minimum. (Also, good luck to the person charged with fixing and improving the legal aids system which is not currently running optimally.)
A third possibility is to change the civil and criminal procedure rules to try and reduce the often-overbearing role that well-funded lawyers are permitted to play when they go to battle for their rich (or taxpayer funded) clients. Here the Zondo Commission of Inquiry may be pointing us in the right direction.
The Zondo Commission (unlike some other Commissions) has so far avoided falling in the trap of turning an essentially inquisitorial fact-finding process into a formalistic accusatorial battle between well-funded lawyers. The aim is to find out what actually happened in a manner that treats everyone in a substantially fair manner. The rules of the Commission facilitate this by reducing the role of lawyers who represent various implicated of affected parties. The hearings are no longer structured as a battle between lawyers, guided by over-complicated technical rules that assume all relevant parties have equal access to equally competent and well-funded lawyers, and more of a genuine attempt to seek out the facts.
Perhaps it is time to consider a move away from the purely accusatorial legal system towards a hybrid accusatorial-inquisitorial system where the rules won’t permit lawyers to use purely technical arguments that have little bearing on the actual, substantive, fairness of the hearing to protect their clients.
But even without any changes to legal procedures, the courts could play a role to minimise the unfairness that arises when one side in a court battle has unlimited funds and the other side does not. The courts could do so to advance the elusive goal of substantive equality in civil and criminal litigation.
So, where a party’s lawyers raise spurious legal points, or appeal a judgment that is clearly correct and will never be overturned on appeal, courts may think of granting a personal cost order against the litigant using the procedural rules not to seek a just and fair outcome, but to delay the proceedings or the implementation of the court order.
Take former President Zuma and his lawyers, who is currently in a stand-off with the Zondo Commission as Zuma is not keen to testify before the Commission to provide his side of the story on the various matters on which he has been implicated. If Zuma refuses to testify and approaches a court to challenge what would appear to be a perfectly and obviously valid subpoena, it might be time for that court to grant a personal cost order against Zuma for abusing the legal process in an attempt to undermine the Commission.
Zuma has already been ordered (rather harshly, I thought) to personally pay some of the cost incurred when he challenged the lawfulness of the remedial action imposed by former Public Protector, Thuli Madonsela, in her State Capture report. (He is appealing this judgment.) Threat of another personal cost order might make him think twice before going to court merely to delay the inevitable testimony he would have to give to the Zondo Commission.
But whatever happens, the inherent unfairness currently built into the legal system will remain. Unless something drastic is done, those people with pots of money to pay their lawyers (including large corporations) will continue to have an unfair advantage in using the law to try and seek justice.BACK TO TOP