When legal practitioners behave badly, they undermine the legitimacy and effectiveness of the profession
A judgment that holds a lawyer in contempt of court has arrived at a time when one has to ask whether the legal profession is facing a crisis of legitimacy, aggravated by the unethical behaviour of a small number of members of the profession.
It is not that unusual to come across a high court judgment in which a judge expresses disappointment about the tardy actions of one of the lawyers or of one of the legal teams in a matter. But it is not often that one comes across a judgment in which a lawyer is held in contempt of court for failing to obey a court order, and “sentenced” to pay punitive costs in his personal capacity. It is, regrettably, also uncommon to encounter a judgment in which a judge takes such a decisive stand against the unethical, contemptuous, or dishonest behaviour of legal practitioners.
It was therefore both depressing and heartening to read the judgment of acting judge Warren Shapiro in the case of Grundler NO and Another v Zulu and Others in which the high court held advocate Lee Zulu in contempt of court for refusing to provide the applicants with copies of the court papers he submitted on behalf of his clients in a previous application — despite a court order to do so.
The trouble started when Mr Zulu, representing certain members of a dysfunctional body corporate, applied for, and was granted, an order to place the body corporate under the administration of a Board of Trustees. Mr Zulu brought this application ex parte, inexplicably failing to give notice of the application to Mr Grundler — the court-appointed administrator of the body corporate — and the body corporate, who both obviously had a direct and substantial interest in the matter.
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Suspecting that Mr Zulu may have failed to make a full disclosure of all the material facts in his application, the applicants asked Mr Zulu to provide them with copies of the court papers he prepared for the application, which he failed to provide — even after a court ordered him to do so. (Whether he did so because the court papers revealed dishonesty on his part, is impossible to say.) As a result, Mr Grundler and the body corporate approached the court to declare Mr Zulu in contempt of court, and asked the court to sanction him by sending him to prison, alternatively, to order him to pay a fine.
The court took a dim view of the vague and insubstantial “justifications” offered by Mr Zulu, especially his claim that he could not provide copies of the papers as he had a duty to uphold “confidentiality” with the body corporate. The court dismissed the latter argument, calling it “nonsense”, and described Mr Zulu’s behaviour as “unprofessional, obstructive, and dilatory and certainly […] not the behaviour one would expect from a legal practitioner”.
The judgment arrives at a time when one has to ask whether the legal profession is not facing a crisis of legitimacy, made worse by the unethical and even criminal behaviour of a small but not entirely insignificant, number of members of the profession. Here I am not only talking about the political theatrics, bullying, and amateurish bullshitting, we have come to expect from some lawyers representing high-profile political (or politically connected) individuals and other wealthy clients. I am also referring to the slew of recent news reports containing accusations of lawyers and judges behaving badly. Only in the last week, at least four such matters came to public attention.
- Last week it emerged that a newly appointed judge of the Free State high court had been summonsed to appear in the Kroonstad Specialised Commercial Crime Court on charges of theft, money laundering and contempt of court, stemming from the judges conduct while still practicing as an attorney.
- It was also reported over the weekend that the Eastern Cape judge-president Selby Mbenenge is facing an investigation by the Judicial Conduct Committee after claims of sexual harassment levelled against him by a judge’s clerk based in the Makhanda high court.
- On Tuesday, the Judicial Conduct Tribunal started its impeachment hearing into judge Tintswalo Makhubele, for taking up an appointment as acting chairperson of Prasa, after the JSC had selected her for appointment as a judge, and for allegedly using this position at Prasa to advance the interests of a company whose contracts with Prasa have been set aside on the grounds of corruption linked to state capture.
- And on Wednesday Daily Maverick reported that evidence has emerged that advocate Dawie Joubert, a senior counsel and member of the Bar’s examination board, has been involved in an attempt to frame conservationist Fred Daniel. The report also claimed that a senior public prosecutor, named as Ms Ansie Venter from Middleburg, has also allegedly been implicated in the matter.
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It is no wonder, then, that the court complained in the Grundler judgment, about “a rising trend in the legal profession of practitioners demonstrating disrespect (if not outright contempt) for courts and the judiciary”. It is also heartening to read the judge’s timely reminder to all legal practitioners that “Officers of this Court must be held to a higher standard of conduct than lay people”, and that legal practitioners “do not own a duty only to their clients, they also owe a duty to the courts and the legal system”.
“One does not need to look far to find examples of this sort of behaviour, from the ranks of senior counsel to the most junior of candidate attorneys. It manifests not only in how practitioners interact with opponents and judges in and out of court but also in the launching of prima facie spurious applications, lacking in factual or legal foundation, that are designed to “snatch bargains”, achieve ulterior objectives, delay and/or obstruct. It is a “win at all costs” attitude that does a disservice to the profession and to the country and sets an appalling example to the public at large. It ignores not only the oath that all lawyers take upon their admission but also the distinction between the duty that practitioners owe to their clients and the separate duty that they owe to the Court.”
The court further noted that in this case Mr Zulu had “failed in this most basic duty” by not distinguishing “between his clients’ interests and his own professional and ethical obligations”. He also failed to provide any substantive explanation for his failure to obey a court order, and was thus guilty of contempt of court. Consequently, the judge referred Mr Zulu to the Legal Practice Council “so that his conduct as a legal practitioner can be investigated and, if required, sanctioned”.
But because the Legal Practice Council has, in some instances, declined to sanction legal practitioners who flout the code of ethics, and has generally been slow to investigate, and — if required — to act, against legal practitioners implicated in unethical or criminal behaviour, it is also significant that the court endorsed the view that there “must be a serious consequence” for the kind of behaviour Mr Zulu made himself guilty of.
Notably, the court seriously considered imposing a sentence of direct imprisonment without the option of a fine on Mr Zulu as punishment for his contempt of court (as the Constitutional Court did in the contempt of court case of Mr Jacob Zuma). The court approvingly quoted justice Edwin Cameron’s Supreme Court of Appeal judgment in Fakie NO v CCII Systems (Pty) Ltd, where it was noted that the reason why courts were permitted to commit recalcitrant litigants to prison when they make themselves guilty of contempt of court, was not only to ensure court orders were enforced but also, and more importantly to protect the “very effectiveness and legitimacy of the legal system”.
“That, in turn, means that the Court called upon to commit such a litigant for his or her contempt is not only dealing with the individual interest of the frustrated successful litigant but also, as importantly, acting as guardian of the public interest.”
The court in Grundler nevertheless decided not to send Mr Zulu to prison, because “justice must be tempered with a modicum of mercy”, and because there was a possibility that, “given the chance”, Mr Zulu might “react quite differently, and would understand where his obligations lie and the seriousness of failing to comply with orders of court” (the latter aspect distinguishes this case from that of Mr Zuma).
The court nevertheless held that it was important to impose a serious sanction on Mr Zulu, and ordered him “in his personal capacity to pay the costs of both the main application and the application for contempt and all reserved costs on the scale as between attorney and client”.
This case was somewhat unique because Mr Zulu ignored a court order directed at him personally, so there was no doubt that he was responsible for the misconduct. But it is not always that clear to what extent the misconduct can exclusively be laid at the door of the legal practitioner, instead of their clients, especially in cases where the legal practitioner becomes too closely identified with their client and their client’s political or other causes.
Moreover, courts are usually reluctant to grant personal cost orders against legal practitioners, because they worry that this may have a chilling effect on the ability or willingness of lawyers to represent the interests of their clients robustly and efficiently. While this worry is real, it may be time — given the scale of the problem — for our courts to use personal cost orders against legal representatives who ignore their professional and ethical obligations and the duty they owe to the courts and the legal system, and shamelessly abuse the legal process, often at great financial benefit to themselves. DM
Pierre de Vos is the Claude Leon Foundation Chair in Constitutional Governance and Head: Department of Public Law, at UCT.