Opinionista John Clarke 15 September 2014

Yes ‘the law is an ass’, but ‘the truth will (up)set you free’

During the Opposition to Urban Tolling Alliance’s interaction with the Gauteng e-toll review panel, OUTA was asked how determined it was to have the courts vindicate its conviction the e-tolling decision was unlawful. Adrian D’Oliviera, a junior counsel advocate who has represented OUTA in litigation, replied, “Litigation is often unsatisfactory. It is heavy on the resources of time and money, and so often leaves the litigants feeling that justice has not been attained”. It drew warm appreciation from members of the panel. This is my experience as a social worker on the limitations of the law in conflict resolution, and what civil society could do to change the game.

In Charles Dickens’ classic story Oliver Twist, Mr Bumble and his wife run the poor house. Mrs Bumble dominates their relationship. Their flawed characters give texture to the story to enable Dickens to introduce ‘the law’ as one of the cast of characters. Mr Bumble is told that the law supposes that his wife is subject to his direction. “If the law supposes that… the law is an ass – an idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience – by experience.”

Lawyers are professionally obliged to represent the interests of whatever dog comes barking regardless of where the dog is located in the hierarchy of power, wealth and status. Social workers are professionally obliged to challenge social injustice always with the interests of the most vulnerable and disadvantaged parties in mind. The pay isn’t good, but the ‘fringe benefits’ are where the rewards lie.  From the fringes and margins of society we get to hear people speaking truth from the outside looking in. Their experience opens our eyes so we can better see the contradictions in the words spinning from the rationalisations and justifications of powerful people inside who don’t want to look out, because, with rare exceptions, their focus is to get as close as possible to the centres of power, control and privilege.

Over the past nine years circumstances have thrust me into playing a mitigation role in legal battles where vulnerable and disadvantaged communities are at odds with government. Malcolm Gladwell terms them “asymmetrical conflicts”, David vs Goliath type conflicts in which might does not equate to right (but the mighty of course believe it does). Because the interests of so many more people are involved, the stakes are much higher, the ramifications more serious, the problems more complex and the costs more unpayable. I have learned the underdog will prevail over the top dog not by trying to match their strengths, but by finding their internal contradictions and false assumptions so as to slay the giant with its own sword.

Alongside the adversaries are their respective lawyers, tasked to represent the opposing interests by making the best possible case in terms of prevailing law, so as to try and gain ascendancy over the case presented by the other side. If the often arcane abstractions of ‘the law’ cannot accommodate or express the real interests of real people, these will fall by the wayside. But the system will still grind along, making business for itself out of whatever it can.

In Dickens’ later novel Bleak House, ‘the law’ becomes a more pronounced character.  The respectable attorney Mr Vholes is introduced as an agent for the cause of law, which is “to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble”.

Nevertheless, I concede that notwithstanding the hefty price, the option of suiting up for ‘lawfare’ is infinitely better and much less costly than arming for warfare. Is that reason enough to cease grumbling?

No, because the key ingredient that will ultimately determine the outcome is essentially the same in both approaches to resolving conflict ‘ the truth.  Although it is not always the case, the party with the least truth (and therefore the weakest case) will tend to have worked out how to gain access to superior financial and legal resources for a “litigation by attrition’ strategy.  It is said that in warfare truth becomes the first casualty. In ‘lawfare’ the truth become the prize hostage held in captivity by ‘the law’ whenever the more powerful (and least truthful) adversary has the deeper pockets.

Consider two anticlimactic media stories in two weeks:

A trial within a trial. Sanral CEO Nazir Alli loses his application to keep court documents confidential relating to an unsolicited bid by a private construction consortium to toll Western Cape freeways to keep them in business.  However we still have to wait for the enclosing court case to start (at a yet to be determined date in the future) before the public can know what Alli didn’t want us to know. Why? The ‘implied undertaking rule’. The law regards evidence to only exist once it has been presented in argument for or against the actual case that gave rise to the discovery of the information.

A trail in quest of a trial. After an eternity of effort the Democractic Alliance finally gets the Zuma spy-tapes out of the National Prosecuting Authority, believing them to contain a trail of evidence of wrongdoing by President Jacob Zuma. But the same ‘implied undertaking rule’ means the DA must keep them under wraps until a court convenes to hear the it’s application for the President to be prosecuted.

Will the unbarred information confirm or discount the suspicion that Alli’s need for confidentiality has nothing to do with protecting the commercial interests of the bid companies, but to cover up false depositions he has lodged?

Will the evidence on the tapes support a charge that the President has committed criminal offences that could see him sent for rehabilitation under the care of the department of correctional services? Whatever truth reposes on the spy-tapes or in the documents Alli wanted to keep secret will only be known once the respective court cases begin.  Even so, if past performance is a reliable indicator, if either Zuma or Alli lose in the high court, we can be sure they will seek leave to appeal. ‘We the people’ will not know whose version of the truth is THE truth until the Constitutional Court has certified one or the other – or perhaps neither.  It could take years. That is no way to run a country.

However there is the option of an application being made in the public interest to the Supreme Court of Appeal for a ruling to have the contents disclosed before the cases resume. Again the judicial process is simply not a level playing field, but with respect to bones we need to pick with Zuma and Alli it should be pursued. It will send a signal to the executive that their litigation by attrition tactics must and will be countered. Even if their respective legal advisors may not believe the biblical teaching that the truth will set you free, if they are pragmatists they should at least recognise that the longer its emergence is delayed so does its potency ferment as a force to topple the mighty from their thrones. DM

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