It was pleasing to me as an ordinary citizen to read in November 2019 the writing by Peter Hain, who said, “While the NPA begins rolling out prosecutions over State Capture, it is worth looking at ways to recover stolen loot to help plug the huge gap in public finances created by corruption”.
The UN General Assembly’s Transforming our world: the 2030 Agenda for Sustainable Development of 2015 requires states to “substantially reduce corruption and bribery in all their forms” by 2030. Let me state from the outset that the UN here espouses what may be regarded as a human rights-based approach to corruption, which as noted by Cecily Rose has its limitations [See Rose, The Limitations of a Human Rights Approach to Corruption, 65 International and Comparative Law Quarterly (2016) 405, at 417].
South Africa is a classic example of how corruption and other corrupt activities impede the achievement of human development and the promotion of human rights in general. Such corrupt activities are at the centre of the consistent lower ranking of South Africa on Transparency International’s Corruption Perceptions Index. If perpetrators of corruption are not held accountable and continue to act with impunity, South Africa will soon be joining the ranks of countries like Somalia and Syria with the worst human rights record.
In addition to the view by Hain, legal practitioners must also be held accountable for their corruption and corrupt activities in the same way we need to have global banks, and corporates being held accountable. First, just like the judiciary, which must be held accountable, legal practitioners play a major role in society. Second, as a society, we expect legal practitioners to be immune to corruption. Third, reports over the years, including revelations relating to State Capture, suggests that legal practice corruption and money-laundering may be a significant problem in South Africa. Legal practice may wittingly or unwittingly have contributed to State Capture. Fourth, corruption takes many forms and nuances within a legal practice. Client-lawyer privilege can be abused by legal practitioners as a cloak to perpetrate corruption. So too are trust accounts used by legal practitioners to launder corruptly received money.
As noted by Hamman and Koen [Cave Pecuniam: Lawyers as Launderers 2012 Potchefstroom Electronic Law Journal 69], “the attorney’s trust account, which was conceived as the beacon of unblemished lawyering integrity, becomes the vehicle of squalid criminality”. Legal practitioners acting as intermediaries in government business provide a fertile ground for corruption. Outsourcing of legal briefs makes it easy for corrupt practices to fester. Generally, the receiving of gifts, palm greasing, the granting of favours, and other actions by or involving legal practitioners can create the appearance of corruption.
The need for accountability, a commitment to fighting corruption and integrity of the legal practise in South Africa can never be over-emphasised. The four core principles that guide legal practice and accountability are: professional integrity, independence, client-lawyer confidentiality and avoidance of conflicts of interest. Legal practitioners should know and/or ought to know that corruption and related activities risk undermining the integrity of the legal profession.
Yet there is no shortage of reports and many instances of corruption and/or related acts of criminality and misconduct by legal practitioners. Consider, for example, media headlines such as: “State Capture: Top law firm linked to Transnet ‘bribery’ scandal”. Some legal practitioners and legal scholars may want to insist that criminal wrongdoings in their profession are not rife. The irrefutable reality is that what was once called a noble profession is no longer as innocent and noble as we would like it to be known for.
Indications are that the legal profession has lost some parts of its ethical and moral compass. The thinking is now prominently about financial gain and wealth. Law and justice are no longer a key consideration for some legal practitioners. Put simply, the articulation by legal practitioners of law, justice, due process, social justice, ethics, accountability and integrity of the legal practice is steadily diminishing.
A typical example is a case heard in the High Court in Grahamstown, that involved a claim by one Zama Mfengwana against the Road Accident Fund [See Mfengwana v Road Accident Fund (1753/2015)  ZAECGHC 159; 2017 (5) SA 445 (ECG) (15 December 2016)]. In this case, the contingency fee agreement between Mfengwana and the attorney was found to be unconscionable and abusive; an over-reaching agreement by the attorney. Reading the judgment and the learned judge’s observations on the agreement I was reminded of a quotation attributed to Henry Peter Brougham, an English politician who said that, “A lawyer is a learned gentleman who rescues your estate from your enemies and keeps it himself.”
In the Mfengwana v Road Accident Fund case, Judge Clive Plasket said: “ This is yet another case in which an attorney – an officer of the court who is supposed to act with integrity and comply with the highest ethical standards – is guilty of an attempt to grossly overreach his client or rapacious and unconscionable conduct. Unfortunately, in this jurisdiction, this is a problem that is all too common. That said, however, it seems to me that the problems in relation to contingency fee agreements that come to the attention of the courts are, in all likelihood, but the tip of the iceberg.”
Also important to note is that Plasket noted with concern the prevalence of corruption in the legal practice, and implored the Legal Practice Council (hereinafter LPC) to act accordingly. Having perused the contingency fee agreement, the judge said: “ This is all cause for grave concern and, if I am correct, a manifestation of endemic corruption embedded in the attorneys’ profession. For this reason, I intend requesting the Registrar of this court to deliver a copy of this judgment to the Cape Law Society so that it, as custodian of the ethical standards of the profession in the public interest, may consider ways and means of stopping the rot.
“It is the duty of the LPC in terms of section 5(b) of the Legal Practice Act, for instance, to ‘ensure that fees charged by legal practitioners for legal services rendered are reasonable and promote access to legal services, thereby enhancing access to justice.’ The LPC also has a duty in terms of section 5(g) of the Act to ‘determine, enhance and maintain appropriate standards of professional practice and ethical conduct of all legal practitioners and all candidate legal practitioners.’ ”
In her acceptance speech on 4 February 2018 as the new National Director of Public Prosecutions (NDPP), Shamila Batohi committed the NPA to ensuring accountability for corruption activities. She famously stated: “We in the NPA have important work to do, which includes devoting our efforts to holding accountable those who have corrupted our institutions, who have betrayed the public good and the values of our Constitution for private gain, especially those in the most privileged positions of government and corporate power.”
Noteworthy is that Batohi reminded members of the NPA that they are lawyers and that society has lost trust in lawyers, which needs to be restored. The speech was preceded by her media presentation on 1 February 2018 where she proclaimed the following famous warning:
“Perpetrators of corruption and crime within the state and private sector – regardless of who you are, how rich you are and what position you hold – your days of acting with impunity are numbered.”
The same hardline message against corruption was carried by President Cyril Ramaphosa in his 7 February 2019 State of the Nation Address. The president expressed excitement at the appointment of Batohi as the person who will, “lead the revival of the NPA and to strengthen our fight against crime and corruption”.
One hopes that 2020 will be the start of us seeing the fruits of having revived the NPA and having initiated the many commissions on corruption, maladministration and mismanagement. Institutions like the NPA must shift their gears from less talk and promises to action and consequences. A clear example must be set that we are a society and country committed to zero tolerance of corruption. Law firms and individual legal practitioners who are suspected of corruption must be investigated and prosecuted.
So far, the question relating to what point the revelations at the Zondo Commission should be followed by the NPA has not been fully addressed. But there is no such need because the institution of the commission did not suspend the mandate of the NPA. Furthermore, the prosecutorial activities of those appearing before the commission are not contingent on the outcomes and report of the NPA. The NPA still has its exclusive authority and prosecutorial independence.
The paucity of the clear and loud voice of our LPC and law societies against alleged corruption by law firms and legal practitioners is deafening. In my view, the LPC and the different law societies must play a visible role as the primary enforcers of integrity in the legal provision. These institutions must publicly condemn corruption by legal practitioners as an unforgivable act of misconduct that legal practitioners must be held accountable for.
The Legal Practice Act 14 of 2014 seeks among other things to, “ensure the accountability of the legal profession to the public”. Relating to processes of both the NPA and the LPC respectively, the allegations of corruption that lead to negative findings against law firms and legal practitioners must be met with appropriate sanctions, and remedies. For example, not only should a law firm be blacklisted for doing work with the government; individuals involved should carry the blacklisting no matter where they go. This would mean that a lawyer who leaves firm A for firm B under the cloud of corruption allegations will extend the blacklisting to firm B. The benefit of this approach is that individuals will not be able to cleanse their corruption shadow by joining new firms or opening new firms.
These two sentences from the preamble of the Code of Professional Ethics adopted by the American Bar Association in 1808, which I regard as resonating with our legal profession, should be restated by the LPC at every opportunity available:
“The future of our republic, to a great extent, depends upon our maintenance of justice pure and unsullied. It cannot be so maintained unless the conduct and motives of the members of our profession are such as to merit the approval of all just men.” DM
The Hindenburg had a smoking room.