Opinionista Omphemetse S Sibanda 23 November 2020

Jacob Zuma’s defence team has crossed the legal Rubicon

The performance of some legal practitioners at the Zondo commission raises questions as to whether the legal profession is anything like it used to be. There is, on the face of the developments, some possible complicity by legal practitioners to undercut the commission.

When naïve, excited and ready-to-learn students of law enter lecture halls, they come with the wrong perception of being one foot into the profession that captures headlines – grandiose advocates and attorneys who can outperform any other in salacious and sensational cases.

They will know about things like court decorum and the ethics of legal practice. But some will probably eventually show that they learnt little after their four years of lecture halls at our law faculties, in part thanks to the behaviour and performance of witnesses and legal practitioners (attorneys and advocates) at the Zondo Commission of Inquiry.

So many times our justice system has proven to falter, sometimes at the hands of those with the professional, ethical, moral, constitutional and legal obligation to ensure that it never falters.

For example, the performance of some witnesses, including those hostile to the commission like Dudu Myeni, whose time at the commission set a tone for others to think that there is a legal principle called “blanket refusal” to answer any questions from the commission.

And the unceremonious walking away from the sitting of the commission by former president Jacob Zuma would be another challenge for the commission, even reported by international media outlets such as the Washington Post and Al Jazeera to show the inherent and continuing failure in South Africa to recognise and acknowledge the criticality of access to justice for not just some, but for all.  

The country has once more been proven to be something of a banana republic when it comes to a serious legal matter: “It is a pity that he has elected to leave without asking for permission,” Judge Raymond Zondo said in response to Zuma’s not returning to the commission hearing despite appearing under summons. “This is a serious matter,” said the visibly irate Judge Zondo.

Zondo has now laid a criminal charge against Zuma for leaving the commission without permission, contrary to section 6(1) of the Commissions Act, which makes it an offence. 

Politicians continue to assail judicial integrity and competence when judges do not rule their way. The continuing narrative now is that the Zondo commission is a creature of political expediency. The argument, made prominent by Advocate Muzi Sikhakhane representing Zuma at the failed attempt to disqualify the deputy chief justice, is that the Zondo commission has been weaponised by people with political interests and thus lacking credibility as a forum for accountability for corrupt activities (See here).

Recusal, friendship and impartiality: Interesting times indeed at the Zondo Commission

Some of the attacks may be without proper context, but they have inflicted or will inflict lasting damage on our criminal justice system and they also undermine public confidence in our legal system. In fact, the measure for the level of confidence in our legal system will be the ranking of South Africa in the next Corruption Perception Index (CPI) of Transparency International. The CPI also considers critical respect for the rule of law, and respect for institutions such as the Zondo commission constituted to establish accountability for corruption and other corrupt activities.

The courts, the Legal Practice Council (LPC) and Bar associations have in place codes of conduct to regulate the conduct of legal practitioners, magistrates and judges alike. However, it would seem that some of these restrictions are not worth the paper on which they are written.

One of the ideals of the legal profession includes a commitment to providing legal representation in a manner that does not undermine the justice system of the country and to afford courts or related tribunals a certain degree of decorum. As a student of law, I was taught that this is the very essence of South African law, in the absence of which South Africa would deserve titles such as “banana republic”.

Yet, the performance of some legal practitioners at the Zondo commission raises questions as to whether the legal profession is anything like it used to be. There is, on the face of the developments at the commission, some possible complicity by legal practitioners to undercut it.

Certainly, our judges are not holy cows and they may have their blind spots that we should not readily ignore. Thus, legitimate criticism of the judges must be allowed. To this end, I would not rush to rubbish the recent development that the Zuma camp is to report Justice Zondo to the Judicial Service Commission (JSC).

The JSC is the one forum readily available to ensure that judges embrace accountability and are indeed accountable. However, the JSC must not be used to tear down the integrity of Zondo simply because the outcome of the recusal case was other than that which was sought. The irretrievable damage to our legal system that can be done by judge-bashing is now spearheaded by legal practitioners.

Similarly, those representing their clients at the Zondo commission must do their part to help build trust and confidence in our justice system by reminding their clients that it all comes down to the rule of law, and that the Zondo commission is there to uphold it. Simply put, for example, Sikhakhane and other legal practitioners appearing before the Zondo commission (or before whomever – should Zondo be removed as the chair) must through their words and acts demonstrate leadership in a manner that their clients will have respect for the justice system.

Regulation 8(1) of the regulations of the Commission of Inquiry into State Capture promulgated by former president Zuma states that “no person appearing before the commission may refuse to answer any question on any grounds other than that the information is privileged”.

Generally, one would expect legal practitioners to help their clients at the commission abide by this regulation. Sikhakhane, during the recusal proceedings, unequivocally said that should Justice Zondo not recuse himself, he would advise Zuma to not answer questions. Such advice would on the face of it be an incitement to defy the commission despite the clear provisions of regulation 8(1).

The LPC “Code of Conduct for All Legal Practitioners, Candidate Legal Practitioners and Juristic Entities” obliges legal practitioners not only to “treat the interests of their clients as paramount”, but also in doing so to among other things discharge their duty to the court; to the interests of justice; to the observance of the law; to the maintenance of the ethical standards prescribed by the LPC code; and to refrain from doing anything which could or might bring the legal profession into disrepute.

In brief, Sikhakhane’s primary duty is loyalty to his client, Zuma, but tempered with candour to the commission. Of course, some legal practitioners’ misconduct may be ubiquitous, including those that are relatively benign, and those that are grave enough for the LPC to spring into action.

The next time someone screams about judicial misconduct and/or political activism by the Zondo commission, it may be the right moment to ask them if they conducted themselves in a manner befitting legal practitioners.

South African legal practitioners must be reminded that they are agents of the administration of justice and constitute the judiciary, together with judges, no matter how senior or celebrated they are. That said, whether it is about taking Judge Zondo to the JSC, or reporting Sikhakhane to the LPC, what must not be lost in the process is that justice must be seen to be done for all – and not for some.

“Loyalty and zealous representation are paramount values within the Bar. These values presume both a close relationship between lawyer and client and total openness in the lawyer’s dealings with clients. Real life is not so simple,” wrote Lisa G Lerman in her pithy article Lying to Clients, published in the 1990 issue of the University of Pennsylvania Law Review.

In the final analysis, there will still be those who will argue that Zuma’s legal representative was not condescending to the commission, but that it was simply that of much sought after competent representation of a client – with the requisite legal knowledge, skill, and thoroughness all the way to the review of the Zondo recusal decision, and reporting Zondo to the JSC.

Others may take the position that Zuma is being lied to because the recusal will and was never to succeed, including the review, given the exposition of the legal principles and facts relied upon in his favour (see here).

Zuma must be treated like any other citizen despite his Stalingrad legal tactics

Zuma’s legal representation has crossed the Rubicon, and perhaps his legal team cannot be blamed for taking an instruction to take the matter on review and for approaching the JSC. DM

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All Comments 9

  • “The JSC is the one forum readily available to ensure that judges embrace accountability and are indeed accountable.” If only that statement were accurate!

  • The professor’s reflections are very pertinent and appropriate. However, the concluding sentence with “… perhaps his legal team cannot be blamed for taking instruction …” is baffling to say the least for a layperson. Since when is it in the interest of the counsel or his/her client to be lied too about the ‘prospect of success’ with a particular process…which has failed thus far and so many times before ? Is that not a deliberate subversion of a judicial process? Even a layperson like myself could see through the convoluted legal diatribe and posturing the counsel was engaged in. Just examine his body language and expression. Not unlike the Pompeo claim recently that there will be a smooth transition of power ….to a second term of office for Trump – the latter part of the statement belied by the supercilious grin that surfaced on the face !

    • Us whiteys just don’t get it. Democracy and the rule of law is just window dressing and tools for the tribal fight. Ergo the public support campaigns. In paperless societies anything that is said as declaration becomes law. Law is in any case a cerebral concept upheld only by common agreement. Zuma is a very clever man, yet he fights the way he knows how to fight – from a completely self-centred perspective. He is no public spirited person. For that you have to see yourself in relation to all others around you. He simply does not have that ability. The explanation is never the solution. He is a menace in many more ways than one, especially to the common agreement (implying respect for it) mentioned earlier. This needs to be ended. Quickly!

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