Accountability for the exercise of power is central to the culture of justification that our Constitution sought to introduce into a country which had endured a history dominated by a culture of authority. Sadly, as documented by Judith February, the principle of accountability has generally been honoured in the breach.

Take the conduct of the President, who should set an example. Apart from one sweetheart interview during the ANC’s January meeting this year, he has not given one interview to the media in which the latter are able to ask him questions on behalf of an anxious public. In this context, Cyril Ramaphosa must rank as one of the most unaccountable leaders in a democratic country. When he announced measures, at long, long last, to deal with rolling blackouts, he did so without any questions being asked of him.

Had the press been invited to so ask or had he engaged in some interviews, questions could have been answered, such as why these proposals will be implemented timeously when the country waits for the social compact he promised within 100 days from his State of the Nation Address, or the reason for the lack of arrests of ringleaders of the July 2021 unrest, which he announced would take place. In a culture of authority, the President announces and the public’s role is simply to listen and never question.

As February has noted, the legal profession has followed this same approach. The Legal Practice Council (LPC) recently confirmed the legitimate concerns that had been expressed about its creation when an LPC disciplinary hearing found that there was no unprofessional conduct committed when a senior counsel told an opponent to “shut up”; this finding notwithstanding, the then Deputy Chief Justice issued a public statement to the contrary. In such a high-profile case, it was equally disturbing that a decision involving senior counsel was not made by senior practitioners with adequate forensic experience. A true disgrace!

Over the past few years, the conduct of some lawyers appearing in court has brought the very legitimacy of the legal system into disrepute either by the presentation of an argument that bore no relation to any justifiable point of law or by contemptuous conduct towards opposing parties, witnesses and even presiding judges. The recent inexplicable decision of the LPC and the supine approach by some courts contribute to this growing practice.

Fiduciary obligation

Legal practitioners are officers of the court. They owe a fiduciary obligation to the legal system. While they also owe their clients a duty to represent their interests — if necessary, robustly and exhaustively — misrepresenting evidence, raising points that have no possible basis in law save for trying to postpone the day of final judgment and being thuggishly disrespectful to the court should be visited with adverse consequences.

Courts are understandably reluctant to impose punitive costs orders on legal representatives, but there have clearly been cases in recent times where this course of action has been indicated.

This lack of accountability that has so eroded the promise of a culture of justification seemed to be all-pervasive when suddenly the Judicial Service Commission (JSC) awoke from its regrettable slumber to recommend that Ramaphosa suspend Judge President John Hlophe from his office pending the final resolution of the impeachment proceedings against him.

It is an immensely important step in the direction of ensuring accountability. Judge Hlophe has been found guilty of gross misconduct by a Judicial Conduct Tribunal which included two highly experienced judges.

The decision was confirmed by the majority of the JSC and, subject to further appeals by Judge Hlophe, the ultimate decision now rests with Parliament. It should have been a slam-dunk decision for the JSC to suspend Judge Hlophe on full pay until the impeachment question is resolved.

Regrettably, the JSC vacillated and Judge Hlophe continued to preside over the Western Cape High Court. The balance of prejudice was surely obvious.

The Judge President would receive all his benefits from office. The stain of pending impeachment would remain with him until and unless he is acquitted or a court of appeal decides in his favour, an event made less likely after the damning judgment of a Full Bench of the Johannesburg High Court.

By contrast, by continuing to preside over an important court, the judicial system was, in effect, saying that a judge found guilty of gross judicial misconduct by the JSC not only can continue to preside over cases but, as Judge President, can allocate judges to hear cases including highly sensitive political matters. In and of itself, this continued practice can only erode confidence in a critical institution.

By recommending suspension, the JSC (to be accurate, the majority, as it appears that, astonishingly, a minority found that Judge Hlophe can continue in office at this time) has asserted the importance of accountability. No one, including Judge Hlophe, should be above the law and thus continue as if no finding has been made against him.

The JSC has come in for much flak over this and other matters, and deservedly so. But, with new members, it seems to have turned a corner. Hopefully, the LPC, parliamentary representatives dealing with the accountability of public office-bearers and where necessary the judiciary, will follow.

It has taken a very long time, but maybe, just maybe, the arc of accountability is beginning to bend in the correct direction. DM