A recent round of Judicial Service Commission (JSC) interviews did what few public hearings manage: it held up a mirror to the legal profession and forced us to squirm.
During the KwaZulu-Natal interviews, attorney Malizo Gwagwa, a candidate for the KZN Division, was asked a question so basic it could have been lifted from one of my ethics exams: “Why did you not disclose your previous suspension?”
His reply was disarmingly casual: It wasn’t relevant.
The panel looked visibly stunned.
How, exactly, could a suspension for alleged unprofessional conduct be irrelevant to an application for judicial office? asked Advocate Kameshni Pillay. Yet, according to Gwagwa, the question simply hadn’t required that information.
It was a masterclass in legalistic literalism – and in self-deception.
The profession’s favourite loophole
That exchange revealed something uncomfortable about the legal profession: our remarkable capacity to fudge.
Courts and the public depend on lawyers’ ipse dixit – their own word – as reliable. Without that trust, the rule of law begins to look less like a pillar of democracy and more like a polite fiction.
But too often, honesty gets treated as an optional extra, something to be performed when convenient. The attorney’s answer – “it wasn’t relevant” – wasn’t just evasive. It was an act of rationalisation: a subtle psychological trick that lets us square our self-image as “good people” with behaviour that doesn’t quite match.
Behavioural economist Dan Ariely calls this the “fudge factor”. It’s how otherwise decent people cheat just a little bit while still feeling moral. In law, where language itself is the tool of trade, the temptation to stretch meaning until it suits one’s conscience is irresistible.
Good lawyers, bad excuses
Lawyers, by training, are rationalisers par excellence. We can turn ethical breaches into technicalities, omissions into misunderstandings, and sometimes even lies into “alternative framings”.
A few recent cases illustrate this with uncomfortable clarity.
In a matter in the Gauteng High Court (Mavundla), heads of argument were filed that included hallucinated case law – fake authorities generated by AI. When the judge questioned this, counsel blamed the attorney, the attorney blamed the candidate attorney (the “article clerk”) and the candidate attorney blamed the Unisa portal.
When parties were called to account by the judge, the response of the proprietor of the law firm involved wasn’t contrition but indignation. He rebuked the judge for putting his candidate attorney under “undue duress”.
It’s hard to know what’s worse: submitting nonsense to court or defending it as mentorship. And this can’t be good for our future lawyers.
And this isn’t new. In the now infamous case of Geach, advocates caught double-briefing and overcharging tried to spin their misconduct as “a service to society” because the Road Accident Fund was so dysfunctional.
In the Bobroff saga, father-and-son attorneys who fled the country after misappropriating client funds argued – unsuccessfully – that they’d been victims of persecution when they tried to join the Australian roll.
Then there’s the unforgettable appeal in the case of Ex parte Mdyogolo, where a candidate attorney, exposed for lying, solemnly informed the court through counsel that he hadn’t lied at all – he’d merely presented the facts “with an exculpatory flavour”.
You couldn’t make it up. Except, apparently, you can.
Cognitive dissonance, in robes
Psychologists call this cognitive dissonance: the discomfort that arises when our actions don’t align with our self-image. Most of us resolve it by changing our story, not our behaviour.
So, when a lawyer fudges, it’s rarely because they think they’re corrupt. It’s because they’ve convinced themselves they’re still good, just misunderstood. The mental gymnastics are astonishing: “I’m honest, therefore what I did must not have been dishonest.”
But this is where the professional danger lies. Law rewards the ability to argue both sides of any issue. The more skilled the lawyer, the more elegant the rationalisation. Combine that with social status and the high-stakes pressure of legal practice, and you get a perfect storm of self-justification.
The erosion of ethical imagination
The fudge factor doesn’t usually announce itself with drama. It seeps quietly into the profession: a late disclosure here, a misrepresented affidavit there, a small “technical” breach of confidentiality – all justified in the name of expediency or client interest.
But once fudging becomes normalised, the profession’s moral imagination shrinks. We start viewing honesty not as a value but as a tactical choice.
This matters because the rule of law is sustained not just by sanctions but by trust. When lawyers and judges begin to split hairs over whether truth is “relevant”, the system corrodes from within. It’s a slow-motion collapse of credibility.
What behavioural economics can teach the profession
Dan Ariely’s research shows that most people cheat only as much as they can still feel honest about. The boundary isn’t external – it’s psychological. And therein lies the problem: if our moral calibration depends on how we feel rather than what we do, then professional integrity becomes negotiable.
Legal ethics training often focuses on compliance: knowing the rules, avoiding breaches, ticking the right boxes. But ethics is not a checklist; it’s a habit of mind. The real challenge is not to know what’s right but to resist the exquisite temptation to explain away what’s wrong.
In behavioural terms, the profession doesn’t need more punishment – it needs better self-awareness.
The honest truth
The JSC’s encounter with Gwagwa wasn’t just an awkward moment in a public interview. It was a parable.
When someone applying to be a judge sincerely believes that a prior suspension for misconduct is “not relevant”, we are no longer talking about dishonesty in the simple sense. We are talking about a system so used to rationalising that it no longer hears itself doing it.
And maybe that’s the real danger.
The most worrying lawyers are not the ones who set out to deceive. They are the ones who have convinced themselves that their half-truths are fine, that context absolves them, that relevance is a matter of personal interpretation.
Ariely might call it predictable irrationality. The rest of us might just call it what it is: the slow unravelling of trust.
If the profession wants to hold on to its moral authority, it must rediscover something unfashionable: plain, unvarnished honesty. Not as a rule. Not as a performance. But as a reflex.
Because when lawyers start deciding which truths are “relevant” in relation to their ethics, it’s not just the profession’s integrity that’s at stake – the rule of law is at risk. DM