Lawyers and state capture

One of the most alarming aspects of the unfolding “state capture” saga has been the discovery that once-reputable professions facilitated the looting.

The boards and senior managements of crooked companies and state-owned enterprises (SOEs) were heavily populated with chartered accountants who failed to discharge their oversight responsibilities. The SA Institute of Chartered Accountants (Saica), the bean counters’ professional body, then proved inept or impotent when it came to sanctioning accountants implicated in abuses at Steinhoff, Transnet, or Gupta-owned companies.

Citizens were perhaps only a little surprised by the lamentable behaviour of so many accountants. They have been more deeply shocked by the role allegedly played by lawyers in the perpetration of looting and the obstruction of justice.

Lawyers, it is true, have not been popular since at least the late 1500s in Western Europe. Their spread to the colonies, somewhat in the manner of a plague, was never destined to end well. Little wonder even reprehensible lawyer jokes continue to be so popular around the world. Question: What should you do if you run over a lawyer? Answer: Back over him just to be sure. Question: How do you save a lawyer from drowning? Answer: Take your foot off his head.

Ordinary citizens perceive an asymmetry in the application of the law in recent years. It has seemed largely impotent in the face of a large-scale looting. Indeed, lawyers apparently facilitated appalling behaviour, rendering immoral actions legal, and laundering legal opinions for looters in exchange for inflated fees.

Once journalists and politicians had exposed the malfeasance, however, lawyers suddenly became effective; but primarily, it seems, at protecting the wrongdoers from prosecution. Worse still, commissions of inquiry run by judges are now widely viewed as whitewashes or hatchet jobs. What’s the difference between a good judge and a bad judge? A bad judge will let a commission of inquiry drag out for several years. A good judge can make it last even longer.

The Law Society of SA is a trade union preoccupied with fending off competition from foreign lawyers who might undercut the local feeding trough. It will no doubt battle in the years ahead to stop citizens accessing new legal technologies that in other countries will dramatically undercut conveyancing, commercial, and family law fees.

Money lies at the centre of the profession’s preoccupations. A lawyer dies and finds herself at the gates of Heaven. “There must be a mistake,” the lawyer complains. “I’m only 50. I’m too young to die.” “Fifty?” says Saint Peter. “According to our calculations, you’re 82. We added up your billing sheets.”

The Law Society of SA does little to promote pro bono work or to make the law accessible to poorer citizens. Instead it celebrates the Road Accident Fund (RAF) racket, which makes middling lawyers rich and is paid for by ordinary people through the fuel levy. Only a personal injury lawyer, the association claims, can reliably negotiate the impenetrable protocols surrounding an RAF claim.

Lawyers have evaded the historical reckoning that might have punctured their steady complacency. Apartheid, after all, was a form of institutionalised and legalised oppression. Rather than reflect on the significance of their role in this historical abomination, most advocates vaguely trace their lineage to the brave but marginal battles of a relatively few lawyers in the struggle against apartheid.

This humbug is institutionalised in the Law Society of SA’s Legal Practice Council, which is dominated by the National Association of Democratic Lawyers and the Black Lawyers Association. The former believes that even ambulance chasers are inherently “progressive”. The latter wants black lawyers to be overpaid by exactly the same amount as white counsel.

The association seems entirely unable to communicate any sense of the law as a vocation. Like the mafia and the ANC, the Law Society of SA is instead dedicated to the promotion of “unity” among its own constituent membership. This perpetuates the omertà, or code of silence, that discourages criticism of one lawyer by another, and allows unprofessional behaviour to continue unchecked. Question: What do you get when you cross the Godfather with a lawyer? Answer: An offer you can’t understand.

 

• Butler teaches public policy at the University of Cape Town.

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