SA legal profession threatens to become as corrupt as the state
- William Gumede
Law firms need to come together to agree on an anti-corruption stance and shame those who are unethical.
South Africa’s legal profession – both public and private, certain law firms and some members of the judiciary have been key enablers in state capture, and legal professional associations urgently need to launch an inquiry into the conduct of their members.
Almost the entire value public legal value chain is systemically corrupt: parts of the police, investigation authorities, crime intelligence and public prosecutions. The criminal justice procurement system has been captured. There has been a “capture” of appointments to the public legal system through cadre deployment, whereby politically connected ANC deployees, often without the requisite skills are appointed to key positions, which has often led to legal public policy capture, incompetence and corruption.
There has been a “capture” of “transformation” debates for purely self-interest. A typical case is that of Black Lawyers Association which nominated Western Cape Judge President John Hlophe to become Chief Justice, ostensibly to promote “transformation”. Yet, in 2021 the Judicial Service Commission found that Judge Hlophe tried to influence Justice Bess Nkabinde and Justice Chris Jafta in the case they presided over in which former president Jacob Zuma was accused of corruption with French armaments company Thint.
A country’s political, business and market culture determine whether companies, professionals and ordinary citizens may be tempted to engage in everyday corruption. In a country with a monopoly liberation movement such as the ANC, which has been in power for long, the governing party’s culture also become to dominates the state, business and market culture of the country.
The ANC is systemically corrupt. Because the ANC is governing the country as a party-state, where the party and the state have become almost one and the same, the South African state has also become systemically corrupt. Because the ANC and the state are systemically corrupt, many of the country’s private companies, professional firms and professionals, particularly those having to engage with the corrupt state, may themselves mimic the corrupt culture of the ANC and the state – or at least uncritically accept it, to fit in, secure state contracts and positions.
Companies, professional firms and professionals may fear that if they do not pay bribes for example, they lose their competitive advantage, and will not get contracts. This is the so-called “prisoner’s dilemma”, in which the company, professional firm and professional that does not do bribery, will lose out on contracts if every other company bribes in return for contracts.
The legal profession is self-regulated. However, in many cases self-regulation has failed spectacularly.
But professional legal associations, oversight organisations and peers have spectacularly failed to uphold ethical, professional and behaviour standards of their members. In fact, these peer oversight organisations have been slow in disciplining, debarring and penalising unethical legal professionals and firms.
Professional associations set basic principles of behaviour for their members. They generally have ethics codes, which provide a set of standards for conduct for members of the profession that issues the code. Society generally views trusted professions, such as the legal profession, auditors and the medical professionals, with higher regard, because they hold positions that exercise a public trust.
One of the reasons why these professions have entry examinations, professional associations and formal standards of conduct is to set basic principles of good behaviour. They are expected to perform their duties with the highest ethical, personal and professional standards – and act in the best interests of those they serve, whether it is shareholders, customers or patients.
Society, therefore, views ethical failures, corruption and indifference by these respected professions with more alarm. State capture cannot happen on the scale it has, without connivance between the corrupt politicians, public servants and oversight organisations, without the collusion with legal professionals, auditors and bankers.
The phenomenal rise in corruption by trusted professionals shows that South Africa’s integrity ecosystem, the overarching societal frameworks of laws, values and institutions established to combat corruption, and ensure probity and accountability have collapsed.
Early last the month, the Road Accident Fund (RAF) said it will name the law firms that have over the years unfairly and corruptly made a fortune out of accidents, while victims struggle to compensation, and when they do, get very little. Last year, the RAF wrote to the Legal Practice Council to launch a complaint against over 100 law firms over duplicate payments paid to these firms by the RAF.
Last year the ministries of justice, health and police announced a nationwide investigation into state attorneys and private legal practitioners, accused of siphoning off over R80bn from government through collusion, fraud and corruption. Public prosecutors are regularly arrested or convicted for corruption, like the case last year, when the Camperdown Regional court handed down five-year imprisonment to former KwaZulu Natal prosecutor Zanele Molefe for corruption, theft and defeating the course of justice.
The magistrate courts have been particularly under the spotlight not only for incompetence and callousness to ordinary citizens, but also for high levels of corruption. Cases like the one in 2018 when a Carletonville magistrate was arrested for allegedly soliciting a bribe is increasingly common.
The most recent Afrobarometer survey showed that 32% of ordinary citizens say that most or all of magistrates and judges are corrupt. There have been attempts to capture the appointment to the judiciary, including the appointment of the Chief Justice.
Legal professional associations, oversight organisations and peers have been very slack in policing conflicts of interests among legal professionals, including those sitting on the JSC who appoint judges. Legal professionals attacking the judiciary should be disqualified from sitting on the JSC. But legal professionals representing clients in cases presided over judges being interviewed for bench positions by the JSC, should not be part of the interviewing process.
During the interviews for the Chief Justice, Dali Mpofu for example had a clear conflict of interests in having represented former President Jacob Zuma after he failed to appear before the Zondo Commission and was then jailed for contempt of court.
In many cases, the business cultures of many professional law firms, have also begun to mirror the corrupt culture of the ANC and the state – with whom they are doing business. Many law firms, argue, while government and everyone else behave in this way – corruptly, we better do the same; or face losing out on lucrative government contracts.
Corruption of legal professional and oversight organisations have contributed to the spread of corruption in the profession. In many cases supposedly independent legal professional and oversight authorities have been staffed by corrupt, incompetent and uncaring ANC cadre deployees. Honest professionals in such associations are often hounded out.
Civil society must play a more proactive role in ensuring legal professionals, law firms and public regulators hold legal professionals and firms publicly accountable for unethical behaviour. There is an absence of civil society organisations specifically holding the legal professions accountable – and which represent the public interests in cases of legal profession wrongdoing.
Legal professionals must also hold their peers more accountable – publicly criticise colleagues who are unethical and shun them. Government, the private sector and citizens should not do business with legal professionals and firms who have been proven to be corrupt.
Given the very corrupt state of government, regulation by government of legal professions is unlikely to be better. Legal professional associations, oversight organisations and peers must play a bigger role in holding their individual members and firms, accountable for corrupt behaviour.
Processes of disciplining, debarring and penalising unethical legal professionals take too long. The JSC disciplinary case against Judge Hlophe took years to be finalised – undermining the reputation of the judiciary. The slackness by legal oversight organisations to hold their members accountable has meant that victims of legal malpractice are increasingly using the courts to hold legal professionals accountable for unethical behaviour.
They must also play a stronger role in ensuring the corporate cultures of professional firms are more ethical, the clients they take on more balanced and caring. It is crucial that law firms come together to make collective agreements not to act corruptly – and for companies to stick to such agreements – and shame firms that do not adhere with such ethical behavior agreements.
Finally, there must be a change in professional firms’ focus on profits at all costs, towards more balanced, ethnical and sustainable profit targets.
William Gumede is Associate Professor, School of Governance, University of the Witwatersrand and author of Restless Nation: Making Sense of Troubled Times (Tafelberg)
This is an edited extract from a keynote address to the recent Annual General Meeting of the Law Society of South Africa. It was published on timeslive.co.za.