SA’s legal profession has been a key enabler of state capture and its associations urgently need to launch an inquiry into their members’ conduct, be they public, private or the judiciary.
Almost the entire legal value chain — parts of the police, investigation authorities, crime intelligence and public prosecutions — is systemically corrupt. The criminal justice procurement system has been captured, as has the process of making appointments to the public system through cadre deployment, whereby politically connected ANC deployees, often without the requisite skills, are appointed to key positions. This has led to legal public policy capture, incompetence and corruption.
A typical case is that of the 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 (JSC) found judge Hlophe tried to influence justices Bess Nkabinde and Chris Jafta when they presided over the corruption case of former president Jacob Zuma and French armaments company Thint.
A country’s political, business and market cultures determine whether companies, professionals and citizens may be tempted to engage in corruption. In a country with a monopoly liberation movement such as the ANC, the governing party’s culture starts to dominate these entities.
The ANC is systemically corrupt. Because it governs as a party state, where the two become almost one and the same, SA has also become systemically corrupt. As a result of this many of the country’s private companies and professional firms, particularly those that engage with the state, may themselves mimic the corrupt culture of the ANC and the state, or at least uncritically accept it to fit in and secure contracts and positions.
In a country with a monopoly liberation movement such as the ANC, which have been in power for long, the governing party’s culture also starts to dominate the state, business and market culture of the country.
They may fear that if they do not pay bribes, for example, they will lose their competitive advantage and not benefit from contracts.
The legal profession is self-regulated. However, in many cases self-regulation has failed spectacularly.
Professional associations set basic principles of behaviour for their members. They generally have ethics codes which provide a set of standards. Society generally views the legal profession, auditors and medical professionals with higher regard because they are viewed as trustworthy.
One of the reasons they have entrance examinations, professional associations and formal standards of conduct is to entrench 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 they be shareholders, customers or patients.
Society therefore views the ethical failures, corruption and indifference by these professions with more alarm. State capture cannot happen on the scale it has without collusion between corrupt politicians, public servants, oversight organisations, legal professionals, auditors and bankers.
The phenomenal rise in corruption by trusted professionals shows SA’s integrity, laws, values and institutions established to combat corruption and ensure probity and accountability have collapsed.
The Road Accident Fund (RAF) recently vowed to name law firms that have unfairly and corruptly made a fortune out of accidents while the victims struggle to get compensation. It has complained about more than 100 firms.
Last year the ministries of justice, health and police announced a nationwide investigation into state attorneys and private legal practitioners accused of siphoning off more than R80bn from government through collusion, fraud and corruption.
Public prosecutors are regularly arrested or convicted of corruption, an example being former KwaZulu-Natal prosecutor Zanele Molefe, who was sentenced to five years in prison for corruption, theft and defeating the ends of justice.
The magistrate’s courts have been particularly under the spotlight, not only for incompetence and callousness towards citizens, but also for high levels of corruption.
Legal professional associations, oversight organisations and peers have been slack in policing conflicts of interest among legal professionals, including those on the JSC who appoint judges. Legal professionals attacking the judiciary should be disqualified from sitting on the JSC. Lawyers representing clients in cases presided over by judges being interviewed for bench positions by the JSC should not be part of the interviewing process.
In many cases law firms have also begun to mirror the corrupt culture of the ANC and the state, with whom they do business. Many argue that if government and everyone else behave this way, they better do the same or face losing lucrative government contracts.
During recent interviews for the chief justice, for example, there was a clear conflict of interest in Dali Mpofu being on the panel, having represented Zuma after he failed to appear before the Zondo commission of inquiry into state capture, which landed him in jail for contempt of court.
In many cases law firms have also begun to mirror the corrupt culture of the ANC and the state, with whom they do business. Many argue that if government and everyone else behave this way, they better do the same or face losing lucrative government contracts.
Civil society must play a more proactive role in ensuring legal professionals and public regulators hold those who are unethical accountable. There is an absence of civil society organisations to specifically hold the legal profession to account and represent the public interest in cases of wrongdoing.
Legal professionals must also hold their peers accountable — publicly criticise colleagues who are unethical and shun them. Government, the private sector and citizens should not do business with corrupt legal professionals.
Given our corrupt state, regulation by the government of legal professionals is unlikely to improve.
Disciplining, debarring and penalising unethical legal professionals takes too long. The JSC’s disciplinary case against judge Hlophe took years, undermining the judiciary’s reputation. The slackness of legal oversight organisations in holding their members accountable has meant victims of legal malpractice are increasingly using the courts to hold professionals accountable for unethical behaviour.
They must also play a stronger role in ensuring firms are ethical. It is crucial law firms come together to agree on an anti-corruption stance and collectively shame firms that do not adhere to ethical behaviour agreements.
Finally, professional firms’ profits-at-all-costs stance needs to change to become balanced and ethical, with 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 and edited extract from a keynote address to the recent annual general meeting of the Law Society of South Africa.
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