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Whilst this may not be The Bob Loblaw Law Blog, I remain a Law student, and think it’s time for a post about the Law. This was sent to me recently, and makes for a fascinating read. It was the graduation speech given to law graduates from a certain University up north. The speaker is Judge Kees van Dijkhorst, who delivers a sobering look at the state of our judiciary. It’s a bit hefty, at 2000 words, but worth every syllable:

We study, teach and practise law, but do we have a theory about what we do? Do we have a sense of our own social purpose and that of the legal institutions in which we participate?

The law is the body of rules that society has laid down to regulate itself. Without laws there can be no society. It will burst apart at the seams and total anarchy will erupt. The law of the jungle will prevail.

The origins of law are to be found in the religious morality of society. In early communities there was no sharp distinction between religion, morals and the law, as at present. They were indistinguishably mixed together. Compare the Ten Commandments of which the first Thou shalt have none other Gods but me is religious; the fifth Honour thy father and thy mother is a moral precept; and the eight is a legal duty Thy shalt not steal. The severance of law from morality from religion came much later. Today it has gone so far that many people think that there is nothing in common between law and religion. Or that law knows no morality. There is no morally binding rule. Only legally binding rules have to be obeyed. And then only grudgingly.

Our law comes a long way. Its antecedents stretch back more than two millennia to Jerusalem, Athens and Rome. The legal thinking of the Romans was imbued with the logic of the Greeks and since the Roman emperors converted to Christianity in the fourth century, with a Judeo-Christian moral basis. And the line runs from there through Amsterdam with its commercial activity to Cape Town and into Southern Africa. And all along the way it was moulded by the prevalent ethical norms of the society in which it functioned and also by the exigencies of the times.

Since 1994 our norms are tested against and formed by the values of our Constitution: human dignity, equality, and the advancement of human rights and freedoms, non-racialism and non-sexism. The Constitution is supreme and the rule of law prevails. (Section 1 of the Constitution of the Republic of SA 1996)

But law in itself is merely words on paper. To be effective it has to be enforced. If laws are not enforced they may as well not exist. And anarchy will eventually triumph.

Judges, magistrates, advocates, attorneys, prosecutors, investigating officers, witnesses, court personnel, etc are all part of the vast system created to regulate society. Its purpose is the common well-being of society as a whole.

The whole system is dependent for its effectiveness on a number of core values: integrity, diligence, competence, discipline, proper administration, a social commitment, respect.

Integrity

A lawyer is a person of integrity. There are no degrees of integrity. Integrity is absolute.

Integrity must pervade the whole process of the law. From the receipt of the complaint to the ultimate decision on guilt or innocence is reached.

Integrity does not only encompass honesty in the sense of not stealing money. It includes not stealing the employer’s time (for which you are paid) by starting late and leaving early.

Integrity means you do the job well for which you are paid, to the best of your ability.

Integrity means that you are incorruptable. This not only means that you cannot be swayed from the path of duty by favours, monetary or otherwise, but also not by fear of political or other intimidation.Or by racial or other prejudices.

Integrity means that you do not use the rules of court to frustrate the course of justice.

Diligence

This means you put heart and soul into the task at hand.

Competence

Means you are qualified for the task.

Discipline

Means rules must be complied with and must be enforced.

Proper administration

Means that things are done in an orderly functional manner.

Social commitment

Means that witnesses willingly co-operate in the judicial process out of a sense of duty towards society. And that counsel and attorneys are not money making machines, but put their commitment to a better society first.

Respect

Means that the advocate, attorney, prosecutor and investigating officer not only are respectful towards the bench, but also towards each other and in particular towards the witnesses.

Does our justice system pass the test?

No. The red lights are flickering.

The head of the National Prosecuting Authority, after 1994 a political appointee, was dismissed for prosecuting the Commissioner of Police another political appointee, on charges of corruption.

The acting head of the National Prosecuting Authority on 6 April 2009 abandoned the prosecution on 16 charges of a political figure who, a court found, was in a corrupt relationship with and took bribes from Shabir Shaik. The NPA worked on the case for 8 years. There are 218 witnesses. (Beeld 7/4/09 p16) It admits that it has a good case. The alleged reason for the abandonment is that Mr Bulelani Nguqa (then unconnected to the NPA) discussed the timing of the charge with Mr Leonard McCarthy (Head of the Scorpions). It had noting to do with the merits of the case. It is unexplained why the NPA did not leave it to the court to decide whether these conversations vitiated the judicial process. This action by the NPA has shredded whatever image of independence and impartiality it had.

The judge president of the Cape High Court accepted retainers from a commercial entity and then decided whether that entity would be allowed to sue another judge of that division. The Judicial Services Commission exonerated him.

The acceptance of retainers was highly irregular. Whether he had the oral permission of a fortuitously deceased minister is irrelevant. In any event standard practice was to grant permission officially and in writing. The decision to decide the question whether leave to sue should be given was irregular. The decision by the JSC is inexplicable.

That other judge was allegedly involved with a lady and arrested in India and made headlines.

That same judge president stands accused of having attempted in September 2008 to influence the decision of the Constitutional Court in the matter of the attachment of documents of Mr Jacob Zuma. This issue is still sub judice. But the matter has deteriorated into a judicial circus. The CC as a whole laid a charge against the judge president with the Judicial Services Commission. It thereby disqualified itself from sitting in any further proceedings in the matter.Particulars of the charge were given to the press. The JP laid a charge with the JSC against the whole CC because of the press statement. The JP approached the South Gauteng High Court alleging that his constitutional rights of dignity and equality had been breached by the press statement and that the charge must be set aside. By a majority of 3 to 2 the high Court found that his constitutional rights had been breached but it unanimously found that that did not affect the validity of the charge. The full CC appealed to the Court of Appeal against the finding of the 3. The Court of Appeal constituted a bench of 9. The JP moved that the presiding judge recuse himself because of bias, but later dropped the application. The Court of Appeal held that no rights of the JP had been breached by the press statement.. The enquiry by the JSC must proceed.

The JP required that the enquiry be held in camera. The JSC acceded. This caused a furore and an urgent application by the press to the High Court. It was ordered that the matter be open to the public.

The JP wrote a letter to the JSC requiring the members to recuse themselves on the ground of bias. This was refused. When the hearing started the JP did not attend. It was alleged he had flu. His counsel foreshadowed an application for an interdict against the continuation of the proceedings as the JP wanted to attack the refusal by the JSC to recuse itself. The matter had to be postponed. When the matter resumed on 4 April the JP had a new doctor, a new illness and a new counsel.(Brian Pincus SC) The matter had to be postponed again. On 7 April when the inquiry resumed the JP was again absent and was represented by a further new counsel who again requested a postponement, threatening to withdraw if it was not granted. The postponement was refused. Counsel withdrew. Evidence was led. The matter is still pending. Whatever the outcome, the general public can but take a dim view of these judicial antics.

That same judge president is being sued by a former acting judge for defamation. He allegedly remarked unfavourably on the acting judge’s ability to write judgments.

A judge of the Pretoria High Court smashes his Jaguar into a brick wall. He is accused of drunken driving. The matter is still sub judice after many months and numerous appearances.

To quote Hamlet: All is not well in the House of Denmark.

If this is the scenario when our highest judges are personally involved, what is to be expected in the lower courts?

Our criminal cases run much longer than they used to. Time costs money. Accused are in this way penalised even when not guilty. The reasons for the delays are numerous. I do not have the time to deal with them.

Allow me to refer to some examples:

· In October 2005 a woman was gang raped in Tembisa. The case against her 8 assailants started in December 2005.Since then it has been postponed numerous times and once was struck off the roll. On 2 March 2009 it was postponed to 27 July 2009 as the roll was full. (Beeld 3/3/09 p6 )

· After about 9 years of trial (more off than on) of the Boeremag case 2 accused admit the facts alleged against them. Had our system provided for the accused to state their case first (the European inquisitory system) all this time would not have been wasted (at least in respect of those two).

· On top of the inordinate delays when cases do come to court, there is the disturbing fact that only a small fraction of charges laid make it to court. In the year 2007/8 according to Gauteng police statistics only 8% of the 47 216 charges laid of violence against women and children reached the courts. Of the 48 865 charges laid of contact crimes only 26% reached the courts and of crimes against property only 11% of 154 647charges laid. This means that police investigation and preparation of cases is wholly ineffective. (Beeld 4/3/09, p9 ).

The criminal justice system is in dire straits.

As regards civil litigation, it is so costly that ordinary folk cannot afford the

luxury of a court case.

Our procedure is cumbersome with little leeway for the judge to speed up matters.

There is a lack of confidence in the competence of our High Courts in civil matters exacerbated by a waiting time of two years on the trial roll.. This leads to an increase in referral of matters to arbitration, often even when the parties are already in the portals of court. This is a sad reflection on our judicial system. The remedy is to bring back the confidence in the judiciary by appointing judges from the best of our senior counsel, on the basis of merit. Experience breeds confidence and confidence and experience leads to quick and correct decisions.

To sum up: Neither the criminal nor the civil justice system is properly functional. At the root of the situation is a lack of competence, diligence, and sometimes integrity.

Do I by painting this bleak picture attempt to dissuade you, graduandi, from the practice of the law? On the contrary, our country needs young practitioners. People like yourselves with integrity, honesty, diligence and starry eyes eager to tackle the future. The law is a hard taskmaster but its practice is highly rewarding, not only financially, but, more important, intellectually. There is never a dull moment. And on top of it all you will each make an important contribution to the betterment of our society.

In the words of Longfellow (slightly adapted): Come along grow old like me. The best is yet to be!


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