PABASA

PAN AFRICAN BAR ASSOCIATION OF SOUTH AFRICA

PABASA National Executive Council:

E Baloyi-Mere SC (Chair); N Jiba (Vice-Chair); Secretary: S Manganye; Deputy Secretary: M Sikhakhane Finance: L Zungu; Briefing Patterns: L Haskins; Gender and Equity: M Seti-Baza; Legal Education: B Matlhape; Additional Members: M Hinana SC; N Khooe; D Mpofu SC;

Patron: D Ntsebeza SC

STATEMENT ON JUSTICE CAMERON’S CALL FOR TARGETING LAWYERS FOR EXPRESSING THEIR VIEWS

Last week, a South African daily newspaper published an edited version of a speech it said had been delivered by retired Constitutional Court Judge, Justice Edwin Cameron on the occasion of the conferment on him of the Sydney and Felicia Kentridge Award by the General Council of the Bar, which is one of many associations of advocates in South Africa. The edited speech as published in the newspaper can be accessed in this link.

There appears to be a growing tendency of some in society to opportunistically and cynically use their prestige and social capital to galvanise society around their own narrow ideological and political ways of being and ways of seeing. Regrettably, Justice Cameron’s edited speech does little to counter that perception.

In his speech, purporting to be in defence of democracy and the rule of law, the retired Judge identifies what he terms “two particular sources of peril” against South Africa’s “democracy, the rule of law and the constitution”. One is poverty; another “some advocates”. He is to be commended for highlighting the perils of poverty, inequality and marginalisation, and calling on the profession to do more. But, regrettably, what then follows his apt commentary on the perils of poverty deviates from the noble path he started on. His description of “some advocates” in similar vein as a “source of peril” is an accusation that cannot go unchallenged.

The retired Judge invites the organised legal profession and the Judiciary to “target” what he describes as

“lawyers, including some advocates, who seek to propel [a political agenda]”. The mistake he makes in that invitation is to not clearly distinguish between lawyers who may be aiding and abetting greed, on the one hand, and lawyers who are supporting a particular political ideology on the other. Populism does not necessarily equate to greed and in itself is not anti the poor. It is not necessarily true that a lawyer or politician who is a populist is also necessarily greedy and working towards taking from the poor. It is, however, true that there may be lawyers and politicians who are professing to be pro poor but have proven themselves to be working in the interest of their own greed and may be misusing the system (including the Courts) in the process. Conflating the two is what creates the problem in our view.

We would have expected Judge Cameron to know the pain of being targeted for being different or holding a different view. Free speech, even if what is spoken is inconsistent with one’s “superior” views on democracy and the rule of law, is the bedrock of democracy. In his assault on advocates whose political leanings he seems to despise, Judge Cameron runs the risk of a perception that his opprobrium of those advocates is influenced by subliminal and deeply held, yet cleverly concealed, white supremacist beliefs. His well- calculated intimidation of advocates who hold dissenting views to his own, and his descension into the political arena, under the guise of constitutionalism, must be seen for what it is.

To suggest that people (“advocates”) must be targeted for their views and beliefs, including criticism of aspects of the Constitution, could be viewed as smacking of regrettable fascist instincts, a dangerous attempt at suppressing dissent that has no place in our country. One can “believe” that one is defending democracy because one has a narrow or blinkered view of what democracy is.

In other words, one can be sincere in one’s own belief, while being sincerely wrong in that belief. But this cuts both ways. Just as Judge Cameron can be sincere in his belief that he is defending democracy, so too can the advocates he wants targeted for their beliefs. It cannot be right to elevate one set of beliefs above another based on the prestige one enjoys today. As apartheid demonstrates, what may be generally accepted law today may be viewed as an abomination some decades down the line.

Judge Cameron makes threadbare and perfunctory accusations against advocates whom he says “used the Judicial Service Commission to wreck the advancement of conscientious and capable candidates for judicial preferment.” He knows full well that it is the JSC as a body that recommends (or not) candidates for judicial appointment. The Judicial Services Commission comprises at least 23 commissioners including academics, members of parliament, judges, attorneys and advocates. So, on what rational basis is he targeting

“advocates” for a decision of the Judicial Services Commission as a body?

The retired Judge further calls for a “focused response” against advocates who propel an “overt political agenda” by the General Council of the Bar, the Legal Practice Council (South Africa’s statutory regulator of the legal profession), the Law Society of South Africa (a formation of attorneys or solicitors) and the Judiciary. To the extent that such advocates, whom Justice Cameron fails to mention, have violated the Code of Conduct, the Legal Practice Council knows what to do. It is notable that Judge Cameron equates the advocates profession to one formation being the General Council of the Bar. Of course, this is not the case and one would have thought a Judge would appreciate this. Obviously, he is intentional about which formations he can count on in the crusade which he calls for.

The retired Judge also invites the General Council of the Bar, the Law Society of South Africa and regulator alike to identify what he terms “unscrupulous practitioners who debase the law and legal institutions” and expose and confront what he terms “their lies and dishonest stratagems”. Of course, such conduct by legal practitioners, together with other offenses like the sexual abuse of young boys and other misdemeanors require action by the Legal Practice Council and our courts. They must not be selective. We do hope that the Legal Practice Council will not allow itself to be used for improper agendas.

Judge Cameron then invites the Judiciary to adopt a “focused response” that includes “not only … depriving guilty practitioners of their fees, but in some cases ordering that they personally pay the costs of the litigation”. There may be cases that are deserving of this judicial intervention. But we must be careful of an otherwise legitimate remedial tool being used for purposes of suppressing dissent. This would risk an overtly politically partisan judiciary. That would be a tragic regression that could spark loss of confidence in the judiciary and possibly violent public pushback.

His suggestion that those who express views critical of the Constitution are also legitimate targets for isolation and/or whatever he wants them targeted for goes against the very spirit of democracy and the rule of law he purports to defend. We believe that freedom of conscience, thought, belief, opinion and expression are essential to a functioning democracy. We are inspired by the sincere words of the late former Chief Justice Pius Langa when he said: ”’[t]here is no doubt that the world, and this country in particular, are in dire need of men and women of courage who follow the dictates of their conscience. South Africa is a young country on the democratic road and can only benefit from having all constructive views being freely expressed.”

Except for the hint provided by the juxta-positioning of what he terms “a more insidious … source of peril [that is, some lawyers]” with the spectre of a former President who has been the object of a commission of inquiry into the looting of state resources, it is difficult to engage meaningfully with the merits of the retired Judge’s published speech.

This is because the speech does not identify the “advocates” who must be “targeted”, and the specific conduct he describes as “employ[ing] the implements of legal practice to bedevil and confuse and dismay.” It does not identify the cases that he says are “bogus legal interventions and cynical tactics [that] are not merely distracting and exasperating, [but] are part of an assault on the Judiciary and on the rule of law, in service of a larger programme of destruction for avarice”. It is thus difficult to ascertain how any legal practitioner (or judge for that matter) who is not seized with the particular case in which one of the identified “sources of peril” to our democracy can be certain that the case is “bogus legal intervention” and “an assault on the Judiciary and the rule of law”.

Apartheid was once law in South Africa. It was sustained for many decades by a body of laws aimed at subjugating and exploiting the labour of black South Africans for the benefit of white South Africans. Many black South Africans were killed by the apartheid state with the connivance of white judges who took the view that their job was to “enforce and uphold the laws of the country [as] duly enacted and promulgated”. Those who actively opposed apartheid laws were targeted in much the same way as now advocated by the retired Judge. It is important to be vigilant about becoming defenders of a political establishment because every political establishment can become totalitarian. It is in this context that critical voices are always necessary in any given political system. It is dangerous to label and target those with a dissenting voice simply because the prevailing political establishment is convenient for particular interests.

It was the late former Chief Justice Pius Langa in the Bram Fischer Lecture, entitled “The Emperor’s new Clothes”, who reminded us that:

“Sometimes the simplest act of dissent can change the course of history…Sometimes the dissenter is the lone voice of reason in the dark. There will be some who privately agree with a dissenter, be it a Galileo, a Saro-Wiwa, a Rosa Parks or a More. The value and courage of dissent comes in standing up and pronouncing the difficult view in public and taking the consequences. It is easy to believe in something, it is much more difficult to speak out.”

In the same lecture, Chief Justice Pius Langa quotes with approval what Bram Fischer said about those who believe in suppressing free speech in defence of a political system and rule of law they like, no matter how evil. Bram Fischer said:

“When an advocate does what I have done, his conduct is not determined by any disrespect for the law nor because he hopes to benefit personally by any ‘offence’ he may commit. On the contrary, it requires an act of will to overcome his deeply rooted respect of legality, and he takes the step only when he feels that, whatever the consequences to himself, his political conscience no longer permits him to do otherwise. He does it, not out of a desire to be immoral, but because to act otherwise would, for him, be immoral.”

Many of Bram Fischer’s yesteryear colleagues in the same General Council of the Bar that Judge Cameron was addressing and instructing to target those expressing views that are critical of the Constitution, who were comfortable with apartheid and its form of the rule of law sought Bram Fischer to be “targeted” and struck off the roll of advocates. They were convinced that what they were defending was the rule of law and democracy. History repeats itself and there is never a shortage of people seeking the punishment of dissenting voices. We would have thought Judge Cameron would be the last to call for the targeting of people who are different or who hold critical views, even if such views are not consistent with his interests or beliefs.

We refer to Bram Fischer because the calls for his “targeting” started like this. He was targeted by the state and the legal profession itself for his political beliefs and trenchant opposition to the laws by which South Africa was governed in the 1950s and 1960s. Hounded out of the advocates profession by the Johannesburg Society of Advocates, which applied to have his name struck off the roll of advocates, he died untitled.

When striking Fischer’s name off the roll of advocates, the Pretoria High Court said Mr Fischer “…admits that his political beliefs are such that he is not prepared to conform to the laws of this country. It is the duty of the Court to uphold and enforce the laws of the country duly enacted and promulgated. It would be inconsistent with that duty for the Court to allow an advocate to remain on the roll when he is defying these laws and instigating others to defy these laws.” (Society of Advocates of SA (Witwatersrand Division) v Fischer 1966 (1) SA 133 (T) at 137D).

So, the legal profession has travelled the treacherous path that Judge Cameron will have us travel again. The bitter irony is that Bram Fischer was represented in that case by Sydney Kentridge, the very person in whose honour the retired Judge was conferred an award and made his speech inviting the “targeting” of advocates for their “overt political agenda” that he characterises as aiming to “disable barriers to looting”. He was hounded by the very association to which Justice Cameron now pleads for the targeting of advocates for expressing views inconsistent with his and those with whom they seek to defend liberal constitutionalism and the State.

His conflation of criminality (theft or looting) with “political agenda” is troubling. It could be seen by some as smacking of an insidious political agenda itself, while parading as a voice in defence of democracy, and borne out of a belief in some form of intellectual superiority over others. It airbrushes out of history many men and women who used the law and institutions of law as an instrument against injustice. For example, in his seminal work, “The Land is Ours”, a colleague writes about what he terms “South Africa’s First Black Lawyers and the Birth of Constitutionalism”, pointing out that these men used the law as an instrument against injustice. Why should lawyers today be “targeted” for using the law and the courts as an instrument against injustice?

The irony deepens. The Sydney and Felicia Kentridge Award is an annual award conferred by the General Council of the Bar for excellence in public interest law. The Johannesburg Society of Advocates, with the General Council of the Bar, later applied to have Fischer’s name reinstated on the roll of advocates - posthumously. But the damage had long been done.

The South African Constitution upholds the principles of the rule of law, which is essential for a functioning and democratic society. When a retired judge of the highest court in South Africa advocates for the targeting of lawyers for “overt political agenda”, including being critical of the Constitution, it can pose significant dangers to the rule of law. Here are some key dangers that the speech pose:

Undermining Judicial Independence: The judiciary plays a crucial role in upholding the rule of law. When a retired judge invites serving judges to “target” lawyers for their “overt political agenda”, this raises concerns about the judiciary’s impartiality and independence. Judicial independence is a fundamental principle that ensures judges can make decisions based on the law, not political allegiance, and without fear of reprisal. Advocacy against lawyers for their “overt political agenda” can erode public trust in the judiciary and compromise its ability to act independently.

Threatening Freedom of Expression: Freedom of expression is a protected right enshrined in section 16 of the South African Constitution. It is one of the cornerstones of a democratic society. That right does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Lawyers, like any other citizens, have the right to express their political views, including being critical of the Constitution itself. When a retired judge of the Constitutional Court advocates for the “targeting” of lawyers by the profession and by the Judiciary for their “overt political agenda”, also enshrined in section 15 of the Constitution, it undermines this fundamental right. Such advocacy stifles free speech, discourages open dialogue, and restricts the democratic exchange of ideas.

Chilling Effect on Legal Profession: Targeting lawyers for expressing their political views can also have a chilling effect on the legal profession. Lawyers may feel pressured to self-censor or refrain from expressing their opinions or accepting certain briefs out of fear of retaliation or professional consequences. This can lead to a lack of diversity of thought within the legal community, impeding the robust and informed legal analysis necessary for upholding and developing the rule of law. Apartheid was once an entire body of law by which we were governed in South Africa, so much so that those, including advocates or barristers, who railed against it were targeted, as the example of Bram Fischer discussed above demonstrates.

Weakening Public Confidence: An invitation by a retired Constitutional Court judge for the legal profession, including the judiciary, to “target” lawyers for expressing criticism of the law and the Constitution can undermine public confidence in the legal system itself. When individuals in positions of authority and influence promote actions that go against the principles of the Constitution, it erodes the credibility of the legal system and weakens public trust. This, in turn, can hinder the effective functioning of the rule of law, as public confidence is essential for the legitimacy and acceptance of legal decisions.

Disregard for Constitutional Supremacy: The South African Constitution is the supreme law of the land and provides the framework for governance and protection of rights. When a retired Constitutional Court judge advocates for the targeting of lawyers for expressing criticism of the Constitution and the law, it demonstrates a disregard for its supremacy. This sets a dangerous precedent and can undermine the foundational principles upon which the rule of law is built.

Inciting Violence: The “targeting” of persons and lawyers may lead not only to human rights abuses but also to endangering the lives of lawyers for acting as professionals and also for expressing their views. Such reckless incitement has no place in a constitutional democracy but rather belongs to the apartheid regime which the speech appears to be reminiscent of. We have seen our colleagues being targeted and murdered simply for having different view and doing their jobs.