Court battles

IT WAS an incident that seemed scripted for caricature. Earlier this month Dali Mpofu, a red-beret-sporting lawyer and member of South Africa’s socialist political party, the Economic Freedom Fighters (EFF), had a public argument with Cyril Ramaphosa, the country’s deputy president and leading light in the ruling African National Congress (ANC), over his right to wear a silk gown.

At issue was President Jacob Zuma’s refusal to confer upon Mr Mpofu (and several others) the honour of being called “Senior Counsel”—a tradition inherited from Britain where exalted barristers are known as Queen’s Counsel. Mr Zuma’s silence about his reasons for not granting the honour—which usually involves no more than rubber-stamping a recommendation from the legal profession—has set tongues wagging among lawyers. More than a few think it is because of Mr Mpofu’s readiness to criticise the government.

The spat was a distracting sideshow to a commission investigating the deaths in 2012 of 34 striking miners before which Mr Ramaphosa was testifying and at which Mr Mpofu was representing injured and arrested miners. But it highlighted what several leading lawyers see as increasingly assertive political meddling with South Africa’s legal profession and worrying attempts by the government to encroach on the independence of its judiciary, a jewel of its transition to democracy in 1994.

At the end of apartheid, South Africa inherited many of the gowns and trappings of the English and Roman-Dutch legal system, but a paucity of justice. A mostly white and male judiciary had energetically enforced, in the main, the myriad laws that had stripped blacks of their rights and dignity. Some judges blithely imposed the death penalty on whole groups of people after accepting the legal principle that they had acted with common purpose.

Its legal profession fared a little better, producing many of the country’s activists, Nelson Mandela among them, and producing staunch champions of human rights, such as Arthur Chaskalson and George Bizos, who defended Mandela before his long incarceration. It also exported many fine legal minds, amply providing Britain with law lords. Yet its main achievement was in helping to craft a sturdy post-apartheid constitution, bolstered by a constitutional court, that was intended to nurture and protect the nascent democracy and the rights of its citizens.

In the main it has done so admirably. The vast majority of the judges in the country’s highest courts have proved to be able and independent, ruling often against the government in matters small and large. The Constitutional Court has been seen as a model institution that has fearlessly pushed back against the executive and legislature. Among its achievements was forcing the government to recognise gay marriage and abolish the death penalty.

Yet some in the profession now fret that this independence is under threat and point to the appointment of judges to the highest courts. Here critics worry less about the qualifications and abilities of those who have been appointed, but rather express concern that some of the country’s best lawyers have been blocked from appointment. Sir Jeffrey Jowell, a South Africa-born Queen’s Counsel who runs the Bingham Centre for the Rule of Law in London, thinks that several of those passed over “would simply grace the bench of any top court of any country in the world.” Many lawyers think they were turned down for being too independent-minded.

Those suspicions have been buttressed in the few instances when the Judicial Services Commission (JSC), which recommends the nomination of judges, has deigned to give reasons. Among those turned down from the bench was Jeremy Gauntlett, a respected advocate. The JSC said this was because of doubts over his “humility and judicial temperament”—and also because he is white.

Earlier this month the Helen Suzman Foundation, a liberal think-tank, asked the courts to force the commission to release tapes of its deliberations. It is also suing to overturn the JSC’s decision not to recommend Mr Gauntlett and two other judges.

A second avenue of attack is through a new bill that would end self-regulation of the legal profession. The bill, which has been passed but not yet signed into law, would give the government considerable influence over the day-to-day running of the legal profession. The government would gain the right to appoint members of a new council that would oversee lawyers. It would also be allowed to dissolve the council, a power that could be used if its members prove to be too headstrong.

Critics of the bill have included both Mr Bizos and—before he died in 2012—Mr Chaskalson, who served as chief justice under Mandela. Mr Chaskalson wrote that the new bill was “calculated to erode” the independence of lawyers and indirectly that of the judiciary.

Yet there is hope. South Africa’s courts have the opportunity to review the JSC’s deliberations and to test the constitutionality of the new bill regulating lawyers. The judiciary, in other words, may yet be the guardian of its own independence.