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Using law to destroy law, and ultimately our constitutional system

Professor Balthazar
By Professor Balthazar
25 Jul 2024
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A few days ago Daily Maverick published a piece which I thought initially had the makings of a potential novel about abuses of law. I then discovered that the article was reporting on yet another Jacob Zuma litigation instalment. This time he has unveiled a legal corker – litigating against the SABC to prevent the broadcaster from using the words ‘government of national unity’.

Somehow Jacob Zuma contrives in his affidavit to argue the term GNU is being employed in a deliberately misleading way by the national broadcaster. Somehow a bloc of MPs representing 68% of the seats in the National Assembly cannot be called a GNU. One would have thought that there was an easy explanation for Zuma’s mistake – after all, a coalition of populists, ethno-nationalists and other opportunistic rent-seekers is calling itself a Progressive Alliance.

The affidavit that accompanies the Zuma application is a mash of half-completed sentences and unjustified assertions. That lawyers have prepared this legal shambles yet again raises the role of lawyers in this kind of litigation. In turn, this focuses attention on the role that lawyers have played with impunity in threatening the very fabric of our legal system, much of which has been designed to help Zuma, regardless of the absence of any plausible authority in representing Zuma in a Stalingrad-type case.

Recently, that most distinguished of Constitutional Court judges Edwin Cameron has written the most incisive criticism of this constituency of lawyers “…including some advocates, who seek to propel that agenda. Some are skilled liars, dissemblers, manipulators and propagandists. They employ the implements of legal practice to bedevil and confuse and dismay.

“They have even used the Judicial Service Commission to wreck the advancement of conscientious and capable candidates for judicial preferment.

“They are a small minority, yet attract disproportionate attention and publicity, often self-generated.

“It is no good for us to shake our heads in moral indignation, to express exasperated outrage or indignant condemnation. The courts and the profession must recognise their practical aims and functions, and identify their methods.

“What they do diminishes trust in legal institutions, judges and constitutional values – and they do this with the objective of enabling and empowering those who seek to reduce our country and our institutions to a free-for-all zone of criminal syndicalism and looting.”

This is an important warning issued by one of our finest judges. 

High time for penalties


While there is a minority of legal practitioners involved, the practice of employing the courtroom as a loudspeaker for pure political argument, devoid of legal merit, the use of references to case law as war cries as a replacement for an analytical examination of the relevance thereof and the consistent discourtesy shown to the Bench, no matter the court or the judges, has increased exponentially in recent times.

It is high time that judges preserve the legitimacy of the legal system when in clear cases they order that the responsible lawyers personally pay the costs of the other side (de bonis propriis).

It is probably too much to expect that the Legal Practice Council will ever implement disciplinary action against lawyers who treat judges and hence the court of which they are officers with gross disrespect. The judiciary can and should act differently to the seemingly lackadaisical approach of the LPC.

Justice Cameron makes an additional point that requires emphasis: 

Until the last hearing of the Judicial Service Commission, applicants for judicial office were often treated with gross disrespect and appointments were made which befuddled rational justification. That the JSC will now have both Julius Malema and the impeached judge, Dr John Hlophe, as members only prompts the urgency to change the composition of the JSC with fewer politicians and more from the civil society.

Leave the JSC as is and as Justice Cameron warns competent candidates representing the full spectrum of our demography will not apply.

Apart from using law cynically to undermine the legitimacy of law, all too many politicians promote utterly incorrect descriptions of the law. A discourse which, without rational justification, blames the Constitution for lack of meaningful social and political change increasingly takes hold – take Hlophe’s speech in Parliament where he claims an amendment to s25 of the Constitution holds the key to ensure land reform.

But even a student who had studied property for a law degree would know that s25 is an immensely flexible section. Land reform for little compensation or none is possible under the present s25. Perhaps Minister Gayton Mckenzie was correct when he accused courts of adhering to the Roman Dutch law of property. 

One thing is certain: it is legislative and executive failure that lies at the heart of the lack of land reform progress. And courts under the present Constitution can innovate away from the rigid common law principles of property. But that line does not lead to the destruction of the constitutional system but rather remains faithful to the South African idea of transformation of our common law.

Justice Cameron has provided a timely warning: the advocacy of a minority of lawyers achieves the goal of the ultimate destruction of our constitutional system by using law to destroy law. Such is also the case with a political discourse which seeks to undermine law by ignoring its present transformative possibilities. DM

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