South Africa’s legal profession – both public and private, certain law firms and some judiciary members have been key enablers in state capture, and legal professional associations urgently need to launch an inquiry into the conduct of their members.
Almost the entire value public legal value chain is systemically corrupt: parts of the police, investigation authorities, crime intelligence, and public prosecutions. The criminal justice procurement system has been captured. There has been a “capture” of appointments to the public legal system through cadre deployment, whereby politically connected ANC deployees, often without the requisite skills, are appointed to key positions, leading to legal public policy capture, incompetence, and corruption.
There has been a “capture” of “transformation” debates purely for self-interest. 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” (Thamm 2021). Yet, in 2021 the Judicial Service Commission found that Judge Hlophe tried to influence Justice Bess Nkabinde and Justice Chris Jafta in the case they presided over. Former president Jacob Zuma was accused of corruption with French armaments company Thint (JSC 2022).
Figure 1. Broken Criminal Justice System
How does a country’s political, business, and market culture influence whether companies, professionals, and ordinary citizens engage in corruption
A country’s political, business, and market culture determine whether companies, professionals, and ordinary citizens may be tempted to engage in everyday corruption. In a country with a monopoly liberation movement such as the ANC, which has been in power for a long time, the governing party’s culture also dominates the state, business, and market culture of the country (Gumede 2017).
The ANC is systemically corrupt. The ANC governs the country as a party-state, where the party and the state have become almost the same; the South African state has also become systemically corrupt (Gumede 2012). Because the ANC and the state are systemically corrupt, many of the country’s private companies, professional firms, and professionals, particularly those having to engage with the corrupt state, may themselves mimic the corrupt culture of the ANC and the state. Or at least uncritically accept it to fit in secure state contracts and positions.
Companies, professional firms, and professionals may fear that they will lose their competitive advantage and will not get contracts if they do not pay bribes. This is the so-called “prisoner’s dilemma”. The company, professional firm, and professional that does not do bribery, will lose out on contracts if every other company bribes in return for contracts (Poundstone 1992; Alexander and Plotkin 2013).
Failure of self-regulation of the legal profession
The legal profession is self-regulated. Self-regulation generally focuses on setting standards for the profession, teaching how these standards should be implemented, and enforcing the implementation of these standards (Bertkau, Halpern, and Yadla 2005).
However, in many cases, self-regulation has failed spectacularly in the legal profession. Professional legal associations – such as the bar associations, oversight organisations and peers have spectacularly failed to uphold the ethical, professional and behaviour standards of their members. In fact, these peer oversight organisations have been slow in disciplining, debarring and penalising unethical legal professionals and firms.
Professional associations set basic standards of behaviour for their members. They generally have ethics codes, which provide a set of standards for conduct for members of the profession that issues the code. They also enforce the implementation of the professional standards – and discipline those members who overstep. Society generally views trusted professions, such as the legal profession, auditors and medical professionals, with higher regard because they hold positions that exercise public trust.
One of the reasons why these professions have entry examinations, professional associations and formal standards of conduct is to set basic principles of good 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 shareholders, customers or patients.
Therefore, society views ethical failures, corruption and indifference by these respected professions with more alarm. State capture cannot happen on the scale it has, without connivance between the corrupt politicians, public servants and oversight organisations, without the collusion with legal professionals, auditors and bankers.
The phenomenal rise in corruption by trusted professionals shows that South Africa’s integrity ecosystem, the overarching societal frameworks of laws, values and institutions established to combat corruption and ensure probity and accountability has collapsed (Gumede 2019).
Widespread ethical failures in the legal profession
Early last the month, the Road Accident Fund (RAF) said it would name the law firms that have, over the years, unfairly and corruptly made a fortune out of accidents while victims struggle for compensation and, when they do, get very little (Nkosi 2022). Last year, the RAF wrote to the Legal Practice Council to launch a complaint against over 100 law firms over duplicate payments paid to these firms by the RAF (Nkosi 2022).
Last year, the justice, health and police ministries announced a nationwide investigation into state attorneys and private legal practitioners accused of siphoning over R80bn from the government through collusion, fraud and corruption (Nicolson 2018). Public prosecutors are regularly arrested or convicted for corruption, like the case in 2021, when the Camperdown Regional court handed down five-year imprisonment to former KwaZulu Natal prosecutor Zanele Molefe for corruption, theft and defeating the course of justice (SA News 2021).
Many legal professionals have been accused of criminal cases, paying bribes to police investigating cases and to prosecutors to secure bail for or drop their clients’ cases. Others have been guilty of abusing client trust funds. Last year, Eastern Cape attorney Sandile Majavu was sentenced by the Mthatha Regional Court to an effective 10-year jail term for stealing more than R1.8 million from his clients after pleading guilty to four counts of theft (Dayimani 2021).
Corruption Watch, the anti-corruption civil society organisation, regularly receives reports from whistle-blowers exposing corruption by legal practitioners. A typical case was one where a control prosecutor, through which all new cases pass through and who makes decisions about whether to prosecute or not, was regularly bribed by lawyers on behalf of their clients to have cases withdrawn (Corruption Watch 2013).
“Many cases which are supposed to be prosecuted and with good prospects of success are withdrawn. Most lawyers pay, and the control prosecutor returns the favour by withdrawing their cases. There are lawyers that will never be seen in court representing their clients” (Corruption Watch 2013).
The magistrate courts have been particularly under the spotlight for incompetence and callousness to ordinary citizens and high levels of corruption. Cases like the one in 2018 when a Carletonville magistrate was arrested for allegedly soliciting a bribe are increasingly common (Shange 2018). The most recent Afrobarometer survey showed that 32% of ordinary citizens say that most or all magistrates and judges are corrupt (Afrobarometer 2018).
There have been attempts to capture the appointment to the judiciary, including the appointment of the Chief Justice (Lamola 2022). Legal professional associations, oversight organisations and peers have been very slack in policing conflicts of interests among legal professionals, including those sitting on the JSC who appoint judges. Legal professionals attacking the judiciary should be disqualified from sitting on the JSC. Legal professionals representing clients in cases presided over by judges being interviewed for bench positions by the JSC should also not be part of the interviewing process.
During the interviews for the Chief Justice, Dali Mpofu, for example, had an apparent conflict of interests in having represented former President Jacob Zuma after he failed to appear before the Zondo Commission and was then jailed for contempt of court (Gumede 2022). Legal professionals and peer associations should police such conflicts of interest.
The corruption of legal professionals and oversight organisations has contributed to the profession’s spread of corruption. In many cases, supposedly independent legal professional and oversight authorities have been staffed by corrupt, incompetent and uncaring ANC cadre deployees. Honest professionals in such associations are often hounded out (Gumede 2019).
An unethical corporate culture of law firms
In many cases, the business cultures of many professional law firms have also begun to mirror the corrupt culture of the ANC and the state – with whom they are doing business (Gumede 2021). In some law firms, unethical behaviour has become normalised. In fact, in many cases, corruption is institutionalised.
Blake Ashforth and Vikas Anand (2003) make a case for three mutually reinforcing behaviours that normalise corruption in companies. These are: “institutionalisation, where an initial corrupt decision or act becomes embedded in structures and processes and thereby routinised; rationalisation, where self-serving ideologies develop to justify and perhaps even valorise corruption; and (3) socialisation, where naive newcomers are induced to view corruption as permissible if not desirable” (Ashforth and Anand 2003).
In companies where corruption is normalised, “corrupt individuals tend not to view themselves as corrupt” (Ashforth and Anand 2003). Many employees “self-rationalised” a “denial of responsibility, denial of injury, denial of the victim, and an appeal to higher loyalties (such as loyalty to co-workers)” (Taylor 2006: 3; Heffernan 2011). Because of such “self-rationalised” behaviour within corporate environments, when corruption has become normalised, “individuals engage in corruption that would otherwise violate their internal moral framework” (Taylor 2006: 4).
Often metaphors are used for incidents of corruption, or it is given acceptable sounding line-item names. Research focusing on organisational behaviour points out that corruption in firms could either be carried by employees to benefit the company, benefit themselves, or benefit both the employee and the company (Pinto 2008).
Many South African law firms appear to have corporate cultures which put profits above everything else, no matter how it is achieved, which gives ample incentives for corruption. Furthermore, many law firms appear to have high incentives schemes that demand overly high targets, which also incentivises employees to engage in corrupt practices to achieve targets (Taylor 2006).
Alison Taylor (2006:4), in her research on firms, found that “corruption seems most likely in organisations where growth is a fetish, insecurity is rampant, and high performance goes unquestioned”. Typically, those who reach the excessive targets with little regard for ethics are often hero-worshipped in such firms. In such firms, “rules and processes to promote integrity may be selectively enforced and easily evaded” (Taylor 2006: 4).
Many law firms also appear to have an organisational culture where “the ends justify the means” is acceptable and often see high incidents of corruption. “Employees may face sales targets higher than industry peers, justified by the need for market dominance at any cost” (Taylor 2006: 5).
The kind of leadership at a firm also determines whether corruption will proliferate. Unethical, rule-breaking and secret corporate leaders are likely to encourage employees to behave the same also – and organisational cultures will take roots which accepts corruption as the way things are done (Ashforth and Anand 2003; Schein 2004; Pinto 2008).
Many law firms have weak corporate governance – with ineffective boards which do not hold legal practitioners properly accountable; or some cases, weak boards, combined with strong CEOs, who are rule-breaking, growth at all costs focused and who do not tolerate alternative views, are fertile corporate environments for corruption, unethical behaviour and moral lapses.
Changing the corporate culture of law firms – from focusing on profits at all costs to more sustainable goals- is crucial to slash corruption. Law firms must introduce stricter strict internal compliance, risk and client-supplier interaction rules – and evaluate these regularly to ensure effectiveness and relevance. Law firms must protect whistle-blowers, who are crucial in uncovering corruption. Whistle-blowers should be given amnesty and provided with anonymity, rather than hounded as is often the case.
Many law firms argue that while government and everyone else behaves in this way – corruptly, we better do the same; or face losing out on lucrative government contracts. Law firms must come together to make collective agreements not to act corruptly – and for companies to stick to such agreements – and shame firms that do not adhere to such ethical behaviour agreements.
Need better oversight by legal civil society organisations
Given the very corrupt state of government, regulation by the government of legal professions is unlikely to be better. Legal professional associations, oversight organisations and peers must play a more significant role in holding their members and firms accountable for corrupt behaviour.
Legal professionals must also hold their peers more accountable – publicly criticise unethical colleagues and shun them. Processes of disciplining, debarring and penalising unethical legal professionals take too long. The JSC disciplinary case against Judge Hlophe took years to be finalised – undermining the judiciary’s reputation. The slackness by legal oversight organisations to hold their members accountable has meant that victims of legal malpractice are increasingly using the courts to hold legal professionals accountable for unethical behaviour. The government, the private sector and citizens, should not do business with legal professionals and firms who have been proven to be corrupt.
Law firms found to be guilty of corruption must pay reparations in fines, which should be given to anti-corruption, social justice causes, civil society and communities. Legal practitioners and law firms must play a role in providing legal support to victims of corruption. There must be a change in professional firms’ focus on profits at all costs towards more balanced, ethical and sustainable profit targets.
Legal professional associations are crucial civil society organisations. There is an absence of civil society organisations specifically holding the legal professions accountable, representing the public interests in cases of legal profession wrongdoing. Civil society must play a more proactive role in ensuring legal professionals, law firms, and public regulators hold legal professionals and firms publicly accountable for unethical behaviour.
South Africa’s legal profession – both public and private, certain law firms and some judiciary members have been key enablers in state capture. Without the legal profession’s willing collaboration, the complete capture of the state by corrupt elements, as exposed by the Zondo Commission of inquiry into state capture, would not have been possible.
The legal professional associations, peer organisations and oversight institutions have been lacking in holding their members accountable for wrongdoing, unethical behaviour and corruption. South Africa’s legal professional associations, peer organisations, and oversight institutions must institute a public inquiry into the involvement of legal professionals in state capture, unethical and criminal behaviour, clean up systemic corruption within the profession, and restore the profession’s reputation.
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This is and edited extract from DWF Executive Chairperson William Gumede’s keynote address to the 23 March 2022 Annual General Meeting of the Law Society of South Africa, Johannesburg.