Escalating attacks on lawyers signal deepening justice system crisis

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JEREMY MAGGS: South Africa’s legal community is today reeling after a fatal shooting of a legal practitioner outside the CCMA (Commission for Conciliation, Mediation and Arbitration) in Johannesburg.

It’s an incident, a killing that has sent real shockwaves through the profession and is raising urgent questions about the safety of officers of the court, and I imagine the broader state of law and order.

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The Law Society of South Africa has condemned the attack, warning that violence like this strikes at the very heart of the rule of law. Let’s discuss this in a little more detail. Joining me now is Nkosana Mvundlela, who is president of the Law Society of South Africa.

Nkosana, welcome, and let’s be very blunt, if a lawyer can be gunned down outside the CCMA’s offices, what does that, in your opinion, say about the state’s ability to protect the justice system?

NKOSANA MVUNDLELA: Jeremy, thank you so much for giving us the opportunity to give you more insight about our view in our imagination of what seems to be at play. It is actually a discouraging situation.

It is a very discouraging situation for the legal profession, because members of society should be in a position to appreciate the role of lawyers.

In every other dispute resolution mechanism, the role of lawyers is never to be part of the dispute, it’s actually to facilitate the resolution of the dispute.

So anybody who then targets the lawyers as part of the problem, it tells you of either how inadequate our education system is or how inadequate our information system in the country, or to what extent we are having levels of disregard and wanton disregard for the rule of law in the country, because we cannot be going around killing people like flies.

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Instead of actually accepting that every other process must follow its course, and the lawyers are not the problem in the process.

JEREMY MAGGS: Nkosana, you use the word disregard. You’ve also called this an attack on the rule of law. This goes way beyond rhetoric. Do you believe that we’re now starting to see a real erosion of that rule in practice?

NKOSANA MVUNDLELA: Yes, we are.

If you are able to cast your imagination to what is happening every day in the country, we are sitting with three conditions that are all dealing with situational analysis of whether the rule of law is in full force, whether the Constitution is respected, whether courts are given the opportunity to adjudicate on matters and whether the police are doing their jobs the way they ought to do them, as mandated by the Constitution and every other legislative framework, on the basis of which they must comply with any other situation.

It tells you that we are at the brink of a crisis.

We call upon the Ministry of Police and the Department of Justice to look at measures which can be put in place in order to, one, educate members of the public about the entire concept of the rule of law as it stands, and also to protect the systems that are in place in order to protect third parties, and also the actual participants in those matters.

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It’s similar, in fact, if you were to attack a witness simply because you don’t want them to go and testify. It is an abrasive act that suggests that you are attacking the very core of the reason why that person is going to testify.

That person is going to testify before a judge, or a magistrate, or even a presiding officer in any ADR (alternative dispute resolution) situation, where they are going to give a resolution of the dispute that you have.

We cannot have the rule of law being so abrasively attacked and we sit and fold our arms.

The lawyers, the prosecutors, the police, the magistrates, the judges, and everyone else in society are one of the most important components in the protection and defence of the rule of law.

JEREMY MAGGS: Nkosana, you’re asking for, and I quote, systems to protect the parties. What kind of systems then are needed to be implemented? And I imagine with a degree of urgency.

NKOSANA MVUNDLELA: Essentially, I think we are not doing enough as a country to talk about our constitutional protected right. Generally, we are not talking about that.

We only see that when people are toyi-toying somewhere about lack of water and all these other things. We’re not talking about to what extent are people having access to court? What are the threats that make people not want to go to our courts and so forth.

Secondly, we must be able to improve the level at which the police rebuild their own image as a measure of protection for society, the police themselves are not protecting their image. It’s actually running against what should be a scare imagination for anybody to attack anyone.

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Because if you know very well that the police are doing their work as they ought to, you are not going to commit an offence, knowing very well that they are going to catch you, and when they do, you are going to be in trouble.

JEREMY MAGGS: You talk about the legal profession being on the brink of a crisis. Have we reached the point where we should consider legal practitioners as being members of a high-risk profession in South Africa?

I think I’m asking you the question are we at a tipping point where fear is now starting to shape how justice is practised in this country?

NKOSANA MVUNDLELA: Jeremy, and your listeners, would remember very well that starting last year, just last year and this year only, we have seen prosecutors being gunned down.

We have seen lawyers being shot in their offices.

We have seen this young lawyer being killed at the doorstep of a court, for lack of a better description, or an institution whose job is to resolve problems amongst the employees and employers.

Now, if that is not enough to send a chill down our spine, then nothing will.

Because as a matter of reality, the lawyers themselves are part of that very same dynamic within which we must be able to protect this rule of law we’re talking about.

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Secondly, if you look at the image that is being projected of lawyers throughout, and the numbers of lawyers in the country, it tells you that we are very few and we are under a very serious threat, because people either misunderstand our role or they deliberately choose to use us as a scapegoat in order to avoid certain decisions being made.

Both of these scenarios lead to only one conclusion that we are actually at the risk of anybody attacking us for no better reason, because we are not part of the problem, but we are trying to be part of the solution as allowed by the Constitution.

JEREMY MAGGS: Thank you very much indeed. A very troubling and worrying situation. That is the president of the Law Society of South Africa, Nkosana Mvundlela.