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Lockdown lawyers should be praised – not condemned

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Stephen Koen is a litigation attorney who was admitted in 1987. He works in many fields, including public and administrative law. He is a senior litigation partner in the firm Bisset Boehmke McBlain and served as an Acting Judge in the Western Cape Division of the High Court.

Lawyers who think they are above the law – that was the description of a group of legal eagles who were reprimanded after appearing in court without having permits to break the lockdown. But at least one attorney doesn’t agree.

It was a remarkable judgment by Braukmann AJ (now under appeal). A number of advocates and attorneys were roundly chastised for having breached the lockdown regulations by travelling to a court in Middleburg, apparently without the necessary essential service permits. The judgment drew praise from many sources, including a prominent Daily Maverick opinionista, Pierre de Vos

The judgment was applauded by De Vos because it served “as a warning to other lawyers who believe they can take short cuts for no reason other than that they are lawyers”. The judge’s description of the conduct of the lawyers as being “unprofessional” has been widely publicised. 

There can be little doubt that the utterances of Braukmann AJ have come at enormous reputational and human cost to the lawyers in question, apart from the fact that the judge imposed financial penalties on them by prohibiting the charging by them of fees and disbursements.

Let’s examine the facts. Reading between the lines of the judgment, as one must do because it tells us precious little about the case itself, the matter concerned the disruption by the respondents of the supply of water by the JS Moroka municipality to its community. The case was brought urgently, and it was urgent. This is obviously so because having access to potable water for drinking and hygiene is not a luxury which can be indefinitely deferred. And we know that the judge had no quarrel with the fact that it was an urgent case because he tells us that he “deemed the application extremely urgent” and that he “did not want the residents” of the municipality “to suffer one further day”. 

On 31 March, the day of the hearing, the judge appears to have asked the lawyers to show him their essential service permits. During the morning the lawyers for the parties settled the case, produced a draft court order, and asked Braukmann AJ to make the draft an order of court. He did so, but added an ominous rider – although he says this was not recorded in writing – that he would “deal with the presence of all legal practitioners in court on the day of the hearing in a separate judgment at a later stage”. He did so a few days later, on 3 April, and thus was born the ruckus. 

Little thought, however, seems to have gone into the question whether Braukmann AJ had any business in delivering the separate judgment, and whether or not it is of any precedential value at all. We all remember the spat between the National Director of Public Prosecutions and former president Jacob Zuma, about the former’s decision to criminally charge the latter. Nicolson J set the decision to charge Zuma aside. Importantly, even though it was agreed by all the parties to that case that the case had nothing to do with the question of whether or not “political meddling” had been a factor in the decision to charge Zuma, Nicolson J went into this issue at great length in his judgment. His judgment had far-reaching consequences and was undoubtedly a major factor in the recall by the ANC of president Thabo Mbeki and the succession in his place of president Zuma. Judgments do have consequences, even ones which later turn out to be wrong.

The matter went on appeal to the Supreme Court of Appeal. Judge Harms, the Deputy President of the Court, wrote the judgment. He took Nicolson J to task, reminding judges that “in exercising the judicial function judges are themselves constrained by the law”, and that judges need to “confine their judgment to the issues before the court”. Judges cannot decide matters which are not relevant or “make gratuitous findings against persons who were not called upon to defend themselves.” Judges cannot “pontificate or be judgmental especially about those who have not been called upon to defend themselves”. They have to limit themselves to the issue they are called upon to decide.

Of course judges are entitled to personal views like the rest of us. But they may not, said Harms DP, “inject their personal views into judgments”, or overstep their authority. Harms DP went on to observe that the “very independence of the judiciary depends on the judiciary’s respect for the limits of its powers”.

Braukmann AJ could, with more than some justification, be criticised for overlooking the limits of judicial authority. Save for the question of whether or not to make the draft order an order of the court, he had nothing to decide because the parties had settled the case. In any event the matter had absolutely nothing to do with essential services permits. 

Even worse, there is nothing in his judgment to indicate that he warned the lawyers, who were later so harshly disparaged, what he was about to enquire into, or that he gave them a chance to say anything in their defence (in the application for leave to appeal, they say he didn’t). All this is pretty basic, but was overlooked. In the result the judgment is not only obiter, as De Vos recognises, but of inconsequential, if any, practical value to lawyers and citizens alike.

In the result, great damage has been done to the profession, and particularly to the lawyers who were doing nothing more than their duty in representing their clients in an important and urgent case about a real and pressing issue. 

Instead of being publicly lynched, the lawyers should be commended for going about their work and protecting the rights of their clients in trying times. Their widespread public condemnation is regrettable. 

One hopes that the pending appeal will set the record straight. DM

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