Nomfundo Manyathi (NM): What role do attorneys have in promoting and protecting human rights?

Thuli Madonsela (TM): They have a huge role to play. Part of it is in advising the state appropriately. It is also through pro bono work in cases involving a violation of human rights, particularly a violation of administrative justice.

My office plays an important role in implementing the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The work of a Public Protector is primarily to review administrative action of the state.

I would like to see more lawyers perform pro bono work for group claims. Often when people feel totally emasculated by the state they stage public protests. I think lawyers can assist in guiding people. They could bring the case to the Public Protector or they could take it to court. For example, the people in a particular community can say that a sewerage system in an area is lacking and that the state has failed them and take the matter to the courts instead of protesting and breaking the little that they have.

I think there is a lot of room for lawyers to help people and, during their spare time, to do something similar to street law, whereby people are educated about democracy, human rights and the rule of law.

NM: What is the role of attorneys in respect of your office?

TM: Attorneys play a major role in my office. Their first role is to advise the state. The state involves attorneys every time we take action, even small action. It does not necessarily involve state attorneys but can involve private attorneys.

My request to attorneys is for them to please advise clients with integrity. Do not give your client what he thinks he wants, because sometimes the state also wants a ‘quick win’, which is disastrous in the long term. The idea is to build a government that serves with integrity and fairness to its people as part of strengthening democracy.

Attorneys also play an important role because, when cases are complex, people often go to lawyers to request pro bono assistance to frame their cases. We have found that where people have been assisted by attorneys, they have been able to frame their cases a lot better and attorneys sometimes bring insights that we may not have picked up on.

There are sometimes lawyers who tell the state not to compensate in a case because the Public Protector does not have the power to order compensation. However, s 182(1)(c) of the Constitution clearly states that the Public Protector has to take appropriate remedial action.

I think the good lawyers are the ones who have told the state that if it does not like what I am saying, to take my office on review. It shows that they respect the rule of law. I am happy to be taken on review because I can justify every decision that I make.

NM: Do you receive complaints about attorneys? If so, what kind of complaints?

TM: Yes, I receive a lot of complaints about attorneys. These usually relate to two aspects: One is in respect of delays in processing cases or in cases reaching the courts; the other is about the quality of work. The complaints against attorneys relate to professional conduct.

The majority of cases deal with money that has not been transferred to clients. At the moment I have a case dealing with the Road Accident Fund (RAF). According to the complainant, the RAF paid out money but the attorney informed him (the complainant) that the amount had not yet been paid. After the RAF confirmed that the money was paid, the attorney informed the complainant that the money was paid but that the full amount paid was for legal fees.

These are the types of matters that the [relevant] law society has to handle. The question is: Who would claim from the RAF if all they are supposed to get are attorney fees?

Attorney complaints are outside the scope of the Public Protector; we refer complainants to the [relevant] law society or to Legal Aid South Africa to provide them with a state lawyer to act against the private lawyer.

In respect of the RAF matter referred to above, I asked my office to get involved because I look at state affairs – which include the RAF.

As an ombud, my office will have discussions with the RAF and look at a win-win situation. We would like the lawyer’s portion to be identified when the RAF releases the money. For example, if the client is being given R 6 million, the RAF document should state that, of the R 6 million, R 2 million is for the attorney and R 4 million is for the client, so that there is no question of the attorney taking the lion’s share.

We also do not want the attorney to be cheated because if the RAF pays the money to the complainant, the complainant may take all of the money. In fact, the RAF could ask the attorney for the claimant’s bank account so that when it pays, it can pay the shares into two bank accounts after the attorney clarifies what his fees are and what they are for. That would be a win-win situation for everyone.

The last case that we are dealing with that relates to attorneys involves the allegation that attorneys, sheriffs, estate agents and others are colluding to cheat poor people out of reconstruction and development programme homes.

Lawyers in South Africa have been part of the forces of good; we are where we are because a lot of good lawyers sacrificed a lot to put us where we are. But there are a few real ‘sharks’ at the moment that are destroying our people, and those ‘sharks’ are giving lawyers a bad name. We know that they are not in the majority.

Lawyers need to act decisively, even if the ‘sharks’ are powerful lawyers. I think they need to tell their colleagues that they cannot rob the poor as they have already been robbed by life.

NM: What is your view on the proposed legal services ombud as provided for in the Legal Practice Bill (B20 of 2012)?

TM: The question is: How is it going to work? It is going to be important that the ombud is as far away from the state as possible. We do not want the ombud to be abused by any particular role player. I think it is a good idea if it is implemented appropriately.

NM: What is your opinion of the Legal Practice Bill?

TM: I have not had a chance to look at the current version of the Bill but it is one of two Bills that I am planning to read as soon as I can. The idea of the transformation of the legal profession is a sound idea. It must be done in a context that respects the independence of the profession because it is a very important pillar of democracy and the rule of law. It has to be transformed and the transformation should also facilitate more routes for entry into the profession by people from historically disadvantaged backgrounds. When it comes to the Bar, it is very difficult for women to enter the profession because of the way the Bar is currently structured.

For attorneys, it is a bit better; but even then you still have to get articles or an opportunity to serve as a candidate attorney, and it is not always easy to do so. Ideas need to be implemented to make sure that there is easier access.

It is going to be important that we are more reflective on change. I was part of a group that worked with former Justice Minister Dullah Omar in the early years of our democracy to reduce the number of years someone needs to train as a lawyer, but I am now among the people who are saying it was a bad move. I think that the system in the United States that requires you to study a first degree initially and achieve a certain level of maturity before you do your law degree is a better one and, as a result, I think some universities are now encouraging law students to do a masters degree before they can go out into the field. Those were some of the mistakes we made by only looking at what we found and focusing on the frustration caused by too much gatekeeping. We then open the gates, but in opening the gates sometimes we then open the floodgates. How do you strike that balance? I cannot provide answers but people need to think a little bit more carefully about unintended consequences of good actions.

NM: What challenges are there for the rule of law in a country with huge economic disparities and where access to the courts and the legal system is still difficult for the majority?

TM: I think the biggest challenge to the rule of law will always remain the fact that our law is inherited.

The majority of people still struggle to relate to Roman-Dutch law and they also struggle to relate to someone winning a case on technicalities. Part of the challenge is that law is slow to evolve; other disciplines such as medicine are not sitting where they were during Plato’s time. They have moved on and have embraced science. Law is a little bit difficult to move.

The challenge for us as lawyers is not to assume that the adversarial system of justice with its technicalities is the end. I think that it has served us well because the alternative is chaos, but it does not provide a full answer.

The biggest impediment is that there is a poor understanding among people about the legal system, which does not resonate with their day-to-day lives. Added to that is the fact that the system is complex; people do not understand it and it is expensive. People feel that the innocent go to jail because they do not get good legal representation because of the cost.

You get people who think that the legal system is not fair and that justice is only for the rich, which is not true. As lawyers, we know that the truth is much bigger than that, but people will only judge the system by their own ‘one-time experience’. If it fails them during that experience, they think it is wrong and that is the challenge.

NM: What role can your office play in alleviating the situation?

TM: The Public Protector can play a role in that it is a civil law invention. As a country, we are a common law jurisdiction, while our office is inquisitorial. You are not stopped because what you are saying is irrelevant or because you have not framed your case appropriately; you just come and tell us what the problem is as you understand it in your most basic words; we then take it and re-frame it because we are the ones who have to make sense of it and interpret the law.

The Public Protector has to look for the law. Our approach is always to consider what happened and what should have happened. It is our job to find out what should have happened even if the complainant does not tell us which law was violated. Sometimes the complainant does not know who violated the law.

We also have partnerships with lawyers in terms of which they investigate for us or, depending on our budget, we ask attorneys for legal opinions, which we pay for.

The Public Protector is not about who is mightier; complainants can come as bare as possible but if they have a good case and our legal team is not well versed in that area of the law, we ask lawyers to give us opinions. We only deal with the wrongs of the state and do not have jurisdiction over the wrongs of private persons unless committed within state affairs.

NM: You have spoken about a paradigm shift required for people to accept your office as an additional avenue for achieving justice and accountability – please can you elaborate on this and on how attorneys can assist in this regard.

TM: Attorneys can assist in their own dialogues with the state. I made that statement in the context of people saying: ‘You are not a court of law, so we do not have to implement your decisions,’ and that is the wrong paradigm. Firstly, it is not true that only courts can tell us what to do; traffic officers tell us what to do, the National Consumer Commission tells us what to do (and it is not even a Chapter Nine institution).

Lawyers need to be candid and say: ‘This structure is in the Constitution and it has now spoken. Our job is to scrutinise the decision and to look at the cogency of the reason behind the decision and if we find it wanting, then let us take the Public Protector’s office on review.’

I would also like lawyers to get involved when the state refuses to implement decisions. They can assist complainants who are left empty-handed to take the state on review for failure to implement. Because it is wrongful administrative action, they can take the state on review on the basis of PAJA or on the basis of s 33 of the Constitution and claim that it is unjust administrative action. The state cannot be a judge in its own case and say: ‘I do not like the decision of the Public Protector; I am therefore going to sit on it.’

NM: You are sometimes faced with the question ‘who are you to tell us what to do?’ How do you usually answer that question?

TM: I always say: ‘It is not about me; it is about the office that was consciously created by the architects of our constitutional democracy. If you ignore me, you are not undermining me as a person but you are undermining the authority of the Public Protector and indirectly undermining democracy.’

When people are unhappy with the state they become disruptive. This happens when that bond between citizens and those entrusted with public power is broken. They start becoming edgy and they do destructive things. Having a Public Protector and other institutions supporting democracy heals that bond whenever it starts breaking.

When direct accountability between the citizens and the state is not working, we contribute to mending that bridge. If you ignore that bridge, you are rendering us useless. It may serve your personal selfish needs in the short term but in the long term it destroys democracy. If you ignore us when we say there has been corruption or there has been an abuse of state resources, soon there will be no resources to work with, as is happening in some of the sectors where huge amounts of money are invested but where there are no returns on that investment. In a parochial way, people feel that we are an irritation when we are in fact a friend.

NM: How can the fact that your budget comes from government through the Justice Department affect your office or be problematic in terms of independence?

TM: It is a question of perception. The Justice Department never interferes with our budget. I think the conduit is distorted because when treasury looks at how much it is investing, it looks at how much it is investing in the justice system. It has never looked at how much it is investing in Chapter Nine institutions. Somehow we come into the justice budget as a footnote, not because justice wants us to be in the footnotes, but because the Justice Department is about justice and constitutional development. There is a perception that if you have a case against the Justice Minister and I decide that there was no wrongdoing by the Minister, you will not feel absolutely certain that there was no wrongdoing. I understand that parliament and treasury have in principle now decided that we will get our own budget directly and that it is now a question of mechanics.

NM: What will you do when your seven years as Public Protector are up?

TM: I see myself doing three things. I will use the first year or so to write about my own learning and growing as a professional. I will write about that and about the institution, its value to our society and its potential in strengthening democracy – not just in our country but on our continent as well.

I hope that I will go back to lecturing. My interests are constitutional law, human rights, administrative justice and equality.

Lastly, after the first year or two of writing, I would like to go into practice and, who knows, if the judiciary will have me, hopefully I can join it. I would love to be a judge.

This article was first published in De Rebus in 2012 (Sept) DR 26.