By Nkateko Nkhwashu

We live in an era of media sensationalism and televised court cases. With all this comes a need for people, as well as institutions (private and public) to always try to ascertain their legal positions in varying circumstances. It is difficult to read a newspaper from start to finish without coming across statements like ‘we welcome the judgment, but we are still awaiting a legal opinion from our legal team before we can proceed’ or ‘we note the passing of the Bill into law, however, we still have reservations about it and we are in the process of seeking a legal opinion from counsel’. There seems to be too much appetite for consumption of this particular (offering of) legal services. This can be said to be good for those with the legal and technical know-how. However, recent experiences have showed that even those with no ‘legal and technical know-how’ want a piece of the pie in this respect.

One case in point is the recent referral of the Financial Intelligence Centre Amendment Bill B33C of 2015 (the Bill) back to Parliament due to certain perceived or potential unconstitutional grounds. Not to get into much detail, but this issue centred around a certain provision dealing with warrantless searches by inspectors in the employ of the Financial Intelligence Centre in their day-to-day duties of trying to ascertain proper compliance with the provisions of the relevant law, namely, the Financial Intelligence Centre Act 38 of 2001.

As a way of trying to deal with these reservations, Parliament then called on all the relevant stakeholders to make representations on the impugned provision (only). In this process Parliament also asked stakeholders to go seek and present legal opinions. Stakeholders then did as they were told and presented same to Parliament. During the process it was alleged that one of the key stakeholders of the Bill did not source their legal opinion from a legal practitioner and the content of such an opinion was not based on legal authority and thus very biased. This then raised the questions of what exactly is considered as a legal opinion and how objective should it be, also taking into account the duty of always trying to secure the best interest of one’s client?

What should a legal opinion entail?

Not to be pedagogic, but this reminded me of some of the remarks of CG Marnewick SC around the same issue. For instance, ‘when advising a client a lawyer should act as an objective investigator’ and ‘considers the pros and cons carefully and give the client objective advice on the options’. Legal opinions are supposed to be ‘objective to the point of being dispassionate’ and ‘are not designed for the process of counselling the client’. Again a legal practitioner should ‘guard against the subconscious desire to provide the client with the advice he or she would like to hear. Be objective and if you have to be ruthless in your objectivity in order to advise the client properly then so be it’.

In essence then a legal opinion ‘is an objective investigation into law. It does not choose a side but analyses the position on both sides and then renders an option which is likely to succeed’. Traditionally, legal opinions are drafted by advocates on briefed facts and directed to attorneys. The receiving attorney will then study the opinion and advise his or her client accordingly.

Considering the above authoritative remarks then that it is justifiable to submit that only those with a legal education, background, expertise and relevant legal experience can then draft a sound legal opinion. This is not something which can be said to be within the realm of ‘arm-chair critics’ or ‘political analysts’, for instance.  It should also be noted that within the space of legal writing we have what is called ‘predictive legal writing’ and ‘persuasive legal writing’. It is important to be able to distinguish between the two as legal opinion (or office memoranda) fall under the former and not the latter.

Furthermore, it is important to have skills in legal research and fact analysis. What this entails is that you have to be well versed in whatever subject matter you are analysing or trying to give an opinion on. Recently and following some of government’s issued notices in an attempt to implement the Financial Intelligence Centre Amendment Act 1 of 2017 (the Amendment Act), there have been some threats of taking the Amendment Act back to court. One key opponent of the Act (through their spokesperson) remarked as follows:

‘[T]he organisation still stood by its previous pronouncement that the Financial Intelligence Centre Advisory Council would give the Financial Intelligence Centre director and banks unfettered and arbitrary unconstitutional powers’ (Lesetja Malope ‘PPF vows to head to court to challenge FICA’ City Press 18-6-2017).

One quick glance at the Amendment Act, one can see that there is no such thing as a ‘Financial Intelligence Centre Advisory Council’. As one example, this then goes on to demonstrate the importance of legal research and fact analysis.

For completeness sake, a legal opinion should set out the following:

• The background.
• The cause (or what led to the opinion being sought).
• Mandate or instruction (and what do you aim to analyse).
• Methodology (for your analysis).
• Analysis (cross referencing to legal precedent and/or authority).
• And a summarised version of your conclusion and recommendations.

Conclusion

In a nutshell, a legal opinion is an objective interpretation of a legal position by a professional legal adviser and not a praise (worship) song or a tool of endearment with one’s client.

Nkateko Nkhwashu LLB (University of Venda) LLM (UJ) Cert in Legislative Drafting (UP) Cert in Compliance Management (UJ) Cert in Money Laundering Controls (UJ) is an advocate at the Banking Association of South Africa. Mr Nkhwashu writes in his personal capacity.

This article was first published in De Rebus in 2017 (Nov) DR 44.