Friday, January 6, 2012

Judging High Court Judges

Dear Judges everywhere,
         First we had advocates judging advocates (see Honesty-a headache for Judge to be).What a farce! All it proved was what a bad idea this is.
If it hadn’t been for the fact that two factions of the Pretoria Bar Council could not agree on what honesty is – something that is elementary even in kindergarten – 13 crooked advocates who ripped off the South Africa Government’s Road Accident Fund might well have got away with token punishments while being allowed to keep their wages of sin totalling millions.
When the ball was thrown into the court of Judges Kees Van Dijkhorst, Piet Combrinck and William de Villiers they listed their qualifications for the job as our long experience as advocates and on the Bench. Modesty prevented them from mentioning that two of them (Van Dijkhost and De Villiers) were previous Chairmen of the Pretoria Bar.
Excuse me Your Honours, but shouldn’t that part about having been advocates be a disqualification rather than a reference? If you were picking a jury wouldn’t you object if three of them had this kind of relationship to the accused?
You were in effect being asked to judge family and there is something terribly wrong with a system that puts you in that position.
And I’m sorry Your Honours but I think you blew you own argument in your judgment when you decided to allow seven of them to go on practicing when all 13 had agreed that they had been dishonest.
From legal history you quoted what was expected of an advocate as defined by South Africa’s Supreme Court of Appeal and you can’t go much higher than that. The preservation of a high standard of professional ethics having thus been left almost entirely in the hands of individual practitioners, it stands to reason, firstly that absolute personal integrity and scrupulous honesty are demanded of each of them and, secondly, that a practitioner who lacks these qualities cannot be expected to play his part.
Did you miss that bit about absolute personal integrity and scrupulous honesty? According to my humble interpretation this leaves no room for dishonest advocates who should all be kicked out of the profession.
Yet you stated that this involved weighing up the conduct complained of against the conduct expected of an advocated and this was a value judgment.
Well it’s beyond me how your value judgment complied with what the Supreme Court of Appeal had to say on the matter.
You effectively turned the English language upside down by telling us there are degrees of dishonesty that can still comply with absolute personal integrity and scrupulous honesty.
You muddied the waters still further by quoting from decided cases. Your first example was that even when an advocated had been found to be dishonest he could escape being struck off if there were exceptional circumstances. But you also said that these decided cases were not binding on a court’s discretion so what was the point of mentioning them.
If one goes on your judgment Your Honours it seems that just being an advocate, especially a Senior Counsel qualifies as an exceptional circumstance. As a layman I would have thought that instead of putting the two Senior Counsel, who were in this rogues’ gallery, into the group that should be allowed to go on with their job, you should have given them an even heavier penalty than the ordinary advocates.
And that’s ignoring the fact that all of them should have been sent packing.
Some of your other references to decided cases indicate how the law pussy foots around when it comes to dealing with its own.
 It is apparently considered unbecoming and disgraceful for those who profess to have knowledge of the law to be ignorant of the laws of the land.
No really. Do you need a court to spell that out? No wonder some advocates have such a problem defining honesty.
And the systematic breaking of the rules to which an advocate subscribes may indicate a lack of responsibility and integrity which is characteristic of an advocate. What only MAY?  And if this case of the 13 is a yardstick Your Honours it is far fetched to describe integrity as being characteristic of an advocate.
It now looks as though the Supreme Court of Appeal is going to be asked to do the job all over again because the General Council of the Bar, the umbrella body for the Pretoria Bar and the other Bars in the country, is taking the matter to this court to have the remaining Magnificent Seven struck from the roll.
Honestly the law’s an ass or is the legal term arse?
Yours faithfully,
Jon, a Barman of repute. 

P.S. Pictured is Senior Counsel Brenton Geach hiding his identity outside court as poorly as he hid his thieving ways. 

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