Gauntlett urges lawyers to break their silence

In his must-read speech to the Conference of the Society of Law Teachers, reproduced on the Politicsweb site, he calls for an end to the silence of our lawyers. He warns that the complacency ranges from adjudication through legal practice to the teaching of law. He says, for example, 'it is time to end an approach which is insufficiently rigorous in its scrutiny of the judgments of courts, and how they function'. He bemoans the lack of legal clarity emanating from the courts and points to the statement by Nugent JA in Makambi v Member of Executive Council that various Constitutional Court decisions on the same issue require the courts to go 'in diametrically opposed directions'. He raises the issue of transformation and questions the form it takes. He points out that although countries differ widely, the UK Law Lords had on average 14 years of judicial experience before being appointed to that court while in SA, 'fully six of the 11 members of the Constitutional Court had no judicial experience before joining the court, with the remaining five averaging four years judicial experience each'. And he asks: 'Can it be said that certain of last year's appointments reflect a continuing disregard for discernible judicial excellence?' He also raises a red flag over the output of our top court. 'In 2008, the Constitutional Court heard 22 cases. The Supreme Court of Canada heard 82, the House of Lords 102 appeals in 2005 and 94 in 2006. In each of 2006 and 2007 one member of the Constitutional Court wrote only two judgments, another produced only three in each of 2005, 2006 and 2007.'

He says the silence around the suspension of a vital institution created in international law by members of the Southern African Development Community (SADC) is even worse. He details three well-known examples of the kind of work the Tribunal has done in the short period of three years that it has effectively been functioning, and laments the fact that 'the government of Zimbabwe ... resorted, not unexpectedly, to extra-legal means to circumvent that tribunal'. He says it did so with the support of other SADC members 'while various spurious questions concerning its jurisdiction and the extent of its powers are being investigated. The terms of office of the first appointed judges are being allowed to expire. In more ways than one, the lights have been turned off'.

He also raises the issue of the Legal Practice Bill, noting it provides for the disestablishment of all law societies and Bars, and the compulsory vesting of their assets in and transfer of their staff to a statutory national council. Its members will be appointed at the discretion of the Minister. He urges lawyers to read the text of the Bill and notes: 'Consider that there is no constitutional democracy without independent courts, and independent courts cannot be staffed and cannot themselves function unless there is an independent legal profession. It is an area which does not only concern the practitioners, or the judges, but those of you who see part of your own freedom in teaching law derived from the free and independent legal system in which you need to function.' Full speech on the Politicsweb site