THE FUTURE OF LEGAL PRACTICE IN ZIMBABWE—A BIRD’S EYE VIEW. HOW DO YOU STAY AHEAD?
A paper written for and presented at the Strategic Retreat for Messrs. Kantor & Immerman
Tererai Mafukidze
1/22/2011
Imba Matombo, Harare, Zimbabwe
Not for publication
Table of Contents
Table of Contents. 2
“THE FUTURE OF LEGAL PRACTICE IN ZIMBABWE—A BIRD’S EYE VIEW. WHO DO YOU STAY AHEAD?” 4
Introduction. 4
Is Law a Business?. 6
What is the legal landscape going to be like?. 9
An international perspective. 10
Globalisation. 11
Communication and Technology. 12
Shareholder drive for higher profits. 15
The Unhappy Young Lawyer 16
Advertising prohibition. 16
Tendering for services. 17
Sharing risk with clients. 18
Restricted business forms for lawyers. 19
Multi-disciplinary Practices. 19
Developing new skills, new and innovative services. 21
Teamwork. 22
Fees. 23
The Scourge of the Billable Hour 25
The Courts, Litigation and Justice Delivery. 27
SUMMARY OF THE FUTURE.. 28
How do you stay ahead?. 29
External Analysis. 29
Branding. 30
Price or should I refer to it as fees. 31
Place/Distribution. 32
Promotion. 32
Communications Planning. 32
Contagion. 33
And so what are the current realities in marketing?. 34
Recruitment of lawyers. 36
Firm management 37
Specialisation. 38
The Courts and the Legal System.. 40
CONCLUSION.. 41
Bibliography. 43
“THE FUTURE OF LEGAL PRACTICE IN ZIMBABWE—A BIRD’S EYE VIEW. WHO DO YOU STAY AHEAD?”[1]
By TR Mafukidze[2]
Introduction
It is for me a great pleasure to come and speak to you about the future of legal practice in Zimbabwe, and how you can stay ahead. As some of you know, I ran away from the private practice of law after only three years. Maybe you need one who is not immersed in the subject to tell you how it looks from out here. As Lord MacMillan put it;
‘The Lawyer does well from time to time to lift his eyes from his desk and look on the wider world beyond.’[3]
Peter Williamson (2003), the then President of the Law Society of England & Wales expressed his own fears about the legal profession’s failure to adapt to change as follows;
‘If this profession does not adapt itself and fall into line with what the consumer of the 21st century wants from legal services...(be it litigation, conveyancing, wills or whatever) it will be done some other way. We have therefore to adapt, and it is no good standing and saying that we have traditions, and the way we have always done it is best. That is a recipe for disaster for this profession.’[4]
I have been asked to look into the seeds of time, and tell which seed will grow and which will not. It is a hard prediction to make. The wrong predictions one makes will live after them. People love to remember the wrong predictions. Yet, my task is less onerous than that of a fortune-teller.
I have been asked again to educate you on ‘how to stay ahead’. This latter part is pregnant. It assumes that you are ahead—and so desire to just stay ahead. I will not argue whether you are ahead or not. I will go with your assumption, for now.
The world has changed dramatically over the last 10 years. It continues to change. I can do no better than to agree with Leonard S. Janosky when he stated 30 years ago that;
‘No profession will long exist if its members spend their time in rearguard action fighting for past methods that are no longer responsive to need or economically sound. A profession whose leadership is primarily concerned with maintaining the status quo and building protectionist rules and tariffs is a deteriorating profession.’[5]
Is Law a Business?
Talking about law as a business is frowned upon by many lawyers and judges. To refer to a law firm as a business is considered a heresy. ‘This is a profession and not a business’ goes the frequent retort. But business simply means the investment of human effort for profit. Law is a business. You can never be successful as a law firm unless you treat your law firm as a business. By business, I do not mean that you should ingest many of the unscrupulous business practices that infest our business community. No. Yours is a higher calling that demands different standards of conduct. But never fool yourself. If you do not run your law firm like a business you are set to fail. At the same time, the profession is there to serve the community. This is why lawyers are some of the few members of professions that are required by law to render their services for free in certain circumstances.
Learned friends, despite the often glowing and heart-warming description of the practice of law, throughout the ages, from William Shakespeare in Henry VI to Mario Puzo in the Godfather,[6] lawyers have been accorded the most callous of reputations. Sometimes, they have been called by the names of nature’s greatest predators or its most unashamed scavengers. In recent times they have been called some of the vilest wealth-seekers.
Jonathan Swift was similarly scathing when he defined lawyers’ thus;
‘Lawyers, a society of men, bred up from their youth in the art of proving words, multiplied for the purpose and in a jargon of their own that no other mortal can understand that white is black and black is white, according as they are paid.’[7]
But there are some redeeming voices. Justice O’Connor of the United States Supreme Court said it eloquently in Shapero v Kentucky Bar Association in the following words;
‘One distinguishing feature of any profession, unlike other occupations that may be equally respectable, is that membership entails an ethical obligation to temper one’s selfish pursuit of economic success by adhering to standards of conduct that could not be enforced either by legal fiat or through the discipline of the market. There are sound reasons to continue pursuing the goal that is implicit in the traditional view of professional life. Both the special privileges incident to membership in the profession and the advantages those privileges give in the necessary task of earning a living are means to a goal that transcends the accumulation of wealth.’[8]
I may add that the American justice was opining this in the minority in a judgment dealing with restrictions on lawyer’s advertising in the State of Kentucky.
In his speech, ‘Examining Values’, delivered to the Australasian College of Surgeons,[9] the then Chief Justice of Australia, Mr. Murray Gleeson, noted that there is a world of difference between a profession and a business. In his view, the difference lay in that ‘professional people accept certain restraints on their capacity to pursue personal gain -restraints that go beyond the requirements of honesty and fair dealing that are accepted by decent people in any occupation.’
This is true with the legal profession in this country. The legal profession carries exacting responsibilities in our pursuit of a society that is free and open, where every person enjoys their human rights. The legal profession must be in the service of the public. For that reason, those who are called to serve in the legal profession are expected to serve with the highest standards of professional conduct. The highest standards of ethical conduct lie in the ability of lawyers to maintain the values that underlie the practice of law. The maintenance and sustenance of these values is a matter of great concern to us all. These values are honesty, integrity, sense of public duty and the desire to see justice done according to law. But professional values are constantly under strain. As Justice Gleeson put it;
‘The rules of professional practice, which impose restraints on the pursuit of self-interest, cannot be sustained merely by custom. This is an age that questions every rule and challenges every authority. Those questions and challenges cannot be met by an appeal to tradition. Tradition cuts no ice. Self-interest is clearly understood; but I am talking about restraints on the pursuit of enlightened self-interest. How can they be explained? They can be justified only in terms of values; and if the values are not shared, the justification carries no weight. It all comes back to values. That is the common challenge to our professions: to identify and maintain our values.’[10]
It must be emphasised that the legal profession is built a foundation of moral responsibilities. Legal ethics and professional responsibility are not mere rules. They ‘are also a commitment to honesty, integrity and service in the practice of law.’[11] While the practice of law is indeed done with an expectation of earning a reasonable income for the service, the legal profession can never be regulated as if it were another business in the service industry. Lawyers are not mere agents of the clients who have employed their skill and knowledge. They ‘are involved in the administration of justice according to law, a function on which a free and democratic society depends.’[12]
I must say something about the commitment to public service. We are a country of great of huge inequalities. Many of them are historical, and many we have manufactured for ourselves. Despite the strides we have made in seeking to bridge the gap between those that are wealth and citizens who live in constant deprivation, a lot of work remains. The differences in wealth are reflected no less in the challenges the poor face in accessing justice and, with that, access to legal advice and representation. The cost of accessing the legal services is prohibitive. The legal aid services are not working efficiently and cannot accommodate everyone. If I may borrow from Sir Anthony Mason, unless the legal profession ‘dedicates itself to the ideal of public service, it forfeits its claim to treatment as a profession in the true sense of the term. Dedication to public service demands not only attainment of a high standard of professional skill but also faithful performance of duty to client and court and a willingness to make the professional service available to the public.’[13]
But learned friends, can any lawyer meet these responsibilities on an empty stomach?
What is the legal landscape going to be like?
An international perspective
The leading law firm Eversheds have studied what they have termed ‘the client’s revolution’. They have published two reports entitled the Law Firm of the 21st Century. The second of the reports was published was as an analysis of the post-recession legal sector in 2010. The report is highly recommended. In his foreword, Bryan Hughes, the Chief Executive of Eversheds LLP notes;
‘General Counsel (corporate lawyers) are under pressure to deliver more for less. In turn, they are demanding reduced costs and greater value from the legal advisers. Quite rightly they want accountability when it comes to how their budgets are being spent and more imagination when it comes to fee structures. For law firms this has meant facing up to the challenge and change. Whilst some are holding fast, hoping that the boom times will return soon, the smarter ones are adapting for the longer term.’[14]
Eversheds identify four main drivers for change, namely globalisation (look east), increasing professionalism and status of General Counsel (corporate lawyers), technology and the Legal Services Act in the UK. According to Eversheds the ‘aftermath of the perfect storm’ is a revolution whereby the stakeholders in the legal market are properly aligned. These are their findings;
· Clients take centre stage- ‘balance of power shifts to clients and the legal sector enters the modern world; fee levels are set for long-term overall decline or stasis; General Counsel have increased status and expanded role in business’[15]
· Delivery of legal services is geared up to efficiency and value: ‘recession drives efficiency; legal services are increasingly unbundled, also contributing to efficiency; strategic resourcing through outsourcing and technology dramatically increased; the hourly rate is simply one billing tool among many; value enters the client-lawyer relationship through increased use of value billing and the development of value resourcing.’[16]
· Law firm market in flux: ‘law firm peer groups and categorisations re-align; less premium work means there is a new optimal size for large international law firm with less headcount and lower leverage; moderate growth will continue for mid-sized firms, at least in the medium term future; loyalty to partnership model continues to decline; other models develop; UK law firm leaders begin to see opportunities in the LSA.’
Globalisation
Firstly, no matter how much we parrot ‘sovereignty’, we are not an island. We will never be an island. The winds that blow in China, India, Brazil will find their way through our borders. Global business is having a huge impact on the way we provide services and manufacture products. Today, business seeks the cheapest sources of labour. We are constantly buying goods made in China and Vietnam, despite them carrying genuine iconic American logos. Accounting and consulting firms have opened offices across the entire globe, or have their presence through other means. Big law firms are doing the same. Consulting firms have shown their ability to draw on experiences derived from previous assignments wherever in the world they were undertaken. They have strategic assets like brand name, capital, technology and research and development capabilities to defeat local competition.[17]
Nearly 10 years ago, I was a member of Trust Bank Corporate Finance team that were local advisors on the proposed privatisation of Tel-One. We were working at risk. The external legal advisors were Clifford Chance, while the local ones were Sawyer & Mkushi. Clifford Chance walked away with USD 1m in legal fees. PwC were external financial advisors and they walked away with similar riches. The privatisation bid was stopped at the last leg. We walked away with nothing. We did a lot of work. Clifford Chance often sent one senior partner and a young South African lawyer to the assignment.
The lesson from that experience was that: global law firms and global accounting firms will compete in your territory, with better brands, more capital, more muscle and still feed in your trough. No law society has the ability to stop them. Money is not made through a right of appearance in court. By the time the matter goes to court, the clever ones would have long fed.
Taking this to a local level, do not be surprised to see South African law firms doing work in Zimbabwe. All they will need is a big business that believes in their brand, capital, technology and ability to deliver value. As we speak now, I am aware of at least one big SA law firm that has a department that deals with African work—this is work across the continent!
Communication and Technology
A story is told about how the arrival of the fax machine astounded legal secretaries. This brought demands for relatively instant communication and everything that came by fax was urgent. Now, observe what the arrival of email, text and the internet has done to communication. If I email you at 9am and ask;
‘Is there a right of appeal against a decision of the Commissioner of Taxes?’
I want an acknowledgment of that email immediately. I then expect the answer within hours. If you are silent, I will email another lawyer. By the time you get back to me after three days with 5 page ‘opinion’ citing 23 decisions of the Supreme Court, you are too late. I will neither accept nor pay for your time! This is the new world guys!
Physical proximity is no longer necessary for doing business. And so, a person seeking legal assistance in settling an acknowledgment of debt may receive electronic assistance from many places across the globe. Price will drive this.
‘The Internet increases buyer power by facilitating a customer’s comparison of services offered and prices charged by different providers.’[18]
In South Africa, a website www.hippo.co.za allows customers to compare insurance quotes for themselves before they decide on who to approach. A similar one www.autoworld.co.za allows a person looking to purchase a car to compare different models, calculate repayments, compare brand new and used cars and even pick dealers who have stock. It will not be long before clients are able to compare fees by visiting a middlemen service that offers comparative quotes on say, consensual divorce, maintenance applications, due diligences, criminal appeals etc. Similar middlemen services relating to legal services are available in Australia.
When I joined Messrs. Calderwood, Bryce-Hendrie and Partners of Bulawayo, in December 1996, I could not work a computer. My secretary had a typewriter. She was a shared resource. When I joined Scanlen and Holderness a year later, I had a secretary with a computer. I still could not make use of it in her absence. When I joined Old Mutual in August, 1999, I was presented with an office with a Compaq computer and a printer. The secretary for the department would come to my office a few times in a week to restart the machine after a few cock-ups. In 6 months, I had taught myself to use a computer. It was a painful exercise I would not wish anyone. But today, I rarely draft anything in long hand for anyone to type for me. I have spent a good part of the last 4 years of my career working on a project to provide free access to law via the internet. I have been to courts in the region and spoken to lawyers and judges and top civil servants. I have seen how information technology has driven major changes in the law. This is not change by choice it is imposed by the necessities of the law.
After my computer challenged years in I realised that computers should be compulsory subject in law school or at least for anyone over the age of 10! More than 14 years since I left law school, the university is still churning out lawyers who cannot work computers. If you cannot use a computer, you will be useless in ten years’ time! Clients are also expecting service delivery via the use of information technology. You will be required to answer clients’ queries via video conferencing, Skype etc to board meetings in progress.
This is not to say technology is going to eliminate the need for personal service provided by lawyers. As Harcup puts it;
‘Clients will still require the influencing, analytical and creative skills of human lawyers. Empathy and our use of language are the traits that distinguish us as humans from animals, or indeed computers. These skills will still be in demand from clients in the 21st century and will become even more important. On the other hand, less legal work will be available for solicitors because of the availability of online legal services for basic transactions.’[19]
Shareholder drive for higher profits
I am aware that your firm is seen as a corporate firm-one that places greater resources on serving corporate clients and doing commercial work. In the modern business world, you will not see Jack Welchs anymore. CEO will be replaced at quick pace. There is a strong drive by shareholders for higher returns and growth. CEO in turn have been driving towards the reduction of costs. Cost cutting initiatives are affecting legal work too. Your clients are scrutinizing your bills more than ever before.[20] As a result, there has been a major change in the way global business views legal services. They have segmented legal services into two broad categories, which are;
a. Commodity work
b. Value-added services
Commodity work is normally given to local firms, but we are beginning to see a trend whereby it is even farmed out to cheaper jurisdictions. Local firms are retaining a good part of the litigation work. But still, local firms are expected to provide good service at a low cost.[21]
Value-added services such as mergers and acquisitions and capital market transactions are being reserved for huge global firms. The clients are willing to pay top dollar for the best and will pay a premium to get the best law firm.[22]
So, you may well achieve the status of a corporate or commercial law firm, but you will not necessarily be earning the top dollar unless you can do not only the commodity services but also the value added work.
The Unhappy Young Lawyer
One of the worrying trends in the legal world today is that young lawyers are not prepared to wait for many years to become partners with equity in the law firm. Young lawyers are more married to their work than to the employer. Dunstone says that they ‘see each new position as a way of acquiring experience to equip them for their next ‘gig’. They also value flexibility, lifestyle and leisure time.’[23]
So the challenge is to put together a formidable team of legal professionals and yet you have challenges in recruiting and retaining them. We need not look beyond the ‘big law firms’ of the 1990s to see what poor succession planning and motivation culture can harm the future of a law firm.
Advertising prohibition
We have retained some of the most archaic professional rules of conduct in this country, in the same way we have continued with rules of court that have been discredited and abandoned in countries that gave birth to them in the first place. One such relic of the past is the prohibition on advertising. Many countries have accepted that legal practice is like any other business. It must be allowed to advertise for so long as the advertisement is truthful, in good taste and not misleading. I foresee in the near future either a change in legislation to allow for advertising or at least a legal challenge to the prohibition. In countries where the challenges have been made, the prohibition has been considered to be unconstitutional for being an unnecessary infringement on the right to receive and impart information. Yet in this country to approach a client of a rival to pitch is considered an abomination. It is considered touting. You cannot even indiscriminately hand out business cards at a function. The size of the lettering you put on your firm’s signage is regulated!
Frankly, this is ridiculous. It may even infringe upon fair competition. How do you expect a start-up firm to get known?
I must state that I asked the Minister of Justice Cde Chinamasa at the Victoria Falls Winter School about this prohibition. He categorically stated that he supported the removal of s23 of the Legal Practitioners Act. It was up to the lawyers to approach his office for this to be effected.
What are the implications of the removal of this prohibition?
· You will see more and more law firms gaining visibility
· Clients will be able to compare service providers, their price and services and make an informed choice.[24]
Tendering for services
In 1999, a huge Zimbabwean state entity had suffered losses due to the conduct of a law firm. It enlisted the services of a more established law firm to help in resolving the matter. The latter firm gave outstanding service to the entity. The entity decided to fire its offending legal practitioners and put its work out to tender. A few hours before the tender had closed, the entity was worried that the established firm had not put in a tender. It phoned to enquire about the apparent snub. The preferred law firm responded by pointing out to the organisation that it would NOT tender for legal work and that any law firm that had responded to their advertised tender may have been in breach of the law!
Today, competitive tendering is not only in vogue for everything but it is a means through which organisations procure good value from service providers. In the public sector, it is an efficient and effective tool against corruption. And so, what is so special with lawyers that excuses them from being subjected to a transparent and accountable appointment process?
I foresee in the near future more organisations putting their work out to tender. In Australia, clients have been demanding fixed fees for commodity work, faster service and value-adds (which is a euphemism for free services). It is not uncommon for some of the government tenders to demand that certain levels of pro bono work to be scored on the tender adjudication process.[25]
Sharing risk with clients
Clients are now demanding full or partial success fees or offering remuneration in the form of equity.[26] This is a very important development which you can use to lure new work and to earn a good return. If you act for a client in a listing, share issue, recapitalisation, mergers and you are the principal legal advisers, why should you not take equity in place of fees? If you advise on suing for a huge sum of damages, why not take risk on the success of the claim?
Billing clients by the hour is already being strongly resisted in many parts. Clients want you to share in the value you generate. As Dunstone notes;
‘This way of working is fairly new for lawyers, but has long been a way of life for consulting firms. A recent survey of consultants found that one third of their large clients insist on performance-based or results-based fees.’[27]
Restricted business forms for lawyers
In terms of the law in Zimbabwe, a law firm can only operate as a sole trader or as a partnership. You cannot even be a legal practice company, limited as that form is. You can therefore not have the benefits of limited liability. You can only manage your business risk through insurance and being careful.[28]
Secondly, lawyers cannot share profits with other professionals. This limits your ability to form cross-professional teams to perform special and highly rewarding work.
Thirdly, you are prohibited from operating another business under the same banner. This means that you cannot gain competitive advantage through differentiation.[29] If you are a law firm that specialises in conveyancing, why should you not be able to run a property sales business as well?
Fourth, you cannot raise capital from the public. This means you cannot make a public offer to the public to subscribe to your shares. If this was possible, you would have the benefits of huge sources of capital to run and build bigger firms which are well equipped.
Multi-disciplinary Practices
Law firms are structured as sole owner or partnership businesses supposedly to maintain professional standards. In Australia, for example, the Law Council has decided to do away with the traditional restrictions. Business structures are no longer considered important and necessary to the maintenance of professional standards.[30] Multi-disciplinary practices (MDPs) are now allowed. It is not even necessary for lawyers to be the majority in a MDP. A lawyer in such a practice remains subject to the same professional standards as a lawyer in a law firm. The change has enabled legal service to be provided by entities other than traditional law firms. In effect, other professionals like accountants may practice law. There is however some core work that remains reserved for lawyers.[31]
A MDP could take any of the following forms;
· ‘A law firm that add non-law services by bringing in a non-lawyer partner
· A law firm adds non-law services, which are provided either by the lawyers or by employed non-lawyers.
· A non-law firm adds law services by bringing in a lawyer partner
· A non-law firm adds law services by employing lawyers.’[32]
MDPs are considered better forms of business. They bring many advantages, some of which are;
· MDP can serve clients better by bundling services up with non-legal services which gives them greater scope.[33]
· Allows lawyers to provide a seamless service rather than have a client go through a network of service providers.[34]
· It provides new ways of differentiating a firm. New services can be marketed together with the traditional ones.[35]
· There is a huge cost saving on administrative costs of running two or more separate businesses.[36]
A mental shift is required of lawyers. You cannot simply be problem solvers. You have to look at yourselves as business support services. Many accounting firms have changed the way they look at their services. They have added to their usual accounting services new services like financial planning, strategic and business planning, change management and marketing. They now charge retainers to look after a client’s business on a monthly basis rather simply charge a fee for helping a client resolve a particular problem. This continuous client interface offers the lawyer the advantage of understanding the business of the client and with it the opportunity to detect business needs. You will also be able to anticipate the needs of the client.[37] Clients increasingly expect not to simply receive legal opinions. They want legal advice to be embedded with other information relevant to the business. As Dunstone puts it;
‘Lawyers are the only people who see legal issues as “separate”. Our training teaches us to spot the “legal issues”, break them off and analyse them separately. Anything that is not a “legal issue” is regarded as someone else’s business. Yet clearly problems do not really come in labelled boxes, and issues must be examined in their context.’ [38]
Developing new skills, new and innovative services
Dunstone encourages lawyers to learn new skills and stop living off the existing skills only. The environment is changing. She cites the example given by Maister, that ‘if all you work on is what you already know how to do, you’ll eventually be overtaken by someone younger who will learn how to do what you do, and will probably be willing to do it for less than you get paid.’[39] Maister classifies legal work as either asset-milking or asset-building. With asset-milking, you will be ‘taking advantage of and exploiting existing skills, relationships, and reputation’, while asset-building is ‘offering the opportunity to develop new skills by working on frontier innovative projects, building new and stronger client relationships that will pay dividends in future years, and creating a reputation in new fields or market segments.’[40]
In order for you to be able to develop new ideas, there is need for a major shift in our thinking. As Dunstone articulates;
‘Law firms do not usually provide an environment in which new ideas can thrive and grow. On the contrary, stress is endemic, risk is discouraged and failure is not well tolerated. Lawyers are trained to object, refute and win argument, but this approach is not conducive to the development of new ideas...Developing new services should be a response to client needs, but clients cannot always articulate what they need or want. We need to move beyond problem solving to needs-identification.’[41]
In addition, we need to look less viciously at fee spending initiatives that seek to develop new products.
‘Research and development is a hard bullet to bite, because it looks like fee-spending rather than fee-earning. It requires a change to the “eat what you kill” culture that often exists in law firms. What’s worse, some of the experiments won’t work, giving the impression of wasted time.’[42]
Teamwork
Firms need to look less like individual playfields. More teamwork is required and it must be visible to your clients. If you rely too much on individual efforts, it limits the potential of the firm. The firm’s goodwill and brand is built on teamwork.[43] And this must be a deliberate firm policy. As Maister suggests;
‘A firm that can supplement the skills of individual professionals by bringing to bear its collective experience regarding each individual client problem is going to be more valuable in the marketplace than otherwise. It therefore behoves every firm to ensure that there is value in the firm itself.’[44]
Learned friends, this is how you ensure that your firm is able to collect as much skills and experience from senior lawyers as possible. It is not an accidental process, it is a deliberate.
Fees
In the UK and in South Africa, there is pressure on the legal profession from competition authorities who are keen to open up the market and break down monopolies being enjoyed by the legal profession.
Clients have become more demanding. They are demanding high quality service at less cost. In the commercial sector, the well known cash cow for the legal profession, there is a greater demand for fees to be fair and transparent. The clients want value for money.
Your clients are continuously reviewing your role as legal advisers. You have to continuously worry whether you meet the expectations of your clientele. Richard Bennett, the HSBC general legal counsel notes that his legal team is an integral to the bank achieving its objectives. The legal team like other sections has to account for the ‘overall cost of things’.[45] Internal legal counsels are nowadays continuously concerned about how to reduce costs. In order to achieve this, they will ensure that they are very careful about what work to farm out to external legal advisors and what to do internally. They will consider how to manage the external advisors. They will ask questions like…’[A]re we paying too much? Can we cut costs by finding quicker, better ways of doing things?’[46]
Spencer cites the example of the US manufacturing giant Tyco which has done away with the briefing of external firms and paying fees at an hourly rate. It has entered into a partnership with the firm Eversheds in terms of which Tyco pays a flat annual fee of 8million pounds.[47] He adds that the Swiss Bank, UBS is now ranking legal service provided by external lawyers in order to determine the quality of the service.[48] The software giant Cisco has achieved standardisation of patent applications and contract renewals. It has forced its suppliers, including law firms, to find cost cuts of 20% per year. As of 2007, HSBC was looking at outsourcing routine legal work to cheaper countries. Its core external legal suppliers could then concentrate on ‘value added’ tasks.[49]
Richard Susskind has spent considerable time researching on the future of the legal profession and comes to the conclusion that the legal profession is ‘on the brink of fundamental transformation.’[50] In his view, two major forces will drive this transformation: ‘ a market pull towards commoditisation and by pervasive development and uptake of information technology. Commoditisation and IT will shape and characterise 21st century legal service.’[51]
The practice of the law is fast changing. Our territorial jurisdictions will not provide a wind cheater against the winds of change. Lawyers and their clients must now think ‘think more creatively, imaginatively, and entrepreneurially about the way in which lawyers can and should contribute to our rapidly changing economy and society.’[52] In summary, the new challenge is to re-examine our law firms and say;
‘what elements of …current workload could be undertaken differently—more quickly, cheaply, efficiently, or to a higher quality—using alternative methods of working. In other words, the challenge for legal readers is to identify their distinctive skills and talents, the capabilities that they possess that cannot, crudely, be replaced by advanced systems or by less costly workers supported by technology or standard process, or by lay people armed with online self-help tools.’[53]
The market conditions
‘… the market is increasingly unlikely to tolerate expensive lawyers for tasks (guiding, advising, drafting, researching, problem-solving and more) that can equally or better be discharged, directly or indirectly, by smart systems and processes. It follows that the jobs of many traditional lawyers will be substantially eroded and often eliminated. At the same time, I foresee new law jobs emerging which may be highly rewarding, even if very different from those of today.’[54]
The Scourge of the Billable Hour
Billing by the hour is a practice that is most common in Zimbabwe and many countries across the globe. There is an assumption that we make that the work that the lawyer has done is reflected by the hours the lawyer has spent on that client’s work. As noted in the Report of the CBA Young Lawyers’ Conference in Canada (2000);
‘The fundamental problem with hourly billing is that it assumes that time spent is uniformly an adequate measure of value delivered to a client...The point of any fee should be to attach an appropriate value to the lawyer’s service. A successful lawyer is one who can provide a service at a fee which is reasonable to the client, but which exceeds the lawyer’s costs of performing that service. The fee, therefore, should be an attempt to charge what the service is worth. An hourly rate should be a technique to help calculate what that value is.’[55]
The result of the billable hour is that a brilliant or competent lawyer will charge less than a less capable one for solving the same problem. The billable hour rewards the one who spent the most time without necessarily looking at the value delivered. As the CBA YLC report puts it;
‘Hourly billing creates a “productivity paradox”. By one measure, a lawyer who can accomplish a task twice as quickly as another lawyer is more productive and more efficient: that ought to be a good thing, and would be desirable from the client’s point of view. But if that lawyer’s performance is measured by hours billed, on paper he or she has been less productive, by billing only half as many hours.’[56]
But it is not going to be easy to simply do away with the billable hour. The billable hour is embedded in legal practice. The tariff recommended by the Law Society is based on billable hour. It is an easy estimate of costs to a client. It determines targets for lawyers and ultimately, pseudo as is, it is the measure of productivity and a costing tool.
Some of the alternatives are (1) task based billing- where a lawyer charges for various tasks in the legal action (eg. Drafting pleadings, attending negotiations etc). The client is upfront aware of the costs of each stage.[57] The risk for the lawyer is that if more time is spent, no additional remuneration is received.
Another method could be fixed fee billing. In this instance, the entire file is treated as a task. It is a workable method for tasks that are standard like preparation of wills.[58] The Law Society tariff makes provision for this, I think. For the hourly billing to be effective, the lawyer must be able to determine what will be profitable in the long run and still be attractive to a potential client.[59] This is quite ideal in services that could be achieved by most lawyers, the so-called commodity services. While it promotes efficiency, it similarly may encourage the cutting of corners where insufficient volumes have been generated.[60]
There could be hybrid billing systems that incorporate hourly rates and flat fees. This is possible where fees are capped to a maximum or where a lawyer and client agree on a lower fee level provided the lawyer can get a higher fee if success is delivered or the party and party costs recovered.
The Courts, Litigation and Justice Delivery
The state of our justice delivery system is disappointing, to say the least. The court system has virtually collapsed. The quality of the judicial appointments has deteriorated. Courts will pose a major challenge for a while in the future until there is serious commitment to the resolution of justice delivery by our courts. This is likely to continue in the future;
· Poorly paid judges and magistrates
· Serious teething problems with the setting up of the Judicial Service as separate from public service
· Lack of public confidence in the judiciary
· Poor appointments or candidature for judicial office
· Constitutional law will grow in importance once a new constitution has been passed
· Criminal law will be a growing area of practice, as well as immigration.
· Government lawyers and prosecutors will remain of poor quality, compromising justice delivery
· IT will be introduced in the courts but will face institutional resistance due to poor training and skills
· More specialized courts will emerge but will have little impact in improving justice delivery
SUMMARY OF THE FUTURE
The future will see the following features;
ü Increased competition from regional and international firms and local substitutes for legal services
ü Challenges to the traditional way of doing legal business
ü Unfriendly operating environment in the courts
ü Unhappy young lawyer will continue to be a challenge to future stability of law firms
ü IT will take centre stage
ü Billing will change dramatically
ü Clients will want to see commodity vs. value distinction in charges
ü Law firm regulation will move away from self-regulation
ü New areas of the law like competition law, mining law, energy law, IT law, environmental law will become lucrative practice niches.
I now turn to the next question...
How do you stay ahead?
According to Eversheds, a premium law firm which is successful and sustainable will have the following characteristics;
a. Resourcing: efficiency and technology
b. Legal practice: well hedged (‘a hedged well rounded legal practice arranged around an industry sector focus’), present in emerging jurisdictions like China and India; ‘as regulation increases and is reformulated a regulatory practice is crucial.’
c. Human capital: Lean (‘low leverage, emphasis on quality lawyers’); commercial, generalist lawyers (‘continued investment in training and development of generalist lawyers with more than legal skills-MBAs, leadership training, etc.’
d. Client relationships: collaboration (‘accepts the law firm is a service provider which can provide genuine collaboration with clients, willing to share risk and reward’); Billing (‘provides a tool box of fee arrangements, including fixed fees and value billing’)
Like I said in the beginning of my presentation, I assume that you are ahead and all I am required to do is tell you how you can stay there! In order for your firm to maintain its position ahead of the pack, it must be positioned strategically. The development of that business strategy involves an internal and external analysis.
External Analysis
· Political- the political environment has had a major impact on the conduct of business in Zimbabwe.
· Economic-law firms are affected by the same economic policies that prevail and affect other players in the economic sector.
· Social-cultural- what social and cultural factors influence the practice of law in Zimbabwe? Are the prevailing attitudes towards women or members of a particular tribe or race impacting on your business?
· Technological-what are the technological advances that are impacting on your business? Cell-phone network, internet, email, video conferencing etc.
· Legal-what legal regime affects your business? Labour? Law society?
· Ecological-what environmental factors are impacting on your business? Can you still afford to produce the huge volumes of paper lawyers are famed for?
For your internal analysis, you will need to understand the following;
· S-build on your strengths
· W-you must find ways to overcome your weaknesses and exploit those of your competitors
· O-Identify market opportunities
· T-Plan to circumvent external threats
Branding
‘Kantor and Immerman, Legal Practitioners’, so says your letterhead! What does this convey in the minds of judges, fellow lawyers, law students, prosecutors, state attorneys, advocates, the Deeds Office, the Companies Office, prison officers, police officers and the general public? A Jewish firm? Black Jews (Varemba)? Gentiles?
Scott Bedbury has said;
‘The best brands never start out with the intent of building a great brand. They focus on building a great—and profitable—product or service and an organization that can sustain it.’[61]
Branding is about the traditional Ps in marketing: product (in your case service), place (distribution channel), price and promotion.[62] Others add a prayer to this, but Kawasaki prefers proselytisation-‘which is the process of converting others to your belief, doctrine, or cause.’[63]
Price or should I refer to it as fees
Lawyers’ fees have been and will continue to a major source of controversy. How do you set your fees? Do you follow the Law Society tariff that assumes that because you are an old lawyer you must therefore charge more irrespective of your ability and the quality of service? A fee, like any price must be set in a very deliberate way. A number of factors affect pricing. Some of these are;[64]
a. How does the clientele perceive the value of what you are offering?
b. How are you positioning yourself?
c. What are the costs of providing the service?
d. What are the competitive forces at play?
e. What value does your firm expect to gain?
You then have to decide whether you want to pursue cost based pricing or value-based pricing. With cost-based pricing, you look at the service/product—cost—price—value—customers. With value-based pricing, you look at customers—value—price—cost—service/product.[65] Customers will pay your price if the total benefits outweigh or match the total price. A client will look and say, what were the features of the service; of what quality was it; how was the service; how is the availability; usability and how much personal satisfaction have I received. They will weigh this against your total fee.
Place/Distribution
How, when and where do you make your services available to your clients? Do you send letters and faxes, do you sit and consult one-on-one, do you use the internet? Do you visit clients at their offices and give assistance or you want your clients to come to your offices and sit for hours in reception? Learn from chartered accountants. Clients will pay for an advisor who cares for them and goes to their offices to serve them.
Promotion
This is a broad term that refers to a range of activities and communication channels that are used reach customers. What the firm would be trying to achieve is influencing how you clients think, feel and act toward a brand or a service on offer. The most common channels used are:
a. Advertising- gets messages to large audiences efficiently
b. public relations- positive image and strengthen ties with stakeholders
c. sales promotions- stimulates immediate purchase and rewards repeat business
d. personal selling-one to one selling, builds and strengthens relationships
e. direct marketing-reach targeted audiences, encourage direct response
f. digital-web/mobile- brand engagement, dialogue, strengthens relationships
Communications Planning
In order for you to plan your communication properly, you need to ask and resolve the following questions;
1. What- what specific proposition or message?
2. Which-which channels to reach the clients, and how much money will be spent on each?
3. When-when, in what mood and frame of mind, with what deployment strategy?
4. How-who will it all be stitched together to create the big picture?[66]
Kawasaki succinctly puts art of branding in modern parlance by describing it thus;
‘The art of branding requires creating something contagious that infects people with enthusiasm, making it easy for them to try it, asking them for help in spreading the word, and building a community around it.’[67]
Branding, contrary to what some money-wasting marketers think, is not about having a posh letterhead and adverts in every place. Great brands start with a great service.[68] I may visit your nice and well presented website, I may have your glossy letterhead, I can see your beautiful support staff in elegant and short dress, I can see your modern offices freshly painted but if Kantor & Immerman does not have a great service for its clientele, all the perfumes of Arabia cannot sweeten your name.
There is great wisdom in the old aphorism, that; the taste of the pudding lies in the eating! The lesson is this, if you want to have a great brand, provide great service. As Kawasaki puts it;
‘If you have something that’s gold, you can make a lot of mistakes with it and still succeed. If you don’t, you have to do almost everything right. So make it easy on yourself and create or find products and services that are inherently contagious.’[69]
Contagion
In other words, if you are a great law firm with great services, you may mess up a client’s work but the client will return. If you have poor service, you do not get a second chance. If you want your clients to find you irresistible, create contagion. Contagiousness has the following key elements;[70]
a. Cool. Create something different but cool. Anything that is cool is contagious.
b. Effective. You cannot brand rubbish.
c. Distinctive. ‘A contagious product is easy to notice and advertises itself. It leaves no doubt that it is different from the competition.’[71] Eg. The Hummer.
d. Disruptive. ‘Contagious products are disruptive. They upset the status quo or make them go into denial.’[72]
e. Emotive. ‘A contagious...service exceeds expectations, and by exceeding expectations, it makes you joyful.’[73]
f. Deep. It must be deep in its usability. The more you use it, the more you discover its capabilities.
g. Indulgent. ‘Purchasing a contagious product or service makes you feel as if you’ve indulged yourself. This may be because it costs more than the alternatives, it’s cooler, or it’s more that you really need. Thus it enables you to escape the mundane.’[74]
h. Supported. ‘Providing exemplary service makes a product or service contagious.’[75]
And so what are the current realities in marketing?
These are the realities to marketing in the 21st century;[76]
a. The pace of change is swift and dramatic
b. There is increased competition
c. There is shorter time to market eg. Surf-pick-a-box shows are gone
d. End of mass communication- people want personal communication.
e. There is a deluge of information-there are too many people saying too much already.
f. There is a constant constrain on budgets- advertising and marketing in general are expensive.
g. There is growth of digital technology-digital technology has changed the way we communicate.
Marketing is facing new challenges. Some marketers call this the marketing catch-22. This is how the catch-22 works: the challenge is the law firm wants to market its services; the problem is that there is marketing resistance; the response from the market is that there is more marketing saturation; the result is that there is more marketing resistance.[77]
A strategic marketing planning process consists of two main elements: Situation analysis and marketing communication programme. I will briefly touch on the situation analysis:
1. First do the research and market analysis
2. Secondly, understand markets and customers
3. Thirdly, segmentation, targeting, and positioning must be done.
Then you move to the communication programme, and do it as follows;
1. Goals (long term targets), objectives (shorter-term targets) and marketing support. Effective objectives must be specific, time defined and measurable, realistic (but challenging), consistent with mission and overall goals, consistent with external and internal environmental analysis. They must be appropriate when considered in the light of opportunities and threats. Your marketing objectives must target the management of relationships. This includes the acquisition of new clients, retention of clients you already have, customer satisfaction, etc.[78]You must watch the dollar. There is need to set financial targets as well. This must be aligned to the marketing objectives. This is where profitability targets come in. How well is the business projected to do?
2. Marketing strategies, programmes and tactics
3. Implementation control and measurement
Recruitment of lawyers
The University of Zimbabwe and the Midlands State University produce the lawyers. Are they producing the lawyers that we want? Is Dougie Chinawa and his accomplices meeting the demands of the market? Let me start by saying that it has never been possible for law schools to produce ready-made products. Law schools are incapable of producing lawyers for the market who meet our requirements. We have as law firms to invest in the training and mentoring of young lawyers to become able lawyers who can work efficiently and intelligently in our law firms. The ideal attributes often sought in your candidates are;[79]
· Good legal knowledge
· Good communication skills
· Hard-working-willing to do both interesting and boring work
· Practical/commercial
In addition, most law firms highly rate professionalism, mature attitude, enthusiasm, being a team player, well organised and use of initiative as good attributes.[80] But I can safely assume that our law schools do not have the facilities to produce what we are expecting of them. The dearth of academic staff, lack of basic books, lack of information technology etc have negatively impacted on the quality of the lawyer we want. In addition, the curriculum has not been revamped continuously to ensure that the law schools produce graduates who are able to meet the needs of the market. The ideal lawyer you want who has a very good grasp of substantive law, has good analytical skills, research and other technical skills while at the same time possessing very good interpersonal skills you have to make yourselves. You have to endeavour to develop lawyers who are capable of retention of the black letter of the law and at the same time able to do serious legal research and have the autonomous ability to take responsibility for his or her own learning.[81]
If you want your firm to stay ahead of the pack, you must ensure that you get involved in the training of lawyers at the school and hire the most promising. Once they are in your firm, you must invest in their training. This training must cease to be the accidental anecdotal training by senior lawyers. It must be a deliberate curriculum that is developed to meet the needs of the firm and ultimately the commercial and practical needs of the general public/clientele.
In addition, have clear-cut career plans for your young lawyers. They must know when partnership is to be expected. They must know the standards that will be used to judge their work when the decision is to be made. Our young lawyers are mobile. They will leave if there is no hope of progress.
Firm management
The only real business subject taught in Law School remains possibly ‘Accounting for Legal Practitioners’. Most lawyers believe that armed with that subject they have miraculously become business managers. Please disabuse yourselves of that mentality. You do not become an able law firm manager because you are a lawyer. Law firms must employ able, talented and trained business managers. The idea that firms appoint a managing partner from amongst their number or that the most senior lawyer is for some reason the most competent is discredited. This is why the growth of law firms has been severely hampered. Hire managers who may be CA’s etc to run your business. Do not waste invaluable legal training on doing mundane tasks like ordering stationery, hiring secretaries, etc. Let managers manage your practice.
Harcup argues that law firms today ‘must provide excellent client service as well as market to new clients. Manage their staff and finances to be successful. To do so, they require not only excellent legal knowledge and legal skills, but also good interpersonal and management skills.’[82] The importance of these skills have been acknowledged by UK solicitors, who now invest in extensive internal training programmes which cover topics from drafting and negotiating skills, leadership, supervision skills and networking skills. Learning and personal development have become important in building and managing modern law firms.[83]
Specialisation
Specialisation in one or more fields of law is fast becoming unavoidable. Some law firms have built big enough specialist practices. It not uncommon to find law firms like Adams & Adams in South Africa majoring in intellectual property law. Some law firms just deal with personal injury cases only. This in my view is the narrow specialisation. Many law firms in Zimbabwe and in other countries strive to have a reputation as ‘commercial law firms’. This based on the belief that commercial law pays better. Big business does not fail to pay fees. The work is cleaner and does not involve having to deal with the police, prison officers, rude and underpaid prosecutors etc.
The complexity of laws being passed on a regular basis, globalisation, international regulation, cross-border practices, regional co-operation, among others, have created an environment for lawyers who prefer to work as specialists to create thriving practices. Specialisation in Zimbabwe, of a narrow kind, is still difficult because the economic shrinkage has limited growth. This may be a misstatement as some law firms seem to specialise in bail and such other criminal practices. But for many of them, this is not a deliberate strategic choice. It is a survival instinct determining economic activity.
Some firms still accept general work but have specialised units that deal with certain type of work. This would be ideal in an environment like Zimbabwe. It would allow the firm to survive on income from several sources, while at the same time affording its clients an array of legal services. Financially, this is good for diversity in sources of income. Should there be a slump in the mining law section, human rights litigation maybe able to carry the ken.
Pro Bono Work
As I said at the beginning of my presentation, practicing law is a public service—a service to the community. It is a commitment to work for justice. We live in a country of inequalities. Lawyers have a special role to play in ensuring that the poor members of the community access legal services. As a law firm, I would urge you to set aside hours every month to provide pro bono services. This service will go a long way in promoting your own firm and in serving your own community. When well supervised, it will an important tool in training young law students and detecting future legal resources. With the new constitution, this is a good field for picking up good challenging work.
The Courts and the Legal System
I have until now ignored a major issue regarding the success or failure of your legal practices. This issue concerns the delivery of justice by our courts. Are our courts capable of delivering justice—quality justice? Do our legal system and our judiciary in particular enjoy public confidence? Do we have able judges? Can you guarantee quality delivery of justice by our courts? Do our courts have the necessary infrastructure to deliver justice? How about the endless delays and the undelivered judgments?
Learned friends, we face a major handicap. Our courts are not yet ready to work in tandem with a legal practice that is ready to deliver value to its clientele. We should expect frustrations. We may have to consider ADR a major force in ensuring delivery of justice to our clients, particularly in matters in which arbitration is permitted by law. Negotiation skills are important. They may give you the ability to settle and negotiate settlements in litigation to the advantage of your clients.
UNDERSTAND YOUR CLIENT
It is very important for you to understand your clients. You need to have a full understanding of their business in order for you to serve them well. In order to understand your client, you need to understand the whole organization structure; vision and mission, strategic goals, five year plan, long term aspirations of the client, how they do business, assets and resources, changes affecting them, products and services, competitors, problems they are experiencing etc.[84]
Aspire too to understand the industry they are in, the markets they operate in, the competition they face and market share, general environmental circumstances, etc.[85] In this analysis, the firm must continuously update its knowledge in order to fully anticipate client needs. Ultimately, a proper understanding of clients will generate ideas on;
· Where can we help more?
· How can we help better?
· How can we add more value?
· How can we increase the strength of our relationship?
· Do we need to change to reflect these changes?[86]
CONCLUSION
No doubt the world has dramatically changed. Clients have become increasingly sophisticated; demand more; have higher expectations; measure value for money more; more inclined to use tenders; shop around more; subject legal work to regular re-tender; more careful in scrutinizing bills; monitor the performance of legal professionals more; prefer proactive lawyers; want creativity and innovation and desire tailor-made services.[87]
As a result, a lot more is now demanded of lawyers. Lawyers are supposed to marry their services to the commercial goals and objectives of their clients; offer commercially viable solutions; know and understand the client very well; trustworthy; enthusiastic; reliable; and competent.[88]
We have to adapt in order to survive!
If you cannot identify or develop distinctive capabilities as lawyers and a law firm you will soon be history.[89] I think the words of Susskind poignantly reflect the challenge that legal practice will face in Zimbabwe and conquering the challenges will determine who will succeed and who will be vanquished;
‘I do not believe lawyers are self-evidently entitled to profit from the law…the law is not there to provide a livelihood for lawyers any more than ill-health exists to offer a living for doctors. Successful legal business may be a bi-product of law in society, but it is not the purpose of law. And, just as numerous other industries and sectors are having to adapt to broader change, so too should lawyers.’[90]
Bibliography
1. Leonard S. Janofsky ‘The Future of the Legal Profession and the Role of the American Bar Association’ speech published in 11 U.Tol.L.Rev 201 (1979-1980) at page 214
2. Chris Maina Peter cites at page 368 the Private Practice Reform Committee of the Law Reform Commission of Tanzania (the Shivji Committee) in its Working Paper No. 1 of 1985
3. Mario Puzo in his book The Godfather
4. William Shakespeare, Henry VI
5. Peter Williamson, Law Society of England and Wales, speech to the 2003 Annual Conference
6. Chris Maina Peter, Human Rights in Tanzania,
7. Private Practice Reform Committee of the Law Reform Commission of Tanzania (the Shivji Committee)
8. Shapero v Kentucky Bar Association, (1988) 486 US 466
9. Mr. Justice Murray Gleeson, Chief Justice of Australia, ‘Examining Values’ a paper delivered to the Australasian College of Surgeons, St Mary’s Cathedral, Sydney, 14 May 2006
10. Ross Cranston ‘Legal Ethics and Professional Responsibility’ published collection of essays by the same title, Clarendon Press
11. Chief Justice Brennan of Australia, ‘Profession or Service Industry: The Choice’ delivered as an opening address to the Australian Bar Association Conference, San Francisco, 18-21 August, 1996
12. Sir Anthony Mason ‘The Independence of the Bench (1993) 10 Aust. Bar Review 1
13. Eversheds ‘Law Firm of the 21st Century: the Client’s Revolution, An Eversheds Report on the post-recession legal sector, 2010’
14. Shelley Dunstone ‘The Future of the Legal Profession’ a paper presented at the Southern Australian Legal Convention, July 2002
15. Maister ‘True Professionalism, 1997 Touchstone
16. Alex Spencer ‘Richard Bennett: Every Industry Changes’ www.timesonline.co.uk, October 29, 2007
17. Richard Susskind ‘Legal Profession is on the brink of fundamental change’ www.timesoline.co,uk
18. ‘The Future of the Legal Profession: The Challenge of Change’ A Report of the Canadian Bar Association Young Lawyers Conference, August 2000
19. Guy Kawasaki ‘The Art of the Start: The time-tested, battle-hardened guide for anyone starting anything’ Penguin Books, 2004
20. Luiza, Gibbs Business School, Joburg
21. Joy Harcup, Head of Training, Berwin Leighton Paisner ‘The Future of Legal Profession and Learning: A View from Practice’
22. Pippa Blakemore ‘Developing your practice—Increase the value of current clients: The Rainbow Strategy’ A Paper presented at the 2005 Conference of the International Bar Association
23. Richard Susskind: The End of Lawyers? Rethinking the Nature of Legal Services, Oxford Press 2008
[1] This paper was prepared and presented by TR Mafukidze at a strategic retreat for Messrs. Kantor & Immerman, Imba Matombo, Harare, Zimbabwe on the 22nd January, 2011. It is not for publication.
[2] Tererai Rector Mafukidze holds a Bachelor of Laws (Honours) [LL.B (Hon.)] from the University of Zimbabwe awarded in 1996. He is due to complete his Master of Laws (LL.M) in Corporate Law with the University of the Witwatersrand, Johannesburg at the end of June 2011. He is majoring in Competition Law, Banking and Finance and Company Law. He was admitted as a Legal Practitioner, Notary-Public and Conveyancer in the High Court of Zimbabwe in February 1997. He practised law in private law firms in Bulawayo (Calderwood, Bryce Hendrie and Partners) and Harare (Scanlen & Holderness) for three years before he joined Old Mutual as Legal Advisor. He later joined the Trust Group, a listed financial services company as Legal Manager of Trust Bank. He became Group Company Secretary in April 2005. He left Trust in October 2006 and moved to South Africa to take up a position with the Constitutional Court Trust of South Africa as the Co-ordinator/Secretary of the Southern African Judges Commission (latterly Southern African Chief Justices Forum). He subsequently combined this responsibility with the Directorship of the Southern African Legal Information Institute (www.saflii.org). Tererai left the employ of the Constitutional Court Trust at the end of March 2010. He works for the African Legal Information Institute (AFRICANLII). He is a co-founder of the AFRICANLII. He is involved in the establishment of legal information institutes across the Continent. He has attended and spoken at many international and regional conferences on Free Access to Law, constitutional law, judicial independence, human rights and corporate law. He also works part-time in the Office of the Chief Justice of South Africa as a researcher responsible for writing speeches and papers for Chief Justice Ngcobo.
[3] Cited by Leonard S. Janofsky ‘The Future of the Legal Profession and the Role of the American Bar Association’ speech published in 11 U.Tol.L.Rev 201 (1979-1980) at page 214
[4] Speaking at the 2003 Law Society Conference, cited by Harcup at page 5
[5] Ibid at 214-215
[6] Chris Maina Peter cites at page 368 the Private Practice Reform Committee of the Law Reform Commission of Tanzania (the Shivji Committee) in its Working Paper No. 1 of 1985 as reporting that;
‘There is street talk circulating around that private advocacy is a means to easy and quick riches and that privately engaged lawyers are fast-talking, money-grabbing lot. The saying by Mario Puzo in his book The Godfather has a lot to do with this image when he said “A lawyer with a briefcase can steal more than a hundred men with guns.” To the Don, saying lawyer and robber, are one and the same thing.’
[7] Qouted by Chris Maina Peter at page 367
[8] (1988) 486 US 466 at 488-489
[9] Delivered at St Mary’s Cathedral, Sydney, 14 May 2006
[10] At page 3
[11] Ross Cranston ‘Legal Ethics and Professional Responsibility’ published in a collection of essays by the same title, Clarendon Press,
[12] Chief Justice Brennan of Australia in his paper ‘Profession or Service Industry: The Choice’, delivered as an opening address to the Australian Bar Association Conference, San Francisco, 18-21 August, 1996 at page 4
[13] Sir Anthony Mason, ‘The Independence of the Bench’ (1993) 10 Aust. Bar Review 1 at page 9, cited by Chief Justice Brennan in his paper ‘Profession or Service Industry: The Choice’, delivered as an opening address to the Australian Bar Association Conference, San Francisco, 18-21 August, 1996 at page 4
[14] ‘Foreword’ Eversheds ‘Law Firm of the 21st Century: The Client’s Revolution, An Eversheds report on the post-recession legal sector in 2010’
[15] Eversheds ‘Law Firm of the 21st Century: The Client’s Revolution, An Eversheds report on the post-recession legal sector in 2010’ at page 3
[16] ibid
[17] Shelley Dunstone, ‘The future of the legal profession’ page 1 of paper presented at the Southern Australian Legal Convention, July 2002
[18] Shellye Dunstone, Ibid
[19] Harcup at page 5
[20] Ibid
[21] ibid
[22] ibid
[23] Ibid
[24] ibid
[25] ibid
[26] ibid
[27] Dunstone at page 4
[28] Ibid at page 5
[29] Ibid
[30] Dunstone at page 5
[31] ibid
[32] Ibid, Dunstone suggests that joint venture arrangements may provide further possibilities
[33] ibid
[34] ibid
[35] ibid
[36] ibid
[37] Ibid at page 6
[38] Dunstone at page 6
[39] Ibid, at page 7
[40] Cited by Dunstone at page 7 [Maister, True Professionalism, 1997 Touchstone]
[41] Ibid
[42] Ibid at page 8
[43] Ibid
[44] Maister, at page 98-99 cited by Dunstone, ibid
[45] Alex Spencer “Richard Bennett: ‘Every industry changes’”www.timesonline.co.uk October 29, 2007
[46] Ibid
[47] ibid
[48] Ibid
[49] Ibid
[50] Richard Susskind ‘Legal Profession is on the brink of fundamental change’, www.timesonline.co.uk the first of his six draft excerpts from his then forthcoming book at page 1.
[51] ibid
[52] Ibid
[53] Ibid
[54] Ibid
[55] ‘The Future of the Legal Profession: The Challenge of Change’ A Report of the Canadian Bar Association Young Lawyers Conference, August, 2000 Page 53
[56] Ibid at page 54
[57] Ibid
[58] Ibid
[59] Ibid
[60] Ibid
[61] Quoted in Guy Kawasaki’s, The Art of the Start: The time-tested, battle-hardened guide for anyone starting anything, Penguin Books, 2004 at page 167
[62] Ibid at page 167
[63] Ibid
[64] Luiz
[65] ibid
[66] Luiz
[67] ibid
[68] Ibid at 168
[69] Ibid
[70] Ibid 168-169. As set out by Guy Kawasaki
[71] Ibid
[72] Ibid
[73] At 169
[74] Ibid
[75] Ibid
[76] Based on a presentation by Luiza of Gibbs Business School, Johannesburg
[77] Luiza
[78] Luiz, ibid
[79] Joy Harcup, Head of Training, Berwin Leighton Paisner, ‘The future of the legal profession and learning: a view from practice’ at page 3
[80] ibid
[81] Harcup at page 4
[82] Harcup at page 2
[83] ibid
[84] Pippa Blakemore, BSc PGCE, ‘Developing your practice-Increase the value of current clients: The rainbow strategy’ A paper presented at the 2005 Conference of the International Bar Association at page 10
[85] Ibid
[86] Ibid at page 11
[87] Ibid
[88] Ibid
[89] Ibid
[90] Richard Susskind, first draft extract, www.timesonline.co.uk
Thursday, December 1, 2011
Judicial appointments Process Needs Reform
Judicial Appointments Process Needs Reform
By Tererai R. Mafukidze
The need to reform the Judiciary in general and the appointment, promotion and performance requirements in particular, has been palpable for many years. But the desire to create a strong and independent judiciary has always been lacking. The foundation of any democratic state lies on having a solid and democratic constitution supported by independent and credible institutions. The challenge that remains is for us to chart a new path through the new constitution to ensure that no individual, group or interest enjoys unfettered power to appoint and promote judicial officers at will. The appointment process must ensure that only those possessing the required legal skills and competency, undoubted integrity and solemn commitment to the protection of human rights, efficient delivery of justice and promotion of the rule of law.
Best Practices: Examples from the Region
The best practice in the appointment of judges in my view is provided for under the South African Constitution. Of course, like any beautifully written constitution, its fate lies with the integrity of persons who are given responsibilities under it. But it has aptly foreseen and averted some of the many problems that have been brought to light by the recent appointments and promotions.
In terms of the South African Constitution, the President appoints the Chief Justice and Deputy Chief Justice after consulting the Judicial Service Commission (JSC) and leaders of political parties represented in Parliament. Before appointment of a judge to the SA Constitutional Court, the JSC submits a list of nominees to the President. The list must contain three more names than the number of appointments to be made. The President must then appoint the judges from the list after consulting the Chief Justice and the leaders of political parties represented in Parliament.
Where the President is unhappy with the nominees and is unable to fill all the vacancies existing from the list, he is required to advise the JSC with reasons why the nominees are unacceptable. The President is required to provide reasons as a protection against abuse of power. The President may not for example state that some of the candidates are not suitable because they have been members of an opposition party. The Constitution provides that any ‘appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer’ and that ‘[T]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.’ An additional requirement for South African citizenship applies to appointments to the Constitutional Court.
In the event that the President decides against filling all the vacancies from the initial list, the JSC is required to supplement the names and return the supplemented list to the President. The President is required to make the outstanding appointments from the new list. He cannot send it back again.
And so, the President’s objections are limited by the required qualifications. More importantly he may only have one bite at the objection process.
The President appoints the President and Deputy President of the Supreme Court of Appeal after consulting the JSC. The Supreme Court of Appeal is the second highest court and virtually the highest in matters that are not constitutional. With regards to the appointment of all other judges including judges of the High Court, the President appoints on the advice of the JSC.
In Lesotho, for example, ordinary judges are appointed by the King ‘acting in accordance with the advice of the Judicial Service Commission’. As regards appeal court judges, the appointments are made by the King ‘acting in accordance with the advice of the Judicial Service Commission after consultation with the President (of the court)’. The provisions clearly make a difference between mere consultation and ‘acting on advice’ of a body such a JSC.
In Malawi, the appointment of the Chief Justice by the President requires approval by two-thirds of Parliament. In Uganda, the President appoints all judges acting on the advice of the Judicial Service Commission. But the appointments must be approved by Parliament.
In South Africa, when the President appoints heads and deputy heads of the country’s highest courts, he is required to consult first before he makes his decision. With regards to other appointments, he must act on the advice of the JSC. In fact, with regards to all other judicial appointments the President cannot even motivate the appointment of certain persons to be judges. The JSC has to generate the nominations to him.
This is clearly different from our current situation in Zimbabwe where the President himself (or as suspected through his political agents) nominates judges and appoints them irrespective of the advice of the JSC.
Publicity of Vacancies and Public Interviews
The practice in South Africa is that whenever there are vacancies, the JSC announces the existence of vacancies publicly. Malawi and Botswana have in the recent past advertised judicial positions. In Zimbabwe we often learn of existence of vacancies through the news of swearing-in of new judges. It is said that the Minister of Justice in fact approaches potential candidates. Claims by one lawyer that he was approached and offered judgeship on condition that he would rule in favour of the State were made a few years ago. Notwithstanding the denials, the opaque nature of approaches and the appointments sully the process.
The South African vacancy notice states that the interviews will be public and that members of the public and the media will be entitled to be present. The notice also states that any persons or bodies nominating a candidate can motivate their appointment by referring the JSC to the candidates’ qualifications and general fitness for appointment. The candidates are also advised that they may seek a ‘clearance certificate’ from their relevant professional body (e.g. Law Society or Bar Council) confirming their good standing. In Zimbabwe, there are no public interviews. I doubt even private ones take place. The JSC seems to receive a fait accompli.
For those who are already judges and are seeking promotion public interviews are also applied. In addition, in their nomination papers, they are required to justify and motivate appointment through their academic record, record of publications, reported judgements, significant decisions, record on appeal, record of reserved judgments and promptness with regards to delivery of judgments. They are also required to indicate their most significant contribution to the law and the pursuit of justice. This process ensures that those who may have been appointed before do not automatically qualify for further elevation unless they have shown great performance in their current office. This ensures that only those judges who perform well at the High Court deserve further elevation. It also ensures that judges are not promoted against their will!
For those seeking their first appointment to judicial office, their motivations must indicate academic record, areas of interest in the law, publications (and whether cited or not), frequency of court appearance, variety of legal work, most significant cases appeared in, community involvement, most significant contribution to South African law, disciplinary and criminal record, among others.
In Uganda, they have articulated in their Constitution the specific requirements for judicial office. The Chief Justice must be a person who has either been sitting at the Supreme Court for 20 years or has practised as an advocate for that long. Relatively strenuous periods of qualification are set out for other judicial officers.
While these nominal qualifications seem to hold, there is need to spell out additional qualities expected of judicial officers.
No such vetting process seems to happen in Zimbabwe before the President sends his names of proposed candidates to the JSC, though I have heard of visits to rural villages of proposed candidates by intelligence agents prior to appointment.
The nomination process and the interviews of those who are short-listed provide the opportunity for the public, interested professional bodies and JSC to examine the qualification of the candidates, their performance in their respective careers and their suitability for judicial office. The tragedy with the process in Zimbabwe is that the nominations come from the Executive via the President. He is not required to go through any process in assessing suitability. He consults the JSC but against their advice can still go ahead with the appointment or promotion. The President is not bound by the advice of a body that should in theory have greater knowledge and expertise with regards to assessing judicial suitability and performance.
This is indeed a tragic set of circumstances.
CONCLUSION
It is recommended that the opportunity, confusing, heart-rending and discredited as it is, provided by the current constitution-making process allows us to look at the manner in which judges have conducted themselves, how they have been appointed and promoted, how they have lacked independence and impartiality, how they have taken years to deliver judgments and ensure that necessary and urgent reform is undertaken. The composition of the JSC itself needs to be reviewed so that it does not become a proxy for political interests. To keep the system operating as it has will ensure that the judges we have in our courts remain subject to political interference, remain unaccountable and indeed become unaccountable charlatans of the political ruling class.
Tererai Mafukidze is a lawyer
By Tererai R. Mafukidze
The need to reform the Judiciary in general and the appointment, promotion and performance requirements in particular, has been palpable for many years. But the desire to create a strong and independent judiciary has always been lacking. The foundation of any democratic state lies on having a solid and democratic constitution supported by independent and credible institutions. The challenge that remains is for us to chart a new path through the new constitution to ensure that no individual, group or interest enjoys unfettered power to appoint and promote judicial officers at will. The appointment process must ensure that only those possessing the required legal skills and competency, undoubted integrity and solemn commitment to the protection of human rights, efficient delivery of justice and promotion of the rule of law.
Best Practices: Examples from the Region
The best practice in the appointment of judges in my view is provided for under the South African Constitution. Of course, like any beautifully written constitution, its fate lies with the integrity of persons who are given responsibilities under it. But it has aptly foreseen and averted some of the many problems that have been brought to light by the recent appointments and promotions.
In terms of the South African Constitution, the President appoints the Chief Justice and Deputy Chief Justice after consulting the Judicial Service Commission (JSC) and leaders of political parties represented in Parliament. Before appointment of a judge to the SA Constitutional Court, the JSC submits a list of nominees to the President. The list must contain three more names than the number of appointments to be made. The President must then appoint the judges from the list after consulting the Chief Justice and the leaders of political parties represented in Parliament.
Where the President is unhappy with the nominees and is unable to fill all the vacancies existing from the list, he is required to advise the JSC with reasons why the nominees are unacceptable. The President is required to provide reasons as a protection against abuse of power. The President may not for example state that some of the candidates are not suitable because they have been members of an opposition party. The Constitution provides that any ‘appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer’ and that ‘[T]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.’ An additional requirement for South African citizenship applies to appointments to the Constitutional Court.
In the event that the President decides against filling all the vacancies from the initial list, the JSC is required to supplement the names and return the supplemented list to the President. The President is required to make the outstanding appointments from the new list. He cannot send it back again.
And so, the President’s objections are limited by the required qualifications. More importantly he may only have one bite at the objection process.
The President appoints the President and Deputy President of the Supreme Court of Appeal after consulting the JSC. The Supreme Court of Appeal is the second highest court and virtually the highest in matters that are not constitutional. With regards to the appointment of all other judges including judges of the High Court, the President appoints on the advice of the JSC.
In Lesotho, for example, ordinary judges are appointed by the King ‘acting in accordance with the advice of the Judicial Service Commission’. As regards appeal court judges, the appointments are made by the King ‘acting in accordance with the advice of the Judicial Service Commission after consultation with the President (of the court)’. The provisions clearly make a difference between mere consultation and ‘acting on advice’ of a body such a JSC.
In Malawi, the appointment of the Chief Justice by the President requires approval by two-thirds of Parliament. In Uganda, the President appoints all judges acting on the advice of the Judicial Service Commission. But the appointments must be approved by Parliament.
In South Africa, when the President appoints heads and deputy heads of the country’s highest courts, he is required to consult first before he makes his decision. With regards to other appointments, he must act on the advice of the JSC. In fact, with regards to all other judicial appointments the President cannot even motivate the appointment of certain persons to be judges. The JSC has to generate the nominations to him.
This is clearly different from our current situation in Zimbabwe where the President himself (or as suspected through his political agents) nominates judges and appoints them irrespective of the advice of the JSC.
Publicity of Vacancies and Public Interviews
The practice in South Africa is that whenever there are vacancies, the JSC announces the existence of vacancies publicly. Malawi and Botswana have in the recent past advertised judicial positions. In Zimbabwe we often learn of existence of vacancies through the news of swearing-in of new judges. It is said that the Minister of Justice in fact approaches potential candidates. Claims by one lawyer that he was approached and offered judgeship on condition that he would rule in favour of the State were made a few years ago. Notwithstanding the denials, the opaque nature of approaches and the appointments sully the process.
The South African vacancy notice states that the interviews will be public and that members of the public and the media will be entitled to be present. The notice also states that any persons or bodies nominating a candidate can motivate their appointment by referring the JSC to the candidates’ qualifications and general fitness for appointment. The candidates are also advised that they may seek a ‘clearance certificate’ from their relevant professional body (e.g. Law Society or Bar Council) confirming their good standing. In Zimbabwe, there are no public interviews. I doubt even private ones take place. The JSC seems to receive a fait accompli.
For those who are already judges and are seeking promotion public interviews are also applied. In addition, in their nomination papers, they are required to justify and motivate appointment through their academic record, record of publications, reported judgements, significant decisions, record on appeal, record of reserved judgments and promptness with regards to delivery of judgments. They are also required to indicate their most significant contribution to the law and the pursuit of justice. This process ensures that those who may have been appointed before do not automatically qualify for further elevation unless they have shown great performance in their current office. This ensures that only those judges who perform well at the High Court deserve further elevation. It also ensures that judges are not promoted against their will!
For those seeking their first appointment to judicial office, their motivations must indicate academic record, areas of interest in the law, publications (and whether cited or not), frequency of court appearance, variety of legal work, most significant cases appeared in, community involvement, most significant contribution to South African law, disciplinary and criminal record, among others.
In Uganda, they have articulated in their Constitution the specific requirements for judicial office. The Chief Justice must be a person who has either been sitting at the Supreme Court for 20 years or has practised as an advocate for that long. Relatively strenuous periods of qualification are set out for other judicial officers.
While these nominal qualifications seem to hold, there is need to spell out additional qualities expected of judicial officers.
No such vetting process seems to happen in Zimbabwe before the President sends his names of proposed candidates to the JSC, though I have heard of visits to rural villages of proposed candidates by intelligence agents prior to appointment.
The nomination process and the interviews of those who are short-listed provide the opportunity for the public, interested professional bodies and JSC to examine the qualification of the candidates, their performance in their respective careers and their suitability for judicial office. The tragedy with the process in Zimbabwe is that the nominations come from the Executive via the President. He is not required to go through any process in assessing suitability. He consults the JSC but against their advice can still go ahead with the appointment or promotion. The President is not bound by the advice of a body that should in theory have greater knowledge and expertise with regards to assessing judicial suitability and performance.
This is indeed a tragic set of circumstances.
CONCLUSION
It is recommended that the opportunity, confusing, heart-rending and discredited as it is, provided by the current constitution-making process allows us to look at the manner in which judges have conducted themselves, how they have been appointed and promoted, how they have lacked independence and impartiality, how they have taken years to deliver judgments and ensure that necessary and urgent reform is undertaken. The composition of the JSC itself needs to be reviewed so that it does not become a proxy for political interests. To keep the system operating as it has will ensure that the judges we have in our courts remain subject to political interference, remain unaccountable and indeed become unaccountable charlatans of the political ruling class.
Tererai Mafukidze is a lawyer
Free Access to Law, Open Justice and the Right to Privacy
“FREE ACCESS TO LAW, OPEN JUSTICE AND THE RIGHT TO PRIVACY”
BY TERERAI R. MAFUKIDZE, CO-ORDINATOR OF THE SOUTHERN AFRICAN JUDGES COMMISSION
A paper presented at the Law Society of Zimbabwe Summer School held at Troutbeck Inn, Nyanga, Zimbabwe from the 8th to the 11 November 2007
It was once so desperate for the Court of Appeal of England and Wales to distribute a judgment that clarified a point of procedure that had caused a lot of confusion countrywide that it opened its 1997 judgment with this wish;
“The text of this judgment is to be made available immediately on the Internet. If this country was in the same happy position as Australia, where the administration of the law is benefiting from the pioneering enterprise of Australian Legal Information Institute (AUSTLII), we would have been able to make this judgment immediately available in electronic form to every judge and practitioner in the country without the burdensome costs that distribution of hard copies would necessarily impose ...." [1]
I must hasten to add that within the next four years, BAILII[2] (British and Irish Legal Information Institute) was formed to publish judgments freely on the Internet. Just two weeks ago, the Irish and British approached the family of LIIs at the Montreal conference[3] to request that the Irish form their own LII. The request was immediately granted. We were all blissfully surprised that the Irish and British had managed to co-operate for these 7 long years.
It should be a matter of great concern to all lawyers, judges, magistrates and legislators that the assumption that the law is known to all citizens continues to be made without the corresponding responsibility to truly make the law available to the citizenry. It is a matter of convenience if not outright fraud to work on the presumption that the knowledge of the law is universal when we are all too aware knowledge of the law cannot be presumed even amongst a gathering of lawyers.
I do not believe that there are souls, let alone amongst you my learned friends who would have the courage to open the centuries old volume of Grotius during a consultation, and let alone argument in court. We have assumed that the common law from these sources has gracefully found its way out of the big books or corpus iuiris to reside in our case law and textbooks. For most problems of the common law, we rely mostly on decided cases of days of yonder. We have with some worrying comfort conspired that most or all principles have been litigated upon.
The need to consistently keep a reliable record of the decisions of our courts in beyond argument. For any practitioner in a common law jurisdiction, precedent is the source of law and no doubt the foundation of serious legal research.
Stare decisis or Precedent
The stare decisis [4]doctrine means that a decision previously made by a court on a point forms precedence for guidance to that court and binds lower courts. In practice, a judgment of one judge of the High Court would not bind another judge at the same level. However, a decision of 2 judges would bind a judge sitting alone. At the same time, a decision of the higher court would bind judges in courts below.
The rationale of this practice is that this preserves the certainty, stability and symmetry of a country's jurisprudence. Students of jurisprudence have over the years grappled with whether or not this practice improves justice or unduly handicaps it. Some courts take the more strict view that they bound by their own decisions while others feel free in exceptional cases to depart from precedent.
We are all aware of the 1981 Practice Direction issued by Fieldsend CJ[5] on precedent in these words;
“With the promulgation of the Supreme Court Act, 1981 (No. 28 of 1981), it is right that the Supreme Court should make known its practice in relation to the binding effect of its own Judgments and those of its predecessors, particularly in the light of section 24 of that Act. F
The Court considers it of importance that there be a degree of certainty upon which people can rely in the conduct of their affairs. Precedent is an important factor upon which to decide both what the law is and how it is to be applied in particular cases. It also serves as a proper starting point for any development of the law.
Nevertheless, particularly in a changing society, it is essential for the Court to have some flexibility so as not to restrict unduly its power to develop the law in proper cases to meet changing conditions and injustice in particular cases.
For the future this Court, while treating its past decisions and those of its predecessors as normally binding, will depart from a previous decision when it appears right to do so, applying the principles generally accepted under our law.”
Couched in polite terms, this Practice direction announced a shift in jurisprudence at Independence. Will a similar one be necessary in our jurisdiction in future?
The practice of the law is enriched and made easier through access to precedents particularly in adversarial systems. In the current set up, most of the poor countries in Southern and East Africa lack resources. I will not bore you with the specific horrendous indigence of our own country. Many of these countries have no recognisable law reporting structures. They rely on commercial publishers, who on commercial grounds only publish a selection of cases and at frequencies that justify commercial interests. The cost in countries where there is low consumption is high, running into thousands of dollars per year, a big cost on the many small practices in these countries. (My reference to dollars in this context is to a currency that bears the words, “in God we trust” and no other! Certainly not the one that promises to pay the bearer on demand!”)
The circumstances of the Zimbabwe Law Reports are well known. We have not published law reports from the latter part of 2002 to date.[6] When these are going to be published, in God we trust. It is important that judgments of the courts which form a big part of what is the law be easily accessible to the public. We lawyers are no less culpable in the state of affairs. How many non-lawyers read law reports? We are like bricklayers without trowels. I recall the sad episode involving the Law Society's[7] proposal to buy a new retro-graphic machine for the High Court. The initiative died because lawyers could not agree on ownership of the machine once it was bought from funds donated by members of the Law Society.
It is a time honoured duty of every lawyer to prepare for any case that he is dealing with. This is one of the best ways in which you can keep up with the competition. Access to precedents and the law in broad terms becomes crucial. The availability of the most recent case law would affect your litigation, negotiations, drafting, preparation, legal advice etc. A decision on tax law can make a huge difference on tax liability thereby saving your clients a huge fortune.
Ultimately, access to law affects the cost of your services and the allocation of energy and time. The lawyer with the least refined research methods will charge more for their research.
Southern African Judges Commission (SAJC)[8]
The SAJC is a commission formed by 15 Chief Justices from the Southern and Eastern African regions. (The member countries are Angola, Mozambique, Malawi, Zambia, Namibia, Botswana, Lesotho, Swaziland, South Africa, Zimbabwe, Seychelles, Mauritius, Kenya, Uganda and Tanzania).The main objective of the Commission is to promote the rule of law, democracy, judicial independence and human rights. The Commission has also made one of its objectives, the publication of the decisions of the superior courts in each jurisdiction on the Internet.
Southern African Legal Information Institute (SAFLII) Southern African Legal Information Institute (SAFLII)[9]
The work of the Southern African Legal Information Institute (SAFLII) and its effort to provide free on line judgments of the superior courts from 15 countries will be spoken about by my colleague Kerry Anderson. SAFLII belongs to the growing family of Free Access to Law Movement of LIIs like BAILII, Austlii, and CanLii etc.
The LIIs subscribe to the Montreal declaration on Free Access to Law which provides among other things that;
l Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law;
l Public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge;
l Organisations such as legal information institutes have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be be published by other parties;
*public legal information includes sources of law such as legislation, case law and treaties, as well as various secondary (interpretive) public source, such as reports on preparatory work and law reform, and resulting from boards of inquiry. It includes legal documents created as a result of public funding.*
The LIIs publish via the Internet, provide free and anonymous public access to that information. They do not impede others from obtaining public legal information from its sources or publishing it.
To date thousands of judgments from at least 10 countries have been published freely on www.saflii.org. The collection process is underway with the most recent judgments being collected and posted as soon as they are received. Judgments are being collected from the superior courts including special courts. At the same time, SAFLII is collecting older cases for publication.
SAFLII does not in publication make any distinction between what is “Reportable” and “Non-Reportable”. It publishes all judgments from the selected countries' superior courts. With the advantage of the unlimited space that information technology provides, it has become unnecessary to follow the strict distinction and culling of judgments done by court reporters or by commercial publishers. Over time, many courts appear to have forgotten that this classification was done out of practicality rather than any distinction in terms of legal merit. The position taken by SAFLII is that every judicial decision is law even if it does not state any new legal principle. Obviously, every decision applies some principle of law to a particular set of facts and in so doing becomes the law on that particular issue.
While SAFLII provides citations of hard-copy publications, it will not characterise any decision as unreported simply because it has not been published in hard copy. Ultimately, there should be no distinction made between decisions published in print and online.
Free access ensures that;
l transparency of the courts is promoted through public scrutiny;
l courts help in defeating ignorance of the law;
l access to judicial precedents forms pillars for consistency and competence
l legal research and education are improved
l the production of judgments is streamlined and made efficient;
l legal costs are drastically reduced. Lawyers do not spend as many hours prodding from one law report to the next. Information is processed by efficient electronic searching tools and is easily available;
l the cost of storage and retrieval of information and judgments within a court system is reduced;
l quality of justice will improve due to improved access to information by judges, lawyers and researchers;
l the playing field in an adversarial system between litigants is more leveled as there is more or less equal access to information. We all know the barren nature of libraries owned by small law firms. The size of the firm is usually directly proportional to the size of the library;
l improve lobby for legislation;
l improve the quality and effectiveness of regional courts;
l ultimately, the benefit of an open, transparent and credible justice system does wonders for foreign direct investment, cross border practices, etc;
However, there are numerous obstacles to publishing court decisions on the Internet.
Some of these are;
Funding-the governments always accept the responsibility to fund and support the publication of statutes but appear hugely reluctant to plough funds into the publication of judgments. This is a state responsibility that is shunned. The state of law reporting in the 15 countries I have referred to bears overwhelming testimony. As a result, donor-funding supported the launch and continued existence of SAFLII. The excellent state of Kenyalaw[10] bears testimony to the good that can come out if the state assumes its responsibilities.
Access to legacy material-in many of the countries covered, judgments from the previous years are not stored in any formal electronic database or central archive. The collection work therefore necessarily involves ploughing through dusty and chaotic libraries with limited means to assist. Scanners have been employed to transform hard-copy material into electronic records that are published on the Internet. Some of the judgments were typed on flimsy paper which is difficult to scan.
We have however began to ask ourself questions. How far back should we go in collecting judgments of yester year? This is the debate about quality and quantity. Setlogelo v Setlogelo may be the locus classicus for interdicts, but do we not have cases that are recent that deal with the legal requirements in similar terms if not better? As we speak, the British have developed rules that actually limit the number of cases you can refer to in your heads of argument. The Internet provides so much that you could by a click of a button get all the summary judgment decisions of the SA high courts. But do we need to refer to all of them in our heads of argument?
Regrettably, in our part of the world, we are also archives of legal material and not simply law reporters.
Lack of Internet connectivity
I recall the debate I and Unity had with Deborah Baron the Director of the LRF. In her view, it was better to concentrate first on hard copies before the Internet since the clientele had no access to Internet. In the end we won her over on mainly the basis that the Internet was cheaper and could publish quicker than the press machine.
there is a region-wide lack of broadband
limited communications infrastructure
lack of funds for proprietary solutions and software. Some of you run pirated Microsoft software innocently. The cost of licences is prohibitive.
lack of local technology skills
Lack of Court IT infrastructure-courts in the Southern and Eastern African Region are generally poorly funded. They do not have computers, printers, servers, Internet equipment, email etc. Judges are generally thin on IT skills and display a not-so-keen inclination to learn. The libraries are poorly resourced. As a result, the judgment preparation is not lacks the necessary tools to make judgments suit the Internet requirements. SAFLII is currently working on judgment preparation modules which will make the preparation easier, easy to publish, standard compliant if not uniform, easily searchable and have advanced functionality for enhanced legal research across jurisdictions.
We have a dire situation in which the Judiciary is treated as a Department in the Ministry of Justice and not the Third Arm of the State. Financial independence of the courts is central to the independence of the Judiciary. For so long as the Judiciary cannot allocate its own resources independently it can never be free from Executive control.
Poor IT use in law schools, judicial colleges and by legal practitioners-there is a worryingly slow embracing of IT skills by law schools and lawyers. As a result, the use of the free legal resources is yet to spread across the entire profession. The lawyers in the state offices sit at the bottom of the list with virtually little access to the Internet and well resourced libraries. This disparity in resources continues to hamper the administration of justice. While lawyers in private practice may enjoy the unfair advantage, it is in the long run a self defeating circumstance. It is the lawyers who work for the state who will influence the quality of the legislation we get, the attitude of the state on human rights, the bargains you can negotiate the quality of the international treaties and so forth.
Differences in legal systems-the SAFLII project crosses the divide that legal systems provide. From the Roman-Dutch law influenced South Africa, Swaziland, Namibia, Botswana, Zimbabwe, Lesotho, to the more English law influenced systems like Tanzania, via the Civil law systems in Mozambique and Angola. Language barriers and approach to precedent is a challenge. Civil law is less precedent based.
OPEN JUSTICE AND PRIVACY
Decisions made in private and archived very far off from public scrutiny pose the greatest threat to the rights of citizens to access justice and full protection of the law. It is a well known cliché that justice must not only be done but be seen to be done. Judges who operate in secrecy create the greatest temptation to corruption. Open justice is enhanced by the opportunity for all and sundry to access and comment on judicial decisions.
One of the biggest challenges to online publication of judgments is open justice versus privacy. What details of the parties' or other concerned persons should be published? The line has never been clearly drawn both in statute and in the common law. The Internet by its nature offers a new and broader challenge. It is now possible to collate a person’s profile using details available by simple typing in their names through a search engine. This practice is commonly termed “googling” a person.
There is a serious concern that while the principle of open justice is one of the cornerstones of a transparent and accountable justice system, how open should the system be to a total stranger in a far off land employing the Web as a tool. Where does one strike the balance between the value of an open system in the public interest and the need to protect legitimate privacy rights? As the axiom goes, justice must not only be done, but seen to be done.
THE ZIMBABWE CONSTITUTION
The Constitution of Zimbabwe provides in s 18 (10) and s 18 (11) that trials shall be held in public. The court is given the power to exclude the public where it is permitted by a law;
l where necessary or expedient in circumstances would prejudice the interests of justice, or in interlocutory proceedings, or in the interest of public morality, the welfare of persons under the age of 21[11] or the protection of private lives of persons concerned in the proceedings;
l or by law be empowered or required so to do in the interests of defence, public safety, public order or the economic interests of the state.
The Statutes
Both the High Court and the Supreme Court Acts in identical terms provide that;
“Except as otherwise provided in the rules of court or in any other law, all proceedings in the Supreme Court shall be carried on in open court and the pleadings and proceedings thereof shall be in the English Language.” s31 Supreme Court Act, [Chapter 7:13]; (see also s49, High Court Act [Chapter 7:06])
Clearly, open justice is a principle well established in our law. The history of open justice is long. I do not wish to transport you in these days of fuel shortages that far back. Let me restrict me to a few sources.
The United States Bill of Rights, Article 14 of the International Covenant on Civil and political Rights and Article 6 of the European Convention of Human Rights recognise this right as a right to “a fair and public hearing by an independent and impartial tribunal established by law”
Jeremy Bentham, put it thus;
“In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spirit to exertion and the surest of all guards against improbity. It keeps the judge, while trying, under trial.”
Bowling (ed) Works of Jeremy Bentham (1843) vol 4 at 316-317.
This passage was cited with approval nearly a hundred years ago in Scott v Scott, 1913 AC 417. This English case involved a woman who had successfully sued for the annulment of her marriage on the grounds of her husband's impotence. She had obtained transcripts of the hearing and circulated them to his father, his sister and a third party. Thereafter the husband sought an order holding her to be in contempt of court on the grounds that she had published information that had been disclosed in a closed hearing. As you can imagine, this annulment proceedings raised inherently private matters at a time when sensitive problems like male impotence were not discussed widely. I do not hazard to opine that much has changed in much of this country.
The House of Lords, quickly rejected the suggestion that litigants should be spared the humiliation, pain or embarrassment of having private matters publicly discussed. Lord Shaw called open justice, “a sound and very sacred part of the constitution of the country and the administration of justice”.
In his paper, “The Principle of Open Justice: A comparative Perspective”, Justice Spigelman AC, Chief Justice of New South Wales, stated;
“The fundamental rule is that judicial proceedings must be conducted in an open court to which the public and the press have access. A court cannot agree to sit in camera, even that is by the consent of the parties. The exceptions to the fundamental rule are few and more strictly defined.”[12]
Many rules of procedure have arisen from this requirement of open and public justice. I will focus on one that has brought the conflict between open justice and privacy. It is the principle that judicial accountability requires that the judge publishes reasons for the decision. The rule requires publication not only to the parties but to the public.
“The importance of ensuring that justice be done openly has not only survived: it has now become ‘one of the hallmarks of a democratic society’ . . . . The open court principle, seen as ‘the very soul of justice’ and the ‘security of securities’, acts as a guarantee that justice is administered in a non-arbitrary manner, according to the rule of law.”[13]
"Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticise, applaud or castigate the conduct of their courts and, ultimately such free and frank debate about judicial proceedings serve more than one vital public purpose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the more important aspirational attributes prescribed for the judiciary by the Constitution.” [14]
The Court went further, relying on the decision of the US Supreme Court in Richmond Newspapers Inc v Virginia 448 US 555 (1980) at 570–2:
“Ideally, also, robust and informed public debate about judicial affairs promotes peace and stability by convincing those who have been wronged that the legal process is preferable to vengeance; by assuring the meek and humble that might is not right; by satisfying business people that commercial undertakings can be efficiently enforced; and, ultimately, as far as they all are concerned, that there exists a set of just norms and a trustworthy mechanism for their enforcement. In a memorable passage in Richmond Newspapers Inc v Virginia, Burger CJ characterised these objectives thus:
“The early history of open trials in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value.
. . .
When a shocking crime occurs, a community reaction of outrage and public protest often follows. . . . Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. . . .
To work effectively, it is important that society's criminal process ''satisfy the appearance of justice'' . . . and the appearance of justice can best be provided by allowing people to observe it.'”
The Canadian view
"It is also worth noting that there is an important educational aspect to an open court process. It provides an opportunity for the members of the community to acquire an understanding of how the courts work and how what goes on there affects them."[15]
The US Supreme Court:
“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case:
‘The educative effect of public attendance is a material advantage. Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy.’[16]
Where is the line drawn?
Van der Westhuizen J (as he then was)
“It is a well-known principle in our law and public life that, proceedings before this court should take place in public. This principle is also recognised and guaranteed in s 34 of the Constitution of the Republic of South Africa Act 108 of 1996. Section C 16 of the Supreme Court Act 59 of 1959 states that a court has the discretion to order the hearing of cases in camera in special cases...The principle and the ideal of a public hearing should not lightly be departed from. The Prinsloos' case is by no means special, as argued by counsel for the applicant. Intimate personal details are often disclosed out in courtrooms in front of members of the public and the media. This is unfortunate for the individuals involved, but their privacy is in such cases outweighed by values such that courts in a E democratic country function with transparency, so that any member of the public can see that justice is being done. It is not uncommon for a nervous, embarrassed and emotionally fragile plaintiff in a divorce court to have to explain under oath in a courtroom filled with a large number of onlookers, how a spouse committed adultery or how alcoholism, F drug abuse, family violence, or even incest wrecked a marriage, and for the victims of violent crime to have to explain in front of the public and the media how the death, rape or mutilation of oneself or a loved one, such as a child, was experienced and how it may have ruined people's lives. In this case aspects of the private lives of the G Prinsloos - and of course the previous litigation - have already been the topic of sensational reporting for a considerable time.” [17]
Statute
The Criminal Procedure and Evidence Act[18] deals with the dilemma in a criminal trial as follows;
It prohibits
l the publication by radio or television or in any document produced by printing or by any other method of multiplication, the name, address, school or place of occupation or other information likely to reveal the identity of any person under the age of 18 who is being or has bee tried in any court on a charge of having committed any offence; Provided, the judge or magistrate may during trial or the Minister after the trial permit in the circumstances of the case where it is just and equitable and in the public interest or in the interests of a particular person;
l the publication of identities of complainants or witnesses in sexual offences; victims of extortion or similar offences;
l publication of identities of juvenile witnesses
The Maintenance Act and the Children's Act also give the judicial officer power to hold a closed hearing, and by extension can protect the publication of certain information arising from such hearings.
To some extent, the current provisions of the law go some way in clarifying exceptions to open and public hearings.
The Peculiar Internet Challenge
The problem that SAFLII faces is that not all the countries it covers have similar legislation. Secondly, the problems in the Internet age go beyond the current statutory directives.
Commendably, the Canadian Judicial Council[19] has produced a Recommended Protocol for the Use of Personal Information in Judgments. The Protocol notes four objectives to be taken into account in determining what information should be included or omitted from reasons for judgments:
l ensuring full compliance with the law;
l fostering an open and accountable judicial system;
l protecting the privacy of justice system participants where appropriate; and
l maintaining the readability of reasons for judgment.
It also deals with what it terms three levels of protection;
“Personal data identifiers: omitting personal data identifiers which by their very nature are fundamental to an individual's right to privacy;
Legal Prohibitions on Publication: omitting information which, if published, could disclose the identity of certain participants in the judicial proceeding in violation of a statutory or common law restriction on publication; and;
Discretionary Protection of Privacy Rights: omitting other personal information to prevent the identification of parties where the circumstances are such that the dissemination of this information over Internet could harm innocent persons or subvert the course of justice.”
These broad guidelines also go into some detail in the protocol about what they constitute. We operate in a wide terrain with different cultures and social sensitivities. The major challenge is that some of the countries do not even have laws that deal with privacy matters in judgments. In many cases, the judges clearly lack training in identifying what may constitute unpublishable private information. Cases involving persons who are HIV positive have caused some controversy, with one judge in Botswana taking the initiative to anonymise the parties while others would have done otherwise due to the absence of common or statutory prohibitions. The debate about the privacy issues relating to the disclosure of the HIV status of persons in a book was a subject of litigation in SA recently. The Constitutional Court of South Africa still had dissenting opinions on the matter. The decision indicates that there is no universality or uniformity on what constitutes unpublishable private information, even in judgments.
Legal practitioners have an important role to play in the protection of privacy. As the lawyers representing the parties, or involved in the trials, it is your duty to ensure that judges remain aware of the privacy issues involved. It is the lawyers again who must ensure that any agreed standards are being enforced.
Due to the disparity in legal enforcement of privacy issues, SAFLII at present takes decisions to exclude certain private information considered unsuitable for publication. Yet SAFLII is not the be all and end all. The ultimate goal is to influence courts to enforce uniform privacy policies in their judgments through the use of Protocols like the Canadian one referred to above. Parliaments will also need to pass laws that effectively deal with these issues.
Many LII sites already exclude search engines from indexing their sites. This is not a permanent solution. For in a way this limits free access to law.
CONCLUSION
In this paper, I have just attempted to show how free online access to judgments can enhance your legal practice, the rule of law, democracy, legal research[20] etc. It is not an endeavour without pitfalls. It is not an endeavour that can survive on its own. It deserves the support of all practitioners and judges and our governments.
In our country today, it is hard to find heroes in public life. I was surprised to stumble upon one from over a hundred years ago. The esteemed warrior Gwaimani. Arrested during the 1895-97 first Chimurenga War for killing a whiteman and his Zulu servants near Gweru. He was brought to trial and admitted everything without any remorse. On being told that he would be hanged by the neck as punishment, Gwaimani loudly informed the authorities that “No white man would hang Gwaimani” He repeated this mantra many times after conviction while in custody awaiting execution. The authorities were shocked to find one morning Gwaimani dead in his cell. He had taken some poisonous herbs brought by one of his visitors. He just could not allow a white man to hang him. Gwaimani was a man of principle. In a small town in this country, a man was brought before the town magistrate to answer charges of assault GBH. The magistrate who recognised the man enquired why he had savagely clobbered a fellow citizen, to which he replied; “Your worship, the man said I had the ugliest wife he had ever seen!” The magistrate shocked retorted, “But you have no wife Mr. Ngulube!” “Yes your Worship I have no wife. I was just fighting the principle of the thing!” Like Gwaimani and Ngulube, if you have not had much illumination from my presentation on open access to law, just fight for the principle of the thing!
Mr Chairman allow me to express to this congress of lawyers my heartfelt condolences for the loss of one of the bravest cadres on the front. Lawrence was a vivacious and colourful character. I had known him since 1995 when he entered law school. He would not escape notice as he was one of the noisiest students in the mini amphi-theatre outside the law library, so fondly called the quorum. I looked forward to meeting Lawrence and collecting the 5 Bohlingers he promised me for asking Justice Kriegler to speak at this Summer School. In our loss, we have gained a great advocate for our cause in another world. We would not ask for a better advocate than Lawrence. As I imagine his place in the other world, I cannot help but remember what Winston Churchill said on his 75th Birthday;
“I am ready to meet my Maker. Whether he is prepared for the ordeal of meeting me is another matter.”
Zorora murugare munun'una. Zvapasi zvinonyenga. Kudenga tozofara!
TR Mafukidze
Mafukidze@concourt.org.za
[1] Per Saville LJ, Bannister v SGB plc and Ors and 19 other appeals [1997] EWCA Civ 1524 (25th April, 1997)
[2] See www.bailii.org
[3] 8th International Conference on Law via Internet, Montreal, Canada, 23-26 October 2007
[4] See generally, Susan W. Brenner, Precedent Inflation, Transaction Publishers, 1992
[5] See Practice Direction 2 of 1981
[6] The Legal Resources Foundation is working hard to ensure that the backlog in cleared.
[7] 2002 circular from the then Law Society of Zimbabwe Secretary, Mr. W Mapombere
[8] www.sajc.org.za, website will be accessible soon.
[9] See www.saflii.org
[10] I urge you to visit www.kenyalaw.org
[11] I have been unable to verify this queer age restriction.
[12] See, www.lawlink.nsw.gov.au/
[13] Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1996] 3 S.C.R. 480 at para 22
[14] S v Mamabolo 2001 (3) SA 409 (CC)
[15] Edmonton Journal v Attorney General for Alberta, Attorney General of Canada and Attorney General of Ontario [1989] 2 SCR 1326, 64 DLR (4th) 577 at para 21.
[16] Richmond Newspapers Inc v Virginia 448 US 555 (1980) at 572
[17] Prinsloo v RCP Media Ltd t/a Rapport, 2003 (4) SA 456 (T) at 462
[18] Criminal Procedure and Evidence Act [Chapter ]
[19] Canadian Judicial Council, Judges’ Technology Advisory Committee, “Use of Personal Information in Judgments and Recommended Protocol”. Approved by the Canadian Judicial Council, March 2005.
[20] See paper by TR Mafukidze,”The Promotion of the Rule of Law in Africa: Open standards and ICTs to support open access to the court system” presented at the International Conference on African Legal Resources: Challenges and Opportunities of Legislative Informatics, March 2007,Abuja, Nigeria
BY TERERAI R. MAFUKIDZE, CO-ORDINATOR OF THE SOUTHERN AFRICAN JUDGES COMMISSION
A paper presented at the Law Society of Zimbabwe Summer School held at Troutbeck Inn, Nyanga, Zimbabwe from the 8th to the 11 November 2007
It was once so desperate for the Court of Appeal of England and Wales to distribute a judgment that clarified a point of procedure that had caused a lot of confusion countrywide that it opened its 1997 judgment with this wish;
“The text of this judgment is to be made available immediately on the Internet. If this country was in the same happy position as Australia, where the administration of the law is benefiting from the pioneering enterprise of Australian Legal Information Institute (AUSTLII), we would have been able to make this judgment immediately available in electronic form to every judge and practitioner in the country without the burdensome costs that distribution of hard copies would necessarily impose ...." [1]
I must hasten to add that within the next four years, BAILII[2] (British and Irish Legal Information Institute) was formed to publish judgments freely on the Internet. Just two weeks ago, the Irish and British approached the family of LIIs at the Montreal conference[3] to request that the Irish form their own LII. The request was immediately granted. We were all blissfully surprised that the Irish and British had managed to co-operate for these 7 long years.
It should be a matter of great concern to all lawyers, judges, magistrates and legislators that the assumption that the law is known to all citizens continues to be made without the corresponding responsibility to truly make the law available to the citizenry. It is a matter of convenience if not outright fraud to work on the presumption that the knowledge of the law is universal when we are all too aware knowledge of the law cannot be presumed even amongst a gathering of lawyers.
I do not believe that there are souls, let alone amongst you my learned friends who would have the courage to open the centuries old volume of Grotius during a consultation, and let alone argument in court. We have assumed that the common law from these sources has gracefully found its way out of the big books or corpus iuiris to reside in our case law and textbooks. For most problems of the common law, we rely mostly on decided cases of days of yonder. We have with some worrying comfort conspired that most or all principles have been litigated upon.
The need to consistently keep a reliable record of the decisions of our courts in beyond argument. For any practitioner in a common law jurisdiction, precedent is the source of law and no doubt the foundation of serious legal research.
Stare decisis or Precedent
The stare decisis [4]doctrine means that a decision previously made by a court on a point forms precedence for guidance to that court and binds lower courts. In practice, a judgment of one judge of the High Court would not bind another judge at the same level. However, a decision of 2 judges would bind a judge sitting alone. At the same time, a decision of the higher court would bind judges in courts below.
The rationale of this practice is that this preserves the certainty, stability and symmetry of a country's jurisprudence. Students of jurisprudence have over the years grappled with whether or not this practice improves justice or unduly handicaps it. Some courts take the more strict view that they bound by their own decisions while others feel free in exceptional cases to depart from precedent.
We are all aware of the 1981 Practice Direction issued by Fieldsend CJ[5] on precedent in these words;
“With the promulgation of the Supreme Court Act, 1981 (No. 28 of 1981), it is right that the Supreme Court should make known its practice in relation to the binding effect of its own Judgments and those of its predecessors, particularly in the light of section 24 of that Act. F
The Court considers it of importance that there be a degree of certainty upon which people can rely in the conduct of their affairs. Precedent is an important factor upon which to decide both what the law is and how it is to be applied in particular cases. It also serves as a proper starting point for any development of the law.
Nevertheless, particularly in a changing society, it is essential for the Court to have some flexibility so as not to restrict unduly its power to develop the law in proper cases to meet changing conditions and injustice in particular cases.
For the future this Court, while treating its past decisions and those of its predecessors as normally binding, will depart from a previous decision when it appears right to do so, applying the principles generally accepted under our law.”
Couched in polite terms, this Practice direction announced a shift in jurisprudence at Independence. Will a similar one be necessary in our jurisdiction in future?
The practice of the law is enriched and made easier through access to precedents particularly in adversarial systems. In the current set up, most of the poor countries in Southern and East Africa lack resources. I will not bore you with the specific horrendous indigence of our own country. Many of these countries have no recognisable law reporting structures. They rely on commercial publishers, who on commercial grounds only publish a selection of cases and at frequencies that justify commercial interests. The cost in countries where there is low consumption is high, running into thousands of dollars per year, a big cost on the many small practices in these countries. (My reference to dollars in this context is to a currency that bears the words, “in God we trust” and no other! Certainly not the one that promises to pay the bearer on demand!”)
The circumstances of the Zimbabwe Law Reports are well known. We have not published law reports from the latter part of 2002 to date.[6] When these are going to be published, in God we trust. It is important that judgments of the courts which form a big part of what is the law be easily accessible to the public. We lawyers are no less culpable in the state of affairs. How many non-lawyers read law reports? We are like bricklayers without trowels. I recall the sad episode involving the Law Society's[7] proposal to buy a new retro-graphic machine for the High Court. The initiative died because lawyers could not agree on ownership of the machine once it was bought from funds donated by members of the Law Society.
It is a time honoured duty of every lawyer to prepare for any case that he is dealing with. This is one of the best ways in which you can keep up with the competition. Access to precedents and the law in broad terms becomes crucial. The availability of the most recent case law would affect your litigation, negotiations, drafting, preparation, legal advice etc. A decision on tax law can make a huge difference on tax liability thereby saving your clients a huge fortune.
Ultimately, access to law affects the cost of your services and the allocation of energy and time. The lawyer with the least refined research methods will charge more for their research.
Southern African Judges Commission (SAJC)[8]
The SAJC is a commission formed by 15 Chief Justices from the Southern and Eastern African regions. (The member countries are Angola, Mozambique, Malawi, Zambia, Namibia, Botswana, Lesotho, Swaziland, South Africa, Zimbabwe, Seychelles, Mauritius, Kenya, Uganda and Tanzania).The main objective of the Commission is to promote the rule of law, democracy, judicial independence and human rights. The Commission has also made one of its objectives, the publication of the decisions of the superior courts in each jurisdiction on the Internet.
Southern African Legal Information Institute (SAFLII) Southern African Legal Information Institute (SAFLII)[9]
The work of the Southern African Legal Information Institute (SAFLII) and its effort to provide free on line judgments of the superior courts from 15 countries will be spoken about by my colleague Kerry Anderson. SAFLII belongs to the growing family of Free Access to Law Movement of LIIs like BAILII, Austlii, and CanLii etc.
The LIIs subscribe to the Montreal declaration on Free Access to Law which provides among other things that;
l Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law;
l Public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge;
l Organisations such as legal information institutes have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be be published by other parties;
*public legal information includes sources of law such as legislation, case law and treaties, as well as various secondary (interpretive) public source, such as reports on preparatory work and law reform, and resulting from boards of inquiry. It includes legal documents created as a result of public funding.*
The LIIs publish via the Internet, provide free and anonymous public access to that information. They do not impede others from obtaining public legal information from its sources or publishing it.
To date thousands of judgments from at least 10 countries have been published freely on www.saflii.org. The collection process is underway with the most recent judgments being collected and posted as soon as they are received. Judgments are being collected from the superior courts including special courts. At the same time, SAFLII is collecting older cases for publication.
SAFLII does not in publication make any distinction between what is “Reportable” and “Non-Reportable”. It publishes all judgments from the selected countries' superior courts. With the advantage of the unlimited space that information technology provides, it has become unnecessary to follow the strict distinction and culling of judgments done by court reporters or by commercial publishers. Over time, many courts appear to have forgotten that this classification was done out of practicality rather than any distinction in terms of legal merit. The position taken by SAFLII is that every judicial decision is law even if it does not state any new legal principle. Obviously, every decision applies some principle of law to a particular set of facts and in so doing becomes the law on that particular issue.
While SAFLII provides citations of hard-copy publications, it will not characterise any decision as unreported simply because it has not been published in hard copy. Ultimately, there should be no distinction made between decisions published in print and online.
Free access ensures that;
l transparency of the courts is promoted through public scrutiny;
l courts help in defeating ignorance of the law;
l access to judicial precedents forms pillars for consistency and competence
l legal research and education are improved
l the production of judgments is streamlined and made efficient;
l legal costs are drastically reduced. Lawyers do not spend as many hours prodding from one law report to the next. Information is processed by efficient electronic searching tools and is easily available;
l the cost of storage and retrieval of information and judgments within a court system is reduced;
l quality of justice will improve due to improved access to information by judges, lawyers and researchers;
l the playing field in an adversarial system between litigants is more leveled as there is more or less equal access to information. We all know the barren nature of libraries owned by small law firms. The size of the firm is usually directly proportional to the size of the library;
l improve lobby for legislation;
l improve the quality and effectiveness of regional courts;
l ultimately, the benefit of an open, transparent and credible justice system does wonders for foreign direct investment, cross border practices, etc;
However, there are numerous obstacles to publishing court decisions on the Internet.
Some of these are;
Funding-the governments always accept the responsibility to fund and support the publication of statutes but appear hugely reluctant to plough funds into the publication of judgments. This is a state responsibility that is shunned. The state of law reporting in the 15 countries I have referred to bears overwhelming testimony. As a result, donor-funding supported the launch and continued existence of SAFLII. The excellent state of Kenyalaw[10] bears testimony to the good that can come out if the state assumes its responsibilities.
Access to legacy material-in many of the countries covered, judgments from the previous years are not stored in any formal electronic database or central archive. The collection work therefore necessarily involves ploughing through dusty and chaotic libraries with limited means to assist. Scanners have been employed to transform hard-copy material into electronic records that are published on the Internet. Some of the judgments were typed on flimsy paper which is difficult to scan.
We have however began to ask ourself questions. How far back should we go in collecting judgments of yester year? This is the debate about quality and quantity. Setlogelo v Setlogelo may be the locus classicus for interdicts, but do we not have cases that are recent that deal with the legal requirements in similar terms if not better? As we speak, the British have developed rules that actually limit the number of cases you can refer to in your heads of argument. The Internet provides so much that you could by a click of a button get all the summary judgment decisions of the SA high courts. But do we need to refer to all of them in our heads of argument?
Regrettably, in our part of the world, we are also archives of legal material and not simply law reporters.
Lack of Internet connectivity
I recall the debate I and Unity had with Deborah Baron the Director of the LRF. In her view, it was better to concentrate first on hard copies before the Internet since the clientele had no access to Internet. In the end we won her over on mainly the basis that the Internet was cheaper and could publish quicker than the press machine.
there is a region-wide lack of broadband
limited communications infrastructure
lack of funds for proprietary solutions and software. Some of you run pirated Microsoft software innocently. The cost of licences is prohibitive.
lack of local technology skills
Lack of Court IT infrastructure-courts in the Southern and Eastern African Region are generally poorly funded. They do not have computers, printers, servers, Internet equipment, email etc. Judges are generally thin on IT skills and display a not-so-keen inclination to learn. The libraries are poorly resourced. As a result, the judgment preparation is not lacks the necessary tools to make judgments suit the Internet requirements. SAFLII is currently working on judgment preparation modules which will make the preparation easier, easy to publish, standard compliant if not uniform, easily searchable and have advanced functionality for enhanced legal research across jurisdictions.
We have a dire situation in which the Judiciary is treated as a Department in the Ministry of Justice and not the Third Arm of the State. Financial independence of the courts is central to the independence of the Judiciary. For so long as the Judiciary cannot allocate its own resources independently it can never be free from Executive control.
Poor IT use in law schools, judicial colleges and by legal practitioners-there is a worryingly slow embracing of IT skills by law schools and lawyers. As a result, the use of the free legal resources is yet to spread across the entire profession. The lawyers in the state offices sit at the bottom of the list with virtually little access to the Internet and well resourced libraries. This disparity in resources continues to hamper the administration of justice. While lawyers in private practice may enjoy the unfair advantage, it is in the long run a self defeating circumstance. It is the lawyers who work for the state who will influence the quality of the legislation we get, the attitude of the state on human rights, the bargains you can negotiate the quality of the international treaties and so forth.
Differences in legal systems-the SAFLII project crosses the divide that legal systems provide. From the Roman-Dutch law influenced South Africa, Swaziland, Namibia, Botswana, Zimbabwe, Lesotho, to the more English law influenced systems like Tanzania, via the Civil law systems in Mozambique and Angola. Language barriers and approach to precedent is a challenge. Civil law is less precedent based.
OPEN JUSTICE AND PRIVACY
Decisions made in private and archived very far off from public scrutiny pose the greatest threat to the rights of citizens to access justice and full protection of the law. It is a well known cliché that justice must not only be done but be seen to be done. Judges who operate in secrecy create the greatest temptation to corruption. Open justice is enhanced by the opportunity for all and sundry to access and comment on judicial decisions.
One of the biggest challenges to online publication of judgments is open justice versus privacy. What details of the parties' or other concerned persons should be published? The line has never been clearly drawn both in statute and in the common law. The Internet by its nature offers a new and broader challenge. It is now possible to collate a person’s profile using details available by simple typing in their names through a search engine. This practice is commonly termed “googling” a person.
There is a serious concern that while the principle of open justice is one of the cornerstones of a transparent and accountable justice system, how open should the system be to a total stranger in a far off land employing the Web as a tool. Where does one strike the balance between the value of an open system in the public interest and the need to protect legitimate privacy rights? As the axiom goes, justice must not only be done, but seen to be done.
THE ZIMBABWE CONSTITUTION
The Constitution of Zimbabwe provides in s 18 (10) and s 18 (11) that trials shall be held in public. The court is given the power to exclude the public where it is permitted by a law;
l where necessary or expedient in circumstances would prejudice the interests of justice, or in interlocutory proceedings, or in the interest of public morality, the welfare of persons under the age of 21[11] or the protection of private lives of persons concerned in the proceedings;
l or by law be empowered or required so to do in the interests of defence, public safety, public order or the economic interests of the state.
The Statutes
Both the High Court and the Supreme Court Acts in identical terms provide that;
“Except as otherwise provided in the rules of court or in any other law, all proceedings in the Supreme Court shall be carried on in open court and the pleadings and proceedings thereof shall be in the English Language.” s31 Supreme Court Act, [Chapter 7:13]; (see also s49, High Court Act [Chapter 7:06])
Clearly, open justice is a principle well established in our law. The history of open justice is long. I do not wish to transport you in these days of fuel shortages that far back. Let me restrict me to a few sources.
The United States Bill of Rights, Article 14 of the International Covenant on Civil and political Rights and Article 6 of the European Convention of Human Rights recognise this right as a right to “a fair and public hearing by an independent and impartial tribunal established by law”
Jeremy Bentham, put it thus;
“In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spirit to exertion and the surest of all guards against improbity. It keeps the judge, while trying, under trial.”
Bowling (ed) Works of Jeremy Bentham (1843) vol 4 at 316-317.
This passage was cited with approval nearly a hundred years ago in Scott v Scott, 1913 AC 417. This English case involved a woman who had successfully sued for the annulment of her marriage on the grounds of her husband's impotence. She had obtained transcripts of the hearing and circulated them to his father, his sister and a third party. Thereafter the husband sought an order holding her to be in contempt of court on the grounds that she had published information that had been disclosed in a closed hearing. As you can imagine, this annulment proceedings raised inherently private matters at a time when sensitive problems like male impotence were not discussed widely. I do not hazard to opine that much has changed in much of this country.
The House of Lords, quickly rejected the suggestion that litigants should be spared the humiliation, pain or embarrassment of having private matters publicly discussed. Lord Shaw called open justice, “a sound and very sacred part of the constitution of the country and the administration of justice”.
In his paper, “The Principle of Open Justice: A comparative Perspective”, Justice Spigelman AC, Chief Justice of New South Wales, stated;
“The fundamental rule is that judicial proceedings must be conducted in an open court to which the public and the press have access. A court cannot agree to sit in camera, even that is by the consent of the parties. The exceptions to the fundamental rule are few and more strictly defined.”[12]
Many rules of procedure have arisen from this requirement of open and public justice. I will focus on one that has brought the conflict between open justice and privacy. It is the principle that judicial accountability requires that the judge publishes reasons for the decision. The rule requires publication not only to the parties but to the public.
“The importance of ensuring that justice be done openly has not only survived: it has now become ‘one of the hallmarks of a democratic society’ . . . . The open court principle, seen as ‘the very soul of justice’ and the ‘security of securities’, acts as a guarantee that justice is administered in a non-arbitrary manner, according to the rule of law.”[13]
"Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticise, applaud or castigate the conduct of their courts and, ultimately such free and frank debate about judicial proceedings serve more than one vital public purpose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the more important aspirational attributes prescribed for the judiciary by the Constitution.” [14]
The Court went further, relying on the decision of the US Supreme Court in Richmond Newspapers Inc v Virginia 448 US 555 (1980) at 570–2:
“Ideally, also, robust and informed public debate about judicial affairs promotes peace and stability by convincing those who have been wronged that the legal process is preferable to vengeance; by assuring the meek and humble that might is not right; by satisfying business people that commercial undertakings can be efficiently enforced; and, ultimately, as far as they all are concerned, that there exists a set of just norms and a trustworthy mechanism for their enforcement. In a memorable passage in Richmond Newspapers Inc v Virginia, Burger CJ characterised these objectives thus:
“The early history of open trials in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value.
. . .
When a shocking crime occurs, a community reaction of outrage and public protest often follows. . . . Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. . . .
To work effectively, it is important that society's criminal process ''satisfy the appearance of justice'' . . . and the appearance of justice can best be provided by allowing people to observe it.'”
The Canadian view
"It is also worth noting that there is an important educational aspect to an open court process. It provides an opportunity for the members of the community to acquire an understanding of how the courts work and how what goes on there affects them."[15]
The US Supreme Court:
“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case:
‘The educative effect of public attendance is a material advantage. Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy.’[16]
Where is the line drawn?
Van der Westhuizen J (as he then was)
“It is a well-known principle in our law and public life that, proceedings before this court should take place in public. This principle is also recognised and guaranteed in s 34 of the Constitution of the Republic of South Africa Act 108 of 1996. Section C 16 of the Supreme Court Act 59 of 1959 states that a court has the discretion to order the hearing of cases in camera in special cases...The principle and the ideal of a public hearing should not lightly be departed from. The Prinsloos' case is by no means special, as argued by counsel for the applicant. Intimate personal details are often disclosed out in courtrooms in front of members of the public and the media. This is unfortunate for the individuals involved, but their privacy is in such cases outweighed by values such that courts in a E democratic country function with transparency, so that any member of the public can see that justice is being done. It is not uncommon for a nervous, embarrassed and emotionally fragile plaintiff in a divorce court to have to explain under oath in a courtroom filled with a large number of onlookers, how a spouse committed adultery or how alcoholism, F drug abuse, family violence, or even incest wrecked a marriage, and for the victims of violent crime to have to explain in front of the public and the media how the death, rape or mutilation of oneself or a loved one, such as a child, was experienced and how it may have ruined people's lives. In this case aspects of the private lives of the G Prinsloos - and of course the previous litigation - have already been the topic of sensational reporting for a considerable time.” [17]
Statute
The Criminal Procedure and Evidence Act[18] deals with the dilemma in a criminal trial as follows;
It prohibits
l the publication by radio or television or in any document produced by printing or by any other method of multiplication, the name, address, school or place of occupation or other information likely to reveal the identity of any person under the age of 18 who is being or has bee tried in any court on a charge of having committed any offence; Provided, the judge or magistrate may during trial or the Minister after the trial permit in the circumstances of the case where it is just and equitable and in the public interest or in the interests of a particular person;
l the publication of identities of complainants or witnesses in sexual offences; victims of extortion or similar offences;
l publication of identities of juvenile witnesses
The Maintenance Act and the Children's Act also give the judicial officer power to hold a closed hearing, and by extension can protect the publication of certain information arising from such hearings.
To some extent, the current provisions of the law go some way in clarifying exceptions to open and public hearings.
The Peculiar Internet Challenge
The problem that SAFLII faces is that not all the countries it covers have similar legislation. Secondly, the problems in the Internet age go beyond the current statutory directives.
Commendably, the Canadian Judicial Council[19] has produced a Recommended Protocol for the Use of Personal Information in Judgments. The Protocol notes four objectives to be taken into account in determining what information should be included or omitted from reasons for judgments:
l ensuring full compliance with the law;
l fostering an open and accountable judicial system;
l protecting the privacy of justice system participants where appropriate; and
l maintaining the readability of reasons for judgment.
It also deals with what it terms three levels of protection;
“Personal data identifiers: omitting personal data identifiers which by their very nature are fundamental to an individual's right to privacy;
Legal Prohibitions on Publication: omitting information which, if published, could disclose the identity of certain participants in the judicial proceeding in violation of a statutory or common law restriction on publication; and;
Discretionary Protection of Privacy Rights: omitting other personal information to prevent the identification of parties where the circumstances are such that the dissemination of this information over Internet could harm innocent persons or subvert the course of justice.”
These broad guidelines also go into some detail in the protocol about what they constitute. We operate in a wide terrain with different cultures and social sensitivities. The major challenge is that some of the countries do not even have laws that deal with privacy matters in judgments. In many cases, the judges clearly lack training in identifying what may constitute unpublishable private information. Cases involving persons who are HIV positive have caused some controversy, with one judge in Botswana taking the initiative to anonymise the parties while others would have done otherwise due to the absence of common or statutory prohibitions. The debate about the privacy issues relating to the disclosure of the HIV status of persons in a book was a subject of litigation in SA recently. The Constitutional Court of South Africa still had dissenting opinions on the matter. The decision indicates that there is no universality or uniformity on what constitutes unpublishable private information, even in judgments.
Legal practitioners have an important role to play in the protection of privacy. As the lawyers representing the parties, or involved in the trials, it is your duty to ensure that judges remain aware of the privacy issues involved. It is the lawyers again who must ensure that any agreed standards are being enforced.
Due to the disparity in legal enforcement of privacy issues, SAFLII at present takes decisions to exclude certain private information considered unsuitable for publication. Yet SAFLII is not the be all and end all. The ultimate goal is to influence courts to enforce uniform privacy policies in their judgments through the use of Protocols like the Canadian one referred to above. Parliaments will also need to pass laws that effectively deal with these issues.
Many LII sites already exclude search engines from indexing their sites. This is not a permanent solution. For in a way this limits free access to law.
CONCLUSION
In this paper, I have just attempted to show how free online access to judgments can enhance your legal practice, the rule of law, democracy, legal research[20] etc. It is not an endeavour without pitfalls. It is not an endeavour that can survive on its own. It deserves the support of all practitioners and judges and our governments.
In our country today, it is hard to find heroes in public life. I was surprised to stumble upon one from over a hundred years ago. The esteemed warrior Gwaimani. Arrested during the 1895-97 first Chimurenga War for killing a whiteman and his Zulu servants near Gweru. He was brought to trial and admitted everything without any remorse. On being told that he would be hanged by the neck as punishment, Gwaimani loudly informed the authorities that “No white man would hang Gwaimani” He repeated this mantra many times after conviction while in custody awaiting execution. The authorities were shocked to find one morning Gwaimani dead in his cell. He had taken some poisonous herbs brought by one of his visitors. He just could not allow a white man to hang him. Gwaimani was a man of principle. In a small town in this country, a man was brought before the town magistrate to answer charges of assault GBH. The magistrate who recognised the man enquired why he had savagely clobbered a fellow citizen, to which he replied; “Your worship, the man said I had the ugliest wife he had ever seen!” The magistrate shocked retorted, “But you have no wife Mr. Ngulube!” “Yes your Worship I have no wife. I was just fighting the principle of the thing!” Like Gwaimani and Ngulube, if you have not had much illumination from my presentation on open access to law, just fight for the principle of the thing!
Mr Chairman allow me to express to this congress of lawyers my heartfelt condolences for the loss of one of the bravest cadres on the front. Lawrence was a vivacious and colourful character. I had known him since 1995 when he entered law school. He would not escape notice as he was one of the noisiest students in the mini amphi-theatre outside the law library, so fondly called the quorum. I looked forward to meeting Lawrence and collecting the 5 Bohlingers he promised me for asking Justice Kriegler to speak at this Summer School. In our loss, we have gained a great advocate for our cause in another world. We would not ask for a better advocate than Lawrence. As I imagine his place in the other world, I cannot help but remember what Winston Churchill said on his 75th Birthday;
“I am ready to meet my Maker. Whether he is prepared for the ordeal of meeting me is another matter.”
Zorora murugare munun'una. Zvapasi zvinonyenga. Kudenga tozofara!
TR Mafukidze
Mafukidze@concourt.org.za
[1] Per Saville LJ, Bannister v SGB plc and Ors and 19 other appeals [1997] EWCA Civ 1524 (25th April, 1997)
[2] See www.bailii.org
[3] 8th International Conference on Law via Internet, Montreal, Canada, 23-26 October 2007
[4] See generally, Susan W. Brenner, Precedent Inflation, Transaction Publishers, 1992
[5] See Practice Direction 2 of 1981
[6] The Legal Resources Foundation is working hard to ensure that the backlog in cleared.
[7] 2002 circular from the then Law Society of Zimbabwe Secretary, Mr. W Mapombere
[8] www.sajc.org.za, website will be accessible soon.
[9] See www.saflii.org
[10] I urge you to visit www.kenyalaw.org
[11] I have been unable to verify this queer age restriction.
[12] See, www.lawlink.nsw.gov.au/
[13] Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1996] 3 S.C.R. 480 at para 22
[14] S v Mamabolo 2001 (3) SA 409 (CC)
[15] Edmonton Journal v Attorney General for Alberta, Attorney General of Canada and Attorney General of Ontario [1989] 2 SCR 1326, 64 DLR (4th) 577 at para 21.
[16] Richmond Newspapers Inc v Virginia 448 US 555 (1980) at 572
[17] Prinsloo v RCP Media Ltd t/a Rapport, 2003 (4) SA 456 (T) at 462
[18] Criminal Procedure and Evidence Act [Chapter ]
[19] Canadian Judicial Council, Judges’ Technology Advisory Committee, “Use of Personal Information in Judgments and Recommended Protocol”. Approved by the Canadian Judicial Council, March 2005.
[20] See paper by TR Mafukidze,”The Promotion of the Rule of Law in Africa: Open standards and ICTs to support open access to the court system” presented at the International Conference on African Legal Resources: Challenges and Opportunities of Legislative Informatics, March 2007,Abuja, Nigeria
Judges Must Deserve Respect
EVERYONE WANTS TO REPECT JUDGES…THEY MUST DESERVE IT!
The Late Chief Justice of South Africa, Justice Ismail Mahomed had this to say in his address to the International Commission of Jurists in Cape Town on the 21st July 1998 on “Independence of the Judiciary”:
“The independence of the judiciary and the legitimacy of its claim to credibility and esteem must in the last instance rest on the integrity and the judicial temper of Judges, the intellectual and emotional equipment they bring to bear upon the process of adjudication, the personal qualities of character they project, and the parameters they seek to identify on the exercise of judicial power.”
The Judge President of the High Court of Zimbabwe, Madam Justice Rita Makarau, while opening the 2009 High Court Year in Harare complained among other things that:
There was a lack of respect for the Judiciary by lawyers
Judges and Lawyers were allowing themselves to be affected by the political divisions in the country in their work
Lawyers brought election petitions without any basis
Lawyers criticized judges in foreign media
The Judiciary had tired of turning the other cheek
The Deputy Chief Justice Mr. Justice Luke Malaba was on the other hand busy in Bulawayo delivering his own address to open the legal year in Bulawayo. Justice Malaba’s in his speech acknowledged that the Bulawayo High Court had struggled with its court roll and indicated that there could have been better performance. He noted that the delay in the delivery of justice would in itself harm the reputation of the Judiciary in the eyes of the public. He expressly noted that some judges were busy doing their personal business during work times and this compounded the already congested court backlog.
As a parting shot, the Learned Deputy Chief Justice expressed his views about the SADC Tribunal decision in the Campbell matter and came to the conclusion that the Tribunal should not have heard the matter as they had not exhausted domestic remedies
In both instances, the Learned Judges have raised major issues. Both speeches raise important issues regarding legal professional ethics, judicial ethics, independence of the legal profession and independence of the judiciary itself. These issues are so interrelated that there will be no significant progress in the delivery of justice in Zimbabwe unless each of these issues has been satisfactorily and honestly resolved. Legal ethics do not take root outside an independent legal profession and neither do judicial ethics find life where judicial independence is long a distant memory.
Respect for Judges: Lawyers have a duty to be courteous at all times and this duty includes Judges and the Court
It is an ethical requirement that lawyers show respect to the Judiciary. In fact the duty is a lot wider and is set out as follows by Lewis in his seminal work on Legal Ethics, states:
“Personalities are infinitely various and not every practitioner is of so even-tempered a nature as to find it easy to be courteous in all his dealings. The legal profession undoubtedly imposes strains both mental and nervous upon those who practise it and it is exceptionally easy to allow these strains to reveal themselves in one or other expression of feeling which involves discourtesy.
The rule is this-however hard the disputation, however tough and unyielding the negotiation, however untruthful the witness, however discourteous, rude, even insolent the opposite number to an exchange, however neglectful, or stupid the subordinate, there is no room for anything but punctilious courtesy on the part of the practitioner.”
The IBA General Principles for the Legal Profession adopted on 20 September, 2006 state in Article 2:
“A lawyer shall at all times maintain the highest standards of honesty, integrity and fairness towards the Court, his or her colleagues and all those with whom he or she comes professionally into contact.”
Any failure to show due respect especially in the course of the matter may in fact result in the lawyer being charged with contempt of court. Judges have inherent power prescribed by law to discipline lawyers in this regard. The example given by the Learned Judge President of a young lawyer failing to give way to a judge in the corridor in fact lightened the matter. The failure to give way may result in fact from simple poor manners of individual lawyers rather than their contempt for judicial office. But a Judge who suffers this from a lawyer must be in a position to assert his or her authority immediately. The judgment delivered by Justice Gillespie in the matter Felicity Mashinya v Scanlen and Holderness in the late 90s regarding the tone of a letter written by Mashinya’s lawyer provides ample authority.
It is not a power that is resorted to by an unduly sensitive judicial officer or by one seeking to hide behind the judicial cloak to silence dissent or legitimate criticism. The temptation to use contempt of court proceedings to silence dissent is both unlawful and unconstitutional.
Is the Respect a blank cheque?
The lawyer is ethically bound to show deference to Authority without abandoning his duty. As Lewis at page 14-15 puts it:
“The duty upon the practitioner is to demean himself with propriety before authority, but courageously to maintain his independence and to uphold the rights of his clients.”
Lewis further expands on this duty and states at page 214 that:
“Although proper respect for the court or other tribunal must always be preserved, it is not required of a practitioner to be in any way subservient or servile. It is not incompatible with the respect of the Bench for the attorney to uphold the dignity of the profession and to insist upon his rights and upon those of his client.”
In the old matter In re: Mackenzie an attorney appeared May, 1849 before Mr. Justice Menzies, who had a reputation for discourtesy towards counsel. It is reported that the attorney, Mr. Kift exasperated by his treatment by the Learned Judge addressed the court as follows:
“My Lord, no man is more anxious to pay all possible respect to the Court than I am; no man is more anxious to give the Court every possible satisfaction than I am; but, my Lord, in my endeavours to do my duty, I submit that I am entitled to be treated by your Lordship with common courtesy-and, my Lord, if I am to be worried by your Lordship’s discourteous treatment, I shall be unable to give the Court that satisfaction which I am anxious to give.”
The Judiciary owes its respect from the fact that it performs a certain function in our constitutional democracy-the adjudication of disputes without fear or favour. The function is performed without armies to enforce the decisions of courts. Their esteemed position in society encourages the general public to obey judicial decisions. It is for this reason that veritable titles have been invented for judges and magistrates. They occupy a respectable position in our society. With this respect comes an obligation which is that judges must be beyond reproach-in both their professional and individual conduct.
Lubet, in his article “Judicial Ethics and Private Lives” (1984-85), 79 NW University Law Rev, 983, observed:
“In a democracy, the enforcement of judicial decrees and orders (of courts) depends upon the public cooperation. The level of cooperation, in turn, depends upon a widely held perception that judges decide cases impartially. Should the citizenry conclude, even erroneously, that cases were decided on the basis of favoritism or prejudice rather than according to law and fact then regiments would be necessary to enforce judgments.”
In Deuteronomy 16:18-20, the Almighty said-
“You shall appoint judges and officials throughout your tribes to administer justice for the people. You shall not distort justice. You must be impartial. You shall not take a bribe; for a bribe blinds the eyes of the wise and twists the words even of the just.
Justice, and justice alone, shall be your aim, that you may have life and possess the land which the Lord Your God is giving you”.
In the Holy Scriptures land is the reward for doing Justice!
Judges derive their respect and high esteem from their perception as independent, impartial officers with integrity. That has always been their source of power from times immemorial.
The Learned Deputy Chief Justice in his address in Bulawayo put his finger on the pulse when he noted:
“There is also no doubt that pursuit of personal business by a Judge during the time he or she is expected to be performing judicial work cause disrespect for the judicial work, cause disrespect for the judicial officer in the minds of legal practitioners and litigants who have to take other people’s days in court by having their cases postponed…A poorly run judicial system will in time undermine public confidence in the entire system of government.”
But What Constitutes this Independence of the Judiciary?
Hon. Bernard L. Shientag in his Benjamin N. Cardozo Memorial Lectures, said:
“There can be no government of law without a fearless, independent judiciary. The independence of the judge is the chief of all the cardinal judicial virtues. He must be entirely free from all external influence and subservient only to his own conscience.”
In the Indian Supreme Court decision in Union of India & Ors. Vs. Pratibha Bonnerjea & Anr. (1995) 6 SCC 765, Ahmadi, and C.J., observed:
“Independence and impartiality are the two basic attributes essential for a proper discharge of judicial functions. A Judge of a High Court is, therefore, required to discharge his duties consistently with the conscience of the Constitution and the laws and according to the dictates of his own conscience and he is not expected to take orders from anyone. Since a substantial volume of litigation involves government interest, he is required to decide matters involving government interest day in and day out. He has to decide such cases independently and impartially without in any manner being influenced by the fact that the Government is a litigant before him…He, therefore, belongs to the third organ of the State which is independent of the other two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the other two wings of the State. A Judge of the High Court, therefore, occupies a unique position under the Constitution. He would not be able to discharge his duty without fear or favour, affection or ill will, unless he is totally independent of the Executive, which he would not be if he is regarded as a government servant. He is clearly a holder of a constitutional office and is able to function independently and impartially because he is not a government servant and does not take orders from anyone.”
The converse is that when Judges cease to be perceived as independent and impartial, they lose respect of both practitioners and the general public. I do not think it needs a forensic or empirical study to determine where the Zimbabwean Judiciary sits in this regard. The Bangalore Principles of Judicial Independence state as follows regarding independence of a judge:
“Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects…
1.1 A judge shall exercise the judicial function independently on the basis of the judge's assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.”
The main reason why judges have lost respect is related to their perceived failure as a group to discharge their duties in an independent and impartial manner especially with regards to matters that involve politics and land. The Judge President herself in fact admitted that judges were being affected in their work by political matters. What she failed, regrettably to appreciate is the fact that:
Lawyers can belong to political parties and even hold political office
Lawyers are not required to be impartial. They do not decide matters.
Judges must be political eunuchs who do not participate in any political roles. As Lord Bingham put it: a judge should be a political eunuch!
Every day, lawyers holding political offices have appeared in our courts. But no judge should hold political office while serving as a judge. To equate the role of judges and lawyers in this instance is wrong in law.
The case of Law Society of the Transvaal v Mandela illustrates the point clearly: that the pursuit of political beliefs does not make a lawyer unfit to perform his duties as a lawyer. But such pursuit of political beliefs by a judge is unlawful and an abandonment of duty. Nelson Mandela had been convicted of furthering the ideas of communism and propagating the idea of removing the government of the Union of South Africa from office by unlawful means. Subsequently, his law society sought to have his name removed from the roll of attorneys because of this conviction. In a 1954 decision, the Appellate Division of South Africa dismissed the petition and found that:
“The sole question that the Court has to decide is whether the facts which have been put before us and on which the respondent was convicted show him to be of such character that he is not worthy to remain in the ranks of an honourable profession. To that question there can, in my opinion, be only one answer. Nothing has been put before us which suggests in the slightest degree that the respondent has been guilty of conduct of a dishonest, disgraceful, or dishonourable kind; nothing that he has done reflects upon his character or shows him to be unworthy to remain in the ranks of an honourable profession. In advocating the plan of action, the respondent was obviously motivated by a desire to serve his fellow non-Europeans. The intention was to bring about the repeal of certain laws which the respondent regarded as unjust. The method of producing that result which the respondent advocated is an unlawful one, and by advocating that method the respondent contravened the statute; for that offence he has been punished. But his offence was not of a “personally disgraceful character”, and there is nothing in his conduct which, in my judgment, renders him unfit to be an attorney.” [Per Ramsbottom J]
And yet, a judge who is swayed in his work by politics of the day commits serious misconduct that requires that he be banished immediately from the hallowed seat of justice.
Further, lawyers cannot be associated with the cause of their clients. That is a cardinal rule on the independence of the legal profession. It is set out in the IBA principles as follows in Article 7:
“The lawyer is not to be identified by the authorities or the public with the client or the client’s cause, however popular or unpopular it may be.”
So, a lawyer does not become an MDC lawyer by reason that he represents MDC and neither can he become a Zanu PF lawyer by reason that he acts for a member of Zanu PF.
Criticism of Judges
Judges are not gods. They are human beings appointed to serve in public office and are required to account for the enormous power which they exercise. This is called judicial accountability. As the Late Chief Justice Ismail Mahomed put it:
“Judicial power is potentially no more immune from vulnerability to abuse than legislative or executive power but the difference is this: the abuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse of judicial power. It is therefore crucial for all judges to remain vigilantly alive to the truth that the potentially awesome breath of judicial power is matched by the real depth of judicial responsibility. Judicial responsibility becomes all the more onerous upon judges constitutionally protected in a state of jurisprudential solitude where there is no constitutional referee to review their own wrongs.”
Lawyers are entitled like any other citizen to criticize the legal systems, the laws that are enacted, the decisions and conduct of judges etc. The ethical requirements are only that the criticism should be temperate and in good faith. The criticism can be done by an individual lawyer or as a group. It may be a general criticism or a specific relating to a particular matter. With the right to criticize comes the converse obligation on lawyers to defend the administration of justice should it come under undue attack. The defence does is only to the extent that it is necessary to ensure that the administration of justice does not come into disrepute. It is not by any means required to be a defence of a particular judge’s reasoning process or conclusion. In order to forestall the uneducated criticism of court decisions, some courts now publish media summaries with the delivery of important judgments so as to provide some lay-guide on what the case was about; the law applied and the outcome. These have reduced the level of poor reporting which usually sparks wrongful criticism.
Justice Makarau complained that about criticism by certain lawyers that there was no rule of law in Zimbabwe. This criticism she said is made in the foreign press. The Learned Judge President appears to imply that the criticism is wrong because:
The use of foreign press undesirable
The lawyers who complain in the foreign press actually get most of their orders from the courts they complain about.
On the first ground, the Learned Judge President does not raise any basis for limiting freedom of expression to the local press, unless she started off on the common premise within certain circles that the foreign press is an “enemy of the state”. This hopefully, did not influence her thinking as her court was approached several times to determine the rights of foreign journalists being deported illegally.
Secondly, the Judge President would be able to take judicial notice of the absence of independent daily press in the country. There is no alternative electronic media. The Daily News case judgment of the Supreme Court displays the role played by the Judiciary in consolidating this position.
Thirdly, in the fast globalizing world we live in, the strict demarcation of borders in the flow of news and opinions is non-existent. The judges who received satellite dishes from the Reserve Bank would surely appreciate how much they can at the press of a soft button invite the BBC, Sky News, Al Jazeera, CNN, Euronews and many others into the comfort of their homes, farms or chambers.
The second part of the Judge President’s criticism lacks empirical or statistical analysis of what she said making it difficult for one to agree with her. I wonder whether the statement she made answers the criticism by lawyers that:
Orders are not being granted in “sensitive matters” (land and political cases);
When orders are granted, they are not obeyed and contempt of court proceedings have never achieved anything.
The Role of Criticism
It is right to recall what Lord Denning MR said 23 when the then Mr. Quintin Hogg QC MP launched a broadside in the press against a judgment of the Court of Appeal:
"It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.
Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right". “
The writer will not debate the decision with the Deputy Chief Justice about the SADC Tribunal decision but it is salutary to note that there is a standing convention that judges do not criticize decisions of Appellate courts especially in matters the judge sat in. That old wisdom is not invaluable. Judges of the High Court may have serious views about decisions of the Supreme Court, but we do not want to see the day they will criticize the higher court for overturning them. It has long been accepted that final courts are infallible. They are infallible because they are final. If there was a higher court than the Supreme Court, many of its decisions would have been reversed too.
It is unhelpful that the Deputy Chief Justice gave his views attacking a decision that the Government of Zimbabwe has already indicated its desire to ignore. The attack regrettable gives fuel to a decision to undermine the rule of law.
Conclusion
Lord Bolingbroke put it no better than most when he said of the legal profession:
“The practice of law, in its nature the noblest and most beneficial to mankind, in its abuse an abasement of the most sordid kind.”
It is our hope that the Bench and the Bar will find the ethical compass required to deliver justice to all.
The Late Chief Justice of South Africa, Justice Ismail Mahomed had this to say in his address to the International Commission of Jurists in Cape Town on the 21st July 1998 on “Independence of the Judiciary”:
“The independence of the judiciary and the legitimacy of its claim to credibility and esteem must in the last instance rest on the integrity and the judicial temper of Judges, the intellectual and emotional equipment they bring to bear upon the process of adjudication, the personal qualities of character they project, and the parameters they seek to identify on the exercise of judicial power.”
The Judge President of the High Court of Zimbabwe, Madam Justice Rita Makarau, while opening the 2009 High Court Year in Harare complained among other things that:
There was a lack of respect for the Judiciary by lawyers
Judges and Lawyers were allowing themselves to be affected by the political divisions in the country in their work
Lawyers brought election petitions without any basis
Lawyers criticized judges in foreign media
The Judiciary had tired of turning the other cheek
The Deputy Chief Justice Mr. Justice Luke Malaba was on the other hand busy in Bulawayo delivering his own address to open the legal year in Bulawayo. Justice Malaba’s in his speech acknowledged that the Bulawayo High Court had struggled with its court roll and indicated that there could have been better performance. He noted that the delay in the delivery of justice would in itself harm the reputation of the Judiciary in the eyes of the public. He expressly noted that some judges were busy doing their personal business during work times and this compounded the already congested court backlog.
As a parting shot, the Learned Deputy Chief Justice expressed his views about the SADC Tribunal decision in the Campbell matter and came to the conclusion that the Tribunal should not have heard the matter as they had not exhausted domestic remedies
In both instances, the Learned Judges have raised major issues. Both speeches raise important issues regarding legal professional ethics, judicial ethics, independence of the legal profession and independence of the judiciary itself. These issues are so interrelated that there will be no significant progress in the delivery of justice in Zimbabwe unless each of these issues has been satisfactorily and honestly resolved. Legal ethics do not take root outside an independent legal profession and neither do judicial ethics find life where judicial independence is long a distant memory.
Respect for Judges: Lawyers have a duty to be courteous at all times and this duty includes Judges and the Court
It is an ethical requirement that lawyers show respect to the Judiciary. In fact the duty is a lot wider and is set out as follows by Lewis in his seminal work on Legal Ethics, states:
“Personalities are infinitely various and not every practitioner is of so even-tempered a nature as to find it easy to be courteous in all his dealings. The legal profession undoubtedly imposes strains both mental and nervous upon those who practise it and it is exceptionally easy to allow these strains to reveal themselves in one or other expression of feeling which involves discourtesy.
The rule is this-however hard the disputation, however tough and unyielding the negotiation, however untruthful the witness, however discourteous, rude, even insolent the opposite number to an exchange, however neglectful, or stupid the subordinate, there is no room for anything but punctilious courtesy on the part of the practitioner.”
The IBA General Principles for the Legal Profession adopted on 20 September, 2006 state in Article 2:
“A lawyer shall at all times maintain the highest standards of honesty, integrity and fairness towards the Court, his or her colleagues and all those with whom he or she comes professionally into contact.”
Any failure to show due respect especially in the course of the matter may in fact result in the lawyer being charged with contempt of court. Judges have inherent power prescribed by law to discipline lawyers in this regard. The example given by the Learned Judge President of a young lawyer failing to give way to a judge in the corridor in fact lightened the matter. The failure to give way may result in fact from simple poor manners of individual lawyers rather than their contempt for judicial office. But a Judge who suffers this from a lawyer must be in a position to assert his or her authority immediately. The judgment delivered by Justice Gillespie in the matter Felicity Mashinya v Scanlen and Holderness in the late 90s regarding the tone of a letter written by Mashinya’s lawyer provides ample authority.
It is not a power that is resorted to by an unduly sensitive judicial officer or by one seeking to hide behind the judicial cloak to silence dissent or legitimate criticism. The temptation to use contempt of court proceedings to silence dissent is both unlawful and unconstitutional.
Is the Respect a blank cheque?
The lawyer is ethically bound to show deference to Authority without abandoning his duty. As Lewis at page 14-15 puts it:
“The duty upon the practitioner is to demean himself with propriety before authority, but courageously to maintain his independence and to uphold the rights of his clients.”
Lewis further expands on this duty and states at page 214 that:
“Although proper respect for the court or other tribunal must always be preserved, it is not required of a practitioner to be in any way subservient or servile. It is not incompatible with the respect of the Bench for the attorney to uphold the dignity of the profession and to insist upon his rights and upon those of his client.”
In the old matter In re: Mackenzie an attorney appeared May, 1849 before Mr. Justice Menzies, who had a reputation for discourtesy towards counsel. It is reported that the attorney, Mr. Kift exasperated by his treatment by the Learned Judge addressed the court as follows:
“My Lord, no man is more anxious to pay all possible respect to the Court than I am; no man is more anxious to give the Court every possible satisfaction than I am; but, my Lord, in my endeavours to do my duty, I submit that I am entitled to be treated by your Lordship with common courtesy-and, my Lord, if I am to be worried by your Lordship’s discourteous treatment, I shall be unable to give the Court that satisfaction which I am anxious to give.”
The Judiciary owes its respect from the fact that it performs a certain function in our constitutional democracy-the adjudication of disputes without fear or favour. The function is performed without armies to enforce the decisions of courts. Their esteemed position in society encourages the general public to obey judicial decisions. It is for this reason that veritable titles have been invented for judges and magistrates. They occupy a respectable position in our society. With this respect comes an obligation which is that judges must be beyond reproach-in both their professional and individual conduct.
Lubet, in his article “Judicial Ethics and Private Lives” (1984-85), 79 NW University Law Rev, 983, observed:
“In a democracy, the enforcement of judicial decrees and orders (of courts) depends upon the public cooperation. The level of cooperation, in turn, depends upon a widely held perception that judges decide cases impartially. Should the citizenry conclude, even erroneously, that cases were decided on the basis of favoritism or prejudice rather than according to law and fact then regiments would be necessary to enforce judgments.”
In Deuteronomy 16:18-20, the Almighty said-
“You shall appoint judges and officials throughout your tribes to administer justice for the people. You shall not distort justice. You must be impartial. You shall not take a bribe; for a bribe blinds the eyes of the wise and twists the words even of the just.
Justice, and justice alone, shall be your aim, that you may have life and possess the land which the Lord Your God is giving you”.
In the Holy Scriptures land is the reward for doing Justice!
Judges derive their respect and high esteem from their perception as independent, impartial officers with integrity. That has always been their source of power from times immemorial.
The Learned Deputy Chief Justice in his address in Bulawayo put his finger on the pulse when he noted:
“There is also no doubt that pursuit of personal business by a Judge during the time he or she is expected to be performing judicial work cause disrespect for the judicial work, cause disrespect for the judicial officer in the minds of legal practitioners and litigants who have to take other people’s days in court by having their cases postponed…A poorly run judicial system will in time undermine public confidence in the entire system of government.”
But What Constitutes this Independence of the Judiciary?
Hon. Bernard L. Shientag in his Benjamin N. Cardozo Memorial Lectures, said:
“There can be no government of law without a fearless, independent judiciary. The independence of the judge is the chief of all the cardinal judicial virtues. He must be entirely free from all external influence and subservient only to his own conscience.”
In the Indian Supreme Court decision in Union of India & Ors. Vs. Pratibha Bonnerjea & Anr. (1995) 6 SCC 765, Ahmadi, and C.J., observed:
“Independence and impartiality are the two basic attributes essential for a proper discharge of judicial functions. A Judge of a High Court is, therefore, required to discharge his duties consistently with the conscience of the Constitution and the laws and according to the dictates of his own conscience and he is not expected to take orders from anyone. Since a substantial volume of litigation involves government interest, he is required to decide matters involving government interest day in and day out. He has to decide such cases independently and impartially without in any manner being influenced by the fact that the Government is a litigant before him…He, therefore, belongs to the third organ of the State which is independent of the other two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the other two wings of the State. A Judge of the High Court, therefore, occupies a unique position under the Constitution. He would not be able to discharge his duty without fear or favour, affection or ill will, unless he is totally independent of the Executive, which he would not be if he is regarded as a government servant. He is clearly a holder of a constitutional office and is able to function independently and impartially because he is not a government servant and does not take orders from anyone.”
The converse is that when Judges cease to be perceived as independent and impartial, they lose respect of both practitioners and the general public. I do not think it needs a forensic or empirical study to determine where the Zimbabwean Judiciary sits in this regard. The Bangalore Principles of Judicial Independence state as follows regarding independence of a judge:
“Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects…
1.1 A judge shall exercise the judicial function independently on the basis of the judge's assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.”
The main reason why judges have lost respect is related to their perceived failure as a group to discharge their duties in an independent and impartial manner especially with regards to matters that involve politics and land. The Judge President herself in fact admitted that judges were being affected in their work by political matters. What she failed, regrettably to appreciate is the fact that:
Lawyers can belong to political parties and even hold political office
Lawyers are not required to be impartial. They do not decide matters.
Judges must be political eunuchs who do not participate in any political roles. As Lord Bingham put it: a judge should be a political eunuch!
Every day, lawyers holding political offices have appeared in our courts. But no judge should hold political office while serving as a judge. To equate the role of judges and lawyers in this instance is wrong in law.
The case of Law Society of the Transvaal v Mandela illustrates the point clearly: that the pursuit of political beliefs does not make a lawyer unfit to perform his duties as a lawyer. But such pursuit of political beliefs by a judge is unlawful and an abandonment of duty. Nelson Mandela had been convicted of furthering the ideas of communism and propagating the idea of removing the government of the Union of South Africa from office by unlawful means. Subsequently, his law society sought to have his name removed from the roll of attorneys because of this conviction. In a 1954 decision, the Appellate Division of South Africa dismissed the petition and found that:
“The sole question that the Court has to decide is whether the facts which have been put before us and on which the respondent was convicted show him to be of such character that he is not worthy to remain in the ranks of an honourable profession. To that question there can, in my opinion, be only one answer. Nothing has been put before us which suggests in the slightest degree that the respondent has been guilty of conduct of a dishonest, disgraceful, or dishonourable kind; nothing that he has done reflects upon his character or shows him to be unworthy to remain in the ranks of an honourable profession. In advocating the plan of action, the respondent was obviously motivated by a desire to serve his fellow non-Europeans. The intention was to bring about the repeal of certain laws which the respondent regarded as unjust. The method of producing that result which the respondent advocated is an unlawful one, and by advocating that method the respondent contravened the statute; for that offence he has been punished. But his offence was not of a “personally disgraceful character”, and there is nothing in his conduct which, in my judgment, renders him unfit to be an attorney.” [Per Ramsbottom J]
And yet, a judge who is swayed in his work by politics of the day commits serious misconduct that requires that he be banished immediately from the hallowed seat of justice.
Further, lawyers cannot be associated with the cause of their clients. That is a cardinal rule on the independence of the legal profession. It is set out in the IBA principles as follows in Article 7:
“The lawyer is not to be identified by the authorities or the public with the client or the client’s cause, however popular or unpopular it may be.”
So, a lawyer does not become an MDC lawyer by reason that he represents MDC and neither can he become a Zanu PF lawyer by reason that he acts for a member of Zanu PF.
Criticism of Judges
Judges are not gods. They are human beings appointed to serve in public office and are required to account for the enormous power which they exercise. This is called judicial accountability. As the Late Chief Justice Ismail Mahomed put it:
“Judicial power is potentially no more immune from vulnerability to abuse than legislative or executive power but the difference is this: the abuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse of judicial power. It is therefore crucial for all judges to remain vigilantly alive to the truth that the potentially awesome breath of judicial power is matched by the real depth of judicial responsibility. Judicial responsibility becomes all the more onerous upon judges constitutionally protected in a state of jurisprudential solitude where there is no constitutional referee to review their own wrongs.”
Lawyers are entitled like any other citizen to criticize the legal systems, the laws that are enacted, the decisions and conduct of judges etc. The ethical requirements are only that the criticism should be temperate and in good faith. The criticism can be done by an individual lawyer or as a group. It may be a general criticism or a specific relating to a particular matter. With the right to criticize comes the converse obligation on lawyers to defend the administration of justice should it come under undue attack. The defence does is only to the extent that it is necessary to ensure that the administration of justice does not come into disrepute. It is not by any means required to be a defence of a particular judge’s reasoning process or conclusion. In order to forestall the uneducated criticism of court decisions, some courts now publish media summaries with the delivery of important judgments so as to provide some lay-guide on what the case was about; the law applied and the outcome. These have reduced the level of poor reporting which usually sparks wrongful criticism.
Justice Makarau complained that about criticism by certain lawyers that there was no rule of law in Zimbabwe. This criticism she said is made in the foreign press. The Learned Judge President appears to imply that the criticism is wrong because:
The use of foreign press undesirable
The lawyers who complain in the foreign press actually get most of their orders from the courts they complain about.
On the first ground, the Learned Judge President does not raise any basis for limiting freedom of expression to the local press, unless she started off on the common premise within certain circles that the foreign press is an “enemy of the state”. This hopefully, did not influence her thinking as her court was approached several times to determine the rights of foreign journalists being deported illegally.
Secondly, the Judge President would be able to take judicial notice of the absence of independent daily press in the country. There is no alternative electronic media. The Daily News case judgment of the Supreme Court displays the role played by the Judiciary in consolidating this position.
Thirdly, in the fast globalizing world we live in, the strict demarcation of borders in the flow of news and opinions is non-existent. The judges who received satellite dishes from the Reserve Bank would surely appreciate how much they can at the press of a soft button invite the BBC, Sky News, Al Jazeera, CNN, Euronews and many others into the comfort of their homes, farms or chambers.
The second part of the Judge President’s criticism lacks empirical or statistical analysis of what she said making it difficult for one to agree with her. I wonder whether the statement she made answers the criticism by lawyers that:
Orders are not being granted in “sensitive matters” (land and political cases);
When orders are granted, they are not obeyed and contempt of court proceedings have never achieved anything.
The Role of Criticism
It is right to recall what Lord Denning MR said 23 when the then Mr. Quintin Hogg QC MP launched a broadside in the press against a judgment of the Court of Appeal:
"It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.
Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right". “
The writer will not debate the decision with the Deputy Chief Justice about the SADC Tribunal decision but it is salutary to note that there is a standing convention that judges do not criticize decisions of Appellate courts especially in matters the judge sat in. That old wisdom is not invaluable. Judges of the High Court may have serious views about decisions of the Supreme Court, but we do not want to see the day they will criticize the higher court for overturning them. It has long been accepted that final courts are infallible. They are infallible because they are final. If there was a higher court than the Supreme Court, many of its decisions would have been reversed too.
It is unhelpful that the Deputy Chief Justice gave his views attacking a decision that the Government of Zimbabwe has already indicated its desire to ignore. The attack regrettable gives fuel to a decision to undermine the rule of law.
Conclusion
Lord Bolingbroke put it no better than most when he said of the legal profession:
“The practice of law, in its nature the noblest and most beneficial to mankind, in its abuse an abasement of the most sordid kind.”
It is our hope that the Bench and the Bar will find the ethical compass required to deliver justice to all.
The Legend Of Aiden Diggeden
Zimbabwe’s legendary Ford car obsessed prison breaker: Aiden Diggeden
In 1984, while doing grade five at Driefontein Mission one of my Harare friends serenaded us with the stories of a legendary criminal and jail breaker he referred to as ‘Diggy Den’. I was fascinated by the tales told, though I never believed any of them. I was partly embarrassed too because being a policeman’s son, I had never heard of this Diggeden. During the next holidays, I asked my father about Diggeden. My father related how this thieving and amazing white man escaped from any jail that ever tried to hold him. I was fascinated by it all.
Then one Saturday morning some twenty five later, I went hunting for old books in Melville in Johannesburg. While trawling through old books from Rhodesia, my eyes were attracted by a book with the titled ‘Some Famous Rhodesian Trials’ by Alan Hardy. On opening the book, I was overjoyed to discover that one of the criminals covered in the book was Aiden Diggeden. For the first time, I had finally found something written and authentic about Diggeden. I immediately paid the R 180 price for the used book. It was money well spent. Aiden Diggeden was indeed one of those to whom the name legend is used without exaggeration. He was a criminal, yes, but one who made his trade proud. Alan Hardy narrates an amazing story of a man who could escape from any prison and yet had an obsession to steal Ford motor cars.
History
Diggeden was born in Bulawayo in 1939. He attended his primary school there before proceeding to Chaplin High School in present day Gweru for his high school education. Chaplin was also Ian Douglas Smith’s alma mater. Even in his days at Chaplin, he proved quite an adept thief. On leaving school, Diggeden was sent to prison in 1962 for stealing five cars- all of them Fords! He was sentenced to four years’ hard labour. Yet imprisonment, or should I say being in prison, Diggeden did not stop him!
On 30th September 1962, a large quantity of electric goods was stolen from a large Bulawayo shop. On the same day, a Ford Zephyr and a Ford Consul were reported stolen. One of the cars was found parked opposite Grey’s Prison, where Diggeden was serving his sentence. The police were at sea about the culprits who had committed the crime.
A month later, CABS offices in North End, Bulawayo were broken into and a large safe was stolen. On the same day, it was reported that two cars, a Ford Zephyr and a Ford Consul had been stolen. The safe was recovered in a farming area after the culprits were disturbed while trying to break it open. Once again, one of the stolen cars the Ford Consul was found parked opposite the prison.
Two days later, robbers staged a daring attempted to steal $ 32, 000 which were wages being transported by the railways. After a mishap, the robbers disappeared into the night without managing to steal the cash. Police found a stolen Ford car next to the Mpopoma Siding, while another Ford was found near Grey Street Prison! A mistake in the railway robbery attempt gave the police the clue they wanted. A key dropped by the robbers showed that it belonged to Grey Street prison. The police were excited about the three prisoners sharing a cell: Diggeden, a renowned car thief with a penchant for Ford cars; Rinder who had attempted to use explosives in a bank robbery; and a violent criminal called Scalding. As Hardy says:
‘They were safely in gaol at the time of the unsuccessful train robbery and each of the previous unsolved robberies.’
However, thorough police interrogations got Rinder and Scalding confessing. They had smooth talked a prison guard to allow them to go in and out of prison. On searching their cell, the police found an assortment of tools useful for their crime spree. But Diggeden, a former Railways employee himself, could not stomach a new criminal trial for the crimes committed from prison. He therefore planned his escape from prison. The plan was to stage a mass break out. The rest of the prisoners would surrender once outside the prison walls, while Diggeden and his associates would escape. During the escape, Rinder and Scalding developed cold feet and gave themselves up, but not Diggeden! He vanished into thin and was ‘neither seen nor heard of again in Rhodesia until 1965’. Diggeden had ‘made his way to South Africa where he operated under assumed names. Posing as a car salesman he continued his life of crime in a somewhat more flamboyant fashion.’ He reportedly got so good at trampoline that he won the South African trampoline title.
By this time, Diggeden was operating under a false name. He was known as Colin Nicholas Trauter. He was arrested for car theft but escaped from a jail in Johannesburg before trial. He never returned to Johannesburg until 1980. During his South African stay Diggeden had not done small jobs. He had ‘some fifty known cases of car theft’!
Diggeden re-entered Zimbabwe in February 1966 through Forbes Border Post in present day Mutare with a companion named John Terence Dillman. They had British passports and pretended to be visitors in transit to Zambia. Shortly after arriving in the then Salisbury, Diggeden and his friend did something uncharacteristic- they stole a Mini Cooper! They then went to CABS branch in Mabelreign and held up the teller before making off with $ 1,750 using a toy gun. The police was put on national alert. Meanwhile, Diggeden and his companion had headed to the City of Kings by train. They decided to check into the Plaza Hotel and hired a room in the name of J T Dillman. When police came around the hotel sniffing around for them, the pair made off from the breakfast table and left behind $ 1 680 of the bank loot behind in Room 111! Police also found two passports in the name of JT Dillman. This enabled the police to link Diggeden to the bank robbery. The teller identified the two men in the passports as the robbers.
A nationwide manhunt was launched, but it came to no avail. Police then received the news that Diggeden and Dillman had been arrested in Zambia for car theft and had been convicted and sentenced to three years imprisonment. Two senior detectives travelled to Zambia to interrogate them. While Dillman admitted the offences, Diggeden denied everything. Yet, he informed the detectives that he intended to escape from prison in Zambia. Diggeden was found with a hack-saw blade which he intended to use for his escape and was charged with attempted escape in the Zambia High Court on 9th September 1966. Diggeden lived up to his reputation. During the court proceedings, Diggeden sprinted out of court and disappeared into thin air!
On arrival in Bulawayo two days later, the fugitive was arrested by detectives. He pleaded guilty to a number of the crimes he was facing and was sentenced to thirteen years in jail. In order to ensure that Diggeden served his sentence, they transferred him to Salisbury maximum prison (Harare Prison, next to Morris Depot). When prison authorities heard rumours that Diggeden was planning another escape, they confronted him. Typically, he replied that the prison would never hold him. They had been warned! As Hardy relates:
‘Just one year after his recapture, at 3.45pm on 31 January 1968, one of the most daring and ingenious escapes in the annals of Rhodesian prisons was under way. Months of planning and preparation went into this amazing man’s next bid for freedom.’
Aiden Diggeden had fortuitously come across the master key of the maximum security section. He had sketched and made a copy at the prison workshop. He had also stolen civilian clothes from the store room and also made another key for the trap door above the maximum section. Diggeden and his accomplice Lionel Barker used their duplicate keys to escape from cells into the loft. From there they made a ladder using stolen towels and other materials. They then crawled on the roof timbers and opened an air-vent they had previously loosened. As Hardy narrates:
‘Here they paused, forty feet above the ground. After securing the rope-ladder, Barker went first, but is weight was too much for the ladder and he plunged to the ground, breaking his leg in the fall.’
This is the moment we would shout in the village, ‘koinda nhete hobvu dzokorwa nemanda’! The fat one was pulled back by his weight! The injury cost Barker his escape. But Diggeden would not abandon his comrade. He carried him to the prison chapel and prepared him a bed with bench cushions. Diggeden stayed with Barker comforting him until at 4.30am when Diggeden then made his next move. Barker remained in pain in the chapel and would not alert anyone until Diggeden was well on his way. Diggeden used one of the chapel benches to jump over perimeter and made his way to the prison parking area. He concealed himself under one of the trucks and at 5.30am, he was driven out of the prison while hiding between the body and the chassis.
Diggeden slipped off and made his way to what is now Chikurubi Support Unit. ‘Walking to the police depot nearby, and in his usual audacious manner, he stole a bicycle which belonged to a depot inspector, and rode to Salisbury.’ Diggeden was back to freedom! Another national man hunt was unleashed.
Surprise, surprise...on getting into the city, Diggeden stole another Ford Anglia. The Ford Anglia found abandoned the next day along Mazoe Street. He stole another Ford which the police found abandoned near the central police station. Diggeden went under and only surfaced some days later in Bulawayo. A detective gave chase as Diggeden drove a stolen car but lost the target. On 7th February, the police finally made a breakthrough. ‘An African storekeeper telephoned the police saying that a man who could have been Diggeden had been into the store and had then boarded an African bus heading for Essexvale (now Esigodini). Diggeden was arrested on the bus. He was taken back to Harare and, seeing all his accomplices had confessed, admitted what had happened. He was sentenced to a further eighteen months for escaping. He now faced a total imprisonment of fourteen and a half years.
But Diggeden would not be suppressed. A year later he made another dash for freedom. This time, he asked to see the prison senior officials. He just dashed off while being accompanied back to holding cells from the visit. He out sprinted the surprised guards and scaled a sixteen feet wall to momentary freedom. A detective who was nearby disturbed this dash to freedom. Diggeden was arrested again. His additional sentence meant that he faced the prospect over sixteen years in jail.
But Diggeden was not done yet. ‘At 6.45pm on 6 August 1970, the seemingly inconceivable happened. Diggeden, under stringent maximum security surveillance and confined to a cell measuring ten feet by eight feet and ten feet high, for approximately sixteen hours a day, was reported to have escaped from prison and was again on the run!’A massive man hunt was called off three hours later after Diggeden ‘was found hiding in a water-tank on the roof of one of the cell blocks.’ Another year was added to his sentence for the attempted escape.
According to Hardy:
‘The forlorn outlook of over seventeen years of incarceration and the possibility of extradition to South Africa at the end of his prison term in Rhodesia, gave Diggeden little to look forward to other than to plan his next escape, and somehow to get out of the country.’
As expected, Diggeden escaped again from the maximum prison on 15 November 1971. This time he used a key he made in the prison workshop to escape the maximum security section. Hardy explains the most incredible escape plan:
‘His plan was so extraordinarily impudent that it is difficult to believe he actually got away with it. Dressed as a prison guard ostensibly in charge of two European prisoner- one carrying a film projector and the other a screen- Diggeden nonchalantly walked to the main gate of the prison.
Disguising his voice, and in an admirably authoritative manner, Diggeden told the duty warder to open the gate as he had outside work for the two prisoners to perform, saying that he was taking the two men to give a cine show at the prisoners’ mess.
Bidding his ‘colleague’ a pleasant ‘cheerio’, the duty warder opened the main gate and let the three men out!’
You have to give it to Diggeden! Once outside the prison, he stole ‘a warder’s Ford Anglia which was parked outside the prison gate and the three men drove towards the city centre.’ They were free for a few days before a tip-off from members of the public who had seen them driving a white Ford in the Avenues area started a man hunt ‘described as the biggest in Rhodesian history’. Diggeden and his two accomplices were finally cornered in the Avenues that evening and arrested. In February 1972, Diggeden received ‘two years’ hard labour for escaping and an addition two years’ hard labour for taking and driving a car without the owner’s consent. Three years and six months of the sentence were conditionally suspended.’
This sentence marked the last time Diggeden would attempt to escape from prison. He served twelve years out of a sentence of eighteen years and was released from prison on 16 November 1978. The day after his release, he left for England to take up a job as an accounts clerk. While in England, Diggeden found time to write a letter to the police magazine the Outpost. The letter was reproduced by other national papers. In the letter, he praised the police for the hard work they put in ensuring that he was arrested for his offences!
But Diggeden was not done with crime. On 11 April 1980, newspapers reported that Diggeden had been jailed for five years for stealing 41, 000 British Pounds from British employers. Shiri ine muririwo wayo! The money was apparently squandered on a trip to South Africa, where he had unfinished business with the law over the theft of over fifty cars some years before.
The whereabouts of Aiden Diggeden remain a mystery. He is one compatriot I would want to sit down with and listen to the story of his life. His obsession with Ford, his aversion to imprisonment and his ability to escape from prisons make him a true legend in his own right. It is said that much of his loot was invested in Kruger Rands gold coins in South Africa. If you see a wealthy fellow, in his 70s, driving a Ford, you may be in the presence of ‘greatness’!
May we never see his like again!
Tererai Mafukidze is a lawyer. He can be contacted on tereraim@gmail.com. His article on Aiden Diggeden is based on ‘Aiden Diggeden: “No Gaol Can Hold Me”, in Alan Hardy’s ‘Some Famous Rhodesian Trials’, Books of Zimbabwe, 1981 page 119-132.
In 1984, while doing grade five at Driefontein Mission one of my Harare friends serenaded us with the stories of a legendary criminal and jail breaker he referred to as ‘Diggy Den’. I was fascinated by the tales told, though I never believed any of them. I was partly embarrassed too because being a policeman’s son, I had never heard of this Diggeden. During the next holidays, I asked my father about Diggeden. My father related how this thieving and amazing white man escaped from any jail that ever tried to hold him. I was fascinated by it all.
Then one Saturday morning some twenty five later, I went hunting for old books in Melville in Johannesburg. While trawling through old books from Rhodesia, my eyes were attracted by a book with the titled ‘Some Famous Rhodesian Trials’ by Alan Hardy. On opening the book, I was overjoyed to discover that one of the criminals covered in the book was Aiden Diggeden. For the first time, I had finally found something written and authentic about Diggeden. I immediately paid the R 180 price for the used book. It was money well spent. Aiden Diggeden was indeed one of those to whom the name legend is used without exaggeration. He was a criminal, yes, but one who made his trade proud. Alan Hardy narrates an amazing story of a man who could escape from any prison and yet had an obsession to steal Ford motor cars.
History
Diggeden was born in Bulawayo in 1939. He attended his primary school there before proceeding to Chaplin High School in present day Gweru for his high school education. Chaplin was also Ian Douglas Smith’s alma mater. Even in his days at Chaplin, he proved quite an adept thief. On leaving school, Diggeden was sent to prison in 1962 for stealing five cars- all of them Fords! He was sentenced to four years’ hard labour. Yet imprisonment, or should I say being in prison, Diggeden did not stop him!
On 30th September 1962, a large quantity of electric goods was stolen from a large Bulawayo shop. On the same day, a Ford Zephyr and a Ford Consul were reported stolen. One of the cars was found parked opposite Grey’s Prison, where Diggeden was serving his sentence. The police were at sea about the culprits who had committed the crime.
A month later, CABS offices in North End, Bulawayo were broken into and a large safe was stolen. On the same day, it was reported that two cars, a Ford Zephyr and a Ford Consul had been stolen. The safe was recovered in a farming area after the culprits were disturbed while trying to break it open. Once again, one of the stolen cars the Ford Consul was found parked opposite the prison.
Two days later, robbers staged a daring attempted to steal $ 32, 000 which were wages being transported by the railways. After a mishap, the robbers disappeared into the night without managing to steal the cash. Police found a stolen Ford car next to the Mpopoma Siding, while another Ford was found near Grey Street Prison! A mistake in the railway robbery attempt gave the police the clue they wanted. A key dropped by the robbers showed that it belonged to Grey Street prison. The police were excited about the three prisoners sharing a cell: Diggeden, a renowned car thief with a penchant for Ford cars; Rinder who had attempted to use explosives in a bank robbery; and a violent criminal called Scalding. As Hardy says:
‘They were safely in gaol at the time of the unsuccessful train robbery and each of the previous unsolved robberies.’
However, thorough police interrogations got Rinder and Scalding confessing. They had smooth talked a prison guard to allow them to go in and out of prison. On searching their cell, the police found an assortment of tools useful for their crime spree. But Diggeden, a former Railways employee himself, could not stomach a new criminal trial for the crimes committed from prison. He therefore planned his escape from prison. The plan was to stage a mass break out. The rest of the prisoners would surrender once outside the prison walls, while Diggeden and his associates would escape. During the escape, Rinder and Scalding developed cold feet and gave themselves up, but not Diggeden! He vanished into thin and was ‘neither seen nor heard of again in Rhodesia until 1965’. Diggeden had ‘made his way to South Africa where he operated under assumed names. Posing as a car salesman he continued his life of crime in a somewhat more flamboyant fashion.’ He reportedly got so good at trampoline that he won the South African trampoline title.
By this time, Diggeden was operating under a false name. He was known as Colin Nicholas Trauter. He was arrested for car theft but escaped from a jail in Johannesburg before trial. He never returned to Johannesburg until 1980. During his South African stay Diggeden had not done small jobs. He had ‘some fifty known cases of car theft’!
Diggeden re-entered Zimbabwe in February 1966 through Forbes Border Post in present day Mutare with a companion named John Terence Dillman. They had British passports and pretended to be visitors in transit to Zambia. Shortly after arriving in the then Salisbury, Diggeden and his friend did something uncharacteristic- they stole a Mini Cooper! They then went to CABS branch in Mabelreign and held up the teller before making off with $ 1,750 using a toy gun. The police was put on national alert. Meanwhile, Diggeden and his companion had headed to the City of Kings by train. They decided to check into the Plaza Hotel and hired a room in the name of J T Dillman. When police came around the hotel sniffing around for them, the pair made off from the breakfast table and left behind $ 1 680 of the bank loot behind in Room 111! Police also found two passports in the name of JT Dillman. This enabled the police to link Diggeden to the bank robbery. The teller identified the two men in the passports as the robbers.
A nationwide manhunt was launched, but it came to no avail. Police then received the news that Diggeden and Dillman had been arrested in Zambia for car theft and had been convicted and sentenced to three years imprisonment. Two senior detectives travelled to Zambia to interrogate them. While Dillman admitted the offences, Diggeden denied everything. Yet, he informed the detectives that he intended to escape from prison in Zambia. Diggeden was found with a hack-saw blade which he intended to use for his escape and was charged with attempted escape in the Zambia High Court on 9th September 1966. Diggeden lived up to his reputation. During the court proceedings, Diggeden sprinted out of court and disappeared into thin air!
On arrival in Bulawayo two days later, the fugitive was arrested by detectives. He pleaded guilty to a number of the crimes he was facing and was sentenced to thirteen years in jail. In order to ensure that Diggeden served his sentence, they transferred him to Salisbury maximum prison (Harare Prison, next to Morris Depot). When prison authorities heard rumours that Diggeden was planning another escape, they confronted him. Typically, he replied that the prison would never hold him. They had been warned! As Hardy relates:
‘Just one year after his recapture, at 3.45pm on 31 January 1968, one of the most daring and ingenious escapes in the annals of Rhodesian prisons was under way. Months of planning and preparation went into this amazing man’s next bid for freedom.’
Aiden Diggeden had fortuitously come across the master key of the maximum security section. He had sketched and made a copy at the prison workshop. He had also stolen civilian clothes from the store room and also made another key for the trap door above the maximum section. Diggeden and his accomplice Lionel Barker used their duplicate keys to escape from cells into the loft. From there they made a ladder using stolen towels and other materials. They then crawled on the roof timbers and opened an air-vent they had previously loosened. As Hardy narrates:
‘Here they paused, forty feet above the ground. After securing the rope-ladder, Barker went first, but is weight was too much for the ladder and he plunged to the ground, breaking his leg in the fall.’
This is the moment we would shout in the village, ‘koinda nhete hobvu dzokorwa nemanda’! The fat one was pulled back by his weight! The injury cost Barker his escape. But Diggeden would not abandon his comrade. He carried him to the prison chapel and prepared him a bed with bench cushions. Diggeden stayed with Barker comforting him until at 4.30am when Diggeden then made his next move. Barker remained in pain in the chapel and would not alert anyone until Diggeden was well on his way. Diggeden used one of the chapel benches to jump over perimeter and made his way to the prison parking area. He concealed himself under one of the trucks and at 5.30am, he was driven out of the prison while hiding between the body and the chassis.
Diggeden slipped off and made his way to what is now Chikurubi Support Unit. ‘Walking to the police depot nearby, and in his usual audacious manner, he stole a bicycle which belonged to a depot inspector, and rode to Salisbury.’ Diggeden was back to freedom! Another national man hunt was unleashed.
Surprise, surprise...on getting into the city, Diggeden stole another Ford Anglia. The Ford Anglia found abandoned the next day along Mazoe Street. He stole another Ford which the police found abandoned near the central police station. Diggeden went under and only surfaced some days later in Bulawayo. A detective gave chase as Diggeden drove a stolen car but lost the target. On 7th February, the police finally made a breakthrough. ‘An African storekeeper telephoned the police saying that a man who could have been Diggeden had been into the store and had then boarded an African bus heading for Essexvale (now Esigodini). Diggeden was arrested on the bus. He was taken back to Harare and, seeing all his accomplices had confessed, admitted what had happened. He was sentenced to a further eighteen months for escaping. He now faced a total imprisonment of fourteen and a half years.
But Diggeden would not be suppressed. A year later he made another dash for freedom. This time, he asked to see the prison senior officials. He just dashed off while being accompanied back to holding cells from the visit. He out sprinted the surprised guards and scaled a sixteen feet wall to momentary freedom. A detective who was nearby disturbed this dash to freedom. Diggeden was arrested again. His additional sentence meant that he faced the prospect over sixteen years in jail.
But Diggeden was not done yet. ‘At 6.45pm on 6 August 1970, the seemingly inconceivable happened. Diggeden, under stringent maximum security surveillance and confined to a cell measuring ten feet by eight feet and ten feet high, for approximately sixteen hours a day, was reported to have escaped from prison and was again on the run!’A massive man hunt was called off three hours later after Diggeden ‘was found hiding in a water-tank on the roof of one of the cell blocks.’ Another year was added to his sentence for the attempted escape.
According to Hardy:
‘The forlorn outlook of over seventeen years of incarceration and the possibility of extradition to South Africa at the end of his prison term in Rhodesia, gave Diggeden little to look forward to other than to plan his next escape, and somehow to get out of the country.’
As expected, Diggeden escaped again from the maximum prison on 15 November 1971. This time he used a key he made in the prison workshop to escape the maximum security section. Hardy explains the most incredible escape plan:
‘His plan was so extraordinarily impudent that it is difficult to believe he actually got away with it. Dressed as a prison guard ostensibly in charge of two European prisoner- one carrying a film projector and the other a screen- Diggeden nonchalantly walked to the main gate of the prison.
Disguising his voice, and in an admirably authoritative manner, Diggeden told the duty warder to open the gate as he had outside work for the two prisoners to perform, saying that he was taking the two men to give a cine show at the prisoners’ mess.
Bidding his ‘colleague’ a pleasant ‘cheerio’, the duty warder opened the main gate and let the three men out!’
You have to give it to Diggeden! Once outside the prison, he stole ‘a warder’s Ford Anglia which was parked outside the prison gate and the three men drove towards the city centre.’ They were free for a few days before a tip-off from members of the public who had seen them driving a white Ford in the Avenues area started a man hunt ‘described as the biggest in Rhodesian history’. Diggeden and his two accomplices were finally cornered in the Avenues that evening and arrested. In February 1972, Diggeden received ‘two years’ hard labour for escaping and an addition two years’ hard labour for taking and driving a car without the owner’s consent. Three years and six months of the sentence were conditionally suspended.’
This sentence marked the last time Diggeden would attempt to escape from prison. He served twelve years out of a sentence of eighteen years and was released from prison on 16 November 1978. The day after his release, he left for England to take up a job as an accounts clerk. While in England, Diggeden found time to write a letter to the police magazine the Outpost. The letter was reproduced by other national papers. In the letter, he praised the police for the hard work they put in ensuring that he was arrested for his offences!
But Diggeden was not done with crime. On 11 April 1980, newspapers reported that Diggeden had been jailed for five years for stealing 41, 000 British Pounds from British employers. Shiri ine muririwo wayo! The money was apparently squandered on a trip to South Africa, where he had unfinished business with the law over the theft of over fifty cars some years before.
The whereabouts of Aiden Diggeden remain a mystery. He is one compatriot I would want to sit down with and listen to the story of his life. His obsession with Ford, his aversion to imprisonment and his ability to escape from prisons make him a true legend in his own right. It is said that much of his loot was invested in Kruger Rands gold coins in South Africa. If you see a wealthy fellow, in his 70s, driving a Ford, you may be in the presence of ‘greatness’!
May we never see his like again!
Tererai Mafukidze is a lawyer. He can be contacted on tereraim@gmail.com. His article on Aiden Diggeden is based on ‘Aiden Diggeden: “No Gaol Can Hold Me”, in Alan Hardy’s ‘Some Famous Rhodesian Trials’, Books of Zimbabwe, 1981 page 119-132.
Shumo dzaLocadia
Shumo that Locadia wishes she had known (with apologies to pastoral wisdom)
1. Rinonyengwa rinohwarara, rinobuda muHerald rava kuState House.
2. Chiri muhana chiri muninga, chiri muHerald mutoro waMambo.
3. Uswa hwenyati ndohwuri mudumbu, hwuri mumuromo inofa nahwo.
4. Chisina kuuya nomunyai chinorova.
5. Majichimbo-chimbo anofara musi wafa kondo ziso.
6. Kuwanikwa hwumbangu, kurambwa hwumbangu.
7. Makunguwo zvaakahla kubuda muHerald, akarambwa mangani?
8. UFirst Lady ingoma yomusiyiramwa.
9. Gozho mhini gara mumwena kwete muHerald, chomudzimu chikuwanire imomo.
10. Zvatumwa wabvira Sekuru kutumwa kunobhadhara damage ivo vosvika vopereka mwenga.
11. Zvikoni-zvikoni kurambwa nePress Statement hakuna gupuro.
1. Rinonyengwa rinohwarara, rinobuda muHerald rava kuState House.
2. Chiri muhana chiri muninga, chiri muHerald mutoro waMambo.
3. Uswa hwenyati ndohwuri mudumbu, hwuri mumuromo inofa nahwo.
4. Chisina kuuya nomunyai chinorova.
5. Majichimbo-chimbo anofara musi wafa kondo ziso.
6. Kuwanikwa hwumbangu, kurambwa hwumbangu.
7. Makunguwo zvaakahla kubuda muHerald, akarambwa mangani?
8. UFirst Lady ingoma yomusiyiramwa.
9. Gozho mhini gara mumwena kwete muHerald, chomudzimu chikuwanire imomo.
10. Zvatumwa wabvira Sekuru kutumwa kunobhadhara damage ivo vosvika vopereka mwenga.
11. Zvikoni-zvikoni kurambwa nePress Statement hakuna gupuro.
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