A senior attorney at one of South Africa’s most prestigious law firms once told me something remarkable after I mentioned a rule of law advantage he could take in a matter he was dealing with: “If I walk into court with a Butterworths under my arm, the Judge will believe that is the law.”
Think about what this reveals. First, Butterworths is a commercial publisher—not the official Government Gazette. Yet judges accept it as authoritative without checking official sources. And attorneys know this and do likewise. Second, Butterworths does not contain content or comment relevant to the Rule of law, so when they walk into court with a Butterworths under their arm, they walk into court bereft of a Rule of law point of view and the judge bereft of evidence of its failure.
And here’s what makes this especially troubling: Add to this our extensive research that has documented a wide spectrum of clear, provable Rule of law violations across South African at all levels and all spheres of governance—Acts delayed for years, some never commenced, amended in their wrong versions, entities operating without legal existence, applied by those without authority, the vast majority of which are not raised by legal representatives either with their clients or before court in framing their cases.
Why not?
The Conventional Answer: Greed and Moral Failure
The usual explanation frames this as a decline in professional ethics. Attorneys have become “money-grubbers,” corrupted by commercial pressures, abandoning their duties to pursue profitable cases.
This is a conventional truth: Attorneys do optimize for revenue. Every minute is a buck. But framing it simply as moral failure misses the opportunity to frame it more fundamental from within an understanding of how the governance system actually works.
What the Data Shows
Our data analysis extends beyond provincial Acts to national legislation and government actions across all spheres of governance. The documented failures include: Acts published without proper gazette notices, statutes commenced years after passage (some never commenced at all), amendments applied to wrong textual versions rendering them legally void, government entities operating without the statutory authority creating them, officials acting beyond their delegated powers, and subordinate legislation issued without parent Act authorization. The pattern is systemic, measurable, and thoroughly documented.
Our analysis of 170 provincial Acts (2016-2020) reveals implementation delays averaging 82 days nationally. Some provinces average 9 months. Individual cases exceed three years. All of which can be readily boiled down to one or other established ROL or Constitutional principle.
In addition these violations are:
- Objectively measurable (published gazette dates)
- Clearly transgressive (statutory timelines violated)
- Fully documented (complete timeline records available)
- Easy to prove (no complex legal theory required)
Perfect cases for mandamus applications. Courts could simply order government compliance. Perfect for identifying insurmountable reason for either a client or opposition parties to drop their cases, making the Rule of law excellent low-hanging fruit ready for the plucking.
Yet, legal representatives systematically fail to even recognize, let alone pluck that fruit. Our research indicates that this is because they lack the framework that clarifies how legal representatives could interact with these failures, as opportunities.
The SROL offers a framework to explain this phenomenon in terms other than moral decay.
The SROL Framework Explanation: Selection Pressure
The Science-based Rule of Law framework reveals that it is not simply individual moral failure of legal professionals that is at work, but that a different and more fundamental systemic mechanism—selection pressure—is at work.
Here’s how the system actually operates:
The system demands ROL compliance. Attorneys are “officers of the court,” bound by duties to uphold the law, serve justice, challenge governance violations.
But the system actually rewards revenue generation. Attorneys must survive in legal markets.
Where the first is not monitored, the second ensures that money talks and attorney’s pursue:
- Cases where violators can pay damages
- Complex matters justifying high fees
- Repeat institutional clients with budgets
From these two pressures two types of attorneys evolve in practice:
- ROL-committed: Pursue constitutional violations → lose money → exit profession
- Transactionalist: Pursue profitable cases → generate revenue → thrive
Transactionalism is the practice of extracting leverage from the failure of attorneys to carry out their duties as officers of court—creatures of statute who must understand and remain within the ambit of the ROL. It exploits the gap where statutory duties go unenforced, turning what should be violations into profitable strategies.
Over time, transactionalists come to dominate through simple selection. And the further the ROL degrades, the more valuable transactionalist skills become and the more varied and creative it becomes without the guard-rails of the ROL:
- Delay tactics work better when delays already work
- Judge-shopping matters more when judiciary is captured
- Procedural manipulation pays more when procedures are inconsistent
The terminal state? Pure transactionalism. No ROL pretense required. Attorneys openly working deals coordinating interests rather than legal arguments.
The most successful practitioners aren’t the most corrupt (although they might be that)—they’re the best adapted to actual system conditions.
The Missing Enforcement Mechanism
The ROL framework reveals what’s missing: Judiciary enforcement of attorney duties as officers of court.
If judges strictly enforce attorney duties as officers of the court who have a statutory duty to act not only with the law, but within the ambit of the ROL, then transactionalism would become expensive. ROL-committed attorneys could compete. And selection pressure would reverse.
Where Attorneys fail their mandatory duty to represent the ROL they would face sanctions such as:
- Sanctions for filing frivolous motions
- Disbarment for misleading court
- Professional misconduct for failing to raise obvious ROL violations
But without enforcement, transactionalist behavior has no cost and the rational response is to optimize for revenue, push the ROL in the bottom draw and understand the law simply by its words.
Transactionalism isn’t corruption—it’s adaptation to systemic breakdown of the checks of the balances the ROL sets in place, which places a burden on ethical and moral explanations which cannot be fulfilled.
The Broader Pattern
This mechanism isn’t limited to attorneys. It operates wherever exclusive powers exist without enforcement:
- Judges who won’t rule (remaining “neutral” rather than adjudicating)
- Officials who won’t execute statutes (exercising “discretion” rather than implementing law)
- All enabled by the same missing enforcement structure
The legal profession’s systematic avoidance of documented ROL violations isn’t a puzzle requiring moral judgment. It’s a predictable outcome of coordination structure and selection environment.
Attorneys as ROL Gatekeepers: The Chain That’s Broken
Here’s what the SROL framework reveals that conventional analysis misses: attorneys function as essential gatekeepers between the Public and access to ROL enforcement.
The Public holds the exclusive power to challenge state actions—but can only exercise this power through legal representation before the Judiciary. When attorneys systematically fail to raise ROL violations, they don’t just abandon their professional duties—they close the gate that enables Public access to ROL remedies.
The enforcement chain should work like this: Judiciary enforces attorney duties → attorneys properly function as officers of court → Public can access ROL challenges through representation → transgressions get adjudicated.
When any link breaks, the entire chain fails. Currently, Judiciary doesn’t enforce attorney duties → attorneys optimize for revenue instead of ROL → Public cannot access remedies even when violations are fully documented → transgressions continue unchecked.
The documented ROL violations sitting in our databases—the delayed Acts, the void amendments, the unauthorized entities—represent not just government failures, but gatekeeper failures. Attorneys who could unlock Public access to remedies instead leave the gate closed.
The fuller analysis of this gatekeeper mechanism, the component identity dynamics, and the multi-actor demonstration across judges and executive officials, will be available in the SROL Fundamental Papers. But the essential insight is this:
Fix the attorney ROL gatekeeper function, which enables ROL enforcement by the judge, and you restore Public reliance on the ROL. Leave that function broken, and even perfect documentation on the law changes nothing.
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