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? (more…)