The other day, as a legal expert, I offered to take a technical expert in the environmental field through one or other of the posse of South African environmental Acts to demonstrate the difference in a legal register based on legal expertise, and one based on non-legal but technical and other expertise. Knowing the hegemony technical expertise have, over legal experts, in the field of legal registers (yes, it is a contradiction isn’t it), I did so hesitantly.
The response was as expected – that they knew the relevant legislation inside out because they’d read it and read it, again and again, and knew every word and part of it inside out and knew and understood what it said, and had no problem with it and how to apply it. It was the same response I get from most non-legal professionals and practical experts.
Of course, this reflects things exactly as they should be: Everyone is presumption to know the law, from the non-legal technical experts to the car-guard, so all you have to do is read the law thoroughly to know it, and Bob’s your Uncle, no legal expert is required.
However, here’s the basic and fundamental truth about South Africa today that time and again works against the presumption that we all know the law: Much of what we think of as South African law just does not, for one or other of a myriad of reasons, amount to law. Much of South African law is, again for a myriad of reasons, it is just not knowable law. And much of it is not capable of being applied, again for a myriad of reasond.
These all operate against the presumption that we all know the law and must bear the consequences should we not obey the law. I mean, what value the presumption when what you know as law is not law at all? And, how can you enforce law that is un-knowable because it was pushed in some official’s bottom draw instead of being published, or is just so much gibberish that no-one can understand it? How can you be presumed to know the law when to whom it applies is not made clear? How can you act in compliance of it when elements of its potential transgressions are not properly stated? And, why should anyone act in terms of a law with no consequences to disobeying it?
Unfortunately non-legal experts, acting on the presumption that everyone is expected to know the law, imagine that reading and rereading the law until they know it inside out and upside down, is enough. Well and good. However, they are absolutely unable to discern whether what is put before them is the law, or not. They are equally unable to evaluate whether or not it meets the standard of being knowable law, or not. They are unable to develop and apply basic tests of whether or not they (or their clients) are potential transgressors of that law. Ditto in relation to developing potential transgression tests. They have sparse regard to whether those laying down the law to them or their clients have the powers to do so, mainly because they have a fundamental lack of understanding of even the most basic legal concepts of administrative power, let alone the difference between assigned or delegated administrative powers, or duties, and instead depend on symbols of power such as a uniform, a badge, an official looking piece of paper, to decide whether someone has any power under law to enforce the law. They equally struggle terribly with the procedural and substantive content of the law and in particular with how to deal with gibberish law, or missing content to the law (“Where’s the procedure to get a licence?” is a common refrain).
The real danger in avoiding legal experts, within a scenario where what purports to be the law is often not the law, and where what is the law is often so much gibberish that it is not what it seems to be, is this: “The law” becomes what everyone thinks it is. Or what they think it should be. Or what they think it is likely to be. It even becomes what the clerk at the government counter in Durban says it is. Or what the non-legal compliance expert says it is. Or the police at the road-block say it is.
It would seem too obvious for words to point to the gravity of a situation where the law is whatever Tom, Dick or Harry says it is.
Is there anyone out there who really needs an explanation of the problems that will inherently emerge from a situation in which companies can and must decide for themselves what the law is? Which allows powerful government officials to decide what the law is on a day to day basis? Whic allows counter workers at government departments to stand, hands deep in pockets, doing nothing other than laying down impossible requirements for fulfilling the requirements of the law (like “Fill in Form XXX but sorry I cannot give it to you because they have not been designed or printed yet)? Which allows very expensive technical expert to lay down the law and how to comply with the law, who insist the expenditure just must be made, and that her/his expensive involvement just must be ongoing?
OK OK now, I hear the screams of integrity coming from various companies, from powerful government officials, from government counter hacks and from technical experts but, really, aside from you out there who mean it, what of the rest? I even hear hurumphs of legal experts out there saying, “What rubbish, I’ve never come across this problem with the law! What is she going on about?”. To you, I say give me a call. No charge. Strangely, recently, I’ve also begun to hear the screams of “Shut up, don’t let everyone know!” when I go on about this, from the set of people who have realised the gap between the law and reality and who have begun a feeding frenzy.
But sum, and at end, I have to point out that it is precisely this scenario wherein we all fail the rule of law, and the rule of law fails us.
Where does this all leave us? It leaves me with a hobby-horse I ride whenever I can. It leaves those with legal registers drawn up by non-legal experts at risk of transgressing legislation they don’t know exists, or at risk of expenditure against the risk of legislation that they need not worry about at all. It leaves all those with vested interests in being able to decide what the law is, and what powers they have, stone cold. Strange. That suddenly reminded me of what B.J. Voster said on Steve Biko’s death: “It leaves me cold”.