The rule of law is not eroded overnight
It is eroded incrementally, cumulatively, by infinitesimal failures and errors that seem of no real significance. And besides a grumble or two, no-one treats those infinitesimal failures as important.
Let me take you through one Notice – by the all-important Legal Practice Council (LPC) – and let me count the ways one single Notice can, in its own incremental way, erode fundamental principles of the rule of law, such that it’s and other such Notices’ cumulatively impact on the rule of law becomes obvious to all when the leeway introduced by incremental erosions of the rule of law make flagrant and grand erosions – such as characterize state capture – possible.
The Notice I want to take you through is one I received recently by email from the LPC, sent to all practicing advocates, advising them of a nomination process for electing 2 members of the LPC. The Notice was issued in terms of Regulation (4)(b) of the LPC’s Regulation [HERE], made under s109(1)(a) of Legal Practice Act 28 of 2014 [HERE], as amended by Act 16 of 2017 [HERE].
Legitimacy and publication
Where does the legitimacy of creatures of statute such as the LPC come from?
The legitimacy of actions of creatures of statute such as the LPC is multi-dimensional but is founded on ensuring that the public has the facts necessary to determine such things as, what legislation has been or is being applied, who is wielding authority in applying it, the process involved in wielding that authority, what the intended outcome is, and in relation to whom.
Official Gazettes traditionally have provided an excellent window through which the public can peer in order to evaluate whether they are being provided with the information necessary to scrutinize the actions of creatures of statute.
Despite a well informed public being necessary to the legitimacy of those who wield power, often Gazette Notices are not published, or are published but do not satisfy the requirements of a well-informed public:
The reasons given for this are varied: There is no budget to cover the costs of publication. It is too difficult to deal with the Government Printing Works. No one is available with the expertise to put the proper facts together. And so on. The grandest of excuses for failing basic rule of law requirements relating to publication is “We have the right to control our own administrative affairs regardless of the public, so publication does not have to be made or participative, and content has to be merely informative”.
Notices in the official Gazettes necessary to creating and maintaining the legitimacy of the power actors in the eyes of an informed participative public have become skimpier and skimpier, and in the main are reduced to minimalist information, which merely points the reader elsewhere for crucial supporting documentation that is not appended to the Notice itself, with directions as to where the supporting documentation may be found.
In moderately minimalist Notices, information is provided as to where additional documentation can be found online via a URL that is usually (but not inevitably) at a website controlled by the relevant government department or entity. Notices that are more minimalist merely give the address at a physical address where it can be found. Even more minimalist Notices are merely emailed to what are thought to be interested or affected parties.
Not only is there a trend to minimalize the content of Notices or only provide them to interested and affected parties, there is an additional trend that prejudices the goal of an informed participative public: The additional and crucial supporting documentation offered elsewhere online or at a physical counter, very often cannot be found at the URL indicated, or can be found elsewhere on the website or another counter, or cannot be found at all, or is taken down sooner than later, or moved somewhere else, or amended and then the amended document put back up online. This means, that the public cannot put themselves in a position to be informed of what creatures of statute are doing, the more seriously correlative being, creatures of statute cannot prove that they put the public in a position to inform themselves because the provenance of them having done so is lost.
And more extreme failures to publish, such as notices issued by creatures of statute which are distributed only by way of email, or by being placed on physical countertop, or by even word of mouth, or at times only by the issue of a new form to fill in that was not preceded by notice of new rules or policies at all.
The usual justification for utilizing such extra-Gazette means of publication is that the subject matter has to do with the internal affairs of the Department or entity which has a right to govern itself, about which the public need not be advised, and therefore public inspection and knowledge is unnecessary.
Back to the LPC email Notice
Such is the LPC Notice I received by email – don’t even enter the public eye, which is directed, unnumbered and undocumented, only in the body of that email from the LPC, the focus and content of which is singularly obscured by a subject line referring the “bi-elections” (whatever those are), and a generic title that could be and probably will be used for any other similar subject-mattered notices by the LPC in future. The notice does not appear to exist yet on any database or Gazette or another form that could in future be used to prove the provenance of the legislation surrounding LPC by-elections in terms of which the LPC purports to act, and the nomination process that the LPC purports to entertain.
Obviously, as far as the public and professionals and interested parties who did not receive the email are concerned, the notice does not exist. The need for nominations does not exist. The nomination process is not underway. And, there is no outcome to expect. And, when they hear of the process second hand, they are likely to draw a big red cross against the LPC, whoever is appointed, and so on. Because they did not participate in that.
Without that paper, electronic or another trail for the public to independently discover, there can be no provenance that the power was exercised at all, no provenance that it was exercised in the proper manner, by those empowered to do so, and no provenance that the outcome of whatever process was followed has legitimacy.
The effect on the rule of law
This LPC Notice, like others of its ilk, is but one instance of incrementally riding roughshod over basic requirements of the rule of law – that of providing correct and sufficient detail of authority being wielded under legislation to interested and affected parties, who often include to the public in general, that enables the public to evaluate whether primary principles of the rule of law are being upheld, and the legitimacy of such as the LPC.
With each instance, the slippery slope towards no rule of law gets steeper.
Let me count the ways…
So, how exactly does the LPC Notice fall foul of the rule of law?
First, for clarity, the email subject line refers to this as a “bi-election“. The LPC website also refers to “bi-election”. Please, can anyone tell me what that is? I imagine it is meant to refer to a “by-election”, but then again maybe the LPC intends something different, or maybe others imagine it as referring to something different from a “by-election”, and that for instance, it is some new-fangled process of the LPC or other powers that be. And so, the rule of law is in a more or less than infinitesimal but – and more importantly, as you will see from the other points I make in this post – cumulative way. The LPC needs to either correct the reference to “bi-election” or explain what they meant by it. This obfuscates what actions are being taken, and raises questions of the competence of those in power within the LPC, thus raising questions of public perceptions about legitimacy.
Second, when trying to reply to the LPC’s email, the default “Reply to” address on the LPC’s email bearing their notice of the nomination process bounces, as does the “From” address. Generally, recipients of an email will just click “Reply” to the email and their email client will fill in the field with that default “Reply to” address, instead of going hunting through the email for different information about where to reply to the email. In addition, there has been no answer to the LPC’s phone 012 338 5800 when this happened to me. This, again to the infinitesimal but cumulative prejudice of the public and other participation processes required by the Regulation. Can the LPC explain how this could not be a problem? Of course not. Unless they realize the cumulative effect of small but persistent prejudices to the rule of law.
Third, I see that the LPC email and hence the Notice is issued in terms of Reg2(4)(b), that it is dated 2020/02/05, and that the deadline for submissions is 2020/02/13 15h00. However, Regulation 5 says a Reg2(4) notice must stipulate the date by which nominations must be received and that that date must not be earlier than 10 days from the date of the notice. Therefore, the notice period identified in the Notice as starting on 2020/02/05 at 9h00 and ending on 2020/02/13 at 15h00 fails the requirements of Reg5. This deadline truncates the required 10 day notice period provided by relevant legislation by 2 days out of 10 – which at 20% is quite substantial. So, that’s another one of the more or less infinitesimal prejudices to the rule of law which, given the cumulative impact of these prejudices, LPC needs to rectify.
Fourth and related, Reg2(5)(b) also provides that where there is no email address for recipients, then Council must post the notice to those recipients. Another small prejudice emerges when one ponders when the required 10 days notice referred to by Reg2(5)(a) starts to run in relation to those recipients to whom notice was posted? Again, the LPC need to fix this further infinitesimal erosion of public participation and compliance with the law that so cumulatively and negatively impacts the rule of law
Fifth, Reg2(5)(c) requires that this Reg2(4) notice must be published in the Government Gazette as close as possible to the dispatch of the notice. As of Friday 2020/02/07 I see no such notice in the Gazette yet, despite that the LPC email and presumably Notice too being dated Wednesday 2020/02/05, and despite there having been time to get the Notice to the Government Printing Works for publication along with the GPS’s normal Friday print and publication run on 2020/02/07. In fact, from the wording of Reg2(5)(c) I see no reason why such a Gazette notice could not or even should not even have been published a little before the email notice, even by last Friday or any day between that and when the email was sent out on 2020/02/05. Another small prejudice to public participation and compliance with the law that cumulatively impacts the rule of law.
Sixth, much of the above goes to whether the recipients of the LPC emailed Notice and the public have been put in a position to know about the Council vacancies, to know there is a process of nomination underway to fill those, and whether they have been put in a position to establish the legitimacy of LPC actions in relation to that subject matter, in the light of requirements of relevant legislation and sub-ordinate legislation, rules, and standards, etc: Here is one question to demonstrate this problem: The email refers to Regulation 2(4) but the Notice does not identify what the publication reference to those Regulations.
I have enough endless examples of Notices issued by Departments and other entities that are issued in terms of draft legislation, out of date legislation, un-commenced legislation, repealed and other legislation, to expect that such Notice confirms exactly what their authors think they are acting in terms of. I need the Notice to say it refers to Regulations made by the Minister under s109(1)(a) of Act 28 of 2014 that was published in Notice 921 in Gazette 41879 dated 2018/08. So, another small erosion of the rule of law that needs to be rectified before I will believe that the LPC did not act in terms of draft Regs, un-commenced Regs and so on.
Seventh, and this is one of the initial things which struck me about the emailed LPC Notice when I tried to respond to it, which become mired by bouncing emails & their ever-ringing and rarely-answered telephone: Their email says the 2 nominations are for “Black” advocates as defined in s1 of Act 53 of 2003. However, that Act only defines “black people”. Therefore, for the Notice to make sense, the LPC needs to either define “Black” differently, or amend its Notice to refer to “black people” not “Blacks”. And, and it would seem necessary that the LPC needs to define the process they will undertake to establish whether nominees are or are not indeed black, or “black people”. I’m hoping that it will not be visual, or by way of an apartheid-style comb in their sock. Maybe they will just go on the surname of the nominee and then a visual search of the nominees’ appearance and speech etc? Another small prejudice to the rule of law, equality and all the rest.
Seventh, nominations are evidently for 2 vacancies which are, as the LPC Notice puts it “(one current and the other to occur on the 1st of June 2020)”. It fails to say which member has already vacated membership already, and when if relevant, why? Why do we need to know this? It is for the same reason we are told who the Minister is for what portfolio. The same reason why were are told who the CEO is of this or that State-controlled entity: It is so we know who has authority to exercise what powers. Another small prejudice to the rule of law by this LPC Notice, with cumulative effect.
Eighth, the LPC Notice does not advise us which particular member is still going to vacate membership of Council on 2020/06/01, the method by which this has become known to them, and the reasons for the vacancy. The public and legal profession need to be in a position to establish who the members of Council are and perhaps as importantly, who they are not, and where a vacancy arises, whether the member vacating Council membership was removed from office, or what. So, hullo another small prejudice to the rule of law with cumulative effect.
Ninth, how come that vacancy – the one that has yet to fall on 2020/06/01 – is already being advertised now through the Notice, instead of after it eventuates on 2020/06/01, as required by the Reg2(4)(b)?
Tenth, the LPC email says the nomination receiving the 2nd highest votes will fill the position made vacant on 2020/06/01. Can they explain the rationale of this? I would have thought that positions were equivalent. Why not, for instance, the other way around, and appoint the nominee receiving the least votes to the already existing vacancy, not the one falling on 2020/06/01? Or, why not draw use a straw method? Is it that the nominee who gets the most votes, deserves the benefits of membership of the Council earlier than the other? If so, why would that be? I’m sorry but the logic here escapes me and I’d no doubt be edified by an LPC explanation of this.
Eleven, I could raise bundles more specific issues relating to this LPC Notice but enough said except for one further point, which is this: Given all the above and the corrosive effect that this and previous issues I have raised around LPC communications and actions must be having on the legitimacy of the LPC in the eyes of its members let alone other interested and affected public- and I see questions of legitimacy of the LPC on social and other media platforms on almost a daily basis now – it would seem that the LPC may well be in reality not just perceived danger of losing its ability to perform its functions effectively and efficiently. The way to deal with such things as incompetence would seem to be by way of s14 of the Legal Practice Act 28 of 2014. However, as far as I can see, this has as yet to commence. Can anyone advise when that s14 is planned to be commenced? Or am I wrong? It would seem from other communications from the LPC that the LPC considers the whole of Act 28 of 2014 to be in force. If I’m wrong, pretty please can someone point me to when and by what means s14 of Act 28 of 2014 commenced?
A last point twelve emerges from the eleventh: The non-commencement or fuzziness around the commencement of Act is a not so little prejudice to the rule of law, which also has a cumulative impact on the rule of law. Especially in relation to the commencement or non-commencement of a provision that would subject those wielding authority in an incompetent Council subject to their Council being dissolved. Take a look at s14 of Act 28 of 2014.