How do we judge the lawyers?

2013-10-10 10:00

The Marikana Commission of Inquiry has brought to the fore the question of what fees, if any, may acceptably be charged by a public-interest lawyer.

This has, at the same time, exposed the standards by which we judge both the honour, and the ability, of public-interest lawyers.

It seems the public requires these lawyers to dress in rags or live on the poverty line to prove their integrity (and, it would therefore appear to follow, their merit). But the opposite is true of every other lawyer who is required to demonstrate his or her ability by proving their financial success.

This not only dissuades many competent lawyers from doing public-interest work, it ensures fees are driven up in other fields, where a lawyer’s ability is judged by his or her wealth.

The conversation goes like this: Advocate Dali Mpofu, who represents the wounded and arrested Marikana miners at the inquiry, should work for free or for a reduced fee because public-interest lawyers should not earn large fees for rendering that service.

This begs the question: why not? Nobody is criticising divorce lawyers, criminal lawyers or labour lawyers for their fees.

They, too, represent clients who are often victims of circumstances outside their control. They, too, are taking money from clients in circumstances where the clients are desperate and need to have their voices heard.

Many of them are the wealthiest lawyers around.

Yes, there is legal aid for those who qualify for it. Most people don’t, and the void between those who qualify for it and those who can afford “expensive” lawyers is filled with thousands of average South Africans.

We all know the risks of inadequate legal representation in criminal trials and divorces. Where is the outcry about exorbitant fees charged by these lawyers? There isn’t one. In fact, these lawyers are sought-after precisely because their fees are used as a gauge of their ability.

Could it be because the top echelon of these lawyers are white? Could it be because we, as a nation, generally regard “public-interest work” as something “other people” need.

It is there for the poor, the downtrodden?…?not for the average South African.

When will we, as a nation, cease to be suspicious of the motives and actions of a successful black man? When will white South Africans stop trying to dictate the choices of black South Africans? When will we realise the fight for public rights and interests is our fight, and the issues that are frequently being discussed are our issues?

When will we realise the fight for access to adequate and equal legal representation has not yet been won?

It is patently unfair to limit the victims of our unequal society to the overburdened legal aid system, or hiring whatever lawyer they can afford.

Right now, that is the system we have, and it needs a revamp.

The Marikana massacre was the worst state-perpetrated assault on human life since apartheid. Surely it deserves to have us think outside the box imposed by the system, of making an exception in our thinking?

Surely we should all be crying for parity at the commission? If we are of the view that the state should not fund the miners, then let us say, then, that Lonmin and the state should also rely solely on evidence leaders at the commission and deny them independent legal representation (which is what we are denying the miners).

At the very least, we should acknowledge that we are all looking at this issue through the lenses of our particular social circumstances, and that our judgement of what constitutes “exorbitant” legal fees for the miners is based on the value we place on the lives that were lost, the right of their families to be heard and the right to hear the truth.

»?Lomax is a Joburg-based attorney and a founding member of Citizens4Marikana

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