LJU4802 Exam Pack.

LJU4802 Exam Pack. A judge may be removed from office only if the Judicial Service Commission (JSC) finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct, and the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members. The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed. The President, on the advice of the JSC, may suspend a judge who is the subject of a procedure regarding that judge’s removal from office. ANSWER 5 Utilitarianism may be considered as one of a number of outcomes oriented or teleological theories of ethics. The basic idea behind teleological theories of ethics is that, ultimately, the only thing that is relevant in determining whether or not an action is right or wrong is the purpose which the action is intended to achieve. Hence, teleological theories are often called consequentialist theories. Moral judgment in the case of utilitarianism boils down to the decision whether or not a given result is useful. A useful result is one that induces and promotes the greatest happiness of the greatest number in society. Jeremy Bentham is a famous legal philosopher who argued that the whole of the legal system should be based on the utilitarian idea that all laws should aim to achieve the greatest good for the greatest number. The condition of “of the greatest number” is very important. For a lawyer to get someone accused of murder off the hook is not good ethically speaking because that will make only the two of them happy while the rest of the community will feel unhappy! The problem with utilitarian ethics is on the one hand that there are no clear cut criteria for usefulness to introduce the happiness of the greatest number is only to replace the problem, namely, criteria for happiness and the greatest number. On the other hand not everything that is useful is by necessity right. There are useful things that may be ethically wrong, for example the abuse of scientific and technological processes. Also, a person’s objective may not be realized; Someone may jump into a river to save a drowning child and they may be too late, however this attempt is evaluated as morally good. The question arises whether any means may be used to achieve the happiness of the greatest number or in pursuit of a good purpose. To hold that the end justifies the means would mean, for example, that if a lawyer is convinced of the innocence of his or her client, he or she may lie in court, or even plot the murder of the judge in order to vindicate his or her client’s innocence. Pg. 7 © 2018 Together We Pass. All rights reserved. ANSWER 6 6.1 The question of who can be a legal practitioner in South Africa is strictly regulated by legislation and by the inherent common-law right of the court to regulate its own processes. It is not sufficient to have a thorough knowledge of the law to become a legal practitioner. Even those with all the relevant legal qualifications and degrees will be admitted to the legal profession only once they have proven that they are indeed “fit and proper persons” for the legal profession. Membership is subject to extensive character screening. The Attorneys Act states that a court may only enrol an applicant if “such a person, in the discretion of the court, is a fit and proper person to be so admitted and enrolled”. The Act states that a practising attorney may be struck off the roll if that attorney “in the discretion of the court, is not a fit and proper person to continue to practice as an attorney”. 6.2 It is in the court’s discretion to either suspend or strike the practitioner off the roll. In terms of the Attorneys Act an attorney may, at the instance of the law society concerned, be struck from the roll or suspended from practice by the court if he or she, in the discretion of the court, is not a fit and proper person to continue to practise as an attorney. The penalties are aimed at the following: to discipline and punish errant attorneys, and to protect the public. Striking off is usually reserved for attorneys who have acted dishonestly, while transgressions not involving dishonesty are usually visited with suspension from practice. 6.3 If an attorney is struck from the roll, he or she will not be readmitted unless the court can be satisfied that the applicant has genuinely reformed, that a considerable period elapsed since he or she was struck off the roll, and that the probability is that if reinstated, he or she will in future conduct him or herself honestly and honourably. Pg. 8 © 2018 Together We Pass. All rights reserved. LJU4802 Exam Paper Oct/Nov 2016 ANSWER1 Many ethical and legal philosophers have found very little value in the traditional rule based approach of lawyers towards ethics. In terms of this approach, most of what is called legal ethics is similar to rules made by administrative agencies. It is regulatory. Its appeal is not to conscience but to sanction. It seeks mandate rather than insight. A lawyer with this formalistic and positivistic approach to law or legal philosophy will tend to understand his or her ethical responsibilities as a question of complying strictly with a codified set of rules. These rules will then fully prescribe what he or she may or may not do in a given situation. This kind of lawyer will understand ethics as a question of complying with the general rules. It may also be said that such a lawyer will adopt a rule based (Kantian) approach to ethics. A formalistic approach to ethics will tend to focus on those minimum standards and rules which could be strictly enforced by law societies. A lawyer adhering to a rule based or formalistic approach to law would be adopting a “bad man” approach to the law, and this is highly problematical and one of the reasons for the ethical crisis in the profession. It leads to role differentiated behaviour between lawyers and clients. Utilitarianism may be considered as one of a number of outcomes based theories of ethics. The basic idea is that ultimately the only thing that is relevant in determining whether or not an action is right or wrong is the purpose which the action is intended to achieve. Hence the theory is also called consequentialism. Moral judgement in the case of utilitarianism boils down to the decision whether or not a given result is useful. A useful result is one that induces and promotes the greatest happiness of the greatest number in society. Jeremy Bentham is a famous legal philosopher who argued that the whole of the legal system should be based on the utilitarian idea that all laws should aim to achieve the greatest good for the greatest number. The condition of “the greatest number” is very important. For a lawyer to get someone accused of murder off the hook, is not good ethically speaking because it will make only the two of them happy while the rest of the community will feel unhappy! The problem with utilitarian ethics is on the one hand that there are no clear cut criteria for usefulness to introduce the happiness of the greatest number is only to replace the problem namely, criteria for happiness and the greatest number. On the other hand not everything that is useful is by necessity right. There are useful things that may be ethically wrong, for example the abuse of scientific processes. The question arises whether any means may be used to achieve the happiness of the greatest number or in pursuit of a good purpose. To hold that the end justifies the means would mean, for example, that if a lawyer is convinced of the innocence of his or her client, he or she may lie in court or even plot the murder of the judge in order to vindicate his or her client’s innocence. In the context of legal ethics, Pg. 9 © 2018 Together We Pass. All rights reserved. professional guidelines as such could be justified on utilitarian grounds. They are useful in that they help the practitioner avoid making errors that could lead to disciplinary action. They are there to satisfy clients so that the practitioner’s practice may benefit. They may even help to improve the public image of the profession and promote the public perception that the professions are regulating themselves properly, thereby avoiding government regulation. The requirement that a lawyer must have good moral standing before admission, for example, not only protects the public, but also the profession’s interests and image. Character screening, as well as censure for those who break the rules, are seen as useful tools in preserving professionalism. But, by granting all this, we are not saying utilitarianism is the final answer to legal ethical worries. As indicated above our ethical concerns are not limited to results motives are also important. Moreover, the application of any rule requires that the context be considered too. Ethical evaluation cannot be reduced to the mindless application of a number of rules formulated to result in a desired outcome. Even when professionals go beyond the ethical minimum expected of them by the professional guidelines and aspire to be highly ethical, one could argue along utilitarian lines that the consequences of their action may be increased material reward and the esteem and respect of their community. In ancient Greek philosophy virtue was regarded as an excellence and accordingly, all ethics was virtue ethics. Aristotle did not base his ideas about ethics on rules that had to be obeyed, but on excellence of character. Aristotle described the kind of person you should strive to become, and which character traits were virtuous. When deciding how to act the question is not simply what the rules prescribe, nor what would be useful to achieve, but what a person of good moral character would do in the same circumstances. Such a person will seek to act with virtue in a moral crisis which Aristotle defines as the mean between two vices. Thus in the sphere of fear and confidence, rashness is the vice of excess, and cowardice is the vice of deficiency. Between the two vices lies the virtue of courage. Thus the moral demand: always to act in a courageous manner. According to Aristotle, some of the virtues essential to a perfect life can only be developed by participating in the public affairs of the state. A life spent in pursuit of private affairs would thus be a life deprived of an essential component of life. It is only by living the life of an active citizen that one may develop all the moral and intellectual virtues fully. He believed that a life devoted to public political affairs was the highest level of life that could be attained. Contemporary virtue ethics is, in part, a revival of Greek thought. It is focused on questions such as: what makes a particular human quality a virtue? What is the relation between being a virtuous person and doing the right thing? The crucial point about contemporary virtue ethics is that it centres on the search for the specific virtue (excellence) required in order to act ethically in a given situation. The mode of conduct to adopt in a given situation is determined by the type of person you want to become, the excellence or virtue you want to embody, and not by what a rule prescribes or what results you want to achieve. Anthony Kronman is one philosopher who has adopted a virtue based approach to the ethical conduct of lawyers. He suggests that a life in the law is valuable not because of money or status but because of the unique type of person or character it allows the lawyer to become. The primary virtue of lawyers is the ability to make good, reflective judgements. In Aristotle’s philosophy, man could strive to become more virtuous, and most virtue ethicists claim that virtue is inherent and consistent in all people and can indeed be developed. Pg. 10 © 2018 Together We Pass. All rights reserved. Some virtue ethicists maintain, however, that the possession or non-possession of specific virtues is a matter of a natural gift. It is a talent that you may or may not have. A talent is something that you cannot learn or acquire. You either have it or you don’t. Therefore, virtue cannot be learnt. Now if virtue cannot be learnt, it should follow that those who are not gifted with virtue cannot be expected to act ethically. Critics of virtue ethics thus conclude that virtue cannot be the foundation of ethics and morality, or that if virtue is the foundation of ethics and morality, only those who have the natural gift of specific virtues may b subjected to moral judgement. A number of feminists writing about the law developed a distinctive version of virtue ethics. They argue that the influx of women into the legal profession might bring about significant changes in the practice of law. “Feminine” traits such as empathy, care, nurturing and social commitment may transform legal ethics and processes, as well as the image of the typical “legal profession”. Postmodernism is a reaction by contemporary thinkers against the Western scientific model of rationality in 17th century Europe. One of the characteristics of postmodernity is the view that universal morality has come to an end. A single universal ethical code applicable to and binding on everyone at all times is not part of postmodern ethical thinking. Postmodernism is characterised by 1. the demise of the belief in the universal validity of a particular (Western) lifestyle or morality, 2. the celebration of difference, 3. the rejection of absolutes as well as universals, and 4. The recognition of the necessity to accept uncertainty and indeterminacy as a way of life. In light of the above, the question arises whether it is possible to have law in postmodern times. From a rule based perspective, law is underpinned by universal rules and principles which can be applied to all situations. Law constitutes and establishes a sole, definite and authoritative point of reference in terms of which human conduct must be judged. However, this is precisely what postmodern ethics denies and rejects. This is the reason why we end up without a substantive or moral or ethical code for the postmodern period. The uniqueness of the particular situation, or the difference involved in every other person, cannot be captured through general or universal rules. To be receptive to otherness and difference in a truly open pluralistic and democratic world, practical norms cannot take the form of general rules or principles. ANSWER 2 Initially, a character test was applied by our courts and the question was whether the political motive behind the criminal conduct reflected a corrupt character. With the rise of the apartheid state, however, more and more emphasis was placed on legal practitioners’ duty to obey the law as such. One of the earliest cases in which the influence of a criminal conviction on professional membership was investigated was Ex parte Krause*. Krause was a practising advocate. Pg. 11 © 2018 Together We Pass. All rights reserved. He was taken prisoner of war by the British troops and released on parole in England, where he obtained permission to practise law. While in England, he wrote a number of letters to a former colleague of his in Johannesburg in which he suggested that the author of a series of newspaper articles describing the Boer forces as outlaws should be killed. On the basis of these letters, Krause was subsequently convicted in England of attempting to incite murder. When he returned to South Africa after the war and the expiry of his sentence, he resumed his practice as an advocate at the Cape Bar. He then applied to be admitted as an advocate of the newly constituted Transvaal Supreme Court, on the basis that he had been a member of the bar of the defeated ZAR. The Transvaal Bar Council took a resolution stating that it had no objection to his admission to the Transvaal Bar. The court decided in favour of Krause’s admission to the Transvaal Bar. It held that as a general rule, persons with previous convictions would not be admitted to the legal profession. However, it was not the mere fact of a previous conviction that mattered, but the question whether the conviction reflected negatively upon the “personal honour” of the person involved. However, in cases where the criminal offence was committed with a political motive and was not borne out of spite, or in an attempt to unlawfully further the private interests of the offender, the criminal offence would not reflect negatively on the moral character of the person involved. This principle was applied again fifty years later in the context of another political struggle. Nelson Mandela had participated in the Defence Campaign against the apartheid Government in the early 1950s and as such violated a number of apartheid laws. In the court case that ensued (Incorporated Law Society, Transvaal v Mandela*), the court examined the principles for the removal of a legal practitioner from the roll. The court confirmed that the fact that an attorney had been convicted of a crime is prima facie evidence of misconduct. However, the fact that you deliberately disobeyed the law does not necessarily disqualify you from practising law. In this case, Mandela was motivated by a political vision of a non-racial South Africa and although the campaign of civil disobedience which he instigated was unlawful, his conduct was not of a dishonest, disgraceful or dishonourable kind. Despite his questioning of the law and acting consistently with that questioning, Mandela was found to be a “fit and proper person” and was accordingly not struck off the roll. Matthews v Cape Law Society* is another case which resulted from the Defiance Campaign in which Mandela took part. However, this case brought about an important shift in the law. It brought an end to the investigation into the character of politically motivated legal practitioners. From then on, struggle lawyers would rely on the old character test, while the establishment would rely on the duty to obey the law. The Cape Law Society refused to register Matthew’s articles of clerkship because he had two previous convictions under the Suppression of Communism Act. In deciding against the applicant, the court rejected the character approach adopted in Mandela and Krause because of its narrow scope. The court now reasoned that the real question was not whether participation in the Defiance Campaign disclosed a lack of integrity, honesty, and honour, but whether it could be reconciled with the duty of an attorney to uphold all the existing laws of the land. In Society of Advocates of SA (Witwatersrand Division) v Fischer* the court referred briefly to the character approach of Mandela and to Bram Fischer’s character, but the duty approach of Matthews carried the day. Bram Fischer was a practising advocate and member of the South African Communist Party. He too decided to challenge what he considered to be the unjust laws of the land. It was in the course of this challenge that he was arrested in September 1964 and charged under the Suppression of Communism Act. He applied for bail, which was granted, but did not return to stand trial. The court found that Fischer had deliberately misled the court when he applied for bail, that this contempt of court amounted to dishonest conduct, and that it reflected negatively on his character.