The Trengove Talks part 2: how legal ethics flew out with al-Bashir

Legal ethics are of the utmost importance in the legal profession given that in most cases, the goal is to obtain justice. When legal ethics are lacking, this can have dire consequences, and a perfect example of this is the way that Sudanese President Omar al-Bashir escaped South African custody due to a lapse in legal ethics. Adv. Wim Trengove SC, giving a lecture to Rhodes final year law students, elaborates upon this example.

Wim Trengove, Picture from The Times

Wim Trengove SC is one of South Africa’s sharpest legal minds having appeared in all southern African courts and is an Honorary Professor at the University of Cape Town and Rhodes University law schools. Picture sourced from: The Times

“The original urgent application is where the ethical issue arises…and the timeline is very important,” explained Trengove. The International Criminal Court (ICC) issued three warrants for the arrest of President al-Bashir for the holy trinity of international crimes, namely genocide, war crimes, and crimes against humanity. South Africa as a party to the Rome Statute (which established the ICC) was under a duty to arrest al-Bashir if he appeared within our jurisdiction. As we all know however, this did not happen.

On Sunday 14 June 2015, the Pretoria High Court heard an urgent application from the South African Litigation Centre (SALC) regarding al-Bashir’s presence in South Africa for African Union business, and South Africa’s international obligations to arrest him. The State was originally represented by junior advocate Ellis, who originally said that the State would argue a legal point and would reconvene later in the day. When they reconvened later in the day, Ellis was being led by a different advocate, William Mokhari, who claimed that the State needed time to file an answering affidavit. “With the benefit of hindsight, it is clear that the State was playing for time,” Trengove noted.

The deadline for the State’s answering affidavit was at 9:00am the next day (Monday), however the answering affidavit was only filed at 11:30am at which point the State appeared again with a whole entourage of other officials, including the then head of high priority crimes at the National Prosecuting Authority (NPA), Shaun Abrahams. Abrahams has subsequently been appointed as head of the NPA. The court asked Adv. Mokhari whether al-Bashir was still in the country and on Mokhari’s assurance that he was, the case was postponed until 1 pm. When the court reconvened, they asked again if al-Bashir was still in the country as the news media was reporting that he had left. Again, they were assured that he was. The argument was completed at 2:30pm when the court ordered the arrest of al-Bashir, however Adv. Mokhari then disclosed to the court that al-Bashir had already left the country from Waterkloof airbase at around 11:30am.

Omar Hassan Ahmad al-Bashir, president of Sudan, listens to translated remarks during the opening of the 20th session of The New Partership for Africa's Development (NEPAD)

Sudanese President Omar al-Bashir at the 12th African Union Summit. Image sourced.

When the case went to the Supreme Court of Appeal (SCA), the SCA found that either Adv. Mokhari had lied to the court, his clients had lied to him, or both had lied. The Johannesburg Bar Council found that Adv. Mokhari did not act improperly, however, based on the assumption that he had merely repeated what he had been told. The issue of who lied to Mokhari has never been properly investigated. All that is clear, is that the State played for time, and it succeeded. This raises an issue in legal ethics however as to what to do if your client asks you to play for time.

“When it comes legal ethics, there are two rules,” explained Trengove. The first is that you have a duty to your client whereby you owe your client absolute confidentiality and you are not to sit in judgment of the client or their instruction. The second rule is that you have a duty to the court to not be party to a dishonest case. This means that you may not advance a case that you know to be untrue. In circumstances where you know a case to be untrue, you are required to inform your client that you will not run it because it is untrue and step down from the case, or alternatively persuade your client to let you run it honestly. The client must then either allow you to present the true version or fire you. In Trengove’s opinion, however, there are sometimes exceptional circumstances where there are moral values that should take precedence over this rule. “It is not good enough to always uphold the rule for the sake for our own ethical purity, if other people pay the price,” he explains.

In terms of al-Bashir’s case, Trengove believes that if you are acting as the State lawyer, your duties as a lawyer should be even higher as the State has special constitutional and ethical duties. These obligations are partially laid out in s 7(2), s 165(4), and s 195(1)(a) of the Constitution. When you represent the State, you are not representing government officials but rather South Africa and the public interest. The State is your client, not particular officials.

So what is the workaround if you do not know the truth of the matter? In short, if you are asked a question and you do not know the truth, the proper answer is “my client instructs me that”. Do not just say “yes” or “no” as this has implications on you and your word. Even if you suspect your client of being guilty, the advocate’s job is to put forward the best possible case and for the judge to decide it, not for the advocate to sit in judgment. The limit is that an advocate must not run a dishonest case. You cannot have a system where advocates will only represent someone they believe to be innocent.

Trengove concluded his presentation with some final points he believed to be important. Firstly, there is no duty on a lawyer to ex post facto expose a client (for example at the end of a case when the client tells you they are in fact guilty). As long as you were not party to the dishonesty, there is no duty to go and inform the judge. His final point speaks to an advocate’s relationship with his/her client. An advocate must never tell a client to keep the truth from them just so that they can run the case. “It is wrong to tell the client to not tell you the truth as it encourages the client to lie to you,” explained Trengove, which is clearly unethical.

 

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