Respected lawyer and entrepreneur Max Boqwana has said that lawyers’ actions in South Africa must be continuously informed by the values of our Constitution, especially its preamble setting out the basis for progressive application of law whilst addressing the injustices of our past.

He was addressing delegates on Thursday on the role of lawyers in promoting good governance at the eleventh Premier Corporate Governance conference in Montecasino organized by Chartered Secretaries Southern Africa.

Boqwana is a senior partner of law firms Boqwana Loon & Connellan and Boqwana Burns, where his areas of practice involve constitutional and administrative law.

It is the ethical and professional responsibility of lawyers to advise their clients according to good practices.  

“Lawyers cannot simply be the defenders of the client’s interest without the need to balance this interest with that of broader society. The idea that cash is king can lead to extremely devastating effects. Conscientious lawyers must therefore balance the short-term interests, which normally are measured in financial benefits, and long-term financial interest, which should be measured on sustainable financial returns on good practices,” said Boqwana. 

He stressed that lawyers should ensure that the traditional principles of good governance, such as integrity, fairness, competency, transparency, responsibility and accountability, were adhered to.

“These in my view are not just exotic principles but are the essentials for business growth, sustainability, increasing of shareholder value and social goods like increasing the levels of employment,” he explained.   

He said that when such values were abandoned it resulted in negative effects like revenue losses, tumbling share prices, loss of jobs and at worst the eventuality of a company closure.

“It is obvious that despite clarity on the role of lawyers, as set out, they largely fall short of the standards required. The ethical and professional responsibility of lawyers in the context of South Africa are fully set out in the code of conduct published in terms of Section 36 of the Legal Practice Act where there are 16 clear responsibilities.”

Boqwana said out of the 16 responsibilities the most important responsibilities were that lawyers be required to maintain the highest standard of honesty and integrity.

CORRUPTION

He said they were required to uphold the Constitution of the republic and the principles and values enshrined in our Constitution.

“It is a fact that the legal profession in our country has fallen short of these standards as evidence by their role in cases with which many of us today are too familiar,” he added.    

“The same conclusion can be reached when we look at the looting of the Passenger Rail Agency of South Africa, the extreme levels of dishonesty and governance failures at Denel, and the destruction and manipulation of facts and information at South African Revenue Service as reflected by Justice Nugent.”

“[We can also point to] the use of the veneer of legality and accounting regularities to fleece poor depositors and public funds at VBS with absolutely shameless disregard; the fact that fictitious companies can be set up by a single foreign family contrary to every rule of governance with the strong purpose of weakening State institutions and repurposing them as vessels leasing money out of our own country; the contract mismanagement and failures of governance at Eskom, which today threatens the very sovereignty of our country; the continuous facilitation of collusive and anti-competitive links and illicit financial flows which in the end has a direct impact on the lack of economic growth, deepening levels of inequality in our country,” he explained.

Boqwana said it was clear that this behavior had been pervasive and abetted by members of the profession, stressing that there was a responsibility for lawyers to ask themselves prior to giving advice or guidance whether such advice or guidance promoted good governance in the holistic sense or whether it undermined the public interest.

“Lawyers occupy a special role in our society and the honourable profession because they are supposedly the guardians of values, the guardians of ethics and the guardians of good governance,” highlighted Boqwana.

He went on to say that the question we needed to ask was ‘who will guard these guardians and how did we end up at the place we are today?’

WHISTLE BLOWERS

Boqwana revealed that he advised former Finance Minister Mcebisi Jonas to run as far as possible after he was offered money by the fugitive Gupta family in exchange for taking the position of Finance Minister under former President Jacob Zuma’s leadership.

“We understood that if we exposed what was happening we were going to be the ones suffering rather than the criminals. When the whole thing was exposed, it was followed by loss of jobs, loss of ministerial packages and eventually followed by us being cornered by the leadership of police, literally - not just any police, elite police asking us to stop and say the whole thing was a joke,” he said.

Boqwana said after much deliberation with Jonas they decided to stick to their guns because what the police were asking them to do was against their values and the Constitution we as South Africans were expected to promote.

Stressing the point that whistleblowers were not protected in our country, Boqwana said they were exposed to threats and all manner of things when the issue went to the Zondo Commission and the Public Protector.

In conclusion, he said the treatment of whistleblowers in South Africa was problematic and the legislation was barely intact.

“If the treatment of a deputy minister of finance is like that, how much more [will] a cleaner in a company that have seen somebody stealing money [be at risk]. We need to find ways of protecting whistleblowers.”