- The taxi rank principle requires advocates to represent clients who need legal representation, regardless of how unpopular or controversial those clients may be.
- Black Consciousness raises questions about the ethical responsibility of lawyers who use the language of liberation while representing people accused of exploiting the communities that liberation was meant to serve.
- The deeper question is whether professional duty, personal conviction and financial interests can coexist without compromising a lawyer’s principles.
Over the last few decades, we have witnessed what appears to be a strange contradiction among some radical black legal practitioners. They speak passionately about liberation, equality and Black Consciousness, yet they are also prepared to accept substantial fees from clients accused of contributing to the suffering and economic exclusion of black people.
Their response is straightforward. “I am an advocate. My job is to defend the accused until they are found guilty or not guilty. Everyone has the right to a lawyer.” It sounds principled. It sounds constitutional. It sounds like the rule of law.
But harder questions remain. Is it principle, or is it an obsession with money? Can a person serve money and justice at the same time? Can someone quote Steve Biko in a Black Consciousness lecture on Saturday, defend people accused of looting public resources on Monday and still regard himself as a disciple of the philosophy?
South Africa has become comfortable with this contradiction. The freedom fighter becomes the lawyer for the alleged looter. The Pan Africanist invoices the alleged neocolonialist. The revolutionary bills by the hour. We need to examine that contradiction honestly.
The South African legal profession recognises the taxi rank principle. In simple terms, an advocate who is available and competent to take a matter is generally expected to accept a brief, regardless of whether the client is popular or unpopular, provided the applicable professional rules are satisfied.
There is a compelling reason for this principle. Without it, unpopular accused people could find themselves without representation because lawyers might refuse to act for them on moral or political grounds. That principle protects the integrity of the criminal justice system. It is why even people accused of the most serious crimes are entitled to legal representation.
It is also why people accused of politically abhorrent conduct have historically been represented in court. So, legally, a black advocate can defend a white executive accused of corruption, a black politician accused of stealing public money, a gang leader accused of violent crimes, a former MEC facing allegations of wrongdoing or a businessman facing allegations before a commission of inquiry.
The Constitution protects the accused person’s right to a fair trial and legal representation. But legality is not morality. That is where Black Consciousness enters the conversation.
Biko did not die for legal technicalities
Black Consciousness is not simply a career identity. At its core, it is a philosophy about the psychological, social and material liberation of black people. Biko’s legacy cannot be reduced to slogans printed on conference programmes. His thinking challenged Black people to reject psychological subordination and to take responsibility for their liberation.
That raises an uncomfortable question for anyone who claims Black Consciousness as a guiding philosophy. What happens when professional success depends on representing people accused of undermining the very communities whose liberation you publicly champion?
When you represent someone accused of undermining public institutions, stealing from clinics and schools, manipulating government procurement or depriving poor communities of resources, you are performing a legitimate legal function. But you are also making a professional choice about where to deploy your expertise. That distinction matters.
The young man from Mdantsane who is arrested for possession of dagga is unlikely to have the resources to pay senior counsel tens of thousands of rand for a day in court. He is far more likely to depend on an already overburdened Legal Aid lawyer. The people capable of paying enormous legal fees are often powerful individuals and corporations facing serious allegations involving corruption, State Capture, financial misconduct or the abuse of public resources.
That does not mean they should be denied legal representation. It means we should ask what happens when the most sophisticated legal minds in the country repeatedly become available to those with the greatest financial resources while the poorest accused struggle to obtain meaningful representation.
When an advocate uses their expertise to challenge evidence, expose weaknesses in the State’s case, secure bail or insist on procedural fairness, that is the advocate doing the job the legal system requires. But when legal processes are deliberately manipulated to delay accountability, a different ethical question arises. Is the law being used to protect justice, or merely to postpone it?
The two types of black lawyers
History provides powerful examples of lawyers who used the law as an instrument against oppression. Griffiths Mxenge, Victoria Mxenge, Dullah Omar, Priscilla Jana, Nelson Mandela and others demonstrated that legal practice could become part of the broader struggle for political and social transformation. They represented people who were oppressed, detained, banned, tortured and prosecuted by an unjust system. In many instances, their work came at considerable personal and professional cost.
There is another type of lawyer who has emerged in democratic South Africa. This is the highly successful black legal practitioner whose public language remains rooted in liberation while whose professional practice is increasingly tied to powerful economic and political interests. The contradiction is not that such a lawyer represents an unpopular accused person.
The contradiction arises when the lawyer presents himself as a champion of liberation while refusing to confront the ethical implications of repeatedly serving the interests of people accused of undermining that liberation.
The taxi rank principle does not require an advocate to become the permanent legal representative of people accused of corruption. It does not require a lawyer to pursue every lucrative brief. It certainly does not require a legal practitioner to build a professional reputation around defending politically connected clients while remaining silent about the social consequences of the alleged wrongdoing.
A lawyer can accept a brief and still believe that the accused deserves a fair trial. That is entirely consistent with the rule of law. The more difficult question is whether the lawyer can then use the same platform to preach about integrity, ethical leadership and liberation without acknowledging the tension between those ideals and the interests represented in their professional practice.
Can you serve money and justice?
The central question is not whether lawyers should be paid. Of course they should. Professional expertise has value, and advocates are entitled to earn a living from their work. The question is when professional success becomes so dependent on wealth and power that financial interests begin to influence the causes a lawyer is willing to champion.
Money becomes an ethical problem when a lawyer’s professional model makes it impossible to represent poor communities because their matters cannot generate the fees demanded by the practice. It becomes an even deeper problem when corruption and political influence create some of the most lucrative legal work, while the communities affected by that corruption remain without adequate access to justice.
A lawyer who earns millions defending wealthy clients is not automatically unethical. Nor does accepting a brief from a controversial client make someone an enemy of liberation. The issue is more complicated.
A principled Black Consciousness lawyer could reasonably say, “I will defend any accused person because the Constitution requires a fair trial, but I will not allow my professional skill to become an instrument for permanently frustrating justice. I will devote part of my practice to communities that cannot afford me. I will speak honestly about the system that produces both my clients and their victims.” That is where professional responsibility becomes more than a slogan.
The uncomfortable answer
So, can a staunch black advocate and Black Consciousness exponent defend people accused of bribery, corruption and undermining the vision of a liberated South Africa? Legally, yes. Ethically, the answer requires greater introspection.
There is nothing inherently contradictory about defending an accused person while believing that the person may ultimately be guilty. The criminal justice system depends on lawyers who are prepared to represent unpopular clients. But there is a difference between defending an accused person’s constitutional rights and becoming so financially dependent on powerful clients that their interests begin to define your professional identity.
A lawyer can say, “I am doing my job. My client has a right to a defence, and I will provide that defence.” What becomes harder to reconcile is taking millions from people accused of exploiting the public, enjoying the privileges those fees provide and then standing on a podium to preach about Biko, Fanon, ethical leadership and liberation without confronting the contradiction.
That is where the question moves beyond legality. It becomes a question of conscience. Perhaps the most important question for today’s black legal practitioner is therefore not whether the law permits them to represent a particular client. The law is clear about the right to representation. The harder question is what the lawyer does with the freedom that the law provides.
Biko chose. Mxenge chose. The lawyers of the liberation struggle made choices about where they would deploy their talents, often at enormous personal cost. Today’s senior counsel has choices too. The question is not whether the law allows them to make money. The question is whether, somewhere between the brief, the invoice and the podium, they are still asking themselves who their work ultimately serves.
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The opinions expressed in this article are solely those of the author and do not necessarily reflect the views of Conviction.co.za
