Need to take on ‘activist roles’
• Attorneys key to enforcing checks and balances
South African bureaucracy has failed to adequately educate itself on the country’s constitution and its meaning for governance since 1994, says founding attorney of Cape Town-based law firm Eisenberg & Associates, Gary Eisenberg.
This, he says, underscores the important role attorneys play in enforcing checks and balances against overzealous public officials, and reminding them they are bound by the country’s bill of rights.
One of the consequences of insufficient training, says Eisenberg, who was recently named SA’s best immigration lawyer by his peers in Best Lawyers for the eighth consecutive year, is that often bureaucrats are intimidated and threatened by lawyers, a phenomenon not conducive to effective and objective communication and outcomes.
“When I began practicing law in SA more than 20 years ago (he was educated in the US), I decided I was going to practise South African immigration law by being technical and legalistic,” he says. “Immigration law is not just a case of pushing papers around; it is a system of legislation within a constitutional context and my expertise is administrative and constitutional law.”
This, however, is not understood in an environment that is largely unregulated. Unlike requirements in other countries, it is not necessary for immigration service providers to be qualified lawyers in SA. The market is predatory and, because the country is a draw card to foreigners, immigration service providers prevail, regardless of their proficiencies or lack thereof.
There are official challenges too. Where members of the state’s immigration inspectorate — responsible for investigating whether foreigners are complying with the terms of their visas, working legally and so on — are not sufficiently trained in law and do not understand statutory interpretation or the constitution, they can become unnecessarily obstructive when lawyers are involved, he says.
“Bureaucrats with insufficient training and knowledge get upset when lawyers interpose themselves between people and the state. They are intimidated when I remind them of constitutional principles, and basic jurisprudential rulings. They are empowered to make important decisions affecting people’s lives, but don’t like attorneys being there. You get the sense these officials are threatened by their own lack of knowledge in the substance of their jobs.”
Eisenberg, an outspoken professional in his field, says he is “fascinated by the growing contempt the state has for the rule of law and the role of lawyers in representing their clients — the marginalisation of constitutional values in public administration is an essential element in the degradation of our democracy”.
The lack of training of bureaucrats in the values and principles of constitutional governance, he says, makes this an increasingly important issue.
“Attorneys are an extension of the judiciary; they are officers of the courts. Lawyers need to take on activist roles, such as that demonstrated by people including Judge Dennis Davis. It’s the kind of approach I have taken in my practice and, I believe, the role lawyers have to play in a young democracy.”