Business Day

Need to take on ‘activist roles’

• Attorneys key to enforcing checks and balances

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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.”

 ??  ?? Gary Eisenberg … technical.
Gary Eisenberg … technical.

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